Com. v. Dockery, J. ( 2021 )

J-A01028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JHARON DOCKERY :
:
Appellant : No. 504 EDA 2020
Appeal from the Order Entered January 27, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004424-2019
BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY OLSON, J.: FILED APRIL 07, 2021
Appellant, Jharon Dockery, appeals from the January 27, 2020 order
denying, in part, his motion to dismiss the charge of possession of a controlled
substance with the intent to deliver.1 We affirm.
The trial court summarized the factual history as follows:
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30). The record demonstrates that Appellant was
charged with the felony offense of possession with the intent to deliver less
than one pound of marijuana (a Schedule I controlled substance) and an
unknown amount of cocaine (a Schedule II controlled substance), as well as
the misdemeanor offenses of intentional possession of a controlled substance,
35 P.S. § 780-113(a)(16), possession of marijuana, 35 P.S.
§ 780-113(a)(31), and possession of drug paraphernalia, 35 P.S.
§ 780-113(a)(32). See Criminal Information, 6/24/19. In its January 27,
2020 order, the trial court granted, in part, Appellant’s motion to dismiss as
it pertained to the three misdemeanor offenses.
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[Appellant’s] arrest in this case arose from a [] stop of his vehicle
by officers of the Philadelphia Police Department on March 1,
2019. During the [vehicle] stop, the [police] officers recovered
crack cocaine, marijuana, and drug paraphernalia from the
vehicle. Although [Appellant] fled from the area before the
[police] officers could take him into custody, he was arrested 12
days later and charged with [the] felony [offense of possession
with the intent to deliver (cocaine and marijuana)] and [the] three
[afore-mentioned] misdemeanor drug [offenses]. See Docket,
CP-51-CR-0004424-2019.
The [police] officers who [] stopped [Appellant’s vehicle] also []
issued a traffic citation to him for operating a vehicle without
headlights [in violation of] 75 Pa.C.S.[A.] § 4303(a), a charge that
was docketed separately from the instant case. See Traffic
Docket, Citation I8S0485763 [(]attached as "Exhibit A" to
[Appellant’s] Motion to Dismiss[)]. On May 3, 2019, [Appellant]
was found guilty in absentia for the traffic offense in the Traffic
Division of the Philadelphia Municipal Court.
On January 22, 2020, [Appellant] moved to dismiss the four drug
charges in this case, claiming that the Commonwealth had been
required to try those charges simultaneously with the traffic
charge. Given that he had already been tried and convicted for
the traffic offense in the [Traffic Division of the] Philadelphia
Municipal Court, [Appellant] argued that further prosecution of the
drug charges would violate the protection from subsequent
prosecutions afforded to him by Pennsylvania's compulsory
joinder statute, 18 Pa.C.S.[A.] § 110. In his motion[ to dismiss
the four drug charges, Appellant] acknowledged that dismissal of
the felony [possession with the intent to deliver] charge would be
contrary to the holding in Commonwealth v. Johnson, 221 A.3d
217 (Pa. Super. 2019), [appeal granted, 237 A.3d 962 (Pa.
2020),] but contended that the holding in Johnson was
erroneous.
On January 27, 2020, [the trial c]ourt granted[, in part,
Appellant’s] dismissal motion as to the three misdemeanor [drug]
charges but denied [the dismissal motion, in part,] as to the felony
[possession with the intent to deliver] charge.[FN2]
[FN2] At the hearing on [Appellant’s] dismissal motion, the
Commonwealth conceded that dismissal of the three
misdemeanor drug charges was appropriate in light of []
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Johnson, [supra,], and Commonwealth v. Perfetto, 207
A.3d 812 (Pa. 2019).
Trial Court Opinion, 4/28/20, at 2-3 (some record citations omitted). This
appeal followed.2
Appellant raises the following issue for our review:
Did [] the [trial] court err in denying Appellant's motion to dismiss
pursuant to 18 Pa.C.S.[A. § 110(1)(ii)] where Appellant had
previously been convicted of [a traffic offense] which arose from
the same criminal episode in the same judicial district as the
[possession with intent to deliver] offense in the instant case?
Appellant’s Brief at 3.
Preliminarily, we note that although the trial court failed to adhere to
the requirements of Pennsylvania Rule of Criminal Procedure 587(B),3 which
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2 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
3 Pennsylvania Rule of Criminal Procedure 587(B) states, in pertinent part,
Rule 587. Motion for Dismissal
...
(B) Double Jeopardy
(1) A motion to dismiss on double jeopardy grounds shall state
specifically and with particularity the basis for the claim of double
jeopardy and the facts that support the claim.
(2) A hearing on the motion shall be scheduled in accordance with
Rule 577 (Procedures Following Filing of Motion). The hearing
shall be conducted on the record in open court.
(3) At the conclusion of the hearing, the [trial court] shall enter
on the record a statement of findings of fact and conclusions of
law and shall issue an order granting or denying the motion.
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pertains to motions for dismissal on grounds of double jeopardy, “an order
denying a double jeopardy motion, that makes no finding that the motion is
frivolous, is a collateral order”4 under Pennsylvania Rule of Appellate
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(4) In a case in which the [trial court] denies the motion, the
findings of fact shall include a specific finding as to frivolousness.
(5) If the [trial court] makes a finding that the motion is frivolous,
the [trial court] shall advise the defendant on the record that a
defendant has a right to file a petition for review of that
determination pursuant to Rule of Appellate Procedure [1311]
within 30 days of the order denying the motion.
(6) If the [trial court] denies the motion but does not find it
frivolous, the [trial court] shall advise the defendant on the record
that the denial is immediately appealable as a collateral order.
Pa.R.Crim.P. 587(B)(1-6). We note that Rule 1311 was formerly cited as
Pa.R.A.P. 1573.
Here, a review of the record demonstrates that the trial court failed to comply
with Rule 587(B)(3) through (6) when it denied, in part, Appellant’s double
jeopardy motion. In particular, at the conclusion of the hearing held on
Appellant’s double jeopardy motion, the trial court failed to enter on the record
a statement of findings of fact and conclusions of law and to enter a written
order denying Appellant’s double jeopardy motion pursuant to Rule 587(B)(3).
Furthermore, the trial court, in denying, in part, Appellant’s double jeopardy
motion, failed to make a specific finding as to the frivolousness of Appellant’s
double jeopardy motion pursuant to Rule 587(B)(4). See Trial Disposition and
Dismissal Form, 1/27/20. Finally, because the trial court did not find
Appellant’s motion to be frivolous, the trial court was required, but failed, to
notify Appellant that the denial of his double jeopardy motion was immediately
appealable as a collateral order. See Rule 587(B)(6).
4 A collateral order is defined as “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(b).
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Procedure 313 and, therefore, is immediately appealable. Commonwealth
v. Gross, 232 A.3d 819, 832-833 (Pa. Super. 2020) (en banc), appeal denied,
242 A.3d 307 (Pa. 2020); see also Pa.R.A.P. 313(a) (stating, “[a]n appeal
may be taken as of right from a collateral order of a trial court”). Therefore,
this Court has appellate jurisdiction over the trial court’s collateral order
denying, in part, Appellant’s double jeopardy motion. Gross, 232 A.2d at
833 n.1.
Appellant’s challenge to the trial court’s denial, in part, of his double
jeopardy motion presents a pure question of law because the relevant facts of
the case are undisputed. Consequently, our standard of review is de novo, as
with all questions of law, and our scope of review is plenary. Perfetto, 207
A.3d at 821.
Section 110 of the Pennsylvania Crimes Code, also known as the
compulsory joinder statute, states, in pertinent part,
§ 110. When prosecution barred by former prosecution
for different offense
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
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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.A. § 110(1)(ii).
Subsection 110(1)(ii) of the compulsory joinder statute clearly
and unambiguously contains four primary elements, which, if met,
preclude a prosecution due to a former prosecution for a different
offense:
(1) the former prosecution must have resulted in an
acquittal or conviction;
(2) the current prosecution is based upon the same
criminal conduct or arose from the same criminal
episode as the former prosecution;
(3) the prosecutor was aware of the instant charges
before the commencement of the trial on the former
charges; and
(4) the current offense occurred within the same judicial
district as the former prosecution.
Perfetto, 207 A.3d at 821 (citation omitted). Section 112 of the Crimes Code
operates as an exception to Section 110, however, permitting subsequent
prosecution of an offense when the “former prosecution was before a court
which lacked jurisdiction over the defendant or the offense.” 18 Pa.C.S.A.
§ 112(1). See Commonwealth v. Atkinson, ___ A.3d ___, 2021 WL
419172, *2 (Pa. Super. 2/28/21) (en banc).
Here, Appellant argues that he satisfied the four-prong test for
application of Section 110(1)(ii), as set forth in Perfetto, and, therefore, his
possession with intent to deliver charge should have been dismissed on double
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J-A01028-21
jeopardy grounds. Appellant’s Brief at 9. Appellant concedes that the
circumstances in the instant case are indistinguishable from the facts
presented in Johnson, where this Court held that pursuant to Rule 112, the
subsequent prosecution of the defendant for a possession with intent to deliver
(heroin) charge before the Court of Common Pleas of Philadelphia County did
not violate the defendant’s rights against double jeopardy because the
Philadelphia Municipal Court lacked subject-matter jurisdiction to adjudicate
the matter since the offense was punishable by a maximum sentence of
greater than 5 years’ incarceration.5 Id.; see also Johnson, 221 A.3d at
221. Appellant asserts, however, that this Court’s decision in Johnson was
“wrongly decided[.]” Appellant’s Brief at 9. We disagree.
In denying Appellant’s request to dismiss the possession with intent to
deliver charge on double jeopardy grounds, the trial court stated,
a key question in this case is whether the Philadelphia Municipal
Court could have exercised jurisdiction over the [possession with
intent to deliver] charge when it adjudicated [Appellant’s] traffic
citation for operating a vehicle without headlights. Clearly, the
[Philadelphia] Municipal Court could not have done so. The
[Philadelphia] Municipal Court's subject-matter jurisdiction does
not extend to criminal offenses punishable by a term of
imprisonment greater than five years. See Johnson, 221 A.3d
[at] 220 (citing 42 Pa.C.S.[A.] § 1123(a)(1), (2)). Because the
[possession with intent to deliver] charge alleges the delivery of
crack cocaine, it carries a maximum possible penalty of ten years[’
incarceration]. 35 P.S. [§] 780-113(f)(1.1). Therefore, the
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5The offense of possession with the intent to deliver (heroin) was punishable
by a maximum sentence of 15 years’ incarceration. Johnson, 221 A.3d at
221.
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[Philadelphia] Municipal Court lacked jurisdiction over the
[possession with intent to deliver] charge, and pursuant to 18
Pa.C.S.[A.] § 112(1), the Commonwealth is not barred from
continuing to prosecute that offense in [the Court of Common
Pleas in Philadelphia County].
Trial Court Opinion, 4/28/20, at 4.
A review of the record demonstrates that Appellant was convicted of a
traffic summary offense for operating a vehicle without headlights, in violation
of 75 Pa.C.S.A. § 4303(a), in Philadelphia Traffic Court, a division of
Philadelphia’s Municipal Court. See Appellant’s Motion to Dismiss, 1/22/20,
at Exhibit A. The Commonwealth concedes, and we agree, that Appellant’s
three misdemeanor drug charges were required to be brought against him at
the same time as the traffic summary offense, pursuant to Section 110(1)(ii),
and that those misdemeanor drug charges were properly dismissed on double
jeopardy grounds. N.T., 1/27/20, at 5; see also Commonwealth’s Brief at
5-7. Appellant’s possession with the intent to deliver charge, however,
involved cocaine and less than one pound of marijuana. Cocaine is a Schedule
II narcotic, and the punishment for possession with the intent to deliver
cocaine is, inter alia, a maximum sentence of 10 years’ incarceration. See 35
P.S. § 780-113(f)(1.1) (stating, a defendant convicted of possession with the
intent to deliver cocaine shall, inter alia, “be sentenced to imprisonment not
exceeding ten years); see also 35 P.S. §780-104(2)(i)(4) (designating
cocaine as a Schedule II narcotic). The Philadelphia Municipal Court has
subject-matter jurisdiction to adjudicate offenses punishable by 5 years’
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incarceration, or less.6 Therefore, the Philadelphia Municipal Court lacked
subject-matter jurisdiction to adjudicate Appellant on his possession with
intent to deliver (cocaine) charge and the matter was subject to adjudication
before the Court of Common Pleas of Philadelphia County. See Johnson, 221
A.3d at 221. Because Appellant’s possession with intent to deliver charge was
formerly before the Philadelphia Municipal Court, which lacked subject-matter
jurisdiction over the matter, Section 112 provides an exception to the
compulsory joinder statute, Section 110(1)(ii), and permits the charge to be
brought in the Court of Common Pleas of Philadelphia County without violating
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6 Section 1123 of the Judicial Code states, in pertinent part,
§ 1123. Jurisdiction and venue
(a) General rule.--Except as otherwise prescribed by any
general rule adopted pursuant to section 503 (relating to
reassignment of matters), the Philadelphia Municipal Court shall
have jurisdiction of the following matters:
(1) Summary offenses, except those arising out of the same
episode or transaction involving a delinquent act for which a
petition alleging delinquency is filed under Chapter 63 (relating
to juvenile matters).
(2) Criminal offenses by any person (other than a juvenile) for
which no prison term may be imposed or which are
punishable by imprisonment for a term of not more than
five years, including indictable offenses under Title 75
(relating to vehicles).
42 Pa.C.S.A. § 1123(a)(1) and (2) (emphasis added).
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Appellant’s constitutional rights against double jeopardy.7 See Johnson, 221
A.3d at 221. See also Atkinson, 2021 WL 419172 at *3. Consequently, we
discern no error of law or abuse of discretion in the trial court’s denial, in part,
of Appellant’s motion to dismiss the possession with intent to deliver charge
on grounds of double jeopardy.
Order affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2021
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7 Article I, Section 10 of the Pennsylvania Constitution states that, “[n]o
person shall, for the same offense, be twice put in jeopardy of life or limb[.]”
Pa Const. Art. I, § 10.
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