J-S65020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ARNOLD MILLER,

Appellant No. 2872 EDA 2014

Appeal from the Judgment of Sentence March 28, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002024-2012

BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 06, 2015

Appellant, Arnold Miller, appeals from the judgment of sentence 

entered following his convictions of possession of a controlled substance with 

intent to deliver (“PWID”) and simple possession of a controlled substance. 

We vacate the judgment of sentence and remand for resentencing.

The trial court set forth the underlying facts of this case as follows:

On August 3, 2011, at about 4:45 p.m., Philadelphia Police 

Officer Matthew Beattie went to 1220 West Lindley Avenue, the 

site of a large apartment building, to investigate an anonymous 

report that a tall black male was selling drugs out of Apartment 

601. (N.T. 2/28/14, 12, 13). Upon arrival, Officer Beattie 

provided a confidential informant (hereinafter “[the] CI”) $20.00 

in pre-recorded “buy” money and then accompanied the CI to 

the sixth floor of the building. The officer observed the CI 

approach Apartment 601, where he engaged Appellant, who was 

standing in the doorway of the apartment, in conversation. (Id. 

at 13, 16).
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After a brief conversation, both Appellant and the CI 

entered the apartment. (Id. at 14). The CI soon exited the 

apartment and returned to Officer Beattie at which time he gave 

the officer two clear plastic vials with orange tops containing a 

white chunky substance that testing revealed to be crack 

cocaine. (Id. at 14, 39). Officer Beattie returned to police 

headquarters and prepared a search and seizure warrant for the 

apartment. (Id.).

Once the warrant was approved, Officer Beattie returned 

to the apartment building on August 4, 2011, with other officers, 

including an Officer Hawkins, to execute the warrant. (Id. at 

17). Before executing the search and seizure warrant, Officer 

Hawkins, using pre–recorded “buy” money, made a purchase of 

crack cocaine from Appellant, who after engaging the officer in a 

brief conversation in the doorway of the apartment, ushered the 

officer into the apartment where Officer Hawkins purchased five 

purple Ziploc packets of crack cocaine. (Id. at 17, 18, 39). 

When Officer Hawkins returned with the narcotics, Officer Beattie 

and a back-up team executed the warrant. (Id. at 18).

Once inside the apartment, police placed Appellant under 

arrest. (Id. at 19). A search incident to arrest of Appellant 

yielded $106.00 in U.S. currency plus the two $20.00 bills in 

pre-recorded “buy” money given to Officer Hawkins. (Id. at 19).

The search of the apartment resulted in the seizure of a 

clear plastic bag filled with eighty-six clear [vials] containing 

crack cocaine that were the same shape, size, and color of the 

packets the CI turned over to the officer the previous day, 

eleven red Ziploc packets containing marijuana, a clear plastic 

bag containing twelve purple-tinted Ziploc packets that were the 

same shape, size, and color as the ones Officer Hawkins had 

purchased that contained crack cocaine, and a clear plastic bag 

that contained twelve clear vials with a gold top[].1 (Id. at 19-

20, 39). Police also recovered two hand guns from the kitchen, 

one of which was loaded. (Id. at 20-21). All of these items 

were placed on property receipts.

1

In total, there was in excess of two grams of crack 

cocaine. (N.T. 2/28/14, 39; 3/28/14, 5).

Trial Court Opinion, 4/15/15, at 2-3 (footnote omitted).
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On February 10, 2014, following a nonjury trial, Appellant was 

convicted of the crimes stated above. On March 28, 2014, the trial court 

sentenced Appellant to a mandatory term of incarceration of three to ten 

years for the conviction of PWID. Appellant filed a timely post-sentence 

motion, which was denied by operation of law on September 11, 2014. This 

timely direct appeal followed. Both Appellant and the trial court have 

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

Appellant presents the following issue for our review:

IS THE MANDATORY SENTENCE OF THREE TO TEN YEARS 

IMPOSED ON APPELLANT ILLEGAL BECAUSE THE STATUTORY 

PROVISION UNDER WHICH APPELLANT WAS SENTENCED IS 

UNCONSTITUTIONAL PURSUANT TO ALLEYNE V. UNITED 

STATES[, 133 S.Ct. 2151 (2013)] AND NUMEROUS 

PENNSYLVANIA SUPERIOR COURT DECISIONS?

Appellant’s Brief at 2.

Appellant argues that the trial court imposed an illegal mandatory 

minimum sentence for his conviction of PWID, which was based upon the 

weight of the drugs in question. In support of his argument that his 

mandatory minimum sentence is illegal, Appellant cites this Court’s recent 

decision in Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en 

banc), appeal denied, ___ A.3d ___ (Pa. filed July 27, 2015), which held 

that under the United States Supreme Court’s decision in Alleyne, as well as 

this Court’s decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa. 

Super. 2014) (en banc) and Commonwealth v. Valentine, 101 A.3d 801 

(Pa. Super. 2014), 18 Pa.C.S. § 7508 is unconstitutional.
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Although Appellant did not contest the imposition of the mandatory 

minimum sentence under Alleyne at the time of sentencing or in his postsentence motion, “a challenge to a sentence premised upon Alleyne ... 

implicates the legality of the sentence and cannot be waived on appeal.” 

Newman, 99 A.3d at 90. Moreover, this Court may address the legality of a 

sentence sua sponte. Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. 

Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014).

This Court has held that 18 Pa.C.S. § 7508 is invalid pursuant to 

Alleyne. See Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super. 

2014) (holding that, notwithstanding the fact triggering imposition of 

mandatory sentence under 18 Pa.C.S. § 7508 was stipulated to at trial, the 

statute was unconstitutional). As Appellant observes, an en banc panel of 

this Court has stated that “a mandatory minimum sentence imposed under 

this statute is illegal.” Vargas, 108 A.3d at 876 (citing Fennell). See also 

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

trial court erred by imposing mandatory minimum sentence under Section 

7508, even where parties stipulated to weight of drugs; applying Newman

and its progeny, and concluding that Section 7508(b) is not severable from 

remainder of statute; and remanding for resentencing without imposition of 
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mandatory minimum sentence).1 Accordingly, because 18 Pa.C.S. § 7508 is 

unconstitutional, we vacate the judgment of sentence and remand for 

resentencing.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2015

____________________________________________

1 The trial court has agreed with Appellant that, pursuant to current case 

law, the mandatory minimum sentence invoked here by application of 18 

Pa.C.S. § 7508 is illegal, the sentence should be vacated, and the case 

remanded for resentencing. Trial Court Opinion, 4/15/15, at 4-5. We 

further observe that the Commonwealth has recognized that case law 

authored by this Court is controlling until the Supreme Court rules 

otherwise, but has reserved its right to seek further review. 

Commonwealth’s Brief at 11, 15. Indeed, we must follow the decisional law 

established by our own Court. Commonwealth v. Santiago, 980 A.2d 

659, 666 n.6 (Pa. Super. 2009).

Furthermore, we note that recently in Commonwealth v. Hopkins, 

117 A.3d 247 (Pa. 2015), our Supreme Court, in a direct appeal filed by the 

Commonwealth from an order of the Court of Common Pleas, relied upon 

Alleyne and struck down as unconstitutional the mandatory minimum 

sentencing scheme regarding drug-free school zones set forth in 18 Pa.C.S. 

§ 6317. In pertinent part, the Court in Hopkins refused to sever the 

violative provisions from the statute, which was the same determination 

reached by this Court in Newman.