J-S11030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                              Appellant

                         v.

FABIAN F. THOMAS

                              Appellee                          No. 1333 MDA 2014


                  Appeal from the Order Entered July 11, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002938-2013


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

MEMORANDUM BY OTT, J.:                                   FILED FEBRUARY 18, 2015

       The Commonwealth appeals from the order entered on July 11, 2014,

in   the   Court    of    Common         Pleas   of   Luzerne    County,   denying   the

Commonwealth’s motion for leave to amend the bill of information filed

against Fabian F. Thomas. The Commonwealth sought to amend the bill to

include the claim Thomas had sold drugs within 1000 feet of the real

property of a school.         The trial court denied the motion on constitutional

grounds pursuant to Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (en banc) and Alleyne v. United States, ___ U.S. ___, 133 S.Ct.

2151 (2013).       After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.1
____________________________________________


1
  The Commonwealth has asked that we refrain from deciding this matter
until our Supreme Court decides Commonwealth v. Newman, supra. Our
(Footnote Continued Next Page)
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      By way of background, Thomas was arrested and charged with a

variety of drug and drug related offenses. The Commonwealth believes that

Thomas sold or delivered cocaine within 1000 feet of the real property of a

school.    Until recently, this fact was relevant to the application of a

mandatory minimum sentence of two years, pursuant to 18 Pa.C.S. § 6317.

Section 6317 provides that with proper notice after trial, the trial court will

determine by a preponderance of evidence, based upon facts produced at

trial and any additional evidence presented by the Commonwealth and/or

defendant at sentencing, whether the drug transaction occurred within 1000

feet of school property.

      However, in Alleyne v. United States, supra, the United States

Supreme Court held “when a mandatory minimum sentence is under

consideration based upon judicial factfinding of a ‘sentencing factor,’ that

‘sentencing factor’ is, in reality, ‘an element of a distinct and aggravated

crime’ and, thus, requires it be proven beyond a reasonable doubt.” Id. at




                       _______________________
(Footnote Continued)

research informs us that Newman has been held by our Supreme Court for
the decision in Commonwealth v. Hopkins, 98 MAP 2013. Hopkins was
argued before the Supreme Court in September, 2014. There are a large
number of cases being held by our Supreme Court pending the Hopkins
decision. Because we so not know when the Hopkins decision will be
issued, we believe it is the better course to decide this matter, thereby
allowing the Commonwealth to file a petition for allowance of appeal in order
to add this matter to the roster of pending cases.



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2163.    This holding essentially invalidated all such sentencing provisions,

including Section 6317.2

        Here, the Commonwealth, relying on Watley, attempted to avoid the

sentencing issues by amending the bill of information to include the distance
                          3
factor in the charge.         However, the trial court properly relied upon the

reasoning in Newman, determined the offending elements were not

severable, and therefore denied the Commonwealth’s motion to amend.4




____________________________________________


2
   Newman addressed the sentencing provisions at 42 Pa.C.S. 9712.1
regarding firearms and drugs. Relevant to this matter, Newman also found
the infirm elements of Section 9712.1 non-severable. Section 6317 was
formally declared unconstitutional in Commonwealth v. Watley, 81 A.3d
108 (Pa. Super. 2013) (en banc). Watley also treated the infirm provisions
as, but did not hold that they were, severable.        Commonwealth v.
Valentine, 101 A.3d 801 (Pa. Super. 2014) recognized the
unconstitutionality of Section 6317 and most recently, Commonwealth v.
Bizzel, ___ A.3d. ___, 2014 PA Super 267 (12/2/2014), applied Newman
and determined the infirm elements of Section 6317 were not severable. In
a concurring opinion in Bizzel, Judge Bowes reiterated her consistent
position that the burden of proof aspects of Section 6317, and similar
statutes, are severable.
3
  The Commonwealth’s request to amend the bill of information occurred
prior to the Bizzel decision.
4
  In addition to challenging the constitutionality of Section 6317, Fabian also
argued the Commonwealth’s attempt to amend the bill of information
conflicted with Pa.R.Crim.P. 564. The trial court did not rule on this aspect
of the claim. Similarly, we decline to address this argument pending the
outcome of Hopkins/Newman.



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      Accordingly, while the issue will ultimately be decided by our Supreme

Court in Hopkins/Newman, under the current state of the law, we are

required to affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




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