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,1the 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.