J-S22008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT ANTHONY KOLOVICH,
Appellant No. 1273 MDA 2016
Appeal from the Order Entered June 30, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002136-2014
BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 11, 2017
Appellant, Robert Anthony Kolovich, appeals from the order entered
June 30, 2016, denying his motion to bar prosecution pursuant to the double
jeopardy clause and 18 Pa.C.S. §§ 110 and 111. After careful review, we
remand the matter to the trial court for proceedings consistent with this
Memorandum.
The trial court summarized the factual background of this case as
follows:
On April 30, 2014, [Appellant] was charged with one count
[of] Deceptive or Fraudulent Business Practices (18 Pa.C.S.A. §
4107 (a)(2)) and one count Theft by Deception-False Impression
(18 Pa.C.S.A. § 3922(a)(l)), both felonies of the third degree 1,
as a result of conduct alleged to have occurred between August
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*
Retired Senior Judge assigned to the Superior Court.
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28, 2013[,] and April 29, 2014[,] whereby [Appellant] allegedly
obtained and withheld from the alleged victims an amount
totaling $3,984.00 promising to purchase and install new
windows for said individuals and failing to do so.2
1
[Appellant] also filed a Motion to Quash
Information which was granted as to Count I of the
Information, (Deceptive Business Practices), and
denied as to Count II (Theft by Deception).
2
[Appellant] was also charged with two counts of
Deceptive Business Practices and one count of Theft
by Deception to Luzerne County Case Number 2941 -
2014 involving a different victim. A Motion to Bar
Prosecution Pursuant to the Double Jeopardy Clause
was also filed in that case. Said motion was likewise
denied on June 30, 2016 but was not appealed.
On June 18, 2014[,] and July 9, 2014[, Appellant] was
similarly charged in Centre County with Home Improvement
Fraud, Theft by Deception, and Deceptive Business Practices.3
Centre County defense counsel filed a Motion for Compulsory
Joinder of Criminal Cases in Lycoming, Tioga, Susquehanna,
Snyder, Northumberland, York, Bradford, Union, Luzerne, Mifflin
and Dauphin [C]ounties to prevent a violation of [Appellant’s]
Double Jeopardy Protection under the 5th and 14th Amendments
of both the State and Federal Constitutions. [Appellant’s]
motion was denied and [Appellant] was found not guilty on all
charges after a jury trial. In addition, after being charged with
similar offenses in Sullivan County, all charges were dismissed
on March 5, 2015[,] pursuant to Pa.R.Crim.P. 586.4
3
Centre County Information CP-14-CR-1249-2014
and CP-14-CR-1295-2015.
4
“When a defendant is charged with an offense
which is not alleged to have been committed by force
or violence or threat thereof, the court may order
the case to be dismissed upon motion and a showing
that: (1) the public interest will not be adversely
affected and (2) the attorney for the Commonwealth
consents to the dismissal; and (3) satisfaction has
been made to the aggrieved person or there is an
agreement that satisfaction will be made to the
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aggrieved person; and (4) there is an agreement as
to who shall pay the costs.”
Trial Court Opinion, 9/29/16, at 1-2.
Appellant filed a motion to bar prosecution pursuant to the double
jeopardy clause and 18 Pa.C.S. §§ 110 and 111 on August 12, 2015.
Appellant’s motion was denied by order entered June 30, 2016. Appellant
filed a notice of appeal on July 25, 2016. Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Did the trial court err, as a matter of law, in denying
[Appellant’s] Motion to bar prosecution pursuant to the Double
Jeopardy Clause (state and federal) with respect to Count 2 of
the Information?
2. Did the trial court err, as a matter of law, in denying
[Appellant’s] Motion to bar prosecution pursuant to 18 Pa.C.S.
Section 110 and 111 with respect to Count 2 of the Information?
Appellant’s Brief at 3.
Before turning to the merits of Appellant’s argument, we must
determine if we may exercise jurisdiction over this appeal. Initially, we
acknowledge that issues of jurisdiction may be raised sua sponte.
Commonwealth v. Taylor, 120 A.3d 1017, 1021 (Pa. Super. 2015).
Moreover, “[w]hen considering the proper exercise of appellate jurisdiction,
our review is de novo, and the scope of review is plenary.” Id. at 1021 n.8
(citation omitted).
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Here, Appellant claims that this Court has jurisdiction pursuant to
Pa.R.A.P. 311, which pertains to interlocutory appeals as of right.
Appellant’s Brief at 1. However, Appellant does not address how an appeal
may be taken as of right from the trial court’s order denying his motion to
bar prosecution, and we cannot discern how Rule 311 is applicable to the
case at bar.1
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
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 pretrial motion to dismiss on double
jeopardy grounds. Id. at cmt. (“Examples of collateral orders include
orders denying pre-trial motions to dismiss based on double jeopardy in
which the court does not find the motion frivolous, Commonwealth v.
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1
Appellant cites Commonwealth v. Kivlin, 406 A.2d 799 (Pa. Super.
1979), in support of his assertion that this Court has jurisdiction as an
interlocutory appeal as of right. Appellant’s Brief at 1. While Kivlin states
that an order denying a motion to dismiss on double jeopardy grounds is
immediately appealable, it does not cite to Pa.R.A.P. 311. Kivlin, 406 A.2d
at 801 n.1.
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Brady, 510 Pa. 336, 508 A.2d 286, 289-91 (1986).”). “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.” Taylor, 120 A.3d at 1021.
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, Rule 587(B) was added to govern pretrial
double jeopardy motions. Specifically, Rule 587(B) provides as follows:
(1) A motion to dismiss on double jeopardy grounds shall state
specifically and with particularity the basis for the claim of
double jeopardy and the facts that support the claim.
(2) A hearing on the motion shall be scheduled in accordance
with Rule 577 (Procedures Following Filing of Motion). The
hearing shall be conducted on the record in open court.
(3) At the conclusion of the hearing, the judge shall enter on the
record a statement of findings of fact and conclusions of law and
shall issue an order granting or denying the motion.
(4) In a case in which the judge denies the motion, the findings
of fact shall include a specific finding as to frivolousness.
(5) If the judge makes a finding that the motion is frivolous, the
judge shall advise the defendant on the record that a defendant
has a right to file a petition for review of that determination
pursuant to Rule of Appellate Procedure 1573 within 30 days of
the order denying the motion.
(6) If the judge denies the motion but does not find it frivolous,
the judge shall advise the defendant on the record that the
denial is immediately appealable as a collateral order.
Pa.R.Crim.P. 587(B).
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This Court had the opportunity to interpret Rule 587(B) in the context
of a trial court’s failure to fully comply with the rule in Taylor, 120 A.3d at
1021. This Court explained:
To establish whether a motion to dismiss on double jeopardy
grounds qualifies as a collateral order, trial courts must now,
inter alia, satisfy Rule 587(B)(3), (4), (5), and (6). Subsection
(B)(3) requires the trial court, following a hearing, to enter on
the record a statement of findings of fact and conclusions of law
and its disposition of the double jeopardy motion. Subsection
(B)(4) requires the trial court to render a specific finding on
frivolousness in the event the court denies the double jeopardy
motion. Subsection (B)(5) requires the trial court, if it finds
frivolous the double jeopardy motion, to inform on the record a
defendant of his or her right to petition for review under
Pa.R.A.P. 1573 within 30 days of the order denying the motion.
Subsection (B)(6) requires the court to advise a defendant of his
immediate right to a collateral appeal if the court does not find
the double jeopardy motion to be frivolous.
Taylor, 120 A.3d at 1022-1023 (footnote omitted).
In Taylor, the trial court denied the appellant’s motion to dismiss on
double jeopardy grounds, but failed to enter on the record a statement of
findings of fact and conclusions of law. Further, it did not make a
determination of whether the defendant’s motion to dismiss on double
jeopardy grounds was frivolous. Id. Regarding the trial court’s failure to
fully comply with Rule 587(B), this Court held:
[O]ur review of the record, in particular the [motion to dismiss
on double jeopardy grounds] argument transcript, reveals the
trial court failed to comply with Rule 587(B)(3) th[r]ough (6).
Specifically, as required under Rule 587(B)(3), following oral
argument, the trial court failed to enter on the record a
statement of findings of fact and conclusions of law. Moreover,
in denying [a]ppellant’s motion to dismiss on double jeopardy
grounds, the trial court also failed to render a specific finding on
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frivolousness, as required under Rule 587(B)(4). The trial court
did not find whether [a]ppellant’s motion to dismiss was or was
not frivolous. Given the trial court’s failure to comply with Rule
587[(B)], we are unable to decide whether we may exercise
jurisdiction over this appeal. Consequently, we remand this
matter to the trial court for compliance with Rule 587[(B)] and
preparation of a supplemental Rule 1925(a) opinion within sixty
days of the date of this opinion.
Id. (footnotes omitted).
Here, the docket indicates that a motions hearing took place on
September 2, 2015. Also included in the record is a partial transcript from
that proceeding. The transcript is missing multiple pages. The citation on
the bottom of the included pages indicates that there are seventeen pages
to the transcript. N.T., 9/2/16, at 2, 3 (unpaginated). The transcript in the
certified record includes only pages two to five and ten to thirteen. Id.
While the included pages reflect that Appellant’s motion to bar prosecution
based on double jeopardy principles was discussed at that hearing, there is
no indication that the trial court entered on the record a statement of
findings of fact and conclusions of law in granting or denying the motion, as
required by Pa.R.Crim.P. 587(B)(3). Moreover, there is no reference to a
specific finding as to frivolousness. Pa.R.Crim.P. 587(B)(4). Relatedly, the
hearing does not reflect the trial court’s compliance with the requirements
pertaining to the court’s advisement regarding appeal rights. Pa.R.Crim.P.
587(B)(5) & (6). Thus, due to the incomplete transcript, we are unable to
discern whether the trial court complied with Pa.R.Crim.P. 587(B) during this
hearing. We further note that there is no other reference in the certified
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record regarding a specific finding of frivolousness by the trial court
regarding Appellant’s motion.
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
in compliance with the requirements set forth in Rule 587(B) if it has not
already done so, as such is not clear from the partial hearing transcript.
Conversely, if the hearing complied with the rule, the trial court shall
forward a certified complete copy of the transcript to this Court. The trial
court is directed to prepare a supplemental Pa.R.A.P. 1925(a) opinion. The
foregoing should be completed 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.2
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2
Our retaining jurisdiction over this appeal would not excuse Appellant from
complying 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 n.12.
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Com. v. Kolovich, R.
Combined Opinion