Com. v. Forman, K. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KEVIN FORMAN, : No. 214 EDA 2018
:
Appellant :
Appeal from the Order Entered November 20, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003805-2014
BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 26, 2019
Kevin Forman filed this interlocutory appeal challenging the
November 20, 2017 order entered in the Court of Common Pleas of
Philadelphia County that denied his motion to dismiss pursuant to the
compulsory joinder rule found at 18 Pa.C.S.A. § 110(1)(ii).1 In light of this
1 With respect to our jurisdiction over this appeal,
[i]t is well settled in Pennsylvania that a defendant is
entitled to an immediate interlocutory appeal as of right
from an order denying a non-frivolous motion to dismiss
on state or federal double jeopardy grounds. Because
the protection of the compulsory joinder of charges
statute is in the nature of protection against double
jeopardy, an order denying a motion to invoke that
statute’s protection is similarly subject to immediate
appeal.
Commonwealth v. Barber, 940 A.2d 369, 376 (Pa.Super. 2007), appeal
denied, 960 A.2d 835 (Pa. 2008) (internal citations and quotation marks
omitted).
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court’s en banc decision in Commonwealth v. Perfetto, 169 A.3d 1114(Pa.Super. 2017) (en banc), appeal granted, 182 A.3d 435 (Pa. 2018), we
affirm and remand.
The trial court set forth the following procedural history:
Appellant was charged with Possession of a Firearm
Prohibited, 18 Pa.C.S.[A.] § 6105 [(graded as a
second-degree felony)], Carrying a Firearm Without a
License, 18 Pa.C.S.[A.] § 6106 [(graded as a
third-degree felony)], Carrying a Firearm on a Public
Street, 18 Pa.C.S.[A.] § 6108 [(graded as a
first-degree misdemeanor)], Knowing and Intentional
Possession of a Controlled Substance, 35 P.S.
§ 780-113(A)(16[) (graded as a first-degree
misdemeanor)], and possession of an instrument of
crime, generally, 18 Pa.C.S.[A.] § 907 [(graded as a
first-degree misdemeanor)]. Following [a]ppellant’s
apprehension, in addition to the above charges,
authorities issued summary traffic tickets[2] to
[a]ppellant arising out of the same incident underlying
the above criminal charges. Those tickets were
disposed of by [a]ppellant when he appeared before
this Court.
Based on the disposition of the summary traffic
tickets, [a]ppellant filed a Motion to Dismiss the
criminal charges. He asserted that pursuant to
18 Pa.C.S.[A.] § 110, he is entitled to a discharge of
the criminal matters because of the disposition of the
tickets. He claims that he is entitled to such relief
because Section 110 requires that every charge
arising out of the same criminal matter be tried
together and therefore, because the summary traffic
tickets have already been disposed of, Section 110
prohibits the Commonwealth from trying him on the
above-listed criminal matters.
2 The record reflects that appellant was issued one citation for careless driving
in violation of 75 Pa.C.S.A. § 3714, to which he later pled guilty and received
a $155 fine. (See appellant’s “memorandum of law in support of motion to
dismiss prosecution pursuant to 18 P.S. section 110,” at 5 and Exhibit A.)
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On November 20, 2017, this Court denied
[a]ppellant’s motion after which [a]ppellant filed an
interlocutory appeal. He thereafter filed a requested
Pa.R.A.P. 1925(b) [s]tatement of [errors complained
of on appeal].
Trial court opinion, 6/11/18 at 1-2. Subsequently, the trial court filed its
Rule 1925(a) opinion.
Appellant raises the following issue for our review.
DID THE TRIAL COURT ERR IN DENYING APPELLANT’S
MOTION TO DISMISS THIS PROSECUTION PURSUANT
TO 18 P.S. §110 WHERE THE COMMONWEALTH
FAILED TO JOIN IN ONE PROSECUTION ALL
OFFENSES ARISING FROM THE SAME CRIMINAL
EPISODE AND OCCURRING WITHIN THE SAME
JUDICIAL DISTRICT, AND WHERE THE APPELLANT
WAS CHARGED AND FOUND GUILTY OF A SUMMARY
TRAFFIC OFFENSE PRIOR TO THE COMMENCEMENT
OF TRIAL ON THE RELATED MISDEMEANOR AND
FELONY CHARGES FORMING THE BASIS FOR THE
INSTANT PROSECUTION[?]
Appellant’s brief at 4.
Our standard of review of issues concerning the compulsory joinder rule,
18 Pa.C.S.A. § 110, is plenary. Commonwealth v. Reid, 35 A.3d 773, 776
(Pa.Super. 2012). The compulsory joinder rule bars a subsequent prosecution
if each of the following is met:
(1) the former prosecution resulted in an acquittal or
conviction; (2) the current prosecution was based on
the same criminal conduct or arose from the same
criminal episode; (3) the prosecutor in the subsequent
trial was aware of the charges before the first trial;
and (4) all charges [are] within the same judicial
district as the former prosecution.
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Reid, 77 A.3d at 582 (citation omitted; brackets in original).
Here, no dispute exists that appellant’s prosecution on the summary
traffic offense resulted in a conviction, that the prosecution on the
misdemeanors and felonies would be based on the same criminal conduct or
arose from the same criminal episode, and that the Commonwealth knew of
the misdemeanor and felony charges before the summary trial. In light of this
court’s decision in Perfetto, however, appellant fails to satisfy the fourth Reid
test prong.
In Perfetto, this court held that where a defendant’s summary traffic
offense was to be heard solely in the Philadelphia Municipal Court Traffic
Division pursuant to its jurisdiction in accordance with 42 Pa.C.S.A.
§ 1302(a.1)(1)(i), a prior disposition of that summary traffic offense in traffic
court does not bar a later prosecution of other criminal charges that arose in
the same judicial district and at the same time as the summary traffic offense
because Section 1302 carves out an exception to compulsory joinder and
directs that the summary traffic offense is within the exclusive jurisdiction of
the traffic court. Consequently, appellant’s subsequent prosecution on the
misdemeanor and felony charges is not barred by compulsory joinder.
In his brief, appellant contends that this court “wrongly decided”
Perfetto. (Appellant’s brief at 6, 14.) Until our supreme court overrules our
decision in Perfetto, however, it is the law of this Commonwealth. See
Commonwealth v. Forbes, 867 A.2d 1268, 1279 (Pa.Super. 2005)
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(reiterating that “[i]t is well settled . . . that until the Supreme Court overrules
a decision of this Court, our decision is the law of the Commonwealth.”
(citations omitted)).
Order affirmed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/19
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