Com. v. Martisofski, D. ( 2016 )

J. A25003/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVIS JOHN MARTISOFSKI, : No. 521 MDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, March 23, 2016,
in the Court of Common Pleas of Lebanon County
Criminal Division at No. CP-38-CR-0000527-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 17, 2016
David John Martisofski appeals from the March 23, 2016 judgment of
sentence entered in the Court of Common Pleas of Lebanon County following
his conviction in a waiver trial of two counts of driving under the influence 1
(“DUI”) and one summary count of maximum speed limits.2 The trial court
sentenced appellant to a period of incarceration of 90 days to two years less
one day. We affirm.
The trial court provided the following, gleaned from appellant’s
pre-trial hearing:
* Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. § 3802(d)(1)(iii) and (d)(2).
2
75 Pa.C.S.A. § 3362(a)(3).
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. . . On December 31, 2014, Trooper [John]
Huffstutler conducted a traffic stop of [appellant’s]
vehicle. On that night, Trooper Huffstutler testified
that he “completed a citation” for exceeding
maximum speed limits, but he never actually gave a
paper citation to [appellant] (Citation number
T-2545157). Trooper Huffstutler subsequently
withdrew the citation.
Exhibit No. 1 is the citation withdrawal letter
that he submitted in person to the MDJ. Trooper
Huffstutler testified that the citation was not filed.
The computer system they use is TraCS, and there is
an option to either issue or file a citation. He
selected the issue option and printed out the citation.
Trooper Huffstutler had a printed paper citation in his
hand and was planning to give it to [appellant];
however, he was unable to because as he was
explaining it to him, he detected DUI indicators that
led to the criminal complaint. Trooper Huffstutler
never sent anything to MDJ Wolfe’s office except for
the withdrawal letter. The computer system notifies
the magistrate’s office of violations. When
questioned more about the computer system,
Trooper Huffstutler testified as follows:
The way it works with TraCS compared
to a paper citation, if I write a paper
citation, I would have all the documents
with me. If I went up to the car and saw
what I saw, I would just take it back and
I would write, withdraw, and it would
never get sent in. But in the car, once
you pull a citation number onto the
citation–we have a thumb drive I can
show you. We carry them on us. We
have a thumb drive that holds all our
citations [sic] numbers, they’re not listed
automatically on top. So as soon as you
click, get number on TraCS, it assigns it
to that electronic document.
And the only way to get rid of it after
that is to withdraw the citation. So
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there’s [sic] been instances in the past
where a computer error where I would
have to do this same thing where a
defendant would have never got [sic]
their citation, but I would have to still
withdraw an issued citation because I
wouldn’t want the prosecution to go
through for those reasons.
Although Trooper Huffstutler kept saying that he
“issued” a citation, he later acknowledged that he
created it on an electronic screen on the TraCS
system. Trooper Huffstutler and the MDJ have
access to this screen. Trooper Huffstutler never
wrote anything on a paper citation. Trooper
Huffstutler would have destroyed the printed paper
in the shred bin.
Ms. Mercedes Marrero (hereinafter
“Ms. Marrero”), who is the office manager at MDJ
Wolfe’s office, testified. She corroborated that
Trooper Huffstutler asked to withdraw a citation filed
against [appellant]. Ms. Marrero ultimately withdrew
it. When she went to withdraw the citation,
[appellant] had an online payment pending on the
citation. She ultimately accepted the payment
because she has to accept it in order to refund it.
She cannot block the payment from being accepted.
Accepting the payment was for the limited purpose
of refunding it. The citation was withdrawn on
January 16, 2015, and payment was
th
accepted/satisfied on January 20 . The citation was
withdrawn before the money was accepted.
[Appellant] testified. Appellant received in the
mail a DL-38 form that is dated January 13, 2015.
The form advised [appellant] that unless he
responded to the citation and paid the fine, his name
would be referred to the Department of
Transportation, which will suspend his driving
privilege until he responds to the citation and pay
[sic] all fines, costs, and penalties. This form was
mailed to him, but [appellant] does not remember
the date he actually received it. Receiving the form
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concerned him so he paid the fine sometime online
before January 16, 2015. The refund check is dated
February 19, 2015, and the criminal complaint was
filed on February 17, 2015.
At the conclusion of the pretrial hearing, the
Court took the matter under advisement and allowed
the parties to submit post-hearing briefs in support
of their positions. Both parties filed their briefs on
August 12, 2015.
Trial court opinion, 8/17/15 at 1-4 (citations to notes of testimony and
exhibit numbers omitted).
The record reflects that the trial court denied appellant’s pre-trial
motion. Following a waiver trial, the trial court convicted appellant of
two counts of DUI and one summary count of maximum speed limits. The
day after the trial court imposed judgment of sentence, appellant filed his
notice of appeal to this court, together with a statement of errors
complained of on appeal. The trial court never directed appellant to file a
Pa.R.A.P. 1925(b) statement, and the trial court never filed a Rule 1925(a)
opinion. The trial court, however, had previously filed an opinion on
August 17, 2015, when it denied appellant’s pre-trial motion and found that
18 Pa.C.S.A. § 110 (compulsory joinder statute) did not bar appellant’s DUI
prosecution.
Appellant now raises the following issue for our review:
Did the trial court err in refusing to dismiss the
charges of Counts 2 and 3 [DUI], as prosecution of
those charges was barred by 18 Pa.[C.S.A.
§] 110(1)(i) and/or 110(1)(ii)?
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Appellant’s brief at 2.
When reviewing issues concerning the compulsory joinder statute, this
court’s standard of review is plenary. Commonwealth v. George, 38 A.3d
893, 896 (Pa.Super. 2012). The compulsory joinder statute is a legislative
mandate that provides that a subsequent prosecution for a violation of a
statutory provision that differs from a former prosecution or is based upon
independent facts will be barred in certain circumstances. Commonwealth
v. Fithian, 961 A.2d 66, 71 (Pa. 2008). Our supreme court has developed a
four-pronged test which must be satisfied when determining whether the
compulsory joinder statute bars a subsequent prosecution as follows:
(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.
Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013) (citation omitted).
Here, with respect to the first prong, appellant complains that because
he responded to a notice he received concerning suspension of his driver’s
license for failure to respond to a summary offense citation by making an
on-line payment that was eventually returned to him, the compulsory
joinder statute barred his DUI prosecution because that on-line payment
constituted his entry of a guilty plea in a former prosecution. We disagree.
The Crimes Code defines a “conviction” as follows:
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There is a conviction if the prosecution resulted in a
judgment of conviction which has not been reversed
or vacated, a verdict of guilty which has not been set
aside and which is capable of supporting a judgment,
or a plea of guilty accepted by the court. In the
latter two cases failure to enter judgment must be
for a reason other than a motion of the defendant.
18 Pa.C.S.A. § 109(3); see also Commonwealth v. Schmotzer, 831 A.2d
689, 694 (Pa.Super. 2003). Moreover, this court has held that Section 109
applies “only to former prosecutions which resulted in a plea of guilty which
continues to stand accepted by the court.” Schmotzer, 831 A.2d at 695(citation omitted).
Here, nothing in the record demonstrates that appellant pled guilty to
maximum speed limits or that a court accepted a guilty plea from appellant
that continues to stand. Accordingly, there was no conviction as defined by
Section 109(3). Therefore, because appellant cannot satisfy the first prong
required for application of the compulsory joinder statute, the statute did not
bar his DUI prosecution, and we need not address his remaining complaint.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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