100 A.3d 216
Pa. Super. Ct.2014Background
- Police surveilled drug activity near 600 block of S. 56th St., Philadelphia, and observed Tisdale and Raheem, with a female buyer, leading to an exchange of marijuana-containing baggies.
- Raheem handed a clear baggie of marijuana to Tisdale; Tisdale placed it into a white plastic bag on a porch at 5545 Walton St. and walked away.
- Police recovered twelve yellow packets of marijuana (0.72 g each) totaling 8.64 g from the bag on the porch, and seized $20 from Tisdale and $49 from Raheem.
- Tisdale was tried de novo on a PWID charge after a municipal court, where he was acquitted of PWID but found guilty of possession; Gordon argued for SAM but trial court rejected applying Gordon since SAM wasn’t charged.
- The Superior Court held that possession and SAM are lesser included offenses to PWID; because the total marijuana was under 30 g, SAM applies, so Tisdale should be convicted of SAM rather than the general possession offense.
- The court vacated the judgment for possession and remanded to enter a guilty verdict on SAM and to dispose of the conspiracy charge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tisdale could be convicted of SAM when only PWID was charged | Tisdale (Commonwealth) argues Gordon controls and SAM should flow from PWID. | Tisdale argues he was not charged with SAM, so Gordon should not apply. | Yes; SAM conviction proper as a lesser included offense to PWID. |
| Whether the evidence supports SAM as the lesser included offense | Evidence showed 8.64 g total, within SAM threshold (<30 g). | No explicit SAM charge; but SAM is a lesser included offense to PWID. | Yes; evidence supports SAM, requiring remand for SAM verdict. |
| Whether the de novo trial posture affects charge applicability | De novo trial treats charges anew; Gordon’s lack of SAM charge is irrelevant. | Trial court must adhere to the charged offenses; Gordon distinguished. | De novo status allows application of lesser included offenses when implicit. |
Key Cases Cited
- Commonwealth v. Gordon, 897 A.2d 509 (Pa. Super. 2006) (held SAM is the specific offense and requires vacating the general possession conviction when applicable)
- Commonwealth v. Wilds, 362 A.2d 273 (Pa. Super. 1976) (discusses the scope of lesser included offenses and proper conviction)
- Commonwealth v. Brown, 29 A.2d 793 (Pa. 1943) (general vs. specific charging rule for lesser offenses)
- Commonwealth v. Leber, d/b/a Arctic Contractors, Inc., 802 A.2d 648 (Pa. Super. 2002) (policy against prosecuting under general provisions when a specific provision applies)
- Commonwealth v. Gouse, 429 A.2d 1129 (Pa. Super. 1981) (how a lesser included offense can be implicit in charged offenses)