Petition for Review, treated as a Petition for Allowance of Appeal
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
This matter arose after the trial court declared a mistrial during Petitioner Jane C. Orie's trial on criminal charges related to the alleged use of government employees for non-government related work. Following the scheduling of a retrial, Petitioner filed a Motion to Dismiss the charges on grounds of double jeopardy. The trial court dismissed the double jeopardy challenge as frivolous and the Superior Court denied review. Petitioner then filed the instant Petition for Review.
The primary question before this Court relates to the availability and scope of pre-trial appellate review of a trial court's determination that a petitioner's double jeopardy challenge is frivolous. As explained below, we will treat Petitioner's "Emergency Petition for Review in the Nature of a Writ of Prohibition/Application for Extraordinary Relief and Stay of Proceedings" as a Petition for Allowance of Appeal ("PAA"). See Pa.R.A.P. 1114 Note (effective March 7, 2011). The PAA is granted, in part, to consider the following two questions as framed by Petitioner:
1) Whether this Court should review the trial court's determination that the Petitioner's double jeopardy motion is "frivolous" in light of the unprecedented grant of a mistrial during jury deliberations based on allegedly forged documents; and
2) Whether a retrial should be barred on double jeopardy grounds because the trial court hastily granted a mistrial without considering less drastic alternatives, the authenticity of the documents was before the jury and for the jury and not the trial court, the prosecution had ample opportunity to challenge them, they were not material and a mistrial was granted to preclude the jury from acquitting the Petitioner.
The Petition is otherwise denied. We vacate the Superior Court's order except insofar as the court denied the challenge to the trial court's recusal decision. The trial court having continued the retrial until October 3, 2011, Petitioner's request for a stay before this Court is dismissed as moot.*fn1
Petitioner is a Pennsylvania Senator, representing the 40th Senatorial District. Following a grand jury investigation and presentment recommending criminal charges, the Allegheny County District Attorney's Office charged her with three counts of theft of services, three counts of conflict of interest, one count of criminal conspiracy, and three counts of tampering with or fabricating physical evidence. A jury trial commenced in Allegheny County presided over by the Honorable Jeffrey A. Manning on February 8, 2011. The trial lasted over three weeks and the jury began its deliberations in the late afternoon hours on March 2, 2011.
On March 3, 2011, as the jury was starting its first full day of deliberations, the Commonwealth informed the trial court that it believed there had been a fraud upon the court. The trial court halted jury deliberations. Following the arrival of defense counsel, the Commonwealth alleged that two defense exhibits had been forged. Ultimately, after permitting both parties to argue the appropriate remedy for the alleged forgery and allowing the Commonwealth to present expert testimony in support of the allegation that the documents were forged, the trial court declared a mistrial.
The trial court scheduled a new trial date. Petitioner thereafter filed a motion to bar retrial on grounds of double jeopardy and to dismiss the charges with prejudice, a motion to recuse the trial judge, and a motion for the appointment of the Pennsylvania Attorney General's Office to assume the investigation of the altered documents.
On April 4, 2011, the trial court filed an order with accompanying opinion, denying all of the motions. The trial court denied the double jeopardy motion, finding that the claim was "frivolous as a matter of law, without a shred of support in the record and clearly interposed solely to delay retrial in this matter." See Trial Court opinion, 4/4/11, at 10. The trial court noted that Petitioner had presented fraudulent evidence; the fraudulent evidence was material to the defense case; and the issue arising from the discovery of the fraud was a fact question for the trial court to decide. The trial court also stated that it had considered other options and Petitioner had taken the position that the trial court should either do nothing or declare a mistrial. Separately, the trial court addressed Petitioner's recusal request and concluded that it could continue fairly and impartially in the case.
Petitioner appealed the trial court's order to the Superior Court as if it was a final order under 42 Pa.C.S. § 742 and also asked permission to appeal it as an interlocutory order pursuant to 42 Pa.C.S. § 702(b) and Pa.R.A.P. 312, 1311, 1501 et seq. Petitioner raised both the double jeopardy and the recusal claims. Petitioner did not request a stay of the trial court proceedings from either the trial court or the Superior Court. By per curiam order dated April 13, 2011, the Superior Court treated the appeal strictly as a petition for review, rather than as a § 742 appeal as of right, and denied relief by the following order:
And now, upon consideration of the petition for review filed by petitioner, the interlocutory appeal filed based on double jeopardy grounds is DENIED pursuant to Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986) which provides that an interlocutory appeal is unwarranted where the double jeopardy claims are deemed frivolous and review may be obtained on direct appeal. Further, the petition for review from the denial of recusal is DENIED. Superior Court ...