J-S32003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DARNELL LAMONT KELSO,

                        Appellant                   No. 168 WDA 2014


    Appeal from the Judgment of Sentence Entered December 17, 2013
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0003349-2013


BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED JUNE 26, 2015

     Appellant, Darnell Lamont Kelso, appeals from the judgment of

sentence entered following his convictions of possession of a prohibited

firearm, firearms not to be carried without a license, possession of a

controlled substance with intent to deliver, and simple possession of a

controlled substance. We vacate the judgment of sentence and remand for

resentencing.

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

           This matter arises out of [Appellant’s] arrest on January 3,
     2013 by Pennsylvania State Police after information was received
     that he was selling drugs from a motel room in Monroeville, Pa.
     During the investigation regarding the sale of the drugs, it was
     determined that [Appellant] has several warrants issued for his
     arrest.   [Appellant] was then placed under arrest for the
     warrants and during the arrest it was discovered that [Appellant]
     was in possession of a gun and heroin. [Appellant] filed a
     motion to suppress and a hearing was held on October 29, 2013
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     at which the Commonwealth presented the testimony of Trooper
     Jeffrey Brautigam of the Pennsylvania State Police who testified
     that on January 2, 2013 information was received from a drug
     user that an individual described as a black male using the street
     name of “Fresh” was selling heroin from a room in a local motel.
     (T., p. 3) As a result of the information Trooper Brautigam
     contacted the hotel manager who provided him with
     [Appellant’s] name as the person renting the room. Trooper
     Brautigam then performed a record checks concerning
     [Appellant], including PennDOT and JNET records which included
     [Appellant’s] driver’s history, driver’s license photo and the FBI
     criminal history. (T., p. 4) Trooper Brautigam also determined
     that there were several active warrants issued by various
     magistrates against [Appellant]. (T., p. 14) Trooper Brautigam
     then positively identified [Appellant] as the person whose
     photographs he observed during his records investigation and
     arrested him based on the outstanding warrants. (T., p.p. 16-
     17) Trooper Brautigam testified:

          “[Appellant] was detained.      I immediately asked
          [Appellant] if he had any weapons on him.
          [Appellant] told me that he had a gun stuffed down
          the front of his pants. So then he was then [sic]
          quickly escorted over to the room that we had been
          conducting surveillance, [Appellant] was handcuffed,
          searched, and he was found to have a loaded .45
          caliber pistol stuffed down the front of his pants and
          about eight bundles of heroin.” (T., p. 18)

            On cross examination Trooper Brautigam acknowledged
     that he did not observe [Appellant] involved in any criminal
     conduct and that the arrest was based solely on the basis of the
     outstanding warrants. (T., p. 38) [Appellant] argued that
     Trooper Brautigam did not have the actual warrants in his
     possession and did not follow the appropriate procedure for
     executing a warrant and, therefore, any evidence obtained
     during the arrest should be suppressed. [Appellant’s] motion
     was denied as there is no requirement that the arresting police
     officer actually have in his possession a warrant that was
     previously issued[,] nor was he required to present the warrant
     to the arrestee. Commonwealth v. Gladfelter, 324 A.2d 518,
     519-[5]20 ([Pa. Super.] 1974). In addition, Trooper Brautigam
     was not required to follow the procedures set forth in


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     Pa.R.Crim.P. 431 when it was determined that [Appellant] was in
     possession of the gun and the heroin.

           At trial the Commonwealth incorporated into the record the
     testimony from the suppression hearing and offered the
     following stipulated evidence:

          “On the date in question, which was January 3,
          2013, location the Monroeville Days Inn. I think
          where we left off in the suppression motion was
          Trooper Brautigam was putting [Appellant] under
          arrest for an arrest warrant and found what he
          suspected to be controlled substances and a firearm
          in his pants pocket.      More specifically Trooper
          Brautigam approached [Appellant], [Appellant]
          immediately told Trooper Brautigam [Appellant] had
          a gun stuffed down his pants, that was the front of
          his pants. Trooper Brautigam removed the firearm
          from [Appellant’s] pants. The firearm was loaded
          with one in the chamber with the hammer pulled
          back ready to be fired. The clip was also fully loaded
          with bullets that would match the firearm in
          question.
                 The firearm was submitted to the state police
          crime lab, which would be marked for identification
          purposes as Exhibit 1, in Greensburg and was
          determined to be operable following lubrication and
          cleaning of said firearm, would also satisfy the
          statutory requirements for barrel length, et cetera,
          under the Uniform Firearms Act.
                 Also found inside [Appellant’s] pants pocket
          was eight bundles of heroin, a small bag of
          marijuana and $570. The bundles were submitted to
          the state police crime lab in Greensburg, again be
          referenced as Commonwealth’s Exhibit 2. The lab
          identified the submission as 71 stamped bags
          determined to be 1.9 grams of heroin. The $570
          was in the following denominations: One one-
          hundred dollar bill, one fifty-dollar bill, 21 twenty-
          dollar bills. Two cell phones were recovered from
          [Appellant], no use — should be noted no use
          paraphernalia was recovered from [Appellant].
          [Appellant] told Trooper Brautigam he was basically


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              homeless and did not have a permanent address;
              also indicated unemployed.
                     [Appellant] did not have a license to carry a
              firearm on January 3, 2013. That is established in
              Exhibit 3. [Appellant] was previously convicted of a
              possession with intent to deliver in federal court in
              2008. That is referenced Exhibit 4.
                     That ends the factual stipulations by the
              parties.    Also one additional thing is that the
              Commonwealth would provide expert testimony, City
              of Pittsburgh Narcotic Detective Ed Fallert was
              consulted about the above mentioned admitted
              facts; he is willing to give an opinion that the drugs
              were possessed, namely the 71 stamped bags of
              heroin were possessed with the intent to deliver
              them. Thus defense counsel would stipulate that
              such testimony would be admitted before this court
              on the facts of this case.” (T., pp. 9-11)

             After argument and review of all of the evidence, including
       the testimony from the suppression hearing, [Appellant] was
       found guilty and sentenced on December 17, 2013.

Trial Court Opinion, 1/20/15, at 2-4.

       Prior to trial, the Commonwealth filed a “Notice of Additional Facts

Affecting Mandatory Sentencing” indicating that Appellant’s charge for

possession with intent to deliver was subject to two mandatory minimum

sentences.1 (Docket Entry 8). On December 17, 2013, at the conclusion of

trial, the trial court sentenced Appellant in open court to serve two

mandatory minimum terms of incarceration for the conviction of possession

____________________________________________


1
    The Commonwealth noted that mandatory minimum sentences were
applicable under 18 Pa.C.S. § 7508(a)(7) (relating to weight of the heroin)
and 42 Pa.C.S. § 9712.1 (relating to drug offenses committed with
firearms).



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with intent to deliver.        Specifically, the court sentenced Appellant to a

mandatory minimum term of incarceration of three to six years, and a

concurrent mandatory minimum term of incarceration of five to ten years,

ostensibly both for the conviction of possession with intent to deliver.2      In

addition, the trial court sentenced Appellant to serve a consecutive term of

probation of five years.3       This timely appeal followed.   Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

       Appellant presents the following issue for our review:

       I. DID THE LOWER COURT ERR IN APPLYING THE MANDATORY
       MINIMUM FIVE-YEAR SENTENCE FOR DRUG OFFENSES
       COMMITTED WITH FIREARMS PURSUANT TO 42 Pa.C.S. §
       9712.1 INSOFAR AS THE SENTENCING STATUTE IS VIOLATIVE
       OF THE SIXTH AMENDMENT AND ARTICLE 1 §§ 6 AND 9
       BECAUSE IT AUTHORIZES THE IMPOSITION OF A MANDATORY
       MINIMUM SENTENCE UPON A FINDING, BY A PREPONDERANCE
       OF THE EVIDENCE BY THE SENTENCING JUDGE AT
       SENTENCING, THAT [APPELLANT] POSSESSED A FIREARM
       DURING THE COMMISSION OF A VIOLATION OF SECTION
       13(A)(30) OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE
       AND COSMETIC ACT?

____________________________________________


2
    In his written opinion, the trial judge observed that there was a clerical
error in the sentencing order, which indicated that the five to ten year
mandatory minimum sentence was imposed on the conviction of possession
of a prohibited firearm. Trial Court Opinion, 1/20/15, at 6-8. However, the
trial court clarified that the mandatory five to ten year term of incarceration
was actually imposed on the conviction of possession with intent to deliver.
Id.
3
  We note that, at the time of sentencing, the trial court was not specific as
to which conviction the term of probation was to be applied. However, the
sentencing order reflects that the probationary sentence was for Appellant’s
conviction of firearms not to be carried without a license.



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Appellant’s Brief at 5.

      Appellant argues that the trial court imposed an illegal mandatory

minimum sentence for his conviction of possession with intent to deliver,

specifically for drug offenses committed with firearms.    In support of his

argument that his mandatory minimum sentence is illegal, Appellant cites

the United State Supreme Court’s decision in Alleyne v. United States,

___ U.S. ___, 133 S.Ct. 2151 (2013), as well as this Court’s recent decisions

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

(declaring 42 Pa.C.S. § 9712.1 unconstitutional, as that statute 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), Commonwealth v. Valentine, 101 A.3d 801 (Pa.

Super. 2014) (declaring mandatory minimum sentences set forth in 42

Pa.C.S. §§ 9712 and 9713 were unconstitutional), Commonwealth v.

Cardwell, 105 A.3d 748 (Pa. Super. 2014) (holding trial court erred by

imposing mandatory minimum sentence under Section 7508, even where

parties stipulated to weight of drugs; applying Newman and its progeny,

and concluding that Section 7508(b) is not severable from remainder of

statute; and remanding for resentencing without imposition of mandatory

minimum sentence), and Commonwealth v. Bizzel, 107 A.3d 102 (Pa.




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Super. 2014) (vacating mandatory minimum sentence imposed pursuant to

18 Pa.C.S. § 6317(b) following non-jury trial as a violation of Alleyne).

       The trial court has agreed with Appellant and stated the following:

       Consequently, while the evidence was sufficient to support
       [Appellant’s] convictions and despite the fact that [Appellant]
       stipulated to the facts that supported the imposition of
       mandatory minimum sentences, the statutes on which the
       sentences were based are unconstitutional and resentencing will
       be required.

Trial Court Opinion, 1/20/15, at 10.

       Likewise, the Commonwealth has conceded that, pursuant to the

current case law, it is constrained to agree that Appellant must be

resentenced in this matter.4 Commonwealth’s Brief at 11. Accordingly, we

vacate the judgment of sentence and remand for resentencing.

____________________________________________


4
  We observe that the Commonwealth has included in its appellate brief a
section with the following heading:

       II. COMMONWEALTH V. NEWMAN AND ITS PROGENY WERE
       WRONGLY DECIDED.

Commonwealth’s Brief at 12. The Commonwealth begins its discussion in
this section by stating that “[w]hile your Honorable Court is bound by the
decision of the court en banc in Newman, supra, and by its progeny, the
Commonwealth submits that these decisions are erroneous and should be
reversed by our Supreme Court.” Id.

      Indeed, we must follow the decisional law established by our own
Court. Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super.
2009). Furthermore, we note that recently in Commonwealth v. Hopkins,
98 MAP 2013, ___ A.3d ___ (Pa. filed June 15, 2015), our Supreme Court,
in a direct appeal filed by the Commonwealth from an order of the Court of
Common Pleas, relied upon Alleyne and struck down as unconstitutional the
(Footnote Continued Next Page)


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      Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015




                       _______________________
(Footnote Continued)

mandatory minimum sentencing scheme regarding drug-free school zones
set forth in 18 Pa.C.S. § 6317. In pertinent part, the Court in Hopkins
refused to sever the violative provisions from the statute, which was the
same determination reached by this Court in Newman.



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