Com. v. Jordan, G. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
GARY GARNETT JORDAN :
:
Appellant : No. 1392 EDA 2015
Appeal from the Order April 13, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014422-2014
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 24, 2021
In this matter on remand from our Supreme Court, Appellant, Gary
Garnett Jordan, appeals from the order of the Court of Common Pleas of
Philadelphia County denying his motion to dismiss driving under the influence
(“DUI”)1 charges. We reverse the order denying Appellant’s motion to dismiss
and remand for further proceedings consistent with this memorandum.
On November 28, 2013, Appellant was arrested during a traffic stop in
the City of Philadelphia and charged with DUI, a misdemeanor, and the
summary offense of careless driving.2 On January 30, 2014, Appellant entered
a guilty plea in the Traffic Division of Philadelphia Municipal Court to
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802.
2 75 Pa.C.S. § 3714.
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disregarding a traffic device3 relating to the November 28, 2013 incident. The
DUI charge was then listed for trial in the General Division of Philadelphia
Municipal Court. On October 1, 2014, Appellant was found guilty of two counts
of DUI following trial.
Following his DUI conviction in Municipal Court, Appellant filed a timely
demand for trial de novo in the Court of Common Pleas. Appellant thereafter
filed in the Court of Common Pleas a motion to dismiss the DUI charges
pursuant to Section 110 of the Crimes Code, 18 Pa.C.S. § 110, which is
commonly known as the compulsory joinder rule. On April 13, 2015, the Court
of Common Pleas denied the motion. Appellant filed a timely notice of appeal
from this order.
On July 18, 2016, this Court issued a memorandum decision affirming
the order denying Appellant’s motion to dismiss and rejecting his argument
that the compulsory joinder rule barred his DUI retrial in the Court of Common
Pleas following his summary traffic offense conviction. See Commonwealth
v. Jordan, No. 1392 EDA 2015, unpublished memorandum at 6 (Pa. Super.
filed July 18, 2016) (withdrawn). Appellant thereafter petitioned this Court
for en banc reargument, and en banc certification was granted on August 30,
2016. On December 12, 2017, an en banc panel of this Court issued a
memorandum decision remanding to the Court of Common Pleas for a
determination of whether the lower court’s April 13, 2015 order was
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3 75 Pa.C.S. § 3111(a).
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appealable as a collateral order. See Commonwealth v. Jordan, No. 1392
EDA 2015, unpublished memorandum at 3-4 (Pa. Super. filed December 12,
2017) (en banc) (vacated).4
Appellant thereafter filed a petition for allowance of appeal in our
Supreme Court from the en banc panel’s December 12, 2017 decision. On
June 17, 2019, the Supreme Court issued a per curiam order granting the
petition for allowance of appeal, vacating this Court’s order, and remanding
to this Court for proceedings consistent with the Supreme Court’s decision in
Commonwealth v. Perfetto, 207 A.3d 812 (Pa. 2019). See
Commonwealth v. Jordan, 215 A.3d 2 (Pa. 2019) (per curiam). Following
remand and upon further briefing of the parties, this matter is presently before
this panel for disposition.5
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4 Relying on Commonwealth v. Diggs, 172 A.3d 661 (Pa. Super. 2017),
vacated and remanded by 217 A.3d 183 (Pa. 2019), the en banc panel
concluded that Pennsylvania Rule of Criminal Procedure 587(B) required a
finding that the order denying Appellant’s motion to dismiss was non-frivolous
as a necessary prerequisite to this Court’s immediate review of the order as a
collateral order. However, the Diggs decision was also subsequently vacated
by our Supreme Court and remanded pursuant to Perfetto. In light of our
Supreme Court’s vacation of our en banc Court’s prior order and remand of
this matter to this Court directing that we should reconsider the merits in light
of Perfetto, we conclude that there is no procedural impediment to our review
of Appellant’s appeal from the April 13, 2015 order.
5 On August 6, 2019, this Court issued a rule to show cause as to why this
matter should not be remanded to the Court of Common Pleas for the
resolution of this matter. Following the responses of the parties to the rule to
show cause, this Court issued a per curiam order on March 25, 2021 removing
this matter from en banc consideration and directing that the Prothonotary list
this matter before a three-judge panel and establish a new briefing schedule.
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In his remand brief, Appellant presents the following issue for our
review:
Did not the lower court err in denying [A]ppellant’s motion to
dismiss pursuant to 18 Pa.C.S. § 110 where [A]ppellant had
previously been convicted of an offense which arose from the
same criminal episode as the offense in the instant case?
Appellant’s Brief at 3. Our standard of review of a motion to dismiss on the
basis of the compulsory joinder rule is de novo, and our scope of review is
plenary. Commonwealth v. Pammer, 232 A.3d 931, 933 (Pa. Super. 2020).
Appellant argues that this matter is directly controlled by the Supreme
Court’s decision in Perfetto, which held that the Commonwealth was
precluded under the compulsory joinder rule from prosecuting the defendant
on DUI charges after he had already been convicted of summary traffic
offenses in the Traffic Division of Philadelphia Municipal Court. 207 A.3d at
822-24. Appellant asserts that, just as in Perfetto, each of the criteria for
the application of the compulsory joinder rule are met here, as the summary
traffic citation resulted in Appellant’s conviction of disregarding a traffic
device; the prosecutor was aware of the DUI proceeding at the time that
Appellant pleaded guilty in the Traffic Division; and the instant DUI
prosecution arose from the same criminal episode and in the same jurisdiction
as the summary proceeding. Therefore, Appellant contends that the
compulsory joinder rule mandates that this Court reverse the Court of
Common Pleas order denying Appellant’s motion to dismiss the DUI charges
against him.
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In its responsive brief, the Commonwealth does not contest the
application of Perfetto to the present case, but instead asserts that Appellant
has waived his compulsory joinder rule challenge to the DUI charges rule
based upon his failure to raise such an objection prior to his October 1, 2014
trial in Municipal Court. The Commonwealth contends that, while Appellant
demanded a trial de novo in the Court of Common Pleas following his Municipal
Court conviction, a trial de novo is limited to a determination of guilt or
innocence only and does not allow for the relitigation of pre-trial matters that
could have been raised in the Municipal Court. The Commonwealth argues
that when Appellant proceeded to trial on the DUI charges in Municipal Court
after his earlier summary guilty plea, he acquiesced to this subsequent
prosecution related to the same incident and he could not later invoke the
compulsory joinder rule in an effort to bar that prosecution. The
Commonwealth notes that in this respect, the present matter is
distinguishable from Perfetto as in that case the defendant filed his motion
to dismiss after the preliminary hearing and prior to trial on the DUI charges.
207 A.3d at 815.
We first address the Commonwealth’s argument that Appellant has
waived his objection to the DUI prosecution based upon his failure to raise the
issue prior to his Municipal Court trial. Generally, to preserve an issue for
appellate review, a party must “object to errors, improprieties or irregularities
at the earliest possible stage of the adjudicatory process,” and the failure to
raise the issue at the appropriate stage will result in waiver. In the Interest
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of L.V., 209 A.3d 399, 418 (Pa. Super. 2019) (citation omitted); see also
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”). It is well-established that “claims
going to the compulsory joinder rule are waivable.” Commonwealth v.
Dawson, 87 A.3d 825, 827 (Pa. Super. 2014). Courts of this Commonwealth
have found waiver of an argument premised on the compulsory joinder rule
in such circumstances as where the defendant filed a motion to sever the
charges, the defendant opposed a motion to consolidate charges, and the
defendant opposed the amendment of the information to include additional
charges.6
However, as our Supreme Court stated in Commonwealth v. Failor,
770 A.2d 310 (Pa. 2001), a finding of waiver is disfavored “unless the
defendant has taken some sort of affirmative action to separate the
prosecutions pending against him.” Id. at 314. The Court further explained
that the rule restricting waiver of compulsory joinder claims to cases where
the defendant took affirmative action rests upon “the sound policies behind
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6 See Commonwealth v. Tarver, 357 A.2d 539, 543 (Pa. 1976) (defendant
who pleaded guilty to one charge and demanded a separate jury trial on
another charge could not invoke the compulsory joinder rule to challenge
separate prosecutions); Dawson, 87 A.3d at 829 (defendant who successfully
sought the severance of certain charges that proceeded to a jury trial was
barred from later claiming under the compulsory joinder rule that all charges
should have been brought at one trial); Commonwealth v. Cicconi, 653
A.2d 40, 43-44 (Pa. Super 1995) (defendant who opposed amendment of
information to include burglary charge and then pleaded guilty to burglary
when filed at a separate docket number could not invoke the compulsory
joinder rule in an attempt to bar trial on the initial charges).
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Section 110,” including protecting defendants from piecemeal litigation and
the conservation of judicial resources. Id. Therefore, “the burden to
consolidate charges rests solely with the prosecution,” and a defendant’s
acquiescence to consolidation does not lead by itself to waiver. Id. at 314-
15. “Mere silence by the defendant is insufficient to find that a defendant has
affirmatively acted to block consolidation and therefore, waived a claim under
Section 110.” Id. at 315.
In Failor, the Court addressed two consolidated appeals arising out of
Cumberland County where the two defendants, Failor and Blosser, were each
cited by officers for speeding and driving under a suspended license (“DUS”).
Id. at 312. Failor and Blosser each pleaded guilty to speeding before a
magisterial district judge and subsequently appeared before the same district
judge in a separate proceeding where they were convicted of DUS. Id. Failor
and Blosser then both sought trial de novo of their DUS convictions in the
Court of Common Pleas of Cumberland County and filed motions to dismiss
the DUS charges in that court based upon Section 110. Id. at 312 & n.4; see
also Commonwealth v. Failor, 734 A.2d 400, 401 (Pa. Super. 1999), rev’d
770 A.2d 310 (Pa. 2001) (stating that both Failor and Blosser appealed their
DUS convictions to the Court of Common Pleas seeking a trial de novo of those
charges). The Court of Common Pleas found that Failor and Blosser had
waived their right to challenge their prosecution on the DUS charges as they
had not raised the issue at the time of the resolution of the speeding citations.
Failor, 770 A.2d at 312-13.
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On appeal, the Supreme Court concluded that Failor and Blosser had not
waived their compulsory joinder objection as they had not taken any
affirmative action to either separate the proceedings or to oppose
consolidation. Id. at 315. Rather, as the Court observed, it was the
Commonwealth which had decided to separately prosecute the speeding and
DUS charges. Id. The “[m]ere silence” of Failor and Blosser in response to
the successive trials did not lead to the waiver of their right to bring a
challenge under Section 110 in the Court of Common Pleas. Id.
The present case is nearly identical to Failor. Like Failor, Appellant’s
summary traffic and DUI charges were resolved in separate trials,7 and
Appellant raised his Section 110 objection only after requesting a trial de novo
in the Court of Common Pleas on his second conviction. As in Failor, Appellant
did not take any “affirmative action” to either block the consolidation of the
summary traffic and DUI charges in one proceeding or to separate the cases
into individual trials. Id. at 314. At most, Appellant could be said to have
acquiesced to the successive trials, but Appellant’s “[m]ere silence” in the face
of serial prosecutions did not merit waiver of his compulsory joinder claim.
Id. at 315; see also Commonwealth v. Menhart, 796 A.2d 990, 992 (Pa.
Super. 2002) (nothing that waiver may not be found based on an “appellant’s
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7 While the prosecutions here occurred in Philadelphia Municipal Court and
before magistrate district judges in Failor, the Commonwealth is under the
same requirement to consolidate charges in both forums. See
Commonwealth v. Johnson, 247 A.3d 981, 987 n.9 (Pa. 2021).
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silent acquiescence”). Moreover, Failor establishes that Appellant did not
waive his compulsory joinder challenge by waiting to raise the objection to the
second prosecution until after he filed a request for a trial de novo in the Court
of Common Pleas. Accordingly, we reject the Commonwealth’s claim that
Appellant has waived his appellate argument based upon the compulsory
joinder rule.
Turning to the merits of this appeal, we agree with Appellant that the
compulsory joinder rule barred his prosecution on DUI charges. Section 110
of the Crimes Code provides as follows:
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
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). The compulsory joinder rule set forth in Section 110
“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;
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(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).
In Perfetto, Perfetto was charged with DUI and issued a summary
citation for operating his vehicle without lights after a traffic stop in
Philadelphia. Id. at 815. Perfetto was found guilty of the traffic offense
following a trial in absentia in the Traffic Division of Municipal Court. Id. After
his DUI charges were held over for trial, Perfetto filed a motion to dismiss
invoking the compulsory joinder rule. Id. The Court of Common Pleas
granted the motion to dismiss, a decision which a divided en banc panel of
this Court reversed. Id. at 815-19; see also Commonwealth v. Perfetto,
169 A.3d 1114 (Pa. Super. 2017) (en banc), reversed, 207 A.3d 812 (Pa.
2019).
On appeal, the Supreme Court concluded that a “straightforward
application of the plain language [of Section 110] makes clear that the
Commonwealth is precluded from prosecuting [Perfetto] for his DUI charges.”
Id. at 822. The Court determined that (1) Perfetto’s former prosecution for
the offense of operating his vehicle without lights resulted in a conviction; (2)
his current prosecution resulted from the same criminal traffic stop; (3) the
Philadelphia District Attorney’s Office was aware of the DUI charges at the
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time of the summary traffic trial; and (4) Perfetto’s DUI offenses occurred in
the same judicial district as the former prosecution, namely the First Judicial
District, which encompasses the City of Philadelphia. Id. at 821-22.8
Perfetto is factually indistinguishable from the present case and our
Supreme Court’s decision controls our result here. As in Perfetto, Appellant
was charged with DUI and a summary traffic offense following a traffic stop in
Philadelphia, he was first convicted of the summary traffic offense in the Traffic
Division of Municipal Court, and then Appellant faced a second DUI prosecution
in the General Division of Municipal Court related to the same incident. The
instant case likewise meets all four criteria for application of the compulsory
joinder rule: (1) Appellant’s initial prosecution in the Traffic Division resulted
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8 In Perfetto, the Court also considered the exception to the compulsory
joinder rule set forth in Section 112(1) of the Crimes Code, which provides
that a former “prosecution is not a bar [to a subsequent prosecution] within
the meaning of” Section 110 where “[t]he former prosecution was before a
court which lacked jurisdiction over the defendant or the offense.” 18 Pa.C.S.
§ 112(1). The Court concluded that Section 112(1) was inapplicable where
the General Division of the Municipal Court had jurisdiction to address all of
the charges in one proceeding. Perfetto, 207 A.3d at 822-23. The Supreme
Court addressed the Section 112(1) exception again in Johnson, holding that
“the offense” as used in that statute “means the offense that was the subject
of an initial prosecution resulting in conviction or acquittal.” 247 A.3d at 987.
The Court therefore concluded that the Commonwealth was barred from
prosecuting the defendant on a possession with intent to deliver a controlled
substance charge in Common Pleas Court after a summary trial in the Traffic
Division of Municipal Court because the Traffic Division had jurisdiction over
both the defendant and the summary traffic offense. Id. at 986-87. Here,
we observe that the Traffic Division of Municipal Court had jurisdiction over
Appellant and the summary traffic offense of which he was convicted, and
therefore Appellant’s subsequent DUI prosecution did not fall within the
Section 112(1) exception to the compulsory joinder rule.
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in his conviction of disregarding a traffic device; (2) Appellant’s DUI case is
based upon the same November 28, 2013 traffic stop as the first case; (3)
both cases were brought by the Philadelphia District Attorney’s Office and
therefore the prosecutor was aware of the DUI charges at the time of the
summary traffic trial; and (4) both offenses occurred within the City of
Philadelphia, i.e. the First Judicial District of Pennsylvania.
Accordingly, we conclude that the compulsory joinder rule set forth in
Section 110 of the Crimes Code bars Appellant’s prosecution on DUI charges.
We reverse the April 13, 2015 order of the Court of Common Pleas denying
Appellant’s motion to dismiss and remand to the Court of Common Pleas to
enter an order dismissing the DUI charges.
Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2021
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