J-S83036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                       Appellant          :
                                          :
                       v.                 :
                                          :
ROBERT WILLIAM DIBBLE,                    :
                                          :
                       Appellee           :    No. 594 WDA 2016

                   Appeal from the Order March 28, 2016
             in the Court of Common Pleas of McKean County,
            Criminal Division at No(s): CP-42-CR-0000583-2015

BEFORE:     FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED JANUARY 27, 2017

      The Commonwealth of Pennsylvania appeals from the order granting

with prejudice its March 28, 2016 motion for nolle prosequi. We affirm.

      On December 4, 2015, Robert William Dibble was charged with two

counts of failure to comply with sexual offender registration. In the criminal

complaint and accompanying affidavit of probable cause, the Commonwealth

averred that Dibble had been previously convicted of a sexual offense in New

York and had failed to notify authorities in either New York or Pennsylvania

that he had been residing in McKean County from August to October of

2016. A preliminary hearing was held on November 4, 2015, and all charges

were held for court.

      Dibble filed a petition for writ of habeas corpus on December 23, 2015,

alleging that the Commonwealth failed to present a prima facie case at his



*Retired Senior Judge assigned to the Superior Court.
J-S83036-16


preliminary hearing.        Specifically, Dibble argued that he had not been

convicted in New York of a sexual offense requiring registration and

challenged the Commonwealth’s failure to produce a certified copy of

Dibble’s alleged New York conviction both at his preliminary hearing and in

the discovery packet provided to him on November 25, 2015. Petition for

Writ of Habeas Corpus, 12/23/2015, at ¶ 3. Accordingly, Dibble requested

dismissal of all charges.

      On March 28, 2016, after several continuances, the trial court held a

hearing on Dibble’s motion. At that time, the Commonwealth filed a motion

for nolle prosequi, in which it averred that it was unable to move forward

with the case against Dibble because it was unable to obtain “admissible

documentation of [Dibble’s] conviction from New York State.” Trial Court

Opinion, 6/23/2016, at 1.

            [Dibble] objected to the motion for nolle pros, requesting
      that prejudice attach to it. Further, [Dibble] stated that [he] had
      been incarcerated for 158 days and that it has been 96 days
      since [his] petition for [writ of] habeas corpus was filed and
      within that time the Commonwealth had not obtained evidence
      of the New York conviction. After [the] hearing, the court
      granted the Commonwealth’s motion … but added “with
      prejudice.” The Commonwealth objected to this “with prejudice”
      addition to the nolle pros.           On April 26, 2016, the
                                        [1]
      Commonwealth filed an … appeal of the court’s order.

Id. at 1-2 (unnecessary capitalization omitted).

1
  Although the order granting the Commonwealth’s request for a nolle pros
with prejudice is a final order, the Commonwealth has certified that the
court’s order terminates or substantially handicaps its prosecution of
Appellee. See Pa.R.A.P. 311(d).


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      Both the Commonwealth and the trial court have complied with the

mandates of Pa.R.A.P. 1925.

      The Commonwealth raises one issue for our review: “whether the trial

court erred and misapplied the law where it granted the Commonwealth’s

motion for nolle prosequi, but did so with prejudice, and effectively

dismissed the criminal charges?” Commonwealth’s Brief at 2 (unnecessary

capitalization omitted). We address this claim mindful of the following.

      A nolle prosequi is a voluntary withdrawal by the prosecuting
      attorney of present proceedings on a particular bill of indictment.
      Pennsylvania Rule of Criminal Procedure 585 governs nolle
      prosequi applications, and provides in relevant part:

            Upon motion of the attorney for the Commonwealth,
            the court may, in open court, order a nolle prosequi
            of one or more charges notwithstanding the
            objection of any person.

      In evaluating a request for nolle prosequi, a court may consider
      two factors: (1) whether the Commonwealth’s reason for the
      request is reasonable; and (2) whether the defendant has a valid
      speedy trial claim. A nolle prosequi may be lifted at any time in
      the future, on appropriate motion, to revive the original charges.

Commonwealth v. Goldman, 70 A.3d 874, 878 (Pa. Super. 2013)

(citations and quotation marks omitted). “A trial court’s decision regarding a

petition for nolle prosequi will not be overturned absent an abuse of

discretion.” Commonwealth v. Reinhart, 353 A.2d 848 (Pa. 1976).

“Judicial discretion requires action in conformity with law, upon facts and

circumstances   judicially   before   the   court,   after   hearing   and   due

consideration. Consequently, the court abuses its discretion if, in resolving



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the issue for decision, it misapplies the law or [rules] in a manner lacking

reason.” Id. at 1244 (internal citations and quotation marks omitted).

      As the Commonwealth points out, the trial court’s order, granting its

motion with prejudice, effectively dismisses the charges against Appellant

with no leave for refiling. We bear in mind that

      [d]ismissal of charges is an extreme sanction that should be
      imposed sparingly and only in cases of blatant prosecutorial
      misconduct. A dismissal punishes not only the prosecutor, but
      also the public at large because the public has a reasonable
      expectation that those who have been charged with crimes will
      be fairly prosecuted to the full extent of the law. Therefore, a
      trial court should consider dismissal of charges only where the
      actions of the Commonwealth are egregious and where
      demonstrable prejudice will be suffered by the defendant if the
      charges are not dismissed.

Goldman, 70 A.3d at 881 (citations and quotation marks omitted).

      The trial court’s order granting the Commonwealth’s motion with

prejudice is the functional equivalent of a dismissal of charges, which runs

contrary to the general rule that “[a] nolle prosequi may be lifted at any

time in the future, on appropriate motion, to revive the original charges.”

Id. However, the court found the Commonwealth’s inaction in this matter

egregious and prejudicial to Dibble, such that dismissal was proper under

Goldman. The court explained its decision to grant the Commonwealth’s

petition with prejudice as follows.

             At the time the Commonwealth made its motion for nolle
      pros, this case was scheduled for trial and there was a pending
      [petition] for [writ of] habeas corpus.        Defense counsel
      vigorously asserted that the Commonwealth could not proceed to



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     trial without a proof of conviction or a certified record of the
     [New York] conviction. Further, had the hearing to address the
     petition for [writ of] habeas corpus gone forward[,] the court
     would have granted it because the Commonwealth did not have
     sufficient evidence to prevail. Therefore, [Dibble] would be
     greatly prejudiced by the Commonwealth’s request to nolle pros
     if prejudice would not attach. … Here, the Commonwealth failed
     to request a staff person from the District Attorney’s Office to
     drive to Cattaraugus County, New York, which borders McKean
     County, PA, to obtain a copy of the docket sheet for the
     conviction.     In sum, the Commonwealth failed to make
     reasonable efforts to secure a copy of the conviction or a
     certified record of the conviction and [Dibble] was prejudiced by
     the delay of the Commonwealth in filing its motion for nolle
     pros[,] … approximately 96 days after [Dibble] filed his [petition]
     for [writ of] habeas corpus.

            The Commonwealth was alerted on January 11, 2016 that
     the [petition] for [writ of] habeas corpus was based on the
     failure of the Commonwealth to produce evidence of [Dibble’s]
     New York conviction at the preliminary hearing. Not only did
     [the Commonwealth] have notice [of the reason for the petition
     for writ of habeas corpus,] but … the hearing [was scheduled for]
     February 9, 2016[,] which should have provided the
     Commonwealth with enough time to obtain proof of the New
     York conviction[.] [However, the Commonwealth] obtained a
     continuance of the habeas corpus hearing, which was
     rescheduled to March 28, 2016. The Commonwealth at the
     hearing on March 28, 2016 was again unprepared by not having
     evidence that [it was] aware was crucial to [its] defense of the
     petition for [writ of] habeas corpus, i.e. proof of the New York
     conviction in the adjacent county to McKean.                 The
     Commonwealth could have asked for a continuance but decided
     to manipulate the course of the proceedings by moving for a
     nolle pros, which was a blatant attempt to prevent the court
     from ruling on the petition for [writ of] habeas corpus because
     [the Commonwealth] could not defend it. In the meantime,
     [Dibble] had been incarcerated for 158 days, without a hearing
     to determine the status of his being in Pennsylvania. Such a
     total disregard of its obligation to obtain easily obtainable
     evidence and to move this case along is “egregious.” It is also
     prejudicial in that [Dibble] was held in custody in the McKean
     County jail during the entire period of time.



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Trial Court Opinion, 6/23/2016, at 3-4.

      It is clear from the notes of testimony that the trial court conflated the

evidence necessary to grant the Commonwealth’s petition with the evidence

necessary   to   grant Dibble’s request for       a writ   of   habeas corpus.2

Nonetheless, as the court acknowledged, “had the hearing to address the

petition for [writ of] habeas corpus gone forward[,] the court would have

granted it because the Commonwealth did not have sufficient

evidence to prevail.” Trial Court Opinion, 6/23/2016, at 3 (emphasis

added). We agree with this assessment and find no error in the trial court’s

analysis of the prejudice suffered by Dibble by the extraordinary delay in this

case. Accordingly, we cannot conclude that the court abused its discretion in

dismissing the charges in this matter. In doing so, we acknowledge that the

proper remedy would be, as defense counsel suggested at the hearing on his

petition for writ of habeas corpus, to grant Dibble’s petition and deny the

Commonwealth’s     request   for   a   nolle   pros.   However,    under   these



2
  “A petition for writ of habeas corpus is the proper means for testing a pre-
trial finding that the Commonwealth has sufficient evidence to establish a
prima facie case.” Commonwealth v. Engle, 847 A.2d 88, 90 (Pa. Super.
2004). “The question of the evidentiary sufficiency of the Commonwealth's
prima facie case is one of law[.]” Commonwealth v. Dantzler, 135 A.3d
1109, 1112 (Pa. Super. 2016) (en banc) (citation omitted). “We review a
decision to grant a pre-trial petition for a writ of habeas corpus by examining
the evidence and reasonable inferences derived therefrom in a light most
favorable to the Commonwealth.” Id. at 1111.




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circumstances, we decline to elevate form over substance and, thus, affirm

the order of the trial court.

      Order affirmed. Jurisdiction relinquished.

P.J.E. Ford Elliott joins.

Judge Shogan files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 1/27/2017




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