Appeal from Order of Superior Court entered February 1, 1985, at No. 259 Philadelphia 1985, reversing Order of Court of Common Pleas of Chester County entered January 30, 1985, at Criminal No. 1676-84
Stuart Suss, Asst. Dis. Atty., for appellant.
Jeremiah Kane, Asst. Public Defender, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a concurring and dissenting opinion.
The question here presented is whether an interlocutory appeal pursuant to Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), should be permitted from the denial of a motion to dismiss an information on double jeopardy grounds where the hearing court has determined the motion to be frivolous. Having fully considered that issue, we conclude that in such circumstances an interlocutory appeal is unwarranted and review must be sought by means of a direct appeal following retrial.
Appellee James Brady was charged with violating section 3731 of the Vehicle Code, 75 Pa.C.S. § 3731, "Driving under influence of alcohol or controlled substance." Prior to trial the Court of Common Pleas, on motion of appellee, excluded any testimony concerning his prior admission to an Accelerated Rehabilitative Disposition ("ARD") program in connection with a prior violation of section 3731.*fn1 Trial commenced on January 8, 1985. During trial the arresting officer was asked by the prosecution if he had had an opportunity to observe appellee. In responding, that officer testified that appellee mentioned to another officer at the scene that he (the officer testifying) had stopped appellee on a previous occasion. Defense counsel then made a motion for a mistrial, which was granted.
On January 28, 1985, appellee filed a motion to dismiss the information asserting a double jeopardy claim. After conducting a hearing on the motion, the hearing court issued a memorandum opinion finding that there had been no intentional prosecutorial misconduct, concluding that the double jeopardy claim was frivolous, and denying the motion to dismiss on January 30, 1985. That same day, having been advised that appellee had filed a notice of appeal in the Superior Court, the Court of Common Pleas by separate order declined to stay retrial pending appeal. Later in the day Judge Cavanaugh temporarily stayed a retrial, and on February 1, 1985, the temporary stay was continued pending disposition of the appeal before that Court.
The Commonwealth filed an application to "Lift Stay of Criminal Trial" in this Court. The Commonwealth subsequently filed a second application requesting this Court to assume plenary jurisdiction of the matter. We granted the application to assume plenary jurisdiction, directed a transfer of the pending Superior Court appeal to this Court, and consolidated that appeal and the application to lift the stay. We further directed that the case be listed for oral argument with briefing limited to the question of the applicability of Commonwealth v. Bolden, supra.
The threshold issue in Commonwealth v. Bolden, supra, was whether an immediate appeal should be permitted from an order denying a pretrial motion to dismiss an indictment on double jeopardy grounds. The question there considered was whether a double jeopardy contention established the exceptional circumstance which would require a departure from the basic rule limiting an appeal to the review of a final judgment. See, e.g., Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978); Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974); Commonwealth v. Bunter, 445 Pa. 413, ...