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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                  v.                    :
                                        :
TYRONE DWAYNE CURTIS,                   :        No. 1273 EDA 2014
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, May 23, 2013,
            in the Court of Common Pleas of Delaware County
             Criminal Division at No. CP-23-CR-0003550-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MAY 11, 2015

     Appellant appeals the judgment of sentence imposed following his

conviction on drug and firearm offenses.      Finding that appellant was

improperly sentenced under a mandatory minimum sentencing statute that

has since been declared unconstitutional, we will vacate the judgment of

sentence and remand for resentencing.

     The trial court accurately summarized the factual background:

                 On March 24, 2012, Trooper Brian Richardson
           of the Pennsylvania State Police executed a traffic
           stop on a silver Ford Edge SUV that was traveling
           southbound on I-95. Prior to initiating the traffic
           stop, Trooper Richardson clocked the vehicle for over
           0.3 miles traveling 64 mph in a properly posted
           55 mph zone. The Trooper followed the vehicle for
           approximately one mile before activating his
           emergency lights and pulling the vehicle over. A
           registration search revealed the owner of the vehicle
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          was Spallco, a rental company. The vehicle was not
          reported stolen.

                 Upon approaching the driver’s side of the
          vehicle    to    request driver    identification and
          registration information, Trooper Richardson smelled
          the strong odor of raw marijuana. The driver, later
          identified as [appellant], did not have a driver’s
          license or other proof of identification on his person
          and     identified   himself as     “Keith    Williams.”
          [Appellant] provided a Maryland address, date of
          birth and Social Security Number.           [Appellant]
          advised Trooper Richardson that the vehicle was
          rented by a family friend and that he did not have
          any rental documentation. The passenger identified
          himself as John Barrett (the “Defendant”) via his
          Delaware driver’s license.

                Trooper Richardson returned to his patrol
          vehicle and conducted a CLEAN/NCIC query on both
          parties. The search of the name and date of birth
          given by the driver revealed no social security
          number, and a search of the social security number
          provided by driver revealed a different name.
          Criminal history of the passenger, Defendant Barrett,
          revealed an extensive criminal history, including
          drug convictions.

                 Trooper Richardson requested back-up, and an
          officer from Tinicum Police Department arrived on
          scene and pulled in front of the suspect vehicle with
          lights activated.    Trooper Richardson exited his
          patrol vehicle and asked the driver, [appellant], to
          exit the vehicle. Trooper Richardson conducted a
          pat-down search of [appellant] and then requested
          he sit on the bumper of the patrol vehicle.
          Trooper Richardson then approached the passenger
          side of the vehicle and requested that the passenger,
          Co-Defendant Barrett, exit the vehicle. As Barrett
          opened      the    door    to   exit   the    vehicle,
          Trooper Richardson viewed a blue and tan “Polo” bag
          being held up behind Defendant Barrett’s calves
          below the front passenger seat. Trooper Richardson
          conducted a pat-down search and then requested


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            that Barrett go to where driver was sitting in front of
            the patrol car.

                  Trooper Richardson approached [appellant]
            and asked him for consent to search the vehicle.
            [Appellant] signed the Pennsylvania State Police
            Waiver of Rights and Consent to Search form with
            the name “Keith Williams” in the consenter line.

                  After   receiving   consent    to    search,
            Trooper Richardson conducted a hand search of the
            vehicle. A search of the blue and tan polo bag
            revealed it contained 7 containers containing
            suspected Marijuana, one digital scale, 9 empty
            containers commonly used to contain Marijuana, and
            one Bersa 380 ACP handgun which was loaded with
            7 rounds of ammunition.

Trial court opinion, 7/7/14 at 1-2.

      On March 21, 2013, a jury convicted appellant of possession of a

controlled substance with intent to deliver (“PWID”), criminal conspiracy,

receiving stolen property, carrying a firearm without a license, and false

identification to law enforcement authorities.1 On March 22, 2013, the trial

court additionally found appellant guilty of persons not to possess firearms

and driving while license is suspended, DUI related.2       On May 23, 2013,

appellant was sentenced to an aggregate term of 8 to 16 years’

imprisonment    plus   8   years’   probation.   Pursuant   to   42   Pa.C.S.A.



1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903(c), 3925(a), 6106(a)(1),
and 4914(a), respectively.
2
  18 Pa.C.S.A. § 6105 and 75 Pa.C.S.A. § 1543(b)(1), respectively.
Appellant agreed to a bench trial as to the persons not to possess firearms
count and the other count is a summary offense.


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§ 9712.1(a), appellant received a mandatory minimum sentence for PWID of

5 to 10 years because he possessed a firearm with the controlled substance.

     Appellant did not immediately file a notice of appeal.    On March 21,

2014, the trial court granted appellant’s petition to reinstate his direct

appeal rights nunc pro tunc. This timely appeal followed.

     Appellant raises the following issues on appeal:

           I.    Whether     the   Court   erred   in  denying
                 defendant’s Motion to Suppress the marijuana
                 and handgun seized from the blue and tan
                 canvas Polo bag since the investigating officer
                 searched the bag without a search warrant, the
                 requisite probable cause, reasonable suspicion
                 or valid consent[?]

           II.   Whether the trial court’s sentence pursuant to
                 the mandatory minimum statute, is proper and
                 constitutional in light of Alleyne v. United
                 States,    133    S.Ct.   2151   (2013)   and
                 Commonwealth v. Newman, 2014 PA Super
                 178 (2014)[?]

Appellant’s brief at 4. We will address these matters in the order presented.

           Our standard of review in addressing a challenge to
           the denial of a suppression motion is limited to
           determining whether the suppression court’s factual
           findings are supported by the record and whether
           the legal conclusions drawn from those facts are
           correct.     Because the Commonwealth prevailed
           before the suppression court, we may consider only
           the evidence of the Commonwealth and so much of
           the evidence for the defense as remains
           uncontradicted when read in the context of the
           record as a whole. Where the suppression court’s
           factual findings are supported by the record, we are
           bound by these findings and may reverse only if the
           court’s legal conclusions are erroneous. Where . . .
           the appeal of the determination of the suppression


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            court turns on allegations of legal error, the
            suppression court’s legal conclusions are not binding
            on an appellate court, whose duty it is to determine
            if the suppression court properly applied the law to
            the facts. Thus, the conclusions of law of the courts
            below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted), cert. denied, Jones v. Pennsylvania, 562 U.S. 832 (2010).

      The trial court properly denied suppression. In order for a search to

be   deemed    unreasonable   and   unconstitutional,   a   defendant   has   to

demonstrate that he or she has an expectation of privacy in the place that is

searched. Commonwealth v. Edwards, 874 A.2d 1192, 1195 (Pa.Super.

2005).   Instantly, the car that was searched was not owned by appellant,

but was a rental vehicle that appellant claimed was rented by a friend.

However, at the suppression hearing, appellant presented no evidence that

he had permission to operate the vehicle or had any other legitimate

connection to the vehicle.    Under similar circumstances, our courts have

found that no expectation of privacy has been shown.

                  In the instant case, the vehicle was not owned
            by Appellant. The vehicle was not registered in
            Appellant’s name. Appellant offered no evidence
            that he was using the vehicle with the authorization
            or permission of the registered owner. Appellant
            offered no evidence to explain his connection to the
            vehicle or his connection to the registered owner of
            the vehicle. Appellant failed to demonstrate that he
            had a reasonably cognizable expectation of privacy in
            a vehicle that he did not own, that was not



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            registered to him, and for which he has not shown
            authority to operate.

Commonwealth v. Burton, 973 A.2d 428, 436 (Pa.Super. 2009).

            At the suppression hearing, Maldonado bore the
            burden of establishing that he had a reasonable
            expectation of privacy in the automobile. Id. at 435.
            At the suppression hearing, the Commonwealth
            presented only the testimony of Officer Buckman,
            and Maldonado did not present any witnesses. The
            evidence elicited at that time establishes that the
            vehicle was owned by Vasquez. Officer Buckland
            testified, on cross-examination, that Maldonado told
            him that Vasquez was his girlfriend and that they
            lived together at the address to which the vehicle
            was registered. N.T., 7/6/09, at 18-19. However,
            there was no evidence that Maldonado had
            permission from Vasquez to drive the car. When
            Maldonado’s counsel asked Officer Buckman whether
            Maldonado told him that Vasquez had given him
            permission to drive her car, Officer Buckman stated
            only that he did not recall asking Maldonado that
            question. Id. at 19. Of note, although it appears
            that Vasquez attended the suppression hearing,
            Maldonado did not call her to testify that she had
            given Maldonado permission to drive her car on the
            day in question.

                  The fact that Maldonado and Vasquez might
            have lived together and had a romantic relationship
            does not foreclose the possibility that Maldonado was
            driving Vasquez’s vehicle without her knowledge or
            permission.    For that reason, we conclude that
            Maldonado failed to establish an expectation of
            privacy in the vehicle he was driving, which “he did
            not own, that was not registered to him, and for
            which he has not shown authority to operate.” We
            therefore reverse the trial court’s order granting
            Maldonado’s motion to suppress.

Commonwealth v. Maldonado, 14 A.3d 907, 911-912 (Pa.Super. 2011)

(footnotes and citations omitted).


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      Instantly, the car at issue was a rental vehicle not rented in appellant’s

name and appellant did not present evidence that he had the permission of

the person who rented the vehicle to operate it.      Consequently, appellant

has not demonstrated an expectation of privacy and cannot attack the

search as unreasonable and unconstitutional.

      Appellant cites United States v. Kennedy, 638 F.3d 159 (3rd Cir.

2011), cert. denied, Kennedy v. U.S., 132 S.Ct. 997 (2012), for the

proposition that a person who borrows a rental car but is not an authorized

driver under the rental agreement has a reasonable expectation of privacy in

the car. (Appellant’s brief at 9.) Appellant has misread Kennedy. In fact,

Kennedy holds that a person who has the permission of the renter to

operate the rental car, but is not an authorized driver under the rental

agreement, has no expectation of privacy in the vehicle.        Kennedy, 638

F.3d at 165. Thus, Kennedy affords appellant no relief.

      Moreover, even if appellant had an expectation of privacy in the car,

the police had probable cause to search the vehicle.      The police observed

appellant’s vehicle travelling at 64 m.p.h. in an area zoned for 55 m.p.h. for

a distance in excess of three-tenths of a mile. Thus, the police witnessed a

speeding violation pursuant to 75 Pa.C.S.A. § 3368(a), and had probable

cause to conduct a vehicle stop. Thereafter, when the officers approached

the car and detected the strong odor of raw marijuana, they had probable

cause to suspect that appellant’s vehicle contained a controlled substance



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and were permitted to search the vehicle under the automobile exception to

the ordinary warrant requirement. Commonwealth v. Gary, 91 A.3d 102

(Pa. 2014).3

      Appellant cites United States v. Chadwick, 433 U.S. 1 (1977), for

the proposition that the automobile exception to the warrant requirement

does not extend to closed containers found within the automobile and seized

by police.     However, the United States Supreme Court subsequently

overruled Chadwick, permitting closed containers found in the automobile

to be searched.    California v. Acevedo, 500 U.S. 565, 579-581 (1991).

We find that the trial court properly denied suppression.

      We     now   turn   to   appellant’s   second   issue   pertaining   to   the

constitutionality of his mandatory minimum sentence following the decisions

in Alleyne v. United States and Commonwealth v. Newman, 99 A.3d 86

(Pa.Super. 2014). Alleyne held that any fact that served to aggravate the

minimum sentence could not be considered a sentencing factor determined

by the trial court by a preponderance of the evidence, but had to be found



3
   In Gary, our supreme court recently decided that Pennsylvania’s
automobile exception to the warrant requirement was in accord with current
federal jurisprudence; that is, that only probable cause and no exigency
beyond the inherent mobility of a motor vehicle is required to permit a
warrantless vehicle search. We note in passing that the supreme court
issued Gary under the caption “Opinion Announcing the Judgment of the
Court,” which the supreme court commonly employs when rendering a
plurality opinion. However, our reading of Justice Saylor’s concurrence
indicates to us that he fully joins the three-Justice Majority. Consequently,
we do not regard Gary as a plurality opinion.


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by a jury beyond a reasonable doubt.         Newman ruled that Alleyne

specifically rendered the mandatory minimum sentencing provision under

which appellant was sentenced, 42 Pa.C.S.A. § 9712.1, unconstitutional.

      The mandatory minimum sentencing provision at issue reads as

follows:

           (a)   Mandatory sentence.--Any person who is
                 convicted of a violation of section 13(a)(30) of
                 the act of April 14, 1972 (P.L. 233, No. 64),
                 [PWID] known as The Controlled Substance,
                 Drug, Device and Cosmetic Act, when at the
                 time of the offense the person or the person’s
                 accomplice is in physical possession or control
                 of a firearm, whether visible, concealed about
                 the person or the person’s accomplice or within
                 the actor’s or accomplice’s reach or in close
                 proximity to the controlled substance, shall
                 likewise be sentenced to a minimum sentence
                 of at least five years of total confinement.

           (c)   Proof at sentencing.--Provisions of this
                 section shall not be an element of the crime,
                 and notice thereof to the defendant shall not
                 be required prior to conviction, 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 any
                 evidence presented at trial and shall afford the
                 Commonwealth         and    the    defendant   an
                 opportunity     to    present    any    necessary
                 additional evidence and shall determine, by a
                 preponderance of the evidence, if this section
                 is applicable.

42 Pa.C.S.A. § 9712.1(a) and (c).    We note that it is Subsection (c) that

runs afoul of Alleyne because it declares that possession of a firearm is not



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an element of the crime, because prior notice to the defendant is not

required, and because possession is determined by the trial court rather

than the jury and by a preponderance of the evidence rather than beyond a

reasonable doubt.

     The lower court found that appellant’s mandatory minimum sentence

was sustainable pursuant to the rationale in Commonwealth v. Watley, 81

A.3d 108 (Pa.Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa.

2014).   In Watley, the defendant had been convicted by a jury of the

separate offenses of PWID and carrying a firearm without a license. The trial

court imposed the mandatory minimum sentence under 42 Pa.C.S.A.

§ 9712.1 because the appellant possessed a firearm at the time he

committed the PWID offense.     While the Watley court acknowledged that

Alleyne had rendered Section 9712.1 unconstitutional, the court could allow

the mandatory minimum sentence to stand because the concerns of Alleyne

had been addressed by the jury’s separate finding that the appellant

possessed a firearm beyond a reasonable doubt and which offense arose

from the same incident as the PWID offense.          The court below then

concluded that because separate PWID and firearm convictions were also

reached by the jury instantly, the mandatory minimum sentence could

likewise be sustained. We disagree.

     Since the decision in Watley and before this appeal, our court

subsequently decided Newman. Newman held that Alleyne did, in fact,



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render     Section    9712.1     unconstitutional     and   that   sentences   issued

thereunder were improper and must be vacated.               Newman also held that

both Subsections 9712.1(a) and (c) were rendered void over an argument

that Alleyne applied to only Subsection 9712.1(c), “the enforcement arm,”

and not to Subsection 9712.1(a), “the predicate arm.” Newman, 99 A.3d

at 101. Pursuant to that argument, the Commonwealth suggested merely

remanding the case for review by a sentencing jury. Newman rejected that

approach as tantamount to legislating a new enforcement procedure, and

that it was more appropriately the province of the General Assembly to

address. We find that adopting the analysis suggested by Watley likewise

would result in a judicially crafted enforcement arm, allowing the mandatory

minimum sentence to stand where there are separate convictions for PWID

and possession of a firearm. Newman effectively “wiped the slate clean,”

allowing no sentence to stand under Section 9712.1, because that section is

unconstitutional in whole.

         Accordingly, we will affirm the decision as to appellant’s suppression

issue,     but   we   must     vacate   appellant’s    sentence    and   remand   for

resentencing.

         Judgment of sentence as to suppression is affirmed; judgment of

sentence as to sentencing is reversed. Sentence vacated. Case remanded

for re-sentencing. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




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