Com. v. Sewell, G. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY SEWELL :
:
Appellant : No. 1497 MDA 2022
Appeal from the Order Dated September 26, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004395-2021
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED: AUGUST 29, 2023
Gregory Sewell appeals from the order that denied his motion to dismiss
based upon double jeopardy pursuant to 18 Pa.C.S. § 110. In this Court,
Brian McNeil, Esquire, has filed a petition to withdraw as Appellant’s counsel
and brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We deny counsel’s
petition and order new briefing.
On April 2, 2021, Appellant, driving with a suspended license, struck a
vehicle operated by Sandra Ramirez and left the scene without exchanging
information or rendering aid. By complaint filed June 29, 2021, at CP-67-CR-
4501-2021, Appellant was charged with accidents involving death or personal
injury, duty to give information and render aid, duties at stop sign, drivers
required to be licensed, and unlawful activities. This prosecution terminated
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when Appellant pled guilty on August 25, 2022, to driving while operating
privilege is suspended.
The Commonwealth initiated the instant case on August 10, 2021. In
the accompanying affidavit of probable cause, the prosecution asserted that,
in investigating Ms. Ramirez’s emergency call made on the date of the
collision, Hanover Police Officer Zachariah Lloyd ultimately identified Appellant
as the driver of the other vehicle. After obtaining Appellant’s insurance policy
information, Officer Lloyd discovered that on June 15, 2021, Appellant
informed his insurance adjuster in a recorded call that Appellant had been the
victim of the hit-and-run by a speeding police vehicle and that he had waited
at the scene for more than half an hour after calling the police who never
arrived. Accordingly, the Commonwealth charged Appellant with insurance
fraud pursuant to 18 Pa.C.S. § 4117(2).1
Appellant promptly filed a motion to dismiss on double jeopardy
grounds, asserting that the instant, second prosecution arose from the same
criminal episode as the first one that culminated in his guilty plea such that it
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1 That statute makes it an offense if one:
Knowingly and with the intent to defraud any insurer or self-
insured, presents or causes to be presented to any insurer or self-
insured any statement forming a part of, or in support of, a claim
that contains any false, incomplete or misleading information
concerning any fact or thing material to the claim.
18 Pa.C.S. § 4117(2).
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was subject to the compulsory joinder statute codified at 18 Pa.C.S. § 110.
After a hearing, the trial court denied Appellant’s motion to dismiss on
September 26, 2022. This timely appeal followed, and both Appellant and the
trial court complied with Pa.R.A.P. 1925.2
As noted, in this Court counsel filed both an Anders brief and a petition
seeking leave to withdraw as counsel. Consequently, the following legal
principles guide our review:
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof.
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any additional
points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
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2 As we discuss infra, we have jurisdiction over this interlocutory appeal as it
is from an immediately-appealable collateral order.
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Commonwealth v. Cook, 175 A.3d 345, 348 (Pa.Super. 2017) (cleaned up).
Our Supreme Court has further detailed counsel’s duties as follows:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record; (2) refer
to anything in the record that counsel believes arguably supports
the appeal; (3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that have
led to the conclusion that the appeal is frivolous.
Santiago, supra at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has complied with the technical
requirements set forth above.3 As required by Santiago, counsel set forth a
history of the case, referred to issues that arguably support the appeal, stated
his conclusion that the appeal is frivolous, and cited case law. See Anders
brief at 11-19. Therefore, we now go on “‘to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246,
1249 (Pa.Super. 2015) (quoting Santiago, supra at 354 n.5).
Counsel identified the following issues arguably supporting this appeal,
which we have re-ordered for ease of disposition:
[1.] Whether remand is required for compliance with Rule 587
because the lower court did not make specific findings of fact or a
finding as to frivolousness when it denied [Appellant]’s motion.
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3 Appellant did not file a response to counsel’s petition.
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[2.] Whether the lower court erred in denying [Appellant]’s
motion to dismiss pursuant to 18 Pa.C.S. § 110 because the
current prosecution arose from the same criminal episode as the
former prosecution and would not have been possible without it,
and there is a logical and temporal relationship between the two
cases.
[3.] Whether the previous version of 18 Pa.C.S. § 110 should
control because applying the current version denies [Appellant]
his ex post facto protections.
Anders brief at 4 (cleaned up).
We begin with a review of the law applicable to a claim that a subsequent
prosecution is barred on double jeopardy grounds because it was subject to
compulsory joinder. “The question of whether a defendant’s constitutional
right against double jeopardy would be infringed by a successive prosecution
is a question of law. When presented with a question of pure law, our standard
of review is de novo and our scope of review is plenary.” Commonwealth v.
Gross, 232 A.3d 819, 834-35 (Pa.Super. 2020) (en banc) (cleaned up).
Whether the instant prosecution is barred by Appellant’s former
prosecution for different offenses is governed by § 110, which, as amended in
2022, provides in pertinent part as follows:
Although a prosecution is for a violation of a different provision of
the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title (relating to
when prosecution barred by former prosecution for the same
offense) and the subsequent prosecution is for:
....
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(ii) any offense based on the same conduct or arising from
the same criminal episode, if such offense was known to the
appropriate prosecuting officer at the time of the
commencement of the first trial and occurred within the
same judicial district as the former prosecution unless the
court ordered a separate trial of the charge of such offense
or the offense of which the defendant was formerly
convicted or acquitted was a summary offense or a
summary traffic offense[.]
18 Pa.C.S. § 110.4
This Court has explained that, “a criminal episode is an occurrence or
connected series of occurrences and developments which may be viewed as
distinctive and apart although part of a larger or more comprehensive series.”
Commonwealth v. Jefferson, 220 A.3d 1096, 1100 (Pa.Super. 2019)
(cleaned up). “In making such a determination, one must consider the logical
relationship between the acts, i.e., whether there is a substantial duplication
of issues of law and fact, and whether the acts are temporally related.” Id.(cleaned up). For example, “[t]wo separate offenses may constitute the same
criminal episode if one offense is a necessary step toward the accomplishment
of a given criminal objective or if additional offenses occur because of an
attempt to secure the benefit of a previous offense or conceal its commission.”
Commonwealth v. Perillo, 626 A.2d 163, 166 (Pa.Super. 1993). However,
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4 The version of § 110 in effect when Appellant allegedly filed a fraudulent
insurance claim and was charged in the second prosecution was identical to
the current version but for subsection (1)(ii), which did not in the prior version
include the phrase “or the offense of which the defendant was formerly
convicted or acquitted was a summary offense or a summary traffic offense.”
See 18 Pa.C.S. § 110 (effective August 27, 2002, to July 10, 2022).
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“a mere de minimis duplication of factual and legal issues is insufficient to
establish a logical relationship between offenses. Rather what is required is a
substantial duplication of issues of law and fact.” Commonwealth v.
Schmidt, 919 A.2d 241, 247 (Pa.Super. 2007) (cleaned up).
Procedurally, claims that a prosecution would violate double jeopardy
are governed by Pa.R.Crim.P. 587(b) as follows:
(1) A motion to dismiss on double jeopardy grounds shall state
specifically and with particularity the basis for the claim of double
jeopardy and the facts that support the claim.
(2) A hearing on the motion shall be scheduled in accordance with
Rule 577 (Procedures Following Filing of Motion). The hearing
shall be conducted on the record in open court.
(3) At the conclusion of the hearing, the judge shall enter on the
record a statement of findings of fact and conclusions of law and
shall issue an order granting or denying the motion.
(4) In a case in which the judge denies the motion, the findings
of fact shall include a specific finding as to frivolousness.
(5) If the judge makes a finding that the motion is frivolous, the
judge shall advise the defendant on the record that a defendant
has a right to file a petition for review of that determination
pursuant to Pa.R.A.P. 1311(a)(3) within 30 days of the order
denying the motion.
(6) If the judge denies the motion but does not find it frivolous,
the judge shall advise the defendant on the record that the denial
is immediately appealable as a collateral order.
Pa.R.Crim.P. 587(b).
With these principles in mind, we turn to the questions identified by
counsel. Counsel’s first issue concerns the fact that the trial court failed to
make a finding as to frivolousness as required by Rule 587(b)(4), and whether
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remand for compliance with the Rule is necessary. In the trial court’s Rule
1925(a) opinion, it acknowledged the oversight, stated that it did not find the
motion to be frivolous, and urges this Court to proceed with the appeal. See
Trial Court Opinion, 1/4/23, at 8-9. We readily agree with counsel that there
is no merit to a claim that this case must be remanded for a frivolousness
finding. See, e.g., Commonwealth v. Santiago, 270 A.3d 512, 516 n.2
(Pa.Super. 2022) (observing that, where the trial court makes no finding that
the motion is frivolous, the order denying the motion is immediately
appealable as a collateral order).
The last two issues identified by counsel implicate the merits of
Appellant’s motion to dismiss. In his motion, Appellant had argued that § 110
barred the instant prosecution because the first prosecution resulted in a
conviction, the current charges arose from the same criminal episode, the
prosecutor was aware of all charges when the first prosecution commenced,
and all the charges arose in York County. See Motion to Dismiss, 8/29/22, at
¶ 10. Appellant maintained that it was a single criminal episode because it
involves the same April 2, 2021 accident, and the facts and witnesses are the
same, such that “separate trials would involve substantial duplication and
waste of judicial resources.” Id. at ¶ 9-10.
The trial court ruled that the instant prosecution was not part of the
same criminal episode as the earlier prosecution related to his hit-and-run
vehicle collision. The court explained its reasoning as follows:
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In looking at the temporal sequence of events, the incidents
and complaint dates are not the same. In the first case, the
incident date is listed as April 2, 2021. This second case before
this court has an incident date of June 15, 2021. That means a
total of seventy-four days, almost two and a half months, elapsed
between the two incidents. . . . Therefore, the temporal sequence
leans towards two separate incidents and not one criminal
episode.
The logical relationship between the two cases does overlap.
As the District Attorney’s Office was investigating the first case,
that investigation led to the charges in the second case. As the
first case involved charges surrounding a hit-and-run, the District
Attorney’s Office investigated the accident further and discovered
that [Appellant] allegedly lied on a recorded phone call to his
insurance adjuster. Although the second event of the alleged
fraud stems from the initial hit-and-run incident, that simply
creates a “de minimus” connection.
While there are some common issues of fact, there are no
common issues of law. [Appellant] plead guilty to a summary
charge of driving while operating privilege is suspended in the first
case on August 25, 2022, while the current case is graded as a
felony. . . . To prove its case for false/fraudulent insurance claim,
the Commonwealth needs to show that [Appellant] “knowingly
and with the intent to defraud any insurer” filed “ a claim that
contains any false, incomplete or misleading information
concerning any fact or thing material to the claim.” There is no
overlap in the elements of the law because the first case
[Appellant] plead guilty to driving a motor vehicle while his license
was suspended, revoked, or cancelled and before those driving
rights were restored. These factors also lead the court to find the
incidents were not one criminal episode.
. . . In this case, the Commonwealth stated the second case has
a different affiant, David Jay of the District Attorney’s Office, than
it had for the first case. The victims are different in each case
because the first victim would be the person in the other vehicle
and then the insurance company would be the victim for this
second case. A key witness for the second case would be the
insurance adjuster, who would likely not have been a key witness
for the first case. . . .
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In analyzing the totality of the circumstances in this case,
this court finds that there were two separate criminal episodes.
Trial Court Opinion, 1/4/23, at 4-6 (cleaned up).
In his Anders brief, counsel contends that the answer is simpler than
that. Counsel notes that, pursuant to the current version of § 110(1), a
second prosecution involving the same criminal episode is not barred if “the
offense of which the defendant was formerly convicted or acquitted was a
summary offense or a summary traffic offense.” 18 Pa.C.S. § 110(1)(ii).
Here, the offense of which Appellant was convicted in the first case was a
summary offense. “Accordingly, where [§] 110 exempts the instant scenario
from its protections under its own terms, counsel has concluded that further
pursuit of this issue in this appeal would lack arguable merit.” Anders brief
at 14.
Counsel acknowledges that, as we noted above, the summary-offense
exception was added to § 110 after Appellant committed his summary offense
and allegedly committed insurance fraud. However, counsel asserts that there
is no impediment to applying the current version of § 110 to resolve
Appellant’s motion filed after the effective date of the amendment because it
does none of the things that constitute an ex post facto violation. Id. at 16.
Specifically, the amendment to § 110 did not: “(1) criminalize conduct that
was previously not criminal; (2) aggravate the severity of a criminal law; (3)
increase the punishment for a crime; or (4) alter the rules of evidence, thus
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allowing less or different evidence to suffice for a conviction.” Id. (some
parentheses added).
We do not agree with counsel that the motion to dismiss is so obviously
meritless to classify this appeal as wholly frivolous. As this Court has
observed:
Our system of appellate review is based upon the notion that an
adversarial process will best advance the interests of the parties
and the development of the law. In this process, each side is
expected to make its best argument(s) and the appellate court
decides which argument is of greater merit. It appears that unless
a position is without question defeated by existing caselaw, an
appointed counsel should advance the best argument he/she is
capable of constructing and allow the appellate court to make the
ultimate determination that the argument lacks merit. It may be
that counsel believes that the argument advanced is unlikely to
ultimately prevail. Nevertheless, this does not mean that the
appeal is wholly frivolous.
Commonwealth v. Edwards, 906 A.2d 1225, 1231 (Pa.Super. 2006)
(cleaned up).
First, there is no caselaw to defeat an argument that the amendment to
§ 110(1)(ii) is not applicable in the instant case. The express exclusion of
summary offenses as a bar to a subsequent prosecution for the same criminal
episode took effect on July 10, 2022, which post-dated the filing of the second
prosecution. It appears that a good faith argument can be made that the
change in the law “impair[ed] rights [Appellant] possessed when he acted,”
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Commonwealth v. Johnson, 732 A.2d 639, 643 (Pa.Super. 1999), namely
the right not to face a second prosecution for the same conduct.5
Second, the question of whether the second prosecution stemmed from
the same criminal episode, which is the issue the trial court regarded as non-
frivolous in urging this appeal to proceed as one from a collateral order, is also
not squarely defeated by existing precedent. Indeed, it appears that counsel
opted to forgo presenting advocacy on this front not because he deemed the
issue unarguable, but because he thought the amended statute rendered it
moot. See Anders brief at 13.
Accordingly, while the issues identified by counsel may not ultimately
prevail, the available arguments are not so clearly devoid of merit to warrant
classifying this appeal as wholly frivolous and relieving counsel of his duty to
advocate for his client. Therefore, we deny counsel’s petition for leave to
withdraw and order counsel to file an advocate’s brief within sixty days of the
date of this memorandum. The Commonwealth may file a brief in response
within thirty days thereafter. The parties should address both which version
of § 110(1)(ii) applies to our de novo review of the legal issue before us, and
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5 Notably, the Commonwealth in its letter brief expressly disagreed with
counsel’s evaluation, asserting that the statutory amendment is irrelevant and
that the motion was properly denied because “the clear separation between
the act of insurance fraud and the act of driving under suspension was already
a sufficient separation . . . even without the amendment[.]” Commonwealth’s
Letter in Lieu of Brief at 2.
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whether either the nature of the first prosecution or the existence of a single
or multiple criminal episodes sustains the trial court’s ruling.
Application of Brian McNeil, Esquire, to withdraw as counsel denied.
New briefs ordered. Panel jurisdiction retained.
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