J-S35011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RASHUN MAURICE AUSTION                    :
                                           :
                    Appellant              :   No. 1167 EDA 2018

                    Appeal from the Order April 9, 2018
  In the Court of Common Pleas of Pike County Criminal Division at No(s):
                        CP-52-CR-0000297-2015,
                        CP-52-CR-0000659-2016


BEFORE:    OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 13, 2020

      Appellant, Rashun Maurice Austion, appeals from the order entered on

April 9, 2018. On appeal, Appellant claims that the trial court erred in denying

his motion filed pursuant to Pa.R.Crim.P. 587(B), which asserted double

jeopardy as a bar to reprosecution of narcotics charges.           Upon careful

consideration, we affirm.

      We briefly discuss the facts of this case, as set forth in the affidavit of

probable cause, as follows. On May 8, 2015, police observed Appellant driving

a rental car without activated headlights at approximately 2:00 a.m. in Greene

Township, Pike County, Pennsylvania.      Police initiated a traffic stop of the

vehicle. Appellant was driving with a female passenger, later identified as

Aleisha Robinson. Police asked both occupants where they were going and

they replied that they were traveling to a book convention in Pittsburgh,


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S35011-19



Pennsylvania. Police detected the odor of marijuana and asked Appellant and

Robinson about it. Robinson appeared nervous and her hands were visibly

shaking. She admitted to police that she smoked marijuana in the vehicle

earlier. When police asked Appellant the identity of the individual who rented

the vehicle, Appellant responded that it was his cousin. However, without

supporting rental documentation and upon detecting the odor of marijuana,

police conducted a search of the vehicle. During a search of Robinson’s purse,

police recovered two Black & Mild cigars, two Palma cigars, one Blunt Ville

cigar, one “Blunteffects” concentrated air freshener, and one glass pipe with

suspected burnt marijuana residue. From the trunk, police recovered a black

backpack containing three large plastic bags with suspected narcotics.        In

total, police recovered approximately 8,400 individual glassine envelopes that

contained a substance later confirmed to be heroin. The recovered contraband

had an approximate street value of $85,000.00.

     The trial court summarized the procedural history of this case as follows:

     At docket no. 297-2015, the Commonwealth charged [Appellant]
     with one (1) count each of possession with intent to manufacture
     or deliver a controlled substance [(PWID)], 35 P.S.
     § 780-113(a)(30), possession of a controlled substance, 35 P.S.
     §780-113(a)(16), possession of drug paraphernalia, 35 P.S.
     § 780-113(a)(32), and period for requiring lighted lamps, 75
     Pa.C.S.A. § 4302(a)(1).

     The case at docket no. 297-2015 proceeded to a jury trial during
     the July 2016 criminal term of court. On July 20, 2016, the
     empaneled jury returned a verdict of not guilty on the possession
     of drug paraphernalia charge and was deadlocked on the [PWID]
     and possession of a controlled substance charges. On July 20,
     2016, after [the] entry of the jury’s verdict, [the trial court] found
     [Appellant] guilty of the [period for requiring lighted lamps]

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       summary offense. [The trial court] declared a mistrial [as to PWID
       and simple possession] due to [] jury [] deadlock[].           The
       Commonwealth [gave] notice of its intention to retry [Appellant]
       on the deadlocked charges.

       At docket no. 659-2016, on November 15, 2016, the
       Commonwealth filed an additional criminal charge against
       [Appellant] of criminal conspiracy to commit [PWID], 18 Pa.C.S.A.
       § 903(a)(1), 35 P.S. 780-113(a)(30). The cases at docket nos.
       297-2015 and 659-2016 [were] consolidated for trial purposes.
       On September 5, 2017, [Appellant] filed [a] motion to dismiss
       pursuant to Pa.R.Crim.P. 587(B) at both dockets. A hearing on
       [Appellant’s] motion was held on February 2, 2018.

Trial Court Opinion, 3/23/2018, at 1-2 (superfluous capitalization and

parentheticals omitted).

       The trial court denied relief on Appellant’s dismissal motion by order and

opinion entered on March 23, 2018. On April 9, 2018, upon Appellant’s motion

to clarify the March 23, 2018 order, the trial court entered an order finding

that Appellant’s motion for dismissal was not frivolous and certified the order

as an immediately appealable collateral order under Pa.R.A.P. 313(b). This

timely appeal resulted.1

       Appellant raises the following issue for our review:


____________________________________________


1    On April 19, 2018, Appellant filed a single notice of appeal listing both
docket numbers. We note that on June 1, 2018, our Supreme Court
prospectively “required that when a single order resolves issues arising out on
more than one lower court docket, separate notices of appeal must be filed.”
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018). However,
because Appellant filed his notice of appeal before Walker was decided, it is
inapplicable herein. On April 20, 2018, the trial court ordered Appellant to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant complied timely on May 8, 2018. On June 26, 2018, the
trial court issued another opinion pursuant to Pa.R.A.P. 1925(a).

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      Whether the trial court abused its discretion or erred as a matter
      of law in denying Appellant’s motion to dismiss pursuant to
      Pa.R.Crim.P. 587(B) by violating Appellant’s constitutional right
      against double jeopardy which is guaranteed both by the 14th and
      5th Amendments to the federal constitution and by Article I, § 10
      of Pennsylvania’s constitution[?]

Appellant’s Brief at 5 (cleaned up).

      Appellant argues, as a matter of law, that his previous acquittal for

possession of drug paraphernalia bars reprosecution for PWID and simple

possession of a controlled substance. Id. at 8-13. Appellant claims that “[t]he

drug paraphernalia in this case was glassine packets which contained the

alleged controlled substance.” Id. at 8. Appellant posits that “[i]n order to

convict [him] of the two [deadlocked narcotics] possession charges[, PWID

and possession of a controlled substance, as well as a new charge for

conspiracy,] a new jury would have to find that [] Appellant possessed the

glassine packets containing the alleged controlled substance.” Id. Appellant

argues that such a “finding would contradict the first jury’s finding which

acquitted [] Appellant of [p]ossession of [d]rug [p]araphernalia and would

thereby violate Appellant’s constitutional right against double jeopardy.” Id.

      Accordingly, Appellant posits:

      It would be illogical and impossible for a second jury to find that
      [] Appellant possessed the controlled substances without also
      finding that [] Appellant possessed drug paraphernalia [for which
      he was acquitted]. Such a conclusion is analogous to the following
      scenario. One [j]ury makes a determination that a person did not
      possess a glass containing water but a second [j]ury determines
      that the same person possessed the water but not the glass
      containing the water. Clearly, in this scenario, if you possess one
      you must possess both. Should a second jury find that []
      Appellant possessed a controlled substance [stored inside] the


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J-S35011-19


      glassine packets it would contradict and overrule the factual
      findings of the first jury that already determined that [] Appellant
      was not in possession of drug paraphernalia which contained the
      controlled substance.

Id. at 12-13.

      Our standard of review is as follows:

      An appeal grounded in double jeopardy raises a question of
      constitutional law. This Court's scope of review in making a
      determination on a question of law is, as always, plenary.

      As with all questions of law, the appellate standard of review is de
      novo. To the extent that the factual findings of the trial court
      impact its double jeopardy ruling, we apply a more deferential
      standard of review to those findings:

         Where issues of credibility and weight of the evidence are
         concerned, it is not the function of the appellate court to
         substitute its judgment based on a cold record for that of
         the trial court. The weight to be accorded conflicting
         evidence is exclusively for the fact finder, whose findings
         will not be disturbed on appeal if they are supported by the
         record.

      The prohibition against double jeopardy was designed to protect
      individuals from being tried or punished more than once for the
      same allegation or offense. The Fifth Amendment of the United
      States Constitution provides, in relevant part, that no person shall
      be subject for the same offence to be twice put in jeopardy of life
      or limb. Likewise, Article I, § 10 of the Pennsylvania Constitution
      provides that no person shall, for the same offense, be twice put
      in jeopardy of life or limb.

Commonwealth v. Miller, 198 A.3d 1187, 1191 (Pa. Super. 2018) (internal

citations, quotations, and brackets omitted).

      This Court previously determined:

      Retrial after a hung jury normally does not violate the Double
      Jeopardy Clause.




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       The doctrine of collateral estoppel is a part of the Fifth
       Amendment's guarantee against double jeopardy, which was
       made applicable to the states through the Fourteenth
       Amendment. The phrase “collateral estoppel,” also known as
       “issue preclusion,” simply means that when an issue of law,
       evidentiary fact, or ultimate fact has been determined by a valid
       and final judgment, that issue cannot be litigated again between
       the same parties in any future lawsuit. Collateral estoppel does
       not automatically bar a subsequent prosecution, but rather, it bars
       redetermination in a second prosecution of those issues
       necessarily determined between the parties in a first proceeding
       that has become a final judgment.

       Traditionally, Pennsylvania courts have applied the collateral
       estoppel doctrine only if the following threshold requirements are
       met: 1) the issues in the two actions are sufficiently similar and
       sufficiently material to justify invoking the doctrine; 2) the issue
       was actually litigated in the first action; and 3) a final judgment
       on the specific issue in question was issued in the first action. An
       issue is actually litigated when it is properly raised, submitted for
       determination, and then actually determined. For collateral
       estoppel purposes, a final judgment includes any prior
       adjudication of an issue in another action that is sufficiently firm
       to be accorded conclusive effect.

Commonwealth v. Brockington-Winchester, 205 A.3d 1279, 1283–1284

(Pa. Super. 2019).2

       Our Supreme Court’s decision in Commonwealth v. States, 938 A.3d

1016 (Pa. 2007), relied upon by both parties and the trial court, provides

additional guidance.      In that case, States and two other men were involved

in a single car accident.       States was the sole survivor of the crash.       The

Commonwealth         charged     him    with   two   counts   each   of   involuntary


____________________________________________


2 In this case, the threshold requirements for application of collateral estoppel
appear to be met. The issues are sufficiently similar, possession was litigated
in the first trial, and a final judgment was entered.

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manslaughter, accidents involving death or personal injury while not properly

licensed, homicide by vehicle, and homicide by vehicle while driving under the

influence of alcohol. The parties agreed that the trial court judge would hear

the accidents involving death while not properly licensed charge, after a jury

decided the other criminal charges. The jury deadlocked on all the charges

before it.   Thereafter, the trial judge acquitted States of the accidents

involving death charge because the trial court explicitly stated that it was not

convinced beyond a reasonable doubt that States was the driver of the vehicle.

The States Court ultimately determined that the principles of collateral

estoppel operated to prevent the Commonwealth from proceeding with retrial

on the charges upon which the jury deadlocked based upon double jeopardy.

The States Court examined the three-part test, as set forth above, to

determine whether collateral estoppel applied to limit further litigation.     It

stated:

      In the criminal law arena, the difficulty in applying collateral
      estoppel typically lies in deciding whether or to what extent an
      acquittal can be interpreted in a manner that affects future
      proceedings, that is, whether it “reflects a definitive finding
      respecting a material element of the prosecution's subsequent
      case.” Commonwealth v. Buffington, 828 A.2d 1024, 1032 (Pa.
      2003). We ask whether the fact-finder, in rendering an acquittal
      in a prior proceeding, “could have grounded its verdict upon an
      issue other than that which the defendant seeks to foreclose from
      consideration.” [Commonwealth v.] Smith, 540 A.2d[, 246,] at
      251 [(Pa. 1988)]. If the verdict must have been based on
      resolution of an issue in a manner favorable to the defendant with
      respect to a remaining charge, the Commonwealth is precluded
      from attempting to relitigate that issue in an effort to resolve it in
      a contrary way. See Commonwealth v. Zimmerman, 445 A.2d
      92, 96 (Pa. 1981) (acquittal on simple assault precluded retrial on

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     [deadlocked] murder charges because simple assault was a
     constituent element of all grades of homicide in the case);
     Commonwealth v. Wallace, 602 A.2d 345, 349–350 (Pa. Super.
     1992) (Commonwealth's concession that the jury's acquittal
     meant appellant did not possess a gun collaterally estopped
     Commonwealth from any subsequent prosecution based on
     appellant's possession of a gun); Commonwealth v. Klinger,
     398 A.2d 1036, 1041 (Pa. Super. 1979) (appellant's acquittal on
     murder precluded the Commonwealth from bringing a subsequent
     perjury prosecution based on appellant's trial testimony that he
     did not kill the victim), aff'd. sub nom. Commonwealth v. Hude,
     425 A.2d 313 (Pa. 1980). Conversely, where an acquittal cannot
     be definitively interpreted as resolving an issue in favor of the
     defendant with respect to a remaining charge, the Commonwealth
     is free to commence with trial as it wishes. See [Commonwealth
     v.] Buffington, 828 A.2d [1024, ]at 1033 [(Pa. 2003)](acquittal
     of rape and IDSI did not establish that Commonwealth failed to
     prove an essential element of sexual assault); Smith, 540 A.2d
     at 253–254 (acquittal of gun possession charge did not collaterally
     estop Commonwealth from proceeding on charges of murder and
     possession of an instrument of crime, as acquittal could have been
     based on any number of reasons); Commonwealth v. Harris,
     582 A.2d 1319, 1323 (Pa. Super. 1990) (robbery acquittal did not
     preclude retrial on [deadlocked] charge of aggravated assault),
     appeal denied, 597 A.2d 1151 (Pa. 1991).

Commonwealth v. States, 938 A.2d 1016, 1021–1022 (Pa. 2007).

     The States Court ultimately concluded:

     There existed a final order definitively establishing that States
     was not the driver of the car and a scheduled retrial at which
     the Commonwealth planned to offer evidence to establish that
     States was the driver of the car. The fact that a retrial required
     the Commonwealth to present evidence on this issue, to urge a
     second jury to reach a result contrary to the result previously
     reached by another fact finder, […] converts it into a classic
     collateral estoppel matter.

Id. at 1026–1027 (emphasis in original).      Accordingly, the States Court

barred the Commonwealth from retrying States on the basis of collateral

estoppel and double jeopardy.


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      We further note that States examined our Supreme Court’s prior

decision in Smith. The Smith decision provides additional guidance regarding

whether an acquittal may or may not be definitively interpreted as resolving

an issue in favor of the defendant with respect to unresolved or newly raised

charges. Smith was charged originally with first-degree murder and

possessing an instrument of crime, as well as firearms not to be carried

without a license and carrying a firearm on public streets in Philadelphia. After

a first trial, Smith was acquitted of the firearms violations, but the jury

deadlocked on murder and possessing an instrument of crime.                  The

Commonwealth issued notice of its intent to reprosecute and Smith appealed,

raising double jeopardy and collateral estoppel.          Our Supreme Court

determined that Smith’s acquittals on the charges of firearms violations did

not bar the Commonwealth’s subsequent prosecution for murder and

possessing an instrument of crime.       Our Supreme Court noted that the

charged firearms offenses prohibited a defendant from carrying a firearm

without a license or on public streets in Philadelphia, but the Commonwealth’s

failure to prove those crimes did not necessarily determine whether Appellant

was in physical possession of a firearm. See Smith, 540 A.2d at 253-254.

Stated differently, the Smith Court found that the Commonwealth failed to

prove that Smith lacked a firearm license or was on public property when

arrested.   The jury, however, did not make a definitive ruling regarding

possession of the firearm used in the shooting. Thus, the Commonwealth was


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permitted to reprosecute Smith for murder and possessing an instrument of

crime.

       In determining the applicability of the principle of collateral estoppel,

the Smith Court explained that a court must

       examine the record of a prior proceeding, taking into account the
       pleadings, evidence, charge, and other relevant matter, and
       conclude whether a rational jury could have grounded its verdict
       upon an issue other than that which the defendant seeks to
       foreclose from consideration. In determining whether a rational
       jury could have grounded its verdict upon an issue other than that
       which is sought to be foreclosed [our Supreme Court has]
       cautioned that the inquiry must be set in a practical frame and
       viewed with any eye to all the circumstances.

Smith, 540 A.2d at 251 (internal citations and quotations omitted). Collateral

estoppel “is a principle to be applied with realism and rationality, not with the

hypertechnical and archaic approach of a 19th century pleading book.” 3 Id.

(internal citations and quotations omitted).

____________________________________________


3  We briefly respond to the dissent’s suggestion that in applying “realism and
rationality” to this case one cannot ignore “the plain and obvious fact that it
would have been impossible for Appellant to have possessed the heroin inside
the glassine packets if he did not possess the glassine packets.” Dissenting
Memorandum at 6. In contrast to the dissent’s view, we read the phrase
“realism and rationality” (when used as a legal test to gage the preclusive
scope of a prior acquittal) with reference to the facts of the Smith case, from
which the phrase emerged as set forth at length above. The principal that
emerges from Smith is that, in the absence of a definitive ruling negating
possession of a firearm, the concept of collateral estoppel did not preclude a
subsequent prosecution for murder and possessing an instrument of crime.
Whatever may be said about the logical relationship between the contents and
their container in this matter, there is no legal requirement to prove
possession of a container in order to prove unlawful possession of its contents.
In other words, as in Smith, where acquittal of certain firearms charges did



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       In this case, the trial court denied Appellant relief on his double jeopardy

claim for the following reasons:

       Here, [] Appellant, relying on the principles in States, supra,
       presents an argument implicating double jeopardy, asserting that
       the Commonwealth can neither try him for the first time [for]
       [c]riminal [c]onspiracy [], nor re-try him on charges of
       [possession of a controlled substance] and [PWID], because the
       previous jury acquitted him of the charge of [p]ossession of [d]rug
       [p]araphernalia []. In other words, Appellant claims he cannot be
       tried for possessing the substance contained within the
       paraphernalia because he has already been acquitted of
       possessing that same paraphernalia. [The trial court] disagreed
       with Appellant’s position.

       In States, the fact finder explicitly determined that the
       Commonwealth failed to prove [States] was the driver of the
       vehicle in question, directly implicating a necessary element of the
       charge of [h]omicide by [v]ehicle. Since [subsequent prosecution
       of States could only succeed if the Commonwealth also
       established that States] was the driver, collateral estoppel
       precluded re-trial.

       However, the facts of the present matter differ markedly from
       those in States. Here, [] Appellant was pulled over for a motor
       vehicle code violation, a search ensued, and law enforcement
       discovered large quantities of heroin and various items of
____________________________________________


not preclude subsequent prosecution for possessing an instrument of crime
and murder, an acquittal on the paraphernalia charges in this case is not a
legal impediment to prosecution for unlawful possession of the contraband.
States confirms this understanding of the operation of collateral estoppel in
the context of double jeopardy. This decision is unlike States wherein the
court definitively determined that States was not driving the car at the time
of the accident to bar reprosecution of involuntary manslaughter, homicide by
vehicle and driving under the influence of alcohol. Here, as discussed, the
jury’s acquittal of possession of paraphernalia cannot be read as a definitive
finding, especially in light of deadlocking on the narcotics charges.
Implementing realism and rationality to this case begs the converse question
Appellant and the dissent pose -- if the jury definitively determined that
Appellant did not possess the paraphernalia, then why did it not also
definitively find that Appellant did not possess the narcotics found inside those
glassine packets?

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J-S35011-19


       paraphernalia, including glassine packets, packaging materials, a
       glass pipe, and cigars. The jury in this matter found that []
       Appellant did not possess [drug paraphernalia]. This finding was
       not specific in concluding that [] Appellant did not possess the
       heroin contained within the glassine packets. Further, unlike in
       States, possession of the glassine packets here is not an element
       of the charges to be re-tried.

       Based on this analysis, [the trial court] found that Appellant’s
       acquittal of [possession of drug paraphernalia] did not represent
       an ultimate fact (with regard to the charges to be re-tried)
       determined by a valid and final judgment, that the doctrine of
       double jeopardy did not preclude re-trial of the charges noted
       herein, and [] denied his [m]otion [to dismiss].

Trial Court Opinion, 6/26/2018, at 4-5.

       Further, in an opinion accompanying the order denying Appellant’s

motion to dismiss, the trial court concluded:

       Our appellate courts have also stated, with respect to claims of
       double jeopardy, that inconsistent verdicts are permissible in our
       Commonwealth. There may have been various reasons why the
       jury concluded that [Appellant] did not possess the items of
       paraphernalia herein, including the glassine packets, while
       deadlocking on the possession of controlled substance charges.
       […] The paraphernalia charge in this case also involved items
       unrelated to the heroin, including the pipe, cigars and packaging
       material.

Trial Court Order and Opinion, 3/23/2018, at *5 (unpaginated) (internal

citations omitted).

       For this latter proposition, the trial court relied upon States, as well as

this Court’s decision in Commonwealth v. DeLong, 879 A.2d 234 (Pa.

Super. 2005). In DeLong,4 a jury convicted DeLong of PWID and delivery of

____________________________________________


4 Appellant does not challenge the trial court’s reliance upon DeLong on
appeal.

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narcotics, but acquitted him of simple possession. The convictions were set

aside, however, due to jury misconduct. The Commonwealth sought to re-try

DeLong for PWID and delivery. DeLong moved to dismiss, arguing that his

acquittal for the lesser-included offense of simple possession barred a second

prosecution of the greater inclusive offenses of PWID and delivery, even if the

jury convicted him of those offenses at the first trial.   The DeLong Court

rejected this argument, finding:

      Consistency in verdicts in criminal cases is not necessary. When
      an acquittal on one count in an indictment is inconsistent with a
      conviction on a second count, the court looks upon the acquittal
      as no more than the jury's assumption of a power which they had
      no right to exercise, but to which they were disposed through
      lenity. The rule that inconsistent verdicts do not constitute
      reversible error applies even where the acquitted offense is a
      lesser included offense of the charge for which a defendant is
      found guilty.

      Read in this light, the jury's decision to acquit [DeLong] of the
      simple possession charge but convict on PWID and [d]elivery
      charges is understood as an act of lenity in a case where the
      evidence focused, in any event, predominantly on [DeLong’s] act
      of delivery during a controlled buy of methamphetamine. The
      inconsistent verdict, therefore, does not imply error, mistake, or
      inability to agree as to the two greater inclusive offenses.

      Nor is there, therefore, a double jeopardy [or] estoppel [] problem
      with a second prosecution of the greater inclusive offenses in this
      case. Though conceptual and practical differences exist with each
      principle, they share the purpose of barring retrial for the same
      offense.

Commonwealth v. DeLong, 879 A.2d 234 at 238 (case citation omitted).

      Finally, our Supreme Court has stated:

      Federal and Pennsylvania courts alike have long recognized that
      jury acquittals may not be interpreted as specific factual findings
      with regard to the evidence, as an acquittal does not definitively

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        establish that the jury was not convinced of a defendant's guilt.
        Rather, it has been the understanding of federal courts as well as
        the courts of this Commonwealth that an acquittal may merely
        show lenity on the jury's behalf, or that the verdict may have been
        the result of compromise, or of a mistake on the part of the jury.
        Accordingly, the United States Supreme Court has instructed that
        courts may not make factual findings regarding jury acquittals[.]

Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014) (citations

omitted).

        Taking all of the foregoing together, we agree with the trial court’s

determinations.      First, we cannot interpret Appellant’s acquittal for drug

paraphernalia as a specific factual finding by the jury. Appellant interprets

the jury’s acquittal of his paraphernalia charge as a finding that he was not in

possession of paraphernalia.          However, the jury may have grounded its

decision5 upon a finding that the Commonwealth failed to prove that the

glassine packets were items of paraphernalia as statutorily defined.6

____________________________________________


5 We note that we do not have a full record of the proceedings. The certified
record only contains a transcript of Appellant’s testimony from trial and a
transcript of the hearing on Appellant’s motion to dismiss. There are no
additional trial transcripts for us to review. Thus, we were not able to discern
what evidence was presented at Appellant’s first trial or what instructions
and/or legal definitions the trial court provided to the jury prior to its
deliberations.

6   Possession of paraphernalia is defined as:

        The use of, or possession with intent to use, drug paraphernalia
        for the purpose of planting, propagating, cultivating, growing,
        harvesting, manufacturing, compounding, converting, producing,
        processing, preparing, testing, analyzing, packing, repacking,
        storing, containing, concealing, injecting, ingesting, inhaling or



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Moreover, the acquittal may merely show lenity on the jury's behalf, or the

result of compromise, or of a mistake on the part of the jury.7    Additionally,


____________________________________________


       otherwise introducing into the human body a controlled substance
       in violation of this act.

35 P.S. § 780-113(a)(32).

7    We note the following. The Commonwealth filed a bill of criminal
information against Appellant on June 29, 2015 alleging, at Count IV, that
Appellant

       use[d] or possess[ed] with intent to use, drug paraphernalia, to
       wit, glassine packets, packaging material, a glass pipe and
       cigars, items used for the purpose of planting, propagating,
       cultivating, growing, harvesting, manufacturing, compounding,
       converting, producing, processing, preparing, testing, analyzing,
       packing, repacking, storing, containing, concealing, injecting,
       ingesting, inhaling, or otherwise introducing into the human body,
       a controlled substance.

Bill of Criminal Information, 6/29/2015, at *2 (emphasis supplied). The
Commonwealth also advised Appellant that it intended to try him and
Robinson together in a joint trial. However, as Appellant notes, “[a]fter jury
selection but before opening statements began, [] Robinson[,] Appellant’s
alleged co-defendant, pleaded guilty to possession of marijuana and
paraphernalia which was found in her purse” and “the Commonwealth
dismissed Count II of the [i]nformation which charged Appellant with
[c]onspiracy to possess heroin with intent to deliver.” Appellant’s Brief at 11.
The Commonwealth, however, did not amend the criminal information filed
against Appellant with regard to the paraphernalia recovered. As such, the
Commonwealth, via Count IV of the information, continued to charge
Appellant with possession of all the paraphernalia police recovered, i.e.,
glassine packets, packaging material, a glass pipe and cigars. The verdict slip,
which is contained in the certified record, listed individually each of the
recovered items of paraphernalia (i.e., glassine packets, packaging material,
a glass pipe and cigars). The verdict slip asked the jury that, if it found
Appellant guilty of possessing paraphernalia, to identify which paraphernalia
items it found Appellant to have possessed. When the jury found Appellant
not guilty of possessing paraphernalia, it obviously did not identify items of



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here, the jury did not definitively determine whether Appellant was in

possession of the recovered heroin.            In a subsequent prosecution, the

Commonwealth simply does not have to prove that Appellant was in

possession of paraphernalia in order to prove that Appellant was in simple

possession of heroin or that he possessed the drugs with the intent to deliver

them.8 Thus, collateral estoppel does not apply. Based upon our standard of

review and the record before us, we discern no abuse of discretion or trial

court error in denying Appellant relief on his double jeopardy claim.




____________________________________________


paraphernalia on the verdict slip. Based on the foregoing, we conclude that
the Commonwealth’s single paraphernalia charge, despite the recovery of
multiple items, was carelessly confusing, as some of the recovered items are
used typically to facilitate personal consumption of marijuana (i.e., pipe and
cigars) while the glassine packets at issue are used specifically for packaging
and storing narcotics. As such, we conclude the jury’s acquittal on the
paraphernalia charge certainly could have been the result of lenity,
compromise, or mistake. A rational, but confused, jury could have grounded
its verdict by focusing on the lack of evidence regarding the other items seized
from Robinson’s purse – the cigars and glass pipe – to conclude that Appellant
was not in possession of any paraphernalia.

8   In a subsequent prosecution for simple possession and PWID, the
Commonwealth could seek to prove the crimes without evidence of glassine
packets and/or packaging materials. The intent to deliver may be inferred
from the possession of a large quantity of a controlled substance, the
defendant’s behavior in the presence of police, and sums of cash found in
possession of the defendant. See Commonwealth v. Roberts, 133 A.3d
759, 768 (Pa. Super. 2016). Expert opinion testimony is also admissible
concerning whether the facts surrounding the possession of controlled
substances are consistent with an intent to deliver. Id.

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J-S35011-19


     Order affirmed.

     Judge Stabile joins the memorandum.

     Judge Strassburger files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/20




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