J-S71039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROSHA CHARLES WILLIAMS
Appellant No. 837 WDA 2015
Appeal from the Order Entered May 8, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000749-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MARCH 08, 2016
Rosha Charles Williams appeals from the order entered May 8, 2015,
in the Erie County Court of Common Pleas, denying his pre-trial motion to
dismiss charges of persons not to possess firearms, possession of a firearm
without a license, prohibited offensive weapons, and disorderly conduct,1
based on collateral estoppel. On appeal, Williams contends the trial court
erred in denying his motion to dismiss because a determinative fact in his
case has already been decided in his favor by a parole board hearing
examiner. For the reasons that follow, we quash this appeal.
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1
See 18 Pa.C.S. §§ 6105, 6106, 908, and 5503(a)(4), respectively.
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The facts and procedural history underlying Williams’ appeal are as
follows. On October 12, 2013, Williams was at Dowling’s Tavern in Erie,
Pennsylvania, where he got into an argument with several bar patrons. He
left the bar, but soon returned with another individual. Upon his return,
Williams began to fight with the same group again. He then pulled a small
shotgun from his pants and pointed it at the floor. Bar security was able to
remove Williams from the bar, and he fled in an SUV.
Williams was subsequently arrested and charged with the
aforementioned crimes. Because Williams was on state parole at the time of
his arrest, a parole detainer was lodged against him. Williams claims a
Gagnon II parole violation hearing was held on December 20, 2013,2 at the
conclusion of which the hearing examiner issued the following findings: (1)
probable cause was established for the condition prohibiting alcohol
possession, and (2) no probable cause was established for the condition
prohibiting entering establishments that sell alcohol. See Motion to Dismiss,
4/1/2015, Exhibit B (Hearing Examiner’s Finding, 12/20/2013).
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2
The trial court explained in its opinion that Williams failed to provide
evidence that the Gagnon II hearing, which he claims is dispositive,
actually related to the charges at issue. See Trial Court Opinion, 1/20/2016,
at 3. The court noted the written “finding” upon which Williams relies failed
to include a docket number or any reference to the present charges, and
Williams did not call parole hearing officer to testify. Id.
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Meanwhile, Williams’ criminal case proceeded to trial, first on the
charge of persons not to possess firearms.3 On February 18, 2015, the jury
indicated it was deadlocked, and the trial court declared a mistrial.
Thereafter, on April 1, 2015, Williams filed a motion to dismiss all the
pending charges based on collateral estoppel. Specifically, he argued the
parole hearing officer’s finding of “no probable cause” definitively established
that he was not the individual that brandished a firearm inside Dowling’s
Tavern on October 12, 2013, and the Commonwealth was precluded from
re-litigating the issue. See Motion to Dismiss, 4/1/2015, at 2-3. The trial
court conducted a hearing on May 8, 2015, at the conclusion of which it
denied the motion to dismiss without an opinion. This timely appeal
followed.
On May 20, 2015, the trial court directed Williams to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Williams did not comply with the court’s directive, and, on June 19, 2015,
the trial court issued a memorandum opinion concluding all of Williams’
issues were waived. Thereafter, on July 15, 2015, counsel for Williams filed
a motion seeking permission to file a concise statement nunc pro tunc,
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3
The remaining charges were severed due to the fact that Section 6105
required evidence that Williams had prior convictions. See N.T., 2/17/2015,
at 4-7.
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averring he never received the court’s concise statement order. The trial
court denied the motion.
When Williams’ appeal first appeared before this panel, we found
counsel’s failure to file a court-ordered concise statement constituted
ineffectiveness per se. See Order, 12/21/2015, at 1. Accordingly, pursuant
to Pa.R.A.P. 1925(c)(3), we remanded the case to the trial court to file an
opinion in response to the untimely concise statement. The court complied
with our directive, and the appeal is now ready for disposition.
Preliminarily, however, “we must determine whether we have
jurisdiction over this appeal.” Commonwealth v. Taylor, 120 A.3d 1017,
1021 (Pa. Super. 2015). See Commonwealth v. Blystone, 119 A.3d 306,
311 (Pa. 2015) (appellate court may raise issue of jurisdiction sua sponte)
Pennsylvania Rule of Criminal Procedure 587 provides that if a trial
court denies a pretrial motion to dismiss based upon double jeopardy
grounds and does not find the motion frivolous, the order is immediately
appealable as a collateral order.4 See Pa.R.Crim.P. 587(B)(6). However, if
the court determines the motion is frivolous, the defendant’s only recourse is
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4
“The doctrine of collateral estoppel is a part of the Fifth Amendment's
guarantee against double jeopardy and is applicable to the states via the
Fourteenth Amendment.” Commonwealth v. States, 891 A.2d 737, 742
n.7 (Pa. Super. 2005), aff'd, 938 A.2d 1016 (Pa. 2007).
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to file a petition for review, pursuant to Pennsylvania Rule of Appellate
Procedure 1573. Rule 1573 provides, in pertinent part:
(a) General rule. Any party seeking review of a frivolousness
determination by a court of common pleas under Pennsylvania
Rule of Criminal Procedure 587 shall file a petition for review in
the appellate court having jurisdiction over the matter. Review
of a frivolousness determination under Pennsylvania Rule of
Criminal Procedure 587 shall be governed by this chapter and
ancillary provisions of these rules, except as otherwise
prescribed by this rule. The time for filing is provided for in
Pa.R.A.P. 1512(a)(1).
Pa.R.A.P. 1573(a).
Here, the trial court determined Williams’ claim is “frivolous and
therefore not appealable as of right” because it was “not supported by facts
or law.” Trial Court Opinion, 1/20/2016, at 3, 5. First, the court found
Williams failed to provide evidentiary support for his contention that the
issue of whether he entered Dowling’s Tavern was conclusively determined
at his parole hearing. As the court explained:
The record is devoid of any evidence of what docket
number the alleged Gagnon II hearing occurred. There is no
evidence of any finding by a parole hearing officer. The parole
hearing officer did not testify. There is no evidence that this
hearing or finding related to the present case.
Id.
Second, the court concluded Williams’ claim was “legally untenable.”
Id. Relying upon Commonwealth v. Cosgrove, 629 A.2d 1007 (Pa.
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Super. 1993), appeal denied, 648 A.2d 788 (Pa. 1994),5 the trial court
opined:
The factual determination alleged by [Williams] was made
by a hearing examiner rather than a judge or jury and the
rationale behind Cosgrove applies. To find the Commonwealth
is collaterally estopped from bringing a case to trial based on a
finding in a parole violation hearing would “undesirably alter the
criminal trial process by permitting informal revocation
determination to displace the intended fact finding function at
trial” and would “undermine the function of the criminal trial
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5
In Cosgrove, the defendant was arrested after he stabbed the victim
during a fight. Cosgrove, supra, 629 A.2d at 1008-1009. Because the
defendant was on probation at the time of his arrest, he proceeded to a
probation violation hearing, at the conclusion of which the trial court did not
find the defendant violated his probation. Specifically, the court concluded it
“was unable to determine who was the aggressor in the confrontation.” Id.
at 1009. Thereafter, the defendant filed a motion to dismiss the criminal
charges, arguing the Commonwealth was collaterally estopped from
proceeding with the prosecution based on the court’s finding in the
revocation hearing. Id. at 1009-1010. The trial court refused to dismiss the
charges and the defendant appealed.
On appeal, a panel of this Court held that principles of collateral
estoppel did not bar the subsequent prosecution:
We hold that in order to ensure that the function of a criminal
trial is not usurped by that of the probation revocation hearing,
the Commonwealth may prosecute an individual on criminal
charges even where a court has previously determined that it
will not revoke the individual's probation based upon those
charges. The decision rendered at a probation revocation
hearing may not bind a subsequent factfinder at a criminal trial
whose primary function is to determine the presence or absence
of proof of guilt beyond a reasonable doubt.
Id. at 1011.
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process.” Cosgrove, 629 A.2d at 1011, citing Lucido v.
Superior Court, 795 P.2d 1223 ([Cal.] 1990).
Separately, a determination by a non-judicial hearing
officer at a Gagnon II hearing is not a final judgment. Instead,
a final judgment about whether a defendant is in violation of
supervision is made by a judge, who then has the authority to
revoke and/or re-sentence a defendant. It is the judge’s
determination which is final.
Id. at 4-5.
Because the trial court determined the collateral estoppel claim is
frivolous, the order denying Williams’ motion to dismiss is not appealable as
a collateral order. See Taylor, supra, 120 A.3d at 1022-1023;
Pa.R.Crim.P. 587. Further, because Williams did not file a petition for review
pursuant to Pa.R.A.P. 1573(a), we are precluded from considering whether
the trial court’s frivolousness determination was warranted.6 Consequently,
we are compelled to quash this appeal.7
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6
In Taylor, supra, similar to the instant matter, a panel of this Court
remanded the case to the trial court for a determination of whether the
defendant’s pretrial double jeopardy claim was frivolous. See Taylor,
supra, 120 A.3d at 1023. The panel noted, however, the fact it retained
jurisdiction over the appeal “would not excuse [the defendant’s] non-
compliance with Criminal Rule 587(6)(5) (sic) and Appellate Rule 1573 in the
event the trial court determines his double jeopardy motion to be frivolous.”
Id. at 1023 n.12. The same is true here.
Furthermore, even if we were to consider the trial court’s frivolousness
determination, we would deny the petition for review based on the well-
reasoned opinion of the trial court. See Trial Court Opinion, 1/20/2016, at
2-5.
7
We note that Williams’ collateral estoppel claim is not lost, but rather, he
may still challenge the court’s denial of his motion to dismiss after his retrial.
See Commonwealth v. Lee, 416 A.2d 503, 504-505 (Pa. 1980) (“We
(Footnote Continued Next Page)
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Appeal quashed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2016
_______________________
(Footnote Continued)
believe that a defendant may choose to proceed to trial and if convicted, still
challenge the propriety of the pretrial motion to dismiss on double jeopardy
grounds on appeal.”).
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Com. v. Williams, R.
Combined Opinion