DENIAL OF MOTION TO CONSOLIDATE DID NOT TERMINATE OR SUBSTANTIALLY HANDICAP PROSECUTION
The Superior Court has held that the trial court’s denial of the Commonwealth’s Motion to Consolidate did not terminate or substantially handicap the prosecution and was not appealable under Rule 311(d). Commonwealth v. Woodard, No. 103 WDA 2015 (March 15, 2016).
The Commonwealth charged Joshua N. Cambric, Jeremy Woodard, and Keith Reed with homicide, conspiracy and other offenses related to the killing of Tony Phillips on March 30, 2014, in Johnstown. On October 9, 2014, the Commonwealth filed a motion to consolidate based on Pa.R.Crim.P. 582(A)(2), which provides, “[d]efendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” The trial court denied the motion on December 11, 2014.
The Commonwealth filed a motion for reconsideration, which the trial court denied. The Commonwealth then filed a notice of appeal in each case, certifying that the orders denying joinder will terminate or substantially handicap the prosecution.
Whether the Superior Court possesses appellate jurisdiction over the trial court’s denial of the Commonwealth’s Motion to Consolidate?
The Commonwealth’s appeal of the order denying its Motion to Consolidate must be quashed because the order is not appealable under Rule 311(d).
Pennsylvania Rule of Appellate Procedure 311(d) provides:
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.
The Superior Court reasoned that although Rule 311(d) permits an appeal as of right, prior case law has continually placed limits on the scope of this right as it pertains to non-evidentiary issues. Thus, the court will not “accept blindly the Commonwealth’s certification of substantial hardship” when appeal is sought for non-evidentiary interlocutory orders.
The rule authorizes the Commonwealth to appeal any pre-trial order that has the potential to affect the Commonwealth’s ability to meet its burden of proof. However, since the Commonwealth is free to seek conviction on all counts, against each defendant, in three separate trials, the denial of the motion for joinder does not terminate or substantially handicap the prosecution and is not appealable under Rule 311(d).
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