Com. v. Eddings, H.

J-S42015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAROLD EDDINGS :
:
Appellant : No. 70 WDA 2022
Appeal from the Judgment of Sentence Entered December 13, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002544-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAROLD EDDINGS :
:
Appellant : No. 71 WDA 2022
Appeal from the Judgment of Sentence Entered December 8, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002545-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAROLD EDDINGS :
:
Appellant : No. 72 WDA 2022
Appeal from the Judgment of Sentence Entered December 8, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002546-2019
J-S42015-22
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 19, 2022
Harold Eddings appeals from the judgments of sentence in the three
above cases after the trial court denied Appellant’s motion to dismiss pursuant
to the compulsory joinder rule codified at 18 Pa.C.S. § 110(1). We affirm.
On February 14, 2017, Pennsylvania State Police Trooper Matthew
Gavrish executed a search warrant for 406 3rd Street in Fayette County,
Pennsylvania.1 During the search, officers seized 95.21 grams of cocaine, a
stolen and loaded .40 caliber pistol, and drug paraphernalia consistent with
testing, analyzing, and storing controlled substances. Trooper Gavrish found
Appellant in his bedroom, where he was detained without issue. This event
gave rise to charges at CP-26-CR-0002545-2019, hereinafter referred to as
“incident number one.”
Four months later, on June 17, 2017, Trooper Gavrish met with a
confidential informant (“CI”) to arrange the purchase of crack cocaine from
Appellant. Thereafter, Trooper Gavrish observed and positively identified
Appellant as he met with the CI and handed the CI crack cocaine in exchange
for an unspecified amount of funds. This drug sale was later charged at CP-
26-CR-0002544-2019, hereinafter referred to as “incident number two.”
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* Retired Senior Judge assigned to the Superior Court.
1 No notes of testimony were transcribed and included as part of the certified
record. Therefore, we have derived the facts from the affidavits of probable
cause contained in the certified record.
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On October 25, 2017, Trooper Gavrish conducted a controlled buy of
illicit drugs from Appellant through a CI.2 Almost two years later, on March 6,
2019, Appellant was arrested and charged at CP-XX-XXXXXXX-2019 with
possession with intent to distribute (“PWID”), possession of a controlled
substance, and possession of drug paraphernalia. The October 2017
controlled buy, hereinafter referred to as “incident number three,” is the
subject of the prior prosecution that Appellant claims barred the prosecution
that is the subject of this appeal.3
On March 7, 2019, Trooper Gavrish executed a search warrant for 406
3rd Street in Fayette County, the same residence searched pursuant to the
2017 warrant. During the search, officers seized a loaded and stolen Ruger
P89 pistol, 87 grams of cocaine, 368 grams of marijuana, six THC cartridges,
and multiple pieces of drug paraphernalia consistent with analyzing, packing,
and storing controlled substances. The fruits of this search formed the basis
for subsequent charges at CP-XX-XXXXXXX-2019, which will hereinafter be
referred to as “incident number four.”
Charges pertaining to incidents one, two, and four were not filed until
October 7, 2019, over one and one-half years after the complaint for incident
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2 As neither CI is named in the certified record, it is unclear whether both
controlled buys involved the same or different individuals.
3 Since incident number three is not the subject of this appeal we do not have
access to the certified record for that appeal. Therefore, all facts relating to
this incident have been gleaned from the court of common pleas docket sheet,
the parties’ appellate briefs, or references to the controlled buy in the certified
records for incidents one, two, and four.
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number three was filed, and one week before Appellant proceeded to a jury
trial in that case.4 The jury empaneled for incident number three ultimately
convicted Appellant of all charges and sentencing was deferred.
Following his conviction for incident number three, the Commonwealth
filed notice of its intent to consolidate the prosecution of incident numbers one
and four, the cases stemming from the execution of the two search warrants.
The remaining controlled buy case, or incident number two, continued to
proceed independently. On January 7, 2021, the trial court sentenced
Appellant to eighteen months to five years of incarceration for the convictions
pertaining to incident number three.
On May 10, 2021, Appellant filed an omnibus pre-trial motion to dismiss
the three remaining cases pursuant to the compulsory joinder rule in 18
Pa.C.S. § 110, claiming the three cases arose from the same criminal episode
as the third incident, and the Commonwealth was aware of the charges at the
time of his jury trial for incident number three. See Omnibus Pretrial Motion,
1/25/21, at ¶ 27. Appellant also alleged that the firearms offense charged in
incident number one should be dismissed because the two-year statute of
limitations had expired eight months before Appellant was charged. Id. at
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4 For incident number one, Appellant was charged with possession of a
firearm, PWID, possession of a controlled substance, and possession of drug
paraphernalia. For incident number two, Appellant was charged with PWID,
possession of a controlled substance, and possession of drug paraphernalia.
For incident number four, Appellant was charged with possession of a firearm
prohibited, two counts of PWID, receiving stolen property, three counts of
possession of a controlled substance, and possession of drug paraphernalia.
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¶ 39. After holding a hearing on this motion, the court denied the motion for
compulsory joinder, finding “no conduct arising from the same criminal
episode . . . [because all the] cases involve[d] different dates and places. Two
cases result[ed] from searches and two result[ed] from drug buys. Two cases
include[ed] firearm charges, and two cases are solely drug charges.” Order,
7/16/21, at 1. However, the court agreed with Appellant that the statute of
limitations had run on the firearms offense and granted Appellant’s motion to
dismiss count one from incident one on that basis. Id. at 2.
On September 9, 2021, Appellant proceeded to a jury trial for the
charges pertaining to the incident number two. At the conclusion of the trial,
the jury convicted Appellant of all counts. Sentencing was deferred.
On December 8, 2021, Appellant entered open guilty pleas for the
remaining charges pertaining to incident numbers one and four. The same
day, Appellant proceeded to sentencing. For PWID in incident number one,
the trial court sentenced Appellant to serve five to ten years of incarceration
concurrently with the sentence imposed at incident number three. For incident
number four, Appellant received an aggregate sentence of six to twelve years
of incarceration to run concurrently with the sentences imposed at the other
incidents. Five days later, Appellant was sentenced for incident number two
to twenty-one months to four years of incarceration concurrent to the
sentences imposed at the other incidents. Appellant did not file any post-
sentence motions. Instead, he submitted separate and timely notice of
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appeals for incidents one, two, and four, which we consolidated. The parties
have complied with the mandates of Pa.R.A.P. 1925.5
Appellant raises the following issue for our review: “Did the court err
by denying [Appellant’s] motion to dismiss based upon the compulsory joinder
statute, when the events of the three cases arose from a single criminal
episode, the same prosecuting officer was involved, and the same events were
logically related to one another?” Appellant’s brief at 4.
Preliminarily, we consider whether Appellant has preserved his claim for
appellate review. It is well-established that “claims going to the compulsory
joinder rule are waivable.” Commonwealth v. Dawson, 87 A.3d 825, 827
(Pa. Super. 2014). However, a finding of waiver is disfavored “unless the
defendant has taken some sort of affirmative action to separate the
prosecutions pending against him.” Commonwealth v. Failor, 770 A.2d
310, 314 (Pa. 2001).
First, Appellant pled guilty in two of the cases implicated in his claim.
Generally, entry of a guilty plea results in the waiver of “all claims and
defenses other than those sounding in the jurisdiction of the court, the validity
of the plea, and what has been termed the legality of the sentence imposed.”
Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) (cleaned up).
However, our Supreme Court has held that, since “the burden to consolidate
charges rests solely with the prosecution,” a defendant’s acquiescence to
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5 The trial court did not file a Pa.R.A.P. 1925(a) opinion, but instead directed
our attention to the order denying Appellant’s omnibus pretrial motion.
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consolidation by pleading guilty does not lead by itself to waiver. See Failor,
supra at 314-15. Accordingly, by pleading guilty, Appellant did not waive his
appellate argument based upon the compulsory joinder rule.
Second, we note that the transcripts from the omnibus pretrial motion
hearing, guilty plea hearing, and jury trial are not contained within the
certified record. Moreover, there is no notation on the court of common pleas
docket indicating that Appellant ordered or requested transcription of any
testimony in the three cases that are the subject of this appeal. The parties
do not cite any transcripts in their briefs and our own informal inquiries have
not uncovered the existence of any transcripts. “[T]he Rules of Appellate
Procedure require an appellant to order and pay for any transcript necessary
to permit resolution of the issues raised on appeal.” Commonwealth v.
Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc) (“Our law is unequivocal
that the responsibility rests upon the appellant to ensure that the record
certified on appeal is complete in the sense that it contains all of the materials
necessary for the reviewing court to perform its duty.” (citing
Pa.R.A.P.1911(a)). “When the appellant . . . fails to conform to the
requirements of Rule 1911, any claims that cannot be resolved in the absence
of the necessary transcript or transcripts must be deemed waived for the
purpose of appellate review.” Id. (citation omitted). “It is not proper for
either the Pennsylvania Supreme Court or the Superior Court to order
transcripts nor is it the responsibility of the appellate courts to obtain the
necessary transcripts.” Id. (citation omitted).
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Appellant’s sole issue on appeal requires a fact intensive analysis,
examining the factual background of each charge in relation to the others to
determine the temporal and logical relationship between the charges. See
Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013); see 18 Pa.C.S.
§ 110(1)(ii). Thus, the absence of the omnibus pretrial motion on this topic,
the guilty plea hearing, and the trial transcript hinders our review and we
could find Appellant’s claim waived for this reason. However, since our review
of the appellate briefs revealed no factual disputes, we decline to find waiver
on this basis, and proceed with our analysis utilizing the facts as gleaned from
the certified record.
Appellant contends that, in view of his conviction for PWID at incident
three, the compulsory joinder rule found in 18 Pa.C.S. § 110(1)(ii) barred his
prosecution and convictions at incident numbers one, two, and four. See
Appellant’s brief at 11. “Our standard of review of a motion to dismiss on the
basis of compulsory joinder principles pursuant to § 110 is de novo, and the
scope of our review is plenary.” Commonwealth v. Pammer, 232 A.3d 931,
933 (Pa.Super. 2020) (citation omitted).
The compulsory joinder rule states in relevant part:
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 . . . and the subsequent prosecution is for:
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(i) any offense of which the defendant could have
been convicted on the first prosecution;
(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 the 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 the offense of which
the defendant was formerly convicted or acquitted
was a summary offense or a summary traffic offense.
18 Pa.C.S. § 110(1). Our Supreme Court has distilled this statute into a four-
part test to determine if a prosecution is appropriately barred: (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. See Commonwealth v. Perfetto, 207 A.3d 812,
821 (Pa. 2019). “Each prong of this test must be met for compulsory joinder
to apply.” Commonwealth v. Fthian, 961 A.2d 66, 72 (Pa. 2008).
The parties do not contest establishment of the first, third, and fourth
prongs.6 Accordingly, Appellant focuses his analysis on whether the
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6 Our review of the certified record confirmed the Commonwealth’s concession
as: at incident number three, Appellant was convicted of PWID and related
charges on October 13, 2020; all charges stemmed from events that occurred
within the same judicial district, namely Fayette County; and finally, the
Commonwealth was aware of the current charges before the commencement
of the trial for incident three. See Criminal Information 2544-2019 (listing
(Footnote Continued Next Page)
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prosecution of the charges in the current cases were based on the same
criminal conduct involved in the prior prosecution. See Appellant’s brief at
11.
When considering whether offenses arose from a “single criminal
episode,” our Supreme Court has instructed us to look to the temporal and
logical relationship between the charges. Reid, supra at 582; see also 18
Pa.C.S. § 110(1)(ii). The Court offered the following guidance in assessing
the logical relationship between offenses:
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. 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.”
Commonwealth v. Hude, 458 A.2d 177, 181 (Pa. 1983). “[M]ere de
minimus duplication of factual and legal issues is insufficient to stablish a
logical relationship between offenses. Rather, what is required is a substantial
duplication of issues of law and fact.” Commonwealth v. Bracalielly, 658
A.2d 755, 761 (Pa. 1995) (internal citations omitted); see also Reid, supra
at 585-86 (stressing the significance of a substantial duplication of issues of
law and fact before a logical relationship can be found). Accordingly, our
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the offense date as June 27, 2017), see also Criminal Information 2545-2019
(listing the offense date as February 14, 2017); see also Criminal Information
2546-2019 (listing the offense date as March 7, 2019).
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determination “depends ultimately on how and what the Commonwealth must
prove in the subsequent prosecution.” Reid, supra at 585-86. “The single
criminal episode analysis essentially considers the totality of the
circumstances.” Commonwealth v. Schmidt, 919 A.2d 241, 246 (Pa.Super.
2007). “Finally, in considering the temporal and logical relationship between
criminal acts, [courts should be] guided by the policy considerations § 110
was designed to serve, which “must not be interpreted to sanction ‘volume
discounting[,]’ [procedural maneuvering,] or . . . to label an ‘enterprise’ an
‘episode.’” Reid, supra at 585-86 (citation omitted).
Appellant contends that a single criminal episode exists because the
cases involved “substantially the same crimes,” a single lead prosecuting
officer, and were part of a single “ongoing investigation into Appellant’s
activities.” See Appellant’s brief at 9-11. Meanwhile, the Commonwealth
alleges compulsory joinder was not appropriate here because the facts do not
arise from a single criminal episode, but instead involve different witnesses,
evidence, and legal questions. See Commonwealth’s brief at 8. We agree
with the Commonwealth that the certified record does not support the
existence of a logical or temporal relationship between the offenses.
Herein, the “proof of each individual instance of possession and delivery
in each county would not rest solely on the credibility of a single witness, but
rather, would require the introduction of the testimony of completely different
police officers and expert witnesses as well as the establishment of completely
different chains of custody.” Bracalielly, supra at 761. Although the same
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affiant needed to testify at each proceeding, Appellant’s charges were not
based exclusively upon the testimony of Trooper Gavrish. Additional officers
were involved in the execution of the two search warrants and CIs participated
in the controlled buys.7 Furthermore, while the controlled substances were
submitted to the same laboratory, they were assigned separate lab report
numbers on distinct dates and, thus, likely involved different medical experts
and chains of custody. Therefore, despite a de minimus duplication of the
factual issues and offense types, we do not find enough similarities between
the offenses to consider them “logically related” to one another.
Additionally, we do not find that the temporal relationship between the
offenses leads to the conclusion that they were part of the same criminal
episode. Significantly, these incidents occurred over a two-year span with
significant time gaps between offenses. Compare Hude, supra (holding that
drug charges brought against the defendant were barred by a previous drug
trial, because the former and current prosecution arose out of a series of
twenty sales of marijuana to the same individual over a three-month period).
Ultimately, while many of the offenses are based on the same criminal
statues, the offenses themselves involved different drugs and guns and
occurred at different dates over a two-year span of time. The fact that
Appellant accrued serial charges stemming from his illicit drug enterprise does
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7 The Commonwealth also suggests that at least one of the search warrant
cases involved a cooperating co-defendant who testified against Appellant.
See Commonwealth’s brief at 9.
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not render them the result of a single criminal episode. See Reid, supra at
585-86. Accordingly, because the offenses involved disparate factual and
legal circumstances, we find that 18 Pa.C.S. § 110 did not bar the prosecution
of Appellant’s current charges.8
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2022
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8 To the extent Appellant believes that the missing transcripts would have
revealed a logical relationship among the offenses that we were unable to
discern from the factual history available in the certified record, Appellant can
pursue relief through the Post Conviction Relief Act. See 42 Pa.C.S. §§ 9541-
9546.
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