J-S21034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER TISDALE

                            Appellant                      No. 2080 EDA 2013


             Appeal from the Judgment of Sentence March 4, 2013
             In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): No. CP-51-CR-0015256-2012


BEFORE: SHOGAN, J., ALLEN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                       FILED JULY 29, 2014

        Christopher Tisdale appeals from the judgment of sentence imposed

on him on March 4, 2013, following his conviction on the charge of

possession of a controlled substance           marijuana (possession) .1 Following a

non-jury trial, Tisdale was acquitted of the charge of possession with intent

to deliver (PWID).2

improperly convicted of possession and should have been convicted of

possession of a small amount of marijuana (SAM).3 After a thorough review


____________________________________________


1
    35 P.S. § 780-113(a)(16).
2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(31).
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                     4
                         the certified record, and relevant law, we vacate the

judgment of sentence for possession of marijuana and remand to 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.5

       We adopt the facts of this matter as related by the trial court in its

Pa.R.A.P. 1925(a) Opinion.

       On October 18, 2012, at approximately 12:15 p.m., Officer
       Robinson and his partner were in an unmarked vehicle
       conducting a surveillance for the sale of illegal narcotics near the
       600 block of South 56th Street in the City of Philadelphia. The
       officer observed Tisdale and another male, later identified as
       Raheem, standing on the southwest corner of 56th Street and
       Walton Street as an unknown black female approached the
       corner of 56th Street and Catherine Street. Tisdale and Raheem
       began walking toward the female, who was observed to have
       reached into her pocket to pull out an undetermined amount of
       U.S. currency. The female began to walk toward the two males
       whereupon a marked police vehicle came traveling westbound on
       Catherine Street. The female immediately put the money back
____________________________________________


4
  On December 17, 2013, the Commonwealth obtained an extension of time
to February 13, 2014 to file its brief. The order stated no further extension
would be granted. The Commonwealth did not file its brief until June 16,


5
  It appears that at the trial de novo, Tisdale was also facing a charge of
conspiracy to commit PWID. However, during the waiver of jury colloquy,
the only charge mentioned is PWID.          At the end of the trial, the
Commonwealth argued the evidence supported a guilty verdict on
conspiracy. However, no verdict was announced on that charge. There are
no orders in the certified record indicating the disposition of that charge.
The docket indicates that Tisdale was found not guilty of conspiracy but that
the specific charge of conspiracy to commit PWID was nolle prossed. It is
obvious that Tisdale was not convicted of conspiracy, but we are unsure how
that charge was disposed of.



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     in her pocket and walked into a corner store. The two males
     turned around and began walking at a fast pace in the direction
     from which they had just come. The males continued to walk
     toward Walton Street, when police witnessed Raheem reach into
     his pocket and pull out a clear baggie containing several items
     believed to be marijuana.

     The two males continued onto Walton Street, at which point
     Raheem removed a clear baggie from his pants pocket and
     handed it to Tisdale. Tisdale placed the baggie inside of a white
     plastic bag that had already been positioned on the porch of
     5545 Walton Street. The two men then proceeded to walk down
     56th Street. Police then went to the porch and recovered twelve
     (12) yellow packets, each containing 0.72 grams of marijuana,
     from within the clear baggie that had been placed inside of the
     white plastic bag.     Police apprehended the two males and
     recovered $20 USD from Tisdale and $49 USD from Raheem.

Trial Court Opinion, 10/04/2013, at 2-3.

     Procedurally, we note that Tisdale was convicted of PWID and

conspiracy at a Municipal Court trial held on December 7, 2012.     At that

time, the Commonwealth withdrew the charge of possession of a controlled

substance.    Tisdale appealed and proceeded to a trial de novo before the

Honorable Linda Carpenter. At that time, the only possessory charge Tisdale

faced was a single count of possession with intent to deliver. Tisdale was

acquitted of the PWID charge, but was found guilty of possession. Tisdale

objected, claiming that under Commonwealth v. Gordon, 897 A.2d 504

(Pa. Super. 2006), because the stipulated amount of drugs involved was

under 30 grams of marijuana, the court was obligated to find Tisdale guilty

of SAM.     The trial court rejected that argument and opined that because

Tisdale was never charged with SAM, Gordon was inapplicable. This appeal

followed.


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       The instant case presents a unique combination of two principles of

law:   the   specific/general      rule   and    lesser   included    offenses.6   The

specific/general rule was first announced in Commonwealth v. Brown, 29



prosecutions under the general provisions of the penal code when there are

                                                Id. at 796-97. Further,

       [t]his same policy remains in force nearly sixty years later and
       continues to prevent the Commonwealth for pursuing general
       criminal charges against an individual whose conduct was

       constitutes the exclusive legal authority: for prosecution of the
       acts charged.

Commonwealth v. Leber, d/b/a Arctic Contractors, Inc., 802 A.2d

648, 650 (Pa. Super. 2002).

       This rule was applied in Gordon, where the defendant possessed 8.67

grams of marijuana. He was charged with both possession of a controlled

substance, subsection (16), and SAM, subsection (31).                 He was convicted

under the general offense found at subsection (16).                  Gordon stated, in

relevant part,

       [i]n our view, the General Assembly, by including subsection
       (31) in section 780-113 of the proscribed conduct of the Act,
       wisely set out the specific crime of possession of a small amount
       of marijuana, and created a graduated system of penalties that

____________________________________________


6
  These two rules are sometimes confused.          See Commonwealth v.
Karetny, Commonwealth v. Asbell, 880 A.2d 505 (Pa. 2005). Here, we
are not applying the rules together, but serially.



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     imposes far heavier punishment for traffickers and lesser
     sanctions for casual users of marijuana.
                                     ...
           As a result, the conviction under the general proscription
     contained in subsection (16) of section 780-113 of the Controlled
     Substance, Drug, Device and Cosmetic Act must be vacated, and
     the case remanded to the trial court for the entry of a verdict on
     the charge of possession of a small amount of marijuana as
     stated in subsection (31) of the Act.

Commonwealth v. Gordon, 897 A.2d at 509-10.

     The recognition of the legislative intent to provide for a graduated

system of penalties for possession of marijuana predates Gordon. In 1976,

a panel of our Court stated:

     Under the statutory scheme, possession of marijuana may be
     prosecuted under at least three sections. Possession of a large
     quantity of contraband is one factor which may lead to a
     conviction of possession with intent to deliver. See
     Commonwealth v. Santiago, 462 Pa. 228, 340 A.2d 440
     (1975); Commonwealth v. Hill, 236 Pa.Super. 572, 576, 346
     A.2d 314, 316 (1975)(Dissenting Opinion by HOFFMAN, J.). The
     offense is punishable by imprisonment up to 5 years and/or a
     fine of up to $15,000. If the jury believes that the accused
     merely possessed the marijuana and had no intent to deliver,
     the offense is a misdemeanor punishable by up to a year
     imprisonment and/or a fine of $5,000. If the jury finds that the
     accused possessed or distributed less than thirty grams of
     marijuana, the offense is a misdemeanor punishable by up to 30
     days' imprisonment and/or a fine of $500. As between section
     780-113(a)(30) and section 780-113(a)(16), the critical issue for
     the jury to decide is the question of intent. As between section
     780-113(a)(30) or section 780-113(a)(16) and section 780-
     113(a)(31), the issue to be determined is the quantity
     possessed.

Commonwealth v. Wilds, 362 A.2d 273, 277-78 (Pa. Super. 1976)

(footnotes omitted).




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       In light of the foregoing case law, it is apparent that where both

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

charge found at subsection (31), SAM.

       The application of Gordon

concern that Tisdale was not charged with violating subsection (16).       To

address this concern, we must look to the application of rules regarding

lesser included offenses.

       The trial court correctly noted that Tisdale was not charged with SAM.

However, at his trial de novo, he was also not charged with possession. The

only charge Tisdale faced was for allegedly violating PWID.7 Logically, if it

matters that Tisdale was not charged, de novo, with SAM, then it also

matters that he was not charged with possession. Yet, the trial court found


____________________________________________


7
  Because the instant matter was tried de novo, the specifics of the
municipal court trial and the charges Tisdale faced are currently irrelevant.
The effect of a trial de novo is that it supplants any prior decision in toto.

       Accordingly, because appellants have perfected their appeals to
       the Court of Common Pleas of Allegheny County, the cases have
                                                                    not
                          de novo. Id. at ftn. 3. (emphasis added); see
       also, Commonwealth v. Moore, 226 Pa.Super. 58, 312 A.2d 422,
       426 (1973) (trial de novo

       been heard before and as if no decision had been previously

       Dissenting and Concurring Opinion).

Commownealth v. Krut, 457 A.2d 114, 116 (Pa. Super. 1983).



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Tisdale guilty of possession. Therefore, distinguishing Gordon on the fact

that Tisdale was not formally charged with SAM is unavailing.

      The fact that Tisdale was not formally charged with either possession

or SAM is not dispositive, because both of those charges are lesser included

offenses to PWID.

      In the instant case, the offense charged clearly included the
      offense of mere possession. Every element of possession is
      included within the crime of possession with intent to deliver.
      The only element which distinguishes the latter from the former
      is the manufacture, delivery, or an intent to manufacture or
      deliver. Similarly, possession of a small quantity of
      marijuana for personal use would necessarily be included
      within the crime of possession with intent to deliver. The
      issue, therefore, is whether the evidence at trial would possibly
      support both a conviction of the lesser offense of possession of a
      small quantity for personal use and an acquittal of possession of
      marijuana with intent to deliver.

Commonwealth v. Wilds, 362 A.2d at 278-79 (emphasis added).

      Recognizing that both possession and SAM are lesser included offenses

to PWID, we examine how a defendant is charged with a lesser included

offense.

      This end has been frequently achieved by the Commonwealth in
      one of two ways, namely: (1) they have expressly put the
                                      lly charging him with the less


      uncharged, crime is a lesser included offense of the charged, but
      unproven, offense as a matter of law.

Commonwealth v. Gouse, 429 A.2d 1129, 1132 (Pa. Super. 1981)

(citation omitted).




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J-S21034-14



       Here, when Tisdale was formally charged with PWID only, he was

implicitly charged with the lesser included offenses of possession and SAM.

Because Tisdale was implicitly charged with the lesser included offenses, he

could be convicted of either of the lesser included offenses, subject to any

other applicable principles of law and evidence.

       Instantly, as demonstrated above, the general/specific principle

governs the application of possession and SAM. The evidence, as stipulated

at trial, was that the total amount of marijuana involved was 8.64 grams.8

See N.T., Trial, 3/4/2013, at 30-31. Pursuant to subsection (31), 30 grams

of marijuana or less shall be considered a small amount of marijuana.

Accordingly, because Tisdale was implicitly charged with both possession and

SAM, and the stipulated evidence clearly supports the specific SAM charge,

Tisdale should have been properly convicted of possession of a small amount

of marijuana, 35 P.S. § 780-113(a)(31). We see no reason to draw a

distinction between being formally charged with possession and SAM, as

happened in Gordon, or implicitly charged with those crimes, as happened

here. Treating the two differently would allow the Commonwealth to evade

general/specific rule and would render the legislative intent of a graduated

system of prosecution and punishment all but meaningless in such

situations.

____________________________________________


8
  The 12 packets of marijuana, each weighing 0.72 grams, equals 8.64
grams.



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      In light of the foregoing, we vacate judgment of sentence for

possession of marijuana and remand to 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.     Additionally, we direct the trial court to

formally dispose of the conspiracy charge.

      Judgment of sentence vacated, matter remanded to the Court of

Common Pleas of Philadelphia County for action consistent with this decision.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2014




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