Com. v. Young, M. ( 2017 )

J-S26022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MONROE YOUNG, :
:
Appellant : No. 1663 EDA 2013
Appeal from the Judgment of Sentence Entered January 3, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0009297-2010.
BEFORE: BENDER, P.J.E., SHOGAN and FITZGERALD*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 25, 2017
Appellant, Monroe Young, appeals from the judgment of sentence
entered following his convictions of one count each of possession with intent
to deliver a controlled substance (“PWID”), possession of a firearm by a
prohibited person (“VUFA”), criminal use of communication facility,
possession of a controlled substance, possessing an instrument of crime
(“PIC”), and possession of a firearm with altered manufacturer’s number.
This case returns to us on remand from our Supreme Court for further
consideration in light of its opinion in Commonwealth v. Wolfe, 140 A.3d
*
Former Justice specially assigned to the Superior Court.
J-S26022-14
651 (Pa. 2016).1 Upon review, we vacate the judgment of sentence and
remand to the trial court for resentencing.
The trial court summarized the history of this case as follows:
On June 2, 2010, Police Officer Cruz, Police Officer Turner,
and Police Officer Kelly received information from another
investigation which led them to the area of 3300 North 22 nd
Street, in the city and county of Philadelphia. N.T., 9/11/12
p. 11. They met with a Confidential Informant (“CI”) 01195,
who had been used in over 50 investigations involving narcotics,
which had produced over 50 arrests. N.T., 9/11/12 pp. 8-10.
The CI was searched for contraband and currency. N.T.,
9/11/12 p. 11. Once cleared, the CI was supplied $40.00 in pre-
recorded buy money and the CI placed a call to 267-595-XXXX,
which the CI knew to be [Appellant’s] cell phone number. N.T.,
9/11/12 p. 11. [Appellant] answered the call and instructed the
CI to proceed to a property located on [the] 3300 block of North
22nd Street. N.T., 9/11/12 p. 12.
The police and the CI arrived at the location sometime
between 3:15 p.m. and 6:15 p.m. N.T., 9/11/12 p. 13. The CI
was released in the area and met up with [Appellant], engaging
in a brief conversation lasting approximately one minute, and
then handing [Appellant] the prerecorded buy money. N.T.,
9/11/12 pp. 13-14. Officer Cruz observed the entire transaction
from approximately 35-40 feet away in his vehicle. N.T.,
9/11/12 pp. 13, 27 and N.T, 9/12/12 p. 22. As Officer Cruz
continued to watch, the CI followed [Appellant] to 3325 North
22nd Street where they both entered the property. N.T., 9/11/12
pp. 13-14. They remained inside the property for approximately
two minutes and then exited the property together. N.T.,
9/11/12 pp. 14-15. [Appellant] was wearing a white t-shirt, blue
jean shorts that came to the knee, and orange and white shell
top sneakers. N.T., 9/11/12 p. 40. The CI left the area and met
with police at a predetermined location. The CI gave police five
1
In Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), our Supreme
Court held “that [the mandatory minimum sentencing prescription under 42
Pa.C.S. §] 9718 is irremediably unconstitutional on its face, non-severable,
and void[,]” in light of Alleyne v. United States, 133 S.Ct. 2151 (2013).
Wolfe, 140 A.3d at 663.
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black packets containing crack cocaine that [Appellant] had sold
him in exchange for the pre-recorded buy money. N.T., 9/11/12
p. 13, 30.
On June 3, 2010, the police returned to 3325 North 22 nd
Street with CI 01195 sometime between 2:15 p.m. and 5:45
p.m. N.T., p. 15, 27. [Appellant] was sitting on the porch.
N.T., 9/11/12 p. 16. [Appellant] was wearing a white t-shirt,
blue jean shorts that came to the knee, and orange and white
shell top sneakers. N.T., 9/11/12 p. 40. This was the identical
clothing and shoes [Appellant] wore the previous day. N.T.,
9/11/12 p. 40. The CI was searched for currency and
contraband and given $20.00 pre-recorded buy money. N.T.,
9/11/12 p. 15. The CI went to 3325 North 22 nd Street, engaged
in a brief conversation with [Appellant] sitting on the porch, and
handed [Appellant] the pre-recorded buy money. N.T., 9/11/12
p. 16. [Appellant] entered the property and remained inside for
a few minutes. N.T., 9/11/12 p. 16. [Appellant] exited the
property and handed the CI unidentified small objects. N.T.,
9/11/12 p. 16. The CI left the area and met with police. N.T.,
9/11/12 p. 16. The CI was searched and possessed four clear
plastic packets containing crack cocaine. N.T., 9/11/12 p. 17.
Officer Cruz observed this transaction. N.T., 9/11/12 pp. 34-36.
Based on these observations, the police applied and obtained a
search warrant for 3325 North 22nd Street. N.T., 9/11/12, pp.
17, 18.
On June 4, 2010, the police set up surveillance at 3325
North 22nd Street. N.T., 9/11/12 p. 18. At approximately 3:55
p.m., [Appellant] arrived in a burgundy Mercury Sable with a
Pennsylvania license plate. N.T., 9/11/12 p. 18. [Appellant]
wore the same clothing from June 2nd and June 3rd. N.T.,
9/11/12 p. 43. [Appellant] and an unidentified black female
exited the vehicle. N.T., 9/11/12 p. 18 and N.T., 9/12/12 p. 65.
[Appellant] used a key to enter the property. N.T., 9/11/12 p.
18. The police arrived soon after to execute the search warrant
and knocked on the door. N.T., 9/11/12 p. 19. An unknown
female began yelling “Country, Country” from the front window
of the property. N.T., 9/11/12 p. 19 and N.T., 9/12/12 pp. 24-
25. The police entered the property and observed [Appellant]
exiting Apartment B located on the first floor towards the rear of
the row home. N.T., 9/11/12., pp. 19, 20, 38. [Appellant] was
stopped midexit. N.T., 9/11/12 pp. 20, 21, 38 and N.T.,
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9/12/12 p. 43. Recovered from his person were: two keys, one
that opened the front door of the house and the other that
opened [A]partment B, and a cell phone.1 N.T., 9/11/12 pp. 20,
21, 38 and N.T., 9/12/12 p. 43. The police called the same
telephone number used by the CI on June 2, 2010, 267-595-
XXXX, and [Appellant’s] phone rang and the word “Country”
appeared on the screen. N.T., 9/11/12 p. 21.
1
[Appellant’s] mother testified that she gave him
the color-coded keys that unlocked the front door of
3325 North 22nd Street and Apartment B. N.T.,
9/12/12 pp. 101-103.
The police entered Apartment B and saw an open can on
the kitchen table. N.T., 9/11/12 p. 22. The can contained one
clear Ziploc packet with red markings on it that contained three
black packets and forty clear packets (identical to the packets
from the purchases of June 2nd and June 3rd 2010), all containing
crack cocaine. N.T., 9/11/12 p. 22 and 9/12/12 pp. 28-29. The
can also contained one clear Ziploc packet with spades on it
containing bulk crack cocaine. N.T., 9/11/12 p. 22. [Appellant]
moved a bed into the bedroom and also had “some of his stuff”
in the apartment. N.T., 9/12/12 pp. 104, 106. On the bed was
one clear Ziploc packet with purple markings with the words
“purple ladies,” containing marijuana. N.T., 9/11/12 p. 22 and
N.T., 9/12/12 p. 29. The police recovered various items in and
on the dresser in the apartment, including a letter with the name
of Country Black, a letter in the name of Monroe Young, a
Pennsylvania identification card with the name Monroe Young
Junior, a semi-automatic handgun with an obliterated serial
number, bullets, and $303.00 in United States currency. N.T.,
9/11/12 p. 22, 24 and N.T., 9/12/12 pp. 30-31, 41-42. The
correspondence was addressed to 3419 North 22nd Street. N.T.,
9/12/12 pp. 41-42.2 The handgun and the bullets were
recovered from the same drawer of the dresser. N.T., 9/12/12
p. 35. A deed with the address of 3325 North 22nd Street listing
the names of Anthony Floyd and Monroe Young was found on the
dresser.3 N.T., 9/12/12 pp. 37-41. There was male clothing
observed inside the drawers of the dresser. N.T., 9/11/12 p. 24.
No other person stayed with [Appellant] in the apartment. N.T.,
9/12/12 pp. 106-107.
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2
[Appellant’s] mother testified that he was residing
at both 3419 North 22nd Street with his mother and
at 3325 North 22nd Street Apartment B. N.T.,
9/12/12 pp. 92-107.
3
The deed was identified as a lease during the
motions hearing on September 11, 2012. This
misidentification was clarified at trial. N.T., 9/12/12
pp. 36-41, 50.
Trial Court Opinion, 12/10/13, at 3-6 (footnotes in original).
On September 12, 2012, at the conclusion of a nonjury trial, Appellant
was convicted of the crimes stated above. On January 3, 2013, the trial
court sentenced Appellant to serve concurrent terms of incarceration of five
to ten years for the conviction of PWID,2 two to five years for the conviction
of VUFA, and one and one-half to three years for the conviction of criminal
use of a communication facility. No further penalty was imposed on the
convictions of possession of controlled substance, PIC, and possession of a
firearm with altered manufacturer’s number.3 Appellant’s post-sentence
motion, which included a challenge to the weight of the evidence, was
denied by operation of law. Appellant then brought a timely appeal.
On September 29, 2014, this Court affirmed the judgment of sentence
in an unpublished memorandum decision. Commonwealth v. Young, 107
2
The trial court sentenced Appellant to a mandatory minimum of five years
of incarceration on his conviction of PWID pursuant to 42 Pa.C.S. § 9712.1.
3
We observe that the United State Supreme Court’s decision in Alleyne
was filed on June 17, 2013, approximately six months after Appellant was
sentenced in this matter.
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A.3d 239, 1663 EDA 2013 (Pa. Super. filed September 29, 2014)
(unpublished memorandum). Specifically, this Court found no merit to
Appellant’s issues challenging (1) whether there was sufficient evidence to
support the verdicts for the gun offense, (2) whether the verdict was against
the weight of the evidence, and (3) whether the trial court erred in imposing
a mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712.1 for
Appellant’s conviction of PWID because he was allegedly not in possession of
the firearm. With regard to the imposition of the mandatory minimum
sentence, this panel relied upon subsection (a) of section 9712.14 and
stated:
Appellant proceeded in a nonjury trial and evidence of the
constructive possession of the firearm was introduced at trial. In
this respect, the trial court, sitting as the finder of fact, found
that Appellant constructively possessed the gun in the dresser.
Trial Court Opinion, 12/10/13, at 7-9. Thus, the trial court, in
4
The relevant portion of the statute provided as follows:
§ 9712.1. Sentences for certain drug offenses committed
with firearms.
(a) Mandatory sentence.--Any person who is convicted of a
violation of section 13(a)(30) of the . . . Controlled Substance,
Drug, Device and Cosmetic Act, when at the time of the offense
the person or the person’s accomplice is in physical possession
or control of a firearm, whether visible, concealed about the
person or the person’s accomplice or within the actor’s or
accomplice’s reach or in close proximity to the controlled
substance, shall likewise be sentenced to a minimum sentence of
at least five years of total confinement.
42 Pa.C.S. § 9712.1(a).
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finding Appellant guilty of the firearm charges, found beyond a
reasonable doubt that Appellant constructively possessed the
firearm, which is an analogue to constructive control, thereby
triggering the mandatory minimum. Accordingly, Appellant’s
contrary argument lacks merit.
Young, 1663 EDA 2013, at 14 (unpublished memorandum).5
Thereafter, on October 29, 2014, Appellant filed with our Supreme
Court a petition for allowance of appeal. In an order filed September 6,
2016, our Supreme Court granted the petition for allowance of appeal
limited to Appellant’s issue pertaining to whether the mandatory sentence
imposed by the trial court was illegal, vacated this Court’s previous decision
in this matter, and remanded to this Court for reconsideration in light of
Wolfe. Commonwealth v. Young, 145 A.3d 1155, 551 EAL 2014 (Pa.
filed September 6, 2016).6 The Supreme Court denied allocatur as to
5
We note that while this matter was initially pending before this panel, our
Court issued its decision in Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc), which found that Alleyne rendered the mandatory
minimum sentencing provision at 42 Pa.C.S. § 9712.1 unconstitutional
because subsection (c) of that statute permitted the trial court to determine
at sentencing whether the elements necessary to increase the mandatory
minimum sentence, i.e., the defendant possessed or was in close proximity
to a firearm while selling drugs, were proven by a preponderance of the
evidence. However, we observe that the defendant in Newman was
convicted by a jury, whereas the Appellant in the instant matter was
convicted by the trial judge serving as the finder of fact.
6
Our Supreme Court’s order provides as follows:
AND NOW, this 6th day of September, 2016, the Petition
for Allowance of Appeal is GRANTED, LIMITED TO the issue set
forth below. Allocatur is DENIED as to all remaining issues.
The issue, rephrased for clarity, is:
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Appellant’s other issues. Because our Supreme Court’s order granted
allowance of appeal only for reconsideration of our decision on the
sentencing issue in light of the Supreme Court’s decision in Wolfe, we
confine our review to that issue.
Appellant’s issue challenges the legality of his sentence, therefore, we
begin by setting forth our standard of review. “Issues relating to the legality
of a sentence are questions of law[; as a result, o]ur standard of review over
such questions is de novo, and our scope of review is plenary.”
Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super. 2013)
(citations omitted). If no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction.
Commonwealth v. Leverette, 911 A.2d 998, 1001 (Pa. Super. 2006)
(citing Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super. 2006)). An
illegal sentence must be vacated. Id.We begin by observing that, in Commonwealth v. Hopkins, 117
A.3d 247 (Pa. 2015), our Supreme Court held the mandatory minimum
sentencing provision under 18 Pa.C.S. § 6317 (requiring a mandatory
Whether the mandatory sentence imposed by the
trial court was illegal pursuant to Alleyne?
The judgment of sentence is VACATED, and the matter is
REMANDED to the Superior Court for reconsideration in light of
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).
Supreme Court Order, 551 EAL 2014, 9/6/16, at 1.
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minimum sentence if certain controlled substances crimes that occurred
within 1,000 feet of a school) to be unconstitutional pursuant to Alleyne,
because the statute required that operative facts be determined by a judge
at sentencing by a preponderance of the evidence. The Court concluded that
the statute could not be made constitutional through severance by the
judiciary. Hopkins, 117 A.3d at 262. In so doing, the Court found the
defective provisions of the statute to be too fundamental to the sentencing
statute to permit severance. See id. at 259-260 (“[I]t cannot be stressed
enough that the legislature intended that Section 6317 be a sentencing
provision and not a substantive offense”) and 262 (“[T]he General Assembly
has made clear that the provisions of Section 6317 are not to be elements of
the crime and no substitute process can fix that.”).
Subsequently, our Supreme Court issued its decision in Wolfe, which
concerned the mandatory minimum sentencing provision under 42 Pa.C.S.
§ 9718 (requiring a mandatory minimum sentence for certain convictions
including involuntary deviate sexual intercourse). In Wolfe, the Court
stated, “[W]e reaffirm our decision in Hopkins in all material respects and
conclude that it applies here.” Wolfe, 140 A.3d at 660. The Court
specifically disavowed the Commonwealth’s argument that Section 9718
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does not require judicial fact-finding and that Section 9718(a),7 standing
alone, is all that is required to impose the mandatory minimum sentence.
Id. Rather, the Court in Wolfe stated:
To the contrary, Section 9718 does plainly and explicitly require
judicial fact-finding in its subsection (c). See 42 Pa.C.S.
§9718(c) (“The applicability of this section shall be determined
at sentencing . . . by a preponderance of the evidence.”).
Moreover, since subsection (c) is integral to the statute, Section
9718(a) does not stand alone.
Id. at 660-661.8 The Wolfe Court ultimately held, “[W]e reaffirm Hopkins
and find that Section 9718 is irremediably unconstitutional on its face, non-
severable, and void.” Id. at 663.
7
42 Pa.C.S. § 9718(a) provided, in relevant part, as follows:
(a) Mandatory sentence.
(1) A person convicted of the following offenses when the victim
is less than 16 years of age shall be sentenced to a mandatory
term of imprisonment as follows:
* * *
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse)-not less than ten years.
42 Pa.C.S. § 9718(a).
8
42 Pa.C.S. § 9718(c) provides as follows:
(c) Proof at sentencing. — The provisions of this section shall
not be an element of the crime, and notice of the provisions of
this section to the defendant shall not be required prior to
conviction, but reasonable notice of the Commonwealth’s
intention to proceed under this section shall be provided after
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During the pendency of our review of this matter via remand, on
December 28, 2016, our Supreme Court filed its decision in
Commonwealth v. Barnes, ___ A.3d ___, 36 EAP 2015, 2016 WL 7449232(Pa. 2016), which addressed the constitutionality of the exact statute
presently before this panel, i.e., 42 Pa.C.S. 9712.1. In Barnes, the
appellant was charged with PWID, possession of a firearm prohibited, and
other related charges. Barnes, at *1. The appellant waived his right to a
jury trial and proceeded to a bench trial. Id. The trial court found him
guilty of the crimes charged. Id. The trial court sentenced the appellant to
a term of incarceration of five to ten years on the PWID conviction, which
conviction and before sentencing. The applicability of this
section shall be determined at sentencing. The court shall
consider any evidence presented at trial and shall afford the
Commonwealth and the defendant an opportunity to present any
necessary additional evidence and shall determine, by a
preponderance of the evidence, if this section is applicable.
42 Pa.C.S. § 9718(c). The unconstitutional language set forth above is
almost identical to the following language utilized in 42 Pa.C.S. § 9712.1(c):
(c) Proof at sentencing. — Provisions of this section shall not
be an element of the crime, and notice thereof to the defendant
shall not be required prior to conviction, but reasonable notice of
the Commonwealth’s intention to proceed under this section
shall be provided after conviction and before sentencing. The
applicability of this section shall be determined at sentencing.
The court shall consider any evidence presented at trial and shall
afford the Commonwealth and the defendant an opportunity to
present any necessary additional evidence and shall determine,
by a preponderance of the evidence, if this section is applicable.
42 Pa.C.S. § 9712.1(c).
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included a five-year mandatory minimum sentence pursuant to 42 Pa.C.S.
§ 9712.1, based on the trial court’s finding that he was in constructive
possession of drugs “in close proximity to” a firearm. Id. No further penalty
was imposed for the other convictions. Id.
The pertinent issue before our Supreme Court in Barnes was whether
the appellant was entitled to resentencing in light of the fact that he failed to
preserve his Alleyne sentencing issue for appeal. Barnes, at *2. Before
embarking on its analysis, the Court in Barnes stated the following:
If we determine that an Alleyne challenge is not waivable
on direct appeal, then [the a]ppellant is entitled to resentencing,
as the Commonwealth concedes that our prior decisions
interpreting Alleyne render Section 9712.1 unconstitutional on
its face. Specifically, in Commonwealth v. Wolfe, we stated
that “[t]he effect of Alleyne’s new rule was to invalidate a range
of Pennsylvania sentencing statutes predicating mandatory
minimum penalties upon non-elemental facts and requiring such
facts to be determined by a preponderance of the evidence at
sentencing.” 140 A.3d 651, 653 (Pa. 2016) (holding 42 Pa.C.S.
§ 9718 violated Alleyne because it required imposition of a ten-
year mandatory minimum sentence for an involuntary deviant
sexual assault conviction based on an additional fact (that the
victim was less than sixteen years of age) found at sentencing
and proven only by a preponderance of the evidence); see also
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (finding
18 Pa.C.S. § 6317 constitutionally infirm for similar reasons).
Section 9712.1, under which [the a]ppellant was sentenced,
contains the identical constitutional infirmities as the now void
provisions at issue in Wolfe and Hopkins. Accordingly, [the
a]ppellant’s sentence violated Alleyne, and our ability to afford
relief rises or falls on issue preservation.
Barnes, at *3.
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After reviewing the pertinent authority related to issue preservation for
challenges to the legality of a sentence, the Barnes Court held that Alleyne
should be applied to cases pending on appeal when Alleyne was decided.
Specifically, the Court stated, “Alleyne declared a new rule of law that was
announced while [the a]ppellant’s direct appeal was pending and which
rendered [the a]ppellant’s mandatory minimum sentence unconstitutional.
Based on this Court’s precedent, [the a]ppellant is entitled to relief.”
Barnes, at *5.
The Court then explained as follows:
Based on the mandatory nature of Section 9712.1, at the time of
sentencing, the sentencing court was without authority to enter
any other sentence. As that sentencing provision has now been
rendered unconstitutional on its face by Hopkins and Wolfe, it
is as if that statutory authority never existed. See Wolfe, 140
A.3d at 661 (quoting 16 C.J.S. CONSTITUTIONAL LAW § 265
(2016)) (“[A]n unconstitutional, non-severable statute is ‘not a
law, has no existence, is a nullity, or has no force or effect or is
inoperative.’”). Accordingly, we hereby adopt the lead opinion in
[Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011) (plurality)]
and definitively hold that where the mandatory minimum
sentencing authority on which the sentencing court relied is
rendered void on its face, and no separate mandatory authority
supported the sentence, any sentence entered under such
purported authority is an illegal sentence for issue preservation
purposes on direct appeal. Thus, [the a]ppellant is entitled to
resentencing notwithstanding his failure to preserve his issue
prior to seeking our review.
As we find that [the a]ppellant’s challenge to his sentence
is not waived, and because the Commonwealth concedes that
[the a]ppellant’s sentence is unconstitutional under Alleyne, we
vacate [the a]ppellant’s judgment of sentence and remand to
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the trial court for resentencing without application of 42 Pa.C.S.
§ 9712.1.
Barnes, at *5. In light of the foregoing precedent by our Supreme Court,
we are constrained to vacate Appellant’s PWID sentence issued by the
sentencing court as it included a mandatory minimum sentence pursuant to
42 Pa.C.S. § 9712.1.
On remand, the trial court is instructed to resentence Appellant on the
PWID conviction without reference to the mandatory minimum sentencing
statute. However, because we are vacating a sentence in a multiple-
conviction case, which may upset the overall sentencing scheme, we vacate
the entire judgment of sentence. See Commonwealth v. Thur, 906 A.2d
552, 569 (Pa. Super. 2006) (explaining that “[i]f our disposition upsets the
overall sentencing scheme of the trial court, we must remand so that the
court can restructure its sentence plan.”); Commonwealth v. Deshong,
850 A.2d 712, 714 (Pa. Super. 2004) (stating that “[w]hen a disposition by
an appellate court alters the sentencing scheme [of a lower court], the entire
sentence should be vacated and the matter remanded for resentencing.”).
See also Commonwealth v. Goldhammer, 517 A.2d 1280 (Pa. 1986)
(explaining that upon remand, the sentencing court may reconsider the
entire sentence where the appellate court’s ruling altered the trial court’s
sentencing scheme.). Hence, we vacate the judgment of sentence and
remand for resentencing. Because our Supreme Court denied Appellant’s
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petition for allowance of appeal regarding Appellant’s remaining issues, our
previous disposition as to those claims stands.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
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