Com. v. Dunbar, G.

• Court: Superior Court of Pennsylvania
• Decided: March 13, 2024
• Docket: 1158 MDA 2023
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GREGORY MARK DUNBAR : : Appellant : No. 1158 MDA 2023

Appeal from the Order Entered July 26, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000873-2020

MEMORANDUM PER CURIAM.: FILED: MARCH 13, 2024

Appellant, Gregory Mark Dunbar, appeals, pro se, from the July 26, 2023

order denying his June 2, 2023 motion seeking to dismiss a prosecution

against him on double jeopardy grounds. Also before this Court is an

“Application for Relief and Writ of Habeas Corpus Relief” (Application) filed in

this Court on September 5, 2023. We affirm the July 26, 2023 order and

dismiss the Application.

Our review of the record reveals that, on December 2, 2019, a criminal

complaint was filed charging Appellant with nine counts of retaliation against

prosecutor or judicial official1 and one count of barratry2 related, inter alia, to

his filing of private criminal complaints with the Dauphin County District

Attorney’s Office against nine Commonwealth Court judges based upon his

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1 18 Pa.C.S. § 4953.1(a).

2 18 Pa.C.S. § 5109. J-S07036-24

disagreement with a ruling by that court. Following a preliminary hearing

before a magisterial district judge on February 3, 2020, the charges were

dismissed. The Commonwealth then refiled the charges on February 10,

2021. A preliminary hearing was held on February 21, 2020 before the

president judge of the trial court, and the charges were bound over for trial.

Appellant has filed numerous motions in the trial court,3 including the

June 2, 2023 “Motion to Dismiss/Motion to Strike for Want of Subject Matter

Jurisdiction/Double Jeopardy” at issue in this appeal. On July 26, 2023, the

trial court filed an order denying this motion. Appellant filed a timely appeal

from the trial court’s order.

Appellant raises the following issue on appeal:

Do[es] jeopardy attach to bad faith and prosecutor overreaching conduct and indirect contempt of a valid Pa.R.Crim.P. rule 543 discharge from custody order in same case, by a member of the Unified Judicial System?

Appellant’s Brief at 4. As best can be discerned, Appellant argues that his

double jeopardy rights were violated when the charges against him were

dismissed by a magisterial district judge after the February 3, 2020

preliminary hearing and Appellant was then discharged pursuant to

Pa.R.Crim.P. 543(B). Appellant contends that the Commonwealth did not

comply with Pa.R.Crim.P. 544 and Pa.R.Crim.P. 132 when it then brought the

3 According to the trial court, Appellant had filed 34 motions as of the date

that the Pa.R.A.P. 1925(a) opinion was prepared. Trial Court Opinion, 10/3/23, at 1.

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charges before the president judge of the trial court without filing a motion to

allow a different issuing authority to conduct the preliminary hearing.

Prior to reaching the merits of Appellant’s argument, we first must

address the appealability of the July 26, 2023 order. Both the trial court and

the Commonwealth maintain that this order is a non-final, interlocutory order,

which was not appealable as of right and which could not otherwise be

appealed because permission was not sought from the trial court or this

Court.4 Trial Court Opinion, 10/3/23, at 1-2; Commonwealth’s Brief at 4-6;

see also 42 Pa.C.S. § 702(b); Pa.R.A.P. 311, 312, 341, 1311. Therefore, the

lower court and Commonwealth request that this appeal be dismissed or

quashed. Trial Court Opinion, 10/3/23, at 2; Commonwealth’s Brief at 6.

While the trial court and Commonwealth are correct that the July 26,

2023 order is not final and would not be appealable as an interlocutory order

by right or by permission, an order denying a pre-trial motion to dismiss on

double jeopardy grounds that makes no finding that the motion is frivolous is

immediately appealable as a collateral order. See Commonwealth v. Gross,

232 A.3d 819, 833 (Pa. Super. 2020) (en banc); Pa.R.A.P. 313, Comment;

see also Commonwealth v. Davis, 242 A.3d 923, 928-29 (Pa. Super. 2020)

(order denying motion to dismiss based upon Commonwealth’s alleged

4 The trial court noted in its opinion that Appellant’s jury trial on the aforementioned charges was scheduled to begin on October 30, 2023, but was continued pending the resolution of this appeal. Trial Court Opinion, 10/3/23, at 1.

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violation of Pa.R.Crim.P. 544 when refiling charges, which implicates double

jeopardy principles, was a collateral order appealable under Pa.R.A.P. 313).

Here, the trial court did not make a finding that Appellant’s June 2, 2023

motion to dismiss was frivolous and therefore this appeal is properly before

this Court as taken from a collateral order.5 However, although Appellant

raised additional grounds for seeking the dismissal of the charges against him

in his June 2, 2023 motion—including absence of jurisdiction, res judicata, and

violation of his due process rights—we do not address these other grounds as

we discern no separate basis for finding that the lower court’s July 26, 2023

order was immediately appealable.

An appeal based on double jeopardy grounds presents a question of

constitutional law. Gross, 232 A.3d at 835; Commonwealth v. Byrd, 209

A.3d 351, 353 (Pa. Super. 2019). Accordingly, our standard of review is de

5 We note that no hearing was held on Appellant’s June 2, 2023 motion, notwithstanding the requirement of Pennsylvania Rule of Criminal Procedure 587 that the trial court schedule a hearing on any motion to dismiss on double jeopardy grounds and make findings of fact at the conclusion of the hearing concerning the double jeopardy claim. Pa.R.Crim.P. 587(b)(2)-(3). While the trial court did not comply with this procedure, Appellant did not raise non- compliance with the Rule 587 procedure in the trial court or in this appeal, and therefore the issue is waived. Gross, 232 A.3d at 833 n.1; Pa.R.A.P. 302(a). In any event, we would find that Appellant was not prejudiced by the failure to comply with Rule 587 as Appellant raised his argument regarding the alleged improper procedure concerning the refiling of the charges against him in multiple prior motions under multiple different legal theories, and the trial court had addressed the issue at several prior hearings and in an earlier order. Order, 5/15/23; N.T., 2/21/20, at 3-6; N.T., 11/12/20, at 6-10; N.T., 1/25/21, 2-6; N.T., 11/15/21, at 3-7; N.T., 8/29/22, at 18-22.

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novo, and our scope of review is plenary. Gross, 232 A.3d at 835; Byrd, 209

A.3d at 353.

“The Double Jeopardy Clauses of the Fifth Amendment to the United

States Constitution and Article 1, § 10 of the Pennsylvania Constitution protect

a defendant from repeated criminal prosecutions for the same offense.” Byrd,

209 A.3d at 353 (citation omitted). “At the heart of double jeopardy

jurisprudence is the requirement that an individual demonstrate he has been

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

97 A.3d 363, 365 (Pa. Super. 2014) (citation omitted) (cleaned up).

“Under Pennsylvania law, jeopardy attaches when the jury is sworn or,

in a bench trial, when the trial court begins to hear evidence.”

Commonwealth v. Jones, 676 A.2d 251, 253 (Pa. Super. 1996); see also

Martin, 97 A.3d at 365. Our Supreme Court has explained that “[d]ismissal

of charges and discharge of the accused for failure to establish a prima facie

case at the preliminary hearing is an interlocutory order, which does not

implicate double jeopardy concerns.” Commonwealth v. McClelland, 233

A.3d 717, 736 n.11 (Pa. 2020) (citing Commonwealth v. La Belle, 612 A.2d

418, 420 (Pa. 1992), and Liciaga v. Court of Common Pleas of Lehigh

County, 566 A.2d 246, 249-50 (Pa. 1989)); see also Commonwealth v.

Burke, 261 A.3d 548, 551 (Pa. Super. 2021)).

Therefore, the Commonwealth’s decision to refile charges against

Appellant on February 10, 2021, after the dismissal of those charges one week

prior did not implicate Appellant’s due process rights. See McClelland, 233

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A.3d at 736 n.11 (upholding order “discharg[ing] appellant without prejudice

to the Commonwealth to refile charges and proceed with a new preliminary

hearing”); accord La Belle, 612 A.2d at 420; Liciaga, 566 A.2d at 249-50.

Refiling was permitted regardless of whether the Commonwealth presented

new evidence at the second preliminary hearing. Commonwealth v.

Pettersen, 49 A.3d 903, 910 (Pa. Super. 2012); Commonwealth v. Carbo,

822 A.2d 60, 67 (Pa. Super. 2003) (en banc), abrogated on other grounds

by Commonwealth v. Dantzler, 135 A.3d 1109 (Pa. Super. 2016) (en

banc). We additionally note that the refiling against Appellant does not run

afoul of the statute of limitations applicable to Appellant’s offenses.

Pettersen, 49 A.3d at 910 (refiling of charges must be done prior to

expiration of statute of limitations); 42 Pa.C.S. § 5552(a) (offenses at issue

are subject to general rule that prosecution must be commenced within two

years after they were committed); Criminal Complaint, 2/10/20 (stating that

charges related to conduct occurring between September 3, 2019, and

February 5, 2020); Information, 9/1/20 (same).

In Davis, this Court observed that the failure to comply with Rule of

Criminal Procedure 544, which sets forth the procedure for reinstituting

charges following withdrawal or dismissal, may implicate double jeopardy

principles and provide a basis for relief in the form of dismissal of refiled

charges. Davis, 242 A.3d at 928-29. Pursuant to Rule 544, the

Commonwealth may reinstitute charges before the same issuing authority

who the charges were before initially or file a motion with the president judge

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of the judicial district requesting that a different issuing authority be assigned

for a new preliminary hearing. Pa.R.Crim.P. 544; see also Pa.R.Crim.P. 132

(procedure for temporary assignment of issuing authorities). Here, the second

preliminary hearing occurred before the president judge of the trial court

rather than the magisterial district judge who presided over the first

preliminary hearing, Davis, 242 A.3d at 931-34 (stating that an “issuing

authority” under Rule 544 refers to the specific magistrate who dismissed or

permitted the withdrawal of the charges or conducted a preliminary hearing),

and the record does not indicate that the Commonwealth filed a motion

requesting the reassignment. Id. at 934 (filing of criminal complaint before

different magisterial district judge than who had originally dismissed charges

without seeking reassignment under Rule 544(B) violated the rule).

However, even assuming a violation of Rule 544, Appellant is not

entitled to relief. A defendant will only be entitled to relief based upon a

violation of Rule 544 if

he challenges the re-filing of previously dismissed charges before the conclusion of the trial and when: 1) the re-filing of charges occurs after the expiration of the statute of limitations; or 2) when the re-filing of charges constitutes an effort to harass the defendant; or 3) where the re-filing of charges is prejudicial to the rights of the defendant.

Id. at 934 (quoting Pettersen, 49 A.3d at 911) (cleaned up). As discussed

above, the charges were refiled prior to the expiration of the applicable statute

of limitations. Furthermore, Appellant has failed to demonstrate that the

refiling of charges here prejudiced him. Appellant’s only assertion of any

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prejudice relates to the fact that the affidavit of probable cause supporting the

original complaint incorrectly stated that prison authorities found Appellant to

be in possession of pornography and he was punished therefor by the

Department of Corrections.6 Petition for Appointment of New Counsel and

Motion to Dismiss, 6/9/20, Exhibit 1 (Dec. 2, 2019 Affidavit of Probable

Cause). The attesting officer explained at the February 21, 2020 preliminary

hearing that this information was discovered to be erroneous and corrected

prior to the first preliminary hearing on February 3, 2020. N.T., 2/21/20, at

25-26. Thus, this incorrect assertion that Appellant possessed pornography—

which is of minimal, if any, relevance to the issue of whether the

Commonwealth presented prima facie evidence that Appellant committed the

offenses of retaliation against prosecutor or judicial official and barratry—did

not play a role in either of Appellant’s preliminary hearings. Finally, beyond

Appellant’s bald claim that the Commonwealth “harass[ed]” him by refiling

the charges, Appellant’s Brief at 7, Appellant has not presented any basis for

this Court to conclude that the Commonwealth’s actions here were intended

to harass him or had an effect of harassment. Therefore, we cannot find that

Appellant would be entitled to relief based upon a violation of Rule 544.

6 In the ruling that allegedly led to Appellant submitting the private criminal

complaints against the Commonwealth Court judges, that court dismissed Appellant’s petition for review challenging the Department of Corrections’ regulation prohibiting inmates from possessing materials containing nudity and sexually explicit content. Dunbar v. Wetzel, No. 484 M.D. 2018 (Pa. Cmwlth., filed July 10, 2019) (per curiam memorandum opinion).

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Finally, we dismiss the Application pending in this Court as Appellant

simply reiterates in it his challenge to the Commonwealth’s refiling the charges

against him, which we have addressed supra. Furthermore, to the extent he

pleads a writ of habeas corpus in the Application, he may not initiate such an

action in this Court. See Pa.R.Crim.P. 108 (discussing proper venue for a

petition for writ of habeas corpus).

Order affirmed. Application dismissed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 03/13/2024

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