Com. v. Reddy, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MAHMOUD REDDY
Appellant No. 2493 EDA 2013
Appeal from the Judgment of Sentence June 26, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002109-2010
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 23, 2015
Appellant, Mahmoud Reddy, appeals from the June 26, 2013 judgment
of sentence of three to ten years’ incarceration, imposed following his
conviction by a jury of possession of a controlled substance, to wit crack
cocaine, with intent to deliver (PWID).1 After careful review, we affirm
Appellant’s conviction but are constrained to vacate and remand for
resentencing.
The trial court summarized the facts, from the testimony adduced at
trial, as follows.
Philadelphia Police Officer Gerald Passalacqua,
a drug enforcement officer since 1998, a veteran of
“thousands of narcotics surveillances” and credited
with over 10,000 narcotics arrests, testified that on
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1
35 P.S. § 780-113(a)(30).
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January 19, 2010, he was assigned to the
Philadelphia Police Department’s Narcotics Strike
Force. At approximately 10:00 p.m., he was in
plainclothes and in an unmarked police car with his
partner, when he began conducting a surveillance at
the corner of 56th Street and Wyalusing Avenue in
the City of Philadelphia. He described the corner as
being well lit and the neighborhood as being
primarily residential.
He testified that at approximately 10:15 p.m.
he observed [Appellant] exit a bar on the northwest
corner, approximately 45 feet away from his
position. After approximately a minute, a car
approached [Appellant]. A male, later identified as
Mr. Hobson, exited the vehicle and walked over to
[Appellant]. After a brief conversation between the
two men, Mr. Hobson handed [Appellant] money. In
return, [Appellant] reached into the pocket of his
[]blue-hooded sweatshirt and withdrew a clear
plastic sandwich baggie, from which he removed an
item and handed it to Mr. Hobson. Officer
Passalacqua then radioed his back-up officers
instructing them to stop Mr. Hobson’s vehicle.
While still in Officer Passalacqua’s view and in
full view of [Appellant], Officer Garnett, in a marked
police vehicle, stopped Mr. Hobson approximately
one block away and took him into custody. On
seeing this, Officer Passalacqua directed his back-up
officers to also take [Appellant] into custody. In
response, Officer McCauley approached [Appellant]
who, on seeing him, turned and ran back into the
bar with Officer McCauley in pursuit and Officer
Rodriguez following close behind.
In concluding his testimony, Officer
Passalacqua testified that Commonwealth Exhibit C-
12, a clear plastic bag, was similar to the one he
observed [Appellant] remove from his pocket. It
was stipulated by and between counsel that the
Commonwealth’s Exhibit C-12 was a clear plastic bag
containing eight “black Ziplock packets with an off-
white chunky powder” and that one of the packets
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“tested positive for cocaine.” It was also stipulated
that the total weight of the contents of all eight
packets was 3.155 grams.
Police Officer Erick Garnett, a 17 year veteran
police officer, testified that on the evening of January
19, 2010 he was working in full uniform as back up
investigating illegal sales of narcotics. At
approximately 10:20 p.m., at the direction of Officer
Passalacqua, he stopped a Burgundy Toyota at 56th
Street and Girard Avenue and recovered one clear
packet, which later tested positive for cocaine, from
the occupant, William Hobson.
Police Officer Joseph McCauley, a 17 year
veteran police officer, testified that on the evening of
January 19, 2010 he was working in an unmarked
vehicle in full uniform as back up investigating illegal
sales of narcotics, in the area of 56th Street and
Wyalusing Avenue. At approximately 10:15 p.m., he
received a radio call from Officer Passalacqua “to
move in and effect the arrest of persons he observed
in narcotics transactions.” As he approached
[Appellant], [Appellant] turned and ran into the bar.
Following him into the bar, Officer McCauley
observed [Appellant] toss a clear plastic bag into a
trash can just inside the entrance. After taking
[Appellant] into custody, Officer McCauley recovered
$428 in currency from his person.
Police Officer Mauricio Rodriguez, a 16 year
veteran of the Philadelphia Police Narcotics Strike
Force, testified that on January 19, 2010, at
approximately 10:15 p.m., he was working as a
backup officer in full uniform and marked police car,
when he received a radio call from Officer
Passalacqua “to stop a male that was selling --
allegedly was selling narcotics at the -- outside the,
bar, outside the bar at 56th and Wyalusing.” On
arriving he followed Officer McCauley into the bar
and was told to search the trash can for an item
Officer McCauley had seen [Appellant] discard. On
shining his flashlight into the trash can, Officer
Rodriguez recovered a clear plastic bag in plain sight.
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Officer Rodriguez further testified that the
Commonwealth’s Exhibit C-12 was the clear plastic
bag he recovered from the trash can inside the bar.
Trial Court Opinion, 5/21/14, at 4-6 (citations omitted).
The police arrested Appellant and charged him with PWID. On June
30, 2010, Appellant filed an omnibus pre-trial motion, including a motion to
suppress evidence.2 A hearing on Appellant’s motion to suppress was held
before the Honorable Daniel J. Anders on July 8, 2010. Officer Passalacqua
was the only Commonwealth witness to testify at the hearing, and Appellant
did not present any evidence. At the conclusion of the hearing, Judge
Anders recited his findings of fact and conclusions of law before denying
Appellant’s motion. The matter proceeded to a jury trial held March 26-28,
2013. The jury found Appellant guilty of the sole charge of PWID. 3 On June
26, 2013, the trial court sentenced Appellant to a term of incarceration of
three to ten years, applying the mandatory minimum sentence pursuant to
18 Pa.C.S.A. § 7508(a)(3)(i). Appellant filed no post-sentence motion.
Appellant file a timely pro se notice of appeal on July 26, 2013. On August
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2
The motion is not included in the certified record.
3
The trial and sentencing were presided over by the Honorable Charles J.
Cunningham, III.
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26, 2013, the trial court appointed Jennifer Ann Santiago, Esquire, to
represent Appellant in the instant appeal.4
On appeal, Appellant raises the following issues for our consideration.
A. Did the court err in denying Appellant’s motion
to suppress?
B. Did the Commonwealth prove beyond a
reasonable doubt the element of each crime
that appellant was convicted of?
Appellant’s Brief at 3.
In his first issue, Appellant challenges the suppression court’s denial of
his suppression motion based on its conclusion that the police officers had
reasonable suspicion or probable cause to detain him. Id. at 13. When
reviewing a challenge to a trial court’s denial of a suppression motion, we
observe the following principles.
[An appellate court’s] standard of review in
addressing a challenge to the denial of a suppression
motion is limited to determining whether the
suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because the
Commonwealth prevailed before the suppression
court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the
suppression court’s factual findings are supported by
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4
Appellant and the trial court have complied Pennsylvania Rule of Appellate
Procedure 1925. Appellant filed an initial rule 1925(b) statement as part of
his “Motion for an Extension to File a Statement of Matters Complained of
Pursuant to Pa.R.A.P. 1925(b)”. The trial court granted the extension, but
no amended statement was filed by Appellant.
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the record, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous. Where … the appeal of
the determination of the suppression court turns on
allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate
court, whose duty it is to determine if the
suppression court properly applied the law to the
facts. Thus, the conclusions of law of the courts
below are subject to [] plenary review.
Commonwealth v. Garibay, 106 A.3d 136, 138-139 (Pa. Super. 2014) (en
banc), quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)
(internal citations and quotation marks omitted).5
The Commonwealth and the trial court contend Appellant’s suppression
challenge is waived for lack of specificity in his Rule 1925(b) concise
statement. Commonwealth’s Brief at 6; Trial Court Opinion, 5/21/14, at 6.
Appellant’s Rule 1925(b) statement included the following description of this
issue. “The [suppression court] erred when it denied Appellant’s motion to
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5
Our Supreme Court has recently clarified our scope of review when
considering a challenge to a trial court’s suppression ruling as it relates to
“the extent of the record that the appellate court consults when conducting
that review.” In re L.J., 79 A.3d 1073, 1080, (Pa. 2013). The Supreme
Court held that such review is limited to the suppression hearing record, and
“it is inappropriate to consider trial evidence as a matter of course, because
it is simply not part of the suppression record, absent a finding that such
evidence was unavailable during the suppression hearing.” Id. at 1085.
Because prior cases held that a reviewing court could consider the trial
record in addition to the suppression record, the Supreme Court determined
that the more limited scope announced in In re L.J. would apply
prospectively to cases where the suppression hearing occurred after October
30, 2013. Id. at 1088-1089. Instantly, the subject suppression hearing
was held on July 8, 2010. Accordingly, our scope of review includes the trial
testimony in this case.
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suppress.” Appellant’s Motion for an Extension to File a Statement of
Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 10/1/13, at
1, ¶ 1.
Pennsylvania Rule of Appellate Procedure
1925(b)(4) provides in pertinent part: “The
Statement shall concisely identify each ruling or
error that the appellant intends to challenge with
sufficient detail to identify all pertinent issues for the
judge.” Pa.R.A.P. 1925(b)(4)(ii). The comment to
this subsection acknowledges that vagueness is a
“very case specific inquir[y].” However, the comment
explains,
The more carefully the appellant frames the
Statement, the more likely it will be that the
judge will be able to articulate the rationale
underlying the decision and provide a basis for
counsel to determine the advisability of
appealing that issue. Thus, counsel should
begin the winnowing process when preparing
the Statement and should articulate specific
rulings with which the appellant takes issue
and why.
Pa.R.A.P. 1925, cmt.
Commonwealth v. Postie, --- A.3d ---, 2015 WL 663437 at *5-6 (Pa.
Super. 2015) (footnote omitted).
We caution Appellant that this Court has found
claims waived on appeal for failure to specify the
error alleged. See Commonwealth v. Rolan, 964
A.2d 398, 409–10 (Pa. Super. 2008); see also
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.
Super. 2011), appeal denied, 32 A.3d 1275 (Pa.
2011) (“[A] [c]oncise [s]tatement which is too vague
to allow the court to identify the issues raised on
appeal is the functional equivalent of no [c]oncise
[s]tatement at all. The court’s review and legal
analysis can be fatally impaired when the court has
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to guess at the issues raised.”) (citation and internal
quotation marks omitted). [] [H]owever, Pa.R.A.P.
1925(b)(4)(v) provides that “[e]ach error identified
in the Statement will be deemed to include every
subsidiary issue contained therein which was raised
in the trial court[.]”
Commonwealth v. Garvin, 50 A.3d 694, 697, n. 5 (Pa. Super. 2012).
Instantly, the issues developed by Appellant in his brief are the same
as those he advanced during the suppression hearing and as those
addressed by the suppression court and the trial court. We therefore decline
to find waiver, and address the merits of Appellant’s claim.
Appellant’s specific claim is that the Commonwealth, through the
testimony of Officer Passalacqua, failed to establish the police had probable
cause to arrest Appellant because the officer’s experience was limited and
lacked a nexus with the officer’s observations, which were imprecise relative
to the transaction between Appellant and Hobson. Appellant’s Brief at 14-
15.
Looking to the factors for probable cause, the trial
court erred in denying the motion to suppress. First,
and most importantly, the officer testified that he
had only been with the Narcotics Strike Force for two
months prior to this arrest and was completely
unfamiliar with the area of 56th and Wyalusing. …
Given that Passalacqua could not remotely describe
the object for the court, it would be a mere guessing
game as to what Appellant allegedly handed to the
black male. There was absolutely no correlation
made between his training and this one alleged
transaction.
Id.
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“Both the United States and Pennsylvania Constitutions protect citizens
against unreasonable searches and seizures. U.S. Const. Amend. IV; Pa.
Const. Art. I, § 8. To be constitutionally valid, an arrest must be based on
probable cause.” Commonwealth v. Smith, 979 A.2d 913, 916 (Pa.
Super. 2009) (citation omitted), appeal denied, 993 A.2d 901 (Pa. 2010).
Probable cause exists where the facts and
circumstances within the knowledge of the officer are
based upon reasonably trustworthy information and
are sufficient to warrant a man of reasonable caution
in the belief that the suspect has committed or is
committing a crime. In determining whether
probable cause exists, we apply a totality of the
circumstances test.
Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa. Super. 2013)
(internal quotation marks and citations omitted). “The question we ask is
not whether the officer’s belief was correct or more likely true than false.
Rather, we require only a probability, and not a prima facie showing, of
criminal activity. In determining whether probable cause exists, we apply a
totality of the circumstances test.” Commonwealth v. Thompson, 985
A.2d 928, 931 (Pa. 2009) (internal quotation marks and citations omitted,
emphasis in original).
The [Pennsylvania] Supreme Court, [in Thomson]
held that “a police officer’s experience may fairly be
regarded as a relevant factor in determining
probable cause.” [Thompson, supra] at 935.
However, the Thompson Court cautioned courts
that they “cannot simply conclude that probable
cause existed based upon nothing more than the
number of years an officer has spent on the force.
Rather, the officer must demonstrate a nexus
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between his experience and the search, arrest, or
seizure of evidence.” Id. (quoting [Commonwealth
v.]Dunlap, 941 A.2d [671,] 676 [(Pa. 2007)]).
“Indeed, a factor becomes relevant only because it
has some connection to the issue at hand.” Id.
… Thompson involved a single hand-to-hand
transaction. It was under those limited
circumstances [] that the value of police experience
became critical to the probable cause determination.
Because the officer’s observation of the lone
transaction, by itself, did not create probable cause,
the police officer’s experience was necessary to
determine whether probable cause existed. Per
Thompson, that experience has value only if the
officer can demonstrate a nexus between the
experience and the observed behavior. However,
the necessity of establishing that nexus diminishes if
probable cause exists based solely upon the behavior
that the officer observed. In determining whether
probable cause exists:
The time is important; the street location
is important; the use of a street for commercial
transactions is important; the number of such
transactions is important; the place where the
small items were kept by one of the sellers is
important; the movements and manners of the
parties are important.
Thompson, 985 A.2d at 932 (citing
Commonwealth v. Lawson, 309 A.2d 391, 394 []
([Pa.] 1973)).
Delvalle, supra at 1085-1086.
Instantly, despite Appellant’s attempt to diminish the degree of Officer
Passalacqua’s experience and its relevance to his specific observations, the
suppression court found otherwise.
Police officer Passalacqua is an officer that has
17 years experience on the police force. He has
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substantial training in the sales and distribution of
narcotics. He has had more than 6,000 narcotics
arrests and conducted hundreds of surveillance for
drug activity. He is currently assigned for six
months to the narcotics strike force. And previously,
had three and a half years service in narcotics
enforcement. In his view this was a class civic [sic]
hand to hand transaction for narcotics.
He admitted that he is not familiar with the
5600-block of Wyalusing Ave. and has no knowledge
about whether it’s a high crime area or an area
that’s known for narcotics activity. He did testify
that earlier that night at approximately one half
block away he observed what he believed was
another drug transaction that was occurring.
… [B]ased upon the time of the day, the
movement of [Appellant] and Mr. Hobson, the length
of time of their interaction, movement of [Appellant]
after Mr. Hobson’s arrest, police officer Passalacqua’s
training and experience as well as finding that there
is a sufficient nexus between his training, experience
and the observed transaction that there was
probable cause in this matter to stop, detain and
search [Appellant]. And as a result, that there was
no forced abandonment when the seizure occurred.
N.T., 7/8/10, at 39-40.
We conclude the suppression court’s findings are supported by the
record and its legal conclusions are correct. While Officer Passalacqua was
only attached to the drug task force for a short time, his overall experience
with drug law enforcement was much more extensive, including specialized
training, participation in 6,000 narcotics arrests, and hundreds of
surveillances. Id. at 11-12. Additionally, Officer Passalacqua was able to
observe Appellant remove a small object from a plastic baggie, which he
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exchanged for cash from Hobson. Id. at 4-5, 19-20. Officer Passalacqua
noted the quick duration of the transaction with the participants
approaching, conversing, exchanging, and departing within less than a
minute. Id. at 10. Further, Officer Passalacqua related his experience to his
observations, providing a nexus through which to assess the relevance of his
experience.
[B]ased on, one, the first think [sic] I saw was the
hand to hand transaction, the exchange of small
objects for money, which I’ve seen numerous times
in my career. It’s a commonality in drug sales that I
see that type of action. … Second, I base it on my
vast experience in this area as it pertains to open air
drug sales on the streets of Philadelphia.
Id. at 14.
Based on the foregoing, we discern no error by the suppression court
in concluding the police had probable cause to detain Appellant after the
observed transaction and arrest of Hobson. We conclude the suppression
court’s findings are supported by the record and that the totality of the
circumstances, including Officer Passalacqua’s observations viewed in the
light of his experience, support its legal conclusions. See Thompson,
supra; Delvalle, supra. Accordingly, Appellant’s first issue affords him no
relief.
Appellant next challenges the sufficiency of the evidence presented by
the Commonwealth to prove him guilty of PWID. Appellant’s Brief at 16.
A claim impugning the sufficiency of the
evidence presents us with a question of law. …
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The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note
that the facts and circumstances established by the
Commonwealth need not preclude every possibility
of innocence. Any doubts regarding a defendant’s
guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn
from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the finder of
fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
This standard is equally applicable to cases where
the evidence is circumstantial rather than direct so
long as the combination of the evidence links the
accused to the crime beyond a reasonable doubt.
Although a conviction must be based on more than
mere suspicion or conjecture, the Commonwealth
need not establish guilt to a mathematical certainty.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)
(internal quotation marks and citations omitted), appeal denied, 95 A.3d 275
(Pa. 2014).
Instantly, Appellant claims the Commonwealth failed to present
evidence establishing that he was ever in possession of the drugs found on
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Hobson’s person or of the drugs found in the trash can inside the bar where
Appellant fled and was apprehended. Appellant’s Brief at 17.
The elements of PWID are set forth by statute as follows.
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within
the Commonwealth are hereby prohibited:
…
(30) Except as authorized by this act, the
manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a
person not registered under this act, or a practitioner
not registered or licensed by the appropriate State
board, or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit
controlled substance.
35 P.S. § 780-113(a)(30).
To sustain a conviction for PWID, the Commonwealth
must prove both the possession of the controlled
substance and the intent to deliver the controlled
substance. If the contraband is not found on the
appellant’s person, the Commonwealth must prove
that the appellant had constructive possession of the
contraband, which has been defined as the ability
and intent to exercise control over the substance.
The Commonwealth may establish constructive
possession through the totality of the circumstances.
Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa. Super. 2011) (internal
quotation marks and citations omitted), appeal dismissed, 54 A.3d 22 (Pa.
2012).
Appellant supports his argument based on a narrow and misleading
account of the evidence. Appellant’s Brief at 18-19. Appellant claims the
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packets retrieved from the trashcan were in “clear packets” and the drugs
found on Hobson were in a “black tinted packet,” and the fact the packets
are different “does not support the conviction.” Id. at 19. This is a
mischaracterization of the evidence. At trial, the parties stipulated the
contraband found in the bar’s trashcan “was one clear plastic bag with eight
items, which [the police chemist] described as black Ziploc packets ….”
N.T., 3/26/13, at 72 (emphasis added). Thus, there was evidence
correlating the item found on Hobson and the items found in the trashcan.
Appellant also challenges the testimony of Officer McCauley, relative to his
ability to observe Appellant discard an item into the trash, based on
conflicting accounts of the various positions of the individuals and the
trashcans. Appellant’s Brief at 18-19. Such an argument addresses the
credibility of the witnesses, which is the sole province of the factfinder.
Antidormi, supra. As such, Appellant’s claim is more akin to a challenge to
the weight of the evidence. “Where issues of credibility and weight of the
evidence are concerned, it is not the function of the appellate court to
substitute its judgment based on a cold record for that of the trial court.
The weight to be accorded conflicting evidence is exclusively for the fact
finder, whose findings will not be disturbed on appeal if they are supported
by the record.” Commonwealth v. Griffin, 684 A.2d 589, 596 (Pa. Super.
1996) (citations omitted). We will not disturb those findings, which we
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conclude are supported by the record. For these reasons, Appellant’s second
issue also fails.
Notwithstanding our disposition of Appellant’s issues, we discern a
legality of sentencing issue, which we address sua sponte. “[A] challenge to
the legality of the sentence can never be waived and may be raised by this
Court sua sponte.” Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.
Super. 2014). As noted above, the trial court imposed a mandatory
minimum sentence of three years’ incarceration based on a prior offense and
the weight of the cocaine possessed pursuant to 18 Pa.C.S.A.
§ 7508(a)(3)(i).6 In light of recent precedent interpreting the import of the
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6
The statute provides as follows.
§ 7508. Drug trafficking sentencing and
penalties
(a) General rule.--Notwithstanding any other
provisions of this or any other act to the contrary,
the following provisions shall apply:
…
(3) A person who is convicted of violating section
13(a)(14), (30) or (37) of The Controlled Substance,
Drug, Device and Cosmetic Act where the controlled
substance is coca leaves or is any salt, compound,
derivative or preparation of coca leaves … shall, upon
conviction, be sentenced to a mandatory minimum
term of imprisonment and a fine as set forth in this
subsection:
(i) when the aggregate weight of the compound or
mixture containing the substance involved is at least
(Footnote Continued Next Page)
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United States Supreme Court’s ruling in Alleyne v. United States, 133 S.
Ct. 2151 (2013), we conclude the trial court imposed an illegal sentence.
See generally Commonwealth v. Newman, 99 A.3d 86, 89 (Pa. Super.
2014) (en banc); Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super.
2014); Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014).
[I]ssues pertaining to Alleyne go directly to the
legality of the sentence. [] A challenge to the
legality of a sentence … may be entertained as long
as the reviewing court has jurisdiction. [] [I]f no
statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
_______________________
(Footnote Continued)
2.0 grams and less than ten grams; … if at the time
of sentencing the defendant has been convicted of
another drug trafficking offense: three years in
prison and $10,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity;
…
(b) Proof of sentencing.--Provisions of this section
shall not be an element of the crime. Notice of the
applicability 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 conviction and
before sentencing. The applicability of this section
shall be determined at sentencing. The court shall
consider evidence presented at trial, shall afford the
Commonwealth and the defendant an opportunity to
present necessary additional evidence and shall
determine, by a preponderance of the evidence, if
this section is applicable.
…
18 Pa.C.S.A. § 7508.
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correction. An illegal sentence must be vacated.
Issues relating to the legality of a sentence are
questions of law[.] … Our standard of review over
such questions is de novo and our scope of review is
plenary.
Fennell, supra at 15 (internal quotation marks and citations omitted).
Newman and Valentine concluded that unconstitutional portions of
the similarly structured mandatory sentencing statutes at 42 Pa.C.S.A.
§§ 9712, 9712.1, and 9713 were “essentially and inseparably connected,”
rendering the statutes unconstitutional in their entirety. Newman, supra
at 101; Valentine, supra at 811. “Moreover, Newman makes clear that ‘it
is manifestly the province of the General Assembly to determine what new
procedures must be created in order to impose mandatory minimum
sentences in Pennsylvania following Alleyne.’” Valentine, supra at 812,
quoting Newman, supra at 102.
In Fennell, this Court, following the reasoning set forth in Newman
and Valentine, found section 7508 facially unconstitutional and mandatory
sentences imposed thereunder illegal even where the fact triggering the
imposition of the mandatory minimum, to wit the weight of the drugs
possessed by the defendant, was, as was the case here, stipulated to at
trial. Fennell, supra at 20; accord Commonwealth v. Vargas, 108 A.3d
858, 876 (Pa. Super. 2014) (en banc). Accordingly, we are constrained to
vacate the June 26, 2013 judgment of sentence and remand for
resentencing in accordance with this memorandum.
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In sum, we conclude the suppression court committed no error in
denying Appellant’s suppression motion on the basis that the police had
probable cause to arrest Appellant. We further conclude the evidence was
sufficient to establish Appellant possessed the seized contraband and sustain
his conviction for PWID. Accordingly, we affirm appellant’s conviction.
However, we vacate the June 26, 2013 judgment of sentence as illegal, and
remand for resentencing, without consideration of the mandatory minimum,
consistent with this memorandum.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/2015
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