J-S56011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DERRICK EDWARDS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3429 EDA 2018

Appeal from the Order Entered September 11, 2018

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0002611-2013, 

CP-51-CR-0002614-2013, CP-51-CR-0002617-2013, 

CP-51-CR-0002815-2013, CP-51-CR-0002820-2013, 

CP-51-CR-0002853-2013, CP-51-CR-0002862-2013, 

CP-51-CR-0002864-2013

BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.: FILED JULY 29, 2020

Derrick Edwards appeals from the order entered in the Philadelphia 

County Court of Common Pleas denying his motion to dismiss based on double 

jeopardy grounds. After careful review, we affirm. 

In 2012, Edwards, along with two co-conspirators, drove around 

Philadelphia robbing victims at gunpoint. During one of the robberies, Edwards 

shot the victim twice. Edwards was charged with various crimes related to 

these events at eight separate docket numbers. The eight cases proceeded to 

a consolidated trial. 

After a jury trial, Edwards was convicted of eight counts each of robbery, 

conspiracy to commit robbery, carrying firearms without a license, carrying 
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firearms on the public streets of Philadelphia, and possessing an instrument 

of crime, and one count each of attempted murder, aggravated assault, and 

conspiracy to commit aggravated assault. Edwards was sentenced to an 

aggregate term of twenty-two to forty-four years’ incarceration. 

In Edwards’ direct appeal, involving all eight lower-court docket 

numbers, he raised a challenge pursuant to Batson v. Kentucky, 476 U.S. 

79 (1986), based on the Commonwealth’s use of its peremptory challenges to 

strike African-Americans from the jury. This Court concluded that Edwards 

demonstrated a Batson violation by showing the Commonwealth struck at 

least one juror with discriminatory intent. See Commonwealth v. Edwards, 

177 A.3d 963 (Pa. Super. 2018). We therefore vacated Edwards’ judgment of 

sentence and remanded the case for a new trial. See id. at 979.

Edwards filed a motion to dismiss arguing retrial was barred on double 

jeopardy grounds. The trial court entered a single order denying the motion 

as to all eight docket numbers. On September 27, 2018, Edwards filed an 

interlocutory appeal by filing eight notices of appeal at each docket number, 

each with a different time stamp, and each listing all eight trial court docket 

numbers.

In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme 

Court held that “where a single order resolves issues arising on more than one 

docket, separate notices of appeal must be filed for each case.” Id. at 971. 
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“The failure to do so requires the appellate court to quash the appeal.” Id. at 

976-977; see also Pa.R.A.P. 341, Official Note. 

A divided three-judge panel of this Court then filed a published opinion 

in Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019), construing 

Walker to mean that “we may not accept a notice of appeal listing multiple 

docket numbers, even if those notices are included in the records of each 

case.” Creese, 216 A.3d at 1144. Instead, the panel concluded “a notice of 

appeal may contain only one docket number.” Id. (emphasis added). The 

panel quashed the appeal. Neither party filed a petition for allowance of appeal 

with the Supreme Court, rendering Creese a final disposition and setting 

precedent in this Court.

Our Court recently granted en banc review to decide whether Walker 

and Rule 341 dictate that only one number may appear on a notice of appeal. 

In an opinion filed in July 2020, this Court expressly overruled Creese’s

determination that “a notice of appeal may contain only one docket number.” 

Commonwealth v. Johnson, ___ A.3d.___ (Pa. Super. 2020) at *___. As a 

result, the fact that Edwards’ notice of appeal contained more than one 

number is of no consequence.

We observed that Rule 341 and Walker make no mention of case 

numbers on a notice of appeal. See id. To be sure, the error in Walker was 

the filing of a single notice of appeal affecting multiple cases and several 

defendants. The bright-line rule set forth in Walker only required an appellant 
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to file a “separate” notice of appeal for each lower court docket the appellant 

was challenging.

Here, it appears Edwards filed a separate notice of appeal for each of 

the eight dockets below, because all eight notices have different time stamps. 

The fact that the notices contained all eight lower court numbers is of no 

consequence. Indeed, the Rules of Appellate Procedure are to be liberally 

construed to effectuate justice. Pa.R.A.P. 105(a); see also 1 Pa.C.S.A. § 

1928(c). We should not invalidate an otherwise timely appeal based on the 

inclusion of multiple docket numbers, a practice that the Rules themselves do 

not expressly forbid. Therefore, we decline to quash this appeal and will review 

the merits of Edwards’ claim.

Before we may address the merits, we must determine whether we have 

jurisdiction over this appeal. Instantly, Edwards claims jurisdiction properly 

lies in this Court pursuant to Pa.R.A.P. 311, relating to interlocutory appeals 

as of right. The only section of Rule 311 that may be relevant here provides 

in pertinent part: 

(a) General rule. An appeal may be taken as of right and without 

reference to Pa.R.A.P. 341(c) from:

....

(6) New trials. An order in a civil action or proceeding 

awarding a new trial, or 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 lower 

court committed an error of law.
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Pa.R.A.P. 311(a)(6). However, Edwards does not appeal the order granting a 

new trial, but rather an order denying his pretrial motion to dismiss a new trial 

on double jeopardy grounds. As no other section applies to the instant 

situation, Rule 311 is inapplicable here, and as a result, we cannot exercise 

jurisdiction on that basis.

Nevertheless, we may be able to exercise jurisdiction over this appeal 

to the extent the order denying Edward’s pretrial motion to dismiss qualifies 

as a collateral order under Pa.R.A.P. 313, which provides in part:

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.

Pa.R.A.P. 313(b). 

Our Supreme Court has specifically held that orders denying a 

defendant's motion to dismiss on double jeopardy grounds are appealable as 

collateral orders, so long as the motion is not found to be frivolous. See 

Commonwealth v. Orie, 22 A.3d 1021, 1024 (Pa. 2011); see also 

Commonwealth v. Brady, 508 A.2d 286, 291 (Pa. 1986); see also Rule 

313, Comment (specifically citing an order denying a pretrial motion to dismiss 

on double jeopardy grounds as an example of a collateral order). 

Further, in a recently filed en banc opinion, this Court reaffirmed the 

proposition that an order denying a double jeopardy motion, which makes no 

finding that the motion is frivolous, is a collateral order under Rule 313 and 
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immediately appealable. See Commonwealth v. Gross, ___ A.3d.___, 375 

EDA 2016 (Pa. Super. 2020) at *9. Thus, this appeal is properly before us for 

review.1

On appeal, Edwards contends a new trial is barred on double jeopardy 

grounds.

An appeal grounded in double jeopardy raises a question of 

constitutional law. This court's scope of review in making a 

determination on a question of law is, as always, plenary. As with 

all questions of law, the appellate standard of review is de novo[.] 

To the extent that the factual findings of the trial court impact its 

double jeopardy ruling, we apply a more deferential standard of 

review to those findings:

Where issues of credibility and weight of the evidence are 

concerned, it is not the function of the appellate court to substitute 

its judgment based on a cold record for that of the trial court. The 

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1 After the decision in Orie, Pa.R.Crim.P. 587 was amended, effective July 4, 

2013, to govern the procedure for addressing a double jeopardy motion to 

dismiss. It is clear from a review of the record that the trial court failed to 

comply with the terms of Rule 587 in denying Edwards’ motion to dismiss on 

the basis of double jeopardy. The trial court erred in failing to enter a 

statement of findings of fact and conclusions of law on the record, in failing to 

enter a specific finding on the record as to frivolousness and in failing to advise 

Edwards of his appellate rights. See Pa.R.Crim.P. 587(B)(3)-(6). However, 

this Court has recently concluded that Rule 587 only governs the trial court’s 

procedure, and does not govern or control appellate jurisdiction. See Gross, 

at *32, n.1.

Accordingly, Edwards could have appealed on the basis that the trial court 

failed to follow the dictates of Rule 587. However, Edwards did not raise this 

issue on appeal and this procedural rule violation is not an issue which we 

may raise sua sponte. See Commonwealth v. Colavita, 993 A.2d 874, 891 

(Pa. 2010) (holding that, generally, “[w]here the parties fail to preserve an 

issue for appeal, the Superior Court may not address that issue sua sponte”) 

(quotations and citations omitted); see also In re Estate of Tscherneff, 

203 A.3d 1020, 1027 (Pa. Super. 2019) (noting that there are only “a few 

discrete, limited non-jurisdictional issues that courts may raise sua sponte”).
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weight to be accorded conflicting evidence is exclusively for the 

fact finder, whose findings will not be disturbed on appeal if they 

are supported by the record.

Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015) (citation 

omitted).

The Double Jeopardy Clauses of the Fifth Amendment to the United 

States Constitution and Article 1, § 10 of the Pennsylvania Constitution 

prohibit retrial where prosecutorial misconduct during trial provokes a criminal 

defendant into moving for a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 

679 (1982); see also Commonwealth v. Simons, 522 A.2d 537, 540 (Pa. 

1987). However, Article 1, § 10 of the Pennsylvania Constitution offers 

broader protection than its federal counterpart in that 

the double jeopardy clause of the Pennsylvania Constitution 

prohibits retrial of a defendant not only when prosecutorial 

misconduct is intended to provoke the defendant into moving for 

a mistrial, but also when the conduct of the prosecutor is 

intentionally undertaken to prejudice the defendant to the point 

of the denial of a fair trial. 

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). Our Supreme 

Court has recently held that in addition to the behavior described in Smith, 

prosecutorial overreaching2 sufficient to invoke double jeopardy protections 

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2 Prior to Kennedy, the limiting principle was expressed in terms of 

prosecutorial overreaching – that is, misconduct intended to provoke a 

defense motion for a mistrial or actions otherwise taken in bad faith to harass 

or unfairly prejudice the defendant. See Lee v. United States, 432 U.S. 23, 

34 (1977); see also Commonwealth v. Starks, 416 A.2d 498, 500 (Pa. 

1980).
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under Article 1, § 10 of the Pennsylvania Constitution includes reckless 

misconduct which deprives the defendant of a fair trial. See Commonwealth 

v. Johnson, ___ A.3d.___, 40 EAP 2018 (Pa., filed May 19, 2020) (“Johnson 

(Pa.)”). Therefore, the type of misconduct which qualifies as overreaching 

under our state constitution encompasses governmental errors that occur 

absent a specific intent to deny a defendant his constitutional rights. See id. 

Edwards argues a retrial is barred on double jeopardy grounds because 

the Commonwealth’s Batson violation served no other purpose than to 

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In Kennedy, the United States Supreme Court disapproved further use of the 

“overreaching” test, and instead held the Fifth Amendment immunizes the 

defendant from retrial only where the government’s actions were “intended to 

‘goad’ the defendant into moving for a mistrial.” Id. at 675-676. In Simons, 

the Pennsylvania Supreme Court adopted the Kennedy rule, and found 

double jeopardy only attached to those mistrials which had been intentionally 

caused by prosecutorial misconduct. Simons, 522 A.2d at 540.

Subsequently, in Smith, our Supreme Court construed Pennsylvania’s doublejeopardy provision as supplying broader protections than its federal 

counterpart, and returned to the pre-Kennedy “overreaching” test. Smith

was grounded on the distinction between mere error and overreaching, as set 

forth in Starks. See Smith, 615 A.2d at 324. Starks conveyed that, whereas 

prosecutorial errors are an “inevitable part of the trial process,” prosecutorial 

overreaching is not. Starks, 416 A.2d at 500. 

Our Supreme Court has concluded that although it departed from the Fifth 

Amendment in the wake of the Kennedy decision, it never disavowed the 

“overreaching” prerequisite, which is firmly entrenched in case precedent both 

pre- and post-Kennedy. See Commonwealth v. Johnson, ___ A.3d ___, 

40 EAP 2018, (Pa., filed May 19, 2020). 
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deprive him of a fair trial and subvert the truth determining process. See 

Appellant’s Brief, at 7. Edwards acknowledges that we are bound by our 

precedent in Commonwealth v. Basemore, 875 A.2d 350 (Pa. Super. 

2005), in which we held that a Batson violation does not per se bar retrial on 

double jeopardy grounds, but requests that we revisit the dissent in 

Basemore in order to reconsider our previous holding. 

We note that the Supreme Court of Pennsylvania has held that a 

prosecutor’s reckless disregard of the constitutional rights of the defendant 

can raise double jeopardy concerns under the Pennsylvania Constitution. See 

Johnson (Pa.). Therefore, at least some of the reasoning employed in 

Basemore is no longer valid. See Basemore, 875 A.2d at 356.

However, the Pennsylvania Supreme Court has not addressed the 

overarching holding from Basemore, that “nowhere in the approximately 

twenty years of Batson jurisprudence has there been any suggestion that a 

Batson violation so subverts the truth seeking process as to implicate double 

jeopardy concerns.” Basemore, 875 A.2d at 357. As this reasoning remains 

valid we are bound by it. We conclude that Edwards is not entitled to relief in 

this case. 

Order affirmed. Jurisdiction relinquished.

Judge Olson joins the memorandum.

Judge Nichols concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/29/2020