J-A30033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CONRTNEY CARTER
Appellant No. 2760 EDA 2014
Appeal from the Order Dated August 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003029-2013
BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*
DISSENTING MEMORANDUM BY MUNDY, J.: FILED APRIL 18, 2016
I respectfully dissent. I do not agree that the controlled substance
offenses and the firearms crimes were part of the same criminal episode
such that 18 Pa.C.S.A. § 110 bars the prosecution of the firearms offenses
after Appellant was convicted of possessing narcotics. Accordingly, I would
affirm the trial court’s order denying Appellant’s motion to dismiss the
firearms charges under Section 110.
I agree with the Majority that the only issue in this case is whether all
the charges arose out of the same criminal episode. Majority Memorandum
at 6. In determining whether the crimes were part of the same criminal
episode, we must consider both the temporal and logical relationship
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*
Former Justice specially assigned to the Superior Court.
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between the charges. Id. at 9. Offenses are logically related when there is
a substantial duplication of fact and law; a de minimis duplication is not
sufficient. Commonwealth v. Reid, 77 A.3d 579, 582-583 (Pa. 2013).
In determining whether two offenses are logically related, courts must
look to the dual purpose of Section 110, which is “(1) to protect a person
accused of crimes from governmental harassment of being forced to undergo
successive trials for offenses stemming from the same criminal episode; and
(2) as a matter of judicial administration and economy, to assure finality
without unduly burdening the judicial process by repetitious litigation.”
Reid, supra at 583-584, quoting Commonwealth v. Anthony, 717 A.2d
1015, 1018-1019 (Pa. 1998). “These policy concerns must not be
interpreted to sanction ‘volume discounting’ or [] to label an ‘enterprise’ [as]
an ‘episode.’” Id. at 584, quoting Commonwealth v. Nolan, 855 A.2d
834, 840 (Pa. 2004).
In this case, I would not give Appellant a volume discount for separate
and distinct criminal episodes that were not dependent on one another. The
temporal relationship of the two possession offenses is not determinative in
this case. Because possession offenses are inherently ongoing, when the
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police find a defendant in possession of more than one illegal item, the
possession will always be temporally related.1
In my view, the mere fact that police find a person in illegal possession
of more than one item does not necessarily establish that the possession
offenses arose out of the same criminal episode simply because the person
simultaneously possesses illegal contraband and it is seized or discovered at
the same time. Certain factual and legal similarities will usually be present
in simultaneous possession cases. For example, the same officer will usually
seize or discover all items that a defendant is illegally possessing at the one
time. Further, the chain of custody of the evidence and related suppression
issues will likely be the same. These factual and legal similarities will usually
be present simply because a defendant is found in simultaneous possession
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1
I note that I disagree with the Majority that Commonwealth v. Walter
Stewart, 425 A.2d 346 (Pa. 1981), governs this case. Majority
Memorandum at 7. At the time that case was decided, the “same criminal
episode” analysis did not include the logical relationship factor. Instead, the
Walter Stewart Court noted that the possession of heroin and a firearm
arose out of the same criminal episode based only on their temporal
relationship. Walter Stewart, supra at 348 (explaining “the two offenses
… were clearly part of the same ‘episode’: appellant’s crimes consisted of the
possession of heroin and a gun at precisely the same time, 9:20 p.m. on
April 25[]”). Our Supreme Court did not add the logical relationship factor
to the “same criminal episode” analysis until its later decision in
Commonwealth v. Hude, 458 A.2d 177 (Pa. 1983). See Commonwealth
v. McPhail, 692 A.2d 139, 153 (Pa. 1997) (Newman, J., dissenting) (noting,
“in Hude, this Court engrafted a ‘logical relationship’ test to the Section 110
inquiry, drawing from the ‘same transaction’ analysis of compulsory
counterclaims. … Thus, this Court has determined that the definition of the
‘same criminal episode’ is no longer limited to acts that immediately connect
in time[]”).
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of multiple illegal items at one time. However, these are de minimis
similarities that are insufficient to establish a logical relationship. See Reid,
supra at 582-583, quoting Commonwealth v. Bracalielly, 658 A.2d 755
(Pa. 1995). Therefore, in evaluating the logical relationship in simultaneous
possession cases, I would look beyond such de minimis similarities inherent
in the nature of the offenses.
As the Majority notes, the firearms charges do not share any legal
elements with the controlled substances crimes. Majority Memorandum at
14. Moreover, the statutes do not criminalize similar conduct or have the
same purpose. Id.
The certified record indicates there was no nexus between Appellant’s
purchase and possession of crack cocaine and his possession of a gun.
Appellant was in unlawful possession of the firearm before he acquired the
crack cocaine. Appellant did not use the gun during the drug deal. Officer
Burgess, who observed the drug exchange from across the street through
binoculars, did not see a firearm. N.T., 3/20/13, at 13. Rather, the police
were unaware that Appellant had a firearm in his car at the time of his arrest
for purchasing and possessing crack cocaine. Sergeant Ward did not
discover the firearm until the day after Appellant’s arrest, when the police
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conducted an inventory search of his vehicle.2 During his testimony, Officer
Burgess did not testify to observing Appellant making any unusual
movements, or reaching under the driver’s seat before, during, or after the
drug transaction. The firearm was not mentioned during the suppression
hearing in the crack cocaine case. See id. at 4-24. Similarly, evidence of
the drug transaction is not necessary to convict Appellant of the
unauthorized possession of the firearm. Appellant’s possession of the gun
was not a logical step to his acquisition or possession of the drugs.
Additionally, the policies underlying the compulsory joinder rule of
Section 110 weigh against precluding a trial on the firearms offense because
Appellant would get a volume discount for coincidentally having an
unlicensed firearm in his vehicle at the same time he purchased and
possessed crack cocaine. See Reid, supra at 584. Therefore, I would
conclude the crimes were not part of the same criminal episode because the
unauthorized possession of the gun was not connected to illegally possessing
the narcotics in this case.
Based on the foregoing, I would affirm the trial court’s August 14,
2014 order denying Appellant’s motion to dismiss under Section 110. I
respectfully dissent.
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2
That the same officer conducted the inventory search is a coincidence that
does not preclude a second trial on the firearm violations.
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