Commonwealth v. Newman

J. E01002/14

2014 PA Super 178

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES NEWMAN, : No. 1980 EDA 2012
:
Appellant :

Appeal from the Judgment of Sentence, June 13, 2012,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0000068-2011

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
DONOHUE, ALLEN, LAZARUS, MUNDY, AND OLSON, JJ.

OPINION BY FORD ELLIOTT, P.J.E.:FILED AUGUST 20, 2014

Appellant brings this appeal challenging the constitutionality of one of

§ Alleyne v.

United States, U.S. , 133 S.Ct. 2151 (2013). We find that Alleyne

does indicate that the sentencing practice under Section 9712.1 is

sentence and remand for resentencing.

Following controlled drug buys involving appellant at Apartment No. 2

of the Station Avenue apartment complex in Glenside, police executed a

search warrant at that residence. Police discovered a large quantity of crack

cocaine, drug paraphernalia in the form of plastic baggies and digital scales,
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and a handgun and bullets under a mattress in a bedroom. The bedroom

was located across a hallway from a bathroom where over 60 grams of

cocaine were found in the toilet. The distance between the gun and the

cocaine was approximately six to eight feet. Appellant and his

co-conspirators were arrested and brought to trial.

On February 14, 2012, a jury convicted appellant of two counts of

possession (cocaine), one count of possession of drug paraphernalia, one

count of dealing in proceeds of unlawful activities, one count of possessing

an instrument of crime, and five counts of criminal conspiracy. 1 On

February 23, 2012, the Commonwealth filed a Notice of Intent to Seek

Mandatory Sentence under Section 9712.1, which enhances the minimum

sentence where a firearm is found on a drug dealer, an accomplice, or in the

vicinity of the contraband. On June 13, 2012, the trial court sentenced

of th

imprisonment on one of the conspiracy convictions. On July 3, 2012, the

Appellant appealed his conviction to this court. This court affirmed the

judgment of sentence on June 12, 2013. On June 17, 2013, just five days

later, the United States Supreme Court issued its opinion in Alleyne. On

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June 25, 2013, appellant filed with this court an application for

reconsideration/reargument which we granted for en banc reargument. We

now address those issues raised upon reargument:

I. WHAT IS THE APPLICABILITY OF THE UNITED

ALLEYNE V. UNITED STATES, U.S. ,
133 S.CT. 2151 (2013), AND DOES THE
DECISION RENDER 42 PA.C.S. § 9712.1,
UNCONSTITUTIONAL IN THAT THE
MANDATORY MINIMUM STATUTE ALLOWS THE
TRIAL JUDGE TO DETERMINE WHETHER THE
EVIDENCE TRIGGERS THE APPLICATION OF
THE MANDATORY MINIMUM SENTENCE,

AMENDMENT RIGHTS PURSUANT TO THE
UNITED STATES CONSTITUTION, AND

PURSUANT TO ARTICLE I, SECTION IX, OF THE
PENNSYLVANIA CONSTITUTION WHICH
GUARANTEE THE APPELLANT TO A TRIAL BY
JURY AND A DETERMINATION OF GUILT
BEYOND A REASONABLE DOUBT BY THAT
JURY?

II. DOES ALLEYNE V. UNITED STATES, U.S.
, 133 S.CT. 2151 (2013), APPLY
RETROACTIVELY TO THE INSTANT MATTER, IN
THAT THIS CASE WAS DECIDED BY THE
SUPERIOR COURT ON JUNE 12, 2013,
ALLEYNE WAS DECIDED JUNE 17, 2013, BUT
APPELLANT FILED A TIMELY REQUEST FOR
REARGUMENT AND RECONSIDERATION, AND

IS NOT FINAL?

III. HAS THE CONTROLLING OR DIRECT RELEVANT
AUTHORITY RELIED UPON BY THE COURT

1
35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32); 18 Pa.C.S.A. §§ 5111,
907(a), and 903(a)(1), respectively.

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BEEN EXPRESSLY REVERSED, MODIFIED,
OVERRULED OR OTHERWISE MATERIALLY
AFFECTED DURING THE PENDENCY OF THE
MATTER SUB JUDICE, WITH NO NOTICE GIVEN
TO THE COURT PURSUANT TO PA.R.A.P.
2501(B)?

retroactive application of Alleyne Alleyne

are moot. We note in passing that the Commonwealth does not contend

that Alleyne does not apply retroactively to appellant, and we now find that

Allyene does apply retroactively.

Schriro v. Summerlin, 542 U.S. 348, 351

(2004), citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Although

Alleyne was announced, we retain jurisdiction for 30 days thereafter, to

modify or rescind our holding, or grant reargument as we have here, so long

as the appellant does not seek allowance of appeal before our supreme

court. See 42 Pa.C.S.A. § 5505. Moreover, our decision does not become

final until 30 days have elapsed and the time for filing a petition for

allowance of appeal with our supreme court expires. See Pa.R.A.P.,

Rule

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direct appeal when Alleyne was handed down, and the decision may be

se retroactively.2 However, there is a further

complication that must be addressed before Alleyne may be considered.

To be entitled to the retroactive application of a new constitutional

rule, a defendant must have raised and preserved the issue in the court

below:

[W]here an appellate decision overrules prior law
and announces a new principle, unless the decision
specifically declares the ruling to be prospective only,
the new rule is to be applied retroactively to cases
where the issue in question is properly preserved at
all stages of adjudication up to and including any
direct appeal.

Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983) (emphasis

added).

While appellant challenged his mandatory minimum sentence under

Section 9712.1 on direct appeal, his issue was not based upon Alleyne or

upon a similar theory. Nonetheless, appellant is still entitled to the

retroactive application of Alleyne.

In Commonwealth v. Roney, 866 A.2d 351 (Pa. 2005), cert.

denied, Roney v. Pennsylvania, 546 U.S. 860 (2005), our supreme court

reviewed the application of Apprendi v. New Jersey, 530 U.S. 466 (2000),

Apprendi or a similar theory had not been

2
The Commonwealth concedes that appellant
direct appeal. (Commonwealth brief at 8.)

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preserved below.3

premised upon Apprendi implicates the legality of that sentence, it cannot

Roney, 866 at 359, n.32. Thus, our supreme court

went on to examine Apprendi

that a challenge to a sentence premised upon Alleyne likewise implicates

the legality of the sentence and cannot be waived on appeal. Therefore, we

find that Alleyne may be applied retroactively to appellant.4 We now turn

Section 9712.1 unconstitutional under Alleyne.

We begin by noting the provisions of Section 9712.1 at issue:

§ 9712.1. Sentences for certain drug offenses
committed with firearms

(a) Mandatory sentence.--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),
[FN1] known as The Controlled Substance,
Drug, Device and Cosmetic Act, when at the

accomplice is in physical possession or control
of a firearm, whether visible, concealed about

proximity to the controlled substance, shall
likewise be sentenced to a minimum sentence
of at least five years of total confinement.

3
Apprendi will be discussed infra.
4
Although not directly on point, another en banc panel of this court has
applied Alleyne retroactively. See Commonwealth v. Watley, 81 A.3d
108 (Pa.Super. 2013) (en banc), appeal denied, A.3d , 1033 MAL
(Pa. 2014).

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(c) Proof at sentencing.--Provisions of this
section shall not be an element of the crime,
and notice thereof to the defendant shall not
be required prior to conviction, but reasonable

proceed under this section shall be provided
after conviction and before sentencing. The
applicability of this section shall be determined
at sentencing. The court shall consider any
evidence presented at trial and shall afford the
Commonwealth and the defendant an
opportunity to present any necessary
additional evidence and shall determine, by a
preponderance of the evidence, if this section
is applicable.

42 Pa.C.S.A. § 9712.1 (in pertinent part).

Under the sentencing scheme of Section 9712.1, possession of a

firearm is considered a sentencing factor to be determined by the trial court

upon a preponderance of the evidence, and not an element of the underlying

crime to be determined by the jury beyond a reasonable doubt. This sort of

sentencing scheme was deemed constitutional under a prior ruling of the

United States Supreme Court.

In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the United States

Supreme Court reviewed the constitutionality of another one of

§ 9712,

imprisonment for the visible possession of a firearm during the commission

of certain specified crimes of violence. Like Section 9712.1, Section 9712

provided that the visible possession was not an element of the crime, but

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was a sentencing factor to be determined by the trial court upon a

preponderance of the evidence. The McMillan court ruled that a state could

make visible possession of a firearm a sentencing factor rather than an

element of the underlying crime, and that the sentencing factor could be

proven by merely a preponderance of the evidence:

The Commonwealth appealed all four cases
[involving Section 9712] to the Supreme Court of
Pennsylvania. That court consolidated the appeals
and unanimously concluded that the Act is consistent
with due process. Commonwealth v. Wright, 508

argument was that visible possession of a firearm is
an element of the crimes for which they were being
sentenced and thus must be proved beyond a
reasonable doubt under In re Winship, 397 U.S.
358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and
Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881,
44 L.Ed.2d 508 (1975). After observing that the
legislature had expressly provided that visible

§ 9712(b), and that the reasonable-doubt standard

at 359, quoting Patterson v. New York, 432 U.S.
197, 211, n. 12, 97 S.Ct. 2319, 2327, n. 12, 53
L.Ed.2d 281 (1977), the court rejected the claim that
the Act effectively creates a new set of upgraded

Section 9712, which comes into play only after the
defendant has been convicted of an enumerated
felony, neither provides for an increase in the
maximum sentence for such felony nor authorizes a
separate sentence; it merely requires a minimum
sentence of five years, which may be more or less
than the minimum sentence that might otherwise
have been imposed. And consistent with Winship,
Mullaney, and Patterson
presumption as to any essential fact and places no

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the p
Pa., at 35, 494 A.2d, at 359.

....

Petitioners argue that under the Due Process
Clause as interpreted in Winship and Mullaney, if a
State wants to punish visible possession of a firearm
it must undertake the burden of proving that fact
beyond a reasonable doubt. We disagree. Winship

accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to
constitute the crime with
U.S., at 364, 90 S.Ct., at 1073. In Mullaney v.
Wilbur, we held that the Due Process Clause

reasonable doubt the absence of the heat of passion
on sudden provocation when the issue is properly

S.Ct., at 1892. But in Patterson, we rejected the

t beyond
a reasonable doubt. 432 U.S., at 214, 97 S.Ct., at
2329; see also id., at 207, 97 S.Ct., at 2325 (State

fact, the existence or nonexistence of which it is
willing to recognize as an exculpatory or mitigating
circumstance affecting the degree of culpability or

law placing on defendants charged with murder the
burden of proving the affirmative defense of extreme
emotional disturbance.

Patterson stressed that in determining what
facts must be proved beyond a reasonable doubt the

Clause requires the prosecution to prove beyond a
reasonable doubt all of the elements included in the
definition of the offense of which the defendant is

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Id., at 210, 97 S.Ct., at 2327 (emphasis
added).

....

We believe that the present case is controlled
by Patterson, our most recent pronouncement on
this subject, rather than by Mullaney. As the
Supreme Court of Pennsylvania observed, the
Pennsylvania Legislature has expressly provided that
visible possession of a firearm is not an element of
the crimes enumerated in the mandatory sentencing
statute, § 9712(b), but instead is a sentencing factor
that comes into play only after the defendant has
been found guilty of one of those crimes beyond a
reasonable doubt. Indeed, the elements of the
enumerated offenses, like the maximum permissible
penalties for those offenses, were established long
before the Mandatory Minimum Sentencing Act was
passed. While visible possession might well have
been included as an element of the enumerated
offenses, Pennsylvania chose not to redefine those
offenses in order to so include it, and Patterson
teaches that we should hesitate to conclude that due
process bars the State from pursuing its chosen
course in the area of defining crimes and prescribing
penalties.

McMillan, 477 U.S. at 83-86 (footnote omitted).

It was clear, however, that the McMillan decision was influenced by

minimum sentence and not the maximum:

The Court in Mullaney observed, with respect
to the main criminal statute invalidated in that case,
that once the State proved the elements which Maine
required it to prove beyond a reasonable doubt the

from a nominal fine to a mandatory life
421 U.S., at 700, 95 S.Ct., at 1890. In the present
case the situation is quite different. Of the offenses

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enumerated in the Act, third-degree murder, robbery
as defined in 18 Pa.Cons.Stat. § 3701(a)(1) (1982),
kidnaping, rape, and involuntary deviate sexual
intercourse are first-degree felonies subjecting the

§ 1103(1). Voluntary manslaughter and aggravated
assault as defined in § 2702(a)(1) are felonies of the
second degree carrying a maximum sentence of
10 years. § 1103(2). Section 9712 neither alters
the maximum penalty for the crime committed nor
creates a separate offense calling for a separate
penalty; it operates solely to limit the sentencing
ty within the
range already available to it without the special
finding of visible possession of a firearm.
Section
by raising to five years the minimum sentence which
may be imposed within the statutory plan. The
statute gives no impression of having been tailored
to permit the visible possession finding to be a tail
which wags the dog of the substantive offense.

the
offenses for which they are being punished that
Pennsylvania has in effect defined a new set of
upgraded felonies would have at least more
superficial appeal if a finding of visible possession
exposed them to greater or additional punishment,
cf. 18 U.S.C. § 2113(d) (providing separate and
greater punishment for bank robberies accomplished

it does not.

McMillan, 477 U.S. at 87-88 (footnote omitted).

Fourteen years after handing down McMillan, the United States

Supreme Court decided that the precepts of McMillan did not apply to

mandatory sentencing schemes that affected the maximum sentence. In

Apprendi v. New Jersey, the petitioner fired several shots into the home

of an African-American family, who had recently moved into the previously

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all-white neighborhood. The petitioner thereafter made a statement

indicating that his motivation had been racially based. At the time,

New

affected the maximum sentence. The petitioner eventually pleaded guilty,

and after a separate sentencing hearing, the trial court determined by a

motivated and that the hate crime enhancement applied. After the

New Jersey Supreme Court affirmed, the United States Supreme Court

granted certiorari.

The Apprendi court found that sentencing enhancements that affect

the maximum sentence must be determined by a jury beyond a reasonable

doubt:

The question whether Apprendi had a constitutional
right to have a jury find such [racial] bias on the
basis of proof beyond a reasonable doubt is starkly
presented.

Our answer to that question was foreshadowed
by our opinion in Jones v. United States, 526 U.S.
227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999),
construing a federal statute. We there noted that

Amendment and the notice and jury trial guarantees
of the Sixth Amendment, any fact (other than prior
conviction) that increases the maximum penalty for
a crime must be charged in an indictment, submitted

Id., at 243, n. 6, 119 S.Ct. 1215. The Fourteenth
Amendment commands the same answer in this case
involving a state statute.

....

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In sum, our reexamination of our cases in this
area, and of the history upon which they rely,
confirms the opinion that we expressed in Jones.
Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt. With
that exception, we endorse the statement of the rule
set forth in the concurring opinions in that case:
slature to remove
from the jury the assessment of facts that increase
the prescribed range of penalties to which a criminal
defendant is exposed. It is equally clear that such
facts must be established by proof beyond a

Apprendi, 530 U.S. at 475-476, 490.

The Apprendi court specifically disavowed that it was overruling

McMillan, but limited McMillan to cases that do not involve the imposition

of a sentence more severe than the statutory maximum. Apprendi, 530

U.S. at 487, n.13. Moreover, the Apprendi court clearly explained that it

constitutionally afoul:

That point applies as well to the constitutionally

McMillan, 477 U.S., at 86,
106 S.Ct. 2411 (noting that the sentencing factor-
visible possession of a firearm-
included as an element of the enumerated

e of the factor here, the relevant
inquiry is one not of form, but of effect -- does the
required finding expose the defendant to a greater

verdict? [FN19]

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[FN19] This is not to suggest that the

meaning. The term appropriately
describes a circumstance, which may be
either aggravating or mitigating in
character, that supports a specific
sentence within the range authorized by

guilty of a particular offense. On the

increase beyond the maximum
authorized statutory sentence, it is the
functional equivalent of an element of a
greater offense than the one covered by

squarely within the usual definition of an
See post, at
2368-2369 (THOMAS, J., concurring)
(reviewing the relevant authorities).

....

The preceding discussion should make clear
McMillan is likewise
misplaced. The differential in sentence between
what Apprendi would have received without the
finding of biased purpose and what he could receive
with it is not, it is true, as extreme as the difference
between a small fine and mandatory life
imprisonment. Mullaney, 421 U.S., at 700, 95 S.Ct.
1881. But it can hardly be said that the potential
-from 10 years to 20-has
no more than a nominal effect. Both in terms of
absolute years behind bars, and because of the more
severe stigma attached, the differential here is
unquestionably of constitutional significance. When

the evidence authorizes an increase in the maximum
punishment

McMillan, 477 U.S., at 88, 106 S.Ct. 2411.

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Apprendi, 530 U.S. at 494, 495.5

Following Apprendi, the United States Supreme Court made a notable

attempt to harmonize Apprendi and McMillan. In Harris v. United

States, 536 U.S. 545 (2002), the Court reviewed a federal statute that

operated much like the one in McMillan, providing greater and greater

minimum sentences if, during a crime involving violence or drug trafficking,

the actor possessed a firearm, brandished the firearm, or discharged the

preponderance of the evidence, that the petitioner had brandished a firearm

and increased his minimum sentence accordingly.

The Harris court first observed that the federal statute does not

indicate whether brandishing a firearm is an element of the underlying

offense or whether it is merely a sentencing factor, but that it would appear

5
Apprendi has hitherto found little application in Pennsylvania because of
the indeterminate sentencing scheme used here:

scheme, with its guidelines and suggested minimum

in its nature. Commonwealth v. Yuhasz, 592 Pa.
120, 923 A.2d 1111, 1117 (2007). Therefore, in
Pennsylvania, a sentence imposed for a given
conviction does not implicate Apprendi concerns
unless that sentence exceeds the applicable
statutory maximum.

Commonwealth v. Gordon, 942 A.2d 174, 182 (Pa. 2007), cert. denied,
Gordon v. Pennsylvania, 553 U.S. 1024 (2008).

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to be the latter. Harris, 536 U.S. at 552. In finding that McMillan was still

sound, the Harris court went on to distinguish McMillan and Apprendi:

Confident that the statute does just what
McMillan
argument that § 924(c)(1)(A)(ii) is unconstitutional
because McMillan is no longer sound authority.
Stare decisis
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,
405, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis,
J., dissenting), but the doctr
Welch v. Texas
Dept. of Highways and Public Transp., 483 U.S.
468, 494, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987).
Even in constitutional cases, in which stare decisis
concerns are less pronounced, we will not overrule a
Arizona
v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81
L.Ed.2d 164 (1984).

The special justification petitioner offers is our
decision in Apprendi, which, he says, cannot be
reconciled with McMillan. Cf. Ring v. Arizona, 536
U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)
(overruling Walton v. Arizona, 497 U.S. 639, 110
S.Ct. 3047, 111 L.Ed.2d 511 (1990), because
Walton and Apprendi
not find the argument convincing. As we shall
explain, McMillan and Apprendi are consistent
because there is a fundamental distinction between
the factual findings that were at issue in those two
cases. Apprendi said that any fact extending the
um

considered an element of an aggravated crime-and
thus the domain of the jury-by those who framed the
Bill of Rights. The same cannot be said of a fact
increasing the mandatory minimum (but not
extending the sentence beyond the statutory

judge to impose the minimum with or without the
finding. As McMillan recognized, a statute may

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reserve this type of factual finding for the judge
without violating the Constitution.

Harris, 536 U.S. at 556-557 (plurality).

As noted, on June 17, 2013, the United States Supreme Court

announced its decision in Alleyne v. United States. The petitioner in

Alleyne was challenging the same federal sentence enhancing statute as in

Harris. The petitioner and an accomplice robbed a bank manager at

gunpoint. The jury convicted the petitioner and indicated on the verdict slip

that he had possessed a firearm during a crime of violence, but did not

indicate that he had brandished the weapon. Nonetheless, the District Court

found by a preponderance of the evidence that the petitioner had, in fact,

brandished the firearm, and increased the minimum sentence accordingly.

The Court of Appeals affirmed, citing Harris.

The Alleyne court directly overruled Harris, and by implication,

McMillan also. The Alleyne court found no basis for distinguishing between

the floor and the ceiling of the sentencing range and found that raising the

floor aggravated the sentence that was imposed just as raising the ceiling

did, and that, therefore, any fact that served to aggravate the minimum

sentence must be found by a jury beyond a reasonable doubt:

Consistent with common-law and early
American practice, Apprendi concluded that any
e the prescribed range of penalties

elements of the crime. Id., at 490, 120 S.Ct. 2348
(internal quotation marks omitted); id., at 483,
n.

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defendant to a punishment greater than that
otherwise legally prescribed were by definition

that the Sixth Amendment provides defendants with
the right to have a jury find those facts beyond a
reasonable doubt. Id., at 484, 120 S.Ct. 2348.
While Harris limited Apprendi to facts increasing
the statutory maximum, the principle applied in
Apprendi applies with equal force to facts increasing
the mandatory minimum.

It is indisputable that a fact triggering a
mandatory minimum alters the prescribed range of
sentences to which a criminal defendant is exposed.
Apprendi, supra, at 490, 120 S.Ct. 2348; Harris,
536 U.S., at 575, 582, 122 S.Ct. 2406 (THOMAS, J.,
dissenting). But for a finding of brandishing, the
penalty is five years to life in prison; with a finding of
brandishing, the penalty becomes seven years to life.
Just as the maximum of life marks the outer
boundary of the range, so seven years marks its
floor. And because the legally prescribed range is
the penalty affixed to the crime, infra, this page, it
follows that a fact increasing either end of the range
produces a new penalty and constitutes an
ingredient of the offense. Apprendi, supra, at 501,
120 S.Ct. 2348 (THOMAS, J., concurring); see also
Bishop § 598, at 360 361 (
particular punishment to be inflicted on those who
commit it under special circumstances which it

those special circumstances must be specified in the
indictment (emphasis added)); 1 F. Wharton,
Criminal Law § 371, p. 291 (rev. 7th ed. 1874)
(similar).

It is impossible to dissociate the floor of a
sentencing range from the penalty affixed to the
crime. See Harris, supra, at 569, 122 S.Ct. 2406
(BREYER, J., concurring in part and concurring in
judgment) (facts increasing the minimum and facts

specified both the floor and ceiling of sentence

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ranges, which is evidence that both define the legally
prescribed penalty. See, e.g., supra, at 2158
2159; N.Y. Penal Code §§ 231 232, p. 70 (1882)
(punishment for first-degree robbery was 10 to
20 -degree robbery was
5 to 15 years); Va.Code ch. 192, §§ 1 2, p. 787
(2d ed. 1860) (arson committed at night was
punishable by 5 to 10 years; arson committed during
the day was 3 to 10 years). This historical practice
allowed those who violated the law to know,
ex ante, the contours of the penalty that the
legislature affixed to the crime and comports with
the obvious truth that the floor of a mandatory range
is as relevant to wrongdoers as the ceiling. A fact
that increases a sentencing floor, thus, forms an
essential ingredient of the offense.

Moreover, it is impossible to dispute that facts
increasing the legally prescribed floor aggravate the
punishment. Harris, supra, at 579, 122 S.Ct. 2406
(THOMAS, J., dissenting); [United States v.]
, 560 U.S. [218], at , 130 S.Ct. 2169
(THOMAS, J., concurring in judgment). Elevating the
low-end of a sentencing range heightens the loss of

empowered, by invoking the mandatory minimum, to
require the judge to impose a higher punishment
Apprendi, supra, at 522, 120
S.Ct. 2348 (THOMAS, J., concurring). Why else
would Congress link an increased mandatory
minimum to a particular aggravating fact other than
to heighten the consequences for that behavior?
See McMillan, 477 U.S., at 88, 89, 106 S.Ct. 2411

Harris, supra, at
580, 122 S.Ct. 2406 (THOMAS, J., dissenting). This
reality demonstrates that the core crime and the fact
triggering the mandatory minimum sentence
together constitute a new, aggravated crime, each
element of which must be submitted to the jury.

Alleyne, 133 S.Ct. at 2160-2161 (underlining emphasis added).

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Thus, in Alleyne, the United States Supreme Court finally repudiated

the Apprendi and McMillan maximum sentence/minimum sentence

dichotomy. Plainly, Section 9712.1 can no longer pass constitutional

muster. It permits the trial court, as opposed to the jury, to increase a

that the defendant was dealing drugs and possessed a firearm, or that a

firearm was in close proximity to the drugs. Under Alleyne, the possession

of the firearm must be pleaded in the indictment, and must be found by the

jury beyond a reasonable doubt before the defendant may be subjected to

an increase in the minimum sentence. As that is not the case instantly, we

nd for resentencing

without regard for any mandatory minimum sentence prescribed by

Section 9712.1.

The Commonwealth puts forward two arguments in response to

resentenced without regard to Section 9712.1. First the Commonwealth

argues that the United States Supreme Court has indicated that Apprendi

based claims (and by implication, Alleyne based claims also) are subject to

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harmless error analysis.6 See Washington v. Recuenco, 548 U.S. 212,

218-222 (2006), adopting the harmless error standard of Neder v. United

States, 527 U.S. 1 (1999).

In Neder, the trial court omitted from its jury instructions an element

of the crime of which the petitioner was charged and convicted:

Neder was indicted on, among other things,
9 counts of mail fraud, in violation of 18 U.S.C.
§ 1341; 9 counts of wire fraud, in violation of
§ 1343; 12 counts of bank fraud, in violation of
§ 1344; and 2 counts of filing a false income tax
return, in violation of 26 U.S.C. § 7206(1). The
fraud counts charged Neder with devising and
executing various schemes to defraud lenders in
connection with the land acquisition and
development loans, totaling over $40 million. The
tax counts charged Neder with filing false statements
of income on his tax returns. According to the

6
Pennsylvania, reflects the

Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994);
Commonwealth v. Story, 383 A.2d 155 (Pa. 1978). We have described
the proper analysis as follows:

Harmless error exists if the record demonstrates
either: (1) the error did not prejudice the defendant
or the prejudice was de minimis; or (2) the
erroneously admitted evidence was merely
cumulative of other untainted evidence which was
substantially similar to the erroneously admitted
evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error
was so insignificant by comparison that the error
could not have contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671-672 (Pa. 2014), quoting, in
part, Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997), cert.
denied, Hawkins v. Pennsylvania, 523 U.S. 1083 (1998).

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Government, Neder failed to report more than
$1 million in income for 1985 and more than
$4 million in income for 1986, both amounts
reflecting profits Neder obtained from the fraudulent
real estate loans.

In accordance with then-extant Circuit

Court instructed the jury that, to convict on the tax

used in th

Ibid. The court gave a
similar instruction on bank fraud, id., at 249, and
subsequently found, outside the presence of the
jury, that the evidence established the materiality of
all the false statements at issue, id., at 167. In
instructing the jury on mail fraud and wire fraud, the
District Court did not include materiality as an
element of either offense. Id., at 253 255. Neder
again objected to the instruction. The jury convicted
Neder of the fraud and tax offenses, and he was

supervised release, and $25 million in restitution.

Neder, 527 U.S. at 6.

The Neder court first decided that a harmless error analysis was

appropriate in most constitutional contexts. Neder, 527 U.S. at 8. The

Neder court then found that the failure to instruct the jury was harmless

because the evidence establishing materiality was overwhelming:

At trial, the Government introduced evidence
that Neder failed to report over $5 million in income
from the loans he obtained. The failure to report
such substantial income incontrovertibly establishes

determination of his income tax liability. The
evidence supporting materiality was so
overwhelming, in fact, that Neder did not argue to

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the jury and does not argue here that his false
statements of income could be found immaterial.
Instead, he defended against the tax charges by
arguing that the loan proceeds were not income
because he intended to repay the loans, and that he
reasonably believed, based on the advice of his
accountant and lawyer, that he need not report the
proceeds as income. App. 208 211, 235 (closing
argument). In this situation, where a reviewing
court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict
would have been the same absent the error, the
erroneous instruction is properly found to be
harmless. We think it beyond cavil here that the

Neder, 527 U.S. at 16-17.

Thus, in Neder, the jury made no finding on the element of

materiality, but the instruction error was harmless because if the jury had

been properly instructed, it would have undoubtedly found materiality

because the evidence of materiality was overwhelming. Instantly, the

mandatory minimum sentence was imposed because, under Section 9712.1,

contraband. Under Alleyne

to be submitted to the jury to make such a finding. The Commonwealth

argues that under Neder, we may regard the failure here to instruct the jury

was harmless because the evidence that the firearm and the drug

undoubtedly have reached that result.

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J. E01002/14

We cannot find that the error here was harmless, because the

overwhelming. As previously noted, the drug contraband was found in a

bathroom. The firearm was found under a mattress in a bedroom across the

hallway, and the actual distance between the contraband and the firearm

was six to eight feet. Recently, our supreme court discussed at length the

n Section 9712.1. See

Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013), generally. The

Hanson

imprecise and observed the differing conclusions as to its meaning both

among the courts of this Commonwealth and among the courts of other

jurisdictions. Hanson, 82 A.3d at 1037-1038, and otherwise, generally. If

rors would

The Commonwealth also raises a related argument, citing

Commonwealth v. Sanes, 955 A.2d 369, 377 (Pa.Super. 2008), appeal

denied, 972 A.2d 521 (Pa. 2009). The Commonwealth contends that the

jury would undoubtedly have found that appellant was in constructive

possession of the firearm and that any Alleyne error was harmless on this

nstructive

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J. E01002/14

possession of the firearm satisfies the possessory element/sentencing factor

of Section 9712.1 under Sanes.

Sanes did not hold that constructive possession satisfies the

possessory element/sentencing factor of Section 9712.1. The constructive

possession analysis in Sanes pertained to a weapon offense, 18 Pa.C.S.A.

§ 6105, of which the appellant was also convicted. In point of fact, as to

Section 9712.1, Sanes held that because there was no evidence that the

appellant was in actual physical possession or control of a firearm, or that a

firearm was within reach, the Commonwealth had to show that the firearm

was in close proximity to the drug contraband. Sanes then found that the

items were in close proximity.7 Sanes simply did not hold that constructive

possession of a firearm satisfied the possessory element/sentencing factor of

Section 9712.1.

On the other hand, the Hanson court analyzed Section 9712.1 at

length in an attempt to determine what constituted possession of a firearm

for purposes of Section 9712.1. After extensive legal analysis, the court

Accordingly, we hold that, for purposes of

means the knowing exercise of power over a
weapon, which may be proven through evidence of a
direct, physical association between the defendant
and the weapon or evidence of constructive control.
Constructive control, in this setting, an analogue to

7
Interestingly, the firearm that was found to be in close proximity to the
drug contraband in Sanes was six to eight feet apart.

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J. E01002/14

constructive possession, entails the ability to
exercise a conscious dominion and the intent to do
so.

Hanson, 82 A.3d at 1036-1037.8

Again, we find that if learned jurists can arrive at the meaning of

extensive analysis, there is no guarantee that a lay jury will undoubtedly

arrive at the same conclusion. This is especially so when operating under

legal constructs like constructive possession, which is foreign to lay persons,

and who may assume that when a statute requires possession it means only

actual possession. Even with instruction from a trial court, we cannot find

that the jury would likely reach the same result. Since we find no guarantee

that a jury would undoubtedly find under the evidence that appellant

possessed the firearm, we cannot find harmless error on this basis either.

The second argument put forward by the Commonwealth contends

that if we find Section 9712.1 unconstitutional under Alleyne, and that the

error was not harmless, then the proper remedy is to remand for the

empanelling of a sentencing jury for the determination, beyond a reasonable

doubt, as to whether the conditions obtain under the evidence such that a

mandatory minimum sentence should be imposed. Without directly arguing

the

8
We note that the Hanson court did not address the constitutionality of
Section 9712.1, but remanded for resentencing allowing the trial court to
address the applicability of Alleyne.

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J. E01002/14

Section 9712.1, which sets the predicate for the mandatory minimum

sentence, survives constitutional muster, and that only Subsection (c), which

directs that the trial court shall determine the predicate of Subsection (a) by

a preponderance of the evidence, fails. In other words, the Commonwealth

is contending that we may sever and retain those parts of Section 9712.1

that are not constitutionally infirm. This is also the position taken by Judge

Mundy in her concurring opinion. We respectfully disagree.9

Pennsylvania law provides for the severing of statutes where one part

of a statute is found unconstitutional:

9
As noted in dicta in Watley, Section 9712.1 is no longer constitutionally
sound in light of Alleyne. We disagree with the characterization by the
concurrence that Watley noted that only Section 9712.1(c) is
unconstitutional. Concurring Opinion at 3. Watley did not address the
issue of severing Section 9712.1; rather, it merely cataloged various
mandatory minimum sentencing provisions of which Section 9712.1(c)
happens to be one. Watley did not opine that only Section 9712.1(c) is
unconstitutional:

The Alleyne decision, therefore, renders those
Pennsylvania mandatory minimum sentencing
statutes that do not pertain to prior convictions FN3
constitutionally infirm insofar as they permit a judge

based on a preponderance of the evidence
standard.4

4. See e.g., 42 Pa.C.S. § 9712(c); 42 Pa.C.S.
§ 9712.1(c); 42 Pa.C.S. § 9713(c); 42 Pa.C.S.
§ 9718(c); 42 Pa.C.S. § 9719(b); 18 Pa.C.S.
§ 7508(b); 18 Pa.C.S. § 6317(b).

Watley, 81 A.3d at 117 n.4 (footnote 3 omitted).

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§ 1925. Constitutional construction of statutes

The provisions of every statute shall be severable. If
any provision of any statute or the application
thereof to any person or circumstance is held invalid,
the remainder of the statute, and the application of
such provision to other persons or circumstances,
shall not be affected thereby, unless the court finds
that the valid provisions of the statute are so
essentially and inseparably connected with, and so
depend upon, the void provision or application, that
it cannot be presumed the General Assembly would
have enacted the remaining valid provisions without
the void one; or unless the court finds that the
remaining valid provisions, standing alone, are
incomplete and are incapable of being executed in
accordance with the legislative intent.

1 Pa.C.S.A. § 1925.

We find that Subsections (a) and (c) of Section 9712.1 are essentially

and inseparably connected. Following Alleyne, Subsection (a) must be

regarded as the elements of the aggravated crime of possessing a firearm

while trafficking drugs. If Subsection (a) is the predicate arm of

Section

Subsection (c), there is no mechanism in place to determine whether the

predicate of Subsection (a) has been met.

g jury

would require this court to manufacture whole cloth a replacement

enforcement mechanism for Section 9712.1; in other words, the

Commonwealth is asking us to legislate. We recognize that in the

prosecution of capital cases in Pennsylvania, there is a similar, bifurcated

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J. E01002/14

process where the jury first determines guilt in the trial proceeding (the guilt

phase) and then weighs aggravating and mitigating factors in the sentencing

proceeding (the penalty phase). However, this mechanism was created by

the General Assembly and is enshrined in our statutes at 42 Pa.C.S.A.

§ 9711. We find that it is manifestly the province of the General Assembly

to determine what new procedures must be created in order to impose

mandatory minimum sentences in Pennsylvania following Alleyne. We

cannot do so.

Finally, we note that Alleyne and the possibility of severance of

Section 9712.1 have arisen in several of our courts of common pleas.10

Although we are not bound by those decisions, we find a review of their

analyses salutary:

Moving forward, the Commonwealth proposes that

of a firearm in connection with his alleged drug
offense be submitted on the verdict slip as a special
question for the jury.

Undoubtedly, the legislature intended to give
defendants who possess firearms in connection with
their drug offenses harsher penalties. However, the
legislature also intended those penalties to be
imposed according to a very specific procedure -- the
issue of firearm possession must be decided by the
judge, at sentencing, by a preponderance of the
evidence. The Commonwealth asks the Court to
have the issue of firearm possession decided by a
jury, at trial, beyond a reasonable doubt.

10
Under these cases, severing Section 9712.1 has been found to be
unworkable and the section has been ruled unconstitutional in its entirety.
These cases are currently before the supreme court on direct review.

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J. E01002/14

The Court recognizes the difficulty Alleyne has
caused and the creative solution the Commonwealth
offers in response. However, we find that the valid
provisions of § 9712.1 are so essentially and
inseparably connected with § 9712.1(c) that
severance is not possible. If the Court severs
§ 9712.1(c), we are left without a method of finding
the facts necessary to apply the mandatory minimum
sentence. Right now, the Court can only impose
§
using an unconstitutional procedure. At best, the
ion would have the court
arbitrarily pick which legislative directives to follow
while ignoring others. At worst, the Commonwealth
asks the Court to essentially rewrite the statute and
replace the unconstitutional procedure with a
procedure that has not been legislatively or
specifically judicially directed. It is clearly the
province of the legislature, not this Court, to make
such procedural determinations.

Commonwealth v. Shifler, No. CP-28-CR-0000263-2013, entered April 21,

2014, slip. op. at 16-17 (Judge Carol L. Van Horn, Franklin County), on

appeal at 42 MAP 2014.

simply substitute a trial by jury for the existing
language is appealing in its simplicity, the problem is
that we find it violates our constitutional principles
that underscore our system of government. The
overall effect of the Common Pleas decisions which
have found the provisions severable is to pick one

and decide that it is more important than the rest of

manner it did. Clearly, the [L]egislature in the
offending language that provided for a trial by judge
and a preponderance of the evidence test intended
to dictate the manner in which the facts that would
support a mandatory sentence were to be
determined. For the Court now to take on that

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J. E01002/14

important role and effectively take it away from the
[L]egislature with the stroke of a pen, or to attempt
to decide which parts of the statute were more
important to the [L]egislature, offends the
separation of powers that exist between the
branches of government.

Commonwealth v. Weyant, No. CP-07-CR-0000568, 574, 583-2013;

Commonwealth v. Morgan, No. CP-07-CR-0001029, 1032-2013, entered

June 9, 2014, slip op. at 17 (en banc, Blair County) (finding 42 Pa.C.S.A.

§ 9712.1, 18 Pa.C.S.A. § 6317 (drug free school zones), and 18 Pa.C.S.A.

§ 7508 (drug trafficking sentencing) unconstitutional and non-severable), on

appeal at 20-22 WAP 2014 and 23 WAP 2014, respectively.

While the Commonwealth clearly is correct that
unconstitutional provisions of a statute may be

in enacting that statute, the undersigned believes
that this simply is not possible in the instant
situation, where the constitutional and
unconstitutional provisions of the mandatory
minimum statutes are inextricably interwoven. In

imposition of mandatory minimum sentences, the
Commonwealth would have us ignore the

such sentences be found by a judge and not a jury;
that the defendant need not be informed of the
applicability of the mandatory sentence prior to
sentencing; and that the applicable standard be one
of preponderance of the evidence. The undersigned
believes it is for the legislature, and not this court, to
make such determinations. Further, and crucially,

unconstitutional provisions within the statutes, the
Commonwealth is essentially asking this court to
rewrite them, by imposing different burdens of proof
and notification than the legislature imposed.

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Commonwealth v. Khalil Brockington, No. CP-46-CR-0009311-2012;

Commonwealth v. Khalil A. Blakeney, No. CP-46-CR-0002521-2013;

Commonwealth v. William Bates, No. CP-46-CR-0000139-2013, entered

March 21, 2014, slip op. at 4-5 (Judge William J. Furber, Jr., Montgomery

bills of information to include factual allegations supporting mandatory

minimum sentences and finding 42 Pa.C.S.A. § 9712.1, 18 Pa.C.S.A. § 6317,

and 18 Pa.C.S.A. § 7508 unconstitutional and non-severable), on appeal at

36 MAP 2014, 37 MAP 2014, and 38 MAP 2014, respectively.

It would appear clear that the very trial courts entrusted with the

imposition of mandatory minimum sentences after Alleyne have found

Section 9712.1 as a whole to be no longer workable without legislative

guidance.

Accordingly, having found that Alleyne v. United States renders

42 Pa.C.S.A. §

of sentence and remand for the re-imposition of sentence without

consideration of any mandatory minimum sentence provided by

Section 9712.1.

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Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

Bender, P.J.E., Panella, J., Donohue, J., Allen, J., and Lazarus, J. join.

Mundy, J. files a Concurring Opinion in which Olson, J. joins and
Gantman, P.J. concurs in the result.
Gantman, P.J. and Olson, J. concur in the result of the majority
opinion.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/20/2014

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