J-S34016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA

                             Appellee

                        v.

    JIMMY CARNES

                             Appellant                 No. 1499 WDA 2017


              Appeal from the Judgment of Sentence April 28, 2017
                in the Court of Common Pleas of Venango County
                Criminal Division at No: CP-61-CR-0000252-2016

BEFORE: BOWES, STABILE, AND STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                         FILED DECEMBER 31, 2018

        Appellant, Jimmy Carnes, appeals from his judgment of sentence of

imprisonment for being a felon in possession of a firearm, conspiracy, and

drug-related offenses.1 Appellant argues that the trial court erred in denying

his motion to dismiss all charges under Pennsylvania’s compulsory joinder

statute, 18 Pa.C.S.A. § 110.         We reverse and remand for dismissal of all

charges.

        The trial court summarized the factual and procedural history of this

case as follows:

        The charges in this matter arise out of an alleged hit-and-run
        incident that occurred on February 12, 2016 in Victoria Township,
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*   Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6105 and 903 and 35 P.S. § 780-113(32) and (35),
respectively.
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       Venango County, Pennsylvania. While travelling southbound on
       PA Route 8, [Appellant]’s vehicle allegedly hit another driver’s
       vehicle. Instead of stopping to survey the damage and confer with
       the driver whose vehicle he hit, [Appellant] continued driving.
       This conduct prompted the victim of the hit-and-run to call 911 to
       report the incident and to follow [Appellant]’s vehicle while
       awaiting police assistance. Polk Borough Police Sergeant Alan
       Heller responded to the call and initiated a stop of [Appellant]’s
       vehicle to investigate the hit-and-run. During the stop, Sergeant
       Heller found a “small baggy of cocaine” wedged in between the
       vehicle’s front seats.[2] Sergeant Heller accordingly arrested
       [Appellant], the driver, and another man who was sitting in the
       passenger seat at the time Sergeant Heller conducted the stop.

       Following [Appellant]’s arrest, he was lodged in Venango County
       Jail to await criminal prosecution for events that transpired on
       February 12, 2016.        The Commonwealth initially charged
       [Appellant] with possession of a controlled substance (cocaine),
       possession of drug paraphernalia and multiple Vehicle Code
       summary offense violations. On February 24, 2016, [Appellant]
       pled guilty [at CP-61-CR-0000199-2016] to possession of drug
       paraphernalia and two of the vehicle code summary offense
       violations; the Commonwealth withdrew all other charges against
       [Appellant].

       Following [Appellant]’s guilty plea, however, the Commonwealth
       brought additional firearm and drug-related charges against
       [Appellant], all of which stem from the events leading to
       [Appellant]’s February 12, 2016 arrest. The Commonwealth
       brought these additional charges after Leon Wagner, [Appellant]’s
       Venango County Jail cellmate while [Appellant] awaited criminal
       prosecution for his first criminal case, relayed inculpatory
       statements made by [Appellant] to a Venango County sheriff’s
       deputy. Specifically, Wagner told the deputy that [Appellant]
       stated that [Appellant] was happy that he was able to throw a box
       containing a handgun and drugs out of his vehicle’s window before
       Sergeant Heller effectuated the stop.       Based on Wagner’s
       statement, Pennsylvania State Police searched for the described
       items and recovered said items in the same geographic location
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2Sergeant Heller also recovered $2,700.00 in cash during the search. Notes
of Testimony (“N.T.”), 3/14/17, at 24-25.


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      Sergeant Heller arrested [Appellant] on March 1, 2016. As a result
      of finding the described physical evidence, the Commonwealth
      initiated felony and misdemeanor drug charges for the drugs
      found on the side of the road and a felony firearm charge.

      On April 27, 2016, a preliminary hearing was held where the
      parties developed testimony from Leon Wagner and Sergeant
      Heller. On July 6, 2016, [Appellant] filed a Motion to Dismiss the
      new charges against him, contending that the former prosecution
      for which he pled guilty barred this prosecution pursuant to 18 Pa.
      C.S.[A.] § 110. On September 27, 2016, this Court issued an
      order wherein it denied [Appellant]’s Motion to Dismiss because it
      found that the subsequent charges brought against [Appellant]
      were not logically related to the former prosecution. This case
      subsequently went to a non-jury trial [at CP-61-CR-0000252-
      2016] where [Appellant] was found guilty of the new charges and
      consequently sentenced.

Trial Ct. Op., 9/5/17, at 1-3 (citations to notes of testimony omitted).

      The trial court omitted several important details. Appellant’s cellmate,

Wagner, provided the tip on February 16, 2016, four days after Appellant’s

arrest and eight days before his guilty plea in the first case. Trial Transcript

(“T.T.”), at 27. During the preliminary hearing and trial in the second case,

Wagner testified that he gave the tip to a sheriff’s deputy and to Sergeant

Heller, the same officer who arrested Appellant in the first case. Preliminary

Hearing Transcript, 4/27/16, at 29, 31-32; T.T., at 34-37. Based on Wagner’s

tip, Sergeant Heller and other officers began searching for the box on Route

8. Although wintry conditions and the amount of snow on the ground impeded

the search, Sergeant Heller found part of the box on February 20, 2016, four

days before Appellant’s guilty plea in the first case. T.T., at 28-30. Sergeant

Heller testified that “we got the preliminary hearing [in the first case]



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continued for one week” as law enforcement officers searched Route 8. Id.

at 27. Sergeant Heller agreed that at the time of Appellant’s guilty plea in the

first case, the investigation on Route 8 was ongoing. Id. at 29.

      The trial court acknowledged that the two cases were “temporally

related” but found that they were not “logically related.”

      In the first prosecution, there was no evidence presented to this
      [c]ourt at trial because [Appellant] pled guilty before trial.[fn] At
      the non-jury trial for the subsequent prosecution, the
      Commonwealth called arresting officer Sergeant Heller to testify,
      a different police officer who testified to recovery of the firearm
      and additional drugs found at the scene days after [Appellant]’s
      arrest for purposes of establishing chain of custody of this new
      physical evidence, the jailhouse informant Leon Wagner who
      tipped the sheriff’s deputy off that [Appellant] threw a handgun
      and other drugs out of his vehicle’s window before pulling over for
      Sergeant Heller, and lab analysis confirming that the additional
      drugs found were, in fact, illegal narcotics. Because the second
      prosecution involved the calling of different, additional witnesses,
      the establishment of chains of custody for physical evidence
      obtained against [Appellant] separate from the cocaine found in
      [Appellant]’s vehicle, and introduction of expert testimonial
      evidence establishing that additional and different drugs—ecstasy
      pills—were found on the side of the road after [Appellant] threw
      them from his vehicle’s window, we find that there was no
      substantial duplication of factual or legal issues in the second
      prosecution.

      [fn]This [c]ourt declines to hazard a guess as to the types of evidence
      that Commonwealth would have presented against [Appellant] had the
      first prosecution went to trial. It is not the role of this [c]ourt to make
      such hypotheses.

Id. at 6-7 (footnote in original).

      Appellant filed timely post-sentence motions, which the court denied,

and a timely notice of appeal. Both Appellant and the trial court complied with

Pa.R.A.P. 1925. Appellant raises one argument in this appeal: “Whether the

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trial court erred in denying the Pre- and Post-trial motions seeking dismissal

of the charges on the basis that the prosecution was barred by 18 Pa. C.S.A.

Section 110 (1)(ii)?” Since the issue presents a question of law, our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Kolovich, 170 A.3d 520, 523 (Pa. Super. 2017).

      The compulsory joinder rule, 18 Pa.C.S.A. § 110, entitled “When

prosecution barred by former prosecution for different offense,” 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:

         (i) any offense of which the defendant could have been
         convicted on the first prosecution;

         (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; or

         (iii) the same conduct, unless:

            (A) the offense of which the defendant was formerly
            convicted or acquitted and the offense for which he is
            subsequently prosecuted each requires proof of a fact not
            required by the other and the law defining each of such
            offenses is intended to prevent a substantially different
            harm or evil; or

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            (B) the second offense was not consummated when the
            former trial began.

Id. The rule “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.”

Kolovich, 170 A.3d at 524. Its purpose is “(1) to protect a defendant from

the governmental harassment of being subjected to successive trials for

offenses stemming from the same criminal episode; and (2) to ensure finality

without unduly burdening the judicial process by repetitious litigation.” Id.

To that end, “our High Court held that the legislature intended that the

compulsory joinder statute be limited to mandating joinder only of those

offenses occurring in a single judicial district, even when offenses were part

of the same criminal episode.” Id.

      Section 110(1)(ii), the relevant provision for this appeal, bars

subsequent prosecution if all of the following four prongs are satisfied:

      (1) the “former prosecution resulted in an acquittal or conviction”;

      (2) the current prosecution “is based on the same criminal conduct or

      [arose] from the same criminal episode”;

      (3) the “appropriate prosecuting officer” in the subsequent trial was

      aware of the conduct underlying the subsequent charges before the first

      trial; and




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      (4) all charges are “within the same judicial district” as the former

      prosecution.

Id.

      Here, prongs (1) and (4) are satisfied, because Appellant’s first

prosecution resulted in a guilty plea and conviction on February 24, 2016, and

all charges in the present case were within the same judicial district as his

first prosecution.

      The test for prong (3) “is not whether [the defendant] could be charged,

but whether prosecuting officers knew of the offense” underlying the

subsequent charges before the first trial. Commonwealth v. George, 38

A.3d 893, 898 (Pa. Super. 2012). George teaches that “prosecuting officers”

include law enforcement officers as well as prosecuting attorneys. Prong (3)

was satisfied in George because agents of the Attorney General’s Office knew

of the offense underlying the charges in the defendant’s second case before

commencement of his first trial. Id. at 898-99. We reasoned:

      Appellee provided a statement admitting his involvement in a drug
      trafficking organization long before the grand jury investigated his
      involvement. He named Brent Rafferty as his supplier and advised
      that he had eight or nine customers. At the time of the statement,
      Rafferty was known to Agent Jerome Smith only as the owner of
      a vehicle that transported the target of the investigation, Tyson
      Joyner, to a drug buy conducted by Agent Catherine Bianchi in
      March of 2007. When Agent Bianchi read Appellee’s statement in
      September of 2007, in which he named Rafferty, a.k.a. “B,” as his
      supplier, and provided Rafferty’s cellular phone number, prices,
      and delivery locations, she admittedly knew that Rafferty was
      associated with Joyner in the sale of drugs. Such testimony
      seriously undermined Agent Bianchi’s subsequent testimony that
      she only became aware that Appellee was involved in a drug

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       trafficking ring with Tyson Joyner and Brent Rafferty as a result of
       the grand jury investigation. Furthermore, it was consistent with
       the concessions of Agent Bianchi and her supervisor, Jerome
       Smith, that Appellee’s earlier statement indicated that he was
       involved in drug trafficking with a group of individuals.

Id. (citations omitted).

       Here, as in George, prong (3) is satisfied because the same law

enforcement officer, Sergeant Heller, investigated both cases against

Appellant.    Sergeant Heller was the arresting officer in the first case.    He

learned about the conduct underlying the second case prior to Appellant’s

guilty plea in the first case, because he obtained the tip from Appellant’s

cellmate and recovered part of the box several days before the guilty plea.3

       Prong (2) requires us to examine whether the present prosecution was

based on the same criminal conduct or arose from the same criminal episode

as the first prosecution. “[I]n defining what acts constitute a single criminal



____________________________________________


3 Despite the George court’s willingness to include law enforcement officers
within the scope of “appropriate prosecuting officer[s],” one might ask
whether the plain meaning of this term is limited to prosecutors such as
District Attorneys or the Attorney General. In today’s decision, we must follow
our published opinion in George and extend this term to Sergeant Heller. In
a future case, this issue might warrant en banc review.

Had this term only applied to prosecutors, we would have remanded this case
for an evidentiary hearing as to whether the prosecuting attorney knew about
the conduct underlying Appellant’s second case before his guilty plea in the
first case. The present record does not resolve this question. Sergeant Heller
testified that during his investigation, “we” obtained a continuance of the
preliminary hearing in Appellant’s first case. T.T. at 27. It is unclear whether
“we” included the prosecutor. In view of George, however, further hearings
on this question are unnecessary.

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episode, not only is the temporal sequence of events important, but also the

logical relationship between the acts must be considered.” Commonwealth

v. Hude, 458 A.2d 177, 181 (Pa. 1983). The purpose of this rule is 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.”   Id. at 180.    More recently, our Supreme Court elaborated as

follows:

      [T]he 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.
      There is no substantial duplication if “proof of each individual
      instance of possession and delivery in each county . . . require the
      introduction of the testimony of completely different police officers
      and expert witnesses as well as the establishment of separate
      chains of custody[,]”or if “there were three victims in three
      different counties requiring three different investigations, and
      different witnesses were necessary at each trial.”                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 charges,” there is a “commonality” of legal issues
      within the two prosecutions. 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.”               Finally, in
      considering the temporal and logical relationship between criminal
      acts, we are 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. Reid, 77 A.3d 579, 585-86 (Pa. 2013).

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     Commonwealth v. Anthony, 717 A.2d 1015 (Pa. 1998), provides an

instructive example of this test. There, the defendant committed a series of

burglaries with juvenile cohorts. The Corry Police Department charged him

with corruption of minors alleging, among other things, that he enticed and

encouraged the juveniles to commit thefts and residential burglaries. The

defendant pled guilty and was sentenced. Thereafter, the Pennsylvania State

Police filed theft and burglary charges against the defendant. The Supreme

Court held that the compulsory joinder rule barred the second prosecution:

     [A] substantial duplication of issues of law and fact exists. The
     evidence to support appellant’s original conviction is the
     statement of appellant as taken by the Corry Police; the testimony
     and/or statements of Steven, Lucas and Sue Ann and Angela; the
     parents of the juveniles; and the Corry Police officers involved in
     the investigation. In the present prosecution all of the above
     witnesses will again be required to present the same testimony.
     Given that a high percentage of the testimony from the first trial
     must be repeated in the second trial, a substantial duplication of
     factual issues is obviously present.

     The only additional witnesses that would be called in the present
     trial that were not needed in the first trial are the victim of the
     burglary and the State Police. Although two different police
     departments are involved there is nothing of record indicating that
     two different investigations were ongoing, independent of each
     other, which led to the two separate prosecutions. To the
     contrary, the Corry Police were in possession of all relevant
     incriminating information regarding all the criminal activity set
     forth in both Informations prior to any involvement by the State
     Police. The Corry Police chose to forward the information to the
     State Police.     The dual involvement of two different law
     enforcement offices is not sufficient to preclude joinder of charges
     given the facts of this case. As for the legal issues, appellant’s
     first conviction for corrupting the morals of the minors was
     grounded on his encouraging and enticing the minors to commit
     burglaries and thefts. The second Information also charges
     burglary and theft, the variation in the form of the criminal

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       charges cannot disguise the commonality of the legal issues within
       the two informations. Thus, we find that the present charges did
       arise from the same criminal episode as the first set of charges as
       all of the criminal acts are temporally and logically related.

Id. at 1019-20.

       Here, as in Anthony, strong logical relationships exist between

Appellant’s two cases. Appellant’s first case involved a traffic stop that led to

discovery of drugs in his possession. Had this case gone to trial, Sergeant

Heller, the arresting officer, would have testified about the radio dispatch and

vehicle stop, where and when the stop took place, his observations during the

stop, the drugs and money he found during the stop and where he found them.

Sergeant Heller would also have identified Appellant as the vehicle driver and

identified the Commonwealth’s exhibits in order to enter them into evidence.4

All of this evidence was introduced during trial in the second case through the

same law enforcement officer, Sergeant Heller, so there was “substantial

duplication” between the facts relevant to both cases. Id. at 1019. To the

extent there was additional evidence in the second case—such as Sergeant

Heller’s investigation following Appellant’s arrest, the tip from Wagner, and

the discovery of the box by the roadside containing drugs—these additional


____________________________________________


4 The trial court overstates the matter by claiming that it could not “hazard a
guess” as to what evidence the Commonwealth would have introduced during
trial in the first case. Trial Ct. Op. at 6 n.3. No guesswork was necessary.
The Commonwealth would have introduced Sergeant Heller’s testimony and
authentication of the physical evidence because there was no other way to
prove these charges.


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facts were byproducts of the first case. Appellant discarded the box while

Sergeant Heller was pulling him over on the highway, the same traffic stop

that gave rise to the first case. Four days after Appellant’s arrest, Wagner

told Sergeant Heller about Appellant’s confession.      Wagner’s tip led to the

search along the roadside that culminated in the discovery of the box

containing the drugs. Finally, the charges in both cases are related: Appellant

was charged in both cases with possession of controlled substances in his

possession at the time of the traffic stop.        These temporal and logical

connections demonstrate that the first and second cases arose from the same

episode, thereby satisfying prong (2).5

       This case is distinguishable from other drug cases in which prong (2)

was not satisfied because the cases in question arose from different episodes.

For example, in Reid, the Supreme Court held that two cases involving drug

sales did not arise from the same episode, because

       different evidence was required to establish the offenses alleged
       in each case. The witnesses for the 2007 case were Detective
       Shoemaker, another member of the Drug Task Force, and the
       chemist who tested the cocaine—its locale involved a convenience
       store and the rear of the Hilltop Bar. The 2010 case, which alleged
       acts before and after the prior delivery, involved four witnesses in
       addition to Detective Shoemaker. Those acts occurred inside a


____________________________________________


5 Perhaps inadvertently, the trial court itself suggests this result. As stated
above, our Supreme Court said that the purpose of the compulsory joinder
rule is to prevent “successive trials for offenses stemming from the same
criminal episode.” Hude, 458 A.2d at 180. Echoing Hude, the trial court
states that all charges in the second case “stem” from the events leading to
Appellant’s arrest in the first case. Trial Ct. Op. at 2.

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      bar called “Two Tuesdays” and in appellant’s residence, and at
      times involved a middleman.

Id. at 586. In Commonwealth v. Bracalielly, 658 A.2d 755 (1995), the

defendant twice sold cocaine to a confidential informant in Allegheny County

and once sold cocaine to the same confidential informant in Butler County.

The Supreme Court held that the Butler County drug sale was not part of the

same criminal episode as the two sales in Allegheny County.        Butler County

and Allegheny County authorities were each conducting separate undercover

investigations of the defendant, so “proof of each individual instance of

possession and delivery in each county would not rest solely on the credibility

of a single witness, but rather, would require the testimony of completely

different police officers and expert witnesses as well as the establishment of

separate chains of custody.” Id. at 762. The sales in Reid and Bracalielly

took place in different times and places. Different evidence was necessary to

establish the defendant’s crimes in each case. Here, in contrast, both cases

arise from the same traffic stop, and the events in the first case were

foundational to the second case. The same police officer, Sergeant Heller,

investigated both cases, was a central witness in the second case, and would

have been a central witness had the first case gone to trial.

      For these reasons, we hold that all four prongs of the compulsory joinder

test are satisfied in this case, and the trial court erred by declining to dismiss

all charges against Appellant. To be clear, our decision does not affect the

judgment of sentence in the first case (CP-61-CR-0000199-2016) in any way.

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      Judgment of sentence reversed. Case remanded with instructions to

dismiss   all   charges      against   Appellant   at   CP-61-CR-0000252-2016.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2018




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