J-A08011-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANDRE HOWELL,

                            Appellant               No. 3407 EDA 2014


         Appeal from the Judgment of Sentence of November 7, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0005449-2014


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED MAY 19, 2016

       Andre Howell appeals from the judgment of sentence entered on

November 7, 2014, following his conviction for possession of a controlled

substance (“possession”).1 We vacate and remand this matter for entry of a




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1
  The Controlled Substance, Drug, Device, and Cosmetic Act (“Act”) prohibits
“Knowingly or intentionally possessing a controlled or counterfeit substance
by a person not registered under this act, or a practitioner not registered or
licensed by the appropriate State board, unless the substance was obtained
directly from, or pursuant to, a valid prescription order or order of a
practitioner, or except as otherwise authorized by this act.” 35 Pa.C.S. §
780-113(a)(16).



* Retired Senior Judge assigned to the Superior Court.
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guilty verdict to the crime of possession of a small amount of marijuana

(“SAM”)2 and for imposition of a new sentence.

       The trial court set forth the facts as follows:

       On January 23, 2013, shortly before 5:00 p.m., Philadelphia
       Police Officers Jorge Soto and his partner, Officer Dwayne White,
       were on routine patrol in the 5500 block of Harmer Street in
       Philadelphia, when Officer Soto saw Appellant retrieve an object
       from a plastic bag and hand it to another individual named
       Mitchell using a pitching motion. The officers stopped their
       vehicle at which time Mitchell threw the item Appellant tossed
       him to the ground and Appellant quickly placed the plastic bag
       into the pocket of his hooded sweatshirt.

       The officers recovered the object Mitchell discarded and
       observed alleged marijuana. Appellant was then searched and
       recovered from his sweatshirt pocket was a bag containing five
       Ziploc plastic bags containing alleged marijuana. Both men were
       then arrested. Subsequent testing of the substance in the six
       packets established that it was marijuana.        The marijuana
       totaled six grams.

Trial Court Opinion, 7/16/15, at 2 (internal citations omitted).

       Appellant was tried in municipal court and found guilty of possession

and possession with intent to deliver a controlled substance (“PWID”). He

appealed de novo to the trial court below. Following a nonjury trial on July

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2
  The Act bans possession or distribution of a small amount of marijuana,
defined as “thirty (30) grams” or less. It states,  “Notwithstanding other
subsections of this section, (i) the possession of a small amount of
marihuana only for personal use; (ii) the possession of a small amount of
marihuana with the intent to distribute it but not to sell it; or (iii) the
distribution of a small amount of marihuana but not for sale,” is prohibited.
35 Pa.C.S. § 780-113(a)(31).




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22, 2014, Appellant was found guilty of possession only. On November 7,

2014, the trial court sentenced him to six months non-reporting probation.

This timely appeal followed.3

       Appellant raises one issue for our consideration:

       Did not the lower court err in finding appellant guilty of
       knowingly or intentionally possessing a controlled substance in
       violation of 35 Pa.C.S. § 780-113(a)(16), where appellant
       possessed less than 30 grams of marijuana and therefore could
       only have been convicted of possession of a small amount of
       marijuana pursuant to § 780-113(a)(31), the more specific
       offense?

Appellant’s brief at 2.

       Before we reach the merits of the appeal, we must first consider

whether this issue is properly before us.              The Commonwealth argues

Appellant’s claim has been waived.               Commonwealth’s brief at 5.   The

Commonwealth maintains that Appellant asserted at trial that, since he was

not charged with SAM, he could not be convicted of SAM.                Under the

doctrine of judicial estoppel, the Commonwealth contends that Appellant

should be prohibited from assuming a position in this appeal inconsistent

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3
   The initial appeal from the judgment of sentence was filed on December 2,
2014, within thirty days after entry of judgment as required by Pa.R.A.P.
903. A series of motions to extend the time for Appellant to file his
Pa.R.A.P. 1925(b) concise statement of errors complained on appeal were
filed and granted. On April 10, 2015, the trial court issued an order
permitting Appellant to file his statement within twenty-one days of
counsel’s actual receipt of all notes of testimony. Appellant filed his Rule
1925(b) statement on June 19, 2015.



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with his assertions to the court below, i.e., that he should be convicted of

SAM.     Id.   Rather, the Commonwealth maintains that, by assuming a

contrary position at trial, Appellant did not provide the trial court with an

opportunity to consider Appellant’s current complaint. Thus, it has not been

preserved for review.

       Pursuant to the doctrine of judicial estoppel, “a party to an action is

estopped from assuming a position inconsistent with his or her assertion in a

previous action, if his or her contention was successfully maintained.”

Newman Dev. Grp. of Pottstown, LLC v. Genuardi’s Family Mkt., Inc.,

98     A.3d    645   (Pa.Super.   2014)     (citations   omitted);   see    also

Commonwealth v. Lam, 684 A.2d 153, 164-65 (Pa.Super. 1996) (finding

judicial estoppel inapplicable, since the Commonwealth’s position was

consistent). A contention has been successfully maintained if the decision-

maker has been persuaded by the previously made assertions.                 See

Thompson v. Anderson, 632 A.3d 1349 (Pa.Super. 1993) (plaintiff

estopped from claiming defendant’s conduct was negligent after persuading

the trier-of-fact in an earlier proceeding that same conduct was intentional);

Trowbridge v. Scranton Artificial Limb Co., 747 A.2d 862 (Pa. 2000)

(appellant estopped from pursuing claim under the Pennsylvania Human

Relations Act after successfully applying for social security disability benefits

establishing that her disability rendered her unable to work); In re

Adoption of S.A.J., 838 A.2d 616 (Pa. 2003) (father estopped from

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claiming paternity of child after previous court accepted his denial of

paternity and excused him from child support).

      Here, Appellant asserted at trial that he should not be convicted of

SAM because it had not been charged.       N.T. Trial, 7/22/14, at 22.   After

arguing that the evidence did not support convictions for possession with

intent to deliver or possession, Appellant contended that the court should

acquit him of all charges. Id. at 23. However, the court denied Appellant’s

motion, and convicted him of possession.         Id. at 24.     Nonetheless,

Appellant’s position regarding SAM was successfully maintained since he was

not convicted of that offense.

      Having concluded that Appellant met the structural criteria for

imposing judicial estoppel, we must determine whether his actions were an

abuse of the judicial process resulting in an affront to the integrity of the

courts. See In re Adoption of S.A.J., supra at 623 (citation omitted). As

discussed further below, Appellant mistakenly believed he could not be

convicted of SAM because he was not charged with that offense. Appellant’s

recognition of this mistaken belief is apparent from his position on appeal.

The trial court also acknowledged this mistake, and requested that the

judgment of sentence be vacated and the matter remanded for entry of a

guilty plea for SAM. Therefore, we find Appellant did not abuse the judicial

process resulting in an affront to the integrity of the court by taking a

contrary position to his argument below.

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      Furthermore, we find this issue has not been waived. The trial court

had sufficient notice that the lesser-included SAM charge was a possible

alternative to a conviction of possession.          For example, during the

sentencing   hearing   the   following   exchange    between   the   court   and

Appellant’s counsel occurred:

      THE COURT: Why can’t he be guilty of [possession]?

      APPELLANT’S COUNSEL: Because Commonwealth v. Gordon
      [897 A.2d 504 (Pa.Super. 2006)] . . . states he can only be
      found guilty on the most specific offense that they’re actually
      guilty of. So the most specific offense here being the small
      amount of marijuana, subsection 31, which states possession of
      a small amount of marijuana is below the 2 [sic] grams. The
      defendant here, has 6 grams so –

      THE COURT: That doesn’t eliminate the Court’s discretion to find
      that lesser proved offense. Isn’t that what we have here?

      COMMONWEALTH: You’re not wrong.

N.T. Trial, 11/7/14, at 3-4. As the trial court was aware it had discretion to

convict Appellant of the lesser-included SAM charge at the time of

sentencing, and Appellant otherwise preserved this issue in his post-trial

filings, we find this issue is properly before us now.

      Turning to the merits of this appeal, we begin by observing that the

issue in this case is nearly identical to the issue facing this Court in

Commonwealth v. Tisdale, 100 A.3d 216 (Pa.Super. 2014).                We find

Tisdale dispositive. In Tisdale, the defendant appealed from a judgment of

sentence following his conviction for possession. The sole issue on appeal



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was whether he was improperly convicted of possession, and instead should

have been convicted of SAM.    This court observed that Tisdale had been

convicted of PWID before a municipal court. Id. at 218. He appealed and

proceeded to a trial de novo where he faced a single count of PWID. Id.

     The trial court acquitted Tisdale of PWID, but found him guilty of

possession. Id. Tisdale objected based on Gordon, supra, contending that

since the stipulated amount of drugs involved was less than 30 grams of

marijuana, the court was obligated to find him guilty of SAM. Id. The trial

court rejected this argument on the basis that Tisdale was never charged

with SAM, and therefore Gordon was inapplicable. Id.

     On appeal, this Court acknowledged the “specific over general” rule as

first applied in Commonwealth v. Brown, 29 A.2d 793 (Pa. 1943).           We

observed, “It is the policy of the law not to permit prosecutions under the

general provisions of the penal code when there are applicable special

provisions available.” Tisdale, 100 A.3d at 218 (citing Brown, 29 A.2d at

796-97).   Moreover, this policy “continues to prevent the Commonwealth

[from] pursuing general criminal charges against an individual whose

conduct was intended to be punished by a ‘specific penal provision’ that

constitutes the exclusive legal authority: for prosecution of the acts

charged.” Id. at 218-19 (citations omitted). Indeed,

     by including subsection (31) in section 780-113 of the proscribed
     conduct of the [Controlled Substance, Drug, Device, and
     Cosmetic Act], [the General Assembly] wisely set out the specific

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       crime of possession of a small amount of marijuana, and created
       a graduated system of penalties that imposes far heavier
       punishment for traffickers and lesser sanctions for casual users
       of marijuana.

Id. at 219 (citations omitted).           In light of the relevant case law and

legislative intent underpinning the applicable sections of the Controlled

Substance, Drug, Device, and Cosmetic Act, we found that “where both

subsections (16) and (31) apply, conviction properly rests on the specific

charge found at subsection (31), SAM.” Id.; see 35 Pa.C.S. § 780-101 et

seq.

       In Tisdale, as here, the defendant was not charged with SAM.4

However, we did not find it dispositive that Tisdale was charged with neither

possession nor SAM. Id. at 220. Rather, since Tisdale was formally charged

with PWID, he was “implicitly charged with the lesser included offenses of

[possession] and SAM.” Id. As a result, Tisdale could be convicted of either

of the lesser offenses, “subject to any other applicable principles of law and

evidence.” Id. The evidence stipulated at trial in Tisdale proved that the

total amount of marijuana involved was 8.64 grams; consequently we found

Tisdale should have been convicted of SAM. Id. at 220-21.

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4
   In Tisdale, unlike here, the defendant was also not charged with
possession, of which he was ultimately convicted prior to his appeal. We
find this distinction irrelevant, as both possession and SAM are lesser-
included offenses of PWID.




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       In the instant case, Appellant was charged with PWID and possession.

The trial court acquitted Appellant of PWID and found him guilty of

possession, despite a stipulation by the parties that Appellant was found in

possession of only six grams of marijuana.             Pursuant to Tisdale, supra,

Appellant was implicitly charged with SAM when he faced a charge for PWID.

In accordance with the stipulated amount of marijuana at issue, he could

only   properly    have    been    convicted     of   SAM   under   subsection   (31),

notwithstanding subsection (16). See 35 Pa. C.S. § 780-113(a)(31).

       Relying on 42 Pa.C.S. § 9303, the Commonwealth asserts that “where

two statutes define identical conduct, deciding which to apply is a matter of

prosecutorial discretion.”5 Commonwealth’s brief at 7-8.                We find the

Commonwealth’s argument unavailing, as 42 Pa.C.S. § 9303 became

effective in 2003, and Tisdale was decided in 2014. As such we are bound

by our holding in Tisdale, that where both subsections (16) and (31) apply,

conviction properly rests on subsection (31).

       Based on the aforementioned reasons, we vacate the judgment of

sentence for knowing and intentional possession of marijuana and remand to
____________________________________________


5
  The rules of Judicial Procedure read, “Notwithstanding the provisions of 1
Pa.C.S. § 1933 (relating to particular controls over general) or any other
statute to the contrary, where the same conduct of a defendant violates
more than one criminal statute, the defendant may be prosecuted under all
available statutory criminal provisions without regard to the generality or
specificity of the statutes.” 42 Pa.C.S. § 9303.




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the trial court for entry of a guilty verdict on the charge of possession of a

small amount of marijuana and for imposition of a new sentence.6

       Judgment of sentence vacated, matter remanded for action consistent

with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2016




____________________________________________


6
  The trial court agreed that it erred in failing to convict Appellant of SAM
and requested that this matter be remanded for the entry of a guilty verdict
of SAM.



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