J-S46012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEANDRE PRINGLE PATTERS :
:
Appellant : No. 3586 EDA 2019
Appeal from the Order Entered November 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000993-2019
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 22, 2020
Appellant, Deandre Pringle Patters, appeals from the trial court’s
November 26, 2019 order denying his pretrial motion to dismiss several
firearm charges pursuant to the compulsory joinder rule.1 After careful
review, we affirm in part, reverse in part, and remand for further proceedings.
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1 “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.” Commonwealth v.
Calloway, 675 A.2d 743, 745 n.1 (Pa. Super. 1996). Here, Appellant
attached to his notice of appeal an order entered by the court on December
6, 2019, stating that this appeal is non-frivolous. While that order was for
some reason not entered on the docket, we will accept that it was filed because
it was stamped by Clerk of Courts. “While an order denying a motion to
dismiss charges on double jeopardy grounds is technically interlocutory, it is
appealable as of right as long as the trial court certifies the motion as non-
frivolous.” Commonwealth v. Lynn, 192 A.3d 194, 196 n.1 (Pa. Super.
2018); see also Pa.R.Crim.P. 587(B)(6).
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The trial court briefly summarized the facts and procedural history of
this case, as follows:
On November 17, 2018, following a traffic stop, [Appellant]
received a citation for summary traffic violations resulting from a
traffic stop for operating a vehicle with no rear lights. During this
interaction with police, [Appellant] was also arrested for carrying
a firearm without a license ([18 Pa.C.S. §] 6106[a][1])[,] …
carrying a firearm in public ([18 Pa.C.S. §] 6108[])[, and
possession of a firearm by a person prohibited (18 Pa.C.S. §
6105(a)(1),] after the traffic stop led to the recovery of a firearm
in [Appellant’s] vehicle. On March 15, 2019, [Appellant] was
found guilty in absentia of the summary traffic offenses. He was
fined and sentenced on that date. After the disposition of the
summary traffic offenses, the [section] 6105[,] … [section] 6106[,
and section 6108] charges have remained open.
[Appellant] filed a pretrial motion to dismiss [those charges]
pursuant to 18 Pa.C.S.[] § 110 on September 11, 2019[,] and the
trial court denied this motion on November 26, 2019.
Trial Court Opinion, 2/27/20, at 1-2 (footnotes, unnecessary capitalization,
and citations to the record omitted).
Appellant filed a timely notice of appeal from the court’s November 26,
2019 order. Herein, he states one issue for our review:
I. Did the trial court err in denying [Appellant’s] Motion to Dismiss
Pursuant to 18 Pa.C.S. § 110 where the Commonwealth failed to
join the prosecutions of all offenses arising from the same criminal
episode and occurring within the same judicial district, and where
[Appellant] was charged and found guilty of traffic offenses prior
to [the] commencement of the trial on the related firearms
charges forming the basis for the instant prosecution?
Appellant’s Brief at 3.
Initially, we note that the facts of this case are undisputed, and thus,
the issue before us “presents a question of law. Consequently, our scope of
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review is plenary, and our standard of review is de novo.” Commonwealth
v. Johnson, 221 A.3d 217, 219 (Pa. Super. 2019), appeal granted, 237 A.3d
962 (Pa. 2020) (citation omitted).
Appellant contends that his prosecution for the firearm offenses with
which he is charged is barred under the compulsory joinder rule set forth in
18 Pa.C.S. § 110 and our Supreme Court’s decision in Commonwealth v.
Perfetto, 207 A.3d 812 (Pa. 2019). Section 110 prohibits a subsequent
prosecution if:
(1) The former prosecution resulted in an acquittal or in a
conviction ... and the subsequent prosecution is 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. § 110(1)(ii).
In Perfetto, our Supreme Court addressed whether section 110(1)(ii)
barred the Commonwealth from prosecuting Perfetto on pending DUI charges
when he had already been tried and convicted of a summary traffic offense,
stemming from the same incident, in the Traffic Division of the Philadelphia
Municipal Court (“PMC”). Perfetto, 207 A.3d at 813. The Court ultimately
concluded that Perfetto could not be prosecuted for the DUI charges because
they could have been tried with the traffic offense in the General Division of
the PMC. The Court explained that, unlike the Traffic Division’s limited
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jurisdiction over summary traffic offenses, the General Division of the PMC has
jurisdiction to adjudicate both summary and misdemeanor offenses. Id.
at 823. Accordingly, because all of Perfetto’s alleged offenses arose from the
same criminal episode, they occurred within the same judicial district, the
prosecutors knew of the other offenses when they tried the case in the
municipal court, and the General Division of the PMC had original jurisdiction
over both the summary offense and the DUI offenses, the Perfetto Court
held that the Commonwealth was required to try all of its charges together in
the PMC.
After Perfetto, this Court decided Johnson. There, Johnson was
charged with a summary traffic offense, as well as possession of heroin and
possession with intent to deliver (PWID) heroin. Johnson, 221 A.3d at 218.
Johnson was initially convicted of the summary offense in the Traffic Division
of the PMC. Id. When the Commonwealth later sought to prosecute him in
the court of common pleas for his possession and PWID offenses, Johnson
filed a motion to dismiss those charges, citing section 110. Id. The trial court
denied the motion. On appeal, this Court affirmed in part and reversed in
part. Id. Initially, we held that the charge of possession of heroin should
have been dismissed under section 110 and Perfetto. Id. at 219. We
reasoned that the General Division of the PMC had jurisdiction over that
offense and, thus, the Commonwealth was required to try them together. Id.
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However, the Johnson panel concluded that the Commonwealth was
permitted to prosecute Johnson’s PWID charge pursuant to 18 Pa.C.S. §
112(1). That section states:
A prosecution is not a bar within the meaning of section 109 of
this title (relating to when prosecution barred by former
prosecution for same the offense) through section 111 of this title
(relating to when prosecution barred by former prosecution in
another jurisdiction) under any of the following circumstances:
(1) The former prosecution was before a court which lacked
jurisdiction over the defendant or the offense.
18 Pa.C.S. § 112(1).
The Johnson panel recognized that,
[t]he [PMC’s] criminal, subject-matter jurisdiction extends to
“summary offenses, except those arising out of the same episode
or transaction involving a delinquent act for which a petition
alleging delinquency is file…” and “criminal 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….” 42 Pa.C.S.[] § 1123(a)(1), (2). All other
criminal offenses occurring in the First Judicial District of
Pennsylvania come within the unlimited, original, subject-matter
of the Court of Common Pleas of Philadelphia.
Johnson, 221 A.3d at 220. Because Johnson’s PWID offense was punishable
by up to 15 years’ incarceration, the Johnson panel determined that his
former prosecution for his summary traffic offense occurred “before a court
which lacked jurisdiction over the … offense” of PWID. Id. at 221.
Accordingly, we held that “the court of common pleas may properly assert its
separate, original jurisdiction over that charge under [s]ection 112.” Id.
We agree with the Commonwealth that the circumstances of the present
case mirror those in Johnson. The Commonwealth explains:
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Here, just as in Johnson, the [PMC] had jurisdiction over
one of [Appellant’s] pending charges, but did not have jurisdiction
over the other two. The [PMC] only has jurisdiction over
misdemeanor or felony offenses punishable by up to five years of
imprisonment. 42 Pa.C.S. § 1123. [Appellant’s] charge for
possession of a firearm by a prohibited person, 18 Pa.C.S. [§]
6105, can be either a first or second-degree felony, which may be
punishable up to [ten or] twenty years. 18 Pa.C.S. § 1103(1).
[Appellant’s] charge for carrying a firearm without a license, 18
Pa.C.S. § 6106(a)(1), is a third-degree felony,3 which is
punishable by up to seven years. 18 Pa.C.S. § 1103(3).
[Appellant’s] charge for carrying a firearm in public in
Philadelphia, 18 Pa.C.S. § 6108[,] is a first-degree misdemeanor,
which is punishable by up to five years. 18 Pa.C.S. § 6119; 18
Pa.C.S. § 1104(1). Because the municipal court did not have
jurisdiction over [Appellant’s section] 6105 and [section] 6106
charges, it properly applied Johnson and denied [Appellant’s]
motion to dismiss [those charges]. However, because the
municipal court did have jurisdiction over [Appellant’s section]
6108 charge, it should have granted [Appellant’s] motion in that
limited respect.
3 The Commonwealth recognizes that under 18 Pa.C.S. §
6106(a)(2), the crime is a first-degree misdemeanor where
[a] defendant was “otherwise eligible” for licensure and “has
not committed any other criminal violation.[”] Here[,]
however, [Appellant’s] information specifically charged him
under [section] 6106(a)(1), the felony subsection.
Commonwealth’s Brief at 6.
Based on the Commonwealth’s argument and the record before us, we
conclude that Johnson controls our decision in this case.2 We reject
Appellant’s counter-argument that his firearm charges should be dismissed
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2 While our Supreme Court has granted allowance of appeal in Johnson, it
remains binding precedent unless or until it is overturned. See In re S.T.S.,
Jr., 76 A.3d 24, 44 (Pa. Super. 2013) (citing Sorber v. American Motorists
Ins. Co., 680 A.2d 881, 882 (Pa. Super. 1996) (holding that even though a
petition for allowance of appeal was pending before the Pennsylvania Supreme
Court, the decision remained binding precedent as long as it had not been
overturned by the Court)).
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because the traffic offense could have been prosecuted along with the firearm
charges in the court of common pleas. As the Commonwealth aptly observes,
“the applicability of [section] 112(1) does not depend on the current court[’s]
having jurisdiction over the previously adjudicated charges, but rather[,]
whether the court that adjudicated those prior charges also had jurisdiction
over the charges [Appellant] is seeking to dismiss.” Commonwealth’s Brief at
7.
Moreover, we decline to follow the case cited by Appellant,
Commonwealth v. Foreman, 2019 WL 2375407, *2 (Pa. Super. June 5,
2019) (unpublished memorandum) (finding that, under Perfetto and a
“straightforward application” of section 110(1)(ii), the Commonwealth was
precluded from prosecuting Foreman for misdemeanor and felony firearm
charges because he had previously been convicted of summary offenses
before the PMC stemming from the same conduct). First, Foreman is a non-
precedential memorandum decision, while Johnson is binding precedent.
Second, the Foreman panel did not consider section 112. Third, the
Foreman case was decided before Johnson. Accordingly, Johnson controls.
In sum, we conclude that the Commonwealth is barred from prosecuting
Appellant’s charge under 18 Pa.C.S. § 6108, as that offense could have been
tried with Appellant’s summary traffic offense in the PMC. Consequently, we
reverse the portion of the order denying Appellant’s motion to dismiss his
charge under section 6108. However, we affirm the trial court’s order to the
extent it denied Appellant’s motion to dismiss his charges under 18 Pa.C.S.
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§§ 6105 and 6106(a)(1). The Commonwealth is permitted to prosecute
Appellant for those crimes under section 112(1) and Johnson. Accordingly,
we remand for further proceedings on the section 6105 and section
6106(a)(1) charges.3
Order reversed in part and affirmed in part. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2020
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3 On December 1, 2020, Appellant’s counsel filed a petition to withdraw from
representing Appellant due to a change in his employment. We hereby grant
that petition, and direct the trial court to appoint new counsel for Appellant on
remand.
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