Com. v. Walker, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DARYLE MAURICE WALKER,
Appellant No. 343 MDA 2014
Appeal from the Judgment of Sentence September 27, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000250-2013
BEFORE: BOWES, WECHT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 08, 2014
Daryle Maurice Walker appeals from the judgment of sentence of three
to six years incarcaration imposed by the trial court after a jury found him
guilty of possession with intent to deliver (“PWID”) 3.3 grams of cocaine.
After careful review, we are constrained to vacate the judgment of sentence
and remand for resentencing.
Troopers Shawn Wolfe and Christopher Keppel, utilizing a confidential
informant (“CI”), set up a controlled drug buy for an eight ball of cocaine on
September 11, 2012. The CI was searched and provided with pre-recorded
money to make the purchase. Trooper Keppel observed the CI enter a dark
BMW. The only other individual in the car was the driver, who at that time
Trooper Keppel could only describe as an African-American male. The CI
returned to Trooper Keppel’s vehicle and provided him with the cocaine the
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CI purchased. The amount of cocaine was 3.3 grams, and Appellant
stipulated at trial to the weight of the drugs involved.
Trooper Keppel watched the vehicle before it left his view for a brief
period. He then passed the vehicle and recognized the driver as Appellant.
Trooper Keppel had known Appellant since 2005 or 2006. Similarly,
Trooper Wolfe knew Appellant since 2007. In addition, Trooper Wolfe set up
surveillance for the drug buy from a different vantage point. He witnessed
the CI walking towards his location. Trooper Wolfe then saw Appellant drive
by in a dark BMW and pull over. According to Trooper Wolfe, he observed
the CI enter the car with Appellant, who was fifteen to twenty yards away.
Trooper Wolfe maintained that the CI did not interact with any other
individuals before returning to Trooper Keppel’s location. Following the CI’s
exit of Appellant’s vehicle, Trooper Wolfe followed Appellant and obtained his
license plate number. The vehicle was registered to Appellant’s mother.
Since trial in this matter took place after Alleyne v. United States,
133 S. Ct. 2151 (2013), the Commonwealth, without objection, requested
that the jury be asked to determine the amount of drugs involved. As
noted, Appellant did not dispute the amount of drugs recovered and, in fact,
stipulated that the weight of the drugs was 3.3 grams. At the time,
Appellant was aware of the Alleyne decision. The jury found Appellant
guilty and, consistent with the stipulation, indicated that the amount of
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cocaine recovered weighed between two and ten grams. The trial court
sentenced Appellant to a mandatory minimum.
Appellant filed a timely post-sentence motion on October 2, 2013,
contending that his mandatory sentence was illegal because the statute
removed the court’s sentencing discretion. No specific Alleyne challenge
was forwarded. In addition, Appellant raised a weight of the evidence claim.
The court did not enter an order denying the motion and Appellant filed a
notice of appeal on February 20, 2014. The trial court directed Appellant to
file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Appellant complied, and the trial court issued a short order
directing this Court to the transcript of Appellant’s trial and sentencing.
In the meantime, this Court ordered Appellant to show cause why his
appeal should not be dismissed as premature. Appellant filed an answer
indicating that he filed a praecipe with the trial court to enter an order
denying his post-sentence motion by operation of law. On May 21, 2014,
the court entered that order. Thus, this appeal is properly before this Court.
Pa.R.A.P. 905(a)(5). Appellant now raises the following issues on appeal.
I. The mandatory sentence of three to six years as imposed
by th[e] Honor[a]ble [Court] was unconstitutional in that
such a mandatory sentence by th[e] Honorable Court
[removed] any discretion in imposing sentence and vests
with the Commonwealth all sentencing authority.
II. The jury’s verdict was against the greater weight of the
evidence so as to shock one’s conscience on the following
grounds: the evidence presented at trial clearly established
that the Commonwealth witnesses could not have made a
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reliable identification of the Defendant in that there [sic]
view was obstructed; the evidence presented at trial
clearly established that the Commonwealth witnesses
could not have made a reliable identification of the
Defendant in that they did not observe the individual for
sufficient amount of time; other than the unreliable
identification of the Defendant, there is no other
competent evidence that the Defendant committed the
offense.
III. The evidence at trial was insufficient to support the jury
verdict and therefore th[e] Honorable Court erred in not
arresting judgment and vacating the judgment of sentence
on the following grounds: the evidence presented at trial
clearly established that the Commonwealth witnesses
could not have made a reliable identification of the
Defendant in that there [sic] view was obstructed; the
evidence presented at trial clearly established that the
Commonwealth witnesses could not have made a reliable
identification of the Defendant in that they did not observe
the individual for sufficient amount of time; other than the
unreliable identification of the Defendant, there is no other
competent evidence that the Defendant committed the
offense.
Appellant’s brief at 5.
Since a sufficiency claim would entitle Appellant to complete discharge,
we address that issue at the outset. Commonwealth v. Stokes, 38 A.3d
846 (Pa.Super. 2012). In conducting a sufficiency of the evidence review,
we view all of the evidence admitted, even improperly admitted evidence.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).
We consider such evidence in a light most favorable to the Commonwealth
as the verdict winner, drawing all reasonable inferences from the evidence in
favor of the Commonwealth. Id. When evidence exists to allow the fact-
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finder to determine beyond a reasonable doubt each element of the crimes
charged, the sufficiency claim will fail. Id.
The evidence “need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented.”
Id. In addition, the Commonwealth can prove its case by circumstantial
evidence. Where “the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the combined
circumstances[,]” a defendant is entitled to relief. This Court is not
permitted “to re-weigh the evidence and substitute our judgment for that of
the fact-finder.” Id.
Appellant asserts that the troopers’ identification testimony “must be
viewed with caution in that both [t]roopers only had a brief period of time to
view the individual and their views [were] obstructed by tinted windows,
which rendered them in a position not to have a good opportunity to view
the individual.” Appellant’s brief at 16.1 Here, the troopers identified
Appellant as the person in the BMW and described how they observed him.
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1
We note with disapproval that Appellant has argued that the
Commonwealth must prove that he possessed a firearm and that the
evidence was insufficient to support an indecent assault and corruption of
minors charge, none of which is relevant to this appeal. Further, we voice
our displeasure that the Commonwealth has failed to file a timely brief in
this matter. This is especially disconcerting where the defendant was
sentenced to a mandatory minimum sentence, and the state of the law in
that area is in flux.
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The jury was free to accept this testimony and believe that the troopers did
not mistakenly identify him. Appellant’s sufficiency claim is without merit.
Appellant’s second challenge is to the weight of the evidence. Since a
successful weight claim would warrant a retrial and render any sentencing
challenge moot, we address that issue before reaching Appellant’s
sentencing argument. A weight claim must be preserved in a timely post-
sentence motion. Commonwealth v. Lofton, 57 A.3d 1270, 1273
(Pa.Super. 2012). “Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence.” Commonwealth v. Clay, 64 A.3d
1049, 1055 (Pa. 2013) (italics in original). Accordingly, “[o]ne of the least
assailable reasons for granting or denying a new trial is the lower court's
conviction that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.” Id.
A trial judge should not grant a new trial due to “a mere conflict in the
testimony or because the judge on the same facts would have arrived at a
different conclusion.” Id. Instead, the trial court must examine whether
“‘notwithstanding all the facts, certain facts are so clearly of greater weight
that to ignore them or to give them equal weight with all the facts is to deny
justice.’” Id. Only where the jury verdict “is so contrary to the evidence as
to shock one's sense of justice” should a trial court afford a defendant a new
trial. Id. A weight of the evidence issue concedes that sufficient evidence
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was introduced. Commonwealth v. Charlton, 902 A.2d 554, 561
(Pa.Super. 2006).
Appellant’s weight claim is devoid of any merit. The only testimony in
this case was provided by the Commonwealth witnesses: Troopers Wolfe and
Keppel. Their testimony was consistent with one another and they did not
contradict themselves. There were simply no facts to weigh against the
testimony of the troopers. Rather, Appellant’s position hinges on this Court
rejecting the jury’s credibility determination that the troopers testified
accurately. Since there is not a conflict in the evidence, Appellant’s issue
fails.
Appellant also now contends that his sentence is unconstitutional
under Alleyne.2 He contends for the first time, despite Alleyne having
been decided at the time of Appellant’s trial, that Alleyne requires the facts
necessary to invoke a mandatory sentence be included in the criminal
information. Since the weight of the drugs, though stipulated to and decided
by the jury on its verdict slip without objection, was not set forth in the
information, Appellant maintains that his sentence is illegal.
Admittedly, this Court has opined that various Alleyne-type
challenges to mandatory minimum sentences present illegal sentencing
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2
Appellant’s argument below was not that his sentence violated Alleyne to
the extent that his jury trial rights were violated, but that removing a court’s
discretion to sentence is unconstitutional.
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questions. Commonwealth v. Fennell, 2014 PA Super 261;
Commonwealth v. Newman, 99 A.3d (Pa.Super. 2014) (en banc);
Commonwealth v. Valentine, 2014 Pa. Super. 220; Commonwealth v.
Lawrence, 99 A.3d 116 (Pa.Super. 2014); Commonwealth v. Matteson,
96 A.3d 1064 (Pa.Super. 2014); Commonwealth v. Thompson, 93 A.3d
478 (Pa.Super. 2014); Watley, supra; Commonwealth v. Munday, 78
A.3d 661 (Pa.Super. 2013).3
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3
The Pennsylvania Supreme Court has granted allowance of appeal to
determine whether an Alleyne issue presents a non-waivable illegal
sentencing question. Commonwealth v. Johnson, 93 A.3d 806 (Pa.
2014). In addition to Alleyne-related issues, in a host of other cases, we
have construed various mandatory minimum sentencing claims as legality of
sentence questions. See Commonwealth v. Akbar, 91 A.3d 227
(Pa.Super. 2014); Commonwealth v. Armstrong, 74 A.3d 228 (Pa.Super.
2013); Commonwealth v. Baker, 72 A.3d 652 (Pa.Super. 2013);
Commonwealth v. Hopkins, 67 A.3d 817 (Pa.Super. 2013);
Commonwealth v. Hawkins, 45 A.3d 1123 (Pa.Super. 2012);
Commonwealth v. Stein, 39 A.3d 365 (Pa.Super. 2012), disapproved on
other grounds by, Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013);
Commonwealth v. Stokes, 38 A.3d 846 (Pa.Super. 2012);
Commonwealth v. Poland, 26 A.3d 518 (Pa.Super. 2011);
Commonwealth v. Kittrell, 19 A.3d 532 (Pa.Super. 2011);
Commonwealth v. Carpio-Santiago, 14 A.3d 903 (Pa.Super. 2011);
Commonwealth v. Madeira, 982 A.2d 81 (Pa.Super. 2009);
Commonwealth v. McKibben, 977 A.2d 1188 (Pa.Super. 2009);
Commonwealth v. Foster, 960 A.2d 160 (Pa.Super. 2008), affirmed, 17
A.3d 332 (Pa. 2011) (OAJC); Commonwealth v. Rush, 959 A.2d 945
(Pa.Super. 2008); Commonwealth v. Love, 957 A.2d 765 (Pa.Super.
2008); Commonwealth v. Diamond, 945 A.2d 252 (Pa.Super. 2008);
Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super. 2007);
Commonwealth v. Harley, 924 A.2d 1273 (Pa.Super. 2007);
Commonwealth v. Johnson, 920 A.2d 873 (Pa.Super. 2007);
Commonwealth v. Littlehales, 915 A.2d 662 (Pa.Super. 2007);
Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super. 2006);
(Footnote Continued Next Page)
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In Watley, we sua sponte raised and rejected an Alleyne issue. We
held that non-compliance with Alleyne, which had not yet been decided at
the time of Watley’s trial or sentencing, was harmless and that the
defendant’s sentence was not illegal. There, the defendant was convicted by
the jury of both possessing a firearm illegally and possession with intent to
deliver drugs. The firearm and drugs were found together in the front
passenger area of the car. The applicable mandatory sentencing statute
related to firearms being in close proximity to drugs. Relying on United
States Supreme Court precedent discussing harmless error for Apprendi
violations, see United States v. Cotton, 535 U.S. 625 (2002), we held
that, because the facts necessary to determine the mandatory sentence
_______________________
(Footnote Continued)
Commonwealth v. Bell, 901 A.2d 1033 (Pa.Super. 2006);
Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001);
Commonwealth v. Wynn, 760 A.2d 40 (Pa.Super. 2000), reversed on
other ground, 786 A.2d 202 (Pa. 2001); see also Commonwealth v.
Vasquez, 744 A.2d 1280 (Pa. 2000) (Commonwealth’s issue on appeal,
regarding failure to impose a mandatory fine under 18 Pa.C.S. § 7508, was
non-waivable illegal sentencing claim); Commonwealth v. Eisenberg, 98
A.3d 1268 (Pa. 2014) (constitutional challenge to mandatory minimum fine
was illegal sentencing question); Commonwealth v. Jacobs, 900 A.2d 368
(Pa.Super. 2006) (en banc) (noting in dicta that certain mandatory minimum
sentencing claims present legality of sentence issues).
In Commonwealth v. Williams, 787 A.2d 1085 (Pa.Super. 2001), a
panel of this Court did hold that a constitutional challenge to 42 Pa.C.S.
§ 9712, based on it violating the defendant’s jury trial rights, was a
discretionary sentencing claim. That decision is no longer valid in light of
decisions such as Newman. Of course, in Commonwealth v. Lawrence,
99 A.3d 116 (Pa.Super. 2014), this Court held that constitutional challenges
based on equal protection and ex post facto claims, relative to a mandatory
minimum statute, did not present non-waivable illegal sentencing questions.
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were undisputed, overwhelming, and decided by the jury, no Alleyne error
occurred.
Subsequently, in Munday and Thompson, this Court concluded that
an Alleyne claim was non-waivable and meritorious where the jury did not
decide the facts necessary to impose the mandatory sentence. In Munday,
Thompson, and Watley, Alleyne had been decided after the defendants
were sentenced.
In Newman, this Court found that because mandatory minimum
sentencing challenges ordinarily present illegal sentencing questions, and
that Apprendi v. New Jersey, 530 U.S. 466 (2000) issues have been held
to implicate the legality of a sentence, the Alleyne issue in that case was a
non-waivable illegal sentencing claim. Newman involved a case where the
defendant’s trial, sentencing and original appeal were decided prior to
Alleyne. However, shortly after the original panel decision in Newman, the
United States Supreme Court handed down Alleyne, and the defendant
successfully sought re-argument.
The Newman Court not only treated the Alleyne argument as an
illegal sentencing claim, but also reached an issue of severability that had
not been leveled below. Like Munday, and unlike Watley, the jury’s verdict
in Newman did not reveal that it found the facts needed to prompt the
mandatory. As in Watley, the triggering facts for the mandatory sentence
related to whether a firearm was in close proximity to drugs.
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Although recognizing that an Alleyne issue could be considered under
a harmless error analysis, the Newman Court found that the failure of the
jury to expressly determine whether the gun in that case was in close
proximity to drugs precluded a harmless error finding. Thus, Newman was
distinguishable from this Court’s other recent en banc decision in Watley.
The Newman majority further declined to remand for the empaneling of a
second sentencing jury, finding that such a procedure would violate the
separation of powers doctrine. In doing so, it ruled that the firearms
mandatory statute, 42 Pa.C.S. § 9712.1, was unconstitutional in its entirety
and not merely the section governing a court’s burden of proof. In short, it
held that the mandatory statute was not severable.
In Valentine, supra, this Court expanded Newman to prevent the
Commonwealth from submitting to the jury facts not included as an element
of the offense but set forth in the mandatory sentencing statutes. There, in
a post-Alleyne case, the Commonwealth amended its criminal information
to include whether the defendant visibly possessed a gun and the offense
occurred in or near a place of public transportation. Without objection, the
jury was presented with specific jury interrogatories as to those facts. The
jury found each fact beyond a reasonable doubt.
While the defendant did not preserve at the trial level any Alleyne
challenge, despite Alleyne having been decided at the time of trial and
sentencing, (unlike Watley), the Valentine Court declared that the
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defendant’s sentencing claim was not waivable based on Watley. It then
declined to follow Watley’s harmless error analysis in light of Newman and
ruled that Newman rendered both mandatory sentencing statutes in
question therein, 42 Pa.C.S. § 9712 and 42 Pa.C.S. § 9713, unconstitutional
in their entirety. Without addressing that the defendant’s jury trial rights
were not infringed under Alleyne and that the court could have otherwise
lawfully imposed the sentence in question, it remanded for resentencing. 4
Subsequently, in Commonwealth v. Bizzel, 2014 PA Super ___, a
panel of this Court decided that 18 Pa.C.S. 6317 was unconstitutional in its
entirety based on Newman. That statute provided a mandatory minimum
based on delivery or possession with intent to deliver drugs within a school
zone. In Bizzel, the fact triggering the mandatory was neither stipulated to
nor determined by the jury. There, however, the defendant had preserved
his Alleyne-styled arguments at the trial level, noting that at the time of
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4
This author has disagreed with the rationale of both Newman and
Valentine. See Commonwealth v. Bizzel, 2014 PA Super __ (Bowes, J.,
concurring); Commonwealth v. Wolfe, 2014 PA Super ___ (Bowes, J.,
concurring). Speaking for myself, I continue to adhere to the views
expressed in those secondary opinions. I strongly disagree that the
mandatory sentencing statutes are not severable and believe this case
proves yet another example of why the statute is severable. Absent
Newman and Valentine, it is evident that there is no sentencing error
since Appellant’s jury trial rights were not violated and the jury determined
beyond a reasonable doubt all the facts necessary for his sentence. See
also Commonwealth v. Matteson, 96 A.3d 1064 (Pa.Super. 2014)
(opinion by Musmanno, J.).
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sentencing therein, the Alleyne case was pending before the Supreme
Court.
In Fennell, supra, we concluded that a sentence under the same
statute at issue herein was illegal where, as here, the defendant stipulated
to the weight of the drugs involved. Further, in Commonwealth v. Wolfe,
2014 PA Super ___, this Court ruled that a sentence was illegal where the
court sentenced the defendant to a mandatory minimum under 42 Pa.C.S.
§ 9718. But see Matteson, supra. There, the fact that implicated the
mandatory statute was already an element of the offense; namely, the age
of the victim. However, in light of Newman and Valentine, we ruled that
resentencing was required. We did so despite the defendant not raising any
Alleyne challenge below or on appeal.
Appellant does not argue that § 7508 is non-severable or that allowing
the jury to decide the weight of the drugs violated the separation of powers
doctrine. Instead, Appellant maintains that his sentence is unconstitutional
because the criminal information did not include the weight of the drugs. As
mentioned, Appellant not only failed to object, but stipulated to the weight
of the drugs and agreed to allow the court to instruct the jury on the drug
weight. Assuming arguendo that this aspect of his argument is waived, as
discussed, Newman, Valentine, Bizzel, Fennell, and Wolfe render
mandatory sentencing statutes, not pertaining to prior convictions,
unconstitutional as a whole. Hence, a question arises as to whether
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Appellant’s sentence is “illegal” under those precedents.5 Absent the
mandatory sentencing statute, Appellant could still have been sentenced to
the period of incarceration provided in this case. This case does not present
a situation where the court lacked statutory or constitutional authority for its
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5
This Court has recognized the difficulties of both this Court and our
Supreme Court in agreeing upon a settled definition of an illegal sentencing
claim. Commonwealth v. Tobin, 89 A.3d 663 (Pa.Super. 2014);
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en banc).
Speaking for myself, I share the sentiments of the learned Justice Thomas
Saylor that there is some flexibility in whether a sentence is illegal and
believe careful consideration on an issue by issue basis is warranted to
determine whether a sentencing issue raises an unlawful sentence per se.
See Commonwealth v. Foster, 17 A.3d 332, 355-356 (Pa. 2011) (OAJC)
(Saylor, J., concurring). If I were writing on a clean slate, I would be
hesitant to hold that every issue that implicates a mandatory minimum
sentencing statute is automatically an illegal sentencing claim.
Indeed, my own view is that there is an important distinction between
pre-Alleyne mandatory challenges, where judges were sentencing based on
essential facts connected to the crime that were not determined by a jury,
and post-Alleyne sentencing cases. In the latter situation, I believe any
issue should be preserved because courts and the Commonwealth were
attempting to comply with that decision, thereby eliminating the
constitutional jury trial problem. Hence, the grounds for why a sentence
would be a constitutionally infirm are simply not the same in the pre-
Alleyne cases. Phrased differently, in the pre-Alleyne cases, there is an
alleged and in some cases actual constitutional violation, based on an
intervening change in the law, in combination with a lack of discretionary
authority on the part of the sentencing judge. In post-Alleyne cases, the
constitutional jury trial violation is generally no longer a concern. The
absence of discretion in sentencing, in my view, does not automatically
equate to an illegal sentencing issue. Even in Commonwealth v. Foster,
960 A.2d 160 (Pa.Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011) (OAJC), in
addition to the lack of judicial discretion, there was a violation of the
statutory language interpreted by intervening Pennsylvania Supreme Court
case law. In this case, the defendant was afforded greater protections than
the statute afforded and no constitutional right was violated.
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sentence. We recognize that in Commonwealth v. Foster, 960 A.2d 160
(Pa.Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011) (OAJC), a decision I
authored, this Court did not find dispositive, on the issue of whether the
claim was a legality of sentence question, the fact that the defendant could
be sentenced to the same period of incarceration absent the mandatory
sentencing statute. Unlike Foster, where the sentence unequivocally
violated the Pennsylvania Supreme Court’s pronouncement in
Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007), this sentence does
not violate Alleyne, the intervening change in the law in question, or the
plain language of the statute. Cf. Commonwealth v. Taylor, __ A.3d __
(Pa. 2014) (filed November 20, 2014) (failure to order mandatory drug and
alcohol assessment prior to sentencing, in violation of statutory language,
presented legality of sentence issue).
This case also is distinguishable from Newman and Bizzel. Unlike
both those cases, there is no factual dispute as to the weight of the cocaine
involved. Appellant here, post-Alleyne, stipulated to the weight of the
drugs. Thus, as in Watley, the evidence was undisputed and decided by the
jury beyond a reasonable doubt. Nevertheless, the procedure adopted by
the Commonwealth, though consistent with the general practice in this
Commonwealth regarding Apprendi issues, see Commonwealth v.
Mobley, 14 A.3d 887 (Pa.Super. 2011), was considered unconstitutional by
this Court in Valentine.
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The distinction between this case and Valentine is that herein the
mandatory triggering fact was stipulated to, i.e., the defendant admitted the
fact. Therefore, similar to Watley, and contrary to Newman, there is no
jury trial right violation and the sentence did not violate Alleyne. Of course,
in light of Valentine, the jury being instructed to determine the weight of
the drugs was a separation of powers violation.6 However, Appellant
admitted to the weight of the drugs by stipulating to its amount. He did so
with full knowledge of the Alleyne decision. Therefore, any separation of
powers problem is harmless. Nonetheless, the sentencing statute is no
longer constitutionally valid. See Bizzel, supra; cf. Newman, supra;
Wolfe, supra. More importantly, in Fennell, supra, we ruled a mandatory
sentence under the identical statute at issue illegal despite the defendant
stipulating to the weight of the drugs. Accordingly, we are forced to
conclude that reading Newman, Valentine, Fennell, and Wolfe, together
mandates that Appellant be resentenced.
We find no meaningful distinction between the situation where the jury
finds an element beyond a reasonable doubt or is instructed to find facts
included in the mandatory statute that aggravate the crime and does so, and
where the defendant admits to the fact by stipulation. In each of these
situations, there is no jury trial right violation under Alleyne, but our prior
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6
We note that this Court has never held that a similar procedure used to
comply with Apprendi issues violated the separation of powers doctrine.
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decisions have still required resentencing where the defendant was
sentenced to a mandatory under a wholly unconstitutional statute. Thus, we
are constrained to vacate Appellant’s sentence.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge Musmanno joins the Memorandum.
Judge Wecht Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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