Com. v. Whitehead, A.

J-S27008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALON WHITEHEAD, JR.
Appellant No. 598 WDA 2013
Appeal from the Judgment of Sentence September 27, 2012
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000282-2009;
CP-56-CR-0000283-2009
BEFORE: GANTMAN, P.J., ALLEN, J., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 04, 2014
Appellant, Alon Whitehead, Jr., appeals from the judgment of sentence
entered in the Somerset County Court of Common Pleas, following his jury
trial convictions for two counts each of possession of a controlled substance
1
We
affirm.
The relevant facts and procedural history of this case are as follows.
On May 22, 2008, Appellant sold approximately one gram of crack cocaine to
officers, including Trooper Joshua Giran, were on the scene and observed
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1
35 P.S. § 780-113(a)(16); (a)(30), respectively.
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the transaction. Police set up a second controlled buy on June 3, 2008, at
which time Appellant sold 4.3 grams of crack cocaine to the same C.I.
Trooper Giran identified Appellant as the person who sold drugs to the C.I.
during both transactions. The Commonwealth subsequently charged
Appellant at docket # CP-56-CR-0000282-
conspiracy, and possession of a controlled substance, relating to the May 22,
2008 incident; and at docket # CP-56-CR-0000283-
PWID, conspiracy, and possession of a controlled substance, relating to the
June 3, 2008 incident. The criminal information for each case expressly
stated that Appellant faced an increased sentence on any second or
subsequent PWID offense. See 35 P.S. § 780-115 (stating person convicted
of second or subsequent PWID offense may be sentenced up to twice term of
imprisonment otherwise authorized).
On October 12, 2010, Appellant entered an open guilty plea to one
count of simple possession at Case 282 and one count of PWID at Case 283.
The court entered a nolle prosequi on the remaining charges. On November
29, 2010, Appellant filed a pre-sentence motion to withdraw his guilty plea
asserting, inter alia, Appellant was unaware he faced increased penalties as
a result of a prior PWID conviction, and his plea was involuntary on this
basis. Notwithstanding the language in the criminal informations about the
possibility of increased penalties, the court determined that at the time of
the plea hearing, counsel for the Commonwealth, plea counsel, and the court
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were unaware Appellant had a prior PWID conviction. Consequently, the
court and plea counsel misinformed Appellant about the maximum penalties
to sentencing would not prejudice the Commonwealth. The court granted
On August 9, 2011, Appellant proceeded to a jury trial; the court
tipstaff and jury officers made racial comments. On September 19, 2011,
Appellant filed a motion to dismiss on double jeopardy grounds and an
alternative motion for change of venue. Following argument, the court
ruling on the motion for change of venue pending jury selection. 2 On March
2, 2012, Appellant filed a motion to dismiss under Pa.R.Crim.P. 600.
Following a hearing on June 1, 2012, the court denied the motion on June
14, 2012. On August 21, 2012, re-trial began. The jury convicted Appellant
on August 22, 2012, of two counts each of PWID and simple possession; the
jury found Appellant not guilty on the conspiracy charges. The court
3
deferred sentencing for a pre-
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2
of venue but confirms the court ultimately denied the motion.
3
Appellant waived his right to a full PSI report, so the court directed the
probation department to prepare a PSI report consisting of a record check.
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Appellant proceeded to sentencing on September 27, 2012, at which
time the Commonwealth stated its intent to seek the mandatory minimum
sentence for the PWID conviction at Case 283, per 18 Pa.C.S.A. §
7508(a)(3)(i) (stating mandatory minimum for PWID with cocaine weighing
between two (2) and ten (10) grams where defendant has prior drug
Appellant for the PWID conviction at Case 282 to a term of eighteen (18)
months to five (5) year
283, the court imposed a consecutive term of thirty-
ession merged
for sentencing purposes. Thus, the court imposed an aggregate sentence of
four and one-
2012, Appellant timely filed post-sentence motions, which the court denied
by operation of law on March 5, 2013, pursuant to Pa.R.Crim.P.
720(B)(3)(b).4 Appellant timely filed a notice of appeal on April 4, 2013. On
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4
Generally, where a defendant files a post-sentence motion, the judge shall
decide the motion within 120 days of its filing; otherwise, the motion shall
be deemed denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a).
-day
disposition period, for good cause shown, the judge may grant one 30-day
extension for decision on the motion. If the judge fails to decide the motion
within the 30-day extension period, the motion shall be deemed denied by
denial was pursuant to Rule 720(B)(3)(b).
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April 10, 2013, the court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
timely complied.
Appellant raises the following issues for our review:
RELATIVE TO DELIBERATIONS SO COERCIVE AS TO
REQUIRE REVERSAL?
PRETRIAL MOTIONS REQUESTING CHANGE OF VENUE,
DISMISSAL DUE TO DOUBLE JEOPARDY, AND DISMISSAL
UNDER RULE 600?
SUFFICIENCY OF THE EVIDENCE?
WAS THE SENTENCE IMPOSED BY THE [TRIAL] COURT
TOO SEVERE UNDER THE CIRCUMSTANCES?
DID THE [TRIAL] COURT ERR IN ORDERING A
MANDATORY MINIMUM SENTENCE OF THREE (3) YEARS,
AND IN FAILING TO ORDER THE SENTENCES IN THIS
MATTER TO BE SERVED CONCURRENTLY AS OPPOSED TO
CONSECUTIVELY?
5
Preliminarily, we observe,
review, appellants must comply whenever the trial court orders them to file
a Statement of Matters Complained of on Appeal pursuant to [Rule] 1925.
Any issues not raised in a [Rule] 1925(b
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5
isposition purposes.
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Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005)
(quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309
(1998)).
instructions in his Rule 1925(b) statement and raises this claim for the first
See Castillo,
supra. See also Pa.R.A.P. 302(a) (stating issues not raised in trial court
are waived and cannot be raised for first time on appeal).6
Our standard and scope of review from an order denying a motion to
dismiss based on double jeopardy grounds is as follows:
An appeal grounded in double jeopardy raises a question
pe of review in
making a determination on a question of law is, as always,
plenary. As with all questions of law, the appellate
standard of review is de novo. To the extent that the
factual findings of the trial court impact its double jeopardy
ruling, we apply a more deferential standard of review to
those findings:
Where issues of credibility and weight of the
evidence are concerned, it is not the function of the
appellate court to substitute its judgment based on a
cold record for that of the trial court. The weight to
be accorded conflicting evidence is exclusively for
the fact finder, whose findings will not be disturbed
on appeal if they are supported by the record.
Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa.Super. 2013), appeal
____________________________________________
6
instruction at trial. (See -19.)
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denied, ___ Pa. ___, 84 A.3d 1063 (2014) (internal citations and quotation
marks omitted).
Additionally, the determination of whether to grant or deny a
the trial court and will not be disturbed on appeal absent an abuse of
discretion. Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519 (2003),
cert. denied, 541 U.S. 1045, 124 S. Ct. 2161, 158 L. Ed. 2d 736 (2004).
communit Id. at
219, 830 A.2d at 529. Significantly,
Venue may be changed when it is determined after hearing
the county where the case is currently pending. The
moving party bears the burden of showing that such a
change is necessary and must demonstrate that
which venue was originally established.
Commonwealth v. Brookins, 10 A.3d 1251, 1259 (Pa.Super. 2010),
appeal denied, 610 Pa. 625, 22 A.3d 1033 (2011) (internal citations and
quotation marks omitted).
Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en
banc), appeal denied
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evidentiary hearing, and the findings of the trial court. An appellate court
Id.
at 1238-39 (internal citations and quotation marks omitted). Importantly, a
court will grant a motion to dismiss on Rule 600 grounds only if a defendant
has a valid Rule 600 claim at the time the motion is filed. Id. at 1243.7
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable John M.
Cascio and the
second, third, and fourth issues on appeal merit no relief. The trial court
opinions comprehensively discuss and properly dispose of those questions.
(See Trial Court Opinion, filed June 14, 2012, at 2-4; Trial Court Opinion,
filed August 1, 2013, at 2-7) (finding: (issue 2) court properly denied
and was not re
change of venue complaint, trial court ensured that tipstaff and jury officers
who had made racial comments during initial trial were not assigned to
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7
See Pa.R.Crim.P. 600(D)(1) (as amended March 1, 2000; effective April 1,
2001). On October 1, 2012, the legislature rescinded this version of Rule
600 and adopted a new Rule 600, effective July 1, 2013.
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dismiss under Rule 600, Commonwealth had 365 days from date of mistrial,
August 10, 2011, to retry Appellant, where Appellant was free on bail on
instant charges; when Appellant filed Rule 600 motion on March 2, 2012,
Rule 600 motion was premature when filed and denial of motion was proper;
-trial motions requesting dismissal on
double jeopardy grounds, change of venue, and dismissal under Rule 600
merits no relief; (issue 3)
to specify in Rule 1925(b) statement which elements of offenses
Commonwealth allegedly failed to prove; moreover, evidence was sufficient
8
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8
ing
on the date of both controlled buys and arranged to meet Appellant at a
specified delivery site; (2) police strip-searched the C.I. immediately before
both controlled buys; (3) Trooper Giran observed an African American male
make an exchange with the C.I. during both controlled buys; (4) Trooper
Giran positively identified Appellant as the man who sold drugs to the C.I.
during both controlled buys; (5) the C.I. identified Appellant as the person
who sold her drugs during both controlled buys; (6) the C.I. testified she
was familiar with Appellant from purchasing drugs from him on numerous
prior occasions; (7) Trooper Michael Noel and Trooper Karen Orsini also
observed the contr
laboratory confirmed the substance involved in both controlled buys was
crack cocaine; (9) the crack cocaine from the initial controlled buy weighed
0.94 grams; and (10) the crack cocaine from the second controlled buy
weighed 4.3 grams. (See Trial Court Opinion, filed 8/1/13, at 3-6.)
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involvement in controlled buys and claiming that another man who looks like
Appellant actually delivered drugs to C.I.; jury credited testimony of C.I.
who stated she was familiar with Appellant because she purchased drugs
he positively identified Appellant as drug dealer at both controlled buys;
weight claim affords him no relief; (issue 4)
that sentence was too severe and court should have imposed concurrent
rather than consecutive sentences fail to raise substantial question;9
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9
Appellant also claims the court failed to consider his rehabilitative needs
and ignored certain mitigating factors in fashioning its sentence. These
complaints similarly do not raise a substantial question warranting appellate
review. See Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001)
(explaining allegations that sentencing court failed to consider specific
raise substantial question).
Additionally, in its August 1, 2013 opinion, the court indicates Appellant did
not provide a Rule 2119(f) statement. Appellant included the requisite
suggests the court meant that Appel
and complaint about the consecutive nature of his sentences, as presented
-sentence motions and Rule 1925(b) statement, did not
comport with the requirements of Rule 2119(f) to specify where the
sentence falls in relation to the sentencing guidelines, what particular
provision of the Sentencing Code the court has allegedly violated, and what
fundamental norm of the Sentencing Code the sentence allegedly violated.
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specifically stated its reasons for sentence on record;10
to discretionary aspects of his sentence fails).11 Therefore, with respect to
In his fifth issue, Appellant explains Section 7508(b) requires the
mandatory minimum sentence under that statute. Appellant asserts the
Commonwealth failed to provide sufficient notice when it announced its
intent to seek the mandatory minimum per Section 7508(a)(3)(i) for the
first time at the sentencing hearing. Appellant also maintains the
conviction necessary for imposition of the mandatory minimum sentence was
a drug trafficking offense, because the PSI report does not specify the exact
offense for which Appellant was convicted in 2003. Appellant contends the
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10
The court specifically consider
PWID offense as posing a risk of harm to others and society in general, and
that a lesser sentence would depreciate the seriousness of offense.
11
Appellant failed to cite any law whatsoever to support his change of venue
complaint, Rule 600 claim, or weight of the evidence challenge, which could
constitute waiver of these issues on appeal. See Commonwealth v.
Gould, 912 A.2d 869 (Pa.Super. 2006) (explaining appellate briefs must
provide citations to record and any relevant supporting authority; appellant
waived issue on appeal where he failed to support claim with relevant
citations to case law and record). Nevertheless, the court adequately
addressed these claims in its opinions, so we decline to find waiver.
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e notice of its
intent to seek the mandatory minimum deprived him of the opportunity to
trafficking conviction. Appellant concludes the court erred in applying the
mandatory minimum to his PWID conviction at Case 283, and this Court
should vacate his judgment of sentence. We disagree.12
Our standard of review is as follows:
Generally, a challenge to the application of a mandatory
minimum sentence is a non-waiveable challenge to the
legality of the sentence. Issues relating to the legality of a
sentence are questions of law, as are claims raising a
standard of review
over such questions is de novo and our scope of review is
plenary.
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012),
appeal denied, 617 Pa. 629, 53 A.3d 756 (2012) (quoting Commonwealth
v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)).
The relevant provisions of Section 7508 are as follows:
§ 7508. Drug trafficking sentencing and penalties
(a) General rule.
of this or any other act to the contrary, the following
provisions shall apply:
* * *
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12
In his fifth issue, Appellant also repeats his earlier contentions that the
court should have imposed concurrent rather than consecutive sentences,
and the court erroneously ignored certain mitigating factors. We have
already decided these claims do not raise a substantial question.
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(3) A person who is convicted of violating section
(13)(a)(14), (30), or (37) of The Controlled Substance,
Drug, Device, and Cosmetic Act where the controlled
substance is coca leaves or is any salt, compound,
derivative or preparation of coca leaves or is any salt,
compound, derivative or preparation which is chemically
equivalent or identical with any of these substances or is
any mixture containing any of these substances except
decocainized coca leaves or extracts of coca leaves which
(extracts) do not contain cocaine or ecgonine 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
2.0 grams and less than ten grams; one year in
prison and a fine of $5,000 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: three years in
prison and $10,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity;
* * *
(b) Proof of sentencing.
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
section shall be provided after conviction and before
sentencing. The applicability of this section shall be
determined at sentencing. The court shall consider
evidence presented at trial, shall afford the Commonwealth
and the defendant an opportunity to present additional
evidence and shall determine, by a preponderance of the
evidence, if this section is applicable.
18 Pa.C.S.A. § 7508(a)(3)(i); (b) (emphasis added). Thus, where a
defendant is convicted of PWID involving cocaine weighing between two and
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ten grams, and the defendant has a previous drug trafficking conviction, the
7508(a)(3)(i).
reasonable notice of its intention to proceed under [the statute] after
Commonwealth v. Vasquez, 560 Pa.
381, 386, 744 A.2d 1280, 1283 (2000) (internal quotations omitted). What
purpose, and circumstances of each case. To be adequate, notice must be
Commonwealth v. Rizzo,
523 A.2d 809, 811 (Pa.Super. 1987). See e.g., Commonwealth v.
Taylor, 831 A.2d 661 (Pa.Super. 2003) (holding Commonwealth provided
reasonable notice where it stated intent to seek mandatory minimum
sentence two days before sentencing, and defense counsel did not seek
continuance or indicate he was unprepared to challenge application of
mandatory minimum); Commonwealth v. Norris, 819 A.2d 568 (Pa.Super.
2003) (holding Commonwealth provided reasonable notice where it included
in bill of information general notice of its intent to seek mandatory minimum
sentence); Commonwealth v. Saksek, 522 A.2d 70 (Pa.Super. 1987)
(h
sentence three days before sentencing was reasonable; if defendant was
truly uninformed of possibility of application of mandatory minimum and
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unprepared at sentencing to challenge application of statute, he could have
sought continuance). See also Commonwealth v. Bell, 537 Pa. 558, 645
A.2d 211 (1994), cert. denied, 513 U.S. 1153, 115 S. Ct. 1106, 130 L.Ed.2d
conviction and
error, where defense counsel admitted at sentencing hearing he was not
surprised Commonwealth was seeking mandatory minimum because defense
counsel received letter from deputy district attorney prior to trial indicating
Commonwealth would seek mandatory minimum if case went to trial; by
receiving notice prior to trial, Commonwealth provided notice earlier than is
required by statute).
Instantly, the Commonwealth charged Appellant at Case 282 with
PWID, conspiracy, and possession of a controlled substance; and charged
Appellant at Case 283 with the same offenses. In the criminal information
for each case, the Commonwealth noted its intent to seek increased
penalties if the offenses constituted Appe
follows:
NOTICE: If this is a second or subsequent offense under
35 [P.S.] 780-113(a)(30) or of a similar offense under any
statute of the United States or of any state, the defendant
may be imprisoned for a term up to twice the term
otherwise authorized, fined an amount up to twice that
otherwise authorized, or both (35 P.S. Section 780-115).
(Criminal Information, Case 282, filed 7/21/09, at 1); (Criminal Information,
Case 283, filed 7/21/09, at 1). On October 12, 2010, Appellant pled guilty
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at Case 282 to one count of possession of a controlled substance, and at
Case 283 to one count of PWID. Appellant subsequently filed a motion to
withdraw his guilty plea on November 30, 2010, complaining, inter alia, he
was unaware of the possibility of increased penalties based on his prior
PWID conviction at the time he entered his guilty plea, despite the language
in the criminal informations notifying Appellant of that possibility. On
January 27, 2011, the court granted Appella
on August 10, 2011, Appellant proceeded to re-trial on August 21, 2012. On
August 22, 2012, a jury found Appellant guilty of two counts each of PWID
and possession of a controlled substance. The court deferred sentencing
At the sentencing hearing on September 27, 2012, the Commonwealth
stated its intent to seek the mandatory minimum under Section
Significantly, Section 7508(a)(3)(i) imposes a far less severe penalty (a
mandatory minimum three year sentence) than the provision at 35 P.S. §
780-115 (providing maximum twenty year sentence for second or
subsequent PWID (cocaine) conviction),13 which the Commonwealth
indicated in both criminal informations. The Commonwealth explained at
sentencing that the PSI report showed Appellant had a prior PWID conviction
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13
The maximum sentence for a first time PWID (cocaine) offender is ten
years. See 35 P.S. § 780-113(f)(1.1).
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from 2003, which made the current PWID conviction a second or subsequent
drug trafficking offense for sentencing purposes. Appellant did not object to
the validity of the PSI report or dispute that he had a prior PWID conviction
at any point before or during sentencing. Consequently, the court granted
er mandatory minimum
Case 283.
The record makes clear the Commonwealth put Appellant on notice of
its intent to seek an increased sentence based on a prior PWID conviction in
the criminal informations. The criminal information for Case 282 and Case
283 stated Appellant was subject to an increased penalty for a second or
subsequent PWID offense. Appellant acknowledged notice of the
hen he withdrew his
guilty plea; in fact, Appellant moved to withdraw his plea because he faced
increased penalties based on his prior PWID conviction. Importantly,
Appellant does not dispute that his 2003 conviction was a PWID offense. He
complains only that the PSI report failed to specify the exact offense he was
convicted of in 2003. The record, however, belies his claim where the PSI
14
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14
The PSI report confirms Appellant pled guilty to PWID on December 12,
2003, in the Philadelphia County Court of Common Pleas, at docket # CP-
51-CR-1005031-2003.
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Given the procedural history of this case, Appellan
reasonable notice is disingenuous, where Appellant was on notice about
increased penalties due to a prior PWID conviction since the filing of the
criminal informations and withdrew his guilty plea because of that risk. See
generally Bell, supra; Norris, supra
proceed at sentencing under a different statute likewise providing for
sentencing increases based on a prior PWID conviction caused Appellant no
prejudice, where Section 7508 subjected Appellant to a far less severe
sentence. Compare 18 Pa.C.S.A. § 7508(a)(3)(i) with 35 P.S. § 780-115.
Moreover, Appellant could have sought a continuance. See Norris, supra;
Saksek, supra. Under these circumstances, we conclude Appellant had
reasonable notice and/or suffered no prejudice on this ground.15 See
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15
Alleyne
v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013),
in which the Court held that any fact increasing the mandatory minimum
sentence for a crime is considered an element of the crime to be submitted
to the fact-finder and found beyond a reasonable doubt. Id. Here, the
court imposed the mandatory minimum sentence under 7508(a)(3)(i). As
set forth above, pursuant to Section 7508(b), the court determines
applicability of the mandatory minimum at sentencing by a preponderance of
the evidence (arguably in violation of Alleyne). Nevertheless, the
Commonwealth presented evidence at trial from a forensic scientist at the
PSP crime lab that Appellant sold 0.94 grams of crack cocaine during the
first controlled buy, and 4.3 grams of crack cocaine during the second
controlled buy. Thus, the jury specifically heard evidence that Appellant sold
between 2-10 grams of cocaine. At no time did Appellant dispute the
gs, but also
concerning specific quantities of drugs. Thus, the Commonwealth
(Footnote Continued Next Page)
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Vasquez, supra; Rizzo, supra
relief. Accordingly, we affirm.
Judgment of sentence affirmed.
*JUDGE STABILE CONCURS IN THE RESULT.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2014
_______________________
(Footnote Continued)
established the necessary factual predicate to support imposition of the
mandatory minimum sentence based on weight of drugs, such that the jury
determined beyond a reasonable doubt Appellant possessed and delivered
crack cocaine between 2-10 grams. See Commonwealth v. Watley, 81
A.3d 108 (Pa.Super. 2013) (en banc) (holding imposition of mandatory
minimum sentence per 42 Pa.C.S.A. § 9712.1 mandating five year
minimum sentence for defendant convicted of PWID when at time of offense
defendant was in physical possession or control of firearm was proper,
where jury heard evidence and determined beyond reasonable doubt that
appellant possessed firearms in connection with drugs). The mandatory
conviction. The Alleyne Court made clear, however, its holding did not
apply to the fact of a prior conviction. Alleyne, supra at ___ n.1, 133 S. Ct.
at 2160 n.1, 186 L.Ed.2d at ___ n.1. Therefore, we see no issue implicating
Alleyne.
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