J-S01041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHARLES SMITH

                            Appellant                No. 1259 WDA 2014


             Appeal from the Judgment of Sentence July 29, 2014
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0000045-2012


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED FEBRUARY 19, 2015

       Appellant, Charles Smith, appeals from the judgment of sentence

entered in the Fayette County Court of Common Pleas, following his jury trial

convictions for two (2) counts of persons not to possess firearms and one

(1) count each of criminal conspiracy, possession with intent to deliver

(“PWID”), simple possession, and possession of drug paraphernalia.1      We

vacate and remand for resentencing.

       In a prior appeal, this Court set forth the relevant facts and some of

the procedural history of this case as follows:

              On November 1, 2011, Detectives Thomas Patton,
              Antonio Muniz and Christopher Kozlowski of the
____________________________________________


1
  18 Pa.C.S.A. §§ 6105, 903; 35 P.S. §§ 780-113(a)(30), (a)(16), and
(a)(32), respectively.
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              Fayette County Drug Task Force arrived at 334
              Breakiron Road, Bullskin Township, Fayette County,
              Pennsylvania, where they met a confidential
              informant (“CI”). The CI had previously informed
              the police that crack cocaine could be purchased
              from inside one of the two mobile home trailers
              located at 334 Breakiron Road.

              The CI was then driven to a secure location and
              searched by the detectives for money and
              contraband. Following the search, the CI was given
              $25.00 in marked U.S. currency and was then
              returned to 334 Breakiron Road by the detectives.
              After a few moments inside 334 Breakiron Road, the
              CI reemerged with a small plastic baggie containing
              what the detectives suspected to be crack cocaine.
              Shortly thereafter, the detectives obtained a search
              warrant for 334 Breakiron Road. The detectives
              returned to the location along with two additional
              police officers and a search warrant that same
              night….    Upon entering one of the trailers, the
              detectives observed an African American male, later
              identified as Leron Brown from Pittsburgh,
              Pennsylvania, retreat to a back bedroom where he
              was eventually apprehended. Detective Kozlowski
              discovered a plastic baggie containing cocaine only a
              few feet away from Brown’s location. [Detective]
              Muniz also uncovered a revolver in the trailer’s
              ventilation ductwork and a muzzleloader in one of
              the closets.    The detectives also found spoons,
              syringes, a digital scale, two cell phones, $461.00 in
              cash, phone numbers and “owe sheets” that night as
              well.

              [Appellant] was also found inside the trailer. After
              being Mirandized[,2 Appellant] admitted that he
              knew and permitted Leron Brown to sell drugs from
              the trailer.

          (Trial Court Opinion, [filed June 20, 2013], at 2-3).
____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).



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          At trial, the Commonwealth did not present the CI as a
          witness.    Accordingly, Appellant’s counsel requested a
          missing witness jury instruction for the CI, which the court
          denied. Ultimately, [on November 6, 2012,] the jury
          convicted Appellant of all counts with which he was
          charged. After the jury returned its verdict, Appellant had
          an outburst in the courtroom, for which the judge found
          him in contempt and sentenced him to a flat term of six
          months’ imprisonment. On December 6, 2012, the court
          sentenced Appellant on his other convictions to a total
          term of 7 to 14 years’ incarceration,[3] consecutive to the
          contempt term. Appellant filed a timely notice of appeal
          on December 19, 2012.

Commonwealth v. Smith, No. 2006 WDA 2012, unpublished memorandum

at 2-3 (Pa.Super. filed June 16, 2014) (some internal citations to the record

omitted).    On appeal, this Court held the trial court did not err when it

denied Appellant’s request for a missing witness instruction. Nevertheless,

this Court determined Appellant’s flat six-month term of incarceration for his

contempt of court conviction was illegal, vacated Appellant’s judgment of

sentence with respect to all of his convictions, and remanded for

resentencing.

       On remand, the trial court initially resentenced Appellant on July 29,

2014, to a term of three (3) to six (6) months’ incarceration for the

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3
  Appellant’s December 6, 2012 sentence included a mandatory minimum
term for the PWID conviction pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii)
(mandating minimum of five (5) years’ incarceration for PWID conviction
where weight of drugs is between ten (10) and one hundred (100) grams
and, at time of sentencing, defendant has been convicted of another drug
trafficking offense).



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contempt of court conviction, to run consecutively with the sentence

imposed on December 6, 2012.4 Appellant filed a timely notice of appeal on

August 1, 2014. The court ordered Appellant to file a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b); Appellant

timely complied.

       While the appeal was pending, the trial court held a resentencing

hearing on October 9, 2014, because the court was concerned that it had

not complied in full with the remand instructions, where the court

resentenced Appellant on the contempt conviction but left the rest of the

December 6, 2012 sentences alone.              The court purported to “resentence”

Appellant for his jury trial convictions to an aggregate term of seven (7) to

fourteen (14) years’ incarceration, to run consecutively to the contempt

sentence imposed on July 29, 2014.

       Appellant raises a single issue for our review:

          WHETHER THE TRIAL COURT ERRED BY NOT GIVING THE
          JURY THE MISSING WITNESS INSTRUCTION WITH
          RESPECT TO THE COMMONWEALTH’S CONFIDENTIAL
          INFORMANT WHEN THE COMMONWEALTH FAILED TO CALL
          ITS CONFIDENTIAL INFORMANT AS A WITNESS?

(Appellant’s Brief at 7).

       As a prefatory matter, we observe the trial court lacked jurisdiction to
____________________________________________


4
   The notice of appeal indicates that Appellant is appealing from the
“[j]udgment of [s]entence dated DECEMBER 6[,] 2014 and JULY 29, 2014.”
We observe that the correct date of the original judgment of sentence for
Appellant’s jury trial convictions is December 6, 2012.



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“resentence” Appellant on October 9, 2014, more than two months after

Appellant had filed his notice of appeal. See Commonwealth v. Archer,

722 A.2d 203 (Pa.Super. 1998) (en banc) (stating challenge to court’s

jurisdiction to impose sentence is non-waivable challenge to legality of

sentence, which this Court can raise sua sponte).

      Pennsylvania Rule of Appellate Procedure 1701 states in relevant part

as follows:

         Rule 1701. Effect of Appeal Generally

         (a) General Rule. Except as otherwise prescribed by
         these rules, after an appeal is taken or review of a
         quasijudicial order is sought, the trial court or other
         government unit may no longer proceed further in the
         matter.

         (b) Authority of a trial court or agency after
         appeal. After an appeal is taken or review of a
         quasijudicial order is sought, the trial court or other
         government unit may:

         (1) Take such action as may be necessary to preserve
         the status quo, correct formal errors in papers relating to
         the matter, cause the record to be transcribed, approved,
         filed and transmitted, grant leave to appeal in forma
         pauperis, grant supersedeas, and take other action
         permitted or required by these rules or otherwise ancillary
         to the appeal or petition for review proceeding.

         (2) Enforce any order entered in the matter, unless the
         effect of the order has been superseded as prescribed in
         this chapter.

         (3) Grant reconsideration of the order which is the
         subject of the appeal or petition, if:

              (i) an application for reconsideration of the order is
              filed in the trial court or other government unit

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            within the time provided or prescribed by law; and

            (ii) an order expressly granting reconsideration of
            such prior order is filed in the trial court or other
            government unit within the time prescribed by these
            rules for the filing of a notice of appeal or petition for
            review of a quasijudicial order with respect to such
            order, or within any shorter time provided or
            prescribed by law for the granting of reconsideration.

                                   *    *    *

         (4) Authorize the taking of depositions or the
         preservation of testimony where required in the interest of
         justice.

         (5) Take any action directed or authorized on application
         by the appellate court.

         (6) Proceed further in any matter in which a non-
         appealable interlocutory order has been entered,
         notwithstanding the filing of a notice of appeal or a petition
         for review of the order.

Pa.R.A.P. 1701(a)-(b).      Additionally: “Except as otherwise provided or

prescribed by law, a court upon notice to the parties may modify or rescind

any order within 30 days after its entry, notwithstanding the prior

termination of any term of court, if no appeal from such order has been

taken or allowed.”    42 Pa.C.S.A. § 5505.       See also Commonwealth v.

Walters, 814 A.2d 253 (Pa.Super. 2002), appeal denied, 574 Pa. 760, 831

A.2d 599 (2003) (stating that barring mistake or fraud, trial court has no

jurisdiction to modify sentence after appeal is taken).

      Instantly, on July 29, 2014, the trial court resentenced Appellant on

his contempt of court conviction to a term of three (3) to six (6) months’


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incarceration, to run consecutively to the December 6, 2012 sentence

imposed for Appellant’s jury trial convictions. The court explicitly stated: “In

all other respects, the sentence of this [c]ourt of December 6, 2012 shall

remain in full force and effect.” (N.T. Resentence Proceedings, 7/29/14, at

2-3). Appellant did not file any post-sentence motions. Instead, Appellant

timely filed a notice of appeal on August 1, 2014.

       Notwithstanding the pending appeal, the court held a hearing on

October 9, 2014, where it purported to “resentence” Appellant on his jury

trial convictions in accordance with this Court’s remand instructions.

Appellant’s prior filing of a notice of appeal, however, divested the trial court

of jurisdiction over this case. See Pa.R.A.P. 1701; Walters, supra. None

of the exceptions enumerated in Rule 1701(b) endowed the court with the

authority to modify Appellant’s sentence more than two months after

Appellant    had    filed   his   notice   of    appeal.   Therefore,   the   court’s

“resentencing” of Appellant on October 9, 2014, is void.

       Nevertheless, Appellant’s appeal from the judgment of sentence

imposed on July 29, 2014 is properly before us.5                 When the court

resentenced Appellant on July 29, 2014, however, it failed to follow this

____________________________________________


5
  Appellant also purports to appeal from the judgment of sentence dated
December 6, 2012. In the previous appeal, however, this Court vacated the
judgment of sentence imposed on that date. Thus, the current appeal is
properly before us solely with respect to the judgment of sentence imposed
on July 29, 2014.



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Court’s remand instructions to resentence Appellant on all of his convictions.

Additionally, the court ordered Appellant’s new contempt sentence to run

consecutively to the December 6, 2012 sentence this Court had vacated on

appeal. Therefore, we vacate the July 29, 2014 judgment of sentence and

remand for full resentencing on all of Appellant’s convictions.          See

Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280, (1986),

cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987) (stating

if appellate court alters overall sentencing scheme, then remand for

resentencing is proper).

      Resentencing should be guided by the following principles:

         § 9756. Sentence of total confinement

         (a) General rule.—In imposing a sentence of total
         confinement the court shall at the time of sentencing
         specify any maximum period up to the limit authorized by
         law and whether the sentence shall commence in a
         correctional or other appropriate institution.

         (b)   Minimum sentence.—

            (1) The court shall impose a minimum sentence of
            confinement which shall not exceed one-half of the
            maximum sentence imposed.

                                 *    *    *

42 Pa.C.S.A. § 9756.

         Criminal contempt is a crime punishable by imprisonment,
         so sentences must be imposed according to the Sentencing
         Code, 42 Pa.C.S.A § 9701 et seq. See Commonwealth
         v. Falkenhan,…452 A.2d 750, 758 ([Pa.Super.] 1982),
         cert. denied, 464 U.S. 803, 104 S.Ct. 49, 78 L.Ed.2d 69
         (1983). The Code mandates that the sentencing court

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        impose not only a maximum sentence, but also a minimum
        sentence which shall not exceed one-half the maximum[.]
        42 Pa.C.S.A. § 9756(b). A flat…sentence does not satisfy
        this requirement.

Commonwealth v. Williams, 753 A.2d 856, 865 (Pa.Super. 2000), appeal

denied, 567 Pa. 713, 785 A.2d 89 (2000) (quoting Commonwealth v.

Cain, 637 A.2d 656, 658 (Pa.Super. 1994)).

     Additionally, with respect to the imposition of a mandatory minimum

sentence per 18 Pa.C.S.A. § 7508, we are mindful of the United States

Supreme Court’s decision in Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 2151, 186 L.Ed.2d 314 (2013), in which the Court expressly held that

any fact increasing the mandatory minimum sentence for a crime is

considered an element of the crime to be submitted to the fact-finder and

found beyond a reasonable doubt.        Section 7508(a)(3)(ii) mandates a

minimum sentence of five (5) years’ incarceration where a defendant is

convicted of PWID involving at least ten (10) grams but less than one

hundred (100) grams of cocaine and, at time of sentencing, the defendant

has been convicted of another drug trafficking offense.       18 Pa.C.S.A. §

7508(a)(3)(ii). Section 7508(b) states that the statutory provisions shall not

be an element of the crime and applicability of the statute shall be

determined at sentencing by a preponderance of the evidence. Recently, in

Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc), this

Court addressed the constitutionality of a similar statute, 42 Pa.C.S.A. §

9712.1, in light of the United States Supreme Court’s decision in Alleyne,

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supra.6     Relying on Alleyne, Newman held that Section 9712.1 can no

longer pass constitutional muster as it “permits the trial court, as opposed to

the jury, to increase a defendant’s minimum sentence based upon a

preponderance of the evidence that the defendant was dealing drugs and

possessed a firearm, or that a firearm was in close proximity to the drugs.”

Newman, supra at 98. Thus, this Court vacated Newman’s PWID sentence

and remanded for resentencing without imposition of the mandatory

minimum under Section 9712.1. See also Commonwealth v. Valentine,

101 A.3d 801 (Pa.Super. 2014) (involving appeal of sentence arising from

jury trial; extending logic of Alleyne and Newman to Sections 42 Pa.C.S.A.

§§ 9712, 9713 and holding those sections are likewise unconstitutional

insofar as they permit automatic increase of defendant’s sentence based on

preponderance of evidence standard).

       Subsequently, this Court directly addressed the constitutionality of

Section 7508 in Commonwealth v. Vargas, ___ A.3d ___, 2014 PA Super

289 (filed December 31, 2014) (en banc), where the trial court imposed a

mandatory minimum sentence for a PWID conviction, pursuant to Section

7508(a)(7)(iii).     On appeal, this Court emphasized that Section 7508 “is

____________________________________________


6
  This Court also made clear that Alleyne is subject to limited retroactivity;
in other words, Alleyne is applicable to all criminal cases still pending on
direct review. Id. at 90. Because Newman’s case was still pending on direct
appeal, the holding in Alleyne applied to Newman’s case, just as it also
applies to Appellant’s direct appeal now before us.



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structured in the same manner as the statutes at issue in Newman and

Valentine….” Id. at *17. This Court concluded that Section 7508 is also

unconstitutional.

      Here, a jury convicted Appellant of PWID and related charges.       The

court applied Section 7508 when it initially sentenced Appellant on

December 6, 2012, and again when it purported to resentence Appellant on

July 29, 2014 and on October 9, 2014. Given this Court’s binding decisions

in Newman, Valentine, and Vargas, however, any application of Section

7508 results in an illegal sentence.    Accordingly, upon remand, the trial

court must resentence Appellant on all of his convictions without imposition

of a Section 7508 mandatory minimum term. Additionally, each sentence of

total confinement must consist of a maximum term and a minimum term

which does not exceed one-half of the maximum term imposed.           See 42

Pa.C.S.A. § 9756; Williams, supra.

      Finally, with regard to his sole issue raised on this appeal, Appellant

argues the CI—if called to testify—could have corroborated Appellant’s claim

that Appellant was not in the trailer earlier in the day when the CI purchased

drugs, but went inside the trailer later only to order the occupants to leave.

Likewise, according to Appellant, the CI could have testified that other

individuals were present in the trailer at the time of the transaction and

Leron Brown was in exclusive possession of the firearms Appellant was

convicted of possessing.   Appellant asserts the CI’s testimony would not


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have been cumulative, given the complete lack of evidence regarding what

transpired inside the trailer when the CI entered it. Because the CI did not

testify at trial, Appellant claims he was entitled to a missing witness

instruction. Appellant concludes the trial court’s denial of his request for a

missing witness instruction entitles Appellant to a new trial.      We cannot

agree.

      In an appeal following a limited remand, an appellant may not raise

new issues wholly unrelated to the issues on remand. Commonwealth v.

Lawson, 789 A.2d 252, 253 (Pa.Super. 2001). Also, under the law of the

case doctrine, “a court involved in the later phases of a litigated matter

should not reopen questions decided by another judge of that same court or

by a higher court in the earlier phases of the matter.” Commonwealth v.

Starr, 541 Pa. 564, 574, 664 A.2d 1326, 1331 (1995).

         Among the related but distinct rules which make up the
         law of the case doctrine are that: (1) upon remand for
         further proceedings, a trial court may not alter the
         resolution of a legal question previously decided by the
         appellate court in the matter; (2) upon a second appeal,
         an appellate court may not alter the resolution of a
         legal question previously decided by the same
         appellate court; and (3) upon transfer of a matter
         between trial judges of coordinate jurisdiction, the
         transferee trial court may not alter the resolution of a legal
         question previously decided by the transferor trial court.

         The various rules which make up the law of the case
         doctrine serve not only to promote the goal of judicial
         economy (as does the coordinate jurisdiction rule) but also
         operate (1) to protect the settled expectations of the
         parties; (2) to insure uniformity of decisions; (3) to
         maintain consistency during the course of a single case;

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         (4) to effectuate the proper and streamlined administration
         of justice; and (5) to bring litigation to an end.

Id. (internal citations omitted) (emphasis added). Nevertheless,

         the law of the case doctrine might not apply under
         exceptional circumstances, including: an intervening
         change in the law, a substantial change in the facts, or if
         the prior ruling was “clearly erroneous” and “would create
         a manifest injustice if followed.”

Commonwealth v. McCandless, 880 A.2d 1262, 1268 (Pa.Super. 2005)

(en banc) (quoting Starr, supra at 1332).

      Instantly, in Appellant’s prior appeal, this Court remanded this case for

resentencing because the trial court had imposed an illegal flat six-month

term of incarceration for Appellant’s contempt conviction.       Correction of

Appellant’s illegal sentence was the sole purpose for the limited remand.

Therefore, Appellant’s single issue in the current appeal regarding the

missing witness jury instruction is outside the scope of this Court’s previous

remand order and, on that basis, we will not consider it.       See Lawson,

supra.

      Significantly, Appellant raised this exact issue in his previous appeal,

and this Court already addressed and rejected Appellant’s claim concerning a

missing witness instruction as follows:

         Here, Appellant contends that the CI was only available to
         the Commonwealth as a witness, the CI had special
         information material to the issue of Appellant’s guilt, and
         this information would not encompass merely cumulative
         evidence.    Appellant argues that the CI—if called to
         testify—could have corroborated Appellant’s claim that he
         was not at the trailer earlier in the day when the CI

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        purchased drugs, but was present when detectives arrived
        later because he was trying to evict the occupants involved
        with selling drugs. Further, Appellant contends that the CI
        could have confirmed that Leron Brown was exclusively
        responsible for the contraband and activities taking place
        in the trailer. Because the CI possessed this information
        and did not testify at trial, Appellant asserts that the trial
        court should have given the missing witness instruction to
        the jury.

        However, as discerned by the trial court, Appellant’s
        charges resulted from knowingly permitting individuals to
        sell illegal drugs from his trailer. The Commonwealth only
        sought to prove that Appellant was a part of the
        conspiracy. Thus, the CI’s testimony would have been
        immaterial because the Commonwealth prosecuted
        Appellant for permitting the sale of drugs from his trailer,
        not for directly selling drugs to the CI. In fact, there was
        no allegation that Appellant sold drugs to the CI. Further,
        the CI’s testimony would have been cumulative because
        there was other testimony offered that Appellant was not
        present at the trailer for very long before police arrived,
        and that Appellant went to the trailer to evict the
        occupants. Moreover, other testimony was offered that
        police found several pieces of evidence in the possession of
        Leron Brown, not Appellant.

        Additionally, in light of this Court’s standard of review for
        jury instructions discussed supra, Appellant has not
        sufficiently established that he was prejudiced by the trial
        court’s refusal to give the missing witness jury instruction
        to such an extent that a new trial is warranted. Appellant
        confessed to police that he permitted Leron Brown to use
        his trailer to sell drugs in exchange for narcotics; thus,
        Appellant cannot prove that he was prejudiced given the
        overwhelming evidence of his participation in the
        conspiracy.     The trial court, therefore, did not err in
        denying Appellant’s request for the missing witness jury
        instruction.

Smith, supra at 5-6 (internal citations to the record omitted).      Appellant

does not suggest any exceptional circumstances to compel reconsideration


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of this Court’s previous decision regarding Appellant’s question on appeal.

Absent exceptional circumstances, we decline to alter this Court’s previous

resolution of Appellant’s issue. See Starr, supra. Accordingly, we give this

substantive issue no further attention.

      Based on the foregoing, we continue to affirm Appellant’s convictions,

but we vacate the judgment of sentence in its entirety, and remand solely

for resentencing without imposition of any mandatory minimum or flat term

of incarceration.

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2015




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