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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JALIL COOPER : No. 566 EDA 2016
Appeal from the Order Entered January 15, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014102-2011
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED NOVEMBER 23, 2021
In this matter on remand from our Supreme Court for the second time,
the Commonwealth appeals from the order entered in the Court of Common
Pleas of Philadelphia County granting Appellee Jalil Cooper’s motion to dismiss
misdemeanor and felony charges pursuant to the compulsory joinder rule,
which is set forth at Section 110 of the Crimes Code, 18 Pa.C.S. § 110. For
the reasons set forth below, we reverse the order of the Court of Common
Pleas and remand for further proceedings.
We briefly recount the relevant factual and procedural history of this
case, which has been more fully elucidated in our prior decisions in this matter.
On November 28, 2011, Appellee was stopped by Philadelphia police officers
following an attempted traffic stop and ensuing car chase. As a result of the
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* Retired Senior Judge assigned to the Superior Court.
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incident, Appellee was charged with a felony count of fleeing or attempting to
elude police and two misdemeanor counts of recklessly endangering another
person (“REAP”).1 Appellee was also cited for three summary violations of the
Pennsylvania Vehicle Code (“VC”): reckless driving, driving with a suspended
license, and disregarding a steady red signal.2
On February 23, 2012, the summary traffic offenses matter proceeded
to trial in Philadelphia Traffic Court, and Appellee was found guilty of
disregarding a steady red signal, not guilty of driving with a suspended license,
and the reckless driving charge was dismissed. Following the resolution of the
summary traffic offenses, Appellee filed in the Court of Common Pleas of
Philadelphia County a motion to dismiss the felony and misdemeanor charges
arising out of the November 28, 2011 incident. On January 15, 2016, the
Court of Common Pleas granted Appellee’s motion, dismissing the charges
with prejudice. The Commonwealth then filed a timely appeal.
On September 21, 2017, this Court filed a memorandum decision
reversing the Court of Common Pleas’ order granting Appellee’s motion to
dismiss. See Commonwealth v. Cooper, No. 566 EDA 2016 (Pa. Super.
filed September 21, 2017) (unpublished memorandum). Appellee filed a
petition for allowance of appeal with our Supreme Court, and while the petition
remained pending, the Court issued Commonwealth v. Perfetto, 207 A.3d
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1 75 Pa.C.S. § 3733(a) and 18 Pa.C.S. § 2705, respectively.
2 75 Pa.C.S. §§ 3736(a), 1543(a), and 3112(a)(3)(i), respectively.
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812 (Pa. 2019), holding that Section 110 precluded the Commonwealth from
pursuing a driving under the influence (“DUI”) prosecution in the General
Division of Philadelphia Municipal Court after the defendant had already been
tried on summary traffic offenses in the Traffic Division of that same court.
On June 17, 2019, the Supreme Court granted Appellee’s petition for
allowance of appeal in this case, vacated our September 21, 2017 decision,
and remanded for further proceedings consistent with Perfetto. See
Commonwealth v. Cooper, 215 A.3d 2 (Pa. 2019) (per curiam).
On the initial remand from the Supreme Court, we again reversed the
Court of Common Pleas’ grant of Appellee’s motion to dismiss. We
distinguished Perfetto, where the summary traffic offenses and DUI charges
could have been jointly tried in the General Division of Philadelphia Municipal
Court, from this case where Appellee was tried on the summary traffic offenses
in Philadelphia Traffic Court, prior to that court’s June 19, 2013 abolition.
Because Appellee’s summary traffic offense could only have been brought in
Philadelphia Traffic Court at the time of his trial and his felony and
misdemeanor charges had to proceed in the Court of Common Pleas, we
concluded that the compulsory joinder rule did not bar Appellee’s subsequent
felony and misdemeanor prosecution because it fell within the exception to
the compulsory joinder rule set forth in Section 112(1) of the Crimes Code,
18 Pa.C.S. § 112(1). See Commonwealth v. Cooper, No. 566 EDA 2016
(Pa. Super. filed March 3, 2021) (unpublished memorandum at 7-9). In our
prior decision, we relied on this Court’s en banc opinion in Commonwealth
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v. Atkinson, 245 A.3d 1140 (Pa. Super. 2021) (en banc), vacated, 252 A.3d
1078 (Pa. 2021) (per curiam) (“Atkinson I”), which involves a nearly
identical factual predicate to the present case.
Appellant again petitioned our Supreme Court for allowance of appeal,
and while the petition was pending our Supreme Court decided
Commonwealth v. Johnson, 247 A.3d 981 (Pa. 2021). In Johnson, the
Court addressed the Section 112(1) exception, which provides that “[a]
prosecution is not a bar within the meaning of” Section 110 when “[t]he
former prosecution was before a court which lacked jurisdiction over the
defendant or the offense.” 18 Pa.C.S. § 112(1). The Court in Johnson held
that “the offense” as used in that statute “means the offense that was the
subject of an initial prosecution resulting in conviction or acquittal.” 247 A.3d
at 987. The Court concluded that the Commonwealth was barred in that case
from prosecuting the defendant on a possession with intent to deliver a
controlled substance (“PWID”) charge in the Court of Common Pleas of
Philadelphia County after a summary trial in the Traffic Division of Municipal
Court because the Traffic Division had jurisdiction over both the defendant
and the summary traffic offense. Id. at 986-87. The Court noted that “[t]he
ultimate purport [of its decision], with respect to the summary-and-greater-
offenses paradigm, is 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. at
987.
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On August 25, 2021, our Supreme Court granted Appellee’s petition for
allowance of appeal in this matter, vacated our March 3, 2021 decision, and
remanded for further proceedings consistent with Johnson. See
Commonwealth v. Cooper, ___ A.3d ___, No. 123 EAL 2021 (Pa. filed
August 25, 2021) (per curiam). The Court also vacated this Court’s en banc
decision in Atkinson I, and the en banc Court has now issued a further
decision in that case addressing the application of the compulsory joinder rule
following Johnson. Commonwealth v. Atkinson, ___ A.3d ___, 2021 PA
Super 208 (filed October 19, 2021) (en banc) (“Atkinson II”). We did not
order further briefing upon remand in this matter, see Pa.R.A.P. 2140, and
we therefore address the issue the Commonwealth has consistently presented
in this appeal: whether the Court of Common Pleas erred in granting
Appellee’s motion to dismiss the felony and misdemeanor charges based upon
the compulsory joinder rule.
Our standard of review of a motion to dismiss on the basis of the
compulsory joinder rule is de novo, and our scope of review is plenary.
Commonwealth v. Pammer, 232 A.3d 931, 933 (Pa. Super. 2020). Section
110 of the Crimes Code provides as follows:
Although a prosecution is for a violation of a different provision of
the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or in a
conviction . . . and the subsequent prosecution is for:
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(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). As stated above, Section 112(1) provides an
exception to the compulsory joinder rule, such that a “former prosecution”
does not bar a subsequent prosecution that otherwise falls within the ambit of
the compulsory joinder rule where the “prosecution was before a court which
lacked jurisdiction over the defendant or the offense,” with the “offense” being
one that “was the subject of an initial prosecution resulting in conviction or
acquittal.” 18 Pa.C.S. § 112(1); Johnson, 247 A.3d at 987.
Upon review, we conclude that our en banc decision in Atkinson II is
dispositive of this appeal. In Atkinson II, the defendant, Atkinson, was
arrested in January 2013 and charged with DUI and the summary offense of
disregarding a traffic device. Atkinson II, 2021 PA Super 208, at *3. On
March 13, 2013, Atkinson was found guilty of the summary offense in the
Traffic Court of Philadelphia. Id. The Commonwealth continued its
prosecution of Atkinson on the DUI charge in the Criminal Trial Division of
Municipal Court, and Atkinson filed a motion to dismiss based upon the
compulsory joinder rule. Id. The Municipal Court denied the motion, and she
sought relief in the Court of Common Pleas by means of a petition for writ of
certiorari, which that court denied. Id.
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In Atkinson II, this Court first discussed the jurisdiction over the
prosecution of traffic offenses in Philadelphia, both before and after the
abolition of the Traffic Court of Philadelphia:
In 1968, the Philadelphia Traffic Court was authorized and
established under Article V, §§ 1 and 6(c) of the Pennsylvania
Constitution and 42 Pa.C.S. §§ 301, 1321 of the Judicial Code.
The Philadelphia Traffic Court was granted exclusive jurisdiction
over all prosecutions for summary offenses arising under the [VC]
and any related City Ordinance committed within the limits of the
City. Neither the Criminal Trial Division of the Philadelphia
Municipal Court nor the Philadelphia Court of Common Pleas had
jurisdiction to try summary VC offenses. See 42 Pa.C.S. §
1123(a)(1) (Municipal Court had jurisdiction over “[s]ummary
offenses, except for those within the jurisdiction of the
Traffic Court of Philadelphia”) (emphasis added); see also id.
at § 1302(b) (“The jurisdiction of a traffic court . . . shall be
exclusive of the courts of common pleas[.]”) (emphasis
added).
...
On June 19, 2013, the Traffic Court of Philadelphia was effectively
abolished when the General Assembly restructured the
Philadelphia Municipal Court, creating two administrative sections,
the General Division and the Traffic Division. See Act 17 of 2013,
P.L. 55, No. 17 (June 19, 2013). Thereafter, all Traffic Court
responsibilities were transferred to the Municipal Court. See Pa.
Const. Art. V, § 6(c) (“In the City of Philadelphia[,] there shall be
a municipal court. The number of judges and the jurisdiction shall
be as provided by law.”). The restructuring transferred
jurisdiction of all [VC] moving violations to the Municipal Court’s
new Traffic Division, which was overseen by the [Court of
Common Pleas’] administrative judge for reforming the operations
of the former traffic court. On April 26, 2016, the Pennsylvania
Constitution was amended to fully eliminate the Philadelphia
Traffic Court.
Like the Traffic Court, the newly-established Traffic Division of the
Municipal Court also has jurisdiction over prosecutions for VC
summary offenses and ordinances. See 42 Pa.C.S. § 1123(a)(9).
However, unlike the Municipal Court that existed before the 2013
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restructuring, the General Division of the Municipal Court
exercises “full jurisdiction [] of the [M]unicipal [C]ourt under
[section 1123(a),]” which includes those summary offenses under
the jurisdiction of the Traffic Division. [See Perfetto, 207 A.3d
at 823.] Therefore, while the Traffic Division’s jurisdiction is
limited to those offenses outlined in section 1123(a)(9), the
prosecution of those offenses is not exclusive to that division, as
they are able to be prosecuted in the General Division of the
Municipal Court.
Atkinson II, 2021 PA Super 208, at *1-*2 (footnotes omitted; emphasis in
original). In addition, at all times relevant to this appeal, the Municipal Court
has had exclusive jurisdiction over criminal trials in Philadelphia where only
misdemeanor offenses are charged. See 42 Pa.C.S. § 1123(a)(2), (b); 18
Pa.C.S. § 1104; Pa.R.Crim.P. 1001(A). On the other hand, the Court of
Common Pleas of Philadelphia County has exclusive jurisdiction over felony
trials, as well as cases in which a defendant is jointly tried on both
misdemeanor and felonies charges. See 42 Pa.C.S. § 931(a); Pa.R.Crim.P.
1001(A).
After reviewing the Supreme Court’s Johnson and Perfetto decisions—
each of which involved prosecutions subsequent to the abolition of
Philadelphia Traffic Court—the Atkinson II Court held that
the principles of compulsory joinder, as espoused in section 110
and the holdings of Johnson and Perfetto, are inapplicable to
the facts of the instant case, and, thus, the Commonwealth is not
prevented from proceeding with prosecution of Atkinson’s DUI
offense.
Atkinson II, 2021 PA Super 208, at *6. This Court explained that, while
Johnson and Perfetto require that “known offenses are consolidated at the
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common pleas [or Municipal Court] level,” it was “simply impossible” to
consolidate Atkinson’s summary and DUI offenses “in any Philadelphia court
[] at the time she was tried for her VC violation.” Id. at *7 (quoting Johnson,
247 A.3d at 987) (some emphasis omitted).
In March 2013, when Atkinson was prosecuted and found guilty of
her summary offense, neither the Traffic Division nor the General
Division of the Municipal Court existed. Indeed, at the time she
was tried for her VC violation, the Traffic Court had exclusive
jurisdiction over summary VC violations and Atkinson’s VC offense
could not be tried in either of the other two courts—the
Philadelphia Municipal Court or the Philadelphia Court of Common
Pleas. In other words, there was no other court in which
Atkinson’s summary traffic offense could have been brought and
joined with her DUI.
Id. (citations omitted; emphasis in original).
The Atkinson II Court continued:
[T]he difference between limited jurisdiction (like that of the
Traffic Division of the Municipal Court) and exclusive jurisdiction
(like that of the Philadelphia Traffic Court) over summary traffic
offenses is critical to the disposition of the instant case. Although
in Johnson, Perfetto, and the current case, the courts that tried
the defendants on their summary traffic violations lacked
jurisdiction over the remaining greater offenses (PWID and DUI,
respectively), this fact alone is not dispositive of whether the
compulsory joinder rule applies. Rather, the fact that Johnson’s
and Perfetto’s summary VC violations could have been joined,
respectively, in the common pleas court (with the PWID
charge) and the General Division of the Municipal Court (with
the DUI offenses) is what drives the decision to apply compulsory
joinder principles to those cases. Here, the Pennsylvania
Constitution and Judicial Code prohibited Atkinson’s summary VC
offense from being brought and tried in any other court other
than the then-extant Philadelphia Traffic Court. Thus, this case is
not subject to compulsory joinder for the simple fact that the
charges are incapable of being joined due to the jurisdictional
exclusivity of the Traffic Court.
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Id. at *8 (citations omitted; emphasis in original). Therefore, the Court in
Atkinson II concluded that “neither Johnson, Perfetto, nor the compulsory
joinder rules apply to mandate dismissal” and affirmed the Court of Common
Pleas’ denial of Atkinson’s motion to dismiss. Id. at *9.
In the present case, the Commonwealth was similarly precluded from
trying Appellee’s summary VC offenses with the felony fleeing or attempting
to elude police and misdemeanor REAP charges arising out of the same
November 28, 2011 incident. At the time of Appellant’s summary trial on
February 23, 2012, the Philadelphia Traffic Court had exclusive jurisdiction
over all VC summary offenses committed in Philadelphia. See 42 Pa.C.S. §
1302(a), (b) (effective January 31, 2005 to June 18, 2013); Atkinson II,
2021 PA Super 208, at *1, *7. Furthermore, Philadelphia Traffic Court’s
jurisdiction did not extend to trials of either misdemeanor or felony offenses.
See 42 Pa.C.S. § 1302(a), (b) (effective January 31, 2005 to June 18, 2013);
42 Pa.C.S. § 1123(a)(1) (effective January 24, 2011 to June 18, 2013);
Atkinson II, 2021 PA Super 208, at *7. Therefore, consolidation of
Appellee’s summary offenses with his misdemeanor and felony charges “in
any Philadelphia court was simply impossible at the time [he] was tried for
[his] VC violation.” Atkinson II, 2021 PA Super 208, at *7.3
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3As explained above, Appellee’s misdemeanor and felony charges could only
be tried together in the Court of Common Pleas. See 42 Pa.C.S. § 931(a);
Pa.R.Crim.P. 1001(A). Even if the Commonwealth had decided to proceed
solely on the misdemeanor charges in Municipal Court or on the felony charge
(Footnote Continued Next Page)
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Accordingly, pursuant to Atkinson II, “the principles of compulsory
joinder, as espoused in section 110 and the holdings of Johnson and
Perfetto, are inapplicable to the facts of the instant case, and, thus, the
Commonwealth is not prevented from proceeding with prosecution of”
Appellee’s misdemeanor and felony charges. Atkinson II, 2021 PA Super
208, at *6. The Court of Common Pleas thus erred in dismissing Appellee’s
fleeing or attempting to elude police officer and REAP charges.
Order reversed. Case remanded. Jurisdiction relinquished.
President Judge Panella joins this memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2021
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in the Court of Common Pleas, however, it would have been barred from
consolidating the summary VC offenses with the proceedings in either of those
courts at the time of the adjudication of Appellee’s summary VC offenses. See
Atkinson II, 2021 PA Super 208, at *7; see also 42 Pa.C.S. § 931(a);42
Pa.C.S. § 1302(a), (b) (effective January 31, 2005 to June 18, 2013); 42
Pa.C.S. § 1123(a)(1) (effective January 24, 2011 to June 18, 2013).
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