J-A20007-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
CHRISTOPHER ROBINSON,                     :
                                          :
                   Appellant              : No. 3369 EDA 2014

         Appeal from the Double Jeopardy Order November 24, 2014,
                   Court of Common Pleas, Monroe County,
              Criminal Division at No. CP-45-CR-0002139-2013

BEFORE: DONOHUE, SHOGAN and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED December 22, 2015

       Appellant, Christopher Robinson (“Robinson”), appeals from the order

entered on November 24, 2014 by the Court of Common Pleas of Monroe

County denying his motion to dismiss his charge of possession of a

controlled substance with intent to deliver (“possession with intent to

deliver”), 35 P.S. § 780-113(a)(30), on double jeopardy grounds.          After

remanding this case to the trial court for compliance with Rule 587(B) of the

Pennsylvania Rules of Criminal Procedure, we quash this appeal.

       Given our disposition of this case, a recitation of the facts underlying

Robinson’s convictions is unnecessary.      On April 10, 2014, a jury found

Robinson guilty of possession of a controlled substance and possession of

drug paraphernalia.1 The jury could not come to a decision on Robinson’s



1
    35 P.S. § 780-113(a)(16), (32).
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possession with intent to deliver charge and the trial court declared a

mistrial as to that offense.

      On June 24, 2014, the trial court sentenced Robinson to one to two

years of incarceration.2       Subsequently, the Commonwealth listed the

possession with intent to deliver charge for re-trial. In response, on July 24,

2014, Robinson filed a motion to dismiss the possession with intent to

deliver charge as violative of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and Article I, Section 10 of the

Pennsylvania Constitution. On November 24, 2014, following oral argument,

the trial court denied Robinson’s motion to dismiss.3 On December 5, 2014,

this appeal followed. On December 9, 2014, the trial court ordered Robinson

to file a concise statement of the errors complained of on appeal pursuant to

Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.              On

December 29, 2014, Robinson filed his timely Rule 1925(b) statement.

      On appeal, Robinson raises the following issue for our review and

determination:

            Where the Commonwealth fails to meet its burden of
            proof resulting in a hung jury on a possession with
            intent to deliver charge, but the jury enters a finding
            of guilty on the underlying possession charge, is the


2
  On June 30, 2014, Robinson filed a timely notice of appeal from his June
24, 2014 judgment of sentence, which this Court affirmed on August 4,
2015.
3
  On August 19, 2014, Robinson was paroled from the sentence imposed on
June 24, 2014.


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            Commonwealth barred on double jeopardy principles
            from retrying the possession with intent to deliver
            [charge] on the same set of facts?

Robinson’s Brief at 5.

      Before we may address the merits of Robinson’s appeal, we must

determine   whether      we   have   jurisdiction   over   the   appeal.   See

Commonwealth v. Blystone, 119 A.3d 306, 311 (Pa. 2015) (finding that

issues of jurisdiction may be raised sua sponte). Regarding appeals from an

order denying a motion to dismiss based on double jeopardy grounds, our

Supreme Court has stated the following:

               Generally, criminal defendants have a right to
            appeal a trial court’s pre-trial double jeopardy
            determination under Commonwealth v. Bolden, []
            373 A.2d 90 ([Pa.] 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,
            [] 373 A.2d 1094, 1095 ([Pa.] 1977) (per curiam)
            (emphasis added).

                Eight years later, in [Commonwealth v. Brady,
            508 A.2d 286 (Pa. 1986)], this 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.




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

      In 2013, Rule 587(B) was added to the Pennsylvania Rules of Criminal

Procedure to govern pretrial double jeopardy motions. Rule 587(B) provides

as follows:

              (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.

Pa.R.Crim.P. 587(B).




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      Here, the trial court failed to render a specific finding in the record on

the frivolousness of Robinson’s pretrial motion to dismiss his possession with

intent to deliver charge on double jeopardy grounds, as required by Rule

587(B)(4).     Consequently, we were unable to determine whether we had

jurisdiction    over   this   appeal.   See   Orie,   22   A.3d   at   1024-25;

Commonwealth v. Taylor, 120 A.3d 1017 (Pa. Super. 2015). Therefore,

on August 7, 2015, pursuant to this Court’s decision in Taylor,4 we

remanded this case for the trial court to make a finding as to whether

Robinson’ pretrial motion to dismiss was frivolous. See Commonwealth v.

Robinson, 3369 EDA 2014 (Pa. Super. Aug. 7, 2015) (unpublished

memorandum).

      In that unpublished memorandum, we also specifically informed

Robinson that he was required to comply with Rule 1573 of the Pennsylvania

Rules of Appellate Procedure in the event the trial court found his motion to

dismiss frivolous if Robinson desired this Court to review the trial court’s

frivolousness determination. Id. at 6 n.3; see also Pa.R.A.P. 1573. Rule

1573 states, in pertinent part, as follows:

               (a) General rule. Any party seeking review of a
               frivolousness determination by a court of common


4
    In Taylor, the trial court failed to enter on the record a statement of
findings of fact and conclusions of law and did not make a determination of
whether the defendant’s motion to dismiss on double jeopardy grounds was
frivolous. Taylor, 120 A.3d at 1022-23. This Court held that the trial court
was required to make such a determination under Rule 587(B)(4) and
remanded the case to the trial court. Id.


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             pleas under Pennsylvania Rule of Criminal Procedure
             587 shall file a petition for review in the appellate
             court having jurisdiction over the matter. 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. The
             time for filing is provided for in Pa.R.A.P. 1512(a)(1).

Pa.R.A.P. 1573(a).     Under Rule 1512(a)(1) of the Pennsylvania Rules of

Appellate Procedure and Rule 587(B)(5) of the Pennsylvania Rules of

Criminal Procedure, Robinson would have to file a petition seeking such

review within thirty days of the date of the trial court’s frivolousness

determination. See Pa.R.A.P. 1512(a)(1); Pa.R.Crim.P. 587(B)(5).

      On Tuesday, November 10, 2015, the trial court issued an order in

which it specifically found that Robinson’s pretrial motion to dismiss was

frivolous.   See Trial Court Order, 11/10/15, ¶ 2.         The trial court also

reminded Robinson of his obligation to, within thirty days of its order, file a

petition for review pursuant to Rules 1573 and 1512(a)(1) of the

Pennsylvania Rules of Appellate Procedure and Rule 587(B) of the

Pennsylvania Rules of Criminal Procedure should he wish for this Court to

review the trial court’s frivolousness determination. See id. ¶ 3. Therefore,

if Robinson wished to file a petition for review, it was due on Thursday,

December 10, 2015.

      Robinson filed an untimely petition for review on December 11, 2015,

thirty-one days following the trial court’s order. Thus, Robinson failed to file




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a petition for review within thirty days of the trial court’s order determining

that his motion to dismiss was frivolous as required by Rule 1512(a)(1) of

the Pennsylvania Rules of Appellate Procedure and 587(B)(5) of the

Pennsylvania Rules of Criminal Procedure.       Consequently, Robinson has

waived any right to review of the trial court’s frivolousness determination.

Therefore, because the trial court determined that Robinson’s pretrial motion

to dismiss his possession with intent to deliver charge on double jeopardy

grounds was frivolous, and he did not timely contest this determination, we

are without jurisdiction over this appeal.   See Orie, 22 A.3d at 1024-25;

Taylor, 120 A.3d at 1022-23.      Accordingly, we must deny his petition for

review and quash this appeal.

      Appeal quashed. Petition for review denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2015




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