J-S56011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DERRICK EDWARDS                          :
                                          :
                    Appellant             :   No. 3429 EDA 2018

             Appeal from the Order Entered September 11, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002611-2013,
            CP-51-CR-0002614-2013, CP-51-CR-0002617-2013,
            CP-51-CR-0002815-2013, CP-51-CR-0002820-2013,
            CP-51-CR-0002853-2013, CP-51-CR-0002862-2013,
                           CP-51-CR-0002864-2013


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED JULY 29, 2020

      Derrick Edwards appeals from the order entered in the Philadelphia

County Court of Common Pleas denying his motion to dismiss based on double

jeopardy grounds. After careful review, we affirm.

      In 2012, Edwards, along with two co-conspirators, drove around

Philadelphia robbing victims at gunpoint. During one of the robberies, Edwards

shot the victim twice. Edwards was charged with various crimes related to

these events at eight separate docket numbers. The eight cases proceeded to

a consolidated trial.

      After a jury trial, Edwards was convicted of eight counts each of robbery,

conspiracy to commit robbery, carrying firearms without a license, carrying
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firearms on the public streets of Philadelphia, and possessing an instrument

of crime, and one count each of attempted murder, aggravated assault, and

conspiracy to commit aggravated assault. Edwards was sentenced to an

aggregate term of twenty-two to forty-four years’ incarceration.

      In Edwards’ direct appeal, involving all eight lower-court docket

numbers, he raised a challenge pursuant to Batson v. Kentucky, 476 U.S.

79 (1986), based on the Commonwealth’s use of its peremptory challenges to

strike African-Americans from the jury. This Court concluded that Edwards

demonstrated a Batson violation by showing the Commonwealth struck at

least one juror with discriminatory intent. See Commonwealth v. Edwards,

177 A.3d 963 (Pa. Super. 2018). We therefore vacated Edwards’ judgment of

sentence and remanded the case for a new trial. See id. at 979.

      Edwards filed a motion to dismiss arguing retrial was barred on double

jeopardy grounds. The trial court entered a single order denying the motion

as to all eight docket numbers. On September 27, 2018, Edwards filed an

interlocutory appeal by filing eight notices of appeal at each docket number,

each with a different time stamp, and each listing all eight trial court docket

numbers.

      In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme

Court held that “where a single order resolves issues arising on more than one

docket, separate notices of appeal must be filed for each case.” Id. at 971.




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“The failure to do so requires the appellate court to quash the appeal.” Id. at

976-977; see also Pa.R.A.P. 341, Official Note.

      A divided three-judge panel of this Court then filed a published opinion

in Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019), construing

Walker to mean that “we may not accept a notice of appeal listing multiple

docket numbers, even if those notices are included in the records of each

case.” Creese, 216 A.3d at 1144. Instead, the panel concluded “a notice of

appeal may contain only one docket number.” Id. (emphasis added). The

panel quashed the appeal. Neither party filed a petition for allowance of appeal

with the Supreme Court, rendering Creese a final disposition and setting

precedent in this Court.

      Our Court recently granted en banc review to decide whether Walker

and Rule 341 dictate that only one number may appear on a notice of appeal.

In an opinion filed in July 2020, this Court expressly overruled Creese’s

determination that “a notice of appeal may contain only one docket number.”

Commonwealth v. Johnson, ___ A.3d.___ (Pa. Super. 2020) at *___. As a

result, the fact that Edwards’ notice of appeal contained more than one

number is of no consequence.

      We observed that Rule 341 and Walker make no mention of case

numbers on a notice of appeal. See id. To be sure, the error in Walker was

the filing of a single notice of appeal affecting multiple cases and several

defendants. The bright-line rule set forth in Walker only required an appellant


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to file a “separate” notice of appeal for each lower court docket the appellant

was challenging.

      Here, it appears Edwards filed a separate notice of appeal for each of

the eight dockets below, because all eight notices have different time stamps.

The fact that the notices contained all eight lower court numbers is of no

consequence. Indeed, the Rules of Appellate Procedure are to be liberally

construed to effectuate justice. Pa.R.A.P. 105(a); see also 1 Pa.C.S.A. §

1928(c). We should not invalidate an otherwise timely appeal based on the

inclusion of multiple docket numbers, a practice that the Rules themselves do

not expressly forbid. Therefore, we decline to quash this appeal and will review

the merits of Edwards’ claim.

      Before we may address the merits, we must determine whether we have

jurisdiction over this appeal. Instantly, Edwards claims jurisdiction properly

lies in this Court pursuant to Pa.R.A.P. 311, relating to interlocutory appeals

as of right. The only section of Rule 311 that may be relevant here provides

in pertinent part:

      (a) General rule. An appeal may be taken as of right and without
      reference to Pa.R.A.P. 341(c) from:

            ....

            (6) New trials. An order in a civil action or proceeding
            awarding a new trial, or an order in a criminal proceeding
            awarding a new trial where the defendant claims that the
            proper disposition of the matter would be an absolute
            discharge or where the Commonwealth claims that the lower
            court committed an error of law.


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Pa.R.A.P. 311(a)(6). However, Edwards does not appeal the order granting a

new trial, but rather an order denying his pretrial motion to dismiss a new trial

on double jeopardy grounds. As no other section applies to the instant

situation, Rule 311 is inapplicable here, and as a result, we cannot exercise

jurisdiction on that basis.

      Nevertheless, we may be able to exercise jurisdiction over this appeal

to the extent the order denying Edward’s pretrial motion to dismiss qualifies

as a collateral order under Pa.R.A.P. 313, which provides in part:

      A collateral order is an order separable from and collateral to the
      main cause of action where the right involved is too important to
      be denied review and the question presented is such that if review
      is postponed until final judgment in the case, the claim will be
      irreparably lost.

Pa.R.A.P. 313(b).

      Our Supreme Court has specifically held that orders denying a

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. See

Commonwealth v. Orie, 22 A.3d 1021, 1024 (Pa. 2011); see also

Commonwealth v. Brady, 508 A.2d 286, 291 (Pa. 1986); see also Rule

313, Comment (specifically citing an order denying a pretrial motion to dismiss

on double jeopardy grounds as an example of a collateral order).

      Further, in a recently filed en banc opinion, this Court reaffirmed the

proposition that an order denying a double jeopardy motion, which makes no

finding that the motion is frivolous, is a collateral order under Rule 313 and


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immediately appealable. See Commonwealth v. Gross, ___ A.3d.___, 375

EDA 2016 (Pa. Super. 2020) at *9. Thus, this appeal is properly before us for

review.1

       On appeal, Edwards contends a new trial is barred on double jeopardy

grounds.

       An 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[.]
       To the extent that the factual findings of the trial court impact its
       double jeopardy ruling, we apply a more deferential standard of
       review to those findings:

       Where issues of credibility and weight of the evidence are
       concerned, it is not the function of the appellate court to substitute
       its judgment based on a cold record for that of the trial court. The
____________________________________________


1 After the decision in Orie, Pa.R.Crim.P. 587 was amended, effective July 4,
2013, to govern the procedure for addressing a double jeopardy motion to
dismiss. It is clear from a review of the record that the trial court failed to
comply with the terms of Rule 587 in denying Edwards’ motion to dismiss on
the basis of double jeopardy. The trial court erred in failing to enter a
statement of findings of fact and conclusions of law on the record, in failing to
enter a specific finding on the record as to frivolousness and in failing to advise
Edwards of his appellate rights. See Pa.R.Crim.P. 587(B)(3)-(6). However,
this Court has recently concluded that Rule 587 only governs the trial court’s
procedure, and does not govern or control appellate jurisdiction. See Gross,
at *32, n.1.

Accordingly, Edwards could have appealed on the basis that the trial court
failed to follow the dictates of Rule 587. However, Edwards did not raise this
issue on appeal and this procedural rule violation is not an issue which we
may raise sua sponte. See Commonwealth v. Colavita, 993 A.2d 874, 891
(Pa. 2010) (holding that, generally, “[w]here the parties fail to preserve an
issue for appeal, the Superior Court may not address that issue sua sponte”)
(quotations and citations omitted); see also In re Estate of Tscherneff,
203 A.3d 1020, 1027 (Pa. Super. 2019) (noting that there are only “a few
discrete, limited non-jurisdictional issues that courts may raise sua sponte”).

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       weight to be accorded conflicting evidence is exclusively for the
       fact finder, whose findings will not be disturbed on appeal if they
       are supported by the record.

Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015) (citation

omitted).

       The Double Jeopardy Clauses of the Fifth Amendment to the United

States Constitution and Article 1, § 10 of the Pennsylvania Constitution

prohibit retrial where prosecutorial misconduct during trial provokes a criminal

defendant into moving for a mistrial. See Oregon v. Kennedy, 456 U.S. 667,

679 (1982); see also Commonwealth v. Simons, 522 A.2d 537, 540 (Pa.

1987). However, Article 1, § 10 of the Pennsylvania Constitution offers

broader protection than its federal counterpart in that

       the double jeopardy clause of the Pennsylvania Constitution
       prohibits retrial of a defendant not only when prosecutorial
       misconduct is intended to provoke the defendant into moving for
       a mistrial, but also when the conduct of the prosecutor is
       intentionally undertaken to prejudice the defendant to the point
       of the denial of a fair trial.

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). Our Supreme

Court has recently held that in addition to the behavior described in Smith,

prosecutorial overreaching2 sufficient to invoke double jeopardy protections

____________________________________________


2 Prior to Kennedy, the limiting principle was expressed in terms of
prosecutorial overreaching – that is, misconduct intended to provoke a
defense motion for a mistrial or actions otherwise taken in bad faith to harass
or unfairly prejudice the defendant. See Lee v. United States, 432 U.S. 23,
34 (1977); see also Commonwealth v. Starks, 416 A.2d 498, 500 (Pa.
1980).



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under Article 1, § 10 of the Pennsylvania Constitution includes reckless

misconduct which deprives the defendant of a fair trial. See Commonwealth

v. Johnson, ___ A.3d.___, 40 EAP 2018 (Pa., filed May 19, 2020) (“Johnson

(Pa.)”). Therefore, the type of misconduct which qualifies as overreaching

under our state constitution encompasses governmental errors that occur

absent a specific intent to deny a defendant his constitutional rights. See id.

       Edwards argues a retrial is barred on double jeopardy grounds because

the Commonwealth’s Batson violation served no other purpose than to



____________________________________________




In Kennedy, the United States Supreme Court disapproved further use of the
“overreaching” test, and instead held the Fifth Amendment immunizes the
defendant from retrial only where the government’s actions were “intended to
‘goad’ the defendant into moving for a mistrial.” Id. at 675-676. In Simons,
the Pennsylvania Supreme Court adopted the Kennedy rule, and found
double jeopardy only attached to those mistrials which had been intentionally
caused by prosecutorial misconduct. Simons, 522 A.2d at 540.

Subsequently, in Smith, our Supreme Court construed Pennsylvania’s double-
jeopardy provision as supplying broader protections than its federal
counterpart, and returned to the pre-Kennedy “overreaching” test. Smith
was grounded on the distinction between mere error and overreaching, as set
forth in Starks. See Smith, 615 A.2d at 324. Starks conveyed that, whereas
prosecutorial errors are an “inevitable part of the trial process,” prosecutorial
overreaching is not. Starks, 416 A.2d at 500.

Our Supreme Court has concluded that although it departed from the Fifth
Amendment in the wake of the Kennedy decision, it never disavowed the
“overreaching” prerequisite, which is firmly entrenched in case precedent both
pre- and post-Kennedy. See Commonwealth v. Johnson, ___ A.3d ___,
40 EAP 2018, (Pa., filed May 19, 2020).




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deprive him of a fair trial and subvert the truth determining process. See

Appellant’s Brief, at 7. Edwards acknowledges that we are bound by our

precedent in Commonwealth v. Basemore, 875 A.2d 350 (Pa. Super.

2005), in which we held that a Batson violation does not per se bar retrial on

double jeopardy grounds, but requests that we revisit the dissent in

Basemore in order to reconsider our previous holding.

      We note that the Supreme Court of Pennsylvania has held that a

prosecutor’s reckless disregard of the constitutional rights of the defendant

can raise double jeopardy concerns under the Pennsylvania Constitution. See

Johnson (Pa.). Therefore, at least some of the reasoning employed in

Basemore is no longer valid. See Basemore, 875 A.2d at 356.

      However, the Pennsylvania Supreme Court has not addressed the

overarching holding from Basemore, that “nowhere in the approximately

twenty years of Batson jurisprudence has there been any suggestion that a

Batson violation so subverts the truth seeking process as to implicate double

jeopardy concerns.” Basemore, 875 A.2d at 357. As this reasoning remains

valid we are bound by it. We conclude that Edwards is not entitled to relief in

this case.

      Order affirmed. Jurisdiction relinquished.

      Judge Olson joins the memorandum.

      Judge Nichols concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2020




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