                              [J-105-2018][M.O. - Baer, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                   EASTERN DISTRICT



COMMONWEALTH OF PENNSYLVANIA,                :   No. 7 EAP 2018
                                             :
                      Appellee               :   Appeal from the Order of the Superior
                                             :   Court entered on 8/30/17 at No. 2479
                                             :   EDA 2015 reversing the order entered
                                             :   on 7/13/15 in the Court of Common
                 v.                          :   Pleas, Philadelphia County, Criminal
                                             :   Division at No. CP-51-CR-0013338-
                                             :   2014
MARC PERFETTO,                               :
                                             :
                      Appellant              :   ARGUED: December 6, 2018




                                   DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                         DECIDED: April 26, 2019


      I respectfully dissent, as I agree with the approach set forth in Judge Moulton’s

concurrence. See Commonwealth v. Perfetto, 169 A.3d 1114, 1125-27 (Pa. Super.

2017) (Moulton, J., concurring).

      According to the majority, the 2002 amendments to Section 110 of the Crimes

Code “eliminate[ed] the jurisdictional analysis from the statute and, thus, from

contemporary compulsory joinder analysis.” Majority Opinion, slip op. at 20. However,

the majority has not discounted the Commonwealth’s argument that a jurisdictional

assessment is essential to the proper application of the express exception to Section

110 set forth in Section 112(1).      See 18 Pa.C.S. §112(1) (negating Section 110’s

requirement of compulsory joinder where “[t]he former prosecution was before a court
which lacked jurisdiction over the defendant or the offense”). Indeed, the majority rests

its disposition, as it concerns the Section 112(1) exception, upon an explicit examination

of jurisdiction. See Majority Opinion, slip op. at 18 (“[T]he reality is that Appellant’s

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

Philadelphia Municipal Court) that had jurisdiction to adjudicate all of Appellant’s

charges, albeit in the court’s General Division.”).

       In this regard, the majority equates the statutory term “court” with the institution

or tribunal involved, rather than the particular judge.      The Crimes Code, however,

defines “court” as:    “Includes (when exercising criminal or quasi-criminal jurisdiction

pursuant to 42 Pa.C.S. §1515 (relating to jurisdiction and venue)) a magisterial district

judge.” 18 Pa.C.S. §103 (emphasis added). Although the word “court” is frequently

ambiguous, accord Village of Shorewood v. Steinberg, 496 N.W.2d 57, 61 (Wis. 1993)

(“[A] reasonably well-informed person could just as reasonably conclude that the

legislature intended the word ‘court’ to mean ‘circuit court’ as conclude it intended ‘court’

to mean ‘judge.’”), here, the General Assembly has centered the focus on the jurist

rather than the tribunal.1

       As Judge Moulton explained in his concurring opinion, the hearing officer of the

Traffic Division of the Philadelphia Municipal Court that adjudicated Appellant’s

summary traffic offense plainly lacked jurisdiction to adjudicate the misdemeanor DUI

charges.   See Perfetto, 169 A.3d at 1126 (Moulton, J., concurring) (citing Section

1121(c)(3) of the Judicial Code, which limits a Traffic Division judge’s jurisdiction, by

way of cross-reference to Section 1123(a)(9), to prosecutions for summary offenses


1 I do not discount that there may be some inconsistent usage of the term “court”
throughout the Crimes Code, but in my view, relative to Section 110’s protections, it is
most sensible to focus on the jurisdiction of the particular jurist (or the judge and jury)
presiding over the adjudication of the offenses involved.


                             [J-105-2018][M.O. – Baer, J.] - 2
related to the Vehicle Code). Accordingly, to the degree that the term “the offense” in

Section   112(1)    encompasses      the   misdemeanor      DUI    charge,   the   exception

straightforwardly applies. Accord id.

       I recognize that the term “the offense” is ambiguous in this context. Accord Brief

for Appellee at 9 (“Section 112 permits successive prosecutions when the first court did

not have jurisdiction over ‘the’ offense, but it does not spell out what ‘the’ offense is: the

charge in the first prosecution, or the charge in the second prosecution?”). From my

point of view, the Legislature most likely intended the term to provide reasonable

protection against successive prosecutions, consistent with the constitutional double

jeopardy jurisprudence, while also recognizing that there is a legitimate “division of labor

in our court system.” Commonwealth v. Beatty, 500 Pa. 284, 290 n.3, 455 A.2d 1194,

1198 n.3 (1978).2 Thus, I would credit the Commonwealth’s position that “the offense”

encompasses the charged offense that would otherwise be barred under Section 110.

Accord Perfetto, 169 A.3d at 1126-27 (Moulton, J.).3

       Particularly with respect to the Traffic Division of the Philadelphia Municipal Court

-- which did not come into existence until forty years after the initial promulgation of

Sections 110 and 112 -- it does not seem to me that the Legislature would have

contemplated compulsory joinder thwarting the statutorily-prescribed division of labor

and operating well outside the ambit of constitutional double jeopardy protections. See

United States v. Dixon, 509 U.S. 688, 696, 711-12, 113 S. Ct. 2849, 2856, 2864 (1993)

2  Although, as the majority emphasizes, Beatty focused on the now-excised
jurisdictional language in Section 110, I see no reason to view the jurisdictional
terminology in Section 112 in any different light.

3 I also agree with the additional policy analysis discussed by Judge Moulton. See
Perfetto, 169 A.3d at 1127 (“[T]he process of prosecuting summary offenses separately
from more serious offenses is not likely to constitute the sort of ‘harassment’ that
compulsory joinder is designed to prevent.”).


                             [J-105-2018][M.O. – Baer, J.] - 3
(holding that the Double Jeopardy Clause of the United States Constitution does not bar

successive prosecutions, although the charges in the serial proceedings may be based

on the same conduct, when they entail different elements); accord Commonwealth v.

Jones, 542 Pa. 464, 505 n.24, 668 A.2d 491, 511 n.24 (1995).                   See generally

Commonwealth v. Bracalielly, 540 Pa. 460, 469, 658 A.2d 755, 759 (1995) (explaining

that Section 110 “statutorily extends Federal and Pennsylvania constitutional

protections against double jeopardy and embodies the same basic purposes as those

underlying the double jeopardy clauses”).

       Finally, I respectfully differ with the majority’s position, as stated in its footnote 6,

that the Commonwealth has failed to develop its argument that the misdemeanor DUI

charges will have to be adjudicated in the common pleas court, in light of the

Commonwealth’s stated intention to assert its own right to a jury trial. Indeed, the fact

that the case already had been transferred to the common pleas court is in tension with

the majority’s assertion that the Municipal Court had jurisdiction to “adjudicate all of

Appellant’s charges,” Majority Opinion, slip op. at 18.          See Pa.R.Crim.P. 1001(D)

(“When a case is held for court, the case shall remain in the Common Pleas Court

through the final disposition.”).



       Justice Dougherty joins this dissenting opinion.




                             [J-105-2018][M.O. – Baer, J.] - 4
