Commonwealth v. Vargas

J-E01004-14

2014 PA Super 289

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSE VARGAS,

Appellant No. 1415 EDA 2012

Appeal from the Judgment of Sentence of February 6, 2012

In the Court of Common Pleas of Bucks County

Criminal Division Docket No: CP-09-CR-0001895-2011

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

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

OPINION BY OLSON, J.: FILED DECEMBER 31, 2014

Appellant, Jose Vargas, appeals from the judgment of sentence

entered on February 6, 2012, as made final by the denial of Appellant’s post-

sentence motion on April 13, 2012. Although we affirm Appellant’s

convictions, we must vacate Appellant’s judgment of sentence and remand

for resentencing.

The trial court has provided us with a thorough and well-written

summary of the underlying facts. As the trial court explained:1

1

Within the trial court’s opinion, the trial court summarized the evidence

that was introduced at the June 6, 2011 pre-trial suppression hearing. We

note that there were slight differences between the evidence that was

(Footnote Continued Next Page)

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On November 3, 2010, at approximately 10:00 p.m.,

Officers David Clee and Matthew Tobie of the Bensalem

Township Police Department were patrolling the Route 1

corridor in Bensalem. [N.T. Trial, 10/17/11, at 9]. The

Route 1 corridor is considered a high-crime area, [and has

an] extensive history of arrests for offenses including

narcotics, robberies, prostitution[,] and other crimes at the

various hotels in the region. [Id. at 12].

In the course of their regular patrol, the [o]fficers pulled

[their marked patrol car] into the parking lot of the Sunrise

Inn on Route 1. . . . Officer Clee is specifically assigned to

patrol the Route 1 corridor. As such, he is personally

familiar with the crime that takes place in the area and has

made numerous arrests along the corridor, including arrests

at the Sunrise Inn. [Id. at 12]. Upon pulling into the

parking lot, the [o]fficers noticed a car with darkly tinted

windows parked in the parking lot. Officer Clee immediately

recognized that the tint was a violation of [75 Pa.C.S.A.

§ 4524(e)(1)2]. [Id. at 15-16].

As they approached the car, a Chevrolet Impala, Officer

Clee saw movement inside the vehicle[,] which he described

as someone moving from the front passenger’s side of the

vehicle to the driver’s side. [Id. at 15. Officer Clee decided

to investigate the vehicle. Id.] . . .

[Officer Clee] parked his patrol car[, exited his vehicle, and

approached the Chevrolet Impala. Id. at 15-16]. Officer

Clee then . . . began to question the driver. As [Officer Clee

was questioning the driver,] Officer Clee observed a

_______________________

(Footnote Continued)

introduced at trial and the evidence that was introduced during the

suppression hearing. Therefore, within this memorandum, we have

conformed the factual recitation to the evidence that was introduced during

the October 17, 2011 trial.

2

75 Pa.C.S.A. § 4524(e)(1) declares: “[n]o person shall drive any motor

vehicle with any sun screening device or other material which does not

permit a person to see or view the inside of the vehicle through the

windshield, side wing or side window of the vehicle.” 75 Pa.C.S.A.

§ 4524(e)(1).

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baseball cap sitting on the rear floor of the car. Inside the

baseball cap were several pieces of jewelry. From his

experience, Officer Clee recognized that a baseball cap full

of jewelry left in a safe place means the owner of the

jewelry anticipated one of two things: [that] he was about

to engage in a fight[] or that[,] as a drug dealer[,] he had a

fear of being robbed. [Id. at 18-19].

The occupant of the vehicle [was] later identified as Melvin

Torres [from Camden, New Jersey. During their

conversation, Torres] informed Officer Clee that he was not

the owner of the vehicle. [Id. at 14-16]. Officer Clee

questioned Torres in an attempt to ascertain the location of

the vehicle’s owner[] and to determine [Torres’] connection

to the hotel. Despite being questioned only about the

ownership of the vehicle, Torres appeared [“extremely

nervous”] and was evasive in his responses. . . . Id. at 16-

17].

After repeated questioning, Torres eventually told Officer

Clee that the vehicle’s owner . . . was in Room 161 of the

hotel. [Id. at 17]. . . . After Torres informed [Officer Clee]

that the owner of the [Chevrolet] Impala was in Room 161,

an individual opened the door to [Room 161] from within,

locked eyes with Officer Clee[,] and[, when Officer Clee

began to walk towards the room, the individual] quickly

closed the door. [Id. at 20]. While Officer Tobie remained

with Torres, . . . Officer Clee approached Room 161[,

“knocked on the door several times[,] and then made an

announcement outside that [he] was the police and [he]

was inquiring about the owner or operator of the Chevrolet

Impala that was occupied in the parking lot.” Id.]

Approximately [45] seconds passed before the door was

opened by a person later identified as . . . [Francisco]

Saldana. [Id. at 21].

Standing outside the room, Officer Clee observed [Saldana,]

Appellant[,] and [an individual who was later identified as

Raymer Carrasco] standing just inside the doorway. [Id.]

Officer Clee requested that each of the men produce

identification. [Officer Clee] noted that all three [men] were

from Camden, New Jersey. [Id. at 27]. None of the men

identified themselves as the owner of the [Chevrolet]

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Impala, and none would claim responsibility for renting the

hotel room. [Id. at 21-22]. . . .

From the doorway, Officer Clee looked around the room[

and observed “a Tupperware container, two trash bags, and

[] a black, . . . wheeled Tupperware container. Additionally,

the trash can was . . . full of items, and just between the

trash can and the wall was a small apple baggie.” 3 Id. at

23]. . . .

Acting on the belief, based on his experience, that there

might be other people [in the rear bathroom], and the fact

that the presence of the [a]pple bag[] indicated there might

be illegal activity occurring inside the hotel room, Officer

Clee entered the room [and] walk[ed] through the room[

towards the rear] hotel bathroom. [Id. at 26]. . . . As he

crossed the room, Officer Clee . . . observed at least one

portable lamp sticking out of a Tupperware container, in

addition to another Tupperware container and a large trash

bag. As he passed the trash bag, [Officer Clee] identified

more [a]pple bag[s]. Id. at 50. . . . [Further, Officer Clee

observed a trail of small rubber bands on the floor, with the

trail leading to the toilet, and then “two or three small

rubber[] bands in the toilet.” Id. at 26-27. Officer Clee

also noticed that the window in the bathroom was open, but

that the window was “extremely small, so [the officer] knew

that [none] of the three people standing at the door could

have got out of it.” Id. at 27]. . . .

Based on his observations, Officer Clee made the decision to

detain all four suspects: the individual from the [Chevrolet]

Impala and the three men from the hotel room. Once the

men were secured, the[ men] were searched[] and Raymer

Carrasco was found to be in possession of [heroin. The

heroin in Carrasco’s possession was packaged in “clear

plastic baggies wrapped in small rubber[] bands” and was

later determined to weigh 0.22 grams. Id. at 68; Berks

County Crime Laboratory Report, dated 11/23/10, at 1].

3

During the suppression hearing, Officer Clee testified that an “apple bag” is

a larger plastic bag that “normally contains 500 [] baggies” within it. N.T.

Suppression, 6/6/11, at 24.

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[A search of Appellant’s person revealed that Appellant

possessed car keys to a Honda vehicle; the police

discovered this Honda vehicle parked next to the Chevrolet

Impala in the Sunrise Inn lot. N.T. Trial, 10/17/11, at 29.

Further, when questioned as to whether Appellant had any

money on his person when he was searched, Officer Clee

testified: “I don’t recall any money being recovered in this

case.” Id. at 49-50.]

Officer Clee then applied for a search warrant for the hotel

room, the [Chevrolet] Impala[,] and [the] Honda

[automobile that was parked next to the Chevrolet Impala

(and to which Appellant possessed the keys)]. The four

suspects were transported to the police station and the

room was secured until a search warrant was obtained.

[Id. at 30].

Once the search warrant was obtained, all the evidence

located in the hotel room was brought back to the police

station to be inventoried. Inside the containers and

garbage bag located in the hotel room, police found [six

coffee] grinders [that were used to grind heroin], [coffee

filters that were used in the heroin-grinding process,] three

lamps, thousands of glassine baggies, several digital scales,

rubber stamps, wax paper[s that were stamped with brand-

insignia and that are ordinarily used to bag heroin], and

other items of drug paraphernalia. [Id. at 43-49]. All of

the grinders[, filters,] and scales tested positive for residue

of heroin or cocaine. [Id.; see also Bucks County Crime

Laboratory Report, dated 12/13/10, at 1. Moreover, e]mpty

condom[s] . . . were found in the hotel trash can. [N.T.

Trial, 10/17/11, at 47]. [None of the four individuals were

the named renter of the hotel room; none of the four

individuals possessed any “luggage or overnight bags.” Id.

at 21-22, 31, and 50].

The cars were [] transported to the [police] station so [that]

they could be searched. The officers located a concealed

compartment in the dashboard of the [Chevrolet] Impala

that contained a .40-caliber handgun and [377.73 grams of

uncut heroin, some of which was packaged in rubber

condoms “for transportation in a human body.” Id. at 32-

35; see also Bucks County Crime Laboratory Report, dated

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11/23/10, at 1. Officer Clee testified that the heroin-filled

condoms were “extremely similar” to the empty condoms

that were found in the hotel room trash can. N.T. Trial,

10/17/11, at 47. In like fashion, Commonwealth expert,

Detective Timothy Carroll, also testified that the heroin-

filled condoms found in the Chevrolet Impala were “very

similar, if not identical” to the “used empty condom[s]” that

were found in the hotel room. Id. at 90-91. Further, within

the Chevrolet Impala, the police discovered an “owe sheet”4

in the vehicle’s trunk, as well as an additional ledger that

was sitting on the vehicle’s front seat. Id. at 36]. . . .

[Saldana] was identified as the person responsible for the

[Chevrolet] Impala. [Id. at 22]. Although no illegal

substances or contraband of any sort were found in the

Honda [to which Appellant possessed the keys], when

Officer Clee introduced his trained narcotics dog to the

[Honda, the dog] alerted to the presence of an illegal

substance. [Id. at 28-30]. The K-9 also alerted to the

presence of an illegal substance in the [Chevrolet] Impala,

which was consistent with the findings of the search. [Id.]

On November 4, 2010, Appellant was charged with [a

number of crimes, including possession of a controlled

substance with the intent to deliver (hereinafter “PWID”),

possession of a controlled substance, possession of drug

paraphernalia, and criminal conspiracy.]

Trial Court Opinion, 7/10/12, at 1-6 (internal citations omitted).

On August 18, 2011, Commonwealth provided Appellant with notice

that, in the event Appellant was convicted of PWID, the Commonwealth

intended to seek the five-year mandatory minimum sentence under 18

Pa.C.S.A. § 7508(a)(7)(iii), because “the aggregate weight of the compound

4

Officer Clee testified that “[a]n owe sheet is a record that someone is

owing them money for anything. These sheets, specifically the items

recovered in the trunk of the vehicle, appear to be daily amounts that people

are making off a corner for ounces and grams of something.” N.T. Trial,

10/17/11, at 60.

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or mixture containing the heroin [was] 50 grams or greater.” 18 Pa.C.S.A.

§ 7508(a)(7)(iii).

On October 17, 2011, Appellant proceeded to a bench trial, where the

Commonwealth presented the above-summarized evidence. Moreover,

during trial, Appellant stipulated to the authenticity and accuracy of a Bucks

County Crime Laboratory report, which declared that the substance in Mr.

Saldana’s vehicle was heroin and that the heroin in Mr. Saldana’s vehicle

weighed 377.73 grams.5 N.T. Trial, 10/17/11, at 39-41; Bucks County

Crime Laboratory Report, dated 11/23/10, at 1.

During trial, the Commonwealth presented the testimony of Detective

Timothy Carroll, whom the trial court accepted as an expert in the field of

narcotics trafficking. Detective Carroll testified that – based upon his

training, education, and experience, and upon the evidence of the case – all

of the heroin in this case was possessed with the intent to deliver. N.T.

Trial, 10/17/11, at 87. Indeed, Detective Carroll testified that the operation

in the hotel room constituted a “mobile heroin mill,” where the defendants

cut raw heroin and proceeded to weigh and package the cut heroin into the

small wax baggies. Id. at 87-88. As Detective Carroll testified:

This is a matter, your Honor, really of a portable or mobile

heroin mill. This heroin was possessed with the intent to

5

Appellant also stipulated to the chain of custody regarding all of the items

that were tested by the Bucks County Crime Laboratory. N.T. Trial,

10/17/11, at 39-40.

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package into these wax paper bags. It’s also obvious that

some of it had been packaged and probably had left the

room prior to that. The pellets are evidence of the actual

raw heroin that was brought to the room. There is mannitol

present, which would be used as cut to adulterate the

heroin before it’s packaged in those small blue wax baggies,

and there’s presence of actual new unstamped bags as well

as stamped bags that are packaged and unpackaged and

there’s the presence of the actual stamps and heat sealers.

There is a plethora of evidence, really . . . that shows this is

really a heroin mill.

N.T. Trial, 10/17/11, at 87-88.

Detective Carroll testified that, judging from the paraphernalia and

residue that was discovered in the hotel room, the defendants had probably

cut and packaged “thousands of bags of heroin” before the police arrived;

the detective testified that the bags of cut heroin had then “left the [hotel]

room” for ultimate sale “at the street level.” Id. at 87, 89, and 90.

With respect to the remaining 377.73 grams of raw, uncut heroin that

was discovered in Mr. Saldana’s vehicle, Detective Carroll testified:

A gram of heroin is usually broken down into about 35 of

these heroin packets. Those heroin packets retail for about

$10[.00] a piece. Of course, they discount by quantity; if

you buy a bundle you pay maybe 60 percent on the dollar.

I believe there were 376[6] grams [of uncut heroin left]. If

you do the math, you’re talking about 13,000 baggies that

6

As noted above, Appellant stipulated to the authenticity and accuracy of

the Bucks County Crime Laboratory report, which declared that the

substance in Mr. Saldana’s vehicle was heroin and that the heroin weighed

377.73 grams. N.T. Trial, 10/17/11, at 39-41. Appellant also stipulated to

the chain of custody regarding the items that were tested. Id. at 39-40.

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possibly could have been produced here in this mill from

what was left, what was discovered by the police, not

counting the cut and not counting what was apparently

already packaged.

Id. at 92.

Detective Carroll testified that the approximate street value of the

seized heroin was “well over a hundred thousand dollars.” Id.

During trial, the Commonwealth also introduced a surveillance video of

the hotel parking lot, which was recorded on November 3, 2010. N.T. Trial,

10/17/11, at 41-42. As the video showed, at 10:03 p.m. on the night in

question, Mr. Saldana drove his Chevrolet Impala into Sunrise Inn parking

lot.7 See N.T. Suppression Hearing, 6/6/11, at 13.8 After parking his

vehicle, Mr. Saldana exited the car carrying nothing, and walked empty-

handed towards Room 161. Id. at 13-14. Mr. Saldana then knocked on the

door to Room 161, and someone from inside Room 161 opened the door to

allow Mr. Saldana entry into the hotel room. Id. Approximately one minute

later, Officers Clee and Tobie drove their patrol car into the Sunrise Inn

parking lot, and the above-summarized events transpired. Id. at 14-18.

7

The surveillance video began at 10:00 p.m. and ended two hours later, at

12:00 a.m.

8

During Appellant’s trial, the parties stipulated to the admissibility of the

surveillance video. N.T. Trial, 10/17/11, at 41-42. The parties also agreed

that the surveillance video admitted at trial was “the same video” the trial

court viewed during the June 6, 2011 suppression hearing. Id. at 42.

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The trial court found Appellant guilty of PWID, possession of a

controlled substance, possession of drug paraphernalia, and criminal

conspiracy.9 Id. at 111. On February 6, 2012, the trial court sentenced

Appellant to serve the mandatory minimum sentence of five to ten years in

prison for PWID, in accordance with 18 Pa.C.S.A. § 7508(a)(7)(iii).10 N.T.

Sentencing, 2/6/12, at 32.

On February 16, 2012, Appellant filed a timely post-sentence motion.

Following a hearing, the trial court denied Appellant’s motion and Appellant

filed a timely notice of appeal to this Court.

Within Appellant’s initial brief on appeal, Appellant claimed that the

evidence was insufficient to support his convictions and that the trial court

erred when it sentenced him to serve the mandatory minimum term under

18 Pa.C.S.A. § 7508(a)(7)(iii). Over the dissent of the Honorable Mary Jane

Bowes, a three-judge panel of this Court initially concluded that the evidence

was insufficient to sustain Appellant’s convictions. Commonwealth v.

Vargas, 1415 EDA 2012 (Pa. Super. filed July 8, 2013) (unpublished

memorandum) (withdrawn) at 15-19. According to the panel majority, the

Commonwealth had not proven that Appellant constructively possessed the

9

35 P.S. § 780-113(a)(30), (16), and (32), and 18 Pa.C.S.A. §§ 903(a),

respectively.

10

The trial court also sentenced Appellant to serve a concurrent term of ten

years’ probation for the conspiracy conviction.

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contraband in either the hotel room or Mr. Saldana’s vehicle. The panel

majority also held that the Commonwealth had failed to prove that Appellant

conspired to commit any crime. Rather, the panel majority held, the

Commonwealth had merely proven Appellant’s “presence in the hotel room”

and Appellant’s “shared access to [the] drug-packaging paraphernalia” in the

hotel room. Id. at 19.

In her comprehensive and well-written dissent, Judge Bowes argued

that, in reaching its decision, the panel majority had disregarded our

standard of review, taken a myopic view of the Commonwealth’s evidence,

failed to draw all reasonable inferences from the evidence in favor of the

Commonwealth as the verdict winner, and re-weighed the evidence in

Appellant’s favor. As Judge Bowes wrote:

This is not a case where the evidence is so weak and

inconclusive that no probability of fact can be drawn from

the combined circumstances. . . . Here, viewing the

evidence in a light most favorable to the Commonwealth,

thereby giving it the benefit of the reasonable inferences

derived therefrom, the pertinent proof is sufficient to

establish the aforementioned crimes. Appellant was inside

a [hotel] room with two other individuals while a third

person remained outside in a Chevy Impala with a New

Jersey license plate. The person in the Impala had

indicated to police that the owner of the car was in the

[hotel] room where police located Appellant. Police secured

a search warrant for the [hotel] room and found four bags

of heroin on another individual who was in the hotel room

with Appellant. Also, police observed a large [Ziploc] bag

that ordinarily contains smaller [Ziploc] bags, which one

officer described as being used almost exclusively for the

packaging of narcotics. Rubber bands, frequently used in

packaging drugs, were found floating in the toilet, which

appeared to have been flushed just before police arrived.

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Drug sniffing dogs performed a sniff on the outside of both

Appellant’s car and the Impala, which belonged to Francisco

Saldana, one of the men who was inside the [hotel] room

with Appellant. The dog alerted on both cars. Police then

obtained a search warrant for the vehicles. Inside Mr.

Saldana’s car, police found a bag containing over 370 grams

of heroin and a loaded .40 caliber semi-automatic pistol.

These items were located in a secret compartment in the

vehicle. Part of the drugs found in Mr. Saldana’s vehicle

were packaged in balloon and condom-like wrappers. . . .

Inside the hotel room, an industrial-sized trash bag and

large blue plastic containers were seized. The bag and

containers as well as a trash can in the room contained

numerous items used to package heroin, including rubber

stamps, wax paper, digital scales, empty condom wrappers

similar if not identical to those used to package the drugs in

Mr. Saldana’s car, thousands of one-inch-by-one-inch

[Ziploc] bags, grinders, and lamps. The trash bag and

plastic containers were on the floor of the [hotel] room and

were not hidden. Six grinders and two scales tested

positive[] for either cocaine or heroin residue. Additional

packaging in the room tested positive[] for heroin residue.

A surveillance video of Mr. Saldana entering the [hotel]

room showed that he had arrived at the hotel shortly before

[the] police and had entered the [hotel] room without any

of the plastic containers or trash bag. No luggage or bags

were located in Appellant’s vehicle. Expert testimony was

introduced that the materials recovered indicated a mobile

heroin packaging mill.

Only by setting aside our standard of review can this

evidence be viewed as Appellant merely being present while

others were packaging heroin for purposes of distribution.

Commonwealth v. Vargas, 1415 EDA 2012 (Pa. Super. filed July 8, 2013)

(unpublished memorandum) (Bowes, J., dissenting) (withdrawn) at 2-4.

The Commonwealth filed an application for reargument and, on

September 13, 2013, this Court granted the Commonwealth’s application.

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We thus withdrew the prior panel decision and listed the case for en banc

consideration. Order, 9/13/13, at 1. Appellant now raises the following

claims to this Court:

[1.] Where the evidence at trial established only that

[Appellant] was merely present in a hotel room where drug-

packaging paraphernalia was recovered, was the evidence

sufficient to sustain the verdict[]?

[2.] Did the [trial court] err by imposing the mandatory

minimum [sentence] under [18 Pa.C.S.A. § 7508] where

the controlled substance in question was not in the actual or

constructive possession of [Appellant]?

Appellant’s Brief at 5.

Appellant first claims that the evidence was insufficient to support his

convictions. Appellant’s claim is based entirely upon his contention that the

evidence “only showed [] Appellant’s mere presence in [the] hotel room.”

Appellant’s Brief at 8. According to Appellant, since “the Commonwealth’s

evidence established nothing more [than] presence alone in conjunction with

access to the contraband[, the Commonwealth] did not establish that

Appellant was in possession of the drugs . . . [and the Commonwealth] also

failed to demonstrate that [] Appellant was part of a conspiracy.” Id. at 13

and 15.

Appellant’s claim fails. Viewing the evidence in the light most

favorable to the Commonwealth as the verdict winner, the evidence in this

case was sufficient to show that: Appellant constructively possessed the

heroin residue and drug paraphernalia that was discovered in the “heroin

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mill” of a hotel room; Appellant was engaged in an active, ongoing

conspiracy with Messrs. Saldana and Carrasco – the purpose of which was to

cut and package raw heroin “for sale at the street level;” as part of the

conspiracy, Appellant, Mr. Saldana, and Mr. Carrasco intended to cut and

package the 377.73 grams of raw, uncut heroin that was discovered in Mr.

Saldana’s vehicle; and, as a member of the ongoing conspiracy with Mr.

Saldana, Appellant is criminally liable for the substantive offense of

possessing the 377.73 grams of raw, uncut heroin that was discovered in Mr.

Saldana’s vehicle.

We review Appellant’s sufficiency of the evidence claim under the

following standard:

The standard we apply in reviewing the sufficiency of the

evidence is whether viewing all the evidence admitted at

trial in the light most favorable to the verdict winner, there

is sufficient evidence to enable the fact-finder to find every

element of the crime beyond a reasonable doubt. In

applying the above test, we may not weigh the evidence

and substitute our judgment for [that of] the fact-finder. In

addition, we note that the facts and circumstances

established by the Commonwealth need not preclude every

possibility of innocence. Any doubts regarding a

defendant’s guilt may be resolved by the fact-finder unless

the evidence is so weak and inconclusive that as a matter of

law no probability of fact may be drawn from the combined

circumstances. The Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable

doubt by means of wholly circumstantial evidence.

Moreover, in applying the above test, the entire record must

be evaluated and all evidence actually received must be

considered. Finally, the trier of fact while passing upon the

credibility of witnesses and the weight of the evidence

produced, is free to believe all, part or none of the

evidence.

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Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806

(Pa. Super. 2008).

At the outset, we reject Appellant’s claim that the evidence was

insufficient to prove that Appellant constructively possessed the heroin

residue and drug paraphernalia in the hotel room.

“In narcotics possession cases, the Commonwealth may meet its

burden by showing actual, constructive, or joint constructive possession of

the contraband.” Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa.

Super. 1981). Actual possession is proven “by showing . . . [that the]

controlled substance [was] found on the [defendant’s] person.”

Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983). If the

contraband is not discovered on the defendant’s person, the Commonwealth

may satisfy its evidentiary burden by proving that the defendant had

constructive possession of the drug. Id.

Our Supreme Court has defined constructive possession as “the ability

to exercise a conscious dominion over the illegal substance: the power to

control the contraband and the intent to exercise that control.” Macolino,

469 A.2d at 134. In the words of our Supreme Court, “constructive

possession is a legal fiction, a pragmatic construct to deal with the realities

of criminal law enforcement.” Commonwealth v. Johnson, 26 A.3d 1078,

1093 (Pa. 2011) (internal quotations, citations, and corrections omitted). It

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is a “judicially created doctrine . . . [that] enables law enforcement officials

to prosecute individuals in situations where the inference of possession is

strong, yet actual possession at the time of arrest cannot be shown.” Mark

I. Rabinowitz, Note, Criminal Law Constructive Possession: Must the

Commonwealth Still Prove Intent? – Commonwealth v. Mudrick, 60 TEMPLE

L.Q. 445, 499-450 (1987).

To find constructive possession, the power and intent to control the

contraband does not need to be exclusive to the defendant. Our Supreme

Court “has recognized that constructive possession may be found in one or

more actors where the item [at] issue is in an area of joint control and equal

access.” Johnson, 26 A.3d at 1094 (internal quotations, citations, and

corrections omitted). Nevertheless, “where more than one person has equal

access to where drugs are stored, presence alone in conjunction with such

access will not prove conscious dominion over the contraband.”

Commonwealth v. Davis, 480 A.2d 1035, 1045 (Pa. 1984) (emphasis

omitted).

For the Commonwealth to prove constructive possession where more

than one person has access to the contraband, “the Commonwealth must

introduce evidence demonstrating either [the defendant’s] participation in

the drug related activity or evidence connecting [the defendant] to the

specific room or areas where the drugs were kept.” Commonwealth v.

Ocasio, 619 A.2d 352, 354-355 (Pa. Super. 1993). However, “[a]n intent

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to maintain a conscious dominion may be inferred from the totality of the

circumstances . . . [and] circumstantial evidence may be used to establish a

defendant’s possession of drugs or contraband.” Macolino, 469 A.2d at

134-135 (internal citations omitted). Moreover, we agree with the

statement from the United States Court of Appeals for the Tenth Circuit that,

although “mere presence” at a crime scene cannot alone sustain a conviction

for possession of contraband:

a jury need not ignore presence, proximity and association

when presented in conjunction with other evidence of guilt.

Indeed, presence at the scene where drugs are being

processed and packaged is a material and probative factor

which the jury may consider. Drug dealers of any size and

[illegal drug] manufacturers probably are reticent about

allowing the unknowing to take view of or assist in the

operation.

United States v. Robinson, 978 F.2d 1554, 1157-1158 (10th Cir. 1992)

(internal quotations and citations omitted); see also Rivas v. United

States, 783 A.2d 125, 138 (D.C. 2001) (en banc) (“a claim of innocent

presence becomes decidedly less plausible in an environment (vehicular or

otherwise) that is rife with evidence of ongoing drug production or

distribution, such as a manufacturing or cutting facility, a warehouse, or a

staging or preparation area where a large quantity of drugs or drug

paraphernalia is exposed to view”); United States v. Batista-Polanco, 927

F.2d 14, 18 (1st Cir. 1991) (casting doubt upon the “hypothesis that

participants in a [large-scale heroin packaging] scheme would permit a

noncontributing interloper to remain for an extended period of time in a

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small apartment while their conspicuous criminal conduct continued

unabated [since s]uch is not normally the conduct that one would expect of

conspirators engaged in conduct which by its nature is kept secret from

outsiders”) (internal quotations, citations, and corrections omitted); United

States v. Staten, 581 F.2d 878, 885 n.67 (D.C. Cir. 1978) (“[i]t would

seem that the voluntary presence of the accused in an area obviously

devoted to preparation of drugs for distribution is a circumstance potently

indicative of his involvement in the operation”).

Viewing the evidence in the light most favorable to the

Commonwealth, the evidence in the case at bar was sufficient to prove that

Appellant constructively possessed the heroin residue and the drug

paraphernalia that was discovered in the hotel room. Indeed, a review of

the totality of the circumstances reveals the following facts and permissible

inferences, which – taken together – are sufficient to prove that Appellant

possessed “the power to control the contraband [in the hotel room] and the

intent to exercise that control.” Macolino, 469 A.2d at 134.

First, Appellant was caught in a single, open hotel room, with drug-

cutting and drug-packaging material strewn about the room, in plain view.

Taken together, these circumstances furnished a sound basis for the fact-

finder to reject the claim that Appellant was unaware of the substantial

heroin-cutting and heroin-packaging operation that was occurring within his

midst, in the confined space of a hotel room.

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Second, the Commonwealth introduced expert testimony that the

operation in the hotel room constituted a multi-person “mobile heroin mill” –

where raw heroin was cut, weighed, and then packaged into baggies for sale

“at the street level.” N.T. Trial, 10/17/11, at 87, 89, and 90. As the Tenth

Circuit has explained, Appellant’s presence in the middle of such an

operation is highly probative and supports the inference that Appellant was

an active participant in the activity. Indeed, as the Tenth Circuit explained,

it is common knowledge that “[d]rug dealers of any size and [illegal drug]

manufacturers probably are reticent about allowing the unknowing to take

view of or assist in the operation.” Robinson, 978 F.2d at 1157-1158.

Third, Appellant’s “mere presence” claim is further undercut by the

fact that he was caught in a hotel room – rather than in an individual’s

residence – and that no luggage was found in the hotel room or in

Appellant’s vehicle. These facts support a permissible inference that the

hotel room was being used for one purpose: a mobile heroin mill. These

facts also support a permissible inference that Appellant was not merely

visiting the individuals in the hotel room (as he might if the operation had

been conducted in one of the individuals’ residences) but that Appellant was

an active participant in the only activity that was being conducted in the

room: the cutting and packaging of heroin.

Fourth, and on a related note, there is no evidence that the hotel room

was being used as a place for the illegal sale of heroin. Most tellingly, there

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was no evidence that the police seized any money in this case. See N.T.

Trial, 10/17/11, at 1-112. Further, at trial, Officer Clee was asked whether

“any money [was] found on [Appellant’s] person” during the search; Officer

Clee answered: “I don’t recall any money being recovered in this case.” Id.

at 49-50. Admittedly, under a de novo standard of review, a fact-finder

could ascribe a variety of different meanings to Officer Clee’s answer,

including that Officer Clee actually did not remember whether any money

was recovered in this case. We observe, however, that “I don’t recall” is a

common idiomatic expression, which means “no.” See, e.g., S.E.C. v.

Woodruff, 778 F.Supp.2d 1073, 1094 n.24 (D.Colo. 2011) (recognizing the

idioms “I don’t believe” and “I don’t recall”). Since our review of Appellant’s

sufficiency of the evidence challenge requires that we interpret Officer Clee’s

answer in the light most favorable to the Commonwealth, we view Officer

Clee’s answer as supporting the conclusion that Appellant possessed no

money at the time he was searched and that no money was found in the

hotel room. Thus, when combined with the actual evidence in the case

(which demonstrates that the police recovered no money from Appellant,

Appellant’s co-defendants, or the hotel room), Officer Clee’s testimony

further negates any suggestion that Appellant was present in the hotel room

merely to purchase the heroin.

Fifth, the evidence at trial supports the inference that Appellant was,

at the very least, complicit in the destruction of evidence. At trial, Officer

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Clee testified that, when he was questioning Mr. Torres in the parking lot, he

noticed an individual open the door to Room 161 and look directly at the

officer. N.T. Trial, 10/17/11, at 20. Officer Clee testified that, right when he

began to walk towards the room, the individual shut the door. Id. In

response, Officer Clee testified that he approached Room 161, “knocked on

the door several times[,] and then made an announcement outside that [he]

was the police and [he] was inquiring about the owner or operator of the

Chevrolet Impala that was occupied in the parking lot.” Id. Officer Clee

testified that it took approximately 45 seconds for Mr. Saldana to open the

door to the small hotel room – and that, when Officer Clee entered the

room, the officer discovered a trail of small rubber bands on the floor, with

the trail leading to the toilet, and then “two or three small rubber[] bands in

the toilet.” Id. at 20-21.

Viewing this evidence in the light most favorable to the

Commonwealth, the evidence supports the inference that the individuals in

the hotel room flushed some of the contraband down the toilet. Moreover,

even if Appellant did not actively take part in flushing the contraband down

the toilet, Appellant’s failure to answer the door when Officer Clee knocked –

while his compatriots flushed the contraband down the toilet – demonstrates

that Appellant was, at the very least, complicit in the destruction of

evidence.

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Sixth, the evidence at trial supports the inference that Appellant

brought all of the drug-cutting and drug-packaging paraphernalia to the

hotel room in the Honda automobile. At trial, Officer Clee testified that a

search of the three individuals in the hotel revealed that the individuals only

possessed vehicle keys to two cars: the Honda vehicle and the Chevrolet

Impala. Appellant possessed the vehicle keys to the Honda and video

evidence revealed that Mr. Saldana operated the Chevrolet Impala. N.T.

Trial, 10/17/11, at 22 and 29.

Officer Clee testified that a trained narcotics dog alerted to the

presence of narcotics on both the Honda and the Chevrolet Impala – and,

while heroin was discovered in Mr. Saldana’s Chevrolet Impala, no narcotics

were discovered in the vehicle to which Appellant possessed the keys. Id. at

28-30. Nevertheless, the narcotics and the large amounts of paraphernalia

in the hotel room needed to get into the room some way and surveillance

video demonstrated that, when Mr. Saldana arrived at the hotel in his

Chevrolet Impala, Mr. Saldana parked his vehicle in the lot and walked

empty-handed into the hotel room.

Viewing this evidence in the light most favorable to the

Commonwealth, it was permissible for the fact-finder to infer that the dog

alerted to Appellant’s vehicle because Appellant brought much, if not all, of

the drug-cutting and drug-packaging paraphernalia into the hotel room –

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and, therefore, that Appellant constructively possessed the contraband found

in the hotel room.

From the above, it is apparent that the Commonwealth’s case against

Appellant was based upon far more than Appellant’s “mere presence in [the]

hotel room.” See Appellant’s Brief at 8. Indeed, viewing the evidence in the

light most favorable to the Commonwealth, the evidence is sufficient to

support the trial court’s conclusion that Appellant was an active participant

in the drug-cutting and drug-packaging operation that was being conducted

in the hotel room – and that Appellant possessed both “the power to control

the contraband [in the hotel room] and the intent to exercise that control.”

Macolino, 469 A.2d at 134.

We note that, within Appellant’s brief to this Court, Appellant claims

that the factual pattern of this case is “strikingly analogous” to the factual

pattern of Commonwealth v. Ocasio. 619 A.2d 352 (Pa. Super. 1993).

According to Appellant, since the Ocasio Court held that the evidence was

insufficient to show that the defendant constructively possessed the

contraband, we must likewise conclude that the evidence was insufficient to

support Appellant’s convictions. Appellant’s Brief at 12-14. Appellant’s

argument fails because the underlying facts in Ocasio were far less

incriminating than the facts in the case at bar.

In Ocasio, the police executed a search warrant for 2128 North

Second Street, in Philadelphia. The residence was a multi-bedroom house,

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which housed multiple residents. Ocasio, 619 A.2d at 353. During the

ensuing search, the police heard one of the co-defendants declare, in

Spanish, “it’s in the trash.” Id. A search of the kitchen trashcan uncovered

12 baggies containing 567 vials of crack cocaine. Id. The police searched

the rest of the house and discovered: in a third floor bedroom, “a baggie

containing a large chunk of crack cocaine” and $5,882.00; in the basement,

“a triple beam scale, one baggie containing numerous empty clear plastic

vials with gray and black caps, two strainers, and one baggie containing

numerous empty clear smaller packets;” and, in an unspecified area of the

house, a plastic grinding apparatus and “a substance commonly used to

dilute or ‘cut’ cocaine before selling it.” Id.

Mr. Ocasio returned home during the search and the officers on scene

arrested him. A search of Mr. Ocasio’s person revealed $422.00 in small

denominations and a driver’s license, which declared that Mr. Ocasio’s

residence was 2128 North Second Street. Id. A jury subsequently found

Mr. Ocasio guilty of PWID and criminal conspiracy.

On appeal, Mr. Ocasio claimed that the evidence proved only his

“presence” in the house and that the Commonwealth thus failed to prove he

constructively possessed the contraband. We agreed with Mr. Ocasio and

vacated his convictions. Id.

Within our Opinion, we noted that Mr. Ocasio “was present at the

scene of the crime and, as a resident, had access to the drugs in the house.”

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Id. at 354. We explained, however, that since other individuals had equal

access to the drugs in the house, the Commonwealth was required to prove

more than Mr. Ocasio’s “mere presence” in the house. Id. Rather, we held

that the Commonwealth needed to introduce evidence “demonstrating either

[Mr. Ocasio’s] participation in the drug related activity or evidence

connecting [Mr. Ocasio] to the specific room or areas where the drugs were

kept.” Id. at 354-355.

We concluded that the Commonwealth failed its burden, as “[t]he only

evidence linking [Mr. Ocasio] to any drug related activity [was] the $422[.00

in] cash found in his pocket at the time of his arrest” – and this limited

evidence was insufficient to prove that Mr. Ocasio was involved in drug sales

or in the drug packaging and distribution that was occurring at the residence

where the warrant had been executed. Id. at 355. Moreover, we concluded

that there was no evidence linking Mr. Ocasio to any room in which the

contraband was discovered and that there was no evidence that Mr. Ocasio

“even knew of the criminal activity in the house.” Id. Finally, we concluded

that, even though Mr. Ocasio was present at the scene of a crime, “[a]s a

resident of the house, [Mr. Ocasio’s] presence at the scene of the crime was

not out of the ordinary.” Id.

Appellant’s reliance upon Ocasio cannot succeed, as the evidence in

the case at bar is far more incriminating than the evidence that was present

in Ocasio. To start, unlike Mr. Ocasio, Appellant simply cannot persuasively

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claim that he was unaware of the criminal activity that was occurring in the

hotel room. Indeed, Appellant was caught in a single, open hotel room, with

drug-cutting and drug-packaging material in plain view and strewn about the

confined space.

Moreover, when the police arrested Mr. Ocasio, Mr. Ocasio was inside

of his own residence – where he had a legitimate right to be – and the police

did not discover any contraband in any room in which Mr. Ocasio exclusively

controlled. In the case at bar, however, the evidence demonstrates that

Appellant drove to an out-of-state hotel, with no overnight luggage, and was

found inside of a room that was being used exclusively as a “mobile heroin

mill” – and, thus, for no legitimate purpose. Echoing the District of

Columbia Court of Appeals, Appellant’s claim of “innocent presence” in such

an incriminating and secretive environment is “decidedly less plausible” than

was the claim in Ocasio. Rivas, 783 A.2d at 138.

Finally, the Ocasio Court held that (beyond Mr. Ocasio’s mere

presence in his own residence) there was a dearth of evidence supporting

Mr. Ocasio’s convictions. In the case at bar, however, the Commonwealth

introduced additional evidence supporting the inference that Appellant

constructively possessed the contraband in the hotel room. Indeed, as

summarized above, the Commonwealth introduced evidence supporting the

inference that Appellant was, at the very least, complicit in the destruction

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of contraband and that Appellant transported the drug-cutting and drug-

packaging paraphernalia to the hotel room.

Appellant’s dependence upon Ocasio thus does not entitle him to

relief.11 The evidence in the case at bar is sufficient to support the trial

court’s conclusion that Appellant was an active participant in the drug-

cutting and drug-packaging operation that was being conducted in the hotel

room and that Appellant possessed “the power to control the contraband [in

the hotel room] and the intent to exercise that control.” Macolino, 469

A.2d at 134.

Moreover, we conclude that the evidence is sufficient to support the

trial court’s conclusion that Appellant and Mr. Saldana conspired to cut and

package for sale the 377.73 grams of raw, uncut heroin that was discovered

in Mr. Saldana’s vehicle. As such, the evidence is sufficient to support

11

In support of his sufficiency claim, Appellant also cites to

Commonwealth v. Valette. 613 A.2d 548 (Pa. Super. 1992). However,

from Appellant’s standpoint, the facts of Valette are even weaker than the

facts of Ocasio. Therefore, we will not separately analyze Valette. See

Valette, 613 A.2d at 548 (the police raided a two story apartment and

arrested Mr. Valette, along with multiple people who were present at the

time of the raid; a search revealed that contraband was secreted in various

places throughout the apartment; while the Commonwealth produced

evidence that Mr. Valette’s co-defendants lived in the apartment, there was

no evidence that Mr. Valette resided in the apartment and the police

discovered no contraband on Mr. Valette’s person; we held that, since “the

record demonstrates nothing more than that [Mr. Valette] was present in an

apartment in which drugs were found,” the evidence was insufficient to

support Mr. Valette’s conviction for possession).

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Appellant’s conviction for the substantive offense of PWID, insofar as it

related to the raw and uncut heroin.

As our Supreme Court has explained: “to sustain a conviction for

criminal conspiracy, the Commonwealth must establish that the defendant

(1) entered into an agreement to commit or aid in an unlawful act with

another person or persons, (2) with a shared criminal intent and (3) an

overt act was done in furtherance of the conspiracy.” Commonwealth v.

Fisher, 80 A.3d 1186, 1190-1191 (Pa. 2013) (internal quotations, citations,

and corrections omitted); see also 18 Pa.C.S.A. § 903. We have held:

The essence of a criminal conspiracy is the common

understanding that a particular criminal objective is to be

accomplished. Mere association with the perpetrators, mere

presence at the scene, or mere knowledge of the crime is

insufficient. Rather, the Commonwealth must prove that

the defendant shared the criminal intent, i.e., that the

Appellant was an active participant in the criminal

enterprise and that he had knowledge of the conspiratorial

agreement. The defendant does not need to commit the

overt act; a co-conspirator may commit the overt act.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) (en

banc) (internal quotations and citations omitted).

“Proof of a conspiracy is almost always extracted from circumstantial

evidence. The Commonwealth may present a ‘web of evidence’ linking the

defendant to the conspiracy beyond a reasonable doubt. The evidence

must, however, rise above mere suspicion or possibility of guilty collusion.”

Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)

(internal quotations and citations omitted). We have held that, “[a]mong

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the circumstances which are relevant, but not sufficient by themselves, to

prove a corrupt confederation are: (1) an association between alleged

conspirators; (2) knowledge of the commission of the crime; (3) presence at

the scene of the crime; and (4) in some situations, participation in the object

of the conspiracy.” Lambert, 795 A.2d at 1016 (internal quotations and

citations omitted). Moreover:

Once there is evidence of the presence of a conspiracy,

conspirators are liable for acts of co-conspirators committed

in furtherance of the conspiracy. Even if the conspirator did

not act as a principal in committing the underlying crime, he

is still criminally liable for the actions of his co-conspirators

taken in furtherance of the conspiracy.

...

The premise of the rule is that the conspirators have formed

together for an unlawful purpose, and thus, they share the

intent to commit any acts undertaken in order to achieve

that purpose, regardless of whether they actually intended

any distinct act undertaken in furtherance of the object of

the conspiracy. It is the existence of shared criminal intent

that is the sine qua non of a conspiracy.

Lambert, 795 A.2d at 1016-1017 (internal quotations and citations

omitted). “The duration of a conspiracy depends upon the facts of the

particular case, that is, it depends upon the scope of the agreement entered

into by its members.” Johnson, 26 A.3d at 1092 (internal quotations and

citations omitted).

As stated above, the only remaining issue with respect to Appellant’s

sufficiency of the evidence claim is whether the conspiracy between

Appellant and Mr. Saldana encompassed, as its object, the cutting and

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packaging of the 377.73 grams of uncut heroin that was discovered in Mr.

Saldana’s vehicle. We conclude that the evidence was sufficient to support

this conclusion.

We have explained that the evidence at trial was sufficient to support

the trial court’s conclusion that Appellant was an active participant in an

ongoing, multi-person “mobile heroin mill,” where raw heroin was cut,

weighed, and packaged for sale “at the street level.” Moreover, viewing the

evidence in the light most favorable to the Commonwealth, the evidence at

trial demonstrated that the hotel room within which the operation was being

conducted was being used exclusively for the cutting and packaging of raw

heroin – and that Appellant and his compatriots had already cut and

packaged “thousands of bags of heroin” before the police arrived. Further,

Detective Carroll testified that, by the time the police arrived, the

“thousands of bags” of cut and packaged heroin had already “left the [hotel]

room” for ultimate sale “at the street level.” N.T. Trial, 10/17/11, at 87, 89,

and 90.

Under such circumstances, it takes a very small inferential step to

conclude that Appellant and Mr. Saldana understood, agreed, and intended

to cut, weigh, and package for sale the 377.77 grams of raw heroin that was

discovered in Mr. Saldana’s vehicle. To be sure, the facts of this case

demonstrate that Mr. Saldana transported “well over a hundred thousand

dollars” of raw heroin to an out-of-state hotel and then entered a room

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where the only activity being conducted was the cutting of raw heroin and

the packaging of the cut heroin for sale on the street. Indeed, the grinders,

scales, lamps, stamps, and packaging materials were consistent with the

items needed to process raw heroin such as that found in Mr. Saldana’s

vehicle.

Moreover, the evidence at trial demonstrated that some of the raw

heroin discovered in Mr. Saldana’s vehicle was packaged in rubber condoms

“for transportation in a human body;” and, as Detective Carroll testified, the

heroin-filled condoms found in Mr. Saldana’s vehicle were “very similar, if

not identical” to the “used empty condom[s]” that were found in the hotel

room. N.T. Trial, 10/17/11, at 90-91. Since the evidence at trial

demonstrates that Appellant and his compatriots had already cut and

packaged “thousands of bags” of raw heroin before the police arrived, a fair

inference from the evidence is that the “used empty condom[s]” in the hotel

room had previously been filled with raw heroin, and that Appellant and his

compatriots had already cut and packaged the heroin that had filled those

condoms. Further, since the heroin-filled condoms in Mr. Saldana’s vehicle

were “very similar, if not identical” to the “used empty condom[s]” in the

hotel room, the fact-finder could have fairly inferred that Appellant and Mr.

Saldana had intended to cut and package the raw heroin that filled the

condoms in Mr. Saldana’s vehicle.

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Simply stated, the evidence in this case was not “so weak and

inconclusive that as a matter of law no probability of fact [could have been]

drawn from the combined circumstances.” Brown, 23 A.3d at 559-560

(internal quotations and citations omitted). Rather, viewing the evidence in

the light most favorable to the Commonwealth, the evidence is sufficient to

support the trial court’s conclusion that Appellant and Mr. Saldana were

engaged in an ongoing conspiracy and that they conspired to cut and

package for sale the 377.73 grams of raw, uncut heroin that was discovered

in Mr. Saldana’s vehicle. Moreover, since the evidence is sufficient to

support Appellant’s conviction for criminal conspiracy, the evidence is also

sufficient to support Appellant’s conviction for the substantive offense of

PWID with respect to the 377.73 grams of raw heroin. Commonwealth v.

Roux, 350 A.2d 867, 871 (Pa. 1976) (“[w]here the existence of a conspiracy

is established, the law imposes upon a conspirator full responsibility for the

natural and probable consequences of acts committed by his fellow

conspirator or conspirators if such acts are done in pursuance of the

common design or purpose of the conspiracy”); Commonwealth v. Perez,

931 A.2d 703, 709 (Pa. Super. 2007) (“successful proof of a conspiracy

makes each co-conspirator fully liable for all of the drugs recovered, without

the necessity of proving constructive possession”).

Appellant’s sufficiency of the evidence claim thus fails.

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For Appellant’s second and final claim on appeal, Appellant contends

that the trial court erred in sentencing him to the mandatory minimum

sentence under 18 Pa.C.S.A. § 7508(a)(7)(iii), as “there was no proof that []

Appellant was in actual or constructive possession of the narcotics in

question.” Appellant’s Brief at 17 (some internal capitalization omitted).

Appellant’s specific claim fails. Nevertheless, precedent from this Court

requires that we sua sponte consider whether Appellant’s mandatory

minimum sentence is illegal. Because we must conclude that Appellant’s

sentence is unlawful, we are required to vacate Appellant’s judgment of

sentence and remand for resentencing.

In relevant part, 18 Pa.C.S.A. § 7508 provides:

(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 [35 P.S.

§ 780-113(a)(30) (“PWID”)] . . . where the controlled

substance or a mixture containing it is heroin shall, upon

conviction, be sentenced as set forth in this paragraph:

...

(iii) when the aggregate weight of the compound or

mixture containing the heroin involved is 50 grams

or greater: a mandatory minimum term of five years

in prison and a fine of $25,000 or such larger

amount as is sufficient to exhaust the assets utilized

in and the proceeds from the illegal activity. . . .

...

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(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)(iii) and (b).

Appellant argues in his brief that the trial court erred in sentencing

him to the mandatory minimum sentence under 18 Pa.C.S.A.

§ 7508(a)(7)(iii), as “there was no proof that [] Appellant was in actual or

constructive possession of the narcotics in question.” Appellant’s Brief at 17.

We have already explained why Appellant’s actual claim on appeal fails. As

was explained above, Appellant was convicted of participating in an ongoing

criminal conspiracy with Mr. Saldana, which encompassed as its object the

cutting and packaging of the 377.73 grams of raw heroin that was

discovered in Mr. Saldana’s vehicle. Since the evidence was sufficient to

support Appellant’s conviction for participating in this ongoing conspiracy,

the evidence was also sufficient to support Appellant’s conviction for the

substantive offense of PWID, with respect to the 377.73 grams of raw

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heroin. Roux, 350 A.2d at 871; Perez, 931 A.2d at 709.12 Hence,

Appellant’s claim on appeal fails.

Yet, we are required to vacate Appellant’s judgment of sentence. A

panel of this Court recently held that our en banc opinion in

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) and

the panel decision in Commonwealth v. Valentine, 101 A.3d 801 (Pa.

Super. 2014) mandate that we hold 18 Pa.C.S.A. §7508 unconstitutional in

its entirety. Thus, a mandatory minimum sentence imposed under this

statute is illegal.13 Commonwealth v. Fennell, 2014 WL 6505791, *1-8

(Pa. Super. Nov. 21, 2014). Specifically, the Fennell Court noted that 18

Pa.C.S.A. § 7508 is structured in the same manner as the statutes that were

12

We also note that Appellant stipulated to the fact that the heroin weighed

377.73 grams (which constitutes heroin in the amount of 50 grams or

more). 18 Pa.C.S.A. § 7508(a)(7)(iii); see N.T. Trial, 10/17/11, at 39-41

(Appellant stipulated to the authenticity and accuracy of the Bucks County

Laboratory Report and to the chain of custody regarding the items tested);

see also Bucks County Crime Laboratory Report, dated 11/23/10, at 1

(declaring that the substance in Mr. Saldana’s vehicle was 377.73 grams of

heroin).

13

Although Appellant has not raised any issue relating to the legality of his

sentence, we note that “[l]egality of sentence questions are not waivable

and may be raised sua sponte by this Court.” Commonwealth v. Watley,

81 A.3d 108, 118 (Pa. Super. 2013) (en banc). Moreover, this Court has

held that “a challenge to a sentence premised upon [Alleyne v. United

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

the sentence and cannot be waived on appeal.” Newman, 99 A.3d at 90.

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at issue in Newman and Valentine14 – and, as was true with the statutes

at issue in Newman and Valentine, one particular subsection of 18

Pa.C.S.A. § 7508 is clearly unconstitutional under Alleyne v. United

States, ____ U.S. ____, 133 S. Ct. 2151 (2013). See 18 Pa.C.S.A.

§ 7508(b). In particular, Section 7508(b) contains the following

unconstitutional burdens and procedures: it declares that the substantive,

“aggravating facts” contained in Section 7508(a) are “not . . . an element of

the crime;” it declares that notice of either the “aggravating facts” or of the

applicability of the mandatory minimum sentencing statute is “not . . .

required prior to conviction;” it declares that the applicability of the

mandatory minimum statute “shall be determined at sentencing;” it declares

that the Commonwealth need only prove the “aggravating facts” by a

preponderance of the evidence; and, it declares that a judge – and not a

jury – is to act as the fact-finder for purposes of determining the

“aggravated facts.” 18 Pa.C.S.A. § 7508(b). Alleyne rendered all of these

burdens and procedures unconstitutional.

The Court in Fennell concluded that, pursuant to Newman and

Valentine, the unconstitutional portion of 18 Pa.C.S.A. § 7508 is

14

Newman dealt with 42 Pa.C.S.A. § 9712.1 (mandatory minimum

sentence to be applied to a person convicted of certain drug charges when,

at the time of the offense, said person or said person’s accomplice is in

physical possession or control of a firearm). Valentine dealt with 42

Pa.C.S.A. § 9712 and § 9713 (mandatory minimum sentence to be applied

to a person convicted of certain enumerated crimes of violence if said crime

occurred in or near public transportation).

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unseverable from the remainder of the statute. Thus, even though Fennell

stipulated to the weight of the heroin at issue, the Fennell Court held that

the trial court erred in imposing the mandatory minimum sentence as

Section 7508 is unconstitutional in its entirety. Hence, as the Appellant in

the case sub judice was sentenced to a mandatory minimum under Section

7508, which has been deemed unconstitutional, we must vacate Appellant’s

judgment of sentence and remand for resentencing, without consideration of

the mandatory minimum sentence.

Appellant’s convictions for PWID, possession of a controlled substance,

possession of drug paraphernalia, and criminal conspiracy affirmed.

Judgment of sentence vacated. Case remanded for resentencing only.

Jurisdiction relinquished.

P.J.E. Ford Elliott and Judges Allen and Mundy join this opinion.

P.J.E. Ford Elliott files a concurring statement in which Judges Panella,

Donohue and Lazarus join.

P.J. Gantman and Judge Panella concur in the result.

P.J.E. Bender files a concurring and dissenting opinion in which Judges

Donohue and Lazarus join.

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J-E01004-14

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/31/2014

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