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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                       :
RICHARD ISAAC,                         :          No. 811 EDA 2015
                                       :
                       Appellant       :


                   Appeal from the Order, March 12, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0012115-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED OCTOBER 18, 2017

     Richard Isaac appeals the order of the Court of Common Pleas of

Philadelphia County that denied his motion to dismiss. We affirm.

     On July 31, 2014, at approximately 3:45 a.m., City of Philadelphia

Police Officer Amina Oliver (“Officer Oliver”) observed appellant driving a

vehicle northbound on the 5700 block of East Wister Street in the City of

Philadelphia. Officer Oliver stopped the vehicle. Appellant did not have any

identification and told Officer Oliver that his name was “Richard Isley.”

Officer Oliver ran the name “Richard Isley” through a Department of Motor

Vehicles check.   The check provided no record or license.    Officer Oliver

issued a traffic violation report to appellant for an unlicensed driver,

75 Pa.C.S.A. § 1501(a).   (Notes of testimony, 3/12/15 at 6-8.)     Appellant

was arrested and charged with driving under the influence:          controlled


* Retired Senior Judge assigned to the Superior Court.
J. S52005/16


substance or metabolite, 75 Pa.C.S.A. § 3802(d)(1), driving under the

influence:     controlled   substance    --   impaired    ability,    75   Pa.C.S.A.

§ 3802(d)(2), and driving while blood alcohol content .02 or greater while

license suspended, 75 Pa.C.S.A. § 1543(b1.1).             On October 2, 2014,

appellant was convicted in absentia in Philadelphia Municipal Court --

Traffic Division (“Traffic Division”) of driving without a license.

      On December 3, 2014, appellant moved to dismiss the charge for

driving while his blood alcohol content was .02 or greater while his license

was suspended on double jeopardy grounds pursuant to the Fifth and

Fourteenth Amendments to the United States Constitution and Article I,

Section 10 of the Pennsylvania Constitution.         That same date, appellant

moved to dismiss the remaining charges on the basis of 18 Pa.C.S.A.

§ 110(a)(1)(ii) because the Commonwealth failed to prosecute these

charges at the same time as the summary traffic violations.

      On March 12, 2015, the trial court heard the motions as well as the

testimony of Officer Oliver and denied the motions.

      Appellant appealed to this court and raises the following issue for this

court’s review:

             Did not the lower court err in denying appellant’s
             motion to dismiss pursuant to 18 Pa.C.S.[A.] § 110
             in that:     (i) Mr. Isaac was found guilty in the
             Philadelphia Municipal Court’s Traffic Division on a
             traffic citation; (ii) the Traffic Division prosecution
             was based upon the same criminal conduct and/or
             arose from the same criminal episode as the instant
             criminal charges; (iii) the Commonwealth was aware


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            of the instant charges before the commencement of
            the trial on the former charge; and, (iv) these
            instant charges occurred within the same judicial
            district as the former prosecution in the Philadelphia
            Municipal Court’s Traffic Division?

Appellant’s brief at 3.

      This court is presented with pure questions of law.        As a result, this

court’s standard of review is de novo, and its scope of review is plenary.

Commonwealth v. Barger, 956 A.2d 458, 461 (Pa.Super. 2008), appeal

denied, 980 A.2d 109 (Pa. 2009).

      The compulsory joinder statute, contained in the Crimes Code at

18 Pa.C.S.A. § 110, provides in pertinent 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:

                   (i)    any offense of which the
                          defendant could have been
                          convicted    on the   first
                          prosecution;

                   (ii)   any offense based on the
                          same conduct or arising from
                          the same criminal episode, if


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                        such offense was known to
                        the appropriate prosecuting
                        officer at the time of the
                        commencement of the first
                        trial and was within the same
                        judicial district as the former
                        prosecution unless the court
                        ordered a separate trial of the
                        charge of such offense; or

                 (iii) the same conduct, unless:

                        (A) the offense of which
                        the     defendant      was
                        formerly    convicted    or
                        acquitted and the offense
                        for     which     he     is
                        subsequently prosecuted
                        each requires proof of a
                        fact not required by the
                        other and the law defining
                        each of such offenses is
                        intended to prevent a
                        substantially     different
                        harm or evil; or

                        (B) the second offense
                        was not consummated
                        when the former trial
                        began.

18 Pa.C.S.A. § 110.

     Appellant contends that his situation falls under Section 110(1)(ii) for

the following reasons: First, he was convicted of driving without a license

in absentia in Traffic Division.   Second, the prosecution in the trial court

was based upon        the   same   criminal episode   as the   prosecution in

Traffic Division. Third, the prosecutor was aware of the charges in the trial

court before the commencement of the trial in Traffic Division because the


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Philadelphia District Attorney’s office handles the prosecutions for both the

trial court and Traffic Division.    Fourth, appellant alleges that the alleged

violations all took place within the same judicial district as the former

prosecution in Traffic Division because Traffic Division and the Philadelphia

Municipal Court, where the present case began, are the same court.

      The compulsory joinder rule bars a subsequent prosecution if each of

the following test prongs are 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.

Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013) (citation omitted;

bracket in original).

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

traffic offense resulted in a conviction, that his DUI charges were based on

the same criminal conduct or arose from the same criminal episode, and that

the Commonwealth knew of the DUI charges before the summary trial. In

light of this court’s recent en banc decision in Commonwealth v.

Perfetto,       A.3d     , 2017 WL 3776631 (Pa.Super. 2017) (en banc),

however, appellant fails to satisfy the fourth Reid test prong.

      In Perfetto, 2017 WL 3776631 at *11, this court held that where, as

here, a defendant’s summary traffic offense was to be heard solely in the


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Traffic Division pursuant to its jurisdiction in accordance with 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 Division.    Consequently, appellant’s subsequent

prosecution on the DUI charges was not barred by compulsory joinder.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/18/2017




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