J-S48010-20
2021 PA Super 8
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT BENNETT :
:
Appellant : No. 2621 EDA 2019
Appeal from the Order Dated August 26, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0001302-2019.
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
OPINION BY KUNSELMAN, J.: Filed: January 21, 2021
The Court of Common Pleas of Philadelphia County entered a pre-trial
order denying a motion to dismiss all charges against Vincent Bennett, and it
certified that order for interlocutory appeal.1 Bennett contends the trial court
should have barred the Commonwealth from prosecuting him for various gun-
related offenses,2 under the compulsory-joinder rule, 18 Pa.C.S.A. § 110. He
bases this theory on the fact that his lawyer pleaded guilty on his behalf in
the Municipal Court to a traffic ticket, without informing the district attorneys.3
____________________________________________
1 See Pennsylvania Rule of Appellate Procedure 1311.
2 Specifically, the Commonwealth has charged Bennett with possession of a
firearm by a person prohibited from doing so, 18 Pa.C.S.A. § 6105; carrying
without a license, 18 Pa.C.S.A. § 6106; and carrying a firearm on the streets
of Philadelphia, 18 Pa.C.S.A. § 6108.
3 75 Pa.C.S.A. §4525(e)(1), windshield obstruction, dark window tint.
J-S48010-20
Thus, Bennett seeks to trap the Commonwealth into dismissing his trial-court-
level felony and misdemeanor charges by paying a summary fine.
Our precedents prohibit such chicanery. The compulsory-joinder rule
only applies if a criminal defendant has faced a former prosecution. Because
that has yet to occur, we affirm and remand for Bennett to stand trial.
The trial court described the alleged facts of this case and its procedural
posture in its Rule 1925(a) Opinion as follows:
On February 5, 2019, [Bennett] was stopped by police
for driving with an illegal window tint. During the stop, it
was determined that [Bennett] was driving with a
suspended license, and a search of his vehicle yielded an
illegal firearm under the floor pad. [Bennett] was cited for
the traffic violations, and arrested for/charged with Persons
Not to Possess Firearms, Firearms Not to Be Carried without
a License, and Carrying Firearms on Public Streets in
Philadelphia. See N.T., 07/02/19, at 3-4.
On May 24, 2019, counsel for [Bennett] appeared in
traffic court (Philadelphia Municipal Court) on behalf of
[Bennett], to satisfy the two citations. [The Municipal Court
had not scheduled a hearing for Bennett, who remained in
the county jail, and defense counsel provided no notice to
the Commonwealth that he intended to appear and plead
that Bennett was guilty of the summary offense.] Counsel
paid the citation for the window tint, but was told that he
could not pay the citation for the suspended license,
because [Bennett] was not physically present. Several days
later, the Commonwealth withdrew the charges on the
suspended license. Id. at 4-5.
On June 24, 2019, [Bennett] filed a Motion to Dismiss
the VUFA charges in common pleas court pursuant to
Commonwealth v. Perfetto, 207 A.3d 812 (Pa. 2019).
The [trial court] took the matter under advisement, and on
August 9, 2019, entered an Order denying [Bennett’s]
Motion.
-2-
J-S48010-20
Trial Court Opinion, 1/21/20, at 1-2 (some citations and punctuation omitted).
This timely appeal followed.
Bennett raises two issues:
1. Whether the lower court erred in determining that the
Philadelphia Municipal Court - Traffic Division has sole
jurisdiction over summary traffic offenses even when
those charges are part of a single incident, which also
includes a misdemeanor and/or felony charges? Is
this decision in conflict with 18 Pa.C.S.A. §110, the
2002 amendment thereto removing jurisdiction as an
element of the offense, its constitutional
underpinnings, and the decision of the Supreme Court
in Commonwealth v. Perfetto, 207 A.3d 812 (Pa.
2019) and other cases from that Court?
2. Did the lower Court [err] in not dismissing the
misdemeanor charge, pursuant to Commonwealth
v. Johnson, 221 A.3d 217 (Pa. Super. 2019),
[reargument denied (Dec. 26, 2019), allowance of
appeal granted, 237 A.3d 962 (Pa. 2020)] which held
in a similar situation, that the misdemeanor charged
should have been dismissed pursuant to Perfetto?
Bennett’s Brief at 2.
In its Rule 1925(a) Opinion, the trial court relied upon the Johnson
decision, which this Court published after the trial court entered its appealed-
from order. Johnson held that Perfetto only applies “where the summary-
offense prosecution occurred before a [magisterial] court that also had
jurisdiction over the [other] charge[s].” Johnson, 221 A.3d at 221. Because
the Municipal Court of Philadelphia did not have subject-matter jurisdiction
over a felony charge that Johnson faced, we concluded that “Johnson's case
has not come before a court with jurisdiction over the possession-of-heroin-
-3-
J-S48010-20
with-intent-to-deliver offense. Simply stated, he has not yet been in jeopardy
for that offense, because the Philadelphia Municipal Court lacked jurisdiction
to adjudicate it.” Id. The drug-related offense could therefore proceed in the
court of common pleas, pursuant to 18 Pa.C.S.A. § 112.
Quoting extensively from Johnson, the trial court opined that Bennett’s
felony and misdemeanor charges are within its subject-matter jurisdiction,
and not the Municipal Court of Philadelphia. Hence, the common pleas court
found that 18 Pa.C.S.A. § 112 applies, rather than the compulsory-joinder rule
of 18 Pa.C.S.A. § 110.
In response, Bennett contends we erred in Johnson. He asks our panel
to certify his case for a Court en banc to reexamine Johnson. Alternatively,
Bennett argues that the trial court misapplied the portion of Johnson that he
thinks compels dismissal of the misdemeanor charge. Bennett argues that
that crime’s sentence was under the subject-matter-jurisdictional limit of the
Municipal Court; therefore, the Commonwealth had to prosecute him for that
offense in Municipal Court along with his tinted-windows offense.
The Commonwealth disagrees with the issues that Bennett has framed
and argued. In its view, instead of revisiting our recent decision in Johnson,
we should first consider whether the plain language of 18 Pa.C.S.A. § 110
applies to this case. The Commonwealth proposed that we consider whether:
the trial court properly [denied Bennett’s] motion to dismiss
all charges under the statutory, compulsory-joinder rule,
where this Court’s precedents deem his unilateral decision
to enter a guilty a plea to one of two summary traffic
-4-
J-S48010-20
offenses insufficient to invoke Section 110 to bar successive
prosecution . . . ?
Commonwealth’s Brief at 1.
Whether the trial court incorrectly declined to dismiss all charges under
the compulsory-joinder rule presents a pure question of law. “Consequently,
our scope of review is plenary, and our standard of review is de novo.”
Perfetto, 207 A.3d at 821.
Entitled “When Prosecution [Is] Barred by Former Prosecution for
Different Offense,” 18 Pa.C.S.A. § 110 provides 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 as defined in section 109 of this title (relating
to when prosecution barred by former prosecution for the
same offense) 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.A. § 110 (emphasis added).
For this statute to apply, a “former prosecution” is required. This Court
has held that paying a fine and pleading guilty to a summary offense without
-5-
J-S48010-20
notice to the district attorney and appearing before a judicial officer is not a
“former prosecution” to which Section 110 applies.
In Commonwealth v. Gimbara, 835 A.2d 371 (Pa. Super. 2003),
appeal denied,
853 A.2d 360 (Pa. 2004), the defendant received a citation for
speeding and another for driving with a suspended license. He mailed a guilty
plea and payment to the magistrate’s office for the charge of speeding, but he
also pleaded not guilty in that mailing to the suspended-license charge. The
magistrate processed the payment for the first offense and set a hearing date
for the second charge. Following that hearing, the magistrate found the
defendant guilty. The defendant appealed to the trial court and moved that
the suspended-license charge be dismissed pursuant to the compulsory-
joinder-rule. The trial court denied relief, and this Court affirmed.
The Gimbara Court explained that a defendant must satisfy all four
prongs of the below test to compel a dismissal under Section 110:
(1) the former prosecution resulted in an acquittal or a
conviction, (2) the current prosecution must be based on
the same criminal conduct or have arisen from the same
criminal episode as the former prosecution, (3) the
prosecutor must have been aware of the current charges
before the commencement of the trial for the former
charges, and (4) the current charges and the former
charges must be within the jurisdiction of a single court.
Gimbara, 835 A.2d at 373–74 (quoting Commonwealth v. Failor, 770 A.2d
310, 313 (Pa. 2001)). This Court then opined that “The third [prong] has not
been met, because there was never a former prosecution to which this
prosecution is subsequent.”
Id. at 376. Mailing in the fine and guilty plea for
-6-
J-S48010-20
one offense was not a “former prosecution” under the compulsory-joinder rule,
because the defendant did not stand trial. Thus, the protections of Section
110 never attached. Because he “was not subjected to successive trials for
offenses stemming from the same criminal episode,” id., the defendant’s
prosecution for driving with a suspended license could proceed to trial.
The same is true in the instant matter. Instead of mailing in his fine for
a summary offense, Bennett sent his lawyer to pay it for him in person. This
is a distinction without a difference. Like the defendant in Gimbara, Bennett
did not stand trial before the minor judiciary. The Commonwealth never
“subjected [Bennett] to successive trials for offenses stemming from the same
criminal episode, [and his firearm-related charges are] not barred under
Section 110” by filing a guilty plea with court staff and paying a fine for his
tinted windows. Gimbara, 835 A.2d at 376.
The Commonwealth had no control over when Bennett’s attorney
decided to appear at the in-take window of the Municipal Court of Philadelphia,
any more than it could control when a defendant mails in a guilty plea and
fine for a summary offense. “When a defendant appears in person before a
[magisterial district judge], the prosecuting officer may prevent the entry of
different pleas, thus exercising the burden placed upon the Commonwealth by
Section 110.” Id. at 377. But where a defense attorney enters a guilty plea
before court staff, without first informing the Commonwealth, “such an
opportunity is not presented, because the prosecuting officer has no notice of
when the pleas come into the [Municipal Court] office.”
Id. “Where there is
-7-
J-S48010-20
no opportunity for the Commonwealth to exercise its obligation under Section
110, the purposes of Section 110 would not be advanced.” Id.
Accordingly, as in Gimbara, we find no error in the trial court’s refusal
to dismiss the felony and misdemeanor charges against Bennett.4 Section
110 does not apply under this procedural posture. Bennett attempted to play
the Perfetto decision like a Get-Out-of-Jail-Free Card, rather than using it as
a shield against double jeopardy. We will not reward such gamesmanship.
Order affirmed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judge McCaffery joins this Opinion.
Judge King concurs in the result.
____________________________________________
4 We note that, in his brief, Bennett requests that we submit this case to the
Court en banc to reconsider our holding in Commonwealth v. Johnson, 221
A.3d 217 (Pa. Super. 2019), reargument denied (Dec. 26, 2019), allowance
of appeal granted,
237 A.3d 962 (Pa. 2020). En banc review of Johnson is
unnecessary, because the Supreme Court of Pennsylvania recently granted
Johnson’s petition for review. Additionally, because we have not relied upon
Johnson to affirm the appealed-from order, any future clarification from the
Supreme Court in that matter is irrelevant to Bennett’s appeal. As such, his
request to circulate this appeal to the full Court for a possible en banc hearing
is DENIED.
-8-
J-S48010-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/21
-9-
