Com. v. Kolaski, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHRISTOPHER KOLASKI : No. 3723 EDA 2015
Appeal from the Order November 19, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008572-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 22, 2021
The Commonwealth appeals from the order, entered in the Philadelphia
County Court of Common Pleas, granting Appellee Christopher Kolaski’s
motion to dismiss his misdemeanor driving under the influence (“DUI”)
charges pursuant to 18 Pa.C.S. § 110. Originally, this panel reversed the
court’s order and remanded for further proceedings, following the rationale of
Commonwealth v. Perfetto, 169 A.3d 1114 (Pa. Super. 2017) (en banc)
(“Perfetto I”).1 However, Perfetto I was subsequently reversed by our
Supreme Court in Commonwealth v. Perfetto, 207 A.3d 812 (Pa. 2019)
(“Perfetto II”). Consequently, our Supreme Court granted Appellee’s
petition for permission to appeal, vacated our prior decision, and remanded
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* Former Justice specially assigned to the Superior Court.
1See Commonwealth v. Kolaski, 179 A.3d 538 (Pa. Super. filed Oct. 6,
2017) (unpublished memorandum).
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for reconsideration in light of Perfetto II. After careful review, we again
reverse the court’s order and remand for further proceedings.
The relevant facts and procedural history of this case are as follows. On
January 10, 2009, Philadelphia Police stopped Appellee’s vehicle after noticing
reckless and erratic driving. Appellee’s eyes were watery and glassy, and he
was unable to keep his balance upon exiting the vehicle. The officers issued
him a traffic citation for careless driving and arrested him for DUI. On March
16, 2009, the Philadelphia Traffic Court found Appellee guilty in absentia of
careless driving. Thereafter, on June 9, 2014, the Philadelphia Municipal Court
convicted Appellee of two counts of DUI. Following sentencing, he timely
appealed to the Philadelphia Court of Common Pleas for a trial de novo. Prior
to his new trial, however, Appellee filed a motion to dismiss the DUI charges
pursuant to section 110. After a hearing on the motion, the court dismissed
the DUI charges on November 19, 2015, and held that Appellee’s prior Traffic
Court conviction barred the subsequent prosecution of his DUI offenses. The
Commonwealth timely appealed and filed a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The trial court filed its Rule
1925(a) opinion on June 15, 2016.
On October 6, 2017, this Court filed a memorandum decision relying on
Perfetto I to reverse the trial court’s order and remand for further
proceedings. See Kolaski, supra. In Perfetto I,
the defendant was cited for a summary offense and also charged
with three counts of DUI. [Perfetto I,] 207 A.3d at 815. A
hearing officer in the Philadelphia Municipal Court, Traffic Division,
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found the defendant guilty of the summary offense. Id. After a
preliminary hearing, the defendant’s DUI charges were bound
over for trial. Id. [The d]efendant filed a motion to dismiss,
based on the same argument in the instant case, invoking
subsection 110(1)(ii)—the compulsory joinder rule. Id. The trial
court granted the motion and dismissed [the] defendant’s DUI
charges. Id. The Commonwealth appealed and a divided en banc
panel of our Court reversed the trial court, concluding that the
defendant’s summary traffic offense could only be tried in the
Traffic Division of the Municipal Court and, thus, the defendant’s
subsequent prosecution for his DUI charges did not run afoul of
the compulsory joinder rule.
Commonwealth v. Atkinson, -- A.3d ----, 2021 PA Super 16, *2 (filed Feb.
8, 2021) (en banc).
Applying Perfetto I, this panel found that Appellee’s prosecution for
DUI in the Philadelphia Municipal Court was not barred by his earlier
prosecution for careless driving in the former Philadelphia Traffic Court. We
also pointed out that, at the time of Appellee’s offenses, Philadelphia had a
separate traffic court that adjudicated his summary traffic violation. However,
as of June 19, 2013, Philadelphia restructured the Municipal Court into two
sections, the General Division and the Traffic Division, which absorbed the
former Traffic Court.
Appellee filed a petition for permission to appeal with our Supreme
Court, which was granted. On May 17, 2019, the Court vacated our decision
and remanded for reconsideration of this case in light of Perfetto II. There,
the Supreme Court reversed our Court’s en banc decision [in
Perfetto I], noting that while the Traffic Division of the
Philadelphia Municipal Court has limited jurisdiction to “consider
only summary traffic offenses,” the General Division of the
Municipal Court “clearly and unambiguously ... has jurisdiction to
adjudicate any matter that is properly before [it, including both
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summary and misdemeanor offenses].” Perfetto [II], 207 A.3d
at 823. Thus, the Court concluded that the Commonwealth was
precluded from prosecuting the defendant for his pending DUI
charges under section 110(1)(ii), where all of the defendant’s
offenses could have been adjudicated in the General Division of
the Municipal Court. Id.
Atkinson, 2021 PA Super 16, at *2.
On remand, we permitted the parties to file new briefs. In the
Commonwealth’s post-remand brief, it raises two issues for our review:
I. Did the lower court err when it dismissed felony and
misdemeanor charges pursuant to 18 Pa.C.S. § 110 based on the
prior adjudication of summary traffic offenses in Philadelphia
Traffic Court, where an exception under 18 Pa.C.S. § 112 applies?
II. Should this Court deem waived [Appellee’s] claim that [s]ection
110 required his misdemeanor charges to be joined with this
summary traffic offenses[,] where he did not present it to the
Municipal Court that tried him initially but[,] instead[,] waited to
raise it for the first time at a trial de novo[?]
Commonwealth’s Brief at 1.
To begin, we note that:
Our standard of review of issues concerning the compulsory
joinder rule, 18 Pa.C.S. § 110, is plenary. Commonwealth v.
Reid, 35 A.3d 773, 776 (Pa. Super. 2012). The compulsory
joinder rule states, in relevant 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 ... 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
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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(1)(ii) (amended 2002)…. However, pursuant to
18 Pa.C.S. § 112(1), a former “prosecution is not a bar within the
meaning of section 109 of this title ... through section 111 of this
title ... [if t]he former prosecution was before a court which lacked
jurisdiction over the defendant or the offense.” 18 Pa.C.S. §
112(1). In Commonwealth v. Johnson, 221 A.3d 217 (Pa.
Super. 2019), appeal granted, 237 A.3d 962 (Pa. 2020),4 our
Court recognized that “[c]learly[, section 112(1)] is an exception
to [s]ection 110, because the exception applies to [s]ections 109-
111.” Id. at 220.
4 On August 5, 2020, the Pennsylvania Supreme Court
granted Johnson’s petition for allowance of appeal on the
following issue: Did not the Superior Court, in a published
opinion, misapply 18 Pa.C.S. § 112 in such a way as to
conflict with precedent from both the Superior Court and
this Court?
Atkinson, 2021 PA Super 16, at *2 (emphasis omitted).
In the Commonwealth’s first issue, it argues that Appellee’s prosecution
for the DUI charge is permitted under sections 110 and 112 because, when
Appellee was prosecuted for careless driving in 2009, the Philadelphia Traffic
Court had exclusive jurisdiction over his summary traffic offense. Thus,
there was no one court that had jurisdiction over both Appellee’s careless
driving charge and his DUI offense. The Commonwealth argues that the
timing of Appellee’s first prosecution makes this case distinguishable from
Perfetto II, where “all of the charges arising out of the same criminal episode
— i.e., a single traffic stop — in that case occurred in 2014, after the General
Assembly had eliminated the Philadelphia Traffic Court and, necessarily, its
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exclusive jurisdiction over summary traffic offenses.” Commonwealth’s Brief
at 10 (citing Perfetto II, 207 A.3d at 815) (emphasis in original). The
Commonwealth concludes that, “[t]he Philadelphia Traffic Court’s exclusive
jurisdiction over summary traffic offenses provided an exception, before June
19, 2013, to the rule of compulsory joinder for other non-summary offenses
arising out of the same criminal episode.” Id. at 10-11 (emphasis omitted;
footnote omitted).2
Based on this Court’s recent en banc decision in Atkinson, we agree
with the Commonwealth. There,
[o]n January 8, 2013, Atkinson was arrested and charged with
driving under the influence (DUI), 75 Pa.C.S. § 3802(a)(1), as
well as a violation of the Motor Vehicle Code (MVC) for
disregarding a traffic device, 75 Pa.C.S. § 3111(a). On March 13,
2013, Atkinson was found guilty in the now-eliminated Traffic
Court of Philadelphia3 of the offense of disregarding a traffic
device. No appeal was filed. The Commonwealth continued its
prosecution of the DUI offense in the Criminal Trial Division of the
Philadelphia Municipal Court. On August 3, 2015, Atkinson filed a
motion to dismiss the DUI offense, in the Municipal Court,
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2 We reject Appellee’s claim that the Commonwealth waived its argument
because it did not raise before the trial court, or in its Rule 1925(b) statement,
that an exception to section 110 applied under section 112. The trial
proceedings in this case occurred in 2014, and the Commonwealth’s Rule
1925(b) statement was filed in 2015. It was not until the pendency of the
Commonwealth’s appeal that Perfetto I and Perfetto II were decided, and
not until even more recently that this Court issued Johnson and Atkinson.
These decisions clearly developed the law on how sections 110 and 112 apply
to the Commonwealth’s practice in Philadelphia of separating prosecutions for
summary traffic offenses from DUI and other misdemeanor and felony
charges. Thus, we decline to deem the Commonwealth’s argument, premised
on these changes in the law, to be waived based on its failure to present its
precise claims years before the pertinent cases were decided.
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pursuant to section 110, the compulsory joinder rule. The
Municipal Court denied Atkinson’s motion to dismiss.
3 On June 19, 2013, the Traffic Court of Philadelphia was
effectively abolished when the General Assembly
restructured the Philadelphia Municipal Court, now
comprised of two administrative sections, the General
Division and the Traffic Division. See Act 17 of 2013, P.L.
55, No. 17 (June 19, 2013). Thereafter, all Traffic Court
responsibilities were transferred to the Municipal Court. On
April 26, 2016, the Pennsylvania Constitution was amended
to fully eliminate the Philadelphia Traffic Court. Perfetto
[II], 207 A.3d at 816 n.1.
Atkinson, 2021 PA Super 16, at *1.
In affirming the Municipal Court’s order denying Atkinson’s motion to
dismiss, we explained:
Here, there is no dispute that Atkinson’s prosecution on the
summary traffic offense resulted in a conviction, the prosecution
on her misdemeanor charge would be based on the same criminal
conduct or arose from the same criminal episode, the
Commonwealth knew of the misdemeanor charge before the
summary trial, and the misdemeanor charge arose in the same
judicial district and at the same time as the traffic offense of which
Atkinson has already been convicted. See 18 Pa.C.S. §
110(1)(ii). However, unlike Perfetto [II], at the time Atkinson
was prosecuted and found guilty of her summary offense, neither
the Traffic Division nor the General Division of the Municipal Court
existed. Rather, the Municipal Court and the Traffic Court of
Philadelphia were separate entities. See Act 1997-2 (S.B. 178),
P.L. 3, § 1, approved Feb. 14, 1997, eff. Jan. 5, 1998 (former
section 1121 designating Philadelphia Municipal Court and former
section 1321 designating Traffic Court of Philadelphia);5 see
also Perfetto [II], 207 A.3d at 816 n.1 (“The amended
statute merged the Philadelphia Traffic Court into the Philadelphia
Municipal Court by reorganizing the Municipal Court into two
divisions: General Division and Traffic Division.”) (emphasis
added).
5 At the time Atkinson was adjudicated for her summary
offense, the Municipal Court and Traffic Court of Philadelphia
were designated as “Minor Courts” in this Commonwealth.
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The Philadelphia Municipal Court was its own entity
(Subchapter B under Chapter 11 of Article D of Subpart A of
Part II of Title 42), while the Traffic Court of Philadelphia
was its own entity under Subchapter B of Chapter 13, Traffic
Courts. The Municipal Court is now comprised of Civil,
Criminal and Traffic Divisions. See
https://www.courts.phila.gov/municipal (last visited
12/17/20).
Thus, at the time Atkinson was tried on her summary offense, the
Commonwealth could not have also adjudicated her on her DUI in
Traffic Court, which had exclusive jurisdiction over Motor Vehicle
Code violations. Similarly, the Commonwealth could not have
tried Atkinson’s summary traffic offense in Philadelphia Municipal
Court (Criminal Trial Division). Therefore, the “Commonwealth
has not placed [Atkinson] ‘in jeopardy of life or limb’”6 regarding
her DUI offense, Johnson, [221 A.3d at] 221,7 and the
Philadelphia Municipal Court (Criminal Trial Division) may properly
assert its separate, original jurisdiction over that charge under
section 112(1). Accordingly, our holding in this case does not run
afoul of the Supreme Court’s holding in Perfetto [II] or the
compulsory joinder rule and the trial court properly denied
Atkinson’s motion to dismiss. Reid, supra.6See Pa. Const. Art. I, § 10 (“No person shall, for the same
offense, be twice put in jeopardy of life or limb.”).
7 Similarly, in Johnson, our Court concluded that the
Commonwealth properly tried and convicted the defendant
on summary charges in municipal court and brought a drug
charge arising from the same episode in the trial court.
[Johnson,] 221 A.3d at 221. Specifically, the Court found
that section 112(1) trumped section 110 where the
municipal court, which had jurisdiction over the defendant’s
prosecution for driving with a suspended license, did not
have jurisdiction over the defendant’s drug charge. Id. In
affirming the trial court’s refusal to dismiss the drug charge
under the compulsory joinder rule, the Johnson panel
noted that the case was unlike Perfetto [II] where the
summary-offense prosecution occurred before a court that
also had jurisdiction over the DUI charge.
Atkinson, 2021 PA Super 16, at *3 (emphasis in original).
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Here, it is clear that under the rationale of Atkinson, Appellee’s 2009
conviction for careless driving in the then-extant Philadelphia Traffic Court,
which had exclusive jurisdiction over that offense, does not bar his subsequent
prosecution for DUI. This conclusion does not contradict our Supreme Court’s
decision in Perfetto II. Therefore, we reverse the trial court’s order
dismissing Appellee’s DUI charge and remand for further proceedings. Given
our disposition, we need not address the second issue raised by the
Commonwealth.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Justice Fitzgerald did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/21
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