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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. GARY THOMPSON, Appellee No. 1426 EDA 2014

Appeal from the Order Entered April 7 , 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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BEFORE: DONOHUE, SHOGAN, and STRASSBURGER, * JJ. MEMORANDUM BY SHOGAN, J.: FILED JUNE 19, 2015 The Commonwealth of Pennsylvania appeals from the order entered on April 7, 2014, that dismissed the charges filed at docket number CP

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- 2011 against Appellee, Gary Thompson, pursuant to 18 P a.C.S. § 110. We reverse and remand for further proceedings consistent with this memorandum. The relevant facts of this matter were set forth in the trial court’s opinion as follows:

The below

- listed facts represent the case for the October arrest (CP

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- 2011). On October 11, 2011, as a result of a police narcotics surveillance operation in the area of 906 W. Huntingdon Street, Philadelphia, PA (hereinafter “subject house”), the police arrested Robert Beckham. Mr. Beckham was

____________________________________________

* Retired Senior Judge assigned to the Superior Court.J

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observed performin g a hand

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- hand transaction with a pedestrian, where Mr. Beckham delivered two packets of marijuana in exchange for U.S. currency. Not long after, [Appellee] was observed exiting the subject house, engaging in a conversation with Mr. Beckman, and acceptin g a large volume of U.S. currency from Mr. Beckham. Mr. Beckham was arrested after he left the subject house. Following the arrest, a female individual, who observed Mr. Beckham’s arrest, hastily returned to the subject house, presumably to inform [Appell ee] of the arrest. Immediately thereafter [Appellee] was observed exiting the subject house with a large duffel bag. [Appellee] got into a vehicle and drove off. The vehicle was subsequently stopped and [Appellee] was arrested. The large duffel bag recover ed contained a large quantity of marijuana and multiple handguns. A search warrant was issued for the subject house, where law enforcement recovered marijuana, unused packaging for the drugs (jars and lids), a ballistic vest, and $1,866. The below

- listed facts represent the case related to the December arrest (CP

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- 2012). On December 6, 2011, through December 9, 2011, the police conducted a narcotics surveillance operation at the subject house and on the house next door (908 W. Huntingdon Stre et, hereinafter the “adjacent house”). On December 6, 2011, a confidential informant (hereinafter “CI”) purchased marijuana from [Appellee]. The CI approached [Appellee], who was sitting on the front steps of the subject house. After a brief conversation, [Appellee] went into the subject house and, upon his return, he engaged in a hand

- to
- hand transaction of marijuana with the CI. On December 7, 2011, the CI went back to the subject house, and a relative of [Appellee’s], from the window of the adjacent hou se, informed the CI that [Appellee] was not home. She then asked, “what do you need?” The relative then came downstairs and engaged in a hand

- to
- hand transaction of marijuana with the CI. On December 9, 2011, search warrants were executed on the subject ho use and the adjacent house. Handguns, as well as new and unused packaging (jars and lids), baggies, and a scale were recovered from the adjacent house

— a box for one of the said handguns was recovered from the subject house.J

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Trial Court Opinion, 12/12/14, at 3

- 4. The trial court also explained the procedural history of this case as follows:

The procedural history in this case is somewhat complex. On October 11, 2011, [Appellee] was arrested for events that took place in around this date and charged with ma nufacture, delivery, or possession with intent to manufacture or deliver (35 P.S. §780

- 113); conspiracy to manufacture, deliver, or possession with intent to manufacture or deliver (18 Pa.C.S.A. §903); firearms not to be carried without a license (18 Pa.C. S.A. §6106); two counts of possessing instruments of crime (18 Pa.C.S.A. §907); possession of a controlled substance (35 P.S. §780

- 113); and carrying firearms on public streets or public property in Philadelphia (18 Pa.C.S.A. §6108). On December 9, 2011, [Appellee] was arrested for events that took place in around December 6, 2011, through to December 9, 2011, and charged with conspiracy to manufacture, deliver, or possession with intent to manufacture or deliver (18 Pa.C.S.A. §903); possession of firearm prohibited (18 Pa.C.S.A. § 6105); possession of marijuana (35 P.S. §780

- 113); use and/or possession of drug paraphernalia (35 P.S. §780

- 113); possessing instruments of crime (18 Pa.C.S.A. §907); and manufacture, delivery, or possession with intent to manuf acture or deliver (35 P.S. §780

- 113). On November 1, 2013, the Commonwealth filed a dual motion entitled, “Notice of Intent to Introduce Other Acts or Evidence [Pa.R.E. 404(b)] and Motion to Consolidate Matter for Joint Trial [Pa.R.Crim.P. 582]” (herei nafter the “dual motion”). The 404(b) component of the dual motion moved to admit evidence related to the December arrest (hereinafter the “December arrest”) to be used at trial for the October arrest (hereinafter the “October arrest”) in order to demonstr ate a common plan, scheme and design, or to establish motive, intent, knowledge, identity, or absence of mistake. The Rule 582 component of the dual motion moved for the December and the October arrests to be consolidat[ed]/joined into a single trial. The case for the December arrest, however, had already been adjudicated on March 18, 2013, some eight months prior to the Commonwealth’s joinder request. 1 On November 25, 2013, the Honorable Charles Ehrlich granted the 404(b) component of theJ

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dual motion. The dual motion’s Rule 582 joinder request was never ruled upon.

1 In the case related to the December arrest, [Appellee] was found guilty of PWID and sentenced to house arrest. On December 10, 2013, [Appellee] filed with the Honorable Kenneth Powell a Motio n to Dismiss the case related to the October arrest pursuant to 18 Pa.C.S.A. §110. [Appellee’s] motion asserted that the October and December arrests should have been consolidated into a single trial because both cases stemmed from the same criminal episod e; thus, since the two cases were not joined, the October arrest should be dismissed on the grounds that [Appellee] was formally prosecuted for the same offense when he was adjudicated for the December arrest. On December 23, 2013, [Appellee’s] Motion to D ismiss was denied. On December 31, 2013, the Defendant filed a Motion to Reconsider Order Denying Motion to Dismiss with the Honorable Sean Kennedy. Judge Kennedy granted [Appellee’s] Motion to Dismiss on March 4, 2013, but the case dismissal was stayed fo r 30 days pending the Commonwealth’s Appeal. On March 9, 2014, the Commonwealth filed a Motion to Reconsider the dismissal. The Commonwealth’s motion argued that the October and December arrests were unfit to be consolidated, which [the trial court conclu ded] was a position in opposite of its previous Rule 582 joinder request. On April 7, 2014, an Order was issued denying [the] Commonwealth’s Motion to Reconsider, and the October arrest case was dismissed. The Commonwealth filed a timely appeal and a subse quent statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Trial Court Opinion, 12/12/14, at 1

- 3. In this appeal, the Commonwealth raises one issue for this Court’s consideration: Did the lower court err when it dismissed the charg es against [Appellee] based on 18 Pa.C.S. § 110?J

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Commonwealth’s Brief at 4. Specifically, the Commonwealth asserts that the trial court erred in concluding that prosecution of the October arrest was barred by the prosecution of the December arrest and th at the trial court erred in concluding that judicial estoppel applied. Id . at 10, 13. Our standard of review of issues concerning 18 Pa.C.S. § 110 is plenary. Commonwealth v. George , 38 A.3d 893, 896 (Pa. Super. 2012) (citation omitted). Section 110 pr ovides, in relevant part, as follows: When prosecution barred by former prosecution for different offense Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances: (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for: * * * (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and occu rred within the same judicial district as the former prosecution unless the court ordered a separate trial of the charge of such offense[.] 18 Pa.C.S. § 110(1)(ii). The policies behind 18 Pa.C.S. § 110 serve two purposes: “to protect accused persons from governmental harassment of undergoing successive trials for offenses stemming from the same episode, and to promote judicialJ

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economy and finality by avoiding repetitious litigation.” George , 38 A.3d at 896 (Pa. Super. 2012) (citation omitted). “By requir ing compulsory joinder of all charges arising from the same criminal episode, a defendant need only ‘once run the gauntlet’ and confront the awesome resources of the state.” Id . (quoting Commonwealth v. Hude , 458 A.2d 177, 180 (Pa. 1983)). The test for whether 18 Pa.C.S. § 110 bars a subsequent prosecution was set forth in Commonwealth v. Fithian , 961 A.2d 66 (Pa. 2008); the elements of that test are as follows: (1) the former prosecution must have resulted in an acquittal or conviction; (2 ) the current prosecution is based upon the same criminal conduct or arose from the same criminal episode as the former prosecution; (3) the prosecutor was aware of the instant charges before the commencement of the trial on the former charges; and (4) t he current offense occurred within the same judicial district as the former prosecution. Id . at 72 (emphasis added). Here, only the second prong, known as the “logical relationship” prong, is at issue. In Commonwealth v. Reid , 77 A.3d 579 (Pa. 2013), the Pennsylvania Supreme Court applied its earlier holding from Hude and instructed that courts considering the logical

- relationship prong should look at the temporal and logical relationship among the charges to determine whether they aro se from a single criminal episode. Reid , 77 A.3d at 582 (citing Hude , 458 A.2d at 181). The Reid Court explained:J

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Generally, charges against a defendant are clearly related in time and require little analysis to determine that a single criminal episode e xists. However, in defining what acts constitute a single criminal episode, not only is the temporal sequence of events important, but also the logical relationship between the acts must be considered. Reid , 77 A.3d at 582 (quoting Hude , 458 A.2d at 181). The Court continued: In ascertaining whether a number of statutory

offenses are logically related to one another, the court should initially inquire as to whether there is a substantial duplication of factual, and/or legal issues presented by the offense s. If there is duplication, then the offenses are logically related and must be prosecuted at one trial. The mere fact that the additional statutory offenses involve additional issues of law or fact is not sufficient to create a separate criminal episode s ince the logical relationship test does not require an absolute identity of factual backgrounds. Id . (quoting Hude , 458 A.2d at 181).

In determining if the “logical relationship” prong of the test has been met, we must ... be aware that a mere de minimis duplication of factual and legal issues is insufficient to establish a logical relationship between offenses. Rather, what is required is a substantial duplication of issues of law and fact.
In Hude , we found that such substantial duplication had occurre d. We did not, however, reach this conclusion by merely cataloguing simple factual similarities or differences between the various offenses with which the defendant was charged. Rather, we found that these offenses presented substantial duplication of issu es of law and fact because the case did not involve “a situation where different evidence was required to be introduced to establish the alleged individual instances of possession and delivery”, but rather, involved aJ

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- situation in which the Commonwealth’s case in both the first and second drug trials rested solely upon the credibility of a single witness. Thus, we concluded that the drug charges brought against the defendant were not only temporally related but also logically related, and thus constituted a single criminal episode. Reid , 77 A.3d at 582

- 583 (quoting Commonwealth v. Bracalielly , 658 A.2d 755, 761

- 762 (Pa. 1995)). The Supreme Court also cautioned lower courts against “cataloguing simple factual similarities or differences and interpreting the term single criminal episode too rigidly.” Reid , 77 A.3d at
581

- 582 (internal quotation marks omitted). In the case at bar, the Commonwealth claims that the October and December arrests were not part of the same criminal episode. Commonwealth’s Brief a t 10. The Commonwealth asserts that: the prosecution arising from the October arrest and the prosecution arising from the December arrest related to different criminal episodes. The two episodes were two months apart. Moreover, they were not logically con nected. They involved different buyers (one was a CI and one was not), different police officers, and different co

- conspirators. [Appellee] delivered drugs to the buyer directly in the December episode, while Beckman delivered drugs in the October episode. [Appellee’s] relative was involved in [the] December episode but not the October one, and Beckman was involved in the October episode but not the December one. Because different evidence would be necessary to prove the offenses in each case, there is no s ubstantial duplication of issues of fact and law, and the two prosecutions related to separate episodes. Commonwealth’s Brief at 11

- 12. We agree with the Commonwealth and conclude that the events supporting the October arrest and the December arrest wer e not part of theJ

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same criminal episode. The prosecutions do not depend on the same evidence or the credibility of one witness. The buyers, sellers, and police officers were different in each instance. Thus, we conclude that the trial court erred in fin ding that the October arrest and the December arrest were part of one criminal episode. Additionally, the Commonwealth avers that the trial court erred in concluding that it was estopped from opposing Appellee’s motion for dismissal. Commonwealth’s Brie f at 13. The trial court considered the Commonwealth’s mention of Rule 582 and discussion of joinder as an assertion that the October and December arrests were necessarily part of the same criminal episode. The trial court concluded as follows:

In the present matter, the Commonwealth filed a dual motion, which included a motion to consolidate [Appellee’s] October and December arrests for joint trial, pursuant to Pa.R.Crim.P. 582. [ 1 ] After the 404(b) component of the dual

____________________________________________ 1 Rule 582. Joinder -- Trial of Separate Indictments or Informations (A) Standards (1) Offenses charged in separate indictments or informations may be tried together if: (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (b) the offenses charged are based on the same act or transaction. (Footnote Continued Next Page)J

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motion was granted, [Appe llee] filed a Motion to Dismiss, pursuant to Pa.C.S.A. § 110, advocating that the October arrest was from the same criminal episode as the December arrest; therefore, failure to consolidate barred subsequent prosecution. In response to [Appellee’s] Motion to Dismiss, the Commonwealth advocated a position contrary to its previous motion to consolidate and asserted that the two matters were not fit to be joined. Trial Court Opinion, 12/12/14, at 11. The trial court continued: The Commonwealth claims that t he joinder component of its dual motion was a mistake, with an unfortunate caption; and, although filed with the Court, the Commonwealth maintains it never had any intention to consolidate the two matters. Yet, there are numerous instances in the dual moti on that indicate otherwise. For instance, the dual motion clearly stated that it was being offered to the Court pursuant to Pa. R.E. 404(b) and pursuant to Pa. R. Crim.P. 582. The dual motion also specifically requested to take it as “an intention to intro duce at trial . . . evidence of other crimes, wrongs, or acts, if joinder of both criminal matters is not granted .” (emphasis added). As previously stated, the dual motion also asserted that, “both cases consolidated together illustrate that there is a com mon scheme .” (emphasis added and original, respectively). In addition, the Commonwealth’s only requested relief under the dual motion’s “WHEREFORE” paragraph “respectfully request[ed] that these cases be consolidated for a joint trial.” Trial Court Opinio n, 12/12/14, at 11. The trial court then engaged in a discussion of judicial estoppel and its effects in the present case. We note that judicial estoppel provides that “a party in a criminal proceeding cannot argue for a specific ruling and then,

(Footnote Continued)

_______________________ Pa.R.Cr im.P. 582(A)(1).J

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after o btaining a favorable ruling, claim that the trial judge committed an error of law in making that ruling.” Commonwealth v. Hayes , 755 A.2d 27, 35 (Pa. Super. 2000). 2 As noted above, Pa.R.Crim.P. 582 permits offenses charged in separate informations to be t ried together if: the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or the offenses charged are based on the same act or transaction. Pa.R.Crim.P. 582(A)(1)(a) and (b). However, we point out that the Commonwealth never claimed that the October arrest and the December arrest were part of one criminal episode. Rather, the Commonwealth argued that the facts

____________________________________________ 2 With respect to the viability of the doctrine of judicial estoppel in Pennsylvania, we note that: A panel of this Court once held that notions of equity have no place in criminal proceedings. See Commonwealth v. Shinn , 368 Pa.Super. 436, 534 A.2d 515, 518 (1987) (holding that “equitable estoppel has no place in the criminal law”). Nonetheless, a later panel has given equitable doctrines, in a criminal context, an imprimatur of validity. This Court, in Commonwealth v. Lam , 453 Pa.Sup er. 497, 684 A.2d 153 (1996), examined the concept of judicial estoppel as a viable doctrine in criminal proceedings. See Lam , 684 A.2d at 164

– 65. Although it ultimately proved to be an unsuccessful argument, that panel accepted judicial estoppel as a prac tical theory. See id

. Hayes , 755 A.2d at 35 (footnote omitted).J

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underlying the October and De cember arrests were part of a common scheme under Pa.R.E. 404(b). Notice of Intent to Introduce Other Acts or Evidence and Motion to Consolidate Matters for Joint Trial, 11/1/13, at 3

- 5.
In Commonwealth v. Spotz , 756 A.2d 1139 (Pa. 2000), our Supreme Cour t discussed the distinction between evidence admitted under Pa.R.E. 404(b) and evidence constituting a single criminal episode: Initially, we reject appellant’s suggestion that, merely because certain evidence of appellant’s previous crimes was relevant and admissible in this prosecution, the crimes must be deemed to be part of the same criminal episode. Other crimes evidence may be admissible, as it was here, for a wide variety of evidentiary purposes; but that fact alone does not prove such a logical co nnection between the acts so as to constitute a single criminal episode. Spotz , 756 A.2d at 1158. Here, the purpose of the Commonwealth’s motion was to introduce direct evidence of Appellee’s involvement in the sale of drugs, as illustrated through the scheme common to both the October and December arrests. Notice of Intent to Introduce Other Acts or Evidence and Motion to Consolidate Matters for Joint Trial, 11/1/13, at 3

- 5. The intention of the motion was never a joint trial. Indeed, the Commonweal th avers that the inclusion of “joint trial” language was a mistake. Commonwealth’s Brief at
14. 3 The trial court rejected this explanation and discussed the language in

____________________________________________ 3 The Commonwealth made this same argument at the April 7, 2014 hearing. The Commonwealth averred that joinder was impossible and that (Footnote Continued Next Page)J

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the motion concerning a common scheme and found it was a request for joinder. Trial Court Opinion, 12/12/14, at 11. However, as discussed above, the language in the motion alleges only common scheme, not a motion for joinder claiming a single criminal episode. Additionally, at the time the Commonwealth filed its motion, a joint trial w as not possible , as the crimes underlying the December arrest had already been prosecuted to conviction. We conclude that because the language in the motion focuses on a request under Pa.R.E. 404(b), and given the impossibility of the relief allegedly sou ght by the Commonwealth, the joint trial language was included in error. Accordingly, what remains in the motion is only the Commonwealth’s request under Pa.R.E. 404(b). Thus, because we conclude that the Commonwealth did not argue for joinder, it cannot be estopped from arguing against it. For the reasons set forth above, we conclude the trial court erred in granting Appellee’s motion to dismiss pursuant to 18 Pa.C.S. § 110. Therefore, we reverse the order granting Appellee’s motion to dismiss and

reman d this matter to the trial court to reinstate the charges from docket number CP

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- 2011. Order reversed. Case remanded with instructions. Jurisdiction relinquished. (Footnote Continued)

_______________________ the inclusion of the joinder language was a “cutting [and] pasting issue” and was “clearly a mistake.” N.T., 4/7/14, at 3

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Judge Donohue joins the Memorandum. Judge Strassburger files a Concurring Me morandum. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/19/2015