J-S19005-15
2015 PA Super 155
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERRY TAYLOR
Appellant No. 394 EDA 2014
Appeal from the Order dated January 27, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0004655-2013
BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.
OPINION BY STABILE, J.: FILED JULY 20, 2015
Appellant Jerry Taylor appeals from the January 27, 2014 order of the
Court of Common Pleas of Philadelphia County (“trial court”), denying his
pretrial motion to dismiss on double jeopardy grounds a charge under
Section 6105 of the Pennsylvania Uniform Firearms Act of 1995 (“VUFA”), 18
Pa.C.S.A. § 6105. Upon review, we remand the matter to the trial court for
compliance with Pa.R.Crim.P. 587(B).
On February 28, 2013, in connection with the February 18, 2013
shooting in which Shay Gibson was injured,1 the Philadelphia Police
Department charged Appellant with, inter alia, attempted murder,
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1
Unless another source is cited, the facts are taken from the trial court’s
Pa.R.A.P. 1925(a) Opinion, 8/13/14, at 1-4.
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aggravated assault, possessing an instrument of a crime (“PIC”), carrying a
firearm without a license, carrying a firearm on the public streets of
Philadelphia, and persons not to possess firearms.2 On March 1, 2013, the
police executed a search warrant on Appellant’s residence, confiscating a
firearm that was unrelated to the February 18, 2013 shooting. Appellant,
however, was not charged with any offenses related to the March 1, 2013
discovery of the firearm.
On March 15, 2013, Appellant was indicted by a grand jury on the
foregoing charges stemming from the February 18, 2013 shooting. Prior to
the commencement of trial, the trial court severed the VUFA Section
6105(a)(1) charge (persons not to possess firearm) from all the other
charges to be tried.3 As a result, the parties agreed to hold a separate trial
on the Section 6105 charge. On November 22, 2013, a jury acquitted
Appellant on all charges severed from the VUFA Section 6105(a)(1) charge.
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2
18 Pa.C.S.A. §§ 901, 2502, 2702(a)(1), 907(a), 6106(a)(1), 6108, and
6105(a)(1), respectively.
3
Section 6105 provides in pertinent part:
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.
18 Pa.C.S.A. § 6105(a)(1).
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Following the jury’s verdict, the trial court informed Appellant of the
outstanding Section 6105 charge related to the February 18, 2013 shooting
and provided him with the option of either proceeding to a jury or bench
trial. Appellant opted for a jury trial. The court set a trial date for May 5,
2014.4 On January 5, 2014, Appellant filed a motion to dismiss the severed
Section 6105 charge related to the February 18, 2013 shooting based on
double jeopardy. Appellant argued that the severed Section 6105 charge
should be dismissed because a jury already had “acquitted [him] of the
charges of possessing a firearm in connection with” Sections 6106, 6108 and
PIC. See Motion to Dismiss, 1/5/13, at 5. Differently put, Appellant argued
“the initial jury has already decided that [Appellant] [] did not possess a
firearm beyond a reasonable doubt.” Id. Following oral argument, the trial
court denied Appellant’s motion on January 27, 2014. Appellant timely
appealed to this Court.
In his Pa.R.A.P. 1925(b) statement of errors complained of on appeal,
Appellant raised the following assertions of error.
1. The trial court committed error at the time of trial and again
when it failed to grant [A]ppellant’s [pre-trial] [m]otion to
[d]ismiss. Accordingly, [A]ppellant’s trial on the remaining
charge of VUFA – 6105 is barred by the doctrines of collateral
estoppel and/or double jeopardy in light of the two issues below:
a. The trial court committed error when it sua sponte
dismissed the jury after it had returned verdicts of
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4
The docket indicates the trial has been continued pending the outcome of
this appeal.
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not guilty but before they could reach a decision on
the remaining bifurcated charge of VUFA – 6105.
b. The trial court committed error and/or prosecutor
is barred from bringing [A]ppellant to trial on the
charge of VUFA – 6105 because the bills of
information list only one date as the date the crime
was committed. The prosecutor explained that she
wanted to proceed with VUFA – 6105 for possessing
a firearm on the day of the shooting and weeks later
when the police enter[ed] and search[ed]
[A]ppellant’s premises. However, the bills of
information were never amended to include a second
subsequent date. Thus, the charge of VUFA – 6105
applies only to the day of the shooting. Accordingly,
the jury’s verdict[s] of not guilty to the possessory
crimes of VUFA – 6106 and PIC also speak to the
possessory charge of VUFA – 6105. The doctrine of
collateral estoppel applies to bar a subsequent
prosecution.
Appellant’s Rule 1925(b) Statement. In response, the trial court issued a
Pa.R.A.P. 1925(a) opinion. The trial court preliminarily noted that it severed
the Section 6105 charge—and Appellant agreed to the severance—because
the charge required evidence that Appellant previously was convicted of a
crime. Addressing Appellant’s double jeopardy/collateral estoppel argument
with respect to the VUFA Section 6105 charge related to the February 18,
2013 shooting, the trial court concluded “[i]n this case, with respect to the
Section 6105 charge, jeopardy never attached and the doctrine of collateral
estoppel is inapplicable.” Trial Court Opinion, 8/13/14, at 7. Specifically,
the trial court reasoned “[t]he jury was sworn after the parties agreed to
bifurcate the Section 6105 charge. Appellant subsequently was arraigned
and pleaded not guilty to all of the above-referenced charges except the
charge under Section 6105, for which he was not arraigned, and for which
he therefore entered no plea.” Id.
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The trial court rejected Appellant’s argument that the court erred in
dismissing the jury after it rendered its verdict of acquittal with respect to
the non-severed charges arising out of the February 18, 2013 shooting. The
trial court noted “Appellant has not advised [the trial court] of any case law
or rule of procedure that supports his proposition” that the same jury had to
decide the severed Section 6105 charge. Id. at 8, n.2.
The trial court next addressed Appellant’s argument that the
Commonwealth may not prosecute him under Section 6105 in connection
with the firearm recovered from his residence on March 1, 2013, because
the Commonwealth did not include the March 1, 2013 date in the bill of
information filed in connection with the February 18, 2013 shooting. The
trial court concluded Appellant was aware of the firearm discovered at his
residence on March 1, 2013, and knew the Commonwealth intended to
prosecute him for the discovered firearm. See id. at 9. The trial court
found Appellant “had ample opportunity to prepare a defense to this
charge.” Id. Accordingly, the trial court concluded Appellant suffered no
prejudice from the defect in the bill of information. Id.
On appeal, Appellant essentially raises three issues for our review.5
First, Appellant argues the trial court erred in denying his double jeopardy
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5
Appellant’s questions presented do not match up with the arguments
raised in his brief. We, therefore, have reworded the issues to reflect the
arguments raised.
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claim with respect to the severed VUFA Section 6105 charge related to the
February 18, 2013 shooting.6 Second, Appellant argues the Commonwealth
may not prosecute him for a Section 6105 charge related to the March 1,
2013 firearm discovery, because that charge was not included in the bill of
information.7 Third, Appellant argues the trial court erred in denying him
the ability to be tried for the severed Section 6105 charge related to the
February 18, 2013 shooting by the same jury that acquitted him.
Our scope and standard of review is as follows. “An appeal grounded in
double jeopardy raises a question of constitutional law. This [C]ourt’s scope
of review in making a determination on a question of law is, as always,
plenary. As with all questions of law, the appellate standard of review is de
novo.” Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008)
(citations and quotations marks omitted).
Before we may address the merits, we must determine whether we
have jurisdiction over this appeal. See Commonwealth v. Allburn, 721
A.2d 363, 365 (Pa. Super. 1998) (noting issues of jurisdiction may be raised
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6
The Commonwealth notes in its brief that it does not intend to prosecute
Appellant for the severed Section 6105 charge related to the February 18,
2013 shooting. See Appellant’s Brief at 10.
7
The Commonwealth also notes it has not yet charged Appellant with a
Section 6105 violation in connection with the March 1, 2013 discovery of the
firearm at his residence. Id. at 11.
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sua sponte), appeal denied, 739 A.2d 163 (Pa. 1999).8 Instantly,
Appellant claims jurisdiction properly lies in this Court under Pa.R.A.P.
311(a)(6). Rule 311, relating to interlocutory appeals as of right, provides
in pertinent part:
(a) General rule. An appeal may be taken as of right and
without reference to Pa.R.A.P. 341(c) from:
....
(6) New trials. An order in a civil action or
proceeding awarding a new trial, or an order in a
criminal proceeding awarding a new trial where
the defendant claims that the proper disposition of
the matter would be an absolute discharge or where
the Commonwealth claims that the lower court
committed an error of law.
Pa.R.A.P. 311(a)(6) (emphasis added). As the undisputed procedural
history, recited above, demonstrates, Appellant does not appeal an order
granting a new trial, as required under Rule 311(a)(6), but rather an order
denying his pretrial motion to dismiss on double jeopardy grounds.
Accordingly, Rule 311(a)(6) is inapplicable here, and as a result, we cannot
exercise jurisdiction on that basis.
We, nonetheless, may be able to exert jurisdiction over this appeal to
the extent the order denying Appellant’s pretrial motion to dismiss on double
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8
When considering the proper exercise of appellate jurisdiction, our review
is de novo, and the scope of review is plenary. Commonwealth v.
Kennedy, 876 A.2d 939, 943 n.3 (Pa. 2005) (citation omitted).
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jeopardy grounds qualifies as a collateral order under Pa.R.A.P. 313. Rule
313 provides in part:
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(b). The comment to Rule 313 specifically cites as an example
of a collateral order an order denying a pre-trial motion to dismiss on double
jeopardy grounds. Id. Comment (citation omitted). Indeed, our Supreme
Court has held that orders denying a defendant’s motion to dismiss on
double jeopardy grounds are appealable as collateral orders, so long as the
motion is not found to be frivolous. See Commonwealth v. Brady, 508
A.2d 286, 291 (Pa. 1986) (concluding “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.”), accord Commonwealth v. Orie, 22 A.3d 1021,
1026 (Pa. 2011).
Years after Brady, in 2013, the Pennsylvania Rules of Criminal
Procedure were amended to codify the common law framework for motions
to dismiss on double jeopardy grounds. In particular, effective July 4, 2013,
Rule 587(B) was added to govern pretrial double jeopardy motions.
Specifically, Rule 587(B) provides in pertinent part:
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(1) A motion to dismiss on double jeopardy grounds shall state
specifically and with particularity the basis for the claim of
double jeopardy and the facts that support the claim.
(2) A hearing[9] on the motion shall be scheduled in accordance
with Rule 577 (Procedures Following Filing of Motion). The
hearing shall be conducted on the record in open court.
(3) At the conclusion of the hearing, the judge shall enter
on the record a statement of findings of fact and
conclusions of law and shall issue an order granting or
denying the motion.
(4) In a case in which the judge denies the motion, the
findings of fact shall include a specific finding as to
frivolousness.
(5) If the judge makes a finding that the motion is
frivolous, the judge shall advise the defendant on the
record that a defendant has a right to file a petition for
review of that determination pursuant to Rule of Appellate
Procedure 1573 within 30 days of the order denying the
motion.
(6) If the judge denies the motion but does not find it
frivolous, the judge shall advise the defendant on the
record that the denial is immediately appealable as a
collateral order.
Pa.R.Crim.P. 587(B) (emphasis added). To establish whether a motion to
dismiss on double jeopardy grounds qualifies as a collateral order, trial
courts must now, inter alia, satisfy Rule 587(B)(3), (4), (5), and (6).
Subsection (B)(3) requires the trial court, following a hearing, to enter on
the record a statement of findings of fact and conclusions of law and its
disposition of the double jeopardy motion. Subsection (B)(4) requires the
trial court to render a specific finding on frivolousness in the event the court
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9
The comment to Rule 587(B) provides that the term “hearing” under
subsection (B)(2) “includes the taking of testimony, or the hearing of
argument, or both.” Pa.R.Crim.P. 587(B) Comment.
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denies the double jeopardy motion.10 Subsection (B)(5) requires the trial
court, if it finds frivolous the double jeopardy motion, to inform on the
record a defendant of his or her right to petition for review under Pa.R.A.P.
1573 within 30 days of the order denying the motion. Subsection (B)(6)
requires the court to advise a defendant of his immediate right to a collateral
appeal if the court does not find the double jeopardy motion to be frivolous.
Instantly, our review of the record, in particular the January 27, 2014
argument transcript, reveals the trial court failed to comply with Rule
587(B)(3) though (6).11 Specifically, as required under Rule 587(B)(3),
following oral argument, the trial court failed to enter on the record a
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10
Although non-binding, as it has not been adopted by the Supreme Court,
and by way of background, the final report on Rule 587(B) issued by the
Criminal Procedure Rules Committee provides:
The members of the Criminal Committee noted, anecdotally, that
frequently judges will deny the motion to dismiss on double
jeopardy grounds without making a finding with regard to
frivolousness unless or 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 a source of confusion and that they cause problems for
defendants and appellate courts when such motions are denied,
the amendments require the trial judge to make a specific
finding as to frivolousness at the time the judge decides the
double jeopardy motion, and further require a trial judge to
make a contemporaneous record of the judge’s reasons for his or
her findings.
Motion to Dismiss Based on Double Jeopardy Grounds Final Report,
6/4/2013, at 3.
11
We observe the trial court may not have fully appreciated the
amendments to Rule 587, as they were barely 6 months old at the time the
court decided Appellant’s motion to dismiss on double jeopardy grounds.
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statement of findings of fact and conclusions of law. Moreover, in denying
Appellant’s motion to dismiss on double jeopardy grounds, the trial court
also failed to render a specific finding on frivolousness, as required under
Rule 587(B)(4). The trial court did not find whether Appellant’s motion to
dismiss was or was not frivolous. Given the trial court’s failure to comply
with Rule 587(B), we are unable to decide whether we may exercise
jurisdiction over this appeal. Consequently, we remand this matter to the
trial court for compliance with Rule 587(B) and preparation of a
supplemental Rule 1925(a) opinion within sixty days of the date of this
opinion.12 Upon the filing of a supplemental opinion, the certified record is
to be returned to this Court.
Case remanded. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
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12
Our retaining of jurisdiction over this appeal would not excuse Appellant’s
non-compliance with Criminal Rule 587(B)(5) and Appellate Rule 1573 in the
event the trial court determines his double jeopardy motion to be frivolous.
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