J-A09001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEFFERY MASSI,

Appellant No. 98 EDA 2014

Appeal from the Order December 9, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001179-2012

BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

DISSENTING MEMORANDUM BY BOWES, J.: FILED DECEMBER 30, 2015

I must respectfully dissent from the learned majority’s conclusion that 

this Court lacks jurisdiction at this stage to reach the merits of Appellant’s 

non-frivolous double jeopardy challenge. The majority’s reading of the 

record and Pa.R.Crim.P. 587(B) unnecessarily elevates form over substance. 

Indeed, the Commonwealth concedes that this Court has jurisdiction over 

this appeal. See Commonwealth’s brief at 4 n.2. While the 

Commonwealth’s position is not controlling, it refutes any implication by the 

majority that the parties herein are unsure of the trial court’s finding of nonfrivolousness.

Instantly, the trial court conducted a hearing on Appellant’s double 

jeopardy motion, which complied with Rule 587(B)(2). At the conclusion of 
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that proceeding, the court, via its court crier, placed on the record findings 

of fact and conclusions of law and denied the motion. See Pa.R.Crim.P. 

587(B)(3). At no point did the court find Appellant’s motion frivolous. 

Pointedly, in direct response to Appellant’s counsel stating that, in order to 

allow him to appeal, the court had to find his motion non-frivolous, the court 

twice instructed him that the order was appealable. I reproduce the relevant 

exchange in its entirety:

Counsel: Judge, at this point, I would like to take an immediate 

appeal under the authority of United States versus States.[1]

Court: We’ll give this a date. Time will be ruled excludable. 

We’ll give it a three-month status date.

Counsel: Your Honor, if you could issue an order so I can appeal 

it. The only requirement is that you don’t find the issue to 

be frivolous which would allow me to – and I do think based on 

my –

Court: If you want to appeal it, I’ll allow you to appeal it, 

and we’ll issue opinions accordingly.

Court Crier: March 11.

Court: Order is appealable.

N.T., 12/9/13, at 13-14 (emphases added).

 

1

 Appellant mistakenly stated United States instead of Commonwealth. In 

Commonwealth v. States, 938 A.2d 1016, 1019 n.6 (Pa. 2007), the 

Pennsylvania Supreme Court explained that absent a finding of 

frivolousness, appellate courts have jurisdiction to consider appeals from the 

denial of a double jeopardy motion. 
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The majority essentially reasons that the failure to utter the magic 

words that the motion was “non-frivolous” results in the trial court having 

neglected to make such a finding. This not only defies a common sense 

reading of the record, but the very understanding of both Appellant and the 

Commonwealth. Frankly, the majority’s reading of the record and Rule 

587(B) turns one of the purposes of the rule, to avoid delay tactics, on its 

head. If a court telling an attorney that the order is appealable, multiple 

times, in direct response to the attorney’s statement that the court must 

make a finding of non-frivolousness, does not equal compliance with Rule 

587(B)(4), then only the utterance of talismanic words would satisfy the 

majority. This is, of course, inconsistent with our jurisprudence in a host of 

other areas that eschews the importance of articulating such talismanic 

phrases. See also Commonwealth v. Gains, 556 A.2d 870 (Pa.Super. 

1989) (en banc) (“The focus of our Supreme Court's decision in 

[Commonwealth v.] Brady, [508 A.2d 286 (Pa. 1986)], and our focus 

presently, is not upon the presence of the written word "frivolous" in a trial 

court's opinion or order. The focus is upon an express determination on the 

part of the trial court that a double jeopardy claim is frivolous, meaning 

clearly and obviously without merit.”). What is more is that neither Rule 

587(B) nor Commonwealth v. Taylor, 120 A.3d 1017 (Pa.Super. 2015), 

supports the majority’s overly strict construction of the rule. 
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The origins of rule 587(B) illustrate better my reasoning, therefore, a 

brief discussion on the evolution of pre-trial double jeopardy appeals is 

warranted. In Commonwealth v. Bolden, 373 A.2d 90, 93 (Pa. 1977), a 

plurality of our High Court opined, 

We hold that the denial of a pre-trial application to dismiss an 

indictment on the ground that the scheduled trial will violate the 

defendant's right not to be placed twice in jeopardy may be 

appealed before the new trial takes place. Once a defendant is 

erroneously subjected to another prosecution, neither an 

acquittal nor appellate reversal of a conviction is sufficient to 

vindicate his constitutional right not to be placed twice in 

jeopardy. We conclude that the right to be free from multiple 

prosecution[s], embodied in the double jeopardy clause, can be 

adequately protected only by permitting an immediate appeal 

from a trial court's denial of relief.

Subsequently, a majority of the Supreme Court “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. Orie, 22 A.3d 1021, 1024 (quoting 

Commonwealth v. Haefner, 373 A.2d 1094, 1095 (Pa. 1977) (per 

curiam)) (emphasis in Orie). Thereafter, in Brady, supra, our Supreme 

Court narrowed the applicability of a Bolden as-of-right appeal. 

The Brady Court held that where a trial court makes a written finding 

that a double jeopardy motion is frivolous, an automatic Bolden appeal is 

impermissible. See Brady, supra at 291. Currently, the comment to 

Pa.R.A.P. 313 still retains a cite to Brady and indicates only where an 

express finding of frivolousness is found will a collateral appeal be improper. 
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Brady also provided a stay procedure in those cases where a defendant 

wished to challenge a trial court’s finding of frivolousness. However, the 

Brady Court did not identify which appellate court would hear such a 

challenge. 

This Court later determined in Commonwealth v. Learn, 514 A.2d 

910 (Pa.Super. 1986), overruled by Orie, supra, that a stay request had to 

be made to the Pennsylvania Supreme Court. The Learn Court also 

determined that a remand was required to the trial court because it had not 

made a written finding that the double jeopardy motion was frivolous. This 

latter aspect of Learn was expressly overruled by Gains, supra.

The Gains Court, held, “in view of the fact that we presently have no 

written finding by the trial court that appellant's double jeopardy claim is a 

frivolous one, we exercise jurisdiction over this appeal.” Id. at 875. It 

added, “We now expressly overrule the decision of a panel of this Court in 

Commonwealth v. Learn, supra, to the extent that it holds 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.” Id. 

In light of continued confusion over Brady, our Supreme Court 

clarified that decision in Orie, supra and referred the manner in which 

double jeopardy motions should be handled to the rules committee. As a 

result, the Supreme Court adopted Rule 587(B). That rule reads,
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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 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).

The current rule does not state that a trial court’s failure to place on 

the record the magic words of “non-frivolous” results in this Court lacking 

jurisdiction, nor does the comment to the rule so read. Rather, the trial 

court must explicitly find frivolousness in order to trigger a differing 

jurisdictional posture. Our Supreme Court has repeatedly cautioned this 

Court against reading requirements into our procedural rules that do not 

exist by their terms. See Newman Dev. Group of Pottstown, LLC v. 

Genuardi's Family Mkts., Inc., 52 A.3d 1233 (Pa. 2012); see also
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Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (chastising this 

Court for attempting to create a mandatory procedural rule). The official 

note to Pa.R.A.P. 1573, the rule that applies to appealing a determination 

that a double jeopardy motion is frivolous, expressly provides, “If a trial 

court denies such a motion 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.” Official Note, Pa.R.A.P. 1573. The majority’s position 

is inconsistent with this comment. Furthermore, it is not suggested that 

neglecting to use the magic words “non-frivolous” removes jurisdiction. The 

comment to Rule 587(B)(4) itself states, “Paragraph (B)(4) requires the 

judge to make a specific finding whether the motion is being dismissed as 

frivolous.” It does not state that the failure to set forth that the motion is 

non-frivolous precludes jurisdiction under Pa.R.A.P. 313. 

Admittedly, the trial court failed to tell counsel explicitly, although 

counsel already was aware of his right to appeal, that Appellant could appeal 

under the collateral order rule, Pa.R.A.P. 313. This failure, however, does 

not implicate jurisdiction when the attorney files the appropriate appeal in a 

timely fashion.2 Indeed, a trial court’s failure to properly inform a 

defendant that he must appeal within thirty days of the denial of his post-

 

2

 Nothing in my decision should be read as endorsing a trial court’s neglect 

in following our rules of procedure, nor am I attempting to eviscerate or 

broaden the rule. Rather, a plain reading of the rule and the record makes it 

evident that the trial court did not find Appellant’s motion frivolous. A 

remand for a one-sentence order to that effect is unnecessary. 
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sentence motion does not implicate our jurisdiction if the attorney timely 

appeals. The same applies herein. The trial court’s non-compliance with 

Rule 587(B)(6) is harmless precisely because counsel properly appealed and 

the court explicitly declined to find Appellant’s motion frivolous.3 

Moreover, the majority cannot cite any binding or analogous precedent 

in support of its position. The Taylor case simply is not controlling in this 

matter because therein the court did not enter on the record any factual 

findings or conclusions of law nor did it expressly inform the defendant that 

he could appeal after the attorney asked for a finding of non-frivolousness. 

Further, although decided before Rule 587, our decision in Gains, supra is 

instructive. First, I note that our Supreme Court is presumably aware of 

existing law and in fact cited Gains in its most recent double jeopardy case, 

Orie, supra. More importantly, Gains is quoted in the comment to Rule 

587(B)(4). 

At the time of the Gains decision, a written finding of frivolousness 

was required to preclude a Bolden automatic appeal of the denial of a 

motion to dismiss based on double jeopardy. Rule 587(B) alters that 

requirement insofar as it no longer mandates a written finding, and only 

 

3 Appellant in his brief set forth that this Court has jurisdiction over this 

appeal pursuant to Commonwealth v. Haefner, 373 A.2d 1094 (Pa. 

1977), as well as Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977), and 

Commonwealth v. Brady, 508 A.2d 286 (Pa. 1986). He expressly states 

that Pa.R.A.P. 313 authorizes, “non-frivolous appeals as of right from 

collateral orders of the Court of Common Pleas denying a double jeopardy 

claim.” Appellant’s brief at 1. 
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requires a record-based determination of frivolousness. However, the Gains

Court also held that in the absence of an express written finding of 

frivolousness, a remand to afford the trial court such opportunity was 

unwarranted and that the trial court’s silence did not preclude jurisdiction. 

Gains, supra at 875. 

A similar result should obtain here where the trial court made no 

explicit finding of frivolousness on the record and, in fact, instructed 

Appellant on multiple occasions that he could appeal after counsel asked for 

a finding of non-frivolousness. Instead, the majority essentially re-writes 

Rule 587(B)(4) to state that, “In a case in which the judge denies the 

motion, the findings of fact shall include a specific finding as to nonfrivolousness. The failure to do so shall result in the appellate court 

lacking jurisdiction and require a remand.” Compare Pa.R.Crim.P. 

587(B)(4). This is inconsistent with the express language of Rule 587(B), 

the spirit and letter of our en banc decision in Gains, and the official 

comment to Pa.R.A.P. 1573.

In sum, neither Rule 587(B) nor Pa.R.A.P. 1573, nor any precedent, 

compels the majority’s novel reading of Rule 587(B) as mandating a court 

place on the record the magic words of non-frivolousness to confer 

jurisdiction upon this Court. In my view, this Court has jurisdiction and we 

should reach the merits of Appellant’s arguments. I therefore respectfully 

dissent.