J-A30033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CONRTNEY CARTER

                            Appellant                   No. 2760 EDA 2014


                  Appeal from the Order Dated August 14, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003029-2013

BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

DISSENTING MEMORANDUM BY MUNDY, J.:                     FILED APRIL 18, 2016

        I respectfully dissent.     I do not agree that the controlled substance

offenses and the firearms crimes were part of the same criminal episode

such that 18 Pa.C.S.A. § 110 bars the prosecution of the firearms offenses

after Appellant was convicted of possessing narcotics. Accordingly, I would

affirm the trial court’s order denying Appellant’s motion to dismiss the

firearms charges under Section 110.

        I agree with the Majority that the only issue in this case is whether all

the charges arose out of the same criminal episode. Majority Memorandum

at 6.    In determining whether the crimes were part of the same criminal

episode, we must consider both the temporal and logical relationship

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*
    Former Justice specially assigned to the Superior Court.
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between the charges. Id. at 9. Offenses are logically related when there is

a substantial duplication of fact and law; a de minimis duplication is not

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

      In determining whether two offenses are logically related, courts must

look to the dual purpose of Section 110, which is “(1) to protect a person

accused of crimes from governmental harassment of being forced to undergo

successive trials for offenses stemming from the same criminal episode; and

(2) as a matter of judicial administration and economy, to assure finality

without unduly burdening the judicial process by repetitious litigation.”

Reid, supra at 583-584, quoting Commonwealth v. Anthony, 717 A.2d

1015, 1018-1019 (Pa. 1998).          “These policy concerns must not be

interpreted to sanction ‘volume discounting’ or [] to label an ‘enterprise’ [as]

an ‘episode.’”   Id. at 584, quoting Commonwealth v. Nolan, 855 A.2d

834, 840 (Pa. 2004).

      In this case, I would not give Appellant a volume discount for separate

and distinct criminal episodes that were not dependent on one another. The

temporal relationship of the two possession offenses is not determinative in

this case.   Because possession offenses are inherently ongoing, when the




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police find a defendant in possession of more than one illegal item, the

possession will always be temporally related.1

       In my view, the mere fact that police find a person in illegal possession

of more than one item does not necessarily establish that the possession

offenses arose out of the same criminal episode simply because the person

simultaneously possesses illegal contraband and it is seized or discovered at

the same time. Certain factual and legal similarities will usually be present

in simultaneous possession cases. For example, the same officer will usually

seize or discover all items that a defendant is illegally possessing at the one

time. Further, the chain of custody of the evidence and related suppression

issues will likely be the same. These factual and legal similarities will usually

be present simply because a defendant is found in simultaneous possession
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1
  I note that I disagree with the Majority that Commonwealth v. Walter
Stewart, 425 A.2d 346 (Pa. 1981), governs this case.                   Majority
Memorandum at 7. At the time that case was decided, the “same criminal
episode” analysis did not include the logical relationship factor. Instead, the
Walter Stewart Court noted that the possession of heroin and a firearm
arose out of the same criminal episode based only on their temporal
relationship. Walter Stewart, supra at 348 (explaining “the two offenses
… were clearly part of the same ‘episode’: appellant’s crimes consisted of the
possession of heroin and a gun at precisely the same time, 9:20 p.m. on
April 25[]”). Our Supreme Court did not add the logical relationship factor
to the “same criminal episode” analysis until its later decision in
Commonwealth v. Hude, 458 A.2d 177 (Pa. 1983). See Commonwealth
v. McPhail, 692 A.2d 139, 153 (Pa. 1997) (Newman, J., dissenting) (noting,
“in Hude, this Court engrafted a ‘logical relationship’ test to the Section 110
inquiry, drawing from the ‘same transaction’ analysis of compulsory
counterclaims. … Thus, this Court has determined that the definition of the
‘same criminal episode’ is no longer limited to acts that immediately connect
in time[]”).



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of multiple illegal items at one time.       However, these are de minimis

similarities that are insufficient to establish a logical relationship. See Reid,

supra at 582-583, quoting Commonwealth v. Bracalielly, 658 A.2d 755

(Pa. 1995). Therefore, in evaluating the logical relationship in simultaneous

possession cases, I would look beyond such de minimis similarities inherent

in the nature of the offenses.

      As the Majority notes, the firearms charges do not share any legal

elements with the controlled substances crimes. Majority Memorandum at

14. Moreover, the statutes do not criminalize similar conduct or have the

same purpose. Id.

      The certified record indicates there was no nexus between Appellant’s

purchase and possession of crack cocaine and his possession of a gun.

Appellant was in unlawful possession of the firearm before he acquired the

crack cocaine. Appellant did not use the gun during the drug deal. Officer

Burgess, who observed the drug exchange from across the street through

binoculars, did not see a firearm. N.T., 3/20/13, at 13. Rather, the police

were unaware that Appellant had a firearm in his car at the time of his arrest

for purchasing and possessing crack cocaine.          Sergeant Ward did not

discover the firearm until the day after Appellant’s arrest, when the police




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conducted an inventory search of his vehicle.2 During his testimony, Officer

Burgess did not testify to observing Appellant making any unusual

movements, or reaching under the driver’s seat before, during, or after the

drug transaction.      The firearm was not mentioned during the suppression

hearing in the crack cocaine case. See id. at 4-24. Similarly, evidence of

the   drug    transaction    is   not   necessary   to   convict   Appellant   of   the

unauthorized possession of the firearm. Appellant’s possession of the gun

was not a logical step to his acquisition or possession of the drugs.

       Additionally, the policies underlying the compulsory joinder rule of

Section 110 weigh against precluding a trial on the firearms offense because

Appellant would get a volume discount for coincidentally having an

unlicensed firearm in his vehicle at the same time he purchased and

possessed crack cocaine.          See Reid, supra at 584.          Therefore, I would

conclude the crimes were not part of the same criminal episode because the

unauthorized possession of the gun was not connected to illegally possessing

the narcotics in this case.

       Based on the foregoing, I would affirm the trial court’s August 14,

2014 order denying Appellant’s motion to dismiss under Section 110.                   I

respectfully dissent.


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2
 That the same officer conducted the inventory search is a coincidence that
does not preclude a second trial on the firearm violations.



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