J-E03007-16
                             2017 PA Super 281



COMMONWEALTH OF PENNSYLVANIA,               :       IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                        Appellant           :
                  v.                        :
                                            :
MARC PERFETTO,                              :
                                            :
                        Appellee            :       No. 2479 EDA 2015

                    Appeal from the Order July 13, 2015
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0013338-2014

BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE,
        DUBOW, MOULTON, and RANSOM, JJ.

DISSENTING OPINION BY DUBOW, J.:                      FILED AUGUST 30, 2017

      This case involves the issue of the applicability of the compulsory

joinder rule set forth in 18 Pa.C.S. § 110 ("Section 110") when the

Commonwealth     has   charged      a   defendant    with   both   summary   and

misdemeanor traffic offenses. I respectfully dissent and disagree with the

Majority’s analysis because the legislation setting forth the jurisdiction of

Municipal Court vests jurisdiction to hear both types of offenses in not only

in Municipal Court as a whole, but also the General Division of Municipal

Court.   Therefore, since the Commonwealth could have prosecuted the

Appellee for both types of charges in the General Division of Municipal Court,

but instead attempted to prosecute him in the different divisions of Municipal

Court, Rule 110 bars the Commonwealth from now prosecuting the
J-E03007-16


misdemeanor charges. I would affirm the trial court’s grant of the Motion to

Dismiss.

      Section 110 protects a defendant’s double jeopardy rights where the

Commonwealth initially declines to prosecute the defendant for the present

offense, electing to proceed on different charges stemming from the same

criminal episode. Commonwealth v. Laird, 988 A.2d 618, 628 (Pa. 2010)

(citations omitted).

      Section 110 serves two major policies of protecting defendants from

governmental harassment and promoting judicial economy:

      [T]o protect accused persons from governmental harassment of
      undergoing successive trials for offenses stemming from the
      same episode, and to promote judicial economy and finality by
      avoiding repetitious litigation. By requiring compulsory joinder
      of all charges arising from the same criminal episode, a
      defendant need only once run the gauntlet and confront the
      awesome resources of the state.

Commonwealth v. George, 38 A.3d 893, 896 (Pa. Super. 2012) (internal

citations and quotation marks omitted).

      We must strictly construe the compulsory joinder statute, which is a

penal statute pursuant to 1 Pa.C.S. § 1928(b)(1).         Commonwealth v.

Fithian, 599 Pa. 180, 961 A2d 68, 74. Although we need not give the words

of the compulsory joinder statute their narrowest meaning or entirely

disregard legislative intent, “if an ambiguity exists in the verbiage of a penal

statute, such language should be interpreted in the light most favorable to

the accused.” Id. (citations omitted). “[W]here doubt exists concerning the

                                     -2-
J-E03007-16


proper scope of a penal statute, it is the accused who should receive the

benefit of such doubt.” Id. (citations and quotation omitted).

      Section 110     provides that   if the   Commonwealth prosecutes   a

defendant on certain charges, the Commonwealth is barred from prosecuting

the defendant again on charges stemming from the same criminal episode if

the Commonwealth could have prosecuted the defendant on the other

charges in the first prosecution:

        § 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 . . .
              and the subsequent prosecution is for:

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

               (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 a.C.S. § 110 (emphasis added).




                                      -3-
J-E03007-16


      The issue in this case, therefore, deals with whether the

former prosecution resulted in an acquittal or in a conviction and the

subsequent       prosecution      is    for    “any    offense   of     which    the

defendant        could      have        been      convicted      on     the     first

prosecution.” Section 110(a)(i). In other words, was there a

jurisdictional     bar     that   prevented           the   Commonwealth        from

prosecuting the defendant for all offenses in one proceeding.

      More       specifically     and     as    applied     to   this   case,    the

Commonwealth prosecuted the Appellee for a summary traffic

offense   in     Traffic   Division      of    Municipal    Court   and   deferred

prosecuting him for the misdemeanor charges. The issue in this

case, therefore, is whether the court that convicted the defendant

on the summary offenses had the jurisdictional authority to convict

him of the misdemeanor offenses. As discussed in greater detail

below, we conclude that because the Appellee was convicted in

Municipal Court and Municipal Court had jurisdiction to adjudicate

both summary and misdemeanor charges, Rule 110 barred the

prosecution of the misdemeanor offenses.1



1
  My analysis of the jurisdictional issue differs from the Majority in that the
Majority concludes that under Rule 110, “jurisdiction is no longer an element
of the compulsory joinder test,” but concludes is still “implicit to any
compulsory joinder analysis.” I disagree. Rule 110(i) clearly imposes the
jurisdictional requirement by providing that the compulsory joinder rule
applies if the defendant “could have been convicted” in the first prosecution.
                                               -4-
J-E03007-16


      Before 2013, Philadelphia had two separate courts that dealt with

summary and misdemeanor traffic offenses. Summary traffic offenses could

only be heard in Traffic Court and misdemeanor traffic offenses could only

be heard in Municipal Court. In particular, the legislature vested in Traffic

Court “jurisdiction of all prosecutions for summary offenses arising

under . . . Title 75.” 42 Pa.C.S.A 1302 (a)(i). Similarly, the legislature

vested in Philadelphia Municipal Court jurisdiction to hear “criminal offenses

by any person . . . for which no prison term may be imposed or which are

punishable by imprisonment for a term of not more than five years,

including indictable offenses under Title 75. 42 Pa. C.S.A. 1123(a)(2).

Because the legislature vested Traffic Court with jurisdiction “of all

prosecutions for summary offense arising under . . . Title 75,” the

Commonwealth could only prosecute summary offenses in Traffic Court and

misdemeanor     traffic   offenses   in   Municipal   Court.   Therefore,   the

Commonwealth did not violate Rule 110 by prosecuting both types of traffic

offenses in different courts. See, e.g., Commonwealth v. Masterson, 418

A.2d 664, 666 (Pa. Super. 1980).

      In 2013, the legislature enacted legislation that abolished Traffic Court

and transferred the jurisdiction of summary traffic offenses to Municipal



In other words, if the court that adjudicated the defendant in the first
prosecution “could have” adjudicated the charges that Commonwealth tries
to prosecution in the second prosecution, Rule 110 bars the subsequent
prosecution.
                                     -5-
J-E03007-16


Court. More specifically, the new legislation granted to Municipal Court the

jurisdiction to hear “prosecutions for summary offenses arising under . . .

Title 75.” 42 Pa.C.S.A. 1123(a)(9). As a result of this amendment, one single

court,     Municipal   Court,    had   jurisdiction   over   both   summary       and

misdemeanor traffic offenses.

         The legislation also created a new division of Municipal Court: the

Traffic Division. 42 Pa.C.S.A. 1121. As a result, Municipal Court has two

divisions: the General Division and the Traffic Division. The Traffic Division

has jurisdiction over summary traffic offenses:


         The Traffic Division shall, at the direction of the President Judge of the
         Philadelphia Municipal Court, exercise jurisdiction under section
         1123(a)(9).

42 Pa.C.S.A. 1121(c).           The legislation, however, vests in the General

Division jurisdiction to hear, inter alia, both summary and misdemeanor

traffic offenses:

         The General Division shall exercise full jurisdiction of the municipal
         court under section 1123(a)(relating to jurisdiction and venue).

42 Pa.C.S.A. 1121(b). Since section 1123(a) includes jurisdiction over

misdemeanor and summary traffic offenses, the General Division has

jurisdiction over both types of cases. See 42 Pa.C.S.A. 1123(a)(2) and 42

Pa.C.S.A. 1123(a)(9).

         Thus, the legislature created a statutory scheme in which the General

Division would hear those cases in which the Commonwealth charged a


                                         -6-
J-E03007-16


defendant with both summary and misdemeanor traffic offenses and the

Traffic Division would hear those cases in which the Commonwealth only

charged a defendant with a summary offense.

      In this case, the Commonwealth charged the Appellee with both

summary and misdemeanor traffic offenses and attempted to prosecute the

charges separately. As discussed above, once the legislature abolished Traffic

Court and transferred jurisdiction of summary traffic offenses to Municipal

Court, one single court had jurisdiction to adjudicate both summary and

misdemeanor traffic offenses. There is nothing in the legislation that limits

Municipal Court’s authority to hear both types of cases. Thus, Rule 110

mandates that the Commonwealth prosecute both types of offenses together

in Municipal Court.

      The Majority Opinion, when addressing the jurisdictional bar, interprets

the legislation that abolished traffic court as vesting exclusive jurisdiction to

hear summary offenses in Traffic Division. I disagree. There is no provision in

the legislation that vests exclusive jurisdiction in the Traffic Division. In fact,

the clear and unambiguous language of the legislation does the opposite. It

vests in the General Division the jurisdictional authority to adjudicate both

types of charges. In other words, the legislation devises a statutory scheme

in which the Traffic Division adjudicates cases in which the Commonwealth is

only prosecuting summary traffic offenses and the General Division when the

Commonwealth is prosecuting summary and misdemeanor traffic offenses.

                                      -7-
J-E03007-16


      The Majority Opinion in concluding that the Traffic Division has

exclusive jurisdiction over summary traffic offenses also relies upon the

authority of the Supreme Court “by general rule provide for the assignment

and reassignment of classes of matters among several courts of this

Commonwealth and the magisterial district judges as the needs of justice

shall require . . .” 42 Pa.C.S.A. 503(a).2 The Majority Opinion argues that the

Supreme Court, through the Pennsylvania Rules of Criminal Procedure,

assigned the summary traffic offenses to the Traffic Division of Municipal

Court. Pa.R.Crim.Pro. 1001(A). In particular, the Majority Opinion relies upon

the definition of a “Municipal Court Case” which includes “any offense under

the Vehicle Code other than a summary offense.” The comment to the rule

provides that summary traffic offenses “are under the jurisdiction of the

Municipal Court Traffic Division …” Pa.R.Crim.P. 1001(D), cmt.

      As discussed above, I respectfully disagree with the Majority’s

interpretation of these provisions as vesting in the Traffic Division exclusive

jurisdiction over summary traffic offenses. First, such an interpretation is

contrary to the clear and unambiguous language of the statute that vests in

the General Division the authority to adjudicate both summary and

misdemeanor offenses. Since the legislature vested jurisdiction of summary

offenses in both the General Division and Traffic Division, there is no


2
  We note that 503(b) also requires the Chief Justice of the Supreme Court
to report such rules to the General Assembly for approval either by vote or
failure to vote.
                                    -8-
J-E03007-16


statutory basis to interpret this rule and comment as vesting exclusive

jurisdiction in the Traffic Division.

      Moreover, the better interpretation is that the comment addresses

those cases in which the Commonwealth has only charged the defendant with

a summary offense and the Traffic Division is the appropriate division to hear

the summary traffic offense.

      I also respectfully disagree with the Concurring Opinion and its

reliance on Section 112(1).       As an initial matter, the Concurring Opinion

interprets Section 112(1) expansively and in such a way as to limit an

accused rights set forth in the Section 110. It is well established that we

should interpret ambiguities in statutes in the light most favorable to the

accused. Commonwealth v. Fithian, supra at 74.

      In   particular,   the   Concurring     Opinion   argues   that   since   the

Commonwealth prosecuted the defendant in the Traffic Division of Municipal

Court and the judges in the Traffic Division only have the authority to hear

summary offenses, the Traffic Division lacked the jurisdiction to hear the

misdemeanor and the exception to the compulsory joinder rule set forth in

Section 112(1) applies.

      Section 112(1) applies when “the former prosecution was before a

court which lacked jurisdiction over the defendant or the offense.” (emphasis

added). In this case, the legislature clearly granted to Municipal Court

jurisdiction over both summary and misdemeanor traffic offenses. 42 Pa.C.S.

                                        -9-
J-E03007-16


1123(a). Thus, the prosecution of the summary offense in the Traffic Division

was a prosecution before Municipal Court, which had jurisdiction to hear

both types of offense, and Section 112(1) does not apply.

          The Concurring Opinion further relies on the fact that the judges in the

Traffic Division lacked the authority to hear misdemeanor offenses and

concludes that this limited authority of the judges is a sufficient jurisdictional

bar to permit separate prosecutions. Although the judges in the Traffic

Division have limited authority, Section 112(1) applies only when the “court,”

and not “division of a court,” lacked jurisdiction to hear the prior prosecution.

As discussed throughout, Municipal Court always had jurisdiction to hear both

types of cases.

          The reason the Commonwealth prosecuted the summary offenses

separately from the misdemeanor offense is not based on any jurisdictional

bar. Rather, it is based on the administration of Municipal Court erroneously

listing     summary    traffic   offenses    separately   from   misdemeanor   traffic

offenses. As a result of this administration decision, the defendant is deprived

of his right in Section 110 to be prosecuted in one proceeding for multiple

offenses arising from the same criminal episode. For this reason, I

respectfully dissent.

          In conclusion, I find that Section 110 applies to this case and would

affirm Appellee’s Motion to Dismiss.

          PJE Bender and Judge Lazarus join this dissenting opinion.

                                            - 10 -
