J-A10037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

ORONDA LIGON

                                                    No. 215 EDA 2017


                 Appeal from the Order December 6, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0009244-2012


COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

ORONDA LIGON

                                                    No. 375 EDA 2017


                 Appeal from the Order January 12, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0009244-2012


BEFORE: GANTMAN, P.J., MCLAUGHLIN, J., and RANSOM, J.*

MEMORANDUM BY RANSOM, J.:                            FILED JUNE 26, 2018

     Appellant, the Commonwealth of Pennsylvania, appeals from the trial

court’s orders of December 6, 2016, and January 12, 2017, respectively




* Retired Senior Judge assigned to the Superior Court.
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dismissing the case and denying the Commonwealth’s motion to amend the

bills of information. After careful review, we affirm.

       We adopt the following statement of facts from the trial court’s opinion,

which in turn is supported by the record.        See Trial Court Opinion (TCO),

7/19/17, at 1. Appellee was arrested on March 10, 2012, and charged with

twenty-four offenses, among the most serious of which were aggravated

assault, conspiracy to commit aggravated assault, robbery with threat of

immediate serious injury, burglary, criminal trespass, and a violation of the

Uniform Firearms Act – firearms not to be carried without a license.1 A number

of continuances were held prior to trial at Appellee’s request.

       On December 5, 2012, the matter proceeded to trial following a trial

readiness conference; voir dire was completed, and a jury had been selected.

On December 6, 2012, prior to opening arguments, the Commonwealth

indicated that its complaining witnesses were not at the courthouse.        The

Commonwealth had attempted to contact them but had, as of 10:15 a.m.,

received no response. See Notes of Testimony (N.T.), 12/6/16, at 3-5. At

11:45 a.m., the Commonwealth represented to the court that it had arranged

for transportation for the complainants and they were being brought in. Id.

at 17. The defendant did not request that the court dismiss the matter, but

the court, noting that the complainants were supposed to be in court at 9:30

a.m., dismissed the case. Id. at 17-18.
____________________________________________


1 18 Pa.C.S. §§ 2702(a), 903, 3701(a)(1)(ii), 3502(a), 3503(a)(1)(i),
6106(a)(1), respectively.

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        On December 21, 2016, the Commonwealth filed a motion seeking to

amend the bills of information, explaining that it had attempted to refile the

bills of information but that the administrators of the First Judicial District

refused to reinstate the charges. See Mot. to Reinstate Bills of Information,

12/21/16, at ¶ 7. On January 5, 2017, while the motion was still pending, the

Commonwealth timely appealed the court’s December 6, 2016 order.               On

January 12, 2017, the supervising judge of the trial court denied the motion

to amend. Following that denial, the Commonwealth timely filed a second

notice of appeal to this Court.2

        The Commonwealth and the trial court have complied with Pa.R.A.P.

1925.

        On appeal, the Commonwealth raises a single issue for our review:

        Did the trial court abuse its discretion in dismissing the case with
        prejudice when the victims – an elderly woman and a paraplegic
        man – were unexpectedly late for court where the Commonwealth
        insisted that, despite the victims’ absence, it was ready for trial
        and defendant suffered no prejudice as a result of any brief delay?


____________________________________________


2The Commonwealth filed an application to consolidate the appeals, and that
application was granted in February 2018. However, as the Commonwealth
has made no argument regarding the January 12, 2017 order, we are
constrained to dismiss the appeal docketed at 375 EDA 2017.               See
Commonwealth’s Brief at 11-29; see also Commonwealth v. Buterbaugh,
91 A.3d 1247, 1262 (Pa. Super. 2014) (en banc) (failure to conform to the
Rules of Appellate Procedure results in waiver of the underlying issue); see
also Pa.R.A.P. 2119(a), (b) (requiring a properly developed argument for each
question presented including a discussion of and citation to authorities in
appellate brief).



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Commonwealth’s Brief at 4.3

       Initially, however, we must determine whether the Commonwealth has

appealed from a final order. See Pa.R.A.P. 341(e) (“An appeal may be taken

by the Commonwealth from any final order in a criminal matter only in the

circumstances provided by law.”).

       The trial court avers that the charges against Appellee were dismissed

without prejudice and that dismissals of criminal complaints based upon

remediable defects are interlocutory, unappealable orders.          See TCO,

7/19/17, at 2-3 (citing Commonwealth v. La Belle, 612 A.2d 418, 420 (Pa.

1992)). The court proposes that the Commonwealth’s failure to make a prima

facie case due to the absence of a witness is such a defect.        Id. (citing

Commonwealth v. Jones, 676 A.2d 251, 252 (Pa. Super. 1996)). While the

trial court notes that the charges were dismissed nearly five years after the

complaint was filed, it does not indicate an awareness that the charges were

subject to the statute of limitations. Id. at 2-3. Instead, it states that the

order is precluded from appellate review and the Commonwealth’s sole

recourse is the refilling of criminal charges. Id.

       The supervising judge of the criminal division of the Philadelphia Court

of Common Pleas has also filed an opinion in response to the Commonwealth’s

second appeal. See Trial Court Opinion (TCO), 8/11/17, at 1-6. The court

avers that the Commonwealth attempted to circumvent the normal procedural
____________________________________________


3Appellee indicated to this Court that he would not file a brief in this matter
and would not seek oral argument. See Letter, 4/11/18, at 1.

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mechanisms for refiling a complaint when it sought reinstatement of the bills

of information rather than refiling the complaint or re-arresting the appellee.

Id. at 1-3. The supervising judge also notes that when charges against the

defendant are dismissed for failure to produce a witness at trial, the matter is

not ripe for appeal because the Commonwealth may refile the complaint. Id.

at 3-4. Further, according to the supervising judge, this is the only avenue of

redress for the Commonwealth in such a situation.           Id. at 3-4 (citing

Commonwealth v. Waller, 682 A.2d 1292, 1294 (Pa. Super. 1996). Thus,

the supervising judge avers that the appeal is interlocutory and not

appealable. Id. at 3-4. Finally, the supervising judge notes that 1) at the

time the Commonwealth’s motion had been filed, an appeal had already taken,

so the court no longer had jurisdiction; 2) the trial court was a court of

coordinate jurisdiction, and 3) there was no reason to overturn such an order.

Id. at 3-6 (citing Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa.

1995)).     The supervising judge also makes no mention of the statute of

limitations.

      In contrast, the Commonwealth avers that the December 6 order is a

final order, because the statute of limitations precludes the refiling of the

complaint. See Commonwealth’s Brief at 13. Because this defect is incurable

and   the    order   therefore   terminates   the   Commonwealth’s   case,   the

Commonwealth argues that the order is final and appealable. Id. at 12-13

(citing Commonwealth v. Finn, 496 A.2d 1254, 1255 (Pa. Super. 1985)

(“order discharging appellee must be viewed . . . as a final order from which

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an appeal may properly be taken” where “the applicable statute of limitation

had expired at the time the order was entered”)).4

       Although the Commonwealth characterizes the dismissal of the charges

as being “with prejudice,” that is not an accurate statement of the record.

See Commw. Brief at 15.            To the contrary, the trial court dismissed the

charges without prejudice. See TCO, 7/19/17, at 3 (citing to Docket No. CP-

51-CR-0009244-2012). Nevertheless, due to the statute of limitations, we

agree that, because the order terminated the case, it is final and appealable,

and accordingly, we will examine the Commonwealth’s issue on the merits.

Finn, 496 A.2d at 1255; see also La Belle, 612 A.2d at 420 (noting that

where the Commonwealth is unable to refile its case within the time period

allotted by a rule of criminal procedure, the defects are incurable, and the only

available remedy from dismissal of charges is an appeal); cf Waller, 682 A.2d

at 1294 (noting that the determination of whether dismissal of criminal

charges is considered a final order rests on the reason for the dismissal; if the

defect requiring the dismissal is incurable then the order is final and appellate

review proper).

       We now address the Commonwealth’s sole issue on appeal, which

consists of two arguments. First, the Commonwealth argues that the court

erred and abused its discretion in dismissing the case under the erroneous

____________________________________________


4 We further note that this opinion does not indicate whether the statute of
limitations issue was raised before the trial court or whether the effect of the
order, due to the statute, was dispositive.

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assumption that the Commonwealth could refile the complaint. See Commw.

Brief at 10.     Second, the Commonwealth argues that the tardiness of the

complainants did not justify the “extreme” sanction of dismissing the case,

where the Commonwealth assured the court that it was ready for trial, despite

a brief delay.    See Commw. Brief at 14.      Essentially, the Commonwealth

contends that because the statute of limitations had expired and it could no

longer refile the complaint or re-arrest the defendant, in the absence of

misconduct or prejudice to the defendant, terminating the prosecution was an

excessive and impermissible sanction. Id. at 10-14.

      Initially, we note that the Commonwealth has waived its argument

regarding the expiration of the statute of limitations. See Commonwealth

v. Elrod, 572 A.2d 1229, 1232 (Pa. Super. 1990); Pa.R.A.P. 302 (issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal). Insofar as the record shows, the Commonwealth did not bring the

issue of the statute of limitations to the court’s attention at any time prior to

the filing of this appeal. It did not raise the issue at the initial dismissal; in

either of its motions seeking to refile the charges or amend the information;

or in its Pa.R.A.P. 1925(b) statement, which states only that the court abused

its discretion in dismissing the case for reasons currently unknown.         See

Motion, 12/21/16, at 1-3; Pa.R.A.P. 1925(b) Statement, 1/18/17 at 1,

1/24/17 at 1. Neither the trial court nor the supervising judge mention the

statute of limitations in their Pa.R.A.P. 1925(a) opinions. See TCO, 7/19/17,

at 1-4; TCO, 8/11/17, at 1-6. Thus, the Commonwealth may not rely on the

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expiration of the statute of limitations as a reason the dismissal was an unduly

harsh sanction. Elrod, 572 A.2d at 1232; Pa.R.A.P. 302.

      We further decline to find an abuse of discretion in the court’s decision

to dismiss the charges. The Commonwealth argues that the complainants’

tardiness did not justify the extreme sanction; that the Commonwealth had

made “diligent efforts” to bring the victims to court; and that the case was

otherwise ready to be brought to trial. See Commonwealth’s Brief at 14-15.

      We examine the facts of this case to determine whether the trial court

abused its discretion in dismissing the charges against Appellee following the

Commonwealth’s request for an extension of time to procure necessary

witnesses. See Waller, 682 A.2d at 1293. Here, we cannot conclude that

the trial court committed an abuse of discretion. As the court noted, 1) the

matter proceeded to trial nearly five years after the complaint was initiated;

2) the jury had already been empaneled on the morning of trial; 3) the

Commonwealth asserted it was ready to proceed to trial, but could not produce

the witnesses. See TCO, 7/19/17, at 1-3. The Commonwealth was not ready

to proceed to trial at the call of the list, and it was not an abuse of discretion

for the court to dismiss the case without prejudice. Waller, 682 A.2d at 1293.

      Orders affirmed.

      President Judge Gantman joins the Memorandum.

      Judge McLaughlin Notes Dissent.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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