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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
J-A30033-15


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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J-A30033-15


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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J-A30033-15


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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J-A30033-15


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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J-A30033-15


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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J-A30033-15


        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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J-A30033-15


         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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J-A30033-15


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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J-A30033-15


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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J-A30033-15


      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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J-A30033-15


       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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J-A30033-15


      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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