J-S75024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WARREN NICHOLS, :
:
Appellant : No. 1703 EDA 2018
Appeal from the PCRA Order May 24, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008876-2012
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 15, 2019
Appellant Warren Nichols appeals from the order dismissing his petition
filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,
without a hearing. Appellant asserts that the PCRA court erred in failing to
hold a hearing on his ineffective assistance of counsel (IAC) claim alleging that
pre-trial counsel1 was ineffective for failing to file a motion to dismiss based
upon the compulsory joinder rule in 18 Pa.C.S. § 110. We affirm.
The relevant factual background of this matter is as follows. On July 11,
2012, at approximately 12:00 a.m., Philadelphia Police Officer Eyleen Archie
stopped Appellant’s vehicle near the intersection of Diamond and Broad
Streets because Appellant was driving without his headlights. N.T. Trial,
4/9/14, at 12. As Officer Archie approached Appellant’s vehicle after stopping
____________________________________________
1Appellant had separate counsel for each of the pre-trial, trial, sentencing,
post-verdict/direct appeal, and PCRA phases of this matter.
J-S75024-18
Appellant, she observed Appellant reaching under his seat. Id. Officer Archie
instructed Appellant to stop moving, which he ignored. Id. at 13. Officer
Archie opened Appellant’s car door and instructed him to step out of the
vehicle. Id. After Appellant exited the vehicle, Officer Archie conducted a
protective sweep. Id. at 14. Officer Archie saw the butt of a black handgun
sticking out from underneath Appellant’s seat. Id. Officer Archie recovered
the gun and a baggie of crack cocaine and five live rounds of ammunition that
were in plain view in the vehicle’s console. Id. at 14, 16.
Appellant was charged with failure to use lights and driving an
unregistered vehicle.2 Appellant was acquitted of these charges in
Philadelphia Traffic Court3 on September 12, 2012. Appellant also was
____________________________________________
2 75 Pa.C.S. §§ 4302 and 1301, respectively.
3 Philadelphia Municipal Court underwent a restructuring in which it absorbed
the previously independent Traffic Court on June 19, 2013. Our Supreme
Court reassigned summary traffic violations to the Philadelphia Municipal
Court Traffic Division:
Particularly, rules 1002 and 1030 of the Rules of Criminal
Procedure for the Municipal Court and the Philadelphia Municipal
Court Traffic Division, as amended after June 19, 2013, distinguish
between non-traffic summaries and traffic summaries, and their
comments reinforce that the Traffic Division has jurisdiction over
traffic summary offenses. See Pa.R.Crim.P. Rule 1002, cmt. (“all
summary offenses under the motor vehicle laws . . . are under the
jurisdiction of the Municipal Court Traffic Division”); 1030, cmt.
(“the jurisdiction and functions of the Philadelphia Traffic Court
were transferred to the Philadelphia Municipal Court Traffic
Division”).
-2-
J-S75024-18
charged separately with possession of a controlled substance, firearms not to
be carried without a license, carrying a firearm in public in Philadelphia, and
carrying a loaded weapon.4 At a non-jury trial on April 9, 2014, Appellant’s
trial counsel stipulated that the firearm recovered was operable and that
defendant did not possess a license to carry a firearm in the Commonwealth
of Pennsylvania. Id. at 24. The trial court convicted Appellant of all charges.
Id. at 48. Appellant’s sentencing counsel filed a motion for extraordinary
relief, which the trial court denied without a hearing.
The trial court sentenced Appellant on September 22, 2015, to an
aggregate sentence of thirty to sixty months of incarceration followed by three
years of probation. See N.T. Sentencing, 9/22/15, at 18. Appellant filed a
post-sentence motion challenging the weight and sufficiency of his conviction
and asserting that his sentence was excessive. See Post-Sentence Mot.,
10/1/15, at 3. Appellant also filed a supplemental post-sentence motion
raising the compulsory joinder rule in Section 110. See Suppl. Post-Sentence
____________________________________________
The aforementioned amendments, collectively, illuminate our
Supreme Court’s intent following the restructure to divide the
Philadelphia Municipal Court’s labor to allocate disposition of
summary traffic offenses solely to the Philadelphia Municipal Court
Traffic Division.
Commonwealth v. Perfetto, 169 A.3d 1114, 1124 (Pa. Super. 2017) (en
banc) (footnote omitted), appeal granted, 182 A.3d 435 (Pa. 2018) (table).
4 35 P.S. § 780-113(a)(16) and 18 Pa.C.S. §§ 6106(a)(1), 6108, and
6106.1(a), respectively.
-3-
J-S75024-18
Mot., 10/2/15, at 3. The trial court denied the post-sentence motions, and
Appellant filed a direct appeal of his judgment of sentence.
On February 7, 2017, this Court disposed of Appellant’s direct appeal,
holding that Appellant’s motion to dismiss under the compulsory joinder rule
in 18 Pa.C.S. § 110 had not been timely filed. See Commonwealth v.
Nichols, 3647 EDA 2015, 2017 WL 499417, at *4 (Pa. Super. filed Feb. 7,
2017) (unpublished mem.). This Court also vacated Appellant’s conviction for
carrying a loaded weapon other than a firearm on sufficiency-of-the-evidence
grounds and affirmed the judgment of sentence in all other respects. See
Nichols, 2017 WL 499417, at *3, *7.
On March 13, 2017, the PCRA court docketed Appellant’s pro se PCRA
petition. Counsel was appointed, who filed an amended PCRA petition on
October 9, 2017, asserting that pre-trial counsel was ineffective for failing to
file a timely motion to dismiss under the compulsory joinder rule in 18 Pa.C.S.
§ 110. See Am. PCRA Pet., 10/9/17, at 3. The PCRA court issued a notice of
intent to dismiss pursuant to Pa.R.Crim.P. 907 on April 16, 2018.
Subsequently, the PCRA court dismissed Appellant’s amended petition on May
24, 2018.
On June 7, 2018, Appellant filed a timely notice of appeal. The PCRA
court did not order Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did not file one.
The PCRA court complied with Pa.R.A.P. 1925(a) by referencing its order
-4-
J-S75024-18
dismissing the amended PCRA petition, since it contained the PCRA court’s
reasoning therein. The PCRA court stated that Appellant’s
acquittal in Philadelphia Traffic Court on the summary traffic
offense [of driving without headlights] did not bar prosecution for
the criminal charges on which he was subsequently convicted,
[and] the claim is without merit. See [Perfetto, 169 A.3d 1114.5]
Counsel cannot be found ineffective for failing to pursue a
meritless claim.
Order Sur PCRA Pet., 5/24/18, at n.1.
Appellant raises the following issues for our review:
1. Whether the [PCRA c]ourt erred in denying the Appellant’s
PCRA petition without an evidentiary hearing on the issues
____________________________________________
5 The Pennsylvania Supreme Court has granted a petition for allowance of appeal
in Perfetto to address the following issues:
1. Whether [the] Superior Court erred in determining that [the]
Philadelphia Municipal Court—Traffic Division has sole
jurisdiction over summary traffic offenses even when those
charges are part of a single incident which also includes a
misdemeanor and/or felony charges[.] Is this decision in
conflict with 18 Pa.C.S. § 110, the 2002 amendment thereto
removing jurisdiction as an element of the offense, its
constitutional underpinnings, and decisions of this Court?
2. Where the lower [c]ourt dismissed the prosecution under 18
Pa.C.S. § 110 because all the prongs of the test for dismissal
under that statute were met, did the trial [c]ourt properly
dismiss the charges?
Commonwealth v. Perfetto, 182 A.3d 435, 435-36 (Pa. 2018) (table). We
are bound to apply the ruling in Perfetto unless and until it is overruled by
the Supreme Court of Pennsylvania. See Commonwealth v. Brigidi, 6 A.3d
995, 1001 (Pa. 2010).
-5-
J-S75024-18
raised in the amended PCRA petition regarding [pre-t]rial
[c]ounsel’s ineffectiveness.
2. Whether the [PCRA] court erred in not granting relief on the
PCRA petition alleging [pre-t]rial counsel was ineffective.
Appellant’s Brief at 8.6
In both issues, Appellant asserts that he is entitled to relief because
“prior counsel was ineffective for not filing a timely motion to dismiss under
compulsory joinder based on 18 Pa.C.S. § 110.” Id. at 14. Appellant argues
that “his acquittal of the summary traffic offenses on September 12, 2012, . .
. prior to his non-jury trial on the remaining offenses barred the later
prosecution in the Philadelphia Courts.” Id.
We review an order denying PCRA relief
to determine whether evidence of record supports the findings of
the PCRA court and whether its legal conclusions are free of error.
The PCRA court’s credibility determinations, when supported by
the record, are binding on this Court; however, we apply a de
novo standard of review to the PCRA court’s legal conclusions.
In this case, the PCRA court dismissed Appellant’s petition without
a hearing. There is no absolute right to an evidentiary hearing.
On appeal, we examine the issues raised in light of the record to
determine whether the PCRA court erred in concluding that there
were no genuine issues of material fact and in denying relief
without an evidentiary hearing.
____________________________________________
6 Appellant filed an application for relief requesting an extension of time to file
his appellate brief. The application was granted, extending Appellant’s
deadline until October 15, 2018, to file his brief. Appellant filed his brief on
September 27, 2018. Because thirty days from this date fell on a Saturday,
the Commonwealth had until October 29, 2018, to file its brief. See Pa.R.A.P.
2185(a)(1); 1 Pa.C.S. § 1908. The Commonwealth did not file its brief until
November 26, 2018, at which time the Commonwealth also filed an application
for an extension of time nunc pro tunc, requesting that this Court accept its
late filing. We grant the Commonwealth’s nunc pro tunc application for
extension of time to file its brief.
-6-
J-S75024-18
Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015) (en
banc) (internal quotation marks and citations omitted), aff’d 158 A.3d 618
(Pa. 2017).
Section 110 specifies that a prosecution is barred by a former
prosecution when the former prosecution resulted in an acquittal or conviction
and the subsequent prosecution is for:
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(1)(ii).7
In Perfetto, the defendant was convicted of a summary traffic violation
following a trial in absentia in the Philadelphia Municipal Court Traffic Division.
Perfetto, 169 A.3d at 1116. Subsequently, the Commonwealth proceeded
separately on driving under the influence (DUI) charges, which were held over
for court and listed for trial in the Philadelphia Court of Common Pleas. Id.
____________________________________________
7 Prior to an amendment in 2002, this subsection of the compulsory joinder
statute stated that a subsequent prosecution was barred by a former
prosecution that resulted in an acquittal or conviction when the subsequent
prosecution was for:
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 was within the jurisdiction of a single court unless
the court ordered a separate trial of the charge of such offense[.]
18 Pa.C.S. § 110(1)(ii) (1973) (amended 2002) (emphasis added).
-7-
J-S75024-18
The defendant filed a motion to dismiss the DUI prosecution, asserting that it
was barred by Section 110. Id. The trial court granted the defendant’s motion
to dismiss following a hearing. Id.
The Commonwealth appealed, and an en banc panel of this Court heard
argument on the matter. In reversing the trial court’s order dismissing the
DUI prosecution, this Court noted that
[o]ur Supreme Court outlined a four-prong test utilized to
determine when the compulsory joinder rule applied to
subsequent prosecution [based on the pre-2002 amendment to
Section 110]. If each of the prongs in the following test was met,
subsequent prosecution was barred:
(1) the former prosecution resulted in an acquittal or
conviction; (2) the current prosecution was based on the
same criminal conduct or arose from the same criminal
episode; (3) the prosecutor in the subsequent trial was
aware of the charges before the first trial; and (4) the
instant charges and the former charges were within the
jurisdiction of a single court.
Id. at 1118-19. This Court noted that
the amended language of Section 110 is clear and unambiguous,
and it requires a court to consider not the jurisdiction of a court,
but rather whether multiple offenses occurred within the same
judicial district. If so, and provided the prosecutor is aware of the
offenses, all charges shall be joined and prosecuted together.
Id. at 1120 (emphasis in original). Nevertheless, this Court held that
while jurisdiction is no longer an element of the compulsory
joinder test, the jurisdiction of a court remains a consideration
implicit to any compulsory joinder analysis, and it is particularly
important in those judicial districts that, for various reasons, have
distinct minor courts or magisterial district judges vested with
exclusive jurisdiction over specific matters.
-8-
J-S75024-18
***
One such example of where the exclusive jurisdiction of the court
of common pleas is superseded by the exclusive jurisdiction of a
minor court or magistrate district judge is found in 42 Pa.C.S. §
1302, which governs the jurisdiction and venue of traffic courts.
In judicial districts with a designated and open traffic court such
as Philadelphia, 42 Pa.C.S. § 1302 expressly defines the
jurisdiction of a traffic court and effectively carves out an
exception to the normal operation of the compulsory joinder rule.
Id. at 1121 (footnotes omitted). Accordingly, “because of the unique
jurisdictional organization of the Philadelphia Courts, [the defendant’s]
subsequent DUI prosecution [was] not barred.” Id. at 1125.
Here, we agree with the PCRA court that it properly dismissed
Appellant’s amended PCRA petition, since the analysis in Perfetto applies in
this matter. As set forth in Perfetto, the expressly defined jurisdiction of
Philadelphia Municipal Court Traffic Division creates an exception to the
normal operation of the compulsory joinder rule in Section 110. See id. at
1121. The same logic applies to the jurisdiction of the predecessor
Philadelphia Traffic Court, in which Appellant was acquitted of the summary
traffic offenses in this matter. See id. Therefore, the PCRA court’s legal
conclusion that Section 110 did not bar Appellant’s prosecution for possession
of a controlled substance and firearms following his acquittal of traffic offenses
in Philadelphia was without error. See id.; Burton, 121 A.3d at 1067.
Because Appellant’s ineffectiveness claim fails as a matter of law,
Appellant’s assertion that there are disputes of material facts requiring an
evidentiary hearing is unavailing. See Burton, 121 A.3d at 1067.
-9-
J-S75024-18
Accordingly, we affirm the order dismissing Appellant’s amended PCRA
petition without a hearing. See id.
Order affirmed. Commonwealth’s application for extension of time to
file brief granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/19
- 10 -