J-E03007-16

2017 PA Super 281

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

v. :

:

MARC PERFETTO, :

:

Appellee : No. 2479 EDA 2015

Appeal from the Order July 13, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0013338-2014

BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE, 

DUBOW, MOULTON, and RANSOM, JJ.

DISSENTING OPINION BY DUBOW, J.: FILED AUGUST 30, 2017

This case involves the issue of the applicability of the compulsory 

joinder rule set forth in 18 Pa.C.S. § 110 ("Section 110") when the 

Commonwealth has charged a defendant with both summary and 

misdemeanor traffic offenses. I respectfully dissent and disagree with the 

Majority’s analysis because the legislation setting forth the jurisdiction of 

Municipal Court vests jurisdiction to hear both types of offenses in not only 

in Municipal Court as a whole, but also the General Division of Municipal 

Court. Therefore, since the Commonwealth could have prosecuted the 

Appellee for both types of charges in the General Division of Municipal Court, 

but instead attempted to prosecute him in the different divisions of Municipal 

Court, Rule 110 bars the Commonwealth from now prosecuting the 
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misdemeanor charges. I would affirm the trial court’s grant of the Motion to 

Dismiss.

Section 110 protects a defendant’s double jeopardy rights where the 

Commonwealth initially declines to prosecute the defendant for the present 

offense, electing to proceed on different charges stemming from the same 

criminal episode. Commonwealth v. Laird, 988 A.2d 618, 628 (Pa. 2010) 

(citations omitted). 

Section 110 serves two major policies of protecting defendants from 

governmental harassment and promoting judicial economy:

[T]o protect accused persons from governmental harassment of 

undergoing successive trials for offenses stemming from the 

same episode, and to promote judicial economy and finality by 

avoiding repetitious litigation. By requiring compulsory joinder 

of all charges arising from the same criminal episode, a 

defendant need only once run the gauntlet and confront the 

awesome resources of the state.

Commonwealth v. George, 38 A.3d 893, 896 (Pa. Super. 2012) (internal 

citations and quotation marks omitted).

We must strictly construe the compulsory joinder statute, which is a 

penal statute pursuant to 1 Pa.C.S. § 1928(b)(1). Commonwealth v. 

Fithian, 599 Pa. 180, 961 A2d 68, 74. Although we need not give the words 

of the compulsory joinder statute their narrowest meaning or entirely 

disregard legislative intent, “if an ambiguity exists in the verbiage of a penal 

statute, such language should be interpreted in the light most favorable to 

the accused.” Id. (citations omitted). “[W]here doubt exists concerning the 
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proper scope of a penal statute, it is the accused who should receive the 

benefit of such doubt.” Id. (citations and quotation omitted).

Section 110 provides that if the Commonwealth prosecutes a 

defendant on certain charges, the Commonwealth is barred from prosecuting 

the defendant again on charges stemming from the same criminal episode if 

the Commonwealth could have prosecuted the defendant on the other 

charges in the first prosecution: 

§ 110. When prosecution barred by former 

prosecution for different offense

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 . . . 

and the subsequent prosecution is for:

(i) any offense of which the defendant 

could have been convicted on the first 

prosecution; [or]

(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 a.C.S. § 110 (emphasis added).
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The issue in this case, therefore, deals with whether the 

former prosecution resulted in an acquittal or in a conviction and the 

subsequent prosecution is for “any offense of which the 

defendant could have been convicted on the first 

prosecution.” Section 110(a)(i). In other words, was there a 

jurisdictional bar that prevented the Commonwealth from 

prosecuting the defendant for all offenses in one proceeding.

More specifically and as applied to this case, the 

Commonwealth prosecuted the Appellee for a summary traffic 

offense in Traffic Division of Municipal Court and deferred 

prosecuting him for the misdemeanor charges. The issue in this 

case, therefore, is whether the court that convicted the defendant 

on the summary offenses had the jurisdictional authority to convict 

him of the misdemeanor offenses. As discussed in greater detail 

below, we conclude that because the Appellee was convicted in 

Municipal Court and Municipal Court had jurisdiction to adjudicate 

both summary and misdemeanor charges, Rule 110 barred the 

prosecution of the misdemeanor offenses.1

 

1 My analysis of the jurisdictional issue differs from the Majority in that the 

Majority concludes that under Rule 110, “jurisdiction is no longer an element 

of the compulsory joinder test,” but concludes is still “implicit to any 

compulsory joinder analysis.” I disagree. Rule 110(i) clearly imposes the 

jurisdictional requirement by providing that the compulsory joinder rule 

applies if the defendant “could have been convicted” in the first prosecution. 
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Before 2013, Philadelphia had two separate courts that dealt with 

summary and misdemeanor traffic offenses. Summary traffic offenses could 

only be heard in Traffic Court and misdemeanor traffic offenses could only 

be heard in Municipal Court. In particular, the legislature vested in Traffic 

Court “jurisdiction of all prosecutions for summary offenses arising 

under . . . Title 75.” 42 Pa.C.S.A 1302 (a)(i). Similarly, the legislature 

vested in Philadelphia Municipal Court jurisdiction to hear “criminal offenses 

by any person . . . for which no prison term may be imposed or which are 

punishable by imprisonment for a term of not more than five years, 

including indictable offenses under Title 75. 42 Pa. C.S.A. 1123(a)(2). 

Because the legislature vested Traffic Court with jurisdiction “of all 

prosecutions for summary offense arising under . . . Title 75,” the 

Commonwealth could only prosecute summary offenses in Traffic Court and 

misdemeanor traffic offenses in Municipal Court. Therefore, the 

Commonwealth did not violate Rule 110 by prosecuting both types of traffic 

offenses in different courts. See, e.g., Commonwealth v. Masterson, 418 

A.2d 664, 666 (Pa. Super. 1980).

In 2013, the legislature enacted legislation that abolished Traffic Court 

and transferred the jurisdiction of summary traffic offenses to Municipal 

 

In other words, if the court that adjudicated the defendant in the first 

prosecution “could have” adjudicated the charges that Commonwealth tries 

to prosecution in the second prosecution, Rule 110 bars the subsequent 

prosecution.
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Court. More specifically, the new legislation granted to Municipal Court the 

jurisdiction to hear “prosecutions for summary offenses arising under . . . 

Title 75.” 42 Pa.C.S.A. 1123(a)(9). As a result of this amendment, one single 

court, Municipal Court, had jurisdiction over both summary and 

misdemeanor traffic offenses. 

The legislation also created a new division of Municipal Court: the 

Traffic Division. 42 Pa.C.S.A. 1121. As a result, Municipal Court has two 

divisions: the General Division and the Traffic Division. The Traffic Division 

has jurisdiction over summary traffic offenses: 

The Traffic Division shall, at the direction of the President Judge of the 

Philadelphia Municipal Court, exercise jurisdiction under section 

1123(a)(9).

42 Pa.C.S.A. 1121(c). The legislation, however, vests in the General 

Division jurisdiction to hear, inter alia, both summary and misdemeanor 

traffic offenses: 

The General Division shall exercise full jurisdiction of the municipal 

court under section 1123(a)(relating to jurisdiction and venue).

42 Pa.C.S.A. 1121(b). Since section 1123(a) includes jurisdiction over 

misdemeanor and summary traffic offenses, the General Division has 

jurisdiction over both types of cases. See 42 Pa.C.S.A. 1123(a)(2) and 42 

Pa.C.S.A. 1123(a)(9).

Thus, the legislature created a statutory scheme in which the General 

Division would hear those cases in which the Commonwealth charged a 
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defendant with both summary and misdemeanor traffic offenses and the 

Traffic Division would hear those cases in which the Commonwealth only 

charged a defendant with a summary offense.

In this case, the Commonwealth charged the Appellee with both 

summary and misdemeanor traffic offenses and attempted to prosecute the 

charges separately. As discussed above, once the legislature abolished Traffic 

Court and transferred jurisdiction of summary traffic offenses to Municipal 

Court, one single court had jurisdiction to adjudicate both summary and 

misdemeanor traffic offenses. There is nothing in the legislation that limits 

Municipal Court’s authority to hear both types of cases. Thus, Rule 110 

mandates that the Commonwealth prosecute both types of offenses together 

in Municipal Court.

The Majority Opinion, when addressing the jurisdictional bar, interprets 

the legislation that abolished traffic court as vesting exclusive jurisdiction to 

hear summary offenses in Traffic Division. I disagree. There is no provision in 

the legislation that vests exclusive jurisdiction in the Traffic Division. In fact, 

the clear and unambiguous language of the legislation does the opposite. It 

vests in the General Division the jurisdictional authority to adjudicate both 

types of charges. In other words, the legislation devises a statutory scheme 

in which the Traffic Division adjudicates cases in which the Commonwealth is 

only prosecuting summary traffic offenses and the General Division when the 

Commonwealth is prosecuting summary and misdemeanor traffic offenses.
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The Majority Opinion in concluding that the Traffic Division has 

exclusive jurisdiction over summary traffic offenses also relies upon the 

authority of the Supreme Court “by general rule provide for the assignment 

and reassignment of classes of matters among several courts of this 

Commonwealth and the magisterial district judges as the needs of justice 

shall require . . .” 42 Pa.C.S.A. 503(a).2 The Majority Opinion argues that the 

Supreme Court, through the Pennsylvania Rules of Criminal Procedure, 

assigned the summary traffic offenses to the Traffic Division of Municipal 

Court. Pa.R.Crim.Pro. 1001(A). In particular, the Majority Opinion relies upon 

the definition of a “Municipal Court Case” which includes “any offense under 

the Vehicle Code other than a summary offense.” The comment to the rule 

provides that summary traffic offenses “are under the jurisdiction of the 

Municipal Court Traffic Division ...” Pa.R.Crim.P. 1001(D), cmt.

As discussed above, I respectfully disagree with the Majority’s 

interpretation of these provisions as vesting in the Traffic Division exclusive 

jurisdiction over summary traffic offenses. First, such an interpretation is 

contrary to the clear and unambiguous language of the statute that vests in 

the General Division the authority to adjudicate both summary and 

misdemeanor offenses. Since the legislature vested jurisdiction of summary 

offenses in both the General Division and Traffic Division, there is no 

 

2 We note that 503(b) also requires the Chief Justice of the Supreme Court 

to report such rules to the General Assembly for approval either by vote or 

failure to vote. 
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statutory basis to interpret this rule and comment as vesting exclusive 

jurisdiction in the Traffic Division.

Moreover, the better interpretation is that the comment addresses 

those cases in which the Commonwealth has only charged the defendant with 

a summary offense and the Traffic Division is the appropriate division to hear 

the summary traffic offense.

I also respectfully disagree with the Concurring Opinion and its 

reliance on Section 112(1). As an initial matter, the Concurring Opinion 

interprets Section 112(1) expansively and in such a way as to limit an 

accused rights set forth in the Section 110. It is well established that we 

should interpret ambiguities in statutes in the light most favorable to the 

accused. Commonwealth v. Fithian, supra at 74.

In particular, the Concurring Opinion argues that since the 

Commonwealth prosecuted the defendant in the Traffic Division of Municipal 

Court and the judges in the Traffic Division only have the authority to hear 

summary offenses, the Traffic Division lacked the jurisdiction to hear the 

misdemeanor and the exception to the compulsory joinder rule set forth in 

Section 112(1) applies.

Section 112(1) applies when “the former prosecution was before a 

court which lacked jurisdiction over the defendant or the offense.” (emphasis 

added). In this case, the legislature clearly granted to Municipal Court

jurisdiction over both summary and misdemeanor traffic offenses. 42 Pa.C.S. 
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1123(a). Thus, the prosecution of the summary offense in the Traffic Division 

was a prosecution before Municipal Court, which had jurisdiction to hear 

both types of offense, and Section 112(1) does not apply.

The Concurring Opinion further relies on the fact that the judges in the 

Traffic Division lacked the authority to hear misdemeanor offenses and 

concludes that this limited authority of the judges is a sufficient jurisdictional 

bar to permit separate prosecutions. Although the judges in the Traffic 

Division have limited authority, Section 112(1) applies only when the “court,” 

and not “division of a court,” lacked jurisdiction to hear the prior prosecution. 

As discussed throughout, Municipal Court always had jurisdiction to hear both 

types of cases.

The reason the Commonwealth prosecuted the summary offenses 

separately from the misdemeanor offense is not based on any jurisdictional 

bar. Rather, it is based on the administration of Municipal Court erroneously 

listing summary traffic offenses separately from misdemeanor traffic 

offenses. As a result of this administration decision, the defendant is deprived 

of his right in Section 110 to be prosecuted in one proceeding for multiple 

offenses arising from the same criminal episode. For this reason, I 

respectfully dissent.

In conclusion, I find that Section 110 applies to this case and would 

affirm Appellee’s Motion to Dismiss.

PJE Bender and Judge Lazarus join this dissenting opinion.