J-S63029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

UZZIAH MURRAY

                            Appellant                    No. 677 MDA 2014


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


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

MEMORANDUM BY PANELLA, J.:                          FILED DECEMBER 18, 2014

        Appellant, Uzziah Murray, appeals from the judgment of sentence

entered March 26, 2014, by the Honorable Douglas W. Herman, Court of

Common Pleas of Franklin County.               After review, we vacate Murray’s

judgment of sentence and remand for the re-imposition of sentence.

        We take the underlying facts and procedural history in this matter

from the trial court’s June 10, 2014, opinion.

              On January 18, 2013[,] Uzziah Yeassem Murray
        (“Appellant”) was charged with one count of possession with
        intent to deliver a controlled substance under 35 P.S. § 780-
        113(a)(30). The basis for the charge stemmed from a search of
        Appellant yielding 3 bags of heroin and a search of an apartment
        wherein 44 bags of heroin were found.           The search was
        conducted pursuant to a search warrant issued on January 17,
        2013. On July 25, 2013[,] [the trial court] convened hearing on
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       Appellant’s motion to suppress in which he challenged: the
       arrest and search of Appellant as exceeding the scope of the
       search warrant; the arrest and search of Appellant alleging the
       affidavit of probable cause did not establish a nexus to
       Appellant; the search warrant as being based on false
       information; and a challenge to video surveillance.              On
       November 1, 2013[,] Appellant’s motion to suppress was
       granted as to video footage obtained without a warrant and
       denied as to all other issues. Prior to trial the Commonwealth
       filed a motion in limine to introduce evidence of prior bad acts
       including testimony by confidential informant Benjamin Shifflett
       (“CI”) that he purchased heroin from Appellant on several
       occasions from Appellant’s apartment for close to a year
       preceding execution of a search warrant on the apartment. The
       Commonwealth amended its motion to include only prior bad
       acts from January 17 and 18, 2013. [The trial court] granted
       the Commonwealth’s motion on the record at trial. The jury trial
       was held on February 6, 2014 and the jury found Appellant
       guilty of possession with intent to deliver heroin. The verdict slip
       included an added section asking the jury to find the weight of
       the heroin involved. Subsequent to the trial, on February 20,
       2014[,] the Commonwealth filed a notice of its intent to seek a
       mandatory minimum sentence pursuant to 18 Pa.C.S. § 7508.[1]
       Appellant contested the imposition of a mandatory minimum
       sentence claiming the statute was unconstitutional pursuant to
       the recent United States Supreme Court decision in Alleyne v.
       United States, 133 S.Ct. 2151 (2013). At the sentencing hearing
       on March 26, 2014[,] [the trial court] imposed the mandatory
       minimum sentence under 18 Pa.C.S. § 7508 on the basis that 18
       Pa.C.S. § 7508(b) … is severable from the rest of the statute,
       and since it was the jury and not the [c]ourt who found that the
       weight of the heroin met the threshold condition for a mandatory
       minimum sentence under 18 Pa.C.S. § 7508(a) …, Appellant’s
       Sixth Amendment rights were not violated.           Appellant was
       sentenced to 36 to 72 months[’] incarceration. Appellant now
       files this timely appeal to the Superior Court.
____________________________________________


1
  The trial court imposed a three-year sentence pursuant to 18 Pa.C.S.A. §
7508(a)(7)(ii), which provides for a mandatory minimum sentence “when
the aggregate weight of the compound or mixture containing the heroin
involved is at least 5.0 grams but less than 50 grams.”




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Trial Court Opinion, 6/10/14 at 1-2.

      On appeal, Murray raises the following issues for our review:

      A. Whether the trial court erred when it denied [Murray’s]
         Motion to Suppress?

      B. Whether the    trial  court    erred    by   granting    the
         Commonwealth’s motion to allow in prior bad acts testimony?

      C. Whether the trial court erred by imposing the mandatory
         minimum sentence pursuant to 18 Pa.C.S.A. §7508 when 18
         Pa.C.S.A. §7508 is unconstitutional in light [of] [Alleyne] v
         United States, 133 S.Ct. 2151 (2013)?

Appellant’s Brief at 9.

      We review the denial of a motion to suppress physical evidence as

follows:

           Our standard of review in addressing a challenge to a trial
           court’s denial of a suppression motion is limited to
           determining whether the factual findings are supported by
           the record and whether the legal conclusions drawn from
           those facts are correct.

           [W]e may consider only the evidence of the prosecution
           and so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the record supports the findings of the
           suppression court, we are bound by those facts and may
           reverse only if the court erred in reaching its legal
           conclusions based upon the facts.

           Further, [i]t is within the suppression court's sole province
           as factfinder to pass on the credibility of witnesses and the
           weight to be given their testimony.

Commonwealth v. Houck, ___ A.3d ___, ___, 2014 WL 4783552 at *10

(Pa. Super., filed Sept. 26, 2014) (internal citations and quotations omitted).




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      Murray raises three distinct challenges to the trial court’s denial of his

suppression motion. Murray first argues that the search of his person in the

hallway of the apartment building exceeded the scope of the search warrant.

See Appellant’s Brief at 16. We find this interpretation of the scope of the

warrant to be too narrow. The search warrant authorized the search of 60

Lincoln Way West, Apartment #1 in Chambersburg Borough, Franklin County

PA, including “any curtilage present.”    Application for Search Warrant and

Authorization, 1/17/13.   The warrant additionally authorized the search of

Murray’s person, in addition to any other persons present. See id. Notably,

the search warrant does not limit the authorization to search Murray to the

confines of his apartment, and in fact, extends the search authorization to

any curtilage present.     We therefore find the police search of Murray

conducted in the hallway outside of the apartment was within the authority

granted by the search warrant.      See also Commonwealth v. Franklin,

990 A.2d 795, 800 (Pa. Super. 2010) (noting with approval the prevailing

view that “a search warrant can issue for a person and when it does, the

search need not be at the location specified in the warrant”).

      Murray next argues that the search warrant was invalid because it

failed to identify him with the requisite particularity.   The search warrant

identifies one of the individuals to be searched as “‘John Doe Slim’ aka

Uzziah MURRAY.”     Murray contends that because the affidavit of probable

cause attached to the application for search warrant fails to establish that




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the individual referred to as “Slim” is in fact Murray, the magisterial district

judge erred when it authorized the search of Murray’s person.

      Pennsylvania Rule of Criminal Procedure 206 requires, inter alia, that:

      Each application for a search warrant shall be supported by
      written affidavit(s) signed and sworn to or affirmed before an
      issuing authority, which affidavit(s) shall:

                                      ...

      (3) name or describe with particularity the person or place to be
      searched;

                                      ...

Pa.R.Crim.P. 206(3).

      Murray correctly notes that the affidavit of probable cause attached to

the Application for Search Warrant refers only to an individual known as

“Slim” and does not establish that Slim and Murray are the same individual.

However, we do not find that this deficiency in this instance renders the

warrant defective.   It is well-established that that “search warrants should

be read in a common sense fashion and should not be invalidated by

hypertechnical interpretations.” Commonwealth v. Johnson, 33 A.3d 122,

125 (Pa. Super. 2011) (citation omitted), appeal denied, 47 A.3d 845 (Pa.

2012).   Here, the failure of the affidavit of probable cause to establish a

connection between Slim and Murray is remedied by the classification “‘John

Doe Slim’ aka Uzziah MURRAY” contained in the search warrant application.

Clearly, both the search warrant application and the supporting affidavit of

probable cause are not read in isolation, but rather, in conjunction. Thus,



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we are satisfied that the identification of Murray as the individual known as

Slim in the application for search warrant effectively remedies the failure to

do so in the affidavit of probable cause. This argument fails.

      Lastly, Murray argues that the search warrant was defective because

the affidavit of probable cause references surveillance footage of a drug

transaction, which the trial court ultimately suppressed. Despite admitting

that the surveillance footage was of poor quality and thus constituted “very

little evidentiary value,” Murray contends that “without the allegations of a

video of a controlled buy within 72 hours, the magistrate would not have had

sufficient probable cause to issue the search warrant.” Appellant’s Brief at

19-20.

      Murray grossly exaggerates the importance of the surveillance footage

to the affidavit of probable cause.        The affidavit makes a single reference

that the “CI wore video which showed him/her walking in the front door, up

the steps to the second floor, walking along the railing and to the base of the

steps that go to the third floor.”          Application for Search Warrant and

Authorization, Affidavit of Probable Cause, 1/17/13. Omitting this reference,

the affidavit still confirms that the CI made a successful controlled buy of

heroin within 72 hours from a resident at the apartment known as Slim, and

that the CI had purchased heroin from Slim at that location in the past. See

id. The affidavit additionally avers that extensive police surveillance of the

location revealed traffic consistent with drug purchases and that the arrests

of   parties   to   these   transactions    at   the   target   residence   produced

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corroborating      information   of   the    individuals   selling   drugs   from   the

apartment.      See id.   Based upon quantum of evidence contained in the

affidavit of probable cause regarding the drug transactions at 60 Lincoln Way

West, 2nd floor apartment #1 and Murray’s participation therein, we find the

included reference to the video surveillance to be de minimis. Based on the

foregoing, we do not find the trial court’s denial of Murray’s suppression

motion to have been in error.

      In the second issue on appeal, Murray challenges the trial court’s

admission of prior bad acts, in the nature of the confidential informant’s

prior controlled buys on January 17 and 18, 2013. Appellant’s Brief at 20.

“[T]he 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. Fransen, 42 A.3d 1100, 1106 (Pa.

Super. 2012) (internal citations omitted).

      It is impermissible to present evidence at trial of a defendant’s prior

bad acts or crimes to establish the defendant’s criminal character or

proclivities.   See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.

Super. 2008).       Such evidence, however, may be admissible “where it is

relevant for some other legitimate purpose and not utilized solely to blacken

the defendant’s character.”      Commonwealth v. Russell, 938 A.2d 1082,

1092 (Pa. Super. 2007) (citation omitted).            Rule 404(b)(2) provides that

“[e]vidence of other crimes, wrongs, or acts may be admitted for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

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knowledge, identity or absence of mistake or accident.”          Pa.R.E., Rule

404(b)(2). Rule 404(b)(3), however, mandates that other crimes, wrongs,

or acts evidence “may be admitted in a criminal case only upon a showing

that the probative value of the evidence outweighs its potential for

prejudice.” Pa.R.E., Rule 404(b)(3); see also Russell, 938 A.2d at 1092.

      Instantly, we find that evidence of the informant’s prior controlled

buys of heroin from Murray was clearly relevant to establish a course of

conduct of drug-related activity and the history of the case.             See

Commonwealth v. Walker, 656 A.2d 90, 98 (Pa. 1995) (“[O]ur courts will

allow evidence of prior bad acts where the distinct crime or bad act was part

of a chain or sequence of events which formed the history of the case and

was part of its natural development.”).    Although certainly prejudicial, we

find no danger that the contested evidence would “stir such passion in the

[finder of fact] as to sweep them beyond a rational consideration of guilt or

innocence of the crime on trial.” Commonwealth v. Sherwood, 982 A.2d

483, 498 n.25 (Pa. 2009) (citation omitted). Therefore, we find that the trial

court did not abuse its discretion when it admitted the prior bad acts

evidence of the prior controlled narcotics buys.

      Finally, Murray argues that the trial court erred when it imposed the

mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508(a)(7)(ii).

Specifically, Murray argues that § 7508 is unconstitutional in light of Alleyne

v. United States, --- U.S. ---, 133 S.Ct. 2151 (2013). Appellant’s Brief at

23.

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     According to the Alleyne Court, a fact that increases the
     sentencing floor is an element of the crime. Thus, it ruled that
     facts that mandatorily increase the range of penalties for a
     defendant must be submitted to a fact-finder and proven beyond
     a reasonable doubt. The Alleyne decision, therefore, renders
     those Pennsylvania mandatory minimum sentencing statutes
     that do not pertain to prior convictions constitutionally infirm
     insofar as they permit a judge to automatically increase a
     defendant's sentence based on a preponderance of the evidence
     standard.

Commonwealth v. Thompson, 93 A.3d 478, 493 (Pa. Super. 2014) (citing

Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (footnote

omitted)).

     In   support   of   his   constitutional   challenge   to   §   7508,   Murray

incorporates by reference a sentencing memorandum filed March 10, 2014,

in which he allegedly “relied upon the very persuasive reasoning set for[th]

in the opinion and order issued by the Lycoming County Court of Common

Pleas sitting en banc in which all five Court of Common Pleas Judges

determined that 18 Pa.C.S.A. § 7508 is unconstitutional in light of

Alleyne….”    Appellant’s Brief at 23.     A copy of the en banc decision is

attached to Murray’s appellate brief; the sentencing memorandum is not.

     We are constrained to remind Murray that incorporation by reference

does not constitute a properly developed claim.         Our Supreme Court has

categorically rejected incorporation by reference as a means of presenting

an issue. The Court has called the practice “unacceptable” and explained,

“our appellate rules do not allow incorporation by reference of arguments

contained in briefs filed with other tribunals, or briefs attached as

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appendices, as a substitute for the proper presentation of arguments in the

body of the appellate brief.” Commonwealth v. Briggs, 12 A.3d 291, 342-

343 (Pa. 2011) (citations omitted).       The allowance of incorporation by

reference “would enable wholesale circumvention of our appellate rules

which set forth the fundamental requirements every appellate brief must

meet.” Id., at 343 (citations omitted).

      Ordinarily, to the extent that Murray has failed to properly develop an

argument concerning the constitutionality of § 7508, we would find this issue

waived.   However, we note this Court has previously stated in addressing

the Alleyne decision that where “[a]pplication of a mandatory minimum

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

within the statutory limits[,] [such] [l]egality of sentence questions are not

waivable.” Watley, 81 A.3d at 118. Therefore, we will address the merits

of this issue.

      Section 7508 states, in pertinent part:

      § 7508. Drug trafficking sentencing and penalties


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

                                      …

      (7) 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 or a mixture
      containing it is heroin shall, upon conviction, be sentenced as set
      forth in this paragraph:


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                                        …

      (ii) when the aggregate weight of the compound or mixture
      containing the heroin involved is at least 5.0 grams but less than
      50 grams: a mandatory minimum term of 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: a mandatory
      minimum term of 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.A. § 7508(a)(7)(ii), (b).

      Recently, in Commonwealth v. Valentine, ___ A.3d ___, 2014 WL

4942256 (Pa. Super., filed Oct. 3, 2014), a panel of this Court determined

that the trial court lacked the authority to allow the jury to determine the

factual predicates for imposition of mandatory minimum sentences under 42

Pa.C.S.A. §§ 9712 and 9713. See id. at ___, 2014 WL at *8. Relying upon

this Court’s recent en banc decision in Commonwealth v. Newman, 99

A.3d 86 (Pa. Super. 2014) (en banc), the Court in Valentine observed that



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in so doing the “trial court erroneously presupposed that only Subsections

(c) of both 9712 and 9713 (which permit a trial judge to enhance the

sentence based on a preponderance of the evidence standard) were

unconstitutional under Alleyne, and that Subsections (a) of 9712 and

9713[, relating to the factual predicates for imposition of the mandatory

minimum sentence,] survived constitutional muster.”         Id.    The panel

continued:

      Our    decision   in   Newman       however     holds   that   the
      unconstitutional provisions of § 9712(c) and § 9713(c) are not
      severable but “essentially and inseparably connected” and that
      the statutes are therefore unconstitutional as a whole. Id. at –––
      – – ––––, 13–14. (“If Subsection (a) is the predicate arm ...
      then Subsection (c) is the enforcement arm. Without Subsection
      (c), there is no mechanism in place to determine whether the
      predicate of Subsection (a) has been met.”).

      Moreover, Newman makes clear 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.”
      Newman at ––––, 14. Therefore, the trial court lacked the
      authority to allow the jury to determine the factual predicates of
      §§ 9712 and 9713. See Newman at –––– – ––––, 14–15
      (recognizing that several trial courts of this Commonwealth have
      found Section 9712.1 as a whole to be no longer workable
      without legislative guidance).

Id.

      We find the decision in Valentine controls this case. As in the facts

set forth in Valentine, the trial court here permitted the jury to determine

the weight of the heroin Murray possessed for purposes of imposing the

mandatory minimum sentence under 18 Pa.C.S.A. § 7508(a). However, as

the decision in Newman makes it clear that the enforcement provision

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under § 7508(b), which is unconstitutional in light of the decision in

Alleyne, is inseparable from the predicate arm in § 7508(a), § 7508 as a

whole is rendered constitutionally infirm. See Valentine. Accordingly, the

trial court lacked the authority to submit the factual predicate for the

sentence to the jury.     Therefore, we are constrained to vacate Murray’s

judgment of sentence and remand for resentencing without consideration of

the mandatory minimum sentence under § 7508.

     Judgment of sentence vacated.           Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

     Judge Platt joins in the memorandum.

     Judge Bowes files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2014




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