J-S22004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL DAVID VELLNER,

                            Appellant                 No. 944 MDA 2016


                 Appeal from the Order Entered May 10, 2016
           In the Court of Common Pleas of Northumberland County
              Criminal Division at No(s): CP-49-CR-0000451-2015


BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 22, 2017

       Appellant, Michael David Vellner, appeals from the order entered

May 10, 2016, denying his motion to dismiss based on double jeopardy.

After careful review, we are compelled to vacate the May 10, 2016 order and

remand this matter to the trial court for compliance with the requirements of

Pa.R.Crim.P. 587(B).

       The trial court provided the following summary of the factual and

procedural history of this case:

             [Appellant] was charged with [two counts of aggravated
       indecent assault and one count of indecent assault1] stemming
       from an alleged incident which occurred on April 4, 2015. A jury
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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3125 and 13126, respectively.
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        trial was scheduled for March 17, 2016. At the outset of the trial
        the Commonwealth played a videotape of a Pennsylvania State
        Trooper interviewing [Appellant] in which it was revealed
        [Appellant] was previously on probation.        Based on the
        inadmissible evidence of [Appellant’s] prior criminal history,
        Defense Counsel requested a mistrial which [the trial] court
        granted. Defense Counsel then filed a Motion to Dismiss based
        on Double Jeopardy. . . .

Trial Court Opinion, 9/28/16, at 1.

        The trial court denied Appellant’s motion to dismiss on double jeopardy

grounds by order entered May 10, 2016. Appellant filed a notice of appeal

on June 8, 2016. Both the trial court and Appellant complied with Pa.R.A.P.

1925.

        Appellant presents the following issue for our review:

              Did the Lower Court error [sic] when it denied the
        Appellant’s Motion to Dismiss the Information because the
        prosecution is barred by a former prosecution under both United
        States and Pennsylvania Constitutions, for the reason that the
        Commonwealth of Pennsylvania caused a mistrial in the first
        case.

Appellant’s Brief at 7.

        Before turning to the merits of Appellant’s argument, we must

determine if we may exercise jurisdiction over this appeal.         Initially, we

acknowledge     that   issues of   jurisdiction   may be   raised   sua sponte.

Commonwealth v. Taylor, 120 A.3d 1017, 1021 (Pa. Super. 2015).

Moreover, “[w]hen considering the proper exercise of appellate jurisdiction,

our review is de novo, and the scope of review is plenary.” Id. at 1021 n.8

(citation omitted).


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     Here, Appellant claims this Court has jurisdiction pursuant to Pa.R.A.P.

313. Appellant’s Brief at 1. Rule 313 provides in part:

     A collateral order is an order separable from and collateral to the
     main cause of action where the right involved is too important to
     be denied review and the question presented is such that if
     review is postponed until final judgment in the case, the claim
     will be irreparably lost.

Pa.R.A.P. 313(b). The comment to Rule 313 specifically cites as an example

of a collateral order an order denying a pretrial motion to dismiss on double

jeopardy grounds.    Id. at cmt.    (“Examples of collateral orders include

orders denying pre-trial motions to dismiss based on double jeopardy in

which the court does not find the motion frivolous, Commonwealth v.

Brady, 510 Pa. 336, 508 A.2d 286, 289-91 (1986).”).             “Indeed, our

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.”   Taylor, 120 A.3d at 1021-1022

(citing Commonwealth v. Brady, 508 A.2d 286, 291 (Pa. 1986)).

     In 2013, the Pennsylvania Rules of Criminal Procedure were amended

to codify the common law framework for motions to dismiss on double

jeopardy grounds. In particular, Rule 587(B) was added to govern pretrial

double jeopardy motions. Specifically, Rule 587(B) provides as follows:

     (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.




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      (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(B).

      In Taylor, this Court had the opportunity to interpret Rule 587(B) in

the context of a trial court’s failure to fully comply with the rule. This Court

explained:

      To establish whether a motion to dismiss on double jeopardy
      grounds qualifies as a collateral order, trial courts must now,
      inter alia, satisfy Rule 587(B)(3), (4), (5), and (6). Subsection
      (B)(3) requires the trial court, following a hearing, to enter on
      the record a statement of findings of fact and conclusions of law
      and its disposition of the double jeopardy motion. Subsection
      (B)(4) requires the trial court to render a specific finding on
      frivolousness in the event the court denies the double jeopardy
      motion. Subsection (B)(5) requires the trial court, if it finds
      frivolous the double jeopardy motion, to inform on the record a
      defendant of his or her right to petition for review under
      Pa.R.A.P. 1573 within 30 days of the order denying the motion.
      Subsection (B)(6) requires the court to advise a defendant of his
      immediate right to a collateral appeal if the court does not find
      the double jeopardy motion to be frivolous.

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Taylor, 120 A.3d at 1022-1023 (footnote omitted).

      In Taylor, the trial court denied the appellant’s motion to dismiss on

double jeopardy grounds but failed to enter on the record a statement of

findings of fact and conclusions of law.          Further, it did not make a

determination of whether the defendant’s motion to dismiss on double

jeopardy grounds was frivolous.     Id.   Regarding the trial court’s failure to

fully comply with Rule 587(B), this Court held:

      [O]ur review of the record, in particular the [motion to dismiss
      on double jeopardy grounds] argument transcript, reveals the
      trial court failed to comply with Rule 587(B)(3) th[r]ough (6).
      Specifically, as required under Rule 587(B)(3), following oral
      argument, the trial court failed to enter on the record a
      statement of findings of fact and conclusions of law. Moreover,
      in denying [a]ppellant’s motion to dismiss on double jeopardy
      grounds, the trial court also failed to render a specific finding on
      frivolousness, as required under Rule 587(B)(4). The trial court
      did not find whether [a]ppellant’s motion to dismiss was or was
      not frivolous. Given the trial court’s failure to comply with Rule
      587[(B)], we are unable to decide whether we may exercise
      jurisdiction over this appeal. Consequently, we remand this
      matter to the trial court for compliance with Rule 587[(B)] and
      preparation of a supplemental Rule 1925(a) opinion within sixty
      days of the date of this opinion.

Id. (footnotes omitted).

      A hearing on Appellant’s motion to dismiss was held on May 6, 2016.

A review of the transcript reflects that after testimony was presented on the

motion, the assistant district attorney requested that the court find that the

motion was frivolous and therefore, allow the parties to schedule a

subsequent trial. N.T., 5/6/16, at 35. The court indicated that after review

of the testimony and cited case law, it would issue a determination within

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“the next week or so.”           Id.2     The hearing concluded with no further

discussion on this issue. Id. at 35-36.

       Accordingly, in the case sub judice, the trial court did not satisfy the

requirements of Rule 587(B). The hearing transcript does not demonstrate

that the trial court complied with Rule 587(B)(3), which requires, inter alia,

the court to enter on the record a statement of findings of fact and

conclusions of law.         Following the argument, the trial court did not

contemporaneously place on the record such a statement.3 N.T., 5/6/16, at

35-36.     Further, we could identify no specific finding on the record in

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2
  We further note that in the order denying Appellant’s motion to dismiss,
the trial court made no finding regarding the frivolousness of this claim.
Order, 5/10/16, at 1.
3
 In Taylor, we took note of the final report on Rule 587(B) issued by the
Criminal Procedure Rules Committee, which states:

       The members of the Criminal Committee noted, anecdotally, that
       frequently judges will deny the motion to dismiss on double
       jeopardy grounds without making a finding with regard to
       frivolousness unless or 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 a source of confusion and that they cause problems for
       defendants and appellate courts when such motions are denied,
       the amendments require the trial judge to make a specific
       finding as to frivolousness at the time the judge decides
       the double jeopardy motion, and further require a trial
       judge to make a contemporaneous record of the judge’s
       reasons for his or her findings.

Taylor, 120 A.3d at 1022 n.10 (quoting Motion to Dismiss Based on Double
Jeopardy Grounds Final Report, 6/4/2013, at 3) (emphasis added).



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accordance with Rule 587(B)(4) regarding whether Appellant’s motion is

frivolous, and this finding directly implicates our jurisdiction. See Pa.R.A.P.

313, note (“Examples of collateral orders include orders denying pre-trial

motions to dismiss based on double jeopardy in which the court does not

find the motion frivolous; if the trial court finds the motion frivolous, the

defendant may secure review only by first filing a petition for review under

Pa.R.A.P. 1573.”) (internal citation omitted).   Without this finding, we are

unable to determine if we may exercise jurisdiction.4 Accordingly, we vacate

the May 10, 2016 order and remand this matter to the trial court for

compliance with the requirements of Pa.R.Crim.P. 587(B).

       Order vacated. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




____________________________________________


4
   The record also does not demonstrate that Appellant was advised by the
trial court of his appeal rights as required by Pa.R.Crim.P. 587(b)(5) or (6).



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