J-S10044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
COREY ALLEN WALTON,                       :
                                          :
                  Appellant               :          No. 1033 MDA 2013

      Appeal from the Judgment of Sentence entered on April 29, 2013
               in the Court of Common Pleas of Berks County,
               Criminal Division, No. CP-06-CR-0000367-2013

BEFORE: GANTMAN, P.J., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 27, 2014



imposed following his convictions of possession of a controlled substance,

possession with intent to deliver a controlled substance, and possession of

drug paraphernalia. See 35 P.S. §§ 780-113(a)(16), (30), (32). We vacate

the sentence and remand for re-sentencing.

      The trial court set forth the relevant factual history in its Opinion as

follows:

      On December 20, 2012, Berks County probation officers
      conducted a residential search pursuant to a field contact at

      During their search, the officers found 31 individual baggies
      containing vegetable matter later confirmed to be marijuana, as
      well as other drug packaging materials and paraphernalia
      including a digital scale and a glass pipe. The total amount of
      marijuana found was determined to be 18.2 grams. Officers also
      found 15 rounds of ammunition, a small knife, and a bottle of
      prescription pills with a missing label.
J-S10044-14




      residence.   After probation officer


      have two girls pregnant, Christmas is five days away and I have




      [Walton was charged with various crimes and the matter
      proceeded to a jury trial.]   At the conclusion of the

      for [the trial c]ourt to give certain jury instructions which he had
      previously filed with the clerk of courts         one regarding the
      possession and possession with intent charges, and one with
      regard to the corpus delicti rule.          After entertaining brief



      to [the trial c
      and [the trial court] noted his objection for the record.

      The jury rendered a guilty verdict as to all counts. [The trial
      court] sentenced [Walton,] the same day, to the statutory
      maximum sentence of 2½
      [possession with intent to deliver] charge, and one year [of]
      probation on the drug paraphernalia charge.[1]

Trial Court Opinion, 10/1/13, at 2 (citations omitted, footnote added).

      Walton filed a timely Post-Sentence Motion, which the trial court

denied.   Walton filed a timely Notice of Appeal.      The trial court ordered

Walton to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise




1
 The trial court did not impose a sentence for the possession of a controlled
substance conviction.


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statement.     Walton filed a timely Concise Statement and the trial court

issued an Opinion.2

      On appeal, Walton raises the following questions for our review:

      A. Whether the Commonwealth was precluded from charging

           guilty of 35 [P.S.] § 780-113(a)(30) when the language of 35
           [P.S.] § 780-113(a)(31) supersedes and specifically
           proscribes the conduct in question[?]

      B.
           possession with intent to distribute but not sell instruction in
           accordance with 35 [P.S.] § 780-113(a)(31), which
           constitutes reversible error because the jury did not have an
           opportunity to consider whether [Walton] possessed the
           marijuana with the intent to distribute it but not sell it and a
           new trial is warranted[?]

      C. Whether the trial court erred in denying
         corpus delicti jury instruction request[,] which constituted
         reversible error because the jury did not have the opportunity
         to consider whether the Commonwealth had proved the
         corpus beyond a reasonable doubt and [a] new trial is
         warranted[?]

      D. Whether the trial court imposed an illegal sentence in

           the mandatory minimum provisions of 18 Pa.C.S.A. § 6317,
           where such determination was not determined or found to be
           present by a jury beyond a reasonable doubt[?]

Brief for Appellant at 5-6 (issues renumbered for ease of disposition).

      In his first claim, Walton contends that the Commonwealth was

precluded from charging him with possession with intent to deliver a

controlled substance because of the superseding language found in 35 P.S.

2



Reconsideration, our Court granted panel reconsideration on July 23, 2014.


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§ 780-113(a)(31),3 possession of a small amount of marijuana.                  Brief for

Appellant at 26-28; see also id. at 23.

        Here, Walton did not raise this argument before the trial court or in his

Rule 1925(b) Concise Statement. Thus, Walton has waived this argument

on appeal. See Pa.R.A.P. 1925(b)(4)(vii); Pa.R.A.P. 302(a).

        In his second claim, Walton contends that the trial court erred in

denying his proposed jury instruction with regard to the possession with

intent to deliver charge. Brief for Appellant at 20-23. Walton argues that

the trial court improperly failed to instruct the jury on the lesser-included

offense of possession of a small amount of marijuana under 35 P.S. § 780-

113(a)(31). Brief for Appellant at 21-22. Walton asserts that the jury could

have found him not guilty of possession with intent to deliver marijuana and

guilty of possession of a small amount of marijuana with the intent to

distribute but not sell it. Id. at 22, 23. Walton points out that, consistent

with section 780-113(a)(31), he possessed 18.2 grams of marijuana and the


3
    35 P.S. § 780-113(a)(31) prohibits the following:

        (31) Notwithstanding other subsections of this section, (i) the
        possession of a small amount of marihuana only for personal
        use; (ii) the possession of a small amount of marihuana with the
        intent to distribute it but not to sell it; or (iii) the distribution of a
        small amount of marihuana but not for sale.

        For purposes of this subsection, thirty (30) grams of marihuana
        or eight (8) grams of hashish shall be considered a small amount
        of marihuana.

35 P.S. § 780-113(a)(31).


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drugs were packaged

Id. at 22.    Walton claims that the Commonwealth did not present any

evidence demonstrating that he intended to deliver the marijuana. Id.

      Our standard of review when considering the propriety of a jury

instruction is as follows:

      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. A jury charge
      will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error.     Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties
      and its refusal to give a requested charge does not require
      reversal unless the appellant was prejudiced by that refusal.

Commonwealth v. Baker, 963 A.2d 495, 507 (Pa. Super. 2008) (citation

omitted).

      The trial court is required to instruct the jury as to the applicable law

of the case. Commonwealth v. Daniels, 963 A.2d 409, 430 (Pa. 2009).

                                         -]included offense if there is some

disputed evidence concerning an element of the greater charge or if the

undispute

Commonwealth v. Hawkins, 614 A.2d 1198, 1201 (Pa. Super. 1992)



the jury on the lesser-included offense unless the evidence could support a


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conviction on the lesser offense. There is no duty on a trial judge to charge

                                                            Commonwealth v.

Wilds, 362 A.2d 273, 278 (Pa. Super. 1976) (quotation marks omitted).

     The evidence of record established that Berks County probation



20, 2012.    N.T., 4/29/13, at 21-22, 30.        As a result of the search, the

officers discovered a digital scale, which is oftentimes used to weigh

marijuana, and a bag containing 31 smaller baggies of marijuana.         Id. at

25-27, 29, 33-34, 40, 42, 49.     The officers also found a marijuana pipe,

other unused packaging material and a bottle of prescription pills that had

no label. Id. at 23-24, 26, 34-35, 40-41, 43. After the officers found the

marijuana, Walton repeatedly stated, without prompting from the officers:



two girls pregnant, Christmas is five days away, and I have to pay my bills

            Id. at 28; see also id. at 37, 44.



narcotics packaging, testified that Walton possessed the marijuana with the

intent to deliver based upon the packaging, the new and unused packaging

                                                    Id. at 51-61, 64, 66; see

also id

Department testified that the marijuana was packaged in a manner common

for sale). Smith stated that the marijuana, as packaged, had a street value



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of $155; however, the marijuana, in bulk form, would have been worth $60-

$80.     Id. at 58; see also id. (wherein Smith testified that the marijuana

was not for personal consumption, as a user would not buy 31 individual



       We are cognizant that the crime of possession of a small amount of

marijuana is a lesser-included offense of possession with the intent to

deliver marijuana. Wilds, 362 A.2d at 278-79; see also Commonwealth

v. DeLong, 879 A.2d 234, 237 n.2 (Pa. Super. 2005) (stating that simple

possession of a controlled substance is a lesser-included offense of

possession with the intent to deliver a controlled substance).     However,

based upon the evidence presented at trial, the trial court correctly refused

to provide the charge to the jury on the offense of possession of a small



residence, Walton did not present any evidence to demonstrate that he

possessed the marijuana in question only for personal use.      Indeed, the

evidence, including the manner of the packaging, the digital scale, the

                                                                     ements

demonstrate that Walton possessed the marijuana with the intent to deliver.

See, e.g., Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-38 (Pa.

2007) (concluding that appellant possessed crack cocaine with intent to

deliver where he possessed a large quantity of unused zip-lock bags, and an

expert    testified



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possession of the crack cocaine, including the amount and the form of the

drug, established that he intended to distribute the crack cocaine);

Commonwealth v. Carpenter, 955 A.2d 411, 415 (Pa. Super. 2008)



consistent with personal use, the presence of the drug paraphernalia in

                                                           als, unequivocally



omitted).   Thus, the evidence is not capable of more than one rational

inference and the trial court properly refused to instruct the jury on the

possession of a small amount of marijuana offense. See Commonwealth

v. Ferrari, 593 A.2d 846, 850 (Pa. Super. 1991) (stating that an instruction

on a lesser-

record would permit the jury to find, rationally, the defendant guilty of the

lesser[-                                                 see also Hawkins,



      In his third claim, Walton contends that the trial court committed

reversible error in failing to give his corpus delicti instruction.   Brief for

Appellant at 24, 25.

            The corpus delicti rule is designed to guard against the
      hasty and unguarded character[,] which is often attached to
      confessions and admissions and the consequent danger of a
      conviction where no crime has in fact been committed. The
      corpus delicti rule is a rule of evidence. Our standard of review
      on appeals challenging an evidentiary ruling of the trial court is
      limited to a determination of whether the trial court abused its
      discretion. The corpus delicti rule places the burden on the


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     prosecution to establish that a crime has actually occurred
     before a confession or admission of the accused connecting him
     to the crime can be admitted. The corpus delicti is literally the
     body of the crime; it consists of proof that a loss or injury has
     occurred as a result of the criminal conduct of someone. The
     criminal responsibility of the accused for the loss or injury is not
     a component of the rule. The historical purpose of the rule is to
     prevent a conviction based solely upon a confession or
     admission, where in fact no crime has been committed. The
     corpus delicti may be established by circumstantial evidence.
     Establishing the corpus delicti in Pennsylvania is a two-step
     process. The


     statement to be admitted, the Commonwealth must prove the
     corpus delicti by a preponderance of the evidence. In order for
     the statement to be considered by the fact finder, the
     Commonwealth must establish the corpus delicti beyond a
     reasonable doubt.

Commonwealth v. Hernandez, 39 A.3d 406, 410-11 (Pa. Super. 2012)

(citation, quotation marks, and emphasis omitted).

     Walton argues that the instruction was warranted because an

important piece of evidence in deciding whether he possessed the marijuana

with the intent to deliver was his statements to the officers at the time of

the search. Brief for Appellant at 25. Walton asserts that the jury may not

have found him guilty of possession with intent to deliver without this

statement.    Id.   While Walton concedes the statement was properly

admitted into evidence, he claims the statement should not have been

considered because the Commonwealth did not prove the corpus delicti

beyond a reasonable doubt. Id. at 25-26.




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evidence to demonstrate that Walton possessed the marijuana with the



cumulative in nature, and did not form the sole basis of his convictions.

Based upon the above-noted evidence, Walton was not convicted solely on

the basis of an uncorroborated admission and therefore, no violation of the

corpus delicti rule occurred.4

      In his final claim, Walton contends that the trial court imposed an

illegal sentence by invoking the mandatory minimum provisions of 18

Pa.C.S.A. § 6317, Drug-free school zones.5        Brief for Appellant at 13.

Walton asserts that pursuant to Alleyne v. United States, 133 S.Ct. 2151

(2013), any fact that increases the mandatory minimum sentence for a

crime is an element that must be submitted to the jury and found beyond a

reasonable doubt. Brief for Appellant at 13-15, 17-20. Walton argues that

the jury did not make a specific finding of whether the drugs were found

within 1,000 feet of a school. Id. at 15-16, 17. Walton claims that because

the trial court made the school zone factual determination at sentencing, his

sentence was illegal and, accordingly, the case should be remanded for re-

sentencing. Id. at 20.

4
  We also note the trial court instructed the jury that the Commonwealth
must prove that Walton committed the charged crimes beyond a reasonable
doubt. N.T., 4/29/13, at 86-93.
5
  The mandatory minimum sentence under section 6317 is two years in
prison. See 42 Pa.C.S.A. § 6317(a).


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        Initially, we note that a mandatory minimum sentencing claim that

invokes the reasoning of Alleyne implicates the legality of the sentence.

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2

challenge to the legality of the sentence may be raised as a matter of right,

is non-waivable, and may be entertained so long as the reviewing court has

                Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa.

Super. 2007) (en banc).

        Aft

United States decided Alleyne and expressly held that any fact increasing

the mandatory minimum sentence for a crime is considered an element of

the crime to be submitted to the jury and found beyond a reasonable doubt.

Alleyne, 133 S.Ct. at 2155-56, 2163.             Alleyne decision, therefore,

renders those Pennsylvania mandatory minimum sentencing statutes that do

not pertain to prior convictions constitutionally infirm insofar as they permit

a jud

                                             Commonwealth v. Watley, 81

A.3d 108, 117 (Pa. Super. 2013) (en banc) (footnote omitted); see also id.

at 117 n.4 (wherein this Court lists the statutes, including section 6317, that

are unconstitutional due to the Alleyne decision).

        Instantly, no evidence was presented at trial as to whether Walton

committed the offense of possession with intent to deliver within 1,000 feet

of a school. See 18 Pa.C.S.A. § 6317(a). As such, the trial court erred by



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deciding this point at sentencing, as a sentencing factor under 18 Pa.C.S.A.

§ 6317(b). See N.T., 4/29/13, at 115; see also Alleyne, supra. Despite

this finding, at sentencing, the trial court stated that it would not impose the

mandatory minimum sentence, and instead, imposed a sentence of 2½ to 5

years in prison, the statutory maximum sentence,6 in light of the pre-

sentence investigation report, the nature and gravity of the offenses, and

                 minal record. See N.T., 4/29/13, at 116-17; see also Trial



the maximum sentence permitted by law irrespective of the school-zone

                            However, the written Sentencing Order, which

imposed the sentence of 2½ to 5 years in prison, lists the charges as

                                                             Marijuana (18.2g)



      While the trial court stated at sentencing that it was not imposing the

mandatory minimum sentence, the Sentencing Order indicates that it utilized

section 6317 in crafting its sentence.    See Commonwealth v. Willis, 68

A.3d 997, 1010 (Pa. Super. 2013) (sta

discrepancy between the sentence as written and orally pronounced, the

                                          see also id

statements made by the sentencing court, but not incorporated into the


6
   See 35 P.S. § 780-113(f)(2) (stating that a person who commits
possession with intent to deliver marijuana shall be sentenced to a prison
term not exceeding five years).


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written sentence signed by the court, are not part of the judgment of

                                                           Walton committed

the offense of possession with intent to deliver within 1,000 feet of a school

at sentencing, rather than permitting the jury to determine the fact beyond

a reasonable doubt, the sentence violates Alleyne. Thus, we must vacate

the sentence and remand for re-sentencing.

      Based upon the foregoing, we affirm the convictions, vacate the

sentence, and remand for re-sentencing.

      Judgment of sentence vacated.       Case remanded for re-sentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014




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