J-E04004-17
                                2020 PA Super 107




 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 EMILY JOY GROSS,                         :
                                          :
                    Appellant             :   No. 375 EDA 2016




                  Appeal from the Order January 15, 2016
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0000045-2010

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.



DISSENTING OPINION BY DUBOW, J.:                     FILED APRIL 29, 2020

      I respectfully dissent from the Majority’s conclusion that the Superior

Court cannot review the trial court’s failure to follow the dictates of

Pennsylvania Rule of Criminal Procedure 587 (“Rule 587”). Majority Op. at p.

20, n.1. The Majority Opinion dismisses the jurisdictional importance of Rule

587 by finding that it governs only the procedure in the trial court and “does

not, however, govern or control appellate jurisdiction.” Majority Op. at p. 20,

n.1. The Majority concludes that since Appellant “neither preserved nor raised

any issue regarding the trial court’s method of resolving her claim,” Appellant
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has waived any challenge and this Court cannot address sua sponte the trial

court’s failure to make a determination of frivolousness. Id.

      The history leading up to the amendments to Rule 587 and the Appellate

Rules of Procedure demonstrates that we must interpret Rule 587 in

conjunction with the applicable Rules of Appellate Procedure. Rule 587

requires the trial court to make a factual finding of whether or not the motion

to dismiss is frivolous and that finding determines whether we have

jurisdiction pursuant to Pa.R.A.P. 313 or Pa.R.A.P. 1573. In other words, Rule

587 implicates our jurisdiction pursuant to the Rules of Appellate Procedure.

Without the factual finding, we do not have jurisdiction. The current rules do

not contemplate providing Superior Court with jurisdiction when the trial court

fails to make the factual finding of whether or not the motion to dismiss is

frivolous.

      Statutory Basis for Superior Court Jurisdiction

      It is helpful to start with the foundation for the jurisdiction of the

Superior Court. The legislature provided that the Superior Court has “exclusive

jurisdiction of all appeals from final orders of the court of common pleas. .

. . ” 42 Pa.C.S. 742 (emphasis added). The legislature, however, did not limit

the Superior Court’s jurisdiction to final orders. It also authorized the Superior

Court to hear appeals of certain interlocutory orders. 42 Pa.C.S. 702. In

particular, the legislature authorized the Superior Court to hear interlocutory

appeals authorized by law and those interlocutory appeals that the Superior



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Court determines to involve “a controlling question of law as to which there is

substantial ground for difference of opinion and that an immediate appeal from

the order may materially advance the ultimate termination of the matter.” Id.

      More important, however, is that the legislature further extended this

Court’s jurisdiction to hear interlocutory appeals by authorizing the “governing

authority” to “be responsible for a continuous review of the operation of

section 702(b)(relating to interlocutory appeals by permission) and shall from

time to time establish by general rule rights to appeal from such classes of

interlocutory orders, if any, from which appeals are regularly permitted

pursuant to section 702(b).” 42 Pa.C.S. § 5105. The legislature defines

“governing authority” to include the Supreme Court. 42 Pa.C.S. § 102. Thus,

the Supreme Court has the authority to promulgate rules regarding the right

to appeal certain interlocutory orders and thus, determine the Superior Court’s

jurisdiction to hear those interlocutory appeals.

      In fact, the Supreme Court has exercised such authority in promulgating

Pa.R.A.P. 311, 312 and 313, Chapter 13 and Chapter 15, which define certain

interlocutory appeals that an appellant may file as of right or by filing a petition

for review.

      Cases Leading to Amendments of Pennsylvania Rules                          of
      Appellate Procedure and Pa.R.Crim.P. 587

      The Majority concludes that Rule 587 merely affects trial procedure and

does not impact this Court’s jurisdiction to hear this appeal. The history that




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led to the amendments of Rule 587 and the Rules of Appellate Procedure belie

this claim.

      The Supreme Court first addressed the issue of whether a trial court’s

denial of a motion to dismiss on double jeopardy grounds was an interlocutory

appeal   in Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977), and

Commonwealth v. Haefner, 373 A.2d 1094 (Pa. 1977) (per curiam). Read

together, these cases held that a defendant had an automatic right to appeal

the trial court’s denial of a motion to dismiss on double jeopardy grounds.

      However, in Commonwealth v. Brady, 510 A.2d 336 (Pa. 1986), the

Supreme Court limited the type of motion to dismiss for which a defendant

had an automatic right to appeal on an interlocutory basis. The Supreme Court

held that where the trial court finds that the pre-trial double jeopardy

challenge is frivolous, the defendant does not have an automatic right to

appeal because the interlocutory appeal “will serve only to delay prosecution.”

Id. at 345. The Supreme Court noted that the appellate court could review

the trial court’s determination of frivolousness “in the context of a request for

a stay from an appellate court.” Id.

      In Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011), the Supreme

Court addressed the Brady “stay procedure” as the mechanism to ensure that

the trial court correctly determined that the motion to dismiss was frivolous.

The Supreme Court expressed its concerns that the “stay procedure” in

“Brady did not specify precisely how this review would occur, or in which



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court, and subsequent case law developments have confused matters

further.” Id. at 1024. As a result, the Supreme Court provided a broad

outline for a new procedure and referred the issue to Criminal Rules

Committee and Appellate Rules Committee to recommend a refinement to a

new procedure:

      The threshold question raised by the instant Petition implicates
      the appropriate procedure for an appellate court to follow where
      a trial court has dismissed a defendant's pre-trial double jeopardy
      challenge as frivolous. We take this opportunity to make clear
      to the bench and bar the appropriate framework for
      appellate review of such claims, subject to further
      refinement following a referral to the Criminal Procedural
      and Appellate Procedural Rules Committees. We do so
      because this Court has not addressed this important issue since
      Commonwealth v. Brady, our review of the intervening case law
      reveals that confusion has arisen in this area, and the confusion
      makes it difficult to ascertain the review that was engaged in by
      the Superior Court below.

Id. (emphasis added).

      In particular, the Supreme Court found that Chapter 15 of the Rules

of Appellate Procedure is the “vehicle for implicating the jurisdiction of the

appellate court” for reviewing the trial court’s finding that the motion to

dismiss is frivolous:

      We believe the most efficacious remedy is to employ the existing
      procedures of Chapter 15 of the Rules of Appellate Procedure and
      permit a petitioner seeking review of a trial court's finding of
      frivolousness to file a Petition for Review in the Superior Court, as
      Petitioner has done here. The centerpiece of Chapter 15 is the
      use of the “petition for review” as the vehicle for
      implicating the jurisdiction of the appellate court. See
      Pa.R.A.P. 1511. Significantly, under Pa.R.A.P. 1501, matters
      designated by general rule are appropriately channeled into
      Chapter 15. Here, we consider it a modest adaptation of Brady to


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      so designate the procedure invoking the review which it
      contemplated. Indeed, such approach dovetails with the review of
      orders refusing to certify interlocutory orders for immediate
      appeal, which are reviewed by the appellate courts under Chapter
      15. See Pa.R.A.P. 1501(a)(4).

Id. at 1027 (emphasis added). Thus, the Supreme Court ordered Appellate

Procedural Rules Committee and Criminal Procedural Rules Committee to

refine the procedure for appeals from a trial court’s denial of a motion to

dismiss on double jeopardy grounds.

      Amendments to Rules of Criminal Procedure and Rules of
      Appellate Procedure

      In 2013, after receiving comments from the Appellate Procedural Rules

Committee and the Criminal Procedural Rules Committee, the Supreme Court

adopted amendments to Rule 587 and Pa.R.A.P. 1573 and the comment to

Pa.R.A.P. 313. Read together, those rules create two options for an appeal

when the trial court denies a motion to dismiss. If the trial court finds the

motion to be frivolous, a defendant may appeal pursuant to Pa.R.A.P. 1573.

If the trial court finds the motion to have merit, a defendant may appeal

pursuant to Pa.R.A.P. 313. This procedure does not contemplate a situation

where the trial court is silent on the issue of whether or not the motion is

frivolous.

      In particular, Rule 587 plainly and unambiguously requires the trial court

to make an explicit determination about whether a defendant’s motion to

dismiss on double jeopardy grounds is frivolous. Rule 587(B)(4) provides that

“[i]n the case in which the judge denies the motion [to dismiss on double


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jeopardy grounds], the findings of fact shall include a specific finding as

to frivolousness.” Pa.R.Crim.P. 587(B)(4) (emphasis added). That finding

is crucial in order to determine the defendant’s appellate rights. 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 thirty days of the order denying the motion.” Pa.R.Crim.P. 587(B)(5).

Conversely, if the trial court “denies the motion [to dismiss on double jeopardy

grounds] 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)(6).

      The Supreme Court simultaneously amended the Pennsylvania Rules of

Appellate Procedure. The Supreme Court amended Pa.R.A.P. 1573 to address

the situation where the trial court finds the motion to be frivolous. Pa.R.A.P.

1573 provides that appellate “review of a frivolousness determination

under Pennsylvania Rule of Criminal Procedure 587 shall be governed

by this chapter and ancillary provisions of these rules, except as otherwise

prescribed by this rule.” Pa.R.A.P. 1573 (emphasis added).

      Similarly, the Supreme Court amended the Comment to Pa.R.A.P. 313,

which addresses collateral orders, to provide as an example of a collateral

order those “orders denying pre-trial motions to dismiss based on double

jeopardy in which the court does not find the motion frivolous.”



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(emphasis added). The Comment compares a non-frivolous motion with one

in which the trial court finds the motion to be frivolous when it opines that “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.”

      These amendments create the procedure for appealing a denial of a

motion to dismiss. The crux of that procedure is the trial court’s finding of

whether or not the motion is frivolous and that finding is the predicate for our

jurisdiction under Pa.R.A.P. 313 or Pa.R.A.P. 1573. Therefore, our jurisdiction

is not implicated unless and until the trial court makes a determination about

whether the appeal is frivolous or not frivolous.1

      It should be noted that the Supreme Court did not amend the rules to

provide for the situation where the trial court is silent on whether the appeal

is frivolous. Rule 587 provides that the trial court shall make a determination

of frivolous and then the other rules define our jurisdiction.

      In this case, the trial court made no determination about whether the

motion to dismiss was frivolous. Thus, there is no factual determination to




1  Rule 587 is not unique in requiring the trial court to make a factual
determination that affects a party’s appellate rights and our jurisdiction.
Pa.R.A.P. 341(c), which addresses whether a trial court order is a final order
when the trial court’s order only impacts some of the parties or claims,
requires the trial court to make a determination about whether “an immediate
appeal would facilitate a resolution of the entire case.” Pa.R.A.P. 341(c). If the
trial court makes that determination, a party has the right to file a petition for
review with this Court. Pa.R.A.P. 341(c)(4).


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implicate our jurisdiction pursuant to either Pa.R.A.P. 313 or Pa.R.A.P. 1573.

Thus, we lack jurisdiction to review the merits of this appeal.

         Majority Opinion

         The Majority’s conclusion that Rule 587 only affects trial procedure and

does not implicate our jurisdiction ignores the unambiguous meaning of Rule

587 and Pa.R.A.P. 313 or Pa.R.A.P. 1573. As discussed above, Rule 587

requires the trial court to make a factual finding of whether or not the motion

is frivolous and then the Rules of Appellate Procedure define our jurisdiction.

To accept the Majority’s conclusion means ignoring the plain meaning of these

rules.

         Furthermore, the impact of the Majority’s conclusion is that the trial

court’s silence on the issue of whether the motion to dismiss is frivolous is

equivalent to the trial court making a finding that the motion is not frivolous,

i.e., the motion has merit. As the analysis supra shows, our rules do not

support that conclusion. The above rules contemplate two choices: an appeal

in which the trial court finds the motion to dismiss to be frivolous and an

appeal in which the trial court finds the motion to dismiss not to be frivolous.

The rules do not contemplate a situation in which the trial court is silent on

this issue.

         Moreover, the cases upon which the Majority relies were decided before

2013 when the Supreme Court, pursuant to the directive in Commonwealth

v. Orie, worked with the Appellate Procedural Rules Committee and the



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Criminal Procedural Rules Committee, to amend both sets of rules to create a

mechanism for an appeal from the denial of a motion to dismiss as well as our

jurisdiction to hear those appeals. Thus, those cases have limited precedential

value.2

      The Majority also relies upon the proposed Comment to Rule 313 that

identifies collateral orders from which an appellant has the automatic right to

appeal as those denying a motion to dismiss on the grounds of double

jeopardy “if the trial court does not also make a finding that the motion to

dismiss is frivolous.”3 In other words, the proposed Comment addresses the

situation in which the trial court follows the requirements of Rule 587 and

makes a finding that the motion to dismiss has merit, i.e., the trial court

does not find that the motion is frivolous. The Majority, however, interprets

this comment as providing that the trial court’s silence on the issue of

whether the appeal is frivolous means that the trial court determined that the

motion to dismiss has merit and we have jurisdiction to review the merits of




2 The only case that has the same facts as this case, i.e., where the trial court
was silent on the issue of frivolousness, is Commonwealth v. Gains, 556
A.2d 870, 874 (Pa. Super. 1989). In that case, the Superior Court held that
the trial court’s silence meant that the appellant had the automatic right to
appeal. The Supreme Court, however, promulgated Rule 587 in 2013, years
after the decision in Gains. Because Rule 587 requires the trial court to make
a determination of whether the motion is frivolous, I believe Rule 587
supersedes the holding in Gains.
3
 I note that the existing Comment is identical to the proposed Comment, but
I address the proposed Comment because that is the Comment upon which
the Majority relies.

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the denial as a collateral order. The Majority’s interpretation is inconsistent

with the clear and unambiguous language of Rule 587 that requires the trial

court to make a determination and does not permit silence on the issue.

      In conclusion, the trial court’s silence on whether this appeal is frivolous

or not is not mere “trial error.” It is a jurisdictional defect and until the trial

court makes that determination pursuant to Rule 587, our jurisdiction

pursuant to Pa.R.A.P. 313 or Pa.R.A.P. 1573 is not implicated and we cannot

review this appeal.

      Conclusion

      In conclusion, I would find that we must read Rule 587 in conjunction

with Pa.R.A.P. 313 and 1573 and such interpretation implicates the jurisdiction

of the Superior Court. Therefore, we must address sua sponte the trial court’s

failure to determine whether the Motion to Dismiss was frivolous. Since the

trial court failed to do so, I would remand the case to determine, pursuant to

Rule 587, whether this appeal is frivolous or not frivolous.

      Judge Shogan and Judge Stabile join this dissenting opinion.




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