J-S36006-20
2020 PA Super 223
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES PATRICK KEMICK :
:
Appellant : No. 350 WDA 2020
Appeal from the Order Dated February 7, 2020
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000390-2019
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
OPINION BY OLSON, J.: FILED SEPTEMBER 15, 2020
Appellant, James Patrick Kemick, appeals from the February 7, 2020
order denying his motion to dismiss the criminal charges1 currently pending
against him on grounds that the prosecution of those charges violates the
protection against double jeopardy and the compulsory joinder rule.2 We
vacate the order and remand this case with instructions.
The trial court summarized the factual history as follows:
At McKean County [docket number] 375 CR 2017, [Appellant] was
charged with burglary, criminal attempt to commit burglary,
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant was charged with one count each of burglary of a home - no person
present, theft by unlawful taking of movable property, receiving stolen
property, and criminal trespass. 18 Pa.C.S.A. §§ 3502(a)(2), 3921(a),
3925(a), and 3503(a)(1)(ii), respectively.
2 The compulsory joinder rule is codified at 18 Pa.C.S.A. § 110 and is set forth
in detail, infra.
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criminal trespass, theft by unlawful taking, [and] loitering and
prowling at night. It was alleged at that [docket] number that on
July 26, 2017, [Appellant] entered a business, the Thrifty
Cleaners, and stole a cash register. At McKean County [docket
number] 453 CR 2017[, Appellant pleaded] guilty to [one] count
of criminal conspiracy/theft by unlawful taking. The facts [in] that
case [were] that [Appellant] and his co-defendant [] stole two
bicycles from [the victim]. This conspiracy occurred in the City of
Bradford[, Pennsylvania,] on September 2, 2017. At McKean
County [docket number] 470 CR 2017[, Appellant pleaded] guilty
to [loitering] and prowling at night for prowling around the
residence [] at 52 Bedford Street[,] Bradford[, Pennsylvania]. The
actions that led to this conviction occurred on August 28, 2017.
At McKean County [docket number] 493 CR 2017[, Appellant
pleaded] guilty to [loitering] and prowling at night. The facts [in
that case] were that [Appellant], on September 6, 2017, loitered
and prowled at a residence at 952 South Avenue, Bradford,
[Pennsylvania].
ln the current case[,] it is asserted that [Appellant], between
August 18, 2017, and August 28, 2017, committed the offenses
of burglary - home, no person present, theft by unlawful
taking[ - movable property], receiving stolen property[,] and
criminal trespass. lt is asserted that he entered the home [] at
955 South Avenue, Bradford, [Pennsylvania].
Trial Court Opinion, 3/27/20, at 2-3 (extraneous capitalization and emphasis
omitted).
On October 30, 2019, Appellant filed a motion to dismiss the criminal
charges pending against him in the instant case “due to prohibitions against
double jeopardy under State and Federal Constitutions and the compulsory
joinder rule, and that prosecution of these charges is barred by a former
prosecution[.]” Appellant’s Motion to Dismiss Charges/Criminal Information,
10/30/19, at ¶2. Appellant requested a hearing on the motion to dismiss.
The Commonwealth filed an answer to Appellant’s motion, opposing the
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dismissal of the criminal charges. On January 7, 2020, the trial court
convened a proceeding on Appellant’s motion to dismiss. At the conclusion of
the proceeding, the trial court permitted Appellant and the Commonwealth to
submit briefs on the matter, which both parties timely submitted. On February
7, 2020, the trial court denied Appellant’s motion to dismiss the criminal
charges. This appeal followed.3
Appellant raises the following issues for our review:
[1.] Whether the trial court erred in failing to enter on the record
a statement of findings of fact and conclusions of law, as
required under Pa.R.Crim.P. [] 587(B)(3), in disposing of
[Appellant’s] motion to dismiss charges/criminal
information pursuant to prohibitions against double
jeopardy and under 18 Pa.C.S.[A.] § 110[?]
[2.] Whether the trial court erred by denying [Appellant] the
opportunity to present testimony and evidence at a hearing
pursuant to Pa.R.Crim.P. [] 587(B)(2) in support of his
motion to dismiss charges/criminal information pursuant to
prohibitions against double jeopardy and under 18
Pa.C.S.[A.] § 110[?]
[3.] Whether the trial court erred in denying a motion to dismiss
charges/criminal information pursuant to prohibitions
against double jeopardy and under 18 Pa.C.S.[A.] § 110.[?]
Appellant’s Brief at 4-5 (extraneous capitalization omitted).
Preliminarily, we must determine whether Appellant’s appeal is from a
final, appealable order, thereby invoking the jurisdiction of this Court.4
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3 Appellant and the trial court complied with Pa.R.A.P. 1925.
4 In a March 23, 2020 per curiam order, this Court ordered Appellant to show
cause why this appeal should not be quashed as a premature appeal from an
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Appellant contends that the trial court’s February 7, 2020 order denying his
motion to dismiss the criminal charges is a collateral order and, therefore, is
immediately appealable. Appellant’s Answer to Show Cause Order, 4/27/20,
at 3.
“An appeal may be taken as of right from a collateral order of a trial
court[.]” Pa.R.A.P. 313(a). Pennsylvania Rule of Appellate Procedure 313(b)
defines a collateral order as “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.” Id. at 313(b).
“Pennsylvania law [] traditionally provided a criminal defendant the right
to an immediate appeal from an order denying a pretrial motion to dismiss on
double jeopardy grounds.” Commonwealth v. Gross, ___ A.3d ___, 2020
WL 2065574, at *10 (Pa. Super. 2020) (en banc), citing Commonwealth v.
Orie,
22 A.3d 1021, 1024 (Pa. 2011); see also Commonwealth v. Haefner,
373 A.2d 1094, 1095 (Pa. 1977) (stating that “pretrial orders denying double
jeopardy claims are final orders for purposes of appeal”). If the trial court
enters an order denying the motion to dismiss on double jeopardy grounds
and in doing so, makes no finding, in writing, that the motion is frivolous, then
the order is a collateral order under Rule 313 and is immediately appealable.
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interlocutory order. Appellant filed a response. On May 5, 2020, in a per
curiam order, this Court discharged the rule to show cause order, advising the
parties that the issue may be raised by the merits panel.
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Gross, 2020 WL 2065574, at *12; see also Commonwealth v. Anthony,
717 A.2d 1015, 1017 (Pa. 1998) (stating, “[t]he denial of a pretrial [m]otion
to [d]ismiss an indictment on double jeopardy grounds is subject to appellate
review unless it appears that the claim is frivolous). “A [m]otion to [d]ismiss
on the basis of the compulsory joinder rule[, codified at 18 Pa.C.S.A. § 110,]
embodies the same constitutional protections underlying the double jeopardy
clause” and, therefore, an order denying such a motion to dismiss is also
immediately appealable as a collateral order, provided the claim is not
frivolous. Anthony,
717 A.2d at 1017.
The compulsory joinder rule states,
§ 110. When prosecution barred by former prosecution for
different offense
Although a prosecution is for a violation of a different provision of
the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title (relating to
when prosecution barred by former prosecution for the
same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been
convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from
the same criminal episode, if such offense was known to the
appropriate prosecuting officer at the time of the
commencement of the first trial and occurred within the
same judicial district as the former prosecution unless the
court ordered a separate trial of the charge of such offense;
or
(iii) the same conduct, unless:
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(A) the offense of which the defendant was formerly
convicted or acquitted and the offense for which he is
subsequently prosecuted each requires proof of a fact not
required by the other and the law defining each of such
offenses is intended to prevent a substantially different
harm or evil; or
(B) the second offense was not consummated when the
former trial began.
(2) The former prosecution was terminated, after the
indictment was found, by an acquittal or by a final order or
judgment for the defendant which has not been set aside,
reversed or vacated and which acquittal, final order or
judgment necessarily required a determination inconsistent
with a fact which must be established for conviction of the
second offense.
(3) The former prosecution was improperly terminated, as
improper termination is defined in section 109 of this title
(relating to when prosecution barred by former prosecution
for the same offense) and the subsequent prosecution is for
an offense of which the defendant could have been
convicted had the former prosecution not been improperly
terminated.
18 Pa.C.S.A. § 110.
Here, Appellant appeals the trial court order denying his motion to
dismiss the criminal charges pending against him on grounds that the
prosecution of those charges violates the protection against double jeopardy
and the compulsory joinder rule. Appellant’s Brief at 15-16. A review of the
record demonstrates that the trial court, in denying Appellant’s motion to
dismiss, did not make a finding on the record that Appellant’s claim was
frivolous. See Trial Court Order, 2/7/20; see also N.T., 1/7/20, at 1-13; Trial
Court Opinion, 3/27/20, at 1-13. Therefore, the trial court’s order denying
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Appellant’s motion to dismiss is a collateral order and immediately appealable.
We now consider the merits of Appellant’s issues.
We consider Appellant’s first and second issues in tandem as we find
them dispositive of this matter. Appellant’s first issue asserts that the trial
court “erred in failing to enter on the record a statement of findings of fact
and conclusions of law in disposing of Appellant’s” motion to dismiss the
criminal charges as required by Rule 587(B)(3). Appellant’s Brief at 16-18.
In his second issue, Appellant asserts that the trial court “erred by denying
[Appellant] the opportunity to present testimony and evidence at a hearing,
pursuant to [] Rule 587(B)(2), in support of his” motion to dismiss the criminal
charges. Id. at 18-21.
The interpretation of and the application of the Pennsylvania Rules of
Criminal Procedure present questions of law for which our standard of review
is de novo and our scope of review plenary. Commonwealth v. Phillips,
141 A.3d 512, 518 (Pa. Super. 2016), appeal denied,
161 A.3d 796 (Pa.
2016). Pennsylvania Rule of Criminal Procedure 587(B) states,
Rule 587. Motion for Dismissal
...
(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 Motion). The hearing
shall be conducted on the record in open court.
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(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 a 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). The term “‘[h]earing,’ as used in paragraph (B)(2)
includes the taking of testimony, or the hearing of argument, or both.” Id. at
Official Comments.
Here, the record demonstrates that, on January 7, 2020, the trial court
brought the parties together to address Appellant’s motion to dismiss the
criminal charges. During the proceeding, the trial court did not admit
testimony or hear argument in support of, or in opposition to, the claim that
prosecution of Appellant’s pending criminal charges violates the double
jeopardy clause or the compulsory joinder rule. N.T., 1/7/20, at 1-20. Rather,
the trial court listened to presentations by counsel on whether an evidentiary
hearing on Appellant’s motion to dismiss was necessary. Id. at 3-4. At the
conclusion of the proceeding, the trial court ordered the parties to file briefs
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addressing the merits of the issue.5 Id. at 9. The trial court stated, “[i]f
something comes up in the [b]riefs that demonstrates [] that further evidence
is needed, then [the trial court] would reconsider [the request for a hearing]
and limit the hearing to calling certain witnesses; but [the trial court does not]
believe that will happen legally.” Id. at 10. At the conclusion of the
proceeding, the trial court did not enter any findings of fact or conclusions of
law on the record. Id. at 13. The trial court did not convene a subsequent
hearing for the purpose of taking testimony or hearing argument on
Appellant’s motion to dismiss or in order that the trial court could enter its
findings of fact and conclusions of law on the record before denying Appellant’s
motion to dismiss. Moreover, the February 7, 2020 order denying Appellant’s
motion to dismiss the criminal charges failed to set forth, on the record, any
findings of fact or conclusions of law. In its Rule 1925(a) opinion, the trial
court stated,
It was clear that [Appellant] had, in fact, been prosecuted and
convicted of previous offenses similar in nature and in the same
general time period asserted in the current case. The [trial] court
concluded that the facts were not in dispute. Specifically, the
[trial] court concluded that [Appellant’s] assertion that he had
been involved in a string of burglaries and thefts over about a
two-month time period in [the City of] Bradford[, Pennsylvania]
and [in] Bradford Township, Pennsylvania, including the activity
asserted in this case, was accurate. Since these facts were not in
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5 Appellant was prepared to present the testimony of several witnesses at the
proceeding, including the testimony of six investigating police officers and
three civilians. Appellant offered the witnesses in support of his motion to
dismiss, as their proposed testimony related to the prior cases and current
case. N.T., 1/7/20, at 6.
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dispute the [trial] court concluded that the parties should file legal
briefs addressing whether these undisputed facts supported a
double jeopardy claim.
Trial Court Opinion, 3/27/20, at 2.
Based upon our review of the limited record and the applicable rules of
criminal procedure, we find the trial court erred in its failure to follow the
requirements of Rule 587(B). Although the trial court had discretion, vis-à-vis
Rules 587(B)(2) and 577,6 in determining whether a hearing on Appellant’s
motion to dismiss was necessary, Rule 587(B) clearly required the trial court
to develop a record, by some means, in order that it could make findings of
fact, reach conclusions of law, and issue an order either granting or denying
the motion to dismiss. See Pa.R.Crim.P. 587(B)(2) and (3). A record can be
developed by conducting a hearing, as defined by the official comments to
Rule 587, or by other means, such as, conducting a proceeding for the purpose
of admitting evidence or taking judicial notice of other proceedings and
documents to generate a factual record pertinent to claims asserting double
jeopardy and compulsory joinder.
In the instant case, the trial court did not conduct a hearing, as defined
by the official comments to Rule 587, that provided Appellant and the
Commonwealth the opportunity to present testimony in support of, or to
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6 Pennsylvania Rule of Criminal Procedure 577(A)(2) provides that following
the filing of a motion, if the trial court determines that the motion requires a
hearing or argument, a hearing on the matter shall be scheduled.
Pa.R.Crim.P. 577(A)(2).
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refute, the claim that the Appellant’s prosecution for the aforementioned
criminal charges violates double jeopardy protections or the compulsory
joinder rule. Moreover, the trial court did not conduct a hearing to develop a
record by means of admitting evidence, i.e. other case records, or taking
judicial notice of the other proceedings and documents.
The trial court, having failed to develop a record, further failed to
memorialize its findings of fact and conclusions of law on the record, as well
as make a specific finding, upon denial of Appellant’s motion to dismiss, as to
the frivolousness of the motion to dismiss and provide the requisite notice for
appellate review. See Pa.R.Crim.P. 587(B)(3) (stating, “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”); see also Pa.R.Crim.P. 587(B)(4) (stating, “In a case in which the
judge denies the motion, the findings of fact shall include a specific finding as
to frivolousness”). Consequently, we are constrained to vacate the
February 7, 2020 order and remand this matter to the trial court for the
purpose of conducting a hearing in accordance with Rule 587 and as
contemplated by this decision. The hearing shall be held within 90 days of
this decision.7 At the conclusion of the hearing, the trial court shall state on
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7 In the event that the trial court is closed at any point during the 90-day
period due to the COVID-19 pandemic, the 90-day period shall be extended
for an amount of time equal to any such closure.
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the record its findings of fact and conclusions of law. Thereafter, the trial
court shall enter an order disposing of Appellant’s motion to dismiss the
pending criminal charges, including a declaration as to whether Appellant’s
motion to dismiss is frivolous, if the trial court denies the motion.8 If the trial
court denies the motion, the trial court shall also advise Appellant in
accordance with either Rule 587(B)(5) or (6), based upon the trial court’s
determination of frivolousness, of Appellant’s right of review or to an
immediate appeal.
Order vacated. Case remanded with instructions. 9 Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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8 Absent the trial court’s compliance with Rule 587, we are unable to address
Appellant’s remaining issue.
9 The prothonotary of this Court shall return the certified record to the trial
court upon the filing of this decision.
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