J-S12012-15

*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GEORGE SLAUGHTER,

Appellant No. 3270 EDA 2013

Appeal from the Judgment of Sentence July 6, 2011

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0015984-2009

BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED MARCH 18, 2015

George Slaughter1appeals from the judgment of sentence of six to ten 

years incarceration that the trial court imposed after a jury convicted him of 

possession of a controlled substance (marijuana) with intent to deliver 

(“PWID”), possession of a firearm by a prohibited person, and possession of 

an instrument of crime. We vacate the judgment of sentence and remand 

for re-sentencing. 

The pertinent facts were outlined by the trial court herein:

On November 19, 2009, the Defendant, George Slaughter, 

was arrested and was charged with inter alia, possession of a 

controlled substance with the intent to deliver, possession of an 

instrument of crime, and possession of a firearm by a person 

ineligible for events which occurred at or near 607 Mifflin Street 

in the City and County of Philadelphia.

 

1 The Commonwealth, which had until January 2, 2015 to file a brief in this 

matter, has not submitted that document. 
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A jury trial was conducted before this court on May 3, 

2011. Viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, the following evidence was 

proved at trial: Police Officer Jeffrey Galazka conducted an 

investigation of 607 Mifflin Street on November 17, 2009 based 

on information he had received from an informant regarding the 

sale of narcotics at that address. Between the hours of 3 p.m. 

and 5 p.m., Officer Galazka, with his partner, Police Officer Kidd 

(first name not given) sat in an unmarked vehicle and observed 

their confidential informant (CI) attempt to purchase narcotics at 

that location. Someone (not the Defendant) answered the door 

and the CI entered the residence. Approximately two (2) 

minutes later, the CI returned to Officer Galazka’s vehicle and 

turned over two (2) red-tinted zip-lock packets each containing 

an offwhite chunky substance of alleged crack-cocaine.

Based on Officer Galazka's observation, a search warrant 

for the property was obtained and executed on November 19, 

2009. In a second floor bedroom, Officer Galazka found the 

Defendant standing at the foot of the bed. The Defendant told 

Officer Galazka that a firearm was located under a bed pillow. 

From that location, the officer recovered a .22 caliber five-shot 

revolver loaded with five (5) live rounds. Officer Galazka also 

observed a small safe sitting on the bed. He opened the safe 

which contained marijuana, a bottle containing 93 pills (later 

identified as Xanax), a digital scale, and numerous new and 

unused packaging in different colors. A work ID card and mail 

with address of the Defendant was also found. . . . 

Trial Court Opinion, 6/19/14, at 1-2 (footnotes and citations to record 

omitted). In the safe, there were twelve sandwich bags and forty-four 

smaller, blue and pink zip-lock packets. All of the packages contained 

marijuana. 

Appellant was sentenced on July 6, 2011. In the information, the 

Commonwealth had indicated that it intended to proceed both under the 

mandatory minimum applicable based upon the weight of the marijuana, 18 
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Pa.C.S. § 7508, which will be analyzed infra, as well as the mandatory 

minimum outlined in 42 Pa.C.S. § 9712.1, which applies when guns are 

found in close proximity to drugs and which also will be examined in full 

infra. At sentencing, the prosecution similarly indicated that it considered 

both to be at play. The Commonwealth noted that a jury found Appellant 

“guilty of possession with intent to deliver marijuana and a gun. It’s a 

mandatory sentence in this case.” N.T. Sentencing, 7/6/11, at 5. 

Separately, it observed that, with respect “to the marijuana, there will not 

be a minimum or maximum as normally would be the case,” and that the 

court “could only give a flat five-year sentence.” Id. Later, the 

Commonwealth mentioned that Appellant had a prior record score that 

included a “conviction for selling drugs” as well as various firearms offenses. 

Id. at 9. It continued, “So for those reasons the Commonwealth is asking for 

a sentence of five years for the marijuana PWID[.]” Id. at 11. These 

statements pertain to application of § 7508. 

While the sentencing court did not explicitly state which mandatory it 

was applying, it appears to have applied § 7508. The court stated, “On the 

marijuana case, based on the fact that, you know, it’s a mandatory 

minimum sentence, it just so happens that the mandatory sentence in that 

case is the maximum sentence as well, so I’m going to have to impose that 

sentence.” Id. at 12. Thus, the court did not mention the gun and imposed 

the sentence solely based upon the fact that the marijuana case had a 
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mandatory minimum. Next, in addition to the flat sentence of five years on 

the PWID, the court imposed a consecutive one to five year term of 

incarceration on the firearms offense, for a total sentence of six to ten years 

in jail. 

Appellant did not file a direct appeal, but he did file a timely PCRA 

petition on December 9, 2011. Counsel was appointed, and, on July 31, 

2012, counsel filed an amended petition averring that Appellant’s appellate 

rights should be reinstated since his trial counsel ignored Appellant’s request 

to file a direct appeal. On July 13, 2013, the Commonwealth agreed that the 

requested relief should be accorded. 

On October 31, 2013, the PCRA court granted reinstatement of 

Appellant’s direct appeal rights. Appellant thereafter filed the present, 

timely nunc pro tunc appeal. Appellant complied with the trial court’s 

directive to file a Pa.R.A.P. 1925(b) statement and raised one issue: “The 

Court erred in imposing the mandatory minimum sentence in this matter for 

the conviction for possession of marijuana because the Commonwealth did 

not produce at trial sufficient evidence of the amount of marijuana 

recovered.” Statement of Matters Complained of on Appeal Pursuant to 

Pa.R.A.P. 1925(b), 4/11/14, at 1. 

The trial court authored a response to this position. It indicated that it 

did not impose the five-year mandatory minimum sentence as to the PWID 

charge based upon the weight of the marijuana under 18 Pa.C.S. § 7508. 
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Rather, the trial court reported that it imposed the sentence pursuant to 42 

Pa.C.S. § 9712.1(a) “once the court determined that the Defendant was 

found with a gun and 280 grams of marijuana.” Trial Court Opinion, 

6/19/14, at 6. 

On appeal, Appellant raises one contention, “Is the mandatory 

sentence in this case an illegal sentence?” Appellant’s brief at 9. Appellant 

avers that he was sentenced under a statute declared unconstitutional by 

the Supreme Court in Alleyne v. United States, U.S. , 133 S.Ct. 2151 

(2013). He maintains that, while not raised below, this contention cannot be 

waived as it relates to the legality of his sentence. We agree with 

Appellant’s contentions and therefore vacate the sentence and remand for 

re-sentencing. 

Initially, we note that the record is unclear as to which mandatory 

minimum was applied herein. In its Pa.R.A.P. 1925(a) opinion, the court 

indicated that it sentenced pursuant to 42 Pa.C.S. § 9712.1(a). That statute 

provides, in relevant part that, if a person is convicted of violating 35 P.S. § 

780-113(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act 

(the “Act”), as Appellant was herein, the person must be sentenced to at 

least five years total confinement when, at the time of the offense, a firearm 

is in close proximity to the controlled substance.

2

 It justified its sentence 

 

2 That statute’s full text is as follows:
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based upon the fact that the jury determined that Appellant possessed a 

weapon, which was under the pillow on a bed, and that the jury also found 

that Appellant possessed the marijuana found in a safe located in the same 

area. 

The other mandatory minimum mentioned in the information and at 

the sentencing proceeding is outlined in 18 Pa.C.S. § 7508, which relates to 

drug trafficking sentencing and penalties. That statute provides in relevant 

part that, if a person is convicted of violating 35 P.S. § 780-113(30) of the 

Act, where the controlled substance is classified as a Schedule I3 drug under 

the Act, the person must be sentenced to five years imprisonment if the 

weight of the drugs was between ten and 100 grams and if the person has a 

prior drug trafficking conviction.”4 In both statutes, the applicability of the 

 

(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), 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.

42 Pa.C.S. § 9712.1(a). 

3

“Marihuana” is a Schedule I drug under the Act. 35 P.S. 780-104(1)(iv). 

4 The full text of the portion of § 7508 at issue herein is as follows
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mandatory minimums is determined by the sentencing court by a 

preponderance-of-the-evidence standard.5 

 

(2) 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 or a mixture 

containing it is classified in Schedule I or Schedule II under 

section 4 of that act and is a narcotic drug shall, upon 

conviction, be sentenced to a mandatory minimum term of 

imprisonment and a fine as set forth in this subsection: 

. . . . 

(ii) when the aggregate weight of the compound or 

mixture containing the substance involved is at least 

ten grams and less than 100 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. . . . 

18 Pa.C.S. § 7508(a)(2). 

5 Specifically, 42 Pa.C.S. § 9712.1 provides:

(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. § 9712.1(c).
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However, as noted, it appears that the Commonwealth invoked both 

statutes, and the trial court could have applied either one. In light of the 

fact that either mandatory minimum was potentially implicated herein, we 

will analyze Appellant’s present claim with respect to both mandatory 

minimum sentencing statutes. We first 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 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 wellestablished that “if 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).

 

Likewise, 18 Pa.C.S. § 7508 states:

(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 

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(b). 
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Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014). Appellant 

did not raise an Alleyne issue at sentencing or in his Pa.R.A.P. 1925(b) 

statement. However, in Commonwealth v. Watley, 81 A.3d 108, 118 

(Pa.Super. 2013) (en banc) (citations omitted), we noted, “Application of a 

mandatory minimum sentence gives rise to illegal sentence concerns, even 

where the sentence is within the statutory limits. Legality of sentence 

questions are not waivable and may be raised sua sponte by this Court.” 

We have recently explained the holding and impact of Alleyne as 

follows:

In Alleyne, the Supreme Court held that “facts that increase 

mandatory minimum sentences must be submitted to the jury” 

and must be found beyond a reasonable doubt. Alleyne, supra

at 2163. Alleyne is an extension of the Supreme Court's line of 

cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Alleyne, the Court 

overruled Harris v. United States, 536 U.S. 545, 122 S.Ct. 

2406, 153 L.Ed.2d 524 (2002), in which the Court had reached 

the opposite conclusion, explaining that there is no constitutional 

distinction between judicial fact finding which raises the 

minimum sentence and that which raises the maximum 

sentence.

Feeney, supra at 16 (citation omitted). 

This Court has held that, under Alleyne, 18 Pa.C.S. § 7508 is 

unconstitutional in its entirety.6 Commonwealth v. Vargas, 2014 WL 

7447678 (Pa.Super. 2014) (en banc); Commonwealth v. Cardwell, 2014 

 

6 The fact of the prior conviction invoking § 7508(a)(2)(ii) does not implicate 

Alleyne, see Apprendi v. New Jersey, 530 U.S. 466 (2000), but the 

weight of the drugs required to apply that section does. 
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WL 6656644 (Pa.Super. 2014); Feeney, supra; Commonwealth v. 

Thompson, 93 A.3d 478, 493 (Pa.Super. 2014). Additionally, 42 Pa.C.S. § 

9712.1 has been completely struck down as unconstitutional pursuant to the 

Alleyne decision. Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 

2014) (en banc); see also Commonwealth v. Ferguson, 2015 WL 49438 

(Pa.Super. 2015) (vacating sentence imposed under 42 Pa.C.S. § 9712, 

which concerns a mandatory minimum on offenses committed with a firearm 

under certain circumstances); Commonwealth v. Valentine, 101 A.3d 

801, 808 (Pa.Super. 2014) (same); Commonwealth v. Bizzel, 2014 WL 

6756277 (Pa.Super. 2014) (invalidating 18 Pa.C.S. § 6317, imposing a 

mandatory minimum sentence and pertaining to the sale of drugs within a 

certain distance from a school); Commonwealth v. Wolfe, 2014 WL 

7331915 (Pa.Super. 2014) (observing that any mandatory minimum statute 

in Pennsylvania that contains a format allowing the sentencing court to 

determine its application at sentencing by a preponderance of the evidence 

standard has been “struck down as facially unconstitutional in Newman and 

Valentine,” including 42 Pa.C.S.A. §§ 9712, 9712.1, 9713, and 9718).7

 

7 This author has noted her disagreement with the severability analysis in 

the cited cases. Commonwealth v. Wolfe, 2014 WL 7331915 (Pa.Super. 

2014) (Bowes, J., concurring); Commonwealth v. Bizzel, 2014 WL 

6756277 (Pa.Super. 2014) (Bowes, J., concurring). Furthermore, the issue 

is currently under review by our Supreme Court. Commonwealth v. 

Hopkins, 98 MAP 2013. 
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Under this recent authority, it is clear that Appellant must be 

resentenced without application of either mandatory minimum arguably 

applicable herein. 

Judgment of sentence vacated. Case remanded for resentencing in 

accordance with this decision. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2015