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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
DONALD RAY GONDER,                       :         No. 104 MDA 2014
                                         :
                         Appellant       :


                Appeal from the Order Entered January 13, 2014,
              in the Court of Common Pleas of Cumberland County
                Criminal Division at No. CP-21-CR-0001621-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 21, 2015

      Donald Ray Gonder appeals from the order of January 13, 2014,

denying appellant’s consolidated motion to dismiss.1     After careful review,

we reverse.

      According to the affidavit of probable cause, on July 3, 2012, at

10:28 p.m., Officer Robert Powers was called to investigate a reported



* Former Justice specially assigned to the Superior Court.
1
   This is an interlocutory appeal as of right from the trial court’s denial of
appellant’s motion to dismiss on double jeopardy grounds and 18 Pa.C.S.A.
§ 110, the compulsory joinder rule. See Commonwealth v. Shull, 811
A.2d 1, 3 n.3 (Pa.Super. 2002), appeal denied, 818 A.2d 504 (Pa. 2003)
(“The denial of a pretrial motion to dismiss an indictment on double jeopardy
grounds is subject to appellate review unless it appears that the claim is
frivolous. A motion to dismiss on the basis of the compulsory joinder rule of
18 Pa.C.S.A. § 110 embodies the same constitutional protections underlying
the double jeopardy clause justifying interlocutory appeal of such claims”)
(citations omitted).
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assault and stolen vehicle at 7 West Lisburn Road in Upper Allen Township.

Officer Powers contacted the female victim, Briana Witmer, at that location

who related that at approximately 10:15 p.m. that night, she and appellant

had an argument and appellant slapped her in the face.            (Docket #3.)

Appellant then directed the victim to exit the vehicle, a white 1991 Dodge

Dakota, owned by the victim. (Id.) Appellant left the victim on the side of

the road and drove off. (Id.) A check of appellant’s certified driver record

from   PennDOT    revealed   that   his   operating   license   was   suspended,

DUI-related. (Id.)

       The trial court sets forth the procedural history of this matter as

follows:

                   On July 5, 2012, a criminal complaint was filed
            against [appellant] for an incident that occurred on
            July 3, 2012, in Upper Allen Township, Cumberland
            County. In that complaint, [appellant] was charged
            with violations of section 3928 of the Crimes Code,
            Unauthorized Use of Automobiles and Other Vehicles,
            a     misdemeanor      of    the    second    degree,
            section 1543(b) of the Vehicle Code, Driving While
            Operating Privilege is Suspended or Revoked, a
            summary offense, and section 2709 of the Crimes
            Code, Harassment, a summary offense. On July 23,
            2012, at a preliminary hearing, the magisterial
            district judge dismissed all charges for lack of
            prima facie evidence.       A summary citation for
            Driving While Operating Privilege is Suspended or
            Revoked was subsequently filed on August 1, 2012
            for the same July 3rd incident. The Unauthorized Use
            of Automobiles and Harassment charges were not
            re-filed at that time.

                  On November 5, 2012, a hearing was held
            before Magisterial District Judge Knepper on the


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            single count of the August 1st citation, and
            [appellant] was found guilty.          Judge Knepper
            sentenced [appellant] to sixty days in Cumberland
            County Prison and a $500 fine. On December 4,
            2012, [appellant] filed a Notice of Appeal from
            Summary Criminal Conviction. On April 2, 2013, at
            the summary appeal hearing, the Commonwealth
            moved to dismiss the citation of August 1st pursuant
            to Pa.R.Crim.P. 458, explicitly stating its intention to
            re-file the charge.[Footnote 18] When this Court
            asked the Commonwealth if there was an agreement
            as to who shall pay the costs, the Commonwealth
            responded that there was not an agreement.
            Defense Counsel stated that there was not an
            agreement, explaining that “we are not going to pay
            the costs so that they can re-file and bring
            misdemeanors along with the summary, so I object
            on those grounds.” We nonetheless granted the
            Commonwealth’s oral motion for dismissal pursuant
            to Rule 458, imposing costs on the Commonwealth.

                   [Footnote 18] Notes of Testimony, In Re:
                   Dismiss (Rule 458), April 2, 2013
                   (Christylee L. Peck, J.), (hereinafter,
                   “N.T. Summary Appeal”) at 2.          The
                   Commonwealth incorrectly cited the rule
                   as Rule 485. However, the remaining
                   discussion, and lack of a Rule 485 in our
                   Rules of Criminal Procedure, made clear
                   that Rule 458 was intended, and the
                   charge against [appellant] was thus
                   dismissed pursuant to Rule 458.

                  On April 10, 2013, as outlined above, the
            Commonwealth re-filed all charges contained in the
            original complaint of July 5th, 2012, and [appellant]
            is now challenging our denial of his motion to dismiss
            those charges.

Trial court opinion, 4/17/14 at 2-4 (additional footnotes and citations to the

record omitted).

      Appellant has raised the following issues for this court’s review:


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            I.     Whether the trial court erred in finding the
                   compulsory joinder rule did not bar the current
                   prosecution when appellant was already
                   convicted of a summary offense based on the
                   same criminal conduct, the prosecution was
                   aware of all charges before the first trial, and
                   all charges occurred within the same judicial
                   district?

            II.    Whether the trial court erred in finding that the
                   Commonwealth was not collaterally estopped
                   from pursuing additional criminal charges
                   against [appellant] when the issues in this
                   criminal proceeding are identical to those
                   decided in the former trial, the Commonwealth
                   was a party to the former proceeding, and the
                   Commonwealth had a full and fair opportunity
                   to actually litigate the issue of whether
                   [appellant] was driving or operating a vehicle
                   on July 3, 2012?

            III.   Did the trial court abuse its discretion when it
                   denied appellant’s motion to dismiss the
                   instant prosecution pursuant to Pennsylvania
                   Rule of Criminal Procedure 600 because the
                   Commonwealth failed to exercise due diligence
                   in bringing all charges against [appellant] at
                   the earliest possible time when all of the
                   witnesses and evidence necessary to prosecute
                   [appellant] was [sic] known and available to
                   the Commonwealth at the time of the initial
                   prosecution?

Appellant’s brief at 5 (capitalization omitted).

            Section 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.   18 Pa.C.S. § 110;
            Commonwealth v. Hude, 500 Pa. 482, 490, 458
            A.2d 177, 181 (1983). This compulsory joinder rule
            serves two distinct policy considerations. First, it
            protects a defendant from the governmental
            harassment of being subjected to successive trials


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           for offenses stemming from the same criminal
           episode. Secondly, the rule assures finality without
           unduly burdening the judicial process by repetitious
           litigation. See Hude, 500 Pa. at 489, 458 A.2d at
           180. In Commonwealth v. Geyer, 546 Pa. 586,
           592-93, 687 A.2d 815, 818 (1996), this Court
           clarified that Section 110 applies to prosecutions for
           summary offenses, such as the speeding and DUS
           [(driving under suspension)] offenses for which
           Appellants were charged.         We explained that
           regardless of the fact that proceedings concerning
           summary offenses are generally resolved quickly,
           “no defendant should be subjected to unnecessary
           successive prosecutions of any kind. Further, the
           interests of judicial economy are served by relieving
           the court system of repetitious litigation of any
           nature.” Id., 687 A.2d at 818.

Commonwealth v. Failor, 770 A.2d 310, 313 (Pa. 2001).

           Under Section 110(1)(ii), the specific provision
           applicable to Appellants’ cases, the Commonwealth is
           prohibited from prosecuting a defendant based on its
           former prosecution of the defendant if the following
           four-part test is met: (1) the former prosecution
           resulted in an acquittal or a conviction; (2) the
           current prosecution must be based on the same
           criminal conduct or have arisen from the same
           criminal episode as the former prosecution; (3) the
           prosecutor must have been aware of the current
           charges before the commencement of the trial for
           the former charges; and (4) the current charges and
           the former charges must be within the jurisdiction of
           a single [judicial district].     Commonwealth v.
           Hockenbury, 549 Pa. 527, 533, 701 A.2d 1334,
           1336 (1997); Geyer, 546 Pa. at 590, 687 A.2d at
           817; Commonwealth v. Bracalielly, 540 Pa. 460,
           468, 658 A.2d 755, 760 (1995).

Id.2

2
  Section 110(1)(ii) was amended in 2002 to substitute “occurred within the
same judicial district as the former prosecution” for “was within the
jurisdiction of a single court.”


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      In the instant case, all four prongs of Section 110(1)(ii) were satisfied

at the time appellant was convicted of DUS. As to the first prong, appellant

was found guilty of DUS following a hearing before MDJ Knepper on

November 5, 2012, and sentenced to 60 days’ imprisonment and a

$500 fine. The second prong was met because all charges arose during the

same criminal episode; namely, the July 3, 2012 incident wherein appellant

allegedly slapped the victim and took her truck without permission while

driving under a suspended license.            Regarding the third prong, the

Commonwealth      obviously   knew    about    appellant’s   other   charges   for

harassment and unauthorized use because those charges had been brought

in the original complaint and dismissed on July 23, 2012, following a

preliminary hearing.    The Commonwealth could have re-filed them and

chose not to. Finally, the fourth prong of Section 110(1)(ii) is satisfied as all

charges are within the jurisdiction of a single judicial district. Since all four

prongs of Section 110(1)(ii) were clearly met when appellant was prosecuted

for harassment and unauthorized use of an automobile, the Commonwealth

should have been precluded from bringing those charges.          Failor, supra;

Geyer, supra.

      The trial court and the Commonwealth rely on Commonwealth v.

Breitegan, 456 A.2d 1340 (Pa. 1983), and Commonwealth v. Beatty,

455 A.2d 1194 (Pa. 1983), for the proposition that Section 110 does not

apply to summary offenses. However, as the court explained in Geyer, the



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holdings   in   those   cases    were    based    on   the    prior      version   of

Section 110(1)(ii), which bars prosecution for a second offense where the

subsequent prosecution “was within the jurisdiction of a single court.”

Beatty and Breitegan did not hold that Section 110, as a rule, does not

apply to summary offenses.

            Although a cursory reading of Beatty may appear
            categorically to exclude traffic violations from
            Section 110 and the compulsory joinder rule, the
            premise underlying our analysis in Beatty was that
            the two offenses were not within the jurisdiction of a
            single court.    Therefore Section 110 and the
            compulsory joinder rule, although applicable, did not
            preclude the subsequent prosecution.

            In Breitegan, we cited Beatty for the proposition
            that “the compulsory joinder rule and Section 110 do
            not apply to prior summary convictions for traffic
            violations under the Motor Vehicle Code.” Id. at
            386, 456 A.2d at 1341. This statement, however,
            examined within the context of the case, signifies
            that Section 110 does not bar the prosecution of a
            misdemeanor after a defendant enters a guilty plea
            to summary traffic citations arising from the same
            criminal episode.

            We again cited Beatty in support of our
            interpretation of Section 110 “as excluding traffic
            violations under the Motor Vehicle Code” in
            Commonwealth v. Taylor, 513 Pa. 547, 553, 522
            A.2d 37, 39 (1987). The controlling consideration in
            Taylor, as in Beatty and Breitegan, was that the
            defendant was convicted of a summary offense
            before a district justice prior to his prosecution on a
            misdemeanor and/or felony charge in the court of
            common pleas. We concluded in Taylor that “since
            the harassment charge, as a summary offense, was
            in the jurisdiction of the district justice, conviction or
            a plea of guilty to that charge in a summary
            proceeding did not bar the subsequent trial of the


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            [misdemeanor] weapons offense.”        Id. at 553, 522
            A.2d at 40.

Geyer, 687 A.2d at 817.      Our supreme court in Geyer distinguished the

Beatty/Breitegan line of cases on the basis that Geyer involved the

prosecution of two summary offenses, speeding and DUS, which are both

within the jurisdiction of the same district justice; i.e., “a single court.” Id.

at 817-818.     However, the distinction between summary offenses and

misdemeanors/felonies is no longer valid since the legislature amended the

language in Section 110(1)(ii) to read,

            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.A. § 110(1)(ii) (emphasis added).

      As the trial court acknowledges, this broader language effectively

abrogates any ruling that relied on the much narrower “jurisdiction of a

single court” language present in the prior version of Section 110(1)(ii).

(Trial court opinion, 4/17/14 at 11.)3 Nevertheless, both the trial court and

the Commonwealth contend that because appellant filed an appeal, it

somehow nullified his conviction of DUS. Section 110(1) requires that the

former prosecution “resulted in an acquittal or in a conviction as defined in


3
  The trial court’s opinion is unpaginated; page numbers are by our own
count.


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section 109 of this title.” Section 109(3) provides, in relevant part, “There is

a conviction if the prosecution resulted in a judgment of conviction which has

not been reversed or vacated, a verdict of guilty which has not been set

aside and which is capable of supporting a judgment, or a plea of guilty

accepted by the court.”

      As stated above, appellant was convicted of DUS before MDJ Knepper

and sentenced to serve 60 days in jail and a $500 fine. Although appellant

took an appeal, his conviction was not reversed or vacated, nor has it been

set aside. It is true that an appeal from a summary conviction is “de novo,”

i.e., the trial court considers the case anew and is not bound by prior

findings of the MDJ.     See Commonwealth v. Beam, 923 A.2d 414, 417

(Pa.Super. 2007), appeal denied, 952 A.2d 673 (Pa. 2008) (“‘De novo’

review entails, as the term suggests, full consideration of the case anew.

The reviewing body is in effect substituted for the prior decision maker and

redecides the case.”), quoting Rebert v. Rebert, 757 A.2d 981, 984

(Pa.Super. 2000) (citation omitted). However, there is no authority cited for

the proposition that taking an appeal from a summary conviction, which

results in the case being heard de novo in the Court of Common Pleas,

wipes out the prior conviction for Section 110 purposes.

      The Commonwealth also argues that a nolle pros acts as neither an

acquittal   nor   a   conviction   and   it    could   re-file   the   charges.   “A

nolle prosequi is a voluntary withdrawal by the prosecuting attorney of



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proceedings on a particular bill or information, which can at anytime be

retracted to permit a revival of proceedings on the original bill or

information.” Commonwealth v. Whiting, 500 A.2d 806, 807 (Pa. 1985)

(citation omitted); Commonwealth v. Ahearn, 670 A.2d 133, 135 (Pa.

1996). See also Pa.R.Crim.P. 585(A) (“Upon motion of the attorney for the

Commonwealth, the court may, in open court, order a nolle prosequi of

one or more charges notwithstanding the objection of any person.”);

42 Pa.C.S.A. § 8932.

     Here, we note that the Commonwealth moved to dismiss the case

under Pa.R.Crim.P. 458, “Dismissal In Summary Cases Upon Satisfaction or

Agreement.”     This rule permits an issuing authority, i.e., a magisterial

district judge, to dismiss a summary case when the provisions of

paragraph (A) are satisfied, including that there is an agreement as to whom

shall pay costs, and satisfaction has been made to the aggrieved person.

Rule 458, Comment. Clearly, Rule 458 was inapplicable where the matter

was on appeal to the Court of Common Pleas.              In addition, Rule 458

contemplates a complete dismissal, not a nolle pros with the option to

re-file later. If the Commonwealth desired to nolle pros the case, it should

have proceeded under Rule 585(A).             Then the trial court could have

considered whether the Commonwealth’s reason for the request was

reasonable,    and   whether   appellant   had   a   valid   speedy   trial   claim.

Commonwealth v. Goldman, 70 A.3d 874, 878 (Pa.Super. 2013), appeal



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denied, 85 A.3d 482 (Pa. 2014), citing Commonwealth v. Reinhart, 353

A.2d 848, 853 (Pa. 1976). Instead, the Commonwealth moved to dismiss

the case.

     Furthermore, even if we were to consider the Commonwealth’s motion

as a request for nolle pros, the Commonwealth could not re-file the

DUS charge without running afoul of Pa.R.Crim.P. 600. The Commonwealth

has 365 days from the filing of the written complaint to commence trial.

Rule 600(A)(2)(a).   Where the Commonwealth has withdrawn the original

complaint, and then filed a second complaint, it is entitled to calculate the

Rule 600 run date from the time of the second filing only where the

withdrawal and re-filing are necessitated by factors beyond its control. As

this court explained in Goldman, supra, discussing our supreme court’s

decision in Commonwealth v. Meadius, 870 A.2d 802 (Pa. 2005):

            In Meadius, our Supreme Court addressed the
            manner in which to calculate the Rule 600 run date if
            the Commonwealth files two complaints against a
            defendant. In that case, the prosecution withdrew a
            criminal complaint after several continuances, then
            filed a new complaint charging the defendant with
            the same offenses. Meadius, 870 A.2d at 803. The
            defendant argued that reinstating the charges
            violated Rule 600 because the Commonwealth failed
            to commence trial within one year of the filing of the
            original complaint. Id. The Commonwealth argued
            that the one-year period commenced when the
            second complaint was filed, in which case Rule 600
            was not violated. Id. at 804. Ultimately, the Court
            held that the Rule 600 run date is calculated from
            the second filing only in circumstances where the
            withdrawal and re-filing are necessitated by factors
            beyond     the    Commonwealth’s      control,     the


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               Commonwealth has exercised due diligence, and the
               re-filing is not an attempt to circumvent the
               limitations of Rule 600. Id. at 808.

Goldman, 70 A.3d at 880 (emphasis in original).

      Instantly, even if we treat the Commonwealth’s improper motion to

dismiss as a request for nolle pros, it appears that the only reason the

Commonwealth wanted to nolle pros the DUS charge was so it could re-file

along with the harassment and misdemeanor unauthorized use charges. In

fact, as discussed above, it could not file a second complaint bringing the

additional charges of harassment and unauthorized use without violating the

compulsory joinder rule, where they all originated from the same incident.

In addition, the record indicates that the Commonwealth wanted to bring the

additional charges in retaliation for appellant’s appeal of the DUS conviction.

(See notes of testimony, 11/27/13 at 26-27 (“the record indicates that the

reason that we were re-filing the charges is because we were within the

time. And if he wasn’t going to accept responsibility and plead and all that,

we are well within our legal right to do that, and that’s what the record

reflects”).)    Certainly, this is not a situation where the withdrawal and

re-filing was necessitated by factors beyond the Commonwealth’s control.

Therefore, we look to the date of the original filing for Rule 600 purposes.

Meadius, supra. The original complaint was filed August 1, 2012, 443 days

before appellant filed his pre-trial motion to dismiss on October 17, 2013.

There was no excludable time during that time period. As such, the second



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complaint filed April 12, 2013, is out of time. Therefore, appellant is entitled

to dismissal of the summary DUS charge, as well as the harassment and

unauthorized use charges.

      Order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/21/2015




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