J-S78006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KRISTEN L. MARTIN

                            Appellant                 No. 1048 MDA 2014


             Appeal from the Judgment of Sentence April 14, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002144-2012


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED FEBRUARY 02, 2015

        Appellant, Kristen L. Martin, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas, following her bench

trial convictions for possession of a controlled substance and possession of a

controlled substance with intent to deliver (“PWID”).1          We affirm the

convictions, vacate the judgment of sentence, and remand for resentencing.

        The suppression court’s findings of fact set forth the relevant facts of

this appeal as follows:

           1.       Officer Jeffrey Ference, Wilkes-Barre Police
           Department; Sgt. Robert Orzechowski, Hanover Township
           Police Department; and Officer Mark Stefanowicz, Hanover
           Township Police Department, testified on behalf of the
           Commonwealth.
____________________________________________


1
    35 P.S. § 780-113(a)(16), (30).
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       2.       Officer Ference was assigned to investigate a
       motor vehicle accident which occurred on June 6, 2012 in
       the City of Wilkes-Barre.

       3.     The subject vehicle was registered to a rental car
       company.

       4.       The driver’s license of [Appellant] was located
       inside the vehicle.

       5.       Officer Ference attempted to contact [Appellant]
       the next day, June 7, 2012, by telephone.

       6.       On June 7, 2012, Officer Ference proceeded to
       [Appellant’s] residence located [in Hanover Township].

       7.       Upon arrival, Officer Ference spoke with
       [Appellant] and was invited and allowed inside the
       residence. Her boyfriend, Eric Conahan, was also in the
       residence.

       8.       Following a check of the driver’s license database,
       Officer Ference learned that Mr. Conahan was a wanted
       person.

       9.      Mr. Conahan was placed into custody, handcuffed,
       and seated on a chair in the residence.

       10.     At that time, Mr. Conahan was dressed only in
       boxer shorts.

       11.      Mr. Conahan wanted additional clothes and
       [Appellant] wanted to retrieve some additional clothing for
       Mr. Conahan and asked Officer Ference for permission to
       go into the bedroom for clothes.

       12.      Officer  Ference     agreed     to   accommodate
       [Appellant’s] request and accompanied her into the
       bedroom, the inside of which was not visible to Officer
       Ference from his present location inside the residence.

       13.      Once in the bedroom, Officer Ference observed
       [Appellant] grab an item off…the top of a dresser and
       attempt to put the same in a dresser drawer.

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          14.      On the dresser, Officer Ference observed what
          was believed to be marijuana grinders,[2] which he is
          familiar with due to prior arrests and investigations.

          15.     Officer Ference also observed items wrapped in
          newspaper, which were consistent with the packaging of
          heroin.

          16.     The       items     were     immediately   apparent     as
          contraband.

          17.      The suspected contraband was left until
          assistance from the Hanover Township Police Department
          arrived.

          18.      No dresser drawers were opened by Officer
          Ference, and no search of the bedroom was performed.

          19.       Officer Ference stated that he accompanied
          [Appellant] into the bedroom for his own safety, as the
          interior of the room was not visible from the area where he
          initially made contact with [Appellant] and Mr. Conahan,
          and Mr. Conahan was now known to be a wanted person.

          20.      Sgt. Robert Orzechowski, Hanover Township
          Police Department, responded to the subject residence at
          the request of the Wilkes-Barre Police Department.

          21.       Officer Ference relayed information about his
          interaction with [Appellant] and Mr. Conahan to Sgt.
          Orzechowski.

          22.     Officer Ference showed Sgt. Orzechowski the
          bedroom area where the suspected contraband was
          observed.

          23.     The area was secured, and                  Officer    Mark
          Stefanowicz was contacted for assistance.
____________________________________________


2
  At the suppression hearing, Officer Ference testified that a marijuana
grinder is a device used to prepare marijuana for smoking.          (N.T.
Suppression Hearing, 4/26/13, at 9).



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        24.      [Appellant] was provided with her constitutional
        rights pursuant to Miranda v. Arizona, 384 U.S. 436
        (1966).

        25.     [Appellant] signed a rights waiver form in the
        presence of Sgt. Orzechowski and Officer Stefanowicz.

        26.      [Appellant] appeared calm and was cooperative.

        27.      [Appellant] signed a permission to search form in
        the presence of the police officers.

        28.      [Appellant] directed the police officers [on] where
        to search for contraband.

        29.     The bedroom area was searched, and heroin and
        related drug paraphernalia were located in the dresser
        drawer.

        30.     No promises were made to [Appellant]              in
        exchange for her cooperation and consent to search.

        31.     Officer Stefanowicz spoke with [Appellant], and
        she advised that there was money in the bathroom
        medicine cabinet inside a “cold medicine” box.

        32.      $1,043.00 was found in the box.

        33.       All contraband was seized. The suspected drugs
        field-tested positive for heroin.

        34.     [Appellant] was transported to the Hanover
        Township Police station where she provided a handwritten
        statement.

        35.      [Appellant] admitted to selling heroin and further
        advised that she buys it from “Wendal” from East Orange,
        New Jersey, who meets [Appellant] in Wilkes-Barre for the
        sale/purchase.

        36.      [Appellant] stated that she does not use heroin,
        and all heroin found in the residence belonged to her.

(Findings of Fact and Conclusions of Law, entered June 7, 2013, at 1-4).

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       The Commonwealth charged Appellant with possession of a controlled

substance and PWID. On December 31, 2012, Appellant filed a motion to

suppress all evidence obtained as a result of the search.              The suppression

court conducted a hearing on April 26, 2013.                  At the hearing, defense

counsel summarized Appellant’s argument as follows:

           [Appellant] does not feel that the officer had the right to
           accompany her…to her own bedroom. There is certainly
           an expectation of privacy in one’s home.

                                       *       *   *

           [It] violated the Fourth Amendment for [the officer] to be
           [in the bedroom] and, therefore, the plain view doctrine
           would be violated, because he has to have a lawful right of
           access to be where the plain view occurred.

(N.T. Suppression Hearing at 59-60). On June 7, 2013, the court issued its

findings of fact and conclusions of law.              That same day, the court denied

Appellant’s suppression motion.

       Following a bench trial, the court found Appellant guilty of possession

of a controlled substance and PWID. On April 14, 2014, the court conducted

Appellant’s sentencing hearing.                For the PWID conviction, the court

sentenced Appellant to three (3) to six (6) years’ imprisonment, which

included    a   mandatory      minimum         term    pursuant   to   18   Pa.C.S.A.   §

7508(a)(7)(ii).3      Appellant’s conviction for possession of a controlled

____________________________________________


3
  At the sentencing hearing, the Commonwealth explained the applicability of
the Section 7508 mandatory minimum as follows:
(Footnote Continued Next Page)


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substance merged with the PWID conviction for sentencing purposes.

Appellant did not file post-sentence motions.

      Appellant timely filed a notice of appeal on May 9, 2014. On May 12,

2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).              Appellant

subsequently complied with the court’s order.

      Appellant now raises two issues for our review:

          WHETHER [THE] TRIAL COURT ERRED IN FAILING TO
          SUPPRESS    THE  PHYSICAL  EVIDENCE  FOUND   IN
          [APPELLANT’S] APARTMENT AND SUPPRESS THE VERBAL
          STATEMENTS MADE BY [APPELLANT].

          WHETHER THE TRIAL COURT ERRED IN IMPOSING A
          MANDATORY      MINIMUM SENTENCE        OF THIRTY-SIX
          MONTHS IN LIGHT OF THE UNITED STATES SUPREME
          COURT’S HOLDING IN ALLEYNE V. UNITED STATES,
          [___ U.S. ___, 133 S.CT. 2151, 186 L.ED.2D 314] (2013).

(Appellant’s Brief at 1).

      In her first issue, Appellant contends she did not invite Officer Ference

into her bedroom, and the officer did not possess reasonable suspicion of

criminal activity to justify his entry into the bedroom. To the extent Officer

                       _______________________
(Footnote Continued)


          Also, Your Honor, the weight involved here was testified to
          and supported by expert testimony, and Your Honor found
          it to have been substantiated. That was 7.9 grams of
          heroin, and that is punishable by that three to six
          mandatory minimum.

(N.T. Sentencing Hearing, 4/14/14, at 2).



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Ference cited safety concerns as a basis for entering the bedroom, Appellant

maintains the officer did not observe “any unusual or suspicious conduct on

the part of [Appellant] which would have led him to reasonably believe that

[Appellant was] armed and dangerous or that there [were] weapons inside

the bedroom.” (Appellant’s Brief at 6). Even if Officer Ference possessed a

reasonable belief that weapons were located inside the bedroom, Appellant

claims the officer could have refused her request to retrieve Mr. Conahan’s

clothing.     Under these circumstances, Appellant insists Officer Ference

illegally entered her bedroom; thus, the plain view doctrine could not

support the officer’s seizure of the contraband.     Further, Appellant argues

that her subsequent consent to search the bedroom amounted to “fruit of

the poisonous tree.” Appellant concludes the court erroneously denied her

suppression motion. We disagree.

      We examine this issue subject to the following principles:

            Our standard of review in addressing a challenge to a trial
            court’s denial of a suppression motion is limited to
            determining whether the factual findings are supported by
            the record and whether the legal conclusions drawn from
            those facts are correct.

              [W]e may consider only the evidence of the
              prosecution 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 record
              supports the findings of the suppression court, we
              are bound by those facts and may reverse only if the
              court erred in reaching its legal conclusions based
              upon the facts.

Commonwealth v. Williams, H., 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

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banc) (internal citations and quotation marks omitted).

     “Both the Fourth Amendment to the United States Constitution and

Article I, § 8 of the Pennsylvania Constitution protect the people from

unreasonable searches and seizures.” Commonwealth v. McCree, 592 Pa.

238, 246, 924 A.2d 621, 626 (2007) (internal footnotes omitted).             “A

warrantless search or seizure is presumptively unreasonable under the

Fourth Amendment and Article 1, § 8, subject to a few specifically

established, well-delineated exceptions.” Id. at 247, 924 A.2d at 627. One

exception to the warrant requirement is the “protective sweep,” which allows

for “a quick and limited search of premises, incident to an arrest and

conducted   to   protect   the   safety   of   police   officers   or   others.”

Commonwealth v. Taylor, 565 Pa. 140, 149, 771 A.2d 1261, 1267 (2001),

cert. denied, 534 U.S. 994, 122 S.Ct. 462, 151 L.Ed.2d 380 (2001).

     Likewise, “[t]he plain view doctrine provides that evidence in plain

view of the police can be seized without a warrant….” Commonwealth v.

Anderson, 40 A.3d 1245, 1248 (Pa.Super. 2012), appeal denied, 616 Pa.

666, 51 A.3d 837 (2012) (quoting Commonwealth v. Sodomsky, 939

A.2d 363, 370 (Pa.Super. 2007), cert. denied, 556 U.S. 1282, 129 S.Ct.

2776, 174 L.Ed.2d 272 (2009)).

        This doctrine permits a valid warrantless seizure of an item
        where: (1) the police have not violated the Fourth
        Amendment in arriving at the location from which the item
        could be viewed; (2) the item is in plain view; (3) the
        incriminating character of the item is immediately


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        apparent; and (4) the police have a lawful right of access
        to the item itself.

Commonwealth v. Jones, 605 Pa. 188, 201, 988 A.2d 649, 656 (2010),

cert. denied, ___ U.S. ___, 131 S.Ct. 110, 178 L.Ed.2d 32 (2010).

     A consensual search also provides an exception to the warrant

requirement.   Commonwealth v Caban, 60 A.3d 120 (Pa.Super. 2012),

appeal denied, ___ Pa. ___, 79 A.3d 1097 (2013).

        [T]he central inquiries in consensual search cases entail
        assessment of the constitutional validity of the
        citizen/police encounter giving rise to the consent, and the
        voluntariness of the consent given. To establish a valid
        consensual search, the Commonwealth must first prove
        that the individual consented during a legal police
        interaction. Where the underlying encounter is lawful, the
        voluntariness of the consent becomes the exclusive focus.

                                *    *    *

        [T]he Commonwealth bears the burden of establishing that
        a consent is the product of an essentially free and
        unconstrained choice―not the result of duress or coercion,
        express or implied, or a will overborne―under the totality
        of the circumstances. The inquiry is ultimately objective,
        and employs a reasonable person test presupposing an
        innocent person. The test for the validity of a consent to
        search is the same for both the Fourth Amendment and
        Article I, Section 8, i.e., that the consent is given
        voluntarily.

        In reviewing the totality of the circumstances,
        Pennsylvania courts have considered a variety of factors to
        assess the voluntariness of the consent, including the
        length and location of the detention; whether there were
        any police abuses, physical contact, or use of physical
        restraints; any aggressive behavior or any use of language
        or tone by the officer that were not commensurate with
        the circumstances; whether the questioning was repetitive
        and prolonged; whether the person was advised that he or

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          she was free to leave; and whether the person was
          advised of his or her right to refuse to consent.

Id. at 127, 130-31 (internal citations and quotation marks omitted).

      Instantly, Officer Ference commenced the investigation of a hit-and-

run accident on June 6, 2012.        The occupants of one of the damaged

vehicles abandoned their vehicle at the accident scene.     Officer Ference’s

investigation revealed that the abandoned vehicle was a rental car. Inside

the abandoned vehicle, Officer Ference recovered a rental agreement and

Appellant’s driver’s license.   The rental agreement listed Appellant as the

renter.

      On June 7, 2012, Officer Ference unsuccessfully attempted to contact

Appellant by telephone.    At approximately 9:00 a.m., Officer Ference and

Officer Comney went to the address listed on Appellant’s driver’s license.

When the officers knocked on the door of the residence, Appellant answered.

The officers expressed their desire to talk about the motor vehicle accident,

and Appellant invited them inside the residence.

      Once inside, the officers sat with Appellant in the living room.   The

officers heard noises coming from the other rooms, and Appellant indicated

Mr. Conahan and her two small children were present at the residence.

Appellant called out to Mr. Conahan, who joined Appellant and the officers in

the living room.    The officers conducted a check of Appellant’s and Mr.

Conahan’s identification cards.    At that point, the officers discovered Mr.

Conahan was “a wanted person.” (See N.T. Suppression Hearing at 7.)

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     The officers immediately handcuffed Mr. Conahan and placed him

under arrest. See Commonwealth v. Williams, R., 2 A.3d 611 (Pa.Super.

2010) (en banc), appeal denied, 610 Pa. 585, 19 A.3d 1051 (2011) (holding

probable cause to arrest is made out when facts and circumstances within

knowledge of officer at time of arrest are sufficient to warrant person of

reasonable caution in belief that suspect has committed crime).           Mr.

Conahan, however, was wearing only boxer shorts.          Mr. Conahan asked

Appellant to retrieve his clothing, and Appellant asked the officers for

permission to go into her bedroom. Officer Ference permitted Appellant to

go, but the officer accompanied her.       At the suppression hearing, Officer

Ference elaborated on his decision:

        [COMMONWEALTH]:        And,    Officer Ference,          why
        would…you accompany her into the bedroom?

        [OFFICER]:                Because we feel we were taking
        her boyfriend…into custody, you know, [we were worried
        about] any type of retaliation. Basically, for our safety.
        We don’t want her coming out with any weapons or
        anything like that.

(See N.T. Suppression Hearing at 8.) Here, the suppression court correctly

concluded that Officer Ference justifiably accompanied Appellant inside the

bedroom to ensure the officers’ safety.        See Taylor, supra.   See also

Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973) (holding

police conducted legal, warrantless seizure of blood-stained items in plain

view in defendant’s bedroom; police went to defendant’s rooming house to

serve arrest warrant for defendant; police encountered defendant as he

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walked out of bedroom; defendant asked for permission to finish dressing

before being taken into custody; police accompanied defendant inside

bedroom and observed blood-stained items; police justifiably escorted

defendant into bedroom to protect against flight or procurement of weapon).

      Inside the bedroom, Officer Ference watched Appellant attempt to

conceal something:

         I followed [Appellant] into the room. She had gotten, I
         believe, some clothing off the bed. I believe [she] went to
         retrieve a cell phone from the nightstand beside the bed,
         and I observed her very quickly grab an item off the top of
         the dresser and attempt to shove it in the open dresser
         drawers.

(See N.T. Suppression Hearing at 8.) On top of the dresser, Officer Ference

observed marijuana grinders and “chewing gum-sized rectangular…packages

wrapped in newspaper and tape.” (Id. at 11). Based on Officer Ference’s

training and experience with prior drug cases, he suspected that the

packages contained heroin. Officer Ference asked Appellant to return to the

living room.   Officer Ference then contacted the Hanover Township Police

Department to notify it about the drugs.

      Significantly, Officer Ference first noticed the contraband from a lawful

vantage point, because concerns for officer safety justified the officer’s

decision to accompany Appellant into the bedroom. Based upon his training

and experience, Officer Ference recognized the drug paraphernalia. Officer

Ference also recognized the rectangular packages as containers              for

narcotics.   The incriminating character of the packages was immediately

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apparent to Officer Ference.       (Id. at 12.)      Therefore, Officer Ference

satisfied each prong of the plain view doctrine. See Jones, supra.

        In response to the call from Officer Ference, Sergeant Orzechowski

arrived at the residence. Sergeant Orzechowski secured the bedroom and

contacted Officer Stefanowicz, a Hanover Township narcotics officer. While

waiting for Officer Stefanowicz to arrive, Sergeant Orzechowski advised

Appellant of her Miranda rights and provided her with a Miranda rights

waiver form.    Appellant indicated that she understood her rights, and she

completed the waiver form. Sergeant Orzechowski also supplied Appellant

with a “consent to search waiver,” which Appellant signed.              (See N.T.

Suppression Hearing at 31.)            Although Sergeant Orzechowski did not

actually question Appellant, he noted that Appellant appeared calm and

remained cooperative throughout their interaction.

        Officer Stefanowicz arrived while Appellant was executing the waiver

forms.    Officer Stefanowicz confirmed that Sergeant Orzechowski spoke to

Appellant in a calm, professional manner.         Moreover, the officers at the

scene did not draw their firearms during the interaction with Appellant.

After    Appellant   completed   the    waiver   forms,   she   spoke   to   Officer

Stefanowicz, informing him of the location of the contraband.                Officer

Stefanowicz proceeded to the bedroom and recovered the contraband. The

contents of the rectangular packages tested positive for heroin. Based upon

the foregoing, the suppression court correctly determined that Appellant


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legally consented to the officer’s search of the bedroom.                    See Caban,

supra.     We conclude the court properly denied Appellant’s suppression

motion.

       In her second issue, Appellant asserts the sentencing court imposed a

mandatory minimum term of three (3) years’ imprisonment, because the

police recovered 7.9 grams of heroin from her bedroom.                  Relying on the

United States Supreme Court’s decision in Alleyne, supra, as well as this

Court’s ruling in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc), Appellant argues that the court imposed the mandatory

minimum      term    pursuant     to   an      unconstitutional   statute.     Appellant

acknowledges that she did not raise this claim at sentencing, in a post-

sentence motion, or in her Rule 1925(b) statement, and raised it for the first

time in her appellate brief.             Nevertheless, Appellant suggests it is

appropriate for this Court to review the sentence on this basis. 4 Appellant

concludes the court imposed an illegal sentence for her PWID conviction, and


____________________________________________


4
  We are mindful of the decision in Alleyne, in which the United States
Supreme Court expressly held that any fact increasing the mandatory
minimum sentence for a crime is considered an element of the crime to be
submitted to the fact-finder and found beyond a reasonable doubt. Here,
the court imposed the mandatory minimum sentence per 18 Pa.C.S.A. §
7508 for Appellant’s PWID conviction. Consequently, we elect to review the
legality of Appellant’s PWID sentence. See Commonwealth v. Edrington,
780 A.2d 721 (Pa.Super. 2001) (explaining challenge to application of
mandatory minimum sentence is non-waiveable challenge to legality of
sentence, which this Court can raise sua sponte).



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this   Court    must    vacate    the   sentence   and   remand   the   matter   for

resentencing. We agree.

       Section 7508(a)(7)(ii) sets forth a mandatory minimum sentence of

three (3) years’ imprisonment where a defendant is convicted of PWID

involving at least five (5) grams but less than fifty (50) grams of heroin. 18

Pa.C.S.A. § 7508(a)(7)(ii).          Section 7508(b) states that the statutory

provisions shall not be an element of the crime and applicability of the

statute shall be determined at sentencing by a preponderance of the

evidence.      18 Pa.C.S.A. § 7508(b).         Recently, in Newman, supra, this

Court addressed the constitutionality of a similar statute, 42 Pa.C.S.A. §

9712.1, in light of the United States Supreme Court’s decision in Alleyne,

supra.5     Relying on Alleyne, Newman held that Section 9712.1 can no

longer pass constitutional muster as it “permits the trial court, as opposed to

the jury, to increase a defendant’s minimum sentence based upon a

preponderance of the evidence that the defendant was dealing drugs and

possessed a firearm, or that a firearm was in close proximity to the drugs.”

Newman, supra at 98. Thus, this Court vacated Newman’s PWID sentence

and remanded for resentencing without imposition of the mandatory

____________________________________________


5
  This Court also made clear that Alleyne is subject to limited retroactivity;
in other words, Alleyne is applicable to all criminal cases still pending on
direct review. Newman, supra at 90. Because Newman’s case was still
pending on direct appeal, the holding in Alleyne applied to Newman’s case,
as it also does here in this direct appeal.



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minimum under Section 9712.1. See also Commonwealth v. Valentine,

101 A.3d 801 (Pa.Super. 2014) (extending logic of Alleyne and Newman to

Sections 42 Pa.C.S.A. §§ 9712, 9713 and holding those sections are likewise

unconstitutional insofar as they permit automatic increase of defendant’s

sentence based on preponderance of evidence standard).

      Subsequently, this Court directly addressed the constitutionality of

Section 7508 in Commonwealth v. Vargas, ___ A.3d ___, 2014 PA Super

289 (filed December 31, 2014) (en banc), where the court imposed a

mandatory minimum sentence for a PWID conviction, pursuant to Section

7508(a)(7)(iii).    On appeal, this Court emphasized that Section 7508 “is

structured in the same manner as the statutes at issue in Newman and

Valentine….” Id. at *17. This Court concluded that Section 7508 is also

unconstitutional.

      Instantly, the court conducted a bench trial and convicted Appellant of

possession of a controlled substance and PWID.     At sentencing, the court

applied Section 7508.      Given this Court’s binding decisions in Newman,

Valentine, and Vargas, however, we must vacate and remand for

resentencing. Accordingly, we affirm Appellant’s convictions but vacate the

judgment of sentence and remand for resentencing without imposition of a

mandatory minimum sentence.

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




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