J-A09001-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
           v.                              :
                                           :
JEFFERY MASSI,                             :
                                           :
                   Appellant               : No. 98 EDA 2014

                   Appeal from the Order December 9, 2013,
                  Court of Common Pleas, Philadelphia County,
                Criminal Division at No. CP-51-CR-0001179-2012

BEFORE: BOWES, DONOHUE and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 30, 2015

     Jeffery Massi (“Massi”) appeals from the order of court denying his

motion to dismiss. Upon review, we find it necessary to remand for further

proceedings.

     We begin with brief factual and procedural histories.       In December

2011, Massi was serving a probationary sentence. On December 28, 2011,

Probation Agents Butler and Gardner visited Massi’s parents’ home, where

Massi was residing. Massi’s father let the agents into the home and directed

them to Massi’s room. Of note, in Massi’s room was an entryway to another

room (“the utility room”), but no door separated these spaces.

     While speaking with Massi in his room, Agent Butler observed a glass

pipe in Massi’s dresser.       Upon questioning, Massi admitted that he had

recently used it to smoke marijuana. Based on that admission, Agent Butler
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and his partner placed Massi under arrest and handcuffed him.          While

subsequently searching Massi’s room, Agent Butler looked into the utility

room and saw the exposed handle of a firearm.       Massi indicated that the

firearm belonged to his father, that it had been in their family for a long

time, and that his fingerprints could be on it because he had held it on many

occasions in the past. Based upon the items that he discovered during this

home visit, Massi was charged with persons not to possess firearms and

possession of drug paraphernalia.

      The Commonwealth elected to have a violation of probation hearing

(“VOP hearing”) prior to the resolution of these criminal charges.       The

Commonwealth alleged that Massi violated his probation by virtue of

possessing a firearm and possessing drug paraphernalia. At the conclusion

of the hearing, the VOP court declined to find that Massi violated his

probation.

      On December 5, 2013, Massi filed a motion seeking to dismiss the

criminal charges against him based upon the VOP court’s determination that

he did not possess the firearm or the pipe.     Massi argued that collateral

estoppel prohibited the re-litigation of whether he possessed these items.

Following argument, the trial court denied Massi’s motion.       This appeal

follows.

      Before we reach the issue Massi has presented for our review, we

consider whether this Court properly has jurisdiction over this appeal. See



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Commonwealth v. Gaines, __ A.3d __, 2015 WL 67500712015 at * 2 (Pa.

Super. Nov. 15, 2015) (providing that this Court may raise issues concerning

appellate jurisdiction sua sponte). Pennsylvania Rule of Criminal Procedure

587(B) (“Rule 587(B)”) governs pretrial motions to dismiss based on alleged

double jeopardy violations. It provides as follows:

            (B) Double Jeopardy

                   (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.

                  (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.




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Pa.R.Crim.P. 587(B) (emphasis added).1 At the conclusion of the hearing on

Massi’s motion, the trial court summarized the parties’ positions, stated its

conclusions of law and denied the motion. N.T., 12/9/13, at 12-13. Then

the following dialogue occurred:

            [Counsel]: Judge, at this point, I would like to take
            an immediate appeal under the authority of United
            States v. States.

            [Trial Court]: We’ll give this a date. Time will be
            ruled excludable. We’ll give it a three month status
            date.

            [Counsel]: Your Honor, if you could issue an order so
            I can appeal it. The only requirement is that you
            don’t find the issue to be frivolous which would allow
            me to – and I do think based on my –

            [Trial Court]: If you want to appeal it, I’ll allow you
            to appeal it, and we’ll issue opinions accordingly.

            [Court Crier]: March 11.

            [Trial Court]: Order is appealable.

Id. at 13-14.

      Notably, at no time did the trial court use the term “frivolous” or “not

frivolous” when ruling on Massi’s motion. Neither the trial court nor Massi’s

counsel mention Rule 587(B). In its subsequent order, the trial court makes

no finding regarding the frivolity of the appeal. To the contrary, it concludes

that the order is interlocutory and that the appeal must be quashed because

it is not appealable as of right pursuant to Pa.R.A.P. 311 and Massi did not

1
  This Rule became effective on July 4, 2013, five months before the trial
court entertained Massi’s double jeopardy motion.


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file a petition seeking permission to file an appeal pursuant to Pa.R.A.P.

1311. Trial Court Order, 12/17/13. At no point does the trial court evince

any   knowledge    or    recognition     of   Rule     587(B)   or   its   requirements.

Accordingly, we conclude that the trial court did not consider whether

Massi’s   motion   was    frivolous    or     not,    much   less    make    a   specific

determination as to frivolousness, as is required by Rule 587(B)(4).

Furthermore, even if the trial court’s statement at the hearing could be

interpreted as finding that Massi’s motion was not frivolous, the trial court

failed to advise Massi of his appeal rights, as is required by Rule 587(B)(6).

We will not overlook the trial court’s failure to fulfill the requirements of Rule

587(B), as to do so would create exceptions to a rule that provides no

exceptions to its strict instructions.

      In highly similar circumstances, this Court remanded a case for the

trial court to comply with Rule 587(B).              See Commonwealth v. Taylor,

120 A.3d 1017 (Pa. Super. 2015) (remanding case for trial court to comply

with Rule 587(B) so Superior Court could determine whether it properly has

jurisdiction over appeal). Accordingly, we remand this case to the trial court

for an explicit finding regarding the frivolousness of Massi’s motion and to

advise him of his appeal rights, as mandated by Rule 587(B).

      Case remanded. Panel Jurisdiction retained.

      Stabile, J. joins the Memorandum.

      Bowes, J. files a Dissenting Memorandum.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2015




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