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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUAN J. DAVILLA

Appellant No. 2917 EDA 2013

Appeal from the Judgment of Sentence September 20, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005313-2012

BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.: FILED APRIL 14, 2015

Appellant, Juan J. Davilla, appeals from the September 20, 2013 

aggregate judgment of sentence of five to ten years’ incarceration plus a 

consecutive five years’ probation, imposed following his conviction by a jury 

of possession with intent to deliver a controlled substance (PWID), to wit 

heroin and cocaine, possession of a controlled substance, conspiracy, and 

firearms not to be carried without a license.1 Appellant challenges the 

legality of imposing a mandatory sentence in this case. After careful review, 

we vacate Appellant’s sentence and remand for resentencing.

A summary of the pertinent factual and procedural history of the case 

follows. During a police surveillance operation near the corner of Hope 

____________________________________________

1 35 Pa.C.S.A. §§ 780-113(a)(30), 780-113(a)(16), 18 Pa.C.S.A. §§ 903, 

and 6106(a)(1), respectively. An additional charge of carrying a firearm in 

public in Philadelphia, 18 Pa.C.S.A. § 6108, was nolle prossed.
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Street and Sullivan Street in the city of Philadelphia, Pennsylvania, Appellant 

was present with co-defendant, Eddie Mojica. Appellant and Mojica were 

observed conducting apparent drug transactions with three individuals, who, 

when stopped by back-up officers immediately after they left the scene, 

were found in possession of packets containing heroin and/or packets 

containing cocaine. Appellant was then observed entering a Ford Ranger 

parked nearby, where he remained for about two minutes. 

Appellant and Mojica were arrested and packets of cocaine, packets of 

heroin, and small amounts of cash were found on their persons. A 

subsequent warranted search of the Ford Ranger yielded more quantities of 

cocaine and heroin, two handguns, and $525.00 in cash, all located in the 

passenger airbag compartment. Appellant was charged with the 

aforementioned crimes, and the case proceeded to a jury trial held on July 

19-24, 2013. 

During trial, the parties debated before the trial court the import of the 

United States Supreme Court’s decision in Alleyne v. United States, 133 

S. Ct. 2151 (2013), handed down a month earlier on June 17, 2013. In the 

event of conviction, the Commonwealth sought imposition of a mandatory 

sentence under 42 Pa.C.S.A. § 9712.1, based on the close proximity of the 

drugs to a firearm, and 18 Pa.C.S.A. § 6317, based on the offenses 

occurring within 1,000 feet of a school and 250 feet of a recreation area.2 

____________________________________________

2 Those provisions provide in pertinent part as follows.

(Footnote Continued Next Page)
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(Footnote Continued) _______________________

§ 9712.1. Sentences for certain drug offenses 

committed with firearms

(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), [FN1] 

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. 

§ 6317. Drug-free school zones

(a) General rule.--A person 18 years of age or 

older who is convicted in any court of this 

Commonwealth of a violation of section 13(a)(14) or 

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

(Footnote Continued Next Page)
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Appellant argued Alleyne rendered these statutes unconstitutional in their 

(Footnote Continued) _______________________

known as The Controlled Substance, Drug, Device 

and Cosmetic Act, shall, if the delivery or possession 

with intent to deliver of the controlled substance 

occurred within 1,000 feet of the real property on 

which is located a public, private or parochial school 

or a college or university or within 250 feet of the 

real property on which is located a recreation center 

or playground or on a school bus, be sentenced to a 

minimum sentence of at least two years of total 

confinement, notwithstanding any other provision of 

this title, The Controlled Substance, Drug, Device 

and Cosmetic Act or other statute to the contrary. 

The maximum term of imprisonment shall be four 

years for any offense:

(1) subject to this section; and 

(2) for which The Controlled Substance, Drug, Device 

and Cosmetic Act provides for a maximum term of 

imprisonment of less than four years. 

...

(b) Proof at sentencing.--The 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. § 6317.
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entirety, precluding imposition of the mandatory sentences. The 

Commonwealth argued that the unconstitutional aspects of the statute were 

severable and compliance with Alleyne would be possible if the pertinent 

triggering facts were submitted to the jury to find beyond a reasonable 

doubt. 

The trial court agreed with the Commonwealth and devised a special 

verdict slip. In it, the jury was asked to indicate whether the drugs located 

in the red truck were in close proximity to a firearm; whether Appellant was 

in physical possession or control of a firearm; whether the PWID charge 

relative to the drugs located in the red truck occurred within 1,000 feet of a 

school; and whether the PWID charge relative to the drugs located in the red 

truck occurred within 250 feet of a recreation center.3 The trial court 

____________________________________________

3 The parties agree that pertinent to the issues in this appeal the questions 

were presented to the jury in a special jury interrogatory as follows.

3) If you answered yes to Question #2 [whether 

Appellant was guilty of PWID], does that finding of 

guilt include the narcotics (heroin and cocaine) 

recovered from the red Ford truck? If yes, answer 

Questions (a), (b), (c), (d), and (e). If no, do not 

consider (a), (b), (c), (d), and (e).

(a) Were the narcotics (heroin and cocaine), 

for which you have found the defendant 

guilty, in proximity (close or near) to a 

firearm?

(b) Was the defendant, his accomplice, or 

his conspirator in physical possession or 

control of a firearm?

(Footnote Continued Next Page)
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instructed the jury that each question “has to be proven by the 

Commonwealth beyond a reasonable doubt.” N.T., 7/23/13, at 58.

The jury found Appellant guilty of all charges and answered the above 

special questions in the affirmative, with exception of whether the PWID 

offense took place within 1,000 feet of a school. At the September 20, 2013 

sentencing, the trial court imposed an aggregate sentence of five to ten 

years’ incarceration plus a consecutive five years’ probation. Specifically, 

the trial court, applying the mandatory sentence under Section 9712.1, 

imposed a term of incarceration of five to ten years on the PWID charge and 

(Footnote Continued) _______________________

(c) Was a firearm within the defendant’s, his 

accomplice’s, or his conspirator’s reach?

(d) Were the narcotics (heroin and cocaine) 

found within the red Ford truck within 

1,000 feet of a school?

(e) Were the narcotics (heroin and cocaine) 

found within the red Ford truck within 

250 feet of a recreation center?

Appellant’s Brief at 8. We note with disapproval the absence of the jury 

interrogatories or jury slip in the certified record. Neither is there a copy of 

the trial transcripts from July 20-22, 2013, during which the form of the 

verdict slip was discussed and approved by the trial court. It is Appellant’s 

responsibility to ensure the record certified on appeal is complete. 

Commonwealth v. Bongiorno, 905 A.2d 998, 1000-1001 (Pa. Super. 

2006) (en banc), appeal denied, 917 A.2d 844 (Pa. 2007). Instantly, the 

gap in the record does not impede our review, and we decline to find waiver. 

See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006)

(holding, “any claims that cannot be resolved in the absence of the 

necessary transcript or transcripts must be deemed waived for the purpose 

of appellate review”), appeal denied, 916 A.2d 632 (Pa. 2007).
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a concurrent term of five to ten years on the conspiracy charge. The 

possession of a controlled substance count merged with the PWID. The trial 

court imposed a consecutive five-year term of probation on the firearms not 

to be carried without a license charge. Appellant again objected to the 

imposition of the mandatory sentence, citing Alleyne. Appellant did not file 

a post-sentence motion. Appellant filed a timely notice of appeal on October 

17, 2013.4

On appeal, Appellant raises a single question for our review.

Whether 42 Pa.C.S.A section 9712.1 is 

unconstitutional in light of the recent United States 

Supreme Court decision in Alleyne v. United 

States, 133 S. Ct. 2151 (2013)[?]

Appellant’s Brief at 5.5

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 well-settled standard of review. “A 

challenge to the legality of a sentence ... may be 

____________________________________________

4 The trial court ordered Appellant to file a concise statement pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b). Appellant failed to 

comply. However, as Appellant’s issue concerns the legality of his sentence, 

it is not waivable. See Commonwealth v. Foster, 17 A.3d 332, 336 (Pa. 

2011) (plurality) (noting that a challenge to the legality of a sentence is a 

jurisdictional issue and is not waivable). The trial judge apparently retired 

from the bench without preparing a Rule 1925(a) opinion for this appeal.

5 Appellant’s Brief was filed a week after this Court handed down our 

decision in Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) 

(en banc), but does not cite it. The Newman Court held Section 9712.1 

unconstitutional in its entirety. Appellant’s brief anticipates the issues and

arguments ultimately resolved by Newman and its progeny.
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entertained as long as the reviewing court has 

jurisdiction.” 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).

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014).

The mandatory sentencing provision of Section 9712.1 has recently 

been held to be unconstitutional in its entirety as violative of the United 

States Supreme Court’s ruling in Alleyne, that facts that increase 

mandatory minimum sentences must be submitted to the finder of fact and 

must be found beyond a reasonable doubt.6 Commonwealth v. Newman, 

99 A.3d 86, 98 (Pa. Super. 2014) (en banc). 

As described above, the trial court, with concern for the implications of 

Alleyne, specifically presented the triggering factual determination to the 

jury to find beyond a reasonable doubt. The Commonwealth argues this 

precludes the relief Appellant seeks based on Alleyne. “In this case, the 

____________________________________________

6 Because the mandatory sentence under Section 9712.1 is longer than the 

mandatory sentence provided for in Section 6317, only the former was 

imposed at sentencing. Our discussion, however, pertains equally to Section 

6317, which was held unconstitutional in its entirety by this Court in 

Commonwealth v. Bizzel, 107 A.3d 102, 105 (Pa. Super. 2014).
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jury did find that the Commonwealth established all relevant facts beyond a 

reasonable doubt, including those facts triggering the mandatory minimum 

sentence. Thus, the due process and Sixth Amendment concerns identified 

in Alleyne were not implicated, and [Appellant] is not entitled to relief.” 

Commonwealth’s Brief at 8.

We conclude the trial court’s employment of an unauthorized 

alternative procedure to that mandated by Section 9712.1 is unavailing. In 

Commonwealth v. Valentine, 101 A.3d 801, 811-812 (Pa. Super. 2014), 

this Court determined that the mandatory minimum sentences imposed 

pursuant to Sections 9712 and 9713 were unconstitutional even if the facts 

that trigger the mandatory minimum sentence are submitted to the factfinder and found beyond a reasonable doubt, instead of by the trial court by 

a preponderance of evidence at sentencing. Valentine, supra at 811-812. 

In so concluding, the Court recognized that our decision in Newman held 

“that the unconstitutional provisions of [comparable mandatory sentencing 

provisions] are not severable ... and that the statutes are therefore 

unconstitutional as a whole.” Id.; see also Commonwealth v. Fennell, 

105 A.3d 13, 20 (Pa. Super. 2014) (holding that notwithstanding the fact 

triggering the imposition of a mandatory sentence under 18 Pa.C.S.A. 7508 

was stipulated to at trial, the statute was facially unconstitutional under the 

principles of Newman and Valentine), Commonwealth v. Wolfe, 106 

A.3d. 800, 805-806 (Pa. Super. 2014) (holding that the mandatory 
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minimum sentencing provision of 42 Pa.C.S.A. 9718(a)(1) was 

unconstitutional even though the triggering fact was also an element of the 

offense for which Appellant was convicted). Construing a similarly worded 

provision in 42 Pa.C.S.A. § 6317(b), we noted, “that, pursuant to Alleyne,

Section 6317(b) is now an element of the crime despite the language in the 

statute specifically stating that it was not an element. Thus, the 

legislature clearly did not intend the result mandated by the decision in 

Alleyne.” Commonwealth v. Bizzel, supra at 105 (emphasis in original). 

As we noted in Newman, “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, supra at 101-102.

Acknowledging Newman’s holding, the Commonwealth alternatively 

argues any error is harmless. Commonwealth’s Brief at 9.

The consistent point that emerges from [recent 

Superior Court] decisions, however, is even where 

Alleyne is not complied with, that is, even where 

sentencing factors that increase a sentence are left 

to a judge rather than a jury to determine, such 

error can be deemed harmless. When such analysis 

is applied here, where there was no Alleyne error, 

[Appellant] is not entitled to relief.

Id.

We disagree. This Court has recently explained as follows. 

As noted above, Newman did acknowledge that 

Alleyne errors, like those under Apprendi v. New 

Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 
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435 (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 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).

Fennell, supra at 19 n.5. The Commonwealth’s reliance on 

Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc), 

appeal denied, 95 A.3d 277 (Pa. 2014), and Commonwealth v. Matteson, 

96 A.3d 1064 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014), 

as support for the application of harmless error analysis is misplaced in light 

of Newman and Valentine. 

In Valentine, this Court noted the tension between 

Newman, Watley, and Matteson. See Valentine, 

supra at 812 n. 4. However, the Valentine Court 

concluded that Newman controlled based on the 

conclusion in Newman that the subsections of the 

mandatory minimum statutes in Pennsylvania cannot 

be severed. Id. Based on the above passage, it 

appears that the Matteson Court concluded that 

Section 9718(a)(2) could still be constitutionally 

applied since the Commonwealth “proved every 

element of aggravated indecent assault of a child 

beyond a reasonable doubt, including a victim under 

the age of 13[.]” Matteson, supra at 1067. 

However, the Matteson Court could not reach that 

conclusion, unless it first concluded implicitly that 

the various subsections of Section 9718 were 
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severable. Pursuant to this Court’s decision in 

Newman, we conclude this is not correct. In our 

view, Newman abrogated this Court’s decision in 

Matteson.

Wolfe, supra at 806 (footnote omitted).

For these reasons, we conclude the trial court imposed an illegal 

sentence that must be corrected. See Cardwell, supra. Accordingly, we 

vacate the September 20, 2013 judgment of sentence and remand for 

resentencing.

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

Judge Wecht joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015