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finding that trial court's order denying a double jeopardy motion was immediately appealable in the absence of a finding that the motion was frivolous
Summary of this case from Commonwealth v. FlynnOpinion
No. 375 EDA 2016
04-29-2020
COMMONWEALTH of Pennsylvania, Appellee v. Emily Joy GROSS, Appellant
George W. Westervelt, Jr., Stroudsburg, Brian J. Slipakoff, Philadelphia, Daniel R. Walworth, Philadelphia, Eric R. Breslin, Newark, NJ, for appellant. Elmer D. Christine, Jr., District Attorney, Stroudsburg, Michael Mancuso, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
George W. Westervelt, Jr., Stroudsburg, Brian J. Slipakoff, Philadelphia, Daniel R. Walworth, Philadelphia, Eric R. Breslin, Newark, NJ, for appellant.
Elmer D. Christine, Jr., District Attorney, Stroudsburg, Michael Mancuso, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.
OPINION BY GANTMAN, P.J.:
Appellant, Emily Joy Gross, appeals from the order entered in the Monroe County Court of Common Pleas, which denied her omnibus pretrial motion to dismiss on double jeopardy grounds. We affirm.
Our Supreme Court set forth the relevant facts of this case as follows:
[Ms.] Gross and Daniel Autenrieth began a romantic relationship in early 2009. On May 4, 2009, Autenrieth's estranged wife filed a protection from abuse (PFA) petition against him in
Northampton County where she lived. The court issued a temporary PFA order the same day prohibiting Autenrieth from having contact with his wife or children and evicting him from the marital residence. The same day, deputies from the Northampton Sheriff's office went to Autenrieth's residence (also in Northampton County) to serve the temporary PFA order and to transfer custody of the children to Autenrieth's wife. [Ms.] Gross was present, babysitting the children, and a deputy served the order on her as the adult in charge of the residence. The deputy incorrectly told [Ms.] Gross the temporary PFA order prohibited Autenrieth from possessing firearms. Another deputy explained the PFA order's terms to Autenrieth over the phone. On May 18, 2009, a final PFA order was issued, which prohibited Autenrieth from possessing firearms.
[Ms.] Gross routinely stayed overnight at Autenrieth's residence, but she lived and worked in New Jersey. On May 21, 2009, she attempted to acquire a New Jersey firearm permit but was informed the process would take several months. On May 29, 2009, [Ms.] Gross obtained a Pennsylvania driver's license using Autenrieth's address; within hours, [Ms.] Gross and Autenrieth went to a Berks County store, where [Ms.] Gross used her new license to buy a 9 millimeter handgun. Later, at his residence, Autenrieth showed [Ms.] Gross how to use the gun, offered to clean it for her, then put the gun in its box and stored it and its ammunition above his washer and dryer. This was the last time [Ms.] Gross saw the gun, though a few days later she learned Autenrieth had taken the gun, fired it with a friend, and replaced the ammunition used; [Ms.] Gross made no objection.
On June 7, 2009, Autenrieth took the gun, went to his estranged wife's house, and kidnapped his nine-year-old son at gunpoint. Police were called, Autenrieth fled, and the chase went on for 40 miles, ending with a shoot-out in Monroe County in which Autenrieth killed one Pennsylvania State Trooper and wounded another before being shot to death.
A criminal complaint was filed in Monroe County charging [Ms.] Gross with criminal conspiracy, 18 Pa.C.S. § 903(a) ; firearms not to be carried without a license, [ 18 Pa.C.S.] § 6106(a)(1) (co-conspirator); possession of a firearm prohibited, [ 18 Pa.C.S.] § 6105(a)(1) (accomplice); and lending or giving of firearms prohibited, [ 18 Pa.C.S.] § 6115(a) (accomplice). A preliminary hearing was held January 15, 2010, before a Monroe County magisterial district judge. Among other motions, [Ms.] Gross moved for dismissal of the case for "lack of jurisdiction[.]" Specifically, [Ms.] Gross argued "there [was] no jurisdiction in [the magisterial] district or, in fact, in Monroe County to hear these charges." The judge denied the motion, ..., and bound the charges over to the Monroe County Court of Common Pleas....
On March 3, 2010, [Ms.] Gross filed an omnibus pre-trial motion, which included a "Motion to Dismiss or, in the alternative, Transfer for Improper Venue."1 A hearing on this motion was held May 24, 2010. The Commonwealth did not introduce evidence other than the preliminary hearing transcript and a license to carry firearm certification regarding Autenrieth. Both parties filed briefs to address the venue issue. After considering the evidence and the parties' arguments, the trial court found [Ms.] Gross's "Motion to Dismiss for Improper Venue" dispositive and dismissed the case July 15, 2010, for improper venue. The trial court addressed this motion only; it did
not consider [Ms.] Gross's alternative motion to transfer for improper venue, nor did it address the remaining motions contained in her omnibus pre-trial motion.
1 The omnibus pretrial motion consisted of a Motion for Bill of Particulars; Motion to Compel Pretrial Discovery and Inspection; Motion to Dismiss or, in the alternative, Transfer for Improper Venue; Motion for a Change of Venue or Venire to Avoid Prejudicial Pretrial Publicity; Motion to Quash Criminal Complaint or Return of Transcript, and/or Petition for Writ of Habeas Corpus ; and Motion for Recusal/Appointment of Out–of–County Judge.
Venue was held improper based on a lack of factual connection to Monroe County.2 Specifically, both the trial court and the Superior Court concluded the evidence showed the alleged conspiracy was not reached in Monroe County, [Ms.] Gross committed no acts in furtherance of the conspiracy in Monroe County, and the conspiracy ended in Northampton County. The Commonwealth argues the lower courts erred in finding improper venue, noting all charges filed against [Ms.] Gross were based on conspiracy and accomplice liability and her co-conspirator, Autenrieth, committed an overt act in Monroe County. Alternatively, the Commonwealth contends that even if venue was improper, the trial court should have transferred the proceedings instead of dismissing them.
2 In its Rule 1925(a) opinion, the trial court reiterated dismissal was solely because Monroe County was not a county of proper venue, and not based on any allegation of pre-trial publicity that would inhibit [Ms.] Gross from receiving a fair and impartial trial there.
Commonwealth v. Gross , 627 Pa. 383, 388-90, 101 A.3d 28, 31-32 (2014) (internal citations omitted). In the context of venue as it relates to conspiracy charges, the Supreme Court continued:
At the hearing on the omnibus motion filed by [Ms.] Gross, the Commonwealth submitted the preliminary hearing transcript, supporting its belief that venue in Monroe County was proper. [Ms.] Gross only offered legal argument in response; thus, the Commonwealth's evidence was uncontradicted and constituted the entire factual record relative to [Ms.] Gross's venue challenge. The trial court held [Ms.] Gross could not be prosecuted in Monroe County because the conspiracy between [Ms.] Gross and Autenrieth was reached and completed in Northampton County and Autenrieth's possession of the firearm in Monroe County did not constitute an overt act in furtherance of the criminal agreement. In this, the court misperceived the nature of the charges brought.
The material elements of conspiracy are: "(1) an intent to commit or aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the conspiracy." Commonwealth v. Spotz , 562 Pa. 498, [540-41], 756 A.2d 1139, 1162 (2000) (citation omitted). An "overt act" means an act done in furtherance of the object of the conspiracy. See 18 Pa.C.S. § 903(e) ; Commonwealth v. Weimer , 602 Pa. 33, [39], 977 A.2d 1103, 1106 (2009). Additionally, in connection with questions of venue, this Court noted "a prosecution for criminal conspiracy may be brought in any county where the unlawful combination was formed, or in any county where an overt act was committed by any of the conspirators in furtherance of the unlawful combination."
Commonwealth v. Fithian , 599 Pa. 180, [201-02], 961 A.2d 66, 78 (2008) (citing Commonwealth v. Thomas , 410 Pa. 160, [164], 189 A.2d 255, 258 (1963) ).
The record is sufficient to show a criminal conspiracy between Autenrieth and [Ms.] Gross, under which [Ms.] Gross would purchase a firearm for the purpose of providing Autenrieth with access to a gun he was otherwise prohibited from possessing. Because of this criminal agreement, Autenrieth was able to use the firearm on two occasions, including the day he took the gun and used it in Monroe County. The trial court determined the conspiracy agreement ended May 29, 2009, at the time [Ms.] Gross left the firearm with Autenrieth at his residence in Northampton County. However, the trial court failed to appreciate that the object of the conspiracy articulated by the charges was to provide Autenrieth with unlimited possession and unconditional access to a firearm, and such was not completed or terminated May 29, 2009, but continued as long as [Ms.] Gross allowed Autenrieth to possess her gun. See 18 Pa.C.S. § 903(g)(1) ("[C]onspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired[.]"); Commonwealth v. Evans , 489 Pa. 85, [92], 413 A.2d 1025, 1028 (1980) ("The duration of a conspiracy depends upon the facts of the particular case, that is, it depends upon the scope of the agreement entered into by its members." (...citation omitted)). [Ms.] Gross did not object or withdraw her authorization. Autenrieth's taking the firearm and carrying it constituted the overt act, and that possessory act did not cease when he crossed into Monroe County. Accordingly, the trial court erred in dismissing the conspiracy charges, as the record was sufficient to establish [Ms.] Gross, as co-conspirator, could be found vicariously liable for Autenrieth's possession of the firearm, in Monroe County, and thus, could be prosecuted in that county.
The trial court also erred in finding dismissal was warranted for the counts charging [Ms.] Gross as an accomplice in the crimes of illegal possession of a firearm and lending or giving a firearm. The trial court found [Ms.] Gross could not be an accomplice in Monroe County because Autenrieth, not [Ms.] Gross, possessed the gun there. Also, both the trial court and the Superior Court concluded [Ms.] Gross could not be charged as an accomplice because "there is no evidence that she intended to aid or promote Autenrieth's shootout with the police." Commonwealth v. Gross , No. 2006 EDA 2010, unpublished memorandum at 7, 2011 WL 5111048 (Pa.Super. filed July 13, 2011) (citing Trial Court Opinion, 7/15/10, at 11). This factual statement may be true, but it is irrelevant, reflecting a misapprehension of the charges filed. [Ms.] Gross was never charged as an accomplice in the shooting; rather, she was charged as an accomplice in the illegal possession of a firearm, and the evidence offered was sufficient to prove she could be convicted as an accomplice to such illegal possession in Monroe County.
"An actor and his accomplice share equal responsibility for the criminal act if the accomplice acts with the intent of promoting or facilitating the commission of an offense and agrees or aids or attempts to aid such other person in either the planning or the commission of the offense." Commonwealth v. Cox , 546 Pa. 515, [529], 686 A.2d 1279, 1286 (1996) (citations omitted). There is no minimum amount of assistance or contribution
requirement, for "[i]t has long been established...that intent of the parties is a consideration essential to establishing the crime of aiding and abetting a felony." Commonwealth v. Flowers , 479 Pa. 153, [157], 387 A.2d 1268, 1270 (1978).... Thus, even non-substantial assistance, if rendered with the intent of promoting or facilitating the crime, is sufficient to establish complicity. See Commonwealth v. Pierce , 437 Pa. 266, [268], 263 A.2d 350, 351 (1970) (where assistance "is rendered to induce another to commit the crime and actually has this effect, no more is required." (citation omitted)). Absence or presence at the scene and the participant's role in the complicity are not dispositive of whether accomplice liability exists. See Commonwealth v. Murphy , 577 Pa. 275, 844 A.2d 1228, 1234 (2004) ("[A] defendant cannot be an accomplice simply based on evidence that he...was present at the crime scene." (citation omitted)). Accomplice liability does not create a new or separate crime; it merely provides a basis of liability for a crime committed by another person. See 18 Pa.C.S. § 306.
Because Autenrieth was present with the gun in Monroe County, and [Ms.] Gross aided Autenrieth's illegal possession of that firearm, [Ms.] Gross could be found liable as an accomplice for Autenrieth's illegal possession wherever he was, including Monroe County. Accordingly, we conclude the Commonwealth proved by a preponderance of the evidence that [Ms.] Gross could be prosecuted under all criminal charges in Monroe County. The trial court's finding to the contrary was erroneous.
* * *
In light of the foregoing, we conclude the trial court erred in finding venue improper in Monroe County and in dismissing the case. Order reversed. Case remanded to the trial court for consideration of any unaddressed issues.
Id. at 393-97, 101 A.3d at 34-36 (some internal citations omitted). In sum, the Supreme Court held: (1) the Commonwealth met its burden to prove by a preponderance of evidence that venue in Monroe County was proper on conspiracy and accomplice liability, because the Commonwealth had demonstrated Appellant could be found vicariously liable for Mr. Autenrieth's possession of a firearm in Monroe County; and (2) the record was sufficient to show Appellant conspired with and aided Mr. Autenrieth in the illegal possession of the firearm "wherever he was." Id. The Supreme Court reversed and remanded the matter to the Monroe County Court of Common Pleas for consideration of any unaddressed issues. Id.
While the appeal on venue was pending in state court, the United States Attorney filed an information in the U.S. District Court for the Eastern District of Pennsylvania on November 4, 2009, charging Appellant with making false statements to a federal firearms licensee in violation of 18 U.S.C. § 922(a)(6), and aiding and abetting a prohibited person to possess a firearm in violation of 18 U.S.C. § 922(g)(8) and 18 U.S.C. § 2. Specifically, the federal government alleged Appellant had lied on a required federal document in connection with her purchase of a firearm and then aided and abetted Mr. Autenrieth's possession of the firearm, even though she knew he was not permitted to possess a firearm.
On February 2, 2011, Appellant pled guilty to only one federal charge, i.e. , making false statements to a federal firearms licensee; and the federal authorities dropped the count of aiding and abetting prohibited possession of a firearm. The federal court accepted the plea and sentenced Appellant on May 9, 2011, to seven (7) months' imprisonment followed by three (3) years of supervised release, including a period of home confinement, plus a fine and special assessment of $100.00.
Following our Supreme Court's resolution of the state appeal, the state case was remanded to the Monroe County Court of Common Pleas in 2014, to consider any unaddressed issues. On remand, the trial court held more pretrial hearings on May 4, 2015, May 11, 2015, and September 15, 2015. At each of the pretrial hearings, Appellant focused almost exclusively on her request for recusal of the entire Monroe County bench, or in the alternative, recusal of each successive jurist assigned to the case, on the grounds of local publicity and excessive community pressure, because Appellant alleged that no local jurist could appear impartial.
At the May 4, 2015 hearing, some of the outstanding omnibus pretrial issues were disposed as law of the case, such as improper venue; by agreement, such as request for discovery; held in abeyance, such as a motion for change of venue pending voir dire ; or by briefing, such as the legal issues pertaining to Appellant's motion for a bill of particulars and recusal. The court also heard Appellant's motion for habeas corpus relief for lack of a prima facie case.
The proceedings on May 11, 2015, were for the specific purpose of reinstating a defense motion for recusal on the new ground that defense counsel was assisting in an investigation of issues arising from the court's use of non-shorthand reporters (voice recording reporters) to take notes of testimony of court proceedings. Counsel argued these circumstances could give the impression that President Judge Patti-Worthington was either favoring the defense or "possibly bending over backwards not to give the appearance of impropriety by favoring the Commonwealth." ( See N.T. 5/11/15, at 3.) By order filed on June 9, 2015, President Judge Patti-Worthington denied Appellant's motion to appoint an out-of-county judge but granted Appellant's motion for recusal and reassigned the case to the Honorable Arthur L. Zulick.
After reassignment the Honorable Arthur L. Zulick held a Status Conference on June 26, 2015. On July 16, 2015, [Appellant] filed a new Motion to Recuse, which was granted on July 29, 2015, at which time the case was assigned to [the Honorable Steven M. Higgins].
Following reassignment, [Judge Higgins] scheduled the Status Conference for August 6, 2015, at which time [Appellant] renewed [her] "Motion for Recusal and Appointment of an Out-of-County [J]udge."
(Trial Court Opinion, filed January 15, 2016, at 4).
At the hearing on September 15, 2015, the court declared the issue of recusal of the entire Monroe County bench as having already been denied. Appellant offered nothing unique to sustain her request for the personal recusal of Judge Higgins, who explained he was inclined to deny the motion but would take the request for his individual recusal under advisement. By order filed on September 18, 2015, the court denied Appellant's recusal motion and set a briefing schedule for both sides to file supplemental briefs in support of their positions on the remaining issues Appellant had raised in her omnibus pretrial motion.
On October 16, 2015, Appellant filed a supplemental brief in support of her omnibus pretrial motion and, for the first time, she raised a double jeopardy challenge to the Commonwealth's case. While recognizing the continuing legal concept of "dual sovereignty," Appellant nevertheless argued that the federal and state prosecutions against her derived from the same conduct, related to the same governmental interests, and the federal government's dismissal of the aiding and abetting count collaterally estopped the Commonwealth from prosecuting Appellant for conspiracy. As she did at the habeas corpus hearing, Appellant asserted there was no evidence to show she knew or had any reason to know of any firearm prohibition against Mr. Autenrieth. Appellant concluded she had already served a sentence in federal prison for charges arising from the same allegations presently before the state court, which should be dismissed as a matter of law under 18 Pa.C.S.A. § 111 and its progeny. ( See [Appellant's] Supplemental Brief In Support of Omnibus Pretrial Motion, filed 10/16/15, at 4-8.) Essentially, Appellant relied on the same facts she had raised in her habeas corpus motion and hearing, but she clad them in the different legal theories of double jeopardy and collateral estoppel.
In its supplemental brief in opposition, the Commonwealth responded, inter alia , to the three-part test of Section 111 by stating: (1) Appellant's false statements on ATF Form #4473 (federal firearms transactional record) involved separate conduct and constituted distinct offenses, which included different elements designed to prevent different harms; and (2) the mere fact that some of the evidence used in the federal prosecution might overlap with the state prosecution was not dispositive. ( See Commonwealth's Brief, Supplemental, In Opposition to [Appellant's] Omnibus Pretrial Motions, filed 11/9/15, at 1-8.)
Appellant filed a supplemental reply brief, where she argued again, in relevant part, that the federal and state prosecutions were duplicative, arising from the same facts and addressing the same governmental interests. Appellant concluded: "An objective review of the statutes reveals that the purposes of these laws are the same—to prohibit the possession of firearms by individuals not licensed to possess or prohibited from possessing a firearm, and there is no reading of these statutes which would permit one to find that the statutes were intended to prevent substantially different harms." ( See [Appellant's] Reply In Support of [Appellant's] Omnibus Pretrial Motion, filed 11/30/15, at 2-8.) Given the extensive pretrial proceedings, the trial court denied Appellant's remaining pretrial claims on January 15, 2016, including, as a matter of law, her claims of double jeopardy and collateral estoppel.
Appellant timely filed a notice of appeal on January 22, 2016. By order entered on January 26, 2016, the court directed Appellant to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b). Appellant timely complied on February 16, 2016. On appeal, a three-judge panel of this Court initially reversed the order on double jeopardy grounds and dismissed the case against Appellant. The Commonwealth timely sought en banc review, which this Court granted by order filed on May 12, 2017.
Appellant's sole issue on appeal is as follows:
DID THE TRIAL COURT ERR IN FAILING TO DISMISS THE INFORMATION AGAINST [APPELLANT], WHERE THE INFORMATION ARISES OUT OF THE SAME CONDUCT FOR WHICH [APPELLANT] HAS ALREADY BEEN PROSECUTED FOR, CONVICTED OF AND SENTENCED ON BY THE FEDERAL GOVERNMENT, AND THE COMMONWEALTH DID NOT CARRY ITS BURDEN OF PROVING THAT THE FEDERAL GOVERNMENT'S PRIOR PROSECUTION WAS INTENDED TO PREVENT A SUBSTANTIALLY
DIFFERENT HARM OR EVIL THAN THE COMMONWEALTH'S?
(Appellant's Brief at 3).
As a prefatory matter, Pennsylvania law has traditionally provided a criminal defendant the right to an immediate appeal from an order denying a pretrial motion to dismiss on double jeopardy grounds. Commonwealth v. Orie , 610 Pa. 552, 557–59, 22 A.3d 1021, 1024 (2011). See also Commonwealth v. Haefner , 473 Pa. 154, 156, 373 A.2d 1094, 1095 (1977) (stating: "[D]enial of a pre-trial motion to quash an indictment, where the motion alleges that a second trial will violate a defendant's right not to be placed twice in jeopardy, is a final, appealable order"); Commonwealth v. Minnis , 83 A.3d 1047, 1049 n.1 (Pa.Super. 2014) (en banc ) (stating: "An appeal from a pre-trial order denying double jeopardy protection is final and appealable"); Commonwealth v. Gains , 383 Pa.Super. 208, 556 A.2d 870, 874 (1989) (en banc ) (stating: "The Supreme Court of Pennsylvania has determined that an immediate appeal may be taken from an order denying a pretrial motion to dismiss on double jeopardy grounds"); Commonwealth v. Feaser , 723 A.2d 197, 199 n.2 (Pa.Super. 1999) (stating: " ‘Pre-trial orders denying double jeopardy claims are immediately appealable in the absence of a written finding of frivolousness’ by the hearing court"); Commonwealth v. Davis , 708 A.2d 116, 117 n.1 (Pa.Super. 1998) (stating: "Pretrial orders denying double jeopardy claims are final orders for purposes of appeal"); Commonwealth v. Teagarden , 696 A.2d 169, 170 n.2 (Pa.Super. 1997), appeal denied , 549 Pa. 726, 702 A.2d 1060 (1997) (citing Commonwealth v. Brady , 510 Pa. 336, 508 A.2d 286 (1986) ; Commonwealth v. Wolfe , 454 Pa.Super. 93, 684 A.2d 642 (Pa.Super. 1996) ; Commonwealth v. Breeland , 445 Pa.Super. 147, 664 A.2d 1355 (1995) ) (stating: "Pre-trial orders denying double jeopardy claims are immediately appealable in the absence of a written finding of frivolousness by the trial court that heard the claims. ... Such a rule strikes the appropriate balance between the defendant's protection against being placed in double jeopardy against the public's interest in prompt trials of the criminally accused"); Commonwealth v. Smith , 380 Pa.Super. 484, 552 A.2d 292 (1988), appeal denied , 524 Pa. 596, 568 A.2d 1247 (1989) (noting generally that trial court's denial of pretrial motion to dismiss on double jeopardy claims is immediately appealable, absent written finding that motion is frivolous).
Our Supreme Court outlined the genesis of the right to an immediate appeal from a trial court's pretrial decision on double jeopardy as follows:
Generally, criminal defendants have a right to appeal a trial court's pre-trial double jeopardy determination under Commonwealth v. Bolden , 472 Pa. 602, 373 A.2d 90 (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." [ Haefner, supra at 156, 373 A.2d at 1095 ] (per curiam ) (emphasis added).
Eight years later, in [ Brady, supra ], 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.
In reaching this conclusion, the Brady Court noted that precluding Bolden appeals and automatic stays of retrial upon a written finding that the claim is frivolous still affords the defendant "the opportunity to initially assert his claim before a tribunal and retrial is not permitted unless the claim is shown to the satisfaction of that court to be frivolous." As pertinent here, the Court explained that a second double jeopardy protection was available: "a defendant may challenge the finding of frivolousness in the context of a request for a stay from an appellate court." The contemplated stay procedure provided "at least a preliminary review by an appellate judge of the finding of frivolousness prior to a retrial." Third, Brady noted that appellate review of the merits would be available on direct appeal in the event of a conviction. The Court conceded that it was possible that a meritorious double jeopardy claim could be "overlooked by both a hearing court and the appellate court in which a stay is sought." But, on balance, the Court concluded that this minimal risk was justified by the need for prompt trials and expeditious dispositions. The Court pointed out that the availability of an automatic stay upon filing a Bolden appeal "encourages the use of frivolous appeals as a means of avoiding prosecution." Such "needless delays engendered by frivolous appeals hinder the administration of justice as well as the public interest."
Thus, the Brady Court envisioned a preliminary avenue for limited appellate review of the trial court's written finding that a defendant's double jeopardy challenge was frivolous via a stand-alone stay procedure, which would be unrelated to a pending appeal as of right. The Brady Court did not further address exactly how such stay reviews would proceed. Nor did the Court directly address which appellate court would conduct the review-via -stay, albeit the Court spoke generically of a stay "from an appellate court" and later adverted to "the appellate court in which a stay is sought," without suggesting that all such appeals would proceed directly to this Court.
The Brady Court's failure to explicitly identify which appellate court should hear stay review challenges to a pre-trial finding that a double jeopardy challenge was frivolous became the controlling issue in the first published opinion from the Superior Court to address the Brady procedure. See Commonwealth v. Learn , 356 Pa.Super. 382, 514 A.2d 910, 911–12 (1986), overruled on other grounds by [ Gains, supra ]. In Learn , the panel opined that a stay request under Brady could not be made to that appellate court because there was no appeal pending. In the panel's view, absent a pending appeal, the Superior Court's jurisdiction was not implicated by the trial court's action. Instead, the Learn court concluded that a Brady stay request has to be made directly to this Court. The Learn court did not transfer the stay request to this Court, however, because the trial judge had made no written finding that the double jeopardy motion was frivolous. Instead, the panel remanded to the trial court for that determination.4
4 The remand aspect of Learn was later overruled in Gains . Gains held that a trial court's failure to make a written finding that the motion was frivolous perfected the double jeopardy appeal under Bolden , and no remand was proper or required .
* * *
We believe the most efficacious remedy is to employ the existing procedures of
Chapter[s 13 and] 15 of the Rules of Appellate Procedure and permit a petitioner seeking review of a trial court's finding of frivolousness to file a Petition for Review in the Superior Court, as Petitioner has done here. The centerpiece of [these chapters] is the use of the "petition for review" as the vehicle for implicating the jurisdiction of the appellate court. ...
Given the appropriate use of a petition for review as the vehicle for obtaining the narrow of-right appellate review contemplated by Brady , any desired stay should be sought per the ordinary stay procedure and in conformity with the governing decisional law. See Pa.R.A.P. 1781 (stay pending petition for review); Pennsylvania Pub. Utility Comm'n v. Process Gas Consumers Group , 502 Pa. 545, 467 A.2d 805 (1983). Finally, should the Superior Court overturn the trial court's finding of frivolousness, the petitioner would be free to file a notice of appeal as of right under Bolden . If the intermediate court upholds the finding of frivolousness, any further recourse to this Court is by [Petition for Allowance of Appeal].
We emphasize that the appellate court's consideration of a petition for review in the Brady setting is preliminary in nature. Thus, in a case such as this one, it does not answer the merits of the underlying question of whether the trial court abused its discretion in declaring a mistrial. That question will be answered if the appeal is permitted to go forward under Bolden . Again, at the Brady petition for review stage, the appellate court's focus is on the finding of frivolousness.
Of course, the appellate court's review of the trial court's finding of frivolousness may require some preliminary assessment of the ruling or event giving rise to the double jeopardy challenge—here, Petitioner's challenge to the underlying propriety of the trial court's declaration of a mistrial. Accordingly, we have granted review of the second question raised by Petitioner, as quoted above, so that our remand permits the Superior Court to address this underlying question, to the degree necessary, in order to assess the trial court's finding of frivolousness.
Orie, supra at 557–65, 22 A.3d at 1024-28 (some internal citations and footnotes omitted) (some emphasis added). The Orie Court addressed the right to immediate appeal where the trial court expressly finds the double jeopardy claim is frivolous. Id. at 557–59, 22 A.3d at 1024. Essentially, the Orie Court modified Brady by holding that a defendant who has had a pretrial double jeopardy challenge denied as frivolous could seek interlocutory review of that decision if the defendant filed a petition for permissive review under the applicable rules of appellate procedure. Orie, supra at 561–64, 22 A.3d at 1026-27. Significantly, Orie reinforced the general rule permitting an interlocutory appeal as of right from the denial of a pretrial motion to dismiss on double jeopardy grounds if the trial court made no finding of frivolousness. Id. at 557–59, 22 A.3d at 1024 (stating generally that pretrial orders denying double jeopardy claims are final orders for purposes of appeal).
Consistent with the legal precedent recapped in Orie , an order denying a double jeopardy motion, that makes no finding that the motion is frivolous, is a collateral order under Rule 313 of the Pennsylvania Rules of Appellate Procedure :
Rule 313. Collateral Orders
(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.
(b) Definition. 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 (effective July 4, 2013). Rule 313 is jurisdictional in nature. Commonwealth v. Blystone , 632 Pa. 260 269, 119 A.3d 306, 312 (2015). The Note to Rule 313 states that an established example of a collateral order is an order denying a pretrial motion to dismiss "based on double jeopardy in which the court does not find the motion frivolous." Pa.R.A.P. 313 Note (citing Orie, supra and Brady, supra ). The planned amendment to the official note of Rule 313 continues this precedent and states in relevant part as follows:
Official Note: If an order meets the definition of a collateral order, it is appealed by filing a notice of appeal or petition for review. Pa.R.A.P. 313 is a codification of existing case law with respect to collateral orders.
* * *
Examples include...an order denying a pre-trial motion to dismiss on double jeopardy grounds if the trial court does not also make a finding that the motion to dismiss is frivolous. See Commonwealth v. Brady , 508 A.2d 286, 289–91 (Pa. 1986) (allowing an immediate appeal from denial of double jeopardy claim under collateral order doctrine where trial court does not make a finding of frivolousness); Commonwealth v. Orie , 22 A.3d 1021 (Pa. 2011). An order denying a pre-trial motion to dismiss on double jeopardy grounds that also finds that the motion to dismiss is frivolous is not appealable as of right as a collateral order, but may be appealable by permission under Pa.R.A.P. 1311(a)(3).
Pa.R.A.P. 313, Official Note (effective August 1, 2020). Bearing the relevant version of Rule 313 in mind, along with the planned amendment, Pennsylvania law makes clear that an order denying a double jeopardy motion, which makes no finding that the motion is frivolous, is a collateral order under Rule 313 an immediately appealable. See id.
Instantly, we can answer any jurisdictional query regarding this appeal by direct reference to Rule 313 of the appellate rules, together with Orie, supra , Brady, supra and other longstanding and still viable precedent such as Haefner, supra ; Minnis, supra ; Gains, supra ; Feaser, supra ; Davis, supra ; Teagarden, supra ; Wolfe, supra ; Breeland, supra ; Smith, supra . Here, the trial court denied Appellant's pretrial double jeopardy motion as a matter of statutory law with no finding of frivolousness. Absent a finding that Appellant's claim was frivolous, the trial court's order in this case was immediately appealable as a collateral order. See Pa.R.A.P. 313 Note (stating "If an order falls under Rule 313, an immediate appeal may be taken as of right simply by filing a notice of appeal"); Blystone, supra . Thus, we can state with confidence that this appeal is properly before us for resolution. With respect to Appellant's substantive double jeopardy issue, she argues the state's current prosecution is for the same conduct as her federal prosecution. Appellant also submits the interests served by her prior federal prosecution are substantially the same as the interests being served in the current state prosecution, i.e. , to prevent the dissemination of firearms to persons, like Mr. Autenrieth, who was not permitted to possess firearms because of the danger posed. Appellant insists the "identity of interest" can be drawn from the purposes of the two statutory schemes at issue. Although Appellant concedes the state charges of conspiracy (and accomplice liability) are not brought directly under the Uniform Firearms Act, she contends we should look to the most serious criminal objective of the alleged collusion to decide the Section 111 test for "substantially different" interests. To that end, Appellant states her double jeopardy claim demands more than just a mechanical comparison of the federal and state statutes to ascertain whether the interests protected in the state's case are substantially different from the interests served in the federal case. Appellant maintains the federal government's sentencing memorandum makes clear Appellant's federal prosecution was not just for providing false information when she purchased the firearm, but also for creating the conditions which allowed Mr. Autenrieth to gain possession of her firearm and to use it in his crimes. Even if the interests of the two prosecutions are not completely coextensive, Appellant suggests the interests served by the prior federal and current state prosecutions are substantially alike such that Section 111 and its progeny precludes the Commonwealth's sequential prosecution of Appellant. Appellant concludes the Commonwealth's prosecution violates her right against double jeopardy, and this Court should reverse the trial court's decision to deny relief on this ground and dismiss the charges against Appellant. We disagree.
After the Orie decision, Pa.R.Crim.P. 587 was also amended, effective July 4, 2013, to govern the procedure in the trial court filing and addressing a double jeopardy motion to dismiss; it does not, however, govern or control appellate jurisdiction. See Pa.R.Crim.P. 587. Whether the trial court followed or deviated from Rule 587 does not deprive this Court of appellate jurisdiction; our jurisdiction is conferred under Rule 313 of the appellate rules and enduring precedent. Likewise, Rule 587 defects do not fall under the aegis of the few non-jurisdictional matters appellate courts can raise sua sponte , nonexclusively for example: an indigent petitioner's right to counsel in a first PCRA proceeding and, relatedly, the failure of the trial court to conduct a hearing, per Commonwealth v. Guy Thomas Grazier , 552 Pa. 9, 713 A.2d 81 (1998), to ensure a defendant has knowingly and voluntarily waived his right to counsel for his first PCRA petition; counsel's failure to file a court-ordered concise statement under Pa.R.A.P. 1925(b) in criminal cases; the trial court's lack of original jurisdiction in specific scenarios; the legality of a sentence (which is quasi-jurisdictional to the extent no court has jurisdiction to impose an illegal sentence); and issues of mootness, but not ripeness or standing. Thus, absent proper preservation and development, Rule 587 errors or flaws are subject to the general tenets of waiver on appeal. See Pa.R.A.P. 302(a) (stating generally: "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal"); Pa.R.A.P. 1925(b) (generally waiving issues not properly preserved in court-ordered concise statement); Commonwealth v. Bishop , 217 A.3d 833, 840 (2019) (reiterating proper issue preservation "facilitates an orderly system of justice"; consistent and predictable operation of appellate process depends on issue preservation, which "enables the courts of original jurisdiction, in particular, to correct mistakes and affords opposing parties a fair opportunity to respond" even if trial court is bound by contrary appellate ruling); Commonwealth v. Colavita , 606 Pa. 1, 28-29, 993 A.2d 874, 891 (2010) (reiterating general rule that courts should not reach claims for first time on appeal, or sua sponte raise claims or theories not raised in trial court or on appeal).
Here, Appellant first raised her double jeopardy claim in a supplemental brief and demanded relief as a matter of law. She neither preserved nor raised any issue regarding the trial court's method of resolving her claim. Under the circumstances of this case, any deviations from the Rule 587 procedures are not properly before us for analysis.
"[T]he question of whether a defendant's constitutional right against double jeopardy [would be infringed by a successive prosecution] is a question of law." Commonwealth v. Hallman , 67 A.3d 1256, 1260 (Pa.Super. 2013), appeal denied , 624 Pa. 662, 84 A.3d 1062 (2014). When presented with a question of pure law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Byrd , 209 A.3d 351, 353 (Pa.Super. 2019) (citing Commonwealth v. Vargas , 947 A.2d 777, 780 (Pa.Super. 2008) ); Commonwealth v. Kositi , 880 A.2d 648, 652 (Pa.Super. 2005). See also Commonwealth v. Calloway , 450 Pa.Super. 227, 675 A.2d 743 (1996) (discussing how 18 Pa.C.S.A. § 111 can operate to bar successive prosecutions, which presents question of law subject to plenary review).
Importantly, "The prohibition of double jeopardy, as it relates to subsequent prosecutions, is irrelevant until jeopardy has once attached." Commonwealth v. Arelt , 308 Pa.Super. 236, 454 A.2d 108, 111 (1982). In the context of a plea deal, jeopardy does not attach to crimes, which were dropped as part of a guilty plea agreement. Commonwealth v. Tabb , 491 Pa. 372, 376, 421 A.2d 183, 186 (1980), cert. denied , 450 U.S. 1000, 101 S.Ct. 1708, 68 L.Ed.2d 202 (1981) (describing concept of continuing jeopardy, but holding that concept does not protect defendant against retrial for crimes he pled guilty to, where plea is voided on appeal through defendant's own procurement). By the same token, the dismissal of a charge in federal court, as part of a plea deal, does not represent a conviction or an acquittal that might prevent a subsequent prosecution in state court. Commonwealth v. Schmotzer , 831 A.2d 689 (Pa.Super. 2003), appeal denied , 577 Pa. 695, 845 A.2d 817 (2004).
As a general rule, "The double jeopardy protections afforded by the United States and Pennsylvania Constitutions are coextensive and prohibit successive prosecutions and multiple punishments for the same offense." Commonwealth v. Crissman , 195 A.3d 588, 591 (Pa.Super. 2018). This general rule applies in most cases, with the exception of those cases involving allegations of prosecutorial misconduct, where our state constitution provides greater double jeopardy protection than its federal counterpart. Minnis, supra at 1052 (recapping increased constitutional protection against double jeopardy, where defendant alleges prosecutorial misconduct; outcome of double jeopardy claim depends on nature of alleged misconduct, i.e. , whether misconduct was undertaken in bad faith to prejudice or harass defendant); Feaser, supra at 200, (reiterating that our state constitution extends greater double jeopardy protection in cases of intentional and egregious prosecutorial misconduct). If, however, prosecutorial misconduct is not the basis of the defendant's application for double jeopardy relief, then we employ a unitary double jeopardy analysis to the case at hand. Id.
Our examination of Appellant's claim involves the intersection of specific legal doctrines, 18 Pa.C.S.A. § 111, and relevant case law. To begin, the United States Supreme Court recently upheld longstanding precedent based on the dual-sovereignty doctrine, which allows separate sovereigns to prosecute a defendant for the same conduct, without violating the defendant's constitutional double jeopardy protections. Gamble v. United States , ––– U.S. ––––, 139 S.Ct. 1960, 204 L.Ed.2d 322 (2019). Specifically, the dual-sovereignty doctrine enables a state to prosecute a defendant under state law even if the federal government has prosecuted her for the same conduct under federal law. Id. The rationale for this doctrine is that the federal and state governments are separate and unique authorities, each defining its own laws; therefore, even the same conduct might violate two laws and still comprise two separate offenses. Id. "A close look at [our cases] reveals how fidelity to the Double Jeopardy Clause's text does more than honor the formal difference between two distinct criminal codes. It honors the substantive differences between the interests that two sovereigns can have in punishing the same act." Id. at ––––, 139 S.Ct. at 1966, 204 L.Ed.2d at ––––.
As between the state and the federal jurisdictions or between the jurisdictions of the different states, Pennsylvania law approaches the test for successive prosecutions, in the context of double jeopardy, via 18 Pa.C.S.A. § 111, which provides:
§ 111. When prosecution barred by former prosecution in another jurisdiction
When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:
(1) The first prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is based on the same conduct unless :
(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(ii) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted.
18 Pa.C.S.A. § 111 (emphasis added). Section 111(1)(i) generally involves the following study:
Section 111 derives directly from federal constitutional law, although our Supreme Court recognized an argument could be made that our state constitution provides "greater protection" because Section 111 retained the "same conduct" test, which federal law subsequently overruled. See Commonwealth v. Jones , 542 Pa. 464, 506 n.25, 668 A.2d 491, 511 n.25 (1996), cert. denied , 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996). Nevertheless, we have found no cases which directly hold this proposition.
The first inquiry is whether...the prosecution which the Commonwealth proposes to undertake involves the same conduct for which the individual was prosecuted by the other jurisdiction. If the answer to this question is yes, then we must determine whether each prosecution requires proof of a fact not required by the other, and whether the law defining the Commonwealth offense is designed to prevent a substantially different harm or evil from the law defining the other jurisdiction's offense. If the Commonwealth cannot satisfy both of these requisites, then the prosecution may not proceed.
Calloway, supra at 747 (emphasis in original). As a preliminary matter, "A pretrial motion to dismiss a criminal prosecution based upon a double jeopardy claim imposes certain procedural burdens upon the Commonwealth. [W]hen a defendant raises a non-frivolous prima facie claim that a prosecution may be barred under 18 Pa.C.S.A. § 111, the [Commonwealth] bears a burden to prove by a preponderance of the evidence either that the ‘same conduct’ is not involved, or that a statutory exception to the statutory bar on reprosecution applies." Commonwealth v. Wetton , 405 Pa.Super. 1, 591 A.2d 1067, 1070 (1991), affirmed , 537 Pa. 100, 641 A.2d 574 (1994) (emphasis omitted). A bold claim of "different conduct" will not suffice; the Commonwealth must specifically address this issue in the pretrial litigation. Id. On the other hand, the "same conduct" inquiry requires more than just a similarity of charges in the current and prior prosecutions. Id. A "mere overlap in proof between two prosecutions does not establish a double jeopardy violation." Commonwealth v. Caufman , 541 Pa. 299, 304, 662 A.2d 1050, 1052 (1995).
When a conspiracy charge is at issue, the focus of a "same conduct" analysis under Section 111 is the ultimate object or purpose of the agreement, which might not be the same in both prosecutions. Breeland, supra at 1362, (reasoning federal prosecution for drug distribution conspiracy involved acts which were only peripherally implicated in state prosecution for conspiracy to kill, assault, and/or rob specific individuals; Section 111 did not bar state prosecution). Section 111 does not bar a subsequent conspiracy prosecution if the first prosecution was based on different conduct. Id.
Even before its passage, the concepts underlying Section 111 were subject to a difficult interpretative evolution, beginning with a very broad or descriptive view of the conduct assessed (and the jurisdictional interest involved), whereas later cases employed a more analytical perspective. Compare Commonwealth v. Mills , 447 Pa. 163, 286 A.2d 638 (1971) (plurality) (holding defendant could not be prosecuted for bank robbery and firearms offenses in state court, after his guilty plea to same bank robbery and assault in federal court, where state interests were sufficiently protected in federal prosecution) with Jones, supra (holding defendant's conviction in federal court for conspiracy to possess with intent to distribute cocaine in ongoing criminal enterprise did not preempt state prosecution of defendant for murder and conspiracy to commit murder, although several overt acts alleged in federal case were introduced in state prosecution to prove motive for murder, where conspiracy surrounding murder had been deleted from federal indictment and trial). If the same conduct is involved in the sequential prosecutions, then we next assess whether one prosecution requires proof of a fact, which the other prosecution does not require; we do this evaluation by comparing the elements of the statutes involved. Jones, supra at 506, 668 A.2d at 511 (utilizing historically espoused "same elements" test of Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and United States v. Dixon , 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) ).
See, e.g., Commonwealth v. Traitz , 528 Pa. 305, 597 A.2d 1129 (1991) (holding prosecution for violations of federal Racketeer Influenced and Corrupt Organizations Act (RICO) barred subsequent prosecution under counterpart state statute of Corrupt Organizations Act, where both cases involved same pattern of racketeering activity or same conduct for Section 111 purposes); Commonwealth v. Frank Grazier , 481 Pa. 622, 393 A.2d 335 (1978) (holding prior acquittal in federal court of mail fraud related to arson scheme barred subsequent state trial for substantive crime of arson, where both cases were based on substantially same evidence and federal prosecution in case largely vindicated state's interests); Commonwealth v. Savage , 388 Pa.Super. 561, 566 A.2d 272 (1989) (holding defendant's federal conviction for conspiracy barred state conspiracy charges, where relevant overt acts in federal conspiracy were series of bulk purchases of cocaine for resale and relevant overt act in state conspiracy was single sale of smaller bulk amount of cocaine for resale; Commonwealth failed to prove cases were based on separate conspiracies); Commonwealth v. Mascaro , 260 Pa.Super. 420, 394 A.2d 998 (1978) (holding guilty plea in federal court to mail fraud and false statements, related to defendant's common and continuing scheme of overcharging on service contract, barred state prosecution for theft by deception, deceptive business practices, unsworn falsification to authorities, and criminal conspiracy, where state charges were based on same conduct of overcharging on contract; all statutes were aimed at preventing theft and fraud, so federal prosecution protected state interests). But see Breeland, supra (holding federal prosecution for conspiracy to distribute illegal drugs did not bar state prosecution for conspiracy to kill, assault, or rob two rival drug dealers, because each prosecution was based on different conduct and state conspiracy prosecution only peripherally implicated drug distribution).
Under the "same conduct" test for 18 Pa.C.S.A. § 110, this Court has held that statutory double jeopardy does not bar successive prosecutions if the offenses are based on different acts, even if the offenses occur close in time, as long as there is no "substantial duplication" of factual or legal issues presented. See, e.g., Commonwealth v. Jefferson , 2019 PA Super 302, 220 A.3d 1096 (filed October 9, 2019) ; Commonwealth v. Miller , 198 A.3d 1187 (Pa.Super. 2018) ; Commonwealth v. Kolovich , 170 A.3d 520 (Pa.Super. 2017), appeal denied , 645 Pa. 689, 182 A.3d 429 (2018) ; Commonwealth v. Hockenbury , 446 Pa.Super. 593, 667 A.2d 1135 (1995), affirmed , 549 Pa. 527, 701 A.2d 1334 (1997).
The federal statute relevant to this case provides as follows:
§ 922. Unlawful acts
(a) It shall be unlawful—
* * *
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter
18 U.S.C.A. § 922(a)(6). Section 924 is the companion penalties provision to Section 922(a)(6) and states:
§ 924. Penalties
(a)(1) Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever—
(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;
* * *
shall be fined under this title, imprisoned not more than five years, or both.
(2) Whoever knowingly violates subsection (a)(6)...of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.
18 U.S.C. § 924(a)(1)(A), (a)(2).
Pennsylvania's conspiracy statute states in relevant part:
§ 903. Criminal conspiracy
(a) Definition of conspiracy. —A person is guilty of conspiracy with another
person or persons to commit a crime if with the intent of promoting or facilitating its commission [she]:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime[.]
18 Pa.C.S.A. § 903(a)(1). "The material elements of conspiracy are: ‘(1) an intent to commit or aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the conspiracy.’ An ‘overt act’ means an act done in furtherance of the object of the conspiracy. See 18 Pa.C.S. § 903(e)...." Gross, supra at 393, 101 A.3d at 34.
The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. Even if the conspirator did not act as a principal in committing the underlying crime, [she] is still criminally liable for the actions of his co-conspirators taken in furtherance of the conspiracy.
Commonwealth v. Johnson , 180 A.3d 474, 479 (Pa.Super. 2018), appeal denied , ––– Pa. ––––, 205 A.3d 315 (2019) (quoting Commonwealth v. Murphy , 795 A.2d 1025, 1038 (Pa.Super. 2002), affirmed , 577 Pa. 275, 844 A.2d 1228 (2004) ).
Accomplice liability in Pennsylvania is defined as follows:
§ 306. Liability for conduct of another; complicity
(a) General rule. —A person is guilty of an offense if it is committed by [her] own conduct or by the conduct of another person for which [she] is legally accountable, or both.
(b) Conduct of another. —A person is legally accountable for the conduct of another person when:
* * *
(3) [she] is an accomplice of such other person in the commission of the offense.
(c) Accomplice defined. —A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, [she]:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it...
* * *
(g) Prosecution of accomplice only. —An accomplice may be convicted on proof of the commission of the offense and of [her] complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or
has an immunity to prosecution or conviction or has been acquitted.
18 Pa.C.S.A. § 306(a), (b)(3), (c)(1)(i-ii), (g).
An actor and his accomplice share equal responsibility for the criminal act if the accomplice acts with the intent of promoting or facilitating the commission of an offense and agrees or aids or attempts to aid such other person in either the planning or the commission of the offense. There is no minimum amount of assistance or contribution requirement, for [i]t has long been established...that intent of the parties is a consideration essential to establishing the crime of aiding and abetting a felony. Thus, even non-substantial assistance, if rendered with the intent of promoting or facilitating the crime, is sufficient to establish complicity. Accomplice liability does not create a new or separate crime; it merely provides a basis of liability for a crime committed by another person .
Gross, supra at 395, 101 A.3d at 35 (internal citations omitted) (emphasis added).
Conspiracy and accomplice liability are essentially different legal concepts with diverse requirements for mental culpability. Commonwealth v. Roebuck , 612 Pa. 642, 657, 32 A.3d 613, 622 (2011). "[A]n accomplice is equally criminally liable for the acts of another if [the accomplice] acts with the intent of promoting or facilitating the commission of an offense and agrees, aids, or attempts to aid such other person in either planning or committing that offense." Commonwealth v. Rios , 554 Pa. 419, 427, 721 A.2d 1049, 1053 (1998). Unlike conspiracy, the term "commission of the offense" in the accomplice context focuses on the conduct of the accomplice, not the result of the offense. Roebuck, supra at 652, 32 A.3d at 619. "This diffuses any impression that an accomplice must always intend results essential to the completed crime." Id. (reasoning Section 306 of Pennsylvania Crimes Code derives from Model Penal Code and does not require accomplice necessarily to intend to cause prohibited result; culpability can result from something less than purposeful, such as recklessness; holding defendant could be convicted of third-degree murder under complicity theory). "Again, accomplice liability does not require the defendant to have the conscious objective to cause a particular result when such an outcome is an element of the offense." Id. at 658, 32 A.3d at 623. Accomplice liability simply requires the defendant to have the mental state necessary for the commission of the crime, i.e. , aiding the principal. Id. at 659, 32 A.3d at 624.
The final step in the Section 111 inquiry involves whether the law defining the Commonwealth offense is designed to prevent a substantially different harm or evil than the law defining the other jurisdiction's offense. Calloway, supra . "If the separate statutes are intended to prevent a substantially different harm or evil, then the statutes are meant to protect substantially different government interests." Wetton, supra at 1072,. A prior prosecution of the same conduct does not automatically vindicate all governmental interests. Id.
The primary interest of 18 U.C.S.A. § 922(a)(6) is to keep firearms out of the hands of prohibited purchasers and to protect the integrity of the federal record-keeping requirements needed to assist law enforcement in investigating serious crimes through the tracing of guns to buyers. Abramski v. United States , 573 U.S. 169, 134 S.Ct. 2259, 189 L.Ed.2d 262 (2014). "Before a federally licensed firearms dealer may sell a gun, the would-be purchaser must provide certain personal information, show photo identification, and pass a background check. To ensure the accuracy of those submissions, a federal statute imposes criminal penalties on any person who, in connection with a firearm's acquisition, makes false statements about ‘any fact material to the lawfulness of the sale.’ " Id. at 171, 134 S.Ct. at 2262-63, 189 L.Ed.2d at 171 (stating main interest of statute is to limit gun sales to bona fide purchasers and protect record-keeping purpose of statute; extending statute to "straw purchasers").
Under Pennsylvania law, "The evil against which conspiracy statutes are directed is the illegal agreement or combination for criminal purposes. Separate underlying predicate acts are merely circumstantial proof of the agreement." Breeland, supra at 1362 (quoting Savage, supra at 284 ) (emphasis omitted). "[C]onspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom [s]he conspired[.]" 18 Pa.C.S.A. § 903(g)(1). In the context of "substantially different interests," to support a conclusion that the federal prosecution adequately protected the state's interests, it is not enough to say the statutes involved are all intended to prevent the same general area of crime. Calloway, supra at 748. Instead, "An examination of the specific harm or evil targeted by the statute must be conducted, as the evil to be deterred is one of the pivotal considerations in the Mills interest analysis." Wetton, supra at 1072.
Instantly, Appellant lived and worked in New Jersey, but she decided to obtain a Pennsylvania driver's license and use Mr. Autenrieth's address as her own, so she could purchase a firearm in Pennsylvania. That same day, Appellant purchased a firearm at a Berks County store, where she used her new Pennsylvania driver's license with Mr. Autenrieth's address to complete the federal firearm paperwork.
The Commonwealth charged Appellant with criminal conspiracy (as co-conspirator to firearms not to be carried without a license), accomplice liability (related to possession of a firearm prohibited), and accomplice liability (related to lending or giving of firearms prohibited). Following litigation of Appellant's initial omnibus pretrial motions back in 2010, the trial court dismissed the state claims against Appellant on the ground of improper venue. While that decision was pending on appeal in the state appellate Courts, the federal authorities charged Appellant with making false statements to a federal firearms licensee and aiding and abetting a prohibited person to possess a firearm. Pursuant to an agreement, Appellant pled guilty only to the federal charge of making false statements, and the aiding and abetting charge was dropped. Therefore, jeopardy did not attach to the aiding and abetting charge. See Tabb, supra ; Schmotzer, supra .
After our Supreme Court remanded this case to the trial court, Appellant filed a new pretrial motion to bar prosecution on the basis of double jeopardy, which the court denied. Under the dual sovereignty doctrine, Appellant's wrongdoings constituted separate offenses under federal and state law. See Gamble, supra . Nevertheless, our analysis does not end here.
The threshold inquiry under Section 111 is whether Appellant's state prosecution is based on the "same conduct" as her federal prosecution. According to the background information for the written guilty plea agreement in the federal case, Appellant was charged with making false statements to a federal firearms licensee when Appellant completed an ATF Form 4473 during the purchase of a firearm in Pennsylvania on May 29, 2009. Appellant provided a temporary Pennsylvania photo driver's license and auto insurance card she had obtained earlier that day to a firearms dealer, as proof of her Pennsylvania residence. When Appellant filled out the ATF Form 4473, she listed Mr. Autenrieth's address as her residence, when she knew that information was false, because she did not actually live or reside at Mr. Autenrieth's place in Pennsylvania, nor was she a Pennsylvania resident. Appellant knew at the time of gun purchase that she was a New Jersey resident who lived with her parents in their New Jersey home, where she had her own room, kept most of her clothes, and received her mail. Nevertheless, Appellant signed the form swearing the information she had provided was true, correct, and complete.
What Appellant did after acquiring the firearm, such as storing the firearm at Mr. Autenrieth's house or how she allowed him access to the firearm and how he used the firearm, was not prosecuted. That information was intended solely as background for the seriousness of the fraud charge prosecuted. To be precise, the federal government expressly stated: "The government has no evidence that [Appellant] knew that [Mr.] Autenrieth would engage in this criminal episode or use the gun in this manner." ( See Attachment Five to [Appellant's] Supplemental Omnibus Pretrial Motion-Motion to Dismiss—Double Jeopardy, Collateral Estoppel, 18 Pa.C.S.A. § 111, and Speedy Trial (Government's Sentencing Memorandum, filed 4/19/11, at 4).) The federal prosecutor included these facts (a) to demonstrate that while Appellant's offense was not a violent crime, the ultimate consequences were both violent and deadly; and (b) to ensure a sentence that would deter others from making false statements on the ATF Form 4473. ( Id. at 7-9). See, e.g., United States v. Thomas , 760 F.3d. 879 (2014), cert. denied , 574 U.S. 1102, 135 S.Ct. 1013, 190 L.Ed.2d 883 (2015) (stating district court may consider uncharged or dismissed conduct as relevant factor for sentencing purposes so long as court does not impose sentence above statutory maximum for crime of conviction). The federal sentencing memorandum made clear that the government prosecuted Appellant solely for the fraudulent purchase of the firearm under federal law, and the federal court sentenced Appellant solely on that conviction.
Appellant's illegal purchase of the firearm is not the conduct that actually led to Mr. Autenrieth's appropriation of the firearm. Appellant's reliance on the federal sentencing memorandum, to insist the Commonwealth is prosecuting Appellant for the same conduct is both conclusory and misguided. The Commonwealth did not charge Appellant with Pennsylvania's counterpart statute under 18 Pa.C.S.A. § 6111(g)(4) (stating: "Any person, purchaser or transferee commits a felony of the third degree if, in connection with the purchase, delivery or transfer of a firearm under this chapter, he knowingly and intentionally: (i) makes any materially false oral statement; (ii) makes any materially false written statement, including a statement on any form promulgated by Federal or State agencies; or (iii) willfully furnishes or exhibits any false identification intended or likely to deceive the seller, licensed dealer or licensed manufacturer"). Significantly, our Supreme Court already acknowledged:
The record is sufficient to show a criminal conspiracy between [Mr.] Autenrieth and [Ms.] Gross, under which [Ms.] Gross would purchase a firearm for the purpose of providing [Mr.] Autenrieth with access to a gun he was otherwise prohibited from possessing. Because of this criminal agreement, [Mr.] Autenrieth was able to use the firearm on two occasions, including the day he took the
gun and used it in Monroe County. The trial court determined the conspiracy agreement ended May 29, 2009, at the time [Ms.] Gross left the firearm with [Mr.] Autenrieth at his residence in Northampton County. However, the trial court failed to appreciate that the object of the conspiracy articulated by the charges was to provide [Mr.] Autenrieth with unlimited possession and unconditional access to a firearm, and such was not completed or terminated May 29, 2009, but continued as long as [Ms.] Gross allowed [Mr.] Autenrieth to possess her gun. ...
[Ms.] Gross did not object or withdraw her authorization. [Mr.] Autenrieth's taking the firearm and carrying it constituted the overt act, and that possessory act did not cease when he crossed into Monroe County. Accordingly, the trial court erred in dismissing the conspiracy charges, as the record was sufficient to establish [Ms.] Gross, as co-conspirator, could be found vicariously liable for [Mr.] Autenrieth's possession of the firearm....
The trial court also erred in finding dismissal was warranted for the counts charging [Ms.] Gross as an accomplice in the crimes of illegal possession of a firearm and lending or giving a firearm. The trial court found [Ms.] Gross could not be an accomplice in Monroe County because [Mr.] Autenrieth, not [Ms.] Gross, possessed the gun there. Also, both the trial court and the Superior Court concluded [Ms.] Gross could not be charged as an accomplice because "there is no evidence that she intended to aid or promote [Mr.] Autenrieth's shootout with the police." Commonwealth v. Gross , No. 2006 EDA 2010, unpublished memorandum at 7, 2011 WL 5111048 (Pa.Super. filed July 13, 2011)....This factual statement may be true, but it is irrelevant, reflecting a misapprehension of the charges filed. [Ms.] Gross was never charged as an accomplice in the shooting; rather, she was charged as an accomplice in the illegal possession of a firearm, and the evidence offered was sufficient to prove she could be convicted as an accomplice to such illegal possession....
Gross, supra at 393-95, 101 A.3d at 34-35 (some internal citations omitted).
When Appellant raised a "same conduct" argument on remand in the context of double jeopardy, the Commonwealth opposed the motion to dismiss by: (1) referring to the Supreme Court's decision which is law of the case; (2) stating Appellant provided no real analysis and misstated Pennsylvania law on double jeopardy; (3) stating Appellant failed to analyze or compare the facts underlying the federal charge with the facts underlying the pending state charges; and (4) concluding the evidence used in the federal case was only peripherally related to the state case against Appellant. See Caufman, supra (emphasizing mere overlap of facts in successive prosecutions will not establish double jeopardy violation); Breeland, supra (stating ultimate object or purpose of agreement might not be equivalent in both prosecutions). The certified record supports the Commonwealth's position on all points. Thus, we conclude the federal and state prosecutions in this case are not based on the same conduct; and Appellant's Section 111 double jeopardy claim fails at the outset.
In an abundance of caution, we will give some attention to the remaining Section 111 inquiries (same-elements prong and the substantially different-interests prong). Regarding the same elements test of Section 111, we employ the Blockburger and Dixon analysis. See Jones, supra . The only federal statute at issue for purposes of this double jeopardy analysis involves the making of false or fictitious oral or written statements or furnishing or exhibiting any false, fictitious, or misrepresented identification to a federal firearms licensee to acquire a firearm, where the aiding and abetting charge was dropped as part of the plea agreement and jeopardy did not attach to that offense. See Tabb, supra ; Arelt, supra . Section 922(a)(6) requires proof that a defendant knowingly made a false statement to a federally licensed arms dealer. None of the state statutes at issue contains this fraud element. Compare 18 U.S.C. § 922(a)(6) with 18 Pa.C.S.A. § 903 ( § 6106 related) and § 306 ( §§ 6105 and 6115 related). Likewise, the state charges contain elements not included in the federal prosecution, namely, an illegal agreement for criminal purposes (conspiracy), or promotion or intent to aid in the commission of the underlying state offenses (accomplice liability) related to the unlicensed carrying, possession, and lending of firearms. See 18 Pa.C.S.A. §§ 306, 903 ; Murphy, supra . Thus, the prior federal and the current state charges require different elements of proof. In other words, proof of the federal offense did not establish a commission of the state offenses, and the state offenses will not necessitate relitigating the federal fraud offense. See 18 Pa.C.S.A. § 111(1)(i) ; Calloway, supra . A mere overlap of some of the facts in the two prosecutions does not establish a double jeopardy violation. See Caufman, supra .
Section 6106 states in relevant part:
§ 6106. Firearms not to be carried without a license
(a) Offense defined.—
(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.
18 Pa.C.S.A. § 6106(a)(1)-(2). The relevant portion of Section 6105 is as follows:
§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
* * *
(c) Other persons.— In addition to any person who has been convicted of any offense listed under subsection (b), the following persons shall be subject to the prohibition of subsection (a):
* * *
(6) A person who is the subject of an active final protection from abuse order issued pursuant to 23 Pa.C.S. § 6108, is the subject of any other active protection from abuse order issued pursuant to 23 Pa.C.S. § 6107(b), which provided for the relinquishment of firearms during the period of time the order is in effect.... This prohibition shall terminate upon the expiration or vacation of the order or portion thereof relating to the relinquishment of firearms.
18 Pa.C.S.A. § 6105(a)(1), (c)(6). Section 6115 in pertinent part states:
§ 6115. Loans on, or lending or giving firearms prohibited
(a) Offense defined.— No person shall make any loan secured by mortgage, deposit or pledge of a firearm, nor, except as provided in subsection (b), shall any person lend or give a firearm to another or otherwise deliver a firearm contrary to the provisions of this subchapter.
18 Pa.C.S.A. § 6115(a).
Finally, the law defining the Commonwealth's charges is designed to avert a substantially different harm or evil than the federal offense. See 18 Pa.C.S.A. § 111(1)(i) ; Calloway, supra . Section 922(a)(1) seeks to limit gun sales to bona fide purchasers and to protect the integrity of the federal record-keeping requirements needed to assist law enforcement in investigating serious crimes through the tracing of guns to buyers. See Abramski, supra . In contrast, the state charge of conspiracy is directed at the illegal agreement or combination for criminal purposes, in this case the illegal possession, use, and lending of firearms. See 18 Pa.C.S.A. § 903 ; Breeland, supra . The state's accomplice liability seeks to prevent the aid, solicitation, or agreement in the planning or commission of a related criminal offense, but it does not necessarily involve the ultimate result of the related offense. See 18 Pa.C.S.A. § 306 ; Cox, supra . Importantly, the Commonwealth did not charge Appellant with a violation of the correlative state offenses of Section 6116 (relating to false evidence of identity) or Section 4904 (relating to unsworn falsification to authorities).
Section 6106 seeks to prevent the unlicensed possession of a firearm in this Commonwealth. Commonwealth v. Toomer , 159 A.3d 956, 960 (Pa.Super. 2017), appeal denied , 642 Pa. 431, 170 A.3d 979 (2017). The purpose of Section 6105 is to "protect the public from convicted criminals who possess firearms...." Commonwealth v. Gillespie , 573 Pa. 100, 105, 821 A.2d 1221, 1224 (2003), cert. denied , 540 U.S. 972, 124 S.Ct. 442, 157 L.Ed.2d 320 (2003). See also Commonwealth v. Williams , 151 A.3d 1113, 1116 (Pa.Super. 2016), appeal denied , 641 Pa. 737, 169 A.3d 568 (2017) (stating: "The clear purpose of [Section] 6105 is to protect the public from convicted criminals who possess firearms, regardless of whether the previous crimes were actually violent..."). Section 6115 aims to prohibit all lending of firearms, with some exceptions, even if the lender legally possesses the firearm. Commonwealth v. Corradino , 403 Pa.Super. 251, 588 A.2d 936, 940 (1991).
We cannot step back so far that we lose proper perspective and blur the differences among all of the statutes at issue simply because the statutes are related to firearms. As between the federal statute and the Pennsylvania statutes at issue, each requires proof of a fact the other does not and each intends to prevent a substantially different harm or evil, even though the statutes involve firearms generally. Said another way, the federal and state statutes prosecuted might have overlapping purposes but their interests are plainly distinct. Thus, we decline to disturb the court's ruling on Appellant's motion to dismiss. See 18 Pa.C.S.A. § 111(1)(i) ; Calloway, supra .
Due to our disposition, we decline to distinguish or overrule Williams, supra .
Further, the federal government dropped the charge of aiding and abetting as part of Appellant's plea deal in federal court, so the Commonwealth is not "collaterally estopped" from charging Appellant under the theories of conspiracy and accomplice liability related to Mr. Autenrieth's access to or possession and use of Appellant's firearm, as these issues played no part in her federal guilty plea. See Teagarden, supra at 171 (stating collateral estoppel will bar subsequent prosecution only if issue in both prosecutions is sufficiently similar and sufficiently material, and issue was litigated and necessarily decided in first action).
Based upon the foregoing, we have interlocutory jurisdiction under Rule 313 of the appellate rules over this timely appeal from the order denying Appellant's double jeopardy motion to dismiss. We further hold that the pending state charges in this case are not based on the "same conduct" as the prior federal prosecution, so Appellant's Section 111 double jeopardy claim fails at the outset. Appellant's Section 111 claim also fails the remaining prongs of the statutory test. As presented, the trial court correctly denied Appellant's motion to dismiss on double jeopardy grounds. Accordingly, we affirm, albeit on a slightly different basis, and remand for further proceedings. See Commonwealth v. Reese , 31 A.3d 708, 727 (Pa.Super. 2011) (en banc ) (stating appellate court may affirm order of trial court on any basis if ultimate decision is correct).
Order affirmed; case remanded for further proceedings. Jurisdiction is relinquished.
President Judge Emeritus Bender, Judge Bowes, Judge Panella, Judge Lazarus, and Judge Olson join this opinion.
Judge Olson files a concurring opinion in which President Judge Emeritus Bender and Judge Bowes join.
Judge Stabile files a dissenting opinion in which Judge Shogan and Judge Dubow join.
Judge Dubow files a dissenting opinion in which Judge Shogan and Judge Stabile join.
CONCURRING OPINION BY OLSON, J.:
I join the learned majority's opinion in full. However, I write separately to address some concerns that the learned dissents have ably expressed.
The learned dissents view compliance with Pennsylvania Rule of Criminal Procedure 587 as a prerequisite for appellate jurisdiction. According to the dissenters, Rule 587 implicates our jurisdiction because the trial court's denial of a defendant's pre-trial double jeopardy motion only qualifies as a collateral order where "a trial court [makes a] factual finding[ ] that [the] double jeopardy motion is not frivolous ." Judge Stabile's Dissenting Opinion at *6 (emphasis added); see also Judge Dubow's Dissenting Opinion at *6 ("[i]f the trial court finds the [defendant's double jeopardy] motion to have merit, a defendant may appeal pursuant to Pa.R.A.P. 313"). From this starting point, the dissenters posit that, since our jurisdiction is not perfected until the trial court determines that the double jeopardy motion is "not frivolous," and since Rule 587 provides the mechanism by which the trial court determines whether the motion is or is not frivolous, compliance with Pennsylvania Rule of Criminal Procedure 587 is a precondition for appellate jurisdiction.
However, and respectfully, I believe that the dissenters' starting point is erroneous, as it is contrary to our Supreme Court's holdings, and that this faulty starting point corrupts their entire analysis.
In Commonwealth v. Orie , the Pennsylvania Supreme Court examined the historical derivation and the current status of a defendant's right to appeal the denial of his or her pre-trial motion to dismiss on double jeopardy grounds. As the Orie Court explained:
Generally, criminal defendants have a right to appeal a trial court's pre-trial double jeopardy determination under Commonwealth v. Bolden , 472 Pa. 602, 373 A.2d 90 (1977) (plurality opinion). While Bolden was a plurality decision, a per curiam decision by the [Pennsylvania Supreme] Court shortly thereafter made clear that a [Supreme] 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 , 473 Pa. 154, 373 A.2d 1094, 1095 (1977) (per curiam ) (emphasis added).
Eight years later, in [ Commonwealth v. Brady , 510 Pa. 336, 508 A.2d 286 (1986), the Pennsylvania Supreme] 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.
In reaching this conclusion, the Brady Court noted that precluding Bolden appeals and automatic stays of retrial upon a written finding that the claim is frivolous still affords the defendant "the opportunity to initially assert his claim before a tribunal and retrial is not permitted unless the claim is shown to the satisfaction of that court to be frivolous." ...
[T]he Brady Court [also] envisioned a preliminary avenue for limited appellate review of the trial court's written finding that a defendant's double jeopardy challenge was frivolous via a stand-alone stay procedure, which would be unrelated to a pending appeal as of right.
Commonwealth v. Orie , 610 Pa. 552, 22 A.3d 1021, 1024-1025 (2011).
Thus, as the Orie Court explained, an order denying a pre-trial motion to dismiss on double jeopardy grounds is, as a general matter, immediately appealable. An exception to this general rule of appealability exists if, but only if, the trial court "makes a written statement finding that the pre-trial double jeopardy challenge is frivolous." Id. ; see also Brady , 508 A.2d at 291 ("an appeal from the denial of a motion to dismiss on double jeopardy grounds should not be permitted where the hearing court has considered the motion and made written findings that the motion is frivolous. Absent such a finding, an appeal may be taken from the denial of the motion").
Indeed, the Pennsylvania Supreme Court recently adopted and published an amendment to the official note to Pennsylvania Rule of Appellate Procedure 313, governing collateral orders, which will become effective August 1, 2020. The amended official note reads:
Pennsylvania appellate courts have found a number of classes of orders to fit the collateral order definition. ... Examples include ... an order denying a pre-trial motion to dismiss on double jeopardy grounds if the trial court does not also make a finding that the motion to dismiss is frivolous . See Commonwealth v. Brady , 510 Pa. 336, 508 A.2d 286, 289–91 (1986) (allowing an immediate appeal from denial of double jeopardy claim under collateral order doctrine where trial court does not make a finding of frivolousness); Commonwealth v. Orie , 610 Pa. 552, 22 A.3d 1021 (2011). An order denying a pre-trial motion to dismiss on double jeopardy grounds that also finds that the motion to dismiss is frivolous is not appealable as of right as a collateral order, but may be appealable by permission under Pa.R.A.P. 1311(a)(3).
Pa.R.A.P. 313 note (effective August 1, 2020) (emphasis added).
The amended note clarifies that an order denying a pre-trial motion to dismiss on double jeopardy grounds is immediately appealable as a collateral order unless the trial court makes a written finding that the motion to dismiss is frivolous . See id.
Finally, the note to Pennsylvania Rule of Appellate Procedure 1573, which is effective until August 1, 2020, repeats this principle of law, by stating: "[i]f a trial court denies [a motion to dismiss on double jeopardy grounds] 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." Pa.R.A.P. 1573 note (emphasis added). Therefore, I believe that the dissenters are incorrect in concluding that the denial of a double jeopardy motion is not appealable under Rule 313 unless the "trial court [makes a] factual finding[ ] that [the] double jeopardy motion is not frivolous." Rather, under our Supreme Court's decisions in Bolden , Haefner , Brady , and Orie and, under Pennsylvania Rule of Appellate Procedure 313, the trial court's denial of a pre-trial double jeopardy motion is immediately appealable as a collateral order unless the trial court determines that the motion is frivolous .
When starting with the correct viewpoint—the viewpoint required by our Supreme Court's precedent, the amended note to Rule 313, and the note to Rule 1573 —it is apparent that compliance with Pennsylvania Rule of Criminal Procedure 587 is not a precondition to our jurisdiction, as our jurisdiction is perfected upon appeal—unless the trial court makes a written finding that the motion is frivolous.
Contrary to Judge Stabile's statement, this jurisdictional issue does not make compliance with Rule 587 "optional" with the trial court. See Judge Stabile's Dissenting Opinion at *6. To be sure, Rule 587 delineates the mandatory procedure by which the trial court must hear and decide a double jeopardy motion. If a trial court violates Rule 587, the parties are free to raise this issue on appeal. It is my belief that the trial court violated Rule 587 in this case. However, the parties in this case did not assert any claim that the trial court violated Rule 587 and the existence of a procedural mistake by the trial court cannot, in and of itself, divest this Court of subject matter jurisdiction where our jurisdiction is otherwise properly established. C.f. Commonwealth v. Jones , 593 Pa. 295, 929 A.2d 205, 212 (2007) ("[t]he existence of a procedural mistake in and of itself ... does not divest the trial court of subject matter jurisdiction").
In my view, the trial court failed to comply with the terms of Rule 587 in denying Appellant's motion to dismiss on the basis of double jeopardy. Rule 587 states in relevant part:
(B) Double Jeopardy
(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 the 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)(1)-(6) (emphasis added). Pursuant to this rule, a hearing on the record is mandatory when a defendant files a motion to dismiss on the basis of double jeopardy. At the conclusion of the hearing, the trial court is required to make a specific finding on the record as to whether the motion is granted or denied. If it is denied, the trial court must make an express finding on the record as to whether the motion is frivolous. The trial court's determination of whether the motion is frivolous is mandatory as the trial court must then advise the defendant on the record as to his or her appellate rights. If the motion is deemed to be frivolous, the trial court shall advise the defendant that he or she may file a petition for review. If the motion is not deemed to be frivolous, the trial court shall advise the defendant that the order is deemed to be a collateral order and he or she may seek an immediate appeal.
It is my view that, in this case, the trial court erred in not holding a hearing on the record, in failing to make the express findings on the record as to frivolousness and in failing to advise Appellant of her appellate rights. Accordingly, I believe that Appellant could have appealed on the basis that the trial court failed to follow the dictates of Rule 587. However, Appellant did not raise this issue on appeal and this procedural rule violation is not an issue which we may raise sua sponte . See Commonwealth v. Colavita , 606 Pa. 1, 993 A.2d 874, 891 (2010) (holding that, generally, "[w]here the parties fail to preserve an issue for appeal, the Superior Court may not address that issue sua sponte ") (quotations and citations omitted); see also In re Estate of Tscherneff , 203 A.3d 1020, 1027 (Pa. Super. 2019) (noting that there are only "a few discrete, limited non-jurisdictional issues that courts may raise sua sponte ").
Although the trial court failed to follow Rule 587, such failure does not deprive this Court of jurisdiction. Instead, jurisdiction is conferred upon this Court as the order entered was a collateral order pursuant to Pennsylvania Rule of Appellate Procedure 313 and our Supreme Court's holdings in Bolden , Haefner , Brady , and Orie .
As of January 7, 2020, Rule 1573 was repealed. Permission to appeal the denial of a pretrial double jeopardy motion is now a part of Pa.R.A.P. 1311. The amendment passed on January 7, 2020, is effective May 1, 2020.
Rule 587 is not unique in requiring the trial court to make a factual determination that affects a party's appellate rights and our jurisdiction. Pa.R.A.P. 341(c), which addresses whether a trial court order is a final order when the trial court's order only impacts some of the parties or claims, requires the trial court to make a determination about whether "an immediate appeal would facilitate a resolution of the entire case." Pa.R.A.P. 341(c). If the trial court makes that determination, a party has the right to file a petition for review with this Court. Pa.R.A.P. 341(c)(4).
Pennsylvania Rule of Appellate Procedure 313 and our Supreme Court's precedent define the appealability of the order in this case—and, as the majority correctly holds, the order is appealable because the trial court denied Appellant's pre-trial motion to dismiss on double jeopardy grounds and the trial court did not make a written finding that the motion was frivolous. Orie , 22 A.3d at 1024-1025 ; Pa.R.A.P. 313 ; see also Bolden , 373 A.2d at 105 (plurality); Haefner , 373 A.2d at 1095 (per curiam ); Brady , 508 A.2d at 291. Pennsylvania Rule of Criminal Procedure 587 is inapplicable to the issue of whether this Court has jurisdiction in the case at bar and should not serve as the touchstone for any jurisdictional analysis here.
President Judge Emeritus Bender and Judge Bowes join the concurring opinion.
DISSENTING OPINION BY STABILE, J.:
I join the dissent of my respected colleague Judge Dubow, but write separately to emphasize why I believe the Majority's view errs regarding the jurisdictional importance of the 2013 amendments to Rule 587 to determine whether this Court has jurisdiction to hear an appeal from the denial of a pretrial double jeopardy motion.
Prior to the 2013 amendments to Pa.R.Crim.P. 587, the rule simply provided:
(1) Upon motion and a showing that an information has not been filed within a reasonable time, the court may order dismissal of the prosecution, or in lieu thereof, make such other order as shall be appropriate in the interests of justice.
(2) The attorney for the Commonwealth shall be afforded an opportunity to respond.
In 2013, Rule 587 was greatly expanded to include Paragraph (B) to provide a detailed procedure to address motions to dismiss on double jeopardy grounds. I repeat those provisions below by way of comparison to illustrate the magnitude and detail of those changes from prior practice as to how pretrial double jeopardy motions are to be decided. As adopted by our Supreme Court, Paragraph (B) now unambiguously provides:
(B) Double Jeopardy.
(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 (emphasis added). As is apparent, the changes to Rule 587 were significant. Prior procedure was defined by case law. The amended rule replaces that case law and provides direction, detail, and certainty to address how appellate jurisdiction is to be perfected or denied following disposition of a double jeopardy motion.
The rule is unambiguous: a trial court is obligated to hold a hearing and thereafter make express findings and conclusions of law as to whether or not the double jeopardy motion is frivolous. After making those findings, a court is required to advise a defendant as to his or her appeal rights. If the court's findings are that the motion is not frivolous, or in other words, has merit, the order qualifies as a collateral order subject to immediate appeal under Pa.R.A.P. 313. If the findings are that the motion is frivolous, that being it has no merit, then the order does not qualify as collateral and any attempt to appeal must proceed by permission under Pa.R.A.P. 1573.1 A petition under Chapter 15, however, does not stay trial court proceedings. See Pa.R.A.P. 1701(d).
I offer several observations regarding Paragraph (B) of this rule. First, after hearing, under Paragraph (B)(4), it is mandatory that the trial court make specific findings as to frivolousness. This mandate is not limited to instances where the motion is deemed to be frivolous. The court is to make findings as to whether the motion has merit or whether it is frivolous. Second, the obligation to make specific findings one way or the other is corroborated by and reinforced by Paragraphs (5) and (6), which direct the court to advise a defendant as to his or her rights when the motion is frivolous or when it has merit. When the court determines the motion is frivolous, a defendant is to be advised that appeal may be permitted only by a petition for review. Where the motion is deemed to have merit, a defendant is to be advised that the order is immediately appealable as a collateral order. Third, under Paragraph (6), the trial court's findings allow an order to be appealed as of right as a collateral order when the motion is found to have merit. Finally, and most importantly, the rule as written does not admit an interpretation, as held by the Majority, whereby it is presumed the denial of a pretrial double jeopardy motion is appealable as a collateral order, unless there is a finding the motion is frivolous. An interpretation that defaults to a meritorious motion in the absence of a finding that the motion is frivolous violates the plain language of the rule and rewrites its terms by case law.
Both the learned Majority and Concurrence admit that the trial court failed to make a finding of frivolousness. Majority Opinion at 20; Concurring Opinion at 5 n. 1. The Concurrence is more pointed in this regard, as it notes the trial court erred not only in failing to make express findings on the record as to frivolousness, but also in failing to hold a hearing on the record, and in failing to advise the Appellant of her appeal rights. Id. The unanimous agreement in this Court that there was a failure to comply with Rule 587 brings into focus where our views diverge; that being whether the failure to make findings under Rule 587 deprives this Court of jurisdiction to hear the denial of a pretrial double jeopardy motion as a collateral order. Like my learned colleague Judge Dubow, I too believe this failure precludes this Court from having jurisdiction to hear an appeal until the necessary trial court findings are made.
The Majority overlooks the importance of Rule 587 to establishing jurisdiction in this Court because our jurisdiction is dependent upon facts found by the trial court. The factual findings of a trial court establish the predicate that determines whether we have jurisdiction to entertain a double jeopardy appeal as a collateral order. This necessarily requires the trial court, after hearing, to review the unique facts underlying the charges and prior proceedings against a defendant to arrive at findings to support a decision regarding frivolousness, and hence, a defendant's appeal rights. As an appellate court, we do not make factual findings. See Commonwealth v. Grant , 572 Pa. 48, 813 A.2d 726, 734 (2002) ("appellate courts do not act as fact finders"). Absent findings from the trial court, we cannot determine whether we have jurisdiction to accept an appeal as a collateral order under Rule 313. While it is true that prior to 2013, denial of a motion was immediately appealable unless there was a finding the motion was frivolous, the amendments to Rule 587 changed that to require identification of the factual bases that demonstrate whether the motion has merit or not. This Court repeatedly reminds litigants that we are an error-correcting court and that we must defer to facts found at the trial level if supported by the record. On countless occasions, we reject appeals because we must defer to findings made at the trial court level. Yet, in this instance, the Majority concludes we can surmise a trial court would make factual findings that a double jeopardy motion is not frivolous if it fails to make those findings to support jurisdiction under Rule 313. The effect of the Majority's decision is to rewrite Rule 587 by decisional case law to provide that the rule is optional. In essence, the Majority would presume jurisdiction in the absence of findings.
In Commonwealth v. Learn , 356 Pa.Super. 382, 514 A.2d 910 (1986), we held 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. This remand aspect of Learn was subsequently overruled by this Court in Commonwealth v. Gains , 383 Pa.Super. 208, 556 A.2d 870 (1989) (en banc ) (citing Commonwealth v. Brady , 510 Pa. 336, 508 A.2d 286 (1986) ). I note only that this Court did not have the benefit of any subsequent case law or rule revision at the time Gains was decided. In my view, the 2013 amendments to Rule 587 are aligned with our decision in Learn .
The only case that has the same facts as this case, i.e. , where the trial court was silent on the issue of frivolousness, is Commonwealth v. Gains , 383 Pa.Super. 208, 556 A.2d 870, 874 (1989). In that case, the Superior Court held that the trial court's silence meant that the appellant had the automatic right to appeal. The Supreme Court, however, promulgated Rule 587 in 2013, years after the decision in Gains. Because Rule 587 requires the trial court to make a determination of whether the motion is frivolous, I believe Rule 587 supersedes the holding in Gains.
The rule makes it mandatory for a trial court to make findings one way or the other as to whether a motion is frivolous. Simply because a trial court does not make a finding as to frivolousness does not mean the motion has merit so that we may consider the appeal as collateral and appealable as of right under Rule 313. The failure to make findings means only we do not know if the trial court considers the motion to be frivolous or to be meritorious. Without a determination as to frivolousness by the trial court, we are unable to determine whether we have jurisdiction to entertain an appeal as of right. This is not to say that we could not review the record and make a frivolousness determination, but doing so would violate our jurisdiction and transform us from an appellate court to a trial court. Because Rule 587(B) now mandates that the trial court determine whether an appeal may be by right or by permission, we no longer may presume jurisdiction under Rule 313, as may have been the case in prior practice as defined by then-extant case law.
The Majority reaches the conclusion that we have jurisdiction by default to hear this appeal under Rule 313 based upon old case law that pre-dates the 2013 amendments to Rule 587. This reasoning fails to acknowledge the sea change the 2013 amendments made to considering these motions and to clarifying jurisdiction. Both the Majority and the Concurrence ably recap the development of the appealability of pretrial double jeopardy motions from Commonwealth v. Bolden , 472 Pa. 602, 373 A.2d 90 (1977) (plurality opinion), that held pretrial orders denying double jeopardy claims generally are final orders for appeal purposes, through Commonwealth v. Orie , 610 Pa. 552, 22 A.3d 1021 (2011), which clarified the prior practice of engaging in stay proceedings to be by a petition for review to challenge a denial that found a motion to be frivolous. However, the Majority fails to recognize that our Supreme Court in Orie directed that both the Criminal Rules and Appellate Rules Committees reevaluate this pretrial procedural framework. In fact, they did and the rule was changed.
The March 7, 2012 final report of the Criminal Procedure Rules Committee that proposed the adopted 2013 amendments to Rule 587 explains the rationale behind adopting those amendments. The Committee reported:
The Supreme Court in Commonwealth v. Orie , 610 Pa. 552, 22 A.3d 1021 (2011), clarified the appropriate procedure for an appellate court to follow when a trial court dismisses a defendant's pretrial double jeopardy challenge as frivolous. The Court asked the Appellate Court Procedural Rules Committee and the Criminal Procedural Rules Committee to evaluate the Court's proposed procedural framework for possible further refinement.
During the Committees' discussions of the Orie case and the Court's directive, in addition to considering the appellate procedures that should apply when a judge determines that a pretrial motion to dismiss on double jeopardy grounds is frivolous, the members also noted that there is no uniformity in how motions to dismiss on double jeopardy grounds currently are handled at the trial level. They reasoned this lack of uniformity contributes to the confusion with regard to challenging the dismissal of these motions in the appellate courts. The Committees therefore agreed that it would be helpful to the bench and bar if the Criminal Rules would be amended to provide the procedures in the court of common pleas when the defendant files a motion to dismiss based on double jeopardy grounds.
The Committees determined the procedures governing motions to dismiss on
double jeopardy grounds, in terms of the importance of protecting a defendant's rights, of creating a record at the trial level for purposes of appeal and preserving all parties' positions, and of ensuring the defendant understands his or her appeal rights, most closely compare to the procedures for a motion to suppress in Rule 581. Specifically, the procedures that, inter alia :
require that the motion state specifically and with particularity the grounds for the motion and the facts supporting the motion;
require a hearing on the record in open court; and
require the judge to make findings of fact and conclusions of law on the record at the conclusion of the hearing,
also should govern the procedures when a motion to dismiss on double jeopardy grounds is filed.
The proposed new procedures would be added to Rule 587 (Motion for Dismissal) as new paragraph (B). Paragraph (B)(1) requires that the motion state specifically and with particularity the basis for the claim of double jeopardy and the facts supporting the claim. This requirement also is comparable to Rule 575(A)(2)(c).
Paragraph (B)(2) requires that there be a hearing conducted in open court. The Committees reasoned that a hearing on the record is vital to preserve the parties' positions. As elaborated in the Comment , the "hearing" in this context may include taking testimony, taking testimony and presenting arguments, or merely presenting arguments as the judge determines necessary in a given cases.
Paragraph (D)[sic ](3) requires that the judge enter on the record findings of fact and conclusions of law at the conclusion of the hearing and issue an order granting or denying the motion. Paragraph (D)[sic ](4) adds the requirement that if the judge denies the motion, the judge also must make specific findings as to frivolousness. The members noted, anecdotally, that frequently judges will deny the motion to dismiss on double jeopardy grounds and not make a finding with regard to frivolousness until a defendant challenges the denial of the motion, and that some judges do not explain the basis for finding the motion frivolous. Recognizing that these practices are another source of the confusion and of the problems with challenging the denial of these motions, and because the correct avenue of appeal in cases involving motions to dismiss based on double jeopardy grounds depends on whether there has been a finding of frivolousness, the proposal requires the trial judge to make a specific finding as to frivolousness at the time the judge decides the double jeopardy motion, and that there must be a record made of the judge's reasons for his or her findings. Furthermore, the Rule 587 Comment would be revised to include a cross-reference to Commonwealth v. Gains , 383 Pa. Super. 208, 217, 556 A.2d 870, 874 (1989), to provide guidance about what constitutes a frivolous claim.
March 7, 2012, Criminal Procedure Rules Committee, Motion to Dismiss on Double Jeopardy Grounds, Report at 9-11 (footnotes and headings omitted) (emphasis added). This report emphasizes that as of 2013, the correct avenue of appeal depends on the findings of the trial court .
I recognize that these reports are not binding, but like notes and comments to rules, I believe the report may be cited for persuasive value, and in particular for this case, for the history that precipitated the change to Rule 587. See Commonwealth v. Byrd , 250 Pa.Super. 250, 378 A.2d 921, 922 (1977) (although committee comments are not binding, they may be considered as effective aids when interpreting the meaning of rules and amendments thereto) and Commonwealth v. Reeb , 406 Pa.Super. 28, 593 A.2d 853, 856 (1991) (comments by the Supreme Court's criminal rules committee are not binding, although those comments may be considered as effective aids in interpreting the meaning of the rule) (citations omitted).
I note that the existing Comment is identical to the proposed Comment, but I address the proposed Comment because that is the Comment upon which the Majority relies.
In response to the United States Supreme Court's ruling in Abney v. United States , 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), our Supreme Court in Commonwealth v. Brady , 510 Pa. 336, 508 A.2d 286 (1986), citing the Court of Appeals for the Fifth Circuit with apparent approval, referenced that court's rule designed to prevent the use of frivolous double jeopardy appeals as a dilatory tactic. As described by the Fifth Circuit,
The Abney Court found that an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds was an exception to the final judgment rule and was appealable as a collateral order.
The Supreme Court suggested in Abney that the problem of frivolous and dilatory appeals could be met through expedited treatment and summary procedure at the court of appeals level. An appropriate balance of conflicting interests should be initially achieved in the trial court itself by identifying frivolous claims of former jeopardy and preventing them from unduly disrupting the trial process. Henceforth, the district courts, in any denial of a double jeopardy motion, should make written findings determining whether the motion is frivolous or nonfrivolous . If the claim is found to be frivolous, the filing of a notice of appeal by the defendant shall not divest the district court of jurisdiction over the case. If nonfrivolous, of course, the trial cannot proceed until a determination is made of the merits of an appeal .
United States v. Dunbar , 611 F.2d 985, 988 (5th Cir.) (en banc ), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980) (citations omitted) (emphasis added). The Fifth Circuit's recognition that a district court's findings affect appellate jurisdiction to hear double jeopardy appeals applies with equal force here. I believe it more than coincidence that the 2013 adoption of Rule 587(B) by our Supreme Court mirrors the Fifth Circuit's approach to determine appellate jurisdiction.
The Brady court also acknowledged that may other circuits adopted the Fifth Circuit's Dunbar rule. Brady , 508 A.2d at 343-44.
Pa.R.A.P. 313 permits appeal of an interlocutory order if the order is separable from and collateral to the main cause of action, the right involved is too important to be the denied review, and the question presented is such that if review is postponed until final judgment, the claim will be irreparably lost. I find it significant that in the requirements of this rule, there is no precondition that the merits of the underlying matter first be determined to be meritorious. Yet, when dealing with denial orders under Rule 587, a fourth condition is added before an order may be deemed collateral and immediately appealable. The underlying motion first must be determined to have merit. No other rule that permits appeals as of right under Rule 313 requires a predetermination whether the motion has merit before jurisdiction vests in this Court. This aspect of Rule 587 sets denial of double jeopardy motions apart from other motions that may qualify as collateral. Under the unambiguous language of Rule 587, only the trial court may make those necessary findings in order that we can determine whether we have jurisdiction to hear appeals from denial of those motions.
I also reject the Majority's conclusion that Rule 313 and enduring precedent pre-dating the 2013 amendments to Rule 587 control our jurisdiction. See Majority Opinion at 20 n. 1. The precedent cited was supplanted in large part by the adoption of the 2013 amendments, thus making reliance on those cases of little value. The Majority's rationale that the appellate rules govern our jurisdiction and, therefore, we may overlook procedural missteps under the rules of criminal procedure because those rules govern only practice before trial courts, Majority Opinion at 20 n.1, is misplaced. Not only does the Majority fail to cite any authority for this proposition, but as Judge Dubow cogently observes, jurisdiction derives from our statutes and not from our rules. I believe it fairly can be said that, in this regard, the rules are meant to implement jurisdiction, but do not in and of themselves establish jurisdiction.
I likewise find reliance by the Majority on the official Notes to Rule 313 unpersuasive. According to the Majority, "The Note to Rule 313 states that an established example of a collateral order is an order denying a pretrial motion to dismiss ‘based on double jeopardy in which the court does not find the motion frivolous’ ... (citing Orie, supra and Brady, supra )" and that "[t]he planned amendment to the official note of Rule 313 continues this precedent[.]" Majority Opinion at 18-19. The Majority uses these references to support its ultimate conclusion that the trial court's failure to make findings renders the denial of a motion immediately appealable. I respectfully disagree. These Notes do nothing more than cite Brady and Orie for the unremarkable proposition that meritorious motions are immediately appealable and frivolous ones are not. These case references lend no support to the Majority's conclusion, because both cases involved situations where the Supreme Court was reviewing a trial court's determination that pretrial motions were frivolous. Neither case could reference the 2013 version of Rule 587(B), and consequently could not address the issue now before this Court.
The Concurrence also cites the planned amendment. The January 7, 2020 amendment is effective August 1, 2020.
I likewise find the Concurrence's reliance on the Note to Pa.R.A.P. 1573 unpersuasive. Although in effect when the trial court rendered its double jeopardy decision, as of January 7, 2020, Rule 1573 has been repealed, including its Note. The rule addressed petitions for review when a court determined a double jeopardy motion to be frivolous. The repealed rule now is subsumed in the 2020 amendments to Pa.R.A.P. 1311 that address interlocutory appeals by permission. Double jeopardy motions deemed to be frivolous now are included under Rule 1311(a)(3). The Official Note to Rule 1311 does not carry forward the prior Note to Rule 1573, but rather states only that Rule 1311 now includes "interlocutory orders that found a criminal defendant's claim that further proceedings would cause the defendant to be placed in double jeopardy to be frivolous." Pa.R.A.P. Official Note (effective August 1, 2020). If anything, a comparison between the former Note to Rule 1573 and the current Note to Rule 1311 demonstrates less emphasis on the procedure for determining whether denial of a pretrial double jeopardy motion is appealable. It is my position, however, that the notes to these appellate rules do not address double jeopardy pretrial procedure, and serve only to illustrate examples of interlocutory orders appealable as of right.
Before concluding, I would like to offer an observation on rule interpretation. I always found case law at variance with the plain language of a rule a constant source of frustration and potential malpractice for practitioners unable to rely on the plain language of a rule. Instead, the message we send when we create exceptions or ignore rules is that rules cannot be relied upon and that practitioners must engage in extensive research before relying upon the plain language of a rule. The failure to do so is at their peril. Like our other rules of procedure, the criminal rules are to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. Pa.R.Crim.P. 101(B). See also Pa.R.C.P. 126, Pa.R.A.P. 105. Instead, exceptions or procedures grafted onto rules by case law serve only as traps for malpractice for those who do not remain vigilant on every nuanced decision that affects the interpretation of a rule. The Majority's abandonment of the unambiguous language of Rule 587 creates confusion and yet another instance where the plain language of a rule cannot be taken at face value. The Majority returns us to the pretrial practice that Rule 587(B) sought to change.
The adoption of the 2013 amendments to Rule 587 was not meant to be a mere formality that could be excused in the discretion of a court. The procedures under the 2013 amendments were meant to provide a mandatory mechanism by which pretrial double jeopardy motions are to be decided and a defendant properly advised of his or her appeal rights. Rule 587(B) serves to inform this Court whether the necessary predicates for jurisdiction have been satisfied so that a denial may be heard as collateral under Rule 313. The Majority today once again has interjected confusion into this process and blurred the roles between trial and appellate courts to address jurisdiction.
I would retain jurisdiction over this appeal and remand for a brief period for the trial court to provide us the necessary findings under Rule 587(B) so that we may decide whether we have jurisdiction to address the merits of this appeal. I respectfully dissent.
Judge Shogan and Judge Dubow join the dissenting opinion.
DISSENTING OPINION BY DUBOW, J.:
I respectfully dissent from the Majority's conclusion that the Superior Court cannot review the trial court's failure to follow the dictates of Pennsylvania Rule of Criminal Procedure 587 (" Rule 587"). Majority Op. at p. 20, n.1. The Majority Opinion dismisses the jurisdictional importance of Rule 587 by finding that it governs only the procedure in the trial court and "does not, however, govern or control appellate jurisdiction." Majority Op. at p. 20, n.1. The Majority concludes that since Appellant "neither preserved nor raised any issue regarding the trial court's method of resolving her claim," Appellant has waived any challenge and this Court cannot address sua sponte the trial court's failure to make a determination of frivolousness. Id.
The history leading up to the amendments to Rule 587 and the Appellate Rules of Procedure demonstrates that we must interpret Rule 587 in conjunction with the applicable Rules of Appellate Procedure. Rule 587 requires the trial court to make a factual finding of whether or not the motion to dismiss is frivolous and that finding determines whether we have jurisdiction pursuant to Pa.R.A.P. 313 or Pa.R.A.P. 1573. In other words, Rule 587 implicates our jurisdiction pursuant to the Rules of Appellate Procedure. Without the factual finding, we do not have jurisdiction. The current rules do not contemplate providing Superior Court with jurisdiction when the trial court fails to make the factual finding of whether or not the motion to dismiss is frivolous.
Statutory Basis for Superior Court Jurisdiction
It is helpful to start with the foundation for the jurisdiction of the Superior Court. The legislature provided that the Superior Court has "exclusive jurisdiction of all appeals from final orders of the court of common pleas...." 42 Pa.C.S. 742 (emphasis added). The legislature, however, did not limit the Superior Court's jurisdiction to final orders. It also authorized the Superior Court to hear appeals of certain interlocutory orders. 42 Pa.C.S. 702. In particular, the legislature authorized the Superior Court to hear interlocutory appeals authorized by law and those interlocutory appeals that the Superior Court determines to involve "a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter." Id .
More important, however, is that the legislature further extended this Court's jurisdiction to hear interlocutory appeals by authorizing the "governing authority" to "be responsible for a continuous review of the operation of section 702(b) (relating to interlocutory appeals by permission) and shall from time to time establish by general rule rights to appeal from such classes of interlocutory orders, if any, from which appeals are regularly permitted pursuant to section 702(b)." 42 Pa.C.S. § 5105. The legislature defines "governing authority" to include the Supreme Court. 42 Pa.C.S. § 102. Thus, the Supreme Court has the authority to promulgate rules regarding the right to appeal certain interlocutory orders and thus, determine the Superior Court's jurisdiction to hear those interlocutory appeals.
In fact, the Supreme Court has exercised such authority in promulgating Pa.R.A.P. 311, 312 and 313, Chapter 13 and Chapter 15, which define certain interlocutory appeals that an appellant may file as of right or by filing a petition for review.
Cases Leading to Amendments of Pennsylvania Rules of Appellate Procedure and Pa.R.Crim.P. 587
The Majority concludes that Rule 587 merely affects trial procedure and does not impact this Court's jurisdiction to hear this appeal. The history that led to the amendments of Rule 587 and the Rules of Appellate Procedure belie this claim.
The Supreme Court first addressed the issue of whether a trial court's denial of a motion to dismiss on double jeopardy grounds was an interlocutory appeal in Commonwealth v. Bolden , 472 Pa. 602, 373 A.2d 90 (1977), and Commonwealth v. Haefner , 473 Pa. 154, 373 A.2d 1094 (1977) (per curiam ). Read together, these cases held that a defendant had an automatic right to appeal the trial court's denial of a motion to dismiss on double jeopardy grounds.
However, in Commonwealth v. Brady , 510 Pa. 336, 508 A.2d 286 (1986), the Supreme Court limited the type of motion to dismiss for which a defendant had an automatic right to appeal on an interlocutory basis. The Supreme Court held that where the trial court finds that the pre-trial double jeopardy challenge is frivolous, the defendant does not have an automatic right to appeal because the interlocutory appeal "will serve only to delay prosecution." Id . at 345, 508 A.2d 286. The Supreme Court noted that the appellate court could review the trial court's determination of frivolousness "in the context of a request for a stay from an appellate court." Id.
In Commonwealth v. Orie, 610 Pa. 552, 22 A.3d 1021 (2011), the Supreme Court addressed the Brady "stay procedure" as the mechanism to ensure that the trial court correctly determined that the motion to dismiss was frivolous. The Supreme Court expressed its concerns that the "stay procedure" in " Brady did not specify precisely how this review would occur, or in which court, and subsequent case law developments have confused matters further." Id. at 1024. As a result, the Supreme Court provided a broad outline for a new procedure and referred the issue to Criminal Rules Committee and Appellate Rules Committee to recommend a refinement to a new procedure:
The threshold question raised by the instant Petition implicates the appropriate procedure for an appellate court to follow where a trial court has dismissed a defendant's pre-trial double jeopardy challenge as frivolous. We take this opportunity to make clear to the bench and bar the appropriate framework for appellate review of such claims, subject to further refinement following a referral to the Criminal Procedural and Appellate Procedural Rules Committees. We do so because this Court has not addressed this important issue since Commonwealth v. Brady , our review of the intervening case law reveals that confusion has arisen in this area, and the confusion makes it difficult to ascertain the review that was engaged in by the Superior Court below.
Id. (emphasis added).
In particular, the Supreme Court found that Chapter 15 of the Rules of Appellate Procedure is the "vehicle for implicating the jurisdiction of the appellate court" for reviewing the trial court's finding that the motion to dismiss is frivolous:
We believe the most efficacious remedy is to employ the existing procedures of Chapter 15 of the Rules of Appellate Procedure and permit a petitioner seeking review of a trial court's finding of frivolousness to file a Petition for Review in the Superior Court, as Petitioner has done here. The centerpiece of Chapter 15 is the use of the "petition for review" as the vehicle for implicating the jurisdiction of the appellate court. See Pa.R.A.P. 1511. Significantly, under Pa.R.A.P. 1501, matters designated by general rule are appropriately channeled into Chapter 15. Here, we consider it a modest adaptation of Brady to so designate the procedure invoking the review which it contemplated. Indeed, such approach dovetails with the review of orders refusing to certify interlocutory orders for immediate appeal, which are reviewed by the appellate courts under Chapter 15. See Pa.R.A.P. 1501(a)(4).
Id. at 1027 (emphasis added). Thus, the Supreme Court ordered Appellate Procedural Rules Committee and Criminal Procedural Rules Committee to refine the procedure for appeals from a trial court's denial of a motion to dismiss on double jeopardy grounds.
Amendments to Rules of Criminal Procedure and Rules of Appellate Procedure
In 2013, after receiving comments from the Appellate Procedural Rules Committee and the Criminal Procedural Rules Committee, the Supreme Court adopted amendments to Rule 587 and Pa.R.A.P. 1573 and the comment to Pa.R.A.P. 313. Read together, those rules create two options for an appeal when the trial court denies a motion to dismiss. If the trial court finds the motion to be frivolous, a defendant may appeal pursuant to Pa.R.A.P. 1573. If the trial court finds the motion to have merit, a defendant may appeal pursuant to Pa.R.A.P. 313. This procedure does not contemplate a situation where the trial court is silent on the issue of whether or not the motion is frivolous.
In particular, Rule 587 plainly and unambiguously requires the trial court to make an explicit determination about whether a defendant's motion to dismiss on double jeopardy grounds is frivolous. Rule 587(B)(4) provides that "[i]n the case in which the judge denies the motion [to dismiss on double jeopardy grounds], the findings of fact shall include a specific finding as to frivolousness. " Pa.R.Crim.P. 587(B)(4) (emphasis added). That finding is crucial in order to determine the defendant's appellate rights. 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 thirty days of the order denying the motion." Pa.R.Crim.P. 587(B)(5). Conversely, if the trial court "denies the motion [to dismiss on double jeopardy grounds] 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)(6).
The Supreme Court simultaneously amended the Pennsylvania Rules of Appellate Procedure. The Supreme Court amended Pa.R.A.P. 1573 to address the situation where the trial court finds the motion to be frivolous. Pa.R.A.P. 1573 provides that appellate "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." Pa.R.A.P. 1573 (emphasis added).
Similarly, the Supreme Court amended the Comment to Pa.R.A.P. 313, which addresses collateral orders, to provide as an example of a collateral order those "orders denying pre-trial motions to dismiss based on double jeopardy in which the court does not find the motion frivolous. " (emphasis added). The Comment compares a non-frivolous motion with one in which the trial court finds the motion to be frivolous when it opines that "if the trial court finds the motion frivolous, the defendant may secure review only by first filing a petition for review under Pa.R.A.P. 1573."
These amendments create the procedure for appealing a denial of a motion to dismiss. The crux of that procedure is the trial court's finding of whether or not the motion is frivolous and that finding is the predicate for our jurisdiction under Pa.R.A.P. 313 or Pa.R.A.P. 1573. Therefore, our jurisdiction is not implicated unless and until the trial court makes a determination about whether the appeal is frivolous or not frivolous.1
It should be noted that the Supreme Court did not amend the rules to provide for the situation where the trial court is silent on whether the appeal is frivolous. Rule 587 provides that the trial court shall make a determination of frivolous and then the other rules define our jurisdiction.
In this case, the trial court made no determination about whether the motion to dismiss was frivolous. Thus, there is no factual determination to implicate our jurisdiction pursuant to either Pa.R.A.P. 313 or Pa.R.A.P. 1573. Thus, we lack jurisdiction to review the merits of this appeal.
Majority Opinion
The Majority's conclusion that Rule 587 only affects trial procedure and does not implicate our jurisdiction ignores the unambiguous meaning of Rule 587 and Pa.R.A.P. 313 or Pa.R.A.P. 1573. As discussed above, Rule 587 requires the trial court to make a factual finding of whether or not the motion is frivolous and then the Rules of Appellate Procedure define our jurisdiction. To accept the Majority's conclusion means ignoring the plain meaning of these rules.
Furthermore, the impact of the Majority's conclusion is that the trial court's silence on the issue of whether the motion to dismiss is frivolous is equivalent to the trial court making a finding that the motion is not frivolous, i.e. , the motion has merit. As the analysis supra shows, our rules do not support that conclusion. The above rules contemplate two choices: an appeal in which the trial court finds the motion to dismiss to be frivolous and an appeal in which the trial court finds the motion to dismiss not to be frivolous. The rules do not contemplate a situation in which the trial court is silent on this issue.
Moreover, the cases upon which the Majority relies were decided before 2013 when the Supreme Court, pursuant to the directive in Commonwealth v. Orie , worked with the Appellate Procedural Rules Committee and the Criminal Procedural Rules Committee, to amend both sets of rules to create a mechanism for an appeal from the denial of a motion to dismiss as well as our jurisdiction to hear those appeals. Thus, those cases have limited precedential value.2
The Majority also relies upon the proposed Comment to Rule 313 that identifies collateral orders from which an appellant has the automatic right to appeal as those denying a motion to dismiss on the grounds of double jeopardy "if the trial court does not also make a finding that the motion to dismiss is frivolous."3 In other words, the proposed Comment addresses the situation in which the trial court follows the requirements of Rule 587 and makes a finding that the motion to dismiss has merit, i.e. , the trial court does not find that the motion is frivolous. The Majority, however, interprets this comment as providing that the trial court's silence on the issue of whether the appeal is frivolous means that the trial court determined that the motion to dismiss has merit and we have jurisdiction to review the merits of the denial as a collateral order. The Majority's interpretation is inconsistent with the clear and unambiguous language of Rule 587 that requires the trial court to make a determination and does not permit silence on the issue. In conclusion, the trial court's silence on whether this appeal is frivolous or not is not mere "trial error." It is a jurisdictional defect and until the trial court makes that determination pursuant to Rule 587, our jurisdiction pursuant to Pa.R.A.P. 313 or Pa.R.A.P. 1573 is not implicated and we cannot review this appeal.
Conclusion
In conclusion, I would find that we must read Rule 587 in conjunction with Pa.R.A.P. 313 and 1573 and such interpretation implicates the jurisdiction of the Superior Court. Therefore, we must address sua sponte the trial court's failure to determine whether the Motion to Dismiss was frivolous. Since the trial court failed to do so, I would remand the case to determine, pursuant to Rule 587, whether this appeal is frivolous or not frivolous.
Judge Shogan and Judge Stabile join this dissenting opinion.