J-A28015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    MICHELE R. DAVIS                              :
                                                  :
                       Appellant                  :   No. 625 MDA 2018

        Appeal from the Judgment of Sentence Entered January 4, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003961-2017


BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                        FILED: AUGUST 22, 2019

        Appellant, Michele R. Davis, appeals from the judgment of sentence

entered on January 4, 2018 in the Criminal Division of the Court of Common

Pleas of Berks County. We affirm.

        The events giving rise to this appeal occurred on August 12 and 13,

2017 in Boyertown and New Berlinville, Pennsylvania. 1             At approximately

11:45 p.m. on August 12, 2017, Officer Michael Hoppes of the Boyertown

Police Department discovered Appellant in a heavily intoxicated state in a

parking lot outside of an establishment in Boyertown, Pennsylvania. Officer

Hoppes summoned Officer Matthew Merry of the Colebrookdale Township

Police Department for assistance.              When Officer Merry arrived on-scene,

Officer Hoppes cited Appellant for public drunkenness in violation of 18

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1   Both municipalities are located in Berks County, Pennsylvania.
J-A28015-18



Pa.C.S.A. § 5505. After issuing the citation, the officers elected to transport

Appellant to her mother’s residence in New Berlinville, Pennsylvania.

        The officers and Appellant arrived at Appellant’s mother’s home at

around 12:15 a.m. on August 13, 2017. Upon arrival, the officers escorted

Appellant to the front door and Appellant entered the residence. The officers

remained at the entryway, explaining the citation to Appellant’s mother. As

the three discussed Appellant’s citation, Appellant returned to the front door

and began yelling at the officers.             The officers directed Appellant to stop

screaming and to get back inside the residence.

        As the officers walked away from the home, Appellant followed and

continued to yell at them. When Appellant persisted, Officer Merry pinned her

to the ground and handcuffed her. Officer Merry then walked Appellant to his

police cruiser and attempted to place her into the vehicle. When Appellant

refused to cooperate, Officer Hoppes assisted Officer Merry by dragging

Appellant into the backseat of the patrol car.

        On August 14, 2017, Officer Hoppes filed Appellant’s summary citation

for       public      drunkenness.             This      citation,    docketed      at

MJ-23302-NT-0000309-2017 (and referred to herein as “Case 1”), was

adjudicated by a magistrate judge who imposed a sentence of time served

after Appellant pled guilty on August 16, 2017.2 To reiterate, the events giving




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2   As of the date of disposition, Appellant had served two days of confinement.

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rise to the charge leveled in Case 1 stemmed from Officer Hoppes’ discovery

of Appellant in an inebriated state in the Boyertown parking lot.

      On August 13, 2017, one day prior to the filing of Appellant’s summary

citation in Case 1, Officer Merry filed criminal charges against Appellant which

accused her of resisting arrest (18 Pa.C.S.A. § 5104), disorderly conduct (18

Pa.C.S.A. § 5503(a)(3)), and public drunkenness (18 Pa.C.S.A. § 5505).

These charges, hereinafter referred to as “Case 2,” arose from events that

occurred at the home of Appellant’s mother. On August 16, 2017, Appellant

waived her preliminary hearing on the charges filed at Case 2 before the same

magistrate judge who presided over Case 1. Thus, Appellant’s resisting arrest

and related charges proceeded to the Court of Common Pleas and were

docketed   at   CP-06-CR-0003961-2017.        The    Commonwealth      filed   its

information in Case 2 on September 19, 2017.

      The trial court appointed a public defender to represent Appellant and,

on November 2, 2017, counsel filed an omnibus pre-trial motion asserting that

double jeopardy and compulsory joinder barred prosecution of the charges

filed in Case 2. See Omnibus Pre-Trial Motion, 11/2/17, at 3 (unpaginated),

citing U.S. Const. amend. V, Pa. Const. Art. I Sec. 10, and 18 Pa.C.S.A.

§ 110(1)(ii). The trial court convened a hearing on the motion on December

4, 2017.

      On January 4, 2018, Appellant pled nolo contendere to the charge of

resisting arrest at Case 2 and the Commonwealth dismissed the charges of

disorderly conduct and public drunkenness.          Thereafter, the trial court

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sentenced Appellant to four to 24 months’ incarceration with 140 days credit

for time served. In addition, the court denied Appellant’s double jeopardy and

compulsory joinder claims.

       Appellant was immediately transferred from Berks County Prison to

SCI-Muncy following pronouncement of her judgment of sentence.              On

January 13, 2018, Appellant prepared a pro se letter entitled, “Letter Re: Post

Sentence Motion,” in which she requested relief in the form of a modification

of her sentence.3 This submission was docketed in the trial court on January

18, 2018. Counsel for Appellant received the submission on January 22, 2018

and, thereafter, filed a motion to seek post-sentence relief nunc pro tunc,

together with a proposed post-sentence motion, on January 23, 2018. At a

hearing on February 26, 2018, the trial court granted Appellant’s counseled

motion to file a post-sentence motion nunc pro tunc. By order entered on

March 13, 2018, however, the trial court denied Appellant’s counseled

post-sentence motion. Counsel then filed a notice of appeal on April 12, 2018

and the trial court issued its opinion pursuant to Pa.R.A.P. 1925(a) on June

22, 2018.

       By order entered on June 25, 2018, this Court directed Appellant to

show cause why this appeal should not be dismissed as untimely since her

April 12, 2018 notice of appeal was filed more than 30 days after the

____________________________________________


3 On the same day, Appellant prepared a letter to counsel in the public
defender’s office in which she requested that counsel file a post-sentence
motion and an appeal from her judgment of sentence.

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imposition of the judgment of sentence on January 4, 2018 and her counseled

post-sentence motion, which was untimely filed on January 23, 2018, did not

toll the appeal period. Appellant filed a timely response to our show cause

order on July 5, 2018. On July 9, 2018, we discharged our show cause order

and the timeliness of this appeal was referred to this panel for review.

       Appellant raises a single question for our consideration.4

       Whether the trial court erred in denying Appellant’s omnibus
       pre-trial motion to dismiss on double jeopardy grounds when it
       decided that the disputed charges were not part of the “same
       criminal episode.”

Appellant’s Brief at 6.

       Before we address Appellant’s substantive appellate claim, we must

consider the issue that was referred to this panel, to-wit whether this appeal

should be quashed because it was not timely filed.       “In order to perfect a

timely appeal, a defendant must file a notice of appeal within 30 days of the

imposition of [her] sentence, unless [she] files a timely post-sentence motion

within 10 days of sentencing, thereby tolling that 30–day window.”

Commonwealth v. Leatherby, 116 A.3d 73, 78 (Pa. Super. 2015), citing

Pa.R.A.P. § 903 and Pa.R.Crim.P. 720(A).


____________________________________________


4 Appellant’s brief lists a second question in which she alleges that the trial
court abused its discretion by imposing a manifestly unjust and unreasonable
sentence that would significantly impact her state parole from a 2015
conviction. See Appellant’s Brief at 6. Appellant’s counsel conceded,
however, that she is unable to develop a meritorious argument in support of
this claim; hence, it has been withdrawn. See id.

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     The Commonwealth argues that the instant appeal should be quashed

because Appellant’s untimely post-sentence motion did not toll the appeal

period and her notice of appeal was docketed more than 30 days after the

imposition of her sentence.       See Commonwealth’s Brief at 6.           In

Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en

banc), this Court held that a post-sentence motion filed nunc pro tunc tolls

the appeal period only where each of two conditions are met. First, within 30

days of the imposition of sentence, a defendant must ask the trial court to

consider a post-sentence nunc pro tunc. See id. Second, “[if, within 30 days

of the imposition of sentence,] the trial court chooses to permit a defendant

to file a post-sentence motion nunc pro tunc, the court must do so expressly.”

Id. Here, the trial court imposed its sentence on January 4, 2018 and counsel

moved to file a nunc pro tunc post-sentence motion on January 23, 2018.

Hence, the first requirement identified in Dreves has been satisfied.     The

court, however, did not grant counsel’s motion until February 26, 2018, more

than 30 days after the pronouncement of sentence.        The Commonwealth

concludes that the failure to comply with the second requirement announced

in Dreves renders the instant appeal untimely and subject to quashal.

     Appellant’s response to our show cause order contends that this appeal

should not be quashed as untimely. Citing her pro se correspondence dated

January 13, 2018, Appellant argues that the letter “was in fact a

[post-sentence motion] that she filed pro se as a last resort.” Appellant’s


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Response to Rule to Show Cause, 7/5/18, at 4 para. 14. Specifically, Appellant

avers that, after the trial court imposed its sentence, she was immediately

transferred to SCI-Muncy where prison intake and processing policies severely

hampered her ability to communicate with outsiders, including her attorney

and the court, during the transition period. See id. at 4-5. In view of these

circumstances, Appellant maintains that her pro se submission should be

considered a timely post-sentence motion which tolled the appeal period

pursuant to Pa.R.Crim.P. 720(A).5 Because Appellant filed her April 12, 2018

notice of appeal within 30 days of March 13, 2018, the date the trial court

decided Appellant’s post-sentence motion, Appellant concludes that her

appeal is timely.

       Owing to Pennsylvania’s prohibition against hybrid representation, pro

se post-sentence motions filed when counsel remains attached to a case are

generally deemed to be legal nullities. See Commonwealth v. Reid, 117

A.3d 777, 781 n.8 (Pa. Super. 2015) (pro se post-sentence motion filed while

defendant represented by counsel is a legal nullity); Commonwealth v.

Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (same).                 In certain


____________________________________________


5  Because the trial court sentenced Appellant on January 4, 2018, a timely
post sentence motion was due no later than January 15, 2018, since the tenth
day of the period fell on a Sunday. See 1 Pa.C.S.A. § 1908 (calculation of
time for filing). Since Appellant’s pro se submission is dated January 13, 2018,
it would be timely under the prisoner mailbox rule. See Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (“prisoner mailbox rule provides
that a pro se prisoner's document is deemed filed on the date [s]he delivers
it to prison authorities for mailing”).

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circumstances, however, this Court has departed from a strict application of

the principle against hybrid representation where a breakdown in the judicial

system has occurred and a represented litigant has acted in his own behalf to

preserve constitutional rights. We detail two examples below.

      In Leatherby, supra, Leatherby’s retained counsel stated at sentencing

that Leatherby could no longer afford his services.     Consequently, counsel

asked the trial court to appoint a new attorney. To facilitate the transition to

new counsel, retained counsel agreed on the record to file a post-sentence

motion on Leatherby’s behalf within ten days.        Contrary to his promise,

however, retained counsel never filed a post-sentence motion within ten days

of sentencing to toll the 30-day appeal period. Retained counsel also failed to

file a notice of appeal.   Furthermore, the trial court did not appoint new

counsel until ten days after the imposition of sentence.       In the interim,

Leatherby filed a pro se post-sentence motion within the ten-day period after

sentencing to preserve his appellate rights. The Commonwealth claimed that

Leatherby’s pro se motion constituted improper hybrid representation and,

thus, should be considered a nullity which did not toll the appeal period.

      Notwithstanding the Commonwealth’s contentions, we held that

Leatherby’s pro se filing did not offend considerations of hybrid representation

and was effective in tolling the time in which to file an appeal.    We noted

initially the confusion as to who would file post-sentence motions on

Leatherby’s behalf and retained counsel’s failure to file those motions despite


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his promise to do so. We also noted the trial court’s failure to appoint new

counsel in time to preserve Leatherby’s post-sentence rights.     Under the

circumstances (which we equated with an administrative breakdown on the

part of the trial court), we concluded that Leatherby’s pro se filing did not

offend considerations of hybrid representation since retained counsel

effectively abandoned him and the trial court failed to designate new counsel

in a timely manner. Hence, we held that Leatherby’s pro se post-sentence

motion was effective in tolling the appeal period and that the appeal was

therefore timely lodged.

     Similarly, we relied upon a pro se notice of appeal, forwarded by a

represented litigant, to find an appeal timely filed in Commonwealth v.

Williams, 151 A.3d 621 (Pa. Super. 2016). There, Williams was resentenced

by the trial court on October 16, 2015. Following resentencing, counsel for

Williams filed a post-sentence motion on October 26, 2015. The court denied

that motion by order entered on October 29, 2015. Williams then had 30

days, or until Monday, November 30, 2015, to file a timely notice of appeal.

See Pa.R.A.P. 903; Pa.R.Crim.P. 720(A)(2)(a); 1 Pa.C.S.A. § 1908.

     Williams filed a pro se notice of appeal on November 19, 2015. Because

Williams was represented by counsel, his pro se notice of appeal was docketed

in the trial court and forwarded to counsel on November 25, 2015 pursuant to

Pa.R.Crim.P. 576(A)(4). Williams’ notice, however, was not forwarded to this




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Court. Thereafter, counsel for Williams filed an untimely notice of appeal on

December 1, 2015.

      In these circumstances, we held that this Court is required to docket a

pro se notice of appeal despite the appellant’s representation by counsel and

that the failure to forward the pro se notice from the trial court to this Court

constituted a breakdown in the operation of the courts. See Williams, 151

A.3d at 624. Our decision relied in part on our Supreme Court’s decision in

Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993), where the Court

distinguished between overburdening appellate courts with pro se briefs and

allowing for the protection of one's constitutional right to an appeal. We also

cited Superior Court Operating Procedure § 65.24, which provides that a pro

se notice of appeal received from the trial court must be docketed by the

Superior Court, even where the pro se appellant is represented by counsel in

the trial court.   In view of this breakdown in the judicial system, we

acknowledged Williams’ pro se submission as a timely notice of appeal.

      Although there is no evidence that counsel abandoned Appellant

following the imposition of sentence, we nevertheless find that a breakdown

in the court system permits us to treat Appellant’s pro se submission as a

timely post-sentence motion. On January 23, 2018, counsel for Appellant filed

a request to file a post-sentence motion nunc pro tunc, together with a

proposed post-sentence motion. As noted above, this request was filed within

30 days of the imposition of Appellant’s sentence and, therefore, met the first


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requirement articulated in Dreves. In addition, counsel’s request explained

that Appellant was sentenced on January 4, 2018 and that while a timely

post-sentence motion must be filed within ten days of sentencing, see

Pa.R.Crim.P. 720(A)(1), “a trial court may grant nunc pro tunc relief and allow

a [d]efendant to file a post-sentence motion more than ten days after

sentencing if such relief is [expressly] granted within 30 days of sentencing.”

Motion to File Post-Sentence Motion Nunc Pro Tunc, 1/23/18, at 1 para. 9,

citing Dreves, 839 A.2d at 1128. Counsel also noted that the trial court had

time to grant nunc pro tunc relief and explained that Appellant possessed just

cause to seek such relief since her immediate transfer to state prison

hampered her efforts to communicate with counsel within the ten-day period

after sentencing.6 See Motion to File Post-Sentence Motion Nunc Pro Tunc,

1/23/18, at 2 paras. 12 and 13(b). The trial court ultimately granted counsel’s

motion to seek post-sentence relief nunc pro tunc but not until the conclusion

of a hearing on February 26, 2018, more than 30 days after the imposition of

sentence. We deem the trial court’s failure to act on counsel’s timely motion

seeking nunc pro tunc relief to be a breakdown in the operation of the courts,

which should not foreclose appellate review. See Leatherby, 116 A.3d at 79

(“[An appellant] should not be precluded from appellate review based on what




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6 Appellant confirmed these allegations in her response to our show cause
order and the Commonwealth has not contested her averments.

                                          - 11 -
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was, in effect, an administrative breakdown on the part of the trial court.”).

Hence, we shall accept this appeal as timely.

       We turn now to Appellant’s substantive claim for appellate relief in which

she contends that, in view of her guilty plea to the summary citation for public

drunkenness filed in Case 1, the compulsory joinder rule found in 18 Pa.C.S.A.

§ 110(1)(ii) barred her prosecution and conviction for resisting arrest in Case

2.7

       Section 110 of the Crimes Code codifies the compulsory joinder rule and

in relevant part provides:

       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
____________________________________________


7 Appellant focuses her claim for relief on the compulsory joinder rule codified
at § 110 since she concedes that her contentions do not meet the more
rigorous standards incorporated under prevailing double jeopardy
jurisprudence. See Appellant’s Brief at 13 (“this appeal would not meet [the
criteria for] Double Jeopardy as deciphered in U.S. v. Blockburger[, 284 U.S.
299 (1932)] and U.S. v. Menna[, 423 U.S. 61 (1975)]” which require an
element-by-element analysis).

                                          - 12 -
J-A28015-18


            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.A. § 110(1)(ii).

       Our Supreme Court has held that § 110(1)(ii) bars a subsequent

prosecution whenever the following four-part 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 [are] within the same judicial
       district as the former prosecution.

Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013). The parties do not

contest establishment of the first, third, and fourth prongs;8 hence, we focus

our analysis on whether the facts before us constitute a single criminal episode

and whether the prosecution of the charges in Case 2 were based on the same

criminal conduct involved in Case 1.

       When considering whether offenses arose from a “single criminal

episode” (also known as the “logical relationship prong”), courts must look to

the temporal and logical relationship between the charges. Reid, 77 A.3d at



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8 As our recitation of the facts confirms, Appellant pled guilty and received a
sentence for public drunkenness in Case 1 approximately five months before
pleading nolo contendere to resisting arrest in Case 2. Also, the disposition
of the charges filed in Case 1 and the preliminary hearing held in Case 2
occurred on the same day and before the same district judge; thus, the
prosecution in Case 2 was aware of the charges filed in Case 1. Finally, all of
the charges filed in Case 1 and Case 2 arose and were prosecuted within the
same judicial district, Berks County.

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582.   Our Supreme Court offered the following guidance in assessing the

logical relationship between offenses:

       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.”

Commonwealth v. Hude, 458 A.2d 177, 181 (Pa. 1983). “[M]ere 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.” Commonwealth v. Bracalielly, 658

A.2d 755, 761 (Pa. 1995) (internal corrections omitted).

       The   Pennsylvania    Supreme     Court   has   repeatedly    stressed    the

significance of a substantial duplication of issues of law and fact before a

logical relationship can be found. In Reid, the Court said:

       We reiterate the 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. [Hude, 458 A.2d at 183]. There
       is no substantial duplication if “proof of each individual [offense
       requires the testimony of different police officers and witnesses at
       trial].” Bracalielly, [658 A.2d at 762.] 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

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      charges,” there is a “commonality” of legal issues within the two
      prosecutions. [Commonwealth v. Anthony, 717 A.2d 1015 (Pa.
      1998)]. 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.” Hude, [458 A.2d at 181] (citation and
      internal quotation marks omitted). Finally, in considering the
      temporal and logical relationship between criminal acts, [courts
      should be] 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.’” [Commonwealth v. Nolan, 855 A.2d
      834, 840 (Pa. 2004) (superseded by statute on other grounds)].

Reid, 77 A.3d at 585-586 (noting that “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 but requires courts to determine whether there is a substantial

duplication of issues of fact and law) (emphasis in original).

      Appellant maintains that a single criminal episode occurred in this case

because the events which led to her public drunkenness charge in Boyertown

“fluidly streamed together” with subsequent events that gave rise to her

resisting arrest charge in New Berlinville.      See Appellant’s Brief at 18.

According to Appellant, substantial duplication of law and fact has been

established because a single episode of alcohol consumption induced her

heavily intoxicated state, which persisted through both events. See id. at 19.

In Appellant’s view, because her first drunken encounter led to an escalated,

physical altercation with the police, the relevant events – which involved the

same actors albeit in two different settings - formed a “coherent stream of

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events” which must be viewed as a single criminal episode. Id. In addition,

Appellant faults the trial court for applying Supreme Court precedent too

rigidly in citing the passage of 30 minutes, the involvement of two local police

departments, and Appellant’s changing mental states as grounds for finding

separate criminal episodes.

      We are unpersuaded by Appellant’s argument which asserts that § 110

bars the instant prosecution for resisting arrest because Appellant previously

pled guilty to public drunkenness.      Instead, we conclude that the two

prosecutions arose from separate episodes that lacked the necessary logical

relationship as demonstrated through substantial duplication of factual and

legal issues. We explain.

      Appellant places great emphasis on her contention that her initial

consumption of alcohol at a bar in Boyertown caused her to become publicly

intoxicated and, thereafter, to engage in a physical altercation with two law

enforcement officers as they attempted to subdue her and place her into a

police cruiser. As the Commonwealth correctly points out, however, “the mere

fact that the events occurred on the same evening and were preceded by the

same bout of drinking does not, by itself, have the effect of combining them

into a single criminal episode.”    Commonwealth Brief at 12.       The record

confirms that the incidents sub judice took place at two distinct locations and

were separated by approximately 30 minutes.          In addition, there is no




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substantial duplication of law and fact which is sufficient to show a logical

relationship between the charged offenses.

      The Crimes Code defines public drunkenness at 18 Pa.C.S.A. § 5505 and

states:

      A person is guilty of a summary offense if he appears in any public
      place manifestly under the influence of alcohol or a controlled
      substance, as defined in the act of April 14, 1972 (P.L. 233, No.
      64),1 known as The Controlled Substance, Drug, Device and
      Cosmetic Act, except those taken pursuant to the lawful order of
      a practitioner, as defined in The Controlled Substance, Drug,
      Device and Cosmetic Act, to the degree that he may endanger
      himself or other persons or property, or annoy persons in his
      vicinity. A person convicted of violating this section may be
      sentenced to pay a fine of not more than $500 for the first
      violation and not more than $1,000 for the second and each
      subsequent violation.

18 Pa.C.S.A. § 5505.

      If   a   summary   trial   on   public    drunkenness   had   occurred,   the

Commonwealth would have called Officers Hoppes and Merry to testify

regarding their observations of Appellant exhibiting indicia of alcohol

intoxication. In addition, to demonstrate that Appellant’s intoxication made

her a danger to herself, to others, or to property (or had the effect of annoying

others in the vicinity), the Commonwealth may have called other witnesses

who observed Appellant’s actions before the arrival of the police. In sum, the

testimony that would have been adduced in Case 1 naturally would have

centered upon the nature and extent of Appellant’s inebriation and the effects

it had on her behavior. Although these issues were relevant to Case 1, they

would not have been relevant to Case 2. Moreover, any non-police witnesses

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J-A28015-18


present during the events of Case 1 would not have been present during the

events of Case 2. Case 1, the prosecution of the public drunkenness charge

against Appellant, therefore involved witnesses and issues that would not have

been presented at a trial of Case 2.

        The Crimes Code defines resisting arrest or other law enforcement at

18 Pa.C.S.A. § 5104 and states:

       A person commits a misdemeanor of the second degree if, with
       the intent of preventing a public servant from effecting a lawful
       arrest or discharging any other duty, the person creates a
       substantial risk of bodily injury to the public servant or anyone
       else, or employs means justifying or requiring substantial force to
       overcome the resistance.

18 Pa.C.S.A. § 5104.

       If a trial on Appellant’s resisting arrest charge had occurred, the

Commonwealth would have had to establish that Officers Hoppes and Merry

were attempting to effectuate a lawful arrest and that Appellant harbored the

intent to prevent that arrest when she became combative and resisted the

officers, or employed means that required substantial force to overcome. To

prove these facts, the Commonwealth clearly would have called the officers

but also may have called Appellant’s mother to testify. The testimony of the

witnesses in Case 2 would have focused on the circumstances leading to

Appellant’s arrest,9 the resistance employed by Appellant, and force expended


____________________________________________


9 These circumstances occurred at the residence of Appellant’s mother since
the officers released Appellant into her mother’s custody following the
previous incident in Boyertown.

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J-A28015-18


by the officers to overcome Appellant’s resistance. Appellant’s drunken state

might explain why the events relevant to Case 2 occurred but it was entirely

unnecessary to sustain a conviction. Again, the non-police witnesses, all of

the testimony, and the issues relevant to Case 2 were vastly different from

those in Case 1. As such, Appellant has not established substantial duplication

of law and fact between the cases and therefore cannot establish the requisite

logical relationship between the charges at Case 1 and Case 2.10

       In sum, Appellant points to only minimal duplication of factual and legal

issues. Although the same police officers witnessed the events in both cases,

all non-law enforcement witnesses would have been entirely different.

Moreover, while Appellant’s intoxication was the focus of Case 1, it had no

legal relevance in Case 2. For this reason, the substantive testimony from all

witnesses would differ vastly in nature from Case 1 to Case 2. Because there

was insufficient commonality between the prosecutions, no relief is warranted

on Appellant’s compulsory joinder claim.

       Judgment of sentence affirmed.



____________________________________________


10  As we stated above, Appellant’s theory is that her public drunkenness
“flowed naturally” into an escalated physical altercation with law enforcement
officials. While excessive intoxication might lead to any number of proscribed
acts, it cannot operate as carte blanche for the defendant to commit offenses
until he or she regains sobriety. Framed within the terminology of the
prevailing legal principles, Appellant’s intoxication does not give her a volume
discount on crimes she commits while under the influence of alcohol. As an
aside, there is no claim of procedural maneuvering on the part of the
Commonwealth in this matter.

                                          - 19 -
J-A28015-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2019




                          - 20 -
