J-A07034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

STEVEN SUNEALITIS

                            Appellant             No. 1239 WDA 2014


            Appeal from the Judgment of Sentence March 13, 2014
              In the Court of Common Pleas of Clearfield County
             Criminal Division at No(s): CP-17-CR-0000713-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                               FILED MAY 8, 2015

       Appellant, Steven Sunealitis, appeals from the March 13, 2014

aggregate judgment of sentence of eight to 16 years’ imprisonment imposed

after he was found guilty by a jury of deposits, stores, or disposes of

chemical waste resulting from the manufacture of methamphetamine;

manufacture, delivery, or possession with intent to manufacture or deliver a

controlled substance; intentional possession of controlled substance by

person not registered; and use or possession of drug paraphernalia.1 After

careful review, we are constrained to vacate Appellant’s sentence and



____________________________________________


1
  35 P.S. §§ 780-113.4(b)(1), 780-113(a)(30), 780-113(a)(16), and 780-
113(a)(32), respectively
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remand for resentencing.      We affirm Appellant’s conviction on all other

bases.

     The trial court set forth the facts of this case as follows.

                 On May 13, 2013, at approximately 6:00 p.m.,
           Agent James Shuttleworth of the Pennsylvania Board
           of Probation and Parole, along with Agent Donald
           Eisman, visited the home of [Appellant], located in
           Sandy Township, DuBois, Pennsylvania. The purpose
           of the visit was to drug test [Appellant] as part of
           the terms and conditions of his parole. While in
           [Appellant]’s home Shuttleworth requested a urine
           sample from [Appellant]. In response, [Appellant]
           informed Shuttleworth that he would test positive for
           methamphetamines, as he had “just snorted a line of
           meth.” When asked by Agent Shuttleworth where
           the narcotics were obtained, [Appellant] stated that
           he manufactured the methamphetamine himself, in
           his home.

                 After this revelation, Shuttleworth began
           looking around [Appellant]’s residence in an attempt
           to find contraband. While conducting his search of
           the premises, Shuttleworth found what appeared to
           be methamphetamine in [Appellant]’s bedroom.
           [Appellant] later admitted that it was in fact
           methamphetamine when shown the substance by
           Shuttleworth. Agent Shuttleworth also searched the
           basement, where he discovered a melted soda bottle
           and some empty cold medicine capsules. Based
           upon his training and past experience, Shuttleworth
           believed that these items were traditionally utilized
           in employing the “shake and bake” method of
           manufacturing      methamphetamines.            Agent
           Shuttleworth then requested the Sandy Township
           Police to be present at the scene. Officers Erik Rupp
           and Travis Goodman responded to the call.

                  Before going back into [Appellant]’s home, the
           officers believed it to be prudent to acquire a search
           warrant. Later that night, a search warrant was
           granted and signed by the Honorable Jerome Nevling

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          at 12:00 a.m. on May 14, 2013. After attaining the
          warrant, the Sandy Township Police, along with a
          Clandestine Search Unit of the Pennsylvania State
          Police, went back to [Appellant]’s residence to search
          the premises.     The State Police carried out the
          search at approximately 12:55 a.m. on May 14,
          2013, as the Sandy Township Police force normally
          relies on the specialized skills and expertise of the
          State Police when dealing with the dangerous nature
          of methamphetamine labs.

                 The search uncovered copious items employed
          in the production of methamphetamine, including,
          but not limited to: a foam cooler that contained a
          plastic bottle containing pink crystals; an empty
          bottle of cold compresses and one empty pouch; a
          glass jar with stripped “AA” batteries; a plastic bottle
          with lighter fluid; blister packs of pseudoephedrine; a
          plastic bottle of drain opener; an empty bottle of
          Rooto drain cleaner; an instant cold pack; several
          empty blister packs; clear tubing; coffee filters; and
          a plastic Gatorade bottle that contained liquid waste
          from the manufacturing of methamphetamine.

                 As a result of the evidence that was discovered
          during that search, [Appellant] was charged with the
          [aforementioned] offenses []. The Commonwealth
          filed a [m]otion to [a]mend [i]nformation, on
          December 17, 2013, which asked th[e] [trial] [c]ourt
          to allow the Commonwealth to modify the
          [i]nformation to include facts relating to the
          aggregate weight of the compound or mixture of
          methamphetamine, pursuant to Alleyne v. United
          States, 133 S.Ct. 2151 (2013). On January 7,
          2014,      the     [trial]    [c]ourt   granted     the
          Commonwealth’s         [m]otion,    and  a[]    revised
          [i]nformation was filed on January 8, 2014.          In
          relevant part, the new [i]nformation stated that
          “[t]he actor did manufacture, deliver, or possess
          with intent to manufacture or deliver, a controlled
          substance, methamphetamine, where the aggregate
          weight of the compound or mixture containing the
          substance involved is at least 100 grams.”
          (Emphasis supplied).

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                 To arrive at the aggregate weight of “at least
          100     grams,”   the    Commonwealth      took    into
          consideration the weight of the contents of the
          plastic Gatorade “cook bottle” found at [Appellant]’s
          residence during the State Police search. The “cook
          bottle” contained waste from the production of
          methamphetamine        and    trace     amounts      of
          methamphetamine. It was determined during the
          investigation by a State Police forensic scientist that
          the weight of the fluid, that contained waste liquid
          and methamphetamine, was approximately [288]
          grams.

                 [Appellant]’s jury trial was held on January 27
          and 28, 2014.         At trial[,] the Commonwealth
          presented evidence from the search of [Appellant]’s
          home. Specifically, the Commonwealth established
          that the substance found in [Appellant]’s bedroom
          was [0.05] of a gram of pure, ingestible
          methamphetamine located in [Appellant]’s bedroom.
          Also, recovered and presented at trial was, the
          above-mentioned, Gatorade “cook bottle” that
          contained waste fluid and methamphetamine in []
          the aggregate amount of [288] grams. According to
          the testimony of Brett Bailor, a forensic chemist and
          qualified expert called by the Commonwealth, the
          contents of the plastic “cook bottle” were not
          ingestible, meaning that the liquid would be toxic if
          consumed. Mr. Bailor also expressed that a trace
          amount of methamphetamine was detectable in the
          waste mixture, but the exact amount of the drug was
          undeterminable. Lastly, Mr. Bailor testified that in
          the absence of highly-specialized tools, all of the
          methamphetamine found in the waste fluid could not
          be filtered from the waste product. Absent the trace
          amounts in the Gatorade bottle and tubing, and the
          small amount in [Appellant]’s bedroom, no other
          methamphetamine was recovered from [Appellant]’s
          residence.

                Upon conclusion of the Commonwealth’s case-
          in-chief, [Appellant]’s counsel made an oral motion
          for a [d]irected [v]erdict, arguing that the

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J-A07034-15


              Commonwealth        had   not   presented     sufficient
              evidence to the jury that would allow the members
              of the jury to find that [Appellant] possessed
              methamphetamine in the amount exceeding [100]
              grams, as stated in [Appellant]’s [i]nformation. The
              [trial] [c]ourt denied [Appellant]’s [m]otion, and the
              defense thus proceeded with presenting their case.

                    Upon the conclusion of the trial, the jury
              returned a guilty verdict that included a finding of an
              aggregate weight of a methamphetamine compound
              or mixture exceeding [100] grams. On March 11,
              2014, [Appellant] appeared before the [trial] [c]ourt
              for sentencing.      The [trial] [c]ourt sentenced
              [Appellant] in accordance with the guidelines and/or
              mandatory sentences relating to an aggregate
              weight in excess of [100] grams per 18 Pa.C.S.A.
              § 7508(a)(4)(iii).

Trial Court Opinion, 7/2/14, at 1-4.

       On March 17, 2014, Appellant filed a post sentence motion. On July 2,

2014, the trial court entered an opinion and order denying said motion. On

July 29, 2014, Appellant filed the instant timely appeal.2

       On appeal, Appellant raises the following issues for our review.

              I.     Whether the [trial] [c]ourt [] erred when, on
                     January 13, 2014, it dismissed the Appellant’s
                     [m]otion to [s]uppress [e]vidence[?]

              II.    Whether the [trial] [c]ourt erred when, on
                     January 28, 2014, it accepted the guilty verdict
                     of the jury despite a lack of sufficiency of
                     evidence presented by the Commonwealth
                     concerning the aggregate weight of a
____________________________________________


2
  The trial court and Appellant have complied with Pennsylvania Rule of
Appellate Procedure 1925(b). Specifically, the trial court’s August 7, 2014
letter directs this Court to its July 2, 2014 opinion.



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J-A07034-15


                   compound or mixture exceeding 100 grams,
                   and subsequently sentenced the Appellant
                   based upon the guilty verdict on March 11,
                   2014[?]

            III.   Whether the [trial] [c]ourt erred when, on July
                   2, 2014, it denied the Appellant’s [p]ost-
                   [s]entence [m]otion for [r]econsideration[?]

Appellant’s Brief at 7.

      Appellant’s first issue challenges the denial of his motion to suppress.

Our standard of review is as follows.

                  In addressing a challenge to a trial court’s
            denial of a suppression motion, we are limited to
            determining whether the factual findings are
            supported by the record and whether the legal
            conclusions drawn from those facts are correct.
            Since    the    Commonwealth      prevailed  in  the
            suppression court, we may consider only the
            evidence of the Commonwealth and so much of the
            evidence     for  the    defense     as   it remains
            uncontradicted when read in the context of the
            record as a whole. Where the record supports the
            factual findings of the trial court, we are bound by
            those facts and may reverse only if the legal
            conclusions drawn therefrom are in error.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014).

      Specifically, Appellant argues that the trial court erred in not

suppressing unspecified physical evidence because the Sandy Township

Police searched his residence before they acquired a search warrant.

Appellant’s Brief at 17-19. Appellant does not contest the warrant’s validity.




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J-A07034-15


      The Fourth Amendment to the United States Constitution protects “the

right of the people to be secure in their persons, houses, papers and effects,

against unreasonable searches and seizures[.]”      U.S. Const. amend. IV.

Similarly, the Pennsylvania Constitution provides that the “people shall be

secure in their persons, houses, papers and possessions from unreasonable

searches and seizures, and no warrant to search any place or to seize any

person or things shall issue without describing them as nearly as may be,

nor without probable cause, supported by oath or affirmation subscribed to

by the affined.” Pa. Const. art. I, § 8. “Absent probable cause and exigent

circumstances, warrantless searches and seizures in a private home violate

both the   Fourth Amendment and [] the Pennsylvania Constitution.”

Commonwealth v. Gibbs, 981 A.2d 274, 279 (Pa. Super. 2009), appeal

denied, 3 A.3d 670 (Pa. 2010).

      In its January 13, 2014 opinion denying Appellant’s motion to

suppress, the trial court found that the police did not search Appellant’s

house prior to obtaining a warrant even though Appellant had voluntarily

consented to a search.

            Officers Erik Rupp and Travis Goodman of the Sandy
            Township Police Department arrived at the scene.
            When they arrived the officers entered into
            [Appellant]’s residence, as [Appellant] and the two
            parole agents were sitting in [Appellant]’s kitchen.
            Officer Rupp proceeded to ask [Appellant] if he
            would consent to a search of his home. Agent
            Shuttleworth expressed that at first [Appellant] was
            hesitant in giving permission, but later “gave Officer
            Rupp permission to search his residence.” Officers

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J-A07034-15


          Rupp and Goodman also testified to the fact that
          consent was given by [Appellant].

                 However, Officer Rupp did not search
          [Appellant]’s dwelling at that precise moment.
          Shuttleworth and Rupp discussed the situation and
          decided that the officers would be more comfortable
          speaking to the District Attorney and obtaining a
          search warrant before commencing the search. After
          agreeing to this course of action, the agents
          removed [Appellant] from the premises and the
          officers exited the house. At approximately 7:30
          p.m. that evening the parole agents transported
          [Appellant] to Indiana County Jail. Officer Goodman
          remained outside of the residence to secure the
          area, while Officer Rupp traveled back to the station
          to prepare the necessary paperwork to obtain a
          search warrant. Sergeant Kris Kruzelak came to the
          [Appellant]’s home while Officer Goodman was
          securing    and    monitoring   the   area    around
          [Appellant]’s house. Sergeant Kruzelak stated that
          at no time during his presence on the premises, did
          any officers enter [Appellant]’s house.       Officer
          Goodman further affirmed that no law enforcement
          personnel went back into the house after [Appellant]
          was removed from the property.

                A search warrant was granted and signed by
          the Honorable Jerome Nevling at 12:00 a.m. on May
          14, 2013. After attaining the warrant, Officer Rupp,
          along with a Clandestine Search Unit of the
          Pennsylvania State Police, went back to [Appellant]’s
          residence to search the premises.      Officer Rupp
          averred that the search was carried out at
          approximately 12:55 a.m. on May 14, 2013.

                                    …

                The [trial] [c]ourt heard numerous witnesses,
          from both the Commonwealth and [Appellant], and
          believes that the search of [Appellant]’s home
          occurred after the police officers received the search
          warrant.     Credible testimony from numerous
          witnesses supported this fact, including:       Officer

                                   -8-
J-A07034-15


          Rupp; Officer Goodman; Agent Shuttleworth; and
          Sergeant Kru[z]elak.       While the Deboers, the
          [Appellant]’s neighbors, may have seen activity [of
          police entering Appellant’s residence before obtaining
          a search warrant] to bolster [Appellant]’s assertion,
          they never were actually on [Appellant]’s property
          and merely viewed what was occurring from their
          residence.     Moreover, while [Appellant]’s sister
          allegedly observed the officers exiting [Appellant]’s
          basement, this assertion is overshadowed by the
          trustworthy and reliable testimony from several law
          enforcement professionals. Accordingly, the [trial]
          [c]ourt   maintains    that    no   officers  entered
          [Appellant]’s home [for the purposes of searching
          the residence] prior to obtaining a search warrant
          and therefore the search was conducted in
          conformity with the Constitution.

                 The [trial] [c]ourt would further note that
          [Appellant] expressly consented to the search of his
          house. If officers obtain consent before entering a
          residence,      a    warrant      is    not    needed.
          Commonwealth v. Scott, 916 A.2d 695 (Pa. Super.
          2007). In order to be valid, consent to conduct a
          search must be freely, specifically, unequivocally,
          and voluntarily given and must not be the product of
          any duress or coercion. Id. In this case, while the
          officers did not search the premises until after a
          search warrant was obtained, consent was given by
          [Appellant].    The officers were being cautious in
          waiting to obtain a warrant before entering
          [Appellant]’s home [to search it]. However, even if
          the officers did enter [Appellant]’s abode, the officers
          had [Appellant]’s express permission to do so.
          Agent Shuttleworth, Officer Rupp, and Officer
          Goodman all credibly expressed that [Appellant]
          gave them permission to search his home. There
          was absolutely no evidence or testimony presented
          at the hearings that would indicate that [Appellant]’s
          consent was a product of duress or coercion.
          Accordingly, even though the [trial] [c]ourt believes
          that the police officers did not search the home until
          after the receipt of the warrant, the officers had


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J-A07034-15


             express consent to do so, consent that was not
             browbeaten or forced from Defendant.

Trial Court Opinion, 1/13/14, at 2-3, 5-6 (emphasis in original).

      Upon careful review, we conclude that the record supports the factual

findings of the trial court. Specifically, the trial court’s finding that police did

not initiate a search of Appellant’s home until after they obtained a search

warrant was supported by the testimony of the parole agent and the police

officers.   Further, their testimony also supports the finding that Appellant

consented to a search of the premises.         The legal conclusions drawn from

those findings are not erroneous.      Accordingly, Appellant’s first issue does

not warrant relief. See Scarborough, supra.

      Before addressing Appellant’s remaining claims, we first proceed to

consider the legality of Appellant’s sentence, sua sponte.           We begin by

observing the following principles regarding waiver on appeal. Relevant to

the instant case, “where application of a mandatory minimum sentence gives

rise to illegal sentence concerns, even where the sentence is within the

statutory limits, such legality of sentence questions are not waivable.”

Commonwealth v. Valentine, 101 A.3d 801, 809 (Pa. Super. 2014)

(citation, brackets, and quotation marks omitted).          “Legality of sentence

questions … may be raised sua sponte by this Court.” Commonwealth v.

Watley, 81 A.3d 108, 118 (Pa. Super. 2013 (en banc), appeal denied, 95

A.3d 277 (Pa. 2014) (citation omitted).        Finally, “a challenge to a sentence

premised upon [the Supreme Court’s decision in] Alleyene [v. United

                                      - 10 -
J-A07034-15


States, 133 S.Ct. 2151 (2013)] likewise implicates the legality of the

sentence and cannot be waived on appeal.” Commonwealth v. Newman,

99 A.3d 86, 90 (Pa. Super. 2014) (en banc).     Therefore, we address the

issue of Appellant’s sentence.

      In examining the legality of a sentence on appeal, this Court employs

the following standard of review.

            A challenge to the legality of a sentence … may be
            entertained as long as the reviewing court has
            jurisdiction. It is also well-established that if no
            statutory authorization exists for a particular
            sentence, that sentence is illegal and subject to
            correction. An illegal sentence must be vacated.
            Issues relating to the legality of a sentence are
            questions of law[.] … Our standard of review over
            such questions is de novo and our scope of review is
            plenary.

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)

(citations and quotation marks omitted).

      Here, the trial court sentenced Appellant pursuant to the mandatory

minimum statute at Section 7508(a)(4)(iii) after the jury found that the

aggregate weight of the compound or mixture containing the controlled

substance was 100 grams or more. N.T., 1/28/14, at 63; N.T., 3/11/14, at

8. Although the jury made the finding of the element beyond a reasonable

doubt on a special verdict form, this Court in Valentine concluded that




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J-A07034-15


Newman was still binding3 and that it is solely within the province of the

General Assembly to promulgate a new method of the imposition of

mandatory minimum sentences in the Commonwealth. Valentine, supra at

811-812.        Therefore,      because        the   trial   court   utilized   a   facially

unconstitutional statute in sentencing Appellant, the resulting sentence was

illegal.   Accordingly, we vacate the March 13, 2014 judgment of sentence

and remand to the trial court, with instructions to resentence Appellant

without consideration of the mandatory minimum sentence at Section

7508(a)(4)(iii), consistent with this memorandum.4 In all other aspects, we

affirm.

       Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.




____________________________________________


3
   In Newman and its progeny, this Court has applied Alleyne and
concluded the mandatory minimum sentencing schemes permitting a judge
to find the factor triggering the imposition of a mandatory minimum by a
preponderance of the evidence are facially unconstitutional as their
subsections are not severable from each other. See, e.g., Commonwealth
v. Fennel, 105 A.3d 13, 20 (Pa. Super. 2014) (recognizing Section 7508 is
facially unconstitutional in light of Newman).
4
  In light of our disposition, we need not consider Appellant’s two remaining
issues, challenging the application of Section 7508(a)(4)(iii) based on the
weight of the methamphetamine being over 100 grams.



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J-A07034-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2015




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