J-S63027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANDRE LAMONT SPANGLER

Appellant No. 277 MDA 2014

Appeal from the Judgment of Sentence March 15, 2011

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0002280-2009

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

MEMORANDUM BY PANELLA, J. FILED DECEMBER 02, 2014

Appellant, Andre Lamont Spangler, appeals from the judgment of 

sentence entered March 15, 2011. After careful review, we affirm.

Spangler pled guilty to various drug related offenses based upon 

allegations of multiple sales of cocaine. The trial court initially sentenced 

Spangler to a term of incarceration of 10 to 20 years. After considering 

Spangler’s post-sentence motions, however, the trial court resentenced 

Spangler to an aggregate term of imprisonment of 7 to 14 years.

Spangler subsequently filed a petition pursuant to the Post Conviction 

Relief Act (“PCRA”), through which his direct appeal rights were reinstated

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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nunc pro tunc by PCRA court order dated January 10, 2014. This timely 

appeal followed.

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

1. Should Mr. Spangler be resentenced due to sentencing 

entrapment and/or sentencing manipulation?

a. Did law enforcement engage in sentencing entrapment 

and/or sentencing manipulation in the course of its 

investigation?

b. Is Appellant entitled to a new sentence due to 

sentencing entrapment and/or sentencing 

manipulation?

2. Is 18 Pa.C.S.A. § 7508 unconstitutionally vague?

3. Does 18 Pa.C.S.A. § 7508 violate the equal protection 

clauses?

4. Is 18 Pa.C.S.A. § 7508 unconstitutional as applied in this case 

since it constitutes cruel and unusual punishment?

Appellant’s Brief, at 7.

Spangler concedes that his first issue is waived due to his failure to 

raise it in the trial court. See Appellant’s Brief, at 13. He is therefore due 

no relief on his first argument.

Spangler’s next three arguments all raise challenges to the 

constitutionality of 18 Pa.C.S.A. § 7508. The Commonwealth contends that 

two of these issues are waived due to Spangler’s failure to raise any 

challenges to the constitutionality of his sentence in the trial court. Spangler 

counters that pursuant to Commonwealth v. Foster, 17 A.3d 332 (Pa. 

2011), any challenge to the imposition of a mandatory sentence constitutes 

a challenge to the legality of the sentence. See Commonwealth v. Foster, 
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17 A.3d 332 (Pa. 2011). The Commonwealth does not address the 

applicability of Foster.

1

 In Foster, the Supreme Court of Pennsylvania was asked to review 

this Court’s decision to vacate a mandatory minimum sentence. In 

particular, the Supreme Court of Pennsylvania was required to review the 

predicate conclusion that a challenge to the imposition of a mandatory 

minimum sentence that was still within statutory guidelines constituted a 

non-waivable challenge to the legality of the sentence. See 17 A.3d at 334.

It is true that the Supreme Court unanimously affirmed this Court’s 

vacation of the mandatory minimum sentence. However, it is equally true 

that no single rationale for the vacation of the sentence garnered the 

support of a majority of the Justices. The lead opinion was authored by 

Justice Baer, and joined by Justices Todd and McCaffery. The lead opinion 

states that the legality of the sentence imposed is

only implicated when a sentencing court’s inherent, 

discretionary authority to wield its statutorily prescribed 

sentencing powers is supplanted, abrogated, or otherwise 

limited, or the legislature’s intent in fashioning a sentence 

has been potentially misapplied. In our view, there is 

little doubt that when a sentencing court has no 

alternative but to impose a certain minimum sentence, its 

authority to act has been infringed upon. Thus, under 

this Commonwealth’s jurisprudence, any challenge 

thereunder must relate to a sentence’s legality. 

____________________________________________

1 This Court has previously addressed the application of Foster en banc in 

Commonwealth v. Boyd, 73 A.3d 1269 (Pa. Super. 2013). The following 

analysis of Foster is substantially similar to that contained in Boyd.
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Foster, 17 A.3d at 344. 

Under this reasoning, it is arguable that Spangler’s claims on appeal 

implicate the legality of his sentence. Section 7508 clearly limits the 

sentencing court’s discretion in imposing sentence; the court is mandated to 

impose certain minimum sentences if specific circumstances are met. See 

18 Pa.C.S.A. § 7508. The sentencing court’s authority to act in this manner 

has been limited by the legislature. Therefore, under the reasoning quoted 

from the lead opinion in Foster, a claim that the imposition of a mandatory 

minimum sentence under Section 7508 is unconstitutional is one that 

implicates the legality of the sentence and is therefore not subject to waiver.

As noted above, however, the lead opinion in Foster did not receive 

the support of a majority of the Justices. Three separate concurring opinions 

were penned, cumulatively receiving the votes of the remaining four 

Justices. A close reading of the three concurring opinions reveals that the 

lead opinion’s reasoning was rejected by a majority of the Court.

Chief Justice Castille authored a concurring opinion, joined by Justice 

Orie Melvin, that is critical of the reasoning employed by the lead opinion: 

“The difficulty here is that, to make the case fit within its paradigm, the lead 

Justices adopt an overly broad rule redefining the concept of ‘illegal 

sentence.’” Id., at 347. Chief Justice Castille’s opinion expressed doubt 

that the discretionary versus legality dichotomy is appropriate to deal with 

all possible sentencing claims. See id., at 350. Instead, the concurrence 
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would reserve the label of “legality” for claims that are “obvious, undeniable, 

and capable of even administration, so much so that the claim may be raised 

sua sponte.” Id., at 352. Instead of applying the dichotomy 

mechanistically, Chief Justice Castille’s concurring opinion favored “an 

approach that would weigh the nature and gravity of the substantive 

sentencing claim against the values served by the specific normative default 

principle (here, issue preservation) at issue.” Id., at 352. Thus, it is clear 

that Chief Justice Castille and Justice Orie Melvin did not agree with the 

reasoning employed by the lead opinion.

Justice Saylor authored a second concurring opinion, in which he 

stated:

To the degree [the lead opinion] reflects that review of 

legality-of-sentence claims had been made available in 

limited categories of cases beyond those involving claims 

that sentences statutory maximums – despite nonadherence to ordinary principles of issue preservation and 

presentation – I support its reasoning and holding.

To the extent, however, the lead opinion conceives a rule 

of general application and/or sanctions, as the 

reviewability litmus, application of the dichotomy between 

claims of legal error and discretionary aspects of 

sentencing ... I hold a different view similar to that of Mr. 

Chief Justice Castille.

Id., at 355. Justice Saylor further indicated that he agreed with Chief 

Justice Castille’s opinion that “assessment of whether additional categories 

of claims will qualify is necessarily an evaluative one ....” Id., at 356. Thus, 

it appears that Justice Saylor agreed with the lead opinion that a claim that 
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a mandatory minimum sentence was improperly imposed based upon the 

record is properly classified as an illegal sentence. However, it also appears 

that Justice Saylor eschewed the lead opinion’s explicit reasoning for this 

conclusion in favor of Chief Justice Castille’s balancing test.

Finally, Justice Eakin wrote a concurring opinion, joined by Chief 

Justice Castille. This concurring opinion opined that, so long as the sentence 

remains within the statutory limits, it cannot be considered illegal. See id., 

at 356. As a result, Justice Eakin agreed with “Chief Justice Castille’s view 

that this case concerns retroactivity, and the lead opinion needlessly 

redefined illegality ....” Id. It is therefore clear that Justice Eakin rejected

the reasoning employed in the lead opinion.

Thus, we conclude that four Justices rejected the lead opinion’s 

application of the “bright line” test, and implicitly this Court’s line of en banc 

cases that have followed such a test, and instead favored some form of 

balancing test when evaluating whether a sentencing claim is subject to 

waiver for procedural defaults. The exact contours of the balancing test are 

not well-defined, and may, in fact, be a source of contention even between 

the four Justices favoring such a test. We are therefore left to balance the 

interests involved based upon the circumstances of the case presently before 

us relative to the circumstances present in Foster.

Here, Spangler’s first constitutional challenge asserts that Section 

7508 violates the Due Process clause due to vagueness concerns. In order 
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to avoid due process concerns, a statute must not be vague. See 

Commonwealth v. Habay, 934 A.2d 732, 737 (Pa. Super. 2007). “The 

due process standards of the Federal and Pennsylvania Constitutions are 

identical.” Commonwealth v. Scott, 878 A.2d 874, 878 n.4 (Pa. Super. 

2005) (citations omitted). The void-for-vagueness doctrine “requires that a 

penal statute define the criminal offense with sufficient definiteness that 

ordinary people can understand what conduct is prohibited and in a manner 

that does not encourage arbitrary and discriminatory enforcement.” 

Commonwealth v. Duda, 923 A.2d 1138, 1147 (Pa. 2007) (citations 

omitted). Thus, “a penal statute must set forth a crime with sufficient 

definiteness that an ordinary person can understand and predict what 

conduct is prohibited. The law must provide reasonable standards which 

people can use to gauge the legality of their contemplated, future behavior.” 

Habay, 934 A.2d at 737 (citations omitted). This specificity requirement 

does not require a statute to “detail criminal conduct with utter precision,” 

as these competing principles are “rooted in a rough idea of fairness.” Id. 

(citations omitted). Accordingly, “statutes may be general enough to 

embrace a range of human conduct as long as they speak fair warning about 

what behavior is unlawful.” Id. (citations omitted).

We conclude that since a void for vagueness challenge requires a 

reference to “a rough idea of fairness,” it is not the sort of claim that 

qualifies as non-waivable under the balancing test favored by the four 
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concurring Justices in Foster. This issue is not obvious or undeniable. Nor 

is it capable of even administration, as different jurists can have different 

conceptions of fairness. Thus, we conclude that Spangler’s void for 

vagueness challenge has been waived.

Next, Spangler argues that Section 7508 violates the equal protection 

clause. The equal protection clause of the Fourteenth Amendment to the 

Constitution of the United States provides that “like persons in like 

circumstances will be treated similarly.” Curtis v. Kline, 254, 666 A.2d 

265, 267 (Pa. 1995). Under an equal protection analysis, there are three 

recognized categories of governmental classification, each requiring a 

separate standard of scrutiny. See Commonwealth v. Hilliar, 943 A.2d 

984, 996 (Pa. Super. 2008) (citation omitted). Each standard of scrutiny 

requires a jurist to determine whether the challenged law is related to its 

claimed objective. See id. The higher standards of scrutiny require a jurist 

to evaluate the importance of the claimed governmental objective. See id.

Under these standards, we fail to see how Spangler’s equal protection 

claim could be termed “obvious” or “undeniable.” Nor is such a claim 

capable of even administration, as different jurists can have different 

conceptions of the importance of given governmental objectives. Thus, we 

conclude that Spangler’s equal protection challenge is waived for his failure 

to preserve it below.
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Finally, Spangler argues that Section 7508 constitutes cruel and 

unusual punishment in violation of the eighth amendment. Unlike Spangler’s 

other challenges to the constitutionality of Section 7508, his eighth 

amendment challenge is non-waivable. An appellant who challenges the 

constitutionality of his sentence of imprisonment on a claim that it violates 

his Eighth Amendment rights raises a legality of the sentencing claim. See 

Commonwealth v. Robinson, 82 A.3d 998, 1020 (Pa. 2013). On issues of 

law our scope of review is plenary and our standard of review is de novo. 

See Commonwealth v. Bullock, 913 A.2d 207, 212 (Pa. 2006). A 

punishment is cruel and unusual “only if it is so greatly disproportionate to 

an offense as to offend evolving standards of decency or a balanced sense of 

justice.” Commonwealth v. Ehrsam, 512 A.2d 1199, 1210

(Pa. Super. 1986).

Spangler’s argument consists of noting the growing consensus that 

mandatory sentences for non-violent drug offenders constitute a poor policy 

choice. See Appellant’s Brief, at 23-25. However, even accepting this 

proposition at face value, it is far from establishing that the mandatory 

seven-year sentence at issue here offends evolving standards of decency or 

a balanced sense of justice. The trial court imposed the minimum sevenyear sentence after Spangler pled guilty to 38 crimes. We do not find a 

seven-year sentence to be a grossly disproportionate consequence for the 

commission of 38 crimes.
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As we conclude that none of Spangler’s issues on appeal merit relief, 

we affirm the judgment of sentence. 

Judgment of sentence affirmed. Jurisdiction relinquished.

Judge Bowes files a concurring memorandum. 

Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2014