J-S23026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

GARY THOMPSON,

                            Appellee                 No. 1426 EDA 2014


                   Appeal from the Order Entered April 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012336-2011


BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 19, 2015

       The Commonwealth of Pennsylvania appeals from the order entered on

April 7, 2014, that dismissed the charges filed at docket number CP-51-CR-

0012336-2011 against Appellee, Gary Thompson, pursuant to 18 Pa.C.S. §

110.    We reverse and remand for further proceedings consistent with this

memorandum.

       The relevant facts of this matter were set forth in the trial court’s

opinion as follows:

             The below-listed facts represent the case for the October
       arrest (CP-51-CR-0012336-2011). On October 11, 2011, as a
       result of a police narcotics surveillance operation in the area of
       906 W. Huntingdon Street, Philadelphia, PA (hereinafter “subject
       house”), the police arrested Robert Beckham. Mr. Beckham was
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S23026-15


     observed performing a hand-to-hand transaction with a
     pedestrian, where Mr. Beckham delivered two packets of
     marijuana in exchange for U.S. currency. Not long after,
     [Appellee] was observed exiting the subject house, engaging in a
     conversation with Mr. Beckman, and accepting a large volume of
     U.S. currency from Mr. Beckham. Mr. Beckham was arrested
     after he left the subject house.

            Following the arrest, a female individual, who observed Mr.
     Beckham’s arrest, hastily returned to the subject house,
     presumably to inform [Appellee] of the arrest. Immediately
     thereafter [Appellee] was observed exiting the subject house
     with a large duffel bag. [Appellee] got into a vehicle and drove
     off. The vehicle was subsequently stopped and [Appellee] was
     arrested. The large duffel bag recovered contained a large
     quantity of marijuana and multiple handguns. A search warrant
     was issued for the subject house, where law enforcement
     recovered marijuana, unused packaging for the drugs (jars and
     lids), a ballistic vest, and $1,866.

           The below-listed facts represent the case related to the
     December arrest (CP-51-CR-0002319-2012). On December 6,
     2011, through December 9, 2011, the police conducted a
     narcotics surveillance operation at the subject house and on the
     house next door (908 W. Huntingdon Street, hereinafter the
     “adjacent house”). On December 6, 2011, a confidential
     informant (hereinafter “CI”) purchased marijuana from
     [Appellee]. The CI approached [Appellee], who was sitting on
     the front steps of the subject house. After a brief conversation,
     [Appellee] went into the subject house and, upon his return, he
     engaged in a hand-to-hand transaction of marijuana with the CI.

           On December 7, 2011, the CI went back to the subject
     house, and a relative of [Appellee’s], from the window of the
     adjacent house, informed the CI that [Appellee] was not home.
     She then asked, “what do you need?” The relative then came
     downstairs and engaged in a hand-to-hand transaction of
     marijuana with the CI. On December 9, 2011, search warrants
     were executed on the subject house and the adjacent house.
     Handguns, as well as new and unused packaging (jars and lids),
     baggies, and a scale were recovered from the adjacent house—a
     box for one of the said handguns was recovered from the subject
     house.


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Trial Court Opinion, 12/12/14, at 3-4.        The trial court also explained the

procedural history of this case as follows:

            The procedural history in this case is somewhat complex.
      On October 11, 2011, [Appellee] was arrested for events that
      took place in around this date and charged with manufacture,
      delivery, or possession with intent to manufacture or deliver (35
      P.S. §780-113); conspiracy to manufacture, deliver, or
      possession with intent to manufacture or deliver (18 Pa.C.S.A.
      §903); firearms not to be carried without a license (18 Pa.C.S.A.
      §6106); two counts of possessing instruments of crime (18
      Pa.C.S.A. §907); possession of a controlled substance (35 P.S.
      §780-113); and carrying firearms on public streets or public
      property in Philadelphia (18 Pa.C.S.A. §6108).

            On December 9, 2011, [Appellee] was arrested for events
      that took place in around December 6, 2011, through to
      December 9, 2011, and charged with conspiracy to manufacture,
      deliver, or possession with intent to manufacture or deliver (18
      Pa.C.S.A. §903); possession of firearm prohibited (18 Pa.C.S.A.
      § 6105); possession of marijuana (35 P.S. §780-113); use
      and/or possession of drug paraphernalia (35 P.S. §780-113);
      possessing instruments of crime (18 Pa.C.S.A. §907); and
      manufacture, delivery, or possession with intent to manufacture
      or deliver (35 P.S. §780 - 113).

            On November 1, 2013, the Commonwealth filed a dual
      motion entitled, “Notice of Intent to Introduce Other Acts or
      Evidence [Pa.R.E. 404(b)] and Motion to Consolidate Matter for
      Joint Trial [Pa.R.Crim.P. 582]” (hereinafter the “dual motion”).
      The 404(b) component of the dual motion moved to admit
      evidence related to the December arrest (hereinafter the
      “December arrest”) to be used at trial for the October arrest
      (hereinafter the “October arrest”) in order to demonstrate a
      common plan, scheme and design, or to establish motive, intent,
      knowledge, identity, or absence of mistake. The Rule 582
      component of the dual motion moved for the December and the
      October arrests to be consolidat[ed]/joined into a single trial.
      The case for the December arrest, however, had already been
      adjudicated on March 18, 2013, some eight months prior to the
      Commonwealth’s joinder request.1 On November 25, 2013, the
      Honorable Charles Ehrlich granted the 404(b) component of the


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     dual motion. The dual motion’s Rule 582 joinder request was
     never ruled upon.
           1
              In the case related to the December arrest,
           [Appellee] was found guilty of PWID and sentenced
           to house arrest.

           On December 10, 2013, [Appellee] filed with the
     Honorable Kenneth Powell a Motion to Dismiss the case related
     to the October arrest pursuant to 18 Pa.C.S.A. §110.
     [Appellee’s] motion asserted that the October and December
     arrests should have been consolidated into a single trial because
     both cases stemmed from the same criminal episode; thus, since
     the two cases were not joined, the October arrest should be
     dismissed on the grounds that [Appellee] was formally
     prosecuted for the same offense when he was adjudicated for
     the December arrest. On December 23, 2013, [Appellee’s]
     Motion to Dismiss was denied. On December 31, 2013, the
     Defendant filed a Motion to Reconsider Order Denying Motion to
     Dismiss with the Honorable Sean Kennedy. Judge Kennedy
     granted [Appellee’s] Motion to Dismiss on March 4, 2013, but
     the case dismissal was stayed for 30 days pending the
     Commonwealth’s Appeal.

           On March 9, 2014, the Commonwealth filed a Motion to
     Reconsider the dismissal. The Commonwealth’s motion argued
     that the October and December arrests were unfit to be
     consolidated, which [the trial court concluded] was a position in
     opposite of its previous Rule 582 joinder request. On April 7,
     2014, an Order was issued denying [the] Commonwealth’s
     Motion to Reconsider, and the October arrest case was
     dismissed. The Commonwealth filed a timely appeal and a
     subsequent statement of errors complained of on appeal,
     pursuant to Pa.R.A.P. 1925(b).

Trial Court Opinion, 12/12/14, at 1-3.

     In this appeal, the Commonwealth raises one issue for this Court’s

consideration:

     Did the lower court err when it dismissed the charges against
     [Appellee] based on 18 Pa.C.S. § 110?


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Commonwealth’s Brief at 4.      Specifically, the Commonwealth asserts that

the trial court erred in concluding that prosecution of the October arrest was

barred by the prosecution of the December arrest and that the trial court

erred in concluding that judicial estoppel applied. Id. at 10, 13.

      Our standard of review of issues concerning 18 Pa.C.S. § 110 is

plenary. Commonwealth v. George, 38 A.3d 893, 896 (Pa. Super. 2012)

(citation omitted). Section 110 provides, in relevant part, as follows:

      When prosecution barred           by former      prosecution for
      different offense

      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 same
         offense) and the subsequent prosecution is for:

                                     ***

            (ii) any offense based on the same conduct or arising
            from the same criminal episode, if such offense was
            known to the appropriate prosecuting officer at the
            time of the commencement of the first trial and
            occurred within the same judicial district as the
            former prosecution unless the court ordered a
            separate trial of the charge of such offense[.]

18 Pa.C.S. § 110(1)(ii).

      The policies behind 18 Pa.C.S. § 110 serve two purposes: “to protect

accused persons from governmental harassment of undergoing successive

trials for offenses stemming from the same episode, and to promote judicial



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economy and finality by avoiding repetitious litigation.” George, 38 A.3d at

896 (Pa. Super. 2012) (citation omitted). “By requiring compulsory joinder

of all charges arising from the same criminal episode, a defendant need only

‘once run the gauntlet’ and confront the awesome resources of the state.”

Id. (quoting Commonwealth v. Hude, 458 A.2d 177, 180 (Pa. 1983)).

      The test for whether 18 Pa.C.S. § 110 bars a subsequent prosecution

was set forth in Commonwealth v. Fithian, 961 A.2d 66 (Pa. 2008); the

elements of that test are as follows:

      (1) the former prosecution must have resulted in an acquittal or
      conviction;

      (2) the current prosecution is based upon the same criminal
      conduct or arose from the same criminal episode as the
      former prosecution;

      (3) the prosecutor was aware of the instant charges before the
      commencement of the trial on the former charges; and

      (4) the current offense occurred within the same judicial district
      as the former prosecution.

Id. at 72 (emphasis added).

      Here, only the second prong, known as the “logical relationship”

prong, is at issue.   In Commonwealth v. Reid, 77 A.3d 579 (Pa. 2013),

the Pennsylvania Supreme Court applied its earlier holding from Hude and

instructed that courts considering the logical-relationship prong should look

at the temporal and logical relationship among the charges to determine

whether they arose from a single criminal episode.     Reid, 77 A.3d at 582

(citing Hude, 458 A.2d at 181). The Reid Court explained:

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     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.

Reid, 77 A.3d at 582 (quoting Hude, 458 A.2d at 181).                     The Court

continued:

             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.

Id. (quoting Hude, 458 A.2d at 181).

             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

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           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.

Reid, 77 A.3d at 582-583 (quoting Commonwealth v. Bracalielly, 658

A.2d 755, 761-762 (Pa. 1995)).     The Supreme Court also cautioned lower

courts against “cataloguing simple factual similarities or differences and

interpreting the term single criminal episode too rigidly.” Reid, 77 A.3d at

581-582 (internal quotation marks omitted).

     In the case at bar, the Commonwealth claims that the October and

December    arrests   were   not   part   of   the   same   criminal   episode.

Commonwealth’s Brief at 10. The Commonwealth asserts that:

     the prosecution arising from the October arrest and the
     prosecution arising from the December arrest related to different
     criminal episodes. The two episodes were two months apart.
     Moreover, they were not logically connected. They involved
     different buyers (one was a CI and one was not), different police
     officers, and different co-conspirators. [Appellee] delivered drugs
     to the buyer directly in the December episode, while Beckman
     delivered drugs in the October episode. [Appellee’s] relative was
     involved in [the] December episode but not the October one,
     and Beckman was involved in the October episode but not the
     December one. Because different evidence would be necessary
     to prove the offenses in each case, there is no substantial
     duplication of issues of fact and law, and the two prosecutions
     related to separate episodes.

Commonwealth’s Brief at 11-12.

     We agree with the Commonwealth and conclude that the events

supporting the October arrest and the December arrest were not part of the

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same criminal episode.           The prosecutions do not depend on the same

evidence or the credibility of one witness.       The buyers, sellers, and police

officers were different in each instance.        Thus, we conclude that the trial

court erred in finding that the October arrest and the December arrest were

part of one criminal episode.

       Additionally, the Commonwealth avers that the trial court erred in

concluding that it was estopped from opposing Appellee’s motion for

dismissal.    Commonwealth’s Brief at 13.         The trial court considered the

Commonwealth’s mention of Rule 582 and discussion of joinder as an

assertion that the October and December arrests were necessarily part of

the same criminal episode. The trial court concluded as follows:

             In the present matter, the Commonwealth           filed a dual
       motion, which included a motion to consolidate           [Appellee’s]
       October and December arrests for joint trial,           pursuant to
       Pa.R.Crim.P. 582.[1] After the 404(b) component         of the dual
____________________________________________


1
    Rule 582. Joinder--Trial of Separate Indictments or Informations

       (A) Standards

       (1) Offenses charged in separate indictments or informations
       may be tried together if:

          (a) the evidence of each of the offenses would be
          admissible in a separate trial for the other and is capable
          of separation by the jury so that there is no danger of
          confusion; or

          (b) the offenses charged are based on the same act or
          transaction.
(Footnote Continued Next Page)


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J-S23026-15


      motion was granted, [Appellee] filed a Motion to Dismiss,
      pursuant to Pa.C.S.A. § 110, advocating that the October arrest
      was from the same criminal episode as the December arrest;
      therefore, failure to consolidate barred subsequent prosecution.
      In response to [Appellee’s] Motion to Dismiss, the
      Commonwealth advocated a position contrary to its previous
      motion to consolidate and asserted that the two matters were
      not fit to be joined.

Trial Court Opinion, 12/12/14, at 11.

      The trial court continued:

            The Commonwealth claims that the joinder component of
      its dual motion was a mistake, with an unfortunate caption; and,
      although filed with the Court, the Commonwealth maintains it
      never had any intention to consolidate the two matters. Yet,
      there are numerous instances in the dual motion that indicate
      otherwise. For instance, the dual motion clearly stated that it
      was being offered to the Court pursuant to Pa. R.E. 404(b) and
      pursuant to Pa. R. Crim.P. 582. The dual motion also specifically
      requested to take it as “an intention to introduce at trial . . .
      evidence of other crimes, wrongs, or acts, if joinder of both
      criminal matters is not granted.” (emphasis added). As
      previously stated, the dual motion also asserted that, “both
      cases consolidated together illustrate that there is a common
      scheme.” (emphasis added and original, respectively). In
      addition, the Commonwealth’s only requested relief under the
      dual motion’s “WHEREFORE” paragraph “respectfully request[ed]
      that these cases be consolidated for a joint trial.”

Trial Court Opinion, 12/12/14, at 11.

      The trial court then engaged in a discussion of judicial estoppel and its

effects in the present case. We note that judicial estoppel provides that “a

party in a criminal proceeding cannot argue for a specific ruling and then,

                       _______________________
(Footnote Continued)

Pa.R.Crim.P. 582(A)(1).



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after obtaining a favorable ruling, claim that the trial judge committed an

error of law in making that ruling.” Commonwealth v. Hayes, 755 A.2d

27, 35 (Pa. Super. 2000).2

       As noted above, Pa.R.Crim.P. 582 permits offenses charged in

separate informations to be tried together if: the evidence of each of the

offenses would be admissible in a separate trial for the other and is capable

of separation by the jury so that there is no danger of confusion; or the

offenses charged are based on the same act or transaction.      Pa.R.Crim.P.

582(A)(1)(a) and (b). However, we point out that the Commonwealth never

claimed that the October arrest and the December arrest were part of one

criminal episode.        Rather, the Commonwealth argued that the facts

____________________________________________


2
  With respect to the viability of the doctrine of judicial estoppel in
Pennsylvania, we note that:

       A panel of this Court once held that notions of equity have no
       place in criminal proceedings. See Commonwealth v. Shinn,
       368 Pa.Super. 436, 534 A.2d 515, 518 (1987) (holding that
       “equitable estoppel has no place in the criminal law”).
       Nonetheless, a later panel has given equitable doctrines, in a
       criminal context, an imprimatur of validity. This Court, in
       Commonwealth v. Lam, 453 Pa.Super. 497, 684 A.2d 153
       (1996), examined the concept of judicial estoppel as a viable
       doctrine in criminal proceedings. See Lam, 684 A.2d at 164–65.
       Although it ultimately proved to be an unsuccessful argument,
       that panel accepted judicial estoppel as a practical theory. See
       id.

Hayes, 755 A.2d at 35 (footnote omitted).




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underlying the October and December arrests were part of a common

scheme under Pa.R.E. 404(b). Notice of Intent to Introduce Other Acts or

Evidence and Motion to Consolidate Matters for Joint Trial, 11/1/13, at 3-5.

       In Commonwealth v. Spotz, 756 A.2d 1139 (Pa. 2000), our

Supreme Court discussed the distinction between evidence admitted under

Pa.R.E. 404(b) and evidence constituting a single criminal episode:

       Initially, we reject appellant’s suggestion that, merely because
       certain evidence of appellant’s previous crimes was relevant and
       admissible in this prosecution, the crimes must be deemed to be
       part of the same criminal episode. Other crimes evidence may be
       admissible, as it was here, for a wide variety of evidentiary
       purposes; but that fact alone does not prove such a logical
       connection between the acts so as to constitute a single criminal
       episode.

Spotz, 756 A.2d at 1158.

       Here, the purpose of the Commonwealth’s motion was to introduce

direct evidence of Appellee’s involvement in the sale of drugs, as illustrated

through the scheme common to both the October and December arrests.

Notice of Intent to Introduce Other Acts or Evidence and Motion to

Consolidate Matters for Joint Trial, 11/1/13, at 3-5.    The intention of the

motion was never a joint trial. Indeed, the Commonwealth avers that the

inclusion of “joint trial” language was a mistake. Commonwealth’s Brief at

14.3 The trial court rejected this explanation and discussed the language in

____________________________________________


3
  The Commonwealth made this same argument at the April 7, 2014
hearing. The Commonwealth averred that joinder was impossible and that
(Footnote Continued Next Page)


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the motion concerning a common scheme and found it was a request for

joinder.      Trial Court Opinion, 12/12/14, at 11.             However, as discussed

above, the language in the motion alleges only common scheme, not a

motion for joinder claiming a single criminal episode.             Additionally, at the

time the Commonwealth filed its motion, a joint trial was not possible, as

the crimes underlying the December arrest had already been prosecuted to

conviction. We conclude that because the language in the motion focuses on

a request under Pa.R.E. 404(b), and given the impossibility of the relief

allegedly sought by the Commonwealth, the joint trial language was included

in   error.      Accordingly,     what     remains   in   the    motion   is    only   the

Commonwealth’s request under Pa.R.E. 404(b). Thus, because we conclude

that the Commonwealth did not argue for joinder, it cannot be estopped

from arguing against it.

       For the reasons set forth above, we conclude the trial court erred in

granting Appellee’s motion to dismiss pursuant to 18 Pa.C.S. § 110.

Therefore, we reverse the order granting Appellee’s motion to dismiss and

remand this matter to the trial court to reinstate the charges from docket

number CP-51-CR-0012336-2011.

       Order reversed. Case remanded with instructions.                        Jurisdiction

relinquished.
                       _______________________
(Footnote Continued)

the inclusion of the joinder language was a “cutting [and] pasting issue” and
was “clearly a mistake.” N.T., 4/7/14, at 3-4.



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     Judge Donohue joins the Memorandum.

     Judge Strassburger files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2015




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