J-A15034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GARY GARNETT JORDAN

Appellant No. 1392 EDA 2015

Appeal from the Order April 13, 2015

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014422-2014

BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED JULY 18, 2016

Appellant Gary Garnett Jordan (“Appellant”) appeals from the order 

entered April 13, 2015 in the Philadelphia County Court of Common Pleas 

denying his Motion to Dismiss with Prejudice Pursuant to 18 Pa.C.S. § 110 

(“Motion to Dismiss”). After careful review, we affirm.

The pertinent facts and procedural posture of this matter are as 

follows. On November 28, 2013, police arrested Appellant and charged him 

with driving under the influence (“DUI”),1a misdemeanor, and careless 

driving,2a summary offense. On January 30, 2014, to avoid points on his 

license, Appellant pleaded guilty in Municipal Court to disregarding a traffic 

____________________________________________

1 75 Pa.C.S. § 3802.

2 75 Pa.C.S. § 3714.
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device.3 The DUI charge was listed in the Municipal Court Criminal Division, 

which conducted a trial on October 1, 2014. The Municipal Court found 

Appellant guilty of DUI, and Appellant filed a timely demand for a trial de 

novo in the Court of Common Pleas.

Prior to the trial de novo, Appellant filed his Motion to Dismiss, which 

the trial court denied on April 13, 2015. Appellant filed a timely notice of 

appeal on May 7, 2015.4 The trial court filed its Pa.R.A.P. 1925(a) opinion 

on August 19, 2015.5

____________________________________________

3 75 Pa.C.S. § 3111.

4 This Court has explained that a claim regarding compulsory joinder 

pursuant to 18 Pa.C.S. § 110, although interlocutory, is immediately 

appealable:

“It 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.” Commonwealth v. Calloway, [] 

675 A.2d 743, 745 n. 1 ([Pa.Super.]1996) (citing 

Commonwealth v. Savage, [] 566 A.2d 272, 275 

([Pa.Super.]1989)). 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. Bracalielly, [] 658 A.2d 755 ([Pa.]1995), 

and Commonwealth v. Schmidt, 919 A.2d 241 

(Pa.Super.2007).

Commonwealth v. Barber, 940 A.2d 369, 376 (Pa.Super.2007).

5 The trial court did not order, and Appellant did not file, a statement of 

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Appellant raises the following claim for review:

Did not the lower court err in denying [A]ppellant’s motion to 

dismiss pursuant to 18 Pa.C.S. § 110 where [A]ppellant had 

previously been convicted of an offense which arose from the 

same criminal episode as the offense in the instant case?

Appellant’s Brief, p. 3.

Appellant claims the trial court erred by denying his Motion to Dismiss. 

See Appellant’s Brief, pp. 6-15. Specifically, he claims 18 Pa.C.S. § 110 

requires joinder of all charges involved in the same transaction, and that the 

Commonwealth’s failure to prosecute his misdemeanor DUI at the same time 

and in the same court where he pleaded guilty to a summary traffic offense 

requires dismissal of the DUI charge. Id. He is incorrect.

A claim regarding compulsory joinder pursuant to 18 Pa.C.S. § 110 

raises a question of law which we review under a de novo standard of review 

and a plenary scope of review. Commonwealth v. Fithian, 961 A.2d 66, 

71 n.4 (Pa.2008); see also Commonwealth v. Barber, 940 A.2d 369, 376 

(Pa.Super.2007).

The Crimes Code provides, in relevant part:

§ 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 (relating to 

when prosecution barred by former prosecution for the 

same offense) and the subsequent prosecution is for:
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* * * * *

(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. As our Supreme Court has explained:

Section 110(1)(ii) . . . contains four requirements which, if met, 

preclude a subsequent prosecution due to a former prosecution 

for a different offense:

(1) the former prosecution must have resulted in an 

acquittal or conviction;

(2) the current prosecution is based upon the same 

criminal conduct or arose from the same criminal episode 

as the former prosecution;

(3) the prosecutor was aware of the instant charges before 

the commencement of the trial on the former charges; and

(4) the current offense occurred within the same judicial 

district as the former prosecution.

Commonwealth v. Fithian, 961 A.2d 66, 72 (Pa.2008) (internal citation 

omitted). “The policies served by the statute are two-fold: to 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.” Commonwealth v. 

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

“[T]he Supreme Court of Pennsylvania has [] stated unequivocally that 

the compulsory joinder requirement of 18 Pa.C.S.[] § 110 is inapplicable 

where . . . the offense first prosecuted was a summary one.” 
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Commonwealth v. Barber, 940 A.2d 369, 379 (Pa.Super.2007) (quoting 

Commonwealth v. Caufman, 662 A.2d 1050, 1051 (Pa.1995)); see also

Commonwealth v. Taylor, 522 A.2d 37 (Pa.1987) (“[The Supreme 

Court’s] interpretation of section 110(1)(ii) . . . allows a summary offense to 

be disposed of prior to the prosecution of a misdemeanor.”). This Court has 

noted that “the Supreme Court of Pennsylvania [has] announced that the 

compulsory joinder statute requires all summary offenses based on the same 

conduct to be prosecuted in a single proceeding, not that all offenses, both 

summary and nonsummary, must be prosecuted in a single proceeding.” 

Barber, 940 A.2d at 379 (citing Commonwealth v. Failor, 770 A.2d 310, 

313 (Pa.2001)) (emphasis in original); Commonwealth v. Geyer, 687 A.2d 

815, 817 (Pa.1996) (discussing Commonwealth v. Breitegan, 456 A.2d 

1340, 1341 (Pa.1983) for the proposition that Section 110 does not bar the 

prosecution of a misdemeanor after a defendant enters a guilty plea to 

summary traffic citations arising from the same criminal episode). 

As the Supreme Court has explained:

The disposition of a summary offense in a traffic matter prior to 

the trial of a misdemeanor or felony does not present the type of 

governmental harassment of a defendant that would offend 

double jeopardy concerns. Additionally, judicial economy is not 

served by requiring our Courts of Common Pleas to dispose of 

these matters which are regularly entrusted to the district 

justices for disposition. It is fundamental that a rule of law 

should not be applied where its application fails to serve the 

purposes for which it was designed.

Commonwealth v. Beatty, 455 A.2d 1194, 1198 (Pa.1983) (footnote and 

internal citation omitted).
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Here, Appellant was not tried separately for multiple summary 

offenses stemming from the same criminal episode. Instead, Appellant 

pleaded guilty to a summary traffic violation and then was prosecuted for a 

misdemeanor DUI. Section 110 does not bar such prosecution, and 

Appellant’s argument to the contrary fails.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/2016