Com. v. McCrae, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
ROBERT MCCRAE, :
:
Appellant : No. 1373 EDA 2015
Appeal from the Order Entered April 20, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009702-2014
and CP-51-CR-0009703-2014
BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE,
DUBOW, MOULTON, and RANSOM, JJ.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 27, 2017
Appellant, Robert McCrae, appeals by right from the interlocutory order
entered on April 20, 2015, denying his Motion to Dismiss pursuant to 18
Pa.C.S. § 110. Upon careful review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. On July 30, 2014, at 900 South 59th Street in Philadelphia,
Pennsylvania, police conducted a traffic stop of a vehicle driven by Appellant,
in order to investigate heavily tinted windows. Police allege that Appellant
displayed signs of intoxication and admitted he smoked marijuana before
driving. Upon a search incident to Appellant’s arrest, police recovered a
loaded semi-automatic firearm from the vehicle and found narcotics on
Appellant’s person. Police issued Appellant a traffic citation for improper
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sunscreen.1 Thereafter, the Commonwealth charged Appellant with two
violations of the Uniform Firearms Act (a felony and a misdemeanor), Driving
Under the Influence of a Controlled Substance (“DUI”) (a misdemeanor), and
Possession of a Controlled Substance (a misdemeanor).2
On October 1, 2014, the Commonwealth proceeded on the summary
offense of Improper Sunscreen before the traffic division of the Philadelphia
Municipal Court (“traffic court”), which found Appellant guilty in absentia.
After a preliminary hearing in the Court of Common Pleas (“trial court”) on the
felony and misdemeanor charges, the court held the remaining charges over
for trial.
On April 20, 2014, before his scheduled trial, Appellant filed a Motion to
Dismiss his firearms, DUI, and drug possession charges with the trial court
pursuant to 18 Pa.C.S. § 110. Appellant argued that the Commonwealth was
barred from prosecuting him on the misdemeanor and felony charges because
the traffic division of Municipal Court had previously convicted him for
Improper Sunscreen, a summary traffic offense. Appellant averred that
Section 110 required the Commonwealth to consolidate for trial all known
criminal charges based upon the same conduct or arising from the same
1 75 Pa.C.S. § 4524(e).
218 Pa.C.S. § 6106 (Firearms Not to be Carried Without a License, a felony);
18 Pa.C.S. § 6108 (Carrying a Firearm in Public in Philadelphia, a
misdemeanor); 75 Pa.C.S. § 3802(d) (a misdemeanor); and 35 P.S. § 780-
113(16) (a misdemeanor), respectively.
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criminal episode in the same judicial district unless the trial court specifically
ordered separate trials.3 Following a hearing on Appellant’s Motion to Dismiss,
the trial court denied relief. N.T. Hearing, 4/20/15, at 8. Appellant requested
an interlocutory appeal,4 which the trial court granted. Id. at 8-9.
Appellant filed a timely Notice of Appeal on May 13, 2015. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On August 30, 2016, this Court certified this case for en banc review, as
well as four other cases raising similar issues pursuant to 18 Pa.C.S. § 110.
The parties have filed supplemental briefs addressing this issue. On appeal,
Appellant presents the following issue for our review:
Did not the lower court err in denying [A]ppellant’s [M]otion
to [D]ismiss pursuant to 18 [Pa.C.S.] § 110 where
[A]ppellant had previously been convicted of an offense
3 In this case, the trial court did not enter an Order for separate trials.
4 In Pennsylvania, “a defendant is entitled to an immediate interlocutory
appeal as of right from an order denying a non-frivolous [M]otion to [D]ismiss
on state or federal double jeopardy grounds.” Commonwealth v. DeLong,
879 A.2d 234, 237 n.1 (Pa. Super. 2005) (citation omitted). “[T]he
interlocutory appealability of double jeopardy claims has been applied to
claims based on Section 110.” Commonwealth v. M.D.P., 831 A.2d 714,
717 n.1 (Pa. Super. 2003) (citation omitted). Appellant’s Motion to Dismiss
pursuant to Section 110 was subject to the requirements of Pa.R.Crim.P.
587(B). Our review of the proceedings indicates that the trial court satisfied
the requirements of Rule 587(B). See N.T. Hearing, 4/20/15, at 8-9 (making
findings of fact and conclusions of law demonstrating court’s conclusion that
the motion was not frivolous). See also Trial Court Opinion, 7/1/15, at 1-7
(addressing the merits). Accordingly, this Court has jurisdiction to consider
this appeal.
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which arose from the same criminal episode as the offense in
the instant case?
Appellant’s Brief at 3.
Appellant contends that 18 Pa.C.S. § 110(1)(ii) compelled the
Commonwealth to join all of the charges arising from his traffic stop into a
single trial because all of Appellant’s conduct arose from the same criminal
episode in the same judicial district. Id. at 8-9. Appellant maintains that the
plain language of Section 110 requires consolidation because the trial court
and traffic court are within the same judicial district (i.e., the First Judicial
District, which covers Philadelphia County). Id. at 10-11. Hence, Appellant
argues that because the Commonwealth already tried and convicted him in
absentia in the traffic division of Municipal Court on the underlying summary
traffic offense, the Commonwealth was aware of both cases and was required
to bring all of the charges in a single prosecution. Id. at 10.
This Court addressed the compulsory joinder rule in our recent decision,
Commonwealth v. Perfetto, ___ A.3d ___, 2017 Pa. Super. 281 (Pa. Super.
filed Aug. 30, 2017) (en banc).5 The Perfetto Court held that jurisdiction is
no longer an express element of the four-prong compulsory joinder test;
5 A claim regarding compulsory joinder pursuant to 18 Pa.C.S. § 110 raises a
question of law reviewed under a de novo standard of review and a plenary
scope of review. See Commonwealth v. Fithian, 961 A.2d 66, 71 n.4 (Pa.
2008).
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rather, a court must consider whether all charges occurred within the same
judicial district. Perfetto, supra at *9.
Nevertheless, the Perfetto Court recognized that jurisdiction is implicit
in any compulsory joinder analysis. In judicial districts with an open traffic
court, this recognition formed the basis of an exception to the test, as traffic
courts have jurisdiction exclusive of the Courts of Common Pleas to hear
summary traffic offenses. 42 Pa.C.S. § 1302(b). Accordingly, summary traffic
offenses may be disposed of in a single proceeding in the traffic court
separately from other criminal charges without violating the compulsory
joinder rule. Perfetto at *8-9. Further, the Court observed that in the unique
context of Philadelphia, the Supreme Court of Pennsylvania has allocated
disposition of summary traffic offenses solely to the Philadelphia Municipal
Court Traffic Division. Id. at *8. As such, the Court concluded that Title 75
summary offenses must be disposed of in a proceeding in the Philadelphia
Municipal Court Traffic Division and that a separate proceeding must be held
for the remaining, higher offenses. Id. at *8.
Applying the Perfetto holding to this case, Appellant’s subsequent
prosecution is not subject to dismissal under compulsory joinder, as the
Municipal Court Traffic Division adjudicated Appellant’s prior summary traffic
offenses. Because Philadelphia has a separate traffic court, the
Commonwealth could dispose of Appellant’s summary traffic offense without
violating the compulsory joinder rules.
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As clarified by Perfetto, we need not apply the four-prong compulsory
joinder test “because of the unique jurisdictional organization of the
Philadelphia Courts[.]” Id. at *9. The fact that the Commonwealth charged
Appellant with both misdemeanor and felony offenses, in addition to the
summary traffic offense, does not alter our analysis. Accordingly, we affirm
the trial court’s denial of Appellant’s Motion to Dismiss pursuant to 18 Pa.C.S.
§ 110.6
Order affirmed.
President Judge Emeritus Bender, Judge Bowes, Judge Panella, Judge
Ott, Judge Stabile, Judge Moulton, and Judge Ransom join the memorandum.
Judge Larazus concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2017
6 “To the extent our legal reasoning differs from the trial court’s, we note that
as an appellate court, we may affirm on any legal basis supported by the
certified record.” Commonwealth v. Williams, 125 A.3d 425, 433 n.8 (Pa.
Super. 2015).
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