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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :     IN THE SUPERIOR COURT OF
                                              :           PENNSYLVANIA
                       v.                     :
                                              :
KEVIN FORMAN,                                 :            No. 214 EDA 2018
                                              :
                            Appellant         :


                 Appeal from the Order Entered November 20, 2017,
                in the Court of Common Pleas of Philadelphia County
                  Criminal Division at No. CP-51-CR-0003805-2014


BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         FILED APRIL 26, 2019

        Kevin     Forman    filed   this   interlocutory   appeal   challenging   the

November 20, 2017 order entered in the Court of Common Pleas of

Philadelphia County that denied his motion to dismiss pursuant to the

compulsory joinder rule found at 18 Pa.C.S.A. § 110(1)(ii).1 In light of this


1   With respect to our jurisdiction over this appeal,

                [i]t 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. 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. Barber, 940 A.2d 369, 376 (Pa.Super. 2007), appeal
denied, 960 A.2d 835 (Pa. 2008) (internal citations and quotation marks
omitted).
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court’s en banc decision in Commonwealth v. Perfetto, 169 A.3d 1114

(Pa.Super. 2017) (en banc), appeal granted, 182 A.3d 435 (Pa. 2018), we

affirm and remand.

      The trial court set forth the following procedural history:

            Appellant was charged with Possession of a Firearm
            Prohibited, 18 Pa.C.S.[A.] § 6105 [(graded as a
            second-degree felony)], Carrying a Firearm Without a
            License, 18 Pa.C.S.[A.] § 6106 [(graded as a
            third-degree felony)], Carrying a Firearm on a Public
            Street, 18 Pa.C.S.[A.] § 6108 [(graded as a
            first-degree misdemeanor)], Knowing and Intentional
            Possession of a Controlled Substance, 35 P.S.
            § 780-113(A)(16[) (graded as a first-degree
            misdemeanor)], and possession of an instrument of
            crime, generally, 18 Pa.C.S.[A.] § 907 [(graded as a
            first-degree misdemeanor)]. Following [a]ppellant’s
            apprehension, in addition to the above charges,
            authorities issued summary traffic tickets[2] to
            [a]ppellant arising out of the same incident underlying
            the above criminal charges. Those tickets were
            disposed of by [a]ppellant when he appeared before
            this Court.

            Based on the disposition of the summary traffic
            tickets, [a]ppellant filed a Motion to Dismiss the
            criminal charges. He asserted that pursuant to
            18 Pa.C.S.[A.] § 110, he is entitled to a discharge of
            the criminal matters because of the disposition of the
            tickets. He claims that he is entitled to such relief
            because Section 110 requires that every charge
            arising out of the same criminal matter be tried
            together and therefore, because the summary traffic
            tickets have already been disposed of, Section 110
            prohibits the Commonwealth from trying him on the
            above-listed criminal matters.

2 The record reflects that appellant was issued one citation for careless driving
in violation of 75 Pa.C.S.A. § 3714, to which he later pled guilty and received
a $155 fine. (See appellant’s “memorandum of law in support of motion to
dismiss prosecution pursuant to 18 P.S. section 110,” at 5 and Exhibit A.)


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            On November 20, 2017, this Court denied
            [a]ppellant’s motion after which [a]ppellant filed an
            interlocutory appeal. He thereafter filed a requested
            Pa.R.A.P. 1925(b) [s]tatement of [errors complained
            of on appeal].

Trial court opinion, 6/11/18 at 1-2.    Subsequently, the trial court filed its

Rule 1925(a) opinion.

      Appellant raises the following issue for our review.

            DID THE TRIAL COURT ERR IN DENYING APPELLANT’S
            MOTION TO DISMISS THIS PROSECUTION PURSUANT
            TO 18 P.S. §110 WHERE THE COMMONWEALTH
            FAILED TO JOIN IN ONE PROSECUTION ALL
            OFFENSES ARISING FROM THE SAME CRIMINAL
            EPISODE AND OCCURRING WITHIN THE SAME
            JUDICIAL DISTRICT, AND WHERE THE APPELLANT
            WAS CHARGED AND FOUND GUILTY OF A SUMMARY
            TRAFFIC OFFENSE PRIOR TO THE COMMENCEMENT
            OF TRIAL ON THE RELATED MISDEMEANOR AND
            FELONY CHARGES FORMING THE BASIS FOR THE
            INSTANT PROSECUTION[?]

Appellant’s brief at 4.

      Our standard of review of issues concerning the compulsory joinder rule,

18 Pa.C.S.A. § 110, is plenary. Commonwealth v. Reid, 35 A.3d 773, 776

(Pa.Super. 2012). The compulsory joinder rule bars a subsequent prosecution

if each of the following is met:

            (1) the former prosecution resulted in an acquittal or
            conviction; (2) the current prosecution was based on
            the same criminal conduct or arose from the same
            criminal episode; (3) the prosecutor in the subsequent
            trial was aware of the charges before the first trial;
            and (4) all charges [are] within the same judicial
            district as the former prosecution.



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Reid, 77 A.3d at 582 (citation omitted; brackets in original).

      Here, no dispute exists that appellant’s prosecution on the summary

traffic offense resulted in a conviction, that the prosecution on the

misdemeanors and felonies would be based on the same criminal conduct or

arose from the same criminal episode, and that the Commonwealth knew of

the misdemeanor and felony charges before the summary trial. In light of this

court’s decision in Perfetto, however, appellant fails to satisfy the fourth Reid

test prong.

      In Perfetto, this court held that where a defendant’s summary traffic

offense was to be heard solely in the Philadelphia Municipal Court Traffic

Division pursuant to its jurisdiction in accordance with 42 Pa.C.S.A.

§ 1302(a.1)(1)(i), a prior disposition of that summary traffic offense in traffic

court does not bar a later prosecution of other criminal charges that arose in

the same judicial district and at the same time as the summary traffic offense

because Section 1302 carves out an exception to compulsory joinder and

directs that the summary traffic offense is within the exclusive jurisdiction of

the traffic court. Consequently, appellant’s subsequent prosecution on the

misdemeanor and felony charges is not barred by compulsory joinder.

      In his brief, appellant contends that this court “wrongly decided”

Perfetto. (Appellant’s brief at 6, 14.) Until our supreme court overrules our

decision in Perfetto, however, it is the law of this Commonwealth.          See

Commonwealth v. Forbes, 867 A.2d 1268, 1279 (Pa.Super. 2005)



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(reiterating that “[i]t is well settled . . . that until the Supreme Court overrules

a decision of this Court, our decision is the law of the Commonwealth.”

(citations omitted)).

      Order affirmed.     Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/26/19




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