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COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                               PENNSYLVANIA
     Appellee

                   v.

BRUCE B. PERSON,

     Appellant                                 No. 3372 EDA 2009


    Appeal from the Judgment of Sentence Entered November 10, 2009
           In the Court of Common Pleas of Philadelphia County
                         Criminal Division at Nos.:
                         CP-51-CR-0004662-2009
                         MC-51-CR-0013515-2009


BEFORE: BENDER, DONOHUE and ALLEN, JJ.

MEMORANDUM BY BENDER, J.:                       FILED OCTOBER 10, 2014

     Appellant, Bruce B. Person, appeals from the judgment of sentence of

a mandatory term of five to ten years’ imprisonment, followed by three

years’ probation, imposed after he was convicted of possession with intent to

deliver (PWID) marijuana, criminal use of a communication instrument,

possession of cocaine, possession of drug paraphernalia, and possession of

an offensive weapon.    Appellant challenges the imposition of a mandatory

minimum term of five years’ imprisonment for his conviction of PWID under

42 Pa.C.S. § 9712.1, as well as the constitutionality of that sentencing

statute. After careful review, we vacate and remand for resentencing.




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      In a prior opinion published by this Court, we summarized the facts of

Appellant’s case as follows:

      On March 23, 2009, Philadelphia Police Officers received a
      complaint that Appellant was selling narcotics out of a home at
      146 North Dearborn Street. The complainant provided a physical
      description of Appellant as well as his cell phone number. Based
      on this information, Officer Gina Jackson set up surveillance of
      the residence at 146 North Dearborn Street on March 24, 2009.
      During her surveillance, Officer Jackson observed Appellant exit
      that home and meet with an unknown man who handed
      Appellant money, after which Appellant gave the man a small
      item. The unknown man then left the area and was not stopped.
      Meanwhile, Appellant reentered the house at 146 North
      Dearborn Street.

      That same day, March 24, 2009, Officer Jackson contacted
      Officer Linwood Fairbanks and requested that he purchase
      narcotics from Appellant in an undercover capacity. Officer
      Fairbanks called Appellant on the cell phone number provided by
      the complainant and inquired about purchasing drugs. He was
      told by Appellant to wait on the 100 block of Dearborn Street.
      Officer Fairbanks went to that location with $20 in United States
      currency. A short time later, Appellant arrived, had a brief
      conversation with Officer Fairbanks, and then went into the
      residence at 146 North Dearborn Street. Appellant quickly
      returned and handed Officer Fairbanks four red-tinted ziplock
      packets of marijuana in exchange for the officer's $20.

      Based on this sale, Officer Jackson obtained a warrant to search
      the home at 146 North Dearborn Street. However, on March 26,
      2009, prior to executing that warrant, Officer Fairbanks again
      called Appellant and arranged a drug transaction. Officer
      Fairbanks returned to the same location of the original drug
      purchase and bought from Appellant an additional five red-tinted
      ziplock packets of marijuana with $20 of pre-recorded United
      States currency. After the drug transaction, Appellant returned
      to the home at 146 North Dearborn Street. Moments later,
      Officer Jackson approached the residence to execute the search
      warrant. When she got to the front door, she heard motion

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     inside and, upon opening the door, she saw Appellant running
     from the living room up the stairs to the second floor of the
     home. Officer Jackson pursued Appellant into a second floor
     bedroom and saw him throw something into a closet. Also
     present in that bedroom were two adult women and a child.

     Appellant was apprehended and the bedroom closet was
     searched, revealing a bag of five red-tinted packets of marijuana
     similar to those purchased by Officer Fairbanks. There were also
     three other packets containing crack cocaine found in the closet.
     From Appellant's person, police recovered the $20 pre-recorded
     currency used by Officer Fairbanks during the second drug
     purchase. Appellant also possessed $159 and a cell phone. A
     search of the rest of the home revealed a digital scale on the
     table in the kitchen, as well as a sawed-off shotgun on top of a
     cabinet in the kitchen. The shotgun was partially covered, but
     was visible from the living room of the home. The gun was later
     determined to be inoperable due to a broken firing pin.

     Based on this evidence, Appellant was charged with the above-
     stated crimes, as well as possessing an instrument of crime
     (PIC). Following a non-jury trial, Appellant was convicted of each
     of these offenses except PIC. However, after his trial, Appellant
     filed a motion for extraordinary relief arguing that his conviction
     for possessing an offensive weapon could not stand, as the
     shotgun found in the home did not meet the definition of an
     “offensive weapon” as set forth in 18 Pa.C.S. § 908(c) (defining
     “offensive weapon” as including a sawed-off shotgun with a
     barrel length of less than 18 inches). Following a hearing, the
     court found that the shotgun did not meet the statutory
     definition of an offensive weapon as its barrel was over 18 inches
     in length. See Trial Court Opinion (T.C.O.), 3/15/11, at 9–10.
     Accordingly, the court granted Appellant's motion for
     extraordinary relief and reversed his conviction for possessing an
     offensive weapon.

     Appellant then proceeded to a sentencing hearing, during which
     the Commonwealth sought the application of a mandatory
     minimum sentence of five years' imprisonment for Appellant's
     conviction of PWID pursuant to 42 Pa.C.S. § 9712.1(a). That
     section states:

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         (a) Mandatory sentence.—Any person who is convicted
         of a violation of section 13(a)(30) of the act of April 14,
         1972 (P.L. 233, No. 64), known as The Controlled
         Substance, Drug, Device and Cosmetic Act, when at the
         time of the offense the person or the person's accomplice
         is in physical possession or control of a firearm, whether
         visible, concealed about the person or the person's
         accomplice or within the actor's or accomplice's reach or in
         close proximity to the controlled substance, shall likewise
         be sentenced to a minimum sentence of at least five years
         of total confinement.

     42 Pa.C.S. § 9712.1(a). The trial court concluded that this
     mandatory minimum term of incarceration was applicable in
     Appellant's case, and sentenced him to five to ten years'
     incarceration for his PWID conviction, followed by three years'
     probation on his other charges.

     Appellant filed a timely notice of appeal, as well as a timely
     concise statement of matters complained of on appeal pursuant
     to Pa.R.A.P.1925(b).

Commonwealth v. Person (Person I), 39 A.3d 302, 303-305 (Pa. Super.

2012).

     In his appeal in Person I, Appellant argued, inter alia, that the

evidence was insufficient to prove that he possessed a firearm in close

proximity to a drug offense and, thus, the imposition of the mandatory

minimum sentence in section 9712.1 was improper. A panel of this Court

agreed, emphasizing that “there was no evidence presented that Appellant

resided at 146 North Dearborn Street, [] he was not the sole adult present in

the home when police arrived[,] … the gun was located in the kitchen, an

area of the home accessible to anyone therein, … [and] Officer Jackson

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testified at trial that she never saw Appellant enter the kitchen where the

shotgun was located.”      Person I, 39 A.3d at 306-307.          Based on these

facts, we were unable to “conclude, even by a preponderance of the

evidence,    that   Appellant   constructively   possessed   or   controlled   the

shotgun.”1    Id. at 307.       Therefore, we vacated Appellant’s mandatory

sentence and remanded for resentencing. Id.

     The Commonwealth filed a timely petition for allowance of appeal to

our Supreme Court.      On March 12, 2014, the Court granted that petition,

vacated our decision in Person I, and remanded for this Court to reconsider

the case in light of Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013)

(discussing at length the meaning of “in close proximity” as it is used in 42

Pa.C.S. § 9712.1).



1
 Section 9712.1(c) sets forth the standard of proof for imposing the
mandatory minimum sentence under that provision, stating:

     (c) Proof at sentencing.--Provisions of this section shall not be
     an element of the crime, and notice thereof 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 any evidence presented at trial and shall
     afford the Commonwealth and the defendant an opportunity to
     present any necessary additional evidence and shall determine,
     by a preponderance of the evidence, if this section is
     applicable.

42 Pa.C.S. § 9712.1(c) (emphasis added).


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      On April 14, 2014, we issued an order directing Appellant and the

Commonwealth to submit new appellate briefs discussing the applicability of

Hanson.    However, we also directed the parties to address the impact of

Alleyne v. U.S., 133 S.Ct. 2151 (2013), which was decided on June 17,

2013. In Alleyne, the United States Supreme Court held that any fact that

serves to aggravate the minimum sentence must be found by the fact-finder

beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2160-2161.

      On September 8, 2014, Appellant filed his revised brief with this Court,

presenting the following three claims for our review:

      1. Was not the mandatory minimum sentence of 5 years[’]
      incarceration imposed pursuant to 42 Pa.C.S. § 9712.1 illegal as
      the facts necessary for the imposition of the mandatory
      minimum in this non-jury matter were not established beyond a
      reasonable doubt as mandated by Alleyne?

      2. Is not 42 Pa.C.S. § 9712.1 unconstitutional, void and
      unenforceable where multiple procedural provisions within the
      statute are unconstitutional under the holding in Alleyne and
      cannot properly be severed from the remaining statute pursuant
      to Commonwealth v. Newman, [2014 WL 4088805, 2014 Pa.
      Super. 178 (2014)] (en banc), decided August 20, 2014?

      3. Was not the evidence insufficient, as a matter of law, to prove
      that [A]ppellant was in “physical possession or control” of the
      weapon at issue, thereby making the mandatory sentencing
      provisions of 42 Pa.C.S. § 9712.1 for certain drug offenses
      inapplicable?

Appellant’s Brief at 3.




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         For the reasons that follow, we need only address Appellant’s second

issue.    As Appellant points out, in this Court’s recent en banc decision in

Newman, we held that “the sentencing practice under Section 9712.1 is

unconstitutional” in light of Alleyne.2       Newman, 2014 WL 4088805 at *1,

*10. We also rejected the Commonwealth’s argument “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.” Id. at *13. Instead, we held that

“Subsections (a) and (c) of Section 9712.1 are essentially and inseparably

connected” and, therefore, the unconstitutional portion of the statute could

not be severed from the rest. Id.

         In light of Newman, it is clear that section 9712.1 is unconstitutional

and,      thus,   Appellant’s   mandatory      minimum   sentence   is   illegal.3

2
  We note that because both Alleyne and Newman were decided during the
pendency of Appellant’s direct appeal, they apply retroactively to his case.
See Newman, 2014 WL 4088805, at *2 (noting the United States Supreme
Court’s holding that “[w]hen a decision of this Court results in a ‘new rule,’
that rule applies to all criminal case still pending on direct review”) (quoting
Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citation omitted)).
Moreover, Appellant’s issues implicate the legality of his sentence, and
“challenges to ‘[a]n illegal sentence can never be waived and may be raised
sua sponte by this Court.’” Commonwealth v. Randal, 837 A.2d 1211,
1214 (Pa. Super. 2003).
3
   We point out that even if Newman did not render section 9712.1
unconstitutional, Appellant’s sentence would still be illegal under Alleyne, as
it is apparent from the record that the fact that triggered application of
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Consequently, we vacate his judgment of sentence and remand for the re-

imposition of a sentence without consideration of any mandatory minimum

term provided by section 9712.1.   See Newman, 2014     WL 4088805 at

*15.

       Judgment of sentence vacated.   Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




section 9712.1 was determined by a preponderance of the evidence at the
time of Appellant’s sentencing.
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