J-A30016-14

2014 PA Super 261

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CASEEN FENNELL

Appellant No. 2610 EDA 2013

Appeal from the Judgment of Sentence August 12, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013779-2012

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

OPINION BY MUNDY, J.: FILED NOVEMBER 21, 2014

Appellant, Caseen Fennell, appeals from August 12, 2013 aggregate 

judgment of sentence of three to six years’ imprisonment after he was 

convicted of one count each of possession with intent to deliver (PWID) and 

intentional possession of a controlled substance.1 After careful review, we 

vacate and remand for resentencing.

We summarize the relevant factual and procedural history of this case 

as follows. On November 29, 2012, the Commonwealth filed an information, 

charging Appellant with the above-mentioned offenses. On May 1, 2013, 

Appellant proceeded to a bench trial, at the conclusion of which, the trial 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.
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court found Appellant guilty of the same. On August 12, 2013, the trial 

court sentenced Appellant to three to six years’ imprisonment for PWID, and 

no further penalty for the possession charge, as the counts merged for the 

purposes of sentencing. Relevant to this appeal, Appellant received a threeyear mandatory minimum sentence on the basis of the weight of the heroin,

pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i). On August 23, 2013, Appellant 

filed an untimely post-sentence motion, but the trial court did not take any 

action. On September 11, 2013, Appellant filed a timely notice of appeal.2

On appeal, Appellant raises the following issue for our review.

Did not the [trial] court err in applying certain 

provisions of the mandatory minimum sentencing 

statute at 18 Pa.C.S. § 7508 to [Appellant]’s case, 

and thereby sentencing [Appellant] to a term of 

incarceration of 3 to 6 years, in that portions of 

[Section] 7508 are facially unconstitutional pursuant 

to Alleyne v. United States, 133 S. Ct. 2151 

(2013), and are non-severable from the remaining 

portions of the statute?

Appellant’s Brief at 3.

At the outset, we note that issues pertaining to Alleyne go directly to 

the legality of the sentence. Commonwealth v. Lawrence, 99 A.3d 116, 

123 (Pa. Super. 2014). With this in mind, we begin by noting our wellsettled standard of review. “A challenge to the legality of a sentence ... may 

be entertained as long as the reviewing court has jurisdiction.” 

____________________________________________

2 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa. Super. 2011) 

(citation omitted). It is also well-established that “[i]f no statutory 

authorization exists for a particular sentence, that sentence is illegal and 

subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. 

Super. 2014) (citation omitted). “An illegal sentence must be vacated.” Id. 

“Issues relating to the legality of a sentence are questions of law[.] ... Our 

standard of review over such questions is de novo and our scope of review is 

plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) 

(citations omitted).

In this case, Appellant was sentenced under a mandatory minimum 

statute at Section 7508, which provides in relevant part as follows.

§ 7508. Drug trafficking sentencing and 

penalties

(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 

section 13(a)(14), (30) or (37) of The 

Controlled Substance, Drug, Device and 

Cosmetic Act where the controlled substance 

or a mixture containing it is heroin shall, upon 

conviction, be sentenced as set forth in this 

paragraph: 

(i) when the aggregate weight of the 

compound or mixture containing the 

heroin involved is at least 1.0 gram but 

less than 5.0 grams the sentence shall 

be a mandatory minimum term of two 
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years in prison and a fine of $5,000 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 been convicted of another 

drug trafficking offense: a mandatory 

minimum term of three years in prison 

and $10,000 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.

18 Pa.C.S.A. § 7508. 

This Court recently explained Alleyne’s impact on the imposition of 

mandatory minimum sentences as follows.

In Alleyne, the Supreme Court held that “facts that 

increase mandatory minimum sentences must be 

submitted to the jury” and must be found beyond a 

reasonable doubt. Alleyne, supra at 2163. 

Alleyne is an extension of the Supreme Court’s line 

of cases beginning with Apprendi v. New Jersey, 

530 U.S. 466 (2000). In Alleyne, the Court 

overruled Harris v. United States, 536 U.S. 545 

(2002), in which the Court had reached the opposite 

conclusion, explaining that there is no constitutional 
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distinction between judicial fact finding which raises 

the minimum sentence and that which raises the 

maximum sentence.

It is impossible to dissociate the floor of 

a sentencing range from the penalty affixed to 

the crime. Indeed, criminal statutes have long 

specified both the floor and ceiling of sentence 

ranges, which is evidence that both define the 

legally prescribed penalty. This historical 

practice allowed those who violated the law to 

know, ex ante, the contours of the penalty that 

the legislature affixed to the crime—and 

comports with the obvious truth that the floor 

of a mandatory range is as relevant to 

wrongdoers as the ceiling. A fact that 

increases a sentencing floor, thus, forms an 

essential ingredient of the offense.

Moreover, it is impossible to dispute that 

facts increasing the legally prescribed floor 

aggravate the punishment. Elevating the lowend of a sentencing range heightens the loss of 

liberty associated with the crime: the 

defendant’s expected punishment has 

increased as a result of the narrowed range 

and the prosecution is empowered, by invoking 

the mandatory minimum, to require the judge 

to impose a higher punishment than he might 

wish. Why else would Congress link an 

increased mandatory minimum to a particular 

aggravating fact other than to heighten the 

consequences for that behavior? This reality 

demonstrates that the core crime and the fact 

triggering the mandatory minimum sentence 

together constitute a new, aggravated crime, 

each element of which must be submitted to 

the jury.

Alleyne, supra at 2160-2161 (internal quotation marks 

and citations omitted).
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Commonwealth v. Miller, --- A.3d ---, 2014 WL 4783558, *4-5 (Pa. 

Super. 2014). Although Appellant was convicted at a bench trial, under the 

Due Process Clause, he was still entitled to have the extra element of the 

aggravated offense found by the factfinder beyond a reasonable doubt 

pursuant to Alleyne and In re Winship, 397 U.S. 358 (1970). Alleyne, 

supra at 2156.

This Court has recently noted that Section 7508(a)(2)(ii) cannot be 

constitutionally applied in light of Alleyne, resulting in an illegal sentence. 

See Commonwealth v. Thompson, 93 A.3d 478, 493 (Pa. Super. 2014) 

(resolving an as-applied challenge to Section 7508(a)(2)(ii) in Thompson’s 

favor in light of Alleyne and remanding for resentencing). However, in this 

case, Appellant argues that Section 7508 is facially unconstitutional in its 

entirety and its subsections cannot be severed from one another. 

Appellant’s Brief at 13-22. The Commonwealth counters that because 

Appellant stipulated to the drug weight for the purposes of trial, any error 

regarding Alleyne was rendered harmless. Commonwealth’s Brief at 10-12. 

Both parties cite to this Court’s recent decision in Commonwealth v. 

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

In Newman, this Court confronted the same type of challenge to the 

mandatory minimum found at Section 9712.1, regarding the distance 

between drugs and guns. Id. at 91. Section 9712.1 has the same format 

as Section 7508 in that one subsection contains the added element of the 
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aggravated offense, and another subsection states that the elements shall 

be found by the trial court by a preponderance of the evidence. See id., 

quoting 42 Pa.C.S.A. §§ 9712.1(a), 9712.1(c); 18 Pa.C.S.A. 

§§ 7508(a)(7)(i), 7508(b).

The Newman Court first concluded that the defendant’s sentence was 

illegal in light of Alleyne and required this Court to vacate and remand for 

resentencing. Id. at 98. However, this Court noted that Alleyne issues are 

subject to harmless error analysis, but nevertheless concluded that the 

Alleyne issue in Newman was not harmless. Id. at 98-100.

We cannot find that the error here was 

harmless, because the evidence as to the element of 

“in close proximity” was not necessarily 

overwhelming. As previously noted, the drug 

contraband was found in a bathroom. The firearm 

was found under a mattress in a bedroom across the 

hallway, and the actual distance between the 

contraband and the firearm was six to eight feet. 

Recently, our supreme court discussed at length the 

meaning of “in close proximity” as it is used in 

Section 9712.1. See Commonwealth v. Hanson,

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

court noted that the concept of “in close proximity” is 

inherently imprecise and observed the differing 

conclusions as to its meaning both among the courts 

of this Commonwealth and among the courts of 

other jurisdictions. Hanson, 82 A.3d at 1037–1038, 

and otherwise, generally. If learned jurists cannot 

decide with precision what constitutes “in close 

proximity,” we cannot say with finality that a panel 

of lay jurors would undoubtedly conclude from the 

evidence here that the firearm was “in close 

proximity” to the drug contraband.
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Id. at 99-100. Finally, this Court rejected the Commonwealth’s argument 

that if the error was not harmless, the appropriate remedy would be to 

remand to the trial court to empanel a second sentencing jury. Specifically, 

in rejecting this argument, the Newman Court concluded that Section 

9712.1 in its entirety must be struck down as unconstitutional in light of 

Alleyne, concluding that its subsections were not severable.3

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.A. § 

9711. We find that it is manifestly the province of 

the General Assembly to determine what new 

procedures must be created in order to impose 

mandatory minimum sentences in Pennsylvania 

following Alleyne. We cannot do so.

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3 The author in this case concurred in the result in Newman, disagreeing 

with the majority that the subsections of Section 9712.1 could not be 

severed, concluding that no special “mechanism” was required to allow a 

jury to find the element of the aggravated offense beyond a reasonable 

doubt. Id. at 105 (Mundy, J., concurring). The author continues to believe 

Newman was wrongly decided on that point; however, it is binding on this 

Court and must be applied in a principled manner in all future cases unless 

reversed by our Supreme Court.
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Id. at 102.4

In the case sub judice, during trial, Appellant stipulated to certain 

laboratory reports. N.T., 5/1/13, at 59-60. Relevant to this appeal, one 

laboratory report was for 55 clear packets of a substance, the packets were 

labeled “Magnet,” and the substance was an “off-white powder.” N.T., 

5/1/13, Commonwealth’s Exhibit C-4, at 1. The report noted that one 

packet was analyzed as containing heroin and weighed 37 milligrams. Id. 

The report also noted that the “packaging and material ... [were] consistent 

in appearance.” Id. Therefore, the Commonwealth argues, and the trial 

court concluded, that the remaining 54 packets contained at least 37 

milligrams as well, which in the aggregate, would bring the total weight to 

2.035 grams. Commonwealth’s Brief at 5 n.2; Trial Court Opinion, 1/16/14, 

at 5-6. Based on this, the Commonwealth argues that any Alleyne error 

was harmless. Commonwealth’s Brief at 8.

However, we are mindful of this Court’s recent decision in 

Commonwealth v. Valentine, --- A.3d ---, 2014 WL 4942256 (Pa. Super. 

2014). In Valentine, the Commonwealth sought to have a mandatory 

minimum sentence imposed against the defendant. The trial court allowed 

the Commonwealth to amend the information to include the necessary 

____________________________________________

4 We note the Commonwealth has filed a petition for allowance of appeal 

with our Supreme Court in Newman, docketed at 646 MAL 2014. As of the 

date of this decision, it is still pending.
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additional elements required by Alleyne to be found by the jury beyond a 

reasonable doubt. Id. at *1. The two questions were submitted to the jury, 

and it found the additional elements beyond a reasonable doubt. Id. As a 

result, the trial court imposed the appropriate mandatory minimum 

sentences pursuant to the appropriate statutes. Id.

Although the trial court seemingly followed Alleyne’s requirements, 

the Valentine Court held that the trial court was not permitted to allow the 

jury to resolve the mandatory minimum questions absent legislative action 

in accordance with Newman.

Here, the trial court permitted the jury, on the 

verdict slip, to determine beyond a reasonable doubt 

whether Appellant possessed a firearm that placed 

the victim in fear of immediate serious bodily injury 

in the course of committing a theft for purposes of 

the mandatory minimum sentencing provisions of 42 

Pa.C.S.A. § 9712(a), and whether the crime occurred 

in whole or in part at or near public transportation, 

for purposes of the mandatory minimum sentencing 

provisions of 42 Pa.C.S.A. § 9713(a). The jury 

responded “yes” to both questions. In presenting 

those questions to the jury, however, we conclude, 

in accordance with Newman, 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.

The trial court erroneously presupposed that 

only Subsections (c) of both 9712 and 9713 (which 

permit a trial judge to enhance the sentence based 

on a preponderance of the evidence standard) were 

unconstitutional under Alleyne, and that 

Subsections (a) of 9712 and 9713 survived 

constitutional muster. By asking the jury to 

determine whether the factual prerequisites set forth 
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in § 9712(a) and § 9713(a) had been met, the trial 

court effectively determined that the unconstitutional 

provisions of § 9712(c) and § 9713(c) were 

severable. Our decision in Newman however holds 

that the unconstitutional provisions of § 9712(c) and 

§ 9713(c) are not severable but “essentially and 

inseparably connected” and that the statutes are 

therefore unconstitutional as a whole. Id. at 13–14. 

(“If Subsection (a) is the predicate arm ... then 

Subsection (c) is the enforcement arm. Without 

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

determine whether the predicate of Subsection (a) 

has been met.”).

Moreover, Newman makes clear 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.” Newman at 14. 

Therefore, the trial court lacked the authority to 

allow the jury to determine the factual predicates of 

§§ 9712 and 9713. See Newman at 14–15 

(recognizing that several trial courts of this 

Commonwealth have found Section 9712.1 as a 

whole to be no longer workable without legislative 

guidance).

Id. at *8. As a result, this Court vacated Valentine’s judgment of sentence 

and remanded for resentencing, without the applicable mandatory minimum 

sentences.5 Id. at *9.

____________________________________________

5 As noted above, Newman did acknowledge that Alleyne errors, like those 

under Apprendi v. New Jersey, 530 U.S. 466 (2000), are subject to 

harmless error analysis. See generally Newman, supra at 98-100. 

However, if Newman’s overriding conclusion is, as Valentine suggests, that 

mandatory minimum statutes in Pennsylvania must be stricken in their 

entirety as facially unconstitutional, any discussion of harmless error is 

rendered moot. This is because, once the Court concludes that the 

subsections cannot be severed and must all be struck down, there is no 

(Footnote Continued Next Page)
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In the instant case, as noted above, Appellant stipulated to laboratory 

reports that, at a minimum, suggest that the total weight of the heroin was 

2.035 grams. N.T., 5/1/13, at 60-62, Commonwealth’s Exhibit C-4. As a 

result, the trial court concluded that the Commonwealth did prove this 

element to the trial court beyond a reasonable doubt, as required by 

Alleyne and Winship. Trial Court Opinion, 1/16/14, at 5-6. However, the 

trial court’s opinion reveals that this conclusion was solely premised on its 

belief that Section 7508(b), which permits the trial court to find the 

necessary elements by a preponderance of the evidence, was severable from 

the rest of the statute. Id. at 3-5. Pursuant to this Court’s decision in 

Newman, this conclusion was not correct. 

Furthermore, we see no meaningful difference, for the purposes of 

Newman and Valentine between submitting the element to the jury and 

accepting a stipulation from a defendant. They both have the purpose of 

finding a method to impose a mandatory minimum sentence outside the 

statutory framework, but consistent with Alleyne. However, both Newman

and Valentine unequivocally state that creating a new procedure in an 

effort to impose a mandatory minimum sentence is solely within the 

province of the legislature. See Newman, supra; Valentine, supra. 

(Footnote Continued) _______________________

statutorily authorized sentence upon which a harmless error analysis may be 

applied. See, e.g., Rivera, supra (stating, “[i]f no statutory authorization 

exists for a particular sentence, that sentence is illegal and subject to 

correction[]”) (citation omitted).
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While submission to a jury is a more formal and involved procedure, we 

decline to fracture Newman and Valentine further by concluding that when 

read together, they only prohibit formal mandatory minimum procedures, 

but permit informal ones. Based on these considerations, we conclude that 

the trial court erred in imposing the mandatory minimum sentence in this 

case. As a result, Appellant is entitled to relief.

Based on the foregoing, we are constrained to conclude the trial court 

erred in imposing the mandatory minimum sentence in light of this Court’s 

recent decisions in Newman and Valentine. Accordingly, the trial court’s 

August 12, 2013 judgment of sentence is vacated, and the case is remanded 

for resentencing, without the mandatory minimum, consistent with this 

opinion.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2014