Submitted May 26, 2015
[Copyrighted Material Omitted]
Appeal from the Judgment of Sentence of the Court of Common Pleas, Montgomery County, Criminal Division, No(s): CP-46-CR-0002451-2013. Before O'NEILL, J.
Keir N. Barros-Bradford, Public Defender, Norristown, for appellant.
Robert M. Falin, Assistant District Attorney and Daniel C. Bardo, Assistant District Attorney, Norristown, for Commonwealth, appellee.
BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.
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.
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 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, 186 L.Ed.2d 314 (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 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 18 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 ...