PA Superior Court: Police May Destroy Buy Money Used In Confidential Informant Drug Case

Commonwealth v. Ribot

The Pennsylvania Superior Court has just held that police may testify to the use of pre-recorded buy money in confidential informant drug cases even where the police returned the money to general circulation after it was recovered, thereby losing it. In the case of Commonwealth v. Ribot, the Superior Court overturned the Philadelphia trial court’s order granting a defense motion in limine. The trial court's order precluded a police witness from testifying about the use and recovery of pre-recorded buy money in a drug case where police did not put the money, which had allegedly been used by a confidential informant to purchase drugs, into evidence after recovering it.

Confidential Informants and Pre-Recorded Buy Money

In Ribot, Philadelphia Police narcotics officers arranged for a confidential informant to purchase heroin from the defendant. In these types of cases, the police officers will usually take some steps to record the serial numbers of the bills used to buy the drugs prior to having the CI make a purchase of narcotics. This way, when police arrest a suspect or execute a search warrant, they will have a stronger case of Possession with the Intent to Deliver against the person who is found in possession of the previously recorded buy money because the officers will testify that that person must have obtained the money from the Confidential Informant in exchange for drugs. Here, the officers entered the serial numbers of the bills into a computer database prior to giving the bill to the confidential informant. An officer then printed out a time stamped copy of the computer entry and circled the serial number of the bill which was to be used in that day’s narcotics surveillance.

After “recording” the serial number of the bill in this manner, the police officer transported the CI to the street and sent the CI to buy heroin. The CI allegedly used the buy money to purchase heroin from the defendant, and the CI turned that heroin over to the police. The police then arrested the defendant and recovered the pre-recorded buy money. Instead of putting it on a property receipt and preserving it for trial, the police then put it back into circulation to use in future investigations.

Possession with the Intent to Deliver Charges

After being arrested and charged with Possession with the Intent to Deliver (“PWID”) of heroin, the defendant made a motion in limine to exclude any mention of the buy money at trial under the Best Evidence Rule and as a discovery sanction for the Commonwealth’s failure to preserve evidence. The Philadelphia trial court held a hearing, and the officer testified that it was normal police procedure for the police to get rid of the money and use it in other investigations. Of course, the defense attorney impeached the officer with police directives which require that the money be preserved for trial.

The Best Evidence Rule and Pre-Recorded Buy Money

The trial court granted the motion in limine and precluded the Commonwealth from eliciting any testimony about the exchange of money. The prosecution appealed to the Superior Court, and the Superior Court reversed. First, the Superior Court held that mentioning the use of the money and the way in which it was recorded did not violate the Best Evidence Rule despite the fact that introducing the money itself would have been the best evidence. Under the Pennsylvania Rules of Evidence, “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules, other rules prescribed by the Supreme Court, or a statute provides otherwise.” This means that in a contract dispute, the parties may not try to prove the contents of the contract through oral testimony. Instead, the party seeking to offer evidence of a contract must introduce the actual contract into evidence.

Obviously, the money itself would be the best evidence of the fact that the money was used in the investigation. However, there are limits to the Best Evidence Rule in that it only applies when the contents of the document are necessary to prove the case or an element of the offense or defense. Thus, Rule 1002, the Best Evidence Rule, requires that an original writing, recording, or photograph be introduced at trial only if the proponent must prove the contents of the writing, recording, or photograph to prove the elements of its case.

Here, the actual serial number of the buy money was not essential for the Commonwealth to prove the elements of the case. Instead, the charges required the prosecution to show that the defendant sold drugs to the Confidential Informant, not that the bills had a certain serial number on them. The Court held that although police may not have followed the best procedures when they failed to preserve the evidence, the Best Evidence Rule does not prevent them from testifying about the money's existence and use. The Court also noted that its ruling would not leave the defendant without a remedy. At trial, the defendant would have ample opportunity to cross examine the police officer as to what happened to the money and suggest that the money was not actually recovered.

The Court noted:

“While evidence of the officer’s entry of the bill’s serial number into the computer may be less strong than either of those alternatives, that means only that such evidence is more vulnerable to attack, not that it is inadmissible. At trial, Ribot’s counsel would have ample opportunity to cross-examine [the officer] about the buy money and his method of pre-recording its serial number.”

In some cases, it may also be possible to request a missing evidence jury instruction, and jury instructions can be very important. 

Finally, the Superior Court concluded that the Commonwealth should not face discovery sanctions for destroying evidence because the Commonwealth never actually possessed the buy money. This analysis obviously creates a line between the prosecution and the police which does not really exist, and many other cases have held that the contents of the police file can be attributed to the prosecutor. Nonetheless, the Superior Court reversed the trial court’s order and remanded the case to the Court of Common Pleas for trial on the drug charges.

Philadelphia Criminal Defense Lawyers for Drug Charges

Philadelphia Criminal Defense Attorneys Zak T. Goldstein, Esq. and Demetra Mehta, Esq.

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have won countless pre-trial motions, bench trials, and jury trials. Our defense attorneys have also successfully resolved many cases through negotiations which resulted in excellent outcomes for our clients. We offer a 15-minute criminal defense strategy session to any potential client, so call 267-225-2545 to speak with one of our experienced and understanding defense attorneys today. 

Withdrawing a Guilty Plea in Pennsylvania

I pleaded guilty, and I think it was a mistake. Can I withdraw a guilty plea? 

Yes, in some cases it is possible to withdraw a guilty plea and go to trial. However, there are strict time limits for when motions to withdraw guilty pleas must be filed, and the motions are often difficult to win. If you recently pleaded guilty and feel that you may have made a mistake, you should contact one of our defense attorneys at 267-225-2545 immediately to discuss the merits of withdrawing your plea and the likelihood of success. If you wait too long, you could waive the right to challenge your plea forever. 

How do I withdraw a guilty plea?

There are three ways that a guilty plea could be withdrawn. First, if the sentencing has not yet occurred, then the defendant may file a written pre-sentence motion to withdraw the guilty plea. Second, if the sentencing has already occurred, then the defendant has ten days from the date of sentencing to file a post-sentence motion asking the court to permit the defendant to withdraw the guilty plea. Finally, in rare cases, it may be possible to ask the judge for a new trial even after a guilty plea by filing a Post-Conviction Relief Act Petition. A PCRA Petition must be filed within one year from when the sentence became final. A sentence becomes final on the day of sentencing unless there is an appeal. Post-sentence motions and PCRA Petitions challenging guilty pleas are difficult to win. 

Does the judge have to let me withdraw the plea? 

Demetra Mehta, Esq. - Criminal Appeals Attorney

The judge is never required to allow a defendant to withdraw a plea. Instead, the judge must evaluate the allegations in the written motion and determine whether the interests of justice require that the defendant be allowed to withdraw a plea and proceed to trial. The exact standard which a judge will apply depends on the procedural posture of the case. Pre-sentence guilty pleas are typically easier to undo than a post-sentence guilty plea. 

As a general rule, pre-sentence guilty pleas are the easiest to undo and motions to withdraw them are often granted. However, the right to withdraw a plea pre-sentencing is not absolute. in Commonweatlh v. Carrasquillo, the Pennsylvania Supreme Court re-affirmed that the trial court is imbued with the discretion to deny a defendant permission to withdraw a guilty plea, whether that request is tendered before or after sentencing. The Supreme Court suggested that a pre-sentence motion should typically be granted, but it reiterated that there is no absolute right to withdraw a guilty plea. Instead, trial courts have discretion in determining whether a withdrawal request will be granted; such discretion is to be administered liberally in favor of the accused; and any demonstration by a defendant of a fair-and-just reason will suffice to support a grant, unless withdrawal would work substantial prejudice to the Commonwealth.

Prior to Carrasquillo, a defendant was entitled to pre-sentence withdrawal of a guilty plea simply upon a bare assertion of innocence. Now, a defendant may be required to demonstrate that the claim of innocence is plausible in order for it to be a fair and just reason for withdrawal of a plea. Thus, in the recent Superior Court case of Commonwealth v. Baez, the Pennsylvania Superior Court upheld the trial court's denial of a pre-sentence motion to withdraw a guilty plea where the defendant had picked a jury, heard from a number of witnesses, and then decided to plead guilty to various sexual offenses pursuant to negotiations with the prosecution. The Baez court concluded that the Commonwealth would suffer prejudice because child witnesses had already been required to testify and that the defendant had not provided a plausible claim of innocence.  

Zak T. Goldstein, Esq. - Philadelphia Criminal Appeals Lawyer

Pre-sentence motions are no longer guaranteed, but they are often granted. Post-sentence motions, however, are much more difficult to win. Nonetheless, they may still be granted in some cases. Post-sentence motions for withdrawal are subject to higher scrutiny because courts strive to discourage entry of guilty pleas as sentence-testing devices. Instead, a defendant must demonstrate that manifest injustice would result if the court were to deny his post-sentence motion to withdraw a guilty plea. This is a harder claim to prove, and it will typically require more than simply asserting the defendant's innocence. Instead, the defense would likely be required to show a compelling case for innocence or that some new evidence or witnesses have come forward since the plea. The post-sentence motion to withdraw a guilty plea must be filed within ten days of the sentence. 

Finally, in rare cases, it may be possible to attack a conviction through the Post-Conviction Relief Act Petition by filing a PCRA Petition within one year of sentencing or the conclusion of direct appeals, whichever is later. If the defendant can show that the plea was the result of ineffectiveness of counsel, that after-discovered, exculpatory evidence would have changed the defendant's mind about pleading guilty, or some change in constitutional law that would have provided a defense, it may be possible to challenge a guilty plea by filing a PCRA. Again, the time limits are strict, and if motions are not filed on time, then the right to attack the conviction could be lost forever. 

What happens if I am allowed to withdraw the guilty plea?

If the judge grants the motion to withdraw the plea, then your case will proceed as if the plea was never entered. This means that the parties are free to continue plea negotiations in the hopes of reaching a better deal. The parties may also litigate motions like pre-trial motions to suppress and then proceed to trial. Most importantly, the fact that the defendant pleaded guilty at one point during the case and was permitted to withdraw the plea is not admissible against the defendant at trial. The Rules of Evidence specifically prohibit introducing evidence relating to plea negotiations and in-court plea proceedings. This means that the fact that there was at one point a guilty plea cannot be used against the defendant to show guilt. 

Philadelphia Criminal Defense Lawyers for Post-Sentence Motions, Criminal Appeals, and Post-Conviction Relief Act Petitions

Goldstein Mehta LLC - Philadelphia Criminal Defense Attorneys

If you recently pleaded guilty and believe that you made a mistake, we may be able to help. We have successfully helped clients reverse convictions and pleas through the use of post-sentence motions, appeals, and Post-Conviction Relief Act Petitions. It is important to remember that strict deadlines apply when attempting to undo a guilty plea. We offer a free criminal defense strategy session with one of our experienced and understanding defense attorneys to every potential client. Call 267-225-2545 to speak with an award-winning Philadelphia Criminal Defense Lawyer today. 

Lineup Motions in Philadelphia

In many cases involving charges like Robbery, Aggravated Assault, and Burglary, an eyewitness’s ability to make an identification is the key issue in the case. Numerous studies have shown that eyewitness identification testimony, which is often accepted without hesitation by judges and juries as the best kind of evidence, is actually tremendously unreliable and the number one cause of false convictions. In the overwhelming majority of DNA-based exonerations, the defendant was convicted on the basis of a misidentification by an eyewitness or complaining witness who claimed to be absolutely certain that the defendant committed the crime.

Fortunately, courts have increasingly begun to recognize that eyewitness identifications are often mistaken. In most cases, the eyewitnesses truly believe that the defendant committed the crime, but they have made a terrible mistake. This can happen for any number of reasons, including human fallibility and problems with memory as well as undue police influence even where the police mean well. For this reason, the Philadelphia Police Department and other law enforcement agencies have begun to improve their identification procedures. For example, most Philadelphia Detectives now take steps to tell the complainant or eyewitness that the suspect may not be in a photo array, they show photos one at a time so the photo can be compared to memory instead of other photos on the page, and the photo array is conducted by a detective who does not know who the suspect is and therefore cannot subconsciously influence the witness’s identification.

What is a motion for a lineup?

Zak T. Goldstein, Esq. - Philadelphia Criminal Lawyer

 In addition to these new procedures, there is a critical motion which can be made by the defense at the preliminary hearing in Philadelphia felony cases. Prior to the preliminary hearing in a case in which there will be some kind of eyewitness identification, the defense attorney may make a motion for a lineup. If the motion is granted, the complainant or eyewitness will be required to attend a lineup at the Curran-Fromhold Correctional Facility and attempt to make an identification of the defendant prior to the preliminary hearing. These pre-trial lineups can be extremely important. If the complainant is unable to make an identification or identifies the wrong person, then the misidentification or failure to ID could have a dramatic impact on the case.

Winning a lineup motion in Philadelphia

Bringing a lineup motion does not require filing anything in writing in the Municipal Court because all motions are made orally. Instead, the defense attorney must inform the judge that the attorney has a motion for a lineup when the case is first called in the morning. If the prosecution agrees that a lineup is appropriate, then the judge will order a lineup and continue the preliminary hearing so that the lineup may occur. This is rare as the prosecution almost always opposes the lineup request due to the delay it causes in the case and the fact that a misidentification could be fatal to the case.

Therefore, once the defense makes the lineup motion, the prosecution will typically provide the Municipal Court judge with a summary of the evidence against the defendant and provide reasons for why the lineup request should be denied. The defense lawyer will then be given the opportunity to respond and argue that a lineup is necessary to protect the defendant (and Commonwealth) from a false identification. In some cases, the judge may want to question the witness about the circumstances of the identification and may allow the attorneys for each side to do so, as well.

The case of Commonwealth v. Sexton suggests some of the main factors that a court should consider in ruling on a lineup request and the remedy for when a lineup request is improperly denied. These factors include:

• Do the witness and defendant know each other? Have they seen each other before such that the witness knows what the defendant looks like? This question includes whether some type of identification has already occurred. If the police conducted a “show up” immediately after the incident where the witness was shown and identified the defendant, then the lineup may not be as helpful because the witness already knows what the defendant looks like and believes the defendant committed the crime. Likewise, if the defendant and witness know each other, the lineup will not be particularly useful.
  

• The witness’s opportunity to observe during the incident. This includes factors such as the length of the incident, whether the case involves a cross-racial identification, whether a weapon was involved, how close to each other the witness and suspect were, whether a weapon like a gun was involved, and whether the suspect had anything obscuring his or her face.
  

• Is there other strong evidence against the defendant? For example, if the witness would make a somewhat questionable identification but the defendant is also clearly on video committing a Robbery or Aggravated Assault, then the judge is likely going to find that the delay caused by ordering a lineup is not worth it.

In order to win a lineup motion in Philadelphia, the defense attorney must be able to make a strong argument that based on these factors, the likelihood of a misidentification makes the delay caused by the lineup worth it. For example, Attorney Goldstein recently won a lineup motion in the case of Commonwealth v. R.R. by arguing that a lineup was necessary because the alleged robbery took place in the dark at 2 am, lasted for less than a minute or two, the witnesses and defendants did not know each other, the case involved a cross-racial identification, and a gun was used. Further, there was very little corroborating evidence against the defendants other than the identification. Therefore, the Court granted the lineup motion.

What Is A Lineup?

Once ordered by the Court, the lineup will take place at 5 pm on a weekday at the Curran-Fromhold Correctional Facility on State Road. The defense will be allowed to pick five “fillers” for a lineup of six people, including the defendant. The fillers will typically be inmates at the prison, and the defense attorney must be careful to help the defendant pick fillers who look similar to the defendant. The witness will then be shown the lineup through one-way glass and asked if they identify anyone. The witness’s response will be documented by both the defense attorney, the assigned prosecutor, and a Philadelphia Police Detective.

Will the case get dismissed if the witness fails to pick me out at a lineup?

The prosecution is not required to withdraw the case just because the witness fails to identify the defendant at a lineup. In some cases, they will do so, but in others, they will not. It depends on the strength of the initial identification and whether the prosecution has other evidence. For example, if one witness fails to identify the defendant, but another witness will be able to identify the defendant or the defendant was caught in possession of the proceeds of the burglary, then the prosecution may be able to proceed to trial even without the identification from the witness who failed to pick out the defendant. In other cases, the prosecution will still argue that the initial identification in which the witness picked the defendant out at a show up or out of a photo array was more accurate than the lineup. Each case is different, and whether the prosecution chooses to proceed despite the failure to identify at the lineup will vary depending on all of the circumstances of the case.

Can anything be done if the judge improperly denies the lineup motion or the prosecutor gives incorrect information during argument on the motion for a lineup?  

There is a remedy in cases where a lineup should have been ordered but was not, but it is typically not going to be dismissal of the case or suppression of the identification. In cases where the prosecutor in fact made knowingly false representations, it may be possible to successfully move for dismissal of the case or exclusion of the identification. However, in the more common case in which the prosecutor made a mistake or the evidence turned out to be different than expected, the Supreme Court has suggested that the jury should receive a jury instruction. The jury instruction in this type of case directs the jury to consider the identification of the defendant with caution and may inform the jury of some of the potential problems with eyewitness identifications. Most jurors do their best to follow the judge’s jury instructions carefully. This means that jury instructions are extremely important. In a close case, a jury instruction directing the jury to view the identification with caution could be the difference between a conviction and an acquittal.  

Award-Winning Philadelphia Criminal Defense Lawyers for Lineup Motions

Philadelphia Criminal Defense Attorneys Zak T. Goldstein, Esq. and Demetra Mehta, Esq.

Lineup motions are most common in Robbery, Burglary, and Assault cases. Our award-winning Philadelphia criminal defense attorneys have successfully represented hundreds, if not thousands, of clients in these serious cases. We have won dozens of lineup motions and taken countless cases to trial before judges and juries throughout Pennsylvania. We offer a free 15-minute criminal defense strategy session to any potential client who is facing criminal charges or may be under investigation. Call 267-225-2545 to speak with one of our experienced, understanding defense attorneys.  

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PA Superior Court: Summary Traffic Offenses May Be Charged Separately From Serious Offenses in Philadelphia

For many years, it was the routine practice of the Philadelphia Police Department to charge summary traffic offenses and more serious charges like DUI or possessory offenses separately. For example, if police pulled a car over for speeding and ultimately found a gun in the car or ended up charging the driver with DUI, then the Commonwealth would bring the summary speeding charge in Philadelphia Traffic Court and the more serious gun charge or DUI charge in either the Municipal Court or the Court of Common Pleas. Thus, a defendant who wished to challenge the traffic citation would be required to attend twice as many court dates and hire a defense attorney twice.

This practice arguably violates Pennsylvania's compulsory joinder statute. Pennsylvania has a compulsory joinder statute which is codified at 18 Pa C.S. § 110. At its most basic level, a compulsory joinder statute requires the prosecution to bring charges which arise out of the same incident together in a single prosecution. This spares the defendant the additional time, expense, and stress of defending against two separate cases, and in this sense, compulsory joinder is very similar and related to the idea of Double Jeopardy – that a defendant may not be prosecuted for the same crime twice. Pennsylvania appellate courts had repeatedly ruled that under a prior version of Section 110 (the joinder statute), summary offenses were just different and did not count because the Court of Common Pleas held jurisdiction over misdemeanors and felonies and the Magisterial District Courts had jurisdiction over summaries. Therefore, the prosecution and police could bring summary traffic prosecutions in traffic court and misdemeanor and felony prosecutions in the Municipal Court and Court of Common Pleas.

In 2002, the Pennsylvania Legislature amended the statute to change language requiring compulsory joinder where the offenses occurred within courts of the same jurisdiction to offenses which occurred within the same judicial district. This language arguably has a dramatic impact. Instead of summaries being different due to the differing jurisdictions of the courts, the question became whether the offense occurred in the same judicial district. This issue became even more important approximately ten years later when the Philadelphia Traffic Court became enmeshed in scandal and was abolished. After the court was abolished, its functions were merged into the Philadelphia Municipal Court – Traffic Division. Thus, any argument that summary offenses were not within the same judicial district or that the Municipal Court did not have jurisdiction became extremely weak, and defense lawyers began to successfully move for cases to be dismissed due to the fact that summary traffic cases arising out of the same stop had already been resolved.

In the vast majority of cases, the traffic ticket would be resolved much faster than the criminal case. The traffic court hearings were scheduled more quickly, and if a defendant failed to appear for court, the defendant would be found guilty in absentia. Further, many defendants pay their traffic tickets online, by phone, or through the mail rather than going to court to fight them. This meant that a traffic court case could be disposed of within a month or two, and the defense could then move to dismiss the criminal case as violating the compulsory joinder rule. Once prosecutions realized they had a potential problem, Philadelphia Police quickly changed their procedures and stopped issuing traffic tickets in cases where they also intended to charge the defendant with a more serious crime. However, many existing cases were successfully dismissed because the traffic tickets had already been resolved.

Although this issue is not as prevalent today because a large number of the cases in which this happened have already been resolved, the Superior Court has just held that the unique rules establishing the Philadelphia Municipal Court – Traffic Division trump the compulsory joinder rule and allow the traffic citations to be issued separately from the criminal charges.   

On August 30, 2017, the Pennsylvania Superior Court issued its decision in Commonwealth v. Perfetto. The Superior Court overturned the trial court’s decision granting Mr. Perfetto’s Motion to Dismiss. Although this decision is limited to Philadelphia, it could potentially affect a large number of defendants who are charged with Driving Under The Influence (“DUI.”)

Commonwealth v. Perfetto

In July 2014, Mr. Perfetto was arrested in Philadelphia and charged with three counts of “DUI.” Mr. Perfetto was also charged with the summary offense of driving without lights as required, a traffic citation. Although traffic citations are not considered very serious, they are still summary offenses, and all summary offenses are crimes under Pennsylvania law. In September 2014, Mr. Perfetto was found guilty of the traffic citation by the Philadelphia Municipal Court – Traffic Division. In June 2015, Mr. Perfetto filed a motion to dismiss in his DUI case, arguing that § 110 barred the prosecution. The trial court agreed with Mr. Perfetto and dismissed the DUI case. The court granted the motion because Mr. Perfetto’s case satisfied the four requirements of § 110. Shortly thereafter, the Commonwealth filed an appeal, arguing that Mr. Perfetto’s subsequent DUI prosecution was not barred by § 110. 

What is Double Jeopardy and § 110?

Double Jeopardy is mentioned in both the United States Constitution (5th Amendment) and the Pennsylvania Constitution (Article 1, Section 10). Double Jeopardy is the rule that the same government cannot put you on trial for the same charges twice. For example, let’s say a defendant is accused of punching a complainant in the face and is charged with Simple Assault and Recklessly Endangering Another Person (REAP). If the defendant was acquitted of these charges, the same government could not put that defendant on trial again for those charges because Double Jeopardy would forbid it. This rule does not always apply against other levels of government. For example, a federal prosecution will prevent the Commonwealth of Pennsylvania from bringing a subsequent prosecution, but a Pennsylvania prosecution will not prevent the United States from bringing a federal prosecution.     

The idea of compulsory joinder is similar and arises out of many of the same concerns of Double Jeopardy. As previously explained, Section 110 provides Pennsylvania’s compulsory joinder rule. § 110 is similar to the Double Jeopardy clauses of the Pennsylvania and U.S. Constitutions, but more nuanced. § 110 is the codification of the rule announced in the Pennsylvania Supreme Court decision of Commonwealth v. Campana, 304 A.2d 432 Pa. 1973). In Campana, the 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.” Id. at 374. This is known as compulsory joinder. Using the same example above, let’s say that in addition to punching the complaining witness, the defendant also told said this person that he was going to kill him (arguably a Terroristic Threat), however the government only charged him with Simple Assault and REAP. Assuming this defendant is acquitted again, the defendant could not subsequently be tried for the crime of Terroristic Threats. The reason is because the “terroristic threat” came from the same criminal episode as the assault. Again, this would only prevent Pennsylvania from bringing a second prosecution; the federal government may still be able to bring federal charges.  

In order to be successful when bringing a § 110 motion to dismiss, the defense must show four things: 1) the 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; 3) the prosecutor in the subsequent trial was aware of the charges before the first trial; and 4) all the charges are within the same judicial district as the former prosecution. The key issue in Mr. Perfetto’s case was the fourth prong of this analysis because it was the fourth prong that changed in the 2002 amendment to the compulsory joinder rule.

The Pennsylvania Superior Court Holds that Philadelphia’s Traffic Division of Municipal Court is a Separate Judicial District

In overturning the trial court’s decision, the Pennsylvania Superior Court made a very technical finding. First, the Court looked to 42 Pa C.S.A. § 1302, a statute which addresses traffic courts. In analyzing the statute, the Court held that when a traffic offense is resolved in a jurisdiction with a traffic court, there is no violation of § 110 if the more serious criminal charges are filed separately. In other words, if a jurisdiction does not have a traffic court, then § 110 would apply if a defendant resolved the traffic offense prior to their criminal offense, but the same is not true when the jurisdiction has a traffic court.

Unfortunately, Philadelphia is different than other jurisdictions in Pennsylvania because its traffic court is specifically mentioned in § 1302. In 2013, Philadelphia’s traffic court merged with Philadelphia’s Municipal Court. This created two divisions: the General Division and the Traffic Division. Therefore, the Municipal Court has jurisdiction over both traffic and criminal offenses. Thus, prior to Perfetto, defense attorneys would argue that because Philadelphia does not have a separate traffic court, §110 applied for traffic offenses.

The Superior Court has now rejected this argument at least as it applies to Philadelphia courts. The Superior Court noted that the Pennsylvania Supreme Court has the power to create rules for the general practice and procedure of the Courts. With this in mind, the Superior Court focused on a May 2014 comment to Pennsylvania Rule of Criminal Procedure 1001(D) which addresses Philadelphia Municipal Court.  The comment stated:

This rule, which defines “Municipal Court case,” is intended to ensure that the Municipal Court will take dispositive action, including trial and verdict when appropriate, in any criminal case that does not involve a felony, excluding summary cases under the Vehicle Code. The latter are under the jurisdiction of the Municipal Court Traffic Division, the successor of the Philadelphia Traffic Court.

Pa.R.Crim.P. 1001(D), cmt.

As such, the Superior Court held that the Supreme Court’s intent was for the traffic division of the Municipal Court to exclusively hear the traffic offenses. Thus, the Superior Court held that, in essence, Philadelphia’s Municipal Court traffic division is analogous to a jurisdiction with its own separate traffic court. Consequently, the Superior Court held that § 110 does not bar subsequent prosecution of a criminal offense when there has been a prior disposition of a traffic offense in Philadelphia. The Superior Court reversed the ruling of the trial court, and Mr. Perfetto’s case was remanded back to the Philadelphia Municipal Court for trial.

DUI Cases     

At this point, the impact of Perfetto is relatively limited. For a number of years, unpublished opinions of the Pennsylvania Superior Court reached the opposite conclusion, so a large number of cases have already been dismissed and cannot be reinstated. For those cases which were on appeal and awaiting the decision in Perfetto, the defendants will now face prosecution once again. However, the Philadelphia Police Department stopped issuing separate traffic citations a number of years ago due to this rule, so the decision is not likely to substantially affect newly charged defendants. Certainly, Perfetto will likely be appealed to the Pennsylvania Supreme Court, and the issue may not be resolved. 

Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Attorneys

As always, DUI cases can be very technical and there are a number of ways to beat them.  If you are charged with DUI, you need an attorney who has the knowledge and expertise to fight your case. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.