J-S65020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ARNOLD MILLER,

                         Appellant                    No. 2872 EDA 2014


           Appeal from the Judgment of Sentence March 28, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002024-2012


BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 06, 2015

      Appellant, Arnold Miller, appeals from the judgment of sentence

entered following his convictions of possession of a controlled substance with

intent to deliver (“PWID”) and simple possession of a controlled substance.

We vacate the judgment of sentence and remand for resentencing.

      The trial court set forth the underlying facts of this case as follows:

            On August 3, 2011, at about 4:45 p.m., Philadelphia Police
      Officer Matthew Beattie went to 1220 West Lindley Avenue, the
      site of a large apartment building, to investigate an anonymous
      report that a tall black male was selling drugs out of Apartment
      601. (N.T. 2/28/14, 12, 13). Upon arrival, Officer Beattie
      provided a confidential informant (hereinafter “[the] CI”) $20.00
      in pre-recorded “buy” money and then accompanied the CI to
      the sixth floor of the building. The officer observed the CI
      approach Apartment 601, where he engaged Appellant, who was
      standing in the doorway of the apartment, in conversation. (Id.
      at 13, 16).
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           After a brief conversation, both Appellant and the CI
     entered the apartment. (Id. at 14). The CI soon exited the
     apartment and returned to Officer Beattie at which time he gave
     the officer two clear plastic vials with orange tops containing a
     white chunky substance that testing revealed to be crack
     cocaine. (Id. at 14, 39). Officer Beattie returned to police
     headquarters and prepared a search and seizure warrant for the
     apartment. (Id.).

            Once the warrant was approved, Officer Beattie returned
     to the apartment building on August 4, 2011, with other officers,
     including an Officer Hawkins, to execute the warrant. (Id. at
     17). Before executing the search and seizure warrant, Officer
     Hawkins, using pre–recorded “buy” money, made a purchase of
     crack cocaine from Appellant, who after engaging the officer in a
     brief conversation in the doorway of the apartment, ushered the
     officer into the apartment where Officer Hawkins purchased five
     purple Ziploc packets of crack cocaine. (Id. at 17, 18, 39).
     When Officer Hawkins returned with the narcotics, Officer Beattie
     and a back-up team executed the warrant. (Id. at 18).

           Once inside the apartment, police placed Appellant under
     arrest. (Id. at 19). A search incident to arrest of Appellant
     yielded $106.00 in U.S. currency plus the two $20.00 bills in
     pre-recorded “buy” money given to Officer Hawkins. (Id. at 19).

           The search of the apartment resulted in the seizure of a
     clear plastic bag filled with eighty-six clear [vials] containing
     crack cocaine that were the same shape, size, and color of the
     packets the CI turned over to the officer the previous day,
     eleven red Ziploc packets containing marijuana, a clear plastic
     bag containing twelve purple-tinted Ziploc packets that were the
     same shape, size, and color as the ones Officer Hawkins had
     purchased that contained crack cocaine, and a clear plastic bag
     that contained twelve clear vials with a gold top[].1 (Id. at 19-
     20, 39). Police also recovered two hand guns from the kitchen,
     one of which was loaded. (Id. at 20-21). All of these items
     were placed on property receipts.
           1
             In total, there was in excess of two grams of crack
           cocaine. (N.T. 2/28/14, 39; 3/28/14, 5).

Trial Court Opinion, 4/15/15, at 2-3 (footnote omitted).


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      On February 10, 2014, following a nonjury trial, Appellant was

convicted of the crimes stated above.     On March 28, 2014, the trial court

sentenced Appellant to a mandatory term of incarceration of three to ten

years for the conviction of PWID.     Appellant filed a timely post-sentence

motion, which was denied by operation of law on September 11, 2014. This

timely direct appeal followed.    Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      IS THE MANDATORY SENTENCE OF THREE TO TEN YEARS
      IMPOSED ON APPELLANT ILLEGAL BECAUSE THE STATUTORY
      PROVISION UNDER WHICH APPELLANT WAS SENTENCED IS
      UNCONSTITUTIONAL PURSUANT TO ALLEYNE V. UNITED
      STATES[,  133  S.Ct.  2151  (2013)]  AND NUMEROUS
      PENNSYLVANIA SUPERIOR COURT DECISIONS?

Appellant’s Brief at 2.

      Appellant argues that the trial court imposed an illegal mandatory

minimum sentence for his conviction of PWID, which was based upon the

weight of the drugs in question.      In support of his argument that his

mandatory minimum sentence is illegal, Appellant cites this Court’s recent

decision in Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en

banc), appeal denied, ___ A.3d ___ (Pa. filed July 27, 2015), which held

that under the United States Supreme Court’s decision in Alleyne, as well as

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

Super. 2014) (en banc) and Commonwealth v. Valentine, 101 A.3d 801

(Pa. Super. 2014), 18 Pa.C.S. § 7508 is unconstitutional.

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     Although Appellant did not contest the imposition of the mandatory

minimum sentence under Alleyne at the time of sentencing or in his post-

sentence motion, “a challenge to a sentence premised upon Alleyne …

implicates the legality of the sentence and cannot be waived on appeal.”

Newman, 99 A.3d at 90. Moreover, this Court may address the legality of a

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

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

     This Court has held that 18 Pa.C.S. § 7508 is invalid pursuant to

Alleyne.   See Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super.

2014) (holding that, notwithstanding the fact triggering imposition of

mandatory sentence under 18 Pa.C.S. § 7508 was stipulated to at trial, the

statute was unconstitutional). As Appellant observes, an en banc panel of

this Court has stated that “a mandatory minimum sentence imposed under

this statute is illegal.” Vargas, 108 A.3d at 876 (citing Fennell). See also

Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014) (holding

trial court erred by imposing mandatory minimum sentence under Section

7508, even where parties stipulated to weight of drugs; applying Newman

and its progeny, and concluding that Section 7508(b) is not severable from

remainder of statute; and remanding for resentencing without imposition of




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mandatory minimum sentence).1 Accordingly, because 18 Pa.C.S. § 7508 is

unconstitutional, we vacate the judgment of sentence and remand for

resentencing.

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015


____________________________________________


1
  The trial court has agreed with Appellant that, pursuant to current case
law, the mandatory minimum sentence invoked here by application of 18
Pa.C.S. § 7508 is illegal, the sentence should be vacated, and the case
remanded for resentencing. Trial Court Opinion, 4/15/15, at 4-5. We
further observe that the Commonwealth has recognized that case law
authored by this Court is controlling until the Supreme Court rules
otherwise, but has reserved its right to seek further review.
Commonwealth’s Brief at 11, 15. Indeed, we must follow the decisional law
established by our own Court. Commonwealth v. Santiago, 980 A.2d
659, 666 n.6 (Pa. Super. 2009).

       Furthermore, we note that recently in Commonwealth v. Hopkins,
117 A.3d 247 (Pa. 2015), our Supreme Court, in a direct appeal filed by the
Commonwealth from an order of the Court of Common Pleas, relied upon
Alleyne and struck down as unconstitutional the mandatory minimum
sentencing scheme regarding drug-free school zones set forth in 18 Pa.C.S.
§ 6317. In pertinent part, the Court in Hopkins refused to sever the
violative provisions from the statute, which was the same determination
reached by this Court in Newman.



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