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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

EBIASTO ECHAVARIA

                            Appellant                   No. 1984 EDA 2014


               Appeal from the Judgment of Sentence July 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008736-2012


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 21, 2015

        Ebiasto Echavaria appeals from the judgment of sentence of five to ten

years’ incarceration and five years’ probation imposed on July 7, 2014, in

the Court of Common Pleas of Philadelphia County. A jury found Echavaria

guilty of possession with intent to deliver controlled substances (PWID) and

conspiracy to commit PWID.1           On appeal, Echavaria contends (1) the trial

court erred in not permitting him to introduce evidence of his co-defendant’s

three prior convictions for drug dealing, (2) 18 Pa.C.S. § 7508, which

establishes mandatory minimums for various drug trafficking offenses, is

unconstitutional under Alleyne v. United States, 133 S. Ct. 2151 (2013),

and (3) 18 Pa.C.S. § 7508 is wholly void and unenforceable under

____________________________________________


1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903, respectively.
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Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).

See Echavaria’s Brief at 2.    Based on the submissions by the parties,

certified record, and relevant law, we find no merit in Echavaria’s first

contention, but based on the second and third issues raised in this appeal,

we vacate the judgment of sentence and remand for resentencing.

     The trial court summarized the relevant facts of the case as follows:

     On February 28, 2012, at approximately 7:15 p.m., Philadelphia
     Police Officer Richard Fitzgerald went to 241 W. Thayer Street to
     purchase narcotics. This was based on a tip from an unidentified
     source stating that the residents of this address sold pills,
     referred to as “blues.” Upon knocking on the front door, Officer
     Fitzgerald was let into the residence by Angel Concepcion.
     Further inside the home the officer saw another individual who
     he identified as Mr. Garcia (a.k.a. Ebiasto Echavaria). Officer
     Fitzgerald told Concepcion he wanted blues and paid him with a
     pre-recorded $20 bill. Concepcion then handed Officer Fitzgerald
     eight blue pills that he retrieved from a white pill bottle on the
     dining room table. Following this exchange, officers applied for a
     search warrant for the residence.

     On March 1, 2012, at approximately 4:40 p.m., Officer Fitzgerald
     returned to 241 W. Thayer Street. [Echavaria] answered the
     door and let him into the residence. Officer Fitzgerald again
     requested blues, which [Echavaria] produced from his person.
     Officer Fitzgerald exchanged another pre-recorded $20 bill for six
     pills. Upon completing the transaction, other officers from the
     narcotics field unit entered the home to execute the search
     warrant.

     Officer Bryan Sumter led a team of six officers in their search of
     the residence. Officers recovered from the dining area of the
     home: marijuana, 38 oxycontin pills, 146 percocet pills, 52
     xanax pills, a letter addressed to Mr. Concepcion, and a large
     quantity of unused plastic baggies. Officers recovered $408
     from the second floor bedroom. At that time, Officer Richard
     Nicoletti found Concepcion in the basement, which appeared to
     be in use as a bedroom.



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       The pills and marijuana found at 241 W. Thayer Street were sent
       to the Philadelphia Police Department Chemistry Lab for
       identification. Neetu Jose, a forensic scientist, identified tablets
       as alprazolam, commonly known as Xanax. Mariamma Shegu,
       another forensic scientist, determined that the marijuana
       weighed less than 30 grams total. She also identified pills found
       at the residence as oxycodone and acetaminophen, commonly
       known as Percocet.

       At trial, Officer Kevin Keys was introduced as a narcotics expert.
       He testified that, based on the totality of the evidence
       discovered at 241 W. Thayer Street, the narcotics were
       possessed with the intent to distribute. This opinion was based
       on the way the drugs were packaged, how they had been sold to
       Officer Fitzgerald, and the money found at the scene.

Trial Court Opinion, 12/12/2014, at 2-3 (record citations omitted).

       On December 10, 2013, Echavaria proceeded to a jury trial with his

co-defendant, Angel Concepcion, and was convicted as stated above.2 See

N.T. 12/13/2013, at 125-126.            Following sentencing, Echavaria filed this

appeal.3

       Echavaria first challenges the trial court’s denial of his motion in limine

to permit evidence of Concepcion’s prior criminal record.         Our standard of

review of the court’s evidentiary ruling is as follows:

       The admissibility of evidence is within the sound discretion of the
       trial court, wherein lies the duty to balance the evidentiary value
       of each piece of evidence against the dangers of unfair prejudice,
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2
 Concepcion was found guilty of PWID and conspiracy to commit PWID, and
was sentenced to five to ten years’ incarceration for both offenses. See
Commonwealth’s Brief at 4 and n.1.
3
  Echavaria timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) statement.



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      inflaming the passions of the jury, or confusing the jury. We will
      not reverse a trial court’s decision concerning admissibility of
      evidence absent an abuse of the trial court’s discretion.

Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa. Super. 2011) (citation

omitted). Furthermore, we are guided by the following legal principles and

Rules of Evidence.

      Generally, “[e]vidence of a defendant’s prior criminal activity is

inadmissible to demonstrate his bad character or criminal propensity.”

Commonwealth v. Cox, 115 A.3d 333, 337 (Pa. Super. 2015) (citation

omitted). However, “‘[p]rior bad acts’ evidence may be admissible where it

is relevant for some other legitimate purpose and not utilized solely to

blacken the defendant’s character.” Commonwealth v. Russell, 938 A.2d

1082, 1092 (Pa. Super. 2007), appeal denied, 956 A.2d 434 (Pa. 2008).

      Pennsylvania Rule of Evidence 402 provides that generally, “[a]ll

relevant evidence is admissible” and [e]vidence that is not relevant is not

admissible.” Pa.R.E. 402. ‘Relevant evidence’ means evidence having “any

tendency to make a fact more or less probable than it would be without the

evidence,” and “the fact is of consequence in determining the action.”

Pa.R.E. 401.   However, pursuant to Rule 403, “[t]he court may exclude

relevant evidence if its probative value is outweighed by a danger of … unfair

prejudice[.]” Pa.R.E. 403. Rule 404 states, in pertinent part:

      (b) Crimes, Wrongs or Other Acts.

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person’s character in order to show



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      that on a particular occasion the person acted in accordance with
      the character.

      (2) Permitted Uses.       This evidence may be admissible for
      another purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake, or
      lack of accident. In a criminal case this evidence is admissible
      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

      Echavaria argues “the court erred in not permitting defense counsel to

introduce evidence of [Concepcion’s] three prior convictions for drug dealing,

in an attempt to demonstrate to the jury that the drugs found in the house

were actually possessed with the intent to deliver by [Concepcion], and not

[Echavaria].” Echavaria’s Brief at 11. Echavaria claims that the introduction

of Concepcion’s criminal record was admissible to his defense to show that it

was Concepcion who “possessed all the drugs recovered from 241 West

Thayer Street.” Id. at 12. Specifically, he argues:

      Even though [Echavaria] made a sale of Xanax pills to a police
      officer, he got them from his pocket and not from a white pill
      bottle on the kitchen table. The trier of fact may very well have
      believed that [Echavaria] is a casual user who sold his own drugs
      from his person (rather than being in a conspiracy with
      Concepcion) and evidence of Concepcion’s prior convictions
      would have supported [Echavaria’s] argument to the jury as to
      that defense theory.

Id. at 12.

      In support of his contention that the trial court should have allowed

evidence of his co-defendant’s prior criminal history, Echavaria relies on

Commonwealth v. Thompson, 779 A.2d 1195 (Pa. Super. 2001), appeal


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denied, 790 A.2d 1016 (Pa. 2001). In Thompson, this Court found

reversible error where the defendant-passenger, Thompson, was precluded

from presenting evidence that the driver of the vehicle, Jamal Bennett, had a

prior criminal record for cocaine trafficking.4 The Thompson Court analyzed

the proffered evidence under Pennsylvania Rules of Evidence 402, 403, and

404(b).    Id. at 1202.      The Thompson Court explained the evidence was

relevant “to demonstrate that [Bennett] constructively possessed the

cocaine, not [Thompson].”         Id. at 1202. This Court further reasoned that

“the evidence [was] offered by a defendant to show that a third party, not

charged with the crime in question actually committed the act.”          Id. at

1203.     The Thompson Court opined: “[T]he concerns about a jury

convicting Bennett for possession of cocaine with intent to deliver simply

because he has been involved in cocaine trafficking in the past are not
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4
  In Thompson, as a result of a vehicle stop, police found cocaine and
marijuana in the backseat of a vehicle where Thompson was seated as a
passenger. The vehicle was owned and driven by Bennett. Thompson was
arrested and charged with PWID, possession of cocaine, possession of drug
paraphernalia for cocaine, possession of marijuana, and possession of drug
paraphernalia for marijuana. Bennett was not charged with any drug
offenses. Thompson was tried and convicted on all charges. Although
Thompson conceded that the marijuana was his, he denied that the cocaine
belonged to him. At trial, Thompson sought to introduce evidence of
Bennett’s prior criminal history relating to cocaine. Thompson argued that
“his mere presence wasn’t enough to establish constructive possession of
the cocaine since the area where the cocaine was found was not in his
exclusive control.” Id. at 1199. On appeal, this Court reversed Thompson’s
judgment of sentence and remanded for a new trial, determining the trial
court erred when it denied Thompson’s request to introduce evidence of
Bennett’s prior criminal history of drug trafficking. Id. at 1203.



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present since he was not charged with any drug-related crime arising out of

the traffic stop of his vehicle, and he did not testify at trial.”   Thompson,

supra, at 1202 (emphasis in original).

      Here, in contrast, Echavaria and Concepcion are co-defendants. The

trial court, in rejecting Echavaria’s argument based upon Thompson, aptly

pointed out:

      In the instant case, Angel Concepcion was a co-defendant
      charged with the same criminal activity as [Echavaria]. Unlike in
      Thompson, where there was no risk of prejudice to a
      defendant, the introduction of Concepcion’s record would have
      certainly prejudiced the co-defendant. [Echavaria’s] motion for
      the admission of prior criminal records invokes not only his right
      to present a defense, but Concepcion’s right to be free from
      undue prejudice at trial.    The Thompson court noted that
      Pa.R.E. 40[4](b) is “concerned only with prejudice to the
      defendant,” meaning the danger of prejudice must be carefully
      weighed by trial courts when determining whether evidence is
      admissible.

                                     ****

      [Echavaria] sought to introduce evidence of prior crimes
      specifically “in an attempt to demonstrate to the jury that the
      drugs found in the house were actually possessed with the intent
      to deliver by the co-defendant, and not the defendant.”
      [Echavaria’s] Pa.R.A.P. 1925(b) Statement, 08/01/2014, at 1.
      ¶2. [Echavaria] seeks to introduce this evidence specifically for
      the purpose of showing that his co-defendant behaved in
      conformity with his prior crimes, which is precisely what the rule
      seeks to prevent.       Furthermore, evidence of Concepcion’s
      criminal record does not necessarily shed any light on the
      behavior of [Echavaria], and therefore such evidence has only
      slight probative value when compared to the danger of unfair
      prejudice against Concepcion.

Trial Court Opinion, 12/12/2014, at 6-7 (citations omitted).



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      We agree with the trial court’s sound reasoning.        In this regard,

Echavaria’s reliance on Thompson is misplaced, since Thompson did not

involve the prior bad acts evidence of a co-defendant.       Accordingly, we

conclude the trial court did not abuse its discretion in excluding evidence of

Concepcion’s prior criminal record.

      In his remaining arguments, Echavaria argues that his sentence

imposed in accordance with mandatory minimum set out in 18 Pa.C.S. §

7508, is unconstitutional and illegal under Alleyne v. United States, 133

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

Super. 2014) (en banc).

      In Alleyne v. United States, 133 U.S. 2151 (2013), the United

States Supreme Court held “[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.” Id. at 2155. Applying this mandate, our Courts have

held that Alleyne renders unconstitutional mandatory minimum sentencing

statutes that permit the trial court to increase a defendant’s minimum

sentence based upon a preponderance of the evidence standard.            See

Commonwealth v. Hopkins, ___ A.3d ___ [2015 WL 3949099] (Pa.

2015); Newman, supra.

      Recently, in Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super.

2014) (en banc), this Court held that 18 Pa.C.S. § 7508 was rendered

unconstitutional under Alleyne and its provisions are non-severable.


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Vargas, supra, at 876-877 (citing Newman, supra, and Commonwealth

v. Fennell, 105 A.3d 13 (Pa. Super. 2014)).     The Honorable Charles A.

Ehrlich has astutely opined that “the mandatory minimum sentence imposed

should be vacated and remanded for resentencing consistent with the rulings

in Alleyne and Newman.”       Trial Court Opinion, 12/12/2013 at 8.    We

agree. Therefore, we conclude there is no merit to Echavaria’s challenge to

the denial of his motion in limine, but vacate and remand for resentencing

without imposition of the mandatory minimum sentence under 18 Pa.C.S. §

7508.

        Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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