J. E01002/14

                             2014 PA Super 178

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
JAMES NEWMAN,                           :         No. 1980 EDA 2012
                                        :
                        Appellant       :


           Appeal from the Judgment of Sentence, June 13, 2012,
            in the Court of Common Pleas of Montgomery County
              Criminal Division at No. CP-46-CR-0000068-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
        DONOHUE, ALLEN, LAZARUS, MUNDY, AND OLSON, JJ.


OPINION BY FORD ELLIOTT, P.J.E.:FILED AUGUST 20, 2014

      Appellant brings this appeal challenging the constitutionality of one of



§                                                                 Alleyne v.

United States,       U.S.     , 133 S.Ct. 2151 (2013). We find that Alleyne

does indicate that the sentencing practice under Section 9712.1 is



sentence and remand for resentencing.

      Following controlled drug buys involving appellant at Apartment No. 2

of the Station Avenue apartment complex in Glenside, police executed a

search warrant at that residence. Police discovered a large quantity of crack

cocaine, drug paraphernalia in the form of plastic baggies and digital scales,
J. E01002/14

and a handgun and bullets under a mattress in a bedroom. The bedroom

was located across a hallway from a bathroom where over 60 grams of

cocaine were found in the toilet.       The distance between the gun and the

cocaine    was   approximately    six   to    eight   feet.    Appellant   and   his

co-conspirators were arrested and brought to trial.

        On February 14, 2012, a jury convicted appellant of two counts of



possession (cocaine), one count of possession of drug paraphernalia, one

count of dealing in proceeds of unlawful activities, one count of possessing

an instrument of crime, and five counts of criminal conspiracy. 1                On

February 23, 2012, the Commonwealth filed a Notice of Intent to Seek

Mandatory Sentence under Section 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.      On June 13, 2012, the trial court sentenced



of th

imprisonment on one of the conspiracy convictions.            On July 3, 2012, the



        Appellant appealed his conviction to this court. This court affirmed the

judgment of sentence on June 12, 2013. On June 17, 2013, just five days

later, the United States Supreme Court issued its opinion in Alleyne.            On




                                        -2-
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June   25,   2013,   appellant   filed   with   this   court   an   application   for

reconsideration/reargument which we granted for en banc reargument. We

now address those issues raised upon reargument:

             I.     WHAT IS THE APPLICABILITY OF THE UNITED

                    ALLEYNE V. UNITED STATES,     U.S.   ,
                    133 S.CT. 2151 (2013), AND DOES THE
                    DECISION RENDER 42 PA.C.S. § 9712.1,
                    UNCONSTITUTIONAL    IN    THAT     THE
                    MANDATORY MINIMUM STATUTE ALLOWS THE
                    TRIAL JUDGE TO DETERMINE WHETHER THE
                    EVIDENCE TRIGGERS THE APPLICATION OF
                    THE   MANDATORY   MINIMUM   SENTENCE,

                    AMENDMENT RIGHTS PURSUANT TO THE
                    UNITED  STATES  CONSTITUTION, AND

                    PURSUANT TO ARTICLE I, SECTION IX, OF THE
                    PENNSYLVANIA    CONSTITUTION       WHICH
                    GUARANTEE THE APPELLANT TO A TRIAL BY
                    JURY AND A DETERMINATION OF GUILT
                    BEYOND A REASONABLE DOUBT BY THAT
                    JURY?

             II.    DOES ALLEYNE V. UNITED STATES,     U.S.
                       ,  133  S.CT.  2151   (2013), APPLY
                    RETROACTIVELY TO THE INSTANT MATTER, IN
                    THAT THIS CASE WAS DECIDED BY THE
                    SUPERIOR COURT ON JUNE 12, 2013,
                    ALLEYNE WAS DECIDED JUNE 17, 2013, BUT
                    APPELLANT FILED A TIMELY REQUEST FOR
                    REARGUMENT AND RECONSIDERATION, AND

                    IS NOT FINAL?

             III.   HAS THE CONTROLLING OR DIRECT RELEVANT
                    AUTHORITY RELIED UPON BY THE COURT


1
  35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32); 18 Pa.C.S.A. §§ 5111,
907(a), and 903(a)(1), respectively.


                                         -3-
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                 BEEN EXPRESSLY REVERSED, MODIFIED,
                 OVERRULED OR OTHERWISE MATERIALLY
                 AFFECTED DURING THE PENDENCY OF THE
                 MATTER SUB JUDICE, WITH NO NOTICE GIVEN
                 TO THE COURT PURSUANT TO PA.R.A.P.
                 2501(B)?




retroactive application of Alleyne                                 Alleyne



are moot.   We note in passing that the Commonwealth does not contend

that Alleyne does not apply retroactively to appellant, and we now find that

Allyene does apply retroactively.




                              Schriro v. Summerlin, 542 U.S. 348, 351

(2004), citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Although



Alleyne was announced, we retain jurisdiction for 30 days thereafter, to

modify or rescind our holding, or grant reargument as we have here, so long

as the appellant does not seek allowance of appeal before our supreme

court. See 42 Pa.C.S.A. § 5505. Moreover, our decision does not become

final until 30 days have elapsed and the time for filing a petition for

allowance of appeal with our supreme court expires.         See Pa.R.A.P.,

Rule


                                     -4-
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direct appeal when Alleyne was handed down, and the decision may be

                           se retroactively.2   However, there is a further

complication that must be addressed before Alleyne may be considered.

      To be entitled to the retroactive application of a new constitutional

rule, a defendant must have raised and preserved the issue in the court

below:

            [W]here an appellate decision overrules prior law
            and announces a new principle, unless the decision
            specifically declares the ruling to be prospective only,
            the new rule is to be applied retroactively to cases
            where the issue in question is properly preserved at
            all stages of adjudication up to and including any
            direct appeal.

Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983) (emphasis

added).

      While appellant challenged his mandatory minimum sentence under

Section 9712.1 on direct appeal, his issue was not based upon Alleyne or

upon a similar theory.      Nonetheless, appellant is still entitled to the

retroactive application of Alleyne.

      In Commonwealth v. Roney, 866 A.2d 351 (Pa. 2005), cert.

denied, Roney v. Pennsylvania, 546 U.S. 860 (2005), our supreme court

reviewed the application of Apprendi v. New Jersey, 530 U.S. 466 (2000),

                                   Apprendi or a similar theory had not been



2
  The Commonwealth concedes that appellant
direct appeal. (Commonwealth brief at 8.)


                                      -5-
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preserved below.3

premised upon Apprendi implicates the legality of that sentence, it cannot

                          Roney, 866 at 359, n.32. Thus, our supreme court

went on to examine Apprendi

that a challenge to a sentence premised upon Alleyne likewise implicates

the legality of the sentence and cannot be waived on appeal. Therefore, we

find that Alleyne may be applied retroactively to appellant.4 We now turn



Section 9712.1 unconstitutional under Alleyne.

        We begin by noting the provisions of Section 9712.1 at issue:

              § 9712.1. Sentences for certain drug offenses
              committed with firearms

              (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),
                    [FN1] known as The Controlled Substance,
                    Drug, Device and Cosmetic Act, when at the

                    accomplice is in physical possession or control
                    of a firearm, whether visible, concealed about


                    proximity to the controlled substance, shall
                    likewise be sentenced to a minimum sentence
                    of at least five years of total confinement.


3
    Apprendi will be discussed infra.
4
  Although not directly on point, another en banc panel of this court has
applied Alleyne retroactively. See Commonwealth v. Watley, 81 A.3d
108 (Pa.Super. 2013) (en banc), appeal denied,       A.3d     , 1033 MAL
(Pa. 2014).


                                        -6-
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           (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

                   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.A. § 9712.1 (in pertinent part).

     Under the sentencing scheme of Section 9712.1, possession of a

firearm is considered a sentencing factor to be determined by the trial court

upon a preponderance of the evidence, and not an element of the underlying

crime to be determined by the jury beyond a reasonable doubt. This sort of

sentencing scheme was deemed constitutional under a prior ruling of the

United States Supreme Court.

     In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the United States

Supreme    Court    reviewed    the   constitutionality   of   another   one   of



§ 9712,

imprisonment for the visible possession of a firearm during the commission

of certain specified crimes of violence.    Like Section 9712.1, Section 9712

provided that the visible possession was not an element of the crime, but



                                      -7-
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was a sentencing factor to be determined by the trial court upon a

preponderance of the evidence. The McMillan court ruled that a state could

make visible possession of a firearm a sentencing factor rather than an

element of the underlying crime, and that the sentencing factor could be

proven by merely a preponderance of the evidence:

                 The Commonwealth appealed all four cases
           [involving Section 9712] to the Supreme Court of
           Pennsylvania. That court consolidated the appeals
           and unanimously concluded that the Act is consistent
           with due process. Commonwealth v. Wright, 508

           argument was that visible possession of a firearm is
           an element of the crimes for which they were being
           sentenced and thus must be proved beyond a
           reasonable doubt under In re Winship, 397 U.S.
           358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and
           Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881,
           44 L.Ed.2d 508 (1975). After observing that the
           legislature had expressly provided that visible

           § 9712(b), and that the reasonable-doubt standard


           at 359, quoting Patterson v. New York, 432 U.S.
           197, 211, n. 12, 97 S.Ct. 2319, 2327, n. 12, 53
           L.Ed.2d 281 (1977), the court rejected the claim that
           the Act effectively creates a new set of upgraded

           Section 9712, which comes into play only after the
           defendant has been convicted of an enumerated
           felony, neither provides for an increase in the
           maximum sentence for such felony nor authorizes a
           separate sentence; it merely requires a minimum
           sentence of five years, which may be more or less
           than the minimum sentence that might otherwise
           have been imposed. And consistent with Winship,
           Mullaney, and Patterson
           presumption as to any essential fact and places no



                                   -8-
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          the p
          Pa., at 35, 494 A.2d, at 359.

          ....

                Petitioners argue that under the Due Process
          Clause as interpreted in Winship and Mullaney, if a
          State wants to punish visible possession of a firearm
          it must undertake the burden of proving that fact
          beyond a reasonable doubt. We disagree. Winship

          accused against conviction except upon proof beyond
          a reasonable doubt of every fact necessary to
          constitute the crime with
          U.S., at 364, 90 S.Ct., at 1073. In Mullaney v.
          Wilbur, we held that the Due Process Clause

          reasonable doubt the absence of the heat of passion
          on sudden provocation when the issue is properly

          S.Ct., at 1892.   But in Patterson, we rejected the


                                                      t beyond
          a reasonable doubt. 432 U.S., at 214, 97 S.Ct., at
          2329; see also id., at 207, 97 S.Ct., at 2325 (State

          fact, the existence or nonexistence of which it is
          willing to recognize as an exculpatory or mitigating
          circumstance affecting the degree of culpability or


          law placing on defendants charged with murder the
          burden of proving the affirmative defense of extreme
          emotional disturbance.

                Patterson stressed that in determining what
          facts must be proved beyond a reasonable doubt the


          Clause requires the prosecution to prove beyond a
          reasonable doubt all of the elements included in the
          definition of the offense of which the defendant is



                                  -9-
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                      Id., at 210, 97 S.Ct., at 2327 (emphasis
           added).

           ....

                  We believe that the present case is controlled
           by Patterson, our most recent pronouncement on
           this subject, rather than by Mullaney.        As the
           Supreme Court of Pennsylvania observed, the
           Pennsylvania Legislature has expressly provided that
           visible possession of a firearm is not an element of
           the crimes enumerated in the mandatory sentencing
           statute, § 9712(b), but instead is a sentencing factor
           that comes into play only after the defendant has
           been found guilty of one of those crimes beyond a
           reasonable doubt.     Indeed, the elements of the
           enumerated offenses, like the maximum permissible
           penalties for those offenses, were established long
           before the Mandatory Minimum Sentencing Act was
           passed. While visible possession might well have
           been included as an element of the enumerated
           offenses, Pennsylvania chose not to redefine those
           offenses in order to so include it, and Patterson
           teaches that we should hesitate to conclude that due
           process bars the State from pursuing its chosen
           course in the area of defining crimes and prescribing
           penalties.

McMillan, 477 U.S. at 83-86 (footnote omitted).

     It was clear, however, that the McMillan decision was influenced by



minimum sentence and not the maximum:

                 The Court in Mullaney observed, with respect
           to the main criminal statute invalidated in that case,
           that once the State proved the elements which Maine
           required it to prove beyond a reasonable doubt the

           from a nominal fine to a mandatory life
           421 U.S., at 700, 95 S.Ct., at 1890. In the present
           case the situation is quite different. Of the offenses


                                   - 10 -
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           enumerated in the Act, third-degree murder, robbery
           as defined in 18 Pa.Cons.Stat. § 3701(a)(1) (1982),
           kidnaping, rape, and involuntary deviate sexual
           intercourse are first-degree felonies subjecting the

           § 1103(1). Voluntary manslaughter and aggravated
           assault as defined in § 2702(a)(1) are felonies of the
           second degree carrying a maximum sentence of
           10 years. § 1103(2). Section 9712 neither alters
           the maximum penalty for the crime committed nor
           creates a separate offense calling for a separate
           penalty; it operates solely to limit the sentencing
                                                   ty within the
           range already available to it without the special
           finding of visible possession of a firearm.
           Section
           by raising to five years the minimum sentence which
           may be imposed within the statutory plan. The
           statute gives no impression of having been tailored
           to permit the visible possession finding to be a tail
           which wags the dog of the substantive offense.

                                                             the
           offenses for which they are being punished that
           Pennsylvania has in effect defined a new set of
           upgraded felonies would have at least more
           superficial appeal if a finding of visible possession
           exposed them to greater or additional punishment,
           cf. 18 U.S.C. § 2113(d) (providing separate and
           greater punishment for bank robberies accomplished

           it does not.

McMillan, 477 U.S. at 87-88 (footnote omitted).

     Fourteen years after handing down McMillan, the United States

Supreme Court decided that the precepts of McMillan did not apply to

mandatory sentencing schemes that affected the maximum sentence.       In

Apprendi v. New Jersey, the petitioner fired several shots into the home

of an African-American family, who had recently moved into the previously


                                   - 11 -
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all-white neighborhood.   The petitioner thereafter made a statement

indicating that his motivation had been racially based.     At the time,

New

affected the maximum sentence.   The petitioner eventually pleaded guilty,

and after a separate sentencing hearing, the trial court determined by a



motivated and that the hate crime enhancement applied.           After the

New Jersey Supreme Court affirmed, the United States Supreme Court

granted certiorari.

      The Apprendi court found that sentencing enhancements that affect

the maximum sentence must be determined by a jury beyond a reasonable

doubt:

           The question whether Apprendi had a constitutional
           right to have a jury find such [racial] bias on the
           basis of proof beyond a reasonable doubt is starkly
           presented.

                 Our answer to that question was foreshadowed
           by our opinion in Jones v. United States, 526 U.S.
           227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999),
           construing a federal statute. We there noted that

           Amendment and the notice and jury trial guarantees
           of the Sixth Amendment, any fact (other than prior
           conviction) that increases the maximum penalty for
           a crime must be charged in an indictment, submitted

           Id., at 243, n. 6, 119 S.Ct. 1215. The Fourteenth
           Amendment commands the same answer in this case
           involving a state statute.

           ....


                                 - 12 -
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                  In sum, our reexamination of our cases in this
            area, and of the history upon which they rely,
            confirms the opinion that we expressed in Jones.
            Other 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. With
            that exception, we endorse the statement of the rule
            set forth in the concurring opinions in that case:
                                               slature to remove
            from the jury the assessment of facts that increase
            the prescribed range of penalties to which a criminal
            defendant is exposed. It is equally clear that such
            facts must be established by proof beyond a


Apprendi, 530 U.S. at 475-476, 490.

      The Apprendi court specifically disavowed that it was overruling

McMillan, but limited McMillan to cases that do not involve the imposition

of a sentence more severe than the statutory maximum.        Apprendi, 530

U.S. at 487, n.13. Moreover, the Apprendi court clearly explained that it



constitutionally afoul:

            That point applies as well to the constitutionally

                                     McMillan, 477 U.S., at 86,
            106 S.Ct. 2411 (noting that the sentencing factor-
            visible possession of a firearm-
            included as an element of the enumerated

                              e of the factor here, the relevant
            inquiry is one not of form, but of effect -- does the
            required finding expose the defendant to a greater

            verdict? [FN19]



                                   - 13 -
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                 [FN19]   This is not to suggest that the

                 meaning.       The term appropriately
                 describes a circumstance, which may be
                 either aggravating or mitigating in
                 character, that supports a specific
                 sentence within the range authorized by

                 guilty of a particular offense.    On the


                 increase     beyond     the    maximum
                 authorized statutory sentence, it is the
                 functional equivalent of an element of a
                 greater offense than the one covered by

                 squarely within the usual definition of an
                                             See post, at
                 2368-2369 (THOMAS, J., concurring)
                 (reviewing the relevant authorities).

          ....

                 The preceding discussion should make clear
                                             McMillan is likewise
          misplaced.     The differential in sentence between
          what Apprendi would have received without the
          finding of biased purpose and what he could receive
          with it is not, it is true, as extreme as the difference
          between a small fine and mandatory life
          imprisonment. Mullaney, 421 U.S., at 700, 95 S.Ct.
          1881. But it can hardly be said that the potential
                                         -from 10 years to 20-has
          no more than a nominal effect. Both in terms of
          absolute years behind bars, and because of the more
          severe stigma attached, the differential here is
          unquestionably of constitutional significance. When

          the evidence authorizes an increase in the maximum
          punishment

          McMillan, 477 U.S., at 88, 106 S.Ct. 2411.




                                   - 14 -
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Apprendi, 530 U.S. at 494, 495.5

     Following Apprendi, the United States Supreme Court made a notable

attempt to harmonize Apprendi and McMillan.           In Harris v. United

States, 536 U.S. 545 (2002), the Court reviewed a federal statute that

operated much like the one in McMillan, providing greater and greater

minimum sentences if, during a crime involving violence or drug trafficking,

the actor possessed a firearm, brandished the firearm, or discharged the



preponderance of the evidence, that the petitioner had brandished a firearm

and increased his minimum sentence accordingly.

     The Harris court first observed that the federal statute does not

indicate whether brandishing a firearm is an element of the underlying

offense or whether it is merely a sentencing factor, but that it would appear




5
  Apprendi has hitherto found little application in Pennsylvania because of
the indeterminate sentencing scheme used here:


           scheme, with its guidelines and suggested minimum

           in its nature. Commonwealth v. Yuhasz, 592 Pa.
           120, 923 A.2d 1111, 1117 (2007). Therefore, in
           Pennsylvania, a sentence imposed for a given
           conviction does not implicate Apprendi concerns
           unless that sentence exceeds the applicable
           statutory maximum.

Commonwealth v. Gordon, 942 A.2d 174, 182 (Pa. 2007), cert. denied,
Gordon v. Pennsylvania, 553 U.S. 1024 (2008).


                                   - 15 -
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to be the latter. Harris, 536 U.S. at 552. In finding that McMillan was still

sound, the Harris court went on to distinguish McMillan and Apprendi:

                  Confident that the statute does just what
           McMillan
           argument that § 924(c)(1)(A)(ii) is unconstitutional
           because McMillan is no longer sound authority.
           Stare decisis
           Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,
           405, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis,
           J., dissenting), but the doctr
                                              Welch v. Texas
           Dept. of Highways and Public Transp., 483 U.S.
           468, 494, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987).
           Even in constitutional cases, in which stare decisis
           concerns are less pronounced, we will not overrule a
                                                       Arizona
           v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81
           L.Ed.2d 164 (1984).

                 The special justification petitioner offers is our
           decision in Apprendi, which, he says, cannot be
           reconciled with McMillan. Cf. Ring v. Arizona, 536
           U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)
           (overruling Walton v. Arizona, 497 U.S. 639, 110
           S.Ct. 3047, 111 L.Ed.2d 511 (1990), because
            Walton and Apprendi
           not find the argument convincing.         As we shall
           explain, McMillan and Apprendi are consistent
           because there is a fundamental distinction between
           the factual findings that were at issue in those two
           cases. Apprendi said that any fact extending the
                                                                um

           considered an element of an aggravated crime-and
           thus the domain of the jury-by those who framed the
           Bill of Rights. The same cannot be said of a fact
           increasing the mandatory minimum (but not
           extending the sentence beyond the statutory

           judge to impose the minimum with or without the
           finding. As McMillan recognized, a statute may



                                    - 16 -
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           reserve this type of factual finding for the judge
           without violating the Constitution.

Harris, 536 U.S. at 556-557 (plurality).

     As noted, on June 17, 2013, the United States Supreme Court

announced its decision in Alleyne v. United States.        The petitioner in

Alleyne was challenging the same federal sentence enhancing statute as in

Harris.   The petitioner and an accomplice robbed a bank manager at

gunpoint. The jury convicted the petitioner and indicated on the verdict slip

that he had possessed a firearm during a crime of violence, but did not

indicate that he had brandished the weapon. Nonetheless, the District Court

found by a preponderance of the evidence that the petitioner had, in fact,

brandished the firearm, and increased the minimum sentence accordingly.

The Court of Appeals affirmed, citing Harris.

     The Alleyne court directly overruled Harris, and by implication,

McMillan also. The Alleyne court found no basis for distinguishing between

the floor and the ceiling of the sentencing range and found that raising the

floor aggravated the sentence that was imposed just as raising the ceiling

did, and that, therefore, any fact that served to aggravate the minimum

sentence must be found by a jury beyond a reasonable doubt:

                Consistent with common-law and early
           American practice, Apprendi concluded that any
                            e the prescribed range of penalties

           elements of the crime. Id., at 490, 120 S.Ct. 2348
           (internal quotation marks omitted); id., at 483,
           n.


                                   - 17 -
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          defendant to a punishment greater than that
          otherwise legally prescribed were by definition

          that the Sixth Amendment provides defendants with
          the right to have a jury find those facts beyond a
          reasonable doubt. Id., at 484, 120 S.Ct. 2348.
          While Harris limited Apprendi to facts increasing
          the statutory maximum, the principle applied in
          Apprendi applies with equal force to facts increasing
          the mandatory minimum.

                It is indisputable that a fact triggering a
          mandatory minimum alters the prescribed range of
          sentences to which a criminal defendant is exposed.
          Apprendi, supra, at 490, 120 S.Ct. 2348; Harris,
          536 U.S., at 575, 582, 122 S.Ct. 2406 (THOMAS, J.,
          dissenting). But for a finding of brandishing, the
          penalty is five years to life in prison; with a finding of
          brandishing, the penalty becomes seven years to life.
          Just as the maximum of life marks the outer
          boundary of the range, so seven years marks its
          floor. And because the legally prescribed range is
          the penalty affixed to the crime, infra, this page, it
          follows that a fact increasing either end of the range
          produces a new penalty and constitutes an
          ingredient of the offense. Apprendi, supra, at 501,
          120 S.Ct. 2348 (THOMAS, J., concurring); see also
          Bishop § 598, at 360 361 (
          particular punishment to be inflicted on those who
          commit it under special circumstances which it

          those special circumstances must be specified in the
          indictment (emphasis added)); 1 F. Wharton,
          Criminal Law § 371, p. 291 (rev. 7th ed. 1874)
          (similar).

                It is impossible to dissociate the floor of a
          sentencing range from the penalty affixed to the
          crime. See Harris, supra, at 569, 122 S.Ct. 2406
          (BREYER, J., concurring in part and concurring in
          judgment) (facts increasing the minimum and facts


          specified both the floor and ceiling of sentence


                                   - 18 -
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           ranges, which is evidence that both define the legally
           prescribed penalty. See, e.g., supra, at 2158
           2159; N.Y. Penal Code §§ 231 232, p. 70 (1882)
           (punishment for first-degree robbery was 10 to
           20                                -degree robbery was
           5 to 15 years); Va.Code ch. 192, §§ 1 2, p. 787
           (2d ed. 1860) (arson committed at night was
           punishable by 5 to 10 years; arson committed during
           the day was 3 to 10 years). This historical practice
           allowed those who violated the law to know,
           ex ante, the contours of the penalty that the
           legislature affixed to the crime and comports with
           the obvious truth that the floor of a mandatory range
           is as relevant to wrongdoers as the ceiling. A fact
           that increases a sentencing floor, thus, forms an
           essential ingredient of the offense.

                 Moreover, it is impossible to dispute that facts
           increasing the legally prescribed floor aggravate the
           punishment. Harris, supra, at 579, 122 S.Ct. 2406
           (THOMAS, J., dissenting); [United States v.]
                   , 560 U.S. [218], at         , 130 S.Ct. 2169
           (THOMAS, J., concurring in judgment). Elevating the
           low-end of a sentencing range heightens the loss of



           empowered, by invoking the mandatory minimum, to
           require the judge to impose a higher punishment
                                Apprendi, supra, at 522, 120
           S.Ct. 2348 (THOMAS, J., concurring). Why else
           would Congress link an increased mandatory
           minimum to a particular aggravating fact other than
           to heighten the consequences for that behavior?
           See McMillan, 477 U.S., at 88, 89, 106 S.Ct. 2411

                                              Harris, supra, at
           580, 122 S.Ct. 2406 (THOMAS, J., dissenting). This
           reality demonstrates that the core crime and the fact
           triggering the mandatory minimum sentence
           together constitute a new, aggravated crime, each
           element of which must be submitted to the jury.

Alleyne, 133 S.Ct. at 2160-2161 (underlining emphasis added).


                                   - 19 -
J. E01002/14

      Thus, in Alleyne, the United States Supreme Court finally repudiated

the   Apprendi    and   McMillan   maximum   sentence/minimum     sentence

dichotomy.     Plainly, Section 9712.1 can no longer pass constitutional

muster.   It permits the trial court, as opposed to the jury, to increase a



that the defendant was dealing drugs and possessed a firearm, or that a

firearm was in close proximity to the drugs. Under Alleyne, the possession

of the firearm 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 increase in the minimum sentence. As that is not the case instantly, we

                                                       nd for resentencing

without regard for any mandatory minimum sentence prescribed by

Section 9712.1.

      The Commonwealth puts forward two arguments in response to



resentenced without regard to Section 9712.1.     First the Commonwealth

argues that the United States Supreme Court has indicated that Apprendi

based claims (and by implication, Alleyne based claims also) are subject to




                                   - 20 -
J. E01002/14

harmless error analysis.6    See Washington v. Recuenco, 548 U.S. 212,

218-222 (2006), adopting the harmless error standard of Neder v. United

States, 527 U.S. 1 (1999).

     In Neder, the trial court omitted from its jury instructions an element

of the crime of which the petitioner was charged and convicted:

                 Neder was indicted on, among other things,
           9 counts of mail fraud, in violation of 18 U.S.C.
           § 1341; 9 counts of wire fraud, in violation of
           § 1343; 12 counts of bank fraud, in violation of
           § 1344; and 2 counts of filing a false income tax
           return, in violation of 26 U.S.C. § 7206(1). The
           fraud counts charged Neder with devising and
           executing various schemes to defraud lenders in
           connection    with   the   land     acquisition  and
           development loans, totaling over $40 million. The
           tax counts charged Neder with filing false statements
           of income on his tax returns. According to the

6
                                                 Pennsylvania, reflects the

Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994);
Commonwealth v. Story, 383 A.2d 155 (Pa. 1978). We have described
the proper analysis as follows:

           Harmless error exists if the record demonstrates
           either: (1) the error did not prejudice the defendant
           or the prejudice was de minimis; or (2) the
           erroneously    admitted    evidence     was    merely
           cumulative of other untainted evidence which was
           substantially similar to the erroneously admitted
           evidence; or (3) the properly admitted and
           uncontradicted    evidence     of   guilt   was    so
           overwhelming and the prejudicial effect of the error
           was so insignificant by comparison that the error
           could not have contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671-672 (Pa. 2014), quoting, in
part, Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997), cert.
denied, Hawkins v. Pennsylvania, 523 U.S. 1083 (1998).


                                   - 21 -
J. E01002/14

           Government, Neder failed to report more than
           $1 million in income for 1985 and more than
           $4 million in income for 1986, both amounts
           reflecting profits Neder obtained from the fraudulent
           real estate loans.

                 In     accordance    with    then-extant   Circuit

           Court instructed the jury that, to convict on the tax


           used in th

                                       Ibid. The court gave a
           similar instruction on bank fraud, id., at 249, and
           subsequently found, outside the presence of the
           jury, that the evidence established the materiality of
           all the false statements at issue, id., at 167. In
           instructing the jury on mail fraud and wire fraud, the
           District Court did not include materiality as an
           element of either offense. Id., at 253 255. Neder
           again objected to the instruction. The jury convicted
           Neder of the fraud and tax offenses, and he was

           supervised release, and $25 million in restitution.

Neder, 527 U.S. at 6.

     The Neder court first decided that a harmless error analysis was

appropriate in most constitutional contexts.     Neder, 527 U.S. at 8.   The

Neder court then found that the failure to instruct the jury was harmless

because the evidence establishing materiality was overwhelming:

                 At trial, the Government introduced evidence
           that Neder failed to report over $5 million in income
           from the loans he obtained. The failure to report
           such substantial income incontrovertibly establishes

           determination of his income tax liability.     The
           evidence    supporting     materiality  was     so
           overwhelming, in fact, that Neder did not argue to


                                     - 22 -
J. E01002/14

           the jury and does not argue here that his false
           statements of income could be found immaterial.
           Instead, he defended against the tax charges by
           arguing that the loan proceeds were not income
           because he intended to repay the loans, and that he
           reasonably believed, based on the advice of his
           accountant and lawyer, that he need not report the
           proceeds as income. App. 208 211, 235 (closing
           argument). In this situation, where a reviewing
           court concludes beyond a reasonable doubt that the
           omitted element was uncontested and supported by
           overwhelming evidence, such that the jury verdict
           would have been the same absent the error, the
           erroneous instruction is properly found to be
           harmless. We think it beyond cavil here that the


Neder, 527 U.S. at 16-17.

     Thus, in Neder, the jury made no finding on the element of

materiality, but the instruction error was harmless because if the jury had

been properly instructed, it would have undoubtedly found materiality

because the evidence of materiality was overwhelming.        Instantly, the

mandatory minimum sentence was imposed because, under Section 9712.1,



contraband. Under Alleyne

to be submitted to the jury to make such a finding.     The Commonwealth

argues that under Neder, we may regard the failure here to instruct the jury



was harmless because the evidence that the firearm and the drug



undoubtedly have reached that result.


                                   - 23 -
J. E01002/14

     We cannot find that the error here was harmless, because the



overwhelming.   As previously noted, the drug contraband was found in a

bathroom. The firearm was found under a mattress in a bedroom across the

hallway, and the actual distance between the contraband and the firearm

was six to eight feet. Recently, our supreme court discussed at length the

                                                    n Section 9712.1.    See

Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013), generally.              The

Hanson

imprecise and observed the differing conclusions as to its meaning both

among the courts of this Commonwealth and among the courts of other

jurisdictions. Hanson, 82 A.3d at 1037-1038, and otherwise, generally. If



                                                                  rors would




     The   Commonwealth      also    raises   a   related   argument,   citing

Commonwealth v. Sanes, 955 A.2d 369, 377 (Pa.Super. 2008), appeal

denied, 972 A.2d 521 (Pa. 2009). The Commonwealth contends that the

jury would undoubtedly have found that appellant was in constructive

possession of the firearm and that any Alleyne error was harmless on this

                                                                   nstructive



                                    - 24 -
J. E01002/14

possession of the firearm satisfies the possessory element/sentencing factor

of Section 9712.1 under Sanes.

      Sanes    did    not   hold   that    constructive   possession   satisfies   the

possessory element/sentencing factor of Section 9712.1.           The constructive

possession analysis in Sanes pertained to a weapon offense, 18 Pa.C.S.A.

§ 6105, of which the appellant was also convicted.           In point of fact, as to

Section 9712.1, Sanes held that because there was no evidence that the

appellant was in actual physical possession or control of a firearm, or that a

firearm was within reach, the Commonwealth had to show that the firearm

was in close proximity to the drug contraband. Sanes then found that the

items were in close proximity.7 Sanes simply did not hold that constructive

possession of a firearm satisfied the possessory element/sentencing factor of

Section 9712.1.

      On the other hand, the Hanson court analyzed Section 9712.1 at

length in an attempt to determine what constituted possession of a firearm

for purposes of Section 9712.1.           After extensive legal analysis, the court



                     Accordingly, we hold that, for purposes of

           means the knowing exercise of power over a
           weapon, which may be proven through evidence of a
           direct, physical association between the defendant
           and the weapon or evidence of constructive control.
           Constructive control, in this setting, an analogue to

7
  Interestingly, the firearm that was found to be in close proximity to the
drug contraband in Sanes was six to eight feet apart.


                                          - 25 -
J. E01002/14

            constructive possession, entails the ability to
            exercise a conscious dominion and the intent to do
            so.

Hanson, 82 A.3d at 1036-1037.8

      Again, we find that if learned jurists can arrive at the meaning of



extensive analysis, there is no guarantee that a lay jury will undoubtedly

arrive at the same conclusion. This is especially so when operating under

legal constructs like constructive possession, which is foreign to lay persons,

and who may assume that when a statute requires possession it means only

actual possession. Even with instruction from a trial court, we cannot find

that the jury would likely reach the same result. Since we find no guarantee

that a jury would undoubtedly find under the evidence that appellant

possessed the firearm, we cannot find harmless error on this basis either.

      The second argument put forward by the Commonwealth contends

that if we find Section 9712.1 unconstitutional under Alleyne, and that the

error was not harmless, then the proper remedy is to remand for the

empanelling of a sentencing jury for the determination, beyond a reasonable

doubt, as to whether the conditions obtain under the evidence such that a

mandatory minimum sentence should be imposed. Without directly arguing

the


8
  We note that the Hanson court did not address the constitutionality of
Section 9712.1, but remanded for resentencing allowing the trial court to
address the applicability of Alleyne.


                                    - 26 -
J. E01002/14

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. This is also the position taken by Judge

Mundy in her concurring opinion. We respectfully disagree.9

      Pennsylvania law provides for the severing of statutes where one part

of a statute is found unconstitutional:




9
  As noted in dicta in Watley, Section 9712.1 is no longer constitutionally
sound in light of Alleyne. We disagree with the characterization by the
concurrence that Watley noted that only Section 9712.1(c) is
unconstitutional. Concurring Opinion at 3. Watley did not address the
issue of severing Section 9712.1; rather, it merely cataloged various
mandatory minimum sentencing provisions of which Section 9712.1(c)
happens to be one. Watley did not opine that only Section 9712.1(c) is
unconstitutional:

            The Alleyne decision, therefore, renders those
            Pennsylvania     mandatory      minimum    sentencing
            statutes that do not pertain to prior convictions FN3
            constitutionally infirm insofar as they permit a judge

            based on      a   preponderance    of   the   evidence
            standard.4

            4. See e.g., 42 Pa.C.S. § 9712(c); 42 Pa.C.S.
            § 9712.1(c); 42 Pa.C.S. § 9713(c); 42 Pa.C.S.
            § 9718(c); 42 Pa.C.S. § 9719(b); 18 Pa.C.S.
            § 7508(b); 18 Pa.C.S. § 6317(b).

Watley, 81 A.3d at 117 n.4 (footnote 3 omitted).


                                     - 27 -
J. E01002/14

           § 1925. Constitutional construction of statutes

           The provisions of every statute shall be severable. If
           any provision of any statute or the application
           thereof to any person or circumstance is held invalid,
           the remainder of the statute, and the application of
           such provision to other persons or circumstances,
           shall not be affected thereby, unless the court finds
           that the valid provisions of the statute are so
           essentially and inseparably connected with, and so
           depend upon, the void provision or application, that
           it cannot be presumed the General Assembly would
           have enacted the remaining valid provisions without
           the void one; or unless the court finds that the
           remaining valid provisions, standing alone, are
           incomplete and are incapable of being executed in
           accordance with the legislative intent.

1 Pa.C.S.A. § 1925.

     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

Subsection (c), there is no mechanism in place to determine whether the

predicate of Subsection (a) has been met.

                                                                         g 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



                                    - 28 -
J. E01002/14

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 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.

      Finally, we note that Alleyne and the possibility of severance of

Section 9712.1 have arisen in several of our courts of common pleas.10

Although we are not bound by those decisions, we find a review of their

analyses salutary:

            Moving forward, the Commonwealth proposes that

            of a firearm in connection with his alleged drug
            offense be submitted on the verdict slip as a special
            question for the jury.

                   Undoubtedly, the legislature intended to give
            defendants who possess firearms in connection with
            their drug offenses harsher penalties. However, the
            legislature also intended those penalties to be
            imposed according to a very specific procedure -- the
            issue of firearm possession must be decided by the
            judge, at sentencing, by a preponderance of the
            evidence. The Commonwealth asks the Court to
            have the issue of firearm possession decided by a
            jury, at trial, beyond a reasonable doubt.

10
   Under these cases, severing Section 9712.1 has been found to be
unworkable and the section has been ruled unconstitutional in its entirety.
These cases are currently before the supreme court on direct review.


                                     - 29 -
J. E01002/14



                The Court recognizes the difficulty Alleyne has
          caused and the creative solution the Commonwealth
          offers in response. However, we find that the valid
          provisions of § 9712.1 are so essentially and
          inseparably     connected with       § 9712.1(c) that
          severance is not possible.        If the Court severs
          § 9712.1(c), we are left without a method of finding
          the facts necessary to apply the mandatory minimum
          sentence. Right now, the Court can only impose
          §
          using an unconstitutional procedure. At best, the
                                   ion would have the court
          arbitrarily pick which legislative directives to follow
          while ignoring others. At worst, the Commonwealth
          asks the Court to essentially rewrite the statute and
          replace the unconstitutional procedure with a
          procedure that has not been legislatively or
          specifically judicially directed.    It is clearly the
          province of the legislature, not this Court, to make
          such procedural determinations.

Commonwealth v. Shifler, No. CP-28-CR-0000263-2013, entered April 21,

2014, slip. op. at 16-17 (Judge Carol L. Van Horn, Franklin County), on

appeal at 42 MAP 2014.


          simply substitute a trial by jury for the existing
          language is appealing in its simplicity, the problem is
          that we find it violates our constitutional principles
          that underscore our system of government. The
          overall effect of the Common Pleas decisions which
          have found the provisions severable is to pick one

          and decide that it is more important than the rest of

          manner it did.    Clearly, the [L]egislature in the
          offending language that provided for a trial by judge
          and a preponderance of the evidence test intended
          to dictate the manner in which the facts that would
          support a mandatory sentence were to be
          determined. For the Court now to take on that


                                  - 30 -
J. E01002/14

           important role and effectively take it away from the
           [L]egislature with the stroke of a pen, or to attempt
           to decide which parts of the statute were more
           important to the [L]egislature, offends the
           separation of powers that exist between the
           branches of government.

Commonwealth v. Weyant, No. CP-07-CR-0000568, 574, 583-2013;

Commonwealth v. Morgan, No. CP-07-CR-0001029, 1032-2013, entered

June 9, 2014, slip op. at 17 (en banc, Blair County) (finding 42 Pa.C.S.A.

§ 9712.1, 18 Pa.C.S.A. § 6317 (drug free school zones), and 18 Pa.C.S.A.

§ 7508 (drug trafficking sentencing) unconstitutional and non-severable), on

appeal at 20-22 WAP 2014 and 23 WAP 2014, respectively.

           While the Commonwealth clearly is correct that
           unconstitutional provisions of a statute may be

           in enacting that statute, the undersigned believes
           that this simply is not possible in the instant
           situation,    where    the    constitutional   and
           unconstitutional provisions of the mandatory
           minimum statutes are inextricably interwoven. In

           imposition of mandatory minimum sentences, the
           Commonwealth    would   have  us  ignore   the

           such sentences be found by a judge and not a jury;
           that the defendant need not be informed of the
           applicability of the mandatory sentence prior to
           sentencing; and that the applicable standard be one
           of preponderance of the evidence. The undersigned
           believes it is for the legislature, and not this court, to
           make such determinations. Further, and crucially,

           unconstitutional provisions within the statutes, the
           Commonwealth is essentially asking this court to
           rewrite them, by imposing different burdens of proof
           and notification than the legislature imposed.



                                    - 31 -
J. E01002/14

Commonwealth v. Khalil Brockington, No. CP-46-CR-0009311-2012;

Commonwealth v. Khalil A. Blakeney, No. CP-46-CR-0002521-2013;

Commonwealth v. William Bates, No. CP-46-CR-0000139-2013, entered

March 21, 2014, slip op. at 4-5 (Judge William J. Furber, Jr., Montgomery



bills of information to include factual allegations supporting mandatory

minimum sentences and finding 42 Pa.C.S.A. § 9712.1, 18 Pa.C.S.A. § 6317,

and 18 Pa.C.S.A. § 7508 unconstitutional and non-severable), on appeal at

36 MAP 2014, 37 MAP 2014, and 38 MAP 2014, respectively.

     It would appear clear that the very trial courts entrusted with the

imposition of mandatory minimum sentences after Alleyne have found

Section 9712.1 as a whole to be no longer workable without legislative

guidance.

     Accordingly, having found that Alleyne v. United States renders

42 Pa.C.S.A. §

of sentence      and remand for    the re-imposition of sentence without

consideration     of   any   mandatory   minimum   sentence   provided   by

Section 9712.1.




                                    - 32 -
J. E01002/14

      Judgment of sentence vacated.            Case remanded.        Jurisdiction

relinquished.

      Bender, P.J.E., Panella, J., Donohue, J., Allen, J., and Lazarus, J. join.

      Mundy, J. files a Concurring Opinion in which Olson, J. joins and
Gantman, P.J. concurs in the result.
      Gantman, P.J. and Olson, J. concur in the result of the majority
opinion.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/20/2014




                                     - 33 -
