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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: JUNE 14, 2021
Appellant, Jharon Dockery, appeals from the January 27, 2020 order
that denied his motion to dismiss the felony charge of possession of controlled
substances with the intent to deliver.1 In light of our Supreme Court’s recent
decision in Commonwealth v. Johnson, 247 A.3d 981 (Pa. 2021), we
reverse the trial court’s January 27, 2020 order as it pertains to the denial of
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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 the January 27,
2020 order challenged on appeal, the trial court granted Appellant’s motion to
dismiss the three misdemeanor offenses.
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Appellant’s motion to dismiss the felony offense of possession of controlled
substances with the intent to deliver.2
The trial court summarized the factual history as follows:
[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 controlled substances (cocaine and
marijuana)] and [the] three [aforementioned] 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
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2 On April 7, 2021, relying, in part, on this Court’s decision in Commonwealth
v. Johnson, 221 A.3d 217 (Pa. Super. 2019), the panel filed a memorandum
affirming the trial court’s January 27, 2020 order insofar as it denied
Appellant’s motion to dismiss his felony drug offense. On April 21, 2021,
Appellant filed a petition for reconsideration after our Supreme Court reversed
the decision set forth in Johnson, 221 A.3d at 217. See Johnson, 247 A.3d
at 981. On May 25, 2021, in a per curiam order, we granted panel
reconsideration and withdrew the April 7, 2021 memorandum.
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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),[3] 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 []
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.4
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 summary traffic offense] which
arose from the same criminal episode [and] in the same judicial
district as the [possession with intent to deliver] offense in the
instant case?
Appellant’s Brief at 3.
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3 Subsequent to the trial court issuing its April 28, 2020 Rule 1925(a) opinion,
our Supreme Court granted Johnson’s petition for allowance of appeal but did
not author its decision until March 25, 2021.
4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Preliminarily, we note that although the trial court failed to adhere to
the requirements of Pennsylvania Rule of Criminal Procedure 587(B),5 which
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5 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.
(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
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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”6 under Pennsylvania Rule of Appellate
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 of his double jeopardy
motion presents a pure question of law because the relevant facts of the case
are undisputed. Consequently, as with all questions of law, our standard of
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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, 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).
6 A collateral order is defined as, “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(b).
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review is de novo 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
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;
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(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(1) of the Pennsylvania 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). Our
Supreme Court recently held that, “the offense” referred to in Section 112(1)
“means the offense that was the subject of an initial prosecution resulting in
a conviction or acquittal.” Johnson, 247 A.3d at 987. The Johnson Court
explained, “[t]he ultimate purport, with respect to the summary-and-greater-
offenses paradigm, is that the Commonwealth must generally assure that
known offenses are consolidated at the common pleas [court] level, when they
arise out of a single criminal episode and occur in the same judicial district.”
Id.
In Johnson, Johnson was charged with a summary traffic offense and
two felony drug offenses stemming from a single traffic stop. Id. at 982. The
felony drug offenses each prescribed a maximum penalty of fifteen years’
incarceration. Id. The Philadelphia Traffic Court, a division of Philadelphia’s
Municipal Court, convicted Johnson in absentia of the summary traffic offense.
Id. The Commonwealth subsequently filed felony drug charges against
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Johnson in the Court of Common Pleas in Philadelphia County, whereupon
Johnson moved to dismiss the charges on the ground of double jeopardy,
“contending that the [Commonwealth] was required to try all of the offenses
simultaneously, per the compulsory joinder requirements of Section 110[.]”
Id. The Commonwealth argued that its subsequent prosecution of the felony
drug charges was permitted by Section 112(1). Id. at 982-983. Ultimately,
our Supreme Court held that Section 112(1) does not provide an exception
permitting the Commonwealth’s subsequent prosecution of a felony crime at
the common pleas court level on the ground that the municipal court, or a
division of the municipal court such as the traffic court, lacked jurisdiction over
the felony crime due to the potential penalty which could be imposed if the
defendant were convicted.7 Id. at 987. Rather, the Commonwealth was
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7 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
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required to consolidate both the summary traffic offense and the greater
felony offense arising out of a single criminal episode and occurring in the
same judicial district by filing all of the charges with the common pleas court.
Id.
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
jeopardy grounds. Appellant’s Brief at 9. Appellant asserts that the
circumstances in the instant case are indistinguishable from the facts
presented in Johnson, and the Commonwealth, therefore, was required to
consolidate the charges stemming from the traffic stop and bring those
charges before the common pleas court. Appellant’s Petition for
Reconsideration, 4/21/21, at 9. We agree.
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
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five years, including indictable offenses under Title 75
(relating to vehicles).
42 Pa.C.S.A. § 1123(a)(1) and (2) (emphasis added). Because Johnson faced
a potential maximum sentence of fifteen years’ incarceration for each of his
two felony charges, the Philadelphia Traffic Court lacked jurisdiction to
adjudicate these felony offenses.
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[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
[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 on May 3, 2019, Appellant was
convicted in absentia of a summary traffic 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. On June 24, 2019, the
Commonwealth charged Appellant with the three aforementioned
misdemeanor drug charges and the felony drug offense in the Court of
Common Pleas in Philadelphia County. See Criminal Information, 6/24/19.
Based upon our Supreme Court’s recent decision in Johnson, the
Commonwealth was required to bring the summary traffic offense, the three
misdemeanor drug charges, and the felony drug charge, all stemming from
Appellant’s traffic stop and occurring in a single judicial district, in a
consolidated matter before the Court of Common Pleas in Philadelphia County.
Johnson, 247 A.3d at 987. Therefore, Appellant’s motion to dismiss his
felony offense on the ground of double jeopardy was denied in error.
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Consequently, we reverse the January 27, 2020 order as it pertains to the trial
court’s denial of Appellant’s motion to dismiss the felony charge of possession
of controlled substances (cocaine and marijuana) with the intent to deliver.
Order reversed, in part.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/21
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