Com. v. Massi, J.

J-A09001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JEFFERY MASSI,

Appellant No. 98 EDA 2014

Appeal from the Order December 9, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001179-2012

BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.: FILED MAY 19, 2016

Have to put that judge Donohue did not participate in this

appeal

Jeffery Massi appeals from the order entered December 9, 2013,

denying his motion to dismiss based on double jeopardy grounds. 1 We

affirm.

____________________________________________

1
This panel initially remanded this matter for compliance with Pa.R.Crim.P.
587(B)(4-6) (requiring judge to make finding as to whether double jeopardy
motion is frivolous and to advise defendant of appellate procedure that must
be followed after frivolity determination). We retained jurisdiction. In a
March 4, 2016 order, the trial court determined that the motion was not
frivolous and thus immediately appealable as a collateral order and so
advised Appellant. Pa.R.Crim.P. 587(B)(6); see also Commonwealth v.
Orie, 22 A.3d 1021, 1024 (Pa. 2011) (orders denying double jeopardy
claims are final orders for purposes of appeal absent a finding by the trial
(Footnote Continued Next Page)
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The pertinent facts of this matter are as follows. Appellant was on

probation for an unrelated crime. Agent Shawn Patrick Butler, who was

employed by the West Philadelphia Division of Probation and Probation, was

Appellant’s probation officer. On December 28, 2011, Agent Butler went to

7434 Merdick Place, Philadelphia, Appellant’s designated residence, to

conduct a home visit. Appellant admitted that he had recently consumed

Percocet and was therefore handcuffed and placed under arrest. Agent

Butler and his partner started to search the area. In so doing, Agent Butler

made a sweep of the utility room, which was accessible only through

Appellant’s bedroom.

On a shelf in that room, Agent Butler discovered a loaded gun that was

wrapped in material and plastic. When asked, Appellant admitted that he

was aware of the weapon’s existence, said that it belonged to his father, and

reported that he had not placed it in the utility closet. A glass pipe used to

consume drugs was found in a dresser in the bedroom. Accordingly, on
_______________________
(Footnote Continued)

court that the double jeopardy motion was frivolous): Commonwealth v.
Barber, 940 A.2d 369, 376 (Pa.Super. 2007) (“a defendant is entitled to an
immediate interlocutory appeal as of right from an order denying a non-
frivolous motion to dismiss on state or federal double jeopardy grounds.”).
Accordingly, the present appeal is considered timely as of the date of entry
of the March 4, 2016 order. Pa.R.A.P. 905(a)(5) (“A notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof.”).

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December 29, 2011, Appellant was charged in this action with possession of

a firearm by a prohibited person and possession of drug paraphernalia. On

January 27, 2012, after a preliminary hearing, the charges were bound over

for trial. Appellant then filed an omnibus pretrial motion to suppress

evidence and for habeas corpus relief, seeking dismissal of the charges due

to the lack of a prima facie case that he possessed a firearm.

On July 20, 2012, the Commonwealth conducted a violation of

probation (“VOP”) hearing in the other case based on Agent Butler’s

discovery of the drug paraphernalia and weapon. At that hearing, Agent

Butler testified to the above-cited facts. Specifically, he recounted that,

during the home visit on December 28, 2011, Appellant admitted that he

had recently consumed drugs and was arrested. Agent Butler searched the

vicinity and found the loaded gun on a shelf in the utility room next to

Appellant’s bedroom. Appellant admitted that he knew of the weapon.

Agent Butler also testified that Appellant told him that the gun in question

had “been in our family for a long time. My fingerprints will probably be on

it because my father always lets me hold it. I didn’t know it was there.”

Motion to Dismiss, 12/5/13, at Exhibit C (N.T., 7/20/12, at 14).

At the VOP hearing, Appellant’s father confirmed that he had

purchased the gun and was licensed to own it. Additionally, Appellant’s

mother testified that she wrapped the gun and placed it on the shelf in the

utility room. She explained that she wanted to hide the weapon from their

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grandchildren who visited the home. At the conclusion of the VOP hearing,

the court determined that the Commonwealth failed to establish by a

preponderance of the evidence that Appellant violated his probation by

illegally possessing a firearm or the drug paraphernalia and declined to find

Appellant in violation of the terms of his probation.

As a result of the VOP court’s ruling, on December 5, 2013, Appellant

filed a motion to dismiss this action based on “collateral estoppel principles

that are embodied in the [double jeopardy clause of the] Fifth Amendment

as well as the same principles that are embodied in Article 1, § 10 of the

Pennsylvania Constitution.” N.T., 12/9/13, at 7. According to Appellant,

since the Commonwealth failed to establish by a preponderance of the

evidence that he illegally possessed the firearm and pipe in question at his

VOP hearing, it was precluded from trying him for the same criminal

conduct. The Commonwealth countered that jeopardy had not yet attached

in either action and therefore no double jeopardy violation could occur by

trying Appellant.

The trial court held a hearing on the double jeopardy motion on

December 9, 2013, and denied it on the record. Appellant timely appealed.

The sole issue Appellant levels on appeal is:

Did the trial court err in denying Appellant’s motion to dismiss
this prosecution on double jeopardy grounds where the
Commonwealth first elected to proceed with a violation of
probation hearing in the court of common pleas and attempted
to punish the defendant and take away his liberty for the same

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alleged criminal conduct that now forms the basis for the instant
prosecution, but received an adverse ruling in the earlier
proceeding when the Commonwealth failed to sustain its burden
of proving a violation by a preponderance of the evidence.

Appellant’s brief at 4.

Our standard of review is as follows. “[A]n appeal grounded in double

jeopardy raises a question of constitutional law. This Court's scope of review

in making a determination on a question of law is, as always, plenary. As

with all questions of law, the appellate standard of review is de novo.”

Commonwealth v. Martin, 97 A.3d 363, 364 (Pa.Super. 2014) (citation

omitted).

The Fifth Amendment to the United States Constitution provides, in

pertinent part, “No person shall . . . be subject for the same offence to be

twice put in jeopardy of life or limb . . . . .” U.S.C.A. Const. Amend. V. “The

double jeopardy protections afforded by our state constitution are

coextensive with those federal in origin; essentially, both prohibit successive

prosecutions and multiple punishments for the same offense.”

Commonweatlh v. States, 938 A.2d 1016, 1017-19 (Pa. 2007) (emphasis

added). “In a jury trial, jeopardy attaches when the jury is empaneled and

sworn; in a non-jury trial jeopardy attaches when the court begins to hear

evidence.” Commonwealth v. Rosario, 613 A.2d 1244, 1247 (Pa.Super.

1992), aff'd, 679 A.2d 756 (Pa. 1996) (Serfass v. United States, 420 U.S.

377 (1975)). Additionally, our Supreme Court has recognized that “[a] VOP

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hearing differs from a trial, as probation and parole are not part of the

criminal prosecution[.]” Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa.

2007).

While collateral estoppel is most commonly used in the civil context,

criminal double jeopardy protections incorporate the doctrine of collateral

estoppel or issue preclusion. Ashe v. Swenson, 397 U.S. 436 (1970). In

Ashe, six men were playing poker in the basement of a home. Three or four

masked individuals entered the home armed with shotguns and pistols. The

assailants robbed the poker players and then escaped in one of the victim’s

cars. Police arrested three men within a close distance of that car, after it

had been abandoned. Ashe was arrested by another officer “some distance

away.” Ashe, supra at 437.

The state charged Ashe with six robberies and theft of the vehicle.

Ashe proceeded to trial on one count of robbery against a single poker

player. “The trial judge instructed the jury that if it found that the petitioner

was one of the participants in the armed robbery, the theft of ‘any money’

from [the one victim] would sustain a conviction.” Ashe, supra at 439.

The court added, “if the petitioner was one of the robbers, he was guilty

under the law even if he had not personally robbed [the individual].” Id.

The jury acquitted Ashe.

Subsequently, the state sought to prosecute Ashe for the robbery of

another poker player. The trial court denied Ashe’s double jeopardy motion,

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and the jury found him guilty. After the Missouri State Supreme Court

affirmed, Ashe sought federal relief. Ultimately, the United States Supreme

Court reversed, concluding that double jeopardy included the federal

collateral estoppel doctrine. It held that, based on the facts presented in the

first trial, the issue of whether Ashe had been one of the individuals to take

part in the robbery and theft had been decided.

The civil concept of collateral estoppel and that utilized in the criminal

context are distinct. States, supra at 1020. “With respect to the criminal

law defendant, collateral estoppel is treated as a subpart of double jeopardy

protection and is defined as follows: ‘Collateral estoppel does not

automatically bar subsequent prosecutions, but does bar redetermination in

a second prosecution of those issues necessarily determined between the

parties in a first proceeding which has become a final judgment.’” Id.

(partially quoting Commonwealth v. Smith, 540 A.2d 246, 251 (Pa.

1988)). Thus, collateral estoppel's application in criminal matters is “not as

straightforward as it is in the civil context because it must be viewed

through the lens of double jeopardy.” States, supra at 1020.

In the civil context, the doctrine of collateral estoppel promotes

efficiency by having an issue, once decided, given final effect in another

matter. However, “[t]he efficiency concerns that drive the collateral

estoppel policy on the civil side are not nearly as important in criminal cases

because criminal cases involve a public interest in the accuracy and justice

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of criminal results that outweighs the economy concerns that undergird the

estoppel doctrine.” Id. Thus, “[a]pplication of collateral estoppel principles

to the criminal law was intended to enhance the traditional double jeopardy

protection and to provide relief from the growing threat of multiple

prosecutions[, and] it is to be applied with realism and rationality and not

applied with the hypertechnical and archaic approach of a 19th century

pleading book.” Id. (citation omitted).

In Pennsylvania, the criminal iteration of the concept of collateral

estoppel is derived from Ashe and employs “the federal three-part test to

determine if collateral estoppel applies to limit further litigation on a

particular issue.” Id. at 1021. We apply collateral estoppel criminally where

there is:

1) an identification of the issues in the two actions for the
purpose of determining whether the issues are sufficiently
similar and sufficiently material in both actions to justify invoking
the doctrine;

2) an examination of the record of the prior case to decide
whether the issue was “litigated” in the first case; and

3) an examination of the record of the prior proceeding to
ascertain whether the issue was necessarily decided in the first
case.

Id.; Commonwealth v. Smith, 540 A.2d 246, 251 (Pa. 1988);

Commonwealth v. Hude, 425 A.2d 313, 320 (Pa. 1980).

In the present case, Appellant seeks to apply collateral estoppel since

the issue herein, whether he possessed the gun, was identical to that

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involved in the VOP proceeding, wherein the Commonwealth sought to

revoke his probation based upon his possession of the weapon. That issue

was litigated at the VOP proceeding and the VOP court determined that a

violation did not occur. Appellant also notes that the Commonwealth in the

VOP proceeding had a lesser standard of proof, a preponderance of the

evidence.

We conclude that our decision in Commonwealth v. Cosgrove, 629

A.2d 1007 (Pa.Super. 1993), is controlling herein. The precise issue decided

in that case is the same one in the instant appeal: “The issue presented in

this appeal is whether the Commonwealth may continue to prosecute at trial

offenses which have been already found by a court not to constitute a

violation of the terms of the accused's probation.” Id. at 1008. As in this

case, the defendant therein maintained that the collateral estoppel aspect of

double jeopardy prevented the Commonwealth from proceeding to trial in

that matter since he was previously found not to be in violation of the terms

of probation.

The facts were as follows. Cosgrove pled guilty to burglary in a

different case and was sentenced to a probationary term. While on

probation, he was arrested and charged at the criminal action in question in

Cosgrove. The charges included attempted murder, aggravated assault, a

weapons offense, and related crimes. Those charges were based upon an

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altercation between Cosgrove and James Plenderleith in a parking lot after a

concert when Cosgrove stabbed Plenderleith.

Cosgrove was charged with VOP in the other criminal case. The

Commonwealth first proceeded to the VOP hearing. At the VOP hearing,

Plenderleith claimed that Cosgrove was the aggressor in their confrontation.

However, the evidence established that Plenderleith was a member of a neo-

Nazi skinhead group and the Ku Klux Klan, and the melee in the parking lot

was started by one of those organizations. After the conclusion of the VOP

hearing, the VOP court found that it could not determine if Cosgrove or

Plenderleith was the aggressor in the fight, and declined to find Cosgrove in

violation of the terms of his probation.

Cosgrove then moved for dismissal of the pending criminal charges

arising from the stabbing. The trial court in Cosgrove found that the

Commonwealth’s failure to carry its burden of proving a probation violation

“by a preponderance of the evidence did not collaterally estop the

prosecution of the underlying charges.” Id. at 1009. It “concluded that a

probationer has not been placed in jeopardy for new criminal charges when

a probation revocation hearing is held prior to trial on the new charges.” Id.

at 1010. The trial court also relied upon cases from other jurisdictions

wherein the courts ruled that a prior revocation hearing does not bar a

criminal trial for the conduct upon which the VOP proceeding was premised.

The trial court found that “the societal interest in prosecuting charges

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requires that the Commonwealth have a fair opportunity to prove the

charges against a defendant beyond a reasonable doubt.” Id.

We adopted the reasoning of the trial court. In so doing, we rejected

Cosgrove’s invocation of the decision in Commonwealth v. Brown, 469

A.2d 1371 (Pa. 1983). Brown involved the reverse of the scenario at issue

in Cosgrove. Specifically, Brown was on probation when he committed new

offenses. The Commonwealth decided to go to trial on the new offenses

before it proceeded with the VOP proceeding. The defendant was acquitted

of the charges at the criminal trial. The Commonwealth then proceeded

successfully with a probation revocation hearing based upon the same

conduct for which the defendant had been acquitted. Our Supreme Court

reversed. It found that the prior acquittal prevented the Commonwealth

from re-litigating the issue of the defendant's commission of the crimes.

The Supreme Court reasoned that, since the Commonwealth decided to

proceed to trial before a jury, it was not entitled to a second bite of the

apple by relitigating the same issue at the VOP hearing. It noted that a

defendant is bound in a subsequent revocation hearing by an earlier

determination that he is guilty of the charges, and concluded that the

Commonwealth is likewise bound by an acquittal.

In distinguishing Brown, the Cosgrove Court noted that it is

permissible for the Commonwealth to proceed to a probation violation

proceeding before it elects to try the defendant for the same conduct. If

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probation is revoked before the defendant is tried on the charges, “the ruling

of the probation judge that the defendant committed the criminal act does

not control the outcome of the guilt-determination process at trial” since the

defendant is presumed innocent before a trial. Id. at 1010. “A defendant

who has been found to be in violation of probation because of commission of

a subsequent criminal act is nevertheless entitled to a trial . . . There is no

application of the doctrine of collateral estoppel in such a situation because

the defendant enjoys the presumption of innocence at trial.” Id. at 1010-

1011.

The Cosgrove panel reasoned that “collateral estoppel should also not

apply when the outcome of a pre-trial revocation proceeding is adverse to

the Commonwealth and favorable to the defendant.” Id. at 1011. We

observed that the Commonwealth’s right to conduct a pre-trial revocation

hearing, as provided in the case law, “would be severely constrained if the

exercise of the right were subject to possible forfeiture of the ability to

prosecute defendant at trial.” Id.

This Court further observed that VOP hearings are “frequently held

without the benefit of preparation that precedes a criminal trial” and are

more informal than a trial so as to advance the interest of the purpose of a

VOP hearing, which is to determine whether probation has been effective in

rehabilitating the defendant. Id. Additionally, the function of a VOP hearing

is not “to serve as a final arbiter of an individual's guilt or innocence of

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criminal charges. It is only through a criminal trial at which the defendant is

presumed innocent and the Commonwealth bears the burden of proof of

guilt beyond a reasonable doubt that contested issues of criminal culpability

are determined with finality.” Id. In Cosgrove, we refused to transfer the

responsibility of determining guilt or innocence to a probation revocation

“setting that does not adhere to the procedural safeguards necessary for a

fair adjudication of guilt” since shifting that responsibility from a jury “would

result in a perversion of the criminal justice system.” Id.

In that decision, this Court articulated our cognizance that other state

and federal courts addressing the same issue had reached different

conclusions in connection with the identical issue. We specifically adopted

the reasoning employed by those decisions that permit “a criminal

prosecution to follow a revocation proceeding that resulted in an outcome

adverse to the Commonwealth [as] founded upon sound public policy.” Id.

This Court held “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.” Id.

Since our decision in Cosgrove, additional jurisdictions have adopted

the same precept that adjudications in the probation violation setting are not

given collateral estoppel effect for purposes of a criminal prosecution for the

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same conduct. In State v. Brunet, 806 A.2d 1007 (Vt. 2002), the

defendant was on probation for a domestic assault and was not permitted to

be in contact with the victim. He thereafter was charged with a new

domestic assault on the same victim in a criminal action as well as violating

his probation for committing that assault. The VOP hearing was held first,

and the VOP court concluded that the defendant had not assaulted the victim

a second time and had acted defensively when she happened to come into

the same bar where the defendant was located. It declined to revoke the

defendant’s probation.

The defendant thereafter was tried and convicted of assault. On

appeal, he claimed that collateral estoppel prevented his criminal trial in

that, at the VOP hearing, the Commonwealth had had a full and fair

opportunity to litigate the question of whether he had assaulted the victim at

the bar. The Brunet Court turned to “evaluation by other courts that have

considered the identical issue.” Id. at 1010. It observed, “Most have

concluded that probation revocation hearings are so fundamentally different

from criminal trials in their purpose and procedures that it would be unfair to

apply collateral estoppel in these circumstances.” Id.

The Vermont Supreme Court observed, that, in its state, the rules of

evidence and procedure vary between the VOP and criminal settings. It

noted that this variation is a result of the recognition that the purpose of the

VOP hearing is not to determine a defendant’s guilt or innocence of the

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underlying crime but, rather, to determine if probation has been an effective

alternative to incarceration. The Court opined, “Thus, it is universally

acknowledged that a revocation proceeding is not essentially ‘criminal’ in

nature, and that double jeopardy does not attach at a revocation hearing to

bar a trial of the new criminal charges.” Id. at 1011. Simply put, in a VOP

setting, the defendant has not been tried for the offense in question.

Instead, the defendant’s amenability to treatment was examined.

The Brunet Court also observed that the prosecution, in the VOP

setting, will ordinarily not prepare as fully as it does for a criminal trial,

given the lower standard of proof (preponderance of the evidence) and less

stringent rules of evidence and procedure. The prosecution, after the VOP

hearing, may have garnered additional evidence. Therefore, the Court

concluded, it would not be fair or sound public policy to apply collateral

estoppel after a VOP hearing. The Brunet Court additionally observed,

“Most courts have also concluded that applying collateral estoppel to bar a

criminal prosecution based upon an earlier probation-revocation decision

would undermine the interests of justice, and erode public confidence in the

criminal justice system.” Id.

The Supreme Court of Rhode Island, applying previous precedent,

likewise concluded that double jeopardy does not attach at a VOP hearing.

State v. Gautier, 871 A.2d 347 (R.I. 2005). The defendant therein

contended that he could not be prosecuted for a murder after a VOP court

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refused to revoke the defendant’s probation due to its specific finding that

the state had failed to establish that the defendant murdered the victim in

question. The defendant contended that the state could not prosecute him

on the murder charge since “relitigation of his criminal liability on that

charge would violate the prohibitions against double jeopardy as guaranteed

by the Fifth Amendment to the United States Constitution, and its state

counterpart[.]” Id. at 361. The Rhode Island Supreme Court rejected that

position, articulating that it was

settled law that double jeopardy does not operate to bar
prosecution of a defendant for criminal misconduct after the
state alleges that very same misconduct as a basis for a finding
of a violation of the defendant's preexisting probation. As this
Court previously established, a probation-revocation hearing is
considered a continuation of the original prosecution for which
probation was imposed—in which the sole purpose is to
determine whether a criminal defendant has breached a
condition of his existing probation, not to convict that individual
of a new criminal offense. Consequently, it is black letter law
that jeopardy does not attach to probation-revocation
proceedings, because these proceedings are not designed to
punish criminal defendants for violation of a criminal law.

Id. (citations and quotation marks omitted); See also, e.g., Jonas v.

Wainwright, 779 F.2d 1576, 1577 (11th Cir. 1986) (“double jeopardy

clause does not apply to parole revocation proceedings”); United States v.

Whitney, 649 F.2d 296, 298 (5th Cir. 1981) (“Double jeopardy of the Fifth

Amendment does not apply to parole and probation proceedings since they

are not designed to punish a criminal defendant for violation of a criminal

law. The purpose of parole and probation revocation proceedings is to

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determine whether a parolee or probationer has violated the conditions of

his parole or probation.”); In re Interest of Rebecca B., 783 N.W.2d 783,

789 (Neb. 2010) (“it is black letter law that double jeopardy is not implicated

by probation revocation proceedings”); People v. Hilton, 745 N.E.2d 381

(N.Y. 2000) (the finding at a probation revocation hearing that the

prosecution had failed to establish by a preponderance of the evidence that

defendant had violated his probation by sexually abusing a child did not

operate as collateral estoppel so as to bar prosecution of defendant for

sexual abuse based on charge arising from same incident); Duke v. State,

2 S.W.3d 512, 515-16 (Tex. Crim. App. 1999) (holding that double jeopardy

does not apply in a probation revocation hearing, which results in “neither a

conviction nor an acquittal,” but in “a finding on which the trial court can

then exercise its discretion by revoking or continuing probation”); State v.

Terry, 620 N.W.2d 217 (Wis.App. 2000) (rejecting defendant’s request to

overturn his conviction for possession of narcotics based upon the fact that,

during antecedent VOP proceedings, it was determined that the state did not

prove that he was in possession of the drugs).

Cosgrove is determinative of the issue presented herein. It is

grounded in strong public policy considerations. Moreover, a VOP

adjudication is not a determination of whether a defendant is guilty of the

crime in question; it is a decision as to whether the defendant’s conduct is

such that he should remain on probation. A defendant is not tried for the

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offense at issue in the criminal action for purposes of the VOP adjudication.

As noted, double jeopardy attaches when a jury is empaneled or a trial court

proceeds to here evidence at a nonjury trial. Neither event occurred at

Appellant’s VOP hearing. Hence, he will not be placed in jeopardy for that

offense twice when the prosecution proceeds to trial on the crime after a

VOP hearing.

Appellant maintains that the Brown decision and Commonwealth v.

Holder, 805 A.2d 499 (Pa. 2002) (OAJC), “compel the dismissal of the

instant prosecution.” Appellant’s brief at 13. We disagree. In Cosgrove,

we expressly distinguished Brown since the procedural posture of the case

was the converse of that involved therein. The Holder decision was a

plurality and involved an evidentiary matter. In Holder, the defendant was

on probation for an earlier crime. He was then accused of committing a rape

and other charges arising out of that incident. The Commonwealth

conducted his revocation hearing before trial. Holder attempted to introduce

into evidence facts that allegedly would have shown that the victim had

previously made a false rape allegation. The VOP court precluded admission

of that evidence based upon the Rape Shield Law. At trial, a different judge

ruled that the defendant was collaterally estopped from presenting the same

evidence based on the prior ruling. Writing for only two Justices, Justice

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Nigro agreed with the application of collateral estoppel as to the VOP

evidentiary ruling.2 That case is not precedential. Moreover, it does not

involve the issue presented herein, which is whether the Commonwealth can

proceed to trial on crimes when a VOP court has refused to revoke probation

based upon the defendant’s commission of the acts supporting the crimes.

Cosgrove directly addresses that contention.

Order affirmed. Jurisdiction relinquished. Case remanded.

Judge Donohue did not participate in the consideration of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2016

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2
Justice Zappala concurred in the result. Justice, now Chief Justice Saylor,
joined by Justices Castille and Newman, authored a concurring and
dissenting opinion. Justice Saylor concluded that the Commonwealth should
not be able to use collateral estoppel offensively, which is not the situation
herein.

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