Commonwealth v. Ramos

COMMONWEALTH OF PENNSYLVANIA v. MARIO RAMOS Appellant

No. 1552 EDA 2021

Superior Court of Pennsylvania

December 13, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered July 15, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s) MC-51-CR-0008480-2020

BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.

MEMORANDUM

BENDER, P.J.E.:

Appellant, Mario Ramos, appeals from the trial court's July 15, 2021 order denying his "Motion to Dismiss for Double Jeopardy," in which Appellant sought the dismissal of his pending criminal charges pursuant to the compulsory joinder rule under 18 Pa.C.S. § 110. After careful review, we affirm.

Appellant sets forth the facts of this case, as follows:

On May 3, 2020, … []Appellant[] was arrested after police recovered marijuana and a firearm from a vehicle that he was operating. Incident to his arrest, [Appellant] was charged with Violations of the Uniform Firearms Act ("VUFA") (18 Pa.C.S. §§ 6105, 6106, and 6108) and … a preliminary hearing [was scheduled for] May 19, 2020, in the Philadelphia Municipal Court. []Due to Covid-related court closings, the preliminary hearing was continued several times into 2021. Also incident to his arrest, [Appellant] was charged with possession of marijuana relative to the marijuana recovered from his vehicle contemporaneously with the firearm recovery. Relative to this marijuana recovery, [Appellant] was issued a City of Philadelphia Code Violation Notice[,] which demanded payment of a fine within ten days.¹ … [Appellant] did not timely respond to the Code Violation Notice. At all times going forward, the Commonwealth was free to amend the original Criminal Complaint to add the charge of possession of marijuana.

¹ Possession of marijuana is a crime (ungraded misdemeanor) codified at 35 P.[]S. § 780-113(a)(16)[, and] punishable by up to one year in prison and a $5,000 fine.

Thereafter, [Appellant] received a second Notice of Code Violation[,] dated August 3, 2020, from the City of Philadelphia. This notice included, inter alia, payment instructions to satisfy the violation online, in person, or by mail, and included the potential consequences for the failure to pay the citation[,] which included "additional penalties and further legal action, including the filing of a Code Enforcement Complaint in Municipal Court."² After

receiving this notice in the mail, [Appellant] acknowledged the violation and paid the penalty prescribed.

² At this juncture in [Appellant's] prosecution, the charges relative to the firearm recovered in [Appellant's] vehicle and the charge relative to the marijuana recovered from [Appellant's] vehicle were both in the jurisdiction of the Philadelphia Municipal Court.

***

Thereafter, [Appellant] was scheduled for a preliminary hearing on May 7, 2021. The case was continued until June 25, 2021, and on that date, [it] was continued until July 30, 2021. On June 28, 2021, [Appellant] filed a Motion to Dismiss for Double Jeopardy in the Philadelphia Court of Common Pleas[,] relying upon Pennsylvania's compulsory joinder statute, codified at 18 Pa.C.S. § 110. The motion was denied by the [trial court] on July 15, 2021. This interlocutory appeal is from that decision.

Appellant's Brief at 3-4.

After Appellant filed a notice of appeal from the court's July 15, 2021 order, the court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely complied, and the court then filed a Rule 1925(a) opinion on January 11, 2022. Herein, Appellant presents one issue for our review: "Did the [trial] court commit an error of law when it denied Appellant's Motion to Dismiss for Double Jeopardy based on 18 Pa.C.S. § 110?" Id. at 2.

Before considering Appellant's issue, we note that the trial court's order denying his motion to dismiss on double jeopardy grounds did not make a specific finding as to frivolousness. See Pa.R.Crim.P. 587(b)(4) ("In a case in which the judge denies the motion [for dismissal], the findings of fact shall include a specific finding as to frivolousness."). This Court recently explained:

[A]n order denying a double jeopardy motion, that makes no finding that the motion is frivolous, is a collateral order under Rule 313 of the Pennsylvania Rules of Appellate Procedure:

Rule 313. Collateral Orders

(a)General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.

(b)Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313 (effective July 4, 2013). Rule 313 is jurisdictional in nature. Commonwealth v. Blystone, … 119 A.3d 306, 312 ([Pa.] 2015). The Note to Rule 313 states that an established example of a collateral order is an order denying a pretrial motion to dismiss "based on double jeopardy in which the court does not find the motion frivolous." Pa.R.A.P. 313 Note (citing Orie, supra and Brady, supra). The planned amendment to the official note of Rule 313 continues this precedent and states in relevant part as follows:

Official Note: If an order meets the definition of a collateral order, it is appealed by filing a notice of appeal or petition for review. Pa.R.A.P. 313 is a codification of existing case law with respect to collateral orders.

***

Examples include...an order denying a pre-trial motion to dismiss on double jeopardy grounds if the trial court does not also make a finding that the motion to dismiss is frivolous. See Commonwealth v. Brady, … 508 A.2d 286, 289-91 (Pa. 1986) (allowing an immediate appeal from denial of double jeopardy claim under collateral order doctrine where trial court does not make a finding of frivolousness); Commonwealth v. Orie, … 22 A.3d 1021 (Pa. 2011). An order denying a pre-trial motion to dismiss on double jeopardy grounds that also finds that the motion to dismiss is frivolous is not appealable as of right as a collateral order, but may be appealable by permission under Pa.R.A.P. 1311(a)(3).

Pa.R.A.P. 313, Official Note (effective August 1, 2020). Bearing the relevant version of Rule 313 in mind, along with the planned amendment, Pennsylvania law makes clear that an order denying a double jeopardy motion, which makes no finding that the motion is frivolous, is a collateral order under Rule 313 an[d] immediately appealable. See id.

Commonwealth v. Gross, 232 A.3d 819, 832-33 (Pa. Super. 2020) (en banc), appeal denied, 242 A.3d 307 (Pa. 2020) (some emphasis omitted; some emphasis added). Following Gross, we conclude that the court's order in this case is immediately appealable.

Moving on to the merits of Appellant's issue, he contends that the court erred by not dismissing his firearm charges under the compulsory joinder rule set forth in section 110, "which requires the Commonwealth to join for trial all offenses that occur within the same judicial district." Appellant's Brief at 6. According to Appellant, he "pled guilty to the marijuana possession and paid a $25 fine[,]" thereby prohibiting the Commonwealth from prosecuting him separately for his firearm offenses, which "arose from the same criminal episode as the marijuana possession offense." Id. at 5-6.

Appellant's argument that the trial court incorrectly declined to dismiss his charges under the compulsory-joinder rule presents a pure question of law. "Consequently, our scope of review is plenary, and our standard of review is de novo." Commonwealth v. Perfetto, 207 A.3d 812, 821 (Pa. 2019).

Section 110, entitled, "When prosecution barred by former prosecution for different offense," states, in pertinent 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 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 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 (emphasis added).

Thus, as Appellant correctly summarizes,

under [s]ection 110, a subsequent prosecution is barred by a former prosecution if four requirements are met. First, the former prosecution resulted in an acquittal or a conviction. Second, the current prosecution arose from the same criminal episode as the former prosecution. Third, the current offense was known to the prosecutor at the time of the commencement of the former prosecution. Fourth, the current offense occurred in the same judicial district as the former prosecution. See Commonwealth v. Fithian, 961 A.2d 66, 72 (Pa. 2008).

Appellant's Brief at 11.

Instantly Appellant concludes that,

[a]ll four requirements of [s]ection 110 are clearly met here. First, the former prosecution of [Appellant] resulted in a guilty plea for possessing marijuana, and the imposition and payment of a $25 fine. Second, the current prosecution arose from the same criminal episode as the violation for possessing marijuana. … Third, the Philadelphia District Attorney's Office - who reviewed the [Philadelphia Police Department Arrest

...