J-S36039-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                 Appellee                    :
                                             :
           v.                                :
                                             :
LAWRENCE ROBERT STIEFEL,                     :
                                             :
                 Appellant                   : No. 30 WDA 2015

             Appeal from the Order Entered December 16, 2014
                in the Court of Common Pleas of Butler County
             Criminal Division at No(s): CP-10-CR-0001519-2010

BEFORE: PANELLA, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED AUGUST 21, 2015

     Lawrence Robert Stiefel (Appellant) appeals from the order entered

December 16, 2014, denying his “Motion to Dismiss and Inclusive Special

Admission Relief.” After review, we affirm.

     On April 14, 2011, following a jury trial, Appellant was convicted of

aggravated      assault,    robbery,   unlawful   restraint,   and   simple   assault.

Appellant timely filed a direct appeal. On August 26, 2013, a panel of this

Court vacated Appellant’s judgment of sentence and remanded for a new

trial. Commonwealth v. Stiefel, 83 A.3d 1073 (Pa. Super. 2013)

(unpublished memorandum). The Commonwealth’s petition for review by our

Supreme Court was denied on April 22, 2014. Commonwealth v. Stiefel,

89 A.3d 1285 (Pa. 2014).




* Retired Senior Judge assigned to the Superior Court.
J-S36039-15


       Following remand, appellate counsel sought, and was granted, leave to

withdraw.     New counsel was appointed and a status conference was

scheduled for July 8, 2014. Appellant, acting pro se, filed multiple motions

with the trial court seeking leave to represent himself at trial. On October 9,

2014, appointed counsel filed a motion seeking to withdraw and requesting

the trial court schedule a Grazier1 hearing to ascertain whether Appellant

wished to waive his right to counsel and proceed pro se.

       On December 2, 2014, following a hearing on counsel’s motion, the

trial court granted counsel’s request to withdraw and granted Appellant

leave to proceed either pro se or through privately retained counsel. Trial

was scheduled for January 28, 2015.

       On December 9, 2014, Appellant filed a motion he titled “Formally

Submitted Official Motion to Dismiss the Captioned Case at Bar Inclusive

Special Admission Relief of the Petitioner’s Request Matters Herein in the

Interests of Justice as is Just.” In his motion, Appellant argued that his case

should be dismissed under the double jeopardy protections of the United

States and Pennsylvania constitutions. Appellant also requested a change of

venue and venire. On December 16, 2014, the trial court denied Appellant’s

motion to dismiss and continued the change of venue and venire requests




1
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


                                     -2-
J-S36039-15


until the time of jury selection. This timely appeal followed. 2 Both Appellant

and the trial court complied with the mandates of Pa.R.A.P. 1925.

      In his first two appellate issues, Appellant contends, albeit inartfully,

that because this Court granted him a new trial based on, what he believes

to be, prosecutorial misconduct (i.e. the Commonwealth’s elicitation of

improper hearsay testimony), retrial is barred on double jeopardy grounds.

Appellant’s Brief at 31-51.

      Instantly, it is clear that Appellant was granted a new trial not because

of prosecutorial misconduct, but on the basis that the trial court committed

reversible error in admitting hearsay statements made to police by the

victim in this matter. Stiefel, 83 A.3d 1073 (unpublished memorandum at

10) (“We find little reason, and the Commonwealth has proffered none, to

conclude that Sergeant Adam’s testimony as to what [the victim] had said

2
   We note that the trial court herein did not hold a hearing on Appellant’s
motion to dismiss, nor did it make a finding that the motion was frivolous.
As a result, the order denying Appellant’s motion is immediately appealable
as a collateral order. Pa.R.A.P. 313. See Note to Rule 313 (“Examples of
collateral orders include orders denying pre-trial motions to dismiss based
on double jeopardy in which the court does not find the motion frivolous,
Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286, 289-91 (1986)
(allowing an immediate appeal from denial of double jeopardy claim under
collateral order doctrine where trial court does not make a finding of
frivolousness); if the trial court finds the motion frivolous, the defendant
may secure review only by first filing a petition for review under Pa.R.A.P.
1573.”). See also Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011)
(reiterating that a direct appeal from denial of motion to dismiss on double
jeopardy grounds is not permitted where the hearing court has considered
the motion and made written findings that motion is frivolous; however,
absent such finding, appeal may be taken from denial of motion).




                                     -3-
J-S36039-15


was necessary for the Commonwealth’s case, when more limited testimony

could    have   demonstrated   why   the   police   initiated   an   investigation.

Therefore, we conclude that the evidence constituted inadmissible hearsay

and its admission at trial was error”).3 As this Court has explained, where

an “appellant was granted a new trial as a result of an appellate

determination that prejudicial hearsay had been admitted at his first trial,

and not as a result of prosecutorial misconduct, double jeopardy may not be

invoked as a bar to his retrial.” Commonwealth v. Green, 536 A.2d 436,

438 (Pa. Super. 1988). Accordingly, Appellant’s argument fails.4

        We turn to Appellant’s third claim, in which he appears to request

review of the trial court’s August 4, 2014 order setting bond, or in the

alternative, requests this Court grant him nominal bond. Appellant’s Brief at

51-55. The record reflects that Appellant did not raise his bond reduction

issue with the court below. Accordingly, such claim is waived. See Pa.R.A.P.

3
  The panel specifically rejected Appellant’s secondary claim that he was
prejudiced by the Commonwealth’s cross-examination regarding Appellant’s
prior convictions. Id.
4
  To the extent that Appellant complains of prosecutorial misconduct arising
from his arrest and detention on these charges, he fails to cite where in the
record he preserved such claims.         Further, those issues in no way
contributed to this Court’s determination that he was entitled to a new trial.
As such, his double jeopardy arguments premised on this alleged misconduct
is unavailing. See Commonwealth v. Culver, 1 A.3d 866, 882-83 (Pa.
Super. 2012) (holding that double jeopardy will prevent retrial of a
defendant when prosecutorial misconduct is intended to provoke the
defendant into moving for a mistrial or when the conduct of the prosecutor is
undertaken deliberately and in bad-faith with the specific intent of denying
the defendant a fair trial).



                                     -4-
J-S36039-15


302 (“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”).

      Appellant’s request for nominal bond is governed by Pa.R.Crim.P. 600.

The Rule provides, in pertinent part, as follows: “[e]xcept in cases in which

the defendant is not entitled to release on bail as provided by law, no

defendant shall be held in pretrial incarceration in excess of … 180 days from

the date on which the complaint is filed.” Pa.R.Crim.P. 600(B)(1). The Rule

provides the following procedure:

      [e]xcept in cases in which the defendant is not entitled to
      release on bail as provided by law, when a defendant is held in
      pretrial incarceration beyond the time set forth in paragraph (B),
      at any time before trial, the defendant’s attorney, or the
      defendant if unrepresented, may file a written motion requesting
      that the defendant be released immediately on nominal bail
      subject to any nonmonetary conditions of bail imposed by the
      court as permitted by law. A copy of the motion shall be served
      on the attorney for the Commonwealth concurrently with filing.
      The judge shall conduct a hearing on the motion.

Pa.R.Crim.P. 600(D)(2).

      The record reflects that Appellant has failed to raise properly his

nominal bail issue with the trial court. Accordingly, this issue is waived. See

Pa.R.A.P. 302.




                                     -5-
J-S36039-15


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015




                          -6-
