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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARCUS POWELL
Appellant No. 640 EDA 2019
Appeal from the Judgment of Sentence Entered February 11, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0008101-2013
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: Filed: July 23, 2020
Appellant, Marcus Powell, appeals from his judgment of sentence of
11½—23 months’ imprisonment for carrying a firearm without a license.1
Appellant argues that the trial court, the Court of Common Pleas of
Philadelphia County, erred by denying his motion to dismiss the charges under
the compulsory joinder rule, 18 Pa.C.S.A. § 110(1)(ii), because the
Philadelphia Traffic Court previously found him guilty of summary vehicle
offenses arising from the same criminal episode. Counsel has filed an Anders2
brief and an application to withdraw as counsel. We grant the application to
withdraw, and we affirm.
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1 18 Pa.C.S.A. § 6106(a)(1). The court also found Appellant guilty of carrying
a firearm on the streets of Philadelphia without a license, 18 Pa.C.S.A. § 6108,
but imposed no further penalty for this offense.
2 Anders v. California, 386 U.S. 738 (1967).
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On December 23, 2012, Appellant and a companion were sitting in
Appellant’s car in a parking lot behind an apartment building at 1120 North
66th Street in the City of Philadelphia. Officer Kevin Palmer and his partner
were in uniform in a marked patrol car surveying the area in connection with
a reported shooting. As the patrol car passed Appellant’s car, Officer Palmer
noted expired inspection and emissions stickers on its windshield. As Officer
Palmer’s car backed up to approach Appellant’s car, Appellant and his
companion ran in opposite directions from the car. Officer Palmer pursued
Appellant and saw him pull a silver object from his right side. The object was
a gun, but the officer could not determine at that moment whether it was a
real gun. Appellant ran into the basement of the apartment building and
locked the door behind him. Officer Palmer had to kick multiple times to gain
entry. By the time he did, Appellant was out of sight, and nobody else was in
the basement. The officer heard someone running up a staircase and the
sound of a metallic object hitting the floor near the stairs. The officer was
unable to apprehend Appellant, but when he returned to the basement, he
retrieved a loaded Sig Sauer nine millimeter semi-automatic handgun. N.T.
11/13/15, at 13-20.
The car was registered to Appellant. Officer Palmer identified Appellant
from a photograph as the person he chased, and an arrest warrant was issued.
Appellant did not have a license to carry a firearm. The handgun was tested
and was determined to be operable. Id. at 17-19, 23-24.
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Appellant was charged with firearms violations under Section
6106(a)(1), a felony, and Section 6108, a misdemeanor. He also received
two traffic citations for an expired inspection sticker and expired emission
sticker, respectively.3 On February 26, 2013, a Philadelphia Traffic Court
magistrate found Appellant guilty in absentia of both violations and fined him
for each violation. As of this date, the Philadelphia Traffic Court had exclusive
jurisdiction over all prosecutions for summary offenses arising under the Motor
Vehicle Code. On June 19, 2013, however, the Pennsylvania General
Assembly amended the Judicial Code and merged the Traffic Court into the
Philadelphia Municipal Court by reorganizing the Municipal Court into two
divisions: General Division and Traffic Division. See Act No. 2013-17.
On June 21, 2013, following a preliminary hearing, the Philadelphia
Municipal Court held Appellant for court on the firearms charges. Prior to trial
in the Court of Common Pleas on November 13, 2015, Appellant moved to
dismiss the firearms charges under the compulsory joinder rule. The Court of
Common Pleas denied Appellant’s motion on the ground that the Traffic Court
magistrate who adjudicated Appellant’s summary traffic violations did not
have jurisdiction to hear any misdemeanor or felony charges. N.T. 11/13/15,
at 7-8. The Court of Common Pleas presided over a non-jury trial and found
Appellant guilty of the firearms charges. Subsequently, the court imposed
sentence.
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3 75 Pa.C.S.A. §§ 4703(a) and 4706(c)(1), respectively.
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Appellant did not file a direct appeal, but shortly after the appeal period
expired, he filed a petition under the Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541—9546, seeking reinstatement of his appellate rights nunc pro tunc.
On February 19, 2019, the court granted Appellant’s petition and permitted
him to appeal nunc pro tunc. This appeal followed. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
In his Anders brief, counsel reviewed the following issue before
concluding that this appeal was wholly frivolous: “Was the dismissal of
[A]ppellant’s motion under the compulsory joinder rule in 18 Pa.C.S.[A.] §
110 proper when the alleged traffic offense occurred before the merger of
Philadelphia’s Traffic Court and Municipal Court[?]” Anders Brief at 6.
“When presented with an Anders brief, this court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Blauser, 166 A.3d 428, 431 (Pa. Super.
2017). To withdraw from an appeal under Anders, counsel must (1) provide
a summary of the procedural history and facts, with citations to the record;
(2) refer to anything in the record that she believes arguably supports the
appeal; (3) set forth her conclusion that the appeal is frivolous; and (4) state
her reasons for concluding that the appeal is frivolous, articulating the relevant
facts of record, controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous. Id. Counsel also must provide the
appellant with a copy of the Anders brief, together with a letter that advises
the appellant of his or her right to “(1) retain new counsel to pursue the
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appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant
deems worthy of the court’s attention in addition to the points raised by
counsel in the Anders brief.” Commonwealth v. Prieto, 206 A.3d 529, 533
(Pa. Super. 2019). Substantial compliance with these requirements is
sufficient. Id.
In this case, counsel’s Anders brief summarizes the procedural history
and facts with record citations, discusses the compulsory joinder issue that
Appellant wanted addressed, concludes that the appeal was frivolous, provides
reasons for this conclusion and requests leave to withdraw as counsel.
Further, counsel served a copy of the Anders brief on Appellant. Appended
to the brief is the letter that counsel sent to Appellant advising him of his
rights to retain new counsel, represent himself pro se, or write to this Court
raising any points he believes are meritorious. Therefore, counsel complied
with Anders’ technical requirements,4 and we will proceed to the issue on
appeal.
“The terms ‘wholly frivolous’ and ‘without merit’ are often used
interchangeably in the Anders . . . context.” Commonwealth v. Blauser,
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4While counsel served Appellant with the Anders brief, it appears that counsel
did not serve Appellant with her application to withdraw as counsel. The
Anders brief merely states that counsel “notified” Appellant of her application
to withdraw, id. at 12, and there is no certificate of service attached to the
application. This omission is insignificant, because the Anders brief clearly
states that counsel seeks leave to withdraw and provides reasons for this
request. Id. at 10-12. Cf. Commonwealth v. Smith, 701 A.2d 1301, 1303
& n.7 (Pa. Super. 1997) (deeming it “satisfactory” where counsel moved to
withdraw in Anders brief and furnished the brief to appellant but did not file
separate application to withdraw).
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166 A.3d 428, 432 (Pa. Super. 2017). “[Regardless of which] term is used to
describe the conclusion an attorney must reach as to the appeal before
requesting to withdraw and the court must reach before granting the request,
what is required is a determination that the appeal lacks any basis in law or
fact.” Id.
Appellant contends that his prosecution for traffic offenses in Traffic
Court barred his subsequent prosecution for weapons offenses under the
compulsory joinder rule in 18 Pa.C.S.A. § 110(1)(ii). We disagree. The
subsequent prosecution was proper under 18 Pa.C.S.A. § 112(1), an exception
to the compulsory joinder rule.
The issue of whether the compulsory joinder rule applies to this case is
a question of law for which our standard of review is de novo and our scope
of review is plenary. Commonwealth v. Fithian, 961 A.2d 66, 71, n.4 (Pa.
2008).
Section 110(1)(ii) bars a subsequent prosecution if each prong of the
following test is met: (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) all
charges [are] within the same judicial district as the former prosecution.
Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013).
Section 112(1) provides that a former “prosecution is not a bar within
the meaning of section 109 of this title . . . through section 111 of this title .
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. . [if t]he former prosecution was before a court which lacked jurisdiction over
the defendant or the offense.” 18 Pa.C.S.A. § 112(1). “Clearly, this provision
is an exception to Section 110, because the exception applies to Sections
109—111.” Commonwealth v. Johnson, 221 A.3d 217, 220 (Pa. Super.
2019).
Two recent decisions analyze the interplay between Section 110(1)(ii)
and Section 112(1): our Supreme Court’s decision in Commonwealth v.
Perfetto, 207 A.3d 812 (Pa. 2019), and our own decision several months
later in Johnson. In Perfetto, on July 3, 2014, the defendant was operating
a motor vehicle in Philadelphia when a police officer stopped him. The officer
issued the defendant a citation for the summary offense of driving without
lights when required, 75 Pa.C.S.A. § 4302(a)(1). The defendant was also
charged with three counts of driving under the influence (“DUI”), 75 Pa.C.S.A.
§ 3802. On September 4, 2014, a hearing officer in the Philadelphia Municipal
Court’s Traffic Division tried the defendant in absentia solely on the summary
traffic offense and found him guilty. Notably, as of this date, the Traffic Court
had ceased to exist as a separate court and had become a division of the
Municipal Court. The Commonwealth proceeded separately on the DUI
charges in the Philadelphia Municipal Court’s General Division. Following a
preliminary hearing, Appellee was held over for court and the matter was
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listed for trial in the Philadelphia Court of Common Pleas.5 In 2015, the Court
of Common Pleas granted the defendant’s motion to dismiss the DUI charges
under Section 110. The Commonwealth appealed, and this Court reversed.
Our Supreme Court granted the defendant’s petition for allowance of appeal,
reversed this Court’s decision, and reinstated the order granting the order of
dismissal. The Supreme Court reasoned:
[The defendant’s] former prosecution for the summary offense of
driving without lights when required resulted in a conviction; (2)
[his] current prosecution for DUI arose during the same criminal
episode, namely one traffic stop[,] . . . (3) the prosecutor was
aware of [his] DUI charges before the commencement of [his] trial
on his summary offense of driving without lights when required;
and (4) [his] DUI offenses occurred within the same judicial
district as the former prosecution, namely the First Judicial
District.
Id. at 822. Thus, “a straightforward application of the plain language of
Subsection 110(1)(ii) of the compulsory joinder statute to the circumstances
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5 The Philadelphia Municipal Court has jurisdiction over DUI trials under 42
Pa.C.S.A. § 1123(a)(2), which provides jurisdiction over “[c]riminal offenses
by any person (other than a juvenile) for which no prison term may be
imposed or which are punishable by imprisonment for a term of not more than
five years, including indictable offenses under Title 75 (relating to vehicles).”
Id. There is, however, one procedural exception. The Commonwealth has
the right to demand a jury trial in a Municipal Court case. Pa.R.Crim.P.
1001(D). When the Commonwealth makes this demand, the Municipal Court
must hold a preliminary hearing instead of a trial. Id. If the defendant is
held for court, the jury trial must take place in the Court of Common Pleas.
Id. In Perfetto, the Commonwealth demanded a jury trial under Rule
1001(D), so instead of holding trial on the defendant’s DUI charge, the
Municipal Court held a preliminary hearing and held the defendant for trial in
the Court of Common Pleas. See Commonwealth v. Perfetto, No. 7 EAP
2018 (Pa.), Commonwealth’s Supreme Court Brief at 3.
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presented in this appeal makes clear that the Commonwealth is precluded
from prosecuting [the defendant] for his DUI charges.” Id.
The Supreme Court rejected the Commonwealth’s argument that
Section 112 applied to this case, because the Municipal Court had jurisdiction
over all of the defendant’s charges:
Section 1121 of the Judicial Code speaks directly to the
organization and jurisdiction of the Philadelphia Municipal Court .
. . Subsection 1121(b)(3) clearly and unambiguously states that
the General Division shall exercise full jurisdiction of the Municipal
Court under 42 Pa.C.S.[A.] § 1123(a) (relating to jurisdiction and
venue). 42 Pa.C.S.[A.] § 1121(b)(3). In other words, unlike the
limited jurisdiction of the Traffic Division of the Philadelphia
Municipal Court to consider only summary traffic offenses, id. §
1121(c)(3), the General Division has jurisdiction to adjudicate any
matter that is properly before the Municipal Court. Thus . . . the
reality is that Appellant’s former prosecution for his summary
offense was before a court (namely, the Philadelphia Municipal
Court) that had jurisdiction to adjudicate all of Appellant’s
charges, albeit in the court’s General Division.
Id. at 823.
In Johnson, on June 23, 2015, police stopped the defendant for
careless driving and discovered that he was driving with a suspended license.
They patted him down and found clear baggies containing heroin. The
defendant was charged with possession with intent to deliver heroin (“PWID”)
and knowing or intentional possession of heroin.6 He also received a citation
for the summary traffic offense of driving with a suspended license. Before
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6 35 P.S. § 780-113(a)(30) and (a)(16), respectively.
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the drug charges went to court, Johnson was tried and convicted of the
summary traffic offense in the Philadelphia Municipal Court—Traffic Division.
The defendant was held for court on the drug charges following a
preliminary hearing in the Municipal Court—General Division. In the Court of
Common Pleas, the defendant filed a motion to dismiss the drug charges under
the compulsory joinder rule. The Court of Common Pleas denied this motion,
and the defendant took an interlocutory appeal to this Court.
We affirmed in part and reversed in part. The Commonwealth conceded,
and we agreed, that the compulsory joinder rule applied to the charge of
knowing or intentional possession of heroin. Thus, the Court of Common
Pleas erred by refusing to dismiss this charge. Id., 221 A.3d at 219-20. On
the other hand, we held that the Court of Common Pleas properly refused to
dismiss the PWID charge, because Section 112(1) “trump[ed] Section 110”
and permitted prosecution of this charge. Id. at 220. The Municipal Court
lacked jurisdiction to try offenses with maximum sentences greater than five
years’ imprisonment, but the maximum possible sentence on the defendant’s
PWID charge was 15 years. Since this maximum exceeded the Municipal
Court’s limit,
[the defendant’s] former prosecution for driving with a suspended
license occurred “before a court which lacked jurisdiction over the
. . . offense” of possession of heroin with intent to deliver. 18
Pa.C.S.A. § 112(1). Accordingly, the court of common pleas may
properly assert its separate, original jurisdiction over that charge
under Section 112.
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Id., 221 A.2d at 221. We emphasized that Perfetto was distinguishable,
because
[u]nlike [Perfetto], where the summary-offense prosecution
occurred before a court that also had jurisdiction over the DUI
charge, Johnson’s case has not come before a court with
jurisdiction over the [PWID] offense. Simply stated, he has not
yet been in jeopardy for that offense, because the Philadelphia
Municipal Court lacked jurisdiction to adjudicate it. The
Commonwealth has not placed him “in jeopardy of life or limb”
regarding that offense. Pa. Const. Art. I, § 10. It may do so for
the first time in the court of common pleas.
Id. (emphasis in original).
We reach the same conclusion in the present case as Johnson did with
regard to the PWID charge: Section 112(1) trumps Section 110. At the time
of Appellant’s trial in Philadelphia Traffic Court for expired inspection and
emission stickers, that Court had not yet been absorbed into the Philadelphia
Municipal Court.7 It was a separate entity in Philadelphia’s judicial system
with exclusive jurisdiction over summary offenses arising under Title 75. 42
Pa.C.S.A. § 1302(a). It did not have jurisdiction over the felony firearm
charge against Appellant under Section 6106(a)(1) or the misdemeanor
firearm charge under Section 6108. Thus, in the words of Section 112,
Appellant’s “former prosecution” in the Traffic Court “was before a court which
lacked jurisdiction over the . . . [firearms] offense[s].” 18 Pa.C.S.A. § 112(1).
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7 In contrast, the events in Perfetto and Johnson took place after the Traffic
Court’s absorption into the Municipal Court. Other than this factual distinction,
the present case is similar to Johnson.
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We hold that the Traffic Court prosecution against Appellant did not preclude
his subsequent prosecution for the firearms violations in the Court of Common
Pleas.
We have conducted an independent review of the record and addressed
Appellant’s argument on appeal. Based on our conclusions above, we agree
with Appellant’s counsel that the issue Appellant seeks to litigate in this appeal
is without merit. We affirm the judgment of sentence and grant counsel’s
application to withdraw.
Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/20
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