Com. v. Williams, M.

J-S70043-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL WILLIAMS, :
:
Appellant : No. 1422 EDA 2014
Appeal from the Judgment of Sentence Entered September 6, 2013,
in the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001102-2013
BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 16, 2014
Michael Williams (Appellant) appeals from the judgment of sentence
entered September 6, 2013, following his convictions for operating a
methamphetamine laboratory; possession of red phosphorus, etc., with
intent to manufacture a controlled substance; use of, or possession with
intent to use, drug paraphernalia; and manufacture, delivery, or possession
with intent to manufacture or deliver a controlled substance.1 Upon review,
we affirm Appellant’s convictions, vacate Appellant’s judgment of sentence,
and remand for resentencing.
On January 17, 2013, the Easton Police Department charged Appellant
with the above crimes. A jury trial was held from July 8 through July 10,
1
35 P.S. §§ 780-113.4(a)(1), 780-113.1(a)(3), 780-113(a)(32), 780-
113(a)(30), respectively.
* Retired Senior Judge assigned to the Superior Court.
J-S70043-14
2013. During the trial, the Commonwealth presented the testimony of
Inspector Salvatore Crisafulli of the Easton Police Department and Rebecca
Patrick, a lab technician from the State Police Clandestine Drug Laboratory
Response Team. The Commonwealth also submitted numerous exhibits into
evidence, including items found in the garbage at Appellant’s residence,
photographs of the garbage, lab reports, a DVD containing a recording of
Appellant’s police interview, a printout from Meth Check (an online database
containing information tracking the purchase of ephedrine and
pseudoephedrine), and letters written by Appellant to Inspector Crisafulli.
Appellant did not testify at trial.
The trial court summarized the testimony and evidence at trial as
follows:
Inspector Crisafulli testified that on January 16, 2013, he
participated in an investigation related to the manufacture of
controlled substances from a residence identified as 1415 Pine
Street in Easton, Pennsylvania. At approximately 4:00 a.m. that
morning, he participated in a “trash pull,” in which the police
took two bags of trash from three curbside trashcans in front of
1415 Pine Street. The officers brought these bags of trash back
to the station for examination. Inspector Crisafulli testified that
they initially discovered long strips of paper and broken
batteries. There was also a strong, intense chemical odor
coming from the bags, along with a white gas.
The officers contacted the Pennsylvania State Clandestine
Response Team to aid in processing the items and to limit the
hazardous exposure of the officers. The items recovered from
the trash pull included (1) broken batteries, including lithium
strips and battery hulls; (2) a brownish liquid in a Pepsi bottle
marked as “waste[;”] (3) a melted bottle with a white solid
gassing substance; (4) starting fluid; (5) an ammonia test kit
and PH test kit; (6) empty blister packs of pseudoephedrine-
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based medicine; (7) ice packs, which contain ammonia nitrate in
small round balls; and (8) a broken meth pipe.
Inspector Crisafulli further testified that the Easton Police
Department executed a search warrant on [Appellant’s] second-
floor bedroom in the early afternoon of January 16, 2013. The
items seized, memorialized in an inventory receipt and made
part of the record as Commonwealth Exhibit 39, included (1)
packs of cold compresses, which were cut open; (2) a can of
Prestone Starting Fluid, unopened; (3) a box of baking soda; (4)
two containers of salt; (5) a small glass dish and aluminum foil;
(6) an ammonia nitrate test kit; (7) isopropyl alcohol; (8) a full-
mouth facemask respirator; and (9) a box containing meth
pipes. Inspector Crisafulli further testified that some of the
items recovered under the search warrant needed to be
destroyed due to their hazardous nature.
Through Inspector Crisafulli, the Commonwealth
introduced into evidence a DVD containing an audio and visual
recording of a police interview with [Appellant] at the Easton
Police Station after the police officers had executed a search
warrant. Further, the Commonwealth introduced [Appellant’s]
history of purchasing ephedrine/pseudoephedrine products
through a printout of a tracking database, Meth Check.
Inspector Crisafulli testified that the Meth Check database
established that [Appellant’s] last purchase of pseudoephedrine
occurred on January 6, 2013, after which [Appellant] was
blocked from purchasing additional pseudoephedrine for thirty
days. Inspector Crisafulli stated that an individual’s purchase of
pseudoephedrine is limited by law to 9 grams every thirty days.
The Meth Check data base [sic] indicated that [Appellant] had
also made two separate purchases of pseudoephedrine on
December 26, 2012, one at Walmart and the other at Giant.
Finally, the Commonwealth introduced four letters written by
[Appellant] to Inspector Crisafulli, in which [Appellant] discussed
his extensive knowledge of cooking meth, volunteered to aid the
police in investigating local methamphetamine labs, and
critiqued the evidence obtained by the police in the instant case.
[Ms. Patrick] testified as an expert witness at trial in the
field of drug analysis and the hazmat clean-up of meth labs. In
her testimony, the Commonwealth introduced into evidence two
laboratory reports. In her first lab report, Ms. Patrick focused on
evidence obtained through the “trash pull” and gave an overview
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of the one-pot method of meth cooking that is commonly used in
Pennsylvania. Ms. Patrick concluded that the clandestine
manufacturing of methamphetamine was attempted, but
unsuccessful, citing the ignited plastic bottle, which she referred
to as the “cooking vessel,” as evidence that something went
wrong in the manufacturing process. Ms. Patrick testified that
no methamphetamine was found because it appeared that the
cooking process had failed.
Ms. Patrick also testified about the two blister packs of cold
medicine. Ms. Pa[t]rick testified that each blister pack holds 3.6
grams of pseudoephedrine and can be used to generate a one[-]
to[-]one ratio of methamphetamine – 3.6 grams of
pseudoephedrine can produce 3.6 grams of methamphetamine.
The second lab report focused on the items seized from
[Appellant’s] bedroom when the police officers executed the
search warrant. Ms. Patrick went through the inventory list and
explained how some of the items seized could be used to
manufacture methamphetamine. Ms. Patrick concluded that
many of the items found were consistent with the one-pot
method commonly used in Pennsylvania.
During her testimony, Ms. Patrick was presented with a
Pepsi bottle, which was filled with what appeared to be a
brownish liquid. The bottle was marked “waste,” apparently
labeled prior to its seizure by law enforcement. Ms. Patrick
testified that she removed and weighed just the liquid. Then she
tested the liquid for the presence of methamphetamine and
identified the presence of methamphetamine crystals in the
liquid.
On direct and cross-examination, Ms. Patrick
acknowledged that the liquid solution was not entirely
methamphetamine. It also contained the by-products from the
manufacture of methamphetamine. Ms. Patrick testified that
one knowledgeable about the manufacturing process can store
the waste from the manufacturing process to later distill the
solution to retrieve the methamphetamine that is dissolved
within. Further, Ms. Patrick acknowledged that it is possible that
the solution may also have contained urine, as knowledgeable
users can recycle urine to reclaim any methamphetamine that
was not processed by the body. However, Ms. Patrick did not
test the solution for the presence of urine. Further, Ms. Patrick
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did not reduce the liquid solution to measure the weight of only
the methamphetamine. The lab report indicated that the entire
solution weighed 1,340 grams.
The Commonwealth also played the video statement of
[Appellant] for the jury. During his statement, [Appellant]
bragged about his knowledge of the local methamphetamine
market and his experience and talent related to cooking meth.
[Appellant] (and here [the trial court] paraphrase[d]) basically
argued to the police that the meth lab located in the trash bags
was not his work, because the lab was amateurish and beneath
his abilities.
Trial Court Order, 4/15/2014, 2-5 (citations and footnote omitted).
On July 10, 2013, the jury found Appellant guilty of all charges. In so
doing, the jury also concluded that Appellant had manufactured between 5
and 10 grams of methamphetamine.
On September 6, 2013, the trial court sentenced Appellant to an
aggregate 6 ¼ years to 21 years’ incarceration. For the charge of operating
a methamphetamine laboratory, Appellant received a sentence of 35 months
to 120 months of incarceration. For the charge of manufacture, delivery, or
possession with intent to manufacture or deliver a controlled substance,
Appellant received a sentence of 36 months to 120 months of incarceration.
For the charge of use of, or possession with intent to use, drug
paraphernalia, Appellant received a sentence of 4 months to 12 months of
incarceration. For the charge of possession of red phosphorus, etc., with
intent to manufacture a controlled substance, Appellant was sentenced to 24
months to 48 months of incarceration. All of the sentences ran consecutive
to each other, with the exception of Appellant’s sentence for possession of
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red phosphorus, etc., with intent to manufacture a controlled substance,
which was to run concurrent with the other sentences.
On September 6, 2013, Appellant filed post-sentence motions pro se.
On September 9, 2013, defense counsel was discharged, as Appellant raised
complaints of ineffectiveness of counsel, and conflict counsel was appointed
to represent Appellant regarding post-sentence matters.
On September 16, 2013, Appellant filed a pro se notice of appeal to
this Court. Consequently, the trial court found that Appellant’s notice
divested the trial court of jurisdiction and entered an order denying said
motions pursuant to Pa.R.A.P. 1701(a) on September 24, 2013. On or about
December 6, 2013, this Court remanded the matter for purposes of filing
counseled post-sentence motions nunc pro tunc. On March 13, 2014,
Appellant filed his post-sentence motions, which the trial court denied on
April 15, 2014. Appellant then timely appealed to this Court.
On appeal, Appellant presents the following issues for our
consideration:
1. Whether the evidence was insufficient to sustain the
verdict and the verdict was against the weight of the
evidence?
2. (a) Whether the trial court’s consecutive sentencing for
one event in one criminal departure in a [(]although
violating several criminal statutes[)] [sic] 6 ¼ years – 21
years is excessive and does not reflect the conduct of …
Appellant?
(b) Whether the trial court failed to comply with the
requirements of … 18 Pa.C.S.[] §[]7508([b]) which
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requires that all of the provisions of the aforesaid statute
should not be an element of the crime. Therefore, the
sentence is unlawful [pursuant] to [Commonwealth v.
Watley, 81 A.3d 108 (Pa. Super. 2013)]?
3. Whether the court’s instruction and jury verdict slip with
regard to weight of methamphetamine is erroneous?
Appellant’s Brief at 3.
In his first issue, Appellant purports to challenge both the weight and
sufficiency of the evidence supporting his convictions. Nevertheless, his
actual argument appears to be limited to a sufficiency challenge.
Accordingly, we conclude that Appellant has waived his weight claim for his
failure to develop it,2 and we apply the following standard of review:
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
2
This Court has held that an appellant cannot present bald assertions in
support of relief.
It is not for this Court to develop an appellant’s arguments.
Rather, it is the appellant’s obligation to present developed
arguments and, in so doing, apply the relevant law to the facts
of the case, persuade us there were errors, and convince us
relief is due because of those errors. If an appellant fails to do
so, we may find the argument waived.
Commonwealth v. Rush, 959 A.2d 945, 950-51 (Pa. Super. 2008).
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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 trier 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.
Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en
banc) (quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa.
Super. 2008)).
Appellant purports to challenge the sufficiency of the evidence
supporting all four of his convictions; however, in support of his claim,
Appellant presents a general contention that the Commonwealth failed to
prove beyond a reasonable doubt that Appellant possessed the ingredients
that are required to manufacture methamphetamine. To the extent that
Appellant argues that the Commonwealth is required to prove beyond a
reasonable doubt that Appellant possessed every ingredient necessary to
manufacture methamphetamine, we reject such an argument. We are
unaware of, and Appellant fails to cite, any legal authority imposing such a
requirement. Only two of Appellant’s convictions implicate the specific
ingredients needed to manufacture methamphetamine, and they are written
in the disjunctive. Specifically, under The Controlled Substance, Drug,
Device and Cosmetic Act,
A person commits the offense of operating a methamphetamine
laboratory if the person knowingly causes a chemical reaction
involving ephedrine, pseudoephedrine or phenylpropanolamine,
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or any other precursor or reagent substance under section 13.1,
[35 P.S. § 780-113.1,] for the purpose of manufacturing
methamphetamine or preparing a precursor or reagent
substance for the manufacture of methamphetamine.
35 P.S. § 780-113.4(a)(1) (footnote omitted) (emphasis added).
Moreover, 35 P.S. § 780-113.1(a)(3) prohibits the act of
[p]ossessing red phosphorous, hypophosphoric acid, ammonium
sulfate, phosphorous, iodine, hydriodic acid, ephedrine,
pseudoephedrine, lithium, sodium, potassium, sassafras oil,
safrole oil or other oil containing safrole or equivalent, whether
in powder or liquid form, phenylpropanolamine, phenyl acetone,
methylamine, ammonium sulfate, ammonium nitrate or phenyl
acetic acid with intent to manufacture a controlled substance.
Id. (emphasis added).3 Thus, Appellant’s argument is without merit.
Moreover, to the extent that Appellant argues that the Commonwealth
failed to prove beyond a reasonable doubt that Appellant possessed any of
the ingredients needed to manufacture methamphetamine, this argument
3
Appellant was also convicted of violating 35 P.S. § 780-113(a)(30), which
prohibits “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.” Id. Finally, Appellant was
convicted of violating 35 P.S. § 780-113(a)(32), which prohibits
[t]he use of, or possession with intent to use, drug paraphernalia
for the purpose of planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packing, repacking,
storing, containing, concealing, injecting, ingesting, inhaling or
otherwise introducing into the human body a controlled
substance in violation of this act.
Id.
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also fails. The items seized from the trash pull and Appellant’s bedroom
included, inter alia, broken batteries, including lithium strips and battery
hulls; starting fluid; two empty blister packs of pseudoephedrine-based
medicine; ice packs containing ammonium nitrate pellets; baking soda; and
salt containers. N.T., 7/9/2013, at 18-26, 35-43. Further, the information
from the Meth Check database demonstrated Appellant’s history of repeated
purchases of pseudoephedrine or pseudoephedrine-based medicine between
July 2012 and January 2013. Id. at 58-61. Additionally, Inspector Crisafulli
and Ms. Patrick testified as to how several of the seized items, particularly
the starting fluid, lithium strips, ice packs containing ammonium nitrate,
baking soda, pseudoephedrine, and salt, are used in the manufacture of
methamphetamine. Id. at 18-21, 23-26, 140-46. From this direct and
circumstantial evidence, the jury could reasonably conclude that Appellant
possessed the ingredients necessary to manufacture methamphetamine,
particularly the pseudoephedrine listed in 35 P.S. §§ 780-113.1(a)(3) and
780-113.4(a)(1).
Appellant also argues that there is insufficient evidence to prove that
the amount of methamphetamine Appellant manufactured was between 5
and 10 grams. We disagree. The police recovered two blister packs of
pseudoephedrine-based medicine from the trash pull. N.T., 7/9/2013, at 23.
According to Ms. Patrick, each blister pack holds 3.6 grams of
pseudoephedrine, which can be used to generate a one-to-one ratio of
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methamphetamine. Id. at 137. Using simple math, the jury could
reasonably conclude that using the two blister packs of pseudoephedrine,
Appellant manufactured 7.2 grams of methamphetamine, which is within the
5-to-10-gram range found by the jury. Thus, Appellant’s sufficiency-of-the-
evidence claim is without merit.
Appellant next challenges both the discretionary aspects of his
sentence and the legality of his sentence. With regard to his discretionary
aspects of sentence claim, Appellant has failed to include in his brief a
statement pursuant to Pa.R.A.P. 2119(f), and the Commonwealth has
objected to this omission. Commonwealth’s Brief at 15. Appellant,
therefore, has waived this issue. See Commonwealth v. Roser, 914 A.2d
447, 457 (Pa. Super. 2006) (“A failure to include the Rule 2119(f) statement
does not automatically waive an appellant’s [discretionary aspects of
sentencing] argument; however, we are precluded from reaching the merits
of the claim when the Commonwealth lodges an objection to the omission of
the statement.”) (quoting Commonwealth v. Love, 896 A.2d 1276, 1287
(Pa. Super. 2006)).4
4
In the context of his discretionary aspects of sentencing claim, Appellant
argues that his aggregate sentence is in contravention of 42 Pa.C.S.
§ 9756(b)(1). Because this argument actually goes to the legality of his
sentence, we address it here. See Commonwealth v. Hurst, 532 A.2d
865, 869 n.2 (Pa. Super. 1987) (providing that “illegality of sentence is not
waivable and may be raised by this Court sua sponte”).
Under 42 Pa. C.S. § 9756(b)(1), “[t]he court shall impose a minimum
sentence of confinement which shall not exceed one-half of the maximum
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As to Appellant’s challenge to the legality of his sentence, he appears
to argue that the trial court unlawfully imposed a mandatory minimum
sentence pursuant to 18 Pa.C.S. § 7508, which provides, in relevant part:
(4) 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
methamphetamine or phencyclidine or is a salt, isomer or salt of
an isomer of methamphetamine or phencyclidine or is a mixture
containing methamphetamine or phencyclidine, containing a salt
of methamphetamine or phencyclidine, containing an isomer of
methamphetamine or phencyclidine, containing a salt of an
isomer of methamphetamine or phencyclidine 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 five grams
and less than ten grams; three years in prison and a fine
of $15,000 or such larger amount as is sufficient to
exhaust the assets utilized in and the proceeds from the
illegal activity; however, if at the time of sentencing the
defendant has been convicted of another drug trafficking
offense: five years in prison and $30,000 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
sentence imposed.” Appellant was sentenced to an aggregate 6 ¼ to 21
years of incarceration. As 6 ¼ years is less than one-half of 21 years (or
10 ½ years), Appellant’s aggregate sentence does not violate 42 Pa.C.S.
§ 9756(b)(1). Thus, Appellant’s claim in this regard is without merit.
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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. § 7508(a)(4)(i), (b).
In support of his argument, Appellant cites Commonwealth v.
Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc), wherein this Court noted
the effect of Alleyne v. United States, 133 S.Ct. 2151 (2013), on
mandatory minimum sentencing statutes in Pennsylvania:
According to the Alleyne Court, a fact that increases the
sentencing floor is an element of the crime. Thus, it ruled that
facts that mandatorily increase the range of penalties for a
defendant must be submitted to a fact-finder and proven beyond
a reasonable doubt. The Alleyne decision, therefore, renders
those Pennsylvania mandatory minimum sentencing statutes
that do not pertain to prior convictions constitutionally infirm
insofar as they permit a judge to automatically increase a
defendant’s sentence based on a preponderance of the evidence
standard.
Watley, 81 A.3d at 117 (footnote omitted).5
Notably, notwithstanding its observations regarding the
constitutionality of Pennsylvania’s mandatory minimum sentencing statutes
outlined above, the Watley Court upheld the mandatory minimum sentence
in that case, which the trial court imposed pursuant to 42 Pa.C.S. § 9712.1.
Watley, 81 A.3d at 121. The Court did so on the ground that “the factual
predicates for determining the mandatory minimum [had been] proven to a
jury beyond a reasonable doubt.” Id.5
Among those mandatory minimum sentencing statutes listed in Watley is
18 Pa.C.S. § 7508(b). See id. at 117 n.4.
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Here, the factual predicate for imposing the mandatory minimum
pursuant to 18 Pa.C.S. 7508(a)(4)(i) was likewise determined by a jury
under the beyond-a-reasonable-doubt standard.6 Nevertheless, we hold that
Appellant’s sentence is illegal. In so doing, we find this Court’s recent
decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
(en banc) and Commonwealth v. Valentine, __ A.3d __, 2014 WL
4942256 (Pa. Super. filed October 3, 2014) instructive.
In Valentine, this Court aptly discussed the Newman decision as
follows:
In Newman, we reviewed the constitutionality of 42 Pa.C.S.A.
§ 9712.1, which enhances the minimum sentence where a
firearm is found on a drug dealer, an accomplice, or in the
vicinity of the contraband. …
[***]
We explained in Newman that under Alleyne, the factual
predicates for imposition of the § 9712.1 mandatory minimum
sentence (i.e., that the firearm was found on a drug dealer, an
accomplice or in the vicinity of the contraband) “must be pleaded
in the indictment, and must be found by the jury beyond a
reasonable doubt before the defendant may be subjected to an
6
Specifically, the trial court instructed the jury that if it found Appellant
guilty of manufacture, delivery, or possession with intent to manufacture or
deliver a controlled substance, it also must make a determination as to the
weight of the methamphetamine that Appellant manufactured for sentencing
purposes. N.T., 7/10/2013, at 46-47. The trial court also instructed the
jury that it “must agree unanimously that each and every element for each
charge has been proven with proof beyond a reasonable doubt before [it
could] find the defendant guilty,” and provided the jury with a definition of
that standard. Id. at 25-26, 53-54. Moreover, the verdict slip included an
interrogatory as to the weight of methamphetamine Appellant manufactured,
which the jury answered by marking “5 -<10 grams.” See Verdict Slip,
7/10/2013, at 1.
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increase in the minimum sentence.” Concluding that the factual
predicates for imposition of the mandatory minimum sentence
had not been presented to a jury, we vacated the judgment of
sentence.
Notably in Newman, we declined the Commonwealth’s proposed
remedy that we remand for a sentencing jury to determine
beyond a reasonable doubt whether the Commonwealth had
proven the factual predicates for § 9712.1. We explained:
[T]he Commonwealth’s assertion assumes that Subsection
(a) of Section 9712.1, which sets the predicate for the
mandatory minimum sentence, survives constitutional
muster, and that only Subsection (c), which directs that
the trial court shall determine the predicate of Subsection
(a) by a preponderance of the evidence, fails. In other
words, the Commonwealth is contending that we may
sever and retain those parts of Section 9712.1 that are not
constitutionally infirm.... We respectfully disagree.
[***]
We find that Subsections (a) and (c) of Section 9712.1 are
essentially and inseparably connected. Following Alleyne,
Subsection (a) must be regarded as the elements of the
aggravated crime of possessing a firearm while trafficking
drugs. If Subsection (a) is the predicate arm of Section
9712.1, then Subsection (c) is the “enforcement” arm.
Without Subsection (c), there is no mechanism in place to
determine whether the predicate of Subsection (a) has
been met.
{ "pageset": "S29
The Commonwealth’s suggestion that we
remand for a sentencing jury would require this court to
manufacture whole cloth a replacement enforcement
mechanism for Section 9712.1; in other words, the
Commonwealth is asking us to legislate. We recognize that
in the prosecution of capital cases in Pennsylvania, there is
a similar, bifurcated process where the jury first
determines guilt in the trial proceeding (the guilt phase)
and then weighs aggravating and mitigating factors in the
sentencing proceeding (the penalty phase). However, this
mechanism was created by the General Assembly and is
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enshrined in our statutes at 42 Pa.C.S.A. § 9711. We find
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. We cannot do so.
Valentine, 2014 WL 4942256, at *6-*8 (citations omitted) (quoting
Newman, 99 A.3d at 98, 101-02). Thus, in Newman, this Court vacated
and remanded for resentencing without consideration of the mandatory
minimum sentences provided in Section 9712.1. Newman, 99 A.3d at 103.
In Valentine, this Court addressed whether the trial court’s imposition
of mandatory minimum sentences pursuant to 42 Pa.C.S. § 9712 and 42
Pa.C.S. § 9713 was unlawful. Importantly,
the trial court permitted the jury, on the verdict slip, to
determine beyond a reasonable doubt whether Appellant
possessed a firearm that placed the victim in fear of immediate
serious bodily injury in the course of committing a theft for
purposes of the mandatory minimum sentencing provisions of 42
Pa.C.S.A. § 9712(a), and whether the crime occurred in whole or
in part at or near public transportation, for purposes of the
mandatory minimum sentencing provisions of 42 Pa.C.S.A.
§ 9713(a). The jury responded “yes” to both questions.
Valentine, 2014 WL 4942256, at *8. Nevertheless, we observed in
Valentine that
[i]n presenting those questions to the jury, however, we
conclude, in accordance with Newman, that the trial court
performed an impermissible legislative function by creating a
new procedure in an effort to impose the mandatory minimum
sentences in compliance with Alleyne.
The trial court erroneously presupposed that only Subsections
(c) of both 9712 and 9713 (which permit a trial judge to
enhance the sentence based on a preponderance of the evidence
standard) were unconstitutional under Alleyne, and that
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Subsections (a) of 9712 and 9713 survived constitutional
muster. By asking the jury to determine whether the factual
prerequisites set forth in § 9712(a) and § 9713(a) had been
met, the trial court effectively determined that the
unconstitutional provisions of § 9712(c) and § 9713(c) were
severable. Our decision in Newman however holds that the
unconstitutional provisions of § 9712(c) and § 9713(c) are not
severable but “essentially and inseparably connected” and that
the statutes are therefore unconstitutional as a whole.
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.”
Therefore, the trial court lacked the authority to allow the jury to
determine the factual predicates of §§ 9712 and
9713.
Id. (citations omitted) (quoting Newman, 99 A.3d at 101-02). Therefore,
although we recognized that “this Court has upheld sentences imposed
under various mandatory minimum sentencing provisions rendered
unconstitutional by the Alleyne decision,” such as in Watley, we vacated
and remanded for resentencing without consideration of the mandatory
minimum sentences in sections 9712 and 9713. Id. at 9 & n.4.
Based on the foregoing, we likewise hold that, here, the trial court
impermissibly attempted to “cure” the constitutional defects of section 7508
by submitting the question of weight of methamphetamine to the jury to be
determined using the beyond-a-reasonable-doubt standard.7 As such, we
7
In Appellant’s final issue, he argues that the trial court’s instruction and the
jury verdict slip are erroneous “with regard to [the] weight of
methamphetamine.” Appellant’s Brief at 15. For the reasons already stated
herein, we agree that the jury instructions and verdict slip, as they pertain
to the jury’s determination of weight of methamphetamine manufactured
beyond a reasonable doubt, are improper.
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J-S70043-14
vacate Appellant’s sentence and remand for resentencing without
consideration of the mandatory minimum sentences provided in
section 7508.
Convictions affirmed. Judgment of sentence vacated. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2014
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