J-S59008-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                  1   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                      v.

JOHNNY JENKINS,

                           Appellant                   No. 2015 EDA 2015


                  Appeal from the Order Entered May 27, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP- 51 -CR- 0013768 -2012

BEFORE:     BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED OCTOBER 24, 2016

        Appellant, Johnny Jenkins, appeals from the trial court's order denying

his motion to quash based on double jeopardy. After careful review, we are

compelled to vacate the May 27, 2015 order and remand this matter to the

trial court for it to comply with the requirements of Pa.R.Crim.P. 587(B).

        We briefly set forth the facts and procedural history of this matter.

The trial court summarized the factual background as follows:
              The allegations are that on May 24, 2012, the complainant
        took his car[] to be serviced at a garage and left the key with
        [Appellant]. When he returned to pick up the car, it was gone
        and a witness said [Appellant] had taken it.       The car was
        recovered unoccupied on June 9, 2012. It was towed to the
        Major Crimes Auto Squad lot, where it was stored. The vehicle
        was last seen on the lot on June 12, 2012, and was reported
        stolen again on June 14, 2012. [Appellant] was stopped in the


*   Former Justice specially assigned to the Superior Court.
J-S59008-16


      vehicle on June 16, 2012 and arrested. [Appellant] gave a
      statement admitting to stealing the car the first time from the
      complainant, then again from the police impound lot.
Trial Court Opinion (TCO), 11/25/15, at 4 (footnote and internal citation

omitted).

      On April 29, 2015, Appellant pled               guilty to unauthorized use of an

automobile in the case involving the vehicle theft from the impound lot in

June 2012.      Id. at 2 -4.    The case involving the original May 24, 2012 vehicle

theft was scheduled for trial on May 27, 2015.              Id.   at 3. On May 27, 2015,

Appellant filed   a   motion to quash based on double jeopardy, arguing that the

above -stated thefts represent an ongoing or common crime, and that the

Commonwealth's          failure   to     join Appellant's     cases        constitutes double

jeopardy. See id.; N.T. Hearing, 5/27/15, at 3 -4. Argument on Appellant's

motion to quash occurred that same day, and the trial court denied it. TCO

at 3. Further, the trial       - scheduled to take place that day- was continued
because     a    witness       for the    Commonwealth        failed       to   appear.     Id.

Subsequently, on June 26, 2015, Appellant filed                        a    notice of appeal

challenging the trial court's order denying his motion to quash based on

double jeopardy.       Id.

      In his appeal, Appellant raises         a   single issue for our review:
      Did the Honorable Judge ... commit legal error when the                     [c]ourt
      denied [Appellant's] Motion to Bar Prosecution Because of
      Double Jeopardy, where the Commonwealth failed to engage in
      compulsory joinder?
Appellant's Brief at 3.



                                             -2
J-S59008-16



      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)

(citation omitted).   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).          Here, Appellant claims that

this Court has jurisdiction pursuant to Pa.R.A.P. 311, which pertains to

interlocutory appeals as of right.         See Appellant's Brief at     1.      However,

Appellant does not address how an appeal may be taken as of right from the

trial court's order denying his motion to quash, and we cannot discern how

Rule 311 is applicable to the case at bar.        Further, this Court has previously

determined that it does not have jurisdiction, pursuant to Rule 311, over an

appeal from an order denying           a   pretrial motion to dismiss on double

jeopardy grounds. Taylor, 120 A.3d at 1021. As such, we cannot conclude

that we have jurisdiction on this basis.
      Notwithstanding, we may be able to exert jurisdiction over this appeal

to the extent it qualifies as   a   collateral order under Pa.R.A.P. 313. See id.

Pennsylvania Rule of Appellate Procedure 313 states:

      (a)   General rule. An appeal may be taken as of right from a
            collateral order of an administrative agency or lower court.
      (b)   Definition.   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

                                           -3-
J-S59008-16


             final judgment in the case, the claim will be irreparably
             lost.
        Note:   Rule 313 is   acodification of existing case law with
        respect to collateral orders. See Pugar v. Greco, 483 Pa.
        68, 73, 394 A.2d 542, 545 (1978) (quoting Cohen v.
        Beneficial Industrial Loan Corp., 337 U. S. 541
        (1949)[)].  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) (allowing an immediate
        appeal from denial of double jeopardy claim under
        collateral order doctrine where trial court does not make a
        finding of frivolousness); 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. See Commonwealth v. Orie, 22 A.3d
        1021 (Pa. 2011)....

        Ifan order falls under Rule 313, an immediate appeal may
        be taken as of right simply by filing a notice of appeal.
        The procedures set forth in Rules 341(c) and 1311 do not
        apply under Rule 313.
Pa.R.A.P. 313 (emphasis added).

     Furthermore, this Court has explained:
     To establish whether a motion to dismiss on double jeopardy
     grounds qualifies as a collateral order, trial courts must now,
     inter alia, satisfy [Pa.R.Crim.P.] 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.
Taylor, 120 A.3d at 1022 -23 (footnote omitted).

                                    -4
J-S59008-16


      In the case sub judice, the trial court did not satisfy the requirements

of Rule 587(B).       Our   reading of the argument transcript          does   not

demonstrate that the trial court complied with Rule 587(B)(3), which

requires, inter alla, 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.' See N.T.
Hearing at 7.   Further, we could identify no specific finding on the record in

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

frivolous, and this finding directly implicates our jurisdiction. See Note to

Pa.R.A.P. 313 ( "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


' 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).


                                     -5
J-S59008-16



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 exert jurisdiction.2      Accordingly, we vacate

the May 27, 2015 order and remand this matter to the trial court for it to

comply with the requirements of Rule 587(B).

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




J:seph    Seletyn,
         D.
Prothonotary


Date: 10/24/2016




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


                                     -6
