J-S02010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
NYJEE JEFFERSON                         :
                                        :
                  Appellant             :   No. 1326 EDA 2017

                   Appeal from the Order March 28, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012233-2015,
            CP-51-CR-0012234-2015, CP-51-CR-0012235-2015


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY BOWES, J.:                               FILED MAY 21, 2018

      Nyjee Jefferson files this interlocutory appeal from the order denying

his motion for relief pursuant to the compulsory joinder statute, 18 Pa.C.S. §

110. We remand with instructions.

      On December 3, 2015, a joint preliminary hearing was held on the

three cases at issue in this appeal. Briefly, the testimony established that

on October 19, 2015, a civilian observed Appellant and another individual in

the backyard of a home located at 819 E. Rittenhouse Street. The civilian,

who lived in the neighborhood and knew the homeowner, did not recognize

the two men. After a brief conversation, Appellant and the other individual

entered a vehicle and left. The civilian called 911 to report the incident and

supplied the license plate.   For purposes of the preliminary hearing, the

parties stipulated that the homeowner did not give Appellant permission to


* Retired Senior Judge Assigned to the Superior Court.
J-S02010-18



enter the home and that there were pry marks along the metal frame of the

door.    Appellant was thereafter charged with attempted burglary, criminal

mischief, and conspiracy.

        Next, the Commonwealth called a resident of 7215 Mansfield Avenue,

who testified that on October 19, 2015, at approximately 5:30 p.m., he saw

and heard Appellant and another man attempting to break into his home.1

The resident saw his basement door open, causing him to run outside to flag

down a police officer.       After finding an officer, he jogged back home and

observed Appellant running across the awnings of his home as well as

nearby buildings. As a result, Appellant was charged with burglary, criminal

trespass, criminal mischief, possession of an instrument of crime, and

conspiracy.

        Finally, the parties stipulated for purposes of the preliminary hearing

that Officer Joseph Campbell checked the license plate of a black SUV that

was parked in the driveway of the Mansfield Avenue residence. That vehicle

had been reported stolen on or about October 14, 2015.            As a result,

Appellant was charged with receipt of stolen property, unauthorized use of a

vehicle, and conspiracy.




____________________________________________


1 According to Appellant’s brief, this property was approximately six blocks
from 819 E. Rittenhouse Street. The Commonwealth’s brief disagrees, and
states that it was almost two miles.



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        While these charges were awaiting trial, Appellant was additionally

charged at six separate dockets with one count of criminal mischief at each

case.    The charges stemmed from the aforementioned flight from 7215

Mansfield Avenue, which resulted in Appellant damaging six other awnings.

Appellant pleaded guilty to all six cases.      The Commonwealth offered the

following summary:

        [T]he Commonwealth’s evidence would show that on or about
        October 19th of 2015 officers responded to a burglary in
        progress. When they arrived, they observed the defendant
        coming out of a second floor window. He attempted to evade
        the police and in so doing ran on the awnings of several row
        houses to avoid those police apprehension [sic].          He was
        apprehended, but in the process of fleeing, he damaged no less
        than six awnings of six different individuals amounting to several
        hundred if not thousands of dollars in damage.

N.T. Plea, 9/9/16, at 12. Appellant was sentenced to concurrent terms of

eighteen months probation at each docket.

        On March 8, 2017, Appellant filed a motion at these three dockets,

seeking to bar prosecution of all charges pursuant to the compulsory joinder

statute, which states in pertinent part:

        Although a prosecution is for a violation of a different provision
        of the statutes than a former prosecution or is based on different
        facts, it is barred by such former prosecution under the following
        circumstances:

        (1) The former prosecution resulted in an acquittal or in a
        conviction as defined in section 109 of this title (relating to when
        prosecution barred by former prosecution for the same offense)
        and the subsequent prosecution is for:

              (i) any offense of which the defendant could have
              been convicted on the first prosecution;

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           (ii) any offense based on the same conduct or arising
           from the same criminal episode, if such offense was
           known to the appropriate prosecuting officer at the
           time of the commencement of the first trial and
           occurred within the same judicial district as the
           former prosecution unless the court ordered a
           separate trial of the charge of such offense; or

           (iii) the same conduct, unless:

                 (A) the offense of which the defendant
                 was formerly convicted or acquitted and
                 the offense for which he is subsequently
                 prosecuted each requires proof of a fact
                 not required by the other and the law
                 defining each of such offenses is
                 intended to prevent a substantially
                 different harm or evil; or

                 (B) the second offense was              not
                 consummated when the former            trial
                 began.

18 Pa.C.S. § 110(1).

     Appellant   averred   that   prosecution   was   barred    pursuant   to   §

110(1)(ii), in that all three crimes arose from the same criminal episode as

the flight that resulted in the six criminal mischief charges. The trial court

granted partial relief.    Particularly, the trial court agreed that the

Commonwealth could not proceed on the criminal mischief charge for the

damaged awning at 7215 Mansfield Avenue. “So I would grant your motion

with respect to any criminal mischief claim . . . and any damage claim to the




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outside of the property.” N.T. Motion to Dismiss, 3/28/17, at 8. The motion

was denied in all other respects.2

       Appellant immediately announced that he was “entitled to take an

interlocutory appeal,” to which the trial court stated, “So you – make your

appeal.” Id. at 11. Appellant did so and the trial court issued an opinion in

response, which addressed the substantive merits of Appellant’s compulsory

joinder argument. Appellant raises the following claim for our review:

       Did the lower court err in denying defendant's Motion to Bar
       Prosecution on Double Jeopardy Grounds and Pursuant to 18
       Pa.C.S. § 110 where defendant had previously entered a guilty
       plea to criminal conduct arising from the same conduct and
       criminal episode?

Appellant’s brief at 3.

       We agree with the Commonwealth that we lack jurisdiction to entertain

this   interlocutory    appeal     and    that   we   must   remand   pursuant   to

Commonwealth v. Diggs, 172 A.3d 661 (Pa.Super. 2017). In Diggs, we

addressed our jurisdiction to hear interlocutory appeals from orders

disposing of motions raising a § 110 claim.             We held that Pa.R.Crim.P.

____________________________________________


2  The Commonwealth states that it “will not prosecute defendant in
connection with the additional burglary he committed on Mansfield Avenue
just before damaging the awnings.” Commonwealth’s brief at 6. However,
the Commonwealth does not take a position on whether the trial court
erroneously failed to grant that relief, and in fact argued at the hearing on
the motion to dismiss that it could proceed on the Mansfield Avenue burglary
charges. It is unclear if the Commonwealth’s statement of its intent to
withdraw charges is based on a reassessment of the applicable legal
principles, or whether some other factor has led to that decision.



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587(B), which governs motions raising double jeopardy claims, equally

applies to claims seeking relief under § 110. “As Section 110 ‘embodies the

same basic purposes as those underlying the double jeopardy clauses, the

interlocutory appealability of double jeopardy claims has been applied to

claims based on Section 110.’”     Id. at 664 (quoting Commonwealth v.

Bracalielly, 658 A.2d 755, 759-60 (Pa. 1995)).         Diggs quoted a case

discussing a motion to dismiss on constitutional double jeopardy grounds,

for the following:

      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.

Id.   (quoting   Commonwealth      v. Taylor,    120   A.3d   1017,   1022-23

(Pa.Super. 2015)).

      Diggs extended those requirements to motions arising under § 110.

As in Diggs, the trial court herein failed to, inter alia, render a specific

finding of frivolousness when it denied the motion to dismiss. Those failures

preclude this Court from exercising its jurisdiction to address the merits of


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the appeal. “Without the requirements of Rule 587(B) having been met . . .

we too are unable to determine whether we may exercise jurisdiction over

this appeal.”     Id. at 664.      We thus agree with the Commonwealth that,

consistent with Diggs, we are constrained to vacate the order, and remand

for proper compliance with Rule 587.3

       Order vacated.      Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:5/21/18




____________________________________________


3 Since the Commonwealth has indicated that it will withdraw the charges
respecting the Mansfield Avenue burglary, our disposition is without
prejudice to Appellant’s ability to refile a motion to dismiss following any
such withdrawal.



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