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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DANNY V. NGUYEN

                                                     No. 2458 EDA 2015


                    Appeal from the Order August 6, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): MC-51-CR-0048127-2012


BEFORE: BOWES, MOULTON AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 21, 2019

      The Commonwealth appeals from the order dismissing the count of

driving under the influence (“DUI”) filed against Danny Nguyen (“Appellee”).

In a previously filed judgment order, we reversed the trial court’s dismissal of

Appellee’s DUI charge pursuant to Commonwealth v. Perfetto, 169 A.3d

1114 (Pa.Super. 2017) (en banc) (“Perfetto I”), which addressed the exact

issue presented herein. Our Supreme Court vacated and remanded this case

for reconsideration under their subsequent holding in Commonwealth v.

Perfetto, 207 A.3d 812 (Pa. 2019) (“Perfetto II”).         In light of this new

precedent, we affirm.

      The trial court provided a concise summary of the factual and procedural

history attendant to this case in its Rule 1925(a) opinion:
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      [O]n November 26, 2012, [Appellee] was arrested in Philadelphia
      after officers observed him swerve out of his lane of traffic. He
      was arrested and subsequently charged with the misdemeanor
      offense of [DUI] pursuant to 75 Pa.C.S. §[ ]3802, and two
      summary traffic offenses [of careless driving and failure to drive
      in a single lane]. In 2012, the Philadelphia Traffic Court found
      [Appellee] guilty of the two [summary traffic offenses], which he
      appealed to the Court of Common Pleas, but [which] was later
      dismissed because he failed to appear. The DUI charge was not
      adjudicated at that time. On January 7, 2015, [Appellee] moved
      to dismiss the DUI charge in Municipal Court before the Honorable
      Thomas F. Gehret, arguing that the Commonwealth was barred
      from prosecuting him under the compulsory joinder provisions of
      18 Pa.C.S. § 110(ii) because he was previously prosecuted for the
      two summary traffic offenses. On that date, Judge Gehret granted
      [Appellee’s] motion and dismissed the DUI prosecution.
      Commonwealth then appealed to the Court of Common Pleas. On
      August 6, 2015, the Honorable Michael E. Erdos denied the
      Commonwealth’s appeal pursuant to [§] 110.

Trial Court Opinion, 2/8/16, at 1-2.

      The Commonwealth appealed to this Court. In a judgment order dated

September 15, 2017, we reversed the trial court’s order pursuant to Perfetto

I, supra at 1125 (“[I]n those judicial districts which have a separate traffic

court, the summary traffic offenses may reach disposition in a single, prior

proceeding without violation of the compulsory joinder rules.”).           See

Commonwealth v. Nguyen, 178 A.3d 158 (Pa.Super. 2017) (unpublished

judgment order at ). Appellee filed a petition for allowance of appeal, which

was placed on hold while Perfetto I was on appeal before the Supreme Court.

On April 26, 2019, our Supreme Court overruled Perfetto I. Thereafter, the

Supreme Court granted Appellee’s allowance of appeal, vacated our prior

judgment order, and remanded for reconsideration in light of the holding in


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Perfetto II, supra at 822 (“[T]he plain language of Subsection 110(1)(ii) of

the compulsory joinder statute . . . makes clear that the Commonwealth is

precluded from prosecuting [a]ppellant for his DUI charge.”). On September

11, 2019, this Court ordered the parties to file new briefs addressing the

Supreme Court’s holding in Perfetto II, and the parties timely complied.

      The Commonwealth has preserved a single issue for our disposition in

this appeal: “Did the lower court err when it dismissed the charge of [DUI]

pursuant to 18 Pa.C.S. § 110 based on the prior adjudication of summary

traffic offenses?” Commonwealth’s brief at 1. However, given the holding in

Perfetto II, the Commonwealth now forthrightly concedes that the trial

court’s order dismissing Appellee’s DUI charge must be affirmed. See id. at

5 (“Because [Appellee’s] former prosecution for two summary traffic offenses

occurred in the Traffic Division of the Municipal Court, and the ‘General

Division [of that court] has jurisdiction to adjudicate any matter that is

properly before the Municipal Court,’ the successive prosecution here . . . is

barred.” (quoting Perfetto II, supra at 823)). Appellee has wisely concurred

in the Commonwealth’s analysis. Therefore, our review of this case will touch

upon these matter but briefly.

      Our review of a motion to dismiss on the basis of compulsory joinder

principles pursuant to § 110 presents a question of law in circumstances like

this, where the underlying facts of the case are not disputed.      Thus, our




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standard of review is plenary, and our scope of review is de novo.            See

Perfetto II, supra at 821.

      The resolution of this case depends upon our interpretation of

§ 110(1)(ii), which the trial court held precludes the Commonwealth from

prosecuting Appellee for the above-referenced DUI charge. See Trial Court

Opinion, 2/8/16, at 2-3. The statute provides, in pertinent part, as follows:

      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 as defined in section 109 of this title (relating to
         when prosecution barred by former prosecution for the
         same offense) 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. § 110 (emphasis added).

      Our Supreme Court has distilled these statutory provisions into a four-

part test that must be satisfied if prosecution is to be appropriately barred,

including: (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;


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(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.           See

Commonwealth v. Fithian, 961 A.2d 66, 72 (Pa. 2008).

      The trial court’s application of this test to the instant case is apt:

      These four prongs are easily met here.                First, the former
      prosecution of the traffic offenses resulted in a conviction—more
      specifically, a finding of guilt for failure to drive within a single
      lane and careless driving. Second, the DUI prosecution was based
      upon the same criminal conduct or same criminal episode,
      namely, [Appellee’s] swerving in and out of his lane. Third, the
      prosecutor was aware or should have been aware of the instant
      charges; indeed, the citations for the summary traffic offenses
      were issued at the same time as [Appellee] was arrested for DUI,
      and the traffic offense citations reference his arrest for DUI
      investigation. Finally, all of the offenses occurred within the same
      judicial district, the First Judicial District of Philadelphia.

Trial Court Opinion, 2/8/16, at 3. Indeed, this factual analysis is identical to

that carried out by our Supreme Court in Perfetto II, supra at 822.

      While the Commonwealth originally invoked a line of cases beginning

with our Supreme Court’s holding in 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)), it currently recognizes that the Supreme Court’s holding in

Perfetto II has effectively extinguished these exceptions to compulsory

joinder. See Perfetto II, supra at 823-24 (“We also find unpersuasive the

Commonwealth's alternative argument regarding Beatty, supra, and its

progeny. . . . [T]he policy considerations discussed in Beatty and invoked by

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the Commonwealth . . . simply do not apply to the current version[1] of the

compulsory joinder statute.”).

       We fully concur with the parties’ collective conclusion that Beatty and

its progeny are no longer applicable to § 110. Moreover, the exception for

summary traffic offenses from Perfetto I that we relied upon in issuing our

original judgment order in this case has been superseded by the holding in

Perfetto II.      The Commonwealth has not preserved any other appellate

arguments challenging the dismissal of Appellee’s DUI charge.                  See

Commonwealth’s brief at 7. Furthermore, no other operative exceptions to

the compulsory joinder statute apply to this case.2 Thus, we affirm.

       Order affirmed. Jurisdiction relinquished.




____________________________________________


1  A 2002 amendment to § 110 inserted the phrase “within the same judicial
district” in place of the phrase “within the jurisdiction of a single court” at 18
Pa.C.S. § 110(1)(ii).

2   The holding in Perfetto II also concluded that 18 Pa.C.S. § 112(1)
(compulsory joinder not preclusive where “[t]he former prosecution was
before a court which lacked jurisdiction over the defendant or the offense”)
was inapplicable in circumstances like those presented in this case. See
Perfetto II, supra at 822-23 (“The former prosecution in this case occurred
in the Traffic Division. . . . [T]he Traffic Division is not a ‘court’ unto itself;
rather, it is a division of the Philadelphia Municipal Court. . . . [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. . . .”). Appellee’s prosecution for traffic
offenses took place in the Traffic Division of the Philadelphia Municipal Court,
which had the necessary jurisdiction to adjudicate all of the charges against
Appellee. Consequently, § 112(1) is inapplicable to this case. Id.

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        Judge Moulton did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/19




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