Commonwealth v. Dawson

87 A.3d 825, 2014 Pa. Super. 51, 2014 WL 930825, 2014 Pa. Super. LEXIS 121
CourtSuperior Court of Pennsylvania
DecidedMarch 11, 2014
StatusPublished
Cited by15 cases

This text of 87 A.3d 825 (Commonwealth v. Dawson) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dawson, 87 A.3d 825, 2014 Pa. Super. 51, 2014 WL 930825, 2014 Pa. Super. LEXIS 121 (Pa. Ct. App. 2014).

Opinion

OPINION BY

MUNDY, J.:

Appellant, Derrick D. Dawson, appeals from the May 9, 2013 order denying his motion to dismiss based upon alleged violations of the compulsory joinder rule and the Double Jeopardy Clauses of the Federal and Pennsylvania Constitutions.1 After careful review, we affirm.

The trial court summarized the relevant facts and procedural history of this case as follows.

[Appellant] was charged at criminal actions numbers 418-417 of 2012, 420, 421, and 423 of 2012 with Possession with Intent to Deliver, Criminal Use of Communication Facility, and Possession of a Controlled Substance. At 2038-2011, 2042-2011, and 2044-2011, [Appellant] was charged with Possession with Intent to Deliver, Criminal Use of a Communication Facility, and Criminal Conspiracy. He was tried by jury on those [three] charges and convicted of all charges except [two] count[s] of criminal conspiracy on April 11,2012.
Originally, all 11 cases recited above had been joined by the Commonwealth via notice of joinder filed at all CR numbers. Previous counsel for [Appellant] asked for severance of CR 2038, 2042, and 2044 from the remaining charges, claiming prejudice to [Appellant] if the matters were tried together. The Commonwealth opposed the severance. The [trial c]ourt ... granted the severance and those three cases went to [a] jury trial. The remaining eight cases were placed back on the jury trial list and are now the cases at issue.

Trial Court Opinion, 08/01/2013, at 2.

On November 20, 2012, Appellant filed a motion to dismiss the remaining charges based upon alleged violation of the compulsory joinder rule as well as the Double Jeopardy Clauses of the Federal and Pennsylvania Constitutions.3 The trial court conducted a hearing on April 12, 2013 on said motion. On May 9, 2013, the trial court entered an order with an accompanying opinion denying Appellant’s motion. On June 6, 2013, Appellant filed a timely notice of appeal.

On appeal, Appellant raises one issue for our consideration.

I. Whether the [t]rial [c]ourt erred [in] denying [Appellant’s [m]otion to [dismiss for a violation of 18 Pa. C.S.A. § 110 and the Double Jeopardy [C]lause[s] of the Pennsylvania Constitution and [the] United States Constitution?

Appellant’s Brief at 9.

As Appellant’s issue presents solely a question of law, our standard of review is [827]*827de novo and our scope of review is plenary. Commonwealth v. Fithian, 599 Pa. 180, 961 A.2d 66, 71 n. 4 (2008). The compulsory joinder rule, codified at Section 110, provides in relevant part, as follows.

§ 110. When prosecution barred by former prosecution for different offense
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 as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
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(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[J

18 Pa.C.S.A. § 110(1)(ii).

Here, Appellant argues that the Commonwealth was required to go to trial on all 11 Common Pleas docket numbers at once. More specifically, Appellant avers the Commonwealth should not be permitted to go to trial on the eight 2012 Common Pleas docket numbers when it has already achieved a conviction for the three 2011 docket numbers that arose from the same alleged criminal activity. Appellant’s Brief at 20. The trial court rejected this argument, concluding that Appellant had essentially waived this argument by previously seeking and obtaining severance of the 2011 charges.

In the instant cases, [Appellant] had previously asked [the trial] court to sever the three cases that went to trial from the eight remaining cases, alleging prejudice to him if all eleven cases were tried together. The [trial] court accepted his argument and granted his motion to sever. The three [2011] cases proceeded to jury trial. The remaining eight [2012] were placed back on the trial list. The fact that the cases were not joined together was based on [Appellant’s actions in asking the [trial] court to sever them because of alleged prejudice to him, regardless of whether they were based on the same criminal act or transaction.
Here, concerning the [m]otion to [dismiss, the [trial c]ourt accepts the Commonwealth’s argument that [Appellant] cannot ask the [trial e]ourt to sever joined cases because of alleged prejudice and then later complain that all of the cases were based on the same criminal act or transaction and should have been joined.

Trial Court Opinion, 8/1/13, at 3-4.

This Court has held that claims going to the compulsory joinder rule are waiveable. See Commonwealth v. Simmer, 814 A.2d 696, 699 (Pa.Super.2002) (stating, “a defendant’s voluntary entry into an AKD program, with respect to a charge of DUI, constitutes a waiver of the defendant’s right to later assert section 110 as a bar to prosecution of the DUI offense, upon the defendant’s removal from the ARD program[]”); Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636, 639 (1983) (stating, “an accused who is aware of all charges filed against him in separate townships but based on the same criminal episode, and who fails to move for the consolidation of these [828]*828charges, waives his section 110 statutory right to have all of these charges brought in a single prosecution! ]”). Additionally, claims based on the Double Jeopardy clauses are waiveable in some circumstances. See Commonwealth v. Robinson, 931 A.2d 15, 21 n. 5 (Pa.Super.2007) (en banc) (stating, “even issues of constitutional dimensions can be waived[ ]”) (citation omitted); but cf. Commonwealth v. Minnis, 83 A.3d 1047, 1053 (Pa.Super.2014) (en banc) (concluding, “a defendant who moves for a new trial [does not] necessarily waive[] any argument that double jeopardy bars a second trial[]”).

In Commonwealth v. Cicconi, 439 Pa.Super. 81, 653 A.2d 40 (1995), the defendant was charged with rape, involuntary deviant sexual intercourse, aggravated indecent assault and indecent assault. Id. at 41. During trial, Appellant pled nolo contendere

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Cite This Page — Counsel Stack

Bluebook (online)
87 A.3d 825, 2014 Pa. Super. 51, 2014 WL 930825, 2014 Pa. Super. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dawson-pasuperct-2014.