J-A32005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARLIN J. KELLEY,
Appellant No. 278 WDA 2015
Appeal from the Order February 13, 2015
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000443-2013
BEFORE: SHOGAN, OTT, and STABILE, JJ.
JUDGMENT ORDER BY SHOGAN, J.: FILED NOVEMBER 25, 2015
Marlin J. Kelley (“Appellant”) appeals from an order denying his motion
to prohibit retrial on double jeopardy grounds. Order, 2/13/15. We may
exercise jurisdiction over this appeal only to the extent that the order
denying Appellant’s pretrial motion qualifies as a collateral order under
Pa.R.A.P. 313.
To establish whether a motion to dismiss on double jeopardy
grounds qualifies as a collateral order, trial courts must now,
inter alia, satisfy [Pa.R.Crim.P.] 587(B)(3), (4), (5), and (6).
Subsection (B)(3) requires the trial court, following a hearing, to
enter on the record a statement of findings of fact and
conclusions of law and its disposition of the double jeopardy
motion. Subsection (B)(4) requires the trial court to render a
specific finding on frivolousness in the event the court denies the
double jeopardy motion. Subsection (B)(5) requires the trial
court, if it finds frivolous the double jeopardy motion, to inform
on the record a defendant of his or her right to petition for
review under Pa.R.A.P. 1573 within [thirty] days of the order
denying the motion. Subsection (B)(6) requires the court to
J-A32005-15
advise a defendant of his immediate right to a collateral appeal if
the court does not find the double jeopardy motion to be
frivolous.
Commonwealth v. Taylor, 120 A.3d 1017, 1022–1023 (Pa. Super. 2015).
Here, our review of the record reveals the trial court failed to render a
specific finding on the record regarding frivolousness, as required under
Pa.R.Crim.P. 587(B)(4). Thus, the trial court failed to comply with Rule
587(B)(4) through (6). Because the trial court failed to fully comply with
Rule 587(B), we are unable to determine whether we may exercise
jurisdiction over this appeal. Therefore, we remand this matter to the trial
court for compliance with Rule 587(B) and preparation of a supplemental
Pa.R.A.P. 1925(a) opinion within sixty days of the date of this judgment
order. Upon the filing of a supplemental opinion, the certified record is to be
promptly returned to this Court.
Case remanded. Panel jurisdiction retained.1
____________________________________________
1
Our retaining of jurisdiction over this appeal would not excuse Appellant’s
non-compliance with Pa.R.Crim.P. 587(B)(5) and Pa.R.A.P. 1573 in the event
the trial court determines that his double jeopardy motion is frivolous.
Taylor, 120 A.3d at 1023.
-2-
Com. v. Kelley, M.
Combined Opinion