J-E04004-17

2020 PA Super 107

COMMONWEALTH OF PENNSYLVANIA

v.

EMILY JOY GROSS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 375 EDA 2016

Appeal from the Order January 15, 2016

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

No(s): CP-45-CR-0000045-2010

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., 

SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

CONCURRING OPINION BY OLSON, J.: FILED APRIL 29, 2020

I join the learned majority’s opinion in full. However, I write separately 

to address some concerns that the learned dissents have ably expressed.

The learned dissents view compliance with Pennsylvania Rule of Criminal 

Procedure 587 as a prerequisite for appellate jurisdiction. According to the 

dissenters, Rule 587 implicates our jurisdiction because the trial court’s denial 

of a defendant’s pre-trial double jeopardy motion only qualifies as a collateral 

order where “a trial court [makes a] factual finding[] that [the] double 

jeopardy motion is not frivolous.” Judge Stabile’s Dissenting Opinion at *6

(emphasis added); see also Judge Dubow’s Dissenting Opinion at *6 (“[i]f 

the trial court finds the [defendant’s double jeopardy] motion to have merit, 

a defendant may appeal pursuant to Pa.R.A.P. 313”). From this starting point, 

the dissenters posit that, since our jurisdiction is not perfected until the trial 

court determines that the double jeopardy motion is “not frivolous,” and since 
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Rule 587 provides the mechanism by which the trial court determines whether 

the motion is or is not frivolous, compliance with Pennsylvania Rule of Criminal 

Procedure 587 is a precondition for appellate jurisdiction.

However, and respectfully, I believe that the dissenters’ starting point

is erroneous, as it is contrary to our Supreme Court’s holdings, and that this 

faulty starting point corrupts their entire analysis. 

In Commonwealth v. Orie, the Pennsylvania Supreme Court examined 

the historical derivation and the current status of a defendant’s right to appeal 

the denial of his or her pre-trial motion to dismiss on double jeopardy grounds. 

As the Orie Court explained:

Generally, criminal defendants have a right to appeal a trial 

court's pre-trial double jeopardy determination under 

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

(plurality opinion). While Bolden was a plurality decision, a 

per curiam decision by the [Pennsylvania Supreme] Court 

shortly thereafter made clear that a [Supreme] Court 

majority agreed with the important narrow proposition that 

“pretrial orders denying double jeopardy claims are final 

orders for purposes of appeal.” Commonwealth v. 

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

(emphasis added).

Eight years later, in [Commonwealth v. Brady, 508 A.2d 

286 (Pa. 1986), the Pennsylvania Supreme] Court considered 

the question of whether a Bolden of-right appeal should be 

permitted to go forward when the trial court has concluded 

that the double jeopardy motion is frivolous. The Brady

Court held that where the trial court makes a written 

statement finding that the pre-trial double jeopardy challenge 

is frivolous, a Bolden-style interlocutory appeal will not be 

permitted because it would only serve to delay prosecution. 

In reaching this conclusion, the Brady Court noted that 

precluding Bolden appeals and automatic stays of retrial 
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upon a written finding that the claim is frivolous still affords 

the defendant “the opportunity to initially assert his claim 

before a tribunal and retrial is not permitted unless the claim 

is shown to the satisfaction of that court to be frivolous.” ...

[T]he Brady Court [also] envisioned a preliminary avenue for 

limited appellate review of the trial court's written finding that 

a defendant's double jeopardy challenge was frivolous via a 

stand-alone stay procedure, which would be unrelated to a 

pending appeal as of right.

Commonwealth v. Orie, 22 A.3d 1021, 1024-1025 (Pa. 2011).

Thus, as the Orie Court explained, an order denying a pre-trial motion 

to dismiss on double jeopardy grounds is, as a general matter, immediately 

appealable. An exception to this general rule of appealability exists if, but 

only if, the trial court “makes a written statement finding that the pre-trial 

double jeopardy challenge is frivolous.” Id.; see also Brady, 508 A.2d at 

291 (“an 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”). 

Indeed, the Pennsylvania Supreme Court recently adopted and 

published an amendment to the official note to Pennsylvania Rule of Appellate 

Procedure 313, governing collateral orders, which will become effective 

August 1, 2020. The amended official note reads:

Pennsylvania appellate courts have found a number of 

classes of orders to fit the collateral order definition. . . . 

Examples include . . . an order denying a pre-trial motion 

to dismiss on double jeopardy grounds if the trial court 

does not also make a finding that the motion to dismiss 

is frivolous. See Commonwealth v. Brady, 508 A.2d 286, 
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289–91 (Pa. 1986) (allowing an immediate appeal from 

denial of double jeopardy claim under collateral order 

doctrine where trial court does not make a finding of 

frivolousness); Commonwealth v. Orie, 22 A.3d 1021 (Pa. 

2011). An order denying a pre-trial motion to dismiss 

on double jeopardy grounds that also finds that the 

motion to dismiss is frivolous is not appealable as of 

right as a collateral order, but may be appealable by 

permission under Pa.R.A.P. 1311(a)(3).

Pa.R.A.P. 313 note (effective August 1, 2020) (emphasis added).

The amended note clarifies that an order denying a pre-trial motion to 

dismiss on double jeopardy grounds is immediately appealable as a collateral 

order unless the trial court makes a written finding that the motion to dismiss 

is frivolous. See id. 

Finally, the note to Pennsylvania Rule of Appellate Procedure 1573, 

which is effective until August 1, 2020, repeats this principle of law, by stating: 

“[i]f a trial court denies [a motion to dismiss on double jeopardy grounds] 

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.” Pa.R.A.P. 1573 note (emphasis added).

Therefore, I believe that the dissenters are incorrect in concluding that 

the denial of a double jeopardy motion is not appealable under Rule 313 unless 

the “trial court [makes a] factual finding[] that [the] double jeopardy motion 

is not frivolous.” Rather, under our Supreme Court’s decisions in Bolden, 

Haefner, Brady, and Orie and, under Pennsylvania Rule of Appellate 

Procedure 313, the trial court’s denial of a pre-trial double jeopardy motion is 
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immediately appealable as a collateral order unless the trial court determines 

that the motion is frivolous. 

When starting with the correct viewpoint – the viewpoint required by 

our Supreme Court’s precedent, the amended note to Rule 313, and the note 

to Rule 1573 – it is apparent that compliance with Pennsylvania Rule of 

Criminal Procedure 587 is not a precondition to our jurisdiction, as our 

jurisdiction is perfected upon appeal – unless the trial court makes a written 

finding that the motion is frivolous.

Contrary to Judge Stabile’s statement, this jurisdictional issue does not 

make compliance with Rule 587 “optional” with the trial court. See Judge 

Stabile’s Dissenting Opinion at *6. To be sure, Rule 587 delineates the 

mandatory procedure by which the trial court must hear and decide a double 

jeopardy motion. If a trial court violates Rule 587, the parties are free to raise 

this issue on appeal. It is my belief that the trial court violated Rule 587 in 

this case.1 However, the parties in this case did not assert any claim that the 

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1

In my view, the trial court failed to comply with the terms of Rule 587 in 

denying Appellant’s motion to dismiss on the basis of double jeopardy. Rule 

587 states in relevant part:

(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 
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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 the 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) (emphasis added). Pursuant to this rule, a 

hearing on the record is mandatory when a defendant files a motion to dismiss 

on the basis of double jeopardy. At the conclusion of the hearing, the trial 

court is required to make a specific finding on the record as to whether the 

motion is granted or denied. If it is denied, the trial court must make an 

express finding on the record as to whether the motion is frivolous. The trial 

court’s determination of whether the motion is frivolous is mandatory as the 

trial court must then advise the defendant on the record as to his or her 

appellate rights. If the motion is deemed to be frivolous, the trial court shall 

advise the defendant that he or she may file a petition for review. If the 

motion is not deemed to be frivolous, the trial court shall advise the defendant 

that the order is deemed to be a collateral order and he or she may seek an 

immediate appeal. 

It is my view that, in this case, the trial court erred in not holding a hearing 

on the record, in failing to make the express findings on the record as to 

frivolousness and in failing to advise Appellant of her appellate rights. 

Accordingly, I believe that Appellant could have appealed on the basis that 

the trial court failed to follow the dictates of Rule 587. However, Appellant 
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trial court violated Rule 587 and the existence of a procedural mistake by the 

trial court cannot, in and of itself, divest this Court of subject matter 

jurisdiction where our jurisdiction is otherwise properly established. C.f. 

Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007) (“[t]he existence 

of a procedural mistake in and of itself . . . does not divest the trial court of 

subject matter jurisdiction”). 

Pennsylvania Rule of Appellate Procedure 313 and our Supreme Court’s 

precedent define the appealability of the order in this case – and, as the 

majority correctly holds, the order is appealable because the trial court denied 

Appellant’s pre-trial motion to dismiss on double jeopardy grounds and the 

trial court did not make a written finding that the motion was frivolous. Orie, 

22 A.3d at 1024-1025; Pa.R.A.P. 313; see also Bolden, 373 A.2d at 105 

(plurality); Haefner, 373 A.2d at 1095 (per curiam); Brady, 508 A.2d at 291. 

Pennsylvania Rule of Criminal Procedure 587 is inapplicable to the issue of

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did not raise this issue on appeal and this procedural rule violation is not an 

issue which we may raise sua sponte. See Commonwealth v. Colavita, 993 

A.2d 874, 891 (Pa. 2010) (holding that, generally, “[w]here the parties fail to 

preserve an issue for appeal, the Superior Court may not address that issue 

sua sponte”) (quotations and citations omitted); see also In re Estate of 

Tscherneff, 203 A.3d 1020, 1027 (Pa. Super. 2019) (noting that there are 

only “a few discrete, limited non-jurisdictional issues that courts may raise 

sua sponte”).

Although the trial court failed to follow Rule 587, such failure does not deprive 

this Court of jurisdiction. Instead, jurisdiction is conferred upon this Court as 

the order entered was a collateral order pursuant to Pennsylvania Rule of 

Appellate Procedure 313 and our Supreme Court’s holdings in Bolden, 

Haefner, Brady, and Orie.
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whether this Court has jurisdiction in the case at bar and should not serve as 

the touchstone for any jurisdictional analysis here.

President Judge Emeritus Bender and Judge Bowes join the concurring 

opinion.