Submitted March 10, 2014
Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): No. CP-51-CR-0015256-2012. Before CARPENTER, J.
Karl Baker, Public Defender, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: SHOGAN, J.,
ALLEN, J., and OTT, J.
Christopher Tisdale appeals from the judgment of sentence imposed on him on March 4, 2013, following his conviction on the charge of possession of a controlled substance -- marijuana (" possession" ) . Following a non-jury trial, Tisdale was acquitted of the charge of possession with intent to deliver (" PWID" ). Tisdale's sole issue on appeal is his claim that he was improperly convicted of possession and should have been convicted of possession of a small amount of marijuana (" SAM" ). After a thorough review of Tisdale's brief, 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.
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 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, 2006 PA Super. 77, 897 A.2d 504 (Pa. Super. 2006), because the stipulated amount of drugs involved was under 30 grams of marijuana, the court was ...