J-S01012-20

2020 PA Super 119

COMMONWEALTH OF PENNSYLVANIA

v.

KELSEY PAMMER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1356 EDA 2019

Appeal from the Order Entered April 1, 2019

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

No(s): CP-39-CR-0005565-2018

BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

OPINION BY BOWES, J.: FILED MAY 20, 2020

Kelsey Pammer appeals from the pre-trial order denying her motion to 

dismiss charges of driving under the influence (“DUI”) of a controlled 

substance1, possession of cocaine2, possession of methamphetamine3, and 

possession of drug paraphernalia4 under Pennsylvania’s compulsory-joinder 

rule at 18 Pa.C.S. § 110. After careful review, we reverse the order and 

remand the case for further proceedings consistent with this opinion. 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(D)(2), general impairment – first offense.

2 35 Pa.C.S. § 780-113(A)(16), an ungraded misdemeanor.

3 35 Pa.C.S. § 780-113(A)(16), an ungraded misdemeanor.

4 35 Pa.C.S. § 780-113(A)(32), an ungraded misdemeanor.
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On October 24, 2018, Officer Kevin Azar of the South Whitehall 

Township Police Department responded to a motor vehicle accident at Mauch 

Chunk Road in Lehigh County. Appellant was a driver involved in the accident 

and was transported to a local hospital for treatment. During the cleanup of 

the roadway and Appellant’s vehicle, officers discovered three clear bags on 

the floor of the passenger side of the vehicle. Two of the bags field-tested 

positive for cocaine, and the third field-tested positive for methamphetamines. 

An analysis of Appellant’s blood, which was obtained through a search 

warrant, revealed the presence of cocaine. A criminal complaint was filed 

charging Appellant with the above captioned crimes.

Officer Azar issued a separate citation for reckless driving, a summary 

offense, in the same October 24, 2018 incident. On December 4, 2018, 

Appellant appeared before a magisterial district judge, entered a guilty plea 

to the summary charge of reckless driving, and a sentence was imposed. 

Appellant waived her preliminary hearing on the DUI and related offenses. 

Thereafter, on the date of her formal arraignment, she filed an omnibus 

pretrial motion seeking dismissal of the DUI and related offenses pursuant to 

Pennsylvania’s compulsory joinder statute. See 18 Pa.C.S. § 110. 

A hearing on Appellant’s motion was held on March 27, 2019, at which 

Officer Azar testified that he “accidentally pushed a button” while filing the 

criminal charges that generated a separate summary offense citation. See 

N.T. Hearing, 3/27/19, at 6. The Commonwealth argued that because 

reckless driving and DUI contain independent elements that the 
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Commonwealth must prove in order to achieve convictions, prosecution 

should not be barred. The trial court agreed and issued an order and opinion 

denying the motion to dismiss. This interlocutory appeal immediately followed

without an order seeking compliance with Pa.R.A.P. 1925.

5

 

Appellant raises the following issue for our review: “Should the charges 

against [Appellant] have been dismissed pursuant to [s]ubsection 110(1)(ii) 

of Pennsylvania's compulsory joinder statute based on the prior adjudication 

of her summary traffic offense?” Appellant’s brief at 4.

Our standard of review of a motion to dismiss on the basis of compulsory 

joinder principles pursuant to § 110 is de novo, and the scope of our review 

is plenary. See Commonwealth v. Perfetto, 207 A.3d 812, 821 (Pa. 2019) 

(“Perfetto II”). The compulsory joinder rule states 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 . . . and the subsequent prosecution is 

for:

____________________________________________

5 As a general rule of Pennsylvania law, a defendant has the right to an 

immediate appeal from an order denying a pretrial motion to dismiss on 

double jeopardy grounds. Commonwealth v. Orie, 22 A.3d 1021, 1024 (Pa. 

2011); Commonwealth v. Gross, ___ Pa.Super. ___, 375 EDA 2016 (filed 

April 29, 2020) (en banc); see also Pa.R.A.P. 313, Official Note (an order 

denying a double jeopardy motion that makes no finding of frivolousness is a 

collateral order). Here, the trial court found that “the matter is immediately 

appealable as a collateral order.” See Trial Court Order, 4/1/19. Thus, the 

interlocutory appeal was filed properly and Appellant may seek review.
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(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. § 110(1)(ii). Our Supreme Court has distilled this statute into a 

four-part test to determine if prosecution is appropriately barred: (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 II, supra at 821. 

Appellant argues that these four prongs are easily met here. First, the 

former prosecution of the traffic offense resulted in a conviction, more 

specifically, a guilty plea to reckless driving. See Appellant’s brief at 13. 

Second, the DUI prosecution was based upon the same criminal episode, 

namely a motor vehicle accident in the 1800 block of Mauch Chunk Road on 

October 24, 2018. Id. at 14-15. Third, the prosecutor was aware of the 

instant charges, since the citation for the summary traffic offense was issued 

at the same time and by the same officer as the criminal complaint. Id. at 
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15. Finally, all of the offenses occurred within the same judicial district of 

Lehigh County. Id. at 17.

The Commonwealth originally invoked a line of cases beginning with 

Commonwealth v. Beatty, 455 A.2d 1194, 1198 (Pa. 1983) (holding that 

traffic violations under the Motor Vehicle Code are excluded from the remit of 

the compulsory joinder rule pursuant to § 110(2)(ii)), and contended that 

because the charges require proof of different elements, dual prosecutions 

were not barred by the compulsory joinder statute. However, the 

Commonwealth now concedes that our Supreme Court’s holding in Perfetto 

II extinguished its previous argument. See Commonwealth’s brief at 9. 

In Commonwealth v. Perfetto, 169 A.3d 1114 (Pa.Super. 2017) (en 

banc), the defendant was cited for a summary offense, charged separately 

with three counts of DUI, and found guilty of the summary offense in the traffic 

division of the Philadelphia Municipal Court. After a preliminary hearing, the 

defendant’s DUI charges were bound over for trial and he filed a motion to 

dismiss based on the compulsory joinder rule. The trial court granted the 

motion and dismissed the DUI charges; the Commonwealth appealed. This 

Court reversed the trial court, concluding that because the defendant’s 

summary traffic offense could only be tried in the traffic division of the 

Philadelphia Municipal Court, the subsequent prosecution for the DUI charges 

did not run afoul of the compulsory joinder rule. Id. at 1124-25. 
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Our Supreme Court disagreed. In Perfetto II, it explained that while 

the traffic division of the Philadelphia Municipal Court had limited jurisdiction 

to consider only summary traffic offenses, the general division of the 

Philadelphia Municipal Court had jurisdiction to adjudicate any matter that was 

properly before it. Perfetto II, supra at 822-23. Therefore, because the 

Commonwealth could have proceeded on all of the charges before the general 

division of municipal court and did not do so, it was precluded from 

prosecuting the defendant for his remaining charges. 

As a result of the holding in Perfetto II, the Commonwealth now seeks 

to continue its DUI prosecution of Appellant by utilizing an exception to § 110, 

codified at 18 Pa.C.S. § 112 and applied in Commonwealth v. Johnson, 221 

A.3d 217 (Pa.Super. 2019). See Commonwealth’s brief at 11. Section 112 

provides, in relevant part, that a former “prosecution is not a bar within the 

meaning of section 109 of this title . . . through 111 of this title . . . [if t]he 

former prosecution was before a court which lacked jurisdiction of the 

defendant or the offense.” 18 Pa.C.S. § 112(1). 

In Johnson, the defendant was charged with driving with a suspended 

license, possession of heroin, and possession with intent to deliver heroin 

(“PWID”). Before bringing the drug charges in the Philadelphia Court of 

Common Pleas, the Commonwealth tried and convicted the defendant of the 

summary offense in the traffic division of the Philadelphia Municipal Court. 

The defendant moved to dismiss the drug charges on the grounds that the 
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Commonwealth was required to try all of his offenses simultaneously under 

18 Pa.C.S. § 110. The trial court refused to dismiss the drug charges. While 

the defendant’s appeal was pending, Perfetto II was decided. Applying 

Perfetto II to the facts before it, the Johnson Court affirmed the trial court, 

concluding that the prosecution of the PWID charge in the court of common 

pleas was not barred by 18 Pa.C.S. § 110 because it met the § 112(1)

exception. 

In order to determine whether the defendant’s former prosecution 

occurred before a court that had jurisdiction to decide the remaining charges, 

the Johnson Court engaged in a statutory analysis of the provisions that 

govern the jurisdiction of the Philadelphia Municipal Court. Importantly, its

review revealed that, under 42 Pa.C.S. § 1123(a)(2),

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the Philadelphia 

Municipal Court’s jurisdiction was limited to the consideration of criminal 

offenses where the maximum length of incarceration upon conviction was five 

years. Since Appellant faced a maximum potential sentence of fifteen years’

incarceration if convicted of the PWID charge, the Johnson Court concluded 

that the Philadelphia Municipal Court did not have jurisdiction to decide the 

PWID charge. Accordingly, the court of common pleas could properly assert 

its separate, original jurisdiction over that charge under § 112(1). 

____________________________________________

6 “[T]he Philadelphia Municipal Court shall have jurisdiction of . . . . 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. . . .” 42 Pa.C.S. § 1123(a)(2).
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While 42 Pa.C.S. § 1123(a)(2) clearly does not apply to Lehigh County, 

we find the approach taken by the Johnson Court instructive. Accordingly, 

we now proceed to consider whether Appellant’s former prosecution occurred 

before a court that lacked jurisdiction for the DUI, possession, and possession 

of drug paraphernalia charges. 

Appellant relies exclusively upon § 110 and has not filed a reply brief to 

contest the Commonwealth’s new assertion of an exception to Perfetto II

under § 112. However, the Commonwealth argues that it can proceed on all 

of the charges because, consistent with Johnson, supra, the magisterial

district judge in Lehigh County did not have jurisdiction over any of Appellant’s

other pending charges under 42 Pa.C.S. § 1515. See Commonwealth’s brief 

at 13-14. We disagree.

Pursuant to 42 Pa.C.S. § 1515, magisterial district judges have 

jurisdiction over summary offenses, certain third-degree misdemeanors, and

some additional offenses under the following circumstances:

(5) Offenses under 75 Pa.C.S. § 3802 (relating to driving under 

influence of alcohol or controlled substance), if the following 

criteria are met:

(i) The offense is the first offense by the defendant 

under such provision in this Commonwealth.

(ii) No personal injury (other than to the defendant) 

resulted from the offense.

(iii) The defendant pleads guilty.
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(iv) No property damage in excess of $500 other than 

to the defendant's property resulted from the 

violation.

(v) The defendant is not subject to the provisions of 

Chapter 63 (relating to juvenile matters).

(vi) The arresting authority shall cause to be 

transmitted a copy of the charge of any violation of 75 

Pa.C.S. § 3802 to the office of the clerk of the court 

of common pleas within five days after the preliminary 

arraignment.

In determining that the above criteria are met the magisterial 

district judge shall rely on the certification of the arresting 

authority. Certification that the criteria are met need not be in 

writing. Within ten days after the disposition, the magisterial 

district judge shall certify the disposition to the office of the clerk 

of the court of common pleas in writing.

. . . . 

(6)(i) Offenses under Title 18 (crimes and offenses), Title 30 (fish) 

and Title 35 (health and safety) which are classified as 

misdemeanors of the third degree, if the following criteria are 

met:

(A) The misdemeanor is not the result of a reduced 

charge.

(B) Any personal injury or property damage is less 

than $500.

(C) The defendant pleads guilty.

(D) The defendant is not subject to the provisions of 

Chapter 63.

42 Pa.C.S. § 1515(a)(5), (a)(6). Notably, “ungraded misdemeanors” or “[a] 

crime declared to be a misdemeanor, without specification of degree” is 

considered to be a misdemeanor of the third degree. 18 Pa.C.S. § 106(b)(9). 
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Finally, “while statutes generally should be construed liberally, penal statutes 

are always to be construed strictly, 1 Pa.C.S. § 1928(b)(1), and any ambiguity 

in a penal statute should be interpreted in favor of the defendant.” 

Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005).

Although Appellant was charged with a first-offense DUI, the 

Commonwealth contends that the magisterial district judge lacked jurisdiction 

to decide this DUI because Appellant injured the driver in the vehicle that she 

struck. See Commonwealth’s brief at 15-16. Further, the Commonwealth 

asserts that there is a “longstanding general practice” that magisterial district 

judges do not hear DUI cases because they lack sufficient information at the 

preliminary hearing stage to determine if the defendant had previously 

committed prior offenses under that statute. Id. at 16. Finally, the 

Commonwealth contends that it may continue with the prosecution of drug 

paraphernalia and possession because they are ungraded misdemeanors and 

§ 1515 does not confer jurisdiction on magisterial district judges to handle 

ungraded misdemeanor cases. 

There is no evidence in the record to support any of the 

Commonwealth’s contentions. Since Appellant waived her preliminary 

hearing, the only facts that have been adduced are contained in the affidavit 

of probable cause, which states in its entirety as follows:

1. Your affiant, Kevin Azar, is a duly sworn Police Officer 

employed by South Whitehall Twp. PD, since 2017. Currently 

holding the rank of patrol officer.
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2. On October 24th, 2018 at approximately 1600 hours. Your 

affiant responded to Mauch [C]hunk Rd for a motor vehicle 

accident. A Blue Pontiac Sunfire, PA reg [. . . .] was involved in 

an accident on Mauch Chunk Rd. The operator drove into 

oncoming traffic and struck another vehicle.

3. The defendant Kelsey Pammer was pinned under the 

steering wheel and had to be extracted and taken to Lehigh Valley 

Cedar Crest by Cetronia Ambulance. During the cleanup of the 

vehicle in the roadway, 3 small clear bags were found on the floor 

of the passenger side of Pammer[’]s vehicle. Two bags field tested 

positive for Cocaine, and 1 bag field tested positive for Meth.

4. A search warrant for legal blood was drafted and approved 

by Chief ADA Renee Smith. Results yielded 66 ng/ml for Cocaine.

Affidavit of Probable Cause, 11/19/18. 

Stated simply, there is no information in this recitation indicating that 

anyone other than Appellant was injured. Furthermore, the Commonwealth’s 

second contention does nothing to support its argument. If the magisterial 

district judge had subject matter jurisdiction over the other charges against 

Appellant and simply declined to exercise it according to a “longstanding 

practice,” then § 112 has not been met. It is axiomatic that “[a]ny issue going 

to the subject matter jurisdiction of a court or administrative tribunal to act in 

a particular matter is an issue that parties cannot waive by agreement or 

stipulation, estoppel, or waiver.” Step Plan Services, Inc. v. Koresko, 12 

A.3d 401, 417 (Pa.Super. 2010).

Finally, “ungraded misdemeanors” are third-degree misdemeanors. 

See 18 Pa.C.S. § 106(b)(9). Appellant was charged with three ungraded 

misdemeanors: possession of cocaine, possession of methamphetamine, and 
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possession of drug paraphernalia. Therefore, the magisterial district judge

also enjoyed limited jurisdiction over these third-degree misdemeanor 

narcotics charges pursuant to Pennsylvania statute if the requirements of 42 

Pa.C.S. § 1515(6)(i) were met. Accordingly, the Commonwealth’s bald 

assertion that the magisterial district judge lacked jurisdiction over these 

charges, without any specific argument pursuant to § 1515(6)(i), is

unsupported.

In the absence of any authority or evidence from the Commonwealth

establishing that the magisterial district judge lacked jurisdiction under § 

1515(5) and (6)(i), we cannot conclude that the Commonwealth has met its 

burden of establishing the applicability of the exception to the compulsory 

joinder statute enunciated at § 112. As detailed above, the certified record is 

devoid of the necessary facts the Commonwealth would need in order to meet 

the requirements of § 1515. Furthermore, the Commonwealth’s statutory 

analysis does not address all of the requirements listed in § 1515(5) and 

(6)(i). 

Accordingly, since the Commonwealth has not sustained its burden with 

respect to § 112, we are constrained to conclude that the compulsory joinder 

statute as interpreted by Perfetto II compels dismissal of the DUI and related 

charges.

Order reversed. Case remanded for further proceedings consistent with 

this opinion. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/2020