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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NASIR KELLY,
Appellant No. 3081 EDA 2015
Appeal from the Order September 11, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0009589-2010
BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 15, 2017
Appellant, Nasir Kelly, filed this interlocutory appeal challenging the
September 11, 2015 order entered in the Court of Common Pleas of
Philadelphia County that denied his motion to dismiss pursuant to the
compulsory joinder statute found at 18 Pa.C.S.A. § 110(1)(ii).1 For the
reasons that follow, we affirm.
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1
We may exercise jurisdiction over this appeal:
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
(Footnote Continued Next Page)
* Former Justice specially assigned to the Superior Court.
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The trial court set forth the relevant factual and procedural history in
this case as follows.
On March 7, 2010, Philadelphia police officers found [Appellant]
unconscious behind the wheel of his car. He was arrested and
subsequently charged with [d]riving [u]nder the [i]nfluence
(“DUI”)[,] pursuant to 75 Pa.C.S.[A.] § 3802, and issued a traffic
citation for [c]areless [d]riving pursuant to 75 Pa.C.S.[A.]
§ 3714. On May 11, 2010, Appellant was found guilty in
absentia of [c]areless [d]riving in the [Philadelphia Municipal
Court - Traffic Division (traffic court)]; the DUI charge was not
adjudicated on that date. On July 1, 2015, Appellant moved to
dismiss the DUI charge in [traffic court] before the Honorable
Henry Lewandowski III, arguing that the Commonwealth was
barred from prosecuting him under the compulsory joinder
provisions of 18 Pa.C.S. § 110[(1)](ii) because he was previously
prosecuted for and convicted of the traffic violation. Judge
Lewandowski denied Appellant’s motion. Appellant then
petitioned for an interlocutory appeal to the Court of Common
Pleas. On September 11, 2015, th[e trial c]ourt heard argument
and denied Appellant’s appeal. This appeal followed[.2]
Trial Court Opinion, 3/10/16, at 1-2.
_______________________
(Footnote Continued)
immediate appeal. Commonwealth v. Bracalielly, 658 A.2d
755 (Pa. 1995); Commonwealth v. Schmidt, 919 A.2d 241
(Pa. Super. 2007).
Commonwealth v. Barber, 940 A.2d 369, 376 (Pa. Super. 2007), appeal
denied, 960 A.2d 835 (Pa. 2008) (parallel citations omitted). Since this
appeal presents a question of law, our standard of review is de novo and our
scope of review is plenary. Commonwealth v. Hockenbury, 701 A.2d
1334, 1336 n.3 (Pa. 1997).
2
Appellant filed a timely notice of appeal on October 8, 2015. On February
10, 2016, the trial court, pursuant to Pa.R.A.P. 1925(b), ordered Appellant
to file a concise statement of errors complained of on appeal. Appellant
timely complied by filing his concise statement on March 1, 2016. The trial
court issued its opinion on March 10, 2016.
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Appellant’s contention on appeal is that, under the compulsory joinder
statute found at 18 Pa.C.S.A. § 110(1)(ii),3 his conviction for careless driving
before the traffic court precludes subsequent prosecution of his DUI charges
before the Court of Common Pleas. We disagree.
Recently, an en banc panel of this Court confronted similar facts and
concluded that a prior summary conviction before the Philadelphia Municipal
Court Traffic Division did not bar subsequent prosecution of more serious
offenses under the compulsory joinder rule. In Commonwealth v.
Perfetto, 2017 PA Super 281 (Pa. Super. 2017) (en banc), we said: “[I]n
the context of compulsory joinder, where a defendant is charged with a
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3
In relevant part, § 110 provides as follows:
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:
***
(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.A. § 110(1)(ii).
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summary traffic violation and a misdemeanor, the [] summary offense may
be disposed of in a prior proceeding in the [traffic court], which has
jurisdiction exclusive of the Court of Common Pleas, and a separate
proceeding may be held for the remaining offenses.” Id. at 18-19. We
explained in Perfetto that “in the circumstances just described, [42
Pa.C.S.A. § 1302(a.1)(1)(i)] carves out an exception to compulsory joinder
and directs that the summary traffic offense is within the exclusive
jurisdiction of the traffic court. A prior disposition of a summary traffic
offense in a traffic court does not bar the later prosecution of other criminal
charges which arose in the same judicial district and at the same time as the
summary traffic offense.” Id. at 20. Perfetto thus concluded that, “in
those judicial districts [such as Philadelphia County,] which have a separate
traffic court[,] the summary traffic offenses may reach disposition in a
single, prior proceeding without precluding subsequent prosecution of higher
offenses.” Id.
In light of our recent holding in Perfetto, there is no merit to
Appellant’s contention in this interlocutory appeal. Accordingly, we affirm
the order entered in the trial court and remand this matter for further
proceedings.
Order affirmed. Case remanded for further proceedings. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2017
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