Com. v. Dortch, F. ( 2022 )

J-S01006-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK JERRID DORTCH :
:
Appellant : No. 594 MDA 2021
Appeal from the Order Entered April 26, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0003902-2020
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 1, 2022
Frank Jerrid Dortch appeals pro se from the April 26, 2021 order denying
his petition for a writ of habeas corpus. Appellant also appeals from the May 5,
2021 order denying his petition for a bill of particulars.1 Since the appeal is
interlocutory, we quash.
We provide the following background. Appellant was charged by
criminal information with one count of possession of cocaine, one count of
possession of a small amount of marijuana, and two summary vehicle offenses
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* Retired Senior Judge assigned to the Superior Court.
1 “Generally, taking one appeal from separate judgments is not acceptable
practice and is discouraged.” Dong Yuan Chen v. Saidi, 100 A.3d 587, 589
n.1 (Pa.Super. 2014) (cleaned up) (quoting Gen. Elec. Credit Corp. v. Aetna
Cas. & Sur. Co., 263 A.2d 448, 452 (Pa. 1970)); see also Pa.R.A.P. 341,
Note; Pa.R.A.P. 512, Note. While this Court issued a rule to show cause
regarding this error, we do not reach this issue in light of our disposition.
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following a traffic stop that was conducted on April 22, 2020. Appellant failed
to attend his preliminary hearing, and all charges were held for court.
Thereafter, Appellant pro se filed his first request for a bill of particulars.
The Commonwealth responded, noting that Appellant’s motion amounted to a
request for discovery, which it had already prepared for Appellant. The trial
court held a hearing and ultimately denied Appellant’s request. Appellant
subsequently filed a petition for “writ of limine,” which the trial court treated
as a petition for a writ of habeas corpus.2 The trial court held a hearing, during
which the Commonwealth called Officer Shawn Wilson to testify to the
underlying evidence supporting the Commonwealth’s case against Appellant
and Appellant cross-examined him. At the conclusion of the hearing, the trial
court found the Commonwealth had established prima facie evidence as to all
four charges and denied Appellant’s petition. In response, Appellant orally
moved to dismiss pursuant to Rule 600(G), which the trial court denied.
Appellant then filed the underlying bill of particulars, which the court also
denied.
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2 Appellant did not file this petition of record, but the court, in ordering a
hearing on the pro se submission, ordered that it be filed of record. In the
petition, Appellant attempted to explain why he was not present at his
preliminary hearing and requested that the court “bring [the case] back to
[the] preliminary hearing” phase. Order, 2/3/21 (attached petition at
unnumbered 1).
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This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.3
This Court issued a rule to show cause “why one appeal was taken from
two separate orders and why the instant appeal should not be quashed as
taken from unappealable orders.” Per Curiam Order, 6/29/21. Appellant
responded that the appeal should not be quashed because he is only one
person appealing from one trial court docket and, relying on Commonwealth
v. McClelland, 233 A.3d 717 (Pa. 2020), he “is appealing a preliminary
hearing by right.” Answer to Directive of Directory Pa. Rule of Crim. P. 575,
7/18/21, at unnumbered 1. This Court discharged the rule to show cause and
referred the matter to the panel for consideration.
Appellant raises the following issues on appeal:
I. Is an interlocutory order bounding over offenses from a
preliminary hearing appealable before trial on the grounds
of whether there was prima facie established in which
probable cause is needed?
II. Is an interlocutory order denying petition for a bill of
particulars appealable before trial under Rule 311, if a bill of
particulars does not make a difference of whether the trial
will continue or not?
III. Is it lawfull [sic] to deny a defense’s timely petition for a bill
of particulars when its petitioned for only in attempt to avoid
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3 Upon remand from this Court, the trial court conducted a hearing pursuant
to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). At the conclusion
of the hearing, the court found Appellant was knowingly, intelligently, and
voluntarily waiving his right to counsel, and the court allowed Appellant to
proceed pro se with standby counsel.
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surprise by asking for one so the offenses are solidified and
their grading that defendant is scheduled to go to trial for?
IV. Is the bill of particulars a defensive remedy beyond the
scope solidifying offenses and their grading before trial?
V. Can probable cause or prima facie be established for illegal
poss. of marijuana without establishing if suspect has or
does not have a medical marijuana card?
VI. May probable cause be established in front of a magistrate
judge without an affidavit of probable cause?
VII. May prima facie be established without probable cause?
VIII. Is it beyond the scope of our state’s judiciary to determine
what a president of the United States make’s [sic] an
emergency executive order of?
Appellant’s brief at 8-9 (cleaned up).
Before reaching the merits of Appellant’s substantive claims, we must
first determine whether we have jurisdiction over this appeal. See
Commonwealth v. Brister, 16 A.3d 530, 533 (Pa.Super. 2011) (“The
appealability of an order directly implicates the jurisdiction of the court asked
to review the order.” (cleaned up)). In its Rule 1925(a) opinion, the trial court
urges this Court to quash the appeal as interlocutory. The Commonwealth
agrees, arguing that Appellant’s appeal from the order denying his bill of
particulars is premature and that he has not satisfied the requirements for an
interlocutory appeal. See Commonwealth’s brief at 9-12.4 Appellant, on the
other hand, contends that this Court has jurisdiction pursuant to 42 Pa.C.S.
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4 In its brief, the Commonwealth focuses its argument on the order denying
Appellant’s request for a bill of particulars, thereby failing to address the order
denying Appellant’s petition for a writ of habeas corpus.
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§ 742 (appeals from courts of common pleas), Pa.R.A.P. 311 (interlocutory
appeals as of right), the doctrine of exceptional circumstances,5 and Pa.R.A.P.
313 (collateral orders). See Appellant’s brief at 3, 8; Appellant’s reply brief
at 4, 10, 14.
“In this Commonwealth, an appeal may only be taken from: 1) a
final order or one certified by the trial court as final; 2) an interlocutory order
as of right; 3) an interlocutory order by permission; or 4) a collateral order.”
Brister, supra at 533 (cleaned up). Here, Appellant appeals from an order
denying a petition for a writ of habeas corpus6 and an order denying a bill of
particulars. We will consider these orders seriatim.
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5 Appellant relies on a Supreme Court case pre-dating the promulgation of
the current rules of appellate procedure for the argument that an appeal from
an interlocutory order is permissible where exceptional circumstances exist.
See Appellant’s reply brief at 4 (citing Commonwealth v. Kilgallen, 108
A.2d 780 (Pa. 1954); see also Commonwealth v. Swanson, 225 A.2d 231,
232 (Pa. 1967) (citations omitted) (explaining that “exceptional circumstances
arise (1) where an appeal is necessary to prevent a great injustice to the
defendant, or (2) where an issue of basic human rights is involved, or (3)
where an issue of great public importance is involved”). Since the inception
of the rules of appellate procedure, “[a]ppellate review of any court order is a
jurisdictional question defined by rule or statute.” Commonwealth v.
Parker, 173 A.3d 294, 296 (Pa.Super. 2017) (cleaned up). Nonetheless, this
Court continues to consider the doctrine of exceptional circumstances in
connection with the rules of appellate procedure. See Commonwealth v.
McClelland, 165 A.3d 19, 23 (Pa.Super. 2017), rev'd on other
grounds, 233 A.3d 717 (Pa. 2020).
6 Although Appellant’s petition was not labeled as a petition for a writ of
habeas corpus, Appellant does not challenge the trial court’s treatment of it
as such.
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This Court has addressed whether an order denying habeas corpus relief
is interlocutory for appealability purposes:
As a general rule, an order denying a pre-trial petition for habeas
corpus is interlocutory. In the absence of exceptional
circumstances, statutory authorization, or jurisdictional challenge,
an order denying an application for discharge prior to trial,
particularly where it is based upon the alleged insufficiency of
evidence to establish a prima facie case before the magistrate, is
unappealable.
Commonwealth v. Jackson, 849 A.2d 1254, 1256 (Pa.Super. 2004)
(cleaned up).
In McClelland, supra at 732 n.8, our Supreme Court noted that “[a]n
order denying or granting a writ of habeas corpus is interlocutory[,]” but
declined to consider the appropriateness of this Court’s determination that
interlocutory appellate review was appropriate in McClelland as it was beyond
the scope of the issue upon which allocatur was granted. Relevantly, this
Court concluded that exceptional circumstances warranted review of
McClelland’s appeal due to an unresolved and important constitutional
question, and therefore we had jurisdiction to consider the merits of his claim.
Commonwealth v. McClelland, 165 A.3d 19, 23 (Pa.Super. 2017), rev'd
on other grounds, McClelland, supra. Specifically, McClelland queried
“[w]hether hearsay testimony from an affiant violates due process when that
hearsay alone establishes a prima facie case at a preliminary hearing.” Id.
(citation and footnote omitted).
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Instantly, Appellant raises a similar argument, contending that hearsay
alone was used to establish a prima facie case at the April 26, 2021 hearing.
Preliminarily, we observe that following McClelland, supra, it is no longer an
open question whether hearsay alone may establish a prima facie case at a
preliminary hearing. Accordingly, an argument based upon that question no
longer raises an exceptional circumstance, as that question has been
answered. Moreover, the holding from McClelland was not violated herein
as the establishment of a prima facie case against Appellant did not hinge
solely on hearsay evidence. Specifically, Officer Wilson testified that while on
a traffic detail in the city of York, he observed a van with non-operational
headlights at approximately 1:30 a.m. N.T., 4/26/21, at 7. Officer Wilson
attempted to conduct a traffic stop, but the driver of the vehicle continued to
drive for several blocks, passing easily accessible stopping points and
ultimately attempting unsuccessfully to parallel park. Based on the suspicious
behavior, Officer Wilson ordered the driver from the vehicle. Officer Wilson
immediately recognized Appellant, the driver and sole occupant of the vehicle,
from prior occasions of driving while his license was suspended. Id. at 7-10.
Officer Wilson confirmed that Appellant’s license was still suspended. Id. at
11. When Officer Wilson had initially approached the vehicle, he smelled fresh
marijuana, and upon a search of Appellant incident to arrest, Officer Wilson
recovered burnt marijuana roaches from his pocket. Id. at 12. Officer Wilson
directly observed the assisting officer recover a small amount of fresh
marijuana and a suspected cocaine packet from the driver’s side floorboard.
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Id. at 12-13, 23. Stated simply, all the facts testified to were directly
conducted or observed by Officer Wilson, the testifying officer at the hearing
who was cross-examined by Appellant. Thus, Appellant’s challenge does not
rise to the level of an exceptional circumstance, and instead, merely amounts
to an argument that there was a lack of prima facie evidence. Accordingly,
we agree with the trial court that this order is interlocutory and unappealable.
See Jackson, supra.As to the order denying the bill of particulars, this order also is not final
as it did not dispose of all claims and all parties. Pa.R.A.P. 341(b)(1). Thus,
the order is necessarily interlocutory. Although Appellant contends this order
is appealable pursuant to Pa.R.A.P. 311 in his statement of questions, this
order is not an interlocutory order appealable as of right. See Pa.R.A.P. 311.
Rather, this interlocutory order is only appealable via permission, and
Appellant has not filed a petition for permission to appeal. Moreover, no
exceptional circumstances exist warranting review of his claims pertaining to
the denial of this order. Thus, we may not exercise our discretion to grant
permission for review. See Commonwealth v. Rosario, 648 A.2d 1172,
1174-75 (Pa. 1994) (affirming this Court’s quashal of an appeal from a pre-
trial interlocutory order where the defendant did not file a petition for
permission to appeal).
The only other possible basis for jurisdiction would be a determination
that the order denying the bill of particulars was a collateral order. A collateral
order is defined as “an order separable from and collateral to the main cause
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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.” Pa.R.A.P. 313(b). Since we
review rulings on motions for bills of particular following a final judgment of
sentence in criminal cases, the claim will not be irreparably lost by postponing
review, and it therefore does not qualify as a collateral order. See e.g.,
Commonwealth v. Libengood, 152 A.3d 1057 (Pa.Super. 2016).
For these reasons, the orders appealed from are interlocutory and
unappealable. Therefore, we do not have jurisdiction to hear this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/01/2022
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