J-S59008-16 

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

COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. 

JOHNNY JENKINS, 

Appellee 

Appellant No. 2015 EDA 2015 

Appeal from the Order Entered May 27, 2015 

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP- 51 -CR- 0013768 -2012 

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.* 

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 24, 2016 

Appellant, Johnny Jenkins, appeals from the trial court's order denying 

his motion to quash based on double jeopardy. After careful review, we are 

compelled to vacate the May 27, 2015 order and remand this matter to the 

trial court for it to comply with the requirements of Pa.R.Crim.P. 587(B). 

We briefly set forth the facts and procedural history of this matter. 

The trial court summarized the factual background as follows: 

The allegations are that on May 24, 2012, the complainant 

took his car[] to be serviced at a garage and left the key with 

[Appellant]. When he returned to pick up the car, it was gone 

and a witness said [Appellant] had taken it. The car was 

recovered unoccupied on June 9, 2012. It was towed to the 

Major Crimes Auto Squad lot, where it was stored. The vehicle 

was last seen on the lot on June 12, 2012, and was reported 

stolen again on June 14, 2012. [Appellant] was stopped in the 

* Former Justice specially assigned to the Superior Court. 
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vehicle on June 16, 2012 and arrested. [Appellant] gave a 

statement admitting to stealing the car the first time from the 

complainant, then again from the police impound lot. 

Trial Court Opinion (TCO), 11/25/15, at 4 (footnote and internal citation 

omitted). 

On April 29, 2015, Appellant pled guilty to unauthorized use of an 

automobile in the case involving the vehicle theft from the impound lot in 

June 2012. Id. at 2 -4. The case involving the original May 24, 2012 vehicle 

theft was scheduled for trial on May 27, 2015. Id. at 3. On May 27, 2015, 

Appellant filed a motion to quash based on double jeopardy, arguing that the 

above -stated thefts represent an ongoing or common crime, and that the 

Commonwealth's failure to join Appellant's cases constitutes double 

jeopardy. See id.; N.T. Hearing, 5/27/15, at 3 -4. Argument on Appellant's 

motion to quash occurred that same day, and the trial court denied it. TCO 

at 3. Further, the trial - scheduled to take place that day- was continued 

because a witness for the Commonwealth failed to appear. Id. 

Subsequently, on June 26, 2015, Appellant filed a notice of appeal 

challenging the trial court's order denying his motion to quash based on 

double jeopardy. Id. 

In his appeal, Appellant raises a single issue for our review: 

Did the Honorable Judge ... commit legal error when the [c]ourt 

denied [Appellant's] Motion to Bar Prosecution Because of 

Double Jeopardy, where the Commonwealth failed to engage in 

compulsory joinder? 

Appellant's Brief at 3. 

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Before turning to the merits of Appellant's argument, we must 

determine if we may exercise jurisdiction over this appeal. Initially, we 

acknowledge that issues of jurisdiction may be raised sua sponte. 

Commonwealth v. Taylor, 120 A.3d 1017, 1021 (Pa. Super. 2015) 

(citation omitted). Moreover, "[w]hen considering the proper exercise of 

appellate jurisdiction, our review is de novo, and the scope of review is 

plenary." Id. at 1021, n.8 (citation omitted). Here, Appellant claims that 

this Court has jurisdiction pursuant to Pa.R.A.P. 311, which pertains to 

interlocutory appeals as of right. See Appellant's Brief at 1. However, 

Appellant does not address how an appeal may be taken as of right from the 

trial court's order denying his motion to quash, and we cannot discern how 

Rule 311 is applicable to the case at bar. Further, this Court has previously 

determined that it does not have jurisdiction, pursuant to Rule 311, over an 

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

jeopardy grounds. Taylor, 120 A.3d at 1021. As such, we cannot conclude 

that we have jurisdiction on this basis. 

Notwithstanding, we may be able to exert jurisdiction over this appeal 

to the extent it qualifies as a collateral order under Pa.R.A.P. 313. See id. 

Pennsylvania Rule of Appellate Procedure 313 states: 

(a) General rule. An appeal may be taken as of right from a 

collateral order of an administrative agency or lower court. 

(b) Definition. 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 

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final judgment in the case, the claim will be irreparably 

lost. 

Note: Rule 313 is a codification of existing case law with 

respect to collateral orders. See Pugar v. Greco, 483 Pa. 

68, 73, 394 A.2d 542, 545 (1978) (quoting Cohen v. 

Beneficial Industrial Loan Corp., 337 U. S. 541 

(1949)[)]. Examples of collateral orders include 

orders denying pre -trial motions to dismiss based on 

double jeopardy in which the court does not find the 

motion frivolous, Commonwealth v. Brady, 510 Pa. 

336, 508 A.2d 286, 289 -91 (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); if the trial court finds the 

motion frivolous, the defendant may secure review 

only by first filing a petition for review under 

Pa.R.A.P. 1573. See Commonwealth v. Orie, 22 A.3d 

1021 (Pa. 2011).... 

If an order falls under Rule 313, an immediate appeal may 

be taken as of right simply by filing a notice of appeal. 

The procedures set forth in Rules 341(c) and 1311 do not 

apply under Rule 313. 

Pa.R.A.P. 313 (emphasis added). 

Furthermore, this Court has explained: 

To establish whether a motion to dismiss on double jeopardy 

grounds qualifies as a collateral order, trial courts must now, 

inter alia, satisfy [Pa.R.Crim.P.] 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 denies the 

double jeopardy motion. 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. 

Taylor, 120 A.3d at 1022 -23 (footnote omitted). 

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In the case sub judice, the trial court did not satisfy the requirements 

of Rule 587(B). Our reading of the argument transcript does not 

demonstrate that the trial court complied with Rule 587(B)(3), which 

requires, inter alla, the court to enter on the record a statement of findings 

of fact and conclusions of law. Following the argument, the trial court did 

not contemporaneously place on the record such a statement.' See N.T. 

Hearing at 7. Further, we could identify no specific finding on the record in 

accordance with Rule 587(B)(4) regarding whether Appellant's motion is 

frivolous, and this finding directly implicates our jurisdiction. See Note to 

Pa.R.A.P. 313 ( "Examples of collateral orders include orders denying pre -trial 

motions to dismiss based on double jeopardy in which the court does not 

find the motion frivolous; if the trial court finds the motion frivolous, the 

' In Taylor, we took note of the final report on Rule 587(B) issued by the 

Criminal Procedure Rules Committee, which states: 

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. 

Taylor, 120 A.3d at 1022 n.10 (quoting Motion to Dismiss Based on Double 

Jeopardy Grounds Final Report, 6/4/2013, at 3) (emphasis added). 

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defendant may secure review only by first filing a petition for review under 

Pa.R.A.P. 1573. ") (internal citation omitted). Without this finding, we are 

unable to determine if we may exert jurisdiction.2 Accordingly, we vacate 

the May 27, 2015 order and remand this matter to the trial court for it to 

comply with the requirements of Rule 587(B). 

Order vacated. Case remanded. Jurisdiction relinquished. 

Judgment Entered. 

J: seph D. Seletyn, 

Prothonotary 

Date: 10/24/2016 

2 The record also does not demonstrate that Appellant was advised by the 

trial court of his appeal rights as required by Rule 587(b)(5) or (6). 

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