J-E03008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA


                        v.

    FREDERICK HALL

                             Appellant                    No. 1669 EDA 2015


                   Appeal from the Order Entered May 22, 2015
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0001083-2015


BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J., OTT, J.,
        STABILE, J., DUBOW, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                            FILED DECEMBER 12, 2017

        Appellant, Frederick Hall, appeals from the order entered May 22, 2015,

denying his motion to dismiss, which asserted a violation of Pennsylvania’s

compulsory joinder rule.        See 18 Pa.C.S. § 110.     After careful review, we

remand with instructions.

        We derive the following statement of facts and procedural background

of this case from the record. In May 2014, Appellant was arrested in the City

and County of Philadelphia.1 At that time, Appellant was charged with three

counts of driving under the influence (“DUI”), and one count each of recklessly

____________________________________________


1   Philadelphia is the First Judicial District of Pennsylvania. 42 Pa.C.S. § 901(a).




                                           -1-
J-E03008-16


endangering another person (“REAP”) and disorderly conduct.2 Appellant was

simultaneously charged with the summary traffic offenses of driving while

operating privilege is suspended and reckless driving.3 In July 2014, Appellant

was found guilty in absentia of both traffic offenses in the Philadelphia

Municipal Court Traffic Division.        The remaining charges were listed in the

Philadelphia Municipal Court General Division for disposition, and Appellant

was found guilty of a single count of DUI. In February 2015, Appellant was

sentenced to time served to twelve months of incarceration.4 Appellant timely

appealed the conviction pursuant to Pa.R.Crim.P. 1006, requesting a trial de

novo before the Philadelphia Court of Common Pleas.

        In the Court of Common Pleas, Appellant filed a motion to dismiss

pursuant to 18 Pa.C.S. § 110, known as the compulsory joinder rule.5

____________________________________________


2See 75 Pa.C.S. § 3802(a)(1), (d)(2), (d)(3) (all graded as misdemeanors);
18 Pa.C.S. §§ 2705 (graded as a misdemeanor) and 5503 (graded as a
summary), respectively.

3   See 75 Pa.C.S. §§ 1543(a) and 3736(a), respectively.

4We note that the procedural history in the trial court opinion is not consistent
with the record. However, the above recitation of facts accurately reflects the
record. See Trial Court Opinion, 9/10/2015, at 2.

5 This Court addressed the compulsory joinder rule in our recent decision,
Commonwealth v. Perfetto, 169 A.3d 1114 (Pa. Super. 2017) (en banc).
The Perfetto Court recognized, “[s]ection 110 is a codification of the rule
announced by our Supreme Court in Commonwealth v. Campana, 304 A.2d
432 (Pa. 1973), vacated and remanded, 94 S. Ct. 73 (1973), reinstated, 314
A.2d 854 (Pa. 1974), cert. denied, 94 S. Ct. 3172 (1974). In Campana, our
Supreme Court held that the Double Jeopardy Clause requires a prosecutor to



                                           -2-
J-E03008-16


Following a hearing, the Honorable Vincent N. Melchiorre denied Appellant’s

motion to dismiss.        However, no findings of fact or findings as to the

frivolousness of the motion were entered on the record. Notes of Testimony

(N.T.), 5/22/2015 at 3-8.

       Appellant timely filed a notice of appeal. No 1925(b) statement was

ordered.     Nevertheless, in August 2015, the trial court filed an opinion

explaining its decision.      In June 2016, this Court issued a memorandum

opinion reversing the trial court. Thereafter, the original panel assigned to

this case sua sponte sought en banc certification of this matter, which was

granted in August 2016.

       Appellant raises the following claim for our review:

       1. Did not the lower court err in denying [A]ppellant’s motion to
          dismiss pursuant to 18 [Pa.C.S.] § 110 where [A]ppellant had
          previously been convicted of an offense which arose from the
          same criminal episode as the offense in the instant case?

Substituted Brief for Appellant, at 3.

       As an initial matter, we must determine whether this Court has

jurisdiction over the instant appeal. Commonwealth v. Taylor, 120 A.3d

1017, 1021 (Pa. Super. 2015) (noting that issues of jurisdiction may be raised

sua sponte).


____________________________________________


bring, in a single proceeding, all known charges against a defendant arising
from a single criminal episode.” Perfetto, 169 A.3d at 1117 (most internal
citations and quotations omitted).



                                           -3-
J-E03008-16


       Pennsylvania Rule of Criminal Procedure 587(B) governs motions to

dismiss on double jeopardy grounds. Pa.R.Crim.P. 587(B). An order denying

such a motion may be appealable as a collateral order.6 An immediate appeal

from the denial of a double jeopardy claim is allowable under the collateral

order doctrine where the motion is found not to be frivolous.               See

Commonwealth v. Brady, 508 A.2d 286, 289-91 (1986) (holding that

absent a finding of frivolousness, an appeal may be taken from the denial of

a motion to dismiss). In our recent decision, Commonwealth v. Diggs, ---

A.3d --- (Pa. Super. 2017), we held that Pa.R.Crim.P. 587(B) applies to

motions to dismiss based on compulsory joinder “[a]s Section 110 embodies

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

[and] the interlocutory appealability of double jeopardy claims has been

applied to claims based on Section 110.”         Diggs, --- A.3d ---, *5 (citing

Commonwealth v. Bracalielly, 658 A.2d 755, 759-60 (Pa. 1995)); see also

Pa.R.A.P. 313(b). Accordingly, appellate jurisdiction exists only where a court

determines that a motion to dismiss on compulsory joinder grounds is not

frivolous and thereby qualifies as a collateral order. Diggs, --- A.3d ---, *5-

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




____________________________________________


6 “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).

                                           -4-
J-E03008-16


      Here, our review of the transcript and record reveals that the trial court

failed to comply with Rule 587(B), as it denied Appellant's motion to dismiss

based on compulsory joinder without entering on the record a statement of

findings of fact or a specific determination regarding whether Appellant's

motion was frivolous. N.T., 5/22/2015 at 3-8; see Pa.R.Crim.P. 587(B)(3)-

(4). Accordingly, this Court may not exercise jurisdiction over this appeal. In

light of Diggs, we are constrained to remand this matter to the Court of

Common Pleas for additional findings and with instructions to comply with Rule

587(B).

      Case remanded for proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




                                     -5-
