[J

- 57A

- 2017, J

- 57B

- 2017 and J

- 57C

- 2017] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

JAWAYNE K. BROWN,

Appellee :

:

:

:

:

:

:

:

:

:

:

: No. 10 EAP 2017

Appeal from the Judgment of Superior Court entered on June 6, 2016 at 3014 EDA 2014 (reargument denied August 2, 2016) affirming the October 9, 2014 Order of the Court of Common Pleas, Philadelphia County, Criminal Divi sion at Nos. CP

- 51

- CR

- 0102174

- 2005 and CP

- 51

- CR

- 0609071

- 2006.

ARGUED: September 12, 2017

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

RICHARD BROWN,

Appellee :

:

:

:

:

:

:

:

:

:

: No. 11 EAP 2017

Appeal from the Judgment of Superior Court entered on June 6, 2016 at 3046 EDA 2014 (reargument denied August 2, 2016) affirming the October 9, 2014 Order of the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP

- 51

- CR

- 0102173

- 2005.

ARGUED: September 12, 2017

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

AQUIL BOND,

Appellee :

:

:

:

:

:

:

:

:

:

: No. 12 EAP 2017

Appeal from the Judgment of Superior Court entered on June 6, 2016 at 3054 EDA 2014 (reargument denied August 2, 2016) affirming the October 9, 2014 Order of the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP

- 51

- CR

- 0102171

- 2005.

ARGUED: September 12, 2017

CONCURRING STATEMENT

JUSTICE DOUGHERTY DECIDED: February 21, 2018[ J

- 57A

- 2017 ; J

- 57B

- 2017; J

- 57C

- 2017 ]

- 2

I agree with the decision to dismiss the Commonwealth’s appeal as improvidently

granted. As today’s order leaves standing the Superior Court’s ruling which dismiss ed

serious homicide and related charges , I find it prudent to explain my reasons for joining

the per curiam order

.

T he Commonwealth presented the following two issues in its petition for

allowance of appeal to this Court:

1. Should a [ Commonwealth v. Smith , 615 A.2d 321 (Pa. 1992) ] claim [ 1 ] require a factual finding, by the original trial judge or based on further testimony, that the prosecutor not only engaged in egregious misconduct but did so with the intent to deny a fair trial?

2. Did the Superior Court err in overruling the trial judge and holding that the prosecutor’s actions were misconduct requiring a new trial?

We denied review of the Commonwealth’s second question but granted review of the

first question, revising it as follows:

Should a claim barring retrial on the basis of double jeopardy pursuant to [ Smith ], require factual findings made by the original trial judge, or a hearing based on further testimony, regarding the intent of the prosecutor?

Commonwealth v. Brown

, 167 A.3d 703 (Pa. 2017). The Commonwealth’s

subsequently filed brief contains four sub

- issues, two of which were not implicated in the

question accepted for review

. 2

The Commonwealth’s remaining two sub

- issues were explicitly implicated in the

question accepted for review, but the issues were not preserved in the lower courts and

1 The Smith Court held double jeopardy protections prohibit a retrial when pr osecutorial misconduct was intended to provoke a mistrial motion or deny the defendant a fair trial

. 615 A.2d at 325.

2 The following arguments advanced by the Commonwealth were not implicated in the question accepted for review and are not properly before this Court : (1) Smith require s egregious prosecutorial misconduct; and (2) Judge Lerner improperly relied on the findings of the Superior Court.[ J

- 57A

- 2017 ; J

- 57B

- 2017; J

- 57C

- 2017 ]

- 3

are therefore waived. Specifically, the Commonwealth waived the issue of whether

Judge Lerner should have transferred the motions to dismiss to Jud g e Woods

- Skipper

by failing to object to Judge Lerner ’ s ruling on the motions and failing to request the

motions be reassigned to Jud g e Woods

- Skipper

. See Pa.R.A.P. 302 (a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time on appeal

. ”) ;

Commonwealth v. Smith , 131 A.3d 467, 474 (Pa. 2015) (failure to object in lower court

results in waiver)

. In response to Judge Lerner’s hearing the motions, the prosecutor

simply observed, “sometimes these cases are then transferred back to the original trial

judge, who is still here on the bench. We leave that up to this [c]ourt.” N.T. 8/13/2014

at 10. In my view, this passing comment cannot be construed as an objection.

T he Commonwealth ’s contention on appeal that an evidentiary hearing is

necessary for motions to dismiss based on a Smith claim was also waived as the

Commonwealth failed to raise it in Superior Court. See Pa.R.A.P. 302(a) ;

Commonwealth v. Shabezz , 166 A.3d 278, 288 n.6 (Pa. 2017) (claims not raised before

the Superior Court are waived before this Court) . On appeal to the Superior Court, the

Commonwealth argued only as follows : (1) egregious prosecutorial misconduct is a

requirement under Smith ; (2) Judge Lerner erroneously concluded he was bound by the

findings of the Superior Court; (3) Judge Lerner er red by failing to transfer the motions

to dismiss to Judge Woods

- Skipper; and (4) the Superior Court should reconsider its

previous finding the trial pr osecutor committed misconduct. Accordingly, although this

appeal appeared to present significant questi ons, I am compelled to concur in the

decision to dismiss it as improvidently granted.