J. S 11 0 37 /1 9

NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

: KEVIN FORMAN
, : No. 214 E DA 20 18

: Appellant :

Appeal from the Order Entered November 20, 2017, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

- 51

- CR

- 0003805

- 2014

BEFORE: SHOGAN
, J., MURRAY , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 0 5 , 2019

Kevin Forman filed this interlocutory appeal challenging the

November 20, 2017 order entered in the Court of Common Pleas of

Philadelphia County that denied his motion to dismiss pursu ant to the

compulsory joinder rule found at 18 Pa.C.S.A. § 110(1)(ii). 1 In light of our

1 W ith respect to our jurisdiction over this appeal,

[ i] t is well settled in Pennsylvania that a defendant is entitled to an immediate interlocutory appeal as of right from an order denying a non

- frivolous motion to dismiss on state or federal double jeopardy grounds. Because the protection of the compulsory joinder of charges statute is in the nature of protection against double jeopardy, an order denying a motion to invoke that statute ’ s protection is similar ly subject to immediate appeal.

Commonwealth v. Barber , 940 A.2d 369, 376 (Pa.Super. 2007), appeal denied , 960 A.2d 835 (Pa. 2008) (internal citations and quotation marks omitted).J. S 11 0 37 /1 9

- 2

-

supreme court’s recent decision in Commonwealth v. Perfetto
, 2019

Pa.LEXIS 2314, 2019 WL 1866653 (filed April 26, 2019) (Pa. 2019), we

reverse

.

The trial court set fo rth the following procedural history:

Appellant was charged with Possession of a Firearm Prohibited, 18 Pa.C.S.[A.] § 6105 [(graded as a second

- degree felony)] , Carrying a Firearm Without a License, 18 Pa.C.S.[A.] § 6106 [(graded as a third

- degree felony)] , Carrying a Firearm on a Public Street, 18 Pa.C.S.[A.] § 6108 [(graded as a first

- degree misdemeanor)] , Knowing and Intentional Possession of a Controlled Substance, 35 P.S. § 780

- 113(A)(16 [) (graded as a first

- degree misdemeanor )] , and possession of an i nstrument of crime, generally, 18 Pa.C.S.[A.] § 907 [(graded as a first

- degree misdemeanor)] . Following [a]ppellant ’ s apprehension, in addition to the above charges, authorities issued summary traffic tickets [ 2 ] to [a]ppellant arising out of the same incid ent underlying the above criminal charges. Those tickets were disposed of by [a] ppellant when he appeared before this Court.

Based on the disposition o f the summary traffic tickets, [a] ppellant filed a Motion to Dismiss the criminal charges. He asserted that pursuant to 18 Pa.C.S. [A.] § 110, he is entitled to a discharge of the criminal matters because of the disposition of the tickets. He claims that he is entitled to such relief because Section 110 requires that every charge arising out of the same criminal matter be tried together and therefore, because the summary traffic tickets have already been disposed of, Section 110 prohibits the Commonwealth from trying him on the above

- listed criminal matters.

2 The record refl ects that appellant was issued one citation for careless driving in violation of 75 Pa.C.S.A. § 3714, to which he later pled guilty and received a $155 fine. ( See appellant ’ s “ memorandum of law in support of motion to dismiss prosecution pursuant to 18 P.S. section 110, ” at 5 and Exhibit A.)J. S 11 0 37 /1 9

- 3

- On Novemb er 20, 2017, this Court denied [a] ppell ant ’ s motion after which [a] ppellant filed an interlocutory appeal. He thereafter filed a requested Pa.R.A.P. 1925(b) [s] tatement of [errors complained of on appeal ]

.
Trial court opinion, 6/11/18 at 1

- 2. Subsequently, the trial court filed its

Rule 1925(a) opinion.

Appellant raises the following issue for our review.

DID THE TRIAL COURT ERR IN DENYING APPELLANT ’ S MOTION TO DISMISS THIS PROSECUTION PURSUANT TO 18 P.S. §110 WHERE THE COMMONWEALTH FAILED TO JOIN IN ONE PROSE CUTION ALL OFFENSES ARISING FROM THE SAME CRIMINAL EPISODE AND OCCURRING WITHIN THE SAME JUDICIAL DISTRICT, AND WHERE THE APPELLANT WAS CHARGED AND FOUND GUILTY OF A SUMMARY TRAFFIC OFFENSE PRIOR TO THE COMMENCEMENT OF TRIAL ON THE RELATED MISDEMEANOR AND FELONY CHARGES FORMING THE BA SIS FOR THE INSTANT PROSECUTION[?]

Appellant ’ s brief at 4.

Our standard of review of issues concerning the compulsory joinder rule,

18 Pa.C.S.A. § 110, is plenary. Commonwealth v. Reid , 35 A.3d 773, 776

(Pa.Super. 2012). Th e compulsory joinder rule bars a subsequent prosecution

if each of the following is met:

(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 e pisode; (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.J. S 11 0 37 /1 9

- 4

-

Reid , 77 A.3d at 582 (citation omitted; brackets in original).

Here, no dispute exists that appellant ’ s prosecution on the summary

traffic offense resulted in a conviction, that the prosecution on the

misdemeanors and felonies would be based on the same criminal conduct or

arose from the same criminal episode, and tha t the Commonwealth knew of

the misdemeanor and felony char ges before the summary trial. Additionally,

in light of our supreme court ’ s recent decision in Perfetto
, supra , appellant

satisfies the fourth Reid test prong because the misdemeanor and felony

cha rges arose in the same judicial district and at the same time as the traffic

offense of which appellant has already be en convicted and, consequently, a

straightforward application of 18 Pa.C.S.A. 110(1)(ii) precludes the

Commonwealth from prosecuting appel lant on the misdemeanor and felony

charges.

Order reversed . Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/5/19