Opinion
J. S51034/18 No. 2533 EDA 2017
08-27-2018
COMMONWEALTH OF PENNSYLVANIA, Appellant v. MARQUISE L. DAVIS
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order, July 18, 2017, in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004903-2016 BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
The Commonwealth appeals from the July 18, 2017 order entered in the Court of Common Pleas of Philadelphia County dismissing misdemeanor and felony charges against appellee Marquise Davis based on a violation of Pennsylvania's compulsory joinder rule, 18 Pa.C.S.A. § 110. In light of this court's recent en banc decision in Commonwealth v. Perfetto , 169 A.3d 1114 (Pa.Super. 2017) ( en banc ), appeal granted , 182 A.3d 435 (Pa. 2018), we reverse and remand.
The trial court set forth the following:
The undisputed history of the case and the rule were suitably summarized by defense counsel in the motion prompting that dismissal.
1. On March 29, 2016, [appellee] was traveling westbound on the 3200 block of Tasker Street when officers Czarnecki
and Sima pulled over the vehicle for an illegal window, in violation of PA MVC 45[24]-E(1).
2. During the traffic stop, the officers recovered one bag of alleged marijuana and one small .22 caliber revolver.
3. [Appellee] was arrested and he was subsequently [issued] a traffic citation, #TT0005095, for the illegal tint.[Footnote 1]
4. On May 31, 2016, [appellee] was found guilty of the citation by Philadelphia's Municipal Court's Traffic Division.
5. Title 18 Pa.C.S. § 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.
[Footnote 1 omitted]
In addition to the traffic citation, [appellee] was charged with (1) possession of a firearm with the manufacturer number altered, (2) without a license and (3) in public, (4) possession of an instrument of crime, (5) the alteration or obliteration of a mark of identification on a firearm and (6) possession of marijuana.[Footnote 1] Charges (1), (2) and (5) are felonies and the others misdemeanors. He claimed that, since he was convicted of the summary vehicle code violation, and he was observed committing that violation at the same time he was found to be in illegal possession of a weapon and a drug, the subsection of the rule paraphrased, § 110(1)(ii), barred prosecution of those criminal charges. At the conclusion of a hearing on June 20, 2017, the court agreed with him and granted the motion. On June 27th, the court vacated that order pending review of the Commonwealth's Motion for Reconsideration. At the conclusion of a hearing on
July 18th, at which the discussion was limited to whether the court had received the submissions of the parties, the court held the matter under advisement. It formally denied reconsideration and dismissed the charges on August 7th, and this timely appeal was filed the following day.
Trial court opinion, 11/29/17 at 1-2 (italicized text and some brackets in original).[Footnote 1] 18 Pa. C.S. §§ 6110.2(a), 6106(a)(1), 6108, 907(a) & 6117(a) & 35 Pa.C.S. § 780-113(a)(31).
The record reflects that the Commonwealth filed a timely notice of appeal to this court and, simultaneously and without being ordered to, a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Subsequently, the trial court filed a Rule 1925(a) opinion.
The Commonwealth raises the following issue for our review: "Did the lower court err in dismissing felony and misdemeanor charges with prejudice on the ground that [appellee] had been cited and prosecuted for a summary traffic violation arising from the same criminal episode?" (Commonwealth's brief at 4.)
Our standard of review of issues concerning the compulsory joinder rule, 18 Pa.C.S.A. 110, is plenary. Commonwealth v. Reid , 35 A.3d 773, 776 (Pa.Super. 2012). The compulsory joinder rule bars a subsequent prosecution if each of the following is met:
(1) the former prosecution resulted in an acquittal or conviction; (2) the current prosecution was based on the same criminal conduct or arose from the same criminal episode; (3) the prosecutor in the subsequent trial was aware of the charges before the first trial; and (4) all charges [are] within the same judicial district as the former prosecution.Reid , 77 A.3d at 582 (citation omitted; brackets in original).
Here, no dispute exists that appellee's prosecution on the summary traffic offense resulted in a conviction, that the prosecution on the misdemeanors and felonies would be based on the same criminal conduct or arose from the same criminal episode, and that the Commonwealth knew of the misdemeanor and felony charges before the summary trial. In light of this court's decision in Perfetto , however, appellee fails to satisfy the fourth Reid test prong.
In Perfetto , this court held that where a defendant's summary traffic offense was to be heard solely in the Philadelphia Municipal Court Traffic Division pursuant to its jurisdiction in accordance with Pa.C.S.A. § 1302(a.1)(1)(i), a prior disposition of that summary traffic offense in traffic court does not bar a later prosecution of other criminal charges that arose in the same judicial district and at the same time as the summary traffic offense because Section 1302 carves out an exception to compulsory joinder and directs that the summary traffic offense is within the exclusive jurisdiction of the traffic court. Consequently, appellee's subsequent prosecution on the misdemeanor and felony charges was not barred by compulsory joinder.
At the time that the trial court granted appellee's motion to dismiss, this court had yet to decide Perfetto. At oral argument on appellee's motion, the Commonwealth informed the trial court that oral argument in Perfetto had taken place. (Trial court opinion, 11/29/17 at 10.) As noted by the trial court, 12 days after the Commonwealth filed its notice of appeal in this case, this court filed its opinion in Perfetto. ( Id .)
In its Rule1925(a) opinion, the trial court noted that our supreme court granted discretionary review in Perfetto. ( Id .) The trial court also acknowledged the holding in Perfetto , but it nevertheless "respectfully submit[ted] that, in view of the fact that the legislature specifically removed the word 'jurisdiction' from the [compulsory joinder] statute and replaced it with 'judicial district', bodes more favorably for the [ Perfetto ] dissenters' interpretation" to support its conclusion that its order dismissing the charges should be affirmed. ( Id. at 11, 17.) Until our supreme court overrules our decision in Perfetto , however, it is the law of this Commonwealth, and the trial court is not free to disregard the majority holding because it agrees with the dissent. See Commonwealth v. Forbes , 867 A.2d 1268, 1279 (Pa.Super. 2005) (reiterating that "[i]t is well settled . . . that until the Supreme Court overrules a decision of this Court, our decision is the law of the Commonwealth" (citation omitted)).
Order reversed. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/27/18