Com. v. Brady

• Citation: 508 A.2d 286,510 Pa. 336
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. James BRADY, Appellee.
• Decision Date: 23 April 1986
• Court: United States State Supreme Court of Pennsylvania

Page 286

508 A.2d 286

510 Pa. 336

COMMONWEALTH of Pennsylvania, Appellant, v. James BRADY, Appellee.

Supreme Court of Pennsylvania.

Argued Oct. 25, 1985.

Decided April 23, 1986.

[510 Pa. 338] Stuart Suss, Asst. Dis. Atty., for appellant.

Jeremiah Kane, Asst. Public Defender, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

NIX, Chief Justice.

The question here presented is whether an interlocutory appeal pursuant to Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), should be permitted from the denial of a motion to dismiss an information on double jeopardy grounds where the hearing court has determined the motion to be frivolous. Having fully considered that issue, we conclude that in such circumstances an interlocutory appeal is unwarranted and review must be sought by means of a direct appeal following retrial.

I.

Appellee James Brady was charged with violating section 3731 of the Vehicle Code, 75 Pa.C.S. § 3731, "Driving under influence of alcohol or controlled substance." Prior to trial the Court of Common Pleas, on motion of appellee, excluded any testimony concerning his prior admission to an Accelerated Rehabilitative Disposition ("ARD") program in connection with a prior violation of section 3731. ¹ Trial commenced on January 8, 1985. During trial the arresting officer was asked by the prosecution if he had had an opportunity to observe appellee. In responding, that officer testified that appellee mentioned to another officer at the scene that he (the officer testifying) had stopped appellee on a previous occasion. Defense counsel then made a motion for a mistrial, which was granted.

On January 28, 1985, appellee filed a motion to dismiss the information asserting a double jeopardy claim. After conducting a hearing on the motion, the hearing court issued a memorandum opinion finding that there had been no intentional prosecutorial misconduct, concluding that the double jeopardy claim was frivolous, and denying the motion to dismiss on January 30, 1985. That same day, having been advised that appellee had filed a notice of appeal in the Superior Court, the Court of Common Pleas by separate order declined to stay retrial pending appeal. Later in the day Judge Cavanaugh temporarily stayed a retrial, and on February 1, 1985, the temporary stay was continued pending disposition of the appeal before that Court.

The Commonwealth filed an application to "Lift Stay of Criminal Trial" in this Court. The Commonwealth subsequently filed a second application requesting this Court to assume plenary jurisdiction of the matter. We granted the application to assume plenary jurisdiction, directed a transfer of the pending Superior Court appeal to this Court, and consolidated that appeal and the application to lift the stay. We further directed that the case be listed for oral argument with briefing limited to the question of the applicability of Commonwealth v. Bolden, supra.

II.

The threshold issue in Commonwealth v. Bolden, supra, was whether an immediate appeal should be permitted from an order denying a pretrial motion to dismiss an indictment on double jeopardy grounds. The question there considered was whether a double jeopardy contention established the exceptional circumstance which would require a departure from the basic rule limiting an appeal to the review of a final judgment. See, e.g., Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978); Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974); Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971) (plurality opinion); Commonwealth v. Sites, 430 Pa. 115, 242 A.2d 220 (1968); Commonwealth v. Swanson, 424 Pa. 192, 225 A.2d 231 (1967). After an analysis of the scope of protection afforded by the Double Jeopardy Clause, the Bolden plurality ² concluded that the denial of a motion to dismiss on double jeopardy grounds presented exceptional circumstances justifying an immediate appeal:

The basic purpose of the double jeopardy clause mandates that a defendant who has a meritorious claim have an effective procedural means of vindicating his constitutional right to be spared an unnecessary trial. Acquittal upon retrial or belated appellate recognition of a defendant's claim by reversal of a conviction can never adequately protect the defendant's rights. The defendant is deprived of his constitutional right the moment jeopardy attaches a second time. His loss is irreparable; to subject an individual to the expense, trauma and rigors incident to a criminal prosecution a second time offends the double jeopardy clause. The clause establishes the "right to be free from a second prosecution, not merely a second punishment for the same offense." Fain v. Duff, 488 F.2d 218, 224 (5th Cir.1973).

Without immediate appellate review, a defendant will be forced to undergo a new trial, precluding any review of his claim that he should not be tried at all. "Because of the nature of the constitutional right ... assert[ed], no post-conviction relief, either state or federal, is capable of vindicating [appellant's] interest."

United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034, 1037 (3d Cir.1975). As Judge Adams observed in Webb, "forcing [appellant] to trial would defeat the constitutional right he seeks to preserve." Id. at 1039. Exceptional circumstances exist under Pennsylvania law warranting appellate review prior to judgment of sentence.

Therefore, we hold that denial of a pretrial application to dismiss an indictment on the ground that the scheduled trial will violate the defendant's right not to be placed twice in jeopardy may be appealed before the new trial is held.

Id. at 631-33, 373 A.2d at 104-05 (footnotes omitted).

While Bolden was a nondecisional opinion, Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977), a majority of the members of this Court have agreed with the proposition that "pretrial orders denying double jeopardy claims are final orders for purposes of appeal." Id. at 156, 373 A.2d at 1095. See also Commonwealth v. Murry, 498 Pa. 504, 447 A.2d 612 (1982); Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981); Commonwealth v. McElligott, 495 Pa. 75, 432 A.2d 587 (1981); Commonwealth v. Santiago, 492 Pa. 297, 424 A.2d 870 (1981); Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980); Commonwealth v. Fields, 491 Pa. 609, 421 A.2d 1051 (1980); Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980); Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980). Although the Bolden plurality did not expressly focus upon the question, its reasoning clearly required a stay of retrial, in addition to the right to an immediate review, to satisfy the defendant's double jeopardy rights. Moreover, Rule 1701 of the Pennsylvania Rules of Appellate Procedure further buttressed the requirement of a stay of retrial pending appeal. Rule 1701 provides in pertinent part:

(a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.

Pa.R.A.P. 1701(a).

Thus the Bolden principle, in conjunction with the automatic stay provision of Rule 1701, resulted in delaying retrial indefinitely while a double jeopardy claim interposed in a criminal prosecution was reviewed on direct appeal.

A few months after the Bolden decision, the United States Supreme Court, in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), recognized a similar right of appeal under the relevant federal jurisdictional statute, 28 U.S.C. § 1291. ³ The Abney Court found that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds satisfied the criteria of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which established the "collateral order" exception to the final judgment rule. Such an order was therefore a "final decision" for purposes of 28 U.S.C. § 1291, and the Court of Appeals could properly exercise jurisdiction over an appeal therefrom. Thus, as in Bolden, an exception to the final judgment rule was carved out for the federal judicial system. The U.S. Supreme Court recognized that such appeals could be employed merely to delay retrial but suggested that such problems could be handled administratively:

Admittedly, our holding may encourage some defendants to engage in dilatory appeals as the Solicitor General fears. However, we believe that such problems of delay can be obviated by rules or policies giving such appeals expedited treatment. It is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy.

Abney v. United States, supra, 431 U.S. at 662 n. 8, 97 S.Ct. at 2042 n. 8.

In response to the Abney Court's suggestion, the Court of Appeals for the Fifth Circuit adopted a rule designed to prevent the use of frivolous double jeopardy appeals as a dilatory tactic. United States v. Dunbar, 611 F.2d 985 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). Faced with the question of whether the filing of an Abney appeal divests the trial court of jurisdiction, the court saw the need to weigh the consequences to the defendant of failure to review his double jeopardy claim before trial against the effect of divestiture of jurisdiction, which "leaves the court powerless to prevent intentional dilatory tactics, forecloses without remedy the nonappealing party's right to continuing trial court jurisdiction, and inhibits the smooth and efficient functioning of the judicial process." Id. at 988, quoting United States v. Hitchmon, 602 F.2d 689, 694 (5th Cir.1979) (en banc). The rule formulated by the Fifth Circuit attempts to accommodate these competing and significant interests:

Situations of...