*1 World, Moose of the 243 Pa. Super. Acceptance Public McCoy Corporation, 451 Pa. (1973); Pappas Stefan, A.2d 698 Pa. 354,
A.2d 143 (1973);
Dwyer
Hunsberger,
Decision was rendered J., leaving bench Superior Pennsylvania. Court Pennsylvania,
COMMONWEALTH of KERN, Appellant. Richard Allen Superior Pennsylvania. Court Dec.
Argued
Filed Jan. *2 Allentown, for Orloski, appellant. J. Richard Allentown, Attorney, District Assistant Michael E. Moyer, Commonwealth, appellee. for VOORT, der VAN HESTER, CAVANAUGH Before JJ.
HESTER, Judge: of- summary of numerous was convicted The appellant timely He filed a Magistrate. a District fenses before County. Lehigh Pleas of of Common to the Court prosecution, Dismiss the a Motion also filed instituted been properly not action had the alleging Procedure of Criminal Rule Pennsylvania a cita- had issued magistrate district Pa.C.S.A., in that the him than a summons. tion to rather See Commonwealth Shelton, A.2d 1022 Said Motion the lower immediately Dismiss was entertained novo, to the on March hearing scheduled de which time the court ordered that the the against not be dismissed because Commonwealth could establish that a summons had been issued. The Common- wealth filed a of March petition rescind Order had mistaken facts and alleging parties that a summons had been issued to On properly appellant. lower April court issued a Rule the appellant to show cause should be why Order rescinded. Neither Commonwealth nor the ever appealed Order March On lower court entered an granting the Commonwealth’s Petition to Rescind the Order on the basis of the testimony *3 district to the magistrate had, fact, effect a summons 12, been issued to the appellant July on 1978. The lower court held jurisdiction that it had the of review Order 21, March 1979 and that the defense of did double jeopardy not apply. 1980,
On 17, filed a of Notice Appeal, 1980, and April 2, the lower court further stayed proceed- ings below of pending disposition Appeal.
The appellant raises numerous issues on appeal, including the following: (1) 27, was the of 1980, Order February which dismissed appellant’s defense of double a final jeopardy, Order; appealable (2) was 27, the Order of February 1980 appealable as an right, as of interlocutory to Pennsylvania of Rule Appellate 311(a)(5), Procedure 42 Pa.C.S.A.; (3) did lower court have re- jurisdiction to 1979; scind its 21, Order of March (4) as a result of the rescission of 21, 1979, Order March was the appellant placed in double jeopardy.
For the reasons stated below, we affirm the lower court’s 27, Order 1980,and remand February for further proceed- ings.
154 27,
We initially hold 1980 Order, was a final within the of our scope exclusive appel late 42 jurisdiction. Pa.C.S.A. Section In his answer to the Commonwealth’s Petition to Rescind the Order March raised the defense that subse any quent prosecution concerning the same criminal charges constitutes double under jeopardy Pennsylvania United States Constitutions. lower are not barred court held: “further proceedings the Double Clause: Jeopardy plea in order to on a prevail is axiomatic that
‘[I]t has double the defendant must establish he jeopardy, case, In a jeopardy. jury been once already placed until has been jury empan- does attach sworn; eled and and in a attaches non-jury ato and the subjected charge when the accused has been evidence.’ Court has hear begun Smith, 548-49, v. 232 334 Commonwealth Pa.Super. (1975).” A.2d 742 and dismissed the lower court entertained
Therefore, jeopardy. defense appellant’s case, this consti- of this dismissal the circumstances Under our review. Commonwealth subject tutes a final order Commonwealth Bolden, (1977); 95 472 373 A.2d Pa. Com- (1977); Haefner, Pa. 373 A.2d Starks, (1980); A.2d 336, 416 monwealth v. Pa. Pa.Super. v. Klinger, Commonwealth Meekins, Clark, (1979); 403 A.2d *4 The of the 655, (1981). dismissal 380, Pa. 430 A.2d Super. is final Order appealable a of jeopardy defense double irreparable of the will be Order because “the effect practical States, v. United DiBella appeal.” by any subsequent (1962). 654, 657, 7 L.Ed.2d 121, 126, 82 S.Ct. U.S. held has of Pennsylvania Court Supreme mandates Clause Jeopardy Double of the purpose an effec- claim, have must has a meritorious who defendant right his constitutional vindicating means of tive procedural to be trial. Commonwealth v. Bol an spared unnecessary den, case, he appellant In the instant claims that supra. has of been in double because the Order placed jeopardy him, March which dismissed the against was subsequently by rescinded lower court. Under these circumstances, the should have an proce effective dural means of his constitutional not to be vindicating right so subjected jeopardy, double as avoid possibly necessity trial.1 enduring 19, we
Since hold that the 1980consti order, tutes a final for the of the appealable purposes Code, Judicial we will not consider Pa.C.S.A. Section whether said an appealable, interlocutory Order is as as right, Rule of Pennsylvania Appellate 311(a)(5).2 Procedure this matter is before
Although properly this Court we appeal, hold that the has placed not been double as a result of the rescission of the Order 1979. On March the lower court dis missed the charges as a against appellant, result of its mistaken belief he had not been properly issued However, summons. actually lower court never reached case, merits nor did the lower court ever begin hear Mitchell, the substantive evidence. Commonwealth v. (1978); 396 A.2d Carson, 259 Pa.Super. 393 A.2d Smith, supra, Culpepper, 221 Pa.Super. 293 A.2d
The double jeopardy prohibition of Federal Constitu- tion “. . . protects against a second for the prosecution same placed 1. The also contends that he was initially summary since he was tried for the various offenses before a magistrate. Although district we not reach the do merits this contention, argument spurious we note that is and does not constitute a meritorious claim. disposition similarly 2. Because of our will of this we appellant. other address issues raised *5 156
offense after
It
acquittal.
protects against
prose
second
cution for the same offense after conviction. And it pro
tects
for the
against multiple punishment
same offense.”
711,
Pearce,
717,
2072,
North
v.
89
Carolina
U.S.
S.Ct.
(1969).
White,
The in the instant appellant, hearing an evidentiary by convicted after lower Since lower court initially court.3 dismissed evidence, the hearing any appellant without ever charges, never, He was for the offense. was not placed fact, tried before the lower court.4 its jurisdiction to rescind the lower court had Finally, Section 21, 1979, to Pa.C.S.A. Order of March or provided pre as otherwise “Except which states: law, may notice upon parties scribed court its entry, within 30 after days or rescind modify any court, any termination of term notwithstanding taken or filed.” has been if no from such Order a Rule upon court issued the lower In the instant the Order of why to show cause The entry. its rescinded, days within should not be or jurisdiction modify statutory lower had express earlier, guilty before the district found was As 3. noted timely appeal However, magistrate. appellant filed a since the argue legitimately court, novo, may a violation he lower de Thomas, 448 Pa. jeopardy. on March tried “in absentia” he was claims that Appeal this filing Court. days of the Notice after the ten issue, of the our review we note that Although we do not reach this stayed all that, April the lower court on record indicates filing appeal, of the disposition as proceedings pending further Appeal March of the Notice of Order, rescind its which is not inconsistent with the jurisdic- *6 Court, tion of this to 42 Pa.C.S.A. Section and the for Affirmed case remanded further pro- ceedings.
CAVANAUGH, J., files a dissenting opinion.
CAVANAUGH, Judge, dissenting:
reject
With all due
I
respect,
majority’s
must
applica-
Bolden,
tion
of Commonwealth v.
472 Pa.
A procedural brief reiteration of the will history illustrate inappropriateness present juncture. Appellant for a trial de timely appealed novo before the Pleas Lehigh County Common Court after his conviction of summary Magistrate. offenses before a District to Prior trial, scheduled de novo moved to dismiss the prosecution because an alleged violation of Pa.R.Crim.P. and, The lower agreed court on March dis- missed the charges against appellant. there- Immediately after, filed a petition to rescind that order it grounds that was based on mistaken facts.
In response, (a) appellant claimed the court lacked jurisdiction order, its (b) reverse dismissal a trial de novo was barred double jeopardy. 27, 1980,
On February the Common- granted 21, 1979, wealth’s and reversed petition its March dismissal order. The court jurisdiction also held that it had to review its earlier order and that appellant’s defense of double jeopardy was inapplicable because appellant had never been 17, 1980, on March
brought Appellant, trial. appealed this court In a per from 1980 order. curiam order of June we denied the Common wealth’s 1980 motion to quash appellant’s appeal April jurisdic without to the prejudice parties’ rights argue tional propriety appeal.1 of this raised, herein I must
Turning disagree now to the issue with the Bolden the resolution of requires majority claim. The double appellant’s against the Federal Constitution “. . . prohibition protects acquittal. the same offense after prosecution second for It for the same offense protects prosecution second against against multiple punish- after it protects conviction. And *7 797; Hester, of J. (Opinion ment for the same offense.” in Bol- Court Accordingly, Supreme omitted). citations den stated: to pre-trial application
We the denial of a hold that that the scheduled on the ground dismiss an indictment placed not to be right the defendant’s trial will violate trial before the new appealed in bemay twice jeopardy to subjected is erroneously a defendant place. takes Once appellate nor acquittal neither an another prosecution, his consti- is to vindicate reversal a conviction sufficient of We in jeopardy. be twice not to right placed tutional multiple prosecu- to be free from conclude that the right clause, be can jeopardy in the double tion, embodied an immediate by permitting only protected adequately of relief. court’s denial a trial from appeal added). Applying (emphasis A.2d at 93 373 472 Pa. at entertained frequently courts have Bolden, our appellate will violate reprosecution alleged which have appeals 493 Sample, Commonwealth See, g., e. double jeopardy. us, briefs indicate properly before Although is not this issue filing 1980 notice that, the March subsequent his to instant court, and convicted was tried to this in ceeding accurate, pro is If this information Pleas Court. Common 1701(a). nullity. See Com Pa.R.A.P. appear be a would (1980). Borris, Pa.Super. 421 A.2d monwealth Washington, 582 Pa. 426 A.2d however, (1981). appeals, Pa. Those has a prior have matters in which there been involved at which has attached. proceeding jeopardy already We have said that:
it is axiomatic that in on a prevail plea order double the defendant must establish that he has jeopardy In already been once in placed jeopardy. jury does not attach until the has been jeopardy jury impan- sworn; eled and in a non-jury case, attaches jeopardy when the accused has been subjected to and the charge court hear begun has evidence. Smith, 546, 548-549, Pa.Super. where has Consequently, jeopardy initio,
attached ab there can be no subsequent viable claim S., In The jeopardy. Compare George Interest III, (1981) (order A.2d 650 denying motion to dismiss on double grounds in jeopardy appealable juvenile case where was transferred court; adult juvenile court and then returned to the court juvenile held the remand for further court proceedings would not in place appellant twice because there had been no juvenile adjudicatory proceeding court).
Here, has never been once placed for I, therefore, *8 these crimes.2 cannot with go along majori conclusion that ty’s 1980order constitutes a final appealable meaning order within the of 42 Pa.C.S.A. because has labeled his Simply § as a “double jeopardy” claim does not make it cognizable, partic an ularly where examination the procedural history makes clear that such a claim is inappropriate junc ture. I Because do not read so broadly Bolden as to encom pass the instant I appeal, would order it quashed and re
mand this matter for trial. agree majority appellant’s I with the initial trial and conviction Magistrate before a District does not raise a meritorious double jeopardy issue.