A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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The Superior Court of Pennsylvania has decided the appeal ofCOMMONWEALTH of Pennsylvania v. Caseen FENNELL, Appellant, No. 2610 EDA 2013, 2014 WL 6505791, 2014 PA Super 261 (Nov. 21, 2014), an appeal from a Judgment of Sentence of Judge Carolyn Nichols of the Court of Common Pleas of Philadelphia County, Criminal Division, CP–51–CR–0013779–2012. The Judges were LAZARUS, MUNDY and PLATT. Judge Mundy wrote the Opinion.

The Appellant was convicted of possession with intent to deliver a controlled substance. The Appellant stipulated to laboratory reports that suggested that the total weight of the heroin was 2.035 grams. As a result, the trial court concluded that the Commonwealth proved this element to the trial court beyond a reasonable doubt, as required by Alleyne andWinship. However, the trial court’s opinion reveals that this conclusion was solely premised on its belief that Section 7508(b), which permits the trial court to find the necessary elements by a preponderance of the evidence, was severable from the rest of the statute. This conclusion was not correct in view of Commonwealth v. Valentine, 2014 WL 4942256 (Pa.Super.2014) (confirming that Section 9712.1 as a whole is no longer workable without legislative guidance). Therefore, the Panel held that the trial court was not permitted to allow the jury to resolve the mandatory minimum questions absent legislative action as creating a new procedure in an effort to impose a mandatory minimum sentence is solely within the province of the legislature.

The judgment of sentence was vacated and the case was remanded for resentencing without the mandatory minimum.

Karl Baker of the Philadelphia Defender Association represented the Appellant.

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