Com. v. Kelso, D. ( 2015 )

J-S32003-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARNELL LAMONT KELSO,
Appellant No. 168 WDA 2014
Appeal from the Judgment of Sentence Entered December 17, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003349-2013
BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 26, 2015
Appellant, Darnell Lamont Kelso, appeals from the judgment of
sentence entered following his convictions of possession of a prohibited
firearm, firearms not to be carried without a license, possession of a
controlled substance with intent to deliver, and simple possession of a
controlled substance. We vacate the judgment of sentence and remand for
resentencing.
The trial court summarized the history of this case as follows:
This matter arises out of [Appellant’s] arrest on January 3,
2013 by Pennsylvania State Police after information was received
that he was selling drugs from a motel room in Monroeville, Pa.
During the investigation regarding the sale of the drugs, it was
determined that [Appellant] has several warrants issued for his
arrest. [Appellant] was then placed under arrest for the
warrants and during the arrest it was discovered that [Appellant]
was in possession of a gun and heroin. [Appellant] filed a
motion to suppress and a hearing was held on October 29, 2013
J-S32003-15
at which the Commonwealth presented the testimony of Trooper
Jeffrey Brautigam of the Pennsylvania State Police who testified
that on January 2, 2013 information was received from a drug
user that an individual described as a black male using the street
name of “Fresh” was selling heroin from a room in a local motel.
(T., p. 3) As a result of the information Trooper Brautigam
contacted the hotel manager who provided him with
[Appellant’s] name as the person renting the room. Trooper
Brautigam then performed a record checks concerning
[Appellant], including PennDOT and JNET records which included
[Appellant’s] driver’s history, driver’s license photo and the FBI
criminal history. (T., p. 4) Trooper Brautigam also determined
that there were several active warrants issued by various
magistrates against [Appellant]. (T., p. 14) Trooper Brautigam
then positively identified [Appellant] as the person whose
photographs he observed during his records investigation and
arrested him based on the outstanding warrants. (T., p.p. 16-
17) Trooper Brautigam testified:
“[Appellant] was detained. I immediately asked
[Appellant] if he had any weapons on him.
[Appellant] told me that he had a gun stuffed down
the front of his pants. So then he was then [sic]
quickly escorted over to the room that we had been
conducting surveillance, [Appellant] was handcuffed,
searched, and he was found to have a loaded .45
caliber pistol stuffed down the front of his pants and
about eight bundles of heroin.” (T., p. 18)
On cross examination Trooper Brautigam acknowledged
that he did not observe [Appellant] involved in any criminal
conduct and that the arrest was based solely on the basis of the
outstanding warrants. (T., p. 38) [Appellant] argued that
Trooper Brautigam did not have the actual warrants in his
possession and did not follow the appropriate procedure for
executing a warrant and, therefore, any evidence obtained
during the arrest should be suppressed. [Appellant’s] motion
was denied as there is no requirement that the arresting police
officer actually have in his possession a warrant that was
previously issued[,] nor was he required to present the warrant
to the arrestee. Commonwealth v. Gladfelter, 324 A.2d 518,
519-[5]20 ([Pa. Super.] 1974). In addition, Trooper Brautigam
was not required to follow the procedures set forth in
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Pa.R.Crim.P. 431 when it was determined that [Appellant] was in
possession of the gun and the heroin.
At trial the Commonwealth incorporated into the record the
testimony from the suppression hearing and offered the
following stipulated evidence:
“On the date in question, which was January 3,
2013, location the Monroeville Days Inn. I think
where we left off in the suppression motion was
Trooper Brautigam was putting [Appellant] under
arrest for an arrest warrant and found what he
suspected to be controlled substances and a firearm
in his pants pocket. More specifically Trooper
Brautigam approached [Appellant], [Appellant]
immediately told Trooper Brautigam [Appellant] had
a gun stuffed down his pants, that was the front of
his pants. Trooper Brautigam removed the firearm
from [Appellant’s] pants. The firearm was loaded
with one in the chamber with the hammer pulled
back ready to be fired. The clip was also fully loaded
with bullets that would match the firearm in
question.
The firearm was submitted to the state police
crime lab, which would be marked for identification
purposes as Exhibit 1, in Greensburg and was
determined to be operable following lubrication and
cleaning of said firearm, would also satisfy the
statutory requirements for barrel length, et cetera,
under the Uniform Firearms Act.
Also found inside [Appellant’s] pants pocket
was eight bundles of heroin, a small bag of
marijuana and $570. The bundles were submitted to
the state police crime lab in Greensburg, again be
referenced as Commonwealth’s Exhibit 2. The lab
identified the submission as 71 stamped bags
determined to be 1.9 grams of heroin. The $570
was in the following denominations: One one-
hundred dollar bill, one fifty-dollar bill, 21 twenty-
dollar bills. Two cell phones were recovered from
[Appellant], no use — should be noted no use
paraphernalia was recovered from [Appellant].
[Appellant] told Trooper Brautigam he was basically
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homeless and did not have a permanent address;
also indicated unemployed.
[Appellant] did not have a license to carry a
firearm on January 3, 2013. That is established in
Exhibit 3. [Appellant] was previously convicted of a
possession with intent to deliver in federal court in
2008. That is referenced Exhibit 4.
That ends the factual stipulations by the
parties. Also one additional thing is that the
Commonwealth would provide expert testimony, City
of Pittsburgh Narcotic Detective Ed Fallert was
consulted about the above mentioned admitted
facts; he is willing to give an opinion that the drugs
were possessed, namely the 71 stamped bags of
heroin were possessed with the intent to deliver
them. Thus defense counsel would stipulate that
such testimony would be admitted before this court
on the facts of this case.” (T., pp. 9-11)
After argument and review of all of the evidence, including
the testimony from the suppression hearing, [Appellant] was
found guilty and sentenced on December 17, 2013.
Trial Court Opinion, 1/20/15, at 2-4.
Prior to trial, the Commonwealth filed a “Notice of Additional Facts
Affecting Mandatory Sentencing” indicating that Appellant’s charge for
possession with intent to deliver was subject to two mandatory minimum
sentences.1 (Docket Entry 8). On December 17, 2013, at the conclusion of
trial, the trial court sentenced Appellant in open court to serve two
mandatory minimum terms of incarceration for the conviction of possession
____________________________________________
1
The Commonwealth noted that mandatory minimum sentences were
applicable under 18 Pa.C.S. § 7508(a)(7) (relating to weight of the heroin)
and 42 Pa.C.S. § 9712.1 (relating to drug offenses committed with
firearms).
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with intent to deliver. Specifically, the court sentenced Appellant to a
mandatory minimum term of incarceration of three to six years, and a
concurrent mandatory minimum term of incarceration of five to ten years,
ostensibly both for the conviction of possession with intent to deliver.2 In
addition, the trial court sentenced Appellant to serve a consecutive term of
probation of five years.3 This timely appeal followed. Both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
I. DID THE LOWER COURT ERR IN APPLYING THE MANDATORY
MINIMUM FIVE-YEAR SENTENCE FOR DRUG OFFENSES
COMMITTED WITH FIREARMS PURSUANT TO 42 Pa.C.S. §
9712.1 INSOFAR AS THE SENTENCING STATUTE IS VIOLATIVE
OF THE SIXTH AMENDMENT AND ARTICLE 1 §§ 6 AND 9
BECAUSE IT AUTHORIZES THE IMPOSITION OF A MANDATORY
MINIMUM SENTENCE UPON A FINDING, BY A PREPONDERANCE
OF THE EVIDENCE BY THE SENTENCING JUDGE AT
SENTENCING, THAT [APPELLANT] POSSESSED A FIREARM
DURING THE COMMISSION OF A VIOLATION OF SECTION
13(A)(30) OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE
AND COSMETIC ACT?
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2
In his written opinion, the trial judge observed that there was a clerical
error in the sentencing order, which indicated that the five to ten year
mandatory minimum sentence was imposed on the conviction of possession
of a prohibited firearm. Trial Court Opinion, 1/20/15, at 6-8. However, the
trial court clarified that the mandatory five to ten year term of incarceration
was actually imposed on the conviction of possession with intent to deliver.
Id.
3
We note that, at the time of sentencing, the trial court was not specific as
to which conviction the term of probation was to be applied. However, the
sentencing order reflects that the probationary sentence was for Appellant’s
conviction of firearms not to be carried without a license.
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Appellant’s Brief at 5.
Appellant argues that the trial court imposed an illegal mandatory
minimum sentence for his conviction of possession with intent to deliver,
specifically for drug offenses committed with firearms. In support of his
argument that his mandatory minimum sentence is illegal, Appellant cites
the United State Supreme Court’s decision in Alleyne v. United States,
___ U.S. ___, 133 S.Ct. 2151 (2013), as well as this Court’s recent decisions
in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc)
(declaring 42 Pa.C.S. § 9712.1 unconstitutional, as that statute permits the
trial court, as opposed to the jury, to increase a defendant’s minimum
sentence based upon a preponderance of the evidence that the defendant
was dealing drugs and possessed a firearm, or that a firearm was in close
proximity to the drugs), Commonwealth v. Valentine, 101 A.3d 801 (Pa.
Super. 2014) (declaring mandatory minimum sentences set forth in 42
Pa.C.S. §§ 9712 and 9713 were unconstitutional), Commonwealth v.
Cardwell, 105 A.3d 748 (Pa. Super. 2014) (holding trial court erred by
imposing mandatory minimum sentence under Section 7508, even where
parties stipulated to weight of drugs; applying Newman and its progeny,
and concluding that Section 7508(b) is not severable from remainder of
statute; and remanding for resentencing without imposition of mandatory
minimum sentence), and Commonwealth v. Bizzel, 107 A.3d 102 (Pa.
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Super. 2014) (vacating mandatory minimum sentence imposed pursuant to
18 Pa.C.S. § 6317(b) following non-jury trial as a violation of Alleyne).
The trial court has agreed with Appellant and stated the following:
Consequently, while the evidence was sufficient to support
[Appellant’s] convictions and despite the fact that [Appellant]
stipulated to the facts that supported the imposition of
mandatory minimum sentences, the statutes on which the
sentences were based are unconstitutional and resentencing will
be required.
Trial Court Opinion, 1/20/15, at 10.
Likewise, the Commonwealth has conceded that, pursuant to the
current case law, it is constrained to agree that Appellant must be
resentenced in this matter.4 Commonwealth’s Brief at 11. Accordingly, we
vacate the judgment of sentence and remand for resentencing.
____________________________________________
4
We observe that the Commonwealth has included in its appellate brief a
section with the following heading:
II. COMMONWEALTH V. NEWMAN AND ITS PROGENY WERE
WRONGLY DECIDED.
Commonwealth’s Brief at 12. The Commonwealth begins its discussion in
this section by stating that “[w]hile your Honorable Court is bound by the
decision of the court en banc in Newman, supra, and by its progeny, the
Commonwealth submits that these decisions are erroneous and should be
reversed by our Supreme Court.” Id.
Indeed, we must follow the decisional law established by our own
Court. Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super.
2009). Furthermore, we note that recently in Commonwealth v. Hopkins,
98 MAP 2013, ___ A.3d ___ (Pa. filed June 15, 2015), our Supreme Court,
in a direct appeal filed by the Commonwealth from an order of the Court of
Common Pleas, relied upon Alleyne and struck down as unconstitutional the
(Footnote Continued Next Page)
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Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2015
_______________________
(Footnote Continued)
mandatory minimum sentencing scheme regarding drug-free school zones
set forth in 18 Pa.C.S. § 6317. In pertinent part, the Court in Hopkins
refused to sever the violative provisions from the statute, which was the
same determination reached by this Court in Newman.
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