J-A14028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

VINCENT LEROY CARR

                            Appellant                   No. 1582 MDA 2014


            Appeal from the Judgment of Sentence August 20, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0000623-2014


BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                                 FILED MAY 18, 2015

        Appellant Vincent Leroy Carr appeals from the judgment of sentence

entered in the York County Court of Common Pleas following his bench trial

conviction for possession of a controlled substance with intent to deliver

(“PWID”).1     We affirm Appellant’s conviction, but vacate his judgment of

sentence and remand for resentencing.

        The trial court sets forth the relevant facts of this appeal as follows:

           Detective Scott Nadzom had been receiving information
           from an informant that a known unwitting drug dealer was
           being supplied with or obtaining cocaine from an unknown
           black male drug dealer, who resides in the area of 502 N.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
J-A14028-15


        Pershing Ave. in York City. The known unwitting drug
        dealer redistributes or sells the cocaine to other people.

        During a controlled buy, the informant called the known
        unwitting drug dealer to purchase cocaine.        Detective
        Nadzom searched the informant’s vehicle for any type of
        contraband with a negative result. He [then] supplied the
        informant with official funds to purchase the cocaine. At
        this point, the detective followed the informant to a
        predetermined location where he observed the informant
        meet with the known unwitting drug dealer. The informant
        remained under constant police surveillance, while other
        police observed the known drug dealer go directly from the
        informant to the first floor apartment of 502 N. Pershing
        Ave.    A short time later, police observed the known
        unwitting drug dealer exit the residence and return directly
        to the informant.

        After the meet was complete, police followed the informant
        to a predetermined location where the informant turned
        over the cocaine he had purchased.         The informant’s
        vehicle was again searched with negative results. The
        informant told police that the known unwitting drug dealer
        told him that his cocaine supplier at 502 N. Pershing Ave
        1st floor apartment had additional amounts of cocaine for
        sale. The informant in this case is a multi-drug dealer and
        user who is familiar with how cocaine is used, packaged,
        and sold in York County.

        Based on this information from the informant and the
        surveillance and controlled [buy], Detective Nadzom
        applied for and was subsequently issued a search warrant
        for 502 N. Pershing Ave. Upon execution of the search
        warrant, [Appellant] was charged with [PWID].

Trial Court Order Denying Appellant’s Omnibus Pre-Trial Motion (“6/9/14

Order”), filed June 9, 2014, at 1-2 (page numbers supplied) (internal

footnotes omitted).

     On May 16, 2014, Appellant filed an omnibus pre-trial motion,

including a motion to suppress evidence. The court conducted a hearing on

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May 19, 2014, and denied Appellant’s motions on June 9, 2014. Following a

stipulated bench trial conducted on June 18, 2014, the court convicted

Appellant of PWID.        N.T. 6/18/14, at 9-12.       The court further found

Appellant possessed 13 grams of cocaine in a school zone. Id.

        On June 26, 2014, the Commonwealth filed a notice of application of

mandatory minimum sentence pursuant to 18 Pa.C.S. §§ 7508 and 6317.

On July 29, 2014, Appellant filed a motion for extraordinary relief on the

basis    that   the   mandatory   minimum   statutes   are   no   longer   facially

constitutional in light of Alleyne v. United States, ___ U.S. ___, 133 S.Ct.

2151, 186 L.Ed. 2d 314 (2013).         On July 31, 2014, Appellant filed a

sentencing memorandum requesting an intermediate punishment sentence

of 24 months, with the first six months on electronically monitored house

arrest due to his family considerations, lack of criminal history over the past

27 years, severe medical history, and current medical condition. The same

day, the court conducted a sentencing hearing and requested further case

law on sentencing enhancements. On August 20, 2014, the court conducted

another sentencing hearing during which it asked the Commonwealth which

mandatory sentence it wanted applied.        The Commonwealth indicated it

wanted the court to apply the drug weight mandatory minimum, pursuant to

18 Pa.C.S. §§ 7508(3)(ii)(a). The court sentenced Appellant as follows:

          The court previously found [Appellant] guilty of [PWID],
          the weight that the court found was greater than 10 grams
          but less than a hundred. Therefore, the minimum applies.


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          [Appellant] is sentenced to 3 to 6 years in the state
          correctional institute.

N.T., 8/20/14, at 9-10.

       On September 19, 2014, Appellant timely filed a notice of appeal.

Appellant and the trial court complied with Pa.R.A.P. 1925.2

       Appellant raises the following issues for our review:

          1. WHETHER THE TRIAL COURT ERRED IN ITS JUNE 9,
          2014 ORDER DENYING [APPELLANT’S] OMNIBUS PRETRIAL
          MOTION, WHICH SOUGHT SUPPRESSION OF EVIDENCE
          OBTAINED PURSUANT TO THE EXECUTION OF A SEARCH
          WARRANT AT [APPELLANT’S] RESIDENCE, CONTENDING
          THAT THE JANUARY 21, 2014 APPLICATION FOR SEARCH
          WARRANT AND ACCOMPANYING AFFIDAVIT LACKED
          SUFFICIENT PROBABLE CAUSE, IN VIOLATION OF
          [APPELLANT’S] RIGHT TO BE FREE OF UNREASONABLE
          SEARCHES AND SEIZURES AS GUARANTEED BY THE
          FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED
          STATES CONSTITUTION, AND ARTICLE 1, SECTION 8 OF
          THE PENNSYLVANIA CONSTITUTION?

          2. WHETHER THE TRIAL COURT ERRED IN ITS AUGUST 20,
          2014 IMPOSITION OF 3 TO 6 YEARS[’] IMPRISONMENT
          PURSUANT [TO] THE MANDATORY MINIMUM SENTENCING
          PROVISIONS OF THE PENNSYLVANIA DRUG TRAFFICKING
          SENTENCING AND PENALTIES STATUTE, ERRING IN
          CONCLUDING THAT THIS STATUTE REMAINS FACIALLY
          CONSTITUTIONAL IN LIGHT OF THE UNITED STATES
          SUPREME COURT’S JUNE 17, 2013 DECISION IN ALLEYNE
          V. UNITED STATES, AS THIS STATUTE VIOLATES
____________________________________________


2
  On September 23, 2014, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On October 14, 2014, Appellant filed a motion for an extension of time in
which to file his concise statement. On October 17, 2014, the court granted
Appellant’s motion and ordered him to file a Rule 1925(b) statement within
30 days. Appellant timely complied on November 14, 2014, and the trial
court issued its Rule 1925(a) opinion on December 4, 2014.



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         [APPELLANT’S] RIGHT TO TRIAL BY JURY GUARANTEED BY
         THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
         UNITED STATES CONSTITUTION, AND ARTICLE 1,
         SECTION 6 OF THE PENNSYLVANIA CONSTITUTION?

Appellant’s Brief at 4.

      In his first issue, Appellant challenges the sufficiency of the affidavit of

probable cause supporting the search warrant.            Appellant argues the

affidavit lacked a basis for the confidential police informant’s reliability or

veracity. Further, he complains that the affidavit rests upon double-hearsay

statements without any additional showing of reliability or veracity of the

unwitting drug dealer. He concludes the court erred in denying his motion to

suppress evidence obtained as a result of the execution of the search

warrant. We disagree.

      When addressing a challenge to a trial court’s denial of a suppression

motion, our standard of review is “whether the factual findings are

supported by the record and whether the legal conclusions drawn from these

facts are correct.”       Commonwealth v. Hawkins, 45 A.3d 1123, 1126

(Pa.Super.2012), appeal denied, 53 A.3d 756 (Pa.2012) (internal citation

omitted). Further:

         [w]hen reviewing the rulings of a suppression court, we
         must 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 legal conclusions drawn therefrom are
         in error.

Id. (citations and internal quotation marks omitted).


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        Evidence obtained in violation of a defendant’s right to be free from

unreasonable searches and seizures cannot be used against him at trial.

See Commonwealth v. Lee, 972 A.2d 1, 5 (Pa.Super.2009).                           “Once a

motion to suppress evidence has been filed, it is the Commonwealth’s

burden to prove, by a preponderance of the evidence, that the challenged

evidence      was     not   obtained   in   violation   of   the    defendant’s   rights.”

Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa.2012) (citing

Pa.R.Crim.P. 581(H); Commonwealth v. Hamilton, 673 A.2d 915, 916

(Pa.1996)).

        The Fourth Amendment of the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect against unreasonable

searches and seizures. See Commonwealth v. Gillespie, 103 A.3d 115,

118 (Pa.Super.2014).          The Pennsylvania Constitution provides, in relevant

part:

            § 8. Security from searches and seizures

            The people shall be secure in their persons, houses, papers
            and possessions from unreasonable searches and seizures,
            and no warrant to search any place or to seize any person
            or things shall issue without describing them as nearly as
            may be, nor without probable cause, supported by oath or
            affirmation subscribed to by the affiant.

Pa. Const. Art. I, § 8.

        “In determining whether the warrant is supported by probable cause,

the magistrate may not consider any evidence outside the four-corners of

the     affidavit.”     Commonwealth          v.   Ryerson,        817   A.2d   510,   513

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(Pa.Super.2003) (quoting Commonwealth v. Sharp, 683 A.2d 1219, 1223

(Pa.Super.1996). Additionally,

        [t]he legal principles applicable to a review of the
        sufficiency of probable cause affidavits are well settled.
        Before an issuing authority may issue a constitutionally
        valid search warrant, he or she must be furnished with
        information sufficient to persuade a reasonable person that
        probable cause exists to conduct a search. The standard
        for evaluating a search warrant is a ‘totality of the
        circumstances’ test as set forth in Illinois v. Gates, 462
        U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and
        adopted in Commonwealth v. Gray, 503 A.2d 921
        ([Pa.]1985).     A magistrate is to make a “practical,
        common sense decision whether, given all the
        circumstances set forth in the affidavit before him,
        including the ‘veracity’ and ‘basis of knowledge’ of persons
        supplying hearsay information, there is a fair probability
        that contraband or evidence of a crime will be found in a
        particular place.” The information offered to establish
        probable cause must be viewed in a common sense, non-
        technical manner. Probable cause is based on a finding of
        the probability, not a prima facie showing of criminal
        activity, and deference is to be accorded a magistrate’s
        finding of probable cause. Commonwealth v. Dean, 693
        A.2d 1360, 1365 (Pa.Super.1997) (citations, quotations,
        and emphasis omitted).

Ryerson, supra at 513-14.

     Regarding confidential informants, our Supreme Court has held that:

        a determination of probable cause based upon information
        received from a confidential informant depends upon the
        informant’s reliability and basis of knowledge viewed in a
        common sense, non-technical manner. Commonwealth
        v. Luv, 735 A.2d 87, 90 ([Pa.]1999). Thus, an informant’s
        tip may constitute probable cause where police
        independently corroborate the tip, or where the informant
        has provided accurate information of criminal activity in
        the past, or where the informant himself participated in
        the criminal activity. Id. The corroboration by police of
        significant details disclosed by the informant in the

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        affidavit of probable cause meets the Gates threshold.
        Commonwealth v. Sanchez, 907 A.2d 477, 488
        ([Pa.]2006) (quoting United States v. Tuttle, 200 F.3d
        892, 894 (6th Cir.2000)) (“[I]nformation received from an
        informant whose reliability is not established may be
        sufficient to create probable cause where there is some
        independent corroboration by police of the informant’s
        information.”)   [The Pennsylvania Supreme] Court has
        recently expressed the standard broadly: “The linch-pin
        that has been developed to determine whether it is
        appropriate to issue a search warrant is the test of
        probable cause. Probable cause exists where the facts and
        circumstances within the affiant’s knowledge and of which
        he has reasonably trustworthy information are sufficient in
        themselves to warrant a man of reasonable caution in the
        belief    that   a    search    should   be   conducted.”
        Commonwealth v. Jones, 988 A.2d 649, 655
        ([Pa.]2010) (citations omitted).

Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa.2011).

     In this case, the affidavit of probable cause provided:

        The undersigned is Det. Scott Nadzom who has been a
        police officer with the York City Police for the last 18 years
        and I am currently assigned to the Vice & Narcotics Unit of
        the York City Police Department. I was also a member of
        the York County Drug Task Force from 1997 until 2013.
        Over my career as a police officer with York City, I have
        been involved in or associated with over a thousand drug
        investigations.

        Within the last month l received information that a known
        unwitting drug dealer is being supplied with or obtaining
        cocaine from an unknown black male drug dealer, who
        resides in the area of 502 N. Pershing Ave. in York City,
        then the known unwitting black male drug dealer
        redistributes or sell[s] this cocaine to other people.

        Within the last 72 [hours], the same informant as noted
        above called a known unwitting drug dealer and ordered
        up a quantity of cocaine.       With that, I searched the
        informant and [its] vehicle for any type of contraband with
        negative results then I supplied the informant with official

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       funds (photocopied) to purchase cocaine from the known
       unwitting drug dealer. I followed the informant to a pre-
       determined location where I observed the informant meet
       with the known unwitting drug dealer. The informant
       remained stationary under constant police surveillance
       while other police observed the known unwitting drug
       dealer go directly from the informant to 502 N. Pershing
       Ave. where the known unwitting drug dealer entered the
       1st floor apt. of 502 N. Pershing Ave. A short time later,
       police observed the known unwitting drug dealer exit 502
       N. Pershing Ave. 1st floor apt. and return directly to the
       informant. After the meet was complete between the
       informant and the known unwitting drug dealer, police
       followed the informant to a pre-determined location where
       the informant turned over a quantity of cocaine which the
       informant purchased from the known unwitting drug dealer
       with official funds. The item purchased from the known
       unwitting drug dealer field-tested positive for cocaine. I
       searched the informant and it’s vehicle again for any type
       of contraband with negative results. The known unwitting
       drug dealer told the informant that the known unwitting
       drug dealer’s cocaine supplier at 502 N. Pershing Ave. 1 st
       floor apt. had additional amounts of cocaine for sale. The
       informant involved in this incident is a multi-drug
       dealer/user who is familiar with how cocaine is used,
       packaged and sold in York County.

       During the above-described incident, police kept the
       informant under constant surveillance and the informant
       only had contact with the known unwitting drug dealer.
       Police also surveilled the known unwitting drug dealer
       throughout the duration of this incident except for the time
       period the known unwitting drug dealer was inside 502 N.
       Pershing Ave. 1st floor apt. in York City.

       With regard to the known unwitting drug dealer and other
       on-going drug investigations as it relates to the informant
       involved in this incident, the known unwitting drug dealer
       will be charged with felony drug deliveries at a later date.

       Based on the above information I request a search warrant
       for 502 N. Pershing Ave. 1st floor apt. (City of York) in
       order to search for additional amounts of cocaine as well
       as the official funds used in the above described incident.

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         Also include any curtilage associated with the residence as
         well as all persons present during the service of the
         warrant. I am requesting all persons to be searched based
         on this detective’s experience that cocaine can be
         concealed on a person and later destroyed.

Affidavit of Probable Cause, dated January 21, 2014.

      Based on this affidavit of probable cause, the magistrate properly

issued a search warrant. The trial court reasoned:

         Here, the controlled buy corroborated the information
         given to police by the informant. The police observed the
         known drug dealer[,] who redistributes the cocaine from
         his supplier, enter the residence, exit, and deliver cocaine
         to the informant. This fact certainly connected the illegal
         transaction to [Appellant’s] residence, in a common sense,
         non-technical way, and permitted the issuing authority to
         conclude that drugs would likely be found in the residence.
         Under the totality of the circumstances, there was a
         sufficient connection between the residence and the
         transaction to corroborate the [informant’s] information
         that drugs were stored in the residence, and to support a
         determination of probable cause to issue a search warrant
         to search the residence.

6/9/14 Order at 5-6.      We see no reason to disturb the trial court’s order

denying Appellant’s suppression motion, because the record supports the

court’s factual findings and its legal conclusions are correct. See Hawkins,

supra.

      In his second issue, Appellant argues the trial court erred by imposing

the mandatory minimum sentence pursuant to 18 Pa.C.S. §§ 7508(3)(ii)(a),

as it is facially unconstitutional in light of Alleyne. We agree.

      Our standard of review regarding the imposition of a mandatory

sentence is as follows:

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     Generally, a challenge to the application of a mandatory
     minimum sentence is a non-waiveable challenge to the legality
     of the sentence. Issues relating to the legality of a sentence are
     questions of law, as are claims raising a court’s interpretation of
     a statute. Our standard of review over such questions is de
     novo and our scope of review is plenary.

Hawkins, supra at 1130.

     The sentencing code provides, in relevant part:

        § 7508. Drug trafficking sentencing and penalties

        (a) General rule.--Notwithstanding any other provisions
        of this or any other act to the contrary, the following
        provisions shall apply:

                                 *     *      *

           (3) A person who is convicted of violating section
           13(a)(14), (30) or (37) of The Controlled Substance,
           Drug, Device and Cosmetic Act where the controlled
           substance is coca leaves or is any salt, compound,
           derivative or preparation of coca leaves or is any
           salt, compound, derivative or preparation which is
           chemically equivalent or identical with any of these
           substances or is any mixture containing any of these
           substances except decocainized coca leaves or
           extracts of coca leaves which (extracts) do not
           contain cocaine or ecgonine shall, upon conviction,
           be sentenced to a mandatory minimum term of
           imprisonment and a fine as set forth in this
           subsection:


                                 *     *      *

           (ii) when the aggregate weight of the compound or
           mixture containing the substance involved is at least
           ten grams and less than 100 grams; three years in
           prison and a fine of $15,000 or such larger amount
           as is sufficient to exhaust the assets utilized in and
           the proceeds from the illegal activity; however, if at
           the time of sentencing the defendant has been
           convicted of another drug trafficking offense: five

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              years in prison and $30,000 or such larger amount
              as is sufficient to exhaust the assets utilized in and
              the proceeds from the illegal activity; and


                                  *    *       *

           (b) Proof of sentencing.--Provisions of this section shall
           not be an element of the crime. Notice of the applicability
           of this section to the defendant shall not be required prior
           to     conviction,    but   reasonable    notice   of   the
           Commonwealth's intention to proceed under this section
           shall be provided after conviction and before sentencing.
           The applicability of this section shall be determined at
           sentencing. The court shall consider evidence presented at
           trial, shall afford the Commonwealth and the defendant an
           opportunity to present necessary additional evidence and
           shall determine, by a preponderance of the evidence, if
           this section is applicable.

18 Pa.C.S. § 7508.

        In Alleyne, the Supreme Court held that the Due Process Clause of

the Federal Constitution requires each factor that increases a mandatory

minimum sentence to be submitted to a jury and found beyond a reasonable

doubt. Alleyne, 133 S.Ct at 2163. Based upon Alleyne, this Court stated

in dicta in Commonwealth v. Watley that 18 Pa.C.S. § 75083 and 42

Pa.C.S. § 9712.14 are unconstitutional insofar as they permit a judge to

automatically increase a defendant’s sentence based on a preponderance of

____________________________________________


3
    § 7508. Drug trafficking sentencing and penalties.
4
    § 9712.1. Sentences for certain drug offenses committed with firearms.




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the evidence standard for factors other than a prior conviction. Watley, 81

A.3d 108, 117 n. 4 (Pa.Super.2013) (en banc), appeal denied, 95 A.3d. 277

(Pa.2014)

        More     recently,     in        Commonwealth         v.    Newman,        99   A.3d   86

(Pa.Super.2014) (en banc), following our dicta in Watley, we held that the

preponderance          of    the     evidence      standard        in    section   9712.1(c)   is

unconstitutional under Alleyne. We then addressed whether it was possible

to continue enforcing the remaining subsections of section 9712.1 after

severing subsection (c). We held that section 9712.1, as a whole, was no

longer workable, because subsection (c) was “essentially and inseparably

connected” with the mandatory minimum sentencing provision in subsection

(a). Newman, supra at 101. Further, in Commonwealth v. Valentine,

101 A.3d 801 (Pa.Super.2014), this Court found 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. We cannot do so.” Valentine, 101 A.3d at

811.

        In a case factually similar to our present case, this Court concluded

that the imposition of a sentence pursuant to 18 Pa.C.S. § 7508(a)(2)(iii)

was illegal and must be vacated. See Commonwealth v. Cardwell, 105

A.3d     748,    754-55       (Pa.Super.2014);          see    also       Commonwealth         v.

Thompson, 93 A.3d 478, 494 (Pa.Super.2014).                                 In Cardwell, the


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Commonwealth and the appellant stipulated to the total weight of the drug

PCP.    Cardwell, supra at 754.         The trial court concluded that the

Commonwealth had proved the element of the weight of the drugs beyond a

reasonable doubt and applied the mandatory minimum pursuant to Section

7508. Id. This Court vacated the judgment of sentence and remanded for

resentencing without the imposition of the statutory minimum.

       Because the trial court sentenced Appellant pursuant to the mandatory

minimum under 18 Pa.C.S. § 7508, we conclude that his sentence is illegal

and must be vacated under the foregoing authorities.

       Conviction affirmed. Judgement of sentence vacated; case remanded

for resentencing. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2015




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