J-E04004-17
2020 PA Super 107
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EMILY JOY GROSS :
:
Appellant : No. 375 EDA 2016
Appeal from the Order January 15, 2016
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000045-2010
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.
CONCURRING OPINION BY OLSON, J.: FILED APRIL 29, 2020
I join the learned majority’s opinion in full. However, I write separately
to address some concerns that the learned dissents have ably expressed.
The learned dissents view compliance with Pennsylvania Rule of Criminal
Procedure 587 as a prerequisite for appellate jurisdiction. According to the
dissenters, Rule 587 implicates our jurisdiction because the trial court’s denial
of a defendant’s pre-trial double jeopardy motion only qualifies as a collateral
order where “a trial court [makes a] factual finding[] that [the] double
jeopardy motion is not frivolous.” Judge Stabile’s Dissenting Opinion at *6
(emphasis added); see also Judge Dubow’s Dissenting Opinion at *6 (“[i]f
the trial court finds the [defendant’s double jeopardy] motion to have merit,
a defendant may appeal pursuant to Pa.R.A.P. 313”). From this starting point,
the dissenters posit that, since our jurisdiction is not perfected until the trial
court determines that the double jeopardy motion is “not frivolous,” and since
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Rule 587 provides the mechanism by which the trial court determines whether
the motion is or is not frivolous, compliance with Pennsylvania Rule of Criminal
Procedure 587 is a precondition for appellate jurisdiction.
However, and respectfully, I believe that the dissenters’ starting point
is erroneous, as it is contrary to our Supreme Court’s holdings, and that this
faulty starting point corrupts their entire analysis.
In Commonwealth v. Orie, the Pennsylvania Supreme Court examined
the historical derivation and the current status of a defendant’s right to appeal
the denial of his or her pre-trial motion to dismiss on double jeopardy grounds.
As the Orie Court explained:
Generally, criminal defendants have a right to appeal a trial
court's pre-trial double jeopardy determination under
Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977)
(plurality opinion). While Bolden was a plurality decision, a
per curiam decision by the [Pennsylvania Supreme] Court
shortly thereafter made clear that a [Supreme] Court
majority agreed with the important narrow proposition that
“pretrial orders denying double jeopardy claims are final
orders for purposes of appeal.” Commonwealth v.
Haefner, 373 A.2d 1094, 1095 (Pa. 1977) (per curiam)
(emphasis added).
Eight years later, in [Commonwealth v. Brady, 508 A.2d
286 (Pa. 1986), the Pennsylvania Supreme] Court considered
the question of whether a Bolden of-right appeal should be
permitted to go forward when the trial court has concluded
that the double jeopardy motion is frivolous. The Brady
Court held that where the trial court makes a written
statement finding that the pre-trial double jeopardy challenge
is frivolous, a Bolden-style interlocutory appeal will not be
permitted because it would only serve to delay prosecution.
In reaching this conclusion, the Brady Court noted that
precluding Bolden appeals and automatic stays of retrial
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upon a written finding that the claim is frivolous still affords
the defendant “the opportunity to initially assert his claim
before a tribunal and retrial is not permitted unless the claim
is shown to the satisfaction of that court to be frivolous.” …
[T]he Brady Court [also] envisioned a preliminary avenue for
limited appellate review of the trial court's written finding that
a defendant's double jeopardy challenge was frivolous via a
stand-alone stay procedure, which would be unrelated to a
pending appeal as of right.
Commonwealth v. Orie, 22 A.3d 1021, 1024-1025 (Pa. 2011).
Thus, as the Orie Court explained, an order denying a pre-trial motion
to dismiss on double jeopardy grounds is, as a general matter, immediately
appealable. An exception to this general rule of appealability exists if, but
only if, the trial court “makes a written statement finding that the pre-trial
double jeopardy challenge is frivolous.” Id.; see also Brady, 508 A.2d at
291 (“an appeal from the denial of a motion to dismiss on double jeopardy
grounds should not be permitted where the hearing court has considered the
motion and made written findings that the motion is frivolous. Absent such a
finding, an appeal may be taken from the denial of the motion”).
Indeed, the Pennsylvania Supreme Court recently adopted and
published an amendment to the official note to Pennsylvania Rule of Appellate
Procedure 313, governing collateral orders, which will become effective
August 1, 2020. The amended official note reads:
Pennsylvania appellate courts have found a number of
classes of orders to fit the collateral order definition. . . .
Examples include . . . an order denying a pre-trial motion
to dismiss on double jeopardy grounds if the trial court
does not also make a finding that the motion to dismiss
is frivolous. See Commonwealth v. Brady, 508 A.2d 286,
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289–91 (Pa. 1986) (allowing an immediate appeal from
denial of double jeopardy claim under collateral order
doctrine where trial court does not make a finding of
frivolousness); Commonwealth v. Orie, 22 A.3d 1021 (Pa.
2011). An order denying a pre-trial motion to dismiss
on double jeopardy grounds that also finds that the
motion to dismiss is frivolous is not appealable as of
right as a collateral order, but may be appealable by
permission under Pa.R.A.P. 1311(a)(3).
Pa.R.A.P. 313 note (effective August 1, 2020) (emphasis added).
The amended note clarifies that an order denying a pre-trial motion to
dismiss on double jeopardy grounds is immediately appealable as a collateral
order unless the trial court makes a written finding that the motion to dismiss
is frivolous. See id.
Finally, the note to Pennsylvania Rule of Appellate Procedure 1573,
which is effective until August 1, 2020, repeats this principle of law, by stating:
“[i]f a trial court denies [a motion to dismiss on double jeopardy grounds]
without expressly finding that the motion is frivolous, the order is
immediately appealable by means of a notice of appeal under Pa.R.A.P.
313.” Pa.R.A.P. 1573 note (emphasis added).
Therefore, I believe that the dissenters are incorrect in concluding that
the denial of a double jeopardy motion is not appealable under Rule 313 unless
the “trial court [makes a] factual finding[] that [the] double jeopardy motion
is not frivolous.” Rather, under our Supreme Court’s decisions in Bolden,
Haefner, Brady, and Orie and, under Pennsylvania Rule of Appellate
Procedure 313, the trial court’s denial of a pre-trial double jeopardy motion is
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immediately appealable as a collateral order unless the trial court determines
that the motion is frivolous.
When starting with the correct viewpoint – the viewpoint required by
our Supreme Court’s precedent, the amended note to Rule 313, and the note
to Rule 1573 – it is apparent that compliance with Pennsylvania Rule of
Criminal Procedure 587 is not a precondition to our jurisdiction, as our
jurisdiction is perfected upon appeal – unless the trial court makes a written
finding that the motion is frivolous.
Contrary to Judge Stabile’s statement, this jurisdictional issue does not
make compliance with Rule 587 “optional” with the trial court. See Judge
Stabile’s Dissenting Opinion at *6. To be sure, Rule 587 delineates the
mandatory procedure by which the trial court must hear and decide a double
jeopardy motion. If a trial court violates Rule 587, the parties are free to raise
this issue on appeal. It is my belief that the trial court violated Rule 587 in
this case.1 However, the parties in this case did not assert any claim that the
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1 In my view, the trial court failed to comply with the terms of Rule 587 in
denying Appellant’s motion to dismiss on the basis of double jeopardy. Rule
587 states in relevant part:
(B) Double Jeopardy
(1) A motion to dismiss on double jeopardy grounds shall
state specifically and with particularity the basis for the
claim of double jeopardy and the facts that support the
claim.
(2) A hearing on the motion shall be scheduled in
accordance with Rule 577 (Procedures Following Filing of
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Motion). The hearing shall be conducted on the record
in open court.
(3) At the conclusion of the hearing, the judge shall
enter on the record a statement of findings of fact and
conclusions of law and shall issue an order granting or
denying the motion.
(4) In a case in which the judge denies the motion, the
findings of fact shall include a specific finding as to
frivolousness.
(5) If the judge makes a finding that the motion is
frivolous, the judge shall advise the defendant on the
record that the defendant has a right to file a petition for
review of that determination pursuant to Rule of Appellate
Procedure 1573 within 30 days of the order denying the
motion.
(6) If the judge denies the motion but does not find it
frivolous, the judge shall advise the defendant on the
record that the denial is immediately appealable as a
collateral order.
Pa.R.Crim.P. 587(B)(1)-(6) (emphasis added). Pursuant to this rule, a
hearing on the record is mandatory when a defendant files a motion to dismiss
on the basis of double jeopardy. At the conclusion of the hearing, the trial
court is required to make a specific finding on the record as to whether the
motion is granted or denied. If it is denied, the trial court must make an
express finding on the record as to whether the motion is frivolous. The trial
court’s determination of whether the motion is frivolous is mandatory as the
trial court must then advise the defendant on the record as to his or her
appellate rights. If the motion is deemed to be frivolous, the trial court shall
advise the defendant that he or she may file a petition for review. If the
motion is not deemed to be frivolous, the trial court shall advise the defendant
that the order is deemed to be a collateral order and he or she may seek an
immediate appeal.
It is my view that, in this case, the trial court erred in not holding a hearing
on the record, in failing to make the express findings on the record as to
frivolousness and in failing to advise Appellant of her appellate rights.
Accordingly, I believe that Appellant could have appealed on the basis that
the trial court failed to follow the dictates of Rule 587. However, Appellant
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trial court violated Rule 587 and the existence of a procedural mistake by the
trial court cannot, in and of itself, divest this Court of subject matter
jurisdiction where our jurisdiction is otherwise properly established. C.f.
Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007) (“[t]he existence
of a procedural mistake in and of itself . . . does not divest the trial court of
subject matter jurisdiction”).
Pennsylvania Rule of Appellate Procedure 313 and our Supreme Court’s
precedent define the appealability of the order in this case – and, as the
majority correctly holds, the order is appealable because the trial court denied
Appellant’s pre-trial motion to dismiss on double jeopardy grounds and the
trial court did not make a written finding that the motion was frivolous. Orie,
22 A.3d at 1024-1025; Pa.R.A.P. 313; see also Bolden,
373 A.2d at 105
(plurality); Haefner,
373 A.2d at 1095 (per curiam); Brady,
508 A.2d at 291.
Pennsylvania Rule of Criminal Procedure 587 is inapplicable to the issue of
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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”).
Although the trial court failed to follow Rule 587, such failure does not deprive
this Court of jurisdiction. Instead, jurisdiction is conferred upon this Court as
the order entered was a collateral order pursuant to Pennsylvania Rule of
Appellate Procedure 313 and our Supreme Court’s holdings in Bolden,
Haefner, Brady, and Orie.
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whether this Court has jurisdiction in the case at bar and should not serve as
the touchstone for any jurisdictional analysis here.
President Judge Emeritus Bender and Judge Bowes join the concurring
opinion.
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