J-S79013-14

* Retired Senior Judge assigned to Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JACK D. PENNINGTON,

Appellant No. 3012 EDA 2013

Appeal from the Judgment of Sentence entered October 11, 2013,

in the Court of Common Pleas of Montgomery County,

Criminal Division, at No(s): CP-46-CR-0006758-2012

BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.: FILED DECEMBER 18, 2014

Jack Pennington (“Appellant”) appeals from the judgment of sentence 

imposed after a jury convicted him of three counts of delivery of a controlled 

substance, two counts of possession with intent to deliver 

methamphetamine, one count of possession with intent to deliver Percocet, 

five counts of dealing in unlawful proceeds, four counts of criminal use of a 

communications facility, and one count of possession of drug paraphernalia.1 

After careful review, we vacate and remand for resentencing.

The trial court summarized the pertinent facts and procedural history 

as follows:

____________________________________________

1 35 P.S. § 780-113(a)(16) and (30), 18 Pa.C.S.A. §§ 5111(a)(1), 7512(a), 

and 35 P.S. § 113(a)(32).
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[T]he Narcotics Enforcement Team of the Montgomery 

County Detective Bureau conducted a wiretap investigation into 

Appellant’s involvement in the sale of methamphetamine and 

Percocet. As a result of that investigation, Appellant, a retired 

detective sergeant with the Norristown Police Department, was 

arrested on June 19, 2012, in connection with several drug 

transactions.

At the preliminary hearing on August 28, 2012, Detective 

James Vinter, the lead detective of the investigation, testified 

that on June 19, 2012, surveillance observed Appellant meet 

with his drug source in the parking lot of the Plymouth Meeting 

Mall. Appellant exited his vehicle, and went over to the van his 

drug source was in. Appellant leaned into the driver’s side 

window of the van for several seconds. Believing that a drug 

transaction occurred, the surveillance officers moved in to 

effectuate an arrest. Appellant was taken into custody and both 

Appellant’s vehicle and the van were searched. It was stipulated 

at the preliminary hearing that in the van 82.85 grams of 

methamphetamine was found. A search of Appellant’s vehicle, a 

Cadillac, in relevant part revealed a fully loaded .38 caliber 

Smith and Wesson handgun. Percocet pills and 

methamphetamine were also found in the Cadillac.

Additionally, the criminal complaint and the accompanying 

affidavit of probable cause, which was sworn to and verified on 

July 27, 2012, lists in pertinent part that a search of Appellant’s 

vehicle uncovered a Smith and Wesson .38 handgun, 

approximately 102.99 grams of Percocet and methamphetamine. 

It further delineated the items recovered from a search of the 

Chevrolet van, which included in relevant part, 82.85 grams of 

methamphetamine.

On July 18, 2013, a suppression hearing was held. ... 

[T]he Commonwealth made a motion to amend the bills of 

information in light of [the] pronouncement of the United States 

Supreme Court in Alleyne v. United States, –––U.S. –––, 133 

S.Ct. 2151, 186 L.Ed.2d 314 (2013). The Commonwealth noted 

that there were several mandatories involved in this case, 

namely the 82.25 grams of methamphetamine, the 102.2 grams 
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of Percocet and the firearm mandatory.[2] The Commonwealth 

wanted to amend the bills of information to reflect the weight of 

the drugs and the presence of the firearm. Defense counsel 

objected to the Commonwealth’s request, arguing that allowing 

the Commonwealth to amend was adding new and additional 

charges. [The trial court] took the issue under advisement [and 

subsequently permitted the Commonwealth to amend the 

criminal information].

Trial Court Opinion, 1/28/14 at 2-4 (citations to the record omitted).3

A jury trial commenced on July 22, 2013, and the jury convicted 

Appellant of the aforementioned charges. Following a hearing on October 

____________________________________________

2 See 18 Pa.C.S.A. § 7508 (Drug trafficking sentencing and penalties) and 

42 Pa.C.S.A. § 9712.1 (Sentences for certain drug offenses committed with 

firearms).

3 With regard to the weight of the drugs, the record is unclear as to the 

precise weight of the Percocet and methamphetamine. Our review of the 

record reflects that the Commonwealth amended the criminal information as 

follows: 

Count 9 (PWID): 82.25 grams of methamphetamine/to include firearm 

mandatory

Count 10 (PWID): 102.99 grams of oxycodone/to include firearm 

mandatory

Count 11(PWID): to include firearm mandatory

Count 12(PWID): 28 grams of methamphetamine

Count 13 (PWID): 28 grams of methamphetamine 

Count 14 (PWID): 28 grams of methamphetamine

Count 15 (PWID): 28 grams of methamphetamine

Amended Criminal Information, 7/16/13. 

In light of our determination in this case that imposition of mandatory 

minimum sentences based on the weight of the drugs was constitutionally 

impermissible, the precise weight of the drugs is not dispositive.
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11, 2013, the trial court sentenced Appellant to a term of imprisonment of 

17 to 50 years. This appeal followed. Both Appellant and the trial court 

have complied with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Whether the trial court’s grant of the Commonwealth’s oral 

motion to amend the Criminal Information created new 

charges not passed in accordance with the Pennsylvania 

Crimes Code and the Pennsylvania Constitution rendering 

the jury’s verdicts of guilty on Counts 9, 10 and 11 a legal 

nullity?

2. Did the record below support the Suppression Court’s 

ruling denying [Appellant’s] Motion to Suppress and are 

the [trial] court’s findings of fact and conclusions of law 

amenable to appellate review?

Appellant’s Brief at 3.

In his first issue, Appellant argues that the trial court erred in granting 

the Commonwealth’s oral motion to amend the criminal information to allow 

the jury to determine the weight of the drugs, and to determine whether the 

drugs were found in close proximity to the firearm, for purposes of imposing 

mandatory minimum sentences pursuant to 18 Pa.C.S.A. § 7508 and 42 

Pa.C.S.A. § 9712.1. Appellant’s Brief at 6-17. Specifically, Appellant claims 

that the recent United States Supreme Court decision in Alleyne v. United 

States, 133 S.Ct. 2151, 2155 (2013), rendered § 7508 and § 9712.1 

unconstitutional, and the trial court acted impermissibly in allowing the 

Commonwealth to amend the criminal information to include for jury 

consideration the weights of the drugs seized from Appellant and the 
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proximity of the firearm to Appellant’s drugs in order to subject him to the 

mandatory minimum sentencing provisions. Accordingly, Appellant argues 

that his mandatory minimum sentences should be vacated. 

In Alleyne, the United States Supreme Court held that any facts 

leading to an increase in a mandatory minimum sentence are elements of 

the crime and must be presented to a jury and proven beyond a reasonable 

doubt. Courts of this Commonwealth have held that “[t]he Alleyne decision 

... 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.” Commonwealth v. Watley, 81 

A.3d 108, 117 (Pa. Super. 2013) (en banc).

Following Alleyne, this Court in Commonwealth v. Newman, 99 

A.3d 86 (Pa. Super. 2014) (en banc) reviewed the constitutionality of 42 

Pa.C.S.A. § 9712.1, which enhances the minimum sentence where a firearm 

is found in the vicinity of the contraband.4 We held in Newman that the 

unconstitutional provisions of § 9712.1 which permit a trial judge to impose 

the mandatory minimum sentence based on a preponderance of the 

evidence are unconstitutional pursuant to Alleyne, and that the 

____________________________________________

4 We note that the Commonwealth has filed a petition for allowance of 

appeal with the Pennsylvania Supreme Court in Newman, docketed at 646 

MAL 2014. As of the date of this decision, the petition for allowance of 

appeal remains pending.
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unconstitutional provisions were “essentially and inseparably connected” to 

the valid provisions of the statute, and therefore not severable. Newman, 

99 A.3d at 101. Accordingly, we concluded that Alleyne rendered 42 

Pa.C.S.A. § 9712.1 unconstitutional in its entirety, and we vacated the 

judgment of sentence and remanded for the re-imposition of sentence 

without consideration of any mandatory minimum sentence provided by 

Section 9712.1.

Here, in accordance with our decision in Newman, which holds that 

section 9712.1 in its entirety is unconstitutional, we are constrained to 

vacate the judgment of sentence and remand for the re-imposition of 

sentence without consideration of any mandatory minimum sentence 

provided by Section 9712.1. 

In addition, Appellant challenges the mandatory minimum sentences 

imposed pursuant to 18 Pa.C.S.A § 7508 after the jury determined that 

Appellant possessed methamphetamine of a weight of between 10 to 100 

grams and possessed Percocet of a weight of 100 grams or more. 

In Commonwealth v. Fennell, --- A.3d ---, 2014 WL 6505791

(Pa. Super. November 21, 2014) and Commonwealth v. Cardwell --- A.3d 

---, 2014 WL 6656644 (Pa. Super. November 25, 2014), this Court recently 

declared § 7508 unconstitutional in its entirety pursuant to Alleyne. 

Specifically, we held in Fennell and Cardwell that § 7508(b) — which 

permits the trial court to determine the weight or amount of the drugs in 
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question by a “preponderance of the evidence” — is unconstitutional in light 

of Alleyne. Moreover, we reasoned in Fennell and Cardwell that the 

unconstitutional “preponderance of the evidence” provision of § 7508(b) is 

not severable from the rest of the statute, and therefore § 7508 as a whole 

is unconstitutional. Accordingly, pursuant to Fennell and Cardwell, we 

vacate Appellant’s judgment of sentence and remand for the re-imposition of 

sentence without consideration of any mandatory minimum sentencing 

provided by 42 Pa.C.S.A. 7508. 

The Commonwealth argues that by amending the criminal information 

to permit the jury to determine beyond a reasonable doubt the proximity of 

drugs to the gun as well as the weight of the drugs, the trial court effectively 

complied with the requirements of Alleyne by submitting the factual 

questions for a jury to determine beyond a reasonable doubt. The 

Commonwealth thus argues that the trial court’s imposition of mandatory 

minimum sentences pursuant to 18 Pa.C.S.A. § 9712 and 42 Pa.C.S.A. § 

7508 should be upheld.

In Commonwealth v. Valentine, --- A.3d ---, 2014 WL 4942256 (Pa. 

Super. Oct 03, 2014) we held that the trial court was not permitted to 

empower the jury to resolve the factual bases for imposition of a mandatory 

minimum sentence. We reasoned that “[b]y asking the jury to determine 

whether the factual prerequisites [of the mandatory minimum statue at 

issue] had been met, the trial court effectively determined that the 
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unconstitutional provisions of [the statute, employing a preponderance of 

the evidence standard] were severable.” Valentine at 8. We concluded 

however that the unconstitutional “preponderance of the evidence” 

provisions were not severable, and moreover, that by permitting the 

Commonwealth to amend the criminal information and submitting the factual 

questions for jury consideration, “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.” Id. citing 

Newman, 99 A.3d at 102 (holding that to allow a jury to determine beyond 

a reasonable doubt whether the conditions exist for imposition of a 

mandatory minimum sentence would effectively put the courts in a position 

of “manufactur[ing]” a replacement procedure in an effort to comply with 

Alleyne, and that such action by the courts would constitute an 

impermissible legislative function).

Therefore, consonant with Newman and Valentine, we conclude that 

by amending the criminal information and allowing the jury to determine 

beyond a reasonable doubt the proximity of the gun to the drugs for 

purposes of 42 Pa.C.S.A. 9712.1, and the weight of the drugs for purposes 

of 18 Pa.C.S.A 7508, the trial court created a new procedure contrary to the 

existing statute, which constituted an impermissible legislative function in an 

effort to impose the mandatory minimum sentences in compliance with 

Alleyne. As we explained in Valentine, “Newman makes clear that ‘it is 
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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.’” Id. quoting Newman, 99 

A.3d at 102. Here, the trial court did not have the authority to allow the 

jury to determine the factual predicates of the mandatory minimum 

sentencing statutes, and its efforts to impose mandatory minimum 

sentences pursuant to 18 Pa.C.S.A § 9712.1 and 42 Pa.C.S.A § 7508 were in 

error. 

In his second issue, Appellant argues that the trial court erred in 

denying his suppression motion. Appellant’s Brief at 18-40. Our scope and 

standard of review is well-settled:

An appellate court's standard of review in addressing a 

challenge to a trial court's denial of a suppression motion is 

limited to determining whether the factual findings are supported 

by the record and whether the legal conclusions drawn from 

those facts are correct. [Because] the prosecution prevailed in 

the suppression court, we may consider only the evidence of the 

prosecution and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record 

as a whole. Where the record supports the factual findings of 

the trial court, we are bound by those facts and may reverse 

only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations 

omitted).

Appellant argues that the trial court erred in denying his motion to 

suppress wiretap evidence obtained through the interception of his 

telephone calls. Specifically, Appellant argues that in its affidavit of probable 
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cause in support of the wiretap order, the Commonwealth failed to include 

“[a] particular statement of facts showing that other normal investigative 

procedures with respect to the offense have been tried and have failed, or 

reasonably appear to be unlikely to succeed if tried or are too dangerous to 

employ” pursuant to 18 Pa.C.S.A. § 5709(3)(vii). Appellant’s Brief at 18.

Authorizations for interception of telephone communications are 

subject to the provisions of the Wiretapping and Electronic 

Surveillance Control Act, 18 Pa.C.S.A. §§ 5701–5782. An 

application for an order of authorization to intercept an 

electronic or wire communication must contain a sworn 

statement by the investigative or law enforcement officer who 

has knowledge of relevant information justifying the application, 

which statement must include “a particular statement of facts 

showing that other normal investigative procedures with respect 

to the offense have been tried and have failed, or reasonably 

appear to be unlikely to succeed if tried or are too dangerous to 

employ.” Id. at § 5709(3)(vii). In addition, before a judge may 

issue an order authorizing an interception, the judge is required 

to determine on the basis of the facts submitted in the 

application that there is probable cause for belief that “normal 

investigative procedures with respect to such offense have been 

tried and have failed, or reasonably appear to be unlikely to 

succeed if tried or to be too dangerous to employ.” Id. at § 

5710(a)(3).

Commonwealth v. Rodgers, 897 A.2d 1253, 1259

(Pa. Super. 2006).

Our courts have explained that suppression is not an appropriate 

remedy for the Commonwealth’s failure to include a sworn statement that 

other normal investigative procedures have failed, appear unlikely to 

succeed, or are too dangerous — in violation of section 5709(3)(vii).

Commonwealth v. Steward, 918 A.2d 758, 760 (Pa. Super. 2007) 
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(explaining that the Wiretap Act allows an aggrieved party to move for 

suppression on six enumerated grounds which do not encompass a violation 

of 5709(3)(vii)). Accordingly, to the extent Appellant seeks suppression 

based on the Commonwealth’s failure to include a sworn statement pursuant 

to section 5709(3)(vii), suppression is not available as a remedy under the 

Wiretap Act. Id.

Moreover, to the extent Appellant argues that the evidence presented 

to the Superior Court judge ruling on the wiretap was insufficient to establish 

probable cause to believe that normal investigatory methods had been 

adequately employed or would have been futile, this claim also fails. See 18 

Pa.C.S.A. § 5710(a)(3). This Court has addressed the “normal investigative 

procedures” requirement as follows:

This is an objective standard; reliance cannot be placed 

solely upon a subjective belief by the Attorney General or District 

Attorney that normal investigative procedures will not likely 

succeed. In this aspect, it will be observed, the standard 

imposed by the Pennsylvania legislature is more stringent than 

the requirement imposed by Title III. It is designed to 

guarantee that wiretapping will not be resorted to in situations 

where traditional investigative techniques are adequate to 

expose crime. The requirement also suggests that a wiretap 

should not be employed as the initial step in a police 

investigation. However, the Commonwealth is not required to 

show that all other investigative methods have been exhausted. 

In making this determination, moreover, the issuing authority 

may consider and rely upon the opinions of police experts. In 

reviewing the adequacy of the application to support the 

issuance of an order of authorization, we will interpret the 

application in a common sense manner, not overly technical, 

with due deference to the findings of the issuing authority.
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Rodgers, 897 A.2d at 1259 quoting Commonwealth v. Doty, 498 A.2d 

870, 880–81 (Pa. Super. 1985)

Our review of the record indicates that the evidence presented to the 

Superior Court judge ruling on the wiretap request was sufficient to establish 

that other investigatory methods had been adequately employed and failed 

or would have been futile or too dangerous. The extensive affidavit filed in 

support of the wiretap application supports this determination. The 65-page 

affidavit by Detective James Vinter included attestations that (1) the 

confidential informants who had been involved in the investigation were 

unable to provide any further information as to Appellant’s supply sources 

and manner of acquisition and distribution of contraband, as they did not 

have sufficient access to Appellant in order to obtain such information; (2) 

attempts to utilize a new informant had failed, and the possibility of 

procuring any more confidential informants whom Appellant would consider 

trustworthy were remote; (3) efforts by undercover police to infiltrate 

Appellant’s tightly knit network had failed and any further such efforts would 

only arouse suspicion; and (4) continuous physical or visual surveillance of 

Appellant’s residence was difficult as parking within sight of Appellant’s 

residence was prohibited and any effort to do so would arouse suspicion, and 

while the police department had placed surveillance cameras on Appellant’s 

residence, the cameras offered only restricted views of the residence and the 

footage was limited in its usefulness. Affidavit of Probable Cause, 6/18/12. 
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Upon review, and interpreting the wiretap application and affidavit in a 

common sense manner with due deference to the issuing authority, we find 

no error in the trial court’s denial of Appellant’s motion to suppress the 

wiretap. Rodgers, supra. 

However, pursuant to Alleyne and the decisions of this Court in 

Newman and Valentine, we vacate the judgment of sentence and remand 

for resentencing without consideration of 42 Pa.C.S.A. § 9712.1 and 18 

Pa.C.S.A. § 7508.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judge Strassburger joins the memorandum.

Judge Olson files a concurring statement in which Judge Strassburger 

joins.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/2014