J-S19016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

FRANCISCO ALAMO

                            Appellant                    No. 1289 EDA 2015


                   Appeal from the Order Entered April 1, 2015
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0009987-2014


BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 13, 2016

        Appellant Francisco Alamo appeals from the April 1, 2015 order of the

Court of Common Pleas of Philadelphia County (“trial court”), denying his

pretrial motion to dismiss on compulsory joinder grounds charges for driving

under the influence of a controlled substance (“DUI”).1 After careful review,

we reverse.

        The facts and procedural history of this case are undisputed. On May

30, 2014, Appellant was observed driving a green Honda at a high rate of

speed on the 1800 block of South 7th Street in Philadelphia, drifting towards

parked vehicles. After stopping Appellant, police officers observed Appellant

exhibiting signs of intoxication.        Subsequently, Appellant was arrested for

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1
    75 Pa.C.S.A. § 3802(d)(1) and (2).
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DUI and was issued citations for the summary offenses of careless driving

(75 Pa.C.S.A. § 3736) and driving without a license (75 Pa.C.S.A. § 1501).

Because Appellant failed to plead either “guilty” or “not guilty” on the

summary offenses within 10 days, the traffic division of the municipal court

entered a verdict of guilty in absentia and imposed a fine.

       Thereafter, following a preliminary hearing, Appellant was held for trial

on the DUI charges under Section 3802(d). On March 25, 2015, Appellant

filed a pretrial motion to dismiss the DUI charges under Section 110 of the

Crimes Code, 18 Pa.C.S.A. 110, relating to compulsory joinder.         Appellant

argued that the Commonwealth was required to prosecute him for the DUI

charges contemporaneously with the summary offenses.                 Specifically,

Appellant argued that the DUI charges arose from the same criminal episode

as the summary offenses for which he was convicted in absentia. Appellant

also   argued that,    because    the   May 30, 2014 incident occurred in

Philadelphia, prosecutors were aware of all the resulting criminal charges

brought against Appellant. Finally, Appellant argued that prosecution for the

DUI charges would occur in the same judicial district as the prosecution for

the summary offenses, as both the trial court and the municipal court fall

within Pennsylvania’s First Judicial District.

       The trial court held a hearing on Appellant’s motion to dismiss. At the

hearing,    in   response   to   Appellant’s     Section   110   challenge,   the

Commonwealth argued only that Section 110 did not apply to summary

offenses. In support of its contention, the Commonwealth principally relied

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on Commonwealth v. Beatty, 455 A.2d 1194 (Pa. 1983).              Following the

hearing, the trial court denied Appellant’s motion to dismiss.        Appellant

timely appealed to this Court.

       On appeal,2 Appellant raises a single issue for our review. Appellant

contends that the trial court erred in denying his motion to dismiss under

Section 110(1)(ii) because the Commonwealth failed to prosecute him for

the DUI offenses contemporaneously with the summary offenses for which

he was found guilty in absentia.

       As our Supreme Court explained in Fithian, Section 110, known as the

compulsory joinder rule, “is a legislative mandate that a subsequent

prosecution for a violation of a provision of a statute that is different from a

former prosecution, or is based on different facts, will be barred in certain




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2
  We have jurisdiction over interlocutory appeals arising from a trial court’s
denial of a motion to dismiss based on compulsory joinder.
Commonwealth v. Shull, 811 A.2d 1 (Pa. 2002); see Commonwealth v.
Barber, 940 A.2d 369, 376 (Pa. Super. 2007) (noting that a defendant is
entitled to an immediate interlocutory appeal as of right from an order
denying a motion to dismiss on compulsory joinder grounds). Compulsory
joinder rule implicates a question of law and, as a result, our review is
plenary. Thus, “[a]s with all questions of law, the appellate standard of
review is de novo.” Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa.
Super.    2008)    (citations  and    quotations    marks    omitted);    see
Commonwealth v. Fithian, 961 A.2d 66, 71 (Pa. 2008) (noting that “[a]s
the issue before our Court raises a question of law, our standard of review is
de novo, and our scope of review is plenary.”).




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circumstances.”3       Fithian, 961 A.2d at 71.        Section 110, provides in

pertinent 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:

          (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[4] as the
              former prosecution unless the court ordered a
              separate trial of the charge of such offense[.]

18 Pa.C.S.A. § 110 (emphasis added).             Section 110(1)(ii) contains four

prongs which, if met, preclude a subsequent prosecution because of 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;
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3
  Section 110 serves a twin purpose. First, it protects a defendant from
governmental harassment of being subjected to successive trials for offenses
stemming from the same criminal episode. Second, it assures finality
without unduly burdening the judicial process by repetitious litigation.
Commonwealth v. Failor, 770 A.2d 310, 313 (Pa. 2001).
4
  Section 110(1)(ii) was amended in 2002 to substitute “occurred within the
same judicial district as the former prosecution” for “was within the
jurisdiction of a single court.”



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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 offenses occurred within the same judicial
              district as the former prosecution.

Commonwealth v. Nolan, 855 A.2d 834, 839 (Pa. 2004) (citation

omitted). Instantly, the first three prongs of the compulsory joinder rule are

not at issue.5 Therefore, we confine our analysis to the fourth prong as it is

implicated by the Commonwealth’s reliance on Beatty for the proposition

that Section 110 does not apply to summary offenses.

       Beatty is unavailing here because it is based on a prior version of

Section 110(1)(ii). As our Supreme Court explained in Commonwealth v.

Geyer, 687 A.2d 815 (Pa. 1996), the holding in Beatty was based on the

prior version of Section 110(1)(ii), which barred prosecution for a second

offense where the subsequent prosecution “was within the jurisdiction of

a single court.” Geyer, 687 A.2d at 817 (emphasis added). Thus, under

the   prior    version     of   Section        110(1)(ii),   summary   offenses   and

misdemeanors/felonies were not within the jurisdiction of a single court.6



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5
  We need not discuss these prongs as they have been satisfied. First,
Appellant was convicted of two summary offenses in absentia. Second, the
instant prosecution for DUI offenses arose from the same criminal episode as
the summary offenses. Third, the Commonwealth was aware of the DUI
charges when Appellant was found guilty for the summary offenses.
6
 We note that the Court in Geyer determined that Beatty did not hold that
Section 110, as a rule, was inapplicable to summary offenses. Geyer, 687
A.2d at 817.



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       As noted earlier, the legislature deleted the language “within the

jurisdiction of a single court” and replaced it with “occurred within the same

judicial district.”7    See 18 Pa.C.S.A. § 110(1)(ii).      This amendment to

Section 110(1)(ii) resulted in broader language that effectively eliminated

any ruling, such as in Beatty, that relied upon the much narrower

“jurisdiction of a single court” language present in the prior version of

Section 110(1)(ii). Accordingly, we reject the Commonwealth’s reliance on

Beatty and conclude that the trial court erred in the case sub judice in

denying Appellant’s motion to dismiss on compulsory joinder grounds.

Specifically, as Appellant correctly notes, the fourth prong of the compulsory

joinder rule is met here because the traffic division of the municipal court

falls within the same judicial district as the trial court—both are in the First

Judicial District of Pennsylvania.8

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7
  Although the term “judicial district” is not defined in the Crimes Code, it is
defined in the Judicial Code, which defines judicial district as “[a] district
established by section 901 [42 Pa.C.S.A. § 901] (relating to judicial districts)
for the election of one or more judges of the court of common pleas.” 42
Pa.C.S.A. § 102. Section 901, in turn, provides “[t]he Commonwealth is
divided into 60 judicial districts” and lists the 60 judicial districts, which to a
great extent, correspond directly with the geographic boundaries of the
Commonwealth’s counties. Fithian, supra.
8
  Our conclusion is consistent with, and supported by, accepted criminal
practice. Specifically, the Comment to Pa.R.Crim.P. 400, relating to means
of instituting proceedings in summary cases, provides:
       If one or more of the offenses charged is a misdemeanor, felony,
       or murder, the case is a court case (see Rule 103) and proceeds
       under Chapter 5 of the rules. Ordinarily, any summary offenses
(Footnote Continued Next Page)


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         Furthermore, it is settled that the burden to consolidate trials must be

placed on the Commonwealth.               Failor, 770 A.2d at 315.    As the Court

highlighted, case law

         countenance[s] against waiver unless the defendant has taken
         some sort of affirmative action to separate the prosecutions
         pending against him. These cases strongly suggest that the
         burden to protect a defendant from vexatious litigation and to
         conserve judicial resources rests squarely on the shoulders of
         the Commonwealth and thus, it is the Commonwealth’s burden,
         rather than the defendant’s, to move for consolidated trials.

Failor, 770 A.2d at 314-15 (emphasis added).             Here, our review of the

record reveals that Appellant did not take any affirmative steps to separate

the prosecutions for the summary and misdemeanor DUI offenses as

evidenced by his failure to respond to the summary citations or to oppose

consolidation for which the Commonwealth never moved.                Accordingly, it

cannot be argued that Appellant somehow waived his right to a consolidated

trial.    Id. (“Mere silence by the defendant is insufficient to find that a

defendant has affirmatively acted to block consolidation and therefore,

waived a claim under Section 110.”).

         In light of the foregoing, we reverse the trial court’s order denying

Appellant’s motion to dismiss the DUI charges under Section 110.

         Order reversed.

                       _______________________
(Footnote Continued)

         in such a case, if known at the time, must be charged in the
         same complaint as the higher offenses and must be disposed of
         as part of the court case.
Pa.R.Crim.P. 400.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016




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