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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER TISDALE
Appellant No. 2080 EDA 2013
Appeal from the Judgment of Sentence March 4, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): No. CP-51-CR-0015256-2012
BEFORE: SHOGAN, J., ALLEN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JULY 29, 2014
Christopher Tisdale appeals from the judgment of sentence imposed
on him on March 4, 2013, following his conviction on the charge of
possession of a controlled substance marijuana (possession) .1 Following a
non-jury trial, Tisdale was acquitted of the charge of possession with intent
to deliver (PWID).2
improperly convicted of possession and should have been convicted of
possession of a small amount of marijuana (SAM).3 After a thorough review
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1
35 P.S. § 780-113(a)(16).
2
35 P.S. § 780-113(a)(30).
3
35 P.S. § 780-113(a)(31).
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4
the certified record, and relevant law, we vacate the
judgment of sentence for possession of marijuana and remand to the trial
court for entry of a guilty verdict on the charge of possession of a small
amount of marijuana and for imposition of a new sentence.5
We adopt the facts of this matter as related by the trial court in its
Pa.R.A.P. 1925(a) Opinion.
On October 18, 2012, at approximately 12:15 p.m., Officer
Robinson and his partner were in an unmarked vehicle
conducting a surveillance for the sale of illegal narcotics near the
600 block of South 56th Street in the City of Philadelphia. The
officer observed Tisdale and another male, later identified as
Raheem, standing on the southwest corner of 56th Street and
Walton Street as an unknown black female approached the
corner of 56th Street and Catherine Street. Tisdale and Raheem
began walking toward the female, who was observed to have
reached into her pocket to pull out an undetermined amount of
U.S. currency. The female began to walk toward the two males
whereupon a marked police vehicle came traveling westbound on
Catherine Street. The female immediately put the money back
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4
On December 17, 2013, the Commonwealth obtained an extension of time
to February 13, 2014 to file its brief. The order stated no further extension
would be granted. The Commonwealth did not file its brief until June 16,
5
It appears that at the trial de novo, Tisdale was also facing a charge of
conspiracy to commit PWID. However, during the waiver of jury colloquy,
the only charge mentioned is PWID. At the end of the trial, the
Commonwealth argued the evidence supported a guilty verdict on
conspiracy. However, no verdict was announced on that charge. There are
no orders in the certified record indicating the disposition of that charge.
The docket indicates that Tisdale was found not guilty of conspiracy but that
the specific charge of conspiracy to commit PWID was nolle prossed. It is
obvious that Tisdale was not convicted of conspiracy, but we are unsure how
that charge was disposed of.
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in her pocket and walked into a corner store. The two males
turned around and began walking at a fast pace in the direction
from which they had just come. The males continued to walk
toward Walton Street, when police witnessed Raheem reach into
his pocket and pull out a clear baggie containing several items
believed to be marijuana.
The two males continued onto Walton Street, at which point
Raheem removed a clear baggie from his pants pocket and
handed it to Tisdale. Tisdale placed the baggie inside of a white
plastic bag that had already been positioned on the porch of
5545 Walton Street. The two men then proceeded to walk down
56th Street. Police then went to the porch and recovered twelve
(12) yellow packets, each containing 0.72 grams of marijuana,
from within the clear baggie that had been placed inside of the
white plastic bag. Police apprehended the two males and
recovered $20 USD from Tisdale and $49 USD from Raheem.
Trial Court Opinion, 10/04/2013, at 2-3.
Procedurally, we note that Tisdale was convicted of PWID and
conspiracy at a Municipal Court trial held on December 7, 2012. At that
time, the Commonwealth withdrew the charge of possession of a controlled
substance. Tisdale appealed and proceeded to a trial de novo before the
Honorable Linda Carpenter. At that time, the only possessory charge Tisdale
faced was a single count of possession with intent to deliver. Tisdale was
acquitted of the PWID charge, but was found guilty of possession. Tisdale
objected, claiming that under Commonwealth v. Gordon, 897 A.2d 504
(Pa. Super. 2006), because the stipulated amount of drugs involved was
under 30 grams of marijuana, the court was obligated to find Tisdale guilty
of SAM. The trial court rejected that argument and opined that because
Tisdale was never charged with SAM, Gordon was inapplicable. This appeal
followed.
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The instant case presents a unique combination of two principles of
law: the specific/general rule and lesser included offenses.6 The
specific/general rule was first announced in Commonwealth v. Brown, 29
prosecutions under the general provisions of the penal code when there are
Id. at 796-97. Further,
[t]his same policy remains in force nearly sixty years later and
continues to prevent the Commonwealth for pursuing general
criminal charges against an individual whose conduct was
constitutes the exclusive legal authority: for prosecution of the
acts charged.
Commonwealth v. Leber, d/b/a Arctic Contractors, Inc., 802 A.2d
648, 650 (Pa. Super. 2002).
This rule was applied in Gordon, where the defendant possessed 8.67
grams of marijuana. He was charged with both possession of a controlled
substance, subsection (16), and SAM, subsection (31). He was convicted
under the general offense found at subsection (16). Gordon stated, in
relevant part,
[i]n our view, the General Assembly, by including subsection
(31) in section 780-113 of the proscribed conduct of the Act,
wisely set out the specific crime of possession of a small amount
of marijuana, and created a graduated system of penalties that
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6
These two rules are sometimes confused. See Commonwealth v.
Karetny, Commonwealth v. Asbell, 880 A.2d 505 (Pa. 2005). Here, we
are not applying the rules together, but serially.
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imposes far heavier punishment for traffickers and lesser
sanctions for casual users of marijuana.
...
As a result, the conviction under the general proscription
contained in subsection (16) of section 780-113 of the Controlled
Substance, Drug, Device and Cosmetic Act must be vacated, and
the case remanded to the trial court for the entry of a verdict on
the charge of possession of a small amount of marijuana as
stated in subsection (31) of the Act.
Commonwealth v. Gordon, 897 A.2d at 509-10.
The recognition of the legislative intent to provide for a graduated
system of penalties for possession of marijuana predates Gordon. In 1976,
a panel of our Court stated:
Under the statutory scheme, possession of marijuana may be
prosecuted under at least three sections. Possession of a large
quantity of contraband is one factor which may lead to a
conviction of possession with intent to deliver. See
Commonwealth v. Santiago, 462 Pa. 228, 340 A.2d 440
(1975); Commonwealth v. Hill, 236 Pa.Super. 572, 576, 346
A.2d 314, 316 (1975)(Dissenting Opinion by HOFFMAN, J.). The
offense is punishable by imprisonment up to 5 years and/or a
fine of up to $15,000. If the jury believes that the accused
merely possessed the marijuana and had no intent to deliver,
the offense is a misdemeanor punishable by up to a year
imprisonment and/or a fine of $5,000. If the jury finds that the
accused possessed or distributed less than thirty grams of
marijuana, the offense is a misdemeanor punishable by up to 30
days' imprisonment and/or a fine of $500. As between section
780-113(a)(30) and section 780-113(a)(16), the critical issue for
the jury to decide is the question of intent. As between section
780-113(a)(30) or section 780-113(a)(16) and section 780-
113(a)(31), the issue to be determined is the quantity
possessed.
Commonwealth v. Wilds, 362 A.2d 273, 277-78 (Pa. Super. 1976)
(footnotes omitted).
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In light of the foregoing case law, it is apparent that where both
subsection (16) and (31) apply, conviction properly rests on the specific
charge found at subsection (31), SAM.
The application of Gordon
concern that Tisdale was not charged with violating subsection (16). To
address this concern, we must look to the application of rules regarding
lesser included offenses.
The trial court correctly noted that Tisdale was not charged with SAM.
However, at his trial de novo, he was also not charged with possession. The
only charge Tisdale faced was for allegedly violating PWID.7 Logically, if it
matters that Tisdale was not charged, de novo, with SAM, then it also
matters that he was not charged with possession. Yet, the trial court found
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7
Because the instant matter was tried de novo, the specifics of the
municipal court trial and the charges Tisdale faced are currently irrelevant.
The effect of a trial de novo is that it supplants any prior decision in toto.
Accordingly, because appellants have perfected their appeals to
the Court of Common Pleas of Allegheny County, the cases have
not
de novo. Id. at ftn. 3. (emphasis added); see
also, Commonwealth v. Moore, 226 Pa.Super. 58, 312 A.2d 422,
426 (1973) (trial de novo
been heard before and as if no decision had been previously
Dissenting and Concurring Opinion).
Commownealth v. Krut, 457 A.2d 114, 116 (Pa. Super. 1983).
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Tisdale guilty of possession. Therefore, distinguishing Gordon on the fact
that Tisdale was not formally charged with SAM is unavailing.
The fact that Tisdale was not formally charged with either possession
or SAM is not dispositive, because both of those charges are lesser included
offenses to PWID.
In the instant case, the offense charged clearly included the
offense of mere possession. Every element of possession is
included within the crime of possession with intent to deliver.
The only element which distinguishes the latter from the former
is the manufacture, delivery, or an intent to manufacture or
deliver. Similarly, possession of a small quantity of
marijuana for personal use would necessarily be included
within the crime of possession with intent to deliver. The
issue, therefore, is whether the evidence at trial would possibly
support both a conviction of the lesser offense of possession of a
small quantity for personal use and an acquittal of possession of
marijuana with intent to deliver.
Commonwealth v. Wilds, 362 A.2d at 278-79 (emphasis added).
Recognizing that both possession and SAM are lesser included offenses
to PWID, we examine how a defendant is charged with a lesser included
offense.
This end has been frequently achieved by the Commonwealth in
one of two ways, namely: (1) they have expressly put the
lly charging him with the less
uncharged, crime is a lesser included offense of the charged, but
unproven, offense as a matter of law.
Commonwealth v. Gouse, 429 A.2d 1129, 1132 (Pa. Super. 1981)
(citation omitted).
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Here, when Tisdale was formally charged with PWID only, he was
implicitly charged with the lesser included offenses of possession and SAM.
Because Tisdale was implicitly charged with the lesser included offenses, he
could be convicted of either of the lesser included offenses, subject to any
other applicable principles of law and evidence.
Instantly, as demonstrated above, the general/specific principle
governs the application of possession and SAM. The evidence, as stipulated
at trial, was that the total amount of marijuana involved was 8.64 grams.8
See N.T., Trial, 3/4/2013, at 30-31. Pursuant to subsection (31), 30 grams
of marijuana or less shall be considered a small amount of marijuana.
Accordingly, because Tisdale was implicitly charged with both possession and
SAM, and the stipulated evidence clearly supports the specific SAM charge,
Tisdale should have been properly convicted of possession of a small amount
of marijuana, 35 P.S. § 780-113(a)(31). We see no reason to draw a
distinction between being formally charged with possession and SAM, as
happened in Gordon, or implicitly charged with those crimes, as happened
here. Treating the two differently would allow the Commonwealth to evade
general/specific rule and would render the legislative intent of a graduated
system of prosecution and punishment all but meaningless in such
situations.
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8
The 12 packets of marijuana, each weighing 0.72 grams, equals 8.64
grams.
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In light of the foregoing, we vacate judgment of sentence for
possession of marijuana and remand to the trial court for entry of a guilty
verdict on the charge of possession of a small amount of marijuana and for
imposition of a new sentence. Additionally, we direct the trial court to
formally dispose of the conspiracy charge.
Judgment of sentence vacated, matter remanded to the Court of
Common Pleas of Philadelphia County for action consistent with this decision.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2014
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