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 sent ence imposed on him on March 4, 2013, following his conviction on th e 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 con victed of possession of a small amount of marijuana (“SAM”). 3 After a thorough

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1 35 P.S. § 780-113(a)(16).

2 35 P.S. § 780-113(a)(30).

3 35 P.S. § 780-113(a)(31).J-S21034- 14

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rev iew 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 char ge of possession of a small amount of marijuana and for imposition of a new sente nce. 5 We adopt the facts of this matter as related by the t rial court in its Pa.R.A.P. 1925(a) Opinion. On October 18, 2012, at approximately 12:15 p.m., Of ficer Robinson and his partner were in an unmarked vehicle conducting a surveillance for the sale of illegal narcot ics near the 600 block of South 56 th Street in the City of Philadelphia. The officer observed Tisdale and another male, later ident ified as Raheem, standing on the southwest corner of 56 th Street and Walton Street as an unknown black female approached th e corner of 56 th 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 a mount of U.S. currency. The female began to walk toward the t wo males whereupon a marked police vehicle came traveling westbo und on Catherine Street. The female immediately put the m oney back

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4 On December 17, 2013, the Commonwealth obtained an extension of time to February 13, 2014 to file its brief. The order st ated no further extension would be granted. The Commonwealth did not file it s brief until June 16, 2014. Therefore, we have not considered the Commonw ealth’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 ch arge. There are no orders in the certified record indicating the disp osition of that charge. The docket indicates that Tisdale was found not guilty o f 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.J-S21034- 14

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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 rea ch into his pocket and pull out a clear baggie containing sever al items believed to be marijuana. The two males continued onto Walton Street, at which p oint Raheem removed a clear baggie from his pants pocket and handed it to Tisdale. Tisdale placed the baggie ins ide of a white plastic bag that had already been positioned on the po rch of 5545 Walton Street. The two men then proceeded to w alk down 56 th Street. Police then went to the porch and recovered twelve (12) yellow packets, each containing 0.72 grams of mari juana, from within the clear baggie that had been placed ins ide of the white plastic bag. Police apprehended the two males an d recovered $20 USD from Tisdale and $49 USD from Rahee m. Trial Court Opinion, 10/04/2013, at 2- 3. Procedurally, we note that Tisdale was convicted of PWI D and conspiracy at a Municipal Court trial held on December 7 , 2012. At that
ti me, 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 deli ver. 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 dr ugs involved was

un der 30 grams of marijuana, the court was obligated to find Tisdale guilty of SAM. The trial court rejected that argument and o pined that because Tisdale was never charged with SAM, Gordon was inapplicable. This appeal followed.J-S21034- 14

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The instant case presents a unique combination of two principles of law: the specific/general rule and lesser included offen ses. 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 th e law not to permit prosecutions under the general provisions of the penal co de when there are applicable special provisions available.” Id . at 796-97. Further, [t]his same policy remains in force nearly sixty years lat er and continues to prevent the Commonwealth for pursuing gen eral criminal charges against an individual whose conduct was intended to be punished by a “specific penal provision” th at constitutes the exclusive legal authority: for prosecutio n 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 wa s convicted under the general offense found at subsection (16). Gordon stated, in relevant part, [i]n our view, the General Assembly, by including subse ction (31) in section 780-113 of the proscribed conduct of the Act, wisely set out the specific crime of possession of a small am ount of marijuana, and created a graduated system of penal ties 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 proscripti on contained in subsection (16) of section 780-113 of the C ontrolled Substance, Drug, Device and Cosmetic Act must be vacated, a nd the case remanded to the trial court for the entry of a verdict on the charge of possession of a small amount of marijuana a s stated in subsection (31) of the Act. Commonwealth v. Gordon , 897 A.2d at 509- 10. The recognition of the legislative intent to provid e 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 b e prosecuted under at least three sections. Possession of a la rge 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 del iver, the offense is a misdemeanor punishable by up to a year imprisonment and/or a fine of $5,000. If the jury fi nds 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 se ction 780 -113(a)(30) and section 780-113(a)(16), the critical issue for the jury to decide is the question of intent. As betwe en 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).J-S21034- 14

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In light of the foregoing case law, it is apparent t hat 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 subsect ion (16). To address this concern, we must look to the application of r ules regarding lesser included offenses. The trial court correctly noted that Tisdale was not cha rged 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

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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 app eals to the Court of Common Pleas of Allegheny County, the ca ses 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 previ ously rendered.’ 2 Am.Jur.2d Admin.Law § 698 (1962)”) (Spa eth, 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 una vailing. The fact that Tisdale was not formally charged with ei ther 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 includ ed the offense of mere possession. Every element of possession is included within the crime of possession with intent to de liver. The only element which distinguishes the latter from th e former is the manufacture, delivery, or an intent to manufac ture o r deliver. Similarly, possession of a small quantity of marijuana for personal use would necessarily be include d within the crime of possession with intent to deliv er. The issue, therefore, is whether the evidence at trial woul d possibly support both a conviction of the lesser offense of possession of a small quantity for personal use and an acquittal of posse ssion 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 includ ed offenses to PWID, we examine how a defendant is charged with a lesser included offense. This end has been frequently achieved by the Commonwe alth in one of two ways, namely: (1) they have expressly put t he accused “on notice” by specifica lly charging him with the less culpable offense; or, (2) they have implicitly put the accused “on notice” through the information because the proven, bu t uncharged, crime is a lesser included offense of the charge d, but unproven, offense as a matter of law. Commonwealth v. Gouse , 429 A.2d 1129, 1132 (Pa. Super. 1981) (citation omitted).J-S21034- 14

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Here, when Tisdale was formally charged with PWID onl y, he was implicitly charged with the lesser included offenses of po ssession and SAM. Because Tisdale was implicitly charged with the lesser incl uded offenses, he could be convicted of either of the lesser included offe nses, subject to any other applicable principles of law and evidence. Instantly, as demonstrated above, the general/specific p rinciple governs the application of possession and SAM. The evide nce, as stipulated at trial, was that the total amount of marijuana inv olved was 8.64 grams. 8
See N.T., Trial, 3/4/2013, at 30-31. Pursuant to subsecti on (31), 30 grams of marijuana or less shall be considered a small amount o f marijuana. Accordingly, because Tisdale was implicitly charged wit h both possession and SAM, and the stipulated evidence clearly supports the spe cific 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 re ason to draw a distinction between being formally charged with possessio n 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 i n 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 se ntence for possession of marijuana and remand to the trial court fo r entry of a guilty verdict on the charge of possession of a small amount of m arijuana 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 consist ent with this decision. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/27/2014