Appeal from the Judgment of Sentence Entered November 2, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011953-2008
Joseph D. Seletyn, Esq.
BEFORE: BENDER, J., PANELLA, J., and FITZGERALD, J. [*]
Appellant, Herbert Munday, appeals from the judgment of sentence of an aggregate term of 5 – 10 years' incarceration imposed following his conviction for drug and firearm offenses. In light of the Supreme Court of the United States' recent holding in Alleyne v. United States, 133 S.Ct. 2151 (2013), Appellant argues the imposition of a mandatory minimum term of 5 years' incarceration pursuant to 42 Pa.C.S. § 9712.1 constitutes an illegal sentence because the facts necessary for imposition of the mandatory minimum were not established beyond a reasonable doubt. After careful review, we vacate the judgment of sentence and remand for resentencing.
The trial court summarized the facts underlying Appellant's conviction as follows:
Appellant's convictions stem from his involvement in drug sales occurring on May 28, 2008. After receiving information from a concerned resident that drugs were being sold out of a residence located at 2844 North Bailey Street, Police Officer Cain, Officer Campbell, Officer Cuffie[, ] and Officer McCook set up surveillance on the 2800 [b]lock of Bailey Street and arranged a controlled drug buy with a confidential informant (CI).
While on surveillance on May 20, 2008, the CI was searched for U.S. currency and contraband and then given a single (1) $20 bill of pre-recorded buy money. The CI knocked on the door of 2844 Bailey Street. The door was opened by a black male. The CI entered the property for approximately three minutes and returned to Officer Cuffie with two (2) orange packets containing an off-white chunky substance that was later tested positive for a cocaine base. A second surveillance was conducted on May 21, 2008 on the 2800 block of Bailey Street. The same CI conducted another controlled drug purchase from 2844 Bailey Street and returned to Officer Cuffie with two (2) orange-tinted packets [of] an off-white chunky substance which later tested positive for a cocaine base.
On May 28, 2008 a third surveillance and controlled drug buy was conducted. At [6:00 p.m., ] the CI was approached by … Appellant outside of 2844 Bailey Street. Officer Cain observed Appellant engage in conversation with the CI and accept the pre-recorded buy money. The Appellant entered the property and after approximately 2 minutes returned outside and handed the CI several small items. The CI retuned to Officer Campbell with two pink-tinted packets that tested positive for a cocaine base. On May 28, 2008 at 9:45 p.m.[, ] a search warrant was executed on the premises of 2844 Bailey Street. Officers recovered: one (1) black Ruger .44 gun, one (1) Springfield 30-06 rifle, one (1) MI rifle, a ballistic bulletproof vest, a letter addressed to the Appellant, $17 U.S. currency, and new and unused drug paraphernalia consisting of yellow, blue and orange packets. No drugs were found on [the] premises.
Trial Court Opinion, 8/2/12, at 1 – 2.
Following Appellant's arrest, the Commonwealth charged him by criminal information with: 1) delivery of a controlled substance (cocaine), 35 P.S. § 780-113(a)(30); 2) person not to possess firearms, 18 Pa.C.S. § 6105; 3) possessing instruments of crime, 18 Pa.C.S. § 907; and 4) possession of a controlled substance (cocaine), 35 P.S. § 780-113(a)(16). In the criminal information, the Commonwealth gave notification of its intent to pursue a mandatory minimum sentence under 42 Pa.C.S. § 9712.1 (sentences for certain drug offenses committed with firearms). Appellant's non-jury trial commenced and ended on July 13, 2010. The trial court convicted Appellant on all counts. Sentencing was postponed to allow for the preparation of a presentence investigation report.
The sentencing hearing was subsequently held on November 2, 2010. At count 1, the trial court imposed a 5-year mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712.1. At count 2, the trial court sentenced Appellant to a concurrent term of 1 – 2 years' incarceration. Likewise, at count 3, Appellant was sentenced to a concurrent term of 1 – 2 years' incarceration. Appellant's sentence at count 4 merged with his sentence at Count 1. Thus, the trial court sentenced Appellant to an aggregate term of 5 – 10 years' incarceration.
Appellant filed a timely notice of appeal on November 8, 2010. After Appellant filed a pro se docketing statement, we remanded, by order dated January 5, 2011, to determine if Appellant had been abandoned by trial counsel. On April 29, 2011, the trial court permitted Appellant's trial counsel to withdraw and then appointed Appellant's current counsel. The trial court filed its Pa.R.A.P. 1925(a) opinion on August 7, 2012, wherein it found Appellant had waived any claims for appellate review because current counsel had failed to file a timely Pa.R.A.P. 1925(b) concise statement. Appellant filed a motion with this Court seeking remand for the filing of a concise statement. By order dated November 7, 2012, we granted Appellant's motion, providing him with 21 days to file a concise statement and ordering the trial court to file a responsive opinion pursuant to Pa.R.A.P. 1925(a). Appellant complied by filing a concise statement with the trial court on November 28, 2012, however, by that time the trial court judge, The Honorable Willis W. Berry, had retired from the Court of Common Pleas. Consequently, the only trial court opinion of record in this matter was the one Judge Berry issued on August 7, 2012.
In Appellant's initial Brief, he presented a single issue for our review. Appellant claimed there was insufficient evidence to apply the mandatory minimum sentence imposed pursuant to 42 Pa.C.S. § 9712.1. During Appellant's oral argument, his counsel advised this Court of the recent United States Supreme Court decision in Alleyne, which had been decided only days prior to the submission of Appellant's Brief. Appellant requested, and we granted him, permission to file a Supplemental Brief to address the ...