J-S62032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BAHIR ABDUL BELL

                            Appellant               No. 3156 EDA 2013


            Appeal from the Judgment of Sentence October 8, 2013
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0000819-2013


BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                          FILED DECEMBER 19, 2014

        Bahir Abdul Bell appeals the judgment of sentence imposed October 8,

2013, in the Delaware County Court of Common Pleas. Bell was sentenced

to a mandatory minimum two to five years’ imprisonment1 for his jury

conviction of possession with intent to deliver a controlled substance

(PWID),2 namely codeine. On appeal, Bell challenges the sufficiency of the

evidence supporting the jury’s determination that he possessed drugs with

the intent to deliver them, rather than for his personal use.   Although we

conclude the sole issue raised on appeal is meritless, for the reasons set



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1
    See 18 Pa.C.S. § 6317 (“Drug-free school zones”).
2
    35 P.S. § 780-113(a)(30).
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forth below, we are, nevertheless, constrained to vacate the judgment of

sentence and remand for resentencing.

      The facts underlying Bell’s arrest and conviction are aptly summarized

by the trial court as follows:

            On December 23, 2010, approximately 11:30 P.M., Officer
      Steven Russo, Upper Darby Police Department, was dispatched
      to a Wawa convenience store located at 7720 West Chester Pike
      in Upper Darby, Pennsylvania. Upon arriving, Officer Russo’s
      attention was drawn toward a white vehicle with disabled
      headlights parked directly in front of the neighboring and closed
      Highland Beverage store. Officer Russo observed that there
      were two (2) males located inside this car. Believing that this
      motor vehicle may have had a connection to the radio call,
      Officer Russo began walking in the direction of the car.

            Officer Russo proceeded toward the vehicle for further
      inquiry and was approximately twenty (20) feet from the car
      when it quickly fled the vicinity. As Officer Russo approached
      the motor vehicle he neither had his weapon drawn nor had he
      made any verbal contact with the vehicle’s occupants. Officer
      Russo on nearing the car before it fled the lot was able to
      determine that the two (2) individuals inside the vehicle were
      both black males. Officer Russo provided a description over
      police radio for a white vehicle with an unknown Virginia license
      plate fleeing on West Chester Pike toward State Road.

            Officer Russo very quickly received word this car was
      stopped at West Chester Pike and State Road by fellow officers.
      Upon arriving at this closeby scene, Officer Russo recognized the
      same two (2) individuals he had observed inside the while
      vehicle only literally seconds prior, one of whom was identified
      as Defendant Bell. Defendant Bell was subsequently brought to
      the police station where his car was also towed.

            After the vehicle was towed, Detective Sergeant Daniel
      Lanni and Detective Brad Ross conducted a search of the car.
      The detectives were permitted to conduct the search after being
      given Defendant Bell’s consent which was formalized through a
      Consent to Search Form [Bell] duly executed and signed. Upon
      searching the motor vehicle, the detectives concluded the car


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       was an Avis rental vehicle on discovering an Avis rental
       agreement. The Avis documentation detailed that the car was
       rented to a Veronica Bell, later determined to the mother of
       Defendant Bell.

              While conducting the search of the vehicle, the detectives
       found hidden in the trunk’s spare tire compartment a white
       prescription bag and a black plastic bag containing a large
       prescription bottle.     This bottle’s label specified that the
       prescription was in [Bell’s] name, and the bottle was further
       labeled as Prometh/COD SYP. The prescription bottle contained
       a reddish orange liquid. The black bag also held thirteen (13)
       small glass vials of two (2) sizes with plastic lids that were as
       well filled with a reddish orange liquid similar to the content of
       the prescription bottle. Upon laboratory analysis, the thirteen
       (13) clear glass vials were found to contain the controlled
       substance, codeine, in syrup form.

Trial Court Opinion, 3/31/2014, at 9-11 (record citations omitted).

       Bell was subsequently charged with PWID, possession of controlled

substances, possession of a small amount of marijuana and possession of

drug paraphernalia.3        The Commonwealth later proceeded to trial only on

the PWID charge, and withdrew the three remaining counts.           In addition,

prior to trial, the court granted the Commonwealth’s motion to amend the

PWID charge to reflect the averment that the offense “occurred within 250

feet of a recreation center.”       See Order, 7/11/2013.   The jury returned a

verdict of guilty on the charge of PWID, and specifically found the offense

____________________________________________


3
  35 P.S. §§ 780-113(a)(30), (a)(16), (a)(31), and (a)(32), respectively.
When Bell’s vehicle was stopped, the police noticed a strong odor of
marijuana emanating from the car. They subsequently recovered a partially
smoked marijuana blunt from Bell’s pants pocket. See Criminal Complaint,
2/17/2011, at 5-6 (Affidavit of Probable Cause).




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occurred “within 250 feet of Apple Pie Day Care, Inc. located at 3 South

State Road, Upper Darby Township, Pennsylvania[.]” Verdict, 7/12/2013.

       On September 26, 2013, the trial court sentenced Bell to a mandatory

minimum term of two to five years’ imprisonment pursuant to 18 Pa.C.S. §

6317, for his commission of the offense “within 250 feet of the real property

on which is located a recreation center[.]”4      Id.   Bell filed a motion for

reconsideration of sentence requesting credit for additional time-served.

The court filed an amended sentencing order on October 8, 2013, granting

Bell the credit requested, and this timely appeal followed.5

       The sole issue raised on appeal challenges the sufficiency of the

evidence. Bell contends the evidence presented was insufficient to prove he

possessed the codeine recovered from the trunk of the vehicle with the

intent to deliver it, rather than for his own personal use. Bell’s Brief at 12.

Specifically, he argues:

       There were no cash or cell phones seized. There were no
       dilutants or cutting agents f[o]und. And most importantly, the

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4
  The parties stipulated at trial that (1) Bell’s vehicle was stopped within 250
feet of Apple Pie Daycare, Inc., and (2) that Apple Pie Daycare Inc. “is
classified as a recreation center pursuant to the applicable statutory
definition.” N.T., 7/11/2013, Volume II, at 182-183.
5
  On November 14, 2013, the trial court ordered Bell to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Bell complied with the court’s directive and filed a concise statement on
December 4, 2013.




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      investigating officers made no observations of any particular
      conduct of [Bell] indicative of drug dealing behavior.

Id. (emphasis in original). Although Bell acknowledges the Commonwealth

presented the testimony of an expert witness who opined Bell possessed the

codeine with the intent to deliver it, Bell asserts the expert’s opinion was

“too weak and inconclusive to support the inference that [he] possessed the

codeine with the intent to deliver it.” Id. at 17.

      Our review of a challenge to the sufficiency of the evidence is well-

established:

      [W]e evaluate the record in the light most favorable to the
      Commonwealth as the verdict winner, giving the prosecution the
      benefit of all reasonable inferences to be drawn from the
      evidence. “Evidence will be deemed sufficient to support the
      verdict when it establishes each material element of the crime
      charged and the commission thereof by the accused, beyond a
      reasonable doubt.”        However, the Commonwealth need not
      establish guilt to a mathematical certainty, and it may sustain its
      burden by means of wholly circumstantial evidence. Moreover,
      this Court may not substitute its judgment for that of the
      factfinder, and where the record contains support for the
      convictions, they may not be disturbed. Lastly, we note that the
      finder of fact is free to believe some, all, or none of the evidence
      presented.

Commonwealth v. Taylor, 33 A.3d 1283, 1287-1288 (Pa. Super. 2011)

(internal citations omitted), appeal denied, 47 A.3d 847 (Pa. 2012).         See

Commonwealth        v.   Ratsamy,     934   A.2d     1233,   1236   (Pa.   2007)

(emphasizing appellate court reviewing sufficiency claim “must determine

simply whether the evidence believed by the fact-finder was sufficient to

support the verdict”).




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      “To convict a person of PWID, the Commonwealth must prove beyond

a reasonable doubt that the defendant possessed a controlled substance and

did so with the intent to deliver it.” Commonwealth v. Bricker, 882 A.2d

1008, 1015 (Pa. Super. 2005) (citation omitted). The Commonwealth may

prove the defendant’s intent to deliver “wholly by circumstantial evidence.”

Id. (citation omitted).   When the intent to deliver is not evident from the

facts, the Commonwealth may present expert testimony on the issue.

      Such testimony is admissible to aid in determining whether the
      facts surrounding the possession of controlled substances are
      consistent with intent to deliver. The amount of the controlled
      substance is not “crucial to establish an inference of possession
      with intent to deliver, if ... other facts are present.”

Ratsamy, supra, 934 A.2d at 1237 (citation omitted).

      After a thorough review of the trial transcript, we find the court, in its

opinion, thoroughly and accurately summarized the testimony of the

Commonwealth’s expert witness, Detective Timothy Bernhardt.           See Trial

Court Opinion, 3/31/2014, at 11-14 (summarizing expert’s testimony that

(1) the vials recovered from the trunk were “wholly consistent with the

containers commonly used to package liquid codeine for illicit street sales;”

(2) the vials seized were also in the quantity frequently encountered in

street sales, “one-half (0.5) ounce or one (1) ounce sizes;” (2) the street

value of the vials recovered was $350; (3) the secretive placement of the

vials in the trunk’s spare tire compartment supported an inference of intent

to deliver; (4) the absence of money or cell phones not dispositive; and (5)

an individual possessing codeine for personal use “would not package [it in

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vials] … and keep it secreted in the spare tire compartment of a rental car’s

trunk.”). Furthermore, we conclude the court provides a well-reasoned basis

for its determination that the Commonwealth presented sufficient evidence

to support the jury’s verdict of PWID. See Id. at 14-23. Our review of the

record reveals ample support for the trial court’s conclusion that the jury’s

verdict was based upon “weak and inconclusive” testimony. Bell’s Brief at

17.   Therefore, we adopt the sound reasoning of the Honorable Kevin F.

Kelly as dispositive of the one issue raised on direct appeal.

       Nevertheless, the trial court imposed a mandatory minimum sentence

pursuant to 18 Pa.C.S. § 6317, a statute that has been found to be

constitutionally infirm in light of the United States Supreme Court’s decision

in Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).                 See

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc);

Commonwealth v. Bizzel, ___ A.3d ___, 2014 PA Super 267 (Pa. Super.

December 2, 2014) (applying Newman to Section 6317). Although Bell did

not contest the imposition of the mandatory minimum sentence on appeal,

“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 90.6 Moreover, this Court may address the legality of a defendant’s


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6
 We note that the Pennsylvania Supreme Court recently granted allocatur to
consider, inter alia, “[w]hether a challenge to a sentence pursuant to
Alleyne [] implicates the legality of the sentence as and is therefore non-
(Footnote Continued Next Page)


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sentence sua sponte. Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.

Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014).

      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).

      In Commonwealth v. Newman, supra, an en banc panel of this

Court concluded that Alleyne rendered the mandatory minimum sentencing

provision of a similar statute, 42 Pa.C.S. § 9712.1, unconstitutional.    Like

the statute at issue herein, subsection (c) of Section 9712 permits 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).

      The Newman Court vacated the judgment of sentence and remanded

for resentencing without consideration of the mandatory minimum statute.

The Court opined:

      Plainly, Section 9712.1 can no longer pass constitutional muster.
      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
                       _______________________
(Footnote Continued)

waivable.” Commonwealth v. Johnson, 93 A.3d 806 (Pa 2014) (granting
allocatur).



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      possessed a firearm, or that a firearm was in close proximity to
      the drugs. Under Alleyne, the possession of the firearm must
      be pleaded in the indictment, and must be found by the jury
      beyond a reasonable doubt before the defendant may be
      subjected to an increase in the minimum sentence. As that is
      not the case instantly, we are constrained to vacate appellant’s
      sentence and remand for resentencing without regard for any
      mandatory minimum sentence prescribed by Section 9712.1.

Id. at 98.

      Furthermore, the Newman Court rejected the Commonwealth’s

suggestion that the illegality of the statute could be remedied upon remand,

by empanelling a jury to consider whether the Commonwealth proved,

beyond a reasonable doubt, the factors necessary to impose the mandatory

minimum. The Court held:

      We find that Subsections (a) and (c) of Section 9712.1 are
      essentially and inseparably connected.     Following Alleyne,
      Subsection (a) must be regarded as the elements of the
      aggravated crime of possessing a firearm while trafficking drugs.
      If Subsection (a) is the predicate arm of Section 9712.1, then
      Subsection (c) is the “enforcement” arm. Without Subsection
      (c), there is no mechanism in place to determine whether the
      predicate of Subsection (a) has been met.

Id. at 101. The Court concluded “it is manifestly the province of the General

Assembly to determine what new procedures must be created in order to

impose mandatory minimum sentences in Pennsylvania following Alleyne.

We cannot do so.” Id. at 102.

      Following Newman, this Court in Commonwealth v. Valentine, 101

A.3d 801 (Pa. Super. 2014), vacated a mandatory minimum sentence

imposed pursuant to 42 Pa.C.S. §§ 9712 and 9713, after a jury had

determined that the defendant committed a crime of violence with a


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firearm   and   in   or   near   public    transportation.   In   that   case,   the

Commonwealth recognized the potential Alleyne issue, and like the

prosecutor herein, amended the criminal information, prior to trial, to

include the allegations necessary to impose the mandatory minimum

sentences. Id. at 804. Furthermore, similar to the present case, the trial

court in Valentine “permitted the jury, on the verdict slip, to determine

beyond a reasonable doubt” whether the facts supported imposition of the

mandatory minimum.          Id. at 811.        In concluding that the trial court

performed an “impermissible legislative function,” the Valentine Court

opined:

      The trial court erroneously presupposed that only Subsections
      (c) of both 9712 and 9713 (which permit a trial judge to
      enhance the sentence based on a preponderance of the evidence
      standard) were unconstitutional under Alleyne, and that
      Subsections (a) of 9712 and 9713 survived constitutional
      muster. By asking the jury to determine whether the factual
      prerequisites set forth in § 9712(a) and § 9713(a) had been
      met, the trial court effectively determined that the
      unconstitutional provisions of § 9712(c) and § 9713(c) were
      severable. Our decision in Newman however holds that the
      unconstitutional provisions of § 9712(c) and § 9713(c) are not
      severable but “essentially and inseparably connected” and that
      the statutes are therefore unconstitutional as a whole.

      Moreover, Newman makes clear that “it is manifestly the
      province of the General Assembly to determine what new
      procedures must be created in order to impose mandatory
      minimum sentences in Pennsylvania following Alleyne.”
      Therefore, the trial court lacked the authority to allow the jury to
      determine the factual predicates of §§ 9712 and 9713.

Id. at 811-812 (internal citations omitted).




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     Although we recognize the Commonwealth and trial judge attempted

to comply with the dictates of Alleyne, we are constrained by Valentine

and Newman to reverse the judgment of sentence herein, and remand for

resentencing   without    consideration   of    the   Section   6317   mandatory

minimum.

     Accordingly, although we conclude Bell’s challenge to the sufficiency of

the evidence is meritless, we must, nevertheless, vacate the judgment of

sentence and remand for resentencing in light of the erroneous imposition of

the mandatory minimum sentence pursuant to Section 6317.

     Judgment of sentence vacated.             Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




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