J. A18026/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SAMUEL D. MITCHELL, : No. 1751 MDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, August 21, 2014,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0006021-2012
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 06, 2016
Samuel D. Mitchell appeals from the August 21, 2014 judgment of
sentence entered in the Court of Common Pleas of Dauphin County after a
jury convicted him of possession with intent to deliver a controlled substance
(“PWID”),1 conspiracy -- PWID,2 unlawful possession of drug paraphernalia,3
and unlawful possession of a small amount of marijuana.4 The trial court
sentenced appellant to an aggregate term of incarceration of 60 to
* Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S.A. § 903(c).
3
35 P.S. § 780-113(a)(32).
4
35 P.S. § 780-113(a)(31)(i).
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120 months with all charges running concurrently. This term of
incarceration included a mandatory minimum of 5 years pursuant to
42 Pa.C.S.A. § 9712.1 relating to sentences for certain drug offenses
committed with a firearm. We vacate appellant’s judgment of sentence and
remand for resentencing.
At the outset, we note that the underlying facts giving rise to
appellant’s convictions are not germane to this appeal. With respect to the
procedural history, the record reflects that appellant failed to file a
post-sentence motion pursuant to Pa.R.Crim.P. 720. The record further
reflects that on September 4, 2014, appellant filed a motion for
extraordinary relief from imposition of mandatory minimum sentence.
(No. 1599 MDA 2014, Docket #45.) Although appellant was represented by
counsel at this time, this motion appears to be a pro se filing. As noted by
the trial court:
The post-trial procedural history in this matter
is somewhat confusing due to [appellant’s] various
pro se filings despite being represented by counsel,
including one on which he improperly attempted to
represent as being filed by his counsel of record.
Similarly confusing is the pro se [Pa.R.A.P.] 1925(b)
statement submitted to the Court. The statement of
matters complained of on appeal is far from concise
as it is a four (4) page single paragraph that appears
to raise ineffective assistance of counsel claims that
are more appropriately addressed in a Petition under
the Post-Conviction Relief Act, alleges errors related
to this Court’s disposition of his pre-trial suppression
motion, appears to raise a possible challenge to the
sufficiency of the evidence underlying the conviction
for conspiracy to commit [PWID], raises a challenge
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to the mandatory minimum sentence imposed
pursuant to 42 Pa.C.S.[A.] § 9712.1, and finally,
makes a completely incorrect claim that a hearing on
his suppression motion never occurred prior to trial.
Trial court opinion, 12/22/14 at 2-3 (footnote omitted).
The trial court further incorrectly noted that it ordered appellant to file
his Pa.R.A.P. 1925(b) statement by September 22, 2014. (Id. at 3.) The
trial court then incorrectly concluded that because appellant filed his
Rule 1925(b) statement on October 7, 2014, it was untimely. (Id.)
Our review of the record reveals that the trial court entered an order
on September 22, 2014, that required appellant to file his Rule 1925(b)
statement within 21 days of entry of the September 22, 2014 order.
(No. 1599 MDA 2014, Docket #49.) The record further reflects that
appellant filed his Rule 1925(b) statement on October 6, 2014, which was
well within the 21-day period.5 (No. 1599 MDA 2014, Docket #51.)
Therefore, appellant filed a timely Rule 1925(b) statement.
The record further reflects that on January 12, 2015, this court
dismissed appellant’s direct appeal at No. 1599 MDA 2014 for appellant’s
failure to file a brief. (Order of court, 1/12/15.) On March 17, 2015,
appellant then filed a timely petition under the Post-Conviction Relief Act,
42 Pa.C.S.A. §§ 9541-9546. Subsequently, on September 11, 2015,
5
We note that the docket indicates that appellant’s Pa.R.A.P. 1925(b)
statement was filed on October 7, 2014, but the statement is time stamped
as being filed on October 6, 2014. (No. 1599 MDA 2014, Docket #51.)
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appellant’s direct appeal rights were reinstated. (No. 1751 MDA 2015,
Docket #14.) On October 13, 2015, appellant’s notice of appeal to this court
was docketed. Appellant is represented by counsel in this appeal.
Appellant raises the following issues for our review:
A. WHETHER THE TRIAL COURT COMMITTED AN
ERROR OF LAW WHEN IT PERMITTED THE
COMMONWEALTH’S EXPERT WITNESS TO
TESTIFY IN A MANNER THAT WAS UNDULY
PREJUDICIAL IN THAT IT INVITED THE JURY
TO ACCEPT HIS OPINION REGARDING AN
ULTIMATE ISSUE OF FACT RATHER THAN
INDEPENDENTLY ASCERTAIN AND ASSESS
THE FACTS[?]
B. WHETHER THE TRIAL COURT COMMITTED AN
ERROR OF LAW WHEN IT SENTENCED THE
APPELLANT TO A MANDATORY SENTENCE IN
RELIANCE ON STATUTORY SENTENCING
GUIDELINES [THAT] ARE
UNCONSTITUTIONAL[?]
Appellant’s brief at 4.
Appellant first complains that the trial court erred by permitting the
Commonwealth’s expert on street-level drug trafficking to testify at trial that
appellant possessed marijuana with intent to distribute under the guise of a
hypothetical question during direct examination. (Appellant’s brief at
10-12.) Appellant concedes that “[a]lthough trial counsel could and should
have objected to this aspect of the testimony,” he nevertheless claims that
“the trial court had an obligation to address this prejudicial testimony
immediately.” (Appellant’s brief at 12.) It is well settled that a “[f]ailure to
raise a contemporaneous objection to the evidence at trial waives that claim
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on appeal.” Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa.Super.
2013) (citations omitted); see also Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.”). Therefore, appellant waives this issue on appeal.
Appellant next contends that Alleyne v. United States, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013), and its progeny, render the mandatory
sentence imposed upon him under 42 Pa.C.S.A. § 9712.1 illegal. See
Alleyne, 133 S.Ct. at 2163 (holding that “facts that increase mandatory
minimum sentences must be submitted to the jury” and must be found
beyond a reasonable doubt). We agree.
This claim implicates the legality of appellant’s sentence and,
therefore, cannot be waived. See Commonwealth v. Newman, 99 A.3d
86, 90 (Pa.Super. 2014) (en banc) (finding that “a challenge to a sentence
premised upon Alleyne [] implicates the legality of the sentence and cannot
be waived on appeal.”).6 We note that the trial court acknowledges that
appellant’s sentence is illegal. (Trial court opinion, 12/22/14 at 3-6.)
Additionally, the Commonwealth does not contest this issue.
(Commonwealth’s brief at 18-19.)
6
We note that our supreme court granted allocatur to determine whether a
challenge to a sentence pursuant to Alleyne, supra, implicates the legality
of the sentence and is, therefore, non-waivable. Commonwealth v.
Barnes, 122 A.3d 1034 (Pa. 2015) (per curiam). As our high court has yet
to decide this issue, Newman, supra, controls.
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Alleyne rendered 42 Pa.C.S.A. § 9712.1 constitutionally infirm in its
entirety because the statute allows the sentencing court to determine, by
only a preponderance of the evidence, the application of a mandatory
minimum. See Newman, 99 A.3d at 98; see also Commonwealth v.
Watley, 81 A.3d 108, 112 n.2 (Pa.Super. 2013) (en banc);
Commonwealth v. Munday, 78 A.3d 661, 666 (Pa.Super. 2013).
Therefore, because the trial court imposed appellant’s sentence under
Section 9712.1, it is unconstitutional in its entirety and, therefore, illegal and
must be vacated. Because this unconstitutional infirmity upsets the trial
court’s overall sentencing scheme, we vacate appellant’s judgment of
sentence in its entirety and remand for resentencing, without consideration
of 42 Pa.C.S.A. § 9712.1. See Commonwealth v. Ferguson, 107 A.3d
206, 213-214, 216 (Pa.Super. 2015) (vacating entire sentence pursuant to
Alleyne and remanding for resentencing on all counts, where the sentence
encompassed both counts subject to mandatory minimum sentencing
provisions and counts not subject to mandatory minimum sentencing
provisions).
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2016
-7-
Com. v. Mitchell, S.
Combined Opinion