Commonwealth v. Dockery

COMMONWEALTH OF PENNSYLVANIA v. JHARON DOCKERY Appellant

J-A01028-21

No. 504 EDA 2020

SUPERIOR COURT OF PENNSYLVANIA

APRIL 7, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered January 27, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004424-2019

BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.^*

MEMORANDUM BY OLSON, J.:

Appellant, Jharon Dockery, appeals from the January 27, 2020 order denying, in part, his motion to dismiss the charge of possession of a controlled substance with the intent to deliver.¹ We affirm.

The trial court summarized the factual history as follows:

[Appellant's] arrest in this case arose from a [] stop of his vehicle by officers of the Philadelphia Police Department on March 1, 2019. During the [vehicle] stop, the [police] officers recovered crack cocaine, marijuana, and drug paraphernalia from the vehicle. Although [Appellant] fled from the area before the [police] officers could take him into custody, he was arrested 12 days later and charged with [the] felony [offense of possession with the intent to deliver (cocaine and marijuana)] and [the] three [afore-mentioned] misdemeanor drug [offenses]. See Docket, CP-51-CR-0004424-2019.

The [police] officers who [] stopped [Appellant's vehicle] also [] issued a traffic citation to him for operating a vehicle without headlights [in violation of] 75 Pa.C.S.[A.] § 4303(a), a charge that was docketed separately from the instant case. See Traffic Docket, Citation I8S0485763 [(]attached as "Exhibit A" to [Appellant's] Motion to Dismiss[)]. On May 3, 2019, [Appellant] was found guilty in absentia for the traffic offense in the Traffic Division of the Philadelphia Municipal Court.

On January 22, 2020, [Appellant] moved to dismiss the four drug charges in this case, claiming that the Commonwealth had been required to try those charges simultaneously with the traffic charge. Given that he had already been tried and convicted for the traffic offense in the [Traffic Division of the] Philadelphia Municipal Court, [Appellant] argued that further prosecution of the drug charges would violate the protection from subsequent prosecutions afforded to him by Pennsylvania's compulsory joinder statute, 18 Pa.C.S.[A.] § 110. In his motion[ to dismiss the four drug charges, Appellant] acknowledged that dismissal of the felony [possession with the intent to deliver] charge would be contrary to the holding in Commonwealth v. Johnson, 221 A.3d 217 (Pa. Super. 2019), [appeal granted, 237 A.3d 962 (Pa. 2020),] but contended that the holding in Johnson was erroneous.

On January 27, 2020, [the trial c]ourt granted[, in part, Appellant's] dismissal motion as to the three misdemeanor [drug] charges but denied [the dismissal motion, in part,] as to the felony [possession with the intent to deliver] charge.[FN2]

[FN2] At the hearing on [Appellant's] dismissal motion, the Commonwealth conceded that dismissal of the three misdemeanor drug charges was appropriate in light of []Johnson, [supra,], and Commonwealth v. Perfetto, 207 A.3d 812 (Pa. 2019).

Trial Court Opinion, 4/28/20, at 2-3 (some record citations omitted). This appeal followed.²

Appellant raises the following issue for our review:

Did [] the [trial] court err in denying Appellant's motion to dismiss pursuant to 18 Pa.C.S.[A. § 110(1)(ii)] where Appellant had previously been convicted of [a traffic offense] which arose from the same criminal episode in the same judicial district as the [possession with intent to deliver] offense in the instant case?

Appellant's Brief at 3.

Preliminarily, we note that although the trial court failed to adhere to the requirements of Pennsylvania Rule of Criminal Procedure 587(B),³ whichpertains to motions for dismissal on grounds of double jeopardy, "an order denying a double jeopardy motion, that makes no finding that the motion is frivolous, is a collateral order"⁴ under Pennsylvania Rule of AppellateProcedure 313 and, therefore, is immediately appealable. Commonwealth v. Gross, 232 A.3d 819, 832-833 (Pa. Super. 2020) (en banc), appeal denied, 242 A.3d 307 (Pa. 2020); see also Pa.R.A.P. 313(a) (stating, "[a]n appeal may be taken as of right from a collateral order of a trial court"). Therefore, this Court has appellate jurisdiction over the trial court's collateral order denying, in part, Appellant's double jeopardy motion. Gross, 232 A.2d at 833 n.1.

Appellant's challenge to the trial court's denial, in part, of his double jeopardy motion presents a pure question of law because the relevant facts of the case are undisputed. Consequently, our standard of review is de novo, as with all questions of law, and our scope of review is plenary. Perfetto, 207 A.3d at 821.

Section 110 of the Pennsylvania Crimes Code, also known as the compulsory joinder statute, states, in pertinent part,

§ 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:

. . .

(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to theappropriate 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[.]

18 Pa.C.S.A. § 110(1)(ii).

Subsection 110(1)(ii) of the compulsory joinder statute clearly and unambiguously contains four primary elements, which, if met, preclude a prosecution due to a former prosecution for a different offense:

(1) the former prosecution must have 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 commencement of the trial on the former charges; and

(4) the current offense occurred within the same judicial district as the former prosecution.

Perfetto, 207 A.3d at 821 (citation omitted). Section 112 of the Crimes Code operates as an exception to Section 110, however, permitting subsequent prosecution of an offense when the "former prosecution was before a court which lacked jurisdiction over the defendant or the offense." 18 Pa.C.S.A. § 112(1). See Commonwealth v. Atkinson, ___ A.3d ___, 2021 WL 419172, *2 (Pa. Super. 2/28/21) (en banc).

Here, Appellant argues that he satisfied the four-prong test for application of Section 110(1)(ii), as set forth in Perfetto, and, therefore, his possession with intent to deliver charge should have been dismissed on doublejeopardy grounds. Appellant's Brief at 9. Appellant concedes that the circumstances in the instant case are indistinguishable from the facts presented in Johnson, where this Court held that pursuant to Rule 112, the subsequent prosecution of the defendant for a possession with intent to deliver (heroin) charge before the Court of Common Pleas of Philadelphia County did not violate the defendant's rights against double jeopardy because the Philadelphia Municipal Court lacked subject-matter jurisdiction to adjudicate the matter since the offense was punishable by a maximum sentence of greater than 5 years' incarceration.⁵ Id.; see also Johnson, 221 A.3d at 221. Appellant asserts, however, that this Court's decision in Johnson was "wrongly decided[.]" Appellant's Brief at 9. We disagree.

In denying Appellant's request to dismiss the possession with intent to deliver charge on double jeopardy grounds, the trial court stated,

a key question in this case is whether the Philadelphia Municipal Court could have exercised jurisdiction over the [possession with intent to deliver] charge when it adjudicated [Appellant's] traffic citation for operating a vehicle without headlights. Clearly, the [Philadelphia] Municipal Court could not have done so. The [Philadelphia] Municipal Court's subject-matter jurisdiction does not extend to criminal offenses punishable by a term of imprisonment greater than five years. See Johnson, 221 A.3d [at] 220 (citing 42 Pa.C.S.[A.] § 1123(a)(1), (2)). Because the [possession with intent to deliver] charge alleges the delivery of crack cocaine, it carries a maximum possible penalty of ten years[' incarceration]. 35 P.S. [§] 780-113(f)(1.1). Therefore, the[Philadelphia] Municipal Court lacked jurisdiction over the [possession with intent to deliver] charge, and pursuant to 18 Pa.C.S.[A.] § 112(1), the Commonwealth is not barred from continuing to prosecute that offense in [the Court of Common Pleas in Philadelphia County].

Trial Court Opinion, 4/28/20, at 4.

A review of the record demonstrates that Appellant was convicted of a traffic summary offense for operating a vehicle without headlights, in violation of 75 Pa.C.S.A. § 4303(a), in Philadelphia Traffic Court, a division of Philadelphia's Municipal Court. See Appellant's Motion to Dismiss, 1/22/20, at Exhibit A. The Commonwealth concedes, and we agree, that Appellant's three misdemeanor drug charges were required to be brought against him at the same time as the traffic summary offense, pursuant to Section 110(1)(ii), and that those misdemeanor drug charges were properly dismissed on double jeopardy grounds. N.T., 1/27/20, at 5; see also Commonwealth's Brief at 5-7. Appellant's possession with the intent to deliver charge, however, involved cocaine and less than one pound of marijuana. Cocaine is a Schedule II narcotic, and the punishment for possession with the intent to deliver cocaine is, inter alia, a maximum sentence of 10 years' incarceration. S...