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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EUGENE LAMONT DAVIS
Appellant No. 1440 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-0009685-2014
BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J., OTT, J.,
STABILE, J., DUBOW, J., MOULTON, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED DECEMBER 12, 2017
Appellant, Eugene Lamont Davis, appeals from the order entered April
13, 2015, denying his motion to dismiss, which asserted a violation of
Pennsylvania’s compulsory joinder rule. See 18 Pa.C.S. § 110. After careful
review, we remand with instructions.
We derive the following statement of facts and procedural background
of this case from the trial court’s opinion and the record.
[In March 2014], Philadelphia[1] police officers [], in a
marked patrol vehicle, observed [Appellant] driving a vehicle with
tinted windows at a high rate of speed and disregarding a stop
sign. The officers attempted to stop [Appellant’s] vehicle by
operating their lights and sirens. [Appellant] allegedly failed to
pull over for several blocks. During the pursuit, [Appellant]
allegedly sped through two steady red lights and two additional
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1 Philadelphia is the First Judicial District of Pennsylvania. 42 Pa.C.S. § 901(a).
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stop signs, causing another vehicle to swerve out of the way.
[Appellant] was arrested and was charged with driving under the
influence [(“DUI”)] (75 Pa.C.S. § 3802) fleeing and eluding police
(18 Pa.C.S. § 3733), and recklessly endangering another person
[(“REAP”)] (18 Pa.C.S. § 2705). Appellant was also issued traffic
citations under the [] Vehicle Code.2
[In May 2014], [Appellant] was found guilty in absentia on
all four traffic offenses [] [in] the [Philadelphia] Municipal Court -
Traffic Division. The DUI charge was listed in the [General]
Division of the Municipal Court for disposition. A preliminary
hearing was held[], and [Appellant] was bound over for trial [in
the Court of Common Pleas] on all charges. [] [In February 2015,
Appellant argued a motion to dismiss the remaining charges
before the court, asserting that subsection (1)(ii) of 18 Pa.C.S. §
110, known as the compulsory joinder rule,[3] barred his
subsequent prosecution. See Notes of Testimony (N.T.),
2/19/2015, at 4. Appellant argued that dismissal was appropriate
because the multiple charges filed against him arose from the
same criminal episode, occurred within the same judicial district,
and the Commonwealth was aware of the charges when it
prosecuted him for the summary offenses. Id. at 4-11.]
Trial Court Opinion, 8/19/2015, at 1-2 (unnecessary capitalization and some
footnotes omitted). Following submission of briefs and a hearing, the
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2 [Appellant] received [] citations for driving without a license [], reckless
driving [], disregarding a red signal [], and illegal sunscreen []. [75 Pa.C.S.
§§ 1501(a), 3736(a), 311(a)(3)(i), and 4524(e)(1), respectively.]
3 This Court addressed the compulsory joinder rule in our recent decision,
Commonwealth v. Perfetto, 169 A.3d 1114 (Pa. Super. 2017) (en banc).
The Perfetto Court recognized, “[s]ection 110 is a codification of the rule
announced by our Supreme Court in Commonwealth v. Campana, 304 A.2d
432 (Pa. 1973), vacated and remanded, 94 S. Ct. 73 (1973), reinstated, 314
A.2d 854 (Pa. 1974), cert. denied, 94 S. Ct. 3172 (1974). In Campana, our
Supreme Court held that the Double Jeopardy Clause requires a prosecutor to
bring, in a single proceeding, all known charges against a defendant arising
from a single criminal episode.” Perfetto, 169 A.3d at 1117 (most internal
citations and quotations omitted).
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Honorable Vincent N. Melchiorre denied Appellant’s motion to dismiss in April
2015. However, no findings of fact or findings as to the frivolousness of the
motion were entered on the record. Notes of Testimony (N.T.), 4/13/2015 at
3-8.
Appellant timely filed a notice of appeal. No 1925(b) statement was
ordered. Nevertheless, in August 2015, the trial court filed an opinion
explaining its decision. In June 2016, this Court issued a memorandum
opinion affirming the trial court. Appellant petitioned this Court for en banc
reconsideration, which was granted in August 2016.
Appellant raises the following claim for our review:
1. Did not the lower court err in denying [A]ppellant’s motion to
dismiss pursuant to 18 Pa.C.S. § 110 in that: (i) [Appellant]
was found guilty in Philadelphia Municipal Court’s Traffic
Division on four traffic citations; (ii) the Traffic Division
prosecutions were based upon the same criminal conduct
and/or [a]rose from the same criminal episode as the instant
criminal charges; (iii) the Commonwealth was aware of the
instant charges before the commencement of the trial on the
former charges; and, (iv) these instant charges occurred within
the same judicial district as the former prosecutions in the
Philadelphia Municipal Court’s Traffic Division?
Substituted Brief for Appellant, at 3.
As an initial matter, we must determine whether this Court has
jurisdiction over the instant appeal. Commonwealth v. Taylor, 120 A.3d
1017, 1021 (Pa. Super. 2015) (noting that issues of jurisdiction may be raised
sua sponte).
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Pennsylvania Rule of Criminal Procedure 587(B) governs motions to
dismiss on double jeopardy grounds. Pa.R.Crim.P. 587(B). An order denying
such a motion may be appealable as a collateral order.4 An immediate appeal
from the denial of a double jeopardy claim is allowable under the collateral
order doctrine where the motion is found not to be frivolous. See
Commonwealth v. Brady, 508 A.2d 286, 289-91 (1986) (holding that
absent a finding of frivolousness, an appeal may be taken from the denial of
a motion to dismiss). In our recent decision, Commonwealth v. Diggs, ---
A.3d --- (Pa. Super. 2017), we held that Pa.R.Crim.P. 587(B) applies to
motions to dismiss based on compulsory joinder “[a]s Section 110 embodies
the same basic purposes as those underlying the double jeopardy clauses,
[and] the interlocutory appealability of double jeopardy claims has been
applied to claims based on Section 110.” Diggs, --- A.3d ---, *5 (citing
Commonwealth v. Bracalielly, 658 A.2d 755, 759-60 (Pa. 1995)); see also
Pa.R.A.P. 313(b). Accordingly, appellate jurisdiction exists only where a court
determines that a motion to dismiss on compulsory joinder grounds is not
frivolous and thereby qualifies as a collateral order. Diggs, --- A.3d ---, *5-
6; Pa.R.Crim.P. 587(B).
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4 “A collateral order is an order separable from and collateral to the main cause
of action where the right involved is too important to be denied review and
the question presented is such that if review is postponed until final judgment
in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b).
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Here, our review of the transcript and record reveals that the trial court
failed to comply with Rule 587(B), as it denied Appellant's motion to dismiss
based on compulsory joinder without entering on the record a statement of
findings of fact or a specific determination regarding whether Appellant’s
motion was frivolous. N.T., 4/13/2015 at 3-8; see Pa.R.Crim.P. 587(B)(3)-
(4). Accordingly, this Court may not exercise jurisdiction over this appeal. In
light of Diggs, we are constrained to remand this matter to the Court of
Common Pleas for additional findings and with instructions to comply with Rule
587(B).
Case remanded for proceedings consistent with this memorandum.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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