Com. v. Robinson, C. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
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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