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                           2016 PA Super 65

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

JEREMY TRAVIS WOODARD

                      Appellee                 No. 103 WDA 2015


               Appeal from the Order December 11, 2014
           In the Court of Common Pleas of Cambria County
          Criminal Division at No(s): CP-11-CR-0001247-2014


                                  *****

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

KEITH REED

                      Appellee                 No. 104 WDA 2015


               Appeal from the Order December 11, 2014
           In the Court of Common Pleas of Cambria County
          Criminal Division at No(s): CP-11-CR-0001246-2014


                                  *****

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

JOSHUA N. CAMBRIC
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                            Appellee                             No. 105 WDA 2015


                     Appeal from the Order December 11, 2014
                 In the Court of Common Pleas of Cambria County
                Criminal Division at No(s): CP-11-CR-0001269-2014


BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*

OPINION BY LAZARUS, J.:                                          FILED MARCH 15, 2016

        The Commonwealth of Pennsylvania seeks review of an order denying

its motion to consolidate pursuant to Pa.R.Crim.P. 582. For the reasons set

forth herein, we quash the appeal.1

        The Commonwealth charged Joshua N. Cambric, Jeremy Woodard, and

Keith Reed with homicide, conspiracy and other offenses related to the

killing of Tony Phillips on March 30, 2014, in Johnstown.                 On October 9,

2014,     the    Commonwealth       filed      a   motion   to    consolidate   based   on

Pa.R.Crim.P. 582(A)(2), which provides, “[d]efendants charged in separate

indictments or informations may be tried together if they are alleged to have

participated in the same act or transaction or in the same series of acts or

transactions constituting an offense or offenses.” The trial court denied the

motion on December 11, 2014. In reaching its decision, the trial court relied

on Rule 583, which provides, “[t]he court may order separate trials of
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 We have consolidated the appeals because they all involve the same order.
See Pa.R.A.P. 513.



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offenses or defendants, or provide other appropriate relief, if it appears that

any party may be prejudiced by offenses or defendants being tried

together.” The court specifically found that “Defendants may be prejudiced

by being tried together.” Trial Court Order, 12/11/14, at 1.

      The Commonwealth filed a motion for reconsideration, which the trial

court denied. The Commonwealth then filed a notice of appeal in each case,

certifying that the orders denying joinder will terminate or substantially

handicap the prosecution.

      The threshold question in this case is whether this court possesses

appellate jurisdiction over the order from which the Commonwealth seeks

review. Pennsylvania Rule of Appellate Procedure 311(d) provides:

      In a criminal case, under the circumstances provided by law, the
      Commonwealth may take an appeal as of right from an order
      that does not end the entire case where the Commonwealth
      certifies in the notice of appeal that the order will terminate or
      substantially handicap the prosecution.

Pa.R.A.P. 311(d) (emphasis added). Rule 311(d) is often invoked in appeals

addressing the admission or exclusion of evidence.        Commonwealth v.

White (White I), 818 A.2d 555, 558 (Pa. Super. 2003) aff'd in part, rev'd in

part, 910 A.2d 648 (Pa. 2006) (White II).          In addition to evidentiary

rulings, appellate courts have recognized the right of the Commonwealth to

appeal several types of non-evidentiary pretrial orders.       Id.   See e.g.,

Commonwealth v. Buonopane, 599 A.2d 681 (Pa. Super. 1991) (order

precluding Commonwealth from seeking death penalty); Commonwealth v.


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Johnson, 669 A.2d 315 (Pa. 1995) (order transferring case from criminal to

juvenile court); and, Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998)

(order denying Commonwealth request for continuance to secure witness).

      Although Rule 311(d) permits an appeal as of right, prior case law has

continually placed limits on the scope of this right as it pertains to non-

evidentiary   issues.    Thus,   the     court   will   not   “accept   blindly   the

Commonwealth’s certification of substantial hardship” when appeal is sought

for non-evidentiary interlocutory orders.        White I, supra at 558.           As

illustrated by the White cases, the law regarding Commonwealth appeals

under Rule 311(d) is far from settled.

      The White cases involved the Commonwealth’s appeal of two separate

pretrial rulings: 1) the denial of a recusal motion; and 2) the denial of the

Commonwealth’s request to have a jury determine the degree of guilt of a

criminal defendant who pled guilty to homicide.          Id. at 557.     This Court

quashed the appeal as it pertained to recusal, but found the jury request

appealable and reversed the order of the trial court on this issue alone. Id.

at 563. Regarding the rationale for distinguishing the issues based on the

nature of the order, this Court stated as follows:

      [W]hen issues other than those evidentiary in nature are raised,
      we may pause to consider the propriety of the Commonwealth’s
      certification. No doubt this is due in part to a concern that
      invocation of Rule 311(d) not become the norm, but rather
      remain an exception to be utilized only where necessary.




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Id.   at   559.        Moreover,      given    the   constitutional   basis2   of   the

Commonwealth’s asserted right to a jury trial, the denial of this right was

found to constitute a “substantial handicap” under Rule 311(d). Id. at 560-

61.

       An equally divided Supreme Court revisited these issues and ultimately

reversed this Court regarding the use of Rule 311(d) to appeal the trial

judge’s order refusing to recuse herself. However, a 4-2 majority affirmed

that the denial of a jury trial request for a degree-of-guilt determination was

appealable under Rule 311(d). In the plurality opinion, Justice Eakin (joined

by Justices Castille and Newman) would have overruled prior precedent in

Commonwealth v. Cosnek, 836 A.2d 871 (Pa. 2003), which limited the

scope of Rule 311(d) to evidentiary rulings made by the trial court that

substantially interfered with the presentation of the Commonwealth’s case.

The plurality found that the rule authorizes the Commonwealth to appeal

any pre-trial order that has the potential to affect the Commonwealth’s

ability to meet its burden of proof. White II, supra at 655. Chief Justice

Cappy (joined by Justice Baer) opined that the doctrine of stare decisis, and

the principle of the “final order rule” militated against reversal. Id. at 666-

67 (Cappy, C.J., dissenting). Justice Saylor filed a concurring and dissenting
____________________________________________


2
 Pa. Const. art I, § 6 (amended 1998) (“Furthermore, in criminal cases the
Commonwealth shall have the same right to trial by jury as does the
accused.”).



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opinion, joining the Opinion of the Court regarding the denial of a jury

request, but diverging regarding the motion to recuse. Upholding precedent

limiting the scope of Rule 311(d), Justice Saylor explicitly adopted this

Court’s rationale in the decision below. Id. at 662-63 (Saylor, J., dissenting)

(“I would affirm the decision of the Superior Court majority based largely on

the reasoning that it supplied.”).             Justice Saylor further noted that after

Cosnek, the Supreme Court recognized:

       There are, of course, other types of orders that Cosnek did not
       address, but which may also be appealable under Rule 311(d).
       See e.g., Commonwealth v. Boos, 620 A.2d 485 (Pa. 1993)
       (order reinstating appellee into ARD program was immediately
       appealable as it had the effect of terminating DUI charge);
       Commonwealth v. Hughes, 364 A.2d 306, 308 n.2 (Pa. 1976)
       (order quashing some, but not all, of charges against defendant
       was immediately appealable).

Commonwealth v. Shearer, 882 A.2d 462, 466-67 n.6 (Pa. 2005).

       Weighing in on this issue, our Court has stated:

       While the Commonwealth’s good faith certification under Rule
       311(d) is entitled to some deference, this Court need not accept
       its good faith certification in every case. In White [II], for
       example, an evenly divided Supreme Court could not agree
       whether an order denying a recusal motion substantially
       handicapped the Commonwealth’s prosecution.         The divided
       opinion left standing this Court’s opinion that the denial of a
       recusal motion was not appealable pursuant to Rule 311(d).

Commonwealth v. Wright, 99 A.3d 565, 568 n.1 (Pa. Super. 2014).3
____________________________________________


3
 Adding to the problematic nature of White II is the fact the Justices were
equally divided 3-3 on the issue of whether the denial of a recusal motion is
(Footnote Continued Next Page)


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      This division among Justices of the Supreme Court regarding the

motion to recuse in White II leaves open significant questions regarding the

circumstances under which the Commonwealth may seek appeal of an

interlocutory order under Rule 311(d).

      Despite the questions left open by our Supreme Court in White II, we

are guided by prior decisions related to interlocutory review of motions for

joinder or severance.          In the specific context of an interlocutory order

granting the severance of two criminal informations, the Court found no

jurisdiction to consider a Commonwealth appeal.             Commonwealth v.

Smith, 544 A.2d 943, 945 (Pa. 1988).

      The order here appealed from granted the severance of two
      criminal informations. In Commonwealth v. Saunders, 394
      A.2d 522 (Pa. 1978), we addressed the appealability of such an
                       _______________________
(Footnote Continued)

appealable under Rule 311(d), thus allowing this Court’s decision on the
issue to stand. Nevertheless, four Justices held on the merits that the trial
judge should have recused herself. Accordingly, even though this Court’s
determination that an order denying recusal is not appealable remains the
law, the Supreme Court’s disposition paragraph in White II provides:

      Accordingly, we reverse the quashal of the Commonwealth’s
      appeal from the denial of its recusal motion and remand for the
      appointment of another judge in this matter. We affirm the
      order reversing the denial of the Commonwealth’s request for a
      jury at White’s degree of guilt hearing.

      Order reversed in part and affirmed in part.        Case remanded.
      Jurisdiction relinquished.

White II, supra at 662.




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      order and had no problem in concluding that such an order is
      interlocutory and thus not appealable. The reasoning for our
      decision was that the Commonwealth was free to seek conviction
      on both counts in two separate trials. Thus, the finality aspect
      and the ensuing prejudice inherent in granting a suppression
      motion is not present when faced with a severance order.

Smith, 544 A.2d at 945. Although the appeal before us presents an issue

related to joinder of informations, and not severance, the same logic applies.

Indeed, we “cannot disassociate the standard for consolidation pursuant to

Rule 582 and severance pursuant to Rule 583.             They are the same.”

Commonwealth’s Brief, at 9.

      Applying the reasoning from Smith, an order denying joinder, like an

order granting severance, is interlocutory and thus not appealable.        Here,

the Commonwealth is free to seek conviction on all counts, against each

defendant, in three separate trials.     Therefore, denial of the motion for

joinder does not terminate or substantially handicap the prosecution and is

not appealable under Rule 311(d).           Id.   To expand Rule 311(d) to

encompass such interlocutory review “would be to disturb the orderly

process of litigation. Strict application of the Rule assures that trials will go

forward as scheduled.”      White I, supra at 559 (explaining why order

denying motion to recuse not appealable under Rule 313(d)).

      In conclusion, the Commonwealth’s appeal of the order denying its

Motion to Consolidate must be quashed because the order is not appealable

under Rule 311(d).




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      Appeal quashed; matter remanded for further proceedings consistent

with this opinion. Jurisdiction relinquished.

      Judge Stabile joins the Opinion.

      Justice Fitzgerald concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2016




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