J

- A24002

- 22

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARIO RAMOS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1552 EDA 2021

Appeal from the Order Entered July 15, 2021

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

No(s): MC

- 51

- CR

- 0008480

- 2020

BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 13, 2022

Appellant, Mario Ramos, appeals from the trial court’s July 15, 2021

order denying his “Motion to Dismiss for Double Jeopardy,” in which Appellant

sought the dismissal of his pending criminal charges pursuant to the

compulsory joinder rule under 18 Pa.C.S. § 110. After careful review, we

affirm.

Appellant sets forth the facts of this case, as follows:

On May 3, 2020, ... []Appellant[] was arrested after police

recovered marijuana and a firearm from a vehicle that he was

operating. Incident to his arrest, [Appellant] was charged with

Violations of the Uniform Firearms Act (“VUFA”) (18 Pa.C.S. §§

6105, 6106, and 6108) and ... a preliminary hearing [was

scheduled for] May 19, 2020, in the Philadelphia Municipal Court.

[] Due to Covid

- related cou rt closings, the preliminary hearing was

continued several times into 2021. Also incident to his arrest,

[Appellant] was charged with possession of marijuana relative to

the marijuana recovered from his vehicle contemporaneously with

the firearm recovery. Relative to this marijuana recovery,

[Appellant] was issued a City of Philadelphia Code ViolationJ

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Notice [,] which demanded payment of a fine within ten days. 1

... [Appellant] did not timely respond to the Code Violation Notice.

At all times going forward, the Commonwealth was free to amend

the original Criminal Complaint to add the charge of possession of

marijuana.

1 Possession of marijuana is a crime (ungraded

misdemeanor) c odified at 35 P.[]S. § 780

- 113(a)(16)[, and]

punishable by up to one year in prison and a $5,000 fine.

Thereafter, [Appellant] received a second Notice of Code

Violation [,] dated August 3, 2020, from the City of Philadelphia.

This notice included, inter a lia

, payment instructions to satisfy the

violation online, in person, or by mail, and included the potential

consequences for the failure to pay the citation [,] which include d

“ additional penalties and further legal action, including the filing

of a Code E nforcement Complaint in Municipal Court. ” 2 After

receiving this notice in the mail, [Appellant] acknowledged the

violation and paid the penalty prescribed.

2 At this juncture in [Appellant’s] prosecution, the charges

relative to the firearm recovered in [Appellant’s] vehicle and

the charge relative to the marijuana recovered from

[Appellant’s] vehicle were both in the jurisdiction of the

Philadelphia Municipal Court.

***

Thereafter, [Appellant] was scheduled for a preliminary hearing

on May 7, 2021. The case was continued until June 25, 2021, and

on that date, [it] was continued until July 30, 2021. On June 28,

2021, [Appellant] filed a Motion to Dismiss for Double Jeopardy in

the Philadelphia Court of Common Pleas [,] relying upon

Pennsylvania ’ s compuls ory joinder statute, codified at 18 Pa.C.S.

§ 110. The motion was denied by the [trial court] on July 15,

2021. This interlocutory appeal is from that decision.

Appellant’s Brief at 3

- 4.

After Appellant filed a notice of appeal from the court’s July 15, 2021

order , the court ordered him to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Appellant timely complied, and the court then

filed a Rule 1925(a) opinion on January 11, 2022. Herein, Appellan t presentsJ

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one issue for our review: “Did the [trial] court commit an error of law when it

denied Appellant’s Motion to Dismiss for Double Jeopardy based on 18 Pa.C.S.

§ 110?” Id. at 2.

Before considering Appellant’s issue, we note that the trial court’s order

denying his motion to dismiss on double jeopardy grounds did not make a

specific finding as to frivolousness. See Pa.R.Crim.P. 587(b)(4) (“In a case in

which the judge denies the motion [for dismissal], the findings of fact shall

include a specific finding as to frivolousness.”). This Court recently explained:

[A] n order denying a double jeopardy motion, that makes no

finding that the motion is frivolous, is a collateral order under Rule

313 of the Pennsylvania Rules of Appellate Procedure:

Rule 31 3. Collateral Orders

(a) General rule. An appeal may be taken as of right from

a collateral order of an administrative agency or lower court.

(b) Definition. 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 (effective July 4, 2013). Rule 313 is jurisdictional

in nature. Commonwealth v. Blystone

, ... 119 A.3d 306, 312

( [Pa.] 2015). The Note to Rule 313 states that an established

example of a collateral order is an order denying a pretrial motion

to dismiss “based on double jeopardy in which the court does not

find the motion frivolous.” Pa.R.A.P. 313 Note (citing Orie, supra

and Brady, supra ). The planned amendment to the official note

of Rule 313 continues this precedent and states in relevant part

as follows:

Official Note: If an order meets the definition of a collateral

order, it is appealed by filing a notice of appeal or petition

for review. Pa.R.A.P. 313 is a codification of existing case

law with respect to collateral orders.J

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- ***

Examples include... an order denying a pre

- trial motion to

dismiss on double jeopardy grounds if the trial court does

not also make a finding that the motion to dismiss is

frivolous. See Commonwealth v. Brady

, ... 508 A.2d 286,

289

– 91 (Pa. 1986) (allowing an immediate appeal from

denial of double jeopardy claim under collateral order

doctrine where trial court does not make a finding of

frivolousness); Commonwealth v. Orie

, ... 22 A.3d 1021

(Pa. 2011). An order denying a pre

- trial motion to dismiss

on double jeopardy grounds that also finds that the motion

to dismiss is frivolous is not appealable as of right as a

collateral order, but may be appealable by permission under

Pa.R.A.P. 1311(a)(3).

Pa.R.A.P. 313, Official Note (effective August 1, 2020). Bearing

the relevant version of Rule 313 in mind, along with the planned

amendment, Pennsylvania law makes clear that an order

denying a double jeopardy motion, which makes no finding

that the motion is frivolous, is a collateral order under Rule

313 an [d] immediately appealable. See id.

Commonwealth v. Gross

, 232 A.3d 819, 832

– 33 (Pa. Super. 2020) ( en

banc )

, appeal denied

, 242 A.3d 307 (Pa. 2020) (some emphasis omitted ;

some emphasis added)

. Following Gross

, we conclude that the court’s order

in this case is immediately appealable.

Moving on to the merits of Appellant’s issue, he contends that the court

erred by not dismissing his firearm charges under the compulsory joinder rule

set forth in section 110

, “which requires the Commonwealth to join for trial all

offenses that occur within the same judicial district.” Appellant’s Brief at 6.

According to Appellant, he “pled guilty to the marijuana possession and paid

a $25 fine[,]” thereby prohibiting the Commonwealth from prosecuting him

separately for his firearm offenses, which “arose from the same criminal

episode as the marijuana possession offense.” Id. at 5

- 6.J

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Appellant’s argument that the trial court incorrectly declined to dismiss

his charges under the compulsory

- joinder rule presents a pure question of

law. “Consequently, our scope of review is plenary, and our standard of

review is de novo .” Commonwealth v. Perfetto

, 207 A.3d 812, 821 (Pa.

2019).

Section 110, entitled, “When prosecution barred by former

prosecution for different offense,” states, in pertinent 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 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. § 110 (emphasis added).

Thus, as Appellant correctly summarizes,

under [s]ection 110, a subsequent prosecution is barred by a

former prosecution if four requirements are met. First

, the former

prosecution resulted in an acquittal or a conviction. Second

, the

current prosecution arose from the same criminal episode as the

former prosecution. Third, the current offense was known to the

prosecutor at the time of the commencement of the former

prosecution. Fourth, the current offense occurred in the sameJ

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judicial district as the former prosecution. See Commonwealth

v. Fithian

, 961 A.2d 66, 72 (Pa. 2008).

Appellant’s Brief at 11.

Inst antly, Appellant concludes that,

[a]ll four requirements of [s] ection 110 are clearly met here.

First, the former prosecution of [Appellant] resulted in a guilty

plea for possessing marijuana, and the imposition and payment of

a $25 fine. Second, the current prosecution arose from the same

criminal episode as the violation for possessing marijuana.

... Third, the Philadelphia District Attorney’s Office

— who reviewed

the [Philadelphia Police Department Arrest Report] in approving

the [firearm] charges, clearly knew of both prosecutions [,] as all

the paperwork generated by the arresting officers referenced not

only the possession of a firearm and marijuana, but further

referenced that [Appellant] was issued a Code Violation Notice for

the marijuana possession. Fourth, both prosecutions occurred

within the same judicial district, namely, the First Judicial District

of Pennsylvania. B ecause all four requirements of [s] ection 110

are met in this case, the lower court erred as a matter of law in

denying Appellant ’ s motion to dismiss.

Id. at 11

- 12 (footnote omitted).

Based on this Court’s recent

, en banc decision in Commonwealth v.

Bennett

, 246 A.3d 875 (Pa. Super. 2021) ( en banc ), appeal denied

, 263 A.3d

1137 (Pa. 2021) , we disagree with Appellant’s argument. In that case,

[Bennett] was stopped by police for driving with an illegal window

tint. During the stop, it was determined that [Bennett] was

driving with a suspended license, and a search of his vehicle

yielded a n illegal firearm under the floor pad. [Bennett] was cited

for the traffic violations, and arrested for/charged with Persons

Not to Possess Firearms, Firearms Not to Be Carried without a

License, and Carrying Firearms on Public Streets in Philadelphia.

O n May 24, 2019, counsel for [Bennett] appeared in traffic court

(Philadelphia Municipal Court) on behalf of [Bennett], to satisfy

the two citations. The Municipal Court had not scheduled a

hearing for Bennett, who remained in the county jail, and defense

counsel provided no notice to the Commonwealth that he intendedJ

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to appear and plead that Bennett was guilty of the summary

offense. Counsel paid the citation for the window tint, but was

told that he could not pay the citation for the suspended license,

b ecause [Bennett] was not physically present. Several days later,

the Commonwealth withdrew the charges on the suspended

license.

On June 24, 2019, [Bennett] filed a Motion to Dismiss the

[firearm] charges in common pleas court pursuant to

... Perfetto

, 207 A.3d 812

... . [ 1 ] The [trial court] took the matter under

advisement, and on August 9, 2019, entered an Order denying

[Bennett ’ s] Motion.

Id. at 876 (some citations and brackets omitted).

On appeal to this Court, we concluded that section 110 did not ap ply to

Bennett’s case. We stressed that, “ [f] or [section 110] to apply, a ‘ former

prosecution ’ is required. ” Id. at 878. We explained that our “ Court has held

that paying a fine and pleading guilty to a summary offense without notice to

the district attorney and appearing before a judicial officer is not a ‘ former

prosecution ’ to which [s] ection 110 applies. ” Id. For instance

,

[i] n Commonwealth v. Gimbara

, 835 A.2d 371 (Pa. Super.

2003)

... , the defendant received a citation for speeding and

another for driving with a suspended license. He mailed a guilty

plea and payment to the magistrate ’ s office for the charge of

speeding, but he also pleaded not guilty in that mailing to the

suspended

- license charge. The magistrate processed the

payment for the first offense and set a hearing date for the second

charge. Following that hearing, the magistrate found the

defendant guilty. The defendant appealed to the trial court and

moved that the suspended

- license charge be dismissed pursuant

_________________ __________ ______ __ __ _______

1 In Perfetto , the Pennsylvania Supreme Court held that section 110 generally

prohibits the government from proceeding with a prosecution subject to the

jurisdiction of the Philadelphia Municipal Court, after a summary offense

arising from the same criminal episode had been adjudicated in the Traffic

Division of that court.J

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to the compulsory

- joinder

- rule. The trial court denied relief, and

this Court affirmed.

The Gimbara Court explained that a defendant must satisfy all

four prongs of the below test to compel a dismissal under Section

110:

(1) the former prosecution resulted in an acquittal or a

conviction, (2) the current prosecution must be based on

the same criminal conduct or have arisen from the same

criminal episode as the former prosecution, (3) the

prosecutor must have been aware of the current charges

before the commencement of the trial for the former

charges, and (4) the current charges and the former

charges must be within the jurisdiction of a single court.

Gimbara

, 835 A.2d at 373

– 74 (quoting Commonwealth v.

Failor

, ... 770 A.2d 310, 313 ( [Pa.] 2001)). This Court then opined

that “The third [prong] has not been met, because there was

never a former prosecution to which this prosecution is

subsequent.” Id. at 376. Mailing in the fine and guilty plea

for one offense was not a “former prosecution” under the

compulsory

-

joinder rule, because the defendant did not

stand trial. Thus, the protections of [s] ection 110 never

attached. Because he “was not subjected to successive trials for

offenses stemming from the same criminal episode,” id.

, the

defendant ’ s prosecution for driving with a suspended license could

proceed to trial.

Bennett

, 246 A.3d at 878 (emphasis added)

.

The Bennett panel concluded that the rationale of Gimbara applied

equally to the facts of Bennett’s case, despite that Bennett sent his lawyer to

pay the fine for his summary offense

, rather than mailing it. Id. at 879. We

explained:

Like the defendant in Gimbara

, Bennett did not stand trial before

the minor judiciary. The Commonwealth never “subjected

[Bennett] to successive trials for offenses stemming from the

same criminal episode, [and his firearm

- related charges are] not

barred under [s] ection 110” by filing a guilty plea with court staffJ

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and paying a fine for his tint ed windows. Gimbara

, 835 A.2d at

376.

The Commonwealth had no control over when Bennett ’ s attorney

decided to appear at the in

- take window of the Municipal Court of

Philadelphia, any more than it could control when a defendant

mails in a guilty plea and fine for a summary offense. “When a

defendant appears in person before a [magisterial district judge],

the prosecuting officer may prevent the entry of different pleas,

thus exercising the burden placed upon the Commonwealth by

[s] ection 110.” Id. at 377. But where a defense attorney enters

a guilty plea before court staff, without first informing the

Commonwealth

, “such an opportunity is not presented, because

the prosecuting officer has no notice of when the pleas come into

the [Municipal Court] office.” Id. “Where there is no opportunity

for the Commonwealth to exercise its obligation under [s] ection

110, the purposes of [s] ection 110 would not be advanced.” Id.

Accordingly, as in Gimbara

, we find no error in the trial court ’ s

refusal to dismiss the felony and misdemeanor charges against

Bennett. Section 110 does not apply under this procedural

posture.

Id. (emphasis in original, footnote omitted ).

The facts of this case are analogous to Gimbara and Bennett

.

Appellant did not stand trial before the minor judiciary , and he was never

subjected to successive trials for offenses arising from the same criminal

episode. Thus, he was not subjected to a ‘f ormer prosecution’ to which section

110 would apply simply because he pled guilty and paid a fine online.

Accordingly, the Commonwealth is not bar red from prosecuti ng him for his

firearm offenses.

We note that Appellant attempts to distinguish Bennett from the instant

case, arguing that “in Bennett

, there was no evidence

... that indicated the

Commonwealth knew that motor vehicle citations were issued to Bennett. By

contrast, the Commonwealth here clearly knew that [Appellant] was beingJ

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charged not just with firearm offenses but also with possessing marijuana.”

Appellant’s Brief at 14.

We are unconvinced. T he Bennett panel did not stress the

Commonwealth’s lack of knowledge of the charges against Bennett. Instead,

it emphasized that the Commonwealth had no notice that Bennett’s attorney

had entered a plea on Bennett’s behalf

. See id. at 879 (“ But where a

defense attorney enters a guilty plea before court staff, without first

informing the Commonwealth

, “such an opportunity is not presented,

because the prosecuting officer has no notice of when the pleas come into the

[Municipal Court] office.” ) ( some emphasis in original ; some emphasis added ).

Here, Appellant does not claim that he notified the Commonwealth that he

was going to ple a d guilty and pa y his fine. Thus, the Commonwealth’s

knowledge that Appellant was issued a citation for possession of marijuana

did not trigger application of section 110.

Therefore, in accordance with Bennett and Gimbara

, we conclude that

Appellant was not subject ed to a ‘former prosecution’ when he pled guilty and

paid the fine for his offense of possessing marijuana. Accordingly, section 110

does not bar the Commonwealth from prosecuting Appellant for his pending

firearm offenses, and the court properly denied Appellant’s motion to dismiss.

Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished.J

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/13/2022