J-S61039-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    Appellant            :
                                         :
                    v.                   :
                                         :
JIMMY JUNIOR RODRIGUEZ,                  :
                                         :
                    Appellee             :     No. 585 MDA 2015

                Appeal from the Order Entered March 2, 2015,
             in the Court of Common Pleas of Lycoming County,
            Criminal Division, at No(s): CP-41-CR-0000214-2012

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

MEMORANDUM BY STRASSBURGER, J.:          FILED NOVEMBER 16, 2015

      The Commonwealth appeals from the order entered on March 2, 2015

which granted in part and denied in part a motion to dismiss charges filed by

Jimmy Junior Rodriguez (Rodriguez).    We reverse the portion of the order

that granted Rodriguez’s motion and remand for proceedings consistent with

this memorandum.

      The background underlying this matter was summarized by the trial

court as follows.

            The parties do not dispute the relevant facts.        On
      November 29, 2011, a Penn College student reported that his
      father’s 1993 Honda Civic was stolen from a Penn College
      parking lot. On December 2, 2011, police officers from the
      Pocono Mountain Regional Police were dispatched to 4365
      Memorial Boulevard, Tobyhanna, Monroe County, PA in reference
      to a suspicious vehicle.    The homeowner at that residence
      reported a vehicle on her property that did not belong there.
      The police ran the registration and found that the vehicle was



*Retired Senior Judge assigned to the Superior Court.
J-S61039-15


     the 1993 Honda Civic that had been reported stolen from the
     Penn College parking lot.

           On December 4, 2011, the Pocono Mountain Regional
     Police filed a criminal complaint against [Rodriguez] in Monroe
     County charging him with receiving stolen property and
     conspiring to receive stolen property with two other individuals.
     [Rodriguez] waived his preliminary hearing on December 7,
     2011 and agreed to cooperate and testify against his co-
     conspirators in exchange for a recommendation for [Accelerated
     Rehabilitative Disposition (ARD)] on one count and dismissal of
     the other count.

            On December 9, 2011, the Penn College police filed a
     criminal complaint against [Rodriguez] in Lycoming County
     charging him with theft by unlawful taking, conspiracy to commit
     theft by unlawful taking, receiving stolen property and driving
     under suspension [(DUS)] related to the theft of the 1993 Honda
     Civic from the Penn College parking lot.

           When [Rodriguez] appeared for his co-conspirators’
     preliminary hearing in Monroe County on January 18, 2012, he
     was informed that their charges were going to be transferred to
     Lycoming County.

           On March 1, 2012, [Rodriguez] filed a motion to enforce
     the agreement for ARD in Monroe County.

           In connection with the Lycoming County case, on April 9,
     2012, [Rodriguez] filed a motion to transfer the case to the
     Court of Common Pleas of Monroe County.

           On May 16, 2012, the Monroe County Court of Common
     Pleas granted [Rodriguez’s] motion to enforce the agreement for
     ARD. The Commonwealth appealed, but was unsuccessful in
     overturning that decision. [Commonwealth v. Rodriguez, 81
     A.3d 999 (Pa. Super. 2013) (unpublished memorandum), appeal
     denied, 84 A.3d 1063 (Pa. 2014)].

          On June 21, 2012, [the Lycoming County trial court]
     denied [Rodriguez’s] motion to transfer the Lycoming County
     charges to Monroe County.




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           On June 10, 2014, [Rodriguez] was placed on ARD for six
     months in Monroe County for the crime of conspiracy to commit
     receiving stolen property.

           On September 8, 2014, [Rodriguez] filed his motion to
     dismiss the Lycoming County charges [pursuant to both the
     compulsory joinder rule, 18 Pa.C.S. § 110, and the prohibition
     against double jeopardy].

Trial Court Opinion, 3/2/2015, at 1-3.

     The trial court heard argument on that motion and concluded that the

provisions of section 110,1 the compulsory joinder rule, do not apply in this

case “because the former prosecution did not result in an acquittal or

conviction as defined in § 109 and the prosecutions did not occur within the

same judicial district as required for subparagraph (ii). Id. at 4. Instantly,

there is no question that the Monroe County prosecution did not result in an




1
  In Commonwealth v. Fithian, 961 A.2d 66 (Pa. 2008), our Supreme
Court set forth the four required elements of the compulsory joinder test:

     (1) the former prosecution must have resulted in an acquittal or
     conviction;

     (2) the current prosecution is based upon the same criminal
     conduct or arose from the same criminal episode as the former
     prosecution;

     (3) the prosecutor was aware of the instant charges before the
     commencement of the trial on the former charges; and

     (4) the current offense occurred within the same judicial district
     as the former prosecution.

Commonwealth v. George, 38 A.3d 893, 896 (Pa. Super. 2012).


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acquittal or conviction; thus, the first element of the compulsory joinder test

was not satisfied.

      However, the trial court entered an order granting the motion to

dismiss in part, concluding that “double jeopardy principles preclude the

Commonwealth from proceeding against [Rodriguez] on any charges that

could be considered the ‘same offense’ as the charges from Monroe County.”

Id. at 7-8. Thus, the trial court dismissed the Lycoming County charges of

theft by unlawful taking, criminal conspiracy, and receiving stolen property.

The trial court denied the motion with respect to DUS.2

      The Commonwealth filed a motion for reconsideration from that order,

which was denied. On March 31, 2015, the Commonwealth timely filed an

appeal from the trial court order dismissing the charges.            Both the

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

      On appeal, the Commonwealth argues that principles of double

jeopardy do not bar the Lycoming County prosecution in this case.

Commonwealth’s Brief at 16.



2
  In its statement of jurisdiction, the Commonwealth states that this is an
appeal pursuant to 42 Pa.C.S. § 742 (“The Superior Court shall have
exclusive appellate jurisdiction of all appeals from final orders of the courts
of common pleas…”). Commonwealth’s Brief at 4. Even though the DUS
charge remains pending, we agree with the Commonwealth this order is final
with respect to the charges that were dismissed. See Commonwealth v.
Karetny, 880 A.2d 505, 512 (Pa. 2005) (“[T]he [C]ommonwealth is correct
that an order quashing a charge is unquestionably ‘final’ as to that
charge….”).


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     We set forth our well-settled standard of review. “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….” Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa.

Super. 2008) (citations and quotations omitted).

           The Double Jeopardy Clause of the Fifth Amendment to the
     United States Constitution protects an individual against
     successive punishments and successive prosecutions for the
     same criminal offense.      [A]t the heart of double jeopardy
     jurisprudence is the requirement that an individual demonstrate
     … he … has been subjected to the risk of a trial on the merits. In
     Pennsylvania, jeopardy does not attach and the constitutional
     prohibition against double jeopardy has no application until a
     defendant stands before a tribunal where guilt or innocence will
     be determined.

Id. at 780-81 (citations and quotations omitted). Furthermore,

             [t]he double jeopardy prohibition “is often described as a
     universal principle of reason, justice and conscience.”
     Commonwealth v. Bolden, [] 373 A.2d 90 ([Pa.] 1977)
     (citations omitted). Bolden continues:

           Double jeopardy policy is implicated in a variety of
           procedural contexts. In each of these contexts, the
           policy against multiple trials has been recognized as
           central to the double jeopardy clause. The critical
           consideration is that a defendant should be forced to
           ‘run the gauntlet’ of a criminal prosecution only once
           for a single offense. A criminal prosecution imposes
           severe psychological, physical and economic burdens
           on the accused. It is morally wrong for the
           government to impose these hardships on an
           individual more than once for a single offense. The
           double jeopardy prohibition stems from this moral
           judgment which is deeply held by our society.



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     Bolden, [] 373 A.2d at 104.

           “Under the Double Jeopardy Clauses of both the United
     States and Pennsylvania Constitutions, as well as under the
     Pennsylvania Crimes Code, a second prosecution for the same
     offense after acquittal is prohibited.” Commonwealth v.
     Gibbons, [] 784 A.2d 776 (2001) (citing U.S. Const. amend. V;
     Pa. Const. art. I, § 10; 18 Pa. Cons.Stat. § 109(1)).

Commonwealth v. DeLong, 879 A.2d 234, 238-39 (Pa. Super. 2005)

(footnote omitted).

     Instantly, Appellant was admitted into an ARD program in Monroe

County.   “ARD … is a pretrial disposition of certain cases, in which the

attorney for the Commonwealth agrees to suspend prosecution for an

agreed upon period of time in exchange for the defendant’s successful

participation in a rehabilitation program, the content of which is to be

determined by the court and applicable statutes.” Commonwealth v. Lutz,

495 A.2d 928, 931 (Pa. 1985).        Furthermore, “[w]hile it is clear that

admission into an ARD program generally is not equivalent to a conviction, it

equally is clear that the successful completion of such a program is not

consistent with a finding of innocence.” Commonwealth v. Bowser, 624

A.2d 125 (Pa. Super. 1993).

      Based on the foregoing, Appellant has not been convicted, acquitted,

or even prosecuted for this offense in Monroe County. Thus, principles of

double jeopardy, which include a prohibition against successive prosecutions

for the same offense, are not at issue here. Accordingly, we hold the trial



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court erred in dismissing the charges against Appellant for conspiracy, theft

by unlawful taking, and RSP.

     Order reversed in part.    Case remanded for proceedings consistent

with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 11/16/2015




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