J-S37027-15


                             2015 PA Super 159

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

FRANK CAPLE,

                        Appellant                 No. 2379 EDA 2014


            Appeal from the Judgment of Sentence June 4, 2014
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0002451-2013


BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

OPINION BY SHOGAN, J.:                              FILED JULY 24, 2015

      Appellant, Frank Caple, appeals from the judgment of sentence

entered in the Court of Common Pleas of Montgomery County. After careful

consideration, we vacate and remand.

      The trial court summarized the procedural and factual history of this

case as follows:

            A Criminal Complaint was filed February 16, 2013 against
      [Appellant], charging him with two counts of Possession with
      Intent to Deliver a Controlled Substance1; three counts of
      Possession of a Controlled Substance2; Possession of Drug
      Paraphernalia3; and Simple Assault4. After a 3-day jury trial,
      [Appellant] was found guilty of all charges on December 17,
      2013.
            1
               35 P.S. § 780-113(a)(30) – One count of
            Possession with the Intent to Deliver Cocaine; and
            one count of Possession with Intent to Deliver
            Oxycodone.
J-S37027-15


          2
            35 P.S. §780-113(a)(16) - One count of Possession
          of Cocaine; one count of Possession of Oxycodone;
          and one count of Possession of Marijuana.
          3
              35 P.S. §780-113(a)(33)
          4
              18 Pa.C.S.A. §2701(a)(1)

           The events leading to these charges began on February
     16, 2013, at approximately 7:00 a.m.           That day, Officer
     Jonathan Gallagher, was dispatched to America’s Best Value Inn
     (hereinafter “the Inn”) located in Pottstown, Montgomery County
     for a report of a domestic assault. Upon arriving at the Inn,
     Officer Gallagher joined two other officers and spoke with
     Yolanda Smith and Anthony King, who were occupying room
     115. From this conversation, Officer Gallagher learned that an
     assault had just occurred. Neither Smith nor King was involved
     in the assault and they directed Officer Gallagher to room 210 of
     the Inn. However, the manager at the Inn indicated that room
     210 was vacant. Since the victim was not located yet, Officer
     Gallagher asked the manager to open the door to room 210
     nevertheless. It was apparent that room 210 was in fact vacant,
     but shortly thereafter, Officer Gallagher heard a radio
     transmission that the victim could possibly be located in room
     215.

           Officer Gallagher proceeded to room 215 and although the
     curtains were drawn, they were open enough that he could see
     there was a light on. He began to knock very loudly and
     announced “police” in his attempt to locate the victim. After
     doing this several times, to no avail, Officer Gallagher asked the
     manager to open the door. He then located a female, Gail
     Benedetto, in the bathroom. Ms. Benedetto was not the assault
     victim, however while he was in room 215, Officer Gallagher
     heard through transmission that the victim had been located.

           Officer Gallagher noticed there were two metal crack pipes
     on top of a dresser in room 215. At that point, Ms. Benedetto
     was taken from the room in order to secure it while a search
     warrant was applied for. Found during the execution of the
     search warrant were: two cell phones located on the sink in
     room 215; a stack of business cards that said “Flip
     Entertainment,” along with a telephone number printed on the
     cards; the two metal crack pipes mentioned earlier; a Western

                                   -2-
J-S37027-15


     Union receipt indicating Frank Caple sent $100 to Amber Fuller;
     a ceramic plate, razor blade, piece of a straw, blue pill bottle,
     small black glassine packaging baggies, and a bag of marijuana,
     all found in the desk drawer; a blue backpack containing men’s
     clothing and two dirty socks with large chunks of a white
     substance inside; a black and orange backpack containing a pack
     of Newport cigarettes surrounded by unused pink and red Ziploc
     baggies; a red jacket with several small baggies that contained a
     white substance found inside; and a pair of men’s Dickie pants
     with “Flip Company Home Remodeling” business cards sticking
     out of them. Testing done on several of the items seized and
     submitted to National Medical Services Laboratory provided a
     positive result for Cocaine, Oxycodone, and Marijuana.

            While the search of room 215 was occurring, the victim of
     the assault, Cicely McCarty was taken to the police station.
     Officer Gallagher met her at the station and noticed her face was
     swollen, she had a cut on her lip, and she was upset. lt was
     discovered that Ms. McCarty was doing drugs in room 115 and
     ended up sleeping there on the floor.         The next morning,
     February 16, 2013, [Appellant] (identified as “Frank” or “Flip”)
     called room 115 and told Ms. McCarty to leave. About two
     minutes later, [Appellant] came downstairs to room 115 and
     engaged in a verbal and physical fight with Ms. McCarty. As she
     left, Ms. McCarty called the cops. This call was what initially led
     Officer Gallagher to the Inn and resulted in the charges filed
     against [Appellant].

           After [Appellant] was found guilty of all counts, he was
     sentenced on June 4, 2014. Due to the uncertainty of this
     Commonwealth’s status on mandatory minimum sentences as a
     result of the Supreme Court’s novel decision in Alleyne v. United
     States, 133 S. Ct. 2151 (2013), this court entered a sentence
     that was comprised of two mandatory minimum sentences.
     However,      recognizing that    future    decisions    in    this
     Commonwealth may change the constitutionality of [Appellant’s]
     mandatory minimum sentence, we provided an alternate
     sentence.

           Accordingly, we imposed the following sentence.       For
     Count One – Possession with Intent to Deliver Cocaine,
     [Appellant] received a mandatory minimum sentence of 3 to 10
     years due to the category of weight in which the jury indicated
     on the verdict slip; a consecutive 2 to 10 year mandatory

                                    -3-
J-S37027-15


      minimum sentence for Count Two - Possession with Intent to
      Deliver Oxycodone; and a concurrent 6 to 24 month sentence for
      Count Seven - Simple Assault. The court made a determination
      of guilt without further penalty for the Possession of
      Paraphernalia charge, and the three Possession of Controlled
      Substance charges merged for sentencing purposes.

           We then issued the following alternative sentence in the
      event 42 Pa.C.S.A. §7508(a)(3)(ii) and §7508(a)(2)(i) were
      found to be unconstitutional. [Appellant] shall serve 21 to 120
      months for Possession with Intent to Deliver Cocaine; and 18 to
      120 months for the Possession with intent to Deliver Oxycodone
      charge. All other sentences would remain the same.

             [Appellant] filed timely a Post-Sentence Motion on June
      16, 2014, which was denied by this court on July 23, 2014. The
      instant Notice of Appeal was filed on August 19, 2014, which
      prompted this court to direct [Appellant] to produce a statement
      of issues in conformance with Pennsylvania Rule of Appellate
      Procedure 1925(b). [Appellant] has since complied with that
      directive.

Trial Court Opinion, 12/1/14, at 1-5 (internal citations and some footnotes

omitted).

      Appellant presents the following issues for our review:

      Did the trial court abuse its discretion when it denied Appellant’s
      motions to suppress evidence found in Room 215 and in
      Appellant’s backpack?

      Did the trial court impose an illegal sentence upon Appellant
      when it imposed the mandatory minimum sentence requested by
      the Commonwealth where said mandatory sentence statute was
      unconstitutional?

Appellant’s Brief at 4.

      Appellant first maintains that the trial court erred in denying his

motion to suppress evidence found in Room 215.        Appellant’s Brief at 32.

Appellant argues that officers had no reason to lawfully enter Room 215.


                                     -4-
J-S37027-15



Id. at 23. Specifically, Appellant contends that the police were not justified

in entering Room 215 at the Inn, “as there were no exigent circumstances

extant that would have justified the officers’ entry into that room without

probable cause or a search warrant.” Id. Appellant asserts that although

the police contend that their reason for entering Room 215 without a

warrant was their concern for the safety of the alleged victim, the police

knew that the alleged victim was no longer at the Inn. Id. As a result, the

officers had no reason to believe that the alleged victim was in Room 215 of

the Inn.   Id.   Appellant argues that any items seen in the room by the

officers could not be used in a supporting affidavit for a search warrant,

thereby    rendering   the   subsequent   search   warrant   for   Room   215

constitutionally invalid and requiring that the results of the search be

suppressed as fruit of the poisonous tree. Id. at 23-24.

      The standard of review an appellate court applies when considering an

order denying a suppression motion is well established. An appellate court

may consider only the Commonwealth’s evidence and so much of the

evidence for the defense as remains uncontradicted when read in the

context of the record as a whole.     Commonwealth v. Russo, 934 A.2d

1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d

75 (Pa. 2004)). Where the record supports the factual findings of the trial

court, the appellate court is bound by those facts and may reverse only if

the legal conclusions drawn therefrom are in error. Id. However, it is also



                                    -5-
J-S37027-15


well settled that an appellate court is not bound by the suppression court’s

conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455

(Pa. 2003)).

             With respect to factual findings, we are mindful that it is
       the sole province of the suppression court to weigh the credibility
       of the witnesses. Further, the suppression court judge is entitled
       to believe all, part or none of the evidence presented. However,
       where the factual determinations made by the suppression court
       are not supported by the evidence, we may reject those findings.
       Only factual findings which are supported by the record are
       binding upon this [C]ourt.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)

(citations omitted).       In addition, we are aware that questions of the

admission and exclusion of evidence are within the sound discretion of the

trial court and will not be reversed on appeal absent an abuse of discretion.

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).                   In

appeals from suppression orders, our scope of review is limited to the

evidence presented at the suppression hearing. In the Interest of L.J., 79

A.3d 1073, 1088–1089 (Pa. 2013).1

       The Fourth Amendment protects “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches

and seizures.”       U.S. Const. amend. IV; Pa. Const. art. 1, § 8.          “The
____________________________________________


1
  Our Supreme Court in L.J. clarified that the scope of review of orders
granting or denying motions to suppress is limited to the evidence presented
at the suppression hearing. The suppression hearing in this case post-dates
L.J., so L.J. is applicable here. Commonwealth v. Davis, 102 A.2d 996,
999 n. 5 (Pa. Super. 2014).



                                           -6-
J-S37027-15


protection of the Fourth Amendment does not depend on a property right in

the invaded place but does depend on whether the person who claims the

protection of the Amendment has a legitimate expectation of privacy in the

invaded place.” Commonwealth v. Brundidge, 620 A.2d 1115, 1118 (Pa.

1993) (citing Rakas v. Illinois, 99 S.Ct. 421, 430 (1978)).

             An expectation of privacy is present when the individual,
      by his conduct, exhibits an actual (subjective) expectation of
      privacy and that the subjective expectation is one that society is
      prepared to recognize as reasonable.             The constitutional
      legitimacy of an expectation of privacy is not dependent on the
      subjective intent of the individual asserting the right but on
      whether the expectation is reasonable in light of all the
      surrounding circumstances.        Additionally, a determination of
      whether an expectation of privacy is legitimate or reasonable
      entails a balancing of interests.

Brundidge, 620 A.2d at 1118 (internal citations and quotation marks

omitted). Also, the Supreme Court has stated that “a guest in a motel or

hotel room has a legitimate expectation of privacy during the period of time

it is rented.” Id.

      As a general rule, “a search warrant is required before police may

conduct any search.” Commonwealth v. White, 669 A.2d 896, 900 (Pa.

1995). Absent the application of one of a few clearly delineated exceptions,

a   warrantless      search   or   seizure   is   presumptively   unreasonable.

Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007). This is the law

under both the Fourth Amendment to the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution. Id.




                                       -7-
J-S37027-15


      One such exception to our well-established warrant requirement is

“exigent circumstances,” which this Court has explained, as follows:

      The exigent circumstances exception to the warrant requirement
      recognizes that some situations present a compelling need for
      instant arrest, and that delay to seek a warrant will endanger
      life, limb[,] or overriding law enforcement interests. In these
      cases, our strong preference for use of a warrant must give way
      to an urgent need for immediate action.

                                    ***

      Other factors may also be taken into account, such as whether
      there is hot pursuit of a fleeing felon, a likelihood that evidence
      will be destroyed if police take the time to obtain a warrant, or a
      danger to police or other persons inside or outside the
      dwelling.

Commonwealth v. Richter, 791 A.2d 1181, 1184-1185 (Pa. Super. 2002)

(emphasis added). “An inquiry to determine whether exigent circumstances

exist involves a balancing of the individual’s right to be free from

unreasonable intrusions against the interest of society in investigating crime

quickly and adequately.” Commonwealth v. Hinkson, 461 A.2d 616, 618

(Pa. Super. 1983).    “It requires an examination of all of the surrounding

circumstances in a particular case.” Id. (citing Commonwealth v. Harris,

239 A.2d 290, 292 (Pa. 1968)).

      “One of these circumstances is when the police reasonably believe that

someone within a residence is in need of immediate aid.” Commonwealth

v. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013) (citing Commonwealth v.

Galvin, 985 A.2d 783, 795 (Pa. 2009)).          Indeed, Pennsylvania courts




                                     -8-
J-S37027-15


specifically have singled out domestic disputes as a situation that may give

rise to exigency:

      “It is widely recognized that situations involving the potential for
      imminent physical harm in the domestic context implicate
      exigencies that may justify limited police intrusion into a
      dwelling in order to remove an item of potential danger.”
      Commonwealth v. Wright, 742 A.2d 661, 664 (Pa. 1999).
      The relevant inquiry is “whether there was an objectively
      reasonable basis for believing that medical assistance was
      needed, or persons were in danger[.]” Michigan v. Fisher, 558
      U.S. 45, 49 (2009) (citation and quotation marks omitted).
      “[T]he calculus of reasonableness must embody allowance for
      the fact that police officers are often forced to make split-second
      judgments—in circumstances that are tense, uncertain, and
      rapidly evolving.” Ryburn v. Huff, 132 S.Ct. 987, 992 (2012)
      (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).

Potts, 73 A.3d at 1280-1281 (citations modified).

      In the instant case, officers were responding to a domestic assault

report at the Inn. N.T., 12/9/13, at 25. When the victim called 911, she

sounded “extremely hysterical.”      Id.   The victim stated she had been

assaulted by a black male named “Flip,” and that the assault had occurred at

the Inn. Id. The victim also stated that “she could not give her location.”

Id. The victim stated that the assault occurred in Room 115 of the Inn. Id.

The victim also stated on her call that she had been in Rooms 115 and 215

at the Inn. Id. at 52.

      When officers arrived at Room 115, the victim was not discovered.

N.T., 12/9/13, at 28. The occupants of that room directed officers to Room

210. Id. at 29. After discovering that Room 210 was vacant, the officers

received information from the dispatcher that the victim could be located in

                                     -9-
J-S37027-15


Room 215. Id. at 29, 130, 152. During the investigation, the officers also

learned that Flip had another room at the Inn: Room 215. Id. at 130. At

this point, the victim still had not been located. Id. at 29-30. As a result,

the officers proceeded to Room 215. Id. at 30.

      When officers arrived at Room 215, although the curtains to the room

were drawn, they were open enough so that officers could see that there

was a light on in the room.      N.T., 12/9/13, at 30-31.      The officers heard

movement in the room as well. Id. at 30. The officers knocked on the door

and announced themselves, but the occupant refused to open the door. Id.

at 31. The officers directed the Inn manager to open the door.             Id. The

officers entered Room 215 under the belief that the victim may be in that

room and was possibly in danger or in need of aid. Id. at 31. At the time

they entered Room 215, they also had not been able to locate the

perpetrator of the assault. Id. at 31. Officer Gallagher testified that after

he   had   made   entry   into   the   room     and   discovered   Gail   Benedetto

(“Benedetto”) hiding in the bathroom, he heard a radio transmission that the

victim had been located. Id. at 32.

      Reviewing the totality of these circumstances, we conclude that police

were justified in their warrantless entry of Room 215 at the Inn.              The

exigency in this case was created by the information received by officers

that led them to believe that an act of domestic violence had occurred.

Specifically, this information created a reasonable belief that the victim was


                                       - 10 -
J-S37027-15


in need of the officers’ assistance.    Potts, 73 A.3d at 1280-1281.   Before

entering Room 215, the officers had not located the perpetrator of the

assault or the victim.   The information relayed to officers established that

Room 215 was connected to the victim and the perpetrator, and officers

properly conducted their search of that room for purposes of excluding it as

the victim’s location.   These exigent circumstances allowed the officers to

take “immediate action” and enter Room 215 without a warrant to prevent

further harm.

       Furthermore, we find no merit to Appellant’s argument that the

officers had evidence that the victim was no longer at the Inn and thus had

no basis to continue the search for her there.       The evidence of record

establishes that the officers were receiving multiple reports from several

sources regarding this incident.   While the evidence of record reveals that

officers had a report that the victim was no longer at the Inn, the officers

also had a report that the victim and “the male” were still in a room at the

Inn.   N.T., 12/9/13, at 78-80. The victim was less than forthcoming with

information regarding her whereabouts due to her concern about an

outstanding probation violation warrant. Id. at 57, 83. The victim also told

the 911 dispatcher that she did not know where she was. Id. Moreover,

Officer Gallagher provided the following explanation on cross-examination as

to why he did not discredit the information that the victim was at the Inn

based solely on the victim’s statement that she was no longer at the Inn:


                                       - 11 -
J-S37027-15


      Again, because sometimes people lie to me. I have a victim to
      find. I need to make sure she’s okay. It’s similar to when
      people have 911 hang-ups. They say everything is okay. We
      still go to make sure that someone is not holding a gun to their
      head saying you better tell them everything is okay.

Id. at 83. As our Supreme Court has stated, “[c]ourts have recognized the

combustible nature of domestic disputes, and have accorded great latitude

to an officer’s belief that warrantless entry was justified by exigent

circumstances when the officer had substantial reason to believe that one of

the parties to the dispute was in danger.” Commonwealth v. Davido, 106

A.3d 611, 622 (Pa. 2014). Moreover, courts have recognized that deference

to officers’ on-the-spot reasonable judgments is particularly warranted in

domestic disputes.     Id.   Thus, despite this conflicting testimony, we

conclude that under the totality of the circumstances, the police were

justified in their warrantless entry of Room 215.

      Once lawfully in the motel room, officers saw two crack pipes in plain

view on the dresser. We apply the following test to determine whether the

plain view exception to the warrant requirement applies:

      For the exception to be present, initially, the officer must not
      have violated the Fourth Amendment in arriving at the place
      from which the evidence could be plainly viewed. Moreover, two
      additional conditions must be satisfied to justify the warrantless
      seizure. First, the incriminating character of the item must be
      immediately apparent. Also, the officer must have a lawful right
      of access to the object itself.

Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009) (quotation

marks and citations omitted).


                                    - 12 -
J-S37027-15


      As mentioned, the officers lawfully arrived in the motel room during

their search for the victim. Additionally, the incriminating character of the

crack pipe was immediately apparent to Officer Gallagher and the officer had

a lawful right of access to the object itself. Turner, 982 A.2d at 92. Thus,

we conclude that the officer lawfully discovered the crack pipes in plain view

in Room 215.

      Moreover, based on the identification of the crack pipes, the officers

secured the room and applied for a search warrant for Room 215.              “[A]

warrant must describe the place to be searched and the items to be seized

with specificity, and the warrant must be supported by probable cause.”

Commonwealth v. Waltson, 724 A.2d 289, 292 (Pa. 1998). “In order to

obtain a valid search warrant, the affiant must establish probable cause to

believe that execution of the warrant will lead to the recovery of contraband

or evidence of a crime.” Commonwealth v. Janda, 14 A.3d 147, 157 (Pa.

Super. 2011).    We review the issuing authority’s decision in light of the

totality of the circumstances:

      Pursuant to the “totality of the circumstances” test set forth by
      the United States Supreme Court in [Illinois v. Gates, 462 U.S.
      213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)], the task of an
      issuing authority is simply to make a practical, commonsense
      decision whether, given all of the circumstances set forth in the
      affidavit before him, including the veracity and basis of
      knowledge of persons supplying hearsay information, there is a
      fair probability that contraband or evidence of a crime will be
      found in a particular place. ... It is the duty of a court reviewing
      an issuing authority’s probable cause determination to ensure
      that the magistrate had a substantial basis for concluding that
      probable cause existed. In so doing, the reviewing court must

                                     - 13 -
J-S37027-15


      accord deference to the issuing authority’s probable cause
      determination, and must view the information offered to
      establish probable cause in a commonsense, non-technical
      manner.

Id. at 157-158.

      Here, the warrant identifies the place to be searched as follows:

            America’s Best Value Motel Room #215. This motel is
      located at 29 High St. Pottstown Borough Montgomery County,
      PA 19464. Room #215 is located on the upper level of the
      motel on southeast corner of the complex. Room #215 has a
      green door with “#215” marked on the [front].

Commonwealth’s Suppression Exhibit 2, Search Warrant, 2/16/13, at 1. The

items to be searched and seized were identified as drugs and drug

paraphernalia. Id. As such, the search warrant described the place to be

searched and the items to be seized with specificity.

      Additionally, Officer Gallagher executed an affidavit of probable cause

in support of the search warrant. Commonwealth’s Suppression Exhibit 2,

Jonathan Gallagher Affidavit, 2/16/13, at 1-2.    In addition to outlining the

circumstances of his investigation that led him to Room 215, the affidavit

included the following statement regarding what Officer Gallagher observed

once in Room 215:

            While speaking with Benedetto, I noticed in Plain View on
      top of the room’s dresser, two metal pipes. These pipes are
      consistent with those I have seen in my career, to be Crack
      Cocaine smoking pipes. The ends of the pipes were charred and
      appeared to have copper mesh inside.

           Benedetto stated that she had been allowed to stay in this
      room by “Flip”. She claimed to not know where “Flip” was.


                                    - 14 -
J-S37027-15


      Benedetto stated that she has been staying in this room for 2
      days.

Id. at 2. Officer Gallagher presented the following conclusion in requesting

the search warrant:

             Based on the above facts and circumstances which I
      believe to be true and correct, I believe that there is drug
      activity presently going on inside Room #215 of the America’s
      Best Value Motel. I further believe that the Crack Cocaine
      smoking pipes are evidence of such activity.

            At this time I respectfully request that a SEARCH
      WARRANT be issued for ROOM #215 of the AMERICA’S BEST
      VALUE MOTEL, in order to seize the evidence in plain view and
      any other evidence that is concealed, showing the drug activity
      that is going on in this particular room. THIS MOTEL ROOM IS
      LOCATED IN THE BOROUGH OF POTTSTOWN, MONTGOMERY
      COUNTY, PA 19464.

            I believe this search warrant is necessary to seize the
      evidence and prosecute those parties involved.

Id.

      The evidence of record establishes that the search warrant identified

the area to be searched and items to be seized with specificity, and it was

supported by probable cause. Accordingly, the search warrant was properly

issued.

      Upon search of the room, Officers discovered the previously described

drugs and paraphernalia.    Because the warrant was properly issued, we




                                   - 15 -
J-S37027-15


cannot agree that the trial court erred in denying Appellant’s motion to

suppress this evidence.2 Therefore, Appellant’s first claim lacks merit.

       In his second issue, Appellant argues that the judgment of sentence

imposed against him is illegal. Appellant’s Brief at 33. Appellant contends

that the mandatory minimum three-year sentence imposed pursuant to 18

Pa.C.S. § 7508 has been held unconstitutional following the decision of

Alleyne v. Unites States,           U.S.    , 133 S.Ct. 2151 (2013). Id. Appellant

further maintains that this Court has held that 18 Pa.C.S. § 7508 is

unconstitutional following the Alleyne decision.            Id.   Thus, Appellant

argues, his sentence should be vacated and his case should be remanded to

the trial court for re-sentencing. Id. at 34. Furthermore, Appellant asserts

that the trial court’s alternate sentence should not be imposed by this Court

on appeal. Id.

       The Commonwealth agrees3 with Appellant’s assertion that the initial

sentence imposed upon Appellant is illegal in light of Alleyne and the

____________________________________________


2
   In his statement of questions involved, Appellant avers that the officers
illegally searched the backpack that was in Room 215. Appellant’s Brief at
4. Appellant, however, fails to develop any argument on the alleged
unlawful search of the backpack in his appellate brief. We note that the
search of the backpack in Room 215 was lawfully conducted.
Commonwealth v. Reese, 549 A.2d 909, 911 (Pa. 1988) (“Where a search
warrant adequately describes the place to be searched and the persons
and/or things to be seized the scope of the search “extends to the entire
area in which the object of the search may be found” and properly includes
the opening and inspection of containers and other receptacles where the
object may be secreted.”).



                                           - 16 -
J-S37027-15


related cases of this Commonwealth. The trial court also acknowledged that

in light of recent caselaw, its “effort at the time of the instant trial in

submitting the weight determinations for the jury to determine beyond a

reasonable doubt on the verdict sheet has not proven to be a viable solution

to Alleyne.” Trial Court Opinion, 12/1/14, at 20.

      This   Court      has    ruled    that     section   7508,   in   its   entirety,   is

unconstitutional.      Commonwealth v. Cardwell, 105 A.3d 748, 755 (Pa.

Super. 2014); Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(en banc).     As such, the trial court’s reliance upon section 7508 when

sentencing Appellant was error, necessitating that we vacate Appellant’s

sentence.

      We must next consider whether we should remand this case for

resentencing or impose the alternate sentence that the trial court issued.

Both the trial court and the Commonwealth urge us to adopt the alternate

                       _______________________
(Footnote Continued)
3
  In its brief, the Commonwealth provides the following discussion on
Appellant’s second issue:

            The       Commonwealth    maintains   its position that
      Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
      (en banc), and its progeny, including Commonwealth v.
      Fennell, 105 A.3d 13 (Pa. Super. 2014), were improperly
      decided.      It acknowledges, however, that they are binding
      precedent at this time.        Accordingly, the Commonwealth
      concedes that the sentence, pursuant to the aforementioned
      cases, is illegal.

Commonwealth’s Brief at 10.



                                           - 17 -
J-S37027-15


sentence issued in conjunction with the initial sentence in anticipation of that

sentence being deemed illegal pursuant to Alleyne and its progeny. Trial

Court Opinion, 12/1/14, at 20-21; Commonwealth’s Brief at 10-11.

Appellant, however, asserts that the matter should be remanded for re-

sentencing by the trial court. Appellant’s Brief at 35.

      We note the following tenets regarding a vacated sentence. When a

sentence is vacated it is rendered a legal nullity.       Commonwealth v.

Wilson, 934 A.2d 1191, 1196 (Pa. 2007). In Wilson, the Supreme Court

ruled that the Commonwealth could introduce evidence in support of a

sentencing enhancement after remand that it did not introduce at the first

sentencing proceeding. Id. at 1198. Once the initial sentence is vacated,

the admissibility of evidence at the second sentencing hearing becomes a

matter committed to the sound discretion of the trial court, as no restraints

are placed upon the trial court’s exercise of its discretion in this regard. Id.

Furthermore, we have explained that “[w]hen a sentence is vacated and the

case is remanded to the sentencing court for resentencing, the sentencing

judge should start afresh.” Commonwealth v. Jones, 640 A.2d 914, 919–

920 (Pa. Super. 1994). We further explained:

      Reimposing a judgment of sentence should not be a mechanical
      exercise. Given the important nature of the interests involved,
      the judge at the second sentencing hearing should reassess the
      penalty to be imposed on the defendant-especially where
      defense counsel comes forward with relevant evidence which
      was not previously available. Thus, [appellant’s] conduct since
      the prior sentencing hearing is relevant at resentencing. The
      sentencing judge must take note of this new evidence and

                                     - 18 -
J-S37027-15


      reevaluate whether the jail term which [appellant] received is a
      just and appropriate punishment.

Id. at 920 (internal quotations and citations omitted).

      We have been unable to identify any authority allowing a trial court to

issue an alternate sentence that can be imposed on direct appeal should the

initial sentence be deemed illegal, nor do the parties direct us to any. Here,

the trial court cites no authority in support of its position that this Court

should adopt the alternate sentence. The Commonwealth, in support of its

claim that resentencing is unnecessary because the trial court provided an

alternate sentence, relies on caselaw providing that this Court may correct

an illegal sentence directly and cites to Commonwealth v. Randal, 837

A.2d 1211, 1214 (Pa. Super. 2003), and Commonwealth v. Alarie, 547

A.2d 1252 (Pa. Super. 1988), as support for its position. Commonwealth’s

Brief at 10-11.

      In Commonwealth v. Randal, the appellant pled guilty to two counts

of Driving Under the Influence (DUI), one count of Receiving Stolen Property

(RSP), and the summary offense of Windshield Obstructions and Wipers.

Randal, 837 A.2d at 1211. The appellant was sentenced as follows: on the

first DUI count, to serve a period of incarceration of not less than thirty days

nor more than two years, less one day; no further penalty was imposed for

the second DUI count; on the RSP count, to a two-year period of probation,

consecutive to the sentence on the first DUI count; for the summary offense,

the court imposed a fine; and pursuant to Act 63, the sentencing court

                                     - 19 -
J-S37027-15


ordered Appellant to have installed an approved ignition interlock device on

every vehicle owned or registered in the appellant’s name.       Id. at 1212.

Subsequent to the appellant’s appeal of his judgment of sentence, the

Supreme Court held that portions of Act 63, requiring the sentencing court

to order the installation of the ignition interlock system, verify compliance,

and certify the installation, were found to be unconstitutional. Id. at 1213.

      Thus, this Court determined it was obligated to correct the sentence

imposed upon the appellant.      Id. at 1214.    Relying on our authority to

amend a sentence directly, this Court vacated the appellant’s sentence only

to the extent that it imposed the requirement that the appellant install an

ignition interlock system on all vehicles he owned. Id. The remainder of the

sentence was left intact. Id.

      Thus, in Randal, this Court did not vacate the appellant’s original

sentence and impose a new sentence.          Instead, we simply vacated an

element of the appellant’s sentence found to be unconstitutional and allowed

the rest of the sentence to remain in effect. Accordingly, we cannot agree

that the Randal case provides support for the requested action of this Court

vacating a sentence in its entirety, and then re-sentencing Appellant with an

alternate sentence provided by the trial court at the time of the initial

sentencing.

      Additionally, in Alarie, following the trial court’s imposition of

sentence, the appellant filed a motion for reconsideration. Alarie, 547 A.2d


                                    - 20 -
J-S37027-15


1255.    The trial court recognized its error in sentencing the appellant and

issued an order granting the motion for reconsideration and vacating part of

the illegal sentence.   Id. at 1255-1256.        The trial court, however, did not

expressly grant the motion for reconsideration within thirty days prescribed

by   the   Pennsylvania    Rules   of    Appellate    Procedure.    Pa.R.A.P.   §§

1701(b)(3)(ii), 903; Alarie, 547 A.2d at 1256.             Thus, the trial court’s

untimely order granting the motion for reconsideration lacked binding effect.

Id. Upon review, this Court determined that the trial court’s order vacating

the illegal sentence was correct.        Id. at 1256.     As a result, instead of

remanding, this Court amended the sentence by vacating only the illegal

portion of the sentence. Id.

        The Alarie case also is distinguishable from the case before us.        As

noted, in Alarie, this Court simply struck off a portion of the appellant’s

sentence that was illegal and the remainder of the sentence was affirmed.

In the case before us, the original sentence imposed is illegal and must be

vacated in its entirety.     Therefore, neither Randal nor Alarie provide

authority for the Commonwealth’s and trial court’s proposed action.

        As such, we conclude that this matter should be remanded for

resentencing.    The vacated sentence has become a legal nullity.        Wilson,

934 A.2d at 1196.       An entirely new sentence must be imposed.           Upon

remand for re-sentencing, the trial court “should start afresh” and “reassess

the penalty to be imposed on [Appellant].”           Jones, 640 A.2d at 919-920.


                                        - 21 -
J-S37027-15


For these reasons, we decline to impose the alternate sentence set forth by

the trial court.

      Judgment of sentence vacated.          Case remanded for proceedings

consistent with this Opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




                                    - 22 -
