J-S07023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LUIS DANIEL MELENDEZ-DEJESUS

                            Appellant                 No. 1069 MDA 2015


                   Appeal from the PCRA Order June 11, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0002554-2010


BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                   FILED MAY 04, 2016

        Luis Daniel Melendez-Dejesus appeals the order entered on June 11,

2015, in the Court of Common Pleas of Lancaster County, that denied, after

a hearing, his first petition filed pursuant to the Pennsylvania Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.        In this appeal, Melendez-

Dejesus claims trial counsel was ineffective for failing to:     (1) request a

specific instruction concerning the crimen falsi convictions of Commonwealth

witness, Abraham Sanchez, (2) object to the delay in sentencing, which

violated Pa.R.Crim.P. 704(A), (3) object to the admission of irrelevant and

highly prejudicial “other crimes” evidence, and (4) argue at sentencing that

the mandatory minimum sentence of not less than five years’ incarceration

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S07023-16



could not be constitutionally imposed upon [Melendez-Dejesus]. Melendez-

Dejesus also claims the court’s imposition of a mandatory minimum

sentence is illegal. Based upon the following, we find merit solely in the final

sentencing claim raised herein, and therefore affirm in part, and reverse in

part and remand for resentencing.

      As the parties are well acquainted with the procedural and factual

background of this case, which is fully set forth in the PCRA court’s opinion,

we do not restate it here.    See PCRA Court Opinion, 6/11/2015, at 1–4.

Therefore, we proceed directly to the issues raised in this PCRA appeal.

      The legal principles that guide our review are well settled:

      “[A]s a general proposition, we review a denial of PCRA relief to
      determine whether the findings of the PCRA court are supported
      by the record and free of legal error.” Commonwealth v.
      Dennis, 609 Pa. 442, 17 A.3d 297, 301 (Pa. 2011) (citation
      omitted). A PCRA court’s credibility findings are to be accorded
      great deference, and where supported by the record, such
      determinations are binding on a reviewing court. Id., at 305
      (citations omitted). …

      To be entitled to relief on an ineffectiveness claim, a PCRA
      petitioner must establish: (1) the underlying claim has
      arguable merit; (2) no reasonable basis existed for counsel’s
      action or failure to act; and (3) he suffered prejudice as a result
      of counsel’s error, with prejudice measured by whether there is a
      reasonable probability the result of the proceeding would have
      been different. Commonwealth v. Chmiel, 612 Pa. 333, 30
      A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of
      counsel test from Commonwealth v. Pierce, 515 Pa. 153, 527
      A.2d 973, 975-76 (Pa. 1987)). Counsel is presumed to have
      rendered effective assistance. Commonwealth v. Ali, 608 Pa.
      71, 10 A.3d 282, 291 (Pa. 2010). Additionally, counsel cannot
      be deemed ineffective for failing to raise a meritless claim.
      Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (Pa.
      2006). Finally, because a PCRA petitioner must establish all the

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      Pierce prongs to be entitled to relief, we are not required to
      analyze the elements of an ineffectiveness claim in any specific
      order; thus, if a claim fails under any required element, we may
      dismiss the claim on that basis. Ali, at 291.

Commonwealth v. Treiber, 121 A.3d 435, 444–445 (Pa. 2015) (footnote

omitted).

       Melendez-Dejesus first argues that trial counsel was ineffective when

he failed to object to and preserve for appellate review the trial court’s

failure to give a specific instruction concerning the crimen falsi convictions of

Commonwealth witness Abraham Sanchez.

      At trial, Sanchez testified that while working as a confidential

informant he purchased cocaine from Melendez-Dejesus on two occasions

and that while employed at a garage, he witnessed Melendez-Dejesus sell

cocaine to his boss. See N.T., 5/10/2012, at 77, 80–89. Sanchez admitted

he had a criminal history, including crimen falsi convictions for false

identification to law enforcement, receiving stolen goods and two counts of

forgery. See id. at 78–79.

      At trial, the court instructed the jury regarding witnesses’ credibility

and gave additional instructions regarding the testimony of a witness. See

N.T., 5/11/202, at 239–241.        Melendez-Dejesus contends he was also

entitled to an instruction consistent with Pennsylvania Suggested Standard

Jury Instruction (Criminal) 4.08D based upon Sanchez’s crimen falsi




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convictions.1 With respect to the prejudice prong of the ineffectiveness test,

Melendez-Dejesus argues:

        Sanchez was the key Commonwealth witness at trial. It was he
        who directly implicated [Melendez-Dejesus]. His credibility was
        of the utmost importance.       If the jury had received an
        appropriate instruction concerning the crimen falsi convictions
        there appears to be a reasonable probability that the verdict
        would have been different.

        In rejecting this claim the [PCRA] Court stressed the evidence
        presented by the Commonwealth and the other instructions
        given by the Court. This reasoning cannot justify counsel’s
        failure. This was a search warrant. While there may have been
        sufficient evidence to justify an inference of an intent to deliver it
        was the testimony of Sanchez which was the only direct
        evidence that [Melendez-Dejesus] sold drugs.

Brief of Melendez-Dejesus at 14–15.

        The PCRA court rejected Melendez-Dejesus’s argument, stating, in

part:


____________________________________________


1
    The Pennsylvania Suggested Standard Jury Instruction at issue states:

        4.08D - IMPEACHMENT--PRIOR CONVICTION (WITNESS ONLY)

        1. You have heard evidence that one of the witnesses, [name of
           witness], has been convicted of the crime of [crime].

        2. The only purpose for which you may consider this evidence of
           prior conviction is in deciding whether or not to believe all or
           part of [name of witness]'s testimony. In doing so, you may
           consider the type of crime committed, how long ago it was
           committed, and how it may affect the likelihood that [name of
           witness] has testified truthfully in this case.

Pa.S.S.J.I. (Crim) 4.08D.



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            It is axiomatic that “[a] faulty jury charge will require the
     grant of a new trial only where the charge permitted a finding of
     guilt without requiring the Commonwealth to establish the
     critical elements of the crimes charged beyond a reasonable
     doubt.” Commonwealth v. Hansley, 24 A.3d 410, 420 (Pa.
     Super. 2011) (quoting Commonwealth v. Wayne, 553 Pa.
     614, 632-33, 720 A.2d 456, 465 (1998)). Further,

        [w]hen reviewing jury instructions for error, the charge
        must be read as a whole to determine whether it was fair
        or prejudicial. The trial court has broad discretion in
        phrasing its instructions, and may choose its own wording
        so long as the law is clearly, adequately, and accurately
        presented to the jury for its consideration.

     Commonwealth v. Sepulveda, 618 Pa. 262, 317, 55 A.3d
     1108, 1141 (2012). The Pennsylvania Supreme Court has
     determined, moreover, that additional jury instructions are not
     necessary, even if they would be helpful, as long as the jury
     instructions viewed as a whole are fair, accurate, and clearly and
     adequately express the law. See Commonwealth v. Blount,
     538 Pa. 156, 174-75, 647 A.2d 199, 209 (1994) (trial counsel
     not ineffective when supplemental jury instructions were not
     requested, even though the defendant believed that additional
     explanation would have been beneficial to his case).

           In reviewing the instructions given in this case, it is clear
     that they adequately, accurately and clearly presented the law to
     the jury. Moreover, they did not permit a finding of guilt without
     requiring the Commonwealth to establish the critical elements of
     the crime charged beyond a reasonable doubt. See Hansley,
     supra. Despite Sanchez’s testimony regarding the two probable
     cause buys, [Melendez-Dejesus] was not charged with these two
     deliveries, but rather [Melendez-Dejesus] was charged with one
     count of possession with intent to deliver. The Commonwealth
     established all of the elements of this crime beyond a reasonable
     doubt.

           Section 780-113(a)(30) of The Controlled Substance,
     Drug, Device and Cosmetic Act prohibits the following acts:
     “[T]he manufacture, delivery or possession with intent to
     manufacture or deliver, a controlled substance by a person not
     registered under this act. …” 35 [P.S.] § 780-113(a)(3). The
     Commonwealth establishes this offense of possession with intent

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     to deliver when it proves beyond a reasonable      doubt that the
     defendant possessed a controlled substance         with intent to
     deliver it. See Commonwealth v. Little, 879        A.2d 293, 297
     (Pa. Super. 2005) (citing Commonwealth v.          Kirkland, 831
     A.2d 607, 61 (Pa. Super. 2003). …

            In the instant case, during the execution of a search
     warrant, police officers discovered 12 grams of cocaine in
     [Melendez-Dejesus’s] bedroom. This cocaine was packaged in
     two different ways: one Ziploc bag that contained 7.3 grams of
     cocaine; and a plastic bag that contained nine smaller, knotted
     plastic baggies, that each contained cocaine, amounting to a
     total of 4.7 grams. This cocaine was found in the two front
     pockets of a 4XL sweatshirt which was found in a bedroom closet
     containing only men’s clothing.

           The police also recovered from the bedroom [Melendez-
     Dejesus’s] photo identification, and a Sentry safe key. Despite
     being unemployed, cash in the amount of $4,225.00, folded into
     $100 increments, was found in the Sentry safe in [Melendez-
     Dejesus’s] bedroom. Detective Ondeck testified that, based on
     his training and experience as an undercover officer with the
     Lancaster County Drug Task Force, individuals selling controlled
     substances often keep their money in $100 increments.
     Noticeably absent from the residence was any drug
     paraphernalia for personal use.

           Detective    Jeremy      Schroeder     testified   for   the
     Commonwealth as a drug expert. Based on all of the evidence
     and testimony, it was Detective Schroeder’s expert opinion that
     [Melendez-Dejesus’s] possession of the cocaine was consistent
     with possession with intent to deliver rather than a mere
     possession for personal use. Thus, all of the evidence, along with
     the expert testimony of Detective Schroeder, established beyond
     a reasonable doubt that [Melendez-Dejesus] possessed the
     cocaine with the intent to deliver.

            Even were there no reasonable strategic basis for failing to
     seek a supplemental jury instruction regarding the crimen falsi
     convictions of Sanchez, [Melendez-Dejesus] still fails to show
     resulting prejudice. He has not established that but for counsel’s
     failure to request the instruction, the outcome of the proceedings
     would have been different. See Commonwealth v. Douglas,



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      558 Pa. 412, 434, 737 A.2d 1188, 1200 (1999). [Melendez-
      Dejesus], therefore, is not entitled to relief on this allegation.

PCRA Court Opinion, 6/11/2015, at 10–13 (record citations omitted).

      We agree with the sound reasoning of the PCRA judge. Based on our

review, we conclude Melendez-Dejesus has failed to establish the prejudice

prong of his claim that counsel was ineffective for failing to request a jury

instruction regarding the crimen falsi convictions of Sanchez.        Accordingly,

we adopt the trial court’s discussion as dispositive of Melendez-Dejesus’s

first claim of trial counsel ineffectiveness.

      In his second claim, Melendez-Dejesus contends trial counsel was

ineffective   for   failing   to   object   to   the   delay   in   sentencing   of

Melendez-Dejesus which violated Pa.R.Crim.P. 704. That rule states, in

pertinent part:


   (A)   Time for Sentencing.

   (1)    Except as provided by Rule 702(B), sentence in a court
          case shall ordinarily be imposed within 90 days of
          conviction or the entry of a plea of guilty or nolo
          contendere.

   (2)    When the date for sentencing in a court case must be
          delayed, for good cause shown, beyond the time limits
          set forth in this rule, the judge shall include in the record
          the specific time period for the extension.

Pa.R.Crim.P. 704(A)(1)-(2).




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      Here, Melendez-Dejesus was sentenced 90 days after the expiration of

the 90-day period provided in Rule 704(A)(1).       See PCRA Court Opinion,

6/11/2015, at 15 n.9.

      In Commonwealth v. Anders, 725 A.2d 170, 173 (Pa. 1999), the

Pennsylvania Supreme Court held that “a defendant who is sentenced in

violation of Rule 1405 [now Pa.R.Crim.P. 704] is entitled to discharge only

where the defendant can demonstrate that the delay in sentencing

prejudiced him or her.”   The Anders Court also set forth factors that the

trial court should consider in determining whether discharge is appropriate,

including:

      (1) the length of the delay falling outside of Rule [704(A)(1)’s]
      [9]0-day-and-good-cause provisions, (2) the reason for the
      improper delay, (3) the defendant’s timely or untimely assertion
      of his rights, and (4) any resulting prejudice to the interests
      protected by his speedy trial and due process rights. Prejudice
      should not be presumed by the mere fact of an untimely
      sentence. Our approach has always been to determine whether
      there has in fact been prejudice, rather than to presume that
      prejudice exists. The court should examine the totality of the
      circumstances, as no one factor is necessary, dispositive, or of
      sufficient importance to prove a violation.

Id. (citations and internal quotation marks omitted) (emphasis added).

      The PCRA court found trial counsel’s testimony at the PCRA hearing

“confirmed that the delay in sentencing was due, in part, to (1) the difficulty

locating [Melendez-Dejesus] within the SCI system due to the fact that he

was listed under the name ‘Danny’ Melendez-Dejesus, as opposed to Luis,

and (2) his inadvertent transfers within the SCI system.”         PCRA Court



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Opinion, 6/11/2015, at 17. The PCRA court further opined that Melendez-

Dejesus had suffered no actual prejudice:

      [Melendez-Dejesus] clearly suffered no actual prejudice in this
      case as he received credit for the time he was incarcerated, and
      did not spend more time incarcerated than if he had been
      sentenced within 90 days of conviction. See Commonwealth
      v. Still, 783 A.2d 829 (Pa. Super. 2001) (where defendant
      received credit for time served and failed to show prejudice,
      eight month delay in sentencing did not require dismissal of
      charges); Commonwealth v. Adams, 760 A.2d 33 (Pa. Super.
      2000) (prejudice claim rejected for defendant in jail for nearly a
      year without being sentenced, where he received credit for time
      in jail and did not spend more time incarcerated received credit
      for time in jail and did not spend more time incarcerated than he
      would have had he been sentenced earlier). See also
      [Commonwealth v.] Diaz, [51 A.3d 884, 887 (Pa. Super.
      2012)] (delay of 278 days between conviction and sentence,
      although significant, was not result of intentional or inexcusable
      conduct on the part of the trial court or Commonwealth, and was
      not without good cause, so as to warrant discharge);
      Commonwealth v. McLean, 869 A.2d 537, 540 (Pa. Super.
      2005) (delay of seven months from entry of verdict to
      sentencing did not prejudice defendant); Commonwealth v.
      Dupre, 866 A.2d 1089 (Pa. Super. 2005) (defendant not entitled
      to discharge, despite fact that she was not sentenced within 90
      days of conviction, where she failed to allege prejudice from the
      delay).

Id. at 17–18.

      Our review finds the PCRA court has properly analyzed the facts of this

case in light of Rule 704(A) and relevant case law. Accordingly, because

Melendez-Dejesus suffered no actual prejudice, his ineffectiveness claim

presents no basis upon which to grant relief.

      In his third claim, Melendez-Dejesus argues trial         counsel was

ineffective in failing to object to irrelevant and highly prejudicial “other


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crimes” evidence. See Pa.R.E. 404(b)(1).2 Specifically, Melendez-Dejesus

points to the following exchange that occurred during direct examination of

Commonwealth witness, Abraham Sanchez, during which Sanchez referred

to prior criminal activity by Melendez-Dejesus with no objection by trial

counsel:

       Q: And what can you tell us about Danny?

       A: I met Danny when I worked at a garage on Old Dorwart
       Street here in the City of Lancaster. My boss at the garage used
       to buy cocaine off of him, and that’s how I met Danny.

N.T., 5/10/2012, at 80.

       The PCRA court found that counsel’s explanation for his failure to

object — “the bell had already been rung” and he “didn’t feel like it was

going to gain [him] anything other than to highlight bad testimony” — was a

tactical decision on the part of trial counsel that had a “reasonable, strategic

basis.” PCRA Court Opinion, 6/11/2015, at 19–20, citing N.T., 11/14/2014,

at 13.3 The PCRA court concluded Melendez-Dejesus had failed to prove the

____________________________________________


2
  Pennsylvania Rule of Evidence 404(b)(1) provides: “Evidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with
the character.”
3
  At the PCRA hearing, trial counsel testified explained why he did not object
to Sanchez’s testimony, as follows:

       A. I would say that I didn’t – I mean, the bell had already been
       rung. I didn’t feel like it was going to gain me anything other
       than possibly to highlight bad testimony.
(Footnote Continued Next Page)


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second prong of the ineffectiveness test, namely, that counsel’s actions

lacked a reasonable basis. Id. at 20.

      In reviewing this claim, we are guided by the following principles:

      [A] review of matters involving trial strategy is deferential. Trial
      counsel will be deemed to have acted reasonably if the course
      chosen by trial counsel had some reasonable basis designed to
      effectuate his client's interests. Moreover, a claim of
      ineffectiveness will not succeed by comparing, in hindsight, the
      trial strategy trial counsel actually employed with the
      alternatives foregone. Finally, [a]lthough we do not disregard
      completely the reasonableness of other alternatives available to
      counsel, the balance tips in favor of a finding of effective
      assistance as soon as it is determined that trial counsel’s
      decision had any reasonable basis.

Commonwealth v. Miller, 987 A.2d 638, 653 (Pa. 2009) (citations and

quotation marks omitted). Furthermore,


      [c]ounsel are not constitutionally required to forward any and all
      possible objections at trial, and the decision of when to interrupt
      oftentimes is a function of overall defense strategy being
      brought to bear upon issues which arise unexpectedly at trial
      and require split-second decision-making by counsel. Under
      some circumstances, trial counsel may forego objecting to an
      objectionable remark or seeking a cautionary instruction on a
      particular point because[o]bjections sometimes highlight the
      issue for the jury, and curative instructions always do.

Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012) (citations and

quotation marks omitted)).
                       _______________________
(Footnote Continued)

      I see what you’re getting at. I mean, and it was damaging, I
      just didn’t know that our interests were going to be served by
      drawing further attention to it.

N.T., 11/14/2014, at 13.



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       We find no error in the PCRA court’s decision to credit trial counsel’s

explanation. Trial counsel’s decision not to highlight Sanchez’s testimony by

objecting     and     requesting     a    cautionary      instruction     constituted     a

reasonable    trial strategy. See Koehler, supra.

       Furthermore, we find the PCRA court’s decision to reject this

ineffectiveness      claim   is    correct     because     Melendez-Dejesus         cannot

demonstrate any resulting prejudice from counsel’s decision.                    Melendez-

Dejesus claims he suffered prejudice because by failing to object “counsel

effectively waived any right [Melendez-Dejesus] had to the presumption of

innocence.”         Melendez-Dejesus’s       Brief   at   19.   We      disagree.       The

Commonwealth presented ample evidence that supports the jury’s verdict

finding Melendez-Dejesus guilty of PWID.

       At trial, Sanchez testified that he made two controlled buys of cocaine

from Melendez-Dejesus at Melendez-Dejesus’s residence. N.T., 5/10/2012,

at 81–89.      In addition, Detective Peter Ondeck testified regarding the

controlled buys he set up with Sanchez in this case, his method to ascertain

Melendez-Dejesus’s       residence,      and   his   surveillance    of   the   residence

preliminary to his application for a search warrant, as well as the cocaine

and money recovered upon execution of the search warrant.                   Id. at 125–

165.   Detective Jason Scott also testified regarding the cocaine recovered

during the execution of the search warrant. Id. at 108–116. In light of this

evidence, trial counsel’s failure to object cannot be said to have affected the


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outcome of the trial.   Accordingly, Melendez-Dejesus’s claim that counsel

was ineffective in failing to object to Sanchez’s testimony regarding

Melendez-Dejesus’s prior criminal activity warrants no relief.

      In his fourth issue, Melendez-Dejesus contends trial counsel was

ineffective in failing to litigate and preserve for appellate review the issue

that his mandatory minimum sentence of five years’ incarceration could not

be constitutionally imposed upon him. In his fifth claim, Melendez-Dejesus

contends the imposition of a five-year mandatory minimum sentence was

illegal and must be vacated. In making these arguments, Melendez-Dejesus

points to the United States Supreme Court decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013) .       Because we find merit in Melendez-

Dejesus’s fifth issue, we need not address the ineffective claim raised in his

fourth issue.

      Here, on November 9, 2012, Melendez-Dejesus received a mandatory

sentence of five to 10 years’ incarceration plus a $30,000.00 fine, pursuant

to 18 Pa.C.S. § 7508 (“Drug trafficking sentencing and penalties.”).       No

post-sentence motions were filed.    Melendez-Dejesus filed a timely appeal

on December 7, 2012.      This Court affirmed the judgment of sentence on

September 9, 2013. See Commonwealth v. Melendez-Dejesus, 87 A.3d

376 (Pa. Super. 2013) (unpublished memorandum). On April 1, 2014, the

Pennsylvania Supreme Court denied allowance of appeal. Commonwealth

v. Melendez-Dejesus, 89 A.3d 661 (Pa. 2014).


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       While Melendez-Dejesus’s appeal was pending in this Court, the United

States Supreme Court decided Alleyne, supra, on June 17, 2013. In

Alleyne, the United States Supreme Court held that “[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.”                  Alleyne, 133 S. Ct. at

2155. Applying this mandate, this Court, in Commonwealth v. Newman,

99 A.3d 86 (Pa. Super. 2014) (en banc), concluded that Alleyne rendered

the mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1

unconstitutional and found the unconstitutional provisions of section 9712.1

were not severable from the statute as a whole.4 The Newman Court also

instructed that Alleyne applies to any criminal case still pending on direct

appeal as of June 27, 2013, the date of the Alleyne decision. Newman, 99

A.3d at 90.       In light of Alleyne and Newman, a panel of this Court, in

Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014), appeal

denied, 121 A.3d 494 (Pa. 2015), addressed a direct appeal sentencing

challenge    to    section   7508     and      held   section    7508   to   be   facially

unconstitutional in its entirety. Cardwell, 105 A.3d at 754–755.

       In this case, Melendez-Dejesus’s case was pending on direct review

when     Alleyne      was    decided.          Therefore,   as    recognized      by   the

____________________________________________


4
 See also Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (holding
18 Pa.C.S. § 6317 is unconstitutional and non-severable).




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Commonwealth,5         Alleyne      is   applicable.   See   Newman,   supra.

Furthermore, this Court has held, in the context of timely collateral review,

that Alleyne invalidated a mandatory minimum sentence when petitioner’s

judgment of sentence was pending on direct review at the time Alleyne was

decided.    See Commonwealth v. Ruiz, ___ A.3d ___, [2015 PA Super

275] (Pa. Super. 2015). Accordingly, based on the foregoing case law, we

conclude Melendez-Dejesus’s sentence is unconstitutional and must be

vacated.

       In sum, the ineffectiveness claims presented in this appeal provide no

basis upon which to grant relief, and the order of the PCRA court is affirmed

as to those claims.      We reverse only with respect to the PCRA’s denial of

relief on Melendez-Dejesus’s sentencing claim, vacate the judgment of

sentence, and remand for a new sentencing hearing.

       Order affirmed in part, reversed in part.         Judgment of sentence

vacated. Case remanded for resentencing. Jurisdiction relinquished.




____________________________________________


5
    See Commonwealth Brief at 20–21.



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     Bowes, J., joins in this decision.

     Fitzgerald, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




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