Com. v. Kolovich, R.
Com. v. Kolovich, R. No. 1273 MDA 2016
| Pa. Super. Ct. | May 11, 2017Background
- In April 2014 Kolovich was charged in Luzerne County with Theft by Deception (and initially also Deceptive Business Practices, the latter later quashed) for allegedly taking ~$3,984 to buy/install windows and failing to perform. Similar charges were filed in several other counties; some were dismissed or resulted in acquittal.
- Kolovich filed a pretrial motion (Aug 12, 2015) to bar prosecution on double jeopardy grounds and under 18 Pa.C.S. §§ 110, 111. The trial court denied the motion (order entered June 30, 2016).
- Kolovich appealed; the Superior Court considered whether it had appellate jurisdiction over the denial as a collateral order under Pa.R.A.P. 313 and the requirements of Pa.R.Crim.P. 587(B) for double jeopardy motions.
- The certified record contains an incomplete transcript of the September 2, 2015 hearing (several pages missing), and no clear on-the-record findings of fact, conclusions of law, or a specific frivolousness determination as required by Rule 587(B).
- Because the record is deficient, the Superior Court could not determine whether the denial was an immediately appealable collateral order. The Court remanded for compliance with Rule 587(B) or supplementation of the record and a Rule 1925(a) opinion within 60 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of Kolovich’s pretrial motion to bar prosecution on double jeopardy grounds is immediately appealable | Commonwealth implicitly argues the appeal does not qualify under Rule 311 and the record must show Rule 587(B) compliance | Kolovich contends the order is appealable as a collateral order and challenges prosecution under double jeopardy and §§110–111 | Court could not determine appealability due to incomplete record; remanded for Rule 587(B) compliance or a complete certified transcript |
| Whether trial court complied with Pa.R.Crim.P. 587(B) when denying the motion | Commonwealth: hearing and denial occurred (no contention in opinion that court complied on record) | Kolovich: needed on-record findings and frivolousness ruling to preserve right to collateral appeal | Court found the record lacks required on-the-record findings, frivolousness determination, and advisements; directed remedial proceedings or supplementation |
Key Cases Cited
- Commonwealth v. Taylor, 120 A.3d 1017 (Pa. Super. 2015) (interprets Rule 587(B) requirements; failure to make on-record findings and frivolousness determination requires remand)
- Commonwealth v. Brady, 508 A.2d 286 (Pa. 1986) (orders denying pretrial double jeopardy motions may be collateral orders)
- Commonwealth v. Kivlin, 406 A.2d 799 (Pa. Super. 1979) (recognizes immediate appealability of double jeopardy dismissal denials)