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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ERIC SYDNEY :
:
Appellant : No. 972 EDA 2020
Appeal from the Order Entered March 3, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007577-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED APRIL 20, 2021
Appellant Eric Sydney appeals from the trial court’s order denying his
pretrial motion to dismiss the charges of possession of firearm by a person
prohibited, carrying a firearm without a license, receiving stolen property, and
carrying a firearm in public in Philadelphia,1 pursuant to the compulsory
joinder rule.2 Appellant argues that following his conviction for a summary
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 3925(a), and 6108, respectively.
2 18 Pa.C.S. § 110. “Pennsylvania law traditionally provided a criminal
defendant the right to an immediate appeal from an order denying a pretrial
motion to dismiss on double jeopardy grounds.” Commonwealth v. Kemick,
240 A.3d 214, 217 (Pa. Super. 2020) (citations omitted and formatting
altered). “If the trial court enters an order denying the motion to dismiss on
double jeopardy grounds and in doing so, makes no finding, in writing, that
the motion is frivolous, then the order is a collateral order under Rule 313 and
is immediately appealable.” Id. (citations omitted).
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traffic offense arising from the same criminal episode as the instant offenses,
the compulsory joinder rule bars the prosecution for these charges.
Specifically, Appellant contends that this Court’s decision in Commonwealth
v. Johnson, 221 A.3d 217 (Pa. Super. 2019) (Johnson I), appeal granted,
237 A.3d 962 (Pa. 2020), was wrongly decided. Because our Supreme Court
recently reversed Johnson I in Commonwealth v. Johnson, ___ A.3d ___,
23 EAP 2020, 2021 WL 1133029 (Pa. filed Mar. 25, 2021) (Johnson II), we
agree with Appellant and reverse the trial court’s order.
Because we write for the parties, we need not reiterate the factual and
procedural background of this matter. Briefly, we note that Appellant was
convicted in absentia in the Traffic Division of the Philadelphia Municipal Court
of a summary offense that arose from the same criminal episode as the above-
mentioned offenses. Appellant then filed a motion requesting that the
Philadelphia Court of Common Pleas (trial court) dismiss the instant charges
pursuant to the compulsory joinder rule. On March 3, 2020, the trial court
denied Appellant’s motion to dismiss, and this timely appeal followed.
Appellant argues that pursuant to Section 110 and Commonwealth v.
Perfetto, 207 A.3d 812 (Pa. 2019), the charges against him should have been
dismissed. Appellant’s Brief at 6-17. As noted above, Appellant claims that
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the trial court erred by relying on Johnson I, because Johnson I was wrongly
decided.3 Id. at 6-7.
The Commonwealth responds that Johnson I was controlling in this
matter. Commonwealth’s Brief at 4-7.
By way of background, Section 110 sets forth the compulsory joinder
rule, which prohibits a subsequent prosecution following a former prosecution
for a different offense if four elements are met: (1) the former prosecution
resulted in an acquittal or conviction; (2) the current prosecution is based
upon the same criminal conduct or arose from the same criminal episode as
the former prosecution; (3) the prosecutor was aware of the instant charges
before the trial on the former charges began; and (4) the instant offense
occurred within the same judicial district as the former prosecution. See
Perfetto, 207 A.3d at 821; see also 18 Pa.C.S. § 110(1)(ii). In Perfetto,
the defendant was charged with three counts of DUI and a summary traffic
offense arising out the same criminal episode. Perfetto, 207 A.3d at 815.
The Perfetto Court held that the defendant’s conviction before the
Philadelphia Municipal Court’s Traffic Division for the summary traffic offense
barred his subsequent prosecution for DUI. See id. at 822.
Subsequent to Perfetto, this Court decided Johnson I. The defendant
in Johnson I was charged with possession of heroin with intent to deliver
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3In his brief, Appellant requests that this panel certify his case for a Court en
banc to overrule Johnson I. Appellant’s Brief at 7, 18. In light of our
Supreme Court’s decision in Johnson II, Appellant’s request for consideration
by a Court en banc is moot.
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(PWID), a felony, and possession of heroin, a misdemeanor, and a summary
traffic offense arising from the same criminal episode. See Johnson I, 221
A.3d at 218. Like in Perfetto, the defendant was convicted of the summary
traffic offense in a separate proceeding. See id. The defendant then sought
dismissal of the drug charges pursuant to Section 110. See id. This Court
distinguished Perfetto, and interpreted 18 Pa.C.S. § 112(1) as providing an
exception to the compulsory joinder rule where the former prosecution
occurred before a court that lacked jurisdiction over the offense charged in
the subsequent prosecution. Id. at 220-21. The Johnson I Court concluded
that because a misdemeanor drug charge could have been tried in the
Philadelphia Municipal Court, the compulsory joinder rule barred the
prosecution of the defendant for that offense. Id. at 221. However, because
the Philadelphia Municipal Court lacked jurisdiction over the felony PWID
charge, the Johnson I Court held that Section 112(1) permitted a subsequent
prosecution of the defendant for PWID in the Court of Common Pleas. Id.
On March 25, 2021, while this appeal was pending, the Pennsylvania
Supreme Court reversed this Court’s decision in Johnson I. See Johnson
II, 2021 WL 1133029. In Johnson II, our Supreme Court rejected Johnson
I’s interpretation of Section 112(1) and explained that “the Commonwealth
must generally assure that known offenses are consolidated at the common
pleas level, when they arise out of a single criminal episode and occur in the
same judicial district.” Id., 2021 WL 1133029 at *6. The Supreme Court
remanded the case for dismissal of the PWID charge. Id.
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Here, the trial court expressly relied on Johnson I and its interpretation
of Section 112(1) in denying Appellant’s motion to dismiss pursuant to Section
110. See Trial Ct. Op., 6/16/20, at 2, 4-5. Pursuant to Johnson II, we are
constrained to reverse the trial court’s order denying Appellant’s motion to
dismiss, and we remand this case to the trial court to enter an order dismissing
the charges.
Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2021
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