J-E03011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA


                        v.

    EUGENE LAMONT DAVIS

                             Appellant                    No. 1440 EDA 2015


                       Appeal from the Order April 13, 2015
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0009685-2014


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

MEMORANDUM BY RANSOM, J.:                            FILED DECEMBER 12, 2017

        Appellant, Eugene Lamont Davis, appeals from the order entered April

13, 2015, denying his motion to dismiss, which asserted a violation of

Pennsylvania’s compulsory joinder rule. See 18 Pa.C.S. § 110. After careful

review, we remand with instructions.

        We derive the following statement of facts and procedural background

of this case from the trial court’s opinion and the record.

              [In March 2014], Philadelphia[1] police officers [], in a
        marked patrol vehicle, observed [Appellant] driving a vehicle with
        tinted windows at a high rate of speed and disregarding a stop
        sign. The officers attempted to stop [Appellant’s] vehicle by
        operating their lights and sirens. [Appellant] allegedly failed to
        pull over for several blocks. During the pursuit, [Appellant]
        allegedly sped through two steady red lights and two additional
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1   Philadelphia is the First Judicial District of Pennsylvania. 42 Pa.C.S. § 901(a).

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       stop signs, causing another vehicle to swerve out of the way.
       [Appellant] was arrested and was charged with driving under the
       influence [(“DUI”)] (75 Pa.C.S. § 3802) fleeing and eluding police
       (18 Pa.C.S. § 3733), and recklessly endangering another person
       [(“REAP”)] (18 Pa.C.S. § 2705). Appellant was also issued traffic
       citations under the [] Vehicle Code.2

              [In May 2014], [Appellant] was found guilty in absentia on
       all four traffic offenses [] [in] the [Philadelphia] Municipal Court -
       Traffic Division. The DUI charge was listed in the [General]
       Division of the Municipal Court for disposition. A preliminary
       hearing was held[], and [Appellant] was bound over for trial [in
       the Court of Common Pleas] on all charges. [] [In February 2015,
       Appellant argued a motion to dismiss the remaining charges
       before the court, asserting that subsection (1)(ii) of 18 Pa.C.S. §
       110, known as the compulsory joinder rule,[3] barred his
       subsequent prosecution.          See Notes of Testimony (N.T.),
       2/19/2015, at 4. Appellant argued that dismissal was appropriate
       because the multiple charges filed against him arose from the
       same criminal episode, occurred within the same judicial district,
       and the Commonwealth was aware of the charges when it
       prosecuted him for the summary offenses. Id. at 4-11.]

Trial Court Opinion, 8/19/2015, at 1-2 (unnecessary capitalization and some

footnotes omitted).        Following submission of briefs and a hearing, the



____________________________________________


2 [Appellant] received [] citations for driving without a license [], reckless
driving [], disregarding a red signal [], and illegal sunscreen []. [75 Pa.C.S.
§§ 1501(a), 3736(a), 311(a)(3)(i), and 4524(e)(1), respectively.]

3 This Court addressed the compulsory joinder rule in our recent decision,
Commonwealth v. Perfetto, 169 A.3d 1114 (Pa. Super. 2017) (en banc).
The Perfetto Court recognized, “[s]ection 110 is a codification of the rule
announced by our Supreme Court in Commonwealth v. Campana, 304 A.2d
432 (Pa. 1973), vacated and remanded, 94 S. Ct. 73 (1973), reinstated, 314
A.2d 854 (Pa. 1974), cert. denied, 94 S. Ct. 3172 (1974). In Campana, our
Supreme Court held that the Double Jeopardy Clause requires a prosecutor to
bring, in a single proceeding, all known charges against a defendant arising
from a single criminal episode.” Perfetto, 169 A.3d at 1117 (most internal
citations and quotations omitted).

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Honorable Vincent N. Melchiorre denied Appellant’s motion to dismiss in April

2015. However, no findings of fact or findings as to the frivolousness of the

motion were entered on the record. Notes of Testimony (N.T.), 4/13/2015 at

3-8.

       Appellant timely filed a notice of appeal. No 1925(b) statement was

ordered.    Nevertheless, in August 2015, the trial court filed an opinion

explaining its decision.   In June 2016, this Court issued a memorandum

opinion affirming the trial court. Appellant petitioned this Court for en banc

reconsideration, which was granted in August 2016.

       Appellant raises the following claim for our review:

       1. Did not the lower court err in denying [A]ppellant’s motion to
          dismiss pursuant to 18 Pa.C.S. § 110 in that: (i) [Appellant]
          was found guilty in Philadelphia Municipal Court’s Traffic
          Division on four traffic citations; (ii) the Traffic Division
          prosecutions were based upon the same criminal conduct
          and/or [a]rose from the same criminal episode as the instant
          criminal charges; (iii) the Commonwealth was aware of the
          instant charges before the commencement of the trial on the
          former charges; and, (iv) these instant charges occurred within
          the same judicial district as the former prosecutions in the
          Philadelphia Municipal Court’s Traffic Division?

Substituted Brief for Appellant, at 3.

       As an initial matter, we must determine whether this Court has

jurisdiction over the instant appeal. Commonwealth v. Taylor, 120 A.3d

1017, 1021 (Pa. Super. 2015) (noting that issues of jurisdiction may be raised

sua sponte).




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       Pennsylvania Rule of Criminal Procedure 587(B) governs motions to

dismiss on double jeopardy grounds. Pa.R.Crim.P. 587(B). An order denying

such a motion may be appealable as a collateral order.4 An immediate appeal

from the denial of a double jeopardy claim is allowable under the collateral

order doctrine where the motion is found not to be frivolous.               See

Commonwealth v. Brady, 508 A.2d 286, 289-91 (1986) (holding that

absent a finding of frivolousness, an appeal may be taken from the denial of

a motion to dismiss). In our recent decision, Commonwealth v. Diggs, ---

A.3d --- (Pa. Super. 2017), we held that Pa.R.Crim.P. 587(B) applies to

motions to dismiss based on compulsory joinder “[a]s Section 110 embodies

the same basic purposes as those underlying the double jeopardy clauses,

[and] the interlocutory appealability of double jeopardy claims has been

applied to claims based on Section 110.”         Diggs, --- A.3d ---, *5 (citing

Commonwealth v. Bracalielly, 658 A.2d 755, 759-60 (Pa. 1995)); see also

Pa.R.A.P. 313(b). Accordingly, appellate jurisdiction exists only where a court

determines that a motion to dismiss on compulsory joinder grounds is not

frivolous and thereby qualifies as a collateral order. Diggs, --- A.3d ---, *5-

6; Pa.R.Crim.P. 587(B).




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4 “A collateral order is an order separable from and collateral to the main cause
of action where the right involved is too important to be denied review and
the question presented is such that if review is postponed until final judgment
in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b).

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      Here, our review of the transcript and record reveals that the trial court

failed to comply with Rule 587(B), as it denied Appellant's motion to dismiss

based on compulsory joinder without entering on the record a statement of

findings of fact or a specific determination regarding whether Appellant’s

motion was frivolous. N.T., 4/13/2015 at 3-8; see Pa.R.Crim.P. 587(B)(3)-

(4). Accordingly, this Court may not exercise jurisdiction over this appeal. In

light of Diggs, we are constrained to remand this matter to the Court of

Common Pleas for additional findings and with instructions to comply with Rule

587(B).

      Case remanded for proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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