J-S21034-14

2014 PA Super 183 

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.

OPINION BY OTT, J.: FILED AUGUST 27, 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 Tisdale’s sole issue on appeal is his claim that he was 

improperly convicted of possession and should have been convicted of 

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

____________________________________________ 

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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review of Tisdale’s brief,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, 

2014. Therefore, we have not considered the Commonwealth’s brief.

 

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 

A.2d 793 (Pa. 1943), and states: “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.” 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 

intended to be punished by a “specific penal provision” that 

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. 
J-S21034-14

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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, alone, however, ignores the trial court’s 

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 

to be retried “as if the prior summary proceeding[s] had not

occurred,” that is, 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 means “that the defendant's case will 

in fact be tried in Common Pleas ‘anew’ the same as if it had not 

been heard before and as if no decision had been previously 

rendered.’ 2 Am.Jur.2d Admin.Law § 698 (1962)”) (Spaeth, J., 

Dissenting and Concurring Opinion). 

Commownealth v. Krut, 457 A.2d 114, 116 (Pa. Super. 1983). 
J-S21034-14

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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 

accused “on notice” by specifically charging him with the less 

culpable offense; or, (2) they have implicitly put the accused “on 

notice” through the information because the proven, but 

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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 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, equaled 8.64 

grams. 
J-S21034-14

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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: 8/27/2014