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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0001179-2012

BEFORE: BOWES, DONOHUE and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 30, 2015

Jeffery Massi (“Massi”) appeals from the order of court denying his 

motion to dismiss. Upon review, we find it necessary to remand for further 

proceedings. 

We begin with brief factual and procedural histories. In December 

2011, Massi was serving a probationary sentence. On December 28, 2011, 

Probation Agents Butler and Gardner visited Massi’s parents’ home, where 

Massi was residing. Massi’s father let the agents into the home and directed 

them to Massi’s room. Of note, in Massi’s room was an entryway to another 

room (“the utility room”), but no door separated these spaces. 

While speaking with Massi in his room, Agent Butler observed a glass 

pipe in Massi’s dresser. Upon questioning, Massi admitted that he had 

recently used it to smoke marijuana. Based on that admission, Agent Butler 
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and his partner placed Massi under arrest and handcuffed him. While 

subsequently searching Massi’s room, Agent Butler looked into the utility 

room and saw the exposed handle of a firearm. Massi indicated that the 

firearm belonged to his father, that it had been in their family for a long 

time, and that his fingerprints could be on it because he had held it on many 

occasions in the past. Based upon the items that he discovered during this 

home visit, Massi was charged with persons not to possess firearms and 

possession of drug paraphernalia. 

The Commonwealth elected to have a violation of probation hearing 

(“VOP hearing”) prior to the resolution of these criminal charges. The 

Commonwealth alleged that Massi violated his probation by virtue of 

possessing a firearm and possessing drug paraphernalia. At the conclusion 

of the hearing, the VOP court declined to find that Massi violated his 

probation. 

On December 5, 2013, Massi filed a motion seeking to dismiss the 

criminal charges against him based upon the VOP court’s determination that 

he did not possess the firearm or the pipe. Massi argued that collateral 

estoppel prohibited the re-litigation of whether he possessed these items. 

Following argument, the trial court denied Massi’s motion. This appeal 

follows. 

Before we reach the issue Massi has presented for our review, we 

consider whether this Court properly has jurisdiction over this appeal. See 
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Commonwealth v. Gaines, __ A.3d __, 2015 WL 67500712015 at * 2 (Pa. 

Super. Nov. 15, 2015) (providing that this Court may raise issues concerning 

appellate jurisdiction sua sponte). Pennsylvania Rule of Criminal Procedure 

587(B) (“Rule 587(B)”) governs pretrial motions to dismiss based on alleged 

double jeopardy violations. It provides as follows: 

(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.

(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.
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Pa.R.Crim.P. 587(B) (emphasis added).1 At the conclusion of the hearing on 

Massi’s motion, the trial court summarized the parties’ positions, stated its 

conclusions of law and denied the motion. N.T., 12/9/13, at 12-13. Then 

the following dialogue occurred:

[Counsel]: Judge, at this point, I would like to take 

an immediate appeal under the authority of United 

States v. States.

[Trial 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 –

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

to appeal it, and we’ll issue opinions accordingly. 

[Court Crier]: March 11. 

[Trial Court]: Order is appealable. 

Id. at 13-14. 

Notably, at no time did the trial court use the term “frivolous” or “not 

frivolous” when ruling on Massi’s motion. Neither the trial court nor Massi’s 

counsel mention Rule 587(B). In its subsequent order, the trial court makes 

no finding regarding the frivolity of the appeal. To the contrary, it concludes 

that the order is interlocutory and that the appeal must be quashed because 

it is not appealable as of right pursuant to Pa.R.A.P. 311 and Massi did not 

 

1 This Rule became effective on July 4, 2013, five months before the trial 

court entertained Massi’s double jeopardy motion. 
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file a petition seeking permission to file an appeal pursuant to Pa.R.A.P. 

1311. Trial Court Order, 12/17/13. At no point does the trial court evince 

any knowledge or recognition of Rule 587(B) or its requirements. 

Accordingly, we conclude that the trial court did not consider whether 

Massi’s motion was frivolous or not, much less make a specific

determination as to frivolousness, as is required by Rule 587(B)(4). 

Furthermore, even if the trial court’s statement at the hearing could be 

interpreted as finding that Massi’s motion was not frivolous, the trial court 

failed to advise Massi of his appeal rights, as is required by Rule 587(B)(6). 

We will not overlook the trial court’s failure to fulfill the requirements of Rule 

587(B), as to do so would create exceptions to a rule that provides no 

exceptions to its strict instructions. 

In highly similar circumstances, this Court remanded a case for the 

trial court to comply with Rule 587(B). See Commonwealth v. Taylor, 

120 A.3d 1017 (Pa. Super. 2015) (remanding case for trial court to comply 

with Rule 587(B) so Superior Court could determine whether it properly has 

jurisdiction over appeal). Accordingly, we remand this case to the trial court 

for an explicit finding regarding the frivolousness of Massi’s motion and to 

advise him of his appeal rights, as mandated by Rule 587(B). 

Case remanded. Panel Jurisdiction retained. 

Stabile, J. joins the Memorandum.

Bowes, J. files a Dissenting Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2015