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                             2020 PA Super 107

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                         Appellee

                    v.

EMILY JOY GROSS

                         Appellant                  No. 375 EDA 2016


              Appeal from the Order entered January 15, 2016
              In the Court of Common Pleas of Monroe County
              Criminal Division at No: CP-45-CR-0000045-2010


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN,
        J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

DISSENTING OPINION BY STABILE, J.:                  FILED APRIL 29, 2020

     I join the dissent of my respected colleague Judge Dubow, but write

separately to emphasize why I believe the Majority’s view errs regarding the

jurisdictional importance of the 2013 amendments to Rule 587 to determine

whether this Court has jurisdiction to hear an appeal from the denial of a

pretrial double jeopardy motion.

     Prior to the 2013 amendments to Pa.R.Crim.P. 587, the rule simply

provided:

     (1) Upon motion and a showing that an information has not been
     filed within a reasonable time, the court may order dismissal of
     the prosecution, or in lieu thereof, make such other order as shall
     be appropriate in the interests of justice.

     (2) The attorney for the Commonwealth shall be afforded an
     opportunity to respond.
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      In 2013, Rule 587 was greatly expanded to include Paragraph (B) to

provide a detailed procedure to address motions to dismiss on double jeopardy

grounds. I repeat those provisions below by way of comparison to illustrate

the magnitude and detail of those changes from prior practice as to how

pretrial double jeopardy motions are to be decided.         As adopted by our

Supreme Court, Paragraph (B) now unambiguously provides:

      (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.

      (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 (emphasis added). As is apparent, the changes to Rule 587

were significant. Prior procedure was defined by case law. The amended rule

replaces that case law and provides direction, detail, and certainty to address

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how appellate jurisdiction is to be perfected or denied following disposition of

a double jeopardy motion.

       The rule is unambiguous: a trial court is obligated to hold a hearing and

thereafter make express findings and conclusions of law as to whether or not

the double jeopardy motion is frivolous. After making those findings, a court

is required to advise a defendant as to his or her appeal rights. If the court’s

findings are that the motion is not frivolous, or in other words, has merit, the

order qualifies as a collateral order subject to immediate appeal under

Pa.R.A.P. 313. If the findings are that the motion is frivolous, that being it

has no merit, then the order does not qualify as collateral and any attempt to

appeal must proceed by permission under Pa.R.A.P. 1573.1 A petition under

Chapter 15, however, does not stay trial court proceedings. See Pa.R.A.P.

1701(d).

       I offer several observations regarding Paragraph (B) of this rule. First,

after hearing, under Paragraph (B)(4), it is mandatory that the trial court

make specific findings as to frivolousness. This mandate is not limited to

instances where the motion is deemed to be frivolous. The court is to make

findings as to whether the motion has merit or whether it is frivolous. Second,

the obligation to make specific findings one way or the other is corroborated



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1As of January 7, 2020, Rule 1573 was repealed. Permission to appeal the
denial of a pretrial double jeopardy motion is now a part of Pa.R.A.P. 1311.
The amendment passed on January 7, 2020, is effective May 1, 2020.

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by and reinforced by Paragraphs (5) and (6), which direct the court to advise

a defendant as to his or her rights when the motion is frivolous or when it has

merit. When the court determines the motion is frivolous, a defendant is to

be advised that appeal may be permitted only by a petition for review. Where

the motion is deemed to have merit, a defendant is to be advised that the

order is immediately appealable as a collateral order. Third, under Paragraph

(6), the trial court’s findings allow an order to be appealed as of right as a

collateral order when the motion is found to have merit. Finally, and most

importantly, the rule as written does not admit an interpretation, as held by

the Majority, whereby it is presumed the denial of a pretrial double jeopardy

motion is appealable as a collateral order, unless there is a finding the motion

is frivolous. An interpretation that defaults to a meritorious motion in the

absence of a finding that the motion is frivolous violates the plain language of

the rule and rewrites its terms by case law.

      Both the learned Majority and Concurrence admit that the trial court

failed to make a finding of frivolousness. Majority Opinion at 20; Concurring

Opinion at 5 n. 1. The Concurrence is more pointed in this regard, as it notes

the trial court erred not only in failing to make express findings on the record

as to frivolousness, but also in failing to hold a hearing on the record, and in

failing to advise the Appellant of her appeal rights.     Id.   The unanimous

agreement in this Court that there was a failure to comply with Rule 587 brings

into focus where our views diverge; that being whether the failure to make


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findings under Rule 587 deprives this Court of jurisdiction to hear the denial

of a pretrial double jeopardy motion as a collateral order. Like my learned

colleague Judge Dubow, I too believe this failure precludes this Court from

having jurisdiction to hear an appeal until the necessary trial court findings

are made.

      The Majority overlooks the importance of Rule 587 to establishing

jurisdiction in this Court because our jurisdiction is dependent upon facts

found by the trial court.   The factual findings of a trial court establish the

predicate that determines whether we have jurisdiction to entertain a double

jeopardy appeal as a collateral order. This necessarily requires the trial court,

after hearing, to review the unique facts underlying the charges and prior

proceedings against a defendant to arrive at findings to support a decision

regarding frivolousness, and hence, a defendant’s appeal rights.          As an

appellate court, we do not make factual findings. See Commonwealth v.

Grant, 813 A.2d 726, 734 (Pa. 2002) (“appellate courts do not act as fact

finders”). Absent findings from the trial court, we cannot determine whether

we have jurisdiction to accept an appeal as a collateral order under Rule 313.

While it is true that prior to 2013, denial of a motion was immediately

appealable unless there was a finding the motion was frivolous, the

amendments to Rule 587 changed that to require identification of the factual




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bases that demonstrate whether the motion has merit or not.2 This Court

repeatedly reminds litigants that we are an error-correcting court and that we

must defer to facts found at the trial level if supported by the record. On

countless occasions, we reject appeals because we must defer to findings

made at the trial court level. Yet, in this instance, the Majority concludes we

can surmise a trial court would make factual findings that a double jeopardy

motion is not frivolous if it fails to make those findings to support jurisdiction

under Rule 313. The effect of the Majority’s decision is to rewrite Rule 587 by

decisional case law to provide that the rule is optional.       In essence, the

Majority would presume jurisdiction in the absence of findings.

       The rule makes it mandatory for a trial court to make findings

one way or the other as to whether a motion is frivolous.                 Simply

because a trial court does not make a finding as to frivolousness does

not mean the motion has merit so that we may consider the appeal as

collateral and appealable as of right under Rule 313. The failure to

make findings means only we do not know if the trial court considers


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2In Commonwealth v. Learn, 514 A.2d 910 (Pa. Super. 1986), we held 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. This remand aspect of Learn
was subsequently overruled by this Court in Commonwealth v. Gains, 556
A.2d 870 (Pa. Super. 1989) (en banc) (citing Commonwealth v. Brady, 508
A.2d 286 (Pa. 1986)). I note only that this Court did not have the benefit of
any subsequent case law or rule revision at the time Gains was decided. In
my view, the 2013 amendments to Rule 587 are aligned with our decision in
Learn.

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the motion to be frivolous or to be meritorious. Without a determination

as to frivolousness by the trial court, we are unable to determine whether we

have jurisdiction to entertain an appeal as of right. This is not to say that we

could not review the record and make a frivolousness determination, but doing

so would violate our jurisdiction and transform us from an appellate court to

a trial court.   Because Rule 587(B) now mandates that the trial court

determine whether an appeal may be by right or by permission, we no longer

may presume jurisdiction under Rule 313, as may have been the case in prior

practice as defined by then-extant case law.

      The Majority reaches the conclusion that we have jurisdiction by default

to hear this appeal under Rule 313 based upon old case law that pre-dates

the 2013 amendments to Rule 587. This reasoning fails to acknowledge the

sea change the 2013 amendments made to considering these motions and to

clarifying jurisdiction. Both the Majority and the Concurrence ably recap the

development of the appealability of pretrial double jeopardy motions from

Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977) (plurality opinion), that

held pretrial orders denying double jeopardy claims generally are final orders

for appeal purposes, through Commonwealth v. Orie, 22 A.3d 1021 (Pa.

2011), which clarified the prior practice of engaging in stay proceedings to be

by a petition for review to challenge a denial that found a motion to be

frivolous. However, the Majority fails to recognize that our Supreme Court in

Orie directed that both the Criminal Rules and Appellate Rules Committees


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reevaluate this pretrial procedural framework. In fact, they did and the rule

was changed.

     The March 7, 2012 final report of the Criminal Procedure Rules

Committee that proposed the adopted 2013 amendments to Rule 587 explains

the rationale behind adopting those amendments. The Committee reported:

     The Supreme Court in Commonwealth v. Orie, 22 A.3d 1021
     (Pa. 2011), clarified the appropriate procedure for an appellate
     court to follow when a trial court dismisses a defendant’s pretrial
     double jeopardy challenge as frivolous. The Court asked the
     Appellate Court Procedural Rules Committee and the Criminal
     Procedural Rules Committee to evaluate the Court’s proposed
     procedural framework for possible further refinement.

     During the Committees’ discussions of the Orie case and the
     Court’s directive, in addition to considering the appellate
     procedures that should apply when a judge determines that a
     pretrial motion to dismiss on double jeopardy grounds is frivolous,
     the members also noted that there is no uniformity in how motions
     to dismiss on double jeopardy grounds currently are handled at
     the trial level. They reasoned this lack of uniformity contributes
     to the confusion with regard to challenging the dismissal of these
     motions in the appellate courts. The Committees therefore agreed
     that it would be helpful to the bench and bar if the Criminal Rules
     would be amended to provide the procedures in the court of
     common pleas when the defendant files a motion to dismiss based
     on double jeopardy grounds.

     The Committees determined the procedures governing motions to
     dismiss on double jeopardy grounds, in terms of the importance
     of protecting a defendant’s rights, of creating a record at the trial
     level for purposes of appeal and preserving all parties’ positions,
     and of ensuring the defendant understands his or her appeal
     rights, most closely compare to the procedures for a motion to
     suppress in Rule 581. Specifically, the procedures that, inter alia:

          require that the motion state specifically and with
          particularity the grounds for the motion and the facts
          supporting the motion;


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         require a hearing on the record in open court; and

         require the judge to make findings of fact and
         conclusions of law on the record at the conclusion of the
         hearing,

     also should govern the procedures when a motion to dismiss on
     double jeopardy grounds is filed.

     The proposed new procedures would be added to Rule 587 (Motion
     for Dismissal) as new paragraph (B). Paragraph (B)(1) requires
     that the motion state specifically and with particularity the basis
     for the claim of double jeopardy and the facts supporting the
     claim. This requirement also is comparable to Rule 575(A)(2)(c).

     Paragraph (B)(2) requires that there be a hearing conducted in
     open court. The Committees reasoned that a hearing on the
     record is vital to preserve the parties’ positions. As elaborated in
     the Comment, the “hearing” in this context may include taking
     testimony, taking testimony and presenting arguments, or merely
     presenting arguments as the judge determines necessary in a
     given cases.

     Paragraph (D)[sic](3) requires that the judge enter on the record
     findings of fact and conclusions of law at the conclusion of the
     hearing and issue an order granting or denying the motion.
     Paragraph (D)[sic](4) adds the requirement that if the judge
     denies the motion, the judge also must make specific findings as
     to frivolousness.     The members noted, anecdotally, that
     frequently judges will deny the motion to dismiss on double
     jeopardy grounds and not make a finding with regard to
     frivolousness 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
     another source of the confusion and of the problems with
     challenging the denial of these motions, and because the
     correct avenue of appeal in cases involving motions to
     dismiss based on double jeopardy grounds depends on
     whether there has been a finding of frivolousness, the
     proposal requires the trial judge to make a specific finding
     as to frivolousness at the time the judge decides the double
     jeopardy motion, and that there must be a record made of
     the judge’s reasons for his or her findings. Furthermore, the
     Rule 587 Comment would be revised to include a cross-reference

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       to Commonwealth v. Gains, 383 Pa. Super. 208, 217, 556 A.2d
       870, 874 (1989), to provide guidance about what constitutes a
       frivolous claim.

March 7, 2012, Criminal Procedure Rules Committee, Motion to Dismiss on

Double Jeopardy Grounds, Report at 9-11 (footnotes and headings omitted)

(emphasis added).3        This report emphasizes that as of 2013, the correct

avenue of appeal depends on the findings of the trial court.

       In response to the United States Supreme Court’s ruling in Abney v.

United     States,     431     U.S.    651     (1977),4   our   Supreme   Court   in

Commonwealth v. Brady, 508 A.2d 286 (Pa. 1986), citing the Court of

Appeals for the Fifth Circuit with apparent approval, referenced that court’s

rule designed to prevent the use of frivolous double jeopardy appeals as a

dilatory tactic. As described by the Fifth Circuit,

       The Supreme Court suggested in Abney that the problem of
       frivolous and dilatory appeals could be met through expedited
       treatment and summary procedure at the court of appeals level.
       An appropriate balance of conflicting interests should be initially
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3 I recognize that these reports are not binding, but like notes and comments
to rules, I believe the report may be cited for persuasive value, and in
particular for this case, for the history that precipitated the change to Rule
587. See Commonwealth v. Byrd, 378 A.2d 921, 922 (Pa. Super. 1977)
(although committee comments are not binding, they may be considered as
effective aids when interpreting the meaning of rules and amendments
thereto) and Commonwealth v. Reeb, 593 A.2d 853, 856 (Pa. Super. 1991)
(comments by the Supreme Court’s criminal rules committee are not binding,
although those comments may be considered as effective aids in interpreting
the meaning of the rule) (citations omitted).

4 The Abney Court found that an appeal from a pretrial order denying a motion
to dismiss an indictment on double jeopardy grounds was an exception to the
final judgment rule and was appealable as a collateral order.

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        achieved in the trial court itself by identifying frivolous claims of
        former jeopardy and preventing them from unduly disrupting the
        trial process. Henceforth, the district courts, in any denial of
        a double jeopardy motion, should make written findings
        determining whether the motion is frivolous or
        nonfrivolous. If the claim is found to be frivolous, the filing
        of a notice of appeal by the defendant shall not divest the
        district court of jurisdiction over the case. If nonfrivolous,
        of course, the trial cannot proceed until a determination is
        made of the merits of an appeal.

United States v. Dunbar, 611 F.2d 985, 988 (5th Cir.) (en banc), cert.

denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980) (citations

omitted) (emphasis added).           The Fifth Circuit’s recognition that a district

court’s findings affect appellate jurisdiction to hear double jeopardy appeals

applies with equal force here. I believe it more than coincidence that the 2013

adoption of Rule 587(B) by our Supreme Court mirrors the Fifth Circuit’s

approach to determine appellate jurisdiction.5

        Pa.R.A.P. 313 permits appeal of an interlocutory order if the order is

separable from and collateral to the main cause of action, the right involved

is too important to be the denied review, and the question presented is such

that if review is postponed until final judgment, the claim will be irreparably

lost.    I find it significant that in the requirements of this rule, there is no

precondition that the merits of the underlying matter first be determined to

be meritorious. Yet, when dealing with denial orders under Rule 587, a fourth



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5The Brady court also acknowledged that may other circuits adopted the Fifth
Circuit’s Dunbar rule. Brady, 508 A.2d at 343-44.

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condition is added before an order may be deemed collateral and immediately

appealable. The underlying motion first must be determined to have merit.

No other rule that permits appeals as of right under Rule 313 requires a

predetermination whether the motion has merit before jurisdiction vests in

this Court. This aspect of Rule 587 sets denial of double jeopardy motions

apart from other motions that may qualify as collateral.              Under the

unambiguous language of Rule 587, only the trial court may make those

necessary findings in order that we can determine whether we have

jurisdiction to hear appeals from denial of those motions.

      I also reject the Majority’s conclusion that Rule 313 and enduring

precedent pre-dating the 2013 amendments to Rule 587 control our

jurisdiction.   See Majority Opinion at 20 n. 1.      The precedent cited was

supplanted in large part by the adoption of the 2013 amendments, thus

making reliance on those cases of little value. The Majority’s rationale that

the appellate rules govern our jurisdiction and, therefore, we may overlook

procedural missteps under the rules of criminal procedure because those rules

govern only practice before trial courts, Majority Opinion at 20 n.1, is

misplaced.      Not only does the Majority fail to cite any authority for this

proposition, but as Judge Dubow cogently observes, jurisdiction derives from

our statutes and not from our rules. I believe it fairly can be said that, in this

regard, the rules are meant to implement jurisdiction, but do not in and of

themselves establish jurisdiction.


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       I likewise find reliance by the Majority on the official Notes to Rule 313

unpersuasive. According to the Majority, “The Note to Rule 313 states that

an established example of a collateral order is an order denying a pretrial

motion to dismiss ‘based on double jeopardy in which the court does not find

the motion frivolous’ . . . (citing Orie, supra and Brady, supra)” and that

“[t]he planned amendment to the official note of Rule 313 continues this

precedent[.]” Majority Opinion at 18-19.6 The Majority uses these references

to support its ultimate conclusion that the trial court’s failure to make findings

renders the denial of a motion immediately appealable.                  I respectfully

disagree. These Notes do nothing more than cite Brady and Orie for the

unremarkable       proposition     that   meritorious   motions   are    immediately

appealable and frivolous ones are not. These case references lend no support

to the Majority’s conclusion, because both cases involved situations where the

Supreme Court was reviewing a trial court’s determination that pretrial

motions were frivolous. Neither case could reference the 2013 version of Rule

587(B), and consequently could not address the issue now before this Court.

       I likewise find the Concurrence’s reliance on the Note to Pa.R.A.P. 1573

unpersuasive.      Although in effect when the trial court rendered its double

jeopardy decision, as of January 7, 2020, Rule 1573 has been repealed,

including its Note.      The rule addressed petitions for review when a court


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6The Concurrence also cites the planned amendment. The January 7, 2020
amendment is effective August 1, 2020.

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determined a double jeopardy motion to be frivolous. The repealed rule now

is subsumed in the 2020 amendments to Pa.R.A.P. 1311 that address

interlocutory appeals by permission. Double jeopardy motions deemed to be

frivolous now are included under Rule 1311(a)(3). The Official Note to Rule

1311 does not carry forward the prior Note to Rule 1573, but rather states

only that Rule 1311 now includes “interlocutory orders that found a criminal

defendant’s claim that further proceedings would cause the defendant to be

placed in double jeopardy to be frivolous.” Pa.R.A.P. Official Note (effective

August 1, 2020). If anything, a comparison between the former Note to Rule

1573 and the current Note to Rule 1311 demonstrates less emphasis on the

procedure for determining whether denial of a pretrial double jeopardy motion

is appealable. It is my position, however, that the notes to these appellate

rules do not address double jeopardy pretrial procedure, and serve only to

illustrate examples of interlocutory orders appealable as of right.

      Before concluding, I would like to offer an observation on rule

interpretation. I always found case law at variance with the plain language of

a rule a constant source of frustration and potential malpractice for

practitioners unable to rely on the plain language of a rule.       Instead, the

message we send when we create exceptions or ignore rules is that rules

cannot be relied upon and that practitioners must engage in extensive

research before relying upon the plain language of a rule. The failure to do

so is at their peril. Like our other rules of procedure, the criminal rules are to


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be construed to secure simplicity in procedure, fairness in administration, and

the elimination of unjustifiable expense and delay. Pa.R.Crim.P. 101(B). See

also Pa.R.C.P. 126, Pa.R.A.P. 105. Instead, exceptions or procedures grafted

onto rules by case law serve only as traps for malpractice for those who do

not remain vigilant on every nuanced decision that affects the interpretation

of a rule. The Majority’s abandonment of the unambiguous language of Rule

587 creates confusion and yet another instance where the plain language of a

rule cannot be taken at face value. The Majority returns us to the pretrial

practice that Rule 587(B) sought to change.

      The adoption of the 2013 amendments to Rule 587 was not meant to be

a mere formality that could be excused in the discretion of a court.        The

procedures under the 2013 amendments were meant to provide a mandatory

mechanism by which pretrial double jeopardy motions are to be decided and

a defendant properly advised of his or her appeal rights. Rule 587(B) serves

to inform this Court whether the necessary predicates for jurisdiction have

been satisfied so that a denial may be heard as collateral under Rule 313. The

Majority today once again has interjected confusion into this process and

blurred the roles between trial and appellate courts to address jurisdiction.

      I would retain jurisdiction over this appeal and remand for a brief period

for the trial court to provide us the necessary findings under Rule 587(B) so

that we may decide whether we have jurisdiction to address the merits of this

appeal. I respectfully dissent.


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     Judge Shogan and Judge Dubow join the dissenting opinion.




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