J-S22008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
       Appellee

                     v.

ROBERT ANTHONY KOLOVICH,

       Appellant                                    No. 1273 MDA 2016


                Appeal from the Order Entered June 30, 2016
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0002136-2014


BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 25, 2017

       Appellant, Robert Anthony Kolovich, appeals from the order entered

June 30, 2016, denying his motion to bar prosecution pursuant to the double

jeopardy clauses of the federal and state constitutions, and 18 Pa.C.S. §§

110 and 111. This case returns to us after we remanded to have the trial

court comply with Pa.R.Crim.P. 587(B) to clarify whether this Court has

appellate jurisdiction. We conclude that we have appellate jurisdiction and

affirm.

       The trial court summarized the factual background of this case as

follows:

             On April 30, 2014, [Appellant] was charged with one count
       [of] Deceptive or Fraudulent Business Practices (18 Pa.C.S.A. §
       4107 (a)(2)) and one count Theft by Deception-False Impression

*
    Retired Senior Judge assigned to the Superior Court.
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     (18 Pa.C.S.A. § 3922(a)(l)), both felonies of the third degree,1
     as a result of conduct alleged to have occurred between August
     28, 2013[,] and April 29, 2014[,] whereby [Appellant] allegedly
     obtained and withheld from the alleged victims an amount
     totaling $3,984.00 promising to purchase and install new
     windows for said individuals and failing to do so.2
          1
             [Appellant] also filed a Motion to Quash
          Information which was granted as to Count I of the
          Information, (Deceptive Business Practices), and
          denied as to Count II (Theft by Deception).
          2
            [Appellant] was also charged with two counts of
          Deceptive Business Practices and one count of Theft
          by Deception to Luzerne County Case Number 2941 -
          2014 involving a different victim. A Motion to Bar
          Prosecution Pursuant to the Double Jeopardy Clause
          was also filed in that case. Said motion was likewise
          denied on June 30, 2016 but was not appealed.

           On June 18, 2014[,] and July 9, 2014[, Appellant] was
     similarly charged in Centre County with Home Improvement
     Fraud, Theft by Deception, and Deceptive Business Practices.3
     Centre County defense counsel filed a Motion for Compulsory
     Joinder of Criminal Cases in Lycoming, Tioga, Susquehanna,
     Snyder, Northumberland, York, Bradford, Union, Luzerne, Mifflin
     and Dauphin [C]ounties to prevent a violation of [Appellant’s]
     Double Jeopardy Protection under the 5th and 14th Amendments
     of both the State and Federal Constitutions.         [Appellant’s]
     motion was denied and [Appellant] was found not guilty on all
     charges after a jury trial. In addition, after being charged with
     similar offenses in Sullivan County, all charges were dismissed
     on March 5, 2015[,] pursuant to Pa.R.Crim.P. 586.4
          3
            Centre County Information CP-14-CR-1249-2014
          and CP-14-CR-1295-2015.
          4
            “When a defendant is charged with an offense
          which is not alleged to have been committed by force
          or violence or threat thereof, the court may order
          the case to be dismissed upon motion and a showing
          that: (1) the public interest will not be adversely
          affected and (2) the attorney for the Commonwealth
          consents to the dismissal; and (3) satisfaction has


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            been made to the aggrieved person or there is an
            agreement that satisfaction will be made to the
            aggrieved person; and (4) there is an agreement as
            to who shall pay the costs.”

Trial Court Opinion, 9/29/16, at 1-2.

      Appellant filed a motion to bar prosecution pursuant to the double

jeopardy clauses and 18 Pa.C.S. §§ 110 and 111 on August 12, 2015.

Appellant’s motion was denied by order entered June 30, 2016. Appellant

filed a notice of appeal on July 25, 2016.       Appellant and the trial court

complied with Pa.R.A.P. 1925.

      On May 11, 2017, this Court filed a memorandum that remanded this

matter to have the trial court comply with Pa.R.Crim.P. 587(B) and file a

supplemental Pa.R.A.P. 1925(a) opinion.        Commonwealth v. Kolovich,

___ A.3d ___, 1273 MDA 2016 (Pa. Super. filed May 11, 2017) (unpublished

memorandum). On June 30, 2017, the trial court filed a “Findings of Fact,

Conclusions of Law, and Supplemental Opinion” in accordance with our

directive, and specifically determined “that [Appellant’s] Motion to Bar

Prosecution was non-frivolous.”      Findings of Fact, Conclusions of Law, and

Supplemental Opinion, 6/30/17, at 1-3. In addition, the June 30, 2017 filing

advised Appellant that the denial of his motion was immediately appealable

as a collateral order.   Id. at 3.    We are satisfied that the trial court has

fulfilled our prior mandate to comply with Pa.R.Crim.P. 587(B), and we have

jurisdiction to entertain Appellant’s appeal.       See Commonwealth v.

Taylor, 120 A.3d 1017, 1021 (Pa. Super. 2015) (“orders denying a


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defendant’s motion to dismiss on double jeopardy grounds are appealable as

collateral orders, so long as the motion is not found to be frivolous.”).

      Appellant presents the following issues for our review:

      1.    Did the trial court err, as a matter of law, in denying
      [Appellant’s] Motion to bar prosecution pursuant to the Double
      Jeopardy Clause (state and federal) with respect to Count 2 of
      the Information?

      2.    Did the trial court err, as a matter of law, in denying
      [Appellant’s] Motion to bar prosecution pursuant to 18 Pa.C.S.
      Section 110 and 111 with respect to Count 2 of the Information?

Appellant’s Brief at 3.

      We set forth our well-settled standard of review: “An appeal grounded

in double jeopardy raises a question of constitutional law.       This [C]ourt’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. Vargas, 947 A.2d 777, 780 (Pa.

Super. 2008) (citations and quotations omitted); see also Commonwealth

v. Simmer, 814 A.2d 696, 698 (Pa. Super. 2002) (Our review is plenary

when the issue is whether the compulsory joinder rule, 18 Pa.C.S. § 110,

bars cases.).

      In his first issue, Appellant argues that the trial court erred in denying

his motion to bar prosecution pursuant to the double jeopardy clause (state

and federal) with respect to Count 2 of the Information. Appellant’s Brief at

8. In support of his claim, Appellant cites to Commonwealth v. Calloway,

675 A.2d 743 (Pa. Super. 1996), asserting the following:


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            There are three (3) relevant inquiries with respect to
      Double Jeopardy. Firstly, whether or not the prosecution which
      is proposed involves the same conduct for which the defendant
      was prosecuted by the other jurisdiction. It is contended that in
      the present case, the answer to this inquiry must be yes, i.e.[] a
      pattern of contractor fraud. Accordingly, the Government must
      then establish both:

            2) that each prosecution requires proof of a fact not
      required by the other,

            and

            3) the law defining the offense is designed to prevent a
      substantially different harm or evil from the law defining the
      other jurisdiction’s offense.

      Commonwealth vs. Calloway, 450 Pa. Super. 227, 675 A.2d
      743 (1996).

Appellant’s Brief at 9 (emphasis in original). Appellant further asserts that

“[i]t cannot be reasonably argued that a different harm or evil is involved.

Therefore, pursuing the      present charge   violates [Appellant’s] double

jeopardy protections.” Id.

      We begin by noting that Calloway does not support the proposition

for which Appellant cites it.   While Appellant posits that the elements set

forth by Calloway are relevant to an analysis of the constitutional double

jeopardy provisions, Appellant’s Brief at 8-10, review of that case reflects

that the elements and discussion set forth by the Calloway Court were

undertaken in the context of analyzing 18 Pa.C.S. § 111.      Calloway, 675

A.2d at 747-748.




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      Moreover, as a result of Appellant’s argument under this section of his

brief consisting only of his assertions related to Calloway, Appellant’s Brief

at 8-10, Appellant fails to develop any analysis in support of his

constitutional claim. Where an appellant sets forth no argument in support

of his claim, the claim is waived. See Commonwealth v. Woodard, 129

A.3d 480, 502 (Pa. 2015), cert. denied, 137 S. Ct. 92 (2016) (citing Wirth

v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014)) (holding “where an

appellate brief fails to ... develop an issue in any other meaningful fashion

capable of review, that claim is waived.      It is not the obligation of an

appellate   court   to   formulate   appellant’s   arguments     for   him.”);

Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (Where an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.). Accordingly, we decline to

address Appellant’s constitutional claims for lack of development.

      In his second issue, Appellant argues that the trial court erred in

denying his motion to bar prosecution pursuant to 18 Pa.C.S. §§ 110 and

111 with respect to Count 2 of the Information.      Appellant’s Brief at 11.

Appellant cites case law related to a claim made pursuant to Section 110.




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Id. at 12.1      Additionally, Appellant posits that Section 110 “expressly

prohibits a second prosecution which arose from the same criminal episode

as a former prosecution.”      Id.    Although Appellant additionally sets forth

case law defining a single criminal episode, id. at 12-13, he fails, however,

to present any argument related to the facts of this case and why his actions

did or did not constitute a single criminal episode.             Id. at 11-13.

Additionally, Appellant makes cursory reference to prong four of the

compulsory joinder test by stating simply: “The element regarding judicial

district is defined in Cadora.       Commonwealth v. Cadora, 703 A.2d 711

(Pa.Super. 1975).     The fact that the charges arose in different counties is

not determinative.” Id.

        “[I]t is an appellant’s duty to present arguments that are sufficiently

developed for our review. The brief must support the claims with pertinent

discussion, with references to the record and with citations to legal


1
    As explained by our Supreme Court:

        The compulsory joinder rule bars a subsequent prosecution if
        each prong of the following test is met:          (1) the former
        prosecution resulted in an acquittal or conviction; (2) the current
        prosecution was based on the same criminal conduct or arose
        from the same criminal episode; (3) the prosecutor in the
        subsequent trial was aware of the charges before the first trial;
        and (4) all charges were within the same judicial district as the
        former prosecution.

Commonwealth v. Nolan, 855 A.2d 834, 839 (Pa. 2004) (footnote and

citations omitted).



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authorities.”    Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super.

2010) (quoting Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.

2007) (internal citations omitted)); Pa.R.A.P. 2119. As this Court has made

clear, we “will not act as counsel and will not develop arguments on behalf of

an appellant.” Kane, 10 A.3d at 331. Where defects in a brief “impede our

ability to conduct meaningful appellate review, we may dismiss the appeal

entirely or find certain issues to be waived.” Id.; Pa.R.A.P. 2101.

         Herein, Appellant fails to develop any argument supporting his second

issue.     Specifically, Appellant does not discuss the facts of this case or

provide citation to the record. Appellant’s failure to adhere to the Rules of

Appellate Procedure and to develop his claim prevents this Court from

conducting meaningful appellate review. Therefore, we conclude Appellant

has waived this issue.     See Commonwealth v. Perez, 93 A.3d 829, 838

(Pa. 2014) (claims failing to contain developed argument or citation to

supporting authorities and record are waived).2




2
  Assuming arguendo that Appellant’s claims were not waived for failure to
develop them, we would determine that they lack merit for the reasons set
forth by the trial court in its September 29, 2016 opinion. In the event of
further proceedings, the parties shall attach a copy of the September 29,
2016 trial court opinion to any filings.


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J-S22008-17


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/25/2017




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