J-A22004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOSHUA SCOTT SCHAUER

                            Appellant                 No. 2019 MDA 2013


             Appeal from the Judgment of Sentence June 26, 2013
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000761-2012


BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                         FILED FEBRUARY 24, 2015

        Appellant, Joshua Scott Schauer, appeals from the judgment of

sentence entered June 26, 2013, in the Court of Common Pleas of Lebanon

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

        On March 7, 2013, a jury convicted Schauer of Delivery of a Controlled

Substance,1 Criminal use of a Communication Facility,2 and two counts of

conspiracy.3 At sentencing, the trial court imposed a mandatory minimum

sentence, pursuant to 18 Pa.C.S.A. § 6317, Drug-free school zones, as it

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S.A. § 7512(a).
3
    18 Pa.C.S.A. § 903(a)(1).
J-A22004-14



found that the evidence presented at trial and by the Commonwealth at

sentencing established by a preponderance of the evidence that Schauer

possessed a controlled substance within a school zone.         Schauer filed a

timely post-sentence, which the trial court denied.        This timely appeal

followed.

       In Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013),

the Supreme Court held that sentencing factors that support the imposition

of a mandatory minimum sentence must be submitted to a jury for trial or

admitted to by the defendant. Although sentencing in this matter occurred

after the decision in Alleyne, the trial court acted independently in making

the factual determination that resulted in the imposition of the mandatory

minimum sentence.4 Such action cannot withstand judicial scrutiny as it

results in an illegal sentence.       See Alleyne; Commonwealth v. Watley,

81 A.3d 108, 177, n.4 (Pa. Super. 2013), appeal denied, 95 A.3d

277 (Pa. 2014).5      Accordingly, we are constrained to vacate the judgment of

sentence and remand this case for re-sentencing.        Our disposition of this

____________________________________________


4
  The Commonwealth concedes on appeal that the “sentencing factor” at
issue, i.e., whether Schauer possessed a controlled substance within a
school zone, was not determined by the factfinder to have been proven
beyond a reasonable doubt. See Commonwealth’s Brief at 14.
5
  Although Schauer did not raise this issue in his Rule 1925(b) statement,
“[l]egality of sentence questions are not waivable and may be raised sua
sponte by this Court.” Watley, 81 A.3d at 118.




                                           -2-
J-A22004-14



issue renders Schauer’s additional sentencing claims moot. As we are sure

the trial court and parties are aware by now, § 6317 has been declared

unconstitutional. See Commonwealth v. Bizzel, ___ A.3d ___, 2014 WL

6756277 (Pa. Super., filed December 2, 2014).

      We find no merit to Schauer’s remaining claim that the trial court

erred when it permitted the Commonwealth to introduce prior bad acts

evidence. We note at the outset that “the admission of evidence is within

the sound discretion of the trial court and will be reversed only upon a

showing that the trial court clearly abused its discretion.” Commonwealth

v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012), appeal denied, 76

A.3d 538 (Pa. 2013) (internal citations omitted).

      It is impermissible to present evidence at trial of a defendant’s prior

bad acts or crimes to establish the defendant’s criminal character or

proclivities.   See Pa.R.E., Rule 404(b)(1); see also Commonwealth v.

Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008). However, reference to

prior criminal activity of the accused may be introduced where relevant to

some purpose other than demonstrating defendant's general criminal

propensity.     It is black letter law that the Commonwealth may impeach a

defendant's credibility with reference to prior crimes where the defense

opens the door. See Commonwealth v. Hood, 872 A.2d 175, 185 (Pa.

Super. 2005). “[The defendant] is not insulated from being discredited about

the factual accuracy simply because that proof involves other crimes.” Id.




                                    -3-
J-A22004-14



      In this case, Schauer opened the door to his prior criminal conviction

for possession with intent to deliver heroin. On cross-examination, Schauer

adamantly stated that while he has used drugs, he did not sell them. See

N.T., Trial, 3/7/13 at 94 (“I testified that I use drugs. I have used drugs. I

do not sell them.”).      Following a sidebar, the trial court permitted the

Commonwealth to question Schauer regarding the prior drug conviction. We

find no error in the trial court’s ruling.

      After Schauer flatly denied that he delivered drugs, it was permissible

for the Commonwealth to impeach that testimony with evidence of Schauer’s

prior conviction for possession with intent to deliver heroin.    See Hood,

supra. Although certainly prejudicial, we find no danger that the contested

evidence would “stir such passion in the [finder of fact] as to sweep them

beyond a rational consideration of guilt or innocence of the crime on trial.”

Commonwealth v. Sherwood, 603 Pa. 92, 116 n.25, 982 A.2d 483, 498 n.

25 (2009) (citation omitted). We therefore find no abuse of discretion.

      Judgment of sentence vacated.           Case remanded for re-sentencing

consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/24/2015


                                        -4-
