Com. v. Gonder, D.

J. S71006/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DONALD RAY GONDER, : No. 104 MDA 2014
:
Appellant :
Appeal from the Order Entered January 13, 2014,
in the Court of Common Pleas of Cumberland County
Criminal Division at No. CP-21-CR-0001621-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 21, 2015
Donald Ray Gonder appeals from the order of January 13, 2014,
denying appellant’s consolidated motion to dismiss.1 After careful review,
we reverse.
According to the affidavit of probable cause, on July 3, 2012, at
10:28 p.m., Officer Robert Powers was called to investigate a reported
* Former Justice specially assigned to the Superior Court.
1
This is an interlocutory appeal as of right from the trial court’s denial of
appellant’s motion to dismiss on double jeopardy grounds and 18 Pa.C.S.A.
§ 110, the compulsory joinder rule. See Commonwealth v. Shull, 811
A.2d 1, 3 n.3 (Pa.Super. 2002), appeal denied, 818 A.2d 504 (Pa. 2003)
(“The denial of a pretrial motion to dismiss an indictment on double jeopardy
grounds is subject to appellate review unless it appears that the claim is
frivolous. A motion to dismiss on the basis of the compulsory joinder rule of
18 Pa.C.S.A. § 110 embodies the same constitutional protections underlying
the double jeopardy clause justifying interlocutory appeal of such claims”)
(citations omitted).
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assault and stolen vehicle at 7 West Lisburn Road in Upper Allen Township.
Officer Powers contacted the female victim, Briana Witmer, at that location
who related that at approximately 10:15 p.m. that night, she and appellant
had an argument and appellant slapped her in the face. (Docket #3.)
Appellant then directed the victim to exit the vehicle, a white 1991 Dodge
Dakota, owned by the victim. (Id.) Appellant left the victim on the side of
the road and drove off. (Id.) A check of appellant’s certified driver record
from PennDOT revealed that his operating license was suspended,
DUI-related. (Id.)
The trial court sets forth the procedural history of this matter as
follows:
On July 5, 2012, a criminal complaint was filed
against [appellant] for an incident that occurred on
July 3, 2012, in Upper Allen Township, Cumberland
County. In that complaint, [appellant] was charged
with violations of section 3928 of the Crimes Code,
Unauthorized Use of Automobiles and Other Vehicles,
a misdemeanor of the second degree,
section 1543(b) of the Vehicle Code, Driving While
Operating Privilege is Suspended or Revoked, a
summary offense, and section 2709 of the Crimes
Code, Harassment, a summary offense. On July 23,
2012, at a preliminary hearing, the magisterial
district judge dismissed all charges for lack of
prima facie evidence. A summary citation for
Driving While Operating Privilege is Suspended or
Revoked was subsequently filed on August 1, 2012
for the same July 3rd incident. The Unauthorized Use
of Automobiles and Harassment charges were not
re-filed at that time.
On November 5, 2012, a hearing was held
before Magisterial District Judge Knepper on the
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single count of the August 1st citation, and
[appellant] was found guilty. Judge Knepper
sentenced [appellant] to sixty days in Cumberland
County Prison and a $500 fine. On December 4,
2012, [appellant] filed a Notice of Appeal from
Summary Criminal Conviction. On April 2, 2013, at
the summary appeal hearing, the Commonwealth
moved to dismiss the citation of August 1st pursuant
to Pa.R.Crim.P. 458, explicitly stating its intention to
re-file the charge.[Footnote 18] When this Court
asked the Commonwealth if there was an agreement
as to who shall pay the costs, the Commonwealth
responded that there was not an agreement.
Defense Counsel stated that there was not an
agreement, explaining that “we are not going to pay
the costs so that they can re-file and bring
misdemeanors along with the summary, so I object
on those grounds.” We nonetheless granted the
Commonwealth’s oral motion for dismissal pursuant
to Rule 458, imposing costs on the Commonwealth.
[Footnote 18] Notes of Testimony, In Re:
Dismiss (Rule 458), April 2, 2013
(Christylee L. Peck, J.), (hereinafter,
“N.T. Summary Appeal”) at 2. The
Commonwealth incorrectly cited the rule
as Rule 485. However, the remaining
discussion, and lack of a Rule 485 in our
Rules of Criminal Procedure, made clear
that Rule 458 was intended, and the
charge against [appellant] was thus
dismissed pursuant to Rule 458.
On April 10, 2013, as outlined above, the
Commonwealth re-filed all charges contained in the
original complaint of July 5th, 2012, and [appellant]
is now challenging our denial of his motion to dismiss
those charges.
Trial court opinion, 4/17/14 at 2-4 (additional footnotes and citations to the
record omitted).
Appellant has raised the following issues for this court’s review:
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I. Whether the trial court erred in finding the
compulsory joinder rule did not bar the current
prosecution when appellant was already
convicted of a summary offense based on the
same criminal conduct, the prosecution was
aware of all charges before the first trial, and
all charges occurred within the same judicial
district?
II. Whether the trial court erred in finding that the
Commonwealth was not collaterally estopped
from pursuing additional criminal charges
against [appellant] when the issues in this
criminal proceeding are identical to those
decided in the former trial, the Commonwealth
was a party to the former proceeding, and the
Commonwealth had a full and fair opportunity
to actually litigate the issue of whether
[appellant] was driving or operating a vehicle
on July 3, 2012?
III. Did the trial court abuse its discretion when it
denied appellant’s motion to dismiss the
instant prosecution pursuant to Pennsylvania
Rule of Criminal Procedure 600 because the
Commonwealth failed to exercise due diligence
in bringing all charges against [appellant] at
the earliest possible time when all of the
witnesses and evidence necessary to prosecute
[appellant] was [sic] known and available to
the Commonwealth at the time of the initial
prosecution?
Appellant’s brief at 5 (capitalization omitted).
Section 110 requires that all known charges based
upon the same conduct or arising from the same
criminal episode be consolidated for trial unless the
court orders separate trials. 18 Pa.C.S. § 110;
Commonwealth v. Hude, 500 Pa. 482, 490, 458
A.2d 177, 181 (1983). This compulsory joinder rule
serves two distinct policy considerations. First, it
protects a defendant from the governmental
harassment of being subjected to successive trials
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for offenses stemming from the same criminal
episode. Secondly, the rule assures finality without
unduly burdening the judicial process by repetitious
litigation. See Hude, 500 Pa. at 489, 458 A.2d at
180. In Commonwealth v. Geyer, 546 Pa. 586,
592-93, 687 A.2d 815, 818 (1996), this Court
clarified that Section 110 applies to prosecutions for
summary offenses, such as the speeding and DUS
[(driving under suspension)] offenses for which
Appellants were charged. We explained that
regardless of the fact that proceedings concerning
summary offenses are generally resolved quickly,
“no defendant should be subjected to unnecessary
successive prosecutions of any kind. Further, the
interests of judicial economy are served by relieving
the court system of repetitious litigation of any
nature.” Id., 687 A.2d at 818.
Commonwealth v. Failor, 770 A.2d 310, 313 (Pa. 2001).
Under Section 110(1)(ii), the specific provision
applicable to Appellants’ cases, the Commonwealth is
prohibited from prosecuting a defendant based on its
former prosecution of the defendant if the following
four-part test is met: (1) the former prosecution
resulted in an acquittal or a conviction; (2) the
current prosecution must be based on the same
criminal conduct or have arisen from the same
criminal episode as the former prosecution; (3) the
prosecutor must have been aware of the current
charges before the commencement of the trial for
the former charges; and (4) the current charges and
the former charges must be within the jurisdiction of
a single [judicial district]. Commonwealth v.
Hockenbury, 549 Pa. 527, 533, 701 A.2d 1334,
1336 (1997); Geyer, 546 Pa. at 590, 687 A.2d at
817; Commonwealth v. Bracalielly, 540 Pa. 460,
468, 658 A.2d 755, 760 (1995).
Id.2
2
Section 110(1)(ii) was amended in 2002 to substitute “occurred within the
same judicial district as the former prosecution” for “was within the
jurisdiction of a single court.”
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In the instant case, all four prongs of Section 110(1)(ii) were satisfied
at the time appellant was convicted of DUS. As to the first prong, appellant
was found guilty of DUS following a hearing before MDJ Knepper on
November 5, 2012, and sentenced to 60 days’ imprisonment and a
$500 fine. The second prong was met because all charges arose during the
same criminal episode; namely, the July 3, 2012 incident wherein appellant
allegedly slapped the victim and took her truck without permission while
driving under a suspended license. Regarding the third prong, the
Commonwealth obviously knew about appellant’s other charges for
harassment and unauthorized use because those charges had been brought
in the original complaint and dismissed on July 23, 2012, following a
preliminary hearing. The Commonwealth could have re-filed them and
chose not to. Finally, the fourth prong of Section 110(1)(ii) is satisfied as all
charges are within the jurisdiction of a single judicial district. Since all four
prongs of Section 110(1)(ii) were clearly met when appellant was prosecuted
for harassment and unauthorized use of an automobile, the Commonwealth
should have been precluded from bringing those charges. Failor, supra;
Geyer, supra.The trial court and the Commonwealth rely on Commonwealth v.
Breitegan, 456 A.2d 1340 (Pa. 1983), and Commonwealth v. Beatty,
455 A.2d 1194 (Pa. 1983), for the proposition that Section 110 does not
apply to summary offenses. However, as the court explained in Geyer, the
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holdings in those cases were based on the prior version of
Section 110(1)(ii), which bars prosecution for a second offense where the
subsequent prosecution “was within the jurisdiction of a single court.”
Beatty and Breitegan did not hold that Section 110, as a rule, does not
apply to summary offenses.
Although a cursory reading of Beatty may appear
categorically to exclude traffic violations from
Section 110 and the compulsory joinder rule, the
premise underlying our analysis in Beatty was that
the two offenses were not within the jurisdiction of a
single court. Therefore Section 110 and the
compulsory joinder rule, although applicable, did not
preclude the subsequent prosecution.
In Breitegan, we cited Beatty for the proposition
that “the compulsory joinder rule and Section 110 do
not apply to prior summary convictions for traffic
violations under the Motor Vehicle Code.” Id. at
386, 456 A.2d at 1341. This statement, however,
examined within the context of the case, signifies
that Section 110 does not bar the prosecution of a
misdemeanor after a defendant enters a guilty plea
to summary traffic citations arising from the same
criminal episode.
We again cited Beatty in support of our
interpretation of Section 110 “as excluding traffic
violations under the Motor Vehicle Code” in
Commonwealth v. Taylor, 513 Pa. 547, 553, 522
A.2d 37, 39 (1987). The controlling consideration in
Taylor, as in Beatty and Breitegan, was that the
defendant was convicted of a summary offense
before a district justice prior to his prosecution on a
misdemeanor and/or felony charge in the court of
common pleas. We concluded in Taylor that “since
the harassment charge, as a summary offense, was
in the jurisdiction of the district justice, conviction or
a plea of guilty to that charge in a summary
proceeding did not bar the subsequent trial of the
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[misdemeanor] weapons offense.” Id. at 553, 522
A.2d at 40.
Geyer, 687 A.2d at 817. Our supreme court in Geyer distinguished the
Beatty/Breitegan line of cases on the basis that Geyer involved the
prosecution of two summary offenses, speeding and DUS, which are both
within the jurisdiction of the same district justice; i.e., “a single court.” Id.
at 817-818. However, the distinction between summary offenses and
misdemeanors/felonies is no longer valid since the legislature amended the
language in Section 110(1)(ii) to read,
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) (emphasis added).
As the trial court acknowledges, this broader language effectively
abrogates any ruling that relied on the much narrower “jurisdiction of a
single court” language present in the prior version of Section 110(1)(ii).
(Trial court opinion, 4/17/14 at 11.)3 Nevertheless, both the trial court and
the Commonwealth contend that because appellant filed an appeal, it
somehow nullified his conviction of DUS. Section 110(1) requires that the
former prosecution “resulted in an acquittal or in a conviction as defined in
3
The trial court’s opinion is unpaginated; page numbers are by our own
count.
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section 109 of this title.” Section 109(3) provides, in relevant part, “There is
a conviction if the prosecution resulted in a judgment of conviction which has
not been reversed or vacated, a verdict of guilty which has not been set
aside and which is capable of supporting a judgment, or a plea of guilty
accepted by the court.”
As stated above, appellant was convicted of DUS before MDJ Knepper
and sentenced to serve 60 days in jail and a $500 fine. Although appellant
took an appeal, his conviction was not reversed or vacated, nor has it been
set aside. It is true that an appeal from a summary conviction is “de novo,”
i.e., the trial court considers the case anew and is not bound by prior
findings of the MDJ. See Commonwealth v. Beam, 923 A.2d 414, 417
(Pa.Super. 2007), appeal denied, 952 A.2d 673 (Pa. 2008) (“‘De novo’
review entails, as the term suggests, full consideration of the case anew.
The reviewing body is in effect substituted for the prior decision maker and
redecides the case.”), quoting Rebert v. Rebert, 757 A.2d 981, 984
(Pa.Super. 2000) (citation omitted). However, there is no authority cited for
the proposition that taking an appeal from a summary conviction, which
results in the case being heard de novo in the Court of Common Pleas,
wipes out the prior conviction for Section 110 purposes.
The Commonwealth also argues that a nolle pros acts as neither an
acquittal nor a conviction and it could re-file the charges. “A
nolle prosequi is a voluntary withdrawal by the prosecuting attorney of
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proceedings on a particular bill or information, which can at anytime be
retracted to permit a revival of proceedings on the original bill or
information.” Commonwealth v. Whiting, 500 A.2d 806, 807 (Pa. 1985)
(citation omitted); Commonwealth v. Ahearn, 670 A.2d 133, 135 (Pa.
1996). See also Pa.R.Crim.P. 585(A) (“Upon motion of the attorney for the
Commonwealth, the court may, in open court, order a nolle prosequi of
one or more charges notwithstanding the objection of any person.”);
42 Pa.C.S.A. § 8932.
Here, we note that the Commonwealth moved to dismiss the case
under Pa.R.Crim.P. 458, “Dismissal In Summary Cases Upon Satisfaction or
Agreement.” This rule permits an issuing authority, i.e., a magisterial
district judge, to dismiss a summary case when the provisions of
paragraph (A) are satisfied, including that there is an agreement as to whom
shall pay costs, and satisfaction has been made to the aggrieved person.
Rule 458, Comment. Clearly, Rule 458 was inapplicable where the matter
was on appeal to the Court of Common Pleas. In addition, Rule 458
contemplates a complete dismissal, not a nolle pros with the option to
re-file later. If the Commonwealth desired to nolle pros the case, it should
have proceeded under Rule 585(A). Then the trial court could have
considered whether the Commonwealth’s reason for the request was
reasonable, and whether appellant had a valid speedy trial claim.
Commonwealth v. Goldman, 70 A.3d 874, 878 (Pa.Super. 2013), appeal
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denied, 85 A.3d 482 (Pa. 2014), citing Commonwealth v. Reinhart, 353
A.2d 848, 853 (Pa. 1976). Instead, the Commonwealth moved to dismiss
the case.
Furthermore, even if we were to consider the Commonwealth’s motion
as a request for nolle pros, the Commonwealth could not re-file the
DUS charge without running afoul of Pa.R.Crim.P. 600. The Commonwealth
has 365 days from the filing of the written complaint to commence trial.
Rule 600(A)(2)(a). Where the Commonwealth has withdrawn the original
complaint, and then filed a second complaint, it is entitled to calculate the
Rule 600 run date from the time of the second filing only where the
withdrawal and re-filing are necessitated by factors beyond its control. As
this court explained in Goldman, supra, discussing our supreme court’s
decision in Commonwealth v. Meadius, 870 A.2d 802 (Pa. 2005):
In Meadius, our Supreme Court addressed the
manner in which to calculate the Rule 600 run date if
the Commonwealth files two complaints against a
defendant. In that case, the prosecution withdrew a
criminal complaint after several continuances, then
filed a new complaint charging the defendant with
the same offenses. Meadius, 870 A.2d at 803. The
defendant argued that reinstating the charges
violated Rule 600 because the Commonwealth failed
to commence trial within one year of the filing of the
original complaint. Id. The Commonwealth argued
that the one-year period commenced when the
second complaint was filed, in which case Rule 600
was not violated. Id. at 804. Ultimately, the Court
held that the Rule 600 run date is calculated from
the second filing only in circumstances where the
withdrawal and re-filing are necessitated by factors
beyond the Commonwealth’s control, the
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Commonwealth has exercised due diligence, and the
re-filing is not an attempt to circumvent the
limitations of Rule 600. Id. at 808.
Goldman, 70 A.3d at 880 (emphasis in original).
Instantly, even if we treat the Commonwealth’s improper motion to
dismiss as a request for nolle pros, it appears that the only reason the
Commonwealth wanted to nolle pros the DUS charge was so it could re-file
along with the harassment and misdemeanor unauthorized use charges. In
fact, as discussed above, it could not file a second complaint bringing the
additional charges of harassment and unauthorized use without violating the
compulsory joinder rule, where they all originated from the same incident.
In addition, the record indicates that the Commonwealth wanted to bring the
additional charges in retaliation for appellant’s appeal of the DUS conviction.
(See notes of testimony, 11/27/13 at 26-27 (“the record indicates that the
reason that we were re-filing the charges is because we were within the
time. And if he wasn’t going to accept responsibility and plead and all that,
we are well within our legal right to do that, and that’s what the record
reflects”).) Certainly, this is not a situation where the withdrawal and
re-filing was necessitated by factors beyond the Commonwealth’s control.
Therefore, we look to the date of the original filing for Rule 600 purposes.
Meadius, supra. The original complaint was filed August 1, 2012, 443 days
before appellant filed his pre-trial motion to dismiss on October 17, 2013.
There was no excludable time during that time period. As such, the second
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complaint filed April 12, 2013, is out of time. Therefore, appellant is entitled
to dismissal of the summary DUS charge, as well as the harassment and
unauthorized use charges.
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2015
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