Commonwealth v. Johnson, D., Aplt. ( 2021 )

[J-112-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 23 EAP 2020
:
Appellee : Appeal from the Judgment of Superior
: Court entered on 10/16/19 at No. 1233
: EDA 2017 (reargument denied
v. : 12/26/19) affirming in part and reversing
: in part the order entered on 4/3/17 in
: the Court of Common Pleas,
: Philadelphia County, Criminal Division
DEWITT JOHNSON, : at No. CP-51-CR-0008678-2015
:
Appellant : ARGUED: December 2, 2020
OPINION
CHIEF JUSTICE SAYLOR DECIDED: March 25, 2021
This appeal concerns the application of the statutory compulsory joinder rules,
which generally require a prosecutor to pursue, in a single proceeding, all known
charges against a defendant arising from a single criminal episode occurring within the
same judicial district, subject to enumerated exceptions. The exception in issue
pertains when a court lacks jurisdiction over a defendant or the offense.
In June of 2015, as a result of a traffic stop, Appellant was arrested and charged
with driving with a suspended license, possession with intent to deliver heroin (“PWID”),
and knowing and intentional possession of heroin (“K&I”). Before the Traffic Division of
the Municipal Court of Philadelphia, he was found guilty, in absentia, of the summary
traffic offense. See 42 Pa.C.S. §1121(c)(3) (delineating the Traffic Division’s jurisdiction
for the relevant time period).
The Municipal Court’s jurisdiction is capped at criminal offenses punishable by
imprisonment for a term of not more than five years. See id. §1123(a)(2). Accordingly,
and since that court lacked jurisdiction over PWID, see 35 P.S. §780-113(f)(1)
(prescribing a maximum penalty of fifteen years’ imprisonment for this crime), the
Commonwealth pursued the drug offenses in the common pleas court, which, under the
Pennsylvania Constitution, has “unlimited original jurisdiction in all cases except as may
otherwise be provided by law.” PA. CONST., art. V, §5(b). Appellant filed a motion to
dismiss, contending that the prosecution was required to try all of the offenses
simultaneously, per the compulsory joinder requirements of Section 110 of the Crimes
Code, 18 Pa.C.S. §110. As noted, Section 110 generally requires the government to
bring all known charges against a defendant arising out of a single criminal episode
occurring within the same judicial district in a single proceeding. See id. §110(1). The
county court, however, denied the motion.
On interlocutory appeal, the Commonwealth acknowledged the recent decision in
Commonwealth v. Perfetto, 652 Pa. 101, 207 A.3d 812 (2019), holding that Section 110
generally prohibits the government from proceeding with a prosecution subject to the
jurisdiction of the Philadelphia Municipal Court, after a summary offense arising from the
same criminal episode had been adjudicated in the Traffic Division of that court. See id.at ___, 207 A.3d at 813. Based on Perfetto, the Commonwealth conceded that it was
foreclosed from pursuing the K&I charge, because that crime, like the traffic offense, fell
within the Municipal Court’s jurisdiction. Nevertheless, the Commonwealth argued that
PWID remained viable, since the Municipal Court had lacked jurisdiction over that
offense. In this regard, the Commonwealth invoked Section 112(1) of the Crimes Code,
which serves as an exception to Section 110’s general prohibition by providing, in
relevant part:
[J-112-2020] - 2
A prosecution is not a bar within the meaning of [inter alia,
Section 110] under any of the following circumstances:
(1) The former prosecution was before a court which lacked
jurisdiction over the defendant or the offense.
18 Pa.C.S. §112(1). It was the Commonwealth’s position that “the offense,” in Section
112(1), doesn’t mean the offense that was the subject of the prior prosecution, but
rather, concerns the crime or crimes for which the government is seeking subsequent
convictions.
The Superior Court credited this argument and affirmed with respect to PWID.
See Commonwealth v. Johnson, 221 A.3d 217, 220-21 (Pa. Super. 2019).
Appellant lodged an application for reargument, contending that “the offense,” in
Section 112(1), means the crime that was the subject of the previous prosecution.
Thus, according to Appellant, the exception applies only to situations where the prior
conviction or acquittal was rendered by a court without jurisdiction or authority to render
a judgment in the first instance. He stressed that this was not the circumstance in his
case, because the Traffic Division unquestionably had jurisdiction to convict him of the
summary traffic offense. The Superior Court denied Appellant’s application.
As concerns the serial prosecutions of single-criminal-episode summary offenses
(triable at the magisterial district court level) and greater crimes (over which magisterial
district courts lack jurisdiction), the history of Section 110 provides some illumination. In
1973, this Court mandated compulsory joinder under its supervisory powers. See
Commonwealth v. Campana, 455 Pa. 622, 626, 314 A.2d 854, 856 (1974) (per
curiam).1 By that time, the General Assembly had already enacted Section 110 of the
1 Previously, a plurality of Justices grounded the decision to judicially require
compulsory joinder upon federal constitutional law under the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution, made applicable to the states
via the Fourteenth Amendment. See Commonwealth v. Campana, 452 Pa. 233, 304
(continued…)
[J-112-2020] - 3
Crimes Code, legislation which the Court deemed to be “entirely in harmony” with its
supervisory mandate. Id. at 626, 314 A.2d at 856.2 Significantly, as well, both this
Court in Campana, and the General Assembly, in its statutory scheme of compulsory
joinder, derived governing principles from the Model Penal Code. See 42 Pa.C.S. §110,
Editor’s Notes (citing the 1967 Joint State Government Commission Comment to the
effect that, “[t]his section is derived from Section 1.09 of the Model Penal Code”);
Campana, 452 Pa. at 248-250 & nn.31, 32 & 37, 304 A.2d at 438-40 & nn.31, 32 & 37.3
(…continued)
A.2d 432, vacated and remanded, Pa. v. Campana, 414 U.S. 808, 94 S. Ct. 73 (1973).
However, upon certiorari sought and granted, that opinion was vacated by the Supreme
Court of the United States, which remanded for clarification. See Campana, 414 U.S.
808, 94 S. Ct. 73. Upon remand, this Court recharacterized its previous, divided
decision as having been predicated on an exercise of its supervisory powers under
Article V, Section 10(c) of the Pennsylvania Constitution. See Campana, 455 Pa. at
627, 314 A.2d at 56.
2 Parenthetically, in Campana, the Court didn’t discuss the apparent tension amongst its
exercise of supervisory powers, the Legislature’s enactment of a parallel statute, and
the notion, maintained by a majority of this Court, that the Court’s supervisory powers
under Article V, Section 10(c) are exclusive. See, e.g., Renner v. Court of Common
Pleas of Lehigh County, ___ Pa. ___, ___, 234 A.3d 411, 425 (2020) (“[T]he
Constitution grants exclusive policy and rule-making power to the judiciary regarding the
courts.”). But see id. at ___, 234 A.3d at 426-47 (Saylor, C.J., concurring) (criticizing
the exclusivity notion as unsustainable, in light of the many instances in which the Court
has accepted legislative actions overlapping with matters over which the Court
exercises supervisory powers). It is beyond the scope of this opinion to further address
this exclusivity jurisprudence.
3 Although Section 110 was patterned after Section 1.09 of the Model Penal Code, a
material limitation -- i.e., that the offenses in issue must be “within the jurisdiction of a
single court,” derives from Section 1.07 of the Model Penal Code, which, in relevant
part, is incorporated by reference into Section 1.09. See Model Penal
Code & Commentaries, art. I, §1.09(1)(b), at 155 (Am. Law Inst. 1985) [hereinafter,
“MPC & Commentaries”].
[J-112-2020] - 4
In the Campana line of decisions, a plurality of Justices made it clear that their
intent was generally to require summary and greater offenses arising out of single
criminal episodes to be consolidated in the common pleas courts. See Campana, 452
Pa. at 253-54, 304 A.2d at 441-42.4 This approach would seem to be consonant with
the plain language of the Model Penal Code and Section 110, which barred subsequent
prosecutions that were “within the jurisdiction of a single court” -- facially signifying any
single court where jurisdiction might lie, including the courts of common pleas -- and not
only the particular court in which an initial prosecution may have been conducted.
Nevertheless, in a series of subsequent decisions, and in a departure from the
policy judgment of the Campana plurality, this Court construed the “within the
jurisdiction of a single court” proviso to permit serial prosecutions for summary and
greater offenses, respectively, at the magisterial district and common pleas tiers. See
Commonwealth v. Taylor, 513 Pa. 547, 552-53, 522 A.2d 37, 39-40 (1987);
Commonwealth v. Breitegan, 500 Pa. 384, 385-86, 456 A.2d 1340, 1341 (1983);
Commonwealth v. Beatty, 500 Pa. 284, 290-91, 455 A.2d 1194, 1198 (1983). In
explaining this decision, the Court did not focus on substance of the “within the
jurisdiction of a single court” language or its history or derivation, but rather, relied on
the following policy pronouncement:
We are aware that 42 Pa.C.S.A. §931(b) appears to
recognize concurrent jurisdiction in such cases of the Court
of Common Pleas. Nevertheless, we will not construe the
phrase “and was within the jurisdiction of a single court” in
such a manner as to ignore the traditional division of labor in
4 This policy was arguably adopted by a majority of Justices when the Court
recharacterized the prior decision as embodying an exercise of the Court’s supervisory
powers. See Campana, 455 Pa. at 626, 314 A.2d at 856 (“This Court views our May 4,
1973 judgments in Campana as state law determinations pursuant to our supervisory
powers.”).
[J-112-2020] - 5
our court system. The traditional role of the Court of
Common Pleas in the disposition of summary motor vehicle
offenses is the role of the reviewing tribunal as opposed to
the court of original jurisdiction. 42 Pa.C.S.A. §932.
* * *
Our interpretation of Section 110(1)(ii) as excluding traffic
violations under the Motor Vehicle Code is further bolstered
by a consideration of the purposes sought to be achieved by
the legislative enactment as well as our promulgation of the
compulsory joinder rule. The disposition of a summary
offense in a traffic matter prior to the trial of a misdemeanor
or felony does not present the type of governmental
harassment of a defendant that would offend double
jeopardy concerns. Additionally, judicial economy is not
served by requiring our Courts of Common Pleas to dispose
of these matters which are regularly entrusted to the district
justices for disposition.
Id. at 290-91 & n.3, 455 A.2d at 1198 & n.3.5
Under this line of authority, the present prosecution for PWID would be
permissible. However, in 2002, the Legislature modified Section 110(1)(ii) to remove
the “within the jurisdiction of a single court” proviso upon which these decisions were
premised. See Act of June 28, 2002, P.L. 481, No. 81, §1. It seems that the
displacement of the Beatty line of decisions may have been an unintended
consequence, since the General Assembly’s clear intention was to override the effect of
Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997) (plurality), which had led
to the “within the jurisdiction of a single court” proviso of Section 110(1)(ii) being met
even where multi-jurisdictional criminal episodes were involved. See id. at 530, 692
A.2d at 144-45. Disapproving this state of affairs, the General Assembly amended
5 As reflected above, in Beatty, the Court had initially confined its reasoning to scenarios
involving summary offenses arising under the Motor Vehicle Code. In Taylor, however,
the Court extended the holding to summary offenses in general, see Taylor, 513 Pa. at
553, 522 A.2d at 40, so long as the scenario doesn’t involve multiple summary offenses.
See Commonwealth v. Geyer, 546 Pa. 586, 592, 687 A.2d 815, 817-18 (1996).
[J-112-2020] - 6
Section 110(1)(ii) to reflect its current language by replacing the phrase “was within the
jurisdiction of a single court” with “occurred within the same judicial district as the former
prosecution.” See Act of June 28, 2002, P.L. 481, No. 81, §1.
Again, the intended effect of the 2002 amendment was to limit mandatory joinder
only to those offenses occurring in a single judicial district. See Commonwealth v.
Fithian, 599 Pa. 180, 199, 961 A.2d 66, 77 (2008). But another impact -- which may not
have been intended -- was to displace the Beatty line of decisions, which had approved
of the serial litigation of summary offenses at the magisterial district court level and
greater offenses in the county courts. See Perfetto, 652 Pa. at ___, 207 A.3d at 824.
So far, our discussion has centered on Section 110; whereas, the present case
concerns the exception set forth in Section 112 of the Crimes Code, pertaining to
instances in which, “[t]he former prosecution was before a court which lacked
jurisdiction over the defendant or the offense.” 18 Pa.C.S. §112(1). Both parties agree
that the term “the offense,” as employed in Section 112(1), is ambiguous. Accordingly,
they maintain their competing positions regarding whether “the offense” relates to the
crime that was the subject of the previous prosecution or the ones that are the subject
of subsequent prosecution.
Significantly, the Commonwealth invites us to return to the roots of compulsory
joinder policy by revisiting the Model Penal Code. In this regard, the Commonwealth
explains that Section 112 is derived from Section 1.11 of the Model Penal Code. See
Brief for Appellee at 18 (citing 18 Pa.C.S. §112, Comment). Further, it highlights that
the commentaries associated with the Model Penal Code recognize that, “‘[a] number of
jurisdictions have held’ that ‘a conviction for a lesser included offense in a court that
lacked jurisdiction over the greater offense is not a bar to successive prosecutions.’” Id.
at 18 (quoting MPC & Commentaries, art. I, §1.11, cmt. 2 n.6, at 179-180).
[J-112-2020] - 7
The relevant passage, however, proceeds to explain that, “[l]ower courts have
held in several recent decisions that consecutive prosecutions of greater and lesser
included offenses would violate double jeopardy, even where the first court lacked
jurisdiction over the greater offense.” MPC & Commentaries, art. I, §1.11, cmt. 2, at
179-181 (citations omitted). Notably, the latter commentary is more in keeping with
textual discussion at large.
And more importantly, Section 1.11(1) of the Model Penal Code is explicitly
premised on the concept of a “jurisdictional error,” which occurs “when a court, although
it assumes power to dispose of a case, has no power to do so.” Id. at 181. According
to the commentaries, a judgment by a court committing such an error will not bar a
subsequent prosecution, since “[a]ll courts agree that a former trial is not a bar unless
the court had jurisdiction, the rationale being that since the judgment of or any action
taken by a court without jurisdiction is a nullity, the defendant has not been placed in
jeopardy if the court did not have jurisdiction.” Id. at 179-180 (footnotes omitted)); see
also id. at n.6 (citing Grafton v. United States, 206 U.S. 333, 345, 27 S. Ct. 749, 751
(1907) (“We assume as indisputable, on principle and authority, that before a person
can be said to have been put in jeopardy of life or limb the court in which he was
acquitted or convicted must have had jurisdiction to try him for the offense charged.”
(emphasis added))). In this fashion, the commentaries decisively undercut the
Commonwealth’s position.6
6 Although the commentaries referenced above were published in 1985, thirteen years
after Section 110’s enactment, the grounding of Section 1.11(1) of the Model Penal
Code on the concept of jurisdictional error in an initial prosecution was evident in
integrated commentary since the early drafting. See, e.g., Model Penal Code Tentative
Draft No. 5, art. I, §1.12, cmt. 1, at 64 (Am. Law Inst. 1956).
[J-112-2020] - 8
There is another difficulty with the Commonwealth’s arguments, which is
reflected in the historical development of compulsory joinder, as discussed above. The
way in which this Court’s decisions had evolved -- rightly or wrongly as relating to the
original intentions of the Model Penal Code drafters -- the Beatty line of cases had
construed Section 110 as inapplicable to the scenario in which the court presiding over
the initial prosecution lacked jurisdiction over other offenses. See Beatty, 500 Pa. at290-91 & n.3, 455 A.2d at 1198 & n.3. Thus, if the Commonwealth’s construction of
Section 112(1) were to be adopted, the statutory provision would have been superfluous
at the time it was enacted (notwithstanding that the Commonwealth’s construction
would have garnered import after the Legislature amended Section 110(1)(ii) in 2002 to
remove the “within the jurisdiction of a single court” proviso). This understanding also
militates weightily against the Commonwealth’s position. See 1 Pa.C.S. §1922(2)
(prescribing for the presumption that the Legislature intends for the entirety of statutes
to be effective and certain).
We recognize that several Justices, including this author, have previously
favored a construction of Section 112(1) grounded on the Beatty Court’s policy
assessment that the Legislature would have apprehended and supported the traditional
division of labor in the judicial system. See Perfetto, 652 Pa. at ___, 207 A.3d at 825-26
(Saylor, C.J., dissenting). On reflection, however, and upon review of the Model Penal
Code provision and associated commentaries underlying Section 112(1), we decline to
impose a policy-based construction upon the statute that disregards the explanation of
its meaning, taken from the source from which it was derived, that was available to the
Legislature at the time of the statute’s enactment. See supra note 6.7 While this
7 As Appellant highlights, moreover, this Court has previously applied an analysis of
Section 112(1) centered on the jurisdiction of the court presiding over the initial
prosecution (or, there, a juvenile adjudication), in Commonwealth v. Johnson, 542 Pa.
(continued…)
[J-112-2020] - 9
approach would seem to be the opposite of that which was applied in the Beatty line of
decisions, in our considered judgment, some of the complexity and disharmony that has
arisen in the compulsory joinder arena stems from the elevation of policy judgments
over clearer indications of legislative design and intention. Of course, the General
Assembly remains free to amend the joinder requirements to align with its current
intentions, subject to constitutional limitations.8
(…continued)
568, 574, 669 A.2d 315, 318 (1995). Accord Commonwealth v. Schmotzer, 831 A.2d
689, 696 (Pa. Super. 2003).
8Certainly, as here, themes from the Model Penal Code retain their vitality in the Crimes
Code. But, as in other states, legislative adjustments and common law accretions have
substantially altered the implementation, in Pennsylvania, of some of the Code’s original
philosophies. See generally Anders Walker, The New Common Law: Courts, Culture,
and the Localization of the Model Penal Code, 62 HASTINGS L.J. 1633, 1634 (2011).
Notably, in the compulsory joinder arena, one emerging theme, advocated by the
American Bar Association, has favored shifting the onus from the government to the
defendant to advance joinder. See AM. BAR ASS’N, CRIMINAL JUSTICE SECTION
STANDARDS, JOINDER AND SEVERANCE, pt. I, Standard 13-2.3(d),
https://www.americanbar.org/groups/criminal_justice/publications/
criminal_justice_section_archive/crimjust_standards_joinsev_blk/ (last visited Dec. 23,
2020) (“Entry of a plea of guilty or nolo contender to one offense does not bar the
subsequent prosecution of any additional offense based on the same conduct or the
same criminal episode.”); see also id., Standard 13-2.3(b) (“A defendant’s failure to
move for joinder constitutes a waiver of any right of joinder as to ‘same conduct’ or
‘single criminal episode’ offenses which the defendant knew had been charged.”).
Absent adjustment by the General Assembly, however, consistent with the original
Model Penal Code treatment embedded into the compulsory joinder provisions of the
Crimes Code, this burden presently remains on the Commonwealth. See, e.g.,
Commonwealth v. Failor, 564 Pa. 642, 649, 770 A.2d 310, 314 (2001) (“[T]he burden to
protect a defendant from vexatious litigation and to conserve judicial resources rests
squarely on the shoulders of the Commonwealth[.]”). In this vein, although an exception
to compulsory joinder applies when the defendant takes affirmative action to separate
the prosecutions pending against him, resulting in a waiver, such action must rise above
(continued…)
[J-112-2020] - 10
We hold that “the offense,” in Section 112(1), means the offense that was the
subject of an initial prosecution resulting in a conviction or acquittal. The ultimate
purport, with respect to the summary-and-greater-offenses paradigm, is that the
Commonwealth must generally assure that known offenses are consolidated at the
common pleas level, when they arise out of a single criminal episode and occur in the
same judicial district. See Failor, 564 Pa. at 649, 770 A.2d at 314.9 Perhaps ironically,
this is consistent with the Campana plurality’s policy perspective, also derived from the
Model Penal Code, where this all began. See Campana, 452 Pa. at 253-54, 304 A.2d
441-42.
The order of the Superior Court is reversed, and the matter is remanded for
dismissal of the PWID charge.
Justices Todd, Donohue and Wecht join the opinion.
Justice Baer files a dissenting opinion in which Justices Dougherty and Mundy
join.
(…continued)
and beyond the mere act of pleading guilty to summary offenses. See id. at 648-51,
770 A.2d at 314-15.
9 The same rationale applies to the Philadelphia Municipal Court as pertains in the
magisterial district courts at large, albeit that, with respect to the former, the Perfetto
scenario also must be considered. This suggests consolidation, in the General Division
of the Municipal Court, of summary traffic offenses with other crimes over which the
Municipal Court has jurisdiction. See Perfetto, 652 Pa. at ___, 207 A.3d at 823.
[J-112-2020] - 11