J-S15006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VINCENT E. DAVENPORT                       :
                                               :
                       Appellant               :    No. 995 WDA 2019

          Appeal from the Judgment of Sentence Entered June 3, 2019
    In the Court of Common Pleas of Washington County Criminal Division at
                       No(s): CP-63-CR-0000697-2018


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                               FILED MAY 27, 2020

        Appellant, Vincent E. Davenport, appeals from the judgment of sentence

of an aggregate term of 18 to 36 months’ incarceration, imposed after a jury

convicted him of patronizing prostitutes (18 Pa.C.S. § 5902(e)) and simple

assault (18 Pa.C.S. § 2701(a)). We affirm.

        We need not reiterate the detailed factual summary provided by the trial

court in its Pa.R.A.P. 1925(a) opinion.            See Trial Court Opinion (TCO),

8/20/19, at 5-10. Procedurally, we only note that on July 16, 2017, Appellant

was charged with aggravated assault (18 Pa.C.S. § 2702(a)(1)), strangulation

(18 Pa.C.S. § 2718(a)(1)), terroristic threats (18 Pa.C.S. § 2706(a)(1)), and

patronizing prostitutes. Id. at 1. A preliminary hearing was held on July 26,

2017, at the close of which the charges of aggravated assault, strangulation,

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*   Former Justice specially assigned to the Superior Court.
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and terroristic threats were dismissed. Id. at 2. The charge of patronizing

prostitutes was held for court at docket number CP-63-CR-0001909-2017

(hereinafter “case 1909-2017”). Id.

      Pre-trial proceedings on that charge continued over the ensuing months,

and a jury trial was scheduled to commence the week of March 19, 2018. Id.

However, on March 16, 2018, the Commonwealth filed a petition to nolle

prosequi (hereinafter “nol pros”) the charge of patronizing prostitutes, stating

that it would be “refiling all charges.” Id. at 3. The court issued an order

granting the Commonwealth’s petition that same day, and the Commonwealth

immediately “filed another criminal complaint against Appellant[,] which

contained facts and charges identical to the initial complaint filed on July 16,

2017[,]” but for the addition of the charge of simple assault.      Id.   Those

charges were docketed at the present case number of CP-63-CR-0000697-

2018 (hereinafter “case 697-2018”). Id.

      Thereafter, Appellant filed a petition for writ of habeas corpus, averring

that the court’s granting the Commonwealth’s petition to nol pros the charge

in case 1909-2017 did not comply with 42 Pa.C.S. § 8932 because it was not

entered in open court. Thus, Appellant asked the court to dismiss the refiled

charges in the present case. On March 5, 2019, the court issued an order

denying Appellant’s petition. His jury trial commenced on March 12, 2019,

and, that same day, he was convicted of patronizing prostitutes and simple

assault, and acquitted of the remaining offenses. On June 3, 2019, the court

sentenced Appellant as stated supra.

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      Appellant filed a timely notice of appeal, and he complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. On August 20, 2019, the court filed its Rule 1925(a)

opinion. Herein, Appellant states three issues for our review:

      1. Whether the trial court erred in denying Appellant’s Petition for
      Writ of Habeas Corpus, which alleges that allowance of a [n]ol[]
      [p]ros[] by the Commonwealth violated … Appellant’s due process
      rights?

      2. Whether the Commonwealth’s refiling of the charges
      immediately after a [n]ol[] pros[] constituted an effort to harass
      … Appellant and/or was prejudicial to the rights of [Appellant]?

      3. Whether previous counsel was ineffective rising to the level of
      extraordinary circumstances where the ineffectiveness is apparent
      from the record and meritorious to the extent that immediate
      consideration best serves the interests of justice?

Appellant’s Brief at 7.

      Before examining Appellant’s issues, we address the Commonwealth’s

argument that we should dismiss his appeal because, in Appellant’s brief, he

states that he is appealing from the court’s March 5, 2019 order denying his

pre-trial petition for writ of habeas corpus, which is not an appealable order.

See Commonwealth’s Brief at 6-7; Appellant’s Brief at 5, Appendix A;

Commonwealth v. Yingling, 911 A.2d 572, 574 (Pa. Super. 2006) (“An

order denying pre-trial habeas corpus relief is not a final order but, rather, is

an interlocutory order and, thus, is not immediately appealable by right.”).

The Commonwealth contends that “Appellant’s failure to appeal the

[s]entencing [o]rder of June 3, 2019[,] should preclude him from any such




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appeal because the 30-day time[-]limitation for filing such an appeal has

lapsed.” Commonwealth’s Brief at 7.

      We disagree.   Appellant did not file his notice of appeal immediately

after the March 5, 2019 order denying his habeas petition but, instead, he

appealed following the imposition of his sentence. Furthermore, in Appellant’s

notice of appeal, he stated that he is appealing from his June 3, 2019

judgment of sentence. We recognize that Appellant also incorrectly stated in

his notice that he is appealing from the March 5, 2019 order denying his writ

of habeas corpus, and the March 12, 2019 jury verdict. Clearly, Appellant’s

notice of appeal should have only referred to his judgment of sentence. See

Pa.R.A.P. 904. However, while technically incorrect, we interpret Appellant’s

notice of appeal as conveying that he is appealing from his judgment of

sentence, and that he intends to challenge the court’s pre-trial order denying

his petition for writ of habeas corpus, as well as his convictions. Therefore,

we decline to dismiss his appeal.

      In Appellant’s first issue, he avers that the court erred by entering the

order granting the Commonwealth’s petition to nol pros the charge in case

1909-2017.    He insists that 42 Pa.C.S. § 8932 and Pennsylvania Rule of

Criminal Procedure 585 require a nol pros “to be entered in open court and

requires court approval.” Appellant’s Brief at 16, 17. Appellant maintains that

the court’s failure to decide the nol pros petition in open court deprived him

of “the opportunity to make statements on his behalf, or to object” to the

entry of the nol pros and, therefore, it was improper. Id. at 17.

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       The Commonwealth insists that Appellant has waived this issue for our

review because

       [t]he arguments … Appellant raises in his [b]rief regarding the
       [nol pros] should have been raised in a timely appeal of that March
       16, 2018 order which granted the [nol pros]. The failure of …
       Appellant to file a timely appeal [from] that order should act as
       waiver of any issues regarding that [nol pros]. To illustrate this
       point, in the case sub judice ([]697-2018), the Commonwealth
       never sought[,] nor did the [c]ourt grant[,] a [p]etition for [nol
       pros]. Yet … Appellant is attempting to argue issues regarding the
       [nol pros] order as if it was granted in []697-2018. This is a clear
       attempt to resurrect an issue which was never challenged with a
       timely appeal in the case in which the order was actually granted.

Commonwealth’s Brief at 7.

       We agree with the Commonwealth. The March 16, 2018 order granting

the   nol   pros   in   case    1909-2017      was   final   and   appealable.   See

Commonwealth v. Rega, 856 A.2d 1242, 1245 (Pa. Super. 2004). It is clear

that Appellant’s first issue directly and solely attacks the validity of that order.

However, the present appeal is not from that order, but from Appellant’s

judgment of sentence entered in his second, and completely separate, case

docketed at 697-2018. Therefore, Appellant’s attempt to challenge the March

16, 2018 order entered in case 1909-2017 is waived.1

       Regarding Appellant’s remaining two issues, we have reviewed the

certified record, the briefs of the parties, and the applicable case law. We

have also considered Judge Costanzo’s detailed analysis of these claims in her
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1Nevertheless, even if we could review Appellant’s challenges to that order,
we would discern no reversible error for the reasons set forth by the Honorable
Valarie Costanzo of the Court of Common Pleas of Washington County in her
Rule 1925(a) opinion. See TCO at 11-16.

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opinion.    See TCO at 11-22.           We conclude that Judge Costanzo’s well-

reasoned decision adequately addresses the arguments raised by Appellant

herein.2 Therefore, we adopt Judge Costanzo’s opinion as our own regarding

Appellant’s second and third issues, and we affirm Appellant’s judgment of

sentence for the reasons set forth therein.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2020




____________________________________________


2 We only add that we disagree with the Commonwealth’s claim that Appellant
waived his second issue by not appealing from the March 16, 2018 order
entered in case 1909-2017.        In that issue, Appellant challenges the
Commonwealth’s refiling of the charges in the present case, claiming that
the Commonwealth acted with the intent to harass him, and “clearly caused
him prejudice and unnecessary delay of the charges facing him.” Appellant’s
Brief at 20. Appellant preserved these claims in his pre-trial petition for writ
of habeas corpus and, therefore, his second issue is not waived for our review.


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