J-S69003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DARRIN BUSH

                            Appellant                   No. 1305 EDA 2013


             Appeal from the Judgment of Sentence March 15, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002918-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED DECEMBER 15, 2014

        Appellant, Darrin Bush, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions for possession of a controlled substance, possession

of a controlled substance with intent to deliver (“PWID”), possession of drug

paraphernalia, and criminal conspiracy.1        We affirm the convictions, but

vacate the judgment of sentence and remand for resentencing.

        The relevant facts and procedural history of this appeal are as follows.

           The facts of this case arise from a series of narcotic
           surveillances conducted by Philadelphia Police Officer
           Eugene Kittles in the vicinity of Cumberland and Colorado
           Streets in Philadelphia. As part of this surveillance, Officer
           Kittles directed various confidential informants (“C.I.’s”) to
____________________________________________


1
    35 P.S. § 780-113(a)(16), (30), (32), 18 Pa.C.S.A. § 903, respectively.
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       purchase narcotics with pre-recorded United States
       currency. Prior to making the purchases, each C.I. was
       searched with negative results for additional currency and
       illegal contraband. The following is a summary of Officer
       Kittles’ observations during his surveillance.

       On the afternoon of August 10, 2010, Officer Kittles
       provided a C.I. with twenty dollars in pre-recorded
       currency and directed him to 2450 North Colorado Street
       to purchase narcotics. Outside the given address, the C.I.
       came in contact with an individual later identified as
       Timare Bush (“Timare”). Following a brief conversation,
       Timare told the C.I., “Wait a minute, it’s not here. It will
       be here in a minute.” Between one and two minutes later,
       [Appellant] walked from the 2500 block of North Bouvier
       Street carrying a black plastic bag in his hand and engaged
       in a conversation with Timare. [Appellant] and Timare
       entered the 2450 North Colorado Street property, while
       the C.I. remained outside. A couple of minutes later,
       [Appellant] exited the property and walked back toward
       North Bouvier Street. Timare exited the property shortly
       thereafter, carrying a plastic bag of yellow items in his
       hand. He crossed the street to 2453 North Colorado
       Street, and the C.I. followed. Timare handed the C.I. the
       yellow items from the bag in exchange for the twenty
       dollars. Following the transaction, the C.I. turned the four
       yellow-tinted packets over to Officer Kittles. The off-white,
       chunky substance inside the packets tested positive for the
       presence of cocaine.

       The following afternoon, August 11, 2010, Officer Kittles
       was on surveillance with his partner, Officer McKellar, at
       the 2500 block of North Bouvier Street. Officer Kittles
       observed [Appellant] exit the property at 2513 North
       Bouvier Street, get into a black Buick LaCrosse, and drive
       to a variety store located at 2733 Germantown Avenue.
       [Appellant] purchased various packets that Officer Kittles
       testified were commonly used to package marijuana and
       crack cocaine. [Appellant] exited the store with a black
       bag, which he put inside the Buick’s trunk. He then
       returned to 2513 North Bouvier Street and reentered the
       property, carrying the black bag.

       Later that same day, Officer Kittles observed Appellant

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       seated on the steps at the corner of Colorado and
       Cumberland Streets. He observed a second male, later
       identified as Wayne Wiggins, at the 2400 block of Colorado
       Street. During the course of Officer Kittles’ surveillance,
       five different individuals approached Wiggins and handed
       him what appeared to be cash.          On each occasion,
       [Appellant] would then escort the individual eastbound on
       Cumberland Street toward 17th Street to the Buick.
       [Appellant] would enter the Buick from the driver’s side.
       The individuals would enter from the passenger side.
       [Appellant] would remain in the Buick with each individual
       for “a short while.” After exiting, each individual would
       leave the scene. [Appellant] would then return to the
       intersection of Cumberland and Colorado Streets. Law
       enforcement did not stop any of the individuals.

       A short time later, Officer Kittles provided a second C.I.
       with twenty dollars of pre-recorded currency and directed
       him to attempt to purchase crack cocaine from the area of
       2450 Colorado Street. The C.I. encountered Wiggins and
       walked with him over to the property at 2453 Colorado
       Street. This was the same location where Timare had
       delivered narcotics to the first C.I. one day earlier. In
       exchange for the twenty dollars, Wiggins handed the C.I.
       four yellow packets containing an off-white, chunky
       substance, which tested positive for a cocaine base. Both
       the packaging and its contents appeared to be the same
       type as the first C.I. had purchased the previous day.

       On August 17, 2010, Officer Kittles observed [Appellant]
       drive the Buick onto the 2500 block of Bouvier Street.
       When [Appellant] exited the vehicle, he was carrying what
       looked like a black backpack or gym bag. An unidentified
       male approached [Appellant] from the 2400 block of North
       Colorado Street and handed him what appeared to be a
       large amount of cash. [Appellant] placed the cash in the
       bag, which looked like it was filled with money.
       [Appellant] then made two trips between the Buick and the
       interior of the 2513 North Bouvier Street property.

       On that same day, Officer Kittles gave a third C.I. twenty
       dollars of pre-recorded currency to attempt to purchase
       crack cocaine from the area of 2450 North Colorado Street.
       The C.I. encountered Timare outside 2453 North Colorado

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       Street. In exchange for the twenty dollars, Timare handed
       the C.I. yellow packets, containing a substance testing
       positive for a cocaine base. The packets were identical in
       size, color, and shape to those delivered to the previous
       C.I.s.

       On August 20, 2010, Officer Kittles gave a fourth C.I. ten
       dollars in pre-recorded currency to attempt to purchase
       crack cocaine from the area of 2450 North Colorado Street.
       The C.I. encountered Timare and handed him the ten
       dollars in exchange for two green-tinted packets containing
       an off-white, chunky substance. The substance tested
       positive for the presence of a cocaine base.

       Based upon these observations, police executed a search
       warrant at 2513 North Bouvier Street on August 20, 2010.
       When Philadelphia Police Officer Leon McKnight entered the
       property pursuant to that warrant, [Appellant] was seated
       at a table between the living room and dining room.
       Another individual, later identified as “Armstead,” was
       seated on a couch in the living room, an arm’s length from
       [Appellant]. He was facing the front door. Both Armstead
       and [Appellant] immediately ran together toward the
       kitchen and tried to escape through the back door. Officer
       McKnight briefly pinned both men against the door, but
       [Appellant] managed to free himself and run upstairs.
       Philadelphia Police Officer Barry Charles pursued
       [Appellant] up the stairs and cornered him in the second
       floor back bedroom. [Appellant] evaded the authorities by
       jumping through the bedroom window.

       From the dining room table where [Appellant] was seated,
       law enforcement recovered twenty-five clear baggies, each
       with ten clear jars with red tops containing marijuana;
       three loose bags with bulk marijuana; four bags with ten
       black-topped jars; three red-topped jars containing
       marijuana; eight Ziploc bags containing numerous
       multicolored packets; three scales; a key to the property’s
       front door; two boxes of sandwich bags; one camera; a
       probation card bearing [Appellant’s] name; ten red-topped
       jars; and ten unused black-topped jars. Law enforcement
       recovered two baggies of loose crack cocaine from the
       kitchen table and ten clear baggies containing large chunks
       of crack cocaine from the refrigerator.        The officers

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          recovered a loaded black Kel-Tech P-11 handgun, as well
          as 524 green packets of crack cocaine, from under the
          living room couch cushion where Armstead was seated and
          just feet from where [Appellant] was seated. Finally,
          officers executed a search warrant on the Buick and
          recovered a black backpack containing $13,360.00 in cash
          and ten red-top and black-top jars matching those
          recovered from within 2513 North Bouvier Street. The
          $13,360.00 was broken down as follows: 2,155 one-dollar
          bills; 131 five-dollar bills; 245 ten-dollar bills; 370 twenty-
          dollar bills; four fifty-dollar bills; and five one hundred-
          dollar bills. Certified records from the Department of
          Transportation verified that the Buick was registered to a
          Darrin Kadeem Dozier Bush.

          [Appellant] continued to evade law enforcement for
          sixteen months.[2] A couple of days after officers executed
          the search warrant at 2513 North Bouvier Street, Officer
          Kittles contacted the probation officer identified on
          Appellant’s probation card, which had been found on the
          table between the living room and dining room. Officer
          Kittles failed to determine whether [Appellant] had any
          upcoming court dates. He explained to the probation
          officer, however, that [Appellant] was wanted for arrest
          following a narcotics investigation and asked her to hold
          [Appellant] the next time he reported. During the first
          couple of weeks after the arrest warrant was issued,
          Officer Kittles also communicated with other Philadelphia
          police officers to let them know that [Appellant] was
          wanted, in the event they came in contact with him.

          Officers Kittles and McKellar looked for [Appellant] on
          “numerous” occasions―approximately 100 times―in the
          area where they had previously conducted their
          surveillance. They would specifically go by 2513 North
          Bouvier Street, although Officer Kittles never knocked on
          the door to the property. Officer Kittles did not see
          anyone whom he recognized as [Appellant’s] acquaintance
          and he did not ask anyone on the street as to [Appellant’s]
          whereabouts.     [Appellant] was ultimately arrested on
____________________________________________


2
    The Commonwealth filed a criminal complaint on September 9, 2010.



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         December 22, 2011 on Colorado Street, one street over
         from the 2513 North Bouvier Street property.

(Trial Court Opinion, filed December 31, 13, at 3-8) (internal footnotes and

citations to the record omitted).

      On March 21, 2012, the Commonwealth filed a criminal information

charging Appellant with multiple offenses related to his drug dealing

activities. At a pretrial hearing on October 12, 2012, Appellant made an oral

motion to dismiss the charges, pursuant to Pa.R.Crim.P. 600.         Defense

counsel argued the Commonwealth did not exercise due diligence when

attempting to locate Appellant prior to his arrest. On December 14, 2012,

the court denied Rule 600 relief.

      Following a bench trial, the court convicted Appellant of possession of

a controlled substance, PWID, possession of drug paraphernalia, and

conspiracy. On March 15, 2013, the court conducted Appellant’s sentencing

hearing. For the PWID conviction, the court sentenced Appellant to five (5)

to ten (10) years’ imprisonment.      The sentence included a mandatory

minimum term, pursuant to 42 Pa.C.S.A. § 9712.1.          For the conspiracy

conviction, the court imposed a concurrent term of five (5) to ten (10) years’

imprisonment.    The court imposed no further penalty for the remaining

convictions.   Appellant timely filed a post-sentence motion on March 22,

2013, which the court denied on March 27, 2013.

      Appellant timely filed a notice of appeal on April 26, 2013. On April

29, 2013, the court ordered Appellant to file a concise statement of errors

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complained of on appeal, pursuant to Pa.R.A.P. 1925(b).           Appellant timely

filed a Rule 1925(b) statement on May 20, 2013.

        Appellant now raises two issues for our review:

          DID THE TRIAL COURT ABUSE ITS DISCRETION IN
          DENYING [APPELLANT’S] MOTION TO DISMISS UNDER
          PA.R.CRIM.P. 600, WHERE THE POLICE WERE NOT
          DILIGENT IN THEIR EFFORTS TO LOCATE AND ARREST
          [APPELLANT] AFTER THE COMPLAINT WAS FILED?

          DID THE TRIAL COURT IMPOSE THE MANDATORY
          MINIMUM SENTENCE PURSUANT TO 42 PA.C.S. § 9712.1
          IN VIOLATION OF THE UNITED STATES SUPREME COURT’S
          RECENT DECISION IN ALLEYNE V. UNITED STATES[,
          ___ U.S. ___, 133 S.CT. 2151, 186 L.ED.2D 314 (2013)]?

(Appellant’s Brief at 3).

        In his first issue, Appellant acknowledges that Officer Kittles made

some effort to determine Appellant’s whereabouts and make an arrest.

Specifically, Officer Kittles contacted Appellant’s probation officer, repeatedly

drove through Appellant’s neighborhood, and notified uniformed officers in

the area about the arrest warrant. Appellant insists, however, Officer Kittles

could    have   gone   to   Appellant’s    previous   addresses   and   questioned

Appellant’s neighbors regarding his whereabouts.            Moreover, Appellant

maintains Officer Kittles did not follow up with the probation officer, which

would have led Officer Kittles to discover that Appellant was in court for an

unrelated matter in June and July 2011. Appellant concludes Officer Kittles

did not exercise due diligence in his search for Appellant, and the court

abused its discretion in denying Appellant’s Rule 600 motion. We disagree.


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      “In evaluating Rule 600 issues, our standard of review of a trial court’s

decision is whether the trial court abused its discretion.” Commonwealth

v. Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc), appeal denied,

583 Pa. 659, 875 A.2d 1073 (2005).

         The proper scope of review…is limited to the evidence on
         the record of the Rule 600 evidentiary hearing, and the
         findings of the trial court. An appellate court must view
         the facts in the light most favorable to the prevailing party.

            Additionally, when considering the trial court’s ruling,
            this Court is not permitted to ignore the dual
            purpose behind Rule 600. Rule 600 serves two
            equally important functions: (1) the protection of the
            accused’s speedy trial rights, and (2) the protection
            of society. In determining whether an accused’s
            right to a speedy trial has been violated,
            consideration must be given to society’s right to
            effective prosecution of criminal cases, both to
            restrain those guilty of crime and to deter those
            contemplating it.     However, the administrative
            mandate of Rule 600 was not designed to insulate
            the criminally accused from good faith prosecution
            delayed through no fault of the Commonwealth.

                                  *    *    *

            So long as there has been no misconduct on the part
            of the Commonwealth in an effort to evade the
            fundamental speedy trial rights of an accused, Rule
            600 must be construed in a manner consistent with
            society’s right to punish and deter crime.

Id. at 1238-39 (internal citations and quotation marks omitted).

      Rule 600 sets forth the speedy trial requirements and provides in

pertinent part:

         Rule 600. Prompt Trial


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                                       *       *    *

              [(A)](3) Trial in a court case in which a written
          complaint is filed against the defendant, when the
          defendant is at liberty on bail, shall commence no later
          than 365 days from the date on which the complaint is
          filed.

                                       *       *    *

              (C) In determining the period for commencement of
          trial, there shall be excluded therefrom:

             (1) the period of time between the filing of the
          written complaint and the defendant’s arrest, provided that
          the defendant could not be apprehended because his or
          her whereabouts were unknown and could not be
          determined by due diligence;

             (2) any period of time for which the defendant
          expressly waives Rule 600;

             (3) such period of delay                   at   any   stage   of   the
          proceedings as results from:

                   (a) the unavailability of the defendant or the
              defendant’s attorney;

                    (b) any continuance granted at the request
              of the defendant or the defendant’s attorney.

                                       *       *    *

Pa.R.Crim.P. 600(A)(3), (C)(1)-(3).3               “Rule 600 generally requires the

Commonwealth to bring a defendant on bail to trial within 365 days of the

date the complaint was filed.” Hunt, supra at 1240. A defendant on bail

____________________________________________


3
  A new version of Rule 600 went into effect on July 1, 2013, after the trial
court disposed of Appellant’s Rule 600 motion.



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after 365 days, but before trial, may apply to the court for an order

dismissing the charges with prejudice. Id. at 1240-41. To obtain relief, a

defendant must have a valid Rule 600 claim at the time he files his motion

for relief. Id. at 1243.

      “The mechanical run date is the date by which the trial must

commence under Rule 600.” Commonwealth v. McNear, 852 A.2d 401,

406 (Pa.Super. 2004).

          It is calculated by adding 365 days (the time for
          commencing trial under Rule 600) to the date on which the
          criminal complaint is filed. The mechanical run date can
          be modified or extended by adding to the date any periods
          of time in which delay is caused by the defendant. Once
          the mechanical run date is modified accordingly, it then
          becomes an adjusted run date.

Id. (quoting Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa.Super.

2003)).

      In the context of Rule 600, “excludable time” is differentiated from

“excusable delay” as follows:

          “Excludable time” is defined in Rule 600(C) as the period
          of time between the filing of the written complaint and the
          defendant’s arrest, …any period of time for which the
          defendant expressly waives Rule 600; and/or such period
          of delay at any stage of the proceedings as results from:
          (a) the unavailability of the defendant or the defendant’s
          attorney; (b) any continuance granted at the request of
          the defendant or the defendant’s attorney. “Excusable
          delay” is not expressly defined in Rule 600, but the legal
          construct takes into account delays which occur as a result
          of circumstances beyond the Commonwealth’s control and
          despite its due diligence.

Commonwealth v. Brown, 875 A.2d 1128, 1135 (Pa.Super. 2005), appeal


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denied, 586 Pa. 734, 891 A.2d 729 (2005) (quoting Hunt, supra at 1241).

       “In determining whether the police acted with due diligence [in trying

to apprehend a defendant], a balancing process must be employed where

the court, using a common sense approach, examines the activities of the

police and balances [these] against the interest of the accused in receiving a

fair trial.”   Commonwealth v. Ingram, 591 A.2d 734, 737 (Pa.Super.

1991), appeal denied, 530 Pa. 631, 606 A.2d 901 (1992).              “The actions

must be judged by what was done, not by what was not done. In addition,

the efforts need only be reasonable; lack of due diligence should not be

found simply because other options were available or, in hindsight, would

have been more productive.” Id.

       Instantly,   the   Commonwealth     filed   the   criminal   complaint   on

September 9, 2010.        Therefore, the Rule 600 mechanical run date was

September 9, 2011.        Law enforcement, however, could not immediately

apprehend Appellant. At the Rule 600 hearing, Officer Kittles testified about

his efforts to locate Appellant.      Ultimately, police arrested Appellant on

December 22, 2011.

       Significantly, the trial court evaluated Officer Kittles’ testimony as

follows:

           Officer Kittles contacted [Appellant’s] probation officer to
           notify her of the warrant for [Appellant’s] arrest and asked
           that she hold [Appellant] if he reported to her. Familiar
           with [Appellant’s] appearance and acquaintances, Officer
           Kittles surveyed [Appellant’s] neighborhood approximately
           100     times    looking   for   [Appellant]    and/or    his

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         acquaintances.     Finally, Officer Kittles alerted other
         Philadelphia police officers to the outstanding arrest
         warrant.      Given that Officer Kittles testified that
         [Appellant’s] case was but one in his substantial case load,
         these measures demonstrated a reasonable effort on the
         Commonwealth’s part to locate and apprehend [Appellant].

         Although [Appellant] argues that the Commonwealth could
         have researched when [Appellant] may have next been in
         court, the test is not a venture into hindsight reasoning as
         to whether certain individuals had been contacted, or other
         things done, an arrest would probably have been made.

(See Trial Court Opinion at 17-18) (emphasis in original) (internal citations

and quotation marks omitted).

      Based upon the foregoing, the court found the Commonwealth had

acted with due diligence in attempting to find Appellant. We see no abuse of

discretion in the court’s decision to omit this portion of the pre-arrest time

from the Rule 600 run date calculation.      See Hunt, supra.       See also

Ingram, supra (holding Commonwealth acted with due diligence in

attempting to apprehend defendant after filing of criminal complaint; officers

tried to serve arrest warrant at defendant’s last known address, information

from defendant’s mother led officers to believe defendant had left town,

police entered “wanted” message into PCIC database, and officers went to

places where they had seen defendant in past).          The concept of due

diligence in this context does not require the Commonwealth to undertake

an all-out manhunt for every fugitive from justice; thus, the delay between

September 9, 2010 and December 22, 2011 was excusable.                   See




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Pa.R.Crim.P. 600(C)(1).     This delay yielded an adjusted run date of

December 21, 2012.

     Significantly, Appellant moved for dismissal pursuant to Rule 600 on

October 12, 2012, before the adjusted run date.   Therefore, Appellant did

not have a viable Rule 600 claim when he moved for dismissal. See Hunt,

supra.   Under these circumstances, the court properly denied Appellant’s

Rule 600 motion. Id.

     In his second issue, Appellant asserts the court imposed a mandatory

minimum sentence for his PWID conviction due to the presence of a firearm

in close proximity to the controlled substances. Appellant argues the court

expressly determined the applicability of Section 9712.1 at the sentencing

hearing by a preponderance of the evidence.     Appellant insists, however,

that any factor increasing a mandatory minimum sentence must be

determined by the factfinder beyond a reasonable doubt.          Appellant

concludes the court imposed an illegal sentence, and we must remand the

case for re-sentencing. We agree.

     We are mindful of the United States Supreme Court’s decision in

Alleyne v. United States, in which the Court expressly held that any fact

increasing the mandatory minimum sentence for a crime is considered an

element of the crime to be submitted to the fact-finder and found beyond a

reasonable doubt.   Id.   Here, the court imposed the mandatory minimum

sentence under Section 9712.1 (governing sentences for certain drug


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offenses committed with firearms) for Appellant’s PWID conviction. Section

9712.1(a) sets forth a mandatory minimum sentence of five (5) years’

imprisonment where a defendant is convicted of PWID “when at the time of

the offense the person or the person’s accomplice is in physical possession

or control of a firearm, whether visible, concealed about the person or the

person’s accomplice or within the actor’s or accomplice’s reach or in close

proximity to the controlled substance….” 42 Pa.C.S.A. § 9712.1(a). Section

9712.1(c) states that the statutory provisions shall not be an element of the

crime and applicability of the statute shall be determined by the court at

sentencing by a preponderance of the evidence. 42 Pa.C.S.A. § 9712.1(c).

       Recently, in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc), this Court addressed the constitutionality of Section 9712.1

in light of the United States Supreme Court’s decision in Alleyne, supra.4

Relying on Alleyne, Newman held that Section 9712.1 can no longer pass

constitutional muster as it “permits the trial court, as opposed to the jury, to

increase a defendant’s minimum sentence based upon a preponderance of

the evidence that the defendant was dealing drugs and possessed a firearm,

or that a firearm was in close proximity to the drugs.” Newman, supra at

98. Thus, this Court vacated Newman’s PWID sentence and remanded for
____________________________________________


4
  This Court also made clear that Alleyne is subject to limited retroactivity;
in other words, Alleyne is applicable to all criminal cases still pending on
direct review. Id. at 90. Because Newman’s case was still pending on direct
appeal, the holding in Alleyne applied to Newman’s case.



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re-sentencing without imposition of the mandatory minimum under Section

9712.1. See also Commonwealth v. Valentine, ___ A.3d ___, 2014 PA

Super 220 (filed October 3, 2014) (involving appeal of sentence arising from

jury trial; extending logic of Alleyne and Newman to Sections 9712 and

9713 and holding those sections are likewise unconstitutional insofar as they

permit automatic increase of defendant’s sentence based on preponderance

of evidence standard).

      Instantly, the court conducted a bench trial and convicted Appellant of

multiple offenses, including PWID.    At the subsequent sentencing hearing,

the Commonwealth presented a police witness, Officer McKnight, to testify

concerning the applicability of Section 9712.1.   Officer McKnight explained

that he was one of the officers executing the search warrant at 2513 North

Bouvier Street.    Officer McKnight entered the residence and observed

Appellant seated at a table in the dining room.        Officer McKnight saw

narcotics on the table. Another individual, Mr. Armstead, was sitting on a

sofa directly in front of the table. A subsequent search of the sofa yielded a

loaded firearm, which was secreted under a cushion.       After receiving the

testimony and argument from counsel, the court found by a preponderance

of the evidence that Section 9712.1 applied to Appellant’s PWID conviction.

(See N.T. Sentencing Hearing, 3/15/13, at 21-22.)         Given this Court’s

decisions in Newman and Valentine, however, we must vacate and

remand for resentencing. Accordingly, we affirm Appellant’s convictions, but


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we vacate the judgment of sentence and remand for resentencing without

imposition of a mandatory minimum sentence.5

       Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2014




____________________________________________


5
 The Commonwealth does not oppose a remand for resentencing in light of
Alleyne. (See Commonwealth’s Brief at 11-12.)



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