Com. v. Vonville, P.

• Court: Superior Court of Pennsylvania
• Decided: November 20, 2023
• Docket: 245 EDA 2023
• Status: Unpublished

Opinion

J-S26033-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PHILIP J. VONVILLE : : Appellant : No. 245 EDA 2023

Appeal from the Order Entered January 20, 2023 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001708-2009

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 20, 2023

Philip J. Vonville appeals the denial of his motion to dismiss on double

jeopardy grounds. We affirm.

This case stems from 2009 when Vonville was arrested and charged with

criminal homicide in the death of Christopher Hernandez. Vonville proceeded

to a jury trial at which he did not testify. The trial court instructed the jury,

“You may infer any inference of guilt from the fact that he did not testify in

his own defense.” Vonville v. Kerestes, No. 3:14-CV-1582, 2019 WL

1040747, at *4 (M.D. Pa. Mar. 5, 2019). The jury found him guilty of third-

degree murder. After state-court appellate and post-conviction proceedings,

Vonville obtained federal habeas corpus relief after the court found that “trial

counsel was ineffective for failing to object to the unconstitutional jury

instruction.” Id. at *13. J-S26033-23

The Commonwealth retried the case, but the trial court declared a

mistrial due to a juror’s misconduct. See Commonwealth v. Vonville, Nos.

873 EDA 2021, 908 EDA 2021, 276 A.3d 234, at *4 (Table) (Pa.Super. filed

Mar. 11, 2022) (unpublished memorandum). The court scheduled a second

retrial. See id.

Before the second retrial, on March 1, 2021, Vonville filed a pro se

motion to dismiss based on double jeopardy.1 The trial court denied the

motion, concluding that one of Vonville’s double jeopardy claims was not

frivolous. See id. Vonville appealed, and this Court affirmed. See id. at *10;

Pa.R.Crim.P. 587(b)(6) (permitting the immediate appeal of denial of motion

to dismiss for double jeopardy found not to be frivolous). Our Supreme Court

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1 On February 9, 2021, the court entered an order granting Vonville’s request

to proceed pro se. The order reads in part as follows:

AND NOW, this 8th day of February, 2021, upon consideration of Defendant’s oral and written requests to represent himself in this matter, and following multiple colloquies of Defendant, a thorough review of the records and file in this case, including but not limited to expert reports and Defendant’s pro se and counseled submissions in this Court and in federal courts, and taking into consideration the Court’s observations of Defendant, it is ORDERED that Defendant's requests are GRANTED and Defendant may represent himself in this case.

Order, filed 2/9/21.

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denied allowance of appeal,2 and the United States Supreme Court denied

certiorari.3

Vonville filed a pro se motion to dismiss for double jeopardy, on June

13, 2022, based on the federal court’s habeas ruling in Vonville v. Karestes.

The court denied the motion without a hearing and did not determine whether

the motion was frivolous. Vonville did not appeal.

Approximately six months later, on December 27, 2022, Vonville filed

another pro se motion to dismiss based on double jeopardy. He argued that

an “[e]rror of law . . . by the lower court has been established in Vonville v.

Kerestes,” and as such the court should grant his motion. Omnibus Pre-Trial

Motion, filed 12/27/22, at 1 (unpaginated). The trial court held a hearing at

which Vonville reiterated that his motion for double jeopardy was “based on

the error that was committed in Vonville v. Kerestes, which was a Fifth

Amendment constitutional violation.” N.T., Motions Hearing, 1/13/23. at 15.

The court replied that “almost every filing you’ve had, has said that because

of the federal court decision, you cannot and should not be re-tried. . . . I’m

just trying to say that that issue has been raised.” Id. at 17. The

Commonwealth likewise argued that “these issues have been previously

litigated.” Id. at 29.

2 See Commonwealth v. Vonville, 287 A.3d 455 (Table) (Pa. 2022).

3 See Vonville v. Pennsylvania, 143 S.Ct. 1088 (Mem) (filed April 3, 2023).

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The court entered an order denying the motion to dismiss, on January

20, 2023, without stating whether the motion was frivolous.4 See id. at 58.

The same day, Vonville filed the instant appeal. Ten days later, after Vonville

had already appealed, the trial court amended its order to state that the

motion was “frivolous” because the claims “were previously litigated, or could

have been litigated” before the trial court or this Court. Order, filed 1/30/23,

at ¶ 6. The order also stated that Vonville had 30 days to appeal. See id. at

3.

Vonville filed an application in this Court asking it to allow an

interlocutory appeal by permission to review the amended order finding that

the double jeopardy claim was frivolous. See Pa.R.A.P. 1311(a)(3). This Court

granted the application and directed appellate review of the amended order

“for purposes of Pa.R.Crim.P. 587(b)(4)” to proceed at the above-captioned

docket. Order, filed Apr. 10, 2023.

Vonville presents the following issues:

I. Whether counsel, Robert A. Saurma failed to file Pa.R.A.P. 311(A)(6); on behalf of [Vonville’s] right to a claim on double jeopardy “prior” to a second trial?

II. Whether the trial court committed reversible error when claiming [Vonville’s] double jeopardy claim to be “frivolous” and ordering [Vonville’s] appeal under Pa.R.A.P. 1573 and not under Pa.R.A.P. 311(A)(6); interlocutory appeal as of right?

4 The order is dated January 13, 2023, but the clerk of courts did not docket

the order until January 20, 2023. See Order - Motion, filed 1/20/23.

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III. Whether the trial court erroneously erred when denying [Vonville] his claim to have his case absolutely disposed of under Pa.R.A.P. 311(A)(6); that prohibits any further prosecution after the lower court was said to have violated [Vonville’s] [F]ifth [A]mendment constitutional rights in the prior trial of 2010, committing an error of law?

Vonville’s Br. at 8 (numbering corrected and suggested answers omitted).5

Vonville’s first issue raises a challenge to trial counsel’s effectiveness.

Such a claim should be raised under PCRA review unless an exception applies.

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). These exceptions

include when there are “extraordinary circumstances where a discrete claim

(or claims) of trial counsel ineffectiveness is apparent from the record” or

when the claim is “meritorious to the extent that immediate consideration best

serves the interests of justice[.]” Id. at 563. Vonville does not argue that

either exception is applicable, and we likewise do not find them to be

applicable.

Next, Vonville argues that the court erred in concluding that his motion

to dismiss was frivolous because he raised the issue previously. He claims that

the court’s conclusion that “the issue has been previously litigated is self-

revealing for it’s not supported by material fact.” Vonville’s Br. at 22.6 ____________________________________________

5 Vonville numbered his issues as “I,” “I,” and “II.” This appears to be a typographical error.

6 Vonville also claims that the court erroneously advised him that he could appeal pursuant to Pa.R.A.P. 1573, rather than Pa.R.A.P. 311(a)(6). Vonville fails to develop this issue in a meaningful way or provide any argument on it. As such, we conclude that he has abandoned this claim on appeal. See Commonwealth v. Williams, 959 A.2d 1252, 1258 (Pa.Super. 2008).

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We conclude that the order finding frivolousness was a nullity. The court

amended the original order to state the motion was frivolous after Vonville

had already appealed. Once a party has appealed an order, the trial court

lacks jurisdiction to modify it. See Pa.R.A.P. 1701(a); Commonwealth v.

Martz, 926 A.2d 514, 525 (Pa.Super. 2007) (“once a defendant files a notice

of appeal, however, the trial court is without jurisdiction to alter or modify its

order”). Therefore, the order finding his motion to be frivolous was null and

void. See Commonwealth v. Miller, 452 A.2d 820, 821 (Pa.Super. 1982)

(“any act taken by a court without proper jurisdiction is null and void”).

Vonville’s claim that the court erred in finding the motion frivolous warrants

no further discussion.7

Next, Vonville claims that the court erred in denying his motion to

dismiss. He maintains that “[d]ouble jeopardy shall prohibit any further

prosecution when the right to a ‘fair’ trial has been denied, under Double

Jeopardy.” Vonville’s Br. at 26-27. Since the court in Vonville v. Kerestes

concluded that an error of law occurred at Vonville’s first trial, Vonville argues

that this conclusion amounts to him being denied a “fair trial.” He maintains

that he has established that his claim of double jeopardy is valid and that his

case should be dismissed.

7 Because the order finding frivolousness was null and void, our jurisdiction is

secure. See Commonwealth v. Gross, 232 A.3d 819, 830 (Pa.Super. 2020) (en banc) (explaining that in the absence of a finding of frivolousness, a defendant claiming double jeopardy may appeal pursuant to Pa.R.A.P. 313).

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An appeal raising a claim of double jeopardy presents a question of law,

for which our standard of review is de novo and our scope of review is plenary.

See Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa.Super. 2013). The

trial court’s findings of fact bind us so long as they are supported by the

record. See id.

“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.”

Commonwealth v. Byrd, 209 A.3d 351, 353 (Pa.Super. 2019) (citation

omitted). Double jeopardy prohibits retrial when prosecutorial misconduct is

intended to provoke the defendant into moving for a mistrial, and when the

conduct of the prosecutor is intentionally or recklessly undertaken to prejudice

the defendant to the point of the denial of a fair trial. Commonwealth v.

Johnson, 231 A.3d 807, 826 (Pa. 2020); Commonwealth v. Smith, 615

A.2d 321, 325 (Pa. 1992).

Here, Vonville does not allege any misconduct on the part of the

prosecution. Instead, he alleges errors on the part of the trial judge and

defense counsel. Namely, he contends that counsel ought to have objected to

the court’s erroneous jury instructions. Since he has neither argued nor

demonstrated any misconduct on the part of the prosecution, no relief is due.

See Smith, 615 A.2d at 325. The trial court did not err in denying his motion

to dismiss. See Commonwealth v. Rowe, 293 A.3d 733, 739 (Pa.Super.

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2023) (“[This Court] can affirm the court’s decision if there is any basis to

support it, even if we rely on different grounds to affirm”) (citation omitted).

Finally, regarding Vonville’s claim that he is entitled to relief under Rule

311(a)(6), we conclude that this claim lacks merit. Rule 311 of the

Pennsylvania Rules of Appellate Procedure governs the circumstances in which

a party may pursue an interlocutory appeal. See Pa.R.A.P. 311 (“Interlocutory

Appeals as of Right”). Notably, although Rule 311(a)(6) applies to certain

orders ruling on claims of double jeopardy, it does not afford any recourse

beyond allowing an interlocutory appeal. See Pa.R.A.P. 311(a)(6) (allowing

an interlocutory appeal from “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”). It does not afford substantive relief,

and moreover, although Rule 311(a)(6) does not apply here, Vonville has

nonetheless had appellate review pursuant to Rules 313 and 1311.

Order affirmed.

Date: 11/20/2023

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