Com. v. Ramos, M. ( 2022 )

J-A24002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARIO RAMOS :
:
Appellant : No. 1552 EDA 2021
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0008480-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 13, 2022
Appellant, Mario Ramos, appeals from the trial court’s July 15, 2021
order denying his “Motion to Dismiss for Double Jeopardy,” in which Appellant
sought the dismissal of his pending criminal charges pursuant to the
compulsory joinder rule under 18 Pa.C.S. § 110. After careful review, we
affirm.
Appellant sets forth the facts of this case, as follows:
On May 3, 2020, … []Appellant[] was arrested after police
recovered marijuana and a firearm from a vehicle that he was
operating. Incident to his arrest, [Appellant] was charged with
Violations of the Uniform Firearms Act (“VUFA”) (18 Pa.C.S. §§
6105, 6106, and 6108) and … a preliminary hearing [was
scheduled for] May 19, 2020, in the Philadelphia Municipal Court.
[]Due to Covid-related court closings, the preliminary hearing was
continued several times into 2021. Also incident to his arrest,
[Appellant] was charged with possession of marijuana relative to
the marijuana recovered from his vehicle contemporaneously with
the firearm recovery. Relative to this marijuana recovery,
[Appellant] was issued a City of Philadelphia Code Violation
J-A24002-22
Notice[,] which demanded payment of a fine within ten days.1 …
[Appellant] did not timely respond to the Code Violation Notice.
At all times going forward, the Commonwealth was free to amend
the original Criminal Complaint to add the charge of possession of
marijuana.
1 Possession of marijuana is a crime (ungraded
misdemeanor) codified at 35 P.[]S. § 780-113(a)(16)[, and]
punishable by up to one year in prison and a $5,000 fine.
Thereafter, [Appellant] received a second Notice of Code
Violation[,] dated August 3, 2020, from the City of Philadelphia.
This notice included, inter alia, payment instructions to satisfy the
violation online, in person, or by mail, and included the potential
consequences for the failure to pay the citation[,] which included
“additional penalties and further legal action, including the filing
of a Code Enforcement Complaint in Municipal Court.”2 After
receiving this notice in the mail, [Appellant] acknowledged the
violation and paid the penalty prescribed.
2 At this juncture in [Appellant’s] prosecution, the charges
relative to the firearm recovered in [Appellant’s] vehicle and
the charge relative to the marijuana recovered from
[Appellant’s] vehicle were both in the jurisdiction of the
Philadelphia Municipal Court.
***
Thereafter, [Appellant] was scheduled for a preliminary hearing
on May 7, 2021. The case was continued until June 25, 2021, and
on that date, [it] was continued until July 30, 2021. On June 28,
2021, [Appellant] filed a Motion to Dismiss for Double Jeopardy in
the Philadelphia Court of Common Pleas[,] relying upon
Pennsylvania’s compulsory joinder statute, codified at 18 Pa.C.S.
§ 110. The motion was denied by the [trial court] on July 15,
2021. This interlocutory appeal is from that decision.
Appellant’s Brief at 3-4.
After Appellant filed a notice of appeal from the court’s July 15, 2021
order, the court ordered him to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Appellant timely complied, and the court then
filed a Rule 1925(a) opinion on January 11, 2022. Herein, Appellant presents
-2-
J-A24002-22
one issue for our review: “Did the [trial] court commit an error of law when it
denied Appellant’s Motion to Dismiss for Double Jeopardy based on 18 Pa.C.S.
§ 110?” Id. at 2.
Before considering Appellant’s issue, we note that the trial court’s order
denying his motion to dismiss on double jeopardy grounds did not make a
specific finding as to frivolousness. See Pa.R.Crim.P. 587(b)(4) (“In a case in
which the judge denies the motion [for dismissal], the findings of fact shall
include a specific finding as to frivolousness.”). This Court recently explained:
[A]n order denying a double jeopardy motion, that makes no
finding that the motion is frivolous, is a collateral order under Rule
313 of the Pennsylvania Rules of Appellate Procedure:
Rule 313. Collateral Orders
(a) General rule. An appeal may be taken as of right from
a collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from
and collateral to the main cause of action where the right
involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.
Pa.R.A.P. 313 (effective July 4, 2013). Rule 313 is jurisdictional
in nature. Commonwealth v. Blystone, … 119 A.3d 306, 312
([Pa.] 2015). The Note to Rule 313 states that an established
example of a collateral order is an order denying a pretrial motion
to dismiss “based on double jeopardy in which the court does not
find the motion frivolous.” Pa.R.A.P. 313 Note (citing Orie, supra
and Brady, supra). The planned amendment to the official note
of Rule 313 continues this precedent and states in relevant part
as follows:
Official Note: If an order meets the definition of a collateral
order, it is appealed by filing a notice of appeal or petition
for review. Pa.R.A.P. 313 is a codification of existing case
law with respect to collateral orders.
-3-
J-A24002-22
***
Examples include...an order denying a pre-trial motion to
dismiss on double jeopardy grounds if the trial court does
not also make a finding that the motion to dismiss is
frivolous. See Commonwealth v. Brady, … 508 A.2d 286,
289–91 (Pa. 1986) (allowing an immediate appeal from
denial of double jeopardy claim under collateral order
doctrine where trial court does not make a finding of
frivolousness); Commonwealth v. Orie, … 22 A.3d 1021(Pa. 2011). An order denying a pre-trial motion to dismiss
on double jeopardy grounds that also finds that the motion
to dismiss is frivolous is not appealable as of right as a
collateral order, but may be appealable by permission under
Pa.R.A.P. 1311(a)(3).
Pa.R.A.P. 313, Official Note (effective August 1, 2020). Bearing
the relevant version of Rule 313 in mind, along with the planned
amendment, Pennsylvania law makes clear that an order
denying a double jeopardy motion, which makes no finding
that the motion is frivolous, is a collateral order under Rule
313 an[d] immediately appealable. See id.Commonwealth v. Gross, 232 A.3d 819, 832–33 (Pa. Super. 2020) (en
banc), appeal denied, 242 A.3d 307 (Pa. 2020) (some emphasis omitted;
some emphasis added). Following Gross, we conclude that the court’s order
in this case is immediately appealable.
Moving on to the merits of Appellant’s issue, he contends that the court
erred by not dismissing his firearm charges under the compulsory joinder rule
set forth in section 110, “which requires the Commonwealth to join for trial all
offenses that occur within the same judicial district.” Appellant’s Brief at 6.
According to Appellant, he “pled guilty to the marijuana possession and paid
a $25 fine[,]” thereby prohibiting the Commonwealth from prosecuting him
separately for his firearm offenses, which “arose from the same criminal
episode as the marijuana possession offense.” Id. at 5-6.
-4-
J-A24002-22
Appellant’s argument that the trial court incorrectly declined to dismiss
his charges under the compulsory-joinder rule presents a pure question of
law. “Consequently, our scope of review is plenary, and our standard of
review is de novo.” Commonwealth v. Perfetto, 207 A.3d 812, 821 (Pa.
2019).
Section 110, entitled, “When prosecution barred by former
prosecution for different offense,” states, in pertinent part:
Although a prosecution is for a violation of a different provision of
the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or in
a conviction as defined in section 109 of this title (relating
to when prosecution barred by former prosecution for the
same offense) and the subsequent prosecution is for:
***
(ii) any offense based on the same conduct or arising
from the same criminal episode, if such offense was
known to the appropriate prosecuting officer at the
time of the commencement of the first trial and
occurred within the same judicial district as the former
prosecution unless the court ordered a separate trial
of the charge of such offense….
18 Pa.C.S. § 110 (emphasis added).
Thus, as Appellant correctly summarizes,
under [s]ection 110, a subsequent prosecution is barred by a
former prosecution if four requirements are met. First, the former
prosecution resulted in an acquittal or a conviction. Second, the
current prosecution arose from the same criminal episode as the
former prosecution. Third, the current offense was known to the
prosecutor at the time of the commencement of the former
prosecution. Fourth, the current offense occurred in the same
-5-
J-A24002-22
judicial district as the former prosecution. See Commonwealth
v. Fithian, 961 A.2d 66, 72 (Pa. 2008).
Appellant’s Brief at 11.
Instantly, Appellant concludes that,
[a]ll four requirements of [s]ection 110 are clearly met here.
First, the former prosecution of [Appellant] resulted in a guilty
plea for possessing marijuana, and the imposition and payment of
a $25 fine. Second, the current prosecution arose from the same
criminal episode as the violation for possessing marijuana. …
Third, the Philadelphia District Attorney’s Office — who reviewed
the [Philadelphia Police Department Arrest Report] in approving
the [firearm] charges, clearly knew of both prosecutions[,] as all
the paperwork generated by the arresting officers referenced not
only the possession of a firearm and marijuana, but further
referenced that [Appellant] was issued a Code Violation Notice for
the marijuana possession. Fourth, both prosecutions occurred
within the same judicial district, namely, the First Judicial District
of Pennsylvania. Because all four requirements of [s]ection 110
are met in this case, the lower court erred as a matter of law in
denying Appellant’s motion to dismiss.
Id. at 11-12 (footnote omitted).
Based on this Court’s recent, en banc decision in Commonwealth v.
Bennett, 246 A.3d 875 (Pa. Super. 2021) (en banc), appeal denied, 263 A.3d
1137 (Pa. 2021), we disagree with Appellant’s argument. In that case,
[Bennett] was stopped by police for driving with an illegal window
tint. During the stop, it was determined that [Bennett] was
driving with a suspended license, and a search of his vehicle
yielded an illegal firearm under the floor pad. [Bennett] was cited
for the traffic violations, and arrested for/charged with Persons
Not to Possess Firearms, Firearms Not to Be Carried without a
License, and Carrying Firearms on Public Streets in Philadelphia.
On May 24, 2019, counsel for [Bennett] appeared in traffic court
(Philadelphia Municipal Court) on behalf of [Bennett], to satisfy
the two citations. The Municipal Court had not scheduled a
hearing for Bennett, who remained in the county jail, and defense
counsel provided no notice to the Commonwealth that he intended
-6-
J-A24002-22
to appear and plead that Bennett was guilty of the summary
offense. Counsel paid the citation for the window tint, but was
told that he could not pay the citation for the suspended license,
because [Bennett] was not physically present. Several days later,
the Commonwealth withdrew the charges on the suspended
license.
On June 24, 2019, [Bennett] filed a Motion to Dismiss the
[firearm] charges in common pleas court pursuant to … Perfetto,
207 A.3d 812….[1] The [trial court] took the matter under
advisement, and on August 9, 2019, entered an Order denying
[Bennett’s] Motion.
Id. at 876 (some citations and brackets omitted).
On appeal to this Court, we concluded that section 110 did not apply to
Bennett’s case. We stressed that, “[f]or [section 110] to apply, a ‘former
prosecution’ is required.” Id. at 878. We explained that our “Court has held
that paying a fine and pleading guilty to a summary offense without notice to
the district attorney and appearing before a judicial officer is not a ‘former
prosecution’ to which [s]ection 110 applies.” Id. For instance,
[i]n Commonwealth v. Gimbara, 835 A.2d 371 (Pa. Super.
2003)…, the defendant received a citation for speeding and
another for driving with a suspended license. He mailed a guilty
plea and payment to the magistrate’s office for the charge of
speeding, but he also pleaded not guilty in that mailing to the
suspended-license charge. The magistrate processed the
payment for the first offense and set a hearing date for the second
charge. Following that hearing, the magistrate found the
defendant guilty. The defendant appealed to the trial court and
moved that the suspended-license charge be dismissed pursuant
____________________________________________
1 In Perfetto, the Pennsylvania Supreme Court held 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.
-7-
J-A24002-22
to the compulsory-joinder-rule. The trial court denied relief, and
this Court affirmed.
The Gimbara Court explained that a defendant must satisfy all
four prongs of the below test to compel a dismissal under Section
110:
(1) the former prosecution resulted in an acquittal or a
conviction, (2) the current prosecution must be based on
the same criminal conduct or have arisen from the same
criminal episode as the former prosecution, (3) the
prosecutor must have been aware of the current charges
before the commencement of the trial for the former
charges, and (4) the current charges and the former
charges must be within the jurisdiction of a single court.
Gimbara, 835 A.2d at 373–74 (quoting Commonwealth v.
Failor, … 770 A.2d 310, 313 ([Pa.] 2001)). This Court then opined
that “The third [prong] has not been met, because there was
never a former prosecution to which this prosecution is
subsequent.” Id. at 376. Mailing in the fine and guilty plea
for one offense was not a “former prosecution” under the
compulsory-joinder rule, because the defendant did not
stand trial. Thus, the protections of [s]ection 110 never
attached. Because he “was not subjected to successive trials for
offenses stemming from the same criminal episode,” id., the
defendant’s prosecution for driving with a suspended license could
proceed to trial.
Bennett, 246 A.3d at 878 (emphasis added).
The Bennett panel concluded that the rationale of Gimbara applied
equally to the facts of Bennett’s case, despite that Bennett sent his lawyer to
pay the fine for his summary offense, rather than mailing it. Id. at 879. We
explained:
Like the defendant in Gimbara, Bennett did not stand trial before
the minor judiciary. The Commonwealth never “subjected
[Bennett] to successive trials for offenses stemming from the
same criminal episode, [and his firearm-related charges are] not
barred under [s]ection 110” by filing a guilty plea with court staff
-8-
J-A24002-22
and paying a fine for his tinted windows. Gimbara, 835 A.2d at
376.
The Commonwealth had no control over when Bennett’s attorney
decided to appear at the in-take window of the Municipal Court of
Philadelphia, any more than it could control when a defendant
mails in a guilty plea and fine for a summary offense. “When a
defendant appears in person before a [magisterial district judge],
the prosecuting officer may prevent the entry of different pleas,
thus exercising the burden placed upon the Commonwealth by
[s]ection 110.” Id. at 377. But where a defense attorney enters
a guilty plea before court staff, without first informing the
Commonwealth, “such an opportunity is not presented, because
the prosecuting officer has no notice of when the pleas come into
the [Municipal Court] office.” Id. “Where there is no opportunity
for the Commonwealth to exercise its obligation under [s]ection
110, the purposes of [s]ection 110 would not be advanced.” Id.Accordingly, as in Gimbara, we find no error in the trial court’s
refusal to dismiss the felony and misdemeanor charges against
Bennett. Section 110 does not apply under this procedural
posture.
Id. (emphasis in original, footnote omitted).
The facts of this case are analogous to Gimbara and Bennett.
Appellant did not stand trial before the minor judiciary, and he was never
subjected to successive trials for offenses arising from the same criminal
episode. Thus, he was not subjected to a ‘former prosecution’ to which section
110 would apply simply because he pled guilty and paid a fine online.
Accordingly, the Commonwealth is not barred from prosecuting him for his
firearm offenses.
We note that Appellant attempts to distinguish Bennett from the instant
case, arguing that “in Bennett, there was no evidence … that indicated the
Commonwealth knew that motor vehicle citations were issued to Bennett. By
contrast, the Commonwealth here clearly knew that [Appellant] was being
-9-
J-A24002-22
charged not just with firearm offenses but also with possessing marijuana.”
Appellant’s Brief at 14.
We are unconvinced. The Bennett panel did not stress the
Commonwealth’s lack of knowledge of the charges against Bennett. Instead,
it emphasized that the Commonwealth had no notice that Bennett’s attorney
had entered a plea on Bennett’s behalf. See id. at 879 (“But where a
defense attorney enters a guilty plea before court staff, without first
informing the Commonwealth, “such an opportunity is not presented,
because the prosecuting officer has no notice of when the pleas come into the
[Municipal Court] office.”) (some emphasis in original; some emphasis added).
Here, Appellant does not claim that he notified the Commonwealth that he
was going to plead guilty and pay his fine. Thus, the Commonwealth’s
knowledge that Appellant was issued a citation for possession of marijuana
did not trigger application of section 110.
Therefore, in accordance with Bennett and Gimbara, we conclude that
Appellant was not subjected to a ‘former prosecution’ when he pled guilty and
paid the fine for his offense of possessing marijuana. Accordingly, section 110
does not bar the Commonwealth from prosecuting Appellant for his pending
firearm offenses, and the court properly denied Appellant’s motion to dismiss.
Order affirmed. Case remanded for further proceedings. Jurisdiction
relinquished.
- 10 -
J-A24002-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2022
- 11 -