J-S36006-20

2020 PA Super 223

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES PATRICK KEMICK

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 350 WDA 2020

Appeal from the Order Dated February 7, 2020

In the Court of Common Pleas of McKean County Criminal Division at

No(s): CP-42-CR-0000390-2019

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.* OPINION BY OLSON, J.: FILED SEPTEMBER 15, 2020

Appellant, James Patrick Kemick, appeals from the February 7, 2020

order denying his motion to dismiss the criminal charges1 currently pending

against him on grounds that the prosecution of those charges violates the

protection against double jeopardy and the compulsory joinder rule.2 We

vacate the order and remand this case with instructions. The trial court summarized the factual history as follows:

At McKean County [docket number] 375 CR 2017, [Appellant] was

charged with burglary, criminal attempt to commit burglary, ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellant was charged with one count each of burglary of a home - no person

present, theft by unlawful taking of movable property, receiving stolen

property, and criminal trespass. 18 Pa.C.S.A. §§ 3502(a)(2), 3921(a),

3925(a), and 3503(a)(1)(ii), respectively.

2 The compulsory joinder rule is codified at 18 Pa.C.S.A. § 110 and is set forth

in detail, infra.
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criminal trespass, theft by unlawful taking, [and] loitering and

prowling at night. It was alleged at that [docket] number that on

July 26, 2017, [Appellant] entered a business, the Thrifty

Cleaners, and stole a cash register. At McKean County [docket

number] 453 CR 2017[, Appellant pleaded] guilty to [one] count

of criminal conspiracy/theft by unlawful taking. The facts [in] that

case [were] that [Appellant] and his co-defendant [] stole two

bicycles from [the victim]. This conspiracy occurred in the City of

Bradford[, Pennsylvania,] on September 2, 2017. At McKean

County [docket number] 470 CR 2017[, Appellant pleaded] guilty

to [loitering] and prowling at night for prowling around the

residence [] at 52 Bedford Street[,] Bradford[, Pennsylvania]. The

actions that led to this conviction occurred on August 28, 2017.

At McKean County [docket number] 493 CR 2017[, Appellant

pleaded] guilty to [loitering] and prowling at night. The facts [in

that case] were that [Appellant], on September 6, 2017, loitered

and prowled at a residence at 952 South Avenue, Bradford,

[Pennsylvania].

ln the current case[,] it is asserted that [Appellant], between

August 18, 2017, and August 28, 2017, committed the offenses

of burglary - home, no person present, theft by unlawful

taking[ - movable property], receiving stolen property[,] and

criminal trespass. lt is asserted that he entered the home [] at

955 South Avenue, Bradford, [Pennsylvania]. Trial Court Opinion, 3/27/20, at 2-3 (extraneous capitalization and emphasis

omitted). On October 30, 2019, Appellant filed a motion to dismiss the criminal

charges pending against him in the instant case “due to prohibitions against

double jeopardy under State and Federal Constitutions and the compulsory

joinder rule, and that prosecution of these charges is barred by a former

prosecution[.]” Appellant’s Motion to Dismiss Charges/Criminal Information,

10/30/19, at ¶2. Appellant requested a hearing on the motion to dismiss.

The Commonwealth filed an answer to Appellant’s motion, opposing the
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dismissal of the criminal charges. On January 7, 2020, the trial court

convened a proceeding on Appellant’s motion to dismiss. At the conclusion of

the proceeding, the trial court permitted Appellant and the Commonwealth to

submit briefs on the matter, which both parties timely submitted. On February

7, 2020, the trial court denied Appellant’s motion to dismiss the criminal

charges. This appeal followed.3

Appellant raises the following issues for our review:

[1.] Whether the trial court erred in failing to enter on the record

a statement of findings of fact and conclusions of law, as

required under Pa.R.Crim.P. [] 587(B)(3), in disposing of

[Appellant’s] motion to dismiss charges/criminal

information pursuant to prohibitions against double

jeopardy and under 18 Pa.C.S.[A.] § 110[?]

[2.] Whether the trial court erred by denying [Appellant] the

opportunity to present testimony and evidence at a hearing

pursuant to Pa.R.Crim.P. [] 587(B)(2) in support of his

motion to dismiss charges/criminal information pursuant to

prohibitions against double jeopardy and under 18

Pa.C.S.[A.] § 110[?]

[3.] Whether the trial court erred in denying a motion to dismiss

charges/criminal information pursuant to prohibitions

against double jeopardy and under 18 Pa.C.S.[A.] § 110.[?]

Appellant’s Brief at 4-5 (extraneous capitalization omitted).

Preliminarily, we must determine whether Appellant’s appeal is from a

final, appealable order, thereby invoking the jurisdiction of this Court.4

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3 Appellant and the trial court complied with Pa.R.A.P. 1925.

4

In a March 23, 2020 per curiam order, this Court ordered Appellant to show

cause why this appeal should not be quashed as a premature appeal from an
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Appellant contends that the trial court’s February 7, 2020 order denying his

motion to dismiss the criminal charges is a collateral order and, therefore, is

immediately appealable. Appellant’s Answer to Show Cause Order, 4/27/20,

at 3. “An appeal may be taken as of right from a collateral order of a trial

court[.]” Pa.R.A.P. 313(a). Pennsylvania Rule of Appellate Procedure 313(b)

defines a collateral order as “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.” Id. at 313(b). “Pennsylvania law [] traditionally provided a criminal defendant the right

to an immediate appeal from an order denying a pretrial motion to dismiss on

double jeopardy grounds.” Commonwealth v. Gross, ___ A.3d ___, 2020

WL 2065574, at *10 (Pa. Super. 2020) (en banc), citing Commonwealth v.

Orie, 22 A.3d 1021, 1024 (Pa. 2011); see also Commonwealth v. Haefner, 373 A.2d 1094, 1095 (Pa. 1977) (stating that “pretrial orders denying double

jeopardy claims are final orders for purposes of appeal”). If the trial court

enters an order denying the motion to dismiss on double jeopardy grounds

and in doing so, makes no finding, in writing, that the motion is frivolous, then

the order is a collateral order under Rule 313 and is immediately appealable.

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interlocutory order. Appellant filed a response. On May 5, 2020, in a per

curiam order, this Court discharged the rule to show cause order, advising the

parties that the issue may be raised by the merits panel.
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Gross, 2020 WL 2065574, at *12; see also Commonwealth v. Anthony, 717 A.2d 1015, 1017 (Pa. 1998) (stating, “[t]he denial of a pretrial [m]otion

to [d]ismiss an indictment on double jeopardy grounds is subject to appellate

review unless it appears that the claim is frivolous). “A [m]otion to [d]ismiss

on the basis of the compulsory joinder rule[, codified at 18 Pa.C.S.A. § 110,]

embodies the same constitutional protections underlying the double jeopardy

clause” and, therefore, an order denying such a motion to dismiss is also

immediately appealable as a collateral order, provided the claim is not

frivolous. Anthony, 717 A.2d at 1017. The compulsory joinder rule states,

§ 110. When prosecution barred by former prosecution for

different offense

Although a prosecution is for a violation of a different provision of

the statutes than a former prosecution or is based on different

facts, it is barred by such former prosecution under the following

circumstances:

(1) The former prosecution resulted in an acquittal or in a

conviction as defined in section 109 of this title (relating to

when prosecution barred by former prosecution for the

same offense) and the subsequent prosecution is for:

(i) any offense of which the defendant could have been

convicted on the first prosecution;

(ii) any offense based on the same conduct or arising from

the same criminal episode, if such offense was known to the

appropriate prosecuting officer at the time of the

commencement of the first trial and occurred within the

same judicial district as the former prosecution unless the

court ordered a separate trial of the charge of such offense;

or

(iii) the same conduct, unless:
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(A) the offense of which the defendant was formerly

convicted or acquitted and the offense for which he is

subsequently prosecuted each requires proof of a fact not

required by the other and the law defining each of such

offenses is intended to prevent a substantially different

harm or evil; or

(B) the second offense was not consummated when the

former trial began.

(2) The former prosecution was terminated, after the

indictment was found, by an acquittal or by a final order or

judgment for the defendant which has not been set aside,

reversed or vacated and which acquittal, final order or

judgment necessarily required a determination inconsistent

with a fact which must be established for conviction of the

second offense.

(3) The former prosecution was improperly terminated, as

improper termination is defined in section 109 of this title

(relating to when prosecution barred by former prosecution

for the same offense) and the subsequent prosecution is for

an offense of which the defendant could have been

convicted had the former prosecution not been improperly

terminated.

18 Pa.C.S.A. § 110.

Here, Appellant appeals the trial court order denying his motion to

dismiss the criminal charges pending against him on grounds that the

prosecution of those charges violates the protection against double jeopardy

and the compulsory joinder rule. Appellant’s Brief at 15-16. A review of the

record demonstrates that the trial court, in denying Appellant’s motion to

dismiss, did not make a finding on the record that Appellant’s claim was

frivolous. See Trial Court Order, 2/7/20; see also N.T., 1/7/20, at 1-13; Trial

Court Opinion, 3/27/20, at 1-13. Therefore, the trial court’s order denying
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Appellant’s motion to dismiss is a collateral order and immediately appealable.

We now consider the merits of Appellant’s issues.

We consider Appellant’s first and second issues in tandem as we find

them dispositive of this matter. Appellant’s first issue asserts that the trial

court “erred in failing to enter on the record a statement of findings of fact

and conclusions of law in disposing of Appellant’s” motion to dismiss the

criminal charges as required by Rule 587(B)(3). Appellant’s Brief at 16-18.

In his second issue, Appellant asserts that the trial court “erred by denying

[Appellant] the opportunity to present testimony and evidence at a hearing,

pursuant to [] Rule 587(B)(2), in support of his” motion to dismiss the criminal

charges. Id. at 18-21.

The interpretation of and the application of the Pennsylvania Rules of

Criminal Procedure present questions of law for which our standard of review

is de novo and our scope of review plenary. Commonwealth v. Phillips, 141 A.3d 512, 518 (Pa. Super. 2016), appeal denied, 161 A.3d 796 (Pa.

2016). Pennsylvania Rule of Criminal Procedure 587(B) states, Rule 587. Motion for Dismissal . . . (B) Double Jeopardy

(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.
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(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)(1-6). The term “‘[h]earing,’ as used in paragraph (B)(2)

includes the taking of testimony, or the hearing of argument, or both.” Id. at

Official Comments. Here, the record demonstrates that, on January 7, 2020, the trial court

brought the parties together to address Appellant’s motion to dismiss the

criminal charges. During the proceeding, the trial court did not admit

testimony or hear argument in support of, or in opposition to, the claim that

prosecution of Appellant’s pending criminal charges violates the double

jeopardy clause or the compulsory joinder rule. N.T., 1/7/20, at 1-20. Rather,

the trial court listened to presentations by counsel on whether an evidentiary

hearing on Appellant’s motion to dismiss was necessary. Id. at 3-4. At the

conclusion of the proceeding, the trial court ordered the parties to file briefs
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addressing the merits of the issue.5 Id. at 9. The trial court stated, “[i]f

something comes up in the [b]riefs that demonstrates [] that further evidence

is needed, then [the trial court] would reconsider [the request for a hearing]

and limit the hearing to calling certain witnesses; but [the trial court does not]

believe that will happen legally.” Id. at 10. At the conclusion of the

proceeding, the trial court did not enter any findings of fact or conclusions of

law on the record. Id. at 13. The trial court did not convene a subsequent

hearing for the purpose of taking testimony or hearing argument on

Appellant’s motion to dismiss or in order that the trial court could enter its

findings of fact and conclusions of law on the record before denying Appellant’s

motion to dismiss. Moreover, the February 7, 2020 order denying Appellant’s

motion to dismiss the criminal charges failed to set forth, on the record, any

findings of fact or conclusions of law. In its Rule 1925(a) opinion, the trial

court stated, It was clear that [Appellant] had, in fact, been prosecuted and

convicted of previous offenses similar in nature and in the same

general time period asserted in the current case. The [trial] court

concluded that the facts were not in dispute. Specifically, the

[trial] court concluded that [Appellant’s] assertion that he had

been involved in a string of burglaries and thefts over about a

two-month time period in [the City of] Bradford[, Pennsylvania]

and [in] Bradford Township, Pennsylvania, including the activity

asserted in this case, was accurate. Since these facts were not in

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5 Appellant was prepared to present the testimony of several witnesses at the

proceeding, including the testimony of six investigating police officers and

three civilians. Appellant offered the witnesses in support of his motion to

dismiss, as their proposed testimony related to the prior cases and current

case. N.T., 1/7/20, at 6.
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dispute the [trial] court concluded that the parties should file legal

briefs addressing whether these undisputed facts supported a

double jeopardy claim.

Trial Court Opinion, 3/27/20, at 2.

Based upon our review of the limited record and the applicable rules of

criminal procedure, we find the trial court erred in its failure to follow the

requirements of Rule 587(B). Although the trial court had discretion, vis-à-vis

Rules 587(B)(2) and 577,6in determining whether a hearing on Appellant’s

motion to dismiss was necessary, Rule 587(B) clearly required the trial court

to develop a record, by some means, in order that it could make findings of

fact, reach conclusions of law, and issue an order either granting or denying

the motion to dismiss. See Pa.R.Crim.P. 587(B)(2) and (3). A record can be

developed by conducting a hearing, as defined by the official comments to

Rule 587, or by other means, such as, conducting a proceeding for the purpose

of admitting evidence or taking judicial notice of other proceedings and

documents to generate a factual record pertinent to claims asserting double

jeopardy and compulsory joinder.

In the instant case, the trial court did not conduct a hearing, as defined

by the official comments to Rule 587, that provided Appellant and the

Commonwealth the opportunity to present testimony in support of, or to

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6 Pennsylvania Rule of Criminal Procedure 577(A)(2) provides that following

the filing of a motion, if the trial court determines that the motion requires a

hearing or argument, a hearing on the matter shall be scheduled.

Pa.R.Crim.P. 577(A)(2).
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refute, the claim that the Appellant’s prosecution for the aforementioned

criminal charges violates double jeopardy protections or the compulsory

joinder rule. Moreover, the trial court did not conduct a hearing to develop a

record by means of admitting evidence, i.e. other case records, or taking

judicial notice of the other proceedings and documents.

The trial court, having failed to develop a record, further failed to

memorialize its findings of fact and conclusions of law on the record, as well

as make a specific finding, upon denial of Appellant’s motion to dismiss, as to

the frivolousness of the motion to dismiss and provide the requisite notice for

appellate review. See Pa.R.Crim.P. 587(B)(3) (stating, “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”); see also Pa.R.Crim.P. 587(B)(4) (stating, “In a case in which the

judge denies the motion, the findings of fact shall include a specific finding as

to frivolousness”). Consequently, we are constrained to vacate the

February 7, 2020 order and remand this matter to the trial court for the

purpose of conducting a hearing in accordance with Rule 587 and as

contemplated by this decision. The hearing shall be held within 90 days of

this decision.7 At the conclusion of the hearing, the trial court shall state on

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7

In the event that the trial court is closed at any point during the 90-day

period due to the COVID-19 pandemic, the 90-day period shall be extended

for an amount of time equal to any such closure.
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the record its findings of fact and conclusions of law. Thereafter, the trial

court shall enter an order disposing of Appellant’s motion to dismiss the

pending criminal charges, including a declaration as to whether Appellant’s

motion to dismiss is frivolous, if the trial court denies the motion.8If the trial

court denies the motion, the trial court shall also advise Appellant in

accordance with either Rule 587(B)(5) or (6), based upon the trial court’s

determination of frivolousness, of Appellant’s right of review or to an

immediate appeal.

Order vacated. Case remanded with instructions.9 Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/15/2020

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8 Absent the trial court’s compliance with Rule 587, we are unable to address

Appellant’s remaining issue. 9 The prothonotary of this Court shall return the certified record to the trial

court upon the filing of this decision.