J-S93036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BERNANDO HERNANDEZ,
Appellant No. 3143 EDA 2015
Appeal from the Order October 14, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: MC-51-CR-0047176-2012
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED SEPTEMBER 28, 2017
In this interlocutory appeal, Appellant, Bernando Hernandez, appeals
from the order entered in the Court of Common Pleas of Philadelphia County
denying his petition for a writ of certiorari, thus denying his motion to
dismiss a misdemeanor charge of driving under the influence (DUI) in
Philadelphia Municipal Court.1 Appellant maintains that pursuant to 18
Pa.C.S.A. § 110(1)(ii), (the compulsory joinder rule), prosecution on the DUI
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
In the notice of appeal, Appellant purports to appeal from the denial of the
motion to dismiss in Municipal Court. As the docket confirms, and Appellant
acknowledges in his brief, (see Appellant’s Brief, at 6), he actually appeals
from the denial of his petition for a writ of certiorari in Common Pleas Court.
We have amended the caption accordingly.
J-S93036-16
charge is barred by his previous conviction (in absentia), of two related
Vehicle Code summary offenses.2 We affirm.
Philadelphia police arrested Appellant on November 18, 2012, after
they observed him driving in the middle of two lanes and hitting a curb as he
pulled into a parking lot. The officers arrested Appellant and the
Commonwealth charged him with DUI, 75 Pa.C.S.A. § 3802(a)(1), careless
driving, 75 Pa.C.S.A. § 3714(a), and drivers required to be licensed, 75
Pa.C.S.A. § 1501. There is no dispute that after he failed to appear,
Appellant was convicted in absentia of the two summary offenses, on
January 23, 2013.
On September 17, 2015, at the preliminary hearing in Municipal Court,
Appellant moved to dismiss the DUI charge as barred by section 110,
because of the previous prosecutions. The court denied the motion.
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2
In pertinent part, section 110 bars prosecution 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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Appellant filed a petition for a writ of certiorari in Common Pleas Court. The
court denied it. This interlocutory appeal followed.3
Appellant raises one question for our review:
Did not the [trial] court err in denying [A]ppellant’s motion
to dismiss pursuant to 18 Pa. C.S. § 110(a)(1)(ii) where
[A]ppellant had previously been convicted of offenses which
arose from the same criminal episode in the same judicial district
as the offense in the instant case?
(Appellant’s Brief, at 3).
Appellant argues that the DUI charge arises out of the same criminal
episode as his previous conviction for the two summary offenses. He raises
a myriad of inter-related claims, including citation to legislative history and a
broad appeal to assumed public policy. Chiefly, he maintains that
prosecution is barred by the plain meaning of section 110, under the rule of
lenity. (See id. at 8-9). We disagree.
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. 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. Since the constitutional and statutory claims asserted
here are both purely matters of law, our scope of review is
plenary.
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3
Appellant filed a statement of errors as directed by the trial court. See
Pa.R.A.P. 1925(b). The trial court filed an opinion on May 10, 2016. See
Pa.R.A.P. 1925(a).
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Commonwealth v. Barber, 940 A.2d 369, 376 (Pa. Super. 2007), appeal
denied, 960 A.2d 835 (Pa. 2008) (citations and internal quotation marks
omitted). Similarly, “[a]s the issue before our Court raises a question of
law, our standard of review is de novo, and our scope of review is plenary.”
Commonwealth v. Fithian, 961 A.2d 66, 71 (Pa. 2008) (citation omitted).
An en banc panel of this Court has recently published an opinion, on
similar facts, which decided virtually identical issues to those raised by
Appellant here. See Commonwealth v. Perfetto, --- A.3d ----, 2017 Pa.
Super. 281 (Pa. Super. filed August 30, 2017) (en banc) (concluding that
prior disposition of summary traffic offense in traffic court does not bar later
prosecution of other criminal charges which arose in same judicial district
and at same time as summary traffic offense). This precedential opinion
controls our disposition here.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2017
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