J-S70043-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                   Appellee            :
                                       :
                 v.                    :
                                       :
MICHAEL WILLIAMS,                      :
                                       :
                   Appellant           :    No. 1422 EDA 2014


    Appeal from the Judgment of Sentence Entered September 6, 2013,
          in the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0001102-2013

BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED DECEMBER 16, 2014

     Michael Williams (Appellant) appeals from the judgment of sentence

entered September 6, 2013, following his convictions for operating a

methamphetamine laboratory; possession of red phosphorus, etc., with

intent to manufacture a controlled substance; use of, or possession with

intent to use, drug paraphernalia; and manufacture, delivery, or possession

with intent to manufacture or deliver a controlled substance.1 Upon review,

we affirm Appellant’s convictions, vacate Appellant’s judgment of sentence,

and remand for resentencing.

     On January 17, 2013, the Easton Police Department charged Appellant

with the above crimes. A jury trial was held from July 8 through July 10,


1
  35 P.S. §§ 780-113.4(a)(1), 780-113.1(a)(3), 780-113(a)(32), 780-
113(a)(30), respectively.


* Retired Senior Judge assigned to the Superior Court.
J-S70043-14


2013.      During the trial, the Commonwealth presented the testimony of

Inspector Salvatore Crisafulli of the Easton Police Department and Rebecca

Patrick, a lab technician from the State Police Clandestine Drug Laboratory

Response Team. The Commonwealth also submitted numerous exhibits into

evidence, including items found in the garbage at Appellant’s residence,

photographs of the garbage, lab reports, a DVD containing a recording of

Appellant’s police interview, a printout from Meth Check (an online database

containing     information    tracking    the   purchase   of   ephedrine     and

pseudoephedrine), and letters written by Appellant to Inspector Crisafulli.

Appellant did not testify at trial.

        The trial court summarized the testimony and evidence at trial as

follows:

               Inspector Crisafulli testified that on January 16, 2013, he
        participated in an investigation related to the manufacture of
        controlled substances from a residence identified as 1415 Pine
        Street in Easton, Pennsylvania. At approximately 4:00 a.m. that
        morning, he participated in a “trash pull,” in which the police
        took two bags of trash from three curbside trashcans in front of
        1415 Pine Street. The officers brought these bags of trash back
        to the station for examination. Inspector Crisafulli testified that
        they initially discovered long strips of paper and broken
        batteries.   There was also a strong, intense chemical odor
        coming from the bags, along with a white gas.

              The officers contacted the Pennsylvania State Clandestine
        Response Team to aid in processing the items and to limit the
        hazardous exposure of the officers. The items recovered from
        the trash pull included (1) broken batteries, including lithium
        strips and battery hulls; (2) a brownish liquid in a Pepsi bottle
        marked as “waste[;”] (3) a melted bottle with a white solid
        gassing substance; (4) starting fluid; (5) an ammonia test kit
        and PH test kit; (6) empty blister packs of pseudoephedrine-


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J-S70043-14


     based medicine; (7) ice packs, which contain ammonia nitrate in
     small round balls; and (8) a broken meth pipe.

           Inspector Crisafulli further testified that the Easton Police
     Department executed a search warrant on [Appellant’s] second-
     floor bedroom in the early afternoon of January 16, 2013. The
     items seized, memorialized in an inventory receipt and made
     part of the record as Commonwealth Exhibit 39, included (1)
     packs of cold compresses, which were cut open; (2) a can of
     Prestone Starting Fluid, unopened; (3) a box of baking soda; (4)
     two containers of salt; (5) a small glass dish and aluminum foil;
     (6) an ammonia nitrate test kit; (7) isopropyl alcohol; (8) a full-
     mouth facemask respirator; and (9) a box containing meth
     pipes. Inspector Crisafulli further testified that some of the
     items recovered under the search warrant needed to be
     destroyed due to their hazardous nature.

            Through    Inspector    Crisafulli,   the   Commonwealth
     introduced into evidence a DVD containing an audio and visual
     recording of a police interview with [Appellant] at the Easton
     Police Station after the police officers had executed a search
     warrant. Further, the Commonwealth introduced [Appellant’s]
     history of purchasing ephedrine/pseudoephedrine products
     through a printout of a tracking database, Meth Check.
     Inspector Crisafulli testified that the Meth Check database
     established that [Appellant’s] last purchase of pseudoephedrine
     occurred on January 6, 2013, after which [Appellant] was
     blocked from purchasing additional pseudoephedrine for thirty
     days. Inspector Crisafulli stated that an individual’s purchase of
     pseudoephedrine is limited by law to 9 grams every thirty days.
     The Meth Check data base [sic] indicated that [Appellant] had
     also made two separate purchases of pseudoephedrine on
     December 26, 2012, one at Walmart and the other at Giant.
     Finally, the Commonwealth introduced four letters written by
     [Appellant] to Inspector Crisafulli, in which [Appellant] discussed
     his extensive knowledge of cooking meth, volunteered to aid the
     police in investigating local methamphetamine labs, and
     critiqued the evidence obtained by the police in the instant case.

            [Ms. Patrick] testified as an expert witness at trial in the
     field of drug analysis and the hazmat clean-up of meth labs. In
     her testimony, the Commonwealth introduced into evidence two
     laboratory reports. In her first lab report, Ms. Patrick focused on
     evidence obtained through the “trash pull” and gave an overview


                                    -3-
J-S70043-14


     of the one-pot method of meth cooking that is commonly used in
     Pennsylvania.     Ms. Patrick concluded that the clandestine
     manufacturing of methamphetamine was attempted, but
     unsuccessful, citing the ignited plastic bottle, which she referred
     to as the “cooking vessel,” as evidence that something went
     wrong in the manufacturing process. Ms. Patrick testified that
     no methamphetamine was found because it appeared that the
     cooking process had failed.

           Ms. Patrick also testified about the two blister packs of cold
     medicine. Ms. Pa[t]rick testified that each blister pack holds 3.6
     grams of pseudoephedrine and can be used to generate a one[-]
     to[-]one ratio of methamphetamine – 3.6 grams of
     pseudoephedrine can produce 3.6 grams of methamphetamine.

           The second lab report focused on the items seized from
     [Appellant’s] bedroom when the police officers executed the
     search warrant. Ms. Patrick went through the inventory list and
     explained how some of the items seized could be used to
     manufacture methamphetamine.       Ms. Patrick concluded that
     many of the items found were consistent with the one-pot
     method commonly used in Pennsylvania.

            During her testimony, Ms. Patrick was presented with a
     Pepsi bottle, which was filled with what appeared to be a
     brownish liquid. The bottle was marked “waste,” apparently
     labeled prior to its seizure by law enforcement. Ms. Patrick
     testified that she removed and weighed just the liquid. Then she
     tested the liquid for the presence of methamphetamine and
     identified the presence of methamphetamine crystals in the
     liquid.

            On    direct    and   cross-examination,     Ms.    Patrick
     acknowledged that the liquid solution was not entirely
     methamphetamine. It also contained the by-products from the
     manufacture of methamphetamine. Ms. Patrick testified that
     one knowledgeable about the manufacturing process can store
     the waste from the manufacturing process to later distill the
     solution to retrieve the methamphetamine that is dissolved
     within. Further, Ms. Patrick acknowledged that it is possible that
     the solution may also have contained urine, as knowledgeable
     users can recycle urine to reclaim any methamphetamine that
     was not processed by the body. However, Ms. Patrick did not
     test the solution for the presence of urine. Further, Ms. Patrick


                                    -4-
J-S70043-14


      did not reduce the liquid solution to measure the weight of only
      the methamphetamine. The lab report indicated that the entire
      solution weighed 1,340 grams.

            The Commonwealth also played the video statement of
      [Appellant] for the jury.    During his statement, [Appellant]
      bragged about his knowledge of the local methamphetamine
      market and his experience and talent related to cooking meth.
      [Appellant] (and here [the trial court] paraphrase[d]) basically
      argued to the police that the meth lab located in the trash bags
      was not his work, because the lab was amateurish and beneath
      his abilities.

Trial Court Order, 4/15/2014, 2-5 (citations and footnote omitted).

      On July 10, 2013, the jury found Appellant guilty of all charges. In so

doing, the jury also concluded that Appellant had manufactured between 5

and 10 grams of methamphetamine.

      On September 6, 2013, the trial court sentenced Appellant to an

aggregate 6 ¼ years to 21 years’ incarceration. For the charge of operating

a methamphetamine laboratory, Appellant received a sentence of 35 months

to 120 months of incarceration. For the charge of manufacture, delivery, or

possession with intent to manufacture or deliver a controlled substance,

Appellant received a sentence of 36 months to 120 months of incarceration.

For the charge of use of, or possession with intent to use, drug

paraphernalia, Appellant received a sentence of 4 months to 12 months of

incarceration.   For the charge of possession of red phosphorus, etc., with

intent to manufacture a controlled substance, Appellant was sentenced to 24

months to 48 months of incarceration. All of the sentences ran consecutive

to each other, with the exception of Appellant’s sentence for possession of


                                    -5-
J-S70043-14


red phosphorus, etc., with intent to manufacture a controlled substance,

which was to run concurrent with the other sentences.

     On September 6, 2013, Appellant filed post-sentence motions pro se.

On September 9, 2013, defense counsel was discharged, as Appellant raised

complaints of ineffectiveness of counsel, and conflict counsel was appointed

to represent Appellant regarding post-sentence matters.

     On September 16, 2013, Appellant filed a pro se notice of appeal to

this Court.     Consequently, the trial court found that Appellant’s notice

divested the trial court of jurisdiction and entered an order denying said

motions pursuant to Pa.R.A.P. 1701(a) on September 24, 2013. On or about

December 6, 2013, this Court remanded the matter for purposes of filing

counseled post-sentence motions nunc pro tunc.           On March 13, 2014,

Appellant filed his post-sentence motions, which the trial court denied on

April 15, 2014. Appellant then timely appealed to this Court.

     On     appeal,   Appellant   presents   the   following   issues   for   our

consideration:

          1. Whether the evidence was insufficient to sustain the
             verdict and the verdict was against the weight of the
             evidence?

          2. (a) Whether the trial court’s consecutive sentencing for
             one event in one criminal departure in a [(]although
             violating several criminal statutes[)] [sic] 6 ¼ years – 21
             years is excessive and does not reflect the conduct of …
             Appellant?

              (b) Whether the trial court failed to comply with the
              requirements of … 18 Pa.C.S.[] §[]7508([b]) which


                                     -6-
J-S70043-14


            requires that all of the provisions of the aforesaid statute
            should not be an element of the crime. Therefore, the
            sentence is unlawful [pursuant] to [Commonwealth v.
            Watley, 81 A.3d 108 (Pa. Super. 2013)]?

         3. Whether the court’s instruction and jury verdict slip with
            regard to weight of methamphetamine is erroneous?

Appellant’s Brief at 3.

      In his first issue, Appellant purports to challenge both the weight and

sufficiency of the evidence supporting his convictions.           Nevertheless, his

actual   argument    appears   to   be    limited   to   a   sufficiency   challenge.

Accordingly, we conclude that Appellant has waived his weight claim for his

failure to develop it,2 and we apply the following standard of review:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The

2
  This Court has held that an appellant cannot present bald assertions in
support of relief.

      It is not for this Court to develop an appellant’s arguments.
      Rather, it is the appellant’s obligation to present developed
      arguments and, in so doing, apply the relevant law to the facts
      of the case, persuade us there were errors, and convince us
      relief is due because of those errors. If an appellant fails to do
      so, we may find the argument waived.

Commonwealth v. Rush, 959 A.2d 945, 950-51 (Pa. Super. 2008).


                                         -7-
J-S70043-14


     Commonwealth may sustain its burden of proving every element
     of the crime beyond a reasonable doubt by means of wholly
     circumstantial evidence. Moreover, in applying the above test,
     the entire record must be evaluated and all evidence actually
     received must be considered. Finally, the trier of fact while
     passing upon the credibility of witnesses and the weight of the
     evidence produced, is free to believe all, part or none of the
     evidence.

Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en

banc) (quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa.

Super. 2008)).

      Appellant purports to challenge the sufficiency of the evidence

supporting all four of his convictions; however, in support of his claim,

Appellant presents a general contention that the Commonwealth failed to

prove beyond a reasonable doubt that Appellant possessed the ingredients

that are required to manufacture methamphetamine.       To the extent that

Appellant argues that the Commonwealth is required to prove beyond a

reasonable doubt that Appellant possessed every ingredient necessary to

manufacture methamphetamine, we reject such an argument.            We are

unaware of, and Appellant fails to cite, any legal authority imposing such a

requirement.     Only two of Appellant’s convictions implicate the specific

ingredients needed to manufacture methamphetamine, and they are written

in the disjunctive.   Specifically, under The Controlled Substance, Drug,

Device and Cosmetic Act,

     A person commits the offense of operating a methamphetamine
     laboratory if the person knowingly causes a chemical reaction
     involving ephedrine, pseudoephedrine or phenylpropanolamine,


                                    -8-
J-S70043-14


      or any other precursor or reagent substance under section 13.1,
      [35 P.S. § 780-113.1,] for the purpose of manufacturing
      methamphetamine or preparing a precursor or reagent
      substance for the manufacture of methamphetamine.

35 P.S. § 780-113.4(a)(1) (footnote omitted) (emphasis added).

      Moreover, 35 P.S. § 780-113.1(a)(3) prohibits the act of

      [p]ossessing red phosphorous, hypophosphoric acid, ammonium
      sulfate, phosphorous, iodine, hydriodic acid, ephedrine,
      pseudoephedrine, lithium, sodium, potassium, sassafras oil,
      safrole oil or other oil containing safrole or equivalent, whether
      in powder or liquid form, phenylpropanolamine, phenyl acetone,
      methylamine, ammonium sulfate, ammonium nitrate or phenyl
      acetic acid with intent to manufacture a controlled substance.

Id. (emphasis added).3 Thus, Appellant’s argument is without merit.

      Moreover, to the extent that Appellant argues that the Commonwealth

failed to prove beyond a reasonable doubt that Appellant possessed any of

the ingredients needed to manufacture methamphetamine, this argument


3
  Appellant was also convicted of violating 35 P.S. § 780-113(a)(30), which
prohibits “the manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed by the appropriate
State board, or knowingly creating, delivering or possessing with intent to
deliver, a counterfeit controlled substance.” Id. Finally, Appellant was
convicted of violating 35 P.S. § 780-113(a)(32), which prohibits

      [t]he use of, or possession with intent to use, drug paraphernalia
      for the purpose of planting, propagating, cultivating, growing,
      harvesting, manufacturing, compounding, converting, producing,
      processing, preparing, testing, analyzing, packing, repacking,
      storing, containing, concealing, injecting, ingesting, inhaling or
      otherwise introducing into the human body a controlled
      substance in violation of this act.

Id.



                                     -9-
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also fails.   The items seized from the trash pull and Appellant’s bedroom

included, inter alia, broken batteries, including lithium strips and battery

hulls; starting fluid; two empty blister packs of pseudoephedrine-based

medicine; ice packs containing ammonium nitrate pellets; baking soda; and

salt containers. N.T., 7/9/2013, at 18-26, 35-43. Further, the information

from the Meth Check database demonstrated Appellant’s history of repeated

purchases of pseudoephedrine or pseudoephedrine-based medicine between

July 2012 and January 2013. Id. at 58-61. Additionally, Inspector Crisafulli

and Ms. Patrick testified as to how several of the seized items, particularly

the starting fluid, lithium strips, ice packs containing ammonium nitrate,

baking soda, pseudoephedrine, and salt, are used in the manufacture of

methamphetamine.         Id. at 18-21, 23-26, 140-46.        From this direct and

circumstantial evidence, the jury could reasonably conclude that Appellant

possessed the ingredients necessary to manufacture methamphetamine,

particularly the pseudoephedrine listed in 35 P.S. §§ 780-113.1(a)(3) and

780-113.4(a)(1).

      Appellant also argues that there is insufficient evidence to prove that

the amount of methamphetamine Appellant manufactured was between 5

and 10 grams.       We disagree.     The police recovered two blister packs of

pseudoephedrine-based medicine from the trash pull. N.T., 7/9/2013, at 23.

According     to   Ms.   Patrick,   each   blister   pack   holds   3.6   grams   of

pseudoephedrine, which can be used to generate a one-to-one ratio of



                                       - 10 -
J-S70043-14


methamphetamine.       Id. at 137.      Using simple math, the jury could

reasonably conclude that using the two blister packs of pseudoephedrine,

Appellant manufactured 7.2 grams of methamphetamine, which is within the

5-to-10-gram range found by the jury. Thus, Appellant’s sufficiency-of-the-

evidence claim is without merit.

     Appellant next challenges both the discretionary aspects of his

sentence and the legality of his sentence. With regard to his discretionary

aspects of sentence claim, Appellant has failed to include in his brief a

statement pursuant to Pa.R.A.P. 2119(f), and the Commonwealth has

objected to this omission. Commonwealth’s Brief at 15.             Appellant,

therefore, has waived this issue. See Commonwealth v. Roser, 914 A.2d

447, 457 (Pa. Super. 2006) (“A failure to include the Rule 2119(f) statement

does not automatically waive an appellant’s [discretionary aspects of

sentencing] argument; however, we are precluded from reaching the merits

of the claim when the Commonwealth lodges an objection to the omission of

the statement.”) (quoting Commonwealth v. Love, 896 A.2d 1276, 1287

(Pa. Super. 2006)).4


4
  In the context of his discretionary aspects of sentencing claim, Appellant
argues that his aggregate sentence is in contravention of 42 Pa.C.S.
§ 9756(b)(1). Because this argument actually goes to the legality of his
sentence, we address it here. See Commonwealth v. Hurst, 532 A.2d
865, 869 n.2 (Pa. Super. 1987) (providing that “illegality of sentence is not
waivable and may be raised by this Court sua sponte”).

     Under 42 Pa. C.S. § 9756(b)(1), “[t]he court shall impose a minimum
sentence of confinement which shall not exceed one-half of the maximum


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J-S70043-14


     As to Appellant’s challenge to the legality of his sentence, he appears

to argue that the trial court unlawfully imposed a mandatory minimum

sentence pursuant to 18 Pa.C.S. § 7508, which provides, in relevant part:

     (4) 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
     methamphetamine or phencyclidine or is a salt, isomer or salt of
     an isomer of methamphetamine or phencyclidine or is a mixture
     containing methamphetamine or phencyclidine, containing a salt
     of methamphetamine or phencyclidine, containing an isomer of
     methamphetamine or phencyclidine, containing a salt of an
     isomer of methamphetamine or phencyclidine shall, upon
     conviction, be sentenced to a mandatory minimum term of
     imprisonment and a fine as set forth in this subsection:

        (i) when the aggregate weight of the compound or mixture
        containing the substance involved is at least five grams
        and less than ten 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 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[.]

                               ***

     (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

sentence imposed.” Appellant was sentenced to an aggregate 6 ¼ to 21
years of incarceration. As 6 ¼ years is less than one-half of 21 years (or
10 ½ years), Appellant’s aggregate sentence does not violate 42 Pa.C.S.
§ 9756(b)(1). Thus, Appellant’s claim in this regard is without merit.


                                   - 12 -
J-S70043-14


      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(a)(4)(i), (b).

      In support of his argument, Appellant cites Commonwealth v.

Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc), wherein this Court noted

the effect of Alleyne v. United States, 133 S.Ct. 2151 (2013), on

mandatory minimum sentencing statutes in Pennsylvania:

      According to the Alleyne Court, a fact that increases the
      sentencing floor is an element of the crime. Thus, it ruled that
      facts that mandatorily increase the range of penalties for a
      defendant must be submitted to a fact-finder and proven beyond
      a reasonable doubt. The Alleyne decision, therefore, renders
      those Pennsylvania mandatory minimum sentencing statutes
      that do not pertain to prior convictions constitutionally infirm
      insofar as they permit a judge to automatically increase a
      defendant’s sentence based on a preponderance of the evidence
      standard.

Watley, 81 A.3d at 117 (footnote omitted).5

      Notably,    notwithstanding     its    observations   regarding    the

constitutionality of Pennsylvania’s mandatory minimum sentencing statutes

outlined above, the Watley Court upheld the mandatory minimum sentence

in that case, which the trial court imposed pursuant to 42 Pa.C.S. § 9712.1.

Watley, 81 A.3d at 121. The Court did so on the ground that “the factual

predicates for determining the mandatory minimum [had been] proven to a

jury beyond a reasonable doubt.” Id.



5
 Among those mandatory minimum sentencing statutes listed in Watley is
18 Pa.C.S. § 7508(b). See id. at 117 n.4.


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J-S70043-14


      Here, the factual predicate for imposing the mandatory minimum

pursuant to 18 Pa.C.S. 7508(a)(4)(i) was likewise determined by a jury

under the beyond-a-reasonable-doubt standard.6 Nevertheless, we hold that

Appellant’s sentence is illegal.   In so doing, we find this Court’s recent

decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(en banc) and Commonwealth v. Valentine, __ A.3d __, 2014 WL

4942256 (Pa. Super. filed October 3, 2014) instructive.

      In Valentine, this Court aptly discussed the Newman decision as

follows:

      In Newman, we reviewed the constitutionality of 42 Pa.C.S.A.
      § 9712.1, which enhances the minimum sentence where a
      firearm is found on a drug dealer, an accomplice, or in the
      vicinity of the contraband. …

                                    [***]

      We explained in Newman that under Alleyne, the factual
      predicates for imposition of the § 9712.1 mandatory minimum
      sentence (i.e., that the firearm was found on a drug dealer, an
      accomplice or in the vicinity of the contraband) “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

6
  Specifically, the trial court instructed the jury that if it found Appellant
guilty of manufacture, delivery, or possession with intent to manufacture or
deliver a controlled substance, it also must make a determination as to the
weight of the methamphetamine that Appellant manufactured for sentencing
purposes. N.T., 7/10/2013, at 46-47. The trial court also instructed the
jury that it “must agree unanimously that each and every element for each
charge has been proven with proof beyond a reasonable doubt before [it
could] find the defendant guilty,” and provided the jury with a definition of
that standard. Id. at 25-26, 53-54. Moreover, the verdict slip included an
interrogatory as to the weight of methamphetamine Appellant manufactured,
which the jury answered by marking “5 -<10 grams.” See Verdict Slip,
7/10/2013, at 1.


                                    - 14 -
J-S70043-14


     increase in the minimum sentence.” Concluding that the factual
     predicates for imposition of the mandatory minimum sentence
     had not been presented to a jury, we vacated the judgment of
     sentence.

     Notably in Newman, we declined the Commonwealth’s proposed
     remedy that we remand for a sentencing jury to determine
     beyond a reasonable doubt whether the Commonwealth had
     proven the factual predicates for § 9712.1. We explained:

       [T]he Commonwealth’s assertion assumes that Subsection
       (a) of Section 9712.1, which sets the predicate for the
       mandatory minimum sentence, survives constitutional
       muster, and that only Subsection (c), which directs that
       the trial court shall determine the predicate of Subsection
       (a) by a preponderance of the evidence, fails. In other
       words, the Commonwealth is contending that we may
       sever and retain those parts of Section 9712.1 that are not
       constitutionally infirm.... We respectfully disagree.

                                 [***]

       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.

         { "pageset": "S29
                   The Commonwealth’s suggestion that we
       remand for a sentencing jury would require this court to
       manufacture whole cloth a replacement enforcement
       mechanism for Section 9712.1; in other words, the
       Commonwealth is asking us to legislate. We recognize that
       in the prosecution of capital cases in Pennsylvania, there is
       a similar, bifurcated process where the jury first
       determines guilt in the trial proceeding (the guilt phase)
       and then weighs aggravating and mitigating factors in the
       sentencing proceeding (the penalty phase). However, this
       mechanism was created by the General Assembly and is



                                  - 15 -
J-S70043-14


        enshrined in our statutes at 42 Pa.C.S.A. § 9711. We find
        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, 2014 WL 4942256, at *6-*8 (citations omitted) (quoting

Newman, 99 A.3d at 98, 101-02). Thus, in Newman, this Court vacated

and remanded for resentencing without consideration of the mandatory

minimum sentences provided in Section 9712.1. Newman, 99 A.3d at 103.

     In Valentine, this Court addressed whether the trial court’s imposition

of mandatory minimum sentences pursuant to 42 Pa.C.S. § 9712 and 42

Pa.C.S. § 9713 was unlawful. Importantly,

     the trial court permitted the jury, on the verdict slip, to
     determine beyond a reasonable doubt whether Appellant
     possessed a firearm that placed the victim in fear of immediate
     serious bodily injury in the course of committing a theft for
     purposes of the mandatory minimum sentencing provisions of 42
     Pa.C.S.A. § 9712(a), and whether the crime occurred in whole or
     in part at or near public transportation, for purposes of the
     mandatory minimum sentencing provisions of 42 Pa.C.S.A.
     § 9713(a). The jury responded “yes” to both questions.

Valentine, 2014 WL 4942256, at *8.          Nevertheless, we observed in

Valentine that

     [i]n presenting those questions to the jury, however, we
     conclude, in accordance with Newman, that the trial court
     performed an impermissible legislative function by creating a
     new procedure in an effort to impose the mandatory minimum
     sentences in compliance with Alleyne.

     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


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        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. (citations omitted) (quoting Newman, 99 A.3d at 101-02). Therefore,

although we recognized that “this Court has upheld sentences imposed

under     various   mandatory     minimum       sentencing   provisions   rendered

unconstitutional by the Alleyne decision,” such as in Watley, we vacated

and remanded for resentencing without consideration of the mandatory

minimum sentences in sections 9712 and 9713. Id. at 9 & n.4.

        Based on the foregoing, we likewise hold that, here, the trial court

impermissibly attempted to “cure” the constitutional defects of section 7508

by submitting the question of weight of methamphetamine to the jury to be

determined using the beyond-a-reasonable-doubt standard.7            As such, we



7
  In Appellant’s final issue, he argues that the trial court’s instruction and the
jury verdict slip are erroneous “with regard to [the] weight of
methamphetamine.” Appellant’s Brief at 15. For the reasons already stated
herein, we agree that the jury instructions and verdict slip, as they pertain
to the jury’s determination of weight of methamphetamine manufactured
beyond a reasonable doubt, are improper.


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vacate    Appellant’s      sentence   and   remand    for   resentencing   without

consideration       of    the   mandatory   minimum     sentences   provided    in

section 7508.

       Convictions affirmed. Judgment of sentence vacated. Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/16/2014




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