Commonwealth v. Newman

J. E01002/14

2014 PA Super 178

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

JAMES NEWMAN, : No. 1980 EDA 2012

:

Appellant :

Appeal from the Judgment of Sentence, June 13, 2012,

in the Court of Common Pleas of Montgomery County

Criminal Division at No. CP-46-CR-0000068-2011

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,

DONOHUE, ALLEN, LAZARUS, MUNDY, AND OLSON, JJ.

OPINION BY FORD ELLIOTT, P.J.E.:FILED AUGUST 20, 2014

Appellant brings this appeal challenging the constitutionality of one of

§ Alleyne v.

United States, U.S. , 133 S.Ct. 2151 (2013). We find that Alleyne

does indicate that the sentencing practice under Section 9712.1 is

sentence and remand for resentencing.

Following controlled drug buys involving appellant at Apartment No. 2

of the Station Avenue apartment complex in Glenside, police executed a

search warrant at that residence. Police discovered a large quantity of crack

cocaine, drug paraphernalia in the form of plastic baggies and digital scales,

J. E01002/14

and a handgun and bullets under a mattress in a bedroom. The bedroom

was located across a hallway from a bathroom where over 60 grams of

cocaine were found in the toilet. The distance between the gun and the

cocaine was approximately six to eight feet. Appellant and his

co-conspirators were arrested and brought to trial.

On February 14, 2012, a jury convicted appellant of two counts of

possession (cocaine), one count of possession of drug paraphernalia, one

count of dealing in proceeds of unlawful activities, one count of possessing

an instrument of crime, and five counts of criminal conspiracy. 1 On

February 23, 2012, the Commonwealth filed a Notice of Intent to Seek

Mandatory Sentence under Section 9712.1, which enhances the minimum

sentence where a firearm is found on a drug dealer, an accomplice, or in the

vicinity of the contraband. On June 13, 2012, the trial court sentenced

of th

imprisonment on one of the conspiracy convictions. On July 3, 2012, the

Appellant appealed his conviction to this court. This court affirmed the

judgment of sentence on June 12, 2013. On June 17, 2013, just five days

later, the United States Supreme Court issued its opinion in Alleyne. On

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June 25, 2013, appellant filed with this court an application for

reconsideration/reargument which we granted for en banc reargument. We

now address those issues raised upon reargument:

I. WHAT IS THE APPLICABILITY OF THE UNITED

ALLEYNE V. UNITED STATES, U.S. ,

133 S.CT. 2151 (2013), AND DOES THE

DECISION RENDER 42 PA.C.S. § 9712.1,

UNCONSTITUTIONAL IN THAT THE

MANDATORY MINIMUM STATUTE ALLOWS THE

TRIAL JUDGE TO DETERMINE WHETHER THE

EVIDENCE TRIGGERS THE APPLICATION OF

THE MANDATORY MINIMUM SENTENCE,

AMENDMENT RIGHTS PURSUANT TO THE

UNITED STATES CONSTITUTION, AND

PURSUANT TO ARTICLE I, SECTION IX, OF THE

PENNSYLVANIA CONSTITUTION WHICH

GUARANTEE THE APPELLANT TO A TRIAL BY

JURY AND A DETERMINATION OF GUILT

BEYOND A REASONABLE DOUBT BY THAT

JURY?

II. DOES ALLEYNE V. UNITED STATES, U.S.

, 133 S.CT. 2151 (2013), APPLY

RETROACTIVELY TO THE INSTANT MATTER, IN

THAT THIS CASE WAS DECIDED BY THE

SUPERIOR COURT ON JUNE 12, 2013,

ALLEYNE WAS DECIDED JUNE 17, 2013, BUT

APPELLANT FILED A TIMELY REQUEST FOR

REARGUMENT AND RECONSIDERATION, AND

IS NOT FINAL?

III. HAS THE CONTROLLING OR DIRECT RELEVANT

AUTHORITY RELIED UPON BY THE COURT

1

35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32); 18 Pa.C.S.A. §§ 5111,

907(a), and 903(a)(1), respectively.

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BEEN EXPRESSLY REVERSED, MODIFIED,

OVERRULED OR OTHERWISE MATERIALLY

AFFECTED DURING THE PENDENCY OF THE

MATTER SUB JUDICE, WITH NO NOTICE GIVEN

TO THE COURT PURSUANT TO PA.R.A.P.

2501(B)?

retroactive application of Alleyne Alleyne

are moot. We note in passing that the Commonwealth does not contend

that Alleyne does not apply retroactively to appellant, and we now find that

Allyene does apply retroactively.

Schriro v. Summerlin, 542 U.S. 348, 351

(2004), citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Although

Alleyne was announced, we retain jurisdiction for 30 days thereafter, to

modify or rescind our holding, or grant reargument as we have here, so long

as the appellant does not seek allowance of appeal before our supreme

court. See 42 Pa.C.S.A. § 5505. Moreover, our decision does not become

final until 30 days have elapsed and the time for filing a petition for

allowance of appeal with our supreme court expires. See Pa.R.A.P.,

Rule

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direct appeal when Alleyne was handed down, and the decision may be

se retroactively.2 However, there is a further

complication that must be addressed before Alleyne may be considered.

To be entitled to the retroactive application of a new constitutional

rule, a defendant must have raised and preserved the issue in the court

below:

[W]here an appellate decision overrules prior law

and announces a new principle, unless the decision

specifically declares the ruling to be prospective only,

the new rule is to be applied retroactively to cases

where the issue in question is properly preserved at

all stages of adjudication up to and including any

direct appeal.

Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983) (emphasis

added).

While appellant challenged his mandatory minimum sentence under

Section 9712.1 on direct appeal, his issue was not based upon Alleyne or

upon a similar theory. Nonetheless, appellant is still entitled to the

retroactive application of Alleyne.

In Commonwealth v. Roney, 866 A.2d 351 (Pa. 2005), cert.

denied, Roney v. Pennsylvania, 546 U.S. 860 (2005), our supreme court

reviewed the application of Apprendi v. New Jersey, 530 U.S. 466 (2000),

Apprendi or a similar theory had not been

2

The Commonwealth concedes that appellant

direct appeal. (Commonwealth brief at 8.)

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preserved below.3

premised upon Apprendi implicates the legality of that sentence, it cannot

Roney, 866 at 359, n.32. Thus, our supreme court

went on to examine Apprendi

that a challenge to a sentence premised upon Alleyne likewise implicates

the legality of the sentence and cannot be waived on appeal. Therefore, we

find that Alleyne may be applied retroactively to appellant.4 We now turn

Section 9712.1 unconstitutional under Alleyne.

We begin by noting the provisions of Section 9712.1 at issue:

§ 9712.1. Sentences for certain drug offenses

committed with firearms

(a) Mandatory sentence.--Any person who is

convicted of a violation of section 13(a)(30) of

the act of April 14, 1972 (P.L. 233, No. 64),

[FN1] known as The Controlled Substance,

Drug, Device and Cosmetic Act, when at the

accomplice is in physical possession or control

of a firearm, whether visible, concealed about

proximity to the controlled substance, shall

likewise be sentenced to a minimum sentence

of at least five years of total confinement.

3

Apprendi will be discussed infra.

4

Although not directly on point, another en banc panel of this court has

applied Alleyne retroactively. See Commonwealth v. Watley, 81 A.3d

108 (Pa.Super. 2013) (en banc), appeal denied, A.3d , 1033 MAL

(Pa. 2014).

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(c) Proof at sentencing.--Provisions of this

section shall not be an element of the crime,

and notice thereof to the defendant shall not

be required prior to conviction, but reasonable

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 any

evidence presented at trial and shall afford the

Commonwealth and the defendant an

opportunity to present any necessary

additional evidence and shall determine, by a

preponderance of the evidence, if this section

is applicable.

42 Pa.C.S.A. § 9712.1 (in pertinent part).

Under the sentencing scheme of Section 9712.1, possession of a

firearm is considered a sentencing factor to be determined by the trial court

upon a preponderance of the evidence, and not an element of the underlying

crime to be determined by the jury beyond a reasonable doubt. This sort of

sentencing scheme was deemed constitutional under a prior ruling of the

United States Supreme Court.

In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the United States

Supreme Court reviewed the constitutionality of another one of

§ 9712,

imprisonment for the visible possession of a firearm during the commission

of certain specified crimes of violence. Like Section 9712.1, Section 9712

provided that the visible possession was not an element of the crime, but

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was a sentencing factor to be determined by the trial court upon a

preponderance of the evidence. The McMillan court ruled that a state could

make visible possession of a firearm a sentencing factor rather than an

element of the underlying crime, and that the sentencing factor could be

proven by merely a preponderance of the evidence:

The Commonwealth appealed all four cases

[involving Section 9712] to the Supreme Court of

Pennsylvania. That court consolidated the appeals

and unanimously concluded that the Act is consistent

with due process. Commonwealth v. Wright, 508

argument was that visible possession of a firearm is

an element of the crimes for which they were being

sentenced and thus must be proved beyond a

reasonable doubt under In re Winship, 397 U.S.

358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and

Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881,

44 L.Ed.2d 508 (1975). After observing that the

legislature had expressly provided that visible

§ 9712(b), and that the reasonable-doubt standard

at 359, quoting Patterson v. New York, 432 U.S.

197, 211, n. 12, 97 S.Ct. 2319, 2327, n. 12, 53

L.Ed.2d 281 (1977), the court rejected the claim that

the Act effectively creates a new set of upgraded

Section 9712, which comes into play only after the

defendant has been convicted of an enumerated

felony, neither provides for an increase in the

maximum sentence for such felony nor authorizes a

separate sentence; it merely requires a minimum

sentence of five years, which may be more or less

than the minimum sentence that might otherwise

have been imposed. And consistent with Winship,

Mullaney, and Patterson

presumption as to any essential fact and places no

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the p

Pa., at 35, 494 A.2d, at 359.

....

Petitioners argue that under the Due Process

Clause as interpreted in Winship and Mullaney, if a

State wants to punish visible possession of a firearm

it must undertake the burden of proving that fact

beyond a reasonable doubt. We disagree. Winship

accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to

constitute the crime with

U.S., at 364, 90 S.Ct., at 1073. In Mullaney v.

Wilbur, we held that the Due Process Clause

reasonable doubt the absence of the heat of passion

on sudden provocation when the issue is properly

S.Ct., at 1892. But in Patterson, we rejected the

t beyond

a reasonable doubt. 432 U.S., at 214, 97 S.Ct., at

2329; see also id., at 207, 97 S.Ct., at 2325 (State

fact, the existence or nonexistence of which it is

willing to recognize as an exculpatory or mitigating

circumstance affecting the degree of culpability or

law placing on defendants charged with murder the

burden of proving the affirmative defense of extreme

emotional disturbance.

Patterson stressed that in determining what

facts must be proved beyond a reasonable doubt the

Clause requires the prosecution to prove beyond a

reasonable doubt all of the elements included in the

definition of the offense of which the defendant is

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Id., at 210, 97 S.Ct., at 2327 (emphasis

added).

....

We believe that the present case is controlled

by Patterson, our most recent pronouncement on

this subject, rather than by Mullaney. As the

Supreme Court of Pennsylvania observed, the

Pennsylvania Legislature has expressly provided that

visible possession of a firearm is not an element of

the crimes enumerated in the mandatory sentencing

statute, § 9712(b), but instead is a sentencing factor

that comes into play only after the defendant has

been found guilty of one of those crimes beyond a

reasonable doubt. Indeed, the elements of the

enumerated offenses, like the maximum permissible

penalties for those offenses, were established long

before the Mandatory Minimum Sentencing Act was

passed. While visible possession might well have

been included as an element of the enumerated

offenses, Pennsylvania chose not to redefine those

offenses in order to so include it, and Patterson

teaches that we should hesitate to conclude that due

process bars the State from pursuing its chosen

course in the area of defining crimes and prescribing

penalties.

McMillan, 477 U.S. at 83-86 (footnote omitted).

It was clear, however, that the McMillan decision was influenced by

minimum sentence and not the maximum:

The Court in Mullaney observed, with respect

to the main criminal statute invalidated in that case,

that once the State proved the elements which Maine

required it to prove beyond a reasonable doubt the

from a nominal fine to a mandatory life

421 U.S., at 700, 95 S.Ct., at 1890. In the present

case the situation is quite different. Of the offenses

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enumerated in the Act, third-degree murder, robbery

as defined in 18 Pa.Cons.Stat. § 3701(a)(1) (1982),

kidnaping, rape, and involuntary deviate sexual

intercourse are first-degree felonies subjecting the

§ 1103(1). Voluntary manslaughter and aggravated

assault as defined in § 2702(a)(1) are felonies of the

second degree carrying a maximum sentence of

10 years. § 1103(2). Section 9712 neither alters

the maximum penalty for the crime committed nor

creates a separate offense calling for a separate

penalty; it operates solely to limit the sentencing

ty within the

range already available to it without the special

finding of visible possession of a firearm.

Section

by raising to five years the minimum sentence which

may be imposed within the statutory plan. The

statute gives no impression of having been tailored

to permit the visible possession finding to be a tail

which wags the dog of the substantive offense.

the

offenses for which they are being punished that

Pennsylvania has in effect defined a new set of

upgraded felonies would have at least more

superficial appeal if a finding of visible possession

exposed them to greater or additional punishment,

cf. 18 U.S.C. § 2113(d) (providing separate and

greater punishment for bank robberies accomplished

it does not.

McMillan, 477 U.S. at 87-88 (footnote omitted).

Fourteen years after handing down McMillan, the United States

Supreme Court decided that the precepts of McMillan did not apply to

mandatory sentencing schemes that affected the maximum sentence. In

Apprendi v. New Jersey, the petitioner fired several shots into the home

of an African-American family, who had recently moved into the previously

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all-white neighborhood. The petitioner thereafter made a statement

indicating that his motivation had been racially based. At the time,

New

affected the maximum sentence. The petitioner eventually pleaded guilty,

and after a separate sentencing hearing, the trial court determined by a

motivated and that the hate crime enhancement applied. After the

New Jersey Supreme Court affirmed, the United States Supreme Court

granted certiorari.

The Apprendi court found that sentencing enhancements that affect

the maximum sentence must be determined by a jury beyond a reasonable

doubt:

The question whether Apprendi had a constitutional

right to have a jury find such [racial] bias on the

basis of proof beyond a reasonable doubt is starkly

presented.

Our answer to that question was foreshadowed

by our opinion in Jones v. United States, 526 U.S.

227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999),

construing a federal statute. We there noted that

Amendment and the notice and jury trial guarantees

of the Sixth Amendment, any fact (other than prior

conviction) that increases the maximum penalty for

a crime must be charged in an indictment, submitted

Id., at 243, n. 6, 119 S.Ct. 1215. The Fourteenth

Amendment commands the same answer in this case

involving a state statute.

....

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In sum, our reexamination of our cases in this

area, and of the history upon which they rely,

confirms the opinion that we expressed in Jones.

Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt. With

that exception, we endorse the statement of the rule

set forth in the concurring opinions in that case:

slature to remove

from the jury the assessment of facts that increase

the prescribed range of penalties to which a criminal

defendant is exposed. It is equally clear that such

facts must be established by proof beyond a

Apprendi, 530 U.S. at 475-476, 490.

The Apprendi court specifically disavowed that it was overruling

McMillan, but limited McMillan to cases that do not involve the imposition

of a sentence more severe than the statutory maximum. Apprendi, 530

U.S. at 487, n.13. Moreover, the Apprendi court clearly explained that it

constitutionally afoul:

That point applies as well to the constitutionally

McMillan, 477 U.S., at 86,

106 S.Ct. 2411 (noting that the sentencing factor-

visible possession of a firearm-

included as an element of the enumerated

e of the factor here, the relevant

inquiry is one not of form, but of effect -- does the

required finding expose the defendant to a greater

verdict? [FN19]

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[FN19] This is not to suggest that the

meaning. The term appropriately

describes a circumstance, which may be

either aggravating or mitigating in

character, that supports a specific

sentence within the range authorized by

guilty of a particular offense. On the

increase beyond the maximum

authorized statutory sentence, it is the

functional equivalent of an element of a

greater offense than the one covered by

squarely within the usual definition of an

See post, at

2368-2369 (THOMAS, J., concurring)

(reviewing the relevant authorities).

....

The preceding discussion should make clear

McMillan is likewise

misplaced. The differential in sentence between

what Apprendi would have received without the

finding of biased purpose and what he could receive

with it is not, it is true, as extreme as the difference

between a small fine and mandatory life

imprisonment. Mullaney, 421 U.S., at 700, 95 S.Ct.

1881. But it can hardly be said that the potential

-from 10 years to 20-has

no more than a nominal effect. Both in terms of

absolute years behind bars, and because of the more

severe stigma attached, the differential here is

unquestionably of constitutional significance. When

the evidence authorizes an increase in the maximum

punishment

McMillan, 477 U.S., at 88, 106 S.Ct. 2411.

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Apprendi, 530 U.S. at 494, 495.5

Following Apprendi, the United States Supreme Court made a notable

attempt to harmonize Apprendi and McMillan. In Harris v. United

States, 536 U.S. 545 (2002), the Court reviewed a federal statute that

operated much like the one in McMillan, providing greater and greater

minimum sentences if, during a crime involving violence or drug trafficking,

the actor possessed a firearm, brandished the firearm, or discharged the

preponderance of the evidence, that the petitioner had brandished a firearm

and increased his minimum sentence accordingly.

The Harris court first observed that the federal statute does not

indicate whether brandishing a firearm is an element of the underlying

offense or whether it is merely a sentencing factor, but that it would appear

5

Apprendi has hitherto found little application in Pennsylvania because of

the indeterminate sentencing scheme used here:

scheme, with its guidelines and suggested minimum

in its nature. Commonwealth v. Yuhasz, 592 Pa.

120, 923 A.2d 1111, 1117 (2007). Therefore, in

Pennsylvania, a sentence imposed for a given

conviction does not implicate Apprendi concerns

unless that sentence exceeds the applicable

statutory maximum.

Commonwealth v. Gordon, 942 A.2d 174, 182 (Pa. 2007), cert. denied,

Gordon v. Pennsylvania, 553 U.S. 1024 (2008).

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to be the latter. Harris, 536 U.S. at 552. In finding that McMillan was still

sound, the Harris court went on to distinguish McMillan and Apprendi:

Confident that the statute does just what

McMillan

argument that § 924(c)(1)(A)(ii) is unconstitutional

because McMillan is no longer sound authority.

Stare decisis

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,

405, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis,

J., dissenting), but the doctr

Welch v. Texas

Dept. of Highways and Public Transp., 483 U.S.

468, 494, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987).

Even in constitutional cases, in which stare decisis

concerns are less pronounced, we will not overrule a

Arizona

v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81

L.Ed.2d 164 (1984).

The special justification petitioner offers is our

decision in Apprendi, which, he says, cannot be

reconciled with McMillan. Cf. Ring v. Arizona, 536

U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)

(overruling Walton v. Arizona, 497 U.S. 639, 110

S.Ct. 3047, 111 L.Ed.2d 511 (1990), because

Walton and Apprendi

not find the argument convincing. As we shall

explain, McMillan and Apprendi are consistent

because there is a fundamental distinction between

the factual findings that were at issue in those two

cases. Apprendi said that any fact extending the

um

considered an element of an aggravated crime-and

thus the domain of the jury-by those who framed the

Bill of Rights. The same cannot be said of a fact

increasing the mandatory minimum (but not

extending the sentence beyond the statutory

judge to impose the minimum with or without the

finding. As McMillan recognized, a statute may

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reserve this type of factual finding for the judge

without violating the Constitution.

Harris, 536 U.S. at 556-557 (plurality).

As noted, on June 17, 2013, the United States Supreme Court

announced its decision in Alleyne v. United States. The petitioner in

Alleyne was challenging the same federal sentence enhancing statute as in

Harris. The petitioner and an accomplice robbed a bank manager at

gunpoint. The jury convicted the petitioner and indicated on the verdict slip

that he had possessed a firearm during a crime of violence, but did not

indicate that he had brandished the weapon. Nonetheless, the District Court

found by a preponderance of the evidence that the petitioner had, in fact,

brandished the firearm, and increased the minimum sentence accordingly.

The Court of Appeals affirmed, citing Harris.

The Alleyne court directly overruled Harris, and by implication,

McMillan also. The Alleyne court found no basis for distinguishing between

the floor and the ceiling of the sentencing range and found that raising the

floor aggravated the sentence that was imposed just as raising the ceiling

did, and that, therefore, any fact that served to aggravate the minimum

sentence must be found by a jury beyond a reasonable doubt:

Consistent with common-law and early

American practice, Apprendi concluded that any

e the prescribed range of penalties

elements of the crime. Id., at 490, 120 S.Ct. 2348

(internal quotation marks omitted); id., at 483,

n.

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defendant to a punishment greater than that

otherwise legally prescribed were by definition

that the Sixth Amendment provides defendants with

the right to have a jury find those facts beyond a

reasonable doubt. Id., at 484, 120 S.Ct. 2348.

While Harris limited Apprendi to facts increasing

the statutory maximum, the principle applied in

Apprendi applies with equal force to facts increasing

the mandatory minimum.

It is indisputable that a fact triggering a

mandatory minimum alters the prescribed range of

sentences to which a criminal defendant is exposed.

Apprendi, supra, at 490, 120 S.Ct. 2348; Harris,

536 U.S., at 575, 582, 122 S.Ct. 2406 (THOMAS, J.,

dissenting). But for a finding of brandishing, the

penalty is five years to life in prison; with a finding of

brandishing, the penalty becomes seven years to life.

Just as the maximum of life marks the outer

boundary of the range, so seven years marks its

floor. And because the legally prescribed range is

the penalty affixed to the crime, infra, this page, it

follows that a fact increasing either end of the range

produces a new penalty and constitutes an

ingredient of the offense. Apprendi, supra, at 501,

120 S.Ct. 2348 (THOMAS, J., concurring); see also

Bishop § 598, at 360 361 (

particular punishment to be inflicted on those who

commit it under special circumstances which it

those special circumstances must be specified in the

indictment (emphasis added)); 1 F. Wharton,

Criminal Law § 371, p. 291 (rev. 7th ed. 1874)

(similar).

It is impossible to dissociate the floor of a

sentencing range from the penalty affixed to the

crime. See Harris, supra, at 569, 122 S.Ct. 2406

(BREYER, J., concurring in part and concurring in

judgment) (facts increasing the minimum and facts

specified both the floor and ceiling of sentence

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ranges, which is evidence that both define the legally

prescribed penalty. See, e.g., supra, at 2158

2159; N.Y. Penal Code §§ 231 232, p. 70 (1882)

(punishment for first-degree robbery was 10 to

20 -degree robbery was

5 to 15 years); Va.Code ch. 192, §§ 1 2, p. 787

(2d ed. 1860) (arson committed at night was

punishable by 5 to 10 years; arson committed during

the day was 3 to 10 years). This historical practice

allowed those who violated the law to know,

ex ante, the contours of the penalty that the

legislature affixed to the crime and comports with

the obvious truth that the floor of a mandatory range

is as relevant to wrongdoers as the ceiling. A fact

that increases a sentencing floor, thus, forms an

essential ingredient of the offense.

Moreover, it is impossible to dispute that facts

increasing the legally prescribed floor aggravate the

punishment. Harris, supra, at 579, 122 S.Ct. 2406

(THOMAS, J., dissenting); [United States v.]

, 560 U.S. [218], at , 130 S.Ct. 2169

(THOMAS, J., concurring in judgment). Elevating the

low-end of a sentencing range heightens the loss of

empowered, by invoking the mandatory minimum, to

require the judge to impose a higher punishment

Apprendi, supra, at 522, 120

S.Ct. 2348 (THOMAS, J., concurring). Why else

would Congress link an increased mandatory

minimum to a particular aggravating fact other than

to heighten the consequences for that behavior?

See McMillan, 477 U.S., at 88, 89, 106 S.Ct. 2411

Harris, supra, at

580, 122 S.Ct. 2406 (THOMAS, J., dissenting). This

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.

Alleyne, 133 S.Ct. at 2160-2161 (underlining emphasis added).

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Thus, in Alleyne, the United States Supreme Court finally repudiated

the Apprendi and McMillan maximum sentence/minimum sentence

dichotomy. Plainly, Section 9712.1 can no longer pass constitutional

muster. It permits the trial court, as opposed to the jury, to increase a

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

firearm was in close proximity to the drugs. Under Alleyne, the possession

of the firearm must be pleaded in the indictment, and must be found by the

jury beyond a reasonable doubt before the defendant may be subjected to

an increase in the minimum sentence. As that is not the case instantly, we

nd for resentencing

without regard for any mandatory minimum sentence prescribed by

Section 9712.1.

The Commonwealth puts forward two arguments in response to

resentenced without regard to Section 9712.1. First the Commonwealth

argues that the United States Supreme Court has indicated that Apprendi

based claims (and by implication, Alleyne based claims also) are subject to

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harmless error analysis.6 See Washington v. Recuenco, 548 U.S. 212,

218-222 (2006), adopting the harmless error standard of Neder v. United

States, 527 U.S. 1 (1999).

In Neder, the trial court omitted from its jury instructions an element

of the crime of which the petitioner was charged and convicted:

Neder was indicted on, among other things,

9 counts of mail fraud, in violation of 18 U.S.C.

§ 1341; 9 counts of wire fraud, in violation of

§ 1343; 12 counts of bank fraud, in violation of

§ 1344; and 2 counts of filing a false income tax

return, in violation of 26 U.S.C. § 7206(1). The

fraud counts charged Neder with devising and

executing various schemes to defraud lenders in

connection with the land acquisition and

development loans, totaling over $40 million. The

tax counts charged Neder with filing false statements

of income on his tax returns. According to the

6

Pennsylvania, reflects the

Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994);

Commonwealth v. Story, 383 A.2d 155 (Pa. 1978). We have described

the proper analysis as follows:

Harmless error exists if the record demonstrates

either: (1) the error did not prejudice the defendant

or the prejudice was de minimis; or (2) the

erroneously admitted evidence was merely

cumulative of other untainted evidence which was

substantially similar to the erroneously admitted

evidence; or (3) the properly admitted and

uncontradicted evidence of guilt was so

overwhelming and the prejudicial effect of the error

was so insignificant by comparison that the error

could not have contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671-672 (Pa. 2014), quoting, in

part, Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997), cert.

denied, Hawkins v. Pennsylvania, 523 U.S. 1083 (1998).

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Government, Neder failed to report more than

$1 million in income for 1985 and more than

$4 million in income for 1986, both amounts

reflecting profits Neder obtained from the fraudulent

real estate loans.

In accordance with then-extant Circuit

Court instructed the jury that, to convict on the tax

used in th

Ibid. The court gave a

similar instruction on bank fraud, id., at 249, and

subsequently found, outside the presence of the

jury, that the evidence established the materiality of

all the false statements at issue, id., at 167. In

instructing the jury on mail fraud and wire fraud, the

District Court did not include materiality as an

element of either offense. Id., at 253 255. Neder

again objected to the instruction. The jury convicted

Neder of the fraud and tax offenses, and he was

supervised release, and $25 million in restitution.

Neder, 527 U.S. at 6.

The Neder court first decided that a harmless error analysis was

appropriate in most constitutional contexts. Neder, 527 U.S. at 8. The

Neder court then found that the failure to instruct the jury was harmless

because the evidence establishing materiality was overwhelming:

At trial, the Government introduced evidence

that Neder failed to report over $5 million in income

from the loans he obtained. The failure to report

such substantial income incontrovertibly establishes

determination of his income tax liability. The

evidence supporting materiality was so

overwhelming, in fact, that Neder did not argue to

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the jury and does not argue here that his false

statements of income could be found immaterial.

Instead, he defended against the tax charges by

arguing that the loan proceeds were not income

because he intended to repay the loans, and that he

reasonably believed, based on the advice of his

accountant and lawyer, that he need not report the

proceeds as income. App. 208 211, 235 (closing

argument). In this situation, where a reviewing

court concludes beyond a reasonable doubt that the

omitted element was uncontested and supported by

overwhelming evidence, such that the jury verdict

would have been the same absent the error, the

erroneous instruction is properly found to be

harmless. We think it beyond cavil here that the

Neder, 527 U.S. at 16-17.

Thus, in Neder, the jury made no finding on the element of

materiality, but the instruction error was harmless because if the jury had

been properly instructed, it would have undoubtedly found materiality

because the evidence of materiality was overwhelming. Instantly, the

mandatory minimum sentence was imposed because, under Section 9712.1,

contraband. Under Alleyne

to be submitted to the jury to make such a finding. The Commonwealth

argues that under Neder, we may regard the failure here to instruct the jury

was harmless because the evidence that the firearm and the drug

undoubtedly have reached that result.

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We cannot find that the error here was harmless, because the

overwhelming. As previously noted, the drug contraband was found in a

bathroom. The firearm was found under a mattress in a bedroom across the

hallway, and the actual distance between the contraband and the firearm

was six to eight feet. Recently, our supreme court discussed at length the

n Section 9712.1. See

Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013), generally. The

Hanson

imprecise and observed the differing conclusions as to its meaning both

among the courts of this Commonwealth and among the courts of other

jurisdictions. Hanson, 82 A.3d at 1037-1038, and otherwise, generally. If

rors would

The Commonwealth also raises a related argument, citing

Commonwealth v. Sanes, 955 A.2d 369, 377 (Pa.Super. 2008), appeal

denied, 972 A.2d 521 (Pa. 2009). The Commonwealth contends that the

jury would undoubtedly have found that appellant was in constructive

possession of the firearm and that any Alleyne error was harmless on this

nstructive

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possession of the firearm satisfies the possessory element/sentencing factor

of Section 9712.1 under Sanes.

Sanes did not hold that constructive possession satisfies the

possessory element/sentencing factor of Section 9712.1. The constructive

possession analysis in Sanes pertained to a weapon offense, 18 Pa.C.S.A.

§ 6105, of which the appellant was also convicted. In point of fact, as to

Section 9712.1, Sanes held that because there was no evidence that the

appellant was in actual physical possession or control of a firearm, or that a

firearm was within reach, the Commonwealth had to show that the firearm

was in close proximity to the drug contraband. Sanes then found that the

items were in close proximity.7 Sanes simply did not hold that constructive

possession of a firearm satisfied the possessory element/sentencing factor of

Section 9712.1.

On the other hand, the Hanson court analyzed Section 9712.1 at

length in an attempt to determine what constituted possession of a firearm

for purposes of Section 9712.1. After extensive legal analysis, the court

Accordingly, we hold that, for purposes of

means the knowing exercise of power over a

weapon, which may be proven through evidence of a

direct, physical association between the defendant

and the weapon or evidence of constructive control.

Constructive control, in this setting, an analogue to

7

Interestingly, the firearm that was found to be in close proximity to the

drug contraband in Sanes was six to eight feet apart.

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constructive possession, entails the ability to

exercise a conscious dominion and the intent to do

so.

Hanson, 82 A.3d at 1036-1037.8

Again, we find that if learned jurists can arrive at the meaning of

extensive analysis, there is no guarantee that a lay jury will undoubtedly

arrive at the same conclusion. This is especially so when operating under

legal constructs like constructive possession, which is foreign to lay persons,

and who may assume that when a statute requires possession it means only

actual possession. Even with instruction from a trial court, we cannot find

that the jury would likely reach the same result. Since we find no guarantee

that a jury would undoubtedly find under the evidence that appellant

possessed the firearm, we cannot find harmless error on this basis either.

The second argument put forward by the Commonwealth contends

that if we find Section 9712.1 unconstitutional under Alleyne, and that the

error was not harmless, then the proper remedy is to remand for the

empanelling of a sentencing jury for the determination, beyond a reasonable

doubt, as to whether the conditions obtain under the evidence such that a

mandatory minimum sentence should be imposed. Without directly arguing

the

8

We note that the Hanson court did not address the constitutionality of

Section 9712.1, but remanded for resentencing allowing the trial court to

address the applicability of Alleyne.

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Section 9712.1, which sets the predicate for the mandatory minimum

sentence, survives constitutional muster, and that only Subsection (c), which

directs that the trial court shall determine the predicate of Subsection (a) by

a preponderance of the evidence, fails. In other words, the Commonwealth

is contending that we may sever and retain those parts of Section 9712.1

that are not constitutionally infirm. This is also the position taken by Judge

Mundy in her concurring opinion. We respectfully disagree.9

Pennsylvania law provides for the severing of statutes where one part

of a statute is found unconstitutional:

9

As noted in dicta in Watley, Section 9712.1 is no longer constitutionally

sound in light of Alleyne. We disagree with the characterization by the

concurrence that Watley noted that only Section 9712.1(c) is

unconstitutional. Concurring Opinion at 3. Watley did not address the

issue of severing Section 9712.1; rather, it merely cataloged various

mandatory minimum sentencing provisions of which Section 9712.1(c)

happens to be one. Watley did not opine that only Section 9712.1(c) is

unconstitutional:

The Alleyne decision, therefore, renders those

Pennsylvania mandatory minimum sentencing

statutes that do not pertain to prior convictions FN3

constitutionally infirm insofar as they permit a judge

based on a preponderance of the evidence

standard.4

4. See e.g., 42 Pa.C.S. § 9712(c); 42 Pa.C.S.

§ 9712.1(c); 42 Pa.C.S. § 9713(c); 42 Pa.C.S.

§ 9718(c); 42 Pa.C.S. § 9719(b); 18 Pa.C.S.

§ 7508(b); 18 Pa.C.S. § 6317(b).

Watley, 81 A.3d at 117 n.4 (footnote 3 omitted).

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§ 1925. Constitutional construction of statutes

The provisions of every statute shall be severable. If

any provision of any statute or the application

thereof to any person or circumstance is held invalid,

the remainder of the statute, and the application of

such provision to other persons or circumstances,

shall not be affected thereby, unless the court finds

that the valid provisions of the statute are so

essentially and inseparably connected with, and so

depend upon, the void provision or application, that

it cannot be presumed the General Assembly would

have enacted the remaining valid provisions without

the void one; or unless the court finds that the

remaining valid provisions, standing alone, are

incomplete and are incapable of being executed in

accordance with the legislative intent.

1 Pa.C.S.A. § 1925.

We find that Subsections (a) and (c) of Section 9712.1 are essentially

and inseparably connected. Following Alleyne, Subsection (a) must be

regarded as the elements of the aggravated crime of possessing a firearm

while trafficking drugs. If Subsection (a) is the predicate arm of

Section

Subsection (c), there is no mechanism in place to determine whether the

predicate of Subsection (a) has been met.

g 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 Pennsylvania, there is a similar, bifurcated

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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.A.

§ 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.

Finally, we note that Alleyne and the possibility of severance of

Section 9712.1 have arisen in several of our courts of common pleas.10

Although we are not bound by those decisions, we find a review of their

analyses salutary:

Moving forward, the Commonwealth proposes that

of a firearm in connection with his alleged drug

offense be submitted on the verdict slip as a special

question for the jury.

Undoubtedly, the legislature intended to give

defendants who possess firearms in connection with

their drug offenses harsher penalties. However, the

legislature also intended those penalties to be

imposed according to a very specific procedure -- the

issue of firearm possession must be decided by the

judge, at sentencing, by a preponderance of the

evidence. The Commonwealth asks the Court to

have the issue of firearm possession decided by a

jury, at trial, beyond a reasonable doubt.

10

Under these cases, severing Section 9712.1 has been found to be

unworkable and the section has been ruled unconstitutional in its entirety.

These cases are currently before the supreme court on direct review.

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The Court recognizes the difficulty Alleyne has

caused and the creative solution the Commonwealth

offers in response. However, we find that the valid

provisions of § 9712.1 are so essentially and

inseparably connected with § 9712.1(c) that

severance is not possible. If the Court severs

§ 9712.1(c), we are left without a method of finding

the facts necessary to apply the mandatory minimum

sentence. Right now, the Court can only impose

§

using an unconstitutional procedure. At best, the

ion would have the court

arbitrarily pick which legislative directives to follow

while ignoring others. At worst, the Commonwealth

asks the Court to essentially rewrite the statute and

replace the unconstitutional procedure with a

procedure that has not been legislatively or

specifically judicially directed. It is clearly the

province of the legislature, not this Court, to make

such procedural determinations.

Commonwealth v. Shifler, No. CP-28-CR-0000263-2013, entered April 21,

2014, slip. op. at 16-17 (Judge Carol L. Van Horn, Franklin County), on

appeal at 42 MAP 2014.

simply substitute a trial by jury for the existing

language is appealing in its simplicity, the problem is

that we find it violates our constitutional principles

that underscore our system of government. The

overall effect of the Common Pleas decisions which

have found the provisions severable is to pick one

and decide that it is more important than the rest of

manner it did. Clearly, the [L]egislature in the

offending language that provided for a trial by judge

and a preponderance of the evidence test intended

to dictate the manner in which the facts that would

support a mandatory sentence were to be

determined. For the Court now to take on that

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important role and effectively take it away from the

[L]egislature with the stroke of a pen, or to attempt

to decide which parts of the statute were more

important to the [L]egislature, offends the

separation of powers that exist between the

branches of government.

Commonwealth v. Weyant, No. CP-07-CR-0000568, 574, 583-2013;

Commonwealth v. Morgan, No. CP-07-CR-0001029, 1032-2013, entered

June 9, 2014, slip op. at 17 (en banc, Blair County) (finding 42 Pa.C.S.A.

§ 9712.1, 18 Pa.C.S.A. § 6317 (drug free school zones), and 18 Pa.C.S.A.

§ 7508 (drug trafficking sentencing) unconstitutional and non-severable), on

appeal at 20-22 WAP 2014 and 23 WAP 2014, respectively.

While the Commonwealth clearly is correct that

unconstitutional provisions of a statute may be

in enacting that statute, the undersigned believes

that this simply is not possible in the instant

situation, where the constitutional and

unconstitutional provisions of the mandatory

minimum statutes are inextricably interwoven. In

imposition of mandatory minimum sentences, the

Commonwealth would have us ignore the

such sentences be found by a judge and not a jury;

that the defendant need not be informed of the

applicability of the mandatory sentence prior to

sentencing; and that the applicable standard be one

of preponderance of the evidence. The undersigned

believes it is for the legislature, and not this court, to

make such determinations. Further, and crucially,

unconstitutional provisions within the statutes, the

Commonwealth is essentially asking this court to

rewrite them, by imposing different burdens of proof

and notification than the legislature imposed.

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Commonwealth v. Khalil Brockington, No. CP-46-CR-0009311-2012;

Commonwealth v. Khalil A. Blakeney, No. CP-46-CR-0002521-2013;

Commonwealth v. William Bates, No. CP-46-CR-0000139-2013, entered

March 21, 2014, slip op. at 4-5 (Judge William J. Furber, Jr., Montgomery

bills of information to include factual allegations supporting mandatory

minimum sentences and finding 42 Pa.C.S.A. § 9712.1, 18 Pa.C.S.A. § 6317,

and 18 Pa.C.S.A. § 7508 unconstitutional and non-severable), on appeal at

36 MAP 2014, 37 MAP 2014, and 38 MAP 2014, respectively.

It would appear clear that the very trial courts entrusted with the

imposition of mandatory minimum sentences after Alleyne have found

Section 9712.1 as a whole to be no longer workable without legislative

guidance.

Accordingly, having found that Alleyne v. United States renders

42 Pa.C.S.A. §

of sentence and remand for the re-imposition of sentence without

consideration of any mandatory minimum sentence provided by

Section 9712.1.

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Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

Bender, P.J.E., Panella, J., Donohue, J., Allen, J., and Lazarus, J. join.

Mundy, J. files a Concurring Opinion in which Olson, J. joins and

Gantman, P.J. concurs in the result.

Gantman, P.J. and Olson, J. concur in the result of the majority

opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/20/2014

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