J. S03011/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

TYRONE DWAYNE CURTIS, : No. 1273 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, May 23, 2013,

in the Court of Common Pleas of Delaware County

Criminal Division at No. CP-23-CR-0003550-2012

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 11, 2015

Appellant appeals the judgment of sentence imposed following his 

conviction on drug and firearm offenses. Finding that appellant was 

improperly sentenced under a mandatory minimum sentencing statute that 

has since been declared unconstitutional, we will vacate the judgment of 

sentence and remand for resentencing.

The trial court accurately summarized the factual background:

On March 24, 2012, Trooper Brian Richardson 

of the Pennsylvania State Police executed a traffic 

stop on a silver Ford Edge SUV that was traveling 

southbound on I-95. Prior to initiating the traffic 

stop, Trooper Richardson clocked the vehicle for over 

0.3 miles traveling 64 mph in a properly posted 

55 mph zone. The Trooper followed the vehicle for 

approximately one mile before activating his 

emergency lights and pulling the vehicle over. A 

registration search revealed the owner of the vehicle 
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was Spallco, a rental company. The vehicle was not 

reported stolen.

Upon approaching the driver’s side of the 

vehicle to request driver identification and 

registration information, Trooper Richardson smelled 

the strong odor of raw marijuana. The driver, later 

identified as [appellant], did not have a driver’s 

license or other proof of identification on his person 

and identified himself as “Keith Williams.” 

[Appellant] provided a Maryland address, date of 

birth and Social Security Number. [Appellant] 

advised Trooper Richardson that the vehicle was 

rented by a family friend and that he did not have 

any rental documentation. The passenger identified 

himself as John Barrett (the “Defendant”) via his 

Delaware driver’s license.

Trooper Richardson returned to his patrol 

vehicle and conducted a CLEAN/NCIC query on both 

parties. The search of the name and date of birth 

given by the driver revealed no social security 

number, and a search of the social security number 

provided by driver revealed a different name. 

Criminal history of the passenger, Defendant Barrett, 

revealed an extensive criminal history, including 

drug convictions.

Trooper Richardson requested back-up, and an 

officer from Tinicum Police Department arrived on 

scene and pulled in front of the suspect vehicle with 

lights activated. Trooper Richardson exited his 

patrol vehicle and asked the driver, [appellant], to 

exit the vehicle. Trooper Richardson conducted a 

pat-down search of [appellant] and then requested 

he sit on the bumper of the patrol vehicle. 

Trooper Richardson then approached the passenger 

side of the vehicle and requested that the passenger, 

Co-Defendant Barrett, exit the vehicle. As Barrett 

opened the door to exit the vehicle, 

Trooper Richardson viewed a blue and tan “Polo” bag 

being held up behind Defendant Barrett’s calves 

below the front passenger seat. Trooper Richardson 

conducted a pat-down search and then requested 
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that Barrett go to where driver was sitting in front of 

the patrol car.

Trooper Richardson approached [appellant] 

and asked him for consent to search the vehicle. 

[Appellant] signed the Pennsylvania State Police 

Waiver of Rights and Consent to Search form with 

the name “Keith Williams” in the consenter line.

After receiving consent to search, 

Trooper Richardson conducted a hand search of the 

vehicle. A search of the blue and tan polo bag 

revealed it contained 7 containers containing 

suspected Marijuana, one digital scale, 9 empty 

containers commonly used to contain Marijuana, and 

one Bersa 380 ACP handgun which was loaded with 

7 rounds of ammunition.

Trial court opinion, 7/7/14 at 1-2.

On March 21, 2013, a jury convicted appellant of possession of a 

controlled substance with intent to deliver (“PWID”), criminal conspiracy, 

receiving stolen property, carrying a firearm without a license, and false 

identification to law enforcement authorities.1 On March 22, 2013, the trial 

court additionally found appellant guilty of persons not to possess firearms 

and driving while license is suspended, DUI related.2 On May 23, 2013, 

appellant was sentenced to an aggregate term of 8 to 16 years’ 

imprisonment plus 8 years’ probation. Pursuant to 42 Pa.C.S.A. 

 

1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903(c), 3925(a), 6106(a)(1), 

and 4914(a), respectively.

2 18 Pa.C.S.A. § 6105 and 75 Pa.C.S.A. § 1543(b)(1), respectively. 

Appellant agreed to a bench trial as to the persons not to possess firearms 

count and the other count is a summary offense.
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§ 9712.1(a), appellant received a mandatory minimum sentence for PWID of 

5 to 10 years because he possessed a firearm with the controlled substance.

Appellant did not immediately file a notice of appeal. On March 21, 

2014, the trial court granted appellant’s petition to reinstate his direct 

appeal rights nunc pro tunc. This timely appeal followed.

Appellant raises the following issues on appeal:

I. Whether the Court erred in denying 

defendant’s Motion to Suppress the marijuana 

and handgun seized from the blue and tan 

canvas Polo bag since the investigating officer 

searched the bag without a search warrant, the 

requisite probable cause, reasonable suspicion 

or valid consent[?]

II. Whether the trial court’s sentence pursuant to 

the mandatory minimum statute, is proper and 

constitutional in light of Alleyne v. United 

States, 133 S.Ct. 2151 (2013) and 

Commonwealth v. Newman, 2014 PA Super 

178 (2014)[?]

Appellant’s brief at 4. We will address these matters in the order presented.

Our standard of review in addressing a challenge to 

the denial of a suppression motion is limited to 

determining whether the suppression court’s factual 

findings are supported by the record and whether 

the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed 

before the suppression court, we may consider only 

the evidence of the Commonwealth and so much of 

the evidence for the defense as remains 

uncontradicted when read in the context of the 

record as a whole. Where the suppression court’s 

factual findings are supported by the record, we are 

bound by these findings and may reverse only if the 

court’s legal conclusions are erroneous. Where . . . 

the appeal of the determination of the suppression 
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court turns on allegations of legal error, the 

suppression court’s legal conclusions are not binding 

on an appellate court, whose duty it is to determine 

if the suppression court properly applied the law to 

the facts. Thus, the conclusions of law of the courts 

below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), quoting 

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations 

omitted), cert. denied, Jones v. Pennsylvania, 562 U.S. 832 (2010).

The trial court properly denied suppression. In order for a search to 

be deemed unreasonable and unconstitutional, a defendant has to 

demonstrate that he or she has an expectation of privacy in the place that is 

searched. Commonwealth v. Edwards, 874 A.2d 1192, 1195 (Pa.Super. 

2005). Instantly, the car that was searched was not owned by appellant, 

but was a rental vehicle that appellant claimed was rented by a friend. 

However, at the suppression hearing, appellant presented no evidence that 

he had permission to operate the vehicle or had any other legitimate 

connection to the vehicle. Under similar circumstances, our courts have 

found that no expectation of privacy has been shown.

In the instant case, the vehicle was not owned 

by Appellant. The vehicle was not registered in 

Appellant’s name. Appellant offered no evidence 

that he was using the vehicle with the authorization 

or permission of the registered owner. Appellant 

offered no evidence to explain his connection to the 

vehicle or his connection to the registered owner of 

the vehicle. Appellant failed to demonstrate that he 

had a reasonably cognizable expectation of privacy in 

a vehicle that he did not own, that was not 
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registered to him, and for which he has not shown 

authority to operate.

Commonwealth v. Burton, 973 A.2d 428, 436 (Pa.Super. 2009).

At the suppression hearing, Maldonado bore the 

burden of establishing that he had a reasonable 

expectation of privacy in the automobile. Id. at 435. 

At the suppression hearing, the Commonwealth 

presented only the testimony of Officer Buckman, 

and Maldonado did not present any witnesses. The 

evidence elicited at that time establishes that the 

vehicle was owned by Vasquez. Officer Buckland 

testified, on cross-examination, that Maldonado told 

him that Vasquez was his girlfriend and that they 

lived together at the address to which the vehicle 

was registered. N.T., 7/6/09, at 18-19. However, 

there was no evidence that Maldonado had 

permission from Vasquez to drive the car. When 

Maldonado’s counsel asked Officer Buckman whether 

Maldonado told him that Vasquez had given him 

permission to drive her car, Officer Buckman stated 

only that he did not recall asking Maldonado that 

question. Id. at 19. Of note, although it appears 

that Vasquez attended the suppression hearing, 

Maldonado did not call her to testify that she had 

given Maldonado permission to drive her car on the 

day in question.

The fact that Maldonado and Vasquez might 

have lived together and had a romantic relationship 

does not foreclose the possibility that Maldonado was 

driving Vasquez’s vehicle without her knowledge or 

permission. For that reason, we conclude that 

Maldonado failed to establish an expectation of 

privacy in the vehicle he was driving, which “he did 

not own, that was not registered to him, and for 

which he has not shown authority to operate.” We 

therefore reverse the trial court’s order granting 

Maldonado’s motion to suppress.

Commonwealth v. Maldonado, 14 A.3d 907, 911-912 (Pa.Super. 2011) 

(footnotes and citations omitted).
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Instantly, the car at issue was a rental vehicle not rented in appellant’s 

name and appellant did not present evidence that he had the permission of 

the person who rented the vehicle to operate it. Consequently, appellant 

has not demonstrated an expectation of privacy and cannot attack the 

search as unreasonable and unconstitutional.

Appellant cites United States v. Kennedy, 638 F.3d 159 (3rd Cir. 

2011), cert. denied, Kennedy v. U.S., 132 S.Ct. 997 (2012), for the 

proposition that a person who borrows a rental car but is not an authorized 

driver under the rental agreement has a reasonable expectation of privacy in 

the car. (Appellant’s brief at 9.) Appellant has misread Kennedy. In fact, 

Kennedy holds that a person who has the permission of the renter to 

operate the rental car, but is not an authorized driver under the rental 

agreement, has no expectation of privacy in the vehicle. Kennedy, 638 

F.3d at 165. Thus, Kennedy affords appellant no relief.

Moreover, even if appellant had an expectation of privacy in the car, 

the police had probable cause to search the vehicle. The police observed

appellant’s vehicle travelling at 64 m.p.h. in an area zoned for 55 m.p.h. for 

a distance in excess of three-tenths of a mile. Thus, the police witnessed a 

speeding violation pursuant to 75 Pa.C.S.A. § 3368(a), and had probable 

cause to conduct a vehicle stop. Thereafter, when the officers approached 

the car and detected the strong odor of raw marijuana, they had probable 

cause to suspect that appellant’s vehicle contained a controlled substance 
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and were permitted to search the vehicle under the automobile exception to 

the ordinary warrant requirement. Commonwealth v. Gary, 91 A.3d 102 

(Pa. 2014).3

Appellant cites United States v. Chadwick, 433 U.S. 1 (1977), for 

the proposition that the automobile exception to the warrant requirement 

does not extend to closed containers found within the automobile and seized 

by police. However, the United States Supreme Court subsequently 

overruled Chadwick, permitting closed containers found in the automobile 

to be searched. California v. Acevedo, 500 U.S. 565, 579-581 (1991). 

We find that the trial court properly denied suppression.

We now turn to appellant’s second issue pertaining to the 

constitutionality of his mandatory minimum sentence following the decisions 

in Alleyne v. United States and Commonwealth v. Newman, 99 A.3d 86 

(Pa.Super. 2014). Alleyne held that any fact that served to aggravate the 

minimum sentence could not be considered a sentencing factor determined 

by the trial court by a preponderance of the evidence, but had to be found 

 

3

In Gary, our supreme court recently decided that Pennsylvania’s 

automobile exception to the warrant requirement was in accord with current 

federal jurisprudence; that is, that only probable cause and no exigency 

beyond the inherent mobility of a motor vehicle is required to permit a 

warrantless vehicle search. We note in passing that the supreme court 

issued Gary under the caption “Opinion Announcing the Judgment of the 

Court,” which the supreme court commonly employs when rendering a 

plurality opinion. However, our reading of Justice Saylor’s concurrence 

indicates to us that he fully joins the three-Justice Majority. Consequently, 

we do not regard Gary as a plurality opinion.
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by a jury beyond a reasonable doubt. Newman ruled that Alleyne

specifically rendered the mandatory minimum sentencing provision under 

which appellant was sentenced, 42 Pa.C.S.A. § 9712.1, unconstitutional.

The mandatory minimum sentencing provision at issue reads as 

follows:

(a) Mandatory sentence.--Any person who is 

convicted of a violation of section 13(a)(30) of 

the act of April 14, 1972 (P.L. 233, No. 64), 

[PWID] known as The Controlled Substance, 

Drug, Device and Cosmetic Act, 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, concealed about 

the person or the person’s accomplice 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.

(c) Proof at sentencing.--Provisions of this 

section shall not be an element of the crime, 

and notice thereof 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 any 

evidence presented at trial and shall afford the 

Commonwealth and the defendant an 

opportunity to present any necessary 

additional evidence and shall determine, by a 

preponderance of the evidence, if this section 

is applicable.

42 Pa.C.S.A. § 9712.1(a) and (c). We note that it is Subsection (c) that 

runs afoul of Alleyne because it declares that possession of a firearm is not 
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an element of the crime, because prior notice to the defendant is not 

required, and because possession is determined by the trial court rather 

than the jury and by a preponderance of the evidence rather than beyond a 

reasonable doubt.

The lower court found that appellant’s mandatory minimum sentence 

was sustainable pursuant to the rationale in Commonwealth v. Watley, 81 

A.3d 108 (Pa.Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 

2014). In Watley, the defendant had been convicted by a jury of the 

separate offenses of PWID and carrying a firearm without a license. The trial 

court imposed the mandatory minimum sentence under 42 Pa.C.S.A. 

§ 9712.1 because the appellant possessed a firearm at the time he 

committed the PWID offense. While the Watley court acknowledged that 

Alleyne had rendered Section 9712.1 unconstitutional, the court could allow 

the mandatory minimum sentence to stand because the concerns of Alleyne

had been addressed by the jury’s separate finding that the appellant 

possessed a firearm beyond a reasonable doubt and which offense arose 

from the same incident as the PWID offense. The court below then 

concluded that because separate PWID and firearm convictions were also 

reached by the jury instantly, the mandatory minimum sentence could 

likewise be sustained. We disagree.

Since the decision in Watley and before this appeal, our court 

subsequently decided Newman. Newman held that Alleyne did, in fact, 
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render Section 9712.1 unconstitutional and that sentences issued 

thereunder were improper and must be vacated. Newman also held that 

both Subsections 9712.1(a) and (c) were rendered void over an argument 

that Alleyne applied to only Subsection 9712.1(c), “the enforcement arm,” 

and not to Subsection 9712.1(a), “the predicate arm.” Newman, 99 A.3d 

at 101. Pursuant to that argument, the Commonwealth suggested merely 

remanding the case for review by a sentencing jury. Newman rejected that 

approach as tantamount to legislating a new enforcement procedure, and 

that it was more appropriately the province of the General Assembly to 

address. We find that adopting the analysis suggested by Watley likewise 

would result in a judicially crafted enforcement arm, allowing the mandatory 

minimum sentence to stand where there are separate convictions for PWID 

and possession of a firearm. Newman effectively “wiped the slate clean,” 

allowing no sentence to stand under Section 9712.1, because that section is 

unconstitutional in whole.

Accordingly, we will affirm the decision as to appellant’s suppression 

issue, but we must vacate appellant’s sentence and remand for 

resentencing.

Judgment of sentence as to suppression is affirmed; judgment of 

sentence as to sentencing is reversed. Sentence vacated. Case remanded 

for re-sentencing. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/2015