J-A33005-14


                                   2015 PA Super 88

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DONTE MOSLEY

                            Appellant                    No. 827 EDA 2014


             Appeal from the Judgment Entered February 24, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0007437-2012


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

OPINION BY LAZARUS, J.:                                  FILED APRIL 20, 2015

        Donte Mosley appeals from his judgment of sentence, entered in the

Court of Common Pleas of Delaware County, after being convicted by a jury

of three counts of possession of a controlled substance1 and one count of

possession with the intent to deliver a controlled substance (cocaine).2 The

Commonwealth sought, and the sentencing court applied, the mandatory

minimum sentence of five years’ imprisonment pursuant to 18 Pa.C.S. §

7508 (drug trafficking sentencing/penalties).         Mosley was sentenced to a

term of 66-132 months’ imprisonment for the intent to deliver charge, an

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16).
2
    35 P.S. § 780-113(a)(30).
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aggravated-range sentence.3            After careful review, we affirm Mosley’s

convictions, vacate his judgment of sentence and remand for resentencing.

       On August 13, 2012, at approximately 2:00 p.m., Ridley Township

Police Officer Leo Doyle was on patrol in the Secane area in response to a

complaint about illegal drug activity at the Presidential Square Apartments

on South Avenue. James Latticlaw, the complainant, had told the police that

squatters were selling drugs out of his apartment.        Sergeant Charles Palo

and Corporal Daniel Smith, also members of the Ridley Township Police

Department, accompanied Officer Doyle to the Secane address in a separate

police vehicle.     When the two police vehicles arrived at the apartment

complex, the police observed a black Cadillac driving towards them and saw

Latticlaw pointing toward the Cadillac.

       After seeing Latticlaw gesture toward the Cadillac, both police vehicles

followed the car as it pulled out of the parking lot. While only a few feet

behind the Cadillac, Officer Doyle saw Mosley, the driver of the Cadillac, put

his arm out of the driver’s side window and drop two clear plastic bags.4

Corporal Smith picked up the two bags while Officer Doyle activated his siren

and police lights and pulled the Cadillac over.        Corporal Smith contacted
____________________________________________


3
  The possession charges merged, for sentencing purposes, with the intent
to deliver charge.
4
 Each bag was knotted at the top. One bag contained five bags (baggies) of
a white powdery substance. N.T. Trial Testimony, 9/16/13, at 177. The
other bag contained three bags (baggies) of suspected heroin. Id.



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Officer Doyle to tell him the baggies contained narcotics.5             Doyle arrested

Mosley and, in a search incident to arrest, recovered two cellular phones and

$117.00 in cash from his person. Affidavit of Probable Cause, 8/13/12, at 1.

No drugs or drug paraphernalia were found on the passenger in the Cadillac.

        Prior to trial, Mosley filed a motion to suppress text messages that

were viewed by a police officer on the two cell phones6 confiscated from him

during the search incident to his arrest. Ridley Township Police Officer John

McDevitt testified that as Mosley was being processed at the police station

on the instant charges, the officer viewed texts that kept “popping up” on

the screens of the mobile phones.              Officer McDevitt first testified that the

phones were already powered on and they required no password or other

manipulation (like “swiping”) to view the texts.            However, the officer later

testified that he was unable to recall whether he had to swipe anything to

view the text messages.

        Mosley filed a pretrial motion to suppress the search of the two cell

phones and the numerous text messages found on them, basing his

arguments on authentication and hearsay grounds.                Mosley filed a second
____________________________________________


5
  The parties stipulated that the Pennsylvania State Police Crime Lab
evaluated the substances found in the two plastic bags discarded from the
Cadillac and determined the interior baggies contained 10.5 grams of
cocaine, 0.64 grams of heroin, and 6 oxycontin pills. The baggies of heroin
had the words “crazy horse” written on them.
6
    One cell phone was a Samsung and the other phone was an HTC.




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motion seeking to suppress all data obtained as a result of a subsequent

search warrant for the phones.          After the suppression hearing, but before

the court rendered a decision, Mosley filed a motion to open the hearing in

order to present testimony to prove that the texts could not have been

viewed by the police unless they took some affirmative action to read them.

On April 22, 2013, all pretrial motions were denied.

       On September 16-17, 2013, a jury trial was held. At trial, Sergeant

Kenneth Rutherford, an expert in the field of drugs and drug investigations,

testified for the Commonwealth.                Officer Doyle had contacted Sgt.

Rutherford about the instant case, gave him basic information about the

arrest (including what was confiscated at the stop) and asked the sergeant

to prepare a search warrant.           In response, Sgt. Rutherford prepared an

application for a search warrant,7 specifically requesting that the contents of

the cell phones found on Mosley be searched. Text messages from both cell

____________________________________________


7
  The search warrant identified the following items to be searched and
seized:

       Any and all text messages (incoming and outgoing), email
       messages (incoming and outgoing), photographs, contacts and
       other forms of electronic communication. Any items used to
       keep drug transaction records (spreadsheets etc.). Any and all
       secondary cell phone applications (and its contents) which are
       capable of sending receiving voice calls, text messages, and
       emails. Any and all other contraband.

Application for Search Warrant and Authorization, 2/28/13, at 1, 4.




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phones revealed personal messages received by Mosley from friends and

family.     Several other text messages were indicative of drug related

sales/activity. The cell phone report records were marked and admitted into

evidence at trial. The trial court gave the jury a limiting instruction on the

text messages.8

        At the conclusion of trial, Mosley was found guilty of possession of a

controlled substance (oxycodone), possession of a controlled substance

(heroin), possession of a controlled substance (cocaine), and possession

with    intent   to   deliver.    Mosley was     sentenced   to   66-132   months’

imprisonment, followed by 5 years of state probation.             Mosley filed an



____________________________________________


8
    The trial judge gave the following limiting instruction as to text messages:

        This evidence is before you for a limited purpose and it is for the
        purpose of tending to show the Defendant is fluent in the
        language used by those persons who deal in illegal drug
        transactions. This evidence must not be construed by you or
        considered by you in any way other than for the purpose I just
        stated. You must not regard this evidence as showing that the
        Defendant is a person of bad character or criminal tendencies
        from which you might include – be inclined to infer guilt. The
        Defendant contends that he is not the transmitter or receiver of
        the text messages. However, you may consider circumstantial
        evidence in evaluating this issue and provide whatever weight
        you deem appropriate thereto.

N.T. Jury Trial, 9/17/13, at 165 (emphasis added).




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unsuccessful motion in arrest of judgment and/or for a new trial.             This

appeal follows.

        On appeal, Mosley raises the following issues for our consideration:9

        (1)   Did the lower court err in admitting the hearsay
              statements testified to by Officer Leo Doyle regarding a
              telephone call he received as well as a statement made at
              the scene?

        (2)   Did the lower court err in allowing evidence of text
              messages despite the fact that said messages were not
              properly authenticated, but were also hearsay?

        (3)   Did the lower court err in failing to suppress evidence of
              text messages taken from the cellphones by the arresting
              officers?

        (4)   Did the lower court err in failing to suppress the
              information and/or text messages taken from the above
              cellphones as a result of a search warrant since said
              evidence was the “fruit of the poisonous tree”?

        (5)   Did the lower court err in failing to suppress the said text
              messages taken pursuant to a search warrant from the cell
              phones found on the person of the Appellant as a violation
              of the United States Constitution, Amendments 4 and 14[,]
              and the Pennsylvania Constitution, Article 1, Section 8[,]
              for failure to link the items requested to be searched with
              the alleged crime committed?

        (6)   Did the lower court err in finding that there was sufficient
              evidence to uphold the verdict and also err in finding that
              the verdict was not against the weight of the evidence?

        (7)   Did the lower court err in failing to reopen the suppression
              hearing to allow Appellant to introduce evidence
              contradicting the police officers concerning their reading of
              the text messages?

____________________________________________


9
    We have consolidated our review of issues 2-5, as they are intertwined.



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      (8)     Was sentencing the Appellant to a five year mandatory
              minimum sentence pursuant to 18 Pa.C.S. [§]7508 illegal
              because the statute was unconstitutional? Admission of
              Officer Doyle’s Statements

      Mosley asserts that the trial court erred in admitting hearsay evidence

regarding “drug activity” offered by Commonwealth witness, Officer Leo

Doyle.      Officer Doyle was the first officer to appear at the scene to

investigate Latticlaw’s complaint, which led to him following, stopping and

arresting Mosley.    Mosley claims that this hearsay testimony was highly

prejudicial because it negated his defense (that the passenger in the vehicle

was the one who controlled the drugs and not him). Mosley also contends

that admission of the testimony was reversible error as evidence of his guilt

was not overwhelming.

         While certain out-of-court statements offered to explain a course of

police conduct are admissible because they are offered merely to show the

information upon which police acted, some out-of-court statements bearing

upon police conduct are inadmissible because they may be considered by the

jury as substantive evidence of guilt, especially where the accused’s right to

cross-examine and confront witnesses against him would be nullified.

Commonwealth v. Palsa, 555 A.2d 808, 810 (Pa. 1989).

      Mosley’s arresting officer, Officer Leo Doyle, testified at trial regarding

a phone call he received from James Latticlaw, who indicated that Mosley

and a third party were “squatters” selling drugs out of Latticlaw’s apartment.

Officer Doyle also testified that when he arrived at the apartment complex to



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investigate the matter, Latticlaw pointed at the black Cadillac driven by

Mosley, indicating to Officer Doyle that the occupants were the two men who

had been involved in drug activity at his apartment. Specifically, the

prosecutor questioned Officer Doyle at trial as follows:

      Q: What area did they make a complaint? A specific type of
      crime or of a specific incident that happened in a certain place?

      A: Yes.

      Q: What – what was that?

      A: Drug activity.

      Q: Drug activity. And what location?

      A: At the 640 South. I forget the exact apartment, but James
      Latticelaw[sic]’s apartment in 640 South Avenue, Presidential
      Square.

                                    *     *   *

      A: I was – the van was in front of me with Sergeant Paylow and
      Corporal Smith and I was behind the van and the black Cadillac
      was coming towards me occupied by two black males. Okay.
      And I also then observed James Latticelaw [sic], who I know
      from running that area and having calls, pointing at the car
      making a motion that that’s the car that was – that had the two
      occupants in it that were why we were there.

N.T. Jury Trial, 9/16/13, at 122-24.

      The trial court justified its decision to admit Officer Doyle’s testimony

as follows:

      This [c]ourt properly admitted the statements, as they were
      introduced by the prosecution to show why Officer Doyle went to
      the Presidential Apartments and why his attention was drawn to
      the black Cadillac, not to prove the truth of the matter asserted.



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Trial Court Opinion, 5/15/14, at 6.

      In Commonwealth v. Yates, 613 A.2d 542 (Pa. 1992), the defendant

was convicted of possession and possession with the intent to deliver.    At

trial, two officers testified why they went to the specific area where the

defendant was arrested.     In their testimony, the officers stated “that an

informant had notified them that a large black male, i.e. [defendant], was

‘dealing drugs’ at that location.” Id. at 543. The trial court admitted the

testimony, reasoning that the testimony explained the course of police

conduct and that, without the testimony, the jury would not have any way of

knowing why the police went to that location. Even though the trial court

gave the jury a cautionary instruction, the Supreme Court reversed the

defendant’s conviction and granted a new trial since the informant’s

statements were of a highly incriminating nature, contained specific

assertions of criminal conduct, and would have the unavoidable effect of

prejudice. Id.

      Similarly, Mosely was charged and convicted of possession and

possession with the intent to deliver. Therefore, Officer Doyle’s statement

that he responded to Latticlaw’s apartment complex in response to a

complaint that defendant was conducting “drug activity” would likewise

unavoidably “have had a prejudicial impact.” Id. Moreover, unlike the trial

court in Yates, here the judge did not give the jury a cautionary instruction

despite the defense’s objections to the police officer’s alleged hearsay

statements. Where Officer Doyle’s testimony contained specific assertions of

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criminal conduct, it was likely that the jury would interpret this testimony

from a police officer as substantive evidence of Mosley’s guilt; it also

deprived Mosley of his right to confront and cross-examine Latticlaw at trial.

Cf. Commonwealth v. Taggart, 997 A.2d 1189 (Pa. Super. 2010) (where

officer testified that defendant fit description of robber, and prosecutor cut

him off and elicited testimony that defendant was not one of robbers

described in flash information, defendant not deprived of opportunity to

confront informant who provided information in flash report).

      However, “not all error at trial . . . entitles a [defendant] to a new

trial, and [t]he harmless error doctrine . . . reflects the reality that the

accused is entitled to a fair trial, not a perfect trial[.]” Commonwealth v.

West, 834 A.2d 625, 634 (Pa. Super. 2003).             Moreover, it is well

established that “an error which, when viewed by itself, is not minimal, may

nonetheless be determined harmless if properly admitted evidence is

substantially   similar   to    the      erroneously   admitted    evidence.”

Commonwealth v. Story, 383 A.2d 155, 165 (Pa. 1978).

      Because there is relevant, cumulative evidence indicative of drug

activity, we find that the admission of this out-of-court statement, while an

abuse of the trial court’s discretion, was harmless error.   Here, there was

independent evidence showing that Mosley threw bags of drugs from a car

he was driving, while being pursued by the police. Mosley’s possession of

two cell phones and U.S. currency on his person was consistent with drug

activity, while the weight and packaging of the drugs was indicative of

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possession with the intent to deliver. See Commonwealth v. Watson, 945

A.2d 174 (Pa. Super. 2008) (harmless error exists where erroneously

admitted evidence was merely cumulative of other untainted evidence which

was substantially similar to erroneously admitted evidence); see also

Commonwealth v. Williams (erroneous admission of evidence does not

necessarily entitle defendant to relief if error is harmless).

Failure to Suppress Text Messages

       Mosley contends that Officers McDevitt and Doyle should have secured

a search warrant before reading the text messages on the cell phones.

Recently, in Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. 2014), our

Court addressed this issue, relying upon the legal analysis and holding of the

United States Supreme Court in Riley v. Calfornia, 134 S. Ct. 2473 (2014).

In Riley, the Supreme Court determined that warrantless searches of a

cellular   telephone     conducted      incident   to   a   defendant’s   arrest   are

unconstitutional. Id. at 2495.

       Here, there is no question that Officer McDevitt viewed the text

messages on the cell phones without first securing a warrant. The record is

unclear,10 however, regarding whether Officer McDevitt actually “searched”
____________________________________________


10
   Compare N.T. Suppression Hearing, 4/18/13 (McDevitt testifying that he
did not click on any icon to view messages, but that they just “were popping
up ... coming up on the screen”) and id. at 83-84 (McDevitt testifying that
he did not have to do anything to view the messages on the cell phone)
with id. at 84 (McDevitt testifying that he didn’t recall whether he had to
swipe anything to view the text messages)



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the phones (i.e., by scrolling through messages, swiping the phone on, or

otherwise pulling up the texts) like in Stem, where a police officer inspected

the cell phone after the defendant’s arrest, turned on the phone, hit the

picture icon and then searched cell phone data.      Stem, 96 A.2d at 408.

However, even if Officer McDevitt improperly searched and viewed text

messages on the cell phones confiscated incident to Mosley’s arrest, we find

that because a valid warrant was subsequently issued to search the phones,

any improper viewing by Officer McDevitt was harmless error.

      Our Supreme Court has held that “where there is probable cause

independent of police misconduct that is sufficient in itself to support the

issuance of a warrant, the police should not be placed in a worse situation

than they would have been absent the error or violation under which the

evidence was seized.”    Commonwealth v. Brundidge, 620 A.2d 1115,

1119-20 (Pa. 1993).

      There is a two-prong test governing the application of the
      independent source doctrine: (1) whether the decision to seek a
      warrant was prompted by what was seen during the initial
      warrantless entry; and, (2) whether the magistrate was
      informed at all of the information improperly obtained.

Commonwealth v. Ruey, 854 A.2d 560, 564-65 (Pa. Super. 2004).

      Here, Sgt. Rutherford, who prepared the warrant, testified at the

suppression hearing that he never spoke with Officer McDevitt prior to or

during the process of securing the search warrant for the cellphones.

Moreover, while Sgt. Rutherford did speak with Mosley’s arresting officer,

Officer Doyle, who was aware of the content of the text messages and who

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asked Sgt. Rutherford to prepare the warrant, the record shows that Officer

Doyle did not discuss the content of the text messages with Sgt. Rutherford.

N.T. Suppression Hearing, at 4/18/13, at 11-12, 56.      Accordingly, we find

that there was probable cause independent of any alleged misconduct on the

part of Officer McDevitt in viewing the text messages prior to the issuance of

a warrant.        This probable cause is sufficient in itself to support the

subsequent warrant secured by Sgt. Rutherford. Ruey, supra.

Admission of Text Messages at Trial

      Authentication/Authorship

      Mosley next asserts that the trial court improperly permitted testimony

at trial regarding text messages from the two cellphones taken from his

person, incident to his arrest, where the messages had never been

authenticated and constituted inadmissible hearsay.

      Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.     Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super.

1999).   Generally, the requirement of authentication or identification as a

condition precedent to the admissibility of evidence is satisfied by evidence

sufficient to support a finding that the matter in question is what its

proponent claims. Pa.R.E. 901(a).

      With regard to “the admissibility of electronic communication, such

messages are to be evaluated on a case-by-case basis as any other

document to determine whether or not there has been an adequate

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foundational showing of their relevance and authenticity.” In the Interest

of F.P., 878 A.2d 91, 96 (Pa. Super. 2005). “[A]uthentication of electronic

communications, like documents, requires more than mere confirmation that

the number or address belonged to a particular person. Circumstantial

evidence, which tends to corroborate the identity of the sender, is required.”

Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) (Koch).

       In Commonwealth v. Koch, 106 A.3d 705 (Pa. 2014) (Koch II), an

equally divided Supreme Court11 affirmed our Court’s grant of a new trial,

wherein we held that:         (1) the defendant’s text messages had not been

authenticated; (2) the messages were inadmissible hearsay that were not

offered for any reason other than to show the truth of the matter asserted

as to the content of the messages; and (3) admission of the unauthenticated

hearsay messages was not harmless error because the prejudicial effect of

the evidence was “so pervasive in tending to show that [defendant] took an

active role in an illicit [drug selling] enterprise that it [could not] be deemed

harmless.” Koch, 39 A.3d at 1005-07.

       While the defendant in Koch admitted to owning the cell phone, and

the content of the messages on the phone indicated drug sale activity, it was

also conceded at trial that someone other than the defendant likely authored


____________________________________________


11
   When a judgment of sentence is affirmed by an equally divided court, as
in the Koch case, no precedent is established and the holding is not binding
on other cases. Commonwealth v. James, 427 A.2d 148 (Pa. 1981).



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at least some of the text messages.            Even so, the mere assertion of

ownership of the phone did not establish that defendant was an active

correspondent in the particular drug sales text messages.            Id. at 1003.

Moreover, confirmation that the number or address belongs to a particular

person also did not satisfy the authentication requirement under the Rules of

Evidence. Id. at 1005. Ultimately, the Court found that the Commonwealth

failed to establish, either by direct or circumstantial evidence, whether

defendant was the author of the texts. Id.

      However, the Koch Court, referencing Rule 901, explained the ways in

which text messages could be authenticated by using:                (1) first-hand

corroborating testimony from either the author or the sender; and/or (2)

circumstantial    evidence,   which   includes   distinctive   characteristics   like

information specifying the author-sender, reference to or correspondence

with relevant events preceding or following the communication in question;

or (3) any other facts or aspects of the communication that signify it to be

what its proponent claims it to be. Id. at 1002. Ultimately, the Court found

that the trial court abused its discretion in admitting the text messages

where the cell phone’s physical proximity to the defendant at the time of her

arrest had no probative value with regard to whether she authored the

messages.        Id. at 1005.     Finally, because there was no evidence

substantiating that defendant had written the drug-related text messages, it

was improper to find that the identity of the sender had been corroborated.

Id.

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      As the Court in Koch acknowledged, the authentication inquiry will, by

necessity, “be evaluated on a case-by-case basis as any other document to

determine whether there has been an adequate foundation showing of its

relevance and authenticity.”     Id. at 1003 (citation omitted).       Instantly,

Mosley denied that he owned the two cell phones that were confiscated from

his person incident to his arrest.        Moreover, there was no first-hand

corroborating testimony from a witness regarding the authenticity of the text

messages. Pa.R.E. 901(b)(1). In addition, there were two email addresses

attached to the cell phones, which could indicate that someone else had

access to or owned the phones. Finally, while several of the text messages

could be interpreted as indicative of drug dealing, none of the specific drug-

related communications identified Mosley.        In fact, Donte (Mosley’s first

name) is only referenced in a few text messages dated months prior to the

instant investigation.   None of the text messages sent from the Samsung

phone concerned drugs and there were no drug-related text messages sent

from the phones around the time of Mosley’s arrest.

      Unlike the defendant in Koch, who had been charged as both an

accomplice and a conspirator, here Mosley was charged with purely

possessory offenses, including with the intent to deliver.        Therefore, the

authorship of the texts is more critical to an authentication analysis under

the facts of this specific case. The fact that that the trial court failed to give

an authentication instruction to the jury further compounds the effect that

the issue of authorship has on the case. Here, the court generally instructed

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the jury with regard to circumstantial evidence and the weight to be

accorded it in terms of evaluating whether Mosley was the transmitter or

receiver of the messages.12 However, the court did not instruct the jury that

in order to prove authentication, circumstantial evidence which tends to

corroborate the identity of the sender is required.

        Instantly, the trial court found that the Commonwealth authenticated

the messages based on the following facts:         (1) similar contacts in both

phones; (2) Donte Mosley’s mother (“Momma Dooks”) as a contact on both

phones; (3) mother of Mosley’s child texting similar messages on both

phones; (4) prior incoming texts referencing “Donte”.          N.T. Jury Trial,

4/18/13, at 93.       While these facts may support authentication, the court

does not take into account the fact that the texts referencing “Donte”

occurred more than one week prior to the current incident and that the texts

from Momma Dooks were sent in April, June and July of 2012 – weeks to

____________________________________________



12
     Interestingly, the trial court stated:

        In light of the testimony that’s been presented[,] I’m going to
        say the authentication of electronic communications-like
        documents, requires more than mere confirmation that the
        number address belonged to a particular person. Circumstantial
        evidence which tends to corroborate the identity of the sender is
        required. I’m going to give that instruction.

N.T. Jury Trial, 9/17/13, at 101. Despite this statement, the court never
gave an instruction specifically referencing authentication of the messages;
defense counsel objected to this omission. Id. at 112.



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months before Mosley’s arrest.         Finally, and most relevant to the issue of

authorship, the court does not discuss the fact that there is no reference to

Donte in any of the drug-related text messages.

      Like   Koch,   this   is    a    close     case   regarding   authorship   and

authentication. Here, there is no evidence, direct or circumstantial, tending

to substantiate that Mosley was the author of the drug-related text

messages. Moreover, no testimony was presented from persons who sent or

received the text messages.           While there may be contextual clues with

regard to some texts, (i.e., one of the text messages is from Mosley’s

mother on July 26, 2012, just 18 days before his arrest, wishing Mosley a

happy birthday), there are no such clues in the drug-related texts messages

themselves tending to reveal the identity of the sender.            Compare Koch,

supra (“reference to or correspondence with relevant events that precede or

follow the communication in question” may be a distinctive characteristic

under Rule 901(b)(4)).           Additionally, the fact that a text message

corroborates the “crazy horse” stamp on one of the baggies of drugs

discarded by Mosley just prior to his arrest is merely circumstantial evidence

of authentication. Nothing in that specific message, however, indicates the

identity of the author or recipient of the message.

      As the United States Supreme Court noted in Riley, supra, more

substantial privacy interests are at stake when digital data is in play:

      Cell phones differ in both a quantitative sense from other objects
      that might be kept on an arrestee’s person. The term “cell
      phone” is itself misleading shorthand; many of these devices are

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      in fact minicomputers that also happen to have the capacity to
      be used as a telephone. They could just as easily be called
      cameras, video players, rolodexes, calendars, tape recorders,
      libraries, diaries, albums, televisions, maps, or newspapers.

Id. at 2489. Moreover, due to their immense capacity to store data, cell

phones “have several interrelated consequences for privacy[,]” including the

different   types    of   data   (i.e.,   addresses,   notes,     bank    statements,

prescriptions, videos) that can be stored on them, the sheer amount of

information with regard to each type of stored data, and the fact that the

data stored on the cell phone can date back months or even years to the

original purchase of the phone (or even beyond that date with the ability to

transfer data from an older phone to a newer one). Id. Finally, due to the

fact that most people in the general population carry a cell phone on their

person throughout the day, “more than 90% of American adults who own a

cell phone keep on their person a digital record of nearly every aspect of

their lives – from the mundane to the intimate.”                Id. at 2490 (citation

omitted).

      Bearing   in   mind    the   unique     nature   of   a   cell   phone   and   its

pervasiveness in everyday society, we believe that in order to use content

from a cell phone as testimonial evidence in a criminal prosecution, the

Commonwealth must clearly prove its authentication. Because there was no

evidence, direct or circumstantial, clearly proving that Mosley was the author

of the drug-related text messages, or any corroborating witness testimony

regarding authenticity of the messages, we find that the trial court erred in



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determining that the drug-related texts were authenticated properly in the

instant case.13

       Hearsay

       Even    concluding     that    the      text   messages    were    not   properly

authenticated, we must still address Mosley’s claims that the text messages

were inadmissible hearsay. Hearsay is an out-of-court statement offered for

the truth of the matter asserted and is inadmissible unless it falls within an

exception     to   the   hearsay     rule.     See    Pa.R.E.   801(c);   Pa.R.E.   802;

Commonwealth v. May, 898 A.2d 559, 565 (Pa. 2006). When this type of

evidence is in question, the distinction can be subtle between a statement

that, if admitted, would serve as affirmative and substantive evidence of the

accused’s guilt, and non-hearsay that may be admitted to establish some

other aspect of a case, such as motive or a witness’s relevant course of

conduct.

       Here, the Commonwealth argues that the texts are admissible under

the hearsay exception set forth in Pa.R.E. 803(25), which states, “[t]he

statement is offered against an opposing party and: (A) was made by the

party in an individual or representative capacity; [or] (B) is one the party

manifested that it adopted or believed to be true.”                   Specifically, the

Commonwealth claims that Mosley’s responses to drug requests that were in

____________________________________________


13
   We leave for another day the quantum and quality of evidence necessary
to “clearly” prove authentication of text messages.



                                            - 20 -
J-A33005-14



the form of questions falls within the section 803(25) hearsay exception

because they were admitted to provide context for the outgoing text

messages (statements) he sent.

      With respect to the issue of inadmissible hearsay in Koch, a detective,

who was a Commonwealth expert witness, testified that in his opinion the

text messages found on the defendant’s cell phone, in conjunction with other

factors (bongs, pipes, large amounts of cash, drug scales) were consistent

with drug sales that implicated the defendant, even though the detective

conceded that the author of the drug-related text messages could not be

definitively ascertained, that several texts were incomplete and that some

messages referenced the defendant in the third person. Koch, 39 A.3d at

1002-1003. In addition, the prosecutor acknowledged that the purpose of

the text evidence was to show that defendant’s phone was used in drug

transactions, and, therefore, that it makes it more probable than not that

when the defendant possessed the drugs she did so with the intent to deliver

it as opposed to for personal use. Id. at 1005-06. As a result, the Court

concluded that the only relevance of the evidence was to prove the truth of

the matter asserted – that there were drug-related text messages on

defendant’s cell phone and, therefore, that admission of the messages was

an abuse of discretion and not harmless error. Id. at 1006-07.

      Similarly, here Sgt. Rutherford testified that there were several text

messages on the cell phones that, in his professional opinion, appeared to

involve drug trafficking or setting up deals. N.T. Jury Trial, 9/17/13, at 55.

                                    - 21 -
J-A33005-14



He also testified that drug dealers often carry two phones, one personal and

one for business, and that cell phones are the main mode of communication

in the drug dealing trade.    Id. at 55-56, 41.    However, Sgt. Rutherford

testified that there was no identifying information regarding Mosley in any of

the drug-related texts on either phone.      Id. at 59-62, 71.      On direct

examination, Sgt. Rutherford testified that narcotics sales are frequently set

up with text messaging, id. at 26, and that because there were similar

numbers on both cell phones and some of the text messages included

Mosely’s name, such facts were consistent with a pattern of drug sales.

      On direct examination by the prosecution, Sgt. Rutherford testified

that the phones contained text messages from various people indicating

“there was a sale of narcotics, there was a request for different types of

narcotics, drugs, meet, locations, places to meet, things like that.”   Id. at

29. Sergeant Rutherford consistently testified to common street terms used

in illegal drug sales, the manner in which dealers often stamp their bags of

drugs with symbols and wording, and that text messages are often sent to a

phone in an attempt to buy drugs.     Ultimately, the prosecutor asked Sgt.

Rutherford if, based on his expertise, he had formed an opinion that the

drugs and cell phones confiscated from Mosley were associated with the

distribution of drugs, or just mere possession for personal use, to which he

replied:

      Yes. A combination. I take into account everything, the totality
      of everything. You know, a combination of the packaging, the
      text messages, this is consistent with someone who is involved

                                    - 22 -
J-A33005-14


      with the sale of narcotics.   And in this case, different types of
      narcotics.

                                     *   *    *

      A lot of times dealers – I mean, especially with the heroin
      because the weights can really affect severe jail terms. They
      don’t like to carry a whole lot. I mean, they’d rather have less.
      A lot of times you’ll see – in some of the text messages he says
      what do you need. What do you need because sometimes –
      depending on where they set up their operation, they may only
      come out with what you ask for.

Id. at 46, 52.

      Taking into account the content of the texts in this case, as well as the

erroneously admitted evidence of Officer Doyle’s statement regarding drug

activity, we conclude that under Koch the admission of the messages was

an abuse of discretion where the texts were admitted to prove the truth of

the matter asserted – that Mosley possessed the drugs with the intent to

deliver. However, if we discount the improperly admitted text messages and

Officer Doyle’s statement, we conclude that there is substantially similar

evidence showing that Mosley possessed the drugs with the intent to deliver.

See infra at 23-24. Therefore, we find that the improper admission of the

statement and text messages was harmless error, did not unduly prejudice

Mosley, and still resulted in a fair trial. See Watson, supra; West, supra;

Story, supra.

Sufficiency & Weight of the Evidence

      Mosley contends that there was insufficient evidence to prove that he

committed the crimes of possession and possession with intent to deliver.


                                    - 23 -
J-A33005-14



Specifically, he argues that the passenger in the Cadillac was just as likely to

have possessed the drugs as he was and that the Commonwealth failed to

show that he exercised conscious dominion over the drugs.

      In reviewing a challenge to the sufficiency of the evidence, we must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that each and every element of

the   crimes    charged   was     established   beyond    a   reasonable   doubt.

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

      First, Mosley was driving the car from which two clear plastic bags

(each containing multiple baggies within) were thrown out of the driver’s

side window. Second, no drugs, paraphernalia or other incriminating drug

evidence was found on the passenger in the Cadillac.                 Third, expert

testimony by Sgt. Rutherford confirmed that the packaging, weight and type

of drugs, in addition to the $117.00 and cell phones found on Mosley’s

person at the time of his arrest, are all indicative of possessing drugs with

the intent to deliver. Accordingly, we find that there was sufficient evidence

to support Mosley’s conviction for possession and possession with the intent

to deliver.    Cf. Koch, supra at 1007 (Commonwealth failed to present

overwhelming      properly      admitted   evidence      regarding     defendant’s

involvement in drug transactions; prosecution’s case consisted of text

message evidence and that drugs were found in defendant’s shared




                                      - 24 -
J-A33005-14



bedroom, in common areas of home, and no drugs or money found on

defendant’s person).

      Next, Mosley contends that the verdict is against the weight of the

evidence, where the actual possessor of the drugs thrown from the car was

not and could not be determined. We disagree.

      When a defendant challenges the weight of the evidence, relief in the

form of a new trial may be granted only where the verdict shocks one’s

sense of justice. This Court reviews the trial court’s exercise of discretion in

ruling on the weight claim, not the underlying question of whether the

verdict was against the weight of the evidence.            Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003); Commonwealth v. Rabold,

920 A.2d 857, 860-61 (Pa. Super. 2007), aff’d 951 A.2d 329 (Pa. 2008). In

reviewing the trial court's decision concerning the weight of the evidence, an

appellate   court   is   not   passing   on   the   credibility   of   witnesses.

Commonwealth v. Woody, 679 A.2d 817, 819-20 (Pa. Super. 1996). This

is a function that is solely within the province of the finder of fact which is

free to believe all, part of none of the evidence. Id.

      Here, the jury heard the evidence that Mosely was the driver of the

black Cadillac, that two bags later identified as containing drugs were

discarded from the driver’s side window while the vehicle was being pursued

by the police, and that $117 in U.S. currency, and two cell phones were

found on his person upon being stopped and searched.          A Commonwealth

expert testified that this evidence was indicative of drug possession and

                                     - 25 -
J-A33005-14



possession with the intent to deliver.   Accordingly, we find that given the

evidence presented to prove that Mosley committed these possessory

offenses, the verdict does not shock one’s sense of justice; the court’s

decision to deny the challenge to the weight of the evidence is not contrary

to law, manifestly unreasonable or the result of bias, prejudice, partiality or

ill-will. Champney, supra.

Reopen Suppression Hearing

      Mosley next contends that the trial court improperly denied his

request, at the end of the suppression hearing, to reopen the record to

permit him to introduce testimony regarding the operation of and access to

the cell phones. Specifically, Mosley asserted that because defense counsel

was surprised at the hearing by Officer McDevitt’s testimony regarding the

operation of the cell phone, counsel needed proof that in order to view the

texts, some affirmative action by the officer (such as swiping or unlocking

with a password) needed to occur. Having found that any improper viewing

of the text messages, by Officer McDevitt, on the cell phones confiscated

incident to Mosley’s arrest was harmless error in light of the subsequently

and independently secured search warrant, we find this issue moot on

appeal.

      Alleyne Sentencing Issue

      Finally, Mosley contends that the trial court’s application of the

mandatory minimum to his sentence is illegal because the United States

Supreme Court’s decision, Alleyne v. United States, 133 S.Ct. 2151

                                    - 26 -
J-A33005-14



(2013),    has    rendered       the   sentencing   scheme   under   section   7508

constitutionally suspect. Additionally, he claims that even though the jury

used a special verdict to allow the factfinder to determine the weight of the

drugs possessed, by a reasonable doubt, the verdict still violates section

7508 and its plain legislative intent. We agree.

       First, we must address the Commonwealth’s contention that Mosley

has waived this issue on appeal due to his failure to include an Alleyne-

based sentence challenge at sentencing, in his post-sentence motion, or in

his Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

In Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en

banc),14 our Court observed that “where [a]pplication of a mandatory

minimum sentence gives rise to illegal sentence concerns, even where the

sentence is within the statutory limits[,] [sic] [l]egality of sentence

questions are not waivable” and may be raised sua sponte by this Court.15
____________________________________________


14
  In Watley, the defendant did not even raise his Alleyne argument on
appeal. Rather, this Court raised the issue sua sponte.
15
   We are aware that our Supreme Court has accepted allowance of appeal
on the issue of whether Alleyne relates to the legality of sentence, stating
as the issue follows:

       Whether a challenge to a sentence pursuant to Alleyne v.
       United States, 133 S.Ct. 2151 (2013), implicates the legality of
       the sentence and is therefore non-waivable.

Commonwealth v. Johnson, 93 A.3d 806 (Pa. 2014). However, until the
Supreme Court overrules the non-waivability language found in Watley, we
are bound by that case and its progeny.
(Footnote Continued Next Page)


                                          - 27 -
J-A33005-14



Because Mosley’s claim falls within this narrow ambit of cases and,

therefore, is not subject to traditional issue preservation, we will address its

merits.

      In Alleyne, supra, a case concerning the application of a federal

mandatory minimum statute, the Supreme Court held that any fact that

triggers an increase in the mandatory minimum sentence for a crime is

necessarily an element of the offense. Id. at 2163-64. The Supreme Court

reasoned that "the core crime and the fact triggering the mandatory

minimum sentence together constitute a new, aggravated crime" and

consequently, the Sixth Amendment requires that every element of the

crime, including any fact that triggers the mandatory minimum, must be

alleged in the charging document, submitted to a jury, and found beyond a

reasonable doubt. Id. at 2160-64.

      In Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), our

Court discussed the application of               Alleyne to this Commonwealth’s

mandatory minimum statutes:

      This term, in Alleyne, the United States Supreme Court
      expressly overruled Harris, holding that any fact that increases
      the mandatory minimum sentence 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, 2163. The
      Alleyne majority reasoned that "[w]hile Harris limited Apprendi
      to facts increasing the statutory maximum, the principle applied
      in Apprendi applies with equal force to facts increasing the
                       _______________________
(Footnote Continued)




                                           - 28 -
J-A33005-14


        mandatory minimum." [Id.] at 2160. This is because "[i]t is
        impossible to dissociate the floor of a sentencing range from the
        penalty affixed to the crime[,]" and "it is impossible to dispute
        that facts increasing the legally prescribed floor aggravate the
        punishment." Id. at 2161. Thus, "[t]his reality demonstrates
        that the core crime and the fact triggering the mandatory
        minimum sentence together constitute a new, aggravated crime,
        each element of which must be submitted to the jury." Id.

Id. at 665. In Munday, the Court held that even where a statute

specifically stated that its “provisions . . . shall not be an element of the

crime,”16 the sentencing factor [or factual predicate] at issue still had to be

determined by the factfinder, beyond a reasonable doubt. Id. at 666. Thus,

the Court found that the defendant’s sentence, which included the

mandatory minimum sentence under section 9712.1 (sentences for certain

drug offenses committed with firearms), violated the Due Process Clause of

the Fourteenth Amendment and the jury trial guarantee of the Sixth

Amendment.       As a result, the Court vacated the defendant’s judgment of

sentence and remanded for resentencing. Id. at 667.

        Instantly, Mosley was sentenced pursuant to the mandatory minimum

statute, section 7508 of the Sentencing Code, which states, in pertinent

part:




____________________________________________


16
   We note that section 7508 contains identical language in its “proof at
sentencing” subsection as that found in other mandatory minimum statutes.
See also 18 Pa.C.S. § 6317(b) & 42 Pa.C.S. § 9712.1(c) (identical proof of
sentencing provision language).



                                          - 29 -
J-A33005-14


     (a)   General rule. --Notwithstanding any other provisions of
           this or any other act to the contrary, the following
           provisions shall apply:

        (3) A person who is convicted of violating section
        13(a)(14), (30) or (37) of The Controlled Substance, Drug,
        Device and Cosmetic Act where the controlled substance is
        coca leaves or is any salt, compound, derivative or
        preparation of coca leaves or is any salt, compound,
        derivative or preparation which is chemically equivalent or
        identical with any of these substances or is any mixture
        containing any of these substances except decocainized
        coca leaves or extracts of coca leaves which (extracts) do
        not contain cocaine or ecgonine shall, upon conviction, be
        sentenced to a mandatory minimum term of imprisonment
        and a fine as set forth in this subsection:

            (ii) when the aggregate weight of the compound
        or        mixture containing the substance involved is
        at least       ten grams and less than 100 grams;
        three years in prison and a fine of $ 15,000 or such larger
        amount as      is sufficient to exhaust the assets utilized in
        and the proceeds from the illegal activity; however, if at
        the       time of sentencing the defendant has been
        convicted of another drug trafficking offense: five years
        in prison      and $ 30,000 or such larger amount as is
        sufficient to  exhaust the assets utilized in and the
        proceeds from the illegal activity[.]

     (b) Proof of sentencing. --Provisions of this section shall not be
     an element of the crime. Notice of the applicability of this section
     to the defendant shall not be required prior to conviction, but
     reasonable notice of the Commonwealth's intention to proceed
     under this section shall be provided after conviction and before
     sentencing. The applicability of this section shall be determined
     at sentencing. The court shall consider evidence presented at
     trial, shall afford the Commonwealth and the defendant an
     opportunity to present necessary additional evidence and shall
     determine, by a preponderance of the evidence, if this section is
     applicable.

18 Pa.C.S. § 7508(a)(3)(ii) (emphasis added), (b) (emphasis added).

Therefore the factual predicate of section 7508 is that the aggregate weight



                                    - 30 -
J-A33005-14



of the prohibited substance possessed by the defendant be at least 10 and

no more than 100 grams.

      In Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014),

the trial court applied the mandatory minimum provisions of section 7508 to

the defendant’s sentence.     On appeal, our Court held that because the

weight of the drugs possessed by the defendant had not been determined by

the fact-finder, nor proven beyond a reasonable doubt, the defendant’s

sentence was illegal and required vacation.       Specifically, the Court noted

that section 7508(a) cannot be constitutionally applied in light of Alleyne, or

it would result in an illegal sentence.       Similarly, in Commonwealth v.

Fennell, 105 A.3d 13 (Pa. Super. 2014), where the defendant stipulated to

the weight of the drugs for purposes of applying the mandatory minimum to

his sentence, our Court also concluded that section 7508(b), which permits

the trial court to find the necessary elements by a preponderance of the

evidence, was not severable from the rest of the statute.            The Court

concluded that stipulating to the drug’s weight, in effect, allows a trial court

to impose a mandatory minimum outside the statutory framework, where

such procedures are solely within the province of the factfinder. Id. at *20.

As a result the Court deemed section 7508 unconstitutional and that any

mandatory minimum imposed under this statue is illegal. Id. at *15-18.




                                     - 31 -
J-A33005-14



       Although the principles of Alleyne and it progeny apply to Mosley’s

section 7508 mandatory minimum sentence, the sentencing procedure in the

instant case differs from that employed in Thompson and Fennell.17 As a

result, the Commonwealth contends that Mosley’s sentence should not be

deemed illegal. We disagree.

       Here, the jury was presented with a special verdict form that included

the specific issue:

       If you find the defendant guilty of Count 4(c): possession with
       intent to deliver, do you find the defendant guilty of possession
       with intent to deliver greater than 10 grams of cocaine?

Jury Verdict Form, 9/17/13 (emphasis added).               Therefore, the issue

regarding the weight of the drugs possessed by Mosley appears to have

been determined, beyond a reasonable doubt, by the jury as factfinder.

However, our Court has held that trial courts lack the authority to employ

special verdict slips in cases involving mandatory minimum sentences that

implicate Alleyne. See Commonwealth v. Valentine, 101 A.3d 801 (Pa.

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

(en banc).




____________________________________________


17
   See also Commonwealth                 v. Vargas, 2014 PA Super. 289 (filed
December 31, 2014) (relying               on Fennell which held section 7508
unconstitutional, as applied in         light of Alleyne, and that even though
defendant stipulated to weight            of drugs, sentence applying mandatory
minimum was illegal).



                                          - 32 -
J-A33005-14



        In Valentine, the defendant had been convicted by a jury of robbery

and sentenced to 5-10 years’ imprisonment, which included application of

two mandatory minimum sentencing provisions, 42 Pa.C.S. §§ 9712 (visible

possession    of   firearm)   and   9713   (offense   committed   in/near   public

transportation).    Valentine, 101 A.3d at 804-805.       Similar to the instant

case, the trial court presented the jury with a special verdict slip, asking it to

determine whether the factual predicates had been proven beyond a

reasonable doubt.     Id.     On appeal, the defendant, like Mosley, raised the

issue whether the mandatory minimum sentence imposed was illegal since

the provisions of the sentencing statutes were rendered unconstitutional in

light of Alleyne.     In coming to its decision, the Valentine Court found

Newman, supra, instructive, which also reviewed the constitutionality of

section 9712 and determined that the factual predicate of that statute

(visible possession of firearm) must be presented to the factfinder and

determined beyond a reasonable doubt.            Notably, the Newman Court

declined to accept the Commonwealth’s proposed remedy to have the case

remanded for a sentencing jury to determine beyond a reasonable doubt

whether the Commonwealth had proven the factual predicates of section

9712.

        In reaching its holding, the Newman Court stated:

        The Commonwealth's suggestion that we remand for a
        sentencing jury would require this court to manufacture whole
        cloth a replacement enforcement mechanism for Section 9712.1;
        in other words, the Commonwealth is asking us to legislate. We
        recognize that in the prosecution of capital cases in

                                       - 33 -
J-A33005-14


      Pennsylvania, there is a similar, bifurcated process where the
      jury first determines guilt in the trial proceeding (the guilt
      phase) and then weighs aggravating and mitigating factors in
      the sentencing proceeding (the penalty phase). However, this
      mechanism was created by the General Assembly and is
      enshrined in our statutes at 42 Pa.C.S.[] § 9711. We find that it
      is manifestly the province of the General Assembly to determine
      what new procedures must be created in order to impose
      mandatory minimum sentences in Pennsylvania following
      Alleyne. We cannot do so.

Newman, 99 A.3d at 102.        Ultimately, the Valentine Court applied the

holding of Newman to conclude that “the trial court performed an

impermissible legislative function by creating a new procedure in an effort to

impose the mandatory minimum sentences in compliance with Alleyne.”

Valentine, 101 A.3d at 811. Because Newman makes it clear that it is the

General Assembly’s function to determine what new procedures must be

created to impose mandatory minimum sentences in this Commonwealth,

the trial court exceeded its authority by asking the jury to determine the

factual predicates of sections 9712(c) and 9713(c). Id. at 812.

      Similarly, here the trial court exceeded its authority by permitting the

jury, via a special verdict slip, to determine beyond a reasonable doubt the

factual predicate of section 7508 – whether Mosley possessed cocaine that

weighed greater than 10 grams. Even though the jury responded “yes” to

the inquiry, the trial court performed an impermissible legislative function by

creating a new procedure in an effort to impose the mandatory minimum

sentence in compliance with Alleyne.         Accordingly, we must vacate the

defendant’s judgment of sentence and remand for resentencing without the


                                    - 34 -
J-A33005-14



mandatory minimum.        Valentine, supra.    See also Commonwealth v.

Ferguson, 2015 PA Super 1 (Pa. Super. 2015) (defendant’s sentence

vacated and remanded for resentencing without consideration of mandatory

minimum sentences where trial court lacked authority to have jury

determine, via verdict slip, factual predicate under section 9712).

      Convictions affirmed. Judgment of sentence vacated. Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2015




                                    - 35 -
