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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
TYRONE L. FISHER,                        :        No. 2722 EDA 2013
                                         :
                         Appellant       :


       Appeal from the Judgment of Sentence, September 17, 2013,
           in the Court of Common Pleas of Philadelphia County
            Criminal Division at Nos. CP-51-CR-0010517-2012,
                         MC-51-CR-0025405-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 30, 2015

     Tyrone L. Fisher appeals, pro se, from the judgment of sentence of

September 17, 2013. We affirm the conviction, but vacate the judgment of

sentence and remand for re-sentencing.

     The facts of this case are as follows. Officer Chris Harrigan testified

that on June 22, 2012, at approximately 1:25 a.m., he and his partner were

in the area of Bartram Avenue and Island Avenue.       (Notes of testimony,

1/22/13 at 8-9.)        They were in their police vehicle turning left onto

Island Avenue when they observed appellant stopped in the running lanes.

(Id. at 9-10.)   As they slowed down beside appellant’s vehicle, appellant

leaned his head out of the window and asked the officers for directions to

Island Avenue. (Id.) The officers told him it was in front of him. (Id. at
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10.)    At that point, appellant proceeded down Island Avenue.       (Id.)   The

officers ran appellant’s license plate number, and the vehicle was reported

stolen. (Id.)

        The officers effectuated a vehicle stop approximately one block away,

at Island and Lindbergh. (Id. at 11.) Officer Harrigan asked appellant to

step out of the vehicle. (Id.) Officer Harrigan placed appellant in handcuffs

and explained that the vehicle had been reported stolen.     (Id.)    During a

search incident to arrest, Officer Harrigan recovered 51 pink packets

containing a white chunky substance, and 16 blue packets containing a

green weed substance from appellant’s left pants pocket. (Id.) The items

were tested and came back positive for cocaine and marijuana.           (Id. at

22-23.) The parties stipulated that, if called to testify, Ms. Peg McGrory of

the Philadelphia Police Department, an expert in the field of narcotics

packaging and sales, would testify that the drugs were possessed with the

intent to deliver. (Id. at 19.)

        Following a bench trial held January 22, 2013, appellant was found

guilty of one count each of knowing and intentional possession, and

possession with intent to deliver (“PWID”). Appellant was found not guilty of

receiving stolen property and unauthorized use of an automobile.1

        On September 17, 2013, appellant was sentenced to a mandatory

minimum sentence of 3 to 6 years’ incarceration for PWID, followed by


1
    The owner of the vehicle was not called to testify.


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2 years of reporting probation for possession. A timely notice of appeal was

filed on September 25, 2013.        On May 2, 2014, following a Grazier2

hearing, appellant was permitted to proceed pro se. Appellant has complied

with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an

opinion, requesting that this case be remanded for re-sentencing in light of

recent case law holding that 18 Pa.C.S.A. § 7508, the drug trafficking

sentencing statute, is unconstitutional.

       In his first argument on appeal, appellant claims that the police did not

have probable cause for the search. As the Commonwealth observes, this

claim is waived because appellant did not litigate a pre-trial suppression

motion.    (Commonwealth’s brief at 6.)     Commonwealth v. O’Black, 897

A.2d 1234, 1240 (Pa.Super. 2006). Furthermore, the search was incident to

a lawful arrest, and the police did not require a warrant or exigent

circumstances, as appellant argues.        See Commonwealth v. Gelineau,

696 A.2d 188, 194-195 (Pa.Super. 1997), appeal denied, 705 A.2d 1305

(Pa. 1998) (“A well-recognized exception to the warrant requirement is

where the search is conducted incident to arrest.”) (citations omitted).

       In his second argument on appeal, appellant seems to be arguing that

because he was found not guilty of receiving stolen property and

unauthorized use of an automobile, he could not be found guilty of the drug

charges. This argument is patently meritless. As explained above, appellant


2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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was found not guilty of the other charges because the owner of the vehicle

did not testify and appellant’s hearsay objection to Officer Harrigan’s

testimony on the issue was properly sustained.          (Notes of testimony,

1/22/13 at 13.) In addition, even if the verdict were somehow inconsistent,

it would not require reversal.      See Commonwealth v. Carter, 282 A.2d

375, 376 (Pa. 1971) (“It has long been the rule in Pennsylvania and in the

federal courts that consistency in a verdict in a criminal case is not

necessary.”) (citations omitted).

        We note that throughout his brief, appellant misrepresents the record.

Appellant claims that after he was pulled over, the passenger, Storm Mason

(“Mason”), told Officer Harrigan that the car was not stolen and that it

belonged to his girlfriend, Camille Sharrock (“Sharrock”). (Appellant’s brief

at 9.)    Mason told Officer Harrigan he could use his cell phone to call

Sharrock to verify this information.         (Id.)   According to appellant,

Officer Harrigan then called Sharrock and confirmed that the car was not

stolen and that Sharrock had no desire to press charges.       (Id.)   At that

point, appellant was told he was free to leave and the handcuffs were

removed. (Id. at 9, 13-14.) However, another, unidentified police officer

then arrived on the scene and told the other officers to search appellant.

(Id.)

        None of this is in the record with the exception of Officer Harrigan’s

testimony that he did call the owner of the vehicle, who was the passenger’s



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girlfriend.     (Notes   of   testimony,   1/22/13   at   12-13.)     However,

Officer Harrigan was not permitted to testify to the contents of that

conversation.    (Id.)   There is absolutely nothing in the record to support

appellant’s characterization that the car was not stolen, that the owner did

not wish to press charges, or that he was told he was free to go. 3          In

addition, as the Commonwealth points out, regardless of whether the vehicle

was actually stolen, the police had reliable information to that effect which

provided probable cause for arrest. (Commonwealth’s brief at 10.)

      Similarly, appellant claims that the receiving stolen property and

unauthorized use charges were dismissed prior to trial. (Appellant’s brief at

14.) Again, the record belies such a claim. Appellant was found not guilty

of those charges, following trial. (Notes of testimony, 1/22/13 at 34.)

      In his third issue on appeal, appellant argues that the trial court lacked

subject matter jurisdiction to hear the case. Again, the foundation for this

ill-conceived argument seems to be that the charges relating to the stolen

vehicle were dismissed prior to trial, which is not the case. (Appellant’s brief

at 20.) Obviously, the Philadelphia Court of Common Pleas had jurisdiction

to hear this matter. See Commonwealth v. Gross, 101 A.3d 28, 33 (Pa.


3
  Appellant attaches an affidavit to his brief, purportedly from Sharrock and
dated July 9, 2012. This affidavit does not appear in the certified record and
cannot be considered on appeal. See, e.g., Commonwealth v. Walker,
878 A.2d 887, 888 (Pa.Super. 2005) (“[A]s an appellate court, our review is
limited by the contents of the certified record.”). At any rate, the affidavit
does not help appellant. In it, Sharrock confirms that she reported the car
as stolen and that Mason did not have permission to take the car.


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2014) (“Jurisdiction relates to the court’s power to hear and decide the

controversy presented. [A]ll courts of common pleas have statewide subject

matter jurisdiction in cases arising under the Crimes Code.”) (citation and

quotation marks omitted).

        Finally, in his fourth assignment of error, appellant contends that his

convictions were “legally insufficient at law.”      (Appellant’s brief at 22.)

However, appellant does not present a straightforward sufficiency challenge.

Appellant does not argue that the elements of PWID were not met. Rather,

appellant bases his argument on the contention that the search and seizure

were illegal.   (Id.)   Again, appellant did not raise this issue in the court

below, and furthermore, the officers clearly had probable cause to arrest

based on information that the vehicle was reported stolen. There is no merit

here.

        Lastly, we must address the legality of appellant’s sentence. The trial

court states that 18 Pa.C.S.A. § 7508 has been held unconstitutional

pursuant to Alleyne v. United States,         U.S.     , 133 S.Ct. 2151 (2013)

(holding that facts that increase mandatory minimum sentences must be

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

             At the outset, we note that issues pertaining to
             Alleyne go directly to the legality of the sentence.
             Commonwealth v. Lawrence, 99 A.3d 116, 123
             (Pa.Super.2014). With this in mind, we begin by
             noting our well-settled standard of review.       “A
             challenge to the legality of a sentence . . . may be
             entertained as long as the reviewing court has
             jurisdiction.” Commonwealth v. Borovichka, 18


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            A.3d 1242, 1254 n. 8 (Pa.Super.2011) (citation
            omitted). It is also well-established that “[i]f no
            statutory authorization exists for a particular
            sentence, that sentence is illegal and subject to
            correction.” Commonwealth v. Rivera, 95 A.3d
            913, 915 (Pa.Super.2014) (citation omitted). “An
            illegal sentence must be vacated.” Id. “Issues
            relating to the legality of a sentence are questions of
            law [.] . . . Our standard of review over such
            questions is de novo and our scope of review is
            plenary.” Commonwealth v. Akbar, 91 A.3d 227,
            238 (Pa.Super.2014) (citations omitted).

Commonwealth v. Cardwell,               A.3d      , 2014 WL 6656644 at *1

(Pa.Super. 2014).4

      The trial court is correct that Section 7508 cannot be constitutionally

applied in light of Alleyne, resulting in an illegal sentence.        Cardwell;

Commonwealth v. Fennell,             A.3d      , 2014 WL 6505791 (Pa.Super.

2014). Therefore, it is necessary to vacate the judgment of sentence and

remand for re-sentencing, without the mandatory minimum, consistent with

this memorandum.

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

Jurisdiction relinquished.



4
  The Commonwealth notes that appellant has chosen not to brief this issue.
(Commonwealth’s brief at 4 n.3.) However, it is well established that legality of
sentencing issues are non-waivable and can even be raised by this court
sua sponte. Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super.
2001) (“So long as jurisdictional requirements are met, [a]n illegal sentence can
never be waived and may be reviewed sua sponte by this court.”) (internal
quotation marks and citations omitted); Commonwealth v. Nieves, 935 A.2d
887, 888 (Pa.Super. 2007) (a challenge to the application of a mandatory
minimum sentence implicates the legality of the sentence which is a
non-waivable issue). As such, we are compelled to address it.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2015




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