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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 influence1

(“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 

accepted/satisfied on January 20th. 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