Com. v. Powell, J.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellant :

: :

v. :

: :

JAMES POWELL : No. 2460 EDA 2015

Appeal from the Order July 31, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0048966-2012

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 16, 2021

The Commonwealth appeals from the order, entered in the Philadelphia

County Court of Common Pleas, granting Appellee James Powell’s petition to

file an interlocutory appeal and dismissing his misdemeanor driving under the

influence (“DUI”) charge pursuant to 18 Pa.C.S. § 110. Our Supreme Court

has twice remanded this case for reconsideration of our prior decisions

reversing the court’s order in light of new case law interpreting section 110

and related provisions. In the instant remand, we have been instructed to

reconsider the propriety of the trial court’s order dismissing Appellee’s DUI

charge given our Supreme Court’s decision in Commonwealth v. Johnson,

247 A.3d 981 (Pa. 2021) (“Johnson II”). For the reasons set forth herein,

____________________________________________

* Former Justice specially assigned to the Superior Court.

we conclude that Johnson II is distinguishable, and we again reverse and

remand for further proceedings.

The trial court summarized the facts and procedural history of this case,

as follows:

[O]n December 1, 2012, Appellee … was arrested in Philadelphia after officers observed him disregard a red light, and observed that he had bloodshot eyes, a relaxed demeanor, and that there was a moderate odor of marijuana coming from the automobile. [Appellee] was arrested and subsequently charged with the misdemeanor offense of [DUI], and summary offenses for traffic violations, including: Disregarding a Red Light, Driving Without a License, and Driving a Vehicle with Registration Suspended. On February 14, 2013, [Appellee] was found guilty in [abstentia of] all three traffic code violations in the Philadelphia Traffic Court; the DUI charge was not adjudicated on that date. On June 12, 2015, [Appellee] moved to dismiss the DUI charge in Municipal Court[,] … arguing that the Commonwealth was barred from prosecuting him under the compulsory joinder provisions of 18 Pa.C.S. § 110[(1)](ii) because he was previously prosecuted for[,] and convicted of[,] traffic violations arising from the same criminal episode. On that date, [the Municipal Court] denied [Appellee’s] motion. [Appellee] then petitioned for an interlocutory appeal to the [Philadelphia] Court of Common Pleas. On July 31, 2015, the [court] granted [Appellee’s] petition and dismissed the charges pursuant to [section] 110.

Trial Court Opinion, 1/28/16, at 1-2 (footnote and citations to the record

omitted).

The Commonwealth filed a timely notice of appeal and complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court filed its Rule 1925(a) opinion on

January 28, 2016. On September 22, 2017, this Court filed a memorandum

decision reversing the trial court’s order and remanding for further

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proceedings. See Commonwealth v. Powell, 178 A.3d 185 (Pa. Super. filed

Sept. 22, 2017) (unpublished memorandum) (“Powell I”) (relying on

Commonwealth v. Perfetto, 169 A.3d 1114 (Pa. Super. 2017) (en banc)

(“Perfetto I”) (holding that the defendant’s summary traffic offense could

only be tried in the Traffic Division of the Philadelphia Municipal Court and,

thus, the defendant’s subsequent prosecution for DUI did not violate the

compulsory joinder rule)).

Appellee filed a petition for permission to appeal with our Supreme

Court, which was granted. On June 27, 2019, the Court vacated our decision

and remanded for reconsideration of this case in light of Commonwealth v.

Perfetto, 207 A.3d 812 (Pa. 2019) (“Perfetto II”). There,

the Supreme Court reversed our Court’s en banc decision [in Perfetto I], 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 [II], 207 A.3d at 823. Thus, the Court concluded that “a straightforward application of the plain language of [s]ubsection 110(1)(ii) of the compulsory joinder statute to the circumstances presented in this appeal makes clear that the Commonwealth is precluded from prosecuting [Perfetto] for his DUI charges.” Id. at 822 (emphasis added).

Commonwealth v. Atkinson, --- A.3d ---, 2021 PA Super 208, at *3 n.12

(Pa. Super. 2021) (en banc) (“Atkinson II”) (emphasis omitted).

On remand from Powell I, the Commonwealth raised one issue for our

review:

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I. Did the lower court err when it dismissed felony and misdemeanor charges pursuant to 18 Pa.C.S. § 110 based on the prior adjudication of summary traffic offenses in Philadelphia Traffic Court, where an exception under 18 Pa.C.S. § 112 applies?

Commonwealth v. Powell, 251 A.3d 1229, *2 (Pa. Super. filed March 12,

2021) (unpublished memorandum) (“Powell II”).

In Powell II, filed on March 12, 2021, this panel again reversed and

remanded Appellee’s case. In doing so, we relied on this Court’s en banc

decision in Commonwealth v. Atkinson, 245 A.3d 1140 (Pa. Super. 2021)

(en banc) (“Atkinson I”). There,

[o]n 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.

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 [II], 207 A.3d at 816 n.1.

Atkinson I, 245 A.3d at 1141.

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The Commonwealth appealed, and the en banc panel in Atkinson I

affirmed the trial court’s denial of Atkinson’s motion to dismiss, distinguishing

her case from Perfetto II:

Unlike Perfetto [II], 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 [II], 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).

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).

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, the “Commonwealth has not placed [Atkinson] ‘in jeopardy of life or limb’”6 regarding her DUI offense, … 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

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holding in Perfetto [II] or the compulsory joinder rule and the trial court properly denied Atkinson’s motion to dismiss.

6 See Pa. Const. Art. I, § 10 (“No person shall, for the same

offense, be twice put in jeopardy of life or limb.”).

Atkinson I, 245 A.3d at 1142-43 (emphasis and one citation omitted).

Relying on Atkinson I, we held in Powell II that “Appellee’s 2013

conviction for summary traffic offenses in the then-extant Philadelphia Traffic

Court, which had exclusive jurisdiction over those offenses, does not bar his

subsequent prosecution for DUI.” Powell II, 251 A.3d at *4. Accordingly,

we once again reversed the trial court’s order dismissing Appellee’s DUI

charge and remanded for further proceedings. Id.

Appellee again petitioned for allowance of appeal with our Supreme

Court. On September 28, 2021, our Supreme Court vacated our decision and

remanded for a second time, directing us to reconsider this case in light of

Johnson II, which reversed this Court’s decision in Commonwealth v.

Johnson, 221 A.3d 217, 221 (Pa. Super. 2019) (“Johnson I”), discussed

infra. Notably, our Supreme Court also vacated and remanded Atkinson I

for reconsideration in light of Johnson II.

In Johnson II,

the defendant was charged in 2015 with the summary offense of driving with a suspended license, as well as possession with the intent to deliver heroin (PWID) and knowing and intentional possession of heroin (K & I). [Johnson II, 247 A.3d] at 982. Johnson was found guilty, in absentia, of the summary traffic offense in the Traffic Division of the Municipal Court of Philadelphia. Id. Subsequent to that determination, Johnson filed a motion to dismiss contending that, pursuant to the compulsory joinder rule, the prosecution was required to try all of the offenses simultaneously. Id.

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On interlocutory appeal [in Johnson I], the Commonwealth conceded that the K & I offense fell within the Municipal Court’s jurisdiction, and, thus, it was foreclosed from pursuing that charge based upon the holding of Perfetto [II]. Id. However, the Commonwealth contended that the PWID charge remained viable for prosecution because the Municipal Court lacked jurisdiction over that offense and, under [18 Pa.C.S. §] 112(1), it was not compelled to join that offense with the summary offense. Id. at 982-83.

Atkinson II, 2021 PA Super 208, at *6.

Section 112(1) provides an exception to the compulsory joinder rule,

stating that 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 Johnson I,

the Commonwealth argued that “the offense” language in section 112(1) “concerns the crime or crimes for which the government is seeking subsequent convictions.” [Johnson II, 247 A.3d] at 983. The Superior Court agreed with the Commonwealth, holding that for purposes of section 112(1), “the offense” referred to Johnson’s PWID charge…. Id. at 989. See … Johnson [I, supra].

Atkinson II, 2021 PA Super 208, at *6. Accordingly, the Johnson I panel

concluded that,

[b]ecause the maximum possible sentence for the charge of possession of heroin with intent to deliver exceeds the jurisdictional limits of the Philadelphia Municipal Court, Johnson’s former prosecution for driving with a suspended license occurred “before a court which lacked jurisdiction over the … offense” of possession of heroin with intent to deliver. 18 Pa.C.S.[] § 112(1). Accordingly, the court of common pleas may properly assert its separate, original jurisdiction over that charge under [s]ection 112.

Johnson I, 221 A.3d at 221.

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Johnson appealed to our Supreme Court, which reversed our holding in

Johnson I. The Johnson II Court held that the Commonwealth must

“generally assure that known offenses are consolidated at the common pleas

level, when they arise out of a single criminal episode and occur in the same

judicial district.” Johnson II, 247 A.3d at 987.

The Johnson [II] Court noted that although the defendant’s greater offense (PWID) could not be tried in the first court where Johnson’s summary was tried (the Traffic Division of the Municipal Court of Philadelphia), it could have been consolidated with the summary offense in the court of common pleas. Specifically, because the Municipal Court lacked jurisdiction over Johnson’s PWID offense, where that court’s jurisdiction is capped at criminal offenses punishable by imprisonment by a term of not more than five years, see 42 Pa.C.S. § 1123(a)(2), the Commonwealth could have prosecuted the charges (summary and PWID) against Johnson in a “single proceeding” within the same judicial district, in the common pleas court which had “unlimited original jurisdiction in all cases except as may otherwise be provided by law.” Pa. Const., art. V, § 5(b)).

Atkinson II, 2021 PA Super 208, at *6.

On October 19, 2021, an en banc panel of this Court filed Atkinson II.

There, we began by recognizing that “[o]ur standard of review of issues

concerning the compulsory joinder rule, 18 Pa.C.S. § 110, is plenary.” Id. at

*4 (citation omitted). We then considered the impact of Johnson II on the

facts of Atkinson’s case, ultimately holding that “the principles of compulsory

joinder, as espoused in section 110 and the holdings of Johnson [II] and

Perfetto [II], [were] inapplicable….” Id.

In reaching this decision, we stressed that the driving factor behind

applying the compulsory joinder rule in Johnson II and Perfetto II was “the

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fact that Johnson’s and Perfetto’s summary [traffic] violations could have

been joined, respectively, in the common pleas court (with the PWID charge)

and the General Division of the Municipal Court (with the DUI offenses)….”

Id. (emphasis in original; some emphasis omitted). In Atkinson II, however,

the “consolidation of Atkinson’s offenses (summary and DUI) in any

Philadelphia court was simply impossible at the time she was tried for her

[summary traffic] violation.” Id. at *7 (emphasis in original). This is because,

prior to the 2013 restructuring of the Philadelphia Municipal Court, “the Traffic

Court had exclusive jurisdiction over summary [traffic] violations and

Atkinson’s [summary traffic] offense could not be tried in either of the other

two courts—the Philadelphia Municipal Court or the Philadelphia Court of

Common Pleas.” Id. (citations omitted; emphasis in original). Consequently,

the Atkinson II panel held that Atkinson’s “case [was] not subject to

compulsory joinder for the simple fact that the charges [were] incapable of

being joined due to the jurisdictional exclusivity of the Traffic Court.” Id.

(footnote omitted). Accordingly, we affirmed the trial court’s denial of

Atkinson’s motion to dismiss her DUI charge.

Here, the facts mirror those in Atkinson II. The Commonwealth

properly prosecuted Appellee’s 2013 summary traffic charges in the

Philadelphia Traffic Court, which had exclusive jurisdiction over those crimes.

Unlike in Johnson II or Perfetto II, it was impossible at that time for the

Commonwealth to prosecute Appellee’s traffic offenses and his DUI charge

together in the court of common pleas, or in the Philadelphia Municipal Court.

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Therefore, following Atkinson II, we conclude that Johnson II and Perfetto

II are distinguishable, and the compulsory joinder rule does not apply to the

facts of this case. Accordingly, we reverse the trial court’s order dismissing

Appellee’s DUI charge and remand for further proceedings.

Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judge Olson concurs in the result.

Justice Fitzgerald did not participate in the consideration or decision of

this case.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/16/2021