J-S37027-15

2015 PA Super 159

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRANK CAPLE,

Appellant No. 2379 EDA 2014

Appeal from the Judgment of Sentence June 4, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0002451-2013

BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

OPINION BY SHOGAN, J.: FILED JULY 24, 2015

Appellant, Frank Caple, appeals from the judgment of sentence 

entered in the Court of Common Pleas of Montgomery County. After careful 

consideration, we vacate and remand.

The trial court summarized the procedural and factual history of this 

case as follows:

A Criminal Complaint was filed February 16, 2013 against 

[Appellant], charging him with two counts of Possession with 

Intent to Deliver a Controlled Substance1; three counts of 

Possession of a Controlled Substance2; Possession of Drug 

Paraphernalia3; and Simple Assault4. After a 3-day jury trial, 

[Appellant] was found guilty of all charges on December 17, 

2013.

1 35 P.S. § 780-113(a)(30) – One count of 

Possession with the Intent to Deliver Cocaine; and 

one count of Possession with Intent to Deliver

Oxycodone.
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2 35 P.S. §780-113(a)(16) - One count of Possession 

of Cocaine; one count of Possession of Oxycodone; 

and one count of Possession of Marijuana.

3 35 P.S. §780-113(a)(33)

4 18 Pa.C.S.A. §2701(a)(1)

The events leading to these charges began on February 

16, 2013, at approximately 7:00 a.m. That day, Officer 

Jonathan Gallagher, was dispatched to America’s Best Value Inn 

(hereinafter “the Inn”) located in Pottstown, Montgomery County 

for a report of a domestic assault. Upon arriving at the Inn, 

Officer Gallagher joined two other officers and spoke with 

Yolanda Smith and Anthony King, who were occupying room 

115. From this conversation, Officer Gallagher learned that an 

assault had just occurred. Neither Smith nor King was involved 

in the assault and they directed Officer Gallagher to room 210 of 

the Inn. However, the manager at the Inn indicated that room 

210 was vacant. Since the victim was not located yet, Officer 

Gallagher asked the manager to open the door to room 210 

nevertheless. It was apparent that room 210 was in fact vacant, 

but shortly thereafter, Officer Gallagher heard a radio 

transmission that the victim could possibly be located in room 

215.

Officer Gallagher proceeded to room 215 and although the 

curtains were drawn, they were open enough that he could see 

there was a light on. He began to knock very loudly and 

announced “police” in his attempt to locate the victim. After 

doing this several times, to no avail, Officer Gallagher asked the 

manager to open the door. He then located a female, Gail 

Benedetto, in the bathroom. Ms. Benedetto was not the assault 

victim, however while he was in room 215, Officer Gallagher 

heard through transmission that the victim had been located. 

Officer Gallagher noticed there were two metal crack pipes 

on top of a dresser in room 215. At that point, Ms. Benedetto 

was taken from the room in order to secure it while a search 

warrant was applied for. Found during the execution of the 

search warrant were: two cell phones located on the sink in 

room 215; a stack of business cards that said “Flip 

Entertainment,” along with a telephone number printed on the 

cards; the two metal crack pipes mentioned earlier; a Western 
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Union receipt indicating Frank Caple sent $100 to Amber Fuller; 

a ceramic plate, razor blade, piece of a straw, blue pill bottle, 

small black glassine packaging baggies, and a bag of marijuana, 

all found in the desk drawer; a blue backpack containing men’s 

clothing and two dirty socks with large chunks of a white 

substance inside; a black and orange backpack containing a pack 

of Newport cigarettes surrounded by unused pink and red Ziploc 

baggies; a red jacket with several small baggies that contained a 

white substance found inside; and a pair of men’s Dickie pants 

with “Flip Company Home Remodeling” business cards sticking 

out of them. Testing done on several of the items seized and 

submitted to National Medical Services Laboratory provided a 

positive result for Cocaine, Oxycodone, and Marijuana.

While the search of room 215 was occurring, the victim of 

the assault, Cicely McCarty was taken to the police station. 

Officer Gallagher met her at the station and noticed her face was 

swollen, she had a cut on her lip, and she was upset. lt was 

discovered that Ms. McCarty was doing drugs in room 115 and 

ended up sleeping there on the floor. The next morning, 

February 16, 2013, [Appellant] (identified as “Frank” or “Flip”) 

called room 115 and told Ms. McCarty to leave. About two 

minutes later, [Appellant] came downstairs to room 115 and 

engaged in a verbal and physical fight with Ms. McCarty. As she 

left, Ms. McCarty called the cops. This call was what initially led 

Officer Gallagher to the Inn and resulted in the charges filed 

against [Appellant].

After [Appellant] was found guilty of all counts, he was 

sentenced on June 4, 2014. Due to the uncertainty of this 

Commonwealth’s status on mandatory minimum sentences as a 

result of the Supreme Court’s novel decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013), this court entered a sentence 

that was comprised of two mandatory minimum sentences. 

However, recognizing that future decisions in this 

Commonwealth may change the constitutionality of [Appellant’s] 

mandatory minimum sentence, we provided an alternate 

sentence.

Accordingly, we imposed the following sentence. For 

Count One – Possession with Intent to Deliver Cocaine, 

[Appellant] received a mandatory minimum sentence of 3 to 10 

years due to the category of weight in which the jury indicated 

on the verdict slip; a consecutive 2 to 10 year mandatory 
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minimum sentence for Count Two - Possession with Intent to 

Deliver Oxycodone; and a concurrent 6 to 24 month sentence for 

Count Seven - Simple Assault. The court made a determination 

of guilt without further penalty for the Possession of

Paraphernalia charge, and the three Possession of Controlled 

Substance charges merged for sentencing purposes.

We then issued the following alternative sentence in the 

event 42 Pa.C.S.A. §7508(a)(3)(ii) and §7508(a)(2)(i) were 

found to be unconstitutional. [Appellant] shall serve 21 to 120 

months for Possession with Intent to Deliver Cocaine; and 18 to 

120 months for the Possession with intent to Deliver Oxycodone 

charge. All other sentences would remain the same.

[Appellant] filed timely a Post-Sentence Motion on June 

16, 2014, which was denied by this court on July 23, 2014. The 

instant Notice of Appeal was filed on August 19, 2014, which 

prompted this court to direct [Appellant] to produce a statement 

of issues in conformance with Pennsylvania Rule of Appellate 

Procedure 1925(b). [Appellant] has since complied with that 

directive.

Trial Court Opinion, 12/1/14, at 1-5 (internal citations and some footnotes 

omitted).

Appellant presents the following issues for our review:

Did the trial court abuse its discretion when it denied Appellant’s 

motions to suppress evidence found in Room 215 and in 

Appellant’s backpack?

Did the trial court impose an illegal sentence upon Appellant 

when it imposed the mandatory minimum sentence requested by 

the Commonwealth where said mandatory sentence statute was 

unconstitutional?

Appellant’s Brief at 4. 

Appellant first maintains that the trial court erred in denying his 

motion to suppress evidence found in Room 215. Appellant’s Brief at 32. 

Appellant argues that officers had no reason to lawfully enter Room 215. 
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Id. at 23. Specifically, Appellant contends that the police were not justified 

in entering Room 215 at the Inn, “as there were no exigent circumstances 

extant that would have justified the officers’ entry into that room without 

probable cause or a search warrant.” Id. Appellant asserts that although 

the police contend that their reason for entering Room 215 without a 

warrant was their concern for the safety of the alleged victim, the police 

knew that the alleged victim was no longer at the Inn. Id. As a result, the 

officers had no reason to believe that the alleged victim was in Room 215 of 

the Inn. Id. Appellant argues that any items seen in the room by the 

officers could not be used in a supporting affidavit for a search warrant, 

thereby rendering the subsequent search warrant for Room 215 

constitutionally invalid and requiring that the results of the search be 

suppressed as fruit of the poisonous tree. Id. at 23-24. 

The standard of review an appellate court applies when considering an 

order denying a suppression motion is well established. An appellate court 

may consider only the Commonwealth’s evidence and so much of the 

evidence for the defense as remains uncontradicted when read in the 

context of the record as a whole. Commonwealth v. Russo, 934 A.2d

1199, 1203 (Pa. 2007) (citing Commonwealth v. Boczkowski, 846 A.2d 

75 (Pa. 2004)). Where the record supports the factual findings of the trial 

court, the appellate court is bound by those facts and may reverse only if 

the legal conclusions drawn therefrom are in error. Id. However, it is also 
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well settled that an appellate court is not bound by the suppression court’s 

conclusions of law. Id. (citing Commonwealth v. Duncan, 817 A.2d 455 

(Pa. 2003)).

With respect to factual findings, we are mindful that it is 

the sole province of the suppression court to weigh the credibility 

of the witnesses. Further, the suppression court judge is entitled 

to believe all, part or none of the evidence presented. However, 

where the factual determinations made by the suppression court 

are not supported by the evidence, we may reject those findings. 

Only factual findings which are supported by the record are 

binding upon this [C]ourt.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995) 

(citations omitted). In addition, we are aware that questions of the 

admission and exclusion of evidence are within the sound discretion of the 

trial court and will not be reversed on appeal absent an abuse of discretion. 

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003). In 

appeals from suppression orders, our scope of review is limited to the 

evidence presented at the suppression hearing. In the Interest of L.J., 79 

A.3d 1073, 1088–1089 (Pa. 2013).1 

The Fourth Amendment protects “[t]he right of the people to be secure 

in their persons, houses, papers, and effects, against unreasonable searches 

and seizures.” U.S. Const. amend. IV; Pa. Const. art. 1, § 8. “The 

____________________________________________

1 Our Supreme Court in L.J. clarified that the scope of review of orders 

granting or denying motions to suppress is limited to the evidence presented 

at the suppression hearing. The suppression hearing in this case post-dates 

L.J., so L.J. is applicable here. Commonwealth v. Davis, 102 A.2d 996, 

999 n. 5 (Pa. Super. 2014).
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protection of the Fourth Amendment does not depend on a property right in 

the invaded place but does depend on whether the person who claims the 

protection of the Amendment has a legitimate expectation of privacy in the 

invaded place.” Commonwealth v. Brundidge, 620 A.2d 1115, 1118 (Pa. 

1993) (citing Rakas v. Illinois, 99 S.Ct. 421, 430 (1978)).

An expectation of privacy is present when the individual, 

by his conduct, exhibits an actual (subjective) expectation of 

privacy and that the subjective expectation is one that society is 

prepared to recognize as reasonable. The constitutional 

legitimacy of an expectation of privacy is not dependent on the 

subjective intent of the individual asserting the right but on 

whether the expectation is reasonable in light of all the 

surrounding circumstances. Additionally, a determination of 

whether an expectation of privacy is legitimate or reasonable 

entails a balancing of interests. 

Brundidge, 620 A.2d at 1118 (internal citations and quotation marks 

omitted). Also, the Supreme Court has stated that “a guest in a motel or 

hotel room has a legitimate expectation of privacy during the period of time 

it is rented.” Id.

As a general rule, “a search warrant is required before police may 

conduct any search.” Commonwealth v. White, 669 A.2d 896, 900 (Pa. 

1995). Absent the application of one of a few clearly delineated exceptions, 

a warrantless search or seizure is presumptively unreasonable. 

Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007). This is the law 

under both the Fourth Amendment to the United States Constitution and 

Article I, Section 8 of the Pennsylvania Constitution. Id. 
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One such exception to our well-established warrant requirement is 

“exigent circumstances,” which this Court has explained, as follows:

The exigent circumstances exception to the warrant requirement 

recognizes that some situations present a compelling need for 

instant arrest, and that delay to seek a warrant will endanger 

life, limb[,] or overriding law enforcement interests. In these 

cases, our strong preference for use of a warrant must give way 

to an urgent need for immediate action.

* * *

Other factors may also be taken into account, such as whether 

there is hot pursuit of a fleeing felon, a likelihood that evidence 

will be destroyed if police take the time to obtain a warrant, or a 

danger to police or other persons inside or outside the 

dwelling.

Commonwealth v. Richter, 791 A.2d 1181, 1184-1185 (Pa. Super. 2002) 

(emphasis added). “An inquiry to determine whether exigent circumstances 

exist involves a balancing of the individual’s right to be free from 

unreasonable intrusions against the interest of society in investigating crime 

quickly and adequately.” Commonwealth v. Hinkson, 461 A.2d 616, 618 

(Pa. Super. 1983). “It requires an examination of all of the surrounding 

circumstances in a particular case.” Id. (citing Commonwealth v. Harris, 

239 A.2d 290, 292 (Pa. 1968)).

“One of these circumstances is when the police reasonably believe that 

someone within a residence is in need of immediate aid.” Commonwealth 

v. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013) (citing Commonwealth v. 

Galvin, 985 A.2d 783, 795 (Pa. 2009)). Indeed, Pennsylvania courts 
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specifically have singled out domestic disputes as a situation that may give 

rise to exigency:

“It is widely recognized that situations involving the potential for 

imminent physical harm in the domestic context implicate 

exigencies that may justify limited police intrusion into a 

dwelling in order to remove an item of potential danger.” 

Commonwealth v. Wright, 742 A.2d 661, 664 (Pa. 1999). 

The relevant inquiry is “whether there was an objectively 

reasonable basis for believing that medical assistance was 

needed, or persons were in danger[.]” Michigan v. Fisher, 558 

U.S. 45, 49 (2009) (citation and quotation marks omitted). 

“[T]he calculus of reasonableness must embody allowance for 

the fact that police officers are often forced to make split-second 

judgments—in circumstances that are tense, uncertain, and 

rapidly evolving.” Ryburn v. Huff, 132 S.Ct. 987, 992 (2012) 

(quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).

Potts, 73 A.3d at 1280-1281 (citations modified).

In the instant case, officers were responding to a domestic assault 

report at the Inn. N.T., 12/9/13, at 25. When the victim called 911, she 

sounded “extremely hysterical.” Id. The victim stated she had been 

assaulted by a black male named “Flip,” and that the assault had occurred at 

the Inn. Id. The victim also stated that “she could not give her location.” 

Id. The victim stated that the assault occurred in Room 115 of the Inn. Id. 

The victim also stated on her call that she had been in Rooms 115 and 215 

at the Inn. Id. at 52. 

When officers arrived at Room 115, the victim was not discovered. 

N.T., 12/9/13, at 28. The occupants of that room directed officers to Room 

210. Id. at 29. After discovering that Room 210 was vacant, the officers 

received information from the dispatcher that the victim could be located in 
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Room 215. Id. at 29, 130, 152. During the investigation, the officers also 

learned that Flip had another room at the Inn: Room 215. Id. at 130. At 

this point, the victim still had not been located. Id. at 29-30. As a result, 

the officers proceeded to Room 215. Id. at 30.

When officers arrived at Room 215, although the curtains to the room 

were drawn, they were open enough so that officers could see that there 

was a light on in the room. N.T., 12/9/13, at 30-31. The officers heard 

movement in the room as well. Id. at 30. The officers knocked on the door 

and announced themselves, but the occupant refused to open the door. Id.

at 31. The officers directed the Inn manager to open the door. Id. The 

officers entered Room 215 under the belief that the victim may be in that

room and was possibly in danger or in need of aid. Id. at 31. At the time 

they entered Room 215, they also had not been able to locate the 

perpetrator of the assault. Id. at 31. Officer Gallagher testified that after 

he had made entry into the room and discovered Gail Benedetto 

(“Benedetto”) hiding in the bathroom, he heard a radio transmission that the 

victim had been located. Id. at 32. 

Reviewing the totality of these circumstances, we conclude that police 

were justified in their warrantless entry of Room 215 at the Inn. The 

exigency in this case was created by the information received by officers 

that led them to believe that an act of domestic violence had occurred. 

Specifically, this information created a reasonable belief that the victim was 
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in need of the officers’ assistance. Potts, 73 A.3d at 1280-1281. Before 

entering Room 215, the officers had not located the perpetrator of the 

assault or the victim. The information relayed to officers established that 

Room 215 was connected to the victim and the perpetrator, and officers 

properly conducted their search of that room for purposes of excluding it as 

the victim’s location. These exigent circumstances allowed the officers to 

take “immediate action” and enter Room 215 without a warrant to prevent 

further harm. 

Furthermore, we find no merit to Appellant’s argument that the 

officers had evidence that the victim was no longer at the Inn and thus had 

no basis to continue the search for her there. The evidence of record 

establishes that the officers were receiving multiple reports from several 

sources regarding this incident. While the evidence of record reveals that 

officers had a report that the victim was no longer at the Inn, the officers 

also had a report that the victim and “the male” were still in a room at the 

Inn. N.T., 12/9/13, at 78-80. The victim was less than forthcoming with 

information regarding her whereabouts due to her concern about an 

outstanding probation violation warrant. Id. at 57, 83. The victim also told 

the 911 dispatcher that she did not know where she was. Id. Moreover, 

Officer Gallagher provided the following explanation on cross-examination as 

to why he did not discredit the information that the victim was at the Inn 

based solely on the victim’s statement that she was no longer at the Inn:
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Again, because sometimes people lie to me. I have a victim to 

find. I need to make sure she’s okay. It’s similar to when 

people have 911 hang-ups. They say everything is okay. We 

still go to make sure that someone is not holding a gun to their 

head saying you better tell them everything is okay.

Id. at 83. As our Supreme Court has stated, “[c]ourts have recognized the 

combustible nature of domestic disputes, and have accorded great latitude 

to an officer’s belief that warrantless entry was justified by exigent 

circumstances when the officer had substantial reason to believe that one of 

the parties to the dispute was in danger.” Commonwealth v. Davido, 106 

A.3d 611, 622 (Pa. 2014). Moreover, courts have recognized that deference 

to officers’ on-the-spot reasonable judgments is particularly warranted in 

domestic disputes. Id. Thus, despite this conflicting testimony, we 

conclude that under the totality of the circumstances, the police were 

justified in their warrantless entry of Room 215. 

Once lawfully in the motel room, officers saw two crack pipes in plain 

view on the dresser. We apply the following test to determine whether the 

plain view exception to the warrant requirement applies:

For the exception to be present, initially, the officer must not 

have violated the Fourth Amendment in arriving at the place 

from which the evidence could be plainly viewed. Moreover, two 

additional conditions must be satisfied to justify the warrantless 

seizure. First, the incriminating character of the item must be 

immediately apparent. Also, the officer must have a lawful right 

of access to the object itself.

Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009) (quotation 

marks and citations omitted).
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As mentioned, the officers lawfully arrived in the motel room during 

their search for the victim. Additionally, the incriminating character of the 

crack pipe was immediately apparent to Officer Gallagher and the officer had 

a lawful right of access to the object itself. Turner, 982 A.2d at 92. Thus, 

we conclude that the officer lawfully discovered the crack pipes in plain view 

in Room 215. 

Moreover, based on the identification of the crack pipes, the officers 

secured the room and applied for a search warrant for Room 215. “[A] 

warrant must describe the place to be searched and the items to be seized 

with specificity, and the warrant must be supported by probable cause.” 

Commonwealth v. Waltson, 724 A.2d 289, 292 (Pa. 1998). “In order to 

obtain a valid search warrant, the affiant must establish probable cause to 

believe that execution of the warrant will lead to the recovery of contraband 

or evidence of a crime.” Commonwealth v. Janda, 14 A.3d 147, 157 (Pa. 

Super. 2011). We review the issuing authority’s decision in light of the 

totality of the circumstances:

Pursuant to the “totality of the circumstances” test set forth by 

the United States Supreme Court in [Illinois v. Gates, 462 U.S. 

213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)], the task of an 

issuing authority is simply to make a practical, commonsense 

decision whether, given all of the circumstances set forth in the 

affidavit before him, including the veracity and basis of 

knowledge of persons supplying hearsay information, there is a 

fair probability that contraband or evidence of a crime will be 

found in a particular place. ... It is the duty of a court reviewing 

an issuing authority’s probable cause determination to ensure 

that the magistrate had a substantial basis for concluding that 

probable cause existed. In so doing, the reviewing court must 
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accord deference to the issuing authority’s probable cause 

determination, and must view the information offered to 

establish probable cause in a commonsense, non-technical 

manner.

Id. at 157-158. 

Here, the warrant identifies the place to be searched as follows:

America’s Best Value Motel Room #215. This motel is 

located at 29 High St. Pottstown Borough Montgomery County, 

PA 19464. Room #215 is located on the upper level of the 

motel on southeast corner of the complex. Room #215 has a 

green door with “#215” marked on the [front].

Commonwealth’s Suppression Exhibit 2, Search Warrant, 2/16/13, at 1. The 

items to be searched and seized were identified as drugs and drug 

paraphernalia. Id. As such, the search warrant described the place to be 

searched and the items to be seized with specificity.

Additionally, Officer Gallagher executed an affidavit of probable cause 

in support of the search warrant. Commonwealth’s Suppression Exhibit 2, 

Jonathan Gallagher Affidavit, 2/16/13, at 1-2. In addition to outlining the 

circumstances of his investigation that led him to Room 215, the affidavit 

included the following statement regarding what Officer Gallagher observed 

once in Room 215:

While speaking with Benedetto, I noticed in Plain View on 

top of the room’s dresser, two metal pipes. These pipes are 

consistent with those I have seen in my career, to be Crack 

Cocaine smoking pipes. The ends of the pipes were charred and 

appeared to have copper mesh inside.

Benedetto stated that she had been allowed to stay in this 

room by “Flip”. She claimed to not know where “Flip” was. 
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Benedetto stated that she has been staying in this room for 2 

days.

Id. at 2. Officer Gallagher presented the following conclusion in requesting 

the search warrant:

Based on the above facts and circumstances which I 

believe to be true and correct, I believe that there is drug 

activity presently going on inside Room #215 of the America’s 

Best Value Motel. I further believe that the Crack Cocaine 

smoking pipes are evidence of such activity.

At this time I respectfully request that a SEARCH 

WARRANT be issued for ROOM #215 of the AMERICA’S BEST 

VALUE MOTEL, in order to seize the evidence in plain view and 

any other evidence that is concealed, showing the drug activity 

that is going on in this particular room. THIS MOTEL ROOM IS 

LOCATED IN THE BOROUGH OF POTTSTOWN, MONTGOMERY 

COUNTY, PA 19464.

I believe this search warrant is necessary to seize the 

evidence and prosecute those parties involved.

Id. 

The evidence of record establishes that the search warrant identified 

the area to be searched and items to be seized with specificity, and it was 

supported by probable cause. Accordingly, the search warrant was properly 

issued. 

Upon search of the room, Officers discovered the previously described 

drugs and paraphernalia. Because the warrant was properly issued, we 
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cannot agree that the trial court erred in denying Appellant’s motion to 

suppress this evidence.2 Therefore, Appellant’s first claim lacks merit. 

In his second issue, Appellant argues that the judgment of sentence 

imposed against him is illegal. Appellant’s Brief at 33. Appellant contends 

that the mandatory minimum three-year sentence imposed pursuant to 18 

Pa.C.S. § 7508 has been held unconstitutional following the decision of 

Alleyne v. Unites States, U.S. , 133 S.Ct. 2151 (2013). Id. Appellant 

further maintains that this Court has held that 18 Pa.C.S. § 7508 is 

unconstitutional following the Alleyne decision. Id. Thus, Appellant 

argues, his sentence should be vacated and his case should be remanded to 

the trial court for re-sentencing. Id. at 34. Furthermore, Appellant asserts 

that the trial court’s alternate sentence should not be imposed by this Court 

on appeal. Id. 

The Commonwealth agrees3 with Appellant’s assertion that the initial 

sentence imposed upon Appellant is illegal in light of Alleyne and the 

____________________________________________

2

In his statement of questions involved, Appellant avers that the officers 

illegally searched the backpack that was in Room 215. Appellant’s Brief at 

4. Appellant, however, fails to develop any argument on the alleged 

unlawful search of the backpack in his appellate brief. We note that the 

search of the backpack in Room 215 was lawfully conducted. 

Commonwealth v. Reese, 549 A.2d 909, 911 (Pa. 1988) (“Where a search 

warrant adequately describes the place to be searched and the persons 

and/or things to be seized the scope of the search “extends to the entire 

area in which the object of the search may be found” and properly includes 

the opening and inspection of containers and other receptacles where the 

object may be secreted.”).
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related cases of this Commonwealth. The trial court also acknowledged that 

in light of recent caselaw, its “effort at the time of the instant trial in 

submitting the weight determinations for the jury to determine beyond a 

reasonable doubt on the verdict sheet has not proven to be a viable solution 

to Alleyne.” Trial Court Opinion, 12/1/14, at 20. 

This Court has ruled that section 7508, in its entirety, is 

unconstitutional. Commonwealth v. Cardwell, 105 A.3d 748, 755 (Pa. 

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

(en banc). As such, the trial court’s reliance upon section 7508 when 

sentencing Appellant was error, necessitating that we vacate Appellant’s 

sentence.

We must next consider whether we should remand this case for 

resentencing or impose the alternate sentence that the trial court issued. 

Both the trial court and the Commonwealth urge us to adopt the alternate 

(Footnote Continued) _______________________

3

In its brief, the Commonwealth provides the following discussion on 

Appellant’s second issue:

The Commonwealth maintains its position that 

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

(en banc), and its progeny, including Commonwealth v. 

Fennell, 105 A.3d 13 (Pa. Super. 2014), were improperly 

decided. It acknowledges, however, that they are binding 

precedent at this time. Accordingly, the Commonwealth 

concedes that the sentence, pursuant to the aforementioned 

cases, is illegal.

Commonwealth’s Brief at 10. 
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sentence issued in conjunction with the initial sentence in anticipation of that 

sentence being deemed illegal pursuant to Alleyne and its progeny. Trial 

Court Opinion, 12/1/14, at 20-21; Commonwealth’s Brief at 10-11. 

Appellant, however, asserts that the matter should be remanded for resentencing by the trial court. Appellant’s Brief at 35. 

We note the following tenets regarding a vacated sentence. When a 

sentence is vacated it is rendered a legal nullity. Commonwealth v. 

Wilson, 934 A.2d 1191, 1196 (Pa. 2007). In Wilson, the Supreme Court 

ruled that the Commonwealth could introduce evidence in support of a 

sentencing enhancement after remand that it did not introduce at the first 

sentencing proceeding. Id. at 1198. Once the initial sentence is vacated, 

the admissibility of evidence at the second sentencing hearing becomes a 

matter committed to the sound discretion of the trial court, as no restraints 

are placed upon the trial court’s exercise of its discretion in this regard. Id. 

Furthermore, we have explained that “[w]hen a sentence is vacated and the 

case is remanded to the sentencing court for resentencing, the sentencing 

judge should start afresh.” Commonwealth v. Jones, 640 A.2d 914, 919–

920 (Pa. Super. 1994). We further explained:

Reimposing a judgment of sentence should not be a mechanical 

exercise. Given the important nature of the interests involved, 

the judge at the second sentencing hearing should reassess the 

penalty to be imposed on the defendant-especially where 

defense counsel comes forward with relevant evidence which 

was not previously available. Thus, [appellant’s] conduct since 

the prior sentencing hearing is relevant at resentencing. The 

sentencing judge must take note of this new evidence and 
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reevaluate whether the jail term which [appellant] received is a 

just and appropriate punishment.

Id. at 920 (internal quotations and citations omitted).

We have been unable to identify any authority allowing a trial court to 

issue an alternate sentence that can be imposed on direct appeal should the 

initial sentence be deemed illegal, nor do the parties direct us to any. Here, 

the trial court cites no authority in support of its position that this Court 

should adopt the alternate sentence. The Commonwealth, in support of its 

claim that resentencing is unnecessary because the trial court provided an 

alternate sentence, relies on caselaw providing that this Court may correct 

an illegal sentence directly and cites to Commonwealth v. Randal, 837 

A.2d 1211, 1214 (Pa. Super. 2003), and Commonwealth v. Alarie, 547 

A.2d 1252 (Pa. Super. 1988), as support for its position. Commonwealth’s 

Brief at 10-11.

In Commonwealth v. Randal, the appellant pled guilty to two counts 

of Driving Under the Influence (DUI), one count of Receiving Stolen Property 

(RSP), and the summary offense of Windshield Obstructions and Wipers. 

Randal, 837 A.2d at 1211. The appellant was sentenced as follows: on the 

first DUI count, to serve a period of incarceration of not less than thirty days 

nor more than two years, less one day; no further penalty was imposed for 

the second DUI count; on the RSP count, to a two-year period of probation, 

consecutive to the sentence on the first DUI count; for the summary offense, 

the court imposed a fine; and pursuant to Act 63, the sentencing court 
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ordered Appellant to have installed an approved ignition interlock device on 

every vehicle owned or registered in the appellant’s name. Id. at 1212. 

Subsequent to the appellant’s appeal of his judgment of sentence, the 

Supreme Court held that portions of Act 63, requiring the sentencing court 

to order the installation of the ignition interlock system, verify compliance, 

and certify the installation, were found to be unconstitutional. Id. at 1213. 

Thus, this Court determined it was obligated to correct the sentence 

imposed upon the appellant. Id. at 1214. Relying on our authority to 

amend a sentence directly, this Court vacated the appellant’s sentence only 

to the extent that it imposed the requirement that the appellant install an 

ignition interlock system on all vehicles he owned. Id. The remainder of the 

sentence was left intact. Id. 

Thus, in Randal, this Court did not vacate the appellant’s original 

sentence and impose a new sentence. Instead, we simply vacated an 

element of the appellant’s sentence found to be unconstitutional and allowed 

the rest of the sentence to remain in effect. Accordingly, we cannot agree 

that the Randal case provides support for the requested action of this Court 

vacating a sentence in its entirety, and then re-sentencing Appellant with an 

alternate sentence provided by the trial court at the time of the initial 

sentencing.

Additionally, in Alarie, following the trial court’s imposition of 

sentence, the appellant filed a motion for reconsideration. Alarie, 547 A.2d 
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1255. The trial court recognized its error in sentencing the appellant and 

issued an order granting the motion for reconsideration and vacating part of 

the illegal sentence. Id. at 1255-1256. The trial court, however, did not 

expressly grant the motion for reconsideration within thirty days prescribed 

by the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. §§ 

1701(b)(3)(ii), 903; Alarie, 547 A.2d at 1256. Thus, the trial court’s 

untimely order granting the motion for reconsideration lacked binding effect. 

Id. Upon review, this Court determined that the trial court’s order vacating 

the illegal sentence was correct. Id. at 1256. As a result, instead of 

remanding, this Court amended the sentence by vacating only the illegal 

portion of the sentence. Id.

The Alarie case also is distinguishable from the case before us. As 

noted, in Alarie, this Court simply struck off a portion of the appellant’s 

sentence that was illegal and the remainder of the sentence was affirmed. 

In the case before us, the original sentence imposed is illegal and must be 

vacated in its entirety. Therefore, neither Randal nor Alarie provide 

authority for the Commonwealth’s and trial court’s proposed action.

As such, we conclude that this matter should be remanded for 

resentencing. The vacated sentence has become a legal nullity. Wilson, 

934 A.2d at 1196. An entirely new sentence must be imposed. Upon 

remand for re-sentencing, the trial court “should start afresh” and “reassess 

the penalty to be imposed on [Appellant].” Jones, 640 A.2d at 919-920. 
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For these reasons, we decline to impose the alternate sentence set forth by 

the trial court.

Judgment of sentence vacated. Case remanded for proceedings 

consistent with this Opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015