J-A20007-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
CHRISTOPHER ROBINSON,                     :
                                          :
                   Appellant              : No. 3369 EDA 2014

         Appeal from the Double Jeopardy Order November 24, 2014,
                   Court of Common Pleas, Monroe County,
              Criminal Division at No. CP-45-CR-0002139-2013

BEFORE: DONOHUE, SHOGAN and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED AUGUST 07, 2015

       Appellant, Christopher Robinson (“Robinson”), appeals from the order

entered on November 24, 2014 by the Court of Common Pleas of Monroe

County denying his motion to dismiss his charge of possession of a

controlled substance with intent to deliver (“possession with intent to

deliver”), 35 P.S. § 780-113(a)(30), on double jeopardy grounds.       For the

reasons that follow, we remand the case for the trial court’s compliance with

Rule 587(B) of the Pennsylvania Rules of Criminal Procedure.

       Given our disposition of this case, a recitation of the facts underlying

Robinson’s convictions is unnecessary.      On April 10, 2014, a jury found

Robinson guilty of possession of a controlled substance and possession of

drug paraphernalia.1 The jury could not come to a decision on Robinson’s



1
    35 P.S. § 780-113(a)(16), (32).
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possession with intent to deliver charge and the trial court declared a

mistrial as to that offense.

      On June 24, 2014, the trial court sentenced Robinson to one to two

years of incarceration. On June 30, 2014, Robinson filed a timely notice of

appeal from his June 24, 2014 judgment of sentence, which this Court

affirmed on August 4, 2015.     Subsequently, the Commonwealth listed the

possession with intent to deliver charge for re-trial. In response, on July 24,

2014, Robinson filed a motion to dismiss the possession with intent to

deliver charge as violative of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and Article I, Section 10 of the

Pennsylvania Constitution. On November 24, 2014, following oral argument,

the trial court denied Robinson’s motion to dismiss.2 On December 5, 2014,

this appeal followed. On December 9, 2014, the trial court ordered Robinson

to file a concise statement of the errors complained of on appeal pursuant to

Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.              On

December 29, 2014, Robinson filed his timely Rule 1925(b) statement.

      On appeal, Robinson raises the following issue for our review and

determination:

            Where the Commonwealth fails to meet its burden of
            proof resulting in a hung jury on a possession with
            intent to deliver charge, but the jury enters a finding
            of guilty on the underlying possession charge, is the


2
  On August 19, 2014, Robinson was paroled from the sentence imposed on
June 24, 2014.


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            Commonwealth barred on double jeopardy principles
            from retrying the possession with intent to deliver
            [charge] on the same set of facts?

Robinson’s Brief at 5.

      Before we may address the merits of Robinson’s appeal, we must

determine   whether      we   have   jurisdiction   over   the   appeal.   See

Commonwealth v. Blystone, ___ A.3d ___, 2015 WL 4401559 at *5 (Pa.

2015) (finding that issues of jurisdiction may be raised sua sponte).

Regarding appeals from an order denying a motion to dismiss based on

double jeopardy grounds, our Supreme Court has stated the following:

            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 Court
            shortly thereafter made clear that a 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)], this 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. 508 A.2d at 291.

Commonwealth v. Orie, 22 A.3d 1021, 1024-25 (Pa. 2011).



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      In 2013, Rule 587(B) was added to the Pennsylvania Rules of Criminal

Procedure to govern pretrial double jeopardy motions. Rule 587(B) provides

as follows:

              (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.

              (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).

      Recently, in Commonwealth v. Taylor, ___ A.3d ___, 2015 WL

4394254 (Pa. Super. 2015), this Court had the opportunity to interpret Rule




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587(B) in the context of a trial court’s failure to comply with subsections (3)

through (6).   Id. at *4.   In Taylor, the trial court failed to enter on the

record a statement of findings of fact and conclusions of law and did not

make a determination of whether the defendant’s motion to dismiss on

double jeopardy grounds was frivolous. Id. This Court explained,

            To establish whether a motion to dismiss on double
            jeopardy grounds qualifies as a collateral order, trial
            courts must now, inter alia, satisfy Rule 587(B)(3),
            (4), (5), and (6). Subsection (B)(3) requires the
            trial court, following a hearing, to enter on the
            record a statement of findings of fact and
            conclusions of law and its disposition of the double
            jeopardy motion. Subsection (B)(4) requires the
            trial court to render a specific finding on
            frivolousness in the event the court denies the
            double jeopardy motion. Subsection (B)(5) requires
            the trial court, if it finds frivolous the double
            jeopardy motion, to inform on the record a
            defendant of his or her right to petition for review
            under Pa.R.A.P. 1573 within 30 days of the order
            denying the motion. Subsection (B)(6) requires the
            court to advise a defendant of his immediate right to
            a collateral appeal if the court does not find the
            double jeopardy motion to be frivolous.

Id. (footnote omitted).

      Regarding the trial court’s failure in Taylor to fully comply with Rule

587(B), this Court held:

            Instantly, our review of the record, in particular the
            January 27, 2014 argument transcript, reveals the
            trial court failed to comply with Rule 587(B)(3)
            though (6). Specifically, as required under Rule
            587(B)(3), following oral argument, the trial court
            failed to enter on the record a statement of findings
            of fact and conclusions of law. Moreover, in denying



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            Appellant’s motion to dismiss on double jeopardy
            grounds, the trial court also failed to render a
            specific finding on frivolousness, as required under
            Rule 587(B)(4). The trial court did not find whether
            Appellant’s motion to dismiss was or was not
            frivolous. Given the trial court’s failure to comply
            with Rule 587(B), we are unable to decide whether
            we may exercise jurisdiction over this appeal.
            Consequently, we remand this matter to the trial
            court for compliance with Rule 587(B) and
            preparation of a supplemental Rule 1925(a) opinion
            within sixty days of the date of this opinion.

Id. (footnotes omitted).

     Here, as in Taylor, the trial court failed to render a specific finding in

the record on frivolousness, as required under Rule 587(B)(4).      Thus, the

trial court in this case failed to comply with Rule 587(B)(4) through (6).

Because the trial court failed to fully comply with Rule 587(B), we are unable

to decide whether we may exercise jurisdiction over this appeal.      See id.;

see also Orie, 22 A.3d at 1024-25. Therefore, we remand this matter to

the trial court for compliance with Rule 587(B) and preparation of a

supplemental Rule 1925(a) opinion within sixty days of the date of this

memorandum.3

     Case remanded. Panel jurisdiction retained.




3
   Our retention of jurisdiction over this appeal does not relieve Robinson of
his obligation to comply with Rule 587(B)(5) and Rule 1573 of the
Pennsylvania Rules of Appellate Procedure in the event the trial court
determines his double jeopardy claim to be frivolous.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2015




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