J-E01004-14
2014 PA Super 289
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE VARGAS,
Appellant No. 1415 EDA 2012
Appeal from the Judgment of Sentence Entered January 12, 2012
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001895-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
PANELLA, J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J.,
and OLSON, J.
CONCURRING AND DISSENTING OPINION BY BENDER, P.J.E:
FILED DECEMBER 31, 2014
After careful review, I must respectfully dissent. While I agree with
the Majority that the evidence was sufficient to prove that Appellant
constructively possessed the drug packaging material and heroin residue
found in the hotel room, I disagree with the Majority that the evidence was
sufficient to prove that a conspiracy existed between Appellant and Mr.
Saldana which “encompassed, as its object, the cutting and packaging of the
377.73 grams of uncut heroin that was discovered in Mr. Saldana’s vehicle.”
Majority Decision at 29. Accordingly, I would reverse Appellant’s convictions
for conspiracy and PWID. Furthermore, even if the evidence were sufficient
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to support Appellant’s convictions for those crimes, I join the Majority in its
determination that the mandatory minimum sentence imposed for his PWID
conviction is illegal because 18 Pa.C.S. § 7508 “is unconstitutional in its
entirety. Majority Decision at 35. Nevertheless, even if Section 7508 could
survive constitutional scrutiny, I would still conclude that Appellant’s
sentence is illegal because his stipulation to the drug weight triggering the
mandatory minimum provided by Section 7508 does not circumvent the
dictates of Alleyne v. United States, 133 S.Ct. 2151 (2013).
I.
In reviewing the sufficiency of the evidence, I am cognizant that this
Court must view “all the evidence admitted at trial, together with all
reasonable inferences which can be drawn therefrom, in the light most
favorable to the Commonwealth[]” and determine if “the jury (or the court
as fact-finder) could have properly found that each element of the offense
was proven beyond a reasonable doubt.” Commonwealth v. Scott, 597
A.2d 1220, 1221 (Pa. Super. 1991) (citations omitted). However,
it is just as important to remember that the inferences must flow
from facts and circumstances proven in the record, and must be
of “such volume and quality as to overcome the presumption of
innocence and satisfy the jury of the accused’s guilt beyond a
reasonable doubt. Commonwealth v. Clinton, 391 Pa. 212,
219, 137 A.2d 463, 466 (1958). The trier of fact cannot base a
conviction on conjecture and speculation and a verdict which is
premised on suspicion will fall even under the limited scrutiny of
appellate review.
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Commonwealth v. Gruff, 822 A.2d 773, 784 (Pa. Super. 2003) (Bender, J.
concurring and dissenting) (quoting Scott, 597 A.2d at 1221) (emphasis
added in Gruff omitted).
Applying these standards to the instant facts, I concede that the
evidence was adequate to prove that “Appellant constructively possessed the
heroin residue and drug paraphernalia that was discovered in the ‘heroin
mill’ of a hotel room….” Majority’s Decision at 13. However, for the reasons
that follow, I cannot agree with the Majority’s conclusion that “Appellant is
criminally liable for the substantive offense of possessing the 377.73 grams
of raw, uncut heroin that was discovered in Mr. Saldana’s vehicle[]” because
Appellant was “a member of an ongoing conspiracy with Mr. Saldana” which
“encompassed, as its object, the cutting and packaging of” those drugs.
Majority Decision at 13-14, 29.
Initially, the Commonwealth did not present evidence proving the
extent of Appellant’s involvement in the ‘mobile heroin mill,’ other than his
presence in the hotel room.1 More importantly, the Commonwealth provided
no evidence of the nature or degree of the relationship between Appellant
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1
While a drug dog positively indicated on Appellant’s vehicle, I believe it is
speculative to conclude that Appellant transported the drug paraphernalia to
the hotel room where no other evidence suggested as much. I also note
that it is curious that the Commonwealth was able to obtain a video
surveillance tape of Mr. Saldana arriving at the hotel room, yet produced no
video of Appellant’s entering the room with that contraband.
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and Mr. Saldana, or their respective roles in the drug distribution operation.
There was also no evidence demonstrating that Appellant knew about the
drugs located in the secret compartment in Mr. Saldana’s vehicle.
What the Commonwealth’s evidence did prove was that Mr. Saldana
arrived at the hotel room approximately one minute before Officer Clee
entered the parking lot. See Majority Decision at 9. Mr. Saldana
approached and entered the hotel room empty handed. Id. He did not
bring with him the 377.73 grams of heroin, instead leaving those drugs in a
secret compartment in his vehicle. Mr. Saldana also left his jewelry in his
vehicle, which Officer Clee recognized as a sign that Mr. Saldana “was about
to engage in a fight[] or that[,] as a drug dealer[,] he had a fear of being
robbed.” Majority Decision at 2 (quoting N.T. Trial, 10/17/11, at 18-19).
Viewing this evidence in the light most favorable to the
Commonwealth, it indicated - at most - that Mr. Saldana may have been
about to enter a conspiratorial relationship with Appellant and Mr. Carrasco
to distribute the raw heroin left inside his vehicle. However, the
Commonwealth failed to proffer evidence proving that Appellant and Mr.
Saldana actually entered into such an agreement with a shared criminal
intent. See Commonwealth v. Fisher, 80 A.3d 1186, 1190-1191 (Pa.
2013) (setting forth elements of criminal conspiracy). Indeed, the evidence
suggested that at the point when Mr. Saldana arrived, he did not even trust
that Appellant would not rob him, making it unreasonable to infer that the
two men had established a conspiratorial relationship involving over
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$100,000 worth of heroin. Moreover, evidence that ‘thousands of bags of
heroin’ had been cut and packaged before Mr. Saldana arrived at the hotel
room does not prove that Appellant and Mr. Saldana had entered into a
conspiracy to cut and distribute the drugs discovered in the secret
compartment of Mr. Saldana’s vehicle.
In sum, I believe that the evidence presented by the Commonwealth
suggests that Appellant and Mr. Saldana had some sort of an association,
and both were individually involved to some extent in a major heroin
distribution operation. However, the evidence is not sufficient to establish
that these two men entered a conspiratorial relationship encompassing the
cutting and packaging of the heroin secreted in Mr. Saldana’s vehicle.
Accordingly, I would reverse Appellant’s convictions for conspiracy and
PWID.
II.
Nevertheless, even if the evidence were sufficient to sustain
Appellant’s PWID conviction, I join the Majority’s conclusion that Appellant’s
sentence is illegal, as this Court is compelled to find 18 Pa.C.S. § 7508
unconstitutional. See Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc). Furthermore, in Commonwealth v. Watley, 81
A.3d 108 (Pa. Super. 2013) (en banc), our Court noted that 42 Pa.C.S. §
9712.1 was “no longer constitutionally sound in light of Alleyne….” Id. at
113 n.2. However, we declined to address the constitutionality of that
provision because Watley did not raise that issue on appeal. Id. at 113 n.2.
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We then upheld Watley’s mandatory sentence under section 9712.1, finding
that the dictates of Alleyne were satisfied. In our more recent en banc
decision in Newman, we addressed the constitutionality of section 9712.1 in
light of Alleyne, despite the appellant’s failure to preserve the issue below,
because “a challenge to a sentence premised upon Alleyne … implicates the
legality of the sentence” and, thus, it “cannot be waived on appeal.”
Newman, 99 A.3d at 90. We ultimately held that the same mandatory
sentencing statute at issue in Watley – 42 Pa.C.S. § 9712.1 – is
unconstitutional. Therefore, our decision in Watley is no longer good law in
light of Newman.
Moreover, I write separately to note an additional and independent
ground that renders Appellant’s sentence illegal. The legality of Section
7508 notwithstanding, Appellant’s stipulation to the weight of the drugs
which triggered the mandatory minimum sentence imposed in this case does
not satisfy, or otherwise circumvent, the dictates of Alleyne v. United
States, 133 S.Ct. 2151 (2013), as that stipulation was made before
Alleyne was decided.
Appellant’s stipulation to the authenticity and accuracy of the Lab
Report detailing the weight of heroin seized in this case does not save
Appellant’s mandatory minimum sentence from direct scrutiny under
Alleyne. Simply put, such a stipulation has radically different consequences
in the post-Alleyne era than it did pre-Alleyne. Consequently, I would
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conclude that stipulations to drug weights made prior to the time that
Alleyne was decided should not be treated as satisfying Alleyne.
As I predicted in the dissent I wrote in Commonwealth v. Kleinicke,
895 A.2d 562 (Pa. Super. 2006) (en banc) (Bender, J., dissenting):
The rationale underlying Blakely[2] and Booker[3] seems
undeniable, a system of sentencing that attributes a significant
portion of a criminal defendant's punishment to a finding of fact
made by a judge upon a preponderance of the evidence standard
as opposed to a finding by jury utilizing a beyond reasonable
doubt standard is in derogation of a defendant's right to trial by
jury and violates due process even if the sentence ultimately
imposed falls under the statutorily authorized limit for the crime
in question.
Id. at 587-88.
Although my dissenting position in Kleinicke was ultimately vindicated
by the United States Supreme Court in Alleyne, the Kleinicke majority’s
position was standing precedent in this Commonwealth at the time of
Appellant’s trial. That position held that the mandatory sentencing
provisions of 18 Pa.C.S. § 7508, the same statute at issue in this case, 4 only
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2
Blakely v. Washington, 542 U.S. 296 (2004) (applying the rule in
Apprendi v. New Jersey, 530 U.S. 466 (2000), to Washington State's
determinate sentencing scheme).
3
United States v. Booker, 543 U.S. 220 (2005) (applying the rule in
Apprendi to the Federal Sentencing Guidelines).
4
At issue in Kleinicke was 18 Pa.C.S. § 7508(a)(1)(iii), which set forth a
mandatory minimum sentence for the offense of PWID of “five years in
prison and a fine of $50,000 or such larger amount as is sufficient to
exhaust the assets utilized in and the proceeds from the illegal activity”
(Footnote Continued Next Page)
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regulated the minimum sentence and, therefore, “did not offend Apprendi,
Blakely, or Booker….” Kleinicke, 895 A.2d at 574. This is precisely the
logic rejected in Alleyne, which held that “there is no basis in principle or
logic to distinguish facts that raise the maximum [sentence] from those that
increase the minimum [sentence]….” Alleyne, 133 S.Ct. at 2163.
Operating under the rubric set forth by the Kleinicke majority,
Appellant’s stipulation to the weight of the seized heroin did not constitute a
fact that impacted the factfinder’s determination of guilt under the beyond a
reasonable doubt standard.5 Indeed, 18 Pa.C.S. § 7508(b) itself provides
that:
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.
_______________________
(Footnote Continued)
where “the amount of marijuana involved is at least 50 pounds, or at least
51 live plants….” Although the instant case involves a mandatory minimum
sentence for the offense of PWID pursuant to Section 7508(a)(7)(iii), the
Alleyne implications are identical.
5
This should be distinguished from the Lab Report’s identification of the
seized substance as heroin, which certainly was a relevant fact to the
determination of Appellant’s guilt for PWID.
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18 Pa.C.S. § 7508(b) (emphasis added). Now, however, “[w]hen a finding
of fact alters the legally prescribed punishment so as to aggravate it, the
fact necessarily forms a constituent part of a new offense and must be
submitted to the jury” and found beyond a reasonable doubt. Alleyne, 133
S. Ct. at 2162.
The only practical effect of Appellant’s stipulation regarding the weight
of the seized heroin was the relinquishment of his ability to contest that
weight at sentencing, where, under Kleinicke and 18 Pa.C.S. § 7508(b), the
lesser, preponderance of the evidence standard applied. Pre-Alleyne, it
simply did not matter if the Commonwealth could not prove, beyond a
reasonable doubt, the weight of a drug for purposes of Section 7508. It did
matter pre-Alleyne, however, whether the Commonwealth could convince
the sentencing court of that weight by a preponderance of the evidence.
Thus, a reasonable defense attorney, pre-Alleyne, would not do any
disservice to his client by conceding the weight of the drugs seized if the
Commonwealth could satisfy the lesser burden of proof at sentencing. This
was true, even if a rational argument could have been made, or evidence
produced, that would have made proving the weight under the higher
burden of proof more difficult. Indeed, such a decision might have been
made to serve judicial economy so as not to burden the trial courts with
unnecessary litigation. Juxtaposed with the higher, post-Alleyne standard
of proof for the same fact, however, it is illogical to believe that a competent
defense attorney would evaluate the decision to stipulate to the weight of a
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controlled substance contained within a lab report in the same manner as
that attorney might have done pre-Alleyne.
The general rule that a stipulation is treated as proof beyond a
reasonable doubt of the stipulated fact is, in these narrow circumstances, a
grave injustice. In reality, such pre-Alleyne stipulations only had the
practical effect of conceding that the Commonwealth could prove the weight
of the drugs by a preponderance of the evidence at sentencing. To read any
more into Appellant’s stipulation in this case does a great disservice to
Appellant’s Sixth Amendment rights as articulated in Alleyne. Thus, in
addition to the Majority’s well-reasoned conclusion that 18 Pa.C.S. § 7508 is
unconstitutional under Newman, I would also conclude that Appellant’s
mandatory minimum sentence is illegal because his pre-Alleyne stipulation
to the weight of the drugs involved did not constitute proof beyond a
reasonable doubt as required by Alleyne.
Judges Donohue and Lazarus join this concurring and dissenting
opinion.
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