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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY MARK DUNBAR :
:
Appellant : No. 1158 MDA 2023
Appeal from the Order Entered July 26, 2023
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000873-2020
MEMORANDUM PER CURIAM.: FILED: MARCH 13, 2024
Appellant, Gregory Mark Dunbar, appeals, pro se, from the July 26, 2023
order denying his June 2, 2023 motion seeking to dismiss a prosecution
against him on double jeopardy grounds. Also before this Court is an
“Application for Relief and Writ of Habeas Corpus Relief” (Application) filed in
this Court on September 5, 2023. We affirm the July 26, 2023 order and
dismiss the Application.
Our review of the record reveals that, on December 2, 2019, a criminal
complaint was filed charging Appellant with nine counts of retaliation against
prosecutor or judicial official1 and one count of barratry2 related, inter alia, to
his filing of private criminal complaints with the Dauphin County District
Attorney’s Office against nine Commonwealth Court judges based upon his
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1 18 Pa.C.S. § 4953.1(a).
2 18 Pa.C.S. § 5109.
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disagreement with a ruling by that court. Following a preliminary hearing
before a magisterial district judge on February 3, 2020, the charges were
dismissed. The Commonwealth then refiled the charges on February 10,
2021. A preliminary hearing was held on February 21, 2020 before the
president judge of the trial court, and the charges were bound over for trial.
Appellant has filed numerous motions in the trial court,3 including the
June 2, 2023 “Motion to Dismiss/Motion to Strike for Want of Subject Matter
Jurisdiction/Double Jeopardy” at issue in this appeal. On July 26, 2023, the
trial court filed an order denying this motion. Appellant filed a timely appeal
from the trial court’s order.
Appellant raises the following issue on appeal:
Do[es] jeopardy attach to bad faith and prosecutor overreaching
conduct and indirect contempt of a valid Pa.R.Crim.P. rule 543
discharge from custody order in same case, by a member of the
Unified Judicial System?
Appellant’s Brief at 4. As best can be discerned, Appellant argues that his
double jeopardy rights were violated when the charges against him were
dismissed by a magisterial district judge after the February 3, 2020
preliminary hearing and Appellant was then discharged pursuant to
Pa.R.Crim.P. 543(B). Appellant contends that the Commonwealth did not
comply with Pa.R.Crim.P. 544 and Pa.R.Crim.P. 132 when it then brought the
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3 According to the trial court, Appellant had filed 34 motions as of the date
that the Pa.R.A.P. 1925(a) opinion was prepared. Trial Court Opinion,
10/3/23, at 1.
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charges before the president judge of the trial court without filing a motion to
allow a different issuing authority to conduct the preliminary hearing.
Prior to reaching the merits of Appellant’s argument, we first must
address the appealability of the July 26, 2023 order. Both the trial court and
the Commonwealth maintain that this order is a non-final, interlocutory order,
which was not appealable as of right and which could not otherwise be
appealed because permission was not sought from the trial court or this
Court.4 Trial Court Opinion, 10/3/23, at 1-2; Commonwealth’s Brief at 4-6;
see also 42 Pa.C.S. § 702(b); Pa.R.A.P. 311, 312, 341, 1311. Therefore, the
lower court and Commonwealth request that this appeal be dismissed or
quashed. Trial Court Opinion, 10/3/23, at 2; Commonwealth’s Brief at 6.
While the trial court and Commonwealth are correct that the July 26,
2023 order is not final and would not be appealable as an interlocutory order
by right or by permission, an order denying a pre-trial motion to dismiss on
double jeopardy grounds that makes no finding that the motion is frivolous is
immediately appealable as a collateral order. See Commonwealth v. Gross,
232 A.3d 819, 833 (Pa. Super. 2020) (en banc); Pa.R.A.P. 313, Comment;
see also Commonwealth v. Davis, 242 A.3d 923, 928-29 (Pa. Super. 2020)
(order denying motion to dismiss based upon Commonwealth’s alleged
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4 The trial court noted in its opinion that Appellant’s jury trial on the
aforementioned charges was scheduled to begin on October 30, 2023, but was
continued pending the resolution of this appeal. Trial Court Opinion, 10/3/23,
at 1.
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violation of Pa.R.Crim.P. 544 when refiling charges, which implicates double
jeopardy principles, was a collateral order appealable under Pa.R.A.P. 313).
Here, the trial court did not make a finding that Appellant’s June 2, 2023
motion to dismiss was frivolous and therefore this appeal is properly before
this Court as taken from a collateral order.5 However, although Appellant
raised additional grounds for seeking the dismissal of the charges against him
in his June 2, 2023 motion—including absence of jurisdiction, res judicata, and
violation of his due process rights—we do not address these other grounds as
we discern no separate basis for finding that the lower court’s July 26, 2023
order was immediately appealable.
An appeal based on double jeopardy grounds presents a question of
constitutional law. Gross, 232 A.3d at 835; Commonwealth v. Byrd, 209
A.3d 351, 353 (Pa. Super. 2019). Accordingly, our standard of review is de
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5 We note that no hearing was held on Appellant’s June 2, 2023 motion,
notwithstanding the requirement of Pennsylvania Rule of Criminal Procedure
587 that the trial court schedule a hearing on any motion to dismiss on double
jeopardy grounds and make findings of fact at the conclusion of the hearing
concerning the double jeopardy claim. Pa.R.Crim.P. 587(b)(2)-(3). While the
trial court did not comply with this procedure, Appellant did not raise non-
compliance with the Rule 587 procedure in the trial court or in this appeal,
and therefore the issue is waived. Gross, 232 A.3d at 833 n.1; Pa.R.A.P.
302(a). In any event, we would find that Appellant was not prejudiced by the
failure to comply with Rule 587 as Appellant raised his argument regarding
the alleged improper procedure concerning the refiling of the charges against
him in multiple prior motions under multiple different legal theories, and the
trial court had addressed the issue at several prior hearings and in an earlier
order. Order, 5/15/23; N.T., 2/21/20, at 3-6; N.T., 11/12/20, at 6-10; N.T.,
1/25/21, 2-6; N.T., 11/15/21, at 3-7; N.T., 8/29/22, at 18-22.
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novo, and our scope of review is plenary. Gross, 232 A.3d at 835; Byrd, 209
A.3d at 353.
“The Double Jeopardy Clauses of the Fifth Amendment to the United
States Constitution and Article 1, § 10 of the Pennsylvania Constitution protect
a defendant from repeated criminal prosecutions for the same offense.” Byrd,
209 A.3d at 353 (citation omitted). “At the heart of double jeopardy
jurisprudence is the requirement that an individual demonstrate he has been
subjected to the risk of a trial on the merits.” Commonwealth v. Martin,
97 A.3d 363, 365 (Pa. Super. 2014) (citation omitted) (cleaned up).
“Under Pennsylvania law, jeopardy attaches when the jury is sworn or,
in a bench trial, when the trial court begins to hear evidence.”
Commonwealth v. Jones, 676 A.2d 251, 253 (Pa. Super. 1996); see also
Martin, 97 A.3d at 365. Our Supreme Court has explained that “[d]ismissal
of charges and discharge of the accused for failure to establish a prima facie
case at the preliminary hearing is an interlocutory order, which does not
implicate double jeopardy concerns.” Commonwealth v. McClelland, 233
A.3d 717, 736 n.11 (Pa. 2020) (citing Commonwealth v. La Belle, 612 A.2d
418, 420 (Pa. 1992), and Liciaga v. Court of Common Pleas of Lehigh
County, 566 A.2d 246, 249-50 (Pa. 1989)); see also Commonwealth v.
Burke, 261 A.3d 548, 551 (Pa. Super. 2021)).
Therefore, the Commonwealth’s decision to refile charges against
Appellant on February 10, 2021, after the dismissal of those charges one week
prior did not implicate Appellant’s due process rights. See McClelland, 233
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A.3d at 736 n.11 (upholding order “discharg[ing] appellant without prejudice
to the Commonwealth to refile charges and proceed with a new preliminary
hearing”); accord La Belle, 612 A.2d at 420; Liciaga, 566 A.2d at 249-50.
Refiling was permitted regardless of whether the Commonwealth presented
new evidence at the second preliminary hearing. Commonwealth v.
Pettersen, 49 A.3d 903, 910 (Pa. Super. 2012); Commonwealth v. Carbo,
822 A.2d 60, 67 (Pa. Super. 2003) (en banc), abrogated on other grounds
by Commonwealth v. Dantzler, 135 A.3d 1109 (Pa. Super. 2016) (en
banc). We additionally note that the refiling against Appellant does not run
afoul of the statute of limitations applicable to Appellant’s offenses.
Pettersen, 49 A.3d at 910 (refiling of charges must be done prior to
expiration of statute of limitations); 42 Pa.C.S. § 5552(a) (offenses at issue
are subject to general rule that prosecution must be commenced within two
years after they were committed); Criminal Complaint, 2/10/20 (stating that
charges related to conduct occurring between September 3, 2019, and
February 5, 2020); Information, 9/1/20 (same).
In Davis, this Court observed that the failure to comply with Rule of
Criminal Procedure 544, which sets forth the procedure for reinstituting
charges following withdrawal or dismissal, may implicate double jeopardy
principles and provide a basis for relief in the form of dismissal of refiled
charges. Davis, 242 A.3d at 928-29. Pursuant to Rule 544, the
Commonwealth may reinstitute charges before the same issuing authority
who the charges were before initially or file a motion with the president judge
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of the judicial district requesting that a different issuing authority be assigned
for a new preliminary hearing. Pa.R.Crim.P. 544; see also Pa.R.Crim.P. 132
(procedure for temporary assignment of issuing authorities). Here, the second
preliminary hearing occurred before the president judge of the trial court
rather than the magisterial district judge who presided over the first
preliminary hearing, Davis, 242 A.3d at 931-34 (stating that an “issuing
authority” under Rule 544 refers to the specific magistrate who dismissed or
permitted the withdrawal of the charges or conducted a preliminary hearing),
and the record does not indicate that the Commonwealth filed a motion
requesting the reassignment. Id. at 934 (filing of criminal complaint before
different magisterial district judge than who had originally dismissed charges
without seeking reassignment under Rule 544(B) violated the rule).
However, even assuming a violation of Rule 544, Appellant is not
entitled to relief. A defendant will only be entitled to relief based upon a
violation of Rule 544 if
he challenges the re-filing of previously dismissed charges before
the conclusion of the trial and when: 1) the re-filing of charges
occurs after the expiration of the statute of limitations; or 2) when
the re-filing of charges constitutes an effort to harass the
defendant; or 3) where the re-filing of charges is prejudicial to the
rights of the defendant.
Id. at 934 (quoting Pettersen, 49 A.3d at 911) (cleaned up). As discussed
above, the charges were refiled prior to the expiration of the applicable statute
of limitations. Furthermore, Appellant has failed to demonstrate that the
refiling of charges here prejudiced him. Appellant’s only assertion of any
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prejudice relates to the fact that the affidavit of probable cause supporting the
original complaint incorrectly stated that prison authorities found Appellant to
be in possession of pornography and he was punished therefor by the
Department of Corrections.6 Petition for Appointment of New Counsel and
Motion to Dismiss, 6/9/20, Exhibit 1 (Dec. 2, 2019 Affidavit of Probable
Cause). The attesting officer explained at the February 21, 2020 preliminary
hearing that this information was discovered to be erroneous and corrected
prior to the first preliminary hearing on February 3, 2020. N.T., 2/21/20, at
25-26. Thus, this incorrect assertion that Appellant possessed pornography—
which is of minimal, if any, relevance to the issue of whether the
Commonwealth presented prima facie evidence that Appellant committed the
offenses of retaliation against prosecutor or judicial official and barratry—did
not play a role in either of Appellant’s preliminary hearings. Finally, beyond
Appellant’s bald claim that the Commonwealth “harass[ed]” him by refiling
the charges, Appellant’s Brief at 7, Appellant has not presented any basis for
this Court to conclude that the Commonwealth’s actions here were intended
to harass him or had an effect of harassment. Therefore, we cannot find that
Appellant would be entitled to relief based upon a violation of Rule 544.
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6 In the ruling that allegedly led to Appellant submitting the private criminal
complaints against the Commonwealth Court judges, that court dismissed
Appellant’s petition for review challenging the Department of Corrections’
regulation prohibiting inmates from possessing materials containing nudity
and sexually explicit content. Dunbar v. Wetzel, No. 484 M.D. 2018 (Pa.
Cmwlth., filed July 10, 2019) (per curiam memorandum opinion).
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Finally, we dismiss the Application pending in this Court as Appellant
simply reiterates in it his challenge to the Commonwealth’s refiling the charges
against him, which we have addressed supra. Furthermore, to the extent he
pleads a writ of habeas corpus in the Application, he may not initiate such an
action in this Court. See Pa.R.Crim.P. 108 (discussing proper venue for a
petition for writ of habeas corpus).
Order affirmed. Application dismissed. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 03/13/2024
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