Commonwealth v. Pammer

232 A.3d 931

COMMONWEALTH of Pennsylvania

v.Kelsey PAMMER, Appellant

No. 1356 EDA 2019

Superior Court of Pennsylvania.

Submitted January 6, 2020

Filed May 20, 2020

SaraAlison Moyer, Public Defender, Allentown, for appellant.

Heather F. Gallagher, Assistant District Attorney, Allentown, for Commonwealth, appellee.

BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.^*

OPINION BY BOWES, J.:

Kelsey Pammer appeals from the pre-trial order denying her motion to dismiss charges of driving under the influence ("DUI") of a controlled substance¹ , possession of cocaine² , possession of methamphetamine³ , and possession of drug paraphernalia⁴ under Pennsylvania's compulsory-joinder rule at 18 Pa.C.S. § 110. After careful review, we reverse the order and remand the case for further proceedings consistent with this opinion.

On October 24, 2018, Officer Kevin Azar of the South Whitehall Township Police

Department responded to a motor vehicle accident at Mauch Chunk Road in Lehigh County. Appellant was a driver involved in the accident and was transported to a local hospital for treatment. During the cleanup of the roadway and Appellant's vehicle, officers discovered three clear bags on the floor of the passenger side of the vehicle. Two of the bags field-tested positive for cocaine, and the third field-tested positive for methamphetamines. An analysis of Appellant's blood, which was obtained through a search warrant, revealed the presence of cocaine. A criminal complaint was filed charging Appellant with the above captioned crimes.

Officer Azar issued a separate citation for reckless driving, a summary offense, in the same October 24, 2018 incident. On December 4, 2018, Appellant appeared before a magisterial district judge, entered a guilty plea to the summary charge of reckless driving, and a sentence was imposed. Appellant waived her preliminary hearing on the DUI and related offenses. Thereafter, on the date of her formal arraignment, she filed an omnibus pretrial motion seeking dismissal of the DUI and related offenses pursuant to Pennsylvania's compulsory joinder statute. See 18 Pa.C.S. § 110.

A hearing on Appellant's motion was held on March 27, 2019, at which Officer Azar testified that he "accidentally pushed a button" while filing the criminal charges that generated a separate summary offense citation. See N.T. Hearing, 3/27/19, at 6. The Commonwealth argued that because reckless driving and DUI contain independent elements that the Commonwealth must prove in order to achieve convictions, prosecution should not be barred. The trial court agreed and issued an order and opinion denying the motion to dismiss. This interlocutory appeal immediately followed without an order seeking compliance with Pa.R.A.P. 1925.⁵

Appellant raises the following issue for our review: "Should the charges against [Appellant] have been dismissed pursuant to [s]ubsection 110(1)(ii) of Pennsylvania's compulsory joinder statute based on the prior adjudication of her summary traffic offense?" Appellant's brief at 4.

Our standard of review of a motion to dismiss on the basis of compulsory joinder principles pursuant to § 110 is de novo , and the scope of our review is plenary. See Commonwealth v. Perfetto , ––– Pa. ––––, 207 A.3d 812, 821 (2019) (" Perfetto II "). The compulsory joinder rule states in relevant part:

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 ... 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 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[.]

18 Pa.C.S. § 110(1)(ii). Our Supreme Court has distilled this statute into a four-part test to determine if prosecution is appropriately barred: (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 II , supra at 821.

Appellant argues that these four prongs are easily met here. First, the former prosecution of the traffic offense resulted in a conviction, more specifically, a guilty plea to reckless driving. See Appellant's brief at 13. Second, the DUI prosecution was based upon the same criminal episode, namely a motor vehicle accident in the 1800 block of Mauch Chunk Road on October 24, 2018. Id . at 14-15. Third, the prosecutor was aware of the instant charges, since the citation for the summary traffic offense was issued at the same time and by the same officer as the criminal complaint. Id . at 15. Finally, all of the offenses occurred within the same judicial district of Lehigh County. Id . at 17.

The Commonwealth originally invoked a line of cases beginning with Commonwealth v. Beatty , 500 Pa. 284, 455 A.2d 1194, 1198 (1983) (holding that traffic violations under the Motor Vehicle Code are excluded from the remit of the compulsory joinder rule pursuant to § 110(2)(ii) ), and contended that because the charges require proof of different elements, dual prosecutions were not barred by the compulsory joinder statute. However, the Commonwealth now concedes that our Supreme Court's holding in Perfetto II extinguished its previous argument. See Commonwealth's brief at 9.

In Commonwealth v. Perfetto , 169 A.3d 1114 (Pa.Super. 2017) (en banc ), the defendant was cited for a summary offense, charged separately with three counts of DUI, and found guilty of the summary offense in the traffic division of the Philadelphia Municipal Court. After a preliminary hearing, the defendant's DUI charges were bound over for trial and he filed a motion to dismiss based on the compulsory joinder rule. The trial court granted the motion and dismissed the DUI charges; the Commonwealth appealed. This Court reversed the trial court, concluding that because the defendant's summary traffic offense could only be tried in the traffic division of the Philadelphia Municipal Court, the subsequent prosecution for the DUI charges did not run afoul of the compulsory joinder rule. Id . at 1124-25.

Our Supreme Court disagreed. In Perfetto II , it explained that while the traffic division of the Philadelphia Municipal Court had limited jurisdiction to consider only summary traffic offenses, the general division of the Philadelphia Municipal Court had jurisdiction to adjudicate any matter that was properly before it. Perfetto II , supra at 822-23. Therefore, because the Commonwealth could have proceeded on all of the charges before the general division of municipal court and did not do so, it was precluded from prosecuting the defendant for his remaining charges.

As a result of the holding in Perfetto II , the Commonwealth now seeks to continue its DUI prosecution of Appellant by utilizing an exception to § 110, codified at 18 Pa.C.S. § 112 and applied in Commonwealth v. Johnson , 221 A.3d 217 (Pa.Super. 2019). See Commonwealth's brief at 11. Section 112 provides, in relevant part, that a former "prosecution is not a bar within the meaning of section 109 of this title ... through 111 of this title ... [if t]he former prosecution was before a court which lacked jurisdiction of the defendant or the offense." 18 Pa.C.S. § 112(1).

In Johnson , the defendant was charged with driving with a suspended license, possession of heroin, and possession with intent to deliver heroin ("PWID"). Before bringing the drug charges in the Philadelphia Court of Common Pleas, the Commonwealth tried and convicted the defendant of the summary offense in the traffic division of the Philadelphia Municipal Court. The defendant moved to dismiss the drug charges on the grounds that the Commonwealth was required to try all of his offenses simultaneously under 18 Pa.C.S. § 110. The trial court refused to dismiss the drug charges. While the defendant's appeal was pending, Perfetto II was decided. Applying Perfetto II to the facts before it, the Johnson Court affirmed the trial court, concluding that the prosecution of the PWID charge in the court of common pleas was not barred by 18 Pa.C.S. § 110 because it met the § 112(1) exception.

In order to determine whether the defendant's former prosecution occurred before a court that had jurisdiction to decide the remaining charges, the Johnson Court engaged in a statutory analysis of the provisions that govern the jurisdiction of the Philadelphia Municipal Court. Importantly, its review revealed that, under 42 Pa.C.S. § 1123(a)(2),⁶ the Philadelphia Municipal Court's jurisdiction was limited to the consideration of criminal offenses where the maximum length of incarceration upon conviction was five years. Since Appellant faced a maximum potential sentence of fifteen years’ incarceration if convicted of the PWID charge, the Johnson Court concluded that the Philadelphia Municipal Court did not have jurisdiction to decide the PWID charge. Accordingly, the court of common pleas could properly assert its separate, original jurisdiction over that charge under § 112(1).

While 42 Pa.C.S. § 1123(a)(2) clearly does not apply to Lehigh County, we find the approach taken by the Johnson Court instructive. Accordingly, we now proceed to consider whether Appellant's former prosecution occurred before a court that lacked jurisdiction for the DUI, possession, and possession of drug paraphernalia charges.

Appellant relies exclusively upon § 110...