J-A35007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

RONALD STANFORD,

                         Appellant                  No. 1513 WDA 2013


      Appeal from the Judgment of Sentence Entered August 22, 2013
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0002099-2012


BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED JANUARY 20, 2015

      Appellant, Ronald Standford, appeals from the judgment of sentence

of five to ten years’ incarceration, imposed after a jury convicted him of

possession of a controlled substance (cocaine), and possession with intent to

deliver (PWID) a controlled substance (cocaine).     Appellant challenges the

sufficiency of the evidence to sustain his PWID conviction, as well as the

legality of his mandatory minimum sentence imposed pursuant to 18 Pa.C.S.

§ 7508. After careful review, we affirm Appellant’s conviction, but vacate his

judgment of sentence and remand for resentencing.

      The trial court summarized the facts of this case as follows:

            On September 2, 2011, at approximately 5:00 PM, City of
      Pittsburgh police were working in plain clothes in the Homewood
      neighborhood of Pittsburgh. Their attention was drawn to a
      Hyundai Sonata automobile because they saw it: travel at a high
      rate of speed; fail to use a turn signal when it swerved to the
      side of the road; and[] park on the sidewalk in front of a housing
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       complex which is well-known for violent drug activity. As a
       result, the police pulled behind the Sonata and activated their
       lights and siren to execute a traffic stop. [Appellant] … who was
       the front seat passenger, exited the vehicle and began to walk
       away. When he was ordered back to the car, he became
       extremely confrontational. The police looked into the vehicle
       and saw, right in the middle of the front passenger seat, a large
       piece of crack cocaine. The cocaine weighed 12.81 grams.
       [Appellant] was searched and a cell phone and $516.00 was
       found on his person. No use paraphernalia was found for the
       ingestion of the crack cocaine.            After [Appellant] was
                     [1]
       Mirandize[d], he admitted that the crack cocaine was his, and
       reported [that] he was unemployed. An expert testified at trial
       that, with the facts as described above, [Appellant] possessed
       the cocaine with the intent to deliver it.

Trial Court Opinion (TCO), 6/3/14, at 1.

       Based on these facts, Appellant was convicted of the above-stated

offenses.    On August 22, 2013, the court sentenced him to a mandatory

term of five to ten years’ incarceration pursuant to 18 Pa.C.S. §

7508(a)(3)(ii). Appellant filed a timely notice of appeal, as well as a timely

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Herein, he presents two questions for our review:

       I. Was the trial court’s imposition of the mandatory minimum
       sentence under 18 Pa.C.S.A. § 7508(a)(3)(ii) illegal when the
       factfinder never found the facts necessary beyond a reasonable
       doubt for the imposition of the mandatory minimum, as required
       by the United States Supreme Court in Alleyne v. United
       States, 133 S.Ct. 2151 (2013)?

       II. Was the evidence insufficient to prove [PWID] beyond a
       reasonable doubt when the evidence merely showed that
       [Appellant] was only in possession of the drugs, not that he
       intended to distribute them?
____________________________________________


1
    See Miranda v. Arizona, 384 U.S. 436 (1966).



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Appellant’s Brief at 5 (unnecessary capitalization omitted).

      For ease of disposition, we will address Appellant’s challenge to the

sufficiency of the evidence first. To begin, we note our standard of review of

a challenge to the sufficiency of the evidence:

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Here, Appellant solely challenges his conviction for PWID, arguing that

the Commonwealth failed to proffer sufficient proof that he possessed the

crack cocaine with the intent to deliver it.   Appellant argues that the jury

should have believed his testimony that he possessed the cocaine for

personal use, based on the following facts: (1) the 12.81 grams of cocaine

“was not an enormous amount[,]” (2) the Commonwealth’s expert testified

that it was possible to possess that much cocaine for personal use, (3) the

drugs were not packaged for sale and there was no drug distribution

paraphernalia recovered, (4) he testified that he possessed $516 from his

monthly Social Security disability check and was planning to use that money

to buy a “bulk amount” of crack cocaine for his personal use, (6) no police



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officer witnessed Appellant sell drugs or was informed that Appellant sold

drugs, and (7) Appellant did not admit to selling drugs.        See Appellant’s

Brief at 25-31.

      Appellant essentially asks this Court to view the evidence in the light

most favorable to him, and to make credibility determinations different from

those reached by the jury.      Our standard of review does not permit this

Court to do either.     See Koch, 39 A.3d at 1001; Commonwealth v.

Shaver, 460 A.2d 742, 745 (Pa. 1983) (citations omitted) (“It is solely the

province of the trier of fact to pass upon the credibility of witnesses and to

give it such weight as may be accorded to the evidence therein produced.

The factfinder is free to believe all, part or none of the evidence.”).

      Instead, viewing the evidence in the light most favorable to the

Commonwealth, as we must, we conclude that it was reasonable for the jury

to infer that Appellant intended to sell the crack cocaine. Namely, Appellant

was stopped in an area known for drug activity and immediately became

confrontational when approached by police. In his possession, Appellant had

a large quantity of cash ($516), yet admitted to the officers that he did not

have a job.   Appellant also possessed 12.81 grams of crack cocaine.       The

Commonwealth’s expert in narcotics trafficking testified that such a large

amount of cocaine indicated that Appellant intended to sell the drugs. N.T.




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Trial, 5/28/13-5/30/13, at 94-95.2             Moreover, while the drugs were not

packaged in a manner typical for sale, Appellant had no use paraphernalia in

his possession, and he did not appear to the arresting officers to be under

the influence of any drugs. Id. at 80. We conclude that these facts were

sufficient to permit the jury to infer that Appellant possessed the crack

cocaine with the intent to deliver it. See Commonwealth v. Brown, 904

A.2d 925, 932 (Pa. Super. 2006) (finding evidence sufficient to prove the

appellant possessed cocaine with intent to deliver it where he fled from

police; police recovered a plastic bag containing one “large chunk” of cocaine

totaling 5.71 grams; the defendant had $308 on his person, yet told police

he was unemployed; one officer “had knowledge of [the defendant] and his

activities” as a result of the officer’s surveillance of “different drug dealers in

the area;” and, based on these facts, an expert in narcotics trafficking

testified that the defendant intended to sell the cocaine).           Accordingly,

Appellant’s conviction for PWID must stand.

       Appellant next challenges the legality of his sentence, arguing that

application of the mandatory minimum term set forth in 18 Pa.C.S. §



____________________________________________


2
  While Appellant is correct that the officer conceded the drugs could have
been possessed for personal use, he did so reluctantly.            On cross-
examination, the officer was asked, “Is it possible for a person to have this
amount of crack cocaine on their person for personal use and not to deliver
it?” The officer replied: “Anything is possible[,] but in 18 years I’ve never
seen it.” Id. at 99.



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7508(a)(3)(ii)3 violated the United States Supreme Court’s holding in

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

____________________________________________


3
    That mandatory minimum sentencing statute states, in pertinent part:

        (a) General rule.--Notwithstanding any other provisions of this
        or any other act to the contrary, the following provisions shall
        apply:
        …
            (3) A person who is convicted of violating section
            13(a)(14), (30) or (37) of The Controlled Substance, Drug,
            Device and Cosmetic Act where the controlled substance is
            coca leaves or is any salt, compound, derivative or
            preparation of coca leaves or is any salt, compound,
            derivative or preparation which is chemically equivalent or
            identical with any of these substances or is any mixture
            containing any of these substances except decocainized
            coca leaves or extracts of coca leaves which (extracts) do
            not contain cocaine or ecgonine shall, upon conviction, be
            sentenced to a mandatory minimum term of imprisonment
            and a fine as set forth in this subsection:
        …

              (ii) when the aggregate weight of the compound or
              mixture containing the substance involved is at least
              ten grams and less than 100 grams; three years in
              prison and a fine of $15,000 or such larger amount
              as is sufficient to exhaust the assets utilized in and
              the proceeds from the illegal activity; however, if at
              the time of sentencing the defendant has been
              convicted of another drug trafficking offense: five
              years in prison and $30,000 or such larger amount
              as is sufficient to exhaust the assets utilized in and
              the proceeds from the illegal activity; and
        …

        (b) Proof of sentencing.--Provisions of this section shall not
        be an element of the crime. Notice of the applicability of this
        section to the defendant shall not be required prior to conviction,
(Footnote Continued Next Page)


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      According to the Alleyne Court, a fact that increases the
      sentencing floor is an element of the crime. Thus, it ruled that
      facts that mandatorily increase the range of penalties for a
      defendant must be submitted to a fact-finder and proven beyond
      a reasonable doubt. The Alleyne decision, therefore, renders
      those Pennsylvania mandatory minimum sentencing statutes
      that do not pertain to prior convictions constitutionally infirm
      insofar as they permit a judge to automatically increase a
      defendant's sentence based on a preponderance of the evidence
      standard.

Commonwealth v. Thompson, 93 A.3d 478, 493-494 (Pa. Super. 2014)

(quoting Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013)

(footnote omitted)).         The trial court, however, argues that Appellant’s

sentence is not illegal under Alleyne, reasoning:

      As to the weight of the cocaine, the defense stipulated at trial
      that the substance [Appellant] admitted to possessing weighed
      12.81 grams. In support of the stipulation, a crime lab report
      was admitted into evidence without objection. Defense counsel
      even admitted in his closing argument to the jury that the
      weight of the cocaine was 12.81 grams.         Because of the
      stipulation and defense arguments, the weight of the substance
      was never at issue and the sentence imposed is not illegal.

TCO at 2.


                       _______________________
(Footnote Continued)

      but reasonable notice of the Commonwealth's intention to
      proceed under this section shall be provided after conviction and
      before sentencing. The applicability of this section shall be
      determined at sentencing. The court shall consider evidence
      presented at trial, shall afford the Commonwealth and the
      defendant an opportunity to present necessary additional
      evidence and shall determine, by a preponderance of the
      evidence, if this section is applicable.

18 Pa.C.S. § 7508(a)(3)(ii), (b).




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     Recently, in Commonwealth v. Fennell, 2014 WL 6505791 (Pa.

Super. November 21, 2014), this Court held that 18 Pa.C.S. § 7508 is

unconstitutional in its entirety under Alleyne and this Court’s en banc

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

banc) (holding that 18 Pa.C.S. § 9712.1, which has the same format as

section 7508, is unconstitutional in its entirety in light of Alleyne).   See

also Commonwealth v. Cardwell, 2014 WL 6656644 (Pa. Super.

November 25, 2014) (holding that 18 Pa.C.S. § 7508 is unconstitutional for

the same reasons as set forth in Fennell).       The Fennell Court further

clarified that the defendant’s stipulation during trial to the type and total

weight of the narcotics he possessed did not render the Alleyne error

harmless where the statute was unconstitutional, as a whole. Fennell, 2014

WL 6505791, at *5-6.

     In light of Alleyne, Newman, and Fennell, it is clear that Appellant’s

mandatory minimum sentence imposed pursuant to 18 Pa.C.S. § 7508 is

illegal. Consequently, while we affirm Appellant’s underlying convictions, we

vacate his judgment of sentence and remand for resentencing, without

imposition of a mandatory minimum term.

     Judgment     of   sentence   vacated.    Case   remanded    for   further

proceedings. Jurisdiction relinquished.

     Judge Allen joins this memorandum.

     Judge Bowes files a concurring memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2015




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