Com. v. Smith, N.

J-S62016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

NOLAN SMITH,

Appellant No. 2467 EDA 2013

Appeal from the Judgment of Sentence of July 29, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006107-2012

BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 25, 2014

Appellant, Nolan Smith, appeals from the judgment of sentence

entered on July 29, 2013 in the Criminal Division of the Court of Common

Pleas of Philadelphia County, as made final by the denial of his

post-sentence motion. We affirm Appellant’s convictions but, after sua

sponte review, are constrained to vacate his judgment of sentence and

remand for sentencing purposes.

On February 23, 2012, Philadelphia police officers conducted a traffic

stop of a vehicle operated by Appellant. During the stop, officers recovered

heroin and cocaine from the interior of Appellant’s automobile. On May 31,

2012, the Commonwealth filed an information charging Appellant with

possession of a controlled substance with the intent to deliver (PWID) and
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knowing and intentional possession of a controlled substance (K&I).1

Appellant moved to suppress the physical evidence on September 20, 2012,

alleging that the offers lacked reasonable suspicion to detain his vehicle. In

response, the trial court convened a hearing on Appellant’s suppression

motion on May 20, 2013. Set forth below is the trial court’s summary of the

facts established at the suppression hearing.

At [Appellant’s May 20, 2013 suppression hearing], the
Commonwealth presented the testimony of Philadelphia Police
Officer Kevin Devlin. Appellant [testified on his own behalf] and
presented the testimony of Philadelphia Police Officer Joseph
Carter[.]

On February 23, 2012, at approximately 7:30 p.m.[,] Officers
Kevin Devlin and Joseph Carter of the Philadelphia Police
Highway Patrol were in the parking lot of the Franklin Mills Mall
in the city and county of Philadelphia. Officers Devlin and Carter
were in the area to assist the Bensalem Police Department with
an investigation into an alleged drug delivery service. Bensalem
Police informed the [o]fficers that an individual with multiple
outstanding arrest warrants would be arriving at the Franklin
Mills Mall for a drug transaction. Bensalem Police also stated
that the suspect would be driving a silver Monte Carlo. The
original meeting place was to be outside the JC Penney at the
mall, but Bensalem police received information that it was
moved to the Dave and Busters parking lot due to police
presence. Officers Devlin and Carter set up surveillance near the
Dave and Busters along with several other Philadelphia and
Bensalem Police Officers. Officer Devlin observed a silver Monte
Carlo pull up in front of Dave and Busters and the car was
surrounded by his fellow [o]fficers. The driver of the car made a
fast motion toward the floor of the vehicle and was then
removed from the car by police. Officer Devlin approached the
car while the driver was being removed and observed a clear
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1
35 P.S. §§ 780-113(a)(30) and (a)(16).

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sandwich bag with numerous bundles of alleged heroin and a
knotted [] bag containing alleged cocaine. The bag was located
in plain view on the driver’s side floor in front of the seat. The
drugs field tested positive for heroin and cocaine. Police
recovered 71 packets of heroin in blue glassine packets stamped
with basketballs and [15.81] grams of cocaine. Appellant was
alone in the vehicle and the individual [who] Bensalem Police
had anticipated arriving was not at the scene.

Trial Court Opinion, 3/31/14, at 1-2.

The trial court denied Appellant’s suppression motion at the conclusion

of the May 20, 2013 hearing. Thereafter, the Commonwealth and Appellant

proceeded to a stipulated bench trial on July 29, 2013. Following trial, the

court found Appellant guilty of all charges and sentenced him to serve a

mandatory term of three to six years’ incarceration for his PWID conviction.2

Renewing his objection to the vehicle stop, Appellant moved for

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2
At Appellant’s stipulated trial, the Commonwealth marked and moved into
evidence a copy of the chemical analysis of the substances recovered from
Appellant’s vehicle. N.T., 7/29/13, at 13. The report reflected that officers
recovered 1.343 grams of heroin and 15.81 grams of cocaine from
Appellant’s automobile. Id. Although the record is less than clear, it
appears from this information that Appellant received a mandatory minimum
sentence based upon the weight of the seized substances, in particular the
cocaine found in his possession. See 18 Pa.C.S.A. §§ 7508(a)(3)(ii)
(imposing mandatory minimum sentence of three years in prison for
convictions involving at least ten grams but less than 100 grams of cocaine)
and 7508(a)(7)(i) (imposing mandatory minimum sentence of two years in
prison for convictions involving at least one gram but less than five grams of
heroin). We address the legality of this sentence below. The court ordered
no further punishment on Appellant’s K&I conviction.

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post-sentence relief on July 30, 2013. The trial court denied relief on August

9, 2013. This appeal followed.3

Appellant’s brief raises one issue for our consideration:

Did the trial court err in failing to suppress the physical evidence
recovered from inside the vehicle the defendant was driving
because the police did not have reasonable suspicion or probable
cause to initiate a car stop and remove the defendant from the
vehicle after which time the police observed and recovered the
physical evidence?

Appellant’s Brief at 4.

Appellant claims on appeal that the trial court erred in denying his

motion to suppress because the officers lacked reasonable suspicion that he

was engaged in criminal activity when they surrounded his vehicle at the

Franklin Mills Mall. We review such claims under a familiar standard and

scope of review.

Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court's factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court's factual findings are
supported by the record, we are bound by these findings and
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3
Appellant filed a notice of appeal to this Court on August 27, 2013. The
trial court directed Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) on or before October 8, 2013.
Appellant timely complied, preserving the lone issue raised in his brief.
Thereafter, the trial court issued its opinion under Pa.R.A.P. 1925(a) on
March 31, 2014.

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may reverse only if the court's legal conclusions are erroneous.
The suppression court's legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to our plenary
review.

Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining
a ruling on a pre-trial motion to suppress.

Commonwealth v. Ranson, 2014 WL 5018477, *2 (Pa. Super. 2014)

(internal citations and quotations omitted).

Neither Appellant nor the Commonwealth dispute that the officers

conducted an investigative detention when they surrounded and stopped

Appellant’s vehicle at the Franklin Mills Mall. We agree with the litigants

that, under these circumstances, an investigative detention occurred at this

moment since a reasonable person in Appellant’s position would not have

felt free to terminate the encounter. See Commonwealth v. Cruz 21 A.3d

1247, 1250 (Pa. Super. 2011) (“forcible stop of a vehicle constitutes an

investigative detention”) (citation omitted). Our task in this appeal, then, is

to determine whether, under the totality of circumstances, the officers

possessed reasonable suspicion to detain Appellant’s automobile for

investigative purposes. See id. (officer must establish reasonable suspicion

that criminal activity is under way to support investigative vehicle

detention).

“An investigatory stop subjects a person to a stop and a period of

detention, but does not involve such coercive conditions as to constitute the

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functional equivalent of an arrest. Such an investigatory stop is justified

only if the detaining officer can point to specific and articulable facts which,

in conjunction with rational inference derived from those facts, give rise to a

reasonable suspicion of criminal activity and therefore warrant the

intrusion.” Commonwealth v. Wiley, 858 A.2d 1191, 1194 (Pa. Super.

2004) (citation omitted), appeal granted, 875 A.2d 1075 (Pa. 2005), appeal

dismissed as improvidently granted, 904 A.2d 905 (Pa. 2006).

We recently elaborated upon the nature and scope of the

Commonwealth’s burden in establishing reasonable suspicion for purposes of

a constitutionally4 valid investigatory detention.

The reasonable suspicion necessary to conduct [an] investigative
detention[ is a less demanding standard than probable cause not
only in the sense that reasonable suspicion can be established
with information that is different in quantity or content than that
required to establish probable cause, but also in the sense that
reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.]

The determination of whether an officer had reasonable
suspicion that criminality was afoot so as to justify an
investigatory detention is an objective one, which must be
considered in light of the totality of the circumstances. In
assessing the totality of the circumstances, a court must give
weight to the inferences that a police officer may draw through
training and experience. Also, the totality of the circumstances
test does not limit our inquiry to an examination of only those
facts that clearly indicate criminal conduct. Rather, even a
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4
It is immaterial whether we review Appellant’s claim under the
Pennsylvania Constitution or the United States Constitution since the
substantive search and seizure standards are the same. See In the
Interest of D.M., 781 A.2d 1161, 1163 (Pa. 2001).

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combination of innocent facts, when taken together, may
warrant further investigation by the police officer.

Commonwealth v. Davis, 2014 WL 5140282, *2-3 (Pa. Super. 2014)

(internal citations, quotation marks, and indentations omitted). In

examining the quality and quantity of the information that prompted a stop,

we look only to the facts available when an officer conducts the detention,

and not to evidence or facts uncovered during an ensuing search. Wiley,

858 A.2d at 1194.

Appellant argues that the Commonwealth failed to demonstrate

reasonable suspicion because it did not establish the source, reliability, and

basis of knowledge upon which the detaining officers relied in stopping

Appellant’s vehicle. See Appellant’s Brief at 8. Specifically, Appellant claims

that:

Officers Carter and Devlin [] conducted an investigatory vehicle
stop of the silver Monte Carlo based on information from the
Bensalem Police Department that the driver of a silver Monte
Carlo was wanted on several body warrants and was involved in
illegal drug activity. No further information was presented at the
suppression hearing regarding the underlying source or reliability
of this information. No one from the Bensalem Police
Department appeared to testify as to the reliability of this
information or how the originator of this information knew
[Appellant] was wanted or was involved in drug activity. No one
from the Philadelphia Police Department testified as to the
underlying source, reliability or basis of knowledge of the
dispatch passed along to them by the Bensalem Police
Department.

Id. at 14. Analogizing the present case to one in which officers respond to

an anonymous call, Appellant argues that the predictive component of the

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information conveyed to Officers Carter and Devlin (relating to where and

when Appellant’s vehicle would arrive at Franklin Mills Mall) was insufficient,

without additional corroboration, to establish reasonable suspicion. Id. at

16-17.

The Commonwealth responds that the trial court properly denied

suppression. The Commonwealth argues that there is no per se rule

requiring an underlying informant to testify at a suppression hearing if the

testifying officers offer sufficient grounds to enable the court to assess the

legality of their actions. Commonwealth’s Brief at 7. Moreover, the

Commonwealth characterizes this case as one in which a tip received from a

known source (here, fellow officers from another police department) was

corroborated through the independent investigation and surveillance of the

officers. Id. at 10-11. The Commonwealth also argues that the tip upon

which the detaining officers relied involved precise insider information

concerning criminal activity, including a prediction about the arrival of

Appellant’s vehicle at an appointed location and at a designated time. The

Commonwealth buttresses this latter point by noting that the officers

received information about a mid-transaction change in the location where

Appellant’s automobile would arrive. According to the Commonwealth, this

aspect of the information relied upon by the detaining officers made their

informant’s tip more like an on-going report of a specific crime-in-progress

that warranted an immediate investigatory stop. Id. at 13.

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It is well-settled in Pennsylvania that a police officer need not

personally observe the illegal or suspicious behavior that forms the basis for

reasonable suspicion. Wiley, 858 A.2d at 1194; Commonwealth v.

Korenkiewicz, 743 A.2d 958, 963 (Pa. Super. 1999); Commonwealth v.

Wright, 672 A.2d, 826, 830 (Pa. Super. 1996). An officer is justified in

stopping a vehicle in reliance upon information conveyed by another officer

within the chain of command who possesses reasonable suspicion.

Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013);

Cruz, 21 A.3d at 1250 (“[E]ven where the officer who performs the stop

does not have reasonable suspicion, the stop is nonetheless valid if the radio

officer requesting the stop has reasonable suspicion.”); Commonwealth v.

Anthony, 977 A.2d 1182, 1187 (Pa. Super. 2009) (“Pennsylvania law

permits a vehicle stop based upon a radio bulletin if evidence is offered at

the suppression hearing to establish reasonable suspicion.”). The officer

with reasonable suspicion need not convey all background information to the

officer who actually effectuates the stop, so long as the Commonwealth

establishes at the suppression hearing that someone in the chain of

command had reasonable suspicion before the detention. Wiley, 858 A.2d

at 1197 n.4.

Where reasonable suspicion offered in support of an automobile stop

emanates from information furnished by a tipster, this Court has explained:

Reasonable suspicion, like probable cause, is dependent upon
both the content of information possessed by police and its

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degree of reliability. Both factors—quantity and quality—are
considered in the ‘totality of the circumstances—the whole
picture,’ that must be taken into account when evaluating
whether there is reasonable suspicion. Thus, if a tip has a
relatively low degree of reliability, more information will be
required to establish the requisite quantum of suspicion than
would be required if the tip were reliable.

When the underlying source of the officer's information is an
anonymous call, the tip should be treated with particular
suspicion. However, a tip from an informer known to the police
may carry enough indicia or reliability for the police to conduct
an investigatory stop, even though the same tip from an
anonymous informant would likely not have done so.

Indeed, identified citizens who report their observations of
criminal activity to police are assumed to be trustworthy, in the
absence of special circumstances, since a known informant
places himself at risk of prosecution for filing a false claim if the
tip is untrue, whereas an unknown informant faces no such risk.
When an identified third party provides information to the police,
we must examine the specificity and reliability of the information
provided. The information supplied by the informant must be
specific enough to support reasonable suspicion that criminal
activity is occurring. To determine whether the information
provided is sufficient, we assess the information under the
totality of the circumstances. The informer's reliability, veracity,
and basis of knowledge are all relevant factors in this analysis.

Washington, 63 A.3d at 803, quoting Commonwealth v. Barber, 889

A.2d 587, 593-594 (Pa. Super. 2005). Where a tip foretells future actions

that are not easily or ordinarily predicted, police corroboration of the

prediction itself can supply officers with reasonable suspicion that criminal

activity, such as the transportation of illicit drugs, is afoot. Commonwealth

v. Fell, 901 A.2d 542, 545 (Pa. Super. 2006).

The record confirms the trial court’s conclusion that the officers

possessed the requisite reasonable suspicion to justify an investigative

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detention of Appellant’s vehicle. At Appellant’s suppression hearing, Officer

Devlin testified that he was a 14-year veteran of the police force with eight

years of experience in narcotics enforcement. N.T., 5/20/13, at 5. At

approximately 7:30 p.m. or 7:40 p.m. on February 23, 2012, he was

present at the Franklin Mills Mall to assist the Bensalem Police Department

with an investigation into a drug delivery service. Id. at 5-6. Bensalem

police conveyed specific information to Officer Devlin to enable him to assist

in the investigation, including a description of the vehicle employed by the

service, the location of its anticipated arrival, and the identity of the

individual who was expected to make the delivery. Id. at 7. Officer Carter

confirmed that Bensalem police advised him and Officer Devlin that they

would encounter a man in a vehicle transporting narcotics packaged for sale

when he approached a specific location. Id. at 23. Officer Devlin testified

that the original anticipated arrival location was near the JC Penny store but

that a new arrival point (the Dave and Busters restaurant) had been selected

because of police presence. Id. at 8. As the Bensalem police predicted, a

silver Monte Carlo arrived at the Dave and Busters restaurant at 7:40 p.m.,

the anticipated time.5 Id. at 9. These facts show that Officers Devlin and

Carter acted in reliance upon insider information regarding the predicted

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5
Appellant was operating the vehicle instead of the individual anticipated by
the Bensalem police.

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arrival of the silver Monte Carlo at a designated place and time, which the

officers corroborated through their own surveillance efforts.

The cases cited by Appellant and other decisions issued by our

appellate courts do not convince us that the trial court erred in denying his

suppression motion. By way of example, Appellant primarily relies on

Commonwealth v. Queen, 639 A.2d 443 (Pa. 1994). In Queen, an officer

conducted a Terry6 stop and frisk of the defendant based exclusively upon a

detective’s statement that he matched the description of an individual

suspected in a robbery. The detaining officer did not conduct any

independent investigation. The detective did not testify at the suppression

hearing and the officer revealed that the detective never communicated the

facts upon which he relied in concluding that the defendant was involved in

the robbery. The Supreme Court in Queen held that the investigative

detention was invalid because the detective’s unsupported assertion was the

sole basis offered to support the officer’s actions and, therefore, the

suppression court was required to speculate as to whether reasonable

suspicion justified the intrusion. Other cases cited by Appellant involved

similar situations in which the detaining officers acted solely upon

information supplied by third parties and without independent investigation

or corroboration. See Commonwealth v. Hawkins, 692 A.2d 1068 (Pa.

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6
Terry v. Ohio, 392 U.S. 1 (1968).

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1997) (detention deemed unlawful where officer acted exclusively upon

anonymous and unverifiable tip communicated through police radio call);

see also Commonwealth v. Stevenson, 832 A.2d 1123 (Pa. Super. 2003)

(vehicle stop invalidated where officer made no independent inquiry and

acted upon stale information about driver and unsubstantiated radio

broadcast concerning driver’s possible involvement in drug activity);

Commonwealth v. Boyer, 345 A.2d 187 (Pa. Super. 1975) (vehicle stop

unjustified where information relayed by teletype lacked indicia of reliability

and defendant’s vehicle did not match description). Because the information

in this case emanated from a known source and was corroborated by

independent surveillance, the foregoing cases cited by Appellant are not

controlling.

In addition, the surveillance activities performed by Officers Devlin and

Carter confirmed the predictive accuracy of the inside information upon

which they relied. Thus, this case is readily distinguishable from

Commonwealth v. Goodwin, 750 A.2d 795 (Pa. 2000) and

Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000), wherein our

Supreme Court invalidated stops that did not involve the type of unique

predictive information that we find present in this case. See Fell, 901 A.2d

at 546 (distinguishing between tips that involve normal, public routines such

as those in Goodwin and Wimbush which cannot support reasonable

suspicion and confirmed tips revealing insight into an individual’s private

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itinerary that can reliably support an officer’s inference of on-going criminal

activity). Since the observations of the officers confirmed an inside source

for the information about an on-going drug delivery service and its

anticipated drop-off point on the evening in question, we conclude that the

officers possessed reasonable grounds to suspect that criminal activity was

afoot. Hence, Appellant is not entitled to relief on his drug convictions.

We turn now to consider the legality of Appellant’s mandatory

minimum sentence under 18 Pa.C.S.A. § 7508(a)(3)(ii). Although the

Commonwealth is correct that Appellant has not raised any issue relating to

the legality of his sentence, see Commonwealth’s Brief at 5 n.1, we note

that “[l]egality of sentence questions are not waivable and may be raised

sua sponte [on direct review] by this Court.” Commonwealth v. Watley,

81 A.3d 108, 118 (Pa. Super. 2013) (en banc). Moreover, this Court

recently held that “a challenge to a sentence premised upon [Alleyne v.

United States, 133 S.Ct. 2151 (U.S. 2013)] . . . implicates the legality of

the sentence and cannot be waived on appeal.” Commonwealth v.

Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc). Because, as

explained below, we are constrained by recent decisions of this Court to

conclude that Appellant’s sentence under § 7508 is unlawful, we are required

to vacate Appellant’s judgment of sentence and remand for resentencing.

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The jurisprudence of mandatory minimum sentencing in this

Commonwealth is rapidly changing and is currently in a great state of flux.7

We briefly review the decisional law that led this Court to declare in

Newman and its progeny that various statutes in Pennsylvania’s mandatory

minimum sentencing scheme do not pass constitutional muster.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States

Supreme Court held: “[o]ther 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.” Apprendi, 530 U.S. at 489. Thereafter, in Alleyne, the United

States Supreme Court expanded “Apprendi’s basic jury-determination rule

to mandatory minimum sentences.” Alleyne, 133 S.Ct. at 2167 (Breyer, J.,

concurring). Specifically, the Alleyne Court held that, where an

“aggravating fact” increases a mandatory minimum sentence, “the fact is an

element of a distinct and aggravated crime. [The fact] must, therefore, be

submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133

S.Ct. at 2162-2163.

Following Alleyne, an en banc panel from this Court decided Watley,

supra. In Watley, a jury found Mr. Watley guilty of PWID and firearm
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7
Recently, in light of Newman, this court issued an order granting en banc
reargument to consider the constitutionality of a mandatory minimum
sentence under Section 7508. See Commonwealth v. Velez, 350 MDA
2014 (Pa. Super. October 27, 2014).

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offenses. The trial court then sentenced Mr. Watley to a mandatory

minimum sentence pursuant to 18 Pa.C.S.A. § 9712.1 for being convicted of

PWID when, “at the time of the offense[,] the [defendant] . . . [wa]s in

physical possession or control of a firearm.” 18 Pa.C.S.A. § 9712.1(a);

Watley, 81 A.3d at 112-113.

Section 9712.1 enumerates certain substantive “aggravating facts” in

Section 9712.1(a) and, in Section 9712.1(c), the statute declares the

burdens of production and proof, as well as the procedures for alleging and

proving the aggravating facts. In relevant part, Section 9712.1 reads:

(a) Mandatory sentence.--Any person who is convicted of a
violation of [35 P.S. § 780-113(a)(30) (“PWID”)], 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 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.

...

(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 notice of
the Commonwealth’s intention to 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.

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Although the Watley Court declared that 18 Pa.C.S.A. § 9712.1 was

“no longer constitutionally sound in light of Alleyne,” the Watley Court held

that the defendant’s mandatory minimum sentence was nevertheless legal,

as the jury also found the defendant guilty of two firearms offenses.

Watley, 81 A.3d at 120-121. Thus, the panel in Watley held that Alleyne

was satisfied because “the uncontroverted evidence in the instant case

established that one firearm was located in the same glove compartment as

the drugs and another handgun was located on the passenger-side floor in

close proximity to the drugs, and the jury determined beyond a reasonable

doubt that Appellant possessed those firearms.” Watley, 81 A.3d at 121.

In so holding, the Watley Court explicitly determined that the “aggravating

facts,” contained in Section 9712.1(a), were “derive[d] wholly from the

jury’s verdict.”8 The Watley Court also implicitly, but necessarily,

determined that the unconstitutional portions of Section 9712.1 – found in

subsection (c) of the statute – were severable from the remainder of the

statute. See 1 Pa.C.S.A. § 1925 (regarding the severability of statutes).
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8
Support for the approach adopted by the Watley court emerges from a
decision in the Apprendi line of cases. See Blakely v. Washington, 542
U.S. 296, 303-304 (2004) (observing that “statutory maximum” for
Apprendi purposes represents the maximum sentence that can be imposed
on the basis of facts reflected in a jury’s verdict or admitted by the
defendant). Although the pronouncement in Blakely came in the context of
a determination of the statutory maximum, the statement reflects a common
sense assessment that the defendant’s right to a jury trial cannot be violated
where he either admits the relevant facts or the jury necessarily made the
findings relevant to the punishment that is ultimately imposed.

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Following Watley, an en banc panel from this Court decided

Newman. In Newman, the defendant was convicted of PWID and

sentenced to the mandatory minimum sentence under Section 9712.1.

Newman, 99 A.3d at 89. As quoted above, Section 9712.1 provides a five-

year mandatory minimum term of incarceration for PWID when, “at the time

of the offense[,] the [defendant] . . . [wa]s in physical possession or control

of a firearm.” 18 Pa.C.S.A. § 9712.1(a). On appeal, Mr. Newman claimed

that Alleyne rendered his mandatory minimum sentence illegal, because –

in his case – the trial court had determined the “aggravating facts” by a

mere preponderance of the evidence. Newman, 99 A.3d at 89.

The Newman Court held that Section 9712.1(c) was unconstitutional

and that the subsection was not severable from the remainder of the

statute. Thus, Newman declared that the mandatory minimum sentencing

scheme found in Section 9712.1 was unconstitutional in its entirety. The

Court held:

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 9712.1, then
Subsection (c) is the “enforcement” arm. Without Subsection
(c), there is no mechanism in place to determine whether the
predicate of Subsection (a) has been met.

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Newman, 99 A.3d at 101.9

Further, the Newman Court concluded that trial courts may not create

their own procedures for imposing mandatory minimum sentences in place

of the procedures contained in Section 9712.1(c). Id. at 102. According to

Newman, doing so would constitute an impermissible act of legislation by

the courts. Newman declared 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.” Newman, 99 A.3d at 102. The Newman Court thus vacated Mr.

Newman’s judgment of sentence and remanded the case for resentencing

“without consideration of any mandatory minimum sentence.” Id. at 103.

Newman was followed by our opinion in Commonwealth v.

Valentine, 2014 WL 4942256 (Pa. Super. 2014). In Valentine, the

Commonwealth charged Mr. Valentine with a number of crimes, including

robbery. In an attempt to avoid the mandatory minimum sentencing issues

recognized by Alleyne and its progeny, the Commonwealth amended the

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9
The concurring opinion in Newman agreed with majority in holding that
Mr. Newman’s mandatory minimum sentence was illegal under Alleyne and
that we were required to vacate Mr. Newman’s judgment of sentence and
remand for resentencing. Newman, 99 A.3d at 104 (Mundy, J. concurring).
However, the concurring judges concluded that the majority erred when it
struck down the entirety of Section 9712.1 as unconstitutional. Specifically,
the concurrence opined, “the [m]ajority’s voiding Section 9712.1 in its
entirety is contrary to the Statutory Construction Act, Watley, and beyond
the scope of Alleyne’s mandate.” Id. at 106.

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criminal information “to include the allegation that [Mr. Valentine] visibly

possessed a firearm, for purposes of the mandatory minimum sentencing

provisions of 42 Pa.C.S.A. § 9712, and to specify that [Mr. Valentine’s]

offenses were committed in or near public transportation for purposes of the

mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9713.”

Valentine, 2014 WL 4942256 at *1.

The jury found Mr. Valentine guilty of robbery. The jury also

specifically found, beyond a reasonable doubt, all of the substantive,

aggravating facts contained 42 Pa.C.S.A. §§ 9712 and 9713. Valentine,

2014 WL 4942256 at *1. As a result, the trial court sentenced Mr. Valentine

to the mandatory minimum term of five to ten years in prison for robbery, in

accordance with Sections 9712 and 9713.10 Id.

____________________________________________

10
42 Pa.C.S.A. §§ 9712 and 9713 have the same structure as the earlier-
discussed 42 Pa.C.S.A. § 9712.1. In relevant part, Section 9712 reads:

(a) Mandatory sentence.--Except as provided under section
9716 (relating to two or more mandatory minimum sentences
applicable), any person who is convicted in any court of this
Commonwealth of a crime of violence as defined in section
9714(g) (relating to sentences for second and subsequent
offenses), shall, if the person visibly possessed a firearm or a
replica of a firearm, whether or not the firearm or replica was
loaded or functional, that placed the victim in reasonable fear of
death or serious bodily injury, during the commission of the
offense, be sentenced to a minimum sentence of at least five
years of total confinement notwithstanding any other provision
of this title or other statute to the contrary. Such persons shall
not be eligible for parole, probation, work release or furlough.
(Footnote Continued Next Page)

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_______________________
(Footnote Continued)

(b) 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 notice of
the Commonwealth's intention to 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.

Section 9713 declares, in relevant part:

(a) Mandatory sentence.--Except as provided under section
9716 (relating to two or more mandatory minimum sentences
applicable), any person who is convicted in any court of this
Commonwealth of a crime of violence as defined in section
9714(g) (relating to sentences for second and subsequent
offenses), shall be sentenced to a minimum sentence of at least
five years of total confinement if the crime occurs in or near
public transportation as defined in subsection (b),
notwithstanding any other provision of this title or other statute
to the contrary.

...

(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 notice of the
Commonwealth's intention to 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.
(Footnote Continued Next Page)

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Mr. Valentine filed a direct appeal to this Court, wherein he claimed

that Newman rendered Sections 9712 and 9713 unconstitutional in their

entirety. Id. at *2. According to Mr. Valentine, since the entirety of the

mandatory minimum sentencing statutes were unconstitutional, his

mandatory minimum sentence was illegal – notwithstanding the fact that the

Commonwealth charged him with the necessary aggravating facts in the

information and the jury found the aggravating facts at trial, beyond a

reasonable doubt. Id. at *6.

A panel of this Court in Valentine concluded that, pursuant to

Newman, Sections 9712 and 9713 were wholly unconstitutional. Therefore,

the panel in Valentine concluded that Mr. Valentine’s sentence was illegal

and that it was required to vacate his judgment of sentence and remand for

resentencing “without consideration of any mandatory minimum sentence.”

Valentine, 2014 WL 4942256 at **8-9. The Valentine Court reasoned:

The trial court erroneously presupposed that only [Subsection
(b) of 9712 and] Subsection[] (c) of . . . 9713 (which permit a
trial judge to enhance the sentence based on a preponderance of
the evidence standard) were unconstitutional under Alleyne,
and that Subsections (a) of 9712 and 9713 survived
constitutional muster. By asking the jury to determine whether
the factual prerequisites set forth in § 9712(a) and § 9713(a)
had been met, the trial court effectively determined that the
unconstitutional provisions of [§ 9712(b)] and § 9713(c) were
_______________________
(Footnote Continued)

42 Pa.C.S.A. § 9713.

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severable. Our decision in Newman however holds that the
unconstitutional provisions of [§ 9712(b)] and § 9713(c) are not
severable but “essentially and inseparably connected” and that
the statutes are therefore unconstitutional as a whole. . . .

Moreover, Newman makes clear 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.”
[Newman, 99 A.3d at 102]. Therefore, the trial court lacked
the authority to allow the jury to determine the factual
predicates of §§ 9712 and 9713. See [Newman, 99 A.3d at
102-104] (recognizing that several trial courts of this
Commonwealth have found Section 9712.1 as a whole to be no
longer workable without legislative guidance).

Because Alleyne and Newman render §§ 9712 and 9713
unconstitutional, we vacate the judgment of sentence and
remand for the re-imposition of sentence without consideration
of any mandatory minimum sentence as provided by §§ 9712
and 9713.

Valentine, 2014 WL 4942256 at **8-9.

Given the dispositions and reasoning adopted and applied in Newman

and Valentine, we are obligated to follow this precedent and, in so doing,

constrained to conclude that 18 Pa.C.S.A. § 7508 is unconstitutional in its

entirety and that Appellant’s mandatory minimum sentence under 18

Pa.C.S.A. § 7508 is illegal.11 Certainly, 18 Pa.C.S.A. § 750812 is structured

____________________________________________

11
Appellant is entitled to the retroactive application of Alleyne.
Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983) (“where 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”); Newman, 99 A.3d at 90 (holding that Alleyne is to be
(Footnote Continued Next Page)

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_______________________
(Footnote Continued)

applied retroactively to cases pending on direct appeal). Further, since we
have held that an Alleyne issue “implicates the legality of the sentence and
cannot be waived on appeal,” we must sua sponte determine whether
Appellant’s mandatory minimum sentence is illegal under Alleyne.
Newman, 99 A.3d at 90-91.
12
Relevant to this case, 18 Pa.C.S.A. § 7508 provides:

(a) General rule.--Notwithstanding any other provisions of this
or any other act to the contrary, the following provisions shall
apply:

(3) A person who is convicted of violating [35 P.S. § 780-
113(a)(30) (“PWID”)] . . . where the controlled substance
is [cocaine] shall, upon conviction, be sentenced as set
forth in this paragraph:
...

(ii) when the aggregate weight of the compound or
mixture containing the substance involved is at least
ten grams and less than 100 grams; three years in
prison and a fine of $15,000[.00] or such larger
amount as is sufficient to exhaust the assets utilized in
and the proceeds from the illegal activity. . . .

...

(b) Proof of sentencing.--Provisions of this section 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 Commonwealth’s
intention to 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 evidence presented at trial, shall afford the
Commonwealth and the defendant an opportunity to
present necessary additional evidence and shall determine,
by a preponderance of the evidence, if this section is
applicable.

18 Pa.C.S.A. § 7508(a)(3)(ii) and (b).
(Footnote Continued Next Page)

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in the same manner as the statutes that were at issue in Newman and

Valentine – and, as was true with the statutes at issue in Newman and

Valentine, one particular subsection of 18 Pa.C.S.A. § 7508 is clearly

unconstitutional under Alleyne. See 18 Pa.C.S.A. § 7508(b). In particular,

Section 7508(b) contains the following unconstitutional burdens and

procedures: it declares that the substantive, “aggravating facts” contained

in Section 7508(a) are “not . . . an element of the crime;” it declares that

notice of either the “aggravating facts” or of the applicability of the

mandatory minimum sentencing statute is “not . . . required prior to

conviction;” it declares that the applicability of the mandatory minimum

statute “shall be determined at sentencing;” it declares that the

Commonwealth need only prove the “aggravating facts” by a preponderance

of the evidence; and, it declares that a judge – and not a jury – is to act as

the fact-finder for purposes of determining the “aggravated facts.” 18

Pa.C.S.A. § 7508(b). Alleyne has rendered all of these burdens and

procedures unconstitutional.

Pursuant to Newman and Valentine, we are constrained to conclude

that the unconstitutional portion of 18 Pa.C.S.A. § 7508 is unseverable from

the remainder of the statute.13 Hence, as we are without power to create or

_______________________
(Footnote Continued)

13
Watley allows a trial court to infer, from a jury’s verdict (and presumably
from admissions or stipulations made by a defendant), that the mandatory
(Footnote Continued Next Page)

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apply a sentencing procedure that would permit imposition of a mandatory

minimum sentence that passes constitutional muster, we must vacate

Appellant’s judgment of sentence and remand for resentencing, without

consideration of the mandatory minimum sentence.

Appellant’s convictions for possession with intent to distribute and

knowing and intentional possession of a controlled substance affirmed.

Judgment of sentence vacated. Case remanded for resentencing only.

Jurisdiction relinquished.

_______________________
(Footnote Continued)

minimum sentencing factors have been found beyond a reasonable doubt.
Under Newman and Valentine, however, this Court has held that certain
mandatory minimum sentencing statutes were unconstitutional in their
entirety and that the trial courts lack the power to adopt procedures to
impose sentences under the challenged statutes. Although there is
precedent from this Court where an en banc Superior Court panel has
overruled an earlier en banc Superior Court panel opinion, that has not
occurred here. See Commonwealth v. Johnson, 690 A.2d 274, 257 (Pa.
Super. 1997) (en banc) (expressly overruling the earlier en banc Superior
Court opinion in Commonwealth v. Garcia, 588 A.2d 951 (Pa. Super.
1991) (en banc)). As a result, our rulings in Newman and Valentine are
irreconcilable with our ruling in Watley, which has not been overruled and
remains valid law. We conclude, however, that vacating Appellant’s
sentence and remanding for resentencing is consistent with Newman and
Valentine, and will not offend Watley; thus, we elect to take this course.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2014

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