Com. v. Atkinson, D.

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2021 PA Super 16COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAIYCHELLE ATKINSON :
:
Appellant : No. 1562 EDA 2016
Appeal from the Order August 3, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0001158-2013
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,
J., STABILE, J., NICHOLS, J., McLAUGHLIN, J., and KING, J.
OPINION BY LAZARUS, J.: FILED: FEBRUARY 8, 2021
Daiychelle Atkinson appeals from the trial court’s order denying her
motion to dismiss1 based on the compulsory joinder principles of section 110
of the Crimes Code. 18 Pa.C.S. § 110. This matter is before us on remand
from the Supreme Court of Pennsylvania—which granted Atkinson’s petition
for allowance of appeal and vacated our prior decision2—instructing us to
consider the appeal “in light of [its] decision in Commonwealth v. Perfetto,
[207 A.3d 812 (Pa. 2019)].” After careful consideration, we affirm.
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1 We note that because “the protection of the compulsory joinder of charges
statute is in the nature of protection against double jeopardy, an order
denying a motion to invoke that statute’s protection is . . . subject to
immediate appeal.” Commonwealth v. Barber, 940 A.2d 369, 376 (Pa.
Super. 2007) (citations omitted).
2Commonwealth v. Atkinson, 178 A.3d 206 (Pa. Super. filed Sept. 29,
2017) (unpublished memorandum decision).
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On 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.
Atkinson filed an interlocutory appeal from that order to the Philadelphia
Court of Common Pleas. On October 23, 2015, the trial court affirmed the
Municipal Court’s denial of Atkinson’s motion to dismiss. On November 23,
2015, Atkinson filed a timely notice of appeal to this Court. On September
29, 2017, our Court affirmed the trial court’s order denying Atkinson’s motion
to dismiss. See supra, at n.2. On June 27, 2019, the Pennsylvania Supreme
Court granted Atkinson’s petition for allowance of appeal, vacated our
September 29, 2017 unpublished memorandum and order, and remanded the
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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, 207 A.3d at 816 n.1.
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matter to be considered in light of Perfetto, supra. On remand, a three-
judge panel of this Court again affirmed the trial court’s order denying
Atkinson’s section 110 motion. See Commonwealth v. Atkinson, 178 A.3d
206 (Pa. Super. filed Sept. 4, 2019) (unpublished memorandum decision).
However, that panel decision was later withdrawn after our Court granted en
banc reargument on November 15, 2019. The parties filed new briefs.
On reargument, Atkinson presents the following issue for our review:
“Did not the [trial] court err in denying [Atkinson]’s motion to dismiss
pursuant to 18 Pa.C.S. § 110(a)(1)(ii)[,] where [Atkinson] had previously
been convicted of offenses which arose from the same criminal episode in the
same judicial district as the offense in the instant case?” Appellant’s
Substituted Brief for Court En Banc, at 3 (italics omitted).
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 time of the commencement of the first trial and
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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) (emphasis added). 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.
In Perfetto, the defendant was cited for a summary offense and also
charged with three counts of DUI. 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. Defendant 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 defendant’s DUI charges. Id. The Commonwealth
appealed and a divided en banc panel of our Court reversed the trial court,
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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?
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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. See Commonwealth v. Perfetto, 169 A.3d 1114(Pa. Super. 2017) (en banc). The defendant filed a petition for allowance of
appeal, which our Supreme Court granted. On appeal, the Supreme Court
reversed our Court’s en banc decision, 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, 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.
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
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Perfetto, at the time Atkinson was prosecuted and found guilty of her
summary offense, neither 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, 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).
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,
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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).
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the “Commonwealth has not placed [Atkinson] ‘in jeopardy of life or limb’”6
regarding her DUI offense, Johnson, supra 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 or the compulsory joinder rule and the trial court properly denied
Atkinson’s motion to dismiss. Reid, supra.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/21
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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 charge arising from the same episode in the trial court. 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 where the summary-offense
prosecution occurred before a court that also had jurisdiction over the DUI
charge.
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