J-A06028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT
                                                            OF PENNSYLVANIA
                             Appellee

                        v.

    THOMAS TINSLEY,

                             Appellant                      No. 431 EDA 2016


                      Appeal from the Order January 21, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011849-2013


BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED DECEMBER 16, 2019

        Thomas Tinsley appeals from the trial court’s order denying his motion

to dismiss based on the compulsory joinder principles of 18 Pa.C.S. § 110.

This appeal is on remand from the Supreme Court of Pennsylvania, which

granted Appellant’s petition for allowance of appeal and vacated our prior

decision1    quashing    Appellant’s     appeal   “in   light   of   [its]   decision   in

Commonwealth v. Perfetto, [207 A.3d 812 (Pa. 2019)].” Supreme Court

Order, 6/27/19, at 1. After careful consideration, we affirm.

        The trial court summarized the factual and procedural history of this

case as follows:

        According to the arresting officer, on September 3, 2013, he saw
        [Appellant] run a stop sign and pulled him over, at which time he

1   Commonwealth v. Tinsley, 185 A.3d 1141, 431 EDA 2016 (Pa. Super.
filed February 23, 2018) (unpublished memorandum).
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      “recovered” a loaded firearm. He issued [Appellant] a citation for
      running a stop sign and arrested him for possession of the gun.
      [Appellant] was charged with Carrying a Firearm While Prohibited,
      Without a License, and in Public[,] and Possession of an
      Instrument of Crime.2 Due to the fact that, in his testimony, the
      officer did not specify, and his records did not indicate, exactly
      how or from where the gun was recovered, nor that it was used
      in a criminal fashion, the latter two charges were dismissed for
      lack of evidence.      At a hearing on [Appellant’s] motion to
      suppress, the same officer testified about the incident in much
      greater detail, in particular that he found the weapon in the glove
      box of [Appellant’s] vehicle. On November 5, 2013, at a hearing
      in [Municipal Court, Traffic Division2], [Appellant] pled not guilty
      but was convicted of disregarding a stop sign. [The motion to
      suppress] was denied on April 23, 2014, and on November 24,
      2015, he filed [a] motion to dismiss[,] claiming that his
      prosecution for the weapons offenses was barred. At the end of
      the hearing on the motion, the court scheduled the case “must be
      tried” for May 23, 2016, this appeal was filed the next day, and it
      does not appear that [Appellant] has requested a stay of
      proceedings.

            275 Pa.C.S. § 3323(b); 18 Pa.C.S. § 6105(a)(1),
            6106(a)(1), 6108 & 907(a).

Trial Court Opinion, 4/14/16, at 1-2 (some footnotes omitted).

      Appellant presented the following issue for our review:

      1.    Did the lower court commit an error of law when, in denying
            Appellant’s Motion to Dismiss for Double Jeopardy based on
            18 Pa.C.S. § 110, it cited to and relied upon cases
            interpreting a prior version of Section 110, which was
            amended in 2002, and which now requires the
            Commonwealth to join offenses that occurred within one
            judicial district?


2 As our Supreme Court explained in Perfetto, effective June 19, 2013, the
Philadelphia Traffic Court was merged into Philadelphia Municipal Court, which
was then reorganized into two divisions: General Division and Traffic Division.
Perfetto, 207 A.3d at 816 n.1.          Because Appellant went before the
Philadelphia Municipal Court on November 5, 2013, he was in the Traffic
Division of the Philadelphia Municipal Court.


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Appellant’s Brief at 2 (emphasis in original).

      Our standard of review of issues concerning the compulsory joinder rule

is plenary. Commonwealth v. Reid, 35 A.3d 773, 776 (Pa. Super. 2012).

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:

            (1) The former prosecution resulted in an acquittal or in a
            conviction ... 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(1)(ii) (amended 2002).

      In Perfetto, the defendant was cited for a summary offense and

charged with three counts of driving under the influence (“DUI”). Perfetto,

207 A.3d at 815. The defendant was found guilty of the summary offense in

the Philadelphia Municipal Court, Traffic Division.     Id.   After a preliminary

hearing, the defendant’s DUI charges were bound over for trial.         Id.   The

defendant filed a motion to dismiss based on the compulsory joinder rule,

which the trial court granted, and dismissed the defendant’s DUI charges. Id.

The Commonwealth appealed, and a divided en banc panel of our Court


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reversed the trial court, concluding that the defendant’s summary traffic

offense could be tried only in the Traffic Division of the Municipal Court; thus,

the defendant’s subsequent prosecution for his DUI charges did not run afoul

of the compulsory joinder rule. Commonwealth v. Perfetto, 169 A.3d 1114

(Pa. Super. 2017) (en banc). Our Supreme Court granted the defendant’s

petition for allowance of appeal. On appeal, the Supreme Court reversed this

Court’s en banc decision, noting that while the Traffic Division of the

Philadelphia Municipal Court has limited jurisdiction to “consider only summary

traffic offenses,” the General Division of the Municipal Court “clearly and

unambiguously ... has jurisdiction to adjudicate any matter that is properly

before [it].” Perfetto, 207 A.3d at 823. Thus, the Court concluded that the

Commonwealth was precluded from prosecuting the defendant for his pending

DUI charges under Section 110(1)(ii), where all of the defendant’s offenses

could have been adjudicated in the General Division of the Municipal Court.

Id.

      We further note that in Commonwealth v. Johnson, ___ A.3d ____,

2019 PA Super 312 (Pa. Super. filed October 16, 2019), this Court recently

addressed an issue similar to that presented in this case in light of Perfetto.

In Johnson, the defendant was charged with driving with a suspended

license, possession of heroin, and possession with intent to deliver heroin

(“PWID”). Before bringing the drug charges in the Court of Common Pleas of

Philadelphia, the Commonwealth tried and convicted the defendant of the



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summary offense in the Philadelphia Municipal Court (Traffic Division). Id. at

*1. The defendant moved to dismiss the drug charges on the grounds that

the Commonwealth was required to try all of his offenses simultaneously. The

defendant asserted that the Commonwealth’s failure to do so violated 18

Pa.C.S. § 110 and, as a result, put him in double jeopardy. Id. Applying this

Court’s en banc decision in Commonwealth v. Perfetto, 169 A.3d 1114 (Pa.

Super. 2017) (en banc), the trial court refused to dismiss either of the drug

charges. Id. The trial court’s analysis was correct at the time. However, as

noted, on April 26, 2019, while the appeal in Johnson was pending, the

Supreme Court of Pennsylvania reversed this Court’s en banc Perfetto

decision. Perfetto, 207 A.3d at 812. As the Johnson Court observed:

           The [Perfetto] Court concluded that 18 Pa.C.S.A.
     § 110(1)(ii) barred the Commonwealth from further prosecuting
     Perfetto’s offense of DUI. The Supreme Court reasoned that all of
     Perfetto’s alleged offenses arose from the same criminal episode,
     occurred within the same judicial district, the prosecutors knew of
     the other offenses when they tried the case in the municipal court,
     and the Philadelphia Municipal Court’s General Division had
     original jurisdiction over both the summary offense and the DUI
     offense. Therefore, the Commonwealth needed to try all of its
     charges in the municipal court.

Johnson, ___ A.3d at ___, 2019 PA Super 312 at *2.

     Applying Perfetto to the facts of the case before it, the Johnson Court

concluded that the PWID charge was not barred by 18 Pa.C.S. § 110 or the

holding in Perfetto. In so doing, this Court explained:

            Section 112 provides, in relevant part, that a former
     “prosecution is not a bar within the meaning of section 109 of this
     title ... through section 111 of this title ... [if t]he former


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     prosecution was before a court which lacked jurisdiction over the
     defendant or the offense.” 18 Pa.C.S.A. § 112(1). Clearly, this
     provision is an exception to Section 110, because the exception
     applies to Sections 109 – 111. Thus, we ask whether Johnson’s
     former prosecution occurred before a court that lacked jurisdiction
     over either him or the possession-of-heroin-with-intent-to-deliver
     [charge].

            Undoubtedly, the municipal court possessed in personam
     jurisdiction over Johnson. Instead, the Commonwealth claims
     that court lacked subject-matter jurisdiction over the charge of
     possession of heroin with intent to deliver.

            Unlike courts of common pleas with their “unlimited original
     jurisdiction in all cases,” Pa. Const. Art. V, § 5(b), the Philadelphia
     Municipal Court has limited, original, subject-matter jurisdiction.
     Our state constitution established the municipal court. “In the
     City of Philadelphia there shall be a municipal court ... and the
     jurisdiction shall be as provided by law.” Pa. Const. Art. V, § 6(c).

            The Philadelphia Municipal Court’s criminal, subject-matter
     jurisdiction extends to “summary offenses, except those arising
     out of the same episode or transaction involving a delinquent act
     for which a petition alleging delinquency is filed ...” and “criminal
     offenses by any person (other than a juvenile) for which no prison
     term may be imposed or which are punishable by imprisonment
     for a term of not more than five years ....” 42 Pa.C.S.A.
     § 1123(a)(1),(2). All other criminal offenses occurring in the First
     Judicial District of Pennsylvania come within the unlimited,
     original, subject-matter of the Court of Common Pleas of
     Philadelphia.

           Thus, if a possession-of-heroin-with-intent-to-deliver
     charge falls outside of these parameters, then original, subject-
     matter jurisdiction lies with the trial court, as opposed to the
     municipal court. We must examine the maximum length of a
     potential sentence for possession of heroin with intent to deliver,
     because, 42 Pa.C.S.A. § 1123(a)(2) ties the Philadelphia Municipal
     Court’s jurisdiction to the maximum length of a criminal offense’s
     incarceration.     The jurisdictional threshold is five years’
     incarceration or less. Any crime punishable by more than five
     years’ incarceration is within the original jurisdiction of the court
     of common pleas.



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Johnson, ___ A.3d at ___, 2019 PA Super 312 at *3.

     This Court further explained that the PWID charge was a felony, and

upon conviction thereof the defendant could be sentenced to imprisonment

for up to fifteen years. Id. at ___, 2019 PA Super 312 at *4. As a result, the

Johnson Court concluded that prosecution for the PWID charge was not

barred by 18 Pa.C.S. § 110. The Court explained:

            Because the maximum possible sentence for the charge of
     [PWID] exceeds the jurisdictional limits of the Philadelphia
     Municipal Court, Johnson’s former prosecution for driving with a
     suspended license occurred “before a court which lacked
     jurisdiction over the ... offense” of [PWID]. 18 Pa.C.S.A. § 112(1).
     Accordingly, the court of common pleas may properly assert its
     separate, original jurisdiction over that charge under Section 112.

           Indeed, the Supreme Court of Pennsylvania left room for a
     case such as this when it decided [Perfetto]. The [Perfetto]
     Court stated that Perfetto’s “former prosecution for his summary
     offense was before a court (namely, the Philadelphia Municipal
     Court) that had jurisdiction to adjudicate all of [his] charges, albeit
     in the court’s General Division.” [Perfetto], 207 A.3d at 823
     (emphasis added).          Therefore, the Court rejected the
     Commonwealth’s claim that the exception in Section 112(1)
     applied.

            Unlike [Perfetto], where the summary-offense prosecution
     occurred before a court that also had jurisdiction over the DUI
     charge, Johnson’s case has not come before a court with
     jurisdiction over the [PWID] offense. Simply stated, he has not
     yet been in jeopardy for that offense, because the Philadelphia
     Municipal Court lacked jurisdiction to adjudicate it.        The
     Commonwealth has not placed him “in jeopardy of life or limb”
     regarding that offense. Pa. Const. Art. I, § 10. It may do so for
     the first time in the court of common pleas.




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Johnson, ___ A.3d at ___, 2019 PA Super 312 at *4. Accordingly, this Court

affirmed the trial court’s refusal to dismiss the charge of PWID on the basis of

18 Pa.C.S. § 110 and Perfetto. Id.

      We find Johnson to be dispositive in the matter sub judice. As outlined

previously, Appellant was charged with disregarding a stop sign, possession

of firearms prohibited, and firearms not to be carried without a license: all

charges resulted from a single criminal episode. Appellant was convicted of

disregarding a stop sign in Philadelphia Municipal Court, Traffic Division, on

November 5, 2013.       The remaining firearms charges were as follows:

possession of firearm prohibited, 18 Pa.C.S. § 6105(a)(1), graded as a felony

of the second degree,3 and firearm not be carried without a license, 18 Pa.C.S.

§ 6101(a)(1), graded as a felony of the third degree. Criminal Complaint,

9/4/13, at 1. A felony of the second degree is punishable by imprisonment

for up to ten years, and a felony of the third degree is punishable by

imprisonment up to seven years. 18 Pa.C.S. § 1103. Thus, convictions for

each of these crimes subjects the defendant to sentences of imprisonment in

excess of five years.   As a result, the Philadelphia Municipal Court lacked

jurisdiction to adjudicate these charges. Johnson, ___ A.3d at ___, 2019 PA




3  We note that in various documents in the record, the charge of possession
of a firearm prohibited was erroneously graded as a misdemeanor one. After
review of the record, we are satisfied that the proper grading of this offense
is as a felony two. See Criminal Complaint, 9/4/13, at 1 (indicating that the
charge at 18 Pa.C.S. § 6105 was for possession of firearm prohibited – a
former conviction, and grading the offense as a felony of the second degree).


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Super at *3; 42 Pa.C.S. § 1123(a)(1),(2) (The Philadelphia Municipal Court’s

criminal, subject-matter jurisdiction extends to ...“criminal offenses by any

person (other than a juvenile) for which no prison term may be imposed or

which are punishable by imprisonment for a term of not more than five

years ....”).   Instead, the jurisdiction for these charges lies in the court of

common pleas. Johnson, ___ A.3d at ___, 2019 PA Super at *3. Thus, the

firearms charges could not have been brought in the Philadelphia Municipal

Court.

        Therefore, the trial court’s determination does not run afoul of the

holding in Perfetto, and the trial court properly denied Appellant’s motion to

dismiss. We therefore affirm the trial court’s refusal to dismiss the firearms

charges.

        Order affirmed.

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

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/19




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