J-A09001-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,       IN THE SUPERIOR COURT OF
                                          PENNSYLVANIA
    Appellee

                    v.

JEFFERY MASSI,



       Appellant                                         No. 98 EDA 2014


                  Appeal from the Order December 9, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001179-2012


BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

DISSENTING MEMORANDUM BY BOWES, J.:              FILED DECEMBER 30, 2015

       I must respectfully dissent from the learned majority’s conclusion that

this Court lacks jurisdiction at this stage to reach the merits of Appellant’s

non-frivolous double jeopardy challenge.       The majority’s reading of the

record and Pa.R.Crim.P. 587(B) unnecessarily elevates form over substance.

Indeed, the Commonwealth concedes that this Court has jurisdiction over

this   appeal.     See   Commonwealth’s     brief   at   4   n.2.   While   the

Commonwealth’s position is not controlling, it refutes any implication by the

majority that the parties herein are unsure of the trial court’s finding of non-

frivolousness.

       Instantly, the trial court conducted a hearing on Appellant’s double

jeopardy motion, which complied with Rule 587(B)(2). At the conclusion of
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that proceeding, the court, via its court crier, placed on the record findings

of fact and conclusions of law and denied the motion.       See Pa.R.Crim.P.

587(B)(3).    At no point did the court find Appellant’s motion frivolous.

Pointedly, in direct response to Appellant’s counsel stating that, in order to

allow him to appeal, the court had to find his motion non-frivolous, the court

twice instructed him that the order was appealable. I reproduce the relevant

exchange in its entirety:

      Counsel: Judge, at this point, I would like to take an immediate
      appeal under the authority of United States versus States.[1]

      Court: We’ll give this a date. Time will be ruled excludable.
      We’ll give it a three-month status date.

      Counsel: Your Honor, if you could issue an order so I can appeal
      it. The only requirement is that you don’t find the issue to
      be frivolous which would allow me to – and I do think based on
      my –

      Court: If you want to appeal it, I’ll allow you to appeal it,
      and we’ll issue opinions accordingly.

      Court Crier: March 11.

      Court: Order is appealable.

N.T., 12/9/13, at 13-14 (emphases added).




1
    Appellant mistakenly stated United States instead of Commonwealth. In
Commonwealth v. States, 938 A.2d 1016, 1019 n.6 (Pa. 2007), the
Pennsylvania Supreme Court explained that absent a finding of
frivolousness, appellate courts have jurisdiction to consider appeals from the
denial of a double jeopardy motion.



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        The majority essentially reasons that the failure to utter the magic

words that the motion was “non-frivolous” results in the trial court having

neglected to make such a finding.           This not only defies a common sense

reading of the record, but the very understanding of both Appellant and the

Commonwealth.       Frankly, the majority’s reading of the record and Rule

587(B) turns one of the purposes of the rule, to avoid delay tactics, on its

head.     If a court telling an attorney that the order is appealable, multiple

times, in direct response to the attorney’s statement that the court must

make a finding of non-frivolousness, does not equal compliance with Rule

587(B)(4), then only the utterance of talismanic words would satisfy the

majority. This is, of course, inconsistent with our jurisprudence in a host of

other areas that eschews the importance of articulating such talismanic

phrases.    See also Commonwealth v. Gains, 556 A.2d 870 (Pa.Super.

1989)    (en   banc)   (“The   focus   of    our   Supreme   Court's   decision   in

[Commonwealth v.] Brady, [508 A.2d 286 (Pa. 1986)], and our focus

presently, is not upon the presence of the written word "frivolous" in a trial

court's opinion or order. The focus is upon an express determination on the

part of the trial court that a double jeopardy claim is frivolous, meaning

clearly and obviously without merit.”).        What is more is that neither Rule

587(B) nor Commonwealth v. Taylor, 120 A.3d 1017 (Pa.Super. 2015),

supports the majority’s overly strict construction of the rule.




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      The origins of rule 587(B) illustrate better my reasoning, therefore, a

brief discussion on the evolution of pre-trial double jeopardy appeals is

warranted. In Commonwealth v. Bolden, 373 A.2d 90, 93 (Pa. 1977), a

plurality of our High Court opined,

      We hold that the denial of a pre-trial application to dismiss an
      indictment on the ground that the scheduled trial will violate the
      defendant's right not to be placed twice in jeopardy may be
      appealed before the new trial takes place. Once a defendant is
      erroneously subjected to another prosecution, neither an
      acquittal nor appellate reversal of a conviction is sufficient to
      vindicate his constitutional right not to be placed twice in
      jeopardy. We conclude that the right to be free from multiple
      prosecution[s], embodied in the double jeopardy clause, can be
      adequately protected only by permitting an immediate appeal
      from a trial court's denial of relief.

      Subsequently, a majority of the Supreme Court “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. Orie, 22 A.3d 1021, 1024 (quoting

Commonwealth v. Haefner, 373 A.2d 1094, 1095 (Pa. 1977) (per

curiam)) (emphasis in Orie).     Thereafter, in Brady, supra, our Supreme

Court narrowed the applicability of a Bolden as-of-right appeal.

      The Brady Court held that where a trial court makes a written finding

that a double jeopardy motion is frivolous, an automatic Bolden appeal is

impermissible.   See Brady, supra at 291.         Currently, the comment to

Pa.R.A.P. 313 still retains a cite to Brady and indicates only where an

express finding of frivolousness is found will a collateral appeal be improper.


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Brady also provided a stay procedure in those cases where a defendant

wished to challenge a trial court’s finding of frivolousness.    However, the

Brady Court did not identify which appellate court would hear such a

challenge.

      This Court later determined in Commonwealth v. Learn, 514           A.2d

910 (Pa.Super. 1986), overruled by Orie, supra, that a stay request had to

be made to the Pennsylvania Supreme Court.           The Learn Court also

determined that a remand was required to the trial court because it had not

made a written finding that the double jeopardy motion was frivolous. This

latter aspect of Learn was expressly overruled by Gains, supra.

      The Gains Court, held, “in view of the fact that we presently have no

written finding by the trial court that appellant's double jeopardy claim is a

frivolous one, we exercise jurisdiction over this appeal.”      Id. at 875.   It

added, “We now expressly overrule the decision of a panel of this Court in

Commonwealth v. Learn, supra, to the extent that it holds that where a

trial court fails to make a written finding of frivolousness, a remand will be

ordered to afford the trial court an opportunity to determine whether such a

finding should be included in the record.” Id.

      In light of continued confusion over Brady, our Supreme Court

clarified that decision in Orie, supra and referred the manner in which

double jeopardy motions should be handled to the rules committee.         As a

result, the Supreme Court adopted Rule 587(B). That rule reads,


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      (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).

      The current rule does not state that a trial court’s failure to place on

the record the magic words of “non-frivolous” results in this Court lacking

jurisdiction, nor does the comment to the rule so read.      Rather, the trial

court must explicitly find frivolousness in order to trigger a differing

jurisdictional posture.   Our Supreme Court has repeatedly cautioned this

Court against reading requirements into our procedural rules that do not

exist by their terms.     See Newman Dev. Group of Pottstown, LLC v.

Genuardi's Family Mkts., Inc., 52 A.3d 1233 (Pa. 2012); see also



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Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (chastising this

Court for attempting to create a mandatory procedural rule).      The official

note to Pa.R.A.P. 1573, the rule that applies to appealing a determination

that a double jeopardy motion is frivolous, expressly provides, “If a trial

court denies such a motion 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.” Official Note, Pa.R.A.P. 1573. The majority’s position

is inconsistent with this comment.   Furthermore,    it is not suggested that

neglecting to use the magic words “non-frivolous” removes jurisdiction. The

comment to Rule 587(B)(4) itself states, “Paragraph (B)(4) requires the

judge to make a specific finding whether the motion is being dismissed as

frivolous.” It does not state that the failure to set forth that the motion is

non-frivolous precludes jurisdiction under Pa.R.A.P. 313.

      Admittedly, the trial court failed to tell counsel explicitly, although

counsel already was aware of his right to appeal, that Appellant could appeal

under the collateral order rule, Pa.R.A.P. 313. This failure, however, does

not implicate jurisdiction when the attorney files the appropriate appeal in a

timely fashion.2     Indeed, a trial court’s failure to properly inform a

defendant that he must appeal within thirty days of the denial of his post-

2
   Nothing in my decision should be read as endorsing a trial court’s neglect
in following our rules of procedure, nor am I attempting to eviscerate or
broaden the rule. Rather, a plain reading of the rule and the record makes it
evident that the trial court did not find Appellant’s motion frivolous. A
remand for a one-sentence order to that effect is unnecessary.


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sentence motion does not implicate our jurisdiction if the attorney timely

appeals.   The same applies herein.     The trial court’s non-compliance with

Rule 587(B)(6) is harmless precisely because counsel properly appealed and

the court explicitly declined to find Appellant’s motion frivolous.3

      Moreover, the majority cannot cite any binding or analogous precedent

in support of its position. The Taylor case simply is not controlling in this

matter because therein the court did not enter on the record any factual

findings or conclusions of law nor did it expressly inform the defendant that

he could appeal after the attorney asked for a finding of non-frivolousness.

Further, although decided before Rule 587, our decision in Gains, supra is

instructive.   First, I note that our Supreme Court is presumably aware of

existing law and in fact cited Gains in its most recent double jeopardy case,

Orie, supra.    More importantly, Gains is quoted in the comment to Rule

587(B)(4).

      At the time of the Gains decision, a written finding of frivolousness

was required to preclude a Bolden automatic appeal of the denial of a

motion to dismiss based on double jeopardy.           Rule 587(B) alters that

requirement insofar as it no longer mandates a written finding, and only

3
   Appellant in his brief set forth that this Court has jurisdiction over this
appeal pursuant to Commonwealth v. Haefner, 373 A.2d 1094 (Pa.
1977), as well as Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977), and
Commonwealth v. Brady, 508 A.2d 286 (Pa. 1986). He expressly states
that Pa.R.A.P. 313 authorizes, “non-frivolous appeals as of right from
collateral orders of the Court of Common Pleas denying a double jeopardy
claim.” Appellant’s brief at 1.


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requires a record-based determination of frivolousness. However, the Gains

Court also held that in the absence of an express written finding of

frivolousness, a remand to afford the trial court such opportunity was

unwarranted and that the trial court’s silence did not preclude jurisdiction.

Gains, supra at 875.

      A similar result should obtain here where the trial court made no

explicit finding of frivolousness on the record and, in fact, instructed

Appellant on multiple occasions that he could appeal after counsel asked for

a finding of non-frivolousness.   Instead, the majority essentially re-writes

Rule 587(B)(4) to state that, “In a case in which the judge denies the

motion, the findings of fact shall include a specific finding as to non-

frivolousness. The failure to do so shall result in the appellate court

lacking jurisdiction and require a remand.”          Compare Pa.R.Crim.P.

587(B)(4). This is inconsistent with the express language of Rule 587(B),

the spirit and letter of our en banc decision in Gains, and the official

comment to Pa.R.A.P. 1573.

      In sum, neither Rule 587(B) nor Pa.R.A.P. 1573, nor any precedent,

compels the majority’s novel reading of Rule 587(B) as mandating a court

place on the record the magic words of non-frivolousness to confer

jurisdiction upon this Court. In my view, this Court has jurisdiction and we

should reach the merits of Appellant’s arguments.    I therefore respectfully

dissent.


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