J. A18026/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                    v.                  :
                                        :
SAMUEL D. MITCHELL,                     :         No. 1751 MDA 2015
                                        :
                         Appellant      :


            Appeal from the Judgment of Sentence, August 21, 2014,
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0006021-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 06, 2016

        Samuel D. Mitchell appeals from the August 21, 2014 judgment of

sentence entered in the Court of Common Pleas of Dauphin County after a

jury convicted him of possession with intent to deliver a controlled substance

(“PWID”),1 conspiracy -- PWID,2 unlawful possession of drug paraphernalia,3

and unlawful possession of a small amount of marijuana.4       The trial court

sentenced appellant to an aggregate term of incarceration of 60 to




* Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S.A. § 903(c).
3
    35 P.S. § 780-113(a)(32).
4
    35 P.S. § 780-113(a)(31)(i).
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120 months        with   all   charges    running     concurrently.       This   term   of

incarceration included a mandatory minimum of 5 years pursuant to

42 Pa.C.S.A. § 9712.1 relating to sentences for certain drug offenses

committed with a firearm. We vacate appellant’s judgment of sentence and

remand for resentencing.

      At the outset, we note that the underlying facts giving rise to

appellant’s convictions are not germane to this appeal. With respect to the

procedural history, the record reflects that appellant failed to file a

post-sentence motion pursuant to Pa.R.Crim.P. 720.                  The record further

reflects   that    on    September       4,   2014,   appellant   filed   a   motion    for

extraordinary relief from imposition of mandatory minimum sentence.

(No. 1599 MDA 2014, Docket #45.) Although appellant was represented by

counsel at this time, this motion appears to be a pro se filing. As noted by

the trial court:

                    The post-trial procedural history in this matter
             is somewhat confusing due to [appellant’s] various
             pro se filings despite being represented by counsel,
             including one on which he improperly attempted to
             represent as being filed by his counsel of record.
             Similarly confusing is the pro se [Pa.R.A.P.] 1925(b)
             statement submitted to the Court. The statement of
             matters complained of on appeal is far from concise
             as it is a four (4) page single paragraph that appears
             to raise ineffective assistance of counsel claims that
             are more appropriately addressed in a Petition under
             the Post-Conviction Relief Act, alleges errors related
             to this Court’s disposition of his pre-trial suppression
             motion, appears to raise a possible challenge to the
             sufficiency of the evidence underlying the conviction
             for conspiracy to commit [PWID], raises a challenge


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            to the mandatory minimum sentence imposed
            pursuant to 42 Pa.C.S.[A.] § 9712.1, and finally,
            makes a completely incorrect claim that a hearing on
            his suppression motion never occurred prior to trial.

Trial court opinion, 12/22/14 at 2-3 (footnote omitted).

      The trial court further incorrectly noted that it ordered appellant to file

his Pa.R.A.P. 1925(b) statement by September 22, 2014. (Id. at 3.) The

trial court then incorrectly concluded that because appellant filed his

Rule 1925(b) statement on October 7, 2014, it was untimely. (Id.)

      Our review of the record reveals that the trial court entered an order

on September 22, 2014, that required appellant to file his Rule 1925(b)

statement within 21 days of entry of the September 22, 2014 order.

(No. 1599 MDA 2014, Docket #49.)            The record further reflects that

appellant filed his Rule 1925(b) statement on October 6, 2014, which was

well within the 21-day period.5       (No. 1599 MDA 2014, Docket #51.)

Therefore, appellant filed a timely Rule 1925(b) statement.

      The record further reflects that on January 12, 2015, this court

dismissed appellant’s direct appeal at No. 1599 MDA 2014 for appellant’s

failure to file a brief.   (Order of court, 1/12/15.)      On March 17, 2015,

appellant then filed a timely petition under the Post-Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-9546.        Subsequently, on September 11, 2015,



5
  We note that the docket indicates that appellant’s Pa.R.A.P. 1925(b)
statement was filed on October 7, 2014, but the statement is time stamped
as being filed on October 6, 2014. (No. 1599 MDA 2014, Docket #51.)


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appellant’s direct appeal rights were reinstated.      (No. 1751 MDA 2015,

Docket #14.) On October 13, 2015, appellant’s notice of appeal to this court

was docketed. Appellant is represented by counsel in this appeal.

      Appellant raises the following issues for our review:

            A.     WHETHER THE TRIAL COURT COMMITTED AN
                   ERROR OF LAW WHEN IT PERMITTED THE
                   COMMONWEALTH’S EXPERT WITNESS TO
                   TESTIFY IN A MANNER THAT WAS UNDULY
                   PREJUDICIAL IN THAT IT INVITED THE JURY
                   TO ACCEPT HIS OPINION REGARDING AN
                   ULTIMATE ISSUE OF FACT RATHER THAN
                   INDEPENDENTLY ASCERTAIN AND ASSESS
                   THE FACTS[?]

            B.     WHETHER THE TRIAL COURT COMMITTED AN
                   ERROR OF LAW WHEN IT SENTENCED THE
                   APPELLANT TO A MANDATORY SENTENCE IN
                   RELIANCE   ON  STATUTORY   SENTENCING
                   GUIDELINES          [THAT]        ARE
                   UNCONSTITUTIONAL[?]

Appellant’s brief at 4.

      Appellant first complains that the trial court erred by permitting the

Commonwealth’s expert on street-level drug trafficking to testify at trial that

appellant possessed marijuana with intent to distribute under the guise of a

hypothetical question during direct examination.         (Appellant’s brief at

10-12.) Appellant concedes that “[a]lthough trial counsel could and should

have objected to this aspect of the testimony,” he nevertheless claims that

“the trial court had an obligation to address this prejudicial testimony

immediately.” (Appellant’s brief at 12.) It is well settled that a “[f]ailure to

raise a contemporaneous objection to the evidence at trial waives that claim


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on appeal.” Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa.Super.

2013) (citations omitted); see also Pa.R.A.P. 302(a) (“Issues not raised in

the lower court are waived and cannot be raised for the first time on

appeal.”). Therefore, appellant waives this issue on appeal.

      Appellant next contends that Alleyne v. United States, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013), and its progeny, render the mandatory

sentence imposed upon him under 42 Pa.C.S.A. § 9712.1 illegal.          See

Alleyne, 133 S.Ct. at 2163 (holding that “facts that increase mandatory

minimum sentences must be submitted to the jury” and must be found

beyond a reasonable doubt). We agree.

      This claim implicates the legality of appellant’s sentence and,

therefore, cannot be waived. See Commonwealth v. Newman, 99 A.3d

86, 90 (Pa.Super. 2014) (en banc) (finding that “a challenge to a sentence

premised upon Alleyne [] implicates the legality of the sentence and cannot

be waived on appeal.”).6   We note that the trial court acknowledges that

appellant’s sentence is illegal.   (Trial court opinion, 12/22/14 at 3-6.)

Additionally,   the   Commonwealth      does    not   contest   this   issue.

(Commonwealth’s brief at 18-19.)




6
  We note that our supreme court granted allocatur to determine whether a
challenge to a sentence pursuant to Alleyne, supra, implicates the legality
of the sentence and is, therefore, non-waivable.      Commonwealth v.
Barnes, 122 A.3d 1034 (Pa. 2015) (per curiam). As our high court has yet
to decide this issue, Newman, supra, controls.


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      Alleyne rendered 42 Pa.C.S.A. § 9712.1 constitutionally infirm in its

entirety because the statute allows the sentencing court to determine, by

only a preponderance of the evidence, the application of a mandatory

minimum.       See Newman, 99 A.3d at 98; see also Commonwealth v.

Watley,    81    A.3d   108,    112    n.2   (Pa.Super.   2013)    (en    banc);

Commonwealth v. Munday,               78 A.3d   661,   666   (Pa.Super.   2013).

Therefore, because the trial court imposed appellant’s sentence under

Section 9712.1, it is unconstitutional in its entirety and, therefore, illegal and

must be vacated.     Because this unconstitutional infirmity upsets the trial

court’s overall sentencing scheme, we vacate appellant’s judgment of

sentence in its entirety and remand for resentencing, without consideration

of 42 Pa.C.S.A. § 9712.1.      See Commonwealth v. Ferguson, 107 A.3d

206, 213-214, 216 (Pa.Super. 2015) (vacating entire sentence pursuant to

Alleyne and remanding for resentencing on all counts, where the sentence

encompassed both counts subject to mandatory minimum sentencing

provisions and counts not subject to mandatory minimum sentencing

provisions).

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/6/2016




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