J-S07017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JEROME ANTHONY KENNEDY, JR.               :
                                           :
                     Appellant             :   No. 1038 MDA 2018

                Appeal from the Order Entered June 15, 2018
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0001924-2016


BEFORE:     OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:               FILED: MAY 2, 2019

      Jerome Anthony Kennedy, Jr. appeals from the order denying his motion

to dismiss, which alleged the Commonwealth was barred from prosecuting

him on double jeopardy grounds. Because the trial court did not make a finding

as to whether Kennedy’s motion was frivolous, and such a finding is required

before we can determine whether we have jurisdiction over this appeal, we

remand.

      The trial court set forth the following procedural history:

          The Commonwealth charged [Kennedy] with delivery of a
          controlled substance, three counts of possession with intent
          to deliver a controlled substance, two counts of possession
          of a controlled substance, two counts of possession of drug
          paraphernalia, and one count of criminal use of a
          communication facility.

          A jury trial began on December 7, 2017. During the course
          of the trial, jurors reported an incident that happened on the
          elevator when they were leaving for their lunch break.
          Before the elevator doors closed, two of [Kennedy’s] female

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S07017-19


         supporters pushed their way onto the already full elevator.
         When the elevator arrived at the lobby, the taller lady (who
         was subsequently identified as [Kennedy’s] girlfriend, Alexis
         Lucas) turned away from the elevator doors and toward the
         six or seven jurors who were on the elevator. Ms. Lucas put
         her arms out, blocking the jurors and other people who were
         on the elevator from exiting. Ms. Lucas did this for
         approximately 15 seconds, and then she turned around,
         walked out of the elevator, and slammed the outside door.

         When the jurors came back from lunch, they reported the
         incident to the court. Following an in camera hearing, the
         court declared a mistrial, without objection from defense
         counsel.

         Following the mistrial, defense counsel, who was privately
         retained, filed a motion to withdraw because [Kennedy] was
         not complying with his contractual obligations. The court
         granted the motion to withdraw and an assistant public
         defender began representing [Kennedy].

         On April 23, 2018, [Kennedy] filed a motion to dismiss
         based on double jeopardy grounds. [Kennedy] contended
         that there was not a manifest necessity for the court to
         declare a mistrial sua sponte and less drastic measures
         should have been considered, including waiting to see if Ms.
         Lucas would be called as a witness for the defense. On May
         31, 2018, following an argument, the court denied
         [Kennedy’s] motion.

Trial Court Opinion, filed November 8, 2018, at 1-2.

      At the hearing on the motion, the trial court did not make a finding on

the record as to whether Kennedy’s motion to dismiss was frivolous. The order

denying the motion also did not include a finding as to whether the motion

was frivolous.

      Kennedy filed a Notice of Appeal. He raises the following question:

“Whether the trial court erred in denying [Kennedy’s] motion to dismiss based




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on [Kennedy’s] constitutional right against double jeopardy?” Kennedy’s Br.

at 7.

        Before we can reach the merits of Kennedy’s claim, we must determine

whether we have jurisdiction over the order denying his motion to dismiss.

        An order denying a motion to dismiss on double jeopardy grounds may

be appealable as a collateral order under Pennsylvania Rule of Appellate

Procedure 313(b). See Commonwealth v. Taylor, 120 A.3d 1017, 1021

(Pa.Super. 2015). The Pennsylvania 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.” Id. (citing Commonwealth v. Brady, 508 A.2d 286, 291 (Pa.

1986)). Pennsylvania Rule of Criminal Procedure 587 provides, 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
          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.




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         (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). When denying the motion, the Rule

requires that the trial judge make a finding as to whether the defendant’s

motion is frivolous. See id. If the trial court finds the motion was not frivolous,

the order is appealable as a collateral order. See Taylor, 120 A.3d at 1022-

23. If, however, the court finds the motion is frivolous, we have jurisdiction

only if the defendant files, and we grant, a petition for review under Rule 1573

and thus allow the appeal. See id.; Pa.R.Crim.P. 587(B)(5); Pa.R.A.P. 1573;

see also G. Ronald Darlington et al. 20A West’s Pa. Prac., Appellate Practice

§ 1573:1. Therefore, if a trial court does not make a finding as to

frivolousness, this Court cannot determine whether we have jurisdiction.

      Here, we have reviewed the transcript of the hearing addressing the

motion to dismiss and the order and opinion addressing the motion, and have

found no trial court determination as to whether the motion to dismiss was

frivolous. We therefore remand this case to the trial court for compliance with

Rule 587 and preparation of a supplemental opinion pursuant to Pennsylvania


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Rule of Appellate Procedure 1925(a) within 45 days of the date of this

memorandum. Upon the filing of the supplemental opinion, the trial court shall

return the certified record to this court.1

       Case remanded. Jurisdiction retained.

Judge Pellegrini joins the Memorandum.

Judge Olson files a Concurring Memorandum.




____________________________________________


1 Our retaining of jurisdiction over this appeal would not excuse Kennedy’s
non-compliance with Criminal Procedure 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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