J-S71039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ROSHA CHARLES WILLIAMS

                            Appellant                    No. 837 WDA 2015


                   Appeal from the Order Entered May 8, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000749-2014


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

MEMORANDUM BY OTT, J.:                                  FILED MARCH 08, 2016

        Rosha Charles Williams appeals from the order entered May 8, 2015,

in the Erie County Court of Common Pleas, denying his pre-trial motion to

dismiss charges of persons not to possess firearms, possession of a firearm

without a license, prohibited offensive weapons, and disorderly conduct,1

based on collateral estoppel.        On appeal, Williams contends the trial court

erred in denying his motion to dismiss because a determinative fact in his

case has already been decided in his favor by a parole board hearing

examiner. For the reasons that follow, we quash this appeal.



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1
    See 18 Pa.C.S. §§ 6105, 6106, 908, and 5503(a)(4), respectively.
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       The facts and procedural history underlying Williams’ appeal are as

follows.   On October 12, 2013, Williams was at Dowling’s Tavern in Erie,

Pennsylvania, where he got into an argument with several bar patrons. He

left the bar, but soon returned with another individual.           Upon his return,

Williams began to fight with the same group again. He then pulled a small

shotgun from his pants and pointed it at the floor. Bar security was able to

remove Williams from the bar, and he fled in an SUV.

       Williams     was    subsequently        arrested   and   charged   with   the

aforementioned crimes. Because Williams was on state parole at the time of

his arrest, a parole detainer was lodged against him.             Williams claims a

Gagnon II parole violation hearing was held on December 20, 2013,2 at the

conclusion of which the hearing examiner issued the following findings: (1)

probable cause was established for the condition prohibiting alcohol

possession, and (2) no probable cause was established for the condition

prohibiting entering establishments that sell alcohol. See Motion to Dismiss,

4/1/2015, Exhibit B (Hearing Examiner’s Finding, 12/20/2013).




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2
  The trial court explained in its opinion that Williams failed to provide
evidence that the Gagnon II hearing, which he claims is dispositive,
actually related to the charges at issue. See Trial Court Opinion, 1/20/2016,
at 3. The court noted the written “finding” upon which Williams relies failed
to include a docket number or any reference to the present charges, and
Williams did not call parole hearing officer to testify. Id.



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       Meanwhile, Williams’ criminal case proceeded to trial, first on the

charge of persons not to possess firearms.3 On February 18, 2015, the jury

indicated it was deadlocked, and the trial court declared a mistrial.

       Thereafter, on April 1, 2015, Williams filed a motion to dismiss all the

pending charges based on collateral estoppel.      Specifically, he argued the

parole hearing officer’s finding of “no probable cause” definitively established

that he was not the individual that brandished a firearm inside Dowling’s

Tavern on October 12, 2013, and the Commonwealth was precluded from

re-litigating the issue. See Motion to Dismiss, 4/1/2015, at 2-3. The trial

court conducted a hearing on May 8, 2015, at the conclusion of which it

denied the motion to dismiss without an opinion.           This timely appeal

followed.

       On May 20, 2015, the trial court directed Williams to file a concise

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

Williams did not comply with the court’s directive, and, on June 19, 2015,

the trial court issued a memorandum opinion concluding all of Williams’

issues were waived. Thereafter, on July 15, 2015, counsel for Williams filed

a motion seeking permission to file a concise statement nunc pro tunc,




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3
  The remaining charges were severed due to the fact that Section 6105
required evidence that Williams had prior convictions. See N.T., 2/17/2015,
at 4-7.



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averring he never received the court’s concise statement order.             The trial

court denied the motion.

       When Williams’ appeal first appeared before this panel, we found

counsel’s failure to file a court-ordered concise statement constituted

ineffectiveness per se. See Order, 12/21/2015, at 1. Accordingly, pursuant

to Pa.R.A.P. 1925(c)(3), we remanded the case to the trial court to file an

opinion in response to the untimely concise statement. The court complied

with our directive, and the appeal is now ready for disposition.

       Preliminarily,    however,     “we      must   determine   whether   we   have

jurisdiction over this appeal.” Commonwealth v. Taylor, 120 A.3d 1017,

1021 (Pa. Super. 2015). See Commonwealth v. Blystone, 119 A.3d 306,

311 (Pa. 2015) (appellate court may raise issue of jurisdiction sua sponte)

       Pennsylvania Rule of Criminal Procedure 587 provides that if a trial

court denies a pretrial motion to dismiss based upon double jeopardy

grounds and does not find the motion frivolous, the order is immediately

appealable as a collateral order.4 See Pa.R.Crim.P. 587(B)(6). However, if

the court determines the motion is frivolous, the defendant’s only recourse is




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4
  “The doctrine of collateral estoppel is a part of the Fifth Amendment's
guarantee against double jeopardy and is applicable to the states via the
Fourteenth Amendment.” Commonwealth v. States, 891 A.2d 737, 742
n.7 (Pa. Super. 2005), aff'd, 938 A.2d 1016 (Pa. 2007).




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to file a petition for review, pursuant to Pennsylvania Rule of Appellate

Procedure 1573. Rule 1573 provides, in pertinent part:

      (a) General rule. Any party seeking review of a frivolousness
      determination by a court of common pleas under Pennsylvania
      Rule of Criminal Procedure 587 shall file a petition for review in
      the appellate court having jurisdiction over the matter. Review
      of a frivolousness determination under Pennsylvania Rule of
      Criminal Procedure 587 shall be governed by this chapter and
      ancillary provisions of these rules, except as otherwise
      prescribed by this rule. The time for filing is provided for in
      Pa.R.A.P. 1512(a)(1).

Pa.R.A.P. 1573(a).

      Here, the trial court determined Williams’ claim is “frivolous and

therefore not appealable as of right” because it was “not supported by facts

or law.”   Trial Court Opinion, 1/20/2016, at 3, 5.    First, the court found

Williams failed to provide evidentiary support for his contention that the

issue of whether he entered Dowling’s Tavern was conclusively determined

at his parole hearing. As the court explained:

            The record is devoid of any evidence of what docket
      number the alleged Gagnon II hearing occurred. There is no
      evidence of any finding by a parole hearing officer. The parole
      hearing officer did not testify. There is no evidence that this
      hearing or finding related to the present case.

Id.

      Second, the court concluded Williams’ claim was “legally untenable.”

Id.   Relying upon Commonwealth v. Cosgrove, 629 A.2d 1007 (Pa.




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Super. 1993), appeal denied, 648 A.2d 788 (Pa. 1994),5 the trial court

opined:

              The factual determination alleged by [Williams] was made
       by a hearing examiner rather than a judge or jury and the
       rationale behind Cosgrove applies. To find the Commonwealth
       is collaterally estopped from bringing a case to trial based on a
       finding in a parole violation hearing would “undesirably alter the
       criminal trial process by permitting informal revocation
       determination to displace the intended fact finding function at
       trial” and would “undermine the function of the criminal trial


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5
   In Cosgrove, the defendant was arrested after he stabbed the victim
during a fight. Cosgrove, supra, 629 A.2d at 1008-1009. Because the
defendant was on probation at the time of his arrest, he proceeded to a
probation violation hearing, at the conclusion of which the trial court did not
find the defendant violated his probation. Specifically, the court concluded it
“was unable to determine who was the aggressor in the confrontation.” Id.
at 1009. Thereafter, the defendant filed a motion to dismiss the criminal
charges, arguing the Commonwealth was collaterally estopped from
proceeding with the prosecution based on the court’s finding in the
revocation hearing. Id. at 1009-1010. The trial court refused to dismiss the
charges and the defendant appealed.

     On appeal, a panel of this Court held that principles of collateral
estoppel did not bar the subsequent prosecution:

       We hold that in order to ensure that the function of a criminal
       trial is not usurped by that of the probation revocation hearing,
       the Commonwealth may prosecute an individual on criminal
       charges even where a court has previously determined that it
       will not revoke the individual's probation based upon those
       charges.     The decision rendered at a probation revocation
       hearing may not bind a subsequent factfinder at a criminal trial
       whose primary function is to determine the presence or absence
       of proof of guilt beyond a reasonable doubt.

Id. at 1011.




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       process.”  Cosgrove, 629 A.2d at 1011, citing Lucido v.
       Superior Court, 795 P.2d 1223 ([Cal.] 1990).

              Separately, a determination by a non-judicial hearing
       officer at a Gagnon II hearing is not a final judgment. Instead,
       a final judgment about whether a defendant is in violation of
       supervision is made by a judge, who then has the authority to
       revoke and/or re-sentence a defendant.          It is the judge’s
       determination which is final.

Id. at 4-5.

       Because the trial court determined the collateral estoppel claim is

frivolous, the order denying Williams’ motion to dismiss is not appealable as

a   collateral   order.     See Taylor,        supra,   120   A.3d   at   1022-1023;

Pa.R.Crim.P. 587. Further, because Williams did not file a petition for review

pursuant to Pa.R.A.P. 1573(a), we are precluded from considering whether

the trial court’s frivolousness determination was warranted.6 Consequently,

we are compelled to quash this appeal.7
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6
  In Taylor, supra, similar to the instant matter, a panel of this Court
remanded the case to the trial court for a determination of whether the
defendant’s pretrial double jeopardy claim was frivolous. See Taylor,
supra, 120 A.3d at 1023. The panel noted, however, the fact it retained
jurisdiction over the appeal “would not excuse [the defendant’s] non-
compliance with Criminal Rule 587(6)(5) (sic) and Appellate Rule 1573 in the
event the trial court determines his double jeopardy motion to be frivolous.”
Id. at 1023 n.12. The same is true here.

     Furthermore, even if we were to consider the trial court’s frivolousness
determination, we would deny the petition for review based on the well-
reasoned opinion of the trial court. See Trial Court Opinion, 1/20/2016, at
2-5.
7
 We note that Williams’ collateral estoppel claim is not lost, but rather, he
may still challenge the court’s denial of his motion to dismiss after his retrial.
See Commonwealth v. Lee, 416 A.2d 503, 504-505 (Pa. 1980) (“We
(Footnote Continued Next Page)


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      Appeal quashed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2016




                       _______________________
(Footnote Continued)

believe that a defendant may choose to proceed to trial and if convicted, still
challenge the propriety of the pretrial motion to dismiss on double jeopardy
grounds on appeal.”).



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