The opinion
J-S10015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOHN COPES : 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 undisputed.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-S10015-23
Center. The incident was reported to SEPTA transit officers and detectives
were given Copes’s description and reviewed 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 backpack
containing a firearm on top of a nearby building.
At trial court docket MC-51-CR-001474-2021 (“the assault charges”),
the Commonwealth charged Copes with simple assault and recklessly
endangering another person for striking Marcellus. On a separate docket, CP-
51-CR-0005914-2021 (“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.
Copes pled guilty to simple assault to resolve the assault charges. Then,
Copes filed a motion to dismiss the firearm charges, arguing section 110
barred prosecution of the firearm charges after Copes had already been
convicted of the assault offense. After a hearing, the trial court granted 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 compulsory joinder rule … is subject to plenary
-2-
J-S10015-23
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 of
criminal charges arising from that criminal episode. See 18 Pa.C.S. § 110. The
Pennsylvania Supreme Court has set forth the four-part test to determine
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 whether 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 although the
-3-
J-S10015-23
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 considered.” 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 solely 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 separate 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 stems
-4-
J-S10015-23
from facts 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. We 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 ensued, with Brown punching
one officer in the chest.
Brown was charged with two summary offenses for driving around the
blockade. See Brown, 212 A.3d at 1079. A magisterial 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 or
-5-
J-S10015-23
evidence was “de minimis 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, although 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 logical 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 bail 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 charges, 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
witnessed 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 charges. See N.T., 4/19/2022, at 9.
As in Brown, any duplication of evidence would be de minimis and inadequate
-6-
J-S10015-23
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: 5/10/2023
-7-