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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 FEBRUARY 23, 2018

      Appellant, Thomas Tinsley, appeals from the order entered January 21,

2016, denying his motion to dismiss on double jeopardy grounds pursuant to

18 Pa.C.S. § 110. After careful review, we quash.

      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
      “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
J-A06028-17


      box of [Appellant’s] vehicle. On November 5, 2013, at a hearing
      in Philadelphia Traffic Court, [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 (two footnotes omitted).

      This case returns to us after we remanded to have the trial court comply

with Pa.R.Crim.P. 587(B), to clarify whether this Court had appellate

jurisdiction. Briefly, consistent with Commonwealth v. Taylor, 120 A.3d

1017 (Pa. Super. 2015), we remanded because we were unable to determine,

based on the trial court’s noncompliance with Rule 587(B), whether we could

exercise jurisdiction under Pa.R.A.P. 313 (relating to collateral orders) over

Appellant’s appeal from an order of the trial court denying his pretrial motion

to dismiss on double jeopardy grounds. Commonwealth v. Tinsley, ___

A.3d ___, 431 EDA 2016 (Pa. Super. filed July 18, 2017) (unpublished

memorandum).      As we explained in Taylor, an order denying a double

jeopardy motion is appealable as a collateral order as long as the motion is

not found to be frivolous by the lower court. Taylor, 120 A.3d at 1021-1022.

The requirement that a lower court renders a specific finding on frivolousness

is expressly mandated under Rule 587(B). Id. at 1022.




                                     -2-
J-A06028-17


      Following our remand, the trial court held a hearing on October 10,

2017, in compliance with Pa.R.Crim.P. 587(B).         At the conclusion of the

hearing, the trial court found Appellant’s motion to dismiss to be frivolous and

denied the motion on the record. N.T., 10/10/17, at 7. The trial court entered

an order on October 11, 2017, denying the motion to dismiss. Given the trial

court’s finding of frivolousness, we now conclude that the trial court’s order

denying the double jeopardy motion does not qualify as a collateral order

under Rule 313. Taylor, 120 A.3d at 1021. Accordingly, we must quash this

appeal for lack of jurisdiction.

      Additionally, we note that on October 13, 2017, Appellant filed a petition

for review of the trial court’s determination of frivolousness pursuant to

Pa.R.Crim.P. 587(B)(5) and Pa.R.A.P. 1573. Pa.R.Crim.P. 587(B)(5) provides

as follows:

      If the judge makes a finding that the motion is frivolous, the judge
      shall advise the defendant on the record that a defendant has a
      right to file a petition for review of that determination pursuant to
      Rule of Appellate Procedure 1573 within 30 days of the order
      denying the motion.

Pa.R.Crim.P. 587(B)(5). Pa.R.A.P. 1573(a) states:

      (a) General rule. Any party seeking review of a frivolousness
      determination by a court of common pleas under Pennsylvania
      Rule of Criminal Procedure 587 shall file a petition for review in
      the appellate court having jurisdiction over the matter. Review of
      a frivolousness determination under Pennsylvania Rule of Criminal
      Procedure 587 shall be governed by this chapter and ancillary
      provisions of these rules, except as otherwise prescribed by this
      rule. The time for filing is provided for in Pa.R.A.P. 1512(a)(1).




                                      -3-
J-A06028-17


Pa.R.A.P. 1573(a). We deny Appellant’s petition for review on the basis of the

trial court’s supplemental Pa.R.A.P. 1925(a) opinion filed November 29, 2017,

and this Court’s holding in Commonwealth v. Perfetto, 169 A.3d 1114 (Pa.

Super. 2017) (en banc).1

        Appeal quashed. Petition for review denied.2

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/18




____________________________________________


1   The Perfetto Court explained:

        [I]n the context of compulsory joinder, where a defendant is
        charged with a summary traffic violation and a misdemeanor, the
        Title 75 summary offense must be disposed of in a proceeding in
        the Philadelphia Municipal Court Traffic Division, which has
        jurisdiction exclusive of the Court of Common Pleas, and a
        separate proceeding must be held for the remaining, higher
        offenses.

Perfetto, 169 A.3d at 1124.

2In the event of further proceedings, the parties are directed to attach a copy
of the trial court’s opinion filed November 29, 2017.

                                           -4-
                                                                                     Circulated 01/30/2018 11:41 AM

                                                                                                       FILED
                          IN THE COURT OF COMMON PLEAS                                              NOV! 9 2017
                     FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                               Office of Judicial Recon
                        TRIAL DIVISION - CRIMINAL SECTION                                   Appeals/Post Trial

COMMONWEALTH OF PENNSYLVANIA                                 CP-51-CR-0011849-2013

                      v.                              ..
                                                             SUPERIOR COURT
             THOMAS TINSLEY                                  NO. 431 EDA 2016
                                                                                             --"I
                       SUPPLEMENTAL Pa.R.A.P. 1925(a) OPINION                       ��c) (     I
MAZZOLA, WILLIAM, J.                                         NOVEMBER

       The trial court submits this supplement to its Pa.R.A.P. 1925(a) Opinion of April 14,

2016, in compliance with this Court's order remanding the matter and directing the court to

comply with the requirements of Pa.R'Crim.P. 587(B) which rule governs the steps a court is

required to take where, as here, a defendant wishes to pursue an interlocutory appeal from a trial

court's order denying a pretrial motion to dismiss criminal charges on double jeopardy grounds.

The rule provides:

       (1) A motion to dismiss on double jeopardy grounds shall state specifically and
       with particularity the basis for the claim of double jeopardy and the facts that
       support the claim.
       (2) A hearing on the motion shall be scheduled in accordance with Rule 577
       (Procedures Following Filing of Motion). The hearing shall be conducted on the
       record in open court.
       (3) At the conclusion of the hearing, the judge shall enter on the record a
       statement of findings of fact and conclusions of law and shall issue an order
       granting or denying the motion.
       ( 4) In a case in which the judge denies the motion, the findings of fact shall
       include a specific finding as to frivolousness.
       (5) If the judge makes a finding that the motion is frivolous, the judge shall advise
       the defendant on the record that a defendant has a right to file a petition for review
       of that determination pursuant to Rule ofAppellate Procedure 1573 within 30
       days of the order denying the motion.
       (6) If the judge denies the motion but does not find it frivolous, the judge shall
       advise the defendant on the record that the denial is immediately appealable as a
       collateral order.

Id. The court had conducted a hearing on January 20, 2016, pursuant to subsections (1) and (2),


                                                 1
                                                                      .                           .
but neglected to comply with subsections (3), (4), (5) and/or (6). It, therefore, reheard the matter

on October 10, 2017) at which the defendant's presence was waived by agreement of the parties

and the court presented the factual and legal bases for the claims as presented in the defendant's

motion, as it had in its previous opinion, as its findings of fact and conclusions of law, allowing

defense counsel, of course, to submit any additional matters. One item that the Commonwealth

brought to the court's attention was a recent decision of this Court directly on point.

            THE COURT: ...
            The matter at issue is this Court's prior ruling on a defense motion to dismiss
       for double jeopardy under classical constitutional double jeopardy and Rules 109
       and 110 of the Rules of Criminal Procedure. That motion was litigated, and it was
       denied by this Court at a hearing on January 20, 2016, subsequently appealed,
       resulting in the remand opinion that I've stated.
            In compliance with that, the Court is required to put findings of facts and
       conclusions of law on the record. And the Court finds as follows, factually in this
       matter:
           That on September 3rd of2013 the defendant, while driving an automobile in
       the city and county of Philadelphia; ran a stop sign.
           Number two) as a consequence he was observed running a stop sign and
       stopped by the police.
           Number three, the defendant was issued a citation under the Motor Vehicle
       Code for the observed incident, a summary offense of running a stop sign.
           Fact number four, as a consequence of that stop, a search of the defendant's
       vehicle was conducted by the police and it revealed a loaded weapon in the
       automobile's glove box. The defendant was,therefore, in addition to the citation,
       arrested for weapons offenses based upon the Crimes Code and the Uniform
       Firearms Act.                                                       ·
           On September 19, 2013, the defendant attended a preliminary hearing on the
       weapons offenses and while not all charges were held for court, some of the
       charges were held for court, specifically possession of a firearm by person
       prohibited and firearms not to be carried without a license.
           On November 5, 2013 the defendant was adjudicated guilty in the
       Philadelphia Traffic Court for the Motor Vehicle Code violation which occurred
       on September 3, 2013 as aforesaid. The traffic violation for the running of the
       stop sign and the weapons offenses took place during the same criminal episode.
       The Commonwealth at all times relevant was aware of the charges in both the
       Philadelphia Traffic Court case and the Philadelphia Common Pleas Court case,
       the Criminal Division.
           On November 24, 2015 the aforesaid motion to dismiss under Rule 110 was
       filed claiming that the prosecution for the weapons offenses was barred by way of
       that statute.
           As I indicated on January 20, 2016, the motion to dismiss filed by the defense

                                                 2
        was denied. I reached the following legal conclusions:
            That the defendant was charged with a summary violation of the Motor
        Vehicle Code and found guilty while criminal charges were pending in this court.
        The current bill of information seeks prosecution for commission of a crime, not
        for violation of the Vehicle Code. Neither the double jeopardy clause of the
       United States Constitution or the Pennsylvania Constitution nor the relevant
        sections of the Pennsylvania Consolidated Statutes, Section 109, where a
       prosecution is barred by a former prosecution, neither of those barred the
       subsequent proceedings if they are grounded in violations of the Uniform
       Firearms Act where the defendant was previously placed in jeopardy only on a
       Motor Vehicle Code offense.
            The two events in which the defendant was accused of engaging are
       completely different activities that just happened to occur at the same time and
       involved the same instrumentality, one of them occurring instantaneously.jo wit,
       the stop sign violation, and the other, i.e., the weapon, was an ongoing offense.
       There is no logical relationship between the crimes of running a stop sign and
       violation of the Uniform Firearms Act. Those crimes are defined by separate
       statutes and are. intended to prevent different evils with no similarity of issues
       involved in proving these distinct offenses.
            While we do not know when or how the defendant came into possession of the
       weapon, the Commonwealth is not required to prove either nor how it got into the
       car. The only legal connection between the summary offense under the Motor
       Vehicle Code and the crimes in front of this Court were that they were not
       authorized. The only factual connection was that the car was used both to run the
       stop sign and to carry the weapon; and while the use of the vehicle is an essential
       element of the former, it is merely peripheral to the latter.
            The Court finds that under the relevant provisions and amendments as set out
       in the Superior Court's most recent opinion in Commonwealth v. Marc Perfetto,
       an opinion dated August 30, 2017, found in the Superior Court docket at number
       2479 EDA 2015 that with the peculiar circumstances in Philadelphia County, the
       existence of the Municipal Court, Traffic Court Division, and prosecution in this
       Court for the offenses as described in these conclusions of law does not violate
       the relevant statutes.
            Therefore, the defendant's claim is still denied, the motion to dismiss is still
       denied, and the Court finds that it's completely lacking in merit and is frivolous,
       and further appeal of this matter would be frivolous.

Notes of Testimony, Hearing Volume 1, October 10, 2017, pp. 2-7. The court then advised the
                                                                         .
defendant on the record that he had the right to file a petition for review of that determination

pursuant to Pa.R.A.P 1573 within 30 days. Id. pp. 8-9. The case the.court mentioned came

down after this court conducted the January 2016 hearing and submitted its original Rule 1925(a)

opinion but before the rehearing, and it clearly applies.



                                                  3
'l
     .r:

                         The Commonwealth of Pennsylvania appeals from the order entered July 13,
                     2015, granting Appellee Marc Perfetto's motion to dismiss, which asserted a
                     violation of Pennsylvania's compulsory joinder rule. See 18 Pa.CS.§ 1 JO. Subject
                     to certain jurisdictional exceptions, which will be explained herein, we hold that the
                     subsequent prosecution of an offense [driving under the influence] arising out of a
                     criminal episode that had triggered the former prosecution of a different [summary)
                     offense [of driving without lights when required] is barred where those multiple
                     offenses occur in the same judicial district. However, because ofjurisdictional
                     exceptions applicable to Philadelphia, the holding of the trial court is reversed.

               Commonwealth v. Perfetto, 2017 PA Super 281, 169 A.3d 1114, 1116 (2017) (en bane,

           Judge Dubow dissenting in which President Judge Bender and Judge Lazarus joined, filed

           August 30, 2017). "Therefore, in the context of compulsory joinder, where a defendant is

           charged with a summary traffic violation and a misdemeanor, the Title 75 summary offense must

           be disposed of in a proceeding in the Philadelphia Municipal Court Traffic Division, which has

           jurisdiction exclusive of the Court of Common Pleas, and a separate proceeding must be held for

           the remaining, higher offenses." Id A.3d at 1124.1

                      Wherefore, for the reason's stated herein and in the court's previous opinion, and

           Perfetto being Pennsylvania law at this time, the defendant's claim is patently both frivolous                      and
           completely lacking in merit and the court's denial of his motion should be affirmed.



                                                                                               BY THE COURT:




           I
             Perfettc's Petition for Allowance of Appeal is pending at Allocatur Docket No. 455 EAL 2017, along with,
           apparently, those offifteen other defendants'. As of this date, that docket lists as Related Cases/Same Jssue(s): 47 J, ·
           472, 473, 477, 478, 482, 485, 499, 501, 507, 510, 516, 517, 520, 523 & 526 EAL 2017, and all of the defendant's as
           the petitioners. The court has not examined all those cases, sensing that it's safe to assume that this Court rendered
           decisions in them consistent with that in Perfetto. Other pending allocatur petitions that appear to have something to
           do with§/ JO of which the court is presently aware are Commonwealth v: Rosas, PA Super. 1675 EDA 2015, Pa.                  I
                                                                                                                                       l
           513 EAL 2017, and Commonwealth v. Atkinson, PA Super. 1562 EDA 2016, Pa. 499 EAL 2·011.                     ·               I

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                                                                                                                                       �·
                                        IN THE COURT OF COMMON PLEAS

                                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

                                       TRIAL DIVISION - CRIMINAL SECTION

                COMMONWEALTH OF PENNSYLVANIA                 :    CP-51-CR-0011849·2013

                                         vs.                     SUPERIOR COURT
                                                                 NO. 431 EDA 2016
                               Thomas Tinsley



                                        PROOF OF SERVICE

       I hereby certify that I am this day serving the forgoing Court Order upon the persons, and in the manner
indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114.



Counsel:                               Jonathan R. Altschuler, Esq.
                                        1500 JFK Blvd. Suite i850
                                        Philadelphia, PA 19102
Type of Service: ( ) Personal (X) First Class Mail Other, please specify:------

                   '
Philadelphia District Attorney:         Hugh J. Burns
                                        District Attorney's Office
                                        Three South Penn Square
                                        Philadelphia PA 19107-3499
Type of Service: ( ) Personal ( X) First Class Mail Other, please specify:             _


Additional Counsel/Party:              Natasha Lowe, Esq.
                                       Supervisor, PCRA/Appeal Unity
                                       #206 CJC
                                       Philadelphia, PA 19107
Type of Service: (} Personal () First Class Mail Other, please specify: Inter-Office
