J-S04025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT DERWIN SCOTT :
:
Appellant : No. 139 EDA 2015
Appeal from the Order Entered December 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011581-2014
BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 28, 2017
Robert Derwin Scott brings this appeal from the order entered on
December 29, 2014, in the Court of Common Pleas of Philadelphia County,
denying his motion to dismiss charges pursuant to 18 Pa.C.S. § 110, regarding
compulsory joinder. This matter is one of a number of appeals all addressing
this same issue, specifically, whether the Philadelphia County practice of trying
traffic citations separately from driving under the influence (DUI) charges
violates section 110 regarding compulsory joinder, and therefore violates a
defendant’s rights against double jeopardy.1 This issue has been recently
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Former Justice specially assigned to the Superior Court.
1The underlying facts of this matter are briefly related. On August 21, 2014,
Scott was issued a traffic citation for violating 75 Pa.C.S. § 1501(a), driving
without a license. He was taken into custody and, on August 22, 2014, he
was formally charged with driving while under the influence of alcohol or drugs
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decided by an en banc panel of our court in Commonwealth v. Perfetto,
____ A.3d ____, 2017 PA Super 281 (Pa. Super. August 30, 2017) (en banc).2
However, pursuant to Commonwealth v. Diggs, ____ A.3d ____, 2017 PA
Super 331 (October 19, 2017), Pa.R.Crim.P. 587 is now applicable to motions
to dismiss pursuant to section 110. Rule 587 sets forth a number of
requirements for the trial court to follow. Ultimately, if the trial court
determines the double jeopardy challenge is non-frivolous, the order denying
the defendant relief becomes an immediately appealable collateral order. See
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(DUI), driving with a suspended license and having alcohol in a motor vehicle.
However, on October 17, 2014 the Commonwealth issued a Bill of Information,
ultimately charging Scott with DUI-general impairment, DUI-highest rate of
alcohol, driving with a suspended or revoked license with a blood alcohol level
of .02 or greater, driving without a license, driving while license is suspended
or revoked, and possession of open alcoholic container while vehicle is on a
highway. The first three charges are misdemeanors; the last three are
summary traffic offenses. On October 23, 2014, Scott was tried in the
Philadelphia Municipal Court Traffic Division, in absentia, only on the initial
traffic citation, driving without a license.
After Scott was found guilty of the single traffic citation, the
Commonwealth continued the prosecution against Scott in the Court of
Common Pleas regarding the remaining charges. On December 29, 2014,
Scott filed a motion to dismiss, claiming all charges arose from the same
criminal episode. He asserted that, pursuant to 18 Pa.C.S. § 110, and the
double jeopardy clauses of both the United States and Pennsylvania
Constitutions, all charges were required to be tried against him in the same
trial. On the same day the motion was filed, the trial court held a hearing on
the motion and then denied it. This timely appeal followed.
2Perfetto determined this procedure does not violate double jeopardy. A
petition for allowance of appeal of Perfetto has been filed with our Supreme
Court.
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Pa.R.Crim.P. 587(B)(6). Because the trial court in this matter did not apply
Rule 587 to its order, we are required to remand this matter to the trial court
such compliance.3
Specifically, Diggs stated:
To establish whether a motion to dismiss on double jeopardy
grounds qualifies as a collateral order, trial courts must now,
inter alia, satisfy [Pa.R.Crim.P] Rule 587(B)(3), (4), (5), and
(6). Subsection (B)(3) requires the trial court, following a
hearing, to enter on the record a statement of findings of
fact and conclusions of law and its disposition of the double
jeopardy motion. Subsection (B)(4) requires the trial court
to render a specific finding on frivolousness in the event the
court denies the double jeopardy motion. Subsection (B)(5)
requires the trial court, if it finds frivolous the double
jeopardy motion, to inform on the record a defendant of his
or her right to petition for review under Pa.R.A.P. 1573
within 30 days of the order denying the motion. Subsection
(B)(6) requires the court to advise a defendant of his
immediate right to a collateral appeal if the court does not
find the double jeopardy motion to be frivolous.
Commonwealth v. Diggs, supra, at *4-5 (citation omitted).
Following said compliance, the trial court shall prepare a supplemental
Rule 1925(a) opinion detailing its findings.
Case remanded for proceedings consistent with this decision. Panel
jurisdiction retained.
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3 The purpose of Rule 587 is to determine whether the double jeopardy motion
is frivolous. Because there remains the possibility that our Supreme Court
will disagree with Perfetto and find that the Philadelphia procedures do
violate 18 Pa.C.S § 110, it seems unlikely that the trial courts will fail to certify
the issue as non-frivolous; however we are constrained to follow Diggs.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2017
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