### J-S59008-16

NON

### -PRECEDENTIAL DECISION - SEE 

### SUPERIORCOURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA,

1 IN THE SUPERIOR COURT OF PENNSYLVANIA

v. JOHNNYJENKINS, Appellee



### Appellant No. 2015 EDA 2015 Appeal

### fromthe Order Entered May 27, 2015 In the Court ofCommon 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, JohnnyJenkins, appeals

### from the

### trial court'sorder 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 courtfor itto 

### complywith the requirements of Pa.R.Crim.P. 

### 587(B). We 

### briefly set 

### forth the facts and procedural 

### history of this 

### matter. The

### trial courtsummarized thefactual 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

* FormerJusticespecially assigned to

### the SuperiorCourt.

### J-S59008-16
vehicle on June 16, 2012 and 

### arrested. 

### [Appellant] gave a 

### statement admitting to stealing the car the 

### first time from the 

### complainant, then again 

### fromthe 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 May27, 2015, 

### Appellantfiled a 

### motion to quash based on double

### jeopardy, arguing 

### thatthe 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 Briefat 3.



## -2

### J-S59008-16

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 notaddress how an appeal may betaken as of 

### rightfrom the 

### trial court'sorder 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 

### jeopardygrounds. 

### Taylor, 120A.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 

### rightfrom a 

### collateral orderof an 

### administrative agencyor 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 

# -3-

### J-S59008-16
final 

### judgment in the case, the claim will be 

### irreparably lost.
Note: Rule 313 is a 

### codification of existing case law 

### with respectto 

### collateral orders. 

### See

### Pugarv. 

### 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 ordersdenyingpre

## -trialmotionsto

### dismissbasedon 

### double

### jeopardyin 

### whichthe

### courtdoes

### notfindthe 

### 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 

### eventthe 

### court deniesthe double 

### jeopardy motion. Subsection 

### (B)(5) requires the 

### trial court, if itfinds 

### 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 ofthe 

### 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 notfind thedouble

### jeopardy motion to be

### frivolous. 

### Taylor, 120A.3d at 1022-23 

### (footnoteomitted). 

## -4

### J-S59008-16

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, 

### interalla, 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 ofthe 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 

### requirethe

## trialjudgetomakea

### 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

## ofthe

### judge's reasons

### forhis

### orherfindings. 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). 

## -5

### J-S59008-16

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 

### exertjurisdiction.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). Ordervacated. 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 courtof his appeal 

### rights as required by Rule 

### 587(b)(5) or 

### (6). 

## -6