J-S87017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHERRY LYNN LOGSDON

                            Appellant                 No. 1018 MDA 2016


                 Appeal from the Order Entered June 14, 2016
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000718-2016

BEFORE:       LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                         FILED FEBRUARY 03, 2017

        Appellant, Sherry Lynn Logsdon, appeals from the trial court’s order

denying her “Motion Requesting Court to Revisit Motion to Dismiss Charges.”

We quash for lack of jurisdiction.

        The procedural history underlying this appeal is as follows: On April 8,

2016, a criminal complaint was filed in which Appellant was accused of

misdemeanor simple assault, 18 Pa.C.S. § 2701(a), and the summary

offense of harassment, 18 Pa.C.S. § 2709(a).       On May 3, 2016, Appellant

appeared before the Magisterial District Judge (MDJ) for her preliminary

hearing.    The MDJ dismissed the misdemeanor simple assault charge, and

scheduled Appellant for arraignment on June 1, 2016, in the Franklin County


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Court of Common Pleas on the summary harassment charge.            Notice of

Arraignment, 5/3/16.

      Appellant filed a “Motion to Cancel Arraignment and Redirect Case to

Proper District Justice” on May 11, 2016. Appellant alleged there were “no

remaining court related charges filed against [her,]” and “the only remaining

charge filed against [her] is a summary offense, which should be properly

heard before [the MDJ] in the jurisdiction in which the alleged summary

offense occurred.”     Motion to Cancel Arraignment and Redirect Case to

Proper District Justice. 5/11/16, at 1-2. The Commonwealth responded to

Appellant’s motion as follows:

      Admitted that the only remaining charge is a summary offense;
      denied that it should be heard before MDJ Pentz.             See
      Pa.R.Crim.P. 543(F)(2) (“[i]f the Commonwealth does not
      establish a prima facie case pursuant to paragraph (B), upon
      the request of the Commonwealth, the issuing authority shall
      dispose of the summary offense as provided in Rule 454 (Trial in
      Summary Cases).”        (emphasis added); Pa.R.Crim.P. 543(G)
      (“[e]xcept as provided in Rule 541(D), once a case is bound over
      to the court of common pleas, the case shall not be remanded to
      the issuing authority”).

Commonwealth’s Answer to Defendant’s Motion to Cancel Arraignment and

Redirect Case to Proper District Justice, 5/20/16, at 1-2 (emphasis in

original; footnote omitted).

      While still waiting for a decision on her Motion to Cancel Arraignment

and Redirect Case to Proper District Justice, Appellant, on May 26, 2016,

filed a “Motion to Dismiss Charges or Remand to District Justice.”    In her

motion, Appellant argued that the summary harassment charge should be

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dismissed or remanded because “the Commonwealth did not present a prima

facie case” at the preliminary hearing “and the issuing authority failed to

dispose of the summary offense, as required.” Motion to Dismiss Charges or

Remand to District Justice, 5/26/16, at 1-2. Appellant cited and attached to

her motion a copy of Rule 543 of the Rules of Criminal Procedure, which

addresses “Disposition of Case at Preliminary Hearing.”

      On May 31, 2016, the trial court issued an order denying both of

Appellant’s motions. On June 1, 2016, Appellant appeared and waived her

arraignment, as evidenced by the statement of rights filed that same day.

However, on June 13, 2016, Appellant filed a “Motion Requesting Court to

Revisit Motion to Dismiss Charges with Citation to Prevailing Authority.”

Within that motion, Appellant averred that on June 1, 2016, her “counsel

made an oral motion on the same topic which was DENIED [bolded

emphasis added].”      The “prevailing authority” she cited was, again,

Pa.R.Crim.P. 543. The following day, the trial court denied the motion and

entered an order which stated:

      IT IS HEREBY ORDERED that the Defendant’s Motion is DENIED.
      As this issue has been preserved for appellate review multiple
      times over, Defendant is prohibited from raising the issue again
      before this Court.

Order, 6/14/16.

      Appellant filed this appeal on June 22, 2016.        On July 1, 2016,

Appellant filed a Statement of Matters Complained of on Appeal, in which

she presented a single issue: “Did the Court err in Denying [Appellant] relief


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from further      prosecution pursuant         to   Pennsylvania   Rule   of Criminal

Procedure 543?” Statement of Errors Complained of on Appeal, 7/1/16, at

2. In response, the trial court filed a Pa.R.A.P. 1925(a) opinion in which it

asserted that the Superior Court lacks jurisdiction to hear the appeal, and, in

the alternative, concluded that Appellant’s argument regarding Rule 543 is

meritless. Trial Court Opinion, 7/15/16, at 1-8.1

       On August 2, 2016, this Court issued a per curiam order directing

Appellant “to show cause, within 10 days of the date of this Order, why the

appeal should not be quashed as taken from an unappealable order and how

this appeal satisfies the requirements of Pa.R.A.P. 313.”             Order, 8/2/16.

Appellant responded by claiming — for the first time — that her appeal

involves a double jeopardy issue, and, in support of that claim, she cited

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1
  The jurisdictional discussion in the trial court’s opinion concludes, “this
Court respectfully requests that the [Appellant’s] appeal from this Court's
Order of May 31, 2016 be quashed.” Tr. Ct. Op. at 5. Appellate Rule
1925(a)(1) provides:

       Except as otherwise prescribed by this rule, upon receipt of the
       notice of appeal, the judge who entered the order giving rise to
       the notice of appeal, if the reasons for the order do not already
       appear of record, shall forthwith file of record at least a brief
       opinion of the reasons for the order, or for the rulings or other
       errors complained of, or shall specify in writing the place in the
       record where such reasons may be found.

The rule does not call for trial court to opine on this Court’s jurisdiction or to
advocate for quashal or any other disposition.            It calls only for an
explanation of the trial court’s reasoning that will assist us in deciding the
merits of the appeal. A Rule 1925(a) opinion should be limited accordingly.



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Commonwealth v. Brady, 508 A.2d 286 (Pa. 1986). On August 15, 2016,

this Court filed a per curiam order discharging the show-cause order and

stating that the Court “will take no action at this time and will refer the issue

to the merits panel to be assigned to this case.” Order, 8/15/16.

        In her brief, Appellant now includes the collateral order issue as the

first of her two questions presented:

        1. Does this Court have jurisdiction to hear this matter pursuant
           to Pa.R.A.P. 313 and Commonwealth v. Brady, 510 Pa.
           335, 508 A.2d 286 (1986).

        2. Did the Court err in failing to grant [Appellant’s] [motion] to
           dismiss the charges against her pursuant to Pa.R.Crim.Pro.
           543(F).

Appellant’s Brief at 3.      We conclude that we lack jurisdiction to hear this

appeal.

        Appellant is correct that an order denying a proper motion to dismiss

on grounds of double jeopardy is immediately appealable as a collateral

order under Appellate Rule 313.2          Commonwealth v. Haefner, 373 A.2d

1094, 1095 (Pa. 1977); Commonwealth v. Bolden, 373 A.2d 90, 94-105
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2
    Pa.R.A.P. 313 states:

        (a) General rule. An appeal may be taken as of right from a
        collateral order of an administrative agency or lower court.

        (b) Definition. A collateral order is 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.



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(Pa. 1977).    But Appellant never filed a motion to dismiss on double

jeopardy grounds.     Such a motion must be filed under Rule 287(B) of the

Rules of Criminal Procedure. The motion that is the subject of Appellant’s

putative appeal was filed under Criminal Rule 543.

      This distinction is critical for purposes of appellate review. In Brady,

508 A.2d at 290-91, and Commonwealth v. Orie, 22 A.3d 1021, 2024-28

(Pa. 2011), the Supreme Court concluded that because a right to

immediately appeal an order denying a double jeopardy defense may

encourage the filing of frivolous and dilatory motions by some defendants, it

would not recognize orders disposing of frivolous double jeopardy motions as

collateral orders. Accordingly, Rule 287(B) provides that a court denying a

motion to dismiss on double jeopardy grounds must make a specific finding

regarding whether the motion was frivolous. Pa. R. Crim. P. 287(B)(4). If

the court finds that the motion was not frivolous, the order is immediately

appealable as a collateral order. But if the court deems the motion frivolous,

the defendant may seek appellate review only by filing a petition for review

under Appellate Rule 1573. By filing her motion under Rule 543 rather than

287(B),   Appellant   improperly   bypassed   the    process   by   which   the

appealability of double jeopardy orders is determined.

      Appellant nevertheless claims that the trial court’s order here is a

double jeopardy order because “she has already been tried by a Court of

competent jurisdiction in this matter, same being the Magisterial District

Justice, on May 3, 2016, at which time she was placed in jeopardy by the

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Court.” Appellant’s Brief at 7. We disagree. The May 3, 2016 hearing was a

preliminary hearing at which the MDJ dismissed the misdemeanor charge of

simple assault, but ordered Appellant arraigned on the summary harassment

count. Because Appellant has not yet been tried on the harassment count,

jeopardy has not attached with respect to that charge.      “[T]his Court has

determined that at the heart of double jeopardy jurisprudence is the

requirement that an individual demonstrate that he or she has been

subjected to the risk of a trial on the merits. Commonwealth v. Hunter,

674 A.2d 306, 307 (Pa. Super. 1996) (citation omitted), appeal dismissed

as improvidently granted, 701 A.2d 1356 (Pa. 1997).          In Pennsylvania,

jeopardy does not attach and the constitutional prohibition against double

jeopardy has no application until a defendant stands before a tribunal for a

trial to determine her guilt or innocence. Id. That did not happen at the

May 3, 2016 preliminary hearing because a “preliminary hearing is not a

trial.” See Commonwealth v. Weigle, 997 A.2d 306 (Pa. 2010).

      It follows that Appellant’s motion under Rule 543 was not a motion to

dismiss on double jeopardy grounds. Indeed, it never purported to be. In

that motion, Appellant never asserted her right to be free from being placed

in double jeopardy and never cited any authority regarding double jeopardy

at all. Understandably, then, the trial court never discussed double jeopardy

when it disposed of Appellant’s motion and filed its Rule 1925(a) opinion.

      As the Commonwealth aptly states, “Although [Appellant] argues that

her right is embedded in the Double Jeopardy Clause, the actual ‘right’ she is

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asserting is to have her case heard before a magisterial district judge rather

than a judge of the court of common pleas.” Commonwealth Brief at 2. A

review of Appellant’s motion confirms the Commonwealth’s observation.

Appellant’s initial “Motion to Cancel Arraignment and Redirect Case to Proper

District Justice” stated:

      The only remaining charge filed against Sherry L. Logsdon is a
      summary offense, which should be properly heard before District
      Justice Larry J. Pentz, in the jurisdiction in which the alleged
      summary offense occurred. (39 -3 -02)

      ...

      WHEREFORE, it is requested this Honorable Court enter an Order
      canceling the June 1, 2016, arraignment and directing that this
      matter be remanded to District Justice Larry J. Pentz' office for
      further proceeding.

Motion to Cancel Arraignment and Redirect Case to Proper District Justice,

5/10/2016, at 2.     After that motion was denied and after Appellant was

arraigned on the summary offense, she filed her “Motion Requesting Court

To Revisit Motion To Dismiss Charges,” in which she renewed her prior

argument    and    requested   dismissal   for   failure   to   comply   with   her

interpretation of Rule 543. See Motion Requesting Court To Revisit Motion

To Dismiss Charges, 6/9/16, at 1-2. None of Appellant’s motions dealt with

double jeopardy.

      Trial has not yet been held in this matter, and the order from which

Appellant seeks to appeal therefore is interlocutory. Because the trial court’s

order was not a denial of a motion to dismiss on double jeopardy grounds, it



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is not a collateral order under Commonwealth v. Brady.              Appellant

presents no other basis upon which we may exercise jurisdiction to hear this

matter.3 Therefore, we quash the appeal for lack of jurisdiction.

       Appeal quashed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2017




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3
  Apart from her double jeopardy argument, Appellant does not argue that
the trial court’s order otherwise qualifies as a collateral order.



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