J-S59020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BILLY WHITE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3255 EDA 2016

Appeal from the PCRA Order October 13, 2016

In the Court of Common Pleas of Montgomery County 

Criminal Division at No(s): CP-46-CR-0002429-2012

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 19, 2017

Billy White appeals pro se1from the order entered October 13, 2016, 

in the Court of Common Pleas of Montgomery County, that dismissed, without 

a hearing, his first petition filed pursuant to the Pennsylvania Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. White seeks collateral relief 

from the judgment of sentence to serve an aggregate sentence of five to ten 

years’ imprisonment, imposed after he was convicted by a jury of possession 

with intent to deliver (PWID) cocaine, possession of cocaine, possession of 

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 Former Justice specially assigned to the Superior Court.

1 Appointed counsel filed a Turner/Finley no-merit letter and was granted 

leave to withdraw by the PCRA court. See Commonwealth v. Turner, 544 

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. 

Super. 1988) (en banc).
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marijuana, and possession of drug paraphernalia.2 Based upon the following, 

we affirm in part, reverse in part, and remand for resentencing.

The parties are well acquainted with the facts of this case, which were

set forth by this Court in White’s direct appeal. See Commonwealth v. 

White, 97 A.3d 814 (Pa. Super. 2014) (unpublished memorandum).

Before this Court, White raises nine issues, which we reproduce 

verbatim:

[1.] IS IT ANVIOLATION OF THE PETITIONERS CONSTITUTIONAL 

RIGHT TO RECEIVE AND RESPONED TO 907 (1) OPINION FOR 

DISSMISSING THE P.C.R.A. PETITION WITH OUT AN HEARING, 

AND ABUSE OF TRIAL COURT DISCRETION ON DUE PROCESS 

RIGHTS SO PETITIONER COULD RESPONED TO THE LAYER OF 

INEFFECTIVE CLAIMS?

[2.] WAS TRIAL COUNSEL INFFECTIVE IN FAILING TO CHALLENGE 

THE VERCITY OF THE AFFIDAVIT OF PROBABLE CAUSE WHEN IT 

“LACK PROBABLE CAUSE” TO ARREST THE PETITONER BASIS 

SOLEY OFF OF HEARSAY WITHOUT AN EYE WITNESS OR AN 

WIRED TAP, AND COMMONWEALTH WITNESS TESTIFIED THAT 

THE PETITIONER NEVER TOLD ANITRIA WHITE HE HAD THE 

VEHICLE THE NIGHT IN QUESTION, BUT COURTS OPINION SAY 

DIFFERENT.

[3.] WAS TRIAL COUNSEL INFFECTIVE IN FAILING TO SUPPRESS 

EVIDENCE DO TO THE “LACK OF PROBABLE CAUSE,” AND THE 

ILLEGAL SEARCH THE NIGHT IN QUESTION? WHEN THE VEHICLE 

WAS ONLY IN AN UNAUTHORIZED AREA AND THE CALL WAS TO 

REMOVE THE VEHICLE FROM THE PREMISES, WHEN

RESGISTIONS WAS VALID AS OFFICER ASTON TESTIFIED TOO 

AND NO FELONEY WAS COMMITED AND NO EXIGENT 

CIRCUMSTANCES WAS AT HAND?

[4.] IS THERE LACK OF SUBJECT MATTER JURISDICTION AND AN 

VIOLATION OF PETITIONERS RIGHTS WHEN ARRESTED WITH 

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2 35 P.S. § 780-113(a)(30), (16), (31)(i), and (32), respectively.
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OUT AN ARREST WARRANT IN HIS HOME WITH HIS GIRL FRIEND 

WITH OUT AN FELONY BE COMMITED IN THE PRESENCE OF THE 

POLICE THE NIGHT IN QUESTION 2/26/12? CHECK MAGISTRATE 

DOCKETS AND SIGNATURES.

[5.] WAS THERE A LACK OF SUBJECT MATTER JURISDICTION 

WHEN ESTABLISHING PRIMA FACIE CASE AT THE PRELIMINARY 

HEARING WHEN IT LACK JURISDICTION DUE TO THE NON

EXISTING ARREST WARRANT AND WITNESSES NOT WILLING TO 

TESTIFY FOR THE COMMONWEALTH BECAUSE WITNESSES DID 

NOT KNOW TO WHAT THEY WERE TESTIFING TOO DUE TO THE 

MISSLEADING STATEMENTS BY DET JACKSON QUESTIONS TRIAL 

COURTS JURISDICTION OVER THE PETITIONER?

[6.] WAS TRIAL COUNSEL INEFFECTIVE FOR REPRESENTING 

COMMONWEALTH'S WITNESSES THE SAME TIME HE WAS 

DEFENDING HIS CLIENT AND NOT LETTING THE COURTS KNOW 

AND HIS CLIENT KNOW HE WAS REPRESENTING ANITRIA WHITE 

AND TOREYN TUGGLE AND BRITTANI TUGGLE WHO PROVIDED 

STATEMENTS TO IMPLICATE HIS CLIENT IN THESE ALLEGE ACTS?

[7.] WAS TRIAL COUNSEL INEFFECTIVE FOR NOT MEETING WITH 

HIS CLIENT PRIOR TO TRIAL AND FILING POST SENTENCE 

MOTIONS AND NOT SHOWING THE PETITIONER DISCOVERY 

EVIDENCE AT ALL OR STRATEGIZING A DEFENSE EXPLAINS THE 

CAUSE OF THE UNDISCOVERED ARREST WARRANT AND 

UNSIGNED SEARCH WARRANT IN THESE CROSS APPEALS?

[8.] WAS TRIAL COUNSEL INEFFECTIVE IN STIPULATING TO THE 

WEIGHT OF DRUGS WITHOUT INVESTIGATING OR ASKING HIS 

CLIENT ABOUT IT WHEN IT WAS NEVER ESTABLISHED AT THE 

PRELIMINARY HEARING AND FAILING TO OBJECT TO 

PETITIONER'S MANDATORY MINIMUM ON POST SENTENCE

REVIEW WHEN IT WAS NOT PRESENTED TO JURY AND IT WAS 

LATER DISCOVERED ON THE BILL OF INFORMATION AFTER 

SENTENCING?

[9.] WAS THE TRIAL COURT SENTENCING SCHEME ILLEGAL IN 

FAILING TO CREDIT TIME SPENT IN CUSTODAY WHILE WAITING 

TRIAL FOR ALL THREE DOCKETS (8501-2010) AND (2429-2012) 

AND (2430-2012) WHEN COMMITMENT DATE WAS THE DAY OF 

SENTENCING 2/8/13?
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White’s Brief at 4–5.3 

Our standard of review of a PCRA court’s ruling is well settled:

Under the applicable standard of review, we must determine

whether the ruling of the PCRA court is supported by the record 

and is free of legal error. The PCRA court’s credibility 

determinations, when supported by the record, are binding on this 

Court. However, this Court applies a de novo standard of review 

to the PCRA court’s legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citations omitted).

Preliminarily, we note White presents no argument in his brief with 

regard to the seventh, eighth and ninth issues. Accordingly, these issues have

been waived. See Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. 

Super. 2008) (stating an issue identified on appeal but not developed in an 

appellant’s brief is abandoned and, therefore, waived).

With regard to the first issue, it appears White is contending he did not 

receive Pa.R.Crim.P. 907 notice of intent to dismiss the petition. The PCRA 

court, however, opined that the Rule 907 notice was mailed to White following 

PCRA counsel’s filing of a no-merit letter:

PCRA counsel filed a Tu[r]ner/Finley no-merit letter dated April 

20, 2015,11 finding no meritorious issues to pursue in regard to 

docket number 2429-2012. On September 12, 2016, [the PCRA 

court] issued a pre-dismissal notice pursuant to Pa.R.Crim.P. 907, 

notifying White of this Court’s intention to dismiss his PCRA 

petition without a hearing and of his right to file a response to the 

Rule 907 notice.12 13 This notice was mailed to White via certified 

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3 White timely complied with the order of the trial court to file a Pa.R.A.P. 

1925(b) statement. White raised 51 claims in his concise statement. See

White’s Concise Statement, 11/21/2016.
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mail. White did not file a response and on October 12, 2016, a 

final order of dismissal was issued.

11 A copy of PCRA counsel’s no-merit letter is appended to 

this Opinion so as to be made a part of the record.

12 The pre-dismissal notice also permitted PCRA counsel to 

withdraw his appearance.

13 The pre-dismissal notice incorrectly identifies the date of 

PCRA counsel’s no-merit letter as April 21, 2015. Rather[,] 

the no-merit letter which pertains to this case is dated April 

20, 2015.

PCRA Court Opinion, 12/16/2016, at 5.4 

Even if we accept White’s claim that he did not receive the Rule 907 

notice, no relief is due. When a Turner/Finley letter has been filed and 

served on the defendant, the PCRA court can dismiss a PCRA petition without 

a hearing and without notice of its intent to do so where the court waits 20 

days following the service of the letter. See Commonwealth v. Bond, 630 

A.2d 1281, 1283 (Pa. Super. 1993) (holding additional notification of the 

court’s intention to dismiss appellant’s petition without a hearing under 

Pa.R.Crim.P. 1507 [now Rule 907] was unnecessary where counsel and court 

adhered to procedure established in Finley). See also Commonwealth v. 

Hopfer, 965 A.2d 270, 275 (Pa. Super. 2009) (“[S]ervice of any type of notice 

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4 Despite the PCRA court’s statement that the no-merit letter is appended to 

the opinion, there is no attachment to the PCRA court’s opinion, and the nomerit letter is not otherwise included in the certified record. Nor is the Rule 

907 notice in the certified record. Nevertheless, the absence of these 

documents in the certified record does not hinder our review.
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of dismissal must occur at least twenty days before [appellant’s] petition is 

dismissed.”). Here, White was informed by the April 20, 2015 no-merit letter 

that there were no meritorious PCRA issues, and the PCRA court formally 

dismissed the PCRA petition on October 12, 2016. Therefore, no relief is due 

on White’s first claim.

In White’s second claim, he contends trial counsel was ineffective for 

failing to challenge the veracity of the affidavit of probable cause when it 

lacked probable cause to arrest him. We find this issue is waived because 

White failed to raise the issue in his PCRA petition. See Pa.R.A.P. 302(a) 

(“Issues not raised in the lower court are waived and cannot be raised for the 

first time on appeal.”). Accordingly, no relief is due on this claim.

In his third claim, White argues that trial counsel was ineffective in 

failing to challenge the search of the vehicle. The PCRA court properly rejected 

this issue, concluding that White had no privacy right in the abandoned car. 

See PCRA Court Opinion, 12/16/2016, at 9-11. We agree with the PCRA 

court’s analysis and no further discussion is warranted here. Accordingly, 

White’s third claim fails.

White’s fourth and fifth claims challenge subject matter jurisdiction. In 

White’s fourth issue, he asserts an arrest warrant does not exist because the 

Office of the Clerk of Court’s response to his motion seeking a copy of the 

arrest warrant was that “We do not have the records you requested.” See 

White’s Brief at 15, and Appendix B. In White’s fifth issue, he argues the 
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Commonwealth presented hearsay testimony at the preliminary hearing. No 

relief is due.

The courts of common pleas have statewide jurisdiction in all cases 

arising under the Crimes Code. Commonwealth v. Jones, 929 A.2d 205, 

210 (Pa. 2007) (citation omitted). The Commonwealth invokes that 

jurisdiction when it files a formal and specific accusation of the crimes 

charged. Id. at 211-212. The Office of the Clerk of Court’s response to 

White’s record request does not establish lack of subject matter jurisdiction. 

Furthermore, hearsay testimony is appropriate at the preliminary hearing 

stage. See Pa.R.Crim.P. 542(E) (“Hearsay as provided by law shall be 

considered by the issuing authority in determining whether a prima facie case 

has been established.”). Therefore, we reject White’s fourth and fifth claims.

In White’s sixth claim, he contends trial counsel was ineffective for 

representing White because counsel had a conflict of interest based on his 

representation of Toreyn Tuggle, her daughter, Brittani Tuggle, and White’s 

sister, Anitria White.

In reviewing this ineffectiveness claim, 

[w]e begin our analysis of ineffectiveness claims with the 

presumption that counsel is effective. To prevail on his 

ineffectiveness claims, Appellant must plead and prove, by a 

preponderance of the evidence, three elements: (1) the 

underlying legal claim has arguable merit; (2) counsel had no 

reasonable basis for his action or inaction; and (3) Appellant 

suffered prejudice because of counsel’s action or inaction.
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Commonwealth v. Spotz, 18 A.3d 244, 259-60 (Pa. 2011) (citations 

omitted). Furthermore, 

to establish a conflict of interest, an appellant must show that 

“counsel actively represented conflicting interests[,] and the 

actual conflict adversely affected counsel’s performance.” 

Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 563 (Pa. 

2009) (citing Spotz V, 896 A.2d at 1232); see also

Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808, 818 (Pa. 

2009) (rejecting the view that counsel’s representation of a client 

continues until such time as the client’s sentence expires, and 

requiring a petitioner who alleges a conflict of interest rooted in 

his counsel’s obligation to a former client to establish that the 

conflict adversely affected counsel’s performance).

Spotz, at 268.

Here, as the PCRA court noted, Brittani Tuggle did not testify at trial, so 

there was no conflict of interest as to her. See PCRA Court Opinion, 

12/16/2016, at 17. Further, with respect to Toreyn Tuggle and Anitria White, 

our review leads to the conclusion White has failed to show that counsel 

actively represented conflicting interests and that the actual conflict adversely 

affected counsel’s performance. As such, White’s sixth claim fails.

Nevertheless, although the issues raised by White in this appeal are 

either waived or meritless, our review of the record reveals the trial court 

imposed a mandatory minimum sentence of five to ten years in prison for the 

PWID conviction pursuant to 42 Pa.C.S. § 7508(a)(2)(ii). Section 7508 has 

been found to be constitutionally infirm in light of the United States Supreme 

Court’s June 17, 2013 decision in Alleyne v. United States, 133 S.Ct. 2151, 
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186 L. Ed. 2d 314 (U.S. 2013).5 See Commonwealth v. Cardwell, 105 A.3d 

748 (Pa. Super. 2014); Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. 

Super. 2014).

It is well settled that we may raise a legality of sentencing issue sua 

sponte, so long as there is “a basis for our jurisdiction to engage such review.” 

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (holding 

appellate court had no jurisdiction to consider Alleyne claim raised in untimely 

petition). Here, we have jurisdiction to address the issue of the legality of the 

sentence since the PCRA petition is timely.

The PCRA court opines that the legality of sentencing claim regarding 

the mandatory sentence was previously litigated in White’s direct appeal. See 

PCRA Court Opinion, 12/16/2016, at 20, 24. In deciding White’s direct appeal

on February 26, 2014, a panel of this Court mentioned Alleyne in a footnote:

In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 

L. Ed. 2d 435 (2000), the United States Supreme Court held: 

“[o]ther than the fact of a prior conviction, any fact that increases 

the penalty for a crime beyond the prescribed statutory maximum 

must be submitted to a jury, and proved beyond a reasonable 

doubt.” Apprendi, 530 U.S. at 489. Further, during the pendency 

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In Alleyne, the United States Supreme Court held “[a]ny fact that, by law, 

increases the penalty for a crime is an ‘element’ that must be submitted to 

the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct. at 

2155. Applying Alleyne, the courts of this Commonwealth have determined 

our mandatory minimum sentencing statutes are unconstitutional where the 

language of those statutes “permits the trial court, as opposed to the jury, to 

increase a defendant’s minimum sentence based upon a preponderance of the 

evidence” standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. 

Super. 2014) (en banc). 
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of this appeal, the United States Supreme Court decided Alleyne 

v. United States and held that, where an “aggravating fact”

increases a mandatory minimum sentence, “the fact is an element 

of a distinct and aggravated crime. [The fact] must, therefore, be 

submitted to the jury and found beyond a reasonable doubt.”

Alleyne v. United States, U.S. , , 133 S. Ct. 2151, 2162-

2163, 186 L. Ed. 2d 314 (2013).

Yet, Alleyne does not render illegal Appellant’s five-year 

mandatory minimum sentence. Indeed, as is relevant to the case 

at bar, Appellant’s five-year mandatory minimum sentence was 

triggered because Appellant was convicted of possession of 

cocaine with the intent to deliver and because: 1) Appellant 

stipulated to the fact that the cocaine weighed 10.53 grams 

(which constitutes “at least ten grams and less than 100 grams”

of cocaine) and 2) “at the time of sentencing [Appellant had] been 

convicted of another drug trafficking offense.” 18 Pa.C.S.A. § 

7508(a)(2)(ii). Alleyne is thus inapplicable to the case at bar, as 

one of the two “aggravating facts” was stipulated to by Appellant 

and the other “aggravating fact” constituted a prior conviction.

Commonwealth v. White, 97 A.3d 814 [763 EDA 2013] (Pa. Super. 2014) 

(unpublished memorandum, at 5 n.2) (emphasis in original). Therefore, 

because White stipulated to the weight of the cocaine, the panel concluded 

Alleyne did not apply.

We recognize the early decisions interpreting Alleyne, “implied that [a 

defendant] could legally stipulate to the amount of drugs recovered, and agree 

to the imposition of the mandatory minimum sentence under Section 7508.”

Commonwealth v. Rivera, 154 A.3d 370, 379 (Pa. Super. 2017) (en banc).

However, these cases were issued before the impact of Alleyne was clarified 

by this Court. As the Rivera Court explained:

Indeed, it was not until our decision in [Commonwealth v.] 

Newman, [99 A.3d 86, 98 (Pa. Super. 2014)], filed in August of 

2014, that an en banc panel held Pennsylvania’s mandatory 
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minimum sentencing statutes, which permitted a trial court to 

increase a defendant’s minimum sentence based upon a 

preponderance of the evidence standard, were unconstitutional 

under Alleyne and incapable of severance. After Newman, this 

Court consistently rejected any harmless error analysis that 

attempted to circumvent the plain language of the statutes. See 

Commonwealth v. Valentine, 2014 PA Super 220, 101 A.3d 

801, 811 (Pa. Super. October 3, 2014) (rejecting argument that 

submitting factual prerequisite of mandatory minimum statute to 

the jury would satisfy Alleyne; “[b]y asking the jury to determine 

whether the factual prerequisites ... had been met, the trial court 

effectively determined that the unconstitutional provisions [of the 

statutes] were severable.”), appeal denied, 633 Pa. 749, 124 A.3d 

309 (Pa. 2015); Commonwealth v. Fennell, 2014 PA Super 

261, 105 A.3d 13, 20 (Pa. Super. November 21, 2014) (rejecting 

argument that defendant’s stipulation to amount of drugs 

recovered satisfies mandate of Alleyne; “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.”), appeal denied, 632 Pa. 

691, 121 A.3d 494 (Pa. 2015); Commonwealth v. Wolfe, 2014 

PA Super 288, 106 A.3d 800, 806 (Pa. Super. December 24, 2014) 

(“In our view, Newman abrogated this Court’s decision in 

Matteson.”).

Id. at 378–379. Therefore, applying Newman, a stipulation regarding the 

amount of drugs cannot serve to circumvent Alleyne. 

Turning to the present PCRA appeal, it is significant that the panel that 

decided White’s direct appeal in February of 2014 did not have the benefit of 

Newman, since Newman was not issued until August 20, 2014. In light of 

Newman, we do not regard White’s mandatory minimum sentencing issue as 

“previously litigated.” 42 Pa.C.S. § 9544(a).

Generally, Alleyne does not apply retroactively to cases on collateral 

review. See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 

2016). However, this Court has held, in the context of timely collateral review, 
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that Alleyne invalidated a mandatory minimum sentence when petitioner’s 

judgment of sentence was pending on direct review at the time Alleyne was 

decided. See Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015). 

Therefore, because White’s direct appeal was pending when Alleyne was 

decided, we conclude White’s mandatory minimum sentence is illegal and that 

he is entitled to resentencing.

Accordingly, the order of the PCRA court is affirmed in part, reversed in 

part, and this case is remanded for resentencing. 

Order affirmed in part, reversed in part. Case remanded. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2017