J-A05004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    JONATHAN C. HELD                            :
                                                :
                         Appellant              :   No. 151 WDA 2019

              Appeal from the Order Entered December 28, 2018
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0001218-2018


BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                                 FILED JUNE 10, 2020

        Appellant, Jonathan C. Held, appeals from the order denying his motion

for judgment of acquittal, which he filed following a mistrial due to a hung

jury. In this appeal, Appellant presents several challenges to the sufficiency

of the evidence presented at trial. After careful review, we quash his appeal.

        In early 2018, the Commonwealth charged Appellant with restricted

activities—conflict of interest, 65 Pa.C.S. § 1103(a); theft by unlawful taking—

moveable property (“theft of property”), 18 Pa.C.S. § 3921(a); and theft by

diversion of services, 18 Pa.C.S. § 3926(b).              The offenses related to the

general     allegation    that   Appellant,    formerly     the   elected   Sherriff   of

Westmoreland County, had commandeered taxpayer-funded employees and

resources to aid in his re-election campaign during 2015 and 2016.

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*   Retired Senior Judge assigned to the Superior Court.
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Appellant’s jury trial commenced on December 3, 2018. After all the evidence

was presented, the trial court dismissed the theft of property offense due to

insufficient evidence.      On December 7, 2018, the jury deadlocked on the

remaining charges after extensive deliberations, prompting the trial court to

declare a mistrial.

       On December 17, 2018, Appellant filed a timely post-trial motion for

judgment of acquittal.1       Therein, he presented several arguments that the

evidence presented at trial was insufficient to prove conflict of interest and

theft by diversion. The trial court heard oral argument on the motion before

denying it by order dated December 28, 2018. Appellant then filed a timely

notice of appeal from that order, and a timely, court-ordered Pa.R.A.P.

1925(b) statement. On April 11, 2019, the trial court issued its Rule 1925(a)

opinion.

       Appellant now presents the following questions for our review:

        I.    Was the evidence insufficient as a matter of law to sustain
              [a] finding of guilt [for conflict of interest], insofar as the
              Commonwealth did not prove beyond a reasonable doubt
              that … Appellant … used his office for a private pecuniary
              benefit?

       II.    Alternatively, was the evidence insufficient as a matter of
              law to sustain [a] conviction [for conflict of interest], insofar
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1 “A written motion for judgment of acquittal shall be filed within 10 days after
the jury has been discharged without agreeing upon a verdict.” Pa.R.Crim.P.
608(a)(2). “A motion for judgment of acquittal challenges the sufficiency of
the evidence to sustain a conviction on a particular charge, and is granted
only in cases in which the Commonwealth has failed to carry its burden
regarding that charge.” Commonwealth v. Andrulewicz, 911 A.2d 162,
165 (Pa. Super. 2006).

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              as assuming arguendo that … Appellant … accrued a
              pecuniary gain, the gain was de minim[i]s?

      III.    Was the evidence … insufficient as a matter of law to sustain
              the finding of guilt [for theft by diversion], insofar as the
              Commonwealth did not prove beyond a reasonable doubt
              that … Appellant … knowingly and/or intentionally diverted
              services to his own benefit?

      IV.     Did the court err[] in denying the Motion for Judgment of
              Acquittal on the grounds that the charge of [theft by
              diversion] should have been dismissed on the grounds that
              the conduct amounted to a de minim[i]s infraction under 18
              Pa.C.S. § 312?

Appellant’s Brief at 5.

      Before “reaching the merits of any appeal, this Court must first ascertain

whether the order appealed from is properly appealable. Indeed, since the

question of appealability implicates the jurisdiction of this Court, the issue may

be raised by this Court sua sponte.”      Commonwealth v. Horn, 172 A.3d

1133, 1135 (Pa. Super. 2017) (cleaned up).        “Under Pennsylvania law, an

appeal may be taken from: (1) a final order or an order certified by the trial

court as a final order; (2) an interlocutory order as of right; (3) an

interlocutory order by permission; (4) or a collateral order.”            Chase

Manhattan Mortg. Corp. v. Hodes, 784 A.2d 144, 144 (Pa. Super. 2001).

      In the statement of jurisdiction section of his brief, Appellant attempts

to invoke this Court’s jurisdiction pursuant to 42 Pa.C.S. § 742, which provides

as follows:

      The Superior Court shall have exclusive appellate jurisdiction of
      all appeals from final orders of the courts of common pleas,
      regardless of the nature of the controversy or the amount
      involved, except such classes of appeals as are by any provision


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       of this chapter within the exclusive jurisdiction of the Supreme
       Court or the Commonwealth Court.

42 Pa.C.S. § 742 (emphasis added).

       A final order is one that 1) disposes of all claims and of all parties, or 2)

is designated a final order by the trial court pursuant to Pa.R.A.P. 341(c). See

Pa.R.A.P. 341(b). The order under review, which denied Appellant’s post-trial

motion for judgment of acquittal, did not dispose of any party or any claim.

Indeed, a mistrial was declared, from which a new trial follows as a matter of

course.2    Furthermore, there is no indication in record that the trial court

designated that order as a final order pursuant to Rule 341(c). Thus, the

order was not final and, consequently, not appealable as such.           However,

because we are raising jurisdictional concerns in this case sua sponte, we

further consider whether this appeal is permitted as an interlocutory order

appealable as of right, as an interlocutory order appealable by permission, or

as a collateral order.

       Rule 311 of the Pennsylvania Rules of Appellate Procedure enumerates

the various interlocutory orders that are appealable as of right. The order in

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2   This Court has previously recognized that:

       After a mistrial due to a deadlocked jury, a new trial follows as of
       course. Conversely, when a court awards a new trial, that trial
       occurs only because the court issued an order granting it.
       Importantly, while an award of a new trial is immediately
       appealable under Pa.R.A.P. 311(a)(6), a mistrial and any new trial
       arising therefrom is not.

Kronstain v. Miller, 19 A.3d 1119, 1124 (Pa. Super. 2011) (cleaned up).

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question does not satisfy the criteria for any provision of Rule 311. The only

provision which ostensibly could be construed as applying to the procedural

posture of this case is that of Rule 311(a)(6), which provides that an appeal

may be taken from an

       order in a civil action or proceeding awarding a new trial, or an
       order in a criminal proceeding awarding a new trial where the
       defendant claims that the proper disposition of the matter would
       be an absolute discharge or where the Commonwealth claims that
       the trial court committed an error of law.

Pa.R.A.P. 311(a)(6).

       However, in rejecting the applicability of Rule 311(a)(6) in these

circumstances, we find persuasive this Court’s reasoning for quashing the

appeal in Commonwealth v. Wardlaw, 225 A.3d 1154 (Pa. Super. 2019)

(unpublished memorandum).              In that case, Wardlaw argued that Rule

311(a)(6) applied, as here, to an order denying a motion for judgment of

acquittal following a mistrial due to a hung jury.3 Writing for the Court, the

Honorable Mary Jane Bowes indicated that because a new trial follows as a

matter of course from a mistrial due to a hung jury, a new trial had not been

‘awarded’ within the meaning of Rule 311(a)(6). See Commonwealth v.

Wardlaw, No. 1716 WDA 2018, unpublished memorandum at 4 (Pa. Super.

filed December 12, 2019).           We agree with Judge Bowes’ analysis and,

therefore, conclude that the interlocutory order under review does not satisfy
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3 Unpublished, non-precedential memorandum decisions of the Superior Court
filed after May 1, 2019, may be cited for their persuasive value. See Pa.R.A.P.
126(b)(2).


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Rule 311(a)(6), nor any other category of interlocutory orders that are

appealable as of right.

      Next, we consider whether the order is an interlocutory order appealable

by permission.
      When a court or other government unit, in making an interlocutory
      order in a matter in which its final order would be within the
      jurisdiction of an appellate court, shall be of the opinion that such
      order involves a controlling question of law as to which there is
      substantial ground for difference of opinion and that an immediate
      appeal from the order may materially advance the ultimate
      termination of the matter, it shall so state in such order. The
      appellate court may thereupon, in its discretion, permit an appeal
      to be taken from such interlocutory order.

42 Pa.C.S. § 702(b) (emphasis added).

      Instantly, the order in question does not contain any language

resembling the requirements of Section 702(b) for certification of the order

for immediate appellate review. See Order, 12/28/18, at 1 (single page).

Moreover,

      the proper procedure to be followed if the trial court’s order does
      not include the requisite certification pursuant to Section 702(b)
      is to request the court to amend its order accordingly. If the court
      refuses to amend its order to include the requisite certification, it
      must do so by order denying the amendment.

      The appellant must then challenge the order denying the
      amendment by filing a petition for review pursuant to Chapter
      Fifteen of the Rules of Appellate Procedure, rather than a Petition
      for Permission to appeal under Chapter Thirteen of the Appellate
      Rules.

Hoover v. Welsh, 615 A.2d 45, 46 (Pa. Super. 1992) (unnecessary

capitalization omitted).




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       There is no evidence in the record that Appellant sought to amend the

order under review to include a Section 702(b) certification by the trial court.

Accordingly, that order is not properly before us an interlocutory order

appealable by permission.

       Finally, we consider whether the at-issue order was nevertheless a

collateral order that was appealable as of right.

       The “collateral order doctrine” permits an appeal as of right from
       a non-final order if the order is separable from and collateral to
       the main action, involves a right too important to be denied
       review, and involves a claim that will be irreparably lost if review
       is postponed until final judgment.

Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 375

n.2 (Pa. Super. 2012).4 Here, Appellant is entitled to test the sufficiency of

the Commonwealth’s evidence before a factfinder during retrial, and, if

convicted, he may appeal on sufficiency grounds from any resulting judgment

of sentence. Thus, it is clear that the sufficiency claims raised in the instant

appeal will not be irreparably lost if review of those claims is postponed. 5
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4 See also Pa.R.A.P. 313(b), defining a collateral order as “an order separable
from and collateral to the main cause of action where the right involved is too
important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.” A collateral order, so defined, is appealable as of right.
Pa.R.A.P. 313(a).

5 The instant matter is similar to situations where a defendant files a pre-trial
motion to dismiss an indictment (indeed, a post-trial motion following a
mistrial due to a hung jury is, effectively, a pre-trial motion for the pending
retrial). “The general rule in criminal cases is that a defendant may appeal
only from a final judgment of sentence, and an appeal from any prior order or



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Therefore, we conclude that the at-issue order is not appealable as of right

under the collateral order doctrine.

       As we cannot ascertain any basis for the appealability of the order

denying Appellant’s motion for arrest of judgment, we do not reach the merits

of Appellant’s claims, and we are compelled to quash this appeal.

       Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2020




____________________________________________


judgment will be quashed.” Commonwealth v. Ivy, 146 A.3d 241, 255 (Pa.
Super. 2016) (quoting Commonwealth v. McMurren, 945 A.2d 194, 195
(Pa. Super. 2008)). The only notable exception is that “criminal defendants
have a right to appeal a trial court’s pre-trial double jeopardy
determination….” Commonwealth v. Orie, 22 A.3d 1021, 1024 (Pa. 2011).
Appellant’s claims do not involve double jeopardy principles.


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