J-S13022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    DAIYCHELLE ATKINSON

                             Appellant                  No. 1562 EDA 2016


                     Appeal from the Order August 3, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0001158-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED SEPTEMBER 29, 2017

        Daiychelle Atkinson appeals from the trial court’s order denying her

motion to dismiss1 based on the compulsory joinder principles of section 110

of the Crimes Code. 2 We affirm.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.

1
  We note that because “the protection of the compulsory joinder of charges
statute is in the nature of protection against double jeopardy, an order
denying a motion to invoke that statute's protection is . . . subject to
immediate appeal.” Commonwealth v. Barber, 940 A.2d 369, 376 (Pa.
Super. 2007) (citations omitted).

2
    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:
J-S13022-17



       On January 8, 2013, Atkinson was arrested and charged with driving

under the influence (DUI), 75 Pa.C.S. § 3802, as well as a violation of the

Motor Vehicle Code (MVC) for disregarding a traffic device, 75 Pa.C.S. §

3111(a). On March 13, 2013, Atkinson was found guilty by the Philadelphia

Traffic Court of the offense of disregarding a traffic device. No appeal was

filed. The Commonwealth continued its prosecution of the DUI offense in the

Criminal Trial Division in Philadelphia. On August 3, 2015, Atkinson filed a

motion to dismiss the DUI offense, in the Municipal Court, pursuant to 18

Pa.C.S. § 110, the compulsory joinder rule.          The Municipal Court denied

Atkinson’s motion to dismiss.

       Atkinson filed an interlocutory appeal from that order to the Philadelphia

Court of Common Pleas. On October 23, 2015, the trial court affirmed the

____________________________________________


       (1)       The former prosecution resulted in an acquittal or in
                 a conviction . . . and the subsequent prosecution is
                 for:

          (i)         any offense of which the defendant could have
                      been convicted on the first prosecution.

          (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) (amended 2002) (emphasis added).



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J-S13022-17



Municipal Court’s denial of Atkinson’s motion to dismiss. On November 23,

2015, Atkinson filed a timely notice of appeal to this Court. She raises the

following issue for our review:           Did not the lower court err in denying

[Atkinson]’s motion to dismiss pursuant to 18 Pa.C.S. § 110(a)(1)(ii)[,] where

[Atkinson] had previously been convicted of offenses which arose from the

same criminal episode in the same judicial district as the offense in the instant

case?3

       Notwithstanding the “occurred within the same judicial district”

language found in section 110(1)(ii), at the time Atkinson was charged and

found guilty of the MVC offense in Traffic Court, the Municipal Court lacked

jurisdiction to hear both her summary and DUI offenses.4 Simply put, the

Municipal Court did not have the jurisdictional authority to adjudicate

Atkinson’s MVC offense. The Commonwealth had no choice but to prosecute

Atkinson of the summary offense in Traffic Court where there was a

jurisdictional bar precluding it from prosecuting her at that time for all offenses



____________________________________________


3
  Our standard of review of issues concerning section 110 is plenary.
Commonwealth v. Reid, 35 A.3d 773, 776 (Pa. Super. 2012).
4
  We recognize that on June 19, 2013, the Philadelphia Traffic Court was
effectively abolished when the General Assembly restructured the Philadelphia
Municipal Court, now comprised of two administrative sections, the General
Division and the Traffic Division. See Act 17 of 2013, P.L. 55, No. 17 (June
19, 2013). Thereafter, all Traffic Court responsibilities were transferred to the
Municipal Court.



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J-S13022-17


in one proceeding. Thus, there is no Rule 110 bar to the instant prosecution.

Accordingly, the trial court properly dismissed Atkinson’s Rule 110 motion.

       Order affirmed.5

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017
____________________________________________


5
   Recently, in Commonwealth v. Perfetto, 2017 PA Super 281 (Pa. Super.
filed August 30, 2017) (en banc), our full Court held that barring certain
judicial exceptions, “the subsequent prosecution of an offense arising out of a
criminal episode that had triggered the former prosecution of a different
offense is barred where those multiple offenses occur in the same judicial
district.” Id. at *1. However, where the prosecutions occur in Philadelphia
County, like in Perfetto, “all summary traffic offenses may be disposed of in
a single proceeding in the traffic court separately from other criminal charges
without violating the compulsory joinder rule.” Id. at *13. The Perfetto Court
observed that in the unique context of Philadelphia, the Supreme Court of
Pennsylvania has allocated disposition of summary traffic offenses solely to
the Philadelphia Municipal Court Traffic Division. Id.
       Perfetto, however, is distinguishable because the defendant in that
case was charged, prosecuted and convicted of the summary offense in Traffic
Court after the Municipal Court was restructured and had jurisdiction to
adjudicate his Title 75 summary offense. In the present case the statutory
amendment did not occur until after Atkinson was charged, prosecuted and
convicted in Traffic Court of the summary offense under section 3111(a);
therefore, unlike Perfetto, the Commonwealth was not able to prosecute both
types of offenses together in Municipal Court. See Perfetto, at *31 (Dubow,
J., dissenting) (“once the legislature abolished Traffic Court and transferred
jurisdiction of summary traffic offenses to Municipal Court, one single court
had jurisdiction to adjudicate both summary and misdemeanor traffic
offenses.”).



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