J-S07017-19
                                2019 PA Super 263


 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.

CONCURRING OPINION BY OLSON, J.:                    FILED AUGUST 27, 2019

      I agree with the learned majority that the trial court’s order denying

Appellant’s motion to dismiss on the basis of double jeopardy should be

affirmed.   I write separately, however, to address a procedural issue that

arose in this case that I believe is problematic.

      As the majority notes, “[a]n order denying a motion to dismiss on double

jeopardy grounds may be appealable as a collateral order under Pennsylvania

Rules of Appellate Procedure 313(b), if the trial court has determined that the

motion is not frivolous.” Majority Opinion at *6. As also noted by the learned

majority, the trial court in this case failed to make a frivolousness

determination; therefore, pursuant to Commonwealth v. Taylor, 120 A.3d

1017 (Pa. Super. 2015), we remanded the case to the trial court to make such

a determination. Moreover, in accordance with Taylor, we were constrained



* Retired Senior Judge assigned to the Superior Court.
J-S07015-19

to retain panel jurisdiction while the case was before the trial court on remand.

I write separately because – as to the issue of retaining panel jurisdiction – I

believe that Taylor was incorrectly decided. In my view, but for the Taylor

decision which is binding on this panel1, we should have relinquished

jurisdiction upon remand.

      In this Court’s memorandum decision in which this case was remanded

to the trial court, the majority noted:

      When denying [a defendant’s motion to dismiss on double
      jeopardy grounds, Pennsylvania Rule of Criminal Procedure
      587(B)[2]] requires that the trial judge make a finding as to
      whether the defendant’s motion is frivolous. If the trial court

1
 It is well established that one three-judge Superior Court panel cannot
overrule another. Commonwealth v. Taggart, 997 A.2d 1189, 1201 n.16
(Pa. Super. 2010). This action must come, if at all, from an en banc panel of
this Court or the Pennsylvania Supreme Court. Commonwealth v. Shaffer,
117 A.3d 241, 246 (Pa. Super. 2017).

2
 Specifically, Rule 587 of the Rules of Criminal Procedure provides in pertinent
part:

      (4) In a case in which the judge denies the motion [to dismiss on
      double jeopardy grounds], 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 the 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)(4)-(6).



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      [does not find the motion frivolous] . . . , the order is appealable
      as a collateral order. 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. Therefore, if a trial court does not make a
      finding as to frivolousness, this Court cannot determine
      whether we have jurisdiction.

Majority Memorandum, 5/2/19, at *4 (citations omitted; emphasis added).

      In both Taylor and the case at bar, the trial court failed to make a

“specific finding as to frivolousness.” See Pa.R.Crim.P. 587(B)(4). Therefore,

in both cases, this Court remanded to the trial court, so that the trial court

could make that additional determination and pronouncement.            Further, in

Taylor, this Court retained panel jurisdiction over the case; and, since we

were bound by Taylor, this panel did the same. However, I do not believe

that the Taylor Court was correct to retain panel jurisdiction over the case.

      Since the trial court did not make an express finding under Pa.R.Crim.P.

587(B)(4) as to whether Appellant’s motion to dismiss was frivolous, we did

not know at the time that we remanded it whether this Court had appellate

jurisdiction. See Majority Memorandum, 5/2/19, at *4 “([I]f a trial court does

not make a finding as to frivolousness, this Court cannot determine whether

we have jurisdiction.”). Under Pa.R.CrimP. 587(B)(5), if the trial court found

that the motion was frivolous, the order would have been interlocutory and

not immediately appealable. Instead, Appellant would have been required to

petition this Court for review under Rule 1573 of the Rules of Appellate

Procedure. On the other hand, if the trial court concluded that the motion to



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J-S07015-19

dismiss was not frivolous, then it would be a collateral order and Appellant

would have the right to an immediate appeal under Rule 313 of the Rules of

Appellate Procedure.

      Here, after remand, the trial court found that Appellant’s motion to

dismiss on double jeopardy grounds was not frivolous. Thus, as the majority

notes, this Court now has jurisdiction in this case under Rule 313 of the Rules

of Appellate Procedure.3 However, in my view, by retaining panel jurisdiction

in instances such as this, we are creating uncertainty for the litigants once the

trial court renders a decision regarding frivolousness. If, on remand, the trial

court determines that a defendant’s motion to dismiss was frivolous, this Court

would be required to quash the appeal on the basis that the order was

interlocutory.   However, by telling the parties that we are retaining panel

jurisdiction over the appeal, we are potentially sowing great confusion.

Certainly, a defendant might incorrectly believe that he or she does not need

to file a petition for review of the frivolousness determination as we specifically




3
 Since the trial court made an express finding in this case that Appellant’s
motion to dismiss based on double jeopardy grounds was not frivolous,
thereby creating a collateral order that is immediately appealable under Pa.
R.A.P. 313, an argument may be made that this issue is now moot. However,
as I believe that it was improper to retain jurisdiction at the time the case was
remanded for a frivolousness determination, I conclude that it is also improper
for this particular panel to render a decision on the merits of Appellant’s
appeal. Instead, we should have relinquished jurisdiction upon remand and,
once the trial court entered the order finding Appellant’s motion was not
frivolous, Appellant should have been required to file a new notice of appeal
which would have resulted in this case going to a different panel.



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J-S07015-19

told him or her that we were retaining panel jurisdiction over the entire appeal.

However, if the defendant does not file a petition for review in accordance with

Pa.R.A.P. 1573 within 30 days of the trial court’s new order after remand, he

or she will have missed the opportunity for this Court to consider the

frivolousness issue before he or she is subjected to a second trial.4 I believe

that it is much more appropriate in cases such as this for us to vacate the trial

court’s order denying a defendant’s motion to dismiss on double jeopardy

grounds, remand for the trial court to enter a new order in compliance with

Pa.R.Crim.P. 587, and relinquish jurisdiction.      Thus, after the trial court

renders a new order after remand, a defendant may either file a petition for

review (if the trial court finds the motion was frivolous), or file an immediate




4
 I would note that, even if a petition for review is not filed or, if filed not
granted, a defendant does not waive his or her argument that the criminal
case should be dismissed on the grounds of double jeopardy. As the note to
Rule 587 provides:

      Although the judge is required to advise the defendant of his or
      her appellate rights in paragraphs (B)(5) and (B)(6) [of
      Pa.R.Crim.P. 587] upon dismissing the motion, nothing in the rule
      is intended to preclude the defendant from proceeding to trial
      without first appealing the double jeopardy question. See e.g.,
      Commonwealth v. Lee, 416 A.2d 503, 504 (Pa. 1980)
      (“Unquestionably, appellant could have sought immediate
      appellate review of the questions involved. For whatever reason,
      however, appellant proceeded to trial without first appealing the
      double jeopardy question. We believe that a defendant may
      choose to proceed to trial and if convicted, still challenge the
      propriety of the pretrial motion to dismiss on double jeopardy
      grounds on appeal”).

Pa.R.Crim.P. 587, Note.


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J-S07015-19

appeal under Pa.R.A.P. 313 (if the trial court finds that the motion was not

frivolous). This procedure is cleaner and leaves no room for doubt.

      Second, it is illogical for us to retain jurisdiction over cases such as this.

Pursuant to Taylor, unless a trial court makes an express finding under

Pa.R.Crim.P. 587(B) as to whether a defendant’s motion to dismiss was

frivolous, we do not know if this Court has jurisdiction over the case. Since

we do not know whether we, in fact, have jurisdiction over the case, our

jurisdiction has not yet been perfected and we have no jurisdiction to “retain.”

      Finally, I also believe that Superior Court Internal Operating Procedure

447(B) demands that we relinquish panel jurisdiction over appeals when a

case is remanded for a frivolousness determination. In relevant part, I.O.P.

447(B) declares:

        1. If a remand is made solely on procedural grounds, i.e., for
        the filing of an opinion, the submission of a missing part of
        the record, etc., jurisdiction should be retained by the panel.
        This will allow the appeal to retain the same appeal and
        journal numbers in the Superior Court and will enable the
        same panel which heard argument to render an ultimate
        decision without the necessity of reargument. In such cases,
        the panel ordering a remand shall fix the time within which
        the trial court shall act and return the case to the panel. In
        no event shall panel jurisdiction be relinquished but Superior
        Court jurisdiction be retained.

        2. If, however, the remand requires that the trial court
        conduct an evidentiary hearing, appoint new counsel for
        further proceedings in the trial court, or render a new or
        additional decision or pronouncement, etc., thus giving
        the trial court an opportunity to reconsider its prior decision
        or make a new decision, this will result in a new,
        appealable order. In that event, jurisdiction should be
        relinquished to the trial court.


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J-S07015-19



I.O.P. 447(B) (emphasis added).

      In cases such as this, we have remanded the case and ordered that the

trial court “render a new or additional . . . pronouncement.” Id. Therefore, I

believe that the trial court’s order, on remand, constitutes “a new, appealable

order” and that, pursuant to I.O.P. 447(B), we must relinquish jurisdiction

over the appeal. See id.

      In conclusion, I believe clarity, logic, and I.O.P. 447(B) require that we

simply relinquish jurisdiction in cases in which this Court remands a matter to

the trial court to make a determination as to frivolousness under Rule 587(B)

of the Pennsylvania Rules of Criminal Procedure.       Then, if the trial court

determines on remand that the motion was not frivolous, the defendant may

file a notice of appeal from that true collateral order; and, if the trial court

determines that the motion was frivolous, the defendant may file a petition

for review of the frivolousness determination.




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