Commonwealth v. Sutton, S., Aplt.

Opinions

[J-81A-2025 and J-81B-2025] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 90 MAP 2024 : Appellee : Appeal from the Order of the : Superior Court at No. 373 MDA : 2023 dated March 19, 2024 v. : Reversing and Remanding the : Order of the Bradford County Court : of Common Pleas, Criminal SCOTT LEE SUTTON, : Division, at No. CP-08-CR-0000613- : 2022 dated February 8, 2023 Appellant : : ARGUED: October 8, 2025

COMMONWEALTH OF PENNSYLVANIA, : No. 104 MAP 2024 : Appellee : Appeal from the Order of the : Superior Court at No. 249 MDA : 2023 entered on April 22, 2024, v. : Reversing and Remanding the : Order of the Bradford County Court : of Common Pleas, Criminal COREY MICHAEL STROPE, : Division, at No. CP-08-CR-0000536- : 2022, entered on January 12, 2023 Appellant : : ARGUED: October 8, 2025

OPINION

JUSTICE DONOHUE DECIDED: July 21, 2026 These cases involve the Commonwealth’s interlocutory appeals from orders

disposing of pretrial petitions for writs of habeas corpus (“habeas petitions”), which

granted relief by quashing all charges brought against Scott L. Sutton (“Sutton”) and

Corey M. Strope (“Strope”) (collectively, “Appellants”). The underlying merits in the claims of both appeals involve the Commonwealth’s reliance on hearsay statements to establish

its prima facie case at the preliminary hearings. 1 Specifically, in both cases the

Commonwealth relied on detectives’ testimony regarding the out-of-court statements of

confidential informants (“CI”) to establish the identities of the alleged perpetrators. The

magisterial district judges found that the Commonwealth had established its burden of

establishing prima facie cases at the preliminary hearings. The defendants filed pre-trial

habeas petitions in the court of common pleas in their respective cases. The court of

common pleas granted habeas relief in both cases, and the Commonwealth appealed.

The court of common pleas’ orders from which the Commonwealth appealed to the

Superior Court were not final and not otherwise appealable under the laws of this

Commonwealth. Thus, the Superior Court did not have jurisdiction to consider these

cases. Due to our intermediate appellate court’s lack of jurisdiction, the Superior Court’s

orders “must be vacated and [these] appeal[s] must be quashed.” McCutcheon v. Phila.

Elec. Co., 788 A.2d 345, 346 (Pa. 2002).

1 “At the preliminary hearing, the issuing authority shall determine from the evidence presented whether there is a prima facie case that (1) an offense has been committed and (2) the defendant has committed it.” Pa.R.Crim.P. 542(D). “Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established.” Pa.R.Crim.P. 542(E). Hearsay evidence is “sufficient to establish any element of an offense, including, but not limited to those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.” Id. We have recently concluded that the language of this rule does not mean that the Commonwealth can rely exclusively on the use of evidence that would be deemed inadmissible at trial pursuant to the rule against at hearsay. Commonwealth v. McClelland, 233 A.3d 717, 735 (Pa. 2020); see also Commonwealth v. Harris, 315 A.3d 26 (Pa. 2024) (“Harris II”) (holding that “the Commonwealth at a preliminary hearing is required to produce some non-hearsay or admissible hearsay evidence to sustain its prima facie burden as to the defendant’s identity”).

[J-81A-2025 and J-81B-2025] - 2 I. Procedural Background 2

In February 2022, Detectives from the Bradford County Drug Taskforce launched

a series of controlled buys 3 in a large-scale sting operation known as “Operation Jet

Sweep.” The Detectives relied on CIs to approach and purchase drugs from certain

individuals, including Appellants. No law enforcement officers witnessed an exchange of

drugs for money in either incident. Appellants are raising the same challenge to the

Commonwealth’s reliance on law enforcement hearsay testimony to establish identity.

Sutton

In August 2022, Sutton was arrested and charged with two counts of delivery of

controlled substances. 4 At his October 14, 2022 preliminary hearing, the Commonwealth

offered the testimony of a detective who was a member of the Bradford County Drug

Taskforce. Memorandum Opinion, 2/8/2023, at 1-2. The CI was not made available for

testimony at the preliminary hearing. Id. At the conclusion of the preliminary hearing,

Sutton’s defense counsel moved to dismiss the charges on the basis that the

Commonwealth had relied entirely on inadmissible hearsay to establish its prima facie

case in identifying Sutton as the drug dealer in the two controlled buys. The magisterial

district judge denied the motion, concluding that the Commonwealth had presented prima

facie evidence as to each element of the crimes charged. Accordingly, he bound over all

charges for trial.

2 Because we are not resolving this case on the merits of the Appellants’ claims, any factual information pertinent to those claims will be limited. However, the procedural background of both cases are unique in certain respects, and thus we will set forth a separate background for each case herein. 3 This involves purchases of controlled substances by CIs using pre-recorded money while under the supervision of law enforcement. 4 35 P.S §§ 780-113(a)(30), (a)(16).

[J-81A-2025 and J-81B-2025] - 3 On December 2, 2022, defense counsel filed an omnibus pretrial motion. That

motion included a habeas petition seeking dismissal of all charges 5 because the

Commonwealth presented insufficient evidence to establish a prima facie case of the drug

dealer’s identity having relied solely on inadmissible hearsay evidence via the detective’s

testimony. In the alternative, the defense requested that the CI’s identity be disclosed,

contending that this would be essential information to prepare Sutton’s defense.

The trial court found that it was required to quash the charges filed against Sutton

because there was a lack of admissible direct evidence as to the identity of the drug

dealer. In arriving at this conclusion, the trial court looked to the Superior Court’s decision

in Commonwealth v. Harris, 269 A.3d 534 (Pa. Super. 2022) (holding that the

Commonwealth is precluded “from relying on hearsay alone at a preliminary hearing to

establish a prima facie case that the defendant committed a crime”) (“Harris I”), affirmed

by Commonwealth v. Harris, 315 A.3d 26 (Pa. 2024) (“Harris II”). 6 On that basis, the trial

court quashed the charges. Order, 2/8/2023 (Sutton) (“The charges in the above are

hereby quashed without prejudice. Defendant is discharged.”). The Commonwealth

appealed to the Superior Court, and the trial court ordered the Commonwealth to file a

concise statement of errors pursuant to Pennsylvania Rule of Appellate Procedure

1925(b) (“Rule 1925(b) Statement”). Order, 3/10/2023, at 1. The order also advised the

Commonwealth that failure to comply would result in waiver “of all objections to the order,

ruling, or other matter complained of.” Id. The Commonwealth did not comply, nor did it

seek an extension. Instead, four months later, the Commonwealth wrote a letter to the

5A pre-trial habeas petition is the “appropriate procedural means by which the accused may challenge the sufficiency of the Commonwealth’s evidence at the pre-trial stage[.]” Commonwealth v. Huggins, 836 A.2d 862, 864 n.2 (Pa. 2003). 6 Harris I was pending in this Court pursuant to a grant of allowance of appeal when the trial court issued its decision.

[J-81A-2025 and J-81B-2025] - 4 Superior Court’s prothonotary, in which it admitted its failure to file a Rule 1925(b)

statement, and it asked the Superior Court to not deem all issues waived.

Commonwealth’s Letter to Superior Court Prothonotary, 7/27/2023. While there is no

formal indication in the record of a response from the court, the Superior Court obviously

ignored the procedural defect and accepted the matter for review.

Prior to addressing the merits, the Superior Court issued a rule to show cause so

the Commonwealth could demonstrate “why the instant appeal should not be quashed as

taken from an unappealable interlocutory order[,]” given that dismissal of a case for failure

to establish a prima facie case is not final when the prosecution can refile the charges.

Superior Court Order, 373 MDA 2023 (citing, inter alia, Commonwealth v. LaBelle, 612

A.2d 418, 419 (Pa. 1992)). The Commonwealth issued a response, asserting that an

appeal from an order discharging a defendant’s habeas petition is treated as final and

appealable. Commonwealth’s Response to Rule to Show Cause, 373 MDA 2023.

Without explanation, the Superior Court found that the Commonwealth satisfactorily

established its jurisdiction, and then it discharged the rule to show cause to then review

the case on the merits. Order Discharging Rule to Show Cause, 373 MDA 2023.

In its opinion, the Superior Court relied upon its then-recent decision in Harris I 7 to

resolve both the question of its jurisdiction and the merits. Commonwealth v. Sutton, 313

7 In that case, Harris’ victim failed to appear for the first two scheduled preliminary hearings. The Commonwealth proceeded with the testimony of two police officers, including a detective, who described the ballistics evidence he observed at the scene of the shooting. The detective also relayed portions of the victim’s hospital statement and identification of Harris as one of his shooters. Harris’ counsel repeatedly objected to any mention of the victim’s out-of-court statements to no avail. The trial court later quashed all charges, and the Commonwealth appealed. The Harris I court affirmed the trial court’s order, finding that “there was insufficient evidence to establish a prima facie case as to each element at the preliminary hearing where the Commonwealth relied on hearsay evidence alone to establish that Harris committed the offense.” Harris I, 269 A.3d at 536.

(continued…)

[J-81A-2025 and J-81B-2025] - 5 A.3d 1071, 1072 (Pa. Super. 2024). The intermediate court acknowledged that the

Commonwealth’s appeal was interlocutory, but it “sua sponte determine[d] that [it] ha[d]

jurisdiction[,]” pursuant to its previous decision in Harris I. Sutton, 313 A.3d at 1074 n.3

(citing Harris I, 269 A.3d at 538-39). The Superior Court found “no deficiency in the

Commonwealth's evidentiary proffer at [Sutton’s] preliminary hearing,” and thus it

reversed the trial court’s order and remanded the matter to the lower court for further

proceedings consistent with its decision. Id. at 1078.

Sutton appealed the Superior Court’s decision, and this Court granted allowance

of appeal over the following question:

Whether this Honorable Court should grant allocat[u]r because the Superior Court’s precedent in Sutton [ ] erroneously creates an exception under [Harris II], which allows for the Commonwealth to prove a prima facie case by establishing identity using only hearsay evidence[ ] if a [CI] is being utilized.

Commonwealth v. Sutton, 329 A.3d 1124 (Pa. 2024) (per curiam).

Strope

The Commonwealth charged Strope with two counts of delivery of a controlled

substance. 8 At the preliminary hearing, the Commonwealth offered testimony from the

detectives. Memorandum Opinion, 1/12/2023, at 2. The CI was not present and did not

testify. Id. The Commonwealth cited the need to protect the identity of the CI as well as

the qualified privilege it possesses in order to protect the CI’s identity. Id. at 1. Strope

Shortly after the Superior Court’s decision in Sutton, this Court decided Harris II. We held that “the Commonwealth at a preliminary hearing is required to produce some non- hearsay or admissible hearsay evidence to sustain its prima facie burden as to the defendant’s identity.” Harris II, 315 A.3d at 37. 8 35 P.S §§ 780-113(a)(30), (a)(16).

[J-81A-2025 and J-81B-2025] - 6 objected, arguing that the sole evidence identifying Strope as the person that sold the

controlled substance was the CI, who was not present. The magisterial district judge

overruled the objection and bound over all charges for trial.

Strope filed a pretrial habeas petition, arguing that the Commonwealth did not meet

its burden of establishing a prima facie case at the preliminary hearing. On January 6,

2022, the trial court held a hearing for Strope’s habeas petition. On January 18, 2023,

the trial court granted Strope’s habeas petition, quashing the charges without prejudice.

Order, 1/18/2023 (Strope) (“The charges in the above are hereby quashed without

prejudice. Defendant is discharged.”). The Commonwealth appealed and, like in Sutton,

the Superior Court issued a rule to show cause for the Commonwealth to demonstrate

why the appeal should not be quashed as taken from an unappealable interlocutory order.

Superior Court Order, 249 MDA 2023. The Commonwealth responded as it did in Sutton,

and the Superior Court proceeded to review the case on the merits.

In an unpublished memorandum, relying on its decision in Sutton, the Superior

Court reversed the trial court’s decision, finding that the Commonwealth had established

a prima facie case at the preliminary hearing. Commonwealth v. Strope, 2024 WL

1715348, at *3 (Pa. Super. Apr. 22, 2024). Accordingly, the Superior Court reversed the

trial court’s decision. Strope filed a timely appeal to this Court, which we granted to

address, again, whether the Superior Court’s decision in this case and its decision in

Sutton comports with our decision in Harris II. Commonwealth v. Strope, 330 A.3d 1251

(Pa. 2024) (per curiam). 9

9 Specifically, our order granted allocatur of the following issue: Does the Superior Court’s precedent in Commonwealth v. Sutton, 313 A.3d 1071 (Pa. Super. 2024), erroneously create an exception to [Harris II] by allowing the Commonwealth to establish a prima facie case using only hearsay evidence to (continued…)

[J-81A-2025 and J-81B-2025] - 7 II. Parties’ Arguments 10

Appellants argue that the Superior Court lacked jurisdiction because the

Commonwealth’s appeal from court of common pleas’ decision was interlocutory.

Sutton’s Brief at 10-14; Strope’s Brief at 12-15. They note that the court of common pleas

dismissed all of the charges without prejudice because the Commonwealth failed to

establish a prima facie case at the preliminary hearing. Sutton’s Brief at 12; Strope’s Brief

at 12-13. Appellants assert that the appeals of the interlocutory orders to the Superior

Court were improper, and that the Commonwealth should have gone through the “re-

arrest procedure” set forth in our Rules of Criminal Procedure instead. Sutton’s Brief at

12; Strope’s Brief at 13. Appellants argue that in McClelland and Harris II, this Court

explained that because the Commonwealth may refile charges when they are quashed

without prejudice that any appeal taken from such an order is interlocutory. Sutton’s Brief

at 13 (citing McClelland, 233 A.3d at 736 & n.11; Harris II, 315 A.3d at 38 n.11); Strope’s

Brief at 14 (same). Therefore, they argue that the Superior Court could not have decided

the matter without jurisdiction. Sutton’s Brief at 13-14; Strope’s Brief at 14-15.

Accordingly, on this basis they ask that this Court reverse the Superior Court’s decision.

Sutton’s Brief at 14; Strope’s Brief at 15.

Separately, Sutton argues that the Commonwealth waived all of its issues by failing

to file a Rule 1925(b) Statement. Sutton’s Brief at 14. As he notes, when a judge orders

a Rule 1925(b) Statement, the rule requires that a party file the statement, and that “issues

identify the defendant, where a confidential informant is the declarant?

Commonwealth v. Strope, 330 A.3d 1251 (Pa. 2024) (per curiam). 10 Given that we resolve this matter on jurisdiction, we limit our summary to those arguments. Relatedly, Appellants, represented by the same counsel, have set forth virtually identical arguments on this point. For that reason, we summarize those arguments together, but we expressly highlight when those arguments differ.

[J-81A-2025 and J-81B-2025] - 8 not included in the Statement and/or not raised in accordance with the provisions of

[Pa.R.A.P. 1925(b)(4)] are waived.” Id. (citing Pa.R.A.P. 1925(b)(4)(vii)). This rule, he

observes, applies to all parties, which includes the Commonwealth in criminal matters.

Id. Sutton explains that it had twenty-one days, per the lower court’s order, to file its Rule

1925(b) Statement or to seek an extension if that deadline could not be met. Instead, the

Commonwealth waited four months and sent a letter to the Deputy Prothonotary of the

Superior Court to request that the intermediate court overlook waiver of its issues on

appeal. Id. at 15. Sutton contends that intermediate courts do not have the discretion to

permit deviation from the rules and, thus, the Commonwealth’s failure to file its Rule 1925

Statement resulted in automatic waiver of any issues it could have raised on appeal. Id.

at 16.

Notably, the Commonwealth failed to address any of the jurisdictional arguments

raised by Appellants in their briefing, and it also did not respond to Sutton’s arguments

as to waiver. When questioned at oral argument, the Commonwealth conceded that it

had the ability to refile the charges and admitted that its appeal to the Superior Court was

an appeal of an interlocutory order. Oral Argument, 10/8/2025, at 0:45:41-0:45:44. It did

not offer any justification as to why the Superior Court assumed jurisdiction over the case

or why it permitted the Commonwealth to proceed without having filed its Rule 1925(b)

Statement. 11

11 The Pennsylvania District Attorneys Association (“PDAA”) submitted an amicus brief in the Sutton case in support of the Commonwealth. However, like the Commonwealth, the PDAA fails to address the jurisdictional arguments or the waiver argument raised by Sutton. See generally PDAA’s Amicus Brief at 1-20.

[J-81A-2025 and J-81B-2025] - 9 III. Analysis

Before we proceed with our substantive analysis concerning jurisdiction, we find

that the Commonwealth’s failure to file its Rule 1925(b) Statement in its appeal of its

prosecution against Sutton is fatal to its resolution on the merits. The Superior Court

should never have addressed the Commonwealth’s claims in that case. The lower court

entered an order mandating that the Commonwealth submit its statement of matters

complained of on appeal within twenty-one days, pursuant to Rule 1925(b). Order,

3/10/2023 (Sutton). Our rules require that a statement be issued within that time, and

those “issues not included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii). We require

“strict compliance with Rule 1925(b)[,]” and failure to do so results in waiver.

Commonwealth v. Parrish, 224 A.3d 682, 700 (Pa. 2020). In Sutton’s case, the

Commonwealth failed to file a Rule 1925(b) Statement at all. It attempted to remedy its

error by sending an informal letter four months later “humbly ask[ing]” that the Superior

Court Prothonotary not deem the issues waived, because it had raised the same issues

in other cases. Commonwealth’s Letter to Superior Court Prothonotary, 7/27/2023. For

reasons inexplicable to this Court, the Superior Court accepted this informal plea.

However, raising issues in a separate case does not excuse the Commonwealth from

complying with court orders and our rules of appellate procedure in Sutton’s case. That

is simply not how it works. Accordingly, the Commonwealth waived all issues on its

appeal in the Sutton case, and the Superior Court’s decision should be reversed on that

basis alone.

[J-81A-2025 and J-81B-2025] - 10 While we would be remiss if we did not highlight the impropriety of the Superior

Court’s decision to ignore the Commonwealth’s waiver of all issues, we must first address

the threshold issue of whether the Superior Court had jurisdiction to address these cases

at all. Jurisdiction of an appellate court is a prerequisite to consideration of the merits of

an appeal. This rule is universal and applies to the Commonwealth’s appeal to the

Superior Court of the orders granting habeas relief in these cases. 12 Under Section 704

of the Judicial Code, a defect in the jurisdiction of an appellate court cannot be remediated

or ignored when it arises out of “[a]n attempt to take an appeal from an interlocutory

appeal which has not been made appealable by law or pursuant to section 702(b) (relating

to interlocutory appeals by permission).” 42 Pa.C.S. § 704(a), (b)(2). For the reasons

made clear below, that is precisely what is taking place in the instant matters.

Jurisdiction is a threshold question of law that must be answered before we can

lawfully review the merits of the parties’ claims. Our Constitution provides that our

“jurisdiction shall be provided by law[,]” and thus, when the law does not provide for our

jurisdiction, we cannot proceed. PA. CONST. art. V, § 2(c). Jurisdiction “is the

12 In two recent cases, this Court has avoided addressing the propriety the Superior Court’s jurisdiction in appeals from orders resolving pretrial habeas petitions. In McClelland, the Commonwealth as appellee challenged the Superior Court’s jurisdiction to consider the lower court’s denial of habeas relief. We concluded that because the issue of jurisdiction was not raised in its response to the petition for allowance of appeal there was no impediment to this Court reaching the merits of the issue on appeal. See McClelland, 233 A.3d 732 n.8 (“Although the Commonwealth now contests the Superior Court’s determination that interlocutory appellate review was appropriate in this case, that conclusion is beyond the scope of the issue upon which allocatur was granted. Thus, we do not consider it.”). Our failure to address the issue has perpetuated the error. A few years later in Harris I, the Superior Court extensively discussed its jurisdiction over the Commonwealth’s appeal of the order granting the defendant’s habeas petition, which is discussed later in this opinion. The propriety of jurisdiction was not raised in this Court and we did not address it sua sponte. See Harris II, 315 A.3d 26 (considering interlocutory appeal of grant of habeas petition).

[J-81A-2025 and J-81B-2025] - 11 indispensable foundation of a court’s power to adjudicate the issues in a particular case;

thus, our Court will not consider the merits of a judgment of a lower court if that court

lacked jurisdiction to render the judgment.” In re J.M.Y., 218 A.3d 404, 415 (Pa. 2019).

When a “lower court did not address the question of its jurisdiction to consider a petition

and proceeded to decide its merits, our Court has the duty to determine whether that court

had jurisdiction before deciding issues presented on appeal.” Id. (citing In re Petition of

Acchione, 227 A.2d 816 (Pa. 1967)).

The question of appellate jurisdiction is a question of law, and thus our standard

of review is de novo, and our scope of review is plenary. Pa. Mfg. Ass’n Insur. Co. v.

Johnson Matthey, Inc., 188 A.3d 396, 398 (Pa. 2018) (per curiam). Generally, jurisdiction

is understood to mean “the competency of the court to determine controversies of the

general class to which the case presented for its consideration belonged,—whether the

court had power to enter upon the inquiry, not whether it might ultimately decide that it

was unable to grant relief sought in the particular case.” Commonwealth v. Ct. of

Common Pleas of Phila. Cnty., 485 A.2d 755, 758 (Pa. 1984). The question of an

appellate court’s jurisdiction “is a threshold issue” to determine whether an appeal is

properly before it under the law. McCutcheon, 788 A.2d at 349. A court cannot address

the merits of a claim if it lacks jurisdiction, and thus such delineations “must be policed by

the courts on their own initiative even at the highest level.” Bisher v. Lehigh Valley Health

Network, Inc., 265 A.3d 383, 400 (Pa. 2021) (citation omitted). When courts lack

[J-81A-2025 and J-81B-2025] - 12 jurisdiction, any decision rendered by that court lacking jurisdiction must be stricken as

void ab initio. 13 Id. at 400-01.

Under the law, the Superior Court has “exclusive appellate jurisdiction of all

appeals from final orders of the courts of common pleas, regardless of the nature of the

controversy or the amount involved[.]” 42 Pa.C.S. § 742. Here, the Commonwealth

claimed in both cases that it was appealing from final orders granting the Appellants’

habeas petitions. See Superior Court Criminal Docketing Statement, 373 MDA 2023

(“Sutton”), § C (indicating that the order appealed from was a final order, pursuant to

Pa.R.A.P. 341); Superior Court Criminal Docketing Statement, 249 MDA 2023 (“Strope”),

§ C (indicating inconsistently that the order appealed from was both a final order and an

appeal pursuant to Pa.R.A.P. 311(d)). 14 Accordingly, we are concerned with whether the

13 The phrase “ab initio” means “from the beginning,” and thus when a matter is considered void ab initio it signifies that it was void from the beginning. Bisher, 265 A.3d at 400. In other words, it is treated as never having existed under the law. 14 In the Commonwealth’s docketing statement in the Strope case, it indicated that it was appealing a pretrial order and that it complied with Pa.R.A.P. 311(d). Rule 311(d) provides as follows: (d) Commonwealth Appeals in Criminal Cases.

In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

Pa.R.A.P. 311(d). There is nothing in the record to show that the Commonwealth followed the procedure to certify its appeal pursuant to Rule 311(d). In fact, in its statement of jurisdiction, the Commonwealth indicated that it was appealing a final order pursuant to 42 Pa.C.S. § 742. Commonwealth’s Superior Court Brief at 1. Without any indication that it even attempted to comply with Rule 311(d), we must continue to treat the appeal as if it were intended to be an appeal of a final order, as indicated by the Commonwealth. (continued…)

[J-81A-2025 and J-81B-2025] - 13 trial court’s order may be treated as a final order for purposes of the Commonwealth’s

appeal to the Superior Court. Generally, we have understood that an order denying or

granting a habeas petition to be interlocutory. McClelland, 233 A.3d at 732 n.8 (“An order

denying or granting a writ of habeas corpus is interlocutory.”). If we determine that the

appeal is interlocutory and not otherwise authorized by law, then we must conclude that

the Superior Court lacked jurisdiction to hear this appeal.

To determine whether an interlocutory order resolving a habeas petition is

otherwise appealable under the law, we must begin with a review of our jurisprudence on

the appealability of habeas petitions. The right to the protections afforded by writs of

habeas corpus “have long been part of our Commonwealth’s history.” Commonwealth v.

Hess, 414 A.2d 1043, 1046 (Pa. 1980). Such petitions were “designed to test the legality

of the restraints upon an accused’s liberty.” Id. at 1045. The preamble of the Habeas

Corpus Act of 1785 15 stated that “personal liberty is a principal blessing derived from free

constitutions of government, and certain methods of proceeding should be prescribed, so

that all wrongful restraints thereof may be easily and speedily redressed.” Act of February

18, 1785, 2 Smith’s Laws 275, § 1. Our Charter has continued to recognize that “the

privilege of the writ of habeas corpus shall not be suspended, unless when in case of

rebellion or invasion the public safety may require it.” PA. CONST. art. I, § 14. While the

writ of habeas corpus is “simply a mode of procedure, its history is inextricably intertwined

with the growth of fundamental rights of personal liberty.” Hess, 414 A.2d at 1046. The

Further, there has been no suggestion from the Commonwealth that its appeal of the pretrial order should be treated otherwise. 15 Act of February 18, 1785, 2 Smith’s Laws 275 (“An Act for the better securing personal liberty, and preventing wrongful imprisonments.”).

[J-81A-2025 and J-81B-2025] - 14 principle underlying writs of habeas corpus affirms that if “imprisonment cannot be shown

to conform with fundamental requirements of law, the individual is entitled to his

immediate release.” Id. Thus, when a criminal defendant believes that the

Commonwealth has failed to establish its prima facie case by introducing the minimum of

competent evidence, 16 the defendant may submit a pretrial habeas petition to seek the

dismissal of the charges and his release from custody based on this purported failure.

Such a habeas petition would be filed and resolved before jeopardy could ever attach.

See Commonwealth v. Jones, 676 A.2d 251, 253 (Pa. Super. 1996) (“Under Pennsylvania

law, jeopardy attaches when the jury is sworn or, in a bench trial, when the trial court

begins to hear evidence.”).

The oldest case relied upon for the proposition that the Commonwealth may

appeal an order granting a habeas petition is our 1884 decision in Doyle v.

Commonwealth ex rel. Davis, 107 Pa. 20 (1884). 17 John Doyle was arrested in Warren

County and sentenced by virtue of a contempt order issued by the Court of Common

Pleas of Allegheny County. Id. at 20. He then filed a habeas petition in the Court of

16 “[A] prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes probable cause to warrant the belief that the accused committed the offense. Furthermore, the evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to be decided by the jury.” Commonwealth v. Perez, 249 A.3d 1092, 1102 (Pa. 2021) (citation and quotations omitted). 17 See, e.g., Commonwealth ex rel. Bryant v. Hendrick, 280 A.2d 110, 112 (Pa. 1971) (“We have ruled that an order entered in a habeas corpus proceeding discharging a prisoner from custody is reviewable on appeal.”) (citing Doyle, 107 Pa. 20); Hess, 414 A.2d at 1047 (“[T]he Commonwealth may appeal from an order discharging a defendant upon a writ of habeas corpus[.]”) (citing Hendrick, 280 A.2d at 112; Doyle, 107 Pa. 20); Commonwealth v. Merced, 265 A.3d 786, 790 (Pa. Super. 2021) (“Commonwealth may appeal from an order discharging a defendant upon a Writ of Habeas Corpus[.]”) (citing Hendrick, 280 A.2d at 112; Doyle, 107 Pa. 20).

[J-81A-2025 and J-81B-2025] - 15 Common Pleas of Warren County, which ultimately granted Doyle’s petition discharging

him from custody. Id. The Warren County court reasoned that the Allegheny County

sheriff arrested Doyle in Warren County for conduct in his official capacity as a court-

appointed receiver in Forest County. Id. On appeal to this Court, we explained that

[t]he sentence for contempt by the Common Pleas of Allegheny county was a judgment of said court which, however erroneous it might be, was, until vacated or reversed, binding upon the Common Pleas of Warren county; and that the latter court therefore erred in discharging the prisoner upon habeas corpus, such action being in effect equivalent to setting aside the said judgment and attachment of a court of co-ordinate jurisdiction.

Id. Thus, in Doyle, the defendant had already been sentenced for contempt, and the

grant of habeas relief effectively vacated that decision, despite the contempt order having

been issued by a court of coordinate jurisdiction.

Accordingly, Doyle was not concerned with the pretrial quashal of criminal charges.

Rather, it involved the violation of the coordinate jurisdiction rule, wherein one court

vacated the decision of a court of coordinate jurisdiction. Id. at 25 (“It is very evident that

this is substantially a review and reversal of the judgment on which the writ of attachment

was based; and the question is, whether one court can modify or set aside the judgment

of another court of co-ordinate jurisdiction.”). Therefore, the reason for its appealability

becomes apparent, as “[i]t is a matter adjudicated, and it belongs to the very essence of

governmental order that it cannot be reviewed except by the court that pronounced it, or

by its official superiors.” Id. (quoting In re Williamson’s Case, 26 Pa. 9, 9 (1855)).

However, while it is both procedurally and legally distinct, we cannot ignore that

the Doyle Court still recognized that it had jurisdiction “to hear and determine all, and all

manner of pleas, plaints and causes which shall be brought here from any other court of

[J-81A-2025 and J-81B-2025] - 16 this Commonwealth by virtue of any writ or process issued by the court or any judge

thereof for that purpose, in the manner then practiced and allowed[,]” which would have

included habeas petitions. Id. at 26. In 1884, the Doyle Court would have treated an

order discharging a petitioner from custody via a habeas petition as “essentially final,”

pursuant to its broad statutory authority under the Act of June 16, 1836, P.L. 784, No.

192, § 1. 18

This statutory scheme evolved over time, eventually authorizing jurisdiction

specifically over appeals from habeas petitions. By 1951, our General Assembly enacted

legislation that provided:

From the decision of any judge upon any petition for a writ of habeas corpus, or upon any order made pursuant to a hearing on the writ, an appeal may be taken as in other cases. When the basis of the petition is an alleged defect or illegality in a criminal proceeding, the appeal shall be to the court which has appellate jurisdiction in cases involving the crime with which the person imprisoned or detained is charged or of which he has been convicted. In all cases involving the

18 In relevant part, the Act provided: That the Supreme court of this commonwealth, shall have power to hear and determine all, and all manner of pleas, plaints, and causes which shall be brought, or removed there from any other court of this commonwealth, by virtue of any writ or process issued by the said court, or any judge thereof; for that purpose, in the manner now practised and allowed,[] to examine and correct all, and all manner of errors of the justices, magistrates, and courts of this commonwealth, in the process, proceedings, judgments and decrees, as well in criminal as in civil pleas or proceedings, and thereupon, to reverse, modify or affirm such judgments and decrees, or proceedings, as the law doth or shall direct; anti generally, to minister justice to all persons, in all matters whatsoever, as fully and amply, to all intents and purposes, as the said court has heretofore had power to do, under the constitution and laws of this commonwealth.

Act of June 16, 1836, P.L. 784, No. 192, § 1.

[J-81A-2025 and J-81B-2025] - 17 custody of minors or of persons alleged to be mentally ill, appeals shall be to the Superior Court. In all other cases, appeals shall be to the Supreme Court.

Act of May 25, 1951, P.L. 417, No. 98, § 7 (emphasis added). This statute expressly

authorized appellate jurisdiction over appeals from habeas petitions, 19 a statutory

principle that this Court continued to recognize in later years. See Commonwealth ex rel.

Fitzpatrick v. Mirarchi, 392 A.2d 1346, 1348 n.4 (Pa. 1978) (noting that “the

Commonwealth had the option of appealing … [the] grant of habeas corpus to the

Superior Court” pursuant to the Act of 1951). Despite this apparent statutory authority,

and that which existed when Doyle was decided, later decisions by this Court relied on

Doyle’s language regarding appealability of habeas petitions but divorced the principles

from its statutory foundations.

For example, nearly one-hundred years later in Bryant, two inmates brought

habeas petitions asserting that the conditions of their pre-trial detention constituted “cruel

and unusual treatment, prohibited by the Eighth Amendment of the United States

Constitution.” Bryant, 280 A.2d at 111. The lower court found that “the prison … was a

cruel, degrading and disgusting place” and thus granted their discharge from that

particular facility. Id. at 111-12. Hendrick, the superintendent of the prison, appealed

asserting, inter alia, that relief via a habeas petition was improper. Id. at 112. However,

prior to addressing that issue, the Bryant Court sua sponte raised the issue of jurisdiction.

Id. Based on its reading of Doyle—as opposed to an analysis of existing statutory

19 This statute was amended twenty years later, preserving the jurisdictional authority over habeas petitions, but eliminating the last two sentences of the section involving the Superior Court’s jurisdiction over cases involving the custody of minors and the mentally ill, as well as this Court’s jurisdiction over all other appeals. Act of June 3, 1971, P.L. 143, § 149.

[J-81A-2025 and J-81B-2025] - 18 authority—the Bryant Court determined that an appeal from a habeas petition was

properly before it. Id.

Addressing the merits of Hendrick’s argument, the Bryant Court explained that

“[t]raditionally in Pennsylvania and in many other jurisdictions, the writ of habeas corpus

has functioned only to test the legality of the petitioner’s commitment and detention.” Id.

Ultimately, its primary holding was “that habeas corpus is available to secure relief from

conditions constituting cruel and unusual punishment, even though the detention itself is

legal.” Id. at 113. Thus, the issue was not the appealability of an order quashing criminal

charges, but whether a habeas petition was the appropriate vehicle for the inmates’

claims. Id.

In one of the first cases where this Court actually addressed the appealability of

an order quashing criminal charges, we discussed the appropriate remedy when the order

the Commonwealth is appealing from is interlocutory. In In re Riggins, 254 A.2d 616, 617

(Pa. 1969), Louis Riggins was charged with murder with bail set at $1,000. At the

preliminary hearing, the judge ruled that a prima facie case had not been made out and

discharged the defendant. The Commonwealth appealed. 20 The Court refused to

consider the merits stating that “it is apparent that the appeal must be quashed.” Id. (citing

McNair’s Petition, 187 A. 498, 501 (Pa. 1936)). The Court explained that the “procedure

to be followed” was that “if the Commonwealth deems itself aggrieved by [a magistrate’s]

20 The Commonwealth argued that rearrest would have been an appropriate remedy had the order been entered by a magistrate; however, because the order was entered by a common pleas court judge, the Commonwealth asserted that it was not an appropriate remedy. This Court explained that the Commonwealth’s characterization of the judge’s status was incorrect, because he was not yet a common pleas judge when he entered the relevant order. Nonetheless, the Court found that either judicial status made no difference in its review of the appeal. Riggins, 254 A.2d at 617-18 & n.2.

[J-81A-2025 and J-81B-2025] - 19 decision [to discharge the defendant] it may bring the matter again before any other officer

empowered to hold preliminary hearings.” Riggins, 254 A.2d at 617. The Court stated

that “[i]t [was] clear … that the Commonwealth has not been put out of court, and that the

instant appeal is interlocutory.” Id. Accordingly, we quashed the appeal. Id. We

continued to recognize this remedy decades after our decision in Riggins. See, e.g.,

Mirarchi, 392 A.2d at 1348 (explaining “that re-arrest is the appropriate procedure and the

Commonwealth’s only recourse where charges are dismissed and the defendant

discharged upon a finding of a lack of a prima facie case”); Commonwealth v. Prado, 393

A.2d 8, 9 (Pa. 1978) (noting that the orders discharging criminal charges for lack of a

prima facie case “[o]rdinarily … are not appealable since the individual is subject to

rearrest”); Commonwealth v. Thorpe, 701 A.2d 488, 489-90 (Pa. 1997) (noting that “[a]s

a general rule, the Commonwealth must be free to present its case again even after it has

failed to convince a neutral magistrate that it has a prima facie case[;]” however, the

Commonwealth cannot repeatedly rearrest as a means of harassing a defendant).

Shortly after our pronouncement in Riggins regarding the Commonwealth’s

remedy of reinstituting charges, we relied on our then-existing statutory authority

concerning habeas petitions to draw a distinction between cases where charges are

dismissed at a preliminary hearing and those cases involving pretrial grants of habeas

petitions quashing the charges. Commonwealth v. Hetherington, 331 A.2d 205, 208-09

(Pa. 1975). 21 The former cases, we explained, are interlocutory because it “is not a final

21 The criminal defendant in Hetherington “incorrectly styled his application” as a “motion to quash.” Commonwealth v. Hetherington, 331 A.2d 205, 209 (Pa. 1975). However, because the substance of the petition was to test the finding of a prima case pretrial, this Court recognized that it was actually a habeas petition.

[J-81A-2025 and J-81B-2025] - 20 determination, such as an acquittal, and only entitles the accused to his liberty for the

present, leaving him subject to rearrest.” Id. at 208. The latter we found to be “a proper

subject for appellate review” based on our then-existing statutory framework that made

habeas petitions “a proper subject for appellate review. Act of May 25, 1951, P.L. 415, [§]

7 as amended, Act of June 3, 1971, [P.L. 143, § 149].” Id. at 209.

However, the foundation of these decisions and this Court’s jurisdiction over such

matters would change shortly after our decision in Hetherington. In 1978, the statutory

authority expressly conferring jurisdiction over appeals from habeas petitions would be

repealed by the Judiciary Act Repealer Act 22 when our General Assembly enacted the

Judicial Code. With the adoption of the Judicial Code, new rules controlled the right to

appellate review of all judicial orders. These are the same rules guiding our analysis

today.

Aside from limited exceptions, appellate courts only have jurisdiction over appeals

of final orders. Commonwealth v. Harris, 32 A.3d 243, 248 (Pa. 2011); see also 42

Pa.C.S. § 5105(a) (There is a right of appeal under this subsection from the final order

(including an order defined as a final order by general rule) of every … Court[.]”). This

Court, “by general rule,” was authorized to define what is a final order. Thus, we have

defined a final order as any order that disposes of all claims and all parties. Pa.R.A.P.

341(b)(1). Interlocutory orders that do not end the entire case may also be appealed

under circumstances provided by this Court. 42 Pa.C.S. § 5105(c) (“The governing

22 Act of April 28, 1978, P.L. 326 & 344, No. 1978-53.

[J-81A-2025 and J-81B-2025] - 21 authority[23] shall be responsible for a continuous review of the operation of section 702(b)

(relating to interlocutory appeals by permission)[24] and shall from time to time establish

by general rule rights to appeal from such classes of interlocutory orders, if any, from

which appeals are regularly permitted pursuant to section 702(b).”). These appealable

interlocutory orders are as follows: an order certified by the trial court as final; 25

interlocutory orders appealed as of right; 26 interlocutory appeals by permission; 27 and

collateral orders. 28 Accordingly, if an appeal does not fit within one of these categories,

the appellate court does not have jurisdiction to entertain the appeal.

Despite this seismic shift in our rules concerning the appealability of orders, courts

addressing the appealability of habeas petitions failed to consider these new rules in their

23 The Judicial Code defines “Governing authority” as “The Supreme Court … [or] any

agency or unit of the unified judicial system exercising a power or performing a duty pursuant to section 1721 (relating to delegation of powers).” 42 Pa.C.S. § 102. 24 See 42 Pa.C.S. § 702(b) (explaining that an interlocutory order may be appealed when a court is “of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter” a court may permit an appeal). 25 See Pa.R.A.P. 341(c) (stating that the trial “may enter a final order as to one or more

but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered”). 26See 42 Pa.C.S. § 702(a) (“An appeal authorized by law from an interlocutory order in a matter shall be taken to the appellate court having jurisdiction of final orders in such matter.”); see also Pa.R.A.P. 311 (“Interlocutory Appeals as of Right”). 27 See Pa.R.A.P. 312 (“Interlocutory Appeals by Permission”). 28 See Pa.R.A.P. 313(b) (“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.”).

[J-81A-2025 and J-81B-2025] - 22 jurisdictional analyses. Instead, they would look to the holdings of cases resolved under

the since-repealed statutory framework concerning habeas petitions, and, in so doing,

would perpetuate the error of relying on the language of these cases regarding the

appealability of habeas petitions but divorced this language from its statutory foundations.

For example, in Hess, we asserted that the “rules of appealability are not

reciprocal” when it comes to the appeal of orders granting habeas petitions. Hess, 414

A.2d at 1047. Accordingly, we held that “the Commonwealth may appeal from an order

discharging a defendant upon a writ of habeas corpus[.]” Id. (citing Bryant, 280 A.2d 110;

Doyle, 107 Pa. 20). On the other hand, we reasoned, that “the defendant may not

immediately appeal from the denial of his pretrial application habeas corpus relief.” Id.

(citing See, e.g., Commonwealth ex rel. Fisher v. Stitzel, 211 A.2d 457, 459 (Pa. 1965);

Commonwealth ex rel. Bittner v. Price, 235 A.2d 357, 358 (Pa. 1967); Commonwealth ex

rel. Gordy v. Lyons, 252 A.2d 197, 198 (Pa. 1969); Commonwealth v. Myers, 322 A.2d

131, 132 (Pa. 1974); Commonwealth ex rel. Tiller v. Dye, 110 A.2d 748 (Pa. Super.

1955)). 29 The Hess Court made no attempt to review any of these cases to justify its

conclusion that there exists a lack of reciprocity between appeals filed by a defendant or

29 Given that these cases cited by the Hess Court were all decided when the previous statutory framework expressly authorized this Court’s jurisdiction over appeals from habeas petitions without a distinction based on party, it is unclear why these cases were resolved on this basis. No detailed explanation is provided in any of these cases. However, in at least two instances, there were Justices who wrote to disagree, explaining that this Court did have jurisdiction to hear the cases, pursuant to the then-existing statutory authority. See Myers, 322 A.2d at 133 (“[T]his Court should reach the merits of appellant’s claim, raised by a petition for habeas corpus … See Act of May 25, 1951, P.L. 415, § 7, as amended, 12 P.S. § 1907 (Supp.1974).”) (Roberts & Manderino, JJ., dissenting); Price, 235 A.2d at 358 (“I do not agree than an appeal from the denial of a habeas corpus petition is interlocutory and therefore must be quashed.”) (Roberts, J., concurring).

[J-81A-2025 and J-81B-2025] - 23 the Commonwealth of an order granting or dismissing a habeas petition. Instead, it

merely cites to these cases in holding that “it is firmly established” that this is how our

rules work. Id. at 1048. However, by attributing holdings to Doyle and Bryant that were

never actually held in those cases, and by ignoring the difference in the jurisdictional laws

that existed when those cases were decided, the Hess Court’s analysis is severely

flawed. 30 In fact, it is this same exact flaw that has been perpetuated by the Superior

Court which has brought this issue to the forefront in the instant matters.

In Sutton, the Superior Court acknowledged that the Commonwealth’s appeal was

interlocutory, but the court “sua sponte determine[d] that [it] ha[d] jurisdiction[,]” pursuant

to its previous decision in Harris I. Sutton, 313 A.3d at 1074 n.3 (citing Harris I, 269 A.3d

at 538-39). In Strope, the Superior Court explained that “[a]lthough the court dismissed

the charges without prejudice,” its jurisdiction was proper pursuant to its decisions in

Harris I and Merced. Strope, 2024 WL 1715348, at *1 n.2 (citing Merced, 265 A.3d at

790-91; Harris I, 269 A.3d at 538-39). As will be discussed herein, the basis for the

Superior Court to establish jurisdiction in these cases, Harris I and Merced, engaged in

the same analytical error as this Court in Hess by relying on language from inapt cases

operating under an entirely different statutory framework.

In Harris I, the Superior Court merely relied upon its decision in Merced, wherein

it offered a more comprehensive approach to the jurisdictional question of a pretrial order

dismissing charges on a habeas petition. Harris I, 269 A.3d at 539. The panel recognized

30 Despite its flawed analysis, the Hess Court ultimately arrived at the correct result. Under the controlling rules at the time of the defendant’s appeal of the order denying his habeas petition in Hess, the Superior Court did not have jurisdiction to entertain that interlocutory appeal. Hess, 414 A.2d at 1047-48.

[J-81A-2025 and J-81B-2025] - 24 that Merced found that it had jurisdiction and that because it was “a published decision

that answers the jurisdictional question” it constituted “binding precedential authority.” Id.

(citing Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (“A panel [of this

Court] is not empowered to overrule another panel of the Superior Court.”)).

Accordingly, we look to Merced, wherein the Superior Court, faced with the

Commonwealth’s appeal from a partial grant of a defendant’s pretrial habeas petition,

questioned its own jurisdiction and set forth to “examine the history of habeas corpus.”

Merced, 265 A.3d at 789. In so doing, the Merced court traced our common law tradition

through our early statutory schemes related to habeas petitions. Id. at 789-91. Based on

its review, it stated that it was well-established that while the Commonwealth could appeal

from an order discharging a defendant based upon a habeas petition, the defendant could

not appeal its denial. Id. at 790 (citing Bryant, 280 A.2d 110; Doyle, 107 Pa. 20). Further,

it relied on our previous decision in Karetny, which will be discussed in greater detail

below, for the proposition that “the Commonwealth may appeal from a trial court’s order

dismissing a felony charge based on a pretrial petition for Writ of Habeas Corpus.” Id.

(quoting Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005)).

Although the Merced court likely had jurisdiction, 31 it did not identify the proper

basis and, in doing so, it misconstrued much of this Court’s case law to reach that

31 The circumstances before the Merced court would have established jurisdiction under our instant analysis. The Commonwealth in Merced appealed pursuant to Pa.R.A.P 311(d). Merced, 265 A.3d at 789. However, there was no statement of jurisdiction attached to its brief indicating its appeal was filed on that basis. Id. Merced conceded that the court had jurisdiction on the basis that the prosecution would have been substantially handicapped, under Rule 311(d). Id. Although jurisdiction “may not be conferred by consent of the parties[,]” there was a separate basis for the Merced court’s jurisdiction. In re Admin. Order No. 1-MD-2003, 936 A.2d 1, 5 (Pa. 2007). In Merced, the (continued…)

[J-81A-2025 and J-81B-2025] - 25 conclusion. The Harris I court perpetuated that error by relying on Merced’s analysis.

The intermediate court’s reliance on Bryant and Doyle in reaching that conclusion is inapt.

As previously discussed, neither Doyle nor Bryant involved the pretrial quashal of

charges. More importantly, the Court at the time Doyle and Bryant were decided had

express statutory authority to accept such matters on appeal. Due to changes in our law,

these cases are no longer germane to our current jurisdictional review. We must address

appellate jurisdiction under the statutory paradigm that exists today, see supra pp. 21-22.

To begin, we must determine the nature of the orders appealed to the Superior

Court in the instant matters. Generally, we have understood an order denying or granting

a habeas petition to be interlocutory. McClelland, 233 A.3d at 732 n.8. This has been

our understanding with any order that results in the dismissal of all charges due to the

Commonwealth’s failure to establish a prima facie case at a preliminary hearing.

Commonwealth v. LaBelle, 612 A.2d 418 (Pa. 1992). In LaBelle, we reasserted our

general rule that an order dismissing a case for failure to establish a prima facie case is

not final. “[T]he failure to make a prima facie case has been treated as an interlocutory

matter, for at the time it is determined that the prosecution’s evidence is deficient,

jeopardy has not attached and the state is not out of court because of the adverse

determination. It may add to its case and resubmit the case for prosecution.” Id. at 420.

We have reaffirmed our holding from Riggins “that re-arrest is the appropriate

procedure and the Commonwealth’s only recourse where charges are dismissed and the

trial court dismissed some counts, but not others. “[A]n order quashing a charge is unquestionably ‘final’ as to that charge because a trial on the remaining charges would permanently preclude trial on the quashed charge.” Karetny, 880 A.2d at 512-13 (emphasis added); see also infra pp. 28-29. Accordingly, the Merced court had jurisdiction to entertain the appeal, though not for the reasons stated in its analysis.

[J-81A-2025 and J-81B-2025] - 26 defendant discharged upon a finding of a lack of a prima facie case[.]” Mirarchi, 392 A.2d

at 1348. Our procedures for reinstituting charges following the dismissal of charges have

since been codified in our Rules of Criminal Procedure. According to Pennsylvania Rule

of Criminal Procedure 544(A): “[w]hen charges are dismissed or withdrawn at, or prior to,

a preliminary hearing, or when a grand jury declines to indict and the complaint is

dismissed, the attorney for the Commonwealth may reinstitute the charges by approving,

in writing, the re-filing of a complaint with the issuing authority who dismissed or permitted

the withdrawal of the charges.” Pa.R.Crim.P 544(A).

The reinstitution of charges remains the appropriate remedy for the

Commonwealth when all charges have been dismissed because double jeopardy has not

been implicated. “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). Accordingly, whether the charges are dismissed

before the magistrate or by a common pleas judge on a pretrial habeas petition, jeopardy

has not attached.

Without the express authorization of appellate jurisdiction over a grant of a habeas

petition, an order granting relief pursuant to a habeas petition is no longer distinct from

any other interlocutory order. See McClelland, 233 A.3d at 732 n.8 (“An order denying or

granting a writ of habeas corpus is interlocutory.”); LaBelle, 612 A.2d at 419-20 (noting

that the “failure to make a prima facie case” at a preliminary hearing “has been treated as

an interlocutory matter” because “the state is not out of court because of the adverse

determination”). Jeopardy has not attached under such circumstances. And the

Commonwealth is not precluded from reinstituting the charges when the charges are

[J-81A-2025 and J-81B-2025] - 27 dismissed without prejudice. This is true so long as the statute of limitations has not

expired. Thorpe, 701 A.2d at 489 (“As a general matter, a defendant may be rearrested

after charges have been dismissed at a preliminary hearing so long as the statute of

limitations has not expired.”); see also Pa.R.Crim.P. 544, cmt. (“[T]he charges must be

reinstituted prior to the expiration of the applicable statute(s) of limitations.”).

There are, however, circumstances in which the Commonwealth can appeal an

order granting a habeas petition. Where appropriate, the Commonwealth could follow the

procedure set forth in our rules for seeking an interlocutory appeal as of right. Under

Pennsylvania Rule of Appellate Procedure 311(d), the Commonwealth can certify in its

notice of appeal that the interlocutory order must be challenged on the basis that it would

otherwise “terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d).

Relatedly, there are circumstances where the dismissal of some charges and not others

would handicap the prosecution in such a way that would make an appeal from a grant

of habeas relief appropriate. That was precisely what took place in Karetny.

In Karetny, after numerous charges were held over for trial in the Philadelphia

Court of Common Pleas, the defendants filed motions to quash the charges. Karetny,

880 A.2d at 511. Ultimately, the court of common pleas granted the motions to quash

two sets of charges. The Commonwealth appealed, arguing that its appeal was properly

within this Court’s jurisdiction, because if “the Commonwealth were forced to wait to seek

review [until after trial], it could be unable to try the defendants” on the quashed charges

under double jeopardy principles. Id. at 512. We agreed, explaining “that an order

quashing a charge is unquestionably ‘final’ as to that charge because a trial on the

remaining charges would permanently preclude trial on the quashed charge.” Karetny,

[J-81A-2025 and J-81B-2025] - 28 880 A.2d at 512-13 (emphasis added). Thus, when a case proceeds to trial after some

charges are quashed, jeopardy attaches to all of the original charges once the trial begins,

creating a constitutional bar against reinstituting the quashed charges.

There are other extraordinary circumstances when an appeal of a similar order is

appropriate. For instance, in Prado, the defendant was arrested and charged with

homicide and other related charges. Prado, 393 A.2d at 9. Following a preliminary

hearing, the Commonwealth failed to meet its burden and Prado was discharged. Id. A

warrant for his rearrest was issued one month later. Id. Following the second preliminary

hearing, the Commonwealth again could not establish a prima facie case. Id. The

Commonwealth attempted to file another petition to rearrest Prado, but because no

additional evidence was presented, the petition was denied. Id. The Commonwealth

appealed the order denying that petition. Id. While we recognized that “[o]rdinarily, orders

such as the ones before us are not appealable since the individual is subject to rearrest[,]”

under Philadelphia criminal rules 32 the “only judge empowered to conduct a preliminary

hearing for a homicide case refused to grant the petition to rearrest[.]” Id. at 10. Under

those circumstances, we understood the prosecution to be “effectively barred from

rearresting” Prado. Id. Because there was no other recourse for the Commonwealth, we

found that a denial of such an order to be “final” and therefore “subject to appellate

review[.]” Id.

To summarize, there is no discernible basis under our current law to authorize an

appeal from an interlocutory order granting a habeas petition that dismisses all of the

32 Specifically, at the time, “[u]nder Philadelphia Criminal Rules 500(H) and 605, … only the assigned Motions Court Judge may review a request for rearrest in a homicide case.” Prado, 393 A.2d at 9-10.

[J-81A-2025 and J-81B-2025] - 29 charges when the Commonwealth has the ability to reinstitute those charges. 33 There

exist limited circumstances when an appeal will lie from a pretrial grant of a habeas

petition, such as when the Commonwealth is precluded from reinstituting the charges.

Accordingly, our jurisdictional analysis does not apply when: the lower court’s order

dismisses the charges with prejudice; the statute of limitations would otherwise expire;

the Commonwealth appeals, pursuant to Pa.R.A.P. 311(d), and properly certifies that the

order “will terminate or substantially handicap the prosecution[;]” or the Commonwealth’s

attempt to rearrest is otherwise blocked. Moreover, if some but not all of the charges

are quashed, the Commonwealth would be permitted to appeal, as it would otherwise risk

attaching jeopardy to those charges by proceeding to trial on the remaining charges,

thereby permanently precluding prosecution of the quashed charges. Karetny, 880 A.2d

at 512-13. With that framework established, we proceed with the instant matters.

Here, it is undisputed that the court of common pleas quashed all of the Appellants’

charges without prejudice. Order, 2/8/2023 (Sutton) (“The charges in the above are

hereby quashed without prejudice. Defendant is discharged.”); Order, 1/18/2023 (Strope)

(“The charges in the above are hereby quashed without prejudice. Defendant is

discharged.”). With respect to the statute of limitations, Sutton and Strope were both

33 Even though petitions for rearrest are the appropriate redress for the Commonwealth, that does not mean that this Court condones unlimited attempts to rearrest a criminal defendant. See, e.g., Prado, 393 A.2d at 11 (“We must concur with the court’s refusal to allow the prosecution without any assertion of additional evidence a ‘third bite at the apple.’”); Thorpe, 701 A.2d at 490-91 (“[T]he Commonwealth arrested the defendant three times over a period of nearly two years, imprisoned him for five months, was unprepared to proceed at the time of at least five preliminary hearings, and when it finally did proceed, failed to present a prima facie case. It now seeks to arrest the defendant a fourth time and to present its case again … . The Commonwealth’s conduct, as a matter of law, constitutes impermissible harassment.”).

[J-81A-2025 and J-81B-2025] - 30 charged with delivery of a controlled substance which is subject to a five-year statute of

limitation from the date the crime was committed. 42 Pa.C.S. § 5552(b)(2). Both sets of

alleged crimes were purportedly committed in early 2022. Accordingly, there is nothing

precluding the Commonwealth from reinstituting the charges and rearresting the

Appellants to proceed with new preliminary hearings and the opportunity to produce

additional evidence in an attempt to establish a prima facie case. Under these

circumstances, this remains the Commonwealth’s “only recourse where charges are

dismissed and the defendant discharged upon a finding of a lack of a prima facie case[.]”

Mirarchi, 392 A.2d at 1348.

Rather than proceed with reinstituting those charges, the Commonwealth

appealed the orders. In both matters, the Commonwealth asserted that it was appealing

from a final order. There is no dispute that the orders themselves were interlocutory.

See, e.g., Sutton, 313 A.3d at 1074 n.3 (noting that the case involved “the

Commonwealth’s interlocutory appeal from a pretrial order”); Strope, 2024 WL 1715348,

at *1 n.2 (acknowledging the interlocutory nature of the lower court’s order by noting that

“the court dismissed the charges without prejudice”). Based on the review of our case

law and the current state of the law regarding jurisdiction, there was no basis for the

Superior Court to assume appellate jurisdiction over the Commonwealth’s appeals.

IV. Conclusion The orders from which the Commonwealth appealed were not final orders within

the meaning of Pa.R.A.P. 341, and thus the Superior Court did not have appellate

jurisdiction. 42 Pa.C.S. § 742. Without jurisdiction to hear the appeals, its orders are

void ab initio. McCutcheon, 788 A.2d at 346. Accordingly, the Superior Court’s orders

are vacated and these appeals are quashed.

[J-81A-2025 and J-81B-2025] - 31 Chief Justice Todd and Justices Dougherty, Wecht, Brobson and McCaffery join

the opinion.

Justice Brobson files a concurring opinion.

Justice Mundy files a dissenting opinion.

[J-81A-2025 and J-81B-2025] - 32