J-A17030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

SEARVILLE MILBOURNE-WINTERS

                         Appellant                     No. 897 EDA 2013


          Appeal from the Judgment of Sentence January 24, 2013
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0004713-2011


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 15, 2014

      Appellant, Searville Milbourne-Winters, appeals from the judgment of

sentence entered on January 24, 2013, in the Court of Common Pleas of

Chester County.     We vacate the judgment of sentence and remand for

resentencing.

      Late one night, a man, later identified as Milbourne-Winters, parked

his vehicle along a no-parking section of a street outside of a bar, alighted

from his vehicle, and entered the bar. An officer observed this and walked

up to the vehicle to ticket it for the parking violation. The officer looked into

the car and observed on the middle of the passenger seat a “tied sandwich

baggie of a green leaf-like substance.” N.T., Suppression Hearing, 10/1/12,

at 11. Based on his “training and experience,” the officer believed that the

substance in the sandwich bag was marijuana.          Id., at 16.    Eventually,
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Milbourne-Winters left the bar and the officer approached him and asked if

the vehicle was his and Milbourne-Winters responded that it was. The officer

immediately arrested Milbourne-Winters.

       The police officer had the vehicle towed and during an inventory

search, an officer opened the trunk and smelled a strong odor of marijuana.

The officer obtained a search warrant and a search of the trunk revealed

marijuana and cocaine.

       Prior to trial, Milbourne-Winters moved to suppress the evidence of the

contraband, which, after a hearing, the suppression court denied.         The

matter proceeded to trial and the jury convicted Milbourne-Winters of,

among other things, possession with intent to deliver cocaine. The verdict

slip did not ask the jury to make a factual finding as to the weight of the

cocaine.    At sentencing, the trial court imposed the mandatory minimum

sentence pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii).1      After the denial of

post-sentence motions, this timely appeal followed.

       Milbourne-Winters first argues that the police officer did not have

probable cause to arrest him and that the illegal arrest renders the

subsequently found contraband inadmissible.      At the suppression hearing,
____________________________________________


1
  The Commonwealth incorrectly cites 18 Pa.C.S.A. § 7508(a)(2)(ii) in its
brief. See Commonwealth’s Brief, at 18-19. Subsection 3, not 2 applies in
this case. See, e.g., Order, filed 2/26/13 (“18 Pa.C.S.A. § 7508(a)(3)(ii)
applies to the charge of PWID [cocaine] of which the Defendant was
convicted.”).




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however, Milbourne-Winters’s counsel argued that the officer “did not have

reasonable suspicion to arrest my client….”              N.T., Suppression Hearing,

10/1/12, at 6 (emphasis added).          The particular claim Melbourne-Winters

seeks to present on appeal was not raised at the suppression hearing. See

id., at 3-4 (counsel for Melbourne-Winters setting forth specific suppression

claims). Indeed, the suppression court construes the claims advanced at the

suppression hearing as “Defendant asserts that the Commonwealth did not

have the reasonable suspicion to detain Defendant or the probable cause

necessary for the search warrant.”                Order, filed 10/11/12, at 2 n.1.

Melbourne-Winters’s Rule 1925(b) statement simply asserts, “the [c]ourt

committed an error of law in denying the Appellant’s pre-trial motion to

suppress evidence collected from the automobile.” Rule 1925(b) Statement,

9/13/13, at ¶ 2. a.

      As he did not present this issue in the lower court we must find it

waived.   See 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.”);

Commonwealth v. Little, 903 A.2d 1269, 1272-1273 (Pa. Super. 2006)

(“[A]ppellate   review   of    an   order    denying     suppression    is   limited   to

examination of the precise basis under which suppression initially was

sought; no new theories of relief may be considered on appeal.”). Even if we

had addressed this claim on the merits, it would not entitle Melbourne-

Winters to relief.


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      Generally, a police officer must have a warrant to make an arrest. If

an officer has probable cause, however, he can make a warrantless arrest.

Probable cause is determined by the totality of the circumstances.           See

Commonwealth v. Martin, ___ A.3d ___, ___, 2014 WL 4745782, *10

(Pa., filed September 24, 2014).

      Probable cause exists where the facts and circumstances within
      the officer’s knowledge are sufficient to warrant a person of
      reasonable caution in the belief that an offense has been or is
      being committed, and must be viewed from the vantage point of
      a prudent, reasonable, cautious police officer on the scene at the
      time of the arrest guided by his experience and training. As we
      have stated:

      Probable cause is made out when the facts and circumstances
      which are within the knowledge of the officer at the time of the
      arrest, and of which he has reasonably trustworthy information,
      are sufficient to warrant a man of reasonable caution in the
      belief that the suspect has committed or is committing a crime.
      The question we ask is not whether the officer’s belief was
      correct or more likely true than false. Rather, we require only a
      probability, and not a prima facie showing, of criminal activity. In
      determining whether probable cause exists, we apply a totality
      of the circumstances test.

Id. (citations and quotation marks omitted; emphasis in original).

      Here, the police officer observed on the middle of the passenger seat a

“tied sandwich baggie of a green leaf-like substance.”       N.T., Suppression

Hearing, 10/1/12, at 11. Based on his “training and experience,” the officer

believed that the substance in the sandwich bag was marijuana. Id., at 16.

When asked, Milbourne-Winters admitted the vehicle was his.         See id., at

17.




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       Had we addressed this claim on the merits, we would have found that

the police officer had probable cause to arrest Milbourne-Winters. There was

certainly a probability that the “green leaf like substance” was marijuana.

Milbourne-Winter’s tries to challenge the credibility of the police officer by

inferring that there was no way for him to know it was marijuana—it was

dark, the officer did not utilize a flashlight, and he did not smell marijuana.

The officer, however, testified that he observed a “green leaf-like substance”

that he believed to be marijuana based upon his training and experience.

The suppression court credited this testimony.           We cannot reject this

credibility determination.       We also stress that the officer did not have to

know, categorically, that the substance was marijuana.             All that was

required was a probability that it was contraband.

       Lastly, Milbourne-Winters argues that the trial court erred when it

imposed the mandatory minimum sentence pursuant to 18 Pa.C.S.A. §

7508(a)(2)(ii). Specifically, he argues that § 7508 is unconstitutional in light

of Alleyne v. United States, 133 S.Ct. 2151 (2013).2

____________________________________________


2
  The Commonwealth maintains that Milbourne-Winters waived this issue, as
he failed to present it in his Rule 1925(b) statement. This Court has
previously stated in addressing the Alleyne decision that where
“[a]pplication of a mandatory minimum sentence gives rise to illegal
sentence concerns, even where the sentence is within the statutory limits[,]
[such] [l]egality of sentence questions are not waivable.” Commonwealth
v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013).                  See also
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc)
(“We find that a challenge to a sentence premised upon Alleyne likewise
(Footnote Continued Next Page)


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      A panel of this Court recently held that § 7508 is unconstitutional on

its face.    See Commonwealth v. Fennell, ___ A.3d ___, 2014 WL

6505791 (Pa. Super., filed November 21, 2014).                 Therefore, we are

constrained to vacate Milbourne-Winters’s judgment of sentence3 and

remand for resentencing without consideration of the mandatory minimum

sentence under § 7508.

      Judgment of sentence vacated.               Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

      Judge Stabile joins in the memorandum.

      President Judge Gantman concurs in the result.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2014



                       _______________________
(Footnote Continued)

implicates the legality of the sentence and cannot be waived on appeal.”).
Despite stating that the issue is waived, the Commonwealth then asks this
Court to “remand this case for resentencing” due to the Alleyne violation.
The Commonwealth does argue that § 7508 is not constitutionally infirm.
We will address the merits of this issue.
3
 The vacating of the judgment of sentence does not affect Milbourne-
Winters’s convictions, which remain intact.



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