The opinion
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2021 PA Super 208
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAIYCHELLE ATKINSON :
:
Appellant : No. 1562 EDA 2016
Appeal from the Order Entered 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.
DISSENTING OPINION BY OLSON, J.: FILED OCTOBER 19, 2021
I believe that the law is now clear that Appellant, Daiychelle Atkinson,
cannot be prosecuted for driving under the influence (“DUI”), as 18 Pa.C.S.A.
§ 110(1)(ii) plainly and unmistakably applies to the facts of this case and no
statute provides an exception for Section 110(1)(ii)’s prosecutorial bar. With
respect, the Majority’s statute-free analysis simply cannot withstand scrutiny
when confronted with the clear and unambiguous language of Section
110(1)(ii). See Majority Opinion, at *21 n.23 (declaring: “we need not even
analyze the four factors found in section 110”). Thus, I respectfully dissent.
In relevant part, Section 110 of the Crimes Code declares:
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:
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(1) The former prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title . . . 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(1)(ii).
In Commonwealth v. Perfetto, 207 A.3d 812 (Pa. 2019), the
Pennsylvania Supreme Court held:
Subsection 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 for a different offense:
(1) the former prosecution must have 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 commencement of the trial on the former
charges; and
(4) the current offense occurred within the same judicial
district as the former prosecution.
Perfetto, 207 A.3d at 821 (quotations and citations omitted) (emphasis
added).
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Applying Section 110(1)(ii) to the case at bar, it is uncontradicted that
all four elements of the statute have been met. Certainly: 1) Appellant’s
former prosecution for disregarding a traffic device resulted in a conviction;
2) the current prosecution for DUI arose from the same criminal episode as
Appellant’s former prosecution (both charges arose out of a single traffic
stop); 3) the prosecutor was aware of Appellant’s DUI charge before trial
commenced on the summary traffic offense; and, 4) Appellant’s DUI offense
occurred within “the same judicial district” as her former prosecution, as both
occurred within “the First Judicial District, i.e., Philadelphia.”1 See id. at
821-822. Thus, to paraphrase Perfetto, “a straightforward application of the
plain language of Subsection 110(1)(ii) of the compulsory joinder statute to
the circumstances presented in this appeal makes clear that the
Commonwealth is precluded from prosecuting Appellant for [her] DUI
charge[].”2 Id. at 822.
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1 In Commonwealth v. Fithian, 961 A.2d 66 (Pa. 2008), the Pennsylvania
Supreme Court held that the phrase “judicial district” “means the geographical
area established by the General Assembly in which a court of common pleas
is located.” Fithian, 961 A.3d at 75.
2 Further, no statutory exception applies to avoid Section 110(1)(ii)’s
prosecutorial bar. Indeed, the only possible, relevant exception is found in 18
Pa.C.S.A. § 112(1). This section declares:
A prosecution is not a bar within the meaning of section 109 . . .
through section 111 of this title . . . under any of the following
circumstances:
(Footnote Continued Next Page)
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The Majority arrives at a contrary conclusion. Looking to the “intent”
and “purpose” of Section 110(1)(ii), the Majority concludes that Section
110(1)(ii) “do[es] not apply” to this case because “at the time [Appellant] was
found guilty of her summary traffic violation in the now-eliminated . . . Traffic
Court of Philadelphia, it was statutorily impossible for the Commonwealth to
consolidate both of [Appellant’s] offenses for prosecution.” Majority Opinion,
at *2. According to the Majority, Section 110 (which is often called the
“compulsory joinder rule”) simply cannot apply here, as “[j]oinder cannot be
compulsory where it is unachievable.” Id. at 19-20.
The problem with the Majority’s analysis lies, first, in the fact that all
four elements of Section 110(1)(ii) have unequivocally been met in this case.
See supra at *3. As our Supreme Court has explained, since all four elements
have been met, the “clear[] and unambiguous[]” language of Section
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(1) The former prosecution was before a court which lacked
jurisdiction over the defendant or the offense.
18 Pa.C.S.A. § 112(1). In Commonwealth v. Johnson, 247 A.3d 981 (Pa.
2021), the Pennsylvania Supreme Court held that the phrase “the offense” in
Section 112(1) “means the offense that was the subject of an initial
prosecution resulting in a conviction or acquittal.” Johnson, 247 A.3d at 987.
Here, in the initial prosecution, Appellant was convicted of the summary traffic
offense in the Traffic Court of Philadelphia – and it is uncontradicted that the
Traffic Court of Philadelphia had jurisdiction to convict Appellant of the traffic
offense. Therefore, in accordance with Johnson, Section 112(1)’s exception
does not apply to the case at bar, as Appellant’s former prosecution for the
summary traffic violation was before a court that possessed jurisdiction over
both the defendant and the summary traffic offense.
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110(1)(ii) precludes Appellant’s DUI prosecution. See Perfetto, 207 A.3d at
821.
Application of the facts to the “clear[] and unambiguous[]” language of
the statute should end the analysis in this case and result in the vacation of
the trial court’s order. Certainly, as our Supreme Court has held, “[w]hen
interpreting an unambiguous statute . . . the plain meaning of the statute
must control.” Brown v. Levy, 73 A.3d 514, 517 (Pa. 2013). The Majority,
however, disregards the plain language of the statute and holds that “the
compulsory joinder rule is simply not implicated [here]. . . . Joinder cannot
be compulsory where it is unachievable.” Majority Opinion, at **19-20.
With all due respect, this analysis violates our principles of statutory
construction. As our Supreme Court has explained, “basic principles of
statutory construction demand that when the words of a statute are clear and
free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.” Brown, 73 A.3d at 517. By admittedly ignoring
the plain language of Section 110(1)(ii) in pursuit of furthering the statute’s
“intent” and “purpose,” the Majority is violating this basic principle of statutory
construction. See Majority Opinion, at *21 n.23 (declaring: “we need not
even analyze the four factors found in section 110”).
Moreover, and setting aside all of the above concerns, the Majority’s
analysis might have some surface appeal if Section 110(1)(ii) actually spoke
to the joinder of offenses. Then, it might possibly be said that the compulsory
joinder rule is not implicated, as “[j]oinder cannot be compulsory where it is
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unachievable.” See Majority Opinion, at *19-20. However, Section 110 does
not expressly speak to the “compulsory joinder” of offenses. Indeed, Section
110 is entitled “[w]hen prosecution barred by former prosecution for
different offense” and the plain language of the statute speaks – not to joinder
of offenses – but, rather, to “the circumstances under which a prosecution
is barred by a previous prosecution for a different offense.” 18 Pa.C.S.A.
§ 110 and cmt. (emphasis added). The language of the statute is, thus,
expressly concerned with the bar of prosecution – not with the “compulsory
joinder” of offenses. As such, the premise of the Majority’s argument cannot
withstand scrutiny.
While the Majority declares otherwise, I believe it is clear that the
Majority is simply amending Section 110(1)(ii) to add a fifth primary element.
Now, according to the Majority, Section 110(1)(ii) must also include the
requirement that the former prosecution and the subsequent offense be
“within the jurisdiction of a single court.” This is error for multiple reasons,
not least of which is the fact that, in 2002, the General Assembly amended
Section 110(1)(ii) and expressly eliminated the language the Majority now
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adds.3, 4 Further, it is simply beyond this Court’s power to act as a super
legislature and re-write Section 110(1)(ii), just because we find that the
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3 Prior to its 2002 amendment, Subsection 110(1)(ii) “barred the
Commonwealth from prosecuting a defendant when: (1) a former prosecution
resulted in an acquittal or conviction; (2) the current prosecution was based
on the same criminal conduct or arose from the same criminal episode as the
former prosecution; (3) the prosecutor was aware of all of the charges when
the former prosecution commenced; and (4) all of the charges were within
the jurisdiction of a single court.” Perfetto, 207 A.3d at 814 (emphasis
added); see also 18 Pa.C.S.A. § 110(1)(ii) (effective to August 26, 2002).
Our High Court interpreted the phrase “within the jurisdiction of a single court”
to mean “all of the charges relevant to the compulsory joinder analysis must
have been capable of adjudication in one court.” Id., citing Commonwealth
v. Geyer, 687 A.2d 815, 817 (Pa. 1996). In light of the amendment to
Subsection 110(1)(ii), all charges must no longer be capable of adjudication
in one court.
4 The Majority cites our 1980 opinion in Commonwealth v. Masterson, 418
A.2d 664 (Pa. Super. 1980) to support its decision. See Majority Opinion, at
*16 and n.16. In Masterson, the defendant was charged with the
misdemeanor offense of involuntary manslaughter and the summary traffic
offense of disregarding a traffic signal. The offenses occurred in Philadelphia
and they arose out of “the same criminal episode.” Masterson, 418 A.2d at
167. As is true in the case at bar, the offenses at issue in Masterson occurred
during the time that the Philadelphia Traffic Court possessed exclusive
jurisdiction over prosecutions for summary traffic offenses, but no jurisdiction
over misdemeanor charges. As is relevant to the case at bar, the latter
charges fell within the jurisdiction of the Philadelphia Municipal Court. See
id. at 168 and 170.
In Masterson, the Philadelphia Traffic Court held a trial on the defendant’s
summary offense and then discharged the defendant after the police officer
testified. Id. at 169. On appeal, the defendant argued that “his discharge at
a Philadelphia Traffic Court hearing on the charge of disregarding a red light
constitutes an acquittal within the meaning of Section 110, so that he may
not be prosecuted for the charge of involuntary manslaughter arising from the
episode.” Id. The Masterson Court interpreted the prior version of Section
110, which required that the offenses in the former and subsequent
prosecution be “within the jurisdiction of a single court.” See Perfetto, 207
(Footnote Continued Next Page)
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A.3d at 814; see also 18 Pa.C.S.A. § 110(1)(ii) (effective to August 26,
2002). We held that this version of Section 110 “did not bar [the defendant]
being tried in Municipal Court for involuntary manslaughter . . . , after the
summary offense was dismissed by [the] Traffic Court,” as “there was no
single court in which the Commonwealth could have filed both the summary
and misdemeanor charges.” Id. at 175-176. In other words, we held that
Section 110 did not bar the defendant’s subsequent prosecution, as the
offenses for the former and subsequent prosecutions were not “within the
jurisdiction of a single court.” See id.
Although the Majority recognizes that “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,’” the Majority posits
that the opinion is still relevant to the case at bar, as:
the Masterson Court’s analysis involved a detailed discussion of
“the Pennsylvania Constitution, the relevant statutes, and [the]
scant case law on [] point” in arriving at its conclusion that
“separate prosecutions of the offenses did not violate [the
defendant’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 [the defendant] for both the summary offense and
the misdemeanor[ offense] . . . and [the defendant] could not
have been tried on both offenses in Municipal Court.”
Majority Opinion, at *16 n.16 (citations, corrections, and emphasis omitted).
Respectfully, Masterson has no relevancy to the case at bar, as it dealt solely
with the issue of whether the defendant’s offenses were “within the jurisdiction
of a single court” – when Section 110 expressly barred serial prosecutions for
offenses that were, inter alia, “within the jurisdiction of a single court” as a
former prosecution. The Masterson Court’s analysis of “the Pennsylvania
Constitution, the relevant statutes, and [the] scant case law on [] point” was
all done in service of determining whether the offenses involved in the
defendant’s former and subsequent prosecutions were “within the jurisdiction
of a single court.” Stated another way, Masterson involved an issue of pure
statutory interpretation and, as the Majority recognizes, the General Assembly
amended Section 110 in 2002 and did away with the language “was within the
jurisdiction of a single court” – or, the very language that Masterson
(Footnote Continued Next Page)
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statute is not maximally punitive as applied to the facts of this case. City of
New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (“the judiciary may not
sit as a super legislature to judge the wisdom or desirability of legislative policy
determinations made in areas that neither affect fundamental rights nor
proceed along suspect lines”); Commonwealth v. Peck, 242 A.3d 1274,
1286 (Pa. 2020) (Wecht, J., concurring) (“Where the criminal laws are
concerned, courts should disabuse themselves of the notion that a
consequence is unintended, and thus ‘absurd,’ merely because it is not
maximally punitive. Otherwise, judges may be tempted to misapply the
absurdity doctrine and disregard the plain meaning of a law in pursuit of its
hidden ‘spirit’”).
I thus respectfully dissent.
Judge Bowes joins this Dissenting Opinion.
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interpreted. Therefore, and respectfully, the Masterson Court’s statutory
analysis and conclusion have no bearing upon the case at bar, as the current
version of Section 110 simply contains no requirement that the offenses be
“within the jurisdiction of a single court.”
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