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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    BRANDON COFFEY                             :
                                               :
                      Appellant                :   No. 3004 EDA 2016

             Appeal from the Judgment of Sentence August 18, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002281-2016
                                          MC-51-CR-002963-2016


BEFORE:      PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                FILED MARCH 06, 2018

        Appellant, Brandon Coffey, was convicted of possession of a small

amount of marijuana, 35 P.S. § 780-113(a)(31), and possession of a

controlled substance, 35 P.S. § 780-113(a)(16), after he was found to be in

possession of 0.195 grams of marijuana. The court sentenced Coffey to a

term of imprisonment of 11½ to 23 months on the possession of a controlled

substance conviction and imposed no further penalty on the possession of a

small amount of marijuana conviction. Both Coffey and the trial court now1


____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1Curiously, Coffey did not file a post-sentence motion raising the issue now
on appeal. As Coffey’s issue raises a sufficiency of the evidence claim,
however, we find his issue preserved for our review. See Pa.R.Crim.P.
(Footnote Continued Next Page)
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believe that his conviction for possession of a controlled substance was in

error, and ask us to vacate it.

      In contrast, the Commonwealth asks us to overrule prior precedent of

this Court and affirm the conviction. In particular, the Commonwealth

presses us to overrule Commonwealth v. Tisdale, 100 A.3d 216 (Pa.

Super.    2014),     appeal     denied,    113   A.3d   280   (Pa.   2015),   and

Commonwealth v. Gordon, 897 A.2d 504 (Pa. Super. 2006).                  This, of

course, we may not do. See, e.g., Commonwealth v. Pepe, 897 A.2d 463,

465 (Pa. Super. 2006) (“It is beyond the power of a Superior Court panel to

overrule a prior decision of the Superior Court … except in circumstances

where intervening authority by our Supreme Court calls into question a

previous decision of this Court.”) The Commonwealth does not identify any

Supreme Court precedent that calls either decision into question. We are

thus bound to follow them.

      Both decisions found the legislature intended 35 P.S. § 780-

113(a)(31), possession of a small amount of marijuana, to be the exclusive

statutory authority for prosecuting those who possess, with no indication of

intent to deliver, less than 30 grams of marijuana. See Tisdale, 100 A.3d at
(Footnote Continued) _______________________

606(A)(7). While there were no legal consequences for the failure to raise
this issue in a post-sentence motion, it is clear resolution of this case would
have occurred in a more timely fashion if the trial court had been alerted to
this issue prior to appeal. We further recognize that Coffey retained his
current counsel subsequent to the filing of this appeal.




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219 (“it is apparent that where both subsection (16) and (31) apply,

conviction properly rests on the specific charge found at subsection (31)”);

Gordon, 897 A.2d at 509 (“In our view, the General Assembly, by including

subsection (31) … wisely set out the specific crime of possession of a small

amount of marijuana, and created a graduated system of penalties that

imposes far heavier punishment for traffickers and lesser sanctions for

casual users of marijuana.”) As a result, both Coffey and the trial court are

correct in their belief that under Tisdale and Gordon, we must vacate the

judgment of sentence and remand for re-sentencing.

       Even if we had the power to overrule Tisdale and Gordon, we would

not do so. The Commonwealth contends both cases ignored 42 Pa.C.S.A. §

9303    and   are    therefore   invalid.   Section   9303    provides     that    the

Commonwealth may prosecute a defendant “under all available statutory

criminal provisions without regard to the generality or specificity of the

statutes.” This Court has ratified the Commonwealth’s use of this power in

other contexts. See, e.g., Commonwealth v. Kriegler, 127 A.3d 840, 844

(Pa. Super. 2015).

       As the Commonwealth correctly notes, both Tisdale and Gordon rely,

at least partially, upon the specificity of subsection (31) in their holdings. Yet

this does not mean Tisdale and Gordon were wrongly decided. Subsection

(31)   begins:   “Notwithstanding     other   subsections    of   this   section   …”

“Notwithstanding” means “[d]espite; in spite of.” Black’s law Dictionary,


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1094 (8th ed. 2004). This introduction acts to negate the application of any

other subsection in cases where subsection (31) applies. See City of

Philadelphia v. Clement & Muller, Inc., 715 A.2d 397, 399 (Pa. 1998).

Consequently,   even      if   Tisdale’s   and     Gordon’s    reliance   on   the

specific/general rule was misplaced, their shared conclusion, that the

Legislature intended subsection (31) to be the exclusive means to prosecute

the possession of a small amount of marijuana, is undoubtedly correct. The

application of § 9303 does not affect that conclusion in any way.

      As we conclude Coffey and the trial court are correct in their request

for a remand for resentencing, we reverse the conviction for possession of a

controlled substance, and vacate the sentence imposed for possession of a

small amount of marijuana. We remand for resentencing on the conviction

for possession of a small amount of marijuana.

      Convictions affirmed in part and reversed in part. Judgment of

sentence    vacated.   Case      remanded        for   resentencing.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/18



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