J-S79013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

JACK D. PENNINGTON,

                            Appellant                     No. 3012 EDA 2013


      Appeal from the Judgment of Sentence entered October 11, 2013,
           in the Court of Common Pleas of Montgomery County,
            Criminal Division, at No(s): CP-46-CR-0006758-2012



BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED DECEMBER 18, 2014

       Jack Pennington (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of three counts of delivery of a controlled

substance,      two     counts      of    possession    with   intent   to   deliver

methamphetamine, one count of possession with intent to deliver Percocet,

five counts of dealing in unlawful proceeds, four counts of criminal use of a

communications facility, and one count of possession of drug paraphernalia.1

After careful review, we vacate and remand for resentencing.

       The trial court summarized the pertinent facts and procedural history

as follows:

____________________________________________


1
 35 P.S. § 780-113(a)(16) and (30), 18 Pa.C.S.A. §§ 5111(a)(1), 7512(a),
and 35 P.S. § 113(a)(32).



* Retired Senior Judge assigned to Superior Court.
J-S79013-14


           [T]he Narcotics Enforcement Team of the Montgomery
     County Detective Bureau conducted a wiretap investigation into
     Appellant’s involvement in the sale of methamphetamine and
     Percocet. As a result of that investigation, Appellant, a retired
     detective sergeant with the Norristown Police Department, was
     arrested on June 19, 2012, in connection with several drug
     transactions.

           At the preliminary hearing on August 28, 2012, Detective
     James Vinter, the lead detective of the investigation, testified
     that on June 19, 2012, surveillance observed Appellant meet
     with his drug source in the parking lot of the Plymouth Meeting
     Mall. Appellant exited his vehicle, and went over to the van his
     drug source was in. Appellant leaned into the driver’s side
     window of the van for several seconds. Believing that a drug
     transaction occurred, the surveillance officers moved in to
     effectuate an arrest. Appellant was taken into custody and both
     Appellant’s vehicle and the van were searched. It was stipulated
     at the preliminary hearing that in the van 82.85 grams of
     methamphetamine was found. A search of Appellant’s vehicle, a
     Cadillac, in relevant part revealed a fully loaded .38 caliber
     Smith     and   Wesson     handgun.        Percocet   pills  and
     methamphetamine were also found in the Cadillac.

            Additionally, the criminal complaint and the accompanying
     affidavit of probable cause, which was sworn to and verified on
     July 27, 2012, lists in pertinent part that a search of Appellant’s
     vehicle uncovered a Smith and Wesson .38 handgun,
     approximately 102.99 grams of Percocet and methamphetamine.
     It further delineated the items recovered from a search of the
     Chevrolet van, which included in relevant part, 82.85 grams of
     methamphetamine.

           On July 18, 2013, a suppression hearing was held. ...
     [T]he Commonwealth made a motion to amend the bills of
     information in light of [the] pronouncement of the United States
     Supreme Court in Alleyne v. United States, –––U.S. –––, 133
     S.Ct. 2151, 186 L.Ed.2d 314 (2013). The Commonwealth noted
     that there were several mandatories involved in this case,
     namely the 82.25 grams of methamphetamine, the 102.2 grams




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       of Percocet and the firearm mandatory.[2] The Commonwealth
       wanted to amend the bills of information to reflect the weight of
       the drugs and the presence of the firearm. Defense counsel
       objected to the Commonwealth’s request, arguing that allowing
       the Commonwealth to amend was adding new and additional
       charges. [The trial court] took the issue under advisement [and
       subsequently permitted the Commonwealth to amend the
       criminal information].

Trial Court Opinion, 1/28/14 at 2-4 (citations to the record omitted).3

       A jury trial commenced on July 22, 2013, and the jury convicted

Appellant of the aforementioned charges.         Following a hearing on October

____________________________________________


2
   See 18 Pa.C.S.A. § 7508 (Drug trafficking sentencing and penalties) and
42 Pa.C.S.A. § 9712.1 (Sentences for certain drug offenses committed with
firearms).
3
  With regard to the weight of the drugs, the record is unclear as to the
precise weight of the Percocet and methamphetamine. Our review of the
record reflects that the Commonwealth amended the criminal information as
follows:

    Count 9 (PWID):         82.25 grams of methamphetamine/to include firearm
                            mandatory
    Count 10 (PWID):        102.99 grams of oxycodone/to include firearm
                            mandatory
    Count   11(PWID):       to include firearm mandatory
    Count   12(PWID):       28 grams of methamphetamine
    Count   13 (PWID):      28 grams of methamphetamine
    Count   14 (PWID):      28 grams of methamphetamine
    Count   15 (PWID):      28 grams of methamphetamine

Amended Criminal Information, 7/16/13.

In light of our determination in this case that imposition of mandatory
minimum sentences based on the weight of the drugs was constitutionally
impermissible, the precise weight of the drugs is not dispositive.




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11, 2013, the trial court sentenced Appellant to a term of imprisonment of

17 to 50 years.    This appeal followed.    Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:


      1.    Whether the trial court’s grant of the Commonwealth’s oral
            motion to amend the Criminal Information created new
            charges not passed in accordance with the Pennsylvania
            Crimes Code and the Pennsylvania Constitution rendering
            the jury’s verdicts of guilty on Counts 9, 10 and 11 a legal
            nullity?

      2.    Did the record below support the Suppression Court’s
            ruling denying [Appellant’s] Motion to Suppress and are
            the [trial] court’s findings of fact and conclusions of law
            amenable to appellate review?

Appellant’s Brief at 3.

      In his first issue, Appellant argues that the trial court erred in granting

the Commonwealth’s oral motion to amend the criminal information to allow

the jury to determine the weight of the drugs, and to determine whether the

drugs were found in close proximity to the firearm, for purposes of imposing

mandatory minimum sentences pursuant to 18 Pa.C.S.A. § 7508 and 42

Pa.C.S.A. § 9712.1. Appellant’s Brief at 6-17. Specifically, Appellant claims

that the recent United States Supreme Court decision in Alleyne v. United

States, 133 S.Ct. 2151, 2155 (2013), rendered § 7508 and § 9712.1

unconstitutional, and the trial court acted impermissibly in allowing the

Commonwealth to amend the criminal information to include for jury

consideration the weights of the drugs seized from Appellant and the


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proximity of the firearm to Appellant’s drugs in order to subject him to the

mandatory minimum sentencing provisions.            Accordingly, Appellant argues

that his mandatory minimum sentences should be vacated.

       In Alleyne, the United States Supreme Court held that any facts

leading to an increase in a mandatory minimum sentence are elements of

the crime and must be presented to a jury and proven beyond a reasonable

doubt. Courts of this Commonwealth have held that “[t]he Alleyne decision

... renders those Pennsylvania mandatory minimum sentencing statutes that

do not pertain to prior convictions constitutionally infirm insofar as they

permit a judge to automatically increase a defendant's sentence based on a

preponderance of the evidence standard.” Commonwealth v. Watley, 81

A.3d 108, 117 (Pa. Super. 2013) (en banc).

       Following Alleyne, this Court in Commonwealth v. Newman, 99

A.3d 86 (Pa. Super. 2014) (en banc) reviewed the constitutionality of 42

Pa.C.S.A. § 9712.1, which enhances the minimum sentence where a firearm

is found in the vicinity of the contraband.4        We held in Newman that the

unconstitutional provisions of § 9712.1 which permit a trial judge to impose

the mandatory minimum sentence based on a preponderance of the

evidence     are   unconstitutional      pursuant   to   Alleyne,   and   that   the
____________________________________________


4
  We note that the Commonwealth has filed a petition for allowance of
appeal with the Pennsylvania Supreme Court in Newman, docketed at 646
MAL 2014. As of the date of this decision, the petition for allowance of
appeal remains pending.



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unconstitutional provisions were “essentially and inseparably connected” to

the valid provisions of the statute, and therefore not severable. Newman,

99 A.3d at 101.    Accordingly, we concluded that Alleyne rendered 42

Pa.C.S.A. § 9712.1 unconstitutional in its entirety, and we vacated the

judgment of sentence and remanded for the re-imposition of sentence

without consideration of any mandatory minimum sentence provided by

Section 9712.1.

     Here, in accordance with our decision in Newman, which holds that

section 9712.1 in its entirety is unconstitutional, we are constrained to

vacate the judgment of sentence and remand for the re-imposition of

sentence without consideration of any mandatory minimum sentence

provided by Section 9712.1.

     In addition, Appellant challenges the mandatory minimum sentences

imposed pursuant to 18 Pa.C.S.A § 7508 after the jury determined that

Appellant possessed methamphetamine of a weight of between 10 to 100

grams and possessed Percocet of a weight of 100 grams or more.

     In Commonwealth v. Fennell, --- A.3d ---, 2014 WL 6505791

(Pa. Super. November 21, 2014) and Commonwealth v. Cardwell --- A.3d

---, 2014 WL 6656644 (Pa. Super. November 25, 2014), this Court recently

declared § 7508 unconstitutional in its entirety pursuant to Alleyne.

Specifically, we held in Fennell and Cardwell that § 7508(b) — which

permits the trial court to determine the weight or amount of the drugs in


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question by a “preponderance of the evidence” — is unconstitutional in light

of Alleyne.    Moreover, we reasoned in Fennell and Cardwell that the

unconstitutional “preponderance of the evidence” provision of § 7508(b) is

not severable from the rest of the statute, and therefore § 7508 as a whole

is unconstitutional.   Accordingly, pursuant to Fennell and Cardwell, we

vacate Appellant’s judgment of sentence and remand for the re-imposition of

sentence without consideration of any mandatory minimum sentencing

provided by 42 Pa.C.S.A. 7508.

      The Commonwealth argues that by amending the criminal information

to permit the jury to determine beyond a reasonable doubt the proximity of

drugs to the gun as well as the weight of the drugs, the trial court effectively

complied with the requirements of Alleyne by submitting the factual

questions for a jury to determine beyond a reasonable doubt.                The

Commonwealth thus argues that the trial court’s imposition of mandatory

minimum sentences pursuant to 18 Pa.C.S.A. § 9712 and 42 Pa.C.S.A. §

7508 should be upheld.

      In Commonwealth v. Valentine, --- A.3d ---, 2014 WL 4942256 (Pa.

Super. Oct 03, 2014) we held that the trial court was not permitted to

empower the jury to resolve the factual bases for imposition of a mandatory

minimum sentence.      We reasoned that “[b]y asking the jury to determine

whether the factual prerequisites [of the mandatory minimum statue at

issue] had been met, the trial court effectively determined that the


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unconstitutional provisions of [the statute, employing a preponderance of

the evidence standard] were severable.”          Valentine at 8.      We concluded

however    that   the    unconstitutional     “preponderance    of    the   evidence”

provisions were not severable, and moreover, that by permitting the

Commonwealth to amend the criminal information and submitting the factual

questions for jury consideration, “the trial court performed an impermissible

legislative function by creating a new procedure in an effort to impose the

mandatory minimum sentences in compliance with Alleyne.”                    Id. citing

Newman, 99 A.3d at 102 (holding that to allow a jury to determine beyond

a reasonable doubt whether the conditions exist for imposition of a

mandatory minimum sentence would effectively put the courts in a position

of “manufactur[ing]” a replacement procedure in an effort to comply with

Alleyne,   and    that   such   action   by    the   courts   would   constitute   an

impermissible legislative function).

      Therefore, consonant with Newman and Valentine, we conclude that

by amending the criminal information and allowing the jury to determine

beyond a reasonable doubt the proximity of the gun to the drugs for

purposes of 42 Pa.C.S.A. 9712.1, and the weight of the drugs for purposes

of 18 Pa.C.S.A 7508, the trial court created a new procedure contrary to the

existing statute, which constituted an impermissible legislative function in an

effort to impose the mandatory minimum sentences in compliance with

Alleyne. As we explained in Valentine, “Newman makes clear that ‘it is


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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.’”              Id. quoting Newman, 99

A.3d at 102. Here, the trial court did not have the authority to allow the

jury to determine the factual predicates of the mandatory minimum

sentencing     statutes,   and    its   efforts   to   impose     mandatory   minimum

sentences pursuant to 18 Pa.C.S.A § 9712.1 and 42 Pa.C.S.A § 7508 were in

error.

         In his second issue, Appellant argues that the trial court erred in

denying his suppression motion. Appellant’s Brief at 18-40. Our scope and

standard of review is well-settled:

                An appellate court's standard of review in addressing a
         challenge to a trial court's denial of a suppression motion is
         limited to determining whether the factual findings are supported
         by the record and whether the legal conclusions drawn from
         those facts are correct. [Because] the prosecution prevailed in
         the suppression court, we may consider only the evidence of the
         prosecution 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 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. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations

omitted).

         Appellant argues that the trial court erred in denying his motion to

suppress     wiretap   evidence     obtained      through   the    interception   of   his

telephone calls. Specifically, Appellant argues that in its affidavit of probable


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cause in support of the wiretap order, the Commonwealth failed to include

“[a] particular statement of facts showing that other normal investigative

procedures with respect to the offense have been tried and have failed, or

reasonably appear to be unlikely to succeed if tried or are too dangerous to

employ” pursuant to 18 Pa.C.S.A. § 5709(3)(vii). Appellant’s Brief at 18.

     Authorizations for interception of telephone communications are
     subject to the provisions of the Wiretapping and Electronic
     Surveillance Control Act, 18 Pa.C.S.A. §§ 5701–5782.           An
     application for an order of authorization to intercept an
     electronic or wire communication must contain a sworn
     statement by the investigative or law enforcement officer who
     has knowledge of relevant information justifying the application,
     which statement must include “a particular statement of facts
     showing that other normal investigative procedures with respect
     to the offense have been tried and have failed, or reasonably
     appear to be unlikely to succeed if tried or are too dangerous to
     employ.” Id. at § 5709(3)(vii). In addition, before a judge may
     issue an order authorizing an interception, the judge is required
     to determine on the basis of the facts submitted in the
     application that there is probable cause for belief that “normal
     investigative procedures with respect to such offense have been
     tried and have failed, or reasonably appear to be unlikely to
     succeed if tried or to be too dangerous to employ.” Id. at §
     5710(a)(3).

Commonwealth          v.    Rodgers,        897      A.2d     1253,      1259

(Pa. Super. 2006).

     Our courts have explained that suppression is not an appropriate

remedy for the Commonwealth’s failure to include a sworn statement that

other normal investigative procedures have failed, appear unlikely to

succeed, or are too dangerous — in          violation of section 5709(3)(vii).

Commonwealth v. Steward, 918 A.2d 758, 760 (Pa. Super. 2007)



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(explaining that the Wiretap Act allows an aggrieved party to move for

suppression on six enumerated grounds which do not encompass a violation

of 5709(3)(vii)).   Accordingly, to the extent Appellant seeks suppression

based on the Commonwealth’s failure to include a sworn statement pursuant

to section 5709(3)(vii), suppression is not available as a remedy under the

Wiretap Act. Id.

      Moreover, to the extent Appellant argues that the evidence presented

to the Superior Court judge ruling on the wiretap was insufficient to establish

probable cause to believe that normal investigatory methods had been

adequately employed or would have been futile, this claim also fails. See 18

Pa.C.S.A. § 5710(a)(3). This Court has addressed the “normal investigative

procedures” requirement as follows:


            This is an objective standard; reliance cannot be placed
      solely upon a subjective belief by the Attorney General or District
      Attorney that normal investigative procedures will not likely
      succeed.    In this aspect, it will be observed, the standard
      imposed by the Pennsylvania legislature is more stringent than
      the requirement imposed by Title III.          It is designed to
      guarantee that wiretapping will not be resorted to in situations
      where traditional investigative techniques are adequate to
      expose crime. The requirement also suggests that a wiretap
      should not be employed as the initial step in a police
      investigation. However, the Commonwealth is not required to
      show that all other investigative methods have been exhausted.
      In making this determination, moreover, the issuing authority
      may consider and rely upon the opinions of police experts. In
      reviewing the adequacy of the application to support the
      issuance of an order of authorization, we will interpret the
      application in a common sense manner, not overly technical,
      with due deference to the findings of the issuing authority.



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Rodgers, 897 A.2d at 1259 quoting Commonwealth v. Doty, 498 A.2d

870, 880–81 (Pa. Super. 1985)

      Our review of the record indicates that the evidence presented to the

Superior Court judge ruling on the wiretap request was sufficient to establish

that other investigatory methods had been adequately employed and failed

or would have been futile or too dangerous. The extensive affidavit filed in

support of the wiretap application supports this determination. The 65-page

affidavit by Detective James Vinter included attestations that (1) the

confidential informants who had been involved in the investigation were

unable to provide any further information as to Appellant’s supply sources

and manner of acquisition and distribution of contraband, as they did not

have sufficient access to Appellant in order to obtain such information; (2)

attempts to utilize a new informant had failed, and the possibility of

procuring any more confidential informants whom Appellant would consider

trustworthy were remote; (3) efforts by undercover police to infiltrate

Appellant’s tightly knit network had failed and any further such efforts would

only arouse suspicion; and (4) continuous physical or visual surveillance of

Appellant’s residence was difficult as parking within sight of Appellant’s

residence was prohibited and any effort to do so would arouse suspicion, and

while the police department had placed surveillance cameras on Appellant’s

residence, the cameras offered only restricted views of the residence and the

footage was limited in its usefulness. Affidavit of Probable Cause, 6/18/12.


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Upon review, and interpreting the wiretap application and affidavit in a

common sense manner with due deference to the issuing authority, we find

no error in the trial court’s denial of Appellant’s motion to suppress the

wiretap. Rodgers, supra.

         However, pursuant to Alleyne and the decisions of this Court in

Newman and Valentine, we vacate the judgment of sentence and remand

for resentencing without consideration of 42 Pa.C.S.A. § 9712.1 and 18

Pa.C.S.A. § 7508.

         Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.

         Judge Strassburger joins the memorandum.

         Judge Olson files a concurring statement in which Judge Strassburger

joins.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2014




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