J-S73009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DARYLE MAURICE WALKER,

                        Appellant                   No. 343 MDA 2014


        Appeal from the Judgment of Sentence September 27, 2013
               In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0000250-2013


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 08, 2014

     Daryle Maurice Walker appeals from the judgment of sentence of three

to six years incarcaration imposed by the trial court after a jury found him

guilty of possession with intent to deliver (“PWID”) 3.3 grams of cocaine.

After careful review, we are constrained to vacate the judgment of sentence

and remand for resentencing.

     Troopers Shawn Wolfe and Christopher Keppel, utilizing a confidential

informant (“CI”), set up a controlled drug buy for an eight ball of cocaine on

September 11, 2012. The CI was searched and provided with pre-recorded

money to make the purchase. Trooper Keppel observed the CI enter a dark

BMW. The only other individual in the car was the driver, who at that time

Trooper Keppel could only describe as an African-American male.       The CI

returned to Trooper Keppel’s vehicle and provided him with the cocaine the
J-S73009-14


CI purchased.     The amount of cocaine was 3.3 grams, and Appellant

stipulated at trial to the weight of the drugs involved.

      Trooper Keppel watched the vehicle before it left his view for a brief

period. He then passed the vehicle and recognized the driver as Appellant.

Trooper Keppel had known Appellant since 2005 or 2006.              Similarly,

Trooper Wolfe knew Appellant since 2007. In addition, Trooper Wolfe set up

surveillance for the drug buy from a different vantage point. He witnessed

the CI walking towards his location. Trooper Wolfe then saw Appellant drive

by in a dark BMW and pull over. According to Trooper Wolfe, he observed

the CI enter the car with Appellant, who was fifteen to twenty yards away.

Trooper Wolfe maintained that the CI did not interact with any other

individuals before returning to Trooper Keppel’s location. Following the CI’s

exit of Appellant’s vehicle, Trooper Wolfe followed Appellant and obtained his

license plate number. The vehicle was registered to Appellant’s mother.

      Since trial in this matter took place after Alleyne v. United States,

133 S.Ct. 2151 (2013), the Commonwealth, without objection, requested

that the jury be asked to determine the amount of drugs involved.          As

noted, Appellant did not dispute the amount of drugs recovered and, in fact,

stipulated that the weight of the drugs was 3.3 grams.          At the time,

Appellant was aware of the Alleyne decision.         The jury found Appellant

guilty and, consistent with the stipulation, indicated that the amount of




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cocaine recovered weighed between two and ten grams.             The trial court

sentenced Appellant to a mandatory minimum.

      Appellant filed a timely post-sentence motion on October 2, 2013,

contending that his mandatory sentence was illegal because the statute

removed the court’s sentencing discretion.      No specific Alleyne challenge

was forwarded. In addition, Appellant raised a weight of the evidence claim.

The court did not enter an order denying the motion and Appellant filed a

notice of appeal on February 20, 2014. The trial court directed Appellant to

file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal.    Appellant complied, and the trial court issued a short order

directing this Court to the transcript of Appellant’s trial and sentencing.

      In the meantime, this Court ordered Appellant to show cause why his

appeal should not be dismissed as premature.         Appellant filed an answer

indicating that he filed a praecipe with the trial court to enter an order

denying his post-sentence motion by operation of law. On May 21, 2014,

the court entered that order. Thus, this appeal is properly before this Court.

Pa.R.A.P. 905(a)(5). Appellant now raises the following issues on appeal.

      I.      The mandatory sentence of three to six years as imposed
             by th[e] Honor[a]ble [Court] was unconstitutional in that
             such a mandatory sentence by th[e] Honorable Court
             [removed] any discretion in imposing sentence and vests
             with the Commonwealth all sentencing authority.

      II.    The jury’s verdict was against the greater weight of the
             evidence so as to shock one’s conscience on the following
             grounds: the evidence presented at trial clearly established
             that the Commonwealth witnesses could not have made a

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             reliable identification of the Defendant in that there [sic]
             view was obstructed; the evidence presented at trial
             clearly established that the Commonwealth witnesses
             could not have made a reliable identification of the
             Defendant in that they did not observe the individual for
             sufficient amount of time; other than the unreliable
             identification of the Defendant, there is no other
             competent evidence that the Defendant committed the
             offense.

      III.   The evidence at trial was insufficient to support the jury
             verdict and therefore th[e] Honorable Court erred in not
             arresting judgment and vacating the judgment of sentence
             on the following grounds: the evidence presented at trial
             clearly established that the Commonwealth witnesses
             could not have made a reliable identification of the
             Defendant in that there [sic] view was obstructed; the
             evidence presented at trial clearly established that the
             Commonwealth witnesses could not have made a reliable
             identification of the Defendant in that they did not observe
             the individual for sufficient amount of time; other than the
             unreliable identification of the Defendant, there is no other
             competent evidence that the Defendant committed the
             offense.

Appellant’s brief at 5.

      Since a sufficiency claim would entitle Appellant to complete discharge,

we address that issue at the outset. Commonwealth v. Stokes, 38 A.3d

846 (Pa.Super. 2012). In conducting a sufficiency of the evidence review,

we view all of the evidence admitted, even improperly admitted evidence.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

We consider such evidence in a light most favorable to the Commonwealth

as the verdict winner, drawing all reasonable inferences from the evidence in

favor of the Commonwealth. Id. When evidence exists to allow the fact-




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finder to determine beyond a reasonable doubt each element of the crimes

charged, the sufficiency claim will fail. Id.

       The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   In addition, the Commonwealth can prove its case by circumstantial

evidence.     Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief.        This Court is not

permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.

       Appellant asserts that the troopers’ identification testimony “must be

viewed with caution in that both [t]roopers only had a brief period of time to

view the individual and their views [were] obstructed by tinted windows,

which rendered them in a position not to have a good opportunity to view

the individual.”      Appellant’s brief at 16.1   Here, the troopers identified

Appellant as the person in the BMW and described how they observed him.


____________________________________________


1
     We note with disapproval that Appellant has argued that the
Commonwealth must prove that he possessed a firearm and that the
evidence was insufficient to support an indecent assault and corruption of
minors charge, none of which is relevant to this appeal. Further, we voice
our displeasure that the Commonwealth has failed to file a timely brief in
this matter. This is especially disconcerting where the defendant was
sentenced to a mandatory minimum sentence, and the state of the law in
that area is in flux.



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The jury was free to accept this testimony and believe that the troopers did

not mistakenly identify him. Appellant’s sufficiency claim is without merit.

      Appellant’s second challenge is to the weight of the evidence. Since a

successful weight claim would warrant a retrial and render any sentencing

challenge   moot,   we    address   that   issue   before   reaching   Appellant’s

sentencing argument. A weight claim must be preserved in a timely post-

sentence motion.         Commonwealth v. Lofton, 57 A.3d 1270, 1273

(Pa.Super. 2012).    “Appellate review of a weight claim is a review of the

exercise of discretion, not of the underlying question of whether the verdict

is against the weight of the evidence.” Commonwealth v. Clay, 64 A.3d

1049, 1055 (Pa. 2013) (italics in original). Accordingly, “[o]ne of the least

assailable reasons for granting or denying a new trial is the lower court's

conviction that the verdict was or was not against the weight of the evidence

and that a new trial should be granted in the interest of justice.” Id.

      A trial judge should not grant a new trial due to “a mere conflict in the

testimony or because the judge on the same facts would have arrived at a

different conclusion.”    Id.   Instead, the trial court must examine whether

“‘notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.’” Id. Only where the jury verdict “is so contrary to the evidence as

to shock one's sense of justice” should a trial court afford a defendant a new

trial. Id. A weight of the evidence issue concedes that sufficient evidence


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was introduced.         Commonwealth v. Charlton, 902 A.2d 554, 561

(Pa.Super. 2006).

         Appellant’s weight claim is devoid of any merit. The only testimony in

this case was provided by the Commonwealth witnesses: Troopers Wolfe and

Keppel. Their testimony was consistent with one another and they did not

contradict themselves.        There were simply no facts to weigh against the

testimony of the troopers. Rather, Appellant’s position hinges on this Court

rejecting the jury’s credibility determination that the troopers testified

accurately.    Since there is not a conflict in the evidence, Appellant’s issue

fails.

         Appellant also now contends that his sentence is unconstitutional

under Alleyne.2        He contends for the first time, despite Alleyne having

been decided at the time of Appellant’s trial, that Alleyne requires the facts

necessary to invoke a mandatory sentence be included in the criminal

information. Since the weight of the drugs, though stipulated to and decided

by the jury on its verdict slip without objection, was not set forth in the

information, Appellant maintains that his sentence is illegal.

         Admittedly,   this   Court    has     opined   that   various   Alleyne-type

challenges to mandatory minimum sentences present illegal sentencing

____________________________________________


2
   Appellant’s argument below was not that his sentence violated Alleyne to
the extent that his jury trial rights were violated, but that removing a court’s
discretion to sentence is unconstitutional.



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questions.        Commonwealth            v.   Fennell,   2014   PA   Super   261;

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

Commonwealth v. Valentine, 2014 PA Super 220; Commonwealth v.

Lawrence, 99 A.3d 116 (Pa.Super. 2014); Commonwealth v. Matteson,

96 A.3d 1064 (Pa.Super. 2014); Commonwealth v. Thompson, 93 A.3d

478 (Pa.Super. 2014); Watley, supra; Commonwealth v. Munday, 78

A.3d 661 (Pa.Super. 2013).3

____________________________________________


3
   The Pennsylvania Supreme Court has granted allowance of appeal to
determine whether an Alleyne issue presents a non-waivable illegal
sentencing question. Commonwealth v. Johnson, 93 A.3d 806 (Pa.
2014). In addition to Alleyne-related issues, in a host of other cases, we
have construed various mandatory minimum sentencing claims as legality of
sentence questions.    See Commonwealth v. Akbar, 91 A.3d 227
(Pa.Super. 2014); Commonwealth v. Armstrong, 74 A.3d 228 (Pa.Super.
2013); Commonwealth v. Baker, 72 A.3d 652 (Pa.Super. 2013);
Commonwealth v. Hopkins, 67 A.3d 817 (Pa.Super. 2013);
Commonwealth v. Hawkins, 45 A.3d 1123 (Pa.Super. 2012);
Commonwealth v. Stein, 39 A.3d 365 (Pa.Super. 2012), disapproved on
other grounds by, Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013);
Commonwealth       v.   Stokes,    38   A.3d    846   (Pa.Super.    2012);
Commonwealth       v.   Poland,    26   A.3d    518   (Pa.Super.    2011);
Commonwealth       v.   Kittrell,  19   A.3d    532   (Pa.Super.    2011);
Commonwealth v. Carpio-Santiago, 14 A.3d 903 (Pa.Super. 2011);
Commonwealth v. Madeira, 982 A.2d 81 (Pa.Super. 2009);
Commonwealth v. McKibben, 977 A.2d 1188 (Pa.Super. 2009);
Commonwealth v. Foster, 960 A.2d 160 (Pa.Super. 2008), affirmed, 17
A.3d 332 (Pa. 2011) (OAJC); Commonwealth v. Rush, 959 A.2d 945
(Pa.Super. 2008); Commonwealth v. Love, 957 A.2d 765 (Pa.Super.
2008); Commonwealth v. Diamond, 945 A.2d 252 (Pa.Super. 2008);
Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super. 2007);
Commonwealth v. Harley, 924 A.2d 1273 (Pa.Super. 2007);
Commonwealth v. Johnson, 920 A.2d 873 (Pa.Super. 2007);
Commonwealth v. Littlehales, 915 A.2d 662 (Pa.Super. 2007);
Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super. 2006);
(Footnote Continued Next Page)


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      In Watley, we sua sponte raised and rejected an Alleyne issue. We

held that non-compliance with Alleyne, which had not yet been decided at

the time of Watley’s trial or sentencing, was harmless and that the

defendant’s sentence was not illegal. There, the defendant was convicted by

the jury of both possessing a firearm illegally and possession with intent to

deliver drugs.    The firearm and drugs were found together in the front

passenger area of the car.           The applicable mandatory sentencing statute

related to firearms being in close proximity to drugs.        Relying on United

States Supreme Court precedent discussing harmless error for Apprendi

violations, see United States v. Cotton, 535 U.S. 625 (2002), we held

that, because the facts necessary to determine the mandatory sentence
                       _______________________
(Footnote Continued)

Commonwealth         v.  Bell,    901    A.2d    1033    (Pa.Super.  2006);
Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001);
Commonwealth v. Wynn, 760 A.2d 40 (Pa.Super. 2000), reversed on
other ground, 786 A.2d 202 (Pa. 2001); see also Commonwealth v.
Vasquez, 744 A.2d 1280 (Pa. 2000) (Commonwealth’s issue on appeal,
regarding failure to impose a mandatory fine under 18 Pa.C.S. § 7508, was
non-waivable illegal sentencing claim); Commonwealth v. Eisenberg, 98
A.3d 1268 (Pa. 2014) (constitutional challenge to mandatory minimum fine
was illegal sentencing question); Commonwealth v. Jacobs, 900 A.2d 368
(Pa.Super. 2006) (en banc) (noting in dicta that certain mandatory minimum
sentencing claims present legality of sentence issues).

      In Commonwealth v. Williams, 787 A.2d 1085 (Pa.Super. 2001), a
panel of this Court did hold that a constitutional challenge to 42 Pa.C.S.
§ 9712, based on it violating the defendant’s jury trial rights, was a
discretionary sentencing claim. That decision is no longer valid in light of
decisions such as Newman. Of course, in Commonwealth v. Lawrence,
99 A.3d 116 (Pa.Super. 2014), this Court held that constitutional challenges
based on equal protection and ex post facto claims, relative to a mandatory
minimum statute, did not present non-waivable illegal sentencing questions.



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were undisputed, overwhelming, and decided by the jury, no Alleyne error

occurred.

     Subsequently, in Munday and Thompson, this Court concluded that

an Alleyne claim was non-waivable and meritorious where the jury did not

decide the facts necessary to impose the mandatory sentence. In Munday,

Thompson, and Watley, Alleyne had been decided after the defendants

were sentenced.

     In Newman, this Court found that because mandatory minimum

sentencing challenges ordinarily present illegal sentencing questions, and

that Apprendi v. New Jersey, 530 U.S. 466 (2000) issues have been held

to implicate the legality of a sentence, the Alleyne issue in that case was a

non-waivable illegal sentencing claim. Newman involved a case where the

defendant’s trial, sentencing and original appeal were decided prior to

Alleyne. However, shortly after the original panel decision in Newman, the

United States Supreme Court handed down Alleyne, and the defendant

successfully sought re-argument.

     The Newman Court not only treated the Alleyne argument as an

illegal sentencing claim, but also reached an issue of severability that had

not been leveled below. Like Munday, and unlike Watley, the jury’s verdict

in Newman did not reveal that it found the facts needed to prompt the

mandatory. As in Watley, the triggering facts for the mandatory sentence

related to whether a firearm was in close proximity to drugs.


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     Although recognizing that an Alleyne issue could be considered under

a harmless error analysis, the Newman Court found that the failure of the

jury to expressly determine whether the gun in that case was in close

proximity to drugs precluded a harmless error finding. Thus, Newman was

distinguishable from this Court’s other recent en banc decision in Watley.

The Newman majority further declined to remand for the empaneling of a

second sentencing jury, finding that such a procedure would violate the

separation of powers doctrine.    In doing so, it ruled that the firearms

mandatory statute, 42 Pa.C.S. § 9712.1, was unconstitutional in its entirety

and not merely the section governing a court’s burden of proof. In short, it

held that the mandatory statute was not severable.

     In Valentine, supra, this Court expanded Newman to prevent the

Commonwealth from submitting to the jury facts not included as an element

of the offense but set forth in the mandatory sentencing statutes. There, in

a post-Alleyne case, the Commonwealth amended its criminal information

to include whether the defendant visibly possessed a gun and the offense

occurred in or near a place of public transportation. Without objection, the

jury was presented with specific jury interrogatories as to those facts. The

jury found each fact beyond a reasonable doubt.

     While the defendant did not preserve at the trial level any Alleyne

challenge, despite Alleyne having been decided at the time of trial and

sentencing, (unlike Watley), the Valentine Court declared that the


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defendant’s sentencing claim was not waivable based on Watley.          It then

declined to follow Watley’s harmless error analysis in light of Newman and

ruled that Newman rendered both mandatory sentencing statutes in

question therein, 42 Pa.C.S. § 9712 and 42 Pa.C.S. § 9713, unconstitutional

in their entirety.    Without addressing that the defendant’s jury trial rights

were not infringed under Alleyne and that the court could have otherwise

lawfully imposed the sentence in question, it remanded for resentencing. 4

       Subsequently, in Commonwealth v. Bizzel, 2014 PA Super ___, a

panel of this Court decided that 18 Pa.C.S. 6317 was unconstitutional in its

entirety based on Newman. That statute provided a mandatory minimum

based on delivery or possession with intent to deliver drugs within a school

zone. In Bizzel, the fact triggering the mandatory was neither stipulated to

nor determined by the jury. There, however, the defendant had preserved

his Alleyne-styled arguments at the trial level, noting that at the time of


____________________________________________


4
    This author has disagreed with the rationale of both Newman and
Valentine. See Commonwealth v. Bizzel, 2014 PA Super __ (Bowes, J.,
concurring); Commonwealth v. Wolfe, 2014 PA Super ___ (Bowes, J.,
concurring).   Speaking for myself, I continue to adhere to the views
expressed in those secondary opinions.          I strongly disagree that the
mandatory sentencing statutes are not severable and believe this case
proves yet another example of why the statute is severable.            Absent
Newman and Valentine, it is evident that there is no sentencing error
since Appellant’s jury trial rights were not violated and the jury determined
beyond a reasonable doubt all the facts necessary for his sentence. See
also Commonwealth v. Matteson, 96 A.3d 1064 (Pa.Super. 2014)
(opinion by Musmanno, J.).



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sentencing therein, the Alleyne case was pending before the Supreme

Court.

     In Fennell, supra, we concluded that a sentence under the same

statute at issue herein was illegal where, as here, the defendant stipulated

to the weight of the drugs involved. Further, in Commonwealth v. Wolfe,

2014 PA Super ___, this Court ruled that a sentence was illegal where the

court sentenced the defendant to a mandatory minimum under 42 Pa.C.S.

§ 9718.   But see Matteson, supra.            There, the fact that implicated the

mandatory statute was already an element of the offense; namely, the age

of the victim. However, in light of Newman and Valentine, we ruled that

resentencing was required. We did so despite the defendant not raising any

Alleyne challenge below or on appeal.

     Appellant does not argue that § 7508 is non-severable or that allowing

the jury to decide the weight of the drugs violated the separation of powers

doctrine. Instead, Appellant maintains that his sentence is unconstitutional

because the criminal information did not include the weight of the drugs. As

mentioned, Appellant not only failed to object, but stipulated to the weight

of the drugs and agreed to allow the court to instruct the jury on the drug

weight. Assuming arguendo that this aspect of his argument is waived, as

discussed, Newman, Valentine, Bizzel, Fennell, and Wolfe render

mandatory     sentencing   statutes,    not     pertaining   to   prior   convictions,

unconstitutional as a whole.      Hence, a question arises as to whether


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Appellant’s sentence is “illegal” under those precedents.5          Absent the

mandatory sentencing statute, Appellant could still have been sentenced to

the period of incarceration provided in this case. This case does not present

a situation where the court lacked statutory or constitutional authority for its

____________________________________________


5
    This Court has recognized the difficulties of both this Court and our
Supreme Court in agreeing upon a settled definition of an illegal sentencing
claim.    Commonwealth v. Tobin, 89 A.3d 663 (Pa.Super. 2014);
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en banc).
Speaking for myself, I share the sentiments of the learned Justice Thomas
Saylor that there is some flexibility in whether a sentence is illegal and
believe careful consideration on an issue by issue basis is warranted to
determine whether a sentencing issue raises an unlawful sentence per se.
See Commonwealth v. Foster, 17 A.3d 332, 355-356 (Pa. 2011) (OAJC)
(Saylor, J., concurring). If I were writing on a clean slate, I would be
hesitant to hold that every issue that implicates a mandatory minimum
sentencing statute is automatically an illegal sentencing claim.

    Indeed, my own view is that there is an important distinction between
pre-Alleyne mandatory challenges, where judges were sentencing based on
essential facts connected to the crime that were not determined by a jury,
and post-Alleyne sentencing cases. In the latter situation, I believe any
issue should be preserved because courts and the Commonwealth were
attempting to comply with that decision, thereby eliminating the
constitutional jury trial problem. Hence, the grounds for why a sentence
would be a constitutionally infirm are simply not the same in the pre-
Alleyne cases. Phrased differently, in the pre-Alleyne cases, there is an
alleged and in some cases actual constitutional violation, based on an
intervening change in the law, in combination with a lack of discretionary
authority on the part of the sentencing judge. In post-Alleyne cases, the
constitutional jury trial violation is generally no longer a concern. The
absence of discretion in sentencing, in my view, does not automatically
equate to an illegal sentencing issue. Even in Commonwealth v. Foster,
960 A.2d 160 (Pa.Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011) (OAJC), in
addition to the lack of judicial discretion, there was a violation of the
statutory language interpreted by intervening Pennsylvania Supreme Court
case law. In this case, the defendant was afforded greater protections than
the statute afforded and no constitutional right was violated.



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sentence. We recognize that in Commonwealth v. Foster, 960 A.2d 160

(Pa.Super. 2008), affirmed, 17 A.3d 332 (Pa. 2011) (OAJC), a decision I

authored, this Court did not find dispositive, on the issue of whether the

claim was a legality of sentence question, the fact that the defendant could

be sentenced to the same period of incarceration absent the mandatory

sentencing statute.    Unlike Foster, where the sentence unequivocally

violated    the   Pennsylvania    Supreme     Court’s    pronouncement     in

Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007), this sentence does

not violate Alleyne, the intervening change in the law in question, or the

plain language of the statute. Cf. Commonwealth v. Taylor, __ A.3d __

(Pa. 2014) (filed November 20, 2014) (failure to order mandatory drug and

alcohol assessment prior to sentencing, in violation of statutory language,

presented legality of sentence issue).

      This case also is distinguishable from Newman and Bizzel.       Unlike

both those cases, there is no factual dispute as to the weight of the cocaine

involved.   Appellant here, post-Alleyne, stipulated to the weight of the

drugs. Thus, as in Watley, the evidence was undisputed and decided by the

jury beyond a reasonable doubt.     Nevertheless, the procedure adopted by

the Commonwealth, though consistent with the general practice in this

Commonwealth      regarding   Apprendi   issues,   see   Commonwealth      v.

Mobley, 14 A.3d 887 (Pa.Super. 2011), was considered unconstitutional by

this Court in Valentine.


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       The distinction between this case and Valentine is that herein the

mandatory triggering fact was stipulated to, i.e., the defendant admitted the

fact. Therefore, similar to Watley, and contrary to Newman, there is no

jury trial right violation and the sentence did not violate Alleyne. Of course,

in light of Valentine, the jury being instructed to determine the weight of

the drugs was a separation of powers violation.6             However, Appellant

admitted to the weight of the drugs by stipulating to its amount. He did so

with full knowledge of the Alleyne decision.         Therefore, any separation of

powers problem is harmless.            Nonetheless, the sentencing statute is no

longer constitutionally valid.        See Bizzel, supra; cf. Newman, supra;

Wolfe, supra. More importantly, in Fennell, supra, we ruled a mandatory

sentence under the identical statute at issue illegal despite the defendant

stipulating to the weight of the drugs.            Accordingly, we are forced to

conclude that reading Newman, Valentine, Fennell, and Wolfe, together

mandates that Appellant be resentenced.

       We find no meaningful distinction between the situation where the jury

finds an element beyond a reasonable doubt or is instructed to find facts

included in the mandatory statute that aggravate the crime and does so, and

where the defendant admits to the fact by stipulation.          In each of these

situations, there is no jury trial right violation under Alleyne, but our prior
____________________________________________


6
  We note that this Court has never held that a similar procedure used to
comply with Apprendi issues violated the separation of powers doctrine.



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decisions have still required resentencing where the         defendant was

sentenced to a mandatory under a wholly unconstitutional statute. Thus, we

are constrained to vacate Appellant’s sentence.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

      Judge Musmanno joins the Memorandum.

      Judge Wecht Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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