J-S05028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DAVID W. DANIELS, JR.,
Appellant No. 603 MDA 2015
Appeal from the Order Entered February 25, 2015 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000811-2014
BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 07, 2016
Appellant, David W. Daniels, Jr., appeals from the order entered
February 25, 2015, denying his motion to dismiss pursuant to 18 Pa.C.S. §
110.1 After careful review, we reverse.
The record reflects the following facts. State Police narcotics officers
arranged for a heroin purchase to occur on September 17, 2014, between ____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 We note that the order denying Appellant’s motion to dismiss is not a final order. However, because 18 Pa.C.S. § 110 statutorily “embodies the same basic purposes as those underlying the double jeopardy clauses, the interlocutory appealability of double jeopardy claims has been applied to claims based on Section 110.” Commonwealth v. Bracalielly, 658 A.2d 755, 759-760 (Pa. 1995). Therefore, we may properly consider this appeal. Commonwealth v. M.D.P., 831 A.2d 714, 717 n.1 (Pa. Super. 2003). J-S05028-16
Appellant and a confidential informant (“CI”). In anticipation of the pre-
arranged buy, state troopers contacted officers from the Towanda Borough
Police Department. Troopers advised Towanda Borough officers of the pre-
arranged buy involving Appellant and informed Towanda Borough officers
that Appellant would be operating a vehicle with a suspended license. State
troopers requested that Towanda Borough officers stop Appellant following
the pre-arranged buy, purportedly on the basis of the driving-under-
suspension violation.
Following the pre-arranged heroin buy, a trooper followed Appellant to
a local mini market and called the Towanda Borough officers to advise them
of Appellant’s location. Towanda Borough officers proceeded to Appellant’s
location and stopped Appellant. Appellant was charged with driving under
suspension DUI-related, possession of a controlled substance, possession of
drug paraphernalia, and required financial responsibility. A preliminary
hearing on these charges was held on September 24, 2014. A plea was
negotiated in which Appellant pled guilty to possession of drug paraphernalia
and driving under suspension; the remaining charges were dismissed.
Pursuant to the plea agreement, Appellant was sentenced on September 24,
2014, to sixty days of incarceration.
Approximately one month later, on October 21, 2014, Trooper Michael
Adams filed a complaint charging Appellant with delivery of a controlled
substance, criminal use of a communication facility, and driving under
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suspension DUI-related based on the events of September 17, 2014.
Appellant filed a motion to dismiss pursuant to 18 Pa.C.S. § 110. A hearing
was held on January 23, 2015. Following the hearing, the trial court denied
Appellant’s motion. This timely appeal followed.2
Appellant presents the following issues for our review:
I. Whether the compulsory joinder rule prohibits the instant prosecution?
A. Was the instant offense part of the same criminal episode as the offense to which [Appellant] previously entered a plea of guilty?
B. Was the appropriate prosecuting officer aware of the instant charges at the time of resolution of the prior charges?
Appellant’s Brief at 4 (full capitalization omitted).
____________________________________________
2 The trial court issued an order on February 25, 2015, denying Appellant’s motion to dismiss. However, the docket indicates that the order was not mailed to counsel until March 25, 2015. The thirty-day appeal period begins when the clerk of courts mails or delivers copies of the order to the parties in all criminal cases, excluding the imposition of sentence without the filing of post-sentence motions. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule, the notice of appeal . . . shall be filed within 30 days after the entry of the order from which the appeal is taken”); Pa.R.A.P. 108(a)(1) (“the day of entry shall be the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties”); see also Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000) (“In a criminal case, the date of entry of an order is the date the clerk of courts enters the order on the docket, furnishes a copy of the order to the parties, and records the time and manner of notice on the docket”). Because the appeal was filed within thirty days of March 25, 2015, the date the order was mailed by the clerk of courts, the appeal is timely.
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We set forth our well-settled standard of review: “An appeal grounded
in double jeopardy raises a question of constitutional law. This [C]ourt’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….” Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa.
Super. 2008) (citations and quotations omitted); see also Commonwealth
v. Simmer, 814 A.2d 696, 698 (Pa. Super. 2002) (Our review is plenary
when the issue is whether the compulsory joinder rule, 18 Pa.C.S. § 110,
bars cases.)
“The compulsory joinder statute [18 Pa.C.S. § 110,] is a legislative
mandate that a subsequent prosecution for a violation of a provision of a
statute that is different from a former prosecution, or is based on different
facts, will be barred in certain circumstances.” Commonwealth v. Fithian,
961 A.2d 66, 71 (Pa. 2008). Section 110 provides, in relevant part:
§ 110. 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:
(i) any offense of which the defendant could have been convicted on the first prosecution;
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(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 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; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(B) the second offense was not consummated when the former trial began.
18 Pa.C.S. § 110.
As explained by our Supreme Court:
The compulsory joinder rule bars a subsequent prosecution if each prong of the following test is met: (1) the former prosecution resulted in an acquittal or conviction; (2) the current prosecution was based on the same criminal conduct or arose from the same criminal episode; (3) the prosecutor in the subsequent trial was aware of the charges before the first trial; and (4) all charges were within the same judicial district as the former prosecution.
Commonwealth v. Nolan, 855 A.2d 834, 839 (Pa. 2004) (footnote and
citations omitted).
Our Supreme Court has further stated:
[18 Pa.C.S. § 110] reflects Pennsylvania’s compulsory joinder rule, which is designed to protect a defendant’s double-jeopardy
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interests where the Commonwealth initially declines to prosecute him for the present offense, electing to proceed on different charges stemming from the same criminal episode.
Commonwealth v. Laird, 988 A.2d 618, 628 (Pa. 2010) (citations
omitted).
The purpose behind Section 110 is two-fold. “First, it protects a
defendant from the governmental harassment of being subjected to
successive trials for offenses stemming from the same criminal episode.
Secondly, the rule assures finality without unduly burdening the judicial
process by repetitious litigation.” Commonwealth v. Failor, 770 A.2d 310,
313 (Pa. 2001).
Here, the parties do not dispute that elements one and four of the
four-prong test set forth in Nolan are met. As noted, Appellant pled guilty
to charges related to the traffic stop by Towanda Borough officers. A guilty
plea constitutes a conviction for purposes of pursuing further prosecution
pursuant to 18 Pa.C.S. § 110. Commonwealth v. Bracalielly, 658 A.2d
755, 760 (Pa. 1995). Thus, the first element is satisfied. Additionally, the
current charges and the former charges are within the jurisdiction of a single
court as required by the fourth prong. Accordingly, we agree that elements
one and four have been met.
Appellant posits that the second and third elements are also met and
therefore, the compulsory joinder rule applies. Appellant first argues that a
single criminal episode exists in this case because the charges are logically
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and temporally related and share common issues of law and fact.
Appellant’s Brief at 11. Appellant contends that the charges are intertwined,
and the charges disposed of previously, as related to the stop by Towanda
Borough police, are a subset of the criminal episode as outlined in the
instant complaint. Id. at 11-12.
The seminal decision discussing the term “same criminal episode” is
Commonwealth v. Hude, 458 A.2d 177 (Pa. 1983). Our Supreme Court
summarized that holding as follows:
In Hude, the defendant (Hude) was arrested and charged with twenty counts of possession and delivery of marijuana and one count of corruption of a minor. These charges arose from a series of sales to the same individual which allegedly occurred between October 1974 and January 1975. After nine possession and delivery counts were dismissed, the Commonwealth brought Hude to trial on three of the remaining possession and delivery charges and the corruption of a minor charge. Hude was acquitted. The Commonwealth then brought Hude to trial on the remaining eight possession and delivery charges.
We held that these remaining eight charges arose from conduct which formed part of the same criminal episode as the conduct on which the initial three possession and delivery charges were based. Therefore, we concluded that the Section 110 barred the second attempt at prosecution and quashed the subsequent indictments. We reasoned:
[t]o interpret the “single criminal episode” test in such a manner as to permit successive trials for each of the alleged transactions would clearly be offensive to the prohibition against successive prosecutions as well as an unjustifiable expenditure of judicial resources. The interpretation of the term “single criminal episode” must not be approached from a hypertechnical and rigid perspective which defeats the purposes for which it was created. Thus, where a number of charges are logically and/or temporally
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related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of judicial resources. In such cases, failure to consolidate will bar successive prosecutions.
Hude [500 Pa.] at 494, 458 A.2d at 183.
Bracalielly, 658 A.2d at 761. “In Hude, both prosecutions contained a
substantial duplication of issues of fact and law, which not only forced a
defendant to ‘run the gauntlet’ repeated times and confront the ‘awesome
resources of the state’ successively, but also sanctioned ‘an unjustifiable
expenditure of judicial resources.’” Nolan, 855 A.2d at 839 (quoting Hude,
458 A.2d at 180, 183).
Thus, to determine whether various acts constitute a single criminal
episode warranting compulsory joinder, a court must consider two factors:
1) the logical relationship between the acts; and 2) the temporal relationship
between the acts. Commonwealth v. Spotz, 759 A.2d 1280, 1285 (Pa.
2000). 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. Commonwealth v. M.D.P., 831 A.2d 714, 718-719 (Pa. Super.
2003).
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.’
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***
The temporal relationship between criminal acts will be a factor which frequently determines whether the acts are ‘logically related.’ However, the definition of a ‘single criminal episode’ should not be limited to acts which are immediately connected in time.... ‘Transaction’ is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.
Commonwealth v. Hunter, 768 A.2d 1136, 1140-1141 (Pa. Super. 2001)
(quoting Hude, 458 A.2d at 182-183).
“[T]he inquiry as to whether a series of criminal acts constitutes a
single criminal episode is fact dependent.” Bracalielly, 658 A.2d at 757.
Furthermore, the single criminal episode analysis essentially considers the
totality of the circumstances. M.D.P., 831 A.2d at 719 n.3.
With the preceding tenets in mind, we consider the facts of the case
currently before us. Officer Ryan Edsell, a police officer with the Towanda
Borough Police Department, provided the following testimony at the hearing
on Appellant’s motion to dismiss:
[Commonwealth]: Calling your attention to September seventeen, twenty-fourteen, were you working that day?
[Officer Edsell]: Yes, sir.
[Commonwealth]: In uniform?
[Commonwealth]: In a marked vehicle?
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[Commonwealth]: And were you on patrol that day?
[Officer Edsell]: Yes.
[Commonwealth]: And at some point in time, did you receive some information regarding [Appellant]?
[Officer Edsell]: Yes, I was told that he would be in town. And – I was informed by Detective Ogden [from Towanda Borough Police Department] that he was to be in town, and that they, he and a [state] trooper were planning an operation with him.
[Commonwealth]: Okay, and at any point, did you go make an effort to find [Appellant]?
[Officer Edsell]: I patrolled the area that he was suspected to be in, knowing that he was not a licensed driver in the state of Pennsylvania.
[Commonwealth]: Okay, and did you find him in that area you were looking?
[Officer Edsell]: No, I found him in a separate area, uh, the Dandy [mini-mart] on Main Street.
[Commonwealth]: And how did you come to be around the Dandy?
[Officer Edsell]: I had not heard from Detective Ogden or Trooper Hutchison if they were successful in the buy, so I broke off and resumed patrol.
N.T., 1/23/15, at 2-3.
On cross-examination, Officer Edsell further explained the sequence of
events as follows:
[Appellant’s counsel]: Officer Edsell, the conversation that led you to be aware that [Appellant] would be present in Towanda Borough, that came to you from Trooper Ogden, or –
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[Officer Edsell]: It came to me from Officer Bellows who had heard it from Detective Ogden.
[Appellant’s counsel]: All right. And you were made aware that there was the possibility of a drug transaction with [Appellant] in the borough.
[Officer Edsell]: Yes, ma’am.
[Appellant’s Counsel]: And I’m assuming that they didn’t want you to stop him before he made that transaction, is that correct?
[Officer Edsell]: I would assume so. I didn’t know when the transaction was occurring exactly though.
[Appellant’s counsel]: And you knew obviously at [the time of the traffic stop] that the State Police had set up an informant buy from [Appellant]?
[Officer Edsell]: I knew they had attempted to, yes.
[Appellant’s counsel]: All right.
[Officer Edsell]: That they were trying to.
[Appellant’s counsel]: And this was within a few minutes of the time that this transaction was supposed to have taken place. Is that correct?
[Officer Edsell]: From the time that I was told the transaction was supposed to happen, - to the traffic stop, - it was more than thirty minutes.
[Appellant’s counsel]: And when – the traffic stop took place, you were particularly concerned about finding any controlled substances, is that correct?
[Officer Edsell]: Uh, yeah, that’s common to be searching for controlled substances.
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[Appellant’s counsel]: All right. And you knew already that day that there was some question about whether [Appellant] would be in town to sell drugs?
[Appellant’s counsel]: And in fact, when you, when you made the stop, is that when you called Officer Hennessey?
[Officer Edsell]: No, it was after the search, I had contacted Officer Hennessey. After I found other substances.
N.T., 1/23/15, at 7-8, 11-12.
Officer Edsell also explained that during the traffic stop, he seized
money from Appellant. N.T., 1/23/15, at 13. At the time of the preliminary
hearing on the charges related to the traffic stop, Appellant requested the
return of his money. Id. at 14. Officer Edsell advised Appellant that his
money would not be returned due to a state police investigation. Id. Officer
Edsell provided the following testimony regarding the seized money:
[Appellant’s Counsel]: And do you recall [Appellant] asking you whether he could have that money back?
[Appellant’s Counsel]: And you told him he couldn’t, is that correct?
[Officer Edsell]: I told him the State Police had an investigation or somethin’ on it. I don’t remember my exact words.
[Officer Edsell]: I said yes, at the time, he couldn’t, because due to an investigation.
[Appellant’s Counsel]: So at the time of the preliminary hearing, you knew that the money was related to the
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investigation of the traffic stop, of the sale of the controlled substance?
[Officer Edsell]: I assumed it was related, yes.
[Appellant’s Counsel]: And in fact, when you seized it, you assumed that it was related to that transaction, is that correct?
[Officer Edsell]: Possibly. I didn’t know if the transaction had occurred or not, though. So I don’t –
[Appellant’s Counsel]: But when you –
[Officer Edsell]: I wasn’t a hundred percent sure, ma’am.
[Appellant’s Counsel]: But when you saw three hundred and eighty dollars, it certainly made you suspicious –
[Officer Edsell]: - it’s safe to assume that, yes.
[Appellant’s Cousnel]: Thank you. Had you, after seizing that money, you told the State Police that you’d seized it, is that correct?
[Officer Edsell]: Uh, I think they had contacted me and asked me if I had recovered any money.
[Appellant’s Counsel]: And that was prior to the preliminary hearing on September twenty-four?
[Appellant’s Counsel]: And they told you not to release it, is that correct?
[Officer Edsell]: Correct. They either, custody was transferred, or we didn’t release it. I’m not sure, I’m not the evidence custodian. But, yes.
N.T., 1/23/15, at 14-15.
Pennsylvania State Police Trooper Michael R. Adams also testified at
the hearing. N.T., 1/23/15, at 16. Trooper Adams testified that in his
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capacity as a narcotics officer, he conducted an investigation involving
Appellant on September 17, 2014. Id. Trooper Adams provided the
following testimony regarding the arranged heroin purchase involving
Appellant:
[Commonwealth]: Now, what was the nature of the investigation on September seventeenth?
[Trooper Adams]: It was involving a Heroin purchase.
[Commonwealth]: And was that through an undercover trooper or – a confidential informant? Or –
[Trooper Adams]: It was through a confidential informant.
[Commonwealth]: Okay. And was Towanda Borough Police involved in that transaction?
[Trooper Adams]: They were not involved in the transaction, itself.
[Commonwealth]: And did you make any contact with Towanda Borough Police prior to setting up this transaction with the CI and [Appellant]?
[Trooper Adams]: Yes, I did.
[Commonwealth]: And why did you do that?
[Trooper Adams]: Because the individual was suspended for DUI purposes.
[Commonwealth]: And what was your concern in that regard?
[Trooper Adams]: Well, I didn’t, - obviously, the individual wasn’t supposed to be driving, so uh, - if they happened to see him, to conduct a traffic stop on him.
[Commonwealth]: Okay. So was this conversation before your CI transaction or after the transaction?
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[Trooper Adams]: It was before the transaction.
[Commonwealth]: And after the transaction was over, did you have any further contact with Towanda Borough?
[Trooper Adams]: I believe I did later on. I believe I made contact with Detective Ogden and Officer Bellows.
[Commonwealth]: Okay. And what was the purpose of the having contact with them after the transaction?
[Trooper Adams]: Uh, to see if they were able to make the traffic stop on him. I was able to learn that they did.
[Commonwealth]: Now, are you familiar with the term buy bust?
[Trooper Adams]: Yes, I am.
[Commonwealth]: Was there any intention of doing that on this occasion?
[Trooper Adams]: No, there was not.
[Commonwealth]: And, so why did you want Towanda Borough to stop him, or –
[Trooper Adams]: The sole purpose was because the individual was suspended for DUI purposes, he shouldn’t be driving on the roadway. So that was the only reason why I contacted Detective Ogden that day, because I knew he was going to be in the borough, and that I knew that the Borough police officers had had contact with him before, knew who he was.
[Commonwealth]: Well, did you have a legal concern about him driving if you knew he was under suspension?
[Trooper Adams]: A legal concern?
[Commonwealth]: Yeah.
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[Trooper Adams]: Well, sure, yeah. I mean, if he went out and – after the transaction and then got into an accident, y’know, obviously that wouldn’t have looked too good for me that I allowed this.
[Commonwealth]: Now, did you, after [Appellant] left the area, that – well, go back, - did you have another trooper involved with you as far as the CI buy?
[Trooper Adams]: Yeah, - yes, my partner Trooper Hutchison, who’s a narcotic officer, as well.
[Commonwealth]: And after the transaction was over, what did the two of you do?
[Trooper Adams]: It was my case, so what I did was follow the informant to a pre-determined location where I met with the informant, while Trooper Hutchison followed [Appellant].
[Commonwealth]: What was the purpose of Trooper Hutchison following [Appellant]?
[Trooper Adams]: Uh, to see where he would go, to see if he was going to meet with any other individuals. Sometimes we follow the individual to see if they meet with, - possibly their supplier, to pay that individual. See where they reside on occasion.
[Commonwealth]: And when did you become aware that Officer Edsell made a stop of [Appellant]?
[Trooper Adams]: I don’t recall. It was sometime after I had met with the informant after the transaction is when I learned of it.
[Commonwealth]: You filed charges October twenty-first, is that correct? Or –
[Trooper Adams]: Yes, I believe that is correct, yes.
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[Commonwealth]: Was there ever any intention of filing the charge on the day of the buy?
[Trooper Adams]: There was not. And my reasoning for that is if I file the charges that day immediately after the transaction, [Appellant] would’ve known who the informant was. This particular informant had other investigations on-going with me, and at that point, I didn’t want to compromise those investigations.
N.T., 1/23/15, at 17-20.
On cross-examination, Trooper Adams explained further:
[Appellant’s Counsel]: Trooper Adams, you knew that a stop of [Appellant] may in fact yield evidence of the transaction. Is that correct?
[Trooper Adams]: Uh, it’s a possibility, yeah, I assumed that.
[Appellant’s Counsel]: Whether he was stopped on his way to the transaction or after the transaction?
[Trooper Adams]: Yes, ma’am.
[Appellant’s Counsel]: Okay, so if he was stopped on the way to the transaction, you might find the drugs, is that correct? The officer might find the drugs?
[Trooper Adams]: Correct.
[Appellant’s Counsel]: And if he was found after the transaction, might find the money?
[Appellant’s counsel]: And you know that when there was, you were, you were the investigating officer in this case, correct?
[Trooper Adams]: Yes.
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[Appellant’s Counsel]: And so it was your decision, along with Trooper Hutchison, to make contact with Towanda Borough to let them know what was going on. Is that correct?
[Appellant’s Counsel]: And it was your decision to let them know that [Appellant] would be driving without a license, is that correct?
[Appellant’s counsel]: And that didn’t, your concern about his driving without a license, didn’t stop you from setting up a transaction with him, knowing he would drive to it.
[Trooper Adams]: Excuse me?
[Appellant’s Counsel]: That concern didn’t stop you from setting up the transaction.
[Appellant’s counsel]: And in fact, you were aware that day that he had been stopped, is that correct?
[Trooper Adams]: Yes, I had learned about it later in the day. Yes.
[Appellant’s counsel]: And you were aware of the fact that day, that he had been placed under arrest.
[Appellant’s counsel]: And that his car had been searched.
[Trooper Adams]: And that money had been seized.
[Appellant’s counsel]: And you asked that day that, you asked Towanda to check the serial numbers on that money?
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[Appellant’s counsel]: And you asked that, I don’t know, has that money been transferred to evidence at the State Police barracks?
[Trooper Adams]: It has not yet.
[Appellant’s counsel]: But you were made aware back on the day of this transaction, that the seized money was in fact found?
[Appellant’s counsel]: And you were aware also that drug paraphernalia was found.
[Appellant’s Counsel]: And another piece of evidence that would help support your claim would be recovery of money that was used in the transaction, that you knew was used in the transaction?
[Appellant’s counsel]: . . . The, the drug transaction, the fact that the drug transaction was going to take place was discussed with Towanda police?
[Trooper Adams]: My conversation with Detective Ogden that day was simply, [Appellant] is coming into town, I don’t know whether he’s alone or if he’s going to be with somebody else, probably driving a silver Saturn, and we’re going to be doing a drug transaction for Heroin on Second Street. He’s DUI- suspended, if your guys happen to see him, stop him. I didn’t specify whether – stop him on the way in town, stop him on the way out of town. Simply if they see [Appellant] driving down the roadway to stop him.
[Appellant’s counsel]: And Trooper Hutchison, in fact, according to the affidavit of probable cause made Officer Edsell and Officer Bellows aware of [Appellant’s] location, is that correct?
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[Trooper Adams]: Yes, he had called Mr., or excuse me, Officer Bellows, and told him that he was currently at the Dandy Mini Mart. Now, I don’t know whether Officer Edsell was already, had eyes on uh - [Appellant], or not. I have no idea.
[Appellant’s counsel]: And in fact, - but you put in your report and I think, in your affidavit of probable cause, Trooper Hutchison made contact with Officer Edsell and Brian Bellows and advised them of [Appellant’s] location. Is that correct?
[Trooper Adams]: Correct. Yes.
[Appellant’s counsel]: And in your affidavit of probable cause, you indicated that [Appellant] was stopped by Towanda PD, and that it led to them locating and seizing prescription medication, drug paraphernalia, along with some of the currency. Is that correct?
[Appellant’s counsel]: And so – Towanda Borough was made aware that that was in fact the currency involved in the, in the transaction, is that correct?
[Trooper Adams]: I don’t recall if I ever called them back. I asked them to photo-copy the money and fax it to me. I don’t remember if I called them back that evening and told them, that that was the currency used. At some point I did tell them.
N.T., 1/23/15, at 21-26.
Relevant to this analysis is the affidavit of probable cause filed by
Trooper Adams in support of the subsequent criminal complaint and
corresponding arrest warrant. The affidavit of probable cause included a
detailed description of the pre-arranged heroin purchase with the CI.
Affidavit of Probable Cause, 10/21/14, at 1. The affidavit also included the
following information:
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Trooper Hutchison was able to follow [Appellant], who was the lone occupant of the Saturn, from Elizabeth Street to the Dandy Mini Mart along Main Street in Towanda Borough. Prior to the deal, we made contact with Towanda Boro. P.D. Det. Al Ogden about possibly doing a drug transaction with [Appellant] today in the Borough. We also advised Ogden that [Appellant’s] driving privileges were suspended and if they observed him to traffic stop him. Trooper Hutchison made contact with Officer Ryan Eds[e]ll and Brian Bellows and advised them of [Appellant’s] location. [Appellant] was observed meeting with a female known to this Department named Shelby Nonnemacher before he departed the lot. He was then followed onto Merrill Parkway where he was eventually stopped by Towanda Boro. P.D. The stop eventually led to them locating and seizing prescription medication and paraphernalia along with some of this Trooper’s photocopied US currency used for the heroin purchase.
Id. at 2.
Our review of the evidence supports the conclusion that the events of
September 17, 2014, constituted a single criminal episode. The evidence
reflects that the state police orchestrated the entire episode involving
Appellant. The state police arranged the heroin purchase and, desiring to
not stop Appellant immediately after the purchase, enlisted the help of the
Towanda Borough police to stop Appellant for a traffic violation after the
controlled buy. After the heroin purchase, a state trooper followed Appellant
and advised Towanda Borough officers of Appellant’s location. Despite
assertions to the contrary, the evidence reveals that the state police did not
desire to have Appellant stopped by Towanda police solely based on their
legal concern regarding Appellant driving while his license was suspended.
Indeed, Trooper Adams testified that he knew Appellant’s license was
suspended before arranging the heroin purchase. This fact did not deter him
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from arranging the buy that would likely, and in fact did, cause Appellant to
operate a vehicle without a valid license.
The evidence suggests that the state police sought to have Appellant
stopped after the controlled buy on the driving under suspension violation so
as not to reveal the identity of the CI, but also to ensure recovery of
evidence. The stop of Appellant by Towanda Borough police officers,
approximately thirty minutes after the arranged purchase, allowed for
recovery of the marked currency involved in the heroin purchase. This
evidence was pertinent to the state troopers in making a case against
Appellant for the heroin sale. As Trooper Adams testified, he called the
Towanda Borough officers inquiring as to the recovery of the marked
currency and requested that they provide him with that evidence. As the
evidence further reflects, when Appellant inquired as to the return of his
money at the preliminary hearing on the prior charges, Appellant was told
that the money recovered during the stop based on his driving without a
license would not be returned to him, as it was part of an investigation by
the state police. Thus, it was clear that recovery of the marked currency
was of importance to the state police.
Moreover, Trooper Adams included information from the stop
conducted by Towanda Borough officers, and recovery of the marked
currency, in his affidavit of probable cause supporting the heroin-purchase-
related charges against Appellant. In fact, both criminal informations
charged Appellant with driving under suspension. Here, the participants,
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and ultimately witnesses to the various offenses, are the same and they
acted in close concert to apprehend and charge Appellant.
Thus, the totality of circumstances compels the conclusion that this
was a single criminal episode. The charges in both informations are logically
and temporally related and share common issues of law and fact.
Additionally, we note that here the separate criminal informations were
not filed at the same time. Accordingly, Appellant was unable to engage in
any procedural maneuvering to improperly obtain the protection of Section
110. Such “procedural maneuvering” was rejected in Commonwealth v.
Gimbara, 835 A.2d 371 (Pa. Super. 2003). In Gimbara, the defendant was
charged with speeding and driving under a license suspension. The
defendant simultaneously mailed a guilty plea to the charge of speeding, and
not guilty to the suspension charge, demanding a jury trial. Prior to this
requested trial date, the defendant moved to disqualify the trial on the
grounds it contravened Section 110 because he already pled guilty to an
offense which arose out of the same criminal episode. This Court rejected
that interpretation of the statute and held that Section 110 may not be used
to shield a defendant from properly initiated prosecutions through such
procedural maneuvering. Id. at 377.
Here, there is no evidence that Appellant was aware that the second
criminal information would be filed against him five weeks after the incident,
and almost an entire month after he entered into a plea bargain in response
to previous similar charges. Indeed, Appellant was likely surprised to have
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had a subsequent indictment filed against him related to the events of
September 17, 2014, after he entered a bargained plea to similar charges on
September 24, 2014. As such, it cannot be said that Appellant engaged in
any prohibited procedural maneuvering cautioned against in Gimbara.
Instead, as in Hude, both prosecutions contain a substantial duplication of
issues of fact and law, which will not only force [Appellant] to “run the
gauntlet” repeated times and confront the “awesome resources of the state”
successively, but would also sanction “an unjustifiable expenditure of judicial
resources.” Hude, at 180, 183. As the Supreme Court stated in Hude, in
cases such as this, failure to consolidate these charges will bar successive
prosecutions. Id.
Having concluded that the second element of the four-pronged test
has been met, we consider the applicability of the third prong. Appellant
argues that the “appropriate prosecuting officer was aware of the instant
offenses at the time of the first conviction.” Appellant’s Brief at 15.
Appellant argues that in this case, Officer Edsell was the appropriate
prosecuting officer. Id. Because Officer Edsell was aware of all offenses
involved during the espisode with Appellant, Appellant asserts that Officer
Edsell’s awareness was sufficient to meet the third element of the
compulsory joinder rule. Id.
Conversely, the Commonwealth argues that Officer Edsell had no
authority to consolidate the charges with the state police. Commonwealth’s
Brief at 7. Furthermore, the Commonwealth points out that “Officer Edsell
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testified that there was no discussion regarding the possible State Police
charges on the date of the preliminary hearing for the charges Officer Edsell
filed. ([citing] N.T. 1-23-15 p.7).” Id.
Here, the record reflects that the facts supporting the charges included
in the two separate criminal informations were known to all involved officers
on September 17, 2014. The evidence reveals that the two police
departments worked in close conjunction to apprehend Appellant following
the controlled heroin buy. Based on the evidence of record, we are unable
to conclude that either department was unaware of the entirety of criminal
offenses and potential charges. Furthermore, in detailing the events related
to either criminal information, the facts of the other would have become
known to any prosecuting official. As noted, Trooper Adams’ affidavit of
probable cause in support of the current charges included facts related to
the pre-arranged heroin purchase; information on the arrangement made
with Towanda Borough officers to stop Appellant; the fact that a trooper
followed Appellant after the pre-arranged buy and advised the Towanda
Borough officers as to Appellant’s location for purposes of the stop;
information on the stop conducted by Towanda Borough officers; and the
fact that the stop by Towanda Borough officers led to the discovery and
seizure of prescription medication and drug paraphernalia, along with
marked currency used in the heroin purchase. Affidavit of Probable Cause,
10/21/14, at 2.
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Additionally, although the Commonwealth expounds upon the fact that
Officer Edsell, a Towanda Borough officer, had no authority to consolidate
charges with the State Police, the Commonwealth fails to assert that the
prosecutors in Bradford County did not have pretrial knowledge of the
current charges prior to Appellant’s conviction of the former charges. We
note that in Bracalielly, 658 A.2d at 760, the Supreme Court found that the
third element was met where the Commonwealth failed to dispute that
prosecutors had pretrial knowledge of pending charges. Id.
Based on the evidence of record, we are constrained to conclude that
the appropriate prosecuting officer was aware of the criminal conduct, which
is the basis for the current charges, before the commencement of the former
charges. See Commonwealth v. George, 38 A.3d 893, 898-899 (Pa.
Super. 2012) (in concluding that the prosecutor was aware of subsequent
charges before the commencement of the first trial for purposes of 18
Pa.C.S. § 110 analysis, this Court noted that “the test is not whether [the
a]ppellee could be charged, but whether prosecuting officers knew of the
offense.”) Thus, the third element is also met.
In summary, we conclude that the subsequent heroin-purchase-related
charges brought against Appellant by the state police, after entry of
Appellant’s initial plea, arose from the same criminal episode because they
were so logically and temporally interrelated that they essentially involved
the same issues of law and fact. We further determine that the appropriate
prosecuting officer was aware of the criminal conduct, which is the subject of
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the present prosecution, at the time of Appellant’s guilty plea on the former
charges. Accordingly, 18 Pa.C.S. § 110 was violated by the second
indictment, and Appellant is therefore entitled to relief.
The trial court’s order is reversed. The indictment currently at issue is
quashed and Appellant is discharged.
P.J.E. Bender joins the memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/7/2016
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