Commonwealth of Pa. v. Orie

• Decision Date: 23 June 2011
• Citation: 22 A.3d 1021
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, Respondentv.Jane C. ORIE, Petitioner.

22 A.3d 1021

COMMONWEALTH of Pennsylvania, Respondent

v.Jane C. ORIE, Petitioner.

Supreme Court of Pennsylvania.

June 23, 2011.

William Costopoulos, Costopoulos, Foster & Fields, Lemoyne, PA, for Jane C. Orie.

Lawrence Neff Claus, Michael Wayne Streily, Allegheny County District Attorney's Office, for Commonwealth.CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

PER CURIAM.

This matter arose after the trial court declared a mistrial during Petitioner Jane C. Orie's trial on criminal charges related to the alleged use of government employees for non-government related work. Following the scheduling of a retrial, Petitioner filed a Motion to Dismiss the charges on grounds of double jeopardy. The trial court dismissed the double jeopardy challenge as frivolous and the Superior Court denied review. Petitioner then filed the instant Petition for Review.

The primary question before this Court relates to the availability and scope of pre-trial appellate review of a trial court's determination that a petitioner's double jeopardy challenge is frivolous. As explained below, we will treat Petitioner's “Emergency Petition for Review in the Nature of a Writ of Prohibition/Application for Extraordinary Relief and Stay of Proceedings” as a Petition for Allowance of Appeal (“PAA”). See Pa.R.A.P. 1114 Note (effective March 7, 2011). The PAA is granted, in part, to consider the following two questions as framed by Petitioner:

1) Whether this Court should review the trial court's determination that the Petitioner's double jeopardy motion is “frivolous” in light of the unprecedented grant of a mistrial during jury deliberations based on allegedly forged documents; and

2) Whether a retrial should be barred on double jeopardy grounds because the trial court hastily granted a mistrial without considering less drastic alternatives, the authenticity of the documents was before the jury and for the jury and not the trial court, the prosecution had ample opportunity to challenge them, they were not material and a mistrial was granted to preclude the jury from acquitting the Petitioner.

The Petition is otherwise denied. We vacate the Superior Court's order except insofar as the court denied the challenge to the trial court's recusal decision. The trial court having continued the retrial until October 3, 2011, Petitioner's request for a stay before this Court is dismissed as moot. ¹

Petitioner is a Pennsylvania Senator, representing the 40th Senatorial District. Following a grand jury investigation and presentment recommending criminal charges, the Allegheny County District Attorney's Office charged her with three counts of theft of services, three counts of conflict of interest, one count of criminal conspiracy, and three counts of tampering with or fabricating physical evidence. A jury trial commenced in Allegheny County presided over by the Honorable Jeffrey A. Manning on February 8, 2011. The trial lasted over three weeks and the jury began its deliberations in the late afternoon hours on March 2, 2011.

On March 3, 2011, as the jury was starting its first full day of deliberations, the Commonwealth informed the trial court that it believed there had been a fraud upon the court. The trial court halted jury deliberations. Following the arrival of defense counsel, the Commonwealth alleged that two defense exhibits had been forged. Ultimately, after permitting both parties to argue the appropriate remedy for the alleged forgery and allowing the Commonwealth to present expert testimony in support of the allegation that the documents were forged, the trial court declared a mistrial.

The trial court scheduled a new trial date. Petitioner thereafter filed a motion to bar retrial on grounds of double jeopardy and to dismiss the charges with prejudice, a motion to recuse the trial judge, and a motion for the appointment of the Pennsylvania Attorney General's Office to assume the investigation of the altered documents.

On April 4, 2011, the trial court filed an order with accompanying opinion, denying all of the motions. The trial court denied the double jeopardy motion, finding that the claim was “frivolous as a matter of law, without a shred of support in the record and clearly interposed solely to delay retrial in this matter.” See Trial Court opinion, 4/4/11, at 10. The trial court noted that Petitioner had presented fraudulent evidence; the fraudulent evidence was material to the defense case; and the issue arising from the discovery of the fraud was a fact question for the trial court to decide. The trial court also stated that it had considered other options and Petitioner had taken the position that the trial court should either do nothing or declare a mistrial. Separately, the trial court addressed Petitioner's recusal request and concluded that it could continue fairly and impartially in the case.

Petitioner appealed the trial court's order to the Superior Court as if it was a final order under 42 Pa.C.S. § 742 and also asked permission to appeal it as an interlocutory order pursuant to 42 Pa.C.S. § 702(b) and Pa.R.A.P. 312, 1311, 1501 et seq. Petitioner raised both the double jeopardy and the recusal claims. Petitioner did not request a stay of the trial court proceedings from either the trial court or the Superior Court. By per curiam order dated April 13, 2011, the Superior Court treated the appeal strictly as a petition for review, rather than as a § 742 appeal as of right, and denied relief by the following order:

And now, upon consideration of the petition for review filed by petitioner, the interlocutory appeal filed based on double jeopardy grounds is DENIED pursuant to Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986) which provides that an interlocutory appeal is unwarranted where the double jeopardy claims are deemed frivolous and review may be obtained on direct appeal. Further, the petition for review from the denial of recusal is DENIED.

Superior Court order at 33 WDM 2011, 4/13/2011. Petitioner then filed the instant Petition for Review and related motions in this Court.

This Court will treat the instant Petition for Review as a PAA because the order of the Superior Court denying Petitioner's Petition for Review effectively was a final order. The General Assembly has vested jurisdiction in this Court over “final orders of the Superior Court” and has provided that such orders may be reviewed by this Court “upon allowance of appeal.” 42 Pa.C.S. § 724. A “final order” is broadly defined by Pa.R.A.P. 1112 and includes “any order that concludes an appeal.” The double jeopardy claim forwarded in the Petition for Review filed in Superior Court was not a traditional “appeal;” rather, it was primarily an attempt to secure pre-trial review of the trial court's finding that the double jeopardy challenge was “frivolous.” As we will explain below, the Brady case relied upon by the Superior Court specifically provided that a narrow and unique form of pre-trial review of such determinations would be available. However, Brady did not specify precisely how this review would occur, or in which court, and subsequent case law developments have confused matters further. For purposes of the case sub judice, what matters is that the Superior Court's order of denial, which neither quashed the “appeal” nor transferred it to this Court, certainly “concluded” the pre-trial Brady appeal, such as it was; and thus, it was a final order, subject to this Court's discretionary jurisdiction under Section 724.²

Furthermore, Petitioner's failure to cite the appropriate jurisdictional provision is not fatal to treating the instant filing as a PAA. Pa.R.A.P. 1102 governs improvident appeals and provides that if an appeal is improvidently taken to this Court under Rule 1101 (relating to appeals from the Commonwealth Court) and the proper filing was a PAA, “this alone shall not be a ground for dismissal, but the papers whereon the appeal was taken shall be regarded” and acted on as a PAA. See Pa.R.A.P. 1102. While the context of Rule 1102 and its wording indicate that it is unique to appeals from the Commonwealth Court, this Court has invoked this Section as a basis for treating a petition for review as a PAA in a matter involving an appeal from the Superior Court. See Commonwealth v. Martorano, 535 Pa. 178, 634 A.2d 1063, 1067 (1993) (“this court has, in a number of cases, treated an improvident appeal as a petition for allowance of appeal and granted review” and citing Rule 1102).

The threshold question raised by the instant Petition implicates the appropriate procedure for an appellate court to follow where a trial court has dismissed a defendant's pre-trial double jeopardy challenge as frivolous. We take this opportunity to make clear to the bench and bar the appropriate framework for appellate review of such claims, subject to further refinement following a referral to the Criminal Procedural and Appellate Procedural Rules Committees. We do so because this Court has not addressed this important issue since Commonwealth v. Brady, our review of the intervening case law reveals that confusion has arisen in this area, and the confusion makes it difficult to ascertain the review that was engaged in by the Superior Court below.

Generally, criminal defendants have a right to appeal a trial court's pre-trial double jeopardy determination under Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977) (plurality opinion). While Bolden was a plurality decision, a per curiam decision by the Court shortly thereafter made clear that a Court majority agreed with the important narrow proposition that “pretrial orders denying double jeopardy claims are final orders for purposes of appeal.” Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094, 1095 (1977) ( per curiam ) (emphasis added).

Eight years later, in Brady, this Court considered the question of whether a Bolden of-right appeal should be permitted to go...