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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                             Appellee

                        v.

UZZIAH MURRAY,

                             Appellant                        No. 677 MDA 2014


            Appeal from the Judgment of Sentence March 26, 2014
              In the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0000189-2013


BEFORE: BOWES, PANELLA, and PLATT,* JJ.

CONCURRING MEMORANDUM BY BOWES, J.:FILED DECEMBER 18, 2014

       I join the learned majority’s disposition of Appellant’s first two claims.

As to Appellant’s sentencing challenge, I am constrained to concur in the

result based on this Court’s recent decisions in Commonwealth v.

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc), Commonwealth v.

Valentine, 2014 PA Super 220, and Commonwealth v. Fennell, 2014 PA

Super 261. I write further to note my disagreement with those decisions.

       Preliminarily,    I   acknowledge       that   I   myself,   based   on   existing

precedent, have considered an Alleyne mandatory minimum sentencing

issue as presenting a potential legality of sentence question, although this

Court found the sentence therein to be legal.                See Commonwealth v.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc).1           In Watley, we sua

sponte raised and rejected an Alleyne issue. We held that non-compliance

with Alleyne, which had not yet been decided at the time of Watley’s trial or

sentencing, was harmless and that the defendant’s sentence was not illegal.

There, the defendant was convicted by the jury of both possessing a firearm

illegally and possession with intent to deliver drugs. The firearm and drugs

were found together in the front passenger area of the car. The applicable

mandatory sentencing statute related to firearms being in close proximity to

drugs.     Relying on United States Supreme Court precedent discussing

harmless error for Apprendi violations, see United States v. Cotton, 535

U.S. 625 (2002), we held that, because the facts necessary to determine the

mandatory sentence were undisputed, overwhelming, and decided by the

jury, no Alleyne error occurred.          Compare also United States v. King,

751 F.3d 1268, 1279 (11th Cir. 2014) (Alleyne violation harmless); United
____________________________________________


1
    The Pennsylvania Supreme Court has granted allowance of appeal to
determine whether an Alleyne issue presents a non-waivable illegal
sentencing question. Commonwealth v. Johnson, 93 A.3d 806 (Pa.
2014). In Commonwealth v. Lawrence, 99 A.3d 116 (Pa.Super. 2014),
this Court held that constitutional challenges based on equal protection and
ex post facto claims, relative to a mandatory minimum statute, did not
present non-waivable illegal sentencing questions.         Furthermore, our
Supreme Court has declined to reach legality of sentence questions that
were not adequately briefed. Commonwealth v. Briggs, 12 A.3d 291, 344
(Pa. 2011) (declining to review Eighth Amendment and Article I, § 13 claims
due to inadequate briefing); see also Commonwealth v. Belak, 825 A.2d
1252, 1256 n.10 (Pa. 2003) (declining to address legality of sentence
question where issue was not included in petition for allowance of appeal or
original brief).



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States v. Harakaly, 734 F.3d 88 (1st Cir. 2013) (same); United States v.

Mack, 729 F.3d 594, (6th Cir. 2013) (same).

     Subsequently,    in   Commonwealth       v.   Munday,   78   A.3d   661

(Pa.Super. 2013), and Commonwealth v. Thompson, 93 A.3d 478

(Pa.Super. 2014), this Court concluded that an Alleyne claim was non-

waivable and meritorious where the jury did not decide the facts necessary

to impose the mandatory sentence. In Munday, Thompson, and Watley,

Alleyne had been decided after the defendants were sentenced.

     In Newman, this Court found that because mandatory minimum

sentencing challenges ordinarily present illegal sentencing questions, and

that Apprendi v. New Jersey, 530 U.S. 466 (2000) issues have been held

to implicate the legality of a sentence, the Alleyne issue in that case was a

non-waivable illegal sentencing claim. Newman involved a case where the

defendant’s trial, sentencing and original appeal were decided prior to

Alleyne. However, shortly after the original panel decision in Newman, the

United States Supreme Court handed down Alleyne, and the defendant

successfully sought re-argument.

     The Newman Court not only treated the Alleyne argument as an

illegal sentencing claim, but also reached an issue of severability that had

not been leveled below. Like Munday, and unlike Watley, the jury’s verdict

in Newman did not reveal that it found the facts needed to prompt the




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mandatory. As in Watley, the triggering facts for the mandatory sentence

related to whether a firearm was in close proximity to drugs.

     Although recognizing that an Alleyne issue could be considered under

a harmless error analysis, the Newman Court found that the failure of the

jury to expressly determine whether the gun in that case was in close

proximity to drugs precluded a harmless error finding. Thus, Newman was

distinguishable from this Court’s other recent en banc decision in Watley.

The Newman majority further declined to remand for the empaneling of a

second sentencing jury, finding that such a procedure would violate the

separation of powers doctrine.     In doing so, it ruled that the firearms

mandatory statute, 42 Pa.C.S. § 9712.1, was unconstitutional in its entirety

and not merely the section governing a court’s burden of proof. In short, it

held that the mandatory statute was not severable.

     In Valentine, supra, this Court expanded Newman to prevent the

Commonwealth from submitting to the jury facts not included as an element

of the offense but set forth in the mandatory sentencing statutes. There, in

a post-Alleyne case, the Commonwealth amended its criminal information

to include whether the defendant visibly possessed a gun and the offense

occurred in or near a place of public transportation. Without objection, the

jury was presented with specific jury interrogatories as to those facts. The

jury found each fact beyond a reasonable doubt.




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      While the defendant did not preserve at the trial level any Alleyne

challenge, despite Alleyne having been decided at the time of trial and

sentencing, (unlike Watley), the Valentine Court declared that the

defendant’s sentencing claim was not waivable based on Watley.                 It then

declined to follow Watley’s harmless error analysis in light of Newman and

ruled that Newman rendered both mandatory sentencing statutes in

question therein, 42 Pa.C.S. § 9712 and 42 Pa.C.S. § 9713, unconstitutional

in their entirety.   Without addressing that the defendant’s jury trial rights

were not infringed under Alleyne and that the court could have otherwise

lawfully imposed the sentence in question, it remanded for resentencing. In

Fennell, supra, we concluded that a sentence under the same statute at

issue herein was illegal where the defendant stipulated to the weight of the

drugs involved.

      Instantly, the trial court below, in my view, properly found the burden

of proof aspect of the applicable mandatory minimum statute severable. It is

long-standing law in this Commonwealth that, merely because a portion of a

statute   is   unconstitutional,   the    entire   statute   is   not   ipso     facto

unconstitutional.    See Rothermel v. Meyerle, 20 A. 583 (Pa. 1890).               In

Rothermel, our High Court opined,

      A statute may be void only so far as its provisions are repugnant
      to the constitution: one provision may be void, and this will not
      affect other provisions of the statute. If the part which is
      unconstitutional in its operation, is independent of, and readily
      separable from that which is constitutional, so that the latter
      may stand by itself, as the reasonable and proper expression of

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     the legislative will, it may be sustained as such; but, if the part
     which is void is vital to the whole, or the other provisions are so
     dependent upon it, and so connected with it, that it may be
     presumed the legislature would not have passed one without the
     other, the whole statute is void: Gibbons v. Ogden, 9 Wheat.
     203; City of New York v. Miln, 11 Pet. 102; Packet Co. v.
     Keokuk, 95 U.S. 80; Tiernan v. Rinker, 102 U.S. 123;
     Presser v. Illinois, 116 U.S. 252; Lea v. Bumm, 83 Pa. 237;
     In re Ruan St., 132 Pa. 257; Sedg., St. & Const. Law, 413.
     The constitutional and the unconstitutional provisions may even
     be contained in the same section of the law, and yet be perfectly
     distinct and separable, so that the former may stand though the
     latter fall: the question is, whether the several provisions are
     essentially    and      inseparably   connected    in   substance:
     Hagerstown v. Dechert, 32 Md. 369; 3 Amer. & Eng. Encyc.
     of Law, 677, and cases there cited.

Rothermel, supra at 587-588. These principles hold true even where the

statute in question does not contain a severability provision.        Rieck-

McKunkin Dairy Co. v. Milk Control Com., 18 A.2d 868 (Pa. 1941). Our

legislature codified this expression of American common law in 1 Pa.C.S.

§ 1925. That statute provides:

     The provisions of every statute shall be severable. If any
     provision of any statute or the application thereof to any person
     or circumstance is held invalid, the remainder of the statute, and
     the application of such provision to other persons or
     circumstances, shall not be affected thereby, unless the court
     finds that the valid provisions of the statute are so essentially
     and inseparably connected with, and so depend upon, the void
     provision or application, that it cannot be presumed the General
     Assembly would have enacted the remaining valid provisions
     without the void one; or unless the court finds that the
     remaining valid provisions, standing alone, are incomplete and
     incapable of being executed in accordance with the legislative
     intent.




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1 Pa.C.S. § 1925; see also Stilp v. Commonwealth, 905 A.2d 918, 970-

971 (Pa. 2006) (discussing briefly the history of the severability doctrine).

      Thus, there is a presumption that Pennsylvania legislation is severable.

“Severance is precluded only where, after the void provisions are excised,

the remainder of the statute is incapable of execution in accordance with

legislative intent.” Commonwealth v. Williams, 832 A.2d 962, 986 (Pa.

2003).   Importantly, “Section 1925 funnels our inquiry to examining what

the enacting legislature would have done had it known that the [provision in

question] was unconstitutional.” Annenberg v. Commonwealth, 757 A.2d

338, 347 (Pa. 2000).

      As our Supreme Court set forth in Stilp, “The test of severability may

be stated in simple terms as follows: After the invalid portion of the act has

been stricken out, whether that which remains is self-sustaining and is

capable of separate enforcement without regard to that portion of the

statute which has been cast aside.      If this be true the statute should be

sustained to the extent of that which remains.” Stilp, supra at 972 n.38

(quoting Rutenberg v. City of Philadelphia, 196 A. 73, 79 (Pa. 1938)).

      Reading 18 Pa.C.S. § 7508 without the burden of proof provision does

not render it wholly incapable of enforcement.      The statute remains both

coherent and self-sustaining when read in conjunction with the constitutional

jury requirements articulated in Alleyne.     For example, in Watley, it was

clear that the jury determined beyond a reasonable doubt the facts

necessary to impose the mandatory sentence.         Hence, no jury trial right

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issues were involved, nor was the sentence unconstitutionally increased.

Similarly, in Commonwealth v. Matteson, 96 A.3d 1064 (Pa.Super. 2014),

the jury verdict included the facts needed to impose the mandatory

minimum sentence. Today, the legislature could readily reenact mandatory

minimum statutes absent the burden of proof provisions and without

specifying a new burden of proof procedure and there would be no

constitutional impediment to their enforcement.

      In my view, the Newman Court asked the wrong question in

conducting its severability analysis.   Specifically, it looked to whether the

General Assembly intended to have a jury decide the sentencing factors that

triggered the mandatory sentence.       See id. at 102 (“the legislature also

intended those penalties to be imposed according to a very specific

procedure—the issue of firearm possession must be decided by the judge, at

sentencing, by a preponderance of the evidence.”).        The proper query,

however, is what the legislature would have done had it known that a judge

could not decide such facts by a preponderance of the evidence standard.

See Annenberg, supra at 347; see also United States v. Booker, 543

U.S. 220, 246 (2005).

      I simply cannot agree that the legislature would not have enacted a

statute to mandatorily increase punishment based on the sale of drugs of a

certain weight because a judge could not determine the facts by a

preponderance standard.     Had the legislature known this burden of proof

was unconstitutional, it is more likely that it would have substituted the

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constitutional standard in its place. The overriding concern of the legislature

was to increase punishment for drug offenses and decrease judicial

sentencing discretion. The mandatory minimum statute did not exist for the

sole purpose of allowing judges to determine facts by a preponderance

standard. Where the purpose of a statute is “to accomplish several distinct

objects, and these can be severed, so that one may fall and the others

stand, only the part which infringes the constitution will be declared

invalid[.]”   Thomas Raeburn White, Commentaries on the Constitution of

Pennsylvania, at 29 (1907) (collecting cases).

       Therefore, I believe the procedure adopted by the trial court in

Valentine, which was ultimately rejected by this Court based on Newman,

was entirely proper. Submitting to the jury the facts essential to invoke the

mandatory is consistent with federal practice following the earlier Apprendi

v. New Jersey, 530 U.S. 466 (2000) decision, and provides an easy and

manageable constitutional method to follow.       Further, I strongly disagree

that such procedures result in courts re-writing the mandatory statute.        I

acknowledge that “a court is empowered merely to strike existing language;

the judiciary is given no authority to draft its own language and insert it into

the statute or ordinance.”     Pap's A.M. v. City of Erie, 719 A.2d 273,

281 (Pa. 1998), reversed on other grounds sub nom. City of Erie v. Pap's

A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). However, to

the extent that Newman and the trial court opinions upon which it relied




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assert that such a procedure violates the separation of powers, I believe

they have misconstrued that doctrine.

       The separation of powers doctrine provides that “the executive,
       the legislature and the judiciary are independent, co-equal
       branches of government.” Beckert v. Warren, 497 Pa. 137,
       439 A.2d 638, 642 (Pa. 1981). The dividing lines among the
       three branches “are sometimes indistinct and are probably
       incapable of any precise definition.” Stander v. Kelly, 433 Pa.
       406, 250 A.2d 474, 482 (Pa. 1969) (plurality). “Under the
       principle of separation of the powers of government, . . . no
       branch should exercise the functions exclusively committed to
       another branch.” Sweeney v. Tucker, 473 Pa. 493, 375 A.2d
       698, 706 (Pa. 1977).

Commonwealth v. Melvin, 2014 PA Super 181, *5.

       It has been written that “[w]hen the legislative and executive powers

are united in the same person, or in the same body of magistrates, there

can be no liberty[.]”     John Adams, A Defence of the Constitutions of

Government of the United States of America, Vol. I, at 153 (3rd Ed.

Philadelphia, 1797).    Writing further, Adams eloquently set forth, “Again,

there is no liberty, if the power of judging be not separated from the

legislative and executive powers: were it joined with the legislative, the life

and liberty of the citizens would be exposed to arbitrary control[.]” Id. at

154.

       However, the act of following Alleyne by requiring a jury to determine

the facts necessary to trigger a statutory mandatory sentence in no way is a

legislative act by either prosecutors or the courts. Instead, we are excising

the burden of proof section and enforcing the constitutional pronouncement

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of Alleyne. This is not legislating, but enforcing constitutional rights based

on existing binding precedent.       Indeed, this procedure bears a strong

resemblance to our procedure pertaining to certain other criminal offenses.

For example, our theft statutes do not discuss a burden of proof, but the

amount of money stolen aggravates the crime.            The jury must therefore

determine the amount taken in rendering its verdict. We do not require the

statute to delineate that the jury must unanimously determine these facts

beyond   a   reasonable   doubt.     This     is   merely   presumed   based   on

constitutional law. Admittedly, in these situations the elements are included

in the underlying offense, but, as the United States Supreme Court has

repeatedly opined, it matters not what label a fact is given, whether it be an

element or sentencing factor.      See Apprendi, supra; Booker, supra at

242; Alleyne, supra.

      To engraft on a statute a “beyond a reasonable doubt burden of proof”

based on a United States Supreme Court decision is no more legislating than

requiring the Commonwealth to prove the age of a victim or the amount of

money stolen beyond a reasonable doubt.                The proper question, as

mentioned earlier, is: had the legislature known when it passed the

mandatory sentencing provision that the burden of proof provision was void,

how would it have exercised its power to define sentencing practices?          Cf.

Annenberg, supra at 347 (rejecting contention that Supreme Court’s

severing of a statute would violate the separation of powers by arrogating to


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itself the power to tax and stating, “When this Court severs a void provision

from a statute, it is doing so to attempt to effectuate legislative intent. We

are therefore not arrogating to ourselves the power to tax but rather are

attempting to determine how the legislature would have exercised its taxing

power had it known, in 1889, that the exclusion was void.”).

      Pointedly, certain Pennsylvania mandatory statutes, as applied, are

unaffected by Alleyne despite their burden of proof provisions running afoul

of that decision.   For example, 42 Pa.C.S. § 9718 applies mandatory

sentences based on the youth of the victim. In certain instances, however,

the age of the victim is already included as an element of the crime,

specifically with regard to various sex offenses.   In those situations, there

should be no impediment to sentencing the defendant under the mandatory

sentence. See Matteson, supra.

      Further, I add that 42 Pa.C.S. § 9717, a mandatory minimum statute,

which applies to crimes committed against the elderly, includes no burden of

proof provision. Relying on the no longer constitutionally-sound decision in

McMillan v. Pennsylvania, 477 U.S. 79 (1986), this Court applied a

preponderance of the evidence standard at sentencing. Commonwealth v.

Rizzo, 523 A.2d 809 (Pa.Super. 1987). Based on the decision in Alleyne,

that holding is invalid and the Alleyne decision provides the proper mode

for imposing that mandatory minimum sentence. The entire Crimes Code is

devoid of providing a burden of proof for any element of a crime. Rather, no


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such burden of proof is required to be delineated based on well-ensconced

constitutional principles.   Consistent with Judge Mundy’s view in her

concurring opinion in Newman, I believe that “pre-existing procedures and

Alleyne specify that the burden of proof shall be beyond a reasonable doubt

and it shall be submitted to the jury.” Newman, supra at 106 (Mundy, J.,

concurring).

      In this respect, the trial court opinions relied on by the Newman

Court are similarly unpersuasive and misplaced precisely because the default

method of resolving disputed questions of fact is for the jury, even absent a

legislative directive. Frankly, the United States Supreme Court has judicially

directed the manner in which mandatory minimum sentences are to be

decided: via a jury determination of the facts included in those mandatory

sentences.

      Our United States Supreme Court’s decision in Booker is illustrative.

Booker involved an Apprendi challenge to the federal sentencing guidelines

and resulted in two separate majority opinions.    The first majority opinion

declared that the then-mandatory federal sentencing guidelines were

unconstitutional to the extent they permitted a judge to increase a

defendant’s maximum sentence based on facts the court decided by a

preponderance of the evidence.     The second majority opinion (hereinafter

the “remedial opinion”) concluded that the proper remedy was not to strike




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the guidelines in their entirety, but to sever those provisions that made the

guidelines mandatory.

      Therein, Booker was charged with possession with intent to distribute

fifty grams of crack cocaine.    The jury heard evidence that he had 92.5

grams of crack cocaine when arrested. At sentencing, however, the judge

determined that Booker possessed an additional 566 grams of crack cocaine.

This finding resulted in an almost ten-year increase in the sentence Booker

would have received under the guidelines based solely on the jury verdict.

Consistent with its earlier Apprendi and Blakely v. Washington, 542 U.S.

296 (2004) decisions, the United States Supreme Court concluded that

Booker’s jury trial rights were infringed and that “any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Booker, supra at 244.

      In doing so, the Court rejected the government’s position that

requiring a jury to determine the sentencing factors beyond a reasonable

doubt would violate the separation of powers doctrine by unconstitutionally

granting the Federal Sentencing Commission, which promulgated the

guidelines, the legislative power to define criminal elements.       The Court

maintained that the argument was without merit because “the impact of




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such facts on federal sentences is precisely the same whether one labels

such facts ‘sentencing factors’ or ‘elements’ of crimes.” Id. at 242.

      The remedial opinion in Booker severed the provisions of the Act in

question that made it mandatory. The remedial justices maintained that the

Act, as written, with jury fact-finding added, was preferable to total

invalidation of the statute, but that the legislature would have preferred its

proffered remedy.    In creating its remedy, the remedial majority opined,

“We seek to determine what ‘Congress would have intended’ in light of the

Court’s constitutional holding.”    Id. at 246.     This statement is wholly

consistent with the Pennsylvania Supreme Court’s approach in Annenberg,

supra, and with long-standing severability jurisprudence.

      The remedial Booker opinion observed that requiring juries to

determine the facts necessary to impose the increased guideline sentences

“would create a system far more complex than Congress could have

intended.”    Id. at 254.    Accordingly, it chose to make the mandatory

guidelines advisory only.     The dissenting opinions from that remedial

opinion, however, cogently recognized that the remedial majority was not

excising unconstitutional provisions of the law in question.

      As in the federal system, the vast majority of criminal proceedings are

the result of plea bargains. Where a defendant admits to the facts needed

to trigger a mandatory sentence, there are no constitutional problems. As

Justice Stevens pointed out in his dissent to the remedial Booker opinion, in


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the      event   that   a    trial   occurs,     “prosecutors    could   avoid   an

Apprendi . . . problem simply by alleging in the indictment the facts

necessary to reach the chosen Guidelines sentence.” Booker, supra at 277

(Stevens, J., dissenting).     Instantly, absent the holdings in Newman and

Valentine, prosecutors could avoid Alleyne issues by including in the

criminal information the facts required to reach the mandatory sentence at

issue.     In this regard, Justice Stevens noted at that time that the

Department of Justice was advising federal prosecutors to charge and prove

facts that increased statutory maximums for drug types and quantities. He

accurately recognized that “[e]nhancing the specificity of indictments would

be a simple matter[.]”       Id.     In Pennsylvania, the same result could be

achieved by prosecutors and judges following the procedure that occurred

and was reversed in Valentine, that is, including the facts in the criminal

information and submitting the question to the jury.

         Rather than engage in a wholesale striking down of our mandatory

sentencing statutes, I would allow prosecutors to prove any fact required to

subject the defendant to a mandatory sentence to the jury beyond a

reasonable doubt.       Indeed, this procedure has been adopted by the

Commonwealth       regarding     Apprendi      issues,   see    Commonwealth     v.

Mobley, 14 A.3d 887 (Pa.Super. 2011), and has never been held to violate

the separation of powers doctrine. In the event that the defendant elects to

proceed non-jury, the trial judge would be charged with finding the essential


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facts beyond a reasonable doubt.      Furthermore, where the fact-finder’s

findings already encompass the necessary facts needed to subject a

defendant to a mandatory minimum sentence, or the facts have been

stipulated too, I would find any non-compliance with Alleyne to be

harmless. See Watley, supra; Matteson, supra.

     I believe the Newman Court and the trial court opinions it discussed

misperceived the legislative intent analysis pertaining to the severability

doctrine and did not consider what the legislature would have intended had

it known that the burden of proof provisions of its mandatory statutes were

unconstitutional. However, because Newman is binding on this panel, as is

Valentine, I am constrained to concur in the result.




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