J-S20043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DONALD SPARKS

                            Appellant               No. 1959 WDA 2014


                  Appeal from the Order of November 19, 2014
                In the Court of Common Pleas of Fayette County
               Criminal Division at No.: CP-26-CR-0000048-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                                FILED JUNE 5, 2015

       Donald Sparks appeals the trial court’s November 19, 2014 order. In

that order, the trial court denied Sparks’ pretrial motion to dismiss the

charges against him based upon double jeopardy grounds. We affirm.

       The trial court has summarized the alleged factual history1 of this

case, as well as the relevant procedural events, as follows:

       [Sparks] has been charged with simple assault [(18 Pa.C.S. §
       2701(a))] and harassment [(18 Pa.C.S. § 2709)], resulting from
       an incident which is alleged to have occurred on or about
       September 17, 2013, involving victim Lisa Gluvna.

____________________________________________


1
      Because this case comes to this Court on appeal from a pretrial order,
the trial court’s factual narrative represents a summary of the allegations
against Sparks. These facts have not yet been presented to, or found as
credible, by a factfinder.      We provide the court’s summary only for
background purposes, and not as a representation of a definitive version of
the facts of this case.
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                               *     *     *

     On September 17, 2013[,] at approximately 6:00 P.M., Trooper
     Tonya Wroble of the Pennsylvania State Police was dispatched to
     100 Mark Drive, Apt. 17, in Georges Township, Fayette County,
     Pennsylvania, after reports that a large disturbance was
     occurring at the residence. During this disturbance, it is alleged
     that [Sparks] punched Lisa Gluvna in her face causing her nose
     to bleed. There were multiple summary citations issued as a
     result of this incident. Both [Sparks] and April Balog received
     summary citations for harassment, and [Sparks] was also cited
     with harassment for allegedly striking Lisa Gluvna, who is the
     mother of April Balog. A hearing was held by Magisterial District
     Judge Robert Breakiron on the charges filed against [Sparks]
     and April Balog, related to the incident between the two of them,
     and the charges filed against both of them were dismissed by
     Judge Breakiron.       Although Lisa Gluvna appeared and was
     prepared to testify as a witness to the incident between [Sparks]
     and April Balog, she was not called to testify. In the case filed
     against [Sparks] involving Lisa Gluvna as a victim, Ms. Gluvna
     did not testify, and this summary case was dismissed by Judge
     Breakiron, without a hearing, as Judge Breakiron indicated to
     Trooper Wroble that the charge should be filed as simple assault
     rather than harassment. After dismissal of the charge against
     [Sparks] involving Lisa Gluvna as the victim, Trooper Wroble
     filed simple assault and harassment—subject other to physical
     contact [charges,] stemming from the same incident, with Lisa
     Gluvna as the named victim. [Sparks waived his right to a
     preliminary hearing on these charges. Subsequently, Sparks,
     through counsel, made an oral motion to dismiss the charges
     against him, alleging that the prosecution of those charges
     would violate his right not to be twice placed in jeopardy for the
     same crimes. The trial court] held a hearing on November 19,
     2014, to hear testimony from April Balog, Lisa Gluvna,
     Magisterial [District] Judge Breakiron, and Trooper Tonya Wroble
     to ascertain what had occurred during the prior summary trials,
     and to hear argument on the issue of double jeopardy and the
     motion to dismiss.

                               *     *     *

     [The following evidence was elicited at the November 19, 2014
     hearing.] Magisterial District Judge Robert Breakiron dismissed
     the summary charge of harassment filed against [Sparks],
     involving the victim Lisa Gluvna, without hearing evidence. April

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     Balog testified that a summary trial was held involving the non-
     traffic harassment charges filed against both her and [Sparks].
     Both Lisa Gluvna and Trooper Tonya Wroble testified that there
     was a separate charge of harassment filed against [Sparks],
     wherein the victim was Lisa Gluvna. Both Gluvna and Trooper
     Wroble testified that no hearing on the matter took place. Ms.
     Gluvna was not sworn in, and she did not provide any testimony
     at any time for the harassment charged filed against [Sparks].
     Ms. Gluvna did not testify during the hearing involving April
     Balog as the victim, and more importantly, she did not testify as
     to what contact [Sparks] had with her that resulted in a
     summary citation against [Sparks]. [The trial court] concluded
     that no hearing occurred, and there was no testimony taken with
     regard to the summary harassment charge filed against [Sparks]
     involving Lisa Gluvna as the victim.

                               *    *     *

     Following the November 19, 2014 hearing, [the trial court]
     denied [Sparks’] motion to dismiss, holding that double jeopardy
     did not attach in this instance.

Trial Court Opinion (“T.C.O.”), 1/13/2015, at 1-4 (capitalization modified;

footnotes omitted).

     On December 2, 2014, Sparks filed a timely notice of appeal. On the

same date, the trial court directed Sparks to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).            On

December 4, 2014, Sparks filed a timely concise statement.       Finally, on

January 13, 2015, the trial court issued an opinion pursuant to Pa.R.A.P.

1925(a).

     Sparks raises a single issue for our review:     Did the court err in

denying [Sparks’] double jeopardy motion?         Brief for Sparks at 7.

Specifically, Sparks argues that the prosecution of the simple assault and




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harassment charges is barred by 18 Pa.C.S. § 110, which we discuss in more

detail below. For the reasons that follow, we disagree.

      We first confront the issue of whether we have jurisdiction in this case.

As a general rule, appellate courts have jurisdiction only over final orders.

See 42 Pa.C.S. § 742 (providing appellate jurisdiction to Superior Court over

“final orders”). A final order is an order that: (1) disposes of all claims or all

parties, (2) an order expressly defined by statute as final, or (3) an order

that does not resolve all claims in a case, but which nevertheless expressly

determines that an immediate appeal would facilitate resolution of the entire

case. Pa.R.A.P. 341. It is clear that the pretrial order that is the subject of

this appeal is not a final order according to the terms of Rule 341.

Nonetheless, the Pennsylvania Supreme Court has declared that “pretrial

orders denying double jeopardy claims are final orders for purposes of

appeal.” Commonwealth v. Orie, 22 A.3d 1021, 1024 (Pa. 2011) (quoting

Commonwealth v. Haefner, 373 A.2d 1094, 1095 (Pa. 1977) (per

curiam); citing Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977)

(plurality)). Thus, as a general rule, such orders are immediately appealable

as a final order.

      However, the avenue to appeal differs depending on whether the trial

court specifically finds that a defendant’s double jeopardy claim is frivolous.

If a trial court concludes that the claim is frivolous, the defendant still may

seek preliminary appellate review of that decision, but the defendant first

must seek a stay of the proceedings below with this Court (or the Supreme

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Court in a capital case). Orie, 22 A.3d at 1026. However, where there is no

finding of frivolousness, the appeal may proceed as a final order as

established by our Supreme Court in Haefner and Bolden.

      We have reviewed the record thoroughly. The trial court addressed,

and rejected, Sparks’ claim on the merits, ultimately concluding that Sparks

was not entitled to relief. However, at no point did the trial court determine

that the claim was frivolous, and, thus, Sparks was not required to seek a

preliminary stay of the proceedings from this Court.         We must treat the

order as a final order for purposes of this appeal, and we have jurisdiction

over this appeal.

      “An appeal grounded in double jeopardy raises a question of [] 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[.]”    Commonwealth v. Kearns 70 A.3d 881, 884 (Pa.

Super.   2013),     appeal   denied,   84   A.3d   1063   (Pa.   2014)   (quoting

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008)).

      Sparks bases his double jeopardy argument entirely upon the dictates

of 18 Pa.C.S. § 110. In Commonwealth v. Shull, 811 A.2d 1 (Pa. Super.

2002), we set forth the elements of § 110 as well as the legal standards that

govern a claim under that section as follows:

      Section 110 states in relevant part:

         Although a prosecution is for a violation of a different
         provision of the statutes than a former prosecution or is



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       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 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 was
                         within the jurisdiction of a single court
                         unless the court ordered a separate trial of
                         the charges 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   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. § 110.

     Section 110 requires that all known charges based upon the
     same conduct or arising from the same criminal episode be
     consolidated for trial unless the court orders separate trials. 18
     Pa.C.S. § 110; Commonwealth v. Hude, 458 A.2d 177, 181
     (Pa. 1983). This compulsory joinder rule serves two distinct
     policy considerations. First, it protects a defendant from the
     governmental harassment of being subjected to successive trials


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        for offenses stemming from the same criminal episode.
        Secondly, the rule assures finality without unduly burdening the
        judicial process by repetitious litigation. Commonwealth v.
        Failor, 770 A.2d 310, 313 (Pa. 2001).

        Under Section 110, the Commonwealth is prohibited from
        prosecuting a defendant based on its former prosecution of the
        defendant if the following four-part test is met:

           (1) the former prosecution resulted in an acquittal or a
           conviction; (2) the current prosecution must be based on
           the same criminal conduct or have arisen from the same
           criminal episode as the former prosecution; (3) the
           prosecutor must have been aware of the current charges
           before the commencement of the trial for the former
           charges; and (4) the current charges and the former
           charges must be within the jurisdiction of a single court.

        Failor, 770 A.2d at 314.

Shull, 811 A.2d at 4 (citations modified).

        Sparks cannot satisfy the first element of the above four-part test. As

noted by the trial court, Sparks was neither acquitted nor convicted of the

initial harassment charged filed against him in the case involving Lisa

Gluvna.     In fact, there was no summary trial at all, nor did Sparks plead

guilty to any offense. No witnesses were sworn in or called to testify and no

other     evidence   was   presented   to   Judge   Breakiron.   Notably,   the

Commonwealth did not request that the harassment charge be dismissed.

Rather, Judge Breakiron dismissed the charge.        However, it is quite clear

from the record that Judge Breakiron did so for the purpose of permitting

the Commonwealth to refile the charge as a misdemeanor simple assault

charge.    The charge was not terminated based upon any determination of

whether the Commonwealth failed to prove the charge beyond a reasonable


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doubt. Consequently, Judge Breakirons’ dismissal cannot be characterized in

any manner as an acquittal. Because Sparks’ claim fails at the first element

of the four-part test, his double jeopardy argument necessarily fails.

        Nonetheless, even if Judge Breakiron’s dismissal could be construed as

an acquittal, Sparks still would not be entitled to relief. Sparks also cannot

satisfy the fourth element of the test, which requires that the current

charges and the former charges be within the jurisdiction of a single court.

See Shull, Failor, supra. It is well-settled that “the compulsory joinder rule

does not apply when the prior conviction [or acquittal] is on summary

offenses and the pending charges are for misdemeanors[.]” Shull, 811 A.2d

at 4.    This is because summary offenses lie within the jurisdiction of the

magisterial district judge, while misdemeanors are in the jurisdiction of the

court of common pleas. As we explained in Shull:

        a conviction [or acquittal] on a summary offense does not bar
        the subsequent trial of a misdemeanor or felony charge. This is
        not to say that the compulsory joinder rule does not apply to
        summary offenses in any context. A conviction on a summary
        offense will bar subsequent prosecution of another summary
        offense charge because the charges are both within the
        jurisdiction of a single court, in that case the [district magisterial
        court.]

Id. at 5.

        Thus, even if Sparks had been acquitted or convicted of the summary

harassment charge that originally was filed against Sparks, the subsequent

prosecution of him for simple assault in the court of common pleas would




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not be barred by § 110 because the charges are not within the jurisdiction of

a single court.

      In sum, Sparks’ double jeopardy claim pursuant to 18 Pa.C.S. § 110

fails because Sparks cannot satisfy the first or the fourth of the four-part

test that we reiterated in Shull. Consequently, the trial court did not err in

denying his motion.

      Order affirmed. Case remanded for trial. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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