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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 AUGUST 07, 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. For the
reasons that follow, we remand the case for the trial court’s compliance with
Rule 587(B) of the Pennsylvania Rules of Criminal Procedure.
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. 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. 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.2 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 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, ___ A.3d ___, 2015 WL 4401559 at *5 (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.
Commonwealth v. Orie, 22 A.3d 1021, 1024-25 (Pa. 2011).
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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).
Recently, in Commonwealth v. Taylor, ___ A.3d ___, 2015 WL
4394254 (Pa. Super. 2015), this Court had the opportunity to interpret Rule
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587(B) in the context of a trial court’s failure to comply with subsections (3)
through (6). Id. at *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. Id. 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.
Id. (footnote omitted).
Regarding the trial court’s failure in Taylor to fully comply with Rule
587(B), this Court held:
Instantly, our review of the record, in particular the
January 27, 2014 argument transcript, reveals the
trial court failed to comply with Rule 587(B)(3)
though (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
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Appellant’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
Appellant’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).
Here, as in Taylor, the trial court failed to render a specific finding in
the record on frivolousness, as required under Rule 587(B)(4). Thus, the
trial court in this case failed to comply with Rule 587(B)(4) through (6).
Because the trial court failed to fully comply with Rule 587(B), we are unable
to decide whether we may exercise jurisdiction over this appeal. See id.;
see also Orie, 22 A.3d at 1024-25. Therefore, 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
memorandum.3
Case remanded. Panel jurisdiction retained.
3
Our retention of jurisdiction over this appeal does not relieve Robinson of
his obligation to comply with Rule 587(B)(5) and Rule 1573 of the
Pennsylvania Rules of Appellate Procedure in the event the trial court
determines his double jeopardy claim to be frivolous.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015
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