Com. v. Reed, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ALPHONSO REED
Appellant No. 1708 MDA 2016
Appeal from the PCRA Order September 27, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001482-2011
BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 22, 2017
Alphonso Reed appeals from the September 27, 2016 order denying
his PCRA petition. We affirm in part, reverse in part, and remand this
matter for resentencing.
The PCRA court ably set forth the following facts relevant to this
appeal:
On or about June 2, 2011, Detectives Ryan Mong [“Det.
Mong”] and Adam Saul [“Det. Saul”] were conducting
surveillance of an alleged drug sale between an unknown
individual and an undercover officer, Sergeant Brett Hopkins
[“Sgt. Hopkins”]. A confidential informant arranged for the
undercover officer to meet an individual identified as Charles
Holloway [“Holloway”]. After meeting Sgt. Hopkins, Holloway
made a phone call and a short time later an unidentified
individual came onto the scene. Det. Mong described him as an
older man with a graying beard. This individual handed an item
to Holloway who then turned and immediately handed a bag of
crack cocaine to the undercover officer. After the transaction
* Former Justice specially assigned to the Superior Court.
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was complete, the [detectives] followed the individual on foot
until they lost sight of him. That individual remained unknown
and was identified in Lebanon County Detective Bureau
Department Case Report 11-131-1 as merely “Juan Doe.”
On or about August 19, 2011, at approximately 7:30 p.m.,
[Appellant] was walking along the 800 block of Chestnut Street,
Lebanon, when Det.’s Mong and Saul drove by in an unmarked
vehicle. Det. Mong recognized [Appellant] as the “Juan Doe”
with the graying beard from the June 2, 2011 incident. Det.
Mong and [Det.] Saul approached [Appellant] in order to
determine his name. The Detectives had their badges in plain
view and Det. Mong identified himself to [Appellant]. Det. Mong
testified that he did not intend to arrest [Appellant] at that time.
Det. Saul stood slightly behind Det. Mong during the interaction
with [Appellant], close enough to hear the conversation and to
assist Det. Mong if needed. Det. Mong asked [Appellant] for
some identification. [Appellant] handed a Pennsylvania
Identification Card to Det. Mong, who radioed the information to
dispatch to determine if there were any outstanding warrants for
[Appellant]. Det. Mong told [Appellant] that they had stopped
him because they recognized him as a person who had sold
drugs to an undercover officer. Det. Mong returned [Appellant’s]
identification. Dispatch notified Det. Mong that there were no
outstanding warrants for [Appellant]. Det. Mong testified that he
could not recall if he had returned [Appellant’s] identification
before stating that [Appellant] was stopped because of the sale
of drugs.
Det. Mong asked [Appellant] if he had any drugs or
weapons on his person. [Appellant] replied in the negative.
Det. Mong then asked [Appellant] if he would consent to a
search of his person. [Appellant] replied in the affirmative. This
search produced thirteen (13) bags of crack cocaine, two cell
phones, and money. After the search, [Appellant] was arrested
and read his Miranda warnings. [Appellant] was charged as a
result of the items found on him on August 19, 2011[,] as well
as the sale of drugs to an undercover officer on June 2, 2011.
PCRA Court Opinion, 12/21/16, at 2-4.
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Appellant filed an omnibus pre-trial motion seeking the suppression of
the evidence recovered during the August 19, 2011 seizure and search, and
dismissal of the charges arising therefrom, contending that the detectives
illegally stopped him on the street. Following a hearing on the matter, the
court granted Appellant’s motion to suppress, finding that Appellant’s
consent was not voluntarily given. The court suppressed the evidence
obtained as a result of the search of Appellant’s person, and the charges
arising from that incident were ultimately dismissed. After a bench trial,
Appellant was found guilty of the charges stemming from his participation in
the June 2, 2011 drug transaction with Sergeant Hopkins.
Appellant filed a timely notice of appeal to this Court challenging the
sufficiency of the Commonwealth’s evidence and arguing that the Court
improperly weighed the evidence in the Commonwealth’s favor. We affirmed
Appellant’s judgment of sentence, finding that his challenge to the weight of
the evidence was waived since he failed to raise the issue before the trial
court, and that the Commonwealth had adduced sufficient evidence to
support his convictions. Commonwealth v. Reed, 91 A.3d 1295(Pa.Super. 2013) (unpublished memorandum).
On March 17, 2014, Appellant filed a pro se PCRA petition. Counsel
was appointed. Appointed counsel then filed a series of amended PCRA
petitions raising numerous challenges to the effectiveness of trial counsel,
including allegations that trial counsel failed to preserve Appellant’s
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challenge to the weight of the evidence and failed to file an appeal with
regards to his pre-trial motion. The PCRA court granted Appellant partial
relief, reinstated his right to file a post-sentence motion and direct appeal,
but limited Appellant’s post-sentence claims to his challenge to the weight of
the evidence and any issue stemming from his pre-trial motion. The court
denied Appellant’s subsequent post-sentence motion, and Appellant
appealed to this Court. This Court reversed the PCRA court’s ruling. We
found that the court erred in reinstating Appellant’s post-sentence motion
and direct appeal rights nunc pro tunc, and remanded the case to the PCRA
court directing it to consider Appellant’s claims under the auspices of the
PCRA. Commonwealth v. Reed, 151 A.3d 1135 (Pa.Super. 2016)
(unpublished memorandum).
On remand, the PCRA court denied Appellant’s PCRA petition.
Appellant filed a timely appeal, and complied with the court’s order to file a
Rule 1925(b) concise statement of matters complained of on appeal. The
court filed its Rule 1925(a) opinion. This matter is now ready for our review.
Appellant presents five questions for our consideration:
1. Whether Trial Counsel was ineffective for failing to preserve
Appellant’s challenge to the weight of the evidence on direct
appeal?
2. Whether Trial Counsel was ineffective for failing to preserve
Appellant’s challenge to the Court’s partial denial of
Appellant’s Suppression Motion regarding the reasonable
suspicions for the stop and the initial probable cause for the
arrest of the Appellant on direct appeal?
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3. Whether Trial Counsel was ineffective for failing to challenge
the Court’s imposition of a mandatory minimum sentence for
Appellant’s delivery of a controlled substance conviction under
Alleyne v. U.S.[, 133 S.Ct. 2151 (2013)]?
4. Whether Trial Counsel was ineffective for failing to object to
the lab reports at trial?
5. Whether Trial Counsel was ineffective for failing to properly
impeach Sergeant Hopkins regarding the race of the Appellant
by not calling [Detective] Saul to testify?
Appellant’s brief at 4-5.
Our review of an order denying PCRA relief is limited to determining
“whether the decision of the PCRA court is supported by the evidence of
record and is free of legal error.” Commonwealth v. Melendez-Negron,
123 A.3d 1087, 1090 (Pa.Super. 2015). We will not overturn the PCRA
court’s findings of fact “unless there is no support for [those] findings in the
certified record.” Id.Appellant poses five challenges impugning the effectiveness of trial
counsel. As discussed further infra, we find Appellant’s third issue directly
implicates the legality of his sentence, and thus, we will examine it
separately under the appropriate rubric. As it concerns Appellant’s first,
second, fourth, and fifth claims, when we review a claim of ineffective
assistance of counsel, “we begin with the presumption [that] counsel is
effective.” Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017)
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(citation omitted). In order to succeed on such a claim, an appellant must
establish, by a preponderance of the evidence:
(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s actions or failure to act;
and (3) appellant suffered prejudice as a result of counsel’s
error, with prejudice measured by whether there is a reasonable
probability that the result of the proceeding would have been
different.
Id. at 296-297. Finally, we are “not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; if a claim fails under
any necessary element . . . the court may proceed to that element first.”
Id. at 297 (citation omitted).
First, Appellant alleges that trial counsel rendered ineffective
assistance of counsel when he failed to preserve a challenge to the weight of
the evidence for appellate review. He asserts that, had trial counsel pursued
the issue, he would have been granted a new trial. In support of this
position, Appellant highlights a variety of areas where the Commonwealth
failed to establish elements of the crimes for which he was charged. For
example, he notes that the Commonwealth did not present evidence
establishing that he and Holloway were associates, that Holloway called
Appellant to facilitate the drug buy, or that Appellant had delivered narcotics
to Holloway. Appellant insists that the court should have credited his
testimony that he was in New York City at the time of the undercover drug
buy, and discredited testimony by the detectives indicating that Appellant
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was involved in the transaction. Further, he emphasizes the disparity in the
initial investigative documents, which identified the unknown individual as
“Juan Doe,” suggesting that the suspect was of Hispanic origin, when
Appellant is, in fact, a black man. Thus, he concludes that, had trial counsel
preserved his weight of the evidence claim for review, he would have been
awarded a new trial.
The PCRA court determined that trial counsel presented a reasonable
strategic basis for failing to pursue a weight claim, and that Appellant had
not been prejudiced by that failure. The court credited the testimony of trial
counsel, Michael Bechtold, Esquire, who explained that, after discussing the
issue with Appellant, they agreed that filing a post-sentence motion with the
trial court would not be successful. Trial counsel explained that Appellant
arrived at this decision after he disclosed to Appellant that, since the judge
is the trier of fact in a bench trial, challenging the weight of the evidence
before the trial court would not likely succeed.
The PCRA court agreed with Attorney Bechtold’s assessment, and
found that, since the trial court “heard all of the facts and rendered a verdict
based on those facts, it can be presumed that [the trial court] did not find
that the evidence was contrary to the verdict.” PCRA Opinion, 12/12/16, at
9. We find that trial counsel offered a reasonable basis for abandoning
Appellant’s weight claim.
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We observe that “one of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict was or
was not against the weight of the evidence and that a new trial should be
granted in the interest of justice.” Commonwealth v. Leatherby, 116
A.3d 73, 82 (Pa.Super. 2015) (citation omitted). In order to succeed on
such a claim, Appellant would have to prove that the verdict was “so
contrary to the evidence that it shocks one’s sense of justice[.]”
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014).
Under the circumstances of this case, a successful challenge to the
weight of the evidence required Appellant to convince the judge, who served
as trier of fact, that his own verdict was so contrary to the evidence that it
shocked his sense of justice.1 In light of this arduous standard, we find that
Attorney Bechtold’s decision to forego post-sentence review before the trial
court was supported by his reasonable belief that such a challenge faced no
realistic chance of success. Hence, Appellant is not entitled to relief.
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1
It is also worth noting that the majority of Appellant’s argument reads as a
challenge to the sufficiency of the evidence, not the weight of the evidence,
as he highlights numerous areas where he asserts that the Commonwealth
failed to carry its burden of proof. Ignoring for a moment that this Court has
previously determined that the Commonwealth proffered sufficient evidence
to support Appellant’s convictions, see Commonwealth v. Reed, 91 A.3d
1295 (Pa.Super. 2013) (unpublished memorandum), such an argument is
not in keeping with our standard of review. Commonwealth v. Diaz, 152
A.3d 1040, 1046 (Pa.Super. 2016) (stating, “When a defendant challenges
the weight of the evidence, he ‘concedes that the evidence is sufficient to
sustain the verdict[.]’”).
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Appellant’s second issue alleges that trial counsel was ineffective for
failing to appeal what he characterizes as the trial court’s partial denial of his
pre-trial motion to suppress. Appellant asserts that Detectives Mong and
Saul lacked reasonable suspicion when they stopped and questioned him.
He concedes that the trial court granted his motion to suppress. However,
he notes that the court based its decision on the lack of voluntary consent to
the search performed at that time, rather than on an alternative basis,
namely, the unlawfulness of the stop itself.
Appellant confines his argument to the assertion that, if trial counsel
had appealed that aspect of the court’s ruling, then the lawfulness of his
stop as a whole would have been assailed, and all the evidence arising
therefrom, including evidence of his identity, would have been suppressed.
Appellant argues that, without knowledge of his identity, the police could not
have arrested him for the offenses arising in from the June 2, 2011 drug
sale. Thus, he claims trial counsel rendered ineffective assistance of counsel
when he failed to preserve a challenge to the trial court’s supposed partial
denial of his suppression motion. We find this argument lacks arguable
merit.
Here, Appellant filed an omnibus pre-trial motion requesting the
suppression of the evidence discovered during his encounter with Detectives
Mong and Saul. Following a hearing on the matter, the trial court granted
Appellant’s motion to suppress and the charges arising from the illegal
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search of Appellant’s person were dismissed. Since Appellant’s requested
relief was granted by the trial court, trial counsel had no basis, and Appellant
had no standing, to pursue an appeal. See Pa.R.A.P. 501; Commonwealth
v. Fitzpatrick, 2017 PA Super 101 (Pa.Super. 2017) (noting “only an
aggrieved party can appeal from an order entered by the lower court.”).
Further, we have long held that a defendant’s identity is not subject to
suppression. Hence, assuming, arguendo, that this issue was properly
before us, Appellant would not be entitled to relief. See Commonwealth v.
Santiago, 2017 PA Super 116 (Pa.Super. 2017) at *13 (noting the
distinction between evidence about identity, which is “potentially
suppressible,” and the suppression of identity itself, “a theory that has been
expressly rejected,” and holding, “[t]his distinction is the implicit and
practical consequence of the rule that identity itself is never suppressible,
while evidence about identity is.”). As such, trial counsel was not ineffective
for failing to appeal Appellant’s pre-trial suppression motion.
Appellant’s fourth issue assails trial counsel’s decision to stipulate to
the admission of a lab report which confirmed that the substance passed to
Sergeant Hopkins was an illegal narcotic. Appellant’s argument in this
respect merely recites the test for establishing ineffectiveness and baldly
postulates that counsel’s failure to object to the lab report meets this
burden. Appellant’s only substantive assertion suggests that this argument
has arguable merit since trial counsel’s stipulation denied him the
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opportunity to confront the author of the report at trial. He does not
otherwise develop an argument contending that trial counsel lacked a
reasonable basis or that he was prejudiced by this purported error. For
example, in order to establish prejudice, Appellant only highlights “the jury’s
verdict and the penalties that followed such verdict.” Appellant’s brief at 43.
Notwithstanding the fact that Appellant was convicted following a bench-
trial, we find trial counsel had a reasonable basis for stipulating to the entry
of the lab report.
During trial, the Commonwealth sought to enter into the record a lab
report from the state police crime lab. N.T. Trial, 11/15/12, at 14. That
report indicated that the substance provided to Sergeant Hopkins by
Holloway and Appellant tested positive for cocaine. Id. The Commonwealth
moved for admission, and trial counsel did not object. Thus, the court
admitted the lab report into evidence. At the PCRA hearing, Attorney
Bechtold explained his decision as follows:
Prosecutor: As it relates to the lab report issue, you did
stipulate to the lab results?
Attorney Bechtold: That’s correct.
Prosecutor: You heard [Appellant’s] allegations that you were
ineffective for doing so. What was your reasoning for acting in
that fashion?
Attorney Bechtold: From day one when I met [Appellant], he
maintained his innocence throughout even until today. He told
me repeatedly he wasn’t in Lebanon at the time of this incident.
He was in the State of New York with some family or something
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to that effect. So he repeatedly told me and asked me to argue
on his behalf that he was not the person at the scene. So
therefore the substance or what was being transferred or sold on
this particular date was completely irrelevant. In fact, even the
Judge alluded to in my own statement there, how it was a waste
of argument and it weakened our other arguments and was
something not in our defense.
Prosecutor: So did you see any point in bringing in the
laboratory technicians to testify at trial?
Attorney Bechtold: No. I thought it would weaken our other
arguments.
N.T. PCRA Hearing, 4/27/15, at 34-35.
We note that the PCRA court credited Attorney Bechtold’s testimony,
and his assertions are supported by the record. Appellant maintained
throughout the course of his trial that he was not present in Lebanon at the
time of the transaction. Rather, he testified that he had spent the week in
New York visiting friends and family and working for his uncle. N.T. Trial,
11/15/12, at 125-134. Indeed, Appellant repeated this claim at his PCRA
hearing, stating, “That’s what I’m saying. I wasn’t there at all. That is it in
this case.” N.T. PCRA Hearing, 4/27/15, at 12. Thus, whether the
substance provided to Sergeant Hopkins was a narcotic was irrelevant to
Appellant’s defense. As such, we find Attorney Bechtold’s stipulation to the
lab report was based on a reasonable strategic maneuver intended to
maintain the potency of his argument.
Appellant’s fifth issue contends that trial counsel was ineffective for
failing to impeach Sergeant Hopkins regarding Appellant’s race as listed in
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certain police reports. He emphasizes the discrepancy between early police
reports describing the unknown individual who participated in the June 2,
2011 drug transaction as “Juan Doe,” implying that Sergeant Hopkins
suspected the unknown individual was of Hispanic origin, and reports
created after Appellant’s arrest which listed the suspect as a “black male.”
Although Appellant’s argument is not clear on this point, he seems to be
arguing that Detective Saul’s testimony would have called into question
whether he was involved in the drug transaction, and thus, that trial counsel
was ineffective for failing to offer that testimony. We find that, even if
Attorney Bechtold erred in failing to call Detective Saul, Appellant was not
prejudiced.
As noted above, we previously affirmed Appellant’s judgment of
sentence, finding that his convictions were supported by sufficient evidence,
Commonwealth v. Reed, 91 A.3d 1295 (Pa.Super. 2013) (unpublished
memorandum), relying, in part, on Sergeant Hopkins’ testimony that
Appellant provided Holloway with the crack cocaine. Id. at *4. However,
Sergeant Hopkins himself was aware of the discrepancies contained within
some of the police reports:
Defense Counsel: And you would agree with me that [Appellant]
has been identified on there as being Juan Doe in virtually every
single report that was processed in the transaction?
Sergeant Hopkins: Yes, and I didn’t prepare that because we
didn’t have his real name.
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Defense Counsel: Did you speak with [Appellant] at all during
the alleged transaction?
Sergeant Hopkins: No, I did not.
Defense Counsel: So you identified [Appellant] as being a
Hispanic gentleman basically all the way up until the time that
he is ultimately taken into custody almost three months – two to
three months later, correct?
Sergeant Hopkins: Yes.
....
Defense Counsel: That’s my question, Sergeant Hopkins, is you
prepared this [narrative] report – I’m gathering you prepared
this report on the date or immediately after the date in question,
June 2nd, correct?
Sergeant Hopkins: Pretty much.
Defense Counsel: And in that report, Sergeant Hopkins, you
identified [Appellant] as being a black male, correct?
Sergeant Hopkins: He could pass for either.
N.T. Trial, 11/15/12, at 31-32. On re-direct examination, the sergeant
discussed his difficulty in characterizing Appellant’s race:
Prosecutor: And you would agree with me that [Appellant] could
be classified as a light-skinned black male, am I correct?
Sergeant Hopkins: Yes, ma’am.
Prosecutor: You testified on cross[-examination] that he could
be considered either Hispanic or [a] black male?
Sergeant Hopkins: Yes, I didn’t hear him speak, so I couldn’t
tell what kind of dialect he had or accent.
Id. at 41.
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In addition, Detective Mong testified at trial that he was the assigned
surveillance officer for Sergeant Hopkins on June 2, 2011. Id. at 45. After
the transaction concluded, Detective Mong followed Appellant, and at one
point they crossed paths within two-feet of each other, providing the
detective ample opportunity to observe Appellant’s face. Id. at 47.
Subsequently, while on surveillance detail on August 19, 2011, Detective
Mong noticed Appellant walking down the street and immediately recognized
him as the unidentified individual from the prior drug transaction. Id. at 50.
In light of the testimony provided at trial, it is clear that the trier-of-
fact was well aware of the police officers’ inability to accurately characterize
the then-unknown suspect’s race. It is less clear how Detective Saul’s
testimony would have called Sergeant Hopkins’ testimony into question, and
Appellant’s argument does not illuminate that claim. Further, Sergeant
Hopkins admitted the difficulty he had in identifying the drug courier, but
provided a reasonable explanation for the discrepancy between the early and
later reports.
Significantly, Detective Mong’s testimony indicated that he was not
relying on the description of the unknown suspect contained within any
police report when he recognized Appellant on August 19, 2011. Rather, he
remembered Appellant from his own observations on June 2, 2011.
Therefore, even if Detective Saul were called to impeach Sergeant Hopkins,
the trial court had sufficient evidence to find that Appellant participated in
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the drug buy. Reed, supra. Hence, Appellant was not prejudiced by trial
counsel’s failure to offer Detective Saul’s testimony, and no relief is
warranted.
Finally, turning to Appellant’s third issue, Appellant claims that trial
counsel was ineffective for failing to object to the court’s imposition of an
illegal sentence. He posits that, pursuant to Alleyne v. United States, 133
S.Ct. 2151 (2013), his sentence was not lawful since the court imposed a
school zone mandatory minimum sentence, pursuant to then-enacted 18
Pa.C.S. § 6317,2 and a school zone enhancement without first determining
beyond a reasonable doubt that the drug sale had occurred within a school
zone. He alleges that trial counsel should have challenged his sentence in
light of the holding in Alleyne. Although Appellant raises this claim under
the auspices of a challenge to the effectiveness of trial counsel, at its heart,
it contests the legality of his sentence. Thus, we analyze his claim according
to the standard of review germane to such an allegation. Commonwealth
v. Mosley, 114 A.3d 1072, 1087 (Pa.Super. 2015) (noting that application
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2
Section 6317, which has been ruled unconstitutional, required imposition of
a two-year mandatory minimum jail term for a possession with intent to
deliver conviction pursuant to 35 P.S. § 780-113(a)(30), if “the possession
with intent to deliver of the controlled substance occurred within 1,000 feet
of the real property on which is located a public, private or parochial
school[.]” 18 Pa.C.S. § 6317 (held unconstitutional in Commonwealth v.
Hopkins, 117 A.3d 247 (Pa.Super. 2015)). That statute stated that its
provisions were not elements of the crime and were to be determined at
sentencing by the court under a preponderance-of-the-evidence standard.
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of mandatory minimum sentence raises illegal sentence concern, which may
be treated sua sponte by this Court). For the following reasons, we find
Appellant is entitled to relief.
A challenge to the legality of sentence raises a question of law, and
thus, our standard of review is de novo, and our scope of review is plenary.
Commonwealth v. Blakney, 152 A.3d 1053, 1054 (Pa.Super. 2016).
In Alleyne, supra, the United States Supreme Court held that “[a]ny
fact that, by law, increases the penalty for a crime is an ‘element’ that must
be submitted to the jury and found beyond a reasonable doubt.” Alleyne,
supra at 2155. Pursuant to Alleyne, a defendant has a constitutional right
to have the finder-of-fact decide the existence of any fact, other than a prior
conviction, beyond a reasonable doubt if that fact triggers application of a
mandatory minimum sentence. Instantly, the distance calculation necessary
for application of § 6317 was found by the sentencing court following a
stipulation by the parties. Such a stipulation does not satisfy Alleyne.
Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa.Super. 2014) (rejecting
argument that defendant’s stipulation as to weight of drugs recovered
satisfied mandate of Alleyne); Melendez-Negron, supra.
Further, we observe that the trial court imposed Appellant’s sentence
on January 23, 2013. The Supreme Court decided the Alleyne decision on
June 17, 2013. Appellant’s judgment of sentence was not affirmed by this
Court until November 25, 2013. Commonwealth v. Reed, 91 A.3d 1295- 17 -
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(Pa.Super. 2013) (unpublished memorandum). As Alleyne was issued
during the pendency of Appellant’s direct appeal, it was applicable to his
sentence. Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en
banc); Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.Super. 2015)
(observing, “In [Newman], we noted that Alleyne will be applied to cases
pending on direct appeal when Alleyne was issued.”). Moreover, since
Appellant raised this issue in a timely PCRA petition, he is entitled to be re-
sentenced for his conviction for possession with intent to deliver without
consideration of the mandatory minimum sentence contained within § 6317.
Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015) (reversing PCRA
order and vacating judgment of sentence where petitioner raised Alleyne
challenge in timely PCRA petition).3 Therefore, having found the PCRA court
erred in denying Appellant’s claim arising pursuant to Alleyne, we reverse
the PCRA order in that regard and affirm in all other respects, vacate the
judgment of sentence, and remand for resentencing consistent with this
decision.
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3
Appellant also levied a challenge to the trial court’s application of a “school
zone enhancement” to his sentence based on Alleyne. This Court has
previously found that Alleyne does not apply to sentencing enhancements
which only direct a court to consider a different range of potential minimum
sentences under the guidelines. Commonwealth v. Ali, 112 A.3d 1210,
1226 (Pa.Super. 2015), vacated and remanded on other grounds, 149 A.3d
29 (Pa. 2016). Hence, that aspect of Appellant’s sentence did not
contravene Alleyne.
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Order affirmed in part and reversed in part. January 23, 2013
judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2017
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