J-S70043-14

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

v.

MICHAEL WILLIAMS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1422 EDA 2014

Appeal from the Judgment of Sentence Entered September 6, 2013,

in the Court of Common Pleas of Northampton County 

Criminal Division at No(s): CP-48-CR-0001102-2013

BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 16, 2014

Michael Williams (Appellant) appeals from the judgment of sentence 

entered September 6, 2013, following his convictions for operating a 

methamphetamine laboratory; possession of red phosphorus, etc., with 

intent to manufacture a controlled substance; use of, or possession with 

intent to use, drug paraphernalia; and manufacture, delivery, or possession 

with intent to manufacture or deliver a controlled substance.1 Upon review, 

we affirm Appellant’s convictions, vacate Appellant’s judgment of sentence, 

and remand for resentencing.

On January 17, 2013, the Easton Police Department charged Appellant 

with the above crimes. A jury trial was held from July 8 through July 10, 

 

1 35 P.S. §§ 780-113.4(a)(1), 780-113.1(a)(3), 780-113(a)(32), 780-

113(a)(30), respectively.
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2013. During the trial, the Commonwealth presented the testimony of 

Inspector Salvatore Crisafulli of the Easton Police Department and Rebecca 

Patrick, a lab technician from the State Police Clandestine Drug Laboratory 

Response Team. The Commonwealth also submitted numerous exhibits into 

evidence, including items found in the garbage at Appellant’s residence, 

photographs of the garbage, lab reports, a DVD containing a recording of 

Appellant’s police interview, a printout from Meth Check (an online database 

containing information tracking the purchase of ephedrine and 

pseudoephedrine), and letters written by Appellant to Inspector Crisafulli. 

Appellant did not testify at trial.

The trial court summarized the testimony and evidence at trial as 

follows:

Inspector Crisafulli testified that on January 16, 2013, he 

participated in an investigation related to the manufacture of 

controlled substances from a residence identified as 1415 Pine 

Street in Easton, Pennsylvania. At approximately 4:00 a.m. that 

morning, he participated in a “trash pull,” in which the police 

took two bags of trash from three curbside trashcans in front of 

1415 Pine Street. The officers brought these bags of trash back 

to the station for examination. Inspector Crisafulli testified that 

they initially discovered long strips of paper and broken 

batteries. There was also a strong, intense chemical odor 

coming from the bags, along with a white gas.

The officers contacted the Pennsylvania State Clandestine 

Response Team to aid in processing the items and to limit the 

hazardous exposure of the officers. The items recovered from 

the trash pull included (1) broken batteries, including lithium 

strips and battery hulls; (2) a brownish liquid in a Pepsi bottle 

marked as “waste[;”] (3) a melted bottle with a white solid 

gassing substance; (4) starting fluid; (5) an ammonia test kit 

and PH test kit; (6) empty blister packs of pseudoephedrine-
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based medicine; (7) ice packs, which contain ammonia nitrate in 

small round balls; and (8) a broken meth pipe.

Inspector Crisafulli further testified that the Easton Police 

Department executed a search warrant on [Appellant’s] secondfloor bedroom in the early afternoon of January 16, 2013. The 

items seized, memorialized in an inventory receipt and made 

part of the record as Commonwealth Exhibit 39, included (1) 

packs of cold compresses, which were cut open; (2) a can of 

Prestone Starting Fluid, unopened; (3) a box of baking soda; (4) 

two containers of salt; (5) a small glass dish and aluminum foil; 

(6) an ammonia nitrate test kit; (7) isopropyl alcohol; (8) a fullmouth facemask respirator; and (9) a box containing meth 

pipes. Inspector Crisafulli further testified that some of the 

items recovered under the search warrant needed to be 

destroyed due to their hazardous nature.

Through Inspector Crisafulli, the Commonwealth 

introduced into evidence a DVD containing an audio and visual 

recording of a police interview with [Appellant] at the Easton 

Police Station after the police officers had executed a search 

warrant. Further, the Commonwealth introduced [Appellant’s] 

history of purchasing ephedrine/pseudoephedrine products 

through a printout of a tracking database, Meth Check. 

Inspector Crisafulli testified that the Meth Check database 

established that [Appellant’s] last purchase of pseudoephedrine 

occurred on January 6, 2013, after which [Appellant] was 

blocked from purchasing additional pseudoephedrine for thirty 

days. Inspector Crisafulli stated that an individual’s purchase of 

pseudoephedrine is limited by law to 9 grams every thirty days. 

The Meth Check data base [sic] indicated that [Appellant] had 

also made two separate purchases of pseudoephedrine on 

December 26, 2012, one at Walmart and the other at Giant. 

Finally, the Commonwealth introduced four letters written by 

[Appellant] to Inspector Crisafulli, in which [Appellant] discussed 

his extensive knowledge of cooking meth, volunteered to aid the 

police in investigating local methamphetamine labs, and 

critiqued the evidence obtained by the police in the instant case.

[Ms. Patrick] testified as an expert witness at trial in the 

field of drug analysis and the hazmat clean-up of meth labs. In 

her testimony, the Commonwealth introduced into evidence two 

laboratory reports. In her first lab report, Ms. Patrick focused on 

evidence obtained through the “trash pull” and gave an overview 
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of the one-pot method of meth cooking that is commonly used in 

Pennsylvania. Ms. Patrick concluded that the clandestine 

manufacturing of methamphetamine was attempted, but 

unsuccessful, citing the ignited plastic bottle, which she referred 

to as the “cooking vessel,” as evidence that something went 

wrong in the manufacturing process. Ms. Patrick testified that 

no methamphetamine was found because it appeared that the 

cooking process had failed.

Ms. Patrick also testified about the two blister packs of cold 

medicine. Ms. Pa[t]rick testified that each blister pack holds 3.6 

grams of pseudoephedrine and can be used to generate a one[-] 

to[-]one ratio of methamphetamine – 3.6 grams of 

pseudoephedrine can produce 3.6 grams of methamphetamine.

The second lab report focused on the items seized from 

[Appellant’s] bedroom when the police officers executed the 

search warrant. Ms. Patrick went through the inventory list and 

explained how some of the items seized could be used to 

manufacture methamphetamine. Ms. Patrick concluded that 

many of the items found were consistent with the one-pot 

method commonly used in Pennsylvania.

During her testimony, Ms. Patrick was presented with a 

Pepsi bottle, which was filled with what appeared to be a 

brownish liquid. The bottle was marked “waste,” apparently 

labeled prior to its seizure by law enforcement. Ms. Patrick 

testified that she removed and weighed just the liquid. Then she 

tested the liquid for the presence of methamphetamine and 

identified the presence of methamphetamine crystals in the 

liquid.

On direct and cross-examination, Ms. Patrick 

acknowledged that the liquid solution was not entirely 

methamphetamine. It also contained the by-products from the 

manufacture of methamphetamine. Ms. Patrick testified that 

one knowledgeable about the manufacturing process can store 

the waste from the manufacturing process to later distill the 

solution to retrieve the methamphetamine that is dissolved 

within. Further, Ms. Patrick acknowledged that it is possible that 

the solution may also have contained urine, as knowledgeable 

users can recycle urine to reclaim any methamphetamine that 

was not processed by the body. However, Ms. Patrick did not 

test the solution for the presence of urine. Further, Ms. Patrick 
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did not reduce the liquid solution to measure the weight of only 

the methamphetamine. The lab report indicated that the entire 

solution weighed 1,340 grams.

The Commonwealth also played the video statement of 

[Appellant] for the jury. During his statement, [Appellant] 

bragged about his knowledge of the local methamphetamine 

market and his experience and talent related to cooking meth. 

[Appellant] (and here [the trial court] paraphrase[d]) basically 

argued to the police that the meth lab located in the trash bags 

was not his work, because the lab was amateurish and beneath 

his abilities.

Trial Court Order, 4/15/2014, 2-5 (citations and footnote omitted).

On July 10, 2013, the jury found Appellant guilty of all charges. In so 

doing, the jury also concluded that Appellant had manufactured between 5 

and 10 grams of methamphetamine.

On September 6, 2013, the trial court sentenced Appellant to an 

aggregate 6 1⁄4 years to 21 years’ incarceration. For the charge of operating 

a methamphetamine laboratory, Appellant received a sentence of 35 months 

to 120 months of incarceration. For the charge of manufacture, delivery, or 

possession with intent to manufacture or deliver a controlled substance, 

Appellant received a sentence of 36 months to 120 months of incarceration. 

For the charge of use of, or possession with intent to use, drug 

paraphernalia, Appellant received a sentence of 4 months to 12 months of 

incarceration. For the charge of possession of red phosphorus, etc., with 

intent to manufacture a controlled substance, Appellant was sentenced to 24 

months to 48 months of incarceration. All of the sentences ran consecutive 

to each other, with the exception of Appellant’s sentence for possession of 
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red phosphorus, etc., with intent to manufacture a controlled substance, 

which was to run concurrent with the other sentences.

On September 6, 2013, Appellant filed post-sentence motions pro se. 

On September 9, 2013, defense counsel was discharged, as Appellant raised 

complaints of ineffectiveness of counsel, and conflict counsel was appointed 

to represent Appellant regarding post-sentence matters.

On September 16, 2013, Appellant filed a pro se notice of appeal to 

this Court. Consequently, the trial court found that Appellant’s notice 

divested the trial court of jurisdiction and entered an order denying said 

motions pursuant to Pa.R.A.P. 1701(a) on September 24, 2013. On or about 

December 6, 2013, this Court remanded the matter for purposes of filing 

counseled post-sentence motions nunc pro tunc. On March 13, 2014, 

Appellant filed his post-sentence motions, which the trial court denied on 

April 15, 2014. Appellant then timely appealed to this Court.

On appeal, Appellant presents the following issues for our 

consideration:

1. Whether the evidence was insufficient to sustain the 

verdict and the verdict was against the weight of the 

evidence?

2. (a) Whether the trial court’s consecutive sentencing for 

one event in one criminal departure in a [(]although 

violating several criminal statutes[)] [sic] 6 1⁄4 years – 21 

years is excessive and does not reflect the conduct of ... 

Appellant?

(b) Whether the trial court failed to comply with the 

requirements of ... 18 Pa.C.S.[] §[]7508([b]) which 
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requires that all of the provisions of the aforesaid statute 

should not be an element of the crime. Therefore, the 

sentence is unlawful [pursuant] to [Commonwealth v. 

Watley, 81 A.3d 108 (Pa. Super. 2013)]?

3. Whether the court’s instruction and jury verdict slip with 

regard to weight of methamphetamine is erroneous?

Appellant’s Brief at 3.

In his first issue, Appellant purports to challenge both the weight and 

sufficiency of the evidence supporting his convictions. Nevertheless, his 

actual argument appears to be limited to a sufficiency challenge. 

Accordingly, we conclude that Appellant has waived his weight claim for his 

failure to develop it,2and we apply the following standard of review:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying the above test, we 

may not weigh the evidence and substitute our judgment for the 

fact-finder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant’s guilt

may be resolved by the fact-finder unless the evidence is so 

weak and inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances. The 

 

2 This Court has held that an appellant cannot present bald assertions in 

support of relief.

It is not for this Court to develop an appellant’s arguments. 

Rather, it is the appellant’s obligation to present developed 

arguments and, in so doing, apply the relevant law to the facts 

of the case, persuade us there were errors, and convince us 

relief is due because of those errors. If an appellant fails to do 

so, we may find the argument waived.

Commonwealth v. Rush, 959 A.2d 945, 950-51 (Pa. Super. 2008).
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Commonwealth may sustain its burden of proving every element 

of the crime beyond a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying the above test, 

the entire record must be evaluated and all evidence actually 

received must be considered. Finally, the trier of fact while 

passing upon the credibility of witnesses and the weight of the 

evidence produced, is free to believe all, part or none of the 

evidence.

Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en

banc) (quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa. 

Super. 2008)).

Appellant purports to challenge the sufficiency of the evidence 

supporting all four of his convictions; however, in support of his claim, 

Appellant presents a general contention that the Commonwealth failed to 

prove beyond a reasonable doubt that Appellant possessed the ingredients 

that are required to manufacture methamphetamine. To the extent that 

Appellant argues that the Commonwealth is required to prove beyond a 

reasonable doubt that Appellant possessed every ingredient necessary to 

manufacture methamphetamine, we reject such an argument. We are 

unaware of, and Appellant fails to cite, any legal authority imposing such a 

requirement. Only two of Appellant’s convictions implicate the specific 

ingredients needed to manufacture methamphetamine, and they are written 

in the disjunctive. Specifically, under The Controlled Substance, Drug, 

Device and Cosmetic Act, 

A person commits the offense of operating a methamphetamine 

laboratory if the person knowingly causes a chemical reaction 

involving ephedrine, pseudoephedrine or phenylpropanolamine, 
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or any other precursor or reagent substance under section 13.1, 

[35 P.S. § 780-113.1,] for the purpose of manufacturing 

methamphetamine or preparing a precursor or reagent 

substance for the manufacture of methamphetamine.

35 P.S. § 780-113.4(a)(1) (footnote omitted) (emphasis added).

Moreover, 35 P.S. § 780-113.1(a)(3) prohibits the act of

[p]ossessing red phosphorous, hypophosphoric acid, ammonium 

sulfate, phosphorous, iodine, hydriodic acid, ephedrine, 

pseudoephedrine, lithium, sodium, potassium, sassafras oil, 

safrole oil or other oil containing safrole or equivalent, whether 

in powder or liquid form, phenylpropanolamine, phenyl acetone, 

methylamine, ammonium sulfate, ammonium nitrate or phenyl 

acetic acid with intent to manufacture a controlled substance.

Id. (emphasis added).3 Thus, Appellant’s argument is without merit.

Moreover, to the extent that Appellant argues that the Commonwealth 

failed to prove beyond a reasonable doubt that Appellant possessed any of 

the ingredients needed to manufacture methamphetamine, this argument 

 

3 Appellant was also convicted of violating 35 P.S. § 780-113(a)(30), which 

prohibits “the manufacture, delivery, or possession with intent to 

manufacture or deliver, a controlled substance by a person not registered 

under this act, or a practitioner not registered or licensed by the appropriate 

State board, or knowingly creating, delivering or possessing with intent to 

deliver, a counterfeit controlled substance.” Id. Finally, Appellant was 

convicted of violating 35 P.S. § 780-113(a)(32), which prohibits

[t]he use of, or possession with intent to use, drug paraphernalia 

for the purpose of planting, propagating, cultivating, growing, 

harvesting, manufacturing, compounding, converting, producing, 

processing, preparing, testing, analyzing, packing, repacking, 

storing, containing, concealing, injecting, ingesting, inhaling or 

otherwise introducing into the human body a controlled 

substance in violation of this act.

Id.
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also fails. The items seized from the trash pull and Appellant’s bedroom 

included, inter alia, broken batteries, including lithium strips and battery 

hulls; starting fluid; two empty blister packs of pseudoephedrine-based 

medicine; ice packs containing ammonium nitrate pellets; baking soda; and 

salt containers. N.T., 7/9/2013, at 18-26, 35-43. Further, the information 

from the Meth Check database demonstrated Appellant’s history of repeated 

purchases of pseudoephedrine or pseudoephedrine-based medicine between 

July 2012 and January 2013. Id. at 58-61. Additionally, Inspector Crisafulli 

and Ms. Patrick testified as to how several of the seized items, particularly 

the starting fluid, lithium strips, ice packs containing ammonium nitrate, 

baking soda, pseudoephedrine, and salt, are used in the manufacture of 

methamphetamine. Id. at 18-21, 23-26, 140-46. From this direct and 

circumstantial evidence, the jury could reasonably conclude that Appellant 

possessed the ingredients necessary to manufacture methamphetamine, 

particularly the pseudoephedrine listed in 35 P.S. §§ 780-113.1(a)(3) and 

780-113.4(a)(1). 

Appellant also argues that there is insufficient evidence to prove that 

the amount of methamphetamine Appellant manufactured was between 5 

and 10 grams. We disagree. The police recovered two blister packs of 

pseudoephedrine-based medicine from the trash pull. N.T., 7/9/2013, at 23. 

According to Ms. Patrick, each blister pack holds 3.6 grams of 

pseudoephedrine, which can be used to generate a one-to-one ratio of 
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methamphetamine. Id. at 137. Using simple math, the jury could 

reasonably conclude that using the two blister packs of pseudoephedrine, 

Appellant manufactured 7.2 grams of methamphetamine, which is within the 

5-to-10-gram range found by the jury. Thus, Appellant’s sufficiency-of-theevidence claim is without merit.

Appellant next challenges both the discretionary aspects of his 

sentence and the legality of his sentence. With regard to his discretionary 

aspects of sentence claim, Appellant has failed to include in his brief a 

statement pursuant to Pa.R.A.P. 2119(f), and the Commonwealth has 

objected to this omission. Commonwealth’s Brief at 15. Appellant, 

therefore, has waived this issue. See Commonwealth v. Roser, 914 A.2d 

447, 457 (Pa. Super. 2006) (“A failure to include the Rule 2119(f) statement 

does not automatically waive an appellant’s [discretionary aspects of 

sentencing] argument; however, we are precluded from reaching the merits 

of the claim when the Commonwealth lodges an objection to the omission of 

the statement.”) (quoting Commonwealth v. Love, 896 A.2d 1276, 1287 

(Pa. Super. 2006)).

4

 

4

In the context of his discretionary aspects of sentencing claim, Appellant 

argues that his aggregate sentence is in contravention of 42 Pa.C.S. 

§ 9756(b)(1). Because this argument actually goes to the legality of his 

sentence, we address it here. See Commonwealth v. Hurst, 532 A.2d 

865, 869 n.2 (Pa. Super. 1987) (providing that “illegality of sentence is not 

waivable and may be raised by this Court sua sponte”).

Under 42 Pa. C.S. § 9756(b)(1), “[t]he court shall impose a minimum 

sentence of confinement which shall not exceed one-half of the maximum 
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As to Appellant’s challenge to the legality of his sentence, he appears 

to argue that the trial court unlawfully imposed a mandatory minimum 

sentence pursuant to 18 Pa.C.S. § 7508, which provides, in relevant part:

(4) 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 is 

methamphetamine or phencyclidine or is a salt, isomer or salt of 

an isomer of methamphetamine or phencyclidine or is a mixture 

containing methamphetamine or phencyclidine, containing a salt 

of methamphetamine or phencyclidine, containing an isomer of 

methamphetamine or phencyclidine, containing a salt of an 

isomer of methamphetamine or phencyclidine shall, upon 

conviction, be sentenced to a mandatory minimum term of 

imprisonment and a fine as set forth in this subsection:

(i) when the aggregate weight of the compound or mixture 

containing the substance involved is at least five grams 

and less than ten 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 been 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 

 

sentence imposed.” Appellant was sentenced to an aggregate 6 1⁄4 to 21 

years of incarceration. As 6 1⁄4 years is less than one-half of 21 years (or 

10 1⁄2 years), Appellant’s aggregate sentence does not violate 42 Pa.C.S. 

§ 9756(b)(1). Thus, Appellant’s claim in this regard is without merit.
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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. § 7508(a)(4)(i), (b).

In support of his argument, Appellant cites Commonwealth v. 

Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc), wherein this Court noted 

the effect of Alleyne v. United States, 133 S.Ct. 2151 (2013), on 

mandatory minimum sentencing statutes in Pennsylvania:

According to the Alleyne Court, a fact that increases the 

sentencing floor is an element of the crime. Thus, it ruled that 

facts that mandatorily increase the range of penalties for a 

defendant must be submitted to a fact-finder and proven beyond 

a reasonable doubt. The Alleyne decision, therefore, renders 

those Pennsylvania mandatory minimum sentencing statutes 

that do not pertain to prior convictions constitutionally infirm 

insofar as they permit a judge to automatically increase a 

defendant’s sentence based on a preponderance of the evidence 

standard.

Watley, 81 A.3d at 117 (footnote omitted).5 

Notably, notwithstanding its observations regarding the 

constitutionality of Pennsylvania’s mandatory minimum sentencing statutes 

outlined above, the Watley Court upheld the mandatory minimum sentence 

in that case, which the trial court imposed pursuant to 42 Pa.C.S. § 9712.1. 

Watley, 81 A.3d at 121. The Court did so on the ground that “the factual 

predicates for determining the mandatory minimum [had been] proven to a 

jury beyond a reasonable doubt.” Id.

 

5 Among those mandatory minimum sentencing statutes listed in Watley is 

18 Pa.C.S. § 7508(b). See id. at 117 n.4.
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Here, the factual predicate for imposing the mandatory minimum 

pursuant to 18 Pa.C.S. 7508(a)(4)(i) was likewise determined by a jury 

under the beyond-a-reasonable-doubt standard.6 Nevertheless, we hold that 

Appellant’s sentence is illegal. In so doing, we find this Court’s recent 

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

(en banc) and Commonwealth v. Valentine, __ A.3d __, 2014 WL 

4942256 (Pa. Super. filed October 3, 2014) instructive.

In Valentine, this Court aptly discussed the Newman decision as 

follows:

In Newman, we reviewed the constitutionality of 42 Pa.C.S.A. 

§ 9712.1, which enhances the minimum sentence where a 

firearm is found on a drug dealer, an accomplice, or in the 

vicinity of the contraband. ...

[***]

We explained in Newman that under Alleyne, the factual 

predicates for imposition of the § 9712.1 mandatory minimum 

sentence (i.e., that the firearm was found on a drug dealer, an 

accomplice or in the vicinity of the contraband) “must be pleaded 

in the indictment, and must be found by the jury beyond a 

reasonable doubt before the defendant may be subjected to an 

 

6 Specifically, the trial court instructed the jury that if it found Appellant 

guilty of manufacture, delivery, or possession with intent to manufacture or 

deliver a controlled substance, it also must make a determination as to the 

weight of the methamphetamine that Appellant manufactured for sentencing 

purposes. N.T., 7/10/2013, at 46-47. The trial court also instructed the 

jury that it “must agree unanimously that each and every element for each 

charge has been proven with proof beyond a reasonable doubt before [it 

could] find the defendant guilty,” and provided the jury with a definition of 

that standard. Id. at 25-26, 53-54. Moreover, the verdict slip included an 

interrogatory as to the weight of methamphetamine Appellant manufactured, 

which the jury answered by marking “5 -<10 grams.” See Verdict Slip, 

7/10/2013, at 1.
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increase in the minimum sentence.” Concluding that the factual 

predicates for imposition of the mandatory minimum sentence 

had not been presented to a jury, we vacated the judgment of 

sentence.

Notably in Newman, we declined the Commonwealth’s proposed 

remedy that we remand for a sentencing jury to determine 

beyond a reasonable doubt whether the Commonwealth had 

proven the factual predicates for § 9712.1. We explained:

[T]he Commonwealth’s assertion assumes that Subsection 

(a) of Section 9712.1, which sets the predicate for the 

mandatory minimum sentence, survives constitutional 

muster, and that only Subsection (c), which directs that 

the trial court shall determine the predicate of Subsection 

(a) by a preponderance of the evidence, fails. In other 

words, the Commonwealth is contending that we may 

sever and retain those parts of Section 9712.1 that are not 

constitutionally infirm.... We respectfully disagree.

[***]

We find that Subsections (a) and (c) of Section 9712.1 are 

essentially and inseparably connected. Following Alleyne,

Subsection (a) must be regarded as the elements of the 

aggravated crime of possessing a firearm while trafficking 

drugs. If Subsection (a) is the predicate arm of Section 

9712.1, 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.

{ "pageset": "S29

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 
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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.

Valentine, 2014 WL 4942256, at *6-*8 (citations omitted) (quoting 

Newman, 99 A.3d at 98, 101-02). Thus, in Newman, this Court vacated 

and remanded for resentencing without consideration of the mandatory 

minimum sentences provided in Section 9712.1. Newman, 99 A.3d at 103.

In Valentine, this Court addressed whether the trial court’s imposition 

of mandatory minimum sentences pursuant to 42 Pa.C.S. § 9712 and 42 

Pa.C.S. § 9713 was unlawful. Importantly,

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. 

Valentine, 2014 WL 4942256, at *8. Nevertheless, we observed in 

Valentine that 

[i]n 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 
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Subsections (a) of 9712 and 9713 survived constitutional 

muster. By asking the jury to determine whether the factual 

prerequisites set forth 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.

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.” 

Therefore, the trial court lacked the authority to allow the jury to 

determine the factual predicates of §§ 9712 and 

9713.

Id. (citations omitted) (quoting Newman, 99 A.3d at 101-02). Therefore, 

although we recognized that “this Court has upheld sentences imposed 

under various mandatory minimum sentencing provisions rendered 

unconstitutional by the Alleyne decision,” such as in Watley, we vacated 

and remanded for resentencing without consideration of the mandatory 

minimum sentences in sections 9712 and 9713. Id. at 9 & n.4.

Based on the foregoing, we likewise hold that, here, the trial court 

impermissibly attempted to “cure” the constitutional defects of section 7508 

by submitting the question of weight of methamphetamine to the jury to be 

determined using the beyond-a-reasonable-doubt standard.7 As such, we 

 

7

In Appellant’s final issue, he argues that the trial court’s instruction and the 

jury verdict slip are erroneous “with regard to [the] weight of 

methamphetamine.” Appellant’s Brief at 15. For the reasons already stated 

herein, we agree that the jury instructions and verdict slip, as they pertain 

to the jury’s determination of weight of methamphetamine manufactured 

beyond a reasonable doubt, are improper.
J-S70043-14

- 18 -

vacate Appellant’s sentence and remand for resentencing without 

consideration of the mandatory minimum sentences provided in 

section 7508.

Convictions affirmed. Judgment of sentence vacated. Case remanded. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2014