J-A15034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

GARY GARNETT JORDAN

                            Appellant               No. 1392 EDA 2015


                      Appeal from the Order April 13, 2015
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014422-2014


BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED JULY 18, 2016

        Appellant Gary Garnett Jordan (“Appellant”) appeals from the order

entered April 13, 2015 in the Philadelphia County Court of Common Pleas

denying his Motion to Dismiss with Prejudice Pursuant to 18 Pa.C.S. § 110

(“Motion to Dismiss”). After careful review, we affirm.

        The pertinent facts and procedural posture of this matter are as

follows. On November 28, 2013, police arrested Appellant and charged him

with driving under the influence (“DUI”),1 a misdemeanor, and careless

driving,2 a summary offense. On January 30, 2014, to avoid points on his

license, Appellant pleaded guilty in Municipal Court to disregarding a traffic
____________________________________________


1
    75 Pa.C.S. § 3802.
2
    75 Pa.C.S. § 3714.
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device.3 The DUI charge was listed in the Municipal Court Criminal Division,

which conducted a trial on October 1, 2014.         The Municipal Court found

Appellant guilty of DUI, and Appellant filed a timely demand for a trial de

novo in the Court of Common Pleas.

        Prior to the trial de novo, Appellant filed his Motion to Dismiss, which

the trial court denied on April 13, 2015. Appellant filed a timely notice of

appeal on May 7, 2015.4 The trial court filed its Pa.R.A.P. 1925(a) opinion

on August 19, 2015.5

____________________________________________


3
    75 Pa.C.S. § 3111.
4
  This Court has explained that a claim regarding compulsory joinder
pursuant to 18 Pa.C.S. § 110, although interlocutory, is immediately
appealable:

        “It is well settled in Pennsylvania that a defendant is entitled to
        an immediate interlocutory appeal as of right from an order
        denying a non-frivolous motion to dismiss on state or federal
        double jeopardy grounds.” Commonwealth v. Calloway, []
        675     A.2d    743, 745      n.   1   ([Pa.Super.]1996)    (citing
        Commonwealth v. Savage, [] 566 A.2d 272, 275
        ([Pa.Super.]1989)). 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 similarly subject to immediate appeal.
        Commonwealth v. Bracalielly, [] 658 A.2d 755 ([Pa.]1995),
        and     Commonwealth         v.   Schmidt,     919     A.2d    241
        (Pa.Super.2007).

Commonwealth v. Barber, 940 A.2d 369, 376 (Pa.Super.2007).
5
 The trial court did not order, and Appellant did not file, a statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).




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      Appellant raises the following claim for review:

      Did not the lower court err in denying [A]ppellant’s motion to
      dismiss pursuant to 18 Pa.C.S. § 110 where [A]ppellant had
      previously been convicted of an offense which arose from the
      same criminal episode as the offense in the instant case?

Appellant’s Brief, p. 3.

      Appellant claims the trial court erred by denying his Motion to Dismiss.

See Appellant’s Brief, pp. 6-15.     Specifically, he claims 18 Pa.C.S. § 110

requires joinder of all charges involved in the same transaction, and that the

Commonwealth’s failure to prosecute his misdemeanor DUI at the same time

and in the same court where he pleaded guilty to a summary traffic offense

requires dismissal of the DUI charge. Id. He is incorrect.

      A claim regarding compulsory joinder pursuant to 18 Pa.C.S. § 110

raises a question of law which we review under a de novo standard of review

and a plenary scope of review. Commonwealth v. Fithian, 961 A.2d 66,

71 n.4 (Pa.2008); see also Commonwealth v. Barber, 940 A.2d 369, 376

(Pa.Super.2007).

      The Crimes Code provides, in relevant part:

      § 110. When prosecution barred by former prosecution for
      different offense

      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:

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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. As our Supreme Court has explained:

     Section 110(1)(ii) . . . contains four requirements which, if met,
     preclude a subsequent prosecution due to a former prosecution
     for a different offense:

        (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.

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

omitted).       “The policies served by the statute are two-fold: to protect

accused persons from governmental harassment of undergoing successive

trials for offenses stemming from the same episode, and to promote judicial

economy and finality by avoiding repetitious litigation.” Commonwealth v.

George, 38 A.3d 893, 896 (Pa.Super.2012).

     “[T]he Supreme Court of Pennsylvania has [] stated unequivocally that

the compulsory joinder requirement of 18 Pa.C.S.[] § 110 is inapplicable

where   .   .    .   the   offense   first   prosecuted   was   a   summary   one.”


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Commonwealth v. Barber, 940 A.2d 369, 379 (Pa.Super.2007) (quoting

Commonwealth v. Caufman, 662 A.2d 1050, 1051 (Pa.1995)); see also

Commonwealth v. Taylor, 522 A.2d 37 (Pa.1987) (“[The Supreme

Court’s] interpretation of section 110(1)(ii) . . . allows a summary offense to

be disposed of prior to the prosecution of a misdemeanor.”). This Court has

noted that “the Supreme Court of Pennsylvania [has] announced that the

compulsory joinder statute requires all summary offenses based on the same

conduct to be prosecuted in a single proceeding, not that all offenses, both

summary and nonsummary, must be prosecuted in a single proceeding.”

Barber, 940 A.2d at 379 (citing Commonwealth v. Failor, 770 A.2d 310,

313 (Pa.2001)) (emphasis in original); Commonwealth v. Geyer, 687 A.2d

815, 817 (Pa.1996) (discussing Commonwealth v. Breitegan, 456 A.2d

1340, 1341 (Pa.1983) for the proposition that Section 110 does not bar the

prosecution of a misdemeanor after a defendant enters a guilty plea to

summary traffic citations arising from the same criminal episode).

      As the Supreme Court has explained:

      The disposition of a summary offense in a traffic matter prior to
      the trial of a misdemeanor or felony does not present the type of
      governmental harassment of a defendant that would offend
      double jeopardy concerns. Additionally, judicial economy is not
      served by requiring our Courts of Common Pleas to dispose of
      these matters which are regularly entrusted to the district
      justices for disposition. It is fundamental that a rule of law
      should not be applied where its application fails to serve the
      purposes for which it was designed.

Commonwealth v. Beatty, 455 A.2d 1194, 1198 (Pa.1983) (footnote and

internal citation omitted).

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      Here, Appellant was not tried separately for multiple summary

offenses stemming from the same criminal episode.       Instead, Appellant

pleaded guilty to a summary traffic violation and then was prosecuted for a

misdemeanor DUI.        Section 110 does not bar such prosecution, and

Appellant’s argument to the contrary fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2016




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