Com. v. Ivy, G. ( 2018 )

J-S78033-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GLAVIN JUSTAN IVY, :
:
Appellant : No. 852 WDA 2017
Appeal from the Order May 9, 2017
in the Court of Common Pleas of Mercer County,
Criminal Division, at No(s): CP-43-CR-0001513-2016
BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 31, 2018
Glavin Justan Ivy (Appellant) appeals from the May 9, 2017 order
which denied his motion to dismiss based upon double jeopardy and/or
compulsory joinder. Upon review, we affirm.
On May 9, 2014, Appellant was charged by the Hermitage Police
Department at CP-43-CR-0000825-2014 (Case 825) with stalking and
harassment, related to an incident involving Appellant’s ex-girlfriend, C.D.1
Trial Court Opinion, 5/9/2017, at 1. Specifically, the affidavit of probable
cause alleged that Appellant had called C.D’s place of employment
approximately 50 times. Id.
1
The Commonwealth later withdrew the stalking charge.
*Retired Senior Judge assigned to the Superior Court.
J-S78033-17
That same day, the Southwest Mercer County Regional Police
Department charged Appellant at CP-43-CR-0000855-2014 (Case 855) with
two counts of simple assault and one count of terroristic threats. Id. at 2.
These charges stemmed from incidents involving Appellant and C.D. from
March to May of 2014. Id.
On October 14, 2014, Appellant appeared for a pre-trial conference.
That day, Appellant entered a guilty plea to a reduced charge of summary
harassment at Case 825. Id. at 3. After conducting and accepting
Appellant’s colloquy, Appellant was sentenced to 45 to 90 days’
incarceration, plus costs and fines. N.T., 10/14/2014, at 12.
Simultaneously, the trial court, upon the Commonwealth’s motion, nol
prossed the charges at Case 855. Id. Pertinent to this appeal, at the guilty
plea and sentencing, the following exchange between the Commonwealth,
defense counsel, Appellant, and the court occurred on the record:
Defense Counsel: [Appellant]. He will plead to summary
harassment at [Case 825]. The Commonwealth will be
recommending time served. He’s already done more than 90
days, summary harassment, so plea and sentence.
The Trial Court: At [Case 855]?
Defense Counsel: That’s the nol-pros one.
The Trial Court: Is that your understanding, [Commonwealth]?
The Commonwealth: Yes, Your Honor.
***
-2-
J-S78033-17
The Trial Court: AND NOW, this 14th day of October 2014,
[Appellant] having appeared before th[e trial court] with his
counsel, and have voluntarily, knowingly, and intelligently
entered a plea of guilty to the offense of harassment, under 18
Pa.C.S. § 2709(a)(3), a summary offense, said plea is accepted.
There are no other plea bargains in this case.
***
The Trial Court: Do you have any questions?
Appellant: The other case is settled, [Case 855]?
Defense Counsel: Yes, it’s nol-prossed.
The Trial Court: Well, no I haven’t even nol-prossed it. The
matter, at [Case 855], upon motion of the Commonwealth, this
case is hereby nol-prossed. By the [c]ourt. Line for signature.
Now it’s nol-prossed.
N.T., 10/14/2014 at 7, 11-12.
Subsequent to Appellant’s guilty plea and sentencing, on November 4,
2016, the Commonwealth filed a 49 count information at CP-43-CR-
0001513-2016 (Case 1513) based upon a criminal complaint filed by the
Mercer County Detective Unit. Trial Court Opinion, 5/9/2017, at 9. The
information alleged Appellant perpetrated various crimes against C.D.,
including rape, aggravated assault, indecent assault, and kidnapping, which
“occurred at various times between March 9, 2014 and May 9, 2014.” Id. at
9-10.
On December 5, 2016, Appellant filed an omnibus pre-trial motion for
relief, requesting, inter alia, that the charges filed at Case 1513 be
dismissed with prejudice on double jeopardy and compulsory joinder
-3-
J-S78033-17
grounds. Defendant’s Omnibus Pre-Trial Motion for Relief, 12/5/2016, at 7.
Specifically, Appellant argued that the charges at Case 855 were nol prossed
“with prejudice as a material term for the consummation of a guilty plea
bargain [with Case 825] for which the Commonwealth received a tangible
benefit and consideration and therefore constitutes a final judgment of
[c]ourt[,]” and thus jeopardy attaches. Id. Furthermore, according to
Appellant, the rule of compulsory joinder applies because the charges at
Case 1513 are “for the same offense as those finally determined and
adjudicated by final judgment court” at Cases 825 and 855. Id. at 8.
Following a hearing on the record, the trial court issued an order
denying Appellant’s motion. This appeal followed.2 On appeal, Appellant
challenges the trial court’s denial of his motion. Appellant’s Brief at 5.
Before addressing the merits of the issue raised by Appellant, we must
first determine if we have jurisdiction over this appeal. “Jurisdictional
questions are non-waivable and not only may be raised by [this Court] sua
sponte … but must be.” Commonwealth v. Boerner, 422 A.2d 583, 588
(Pa. Super. 1980) (citations omitted).
This Court has previously interpreted Pa.R.C.P. 587(B), which governs
double jeopardy motions, and the implications it has on our jurisdiction.
To establish whether a motion to dismiss on double jeopardy
grounds qualifies as a collateral order, trial courts must now,
2
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
-4-
J-S78033-17
inter alia, satisfy Rule 587(B)(3), (4), (5), and (6). Subsection
(B)(3) requires the trial court, following a hearing, to enter on
the record a statement of findings of fact and conclusions of law
and its disposition of the double jeopardy motion. Subsection
(B)(4) requires the trial court to render a specific finding on
frivolousness in the event the court denies the double jeopardy
motion. Subsection (B)(5) requires the trial court, if it finds
frivolous the double jeopardy motion, to inform on the record a
defendant of his or her right to petition for review under
Pa.R.A.P. 1573 within 30 days of the order denying the motion.
Subsection (B)(6) requires the court to advise a defendant of his
immediate right to a collateral appeal if the court does not find
the double jeopardy motion to be frivolous.
Commonwealth v. Taylor, 120 A.3d 1017, 1022–23 (Pa. Super. 2015)
(footnotes omitted).
The record reveals the following: (1) Appellant’s motion specified the
basis and reasons to support his claim that the Commonwealth should be
barred from prosecuting the charges at Case 1513 on double jeopardy
grounds; (2) a hearing on Appellant’s motion was conducted by the trial
court on the record; (3) following the hearing, the court made a specific
finding that the motion was not frivolous; and (4) within the trial court’s
subsequent order denying Appellant’s motion, the court reiterated its finding
that the motion was not frivolous and advised Appellant that the order
denying the motion was immediately appealable as a collateral order. Based
upon the foregoing, we conclude the trial court has satisfied the mandates
-5-
J-S78033-17
necessary to implicate our jurisdiction, and therefore, we find this case is
ripe for our review.3
We consider the merits of Appellant’s first claim mindful of the
following. “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….” Commonwealth v. Vargas, 947
A.2d 777, 780 (Pa. Super. 2008) (citations and quotations omitted).
The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution protects an individual against
successive punishments and successive prosecutions for the
same criminal offense. [A]t the heart of double jeopardy
jurisprudence is the requirement that an individual demonstrate
… he … has been subjected to the risk of a trial on the merits. In
Pennsylvania, jeopardy does not attach and the constitutional
prohibition against double jeopardy has no application until a
defendant stands before a tribunal where guilt or innocence will
be determined.
Id. at 780-81 (citations and quotations omitted).
A nolle prosequi is a voluntary withdrawal by a prosecuting
attorney of proceedings on a particular criminal bill or
information, which at anytime in the future can be lifted upon
appropriate motion in order to permit a revival of the original
criminal bill or information. Since a nolle prosequi acts neither
as an acquittal nor a conviction, double jeopardy does not attach
to the original criminal bill or information.
3 “A [m]otion to [d]ismiss on the basis of the compulsory joinder rule of [18
Pa.C.S] § 110 embodies the same constitutional protections underlying the
double jeopardy clause justifying interlocutory appeal of such claims.”
Commonwealth v. Anthony, 717 A.2d 1015, 1017 (Pa. 1998).
-6-
J-S78033-17
In order for [an] appellant’s position [that the
Commonwealth is barred from reinstituting charges that were
previously nol prossed] to have merit, [the] appellant must
prove that there was an actual representation by the
Commonwealth or that there was a representation made by the
Commonwealth which led [the] appellant to reasonably believe
that his guilty plea agreement included an agreement by the
Commonwealth to nol pros the charges in the first complaint as
a condition of the guilty plea.
Commonwealth v. Ahearn, 670 A.2d 133, 135–36 (Pa. 1996) (citations
omitted).
In its opinion authored in support of its decision to deny Appellant’s
motion, the trial court aptly summarized the positions of both parties as well
as the court’s ultimate findings and conclusions.
The defense argues that for purposes of the double
jeopardy clauses of the federal and state constitutions and the
compulsory joinder statute found at 18 Pa.C.S.[] §110(1)(ii)
jeopardy attaches when a defendant enters a guilty plea to a
criminal offense which is accepted by the court of record and
then sentenced by that court. [Appellant] further argues that
the [trial c]ourt’s acceptance on October 14, 2014 of a plea of
guilty to a criminal offense at [Case 825] and the concurrent nol
pros of the charges at [Case 855] by the same court in the same
judicial proceeding on the same date “provides that jeopardy
also attached to the criminal offenses charged at [Case 855].”
Defense argues that it is “clear and unequivocal” that the
court accepted the dismissal of the charges at [Case 855]
because of the court’s acceptance of the guilty plea at [Case
825] and that the Commonwealth “clearly” conditioned the
dismissal of the charges at [Case 855] upon [Appellant] first
entering a guilty plea to the offense at [Case 825].
The defense argument continues that the defense,
Commonwealth, and [the trial c]ourt all concurred that
prosecutions at both [Case 855] and at [Case 825] were to be
-7-
J-S78033-17
“fully, finally, completely, and absolutely terminated and closed.”
[Appellant] was to be discharged on both prosecutions with
jeopardy attaching at both terms and numbers.
The defense argues further that the criminal charges at
[Case 855] of simple assault and terroristic threats consisted of
a course of conduct and a criminal episode alleged to have
occurred [at Case 1513] against the victim C.D. and the charges
were based on [C.D.’s] handwritten, voluntary statement made
by C.D. to Southwest Mercer County Regional Police Department
on May 9, 2014, detailing the physical violence, threats, and
forcible confinement committed against her by the defendant.
Thus, [Appellant’s] argument asserts, that pursuant to 18
Pa.C.S.[] §110(1)(ii)[,] a subsequent prosecution for any offense
based on the same course of conduct or arising from the same
criminal episode as a prior prosecution are also barred even if
the subsequent prosecution is for different crimes if those
different crimes in the subsequent prosecution were known to
the appropriate prosecute[ing] officer at the time when jeopardy
attached.
The defense argument continues that any of the crimes
relating to the physical assaults, threats, and forcible
confinement of [C.D] arise from the same criminal episode that
led to the simple assault and terroristic threat charges at [Case
855] and, therefore, jeopardy attached to all of the non-sexual
offenses. With regard to the sexual offenses, the defense argues
that because the police and the district attorney’s office knew
that C.D. claimed that [Appellant] had physically assaulted her,
threatened her, and forcibly confined her that they should have
been alerted that an unlawful sexual assault was present and
because the authorities should have known of the sexual
offenses or that the sexual offenses were “knowable,”
prosecution on the sexual charges is barred as well.
The Commonwealth’s position is that none of the charges
[is] barred. The Commonwealth argues that the nol pros of the
charges at [Case 855] was not part of a quid pro quo for the
plea at [Case 825], to summary harassment.
-8-
J-S78033-17
The Commonwealth also argues that a nol pros is not a
final judgement as argued by the defense in that charges that
are nol prossed are neither an acquittal nor a conviction and,
therefore, jeopardy does not attach and the nol pros can be
lifted. The Commonwealth argues alternatively that the sex
offenses were not known to the Commonwealth and, therefore,
are not subject to double jeopardy or compulsory joinder
dismissal.
***
The [trial c]ourt has thoroughly reviewed the record. It is
clear to the [trial c]ourt that both [Appellant] and the
Commonwealth wanted to resolve both cases on October 14,
2014 when the parties appeared before Judge Wallace at the
criminal pre-trial conference and, in fact, did so resolve them.
This does not mean, however, that the cases were part of one
plea bargain nor that the nol pros at [Case 855] was an
inducement for the plea at [Case 825]. It is also clear that there
was no written plea agreement nor was there ever a motion to
consolidate the two cases.
The plea colloquy conducted by Judge Wallace does not
indicate that the cases were packaged together or co-dependent.
The colloquy supports the Commonwealth’s contention that there
were two separate matters. After defense counsel informed the
[trial c]ourt of the proposed plea to the summary harassment at
[Case 825] the [c]ourt asked about the case at [Case 855].
Defense counsel does not inform the [c]ourt that the nol pros at
[Case 855] is part of the deal at [Case 825]. Defense counsel
simply informs the [c]ourt that the charges at [Case 855] are to
be nol prossed. After a brief colloquy[,] the [trial c]ourt accepted
the plea to summary harassment and stated[:] “There are no
other plea bargains in this case.” The [trial c]ourt then
sentenced [Appellant] on the summary harassment offense and
noted that [Appellant] had served his maximum sentence and
was therefore released. Thereafter, [Appellant] himself asked if
[Case 855] was settled. In response, the [c]ourt entered the
order nol prossing the charges at [Case 855] and again there is
no mention that the nol pros was part of the plea deal at 825
Criminal 2014.
-9-
J-S78033-17
***
Here, although two cases were resolved the same day at
the same time by the same [c]ourt there is no clear indication
that they were part of the same plea agreement. The assistant
district attorney has denied they were part of the same
agreement and testified he considered them as two cases and
that in [Case 855], which was nol prossed, the witness was
reluctant to testify whereas to the charge at [Case 825] the
Commonwealth had a witness other than the victim. The [c]ourt
finds the assistant district attorney[’s] testimony to be credible.
There was no written plea agreement nor any specific mention in
the colloquy of the necessary quid pro quo between the cases.
The [c]ourt notes that there was a quid pro quo in that the
harassment charge at [Case 825] was a misdemeanor of the
third degree but was reduced to a summary violation. Most
telling, after accepting the plea at [Case 825], the trial court
clearly stated that there were no other plea bargains in that
case.
Th[e trial c]ourt has faced the situation many times where
the parties have reached an agreement in two separate cases
that are not codependent or part of the same plea agreement
and the [c]ourt enters separate orders at both terms and
numbers. On the other hand, this [c]ourt has also been faced
with the situation many times where the Commonwealth and the
defendant have reached a plea agreement on more than one
case where they are part of the plea agreement and the [c]ourt
clearly notes that in the plea order. Relying on Judge Wallace’s
clear statement of no other plea bargains at [Case 825], th[e
trial court] concludes there was no plea agreement at [Case
825] which included the charges at [Case 855]. This was a
situation where two separate cases were disposed of separately
albeit at the same time.
Trial Court Opinion, 5/9/2017, at 12-20.
On appeal, Appellant summarized his argument as follows.
[A]ppellant’s constitutional right against double jeopardy
and compulsory joinder was violated when the [C]ommonwealth
reinstated the charges at [Case 855] because [Case 855] was
- 10 -
J-S78033-17
part of the same plea agreement as [Case 825]. Both cases
were dealt with at the same time and place. [Case 855] was nol
prossed only after [Appellant] entered a plea at [Case 825].
Thus, the nol pros of [Case 855] was part of the plea agreement
between the [C]ommonwealth and the defense.
Since [Case 855] was part of the plea, the charges in the
current case should be dismissed for violating [Appellant’s]
constitutional right against double jeopardy and compulsory
joinder. The current charges occur in the same time period
against the same victim as the charges at [Case 855]. This is the
same criminal episode happening in the identical time period.
Appellant’s Brief at 7. As evidence of interrelation between Case 825 and
Case 855, Appellant cites the trial court’s “finding that defense counsel was
sincere in his belief that the agreement was for both cases to be resolved.”
Id. at 9. Appellant contends the court’s finding of sincerity, along with the
fact that “both cases were [dealt] with at the same time and same place[,]”
and that Case 855 “was nol prossed only after [Appellant] entered a plea” at
Case 825 supports his argument that the Commonwealth is barred from
prosecuting Case 1513. Id. at 13.
In determining Appellant was not entitled to relief, the trial court cited
Ahearn, in support of its decision. Id. at 19. We agree with the trial court
that “[t]he present case is very similar to [Ahearn].” Id. In fact, upon
review, we find Ahearn materially indistinguishable.
In Ahearn, the Commonwealth filed and the trial court granted the
Commonwealth’s motion to nol pros charges against Ahearn because “the
Commonwealth’s case against [Ahearn as to this first complaint] lack[ed]
- 11 -
J-S78033-17
evidence sufficient to sustain the Commonwealth’s burden of proof.” 670
A.2d at 134 (internal quotation marks omitted). That same day, Ahearn
“appeared before the same trial court to enter a guilty plea to the loitering
and prowling at nighttime charges set forth in the second complaint.” Id.
After Ahearn’s plea and sentencing, “the Commonwealth reinstated the
charges in the first complaint that it had earlier decided to nol pros.” Id.
Based upon the foregoing, Ahearn “filed a motion to dismiss the reinstated
charges alleging that they should be dismissed because his guilty plea to the
charges in the second complaint included an agreement that the
Commonwealth would nol pros the charges in the first complaint.” Id.
A hearing was held on Ahearn’s motion, wherein the
only evidence [Ahearn] presented at this hearing to support his
claim that the plea agreement was intended to cover the charges
raised in the first complaint was this exchange during the plea
colloquy:
Mr. Fink ([Ahearn’s] counsel): Your Honor, there
was a collateral charge, and I don’t know whether
it's appropriate to encumber the record, there was
an understanding which was a corollary to this plea
as it relates to the charge filed at No. ---
The Court: Is that related to the case we nolle
prossed this morning?
Ms. Fletcher (assistant district attorney): Yes, we
did file requesting that No. 27 of 1991 be nolle
prossed.
Mr. Fink: That’s the case. Thank you your Honor.
- 12 -
J-S78033-17
The Court: That has been done.
The trial court, however, found that neither the motion to
nol pros the first complaint, the written guilty plea agreement
itself, nor the [oral] plea colloquy contained any representation
that the plea agreement to the charges raised in the second
complaint was done because of the alleged arrangement with the
Commonwealth that the charges in the first complaint would be
nolle prossed. Thus, the trial court denied [Ahearn’s] motion to
dismiss.
Id. at 134–35 (footnote omitted). Thereafter, the charges were reinstated
and following a jury trial, Ahearn was found guilty and was sentenced
accordingly. Id. at 135. Ahearn appealed to this Court, arguing that the
Commonwealth should have been barred from prosecuting the formerly nol
prossed charges. Id. This Court “denied [Ahearn’s] appeal finding that
there was nothing in the record to support [Ahearn’s] claim that the plea
agreement encompassed any agreement by the Commonwealth to nol pros
the charges in the first complaint.” Id.
Our Supreme Court granted allocatur and upon review, affirmed this
Court’s holding that Ahearn was not entitled to relief. In concluding as such,
our Supreme Court noted that the record
fail[ed] to provide the needed evidence. The Commonwealth’s
motion to nol pros the charges included in the first complaint
explicitly stated that the Commonwealth was undertaking this
action because it had insufficient evidence at that time to sustain
its burden of proof. Nowhere in the motion or on record does it
state that the nol pros was being sought in conjunction with a
plea agreement to the other charges. Also, per the trial court,
the written plea agreement which [Ahearn] admitted to reading,
signing and understanding, failed to state that the nol pros of
- 13 -
J-S78033-17
the charges in the first complaint was in any manner an
inducement or part or condition of the plea agreement.
Similarly, the guilty plea colloquy fails to establish an
interrelationship between the two cases. [Ahearn] points to the
above described [oral] plea colloquy where a vague reference
was made by [Ahearn’s] defense counsel to a “collateral charge”
and to an “understanding which was a corollary to this plea” to
establish the interrelationship to these two cases. Under such a
slender thread does [Ahearn] hang his hope of acquittal on these
charges. However, at the hearing on [Ahearn’s] motion to
dismiss the reinstated charges relating to the first complaint, the
Potter County assistant district attorney involved in both the
guilty plea agreement and the nol pros motion vehemently
denied that there was any type of “package plan” in order to
induce [Ahearn] to plead guilty to the charges contained in the
second complaint. The assistant district attorney also stated that
she consistently rejected any overtures made by [Ahearn] to
persuade the Commonwealth to agree to such a deal. The trial
court found this uncontroverted testimony to be credible and we
will not disturb that finding. See Commonwealth v. Jackson,
[485 A.2d 1102 (Pa. 1984)] (a determination of the credibility of
witnesses is within the sole province of the trier of fact). Thus,
[Ahearn] fails to carry his burden to establish how he could have
reasonably understood the existence of an interrelationship
between the guilty plea agreement and the entry of the nolle
prosequi.
Ahearn, 670 A.2d at 136.
As in Ahearn, the trial court in this case credited the testimony of the
Commonwealth that the charges in Case 855 were nol prossed because the
only witness, C.D., was reluctant to testify. N.T., 3/8/2017, at 57.
Furthermore, the court found there was: (1) no written plea agreement; (2)
no mention during the colloquy of the nol prossed charges being connected
to the guilty plea; and (3) a specific mention by the plea court that there
- 14 -
J-S78033-17
were no other plea bargains in the case. Trial Court Opinion, 5/9/2017, at
19-20.
On appeal, Appellant does not point to any evidence that there was an
“actual representation by the Commonwealth or that there was
representation made by the Commonwealth” which led Appellant reasonably
to believe the nol prossed charges were related to his guilty plea. Instead,
Appellant attempts to rebut the trial court’s findings based upon the fact
that: (1) Case 855 and Case 825 were dealt with at the same time and place
(as opposed to Ahearn where the guilty plea took place later in the day
after the charges in the first case were nol prossed); (2) the charges were
nol prossed only after Appellant pled guilty at Case 825; (3) the trial court
found defense counsel was “sincere” in his beliefs that the cases were
related; and (4) at the guilty plea, in response to Appellant asking if Case
855 was “settled,” counsel, on the record, stated “yes, it’s nol prossed.”
Appellant’s Brief at 7; N.T., 3/8/2017, at 36-37. See also N.T., 5/24/2016
at 12.
Upon review of the record, we find the foregoing does not sustain
Appellant’s burden of proof. Likewise, we conclude the trial court’s
reasoning for denying Appellant’s motion is supported by the record and in
line with our case law cited supra. Thus, we agree with the trial court that
- 15 -
J-S78033-17
double jeopardy does not attach to the previously nol prossed charges in
Case 855.
Lastly, to the extent Appellant argued and properly preserved his
compulsory joinder issue within his brief to this Court, we address this claim
mindful of the following. “Generally speaking, the compulsory joinder
statute sets forth the requirements for when a current prosecution is
precluded due to a former prosecution for a different offense.”
Commonwealth v. Fithian, 961 A.2d 66, 68 (Pa. 2008).
The purpose behind Section 110 is two-fold. First, it
protects a defendant from the governmental harassment of
being subjected to successive trials for offenses stemming from
the same criminal episode. Secondly, the rule assures finality
without unduly burdening the judicial process by repetitious
litigation.
Commonwealth v. Gimbara, 835 A.2d 371, 373 (Pa. Super. 2003)
(quotations and some citations omitted).
Regarding Case 825, as correctly recognized by the trial court, “the
Supreme Court of Pennsylvania has [] stated unequivocally that the
compulsory joinder requirement of 18 Pa.C.S.[] § 110 is inapplicable where,
as here, the offense first prosecuted was a summary one.”
Commonwealth v. Barber, 940 A.2d 369, 379 (Pa. Super. 2007) (internal
quotations omitted). See also Commonwealth v. Caufman, 662 A.2d
1050, 1051 (Pa. 1995) (“The statutory joinder requirement [is] inapplicable
where, as here, the offense first prosecuted was a summary one.”).
- 16 -
J-S78033-17
Furthermore, in light of our conclusion that Appellant failed to sustain
his burden in proving that the charges in Case 855 were nol prossed in
exchange for his guilty plea in Case 825, Appellant’s compulsory joinder
argument as to Case 855 likewise fails. Because Case 855 did not result in
an acquittal or a conviction, the Commonwealth is neither barred from
reinstating the charges nor is it precluded from adding additional charges.
Order affirmed.4
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2018
4
We are cognizant that both the trial court and Commonwealth address
several ancillary issues that were raised at the hearing on Appellant’s motion
to dismiss. However, on appeal, Appellant’s sole contention is that Case
1513 “should be dismissed for [violating Appellant’s] constitutional right
against double jeopardy and [his statutory right of] compulsory joinder.”
Appellant’s Brief at 13.
- 17 -