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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUDITH SANTIAGO
Appellant No. 2460 EDA 2014
Appeal from the Judgment of Sentence March 26, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003129-2013
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED APRIL 18, 2016
Judith Santiago appeals from the judgment of sentence imposed on
March 26, 2014, in the Philadelphia County Court of Common Pleas.
Santiago was sentenced to a mandatory minimum term of five to 10 years’
imprisonment1 following her non-jury conviction of one count each of
possession of controlled substances (cocaine), and possession with intent to
deliver (“PWID”) controlled substances (28.96 grams of cocaine). 2 On
appeal, Santiago challenges the legality of her sentence, as well as the
weight and sufficiency of the evidence supporting her convictions. For the
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1
See 18 Pa.C.S. § 7508(a)(3)(ii) (mandatory minimum five years’
imprisonment for possession with intent to deliver 10 to 100 grams of
cocaine and a prior drug trafficking offense).
2
35 P.S. §§ 780-113(a)(16) and (a)(30), respectively.
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reasons below, we vacate the judgment of sentence and remand for
resentencing.
The facts underlying Santiago’s arrest and conviction are summarized
by the trial court as follows:
On August 25, 2012, Philadelphia Police officers set up
surveillance on the corner of Ella and East Cambria streets. The
police hid inside of an unmarked police car and observed several
men and women approach Janella Baines, Jorge Santiago,[3] and
an unidentified male. Baines instructed those who approached
to wait by a vacant lot because she believed the cops were
watching. Baines then left the lot and approached [Santiago],
who was sitting in a lawn chair in front of 234 East Cambria
[Street].
[Santiago] and Baines subsequently entered 234 East
Cambria. Shortly thereafter, the police saw [Jorge] enter 234
East Cambria. [Santiago], Baines and [Jorge] exited several
minutes later. [Santiago] returned to her lawn chair while
Baines spoke briefly with the unidentified male. A woman later
approached the unidentified male and handed him money in
exchange for small objects while Baines simultaneously gave
small objects to another woman in return for money. Several
minutes later, another man approached and gave the
unidentified male money in exchange for small objects. The
unidentified male then entered 234 East Cambria, exited several
seconds later, and gave the other man more small objects.
Based on these observations, the police tried to arrest the
unidentified male but were unable to do so. Nor were the police
able to arrest the buyers who interacted with the unidentified
male. The police were able to arrest [Jorge], but they recovered
no drugs from him. The police also arrested Baines and the
woman with whom she exchanged. A packet of heroin was
retrieved from this woman. Although the police did not recover
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3
The record does not reveal if Jorge Santiago is related to the defendant.
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any drugs from Baines, they did recover $360 dollars from her
sweatpants.
After the police arrested Baines, they approached
[Santiago]. As the police approached, [Santiago] ran up the
front steps to 234 East Cambria and tried to lock the door.
However, the police were able to arrest her before she locked
the door. The police confiscated $533 from her purse.
When the police later executed a warrant on 234 East
Cambria, they found 150 vials of crack cocaine on the dining
room table. In addition, the police recovered 98 packets of
cocaine from a Cheetos’s container located behind the living
room couch. Although a chemist did not weigh the total weight
of the vials, he estimated that one vial weighed 32 milligrams. A
narcotics field officer also calculated the total weight of the vials
by multiplying the weight of one vial by 150 (the total number of
vials) approximating 4800 milligrams (4.8 grams). He opined
that [the] 98 packets of cocaine weighed 24.16 grams.
According to the narcotics officer, the vials and packets together
weighed approximately 28.96 grams. The police also found mail
inside of 234 East Cambria addressed to [Santiago]. No mail
was found in anyone else’s name.
Trial Court Opinion, 2/25/2015, at 2-3 (record citations, footnote and
emphasis omitted).
Santiago proceeded to a non-jury trial, and on December 20, 2013,
the court found her guilty of the aforementioned charges. Santiago was
sentenced on March 26, 2014, to a mandatory minimum term of five to 10
years’ imprisonment. She filed a timely post-sentence motion challenging
both the imposition of the mandatory minimum sentence under Alleyne v.
United States, 133 S.Ct. 2151 (U.S. 2013), and the weight of the evidence.
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After conducting a hearing on May 28, 2014, and August 27, 2014, the court
denied the motion. This timely appeal followed.4
Preliminarily, we note Santiago’s challenges to both the weight and
sufficiency of the evidence are waived because she failed to raise either
claim in her court-ordered concise statement.5 See Pa.R.A.P.
1925(b)(4)(vii). “It is well established that an appellant’s failure to include
claims in the court-ordered 1925(b) statement will result in a waiver of that
issue on appeal.” Commonwealth v. Carpenter, 955 A.2d 411, 415 (Pa.
Super. 2008). Accord Commonwealth v. Riggle, 119 A.3d 1058, 1070
(Pa. Super. 2015). Accordingly, Santiago’s challenges to the weight and
sufficiency of the evidence are waived on appeal.
Consequently, the sole issue preserved for our review is a challenge to
the legality of her sentence. Santiago argues the imposition of the
mandatory minimum sentence herein, based upon the weight of the drugs
recovered from her home, is unconstitutional under Alleyne and its
progeny. See Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super.
2014) (en banc) (“[A] challenge to a sentence premised upon Alleyne …
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4
On September 18, 2014, the trial court ordered Santiago to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Santiago complied with the court’s directive, and filed a concise statement
on October 9, 2014.
5
The sole issue set forth in Santiago’s concise statement challenges her
mandatory minimum sentence. See Preliminary Concise Statement of
Matters Complained of on Appeal, 10/9/2014.
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implicates the legality of the sentence and cannot be waived on appeal.”),
appeal denied, 121 A.3d 496 (Pa. 2015). For the reasons that follow, we
agree.
Preliminarily, however, we must address the Commonwealth’s
assertion that this claim is also waived. The Commonwealth contends, first,
Santiago failed to present a coherent argument in her brief on appeal.
Indeed, Santiago asserts she was sentenced under the mandatory minimum
at “18 Pa.C.S. § 9712.” See Santiago’s Brief at 12. We assume Santiago
meant to reference 42 Pa.C.S. § 9712, which provides for a mandatory
minimum sentence when a defendant commits a crime while in possession of
a firearm.6 However, as the Commonwealth points out, “no handguns were
involved” in this case, so Santiago’s citation, in any event, is incorrect.
Commonwealth’s Brief at 12. Moreover, the Commonwealth emphasizes
Santiago neglected to include a transcript of the sentencing hearing in the
certified record, stating, “[a]ccording to the docket entries, the notes were
never ordered.” Id. Consequently, it asserts “[w]ithout the record, this
claim cannot be addressed by the Commonwealth and is unreviewable by
this Court.” Id.
Ordinarily, we would agree with the Commonwealth. An appellant
must present this Court with issues that are fully developed and supported
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6
Indeed, there is no statute codified at 18 Pa.C.S. § 9712.
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by relevant citations, or risk waiver. See Commonwealth v. Einhorn, 911
A.2d 960, 970 (Pa. Super. 2006) (“This Court will not become the counsel
for an appellant, ‘and will not, therefore, consider issues ... which are not
fully developed in [the] brief.’”) (citation omitted), appeal denied, 920 A.2d
831 (Pa. 2007). Moreover, it is the duty of the appellant to request all
necessary transcripts, and ensure they are included in the certified record.
See Pa.R.A.P. 1911(a).
However, here, Santiago’s claim implicates the legality of her
sentence. As noted above, an en banc panel of this Court in Newman,
specifically held “a challenge to a sentence premised upon Alleyne …
implicates the legality of the sentence and cannot be waived on appeal.”
Newman, supra, 99 A.3d at 90.7 Therefore, even if Santiago had not
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7
We note the Pennsylvania Supreme Court, by accepting review of two of
this Court’s prior decisions, appears poised to address whether an Alleyne
claim constitutes a non-waivable challenge to the legality of a sentence.
See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super), appeal granted,
121 A.3d 433 (Pa. 2015) (granting appeal to consider whether the Superior
Court erred as a matter of law when it determined, sua sponte, that
defendant’s mandatory minimum sentence was unconstitutional under
Alleyne); Commonwealth v. Barnes, 105 A.3d 47 (Pa. Super. 2014)
(unpublished memorandum), appeal granted, 122 A.3d 1034 (Pa. 2015)
(granting appeal to consider, inter alia, whether an Alleyne claim raises a
challenge to the legality of sentencing). At this time, however, the holding
of our en banc panel is binding precedent.
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presented the issue on appeal, we could raise the claim sua sponte. For that
reason, her deficient brief does not compel us to waive this claim.8
Furthermore, contrary to the Commonwealth’s assertion, Santiago did
order the transcript of the sentencing hearing when she filed her notice of
appeal. See Transcript Order Form, 8/28/2014 (requesting transcription of
sentencing hearing held on 3/26/2014). Upon our inquiry regarding the
status of the missing notes of testimony, this Court was informed that the
court reporter, who was assigned to the hearing, is no longer employed by
the First Judicial District of Pennsylvania and “the notes containing the
information pertaining to [this] case have not been located.” Letter from
Brenda Howlett, Administrative Technician, First Judicial District of
Pennsylvania, dated 3/16/2016. Therefore, we will not fault Santiago for
this clear breakdown in the trial court’s processes.
In any event, the trial court explicitly stated in its opinion that
Santiago “was sentenced to a mandatory minimum sentence under 18
Pa.C.S. § 7508-Drug Trafficking Sentencing and Penalties.” Trial Court
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8
While Santiago certainly cited the wrong mandatory minimum statute in
her brief, she referenced the correct statute, 18 Pa.C.S. § 7508, in her post-
sentence motion. See Post Sentence Motion, 4/7/2014, at ¶ 2. Moreover,
she presents a coherent, and proper, argument that many, if not all, of
Pennsylvania’s mandatory minimum statutes are unconstitutional under
Alleyne. See Santiago’s Brief at 10-13. Therefore, a simple scrivener’s
error does not impede our review.
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Opinion, 2/25/2015, at 1 n.1.9 Further, the court’s statement is supported
by the Commonwealth’s own assertion in the criminal information, that, with
respect to the PWID charge, “the Commonwealth will proceed under 18
Pa.C.S. 7508 (relating to mandatory sentencing and penalties for drug
trafficking).” Criminal Information, 3/18/2013, at Count 1. Accordingly, the
Commonwealth’s present feigned inability to address this claim is specious at
best.10 Accordingly, we proceed to a review of Santiago’s Alleyne claim.
In Alleyne, the United States Supreme Court held “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne,
133 S.Ct. at 2155 (emphasis supplied). Applying that mandate, this Court,
sitting en banc in Newman, concluded that Alleyne rendered the
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9
We note the Commonwealth argues this Court may not rely on the trial
court’s statements in its opinion because the trial court’s opinion is “not part
of the record.” Commonwealth’s Brief at 13 n.2. This assertion is
misleading. “While a trial court opinion is not part of the evidentiary record
and cannot be used to add to or contradict evidence in the case, it is part of
the certified record under Pa.R.A.P. 1921, and we may consider it in
conducting our review.” Commonwealth v. Stewart, 84 A.3d 701, 710
(Pa. Super. 2013) (emphasis in original), appeal denied, 93 A.3d 463 (Pa.
2014).
10
We also point out the trial court acknowledged the Alleyne issue during
the post-sentence hearing, and stated it had determined that all of the
cocaine found in the house was attributed to Santiago so “that the
mandatory that [it] applied was appropriate as it related to the possession
with intent to deliver.” N.T., 8/27/2014, at 5-6. The Commonwealth did not
dispute that Santiago had received a mandatory minimum sentence, nor did
it question the propriety of imposing it based on Alleyne. See id. at 6-7.
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mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1
unconstitutional because Subsection (c) of that statute permitted the trial
court to determine at sentencing whether the elements necessary to
increase the mandatory minimum sentence, i.e., the defendant possessed or
was in close proximity to a firearm while selling drugs, were proven by a
preponderance of the evidence. See 42 Pa.C.S. § 9712.1(c). Under the
reasoning of Alleyne, the Newman Court explicitly held: “Section 9712.1
can no longer pass constitutional muster.” Newman, supra, 99 A.3d at 98.
Significantly, the Court also found the offensive subsection of the statute
was not severable, thereby invalidating the sentencing statute as a whole.
Id. at 101.
Since that decision, this Court has held that mandatory minimum
statutes which include the same “proof at sentencing” provisions, permitting
the trial court to find determinative factors under a preponderance of the
evidence standard at sentencing, are unconstitutional. See
Commonwealth v. Bizzel, 107 A.3d 102 (Pa. Super. 2014) (applying
Newman to 18 Pa.C.S. § 6317), appeal denied, 126 A.3d 1281 (Pa. 2015);
Wolfe, supra, (invalidating 42 Pa.C.S. § 9718); Commonwealth v.
Valentine, 101 A.3d 801 (Pa. Super 2014) (applying Newman to 42
Pa.C.S. §§ 9712 and 9713), appeal denied, 124 A.3d 309 (Pa. 2015).
Relevant to this appeal, an en banc panel in Commonwealth v. Vargas,
108 A.3d 858, 876-877 (Pa. Super. 2014) (en banc), appeal denied, 121
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A.3d 496 (Pa. 2015), held that the offensive subsection in 18 Pa.C.S. §
7508, the mandatory minimum statute applied sub judice, rendered that
statute unconstitutional as well.
Here, while recognizing the problem presented by the mandatory
minimum sentence it applied, the trial court, nevertheless, contends the
sentence it imposed did not contravene the holding in Alleyne because the
court, sitting as fact-finder, “unequivocally found beyond a reasonable
doubt” that Santiago possessed all 28.96 grams of cocaine triggering the
application of the statute. Trial Court Opinion, 2/25/2015, at 6. However,
this Court has declined to carve out an exception to Alleyne when a
defendant is convicted in a non-jury trial. See Bizzel, supra, 107 A.3d at
104 n.2 (vacating mandatory minimum sentence imposed pursuant to 18
Pa.C.S. § 6317(b) following non-jury trial as violative of Alleyne, finding
“[t]he mandate that facts that increase a mandatory minimum are elements
of the crime and are required to be proven beyond a reasonable doubt
applies in both bench trials and jury trials.”).
Indeed, in Newman, the en banc panel held the mandatory minimum
statute, as a whole, was constitutionally invalid because the offensive
subsection could not be severed from the remaining subsections. Newman,
supra, 99 A.3d at 101. The Newman Court also concluded, “it is
manifestly the province of the General Assembly to determine what new
procedures must be created in order to impose mandatory minimum
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sentences in Pennsylvania following Alleyne. We cannot do so.” Id. at 102.
To that end, this Court has rejected any attempt to circumvent the
unconstitutionality of the statute by any means short of legislative
amendment. See Valentine, supra, 101 A.3d at 811 (rejecting trial court’s
attempt to cure Alleyne deficiency by asking the jury to determine
sentencing factors; “we conclude … that the trial court performed an
impermissible legislative function by creating a new procedure in an effort to
impose the mandatory minimum sentences in compliance with Alleyne.”).
Therefore, the fact that Santiago’s mandatory minimum sentence was
imposed following a bench trial is of no consequence.
Accordingly, although we conclude Santiago waived her challenges to
the weight and sufficiency of the evidence, we agree the mandatory
minimum sentence imposed pursuant to 18 Pa.C.S. § 7508 is illegal.
Consequently, we vacate the judgment of sentence, and remand for
resentencing without consideration of Section 7508.
Judgment of sentence vacated. Case remanded for resentencing
consistent with this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2016
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