J-A08043-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
                                           :
                    v.                     :
                                           :
JAMAL STREATER,                            :
                                           :
                  Appellant                :     No. 1504 EDA 2015

                 Appeal from the Order Entered May 5, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0013825-2014

BEFORE:     PANELLA, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED JUNE 27, 2018

      Jamal Streater (Appellant) appeals from the May 5, 2015 order

denying his motion to dismiss, which alleged that the Commonwealth’s DUI

prosecution was barred by the compulsory joinder statute, 18 Pa.C.S. § 110.

Upon review, we affirm.

      We glean the following factual and procedural history from the record.

On May 19, 2013, Appellant was stopped for a motor vehicle violation. He

was arrested and charged with driving under the influence (DUI) and was

issued a traffic citation for driving without headlights.    On July 23, 2013,

Appellant was found guilty in absentia of the traffic offense in Philadelphia

Municipal   Court–Traffic    Division.   Thereafter,   Appellant’s   DUI   charge

proceeded to the Philadelphia Municipal Court–General Division.        Appellant

filed a motion to dismiss the DUI charges based on compulsory joinder.


*Retired Senior Judge assigned to the Superior Court.
J-A08043-18


Specifically, Appellant argued that the former prosecution of the traffic

offense barred the prosecution of the DUI charge pursuant to 18 Pa.C.S.

§ 110(1)(ii). The court denied the motion and Appellant was found guilty of

DUI on December 4, 2014.         Appellant appealed the DUI conviction to the

Court of Common Pleas for a trial de novo, and filed another motion to

dismiss pursuant to 18 Pa.C.S. § 110(1)(ii) before that court.        On May 5,

2015, the      trial   court denied   the   motion.   This   timely-filed   appeal

followed.1, 2, 3

       On appeal, Appellant argues that compulsory joinder required that the

Commonwealth prosecute him contemporaneously for the DUI charge and




1 The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), but the trial court
did file a 1925(a) opinion.
2 “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) (citations
omitted).
3 This Court granted a continuance at the request of the parties pending the
en banc decision in, inter alia, Commonwealth v. Perfetto. Per Curiam
Order, 11/15/2016. The en banc decision in that case was filed on August
30, 2017. Commonwealth v. Perfetto, 169 A.3d 1114 (Pa. Super. 2017)
(en banc), appeal granted, 182 A.3d 435. Though our Supreme Court
granted Perfetto’s petition for allowance of appeal on February 27, 2018,
that case is still pending and the en banc panel’s decision remains controlling
law until our Supreme Court holds otherwise. We note that supplemental
briefs were not filed in the instant case following the en banc panel’s
decision.



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the traffic offense because they were part of the same criminal episode.4

Because the Commonwealth prosecuted him solely for the traffic offense


4 The Commonwealth alleges that Appellant waived his right to file a motion
to dismiss before the trial court because he elected to forgo review of the
denial of his first motion to dismiss under a writ of certiorari, and instead
proceeded to a trial de novo. The Commonwealth cites Commonwealth v.
Perillo, 626 A.2d 163, 168 n.6 (Pa. Super. 1993) for the proposition that a
“defendant who acquiesced to retrial waived claim that trial was barred[,]”
but that is not what the footnote states. Appellant’s Brief at 5.

      We note, however, that appellant misstates the law in claiming
      that double jeopardy cannot be waived and may be raised at any
      time, even after trial and verdict. See appellant's brief at 19.
      In Commonwealth v. Gilman, [] 401 A.2d 335 ([Pa. ]1979),
      the [S]upreme [C]ourt held that a defendant waived his claim
      that retrial amounted to double jeopardy because he did not
      move to dismiss prior to retrial on a felony murder
      charge. See also Commonwealth v. Peters, [] 373 A.2d 1055
      ([Pa. ]1977) (defendant waived double jeopardy claim by
      failure to raise it prior to second trial). Contrary to
      appellant’s assertions, Commonwealth v. Beck, [] 464 A.2d
      316 ([Pa. ]1983), stands for the limited proposition that the
      doctrine of waiver has no application where the defendant was
      acquitted of the charge in the previous trial.

Perillo, 626 A.2d at 168 n.6 (emphasis added).

       “A trial de novo gives the defendant a new trial without reference to
the Municipal Court record; a petition for writ of certiorari asks the Common
Pleas Court to review the record made in the Municipal Court.”
Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa. Super. 2015)
(citation omitted) (holding that issue of whether appellant was timely tried in
Municipal Court became moot when he decided to forgo review of that
motion by writ of certiorari and instead proceeded to a trial de novo). A trial
de novo does not allow relitigation of pretrial motions, such as a motion to
suppress. Commonwealth v. Harmon, 366 A.2d 895 (Pa. 1976).

     Here, Appellant argued that any trial, including his de novo trial, for
the DUI charge is barred by the compulsory joinder rule because the
(Footnote Continued Next Page)


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first, Appellant argues that the trial court erred in denying his motion to

dismiss the subsequent DUI case. Appellant’s Brief at 4.

      Appellant’s claim raises a question of law; therefore, our standard of

review is de novo and our scope is plenary.            Commonwealth v. Fithian,

961 A.2d 66, 71 n.4 (Pa. 2008).

      The compulsory joinder statute sets forth the requirements for when a

current prosecution is barred by a former prosecution for a 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:

                                                 ***

                       (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[.]
(Footnote Continued)   _______________________



Commonwealth decided to try him separately for the traffic offense first.
The fact that Appellant previously filed a motion to dismiss is irrelevant
because a trial de novo does not consider the municipal court record.
Moreover, because he was facing a retrial, Appellant had to file a new
motion to dismiss or waive that issue for appeal. See Perillo, supra.
Accordingly, we are not persuaded by the Commonwealth’s waiver
argument.



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J-A08043-18



18 Pa.C.S. § 110(1)(ii).

      Here, Appellant was charged in the city and county of Philadelphia with

a traffic offense and DUI arising from the same criminal episode.           The

Commonwealth prosecuted the traffic offense first, and following that

conviction in absentia, proceeded on the DUI charge. Generally, 18 Pa.C.S.

§ 110(1)(ii) would bar the subsequent prosecution of Appellant’s DUI charge

because it arose out of the same criminal episode within the same judicial

district that triggered his former prosecution for the traffic offense.

However, an en banc panel of this Court recently examined a factually

similar situation, and found that because of the “jurisdictional exceptions

applicable to Philadelphia,” compulsory joinder does not bar the prosecution

of a DUI charge following a conviction for a traffic violation in Philadelphia

Municipal Court–Traffic Division, even though the DUI charge and the traffic

offense stem from the same criminal episode. Perfetto, 169 A.3d at 1116.

      In Perfetto, the defendant was stopped in the city and county of

Philadelphia and charged with several counts of DUI, as well as a traffic

offense for driving without lights. Perfetto was found guilty in absentia for

the traffic offense in the Philadelphia Municipal Court–Traffic Division.

Subsequently, he was prosecuted on the DUI charges in the Philadelphia

Municipal Court–General Division. Following a preliminary hearing, Perfetto’s

case was listed for trial in the Court of Common Pleas. Prior to trial, Perfetto



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filed a motion to dismiss pursuant to 18 Pa.C.S. § 110(1)(ii). The trial court

granted Perfetto’s motion, finding that the 2013 merger of the formerly

separate Traffic Court with the Philadelphia Municipal Court “brought [the]

charges within the jurisdiction of the same court, and [] the policy aims of

18 Pa.C.S. § 110(1)(ii) dictated that the secondary prosecution be barred.”

Id. at 1116-17. The Commonwealth appealed, and the matter was certified

to an en banc panel of this Court.

      On appeal, this Court focused on the 2002 amendment to 18 Pa.C.S.

§ 110(1)(ii), which removed the phrase “was within the jurisdiction of a

single court[,]” and replaced it with “occurred within the same judicial

district.” Perfetto, 169 A.3d at 1119 (quoting 18 Pa.C.S. § 110(1)(ii)). We

concluded that

      the amended language of Section 110 is clear and unambiguous,
      and it requires a court to consider not the jurisdiction of a court,
      but rather whether multiple offenses occurred within the same
      judicial district. If so, and provided the prosecutor is aware of
      the offenses, all charges shall be joined and prosecuted
      together. Thus, the addition of the “same judicial district”
      language requires that all charges occurring within the same
      judicial district, arising from the same criminal conduct or
      criminal episode, and known to a prosecutor, shall be joined at
      the time of commencement of the first prosecution.

Id. at 1120 (emphasis in original; citation omitted).

      Thus, the fourth prong of the four-prong test to determine whether

compulsory joinder applies in a given case was modified following the 2002

amendment as follows:



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J-A08043-18


      (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.

Id. at 1119 (emphasis in original; citations omitted).

      As in Perfetto, there is no question that in the instant case, the first

three prongs were satisfied.      Rather, the issue narrowly focuses on the

fourth prong of the test. In that regard, Appellant argues that the trial court

erroneously focused on a “jurisdictional” element, which he claims is no

longer part of the four-prong test following the 2002 amendment.

Appellant’s Brief at 11-12. However, this Court concluded in Perfetto that

jurisdictional considerations are still pertinent.

      [W]hile jurisdiction is no longer an element of the compulsory
      joinder test, the jurisdiction of a court remains a consideration
      implicit to any compulsory joinder analysis, and it is particularly
      important in those judicial districts that, for various reasons,
      have distinct minor courts or magisterial district judges vested
      with exclusive jurisdiction over specific matters.

Perfetto, 169 A.3d at 1121 (footnote omitted).       This is particularly so in

Philadelphia, which has a unique jurisdictional organization compared to

other Pennsylvania jurisdictions.

      In judicial districts with a designated and open traffic court such
      as Philadelphia, 42 Pa.C.S. § 1302 expressly defines the
      jurisdiction of a traffic court and effectively carves out an
      exception to the normal operation of the compulsory joinder
      rule.

                                       ***


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J-A08043-18


     This distinction requires that all summary traffic violations be
     adjudicated in the traffic court of a judicial district. Therefore,
     where a defendant is charged with a summary traffic violation, a
     misdemeanor, and a felony, in judicial districts with a traffic
     court, the Title 75 summary offense may be disposed of in a
     prior proceeding in the traffic court, which has exclusive
     jurisdiction to hear it, without violating the compulsory joinder
     rule.

Id. at 1121-22 (footnote omitted).     Thus, we must look at Philadelphia’s

unique jurisdictional structure in light of the compulsory joinder statute,

specifically as it pertains to the prosecution of cases involving a traffic

offense and a misdemeanor from the same criminal episode.

     On June 19, 2013, the Philadelphia Municipal Court underwent a

restructuring wherein it absorbed the previously independent Traffic Court.5

            The new Municipal Court comprises two administrative
     sections, designated the General Division and the Traffic
     Division. 42 Pa.C.S. § 1121. These divisions have unique
     jurisdiction as defined in 42 Pa.C.S. § 1123(a) (relating to
     jurisdiction and venue). Among the matters listed as within the
     jurisdiction of the Philadelphia Municipal Court are prosecutions
     for summary offenses arising under Title 75. 42 Pa.C.S.
     § 1123(a)(9)[.]




5 At oral argument, Appellant attempted to distinguish Perfetto because
Appellant was charged on May 19, 2013, before this restructuring, whereas
Perfetto was charged after the restructuring. This argument is specious.
While Appellant was charged prior to the restructuring, he was prosecuted
on his traffic offense following the restructuring, in the newly created
Philadelphia Municipal Court–Traffic Division, on July 23, 2013.           His
prosecution on the DUI charge proceeded after that in the Philadelphia
Municipal Court–General Division. Thus, his prosecutions did not predate
the 2013 restructuring, and Perfetto is not distinguishable on that basis.



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Id. at 1122. However, our Supreme Court has reassigned summary traffic

violations to the Philadelphia Municipal Court–Traffic Division. Id. at 1123.

      Particularly, rules 1002 and 1030 of the Rules of Criminal
      Procedure for the Municipal Court and the Philadelphia Municipal
      Court[-]Traffic Division, as amended after June 19, 2013,
      distinguish   between     non-traffic   summaries      and   traffic
      summaries, and their comments reinforce that the Traffic
      Division     has     jurisdiction     over     traffic    summary
      offenses. See Pa.R.Crim.P. [] 1002, cmt. (“all summary offenses
      under the motor vehicle laws ... are under the jurisdiction of the
      Municipal Court[-]Traffic Division”); 1030, cmt. (“the jurisdiction
      and functions of the Philadelphia Traffic Court were transferred
      to the Philadelphia Municipal Court[-]Traffic Division”).

            The aforementioned amendments, collectively, illuminate
      our Supreme Court’s intent following the restructure to divide
      the Philadelphia Municipal Court’s labor to allocate disposition of
      summary traffic offenses solely to the Philadelphia Municipal
      Court Traffic Division.

Id. at 1124 (footnote omitted). Given this jurisdictional structure, this Court

held that

      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.

      Considering Philadelphia’s unique jurisdictional structure with the

compulsory joinder statute, the Perfetto Court held that, in Philadelphia,

compulsory joinder will not bar a prosecution for DUI arising out of the same




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criminal episode as a traffic offense for which a defendant has already been

prosecuted in the Traffic Division.

      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. A prior disposition of a summary
      traffic offense in a traffic court does not bar the later prosecution
      of other criminal charges which arose in the same judicial district
      and at the same time as the summary traffic offense.

             In sum, the amended language “occurred within the same
      judicial district” found in Section 110 is clear and unambiguous.
      Rather, a court must consider whether all charges occurred in
      the same judicial district. Because of the implicit consideration of
      jurisdiction, where summary traffic offenses are included in
      multiple crimes charged, in those judicial districts which have a
      separate traffic court, the summary traffic offenses may reach
      disposition in a single, prior proceeding without precluding
      subsequent prosecution of higher offenses. Where there is a
      separate traffic court, the traffic court is charged with disposing
      with the summary traffic violation(s) of the crimes charged
      without violation of the compulsory joinder rules. In those
      judicial districts which do not have a separate traffic court, the
      four-prong test compulsory joinder must be applied in order to
      determine whether the compulsory joinder rules have been
      violated.

             Here, because of the unique jurisdictional organization of
      the Philadelphia Courts, [Perfetto’s] subsequent DUI prosecution
      is not barred.

Id. at 1124-25.

      Like Perfetto, Appellant was charged with a traffic offense and DUI

from the same criminal episode occurring within the city and county of

Philadelphia. Like Perfetto, Appellant was tried first for the traffic offense in

the newly restructured Philadelphia Municipal Court–Traffic Division, and was

found guilty in absentia. Like Perfetto, the Commonwealth next proceeded


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with Appellant’s DUI prosecution, and Appellant sought dismissal for a

violation   of   compulsory   joinder.    Accordingly,   because   Appellant’s

circumstances are practically identical to those of Perfetto, we find that for

the reasons stated by this Court in Perfetto, supra, compulsory joinder

does not apply, and the trial court did not err in denying his motion to

dismiss.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 6/27/18




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