J-S19005-15


                                  2015 PA Super 155

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

JERRY TAYLOR

                            Appellant                       No. 394 EDA 2014


                 Appeal from the Order dated January 27, 2014
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0004655-2013


BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

OPINION BY STABILE, J.:                                       FILED JULY 20, 2015

       Appellant Jerry Taylor appeals from the January 27, 2014 order of the

Court of Common Pleas of Philadelphia County (“trial court”), denying his

pretrial motion to dismiss on double jeopardy grounds a charge under

Section 6105 of the Pennsylvania Uniform Firearms Act of 1995 (“VUFA”), 18

Pa.C.S.A. § 6105. Upon review, we remand the matter to the trial court for

compliance with Pa.R.Crim.P. 587(B).

       On February 28, 2013, in connection with the February 18, 2013

shooting in which Shay Gibson was injured,1 the Philadelphia Police

Department      charged      Appellant    with,   inter   alia,   attempted   murder,

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1
  Unless another source is cited, the facts are taken from the trial court’s
Pa.R.A.P. 1925(a) Opinion, 8/13/14, at 1-4.
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aggravated assault, possessing an instrument of a crime (“PIC”), carrying a

firearm without a license, carrying a firearm on the public streets of

Philadelphia, and persons not to possess firearms.2 On March 1, 2013, the

police executed a search warrant on Appellant’s residence, confiscating a

firearm that was unrelated to the February 18, 2013 shooting.       Appellant,

however, was not charged with any offenses related to the March 1, 2013

discovery of the firearm.

        On March 15, 2013, Appellant was indicted by a grand jury on the

foregoing charges stemming from the February 18, 2013 shooting. Prior to

the commencement of trial, the trial court severed the VUFA Section

6105(a)(1) charge (persons not to possess firearm) from all the other

charges to be tried.3 As a result, the parties agreed to hold a separate trial

on the Section 6105 charge.            On November 22, 2013, a jury acquitted

Appellant on all charges severed from the VUFA Section 6105(a)(1) charge.


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2
  18 Pa.C.S.A. §§ 901, 2502, 2702(a)(1), 907(a), 6106(a)(1), 6108, and
6105(a)(1), respectively.
3
    Section 6105 provides in pertinent part:

        A person who has been convicted of an offense enumerated in
        subsection (b), within or without this Commonwealth, regardless
        of the length of sentence or whose conduct meets the criteria in
        subsection (c) shall not possess, use, control, sell, transfer or
        manufacture or obtain a license to possess, use, control, sell,
        transfer or manufacture a firearm in this Commonwealth.

18 Pa.C.S.A. § 6105(a)(1).



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       Following the jury’s verdict, the trial court informed Appellant of the

outstanding Section 6105 charge related to the February 18, 2013 shooting

and provided him with the option of either proceeding to a jury or bench

trial. Appellant opted for a jury trial. The court set a trial date for May 5,

2014.4 On January 5, 2014, Appellant filed a motion to dismiss the severed

Section 6105 charge related to the February 18, 2013 shooting based on

double jeopardy.       Appellant argued that the severed Section 6105 charge

should be dismissed because a jury already had “acquitted [him] of the

charges of possessing a firearm in connection with” Sections 6106, 6108 and

PIC. See Motion to Dismiss, 1/5/13, at 5. Differently put, Appellant argued

“the initial jury has already decided that [Appellant] [] did not possess a

firearm beyond a reasonable doubt.” Id. Following oral argument, the trial

court denied Appellant’s motion on January 27, 2014.          Appellant timely

appealed to this Court.

       In his Pa.R.A.P. 1925(b) statement of errors complained of on appeal,

Appellant raised the following assertions of error.

       1. The trial court committed error at the time of trial and again
       when it failed to grant [A]ppellant’s [pre-trial] [m]otion to
       [d]ismiss.   Accordingly, [A]ppellant’s trial on the remaining
       charge of VUFA – 6105 is barred by the doctrines of collateral
       estoppel and/or double jeopardy in light of the two issues below:

              a. The trial court committed error when it sua sponte
              dismissed the jury after it had returned verdicts of

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4
  The docket indicates the trial has been continued pending the outcome of
this appeal.



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            not guilty but before they could reach a decision on
            the remaining bifurcated charge of VUFA – 6105.

            b. The trial court committed error and/or prosecutor
            is barred from bringing [A]ppellant to trial on the
            charge of VUFA – 6105 because the bills of
            information list only one date as the date the crime
            was committed. The prosecutor explained that she
            wanted to proceed with VUFA – 6105 for possessing
            a firearm on the day of the shooting and weeks later
            when     the   police   enter[ed]    and   search[ed]
            [A]ppellant’s premises.      However, the bills of
            information were never amended to include a second
            subsequent date. Thus, the charge of VUFA – 6105
            applies only to the day of the shooting. Accordingly,
            the jury’s verdict[s] of not guilty to the possessory
            crimes of VUFA – 6106 and PIC also speak to the
            possessory charge of VUFA – 6105. The doctrine of
            collateral estoppel applies to bar a subsequent
            prosecution.


Appellant’s Rule 1925(b) Statement.     In response, the trial court issued a

Pa.R.A.P. 1925(a) opinion. The trial court preliminarily noted that it severed

the Section 6105 charge—and Appellant agreed to the severance—because

the charge required evidence that Appellant previously was convicted of a

crime. Addressing Appellant’s double jeopardy/collateral estoppel argument

with respect to the VUFA Section 6105 charge related to the February 18,

2013 shooting, the trial court concluded “[i]n this case, with respect to the

Section 6105 charge, jeopardy never attached and the doctrine of collateral

estoppel is inapplicable.”   Trial Court Opinion, 8/13/14, at 7.    Specifically,

the trial court reasoned “[t]he jury was sworn after the parties agreed to

bifurcate the Section 6105 charge.     Appellant subsequently was arraigned

and pleaded not guilty to all of the above-referenced charges except the

charge under Section 6105, for which he was not arraigned, and for which

he therefore entered no plea.” Id.

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       The trial court rejected Appellant’s argument that the court erred in

dismissing the jury after it rendered its verdict of acquittal with respect to

the non-severed charges arising out of the February 18, 2013 shooting. The

trial court noted “Appellant has not advised [the trial court] of any case law

or rule of procedure that supports his proposition” that the same jury had to

decide the severed Section 6105 charge. Id. at 8, n.2.

       The    trial    court   next   addressed   Appellant’s   argument   that   the

Commonwealth may not prosecute him under Section 6105 in connection

with the firearm recovered from his residence on March 1, 2013, because

the Commonwealth did not include the March 1, 2013 date in the bill of

information filed in connection with the February 18, 2013 shooting.              The

trial court concluded Appellant was aware of the firearm discovered at his

residence on March 1, 2013, and knew the Commonwealth intended to

prosecute him for the discovered firearm.           See id. at 9.    The trial court

found Appellant “had ample opportunity to prepare a defense to this

charge.”     Id.      Accordingly, the trial court concluded Appellant suffered no

prejudice from the defect in the bill of information. Id.

       On appeal, Appellant essentially raises three issues for our review.5

First, Appellant argues the trial court erred in denying his double jeopardy


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5
  Appellant’s questions presented do not match up with the arguments
raised in his brief. We, therefore, have reworded the issues to reflect the
arguments raised.



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claim with respect to the severed VUFA Section 6105 charge related to the

February 18, 2013 shooting.6 Second, Appellant argues the Commonwealth

may not prosecute him for a Section 6105 charge related to the March 1,

2013 firearm discovery, because that charge was not included in the bill of

information.7     Third, Appellant argues the trial court erred in denying him

the ability to be tried for the severed Section 6105 charge related to the

February 18, 2013 shooting by the same jury that acquitted him.

       Our scope and standard of review is as follows. “An appeal grounded in

double jeopardy raises a question of constitutional law. This [C]ourt’s scope

of review in making a determination on a question of law is, as always,

plenary. As with all questions of law, the appellate standard of review is de

novo.” Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008)

(citations and quotations marks omitted).

       Before we may address the merits, we must determine whether we

have jurisdiction over this appeal.            See Commonwealth v. Allburn, 721

A.2d 363, 365 (Pa. Super. 1998) (noting issues of jurisdiction may be raised



____________________________________________


6
 The Commonwealth notes in its brief that it does not intend to prosecute
Appellant for the severed Section 6105 charge related to the February 18,
2013 shooting. See Appellant’s Brief at 10.
7
   The Commonwealth also notes it has not yet charged Appellant with a
Section 6105 violation in connection with the March 1, 2013 discovery of the
firearm at his residence. Id. at 11.




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sua sponte), appeal denied, 739 A.2d 163 (Pa. 1999).8               Instantly,

Appellant claims jurisdiction properly lies in this Court under Pa.R.A.P.

311(a)(6). Rule 311, relating to interlocutory appeals as of right, provides

in pertinent part:

       (a) General rule. An appeal may be taken as of right and
       without reference to Pa.R.A.P. 341(c) from:

               ....

              (6) New trials. An order in a civil action or
              proceeding awarding a new trial, or an order in a
              criminal proceeding awarding a new trial where
              the defendant claims that the proper disposition of
              the matter would be an absolute discharge or where
              the Commonwealth claims that the lower court
              committed an error of law.


Pa.R.A.P. 311(a)(6) (emphasis added).            As the undisputed procedural

history, recited above, demonstrates, Appellant does not appeal an order

granting a new trial, as required under Rule 311(a)(6), but rather an order

denying his pretrial motion to dismiss on double jeopardy grounds.

Accordingly, Rule 311(a)(6) is inapplicable here, and as a result, we cannot

exercise jurisdiction on that basis.

       We, nonetheless, may be able to exert jurisdiction over this appeal to

the extent the order denying Appellant’s pretrial motion to dismiss on double




____________________________________________


8
  When considering the proper exercise of appellate jurisdiction, our review
is de novo, and the scope of review is plenary.        Commonwealth v.
Kennedy, 876 A.2d 939, 943 n.3 (Pa. 2005) (citation omitted).



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jeopardy grounds qualifies as a collateral order under Pa.R.A.P. 313. Rule

313 provides in part:

      A collateral order is 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.


Pa.R.A.P. 313(b). The comment to Rule 313 specifically cites as an example

of a collateral order an order denying a pre-trial motion to dismiss on double

jeopardy grounds. Id. Comment (citation omitted). Indeed, our Supreme

Court has held that orders denying a defendant’s motion to dismiss on

double jeopardy grounds are appealable as collateral orders, so long as the

motion is not found to be frivolous.    See Commonwealth v. Brady, 508

A.2d 286, 291 (Pa. 1986) (concluding “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.”), accord Commonwealth v. Orie, 22 A.3d 1021,

1026 (Pa. 2011).

      Years after Brady, in 2013, the Pennsylvania Rules of Criminal

Procedure were amended to codify the common law framework for motions

to dismiss on double jeopardy grounds. In particular, effective July 4, 2013,

Rule 587(B) was added to govern pretrial double jeopardy motions.

Specifically, Rule 587(B) provides in pertinent part:




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J-S19005-15


       (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[9] 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) (emphasis added).            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

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9
  The comment to Rule 587(B) provides that the term “hearing” under
subsection (B)(2) “includes the taking of testimony, or the hearing of
argument, or both.” Pa.R.Crim.P. 587(B) Comment.



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denies the double jeopardy motion.10           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.

       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).11         Specifically, as required under Rule 587(B)(3),

following oral argument, the trial court failed to enter on the record a
____________________________________________


10
   Although non-binding, as it has not been adopted by the Supreme Court,
and by way of background, the final report on Rule 587(B) issued by the
Criminal Procedure Rules Committee provides:

       The members of the Criminal Committee noted, anecdotally, that
       frequently judges will deny the motion to dismiss on double
       jeopardy grounds without making a finding with regard to
       frivolousness unless or until a defendant challenges the denial of
       the motion, and that some judges do not explain the basis for
       finding the motion frivolous. Recognizing that these practices
       are a source of confusion and that they cause problems for
       defendants and appellate courts when such motions are denied,
       the amendments require the trial judge to make a specific
       finding as to frivolousness at the time the judge decides the
       double jeopardy motion, and further require a trial judge to
       make a contemporaneous record of the judge’s reasons for his or
       her findings.

Motion to Dismiss Based on Double Jeopardy Grounds Final Report,
6/4/2013, at 3.
11
   We observe the trial court may not have fully appreciated the
amendments to Rule 587, as they were barely 6 months old at the time the
court decided Appellant’s motion to dismiss on double jeopardy grounds.




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statement of findings of fact and conclusions of law. Moreover, in denying

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.12 Upon the filing of a supplemental opinion, the certified record is

to be returned to this Court.

        Case remanded. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2015




____________________________________________


12
  Our retaining of jurisdiction over this appeal would not excuse Appellant’s
non-compliance with Criminal Rule 587(B)(5) and Appellate Rule 1573 in the
event the trial court determines his double jeopardy motion to be frivolous.



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