Com. v. Mosley, D.Com. v. Mosley, D.
Donte Mosley appeals from his judgment of sentence, entered in the Court of Common Pleas of Delaware County, after being convicted by a jury of three counts of possession of a controlled substance1 and one count of possession with the intent to deliver a controlled substance (cocaine).2 The Commonwealth sought, and the sentencing court applied, the mandatory minimum sentence of five years’ imprisonment pursuant to
On August 13, 2012, at approximately 2:00 p.m., Ridley Township Police Officer Leo Doyle was on patrol in the Secane area in respоnse to a complaint about illegal drug activity at the Presidential Square Apartments on South Avenue. James Latticlaw, the complainant, had told the police that squatters were selling drugs out of his apartment. Sergeant Charles Palo and Corporal Daniel Smith, also members of the Ridley Township Police Department, accompanied Officer Doyle to the Secane address in a separate police vehicle. When the two police vehicles arrived at the apartment complex, the police observed a black Cadillac driving towards them and saw Latticlaw pointing toward the Cadillac.
After seeing Latticlaw gesture toward the Cadillac, both police vehicles followed the car as it pulled out of the parking lot. While only a few feet behind the Cadillac, Officer Doyle saw Mosley, the driver of the Cadillac, put his arm out of the driver‘s side window and drop two clear plastic bags.4 Corporal Smith picked up the two bags while Officer Doyle activated his siren and police lights and pulled the Cadillac over. Corporal Smith contacted
Prior to trial, Mosley filed a motion to suppress text messages that were viewed by a police officer on the two cell phones6 confiscated from him during the search incident to his arrest. Ridley Township Police Officer John McDevitt testified that as Mosley was being processed at the police station on the instant charges, the officer viewed texts that kept “popping up” on the screens of the mobile phones. Officer McDevitt first testified that the phones were already powered on and they required no password or other manipulation (like “swiping“) to view the texts. However, the officer later testified that he was unable to recall whether he hаd to swipe anything to view the text messages.
Mosley filed a pretrial motion to suppress the search of the two cell phones and the numerous text messages found on them, basing his arguments on authentication and hearsay grounds. Mosley filed a second
On September 16-17, 2013, a jury trial was held. At trial, Sergeant Kenneth Rutherford, an expert in the field of drugs and drug investigations, testified for the Commonwealth. Officer Doyle had contacted Sgt. Rutherford about the instant case, gave him basic information about the arrest (including what was confiscated at the stop) and asked the sergеant to prepare a search warrant. In response, Sgt. Rutherford prepared an application for a search warrant,7 specifically requesting that the contents of the cell phones found on Mosley be searched. Text messages from both cell
At the conclusion of trial, Mosley was found guilty of possession of a controlled substance (oxycodone), possession of a controlled substance (heroin), possession of a controlled substance (cocaine), and possession with intent to deliver. Mosley was sentenced to 66-132 months’ imprisonment, followed by 5 years of state probation. Mosley filed an
On appeal, Mosley raises the following issues for our consideration:9
- Did the lower court err in admitting the hearsay statements testified to by Officer Leo Doyle regarding a telephone call he received as well as a statement made at the scene?
- Did the lower court err in allowing evidence of text messages despite the fact that said messages were not properly authenticated, but were also hearsay?
- Did the lower court err in failing to suppress evidence of text messages taken from the cellphones by the arresting officers?
- Did the lower court err in failing to suppress the information and/or text messages taken from the above cellphones as a result of a search warrant since said evidence was the “fruit of the poisonous tree“?
- Did the lower court err in failing to suppress the said text messages taken pursuant to a search warrant from the cell phones found on the person of the Appellant as a violation of the United States Constitution, Amendments 4 and 14[,] and the Pennsylvania Constitution, Article 1, Section 8[,] for failure to link the items requested to be searched with the alleged crime committed?
- Did the lower court err in finding that there was sufficient evidence to uphold the verdict and also err in finding that the verdict was not against the weight of the evidence?
- Did the lower court err in failing to reopen the suppression hearing to allow Appellant to introduce evidence contradicting the police officers concerning their reading of the text messages?
- Was sentencing the Appellant to a five year mandatory minimum sentence pursuant to
18 Pa.C.S. [§]7508 illegal because the statute was unconstitutional?
Admission of Officer Doyle‘s Statements
Mosley asserts that the trial court erred in admitting hearsay evidence regarding “drug activity” offered by Commonwealth witness, Officer Leo Doyle. Officer Doyle was the first officer to appear at the scene to investigate Latticlaw‘s complaint, which led to him following, stopping and arresting Mosley. Mosley claims that this hearsay testimony was highly prejudicial because it negated his defense (that the passenger in the vehicle was the one who controlled the drugs and not him). Mosley also contends that admission of the testimony was reversible error as evidence of his guilt was not overwhelming.
While certain out-of-court statements offered to explain a course of police conduct are admissible because they are offered merely to show the information upon which police acted, some out-of-court statements bearing upon police conduct are inadmissible because they may be considered by the jury as substantive evidence of guilt, especially where the accused‘s right to cross-examine and confront witnesses against him would be nullified. Commonwealth v. Palsa, 555 A.2d 808, 810 (Pa. 1989).
Mosley‘s arresting officer, Officer Leo Doyle, testified at trial regarding a phone call he received from James Latticlaw, who indicated that Mosley and a third party were “squatters” selling drugs out of Latticlaw‘s apartment. Officer Doyle also testified that when he arrived at the аpartment complex to
Q: What area did they make a complaint? A specific type of crime or of a specific incident that happened in a certain place?
A: Yes.
Q: What - what was that?
A: Drug activity.
Q: Drug activity. And what location?
A: At the 640 South. I forget the exact apartment, but James Latticelaw[sic]‘s apartment in 640 South Avenue, Presidential Square.
* * *
A: I was - the van was in front of me with Sergeant Paylow and Corporal Smith and I was behind the van and the black Cadillac was coming towards me occupied by two black males. Okay. And I also then observed James Latticelaw [sic], who I know from running that area and having calls, pointing at the car making a motion that that‘s the car that was - that had the two occupants in it that were why we were there.
N.T. Jury Trial, 9/16/13, at 122-24.
The trial court justified its decision tо admit Officer Doyle‘s testimony as follows:
This [c]ourt properly admitted the statements, as they were introduced by the prosecution to show why Officer Doyle went to the Presidential Apartments and why his attention was drawn to the black Cadillac, not to prove the truth of the matter asserted.
Trial Court Opinion, 5/15/14, at 6.
In Commonwealth v. Yates, 613 A.2d 542 (Pa. 1992), the defendant was convicted of possession and possession with the intent to deliver. At trial, two officers testified why they went to the specific area where the defendant was arrested. In their testimony, the officers stated “that an informant had notified them that a large black male, i.e. [defendant], was ‘dealing drugs’ at that location.” Id. at 543. The trial court admitted the testimony, reasoning that the testimony explained the course of police conduct and that, without the testimony, the jury would not have any way of knowing why the police went to that location. Even though the trial court gave the jury a cautionary instruction, the Supreme Court reversed the defendant‘s conviction and granted a new trial since the informant‘s statements were of a highly incriminating nature, contained specific assertions of criminal conduct, and would have the unavoidable effect of prejudice. Id.
Similarly, Mosely was charged and convicted of possession and possession with the intent to deliver. Therefore, Officer Doyle‘s statement that he responded to Latticlaw‘s apartment complex in response to a complaint that defendant was conducting “drug activity” would likewise unavoidably “have had a prejudicial impact.” Id. Moreover, unlike the trial court in Yates, here the judge did not give the jury a cautionary instruction despite the defense‘s objections to the police officer‘s alleged hearsay statements. Where Officer Doyle‘s testimony contained specific assertions of
However, “not all error at trial . . . entitles a [defendant] to a new trial, and [t]he harmless error doctrine . . . reflects the reality that the accused is entitled to a fair trial, not a perfect trial[.]” Commonwealth v. West, 834 A.2d 625, 634 (Pa. Super. 2003). Moreover, it is well established that “an error which, when viewed by itself, is not minimal, may nonetheless be determined harmless if properly admitted evidence is substantially similar to the erroneously admitted evidence.” Commonwealth v. Story, 383 A.2d 155, 165 (Pa. 1978).
Because there is relevant, cumulative evidence indicative of drug activity, we find that the admission of this out-of-court statement, while an abuse of the trial court‘s discretion, was harmless error. Here, there was independent evidence showing that Mosley threw bags of drugs from a car he was driving, while being pursued by the police. Mosley‘s possession of two cell phones and U.S. currency on his рerson was consistent with drug activity, while the weight and packaging of the drugs was indicative of
Failure to Suppress Text Messages
Mosley contends that Officers McDevitt and Doyle should have secured a search warrant before reading the text messages on the cell phones. Recently, in Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. 2014), our Court addressed this issue, relying upon the legal analysis and holding of the United States Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014). In Riley, the Supreme Court determined that warrantless searches of a cellular telephone conducted incident to a defendant‘s arrest are unconstitutional. Id. at 2495.
Here, there is no question that Officer McDevitt viewed the text messages on the cell phones without first securing a warrant. The record is unclear,10 however, regarding whether Officer McDevitt actually “searched”
Our Supreme Court has held that “where there is probable cause independent of police misconduct that is sufficient in itself to support the issuance of a warrant, the police should not be placed in a worse situation than they would have been absent the error or violation under which the evidence was seized.” Commonwealth v. Brundidge, 620 A.2d 1115, 1119-20 (Pa. 1993).
There is a two-prong test governing the application of the independent source doctrine: (1) whether the decision to seek a warrant was prompted by what was seen during the initial warrantless entry; and, (2) whether the magistrate was informed at all of the information improperly obtained.
Commonwealth v. Ruey, 854 A.2d 560, 564-65 (Pa. Super. 2004).
Here, Sgt. Rutherford, who prepared the warrant, testified at the suppression hearing that he never spoke with Officer McDevitt prior to or during the process of securing the search warrant for the cellphones. Moreover, while Sgt. Rutherford did speak with Mosley‘s arresting officer, Officer Doyle, who was aware of the content of the text messages and who
Admission of Text Messages at Trial
Authentication/Authorship
Mosley next asserts that the trial court improperly permitted testimony at trial regarding text messages from the two cellphones taken from his person, incident to his arrest, where the messages had never been authenticated and constituted inadmissible hearsay.
Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999). Generally, the requirement of authentication or identification as a condition precedent to the admissibility of evidence is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
With regard to “the admissibility of electronic communication, such messages are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate
In Commonwealth v. Koch, 106 A.3d 705 (Pa. 2014) (Koch II), an equally divided Supreme Court11 affirmed our Court‘s grant of a new trial, wherein we held that: (1) the defendant‘s text messages had not been authenticated; (2) the messages were inadmissible hearsay that were not offered for any reason other than to show the truth of the matter asserted as to the content of the messages; and (3) admission of the unauthenticated hearsay messages was not harmless error because the prejudicial effect of the evidence was “so pervasive in tending to show that [defendant] took an active role in an illicit [drug selling] enterprise that it [could not] be deemed harmless.” Koch, 39 A.3d at 1005-07.
While the defendant in Koch admitted to owning the cell phone, and the content of the messages on the phone indicated drug sale activity, it was also conceded at trial that someone other than the defendant likely authored
However, the Koch Court, referencing
As the Court in Koch acknowledged, the authentication inquiry will, by necessity, “be evaluated on a case-by-case basis as any other document to determine whether there has been an adequate foundation showing of its relevance and authenticity.” Id. at 1003 (citation omitted). Instantly, Mosley denied that he owned the two cell phones that were confiscated from his person incident to his arrest. Moreover, there was no first-hand corroborating testimony from a witness regarding the authenticity of the text messages.
Unlike the defendant in Koch, who had been charged as both an accomplice and a conspirator, here Mosley was charged with purely possessory offenses, including with the intent to deliver. Therefore, the authorship of the texts is more critical to an authentication analysis under the facts of this specific case. The fact that that the trial court failed to give an authentication instruction to the jury further compounds the effect that the issue of authorship has on the case. Here, the court generally instructеd
Instantly, the trial court found that the Commonwealth authenticated the messages based on the following facts: (1) similar contacts in both phones; (2) Donte Mosley‘s mother (“Momma Dooks“) as a contact on both phones; (3) mother of Mosley‘s child texting similar messages on both phones; (4) prior incoming texts referencing “Donte“. N.T. Jury Trial, 4/18/13, at 93. While these facts may support authentication, the court does not take into account the fact that the texts referencing “Donte” occurred more than one week prior to the current incident and that the texts from Momma Dooks were sent in April, June and July of 2012 - weeks to
Like Koch, this is a close case regarding authorship and authentication. Here, there is no evidence, direct or circumstantial, tending to substantiate that Mosley was the author of the drug-related text messages. Moreover, no testimony was presented from persons who sent or received the text messages. While there may be contextual clues with regard to some texts, (i.e., one of the text messages is from Mosley‘s mother on July 26, 2012, just 18 days before his arrest, wishing Mosley a happy birthday), there are no such clues in the drug-related texts messages themselves tending to reveal the identity of the sender. Compare Koch, supra (“reference to or correspondence with relevant events that precede or follow the communication in question” may be a distinctive characteristic under
As the United States Supreme Court noted in Riley, supra, more substantial privacy interests are at stake when digital data is in play:
Cell phones differ in both a quantitative sense from other objects that might be kept on an arrestee‘s person. The term “cell phone” is itself misleading shorthand; many of these devices are
in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
Id. at 2489. Moreover, due to their immense capacity to store data, cell phones “have several interrelated consequences for privacy[,]” including the different types of data (i.e., addresses, notes, bank statements, prescriptions, videos) that can be stored on them, the sheer amount of information with regard to each type of stored data, and the fact that the data stored on the cell phone can date back months or even years to the original purchase of the phone (or even beyond that date with the ability to transfer data from an older phone to a newer one). Id. Finally, due to the fact that most people in the general population carry a cell phone on their person throughout the day, “more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives - from the mundane to the intimate.” Id. at 2490 (citation omitted).
Bearing in mind the unique nature of a cell phone and its pervasiveness in everyday society, we believe that in order to use content from a cell phone as testimonial evidence in a criminal prosecution, the Commonwealth must clearly prove its authentication. Because there was no evidence, direct or circumstantial, clearly proving that Mosley was the author of the drug-related text messages, or any corroborating witness testimony regarding authenticity of the messages, we find that the trial court erred in
Hearsay
Even concluding that the text messages were not properly authenticated, we must still address Mosley‘s claims that the text messages were inadmissible hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted and is inadmissible unless it falls within an exception to the hearsay rule. See
Here, the Commonwealth argues that the texts are admissible under the hearsay exception set forth in
With respect to the issue of inadmissible hearsay in Koch, a detective, who was a Commonwealth expert witness, testified that in his opinion the text messages found on the defendant‘s cell phone, in conjunction with other factors (bongs, pipes, large amounts of cash, drug scales) were consistent with drug sales that implicated the defendant, even though the detective conceded that the author of the drug-related text messages could not be definitively ascertained, that several texts were incomplete and that some messages referenced the defendant in the third person. Koch, 39 A.3d at 1002-1003. In addition, the prosecutor acknowledged that the purpose of the text evidence was to show that defendant‘s phone was used in drug transactions, and, therefore, that it makes it more probable than not that when the defendant possessed the drugs she did so with the intent to deliver it as opposed to for personal use. Id. at 1005-06. As a result, the Court concluded that the only relevance of the evidence was to prove the truth of the matter asserted – that there were drug-related text messages on defendant‘s cell phone and, therefore, that admission of the messages was an abuse of discretion and not harmless error. Id. at 1006-07.
Similarly, here Sgt. Rutherford testified that there were several text messages on the cell phones that, in his professional opinion, appeared to involve drug trafficking or setting up deals. N.T. Jury Trial, 9/17/13, at 55.
On direct examination by the prosecution, Sgt. Rutherford testified that the phones contained text messages from various people indicating “there was a sale of narcotics, there was a request for different types of narcotics, drugs, meet, locations, places to meet, things like that.” Id. at 29. Sergeant Rutherford consistently testified to common street terms used in illegal drug sales, the manner in which dealers often stamp their bags of drugs with symbols and wording, and that text messages are often sent to a phone in an attempt to buy drugs. Ultimately, the prosecutor asked Sgt. Rutherford if, based on his expertise, he had formed an opinion that the drugs and cell phones confiscated from Mosley were associated with the distribution of drugs, or just mere possession for personal use, to which he replied:
Yes. A combination. I take into account everything, the totality of everything. You know, a combination of the packaging, the text messages, this is consistent with someone who is involved
with the sale of narcotics. And in this case, different types of narcotics. * * *
A lot of times dealers – I mean, especially with the heroin because the weights can really affect severe jail terms. They don‘t like to carry a whole lot. I mean, they‘d rather have less. A lot of times you‘ll see – in some of the text messages he says what do you need. What do you need because sometimes – depending on where they set up their operation, they may only come out with what you ask for.
Taking into account the content of the texts in this case, as well аs the erroneously admitted evidence of Officer Doyle‘s statement regarding drug activity, we conclude that under Koch the admission of the messages was an abuse of discretion where the texts were admitted to prove the truth of the matter asserted – that Mosley possessed the drugs with the intent to deliver. However, if we discount the improperly admitted text messages and Officer Doyle‘s statement, we conclude that there is substantially similar evidence showing that Mosley possessed the drugs with the intent to deliver. See infra at 23-24. Therefore, we find that the improper admission of the statement and text messages was harmless error, did not unduly prejudice Mosley, and still resulted in a fair trial. See Watson, supra; West, supra; Story, supra.
Sufficiency & Weight of the Evidence
Mosley contends that there was insufficient evidence to prove that he committed the crimes of possession and possession with intent to deliver.
In reviewing a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).
First, Mosley was driving the car from which two clear plastic bags (each containing multiple baggies within) were thrown out of the driver‘s side window. Second, no drugs, paraphernalia or other incriminating drug evidence was found on the passenger in the Cadillac. Third, expert testimony by Sgt. Rutherford confirmed that the packaging, weight and type of drugs, in addition to the $117.00 and cell phones found on Mosley‘s person at the time of his arrest, are all indicative of possessing drugs with the intent to deliver. Accordingly, we find that there was sufficient evidence to support Mosley‘s conviction for possession and possession with the intent to deliver. Cf. Koch, supra at 1007 (Commonwealth failed to present overwhelming properly admitted evidence regarding defendant‘s involvement in drug transactions; prosecution‘s case consisted of text message evidence and that drugs were found in defendant‘s shared
Next, Mosley contends that the verdict is against the weight of the evidence, where the actual possessor of the drugs thrown from the car was not and could not be determined. We disagree.
When a defendant challenges the weight of the evidence, relief in the form of a new trial may be granted only where the verdict shocks one‘s sense of justice. This Court reviews the trial court‘s exercise of discretion in ruling on the weight claim, not the underlying question of whether the verdict was against the weight of the evidence. Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003); Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007), aff‘d 951 A.2d 329 (Pa. 2008). In reviewing the trial court‘s decision concerning the weight of the evidence, an appellate court is not passing on the credibility of witnesses. Commonwealth v. Woody, 679 A.2d 817, 819-20 (Pa. Super. 1996). This is a function that is solely within the provincе of the finder of fact which is free to believe all, part of none of the evidence. Id.
Here, the jury heard the evidence that Mosely was the driver of the black Cadillac, that two bags later identified as containing drugs were discarded from the driver‘s side window while the vehicle was being pursued by the police, and that $117 in U.S. currency, and two cell phones were found on his person upon being stopped and searched. A Commonwealth expert testified that this evidence was indicative of drug possession and
Reopen Suppression Hearing
Mosley next contends that the trial court improperly denied his request, at the end of the suppression hеaring, to reopen the record to permit him to introduce testimony regarding the operation of and access to the cell phones. Specifically, Mosley asserted that because defense counsel was surprised at the hearing by Officer McDevitt‘s testimony regarding the operation of the cell phone, counsel needed proof that in order to view the texts, some affirmative action by the officer (such as swiping or unlocking with a password) needed to occur. Having found that any improper viewing of the text messages, by Officer McDevitt, on the cell phones confiscated incident to Mosley‘s arrest was harmless error in light of the subsequently and independently secured search warrant, we find this issue moot on appeal.
Alleyne Sentencing Issue
Finally, Mosley contends that the trial court‘s application of the mandatory minimum to his sentence is illegal because the United States Supreme Court‘s decision, Alleyne v. United States, 133 S.Ct. 2151 (2013), has rendered the sentencing scheme under section 7508 constitutionally suspect. Additionally, hе claims that even though the jury used a special verdict to allow the factfinder to determine the weight of the drugs possessed, by a reasonable doubt, the verdict still violates section 7508 and its plain legislative intent. We agree.
First, we must address the Commonwealth‘s contention that Mosley has waived this issue on appeal due to his failure to include an Alleyne-based sentence challenge at sentencing, in his post-sentence motion, or in his
Because Mosley‘s claim falls within this narrow ambit of cases and,
In Alleyne, supra, a case concerning the application of a federal mandatory minimum statute, the Supreme Court held that any fact that triggers an increase in the mandatory minimum sentenсe for a crime is necessarily an element of the offense. Id. at 2163-64. The Supreme Court reasoned that “the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime” and consequently, the Sixth Amendment requires that every element of the crime, including any fact that triggers the mandatory minimum, must be alleged in the charging document, submitted to a jury, and found beyond a reasonable doubt. Id. at 2160-64.
In Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), our Court discussed the application of Alleyne to this Commonwealth‘s mandatory minimum statutes:
This term, in Alleyne, the United States Supreme Court expressly overruled Harris, holding that any fact that increases the mandatory minimum sentence for a crime “is ‘an element’ that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155, 2163. The Alleyne majority reasoned that “[w]hile Harris limited Apprendi to facts increasing the statutory maximum, the principle applied in Apprendi applies with equal force to facts increasing the
mandatory minimum.” [Id.] at 2160. This is because “[i]t is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime[,]” and “it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment.” Id. at 2161. Thus, “[t]his reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a nеw, aggravated crime, each element of which must be submitted to the jury.” Id.
Id. at 665. In Munday, the Court held that even where a statute specifically stated that its “provisions . . . shall not be an element of the crime,”16 the sentencing factor [or factual predicate] at issue still had to be determined by the factfinder, beyond a reasonable doubt. Id. at 666. Thus, the Court found that the defendant‘s sentence, which included the mandatory minimum sentence under section 9712.1 (sentences for certain drug offenses committed with firearms), violated the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment. As a result, the Court vacated the defendant‘s judgment of sentence and remanded for resentencing. Id. at 667.
Instantly, Mosley was sentenced pursuant to the mandatory minimum statute, section 7508 of the Sentencing Code, which states, in pertinent part:
(a) General rule. --Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(3) A person who is convicted of violating section 13(a)(14), (30) or (37) оf The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(ii) when the aggregate weight of the compound or mixture containing the substance involved is at least ten grams and less than 100 grams; three years in prison and a fine of $ 15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has bеen convicted of another drug trafficking offense: five years in prison and $ 30,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity[.]
(b) Proof of sentencing. --Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth‘s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
In Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014), the trial court applied the mandatory minimum provisions of section 7508 to the defendant‘s sentence. On appeal, our Court held that because the weight of the drugs possessed by the defendant had not been determined by the fact-finder, nor proven beyond a reasonable doubt, the defendant‘s sentence was illegal and required vacation. Specifically, the Court noted that section 7508(a) cannot be constitutionally applied in light of Alleyne, or it would result in an illegal sentence. Similarly, in Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014), where the defendant stipulated to the weight of the drugs for purposes of applying the mandatory minimum to his sentence, our Court also concluded that section 7508(b), which permits the trial court to find the necessary elements by a preponderance of the evidence, was not severable from the rest of the statute. The Court concluded that stipulating to the drug‘s weight, in effect, allows a trial court to impose a mandatory minimum outside the statutory framеwork, where such procedures are solely within the province of the factfinder. Id. at *20. As a result the Court deemed section 7508 unconstitutional and that any mandatory minimum imposed under this statue is illegal. Id. at *15-18.
Here, the jury was presented with a special verdict form that included the specific issue:
If you find the defendant guilty of Count 4(c): possession with intent to deliver, do you find the defendant guilty of possession with intent to deliver greater than 10 grams of cocaine?
Jury Verdict Form, 9/17/13 (emphasis added). Therefore, the issue regarding the weight of the drugs possessed by Mosley appears to have been determined, beyond a reasonable doubt, by the jury as factfinder. However, our Court has held that trial courts lack the authority to employ special verdict slips in cases involving mandatory minimum sentences that implicatе Alleyne. See Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014); Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).
In reaching its holding, the Newman Court stated:
The Commonwealth‘s suggestion that we remand for a sentencing jury would require this court to manufacture whole cloth a replacement enforcement mechanism for Section 9712.1; in other words, the Commonwealth is asking us to legislate. We recognize that in the prosecution of capital cases in
Pennsylvania, there is a similar, bifurcated process where the jury first determines guilt in the trial proceeding (the guilt phase) and then weighs aggravating and mitigating factors in the sentencing proceeding (the penalty phase). However, this mechanism was created by the General Assembly and is enshrined in our statutes at 42 Pa.C.S.[] § 9711 . We find that it is manifestly the province of the General Assembly to determine what new procedures must be created in order to impose mandatory minimum sentences in Pennsylvania following Alleyne. We cannot do so.
Newman, 99 A.3d at 102. Ultimately, the Valentine Court applied the holding of Newman to conclude that “the trial court performed an impermissible legislative function by creating a new procedure in an effort to impose the mandatory minimum sentences in compliance with Alleyne.” Valentine, 101 A.3d at 811. Because Newman makes it clear that it is the General Assembly‘s function to determine what new procedures must be created to impose mandatory minimum sentences in this Commonwealth, the trial court exceeded its authority by asking the jury to determine the factual predicates of sections 9712(c) and 9713(c). Id. at 812.
Similarly, here the trial court exceeded its authority by permitting the jury, via a special verdict slip, to determine beyond a reasonable doubt the factual predicate of section 7508 – whether Mosley possessed cocaine that weighed greater than 10 grams. Even though the jury responded “yes” to the inquiry, the trial court performed an impermissible legislative function by creating a new procedure in an effort to impose the mandatory minimum sentence in compliance with Alleyne. Accordingly, we must vacate the defendant‘s judgment of sentence and remand for resentencing without the
Convictions affirmed. Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:
Notes
The search warrant identified the following items to be searсhed and seized:
Any and all text messages (incoming and outgoing), email messages (incoming and outgoing), photographs, contacts and other forms of electronic communication. Any items used to keep drug transaction records (spreadsheets etc.). Any and all secondary cell phone applications (and its contents) which are capable of sending receiving voice calls, text messages, and emails. Any and all other contraband.
Application for Search Warrant and Authorization, 2/28/13, at 1, 4.
The trial judge gave the following limiting instruction as to text messages:
This evidence is before you for a limited purpose and it is for the purpose of tending to show the Defendant is fluent in the language used by those persons who deal in illegal drug transactions. This evidence must not be construed by you or considered by you in any way other than for the purpose I just stated. You must not regard this evidence as showing that the Defendant is a person of bad character or criminal tendencies from which you might include - be inclined to infer guilt. The Defendant contends that he is not the trаnsmitter or receiver of the text messages. However, you may consider circumstantial evidence in evaluating this issue and provide whatever weight you deem appropriate thereto.
N.T. Jury Trial, 9/17/13, at 165 (emphasis added).
Interestingly, the trial court stated:
In light of the testimony that‘s been presented[,] I‘m going to say the authentication of electronic communications-like documents, requires more than mere confirmation that the number address belonged to a particular person. Circumstantial evidence which tеnds to corroborate the identity of the sender is required. I‘m going to give that instruction.
N.T. Jury Trial, 9/17/13, at 101. Despite this statement, the court never gave an instruction specifically referencing authentication of the messages; defense counsel objected to this omission. Id. at 112.
Commonwealth v. Johnson, 93 A.3d 806 (Pa. 2014). However, until the Supreme Court overrules the non-waivability language found in Watley, we are bound by that case and its progeny.Whether a challenge to a sentence pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013), implicates the legality of the sentence and is therefore non-waivable.