Com. v. Diamond, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TERRY LEE DIAMOND, JR. : No. 532 WDA 2021
Appeal from the Order Entered April 27, 2021
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0000437-2020
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: APRIL 11, 2022
The Commonwealth of Pennsylvania appeals from the order entered on
April 27, 2021, which denied its petition for entry of nolle prosequi. We vacate
and remand.
On February 15, 2020, the Commonwealth charged Terry Lee Diamond,
Jr. (hereinafter “the Defendant”) with a number of crimes, including rape of a
mentally disabled person.1 See Criminal Complaint, 2/15/20, at 3; see also
Commonwealth’s Information, 3/17/20, at 1. The criminal complaint declared
that the complainant, B.A. (hereinafter “the Complainant”), is “a [23-year-old]
female who [has been diagnosed with Down Syndrome] and is incapable of
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3121(a)(5).
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giving consent” for sexual intercourse. See Criminal Complaint, 2/15/20, at
3. Further, the affidavit of probable cause stated:
[The Complainant] gave the forensic interviewer her account
regarding how and where she was sexually assaulted by [the
Defendant. The Complainant] began by explaining that [the
Defendant] was touching her “privates” and that this incident
occurred at [the Defendant’s] residence. [The Complainant]
further stated that [the Defendant] was touching her hair,
arms, body and privates and that she told him “no” and “I
told him not to touch me.” When the interviewer asked [the
Complainant] where [the Defendant] was touching her, she
explained that [the Defendant] was touching her butt, her
hair, arms, and her “private,” and stated that [the Defendant]
was touching her inside her “private” while pointing in
between her legs. When the interviewer asked [the
Complainant] what the condition of her clothes were during
the incident, [the Complainant] told the interviewer that her
clothes were off and explained that [the Defendant] took her
clothes off of her.
During the forensic interview, [the Complainant] told the
interviewer that [the Defendant] also touched her “private”
with his penis. The interviewer asked [the Complainant]
what [the Defendant’s] body was doing when his penis was
touching her “private,” [the Complainant] replied “humping
me.” [The Complainant] also stated that [the Defendant]
pushed too hard inside her “private” with his penis and that
it hurt her. [The Complainant] explained that this occurred
in [the Defendant’s] bedroom downstairs on the floor and
that the floor was hurting her back. [The Complainant] also
explained to the interviewer that [the Defendant] held her
down and would not let her go while he was having sex with
her.
Affidavit of Probable Cause, 2/15/20, at 2.
The Commonwealth filed its information against the Defendant on March
17, 2020. Commonwealth’s Information, 3/17/20, at 1-2.
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In April 2021, the Commonwealth filed a petition to nolle prosequi all
charges against the Defendant. The petition declared that the Commonwealth
sought to nolle prosequi the charges for the following reasons:
Prosecutorial discretion / respect for the [Complainant] and
the [Complainant’s] mother’s desire to not proceed on the
charges. They believe withdrawing charges is in the best
interest of the [Complainant] given the [Complainant’s]
unique circumstances and the circumstances of this particular
criminal case.
Commonwealth’s Petition for Nolle Prosequi, 4/27/21, at 1.
The petition declared that the Defendant consented to the entry of nolle
prosequi. See id.
On April 9, 2021, the trial court held oral argument on the
Commonwealth’s petition. During the argument, the Commonwealth
elaborated on the reasons it filed its petition:
Your Honor, there was a habeas and, I believe, also an
omnibus [pretrial] motion that was scheduled on a previous
Monday. And it was in the nature of a habeas and also, I
believe, a competency on the eye witness/[Complainant] of
this case. And when we had subpoenaed the [Complainant]
for that hearing, the [Complainant] and her mother reached
out to our office and spoke to a staff member in our office
about their unwillingness to come in and participate in that
and their desire to drop charges in the best interest of the
[Complainant].
I had my officer – I relayed that to the affiant in the case and
asked him to reach out to the [Complainant] and the family
and speak to the mother of the [Complainant], who's the
legal guardian. The [Complainant] suffers from Down
[S]yndrome. And the mother had confirmed that that was
her wish, that they had moved out of state – or were between
moving out of state and coming back, and had moved on and
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did not wish to proceed any further in these charges and that
they would not appear for the habeas.
I then had – when [the officer] informed me of that, I had
the chief of our victim/witness unit reach out and confirm all
this with them again and also offer services and answer any
questions that they may have. And confirm again that that
is what they wished and that was what they believed to be in
the best interest of the [Complainant].
After having it confirmed again, that's when we filed our
motion for nolle [prosequi], knowing that we were not going
to be able to put on any kind of evidence at the habeas
hearing on that Monday, because our witnesses were not
going to show. And the mother, and the [Complainant], as
far as we know through the mother, did not wish to proceed
any further. And [the mother] believed it would simply just
re-traumatize the [Complainant] to have her come in and
testify again. She did appear at the preliminary hearing and
gave brief testimony there. And so that's why we filed our
nolle [prosequi], Your Honor.
...
I can't with any confidence say that [the Complainant] would
appear [for trial]. That was one of the main issues that they
had told us, she would not appear and participate any further.
And in cases like this, obviously they are very serious and
they're traumatic; and the mental and emotional well-being
of the [Complainant] is obviously very important to us, as
well as prosecuting people we believe to have committed
these crimes. When the [Complainant] says that they do not
want to proceed with the charges because it would not be in
their best interest to do so, that's something that we take
seriously. And we did have [the chief of our victim/witness
unit] try to provide her with an opportunity for counseling
and things of that sort, which she did not avail herself of as
of yet, although, we will continue to reach out to her and
make that offer available to her.
N.T. Oral Argument, 4/9/21, at 3-4 and 8-9 (some capitalization omitted).
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On April 27, 2021, the trial court denied the Commonwealth’s petition.
Within the trial court’s accompanying opinion, the trial court did not pass upon
the question of whether the Commonwealth’s stated reason for requesting the
nolle prosequi was valid and reasonable. Instead, the trial court explained
that it denied the Commonwealth’s petition because, it believed, “the
Commonwealth [could] sustain a prima facie case against the Defendant”
even absent the Complainant’s testimony at trial. Trial Court Opinion,
4/27/21, at 5.
The Commonwealth filed a timely notice of appeal from the trial court’s
April 27, 2021 interlocutory order and, within the Commonwealth’s notice of
appeal, the Commonwealth properly certified that the order “will terminate or
substantially handicap the prosecution.” Commonwealth’s Notice of Appeal,
4/29/21, at 1; see also Pa.R.A.P. 311(d).2 The Commonwealth raises the
following claims on appeal:
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2 “Certification of pretrial appeals by the Commonwealth [under Pennsylvania
Rule of Appellate Procedure 311(d)] is an exception to the requirement that
appeals may be taken only from final orders.” Commonwealth v. Cosnek,
836 A.2d 871, 873 (Pa. 2003). As our Supreme Court has explained, “[w]hen
a pretrial motion removes evidence from the Commonwealth’s case, only the
prosecutor can judge whether that evidence substantially handicaps his ability
to prove every essential element of his case. Additionally, only the prosecutor
can judge whether he can meet his constitutional burden of proving his case
without that evidence.” Id. at 875 (citations omitted). In following, the
Supreme Court has held that the Commonwealth may utilize Rule 311(d) to
immediately appeal “a pretrial ruling [that] results in the suppression,
preclusion or exclusion of Commonwealth evidence.” Id. at 877.
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1. Did the trial court abuse its discretion in failing to address
the validity and reasonableness of the Commonwealth’s basis
for the nolle [prosequi]?
2. Did the trial court abuse its discretion by manufacturing an
evidentiary reason for the Commonwealth’s petition for nolle
[prosequi] and replacing the Commonwealth’s given reason
of prosecutorial discretion based upon the wishes of the
[Complainant] with the court’s manufactured reason?
3. Did the trial court abuse its discretion in finding the
Commonwealth could sustain a prima facie case against the
Defendant without an evidentiary hearing?
4. Did the trial court’s refusal to grant the Commonwealth’s
nolle [prosequi], and thus the trial court’s directive to
continue the prosecution, violate the separation of powers
doctrine by substituting the trial court’s own discretion for
that of the Commonwealth in the prosecution of a criminal
matter?
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Interlocutory appeals under Rule 311(d) are not limited to orders that grant a
defendant’s suppression motion. Indeed, in Commonwealth v. Matis, the
Supreme Court held that Rule 311(d) permits the Commonwealth to
immediately appeal “[a]n order denying a motion for a continuance to secure
the presence of a necessary witness,” as that type of order “has the same
practical effect of an order suppressing or excluding evidence.”
Commonwealth v. Matis, 719 A.2d 12, 18 (Pa. 1998).
The case at bar is similar to Matis. Here, the Commonwealth attested that
its eyewitness – the Complainant – “would not appear and participate any
further” in the case and, as a result, the Commonwealth petitioned the trial
court for permission to nolle prosequi the charges against the Defendant. N.T.
Oral Argument, 4/9/21, at 8; Commonwealth’s Petition for Nolle Prosequi,
4/27/21, at 1. If left undisturbed, the trial court’s denial of the
Commonwealth’s petition would force the Commonwealth to proceed in this
case without the testimony of the Complainant. The trial court’s order, thus,
“has the same practical effect of an order suppressing or excluding evidence.”
See Matis, 719 A.2d at 18. In accordance with our Supreme Court’s
precedent, we thus have jurisdiction over this appeal.
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Commonwealth’s Brief at 8 (some capitalization omitted).3, 4
“A nolle prosequi is a voluntary withdrawal by a prosecuting attorney of
proceedings on a particular criminal bill or information, which at [any time] in
the future can be lifted upon appropriate motion in order to permit a revival
of the original criminal bill or information.” Commonwealth v. Ahearn, 670
A.2d 133, 135 (Pa. 1996). As our Supreme Court has explained, a “district
attorney has a general and widely recognized power to conduct criminal
litigation and prosecutions on behalf of the Commonwealth, and to decide
whether and when to prosecute, and whether and when to continue or
discontinue a case.” Commonwealth v. DiPasquale, 246 A.2d 430, 432
(Pa. 1968) (some capitalization omitted). Nevertheless, after the filing of the
criminal information, the district attorney is not permitted to enter a nolle
prosequi “without having obtained the approval of the court.” 42 Pa.C.S.A.
§ 8932. Pennsylvania Rule of Criminal Procedure 585 further provides:
“[u]pon motion of the attorney for the Commonwealth, the court may, in open
court, order a nolle prosequi of one or more charges notwithstanding the
objection of any person.” Pa.R.Crim.P. 585(A).
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3For ease of discussion, we have re-numbered the Commonwealth’s claims
on appeal.
4The Defendant “concurs with the analysis of [the Commonwealth on appeal]
and adopts [its appellate] argument in full.” The Defendant’s Response,
10/22/21, at 1.
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The “grant or refusal of a petition for nolle pros . . . lies within the sound
discretion of the lower court, and its action will not be reversed in the absence
of an abuse of discretion.” DiPasquale, 246 A.2d at 432 (some capitalization
omitted). Regarding the “abuse of discretion” standard, our Supreme Court
has explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and some
quotation marks omitted).
Although the trial court is granted discretion in determining whether to
grant or deny the Commonwealth’s petition for nolle prosequi, our Supreme
Court has held: “there are two factors to be considered when a request for a
nolle prosequi is made: (1) is the reason given by the Commonwealth for
requesting the nolle prosequi valid and reasonable, and (2) does the
defendant, at the time the nolle prosequi is requested, have a valid speedy
trial claim?” Commonwealth v. Reinhart, 353 A.2d 848, 853 (Pa. 1976)
(footnotes omitted). The parties and the trial court agree that the Defendant’s
speedy trial rights are not implicated in this case. Therefore, under our
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Supreme Court’s precedent, the trial court was obligated to determine
whether “the reason given by the Commonwealth for requesting the nolle
prosequi [was] valid and reasonable.” See id. In considering this factor, the
trial court was “require[d] . . . to consider the reason given by the
Commonwealth, not to intuit or infer [a reason] to justify the court’s action.”
Commonwealth v. Rega, 856 A.2d 1242, 1245 (Pa. Super. 2004) (emphasis
in original).
As explained above, the trial court in this case failed to consider whether
“the reason given by the Commonwealth for requesting the nolle prosequi
[was] valid and reasonable” and, instead, mistakenly supplied its own reason
to deny the Commonwealth’s petition. To be sure, the Commonwealth sought
to nolle prosequi the charges for the following reasons:
Prosecutorial discretion / respect for the [Complainant] and
the [Complainant’s] mother’s desire to not proceed on the
charges. They believe withdrawing charges is in the best
interest of the [Complainant] given the [Complainant’s]
unique circumstances and the circumstances of this particular
criminal case.
Commonwealth’s Petition for Nolle Prosequi, 4/27/21, at 1.
Instead of determining whether the Commonwealth’s stated reason for
requesting the nolle prosequi was valid and reasonable, the trial court denied
the Commonwealth’s petition because, it believed, “the Commonwealth
[could] sustain a prima facie case against the Defendant” even absent the
Complainant’s testimony at trial. Trial Court Opinion, 4/27/21, at 5.
Respectfully, the denial of the Commonwealth’s petition on a basis that the
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trial court supplied is contrary to the law and, thus, constitutes an abuse of
discretion.5 See Rega, 856 A.2d at 1245. We note that the reason tendered
by the trial court for denying the Commonwealth’s petition turned almost
entirely upon the trial court’s view of the evidence, not on an assessment of
the explanation proffered by the prosecutor. The record is devoid of evidence
of steps taken by the trial court to ascertain the desires and objectives of the
complainant and her guardian/mother, to assess whether those aims align
with the grounds for withdrawal offered by the Commonwealth, and, if so, to
consider whether those grounds were reasonable under the circumstances.
We must, therefore, vacate the trial court’s order and remand this case to the
trial court, so that it may determine, in the first instance, whether “the reason
given by the Commonwealth for requesting the nolle prosequi [is] valid and
reasonable.” See Reinhart, 353 A.2d at 853.
Order vacated. Case remanded. Jurisdiction relinquished.
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5 We further note that the Commonwealth is not required to prosecute a
defendant merely because its potential evidence could – if viewed in the light
most favorable to the Commonwealth – sustain a prima facie case against a
defendant. The decision to go forward with a prosecution will always be
influenced by the prosecutor’s evaluation of the strength of the
Commonwealth’s potential case. See, e.g., Paul T. Crane, Charging on the
Margin, 57 WM. & MARY L. REV. 775, 812 (2016) (“[i]n its purest form, concerns
about likelihood of conviction are trained on the strength of the evidence and
whether the prosecutor thinks the ultimate adjudicator - a judge or jury - is
likely to enter a judgment of conviction”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2022
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