Commonwealth v. Collins

Citation258 A.3d 520 (Table)
Decision Date11 June 2021
Docket NumberNo. 1157 WDA 2020,1157 WDA 2020
Parties COMMONWEALTH of Pennsylvania v. Aaron L. COLLINS, Appellant
CourtSuperior Court of Pennsylvania

MEMORANDUM BY SHOGAN, J.:

Appellant, Aaron L. Collins, appeals from the October 5, 2020 order denying his motion for dismissal pursuant to the double jeopardy clause of the Fifth Amendment. After review, we affirm.

The trial court set forth the following factual and procedural recitation:

At trial, the alleged victim, ["the Victim"], testified to two separate occurrences of alleged assault with "one involving cigarettes and/or a game box and a second involving flowers."[1] Jury Charge, N.T., 1/8/20, at 7. These two separate occurrences formed the basis for the Commonwealth charging [Appellant] with two counts each of [Involuntary Deviate Sexual Intercourse ("IDSI")] Forcible Compulsion, Indecent Assault Forcible Compulsion, and Sexual Assault.[2]
The jury rendered verdicts of acquittal to both counts of IDSI Forcible Compulsion. As to Indecent Assault Forcible Compulsion and Sexual Assault, the jury verdicts were split. The jury acquitted [Appellant] with regards to the first incident [involving cigarettes and/or a game box] at Counts 3 and 5. The jury was unable to render a verdict as to the second incident [involving flowers] at Counts 4 and 6.

Order, 10/5/20, at 1-2. The jury handed down the verdict on January 8, 2020. The trial court declared a hung jury as to counts four and six, Indecent Assault Forcible Compulsion and Sexual Assault, respectively, and dismissed the other charges. Orders, 1/9/20. Appellant filed a Motion for Dismissal Pursuant to the Double Jeopardy Clause of the Fifth Amendment on February 25, 2020. The trial court denied the motion on October 5, 2020. Appellant filed a Notice of Interlocutory Appeal Pursuant to Pa.R.A.P. 313 on October 26, 2020. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Order, 10/27/20. Appellant timely filed his Rule 1925(b) concise statement on November 6, 2020.

On November 9, 2020, this Court ordered Appellant to show cause as to why the appeal satisfied the three-prong test set forth in Pa.R.A.P. 313(b) or why the appeal should not be quashed for failure to raise any other exception to the final order rule. Order, 11/9/2020 (per curiam ). Appellant responded on November 18, 2020. This Court discharged the rule and allowed the appeal to proceed, with the caveat that the parties should be prepared to address the issue should the panel have any concerns. Order, 11/20/20 (per curiam).

Appellant presents the following questions for our review:

1. Whether Appellant's right to an interlocutory appeal from the trial court's order denying Appellant's motion for dismissal pursuant to the Double Jeopardy Clause of the Fifth Amendment is specifically authorized by Pennsylvania Rule[ ] of Appellate Procedure (Pa.R.A.P.) 313 [?]
2. Whether the court erred when the court failed to dismiss [Appellant's] charges pursuant to the double jeopardy clause of the fifth amendment; because the not guilty verdict in the previous trial in regards to counts one and two IDSI [F]orcible [C]ompulsion; count three indecent assault forcible compulsion; and count five sexual assault precludes his retrial on count four indecent assault forcible compulsion; and count six sexual assault?

Appellant's Brief at 3 (full capitalization omitted).

In his first issue, Appellant argues that his interlocutory appeal is specifically authorized by Pa.R.A.P. 313. Appellant's Brief at 7. That Rule and accompanying note state as follows:

(a) General rule. --An appeal may be taken as of right from a collateral order of a trial court or other government unit.
(b) Definition. --A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.
Note: If an order meets the definition of a collateral order, it is appealed by filing a notice of appeal or petition for review.
Pa.R.A.P. 313 is a codification of existing case law with respect to collateral orders. See Pugar v. Greco , 394 A.2d 542, 545 (Pa. 1978) (quoting Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541 (1949) ).
Pennsylvania appellate courts have found a number of classes of orders to fit the collateral order definition. Collateral order cases are collected and discussed in Darlington, McKeon, Schuckers and Brown, Pennsylvania Appellate Practice 2015-2016 Edition, §§ 313:1-313:201 Examples include an order denying a petition to permit the payment of death taxes, Hankin v. Hankin , 487 A.2d 1363 (Pa. Super. 1985), and an order denying a petition for removal of an executor, Re: Estate of Georgiana , 458 A.2d 989 (Pa. Super. 1983), aff'd , 475 A.2d 744 (Pa. 1984), and an order denying a pre-trial motion to dismiss on double jeopardy grounds if the trial court does not also make a finding that the motion to dismiss is frivolous. See Commonwealth v. Brady , 508 A.2d 286, 289-91 (Pa. 1986) (allowing an immediate appeal from denial of double jeopardy claim under collateral order doctrine where trial court does not make a finding of frivolousness);Commonwealth v. Orie , 22 A.3d 1021 (Pa. 2011). An order denying a pre-trial motion to dismiss on double jeopardy grounds that also finds that the motion to dismiss is frivolous is not appealable as of right as a collateral order, but may be appealable by permission under Pa.R.A.P. 1311(a)(3).

Pa.R.A.P. 313 (emphasis added). Appellant argues that pursuant to the note accompanying Rule 313 and our Supreme Court's decision in Commonwealth v. Brady , 508 A.2d 286 (Pa. 1986), his appeal is proper. We agree.

"Pennsylvania law has traditionally provided a criminal defendant the right to an immediate appeal from an order denying a pretrial motion to dismiss on double jeopardy grounds." Commonwealth v. Gross , 232 A.3d 819, 830 (Pa. Super. 2020) (citing Commonwealth v. Orie , 22 A.3d 1021, 1024 (Pa. 2011) ). Indeed, we have repeatedly held that "[p]re-trial orders denying double jeopardy claims are immediately appealable in the absence of a written finding of frivolousness by the hearing court." Commonwealth v. Feaser , 723 A.2d 197, 199 n.2 (Pa. Super. 1999) (quotation omitted). In the instant case, the trial court did not make a finding of frivolousness in its order; thus, we may properly exercise jurisdiction over the appeal. Id . ("Because there has been no discrete finding of frivolousness by the trial court, we have jurisdiction to entertain this appeal.")

In his second question, Appellant argues that the trial court erred when it denied his motion to dismiss on double jeopardy grounds. Appellant's Brief at 11. Our standard of review is as follows:

An appeal grounded in double jeopardy raises a question of constitutional law. This [C]ourt's scope of review in making a determination on a question of law is, as always, plenary. As with all questions of law, the appellate standard of review is de novo [.] To the extent that the factual findings of the trial court impact its double jeopardy ruling, we apply a more deferential standard of review to those findings:
Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record.

Commonwealth v. Miller , 193 A.3d 1187, 1191 (Pa. Super. 2018).

Appellant advances two arguments in support of his appeal. First, he argues that it is unclear which counts of Indecent Assault Forcible Compulsion and Sexual Assault relate to which incident. Appellant's Brief at 15. Therefore, Appellant posits, it is unclear whether the jury was unable to reach a verdict on the counts related to the first or second incident. Id . Appellant then asserts that in order for the Commonwealth to prosecute him for counts four and six, the Commonwealth would have to retry the entire case, which is barred by double jeopardy. Id . Second, Appellant argues that his acquittal on both counts of IDSI Forcible Compulsion collaterally estops the Commonwealth from proceeding with the prosecution of Appellant for counts four, Indecent Assault Forcible Compulsion, and six, Sexual Assault. Id . at 15-16.

Preliminarily, we note that "[a]ny issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived." Commonwealth v. Castillo , 888 A.2d 775, 780 (Pa. 2005) (citing Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) ). Appellant's concise statement included the following single issue:

1. Whether the [c]ourt erred when the [c]ourt failed to dismiss [Appellant's] charges pursuant to the Double Jeopardy Clause of Fifth Amendment; because the not guilty verdict in the previous trial in regards to counts one and two IDSI Forcible Compulsion; count three Indecent Assault Forcible Compulsion; and count five Sexual Assault precludes his retrial on count four Indecent Assault Forcible Compulsion; and count six Sexual Assault?

Concise Statement of Issues on Appeal, 11/6/20. Appellant did not raise the precise argument relating to which counts were associated with which incident of abuse in his Rule 1925(b) statement, and therefore, the trial court did not address the issue in its Statement in Lieu of Opinion Pursuant to Pa.R.A.P. 1925. Rather, therein, the trial court relied on its October 2020 order, as it reviewed Appellant's Rule 1925(b) Statement and found that the order "previously addressed all issues." Statement in Lieu of Opinion Pursuant to Pa.R.A.P. 1925, 11/9/20.

It is well established that:

[w]hen a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an
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