J-S26015-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                     v.

ALPHONSO REED

                          Appellant                No. 1708 MDA 2016


             Appeal from the PCRA Order September 27, 2016
             In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0001482-2011


BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 22, 2017

     Alphonso Reed appeals from the September 27, 2016 order denying

his PCRA petition.    We affirm in part, reverse in part, and remand this

matter for resentencing.

     The PCRA court ably set forth the following facts relevant to this

appeal:

            On or about June 2, 2011, Detectives Ryan Mong [“Det.
     Mong”] and Adam Saul [“Det. Saul”] were conducting
     surveillance of an alleged drug sale between an unknown
     individual and an undercover officer, Sergeant Brett Hopkins
     [“Sgt. Hopkins”]. A confidential informant arranged for the
     undercover officer to meet an individual identified as Charles
     Holloway [“Holloway”]. After meeting Sgt. Hopkins, Holloway
     made a phone call and a short time later an unidentified
     individual came onto the scene. Det. Mong described him as an
     older man with a graying beard. This individual handed an item
     to Holloway who then turned and immediately handed a bag of
     crack cocaine to the undercover officer. After the transaction

* Former Justice specially assigned to the Superior Court.
J-S26015-17



     was complete, the [detectives] followed the individual on foot
     until they lost sight of him. That individual remained unknown
     and was identified in Lebanon County Detective Bureau
     Department Case Report 11-131-1 as merely “Juan Doe.”

            On or about August 19, 2011, at approximately 7:30 p.m.,
     [Appellant] was walking along the 800 block of Chestnut Street,
     Lebanon, when Det.’s Mong and Saul drove by in an unmarked
     vehicle. Det. Mong recognized [Appellant] as the “Juan Doe”
     with the graying beard from the June 2, 2011 incident. Det.
     Mong and [Det.] Saul approached [Appellant] in order to
     determine his name. The Detectives had their badges in plain
     view and Det. Mong identified himself to [Appellant]. Det. Mong
     testified that he did not intend to arrest [Appellant] at that time.
     Det. Saul stood slightly behind Det. Mong during the interaction
     with [Appellant], close enough to hear the conversation and to
     assist Det. Mong if needed. Det. Mong asked [Appellant] for
     some identification.        [Appellant] handed a Pennsylvania
     Identification Card to Det. Mong, who radioed the information to
     dispatch to determine if there were any outstanding warrants for
     [Appellant]. Det. Mong told [Appellant] that they had stopped
     him because they recognized him as a person who had sold
     drugs to an undercover officer. Det. Mong returned [Appellant’s]
     identification. Dispatch notified Det. Mong that there were no
     outstanding warrants for [Appellant]. Det. Mong testified that he
     could not recall if he had returned [Appellant’s] identification
     before stating that [Appellant] was stopped because of the sale
     of drugs.

           Det. Mong asked [Appellant] if he had any drugs or
     weapons on his person. [Appellant] replied in the negative.
     Det. Mong then asked [Appellant] if he would consent to a
     search of his person. [Appellant] replied in the affirmative. This
     search produced thirteen (13) bags of crack cocaine, two cell
     phones, and money. After the search, [Appellant] was arrested
     and read his Miranda warnings. [Appellant] was charged as a
     result of the items found on him on August 19, 2011[,] as well
     as the sale of drugs to an undercover officer on June 2, 2011.

PCRA Court Opinion, 12/21/16, at 2-4.




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     Appellant filed an omnibus pre-trial motion seeking the suppression of

the evidence recovered during the August 19, 2011 seizure and search, and

dismissal of the charges arising therefrom, contending that the detectives

illegally stopped him on the street. Following a hearing on the matter, the

court granted Appellant’s motion to suppress, finding that Appellant’s

consent was not voluntarily given.     The court suppressed the evidence

obtained as a result of the search of Appellant’s person, and the charges

arising from that incident were ultimately dismissed.    After a bench trial,

Appellant was found guilty of the charges stemming from his participation in

the June 2, 2011 drug transaction with Sergeant Hopkins.

     Appellant filed a timely notice of appeal to this Court challenging the

sufficiency of the Commonwealth’s evidence and arguing that the Court

improperly weighed the evidence in the Commonwealth’s favor. We affirmed

Appellant’s judgment of sentence, finding that his challenge to the weight of

the evidence was waived since he failed to raise the issue before the trial

court, and that the Commonwealth had adduced sufficient evidence to

support his convictions.     Commonwealth v. Reed, 91 A.3d 1295

(Pa.Super. 2013) (unpublished memorandum).

     On March 17, 2014, Appellant filed a pro se PCRA petition. Counsel

was appointed.   Appointed counsel then filed a series of amended PCRA

petitions raising numerous challenges to the effectiveness of trial counsel,

including allegations that trial counsel failed to preserve Appellant’s

                                    -3-
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challenge to the weight of the evidence and failed to file an appeal with

regards to his pre-trial motion.    The PCRA court granted Appellant partial

relief, reinstated his right to file a post-sentence motion and direct appeal,

but limited Appellant’s post-sentence claims to his challenge to the weight of

the evidence and any issue stemming from his pre-trial motion. The court

denied   Appellant’s   subsequent    post-sentence   motion,     and   Appellant

appealed to this Court. This Court reversed the PCRA court’s ruling.        We

found that the court erred in reinstating Appellant’s post-sentence motion

and direct appeal rights nunc pro tunc, and remanded the case to the PCRA

court directing it to consider Appellant’s claims under the auspices of the

PCRA.    Commonwealth v. Reed, 151 A.3d 1135 (Pa.Super. 2016)

(unpublished memorandum).

      On remand, the PCRA court denied Appellant’s PCRA petition.

Appellant filed a timely appeal, and complied with the court’s order to file a

Rule 1925(b) concise statement of matters complained of on appeal.          The

court filed its Rule 1925(a) opinion. This matter is now ready for our review.

      Appellant presents five questions for our consideration:

      1. Whether Trial Counsel was ineffective for failing to preserve
         Appellant’s challenge to the weight of the evidence on direct
         appeal?

      2. Whether Trial Counsel was ineffective for failing to preserve
         Appellant’s challenge to the Court’s partial denial of
         Appellant’s Suppression Motion regarding the reasonable
         suspicions for the stop and the initial probable cause for the
         arrest of the Appellant on direct appeal?

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      3. Whether Trial Counsel was ineffective for failing to challenge
         the Court’s imposition of a mandatory minimum sentence for
         Appellant’s delivery of a controlled substance conviction under
         Alleyne v. U.S.[, 133 S.Ct. 2151 (2013)]?

      4. Whether Trial Counsel was ineffective for failing to object to
         the lab reports at trial?

      5. Whether Trial Counsel was ineffective for failing to properly
         impeach Sergeant Hopkins regarding the race of the Appellant
         by not calling [Detective] Saul to testify?

Appellant’s brief at 4-5.

      Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez-Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015).         We will not overturn the PCRA

court’s findings of fact “unless there is no support for [those] findings in the

certified record.” Id.

      Appellant poses five challenges impugning the effectiveness of trial

counsel. As discussed further infra, we find Appellant’s third issue directly

implicates the legality of his sentence, and thus, we will examine it

separately under the appropriate rubric.      As it concerns Appellant’s first,

second, fourth, and fifth claims, when we review a claim of ineffective

assistance of counsel, “we begin with the presumption [that] counsel is

effective.”   Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017)




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(citation omitted). In order to succeed on such a claim, an appellant must

establish, by a preponderance of the evidence:

      (1) the underlying claim has arguable merit;             (2) no
      reasonable basis existed for counsel’s actions or failure to act;
      and (3) appellant suffered prejudice as a result of counsel’s
      error, with prejudice measured by whether there is a reasonable
      probability that the result of the proceeding would have been
      different.

Id. at 296-297. Finally, we are “not required to analyze the elements of an

ineffectiveness claim in any particular order of priority; if a claim fails under

any necessary element . . . the court may proceed to that element first.”

Id. at 297 (citation omitted).

      First,   Appellant   alleges   that   trial   counsel   rendered   ineffective

assistance of counsel when he failed to preserve a challenge to the weight of

the evidence for appellate review. He asserts that, had trial counsel pursued

the issue, he would have been granted a new trial.              In support of this

position, Appellant highlights a variety of areas where the Commonwealth

failed to establish elements of the crimes for which he was charged.            For

example, he notes that the Commonwealth did not present evidence

establishing that he and Holloway were associates, that Holloway called

Appellant to facilitate the drug buy, or that Appellant had delivered narcotics

to Holloway.     Appellant insists that the court should have credited his

testimony that he was in New York City at the time of the undercover drug

buy, and discredited testimony by the detectives indicating that Appellant



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was involved in the transaction. Further, he emphasizes the disparity in the

initial investigative documents, which identified the unknown individual as

“Juan Doe,” suggesting that the suspect was of Hispanic origin, when

Appellant is, in fact, a black man. Thus, he concludes that, had trial counsel

preserved his weight of the evidence claim for review, he would have been

awarded a new trial.

      The PCRA court determined that trial counsel presented a reasonable

strategic basis for failing to pursue a weight claim, and that Appellant had

not been prejudiced by that failure. The court credited the testimony of trial

counsel, Michael Bechtold, Esquire, who explained that, after discussing the

issue with Appellant, they agreed that filing a post-sentence motion with the

trial court would not be successful.   Trial counsel explained that Appellant

arrived at this decision after he disclosed to Appellant that, since the judge

is the trier of fact in a bench trial, challenging the weight of the evidence

before the trial court would not likely succeed.

      The PCRA court agreed with Attorney Bechtold’s assessment, and

found that, since the trial court “heard all of the facts and rendered a verdict

based on those facts, it can be presumed that [the trial court] did not find

that the evidence was contrary to the verdict.” PCRA Opinion, 12/12/16, at

9.   We find that trial counsel offered a reasonable basis for abandoning

Appellant’s weight claim.




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       We observe that “one of the least assailable reasons for granting or

denying a new trial is the lower court’s conviction that the verdict was or

was not against the weight of the evidence and that a new trial should be

granted in the interest of justice.”            Commonwealth v. Leatherby, 116

A.3d 73, 82 (Pa.Super. 2015) (citation omitted).             In order to succeed on

such a claim, Appellant would have to prove that the verdict was “so

contrary    to   the   evidence     that   it   shocks   one’s   sense   of   justice[.]”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014).

       Under the circumstances of this case, a successful challenge to the

weight of the evidence required Appellant to convince the judge, who served

as trier of fact, that his own verdict was so contrary to the evidence that it

shocked his sense of justice.1 In light of this arduous standard, we find that

Attorney Bechtold’s decision to forego post-sentence review before the trial

court was supported by his reasonable belief that such a challenge faced no

realistic chance of success. Hence, Appellant is not entitled to relief.
____________________________________________


1
  It is also worth noting that the majority of Appellant’s argument reads as a
challenge to the sufficiency of the evidence, not the weight of the evidence,
as he highlights numerous areas where he asserts that the Commonwealth
failed to carry its burden of proof. Ignoring for a moment that this Court has
previously determined that the Commonwealth proffered sufficient evidence
to support Appellant’s convictions, see Commonwealth v. Reed, 91 A.3d
1295 (Pa.Super. 2013) (unpublished memorandum), such an argument is
not in keeping with our standard of review. Commonwealth v. Diaz, 152
A.3d 1040, 1046 (Pa.Super. 2016) (stating, “When a defendant challenges
the weight of the evidence, he ‘concedes that the evidence is sufficient to
sustain the verdict[.]’”).



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      Appellant’s second issue alleges that trial counsel was ineffective for

failing to appeal what he characterizes as the trial court’s partial denial of his

pre-trial motion to suppress.    Appellant asserts that Detectives Mong and

Saul lacked reasonable suspicion when they stopped and questioned him.

He concedes that the trial court granted his motion to suppress. However,

he notes that the court based its decision on the lack of voluntary consent to

the search performed at that time, rather than on an alternative basis,

namely, the unlawfulness of the stop itself.

      Appellant confines his argument to the assertion that, if trial counsel

had appealed that aspect of the court’s ruling, then the lawfulness of his

stop as a whole would have been assailed, and all the evidence arising

therefrom, including evidence of his identity, would have been suppressed.

Appellant argues that, without knowledge of his identity, the police could not

have arrested him for the offenses arising in from the June 2, 2011 drug

sale. Thus, he claims trial counsel rendered ineffective assistance of counsel

when he failed to preserve a challenge to the trial court’s supposed partial

denial of his suppression motion.      We find this argument lacks arguable

merit.

      Here, Appellant filed an omnibus pre-trial motion requesting the

suppression of the evidence discovered during his encounter with Detectives

Mong and Saul. Following a hearing on the matter, the trial court granted

Appellant’s motion to suppress and the charges arising from the illegal

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search of Appellant’s person were dismissed.          Since Appellant’s requested

relief was granted by the trial court, trial counsel had no basis, and Appellant

had no standing, to pursue an appeal. See Pa.R.A.P. 501; Commonwealth

v. Fitzpatrick, 2017 PA Super 101 (Pa.Super. 2017) (noting “only an

aggrieved party can appeal from an order entered by the lower court.”).

      Further, we have long held that a defendant’s identity is not subject to

suppression.     Hence, assuming, arguendo, that this issue was properly

before us, Appellant would not be entitled to relief. See Commonwealth v.

Santiago, 2017 PA Super 116 (Pa.Super. 2017) at *13 (noting the

distinction    between   evidence      about    identity,   which    is   “potentially

suppressible,” and the suppression of identity itself, “a theory that has been

expressly rejected,” and holding, “[t]his distinction is the implicit and

practical consequence of the rule that identity itself is never suppressible,

while evidence about identity is.”). As such, trial counsel was not ineffective

for failing to appeal Appellant’s pre-trial suppression motion.

      Appellant’s fourth issue assails trial counsel’s decision to stipulate to

the admission of a lab report which confirmed that the substance passed to

Sergeant Hopkins was an illegal narcotic.           Appellant’s argument in this

respect merely recites the test for establishing ineffectiveness and baldly

postulates that counsel’s failure to object to the lab report meets this

burden. Appellant’s only substantive assertion suggests that this argument

has arguable     merit since   trial    counsel’s stipulation       denied him    the

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opportunity to confront the author of the report at trial.         He does not

otherwise develop an argument contending that trial counsel lacked a

reasonable basis or that he was prejudiced by this purported error.           For

example, in order to establish prejudice, Appellant only highlights “the jury’s

verdict and the penalties that followed such verdict.” Appellant’s brief at 43.

Notwithstanding the fact that Appellant was convicted following a bench-

trial, we find trial counsel had a reasonable basis for stipulating to the entry

of the lab report.

      During trial, the Commonwealth sought to enter into the record a lab

report from the state police crime lab.       N.T. Trial, 11/15/12, at 14.   That

report indicated that the substance provided to Sergeant Hopkins by

Holloway and Appellant tested positive for cocaine. Id. The Commonwealth

moved for admission, and trial counsel did not object.          Thus, the court

admitted the lab report into evidence.          At the PCRA hearing, Attorney

Bechtold explained his decision as follows:

      Prosecutor:     As it relates to the lab report issue, you did
      stipulate to the lab results?

      Attorney Bechtold: That’s correct.

      Prosecutor: You heard [Appellant’s] allegations that you were
      ineffective for doing so. What was your reasoning for acting in
      that fashion?

      Attorney Bechtold: From day one when I met [Appellant], he
      maintained his innocence throughout even until today. He told
      me repeatedly he wasn’t in Lebanon at the time of this incident.
      He was in the State of New York with some family or something

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      to that effect. So he repeatedly told me and asked me to argue
      on his behalf that he was not the person at the scene. So
      therefore the substance or what was being transferred or sold on
      this particular date was completely irrelevant. In fact, even the
      Judge alluded to in my own statement there, how it was a waste
      of argument and it weakened our other arguments and was
      something not in our defense.

      Prosecutor:    So did you see any point in bringing in the
      laboratory technicians to testify at trial?

      Attorney Bechtold:    No.   I thought it would weaken our other
      arguments.

N.T. PCRA Hearing, 4/27/15, at 34-35.

      We note that the PCRA court credited Attorney Bechtold’s testimony,

and his assertions are supported by the record.         Appellant maintained

throughout the course of his trial that he was not present in Lebanon at the

time of the transaction. Rather, he testified that he had spent the week in

New York visiting friends and family and working for his uncle. N.T. Trial,

11/15/12, at 125-134.      Indeed, Appellant repeated this claim at his PCRA

hearing, stating, “That’s what I’m saying. I wasn’t there at all. That is it in

this case.”   N.T. PCRA Hearing, 4/27/15, at 12.          Thus, whether the

substance provided to Sergeant Hopkins was a narcotic was irrelevant to

Appellant’s defense. As such, we find Attorney Bechtold’s stipulation to the

lab report was based on a reasonable strategic maneuver intended to

maintain the potency of his argument.

      Appellant’s fifth issue contends that trial counsel was ineffective for

failing to impeach Sergeant Hopkins regarding Appellant’s race as listed in

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certain police reports. He emphasizes the discrepancy between early police

reports describing the unknown individual who participated in the June 2,

2011 drug transaction as “Juan Doe,” implying that Sergeant Hopkins

suspected the unknown individual was of Hispanic origin, and reports

created after Appellant’s arrest which listed the suspect as a “black male.”

Although Appellant’s argument is not clear on this point, he seems to be

arguing that Detective Saul’s testimony would have called into question

whether he was involved in the drug transaction, and thus, that trial counsel

was ineffective for failing to offer that testimony.   We find that, even if

Attorney Bechtold erred in failing to call Detective Saul, Appellant was not

prejudiced.

     As noted above, we previously affirmed Appellant’s judgment of

sentence, finding that his convictions were supported by sufficient evidence,

Commonwealth v. Reed, 91 A.3d 1295 (Pa.Super. 2013) (unpublished

memorandum), relying, in part, on Sergeant Hopkins’ testimony that

Appellant provided Holloway with the crack cocaine. Id. at *4. However,

Sergeant Hopkins himself was aware of the discrepancies contained within

some of the police reports:

     Defense Counsel: And you would agree with me that [Appellant]
     has been identified on there as being Juan Doe in virtually every
     single report that was processed in the transaction?

     Sergeant Hopkins: Yes, and I didn’t prepare that because we
     didn’t have his real name.



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      Defense Counsel: Did you speak with [Appellant] at all during
      the alleged transaction?

      Sergeant Hopkins: No, I did not.

      Defense Counsel: So you identified [Appellant] as being a
      Hispanic gentleman basically all the way up until the time that
      he is ultimately taken into custody almost three months – two to
      three months later, correct?

      Sergeant Hopkins: Yes.

      ....

      Defense Counsel: That’s my question, Sergeant Hopkins, is you
      prepared this [narrative] report – I’m gathering you prepared
      this report on the date or immediately after the date in question,
      June 2nd, correct?

      Sergeant Hopkins: Pretty much.

      Defense Counsel: And in that report, Sergeant Hopkins, you
      identified [Appellant] as being a black male, correct?

      Sergeant Hopkins: He could pass for either.

N.T. Trial, 11/15/12, at 31-32.      On re-direct examination, the sergeant

discussed his difficulty in characterizing Appellant’s race:

      Prosecutor: And you would agree with me that [Appellant] could
      be classified as a light-skinned black male, am I correct?

      Sergeant Hopkins: Yes, ma’am.

      Prosecutor: You testified on cross[-examination] that he could
      be considered either Hispanic or [a] black male?

      Sergeant Hopkins: Yes, I didn’t hear him speak, so I couldn’t
      tell what kind of dialect he had or accent.

Id. at 41.



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      In addition, Detective Mong testified at trial that he was the assigned

surveillance officer for Sergeant Hopkins on June 2, 2011. Id. at 45. After

the transaction concluded, Detective Mong followed Appellant, and at one

point they crossed paths within two-feet of each other, providing the

detective ample opportunity to observe Appellant’s face.            Id. at 47.

Subsequently, while on surveillance detail on August 19, 2011, Detective

Mong noticed Appellant walking down the street and immediately recognized

him as the unidentified individual from the prior drug transaction. Id. at 50.

      In light of the testimony provided at trial, it is clear that the trier-of-

fact was well aware of the police officers’ inability to accurately characterize

the then-unknown suspect’s race.       It is less clear how Detective Saul’s

testimony would have called Sergeant Hopkins’ testimony into question, and

Appellant’s argument does not illuminate that claim.         Further, Sergeant

Hopkins admitted the difficulty he had in identifying the drug courier, but

provided a reasonable explanation for the discrepancy between the early and

later reports.

      Significantly, Detective Mong’s testimony indicated that he was not

relying on the description of the unknown suspect contained within any

police report when he recognized Appellant on August 19, 2011. Rather, he

remembered Appellant from his own observations on June 2, 2011.

Therefore, even if Detective Saul were called to impeach Sergeant Hopkins,

the trial court had sufficient evidence to find that Appellant participated in

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the drug buy. Reed, supra. Hence, Appellant was not prejudiced by trial

counsel’s failure to offer Detective Saul’s testimony, and no relief is

warranted.

       Finally, turning to Appellant’s third issue, Appellant claims that trial

counsel was ineffective for failing to object to the court’s imposition of an

illegal sentence. He posits that, pursuant to Alleyne v. United States, 133

S.Ct. 2151 (2013), his sentence was not lawful since the court imposed a

school zone mandatory minimum sentence, pursuant to then-enacted 18

Pa.C.S. § 6317,2 and a school zone enhancement without first determining

beyond a reasonable doubt that the drug sale had occurred within a school

zone. He alleges that trial counsel should have challenged his sentence in

light of the holding in Alleyne. Although Appellant raises this claim under

the auspices of a challenge to the effectiveness of trial counsel, at its heart,

it contests the legality of his sentence. Thus, we analyze his claim according

to the standard of review germane to such an allegation. Commonwealth

v. Mosley, 114 A.3d 1072, 1087 (Pa.Super. 2015) (noting that application
____________________________________________


2
  Section 6317, which has been ruled unconstitutional, required imposition of
a two-year mandatory minimum jail term for a possession with intent to
deliver conviction pursuant to 35 P.S. § 780-113(a)(30), if “the possession
with intent to deliver of the controlled substance occurred within 1,000 feet
of the real property on which is located a public, private or parochial
school[.]” 18 Pa.C.S. § 6317 (held unconstitutional in Commonwealth v.
Hopkins, 117 A.3d 247 (Pa.Super. 2015)). That statute stated that its
provisions were not elements of the crime and were to be determined at
sentencing by the court under a preponderance-of-the-evidence standard.



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of mandatory minimum sentence raises illegal sentence concern, which may

be treated sua sponte by this Court).            For the following reasons, we find

Appellant is entitled to relief.

       A challenge to the legality of sentence raises a question of law, and

thus, our standard of review is de novo, and our scope of review is plenary.

Commonwealth v. Blakney, 152 A.3d 1053, 1054 (Pa.Super. 2016).

      In Alleyne, supra, the United States Supreme Court held that “[a]ny

fact that, by law, increases the penalty for a crime is an ‘element’ that must

be submitted to the jury and found beyond a reasonable doubt.” Alleyne,

supra at 2155. Pursuant to Alleyne, a defendant has a constitutional right

to have the finder-of-fact decide the existence of any fact, other than a prior

conviction, beyond a reasonable doubt if that fact triggers application of a

mandatory minimum sentence. Instantly, the distance calculation necessary

for application of § 6317 was found by the sentencing court following a

stipulation by the parties.        Such a stipulation does not satisfy Alleyne.

Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa.Super. 2014) (rejecting

argument that defendant’s stipulation as to weight of drugs recovered

satisfied mandate of Alleyne); Melendez-Negron, supra.

      Further, we observe that the trial court imposed Appellant’s sentence

on January 23, 2013. The Supreme Court decided the Alleyne decision on

June 17, 2013. Appellant’s judgment of sentence was not affirmed by this

Court until November 25, 2013. Commonwealth v. Reed, 91 A.3d 1295

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(Pa.Super. 2013) (unpublished memorandum).            As Alleyne was issued

during the pendency of Appellant’s direct appeal, it was applicable to his

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

banc); Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.Super. 2015)

(observing, “In [Newman], we noted that Alleyne will be applied to cases

pending on direct appeal when Alleyne was issued.”).           Moreover, since

Appellant raised this issue in a timely PCRA petition, he is entitled to be re-

sentenced for his conviction for possession with intent to deliver without

consideration of the mandatory minimum sentence contained within § 6317.

Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015) (reversing PCRA

order and vacating judgment of sentence where petitioner raised Alleyne

challenge in timely PCRA petition).3 Therefore, having found the PCRA court

erred in denying Appellant’s claim arising pursuant to Alleyne, we reverse

the PCRA order in that regard and affirm in all other respects, vacate the

judgment of sentence, and remand for resentencing consistent with this

decision.

____________________________________________


3
 Appellant also levied a challenge to the trial court’s application of a “school
zone enhancement” to his sentence based on Alleyne. This Court has
previously found that Alleyne does not apply to sentencing enhancements
which only direct a court to consider a different range of potential minimum
sentences under the guidelines. Commonwealth v. Ali, 112 A.3d 1210,
1226 (Pa.Super. 2015), vacated and remanded on other grounds, 149 A.3d
29 (Pa. 2016).      Hence, that aspect of Appellant’s sentence did not
contravene Alleyne.



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      Order affirmed in part and reversed in part.            January 23, 2013

judgment    of   sentence    vacated.       Case   remanded   for   resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




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