Com. v. Talbert, D.

J-A06034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARREN TALBERT
Appellant No. 51 EDA 2014
Appeal from the Judgment of Sentence November 15, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004677-2012 and CP-23-CR-
0004680-2012
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 01, 2015
Darren Talbert has filed this direct appeal from his aggregate
judgment of sentence of 6-12 years’ imprisonment followed by 5 years’
probation for drug-related and firearms convictions. We affirm Talbert’s
convictions. We remand for resentencing on all convictions, because
Talbert’s mandatory minimum sentences for possession with intent to deliver
a controlled substance (“PWID”)1 are unconstitutional. See Alleyne v.
United States, ___ U.S. ___, 133 S. Ct. 2151 (2013); Commonwealth v.
Newman, 99 A.3d 86 (Pa.Super.2014) (en banc).
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1
35 P.S. § 780-113(a)(30).
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On July 12, 2012, Talbert and a co-defendant, Mrwan Mohamed, were
arrested and charged with various offenses in two separate actions. In No.
CP-23-CR-0004680-2012 (“Case I”), Talbert was charged with, inter alia,
three counts of PWID2 and three counts of conspiracy to commit PWID.3
These charges arose from Talbert’s sales of heroin to an undercover police
officer on July 3rd, 11th and 12th of 2012. In No. CP-23-CR-0004677-2012
(“Case II”), Talbert was charged with, inter alia, (1) PWID with regard to 85
bags of heroin discovered in the car he was driving at the time of the third
drug sale, (2) conspiracy to possess the 85 bags of heroin with intent to
deliver,4 (3) possession of a firearm in the car with obliterated marks of
identification (specifically, obliterated serial numbers),5 and (4) carrying a
firearm without a license.6 The trial court denied Talbert’s pretrial motion to
suppress and consolidated Cases I and II for trial. In Case I, the jury found
Talbert not guilty of PWID with regard to the alleged sale on July 3, 2012.
The jury found Talbert guilty of the remaining charges in Case I and Case II.
N.T., 8/16/13, pp. 239-48.
____________________________________________
2
35 P.S. § 780-113(a)(30).
3
18 Pa.C.S. § 903.
4
18 Pa.C.S. § 903.
5
18 Pa.C.S. § 6117(a).
6
18 Pa.C.S. § 6106(a)(2).
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The trial court submitted two special interrogatories to the jury to
determine whether Talbert was eligible for the mandatory minimum
sentence for PWID under 42 Pa.C.S. § 9712.1. The first interrogatory
inquired whether Talbert or his accomplice, Mohamed, possessed a firearm
when Talbert sold heroin to the undercover officer. The second inquired
whether the heroin weighed at least one gram but less than five grams, and
whether Talbert or his accomplice, Mohamed, were in possession or control
of a firearm at the time of the offense. With regard to each interrogatory,
the trial court instructed the jury to answer “yes” on the verdict slip if it
found that the Commonwealth proved each element beyond a reasonable
doubt. N.T., 8/16/13, pp. 213, 215-16. The jury answered both
interrogatories “yes”. N.T., 8/16/13, p. 249.
In Case I, based on Talbert’s conviction for PWID on July 12, 2012, the
trial court sentenced him to 5-10 years’ imprisonment, the mandatory
minimum under section 9712.1 for PWID while in physical control or
possession of a firearm. N.T., 11/15/13, p. 16. Talbert received
consecutive sentences of 1-2 years’ imprisonment for PWID on July 11, 2012
and 5 years’ probation for conspiracy to commit PWID. Id., p. 16. In Case
II, the court sentenced Talbert to 5-10 years’ imprisonment on his PWID
conviction for the 85 bags of heroin, the mandatory minimum under section
9712.1. Id., pp. 16-17. Talbert received a consecutive sentence of 1-2
years’ imprisonment for possession of a firearm with obliterated marks of
identification, a concurrent sentence of 1-2 years’ imprisonment for carrying
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a firearm without a license, and 5 years’ consecutive probation for
conspiracy to commit PWID. Id. Talbert’s sentence in Case II ran
concurrently with his sentence in Case I, making his aggregate sentence 6-
12 years’ imprisonment plus 5 years’ probation. This timely direct appeal
followed. Both Talbert and the trial court complied with Pa.R.A.P. 1925.
Talbert raises four issues in this appeal:
1. Did the suppression court err by refusing to
suppress the contents of a vehicle that was
unlawfully seized by the police?
2. Was the evidence insufficient as a matter of law
to sustain [Talbert’s] convictions for
constructively possessing the drugs and firearm
found inside an air conditioning vent in the vehicle
he was driving, where DNA evidence proved that
someone else owned the firearm and the drugs in
the bag were different than what [Talbert] was
alleged to have delivered?
3. Was the evidence insufficient as a matter of law
to sustain [Talbert’s] conviction for conspiracy?
4. Should this matter be remanded to correct the
unconstitutional mandatory minimum sentence
imposed on [Talbert], pursuant to
Commonwealth v. Newman, 2014 Pa. Super.
178 (Aug. 20, 2014)?
Brief For Appellant, p. 4. Talbert’s counsel stated during oral argument that
he was abandoning his first issue (suppression of the contents of the
vehicle). Therefore, we will not address this question.
In his second issue on appeal, Talbert argues that the evidence was
insufficient to sustain his convictions in Case II relating to the 85 bags of
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heroin and the firearm found inside the Uplander. Specifically, Talbert
argues that the evidence does not prove that he was in possession of these
items. We disagree.
Our standard of review for challenges to the sufficiency of the evidence
is well-settled:
[W]hether[,] viewing all the evidence admitted at
trial in the light most favorable to the
[Commonwealth as 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.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations
omitted).
Construed in the light most favorable to the Commonwealth, the
evidence adduced at trial was as follows: Officer McAleer testified that on
July 3rd, 11th and 12th of 2012, while in her undercover capacity, she
purchased six bags of heroin from Talbert, a drug dealer that she knew as
“Money.” N.T., 8/15/13, pp. 147-49, 154-57. On July 11, 2012 and July 12,
2012, Officer McAleer observed Talbert driving the Uplander to each sale
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location. Id. at 157-60, 165. On July 11, 2012, Talbert was driving by
himself, but on July 12, 2012, he had a passenger in the front seat and two
children in the back seat. Id. at 161. The officer submitted the substance
that she bought from Talbert to a laboratory and confirmed that it was
heroin. Id. at 197, 220-21.
Other officers performed surveillance of the undercover buys. N.T.,
8/15/13, p. 189. Detective Bernhardt observed Officer McAleer perform
three undercover buys, Id. at 226-29, but he only saw Talbert’s face on July
11th and July 12th. N.T., 8/16/13, 17. He also watched as Talbert arrived in
the Uplander on July 11th and July 12th. N.T., 8/15/13, pp. 228-30; N.T.,
8/16/13, p. 18. On July 12, 2012, when Officer McAleer signaled, Detective
Bernhardt and assisting officers arrested Talbert and the adult passenger,
Mohamed. N.T. 8/15/13, pp. 230-32; N.T., 8/16/13, pp. 11, 67-71. During
the arrest, the police recovered $570.00 and a cell phone from Talbert and
$16.00 and a cell phone from Mohamed. N.T., 8/16/13, pp. 11, 73-74.
The following day, Detective Bernhardt found 85 bags of heroin and an
operable firearm together in the air-conditioning vent to the left of the
steering wheel. N.T., 8/15/13, pp. 236-40, 242; N.T., 8/16/13, pp. 41-43.
The 85 packets of heroin had a different stamp (“blackjack”) than the logo
on the packets that Talbert sold to Officer McAleer (“starbucks”).
Mohamed’s DNA was found on the firearm. N.T., 8/16/13, pp. 41-42. In the
center console, Detective Bernhardt found a Visa debit card in Talbert’s
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name as well as mail, a receipt, and an impound release form for the
vehicle, all made out to Talbert. N.T., 8/15/13, pp. 244-47; N.T., 8/16/13,
pp. 31-33. Although the vehicle was registered to Aaron Talbert-Wilkinson,
Talbert-Wilkinson had been continuously incarcerated from May 2012
through July 2012. N.T., 8/16/13, p. 60.
Lieutenant Michael Boudwin of the Narcotics Unit of the Delaware
County CID testified as an expert witness in the field of illegal drugs, drug
investigations, and drug trafficking. N.T., 8/16/13, pp. 97-98. The
lieutenant provided a detailed description of the global as well as local heroin
market. N.T., 8/16/13, pp. 98-104. In the lieutenant’s opinion, Talbert
possessed the 85 bags of heroin in the vehicle with the intent to distribute
them, because a user would only buy two to four bags of heroin at a time,
as opposed to 85, and the officers did not recover any indicia of personal use
in the Uplander. N.T., 8/16/13, pp. 104-07.
In narcotics possession cases,
‘the Commonwealth may meet its burden by showing
actual, constructive, or joint constructive possession
of the contraband.’ Commonwealth v. Thompson,
[], 428 A.2d 223, 224 ([Pa.Super.]1981). Actual
possession is proven ‘by showing ... [that the]
controlled substance [was] found on the
[defendant’s] person.’ Commonwealth v.
Macolino, [], 469 A.2d 132, 134 (Pa.1983). If the
contraband is not discovered on the defendant’s
person, the Commonwealth may satisfy its
evidentiary burden by proving that the defendant
had constructive possession of the drug. Id.
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Our Supreme Court has defined constructive
possession as ‘the ability to exercise a conscious
dominion over the illegal substance: the power to
control the contraband and the intent to exercise
that control.’ Macolino, 469 A.2d at 134. In the
words of our Supreme Court, ‘constructive
possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement.’
Commonwealth v. Johnson, [], 26 A.3d 1078,
1093 (Pa.2011) (internal quotations, citations, and
corrections omitted). It is a ‘judicially created
doctrine ... [that] enables law enforcement officials
to prosecute individuals in situations where the
inference of possession is strong, yet actual
possession at the time of arrest cannot be shown.’
Mark I. Rabinowitz, Note, Criminal Law
Constructive Possession: Must the
Commonwealth Still Prove Intent?—
Commonwealth v. Mudrick, 60 TEMPLE L.Q. 445,
499–450 (1987).
To find constructive possession, the power and intent
to control the contraband does not need to be
exclusive to the defendant. Our Supreme Court ‘has
recognized that constructive possession may be
found in one or more actors where the item [at]
issue is in an area of joint control and equal access.’
Johnson, [] 26 A.3d at 1094 (internal quotations,
citations, and corrections omitted). Nevertheless,
‘where more than one person has equal access to
where drugs are stored, presence alone in
conjunction with such access will not prove conscious
dominion over the contraband.’ Commonwealth v.
Davis, [], 480 A.2d 1035, 1045 (Pa.Super.1984)
(emphasis omitted).
For the Commonwealth to prove constructive
possession where more than one person has access
to the contraband, ‘the Commonwealth must
introduce evidence demonstrating either [the
defendant’s] participation in the drug related activity
or evidence connecting [the defendant] to the
specific room or areas where the drugs were kept.’
Commonwealth v. Ocasio, [], 619 A.2d 352, 354–
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355 (Pa.Super.1993). However, ‘[a]n intent to
maintain a conscious dominion may be inferred from
the totality of the circumstances ... [and]
circumstantial evidence may be used to establish a
defendant’s possession of drugs or contraband.’
Macolino, 469 A.2d at 134–135 (internal citations
omitted).
Commonwealth v. Vargas, -- A.3d --, 2014 WL 7447678, *8 (Pa.Super.,
Dec. 31, 2014) (en banc) (citations omitted). Constructive possession cases
are fact-sensitive; “a review of case law pertaining to constructive
possession indicates the difficulty of drawing bright lines in this area of the
law.” Commonwealth v. Stembridge, 579 A.2d 901, 904
(Pa.Super.1990).
The evidence at trial establishes that Talbert was in constructive
possession of the heroin and firearm found in the Uplander. At the time of
Talbert’s arrest, Talbert-Wilkinson, the owner of the Uplander, had been
continuously incarcerated for two months, and there was abundant evidence
that Talbert had been operating the Uplander for an extended period of time
and treated it as if it belonged to him. Talbert’s bank cards and mail were in
the center console along with traffic tickets and a receipt confirming
payment for release of the Uplander from an impoundment yard. On July
11, 2012, Talbert drove the car by himself to the site of his transaction with
Officer McAleer. The next day, Talbert drove the car with Mohamed and two
children in the backseat. On each occasion, Talbert exited the vehicle and
sold heroin to Officer McAleer. There were bags of heroin and a firearm in
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plain view in an air vent directly to the left of the steering wheel, easily
within reach of the driver, Talbert. Collectively, this evidence demonstrates
Talbert’s “ability to exercise conscious dominion over the [heroin and the
firearm],” because he had “the power to control [these items] and the intent
to exercise that control.” Macolino, supra, 469 A.2d at 134; see also
Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa.Super.2003)
(evidence established that defendant constructively possessed crack cocaine
found in vehicle by officer looking for gun after defendant’s arrest for
assaulting his wife, so as to support conviction for possession of controlled
substance, even though defendant did not own vehicle, arresting officers did
not see defendant in vehicle, cocaine was in back seat of vehicle, vehicle’s
front windows were down, and vehicle was unlocked; defendant’s wife told
officers defendant had arrived in vehicle, defendant possessed keys to
vehicle, cocaine was situated on plate lying in plain view on back seat of
vehicle, and defendant stated “[y]a’ll found narcotics” when officer returned
from investigating vehicle).
Relying upon Commonwealth v. Juliano, 490 A.2d 891 (Pa. Super.
1985), and Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super.
1982), Talbert argues that the Commonwealth failed to muster sufficient
evidence of constructive possession. In Juliano, police officers searched a
car in which the defendant was a passenger along with three other persons.
The officers seized a satchel on the floor in front of the defendant’s seat
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which contained a counterfeit controlled substance. This Court held that
there was no evidence, such as furtive movements or attempts to escape,
that indicated the defendant’s knowledge of the satchel’s contents. Juliano,
490 A.2d at 894. Similarly, in Boatwright, a police officer responding to a
call concerning three “suspicious” men in a parked car saw the defendant,
seated in the front passenger seat, “moving towards his left rear.” On the
left rear floor, the officer found a gun registered to a person not in the car.
We held that there was insufficient proof of the defendant’s possession of
the firearm. Boatwright, 453 A.2d at 1058.
The defendants in Juliano and Boatwright were passengers inside a
vehicle who were only momentarily in close proximity to the items seized by
police. The defendant in Juliano sat near one unopened satchel on one
occasion without engaging in any suspicious movements or conduct
indicating his control over the satchel. The defendant in Boatwright sat
near and “moved towards” one gun on one occasion. The evidence in this
case is far different. Prior to his arrest, Talbert drove the Uplander for
months and treated it as his own by leaving mail and other personalty in the
center console. On the day before and the day of his arrest, he drove the
Uplander to prearranged locations, exited the vehicle, and sold bags of
heroin to an undercover police officer moments later. Immediately within
reach of the driver’s seat was not one but 85 easily visible bags of heroin,
the same drug that he sold to the undercover officer. Under these
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circumstances, a jury could reasonably conclude that Talbert’s proximity to
the heroin was more than coincidence, and that he exercised conscious
dominion over the 85 bags of heroin.7
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7
In addition, Commonwealth v. Johnson, supra, a decision cited in the
table of contents of Talbert’s brief but not discussed in his brief, is
distinguishable from the present case. In Johnson, an undercover police
officer solicited drugs from the defendant. The defendant called a drug
supplier (Wilson), arranged to obtain a single bundle of heroin and met
Wilson on a public street. Following a conversation, Wilson left the
defendant, retrieved a bundle of heroin from his Buick, and delivered it to
the defendant. The defendant delivered the bundle to the undercover police
officer and returned money to Wilson. Our Supreme Court held that the
defendant was not in constructive possession of a second bundle of heroin
recovered from Wilson’s Buick:
Importantly, there was no proof presented at trial
that [the defendant] had any connection to the Buick
whatsoever as no evidence of any ownership interest
by him in the Buick was introduced, and he was
never observed in or near the Buick, at any time
before or after Wilson’s entry. Likewise, there was
no evidence brought forward at trial to show that
[the defendant] had any ability to enter into the
Buick’s passenger compartment or trunk if he so
desired. [The defendant] had his own vehicle, and it
was only Wilson who had a set of keys for the Buick.
Further, no evidence was offered to indicate [the
defendant] had any other means of access to the
Buick via a separate key or a remote entry device.
Consequently, the totality of the evidence simply did
not establish the sine qua non for the trial court’s
finding that [the defendant] was in joint constructive
possession with Wilson of the second bundle of ‘new
era’ heroin stored inside the Buick, since the
evidence did not demonstrate that [the defendant]
had joint control over, and equal access to, the Buick
with Wilson, nor did it support an inference that [the
defendant] had any ability to exercise conscious
(Footnote Continued Next Page)
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Talbert also suggests that the heroin and the firearm inside the vehicle
belonged to Mohamed instead of him, because the bags of heroin had a
different stamp (“blackjack”) than the stamp on the bags that he sold to
Officer McAleer (“starbucks”), and Mohamed’s DNA was on the firearm. This
evidence might show that Talbert and Mohamed had joint constructive
possession, but it does not show that Talbert lacked constructive possession.
Individuals can have joint constructive possession of an item of
contraband when they have equal access to the item. Macolino, supra,
469 A.2d at 134 (evidence, viewed in totality, demonstrated that husband
maintained conscious dominion over cocaine found in bedroom closet which
he shared with his wife; fact that wife could also have maintained conscious
dominion over cocaine did not preclude conviction of husband, because
possession of illegal substance need not be exclusive; two or more can
possess same drug at same time). Because Talbert, the frontseat driver,
was in closer proximity to the heroin and firearm than Mohamed, the
backseat passenger, Talbert arguably had greater access than Mohamed and
thus was in sole constructive possession of these items instead of joint
_______________________
(Footnote Continued)
dominion over the bundle of heroin in the Buick, or
any power or intent to control it.
Id., 26 A.3d at 1094-95. In contrast, in this case, Talbert obviously had
access to the Uplander and used it to facilitate drug sales, since he drove the
Uplander to the sites of drug transactions with Officer McAleer. Thus,
Johnson does not help Talbert’s cause.
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constructive possession. At a minimum, Talbert and Mohamed had joint
constructive possession, thus satisfying the possession elements of the
PWID and firearms charges in Case II. Macolino, supra. Regardless of
whether Talbert had sole or joint constructive possession, the evidence does
not support his claim that he lacked constructive possession.
Talbert also argues that he was merely present in the vehicle where
Detective Bernhardt subsequently discovered the 85 bags of heroin and the
firearm. Mere presence, he continues, is insufficient to establish
constructive possession of these items. Brief For Appellant, p. 13 (citing,
inter alia, Commonwealth v. Spencer, 621 A.2d 153, 155 (Pa.Super.1993)
(mere presence of passenger in car insufficient to establish constructive
possession of drugs located in driver side armrest)). For the reasons
articulated above, the evidence demonstrates that Talbert was not merely
present in the Uplander, but that he treated it as his own and used it to
transport heroin to the sites of drug sales.
In sum, Talbert’s efforts to recast the evidence in a less damaging
light are unavailing. The evidence is sufficient to sustain his PWID
conviction in Case II relating to the 85 bags of heroin and his firearms
convictions in Case II.
In his third issue on appeal, Talbert claims that the evidence was
insufficient to sustain his conspiracy convictions in Cases I and II. Our
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standard of review is the same as in our preceding discussion of the
constructive possession issue. See Troy, supra.
A criminal conspiracy exists when “the defendant (1) enter[s] into an
agreement to commit or aid in an unlawful act with another person or
persons, (2) with shared criminal intent and (3) an overt act [is] done in
furtherance of the conspiracy.” Commonwealth v. McCall, 911 A.2d 992,
996 (Pa.Super.2006) (citing 18 Pa.C.S. § 903). The conduct of the parties
and the surrounding circumstances may create a web of evidence linking the
accused to the alleged conspiracy. Commonwealth v. Bricker, 882 A.2d
1008, 1017 (Pa.Super. 2005). A conspiratorial agreement may be inferred
from the relation between the parties, their knowledge of and participation in
the crime, and the circumstances and conduct of the parties surrounding the
crime. Id. This Court has explained the agreement element of conspiracy
as follows:
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being,
that a particular criminal objective be accomplished.
Therefore, a conviction for conspiracy requires proof
of the existence of a shared criminal intent. An
explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for
proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its
activities. Thus, a conspiracy may be inferred where
it is demonstrated that the relation, conduct, or
circumstance of the parties, and the overt acts of the
co-conspirators sufficiently prove the formation of a
criminal confederation . . . . Even if the conspirator
did not act as a principal in committing the
underlying crime, he is still criminally liable for the
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actions of his coconspirators in furtherance of the
conspiracy.
McCall, 911 A.2d at 996-97.
On appeal, the Commonwealth need not preclude every possibility of
innocence, and this Court must affirm the conviction 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.” Commonweath v. Adams,
39 A.3d 310, 323 (Pa.Super.2012).
Although Talbert admits that Mohamed traveled with him to the site of
the drug sale on July 12th, Talbert argues that there is no evidence of a
conspiracy, because “there is no evidence. . .that Mohamed actually did
anything. He was merely present at the scene when [Talbert] was
arrested.” Brief For Appellant, p. 14 (emphasis in original). Talbert adds
that the presence of Mohamed’s fingerprint on the firearm, and the
difference in logos between the drugs that Talbert sold to Officer McAleer
from the drugs found in the Uplander, suggest that he and Mohamed were
“independent operators” instead of conspirators. Reply Brief For Appellant,
p. 3.
Talbert’s self-serving view of the evidence is unavailing. Mere
presence at the scene of a crime and knowledge of the commission of
criminal acts is not sufficient to establish a conspiracy. In Re V.C., 66 A.3d
341, 349 (Pa.Super.2013). “Nor is flight from the scene of a crime, without
more, enough.” Id. On the other hand, these factors, combined with
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other direct or circumstantial evidence, may provide sufficient evidence of a
conspiracy. Id. In this case, Talbert and Mohamed traveled together to the
heroin sale on July 12th, but there is more evidence than Mohamed’s mere
presence. There was a firearm with Mohamed’s fingerprints stuffed in a vent
in plain view next to the driver’s seat, where Talbert sat, along with 85 bags
of heroin bearing a different logo than the drugs that Talbert sold to Officer
McAleer. These items, and their proximity to Talbert, is circumstantial
evidence of an agreement between Talbert and Mohamed to sell drugs
bearing different logos and to protect themselves in this dangerous
enterprise with Mohamed’s gun. This evidence is not “so weak and
inconclusive that as a matter of law no probability of fact may be drawn
from the combined circumstances.” Adams, 39 A.3d at 323. We reject
Talbert’s challenge to the sufficiency of the evidence underlying his
conspiracy convictions in Cases I and II.
In his final argument, Talbert contends that his mandatory minimum
sentence for PWID under 42 Pa.C.S. § 9712.18 is unconstitutional. We find
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8
Section 9712.1 provides:
Any person who is convicted of a violation of section
13(a)(30) of the act of April 14, 1972 (P.L. 233, No.
64), known as The Controlled Substance, Drug,
Device and Cosmetic Act, when at the time of the
offense the person or the person’s accomplice is in
physical possession or control of a firearm, whether
visible, concealed about the person or the person’s
(Footnote Continued Next Page)
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Talbert’s PWID sentences in Case I and II unconstitutional based on this
Court’s recent decision in Commonwealth v. Newman, 99 A.3d 86
(Pa.Super.2014), which applies the mandate of the United States Supreme
Court in Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151 (2013).
The United States Supreme Court decided Alleyne in June 2013, two
months before Talbert’s trial. Alleyne held that, other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory minimum must be submitted to a jury and proved
beyond a reasonable doubt. Id., 131 S.Ct. at 2160-61. During Talbert’s
trial, the trial court attempted to comply with Alleyne by submitting two
special interrogatories to the jury to determine whether Talbert was eligible
for the mandatory minimum sentence under section 9712.1. The trial court
instructed the jury that the Commonwealth was required to prove all
elements of each interrogatory beyond a reasonable doubt. The jury
answered “yes” to each interrogatory. On November 15, 2013, the trial
court imposed the mandatory minimum sentence pursuant to section 9712.1
in one of Talbert’s PWID convictions in Case I and in his PWID conviction in
Case II.
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(Footnote Continued)
accomplice or within the actor’s or accomplice’s
reach or in close proximity to the controlled
substance, shall likewise be sentenced to a minimum
sentence of at least five years of total confinement.
42 Pa.C.S. § 9712.1(a).
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Nine months after sentencing, during this direct appeal, we held in
Newman that Alleyne rendered section 9712.1 unconstitutional in its
entirety. Newman, 99 A.3d at 98 (in view of Alleyne, “plainly, section
9712.1 can no longer pass constitutional muster”). Newman reasoned that
the mandatory minimum prescribed in section 9712.1(a) is not severable
from the “enforcement arm” of the statute, section 9712.1(c). Id. at 101-
03. Since section 9712.1 is unconstitutional, trial courts must impose
sentence “without consideration of any mandatory minimum sentence
provided by Section 9712.1.” Id. at 103.
An unconstitutional statute such as section 9712.1 is a nullity; “[i]t is
as if it were never enacted.” Glen–Gery Corp. v. Zoning Hearing Bd. of
Dover Tp., 907 A.2d 1033, 1043 (Pa.2006). When the court sentences the
defendant under an unconstitutional sentence, his sentence is a nullity, and
resentencing is compulsory. Commonwealth v. Muhammed, 992 A.2d
897, 903 (Pa.Super.2010) (unconstitutional statute is ineffective for any
purpose, because its unconstitutionality dates from time of its enactment,
not merely from date of decision holding it so; trial court lacked statutory
authority to convict and sentence appellant under this provision).
Because Talbert’s PWID sentences under section 9712.1 are nullities,
we must vacate them. We do not agree with the Commonwealth’s
contention during oral argument that application of section 9712.1 is mere
harmless error. As we recently observed in a post-Newman decision, a
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sentence imposed under an unconstitutional statute is per se illegal and
must be corrected:
[I]f Newman's overriding conclusion is … that
mandatory minimum statutes in Pennsylvania must
be stricken in their entirety as facially
unconstitutional, any discussion of harmless error is
rendered moot. This is because, once the Court
concludes that the subsections cannot be severed
and must all be struck down, there is no statutorily
authorized sentence upon which a harmless error
analysis may be applied. See, e.g.,
[Commonwealth v.] Rivera, [95 A.3d 913, 915
(Pa.Super.2014)] (stating, “[i]f no statutory
authorization exists for a particular sentence, that
sentence is illegal and subject to correction[ ]”).
Commonwealth v. Fennell, 105 A.3d 13, 19 n.5 (Pa.Super.2014).
Furthermore, because vacatur of Talbert’s PWID sentences upsets the
trial court’s entire sentencing scheme, we remand for resentencing on all
counts of conviction. Commonwealth v. Goldhammer, 517 A.2d 1280,
1281 (Pa.1986) (if appellate court alters overall sentencing scheme, then
remand for resentencing is proper); Commonwealth v. Vanderlin, 580
A.2d 820, 831 (Pa.Super.1990) (if trial court errs in its sentence on one
count in multi-count case, then all sentences for all counts will be vacated
and matter remanded for court to restructure its entire sentencing scheme).
The trial court is certainly not to blame for this development. The trial court
intelligently applied the law in existence at the time of trial and sentencing
and did not have the benefit of our decision in Newman. Resentencing is
necessary despite the trial court’s efforts, not because of them.
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Convictions affirmed; judgment of sentence vacated; case remanded
for re-sentencing. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2015
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