J-S39006-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ISIAH GONZALEZ, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1769 EDA 2019

Appeal from the Judgment of Sentence Entered May 16, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0000288-2018

BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 02, 2020

Isiah Gonzalez appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County. After careful review, we affirm 

in part, vacate in part, and remand. 

On December 27, 2017, Officer Lewis Kerr was on solo patrol on North 

5

th Street in Philadelphia. Officer Kerr stopped Gonzalez for a taillight violation

and called for backup. When Officer Kerr approached Gonzalez’s vehicle, he 

detected a strong odor of marijuana and saw “blunts” (marijuana cigars) in

the ashtray. Gonzalez acknowledged he had marijuana on his person and did 

not have a valid driver’s license. When Officer’s Kerr’s backup arrived, Officer 

Kerr asked Gonzalez to exit the vehicle. Following a protective search, Officer 

Kerr recovered a jar of marijuana from Gonzalez’s jacket pocket. After a 

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* Retired Senior Judge assigned to the Superior Court.
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search of the vehicle, Officer Kerr recovered a loaded semi-automatic 

handgun. N.T. Waiver Trial, 2/15/19, at 10-18. Gonzalez did not have a 

license to carry a firearm and, in fact, was ineligible to obtain one.1 

Gonzalez was arrested. Following a secondary search of his person at 

the police station, officers recovered a glass jar containing phencyclidine (PCP)

from Gonzalez’s jacket. Id. at 26. Officer Kerr issued two tickets to Gonzalez: 

one for driving with an inoperable brake light, and one for driving with a 

suspended license. Id. at 24-25. Gonzalez was charged with firearms not to 

be carried without a license,2 a felony of the third degree, as well as the 

following misdemeanor charges: possession of a controlled substance,3

possession of firearm prohibited,4 carrying firearms in public in Philadelphia,

5

and possession of marijuana.6 

Gonzalez did not file pretrial motions, and he waived his right to a jury 

trial. On February 15, 2019, Gonzalez was tried before the Honorable 

Giovanni O. Campbell. The court convicted Gonzalez of carrying a firearm 

without a license, possession of a firearm by a person prohibited, and 

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1 Gonzalez was on probation for unlawful gun possession at the time of his 

arrest.

 

2 18 Pa.C.S.A. § 6106(a)(1).

3 35 P.S. § 780-113(a)(16).

4 18 Pa.C.S.A. § 6105(a)(1).

5 18 Pa.C.S.A. § 6108.

6 35 P.S. § 780-113(a)(31).
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possession of a controlled substance. The court scheduled sentencing for 

May 16, 2019. 

The day before sentencing, on May 15, 2019, Gonzalez filed a motion 

for dismissal pursuant to 18 Pa.C.S.A. § 110 (compulsory joinder). In his 

motion, Gonzalez alleged that on February 28, 2018, he had been adjudicated 

guilty in absentia of two summary traffic offenses that he was cited for on

December 27, 2017, the same day he was stopped and charged with the 

aforementioned offenses. Gonzalez argued in his motion that section 110 of 

the Crimes Code, as interpreted in the Pennsylvania Supreme Court’s decision 

in Commonwealth v. Perfetto, 207 A.3d 812 (Pa. 2019), prohibited his 

prosecution for the drug and firearm offenses. 

On May 16, 2019, the trial court denied Gonzalez’s motion and 

sentenced Gonzalez to three to six years’ imprisonment, followed by five 

years’ probation. Gonzalez filed a timely notice of appeal. 

On appeal, Gonzalez claims the trial court erred in denying his motion 

to bar prosecution pursuant to 18 Pa.C.S.A. § 110(1)(ii).

7 He argues that 

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7 Subsection 110(1)(ii) of the compulsory joinder rule provides, in relevant 

part: 

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 
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because he had already been prosecuted for the traffic violations, and because 

the felony and misdemeanor charges arose from the same criminal episode, 

the Commonwealth should have prosecuted the charges together. Gonzalez 

contends the subsequent prosecution is barred pursuant to Perfetto.

8

 

In Perfetto, our Supreme Court explained the four-part test to 

determine if prosecution is appropriately barred, as follows: (1) the former 

prosecution must have resulted in an acquittal or conviction; (2) the current 

prosecution is based upon the same criminal conduct or arose from the same 

criminal episode as the former prosecution; (3) the prosecutor was aware of 

the instant charges before the commencement of the trial on the former 

charges; and (4) the current offense occurred within the same judicial district 

as the former prosecution. Perfetto, supra at 821. See 18 Pa.C.S.A. § 

110(1)(ii), supra n. 7. 

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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[.]

18 Pa.C.S.A. § 110(1)(ii) (emphasis added).

8 Our standard of review of issues concerning the compulsory joinder rule is 

plenary. Commonwealth v. Reid, 35 A.3d 773, 776 (Pa. Super. 2012).
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The Commonwealth argues, inter alia, that Gonzalez waived his 

compulsory joinder claim. The Commonwealth points out that Gonzalez 

waited until after trial and conviction—in fact until the eve of sentencing—to 

seek dismissal of the charges. 

For the reasons that follow, we conclude that because there was no 

affirmative action on Gonzalez’s part in seeking severance or opposing 

consolidation, we do not find waiver; instead, we hold that a straightforward 

application of Perfetto bars the subsequent prosecution of Gonzalez’s 

misdemeanor charges. 

In Commonwealth v. Dawson, 87 A.3d 825 (Pa. Super. 2014), this 

Court recognized that “claims going to compulsory joinder are waivable.” Id.

at 827. In Dawson, defendant was charged with various drug and related 

offenses in eleven different cases. The Commonwealth filed a notice of 

joinder, and defendant filed a motion to sever three of the cases, claiming 

prejudice. The Commonwealth opposed the motion to sever. The trial court 

granted defendant’s motion to sever and those three cases were tried before 

a jury. Defendant was convicted of all charges except two conspiracy counts. 

The remaining eight cases were placed on the docket. Defendant filed a 

motion to dismiss those cases, arguing the Commonwealth had achieved a 

conviction and was required to prosecute all the charges that arose from the 

same criminal activity. Id. at 827. The trial court denied that motion, 

concluding that defendant had waived his claim by previously seeking and 

obtaining severance. Id. On appeal, defendant argued denial of his motion 
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violated 18 Pa.C.S.A. § 110 and the Double Jeopardy Clauses of the 

Pennsylvania Constitution and the United States Constitution. This Court also 

rejected defendant’s argument, stating: 

[Defendant] now argues that the Commonwealth was required to 

try all 11 cases together, which is simply another way of stating 

that his previous motion to sever should actually have been 

denied. [Defendant] may not now make this contradictory 

argument. We therefore unequivocally hold that where a 

defendant successfully seeks to sever certain charges from 

a case, he waives any argument under Section 110 and the 

Double Jeopardy Clauses that all charges should have been 

brought in one trial.

Id. at 829 (emphasis added). 

In Commonwealth v. Failor, 770 A.2d 310, 313 (Pa. 2001), 

consolidated with Commonwealth v. Blosser, defendants were both 

charged with speeding and driving while under suspension (DUS). Failor 

entered a guilty plea to speeding. He subsequently entered a guilty plea to 

DUS. Blosser entered a guilty plea to speeding. Thereafter, the court 

appointed counsel for Blosser, and he was tried before the district justice and 

convicted of DUS. Both Failor and Blosser appealed to the court of common 

pleas and filed motions to dismiss the DUS charges pursuant to 18 Pa.C.S.A. 

§ 110(1)(ii) and the federal and state constitutional double jeopardy 

provisions. The court of common pleas denied the motions to dismiss, 

reasoning that defendants were aware of the separate charges pending 

against them, and because they both pled guilty to their speeding citations 

without specifically objecting to their separate prosecutions for DUS, they had 
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waived their right to consolidate their speeding and DUS charges pursuant to 

section 110(1)(ii). On appeal, this Court agreed. The Pennsylvania Supreme 

Court reversed, noting that all four prongs of the section 110(1)(ii)9test were 

met. Id. at 313. The Court stated: 

This Court . . . has rendered a number of decisions that 

countenance against waiver unless the defendant has taken some 

sort of affirmative action to separate the prosecutions pending 

against him. See Commonwealth v. Stewart, [] 425 A.2d 346 

([Pa.] 1981); Commonwealth v. Muffley, [] 425 A.2d 350 ([Pa.] 

1981); Commonwealth v. Holmes, [] 391 A.2d 1015 ([Pa.] 

1978). These cases strongly suggest that the burden to protect a 

defendant from vexatious litigation and to conserve judicial 

resources rests squarely on the shoulders of the Commonwealth, 

and thus, it is the Commonwealth’s burden, rather than the 

defendant’s, to move for consolidated trials. 

Id. at 314 (emphasis added). The Court highlighted the Stewart case, 

wherein it indicated that a defendant should be said to have waived his right 

to a single trial “only when he affirmatively acts to separate the 

prosecution of charges pending against him.” Id. (emphasis added).

See Stewart, supra at 349-50 (Court spoke to broader principles of placing 

burden of joinder on Commonwealth and finding waiver only where defendant 

affirmatively acts to separate prosecutions); cf. Commonwealth v. Tarver, 

357 A.2d 539, 543 (Pa. 1976) (defendant affirmatively caused charges against 

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9 The fourth prong of the section 110(1)(ii) test previously read: “current 

charges and the former charges must be within the jurisdiction of a single 

court.” 1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973. In

2002, the General Assembly amended section 110 and replaced the quoted 

language with “occurred within the same judicial district as the former 

prosecution.” See 2002, June 28, P.L. 481, No. 82, § 1, effective in 60 days. 
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him to be separated by pleading guilty to one charge and demanding separate 

jury trial on other charge; it “was by [defendant’s] choice, not that of the 

state, that two separate proceedings were had to determine his guilt or 

innocence in charges arising from the same criminal episode.”). The Failor

Court also outlined the policy considerations behind the compulsory joinder 

rule: protecting defendants from governmental harassment of being subjected 

to successive trials for offenses stemming from the same criminal episode, 

and assuring finality without unduly burdening the judicial process by 

repetitious litigation. Failor, supra at 313.

Here, like in Failor and Stewart, and unlike Dawson, Gonzalez took 

no affirmative actions to either separate his trials or to oppose consolidation. 

Rather, the Commonwealth brought the successive prosecutions against him. 

In light of the policy reasons underlying section 110, as well as our Supreme 

Court’s “countenance against waiver unless the defendant has taken some 

sort of affirmative action to separate the prosecutions pending against him[,]” 

Failor, supra at 314, the burden is placed on the Commonwealth. “Mere 

silence by the defendant is insufficient to find that a defendant has 

affirmatively acted to block consolidation and therefore, waived a claim under 

[s]ection 110.” Id. at 315.

As we noted above, application of the plain language of subsection 

110(1)(ii) of the compulsory joinder statute to the circumstances presented 

here, like in Perfetto, makes clear that the Commonwealth was precluded 

from prosecuting Gonzalez for his misdemeanor charges. Gonzalez was 
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convicted in absentia of the former offenses, all of Gonzalez’s offenses arose 

from the same criminal episode, the prosecutors knew of the current offenses 

when they tried the former offenses in municipal court, and the offenses 

occurred within the same judicial district. 18 Pa.C.S.A. § 110(1)(ii); Perfetto, 

supra. Although the Commonwealth argues that Gonzalez has not 

demonstrated that the summary adjudications and the misdemeanor and 

felony prosecution arose from the “same criminal episode,” Commonwealth’s 

Brief, at 9, we find that argument specious and unsupported. 

However, as we read Perfetto, Gonzalez’s felony charge would not be 

barred from subsequent prosecution. The Perfetto Court stated that 

Perfetto’s “former prosecution for his summary offense was before a court 

(namely, the Philadelphia Municipal Court) that had jurisdiction to adjudicate 

all of [his] charges, albeit in the court’s General Division.” Perfetto, 207 

A.3d at 823 (emphasis added). Perfetto’s summary-offense prosecution 

occurred in the Philadelphia Municipal Court’s General Division, which had 

jurisdiction over Perfetto’s misdemeanor DUI charge. See 42 Pa.C.S.A. § 

1123(a)(1), (2) (Philadelphia Municipal Court’s criminal, subject-matter 

jurisdiction extends to “summary offenses,” . . . and “criminal offenses by 

any person (other than a juvenile) for which no prison term may be imposed 

or which are punishable by imprisonment for a term of not more than five 

years[.]”). Here, Gonzalez’s conviction for carrying a firearm without a 

license, in violation of section 6106(a) of the Uniform Firearms Act, is a thirddegree felony, punishable by a maximum imprisonment term of seven (7) 
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years. See 18 Pa.C.S.A. § 6106(a); 18 Pa.C.S.A § 1103(3). Gonzalez’s 

prosecution for carrying a firearm without a license, therefore, could not have 

been barred as the Municipal Court is without jurisdiction to adjudicate a 

felony charge. Gonzalez’s former prosecution for his summary offenses was 

before a court (namely, the Philadelphia Municipal Court) that did not have

jurisdiction to adjudicate his felony charge. See 42 Pa.C.S.A. § 1123(a)(1),

(2); see also Commonwealth v. Johnson, 221 A.3d 217 (Pa. Super. 

2019)10 (applying section 112 exception to section 110 compulsory joinder 

rule, Court held prior prosecution in municipal court for traffic violation did not 

bar prosecution in court of common pleas for charge of possession of heroin 

with intent to deliver, despite arising from same criminal episode in same 

judicial district with Commonwealth’s knowledge at time of prior prosecution, 

because municipal court’s jurisdiction extended only to any crime punishable 

by five years’ incarceration or less, and possession of heroin with intent to 

deliver carried maximum possible sentence of 15 years). 

We, therefore, vacate Gonzalez’s misdemeanor convictions of

possession of a controlled substance, possession of firearm prohibited, 

carrying firearms in public in Philadelphia, and possession of marijuana, and 

affirm his felony conviction of carrying a firearm without a license. As the trial 

court did not impose sentence on the misdemeanor conviction for possession 

of controlled substances, and imposed a probationary sentence on the 

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10 The Pennsylvania Supreme Court granted allowance of appeal in this case. 

See 2020 WL 4499079, 42 EAL 2020 (Pa. Aug. 5, 2020). 
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possession of firearms prohibited conviction, our disposition upsets the overall 

sentencing scheme. We therefore remand for resentencing on the felony 

conviction. See Commonwealth v. Wilson, 934 A.2d 1191, 1196 (2007).

Affirmed in part; vacated and remanded for resentencing. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/2/20