J-A29010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 ORLANDO KELTY,                         :   No. 3417 EDA 2016
                                        :
                   Appellee             :

                Appeal from the Order September 26, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004674-2012

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 ORLANDO KELTY                          :   No. 3853 EDA 2016

                 Appeal from the Order December 6, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0004674-2012


BEFORE:   OTT, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY OTT, J.:                             FILED APRIL 03, 2019

     In these consolidated matters, the Commonwealth appeals from orders

entered on September 26, 2016, and December 6, 2016, in the Philadelphia

Court of Common Pleas. Appellee, Orlando Kelty, and his co-defendant, Malik




____________________________________
* Former Justice specially assigned to the Superior Court.
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Martain,1 were charged with multiple offenses related to an armed robbery of

the victim, Shawn Holloway, that occurred on March 6, 2012. The court’s

September 26, 2016, order dismissed all charges against Kelty and Martain,

and the December 6, 2016, order denied the Commonwealth’s motion to

reinstate bills of information against the co-defendants.        Based on the

following, we reverse and remand for further proceedings.

       The facts and procedural history are as follows. As noted above, Kelty

and Martain were arrested and charged with multiple offenses, including

attempted murder and criminal conspiracy,2 for a robbery that took place in

March of 2012. A jury trial commenced on February 22, 2016, before the

Honorable J. Scott O’Keefe. On February 29, 2016, the victim recanted, and

the trial resulted in a mistrial. Kelty and Martain were then granted a retrial.

       A new trial was listed before the Honorable Sierra Thomas Street. On

September 22, 2016, at a trial readiness conference, both the Commonwealth

and defense counsel indicated the matter was ready to proceed to trial.

However, on September 26, 2016, the date set for trial, Judge Street

dismissed the case against Kelty and Martain, finding the Commonwealth was

not ready to proceed when the case was called because a Commonwealth



____________________________________________


1 The Commonwealth has filed identical appeals with respect to Martain, at
Docket Nos. 3404 EDA 2016 and 3855 EDA 2016. This Court directed that
the appeals be listed consecutively.

2   See 18 Pa.C.S. §§ 901/2501 and 903.

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witness, the victim, was absent. The Commonwealth then filed a motion to

reconsider on October 3, 2016, before Judge Street, and a notice of appeal on

October 26, 2016, which was docketed at No. 3417 EDA 2016. The motion to

reconsider was denied by operation of law on November 2, 2016.

      Subsequently, the Commonwealth filed a motion to reinstate bills of

information on December 2, 2016, before the Honorable Leon W. Tucker. That

motion was denied on December 6, 2016. The Commonwealth then filed a

notice of appeal, which was docketed at No. 3853 EDA 2016.

      On January 5, 2017, the Commonwealth filed an application for

consolidation of these related appeals in addition to its appeals with respect

to co-defendant Martain. On February 14, 2017, in a per curiam order, this

Court granted the Commonwealth’s motion to consolidate the appeals. See

Order, 2/14/2017.

      The Commonwealth raises the following issues for our review:

      1(a). Was the common pleas court’s dismissal of all charges on
      the day of trial, on the ground that the evidence was insufficient
      to establish a prima facie case, a final order appealable by the
      Commonwealth?

      1(b). If the dismissal was not a final order, but merely an
      interlocutory order permitting the Commonwealth to reinstate
      charges, then was the subsequent refusal to reinstate the charges
      a final order appealable by the Commonwealth?

      2. Did the court below lawfully terminate the prosecution where
      the evidence was plainly sufficient to establish a prima facie case,
      and the Rule 600 run date was still at least five months away?

Commonwealth’s Brief at 2.


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       In its first issue, the Commonwealth claims:

       The trial judge discharged the case on the morning of trial, on the
       ground that the Commonwealth would not be able to establish a
       prima facie case because the victim was not available for court
       that day.       Despite the judge’s after-the-fact effort to
       recharacterize it, that discharge was a final order, based on the
       alleged legal insufficiency of the evidence.

Id. at 8.3 Moreover, the Commonwealth states:

       The trial judge’s attempt to transform her discharge order into a
       dismissal “without prejudice” cannot succeed. At the time of the
       order, the judge announced that the case was “discharged” and
       “dismissed,” and that she was “discharging this.” The judge said
       not a word indicating that her ruling was without prejudice, or
       suggesting that the charges could simply be reinstated. It was
       only when she issued her opinion, more than eight months later,
       that the order ending the case became a mere dismissal without
       prejudice. But by then it was too late. The judge lost power to
       modify her order after 30 days. 42 Pa.C.S. § 5505.

Id. at 8-9 (reproduced record citation omitted).

       Preliminarily, we must determine whether the Commonwealth has

appealed from a final order. See Pa.R.A.P. 341(e) (“An appeal may be taken

by the Commonwealth from any final order in a criminal matter only in the

circumstances provided by law.”).

       Generally, when criminal charges are dismissed, the
       Commonwealth can simply refile the charges and therefore an
       appeal from such an order is interlocutory. Commonwealth v.
       Waller, 1996 Pa. Super. LEXIS 3180, Pa. Super. , 682 A.2d 1292
____________________________________________


3 The Commonwealth also argues in the alternative that “[i]f, however, the
judge was correct that her order was interlocutory, then she must also have
been correct that the Commonwealth was free to bring the case before any
other judge empowered to hold a new preliminary hearing.” Commonwealth’s
Brief at 8. Based on our disposition, we need not address this alternative
argument.

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     (1996). As stated in Waller, the determination of whether a
     dismissal of criminal charges is a final order for purposes of appeal
     depends on the reason behind the order. If the defect which
     prompted the dismissal is curable, the appeal is interlocutory. If
     the defect is incurable, then the order is final and the appeal is
     proper. Id.

Commonwealth v. Price, 684 A.2d 640, 641 (Pa. Super. 1996).

     Here, a review of the record reveals the following: At the September

26, 2016, proceeding, before the trial was to begin, the following exchange

occurred between the court and the parties:

     THE COURT: You’re ready?

     [Kelty’s counsel]: I’m ready, Judge.

     THE COURT: Commonwealth?

     [The Commonwealth]: And I told counsel that … my complainant
     is in SCI Forest. I can try to make arrangements so that he can
     be brought in and we can roll this to next week. I am otherwise
     ready, but I need him here, obviously. And this is a retrial
     stemming from a mistrial that occurred in March.

     [Martain’s counsel]: Judge, I have a homicide trial scheduled to
     begin on Monday … next week.

                                      …

     THE COURT: I have another case next week as well.

     [Martain’s counsel]: And I have no indication -- I have no
     knowledge of whether there was a writ prepared for this man.

     THE COURT: I don’t either. I don’t see anything in the docket.

     [Martain’s counsel]: Yeah, I don’t either.

     THE COURT: Normally I would write that on my file about the
     witnesses, the witnesses’ whereabouts, and I don’t think it was


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     mentioned prior to today because I don’t see it in the dockets or
     on my file. I don’t -- well, I don’t’ see it, so --

     THE CRIER: The Court is in chambers next week, Your Honor.

     THE COURT: Oh.

     THE CRIER: The Court is in chambers.

     [The Commonwealth]: All right. Well, then if -- I mean, if it can’t
     be rolled until next week, if we can get a short date. Obviously,
     the Commonwealth is within the run date as established once the
     mistrial was granted and a new trial was granted, so I’m not
     looking for a date next year, but if we can figure out a time when
     the rest of us are otherwise ready or otherwise able to try it --

     THE COURT: No. This matter is discharged.

     [The Commonwealth]: Your Honor, could you just give me a basis
     for the discharge?

     THE COURT: You’re not ready today. You have -- you gave no
     notice to the Court that you needed a witness from state custody.
     There’s no indication that you ever gave any notice about this.
     We had a trial readiness last week. There’s no indication -- you
     said you were ready. This is an open case from 2012.

     [The Commonwealth]: Yes, but I’m just wondering if you could
     give me a -- I mean, a -- a basis. I mean, we are within our run
     date of 365 days.

     THE COURT: I know that’s your argument, your legal argument,
     but --

     [The Commonwealth]: Yes, Your Honor. I’m asking for what the
     legal basis is for the discharge.

     THE COURT: Well, I don’t have any other basis than what I just
     stated, so it’s dismissed. That’s my basis for discharging this.

     [The Commonwealth]: Okay.

     [Kelty’s counsel]: And, Your Honor, for purposes of the record,
     just to keep it clean, I’m not going to add anything, but I just want

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     to include that my arguments are the same as those [Martain’s
     counsel] made earlier.

     THE COURT: You want to repeat those for the record?

     [Martain’s counsel]: Other than I’m ready, I don’t see any
     indication that arrangements or preparations were made to have
     this witness brought here. We are now, what, three or four
     months since the trial readiness conference? The trial readiness
     conference was last week and this case was called ready. I have
     prepared for trial and I know --

     THE COURT: Did the witness’s custody status change from the
     last time you tried the case?

     [Martain’s counsel]: No.

     [The Commonwealth]: No. And that’s why I'm not sure -- I mean,
     it is my -- to the best of my recollection, not only was a writ
     prepared from here --

     [Martain’s counsel]: No.

     [The Commonwealth]: -- but I didn’t bring my box with me
     because prior to coming in this morning, I checked and realized
     that Mr. Holloway had not been moved from SCI Forest. Now, the
     vast majority of the time that has been taken in this case -- in
     fact, I don't think the Commonwealth has ever taken a date on
     this case. The last listing, the notes of testimony were not done
     from the trial and [Martain’s counsel] had filed a motion to
     withdraw as counsel, which he subsequently withdrew that motion
     to withdraw the day of trial. So --

     [Martain’s counsel]: No, no. Not correct. It was withdrawn --

     [The Commonwealth]: The Friday before trial.

     [Martain’s counsel]: It was filed prior to the June pretrial and
     withdrawn at the June pretrial date. It did not cause one minute’s
     delay in this case and the notes have been available -- I received
     the notes months ago. The only thing the record reflects is that I
     had ordered the notes. The notes were delivered to me. I paid
     for my notes probably three or four months ago, so I haven’t



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     caused any delay since the mistrial in March that was occasioned
     by --

     [The Commonwealth]: That was not occasioned by anything the
     Commonwealth --

     [Martain’s counsel]: -- a Commonwealth witness blurting out
     something that was not asked of him.

     [The Commonwealth]: Counsel is well aware --

     THE COURT: It’s not really -- this is not really about -- you two
     can argue the point, but it’s really not about – I’m not doing this
     because of what counsel said.

     [The Commonwealth]: Right. So --

     THE COURT: It’s mostly because of what I said.

     [The Commonwealth]: Okay.

     THE COURT: So I understand your point, [Commonwealth]. It’s
     nothing personal against you, but I think this case is --

     [The Commonwealth]: And I understand that. I’m just -- because
     there was a mistrial and the case been tried, there is a new 365
     days, so I'm wondering what it is, what basis there is to dismiss
     the case otherwise because I don't think that there is one.

     THE COURT: Okay.

     [The Commonwealth]: And I'm not sure that the law allows you
     to do that.

     THE COURT: Okay. Well, I just did it and I’m going to move on to
     the next case on the list.

     [The Commonwealth]: Okay.

N.T., 9/26/2016, at 5-11.

     That same day, a “Trial Disposition and Dismissal Form” was entered by

Judge Thomas Street, indicating all counts were dismissed, and in the

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comment section, the following was noted: “Case Dismissed – Commonwealth

Not Ready.” Trial Disposition and Dismissal Form, 9/26/2016.

      In her Rule 1925(a) opinion, Judge Thomas Street expounded on her

rationale as follows:

             Firstly, the Commonwealth is incorrect in its claim that this
      court dismissed either case “with prejudice.” (See Malik Martain
      Secure Docket p. 28, Orlando Kelty Secure Docket p. 29).
      Moreover, the Commonwealth may only appeal from a final order
      issued by a trial court. Pa.R.A.P. 341(e). Dismissals of criminal
      complaints based upon remediable, or curable defects, are
      interlocutory and do not bar refiling upon dismissal.
      Commonwealth v. LaBelle, 612 A.2d 418 (Pa. 1992). The
      Commonwealth’s failure to make a prima facie case due to the
      absence of a Commonwealth witness on the date set for trial is
      one such remediable defect. Commonwealth v. Jones, 676
      A.2d 251 (Pa. Super. 1996), see also Commonwealth v.
      Hetherington, 331 A.2d 205 (1975). An order dismissing a case
      for failure to make a prima facie case is not final because the
      prosecution can bring the case before any other officer
      empowered to hold a preliminary hearing. Id. Refiling a criminal
      complaint is the appropriate procedure and the Commonwealth’s
      only recourse where charges are dismissed upon the lack of a
      prima facie case since such a determination is interlocutory in
      nature and, therefore, not appealable. Jones, 676 A.2d at 252
      (citing Commonwealth v. Mirarchi, 392 A.2d 1346 (Pa. 1978)).

            In Jones, a trial court dismissed a criminal complaint
      because of the absence of the Commonwealth’s witnesses on the
      date set for trial. Id. at 251. The Commonwealth did not appeal
      this dismissal, but instead reinstituted the original charges in a
      new criminal complaint. Id. The Pennsylvania Superior Court
      held that the dismissal was permissible for the failure-to–
      prosecute and that the Commonwealth’s refiling was the
      appropriate remedy. Id. at 252. Similarly, in Commonwealth
      v. Waller, 682 A.2d 1292, a trial court dismissed the charges
      against a defendant following a denial of the Commonwealth’s
      request for a one-day continuance.        The charges were not
      dismissed with prejudice.       Id. at 1295.      On appeal the
      Commonwealth contended that the denial of the one-day
      continuance and the dismissal of charges by the trial court were

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       improper. Id. at 1294. The Superior Court held in response that
       the dismissal was interlocutory and therefore review of the case
       was precluded. Id. The Court subsequently quashed the appeal
       by the Commonwealth and indicated that refiling the complaint
       was the proper remedy. Id.

              In this case, this court dismissed the criminal complaints
       against Orlando Kelty and Malik Martain in light of the
       Commonwealth’s failure to make a prima facie case due to the
       absence of the complaining witness on the date set for trial, nearly
       five years after the complaints were filed. This court did not
       dismiss the complaints with prejudice. At the trial readiness
       conference on September 22, 2016, the Commonwealth asserted
       that it was ready to proceed to trial. (N.T. 9/22/16 p. 5). On
       September 26th at trial, the Commonwealth failed to arrange for
       the complaining witness’ appearance in-court from custody at SCI
       Forest. (N.T. 9/26/16 p. 3). Thereupon, this court dismissed the
       complaints against Mr. Kelty and Mr. Malik. (N.T. 9/26/16 p. 8).
       As in Jones and Waller, this court’s dismissal was based upon
       the Commonwealth’s failure to present a necessary witness to
       make a prime facie case. In neither the docket nor the transcripts
       did this court ever represent the dismissal to be with prejudice.
       This court also notes that the dismissal of the complaints occurred
       1,662 days after the complaints had originally been filed.
       Therefore, the Commonwealth’s appeal is precluded from
       appellate review and its sole recourse is the refiling of the criminal
       charges.

Trial Court Opinion, 6/7/2017, at 2-4.4

       While it appears, at first glance, the Commonwealth could simply refile

the charges as the trial judge indicated in her Rule 1925(a) opinion that these

cases were dismissed without prejudice, we note that such a clarification was

conspicuously absent from her discussion with the parties at the September


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4  We note the court incorrectly states the Commonwealth failed to make a
prime facie case “nearly five years” after the complaints were filed. Trial Court
Opinion, 6/7/2017, at 3. The appellees’ original trial resulted in a mistrial in
February of 2016. The retrial occurred on September 26, 2016.

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26, 2016, trial and in the corresponding order. Our review of the transcript

and order reveals the trial judge repeatedly stated the cases were “dismissed”

and “discharged” based on a failure to produce the complaining witness. This

conclusion is further supported by the fact that the trial judge did not grant

any period of time to the Commonwealth so that it could procure the witness,

and the court did not hold a hearing to determine if the trial could begin with

the   presentation     of   other    Commonwealth   witnesses   while   it   made

arrangements for the transportation of the complaining witness. Based on

these specific facts, we are compelled to conclude the Commonwealth acted

properly in concluding that the defect was incurable, the trial judge dismissed

the case with prejudice, and therefore, the September 26, 2016, order was

final and appealable. See Waller, supra.5

       Moreover, we note the court’s reliance on Waller, supra, and Jones,

supra, is misplaced. In Waller, on the day of a hearing on pre-trial motions

and trial, the Commonwealth informed the court that it was not prepared to

proceed to trial because a witness was not present.       Waller, 682 A.2d at

1293. The witness had been subpoenaed to appear, but was later informed

he was not needed at trial because a guilty plea was expected to take place.


____________________________________________


5 The judge’s attempts to recharacterize her ruling in her Rule 1925(a) opinion
are untimely. See 42 Pa.C.S. § 5505 (“Except as otherwise provided or
prescribed by law, a court upon notice to the parties may modify or rescind
any order within 30 days after its entry, notwithstanding the prior termination
of any term of court, if no appeal from such order has been taken or
allowed.”).

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Id. While the Commonwealth requested a one-day continuance to secure the

witness’s presence, the court denied the request, but did give the

Commonwealth until the afternoon to produce the witness. Id. at 1293-1294.

When the witness failed to appear, the Commonwealth informed the court that

it was unable to proceed. The court then dismissed all charges against the

defendant. The Commonwealth appealed and a panel of this Court quashed

the appeal as interlocutory because the charges were dismissed without

prejudice and no speedy trial or statute of limitation problem existed at the

time the charges were dismissed. Id. at 1295. The panel concluded “the

defect leading to the dismissal of the charges against [the defendant] was

curable through refiling the complaint and subsequent production of the

requested witness.” Id. Turning to the present matter, the trial judge did not

dismiss the charges without prejudice and did not provide the Commonwealth

with any opportunity to procure the witness.6

       Likewise, in Jones, the Commonwealth did not appeal the dismissal of

the defendant’s charges for failure to produce to witness, but rather,

reinstituted the charges in a new criminal complaint. Jones, 676 A.2d at 252.

The defendant filed a motion to quash the new complaint on the grounds that

refiling of the charges was improper, which the trial court granted. Id. The


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6 Moreover, here, while the Commonwealth informed the trial judge that it
was within the 365-day period under Pa.R.Crim.P 600, the judge never
acknowledged this fact in her decision. See N.T., 9/26/2016, at 3, 7, and 10-
11.

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appeal concerned that decision and not whether the court’s original decision

to dismiss the case for failure to present witnesses was with or without

prejudice as is the argument herein. Accordingly, we conclude Waller and

Jones are distinguishable from the present matter.

      Rather,   we   liken   the   present     matter   to   situations   where   the

Commonwealth has committed a discovery rule violation, and where this Court

has previously stated:

      “[The] dismissal of charges is a penalty far too drastic for a
      prosecutor's violation of discovery rules.” Commonwealth v.
      King, 2007 PA Super 271, 932 A.2d 948, 952, (Pa. Super.
      2007)(citations omitted).

                                        …

      Dismissal of criminal charges punishes not only the prosecutor ...
      but also the public at large, since the public has a reasonable
      expectation that those who have been charged with crimes will be
      fairly prosecuted to the full extent of the law. Thus, the sanction
      of dismissal of criminal charges should be utilized only in the most
      blatant cases. Given the public policy goal of protecting the public
      from criminal conduct, a trial court should consider dismissal of
      charges where the actions of the Commonwealth are egregious
      and where demonstrable prejudice will be suffered by the
      defendant if the charges are not dismissed.

Commonwealth v. A.G., 955 A.2d 1022, 1025 (Pa. Super. 2008).

      In conclusion, the trial judge erred in determining its September 26,

2016, ruling was an interlocutory, non-appealable order as the record

demonstrates the court’s determination was a dismissal of the case with

prejudice. Moreover, the court acted improperly by failing to either grant the

Commonwealth a continuance or hold a hearing to determine if the


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Commonwealth could proceed with trial using other witnesses first.     There

were no Rule 600 issues as a new trial had been granted. See Pa.R.Crim.P.

600(A)(2)(d) (“When a trial court has granted a new trial and no appeal has

been perfected, the new trial shall commence within 365 days from the date

on which the trial court’s order is filed.”). The Commonwealth’s actions were

not egregious and the co-defendants would not have suffered any prejudice

from a minor delay.

     Accordingly, we find the trial court erred in dismissing all charges

against Kelty and Martain. Therefore, we reverse the September 26, 2016,

order, and remand for further proceedings.     Based on our disposition, a

determination regarding the Honorable Leon W. Tucker’s December 6, 2016,

order, denying the Commonwealth’s motion to reinstate bills of information

against the co-defendants, is moot.

     At Docket No. 3417 EDA 2016, order entered September 26, 2016, order

reversed. At Docket No. 3853 EDA 2016, appeal dismissed as moot. Case

remanded for further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/19



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