J-A07043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : APRIL LYNN GLADFELTER : : No. 1317 MDA 2017 Appellant :
Appeal from the Order Entered July 20, 2017 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000939-2017
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 26, 2018
Appellant April Lynn Gladfelter appeals from the order entered by the
Court of Common Pleas of York County denying her motion to dismiss
pursuant to 18 Pa.C.S.A. § 110. After careful review, we remand with
instructions.
On November 4, 2016, Appellant was arrested in York County and
charged with access device fraud, identity theft, theft by unlawful taking, and
receiving stolen property in connection with Appellant’s theft of victim
Breeanna Kidd’s purse and her unauthorized use of one of Ms. Kidd’s credit
cards. These charges were docketed at CP-67-CR-0008113-2016.
At Appellant’s preliminary hearing in this prior case, Appellant returned
the stolen property to Ms. Kidd, including her purse. Thereafter, Ms. Kidd
turned over to York County detectives a small brown card holder she found in
____________________________________ * Former Justice specially assigned to the Superior Court. J-A07043-18
her purse that contained Pennsylvania and Alaska driver’s licenses belonging
to Steven Dapcevich. On December 14, 2016, Mr. Dapcevich contacted police
to report that his licenses had been stolen somewhere between November 1
and November 8, 2016 from his girlfriend’s car, which had been parked
outside Mr. Dapcevich’s home in York. Based on this new information,
Appellant was charged in the instant case with theft by unlawful taking and
receiving stolen property at docket CP-67-CR-0000939-2017.
On May 1, 2017, Appellant entered a nolo contendere plea to access
device fraud in the prior case and the remaining charges at docket 8113-2016
were nolle prossed by the Commonwealth. On July 13, 2017, in the instant
case, Appellant filed a motion to dismiss pursuant to 18 Pa.C.S.A. § 110,
alleging that the charges in the instant case should have been prosecuted with
the charges at docket 8113-2016 based on compulsory joinder principles.
Following a hearing, the trial court denied Appellant’s motion, finding that the
two crimes did not arise from a single criminal episode. However, the trial
court did not make specific findings as to the frivolousness of the motion.
Order, 7/20/17, at 1-2.
Appellant filed a timely notice of appeal and complied with the trial
court’s direction to submit a Concise Statement of Errors Complained of on
Appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a).
Appellant raises one issue for our review:
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The trial court erred when it denied Appellant’s Motion to Dismiss based on 18 Pa.C.S. § 110 because the current offense is based on the same conduct or arising from the same criminal episode as the former offense, and there is a logical and temporal relationship between the two cases. Both offenses occurred at about the same time, the former and current offenses are either the same or have similar elements, the cases have a duplication of witnesses and facts, and the cases are factually similar given the current victim’s wallet was contained within the former victim’s purse.
Appellant’s Brief, at 4.
As an initial matter, we must determine whether we have jurisdiction
over this appeal. Issues of jurisdiction may be raised sua sponte.
Commonwealth v. Taylor, 120 A.3d 1017, 1021 (Pa.Super. 2015). Our
Supreme Court has established that “orders denying a defendant’s motion to
dismiss on double jeopardy grounds are appealable as collateral orders, so
long as the motion is not found to be frivolous.” Id. at 1021-22 (citing
Commonwealth v. Brady, 510 Pa. 336, 345-46, 508 A.2d 286, 291 (Pa.
1986)).1 “A [m]otion to [d]ismiss on the basis of the compulsory joinder rule
of [18 Pa.C.S.A.] § 110 embodies the same constitutional protections
underlying the double jeopardy clause justifying interlocutory appeal of such
claims.” Commonwealth v. Anthony, 553 Pa. 55, 60, 717 A.2d 1015, 1017
(1998).
____________________________________________
1 Pennsylvania Rule of Appellate Procedure 313(b) provides that “[a] collateral order is an order separable 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. Pa.R.A.P. 313(b).
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In 2013, Pennsylvania Rule of Criminal Procedure 587 was amended to
include provisions governing pretrial double jeopardy motions. Rule 587(B)
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.
Pa.R.Crim.P. 587(B) (emphasis added).
This Court has previously interpreted a trial court’s responsibilities
pursuant to Pa.R.Crim.P. 587(B) as follows:
To establish whether a motion to dismiss on double jeopardy grounds qualifies as a collateral order, trial courts must now, inter alia, satisfy Rule 587(B)(3), (4), (5), and (6). Subsection (B)(3) requires the trial court, following a hearing, to enter on the record
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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.
Commonwealth v. Diggs, 172 A.3d 661
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J-A07043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : APRIL LYNN GLADFELTER : : No. 1317 MDA 2017 Appellant :
Appeal from the Order Entered July 20, 2017 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000939-2017
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 26, 2018
Appellant April Lynn Gladfelter appeals from the order entered by the
Court of Common Pleas of York County denying her motion to dismiss
pursuant to 18 Pa.C.S.A. § 110. After careful review, we remand with
instructions.
On November 4, 2016, Appellant was arrested in York County and
charged with access device fraud, identity theft, theft by unlawful taking, and
receiving stolen property in connection with Appellant’s theft of victim
Breeanna Kidd’s purse and her unauthorized use of one of Ms. Kidd’s credit
cards. These charges were docketed at CP-67-CR-0008113-2016.
At Appellant’s preliminary hearing in this prior case, Appellant returned
the stolen property to Ms. Kidd, including her purse. Thereafter, Ms. Kidd
turned over to York County detectives a small brown card holder she found in
____________________________________ * Former Justice specially assigned to the Superior Court. J-A07043-18
her purse that contained Pennsylvania and Alaska driver’s licenses belonging
to Steven Dapcevich. On December 14, 2016, Mr. Dapcevich contacted police
to report that his licenses had been stolen somewhere between November 1
and November 8, 2016 from his girlfriend’s car, which had been parked
outside Mr. Dapcevich’s home in York. Based on this new information,
Appellant was charged in the instant case with theft by unlawful taking and
receiving stolen property at docket CP-67-CR-0000939-2017.
On May 1, 2017, Appellant entered a nolo contendere plea to access
device fraud in the prior case and the remaining charges at docket 8113-2016
were nolle prossed by the Commonwealth. On July 13, 2017, in the instant
case, Appellant filed a motion to dismiss pursuant to 18 Pa.C.S.A. § 110,
alleging that the charges in the instant case should have been prosecuted with
the charges at docket 8113-2016 based on compulsory joinder principles.
Following a hearing, the trial court denied Appellant’s motion, finding that the
two crimes did not arise from a single criminal episode. However, the trial
court did not make specific findings as to the frivolousness of the motion.
Order, 7/20/17, at 1-2.
Appellant filed a timely notice of appeal and complied with the trial
court’s direction to submit a Concise Statement of Errors Complained of on
Appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a).
Appellant raises one issue for our review:
-2- J-A07043-18
The trial court erred when it denied Appellant’s Motion to Dismiss based on 18 Pa.C.S. § 110 because the current offense is based on the same conduct or arising from the same criminal episode as the former offense, and there is a logical and temporal relationship between the two cases. Both offenses occurred at about the same time, the former and current offenses are either the same or have similar elements, the cases have a duplication of witnesses and facts, and the cases are factually similar given the current victim’s wallet was contained within the former victim’s purse.
Appellant’s Brief, at 4.
As an initial matter, we must determine whether we have jurisdiction
over this appeal. Issues of jurisdiction may be raised sua sponte.
Commonwealth v. Taylor, 120 A.3d 1017, 1021 (Pa.Super. 2015). Our
Supreme Court has established that “orders denying a defendant’s motion to
dismiss on double jeopardy grounds are appealable as collateral orders, so
long as the motion is not found to be frivolous.” Id. at 1021-22 (citing
Commonwealth v. Brady, 510 Pa. 336, 345-46, 508 A.2d 286, 291 (Pa.
1986)).1 “A [m]otion to [d]ismiss on the basis of the compulsory joinder rule
of [18 Pa.C.S.A.] § 110 embodies the same constitutional protections
underlying the double jeopardy clause justifying interlocutory appeal of such
claims.” Commonwealth v. Anthony, 553 Pa. 55, 60, 717 A.2d 1015, 1017
(1998).
____________________________________________
1 Pennsylvania Rule of Appellate Procedure 313(b) provides that “[a] collateral order is an order separable 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. Pa.R.A.P. 313(b).
-3- J-A07043-18
In 2013, Pennsylvania Rule of Criminal Procedure 587 was amended to
include provisions governing pretrial double jeopardy motions. Rule 587(B)
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.
Pa.R.Crim.P. 587(B) (emphasis added).
This Court has previously interpreted a trial court’s responsibilities
pursuant to Pa.R.Crim.P. 587(B) as follows:
To establish whether a motion to dismiss on double jeopardy grounds qualifies as a collateral order, trial courts must now, inter alia, satisfy Rule 587(B)(3), (4), (5), and (6). Subsection (B)(3) requires the trial court, following a hearing, to enter on the record
-4- J-A07043-18
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.
Commonwealth v. Diggs, 172 A.3d 661, 664 (Pa.Super. 2017) (quoting
Taylor, 120 A.3d at 1022-23).
Our review of the transcript and the record reveals that the trial court
failed to comply with Rule 587(B). While the trial court discussed the relevant
facts and its legal conclusion in denying Appellant’s motion to dismiss, the trial
court failed to make a specific finding of whether the appeal was frivolous,
despite defense counsel’s request that it do so. While the trial court denied
Appellant’s motion, the comment section to Rule 587 makes clear that “[a]
mere adverse decision of the case does not mean the matter is frivolous.”
Pa.R.A.P. 587, comment. See Commonwealth v. Gains, 556 A.2d 870, 874
(Pa.Super. 1989) (“A frivolous claim is a claim clearly and palpably without
merit; it is a claim which presents no debatable question”).
Accordingly, this Court may not exercise jurisdiction in this case. In
light of the decisions in Diggs and Taylor, we are constrained to remand this
matter to the Court of Common Pleas for the trial court to make a specific
finding on frivolousness to comply with Rule 587(B).
Order vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 04/26/18
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