Com. v. Pennington, J.

J-S79013-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JACK D. PENNINGTON,
Appellant No. 3012 EDA 2013
Appeal from the Judgment of Sentence entered October 11, 2013,
in the Court of Common Pleas of Montgomery County,
Criminal Division, at No(s): CP-46-CR-0006758-2012
BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 18, 2014
Jack Pennington (“Appellant”) appeals from the judgment of sentence
imposed after a jury convicted him of three counts of delivery of a controlled
substance, two counts of possession with intent to deliver
methamphetamine, one count of possession with intent to deliver Percocet,
five counts of dealing in unlawful proceeds, four counts of criminal use of a
communications facility, and one count of possession of drug paraphernalia.1
After careful review, we vacate and remand for resentencing.
The trial court summarized the pertinent facts and procedural history
as follows:
____________________________________________
1
35 P.S. § 780-113(a)(16) and (30), 18 Pa.C.S.A. §§ 5111(a)(1), 7512(a),
and 35 P.S. § 113(a)(32).
* Retired Senior Judge assigned to Superior Court.
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[T]he Narcotics Enforcement Team of the Montgomery
County Detective Bureau conducted a wiretap investigation into
Appellant’s involvement in the sale of methamphetamine and
Percocet. As a result of that investigation, Appellant, a retired
detective sergeant with the Norristown Police Department, was
arrested on June 19, 2012, in connection with several drug
transactions.
At the preliminary hearing on August 28, 2012, Detective
James Vinter, the lead detective of the investigation, testified
that on June 19, 2012, surveillance observed Appellant meet
with his drug source in the parking lot of the Plymouth Meeting
Mall. Appellant exited his vehicle, and went over to the van his
drug source was in. Appellant leaned into the driver’s side
window of the van for several seconds. Believing that a drug
transaction occurred, the surveillance officers moved in to
effectuate an arrest. Appellant was taken into custody and both
Appellant’s vehicle and the van were searched. It was stipulated
at the preliminary hearing that in the van 82.85 grams of
methamphetamine was found. A search of Appellant’s vehicle, a
Cadillac, in relevant part revealed a fully loaded .38 caliber
Smith and Wesson handgun. Percocet pills and
methamphetamine were also found in the Cadillac.
Additionally, the criminal complaint and the accompanying
affidavit of probable cause, which was sworn to and verified on
July 27, 2012, lists in pertinent part that a search of Appellant’s
vehicle uncovered a Smith and Wesson .38 handgun,
approximately 102.99 grams of Percocet and methamphetamine.
It further delineated the items recovered from a search of the
Chevrolet van, which included in relevant part, 82.85 grams of
methamphetamine.
On July 18, 2013, a suppression hearing was held. ...
[T]he Commonwealth made a motion to amend the bills of
information in light of [the] pronouncement of the United States
Supreme Court in Alleyne v. United States, –––U.S. –––, 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013). The Commonwealth noted
that there were several mandatories involved in this case,
namely the 82.25 grams of methamphetamine, the 102.2 grams
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of Percocet and the firearm mandatory.[2] The Commonwealth
wanted to amend the bills of information to reflect the weight of
the drugs and the presence of the firearm. Defense counsel
objected to the Commonwealth’s request, arguing that allowing
the Commonwealth to amend was adding new and additional
charges. [The trial court] took the issue under advisement [and
subsequently permitted the Commonwealth to amend the
criminal information].
Trial Court Opinion, 1/28/14 at 2-4 (citations to the record omitted).3
A jury trial commenced on July 22, 2013, and the jury convicted
Appellant of the aforementioned charges. Following a hearing on October
____________________________________________
2
See 18 Pa.C.S.A. § 7508 (Drug trafficking sentencing and penalties) and
42 Pa.C.S.A. § 9712.1 (Sentences for certain drug offenses committed with
firearms).
3
With regard to the weight of the drugs, the record is unclear as to the
precise weight of the Percocet and methamphetamine. Our review of the
record reflects that the Commonwealth amended the criminal information as
follows:
Count 9 (PWID): 82.25 grams of methamphetamine/to include firearm
mandatory
Count 10 (PWID): 102.99 grams of oxycodone/to include firearm
mandatory
Count 11(PWID): to include firearm mandatory
Count 12(PWID): 28 grams of methamphetamine
Count 13 (PWID): 28 grams of methamphetamine
Count 14 (PWID): 28 grams of methamphetamine
Count 15 (PWID): 28 grams of methamphetamine
Amended Criminal Information, 7/16/13.
In light of our determination in this case that imposition of mandatory
minimum sentences based on the weight of the drugs was constitutionally
impermissible, the precise weight of the drugs is not dispositive.
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11, 2013, the trial court sentenced Appellant to a term of imprisonment of
17 to 50 years. This appeal followed. Both Appellant and the trial court
have complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether the trial court’s grant of the Commonwealth’s oral
motion to amend the Criminal Information created new
charges not passed in accordance with the Pennsylvania
Crimes Code and the Pennsylvania Constitution rendering
the jury’s verdicts of guilty on Counts 9, 10 and 11 a legal
nullity?
2. Did the record below support the Suppression Court’s
ruling denying [Appellant’s] Motion to Suppress and are
the [trial] court’s findings of fact and conclusions of law
amenable to appellate review?
Appellant’s Brief at 3.
In his first issue, Appellant argues that the trial court erred in granting
the Commonwealth’s oral motion to amend the criminal information to allow
the jury to determine the weight of the drugs, and to determine whether the
drugs were found in close proximity to the firearm, for purposes of imposing
mandatory minimum sentences pursuant to 18 Pa.C.S.A. § 7508 and 42
Pa.C.S.A. § 9712.1. Appellant’s Brief at 6-17. Specifically, Appellant claims
that the recent United States Supreme Court decision in Alleyne v. United
States, 133 S.Ct. 2151, 2155 (2013), rendered § 7508 and § 9712.1
unconstitutional, and the trial court acted impermissibly in allowing the
Commonwealth to amend the criminal information to include for jury
consideration the weights of the drugs seized from Appellant and the
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proximity of the firearm to Appellant’s drugs in order to subject him to the
mandatory minimum sentencing provisions. Accordingly, Appellant argues
that his mandatory minimum sentences should be vacated.
In Alleyne, the United States Supreme Court held that any facts
leading to an increase in a mandatory minimum sentence are elements of
the crime and must be presented to a jury and proven beyond a reasonable
doubt. Courts of this Commonwealth have held that “[t]he Alleyne decision
... 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.” Commonwealth v. Watley, 81
A.3d 108, 117 (Pa. Super. 2013) (en banc).
Following Alleyne, this Court in Commonwealth v. Newman, 99
A.3d 86 (Pa. Super. 2014) (en banc) reviewed the constitutionality of 42
Pa.C.S.A. § 9712.1, which enhances the minimum sentence where a firearm
is found in the vicinity of the contraband.4 We held in Newman that the
unconstitutional provisions of § 9712.1 which permit a trial judge to impose
the mandatory minimum sentence based on a preponderance of the
evidence are unconstitutional pursuant to Alleyne, and that the
____________________________________________
4
We note that the Commonwealth has filed a petition for allowance of
appeal with the Pennsylvania Supreme Court in Newman, docketed at 646
MAL 2014. As of the date of this decision, the petition for allowance of
appeal remains pending.
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unconstitutional provisions were “essentially and inseparably connected” to
the valid provisions of the statute, and therefore not severable. Newman,
99 A.3d at 101. Accordingly, we concluded that Alleyne rendered 42
Pa.C.S.A. § 9712.1 unconstitutional in its entirety, and we vacated the
judgment of sentence and remanded for the re-imposition of sentence
without consideration of any mandatory minimum sentence provided by
Section 9712.1.
Here, in accordance with our decision in Newman, which holds that
section 9712.1 in its entirety is unconstitutional, we are constrained to
vacate the judgment of sentence and remand for the re-imposition of
sentence without consideration of any mandatory minimum sentence
provided by Section 9712.1.
In addition, Appellant challenges the mandatory minimum sentences
imposed pursuant to 18 Pa.C.S.A § 7508 after the jury determined that
Appellant possessed methamphetamine of a weight of between 10 to 100
grams and possessed Percocet of a weight of 100 grams or more.
In Commonwealth v. Fennell, --- A.3d ---, 2014 WL 6505791(Pa. Super. November 21, 2014) and Commonwealth v. Cardwell --- A.3d
---, 2014 WL 6656644 (Pa. Super. November 25, 2014), this Court recently
declared § 7508 unconstitutional in its entirety pursuant to Alleyne.
Specifically, we held in Fennell and Cardwell that § 7508(b) — which
permits the trial court to determine the weight or amount of the drugs in
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question by a “preponderance of the evidence” — is unconstitutional in light
of Alleyne. Moreover, we reasoned in Fennell and Cardwell that the
unconstitutional “preponderance of the evidence” provision of § 7508(b) is
not severable from the rest of the statute, and therefore § 7508 as a whole
is unconstitutional. Accordingly, pursuant to Fennell and Cardwell, we
vacate Appellant’s judgment of sentence and remand for the re-imposition of
sentence without consideration of any mandatory minimum sentencing
provided by 42 Pa.C.S.A. 7508.
The Commonwealth argues that by amending the criminal information
to permit the jury to determine beyond a reasonable doubt the proximity of
drugs to the gun as well as the weight of the drugs, the trial court effectively
complied with the requirements of Alleyne by submitting the factual
questions for a jury to determine beyond a reasonable doubt. The
Commonwealth thus argues that the trial court’s imposition of mandatory
minimum sentences pursuant to 18 Pa.C.S.A. § 9712 and 42 Pa.C.S.A. §
7508 should be upheld.
In Commonwealth v. Valentine, --- A.3d ---, 2014 WL 4942256 (Pa.
Super. Oct 03, 2014) we held that the trial court was not permitted to
empower the jury to resolve the factual bases for imposition of a mandatory
minimum sentence. We reasoned that “[b]y asking the jury to determine
whether the factual prerequisites [of the mandatory minimum statue at
issue] had been met, the trial court effectively determined that the
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unconstitutional provisions of [the statute, employing a preponderance of
the evidence standard] were severable.” Valentine at 8. We concluded
however that the unconstitutional “preponderance of the evidence”
provisions were not severable, and moreover, that by permitting the
Commonwealth to amend the criminal information and submitting the factual
questions for jury consideration, “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.” Id. citing
Newman, 99 A.3d at 102 (holding that to allow a jury to determine beyond
a reasonable doubt whether the conditions exist for imposition of a
mandatory minimum sentence would effectively put the courts in a position
of “manufactur[ing]” a replacement procedure in an effort to comply with
Alleyne, and that such action by the courts would constitute an
impermissible legislative function).
Therefore, consonant with Newman and Valentine, we conclude that
by amending the criminal information and allowing the jury to determine
beyond a reasonable doubt the proximity of the gun to the drugs for
purposes of 42 Pa.C.S.A. 9712.1, and the weight of the drugs for purposes
of 18 Pa.C.S.A 7508, the trial court created a new procedure contrary to the
existing statute, which constituted an impermissible legislative function in an
effort to impose the mandatory minimum sentences in compliance with
Alleyne. As we explained in Valentine, “Newman makes clear that ‘it is
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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.’” Id. quoting Newman, 99
A.3d at 102. Here, the trial court did not have the authority to allow the
jury to determine the factual predicates of the mandatory minimum
sentencing statutes, and its efforts to impose mandatory minimum
sentences pursuant to 18 Pa.C.S.A § 9712.1 and 42 Pa.C.S.A § 7508 were in
error.
In his second issue, Appellant argues that the trial court erred in
denying his suppression motion. Appellant’s Brief at 18-40. Our scope and
standard of review is well-settled:
An appellate court's standard of review in addressing a
challenge to a trial court's denial of a suppression motion is
limited to determining whether the factual findings are supported
by the record and whether the legal conclusions drawn from
those facts are correct. [Because] the prosecution prevailed in
the suppression court, we may consider only the evidence of the
prosecution 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 record supports the factual findings of
the trial court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations
omitted).
Appellant argues that the trial court erred in denying his motion to
suppress wiretap evidence obtained through the interception of his
telephone calls. Specifically, Appellant argues that in its affidavit of probable
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cause in support of the wiretap order, the Commonwealth failed to include
“[a] particular statement of facts showing that other normal investigative
procedures with respect to the offense have been tried and have failed, or
reasonably appear to be unlikely to succeed if tried or are too dangerous to
employ” pursuant to 18 Pa.C.S.A. § 5709(3)(vii). Appellant’s Brief at 18.
Authorizations for interception of telephone communications are
subject to the provisions of the Wiretapping and Electronic
Surveillance Control Act, 18 Pa.C.S.A. §§ 5701–5782. An
application for an order of authorization to intercept an
electronic or wire communication must contain a sworn
statement by the investigative or law enforcement officer who
has knowledge of relevant information justifying the application,
which statement must include “a particular statement of facts
showing that other normal investigative procedures with respect
to the offense have been tried and have failed, or reasonably
appear to be unlikely to succeed if tried or are too dangerous to
employ.” Id. at § 5709(3)(vii). In addition, before a judge may
issue an order authorizing an interception, the judge is required
to determine on the basis of the facts submitted in the
application that there is probable cause for belief that “normal
investigative procedures with respect to such offense have been
tried and have failed, or reasonably appear to be unlikely to
succeed if tried or to be too dangerous to employ.” Id. at §
5710(a)(3).
Commonwealth v. Rodgers, 897 A.2d 1253, 1259
(Pa. Super. 2006).
Our courts have explained that suppression is not an appropriate
remedy for the Commonwealth’s failure to include a sworn statement that
other normal investigative procedures have failed, appear unlikely to
succeed, or are too dangerous — in violation of section 5709(3)(vii).
Commonwealth v. Steward, 918 A.2d 758, 760 (Pa. Super. 2007)
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(explaining that the Wiretap Act allows an aggrieved party to move for
suppression on six enumerated grounds which do not encompass a violation
of 5709(3)(vii)). Accordingly, to the extent Appellant seeks suppression
based on the Commonwealth’s failure to include a sworn statement pursuant
to section 5709(3)(vii), suppression is not available as a remedy under the
Wiretap Act. Id.Moreover, to the extent Appellant argues that the evidence presented
to the Superior Court judge ruling on the wiretap was insufficient to establish
probable cause to believe that normal investigatory methods had been
adequately employed or would have been futile, this claim also fails. See 18
Pa.C.S.A. § 5710(a)(3). This Court has addressed the “normal investigative
procedures” requirement as follows:
This is an objective standard; reliance cannot be placed
solely upon a subjective belief by the Attorney General or District
Attorney that normal investigative procedures will not likely
succeed. In this aspect, it will be observed, the standard
imposed by the Pennsylvania legislature is more stringent than
the requirement imposed by Title III. It is designed to
guarantee that wiretapping will not be resorted to in situations
where traditional investigative techniques are adequate to
expose crime. The requirement also suggests that a wiretap
should not be employed as the initial step in a police
investigation. However, the Commonwealth is not required to
show that all other investigative methods have been exhausted.
In making this determination, moreover, the issuing authority
may consider and rely upon the opinions of police experts. In
reviewing the adequacy of the application to support the
issuance of an order of authorization, we will interpret the
application in a common sense manner, not overly technical,
with due deference to the findings of the issuing authority.
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Rodgers, 897 A.2d at 1259 quoting Commonwealth v. Doty, 498 A.2d
870, 880–81 (Pa. Super. 1985)
Our review of the record indicates that the evidence presented to the
Superior Court judge ruling on the wiretap request was sufficient to establish
that other investigatory methods had been adequately employed and failed
or would have been futile or too dangerous. The extensive affidavit filed in
support of the wiretap application supports this determination. The 65-page
affidavit by Detective James Vinter included attestations that (1) the
confidential informants who had been involved in the investigation were
unable to provide any further information as to Appellant’s supply sources
and manner of acquisition and distribution of contraband, as they did not
have sufficient access to Appellant in order to obtain such information; (2)
attempts to utilize a new informant had failed, and the possibility of
procuring any more confidential informants whom Appellant would consider
trustworthy were remote; (3) efforts by undercover police to infiltrate
Appellant’s tightly knit network had failed and any further such efforts would
only arouse suspicion; and (4) continuous physical or visual surveillance of
Appellant’s residence was difficult as parking within sight of Appellant’s
residence was prohibited and any effort to do so would arouse suspicion, and
while the police department had placed surveillance cameras on Appellant’s
residence, the cameras offered only restricted views of the residence and the
footage was limited in its usefulness. Affidavit of Probable Cause, 6/18/12.
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Upon review, and interpreting the wiretap application and affidavit in a
common sense manner with due deference to the issuing authority, we find
no error in the trial court’s denial of Appellant’s motion to suppress the
wiretap. Rodgers, supra.
However, pursuant to Alleyne and the decisions of this Court in
Newman and Valentine, we vacate the judgment of sentence and remand
for resentencing without consideration of 42 Pa.C.S.A. § 9712.1 and 18
Pa.C.S.A. § 7508.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge Strassburger joins the memorandum.
Judge Olson files a concurring statement in which Judge Strassburger
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2014
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