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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                          Appellant         :
                                            :
                     v.                     :            No. 2449 EDA 2015
                                            :
JOHNATHAN CRUZ                              :


                Appeal from the Order Entered July 16, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0001778-2013


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED OCTOBER 12, 2017

     The Commonwealth appeals from the July 16, 2015 order entered in

the Court of Common Pleas of Philadelphia County that granted appellee

Johnathan   Cruz’s    motion    to    dismiss,   which   asserted   a   violation   of

Pennsylvania’s compulsory joinder rule codified at 18 Pa.C.S.A. § 110.

Based on this court’s recent en banc decision in Commonwealth v.

Perfetto,      A.3d       , 2017 WL 3776631 (Pa.Super. 2017) (en banc), we

reverse and remand.

     The trial court set forth the following:

            [Appellee] was arrested on August 10, 2012, and
            charged with possession with the intent to distribute,
            possession of a controlled substance, violations of
            the uniform firearms act, possession of an
            instrument of crime, receiving stolen property, and

* Former Justice specially assigned to the Superior Court.
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            conspiracy.[Footnote 1] At the time of his arrest,
            [appellee] was also charged with two summary
            traffic citations arising from the same incident:
            operating a vehicle without a license and operating a
            vehicle without a rear light.[Footnote 2] The traffic
            violations were brought before Traffic Court on
            October 12, 2012. [Appellee] was tried and found
            guilty in absentia at this time.            The trial
            in absentia occurred while [appellee] was in
            custody     on   an    unrelated   matter.      [The]
            Commonwealth then proceeded with the prosecution
            of the remaining misdemeanor and felony charges in
            Common Pleas Court. [Appellee] filed a motion to
            dismiss on the basis that the compulsory joinder rule
            bars the second prosecution after a first trial was
            already held in the traffic division.     [Appellee’s]
            motion was granted on July 16, 2015.

                 [Footnote 1]    35 Pa.C.S.A. §§ 780-
                 113(a)(30),          780-113(a)(16)[;]
                 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1),
                 6108, 907(a), 3925(a), and 903(c),
                 respectively.

                 [Footnote 2] 75 Pa.C.S.A. §§ 1501(a)
                 and 4303(b), respectively.

Trial court opinion, 11/18/15 at 1-2 (acronyms and record references

omitted).

     The record reflects that the Commonwealth filed a timely notice of

appeal to this court and, simultaneously and without being ordered to

pursuant to Pa.R.A.P. 1925(b), a concise statement of errors complained of

on appeal. Subsequently, the trial court filed a Rule 1925(a) opinion.

     The Commonwealth raises the following issue for our review: “Did the

lower court err when, in contravention of Supreme Court precedent, it

dismissed felony and misdemeanor charges pursuant to [the compulsory


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joinder statute,] 18 Pa.C.S.[A.] § 110[,] based on the prior adjudication of

summary traffic offenses?” (Commonwealth’s brief at 4.)

      Here, in analyzing whether the compulsory joinder rule barred the

subsequent     felony   prosecution,   the   trial    court   correctly   applied   the

four-prong test set forth in Commonwealth v. Reid, 77 A.3d 579, 582 (Pa.

2013).   Under that test, the compulsory joinder rule bars a subsequent

prosecution if each of the following is met:

             (1) the former prosecution resulted in an acquittal or
             conviction; (2) the current prosecution was based on
             the same criminal conduct or arose from the same
             criminal episode; (3) the prosecutor in the
             subsequent trial was aware of the charges before the
             first trial; and (4) all charges [are] within the same
             judicial district as the former prosecution.

Id. (citation omitted; bracket in original).

      In applying this test, the trial court found that the compulsory joinder

rule barred appellee’s subsequent felony prosecutions because all four

prongs were met. Preliminary, we note that no dispute exists that appellee’s

prosecution on the summary traffic offenses resulted in convictions, that the

felony prosecution would be based on the same criminal conduct or arose

from the same criminal episode, and that the Commonwealth knew of the

felony charges before the summary trial.             In light of Perfetto, 2017 WL

3776631, however, appellee fails to satisfy the fourth Reid test prong.

      In Perfetto, 2017 WL 3776631 at *11, this court held that where a

defendant’s summary traffic offense was to be heard solely in the



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Philadelphia Municipal Court Traffic Division pursuant to its jurisdiction in

accordance with Pa.C.S.A. § 1302(a.1)(1)(i), a prior disposition of that

summary traffic offense in traffic court does not bar a later prosecution of

other criminal charges that arose in the same judicial district and at the

same time as the summary traffic offense because Section 1302 carves out

an exception to compulsory joinder and directs that the summary traffic

offense is within the exclusive jurisdiction of the traffic court. Consequently,

appellee’s subsequent prosecution on the misdemeanor and felony charges

was not barred by compulsory joinder.

      Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/12/2017




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