Com. v. Perone, W.

• Court: Superior Court of Pennsylvania
• Decided: June 2, 2025
• Docket: 1490 EDA 2024
• Status: Unpublished

Opinion

J-S08004-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WESLEY DAVID PERONE : : Appellant : No. 1490 EDA 2024

Appeal from the Order Entered May 3, 2024 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000992-2024

BEFORE: DUBOW, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY DUBOW, J.: FILED JUNE 2, 2025

Appellant, Wesley David Perone, appeals from the order entered on May

3, 2024, in the Court of Common Pleas of Lehigh County, which nolle prossed

all charges in this case. Appellant asserts that the trial court abused its

discretion in granting the Commonwealth’s request to nolle pros because the

court did not follow proper procedures and the grant of a nolle pros violated

his speedy trial rights. Because Appellant suffered no harm from the trial

court’s decision to grant the nolle pros with prejudice, we quash this appeal.

The relevant factual and procedural history is as follows. On January 8,

2024, the Commonwealth charged Appellant with Corrupt Organizations and

related offenses for his involvement in an alleged conspiracy to distribute

controlled substances in Lehigh, Carbon, and Schuylkill Counties, and unlawful

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* Retired Senior Judge assigned to the Superior Court. J-S08004-25

possession of firearms. On January 30, 2024, a federal grand jury in the

Middle District of Pennsylvania indicted Appellant for the distribution of

controlled substances in Carbon County which, according to the

Commonwealth, stemmed from the same facts as the present case.

Commonwealth’s Br. at 5. On May 3, 2024, the court nolle prossed all charges

in this case due to Appellant’s indictment in federal court “on charges

stemming from the same underlying facts[.]” 1 Order, 5/3/24.

Appellant filed a timely pro se appeal.2 The trial court did not order a

Pa.R.A.P. 1925(b) statement, but it issued a Rule 1925(a) opinion. We then

ordered the court to clarify whether it granted the request to nolle pros with

or without prejudice. The court responded that it granted the request with

prejudice. Response to Order, 4/28/25.

Appellant raises one issue for our review:

Did the trial court abuse its discretion, and violate Appellant[’]s right to due process, in granting the Commonwealth[’]s request for nolle prosequi (without prejudice) without a formal motion ever being filed, without any notice to Appellant ever being given, without a hearing ever being held, and without affording Appellant the opportunity to contest the merits of the Commonwealth[’]s request pursuant to Pa.R.Crim.P. 585(a)?

1 The record does not contain a motion to nolle pros the charges. The Commonwealth explained that “the order was not issued pursuant to a formal motion, nor was it entered in open court.” Commonwealth’s Br. at 5.

2 Appellant’s privately-retained counsel no longer represented him, and the court denied his motion to appoint appellate counsel. Order Denying Appointment of Counsel, 5/31/24.

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Appellant’s Br. at 5 (unnecessary capitalization omitted). 3

***

A nolle prosequi is a “voluntary withdrawal by the prosecuting attorney

of present proceedings on a particular bill of indictment.” Commonwealth

v. Whitaker, 359 A.2d 174, 177 (Pa. 1976). “Upon motion of [] the

Commonwealth, the court may, in open court, order a nolle prosequi of one

or more charges notwithstanding the objection of any person.” Pa.R.Crim.P.

585(A). We review the grant of a request for nolle prosequi for an abuse of

discretion. Commonwealth v. Rega, 856 A.2d 1242, 1244 (Pa. Super.

2004).

If granted without prejudice, the nolle prosequi “can at any[]time be

retracted to permit revival of proceedings[.]” Commonwealth v. Whiting,

500 A.2d 806, 807 (Pa. 1985). In evaluating a request to nolle pros without

prejudice, a court should consider: (1) whether the Commonwealth’s reason

for the request is valid and reasonable; and (2) whether the defendant has a

valid speedy trial claim.4 Commonwealth v. Reinhart, 353 A.2d 848, 853

(Pa. 1976). The court should give both parties an opportunity to argue the

motion. Rega, 856 A.2d at 1245. A court can also grant a nolle pros with

prejudice, which is equivalent to the dismissal of charges, and generally is an ____________________________________________

3 The court did not clarify that it granted the request to nolle pros with prejudice until after Appellant filed his brief.

4 Regarding a defendant’s speedy trial rights, trial must commence within 365

days of the filing of a written criminal complaint, barring periods of excludable time. Pa.R.Crim.P. 600(A)(2)(a); (c)(1).

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“extreme sanction that should be imposed sparingly and . . . only in cases of

blatant prosecutorial misconduct.” Commonwealth v. Burke, 781 A.2d

1136, 1144 (Pa. 2001).

*

Appellant maintains that the court abused its discretion when it nolle

prosed the case. Appellant’s Br. at 13-21. He notes procedural defects,

specifically the lack of a formal motion to nolle pros and a hearing, maintains

that it was unclear whether the Commonwealth or the court supplied the

reason for the nolle pros, and challenges the reason provided. Id. at 13, 16,

18-19. Notably, he asserts that the nolle pros harmed him because he has

been incarcerated on this case for 8 months and the Commonwealth has an

“indefinite amount” of time to refile the charges in violation of his speedy trial

rights.5 Id. at 20.

Appellant’s arguments address the procedure that the court must follow

when granting a request to nolle pros without prejudice, which allows the

Commonwealth to bring the charges again. Reinhart, 353 A.2d at 853.

However, the court here granted the request to nolle pros with prejudice.

Therefore, the Commonwealth cannot bring the charges again, 6 and there is

5 The trial court opined that this appeal is frivolous because the Commonwealth dismissed the charges. Trial Ct. Op., 5/31/24, at 1-2 (unpaginated). 6 Although the Commonwealth addressed the merits of Appellant’s arguments,

it also noted that “there can be no concern that [it] might seek to refile charges against [Appellant] at some later date.” Commonwealth’s Br. at 9.

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no risk to Appellant’s speedy trial rights. It is well-settled that only a party

aggrieved by an order entered in the trial court may appeal. See

Commonwealth v. Lowman, 278 A.3d 361, 363 n.1 (Pa. Super. 2022); see

also Pa.R.A.P. 501.

Since the court’s grant of the nolle pros with prejudice did not harm

Appellant, and in fact only benefitted him, Appellant suffered no harm. We,

thus, quash this appeal.

Appeal quashed.

Date: 6/2/2025

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