J-S35011-19

____________________________________

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RASHUN MAURICE AUSTION 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1167 EDA 2018

Appeal from the Order April 9, 2018

In the Court of Common Pleas of Pike County Criminal Division at No(s): 

CP-52-CR-0000297-2015, 

CP-52-CR-0000659-2016

BEFORE: OLSON, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED MARCH 13, 2020

Appellant, Rashun Maurice Austion, appeals from the order entered on 

April 9, 2018. On appeal, Appellant claims that the trial court erred in denying 

his motion filed pursuant to Pa.R.Crim.P. 587(B), which asserted double 

jeopardy as a bar to reprosecution of narcotics charges. Upon careful 

consideration, we affirm.

We briefly discuss the facts of this case, as set forth in the affidavit of 

probable cause, as follows. On May 8, 2015, police observed Appellant driving 

a rental car without activated headlights at approximately 2:00 a.m. in Greene 

Township, Pike County, Pennsylvania. Police initiated a traffic stop of the 

vehicle. Appellant was driving with a female passenger, later identified as 

Aleisha Robinson. Police asked both occupants where they were going and 

they replied that they were traveling to a book convention in Pittsburgh, 
J-S35011-19

- 2 -

Pennsylvania. Police detected the odor of marijuana and asked Appellant and 

Robinson about it. Robinson appeared nervous and her hands were visibly 

shaking. She admitted to police that she smoked marijuana in the vehicle 

earlier. When police asked Appellant the identity of the individual who rented 

the vehicle, Appellant responded that it was his cousin. However, without 

supporting rental documentation and upon detecting the odor of marijuana, 

police conducted a search of the vehicle. During a search of Robinson’s purse, 

police recovered two Black & Mild cigars, two Palma cigars, one Blunt Ville 

cigar, one “Blunteffects” concentrated air freshener, and one glass pipe with 

suspected burnt marijuana residue. From the trunk, police recovered a black 

backpack containing three large plastic bags with suspected narcotics. In 

total, police recovered approximately 8,400 individual glassine envelopes that 

contained a substance later confirmed to be heroin. The recovered contraband 

had an approximate street value of $85,000.00.

The trial court summarized the procedural history of this case as follows:

At docket no. 297-2015, the Commonwealth charged [Appellant] 

with one (1) count each of possession with intent to manufacture 

or deliver a controlled substance [(PWID)], 35 P.S. 

§ 780-113(a)(30), possession of a controlled substance, 35 P.S. 

§780-113(a)(16), possession of drug paraphernalia, 35 P.S. 

§ 780-113(a)(32), and period for requiring lighted lamps, 75 

Pa.C.S.A. § 4302(a)(1).

The case at docket no. 297-2015 proceeded to a jury trial during 

the July 2016 criminal term of court. On July 20, 2016, the 

empaneled jury returned a verdict of not guilty on the possession 

of drug paraphernalia charge and was deadlocked on the [PWID] 

and possession of a controlled substance charges. On July 20, 

2016, after [the] entry of the jury’s verdict, [the trial court] found 

[Appellant] guilty of the [period for requiring lighted lamps] 
J-S35011-19

- 3 -

summary offense. [The trial court] declared a mistrial [as to PWID 

and simple possession] due to [] jury [] deadlock[]. The 

Commonwealth [gave] notice of its intention to retry [Appellant] 

on the deadlocked charges.

At docket no. 659-2016, on November 15, 2016, the 

Commonwealth filed an additional criminal charge against 

[Appellant] of criminal conspiracy to commit [PWID], 18 Pa.C.S.A. 

§ 903(a)(1), 35 P.S. 780-113(a)(30). The cases at docket nos. 

297-2015 and 659-2016 [were] consolidated for trial purposes. 

On September 5, 2017, [Appellant] filed [a] motion to dismiss 

pursuant to Pa.R.Crim.P. 587(B) at both dockets. A hearing on 

[Appellant’s] motion was held on February 2, 2018.

Trial Court Opinion, 3/23/2018, at 1-2 (superfluous capitalization and 

parentheticals omitted). 

The trial court denied relief on Appellant’s dismissal motion by order and 

opinion entered on March 23, 2018. On April 9, 2018, upon Appellant’s motion 

to clarify the March 23, 2018 order, the trial court entered an order finding 

that Appellant’s motion for dismissal was not frivolous and certified the order 

as an immediately appealable collateral order under Pa.R.A.P. 313(b). This 

timely appeal resulted.1

Appellant raises the following issue for our review:

____________________________________________

1

 On April 19, 2018, Appellant filed a single notice of appeal listing both 

docket numbers. We note that on June 1, 2018, our Supreme Court 

prospectively “required that when a single order resolves issues arising out on 

more than one lower court docket, separate notices of appeal must be filed.” 

Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018). However, 

because Appellant filed his notice of appeal before Walker was decided, it is 

inapplicable herein. On April 20, 2018, the trial court ordered Appellant to file 

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). Appellant complied timely on May 8, 2018. On June 26, 2018, the 

trial court issued another opinion pursuant to Pa.R.A.P. 1925(a).
J-S35011-19

- 4 -

Whether the trial court abused its discretion or erred as a matter 

of law in denying Appellant’s motion to dismiss pursuant to 

Pa.R.Crim.P. 587(B) by violating Appellant’s constitutional right 

against double jeopardy which is guaranteed both by the 14th and 

5

th Amendments to the federal constitution and by Article I, § 10 

of Pennsylvania’s constitution[?]

Appellant’s Brief at 5 (cleaned up).

Appellant argues, as a matter of law, that his previous acquittal for 

possession of drug paraphernalia bars reprosecution for PWID and simple 

possession of a controlled substance. Id. at 8-13. Appellant claims that “[t]he 

drug paraphernalia in this case was glassine packets which contained the 

alleged controlled substance.” Id. at 8. Appellant posits that “[i]n order to 

convict [him] of the two [deadlocked narcotics] possession charges[, PWID 

and possession of a controlled substance, as well as a new charge for 

conspiracy,] a new jury would have to find that [] Appellant possessed the 

glassine packets containing the alleged controlled substance.” Id. Appellant 

argues that such a “finding would contradict the first jury’s finding which 

acquitted [] Appellant of [p]ossession of [d]rug [p]araphernalia and would 

thereby violate Appellant’s constitutional right against double jeopardy.” Id. 

Accordingly, Appellant posits:

It would be illogical and impossible for a second jury to find that 

[] Appellant possessed the controlled substances without also 

finding that [] Appellant possessed drug paraphernalia [for which 

he was acquitted]. Such a conclusion is analogous to the following 

scenario. One [j]ury makes a determination that a person did not 

possess a glass containing water but a second [j]ury determines 

that the same person possessed the water but not the glass 

containing the water. Clearly, in this scenario, if you possess one 

you must possess both. Should a second jury find that [] 

Appellant possessed a controlled substance [stored inside] the 
J-S35011-19

- 5 -

glassine packets it would contradict and overrule the factual 

findings of the first jury that already determined that [] Appellant 

was not in possession of drug paraphernalia which contained the 

controlled substance.

Id. at 12-13.

Our standard of review is as follows:

An appeal grounded in double jeopardy raises a question of 

constitutional law. This Court's scope of review in making a 

determination on a question of law is, as always, plenary. 

As with all questions of law, the appellate standard of review is de 

novo. To the extent that the factual findings of the trial court 

impact its double jeopardy ruling, we apply a more deferential 

standard of review to those findings:

Where issues of credibility and weight of the evidence are 

concerned, it is not the function of the appellate court to 

substitute its judgment based on a cold record for that of 

the trial court. The weight to be accorded conflicting 

evidence is exclusively for the fact finder, whose findings 

will not be disturbed on appeal if they are supported by the 

record.

The prohibition against double jeopardy was designed to protect 

individuals from being tried or punished more than once for the 

same allegation or offense. The Fifth Amendment of the United 

States Constitution provides, in relevant part, that no person shall 

be subject for the same offence to be twice put in jeopardy of life 

or limb. Likewise, Article I, § 10 of the Pennsylvania Constitution 

provides that no person shall, for the same offense, be twice put 

in jeopardy of life or limb.

Commonwealth v. Miller, 198 A.3d 1187, 1191 (Pa. Super. 2018) (internal 

citations, quotations, and brackets omitted).

This Court previously determined:

Retrial after a hung jury normally does not violate the Double 

Jeopardy Clause.
J-S35011-19

- 6 -

The doctrine of collateral estoppel is a part of the Fifth 

Amendment's guarantee against double jeopardy, which was 

made applicable to the states through the Fourteenth 

Amendment. The phrase “collateral estoppel,” also known as 

“issue preclusion,” simply means that when an issue of law, 

evidentiary fact, or ultimate fact has been determined by a valid 

and final judgment, that issue cannot be litigated again between 

the same parties in any future lawsuit. Collateral estoppel does 

not automatically bar a subsequent prosecution, but rather, it bars 

redetermination in a second prosecution of those issues 

necessarily determined between the parties in a first proceeding 

that has become a final judgment.

Traditionally, Pennsylvania courts have applied the collateral 

estoppel doctrine only if the following threshold requirements are 

met: 1) the issues in the two actions are sufficiently similar and 

sufficiently material to justify invoking the doctrine; 2) the issue 

was actually litigated in the first action; and 3) a final judgment 

on the specific issue in question was issued in the first action. An 

issue is actually litigated when it is properly raised, submitted for 

determination, and then actually determined. For collateral 

estoppel purposes, a final judgment includes any prior 

adjudication of an issue in another action that is sufficiently firm 

to be accorded conclusive effect.

Commonwealth v. Brockington-Winchester, 205 A.3d 1279, 1283–1284 

(Pa. Super. 2019).2

Our Supreme Court’s decision in Commonwealth v. States, 938 A.3d 

1016 (Pa. 2007), relied upon by both parties and the trial court, provides 

additional guidance. In that case, States and two other men were involved 

in a single car accident. States was the sole survivor of the crash. The 

Commonwealth charged him with two counts each of involuntary 

____________________________________________

2

In this case, the threshold requirements for application of collateral estoppel 

appear to be met. The issues are sufficiently similar, possession was litigated 

in the first trial, and a final judgment was entered.
J-S35011-19

- 7 -

manslaughter, accidents involving death or personal injury while not properly 

licensed, homicide by vehicle, and homicide by vehicle while driving under the 

influence of alcohol. The parties agreed that the trial court judge would hear 

the accidents involving death while not properly licensed charge, after a jury 

decided the other criminal charges. The jury deadlocked on all the charges 

before it. Thereafter, the trial judge acquitted States of the accidents 

involving death charge because the trial court explicitly stated that it was not 

convinced beyond a reasonable doubt that States was the driver of the vehicle. 

The States Court ultimately determined that the principles of collateral 

estoppel operated to prevent the Commonwealth from proceeding with retrial 

on the charges upon which the jury deadlocked based upon double jeopardy. 

The States Court examined the three-part test, as set forth above, to 

determine whether collateral estoppel applied to limit further litigation. It 

stated:

In the criminal law arena, the difficulty in applying collateral 

estoppel typically lies in deciding whether or to what extent an 

acquittal can be interpreted in a manner that affects future 

proceedings, that is, whether it “reflects a definitive finding 

respecting a material element of the prosecution's subsequent 

case.” Commonwealth v. Buffington, 828 A.2d 1024, 1032 (Pa. 

2003). We ask whether the fact-finder, in rendering an acquittal 

in a prior proceeding, “could have grounded its verdict upon an 

issue other than that which the defendant seeks to foreclose from 

consideration.” [Commonwealth v.] Smith, 540 A.2d[, 246,] at 

251 [(Pa. 1988)]. If the verdict must have been based on 

resolution of an issue in a manner favorable to the defendant with 

respect to a remaining charge, the Commonwealth is precluded 

from attempting to relitigate that issue in an effort to resolve it in 

a contrary way. See Commonwealth v. Zimmerman, 445 A.2d 

92, 96 (Pa. 1981) (acquittal on simple assault precluded retrial on 
J-S35011-19

- 8 -

[deadlocked] murder charges because simple assault was a 

constituent element of all grades of homicide in the case); 

Commonwealth v. Wallace, 602 A.2d 345, 349–350 (Pa. Super. 

1992) (Commonwealth's concession that the jury's acquittal 

meant appellant did not possess a gun collaterally estopped 

Commonwealth from any subsequent prosecution based on 

appellant's possession of a gun); Commonwealth v. Klinger, 

398 A.2d 1036, 1041 (Pa. Super. 1979) (appellant's acquittal on 

murder precluded the Commonwealth from bringing a subsequent 

perjury prosecution based on appellant's trial testimony that he 

did not kill the victim), aff'd. sub nom. Commonwealth v. Hude, 

425 A.2d 313 (Pa. 1980). Conversely, where an acquittal cannot 

be definitively interpreted as resolving an issue in favor of the 

defendant with respect to a remaining charge, the Commonwealth 

is free to commence with trial as it wishes. See [Commonwealth 

v.] Buffington, 828 A.2d [1024, ]at 1033 [(Pa. 2003)](acquittal 

of rape and IDSI did not establish that Commonwealth failed to 

prove an essential element of sexual assault); Smith, 540 A.2d 

at 253–254 (acquittal of gun possession charge did not collaterally 

estop Commonwealth from proceeding on charges of murder and 

possession of an instrument of crime, as acquittal could have been 

based on any number of reasons); Commonwealth v. Harris, 

582 A.2d 1319, 1323 (Pa. Super. 1990) (robbery acquittal did not 

preclude retrial on [deadlocked] charge of aggravated assault), 

appeal denied, 597 A.2d 1151 (Pa. 1991).

Commonwealth v. States, 938 A.2d 1016, 1021–1022 (Pa. 2007). 

The States Court ultimately concluded:

There existed a final order definitively establishing that States

was not the driver of the car and a scheduled retrial at which 

the Commonwealth planned to offer evidence to establish that 

States was the driver of the car. The fact that a retrial required 

the Commonwealth to present evidence on this issue, to urge a 

second jury to reach a result contrary to the result previously 

reached by another fact finder, [...] converts it into a classic 

collateral estoppel matter.

Id. at 1026–1027 (emphasis in original). Accordingly, the States Court 

barred the Commonwealth from retrying States on the basis of collateral 

estoppel and double jeopardy.
J-S35011-19

- 9 -

We further note that States examined our Supreme Court’s prior 

decision in Smith. The Smith decision provides additional guidance regarding 

whether an acquittal may or may not be definitively interpreted as resolving 

an issue in favor of the defendant with respect to unresolved or newly raised

charges. Smith was charged originally with first-degree murder and 

possessing an instrument of crime, as well as firearms not to be carried 

without a license and carrying a firearm on public streets in Philadelphia. After 

a first trial, Smith was acquitted of the firearms violations, but the jury 

deadlocked on murder and possessing an instrument of crime. The 

Commonwealth issued notice of its intent to reprosecute and Smith appealed, 

raising double jeopardy and collateral estoppel. Our Supreme Court 

determined that Smith’s acquittals on the charges of firearms violations did 

not bar the Commonwealth’s subsequent prosecution for murder and 

possessing an instrument of crime. Our Supreme Court noted that the 

charged firearms offenses prohibited a defendant from carrying a firearm 

without a license or on public streets in Philadelphia, but the Commonwealth’s 

failure to prove those crimes did not necessarily determine whether Appellant 

was in physical possession of a firearm. See Smith, 540 A.2d at 253-254. 

Stated differently, the Smith Court found that the Commonwealth failed to 

prove that Smith lacked a firearm license or was on public property when 

arrested. The jury, however, did not make a definitive ruling regarding 

possession of the firearm used in the shooting. Thus, the Commonwealth was 
J-S35011-19

- 10 -

permitted to reprosecute Smith for murder and possessing an instrument of 

crime. 

In determining the applicability of the principle of collateral estoppel, 

the Smith Court explained that a court must

examine the record of a prior proceeding, taking into account the 

pleadings, evidence, charge, and other relevant matter, and 

conclude whether a rational jury could have grounded its verdict 

upon an issue other than that which the defendant seeks to 

foreclose from consideration. In determining whether a rational 

jury could have grounded its verdict upon an issue other than that 

which is sought to be foreclosed [our Supreme Court has] 

cautioned that the inquiry must be set in a practical frame and 

viewed with any eye to all the circumstances.

Smith, 540 A.2d at 251 (internal citations and quotations omitted). Collateral 

estoppel “is a principle to be applied with realism and rationality, not with the 

hypertechnical and archaic approach of a 19th century pleading book.”3 Id.

(internal citations and quotations omitted). 

____________________________________________

3

 We briefly respond to the dissent’s suggestion that in applying “realism and 

rationality” to this case one cannot ignore “the plain and obvious fact that it 

would have been impossible for Appellant to have possessed the heroin inside 

the glassine packets if he did not possess the glassine packets.” Dissenting 

Memorandum at 6. In contrast to the dissent’s view, we read the phrase 

“realism and rationality” (when used as a legal test to gage the preclusive 

scope of a prior acquittal) with reference to the facts of the Smith case, from 

which the phrase emerged as set forth at length above. The principal that 

emerges from Smith is that, in the absence of a definitive ruling negating 

possession of a firearm, the concept of collateral estoppel did not preclude a 

subsequent prosecution for murder and possessing an instrument of crime. 

Whatever may be said about the logical relationship between the contents and 

their container in this matter, there is no legal requirement to prove 

possession of a container in order to prove unlawful possession of its contents. 

In other words, as in Smith, where acquittal of certain firearms charges did 
J-S35011-19

- 11 -

In this case, the trial court denied Appellant relief on his double jeopardy 

claim for the following reasons:

Here, [] Appellant, relying on the principles in States, supra, 

presents an argument implicating double jeopardy, asserting that 

the Commonwealth can neither try him for the first time [for] 

[c]riminal [c]onspiracy [], nor re-try him on charges of 

[possession of a controlled substance] and [PWID], because the 

previous jury acquitted him of the charge of [p]ossession of [d]rug 

[p]araphernalia []. In other words, Appellant claims he cannot be 

tried for possessing the substance contained within the 

paraphernalia because he has already been acquitted of 

possessing that same paraphernalia. [The trial court] disagreed 

with Appellant’s position. 

In States, the fact finder explicitly determined that the 

Commonwealth failed to prove [States] was the driver of the 

vehicle in question, directly implicating a necessary element of the 

charge of [h]omicide by [v]ehicle. Since [subsequent prosecution 

of States could only succeed if the Commonwealth also 

established that States] was the driver, collateral estoppel 

precluded re-trial. 

However, the facts of the present matter differ markedly from 

those in States. Here, [] Appellant was pulled over for a motor 

vehicle code violation, a search ensued, and law enforcement 

discovered large quantities of heroin and various items of 

____________________________________________

not preclude subsequent prosecution for possessing an instrument of crime 

and murder, an acquittal on the paraphernalia charges in this case is not a 

legal impediment to prosecution for unlawful possession of the contraband. 

States confirms this understanding of the operation of collateral estoppel in 

the context of double jeopardy. This decision is unlike States wherein the 

court definitively determined that States was not driving the car at the time 

of the accident to bar reprosecution of involuntary manslaughter, homicide by 

vehicle and driving under the influence of alcohol. Here, as discussed, the 

jury’s acquittal of possession of paraphernalia cannot be read as a definitive 

finding, especially in light of deadlocking on the narcotics charges. 

Implementing realism and rationality to this case begs the converse question

Appellant and the dissent pose -- if the jury definitively determined that 

Appellant did not possess the paraphernalia, then why did it not also 

definitively find that Appellant did not possess the narcotics found inside those 

glassine packets?
J-S35011-19

- 12 -

paraphernalia, including glassine packets, packaging materials, a 

glass pipe, and cigars. The jury in this matter found that [] 

Appellant did not possess [drug paraphernalia]. This finding was 

not specific in concluding that [] Appellant did not possess the 

heroin contained within the glassine packets. Further, unlike in 

States, possession of the glassine packets here is not an element 

of the charges to be re-tried.

Based on this analysis, [the trial court] found that Appellant’s 

acquittal of [possession of drug paraphernalia] did not represent 

an ultimate fact (with regard to the charges to be re-tried) 

determined by a valid and final judgment, that the doctrine of 

double jeopardy did not preclude re-trial of the charges noted 

herein, and [] denied his [m]otion [to dismiss].

Trial Court Opinion, 6/26/2018, at 4-5. 

Further, in an opinion accompanying the order denying Appellant’s 

motion to dismiss, the trial court concluded:

Our appellate courts have also stated, with respect to claims of 

double jeopardy, that inconsistent verdicts are permissible in our 

Commonwealth. There may have been various reasons why the 

jury concluded that [Appellant] did not possess the items of 

paraphernalia herein, including the glassine packets, while 

deadlocking on the possession of controlled substance charges. 

[...] The paraphernalia charge in this case also involved items 

unrelated to the heroin, including the pipe, cigars and packaging 

material.

Trial Court Order and Opinion, 3/23/2018, at *5 (unpaginated) (internal 

citations omitted).

For this latter proposition, the trial court relied upon States, as well as 

this Court’s decision in Commonwealth v. DeLong, 879 A.2d 234 (Pa. 

Super. 2005). In DeLong,

4 a jury convicted DeLong of PWID and delivery of 

____________________________________________

4 Appellant does not challenge the trial court’s reliance upon DeLong on 

appeal. 
J-S35011-19

- 13 -

narcotics, but acquitted him of simple possession. The convictions were set 

aside, however, due to jury misconduct. The Commonwealth sought to re-try 

DeLong for PWID and delivery. DeLong moved to dismiss, arguing that his 

acquittal for the lesser-included offense of simple possession barred a second 

prosecution of the greater inclusive offenses of PWID and delivery, even if the 

jury convicted him of those offenses at the first trial. The DeLong Court 

rejected this argument, finding:

Consistency in verdicts in criminal cases is not necessary. When 

an acquittal on one count in an indictment is inconsistent with a 

conviction on a second count, the court looks upon the acquittal 

as no more than the jury's assumption of a power which they had 

no right to exercise, but to which they were disposed through 

lenity. The rule that inconsistent verdicts do not constitute 

reversible error applies even where the acquitted offense is a 

lesser included offense of the charge for which a defendant is 

found guilty.

Read in this light, the jury's decision to acquit [DeLong] of the 

simple possession charge but convict on PWID and [d]elivery 

charges is understood as an act of lenity in a case where the 

evidence focused, in any event, predominantly on [DeLong’s] act 

of delivery during a controlled buy of methamphetamine. The 

inconsistent verdict, therefore, does not imply error, mistake, or 

inability to agree as to the two greater inclusive offenses.

Nor is there, therefore, a double jeopardy [or] estoppel [] problem 

with a second prosecution of the greater inclusive offenses in this 

case. Though conceptual and practical differences exist with each 

principle, they share the purpose of barring retrial for the same 

offense.

Commonwealth v. DeLong, 879 A.2d 234 at 238 (case citation omitted).

Finally, our Supreme Court has stated:

Federal and Pennsylvania courts alike have long recognized that 

jury acquittals may not be interpreted as specific factual findings 

with regard to the evidence, as an acquittal does not definitively 
J-S35011-19

- 14 -

establish that the jury was not convinced of a defendant's guilt. 

Rather, it has been the understanding of federal courts as well as 

the courts of this Commonwealth that an acquittal may merely 

show lenity on the jury's behalf, or that the verdict may have been 

the result of compromise, or of a mistake on the part of the jury. 

Accordingly, the United States Supreme Court has instructed that 

courts may not make factual findings regarding jury acquittals[.]

Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014) (citations 

omitted). 

Taking all of the foregoing together, we agree with the trial court’s 

determinations. First, we cannot interpret Appellant’s acquittal for drug 

paraphernalia as a specific factual finding by the jury. Appellant interprets 

the jury’s acquittal of his paraphernalia charge as a finding that he was not in 

possession of paraphernalia. However, the jury may have grounded its 

decision5 upon a finding that the Commonwealth failed to prove that the 

glassine packets were items of paraphernalia as statutorily defined.6

____________________________________________

5

 We note that we do not have a full record of the proceedings. The certified 

record only contains a transcript of Appellant’s testimony from trial and a 

transcript of the hearing on Appellant’s motion to dismiss. There are no 

additional trial transcripts for us to review. Thus, we were not able to discern 

what evidence was presented at Appellant’s first trial or what instructions 

and/or legal definitions the trial court provided to the jury prior to its 

deliberations. 

6 Possession of paraphernalia is defined as:

The use of, or possession with intent to use, drug paraphernalia 

for the purpose of planting, propagating, cultivating, growing, 

harvesting, manufacturing, compounding, converting, producing, 

processing, preparing, testing, analyzing, packing, repacking, 

storing, containing, concealing, injecting, ingesting, inhaling or 
J-S35011-19

- 15 -

Moreover, the acquittal may merely show lenity on the jury's behalf, or the 

result of compromise, or of a mistake on the part of the jury.

7

 Additionally, 

____________________________________________

otherwise introducing into the human body a controlled substance 

in violation of this act.

35 P.S. § 780-113(a)(32).

 

7

 We note the following. The Commonwealth filed a bill of criminal 

information against Appellant on June 29, 2015 alleging, at Count IV, that 

Appellant

use[d] or possess[ed] with intent to use, drug paraphernalia, to 

wit, glassine packets, packaging material, a glass pipe and 

cigars, items used for the purpose of planting, propagating, 

cultivating, growing, harvesting, manufacturing, compounding, 

converting, producing, processing, preparing, testing, analyzing, 

packing, repacking, storing, containing, concealing, injecting, 

ingesting, inhaling, or otherwise introducing into the human body, 

a controlled substance.

Bill of Criminal Information, 6/29/2015, at *2 (emphasis supplied). The 

Commonwealth also advised Appellant that it intended to try him and 

Robinson together in a joint trial. However, as Appellant notes, “[a]fter jury 

selection but before opening statements began, [] Robinson[,] Appellant’s 

alleged co-defendant, pleaded guilty to possession of marijuana and 

paraphernalia which was found in her purse” and “the Commonwealth 

dismissed Count II of the [i]nformation which charged Appellant with 

[c]onspiracy to possess heroin with intent to deliver.” Appellant’s Brief at 11. 

The Commonwealth, however, did not amend the criminal information filed 

against Appellant with regard to the paraphernalia recovered. As such, the 

Commonwealth, via Count IV of the information, continued to charge 

Appellant with possession of all the paraphernalia police recovered, i.e., 

glassine packets, packaging material, a glass pipe and cigars. The verdict slip, 

which is contained in the certified record, listed individually each of the 

recovered items of paraphernalia (i.e., glassine packets, packaging material, 

a glass pipe and cigars). The verdict slip asked the jury that, if it found 

Appellant guilty of possessing paraphernalia, to identify which paraphernalia 

items it found Appellant to have possessed. When the jury found Appellant 

not guilty of possessing paraphernalia, it obviously did not identify items of 
J-S35011-19

- 16 -

here, the jury did not definitively determine whether Appellant was in 

possession of the recovered heroin. In a subsequent prosecution, the 

Commonwealth simply does not have to prove that Appellant was in 

possession of paraphernalia in order to prove that Appellant was in simple 

possession of heroin or that he possessed the drugs with the intent to deliver 

them.

8

 Thus, collateral estoppel does not apply. Based upon our standard of 

review and the record before us, we discern no abuse of discretion or trial 

court error in denying Appellant relief on his double jeopardy claim.

 

____________________________________________

paraphernalia on the verdict slip. Based on the foregoing, we conclude that 

the Commonwealth’s single paraphernalia charge, despite the recovery of 

multiple items, was carelessly confusing, as some of the recovered items are 

used typically to facilitate personal consumption of marijuana (i.e., pipe and 

cigars) while the glassine packets at issue are used specifically for packaging 

and storing narcotics. As such, we conclude the jury’s acquittal on the 

paraphernalia charge certainly could have been the result of lenity, 

compromise, or mistake. A rational, but confused, jury could have grounded 

its verdict by focusing on the lack of evidence regarding the other items seized 

from Robinson’s purse – the cigars and glass pipe – to conclude that Appellant 

was not in possession of any paraphernalia. 

8

 In a subsequent prosecution for simple possession and PWID, the 

Commonwealth could seek to prove the crimes without evidence of glassine 

packets and/or packaging materials. The intent to deliver may be inferred 

from the possession of a large quantity of a controlled substance, the 

defendant’s behavior in the presence of police, and sums of cash found in 

possession of the defendant. See Commonwealth v. Roberts, 133 A.3d 

759, 768 (Pa. Super. 2016). Expert opinion testimony is also admissible 

concerning whether the facts surrounding the possession of controlled 

substances are consistent with an intent to deliver. Id. 
J-S35011-19

- 17 -

Order affirmed.

Judge Stabile joins the memorandum.

Judge Strassburger files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/20