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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

CONCURRING MEMORANDUM BY OLSON, J.: FILED: MAY 2, 2019

      I join the learned majority’s memorandum and acknowledge that,

pursuant to Commonwealth v. Taylor, 120 A.3d 1017 (Pa. Super. 2015),

we must retain panel jurisdiction in this case. Nevertheless, I write separately

because – as to the issue of retaining panel jurisdiction – I believe that Taylor

was incorrectly decided.

      As the majority ably explains:

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



* Retired Senior Judge assigned to the Superior Court.
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Majority Memorandum at *4 (citations omitted).

      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).1

Therefore, in both cases, this Court was required to remand 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 are bound by Taylor, the majority properly does the

same. However, I do not believe that the Taylor Court was correct to retain

panel jurisdiction over the case.

      In accordance with Taylor, 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




1
 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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dismiss was frivolous, we do not yet know if this Court has appellate

jurisdiction. Under Rule 587(B)(5), if the trial court finds that the motion was

frivolous, the order is interlocutory and not immediately appealable. Instead,

Appellant must petition this Court for review under Rule 1573 of the Rules of

Appellate Procedure. On the other hand, if the trial court denies the motion

but does not find that it was frivolous, then it is a collateral order and Appellant

has a right to an immediate appeal under Rule 313 of the Rules of Appellate

Procedure.

      By retaining panel jurisdiction in this case, I am not sure that the

litigants will know what to do once the trial court renders a decision regarding

frivolousness.   If, on remand, the trial court determines that Appellant’s

motion to dismiss was frivolous, we must quash this 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, Appellant might incorrectly believe that he does not need

to file a “petition for review” of the frivolousness determination, as we

specifically told him that we were retaining panel jurisdiction over the entire

appeal. However, if he 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

will have missed his opportunity for this Court to consider the frivolousness




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issue before he is subjected to a second trial.2 I believe that it is much more

appropriate for us to vacate the trial court’s order denying Appellant’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, Appellant may

either file a petition for review (if the trial court finds the motion was

frivolous), or file an immediate 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 the case. Pursuant

to Taylor, since the trial court did not make an express finding as to whether




2
 I would note that, even if a petition for review is not filed or, if filed not
granted, a defendant does not waive his 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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Appellant’s motion to dismiss was frivolous, we do not know if this Court has

jurisdiction over the case. And, 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 the appeal.       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.

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

      In the case at bar, 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




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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 this case and those like it. Then, if the trial

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

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

determines that the motion was frivolous, the defendant can file a petition for

review of the frivolousness determination. Nonetheless, since Taylor binds

us, I join the majority memorandum.




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