J-A06034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DARREN TALBERT

                            Appellant              No. 51 EDA 2014


          Appeal from the Judgment of Sentence November 15, 2013
               In the Court of Common Pleas of Delaware County
      Criminal Division at No(s): CP-23-CR-0004677-2012 and CP-23-CR-
                                 0004680-2012


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED APRIL 01, 2015

        Darren Talbert has filed this direct appeal from his aggregate

judgment of sentence of 6-12 years’ imprisonment followed by 5 years’

probation for drug-related and firearms convictions.   We affirm Talbert’s

convictions.     We remand for resentencing on all convictions, because

Talbert’s mandatory minimum sentences for possession with intent to deliver

a controlled substance (“PWID”)1 are unconstitutional.    See Alleyne v.

United States, ___ U.S. ___, 133 S.Ct. 2151 (2013); Commonwealth v.

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



____________________________________________


1
    35 P.S. § 780-113(a)(30).
J-A06034-15



        On July 12, 2012, Talbert and a co-defendant, Mrwan Mohamed, were

arrested and charged with various offenses in two separate actions. In No.

CP-23-CR-0004680-2012 (“Case I”), Talbert was charged with, inter alia,

three counts of PWID2 and three counts of conspiracy to commit PWID.3

These charges arose from Talbert’s sales of heroin to an undercover police

officer on July 3rd, 11th and 12th of 2012. In No. CP-23-CR-0004677-2012

(“Case II”), Talbert was charged with, inter alia, (1) PWID with regard to 85

bags of heroin discovered in the car he was driving at the time of the third

drug sale, (2) conspiracy to possess the 85 bags of heroin with intent to

deliver,4 (3) possession of a firearm in the car with obliterated marks of

identification (specifically, obliterated serial numbers),5 and (4) carrying a

firearm without a license.6 The trial court denied Talbert’s pretrial motion to

suppress and consolidated Cases I and II for trial. In Case I, the jury found

Talbert not guilty of PWID with regard to the alleged sale on July 3, 2012.

The jury found Talbert guilty of the remaining charges in Case I and Case II.

N.T., 8/16/13, pp. 239-48.
____________________________________________


2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S. § 903.
4
    18 Pa.C.S. § 903.
5
    18 Pa.C.S. § 6117(a).
6
    18 Pa.C.S. § 6106(a)(2).




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     The trial court submitted two special interrogatories to the jury to

determine whether Talbert was eligible for the mandatory minimum

sentence for PWID under 42 Pa.C.S. § 9712.1.         The first interrogatory

inquired whether Talbert or his accomplice, Mohamed, possessed a firearm

when Talbert sold heroin to the undercover officer.     The second inquired

whether the heroin weighed at least one gram but less than five grams, and

whether Talbert or his accomplice, Mohamed, were in possession or control

of a firearm at the time of the offense. With regard to each interrogatory,

the trial court instructed the jury to answer “yes” on the verdict slip if it

found that the Commonwealth proved each element beyond a reasonable

doubt.    N.T., 8/16/13, pp. 213, 215-16.         The jury answered both

interrogatories “yes”. N.T., 8/16/13, p. 249.

     In Case I, based on Talbert’s conviction for PWID on July 12, 2012, the

trial court sentenced him to 5-10 years’ imprisonment, the mandatory

minimum under section 9712.1 for PWID while in physical control or

possession of a firearm.      N.T., 11/15/13, p. 16.       Talbert received

consecutive sentences of 1-2 years’ imprisonment for PWID on July 11, 2012

and 5 years’ probation for conspiracy to commit PWID. Id., p. 16. In Case

II, the court sentenced Talbert to 5-10 years’ imprisonment on his PWID

conviction for the 85 bags of heroin, the mandatory minimum under section

9712.1.   Id., pp. 16-17.   Talbert received a consecutive sentence of 1-2

years’ imprisonment for possession of a firearm with obliterated marks of

identification, a concurrent sentence of 1-2 years’ imprisonment for carrying

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a firearm without a license, and 5 years’ consecutive probation for

conspiracy to commit PWID.         Id.    Talbert’s sentence in Case II ran

concurrently with his sentence in Case I, making his aggregate sentence 6-

12 years’ imprisonment plus 5 years’ probation.      This timely direct appeal

followed. Both Talbert and the trial court complied with Pa.R.A.P. 1925.

      Talbert raises four issues in this appeal:

            1. Did the suppression court err by refusing to
               suppress the contents of a vehicle that was
               unlawfully seized by the police?

            2. Was the evidence insufficient as a matter of law
               to    sustain     [Talbert’s]    convictions     for
               constructively possessing the drugs and firearm
               found inside an air conditioning vent in the vehicle
               he was driving, where DNA evidence proved that
               someone else owned the firearm and the drugs in
               the bag were different than what [Talbert] was
               alleged to have delivered?

            3. Was the evidence insufficient as a matter of law
               to sustain [Talbert’s] conviction for conspiracy?

            4. Should this matter be remanded to correct the
               unconstitutional mandatory minimum sentence
               imposed      on    [Talbert],  pursuant    to
               Commonwealth v. Newman, 2014 Pa. Super.
               178 (Aug. 20, 2014)?

Brief For Appellant, p. 4. Talbert’s counsel stated during oral argument that

he was abandoning his first issue (suppression of the contents of the

vehicle). Therefore, we will not address this question.

      In his second issue on appeal, Talbert argues that the evidence was

insufficient to sustain his convictions in Case II relating to the 85 bags of



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heroin and the firearm found inside the Uplander.        Specifically, Talbert

argues that the evidence does not prove that he was in possession of these

items. We disagree.

      Our standard of review for challenges to the sufficiency of the evidence

is well-settled:

            [W]hether[,] viewing all the evidence admitted at
            trial   in    the  light most     favorable   to  the
            [Commonwealth as the] verdict winner, there is
            sufficient evidence to enable the fact-finder to find
            every element of the crime beyond a reasonable
            doubt. In applying [the above] test, we may not
            weigh the evidence and substitute our judgment for
            the fact-finder. In addition, we note that the facts
            and       circumstances     established     by    the
            Commonwealth need not preclude every possibility
            of innocence. Any doubts regarding a defendant’s
            guilt may be resolved by the fact-finder unless the
            evidence is so weak and inconclusive that as a
            matter of law no probability of fact may be drawn
            from       the    combined     circumstances.    The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted).

      Construed in the light most favorable to the Commonwealth, the

evidence adduced at trial was as follows: Officer McAleer testified that on

July 3rd, 11th and 12th of 2012, while in her undercover capacity, she

purchased six bags of heroin from Talbert, a drug dealer that she knew as

“Money.” N.T., 8/15/13, pp. 147-49, 154-57. On July 11, 2012 and July 12,

2012, Officer McAleer observed Talbert driving the Uplander to each sale

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location.   Id. at 157-60, 165. On July 11, 2012, Talbert was driving by

himself, but on July 12, 2012, he had a passenger in the front seat and two

children in the back seat. Id. at 161. The officer submitted the substance

that she bought from Talbert to a laboratory and confirmed that it was

heroin. Id. at 197, 220-21.

      Other officers performed surveillance of the undercover buys.             N.T.,

8/15/13, p. 189. Detective Bernhardt observed Officer McAleer perform

three undercover buys, Id. at 226-29, but he only saw Talbert’s face on July

11th and July 12th. N.T., 8/16/13, 17. He also watched as Talbert arrived in

the Uplander on July 11th and July 12th. N.T., 8/15/13, pp. 228-30; N.T.,

8/16/13, p. 18. On July 12, 2012, when Officer McAleer signaled, Detective

Bernhardt and assisting officers arrested Talbert and the adult passenger,

Mohamed. N.T. 8/15/13, pp. 230-32; N.T., 8/16/13, pp. 11, 67-71. During

the arrest, the police recovered $570.00 and a cell phone from Talbert and

$16.00 and a cell phone from Mohamed. N.T., 8/16/13, pp. 11, 73-74.

      The following day, Detective Bernhardt found 85 bags of heroin and an

operable firearm together in the air-conditioning vent to the left of the

steering wheel. N.T., 8/15/13, pp. 236-40, 242; N.T., 8/16/13, pp. 41-43.

The 85 packets of heroin had a different stamp (“blackjack”) than the logo

on   the    packets   that   Talbert   sold   to   Officer   McAleer   (“starbucks”).

Mohamed’s DNA was found on the firearm. N.T., 8/16/13, pp. 41-42. In the

center console, Detective Bernhardt found a Visa debit card in Talbert’s


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J-A06034-15


name as well as mail, a receipt, and an impound release form for the

vehicle, all made out to Talbert. N.T., 8/15/13, pp. 244-47; N.T., 8/16/13,

pp. 31-33. Although the vehicle was registered to Aaron Talbert-Wilkinson,

Talbert-Wilkinson had been continuously incarcerated from May 2012

through July 2012. N.T., 8/16/13, p. 60.

      Lieutenant Michael Boudwin of the Narcotics Unit of the Delaware

County CID testified as an expert witness in the field of illegal drugs, drug

investigations, and drug trafficking.        N.T., 8/16/13, pp. 97-98. The

lieutenant provided a detailed description of the global as well as local heroin

market. N.T., 8/16/13, pp. 98-104.       In the lieutenant’s opinion, Talbert

possessed the 85 bags of heroin in the vehicle with the intent to distribute

them, because a user would only buy two to four bags of heroin at a time,

as opposed to 85, and the officers did not recover any indicia of personal use

in the Uplander. N.T., 8/16/13, pp. 104-07.

      In narcotics possession cases,

            ‘the Commonwealth may meet its burden by showing
            actual, constructive, or joint constructive possession
            of the contraband.’ Commonwealth v. Thompson,
            [], 428 A.2d 223, 224 ([Pa.Super.]1981). Actual
            possession is proven ‘by showing ... [that the]
            controlled   substance      [was]    found   on    the
            [defendant’s]    person.’       Commonwealth        v.
            Macolino, [], 469 A.2d 132, 134 (Pa.1983). If the
            contraband is not discovered on the defendant’s
            person, the Commonwealth may satisfy its
            evidentiary burden by proving that the defendant
            had constructive possession of the drug. Id.




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          Our Supreme Court has defined constructive
          possession as ‘the ability to exercise a conscious
          dominion over the illegal substance: the power to
          control the contraband and the intent to exercise
          that control.’ Macolino, 469 A.2d at 134. In the
          words of our Supreme Court, ‘constructive
          possession is a legal fiction, a pragmatic construct to
          deal with the realities of criminal law enforcement.’
          Commonwealth v. Johnson, [], 26 A.3d 1078,
          1093 (Pa.2011) (internal quotations, citations, and
          corrections omitted). It is a ‘judicially created
          doctrine ... [that] enables law enforcement officials
          to prosecute individuals in situations where the
          inference of possession is strong, yet actual
          possession at the time of arrest cannot be shown.’
          Mark     I.   Rabinowitz,     Note,   Criminal    Law
          Constructive        Possession:         Must       the
          Commonwealth            Still     Prove      Intent?—
          Commonwealth v. Mudrick, 60 TEMPLE L.Q. 445,
          499–450 (1987).

          To find constructive possession, the power and intent
          to control the contraband does not need to be
          exclusive to the defendant. Our Supreme Court ‘has
          recognized that constructive possession may be
          found in one or more actors where the item [at]
          issue is in an area of joint control and equal access.’
          Johnson, [] 26 A.3d at 1094 (internal quotations,
          citations, and corrections omitted). Nevertheless,
          ‘where more than one person has equal access to
          where drugs are stored, presence alone in
          conjunction with such access will not prove conscious
          dominion over the contraband.’ Commonwealth v.
          Davis, [], 480 A.2d 1035, 1045 (Pa.Super.1984)
          (emphasis omitted).

          For the Commonwealth to prove constructive
          possession where more than one person has access
          to the contraband, ‘the Commonwealth must
          introduce evidence demonstrating either [the
          defendant’s] participation in the drug related activity
          or evidence connecting [the defendant] to the
          specific room or areas where the drugs were kept.’
          Commonwealth v. Ocasio, [], 619 A.2d 352, 354–

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J-A06034-15


             355 (Pa.Super.1993). However, ‘[a]n intent to
             maintain a conscious dominion may be inferred from
             the totality of the circumstances ... [and]
             circumstantial evidence may be used to establish a
             defendant’s possession of drugs or contraband.’
             Macolino, 469 A.2d at 134–135 (internal citations
             omitted).

Commonwealth v. Vargas, -- A.3d --, 2014 WL 7447678, *8 (Pa.Super.,

Dec. 31, 2014) (en banc) (citations omitted). Constructive possession cases

are fact-sensitive; “a review of case law pertaining to constructive

possession indicates the difficulty of drawing bright lines in this area of the

law.”     Commonwealth       v.   Stembridge,       579    A.2d    901,    904

(Pa.Super.1990).

        The evidence at trial establishes that Talbert was in constructive

possession of the heroin and firearm found in the Uplander. At the time of

Talbert’s arrest, Talbert-Wilkinson, the owner of the Uplander, had been

continuously incarcerated for two months, and there was abundant evidence

that Talbert had been operating the Uplander for an extended period of time

and treated it as if it belonged to him. Talbert’s bank cards and mail were in

the center console along with traffic tickets and a receipt confirming

payment for release of the Uplander from an impoundment yard. On July

11, 2012, Talbert drove the car by himself to the site of his transaction with

Officer McAleer. The next day, Talbert drove the car with Mohamed and two

children in the backseat. On each occasion, Talbert exited the vehicle and

sold heroin to Officer McAleer. There were bags of heroin and a firearm in


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plain view in an air vent directly to the left of the steering wheel, easily

within reach of the driver, Talbert. Collectively, this evidence demonstrates

Talbert’s “ability to exercise conscious dominion over the [heroin and the

firearm],” because he had “the power to control [these items] and the intent

to exercise that control.”     Macolino, supra, 469 A.2d at 134; see also

Commonwealth       v.   Kirkland,    831      A.2d   607,   610   (Pa.Super.2003)

(evidence established that defendant constructively possessed crack cocaine

found in vehicle by officer looking for gun after defendant’s arrest for

assaulting his wife, so as to support conviction for possession of controlled

substance, even though defendant did not own vehicle, arresting officers did

not see defendant in vehicle, cocaine was in back seat of vehicle, vehicle’s

front windows were down, and vehicle was unlocked; defendant’s wife told

officers defendant had arrived in vehicle, defendant possessed keys to

vehicle, cocaine was situated on plate lying in plain view on back seat of

vehicle, and defendant stated “[y]a’ll found narcotics” when officer returned

from investigating vehicle).

      Relying upon Commonwealth v. Juliano, 490 A.2d 891 (Pa. Super.

1985), and Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super.

1982), Talbert argues that the Commonwealth failed to muster sufficient

evidence of constructive possession. In Juliano, police officers searched a

car in which the defendant was a passenger along with three other persons.

The officers seized a satchel on the floor in front of the defendant’s seat


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which contained a counterfeit controlled substance.      This Court held that

there was no evidence, such as furtive movements or attempts to escape,

that indicated the defendant’s knowledge of the satchel’s contents. Juliano,

490 A.2d at 894. Similarly, in Boatwright, a police officer responding to a

call concerning three “suspicious” men in a parked car saw the defendant,

seated in the front passenger seat, “moving towards his left rear.” On the

left rear floor, the officer found a gun registered to a person not in the car.

We held that there was insufficient proof of the defendant’s possession of

the firearm. Boatwright, 453 A.2d at 1058.

      The defendants in Juliano and Boatwright were passengers inside a

vehicle who were only momentarily in close proximity to the items seized by

police.   The defendant in Juliano sat near one unopened satchel on one

occasion without engaging in any suspicious movements or conduct

indicating his control over the satchel.     The defendant in Boatwright sat

near and “moved towards” one gun on one occasion. The evidence in this

case is far different.   Prior to his arrest, Talbert drove the Uplander for

months and treated it as his own by leaving mail and other personalty in the

center console. On the day before and the day of his arrest, he drove the

Uplander to prearranged locations, exited the vehicle, and sold bags of

heroin to an undercover police officer moments later.      Immediately within

reach of the driver’s seat was not one but 85 easily visible bags of heroin,

the same drug that he sold to the undercover officer.            Under these


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circumstances, a jury could reasonably conclude that Talbert’s proximity to

the heroin was more than coincidence, and that he exercised conscious

dominion over the 85 bags of heroin.7

____________________________________________


7
  In addition, Commonwealth v. Johnson, supra, a decision cited in the
table of contents of Talbert’s brief but not discussed in his brief, is
distinguishable from the present case. In Johnson, an undercover police
officer solicited drugs from the defendant. The defendant called a drug
supplier (Wilson), arranged to obtain a single bundle of heroin and met
Wilson on a public street.      Following a conversation, Wilson left the
defendant, retrieved a bundle of heroin from his Buick, and delivered it to
the defendant. The defendant delivered the bundle to the undercover police
officer and returned money to Wilson. Our Supreme Court held that the
defendant was not in constructive possession of a second bundle of heroin
recovered from Wilson’s Buick:

              Importantly, there was no proof presented at trial
              that [the defendant] had any connection to the Buick
              whatsoever as no evidence of any ownership interest
              by him in the Buick was introduced, and he was
              never observed in or near the Buick, at any time
              before or after Wilson’s entry. Likewise, there was
              no evidence brought forward at trial to show that
              [the defendant] had any ability to enter into the
              Buick’s passenger compartment or trunk if he so
              desired. [The defendant] had his own vehicle, and it
              was only Wilson who had a set of keys for the Buick.
              Further, no evidence was offered to indicate [the
              defendant] had any other means of access to the
              Buick via a separate key or a remote entry device.
              Consequently, the totality of the evidence simply did
              not establish the sine qua non for the trial court’s
              finding that [the defendant] was in joint constructive
              possession with Wilson of the second bundle of ‘new
              era’ heroin stored inside the Buick, since the
              evidence did not demonstrate that [the defendant]
              had joint control over, and equal access to, the Buick
              with Wilson, nor did it support an inference that [the
              defendant] had any ability to exercise conscious
(Footnote Continued Next Page)


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      Talbert also suggests that the heroin and the firearm inside the vehicle

belonged to Mohamed instead of him, because the bags of heroin had a

different stamp (“blackjack”) than the stamp on the bags that he sold to

Officer McAleer (“starbucks”), and Mohamed’s DNA was on the firearm. This

evidence might show that Talbert and Mohamed had joint constructive

possession, but it does not show that Talbert lacked constructive possession.

      Individuals can have joint constructive possession of an item of

contraband when they have equal access to the item.                 Macolino, supra,

469 A.2d at 134 (evidence, viewed in totality, demonstrated that husband

maintained conscious dominion over cocaine found in bedroom closet which

he shared with his wife; fact that wife could also have maintained conscious

dominion over cocaine did not preclude conviction of husband, because

possession of illegal substance need not be exclusive; two or more can

possess same drug at same time).                 Because Talbert, the frontseat driver,

was in closer proximity to the heroin and firearm than Mohamed, the

backseat passenger, Talbert arguably had greater access than Mohamed and

thus was in sole constructive possession of these items instead of joint

                       _______________________
(Footnote Continued)

             dominion over the bundle of heroin in the Buick, or
             any power or intent to control it.

Id., 26 A.3d at 1094-95. In contrast, in this case, Talbert obviously had
access to the Uplander and used it to facilitate drug sales, since he drove the
Uplander to the sites of drug transactions with Officer McAleer. Thus,
Johnson does not help Talbert’s cause.



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constructive possession.    At a minimum, Talbert and Mohamed had joint

constructive possession, thus satisfying the possession elements of the

PWID and firearms charges in Case II.          Macolino, supra.         Regardless of

whether Talbert had sole or joint constructive possession, the evidence does

not support his claim that he lacked constructive possession.

      Talbert also argues that he was merely present in the vehicle where

Detective Bernhardt subsequently discovered the 85 bags of heroin and the

firearm.    Mere   presence,    he   continues,     is   insufficient   to   establish

constructive possession of these items.        Brief For Appellant, p. 13 (citing,

inter alia, Commonwealth v. Spencer, 621 A.2d 153, 155 (Pa.Super.1993)

(mere presence of passenger in car insufficient to establish constructive

possession of drugs located in driver side armrest)).             For the reasons

articulated above, the evidence demonstrates that Talbert was not merely

present in the Uplander, but that he treated it as his own and used it to

transport heroin to the sites of drug sales.

      In sum, Talbert’s efforts to recast the evidence in a less damaging

light are unavailing.      The evidence is sufficient to sustain his PWID

conviction in Case II relating to the 85 bags of heroin and his firearms

convictions in Case II.

      In his third issue on appeal, Talbert claims that the evidence was

insufficient to sustain his conspiracy convictions in Cases I and II.             Our




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standard of review is the same as in our preceding discussion of the

constructive possession issue. See Troy, supra.

      A criminal conspiracy exists when “the defendant (1) enter[s] into an

agreement to commit or aid in an unlawful act with another person or

persons, (2) with shared criminal intent and (3) an overt act [is] done in

furtherance of the conspiracy.” Commonwealth v. McCall, 911 A.2d 992,

996 (Pa.Super.2006) (citing 18 Pa.C.S. § 903). The conduct of the parties

and the surrounding circumstances may create a web of evidence linking the

accused to the alleged conspiracy. Commonwealth v. Bricker, 882 A.2d

1008, 1017 (Pa.Super. 2005). A conspiratorial agreement may be inferred

from the relation between the parties, their knowledge of and participation in

the crime, and the circumstances and conduct of the parties surrounding the

crime. Id. This Court has explained the agreement element of conspiracy

as follows:

              The essence of a criminal conspiracy is a common
              understanding, no matter how it came into being,
              that a particular criminal objective be accomplished.
              Therefore, a conviction for conspiracy requires proof
              of the existence of a shared criminal intent. An
              explicit or formal agreement to commit crimes can
              seldom, if ever, be proved and it need not be, for
              proof of a criminal partnership is almost invariably
              extracted from the circumstances that attend its
              activities. Thus, a conspiracy may be inferred where
              it is demonstrated that the relation, conduct, or
              circumstance of the parties, and the overt acts of the
              co-conspirators sufficiently prove the formation of a
              criminal confederation . . . . Even if the conspirator
              did not act as a principal in committing the
              underlying crime, he is still criminally liable for the

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             actions of his coconspirators in furtherance of the
             conspiracy.

McCall, 911 A.2d at 996-97.

        On appeal, the Commonwealth need not preclude every possibility of

innocence, and this Court must affirm the conviction unless “the evidence is

so weak and inconclusive that as a matter of law no probability of fact may

be drawn from the combined circumstances.” Commonweath v. Adams,

39 A.3d 310, 323 (Pa.Super.2012).

        Although Talbert admits that Mohamed traveled with him to the site of

the drug sale on July 12th, Talbert argues that there is no evidence of a

conspiracy, because “there is no evidence. . .that Mohamed actually did

anything.     He was merely present at the scene when [Talbert] was

arrested.”   Brief For Appellant, p. 14 (emphasis in original).   Talbert adds

that the presence of Mohamed’s fingerprint on the firearm, and the

difference in logos between the drugs that Talbert sold to Officer McAleer

from the drugs found in the Uplander, suggest that he and Mohamed were

“independent operators” instead of conspirators. Reply Brief For Appellant,

p. 3.

        Talbert’s self-serving view of the evidence is unavailing.       Mere

presence at the scene of a crime and knowledge of the commission of

criminal acts is not sufficient to establish a conspiracy. In Re V.C., 66 A.3d

341, 349 (Pa.Super.2013). “Nor is flight from the scene of a crime, without

more, enough.”      Id.   On the other hand, these factors, combined with

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other direct or circumstantial evidence, may provide sufficient evidence of a

conspiracy. Id. In this case, Talbert and Mohamed traveled together to the

heroin sale on July 12th, but there is more evidence than Mohamed’s mere

presence. There was a firearm with Mohamed’s fingerprints stuffed in a vent

in plain view next to the driver’s seat, where Talbert sat, along with 85 bags

of heroin bearing a different logo than the drugs that Talbert sold to Officer

McAleer.     These items, and their proximity to Talbert, is circumstantial

evidence of an agreement between Talbert and Mohamed to sell drugs

bearing different logos and to protect themselves in this dangerous

enterprise with Mohamed’s gun.                 This evidence is not “so weak and

inconclusive that as a matter of law no probability of fact may be drawn

from the combined circumstances.”              Adams, 39 A.3d at 323.   We reject

Talbert’s challenge to the sufficiency of the evidence underlying his

conspiracy convictions in Cases I and II.

        In his final argument, Talbert contends that his mandatory minimum

sentence for PWID under 42 Pa.C.S. § 9712.18 is unconstitutional. We find

____________________________________________


8
    Section 9712.1 provides:

              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), 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
(Footnote Continued Next Page)


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Talbert’s PWID sentences in Case I and II unconstitutional based on this

Court’s recent decision in Commonwealth v. Newman, 99 A.3d 86

(Pa.Super.2014), which applies the mandate of the United States Supreme

Court in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013).

      The United States Supreme Court decided Alleyne in June 2013, two

months before Talbert’s trial.         Alleyne held that, other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory minimum must be submitted to a jury and proved

beyond a reasonable doubt.           Id., 131 S.Ct. at 2160-61.     During Talbert’s

trial, the trial court attempted to comply with Alleyne by submitting two

special interrogatories to the jury to determine whether Talbert was eligible

for the mandatory minimum sentence under section 9712.1. The trial court

instructed the jury that the Commonwealth was required to prove all

elements of each interrogatory beyond a reasonable doubt.                 The jury

answered “yes” to each interrogatory.               On November 15, 2013, the trial

court imposed the mandatory minimum sentence pursuant to section 9712.1

in one of Talbert’s PWID convictions in Case I and in his PWID conviction in

Case II.
                       _______________________
(Footnote Continued)

             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.

42 Pa.C.S. § 9712.1(a).



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      Nine months after sentencing, during this direct appeal, we held in

Newman that Alleyne rendered section 9712.1 unconstitutional in its

entirety.   Newman, 99 A.3d at 98 (in view of Alleyne, “plainly, section

9712.1 can no longer pass constitutional muster”). Newman reasoned that

the mandatory minimum prescribed in section 9712.1(a) is not severable

from the “enforcement arm” of the statute, section 9712.1(c). Id. at 101-

03.   Since section 9712.1 is unconstitutional, trial courts must impose

sentence “without consideration of any mandatory minimum sentence

provided by Section 9712.1.” Id. at 103.

      An unconstitutional statute such as section 9712.1 is a nullity; “[i]t is

as if it were never enacted.” Glen–Gery Corp. v. Zoning Hearing Bd. of

Dover Tp., 907 A.2d 1033, 1043 (Pa.2006). When the court sentences the

defendant under an unconstitutional sentence, his sentence is a nullity, and

resentencing is compulsory.    Commonwealth v. Muhammed, 992 A.2d

897, 903 (Pa.Super.2010) (unconstitutional statute is ineffective for any

purpose, because its unconstitutionality dates from time of its enactment,

not merely from date of decision holding it so; trial court lacked statutory

authority to convict and sentence appellant under this provision).

      Because Talbert’s PWID sentences under section 9712.1 are nullities,

we must vacate them.         We do not agree with the Commonwealth’s

contention during oral argument that application of section 9712.1 is mere

harmless error.   As we recently observed in a post-Newman decision, a


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sentence imposed under an unconstitutional statute is per se illegal and

must be corrected:

            [I]f Newman's overriding conclusion is … that
            mandatory minimum statutes in Pennsylvania must
            be    stricken    in    their   entirety   as    facially
            unconstitutional, any discussion of harmless error is
            rendered moot. This is because, once the Court
            concludes that the subsections cannot be severed
            and must all be struck down, there is no statutorily
            authorized sentence upon which a harmless error
            analysis     may      be      applied.    See,      e.g.,
            [Commonwealth v.] Rivera, [95 A.3d 913, 915
            (Pa.Super.2014)]      (stating,    “[i]f no    statutory
            authorization exists for a particular sentence, that
            sentence is illegal and subject to correction[ ]”).

Commonwealth v. Fennell, 105 A.3d 13, 19 n.5 (Pa.Super.2014).

      Furthermore, because vacatur of Talbert’s PWID sentences upsets the

trial court’s entire sentencing scheme, we remand for resentencing on all

counts of conviction.   Commonwealth v. Goldhammer, 517 A.2d 1280,

1281 (Pa.1986) (if appellate court alters overall sentencing scheme, then

remand for resentencing is proper); Commonwealth v. Vanderlin, 580

A.2d 820, 831 (Pa.Super.1990) (if trial court errs in its sentence on one

count in multi-count case, then all sentences for all counts will be vacated

and matter remanded for court to restructure its entire sentencing scheme).

The trial court is certainly not to blame for this development. The trial court

intelligently applied the law in existence at the time of trial and sentencing

and did not have the benefit of our decision in Newman. Resentencing is

necessary despite the trial court’s efforts, not because of them.



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      Convictions affirmed; judgment of sentence vacated; case remanded

for re-sentencing. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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