J-S59020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
    BILLY WHITE                                :
                                               :
                 Appellant                     :   No. 3255 EDA 2016

                   Appeal from the PCRA Order October 13, 2016
               In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0002429-2012


BEFORE:        BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 19, 2017

         Billy White appeals pro se1 from the order entered October 13, 2016,

in the Court of Common Pleas of Montgomery County, that dismissed, without

a hearing, his first petition filed pursuant to the Pennsylvania Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. White seeks collateral relief

from the judgment of sentence to serve an aggregate sentence of five to ten

years’ imprisonment, imposed after he was convicted by a jury of possession

with intent to deliver (PWID) cocaine, possession of cocaine, possession of
____________________________________________


   Former Justice specially assigned to the Superior Court.

1 Appointed counsel filed a Turner/Finley no-merit letter and was granted
leave to withdraw by the PCRA court. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc).
J-S59020-17



marijuana, and possession of drug paraphernalia.2 Based upon the following,

we affirm in part, reverse in part, and remand for resentencing.

        The parties are well acquainted with the facts of this case, which were

set forth by this Court in White’s direct appeal.     See Commonwealth v.

White, 97 A.3d 814 (Pa. Super. 2014) (unpublished memorandum).

        Before this Court, White raises nine issues, which we reproduce

verbatim:

        [1.] IS IT ANVIOLATION OF THE PETITIONERS CONSTITUTIONAL
        RIGHT TO RECEIVE AND RESPONED TO 907 (1) OPINION FOR
        DISSMISSING THE P.C.R.A. PETITION WITH OUT AN HEARING,
        AND ABUSE OF TRIAL COURT DISCRETION ON DUE PROCESS
        RIGHTS SO PETITIONER COULD RESPONED TO THE LAYER OF
        INEFFECTIVE CLAIMS?

        [2.] WAS TRIAL COUNSEL INFFECTIVE IN FAILING TO CHALLENGE
        THE VERCITY OF THE AFFIDAVIT OF PROBABLE CAUSE WHEN IT
        “LACK PROBABLE CAUSE” TO ARREST THE PETITONER BASIS
        SOLEY OFF OF HEARSAY WITHOUT AN EYE WITNESS OR AN
        WIRED TAP, AND COMMONWEALTH WITNESS TESTIFIED THAT
        THE PETITIONER NEVER TOLD ANITRIA WHITE HE HAD THE
        VEHICLE THE NIGHT IN QUESTION, BUT COURTS OPINION SAY
        DIFFERENT.

        [3.] WAS TRIAL COUNSEL INFFECTIVE IN FAILING TO SUPPRESS
        EVIDENCE DO TO THE “LACK OF PROBABLE CAUSE,” AND THE
        ILLEGAL SEARCH THE NIGHT IN QUESTION? WHEN THE VEHICLE
        WAS ONLY IN AN UNAUTHORIZED AREA AND THE CALL WAS TO
        REMOVE THE VEHICLE FROM THE PREMISES, WHEN
        RESGISTIONS WAS VALID AS OFFICER ASTON TESTIFIED TOO
        AND NO FELONEY WAS COMMITED AND NO EXIGENT
        CIRCUMSTANCES WAS AT HAND?

        [4.] IS THERE LACK OF SUBJECT MATTER JURISDICTION AND AN
        VIOLATION OF PETITIONERS RIGHTS WHEN ARRESTED WITH
____________________________________________


2   35 P.S. § 780-113(a)(30), (16), (31)(i), and (32), respectively.

                                           -2-
J-S59020-17


     OUT AN ARREST WARRANT IN HIS HOME WITH HIS GIRL FRIEND
     WITH OUT AN FELONY BE COMMITED IN THE PRESENCE OF THE
     POLICE THE NIGHT IN QUESTION 2/26/12? CHECK MAGISTRATE
     DOCKETS AND SIGNATURES.

     [5.] WAS THERE A LACK OF SUBJECT MATTER JURISDICTION
     WHEN ESTABLISHING PRIMA FACIE CASE AT THE PRELIMINARY
     HEARING WHEN IT LACK JURISDICTION DUE TO THE NON
     EXISTING ARREST WARRANT AND WITNESSES NOT WILLING TO
     TESTIFY FOR THE COMMONWEALTH BECAUSE WITNESSES DID
     NOT KNOW TO WHAT THEY WERE TESTIFING TOO DUE TO THE
     MISSLEADING STATEMENTS BY DET JACKSON QUESTIONS TRIAL
     COURTS JURISDICTION OVER THE PETITIONER?

     [6.] WAS TRIAL COUNSEL INEFFECTIVE FOR REPRESENTING
     COMMONWEALTH'S WITNESSES THE SAME TIME HE WAS
     DEFENDING HIS CLIENT AND NOT LETTING THE COURTS KNOW
     AND HIS CLIENT KNOW HE WAS REPRESENTING ANITRIA WHITE
     AND TOREYN TUGGLE AND BRITTANI TUGGLE WHO PROVIDED
     STATEMENTS TO IMPLICATE HIS CLIENT IN THESE ALLEGE ACTS?

     [7.] WAS TRIAL COUNSEL INEFFECTIVE FOR NOT MEETING WITH
     HIS CLIENT PRIOR TO TRIAL AND FILING POST SENTENCE
     MOTIONS AND NOT SHOWING THE PETITIONER DISCOVERY
     EVIDENCE AT ALL OR STRATEGIZING A DEFENSE EXPLAINS THE
     CAUSE OF THE UNDISCOVERED ARREST WARRANT AND
     UNSIGNED SEARCH WARRANT IN THESE CROSS APPEALS?

     [8.] WAS TRIAL COUNSEL INEFFECTIVE IN STIPULATING TO THE
     WEIGHT OF DRUGS WITHOUT INVESTIGATING OR ASKING HIS
     CLIENT ABOUT IT WHEN IT WAS NEVER ESTABLISHED AT THE
     PRELIMINARY HEARING AND FAILING TO OBJECT TO
     PETITIONER'S MANDATORY MINIMUM ON POST SENTENCE
     REVIEW WHEN IT WAS NOT PRESENTED TO JURY AND IT WAS
     LATER DISCOVERED ON THE BILL OF INFORMATION AFTER
     SENTENCING?

     [9.] WAS THE TRIAL COURT SENTENCING SCHEME ILLEGAL IN
     FAILING TO CREDIT TIME SPENT IN CUSTODAY WHILE WAITING
     TRIAL FOR ALL THREE DOCKETS (8501-2010) AND (2429-2012)
     AND (2430-2012) WHEN COMMITMENT DATE WAS THE DAY OF
     SENTENCING 2/8/13?




                               -3-
J-S59020-17



White’s Brief at 4–5.3

       Our standard of review of a PCRA court’s ruling is well settled:

       Under the applicable standard of review, we must determine
       whether the ruling of the PCRA court is supported by the record
       and is free of legal error. The PCRA court’s credibility
       determinations, when supported by the record, are binding on this
       Court. However, this Court applies a de novo standard of review
       to the PCRA court’s legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citations omitted).

       Preliminarily, we note White presents no argument in his brief with

regard to the seventh, eighth and ninth issues. Accordingly, these issues have

been waived.      See Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa.

Super. 2008) (stating an issue identified on appeal but not developed in an

appellant’s brief is abandoned and, therefore, waived).

       With regard to the first issue, it appears White is contending he did not

receive Pa.R.Crim.P. 907 notice of intent to dismiss the petition. The PCRA

court, however, opined that the Rule 907 notice was mailed to White following

PCRA counsel’s filing of a no-merit letter:

       PCRA counsel filed a Tu[r]ner/Finley no-merit letter dated April
       20, 2015,11 finding no meritorious issues to pursue in regard to
       docket number 2429-2012. On September 12, 2016, [the PCRA
       court] issued a pre-dismissal notice pursuant to Pa.R.Crim.P. 907,
       notifying White of this Court’s intention to dismiss his PCRA
       petition without a hearing and of his right to file a response to the
       Rule 907 notice.12 13 This notice was mailed to White via certified

____________________________________________


3White timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement. White raised 51 claims in his concise statement. See
White’s Concise Statement, 11/21/2016.

                                           -4-
J-S59020-17


       mail. White did not file a response and on October 12, 2016, a
       final order of dismissal was issued.

           11A copy of PCRA counsel’s no-merit letter is appended to
           this Opinion so as to be made a part of the record.

           12The pre-dismissal notice also permitted PCRA counsel to
           withdraw his appearance.

           13The pre-dismissal notice incorrectly identifies the date of
           PCRA counsel’s no-merit letter as April 21, 2015. Rather[,]
           the no-merit letter which pertains to this case is dated April
           20, 2015.

PCRA Court Opinion, 12/16/2016, at 5.4

       Even if we accept White’s claim that he did not receive the Rule 907

notice, no relief is due.      When a Turner/Finley letter has been filed and

served on the defendant, the PCRA court can dismiss a PCRA petition without

a hearing and without notice of its intent to do so where the court waits 20

days following the service of the letter. See Commonwealth v. Bond, 630

A.2d 1281, 1283 (Pa. Super. 1993) (holding additional notification of the

court’s intention to dismiss appellant’s petition without a hearing under

Pa.R.Crim.P. 1507 [now Rule 907] was unnecessary where counsel and court

adhered to procedure established in Finley). See also Commonwealth v.

Hopfer, 965 A.2d 270, 275 (Pa. Super. 2009) (“[S]ervice of any type of notice



____________________________________________


4 Despite the PCRA court’s statement that the no-merit letter is appended to
the opinion, there is no attachment to the PCRA court’s opinion, and the no-
merit letter is not otherwise included in the certified record. Nor is the Rule
907 notice in the certified record. Nevertheless, the absence of these
documents in the certified record does not hinder our review.

                                           -5-
J-S59020-17


of dismissal must occur at least twenty days before [appellant’s] petition is

dismissed.”). Here, White was informed by the April 20, 2015 no-merit letter

that there were no meritorious PCRA issues, and the PCRA court formally

dismissed the PCRA petition on October 12, 2016. Therefore, no relief is due

on White’s first claim.

      In White’s second claim, he contends trial counsel was ineffective for

failing to challenge the veracity of the affidavit of probable cause when it

lacked probable cause to arrest him.      We find this issue is waived because

White failed to raise the issue in his PCRA petition.     See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”). Accordingly, no relief is due on this claim.

      In his third claim, White argues that trial counsel was ineffective in

failing to challenge the search of the vehicle. The PCRA court properly rejected

this issue, concluding that White had no privacy right in the abandoned car.

See PCRA Court Opinion, 12/16/2016, at 9-11.          We agree with the PCRA

court’s analysis and no further discussion is warranted here.       Accordingly,

White’s third claim fails.

       White’s fourth and fifth claims challenge subject matter jurisdiction. In

White’s fourth issue, he asserts an arrest warrant does not exist because the

Office of the Clerk of Court’s response to his motion seeking a copy of the

arrest warrant was that “We do not have the records you requested.” See

White’s Brief at 15, and Appendix B.      In White’s fifth issue, he argues the


                                      -6-
J-S59020-17


Commonwealth presented hearsay testimony at the preliminary hearing. No

relief is due.

      The courts of common pleas have statewide jurisdiction in all cases

arising under the Crimes Code. Commonwealth v. Jones, 929 A.2d 205,

210 (Pa. 2007) (citation omitted).         The Commonwealth invokes that

jurisdiction when it files a formal and specific accusation of the crimes

charged.    Id. at 211-212.   The Office of the Clerk of Court’s response to

White’s record request does not establish lack of subject matter jurisdiction.

Furthermore, hearsay testimony is appropriate at the preliminary hearing

stage.     See Pa.R.Crim.P. 542(E) (“Hearsay as provided by law shall be

considered by the issuing authority in determining whether a prima facie case

has been established.”). Therefore, we reject White’s fourth and fifth claims.

      In White’s sixth claim, he contends trial counsel was ineffective for

representing White because counsel had a conflict of interest based on his

representation of Toreyn Tuggle, her daughter, Brittani Tuggle, and White’s

sister, Anitria White.

      In reviewing this ineffectiveness claim,

      [w]e begin our analysis of ineffectiveness claims with the
      presumption that counsel is effective. To prevail on his
      ineffectiveness claims, Appellant must plead and prove, by a
      preponderance of the evidence, three elements: (1) the
      underlying legal claim has arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) Appellant
      suffered prejudice because of counsel’s action or inaction.




                                     -7-
J-S59020-17


Commonwealth v. Spotz, 18 A.3d 244, 259-60 (Pa. 2011) (citations

omitted). Furthermore,

      to establish a conflict of interest, an appellant must show that
      “counsel actively represented conflicting interests[,] and the
      actual conflict adversely affected counsel’s performance.”
      Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 563 (Pa.
      2009) (citing Spotz V, 896 A.2d at 1232); see also
      Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808, 818 (Pa.
      2009) (rejecting the view that counsel’s representation of a client
      continues until such time as the client’s sentence expires, and
      requiring a petitioner who alleges a conflict of interest rooted in
      his counsel’s obligation to a former client to establish that the
      conflict adversely affected counsel’s performance).

Spotz, at 268.

      Here, as the PCRA court noted, Brittani Tuggle did not testify at trial, so

there was no conflict of interest as to her.        See PCRA Court Opinion,

12/16/2016, at 17. Further, with respect to Toreyn Tuggle and Anitria White,

our review leads to the conclusion White has failed to show that counsel

actively represented conflicting interests and that the actual conflict adversely

affected counsel’s performance. As such, White’s sixth claim fails.

      Nevertheless, although the issues raised by White in this appeal are

either waived or meritless, our review of the record reveals the trial court

imposed a mandatory minimum sentence of five to ten years in prison for the

PWID conviction pursuant to 42 Pa.C.S. § 7508(a)(2)(ii). Section 7508 has

been found to be constitutionally infirm in light of the United States Supreme

Court’s June 17, 2013 decision in Alleyne v. United States, 133 S.Ct. 2151,




                                      -8-
J-S59020-17


186 L. Ed. 2d 314 (U.S. 2013).5 See Commonwealth v. Cardwell, 105 A.3d

748 (Pa. Super. 2014); Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa.

Super. 2014).

       It is well settled that we may raise a legality of sentencing issue sua

sponte, so long as there is “a basis for our jurisdiction to engage such review.”

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (holding

appellate court had no jurisdiction to consider Alleyne claim raised in untimely

petition). Here, we have jurisdiction to address the issue of the legality of the

sentence since the PCRA petition is timely.

       The PCRA court opines that the legality of sentencing claim regarding

the mandatory sentence was previously litigated in White’s direct appeal. See

PCRA Court Opinion, 12/16/2016, at 20, 24. In deciding White’s direct appeal

on February 26, 2014, a panel of this Court mentioned Alleyne in a footnote:

       In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147
       L. Ed. 2d 435 (2000), the United States Supreme Court held:
       “[o]ther than the fact of a prior conviction, any fact that increases
       the penalty for a crime beyond the prescribed statutory maximum
       must be submitted to a jury, and proved beyond a reasonable
       doubt.” Apprendi, 530 U.S. at 489. Further, during the pendency
____________________________________________



5 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, supra, 133 S.Ct. at
2155. Applying Alleyne, the courts of this Commonwealth have determined
our mandatory minimum sentencing statutes are unconstitutional where the
language of those statutes “permits the trial court, as opposed to the jury, to
increase a defendant’s minimum sentence based upon a preponderance of the
evidence” standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.
Super. 2014) (en banc).

                                           -9-
J-S59020-17


     of this appeal, the United States Supreme Court decided Alleyne
     v. United States and held that, where an “aggravating fact”
     increases a mandatory minimum sentence, “the fact is an element
     of a distinct and aggravated crime. [The fact] must, therefore, be
     submitted to the jury and found beyond a reasonable doubt.”
     Alleyne v. United States,      U.S. , , 133 S. Ct. 2151, 2162-
     2163, 186 L. Ed. 2d 314 (2013).

     Yet, Alleyne does not render illegal Appellant’s five-year
     mandatory minimum sentence. Indeed, as is relevant to the case
     at bar, Appellant’s five-year mandatory minimum sentence was
     triggered because Appellant was convicted of possession of
     cocaine with the intent to deliver and because: 1) Appellant
     stipulated to the fact that the cocaine weighed 10.53 grams
     (which constitutes “at least ten grams and less than 100 grams”
     of cocaine) and 2) “at the time of sentencing [Appellant had] been
     convicted of another drug trafficking offense.” 18 Pa.C.S.A. §
     7508(a)(2)(ii). Alleyne is thus inapplicable to the case at bar, as
     one of the two “aggravating facts” was stipulated to by Appellant
     and the other “aggravating fact” constituted a prior conviction.

Commonwealth v. White, 97 A.3d 814 [763 EDA 2013] (Pa. Super. 2014)

(unpublished memorandum, at 5 n.2) (emphasis in original).         Therefore,

because White stipulated to the weight of the cocaine, the panel concluded

Alleyne did not apply.

     We recognize the early decisions interpreting Alleyne, “implied that [a

defendant] could legally stipulate to the amount of drugs recovered, and agree

to the imposition of the mandatory minimum sentence under Section 7508.”

Commonwealth v. Rivera, 154 A.3d 370, 379 (Pa. Super. 2017) (en banc).

However, these cases were issued before the impact of Alleyne was clarified

by this Court. As the Rivera Court explained:

     Indeed, it was not until our decision in [Commonwealth v.]
     Newman, [99 A.3d 86, 98 (Pa. Super. 2014)], filed in August of
     2014, that an en banc panel held Pennsylvania’s mandatory

                                    - 10 -
J-S59020-17


      minimum sentencing statutes, which permitted a trial court to
      increase a defendant’s minimum sentence based upon a
      preponderance of the evidence standard, were unconstitutional
      under Alleyne and incapable of severance. After Newman, this
      Court consistently rejected any harmless error analysis that
      attempted to circumvent the plain language of the statutes. See
      Commonwealth v. Valentine, 2014 PA Super 220, 101 A.3d
      801, 811 (Pa. Super. October 3, 2014) (rejecting argument that
      submitting factual prerequisite of mandatory minimum statute to
      the jury would satisfy Alleyne; “[b]y asking the jury to determine
      whether the factual prerequisites ... had been met, the trial court
      effectively determined that the unconstitutional provisions [of the
      statutes] were severable.”), appeal denied, 633 Pa. 749, 124 A.3d
      309 (Pa. 2015); Commonwealth v. Fennell, 2014 PA Super
      261, 105 A.3d 13, 20 (Pa. Super. November 21, 2014) (rejecting
      argument that defendant’s stipulation to amount of drugs
      recovered satisfies mandate of Alleyne; “both Newman and
      Valentine unequivocally state that creating a new procedure in
      an effort to impose a mandatory minimum sentence is solely
      within the province of the legislature.”), appeal denied, 632 Pa.
      691, 121 A.3d 494 (Pa. 2015); Commonwealth v. Wolfe, 2014
      PA Super 288, 106 A.3d 800, 806 (Pa. Super. December 24, 2014)
      (“In our view, Newman abrogated this Court’s decision in
      Matteson.”).

Id. at 378–379.    Therefore, applying Newman, a stipulation regarding the

amount of drugs cannot serve to circumvent Alleyne.

      Turning to the present PCRA appeal, it is significant that the panel that

decided White’s direct appeal in February of 2014 did not have the benefit of

Newman, since Newman was not issued until August 20, 2014.           In light of

Newman, we do not regard White’s mandatory minimum sentencing issue as

“previously litigated.” 42 Pa.C.S. § 9544(a).

      Generally, Alleyne does not apply retroactively to cases on collateral

review.   See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa.

2016). However, this Court has held, in the context of timely collateral review,

                                     - 11 -
J-S59020-17


that Alleyne invalidated a mandatory minimum sentence when petitioner’s

judgment of sentence was pending on direct review at the time Alleyne was

decided. See Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015).

Therefore, because White’s direct appeal was pending when Alleyne was

decided, we conclude White’s mandatory minimum sentence is illegal and that

he is entitled to resentencing.

      Accordingly, the order of the PCRA court is affirmed in part, reversed in

part, and this case is remanded for resentencing.

      Order affirmed in part, reversed in part. Case remanded. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




                                    - 12 -
