Comm. v. Sydney, E.

Opinion

J-S06028-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC SYDNEY : : Appellant : No. 972 EDA 2020

Appeal from the Order Entered March 3, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007577-2018

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED APRIL 20, 2021

Appellant Eric Sydney appeals from the trial court’s order denying his

pretrial motion to dismiss the charges of possession of firearm by a person

prohibited, carrying a firearm without a license, receiving stolen property, and

carrying a firearm in public in Philadelphia,1 pursuant to the compulsory

joinder rule.2 Appellant argues that following his conviction for a summary

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 3925(a), and 6108, respectively.

2 18 Pa.C.S. § 110. “Pennsylvania law traditionally provided a criminal defendant the right to an immediate appeal from an order denying a pretrial motion to dismiss on double jeopardy grounds.” Commonwealth v. Kemick, 240 A.3d 214, 217 (Pa. Super. 2020) (citations omitted and formatting altered). “If the trial court enters an order denying the motion to dismiss on double jeopardy grounds and in doing so, makes no finding, in writing, that the motion is frivolous, then the order is a collateral order under Rule 313 and is immediately appealable.” Id. (citations omitted). J-S06028-21

traffic offense arising from the same criminal episode as the instant offenses,

the compulsory joinder rule bars the prosecution for these charges.

Specifically, Appellant contends that this Court’s decision in Commonwealth

v. Johnson, 221 A.3d 217 (Pa. Super. 2019) (Johnson I), appeal granted,

237 A.3d 962 (Pa. 2020), was wrongly decided. Because our Supreme Court

recently reversed Johnson I in Commonwealth v. Johnson, ___ A.3d ___,

23 EAP 2020, 2021 WL 1133029 (Pa. filed Mar. 25, 2021) (Johnson II), we

agree with Appellant and reverse the trial court’s order.

Because we write for the parties, we need not reiterate the factual and

procedural background of this matter. Briefly, we note that Appellant was

convicted in absentia in the Traffic Division of the Philadelphia Municipal Court

of a summary offense that arose from the same criminal episode as the above-

mentioned offenses. Appellant then filed a motion requesting that the

Philadelphia Court of Common Pleas (trial court) dismiss the instant charges

pursuant to the compulsory joinder rule. On March 3, 2020, the trial court

denied Appellant’s motion to dismiss, and this timely appeal followed.

Appellant argues that pursuant to Section 110 and Commonwealth v.

Perfetto, 207 A.3d 812 (Pa. 2019), the charges against him should have been

dismissed. Appellant’s Brief at 6-17. As noted above, Appellant claims that

-2- J-S06028-21

the trial court erred by relying on Johnson I, because Johnson I was wrongly

decided.3 Id. at 6-7.

The Commonwealth responds that Johnson I was controlling in this

matter. Commonwealth’s Brief at 4-7.

By way of background, Section 110 sets forth the compulsory joinder

rule, which prohibits a subsequent prosecution following a former prosecution

for a different offense if four elements are met: (1) the former prosecution

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; (3) the prosecutor was aware of the instant charges

before the trial on the former charges began; and (4) the instant offense

occurred within the same judicial district as the former prosecution. See

Perfetto, 207 A.3d at 821; see also 18 Pa.C.S. § 110(1)(ii). In Perfetto,

the defendant was charged with three counts of DUI and a summary traffic

offense arising out the same criminal episode. Perfetto, 207 A.3d at 815.

The Perfetto Court held that the defendant’s conviction before the

Philadelphia Municipal Court’s Traffic Division for the summary traffic offense

barred his subsequent prosecution for DUI. See id. at 822.

Subsequent to Perfetto, this Court decided Johnson I. The defendant

in Johnson I was charged with possession of heroin with intent to deliver ____________________________________________

3In his brief, Appellant requests that this panel certify his case for a Court en banc to overrule Johnson I. Appellant’s Brief at 7, 18. In light of our Supreme Court’s decision in Johnson II, Appellant’s request for consideration by a Court en banc is moot.

-3- J-S06028-21

(PWID), a felony, and possession of heroin, a misdemeanor, and a summary

traffic offense arising from the same criminal episode. See Johnson I, 221

A.3d at 218. Like in Perfetto, the defendant was convicted of the summary

traffic offense in a separate proceeding. See id. The defendant then sought

dismissal of the drug charges pursuant to Section 110. See id. This Court

distinguished Perfetto, and interpreted 18 Pa.C.S. § 112(1) as providing an

exception to the compulsory joinder rule where the former prosecution

occurred before a court that lacked jurisdiction over the offense charged in

the subsequent prosecution. Id. at 220-21. The Johnson I Court concluded

that because a misdemeanor drug charge could have been tried in the

Philadelphia Municipal Court, the compulsory joinder rule barred the

prosecution of the defendant for that offense. Id. at 221. However, because

the Philadelphia Municipal Court lacked jurisdiction over the felony PWID

charge, the Johnson I Court held that Section 112(1) permitted a subsequent

prosecution of the defendant for PWID in the Court of Common Pleas. Id.

On March 25, 2021, while this appeal was pending, the Pennsylvania

Supreme Court reversed this Court’s decision in Johnson I. See Johnson

II, 2021 WL 1133029. In Johnson II, our Supreme Court rejected Johnson

I’s interpretation of Section 112(1) and explained 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.” Id., 2021 WL 1133029 at *6. The Supreme Court

remanded the case for dismissal of the PWID charge. Id.

-4- J-S06028-21

Here, the trial court expressly relied on Johnson I and its interpretation

of Section 112(1) in denying Appellant’s motion to dismiss pursuant to Section

110. See Trial Ct. Op., 6/16/20, at 2, 4-5. Pursuant to Johnson II, we are

constrained to reverse the trial court’s order denying Appellant’s motion to

dismiss, and we remand this case to the trial court to enter an order dismissing

the charges.

Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/20/2021

-5-