J. A25003/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                     v.                   :
                                          :
DAVIS JOHN MARTISOFSKI,                   :          No. 521 MDA 2016
                                          :
                          Appellant       :


            Appeal from the Judgment of Sentence, March 23, 2016,
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No. CP-38-CR-0000527-2015


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED NOVEMBER 17, 2016

        David John Martisofski appeals from the March 23, 2016 judgment of

sentence entered in the Court of Common Pleas of Lebanon County following

his conviction in a waiver trial of two counts of driving under the influence 1

(“DUI”) and one summary count of maximum speed limits.2 The trial court

sentenced appellant to a period of incarceration of 90 days to two years less

one day. We affirm.

        The trial court provided the following, gleaned from appellant’s

pre-trial hearing:




* Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3802(d)(1)(iii) and (d)(2).
2
    75 Pa.C.S.A. § 3362(a)(3).
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          . . . On December 31, 2014, Trooper [John]
          Huffstutler conducted a traffic stop of [appellant’s]
          vehicle. On that night, Trooper Huffstutler testified
          that he “completed a citation” for exceeding
          maximum speed limits, but he never actually gave a
          paper citation to [appellant] (Citation number
          T-2545157).      Trooper Huffstutler subsequently
          withdrew the citation.

                Exhibit No. 1 is the citation withdrawal letter
          that he submitted in person to the MDJ. Trooper
          Huffstutler testified that the citation was not filed.
          The computer system they use is TraCS, and there is
          an option to either issue or file a citation.       He
          selected the issue option and printed out the citation.
          Trooper Huffstutler had a printed paper citation in his
          hand and was planning to give it to [appellant];
          however, he was unable to because as he was
          explaining it to him, he detected DUI indicators that
          led to the criminal complaint. Trooper Huffstutler
          never sent anything to MDJ Wolfe’s office except for
          the withdrawal letter. The computer system notifies
          the magistrate’s office of violations.           When
          questioned more about the computer system,
          Trooper Huffstutler testified as follows:

                The way it works with TraCS compared
                to a paper citation, if I write a paper
                citation, I would have all the documents
                with me. If I went up to the car and saw
                what I saw, I would just take it back and
                I would write, withdraw, and it would
                never get sent in. But in the car, once
                you pull a citation number onto the
                citation–we have a thumb drive I can
                show you. We carry them on us. We
                have a thumb drive that holds all our
                citations [sic] numbers, they’re not listed
                automatically on top. So as soon as you
                click, get number on TraCS, it assigns it
                to that electronic document.

                And the only way to get rid of it after
                that is to withdraw the citation.   So


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                there’s [sic] been instances in the past
                where a computer error where I would
                have to do this same thing where a
                defendant would have never got [sic]
                their citation, but I would have to still
                withdraw an issued citation because I
                wouldn’t want the prosecution to go
                through for those reasons.

          Although Trooper Huffstutler kept saying that he
          “issued” a citation, he later acknowledged that he
          created it on an electronic screen on the TraCS
          system.     Trooper Huffstutler and the MDJ have
          access to this screen. Trooper Huffstutler never
          wrote anything on a paper citation.        Trooper
          Huffstutler would have destroyed the printed paper
          in the shred bin.

                 Ms.    Mercedes       Marrero     (hereinafter
          “Ms. Marrero”), who is the office manager at MDJ
          Wolfe’s office, testified.   She corroborated that
          Trooper Huffstutler asked to withdraw a citation filed
          against [appellant]. Ms. Marrero ultimately withdrew
          it.    When she went to withdraw the citation,
          [appellant] had an online payment pending on the
          citation.   She ultimately accepted the payment
          because she has to accept it in order to refund it.
          She cannot block the payment from being accepted.
          Accepting the payment was for the limited purpose
          of refunding it.    The citation was withdrawn on
          January     16,    2015,     and     payment      was
                                           th
          accepted/satisfied on January 20 . The citation was
          withdrawn before the money was accepted.

                 [Appellant] testified. Appellant received in the
          mail a DL-38 form that is dated January 13, 2015.
          The form advised [appellant] that unless he
          responded to the citation and paid the fine, his name
          would     be    referred    to  the   Department     of
          Transportation, which will suspend his driving
          privilege until he responds to the citation and pay
          [sic] all fines, costs, and penalties. This form was
          mailed to him, but [appellant] does not remember
          the date he actually received it. Receiving the form


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            concerned him so he paid the fine sometime online
            before January 16, 2015. The refund check is dated
            February 19, 2015, and the criminal complaint was
            filed on February 17, 2015.

                  At the conclusion of the pretrial hearing, the
            Court took the matter under advisement and allowed
            the parties to submit post-hearing briefs in support
            of their positions. Both parties filed their briefs on
            August 12, 2015.

Trial court opinion, 8/17/15 at 1-4 (citations to notes of testimony and

exhibit numbers omitted).

     The record reflects that the trial court denied appellant’s pre-trial

motion.    Following a waiver trial, the trial court convicted appellant of

two counts of DUI and one summary count of maximum speed limits. The

day after the trial court imposed judgment of sentence, appellant filed his

notice of appeal to this court, together with a statement of errors

complained of on appeal. The trial court never directed appellant to file a

Pa.R.A.P. 1925(b) statement, and the trial court never filed a Rule 1925(a)

opinion.   The trial court, however, had previously filed an opinion on

August 17, 2015, when it denied appellant’s pre-trial motion and found that

18 Pa.C.S.A. § 110 (compulsory joinder statute) did not bar appellant’s DUI

prosecution.

     Appellant now raises the following issue for our review:

            Did the trial court err in refusing to dismiss the
            charges of Counts 2 and 3 [DUI], as prosecution of
            those charges was barred by 18 Pa.[C.S.A.
            §] 110(1)(i) and/or 110(1)(ii)?



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Appellant’s brief at 2.

      When reviewing issues concerning the compulsory joinder statute, this

court’s standard of review is plenary. Commonwealth v. George, 38 A.3d

893, 896 (Pa.Super. 2012). The compulsory joinder statute is a legislative

mandate that provides that a subsequent prosecution for a violation of a

statutory provision that differs from a former prosecution or is based upon

independent facts will be barred in certain circumstances. Commonwealth

v. Fithian, 961 A.2d 66, 71 (Pa. 2008). Our supreme court has developed a

four-pronged test which must be satisfied when determining whether the

compulsory joinder statute bars a subsequent prosecution as follows:

            (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).

      Here, with respect to the first prong, appellant complains that because

he responded to a notice he received concerning suspension of his driver’s

license for failure to respond to a summary offense citation by making an

on-line payment that was eventually returned to him, the compulsory

joinder statute barred his DUI prosecution because that on-line payment

constituted his entry of a guilty plea in a former prosecution. We disagree.

      The Crimes Code defines a “conviction” as follows:



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            There is a conviction if the prosecution resulted in a
            judgment of conviction which has not been reversed
            or vacated, a verdict of guilty which has not been set
            aside and which is capable of supporting a judgment,
            or a plea of guilty accepted by the court. In the
            latter two cases failure to enter judgment must be
            for a reason other than a motion of the defendant.

18 Pa.C.S.A. § 109(3); see also Commonwealth v. Schmotzer, 831 A.2d

689, 694 (Pa.Super. 2003). Moreover, this court has held that Section 109

applies “only to former prosecutions which resulted in a plea of guilty which

continues to stand accepted by the court.”     Schmotzer, 831 A.2d at 695

(citation omitted).

      Here, nothing in the record demonstrates that appellant pled guilty to

maximum speed limits or that a court accepted a guilty plea from appellant

that continues to stand. Accordingly, there was no conviction as defined by

Section 109(3). Therefore, because appellant cannot satisfy the first prong

required for application of the compulsory joinder statute, the statute did not

bar his DUI prosecution, and we need not address his remaining complaint.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2016




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