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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
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J-S33043-22
v.
ASIIM BROOKS
Appellant
No. 333 EDA 2022
Appeal from the Judgment of Sentence Entered September 28, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002553-2019
EFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.:
FILED MARCH 23, 2023
Kasiim Brooks (“Brooks”) appeals from the judgment of sentence
imposed after a jury found him guilty of two counts possession of a controlled
substance with intent to deliver (“PWID”).1 We affirm the convictions but
vacate the judgment of sentence and remand for resentencing.
The trial court summarized the factual history as follows:
On February 8, 2019[,] at approximately 3:05 a.m., Officer
Kevin Gamber (Officer Gamber) was issuing parking tickets in the
area of the 7200 block of Lamport Road in Upper Darby[2] when
he noticed [Brooks] unconscious in a car parked in a marked fire
zone. The license plate came back as an Enterprise rental
car. . . . Officer Gamber attempted to wake [up Brooks].
Upon [Brooks] waking, he rolled the window down and
Officer Gamber requested [Brooks] exit the vehicle to ensure that
____________________________________________
1 See 35 P.S. § 780-113(a)(30).
Officer Gamber testified, and the trial court found, that the area is known as
a high crime area. See N.T. Suppression, 8/15/19, at 12-13; Trial Court
Opinion, 4/5/22, at 5.
K
B
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he was okay and to determine if he was intoxicated. During a pat
down search, Officer Gamber felt [two] cell phones in [Brooks’s]
pocket [and noticed that Brooks was wearing an expensive
watch]. . . .
* * * *
When Officer Gamber questioned [Brooks] on why he was
in the area so late at night[, Brooks] responded that he was on
his way to visit his grandmother and then fell asleep in his car,
but could not give his grandmother’s home address. Officer
Gamber questioned [Brooks] in order to determine his level of
intoxication, if any. Officer Gamber determined that [Brooks] was
not intoxicated. [Brooks] fully cooperated with Officer Gamber
during their interaction.
After backup officers arrived on the scene and [Brooks] was
identified, Officer Gamber asked for permission to search the
vehicle, which was granted. The three other officers who arrived
on the scene did not interact with [Brooks] at this time and none
of their vehicles had flashing lights. Officer Gamber [searched the
car] and located 98 baggies of controlled substances[, later
identified as fentanyl and cocaine,] in the inner compartment area
of the driver[’s] side door[, and the officer arrested Brooks.3] The
time between stop and arrest lasted about 10 to 15 minutes.
Trial Court Opinion, 4/5/22, at 2, 4 (citations to the record omitted).
Brooks filed a motion to suppress the evidence recovered from the car
asserting that he did not voluntarily consent to the search. The trial court
denied the suppression motion following a hearing, and Brooks proceeded to
____________________________________________
3 At trial, Officer Gamber testified that during his search he saw portions of a
plastic bag protruding from a gap in the “master switch assembly,” the panel
on the driver’s side door with controls for the power windows and locks. See
N.T., 7/23/21, at 35. When the officer lifted the master switch assembly
panel, he discovered the bag containing smaller bags of narcotics. See id.
From the car’s center console, the officer recovered baggies and rubber bands,
along with two bundles of cash totaling $1,080; and from the trunk, the officer
recovered a black duffle bag containing Brooks’s identification, clothes, a list
of phone numbers, and another bundle of cash totaling $1,027. See Trial
Court Opinion, 4/5/22, at 2.
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a jury trial. The jury found Brooks guilty of PWID (fentanyl) and PWID
(cocaine). On September 28, 2021, the trial court sentenced Brooks to
consecutive sentences of imprisonment of seventy-two to 114 months4 for
PWID (fentanyl) and thirty to sixty months for PWID (cocaine). Brooks filed
a timely post-sentence motion, which the trial court denied. Brooks timely
appealed, and both he and the trial court complied with Pa.R.A.P. 1925.
Brooks raises the following issues, which we have reordered for our
review:
1. Whether the trial court erred in denying the pretrial motion to
suppress physical evidence?
2. Whether the evidence was insufficient to sustain the verdict
because the evidence failed to establish con[s]tructive
possession of the unlawful narcotics secreted in the rental
vehicle?
3. Whether the court abused its discretion in sentencing [Brooks]
to an unduly harsh and excessive sentence?
Brooks’s Brief at 10 (reordered).
In his first issue, Brooks challenges the validity of his consent to the
search of the vehicle and claims that the trial court erred in denying his
suppression motion. On appeal from the denial of a suppression motion:
Our standard of review . . . is whether the record supports
the trial court’s factual findings and whether the legal conclusions
drawn therefrom are free from error. Our scope of review is
limited; we may consider only the evidence of the prosecution and
____________________________________________
4 As discussed further herein, the Commonwealth concedes that the trial court
imposed an illegal sentence for PWID (fentanyl) because the minimum
exceeded one-half of the maximum term of
See
Commonwealth’s Brief at 16-17 (discussing 42 Pa.C.S.A. § 9756(b)(1)).
imprisonment.
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for the defense as remains
so much of the evidence
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.
Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en
banc) (internal citation omitted). When examining a ruling on a pretrial
motion to suppress, appellate courts are limited to reviewing only the evidence
presented at the suppression hearing. See Commonwealth v. Bush, 166
A.3d 1278, 1281-82 (Pa. Super. 2017).
The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect private citizens from
unreasonable searches and seizures by government officials. See
Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000). “A search
conducted without a warrant is deemed to be unreasonable and therefore
constitutionally impermissible, unless an established exception applies. One
such exception is consent, voluntarily given.” See id. (internal citations
omitted). The Commonwealth bears the burden of proving, by a
preponderance of the evidence, that a challenged search was constitutional.
See Commonwealth v. McCleary, 193 A.3d 387, 390 (Pa. Super. 2018);
see also Pa.R.Crim.P. 581(H).
In consent cases, a court’s analysis begins with an examination of the
interaction between the defendant and the police. See Commonwealth v.
Mattis, 252 A.3d 650, 654 (Pa. Super. 2021). If the underlying interaction
between a defendant and a police officer is lawful, then a court analyzes the
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voluntariness of the defendant’s consent, that is, whether the consent “is the
product of an essentially free and unconstrained choice – not the result of
duress or coercion, express or implied, or a will overborne – under the totality
of the circumstances.” Commonwealth v. Valdivia, 195 A.3d 855, 862 (Pa.
2018) (internal citations and quotations omitted). However, if an unlawful
seizure precedes the consensual search, the exclusionary rule will require
suppression of evidence unless there is “a sufficient break in the causal
chain[,]” i.e., that the search did not exploit the prior illegality, and the
consent was voluntary. Strickler, 757 A.2d at 889 (internal citation omitted).
In examining the lawfulness of an interaction between police and an individual,
our Supreme Court has stated:
We have long recognized three types of interactions that
occur between law enforcement and private citizens. The first is
a mere encounter, sometimes referred to as a consensual
encounter, which does not require the officer to have any
suspicion that the citizen is or has been engaged in criminal
activity. This interaction also does not compel the citizen to stop
or respond to the officer. A mere encounter does not constitute a
seizure, as the citizen is free to choose whether to engage with
the officer and comply with any requests made or, conversely, to
ignore the officer and continue on his or her way. The second
type of interaction, an investigative detention, is a temporary
detention of a citizen. This interaction constitutes a seizure of a
person, and to be constitutionally valid police must have a
reasonable suspicion that criminal activity is afoot. The third, a
custodial detention, is the functional equivalent of an arrest and
must be supported by probable cause. A custodial detention also
constitutes a seizure.
No bright lines separate these types of encounters, but the
United States Supreme Court has established an objective test by
which courts may ascertain whether a seizure has occurred to
elevate the interaction beyond a mere encounter. The test, often
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referred to as the “free to leave test,” requires the court to
determine whether, taking into account all of the circumstances
surrounding the encounter, the police conduct would have
communicated to a reasonable person that he was not at liberty
to ignore the police presence and go about his business.
Whenever a police officer accosts an individual and restrains his
freedom to walk away, he has seized that person.
See Commonwealth v. Adams, 205 A.3d 1195, 1199-200 (Pa. 2019)
(internal citations, some quotations, and brackets omitted).
Additionally, where an officer completes an initial, lawful detention of an
individual and then asks for consent, a court must review all coercive aspects
of the subsequent interaction, including factors such as:
1) the presence or absence of police excesses; 2) whether there
was physical contact; 3) whether police directed the citizen's
movements; 4) police demeanor and manner of expression; 5)
the location of the interdiction; 6) the content of the questions
and statements; 7) the existence and character of the initial
investigative detention, including its degree of coerciveness; 8)
the degree to which the transition between the traffic
stop/investigative detention and the subsequent encounter can be
viewed as seamless, . . . thus suggesting to a citizen that his
movements may remain subject to police restraint; 9) the
presence of an express admonition to the effect that the citizen-
subject is free to depart is a potent, objective factor; and 10)
whether the citizen has been informed that he is not required to
consent to the search.
Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa. Super. 2008) (en banc)
(internal citations and quotations omitted);5 accord Commonwealth v.
Freeman, 757 A.2d 903, 906-07 (Pa. 2000).
____________________________________________
5 The above factors may overlap when considering whether a seizure occurred
and whether an individual voluntarily consented to a search, because both
issues require a consideration of the objective circumstances surrounding an
(Footnote Continued Next Page)
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On appeal, Brooks does not dispute that Officer Gamber had reasonable
basis to order him out of the car, frisk him, and determine whether he was
intoxicated. See Brooks’s Brief at 19-20. However, Brooks argues that once
the officer determined he was sober, the purpose of the initial detention was
complete, and he should have been allowed to leave. See id. at 20. The
continuing interaction with Officer Gamber, along with the arrival of the three
backup officers, Brooks asserts, amounted to an unlawful detention that
coerced his consent. See id. Brooks concludes that he was entitled to
suppression of the evidence found in the car, because “[c]onsent is not
voluntary where the suspect is surrounded by police and subject to accusatory
questioning.” See id. at 20.
The trial court explained its denial of Brooks’s suppression motion noting
that Officer Gamber had reasonable suspicion to believe that Brooks “was
involved in nefarious activities” when the officer frisked Brooks. Trial Court
Opinion, 4/5/22, at 5. However, the court concluded that Brooks “was free to
leave the scene” when Officer Gamber later requested consent to search the
car. See id.
We disagree with the trial court’s “free to leave” analysis. At the
suppression hearing, Officer Gamber testified that he woke Brooks up by
banging on the car window for approximately one minute, and then asked
____________________________________________
interaction between a police officer and the individual giving consent. See
Commonwealth v. Carmenates, 266 A.3d 1117, 1124 (Pa. Super. 2021)
(citing Strickler, 757 A.2d at 901-02).
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Brooks to exit the vehicle. Brooks complied, and the officer frisked him. See
N.T. Suppression Hearing, 8/15/19, at 12-13. After the frisk, Officer Gamber
began asking Brooks why he was in the area and Brooks replied that he was
visiting his grandmother. See id. at 13. The officer and Brooks then had an
exchange about the location of his grandmother’s home. Brooks was unable
to give the officer “a straight answer as to where it was or what he was doing
in the area.” Id. at 13-14. During these discussions, Officer Gamber
concluded that Brooks was not intoxicated. See id. at 20. Approximately five
minutes after Officer Gamber began interacting with Brooks, three backup
officers arrived in marked patrol cars. See id. at 14, 24. Officer Gamber
“identified”6 Brooks when the backup officers arrived and then asked him for
verbal consent to search the vehicle. Id. at 14. Officer Gamber testified that
when he requested Brooks’s consent to the search the car, Brooks was free to
leave; however, he did not expressly say so. See id. at 23-24.
Following our review of the record, we conclude that when Officer
Gamber requested consent to a search the interaction constituted a seizure
not a mere encounter. Brooks was clearly detained when the officer ordered
____________________________________________
6 The Commonwealth elicited no testimony about how Officer Gamber
identified Brooks, and at no point during the suppression hearing did Officer
Gamber state that he requested or obtained any paperwork or identification
cards from Brooks.
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him out of the car and frisked him.7 The Commonwealth failed to adduce any
evidence about when, during his continuing interactions with Brooks, Officer
Gamber concluded that Brooks was not impaired. Moreover, there was no
meaningful break or “endpoint” that separated the initial detention of Brooks
from the officer’s continued questioning of Brooks. See Freeman, 757 A.2d
at 906-07. The transitions from the frisk to the point at which Officer Gamber
believed Brooks was free to leave were relatively quick and seamless, such
that a reasonable person would not have felt “free to leave,” ignore Officer
Gamber’s questions, or simply disregard the request for a consensual search.
See Moyer, 954 A.2d at 665, 669. Thus, the trial court erred when it
determined that Brooks was “free to leave” when Officer Gamber asked for his
consent, and we conclude that Brooks was subject to an investigative
detention when the officer asked for his consent. See id.
We next consider whether the seizure was lawful. Because Brooks does
not assert that his interactions with Officer Gamber and the three backup
officers escalated to a functional equivalent of arrest, see Brooks’s Brief at 19
(arguing that Officer Gamber “unlawfully detained” Brooks), we assess
whether there was reasonable suspicion to support an investigative detention
when Brooks consented to the search.
____________________________________________
7 The trial court and the parties do not dispute that Officer Gamber had
detained Brooks during this phase of the interaction. See Trial Court Opinion,
4/5/22, at 5.
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In assessing whether a detaining officer has reasonable suspicion to
conduct an investigative detention, we employ the following standard:
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led him
reasonably to conclude, in light of his experience, that criminal
activity was afoot and that the person he stopped was involved in
that activity. Therefore, the fundamental inquiry of a reviewing
court must be an objective one, namely, whether the facts
available to the officer at the moment of intrusion warrant a
[person] of reasonable caution in the belief that the action taken
was appropriate.
Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa. Super. 2011).
Reasonable suspicion is a less stringent standard than probable cause
necessary to effectuate a warrantless arrest and depends on the information
possessed by police and its degree of reliability in the totality of the
circumstances. See Commonwealth v. Brown, 996 A.2d 473, 477 (Pa.
2010). The totality of the circumstances test requires consideration of all
information obtained by an officer during a lawful interaction. See In
Interest of A.A., 195 A.3d 896, 910 (Pa. 2018) (holding that information
learned during a valid traffic stop may be considered to determine whether an
officer had a lawful basis to initiate a second detention after the traffic stop),
abrogated on other grounds by Commonwealth v. Barr, 266 A.3d 25 (Pa.
2021).
Brooks, as noted above, argues that any basis for prolonging the initial
detention or initiating a subsequent detention had dissipated and that “the
power to detain [him] and the vehicle was exhausted” when Officer Gamber
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20.
determined he was not intoxicated. Brooks’s Brief at 20. Brooks baldly
asserts that “[a] perceived expensive watch, two cell phones, whether in a
high crime area or not, fall far short on the reasonable suspicion required to
warrant” extending or initiating a new investigative detention. See id. at 19-
The record here shows that Officer Gamber found Brooks sleeping in a
running rental car that was parked in a fire zone. See N.T. Suppression
Hearing, 8/15/19, at 7-8. After waking Brooks, frisking him, and feeling two
cellphones in Brooks’s pocket, Officer Gamber asked why Brooks was in the
area. See id. at 12-13. While Brooks indicated he was going to visit his
grandmother, he was not able to give his grandmother’s address or point out
her home. See id. at 13-14. During this interaction, the officer noticed
Brooks was wearing an expensive watch. See id. at 12. At the suppression
hearing, the officer summarized his suspicions as follows:
His story didn’t add up. It didn’t make sense what he was doing
in the area. He wasn’t -- gave me -- able to . . . give me a straight
answer to where his grandmother lived. I thought it was odd that
he would visit a grandparent or someone of that age at 3:00 in
the morning. It was a high crime area. He had multiple cell
phones on his person. He had a very expensive watch. It was a
rental car. All these details lead me to believe that he wasn’t
being truthful with me and there was something more to what was
going on than he was leading on.
N.T., Suppression Hearing, 8/15/19, at 16-17. Officer Gamber testified that
he only identified Brooks after the three backup officers arrived. See id. at
14.
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Following our review, we conclude that Brooks’s argument that Officer
Gamber lacked reasonable suspicion to detain him after determining he was
not intoxicated merits no relief. Brooks’s attempt to limit the scope of the
investigative detention and the facts obtained by Officer Gamber is too
narrow. Having come upon Brooks asleep in a running car, illegally parked in
a fire zone at 3:00 a.m. in a high crime area, Officer Gamber had an
objectively reasonable basis to briefly detain and question Brooks to confirm
his identity, determine why he was in the area and his possible travels, in
addition to his possible level of intoxication. Moreover, when assessing the
totality of the circumstances, this Court will not separate out the information
obtained during a lawful interaction when determining reasonable suspicion
continued to exist to continue or re-initiate an investigative detention. See
In Interest of A.A., 195 A.3d at 910. Thus, Brooks’s argument contravenes
the proper application of the totality of the circumstances test and fails to
demonstrate that Officer Gamber lacked reasonable suspicion to briefly detain
and question him about the reasons for his sleeping in his car.
Our final consideration in assessing the trial court’s suppression ruling
is whether Brooks’s consent was voluntary. See Valdivia, 195 A.3d at 862.
Although we have concluded that Brooks was subject to an investigatory
detention, we agree with the trial court that the Commonwealth established
that his consent was not the result of duress or coercion, express or implied,
under the totality of the circumstances. See Commonwealth v. Cartagena,
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63 A.3d 294, 301 (Pa. Super. 2013) (noting that a suppression court’s legal
conclusion are not binding on this Court and that this Court may affirm on any
ground). The record shows that Officer Gamber and the three backup officers
were at the scene in full uniform when Officer Gamber requested Brooks’s
consent to search the car. However, none of the officers had activated their
emergency lights. See N.T. Suppression, 8/15/19, at 14-16. The three
backup officers also remained behind Brooks’s car at a distance of about five
to six feet. See id. at 16. None of the backup officers interacted with Brooks
or had positioned themselves, or their vehicles, to block or physically control
Brooks’s movements. See id. at 28-29. Officer Gamber testified that
throughout the investigative detention of Brooks, their interactions were
cordial. See id. at 16. Officer Gamber testified that after the frisk, he did not
physically touch or control Brooks’s movements or restrain him in any manner.
See id. at 15-16, 24. Although the officer and Brooks were standing face to
face, at no time did Officer Gamber draw his firearm or threaten Brooks. See
id. at 16. According to Officer Gamber, Brooks did not hesitate in giving his
consent and affirmatively stated that the officer could “search the vehicle.”
Id.
Based on this record, we agree with the trial court’s conclusion that
Brooks’s consent was voluntary under the totality of the circumstances. See
Trial Court Opinion, 4/5/22, at 6. Brooks’s general assertion that his consent
was invalidated by the nature of his interactions with Officer Gamber and the
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mere presence of three other officers alone fails to convince this Court that
the overall nature of a lawful detention was so coercive that his will was
overborne.8 Rather, there was ample support for the court to conclude that
Brooks’s consent was the product of a free and unconstrained choice. Thus,
we affirm the order denying Brooks’s suppression motion.
In his next issue, Brooks claims that the evidence was insufficient to
prove his possession of the contraband recovered from the car. Our standard
of reviewing a challenge to the sufficiency of the evidence is as follows:
We assess the evidence and all reasonable inferences drawn
therefrom in the light most favorable to the verdict-winner. We
must determine whether there is sufficient evidence to enable the
fact-finder to have found every element of the crime beyond a
reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for that of the
factfinder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
____________________________________________
8 Brooks also emphasizes that Officer Gamber did not advise him that he was
free to leave and did not obtain a written consent to search. While such factors
may weigh heavily, Pennsylvania law does not regard any one factor to be
dispositive when considering the nature of interaction or the voluntariness of
consent. Cf. Commonwealth v. Cleckley, 738 A.2d 427, 433 (Pa. 1999)
(emphasizing that although knowledge of the right to refuse a search is a
factor, a court’s focus must be on the totality of the circumstances). We add
that this Court has determined that a consent to a search was voluntary under
circumstances that could be considered more coercive than those present
here. See e.g. Commonwealth v. Benitez, 218 A.3d 460, 483 (Pa. Super.
2016) (affirming the trial court’s finding that consent was voluntary despite
the presence of multiple police officers); Commonwealth v. Rosas, 875 A.2d
341, 345, 349-50 (Pa. Super. 2005) (holding that Rosa’s consent was
voluntary despite the presence of two state troopers and Rosa being in
handcuffs following a traffic stop).
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be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered.
Commonwealth v. Bowens, 265 A.3d 730, 740-41 (Pa. Super. 2021)
(internal citation omitted), appeal denied, 279 A.3d 508 (Pa. 2022)
A conviction for PWID requires the Commonwealth to prove that the
defendant “knowingly or intentionally possessed a controlled substance
without being properly registered to do so, with the intent to manufacture,
distribute, or deliver it.” Commonwealth v. Dix, 207 A.3d 383, 390 (Pa.
Super. 2019); see also 35 P.S. § 780–113(a)(30). Possession may be
established by the defendant’s actual or constructive possession of a
controlled substance. See Bowens, 265 A.3d at 741. To establish
constructive possession, the evidence must show a nexus between the
defendant and the item sufficient to infer that he had the power and intent to
exercise dominion and control over it. See id. “Dominion and control means
the defendant had the ability to reduce the item to actual possession
immediately, or was otherwise able to govern its use or disposition as if in
physical possession.” Id. (internal citation omitted).
Brooks asserts that the Commonwealth failed to establish possession
because he was not in actual possession of the “narcotics that were secreted
inside of the rental vehicle” and the evidence failed to establish constructive
possession. Brooks’s Brief at 29. He argues that the trial evidence established
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that he was fully cooperative with the police, which is “more consistent with
innocence rather than guilt” because it “belies common sense that a person
who knowingly was in possession of contraband would freely and willingly give
consent” for a search. Id. at 30.
Following our review, we discern no merit to Brooks’s argument. The
trial record established that Brooks was the sole occupant of a rental car and
fell asleep in the driver’s seat with the car still running. See N.T. Trial,
7/23/21, at 29-30. The drugs, while hidden, were located underneath the
master switch assembly on the armrest located on the driver’s side door. See
id. at 34-35. The master switch assembly was already loose and portions of
the plastic bag containing the drugs was visible. See id. at 34-36. Moreover,
as noted by the trial court other evidence linked Brooks to the car and the
trafficking of drugs, including the presence paraphernalia consistent with
packaging drugs, as well as large amounts of cash and a customer list located
in a duffel bag that also contained Brooks’s identification card. See Trial Court
Opinion, 4/5/22, at 9; see also N.T. Trial, 7/23/21, at 38-39, 55, 122, 124.
Thus, there was ample circumstantial evidence proving Brooks’s constructive
possession of the drugs found in the driver’s side arm rest. Brooks’s
arguments that no guilty person would have cooperated with the police or
consented to a search of the vehicle go to the weight rather than sufficiency
of the evidence. Thus, Brooks’s challenge to the sufficiency of the evidence
fails. See Dix, 207 A.3d at 390.
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Brooks’s third issue challenges the discretionary aspects of the trial
court’s sentence. Before addressing this issue, however, we consider the
Commonwealth’s suggestion that the trial court’s imposition of an illegal
sentence renders this issue moot. See Commonwealth’s Brief at 16-17.
This Court may address the legality of a sentence sua sponte and
remand the matter to the trial court even in the absence of the preservation
of the claim. See Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.3
(Pa. Super. 2009). Where the trial court imposes a sentence of total
confinement under the Sentencing Code, the court must state a maximum
sentence and a minimum sentence, which specifies the date on which the
defendant, once jailed, is eligible for parole. See Commonwealth v.
Basinger, 982 A.2d 121, 127 (Pa. Super. 2009). The Sentencing Code
mandates that the minimum sentence imposed “shall not exceed one-half of
the maximum sentence imposed.” 42 Pa.C.S.A. § 9756(b)(1). Absent a
contrary provision of law, the failure to comply with section 9756(b)(1) goes
to the legality of the sentence. See Mitchell, 986 A.2d at 1244.
In the case sub judice, the trial court imposed a minimum sentence of
seventy-two months of imprisonment for PWID (fentanyl), and a maximum
sentence of 114 months. Because the minimum sentence is more than one-
half of the maximum and no contrary provision of law applied, that sentence
violates section 9756(b)(1) and must be vacated. See Mitchell, 986 A.2d at
1244. Furthermore, because the trial court imposed consecutive sentences,
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our decision affects the overall sentencing scheme. Therefore, we vacate the
judgment of sentence and remand this matter for resentencing. Because we
vacate and remand due to the illegal sentence, we decline to address Brooks’s
discretionary aspect of the sentence claim. See Commonwealth v. Conley,
--- A.3d ---, ---, 2022 WL 17098985, at *7 & n.15 (Pa. Super. 2022).
In sum, we affirm Brooks’s convictions for PWID, but vacate the
judgment of sentence and remand this matter for resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge King joins in this decision.
Judge Kunselman concurs in the result.
udgment Entered.
oseph D. Seletyn, Esq.
Prothonotary
ate: 3/23/2023
J
J
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