J-S58022-18

                               2018 PA Super 301

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TERRON L. MILLER                        :
                                         :
                   Appellant             :   No. 369 WDA 2018

                   Appeal from the Order February 7, 2018
  In the Court of Common Pleas of Blair County Criminal Division at No(s):
                          CP-07-CR-0001327-2017


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

OPINION BY MURRAY, J.:                        FILED NOVEMBER 05, 2018

     Terron Miller (Appellant) appeals from the order denying his pre-trial

motion to dismiss charges based on double jeopardy. Upon review, we affirm.

     The trial court detailed the factual and procedural background:

         On or about April 6, 2017, the Altoona Police Department
     charged [Appellant] with various violations of the Controlled
     Substance Act. These charges occurred as a result of a statewide
     grand jury and subsequent grand jury presentment. Following a
     preliminary hearing, the Commonwealth filed a Criminal
     Information on July 24, 2017. The Criminal Information charged
     [Appellant] with one count of criminal conspiracy. The count of
     criminal conspiracy alleged that [Appellant] engaged in conduct
     which would constitute a crime or an attempt or solicitation to
     commit a crime. The allegations in the Criminal Conspiracy
     Complaint indicate that the conspiracy occurred between on or
     about January 1, 2015 through February 2, 2016 within Blair and
     York Counties. The Commonwealth also charged [Appellant] with
     one count of possession with intent to deliver/delivery of a
     controlled substance indicating that [Appellant] unlawfully,
     willfully, and feloniously possessed with intent to deliver a
     controlled substance between on or about January 1, 2015
     through February 2. 2016. The Commonwealth also alleges a
     charge of dealing in proceeds of unlawful activity, utilizing the
     dates of between on or about January 1, 2015 through February
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     2, 2016 and two counts of corrupt organizations. The corrupt
     organization charges indicate the same relevant dates January 1,
     2015 through February 2, 2016 but allege violations of different
     subsections of the corrupt organization statute.              The
     Commonwealth also charged [Appellant] with an additional count
     of possession of drug paraphernalia as a misdemeanor offense but
     did not provide a specific date for that offense. The case
     proceeded through the pretrial stage. During the pretrial stage,
     [Appellant] filed an Omnibus Pretrial Motion for Relief on August
     16, 2017. Relevant to this Opinion, [Appellant’s] Omnibus Pretrial
     Motion included a Motion to Dismiss.

         In [Appellant’s] Motion to Dismiss, [Appellant] draws the
     Court’s attention to numerous prior criminal actions previously
     addressed in the Court of Common Pleas of Blair County. These
     matters were docketed at 2016 CR 1258, 1259, 1260, 1261, 1262
     and 1461. In [Appellant’s] Motion he indicates that the previous
     docket numbers evidenced charges of possession with intent to
     deliver for six (6) sales of heroin to a confidential informant which
     were alleged to have occurred on June 12, 2015 (2016 CR 1262),
     July 16, 2015 (2016 CR 1461), September 10, 2015 (2016 CR
     1261), October 23, 2015 (2016 CR 1260), January 29, 2016 (2016
     CR 1259) and February 2, 2016 (2016 CR 1258). The record
     establishes that [Appellant] entered guilty pleas in the
     aforementioned matters on November 21, 2016 and received a
     period of incarceration of 5 to 15 years. [Appellant’s] guilty pleas
     were for a count of criminal conspiracy and a count of possession
     with intent to deliver at each of the aforementioned criminal action
     numbers. [Appellant] alleges that the current prosecution is
     based on the same conduct for which [Appellant] was previously
     prosecuted and that the current prosecution arises from the same
     criminal episode for which [Appellant] was previously prosecuted.
     [Appellant] further alleges that the prior prosecutions of
     [Appellant] took place in the same jurisdiction as the present
     prosecution and that the prosecuting officers were aware of the
     alleged acts which led to the present prosecution at the time of
     his guilty plea and sentencing on November 21, 2016. For these
     reasons, [Appellant] alleges that his charges should be barred by
     18 Pa.C.S.A. § 109 and § 110 and Article 1 § 10 of the Constitution
     of the Commonwealth of Pennsylvania and the Fifth Amendment
     of the Constitution of the United States.

        As a result of the filing of [Appellant’s] Pretrial Motion, the [trial
     court] conducted a hearing on the Omnibus Pretrial Motion on

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      November 28, 2017. Following the November 28, 2017 hearing,
      the [c]ourt issued Orders on November 28, 2017 and November
      30, 2017. These Orders indicated that the Commonwealth and
      the [Appellant] agreed to incorporate the Affidavits of Probable
      Cause for each of the prior prosecutions as well as the Grand Jury
      presentment for the current prosecution so that the [c]ourt
      [could] utilize this evidence to make a decision on [Appellant’s]
      outstanding motion. The [c]ourt also provided the parties an
      opportunity to brief the issues before the Court. As a result,
      [Appellant] submitted a legal argument on or about December 21,
      2017. The Commonwealth filed a Memorandum of Law on January
      2, 2018.

Trial Court Opinion, 2/7/18, at 1-4.

      To summarize, on November 21, 2016, as a result of charges filed by

the District Attorney of Blair County, Appellant pled guilty to six counts of

possession with intent to deliver (PWID) and conspiracy related to Appellant

selling heroin to a confidential informant on June 12, 2015, July 16, 2015,

September 10, 2015, October 23, 2015, January 29, 2016, and February 6,

2016. The trial court sentenced Appellant to 5 to 15 years of incarceration.

At that time, the parties and the trial court “knew that Appellant was the

subject of a grand jury investigation concerning those various transactions.”

Appellant’s Brief at 6, 10.

      On April 3, 2017, the Attorney General of Pennsylvania filed a criminal

complaint against Appellant relating to a major, statewide heroin trafficking

ring that resulted in Appellant being charged with seven drug-related crimes,

including PWID and conspiracy, from January 1, 2015 through February 2,

2016. Appellant filed a motion to dismiss the charges based on the Double

Jeopardy Clauses of the United States and Pennsylvania Constitutions as well

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as Section 110 of the Pennsylvania Crimes Code (“When prosecution barred

by former prosecution for different offense”).

        On February 7, 2018, the trial court entered an order and opinion

denying Appellant’s motion to dismiss. Appellant timely filed this interlocutory

appeal.1

        Appellant presents a single issue for our review:

        DID THE TRIAL COURT ERR IN CONCLUDING THAT THE PRESENT
        PROSECUTION IS NOT BARRED BY ARTICLE 1 SECTION 10 OF THE
        PENNSYLVANIA CONSTITUTION AND THE FIFTH AMENDMENT OF
        THE UNITED STATES CONSTITUTION?

Appellant’s Brief at 4.

        With respect to Appellant’s double jeopardy claim, our scope and

standard of review is as follows:


____________________________________________


1   This Court has stated:

        The denial of a pretrial motion to dismiss an indictment on double
        jeopardy grounds is subject to appellate review unless it appears
        that the claim is frivolous. Commonwealth v. Shull, 811 A.2d
        1, 3 (Pa. Super. 2002) (citation omitted). Additionally, Rule 313
        states that an appeal may be taken as of right from a collateral
        order of a lower court. See Pa.R.A.P. 313(a). Further, the
        comment to Rule 313 cites examples of collateral orders and
        includes an order denying a pre-trial motion to dismiss based on
        double jeopardy. See Pa.R.A.P. 313 (citing Commonwealth v.
        Brady, [] 508 A.2d 286, 289-91 ([Pa.] 1986) (allowing an
        immediate appeal from denial of double jeopardy claim under
        collateral order doctrine where trial court makes a finding that
        motion is not frivolous)).

Commonwealth v. Schmidt, 919 A.2d 241, 244 (Pa. Super. 2007), appeal
denied, 936 A.2d 40 (Pa. 2007).


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      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[.]
      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
      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 prohibition against double jeopardy was designed to protect

individuals from being tried or punished more than once for the same

allegation or offense.   Commonwealth v. Ball, 146 A.3d 755, 759 (Pa.

2016). The Fifth Amendment of the United States Constitution provides, in

relevant part, that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb [.]” U.S. Const. amend. V. Likewise, Article I,

§ 10 of the Pennsylvania Constitution provides that “No person shall, for the

same offense, be twice put in jeopardy of life or limb.” Pa. Const. art. I, § 10;

see also Commonwealth v. Minnis, 83 A.3d 1047, 1049 n.1 (Pa. Super.

2014) (en banc).

      With regard to Section 110 of the Pennsylvania Crimes Code, the policies

served by the statute are two-fold:         to protect accused persons from

governmental harassment of undergoing successive trials for offenses

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stemming from the same episode, and to promote judicial economy and

finality by avoiding repetitious litigation.   Commonwealth v. George, 38

A.3d 893, 896 (Pa. Super. 2012). The statute provides:

      § 110. When prosecution barred by former prosecution for
      different offense

      Although a prosecution is for a violation of a different provision of
      the statutes than a former prosecution or is based on different
      facts, it is barred by such former prosecution under the following
      circumstances:

         (1) The former prosecution resulted in an acquittal or in a
         conviction as defined in section 109 of this title (relating to
         when prosecution barred by former prosecution for the same
         offense) and the subsequent prosecution is for:

            (i) any offense of which the defendant could have been
            convicted on the first prosecution;

            (ii) any offense based on the same conduct or arising from
            the same criminal episode, if such offense was known to the
            appropriate prosecuting officer at the time of the
            commencement of the first trial and occurred within the
            same judicial district as the former prosecution unless the
            court ordered a separate trial of the charge of such offense;
            or

            (iii) the same conduct, unless:

               (A) the offense of which the defendant was formerly
               convicted or acquitted and the offense for which he is
               subsequently prosecuted each requires proof of a fact not
               required by the other and the law defining each of such
               offenses is intended to prevent a substantially different
               harm or evil; or

               (B) the second offense was not consummated when the
               former trial began.

18 Pa.C.S.A. § 110.


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      At the outset of our analysis, we note that the trial court maintains that

Appellant waived his Section 110 claim. The court found that “the colloquy of

[Appellant] at the time of his sentencing hearing evidences a specific

understanding that he will be charged by the grand jury with additional

charges for the same timeframes and that those charges could be part of the

same criminal episode.”     Trial Court Opinion, 2/7/18, at 7.       The court

continued: “[Appellant] had counsel at the time . . . and we find that the

colloquy is sufficient to establish that [Appellant] understood his rights under

[Section] 110 and specifically waived those rights.” Id.

      The Commonwealth likewise argues that Appellant “waived any double

jeopardy and/or compulsory joinder claims he may have had . . . as a term of

a favorable plea agreement.” Commonwealth Brief at 6. The Commonwealth

states:

      [Appellant] received the benefit of this bargain from the
      Commonwealth in the form of nolle prossed charges and an
      agreed-upon sentence, but now seeks to renege on his portion of
      the agreement and receive more consideration than that to which
      he is rightfully entitled, via the assertion of rights that he had
      expressly agreed to waive.

Id.

      In response, Appellant argues that “a review of the colloquy reveals that

no such waiver was properly conducted . . . .”        Appellant’s Brief at 13.

Appellant asserts that the colloquy is “entirely unclear” as “to what rights

Appellant is waiving, and, in particular, the constitutional rights contained




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within the Double Jeopardy Clause w[ere] not explained to the Appellant, nor

was any alleged waiver of same knowing and intelligent.” Id. at 14.

     With regard to the double jeopardy clause, Section 110, and waiver, we

have stated:

     While in many respects [S]ection 110 and the double jeopardy
     clause serve the same ends, nevertheless, the two provisions are
     not one and the same. In the first instance, the double jeopardy
     clause is, of course, a constitutional right; by contrast, [S]ection
     110 is merely statutory. This distinction is crucial when the
     question of waiver is an issue. A constitutional right will only be
     deemed waived where the decision to waive that right is both
     knowing and intelligent. With regard to statutory provisions, the
     waiver need only be voluntary.

Commonwealth v. Johnson, 466 A.2d 636, 639-40 (Pa. Super. 1983).

     The notes of testimony from Appellant’s prior guilty plea reflect that

Appellant waived his right to challenge the charges in this case on the basis

of Section 110:

     [Commonwealth]: Do you understand that you would potentially
     have what is known as a Section 110 challenge to new offenses
     regarding the dates covered these controlled buys? Do you
     understand that?

     [Appellant]: Yes

     [Commonwealth]: And you are waiving any objection or . . . any
     objection to you being charged with regards to historical time
     frames associated with these types of charges, meaning
     Possession With the Intent to Deliver, Criminal Conspiracy and
     other charges from the grand jury; do you understand that?

     [Appellant]: Yes.

     [Commonwealth]: And you are indicating you are waiving any
     Section 110 challenge to new charges?


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      [Appellant]: Yes.

N.T., 11/21/16, at 4.

      Nevertheless, the question of whether Appellant waived his right to

challenge his charges in this case on the basis of Section 110 is not entirely

dispositive, as waiver of a Section 110 claim does not equate to waiver of a

claim brought under the double jeopardy clause. We reiterate that waiver

under Section 110 “need only be voluntary,” while the constitutional right

against double jeopardy “will only be deemed waived where the decision to

waive that right is both knowing and intelligent.” Johnson, 466 A.2d at 639-

40. There is no indication in the notes of testimony from Appellant’s guilty

plea that he received a thorough colloquy regarding his constitutional rights

under the double jeopardy clause and therefore, that he knowingly and

intelligently   waived   his    constitutional   right   against   double   jeopardy.

Accordingly, we conclude that Appellant has not waived his double jeopardy

claim.

      We turn now to the merits of Appellant’s challenge to the trial court’s

denial of his motion to dismiss on double jeopardy grounds. Appellant argues

that to defend himself in the underlying case, he will “have to defend himself

against conduct to which he was criminally charged and to which he pled guilty

in November 2016.”             Appellant’s Brief at 8.       He asserts that “the

Commonwealth will present the same evidence, i.e., testimony concerning the

six controlled buys,” and “this evidence would include the duplication of


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testimony of the confidential informants, the police officers involved in said

controlled buys, and the laboratory professionals as to the drug involved.” Id.

at 12.

         The Commonwealth responds that “in keeping with the terms of the

[negotiated] plea agreement, the Commonwealth has no intention of seeking

additional punishment for [Appellant] for the specific drug buys that formed

the bases [sic] for his earlier guilty pleas. These incidents will be used only

to flesh out the full picture of [Appellant’s] criminal activity and organization.”

Commonwealth Brief at 8.

         This Court has applied the following standards for determining when a

prosecution violates double jeopardy protections:

         Both the federal and state double jeopardy clauses are intended
         to protect defendants from subsequent prosecutions for the same
         act. The Pennsylvania Constitution’s double jeopardy clause has
         been interpreted as “coextensive” with the federal Constitution’s
         Fifth Amendment. Commonwealth v. Ball, [] 146 A.3d 755, 763
         ([Pa.] 2016). The Pennsylvania Supreme Court applies the
         “same-elements” test articulated in Blockburger v. [U.S.], 284
         U.S. 299 (1932); Commonwealth v. Yerby, [] 679 A.2d 217,
         219 ([Pa.] 1996). Under the same-elements test, each offense or
         subsequent prosecution must require proof of at least one fact
         that the other offense or prosecution did not. Blockburger,
         supra at 304[]. Thus, the double jeopardy clause protects
         defendants from subsequent prosecutions for the same act.

Commonwealth v. Kolovich, 170 A.3d 520, 526 (Pa. Super. 2017), appeal

denied, 182 A.3d 429 (Pa. 2018).

         The trial court explained its decision to deny Appellant’s motion to

dismiss on grounds of double jeopardy as follows:


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      [W]e find that the grand jury presentment outlines a course of
      conduct by [Appellant] that is broader in scope than the charges
      for which he was previously convicted. It is reasonable to
      conclude that the Commonwealth will present testimony and
      evidence at the trial on his current offense that would permit the
      jury to find [Appellant] guilty of criminal conspiracy and/or
      possession with intent to deliver for criminal acts not included in
      the previous convictions.      The current charges allege that
      [Appellant] committed one count of criminal conspiracy and one
      count of possession with intent to deliver for the timeframe of
      January 1, 2015 through and including February 2, 2016. Because
      we believe that the Commonwealth may present additional
      evidence of these offenses for acts beyond what were previously
      alleged and for which [Appellant] was convicted, we do not believe
      that the Commonwealth is violating [Appellant]’s constitutional
      protections against double jeopardy. In the event that the
      Commonwealth does not present additional facts or evidence at
      trial beyond the scope of his previous convictions, this [c]ourt
      would reconsider our position either at the time of trial or in a
      post-trial motion.

Trial Court Opinion, 2/7/18, at 6-7.

      Based on our review of the certified record on appeal, including the

grand jury presentment in this case, we conclude that the trial court did not

err in denying Appellant’s pre-trial motion to dismiss. Appellant’s guilty pleas

in the prior case stem from multiple individual sales of heroin to a confidential

informant. Id. at 2-3. In the instant matter, however, the Commonwealth

seeks to prosecute Appellant for his involvement in a broad, statewide

conspiracy to traffic and distribute heroin.

      The grand jury presentment, inter alia, states:

         As a result of a collaborative law enforcement effort involving
      the Pennsylvania Office of Attorney General (“OAG”), the
      Pennsylvania State Police (“PSP”), the Blair County District
      Attorney’s Office, the Blair County Drug Task Force and the
      Altoona Police Department, the Grand Jury learned of a drug-

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      distribution organization operating in and around Altoona, Blair
      County, Pennsylvania. Initially, the Grand Jury’s investigation
      resulted in the issuance of Presentment No. 9 on December 13,
      2016, wherein it was recommended that the OAG institute
      criminal charges against Wayne Davis (“Davis”) and Lawrence
      Francis (“Francis”) based upon a number of sales of heroin that
      the two men made to confidential informants (“CI”s).

         The investigation continued, however, and the Grand Jury
      received evidence of the activities of additional participants in
      Davis and Francis’ drug-distribution ring during the years 2015
      and 2016 as well as additional controlled purchases made from
      these individuals and those working for [] Francis and [] Davis.
      These participants included: [Appellant] . . .

                                 *     *      *

         One witness told the Grand Jury that he/she was introduced to
      Davis (a/k/a New York) near the beginning of 2015. He/she
      stated that he/she also met Francis (a/k/a Shake) and [Appellant]
      (a/k/a Pimp). The witness quickly learned that Francis and Davis
      were transporting narcotics from New York City even though they
      resided in York. The witness stated that Francis was the one who
      was in charge and that he supplied Davis with the drugs. Both
      Francis and Davis supplied drugs to [Appellant], who lived in
      Altoona. The witness told the Grand Jury that at various times,
      [Appellant], Davis, and Francis were supplying Amber Plummer
      (“Plummer”), James Morgan (“Morgan”) and Nathan Foor (“Foor”)
      with bundles of heroin (one bundle is usually the equivalent of 10
      bags of heroin) which they, in turn, would sell.

Grand Jury Presentment at 3, 6-7.

      The grand jury presentment reflects that the Commonwealth seeks to

prosecute Appellant for his role in the trafficking of heroin from New York City,

through York, Pennsylvania to Altoona, Pennsylvania and the subsequent

distribution of heroin to sellers in the Altoona area.     See id.    Thus, the

prosecution in this case is far broader in scope than the charges to which

Appellant previously pled guilty. See id.

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      Importantly, in light of the early stage of proceedings in the instant

matter, Appellant does not point to, and indeed, the record does not contain,

any indication that the Commonwealth intends to base its prosecution in this

case purely on facts identical to those involving his prior convictions. To the

contrary, and as previously quoted, the Commonwealth has averred:

      [I]n keeping with the terms of the [negotiated] plea agreement,
      the Commonwealth has no intention of seeking additional
      punishment for [Appellant] for the specific drug buys that formed
      the bases [sic] for his earlier guilty pleas. These incidents will be
      used only to flesh out the full picture of [Appellant’s] criminal
      activity and organization.

Commonwealth Brief at 8.

      At this point, we – like the trial court and Appellant – simply do not

know the extent of the evidence the Commonwealth intends to present at trial.

Thus, based on the record before us, we conclude that the trial court

appropriately denied Appellant’s motion to dismiss.

      Moreover, in denying Appellant’s motion to dismiss, the trial court

alluded to the provisional nature of its decision when it stated, “In the event

that the Commonwealth does not present additional facts or evidence at trial

beyond the scope of [Appellant’s] previous convictions, this [c]ourt would

reconsider our position either at the time of trial or in a post-trial motion.”

Trial Court Opinion, 2/7/18, at 7. Therefore, if the Commonwealth fails to

present new evidence against Appellant and, as a result, attempts to

prosecute Appellant for crimes to which he already pled guilty, Appellant may

file another motion to dismiss on double jeopardy grounds.

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     For these reasons, we affirm the trial court’s order denying Appellant’s

motion to dismiss on the basis of double jeopardy.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2018




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