Com. v. Negron-Pizarro, H. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARRY E. NEGRON-PIZARRO
Appellant No. 1001 MDA 2014
Appeal from the Judgment of Sentence Entered January 30, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004768-2011
BEFORE: BENDER, P.J.E., OLSON and OTT, JJ.
CONCURRING STATEMENT BY OLSON, J.: FILED FEBRUARY 24, 2015
I am constrained to concur with the learned Majority’s conclusion that
we are required to vacate Appellant’s sentence and remand for resentencing
without consideration of the mandatory minimum sentence set forth in 18
Pa.C.S. § 7508. I write separately, however, to address the
Commonwealth’s argument with respect to the severability of Section
7508(b) from the rest of Section 7508. In declining to consider this
argument, the learned Majority states that “[t]he unanimous nature of our
decision in [Commonwealth v.] Vargas[, 2014 WL 7447678 (Pa. Super.
Dec. 31, 2014) (en banc)] with regard to the unconstitutionality of the
entirety of Section 7508 due to the Alleyene [v. United States, 133 S. Ct.
2151 (2013)]-offending subsection, Section 7508(b), leaves us unpersuaded
by the Commonwealth’s argument that [Commonwealth v.] Newman[, 99
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A.3d 86 (Pa. Super. 2014) (en banc)] was wrongly decided on the question
of severability.” Majority at 5-6.
I respectfully disagree with this statement as I continue to believe that
Newman was wrongly decided on the issue of severability. In Newman, I
joined the concurring opinion in which our esteemed colleague, Judge Sallie
Mundy, concluded that the burden of proof aspects of the mandatory
minimum statutes affected by Alleyne are indeed severable. Newman, 99
A.3d at 104-106.1 As the author of Vargas, I was bound by the precedent
set by Newman, notwithstanding any contrary views expressed therein, and
its progeny in finding that the mandatory minimum sentence imposed on the
appellant pursuant to Section 7508 was unconstitutional and, therefore, had
to be vacated. Commonwealth v. Brigidi, 6 A.3d 995, 1001 (Pa. 2010),
quoting Commonwealth v. Crowley, 605 A.2d 1256, 1257 (Pa. Super.
1992) (“precedent (stare decisis) requires us to adhere to a ruling of this
Court until it is reversed either by our Supreme Court or on en banc panel of
Superior Court”).2
____________________________________________
1
In addition to Judge Mundy’s concurring opinion in Newman, I agree with
the cogent and thorough analysis of the severability issue articulated by our
esteemed colleague, Judge Mary Jane Bowes, in her concurring opinion in
Commonwealth v. Bizzel, 2014 WL 6756277 at 4-11.
2
I note that our Supreme Court is currently considering the severability
issue. See Commonwealth v. Wilson, 9 WAP 2014, and related cases.
-2-
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For these reasons, I am compelled to concur in the result reached by
the Majority.
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