Com. v. Massi, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001179-2012
BEFORE: BOWES, DONOHUE, AND STABILE, JJ.
DISSENTING MEMORANDUM BY BOWES, J.: FILED DECEMBER 30, 2015
I must respectfully dissent from the learned majority’s conclusion that
this Court lacks jurisdiction at this stage to reach the merits of Appellant’s
non-frivolous double jeopardy challenge. The majority’s reading of the
record and Pa.R.Crim.P. 587(B) unnecessarily elevates form over substance.
Indeed, the Commonwealth concedes that this Court has jurisdiction over
this appeal. See Commonwealth’s brief at 4 n.2. While the
Commonwealth’s position is not controlling, it refutes any implication by the
majority that the parties herein are unsure of the trial court’s finding of non-
frivolousness.
Instantly, the trial court conducted a hearing on Appellant’s double
jeopardy motion, which complied with Rule 587(B)(2). At the conclusion of
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that proceeding, the court, via its court crier, placed on the record findings
of fact and conclusions of law and denied the motion. See Pa.R.Crim.P.
587(B)(3). At no point did the court find Appellant’s motion frivolous.
Pointedly, in direct response to Appellant’s counsel stating that, in order to
allow him to appeal, the court had to find his motion non-frivolous, the court
twice instructed him that the order was appealable. I reproduce the relevant
exchange in its entirety:
Counsel: Judge, at this point, I would like to take an immediate
appeal under the authority of United States versus States.[1]
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 –
Court: If you want to appeal it, I’ll allow you to appeal it,
and we’ll issue opinions accordingly.
Court Crier: March 11.
Court: Order is appealable.
N.T., 12/9/13, at 13-14 (emphases added).
1
Appellant mistakenly stated United States instead of Commonwealth. In
Commonwealth v. States, 938 A.2d 1016, 1019 n.6 (Pa. 2007), the
Pennsylvania Supreme Court explained that absent a finding of
frivolousness, appellate courts have jurisdiction to consider appeals from the
denial of a double jeopardy motion.
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The majority essentially reasons that the failure to utter the magic
words that the motion was “non-frivolous” results in the trial court having
neglected to make such a finding. This not only defies a common sense
reading of the record, but the very understanding of both Appellant and the
Commonwealth. Frankly, the majority’s reading of the record and Rule
587(B) turns one of the purposes of the rule, to avoid delay tactics, on its
head. If a court telling an attorney that the order is appealable, multiple
times, in direct response to the attorney’s statement that the court must
make a finding of non-frivolousness, does not equal compliance with Rule
587(B)(4), then only the utterance of talismanic words would satisfy the
majority. This is, of course, inconsistent with our jurisprudence in a host of
other areas that eschews the importance of articulating such talismanic
phrases. See also Commonwealth v. Gains, 556 A.2d 870 (Pa.Super.
1989) (en banc) (“The focus of our Supreme Court's decision in
[Commonwealth v.] Brady, [508 A.2d 286 (Pa. 1986)], and our focus
presently, is not upon the presence of the written word "frivolous" in a trial
court's opinion or order. The focus is upon an express determination on the
part of the trial court that a double jeopardy claim is frivolous, meaning
clearly and obviously without merit.”). What is more is that neither Rule
587(B) nor Commonwealth v. Taylor, 120 A.3d 1017 (Pa.Super. 2015),
supports the majority’s overly strict construction of the rule.
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The origins of rule 587(B) illustrate better my reasoning, therefore, a
brief discussion on the evolution of pre-trial double jeopardy appeals is
warranted. In Commonwealth v. Bolden, 373 A.2d 90, 93 (Pa. 1977), a
plurality of our High Court opined,
We hold that the denial of a pre-trial application to dismiss an
indictment on the ground that the scheduled trial will violate the
defendant's right not to be placed twice in jeopardy may be
appealed before the new trial takes place. Once a defendant is
erroneously subjected to another prosecution, neither an
acquittal nor appellate reversal of a conviction is sufficient to
vindicate his constitutional right not to be placed twice in
jeopardy. We conclude that the right to be free from multiple
prosecution[s], embodied in the double jeopardy clause, can be
adequately protected only by permitting an immediate appeal
from a trial court's denial of relief.
Subsequently, a majority of the Supreme Court “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. Orie, 22 A.3d 1021, 1024 (quoting
Commonwealth v. Haefner, 373 A.2d 1094, 1095 (Pa. 1977) (per
curiam)) (emphasis in Orie). Thereafter, in Brady, supra, our Supreme
Court narrowed the applicability of a Bolden as-of-right appeal.
The Brady Court held that where a trial court makes a written finding
that a double jeopardy motion is frivolous, an automatic Bolden appeal is
impermissible. See Brady, supra at 291. Currently, the comment to
Pa.R.A.P. 313 still retains a cite to Brady and indicates only where an
express finding of frivolousness is found will a collateral appeal be improper.
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Brady also provided a stay procedure in those cases where a defendant
wished to challenge a trial court’s finding of frivolousness. However, the
Brady Court did not identify which appellate court would hear such a
challenge.
This Court later determined in Commonwealth v. Learn, 514 A.2d
910 (Pa.Super. 1986), overruled by Orie, supra, that a stay request had to
be made to the Pennsylvania Supreme Court. The Learn Court also
determined that a remand was required to the trial court because it had not
made a written finding that the double jeopardy motion was frivolous. This
latter aspect of Learn was expressly overruled by Gains, supra.The Gains Court, held, “in view of the fact that we presently have no
written finding by the trial court that appellant's double jeopardy claim is a
frivolous one, we exercise jurisdiction over this appeal.” Id. at 875. It
added, “We now expressly overrule the decision of a panel of this Court in
Commonwealth v. Learn, supra, to the extent that it holds that where a
trial court fails to make a written finding of frivolousness, a remand will be
ordered to afford the trial court an opportunity to determine whether such a
finding should be included in the record.” Id.In light of continued confusion over Brady, our Supreme Court
clarified that decision in Orie, supra and referred the manner in which
double jeopardy motions should be handled to the rules committee. As a
result, the Supreme Court adopted Rule 587(B). That rule reads,
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(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).
The current rule does not state that a trial court’s failure to place on
the record the magic words of “non-frivolous” results in this Court lacking
jurisdiction, nor does the comment to the rule so read. Rather, the trial
court must explicitly find frivolousness in order to trigger a differing
jurisdictional posture. Our Supreme Court has repeatedly cautioned this
Court against reading requirements into our procedural rules that do not
exist by their terms. See Newman Dev. Group of Pottstown, LLC v.
Genuardi's Family Mkts., Inc., 52 A.3d 1233 (Pa. 2012); see also
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Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (chastising this
Court for attempting to create a mandatory procedural rule). The official
note to Pa.R.A.P. 1573, the rule that applies to appealing a determination
that a double jeopardy motion is frivolous, expressly provides, “If a trial
court denies such a motion without expressly finding that the motion is
frivolous, the order is immediately appealable by means of a notice of appeal
under Pa.R.A.P. 313.” Official Note, Pa.R.A.P. 1573. The majority’s position
is inconsistent with this comment. Furthermore, it is not suggested that
neglecting to use the magic words “non-frivolous” removes jurisdiction. The
comment to Rule 587(B)(4) itself states, “Paragraph (B)(4) requires the
judge to make a specific finding whether the motion is being dismissed as
frivolous.” It does not state that the failure to set forth that the motion is
non-frivolous precludes jurisdiction under Pa.R.A.P. 313.
Admittedly, the trial court failed to tell counsel explicitly, although
counsel already was aware of his right to appeal, that Appellant could appeal
under the collateral order rule, Pa.R.A.P. 313. This failure, however, does
not implicate jurisdiction when the attorney files the appropriate appeal in a
timely fashion.2 Indeed, a trial court’s failure to properly inform a
defendant that he must appeal within thirty days of the denial of his post-
2
Nothing in my decision should be read as endorsing a trial court’s neglect
in following our rules of procedure, nor am I attempting to eviscerate or
broaden the rule. Rather, a plain reading of the rule and the record makes it
evident that the trial court did not find Appellant’s motion frivolous. A
remand for a one-sentence order to that effect is unnecessary.
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sentence motion does not implicate our jurisdiction if the attorney timely
appeals. The same applies herein. The trial court’s non-compliance with
Rule 587(B)(6) is harmless precisely because counsel properly appealed and
the court explicitly declined to find Appellant’s motion frivolous.3
Moreover, the majority cannot cite any binding or analogous precedent
in support of its position. The Taylor case simply is not controlling in this
matter because therein the court did not enter on the record any factual
findings or conclusions of law nor did it expressly inform the defendant that
he could appeal after the attorney asked for a finding of non-frivolousness.
Further, although decided before Rule 587, our decision in Gains, supra is
instructive. First, I note that our Supreme Court is presumably aware of
existing law and in fact cited Gains in its most recent double jeopardy case,
Orie, supra. More importantly, Gains is quoted in the comment to Rule
587(B)(4).
At the time of the Gains decision, a written finding of frivolousness
was required to preclude a Bolden automatic appeal of the denial of a
motion to dismiss based on double jeopardy. Rule 587(B) alters that
requirement insofar as it no longer mandates a written finding, and only
3
Appellant in his brief set forth that this Court has jurisdiction over this
appeal pursuant to Commonwealth v. Haefner, 373 A.2d 1094 (Pa.
1977), as well as Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977), and
Commonwealth v. Brady, 508 A.2d 286 (Pa. 1986). He expressly states
that Pa.R.A.P. 313 authorizes, “non-frivolous appeals as of right from
collateral orders of the Court of Common Pleas denying a double jeopardy
claim.” Appellant’s brief at 1.
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requires a record-based determination of frivolousness. However, the Gains
Court also held that in the absence of an express written finding of
frivolousness, a remand to afford the trial court such opportunity was
unwarranted and that the trial court’s silence did not preclude jurisdiction.
Gains, supra at 875.
A similar result should obtain here where the trial court made no
explicit finding of frivolousness on the record and, in fact, instructed
Appellant on multiple occasions that he could appeal after counsel asked for
a finding of non-frivolousness. Instead, the majority essentially re-writes
Rule 587(B)(4) to state that, “In a case in which the judge denies the
motion, the findings of fact shall include a specific finding as to non-
frivolousness. The failure to do so shall result in the appellate court
lacking jurisdiction and require a remand.” Compare Pa.R.Crim.P.
587(B)(4). This is inconsistent with the express language of Rule 587(B),
the spirit and letter of our en banc decision in Gains, and the official
comment to Pa.R.A.P. 1573.
In sum, neither Rule 587(B) nor Pa.R.A.P. 1573, nor any precedent,
compels the majority’s novel reading of Rule 587(B) as mandating a court
place on the record the magic words of non-frivolousness to confer
jurisdiction upon this Court. In my view, this Court has jurisdiction and we
should reach the merits of Appellant’s arguments. I therefore respectfully
dissent.
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