J-E03007-16

                                2017 PA Super 281



COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           Appellant

                      v.

MARC PERFETTO

                           Appellee                        No. 2479 EDA 2015


                     Appeal from the Order July 13, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013338-2014


BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J., OTT, J.,
        STABILE, J., DUBOW, J., MOULTON, J., and RANSOM, J.

CONCURRING OPINION BY MOULTON, J.:                        FILED AUGUST 30, 2017

     I agree with the majority that the trial court’s July 13, 2015 order

should be reversed, though on different grounds.                 I would hold that

prosecution of the summary traffic offense in the Philadelphia Municipal

Court Traffic Court Division did not bar a subsequent prosecution of the DUI

offenses    because   subsequent       prosecution   of    the   DUI   offenses   was

permissible under 18 Pa.C.S. § 112(1).

     Section 112 of the Crimes Code provides an exception to the

compulsory joinder requirement:

           § 112. Former prosecution before court lacking
           jurisdiction or when fraudulently procured by the
           defendant

           A prosecution is not a bar within the meaning of section
           109 of this title (relating to when prosecution barred by
           former prosecution for same the offense) through section
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           111 of this title (relating to when prosecution barred by
           former prosecution in another jurisdiction) under any of
           the following circumstances:

           (1) The former prosecution was before a court which
           lacked jurisdiction over the defendant or the offense.

18 Pa.C.S. § 112(1).

       I recognize that the cases discussing section 112(1) have addressed

the circumstance in which the court presiding over the former prosecution

lacked jurisdiction over the offense at issue in that prosecution, which is not

the situation here.      Those cases concluded that because the former court

lacked jurisdiction in the initial prosecution, that prosecution did not bar a

subsequent prosecution before a court that did have jurisdiction over both

the defendant and the offense. See Commonwealth v. Schmotzer, 831

A.2d 689, 696 (Pa.Super. 2003) (finding that prior prosecution in federal

court did not bar subsequent prosecution in state court where prosecution of

offense was previously dismissed by federal court for lack of jurisdiction);

Commonwealth v. Johnson, 669 A.2d 315, 318 (Pa. 1995) (discussing

section 112(1) and noting that subsequent prosecution on the same charges

would not be barred if original court lacked jurisdiction). 1   Nevertheless, I
____________________________________________


       1
         The comment to section 112(1) states that the section is in accord
with existing law and cites two cases: Commonwealth v. Klaiman, 46 Pa.
D. & C. 585 (C.P. Mont. Cnty. 1942), and Commonwealth v. Adams, 26
Pa. D. & C. 380 (C.P. Phila. Cnty. 1936). In Klaiman, a Montgomery
County jury rendered a verdict of “‘not guilty’ because of lack of
jurisdiction.” 46 Pa. D. & C. at 586. The court concluded that this acquittal
would not bar a subsequent prosecution in Delaware County, reasoning: “An
acquittal in a court not having jurisdiction of the offense is not former
(Footnote Continued Next Page)


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disagree with the majority’s implicit conclusion that section 112(1) applies

only to that set of circumstances.

      Under the plain language of section 112(1), a subsequent prosecution

is not barred where the court presiding over the “former prosecution,” while

it had jurisdiction over that matter, lacked jurisdiction over the “offense” to

be prosecuted in the subsequent prosecution. Here, the court presiding over

the first prosecution, the Philadelphia Municipal Court Traffic Division, lacked

jurisdiction over the DUI offenses.              See 42 Pa.C.S. § 1121(c)(3) (“The

Traffic Division shall, at the direction of the President Judge of the

Philadelphia    Municipal        Court,     exercise    jurisdiction   under   section

1123(a)(9)”); 42 Pa.C.S. § 1123(a)(9) (“Prosecutions for summary offenses

arising under: (i) Title 75; or (ii) an ordinance of a political subdivision

enacted pursuant to Title 75.”).            Accordingly, I would conclude that the

prosecution for the summary traffic offense in the Philadelphia Municipal

Court Traffic Division did not bar a subsequent prosecution for the DUI

offenses in the Philadelphia Municipal Court General Division.2
                       _______________________
(Footnote Continued)

jeopardy and is no bar to a subsequent trial in a court which has
jurisdiction.” Id. at 587. In Adams, the court concluded that the voluntary
withdraw of proceedings in Chester County did not bar a subsequent
prosecution in Philadelphia County for fornication, bastardy, and neglecting
and refusing to contribute reasonably to support of child born out of wedlock
where child was born in Philadelphia. 26 Pa.D. & C. at 381-82.
      2
       I agree with my dissenting colleagues that the Philadelphia Municipal
Court General Division has jurisdiction over both summary traffic offenses
and DUI offenses. Dissenting Op. at 5-6. This is different from other
(Footnote Continued Next Page)


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      Further, this “plain meaning” interpretation of section 112(1) is

consistent with the purposes of the compulsory joinder rules. This Court has

stated:

          The policies served by the statute are two-fold: to protect
          accused persons from governmental harassment of
          undergoing successive trials for offenses stemming from
          the same episode, and to promote judicial economy and
          finality by avoiding repetitious litigation. Commonwealth
          v. Anthony, 553 Pa. 55, 717 A.2d 1015, 1018–19 (1998).
          “By requiring compulsory joinder of all charges arising
          from the same criminal episode, a defendant need only
          ‘once run the gauntlet’ and confront the awesome
          resources of the state.” Commonwealth v. Hude, 500
          Pa. 482, 458 A.2d 177, 180 (1983).

Commonwealth v. George, 38 A.3d 893, 896 (Pa.Super. 2012).

      Here, the position taken by the trial court advances neither objective.

The judicial structure at issue, which limits the jurisdiction of the Traffic

Division to summary offenses, is designed to promote judicial economy.

Further, the process of prosecuting summary traffic offenses separately from


                       _______________________
(Footnote Continued)

Pennsylvania jurisdictions with traffic courts, where summary traffic
offenses, by statute, must be prosecuted in a proceeding separate from
misdemeanor and felony offenses. See 42 Pa.C.S. § 1302(a), (b). With
respect to section 112, however, I believe that this is a distinction without a
difference. In both situations, the court presiding over the first prosecution
– that is, the judge assigned to preside over the summary traffic offense –
lacked jurisdiction over the offense at issue in the subsequent prosecution.
Accordingly, because the “court” presiding over the prosecution of the
summary traffic offense – the judge assigned to the Philadelphia Municipal
Court Traffic Court Division – lacked jurisdiction over the DUI offenses, I
believe that section 112(1) permits a subsequent prosecution of the DUI
offenses by the Philadelphia Municipal Court General Division.



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more serious offenses is not likely to constitute the sort of “harassment” that

compulsory joinder is designed to prevent.3

       Accordingly, I respectfully concur in the result reached by the majority

to reverse the trial court’s order.

       Judge Ott joins this concurring opinion.




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       3
       Further, although the compulsory joinder rule is intended to prevent
harassment, such that the defendant “need only ‘once run the gauntlet’ and
confront the awesome resources in the state,” joinder is not always required
where the criminal acts resulted from the same criminal episode. Indeed, in
Commonwealth v. Fithian, 961 A.2d 66 (Pa. 2008), our Supreme Court
found that subsequent prosecution of drug offenses in Delaware County was
not barred by a prior prosecution of related drug offenses in Montgomery
County. The Court reasoned:

           While it may be true that all the charges could have been
           brought in Montgomery County, this is not the proper
           analysis. Section 110 is a statute of preclusion due to a
           former prosecution. As noted above, the proper analysis,
           pursuant to our interpretation of Section 110(1)(ii),
           focuses upon whether the offense occurred within the
           same judicial district. As these offenses took place solely
           within Philadelphia County, they did not occur “within the
           same judicial district as the former prosecution,”
           Montgomery County.       Therefore, the Delaware County
           prosecution for the charges of possession of a controlled
           substance, possession with intent to deliver, and
           possession of drug paraphernalia, is not barred by the
           compulsory joinder statute.

Id. at 79.




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