Com. v. Reese, B.

• Court: Superior Court of Pennsylvania
• Decided: June 23, 2015
• Docket: 52 EDA 2013
• Status: Unpublished

Opinion

J-E01004-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BRUCE M. REESE, : : Appellant : No. 52 EDA 2013

Appeal from the Judgment of Sentence November 20, 2012, Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0013539-2011

BEFORE: BOWES, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON, WECHT, STABILE and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.: FILED JUNE 23, 2015

Bruce M. Reese (“Reese”) appeals from the November 20, 2012

judgment of sentence entered by the Philadelphia County Court of Common

Pleas following his convictions of possessing an instrument of crime, criminal

conspiracy, and four counts of robbery.1 Upon review, we conclude that the

trial court properly denied Reese’s motion to suppress and that Reese’s

sufficiency claim does not entitle him to relief. Because we conclude that

Reese’s sentence is illegal, however, we vacate the judgment of sentence

and remand for resentencing.

In the early morning hours of November 12, 2011, Reese and an

unidentified man robbed four men at gunpoint near the corner of 57 th Street

and Belmar Terrace in Philadelphia outside of the home of Keith Nazario

1 18 Pa.C.S.A. §§ 907(a), 903(c), 3701(a)(1)(ii). J-E01004-15

(“Nazario”), one of the victims. Reese was holding the gun, which the

victims described as black. One of the victims, Darren Harrison (“Harrison”),

had “seen [Reese] around the area,” but did not know him. N.T., 10/2/12,

at 52. As Reese was leaving the scene, Nazario recognized him as the

cousin of one of Nazario’s friends, Kyle Bentley (“Bentley”), and called after

Reese. Harrison indicated that he knew Bentley as well. Upon hearing this,

Reese acknowledged that he was Bentley’s cousin and attempted to get the

victims’ money back from his coconspirator. The coconspirator refused to

return the money. Reese then provided his phone number to the victims

and assured them he would return their money the following day. He then

ran to catch up with his coconspirator. None of the victims wrote down the

phone number.

Victim Bryan Shoecraft (“Shoecraft”) called the police that night to

report the robbery; Harrison telephoned the police the following day.

Harrison brought the fourth victim, Ian White (“White”), to the police station

with him, and both readily identified Reese in a photo array as one of the

perpetrators of the robbery. Shoecraft likewise immediately identified Reese

in the photo array when police presented it to him the following day.2

Police requested and obtained a warrant for firearms and ballistic

evidence, Shoecraft’s debit card, proof of residence, and any other items of

2 Nazario did not provide a statement to the police and he did not testify at trial.

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evidentiary value at what police believed to be Reese’s address – 413 North

Edgewood Street in West Philadelphia. Police executed the warrant on

November 14, 2011 at 7:05 a.m. and located Reese inside the residence,

lying on a sofa. Police retrieved a black handgun3 from the cushion

underneath where Reese was laying and proof of residence inside the house,

not on Reese’s person.

On February 1, 2012, Reese filed a pretrial motion seeking, inter alia,

suppression of the evidence found during the execution of the search

warrant. At a hearing on the motion on October 2, 2012, Reese presented

two arguments in support of suppression: (1) the affidavit of probable cause

failed to provide a sufficient basis to believe the items sought would be

found at Reese’s residence, and (2) the police misrepresented to the

magistrate that the location to be searched was Reese’s last known address.

The trial court denied the motion. On October 5, 2012, a jury convicted

Reese of the aforementioned crimes. The trial court sentenced him on

November 20, 2012 to an aggregate term of fifteen to thirty years of

incarceration.

Reese did not file any post-sentence motions, but filed a timely notice

of appeal on December 10, 2012. He complied with the trial court’s order

for the filing of a concise statement of errors complained of on appeal

3 Police subsequently learned that the gun recovered during the search was not real.

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pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (“1925(b)

statement”). Thereafter, the trial court issued a responsive opinion pursuant

to Pennsylvania Rule of Appellate Procedure 1925(a).

On appeal before a three-judge panel of this Court, Reese raised the

following issues for our review:

1. Did the trial court err by denying [Reese]’s pre-trial motion to supress [sic] evidence based on a lack of probable cause where the affidavit of probable cause for the issuance of the warrant did not provide sufficient information for the issuing court to make a determination of probable cause?

2. Was the evidence insuficient [sic] to establish a reliable identification of [Reese] as being involved in the commission of the crimes he was convicted of committing?

Reese’s Brief at 2. On August 9, 2014, the panel vacated Reese’s judgment

of sentence and remanded the case for a new trial. The panel unanimously

agreed that there was sufficient evidence to support Reese’s convictions.

The majority determined, however, that the trial court erred by denying

Reese’s motion to suppress:

[T]here are no factual averments in the affidavit [of probable cause] that establish any “nexus” between Reese’s home and the instant crime. Within its four corners, the affidavit establishes only probable cause to believe that Reese committed the robbery and lived at the subject residence.[] … “[T]he lack of a substantial nexus between the street crime and the premises to be searched renders the warrant facially invalid.” [Commonwealth v.] Way, 492 A.2d [1151,] 1154 [(Pa. Super. 1985)]; see

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[Commonwealth v.] Kline, 335 A.2d [361,] 364 [(Pa. Super. 1975)].

Commonwealth v. Reese, 52 EDA 2013, 18-19 (Pa. Super. Aug. 6, 2014)

(unpublished memorandum). The dissent disagreed with the decision to

grant Reese a new trial. First, the dissent observed that Reese’s sole

argument in support of his suppression claim was that “there was insufficient

evidence to show that [he] resided at the residence for which the [search]

warrant was issued because the magistrate was not informed, and the

affirming detective did not so inform him, that [Reese] had a more recent

address of record.” Id. at Diss. 1 (quoting Reese’s Brief at 9-10). As Reese

abandoned any other argument relating to the denial of suppression, the

dissent concluded that it was not permissible to reverse the trial court’s

decision on that basis. Furthermore, even if Reese had presented this

argument on appeal, the dissent disagreed that it entitled him to relief

pursuant to this Court’s holding in Commonwealth v. Hutchinson, 434

A.2d 720 (Pa. Super. 1981).

On August 8, 2014, the trial court filed a request for publication. On

August 14, 2014, the Commonwealth filed an application for reconsideration

or reargument en banc, based upon “the majority’s sua sponte grant of relief

on a theory that [Reese] abandoned on appeal and that contradicts this

Court’s binding precedents.” Application for Reconsideration or Reargument

En Banc, 8/14/14, at 7. On September 5, 2014, the panel denied the trial

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court’s request for publication. On October 3, 2014, the full court granted

the Commonwealth’s request for reargument en banc. In granting the

request we ordered that Reese file his original brief with a supplemental

brief, or a substituted brief, addressing the following questions: “(1)

whether the affidavit of probable cause properly established that evidence of

the robbery would be found in [Reese]’s home; and (2) whether that claim

was and is properly preserved for review by this Court.” Order, 10/3/14.

Reese complied by filing his original brief along with a supplemental brief

addressing the requested issues. The Commonwealth timely filed its original

responsive brief as well as a responsive supplemental brief.

We begin by addressing whether Reese preserved the issue concerning

the absence of probable cause that the evidence sought would be found in

Reese’s home. Reese contends he properly preserved the issue for appellate

review by including it in his suppression motion and his 1925(b) statement.

Reese’s Supplemental Brief at 4-5. What Reese ignores, however, and our

review of his original brief confirms, is that he failed to include any argument

in his appellate brief in support of this claim.

Generally speaking, there are several layers of preservation required

for an issue in a criminal case to be appropriately subject to appellate

review. The issue must be raised before the trial court. See Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”). If the trial court issues an order

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requiring the filing of a 1925(b) statement, any issue to be raised on appeal

must be specifically included therein. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues

not included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.”); Commonwealth v.

Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (“A [1925(b)] statement

which is too vague to allow the court to identify the issues raised on appeal

is the functional equivalent of no [1925(b)] statement at all.”). The issue

must also be included in the statement of questions involved section of the

appellate brief. See Pa.R.A.P. 2116(a) (“No question will be considered

unless it is stated in the statement of questions involved or is fairly

suggested thereby.”). Lastly, for an issue to be reviewable on appeal, the

appellant must include a properly developed argument in support of the

issue in the argument section of his or her appellate brief. See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.”); Bolick v.

Commonwealth, 69 A.3d 1267, 1269 (Pa. Super. 2013) (finding an issue

raised on appeal waived because the appellant failed to present any

argument), appeal denied, 84 A.3d 1061 (Pa. 2014); see also Pa.R.A.P.

2119(a) (“The argument shall be divided into as many parts as there are

questions to be argued; and shall have at the head of each part--in

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distinctive type or in type distinctively displayed--the particular point treated

therein, followed by such discussion and citation of authorities as are

deemed pertinent.”); Pa.R.A.P. 2101 (appellate briefs must conform to the

Rules of Appellate Procedure; failure to do so may result in suppression of

the brief or the appeal being dismissed or quashed).

Both the trial court and the Commonwealth contend that Reese waived

the issue by failing to specifically include it in his 1925(b) statement. See

Trial Court Opinion, 7/31/13, at 3-5 (asserting that Reese’s allegation of

error regarding suppression was “vague in that it fails to specify what

information was lacking rendering the search warrant invalid,” and thus

waived); Commonwealth’s Supplemental Brief at 8-9 (same). In his 1925(b)

statement, Reese states that the trial court erred by failing to grant his

suppression motion as “the affidavit of probable cause for the issuance of

the warrant did not provide sufficient information for the issuing court to

make a determination of probable cause[.]” 1925(b) Statement, 5/14/13, ¶

1.

We agree that the issue as framed is vague and is therefore waived.

See Hansley, 24 A.3d at 415. There are numerous bases upon which a

defendant can challenge a finding of probable cause for the issuance of a

warrant, two of which Reese raised before the trial court at the suppression

hearing. Reese failed to provide any indication of what “information” was

lacking such that the affidavit did not establish probable cause to search.

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That the trial court addressed the argument Reese ultimately made on

appeal does not negate a finding of waiver. Commonwealth v. Heggins,

809 A.2d 908, 911 (2002) (“Even if the trial court correctly guesses the

issues Appellant raises on appeal and writes an opinion pursuant to that

supposition, the issue is still waived.”), appeal denied, 827 A.2d 430 (Pa.

2003).

Furthermore, our review of Reese’s initial brief filed in this Court

reveals that he also waived the issue by failing to include any argument in

support of the question of whether the affidavit of probable cause sufficiently

established that evidence of the robbery would be located in Reese’s home.

Rather, his argument regarding the absence of probable cause to support

the issuance of the warrant was limited to the affiant’s failure to inform the

magistrate that “[Reese] had a more recent address of record” and as a

result, “the affidavit of probable cause for the issuance of a warrant for the

search of the Edgewood residence contained misstatements of fact that were

both deliberate and material for the determination of probable cause.”

Reese’s Brief at 9-12. Although Reese raised before the trial court the

argument as to whether the police established that the contraband would be

found in his home, he abandoned this alternative argument before this Court

by failing to include any argument in support of it in his appellate brief,

resulting in its waiver on appeal. See Johnson, 985 A.2d at 924; Bolick,

69 A.3d at 1269; Pa.R.A.P. 2119(a); Pa.R.A.P. 2101.

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Even if not waived, we would find no error in the trial court’s denial of

suppression on this basis. We review the trial court’s denial of a motion to

suppress to determine whether the record supports the trial court’s factual

findings and whether it reached its legal conclusions in error.

Commonwealth v. Enick, 70 A.3d 843, 845 (Pa. Super. 2013), appeal

denied, 85 A.3d 482 (Pa. 2014). “If the record supports the trial court’s

findings of fact, we will reverse only if the trial court’s legal conclusions are

incorrect.” Id. (citation omitted).

The issuance of a constitutionally valid search warrant requires that

police provide the issuing authority with sufficient information to persuade a

reasonable person that there is probable cause to conduct a search based

upon information that is viewed in a common sense manner.

Commonwealth v. Housman, 986 A.2d 822, 843 (Pa. 2009). The issuing

authority must determine whether, given the totality of the circumstances

presented, there is a fair probability that evidence of a crime or contraband

will be found in a particular location. Id. However, “probable cause to

believe that a man has committed a crime on the street does not necessarily

give rise to probable cause to search his home.” Commonwealth v.

Wallace, 42 A.3d 1040, 1049-50 (Pa. 2012) (citing Commonwealth v.

Heyward, 375 A.2d 191, 192 (Pa. Super. 1977); Commonwealth v. Kline,

335 A.2d 361, 364 (Pa. Super. 1975)). There must be a nexus between the

suspect’s home and the criminal activity or contraband sought in order to

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permit the search thereof. Id. The task of the reviewing court is to ensure

that the issuing authority had a substantial basis to conclude that probable

cause existed. Housman, 986 A.2d at 843.

In finding that the warrant sufficiently established that the contraband

in question would be located in Reese’s home, the trial court found our

decision in Commonwealth v. Hutchinson controlling. Trial Court Opinion,

7/31/13, at 13-14. In Hutchinson, at approximately 1:30 p.m., Hutchinson

committed a gunpoint robbery of four people at a medical center.

Hutchinson, 434 A.2d at 742. He stole credit cards, several carwash slips

and $800 in cash. He was wearing a blue checked shirt at the time of the

robbery. At approximately 6:00 p.m. that same day, two of the victims

identified Hutchinson in a photograph as the perpetrator. Police sought and

were granted a search warrant for Hutchinson’s home. Upon executing the

warrant, police recovered, inter alia, “a blue checked shirt matching that

worn by the perpetrator and a .22 caliber gas pellet gun.” Id.

On appeal, Hutchinson challenged, in relevant part, “that the shirt and

gun were inadmissible because the search warrant affidavit failed to aver

that evidence could be found in his home and therefore did not establish

probable cause to justify the search.” Id. at 742-43. This Court disagreed,

stating:

In United States v. Ventresca, 380 U.S. 102, 108, [] (1965), the United States Supreme Court held that [] applications [for search warrants] should

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be read in a “commonsense and reasonable fashion” rather than with “(a) grudging and negative attitude ....” We agree with the lower court that the facts contained in the present affidavit formed a sufficient basis for the issuing authority to conclude that evidence from the robbery would be found in appellant’s home. The affidavit stated that appellant had been positively identified by two of the victims. See Commonwealth v. Garnett, [] 326 A.2d 335, 337 ([Pa.] 1974); Commonwealth v. Mamon, [] 297 A.2d 471, 476 ([Pa.] 1972). Moreover, the items seized, a shirt and a gun, were each of a type reasonably likely to be found in the perpetrator’s home, especially given the short period of time between the commission of the crimes and the application for the search warrant. In similar circumstances, courts have held it reasonable for an issuing authority to conclude that evidence would be found in the homes of suspects. See United States v. Richard, 535 F.2d 246 (3d Cir. 1976) (evidence seized pursuant to a search warrant admissible because the issuing magistrate could reasonably infer that evidence would be found at defendant’s home from facts that he had been identified as the suspect, the premises to be searched were his home, the affidavit had been made shortly after commission of the crime, and likelihood that he would discard his clothing at home); United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970) (reasonable to infer that suspect would hide stolen mail in his home from the value of the mail and his opportunity to conceal it). See also United States v. Picariello, 568 F.2d 222 (1st Cir. 1978) (magistrate may infer presence of evidence at home of suspect from type of crime committed, nature of evidence sought, and opportunity for concealment); United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976) (same). Cf. United States v. Charest, 602 F.2d 1015 (1st Cir. 1979) (unreasonable to infer that murder weapon would be found in suspect’s home eighteen days after crime); Commonwealth v. Heyward, [] 375 A.2d 191 ([Pa. Super.] 1977) (unreasonable to infer that stolen automobile title certificates would be

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located in suspect’s home more than two years after theft). Consequently, the lower court properly concluded that the search warrant was supported by probable cause and that the shirt and gun were admissible.

Hutchinson, 434 A.2d at 743.

In his supplemental brief, Reese attempts to differentiate this case

from Hutchinson based upon the length of time between the robbery and

the application for the search warrant and the fact that the victims did not

uniformly identify what Reese was wearing at the time of the robbery.

Reese’s Supplemental Brief at 6-7. We have thoroughly reviewed

Hutchinson, however, and have found nothing that indicates when the

police obtained and executed the search warrant for Hutchinson’s home in

that case. As stated above, the Hutchinson Court simply stated that there

was a “short period of time between the commission of the crimes and the

application for the search warrant,” without specifying precisely when the

police obtained the search warrant for Hutchinson’s home. Hutchinson,

434 A.2d at 743. In the case at bar, the police obtained the prosecutor’s

approval to apply for the warrant at 2:55 a.m. on November 14, 2011 and

executed it at 7:05 a.m. that same day. Search Warrant, 11/14/11. This

was only two days after the robbery occurred. Pursuant to Hutchinson and

the case law upon which it relied, we conclude that, as in Hutchinson, the

police obtained and executed the search warrant in question within a short

period of time of the robbery.

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Furthermore, the fact that the victims in the case at bar did not

uniformly identify what Reese was wearing at the time of the robbery is

inconsequential.4 The police did not seek to recover any specific article of

clothing in the search warrant. This argument bears no relation to the

holding in Hutchinson, and thus does not entitle Reese to relief.

The affidavit of probable cause sets forth the allegations related to the

robbery and states that three of the victims readily identified Reese as the

gunman, one of whom was previously familiar with Reese. Continuation of

Probable Cause for Search Warrant # 161856, 11/14/11, at 1. As discussed

in greater detail infra, the police had probable cause to believe that Reese

resided at 413 North Edgewood Street and included sufficient information in

the affidavit supporting such a finding. Id. Further, in the affidavit, police

requested permission to search for and seize the following items from 413

North Edgewood Street: “firearms or ballistic evidence, [Shoecraft’s] Wells

Fargo debit card, proof of residence and any other item of evidentiary

value.” Continuation of Probable Cause for Search Warrant # 161856,

11/14/11, at 1. Given the nature of these specified items, they would

commonly be found in a person’s home. See Hutchinson, 434 A.2d at 743.

The affidavit of probable caused contained sufficient facts to permit the

4 The record reflects that Shoecraft told police that Reese was wearing a green vest at the time of the robbery; Harrison stated Reese was wearing a “black hoody”; and White described Reese as wearing a “white dress thing over his clothing.” Commonwealth’s Exhibits C4, C6, C8.

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magistrate to find there was a fair probability that evidence related to the

robberies would be found at the North Edgewood Street address.

Housman, 986 A.2d at 843; Wallace, 42 A.3d at 1050. As such, the trial

court did not err by denying suppression on this basis.

We now turn to the suppression issue Reese originally raised and

adequately preserved for our review. Reese asserts that the trial court erred

by denying suppression, as there was “insufficient evidence to show

probable cause that [Reese] resided at the residence for which the warrant

was issued” because of the affiant’s failure to inform the magistrate that

Reese “had a more recent address of record.” Reese’s Brief at 9-10. Reese

contends that this constituted a “deliberate and material” misstatement of

fact that was necessary for the determination of probable cause. Id. at 10;

see Commonwealth v. Jones, 942 A.2d 903, 909 (Pa. Super. 2008) (“[I]f

a search warrant is based on an affidavit containing deliberate or knowing

misstatements of material fact, the search warrant is invalid.”) (citation

omitted), appeal denied, 956 A.2d 433 (Pa. 2008).

The trial court found that this claim did not warrant suppression. The

trial court agreed that “[t]he address of the premises to be searched is

certainly material to the affidavit of probable cause,” but found “that the

affiant did not misstate why he felt [Reese] resided at the address to be

searched.” Trial Court Opinion, 7/31/13, at 14. The trial court relied upon

the following in support of its conclusion:

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[The affiant] recited in detail “the facts and circumstances” that were within his knowledge that led him to request a warrant to search 413 N. Edgewood Street. The affidavit stated that of [Reese]’s eight arrests, six listed 413 N. Edgewood as his address. It also contained the assertion that one of the complainants had ascertained, through a cousin, that [Reese] was then currently residing in “West Philly” which was consistent with the 413 N. Edgewood address. In short, there were sufficient facts set forth in the affidavit of probable cause “to warrant a man of reasonable caution” to conclude that [Reese] resided at 413 N. Edgewood.

At the suppression hearing, Detective [Frank] Mullen’s testimony corroborated the statements presented in the affidavit of probable cause as to the location of [Reese]’s residence. He testified that he reviewed [Reese]’s criminal history, prison release records, DMV records and “LexisNexis” as well as speaking with one of the victims. (N.T.[,] 10/02/12[, at] 10-15, 21) He testified that in six of [Reese]’s eight arrests 413 North Edgewood was listed as his address. Also[,] [Reese]’s records relating to his release from prison on April 27, 2011, six months prior to his arrest, listed his address as North Edgewood Street. On cross examination, Detective Mullen testified that at the time he conducted his search for [Reese]’s address he did not have access to the release records maintained by the Pennsylvania Board of Probation and Parole which indicated that [Reese] had been paroled to 5821 Belmar Terrace in the City of Philadelphia. ([Id. at] 19, 20, 25-15, 21)

It is not inconceivable that [Reese] would have two addresses. However, examining the “totality of the circumstances” the affidavit of probable cause contained sufficient facts to justify the search of the premises 413 N. Edgewood Street.

Id. at 14-15.

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Our review of the record comports with the above summary provided

by the trial court. Although the Department of Motor Vehicles had Reese’s

address listed as 5821 Belmar Terrace, the information available to the

police suggested that it was more likely that he resided at the North

Edgewood Street residence, particularly in light of the officers’ reasonable

belief that Reese was released from prison to the North Edgewood Street

address. See generally N.T., 10/2/12, at 10-25. As stated above,

probable cause requires “a fair probability,” not absolute certainty, that the

items or persons sought are located in the location to be searched.

Housman, 986 A.2d at 843. As such, no relief is due.

Reese also raises a claim on appeal that the evidence was insufficient

to support his convictions. Reese’s Brief at 12-14. Specifically, Reese

asserts that the victims’ identifications of him lacked credibility as none of

the victims who testified actually knew Reese prior to the robbery, and yet

Harrison inexplicably identified him to the police by name, which resulted in

the photo array containing Reese’s picture. Id. at 13. Furthermore, Reese

states that the details of the robbery differed with each victim, including the

clothing worn by the perpetrator. Id. at 13-14.

As the trial court recognizes, these arguments challenge the weight of

the evidence, not its sufficiency. Trial Court Opinion, 7/31/13, at 15-16;

see Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014) (“An

argument regarding the credibility of a witness’[] testimony goes to the

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weight of the evidence, not the sufficiency of the evidence.”);

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(“variances in testimony go to the credibility of the witnesses and not the

sufficiency of the evidence”) (citations omitted). It is well-settled law that

an appellant must preserve a challenge to the weight of the evidence before

the trial court either at sentencing or in a post-sentence motion.

Pa.R.Crim.P. 607(A); Commonwealth v. Thompson, 93 A.3d 478, 490

(Pa. Super. 2014). Reese failed to do so, and as such, this argument is

waived on appeal. See Thompson, 93 A.3d at 491.

Although Reese raised no further issues for our review on appeal, we

nonetheless conclude that we must remand the case for resentencing, as

Reese’s sentence is illegal. See Commonwealth v. Watley, 81 A.3d 108,

118 (2013) (en banc) (“Legality of sentence questions are not waivable and

may be raised sua sponte by this Court.”), appeal denied, 95 A.3d 277 (Pa.

2014). The record reflects that the trial court sentenced Reese to an

aggregate term of fifteen to thirty years of incarceration – two-and-a-half to

five years for possessing an instrument of crime; a consecutive term of two-

and-a-half to five years for conspiracy; two consecutive mandatory minimum

sentences of five to ten years for two of the robberies; and two concurrent

mandatory minimum sentences of five to ten years for the other two

robberies. N.T., 11/20/12, at 19-20. It was uncontested at sentencing that

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Reese was subject to the mandatory minimum sentences pursuant to section

9712 of the Sentencing Code.5 See id. at 5, 13.

5 This section provides, in relevant part:

(a) Mandatory sentence.--Except as provided under section 9716 (relating to two or more mandatory minimum sentences applicable), any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) (relating to sentences for second and subsequent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. Such persons shall not be eligible for parole, probation, work release or furlough.

(b) 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.

(c) Authority of court in sentencing.--There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to

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Between the panel’s original decision and reargument en banc,

however, this Court in Commonwealth v. Valentine, 101 A.3d 801 (Pa.

Super. 2014), found section 9712 unconstitutional based upon the United

States Supreme Court’s decision in Alleyne v. U.S., __ U.S. __, 133 S.Ct.

2151 (2013), which held: “[F]acts that increase mandatory minimum

sentences must be submitted to the jury.” Id. at 2163. In

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), this

Court en banc found that Alleyne applies retroactively to cases that were

pending on direct appeal when the decision was handed down. Id. at 90.

On this basis, we therefore vacate the judgment of sentence and remand for

resentencing without consideration of the mandatory minimum sentencing

provisions of section 9712.

Judgment of sentence vacated. Case remanded for resentencing in

accordance with this Memorandum. Jurisdiction relinquished.

Judges Bowes, Shogan, Lazarus, Mundy, Olson, Stabile and Jenkins

join the Memorandum.

Judge Wecht files a Concurring and Dissenting Memorandum.

place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

42 Pa.C.S.A. § 9712(a).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/23/2015

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