J-S57035-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID DWAYNE BROOKS, :
:
Appellant : No. 91 WDA 2016
Appeal from the Order January 11, 2016
in the Court of Common Pleas of Fayette County,
Criminal Division, at No(s): CP-26-CR-0000979-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 07, 2016
David Dwayne Brooks (Appellant) appeals from the January 11, 2016
order which denied his motion to dismiss based upon double jeopardy. Upon
review, we remand the matter to the trial court for proceedings consistent
with this memorandum.
The trial court set forth the relevant factual background of this case as
follows.
[Appellant] was charged with robbing Samantha Karfelt
[Victim], an acquaintance of his [who] was employed as an
exotic dancer. She returned home from work in the early
morning hours with an amount of cash that she was unable to
specifically quantify, but which she estimated as being well over
$[200.00]. [Appellant] approached her with his identity
concealed and while pointing a handgun at her head, pushed her
back into her car and said “Sam, give me the money.” She
complied, but recognized his voice, and as he walked away with
her money, she asked him why he did this to her. He made
some statement about needing the money to replace someone’s
*Retired Senior Judge assigned to the Superior Court.
J-S57035-16
flat tires, then hugged [V]ictim and said words to the effect that
they were still friends and everything was all right.
Trial Court Opinion (TCO), 4/18/2016, at 1-2.
Appellant was charged with theft, robbery, simple assault, and
recklessly endangering another person. Following a jury trial, Appellant was
convicted of theft and sentenced to probation. As to the remaining charges,
the trial court found that the jury was “hopelessly deadlocked” and declared
a mistrial. Id. at 1. The trial court found manifest necessity in declaring a
mistrial, citing that
the jury had difficulty resolving the issues, convicted the
[Appellant] only of the theft, with the amount stolen
“undetermined.” The jury advised [the trial court] that they
were unable to resolve the other charges and that no additional
time or instruction by the [trial court] would allow them to do so.
Id. at 2.
On January 5, 2016, following the trial court’s declaration, Appellant
filed a motion to dismiss, arguing that prosecuting Appellant on the
remaining charges was barred by double jeopardy. The trial court denied
Appellant’s motion. This appeal followed.1 On appeal, Appellant challenges
the trial court’s denial of his motion. Appellant’s Brief at 7.
Before addressing the merits of the issue raised by Appellant, we must
first determine if we have jurisdiction over this appeal. “Jurisdictional
questions are non-waivable and not only may be raised by [this Court] sua
1
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
-2-
J-S57035-16
sponte … but must be.” Commonwealth v. Boerner, 422 A.2d 583, 588
(Pa. Super. 1980) (citations removed). Our Supreme Court has provided
guidance when addressing an order denying a motion to dismiss based on
double jeopardy.
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.” Commonwealth v. Haefner,
473 Pa. 154, 373 A.2d 1094, 1095 (1977) (per curiam)
(emphasis added).
Eight years later, in [Commonwealth v. Brady, 508 A.2d
289 (Pa. 2011) our 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. 508 A.2d at 291.
Commonwealth v. Orie, 22 A.3d 1021, 1024-25 (Pa. 2011).
Pa.R.C.P. 587(B) governs double jeopardy motions.
(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-
J-S57035-16
(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.
This Court has interpreted Rule 587 governing double jeopardy motions and
the implications it has on our jurisdiction.
To establish whether a motion to dismiss on double jeopardy
grounds qualifies as a collateral order, trial courts must now,
inter alia, satisfy Rule 587(B)(3), (4), (5), and (6). Subsection
(B)(3) requires the trial court, following a hearing, to enter on
the record a statement of findings of fact and conclusions of law
and its disposition of the double jeopardy motion. Subsection
(B)(4) requires the trial court to render a specific finding on
frivolousness in the event the court denies the double jeopardy
motion. Subsection (B)(5) requires the trial court, if it finds
frivolous the double jeopardy motion, to inform on the record a
defendant of his or her right to petition for review under
Pa.R.A.P. 1573 within 30 days of the order denying the motion.
Subsection (B)(6) requires the court to advise a defendant of his
immediate right to a collateral appeal if the court does not find
the double jeopardy motion to be frivolous.
-4-
J-S57035-16
Commonwealth v. Taylor, 120 A.3d 1017, 1022–23 (Pa. Super. 2015)
(footnotes removed).
In reviewing the record, it appears Appellant’s motion to dismiss was
denied without a hearing. This conclusion is based upon (1) the fact that
this Court has not received a transcript, nor has the trial court or Appellant
cited to one;2 (2) the trial court’s Pa.R.A.P. 1925 opinion states that it is
unaware and therefore cannot speculate if there are any additional
supporting arguments Appellant might seek to raise other than what was
included “in the motion [to dismiss]” and “concise statement,” TCO,
4/18/2016, at 3; and (3) the record contains no findings of fact and
conclusions of law regarding the motion nor does the trial court state a
specific finding of frivolousness, as required by Rule 587(B)(3) and (4).
Because this vital information is missing, we are unable to determine if
we have jurisdiction over this appeal. Due to the deficiencies in the record,
we remand this matter to the trial court to conduct a hearing on the motion
and comply with all the requirements set forth in Rule 587. Conversely, if a
hearing has already taken place, and complied with the rule, this Court shall
receive a certified copy of the transcript. The trial court will also prepare a
supplemental Rule 1925(a) opinion. The foregoing should be completed
2
The Commonwealth filed a letter informing this Court it would rely on the
trial court’s opinion in lieu of submitting a brief.
-5-
J-S57035-16
within sixty days of the date of this memorandum. Upon the filing of a
supplemental opinion, the certified record is to be returned to this Court.
Case remanded. Panel Jurisdiction retained.
-6-