J-S01012-20

                                   2020 PA Super 119


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KELSEY PAMMER                              :
                                               :
                       Appellant               :   No. 1356 EDA 2019

                  Appeal from the Order Entered April 1, 2019
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0005565-2018


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

OPINION BY BOWES, J.:                                      FILED MAY 20, 2020

        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 methamphetamine 3, 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.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. § 3802(D)(2), general impairment – first offense.

2   35 Pa.C.S. § 780-113(A)(16), an ungraded misdemeanor.

3   35 Pa.C.S. § 780-113(A)(16), an ungraded misdemeanor.

4   35 Pa.C.S. § 780-113(A)(32), an ungraded misdemeanor.
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      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

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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, 207 A.3d 812, 821 (Pa. 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:

____________________________________________


5 As a general rule of Pennsylvania law, a defendant has the right to an
immediate appeal from an order denying a pretrial motion to dismiss on
double jeopardy grounds. Commonwealth v. Orie, 22 A.3d 1021, 1024 (Pa.
2011); Commonwealth v. Gross, ___ Pa.Super. ___, 375 EDA 2016 (filed
April 29, 2020) (en banc); see also Pa.R.A.P. 313, Official Note (an order
denying a double jeopardy motion that makes no finding of frivolousness is a
collateral order). Here, the trial court found that “the matter is immediately
appealable as a collateral order.” See Trial Court Order, 4/1/19. Thus, the
interlocutory appeal was filed properly and Appellant may seek review.

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                  (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




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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, 455 A.2d 1194, 1198 (Pa. 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.




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      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


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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).


____________________________________________


6 “[T]he Philadelphia Municipal Court shall have jurisdiction of . . . . 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. § 1123(a)(2).

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      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 and has not filed a reply brief to

contest the Commonwealth’s new assertion of an exception to Perfetto II

under § 112. However, the Commonwealth argues that it can proceed on all

of the charges because, consistent with Johnson, supra, the magisterial

district judge in Lehigh County did not have jurisdiction over any of Appellant’s

other pending charges under 42 Pa.C.S. § 1515. See Commonwealth’s brief

at 13-14. We disagree.

      Pursuant to 42 Pa.C.S. § 1515, magisterial district judges have

jurisdiction over summary offenses, certain third-degree misdemeanors, and

some additional offenses under the following circumstances:

      (5) Offenses under 75 Pa.C.S. § 3802 (relating to driving under
      influence of alcohol or controlled substance), if the following
      criteria are met:

            (i) The offense is the first offense by the defendant
            under such provision in this Commonwealth.

            (ii) No personal injury (other than to the defendant)
            resulted from the offense.

            (iii) The defendant pleads guilty.




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            (iv) No property damage in excess of $500 other than
            to the defendant's property resulted from the
            violation.

            (v) The defendant is not subject to the provisions of
            Chapter 63 (relating to juvenile matters).

            (vi) The arresting authority shall cause to be
            transmitted a copy of the charge of any violation of 75
            Pa.C.S. § 3802 to the office of the clerk of the court
            of common pleas within five days after the preliminary
            arraignment.

     In determining that the above criteria are met the magisterial
     district judge shall rely on the certification of the arresting
     authority. Certification that the criteria are met need not be in
     writing. Within ten days after the disposition, the magisterial
     district judge shall certify the disposition to the office of the clerk
     of the court of common pleas in writing.

     ....

     (6)(i) Offenses under Title 18 (crimes and offenses), Title 30 (fish)
     and Title 35 (health and safety) which are classified as
     misdemeanors of the third degree, if the following criteria are
     met:

            (A) The misdemeanor is not the result of a reduced
            charge.

            (B) Any personal injury or property damage is less
            than $500.

            (C) The defendant pleads guilty.

            (D) The defendant is not subject to the provisions of
            Chapter 63.

42 Pa.C.S. § 1515(a)(5), (a)(6). Notably, “ungraded misdemeanors” or “[a]

crime declared to be a misdemeanor, without specification of degree” is

considered to be a misdemeanor of the third degree. 18 Pa.C.S. § 106(b)(9).


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Finally, “while statutes generally should be construed liberally, penal statutes

are always to be construed strictly, 1 Pa.C.S. § 1928(b)(1), and any ambiguity

in a penal statute should be interpreted in favor of the defendant.”

Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005).

      Although     Appellant   was    charged       with    a    first-offense   DUI,   the

Commonwealth contends that the magisterial district judge lacked jurisdiction

to decide this DUI because Appellant injured the driver in the vehicle that she

struck. See Commonwealth’s brief at 15-16. Further, the Commonwealth

asserts that there is a “longstanding general practice” that magisterial district

judges do not hear DUI cases because they lack sufficient information at the

preliminary hearing stage to determine if the defendant had previously

committed prior offenses under that statute.                Id. at 16.       Finally, the

Commonwealth contends that it may continue with the prosecution of drug

paraphernalia and possession because they are ungraded misdemeanors and

§ 1515 does not confer jurisdiction on magisterial district judges to handle

ungraded misdemeanor cases.

      There   is   no   evidence     in   the      record   to    support   any    of   the

Commonwealth’s contentions.           Since Appellant waived her preliminary

hearing, the only facts that have been adduced are contained in the affidavit

of probable cause, which states in its entirety as follows:

      1.    Your affiant, Kevin Azar, is a duly sworn Police Officer
      employed by South Whitehall Twp. PD, since 2017. Currently
      holding the rank of patrol officer.


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      2.    On October 24th, 2018 at approximately 1600 hours. Your
      affiant responded to Mauch [C]hunk Rd for a motor vehicle
      accident. A Blue Pontiac Sunfire, PA reg [. . . .] was involved in
      an accident on Mauch Chunk Rd. The operator drove into
      oncoming traffic and struck another vehicle.

      3.     The defendant Kelsey Pammer was pinned under the
      steering wheel and had to be extracted and taken to Lehigh Valley
      Cedar Crest by Cetronia Ambulance. During the cleanup of the
      vehicle in the roadway, 3 small clear bags were found on the floor
      of the passenger side of Pammer[’]s vehicle. Two bags field tested
      positive for Cocaine, and 1 bag field tested positive for Meth.

      4.    A search warrant for legal blood was drafted and approved
      by Chief ADA Renee Smith. Results yielded 66 ng/ml for Cocaine.

Affidavit of Probable Cause, 11/19/18.

      Stated simply, there is no information in this recitation indicating that

anyone other than Appellant was injured. Furthermore, the Commonwealth’s

second contention does nothing to support its argument. If the magisterial

district judge had subject matter jurisdiction over the other charges against

Appellant and simply declined to exercise it according to a “longstanding

practice,” then § 112 has not been met. It is axiomatic that “[a]ny issue going

to the subject matter jurisdiction of a court or administrative tribunal to act in

a particular matter is an issue that parties cannot waive by agreement or

stipulation, estoppel, or waiver.” Step Plan Services, Inc. v. Koresko, 12

A.3d 401, 417 (Pa.Super. 2010).

      Finally, “ungraded misdemeanors” are third-degree misdemeanors.

See 18 Pa.C.S. § 106(b)(9).      Appellant was charged with three ungraded

misdemeanors: possession of cocaine, possession of methamphetamine, and


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possession of drug paraphernalia. Therefore, the magisterial district judge

also enjoyed limited jurisdiction over these third-degree misdemeanor

narcotics charges pursuant to Pennsylvania statute if the requirements of 42

Pa.C.S. § 1515(6)(i) were met.        Accordingly, the Commonwealth’s bald

assertion that the magisterial district judge lacked jurisdiction over these

charges, without any specific argument pursuant to § 1515(6)(i), is

unsupported.

      In the absence of any authority or evidence from the Commonwealth

establishing that the magisterial district judge lacked jurisdiction under §

1515(5) and (6)(i), we cannot conclude that the Commonwealth has met its

burden of establishing the applicability of the exception to the compulsory

joinder statute enunciated at § 112. As detailed above, the certified record is

devoid of the necessary facts the Commonwealth would need in order to meet

the requirements of § 1515.      Furthermore, the Commonwealth’s statutory

analysis does not address all of the requirements listed in § 1515(5) and

(6)(i).

      Accordingly, since the Commonwealth has not sustained its burden with

respect to § 112, we are constrained to conclude that the compulsory joinder

statute as interpreted by Perfetto II compels dismissal of the DUI and related

charges.

      Order reversed. Case remanded for further proceedings consistent with

this opinion. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2020




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