J-E01004-14



                             2014 PA Super 289



COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JOSE VARGAS,

                        Appellant                  No. 1415 EDA 2012


     Appeal from the Judgment of Sentence Entered January 12, 2012
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0001895-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
        PANELLA, J., DONOHUE, J., ALLEN, J., LAZARUS, J., MUNDY, J.,
        and OLSON, J.

CONCURRING AND DISSENTING OPINION BY BENDER, P.J.E:

FILED DECEMBER 31, 2014

     After careful review, I must respectfully dissent.   While I agree with

the Majority that the evidence was sufficient to prove that Appellant

constructively possessed the drug packaging material and heroin residue

found in the hotel room, I disagree with the Majority that the evidence was

sufficient to prove that a conspiracy existed between Appellant and Mr.

Saldana which “encompassed, as its object, the cutting and packaging of the

377.73 grams of uncut heroin that was discovered in Mr. Saldana’s vehicle.”

Majority Decision at 29. Accordingly, I would reverse Appellant’s convictions

for conspiracy and PWID. Furthermore, even if the evidence were sufficient
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to support Appellant’s convictions for those crimes, I join the Majority in its

determination that the mandatory minimum sentence imposed for his PWID

conviction is illegal because 18 Pa.C.S. § 7508 “is unconstitutional in its

entirety. Majority Decision at 35. Nevertheless, even if Section 7508 could

survive constitutional scrutiny, I would still conclude that Appellant’s

sentence is illegal because his stipulation to the drug weight triggering the

mandatory minimum provided by Section 7508 does not circumvent the

dictates of Alleyne v. United States, 133 S.Ct. 2151 (2013).

                                      I.

      In reviewing the sufficiency of the evidence, I am cognizant that this

Court must view “all the evidence admitted at trial, together with all

reasonable inferences which can be drawn therefrom, in the light most

favorable to the Commonwealth[]” and determine if “the jury (or the court

as fact-finder) could have properly found that each element of the offense

was proven beyond a reasonable doubt.”       Commonwealth v. Scott, 597

A.2d 1220, 1221 (Pa. Super. 1991) (citations omitted). However,

      it is just as important to remember that the inferences must flow
      from facts and circumstances proven in the record, and must be
      of “such volume and quality as to overcome the presumption of
      innocence and satisfy the jury of the accused’s guilt beyond a
      reasonable doubt. Commonwealth v. Clinton, 391 Pa. 212,
      219, 137 A.2d 463, 466 (1958). The trier of fact cannot base a
      conviction on conjecture and speculation and a verdict which is
      premised on suspicion will fall even under the limited scrutiny of
      appellate review.




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Commonwealth v. Gruff, 822 A.2d 773, 784 (Pa. Super. 2003) (Bender, J.

concurring and dissenting) (quoting Scott, 597 A.2d at 1221) (emphasis

added in Gruff omitted).

       Applying these standards to the instant facts, I concede that the

evidence was adequate to prove that “Appellant constructively possessed the

heroin residue and drug paraphernalia that was discovered in the ‘heroin

mill’ of a hotel room….” Majority’s Decision at 13. However, for the reasons

that follow, I cannot agree with the Majority’s conclusion that “Appellant is

criminally liable for the substantive offense of possessing the 377.73 grams

of raw, uncut heroin that was discovered in Mr. Saldana’s vehicle[]” because

Appellant was “a member of an ongoing conspiracy with Mr. Saldana” which

“encompassed, as its object, the cutting and packaging of” those drugs.

Majority Decision at 13-14, 29.

       Initially, the Commonwealth did not present evidence proving the

extent of Appellant’s involvement in the ‘mobile heroin mill,’ other than his

presence in the hotel room.1 More importantly, the Commonwealth provided

no evidence of the nature or degree of the relationship between Appellant

____________________________________________


1
  While a drug dog positively indicated on Appellant’s vehicle, I believe it is
speculative to conclude that Appellant transported the drug paraphernalia to
the hotel room where no other evidence suggested as much. I also note
that it is curious that the Commonwealth was able to obtain a video
surveillance tape of Mr. Saldana arriving at the hotel room, yet produced no
video of Appellant’s entering the room with that contraband.




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and Mr. Saldana, or their respective roles in the drug distribution operation.

There was also no evidence demonstrating that Appellant knew about the

drugs located in the secret compartment in Mr. Saldana’s vehicle.

      What the Commonwealth’s evidence did prove was that Mr. Saldana

arrived at the hotel room approximately one minute before Officer Clee

entered the parking lot.      See Majority Decision at 9.           Mr. Saldana

approached and entered the hotel room empty handed.           Id.    He did not

bring with him the 377.73 grams of heroin, instead leaving those drugs in a

secret compartment in his vehicle. Mr. Saldana also left his jewelry in his

vehicle, which Officer Clee recognized as a sign that Mr. Saldana “was about

to engage in a fight[] or that[,] as a drug dealer[,] he had a fear of being

robbed.” Majority Decision at 2 (quoting N.T. Trial, 10/17/11, at 18-19).

      Viewing   this   evidence   in   the   light   most   favorable   to   the

Commonwealth, it indicated - at most - that Mr. Saldana may have been

about to enter a conspiratorial relationship with Appellant and Mr. Carrasco

to distribute the raw heroin left inside his vehicle.           However, the

Commonwealth failed to proffer evidence proving that Appellant and Mr.

Saldana actually entered into such an agreement with a shared criminal

intent.   See Commonwealth v. Fisher, 80 A.3d 1186, 1190-1191 (Pa.

2013) (setting forth elements of criminal conspiracy). Indeed, the evidence

suggested that at the point when Mr. Saldana arrived, he did not even trust

that Appellant would not rob him, making it unreasonable to infer that the

two men had established a conspiratorial relationship involving over

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$100,000 worth of heroin.      Moreover, evidence that ‘thousands of bags of

heroin’ had been cut and packaged before Mr. Saldana arrived at the hotel

room does not prove that Appellant and Mr. Saldana had entered into a

conspiracy to cut and distribute the drugs discovered in the secret

compartment of Mr. Saldana’s vehicle.

      In sum, I believe that the evidence presented by the Commonwealth

suggests that Appellant and Mr. Saldana had some sort of an association,

and both were individually involved to some extent in a major heroin

distribution operation. However, the evidence is not sufficient to establish

that these two men entered a conspiratorial relationship encompassing the

cutting and packaging of the heroin secreted in Mr. Saldana’s vehicle.

Accordingly, I would reverse Appellant’s convictions for conspiracy and

PWID.

                                         II.

      Nevertheless,    even   if   the   evidence   were   sufficient   to   sustain

Appellant’s PWID conviction, I join the Majority’s conclusion that Appellant’s

sentence is illegal, as this Court is compelled to find 18 Pa.C.S. § 7508

unconstitutional.     See Commonwealth v. Newman, 99 A.3d 86 (Pa.

Super. 2014) (en banc). Furthermore, in Commonwealth v. Watley, 81

A.3d 108 (Pa. Super. 2013) (en banc), our Court noted that 42 Pa.C.S. §

9712.1 was “no longer constitutionally sound in light of Alleyne….” Id. at

113 n.2.   However, we declined to address the constitutionality of that

provision because Watley did not raise that issue on appeal. Id. at 113 n.2.

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We then upheld Watley’s mandatory sentence under section 9712.1, finding

that the dictates of Alleyne were satisfied.    In our more recent en banc

decision in Newman, we addressed the constitutionality of section 9712.1 in

light of Alleyne, despite the appellant’s failure to preserve the issue below,

because “a challenge to a sentence premised upon Alleyne … implicates the

legality of the sentence” and, thus, it “cannot be waived on appeal.”

Newman, 99 A.3d at 90.        We ultimately held that the same mandatory

sentencing statute at issue in Watley – 42 Pa.C.S. § 9712.1 – is

unconstitutional.   Therefore, our decision in Watley is no longer good law in

light of Newman.

      Moreover, I write separately to note an additional and independent

ground that renders Appellant’s sentence illegal.     The legality of Section

7508 notwithstanding, Appellant’s stipulation to the weight of the drugs

which triggered the mandatory minimum sentence imposed in this case does

not satisfy, or otherwise circumvent, the dictates of Alleyne v. United

States, 133 S.Ct. 2151 (2013), as that stipulation was made before

Alleyne was decided.

      Appellant’s stipulation to the authenticity and accuracy of the Lab

Report detailing the weight of heroin seized in this case does not save

Appellant’s mandatory minimum sentence from direct scrutiny under

Alleyne. Simply put, such a stipulation has radically different consequences

in the post-Alleyne era than it did pre-Alleyne.       Consequently, I would




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conclude that stipulations to drug weights made prior to the time that

Alleyne was decided should not be treated as satisfying Alleyne.

       As I predicted in the dissent I wrote in Commonwealth v. Kleinicke,

895 A.2d 562 (Pa. Super. 2006) (en banc) (Bender, J., dissenting):

       The rationale underlying Blakely[2] and Booker[3] seems
       undeniable, a system of sentencing that attributes a significant
       portion of a criminal defendant's punishment to a finding of fact
       made by a judge upon a preponderance of the evidence standard
       as opposed to a finding by jury utilizing a beyond reasonable
       doubt standard is in derogation of a defendant's right to trial by
       jury and violates due process even if the sentence ultimately
       imposed falls under the statutorily authorized limit for the crime
       in question.

Id. at 587-88.

       Although my dissenting position in Kleinicke was ultimately vindicated

by the United States Supreme Court in Alleyne, the Kleinicke majority’s

position was standing precedent in this Commonwealth at the time of

Appellant’s trial.       That position held that the mandatory sentencing

provisions of 18 Pa.C.S. § 7508, the same statute at issue in this case, 4 only
____________________________________________


2
  Blakely v. Washington, 542 U.S. 296 (2004) (applying the rule in
Apprendi v. New Jersey, 530 U.S. 466 (2000), to Washington State's
determinate sentencing scheme).

3
 United States v. Booker, 543 U.S. 220 (2005) (applying the rule in
Apprendi to the Federal Sentencing Guidelines).
4
  At issue in Kleinicke was 18 Pa.C.S. § 7508(a)(1)(iii), which set forth a
mandatory minimum sentence for the offense of PWID of “five years in
prison and a fine of $50,000 or such larger amount as is sufficient to
exhaust the assets utilized in and the proceeds from the illegal activity”
(Footnote Continued Next Page)


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regulated the minimum sentence and, therefore, “did not offend Apprendi,

Blakely, or Booker….” Kleinicke, 895 A.2d at 574. This is precisely the

logic rejected in Alleyne, which held that “there is no basis in principle or

logic to distinguish facts that raise the maximum [sentence] from those that

increase the minimum [sentence]….” Alleyne, 133 S.Ct. at 2163.

        Operating under the rubric set forth by the Kleinicke majority,

Appellant’s stipulation to the weight of the seized heroin did not constitute a

fact that impacted the factfinder’s determination of guilt under the beyond a

reasonable doubt standard.5          Indeed, 18 Pa.C.S. § 7508(b) itself provides

that:

        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.


                       _______________________
(Footnote Continued)

where “the amount of marijuana involved is at least 50 pounds, or at least
51 live plants….” Although the instant case involves a mandatory minimum
sentence for the offense of PWID pursuant to Section 7508(a)(7)(iii), the
Alleyne implications are identical.
5
  This should be distinguished from the Lab Report’s identification of the
seized substance as heroin, which certainly was a relevant fact to the
determination of Appellant’s guilt for PWID.



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18 Pa.C.S. § 7508(b) (emphasis added). Now, however, “[w]hen a finding

of fact alters the legally prescribed punishment so as to aggravate it, the

fact necessarily forms a constituent part of a new offense and must be

submitted to the jury” and found beyond a reasonable doubt. Alleyne, 133

S. Ct. at 2162.

      The only practical effect of Appellant’s stipulation regarding the weight

of the seized heroin was the relinquishment of his ability to contest that

weight at sentencing, where, under Kleinicke and 18 Pa.C.S. § 7508(b), the

lesser, preponderance of the evidence standard applied.        Pre-Alleyne, it

simply did not matter if the Commonwealth could not prove, beyond a

reasonable doubt, the weight of a drug for purposes of Section 7508. It did

matter pre-Alleyne, however, whether the Commonwealth could convince

the sentencing court of that weight by a preponderance of the evidence.

Thus, a reasonable defense attorney, pre-Alleyne, would not do any

disservice to his client by conceding the weight of the drugs seized if the

Commonwealth could satisfy the lesser burden of proof at sentencing. This

was true, even if a rational argument could have been made, or evidence

produced, that would have made proving the weight under the higher

burden of proof more difficult.    Indeed, such a decision might have been

made to serve judicial economy so as not to burden the trial courts with

unnecessary litigation. Juxtaposed with the higher, post-Alleyne standard

of proof for the same fact, however, it is illogical to believe that a competent

defense attorney would evaluate the decision to stipulate to the weight of a

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controlled substance contained within a lab report in the same manner as

that attorney might have done pre-Alleyne.

     The general rule that a stipulation is treated as proof beyond a

reasonable doubt of the stipulated fact is, in these narrow circumstances, a

grave injustice.   In reality, such pre-Alleyne stipulations only had the

practical effect of conceding that the Commonwealth could prove the weight

of the drugs by a preponderance of the evidence at sentencing. To read any

more into Appellant’s stipulation in this case does a great disservice to

Appellant’s Sixth Amendment rights as articulated in Alleyne.       Thus, in

addition to the Majority’s well-reasoned conclusion that 18 Pa.C.S. § 7508 is

unconstitutional under Newman, I would also conclude that Appellant’s

mandatory minimum sentence is illegal because his pre-Alleyne stipulation

to the weight of the drugs involved did not constitute proof beyond a

reasonable doubt as required by Alleyne.

     Judges Donohue and Lazarus join this concurring and dissenting

opinion.




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