J-S37027-19

                                  2019 PA Super 312



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEWITT JOHNSON,                            :
                                               :
                       Appellant.              :   No. 1233 EDA 2017


                     Appeal from the Order, April 3, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0008678-2015.


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY KUNSELMAN, J.:                             FILED OCTOBER 16, 2019

        Defendant Dewitt Johnson appeals from the pre-trial order refusing to

dismiss the Commonwealth’s charges of possession with intent to deliver

heroin1 and knowing/intentional possession of heroin2 under the compulsory-

joinder rules.3 For the reasons that follow, we partially affirm and partially

reverse the order.
____________________________________________


1   35 P.S. § 780-113(a)(30).

2   35 P.S. § 780-113(a)(16).

3 “It is well settled in Pennsylvania that a defendant is entitled to an immediate
interlocutory appeal as of right from an order denying a non-frivolous motion
to dismiss on state or federal double jeopardy grounds.” Commonwealth v.
Calloway, 675 A.2d 743, 745 n.1 (Pa. Super. 1996). The trial court has
certified this interlocutory appeal for our review. “While an order denying a
motion to dismiss charges on double jeopardy grounds is technically
interlocutory, it is appealable as of right as long as the trial court certifies the
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       On June 23, 2015, police stopped Johnson for careless driving and

discovered that he had been driving with a suspended license. They patted

him down and found clear baggies containing unknown amounts of heroin.

The police charged Johnson with the previously mentioned drug-related

charges.    He also received a citation for driving with a suspended license.

Before bringing the drug charges in the Court of Common Pleas of

Philadelphia, the Commonwealth tried and convicted Johnson of the summary

offense in the Philadelphia Municipal Court (Traffic Division).

       Because the Philadelphia Municipal Court and the Court of Common

Pleas of Philadelphia are both in the First Judicial District of Pennsylvania,

Johnson moved to dismiss the drug charges on the grounds that, under the

General Assembly’s statutes, the Commonwealth needed to try all of his

offenses simultaneously. Johnson asserted the Commonwealth’s failure to do

so violated 18 Pa.C.S.A. § 110 and, as a result, put him in double jeopardy.4

       Applying this Court’s decision in Commonwealth v. Perfetto, 169 A.3d

1114 (Pa. Super. 2017) (en banc), the trial court refused to dismiss either of

the drug charges.       Perfetto was procedurally similar to this case.   There,

police pulled over Perfetto for driving without headlights at night, issued him

a citation, and arrested him for drunk driving. The Commonwealth tried and
____________________________________________


motion as non-frivolous.” Commonwealth v. Lynn, 192 A.3d 194, 196 n.1
(Pa. Super. 2018); see also Pa.R.Crim.P. 587(B)(6).

4 Article I, § 10 of the Constitution of the Commonwealth of Pennsylvania
dictates that “[n]o person shall, for the same offense, be twice put in jeopardy
of life or limb . . . .”

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convicted Perfetto in the Traffic Division of the Philadelphia Municipal Court on

the summary offense. The Commonwealth then attempted to try him for DUI

in the trial court. Perfetto filed a dismissal motion based upon the compulsory-

joinder statute.

      The trial court dismissed Perfetto’s DUI charge under 18 Pa.C.S.A. §110,

which bars a subsequent prosecution if:

         (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.A. § 110 (emphasis added).

      The Commonwealth appealed, and this Court reversed the dismissal of

the DUI charge. We held that, despite the plain language of 18 Pa.C.S.A. §

110 compelling joinder within the same judicial district, “the jurisdiction of a

court remains a consideration implicit to any compulsory joinder analysis, and

it is particularly important in those judicial districts that, for various reasons,

have distinct minor courts or magisterial district judges vested with exclusive

jurisdiction over specific matters.” Perfetto, 169 A.3d 1121.

      Based upon that holding, the trial court here denied Johnson’s motion

to dismiss. It opined that because “Philadelphia has a traffic court separate


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from the court of common pleas, the traffic offense may be disposed of at a

prior proceeding without violating double jeopardy and barring subsequent

prosecution for additional charges.” Trial Court Opinion, 9/18/18, at 4. The

trial court’s analysis was entirely correct at the time. However, on April 26,

2019, while this appeal was pending, the Supreme Court of Pennsylvania

reversed this Court’s decision. See Commonwealth v. Perfetto, 207 A.3d

812 (Pa. 2019) (“Perfetto II”).

         The Perfetto II Court concluded that 18 Pa.C.S.A. § 110(1)(ii) barred

the Commonwealth from further prosecuting Perfetto’s offense of DUI. The

Supreme Court reasoned that all of Perfetto’s alleged offenses arose from the

same criminal episode, occurred within the same judicial district, the

prosecutors knew of the other offenses when they tried the case in the

municipal court, and the Philadelphia Municipal Court’s General Division had

original jurisdiction over both the summary offense and the DUI offense.

Therefore, the Commonwealth needed to try all of its charges in the municipal

court.

         Here, the Commonwealth concedes that Perfetto II controls the drug

charge of knowing or intentional possession of heroin, because the municipal

court had jurisdiction over that offense.    See Commonwealth’s Brief at 4.

However, the Commonwealth still seeks to prosecute Johnson for possession

with intent to deliver. The Commonwealth argues that it may do so “under

18 Pa.C.S.A. § 112, which provides an exception to Section 110. Section 112

applies in the case at hand, because the municipal court lacks jurisdiction over

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[Johnson’s] charge of possession with intent to deliver.”    Commonwealth’s

Brief at 4.

      Johnson, who relies exclusively upon Section 110 in his brief, has not

filed a reply brief to contest the Commonwealth’s assertion of an exception to

Perfetto II under Section 112.

      “Because the relevant facts of this case are undisputed, this issue

presents a question of law. Consequently, our scope of review is plenary, and

our standard of review is de novo.” Perfetto II, 207 A.3d at 821. Moreover:

         to the extent that the resolution of this appeal requires us
         to interpret Subsection 110(1)(ii) or any other statute, such
         a task is guided by the Statutory Construction Act, 1
         Pa.C.S.A. §§ 1501-1991.         Pursuant to the Statutory
         Construction Act, the object of all statutory construction is
         to ascertain and effectuate the General Assembly’s
         intention. 1 Pa.C.S.A. § 1921(a). When the words of a
         statute are clear and free from ambiguity, the letter of the
         statute is not to be disregarded under the pretext of
         pursuing its spirit. 1 Pa.C.S.A. § 1921(b).

Id.

      The Commonwealth accepts Johnson’s argument that Section 110(1)(ii)

applies to the knowing-or-intentional-possession-of-heroin charge. All of the

charges against Johnson arise from the same criminal episode, within the

same judicial district, the municipal court convicted him for one of the

offenses, and the Commonwealth was aware of the drug-possession offense

before trying the summary offense. See Commonwealth v. Fithian, 961

A.2d 66, 71 (Pa. 2008) (distilling the four prongs of the test to dismiss for

failure to join charges under the compulsory-joinder statute). We agree and

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must therefore reverse the trial court’s refusal to dismiss the knowing-or-

intentional-possessing-of-heroin charge.

      We turn to the Commonwealth’s claim that the possession-of-heroin-

with-intent-to-deliver charge may go forward under the legislative exception

to Section 110. The Commonwealth asserts Section 112(1) trumps Section

110 in this case. We agree.

      Section 112 provides, in relevant part, that a former “prosecution is not

a bar within the meaning of section 109 of this title . . . through section 111

of this title . . . [if t]he former prosecution was before a court which lacked

jurisdiction over the defendant or the offense.”         18 Pa.C.S.A. § 112(1).

Clearly, this provision is an exception to Section 110, because the exception

applies to Sections 109 – 111.          Thus, we ask whether Johnson’s former

prosecution occurred before a court that lacked jurisdiction over either him or

the possession-of-heroin-with-intent-to-deliver.

      Undoubtedly, the municipal court possessed in personam jurisdiction

over Johnson. Instead, the Commonwealth claims that court lacked subject-

matter jurisdiction over the charge of possession of heroin with intent to

deliver.

      Unlike courts of common pleas with their “unlimited original jurisdiction

in all cases,” Pa. Const. Art. V, § 5(b), the Philadelphia Municipal Court has

limited,   original,   subject-matter    jurisdiction.   Our   state   constitution

established the municipal court. “In the City of Philadelphia there shall be a




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municipal court . . . and the jurisdiction shall be as provided by law.” Pa.

Const. Art. V, § 6(c).

      The Philadelphia Municipal Court’s criminal, subject-matter jurisdiction

extends to “summary offenses, except those arising out of the same episode

or transaction involving a delinquent act for which a petition alleging

delinquency is filed . . .” and “criminal offenses by any person (other than a

juvenile) for which no prison term may be imposed or which are punishable

by imprisonment for a term of not more than five years . . . .” 42 Pa.C.S.A.

§ 1123(a)(1),(2). All other criminal offenses occurring in the First Judicial

District of Pennsylvania come within the unlimited, original, subject-matter of

the Court of Common Pleas of Philadelphia.

      Thus, if a possession-of-heroin-with-intent-to-deliver charge falls

outside of these parameters, then original, subject-matter jurisdiction lies with

the trial court, as opposed to the municipal court.         We must examine the

maximum length of a potential sentence for possession of heroin with intent

to deliver, because, 42 Pa.C.S.A. § 1123(a)(2) ties the Philadelphia Municipal

Court’s   jurisdiction   to   the   maximum   length   of   a   criminal   offense’s

incarceration. The jurisdictional threshold is five years’ incarceration or less.

Any crime punishable by more than five years’ incarceration is within the

original jurisdiction of the court of common pleas.

      The crime at issue here is possession with intent to deliver, which our

legislature has codified at 35 P.S. § 780-133(a)(30) (prohibiting “possession

with intent to . . . deliver, a controlled substance by a person not registered

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under this act, or a practitioner not registered or licensed by the appropriate

State board . . . .”) “Any person who violates clause . . . (30) of subsection

(a) with respect to a controlled substance . . . classified in Schedule I or II

which is a narcotic drug, is guilty of a felony and upon conviction thereof shall

be sentenced to imprisonment not exceeding fifteen years.” 35 P.S. § 780-

113(f)(1).

      The police allegedly uncovered heroin in plastic baggies on Johnson’s

person. The legislature had listed heroin as a Schedule I controlled substance.

See 35 P.S. 780-104(1)(ii)(10). Thus, the maximum possible sentence that

Johnson faces for possession of heroin with intent to deliver is 15 years.

      Because the maximum possible sentence for the charge of possession

of heroin with intent to deliver exceeds the jurisdictional limits of the

Philadelphia Municipal Court, Johnson’s former prosecution for driving with a

suspended license occurred “before a court which lacked jurisdiction over the

. . . offense” of possession of heroin with intent to deliver. 18 Pa.C.S.A. §

112(1).      Accordingly, the court of common pleas may properly assert its

separate, original jurisdiction over that charge under Section 112.

      Indeed, the Supreme Court of Pennsylvania left room for a case such as

this when it decided Perfetto II. The Perfetto II Court stated that Perfetto’s

“former prosecution for his summary offense was before a court (namely, the

Philadelphia Municipal Court) that had jurisdiction to adjudicate all of [his]

charges, albeit in the court’s General Division.” Perfetto II, 207 A.3d at 823




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(emphasis added). Therefore, the Court rejected the Commonwealth’s claim

that the exception in Section 112(1) applied.

      Unlike Perfetto II, where the summary-offense prosecution occurred

before a court that also had jurisdiction over the DUI charge, Johnson’s case

has not come before a court with jurisdiction over the possession-of-heroin-

with-intent-to-deliver offense. Simply stated, he has not yet been in jeopardy

for that offense, because the Philadelphia Municipal Court lacked jurisdiction

to adjudicate it. The Commonwealth has not placed him “in jeopardy of life

or limb” regarding that offense. Pa. Const. Art. I, § 10. It may do so for the

first time in the court of common pleas.

      We therefore affirm the refusal to dismiss the charge of possession of

heroin with intent to deliver.

      Order affirmed in part and reversed in part. Case remanded for further

proceedings consistent with this opinion. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/19




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