Com. v. Banks, A.

J.A21004/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ALEX BANKS, :

:

Appellant : No. 1852 EDA 2013

Appeal from the Judgment of Sentence June 7, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division No(s).: CP-51-CR-0000449-2012

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 28, 2015

Appellant, Alex Banks,1 appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas after he was

found guilty of drug and firearms-related offenses. He claims: (1) the trial

court erred in denying his suppression motion; (2) the evidence was

insufficient to sustain his convictions; (3) the court’s verdicts were against

the weight of the evidence; and (4) the imposition of a mandatory minimum

sentence under 42 Pa.C.S. § 9712.12 is illegal under Alleyne v. United

*

Former Justice specially assigned to the Superior Court.

1

Appellant’s co-defendant’s appeal is docketed at 1937 EDA 2013.

2

Section 9712.1 provided, inter alia, that “[a]ny person who is convicted of

[PWID] when at the time of the offense the person or the person’s

accomplice is in physical possession or control of a firearm, whether visible .

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States, 133 S. Ct. 2151 (2013). We affirm the convictions, but vacate the

judgment of sentence, and remand this matter for resentencing.

The trial court summarized the procedural history and the

Commonwealth’s evidence giving rise to this appeal:

[Appellant] and his co-defendant, Kaaleem Williams

[“co-defendant], were arrested on December 6, 2011 and

charged with a variety of drug and weapons offenses[,

including possession of a controlled substance with intent

to deliver3 (“PWID”), conspiracy,4 and possessing a firearm

with manufacturer number altered.5 Their] Joint Motion to

Suppress any and all physical evidence recovered was

heard and denied by the Honorable Charles J.

Cunningham, III . . . . On January 25, 2013, following a

[joint] waiver trial before [the Honorable Lisette Shirdan-

Harris], [Appellant] was found guilty on all charges.[6

Appellant] made an oral motion, and filed a subsequent

written post-trial Motion for Extraordinary Relief (“MFER”)

seeking to have the verdict vacated.

At [Appellant’s] June 7, 2013 sentencing, th[e trial

c]ourt denied the MFER and imposed the mandatory

minimum sentence of five to ten years on the . . . [the

PWID] charge (with which the . . . Conspiracy . . . charge

merged); a concurrent sentence of one to two years for

the . . . Possessing a Firearm with Manufacturer Number

Altered charge; and no further penalty on all remaining

charges[ ].

. . or within the actor’s or accomplice’s reach or in close proximity to the

controlled substance, shall likewise be sentenced to a minimum sentence of

at least five years of total confinement.”

3

35 P.S. § 780-113(a)(30).

4

18 Pa.C.S. § 903.

5

18 Pa.C.S. § 6110.2.

6

Neither Appellant nor the co-defendant testified at trial.

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* * *

At both [the suppression] Motion hearing and the

January 25, 2013 Waiver Trial . . ., the Commonwealth

presented the testimony of Philadelphia Police Investigator

Daniel Thompson and Detective Timothy Connell and the

following facts were established. [A]round 3:00 A.M. on

December 6, 2011 five Philadelphia warrant officers

arrived at 1716 North 55th Street in Philadelphia,

Pennsylvania, to execute an arrest warrant for a resident

of that address named Shaquita Brown. Three Officers

were present, knocking on the front door while the

remaining two Officers covered the rear of the property.

Before entering the residence and during the subsequent

search, Officers were under the belief that this property

was a single family home. The Officer[s] testified that it

was a regular twin house with a single front door with one

doorbell and one lock. There was no intercom system, no

sign of multiple mailboxes or apartment numbers or

exterior locks on each door.

After a few minutes of knocking, one of the tenants

answered the door; the Officers identified themselves and

explained that they had a warrant for Shaquita Brown.

This tenant was shown a picture, stated that he did not

know her, admitted the officers into the entryway of the

first floor and subsequently into his room to search for Ms.

Brown. The Officers’ search of the room yielded no results

and the tenant suggested that the Officers check the other

rooms of the residence. The Officers proceeded to knock

on the remaining doors in the hallway, following the same

procedure of identifying themselves, stating that they were

looking for resident Shaquita Brown, being admitted and

searching the room. It took a few minutes of knocking on

each door before they were answered and the inhabitants

of each room appeared to have been sleeping with the

lights turned off. The search of these rooms also yielded

no results.

About twenty minutes after initially entering the

building, the Officers reached the fourth and final door.

Again, the Officers knocked on the door, which they

described as a regular wooden bedroom door, and it took

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two to three minutes before co-defendant, Kaaleem

Williams, responded asking “Who’s there?” The Officers

identified themselves, the co-defendant opened the door,

[and] was shown a picture of Shaquita Brown and a copy

of the arrest warrant. The Officers asked if they could

enter the room to search for Ms. Brown and the co-

defendant said “okay”, agreeing to let them enter. . . .

Upon entering the room to begin their search, the

Officers immediately noticed [Appellant] sitting on the bed.

Both [Appellant] and co-defendant were fully clothed and

wearing shoes. The room was described as similar to the

others in the home—a regular style bedroom with an open

doorway (but no door) leading into the bathroom. The

room was small and contained only a twin sized futon bed;

small refrigerator; broken dresser; and television. The

lights were on, in addition to the television with the movie

“Juice” playing.

As the Officers began their search for Ms. Brown in the

room, Officer Jones approached [Appellant] who was

seated on the bed to show him a picture of Ms. Brown for

identification. Upon approaching [Appellant], the Officer

looked to his left and saw what he believed to be narcotics

in plain view in the broken dresser drawer that was

completely missing its front panel. Officer Jones alerted

the other Officers that there was something in the

drawer—a “white-chunky substance” in plastic bags being

held inside of a bigger clear plastic bag—that he believed

to be crack cocaine. Upon further investigation of the

drawer, the Officers were also able to view the handle of a

handgun which prompted them to secure [Appellant] and

[the] co-defendant as a cautionary measure to ensure the

Officers’ safety.

The Officers alerted their Sergeant to the discovery and

were given orders to secure the scene and continue their

search for Ms. Brown. While searching for her under the

bed, the Officers discovered an additional firearm which

they described as a “small submachine gun” with a bit

longer barrel and a bigger clip. At the foot of the bed near

the front door, a third handgun was recovered. The

subsequent search of the bathroom also led to the

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discovery of “a big black trashbag” that was “full of

marijuana.”

Ms. Brown was not found in the room, so the Officers

were ordered by their Sergeant to secure the contraband

that they discovered by placing it in evidence bags and

leaving them in the room while they transported

[Appellant] and [the] co-defendant to the Southwest

Detectives headquarters. [Appellant and the co-defendant

each] provided different home addresses, neither of which

was that residence. Officers secured the front and rear of

the residence when they arrived and no one was seen

exiting at any point. Based on the contraband discovered

during the search for Ms. Brown, additional Officers

obtained and executed a search warrant in order to

recover the items.

At trial, the same facts were found and all parties

stipulated to the following: the seizure analysis

establishing that 28.08 grams of crack cocaine were

discovered in addition to 2.12 pounds of what tested

positive as marijuana from the trash bags; that whoever

possessed the drugs possessed them with the intent to

deliver based on the amount, paraphernalia, scale and

value — approximately $1,000 in crack cocaine and $3,000

in marijuana; the ballistics report establishing that two of

the three firearms were operable at the time of recovery,

while the third became operable after recovery and

insertion of a new magazine; and that the serial number of

the semi-automatic weapon was defaced by abrasion,

gauging and restored by chemical etching. . . .

Trial Ct. Op., 7/14/14, at 1-7 (record citations omitted). This appeal

followed.7

Appellant’s presents the following questions for review, which we have

reordered as follows:

7

Appellant timely complied with the trial court’s order to file and serve a

Pa.R.A.P. 1925(b) statement.

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Did the Suppression Court at the suppression hearing err

when it failed to suppress evidence illegally seized from an

unlawful entry and search of the place where [Appellant]

was located at the time of his arrest?

Did the Trial Court err when it relied upon evidence that

was insufficient as a matter of law for conviction on all

charges, insofar as the Commonwealth failed to prove that

[Appellant] actually or constructively possessed the

narcotics, paraphernalia, or firearms at issue, or conspired

to do so?

Did the Trial Court err when it failed to grant [Appellant’s]

Motion for a Directed Verdict at the close of the

Commonwealth’s [case], as well as [Appellant’s] Motion for

Judgment of Acquittal at the close of [Appellant’s] case?

Did the Trial Court err when it failed to grant [Appellant’s]

Motion for Extraordinary Relief prior to sentencing?

Did the Trial Court err when its verdict was founded upon

facts contrary to the weight of the evidence and in using

those facts to convict [Appellant]?

Did the Trial Court err when it failed to enumerate

aggravating factors on the record and sentenced

[Appellant] pursuant to 42 Pa.C.S. § 9712.1 to a

mandatory term of confinement contrary to the recent

holding of the Supreme Court of the United States in

Alleyne . . . ultimately giving [Appellant] an

unconstitutional and illegal sentence?

Appellant’s Brief at 8-9.

Preliminarily, we consider whether Appellant preserved his intended

issues for review. See Trial Ct. Op. at 2-3 (suggesting waiver based on

Appellant’s “lengthy, confusing, [and] redundant” Pa.R.A.P. 1925(b)

statement); Commonwealth’s Brief at 20 (noting Appellant failed to preserve

weight-of-evidence claim before trial court). First, we do not agree with the

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trial court’s suggestion that Appellant’s prolix Rule 1925(b) statement

required waiver. See Trial Ct. Op. at 2-3. Although Appellant’s statement

unnecessarily spanned three pages, included argument, and was poorly

organized, those defects did not preclude the trial court from discerning the

issues, nor did it preclude meaningful appellate review. See Appellant’s

Concise Statement of Errors Complained of on Appeal, 7/12/13, at 1-3; Trial

Ct. Op. at 3. Therefore, we decline to find all issues waived based on the

form of Appellant’s Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii).

Second, we are constrained to agree with the Commonwealth that

Appellant did not challenge the weight of the evidence in the trial court, and

his intended argument in that regard has been waived.8 See Pa.R.Crim.P.

607(A)(1)-(3); Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa.

2009) (noting defendant’s failure to preserve weight of evidence claim in

trial court was not cured by raising issue in Pa.R.A.P. 1925(b) statement,

even though trial court addressed issue in its Pa.R.A.P. 1925(a) statement);

Appellant’s Brief at 8-9, 36-37.

Third, we note Appellant’s sufficiency argument in his Rule 1925(b)

statement focused on the constructive possession of the drugs and firearms,

8

Although Appellant filed and argued a motion for extraordinary relief before

sentencing, that motion focused upon the sufficiency of the evidence and did

not seek a new trial. See Commonwealth v. Widmer, 744 A.2d 745, 751-

52 (Pa. 2000) (summarizing differences between sufficiency and weight of

evidence claims).

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but did not fairly include a challenge to an element for conspiracy.9

Accordingly, Appellant’s argument that the evidence was insufficient to

9

Specifically, Appellant framed this error complained of on appeal as

follows:

Second, the Trial Court erred when it ignored U.S.

Supreme Court, lower level federal court and Pennsylvania

case law when applying the evidence which was before the

Court for convicting [Appellant]. Specifically, the evidence

was “insufficient as a matter of law” to convict [him.

Appellant] was “merely present” at the location where the

drugs and guns were found and had no ties to the

residence and at no time exhibited any conduct or

behavior to indicate dominion or control over the items

found. In fact, [Appellant] was merely sitting on a bed

and was in front of a television when Agents came into the

property. There were no “controlled drug buys”, no indicia

of ownership of the firearms which were confiscated and

no furtive movements on the part of [Appellant] to show

any connection to the contraband. Additionally, the

evidence showed that the drugs and guns were secreted in

places that were not readily available to [Appellant].

Drugs were in a chest of drawers along with a gun; other

guns were hidden under the bed. No inference could even

be reasonably drawn to conclude that [Appellant] knew the

items were there. He was just a visitor in the residence

and was in the wrong place at the wrong time. That alone

does not prove “guilt beyond a reasonable doubt.”

Appellant’s Concise Statement of Errors Complained of on Appeal at 2.

We also note Appellant claimed he moved for a “directed verdict” at

the close of the Commonwealth’s case and “a judgment of acquittal” after

the announcement of the verdict. See Appellant’s Concise Statement of

Errors Complained of on Appeal at 2-3; Appellant’s Brief at 4. However, no

reference to motions for “directed verdicts” or “motions for judgment of

acquittal,” whether oral or written, appear in the record. See N.T.,

1/25/13, at 112, 115. In any event, we would review the trial court’s denial

of motions for “judgments of acquittal” at trial under the same standard as

the sufficiency of the evidence. See Commonwealth v. Potts, 460 A.2d

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sustain his conspiracy conviction has been waived. See Pa.R.A.P.

1925(b)(4)(vii); Appellant’s Brief at 35-36.

In sum, we address the following claims preserved in this appeal: (1)

the trial court erred in denying his motion to suppress; (2) the evidence was

insufficient to convict him of the possessory offenses; and (3) the sentence

imposed under 42 Pa.C.S. § 9712.1 was illegal. We address these

arguments seriatim.

Appellant first claims he was entitled to suppression of evidence

because officers entered the fourth apartment in the building under false

pretenses. He suggests the officers knocked on the door and informed his

co-defendant they had a “search warrant,” rather than an arrest warrant for

a third party. Appellant’s Brief at 19-20. He thus claims the officers used

deceit to gain entry into the apartment and neither he nor his co-defendant

validly consented to the officer’s presence. See id. at 22, 26. No relief is

due.

Our standards of review are well settled:

When reviewing the denial of a motion to suppress, we

must first ascertain whether the record supports the

court’s factual findings. In considering those factual

findings, we must consider only the evidence of the

1127, 1138 & n.7 (Pa. Super. 1983). Furthermore, the presentation of such

motions was unnecessary to preserve an appellate challenge to the

sufficiency of the evidence. See Pa.R.Crim.P. 606(A)(1), (2), (7).

Accordingly, we conclude Appellant’s challenge to the sufficiency of the

evidence regarding constructive possession of the contraband is not waived.

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prosecution and so much of the evidence for the defense

as remains uncontradicted when read in the context of the

record as a whole. We are bound by the suppression

court’s findings if they are supported by the record, and

may only reverse the suppression court if the legal

conclusions drawn from the findings are in error.

Commonwealth v. Muniz, 5 A.3d 345, 349 (Pa. Super. 2010) (citations

omitted).

Our review of the record reveals the following. Investigator Thompson

initially testified at a preliminary hearing that he and his partner knocked on

the door to the subject apartment, identified themselves as the Philadelphia

Warrant Unit and stated, “We have a search warrant.” N.T., 1/11/12, at 6

(emphasis added).

At the suppression hearing, Investigator Thompson testified on direct

examination that his partner knocked on the door to the apartment and

stated, “Philadelphia Warrant Unit, we have a warrant.” N.T., 5/14/12, at

17. The co-defendant opened the door and, according to the officer’s

testimony, his partner told the co-defendant they had “search warrant.” Id.

His partner then showed him a picture of Ms. Brown. Id. Appellant’s

counsel cross-examined the officer to emphasize the officer used of the term

“search warrant” in both his preliminary hearing and suppression hearing

testimony. Id. at 35.

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After brief testimony from a police detective,10 the Commonwealth

rested. Counsel for the co-defendant argued the officers told the co-

defendant they were executing a search warrant. As a result, the trial court

reopened the evidence and recalled Investigator Thompson, over the co-

defendant’s objection. Id. at 55-56. The court directly examined the officer

and the following exchange occurred:

THE COURT: At the preliminary hearing, you said that

[the co-defendant] opened the door and you showed him a

picture of Shakeeta Brown and said that you are looking

for her is; is that right?

[Investigator Thompson]: Yes.

THE COURT: Did you tell him you had an arrest warrant

for her? What did you tell him you had?

THE WITNESS: I told him we had a warrant for her,

Your Honor.

THE COURT: It was a warrant to search for her?

THE WITNESS: It’s a body warrant. It’s a warrant to

search for her.

THE COURT: So when you’re having this discussion with

[the co-defendant], you describe as what you have in your

hand as a search warrant?

THE WITNESS: I believe at the time I said it was just a

warrant for her, Your Honor. I don’t recall saying “search

warrant,” because we don’t deal with that.

Id. at 56.

10

Investigator Thompson’s partner did not testify at the preliminary hearing,

suppression hearing, or trial.

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Counsel for the co-defendant again cross-examined the officer and

emphasized the officer’s use of the term “search warrant” at the preliminary

hearing and earlier at the suppression hearing. Id. at 57. The officer

explained, “I did say that I might have slipped up.” Id. The Commonwealth

conceded that the officer stated “search warrant” at the preliminary hearing

and the suppression hearing, but on redirect examination, attempted to

rehabilitate his testimony by referring him to other points in the transcript

where the officer stated “bench warrant” or “body warrant.” Id. at 58, 60-

61.

The record thus reveals obvious contradictions in the officer’s

testimony. Nevertheless, the trial court was entitled to resolve the conflicts

in the testimony and find credible the officer’s explanations he only

inadvertently used that term in his prior testimony and at the time of the

entry into the apartment. Moreover, the court could find that neither the

officer nor his partner informed the co-defendant they had a “search

warrant.” As an appellate court, we are bound to defer to the trial court’s

credibility and factual determinations that are supported by the record. See

Muniz, 5 A.3d at 349. As there is some support for the trial court’s findings

of fact and credibility, we affirm on that basis. Further, because Appellant’s

factual challenge to the trial court’s suppression ruling fails, we do not

consider his further legal argument the officers improperly obtained consent

to enter the apartment.

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Appellant next claims the evidence was insufficient to sustain the

verdicts based on constructive possession of the drugs and the firearms.

Appellant’s Brief at 31. He relies on our decision in Commonwealth v.

Rodriguez, 618 A.2d 1007 (Pa. Super. 1993), and a federal decision,

United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996).11 Id. at 32-33.

According to Appellant, “[t]he only evidence used to convict [him] was his

merely being present in the apartment in which the contraband was hidden.”

Id. at 31. He continues, “There [were] ZERO facts which would indicate

[he] had any possessory interest in the apartment or its contents and

nothing to show that he was anything other than an ill-timed visitor who was

caught up in a police raid.” Id. at 33. We are constrained to disagree.

Our review is governed by the following principles:

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 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 proof of proving every element of the crime

11

“While . . . federal court decisions are not binding on this [C]ourt, we are

able to adopt their analysis as it appeals to our reason.” Commonwealth

v. Arthur, 62 A.3d 424, 429 n.9 (Pa. Super. 2013) (citation omitted).

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beyond a reasonable doubt by means of wholly

circumstantial evidence. Moreover, in applying the above

test, the entire record must be evaluated and all the

evidence actually received must be considered. . . .

Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005)

(citation omitted).

Constructive possession requires proof of the ability to

exercise conscious dominion over the substance, the power

to control the contraband, and the intent to exercise such

control. Constructive possession may be established by

the totality of the circumstances. . . .

Id. (citations omitted). However, “‘[g]uilt by association is unacceptable.’

Further, ‘mere presence of one person, among a group at a scene of

contraband, is not a strong factor indicative of guilt.’” Commonwealth v.

Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001) (citations omitted).

We note that in both Rodriguez and Jenkins, the evidence

established that other parties were responsible for the residence searched or

the contraband found therein. In Rodriguez, officers executed a search

warrant on an apartment and arrested Joseph Aquino. See Rodriguez, 618

A.2d at 1008. Aquino was identified as the perpetrator in a drug sale that

gave rise to the search warrant, was in physical possession of contraband

and cash, and had mail in his name in the apartment. Id. Officers

recovered additional contraband in the apartment. Id. Officers also found

the defendant hiding in a closet, next to a jacket with three baggies of

cocaine inside a cigarette pack in the side pocket. Id. The defendant was

arrested following a struggle. Id. The defendant had no contraband on his

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person and had no personal items in the apartment. However, he was in

physical possession of a key to the apartment. Id. Following his conviction,

this Court concluded the defendant’s possession of the key and presence in

Aquino’s apartment were insufficient to prove constructive possession of the

contraband. Id. at 1009. We emphasized there was no indication he

resided at the apartment, engaged in criminal activity, or was aware of the

presence of contraband. Id.

In Jenkins, officers pursued two suspects into an apartment.

Jenkins, 90 F.3d at 816. There, they found the defendant and another

individual, Sam Stallings, seated on a couch, in their underwear, with three

bags of cocaine, firearms, and paraphernalia for packaging the cocaine on

the coffee table in front of them. Id. Stallings and one of the suspects who

initially led officer to the apartment were identified as residents of the

apartment. Id. at 817. The Jenkins Court reversed the defendant’s

conviction, concluding there was no “decisive nexus” between the defendant

and the contraband beyond the evidence of his proximity to the contraband

and his presence in Stallings apartment. Id. at 820.

Thus, Rodriguez and Jenkins emphasized the absence of a sufficient

nexus establishing control over the contraband vis-à-vis a party implicated

in the criminal activity. See Rodriguez, 618 A.2d at 1009; see also

Jenkins, 90 F.3d at 820. Although it is well settled that “mere presence” is

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insufficient to establish constructive possession under those circumstances,

this Court has also opined that a fact-finder

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, 1557–1558

(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 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”).

Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) (en

banc).

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Instantly, the record, when viewed in a light most favorable to the

Commonwealth, provided a reasonable basis for the trial court’s finding that

the “small room” in which Appellant and the co-defendant were found “was

most likely used exclusively for packaging drugs.” See Trial Ct. Op. at 12.

We cannot disregard (1) the presence of $4,000 worth of narcotics—

including the “giant garbage bag” containing marijuana and vials located

near the shower, (2) the presence of multiple firearms—one of which had its

serial number obliterated, or (3) the absence of any paraphernalia for

personal use. See Vargas, 108 A.3d at 869-70. The combination of these

factors all strengthened the inference that the apartment was a location for

securing narcotics that were packaged for future sales. See id.

Moreover, the evidence did not give rise to a suggestion of innocent

presence in the room. See Rodriguez, 618 A.2d at 1009; Jenkins, 90 F.3d

at 820. The only furnishings were a futon-style bed, a small refrigerator, a

dresser, and a television. N.T., 1/25/13, at 30, 37-38. The dresser only

contained “a T-shirt or two,” and there was no evidence of mail addressed to

any individual. Id. at 52-53. Both Appellant and the co-defendant provided

police officers information that they did not live in the building. Neither

Appellant nor the co-defendant had a relationship to the apartment or a

legitimate occupant of the building, despite their presence in the apartment

at 3:00 A.M.

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We also note the record belies Appellant’s assertion that he was

unaware of the contraband. Instantly, the arresting officer testified the

suspected cocaine and the handle of the firearm located in the broken

drawer was immediately apparent. See N.T., 1/25/13, at 31-32. Indeed,

the television Appellant was watching was on top of the same broken

dresser containing the cocaine. Id. at 31. The record further established

that the doorway to the bathroom was open, the trash bag in the bathroom

was left open, and the vials and marijuana in the trash bag were similarly in

plain view. Id. at 36, 39. Thus, we detect no merit to Appellant’s assertion

that he had no knowledge of the narcotics or firearms.

In sum, we discern no error in the trial court’s determination that

Appellant and the co-defendant were not mere social visitors. Rather,

based on the totality of the circumstances—including the nature of the

apartment and the indicia that it was exclusively used to store contraband

for sale—we conclude that the court was entitled to find that Appellant and

the co-defendant constructively possessed the contraband. In contrast to

Rodriguez and Jenkins, there was no evidence an identified party used the

apartment to sell drugs or was responsible for packaging the drugs.

Accordingly, we discern no merit to Appellant’s arguments that the absence

of evidence regarding his connection to the apartment or the contraband

warranted relief.

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Lastly, Appellant claims his sentence, which was based on the

mandatory minimum sentence under 42 Pa.C.S. § 9712.1, is illegal under

Alleyne. Appellant’s Brief at 45. The Commonwealth does not object to

resentencing without reference to Section 9712.1. Commonwealth’s Brief at

24-25.

This Court has held that Section 9712.1 is unconstitutional in its

entirety. See Commonwealth v. Newman, 99 A.3d 86, 103 (Pa. Super.

2014) (en banc). Moreover, an Alleyne challenge is available to defendants

whose cases are on direct appeal. See id.; Commonwealth v. Riggle, ___

A.3d ___, ___, 2015 WL 4094427 at *4 (Pa. Super. July 7, 2015).

Therefore, we remand for resentencing “without consideration of any

mandatory minimum sentence.”12 See Newman, 99 A.3d at 103.

Accordingly, we affirm the convictions, vacate the judgment of sentence,

and remand this matter for resentencing.

Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

12

We note that before trial, the Commonwealth also asserted that a

mandatory minimum sentence under 18 Pa.C.S. § 7508, for the weights of

the controlled substances, could apply. N.T., 1/25/13, at 6. However,

Section 7508 has also been held unconstitutional in light of Alleyne and

Newman. See Commonwealth v. Mosley, 114 A.3d 1072, 1089-91 (Pa.

Super. 2015).

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J.A21004/15

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/2015

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