Com. v. Nocero, J. ( 2017 )

J-A02002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JOHN T. NOCERO
Appellant No. 1154 EDA 2015
Appeal from the Order March 27, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012927-2014
BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 29, 2017
John T. Nocero brings this interlocutory appeal from the trial court’s
March 27, 2015, order denying his motion to dismiss pursuant to the
compulsory joinder rule codified at 18 Pa.C.S. § 110. The relevant facts and
procedural history underlying this appeal were aptly summarized by the trial
court and we need not recite them herein.1 In his sole claim on appeal, Nocero
contends the court erred in denying his motion to dismiss three criminal
misdemeanor-level charges pursuant to Section 110. See Nocero’s Brief at
7. In light of the recent decision by a panel of this Court in Commonwealth
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
See Trial Court Opinion, 2/26/2016, at 2-5 (emphasis in original).
J-A02002-17
v. Diggs, __ A.3d __, 2017 PA Super 331 [3150 EDA 2015] (Oct. 19, 2017),
we are constrained to remand with instructions.
In Diggs, supra, like the present matter, the defendant appealed from
an order denying his motion to dismiss, in which he asserted a violation of
Section 110. The Diggs Court determined the procedural posture of the case
implicated this Court’s jurisdiction over the matter. The Court held
Pennsylvania Rule of Criminal Procedure 587(B), which governs motions to
dismiss on double jeopardy grounds, applies to motions to dismiss based on
Section 110. See Diggs, __ A.3d __, 2017 PA Super 331, ¶ 5. Relying on
Commonwealth v. Taylor, 120 A.3d 1017 (Pa. Super. 2015), the Diggs
Court highlighted the requirements when addressing a Rule 587(B) matter:
We explained a trial court’s responsibilities pursuant to
Pa.R.Crim.P. 587:
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.
Taylor, 120 A.3d at 1022-1023 (footnote omitted).
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J-A02002-17
Diggs, __ A.3d __, 2017 PA Super 331, ¶¶ 5-6. The Diggs Court concluded
the municipal court had failed to comply with Rule 587(B), and therefore,
remanded the case for further proceedings.
Turning to the present matter, our review of the record reveals the trial
court failed to comply with Rule 587(B) by: (1) not entering on the record a
statement of findings of fact and conclusions of law;2 and (2) not making a
determination of whether Nocero’s motion to dismiss was frivolous.3
Accordingly, pursuant to Diggs, we remand the matter to the trial court with
instructions that it comply with Rule 587(B). Following such compliance, the
court shall prepare a supplemental Rule 1925(a) opinion.
Case remanded for proceedings consistent with this decision.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2017
____________________________________________
2
See Pa.R.Crim.P. 587(B)(4).
3
See Pa.R.Crim.P. 587(B)(3).
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