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

Appellant

v.

JOHN COPES : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1275 EDA 2022 Appeal from the Order Entered April 19, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0005914

- 2021

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J. MEMORANDUM BY PANELLA, P.J.: FILED MAY 10, 2023 The Commonwealth appeals the Philadelphia Common Pleas Court order granting John Copes’ s motion to dismiss for the Commonwealth’s failure to consolidate prosecutions under Pennsylvania’s compulsory joinder rule, 18 Pa.C.S.A. § 110 . The Commonwealth argues that compulsory joinder does not apply because Copes’ s unlawful possession of a firearm charges did not arise from the same criminal conduct or episode as the previous prosecution for simple assault. We agree and hereby reverse . For purposes of this appeal, the following factual and procedural history
is un disputed. 1 On Sunday, June 13, 2021, at approximately 7:30 p . m . , Copes punched Darryl Marcellus near Route 20 at the Frankford Transportation

_________________ __________ ______ ____ _______ 1 The Appellee, John Copes, did not submit a brief to the court.J

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Center. The incident was reported to SEPTA transit officers and d etectives were given Copes’ s description and re viewed surveillance video from the station. Approximately an hour later, around 8:30pm, near Route 24, police officers recognized Copes from the description and video and attempted to make an arrest. As the officers approached, Copes fled and threw a backp ack containing a firearm on top of a nearby building.
At trial court docket MC

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- 2021 (“the assault charges”) , the Commonwealth charged Copes with s imple a ssault and recklessly endangering another person for striking Marcellus. On a separate d ocket, CP

51

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- 2021 (“the firearm charges”) , the Commonwealth filed three charges of unlawful possession of a firearm based on the gun he threw away while evading police: (1) possessing a firearm while prohibited from doing so as a previously convicted felon; (2) possessing a firearm without a license; and (3) possessing a firearm on streets or public property in Philadelphia. Co pes pled guilty to simple assault to resolve the assault charges . Then, Copes filed a motion to dismiss the firearm charges , arguing s ection 110 barred prosecution of the firearm charges after Copes had already been convicted of the assault offense. After a hearing, the trial court grant ed the motion, thereby prohibiting the Commonwealth from prosecuting the firearms offense. The Commonwealth now appeals. “Where the relevant facts are undisputed, the question of whether prosecution is barred by the compulso ry joinder rule ... is subject to plenaryJ

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and de novo review.” Commonwealth v. Brown , 212 A.3d 1076 , 1082 (Pa. Super. 2019) (citation omitted). Section 110 of the Crimes Code generally prohibits subsequent prosecution a defendant for different crimes arising from the same criminal episode after the defendant has already been convicted or acquitted o f criminal charges arising from that criminal episode

. See 18 Pa.C.S. § 110. T he Pennsylvania Supreme Court h as set forth the four

- part test to deter mine when section 110 bars a subsequent prosecution: (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. Commonwealth v. Fithian , 961 A.2d 66, 72 (Pa. 2008) Here, the Commonwealth only disputes the second element : whether the firearm offenses were based on the same conduct or arose from the same criminal episode as the assault crime for which Copes had already pled guilty

. “To determine whet her various acts constitute a single criminal episode, a court must consider the logical relationship and the temporal relationship between the acts.” Commonwealth v. Spotz , 759 A.2d 1280, 1285 (Pa. 2000) (citations omitted). Courts have recognized that al though theJ

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relationship between the timing of actions is often determinative, “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 con sidered.” Commonwealth v. Reid , 77 A.3d 579, 582 (Pa. 2013) (citation omitted). Offenses are logically related when “there is a substantial duplication of factual, and/or legal issues presented by the offenses. " Id. (citation omitted). Whether there is substantial duplication of fact and law “ depends ultimately on how and what the Commonwealth must prove in the subsequent prosecution.” Id. at 585. For example, there would be substantial duplication

“ if the Commonwealth's case rests sole ly upon the credibility of one witness in both prosecutions" and there would not be substantial duplication if proof requires “ the introduction of the testimony of completely different police officers and expert witnesses as well as the establishment of se parate chains of custody.” Id. (citations omitted.) Here, the Commonwealth argues that there was not a substantial duplication of law and fact. As to the law, the assault charges, simple assault and reckless endangerment, do not require the prosecution to prove any of the same legal elements as the firearms charges. In its opinion, the trial court explicitly acknowledges there is no duplication of law: “Although the elements of simple assault and the gun charges are different, the gun charge stemsJ

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from fact s and circumstances surrounding the assault.” Trial Court Opinion, 9/14/2022, at 4. Instead, the trial court’s decision relies on the finding that the charges arose from the same criminal episode. The trial court reasons the criminal acts are temporally and logically related because the gun was discarded and discovered while Copes was being arrested for the assault charges

. Id. The Commonwealth argues on appeal that pursuant to Brown the trial
court ’s reasoning constitutes legal error. W e agree . In Brown , the defendant drove around a blockade erected to protect emergency personnel responding to a fire. The fire police officer operating the blockade reported Brown’s actions to the local police, who responded to Brown’s home. While the police informed Brown of the charges against him, Brown began to walk away. The police told Brown he was not free to leave, and a struggle ensue d, with Brown punching one officer in the chest. Brown was charged with two summary offense s for driving around the blockade. Se e Brown , 212 A.3d at 1079. A mag isterial district judge convicted Brown of both charges , but this result was overturned on appeal to the Court of Common Pleas

. See id. Brown was also charged with assaulting the police officer who responded to Brown’s home. See id. Prior to trial, Brown moved to dismiss the assault charge pursuant to the compulsory joinder rule. See id. at 1080. The trial court denied Brown’s motion , finding that any duplication of factual issues orJ

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evidence was “ de minim i s and insufficient to establish a logical relationship between the charges.” Id. at 1803 (citation to the record and internal quotation marks omitted). The Brown panel adopted the trial court’s reasoning and affirmed Brown’s conviction. See id. Here, a lthough the one - hour separation between Copes’s criminal acts could suggest a temporal relationship between the conduct, a closer review indicates there was not a lo gical relationship between the acts. First, Marcellus never alleged, and the Commonwealth offers no evidence to suggest, that Copes used or possessed the firearm while committing the earlier assault. In fact, Copes sought, and received, a reduction in bai l because “ [t] he gun was not used in any alleged crime.” Petition For Reduction of Bail Amount, 10/26/2021, at 1. Moreover, there is little, if any, duplication in the witnesses or evidence necessary to support the respective convictions. For the assault charge s , the likely key witness would be the victim, Marcellus. However, Marcellus’ s testimony would be irrelevant to the firearms charges. On the other hand, the key witnesses for the firearm charges would likely be the police officers that
witnes sed Copes throwing away the backpack containing the firearm. Similarly, the surveillance video of the assault would likely be pertinent evidence to support or refute the assault charges, but the footage does not present evidence relevant to the firearm cha rges. See N.T., 4/19/2022, at 9.
As in Brown , any duplication of evidence would be de minim i s and inadequateJ

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to establish the charges were logically related. Therefore, we conclude the trial court erred in granting Copes’ s motion to dismiss pursuant to the compulsory joinder rule

. Order reversed . Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/10/2 023