Commonwealth v. Tisdale

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 sentence imposed

on him on March 4, 2013, following his conviction on the charge of

1

possession of a controlled substance Following

a non-jury trial, Tisdale was acquitted of the charge of possession with intent

2

improperly convicted of possession and should have been convicted of

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

4

rev 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 charge of possession of a small

amount of marijuana and for imposition of a new sentence.5

We adopt the facts of this matter as related by the trial court in its

Pa.R.A.P. 1925(a) Opinion.

On October 18, 2012, at approximately 12:15 p.m., Officer

Robinson and his partner were in an unmarked vehicle

conducting a surveillance for the sale of illegal narcotics near the

600 block of South 56th Street in the City of Philadelphia. The

officer observed Tisdale and another male, later identified as

Raheem, standing on the southwest corner of 56th Street and

Walton Street as an unknown black female approached the

corner of 56th 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 amount of

U.S. currency. The female began to walk toward the two males

whereupon a marked police vehicle came traveling westbound on

Catherine Street. The female immediately put the money 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 stated no further extension

would be granted. The Commonwealth did not file its brief until June 16,

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 charge. There are

no orders in the certified record indicating the disposition of that charge.

The docket indicates that Tisdale was found not guilty of 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.

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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 reach into

his pocket and pull out a clear baggie containing several items

believed to be marijuana.

The two males continued onto Walton Street, at which point

Raheem removed a clear baggie from his pants pocket and

handed it to Tisdale. Tisdale placed the baggie inside of a white

plastic bag that had already been positioned on the porch of

5545 Walton Street. The two men then proceeded to walk down

56th Street. Police then went to the porch and recovered twelve

(12) yellow packets, each containing 0.72 grams of marijuana,

from within the clear baggie that had been placed inside of the

white plastic bag. Police apprehended the two males and

recovered $20 USD from Tisdale and $49 USD from Raheem.

Trial Court Opinion, 10/04/2013, at 2-3.

Procedurally, we note that Tisdale was convicted of PWID and

conspiracy at a Municipal Court trial held on December 7, 2012. At that

time, 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 deliver. 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 drugs involved was

under 30 grams of marijuana, the court was obligated to find Tisdale guilty

of SAM. The trial court rejected that argument and opined that because

Tisdale was never charged with SAM, Gordon was inapplicable. This appeal

followed.

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The instant case presents a unique combination of two principles of

law: the specific/general rule and lesser included offenses.6 The

specific/general rule was first announced in Commonwealth v. Brown, 29

prosecutions under the general provisions of the penal code when there are

Id. at 796-97. Further,

[t]his same policy remains in force nearly sixty years later and

continues to prevent the Commonwealth for pursuing general

criminal charges against an individual whose conduct was

constitutes the exclusive legal authority: for prosecution 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 was convicted

under the general offense found at subsection (16). Gordon stated, in

relevant part,

[i]n our view, the General Assembly, by including subsection

(31) in section 780-113 of the proscribed conduct of the Act,

wisely set out the specific crime of possession of a small amount

of marijuana, and created a graduated system of penalties that

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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.

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J-S21034-14

imposes far heavier punishment for traffickers and lesser

sanctions for casual users of marijuana.

...

As a result, the conviction under the general proscription

contained in subsection (16) of section 780-113 of the Controlled

Substance, Drug, Device and Cosmetic Act must be vacated, and

the case remanded to the trial court for the entry of a verdict on

the charge of possession of a small amount of marijuana as

stated in subsection (31) of the Act.

Commonwealth v. Gordon, 897 A.2d at 509-10.

The recognition of the legislative intent to provide 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 be

prosecuted under at least three sections. Possession of a large

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 deliver,

the offense is a misdemeanor punishable by up to a year

imprisonment and/or a fine of $5,000. If the jury finds 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 section

780-113(a)(30) and section 780-113(a)(16), the critical issue for

the jury to decide is the question of intent. As between 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).

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In light of the foregoing case law, it is apparent that where both

subsection (16) and (31) apply, conviction properly rests on the specific

charge found at subsection (31), SAM.

The application of Gordon

concern that Tisdale was not charged with violating subsection (16). To

address this concern, we must look to the application of rules regarding

lesser included offenses.

The trial court correctly noted that Tisdale was not charged 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 appeals to

the Court of Common Pleas of Allegheny County, the cases have

not

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

been heard before and as if no decision had been previously

Dissenting and Concurring Opinion).

Commownealth v. Krut, 457 A.2d 114, 116 (Pa. Super. 1983).

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Tisdale guilty of possession. Therefore, distinguishing Gordon on the fact

that Tisdale was not formally charged with SAM is unavailing.

The fact that Tisdale was not formally charged with either 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 included the

offense of mere possession. Every element of possession is

included within the crime of possession with intent to deliver.

The only element which distinguishes the latter from the former

is the manufacture, delivery, or an intent to manufacture or

deliver. Similarly, possession of a small quantity of

marijuana for personal use would necessarily be included

within the crime of possession with intent to deliver. The

issue, therefore, is whether the evidence at trial would possibly

support both a conviction of the lesser offense of possession of a

small quantity for personal use and an acquittal of possession 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 included offenses

to PWID, we examine how a defendant is charged with a lesser included

offense.

This end has been frequently achieved by the Commonwealth in

one of two ways, namely: (1) they have expressly put the

lly charging him with the less

uncharged, crime is a lesser included offense of the charged, but

unproven, offense as a matter of law.

Commonwealth v. Gouse, 429 A.2d 1129, 1132 (Pa. Super. 1981)

(citation omitted).

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Here, when Tisdale was formally charged with PWID only, he was

implicitly charged with the lesser included offenses of possession and SAM.

Because Tisdale was implicitly charged with the lesser included offenses, he

could be convicted of either of the lesser included offenses, subject to any

other applicable principles of law and evidence.

Instantly, as demonstrated above, the general/specific principle

governs the application of possession and SAM. The evidence, as stipulated

at trial, was that the total amount of marijuana involved was 8.64 grams.8

See N.T., Trial, 3/4/2013, at 30-31. Pursuant to subsection (31), 30 grams

of marijuana or less shall be considered a small amount of marijuana.

Accordingly, because Tisdale was implicitly charged with both possession and

SAM, and the stipulated evidence clearly supports the specific 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 reason to draw a

distinction between being formally charged with possession 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 in such

situations.

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8

The 12 packets of marijuana, each weighing 0.72 grams, equaled 8.64

grams.

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In light of the foregoing, we vacate judgment of sentence for

possession of marijuana and remand to the trial court for entry of a guilty

verdict on the charge of possession of a small amount of marijuana 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 consistent with this decision.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/27/2014

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