Com. v. Kolovich, R.
Com. v. Kolovich, R. No. 1273 MDA 2016
| Pa. Super. Ct. | Aug 25, 2017Background
- Robert Kolovich was charged in Luzerne County with third-degree felony Theft by Deception for taking about $3,984 from a victim for promised window work that was not performed; related charges in other counties arose from similar allegations.
- Kolovich previously faced similar prosecutions in multiple counties; he was acquitted in Centre County and had charges dismissed in Sullivan County; related motions in another Luzerne case were denied but not appealed.
- On August 12, 2015, Kolovich moved to bar the Luzerne County prosecution under the Double Jeopardy Clauses and Pennsylvania's compulsory-joinder statutes (18 Pa.C.S. §§ 110, 111); the trial court denied the motion on June 30, 2016.
- Kolovich appealed; this Court initially remanded for the trial court to comply with Pa.R.Crim.P. 587(B) and clarify whether the motion was non-frivolous; the trial court later found the motion non-frivolous and advised the denial was immediately appealable as a collateral order.
- The Superior Court accepted jurisdiction, reviewed Kolovich’s double jeopardy and statutory-joinder claims, and affirmed the trial court’s denial of the motion, finding Kolovich’s constitutional and statutory arguments waived for lack of developed briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether double jeopardy bars prosecution on Count 2 | Kolovich argued the Luzerne charge duplicates conduct prosecuted elsewhere (pattern of contractor fraud) and thus violates double jeopardy | Commonwealth argued Kolovich failed to properly develop constitutional argument; trial court denial stands | Waived for lack of developed argument; appellate court declined to address on merits |
| Whether 18 Pa.C.S. §§ 110 and 111 (compulsory joinder) bar prosecution | Kolovich claimed Section 110 prohibits a second prosecution arising from same criminal episode; cited definitions of single criminal episode and judicial-district prong | Commonwealth and trial court maintained joinder/compulsory-joinder analysis required factual development; defendant did not apply facts to law | Waived for failure to develop or cite record; appellate court did not reach merits |
Key Cases Cited
- Commonwealth v. Calloway, 675 A.2d 743 (Pa. Super. 1996) (discussed in context of § 111 analysis)
- Commonwealth v. Taylor, 120 A.3d 1017 (Pa. Super. 2015) (orders denying double jeopardy motions are appealable as collateral orders if non-frivolous)
- Commonwealth v. Nolan, 855 A.2d 834 (Pa. 2004) (sets out four-prong compulsory-joinder test)
- Commonwealth v. Woodard, 129 A.3d 480 (Pa. 2015) (failure to develop arguments on appeal results in waiver)