J-S13022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DESSIE LEWIS SEATON

                            Appellant               No. 922 WDA 2014


              Appeal from the Judgment of Sentence May 8, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002538-2013


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                             FILED JUNE 22, 2015

       Appellant, Dessie Lewis Seaton, appeals from the May 8, 2014

aggregate judgment of sentence of five to 12 years’ incarceration, imposed

following his conviction by a jury of possession with intent to deliver a

controlled substance (heroin), possession of drug paraphernalia, and

criminal conspiracy.1 After careful review, we affirm Appellant’s convictions

based on the comprehensive and well-supported opinion of Judge John J.

Trucilla.   However, because of our sua sponte review of the legality of

Appellant’s sentence, we are constrained to vacate his sentence and remand

for resentencing.



____________________________________________
1
  35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 18 Pa.C.S.A. § 903(c),
respectively.
J-S13022-15


        In its August 1, 2014 opinion, the trial court has provided a thorough

summary of the factual and procedural history of this case, which we need

not fully reiterate here.       Of import to the instant appeal, we note, in a

separate case at CP-25-CR-0003652-2012, Appellant and others were

charged on November 9, 2012, with PWID, conspiracy and related offenses

in connection with a search of a vehicle wherein 49.9 grams of heroin was

seized.    Appellant was convicted of those charges on May 23, 2013, and

sentenced on July 19, 2013.2 Further investigation by the police of the wider

activities of Appellant and others led the police to execute a search warrant

on November 9, 2012, for an apartment at 1696 Treetop Drive in Millcreek

Township. From the apartment, police seized 69.1 grams of heroin.

        In connection with that contraband, Appellant was subsequently

charged in the instant case with the aforesaid crimes on September 25,

2013.     Immediately prior to trial, Appellant made an oral motion for

dismissal on double jeopardy and compulsory joinder grounds, averring the

instant charges were the same, or were derived from the same criminal

episode, as those for which he was sentenced on July 19, 2013. The trial

court denied the motion and Appellant proceeded to a jury trial, commencing

____________________________________________
2
  Appellant’s appeal from that sentence was dismissed for failure to file a
brief, but the trial court reinstated his appeal rights. See Commonwealth
v. Seaton, --- A.3d ---, 1238 WDA 2014, (unpublished memorandum at 3,
n.2). Appellant’s conviction was affirmed but his sentence vacated on the
same grounds we develop herein. Id. at 10.



                                           -2-
J-S13022-15


on March 10, 2014. On March 11, 2014, the jury convicted Appellant on all

counts. The trial court sentenced Appellant on May 8, 2014.3 Appellant filed

a timely notice of appeal on June 4, 2014.4

       On appeal, Appellant raises a single issue for our review.

              Did the Commonwealth’s prosecution of this case
              constitute a violation of the double jeopardy rule
              when the police charged [Appellant] with a drug
              charge on the same date that they obtained a
              search warrant for this case?

Appellant’s Brief at 1.

       Appellant contends a violation of his constitutional and statutory

rights against double jeopardy resulted from the instant prosecution

because, “the charges were the same in both of [his] case[s, and] that

the police have a duty to find all the evidence against a person prior to

charging that person.”         Id. at 4.       Appellant essentially argues that his

possession of the 49.9 grams of heroin seized from the vehicle and his




____________________________________________
3
  On May 16, 2014, Appellant filed a pro se motion for reconsideration of
sentence which the clerk of courts forwarded to counsel per Pennsylvania
Rule of Criminal Procedure 576(a)(4) on May 19, 2014. No counselled
motion was filed.
4
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                           -3-
J-S13022-15


possession of 69.1 grams of heroin seized from the apartment stemmed

from a single criminal act or episode.5 Id. at 4-5.

       The following principles guide our review of these issues. “It is well-

settled that [a]n appeal grounded in double jeopardy raises a question of

constitutional law.         This [C]ourt’s scope of review in making a

determination on a question of law is, as always, plenary.          As with all

questions of law, the appellate standard of review is de novo ….”

Commonwealth v. Martin, 97 A.3d 363, 364 (Pa. Super. 2014)

(internal quotation marks and citation omitted).
____________________________________________
5
  In his Rule 1925(b) statement, Appellant asserted error based on State
and Federal constitutional double jeopardy grounds as well as grounds based
on 18 Pa.C.S.A. §§ 109 and 110. Appellant’s Concise Statement of Errors
Complained of on Appeal, 6/20/14, at 2. In his appellate brief, however,
Appellant does not advance any argument relative to Section 110. See
Appellant’s Brief. Accordingly, this basis for Appellant’s claim is waived.
See generally Pa.R.A.P. 2116, 2119(a). The trial court has included a
discussion of this issue in its Rule 1925(a) opinion, which we adopt, so we
include our standard of review for context and completeness.

       Additionally, we note that Appellant’s remaining issues on appeal could
be found waived for failure to sufficiently argue his positions in his appellate
brief. Relative to these issues, beyond citation to basic double jeopardy
principles, Appellant includes no development of the facts of this case as
they apply to his claim of error or other citations to authority. See
Appellant’s Brief at 3-4. Our Supreme Court held such briefing deficiencies
may result in waiver of an issue on appeal. See Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating, “where an appellate brief
fails to provide any discussion of a claim with citation to relevant authority
or fails to develop the issue in any other meaningful fashion capable of
review, that claim is waived”), cert. denied, Johnson v. Pennsylvania, 562
U.S. 906 (2010). As noted above, however, the trial court has adequately
addressed the merits of Appellant’s issues on appeal, and we adopt the trial
court’s reasons as our own for purposes of our disposition.


                                           -4-
J-S13022-15


           The double jeopardy protections afforded by the
           United States and Pennsylvania Constitutions are
           coextensive and prohibit successive prosecutions and
           multiple punishments for the same offense. The
           prohibition against double jeopardy protects against
           a second prosecution for the same offense after
           acquittal, a second prosecution for the same offense
           after conviction, and multiple punishments for the
           same offense. … The constitutional prohibition of
           double jeopardy also protects the convicted
           defendant from multiple prosecutions for the same
           offense, requiring a “single criminal episode”
           analysis.

Commonwealth v. Miskovitch, 64 A.3d 672, 685-686 (Pa. Super. 2013),

quoting Commonwealth v. States, 891 A.2d 737, 741–42 (Pa. Super.

2005) (internal citations omitted), appeal denied, 78 A.3d 1090 (Pa. 2014).

           The language of [18 Pa.C.S.A. §] 109 is plain and
           unambiguous: when a prosecution is for a violation
           of the same provision of the statutes and is based
           upon the same facts as the former prosecution, it is
           barred by such former prosecution. Because the
           introductory paragraph to [S]ection 109 uses the
           word “and,” [S]ection 109 applies when subsequent
           charges are for a violation of the same provision of
           the statutes and are based on the same facts as the
           former charges.

Commonwealth v. Schmidt, 919 A.2d 241, 250 (Pa. Super. 2007)

(internal quotation marks and citations omitted), appeal denied, 936 A.2d 40

(Pa. 2007). Additionally, “[o]ur standard of review of issues concerning [18

Pa.C.S.A. §] 110 is plenary.”   Commonwealth v. George, 38 A.3d 893,

896 (Pa. Super. 2012) (citation omitted). “The compulsory joinder statute[,

Section 110,] is a legislative mandate that a subsequent prosecution for a

violation of a provision of a statute that is different from a former

                                    -5-
J-S13022-15


prosecution, or is based on different facts, will be barred in certain

circumstances.” Commonwealth v. Fithian, 961 A.2d 66, 71 (Pa. 2008).

            The compulsory joinder rule bars a subsequent
            prosecution if each prong of the following test is
            met: (1) the former prosecution resulted in an
            acquittal or conviction; (2) the current prosecution
            was based on the same criminal conduct or arose
            from the same criminal episode; (3) the prosecutor
            in the subsequent trial was aware of the charges
            before the first trial; and (4) all charges were within
            the same judicial district as the former prosecution.

Commonwealth v. Nolan, 855 A.2d 834, 839 (Pa. 2004) (footnote and

citations omitted)

            [S]ection 110 and constitutional double jeopardy
            protection are not co-extensive. While many of the
            same policies underlie the statutory and constitution
            provisions, they are not identical. In some ways
            Section 110 offers broader protection against a
            successive prosecution than does double jeopardy.
            For instance double jeopardy acts to prevent
            successive prosecutions for the “same offense” while
            section 110 extends protection to the “same criminal
            episode.” In defining what constitutes the same
            criminal offense for double jeopardy purposes, the
            United States Supreme Court has declined to find
            that offenses are the same and thereby barred by
            double jeopardy merely because they are part of the
            same criminal episode. In contrast section 110(i)(ii)
            bars a subsequent prosecution if it is based on the
            same criminal episode as the former prosecution. …
            [O]ffenses which are part of the same criminal
            episode, must be logically related temporarily and
            physically, share common issues of fact or involve
            offenses which are necessary steps to the completion
            of others or even which involve attempts to conceal
            previous offenses. Thus, the same criminal episode
            may include offenses which constitute a continuing
            criminal scheme although they involve different
            statutory elements such that each charge requires

                                     -6-
J-S13022-15


            proof of a fact the other does not. Under section 110
            subsequent prosecution involving the “same criminal
            episode” would be barred. In contrast, under the
            double jeopardy clause offenses stemming from the
            same criminal episode would be barred only if the
            prosecution needed to establish conduct in the
            subsequent prosecution which had already formed
            the basis of the prior prosecution.

Commonwealth v. Bellezza, 603 A.2d 1031, 1038 (Pa. Super. 1992)

(citations omitted).

                  [Relative     to    the    “same      criminal
            conduct/episode” prong, our Supreme Court]
            instructed courts considering the [“same criminal
            conduct/episode”] prong to look at the “temporal”
            and “logical” relationship between the charges to
            determine whether they arose from a “single criminal
            episode.” …

                   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.

                 With regard to the logical relationship, [our
            Supreme Court] noted:

                  In ascertaining whether a number of statutory
            offenses are “logically related” to one another, the
            court should initially inquire as to whether there is a
            substantial duplication of factual, and/or legal issues
            presented by the offenses. If there is duplication,
            then the offenses are logically related and must be
            prosecuted at one trial. The 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.”

                                     -7-
J-S13022-15



                                     …

                  [I]n determining if the “logical relationship”
           prong of the test has been met, we must ... be
           aware that a mere de minimis duplication of factual
           and legal issues is insufficient to establish a logical
           relationship between offenses. Rather[,] what is
           required is a substantial duplication of issues of law
           and fact.

                                     …

           In our consideration of the temporal and logical
           relationship between the criminal acts, we are guided
           by the policy considerations that § 110 was designed
           to serve:

           (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.

                                     …

            [T]he “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[,]
           even if the offenses at issue constitute an enterprise.
           A proper analysis requires courts to determine
           whether there is a substantial duplication of issues of
           fact and law.

Commonwealth v. Reid, 77 A.3d 579, 582-583, 586 (Pa. 2013) (internal

quotation marks, citations, and footnote omitted).     “Consideration of the

constitutional protections contained in the double jeopardy clauses is




                                    -8-
J-S13022-15


necessary    where    the   statutory    provisions   relating   to   subsequent

prosecutions are not applicable.” Schmidt, supra at 250 (citation omitted).

      We have carefully reviewed the record and conclude that the trial

court’s August 1, 2014 Rule 1925(a) opinion fully sets forth Appellant’s

claims, identifies the proper standard of review, discusses the relevant law,

analyzes the evidence adduced at trial, and explains the basis for its

conclusion that Appellant’s double jeopardy and compulsory joinder claims

are without merit.      We conclude that the thorough and well-reasoned

opinion of Judge John J. Trucilla is in agreement with our own views.

Specifically, we agree that offenses, although brought under identical

statutory provisions, stemmed from discrete criminal episodes, being both

logically and temporally distinct.   See Reid, supra. Additionally, we agree

with Judge Trucilla that the Commonwealth was not aware of Appellant’s

involvement with the contraband in the instant case prior to his first

conviction. See Nolan, supra. Based on the foregoing, we conclude the

trial court did not err in denying Appellant’s oral motion to dismiss and

affirm the jury verdict in this case. In so holding, we adopt Judge Trucilla’s

August 1, 2014 opinion as our own for purposes of disposition of Appellant’s

statutory and constitutional double jeopardy claims.

      Notwithstanding our disposition of Appellant’s issues on appeal, we are

constrained to address a legality of sentencing issue sua sponte.           “[A]

challenge to the legality of the sentence can never be waived and may be


                                        -9-
J-S13022-15


raised by this Court sua sponte.” Commonwealth v. Wolfe, 106 A.3d 800,

801 (Pa. Super. 2014).            As noted above, the trial court imposed a

mandatory minimum sentence of five years’ incarceration based on the

weight of the heroin possessed pursuant to 18 Pa.C.S.A. § 7508(a)(7)(ii).6

____________________________________________
6
    The statute provides as follows.

              § 7508.        Drug     trafficking      sentencing   and
              penalties

              (a) General rule.--Notwithstanding any other
              provisions of this or any other act to the contrary,
              the following provisions shall apply:

                                               …

                     (7) A person who is convicted of violating
                     section 13(a)(14), (30) or (37) of The
                     Controlled Substance, Drug, Device and
                     Cosmetic Act where the controlled substance
                     or a mixture containing it is heroin shall, upon
                     conviction, be sentenced as set forth in this
                     paragraph:

                                                   …

                            (ii) when the aggregate weight of the
                            compound or mixture containing the
                            heroin involved is at least 5.0 grams but
                            less than 50 grams: a mandatory
                            minimum term of three years in prison
                            and a fine of $15,000 or such larger
                            amount as is sufficient to exhaust the
                            assets utilized in and the proceeds from
                            the illegal activity; however, if at the
                            time of sentencing the defendant has
                            been      convicted   of   another   drug
                            trafficking    offense:   a    mandatory
                            minimum term of five years in prison and
(Footnote Continued Next Page)

                                          - 10 -
J-S13022-15


In light of recent precedent interpreting the import of the United States

Supreme Court’s ruling in Alleyne v. United States, 133 S. Ct. 2151

(2013), we conclude the trial court imposed an illegal sentence.            See

generally Commonwealth v. Newman, 99 A.3d 86, 89 (Pa. Super. 2014)

(en banc); Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014);

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014).

             [I]ssues pertaining to Alleyne go directly to the
             legality of the sentence. [] A challenge to the
             legality of a sentence … may be entertained as long
             as the reviewing court has jurisdiction. [] [I]f no
             statutory authorization exists for a particular
             sentence, that sentence is illegal and subject to
                       _______________________
(Footnote Continued)
                             $30,000 or such larger amount as is
                             sufficient to exhaust the assets utilized in
                             and the proceeds from the illegal
                             activity;

                                                 …

             (b) Proof of sentencing.--Provisions of this section
             shall not be an element of the crime. Notice of the
             applicability of this section to the defendant shall not
             be required prior to conviction, but reasonable notice
             of the Commonwealth’s intention to proceed under
             this section shall be provided after conviction and
             before sentencing. The applicability of this section
             shall be determined at sentencing. The court shall
             consider evidence presented at trial, shall afford the
             Commonwealth and the defendant an opportunity to
             present necessary additional evidence and shall
             determine, by a preponderance of the evidence, if
             this section is applicable.

                                                 …

18 Pa.C.S.A. § 7508.


                                           - 11 -
J-S13022-15


              correction. An illegal sentence must be vacated.
              Issues relating to the legality of a sentence are
              questions of law[.] … Our standard of review over
              such questions is de novo and our scope of review is
              plenary.

Fennell, supra at 15 (internal quotation marks and citations omitted).

     The Newman and Valentine panels concluded that unconstitutional

portions of the similarly structured mandatory sentencing statutes at 42

Pa.C.S.A. §§ 9712, 9712.1, and 9713 were “essentially and inseparably

connected,”    rendering the    statutes   unconstitutional   in their    entirety.

Newman, supra at 101; Valentine, supra at 811. “Moreover, Newman

makes clear that ‘it is manifestly the province of the General Assembly to

determine what new procedures must be created in order to impose

mandatory      minimum    sentences   in   Pennsylvania   following      Alleyne.’”

Valentine, supra at 812, quoting Newman, supra at 102.

     In Fennell, this Court, following the reasoning set forth in Newman

and Valentine, found section 7508 to be facially unconstitutional and

mandatory sentences imposed thereunder to be illegal even where the fact

triggering the imposition of the mandatory minimum, to wit the weight of

the drugs possessed by the defendant, was, as was the case here, stipulated

to at trial. Fennell, supra at 20; accord Commonwealth v. Vargas, 108

A.3d 858, 876 (Pa. Super. 2014) (en banc). Accordingly, we are constrained

to vacate the May 8, 2014 judgment of sentence and remand for

resentencing in accordance with this memorandum.


                                      - 12 -
J-S13022-15


      In sum, we conclude the trial court committed no error in denying

Appellant’s oral motion for dismissal based on constitutional and statutory

double jeopardy grounds.    Accordingly, we affirm appellant’s conviction.

However, we vacate the May 8, 2014 judgment of sentence as illegal, and

remand for resentencing, without consideration of the mandatory minimum,

consistent with this memorandum.

      Judgment of sentence vacated.         Case remanded.      Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2015




                                   - 13 -
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    COMMONWEALTH OF PENNSYLVANIA                                  : IN THE COURT OF COMMON PLEAS
                                                                    OF ERIE COUNTY PENNSYLV ANI
            v.                                                      CRIMINAL DIVISION

    DESSIE L. SEATON                                               No. 2538-2013

                                            MEMORANDUM OPINION

            August 1, 2014: This matter is before the Court upon DessieL, Seaton's (Al?l?ellanf~) , .
                                                                                                      ;11 ;:; ~ ::_-: :--:

Complained of on Appeal, in accordance with Pa.R.A.P. 1925(b). Appellant com~lieg;and..filec:L;'
                                                                                                      ;~,t:
    appeal of his judgment of sentence. Appellant was ordered to file a Concise Statetii..~!iJ,:MItt.torsS!,7
                                                                                                                 ~·5   :.::

                                                                                 (~i ls~;· '.;::- _-:::, ;?;?
his timely statement on June 20, 2014. In his sole issue raised on appeal, App~lJln,l:Ctaimfthe(.                 :._.,1
                                                                                   --1
                                                                                   (/;.
                                                                                             '
                                                                                                   . ~ .t>~"··:./
                                                                                                  ..:;-,


prosecution of the charges in the instant case violated the compulsory joinder rule and p~ed{/

him in double jeopardy due to his previous conviction at Criminal Docket 3652 of 2012.

(Appellant's Statement of Matters Complained of on Appeal at 15). This opinion, pursuant to

Pa.R.A.P. 1925(a), demonstrates that Mr. Seaton's appeal should be dismissed.



                                 FACTUAL AND PROCEDURAL HISTORY

            A.       Procedural History

                     1. Criminal Docket Number 3652 of 2012

            Following a search of a vehicle in which Appellant was present, 49.9 grams of heroin

was seized. Appellant and two others were arrested on November 9, 2012, and Appellant was

subsequently charged with Possession with Intent to Distribute, Possession, and Criminal

Conspiracy to distribute heroin (49.9 grams). 1 A three-day jury trial was held before the

Honorable John Garhart commencing May 20, 2013. On May 23, 2013, the jury returned a

verdict of guilty on all counts. On July 19, 2013, Judge Garhart sentenced Appellant to three to


1
    In violation of 35 P.S. § 780-l 13(a)(30), 35 P.S. § 780-l 13(a)(l 6), and 18 Pa.C.S. § 903(c).

                                                              1


                                                                                                                                   3lo
                                                                                           Circulated 05/27/2015 09:11 AM




    ten years of incarceration on the charge of Possession with Intent to Distribute, and a concurrent

    term of two to ten years of incarceration on the charge of Conspiracy.2 Appellant appealed on

    July 31, 2013. On July 3, 2014, the Superior Court dismissed the appeal due to Appellant's

    failure to file a brief. Currently, there is a pending motion to reinstate Appellant's right to appeal

nunc pro tune before Judge Garhart.



                   2. Criminal Docket Number 2538 of 2013

           On September 25, 2013, Appellant was charged by criminal information with violations

of Criminal Conspiracy to Possess with Intent to Deliver Heroin ( 69 .1 grams), Possession with

                                                                                                        3
Intent to Deliver Heroin ( 69 .1 grams), Possession and Possession of Drug Paraphernalia.                   These

charges stemmed from a search warrant issued November 9, 2012 to search an apartment located

at 1696 Treetop Drive, Apartment 14B, Millcreek Township, Pennsylvania (hereinafter "the

Granada Apartment").        This search warrant followed Appellant's arrest in connection with the

charges at Docket 3652 of 2012.

           A jury trial was scheduled for March 10, 2014. Previous to the selection of jurors,

Appellant presented the Court with an oral Motion to Dismiss. Appellant claimed the instant

prosecution, premised on the seizure of 69.1 grams of heroin and assorted drug paraphernalia,

constituted double jeopardy and violated his constitutional protections.4 Following argument

from counsel, the Court subsequently denied Appellant's motion on the basis, inter alia, that he

was charged for "two separate, isolated incidents and arguably separate conspiracies as well."

(Notes of Testimony "N.T." March 10, 2014 at 12).

2
  The penalty for Possession merged with Possession with Intent to Distribute for sentencing purposes.
3
  In violation of 18 Pa.C.S. § 903(c), 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), and 35 P.S. § 780-
l 13(a)(32), respectively.
4
  Contravening the Double Jeopardy clauses of the United States and Pennsylvania Constitutions. See U.S. Const.
Amend. V; Pa. Const. Art. I,§ 10.

                                                        2
                                                                              Circulated 05/27/2015 09:11 AM




        The case proceeded to a two-day jury trial. On March 11, 2014, the jury returned a

verdict of guilty on all counts. On May 8, 2014, Appellant was sentenced as follows:

        Count One (Possession with Intent to Deliver): Incarceration for a mandatory minimum

period of five years to a maximum period of twelve years, consecutive to Docket 3652 of 2012,

plus fines and costs.

        Count Two (Criminal Conspiracy): Incarceration for a minimum period of three and a

half years to a maximum period of seven years, concurrent to count one, plus costs.

        Count Three (Possession): Merged with Count One.

        Count Four (Possession of Drug Paraphernalia):   Incarceration for a minimum period of

three months to a maximum period of twelve months, concurrent to count one, plus costs.

        Consequently, Appellant was sentenced to an aggregate term of incarceration of five to

twelve years. Appellant's sentence is consecutive to the aggregate sentence of three to ten years

at Docket 3652 of 2012.

        On June 4, 2014, Appellant filed the instant notice of appeal. This Court subsequently

ordered Appellant to file a Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.

1925(b ). On June 20, 2014, Appellant filed a Statement of Matters Complained of on Appeal

raising one issue for this Court's review.




       B.      Factual History

               1. Criminal Docket Number 3652 of2012 (49.9 grams of heroin)

       At the trial commencing May 20, 2013, the Commonwealth presented the testimony of

Jamal Hokes, Danny Keefer, Lieutenant Michael Nolan of the Erie Police Department, Detective




                                                3
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Jon Reddinger of the Erie County District Attorney's Office, and Detective Greg Acri of the Erie

County District Attorney's Office.

        The testimony from that trial established that on November 8, 2012, Jamal Hokes was

contacted by R.J. Kemp to transport drugs from Detroit to Erie on behalf of Appellant. (See N.T.

May 20, 2013 at 36-38). Mr. Hokes then went to R.J. Kemp's house in Detroit where Appellant

personally delivered a Lorna Doane cookie box with 49.9 grams of heroin inside of it. (Id. at 38-

40; see also N.T. May 21, 2013 at 18).

        Mr. Hokes and Appellant subsequently travelled together from Detroit to Erie, arriving at

the train station in Erie on November 9, 2012. (N.T. May 20, 2013 at 40-42). Appellant

arranged for them to be picked up by Danny Keefer. (Id. at 42, 70-71). Awaiting Appellant's

arrival were Lieutenant Nolan and Detective Reddinger, who were conducting surveillance of the

area pursuant to a tip from a confidential informant. (Id. at 100-01; N.T. May 21, 2013 at 4-5).

Mr. Keefer picked up Mr. Hokes and Appellant and subsequently stopped at the nearby Country

Fair. (N.T. May 20, 2013 at 43, 73).

       While at the Country Fair, Mr. Keefer's car was subject to an investigatory stop by

Lieutenant Nolan and Detective Reddinger. (Id. at 105-06). After locating a small amount of

heroin on the person of Mr. Keefer, Mr. Keefer told Lieutenant Nolan that Mr. Hokes and

Appellant were his drug suppliers. (N.T. May 20, 2013 at 107). A drug dog was called in to

detect any additional drugs. (N.T. May 21, 2013 at 7). The car was subsequently searched, and

Detective Reddinger located a black suitcase and a blue duffel bag in the trunk. (Id.) Within the

blue duffel bag, Detective Reddinger found the Lorna Doane cookie box, which contained 49.9

grams of heroin. (Id. at 8-9). Appellant was subsequently arrested.




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               2. Criminal Docket Number 2538 of 2013 (69.1 grams of heroin)

        At the March 10, 2014 trial before this Court, the Commonwealth presented the

testimony of Richard Kemp, Danny Keefer, Detective Adam Hardner of the Millcreek Police

Department, Lieutenant Michael Dougan of the Millcreek Police Department, Detective Jon

Reddinger of the Erie County District Attorney's Office, and Lieutenant Michael Nolan of the

Erie Police Department.   Collectively, they testified that a search of the Granada Apartment

yielded 69 .1 grams of heroin, two digital scales, and plastic baggies, indicating evidence of a

drug operation. Further, the Commonwealth's witnesses disclosed that the heroin came from

Detroit, Michigan and the Granada Apartment, rented in Mr. Keefer's name, was used as a

holding location for the heroin.

       The Commonwealth first called Richard Kemp, who was charged as a co-conspirator.

Richard Kemp testified that he was originally from Detroit and had known Appellant for fifteen

years. (N.T. Day One at 35-36). Richard Kemp testified that in March of 2012 he was recruited

by Appellant to sell heroin in Erie, Pennsylvania. (Id. at 39-40). Mr. Kemp would travel by

train to Erie to stay at the Granada Apartment a week at a time and sell heroin during the course

of that week. (Id at 40-41 ). Richard Kemp testified that only Appellant brought the heroin from

Detroit to Erie and that it would be prepackaged upon his arrival. (Id at 42). According to

Richard Kemp's testimony, Appellant also recruited Richard Kemp's little brother, R.J. Kemp,

and Jamal Hokes from Detroit to sell heroin in Erie. (Id at 41 ). He indicated that once every

three weeks, one of the three would travel from Detroit to Erie to sell heroin. (Id). The heroin

would be supplied by Appellant. (Id at 40).

       Beginning in July 2012, Mr. Kemp began selling heroin from the Granada Apartment.

(Id at 41-42). Mr. Kemp testified that Appellant arranged for Danny Keefer, a heroin addict



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from Erie, to rent the apartment in exchange for heroin. (Id. at 43, 45).   Mr. Keefer also acted

as a runner for the group. (Id.). Mr. Keefer and another runner, not named, were the only

individuals who would interact with potential buyers and would meet and sell heroin to them at a

location other than the Granada Apartment. (Id. at 44-45). Appellant would provide Richard

Kemp, R.J. Kemp and Jamal Hokes with heroin from Detroit. One of them would stay at the

Granada Apartment in Erie for a week at a time and store the heroin there. They would further

arrange to sell the heroin to their buyers and send Mr. Keefer or their other runner to complete

the transaction and deliver the heroin at a location outside of the Granada Apartments. The

Granada Apartment served as both a stash house for the heroin and a place for the revolving door

of heroin dealers from Detroit to stay while selling heroin in Erie.

        Richard Kemp provided further details of the conspiracy. He described Appellant as the

"boss" who set up the rules for the criminal operation. (Id. at 50-51). Mr. Kemp testified that

they sold the heroin for $200 per gram. (Id. at 48). Mr. Kemp would take his amount of the

proceeds and give the rest to Appellant. (Id. at 49). Mr. Kemp claimed he would make between

$1,500 and $3,000 a week and estimated Appellant's share as up to $15,000 a week. (Id. at 67).

       Richard Kemp also testified to the events of October 28, 2012. Mr. Kemp arrived in Erie

four to five days prior to October 28, 2012 to prepare for the first of the month, when many of

their customers would receive checks. (See id. at 45-46). Appellant had provided Mr. Kemp

with 100 grams of heroin to sell that he brought to Erie from Detroit. (Id. at 4 7). This heroin

was brought to Erie from Detroit the last week of October 2012 and was different from the 49.9

grams of heroin in the Lorna Do one cookie box brought by Appellant and Jamal Hokes to Erie

on November 9, 2012. (See id. at 46). As discussed infra, Appellant was prosecuted separately

for this amount. Mr. Kemp testified that he only sold 15 or 20 grams of the 100 grams of heroin



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because "one of the runners got picked up by the police" and "she was going to tell on

everything."   (Id at 49). Therefore, fearing arrest, he left the Granada Apartment on October 28,

2012, leaving approximately 70 grams of heroin behind. (Id. at 49, 51 ). He left the heroin in a

closet "on some clothes." (Id. at 49-50). He explained that he did not want to take the heroin

with him because he feared he would owe Appellant the money for it ifhe did. (Id. at 50). This

testimony also clearly established that the source of the 100 grams of heroin was completely

separate and distinct from the 49.9 grams of heroin later found in the Lorna Doone cookie box.

        Following Appellant's arrest, Mr. Kemp admitted to having called Appellant in prison to

ascertain the name and contact information of Appellant's supplier in Detroit so as to continue

their criminal operation. (See id. at 52-56, 68). Mr. Kemp called Appellant on November 12,

2012 and November 13, 2012 and the recordings of the phone calls were admitted into evidence

as Commonwealth's Exhibits lB and lA, respectively. (Id. at 55-60).

        The Commonwealth next called Danny Keefer. Mr. Keefer, a native of Erie, testified that

he rented the Granada Apartment in his name from July to November of 2012 based on an

agreement with Appellant that Appellant would provide him heroin in return. (Id. at 69-70). Mr.

Keefer admitted that he is a heroin addict and claimed he wanted heroin "as much as possible."

(Id. at 70-74). Consequently, he agreed to also act as a drug runner for Appellant in return for

heroin. (See id. at 76). When a buyer would call Richard Kemp, R.J. Kemp or Jamal Hokes to

ask for heroin, Mr. Keefer would deliver the heroin to the purchaser and return the money to

whichever other coconspirator was staying at the Granada Apartment. (Id.) Mr. Keefer testified

that the sole purpose of renting the Granada Apartment was to facilitate the sale of heroin in Erie.

(Id at 70). Mr. Keefer claimed he paid rent and utilities with money given to him by Appellant.

(Id. at 71). He testified Appellant would come into town once every two to three weeks, and that



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he would provide Appellant with transportation.       (Id. at 71-73 ). Mr. Keefer testified that he

would be present when Appellant would collect money from Richard Kemp, R.J. Kemp and

Jamal Hokes. (/d. at 73). He claimed he was given information about the criminal operation on

a "need to know" basis. (Id.).

           The Commonwealth subsequently called Detective Adam Hardner of the Millcreek

Police Department to testify. Detective Hardner has been an officer of the Millcreek Police

Department for eight years and served with the Special Investigations Unit in Narcotics for the

past two years. (Id. at 81-82). Detective Hardner testified that he executed a search warrant on

the Granada Apartment on November 9, 2012. (Id. at 82). The apartment consisted of one

bedroom, a kitchen, living room and bathroom. (Id. at 83). Detective Hardner testified that

through his search he found fourteen plastic sandwich bags filled with heroin in the bedroom

closet, a U.S. Balance digital scale in the kitchen cabinet, a A.W.S. 100 digital scale in a kitchen

drawer, and plastic sandwich bags on the kitchen counter. (Id. at 84-89; see also Comm.'s Ex. 4-

9). A stipulated lab report from the Pennsylvania State Police by Ted Williams shows that the 14

plastic bags contained a total of 69 .1 grams of heroin. (Id. at 92; see also Comm.' s Ex. 11 ).

           The Commonwealth next called Detective Jon Reddinger of the Erie County District

Attorney's Office to testify. Detective Reddinger has served with the District Attorney's office

for seven years and has been a police officer for fifteen years. (Id. at 104). Detective Reddinger

recorded Appellant's telephone conversations while in prison. (Id.). Detective Reddinger

identified a third recorded telephone call wherein Appellant stated "they hit Rich's apartment"

and "Danny's told." (See id. at 104-107; see also Comm.'s Ex. lC). These statements were

admitted to establish Appellant's knowledge and insight regarding the conspiracy to sell heroin

in Erie.



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        Next, the Commonwealth called Lieutenant Michael Dougan of the Millcreek Police

Department. Lieutenant Dougan has served with the Millcreek Police Department for thirty-two

years and is in charge of the evidence section within the investigative services division of the

department. (Id. at 94). Lieutenant Dougan testified that part of his duties includes the recovery

and documentation of latent fingerprint evidence at crimes scenes, which he has processed in

close to 1,500 cases. (Id. at 95). Lieutenant Dougan testified that he processed the fingerprints

lifted from the evidence recovered from the Grenada Apartment, totaling 29 items. (Id. at 96).

Lieutenant Dougan testified that of the eight identifiable latent fingerprints, one was identified as

a fingerprint of Jamal Hokes and the remainder were identified as fingerprints of Richard Kemp.

(Id. at 99-100; see also Comm.' s Ex. 12). Lieutenant Dougan stated that none of the items has

Appellant's fingerprints on them. (Id. at 100). Additionally, Lieutenant Dougan stated that they

were unable to lift any fingerprints off the plastic bags containing heroin. (Id. at 100-01).

        The Commonwealth finally called Lieutenant Michael Nolan of the Erie Police

Department as an expert in the area of "narcotics trafficking and investigation."   (Id. at 110).

Lieutenant Nolan has served with the Erie Police Department for 22 years, has had extensive

training in the area of narcotics, handled several hundred cases over the course of his career,

been consulted as an expert in close to 200 narcotic cases, and testified in up to 150 such cases,

many of these involving heroin. (Id. at 108-110).     Lieutenant Nolan was, therefore, recognized

as an expert in narcotics and drug investigations by this Court. (Id. at 110).

       Lieutenant Nolan testified that the amount of heroin in question, 69 .1 grams, was

consistent with the charge of Possession with Intent to Deliver rather than mere possession. (Id.

at 113). Lieutenant Nolan testified that a typical use dose of heroin is .05 grams and one gram of

heroin is enough for 20 doses. (Id.) One dose is generally twenty dollars, qualifying heroin as



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an expensive drug. (Id. at 113-114). Users and addicts will typically "use day-to-day and try to

come up with a way to pay for the drug the following day." (Id. at 114). Lieutenant Nolan

further testified that each of the fourteen bags at issue in this case contained 100 doses and would

each cost $2,000. (Id. at 113-14). Consequently, it would be unusual for a user to have one bag

of twenty doses, much less the fourteen bags found in the Granada Apartment. (Id. at 114).

Lieutenant Nolan concluded that the amount of heroin packaged in each of the bags found at the

Granada Apartment is consistent with a "high level dealer" selling to a "low level dealer." (Id.).

Further, the plastic bags and scales found at the apartment were indicative of possession with

intent to deliver because they are "very common tools of the trade" for drug dealers who deal in

drugs by specific weight, such as grams. (Id. at 114-15). By contrast, addicts or users do not

typically utilize digital scales. (Id.) Following Lieutenant Nolan's testimony, the

Commonwealth rested its case. (Id. at 124).

        Subsequently, the Court engaged in a colloquy with the Appellant as to his constitutional

safeguards and right to remain silent. (Id. at 126-129). The Court then recessed until March 11,

2014 and gave Appellant time to decide whether he would testify. When the Court returned to

session, the Court engaged in a second colloquy with Appellant and he notified the Court of his

intention to offer testimony on his own behalf. (N.T. Day Two at 3-7). The Court concluded

that Appellant's waiver of his right to remain silent was knowing, intelligent and voluntary. (See

id.).

        Appellant testified that he is a resident of Detroit and that he would often travel to Erie to

spend time with his girlfriend who lives here. (Id. at 11-12). He testified that he knew Richard

Kemp from his neighborhood in Detroit and that he met Mr. Keefer from his travels to Erie. (Id.

at 11). He readily admitted to having previously sold drugs in Erie. (Id. at 12). He denied,



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however, ever supplying Richard Kemp with heroin. (Id.). He admitted he and Mr. Keefer had

purchased drugs together. (Id.) He also admitted to having multiple heroin suppliers in Detroit.

(Id. at 28). He claimed that Richard Kemp would ask for his heroin supplier when Richard's was

"unavailable." (Id. at 26).

        In reference to the transportation of 100 grams of heroin to Erie by Richard Kemp,

Appellant acknowledged that he was in Erie on October 24, 2012. (Id. at 16). He denied any

knowledge of Richard Kemp's possession of 100 grams of heroin in Erie at that time or any

attribution to it. (See id. at 17).

        On cross-examination, Appellant stated he was in Erie on November 9, 2012 to collect a

settlement check from an insurance company that was given to his girlfriend for an accident he

had in Detroit. (Id. at 17-18). He arrived in Erie by train with Jamal Hokes and was picked up

by Mr. Keefer. (Id. at 20). Appellant denied knowing that Jamal Hokes was carrying heroin.

(Id. at 21). However, he understood Jamal Hokes was in Erie to sell drugs once Jamal Hokes

said there "wasn't no dogs at the train station," in reference to drug-sniffing dogs. (Id.).    When

Mr. Keefer's car was stopped at the Country Fair by Lieutenant Nolan, Appellant denied

possession of the heroin found in the car and stated "ain't shit on [sic] my bag." (Id. at 22).

        Appellant further testified that he learned of the heroin seized from the Granada

Apartment from the newspaper (Id. at 14). He testified that the Granada Apartment was Richard

Kemp's apartment that Richard had Mr. Keefer rent. (Id.). In summary, Appellant's testimony

was that, despite his status as a heroin dealer with multiple suppliers in Detroit, he denied

conspiring with Jamal Hokes or Richard Kemp and further denied possession of both the 49.9

grams of heroin in the Lorna Doone cookie box and the 69.1 grams of heroin in the Granada

Apartment.



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        Appellant offered no further witnesses and rested. The jury subsequently returned a

verdict of guilty on all four counts.




                                          DISCUSSION

       Defendant raises one issue for review on appeal:

                The commonwealth's [sic] prosecution of these charges subjected
        appellant to double jeopardy and violated 18 Pa.C.S.A. 109 and/or 110 in that the
        defendant was charged at Docket No. 3652-2012 with Possession with Intent to
        Deliver, Conspiracy and Possession of 49.93 grams in regards to an incident
        occurring on November 9, 2012. On that same date the police obtained a Search
        Warrant of an apartment and subsequently charged the defendant with the same
        charges for the drugs found in the apartment.
(Appellant's Statement of Matters Complained of on Appeal at ,r 5).

        18 Pa.C.S. § 110, known as the compulsory joinder rule, serves a two-fold purpose:

"First, it protects a defendant from the governmental harassment of being subjected to successive

trials for offenses stemming from the same criminal episode. Secondly, the rule assures finality

without unduly burdening the judicial process by repetitious litigation." Commonwealth v.

Gimbara, 835 A.2d 371, 373-74 (Pa. Super. 2003) (citing Commonwealth v. Failor, 770 A.2d

310, 313 (2001)).

       Specifically, Section 110 provides, in pertinent 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[.]

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    18 Pa.C.S. § l lO(l)(ii).

            18 Pa.C.S. § 109 defines a conviction as: "[t]here is a conviction if the prosecution

resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty

which has not been set aside and which is capable of supporting a judgment, or a plea of guilty

accepted by the court." 18 Pa.C.S. § 109(3).

            The Pennsylvania Supreme Court has developed a four-prong test to determine when

Section 110 bars a subsequent prosecution as follows:

           (1) the former prosecution resulted in an acquittal or conviction; (2) the current
           prosecution was based on the same criminal conduct or arose from the same
           criminal episode; (3) the prosecutor in the subsequent trial was aware of the
           charges before the first trial; and ( 4) all charges [are] within the same judicial
           district as the former prosecution.

Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013) (citing Commonwealth v. Nolan, 855 A.2d
834, 839 (Pa. 2004)).

This Court will address each of the four prongs in seriatim.




1. Appellant'sformerprosecution resulted in a conviction.

           On May 22, 2013, the jury in Appellant's former prosecution at Criminal Docket number

3652 of 2012, involving 49.9 grams of heroin, returned a verdict of guilty on all counts.5 This

would constitute a "conviction" pursuant to 18 Pa.C.S. § 109(3) because there was a guilty

verdict and a sentence imposed which has yet to be overturned.              See also Commonwealth ex rel.

Trotter v. Hendrick, 177 A.2d 162, 163-64 (Pa. Super. 1962) (holding a conviction occurs when

a jury returns a verdict of guilt). Therefore, the first prong is met.


5
  On July 31, 2013, Appellant appealed his conviction at Criminal Docket Number 3652 of2012 to the Superior
Court. On July 3, 2014, the Superior Court dismissed the appeal. On July 16, 2014, Appellant's right to appeal was
reinstated nunc pro tune and his appeal in his first prosecution is still pending. To date, therefore, Appellant's
conviction has not been reversed or vacated.

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2. The current prosecution involving the seizure of 69.1 grams of heroin from the Granada
Apartment did not arise from the same criminal episode as the 49.9 grams of heroin seized
from a vehicle on the same day.

         For purposes of the second prong of the compulsory joinder rule, joinder is required

when the current prosecution involves the same criminal conduct or arises from the same

criminal episode. See Commonwealth v. George, 38 A.3d 893, 897 (Pa. Super. 2012). A

criminal episode has been defined as "an occurrence or connected series of occurrences and

developments which may be viewed as distinctive and apart although part of a larger or more

comprehensive series." Id. (citing Commonwealth v. Schmidt, 919 A.2d 241, 246 (Pa.Super.

2007).

         In the seminal case of Commonwealth v. Hude, 458 A.2d 177 (Pa. 1983), courts were

directed to look at the "logical and temporal relationship" between the criminal acts to determine

whether they constituted the same "episode." See id. at 181. The Pennsylvania Supreme Court

explained whether a logical relationship exists by stating: "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." Id. at 183. Specifically, the Pennsylvania Supreme Court

held that joinder was required when the defendant was tried separately on various possession and

delivery charges concerning different quantities of marijuana at different locations but sold to the

same victim. 458 A.2d at 494-95.

         While guided by Hude, this Court is also mindful of our Supreme Court's instructions in

Commonwealth v. Nolan, supra, wherein the Court cautioned against labeling an "enterprise an

episode." 855 A.2d at 840. The Court explained the relationship between a "criminal



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enterprise" and a "criminal episode" as: "[m]uch like a television sitcom, each week's story has

similar characters, producers, and continuity of storyline, but each week is a separate episode -

the series of episodes is an enterprise."   Id. The Court concluded that different criminal episodes

within the same criminal enterprise are not required by compulsory joinder to be prosecuted

together and may be prosecuted separately. Id.

        In Commonwealth v. Reid, supra, the Pennsylvania Supreme Court also addressed the

issue of joinder and unanimously held that joinder was not required. In that case, the defendant

was prosecuted twice for selling cocaine. In his first prosecution, he was charged with selling

cocaine at a specific location, and in his second prosecution he was charged with conspiring to

sell and selling cocaine at various locations before and after the date of the first case. 77 A.3d at

581. Specifically, in 2007, the defendant pled guilty to selling cocaine at a bar parking lot in

2006. Id. Subsequently, in 2009, a grand jury implicated the defendant for selling cocaine

between 2006 and 2007 at his home and at various bars. Id. This did not include the bar parking

lot from the 2006 case charged in his first prosecution. Id.

       The Pennsylvania Supreme Court determined in Reid that the defendant's conduct in both

prosecutions was not part of the same criminal episode, and further considered whether different

evidence was required to establish the offenses charged in each case. Id. at 586. The Court

compared the witnesses for both cases. Id. Although the second prosecution involved the same

investigating officer as the first prosecution, the second prosecution also required four additional

witnesses. Id. The Court also considered the geographic locations of the defendant's conduct in

each case. The first prosecution was based on a single act of conduct at a convenience store and

in a bar. Id. The second prosecution was based on a series of actions that took place in the

defendant's home and inside of a different bar. Id. The Court further noted that the defendant's



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actions in the second prosecution sometimes involved a middleman. Id. There was no

middleman used in the first prosecution. Id. Based on the foregoing, the Court concluded there

was no substantial duplication of law and fact, and the two prosecutions did not involve the same

criminal episode. Id.

        Applying Reid to the facts of the case sub Judice, this Court concludes that Appellant's

conduct prosecuted at Docket Number 3652 of2012 was not part of the same criminal episode as

the conduct prosecuted in the instant case. Looking first to the temporal relationship between

Appellant's conduct in both cases, this Court notes that the Criminal Information in both of

Appellant's cases charges Appellant with possessing different amounts of heroin on the same

date, November 9, 2012. However, the logical relationship between the two offenses must be

considered in addition to the temporal relationship. Reid, 77 A.3d at 585.

        In this case, the logical relationship prong of the compulsory joinder test is not met

because there is not a substantial duplication of issues of fact and law between the two cases.

This determination is made by inquiring whether different evidence was required to establish the

offenses alleged in each case. Reid, 77 A.3d at 586. Substantial duplication oflaw and fact do

not exist in cases that "would require the introduction of testimony of completely different police

officers and expert witnesses as well as the establishment of separate chains of custody."

Commonwealth v. Bracalielly, 658 A.2d 755, 762 (Pa. 1995).

        Instantly, Appellant's two cases involved some commonality of investigating officers and

the same controlled substance, heroin. However, further scrutiny of Appellant's two cases

reveals its similarity to the facts of Reid, supra. In this case, additional witnesses were required

to establish the offenses and these witnesses were not duplicative of the witnesses relied upon in

the Appellant's first case. In the instant case, the Commonwealth's main witness was Richard



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Kemp, who testified as to the details of the conspiracy and how his transportation of 100 grams

of heroin to Erie from Detroit on or about October 28, 2012. (See N.R. Day One at 45-47).

This was over two weeks prior to Appellant's arrival and arrest on November 9, 2012 for

possession with intent to distribute 49.9 grams of heroin. Appellant's prosecution at Criminal

Docket number 3652 of 2012 involved 49.9 grams of heroin found in the Lorna Doone cookie

box discovered in a blue duffel bag found in the truck of a car. Appellant was in the car with

Jamal Hokes and Danny Keefer.

       The 69.1 grams of heroin at issue in this case was the amount left in the Granada

Apartment after Richard Kemp abandoned it. (See N.T. Day One at 41-46). The 69.1 grams was

the balance of heroin remaining from the original I 00 grams brought to Erie from Detroit by

Richard Kemp. (See id.). Richard Kemp did not testify in Appellant's first prosecution.

       A key witness in Appellant's first prosecution was Jamal Hokes, who testified that he and

Appellant travelled from Detroit to Erie with 49.9 grams of heroin. Hokes testified that, after

their arrest, Appellant agreed to pay Hokes' bond and financially "take care of his family" if

Hokes would take the fall for the heroin and admit it was his. (See N.T. May 20, 2013 Trial at

32-70). By contrast, Jamal Hokes did not testify in the instant case.

       Richard Kemp and Jamal Hokes testified at different trials, involving different amounts

of heroin for sale in Erie. They each represented the different chains of custody present in each

case. The Commonwealth could only connect possession of the 69.1 grams of heroin in the

instant case to Appellant through Richard Kemp. In Appellant's first prosecution, however, the

Commonwealth could only connect the possession of the 49.9 grams of heroin in that case to

Appellant through Jamal Hokes. There was no evidence that Richard Kemp knew of Appellant's

possession with intent to distribute 49.9 grams of heroin found in the car along with Hokes and



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Keefer on November 9, 2013. The search of the car occurred twelve days after Richard Kemp

abandoned the Granada Apartment on October 28, 2013, leaving behind the 69.1 grams of heroin

because he feared being arrested. Further, and vice-versa, Jamal Hokes could not testify to the

69 .1 grams of heroin remaining in the Granada Apartment because that heroin was overseen by

Richard Kemp. Therefore, because Appellant's two cases required different evidence to

establish separate chains of custody, they did not contain a substantial duplication of fact. See

Bracalielly, supra at 762. Each case also relied on different witnesses to prove the

Commonwealth's case. See id

        Additionally, the primary investigating officers in the two cases are different. There was

a difference in the investigating officers because there was a jurisdictional difference between

the two cases. In the present case, the Granada Apartments are located in Millcreek Township.

The search of the car at the Country Fair on November 9, 2012 occurred in the City of Erie.

Consequently, two different police agencies were involved in each case. In the instant case,

Detective Adam Hardner and Lieutenant Michael Dougan of the Millcreek Township Police

department conducted the investigation regarding the heroin found at the Grenada Apartment.

Neither officer participated in the investigation of Appellant's first case and neither testified at

Appellant's first trial. The location of the drugs in both cases encompassed two different police

jurisdictions, Millcreek Township and the City of Erie.

        Lieutenant Michael Nolan of the Erie Police Department investigated Appellant's first

case and testified in Appellant's first case as an investigating officer. (See N.T. May 20, 2013

Trial at 100-09). Lieutenant Nolan also testified in Appellant's second case. However, in the

instant case Lieutenant Nolan did not testify as an investigating officer and was, instead, called

by the Commonwealth as an expert witness in narcotics. (N.T. Day One at 110). The Court



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accepted him as an expert witness and his testimony was limited to his expert opinion. (See id.).

Because Appellant's two cases required the testimony of completely different police officers

from two different police jurisdictions and the use of different expert witnesses, they did not

contain a substantial duplication of fact. See Bracalielly, supra at 762.

        There were only two other witnesses in common between the two trials. Detective Jon

Reddinger testified in both trials as an investigating officer. However, Detective Reddinger's

testimony in the instant case was limited to authenticating a recorded telephone conversation

Appellant had while imprisoned. (See N.T. Day One at 104-06). Detective Reddinger also

authenticated recorded telephone conversations in Appellant's first case. (N.T. May 21, 2013

Trial at 14-20). However, the substance of the telephone conversations, with the exception of

one call, was completely different in both cases. In the instant case, one recorded telephone

conversation took place November 13, 2012 and consisted of statements made by Appellant to

Richard Kemp regarding Appellant's supplier in Detroit. The second conversation involved

Appellant and Kemp talking about the police searching the Granada Apartment on November 12,

2012. (See Comm.'s Ex. 1).

       By contrast, the telephone conversations admitted into evidence in Appellant's first case

consisted of calls from Jamal Hokes to his fiance and sister, and five telephone calls from

Appellant on November 10, 11 and 12, 2012 to assorted people. Of these five calls, only the last

call, on November 12, 2012 at 1: 13 p.m., was admitted into evidence in both cases. Detective

Reddinger' s testimony in both cases, therefore, was clearly for different purposes and involved

different people talking to Appellant for different reasons.

       The other witness who testified in both trials was Danny Keefer. There was some

overlap in testimony in the course of both trials, but much of that overlap consisted of predicate



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facts such as how Appellant and Mr. Keefer knew each other and what tasks Mr. Keefer

performed for Appellant. (See N.T. Day One at 71-72; see also N.T. May 20, 2013 at 75-77).

Mr. Keefer acknowledged in both cases that he was a heroin addict who served as a runner for

Appellant to sell heroin. Most of Mr. Keefer's testimony in the instant case concerned the

apartment and how Appellant's criminal organization operated. (See N.T. Day One at 69-76).

This included the renting of the Granada Apartment in Keefer's name and use of it as a stash

house for the heroin and as a flop house for sellers from Detroit. By contrast, most of Mr.

Keefer's testimony in Appellant's first trial concerned the events of November 9, 2012 regarding

when Mr. Keefer picked Appellant and Jamal Hokes from the train station and the subsequent

search of the vehicle and discovery of 49.9 grams of heroin. (See N.T. May 20, 2013 at 70-74).

Consequently, Mr. Keefer's testimony in both cases does not represent a substantial duplication

of fact.

           The remaining evidence admitted to establish the offenses in each case was also

completely different. Appellant's first case involved 49.9 grams of heroin found in Mr. Keefer's

car with Appellant as a passenger on November 9, 2012. Aside from witness testimony,

including Danny Keefer's, the other pieces of evidence admitted to establish Appellant's

offenses in the first case included: a Lorna Doone box (which contained the heroin); a bag

containing the 49.9 grams of heroin; a video of Appellant and Jamal Hokes arriving from the

Erie train station; a photograph of Mr. Keefer's trunk; a copy of Jamal Hokes' statement to

police; the lab report testing the 49.9 grams of heroin; the expert testimony of Detective Greg

Acri and his report; and the recorded telephone calls of Appellant and Jamal Hokes. (See Crim.

Docket 3652-2012, Comm.'s Exs. 1-9).




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        By contrast, the instant case involved criminal conspiracy to possess with intent to

distribute and possession with intent to distribute 69.l grams of heroin found in the Granada

Apartment on November 9, 2012. This amount of heroin represented a part of 100 grams of

heroin brought to Erie from Detroit four to five days prior to October 28, 2012 by Richard

Kemp. The evidence admitted to establish Appellant's offense in this case included witness

testimony and: the recorded telephone calls of Appellant; photographs of the Granada

Apartment; the 69.1 grams of heroin at issue in this case; the U.S. Balance digital scale found in

the Granada Apartment; the A.W.S. 100 digital scale found in the Granada Apartment; plastic

baggies found in the Granada Apartment; the recorded property report from the search of the

Granada Apartment; the lab report testing the 69 .1 grams of heroin at issue in this case; the

fingerprint examination report from the fingerprints lifted from the Granada Apartment; and

Lieutenant Nolan's expert report. (Comm.'s Exs. 1-13). The only piece of evidence that was the

same in both cases was the recorded telephone conversation of Appellant on November 12, 2012

at 1: 13 p.m. Noting the difference in witnesses called by the Commonwealth in each case and

the different exhibits admitted into evidence in each case, this solitary piece of evidence

regarding the same phone call does not represent a substantial duplication of fact.

       The Court also notes the conspiracies as charged in both cases were different. In the

instant case, Appellant was charged specifically with conspiring with Richard Kemp in regard to

the 69 .1 grams of heroin at the Granada Apartment. (See September 25, 2013 Criminal

Information at Count 2). Richard Kemp's testimony was offered to prove that a conspiratorial

relationship existed. In Appellant's first prosecution, however, the conspiracy centered around

Appellant's relationship with Jamal Hokes to transport 49.9 grams of heroin from Detroit to Erie

on November 9, 2012. Jamal Hokes' testimony in the first trial was offered to prove that specific



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conspiratorial relationship. This further illustrates that the 49.9 grams of heroin Appellant

conspired to bring to Erie with Jamal Hokes in his first prosecution was separate and apart from

the 100 grams of heroin Appellant conspired to bring to Erie with Richard Kemp. Additionally,

Appellant's own testimony established that he used multiple sources in Detroit. (N.T. Day Two

at 28). Richard Kemp also indicated he utilized multiple sources from Detroit, including

Appellant, to supply him with heroin. It is, therefore, possible that the 100 grams of heroin

brought to Erie from Detroit by Richard Kemp came from a separate source from the 49 .9 grams

brought to Erie from Detroit by Appellant and Jamal Hokes. Consequently, this case involved

multiple suppliers of heroin in separate conspiracies dealing with separate amounts of heroin

brought to Erie from Detroit on different days.

        Based on the foregoing, Appellant's first prosecution and the instant case required proof

of different facts through the testimony of different witnesses as a basis of their admissibility.

Thus, because different evidence was required to establish the offenses in each case, there was

no substantial duplication ofissues of fact or law between the two cases. See Reid, supra at 586.

       Finally, assuming arguendo that Appellant's actions in his first prosecution and the

instant case could be characterized as part of the same criminal enterprise, they represented

separate criminal episodes. Pursuant to Nolan, supra, different criminal episodes within the

same criminal enterprise are not required to be prosecuted together under the compulsory joinder

rule. Id. at 840. As set forth above, Appellant's first prosecution and the instant case constituted

separate criminal episodes. Therefore, for all of the reasons set forth above, the second prong of

the compulsory joinder analysis is not met.




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3) The prosecutor in the instant case was unaware of Appellant's charges before the first
trial.

         Next, joinder is inappropriate in this case because the prosecutor was not aware of

Appellant's conduct and joint possession of 69 .1 grams of heroin until after his conviction in the

previous case. According to the representation of Assistant District Attorney Panighetti, at the

time of the execution of the search warrant on the Granada Apartment on November 9, 2012, the

Commonwealth had no additional evidence regarding who was responsible for possessing the

heroin at the Granada Apartment. (See N.T. Day One at 9-10). Assistant District Attorney Justin

Panighetti explained as follows:

                 Mr. Panighetti: [T]he initial charges involve [Appellant] and a co-
         defendant under the name of Jamal Hokes. In that instance Jamal - it was within
         Jamel's bags that drugs were found. It was 49.9 grams was what the last case
         involved and -
                 The Court: What was the drug?
                 Mr. Panighetti: Heroin.
                 The Court: Okay.
                 Mr. Panighetti: Heroin. And so at that time Mr. Hokes became a witness,
         a witness for the Commonwealth very shortly thereafter and testified with regards
         to those drugs. There was another individual who was in the car. There was an
         individual name[d] Danny Keefer, who will testify today, who rented this
         apartment that we're talking about. That individual was the one that was inside
         the car with him. He had picked them up from the train station. It was in his car
         that they were in when they were at Country Fair and he had indicated that, yes,
         he had rented the apartment at that time, but he could not speak to - because we
         went back. We did get the search warrant based on him saying that he believed
         there might be, there was probably heroin in this apartment. He could not say -
         he could not tie this heroin to Mr. Seaton and Mr. Hokes could not tie it to Mr.
         Seaton because they would rotate. A different person would come in and sell the
         drugs each week, okay? And so it wasn't until we got fingerprints back on
         Richard Kemp and this happened after his trial.
(Id.).

         According to the Commonwealth, neither Appellant nor Jamal Hokes could be connected

to the 69.9 grams of heroin in this case because the co-conspirators would frequently rotate in

delivering the heroin to Erie. (See id.). It was not until fingerprint results were returned from the



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evidence extracted from the apartment that the Commonwealth could connect the heroin to

Richard Kemp and, ultimately, Appellant. (See id.). Richard Kemp was subsequently arrested

on June 20, 2013, a full month after Appellant's first trial. (Id at 37). Richard Kemp then

agreed to inform the Commonwealth about Appellant's involvement in the conspiracy. (Id at

37-38).

          A review of the trial transcript from Appellant's first prosecution reveals that the

Commonwealth was, in fact, aware of Appellant's role as the leader of the drug conspiracy that

operated out of the Granada Apartment. However, as explained supra, the instant case and

Appellant's first case involved separate chains of custody because Richard Kemp and Jamal

Hokes were mutually exclusive of each other. Consequently, the Commonwealth could not

prosecute Appellant in the instant action until it could establish the chain of custody linking

Appellant to the 69.1 grams of heroin found in the Granada Apartment. This could only be done

through the testimony of Richard Kemp. Richard Kemp was not arrested until June 20, 2013,

one month after Appellant's first trial for the 49.9 grams of heroin. Therefore, for purposes of the

third prong of the compulsory joinder rule, the prosecutor in the instant case was not aware of

Appellant's current charges relating to the 69 .1 grams of heroin prior to Appellant's first trial for

the 49.9 grams of heroin.



4) Appellant'sinstantcharges are within the same judicial districtas the former
prosecution.

       Analysis of the fourth factor is not necessary because, as demonstrated above, two prior

requirements to establish compulsory joinder have not been met. The Court notes, however, that

Appellant's first case was also prosecuted within the Court of Common Pleas of Erie County,

Pennsylvania.

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        Therefore, the Court concedes that the first and fourth elements required for compulsory

joinder have been satisfied. See Reid, supra. However, all four elements must be present to

mandate joinder and, as illustrated above, two elements are not satisfied.

        First, the current prosecution was not based on the same criminal episode as the former

prosecution. Both cases involved different chains of custody, different witnesses, and different

evidence and exhibits. Even if these two matters were considered part of a criminal enterprise,

they were each separate criminal episodes, and joinder was not mandated. See Nolan, supra.

Notably, if these two matters were joined, Appellant's defense would have focused on the

existence of multiple conspiracies and not one centralized agreement to distribute heroin. This

was his defense in the current case. Appellant conceded he was a heroin dealer but was not

involved in the current conspiracy with Richard Kemp to distribute heroin in Erie. This again

reaffirms thatjoinder was not mandated. This was also consistent with Appellant's assertion that

he had multiple sources of heroin available to him in Detroit, as did Richard Kemp.

        Second, the prosecutor was not aware of Appellant's current charges regarding the 69 .1

grams of heroin prior to the first trial for the 49. 9 grams of heroin.

        Further, because Appellant's conduct in both cases constitutes different criminal

episodes, Appellant's constitutional protections against double jeopardy have also been

protected. See Commonwealth v. Schmidt, 919 A.2d 241, 251 (Pa.Super. 2007) (holding that two

separate criminal episodes do not constitute the same offense within the meaning of the double

jeopardy clauses). Consequently, Appellant was never prosecuted twice for the same offense.

       Thus, Appellant's sole issue and challenge to his conviction and sentence is devoid of

factual or legal merit and must thereby be dismissed.



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                                        CONCLUSION

      For the reasons set forth above, Appellant's appeal should be dismissed.



                                                   BY THE COURT:




cc:   Office of the District Attorney
      Wayne G. Johnson, Jr., Esquire




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