J-S11021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JUDITH SANTIAGO

                            Appellant                No. 2460 EDA 2014


            Appeal from the Judgment of Sentence March 26, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003129-2013


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 18, 2016

        Judith Santiago appeals from the judgment of sentence imposed on

March 26, 2014, in the Philadelphia County Court of Common Pleas.

Santiago was sentenced to a mandatory minimum term of five to 10 years’

imprisonment1 following her non-jury conviction of one count each of

possession of controlled substances (cocaine), and possession with intent to

deliver (“PWID”) controlled substances (28.96 grams of cocaine). 2       On

appeal, Santiago challenges the legality of her sentence, as well as the

weight and sufficiency of the evidence supporting her convictions.   For the
____________________________________________


1
  See 18 Pa.C.S. § 7508(a)(3)(ii) (mandatory minimum five years’
imprisonment for possession with intent to deliver 10 to 100 grams of
cocaine and a prior drug trafficking offense).
2
    35 P.S. §§ 780-113(a)(16) and (a)(30), respectively.
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reasons below, we vacate the judgment of sentence and remand for

resentencing.

        The facts underlying Santiago’s arrest and conviction are summarized

by the trial court as follows:

              On August 25, 2012, Philadelphia Police officers set up
        surveillance on the corner of Ella and East Cambria streets. The
        police hid inside of an unmarked police car and observed several
        men and women approach Janella Baines, Jorge Santiago,[3] and
        an unidentified male. Baines instructed those who approached
        to wait by a vacant lot because she believed the cops were
        watching. Baines then left the lot and approached [Santiago],
        who was sitting in a lawn chair in front of 234 East Cambria
        [Street].

              [Santiago] and Baines subsequently entered 234 East
        Cambria. Shortly thereafter, the police saw [Jorge] enter 234
        East Cambria. [Santiago], Baines and [Jorge] exited several
        minutes later. [Santiago] returned to her lawn chair while
        Baines spoke briefly with the unidentified male. A woman later
        approached the unidentified male and handed him money in
        exchange for small objects while Baines simultaneously gave
        small objects to another woman in return for money. Several
        minutes later, another man approached and gave the
        unidentified male money in exchange for small objects. The
        unidentified male then entered 234 East Cambria, exited several
        seconds later, and gave the other man more small objects.

              Based on these observations, the police tried to arrest the
        unidentified male but were unable to do so. Nor were the police
        able to arrest the buyers who interacted with the unidentified
        male. The police were able to arrest [Jorge], but they recovered
        no drugs from him. The police also arrested Baines and the
        woman with whom she exchanged. A packet of heroin was
        retrieved from this woman. Although the police did not recover

____________________________________________


3
    The record does not reveal if Jorge Santiago is related to the defendant.




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     any drugs from Baines, they did recover $360 dollars from her
     sweatpants.

           After the police arrested Baines, they approached
     [Santiago]. As the police approached, [Santiago] ran up the
     front steps to 234 East Cambria and tried to lock the door.
     However, the police were able to arrest her before she locked
     the door. The police confiscated $533 from her purse.

            When the police later executed a warrant on 234 East
     Cambria, they found 150 vials of crack cocaine on the dining
     room table. In addition, the police recovered 98 packets of
     cocaine from a Cheetos’s container located behind the living
     room couch. Although a chemist did not weigh the total weight
     of the vials, he estimated that one vial weighed 32 milligrams. A
     narcotics field officer also calculated the total weight of the vials
     by multiplying the weight of one vial by 150 (the total number of
     vials) approximating 4800 milligrams (4.8 grams). He opined
     that [the] 98 packets of cocaine weighed 24.16 grams.
     According to the narcotics officer, the vials and packets together
     weighed approximately 28.96 grams. The police also found mail
     inside of 234 East Cambria addressed to [Santiago]. No mail
     was found in anyone else’s name.

Trial Court Opinion, 2/25/2015, at 2-3 (record citations, footnote and

emphasis omitted).

     Santiago proceeded to a non-jury trial, and on December 20, 2013,

the court found her guilty of the aforementioned charges.        Santiago was

sentenced on March 26, 2014, to a mandatory minimum term of five to 10

years’ imprisonment.   She filed a timely post-sentence motion challenging

both the imposition of the mandatory minimum sentence under Alleyne v.

United States, 133 S.Ct. 2151 (U.S. 2013), and the weight of the evidence.




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After conducting a hearing on May 28, 2014, and August 27, 2014, the court

denied the motion. This timely appeal followed.4

        Preliminarily, we note Santiago’s challenges to both the weight and

sufficiency of the evidence are waived because she failed to raise either

claim    in    her    court-ordered      concise   statement.5   See   Pa.R.A.P.

1925(b)(4)(vii). “It is well established that an appellant’s failure to include

claims in the court-ordered 1925(b) statement will result in a waiver of that

issue on appeal.” Commonwealth v. Carpenter, 955 A.2d 411, 415 (Pa.

Super. 2008).        Accord Commonwealth v. Riggle, 119 A.3d 1058, 1070

(Pa. Super. 2015).        Accordingly, Santiago’s challenges to the weight and

sufficiency of the evidence are waived on appeal.

        Consequently, the sole issue preserved for our review is a challenge to

the legality of her sentence.            Santiago argues the imposition of the

mandatory minimum sentence herein, based upon the weight of the drugs

recovered from her home, is unconstitutional under Alleyne and its

progeny.      See Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super.

2014) (en banc) (“[A] challenge to a sentence premised upon Alleyne …
____________________________________________


4
  On September 18, 2014, the trial court ordered Santiago to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Santiago complied with the court’s directive, and filed a concise statement
on October 9, 2014.
5
 The sole issue set forth in Santiago’s concise statement challenges her
mandatory minimum sentence.       See Preliminary Concise Statement of
Matters Complained of on Appeal, 10/9/2014.



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implicates the legality of the sentence and cannot be waived on appeal.”),

appeal denied, 121 A.3d 496 (Pa. 2015).               For the reasons that follow, we

agree.

        Preliminarily,   however,     we       must   address   the   Commonwealth’s

assertion that this claim is also waived. The Commonwealth contends, first,

Santiago failed to present a coherent argument in her brief on appeal.

Indeed, Santiago asserts she was sentenced under the mandatory minimum

at “18 Pa.C.S. § 9712.” See Santiago’s Brief at 12. We assume Santiago

meant to reference 42 Pa.C.S. § 9712, which provides for a mandatory

minimum sentence when a defendant commits a crime while in possession of

a firearm.6 However, as the Commonwealth points out, “no handguns were

involved” in this case, so Santiago’s citation, in any event, is incorrect.

Commonwealth’s Brief at 12.            Moreover, the Commonwealth emphasizes

Santiago neglected to include a transcript of the sentencing hearing in the

certified record, stating, “[a]ccording to the docket entries, the notes were

never ordered.”      Id.    Consequently, it asserts “[w]ithout the record, this

claim cannot be addressed by the Commonwealth and is unreviewable by

this Court.” Id.

        Ordinarily, we would agree with the Commonwealth.                An appellant

must present this Court with issues that are fully developed and supported

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6
    Indeed, there is no statute codified at 18 Pa.C.S. § 9712.




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by relevant citations, or risk waiver. See Commonwealth v. Einhorn, 911

A.2d 960, 970 (Pa. Super. 2006) (“This Court will not become the counsel

for an appellant, ‘and will not, therefore, consider issues ... which are not

fully developed in [the] brief.’”) (citation omitted), appeal denied, 920 A.2d

831 (Pa. 2007).       Moreover, it is the duty of the appellant to request all

necessary transcripts, and ensure they are included in the certified record.

See Pa.R.A.P. 1911(a).

       However, here, Santiago’s claim implicates the legality of her

sentence.     As noted above, an en banc panel of this Court in Newman,

specifically held “a challenge to a sentence premised upon Alleyne …

implicates the legality of the sentence and cannot be waived on appeal.”

Newman, supra, 99 A.3d at 90.7                 Therefore, even if Santiago had not




____________________________________________


7
  We note the Pennsylvania Supreme Court, by accepting review of two of
this Court’s prior decisions, appears poised to address whether an Alleyne
claim constitutes a non-waivable challenge to the legality of a sentence.
See Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super), appeal granted,
121 A.3d 433 (Pa. 2015) (granting appeal to consider whether the Superior
Court erred as a matter of law when it determined, sua sponte, that
defendant’s mandatory minimum sentence was unconstitutional under
Alleyne); Commonwealth v. Barnes, 105 A.3d 47 (Pa. Super. 2014)
(unpublished memorandum), appeal granted, 122 A.3d 1034 (Pa. 2015)
(granting appeal to consider, inter alia, whether an Alleyne claim raises a
challenge to the legality of sentencing). At this time, however, the holding
of our en banc panel is binding precedent.




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presented the issue on appeal, we could raise the claim sua sponte. For that

reason, her deficient brief does not compel us to waive this claim.8

       Furthermore, contrary to the Commonwealth’s assertion, Santiago did

order the transcript of the sentencing hearing when she filed her notice of

appeal. See Transcript Order Form, 8/28/2014 (requesting transcription of

sentencing hearing held on 3/26/2014).            Upon our inquiry regarding the

status of the missing notes of testimony, this Court was informed that the

court reporter, who was assigned to the hearing, is no longer employed by

the First Judicial District of Pennsylvania and “the notes containing the

information pertaining to [this] case have not been located.”               Letter from

Brenda     Howlett,    Administrative      Technician,   First   Judicial   District   of

Pennsylvania, dated 3/16/2016.           Therefore, we will not fault Santiago for

this clear breakdown in the trial court’s processes.

       In any event, the trial court explicitly stated in its opinion that

Santiago “was sentenced to a mandatory minimum sentence under 18

Pa.C.S. § 7508-Drug Trafficking Sentencing and Penalties.”                  Trial Court



____________________________________________


8
  While Santiago certainly cited the wrong mandatory minimum statute in
her brief, she referenced the correct statute, 18 Pa.C.S. § 7508, in her post-
sentence motion. See Post Sentence Motion, 4/7/2014, at ¶ 2. Moreover,
she presents a coherent, and proper, argument that many, if not all, of
Pennsylvania’s mandatory minimum statutes are unconstitutional under
Alleyne. See Santiago’s Brief at 10-13. Therefore, a simple scrivener’s
error does not impede our review.




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Opinion, 2/25/2015, at 1 n.1.9 Further, the court’s statement is supported

by the Commonwealth’s own assertion in the criminal information, that, with

respect to the PWID charge, “the Commonwealth will proceed under 18

Pa.C.S. 7508 (relating to mandatory sentencing and penalties for drug

trafficking).” Criminal Information, 3/18/2013, at Count 1. Accordingly, the

Commonwealth’s present feigned inability to address this claim is specious at

best.10 Accordingly, we proceed to a review of Santiago’s Alleyne claim.

       In Alleyne, the United States Supreme Court held “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne,

133 S.Ct. at 2155 (emphasis supplied). Applying that mandate, this Court,

sitting en banc in Newman, concluded that Alleyne rendered the
____________________________________________


9
  We note the Commonwealth argues this Court may not rely on the trial
court’s statements in its opinion because the trial court’s opinion is “not part
of the record.”    Commonwealth’s Brief at 13 n.2.           This assertion is
misleading. “While a trial court opinion is not part of the evidentiary record
and cannot be used to add to or contradict evidence in the case, it is part of
the certified record under Pa.R.A.P. 1921, and we may consider it in
conducting our review.” Commonwealth v. Stewart, 84 A.3d 701, 710
(Pa. Super. 2013) (emphasis in original), appeal denied, 93 A.3d 463 (Pa.
2014).
10
    We also point out the trial court acknowledged the Alleyne issue during
the post-sentence hearing, and stated it had determined that all of the
cocaine found in the house was attributed to Santiago so “that the
mandatory that [it] applied was appropriate as it related to the possession
with intent to deliver.” N.T., 8/27/2014, at 5-6. The Commonwealth did not
dispute that Santiago had received a mandatory minimum sentence, nor did
it question the propriety of imposing it based on Alleyne. See id. at 6-7.



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mandatory     minimum    sentencing     provision   at   42   Pa.C.S.   §   9712.1

unconstitutional because      Subsection (c) of that statute permitted the trial

court to determine at sentencing whether the elements necessary to

increase the mandatory minimum sentence, i.e., the defendant possessed or

was in close proximity to a firearm while selling drugs, were proven by a

preponderance of the evidence. See 42 Pa.C.S. § 9712.1(c). Under the

reasoning of Alleyne, the Newman Court explicitly held: “Section 9712.1

can no longer pass constitutional muster.” Newman, supra, 99 A.3d at 98.

Significantly, the Court also found the offensive subsection of the statute

was not severable, thereby invalidating the sentencing statute as a whole.

Id. at 101.

     Since that decision, this Court has held that mandatory minimum

statutes which include the same “proof at sentencing” provisions, permitting

the trial court to find determinative factors under a preponderance of the

evidence      standard   at     sentencing,   are    unconstitutional.        See

Commonwealth v. Bizzel, 107 A.3d 102 (Pa. Super. 2014) (applying

Newman to 18 Pa.C.S. § 6317), appeal denied, 126 A.3d 1281 (Pa. 2015);

Wolfe, supra, (invalidating 42 Pa.C.S. § 9718); Commonwealth v.

Valentine, 101 A.3d 801 (Pa. Super 2014) (applying Newman to 42

Pa.C.S. §§ 9712 and 9713), appeal denied, 124 A.3d 309 (Pa. 2015).

Relevant to this appeal, an en banc panel in Commonwealth v. Vargas,

108 A.3d 858, 876-877 (Pa. Super. 2014) (en banc), appeal denied, 121


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A.3d 496 (Pa. 2015), held that the offensive subsection in 18 Pa.C.S. §

7508, the mandatory minimum statute applied sub judice, rendered that

statute unconstitutional as well.

      Here, while recognizing the problem presented by the mandatory

minimum sentence it applied, the trial court, nevertheless, contends the

sentence it imposed did not contravene the holding in Alleyne because the

court, sitting as fact-finder, “unequivocally found beyond a reasonable

doubt” that Santiago possessed all 28.96 grams of cocaine triggering the

application of the statute. Trial Court Opinion, 2/25/2015, at 6. However,

this Court has declined to carve out an exception to Alleyne when a

defendant is convicted in a non-jury trial. See Bizzel, supra, 107 A.3d at

104 n.2 (vacating mandatory minimum sentence imposed pursuant to 18

Pa.C.S. § 6317(b) following non-jury trial as violative of Alleyne, finding

“[t]he mandate that facts that increase a mandatory minimum are elements

of the crime and are required to be proven beyond a reasonable doubt

applies in both bench trials and jury trials.”).

      Indeed, in Newman, the en banc panel held the mandatory minimum

statute, as a whole, was constitutionally invalid because the offensive

subsection could not be severed from the remaining subsections. Newman,

supra, 99 A.3d at 101.          The Newman Court also concluded, “it is

manifestly the province of the General Assembly to determine what new

procedures must be created in order to impose mandatory minimum


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sentences in Pennsylvania following Alleyne. We cannot do so.” Id. at 102.

To that end, this Court has rejected any attempt to circumvent the

unconstitutionality of the statute by any means short of legislative

amendment. See Valentine, supra, 101 A.3d at 811 (rejecting trial court’s

attempt to cure Alleyne deficiency by asking the jury to determine

sentencing factors; “we conclude … that the trial court performed an

impermissible legislative function by creating a new procedure in an effort to

impose the mandatory minimum sentences in compliance with Alleyne.”).

Therefore, the fact that Santiago’s mandatory minimum sentence was

imposed following a bench trial is of no consequence.

      Accordingly, although we conclude Santiago waived her challenges to

the weight and sufficiency of the evidence, we agree the mandatory

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

Consequently, we vacate the judgment of sentence, and remand for

resentencing without consideration of Section 7508.

      Judgment of sentence vacated.          Case remanded for resentencing

consistent with this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2016

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