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[U] Commonwealth v. Hovington

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
EDWARD R. HOVINGTON Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence November 19, 2012 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003948-2010; CP-15-CR-0003988-2011

BEFORE: GANTMAN, J., OLSON, J., and WECHT, J.

MEMORANDUM

GANTMAN, J.

Appellant, Edward R. Hovington, appeals from the judgment of sentence entered in the Chester County Court of Common Pleas, following his jury trial convictions for criminal solicitation, criminal use of a communication facility, possession of a controlled substance, possession of a controlled substance with intent to deliver ("PWID"), and possession of drug paraphernalia.[1] We vacate and remand for resentencing.

The relevant facts and procedural history of this case are as follows. Between 2009 and 2010, police investigated a cocaine distribution ring in West Chester, Pennsylvania. Wiretap surveillance revealed Appellant's involvement. On June 3, 2010, police executed a search warrant at Appellant's home, at which time police discovered, inter alia, cocaine, drug paraphernalia, and a handgun. The Commonwealth subsequently charged Appellant with various drug related offenses. Appellant filed a motion to suppress on April 5, 2011, and an amended motion to suppress on May 11, 2011. On May 13, 2011, the court held a suppression hearing. The court denied Appellant's motion on June 14, 2011.

On August 31, 2012, a jury convicted Appellant of PWID, simple possession, criminal solicitation to commit PWID, and related offenses. On November 19, 2012, the court imposed an aggregate sentence of six (6) to thirteen (13) years' imprisonment, plus three (3) years' probation. Appellant's aggregate sentence included a mandatory minimum on the PWID conviction of five (5) years' imprisonment pursuant to 42 Pa.C.S.A. § 9712.1 (mandating five year minimum sentence for defendant convicted of PWID when at time of offense, defendant was in physical possession or control of firearm, or firearm was in close proximity to controlled substance). On November 29, 2012, Appellant filed a motion for reconsideration. While his motion for reconsideration was pending, Appellant filed a notice of appeal.[2] The court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.

Appellant raises the following issues for our review:

DOES 42 PA.C.S.A. § 9712.1(A), WHICH PROVIDES FOR A MANDATORY MINIMUM SENTENCE IF A JUDGE FINDS TO A PREPONDERANCE OF THE EVIDENCE THAT [APPELLANT] WAS "IN PHYSICAL POSSESSION OR CONTROL OF A FIREARM" AT THE "TIME OF THE OFFENSE, " INFRINGE UPON [APPELLANT'S] SIXTH AMENDMENT RIGHT TO A JURY TRIAL?
IN THE ALTERNATIVE, DID THE TRIAL COURT IMPROPERLY APPLY THE MANDATORY MINIMUM SENTENCE PROVISION BECAUSE (A) [APPELLANT] DID NOT "COMMIT" A DRUG OFFENSE "WITH FIREARMS, " AND (B) HE HAD A CONSTITUTIONAL RIGHT TO POSSESS THE HANDGUN FOUND NEAR THE COCAINE?
WAS THE WARRANT FOR THE SEARCH OF [APPELLANT'S] RESIDENCE ISSUED ON THE BASIS OF A CONSTITUTIONALLY DEFECTIVE AFFIDAVIT, WHICH FAILED TO DESCRIBE A "NEXUS" BETWEEN [APPELLANT'S] HOME AND HIS DRUG DEALING ACTIVITIES?

(Appellant's Brief at 6).

For purposes of disposition, we combine Appellant's first and second issues on appeal. Appellant asserts the court imposed a mandatory minimum five (5) year sentence pursuant to 42 Pa.C.S.A. § 9712.1 for his PWID conviction. Appellant argues that, to impose the mandatory minimum the court determined by a preponderance of the evidence (per Section 9712.1(c)) Appellant had physical possession or control of a firearm at the time of his offenses. Appellant relies on the United States Supreme Court's recent decision in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), for the rule that imposition of the mandatory minimum based on a finding by the preponderance of the evidence was improper. Based on Alleyne, Appellant insists the jury, as fact-finder, was required to determine beyond a reasonable doubt whether Appellant physically possessed a firearm at the time of the offense.

In the alternative, Appellant explains police recovered a .40 caliber Glock handgun, which Appellant lawfully possessed, in an unlocked case in a dresser drawer during execution of the search warrant. Appellant contends police did not intercept any conversations implicating Appellant in which Appellant discussed the use of firearms. Appellant highlights he did not threaten police or any other person with use of the handgun or display the firearm before, during, or after execution of the search warrant. Appellant submits he lawfully possessed the firearm for self-protection, unrelated to his drug activity. Appellant maintains the Commonwealth presented no evidence that he committed PWID with firearms as required by Section 9712.1, governing "sentences for certain drug offenses committed with firearms."[3] Appellant concludes the court's imposition of a mandatory minimum sentence for his PWID conviction violated Alleyne, and this Court must vacate and remand for resentencing. We agree Appellant is entitled to relief on this issue.[4]

Our standard of review is as follows:

Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Issues relating to the legality of a sentence are questions of law, as are claims raising a court's interpretation of a statute. Our standard of review over such questions is de novo and our scope of review is plenary.

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012), appeal denied, 617 Pa. 629, 53 A.3d 756 (2012) (quoting Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)).

Section 9712.1 sets forth the mandatory minimum sentence imposed in this case, as follows:

§ 9712.1. Sentences for certain drug offenses committed with firearms
(a) Mandatory sentence.-Any person who is convicted of [PWID] 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.
(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.A. § 9712.1 (emphasis added) (internal footnote omitted).

After Appellant's sentencing, the United States Supreme Court announced its decision in Alleyne on June 17, 2013, expressly holding that any fact increasing the mandatory minimum sentence for a crime is considered an element of the crime to be submitted to the jury and found beyond a reasonable doubt. Alleyne, supra at __, 133 S.Ct. at 2155, 2163, 186 L.Ed.2d at __.

This Court recently addressed Alleyne in connection with Section 9712.1, when physical control or possession of a firearm is treated as a sentencing factor and not as an element of the crime. Commonwealth v. Munday, 78 A.3d 661 (Pa.Super. 2013). In Munday, following a bench trial, the court convicted the defendant of PWID and related offenses. At sentencing, the court imposed the mandatory minimum sentence per Section 9712.1. On appeal, Appellant challenged imposition of the mandatory minimum sentence. This Court explained:

Presuming the trial court followed the dictates of section 9712.1(c) (and we have no reason to presume otherwise), the determination of whether Appellant, at the time of the offense, was in physical possession or control of a firearm under Section 9712.1(c) was treated as a sentencing factor and not an element of the underlying drug offense. As such the trial court was only required to make such a finding based upon a preponderance of the evidence rather than based upon proof beyond reasonable doubt. … However, Alleyne undeniably establishes, despite our legislature's express statutory language to the contrary in this instance, that when a mandatory minimum sentence is under consideration based upon judicial fact[-]finding of a sentencing factor, that sentencing factor is, in reality, an element of a distinct and aggravated crime and, thus, requires it be proven beyond a reasonable doubt.

Id. at 666 (internal citations and quotations omitted). This Court held the imposition of the mandatory minimum sentence under Section 9712.1 was improper under Alleyne, and vacated and remanded for resentencing. Id. at 666-67.

Instantly, a jury convicted Appellant of PWID, simple possession, criminal solicitation to commit PWID, criminal use of a communication facility, and possession of drug paraphernalia. The jury made no determination on whether Appellant possessed or controlled a firearm at the time of his PWID offense, or whether a firearm was in close proximity to the drugs recovered. See 42 Pa.C.S.A. § 9712.1(a). Rather, the sentencing court decided this point as a sentencing factor, based on a preponderance of the evidence standard (see 42 Pa.C.S.A. § 9712.1(c)), and ultimately imposed the mandatory minimum sentence. Because Appellant's possession or control of a firearm or its close proximity to the drugs in question subjected Appellant to a mandatory minimum sentence, under Alleyne, the fact-finder should have made that finding beyond a reasonable doubt. See Alleyne, supra; Munday, supra. Thus, we must vacate Appellant's judgment of sentence and remand for resentencing. See id. Compare Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc) (holding imposition of mandatory minimum sentence was proper, where jury determined beyond reasonable doubt that appellant possessed firearms in connection with drugs).[5]

In his third issue on appeal, Appellant asserts the affidavit in support of the application for the search warrant for Appellant's residence failed to allege any "nexus" between the residence and drug dealing activities. Appellant avers the mere fact that he was suspected of dealing drugs was insufficient to call his residence under examination. Appellant contends the affidavit of probable cause showed Appellant was a drug user, not a dealer, so even if the affiant's opinion were acceptable, there was still no "nexus" between Appellant's alleged drug use and his residence, absent evidence of drug dealing. Appellant concludes the court erred in denying his suppression motion. We cannot agree.

"Our 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." Commonwealth v. Williams, 941 A.2d 14, 26 (Pa.Super. 2008) (en banc) (quoting Commonwealth v. Jones, 874 A.2d 108, 115 (Pa.Super. 2005)).

[W]e 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 findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Williams, supra at 27 (quoting Jones, supra). Nevertheless, "to preserve their claims for appellate review, appellants must comply whenever the trial court orders them to file a Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925. Any issues not raised in a [Rule] 1925(b) statement will be deemed waived." Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)).

Instantly, Appellant raised the following issues in his Rule 1925(b) statement related to his suppression motion: (1) "The Commonwealth did not have [r]easonable [s]uspicion to stop [Appellant] or [p]robable [c]ause to apply for a search warrant, and the Magistrate/Judge should not have authorized the aforementioned warrant"; (2) "If the Court finds that the warrant was properly granted, the [warrant] executed by [p]olice was overbroad"; and (3) "If the Court finds that the warrant was not overbroad, the warrant was facially deficient in failing to state sufficient probable cause." (Appellant's Rule 1925(b) statement, filed 1/22/13, at 1). On appeal, Appellant now complains the search warrant failed to describe a "nexus" between Appellant's residence and his drug use. Appellant did not present this claim in his concise statement. Therefore, it is waived on appeal. See Castillo, supra; Lord, supra.

Moreover, the court explained its rationale for denying Appellant's motion to suppress, as follows:

Examining the warrant, we concluded [at the suppression hearing] and affirm now that its four corners provided the issuing judge with a quilt of associated facts amounting to sufficient probable cause to have authorized the warrant's issuance authorizing the search of Appellant's residence. Examining the warrant we find that the initial investigation by police focused on one Vincent Marchant, who police identified as an individual deeply involved as a supplier in a cocaine distribution network in the Borough of West Chester. … The warrant identifies numerous incidents, including controlled buys, wiretaps and intercepted phone calls, authorized by warrants, corroborating Marchant's multiple sales of cocaine during an on-going period between April 12, 2009 and May 25, 2010. The thrust of Appellant's argument at [the] hearing on the Motion [to suppress] was that until page 9 of the Affidavit, Appellant's name is not identified in the facts detailed in those pages, and that the Affidavit's statement of supporting facts pertinent to him, which are stated at pages 12 through 14 under the heading entitled, "Investigative background on [Appellant], " are insufficient to connect him to participation with Marchant in the distribution of cocaine, or, indeed, to possessing or dealing in cocaine at all.2
2 Actually, on page 4 of the warrant, under the heading, "Subject of Investigation" the following paragraph appears: "This Affidavit is submitted to support an application for a search warrant on the residence [of Appellant]. Based on the facts outlined below, there is probable cause to conclude that [Appellant] is actively involved in the ongoing distribution of significant quantities of cocaine in Chester County. These facts also establish that Marchant is a source of supply for [Appellant]."
During [the] hearing on the Motion, Appellant introduced Exhibit D-1, which contains his interpretation of the intercepted phone and text messages exchanged by him with Mr. Marchant, and at their 4 meetings that occurred following those electronic contacts, which were observed by police during their surveillance of these activities, as more expansively reported on pages 12 through 14 of [Detective] McFarlane's affidavit. Appellant argued those contacts are consistent with innocent conduct, without indicia of incriminating criminal conduct, and are insufficient to support a reasonable belief that he was then and there engaged in criminal conduct or a criminal enterprise, especially where, as here, his name was not tied to incriminating drug activities described elsewhere in the affidavit. We do not agree. The affidavit identifies 19 Ingleside Drive, Thorndale, Chester County, Pennsylvania as Appellant's residence; described multiple phone calls between him and Marchant, the content and brevity of which leads to the reasonable conclusion that Appellant was then and there arranging to purchase/acquire cocaine from Marchant; details 4 meetings between Appellant and Marchant that were observed by police on March 21, 2010, May 3, 2010, May 6, 2010, and May 17, 2010 that were unmistakably drug purchase and sale transactions; evidence of the latter conclusion is cemented by an exchange of phone calls between Appellant and Marchant immediately preceding each of those meetings, legally intercepted by police on or about those same dates, during which the cryptic lingo of the drug trade was used by Appellant and Marchant in an attempt to disguise their intentions; and following Appellant's March 21, 2010 drug purchase from Marchant, Detective McFarlane observed Appellant leave Marchant's West Chester residence at 1143 hours, followed Appellant's motorcycle for a distance, and observed it parked at Appellant's residence at 19 Ingleside Drive, Thorndale, Pennsylvania some 27 minutes later at 1210 hours; on May 6, 2010, following a phone call from Appellant to Marchant at 2007 hours, that was lawfully intercepted by police, detectives on surveillance observed Appellant meet Marchant outside the Star Social Club in the Borough of West Chester at 2111 hours; and at 2132 hours that same night, observed Appellant park in his driveway and meet the driver of a Honda SUV, both of whom then entered Appellant's residence at 19 Ingleside Drive; on May 7, 2010[, Appellant] sent Marchant a text message asking him to "tuck that Mike Vick away" until tomorrow. The affidavit reveals that a "Mike Vick" is drug lingo for 7 grams of cocaine, and derives from Vick's Philadelphia Eagles football team jersey number, 7[;] on May 7, 2010, the affidavit states that [Jamy] Mickens called Marchant and asked for a "Mike Vick"; on May 8, 2010[, ] Mickens called Marchant and asked that he call a supplier for the purpose of their buying a "point" (125 grams of cocaine); on May 16, 2010, Marchant and Mickens exchanged messages arranging for Mickens' purchase of cocaine in Delaware, which was consummated the following day; on May 16 and 17, 2010, Appellant and Marchant exchanged intercepted phone and text messages that, in context with other facts recited in the affidavit, were clearly preparatory to a drug purchase by Appellant from Marchant from the supply acquired by Mickens; and, on May 17, 2010, police observed a meeting between Marchant and Mickens in West Chester, following which Marchant alerted his contacts, including Appellant, that his drug supply had arrived; on May 19, 2010, Appellant called Marchant, immediately following which they met at Marchant's West Chester residence. We concluded then, and affirm now, that an integrated reading of the affidavit, which includes the unmistakable facts supporting the conclusion that Marchant is a drug dealer, possessed of a network of associates, among whom it is reasonably concluded that Appellant is included, provided probable cause to conclude that Appellant was using and dealing in cocaine. As such, its allegations provided probable cause for the issuance of the search warrant of Appellant's residence.
… Based upon the totality of the evidence pertaining to Appellant and his contacts with Marchant, Detective McFarlane had reasonable basis and probable cause to believe that Appellant was engaged as a drug dealer from his residence, thereby warranting its search. Appellant also argued that the Affidavit does not reflect that any illegality took place at his residence. We do not agree. In narcotics cases, "evidence…is likely to be found where the [drug] dealers reside." United States v. Burton, 288 F.3d 91, [103] (3d Cir. 2002).

(Trial Court Opinion, filed April 12, 2013, at 8-13) (some internal citations omitted). The record supports the court's analysis. See Williams, supra. Therefore, even if properly preserved, Appellant's suppression issue would merit no relief. Accordingly, we affirm Appellant's convictions but, based on our disposition of Appellant's sentencing issue, we vacate the judgment of sentence and remand for resentencing without imposition of the mandatory minimum sentence.

Judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished.

CONCURRING MEMORANDUM

WECHT, J.

I join the result reached by the learned Majority. However, I would do so on different grounds. I would strike down 42 Pa.C.S. § 9712.1(c) as unconstitutional pursuant to the United States Supreme Court's recent decision in Alleyne v. United States, 133 S.Ct. 2151 (2013).

Rather than ruling upon the constitutionality of 42 Pa.C.S. § 9712.1(c), the Majority, relying upon Alleyne and our recent decision in Commonwealth v. Munday, 78 A.3d 661 (Pa.Super. 2013), holds only that Appellant's sentence was illegal because the sentencing court found by a preponderance of the evidence that Appellant possessed or controlled a firearm that was located in close proximity to the drugs for which Appellant was convicted. See Maj. Mem. at 7. The Majority properly concludes that the fact-finder, a jury in this case, was required to make that factual finding beyond a reasonable doubt. There is no question that Alleyne requires this result.

I recognize the well-entrenched legal principle, which the Majority cites, that courts should not reach constitutional questions if a non-constitutional ground for the decision is available. Maj. Mem. at 4 n.3 (citing Commonwealth v. Levanduski, 907 A.2d 3, 14 (Pa.Super. 2006) (en banc)). I support the Majority's restraint in principle. However, Alleyne is based upon the Sixth Amendment's fundamental right to a jury trial, and Munday is based upon Alleyne. The Majority's decision, in turn, relies upon both of these decisions. Thus, albeit without saying so, the Majority has based its decision upon constitutional principles that I believe require us to strike down subsection (c) entirely.

By declining to find the statute facially unconstitutional, we leave the bench and bar in confusion. Alleyne very clearly renders the statute unconstitutional. The Majority finds Appellant's sentence to be illegal solely because the trial court made the necessary finding to trigger the mandatory minimum sentence by a preponderance of the evidence, when that trigger should have been found by the jury beyond a reasonable doubt. This approach mistakenly implies that the sentence would have been legal had the question been submitted to the jury and the correct burden of proof applied.

This implication is incorrect, because the statute alone authorizes the imposition of the mandatory minimum sentence. Subsection (c) states as follows:

(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 the 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). The statute authorizes a mandatory minimum sentence only if the unconstitutional procedure utilized in this case is followed: only if the court finds by a preponderance of the evidence that the relevant criteria have been satisfied may it impose the mandatory minimum sentence at issue. In failing to mention this critical problem, the Majority leaves the bench and bar in the dark in drug cases implicating mandatory minimum sentences.

Nearly every element of subsection (c) runs afoul of the constitutionally-based holding in Alleyne. I respectfully believe that reaching the constitutional question in this case not only is justified, but is necessary.


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