J-A06028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

THOMAS TINSLEY,

                         Appellant                   No. 431 EDA 2016


                 Appeal from the Order January 21, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0011849-2013


BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JULY 18, 2017

      Appellant, Thomas Tinsley, appeals from the order entered January 21,

2016, denying his motion to dismiss on double jeopardy grounds pursuant to

18 Pa.C.S. § 110. After careful review, we remand the matter to the trial

court for compliance with Pa.R.Crim.P. 587(B).

      The trial court summarized the factual and procedural history of this

case as follows:

             According to the arresting officer, on September 3, 2013,
      he saw [Appellant] run a stop sign and pulled him over, at which
      time he “recovered” a loaded firearm. He issued [Appellant] a
      citation for running a stop sign and arrested him for possession
      of the gun. [Appellant] was charged with Carrying a Firearm
      While Prohibited, Without a License, and in Public[,] and
      Possession of an Instrument of Crime.2 Due to the fact that, in
      his testimony, the officer did not specify, and his records did not
      indicate, exactly how or from where the gun was recovered, nor
      that it was used in a criminal fashion, the latter two charges
      were dismissed for lack of evidence.            At a hearing on
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      [Appellant’s] motion to suppress, the same officer testified about
      the incident in much greater detail, in particular that he found
      the weapon in the glove box of [Appellant’s] vehicle.          On
      November 5, 2013, at a hearing in Philadelphia Traffic Court,
      [Appellant] pled not guilty but was convicted of disregarding a
      stop sign. [The motion to suppress] was denied on April 23,
      2014, and on November 24, 2015, he filed [a] motion to
      dismiss[,] claiming that his prosecution for the weapons offenses
      was barred. At the end of the hearing on the motion, the court
      scheduled the case “must be tried” for May 23, 2016, this appeal
      was filed the next day, and it does not appear that [Appellant]
      has requested a stay of proceedings.
            2
             75 Pa.C.S. § 3323(b); 18 Pa.C.S. § 6105(a)(1),
            6106(a)(1), 6108 & 907(a).

Trial Court Opinion, 4/14/16, at 1-2 (two footnotes omitted). The trial court

and Appellant complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      1.    Did the lower court commit an error of law when, in
            denying Appellant’s Motion to Dismiss for Double Jeopardy
            based on 18 Pa.C.S. § 110, it cited to and relied upon
            cases interpreting a prior version of Section 110, which
            was amended in 2002, and which now requires the
            Commonwealth to join offenses that occurred within one
            judicial district?

Appellant’s Brief at 2 (emphasis in original).

      Before turning to the merits of Appellant’s argument, we must

determine if we may exercise jurisdiction over this appeal.         Initially, we

acknowledge     that   issues of   jurisdiction   may be   raised   sua sponte.

Commonwealth v. Taylor, 120 A.3d 1017, 1021 (Pa. Super. 2015).

Moreover, “[w]hen considering the proper exercise of appellate jurisdiction,




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our review is de novo, and the scope of review is plenary.” Id. at 1021 n.8

(citation omitted).

      Pa.R.A.P. 313 provides in part:

      A collateral order is an order separable from and collateral to the
      main cause of action where the right involved is too important to
      be denied review and the question presented is such that if
      review is postponed until final judgment in the case, the claim
      will be irreparably lost.

Pa.R.A.P. 313(b). The comment to Rule 313 specifically cites as an example

of a collateral order an order denying a pretrial motion to dismiss on double

jeopardy grounds.     Id. at cmt.    (“Examples of collateral orders include

orders denying pre-trial motions to dismiss based on double jeopardy in

which the court does not find the motion frivolous, Commonwealth v.

Brady, 510 Pa. 336, 508 A.2d 286, 289-91 (1986).”).              “Indeed, our

Supreme Court has held that orders denying a defendant’s motion to dismiss

on double jeopardy grounds are appealable as collateral orders, so long as

the motion is not found to be frivolous.” Taylor, 120 A.3d at 1021.

      In 2013, the Pennsylvania Rules of Criminal Procedure were amended

to codify the common law framework for motions to dismiss on double

jeopardy grounds. In particular, Pa.R.Crim.P. 587(B) was added to govern

pretrial double jeopardy motions.       Specifically, 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.


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      (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).

      This Court had the opportunity to interpret Rule 587(B) in the context

of a trial court’s failure to fully comply with the rule in Taylor, 120 A.3d at

1021. This Court explained:

      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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Taylor, 120 A.3d at 1022-1023 (footnote omitted).

        In Taylor, the trial court denied the appellant’s motion to dismiss on

double jeopardy grounds, but failed to enter on the record a statement of

findings of fact and conclusions of law.          Further, it did not make a

determination of whether the appellant’s motion to dismiss on double

jeopardy grounds was frivolous.       Id. at 1023.    Regarding the trial court’s

failure to fully comply with Rule 587(B), this Court held:

        [O]ur review of the record, in particular the [motion to dismiss
        on double jeopardy grounds] argument transcript, reveals the
        trial court failed to comply with Rule 587(B)(3) th[r]ough (6).
        Specifically, as required under Rule 587(B)(3), following oral
        argument, the trial court failed to enter on the record a
        statement of findings of fact and conclusions of law. Moreover,
        in denying [a]ppellant’s motion to dismiss on double jeopardy
        grounds, the trial court also failed to render a specific finding on
        frivolousness, as required under Rule 587(B)(4). The trial court
        did not find whether [a]ppellant’s motion to dismiss was or was
        not frivolous. Given the trial court’s failure to comply with Rule
        587[(B)], we are unable to decide whether we may exercise
        jurisdiction over this appeal. Consequently, we remand this
        matter to the trial court for compliance with Rule 587[(B)] and
        preparation of a supplemental Rule 1925(a) opinion within sixty
        days of the date of this opinion.

Id. (footnotes omitted).

        In this case, a hearing on Appellant’s motion to dismiss based on

double jeopardy grounds was held on January 20, 2016. N.T., 1/20/16, at

2-31.     Review of that hearing transcript reflects argument presented by

defense and Commonwealth counsel regarding Appellant’s motion. Id. at 3-

25.   At the conclusion of the argument, the trial court denied the motion,


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concluding that not all of the factors under 18 Pa.C.S. § 110 had been met.

Id. at 25.    After denying the motion, the trial court judge immediately

proceeded to address the Commonwealth’s unrelated motion. Id.

      As in Taylor, the trial court in this case failed to comply with Rule

587(B)(3) through (6).    Specifically, the trial court failed to enter on the

record a statement of findings of fact and conclusions of law and failed to

render a specific finding on frivolousness.      The trial court also failed to

comply with related factors 587(B)(5) and (6).

      We note that in its Pa.R.A.P. 1925(a) opinion, the trial court stated,

“The same precedents that demonstrate that [Appellant’s] claim here is

patently frivolous also demonstrate it is equally meritless.”      Trial Court

Opinion, 4/14/16, at 4.   The trial court opinion also includes the following

conclusory statement:     “Wherefore, [Appellant’s] claim is patently both

frivolous and completely lacking in merit and the court’s denial of his motion

should be affirmed.” Id. at 8.

      It appears that the trial court therein was attempting to comply with

the requirement that a determination as to the frivolousness of a motion to

dismiss on double jeopardy grounds be indicated.            These statements

reflecting the trial court’s apparent determination regarding the frivolousness

of Appellant’s motion to dismiss on double jeopardy grounds, however, are

insufficient to satisfy the criteria of Pa.R.Crim.P. 587(B) and Taylor.     As

previously outlined, the trial court failed to place on the record a statement


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of findings of fact and conclusions of law and failed to render a specific

finding on frivolousness. Thus, the determination regarding frivolousness of

the motion was not made, at least to the parties, until the trial court issued

its Pa.R.A.P. 1925(a) opinion after Appellant filed an appeal.

      Rule 587(B)(3) states:      “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.”

Pa.R.Crim.P. 587(B)(3) (emphasis added). Moreover, subsection 587(B)(4)

provides: “In a case in which the judge denies the motion, the findings of

fact shall include a specific finding as to frivolousness.”

      Additionally, in Taylor, we took note of the final report on Rule 587(B)

issued by the criminal procedure rules committee, which states:

      The members of the Criminal Committee noted, anecdotally, that
      frequently judges will deny the motion to dismiss on double
      jeopardy grounds without making a finding with regard to
      frivolousness unless or until a defendant challenges the denial of
      the motion, and that some judges do not explain the basis for
      finding the motion frivolous. Recognizing that these practices
      are a source of confusion and that they cause problems for
      defendants and appellate courts when such motions are denied,
      the amendments require the trial judge to make a specific
      finding as to frivolousness at the time the judge decides
      the double jeopardy motion, and further require a trial
      judge to make a contemporaneous record of the judge’s
      reasons for his or her findings.

Taylor, 120 A.3d at 1022 n.10 (emphasis added).               We interpret these

mandates to reflect the requirement that the finding of frivolousness be




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made at the time the hearing on the motion to dismiss on double jeopardy

grounds takes place.

       Accordingly, the trial court’s subsequent finding of frivolousness in its

Pa.R.A.P. 1925(a) opinion regarding Appellant’s motion to dismiss on double

jeopardy grounds is insufficient to satisfy the requirement pursuant to

Pa.R.Crim.P. 587(B)(3) and (4). Moreover, the trial court failed to comply

with the remaining criteria outlined in Pa.R.Crim.P. 587(B). Consequently,

we remand this matter to the trial court for compliance with Pa.R.Crim.P.

587(B) and the preparation of a supplemental Rule 1925(a) opinion within

sixty days of the date of this opinion.1         Upon the filing of a supplemental

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

       Case remanded. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




____________________________________________


1
  Our retaining jurisdiction over this appeal would not excuse Appellant’s
non-compliance with Criminal Rule 587(B)(5) and Appellate Rule 1573 in the
event the trial court determines his double jeopardy motion to be frivolous.



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