J-S23026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, 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-51-CR-0012336-2011

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-51-CR0012336-2011 against Appellee, Gary Thompson, pursuant to 18 Pa.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-51-CR-0012336-2011). 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.
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observed performing a hand-to-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 accepting 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 [Appellee] 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 recovered 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-51-CR-0002319-2012). 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 Street, 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 house, 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 house 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.
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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 manufacture, 

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 manufacture 

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]” (hereinafter 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 demonstrate 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 the 
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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 Motion 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 episode; 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 Dismiss 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 for 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 concluded] 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 

subsequent 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 charges against 

[Appellee] based on 18 Pa.C.S. § 110?
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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 that 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 provides, 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 

occurred 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 judicial 
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economy and finality by avoiding repetitious litigation.” George, 38 A.3d at 

896 (Pa. Super. 2012) (citation omitted). “By requiring 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) the 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 arose from a single criminal episode. Reid, 77 A.3d at 582 

(citing Hude, 458 A.2d at 181). The Reid Court explained:
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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 exists. 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 offenses. 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 since 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 occurred. 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 issues 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 a 
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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 at 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 connected. 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 substantial 

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 were not part of the 
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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 finding 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 Brief 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)
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motion was granted, [Appellee] 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 the 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 motion 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 introduce 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 common 

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 Opinion, 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.Crim.P. 582(A)(1). 
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after obtaining 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 tried 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.Super. 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 practical theory. See 

id.

Hayes, 755 A.2d at 35 (footnote omitted). 
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underlying the October and December 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 Court 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 

connection 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 Commonwealth 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)
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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 was 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 sought 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 

remand this matter to the trial court to reinstate the charges from docket 

number CP-51-CR-0012336-2011.

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 3-4. 
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Judge Donohue joins the Memorandum.

Judge Strassburger files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/19/2015