Com. v. Powell, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES POWELL,
Appellee No. 2460 EDA 2015
Appeal from the Order Entered July 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0048966-2012
BEFORE: BENDER, P.J.E., OLSON, J., AND FITZGERALD,* J.
MEMORANDUM BY BENDER, P.J.E.: FILED: March 12, 2021
The Commonwealth appeals from the order, entered in the Philadelphia
County Court of Common Pleas, granting Appellee James Powell’s petition to
file an interlocutory appeal and dismissing 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
____________________________________________
1 See Commonwealth v. Powell, 2460 EDA 2015, unpublished
memorandum (Pa. Super. filed Sept. 22, 2017).
* Former Justice specially assigned to the Superior Court.
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remanded for reconsideration in light of Perfetto II. After careful review, we
again reverse the court’s order and remand for further proceedings.
The trial court summarized the facts and procedural history of this case,
as follows:
[O]n December 1, 2012, Appellee … was arrested in Philadelphia
after officers observed him disregard a red light, and observed
that he had bloodshot eyes, a relaxed demeanor, and that there
was a moderate odor of marijuana coming from the automobile.
[Appellee] was arrested and subsequently charged with the
misdemeanor offense of [DUI], and summary offenses for traffic
violations, including: Disregarding a Red Light, Driving Without a
License, and Driving a Vehicle with Registration Suspended. On
February 14, 2013, [Appellee] was found guilty in [abstentia of]
all three traffic code violations in the Philadelphia Traffic Court;
the DUI charge was not adjudicated on that date. On June 12,
2015, [Appellee] moved to dismiss the DUI charge in Municipal
Court[,] … arguing that the Commonwealth was barred from
prosecuting him under the compulsory joinder provisions of 18
Pa.C.S. § 110[(1)](ii) because he was previously prosecuted for[,]
and convicted of[,] traffic violations arising from the same criminal
episode. On that date, [the Municipal Court] denied [Appellee’s]
motion. [Appellee] then petitioned for an interlocutory appeal to
the [Philadelphia] Court of Common Pleas. On July 31, 2015, the
[court] granted [Appellee’s] petition and dismissed the charges
pursuant to Rule 110.
Trial Court Opinion, 1/28/16, at 1-2 (footnote and citations to the record
omitted).
The Commonwealth filed a timely notice of appeal and complied with
the trial court’s order to file 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
January 28, 2016. On September 22, 2017, this Court filed a memorandum
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decision relying on Perfetto I to reverse the trial court’s order and remand
for further proceedings. See Powell, 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,
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 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 violations. 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 June 27, 2019, the Court vacated our decision
and remanded for reconsideration of this case in light of Perfetto II. There,
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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
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 one issue 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?
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 this case, the Commonwealth 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 summary
traffic charges and his DUI offense, making this case distinguishable from
Perfetto II, where “all of the charges arising out of the same criminal episode
… occurred in 2014 — after the General Assembly eliminated the Philadelphia
Traffic Court of its exclusive jurisdiction over summary traffic offenses.”
Commonwealth’s Brief at 14.
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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,
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
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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.
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
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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).
Here, it is clear that under the rationale of Atkinson, Appellee’s 2013
conviction for summary traffic offenses in the then-extant Philadelphia Traffic
Court, which had exclusive jurisdiction over those offenses, 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.
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: 3/12/21
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