J-S54036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

COREY MCCULLOUGH

                        Appellant                 No. 1642 MDA 2013


     Appeal from the Judgment of Sentence entered January 27, 2012
           In the Court of Common Pleas of Lackawanna County
 Criminal Division at Nos: CP-35-CR-0003154-2010 & CP-35-CR-0003155-
                                   2010


BEFORE: LAZARUS, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                    FILED DECEMBER 09, 2014

           Corey McCullough appeals nunc pro tunc from the judgment of

sentence entered on January 27, 2012 for his conviction of crimes of drug

dealing. He challenges the denial of his motion to suppress, an evidentiary

ruling by the trial court, and the weight of the evidence.       We reject

Appellant’s arguments and affirm the conviction, but conclude sua sponte

that Appellant’s sentence is illegal under Alleyne v. United States, 133 S.

Ct. 2151 (2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (en banc). Therefore, we vacate and remand for resentencing.

     On or around October 1, 2010, a confidential informant told Officer

Jason Gula of the Scranton Police Department’s Special Investigative
J-S54036-14



Division (SID) that a man named “Corey” was selling narcotics.1       Officer

Gula relayed the information to the SID supervisor, Sergeant David Mitchell,

who advised that “Corey” might be Appellant.         Sergeant Mitchell had

previously arrested Appellant for drug dealing.     The informant identified

“Corey” as Appellant after Officer Gula gave him a picture of Appellant. At

Officer Gula’s behest, the informant called Appellant to arrange a meeting to

buy one-half ounce of cocaine for $840.00.

       The informant told Appellant that someone else would meet him to buy

the cocaine, and the informant gave Appellant Officer Gula’s phone number.

Officer Gula traveled to North Scranton, and Appellant said to follow his car

to Cusick Avenue.       When Appellant stopped, Officer Gula approached and

identified himself as a police officer. Backup arrived, and officers arrested

Appellant. As the police officers were extracting Appellant from his vehicle,

he kicked the driver’s side door with his foot. Sergeant Mitchell noticed a

clear plastic baggie wrapped in a white napkin, containing what appeared to

be powder cocaine. Sergeant Mitchell also saw the cellphone, later identified

as the phone Appellant used to arrange the buy. During a search incident to

arrest of Appellant, police officers found on him another cellphone and

$862.00.

____________________________________________


1
   Unless otherwise noted, we take the facts from the Trial Court Rule
1925(a) Opinion, 11/30/12, at 1-3, issued by the trial court regarding the
initial appeal in this case.



                                           -2-
J-S54036-14



       Police officers prepared to impound the vehicle, which did not belong

to Appellant.      Consistent with Scranton Police Department policy, they

conducted an inventory search.             During that search, they found crack

cocaine in the center console.         They immediately stopped the search and

obtained a warrant. During the subsequent search, officers found 16 plastic

baggies containing crack cocaine.

       Appellant was charged in two separate criminal informations, docketed

at Nos. CR-3154-2010 and CR-3155-2010.              At No. 3154, Appellant was

charged with possession with intent to deliver (PWID), attempt to deliver a

controlled substance, criminal use of a communication facility. At No. 3155,

Appellant was charged with one count of PWID.2              Appellant moved to

suppress the evidence uncovered during his arrest, arguing that he was

stopped and arrested without probable cause, and that the subsequent

vehicle searches were fruits of an illegal arrest and done without a search

warrant.    The trial court denied the motion, and Appellant proceeded to a

jury trial. The jury found Appellant guilty of all three charges at No. 3154,

but acquitted him of the PWID count charged at No. 3155.



____________________________________________


2
   35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. §§ 901 and 7512(a),
respectively. The PWID and attempt charges in No. 3154 pertain to the
powder cocaine. The PWID charge in No. 3155 pertain to the crack cocaine
found in the center console of Appellant’s vehicle. See Trial Court Rule
1925(a) Opinion, 11/30/12, at 3 n.1.



                                           -3-
J-S54036-14



       Prior to sentencing, the Commonwealth gave notice of intention to

pursue a mandatory minimum sentence of five years, based on the weight of

the cocaine recovered and Appellant’s prior drug-trafficking conviction.   At

sentencing, the trial court found the predicate fact necessary to trigger the

mandatory sentence, based on Appellant’s stipulation to a chemist’s report

finding that the testing of the substance taken from him contained 13.2

grams of cocaine powder. See N.T. Sentencing, 1/27/12, at 2-3. The court

imposed a concurrent sentence of two and one-quarter to four and one-half

years for attempted delivery and a consecutive sentence of one to two years

for criminal use of a communications facility.        Appellant’s aggregate

sentence is six to twelve years, with eligibility for early release under the

Recidivism Risk Reduction Incentive program.

       On March 22, 2012, the trial court entered an order purporting to deny

Appellant’s post-sentence motions, though no such motions appear on the

docket or in the certified record.3 Appellant appealed to this Court, but we

quashed the appeal as untimely. Commonwealth v. McCullough, 69 A.3d

1292 (Pa. Super. 2013) (unpublished memorandum). Thereafter, Appellant




____________________________________________


3
  Appellant contends that the post-sentence motions were filed but not
reflected on the docket. Appellant’s Brief at 7. This Court has determined in
the prior appeal, however, that no post-sentence motions were filed.



                                           -4-
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successfully sought restoration of his appellate rights, and this appeal nunc

pro tunc followed.4

       Appellant raises three issues for our review:

       1. Did the [t]rial court err in failing to suppress the evidence
          seized from [Appellant’s] vehicle because this evidence was
          obtained as a result of the warrantless arrest and search of
          [Appellant] and the vehicle without probable cause?

       2. Did the [t]rial [c]ourt abuse its discretion in allowing
          [Appellant’s] probation officer to testify because this was an
          impermissible means of admitting [Appellant’s] inadmissible
          prior convictions?

       3. Was the jury’s verdict on the charge of attempt to deliver a
          controlled substance against the weight of the evidence
          because the jury could not reasonably conclude, on the
          evidence presented, that a substantial step toward the
          commission of the crime was established?

Appellant’s Brief at 5.

       Appellant first challenges the denial of his motion to suppress.5

Appellant argues that his arrest for attempting to deliver cocaine was

“presumptively unreasonable” because police failed to obtain an arrest

____________________________________________


4
  The trial court did not require a concise statement of errors complained of
on appeal for this appeal nunc pro tunc.          The Rule 1925(a) opinion
referenced above regards the first, quashed appeal.
5
  The trial court denied Appellant’s suppression motion in a one-line order,
and failed to make the required findings of fact and conclusions of law in
support of its order. Cf. Pa.R.Crim.P. 581(I); Commonwealth v. Miller,
888 A.2d 680, 688-89 (Pa. 2005); Commonwealth v. Grundza, 819 A.2d
66 (Pa. Super. 2003). The trial court addressed Appellant’s suppression
motion in a subsequent opinion, so we do not need to remand for the entry
of findings of fact.



                                           -5-
J-S54036-14



warrant. He further argues that police lacked probable cause to arrest him,

or to subsequently search him and his vehicle.

      We review an order denying a motion to suppress as follows:

      In addressing a challenge to a trial court’s denial of a
      suppression motion, we are limited to determining whether the
      factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. Since the
      Commonwealth prevailed in the suppression court, we may
      consider only the evidence of the Commonwealth and so much of
      the evidence for the defense as it remains uncontradicted when
      read in the context of the record as a whole. Where the record
      supports the factual findings of the trial court, we are bound by
      those facts and may reverse only if the legal conclusions drawn
      therefrom are in error.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(quotation omitted).

      Appellant contends police needed a warrant to arrest him.           This

argument is meritless. Appellant cites no authority for his proposition that a

warrantless arrest is presumptively unreasonable.       Rather, “the Fourth

Amendment permits warrantless arrests in public places where an officer has

probable cause to believe that a felony has occurred,” Florida v. White,

526 U.S. 559, 565 (1999), and also for any criminal offense committed in a

police officer’s presence, Atwater v. City of Lago Vista, 532 U.S. 318, 354

(2001). Moreover, Pennsylvania law allows police officers to arrest without

warrant upon probable cause that (a) the person has committed murder or a

felony; (b) the person has committed murder, a felony, or a misdemeanor in

the officer’s presence; or (c) the person has committed a misdemeanor



                                    -6-
J-S54036-14



outside of the officer’s presence and a statute permits warrantless arrest.

Pa.R.Crim.P. 502(2).

     In this case, Officer Gula arrested Appellant in public for allegedly

committing several felonies. Both the Fourth Amendment and Pennsylvania

law explicitly authorize such a warrantless arrest.   Therefore, Appellant’s

arrest was lawful if supported by probable cause, and there is no merit to

Appellant’s argument that Officer Gula needed a warrant.

     Probable cause to effectuate an arrest exists when the facts and
     circumstances within the knowledge of the arresting officer are
     reasonably trustworthy and sufficient to justify a person of
     reasonable caution in believing that the arrestee has committed
     an offense. In addressing the existence of probable cause,
     courts must focus on the circumstances as seen through the
     eyes of the trained police officer, taking into consideration that
     probable cause does not involve certainties, but rather the
     factual and practical considerations of everyday life on which
     reasonable and prudent men act.

Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa. Super. 2014)

(quotation omitted).

     Appellant contends that Officer Gula lacked probable cause to arrest

him. We disagree.      Officer Gula was a member of the SID, and had

experience in investigating drug trafficking. He and Appellant spoke on the

phone, and Appellant agreed to sell Officer Gula one-half ounce of cocaine

for $840.00. Appellant chose the meeting place on Cusick Avenue in North

Scranton and directed Officer Gula to follow his vehicle to consummate the

transaction. Additionally, the police knew that Appellant had been arrested

in the past for drug dealing. It is immaterial that Officer Gula did not know


                                    -7-
J-S54036-14



that Appellant had drugs in his vehicle, as Appellant was arrested for, inter

alia, attempting to deliver a controlled substance and criminal use of a

communications       facility,   neither       of   which   necessarily   entails   actual

possession of cocaine. In sum, the arrest of Appellant was lawful.6

____________________________________________


6
  In dissent, our Learned Colleague contends Officer Gula lacked probable
cause because he did not have proof that Appellant committed attempted
delivery of a controlled substance or, therefore, criminal use of a
communications facility (which requires proof of an underlying felony).

However, to arrest Appellant, Officer Gula need only probable cause of a
crime—not proof enough to convict. Probable cause requires only that “facts
and circumstances within the knowledge of the arresting officer are
reasonably trustworthy and sufficient to justify a person of reasonable
caution in believing that the arrestee has committed an offense.”
Thompson, 93 A.3d at 486. In contrast, a conviction requires proof of each
element of the offense beyond a reasonable doubt, a much higher standard.
“Finely tuned standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal trials, have no place in the
probable-cause decision.” Commonwealth v. Dommel, 885 A.2d 998,
1002 (Pa. Super. 2005) (quoting Maryland v. Pringle, 540 U.S. 366, 371
(2003)) (internal alterations and brackets omitted).

Moreover, to the extent the Dissent uses evidentiary sufficiency to dispute
the existence of probable cause, we note Appellant has not raised the
sufficiency of the evidence on appeal. Although that issue may be raised for
the first time on appeal, see Pa.R.Crim.P. 606(A)(7), Appellant has not done
so here. See Pa.R.A.P. 2116(a) (issues not included in statement of
questions involved are waived); Commonwealth v. Bryant, 57 A.3d 191,
196 n.7 (Pa. Super. 2012) (concluding the appellant failed to preserve
challenge to sufficiency of evidence to support indecent assault conviction by
not including it in his statement of questions involved).

Finally, we reject the Dissent’s reweighing of the facts known to Officer Gula
when he arrested Appellant. Our standard of review requires us to accept
factual findings supported by the record, i.e., that Officer Gula believed the
man inside the vehicle on Cusick Avenue to be the person who called him,
agreed to sell him cocaine, and arranged to meet him at that very place. In
(Footnote Continued Next Page)


                                           -8-
J-S54036-14



      Because Appellant’s arrest was lawful, the evidence seized from his

person and the vehicle was not fruits of the poisonous tree. “A fruit of the

poisonous      tree       argument        requires   an   antecedent   illegality.”

Commonwealth v. Johnson, 68 A.3d 930, 946 (Pa. Super. 2013)

(quotation omitted).        In addition, a search incident to arrest is automatic

upon a lawful arrest. Commonwealth v. Ingram, 814 A.2d 264, 272 (Pa.

Super. 2002).      Here, there was no antecedent illegality.      Therefore, the

drugs, cellphone, and money do not constitute fruits of the poisonous tree.

Appellant does not raise any independent illegality in the seizure of the

evidence from his person and the vehicle, and we will not consider any such

arguments.

      In his second issue, Appellant contends the trial court erred in

permitting his probation officer to testify in rebuttal over his objection.

Appellant argues that allowing the probation officer to testify violated

Pennsylvania Rule of Evidence 404(b) in that it allowed the jury to infer his

guilt based on prior convictions.           The Commonwealth contends that the

probation officer’s testimony was proper for the limited purpose of

impeaching Appellant’s testimony that the cocaine found on him was for

personal use, as Appellant never tested positive for drugs.


                       _______________________
(Footnote Continued)

any event, it strains credulity to believe the person inside the vehicle could
be anyone else but the man who agreed to sell Officer Gula drugs.



                                            -9-
J-S54036-14



      We review a trial court’s admission of evidence for an abuse of

discretion.   Commonwealth v. Viera, 659 A.2d 1024, 1028 (Pa. Super.

1995). “An abuse of discretion is not merely an error of judgment, but is

rather the overriding or misapplication of the law, or the exercise of

judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-

will or partiality, as shown by the evidence or the record.”      Id. (internal

quotation omitted).

      Rule 404(b)(1) prohibits the use of a crime, wrong, or other act to

prove a person’s character.     Pa.R.E. 404(b)(1).   Rule 404(b) reflects the

common law concept that the prosecution cannot use prior convictions or

other uncharged acts to prove the defendant’s guilt.      Commonwealth v.

Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc).           Rule 404(b)(2),

however, allows the admission of such evidence for any other purpose,

including as proof of “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”          Pa.R.E.

404(b)(2). In a criminal case, other acts evidence is admissible only if “if

the probative value of the evidence outweighs its potential for unfair

prejudice.” Id.

      Other purposes for admitting other acts evidence include impeachment

of witnesses.     For example, in Viera, we approved the testimony of the

defendant’s parole officers to rebut his alibi defense.    Viera, 659 A.2d at

1029. Similarly, in Commonwealth v. Hill, 666 A.2d 642, 649 (Pa. 1995),

our Supreme Court found no violation where the defendant’s probation

                                     - 10 -
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officer testified in rebuttal to impeach the defendant’s claims that she had no

probation violations and had not been using drugs.

      In this case, Appellant testified that he was using cocaine daily.     In

other words, Appellant attempted to show that the cocaine found on him

was for personal use, and that he lacked the intent necessary to commit

PWID or attempted delivery.      To rebut his testimony, the Commonwealth

called Appellant’s probation officer.   The probation officer testified that he

tested Appellant for drug use weekly, and that the tests were negative.

Therefore, the probation officer’s testimony properly had the effect of

impeaching Appellant’s credibility. Under Hill and Viera, impeachment is a

proper use of other acts evidence.

      Moreover, the probative value of the evidence outweighed its

prejudicial effect. The probative value of the evidence was high because it

rebutted the impression that Appellant was a drug-user as opposed to a

dealer.    In addition, it was probative of Appellant’s intent to distribute

cocaine.   The Commonwealth attempted to sanitize the probation officer’s

testimony.    It did not elicit testimony as to why Appellant was under

supervision. It also tried to de-emphasize the fact that Appellant was under

supervision for a previous conviction. In sum, the trial court did not abuse

its discretion in allowing Appellant’s probation officer to rebut his claim that

he possessed cocaine merely for personal use.

      Appellant finally argues that he is entitled to a new trial on the charge

of attempted delivery of a controlled substance, because the jury’s verdict

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was against the weight of the evidence.            We cannot address this issue,

because Appellant did not raise it before the trial court.

       A claim that a verdict is against the weight of the evidence must be

raised in a motion for a new trial either (1) orally on the record, before

sentencing; (2) in a written-presentence motion; or (3) in a post-sentence

motion. Pa.R.Crim.P. 607(A). Failure to properly preserve the claim results

in waiver, even if the trial court addresses the weight of the evidence in its

opinion. Thompson, 93 A.3d at 490 (quoting Commonwealth v. Lofton,

57 A.3d 1270, 1273 (Pa. Super. 2012)). It is axiomatic that a party cannot

raise an issue for the first time on appeal. Pa.R.A.P. 302(a).

       Here, the record shows that Appellant never requested a new trial as

required by Rule 607(A).7          Though he purportedly filed a post-sentence

motion, the motion is not in the certified record. No pretrial oral or written

motion exists, either.        Finally, we have already determined—in a prior

appeal—that Appellant did not file a post-sentence motion. This issue is not

preserved and, therefore, is not reviewable.

       Having rejected Appellant’s arguments, we turn to the legality of his

sentence under Alleyne.           An Alleyne issue concerns the legality of a

sentence, meaning that it cannot be waived, can be raised by this Court sua

____________________________________________


7
 In its brief, the Commonwealth concedes that Appellant challenged the
weight of the evidence in a motion for a new trial. Appellee’s Brief at 17.
However, we have reviewed the record and have found no such motion.



                                          - 12 -
J-S54036-14



sponte, and applies retroactively to cases pending on direct appeal.

Newman, 99 A.3d at 90.

      In this case, Appellant received a five-year mandatory minimum

sentence as required by 18 Pa.C.S.A. § 7508(a)(3)(ii).        Section 7508

contains a schedule of mandatory sentences that must be imposed on

defendants convicted of certain drug crimes based on the amount and type

of drugs, and the defendants’ prior drug-trafficking convictions.   Appellant

received a five-year mandatory minimum sentence, because he was

convicted of PWID of between 10 and 100 grams of cocaine, and he had

been convicted of a prior drug trafficking offense. Id.

      Section 7508 provides, in relevant part:

      (a) General rule.--Notwithstanding any other provisions of this
      or any other act to the contrary, the following provisions shall
      apply:
                                   ***

         (3) A person who is convicted of violating section
         13(a)(14), (30) or (37) of The Controlled Substance, Drug,
         Device and Cosmetic Act where the controlled substance is
         coca leaves or is any salt, compound, derivative or
         preparation of coca leaves or is any salt, compound,
         derivative or preparation which is chemically equivalent or
         identical with any of these substances or is any mixture
         containing any of these substances except decocainized
         coca leaves or extracts of coca leaves which (extracts) do
         not contain cocaine or ecgonine shall, upon conviction, be
         sentenced to a mandatory minimum term of imprisonment
         and a fine as set forth in this subsection:

                                    ***

            (ii) when the aggregate weight of the compound or
            mixture containing the substance involved is at least
            ten grams and less than 100 grams; three years in

                                    - 13 -
J-S54036-14


              prison and a fine of $15,000 or such larger amount as is
              sufficient to exhaust the assets utilized in and the
              proceeds from the illegal activity; however, if at the
              time of sentencing the defendant has been convicted of
              another drug trafficking offense: five years in prison
              and $30,000 or such larger amount as is sufficient to
              exhaust the assets utilized in and the proceeds from the
              illegal activity[.]

        (b) Proof of sentencing.-- Provisions of this section shall not
        be an element of the crime. Notice of the applicability of this
        section 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 evidence
        presented at trial, shall afford the Commonwealth and the
        defendant an opportunity to present necessary additional
        evidence and shall determine, by a preponderance of the
        evidence, if this section is applicable.

Id. § 7508 (other subsections omitted). In Alleyne, the Supreme Court of

the United States held that any fact triggering a mandatory minimum

sentence is an element of the crime, and must be found by a jury beyond a

reasonable doubt.       Alleyne, 133 S. Ct. at 2155.      Therefore, § 7508(b),

above, violates Alleyne.         See Commonwealth v. Watley, 81 A.3d 108,

117 (Pa. Super. 2013) (en banc) (dicta).

        Subsequent to Watley, this Court held that 42 Pa.C.S.A. § 9712.1,8

which contains identical language as § 7508(b), is facially unconstitutional
____________________________________________


8
    Section 9712.1 provided:

        (a) Mandatory sentence.--Any person who is convicted of a
        violation of [35 P.S. § 780-113(a)(30)] . . . , 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
(Footnote Continued Next Page)


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J-S54036-14



under Alleyne.         Newman, 99 A.3d at 97-98.        Moreover, the Newman

court found that § 9712.1’s triggering language is inseparable from the

remainder of the statute.          Id. at 101-03.   This holding essentially voids

§ 9712.1 in all cases.

      Following Newman, a panel of this Court found that 42 Pa.C.S.A.

§§ 9712 and 9713,9 which contain identical language as § 9712.1, are


                       _______________________
(Footnote Continued)

      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 (other subsections omitted).


9
  42 Pa.C.S.A. § 9712 provided a five-year mandatory sentence for anyone
who committed a crime of violence while possessing a “a firearm or a replica
of a firearm, whether or not the firearm or replica was loaded or functional,
that placed the victim in reasonable fear of death or serious bodily injury,
during the commission of the offense.” Section 9713 provided a five-year
mandatory sentence for anyone who committed a crime of violence on or
near public transportation.



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unconstitutional. Commonwealth v. Valentine, 2014 PA Super 220, 2014

WL 4942256, 2014 Pa. Super. LEXIS 3420 (filed Oct. 3, 2014).                In

Valentine, we vacated the defendant’s sentence as unconstitutional, even

though the trial court attempted to comply with Alleyne by presenting an

interrogatory to the jury, asking it to find beyond a reasonable doubt

whether the defendant possessed a firearm or committed the offense on

public transportation. Id. at *8-9; 2014 Pa. Super. LEXIS 3420, at *21-23.

We concluded the trial court’s procedure, while innovative, could not be

justified in light of Newman. Id., 2014 Pa. Super. LEXIS 3420, at *21-23.

       We are reluctant to raise sua sponte the constitutionality of a statute,

but Newman and Valentine require us to do so. Because § 7508 contains

language identical to that found fatal to the statutes in Newman and

Valentine, § 7508 is void in its entirety.10 Even though Appellant stipulated

to the weight of drugs involved at trial, the mandatory sentence cannot be

applied. We see no difference between the stipulation in this case and the




____________________________________________


10
   As noted above, § 7508 contains a schedule of mandatory sentences
based on the weight of drugs involved and the defendant’s prior record.
Alleyne does not apply to prior convictions. Alleyne, 133 S. Ct. at 2160
n.1. However, just as we cannot sever § 7508(b) from the remainder of the
statute, we are unable to sever the constitutional, prior-record mandatory
provisions from the unconstitutional, drug-weight mandatory provisions.



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jury’s findings in Valentine.        Appellant’s sentence is illegal, and must be

vacated.11

       In conclusion, we find no merit to any of the issues raised by

Appellant. His conviction must be affirmed. We conclude sua sponte that

the mandatory minimum sentencing statute used here is unconstitutional

under Newman.           Therefore, we vacate the judgment of sentence and

remand to the trial court for resentencing without consideration of 18

Pa.C.S.A. § 7508(a)(3)(ii).

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.

       Judge Mundy joins the Majority.

       Judge Lazarus files a Dissenting Memorandum.




____________________________________________


11
   The unconstitutionality of § 7508 does not affect the trial court’s discretion
to impose any other lawful sentence. See Alleyne, 133 S. Ct. at 2163 (“We
have long recognized that broad sentencing discretion, informed by judicial
factfinding, does not violate the Sixth Amendment.”); Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc) (noting
that Alleyne does not affect a trial court’s ability to deviate from the
Sentencing Guidelines); Valentine, 2014 WL 4942256, at *9 2014 Pa.
Super. LEXIS 3420, at *25-26 (Gantman, P.J., concurring in the result)
(noting that Alleyne does not preclude the use of a deadly weapon
sentencing enhancement).



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J-S54036-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2014




                          - 18 -
