J-S02005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MAHMOUD REDDY

                            Appellant                 No. 2493 EDA 2013


             Appeal from the Judgment of Sentence June 26, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002109-2010


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                              FILED APRIL 23, 2015

        Appellant, Mahmoud Reddy, appeals from the June 26, 2013 judgment

of sentence of three to ten years’ incarceration, imposed following his

conviction by a jury of possession of a controlled substance, to wit crack

cocaine, with intent to deliver (PWID).1       After careful review, we affirm

Appellant’s conviction but are constrained to vacate and remand for

resentencing.

        The trial court summarized the facts, from the testimony adduced at

trial, as follows.

                    Philadelphia Police Officer Gerald Passalacqua,
              a drug enforcement officer since 1998, a veteran of
              “thousands of narcotics surveillances” and credited
              with over 10,000 narcotics arrests, testified that on
____________________________________________
1
    35 P.S. § 780-113(a)(30).
J-S02005-15


          January 19, 2010, he was assigned to the
          Philadelphia Police Department’s Narcotics Strike
          Force. At approximately 10:00 p.m., he was in
          plainclothes and in an unmarked police car with his
          partner, when he began conducting a surveillance at
          the corner of 56th Street and Wyalusing Avenue in
          the City of Philadelphia. He described the corner as
          being well lit and the neighborhood as being
          primarily residential.

                 He testified that at approximately 10:15 p.m.
          he observed [Appellant] exit a bar on the northwest
          corner, approximately 45 feet away from his
          position.    After approximately a minute, a car
          approached [Appellant]. A male, later identified as
          Mr. Hobson, exited the vehicle and walked over to
          [Appellant]. After a brief conversation between the
          two men, Mr. Hobson handed [Appellant] money. In
          return, [Appellant] reached into the pocket of his
          []blue-hooded sweatshirt and withdrew a clear
          plastic sandwich baggie, from which he removed an
          item and handed it to Mr. Hobson.              Officer
          Passalacqua then radioed his back-up officers
          instructing them to stop Mr. Hobson’s vehicle.

                 While still in Officer Passalacqua’s view and in
          full view of [Appellant], Officer Garnett, in a marked
          police vehicle, stopped Mr. Hobson approximately
          one block away and took him into custody. On
          seeing this, Officer Passalacqua directed his back-up
          officers to also take [Appellant] into custody. In
          response, Officer McCauley approached [Appellant]
          who, on seeing him, turned and ran back into the
          bar with Officer McCauley in pursuit and Officer
          Rodriguez following close behind.

                In   concluding     his   testimony,   Officer
          Passalacqua testified that Commonwealth Exhibit C-
          12, a clear plastic bag, was similar to the one he
          observed [Appellant] remove from his pocket. It
          was stipulated by and between counsel that the
          Commonwealth’s Exhibit C-12 was a clear plastic bag
          containing eight “black Ziplock packets with an off-
          white chunky powder” and that one of the packets

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          “tested positive for cocaine.” It was also stipulated
          that the total weight of the contents of all eight
          packets was 3.155 grams.

                Police Officer Erick Garnett, a 17 year veteran
          police officer, testified that on the evening of January
          19, 2010 he was working in full uniform as back up
          investigating illegal sales of narcotics.             At
          approximately 10:20 p.m., at the direction of Officer
          Passalacqua, he stopped a Burgundy Toyota at 56th
          Street and Girard Avenue and recovered one clear
          packet, which later tested positive for cocaine, from
          the occupant, William Hobson.

                Police Officer Joseph McCauley, a 17 year
          veteran police officer, testified that on the evening of
          January 19, 2010 he was working in an unmarked
          vehicle in full uniform as back up investigating illegal
          sales of narcotics, in the area of 56th Street and
          Wyalusing Avenue. At approximately 10:15 p.m., he
          received a radio call from Officer Passalacqua “to
          move in and effect the arrest of persons he observed
          in narcotics transactions.”         As he approached
          [Appellant], [Appellant] turned and ran into the bar.
          Following him into the bar, Officer McCauley
          observed [Appellant] toss a clear plastic bag into a
          trash can just inside the entrance. After taking
          [Appellant] into custody, Officer McCauley recovered
          $428 in currency from his person.

                 Police Officer Mauricio Rodriguez, a 16 year
          veteran of the Philadelphia Police Narcotics Strike
          Force, testified that on January 19, 2010, at
          approximately 10:15 p.m., he was working as a
          backup officer in full uniform and marked police car,
          when he received a radio call from Officer
          Passalacqua “to stop a male that was selling --
          allegedly was selling narcotics at the -- outside the,
          bar, outside the bar at 56th and Wyalusing.” On
          arriving he followed Officer McCauley into the bar
          and was told to search the trash can for an item
          Officer McCauley had seen [Appellant] discard. On
          shining his flashlight into the trash can, Officer
          Rodriguez recovered a clear plastic bag in plain sight.

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              Officer  Rodriguez   further   testified  that   the
              Commonwealth’s Exhibit C-12 was the clear plastic
              bag he recovered from the trash can inside the bar.

Trial Court Opinion, 5/21/14, at 4-6 (citations omitted).

        The police arrested Appellant and charged him with PWID.        On June

30, 2010, Appellant filed an omnibus pre-trial motion, including a motion to

suppress evidence.2 A hearing on Appellant’s motion to suppress was held

before the Honorable Daniel J. Anders on July 8, 2010. Officer Passalacqua

was the only Commonwealth witness to testify at the hearing, and Appellant

did not present any evidence.            At the conclusion of the hearing, Judge

Anders recited his findings of fact and conclusions of law before denying

Appellant’s motion. The matter proceeded to a jury trial held March 26-28,

2013. The jury found Appellant guilty of the sole charge of PWID. 3 On June

26, 2013, the trial court sentenced Appellant to a term of incarceration of

three to ten years, applying the mandatory minimum sentence pursuant to

18 Pa.C.S.A. § 7508(a)(3)(i).           Appellant filed no post-sentence motion.

Appellant file a timely pro se notice of appeal on July 26, 2013. On August




____________________________________________
2
    The motion is not included in the certified record.
3
 The trial and sentencing were presided over by the Honorable Charles J.
Cunningham, III.



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26, 2013, the trial court appointed Jennifer Ann Santiago, Esquire, to

represent Appellant in the instant appeal.4

       On appeal, Appellant raises the following issues for our consideration.

              A.     Did the court err in denying Appellant’s motion
                     to suppress?

              B.     Did the Commonwealth prove beyond a
                     reasonable doubt the element of each crime
                     that appellant was convicted of?

Appellant’s Brief at 3.

       In his first issue, Appellant challenges the suppression court’s denial of

his suppression motion based on its conclusion that the police officers had

reasonable suspicion or probable cause to detain him.        Id. at 13.    When

reviewing a challenge to a trial court’s denial of a suppression motion, we

observe the following principles.

              [An appellate court’s] standard of review in
              addressing a challenge to the denial of a suppression
              motion is limited to determining whether the
              suppression court’s factual findings are supported by
              the record and whether the legal conclusions drawn
              from those facts are correct.           Because the
              Commonwealth prevailed before the suppression
              court, we may consider only the evidence of the
              Commonwealth and so much of the evidence for the
              defense as remains uncontradicted when read in the
              context of the record as a whole.          Where the
              suppression court’s factual findings are supported by
____________________________________________
4
  Appellant and the trial court have complied Pennsylvania Rule of Appellate
Procedure 1925. Appellant filed an initial rule 1925(b) statement as part of
his “Motion for an Extension to File a Statement of Matters Complained of
Pursuant to Pa.R.A.P. 1925(b)”. The trial court granted the extension, but
no amended statement was filed by Appellant.


                                           -5-
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              the record, [the appellate court is] bound by [those]
              findings and may reverse only if the court’s legal
              conclusions are erroneous. Where … the appeal of
              the determination of the suppression court turns on
              allegations of legal error, the suppression court’s
              legal conclusions are not binding on an appellate
              court, whose duty it is to determine if the
              suppression court properly applied the law to the
              facts. Thus, the conclusions of law of the courts
              below are subject to [] plenary review.

Commonwealth v. Garibay, 106 A.3d 136, 138-139 (Pa. Super. 2014) (en

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

(internal citations and quotation marks omitted).5

       The Commonwealth and the trial court contend Appellant’s suppression

challenge is waived for lack of specificity in his Rule 1925(b) concise

statement. Commonwealth’s Brief at 6; Trial Court Opinion, 5/21/14, at 6.

Appellant’s Rule 1925(b) statement included the following description of this

issue. “The [suppression court] erred when it denied Appellant’s motion to
____________________________________________
5
   Our Supreme Court has recently clarified our scope of review when
considering a challenge to a trial court’s suppression ruling as it relates to
“the extent of the record that the appellate court consults when conducting
that review.” In re L.J., 79 A.3d 1073, 1080, (Pa. 2013). The Supreme
Court held that such review is limited to the suppression hearing record, and
“it is inappropriate to consider trial evidence as a matter of course, because
it is simply not part of the suppression record, absent a finding that such
evidence was unavailable during the suppression hearing.” Id. at 1085.
Because prior cases held that a reviewing court could consider the trial
record in addition to the suppression record, the Supreme Court determined
that the more limited scope announced in In re L.J. would apply
prospectively to cases where the suppression hearing occurred after October
30, 2013. Id. at 1088-1089. Instantly, the subject suppression hearing
was held on July 8, 2010. Accordingly, our scope of review includes the trial
testimony in this case.



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suppress.”    Appellant’s Motion for an Extension to File a Statement of

Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 10/1/13, at

1, ¶ 1.

                    Pennsylvania Rule of Appellate Procedure
             1925(b)(4) provides in pertinent part: “The
             Statement shall concisely identify each ruling or
             error that the appellant intends to challenge with
             sufficient detail to identify all pertinent issues for the
             judge.” Pa.R.A.P. 1925(b)(4)(ii). The comment to
             this subsection acknowledges that vagueness is a
             “very case specific inquir[y].” However, the comment
             explains,

                   The more carefully the appellant frames the
                   Statement, the more likely it will be that the
                   judge will be able to articulate the rationale
                   underlying the decision and provide a basis for
                   counsel to determine the advisability of
                   appealing that issue. Thus, counsel should
                   begin the winnowing process when preparing
                   the Statement and should articulate specific
                   rulings with which the appellant takes issue
                   and why.

             Pa.R.A.P. 1925, cmt.

Commonwealth v. Postie, --- A.3d ---, 2015 WL 663437 at *5-6 (Pa.

Super. 2015) (footnote omitted).

             We caution Appellant that this Court has found
             claims waived on appeal for failure to specify the
             error alleged. See Commonwealth v. Rolan, 964
             A.2d 398, 409–10 (Pa. Super. 2008); see also
             Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.
             Super. 2011), appeal denied, 32 A.3d 1275 (Pa.
             2011) (“[A] [c]oncise [s]tatement which is too vague
             to allow the court to identify the issues raised on
             appeal is the functional equivalent of no [c]oncise
             [s]tatement at all. The court’s review and legal
             analysis can be fatally impaired when the court has

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J-S02005-15


            to guess at the issues raised.”) (citation and internal
            quotation marks omitted). [] [H]owever, Pa.R.A.P.
            1925(b)(4)(v) provides that “[e]ach error identified
            in the Statement will be deemed to include every
            subsidiary issue contained therein which was raised
            in the trial court[.]”

Commonwealth v. Garvin, 50 A.3d 694, 697, n. 5 (Pa. Super. 2012).

      Instantly, the issues developed by Appellant in his brief are the same

as those he advanced during the suppression hearing and as those

addressed by the suppression court and the trial court. We therefore decline

to find waiver, and address the merits of Appellant’s claim.

      Appellant’s specific claim is that the Commonwealth, through the

testimony of Officer Passalacqua, failed to establish the police had probable

cause to arrest Appellant because the officer’s experience was limited and

lacked a nexus with the officer’s observations, which were imprecise relative

to the transaction between Appellant and Hobson. Appellant’s Brief at 14-

15.

            Looking to the factors for probable cause, the trial
            court erred in denying the motion to suppress. First,
            and most importantly, the officer testified that he
            had only been with the Narcotics Strike Force for two
            months prior to this arrest and was completely
            unfamiliar with the area of 56th and Wyalusing. …
            Given that Passalacqua could not remotely describe
            the object for the court, it would be a mere guessing
            game as to what Appellant allegedly handed to the
            black male. There was absolutely no correlation
            made between his training and this one alleged
            transaction.

Id.


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      “Both the United States and Pennsylvania Constitutions protect citizens

against unreasonable searches and seizures.     U.S. Const. Amend. IV; Pa.

Const. Art. I, § 8. To be constitutionally valid, an arrest must be based on

probable cause.”    Commonwealth v. Smith, 979 A.2d 913, 916 (Pa.

Super. 2009) (citation omitted), appeal denied, 993 A.2d 901 (Pa. 2010).

                  Probable cause exists where the facts and
            circumstances within the knowledge of the officer are
            based upon reasonably trustworthy information and
            are sufficient to warrant a man of reasonable caution
            in the belief that the suspect has committed or is
            committing a crime.         In determining whether
            probable cause exists, we apply a totality of the
            circumstances test.

Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa. Super. 2013)

(internal quotation marks and citations omitted).   “The question we ask is

not whether the officer’s belief was correct or more likely true than false.

Rather, we require only a probability, and not a prima facie showing, of

criminal activity. In determining whether probable cause exists, we apply a

totality of the circumstances test.”    Commonwealth v. Thompson, 985

A.2d 928, 931 (Pa. 2009) (internal quotation marks and citations omitted,

emphasis in original).

            The [Pennsylvania] Supreme Court, [in Thomson]
            held that “a police officer’s experience may fairly be
            regarded as a relevant factor in determining
            probable cause.” [Thompson, supra] at 935.
            However, the Thompson Court cautioned courts
            that they “cannot simply conclude that probable
            cause existed based upon nothing more than the
            number of years an officer has spent on the force.
            Rather, the officer must demonstrate a nexus

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           between his experience and the search, arrest, or
           seizure of evidence.” Id. (quoting [Commonwealth
           v.]Dunlap, 941 A.2d [671,] 676 [(Pa. 2007)]).
           “Indeed, a factor becomes relevant only because it
           has some connection to the issue at hand.” Id.

                  … Thompson involved a single hand-to-hand
           transaction.    It    was     under    those    limited
           circumstances [] that the value of police experience
           became critical to the probable cause determination.
           Because the officer’s observation of the lone
           transaction, by itself, did not create probable cause,
           the police officer’s experience was necessary to
           determine whether probable cause existed.           Per
           Thompson, that experience has value only if the
           officer can demonstrate a nexus between the
           experience and the observed behavior. However,
           the necessity of establishing that nexus diminishes if
           probable cause exists based solely upon the behavior
           that the officer observed. In determining whether
           probable cause exists:

                       The time is important; the street location
                 is important; the use of a street for commercial
                 transactions is important; the number of such
                 transactions is important; the place where the
                 small items were kept by one of the sellers is
                 important; the movements and manners of the
                 parties are important.

           Thompson,      985 A.2d  at    932    (citing
           Commonwealth v. Lawson, 309 A.2d 391, 394 []
           ([Pa.] 1973)).

Delvalle, supra at 1085-1086.

     Instantly, despite Appellant’s attempt to diminish the degree of Officer

Passalacqua’s experience and its relevance to his specific observations, the

suppression court found otherwise.

                Police officer Passalacqua is an officer that has
           17 years experience on the police force. He has

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             substantial training in the sales and distribution of
             narcotics. He has had more than 6,000 narcotics
             arrests and conducted hundreds of surveillance for
             drug activity.    He is currently assigned for six
             months to the narcotics strike force. And previously,
             had three and a half years service in narcotics
             enforcement. In his view this was a class civic [sic]
             hand to hand transaction for narcotics.

                   He admitted that he is not familiar with the
             5600-block of Wyalusing Ave. and has no knowledge
             about whether it’s a high crime area or an area
             that’s known for narcotics activity. He did testify
             that earlier that night at approximately one half
             block away he observed what he believed was
             another drug transaction that was occurring.

                    … [B]ased upon the time of the day, the
             movement of [Appellant] and Mr. Hobson, the length
             of time of their interaction, movement of [Appellant]
             after Mr. Hobson’s arrest, police officer Passalacqua’s
             training and experience as well as finding that there
             is a sufficient nexus between his training, experience
             and the observed transaction that there was
             probable cause in this matter to stop, detain and
             search [Appellant]. And as a result, that there was
             no forced abandonment when the seizure occurred.

N.T., 7/8/10, at 39-40.

      We conclude the suppression court’s findings are supported by the

record and its legal conclusions are correct. While Officer Passalacqua was

only attached to the drug task force for a short time, his overall experience

with drug law enforcement was much more extensive, including specialized

training,   participation   in   6,000    narcotics   arrests,   and   hundreds   of

surveillances.   Id. at 11-12. Additionally, Officer Passalacqua was able to

observe Appellant remove a small object from a plastic baggie, which he


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exchanged for cash from Hobson.            Id. at 4-5, 19-20. Officer Passalacqua

noted      the    quick   duration   of   the   transaction   with   the   participants

approaching, conversing, exchanging, and departing within less than a

minute. Id. at 10. Further, Officer Passalacqua related his experience to his

observations, providing a nexus through which to assess the relevance of his

experience.

                 [B]ased on, one, the first think [sic] I saw was the
                 hand to hand transaction, the exchange of small
                 objects for money, which I’ve seen numerous times
                 in my career. It’s a commonality in drug sales that I
                 see that type of action. … Second, I base it on my
                 vast experience in this area as it pertains to open air
                 drug sales on the streets of Philadelphia.

Id. at 14.

          Based on the foregoing, we discern no error by the suppression court

in concluding the police had probable cause to detain Appellant after the

observed transaction and arrest of Hobson.            We conclude the suppression

court’s findings are supported by the record and that the totality of the

circumstances, including Officer Passalacqua’s observations viewed in the

light of his experience, support its legal conclusions.              See Thompson,

supra; Delvalle, supra. Accordingly, Appellant’s first issue affords him no

relief.

          Appellant next challenges the sufficiency of the evidence presented by

the Commonwealth to prove him guilty of PWID. Appellant’s Brief at 16.

                       A claim impugning the sufficiency of the
                 evidence presents us with a question of law. …

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              The standard we apply in reviewing the sufficiency of
              the evidence is whether viewing all the evidence
              admitted at trial in the light most favorable to 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.
              Moreover, in applying the above test, the entire
              record must be evaluated and all evidence actually
              received must be considered. Finally, the finder of
              fact while passing upon the credibility of witnesses
              and the weight of the evidence produced, is free to
              believe all, part or none of the evidence.

              This standard is equally applicable to cases where
              the evidence is circumstantial rather than direct so
              long as the combination of the evidence links the
              accused to the crime beyond a reasonable doubt.
              Although a conviction must be based on more than
              mere suspicion or conjecture, the Commonwealth
              need not establish guilt to a mathematical certainty.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)

(internal quotation marks and citations omitted), appeal denied, 95 A.3d 275

(Pa. 2014).

     Instantly, Appellant claims the Commonwealth failed to present

evidence establishing that he was ever in possession of the drugs found on


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Hobson’s person or of the drugs found in the trash can inside the bar where

Appellant fled and was apprehended. Appellant’s Brief at 17.

     The elements of PWID are set forth by statute as follows.

           § 780-113. Prohibited acts; penalties

           (a) The following acts and the causing thereof within
           the Commonwealth are hereby prohibited:

                                     …

           (30) Except as authorized by this act, the
           manufacture, delivery, or possession with intent to
           manufacture or deliver, a controlled substance by a
           person not registered under this act, or a practitioner
           not registered or licensed by the appropriate State
           board, or knowingly creating, delivering or
           possessing with intent to deliver, a counterfeit
           controlled substance.

35 P.S. § 780-113(a)(30).

           To sustain a conviction for PWID, the Commonwealth
           must prove both the possession of the controlled
           substance and the intent to deliver the controlled
           substance. If the contraband is not found on the
           appellant’s person, the Commonwealth must prove
           that the appellant had constructive possession of the
           contraband, which has been defined as the ability
           and intent to exercise control over the substance.
           The Commonwealth may establish constructive
           possession through the totality of the circumstances.

Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa. Super. 2011) (internal

quotation marks and citations omitted), appeal dismissed, 54 A.3d 22 (Pa.

2012).

     Appellant supports his argument based on a narrow and misleading

account of the evidence. Appellant’s Brief at 18-19. Appellant claims the

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packets retrieved from the trashcan were in “clear packets” and the drugs

found on Hobson were in a “black tinted packet,” and the fact the packets

are different “does not support the conviction.”       Id. at 19.    This is a

mischaracterization of the evidence.       At trial, the parties stipulated the

contraband found in the bar’s trashcan “was one clear plastic bag with eight

items, which [the police chemist] described as black Ziploc packets ….”

N.T., 3/26/13, at 72 (emphasis added).            Thus, there was evidence

correlating the item found on Hobson and the items found in the trashcan.

Appellant also challenges the testimony of Officer McCauley, relative to his

ability to observe Appellant discard an item into the trash, based on

conflicting accounts of the various positions of the individuals and the

trashcans.   Appellant’s Brief at 18-19.    Such an argument addresses the

credibility of the witnesses, which is the sole province of the factfinder.

Antidormi, supra. As such, Appellant’s claim is more akin to a challenge to

the weight of the evidence. “Where issues of credibility and weight of the

evidence are concerned, it is not the function of the appellate court to

substitute its judgment based on a cold record for that of the trial court.

The weight to be accorded conflicting evidence is exclusively for the fact

finder, whose findings will not be disturbed on appeal if they are supported

by the record.” Commonwealth v. Griffin, 684 A.2d 589, 596 (Pa. Super.

1996) (citations omitted).   We will not disturb those findings, which we




                                   - 15 -
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conclude are supported by the record. For these reasons, Appellant’s second

issue also fails.

        Notwithstanding our disposition of Appellant’s issues, we discern a

legality of sentencing issue, which we address sua sponte. “[A] challenge to

the legality of the sentence can never be waived and may be raised by this

Court sua sponte.”        Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.

Super. 2014).         As noted above, the trial court imposed a mandatory

minimum sentence of three years’ incarceration based on a prior offense and

the     weight   of    the   cocaine     possessed   pursuant   to    18   Pa.C.S.A.

§ 7508(a)(3)(i).6 In light of recent precedent interpreting the import of the

____________________________________________
6
    The statute provides as follows.

              § 7508.        Drug      trafficking   sentencing      and
              penalties

              (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 … shall, upon
              conviction, be sentenced to a mandatory minimum
              term of imprisonment and a fine as set forth in this
              subsection:

              (i) when the aggregate weight of the compound or
              mixture containing the substance involved is at least
(Footnote Continued Next Page)

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United States Supreme Court’s ruling in Alleyne v. United States, 133 S.

Ct. 2151 (2013), we conclude the trial court imposed an illegal sentence.

See generally Commonwealth v. Newman, 99 A.3d 86, 89 (Pa. Super.

2014) (en banc); Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super.

2014); Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014).

             [I]ssues pertaining to Alleyne go directly to the
             legality of the sentence. [] A challenge to the
             legality of a sentence … may be entertained as long
             as the reviewing court has jurisdiction. [] [I]f no
             statutory authorization exists for a particular
             sentence, that sentence is illegal and subject to
                       _______________________
(Footnote Continued)
             2.0 grams and less than ten grams; … if at the time
             of sentencing the defendant has been convicted of
             another drug trafficking offense: three years in
             prison and $10,000 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.

                                                 …

18 Pa.C.S.A. § 7508.


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               correction. An illegal sentence must be vacated.
               Issues relating to the legality of a sentence are
               questions of law[.] … Our standard of review over
               such questions is de novo and our scope of review is
               plenary.

Fennell, supra at 15 (internal quotation marks and citations omitted).

     Newman and Valentine concluded that unconstitutional portions of

the similarly structured mandatory sentencing statutes at 42 Pa.C.S.A.

§§ 9712, 9712.1, and 9713 were “essentially and inseparably connected,”

rendering the statutes unconstitutional in their entirety.     Newman, supra

at 101; Valentine, supra at 811. “Moreover, Newman makes clear that ‘it

is manifestly the province of the General Assembly to determine what new

procedures must be created in order to impose mandatory minimum

sentences in Pennsylvania following Alleyne.’”       Valentine, supra at 812,

quoting Newman, supra at 102.

     In Fennell, this Court, following the reasoning set forth in Newman

and Valentine, found section 7508 facially unconstitutional and mandatory

sentences imposed thereunder illegal even where the fact triggering the

imposition of the mandatory minimum, to wit the weight of the drugs

possessed by the defendant, was, as was the case here, stipulated to at

trial. Fennell, supra at 20; accord Commonwealth v. Vargas, 108 A.3d

858, 876 (Pa. Super. 2014) (en banc). Accordingly, we are constrained to

vacate   the    June   26,   2013   judgment   of   sentence   and   remand   for

resentencing in accordance with this memorandum.


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      In sum, we conclude the suppression court committed no error in

denying Appellant’s suppression motion on the basis that the police had

probable cause to arrest Appellant. We further conclude the evidence was

sufficient to establish Appellant possessed the seized contraband and sustain

his conviction for PWID.     Accordingly, we affirm appellant’s conviction.

However, we vacate the June 26, 2013 judgment of sentence as illegal, and

remand for resentencing, without consideration of the mandatory minimum,

consistent with this memorandum.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2015




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