J-A06028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
THOMAS TINSLEY,
Appellant No. 431 EDA 2016
Appeal from the Order January 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011849-2013
BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 23, 2018
Appellant, Thomas Tinsley, appeals from the order entered January 21,
2016, denying his motion to dismiss on double jeopardy grounds pursuant to
18 Pa.C.S. § 110. After careful review, we quash.
The trial court summarized the factual and procedural history of this
case as follows:
According to the arresting officer, on September 3, 2013, he saw
[Appellant] run a stop sign and pulled him over, at which time he
“recovered” a loaded firearm. He issued [Appellant] a citation for
running a stop sign and arrested him for possession of the gun.
[Appellant] was charged with Carrying a Firearm While Prohibited,
Without a License, and in Public[,] and Possession of an
Instrument of Crime.2 Due to the fact that, in his testimony, the
officer did not specify, and his records did not indicate, exactly
how or from where the gun was recovered, nor that it was used
in a criminal fashion, the latter two charges were dismissed for
lack of evidence. At a hearing on [Appellant’s] motion to
suppress, the same officer testified about the incident in much
greater detail, in particular that he found the weapon in the glove
J-A06028-17
box of [Appellant’s] vehicle. On November 5, 2013, at a hearing
in Philadelphia Traffic Court, [Appellant] pled not guilty but was
convicted of disregarding a stop sign. [The motion to suppress]
was denied on April 23, 2014, and on November 24, 2015, he filed
[a] motion to dismiss[,] claiming that his prosecution for the
weapons offenses was barred. At the end of the hearing on the
motion, the court scheduled the case “must be tried” for May 23,
2016, this appeal was filed the next day, and it does not appear
that [Appellant] has requested a stay of proceedings.
275 Pa.C.S. § 3323(b); 18 Pa.C.S. § 6105(a)(1),
6106(a)(1), 6108 & 907(a).
Trial Court Opinion, 4/14/16, at 1-2 (two footnotes omitted).
This case returns to us after we remanded to have the trial court comply
with Pa.R.Crim.P. 587(B), to clarify whether this Court had appellate
jurisdiction. Briefly, consistent with Commonwealth v. Taylor, 120 A.3d
1017 (Pa. Super. 2015), we remanded because we were unable to determine,
based on the trial court’s noncompliance with Rule 587(B), whether we could
exercise jurisdiction under Pa.R.A.P. 313 (relating to collateral orders) over
Appellant’s appeal from an order of the trial court denying his pretrial motion
to dismiss on double jeopardy grounds. Commonwealth v. Tinsley, ___
A.3d ___, 431 EDA 2016 (Pa. Super. filed July 18, 2017) (unpublished
memorandum). As we explained in Taylor, an order denying a double
jeopardy motion is appealable as a collateral order as long as the motion is
not found to be frivolous by the lower court. Taylor, 120 A.3d at 1021-1022.
The requirement that a lower court renders a specific finding on frivolousness
is expressly mandated under Rule 587(B). Id. at 1022.
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J-A06028-17
Following our remand, the trial court held a hearing on October 10,
2017, in compliance with Pa.R.Crim.P. 587(B). At the conclusion of the
hearing, the trial court found Appellant’s motion to dismiss to be frivolous and
denied the motion on the record. N.T., 10/10/17, at 7. The trial court entered
an order on October 11, 2017, denying the motion to dismiss. Given the trial
court’s finding of frivolousness, we now conclude that the trial court’s order
denying the double jeopardy motion does not qualify as a collateral order
under Rule 313. Taylor, 120 A.3d at 1021. Accordingly, we must quash this
appeal for lack of jurisdiction.
Additionally, we note that on October 13, 2017, Appellant filed a petition
for review of the trial court’s determination of frivolousness pursuant to
Pa.R.Crim.P. 587(B)(5) and Pa.R.A.P. 1573. Pa.R.Crim.P. 587(B)(5) provides
as follows:
If the judge makes a finding that the motion is frivolous, the judge
shall advise the defendant on the record that a defendant has a
right to file a petition for review of that determination pursuant to
Rule of Appellate Procedure 1573 within 30 days of the order
denying the motion.
Pa.R.Crim.P. 587(B)(5). Pa.R.A.P. 1573(a) states:
(a) General rule. Any party seeking review of a frivolousness
determination by a court of common pleas under Pennsylvania
Rule of Criminal Procedure 587 shall file a petition for review in
the appellate court having jurisdiction over the matter. Review of
a frivolousness determination under Pennsylvania Rule of Criminal
Procedure 587 shall be governed by this chapter and ancillary
provisions of these rules, except as otherwise prescribed by this
rule. The time for filing is provided for in Pa.R.A.P. 1512(a)(1).
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J-A06028-17
Pa.R.A.P. 1573(a). We deny Appellant’s petition for review on the basis of the
trial court’s supplemental Pa.R.A.P. 1925(a) opinion filed November 29, 2017,
and this Court’s holding in Commonwealth v. Perfetto, 169 A.3d 1114 (Pa.
Super. 2017) (en banc).1
Appeal quashed. Petition for review denied.2
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/18
____________________________________________
1 The Perfetto Court explained:
[I]n the context of compulsory joinder, where a defendant is
charged with a summary traffic violation and a misdemeanor, the
Title 75 summary offense must be disposed of in a proceeding in
the Philadelphia Municipal Court Traffic Division, which has
jurisdiction exclusive of the Court of Common Pleas, and a
separate proceeding must be held for the remaining, higher
offenses.
Perfetto, 169 A.3d at 1124.
2In the event of further proceedings, the parties are directed to attach a copy
of the trial court’s opinion filed November 29, 2017.
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Circulated 01/30/2018 11:41 AM
FILED
IN THE COURT OF COMMON PLEAS NOV! 9 2017
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Office of Judicial Recon
TRIAL DIVISION - CRIMINAL SECTION Appeals/Post Trial
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0011849-2013
v. ..
SUPERIOR COURT
THOMAS TINSLEY NO. 431 EDA 2016
--"I
SUPPLEMENTAL Pa.R.A.P. 1925(a) OPINION ��c) ( I
MAZZOLA, WILLIAM, J. NOVEMBER
The trial court submits this supplement to its Pa.R.A.P. 1925(a) Opinion of April 14,
2016, in compliance with this Court's order remanding the matter and directing the court to
comply with the requirements of Pa.R'Crim.P. 587(B) which rule governs the steps a court is
required to take where, as here, a defendant wishes to pursue an interlocutory appeal from a trial
court's order denying a pretrial motion to dismiss criminal charges on double jeopardy grounds.
The rule provides:
(1) A motion to dismiss on double jeopardy grounds shall state specifically and
with particularity the basis for the claim of double jeopardy and the facts that
support the claim.
(2) A hearing on the motion shall be scheduled in accordance with Rule 577
(Procedures Following Filing of Motion). The hearing shall be conducted on the
record in open court.
(3) At the conclusion of the hearing, the judge shall enter on the record a
statement of findings of fact and conclusions of law and shall issue an order
granting or denying the motion.
( 4) In a case in which the judge denies the motion, the findings of fact shall
include a specific finding as to frivolousness.
(5) If the judge makes a finding that the motion is frivolous, the judge shall advise
the defendant on the record that a defendant has a right to file a petition for review
of that determination pursuant to Rule ofAppellate Procedure 1573 within 30
days of the order denying the motion.
(6) If the judge denies the motion but does not find it frivolous, the judge shall
advise the defendant on the record that the denial is immediately appealable as a
collateral order.
Id. The court had conducted a hearing on January 20, 2016, pursuant to subsections (1) and (2),
1
. .
but neglected to comply with subsections (3), (4), (5) and/or (6). It, therefore, reheard the matter
on October 10, 2017) at which the defendant's presence was waived by agreement of the parties
and the court presented the factual and legal bases for the claims as presented in the defendant's
motion, as it had in its previous opinion, as its findings of fact and conclusions of law, allowing
defense counsel, of course, to submit any additional matters. One item that the Commonwealth
brought to the court's attention was a recent decision of this Court directly on point.
THE COURT: ...
The matter at issue is this Court's prior ruling on a defense motion to dismiss
for double jeopardy under classical constitutional double jeopardy and Rules 109
and 110 of the Rules of Criminal Procedure. That motion was litigated, and it was
denied by this Court at a hearing on January 20, 2016, subsequently appealed,
resulting in the remand opinion that I've stated.
In compliance with that, the Court is required to put findings of facts and
conclusions of law on the record. And the Court finds as follows, factually in this
matter:
That on September 3rd of2013 the defendant, while driving an automobile in
the city and county of Philadelphia; ran a stop sign.
Number two) as a consequence he was observed running a stop sign and
stopped by the police.
Number three, the defendant was issued a citation under the Motor Vehicle
Code for the observed incident, a summary offense of running a stop sign.
Fact number four, as a consequence of that stop, a search of the defendant's
vehicle was conducted by the police and it revealed a loaded weapon in the
automobile's glove box. The defendant was,therefore, in addition to the citation,
arrested for weapons offenses based upon the Crimes Code and the Uniform
Firearms Act. ·
On September 19, 2013, the defendant attended a preliminary hearing on the
weapons offenses and while not all charges were held for court, some of the
charges were held for court, specifically possession of a firearm by person
prohibited and firearms not to be carried without a license.
On November 5, 2013 the defendant was adjudicated guilty in the
Philadelphia Traffic Court for the Motor Vehicle Code violation which occurred
on September 3, 2013 as aforesaid. The traffic violation for the running of the
stop sign and the weapons offenses took place during the same criminal episode.
The Commonwealth at all times relevant was aware of the charges in both the
Philadelphia Traffic Court case and the Philadelphia Common Pleas Court case,
the Criminal Division.
On November 24, 2015 the aforesaid motion to dismiss under Rule 110 was
filed claiming that the prosecution for the weapons offenses was barred by way of
that statute.
As I indicated on January 20, 2016, the motion to dismiss filed by the defense
2
was denied. I reached the following legal conclusions:
That the defendant was charged with a summary violation of the Motor
Vehicle Code and found guilty while criminal charges were pending in this court.
The current bill of information seeks prosecution for commission of a crime, not
for violation of the Vehicle Code. Neither the double jeopardy clause of the
United States Constitution or the Pennsylvania Constitution nor the relevant
sections of the Pennsylvania Consolidated Statutes, Section 109, where a
prosecution is barred by a former prosecution, neither of those barred the
subsequent proceedings if they are grounded in violations of the Uniform
Firearms Act where the defendant was previously placed in jeopardy only on a
Motor Vehicle Code offense.
The two events in which the defendant was accused of engaging are
completely different activities that just happened to occur at the same time and
involved the same instrumentality, one of them occurring instantaneously.jo wit,
the stop sign violation, and the other, i.e., the weapon, was an ongoing offense.
There is no logical relationship between the crimes of running a stop sign and
violation of the Uniform Firearms Act. Those crimes are defined by separate
statutes and are. intended to prevent different evils with no similarity of issues
involved in proving these distinct offenses.
While we do not know when or how the defendant came into possession of the
weapon, the Commonwealth is not required to prove either nor how it got into the
car. The only legal connection between the summary offense under the Motor
Vehicle Code and the crimes in front of this Court were that they were not
authorized. The only factual connection was that the car was used both to run the
stop sign and to carry the weapon; and while the use of the vehicle is an essential
element of the former, it is merely peripheral to the latter.
The Court finds that under the relevant provisions and amendments as set out
in the Superior Court's most recent opinion in Commonwealth v. Marc Perfetto,
an opinion dated August 30, 2017, found in the Superior Court docket at number
2479 EDA 2015 that with the peculiar circumstances in Philadelphia County, the
existence of the Municipal Court, Traffic Court Division, and prosecution in this
Court for the offenses as described in these conclusions of law does not violate
the relevant statutes.
Therefore, the defendant's claim is still denied, the motion to dismiss is still
denied, and the Court finds that it's completely lacking in merit and is frivolous,
and further appeal of this matter would be frivolous.
Notes of Testimony, Hearing Volume 1, October 10, 2017, pp. 2-7. The court then advised the
.
defendant on the record that he had the right to file a petition for review of that determination
pursuant to Pa.R.A.P 1573 within 30 days. Id. pp. 8-9. The case the.court mentioned came
down after this court conducted the January 2016 hearing and submitted its original Rule 1925(a)
opinion but before the rehearing, and it clearly applies.
3
'l
.r:
The Commonwealth of Pennsylvania appeals from the order entered July 13,
2015, granting Appellee Marc Perfetto's motion to dismiss, which asserted a
violation of Pennsylvania's compulsory joinder rule. See 18 Pa.CS.§ 1 JO. Subject
to certain jurisdictional exceptions, which will be explained herein, we hold that the
subsequent prosecution of an offense [driving under the influence] arising out of a
criminal episode that had triggered the former prosecution of a different [summary)
offense [of driving without lights when required] is barred where those multiple
offenses occur in the same judicial district. However, because ofjurisdictional
exceptions applicable to Philadelphia, the holding of the trial court is reversed.
Commonwealth v. Perfetto, 2017 PA Super 281, 169 A.3d 1114, 1116 (2017) (en bane,
Judge Dubow dissenting in which President Judge Bender and Judge Lazarus joined, filed
August 30, 2017). "Therefore, in the context of compulsory joinder, where a defendant is
charged with a summary traffic violation and a misdemeanor, the Title 75 summary offense must
be disposed of in a proceeding in the Philadelphia Municipal Court Traffic Division, which has
jurisdiction exclusive of the Court of Common Pleas, and a separate proceeding must be held for
the remaining, higher offenses." Id A.3d at 1124.1
Wherefore, for the reason's stated herein and in the court's previous opinion, and
Perfetto being Pennsylvania law at this time, the defendant's claim is patently both frivolous and
completely lacking in merit and the court's denial of his motion should be affirmed.
BY THE COURT:
I
Perfettc's Petition for Allowance of Appeal is pending at Allocatur Docket No. 455 EAL 2017, along with,
apparently, those offifteen other defendants'. As of this date, that docket lists as Related Cases/Same Jssue(s): 47 J, ·
472, 473, 477, 478, 482, 485, 499, 501, 507, 510, 516, 517, 520, 523 & 526 EAL 2017, and all of the defendant's as
the petitioners. The court has not examined all those cases, sensing that it's safe to assume that this Court rendered
decisions in them consistent with that in Perfetto. Other pending allocatur petitions that appear to have something to
do with§/ JO of which the court is presently aware are Commonwealth v: Rosas, PA Super. 1675 EDA 2015, Pa. I
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513 EAL 2017, and Commonwealth v. Atkinson, PA Super. 1562 EDA 2016, Pa. 499 EAL 2·011. · I
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IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA : CP-51-CR-0011849·2013
vs. SUPERIOR COURT
NO. 431 EDA 2016
Thomas Tinsley
PROOF OF SERVICE
I hereby certify that I am this day serving the forgoing Court Order upon the persons, and in the manner
indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114.
Counsel: Jonathan R. Altschuler, Esq.
1500 JFK Blvd. Suite i850
Philadelphia, PA 19102
Type of Service: ( ) Personal (X) First Class Mail Other, please specify:------
'
Philadelphia District Attorney: Hugh J. Burns
District Attorney's Office
Three South Penn Square
Philadelphia PA 19107-3499
Type of Service: ( ) Personal ( X) First Class Mail Other, please specify: _
Additional Counsel/Party: Natasha Lowe, Esq.
Supervisor, PCRA/Appeal Unity
#206 CJC
Philadelphia, PA 19107
Type of Service: (} Personal () First Class Mail Other, please specify: Inter-Office