Commonwealth v. Woodard , 136 A.3d 1003 ( 2016 )

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2016 Pa. Super. 65
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JEREMY TRAVIS WOODARD
Appellee No. 103 WDA 2015
Appeal from the Order December 11, 2014
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001247-2014
*****
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KEITH REED
Appellee No. 104 WDA 2015
Appeal from the Order December 11, 2014
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001246-2014
*****
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOSHUA N. CAMBRIC
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Appellee No. 105 WDA 2015
Appeal from the Order December 11, 2014
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001269-2014
BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*
OPINION BY LAZARUS, J.: FILED MARCH 15, 2016
The Commonwealth of Pennsylvania seeks review of an order denying
its motion to consolidate pursuant to Pa.R.Crim.P. 582. For the reasons set
forth herein, we quash the appeal.1
The Commonwealth charged Joshua N. Cambric, Jeremy Woodard, and
Keith Reed with homicide, conspiracy and other offenses related to the
killing of Tony Phillips on March 30, 2014, in Johnstown. On October 9,
2014, the Commonwealth filed a motion to consolidate based on
Pa.R.Crim.P. 582(A)(2), which provides, “[d]efendants charged in separate
indictments or informations may be tried together if they are alleged to have
participated in the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses.” The trial court denied the
motion on December 11, 2014. In reaching its decision, the trial court relied
on Rule 583, which provides, “[t]he court may order separate trials of
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*
Former Justice specially assigned to the Superior Court.
1
We have consolidated the appeals because they all involve the same order.
See Pa.R.A.P. 513.
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offenses or defendants, or provide other appropriate relief, if it appears that
any party may be prejudiced by offenses or defendants being tried
together.” The court specifically found that “Defendants may be prejudiced
by being tried together.” Trial Court Order, 12/11/14, at 1.
The Commonwealth filed a motion for reconsideration, which the trial
court denied. The Commonwealth then filed a notice of appeal in each case,
certifying that the orders denying joinder will terminate or substantially
handicap the prosecution.
The threshold question in this case is whether this court possesses
appellate jurisdiction over the order from which the Commonwealth seeks
review. Pennsylvania Rule of Appellate Procedure 311(d) provides:
In a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order
that does not end the entire case where the Commonwealth
certifies in the notice of appeal that the order will terminate or
substantially handicap the prosecution.
Pa.R.A.P. 311(d) (emphasis added). Rule 311(d) is often invoked in appeals
addressing the admission or exclusion of evidence. Commonwealth v.
White (White I), 818 A.2d 555, 558 (Pa. Super. 2003) aff'd in part, rev'd in
part, 910 A.2d 648 (Pa. 2006) (White II). In addition to evidentiary
rulings, appellate courts have recognized the right of the Commonwealth to
appeal several types of non-evidentiary pretrial orders. Id. See e.g.,
Commonwealth v. Buonopane, 599 A.2d 681 (Pa. Super. 1991) (order
precluding Commonwealth from seeking death penalty); Commonwealth v.
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Johnson, 669 A.2d 315 (Pa. 1995) (order transferring case from criminal to
juvenile court); and, Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998)
(order denying Commonwealth request for continuance to secure witness).
Although Rule 311(d) permits an appeal as of right, prior case law has
continually placed limits on the scope of this right as it pertains to non-
evidentiary issues. Thus, the court will not “accept blindly the
Commonwealth’s certification of substantial hardship” when appeal is sought
for non-evidentiary interlocutory orders. White I, supra at 558. As
illustrated by the White cases, the law regarding Commonwealth appeals
under Rule 311(d) is far from settled.
The White cases involved the Commonwealth’s appeal of two separate
pretrial rulings: 1) the denial of a recusal motion; and 2) the denial of the
Commonwealth’s request to have a jury determine the degree of guilt of a
criminal defendant who pled guilty to homicide. Id. at 557. This Court
quashed the appeal as it pertained to recusal, but found the jury request
appealable and reversed the order of the trial court on this issue alone. Id.
at 563. Regarding the rationale for distinguishing the issues based on the
nature of the order, this Court stated as follows:
[W]hen issues other than those evidentiary in nature are raised,
we may pause to consider the propriety of the Commonwealth’s
certification. No doubt this is due in part to a concern that
invocation of Rule 311(d) not become the norm, but rather
remain an exception to be utilized only where necessary.
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Id. at 559. Moreover, given the constitutional basis2 of the
Commonwealth’s asserted right to a jury trial, the denial of this right was
found to constitute a “substantial handicap” under Rule 311(d). Id. at 560-
61.
An equally divided Supreme Court revisited these issues and ultimately
reversed this Court regarding the use of Rule 311(d) to appeal the trial
judge’s order refusing to recuse herself. However, a 4-2 majority affirmed
that the denial of a jury trial request for a degree-of-guilt determination was
appealable under Rule 311(d). In the plurality opinion, Justice Eakin (joined
by Justices Castille and Newman) would have overruled prior precedent in
Commonwealth v. Cosnek, 836 A.2d 871 (Pa. 2003), which limited the
scope of Rule 311(d) to evidentiary rulings made by the trial court that
substantially interfered with the presentation of the Commonwealth’s case.
The plurality found that the rule authorizes the Commonwealth to appeal
any pre-trial order that has the potential to affect the Commonwealth’s
ability to meet its burden of proof. White II, supra at 655. Chief Justice
Cappy (joined by Justice Baer) opined that the doctrine of stare decisis, and
the principle of the “final order rule” militated against reversal. Id. at 666-
67 (Cappy, C.J., dissenting). Justice Saylor filed a concurring and dissenting
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2
Pa. Const. art I, § 6 (amended 1998) (“Furthermore, in criminal cases the
Commonwealth shall have the same right to trial by jury as does the
accused.”).
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opinion, joining the Opinion of the Court regarding the denial of a jury
request, but diverging regarding the motion to recuse. Upholding precedent
limiting the scope of Rule 311(d), Justice Saylor explicitly adopted this
Court’s rationale in the decision below. Id. at 662-63 (Saylor, J., dissenting)
(“I would affirm the decision of the Superior Court majority based largely on
the reasoning that it supplied.”). Justice Saylor further noted that after
Cosnek, the Supreme Court recognized:
There are, of course, other types of orders that Cosnek did not
address, but which may also be appealable under Rule 311(d).
See e.g., Commonwealth v. Boos, 620 A.2d 485 (Pa. 1993)
(order reinstating appellee into ARD program was immediately
appealable as it had the effect of terminating DUI charge);
Commonwealth v. Hughes, 364 A.2d 306, 308 n.2 (Pa. 1976)
(order quashing some, but not all, of charges against defendant
was immediately appealable).
Commonwealth v. Shearer, 882 A.2d 462, 466-67 n.6 (Pa. 2005).
Weighing in on this issue, our Court has stated:
While the Commonwealth’s good faith certification under Rule
311(d) is entitled to some deference, this Court need not accept
its good faith certification in every case. In White [II], for
example, an evenly divided Supreme Court could not agree
whether an order denying a recusal motion substantially
handicapped the Commonwealth’s prosecution. The divided
opinion left standing this Court’s opinion that the denial of a
recusal motion was not appealable pursuant to Rule 311(d).
Commonwealth v. Wright, 99 A.3d 565, 568 n.1 (Pa. Super. 2014).3
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3
Adding to the problematic nature of White II is the fact the Justices were
equally divided 3-3 on the issue of whether the denial of a recusal motion is
(Footnote Continued Next Page)
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This division among Justices of the Supreme Court regarding the
motion to recuse in White II leaves open significant questions regarding the
circumstances under which the Commonwealth may seek appeal of an
interlocutory order under Rule 311(d).
Despite the questions left open by our Supreme Court in White II, we
are guided by prior decisions related to interlocutory review of motions for
joinder or severance. In the specific context of an interlocutory order
granting the severance of two criminal informations, the Court found no
jurisdiction to consider a Commonwealth appeal. Commonwealth v.
Smith, 544 A.2d 943, 945 (Pa. 1988).
The order here appealed from granted the severance of two
criminal informations. In Commonwealth v. Saunders, 394
A.2d 522 (Pa. 1978), we addressed the appealability of such an
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(Footnote Continued)
appealable under Rule 311(d), thus allowing this Court’s decision on the
issue to stand. Nevertheless, four Justices held on the merits that the trial
judge should have recused herself. Accordingly, even though this Court’s
determination that an order denying recusal is not appealable remains the
law, the Supreme Court’s disposition paragraph in White II provides:
Accordingly, we reverse the quashal of the Commonwealth’s
appeal from the denial of its recusal motion and remand for the
appointment of another judge in this matter. We affirm the
order reversing the denial of the Commonwealth’s request for a
jury at White’s degree of guilt hearing.
Order reversed in part and affirmed in part. Case remanded.
Jurisdiction relinquished.
White II, supra at 662.
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order and had no problem in concluding that such an order is
interlocutory and thus not appealable. The reasoning for our
decision was that the Commonwealth was free to seek conviction
on both counts in two separate trials. Thus, the finality aspect
and the ensuing prejudice inherent in granting a suppression
motion is not present when faced with a severance order.
Smith, 544 A.2d at 945. Although the appeal before us presents an issue
related to joinder of informations, and not severance, the same logic applies.
Indeed, we “cannot disassociate the standard for consolidation pursuant to
Rule 582 and severance pursuant to Rule 583. They are the same.”
Commonwealth’s Brief, at 9.
Applying the reasoning from Smith, an order denying joinder, like an
order granting severance, is interlocutory and thus not appealable. Here,
the Commonwealth is free to seek conviction on all counts, against each
defendant, in three separate trials. Therefore, denial of the motion for
joinder does not terminate or substantially handicap the prosecution and is
not appealable under Rule 311(d). Id. To expand Rule 311(d) to
encompass such interlocutory review “would be to disturb the orderly
process of litigation. Strict application of the Rule assures that trials will go
forward as scheduled.” White I, supra at 559 (explaining why order
denying motion to recuse not appealable under Rule 313(d)).
In conclusion, the Commonwealth’s appeal of the order denying its
Motion to Consolidate must be quashed because the order is not appealable
under Rule 311(d).
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Appeal quashed; matter remanded for further proceedings consistent
with this opinion. Jurisdiction relinquished.
Judge Stabile joins the Opinion.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2016
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