J-E04004-17

                                2020 PA Super 107

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 EMILY JOY GROSS                           :
                                           :
                    Appellant              :    No. 375 EDA 2016

                  Appeal from the Order January 15, 2016
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): 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.

CONCURRING OPINION BY OLSON, J.:                       FILED APRIL 29, 2020

      I join the learned majority’s opinion in full. However, I write separately

to address some concerns that the learned dissents have ably expressed.

      The learned dissents view compliance with Pennsylvania Rule of Criminal

Procedure 587 as a prerequisite for appellate jurisdiction. According to the

dissenters, Rule 587 implicates our jurisdiction because the trial court’s denial

of a defendant’s pre-trial double jeopardy motion only qualifies as a collateral

order where “a trial court [makes a] factual finding[] that [the] double

jeopardy motion is not frivolous.” Judge Stabile’s Dissenting Opinion at *6

(emphasis added); see also Judge Dubow’s Dissenting Opinion at *6 (“[i]f

the trial court finds the [defendant’s double jeopardy] motion to have merit,

a defendant may appeal pursuant to Pa.R.A.P. 313”). From this starting point,

the dissenters posit that, since our jurisdiction is not perfected until the trial

court determines that the double jeopardy motion is “not frivolous,” and since
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Rule 587 provides the mechanism by which the trial court determines whether

the motion is or is not frivolous, compliance with Pennsylvania Rule of Criminal

Procedure 587 is a precondition for appellate jurisdiction.

      However, and respectfully, I believe that the dissenters’ starting point

is erroneous, as it is contrary to our Supreme Court’s holdings, and that this

faulty starting point corrupts their entire analysis.

      In Commonwealth v. Orie, the Pennsylvania Supreme Court examined

the historical derivation and the current status of a defendant’s right to appeal

the denial of his or her pre-trial motion to dismiss on double jeopardy grounds.

As the Orie Court explained:

        Generally, criminal defendants have a right to appeal a trial
        court's pre-trial double jeopardy determination under
        Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977)
        (plurality opinion). While Bolden was a plurality decision, a
        per curiam decision by the [Pennsylvania Supreme] Court
        shortly thereafter made clear that a [Supreme] Court
        majority agreed with the important narrow proposition that
        “pretrial orders denying double jeopardy claims are final
        orders for purposes of appeal.” Commonwealth v.
        Haefner, 373 A.2d 1094, 1095 (Pa. 1977) (per curiam)
        (emphasis added).

        Eight years later, in [Commonwealth v. Brady, 508 A.2d
        286 (Pa. 1986), the Pennsylvania Supreme] Court considered
        the question of whether a Bolden of-right appeal should be
        permitted to go forward when the trial court has concluded
        that the double jeopardy motion is frivolous. The Brady
        Court held that where the trial court makes a written
        statement finding that the pre-trial double jeopardy challenge
        is frivolous, a Bolden-style interlocutory appeal will not be
        permitted because it would only serve to delay prosecution.

        In reaching this conclusion, the Brady Court noted that
        precluding Bolden appeals and automatic stays of retrial

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        upon a written finding that the claim is frivolous still affords
        the defendant “the opportunity to initially assert his claim
        before a tribunal and retrial is not permitted unless the claim
        is shown to the satisfaction of that court to be frivolous.” …

        [T]he Brady Court [also] envisioned a preliminary avenue for
        limited appellate review of the trial court's written finding that
        a defendant's double jeopardy challenge was frivolous via a
        stand-alone stay procedure, which would be unrelated to a
        pending appeal as of right.

Commonwealth v. Orie, 22 A.3d 1021, 1024-1025 (Pa. 2011).

     Thus, as the Orie Court explained, an order denying a pre-trial motion

to dismiss on double jeopardy grounds is, as a general matter, immediately

appealable. An exception to this general rule of appealability exists if, but

only if, the trial court “makes a written statement finding that the pre-trial

double jeopardy challenge is frivolous.” Id.; see also Brady, 508 A.2d at

291 (“an 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”).

     Indeed, the Pennsylvania Supreme Court recently adopted and

published an amendment to the official note to Pennsylvania Rule of Appellate

Procedure 313, governing collateral orders, which will become effective

August 1, 2020. The amended official note reads:

        Pennsylvania appellate courts have found a number of
        classes of orders to fit the collateral order definition. . . .
        Examples include . . . an order denying a pre-trial motion
        to dismiss on double jeopardy grounds if the trial court
        does not also make a finding that the motion to dismiss
        is frivolous. See Commonwealth v. Brady, 508 A.2d 286,

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        289–91 (Pa. 1986) (allowing an immediate appeal from
        denial of double jeopardy claim under collateral order
        doctrine where trial court does not make a finding of
        frivolousness); Commonwealth v. Orie, 22 A.3d 1021 (Pa.
        2011). An order denying a pre-trial motion to dismiss
        on double jeopardy grounds that also finds that the
        motion to dismiss is frivolous is not appealable as of
        right as a collateral order, but may be appealable by
        permission under Pa.R.A.P. 1311(a)(3).

Pa.R.A.P. 313 note (effective August 1, 2020) (emphasis added).

      The amended note clarifies that an order denying a pre-trial motion to

dismiss on double jeopardy grounds is immediately appealable as a collateral

order unless the trial court makes a written finding that the motion to dismiss

is frivolous. See id.

      Finally, the note to Pennsylvania Rule of Appellate Procedure 1573,

which is effective until August 1, 2020, repeats this principle of law, by stating:

“[i]f a trial court denies [a motion to dismiss on double jeopardy grounds]

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.” Pa.R.A.P. 1573 note (emphasis added).

      Therefore, I believe that the dissenters are incorrect in concluding that

the denial of a double jeopardy motion is not appealable under Rule 313 unless

the “trial court [makes a] factual finding[] that [the] double jeopardy motion

is not frivolous.” Rather, under our Supreme Court’s decisions in Bolden,

Haefner, Brady, and Orie and, under Pennsylvania Rule of Appellate

Procedure 313, the trial court’s denial of a pre-trial double jeopardy motion is




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immediately appealable as a collateral order unless the trial court determines

that the motion is frivolous.

       When starting with the correct viewpoint – the viewpoint required by

our Supreme Court’s precedent, the amended note to Rule 313, and the note

to Rule 1573 – it is apparent that compliance with Pennsylvania Rule of

Criminal Procedure 587 is not a precondition to our jurisdiction, as our

jurisdiction is perfected upon appeal – unless the trial court makes a written

finding that the motion is frivolous.

       Contrary to Judge Stabile’s statement, this jurisdictional issue does not

make compliance with Rule 587 “optional” with the trial court. See Judge

Stabile’s Dissenting Opinion at *6.            To be sure, Rule 587 delineates the

mandatory procedure by which the trial court must hear and decide a double

jeopardy motion. If a trial court violates Rule 587, the parties are free to raise

this issue on appeal. It is my belief that the trial court violated Rule 587 in

this case.1 However, the parties in this case did not assert any claim that the
____________________________________________


1In my view, the trial court failed to comply with the terms of Rule 587 in
denying Appellant’s motion to dismiss on the basis of double jeopardy. Rule
587 states 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



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____________________________________________


              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 the 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)(1)-(6) (emphasis added). Pursuant to this rule, a
hearing on the record is mandatory when a defendant files a motion to dismiss
on the basis of double jeopardy. At the conclusion of the hearing, the trial
court is required to make a specific finding on the record as to whether the
motion is granted or denied. If it is denied, the trial court must make an
express finding on the record as to whether the motion is frivolous. The trial
court’s determination of whether the motion is frivolous is mandatory as the
trial court must then advise the defendant on the record as to his or her
appellate rights. If the motion is deemed to be frivolous, the trial court shall
advise the defendant that he or she may file a petition for review. If the
motion is not deemed to be frivolous, the trial court shall advise the defendant
that the order is deemed to be a collateral order and he or she may seek an
immediate appeal.

It is my view that, in this case, the trial court erred in not holding a hearing
on the record, in failing to make the express findings on the record as to
frivolousness and in failing to advise Appellant of her appellate rights.
Accordingly, I believe that Appellant could have appealed on the basis that
the trial court failed to follow the dictates of Rule 587. However, Appellant



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trial court violated Rule 587 and the existence of a procedural mistake by the

trial court cannot, in and of itself, divest this Court of subject matter

jurisdiction where our jurisdiction is otherwise properly established.       C.f.

Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007) (“[t]he existence

of a procedural mistake in and of itself . . . does not divest the trial court of

subject matter jurisdiction”).

       Pennsylvania Rule of Appellate Procedure 313 and our Supreme Court’s

precedent define the appealability of the order in this case – and, as the

majority correctly holds, the order is appealable because the trial court denied

Appellant’s pre-trial motion to dismiss on double jeopardy grounds and the

trial court did not make a written finding that the motion was frivolous. Orie,

22 A.3d at 1024-1025; Pa.R.A.P. 313; see also Bolden, 373 A.2d at 105

(plurality); Haefner, 373 A.2d at 1095 (per curiam); Brady, 508 A.2d at 291.

Pennsylvania Rule of Criminal Procedure 587 is inapplicable to the issue of

____________________________________________


did not raise this issue on appeal and this procedural rule violation is not an
issue which we may raise sua sponte. See Commonwealth v. Colavita, 993
A.2d 874, 891 (Pa. 2010) (holding that, generally, “[w]here the parties fail to
preserve an issue for appeal, the Superior Court may not address that issue
sua sponte”) (quotations and citations omitted); see also In re Estate of
Tscherneff, 203 A.3d 1020, 1027 (Pa. Super. 2019) (noting that there are
only “a few discrete, limited non-jurisdictional issues that courts may raise
sua sponte”).

Although the trial court failed to follow Rule 587, such failure does not deprive
this Court of jurisdiction. Instead, jurisdiction is conferred upon this Court as
the order entered was a collateral order pursuant to Pennsylvania Rule of
Appellate Procedure 313 and our Supreme Court’s holdings in Bolden,
Haefner, Brady, and Orie.


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whether this Court has jurisdiction in the case at bar and should not serve as

the touchstone for any jurisdictional analysis here.

      President Judge Emeritus Bender and Judge Bowes join the concurring

opinion.




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