J-S27014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JARED LEE MILLER,

                            Appellee                  No. 1696 MDA 2015


               Appeal from the Order Entered September 3, 2015
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0002059-2014


BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                                FILED MAY 13, 2016

       The Commonwealth of Pennsylvania appeals from the September 3,

2015 order dismissing charges filed against Jared Lee Miller (“Appellee”).

We reverse and remand for further proceedings.

       The trial court provided the following factual history:

             On October 13, 2014, [at approximately 9:30 a.m.]
       Corporal Robert Ligon observed a vehicle driving erratically
       through Tower City and performed a traffic stop. [Appellee] was
       a passenger. Corporal Ligon quickly discerned that the driver
       was under the influence of drugs and arrested her for driving
       under the influence. While performing a custodial inventory
       search, 48 packets of heroin were discovered under [Appellee’s]
       seat and 52 bags of heroin were found in the driver’s purse.
       Other drug paraphernalia was also found in the purse.
       [Appellee] was arrested and charged with possession with the
       intent to deliver a controlled substance, possession of a
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*
    Former Justice specially assigned to the Superior Court.
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        controlled substance, possession of drug paraphernalia, and
        public drunkenness under docket number CR-1880-2014. After
        his arrest, he was arraigned and then committed to Schuylkill
        County Prison. During intake at the prison [around 5:00 p.m.],
        [Appellee] was warned about bringing contraband inside, but he
        denied having any. A subsequent search by prison guards at
        intake produced a hypodermic needle containing heroin found
        inside his underwear. This led to the current contested charges
        under docket number CR-2059-2014.

Trial Court Opinion, 9/3/15, at 1–2.           The charges at CR-1880-2014 were

filed in Schuylkill County District Court 21-3-04.        Appellee was charged at

CR-2059-2014 with possession of a controlled substance by an inmate,

possession of drug paraphernalia, and contraband other than a controlled

substance.1 Those charges were filed in Schuylkill County District Court 21-

3-07.

        Appellee was tried by jury at CR-1880-2014 on April 6, 2014, and

found guilty of all charges except possession with intent to deliver a

controlled substance. He began serving his sentence on October 13, 2014,

and was paroled on June 15, 2015.              Three weeks later, on July 7, 2015,

Appellee filed a motion to dismiss the charges at CR-2059-2014, raising

defenses of double jeopardy and joinder. Motion for Reduction of Bail and

Dismissal of Charges, 7/7/15, at ¶¶ 13, 14.            The trial court conducted a

hearing on July 20, 2015, and accepted supplemental briefs. Thereafter, the

trial court granted Appellee’s motion to dismiss on September 3, 2015,
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1
  18 Pa.C.S. § 5123(a)(2), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S. §
5123(c), respectively.



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finding that the two incidents were part of a single criminal episode. Trial

Court Opinion, 9/3/15, at 5.

       This appeal followed. The Commonwealth presents a single question

for our consideration: “Did the Trial Court err in determining that the facts

in the instant matter constituted the ‘same criminal episode’ as those found

in docket # 1880-2014 and subsequently granting [Appellee’s] Motion for

Dismissal.” Commonwealth’s Brief at 4.

       The Commonwealth argues that trying Appellee at CR-2059-2014 does

not violate the federal or state constitutional guarantee against double

jeopardy2 or Pennsylvania’s compulsory joinder rule, 18 Pa.C.S. § 110.

According to the Commonwealth, because “the two incidents occurred at

different times, at difference places, following a clear break in criminal

activity and involved different facts and witnesses they were not of the same

criminal episode.” Commonwealth’s Brief at 7. We agree.

       The double jeopardy guarantee requires a prosecutor to bring all

known charges against a defendant arising from a “single criminal episode”

in a single proceeding. Commonwealth v. Campana, 304 A.2d 432, 441
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2
   See U.S. Const. amend. V (“nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb”); Pa. Const. art. I, § 10
(“No person shall, for the same offense, be twice put in jeopardy of life or
limb”). “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.”
Commonwealth v. States, 891 A.2d 737, 741 (Pa. Super. 2005).




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(Pa. 1973), vacated and remanded, 414 U.S. 808, (1973), reinstated, 314

A.2d 854 (Pa. 1974), cert. denied, 417 U.S. 969 (1974). “The compulsory

joinder statute[3] is a legislative mandate that a subsequent prosecution for a

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

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

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

As our Supreme Court has explained:

       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 [are] within the same
       judicial district as the former prosecution.

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

citations omitted); 18 Pa.C.S. § 110(1). “Each prong of this test must be

met for compulsory joinder to apply.”            Fithian, 961 A.2d at 72.   Our

Supreme Court has further stated, “Pennsylvania’s compulsory joinder rule

. . . is designed to protect a defendant’s double-jeopardy interests where the

Commonwealth initially declines to prosecute him for the present offense,

electing to proceed on different charges stemming from the same criminal

____________________________________________


3
   18 Pa.C.S. section 110 is a codification of the rule announced by our
Supreme Court in Campana. Commonwealth v. Gimbara, 835 A.2d 371,
374 (Pa. Super. 2003).



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episode.”   Commonwealth v. Laird, 988 A.2d 618, 628 (Pa. 2010)

(citations omitted).

      Because the constitutional and statutory claims asserted herein are

purely matters of law, our scope of review is plenary. Commonwealth v.

Barber, 940 A.2d 369, 376 (Pa. Super. 2007) (citation omitted). As with all

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

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (quoting

Commonwealth v. Kositi, 880 A.2d 648, 652 (Pa. Super. 2005)).

      The case at hand involves the second prong of section 110, known as

the logical relationship prong.      We have addressed a logical relationship

analysis as follows:

             In the seminal case of Commonwealth v. Hude, 500 Pa.
      482, 458 A.2d 177 (1983), we instructed courts considering the
      logical relationship prong to look at the “temporal” and “logical”
      relationship between the charges to determine whether they
      arose from a “single criminal episode.” Id., at 181. To this end,
      we noted:

            Generally, charges against a defendant are clearly
            related in time and require little analysis to
            determine that a single criminal episode exists.
            However, in defining what acts constitute a single
            criminal episode, not only is the temporal sequence
            of events important, but also the logical relationship
            between the acts must be considered.

      Id.

            With regard to the logical relationship, we 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

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           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.”

     Id. (quoting Paul Jerome Richey, Comment, Commonwealth v.
     Campana and Section 110 of the Crimes Code: Fraternal Twins,
     35 U. Pitt. L.Rev. 275, 286–87 (1973)).

            In Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d
     755 (1995), we interpreted Hude’s guidance on the logical
     relationship determination as follows:

           In 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
           Hude, we found that such substantial duplication
           had occurred. We did not, however, reach this
           conclusion by merely cataloguing simple factual
           similarities or differences between the various
           offenses with which the defendant was charged.
           Rather, we found that these offenses presented
           substantial duplication of issues of law and fact
           because the case did not involve “a situation where
           different evidence was required to be introduced to
           establish the alleged individual instances of
           possession and delivery”, but rather, involved a
           situation in which the Commonwealth’s case in both
           the first and second drug trials rested solely upon
           the credibility of a single witness. Thus, we
           concluded that the drug charges brought against the
           defendant were not only temporally related but also
           logically related, and thus constituted a single
           criminal episode.

     Id., at 761–62 (internal citations and footnote omitted).

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Commonwealth v. Reid, 77 A.3d 579, 582–583 (Pa. 2013). “There is no

substantial duplication, for example, if “proof of each individual instance of

[crimes committed] . . . require[s] the introduction of the testimony of

completely different police officers and expert witnesses as well as the

establishment of separate chains of custody.”           Id. at 585 (quoting

Bracalielly, 658 A.2d at 762).

      Here, relying on Commonwealth v. Edwards, 399 A.2d 747, 748

(Pa. Super. 1979), the trial court conducted a logical relationship analysis

and concluded that a single criminal episode existed:

             [Appellee] provided case law to support his position that
      the offenses were from a single criminal episode, but all were
      distinguishable    from     the    present   facts.    However,
      Commonwealth v. Edwards, 264 Pa. Super. 223, 225, 399
      A.2d 747, 748 (1979) is analogous to the facts presented here.
      In Edwards, a witness saw the defendant and three co-
      defendants take packages from a United Parcel Services truck
      and speed off in a car. The witness provided a license plate
      number to police and soon after an officer stopped the vehicle
      and discovered one of the packages inside. Id. The defendant
      was an occupant of the vehicle and repeatedly gave false
      identification. Id. at 225, 749. His true identity was not
      determined until he was fingerprinted. Id. The defendant was
      then separately charged with unsworn falsification to authorities
      and he pled guilty to this charge. Id. Several months later, he
      was tried by jury with his co-defendants on the theft charges
      which resulted in a mistrial.     Id.   When a new trial was
      scheduled, the defendant appealed, raising the double jeopardy
      issue. Id. The court found that in many situations, unlawful
      conduct committed at the time of arrest is part of the same
      episode as the original crime. Id. at 228, 750. The court cited
      the Model Penal Code, explaining,

            in many instances one offense is a necessary step in
            the accomplishment of a given criminal objective; in

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            other instances the commission of an additional
            offense may result from the attempt to secure the
            benefit of a previous offense or to conceal its
            commission. . . such offenses should be adjudicated
            in a single trial.

      Id.    The court concluded that by hiding his identity, the
      defendant was attempting to avoid prosecution for the theft
      offenses. It is also noted that the attempts to mislead police
      occurred within thirty minutes of the alleged offenses and his
      actions were relevant evidence in his theft trial, reflecting a
      guilty state of mind. Id. The court concluded that the charges
      should have been consolidated. Id.

             Here, [Appellee] was charged with numerous drug offenses
      relating to heroin and was arrested and being processed for
      intake into the prison when more heroin in a syringe was found
      on his person. His separate offenses were all drug related and
      occurred within hours of each other. Since [Appellee] never left
      police custody, [Appellee] must have had the heroin on his
      person during the initial traffic stop but it went undiscovered by
      police. Like Edwards, [Appellee’s] continued concealment of
      the syringe of heroin on his person was an attempt to conceal
      another offense and to avoid adding even more drug charges to
      his case. His possession of the heroin on his person could even
      have been used as evidence of intent for personal use, rather
      than to sell. There is a substantial duplication of law and fact.
      This Court concludes that [Appellee’s] possession of the syringe
      was part of the same criminal episode as the charges for which
      he was originally prosecuted and should have been consolidated
      with those charges for trial.

Trial Court Opinion, 9/3/15, at 4–5.

      We reiterate that “the determination of whether . . . the offenses

present a substantial duplication of issues of fact and law . . . depends

ultimately on how and what the Commonwealth must prove in the

subsequent prosecution.”   Reid, 77 A.2d at 585. Here, different evidence

was required to establish the offenses alleged in each case.


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       The first incident occurred at 9:30 a.m. and involved a traffic stop

where Appellee was a passenger. The second incident occurred seven hours

later at 5:00 p.m. and involved Appellee’s intake at the Schuylkill County

Prison. The first incident involved forty-eight bags of heroin stashed under

Appellee’s seat, and fifty-two bags of heroin and syringes in the driver’s

purse.      The second incident involved a hypodermic needle containing

heroin—not a syringe—found in Appellee’s underwear.4                       The evidence

supports a reasonable inference that Appellee possessed the hypodermic

needle at the time of his arrest; however, its presence on his person did not

give     rise    to   criminal   charges   until   its    discovery   at   intake.    Cf.

Commonwealth v. Stewart, 425 A.2d 346, 348 (Pa. 1981) (holding single

criminal episode existed where firearm and drugs were found on defendant

“at precisely the same time”).             Although Appellee remained in custody

throughout the day, the Commonwealth’s witness for the first incident was

Corporal        Ligon.    The    second    incident      involved   completely   different

Commonwealth witnesses—the prison guards. Accord Commonwealth v.

Purnell, 516 A.2d 1203, 1207 (Pa. Super. 1986) (rejecting compulsory

joinder argument where defendant was arrested by an officer for disorderly

conduct then charged with assaulting a different officer upon arrival at the

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4
   Affidavit of Probable Cause, 12/3/14. The police overlooking a single
needle in Appellee’s underwear upon searching him incident to arrest is a
more plausible scenario than failing to detect a syringe on his person.



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police station). Nothing in the record indicates that Appellee was asked if he

had drugs or paraphernalia on his person at the time of arrest. However, at

intake, Appellee was asked and denied having contraband.       Although both

incidents involved possession charges, the first incident also included a

charge of public drunkenness, and the second incident involved charges

specific to Appellee’s status as an inmate.

      In light of the foregoing, we conclude there was no substantial

duplication of issues of fact or law. Thus, the two prosecutions did not arise

from the same criminal episode.          Furthermore, we agree with the

Commonwealth that Edwards is distinguishable:

      In finding [that the two sets of charges were based upon conduct
      that constituted the same criminal episode], the [Edwards] Court
      noted that the false identification was “an effort to avoid
      prosecutions for the [theft] offenses, much as resisting arrest
      would be.” [Edwards], at 750. Further, the giving of false
      identification “occurred within one-half hour of the alleged
      offenses, and while [the defendant] was still in the company of
      his accomplices making their ‘getaway.’” Id. Lastly, the opinion
      noted that the “false statements were relevant evidence against
      him in his trial for the principal offenses”. Id.

            None of the facts that this Honorable Court found pertinent
      in Edwards are true in this case. [Appellee] was not still in the
      company of his accomplice. He was not in the process of making
      a getaway from the initial charges. In taking contraband into
      the prison he was not trying to avoid prosecution for the initial
      charges. The taking of contraband into the prison did not
      happen within one-half hour of the initial charges, but seven and
      one-half hours. Finally, the taking of contraband into the prison
      was not relevant to prove that he initially possessed heroin with
      the intent to distribute it.




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Commonwealth’s Brief at 17.       Here, neither Appellee’s possession of a

hypodermic needle in his underpants while being processed at the county

prison nor his possession of controlled substances and syringes seven hours

earlier while a passenger in a vehicle was relevant to proving the other

offense.   Accord Commonwealth v. Walton, 592 A.2d 335, 338 (Pa.

Super. 1991) (holding that neither illegally possessing a firearm nor making

a false report to police was necessary to prove the other offense and,

therefore, the offenses did not occur as a part of the same criminal episode).

      The trial court erred in ruling otherwise and in dismissing the charges

against Appellee. Accordingly, we reverse.

      Order reversed. Case remanded for trial. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016




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