Com. v. Atkinson, D.

J-E03001-20

                                   

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAIYCHELLE ATKINSON                        :
                                               :
                       Appellant               :   No. 1562 EDA 2016

                     Appeal from the Order August 3, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): MC-51-CR-0001158-2013


BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,
        J., STABILE, J., NICHOLS, J., McLAUGHLIN, J., and KING, J.

OPINION BY LAZARUS, J.:                             FILED OCTOBER 19, 2021

       Daiychelle Atkinson appeals from the trial court’s order denying her

motion to dismiss1 based on the compulsory joinder principles of section 110

of the Crimes Code. See 18 Pa.C.S. § 110. This matter has been remanded

for a second time2 from the Supreme Court of Pennsylvania—which granted




____________________________________________


1 We note that because “the protection of the compulsory joinder of charges

statute is in the nature of protection against double jeopardy, an order
denying a motion to invoke that statute’s protection is . . . subject to
immediate appeal.” Commonwealth v. Barber, 

 (Pa.
Super. 2007) (citations omitted).

2 On June 27, 2019, the Supreme Court granted Atkinson’s petition for
permission to appeal, vacated this Court’s prior memorandum decision in
Commonwealth v. Atkinson, No. 1562 EDA 2016 (unpublished
memorandum decision) (filed Sept. 29, 2017), and remanded the matter for
consideration “in light of [its] decision in Commonwealth v. Perfetto, [

 (Pa. 2019)].” See infra at 10.
J-E03001-20



Atkinson’s petition for allowance of appeal and vacated our prior decision 3—

instructing us to reconsider the case “in light of Commonwealth v. Johnson,

[247] A.3d [981] (Pa. filed Mar. 25, 2021).”4 Because at the time Atkinson

was found guilty of her summary traffic violation in the now-eliminated sui

generis Traffic Court of Philadelphia, it was statutorily impossible for the

Commonwealth to consolidate both of Atkinson’s offenses for prosecution, we

find that compulsory joinder principles do not apply to the instant matter, and,

therefore, affirm.5

       Before recounting the specific factual and procedural history of

Atkinson’s case, a brief primer on the establishment and purpose of the Traffic

Court of Philadelphia, where Atkinson’s summary offense was prosecuted, is

necessary to set the stage for this appeal. 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.6
____________________________________________


3 Commonwealth v. Atkinson, 

 (Pa. Super. 2021) (en banc).


4 Per Curiam Order, 91 EAL 2021, 3/25/21.


5This case brings to mind a familiar quote from one of the great works of
American theater, Fiddler on the Roof —“A bird may love a fish but where
would they build a home together?”

6 At the time Atkinson was adjudicated for her summary offense, the Municipal

Court and Traffic Court of Philadelphia were designated as separate “Minor
Courts” in this Commonwealth. See Act 1997-2 (S.B. 178), P.L. 3, § 1,
approved Feb. 14, 1997, eff. Jan. 5, 1998 (former section 1121 designating
Philadelphia Municipal Court and former section 1321 designating Traffic Court
of Philadelphia).   The Philadelphia Municipal Court was its own entity
(Footnote Continued Next Page)


                                           -2-
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The Philadelphia Traffic Court was granted exclusive jurisdiction over all

prosecutions for summary offenses arising under the Pennsylvania Vehicle

Code (VC)7 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).

       The Traffic Court was comprised of six publicly-elected judges who

served six-year terms.8          The president judge of the Traffic Court was

appointed by the governor and was responsible for the administration of the

court’s activities. The court’s primary function was to adjudicate all traffic

violations, with an ancillary function of collecting and remitting to the City and

State all fines and costs resulting from adjudicating those violations.

       On June 19, 2013, the Traffic Court of Philadelphia was effectively

abolished when the General Assembly restructured the Philadelphia Municipal
____________________________________________


(Subchapter B under Chapter 11 of Article D of Subpart A of Part II of Title
42), while the Traffic Court of Philadelphia was its own entity under
Subchapter B of Chapter 13, Traffic Courts.

7   See 75 Pa.C.S. § 101, et seq.

8  See https://www.phila.gov/phils/Docs/Inventor/graphics/agencies/A029
(last visited 9/16/21).

                                           -3-
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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 Vehicle

Code moving violations to the Municipal Court’s new Traffic Division, which

was overseen by the trial court’s 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. 9

       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 restructuring, the General

Division of the Municipal Court exercises “full jurisdiction over of the

[M]unicipal [C]ourt under section 1123(a)[,]” which includes those summary
____________________________________________


9 In September 2011, FBI agents began an investigation, raiding the homes

and offices of several traffic court officials, and prompting then- Pennsylvania
Supreme Court Chief Justice Ronald D. Castille to hire a consulting firm to
launch a probe. Ultimately, the firm reported that several traffic court judges
were complicit with systematic special treatment for the politically connected,
leading to tickets being “fixed.” Governor Tom Corbett signed Senate Bill 334,
eliminating Philadelphia’s Traffic Court, into law in June of 2013,
acknowledging that “the only way to end the pervasive corruption in the Traffic
Court                was                 to              abolish             it.”
https://www.prisonlegalnews.org/news/2015/apr/8/philadelphia-trafficcourt-abolished-seven-judges-convicted/ (last visited 9/15/21).


                                           -4-
J-E03001-20



offenses under the jurisdiction of the Traffic Division.10 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.       Additionally, the jurisdiction of the Municipal Court is

“concurrent with the Court of Common Pleas of Philadelphia County, except

with respect to matters specified in subsection (a)(2).”11       See id. at §

1132(a)(2). Therefore, the Court of Common Pleas of Philadelphia County

also has jurisdiction to hear those summary offenses that are within the

limited jurisdiction of the Traffic Division.

       Having set the stage with a general understanding of the court system

in Philadelphia before and after its June 2013 restructuring, we may now turn

to the relevant facts underlying Atkinson’s appeal.

       On January 8, 2013, Atkinson was arrested and charged with driving

under the influence (DUI), 75 Pa.C.S. § 3802(a)(1), as well as a violation of

the VC for disregarding a traffic device, 75 Pa.C.S. § 3111(a). On March 13,

2013, Atkinson was found guilty in the now-eliminated Traffic Court of

Philadelphia of the offense of disregarding a traffic device. No appeal was

filed. The Commonwealth continued its prosecution of the DUI offense in the

____________________________________________


10 See Perfetto, 

; Johnson, 247 A.3d at 987 n.9.


11 Subsection 1123(a)(2) includes criminal offenses punishable by a term of

imprisonment of no more than five years. See 42 Pa.C.S. § 1123(a)(2).


                                           -5-
J-E03001-20



Criminal Trial Division of the Philadelphia Municipal Court. On August 3, 2015,

Atkinson filed a motion to dismiss the DUI offense, in the Municipal Court,

pursuant to section 110, the compulsory joinder statute. The Municipal Court

denied Atkinson’s motion to dismiss.

       Atkinson filed an interlocutory appeal from that order to the Philadelphia

Court of Common Pleas by means of a petition for writ of certiorari.          On

October 23, 2015, the trial court denied the petition, affirming the Municipal

Court’s denial of Atkinson’s motion to dismiss after concluding that section

110 was inapplicable to the case because, at the time Atkinson’s traffic citation

was issued, no single court had jurisdiction over both the citation and the DUI

charge. On November 23, 2015, Atkinson filed a timely notice of appeal to

this Court. On September 29, 2017, our Court affirmed the trial court’s order

denying Atkinson’s motion to dismiss. On June 27, 2019, the Pennsylvania

Supreme Court granted Atkinson’s petition for allowance of appeal, vacated

our September 29, 2017 unpublished memorandum and order, and remanded

the matter to be considered in light of Perfetto, supra.12 See supra, at n.2.
____________________________________________


12 In Perfetto, the defendant was cited for a summary offense and also
charged with three counts of DUI on July 3, 2014. Perfetto, 

.
A hearing officer in the Traffic Division of the Philadelphia Municipal Court
found the defendant guilty of the summary offense on September 4, 2014.

 After a preliminary hearing, the defendant’s DUI charges were bound over
for trial. 

 Defendant filed a motion to dismiss, invoking subsection
110(1)(ii)—the compulsory joinder statute. 

 The trial court granted the
motion and dismissed the defendant’s DUI charges. 

 The Commonwealth
appealed and a divided en banc panel of our Court reversed the trial court,
concluding that the defendant’s summary traffic offense could only be tried in
(Footnote Continued Next Page)


                                           -6-
J-E03001-20



       On remand, a three-judge panel of this Court again affirmed the trial

court’s order denying Atkinson’s section 110 motion. See Commonwealth

v. Atkinson, 

 (Pa. Super. filed Sept. 4, 2019) (unpublished

memorandum decision). However, that panel decision was later withdrawn

after our Court granted en banc reargument on November 15, 2019. The

parties filed new briefs. On reargument, our full Court unanimously affirmed

the trial court’s order denying Atkinson’s motion to dismiss the DUI

prosecution, noting that “unlike Perfetto, at the time Atkinson was

prosecuted and found guilty of her summary offense, neither the Traffic

Division nor the General Division of the Municipal Court existed,” as the former

Philadelphia Traffic Court was a separate entity to Municipal Court.

Commonwealth v. Atkinson, 

 (Pa. Super. filed Feb. 8, 2021)

(en banc).


____________________________________________


the Traffic Division of the Municipal Court and, thus, the defendant’s
subsequent prosecution for his DUI charges did not run afoul of the
compulsory joinder rule. See Commonwealth v. Perfetto, 

(Pa. Super. 2017) (en banc). The defendant filed a petition for allowance of
appeal, which our Supreme Court granted. On appeal, the Supreme Court
reversed our Court’s en banc decision, noting that while the Traffic Division of
the Philadelphia Municipal Court has limited jurisdiction to “consider only
summary traffic offenses,” the General Division of the Municipal Court “clearly
and unambiguously . . . has jurisdiction to adjudicate any matter that is
properly before [it, including both summary and misdemeanor offenses].”
Perfetto, 

. Thus, the Court concluded that “a straightforward
application of the plain language of [s]ubsection 110(1)(ii) of the compulsory
joinder statute to the circumstances presented in this appeal makes clear
that the Commonwealth is precluded from prosecuting the [Appellant] for his
DUI charges.” 

. (emphasis added).


                                           -7-
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       On March 10, 2021, Atkinson filed a petition for allowance of appeal in

the Pennsylvania Supreme Court asserting that this Court’s en banc decision

misapplied section 112 of the compulsory joinder rule, such that it conflicts

with one of its own prior published decisions, as well as a holding from the

Supreme Court. On April 23, 2021, the Supreme Court granted Atkinson’s

petition, vacated our Court’s en banc decision, and remanded the case to this

Court “for reconsideration in light of Commonwealth v. Johnson, [247] A.3d

[981] (Pa. [] 2021).” Order, 4/23/21. We ordered the parties to re-brief the

issue on remand.13 On July 30, 2021, the parties agreed to have the matter

submitted on briefs. See Per Curiam Order, 7/30/21.

       On appeal, Atkinson claims that section 110(1)(ii) of the compulsory

joinder rule “mandates dismissal [of her DUI charge] where all four criteria

____________________________________________


13 Specifically, we directed the parties to:



       [A]ddress the issue of whether Appellant’s DUI offense should be
       dismissed, due to the Commonwealth’s failure to bring all charges
       within a single proceeding pursuant to 18 Pa.C.S. [§§] 110 and
       112(1), where at the time Appellant was charged and convicted
       of the summary offense of disregarding a traffic device in the now-eliminated Traffic Court of Philadelphia, the General Assembly
       had not yet created either the Traffic Division of the Municipal
       Court or the General Division of the Municipal Court. See
       42 Pa.C.S. § 1123(a)(1) (effective January 24, 2011 to June 18,
       2013) (Municipal Court had jurisdiction over “[s]ummary offenses,
       except those within the jurisdiction of the Traffic Court of
       Philadelphia”) and [id.] at § 1302 (effective January 31,
       2005 to June 18, 2013[,] Traffic Court’s jurisdiction did not
       extend to trial of either misdemeanor or felony offenses).
Per Curiam Order, 5/28/21 (emphasis in original).


                                           -8-
J-E03001-20



are met[,] even in cases where no single court has jurisdiction over both

offenses.” Appellant’s Brief After Remand, at 8. Atkinson also asserts that

“[t]he statutorily enumerated exceptions to [s]ection 110 (codified at

[section] 112) do not apply to this case,” id., where the former prosecution

(summary traffic offense) was before a court (the then-extant Traffic Court of

Philadelphia) which properly had jurisdiction over summary traffic offenses.

Id. at 17.

      Our standard of review of issues concerning the compulsory joinder

statute, 18 Pa.C.S. § 110, is plenary. Commonwealth v. Reid, 

 (Pa. Super. 2012). In Perfetto, supra, our Supreme Court recounted

the history of section 110, noting:

      This Court first announced the compulsory joinder rule in
      Commonwealth v. Campana, [] 

 (Pa. 1973),
      vacated[,] 

 [] (1973), on remand, [] 

      (Pa. 1974). In short, the Campana Court held that “the Double
      Jeopardy Clause requires a prosecutor to bring, in a single
      proceeding, all known charges against a defendant arising
      from a ‘single criminal episode.’” Campana, 304 A.2d at 441
      (footnote omitted).

      The Legislature subsequently codified this rule in the Crimes Code
      at 18 Pa.C.S. § 110.

Perfetto, 

 (emphasis added).     It is well-established that the

rule of compulsory joinder

      was intended both to protect a person accused of crimes from
      governmental harassment by forcing him to undergo successive
      trials for offenses stemming from the same event, and also, as a
      matter of judicial administration and economy, to assure finality
      without unduly burdening the judicial process by repetitious
      litigation. The new approach was to thus serve both individual
      and societal interests. The rule was not intended to intrude

                                      -9-
J-E03001-20


       upon situations where there is legitimate reason for
       separate disposition.

Commonwealth v. Tarver, 

 (Pa. 1976) (citations omitted;

emphasis added).       See also Commonwealth v. Fithian, 

, 75-

76 (Pa. 2008).

       The compulsory joinder statute, section 110, states, in relevant part:

       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:

                                               …

              (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 amended 2002). However, pursuant to 18 Pa.C.S.

§ 112(1), a “prosecution is not a bar within the meaning of section 109 of this

title . . . through section 111 of this title . . . [if t]he former prosecution was

before a court which lacked jurisdiction over the defendant or the offense.”

18 Pa.C.S. § 112(1).14

____________________________________________


14 In 2002, the legislature amended section 110(1)(ii) to remove the statute’s

prior language “within the jurisdiction of a single court” and replaced it with
“occurred within the same judicial district as the former prosecution.” See
Act of June 28, 2002, P.L. 481, No. 81, §1. In Commonwealth v. Fithian,
(Footnote Continued Next Page)


                                          - 10 -
J-E03001-20



       The Supreme Court has directed us to reconsider Atkinson’s appeal in

light of its recent decision, Commonwealth v. Johnson, 

 (Pa.

2021). In Johnson, our Supreme Court held that the phrase “the offense” in
____________________________________________

 (Pa. 2008), our Supreme Court squarely addressed the
legislature’s intent in amending the language of section 110(1)(ii), stating:

       Focusing on the specific phrase at issue[,] . . . it is apparent that
       the purpose of this language is to place some boundaries on the
       breadth of the offenses subject to compulsory joinder, that is, only
       those occurring “within the same judicial district” as a former
       prosecution. Indeed, the structure of the compulsory joinder
       statute precludes certain prosecutions only if they satisfy this
       requirement, as well as the other requirements, of [s]ection
       110(1)(ii).

. In coming to this conclusion, the Court noted that historically,
“the Superior Court consistently interpreted th[e pre-amendment] language[,
“‘all charges were within the jurisdiction of a single court,’”] as meaning the
charges that required joinder were circumscribed by county territorial
boundaries.” 

 The Court cites examples of such instances where the pre-
2002 language was applied in exactly that manner. See Commonwealth v.
Cromwell, 

 (Pa. Super. 1984) (burglaries committed in
Somerset and Bedford Counties, that were part of same criminal episode, need
not be consolidated for trial in Somerset County); Commonwealth v.
Nichelson, 

 (Pa. Super. 1982) (offenses occurring in Chester
County not barred from prosecution by prior convictions in Philadelphia
County); Commonwealth v. Harris, 

 (Pa. Super. 1980)
(prosecution in Montgomery County not barred by prior convictions in
Philadelphia County). The Fithian Court noted because “the courts of
common pleas enjoy jurisdiction all over the Commonwealth – that is, the
subject matter jurisdiction of the courts of common pleas is general and not
limited to the territory of the county where the court sits[, a]s a practical
matter, the Court’s interpretation . . . led to the ‘jurisdiction’ prong of [s]ection
110(1)(ii) being met in every case.” Thus, the [l]egislature’s amendment of
section 110(1)(ii) was “clear[ly] . . . intended to incorporate, or perhaps reincorporate, a geographic component in determining which offenses are
precluded because of a former prosecution. That is, the legislature intended
the compulsory joinder statute be limited to mandating joinder only of those
offenses occurring in a single judicial district.” Id. at 76-77.


                                          - 11 -
J-E03001-20



section 112(1) means the offense that was the subject of the initial

prosecution resulting in a conviction or acquittal, not the offense that the

Commonwealth subsequently seeks to prosecute.          Id.   In that case, the

defendant was charged in 2015 with the summary offense of driving with a

suspended license, as well as possession with the intent to deliver heroin

(PWID) and knowing and intentional possession of heroin (K&I). Id. at 982.

Johnson was found guilty, in absentia, of the summary traffic offense in the

Traffic Division of the Municipal Court of Philadelphia. Id. Subsequent to that

determination, Johnson filed a motion to dismiss contending that, pursuant to

the compulsory joinder rule, the prosecution was required to try all of the

offenses simultaneously. Id.

      On interlocutory appeal, the Commonwealth conceded that the K&I

offense fell within the Municipal Court’s jurisdiction, and, thus, it was

foreclosed from pursuing that charge based upon the holding of Perfetto. Id.

However, the Commonwealth contended that the PWID charge remained

viable for prosecution because the Municipal Court lacked jurisdiction over that

offense and, under section 112(1), it was not compelled to join that offense

with the summary offense. Id. at 982-83. Specifically, the Commonwealth

argued that “the offense” language in section 112(1) “concerns the crime or

crimes for which the government is seeking subsequent convictions.” Id. at

983. The Superior Court agreed with the Commonwealth, holding that for

purposes of section 112(1), “the offense” referred to Johnson’s PWID charge,




                                     - 12 -
J-E03001-20



and thus, prosecution on that crime could proceed.           Id. at 989.     See

Commonwealth v. Johnson, 

 (Pa. Super. 2019).

      The Supreme Court granted Johnson’s petition for allowance of appeal

to review our Court’s interpretation of section 112(1), an exception to the

compulsory joinder rule. Discussing the evolution of case law with regard to

application of the compulsory joinder rule, the Court noted that the rule was

mandated under the Court’s “supervisory powers,” 

 247 A.3d at 983, that

the statutory scheme of compulsory joinder was derived from principles of the

Model Penal Code, id., and that the Justices’ “intent was generally to require

summary and greater offenses arising out of single criminal episodes to be

consolidated in the common pleas courts.”         Id. at 984.    Ultimately, the

Johnson Court held that the Commonwealth was to “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 (emphasis added).

      The Johnson Court noted that although the defendant’s greater offense

(PWID) could not be tried in the first court where Johnson’s summary was

tried (the Traffic Division of the Municipal Court of Philadelphia), it could have

been consolidated with the summary offense in the court of common pleas.

Specifically, because the Municipal Court lacked jurisdiction over Johnson’s

PWID offense, where that court’s jurisdiction is capped at criminal offenses

punishable by imprisonment by a term of not more than five years, see 42

Pa.C.S. § 1123(a)(2), the Commonwealth could have prosecuted the charges

                                      - 13 -
J-E03001-20



(summary and PWID) against Johnson in a “single proceeding” within the

same judicial district, in the common pleas court which had “unlimited original

jurisdiction in all cases except as may otherwise be provided by law.” Pa.

Const., art. V, § 5(b)).

       For the reasons that follow, we conclude 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.

       In Johnson, our Supreme Court held that “the Commonwealth must

generally assure that known offenses are consolidated at the common

pleas level, when they arise out of single criminal episode and occur in the

same judicial district.” Id., 247 A.3d at 987 (emphasis added).15 Similarly,

in Perfetto, the Court concluded that the Commonwealth was precluded from

____________________________________________


15 In a recent per curiam order, the Supreme Court specifically stated that
Johnson held “that the Commonwealth must generally assure that known
offenses are consolidated at the common pleas level, when they arise out of
single criminal episode and occur in the same judicial district.”
Commonwealth v. Tinsley, 

 (per curiam order) (Pa. filed May
13, 2021). Interestingly, in that same order, the Supreme Court not only
granted the defendant’s petition for allowance of appeal and vacated our
Court’s order affirming the trial court’s order denying the defendant’s motion
to dismiss based on section 110, but it also remanded the matter to the
Superior Court for remand to trial court “with instructions to grant Petitioner’s
motion to dismiss the pending firearms charges[.]” 

 This is the first time
that the Supreme Court has directed that charges be dismissed, on remand,
pursuant to section 110, following its decision in Johnson. The Tinsley order
also was handed down almost one month after the Court’s per curiam remand
order in the instant case.

                                          - 14 -
J-E03001-20



prosecuting the defendant for his pending DUI charges under section

110(1)(ii), where all of the defendant’s offenses could have been adjudicated

in the General Division of the Municipal Court. Perfetto, 

.

Unlike those cases, consolidation of Atkinson’s offenses (summary and DUI)

in any Philadelphia court was simply impossible at the time she was tried for

her VC violation.

      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. Cf. 

 Perfetto, supra. 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. See 42 Pa.C.S. § 1302 (effective

Jan. 31, 2005 to June 18, 2013, Traffic Court’s jurisdiction did not extend to

either misdemeanor or felony offenses) (emphasis added); see also id. at §

1123(a)(1) (effective Jan. 24, 2001 to June 18, 2013, Municipal Court had

jurisdiction   over   “[s]ummary   offenses,   except   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). In other

words, there was no other court in which Atkinson’s summary traffic offense

could have been brought and joined with her DUI. Compare 

at 987 n.9 (suggesting that summary traffic offenses and other crimes “over

                                    - 15 -
J-E03001-20



which the Municipal Court has jurisdiction,” such as in Perfetto, could be

consolidated in General Division of Municipal Court) with Commonwealth v.

Masterson, 

 (Pa. Super. 1980) (where “no one court in

Philadelphia initially had jurisdiction over both classes of defendant’s crimes”—

summary traffic violation and misdemeanors—“separate prosecution for these

offenses d[oes] not violate [the defendant’s] statutory right to compulsory

joinder under [s]ection 110 of the Crimes Code”) 16




____________________________________________


16 We recognize that unlike the instant case, Masterson was decided prior to

the 2002 amendment to section 110(1)(ii), when the statute still included the
language “was within the jurisdiction of a single court.” Despite this factual
distinction, which admittedly is significant when analyzing cases that implicate
the compulsory joinder rule, the Masterson Court’s analysis involved a
detailed discussion of “the Pennsylvania Constitution, the relevant statutes,
[and] scant case law on the point,” 

, in arriving at its conclusion that
“separate prosecutions for the[] offenses did not violate appellant’s statutory
right to compulsory joinder of the offenses under section 110 of the Crimes
Code.” 

 Significantly, the Masterson Court, citing to statutes and the
Pennsylvania Constitution, recognized that “the Philadelphia Traffic Court
could not have tried appellant for both the summary offense and the
misdemeanors . . . and appellant could not have been tried on both
offenses in Municipal Court[.]” 

 (emphasis added). See also 

 (“Traffic Court does not have jurisdiction over crimes other than
summary offenses” and “Municipal Court does not have jurisdiction of
summary offenses”). Moreover, further reference to the Judicial Code and our
state constitution led the Court to conclude that the appellant’s “summary
offense . . . could not have been filed initially in the Court of Common Pleas.”

. Finally, the Court definitively stated that “when the various
statutory and constitutional provisions pertaining to Common Pleas[,]
Municipal, and Traffic Court are read together, Traffic Court’s
jurisdiction of summary motor vehicle offenses is necessarily
exclusive.” 

 (emphasis added).


                                          - 16 -
J-E03001-20



       Here, the difference between limited jurisdiction (like that of the Traffic

Division of the Municipal Court) and exclusive jurisdiction17 (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. See Pa. Const. Art. V, §§ 1, 6(c) (as amended in 1968); 42 Pa.C.S. §

1302. 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




____________________________________________


17 Subject matter jurisdiction relates to the competency of a court to hear and

decide the type of controversy presented. Commonwealth v. Bethea, 

 (Pa. 2003) (citation omitted). Jurisdiction is a matter of
substantive law. 

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exclusivity of the Traffic Court.18        See 

 (noting

because clear division of jurisdiction of various courts of Philadelphia County

contained in state’s constitution and statutes prevented Commonwealth from

filing both summary and misdemeanor charges in single court, section 110 did

not bar subsequent prosecution for misdemeanor charges following acquittal

for summary offense).

       The unintended consequence of applying section 110 to facts like those

present in the instant case, where the offenses are incapable of joinder, would

be to require the Commonwealth to choose between which offense to

prosecute (summary or misdemeanor/felony) in a given case.19 This is clearly

not the intended result of the compulsory joinder rule or the Supreme Court’s




____________________________________________


18 The very term “compulsory joinder” implies compelling the prosecution to

join offenses. Logically, if offenses are not able to be joined, then the
Commonwealth cannot be compelled to do something it is incapable of doing.
See 1 Pa.C.S. § 1922(1) (Presumptions in ascertaining legislative intent—
“[T]he General Assembly does not intend a result that is absurd, impossible
of execution[,] or unreasonable.”).

19 This fact, however, is not the reason that drives our decision today.We
fully understand the rationale for dismissing subsequent charge(s) when the
Commonwealth could “bring, in a single proceeding, all known charges
against a defendant[.]” Perfetto, 

, citing Campana, 304
A.2d at 441 (emphasis added). In the former situation, the Commonwealth
has no ability to join the offenses. In the latter scenario, where the
Commonwealth has the ability to join the offenses, but either intentionally
or mistakenly fails to do so, it should be precluded from prosecuting the
subsequent offense, no matter how serious. Cf. 

(Baer, J., dissenting).


                                          - 18 -
J-E03001-20



holdings in Johnson or Perfetto.20 Therefore, where our state constitution

and statutes in effect at the time Atkinson was adjudicated prohibited the

Commonwealth from bringing her summary traffic offense in any court other

than the Traffic Court and, thus, made joinder of her offenses an impossibility,

the compulsory joinder rule is simply not implicated.21     Joinder cannot be




____________________________________________


20 In Perfetto, the Supreme Court was careful to limit its holding, stating that

based on “the circumstances presented in this appeal” and using “a
straightforward application of the statutes that directly apply to this case,
particularly 18 Pa.C.S. § 110(1)(ii),” the Commonwealth was precluded from
prosecuting the defendant on his DUI charges. 

(emphasis added). Thus, while the Court acknowledged that “[s]ubsection
110(1)(ii) of the compulsory joinder statute clearly and unambiguously
contains four primary elements, which, if met, preclude a prosecution due
to a former prosecution, it focused specifically on “the facts of this case” to
see whether the four prongs were met. 

 (emphasis added).

21 This case falls within a narrow group of cases that are controlled by neither

Perfetto nor Johnson—where defendants are charged and found guilty of
summary vehicle code offenses in the Traffic Court of Philadelphia, prior to the
June 2013 restructuring of the Municipal Court, where other charges
(misdemeanor or felony) arising from the same criminal episode could not
have been brought in the Traffic Court, and where the traffic offense could not
have been bought in any other court in Philadelphia or even the
Commonwealth. In such cases, there is no risk that the Commonwealth could
“engage in a type of forum shopping by allowing [it] to pick and choose
whether it wants to adjudicate all of a Philadelphia defendant’s charges in one
forum with jurisdiction over all of the defendant’s charges . . . or split the
charges and adjudicate a summary offense first . . . and the remainder of the
charges later in another forum.” Perfetto, 

. Here, the
creation and jurisdiction of the courts, as prescribed by the state constitution
and Judicial Code, removed any prosecutorial discretion that the
Commonwealth would have had with regard to where it could try Atkinson’s
summary offense and DUI.


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J-E03001-20



compulsory where it is unachievable.22 

 (“The short

answer to appellant’s dilemma, however, is that section 110 does not bar all

double prosecutions but only those within its terms.”) (citation omitted).

       Accordingly, we conclude that the Commonwealth properly initiated

prosecution for Atkinson’s summary VC offense in the only court it could, the

Traffic Court of Philadelphia, where it had no ability to join the charged

offenses so that they could proceed in one prosecution. See Commonwealth

v. Gimbara, 

 (Pa. Super. 2003) (purpose of section 110 is to

protect defendants from harassment by multiple prosecutions and statute may

not be used to shield defendant from properly initiated prosecutions). Here,

where section 1302(b) required the Commonwealth to bring only summary

traffic offenses in the Traffic Court and nowhere else, and where the remaining

courts, the Municipal Court and Common Pleas Courts of Philadelphia, lacked

jurisdiction over the summary traffic offense, it had no prosecutorial discretion

to join her offenses and the failure to do so was not discretionary; thus, neither

Johnson, Perfetto, nor the compulsory joinder rules apply to mandate



____________________________________________


22 Our decision neither holds that “summary traffic offenses are not, as a rule,

subject to the compulsory joinder statute,” 

, nor suggests
that disposing of summary traffic offenses prior to misdemeanor or felonies
“does not present the type of governmental harassment . . . that would offend
double jeopardy concerns encapsulated in the compulsory joinder statute.”

. Rather, under facts such as in Johnson and Perfetto, where
the Commonwealth could join such offenses, section 110 is implicated and
serves its intended purposes.


                                          - 20 -
J-E03001-20



dismissal.23 Our decision today does not run afoul of the Supreme Court’s

holding in Perfetto, Johnson, or the compulsory joinder rule, where there

was a legitimate reason for separate disposition of Atkinson’s offenses.

 Thus, the trial court properly denied Atkinson’s motion to

dismiss. 

       Order affirmed.

       President Judge Panella, President Judge Emeritus Bender, Judge

Stabile, Judge Nichols, Judge McLaughlin and Judge King join this Opinion.

       Judge Olson files a Dissenting Opinion in which Judge Bowes joins.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2021


____________________________________________


23 While the jurisdictional language was removed from section 110 and is no

longer an element of compulsory joinder, this does not change our result today
where joinder cannot be compelled under these facts. Thus, we need not even
analyze the four factors found in section 110. Additionally, where the
principles of compulsory joinder are not invoked, we need not look to section
112 to determine whether an exception to the rule exists. Finally, a close
reading of 

 which squarely addressed the legislature’s intent
behind the amendment to section 110(1)(ii), makes it evident that the
statutory language was changed to no longer prevent successive prosecutions
in a multi-district scenario, not to apply section 110 to a case where a court
has exclusive jurisdiction over one offense and the Commonwealth is
incapable of trying all offenses together in a common court. See supra at
n.14.

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