J-S05043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DESSIE REWLIS SEATON, III
Appellant No. 1238 WDA 2014
Appeal from the Judgment of Sentence entered July 19, 2013
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0003652-2012
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 19, 2015
Appellant, Dessie Rewlis Season, III, appeals from the judgment of
sentence entered for his conviction of drug crimes. We reject Appellant’s
assignments of error. We, however, sua sponte conclude that Appellant’s
mandatory minimum sentence under 18 Pa.C.S.A. § 7508 is illegal because
we have declared that statute unconstitutional. See Commonwealth v.
Fennell, 105 A.3d 13 (Pa. Super. 2014). Therefore, we vacate and remand
for resentencing.
Officers of the Erie Police Department received information that
Appellant and Jamal Hokes were transporting heroin to Erie from Detroit.
On November 9, 2012, two officers set up surveillance at the Amtrak train
station. The officers saw two men leave the train with luggage and get into
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a car driven by a third man, Danny Keefer. The officers’ information
implicated Keefer, as well.
The men drove away, and the officers followed. The car stopped at a
convenience store in the City of Erie, and Appellant went inside. One of the
officers pulled his car into an adjacent parking spot, unnoticed by Hokes or
Keefer. When Appellant returned, the officer got out, displayed his badge,
and asked to speak to the car’s occupants. The officers spoke to Appellant
and the others separately. Appellant told the officers he had a black luggage
bag. They discovered that Keefer had heroin in his possession. Keefer
admitted that Appellant and Hokes were his drug suppliers and he picked
them up at the train station.
The officers detained Appellant and Hokes. A drug dog sniffed the car
and alerted to the presence of drugs. The officers impounded the car and
obtained a search warrant. Inside the trunk, they found around 50 grams of
heroin inside a yellow Lorna Doone cookie sleeve, inside a blue duffel bag.
Appellant was charged with possession with intent to deliver a controlled
substance (PWID), possession of a controlled substance, and conspiracy to
commit PWID.1
At trial, Hokes and Keefer testified for the Commonwealth. The jury
convicted Appellant of all counts. The trial court sentenced Appellant to 3 –
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1
35 P.S. § 780-113(a)(30) and (16), and 18 Pa.C.S.A. § 903(a),
respectively.
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10 years in prison. Appellant’s sentence included a mandatory minimum of
three years in prison for PWID. Appellant then appealed.2
Appellant presents four issues for our review:
1. Did the trial court deny Appellant his right to due process and
effective assistance [sic] in denying his motino [sic] to quash
filed by the defense because the criminal complaint had not
been supported by an affidavit of probable cause?
2. Did the trial court err in failing to determine that law
enforcement did not err in failing fo [sic] apply for an
anticipatory search warrant?
3. Did the trial court abuse its discretion when it permitted
allegations of Appellant’s drug dealing activities that did not
pertain to the incident at [sic] question in the trial to be
disclosed to the jury, when that disclosure[ ]was prejudicial to
the jury [sic]?
4. Was the Appellant denied a fair trial when the Commonwealth
failed to disclose exculpatory information pertaining to
Richard Ferrell Kemp?
Appellant’s Brief at i-ii, 1-2 (numbering added and all-capitalized font
eliminated).
In his first argument, Appellant claims the trial court erred in denying
his motion to quash the criminal complaint, which he claims lacked an
affidavit of probable cause.
This issue is moot for two reasons. A defendant cannot be discharged
for a defect in, among other things, “the form or content of a complaint,”
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2
This Court dismissed Appellant’s initial appeal, at No. 1241 WDA 2013,
after his court-appointed counsel failed to file a brief. The trial court
reinstated Appellant’s direct appeal rights.
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unless the defect is prejudicial to the defendant’s rights. Pa.R.Crim.P. 109.
Any defect in the complaint (assuming, arguendo, prejudice to Appellant)
became moot when the magisterial district judge bound over the case for
trial. See Commonwealth v. Abdul-Salaam, 678 A.2d 342, 348-49 (Pa.
2011) (holding that any defect in an affidavit supporting an arrest warrant
was moot after district judge bound over case for trial). In addition,
Appellant’s conviction at trial rendered moot any errors committed at the
preliminary hearing. See Commonwealth v. Lee, 662 A.2d 645, 650 (Pa.
1995) (holding adjudication of guilt rendered moot any allegation that the
Commonwealth failed to establish a prima facie case at the preliminary
hearing). Appellant’s citation of Pa.R.Crim.P. 513(B) (establishing
requirements for issuance of arrest warrant) is inapposite. Appellant was
arrested without a warrant.
We turn next to Appellant’s second issue. Appellant challenges only
the legal conclusion that the search was proper. Specifically, he argues the
trial court erred in denying his motion to suppress because police failed to
obtain an anticipatory search warrant.
Because Appellant raises only a legal question, our standard of review
is de novo, and our scope of review encompasses the whole record.3 See,
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3
Our Supreme Court has held that the appellate scope of review of a
suppression motion is limited to the evidence produced at the suppression
hearing—and not the record as a whole. In the Interest of L.J., 79 A.3d
(Footnote Continued Next Page)
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e.g., Commonwealth v. Gatlos, 76 A.3d 44, 50 (Pa. Super. 2013). (“We
may only reverse the suppression court if the legal conclusions drawn from
the findings are in error.”).
Appellant notes our Supreme Court’s approval of anticipatory search
warrants. See Commonwealth v. Glass, 754 A.2d 655, 665 (Pa. 2000)
(holding that Article I, § 8 of the Pennsylvania Constitution does not
categorically prohibit anticipatory search warrants); Pa.R.Crim.P. 205(4)(b)
(providing for anticipatory search warrants). Rule 205(4) mandates a search
warrant to “direct that the search be executed either; (a) within a specified
period of time, not to exceed 2 days from the time of issuance, or; (b) when
the warrant is issued for a prospective event, only after the specified event
has occurred[.]” Pa.R.Crim.P. 205(4).
Paragraph (4)(b) provides for anticipatory search warrants.
These types of warrants are defined in [Glass], as “a warrant
based upon an affidavit showing probable cause that at some
future time (but not presently) certain evidence of crime will be
located at a specified place.”
_______________________
(Footnote Continued)
1079 (Pa. 2013). L.J. does not apply here. The ruling is prospective, id. at
1089-90, and post-dates the suppression hearing in this case.
In denying Appellant’s motion, the trial court did not make factual findings
and legal conclusions, and its Pa.R.A.P. 1925(a) opinion filed September 27,
2013, merely concluded that it properly denied the suppression motion. See
Pa.R.Crim.P. 581(I). Nevertheless, we will address the issue without such
findings, because Appellant raises only an issue of law. Cf.
Commonwealth v. Landis, 89 A.3d 694, 703-04 (Pa. Super. 2014)
(vacating the denial of suppression and remanding for entry of the required
Rule 581(I) findings where trial court applied wrong legal standard).
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Pa.R.Crim.P. 205 Comment. Appellant does not address the obvious non
sequitur of his argument. Anticipatory search warrants are merely
permitted—not absolutely required. See Commonwealth v. Johnson, 849
A.2d 1236, 1236-37 (Pa. Super. 2004) (concluding that whether police
obtained or could have obtained an anticipatory search warrant was
irrelevant where they possessed valid grounds to search and an exception to
the warrant requirement (an investigatory detention)). Appellant does not
otherwise contest the validity of his arrest, the grounds supporting the drug
dog sniff of the vehicle, or the validity of the search warrant police obtained
before searching the trunk of the car.4
Appellant next argues the trial court abused its discretion by
permitting testimony regarding Appellant’s prior drug dealing that did not
pertain to the instant case.
We review a trial court’s evidentiary rulings for an abuse of discretion.
Commonwealth v. William, 91 A.3d 240, 242 (Pa. Super. 2014) (en
banc). “An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Id. (quotation
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4
Appellant incorrectly claims police bypassed the “usual requirements of a
warrant in order to use the more relaxed ‘automobile search’ rules.”
Appellant’s Brief at 11. Police obtained a warrant after before searching the
interior of the car. See N.T. Suppression, 4/29/13, at 32-33.
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omitted). A trial “court may exclude relevant evidence if its probative value
is outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403. “‘Unfair prejudice’
means a tendency to suggest decision on an improper basis or to divert the
jury’s attention away from its duty of weighing the evidence impartially.”
Pa.R.E. 403 Comment.
The trial court ruled the evidence admissible under Pa.R.E. 404(b) as
evidence of Appellant’s ongoing course of conduct. The trial court further
ruled that the evidence was part of the Commonwealth’s theory of the
case—that Appellant was the head of a drug distribution ring.
Appellant does not state how he believes the trial court abused its
discretion, and does not say how the evidence was unfairly prejudicial.
Instead, he quibbles with the evidence, claiming that he was, in fact, not the
head of a drug distribution ring. Because he has not explained how the trial
court abused its discretion, he is not entitled to relief on appeal for this
issue.
In his final argument, Appellant contends the Commonwealth
committed a Brady violation by failing to turn over exculpatory evidence.
This issue is waived.
It is axiomatic that an appellant cannot raise an issue for the first time
on appeal. Pa.R.A.P. 302(a). Generally, raising an issue for the first time in
a concise statement of errors complained of on appeal does not preserve the
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issue. Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1287
(Pa. Super. 2004) (en banc); see also Diamond Reo Truck Co. v. Mid-
Pac. Indus., Inc., 806 A.2d 423, 430 (Pa. Super. 2002) (“Even though a
1925(b) statement raises issues before the trial court first, an issue must
have been otherwise preserved for the trial court to consider that issue.”).
Here, Appellant raised his Brady claim for the first time in his concise
statement. He has not stated where he preserved the issue by a motion for
a new trial or otherwise—because he did not. His failure to preserve his
Brady claim precludes appellate review.
Having rejected Appellant’s assignments of error, we turn to the trial
court’s application of the mandatory minimum sentence. Appellant was
sentenced to a mandatory minimum of three years in prison under 18
Pa.C.S.A. § 7508(a)(7)(ii), because he was convicted of PWID heroin
weighing at least 5.0 grams but less than 50 grams, and he had no prior
drug trafficking convictions.
On three occasions, we have held that § 7508 is unconstitutional. See
Commonwealth v. Vargas, --- A.3d ---, 2014 PA Super 289, 2014 WL
7447678, at *17, 2014 Pa. Super. LEXIS 4982, at *46-47 (filed Dec. 31,
2014) (en banc); Commonwealth v. Cardwell, 105 A.3d 748, 753-54 (Pa.
Super. 2014); Fennell, 105 A.3d at 120. In fact, Fennell involved the
exact subsection of § 7508 at issue here. The Vargas/Cardwell/Fennell
trio follows prior decisions of this Court that, in turn, apply the Supreme
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Court of the United States’ decision in Alleyne v. United States, 133 S. Ct.
2151 (2013).
In Alleyne, the High Court held that any fact other than a prior
conviction that triggers a mandatory minimum sentence must be found by a
jury beyond a reasonable doubt. Id. at 155. Many of Pennsylvania’s
sentencing statutes, like § 7508(b), require that facts triggering the
mandatory minimum sentence be found by a judge by a preponderance of
the evidence. This procedural mechanism now has been deemed
unconstitutional. In a series of cases, we have held that the statutes’
procedural mechanisms cannot be severed from their substantive provisions,
which voids the statutes in toto.5 The mandatory sentences can be applied
in no circumstances, i.e., even where a defendant stipulates, or the jury
finds, the fact triggering the mandatory sentence. Fennell, 105 A.3d at
120; Valentine, 101 A.3d at 811-12.
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5
See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en
banc) (declaring unconstitutional sentencing statute that applied to drug
trafficking crimes committed with firearms); Commonwealth v. Wolfe, ---
A.3d ---, 2014 PA Super 288, 2014 WL 7331915, 2014 Pa. Super. LEXIS
4977 (filed Dec. 24, 2014) (declaring unconstitutional sentencing statute
that applied to certain crimes committed against children); Commonwealth
v. Bizzel, --- A.3d ---, 2014 PA Super 267, 2014 WL 6756277, 2014 Pa.
Super. LEXIS 4540 (filed Dec. 2, 2014) (declaring unconstitutional drug-free
school zones sentencing statute); Commonwealth v. Valentine, 101 A.3d
801 (Pa. Super. 2014) (declaring unconstitutional sentencing statute that
applied to crimes of violence committed with guns and on public
transportation).
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Appellant is entitled to the holdings in Vargas, Cardwell, and
Fennell, because appellate courts generally apply the law in effect at the
time of the appellate decision. Commonwealth v. Housman, 986 A.2d
822, 840 (Pa. 2009). Finally, even though Appellant has not raised this
issue, Alleyne issues implicate the legality of a sentence. Valentine, 101
A.3d at 809. Therefore, Appellant cannot waive the issue, and we may raise
it sua sponte. Vargas, 2014 WL at 2014 WL 7447678, at *16, 17 n.13,
2014 Pa. Super. LEXIS 4982, at *43, 46 n.13. We vacate Appellant’s
sentence and remand for resentencing without application of § 7508.
In sum, we find Appellant’s assignments of error meritless, but hold
sua sponte that Appellant’s sentence is illegal. Therefore, we vacate and
remand for resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2015
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