J-A30033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
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 No(s): CP-51-CR-0003029-2013
BEFORE: MUNDY, JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 18, 2016
Appellant, Conrtney Carter,1 takes an interlocutory appeal from the
order of the Philadelphia Court of Common Pleas denying his motion to
dismiss charges under 18 Pa.C.S. § 110.2 Appellant claims that the pending
*
Former Justice specially assigned to the Superior Court.
1
The record contains discrepancies regarding the spelling of Appellant’s
name as various court documents use the spelling “Conrtney” or “Courtney.”
This memorandum uses “Conrtney,” which conforms with the spelling used
in the trial court’s dockets.
2
The trial court’s order stated that Appellant’s “motion was not frivolous.”
Order, 8/14/14; see also Pa.R.A.P. 313; Pa.R.Crim.P. 587(B)(6) (“If the
judge denies the motion but does not find it frivolous, the judge shall advise
the defendant on the record that the denial is immediately appealable as a
collateral order”); accord Commonwealth v. Barber, 940 A.2d 369, 376
(Pa. Super. 2007).
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prosecution for violations of the Pennsylvania Uniform Act3 (“VUFA charges”)
is barred by his former conviction for possession and purchase of cocaine4
(“narcotics charges”), because all charges arose from the same criminal
episode. We reverse.
The trial court summarized the factual history relevant to this appeal.
This case arose from a narcotics surveillance conducted
by the Philadelphia Police Department (“PPD”) on March
19, 2006, in the area of 4800 Westminster Avenue in
Philadelphia. At approximately 6:15 p.m., Philadelphia
Police Officer [George] Burgess observed a dark colored
Buick, operated by [Appellant], parked on the 4800 block
of Westminster [Avenue].[ ] A man [later] identified as
Paul Lawson (“Lawson”) approached [Appellant] and, after
a brief conversation, [Appellant] handed money to Lawson.
Lawson went into his pocket and handed small objects to
[Appellant]. [Appellant] left the area, headed west on
Westminster Avenue . . . . Sergeant [Michael] Ward of the
PPD stopped [Appellant] at 800 North 50th Street and
recovered two packets of crack cocaine [“from him.” N.T.
Suppression Hr’g, 3/20/13, at 6 (“Suppression
(Narcortics)”). Appellant’s] vehicle was driven to the
police impoundment lot. On March 20, 2006, Sergeant
Ward conducted an inventory search of the Buick and
recovered one nine-millimeter Jennings, semi automatic
firearm.[5]
Trial Ct. Op., 2/20/15, at 2-3 (citations omitted).
On March 19, 2006, a complaint for the narcotics charges was filed,
and that case was docketed at MC-51-CR-0325201-2006. On March 20th, a
3
18 Pa.C.S. §§ 6106(a)(1), 6108.
4
35 P.S. § 780-113(a)(16), (19).
5
The location of the firearm in the vehicle was not established in the record.
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complaint for the VUFA charges was filed, and that case was docketed at
MC-51-CR-0326911-2006. Appellant was released on bail and thereafter
failed to appear for hearings on the matters. Bench warrants were issued,
but Appellant was not taken into custody until October 2012.
The docket sheets indicate the Honorable Joseph C. Waters found
Appellant in contempt on October 12, 2012, and sentenced him to five to ten
days’ imprisonment with immediate parole after five days. Docket, MC-51-
MD-00027772-2012, 2/8/16, at 2. That same day, Judge Waters set bail on
narcotics and VUFA charges, which Appellant posted on October 30th.
Dockets, MC-51-CR-0325201-2006, 2/8/16, at 4 & MC-51-CR-0326911-
2006, 2/8/16, at 4.
On March 5, 2013, the Philadelphia Municipal Court held the VUFA
charges for trial. The following day, that matter was docketed in the
Philadelphia Court of Common Pleas at CP-51-CR-0003029-2013, and the
Commonwealth filed an information on March 15th.
Five days later, on March 20, 2013, Appellant’s narcotics charges
proceeded to a suppression hearing in the Philadelphia Municipal Court.
Katie Perry, Esq., appeared on behalf of Appellant. N.T. Suppression
(Narcotics) at 3. Appellant challenged whether the officers had probable
cause to stop him and recover the cocaine. Id. at 3. Officer Burgess was
the Commonwealth’s sole witness at that hearing, and he described the
suspected narcotics transaction between Appellant and Lawson. Id. at 7-8.
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Appellant stipulated Sergeant Ward stopped him and discovered the cocaine.
Id. at 17. The trial court denied Appellant’s motion to suppress at the
conclusion of the hearing, after which the parties agreed to a bench trial
based on the suppression record. Id. at 23. The court found Appellant
guilty of the narcotics charges and sentenced him to twelve months’
probation. Id. at 24. Appellant took an appeal to the Philadelphia Court of
Common Pleas, but the appeal was quashed on July 25, 2013, with a
notation that it was withdrawn. Dockets, MC-51-0325201-2006 at 6 & CP-
51-CR-0004429-2013, 2/8/16, at 4.
Meanwhile, the VUFA charges proceeded in the Court of Common
Pleas. Following several continuances for Appellant to obtain private
counsel, Appellant’s present counsel, Raymond Driscoll, Esq., entered his
appearance on December 10, 2013, and filed an omnibus pretrial motion
that same day. Counsel requested additional continuances. On May 1,
2014, the Honorable Ann Buchert granted another continuance indicating the
Commonwealth was ready for trial, but it “just passed PARS[6] report of
previously requested related DC#.” Docket, CP-51-CR-0003029-2013,
2/24/15, at 5.
On August 5, 2014, Appellant filed the underlying motion to dismiss
the VUFA charges based on double jeopardy and 18 Pa.C.S. § 110. On
6
“PARS” refers to the Preliminary Arraignment Reporting System, which
contains arrest and investigation reports, as well as other preliminary and
pretrial information.
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August 7th, the trial court held a hearing on the motion. Appellant’s counsel
recited from the “75-49” investigation report for the narcotics charges,
which included statements that Sergeant Ward recovered a firearm from the
Buick. N.T. Mot. to Dismiss Hr’g, 8/7/14, at 5-6. Counsel asserted: (1)
Appellant was convicted for the narcotics charges; (2) the Commonwealth
was aware of the VUFA charges before the trial of the narcotics charges; and
(3) all charges were within the same judicial district. Id. at 6-7. Counsel
averred, “The only area where there’s any argument . . . is whether [the
charges] arise from the same criminal episode” and sought relief based on
Commonwealth v. Walter Stewart, 425 A.2d 346 (Pa. 1981). Id. at 9-
10.
In response, Commonwealth’s counsel argued that Appellant’s
purchase of the “narcotics was a completed transaction, a crime, before the
gun was found.” Id. at 15. Counsel also suggested the narcotics and VUFA
charges were not “linked” based on Appellant’s “very lengthy bench warrant
history.” Id. at 15-16. Counsel, however, did not address the first three
factors mentioned by Appellant’s counsel or dispute the framing of the legal
issue before the trial court.
The trial court took the matter under advisement and on August 14,
2014, denied the motion to dismiss the VUFA charges, but found the motion
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was not frivolous. Appellant timely filed a notice of interlocutory appeal 7 and
a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant presents the following question for review:
[W]as joinder of offenses required pursuant to 18 Pa.C.S.
§ 110 because [A]ppellant was already tried and convicted
for charges arising out of the same criminal episode which
was known to the Philadelphia District Attorney’s Office
and occurred within the same judicial district?
Appellant’s Brief at 4.
The parties’ arguments focus on the single issue developed before the
trial court, namely, whether the narcotics and the VUFA charges arose “out
of the same criminal episode.” See id.; Commonwealth’s Brief at 6.
Appellant relies on Walter Stewart to argue that the narcotics and VUFA
charges should have been joined. Id. at 13. He asserts that the narcotics
and VUFA charges, as in Walter Stewart, arose out of the same criminal
episode because “the same officer recovered both items and the Appellant is
alleged to have possessed both on the same date, at the same time, and at
the same location.” Appellant’s Brief at 12-13.
The Commonwealth responds that the narcotics and VUFA charges
“were neither logically nor temporally related.” Commonwealth’s Brief at 6.
Relying on Commonwealth v. Edward Stewart, 473 A.2d 161 (Pa. Super.
1984), it contends the narcotics and VUFA charges did not share sufficient
logical connections, because they constituted different crimes and Appellant
7
See n.2, supra.
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actually possessed the narcotics, but constructively possessed the firearm.
Id. at 13-14. As to the temporal aspects of the charges, the Commonwealth
emphasizes the evidence that Appellant was in possession of the firearm
before he purchased and possessed the narcotics. Id. at 14. Further, the
Commonwealth notes Appellant was arrested for the narcotics charges on
March 19, 2006, and the firearm was not discovered until the March 20th.
Id. at 15. The Commonwealth thus claims Walter Stewart is
distinguishable. Id. at 14-15.
The Commonwealth also contends the policies of “judicial efficiency
and finality” militate against compulsory joinder. Id. at 6. According to the
Commonwealth, Appellant “demonstrated contempt for, and in fact
undermined, the jurisprudential interest in finality and efficiency” by
absconding and remaining at large for more than six years. Id. at 17. He
“voluntarily prolonged any hypothetical feelings of ‘anxiety and insecurity’ by
his own misconduct.” Id. Further, the Commonwealth did not intentionally
engage in “government harassment,” seek a strategic advantage by trying
the offenses separately, or otherwise prejudice Appellant. Id. at 18-19.
A review of the record and the pertinent law compels the conclusion
that Walter Stewart governs the instant case. For the reasons that follow,
the Commonwealth’s attempts to analyze the issue in this appeal under
Edward Stewart and distinguish Walter Stewart are unconvincing.
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Further, the Commonwealth’s policy-based arguments lack merit. Thus,
relief is due.
“Since the constitutional and statutory claims asserted here are both
purely matters of law, our scope of review is plenary.” Barber, 940 A.2d at
376 (citation omitted). Our standard of review is de novo.
Commonwealth v. Martin, 97 A.3d 363, 364 (Pa. Super. 2014).
Section 110 of the Crimes Code sets forth the compulsory joinder rule,
which 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. § 110(1)(ii) (emphasis added).
The Pennsylvania Supreme Court summarized the framework for
analyzing the single episode requirement as follows:
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In the seminal case of Commonwealth v. Hude, 500 Pa.
482, 458 A.2d 177 (1983), we instructed courts
considering the logical relationship prong to look at the
“temporal” and “logical” relationship between the charges
to determine whether they arose from a “single criminal
episode.” To this end, we noted:
Generally, charges against a defendant are clearly
related in time and require little analysis to
determine that a single criminal episode exists.
However, in defining what acts constitute a single
criminal episode, not only is the temporal sequence
of events important, but also the logical relationship
between the acts must be considered.
Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013) (citations omitted).
[T]he determination of whether the logical relationship
prong of the test is met turns on whether the offenses
present a substantial duplication of issues of fact and
law. Such a determination depends ultimately on how and
what the Commonwealth must prove in the subsequent
prosecution. There is a substantial duplication of issues of
fact if “the Commonwealth’s case rest[s] solely upon the
credibility of [one witness]” in both prosecutions. There is
no substantial duplication if “proof of each individual
instance of [crimes committed] . . . require the
introduction of the testimony of completely different police
officers and expert witnesses as well as the establishment
of separate chains of custody[,]” or if “there were three
victims in three different counties requiring three different
investigations, and different witnesses were necessary at
each trial.” When determining if there is a duplication of
legal issues, a court should not limit its analysis to a mere
comparison of the charges, but should also consider
whether, despite “the variation in the form of the criminal
charges,” there is a “commonality” of legal issues within
the two prosecutions. It should be remembered, however,
“[t]he mere fact that the additional statutory offenses
involve additional issues of law or fact is not sufficient to
create a separate criminal episode since the logical
relationship test does not require an absolute identity of
factual backgrounds.” Finally, in considering the temporal
and logical relationship between criminal acts, we are
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guided by the policy considerations § 110 was designed to
serve, which “must not be interpreted to sanction ‘volume
discounting[,]’ [procedural maneuvering,] or . . . to label
an ‘enterprise’ an ‘episode.’”
Id. at 585-86 (citations omitted).
“The ‘same criminal episode’ analysis cannot be made ‘by merely
cataloguing simple factual similarities or differences between the various
offenses with which the defendant was charged’ . . . .” Id. at 586 (citation
and footnote omitted). Further, “[t]he interpretation of the term ‘single
criminal episode’ must not be approached from a hypertechnical and rigid
perspective which defeats the purposes for which it was created.” Hude,
458 A.2d at 183 (citation omitted).
In Walter Stewart, the defendant “was stopped and frisked by two
police officers on a public street in Lancaster[, who found] a pistol on [the
defendant’s] person and ten glassine packets containing what later proved to
be heroin lying near him on the street . . . .” Walter Stewart, 425 A.2d at
347. The defendant pleaded guilty to carrying a firearm without a license
and was sentenced for that offense. Thereafter, the Commonwealth
proceeded on a possession of heroin charge, and he was convicted of that
offense. Id. at 347-48.
After this Court affirmed the judgment of sentence, the Pennsylvania
Supreme Court granted allowance of appeal in Walter Stewart. Id. at 348.
The Court concluded “the two offenses with which appellant was charged
were clearly part of the same ‘episode’: [the defendant]’s crimes consisted
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of the possession of heroin and a gun at precisely the same time, 9:20 p.m.
on April 25, 1974.” Id. The Walter Stewart Court further rejected the
Commonwealth’s claim that the defendant’s failure to seek consolidation of
the charges waived his double jeopardy claim:
In the interests of both defendants and society, [S]ection
110 of our Crimes Code requires joinder of all charges
arising from the same conduct or criminal episode. Here,
although the Commonwealth had “a clear responsibility to
assist in furthering judicial administration and economy,”
and alone had the ability to act prior to [the defendant’s]
indictment on the second charge, it made no effort to avail
itself of the courses of action provided by that section to
protect these interests. [The defendant] had a right to be
free from successive prosecutions which, in these
circumstances, only the Commonwealth could protect.
This it failed to do.
Id. at 350 (citation omitted).
Conversely, in Edward Stewart, the defendant was arrested and
charged with receiving stolen property based on a theft of tools and supplies
from an auto shop. Edward Stewart, 473 A.2d at 162. Police officers
executed a search warrant on Appellant’s vehicle and seized the tools and
supplies. Id. Additionally, the officers found paraphernalia and suspected
narcotics in luggage and containers inside the vehicle. Id. at 162-63. The
officers obtained a second warrant and seized the narcotics and contraband
the following day. Id. at 163. The defendant was charged and tried for
receiving stolen property, but was acquitted of that charge. Id. Three and
a half months later, the Commonwealth filed a narcotics charge against the
defendant. The defendant filed a motion to dismiss the narcotics charge,
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which the trial court denied, and the defendant took an appeal to this Court.
Id.
The Edward Stewart Court, when affirming the trial court,
distinguished Walter Stewart. Id. at 164. First, the Court determined
there was “no logical relationship between the crimes of theft by receiving
stolen property and possession of a controlled substance,” because the
charges were “defined by separate statutes and . . . intended to prevent
different evils.” Id. The Court emphasized, “A charge of theft by receiving
stolen property, however, is not merely a crime of possession. It is a crime
of theft and can be supported by evidence that it was committed in any
manner constituting theft under the Crimes Code.” Id.
Second, the Edward Stewart Court determined the temporal
relationship between the offenses was “less than clear.” Id. The Court
explained, “The crime of theft by receiving stolen motor oil and mechanic’s
tools had its genesis in an unlawful taking which occurred during the early
evening.” Id. There was no indication in the record that theft and the
possession of narcotics were committed contemporaneously. Id. The Court
thus concluded that the receiving stolen property charge and the possession
of narcotics “were not part of the same criminal episode and were not
rendered part of the same episode merely because the evidence relevant to
both [charges] were found during the same search.” Id.
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Instantly, the Appellant’s narcotics and VUFA charges were closely
related in time. Appellant was driving the Buick and purchased cocaine from
Lawson while remaining inside the vehicle, and then drove away from the
scene. See N.T. Suppression (Narcotics) at 7-8; N.T. Mot. to Dismiss Hr’g at
6; accord Walter Stewart, 425 A.2d at 348. The record established his
possession of the firearm in the vehicle was concomitant with the purchase
and possession of the cocaine. Cf. Edward Stewart, 473 A.2d at 164. All
of the charges continued up to the moment of his arrest, when Sergeant
Ward seized the narcotics, the vehicle, as well as the firearm inside the
vehicle. See Walter Stewart, 425 A.2d at 348.
Moreover, the narcotics and VUFA charges required the testimony from
two police officers, Officer Burgess and Sergeant Ward. Sergeant Ward’s
testimony was crucial in both cases to establish Appellant was in possession
of cocaine and a firearm. Officer Burgess’s testimony was essential to
establish the necessary background that the discovery of all of the narcotics
and the firearm was lawful. No testimony from additional witnesses or
victims was necessary to establish the elements of any of the offenses.
Accordingly, the factual duplication between the narcotics and VUFA charges
was substantial.
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As to the nature of the offenses, the narcotics and VUFA charges
involved continuing possessory offenses.8 See Walter Stewart, 425 A.2d
at 348. Although the elements and policies underlying the narcotics and
VUFA charges are different, a mere list of the elements and policies
underlying the charges alone does not establish distinct “episodes.” See
id.; Reid, 77 A.3d at 585-86. Moreover, the technical differences between
actual and constructive possession do not meaningfully distinguish Walter
Stewart. See Walter Stewart, 425 A.2d at 347 (noting defendant actually
possessed a firearm and narcotics were found on the ground near
defendant).
Thus, the present case is nearly identical to Walter Stewart.
Moreover, the Edward Stewart Court’s focus on the nature of one of the
offenses, i.e., theft by receiving stolen property, as a property offense
renders that case inapposite. See Edward Stewart, 473 A.2d at 164. That
Appellant allegedly possessed the firearm before possessing the cocaine or
that the firearm was not discovered until the following day did not create
separate criminal episodes. Therefore, the narcotics and VUFA charges
arose out of the same criminal episode and the trial court’s conclusion to the
contrary was legal error.
8
Even if the purchase was an isolated event, Appellant’s former conviction
for possession was based on a continuing offense.
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The Commonwealth further asserts the policies underlying 18 Pa.C.S.
§ 110 militate against application of the compulsory joinder rule. However,
the Commonwealth does not allege Appellant engaged in the type of
procedural maneuvering constituting waiver of a defendant’s double
jeopardy rights or otherwise diminished the Commonwealth’s duty to
address double jeopardy issues. See Reid, 77 A.3d at 585-86; Walter
Stewart, 425 A.2d at 348; see also Commonwealth v. Failor, 770 A.2d
310, 315 (Pa. 2001).
Lastly, in light of the parties’ arguments and the record developed in
the trial court, there is no basis to conclude that Appellant failed to meet the
remaining three prongs of 18 Pa.C.S. § 110, namely, that (1) the narcotics
charges constituted a former prosecution that resulted in a conviction; (2)
the VUFA charges were known to the Commonwealth at the time of the trial
of the narcotics charges; and (3) all charges were within the same judicial
district.9 Accordingly, we reverse the order of the trial court denying
Appellant’s motion to dismiss the VUFA charges.
9
There is some authority for the proposition that the Municipal Court
exercised exclusive jurisdiction over the misdemeanor charges, including the
violation of 18 Pa.C.S. § 6108. See 42 Pa.C.S. § 1123(a)(2), (b);
Pa.R.Crim.P. 1001(A). In turn, the Court of Common Pleas exercised
exclusive jurisdiction over the felony violation of 18 Pa.C.S. § 6105(a)(1).
However, when felony and misdemeanor charges arise from the same
criminal episode they should be tried together in the Court of Common
Pleas. See Commonwealth v. Belcher, 335 A.2d 505, 508 n.5 (Pa. Super.
1975). But see Commonwealth v. Beatty, 455 A.2d 1194, 1198 (Pa.
1983) (holding former proceeding on summary offenses in magisterial
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Order reversed. The charges in CP-51-CR-0003029-2013 are
dismissed. Jurisdiction relinquished.
Jenkins, J. joins this Memorandum.
Mundy, J. files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2016
district court did not bar later prosecution in Court of Common Pleas for
misdemeanor offenses); Barber, 940 A.2d at 379-80 (same).
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