J-S57035-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
DAVID DWAYNE BROOKS,                      :
                                          :
                 Appellant                :     No. 91 WDA 2016

                   Appeal from the Order January 11, 2016
              in the Court of Common Pleas of Fayette County,
            Criminal Division, at No(s): CP-26-CR-0000979-2015

BEFORE:     FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 07, 2016

      David Dwayne Brooks (Appellant) appeals from the January 11, 2016

order which denied his motion to dismiss based upon double jeopardy. Upon

review, we remand the matter to the trial court for proceedings consistent

with this memorandum.

      The trial court set forth the relevant factual background of this case as

follows.

            [Appellant] was charged with robbing Samantha Karfelt
      [Victim], an acquaintance of his [who] was employed as an
      exotic dancer. She returned home from work in the early
      morning hours with an amount of cash that she was unable to
      specifically quantify, but which she estimated as being well over
      $[200.00].      [Appellant] approached her with his identity
      concealed and while pointing a handgun at her head, pushed her
      back into her car and said “Sam, give me the money.” She
      complied, but recognized his voice, and as he walked away with
      her money, she asked him why he did this to her. He made
      some statement about needing the money to replace someone’s


*Retired Senior Judge assigned to the Superior Court.
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        flat tires, then hugged [V]ictim and said words to the effect that
        they were still friends and everything was all right.

Trial Court Opinion (TCO), 4/18/2016, at 1-2.

        Appellant was charged with theft, robbery, simple assault, and

recklessly endangering another person. Following a jury trial, Appellant was

convicted of theft and sentenced to probation. As to the remaining charges,

the trial court found that the jury was “hopelessly deadlocked” and declared

a mistrial. Id. at 1. The trial court found manifest necessity in declaring a

mistrial, citing that

        the jury had difficulty resolving the issues, convicted the
        [Appellant] only of the theft, with the amount stolen
        “undetermined.” The jury advised [the trial court] that they
        were unable to resolve the other charges and that no additional
        time or instruction by the [trial court] would allow them to do so.

Id. at 2.

        On January 5, 2016, following the trial court’s declaration, Appellant

filed a motion to dismiss, arguing that prosecuting Appellant on the

remaining charges was barred by double jeopardy.          The trial court denied

Appellant’s motion. This appeal followed.1      On appeal, Appellant challenges

the trial court’s denial of his motion. Appellant’s Brief at 7.

        Before addressing the merits of the issue raised by Appellant, we must

first determine if we have jurisdiction over this appeal.         “Jurisdictional

questions are non-waivable and not only may be raised by [this Court] sua


1
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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sponte … but must be.” Commonwealth v. Boerner, 422 A.2d 583, 588

(Pa. Super. 1980) (citations removed).     Our Supreme Court has provided

guidance when addressing an order denying a motion to dismiss based on

double jeopardy.

           Generally, criminal defendants have a right to appeal a
     trial court’s pre-trial double jeopardy determination under
     Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977)
     (plurality opinion). While Bolden was a plurality decision, a per
     curiam decision by the Court shortly thereafter made clear that a
     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,
     473 Pa. 154, 373 A.2d 1094, 1095 (1977) (per curiam)
     (emphasis added).

            Eight years later, in [Commonwealth v. Brady, 508 A.2d
     289 (Pa. 2011) our 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. 508 A.2d at 291.

Commonwealth v. Orie, 22 A.3d 1021, 1024-25 (Pa. 2011).

     Pa.R.C.P. 587(B) governs double jeopardy motions.

     (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.




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      (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.


This Court has interpreted Rule 587 governing double jeopardy motions and

the implications it has on our jurisdiction.

      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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Commonwealth v. Taylor, 120 A.3d 1017, 1022–23 (Pa. Super. 2015)

(footnotes removed).

      In reviewing the record, it appears Appellant’s motion to dismiss was

denied without a hearing.    This conclusion is based upon (1) the fact that

this Court has not received a transcript, nor has the trial court or Appellant

cited to one;2 (2) the trial court’s Pa.R.A.P. 1925 opinion states that it is

unaware and therefore cannot speculate if there are any additional

supporting arguments Appellant might seek to raise other than what was

included “in the motion [to dismiss]” and “concise statement,” TCO,

4/18/2016, at 3; and (3) the record contains no findings of fact and

conclusions of law regarding the motion nor does the trial court state a

specific finding of frivolousness, as required by Rule 587(B)(3) and (4).

      Because this vital information is missing, we are unable to determine if

we have jurisdiction over this appeal. Due to the deficiencies in the record,

we remand this matter to the trial court to conduct a hearing on the motion

and comply with all the requirements set forth in Rule 587. Conversely, if a

hearing has already taken place, and complied with the rule, this Court shall

receive a certified copy of the transcript. The trial court will also prepare a

supplemental Rule 1925(a) opinion.      The foregoing should be completed




2
  The Commonwealth filed a letter informing this Court it would rely on the
trial court’s opinion in lieu of submitting a brief.


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within sixty days of the date of this memorandum.         Upon the filing of a

supplemental opinion, the certified record is to be returned to this Court.

      Case remanded. Panel Jurisdiction retained.




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