J-S32003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DARNELL LAMONT KELSO,

Appellant No. 168 WDA 2014

Appeal from the Judgment of Sentence Entered December 17, 2013

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0003349-2013

BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JUNE 26, 2015

Appellant, Darnell Lamont Kelso, appeals from the judgment of 

sentence entered following his convictions of possession of a prohibited 

firearm, firearms not to be carried without a license, possession of a 

controlled substance with intent to deliver, and simple possession of a 

controlled substance. We vacate the judgment of sentence and remand for 

resentencing.

The trial court summarized the history of this case as follows:

This matter arises out of [Appellant’s] arrest on January 3, 

2013 by Pennsylvania State Police after information was received 

that he was selling drugs from a motel room in Monroeville, Pa. 

During the investigation regarding the sale of the drugs, it was 

determined that [Appellant] has several warrants issued for his 

arrest. [Appellant] was then placed under arrest for the 

warrants and during the arrest it was discovered that [Appellant] 

was in possession of a gun and heroin. [Appellant] filed a 

motion to suppress and a hearing was held on October 29, 2013 
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at which the Commonwealth presented the testimony of Trooper 

Jeffrey Brautigam of the Pennsylvania State Police who testified 

that on January 2, 2013 information was received from a drug 

user that an individual described as a black male using the street 

name of “Fresh” was selling heroin from a room in a local motel. 

(T., p. 3) As a result of the information Trooper Brautigam 

contacted the hotel manager who provided him with 

[Appellant’s] name as the person renting the room. Trooper 

Brautigam then performed a record checks concerning 

[Appellant], including PennDOT and JNET records which included 

[Appellant’s] driver’s history, driver’s license photo and the FBI 

criminal history. (T., p. 4) Trooper Brautigam also determined 

that there were several active warrants issued by various 

magistrates against [Appellant]. (T., p. 14) Trooper Brautigam 

then positively identified [Appellant] as the person whose 

photographs he observed during his records investigation and 

arrested him based on the outstanding warrants. (T., p.p. 16-

17) Trooper Brautigam testified:

“[Appellant] was detained. I immediately asked 

[Appellant] if he had any weapons on him. 

[Appellant] told me that he had a gun stuffed down 

the front of his pants. So then he was then [sic] 

quickly escorted over to the room that we had been 

conducting surveillance, [Appellant] was handcuffed, 

searched, and he was found to have a loaded .45 

caliber pistol stuffed down the front of his pants and 

about eight bundles of heroin.” (T., p. 18)

On cross examination Trooper Brautigam acknowledged 

that he did not observe [Appellant] involved in any criminal 

conduct and that the arrest was based solely on the basis of the 

outstanding warrants. (T., p. 38) [Appellant] argued that 

Trooper Brautigam did not have the actual warrants in his 

possession and did not follow the appropriate procedure for 

executing a warrant and, therefore, any evidence obtained 

during the arrest should be suppressed. [Appellant’s] motion 

was denied as there is no requirement that the arresting police 

officer actually have in his possession a warrant that was 

previously issued[,] nor was he required to present the warrant 

to the arrestee. Commonwealth v. Gladfelter, 324 A.2d 518, 

519-[5]20 ([Pa. Super.] 1974). In addition, Trooper Brautigam 

was not required to follow the procedures set forth in 
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Pa.R.Crim.P. 431 when it was determined that [Appellant] was in 

possession of the gun and the heroin.

At trial the Commonwealth incorporated into the record the 

testimony from the suppression hearing and offered the 

following stipulated evidence:

“On the date in question, which was January 3, 

2013, location the Monroeville Days Inn. I think 

where we left off in the suppression motion was 

Trooper Brautigam was putting [Appellant] under 

arrest for an arrest warrant and found what he 

suspected to be controlled substances and a firearm 

in his pants pocket. More specifically Trooper 

Brautigam approached [Appellant], [Appellant] 

immediately told Trooper Brautigam [Appellant] had 

a gun stuffed down his pants, that was the front of 

his pants. Trooper Brautigam removed the firearm 

from [Appellant’s] pants. The firearm was loaded 

with one in the chamber with the hammer pulled 

back ready to be fired. The clip was also fully loaded 

with bullets that would match the firearm in 

question.

The firearm was submitted to the state police 

crime lab, which would be marked for identification 

purposes as Exhibit 1, in Greensburg and was 

determined to be operable following lubrication and 

cleaning of said firearm, would also satisfy the 

statutory requirements for barrel length, et cetera, 

under the Uniform Firearms Act.

Also found inside [Appellant’s] pants pocket 

was eight bundles of heroin, a small bag of 

marijuana and $570. The bundles were submitted to 

the state police crime lab in Greensburg, again be 

referenced as Commonwealth’s Exhibit 2. The lab 

identified the submission as 71 stamped bags 

determined to be 1.9 grams of heroin. The $570 

was in the following denominations: One onehundred dollar bill, one fifty-dollar bill, 21 twentydollar bills. Two cell phones were recovered from 

[Appellant], no use — should be noted no use 

paraphernalia was recovered from [Appellant]. 

[Appellant] told Trooper Brautigam he was basically 
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homeless and did not have a permanent address; 

also indicated unemployed.

[Appellant] did not have a license to carry a 

firearm on January 3, 2013. That is established in 

Exhibit 3. [Appellant] was previously convicted of a

possession with intent to deliver in federal court in 

2008. That is referenced Exhibit 4.

That ends the factual stipulations by the 

parties. Also one additional thing is that the 

Commonwealth would provide expert testimony, City 

of Pittsburgh Narcotic Detective Ed Fallert was 

consulted about the above mentioned admitted 

facts; he is willing to give an opinion that the drugs 

were possessed, namely the 71 stamped bags of 

heroin were possessed with the intent to deliver 

them. Thus defense counsel would stipulate that 

such testimony would be admitted before this court 

on the facts of this case.” (T., pp. 9-11)

After argument and review of all of the evidence, including 

the testimony from the suppression hearing, [Appellant] was 

found guilty and sentenced on December 17, 2013.

Trial Court Opinion, 1/20/15, at 2-4.

Prior to trial, the Commonwealth filed a “Notice of Additional Facts 

Affecting Mandatory Sentencing” indicating that Appellant’s charge for 

possession with intent to deliver was subject to two mandatory minimum 

sentences.1 (Docket Entry 8). On December 17, 2013, at the conclusion of 

trial, the trial court sentenced Appellant in open court to serve two 

mandatory minimum terms of incarceration for the conviction of possession 

____________________________________________

1

 The Commonwealth noted that mandatory minimum sentences were 

applicable under 18 Pa.C.S. § 7508(a)(7) (relating to weight of the heroin) 

and 42 Pa.C.S. § 9712.1 (relating to drug offenses committed with 

firearms).
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with intent to deliver. Specifically, the court sentenced Appellant to a 

mandatory minimum term of incarceration of three to six years, and a 

concurrent mandatory minimum term of incarceration of five to ten years, 

ostensibly both for the conviction of possession with intent to deliver.2 In 

addition, the trial court sentenced Appellant to serve a consecutive term of 

probation of five years.3 This timely appeal followed. Both Appellant and 

the trial court complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

I. DID THE LOWER COURT ERR IN APPLYING THE MANDATORY 

MINIMUM FIVE-YEAR SENTENCE FOR DRUG OFFENSES 

COMMITTED WITH FIREARMS PURSUANT TO 42 Pa.C.S. § 

9712.1 INSOFAR AS THE SENTENCING STATUTE IS VIOLATIVE 

OF THE SIXTH AMENDMENT AND ARTICLE 1 §§ 6 AND 9 

BECAUSE IT AUTHORIZES THE IMPOSITION OF A MANDATORY 

MINIMUM SENTENCE UPON A FINDING, BY A PREPONDERANCE 

OF THE EVIDENCE BY THE SENTENCING JUDGE AT 

SENTENCING, THAT [APPELLANT] POSSESSED A FIREARM 

DURING THE COMMISSION OF A VIOLATION OF SECTION 

13(A)(30) OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE 

AND COSMETIC ACT?

____________________________________________

2

 In his written opinion, the trial judge observed that there was a clerical 

error in the sentencing order, which indicated that the five to ten year 

mandatory minimum sentence was imposed on the conviction of possession 

of a prohibited firearm. Trial Court Opinion, 1/20/15, at 6-8. However, the 

trial court clarified that the mandatory five to ten year term of incarceration 

was actually imposed on the conviction of possession with intent to deliver. 

Id.

3

 We note that, at the time of sentencing, the trial court was not specific as 

to which conviction the term of probation was to be applied. However, the 

sentencing order reflects that the probationary sentence was for Appellant’s 

conviction of firearms not to be carried without a license.
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Appellant’s Brief at 5.

Appellant argues that the trial court imposed an illegal mandatory 

minimum sentence for his conviction of possession with intent to deliver, 

specifically for drug offenses committed with firearms. In support of his 

argument that his mandatory minimum sentence is illegal, Appellant cites 

the United State Supreme Court’s decision in Alleyne v. United States, 

___ U.S. ___, 133 S.Ct. 2151 (2013), as well as this Court’s recent decisions 

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

(declaring 42 Pa.C.S. § 9712.1 unconstitutional, as that statute permits the 

trial court, as opposed to the jury, to increase a defendant’s minimum 

sentence based upon a preponderance of the evidence that the defendant 

was dealing drugs and possessed a firearm, or that a firearm was in close 

proximity to the drugs), Commonwealth v. Valentine, 101 A.3d 801 (Pa. 

Super. 2014) (declaring mandatory minimum sentences set forth in 42 

Pa.C.S. §§ 9712 and 9713 were unconstitutional), Commonwealth v. 

Cardwell, 105 A.3d 748 (Pa. Super. 2014) (holding trial court erred by 

imposing mandatory minimum sentence under Section 7508, even where 

parties stipulated to weight of drugs; applying Newman and its progeny, 

and concluding that Section 7508(b) is not severable from remainder of

statute; and remanding for resentencing without imposition of mandatory 

minimum sentence), and Commonwealth v. Bizzel, 107 A.3d 102 (Pa. 
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Super. 2014) (vacating mandatory minimum sentence imposed pursuant to 

18 Pa.C.S. § 6317(b) following non-jury trial as a violation of Alleyne).

The trial court has agreed with Appellant and stated the following:

Consequently, while the evidence was sufficient to support 

[Appellant’s] convictions and despite the fact that [Appellant] 

stipulated to the facts that supported the imposition of 

mandatory minimum sentences, the statutes on which the 

sentences were based are unconstitutional and resentencing will 

be required.

Trial Court Opinion, 1/20/15, at 10.

Likewise, the Commonwealth has conceded that, pursuant to the 

current case law, it is constrained to agree that Appellant must be 

resentenced in this matter.4 Commonwealth’s Brief at 11. Accordingly, we 

vacate the judgment of sentence and remand for resentencing.

____________________________________________

4

 We observe that the Commonwealth has included in its appellate brief a 

section with the following heading:

II. COMMONWEALTH V. NEWMAN AND ITS PROGENY WERE 

WRONGLY DECIDED.

Commonwealth’s Brief at 12. The Commonwealth begins its discussion in 

this section by stating that “[w]hile your Honorable Court is bound by the 

decision of the court en banc in Newman, supra, and by its progeny, the 

Commonwealth submits that these decisions are erroneous and should be 

reversed by our Supreme Court.” Id.

Indeed, we must follow the decisional law established by our own 

Court. Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 

2009). Furthermore, we note that recently in Commonwealth v. Hopkins, 

98 MAP 2013, ___ A.3d ___ (Pa. filed June 15, 2015), our Supreme Court, 

in a direct appeal filed by the Commonwealth from an order of the Court of 

Common Pleas, relied upon Alleyne and struck down as unconstitutional the 

(Footnote Continued Next Page)
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Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/2015

(Footnote Continued) _______________________

mandatory minimum sentencing scheme regarding drug-free school zones 

set forth in 18 Pa.C.S. § 6317. In pertinent part, the Court in Hopkins

refused to sever the violative provisions from the statute, which was the 

same determination reached by this Court in Newman.