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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 EDA 2018

:

 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 05, 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 pursuant to the 

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

 

1 With 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 similarly 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).
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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 forth 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 instrument 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 incident underlying 

the above criminal charges. Those tickets were 

disposed of by [a]ppellant when he appeared before 

this Court.

Based on the disposition of 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 reflects 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.)
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On November 20, 2017, this Court denied 

[a]ppellant’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 PROSECUTION 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 BASIS 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). The 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 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.
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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 that the Commonwealth knew of 

the misdemeanor and felony charges 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 

charges arose in the same judicial district and at the same time as the traffic 

offense of which appellant has already been convicted and, consequently, a 

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

Commonwealth from prosecuting appellant 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