Com. v. Brown, S. ( 2015 )


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  • J-S02016-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    SHARIF BROWN,
    Appellant                  No. 3457 EDA 2013
    Appeal from the Judgment of Sentence of August 12, 2013
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0000850-2010
    CP-51-CR-0000851-2010
    CP-51-CR-0000852-2010
    CP-51-CR-0000853-2010
    CP-51-CR-0000854-2010
    BEFORE: MUNDY, OLSON and WECHT, JJ.
    MEMORANDUM BY OLSON, J.:                           FILED MARCH 17, 2015
    Appellant, Sharif Brown, appeals from the judgment of sentence
    entered on August 12, 2013 in the Criminal Division of the Court of Common
    Pleas of Philadelphia County. After careful review, we affirm in part, vacate
    in part, and remand for resentencing.
    Appellant was arrested and charged with multiple robbery, assault,
    and firearms related offenses following three gunpoint robberies that
    occurred in Philadelphia on October 24, 2009.         Thereafter, Appellant
    proceeded to a jury trial that commenced on March 20, 2013. On March 26,
    2013, the jury found Appellant guilty of numerous charges and the trial
    court imposed an aggregate sentence of 17½ to 35 years’ imprisonment on
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    August 12, 2013.        Set forth below is a summary, by docket number, of
    Appellant’s convictions and his corresponding sentences.
    At CP-51-CR-0000850-2010 (850-2010), Appellant was convicted and
    sentenced to two and one-half to five years of incarceration for persons not
    to possess firearms,1 two and one-half to five years of incarceration for
    carrying a firearm without a license,2 two and one-half to five years of
    incarceration for carrying firearms in public in Philadelphia,3 two and
    one-half to five years of incarceration for possessing an instrument of crime
    (PIC),4 and one to two years of incarceration for simple assault.5 All of these
    sentences were set to run concurrently.
    At CP-51-CR-0000851-2010 (851-2010), Appellant was convicted and
    sentenced to five to 10 years of incarceration for robbery. 6 The trial court
    directed that this sentence should run consecutive to those imposed at
    850-2010. In addition, Appellant was convicted and sentenced to five to 10
    years of incarceration for possession of firearms prohibited, three and
    ____________________________________________
    1
    18 Pa.C.S.A. § 6105. The trial court determined Appellant’s guilt for this
    offense at all docket numbers.
    2
    18 Pa.C.S.A. § 6106.
    3
    18 Pa.C.S.A. § 6108.
    4
    18 Pa.C.S.A. § 907.
    5
    18 Pa.C.S.A. § 2701.
    6
    18 Pa.C.S.A. § 3701.
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    one-half to seven years of incarceration for carrying a firearm without a
    license, and two and one-half to five years of incarceration for carrying
    firearms in public in Philadelphia.            The trial court ordered that these
    sentences should run concurrent to the sentence for robbery at docket (851-
    2010).
    At CP-51-CR-0000852-2010 (852-2010), Appellant was convicted and
    sentenced to five to 10 years of incarceration for aggravated assault.7 The
    trial court ordered that Appellant’s sentence for aggravated assault should
    run consecutive to the sentence imposed at 851-2010.                 In addition,
    Appellant was convicted and sentenced to five to 10 years’ incarceration for
    robbery, five to 10 years’ incarceration for possession of firearms prohibited,
    three and one-half to seven years’ incarceration for carrying a firearm
    without a license, and two and one-half to five years of incarceration for
    carrying firearms in public in Philadelphia. Appellant’s sentences for robbery
    and his firearms convictions were set to run concurrent to the sentence
    imposed for aggravated assault at docket (852-2010).
    At CP-51-CR-0000853-2010 (853-2010), Appellant was convicted and
    sentenced to five to 10 years of incarceration for possession of a firearm
    prohibited and one to two years of incarceration for simple assault. The trial
    ____________________________________________
    7
    18 Pa.C.S.A. § 2702.
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    court    directed   that   these   sentences   should   run   concurrent    to   the
    punishments imposed at the other docket numbers.
    At CP-51-CR-0000854-2010 (854-2010), Appellant was convicted and
    sentenced to five to 10 years of incarceration for robbery. The trial court
    ordered this sentence to run consecutive to the sentences imposed at
    852-2010. In addition, Appellant was convicted and sentenced to five to 10
    years of incarceration for possession of firearms prohibited, three and
    one-half to seven years of incarceration for carrying firearms without a
    license, two and one-half to five years of incarceration for carrying firearms
    in public in Philadelphia, and two and one-half to five years for PIC. The trial
    court ordered these sentences to run concurrent to Appellant’s robbery
    sentence at this docket (854-2010).
    On August 22, 2013, Appellant moved for post-sentence relief,
    alleging, among other things, that his sentence was excessive.             The trial
    court denied Appellant’s post-sentence motion on October 30, 2013.
    Subsequently, Appellant filed a notice of appeal on November 27,
    2013.    Appellant’s notice, however, listed only docket number 854-2010.
    After obtaining leave from this Court to amend the notice by listing the
    remaining docket numbers, Appellant filed a corrected notice of appeal on
    February 27, 2014.
    Meanwhile, on January 15, 2014, the trial court issued an order
    pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a concise statement
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    of errors complained of on appeal within 21 days.           After receiving an
    extension of time from the trial court, Appellant filed his concise statement
    on February 26, 2014. Appellant preserved his present claims by including
    them within his submission to the trial court.
    Appellant’s brief raises the following questions for our review:
    Was not the evidence insufficient to establish that Appellant was
    the perpetrator of the crimes for which he was convicted?
    Did [the trial court err] in sentencing Appellant on more than
    one count of [possession of firearms prohibited, carrying a
    firearm without a license, and carrying firearms in public in
    Philadelphia under] 18 Pa.C.S.[A.] §§ 6105, 6106 and 6108
    where the evidence presented at trial was that Appellant carried
    the firearm in an uninterrupted fashion for the entire period
    encompassing the robberies[?]
    Should not the mandatory minimum sentencing statute, 42
    Pa.C.S. § 9712 [sentences for offenses committed with
    firearms], be declared void and unenforceable, where multiple
    procedural    provisions   within    the statute  are   facially
    unconstitutional pursuant to Alleyne v. United States, 
    133 S.Ct. 2151
     (2013), and cannot properly be severed from the
    remaining statute, thereby rendering application in Appellant’s
    case of the mandatory minimum sentence of [five] to 10 years [’]
    confinement on the robbery and aggravated assault conviction[s]
    under this statute unconstitutional[?]
    Was not the [trial] court’s imposition of 17½ to 35 years[‘]
    confinement in violation of the Sentencing Code and contrary to
    the fundamental norms underlying the sentence process, and
    therefore manifestly unreasonable, excessive and an abuse of
    discretion?
    Appellant’s Brief at 5-6.
    Appellant argues in his first issue that the eyewitness testimony in this
    case was so inherently unreliable that the evidence was insufficient to
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    establish that he perpetrated the crimes for which he was convicted.             To
    advance this claim, Appellant cites the brief duration of the complainants’
    encounters with their assailant, the fact that these encounters occurred at
    night, the “unremarkable” descriptions offered by the victims, and certain
    minor    inconsistencies   established    during   examination   at   trial.    See
    Appellant’s Brief at 23-29. This claim fails.
    Our standard when reviewing the sufficiency of the evidence is
    whether the evidence at trial, and all reasonable inferences
    derived therefrom, when viewed in the light most favorable to
    the Commonwealth as verdict-winner, are sufficient to establish
    all elements of the offense beyond a reasonable doubt. We may
    not weigh the evidence or substitute our judgment for that of the
    fact-finder. Additionally, the evidence at trial need not preclude
    every possibility of innocence, and the fact-finder is free to
    resolve any doubts regarding a defendant's guilt unless the
    evidence is so weak and inconclusive that as a matter of law no
    probability of fact may be drawn from the combined
    circumstances. When evaluating the credibility and weight of the
    evidence, the fact-finder is free to believe all, part or none of the
    evidence. For purposes of our review under these principles, we
    must review the entire record and consider all of the evidence
    introduced.
    Commonwealth v. Patterson, 
    940 A.2d 493
    , 500 (Pa. Super. 2007).
    Here, Appellant's challenges to the eyewitness testimony relate to the
    weight of the evidence, not to its sufficiency. See Patterson, 940 A.2d at
    502; Commonwealth v. Galloway, 
    434 A.2d 1220
    , 1222 (Pa. 1981)
    (discrepancies in testimony go to the credibility of the witnesses and not the
    sufficiency of the evidence); Commonwealth v. Halye, 
    719 A.2d 763
    , 764
    (Pa. Super. 1998) (en banc), appeal denied, 
    743 A.2d 916
     (Pa. 1999), cert.
    denied sub nom, Pennsylvania v. Halye, 
    529 U.S. 1012
     (2000) (mere
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    conflict in the testimony does not render the evidence insufficient because it
    is within the province of the fact finder to determine the weight to be given
    to the testimony and to believe all, part, or none of the evidence).
    Viewing the evidence in the light most favorable to the verdict winner,
    we find that the Commonwealth presented sufficient evidence to establish
    Appellant's identity as the perpetrator. In this case, Reginald Beatty, one of
    the robbery victims, wrestled with Appellant and was able to describe
    Appellant’s facial features to police.         During this struggle, a cellular
    telephone belonging to another victim (Steven King) fell from Appellant’s
    pocket. After Appellant’s arrest, Beatty positively identified Appellant as his
    assailant. Moreover, Beatty identified Appellant at trial. Lastly, all three of
    the victims accurately and consistently described Appellant’s complexion,
    height, weight, age, and clothing to police. Thus, the evidence was not so
    inherently    unreliable    that   it   precluded   a   finding   of    guilt.    See
    Commonwealth v. Orr, 
    38 A.3d 868
    , 874-875 (Pa. Super. 2011);
    Patterson, 940 A.2d at 502 (positive identification of appellant as
    perpetrator of burglary sufficient to support conviction).
    In his second issue, Appellant asserts that the trial court unlawfully
    sentenced him for five violations of § 6105 (persons not to possess
    firearms), and for four violations each of §§ 6106 (possession of firearms
    without   a   license)     and   6108   (possession     of   firearms   in   public   in
    Philadelphia).   Appellant maintains that, notwithstanding the three armed
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    robberies sub judice and the ensuing armed interaction with police, his
    possession of a firearm constituted a single, uninterrupted criminal episode
    for purposes of the foregoing firearms provisions. Hence, under our decision
    in Commonwealth v. Woods, 
    710 A.2d 626
     (Pa. Super. 1998), appeal
    denied, 
    729 A.2d 1129
     (Pa. 1998), Appellant argues that it was improper for
    the trial court to impose multiple sentences for each provision that Appellant
    violated.
    The Commonwealth advances two arguments in support of the trial
    court’s conclusion that multiple sentences were appropriate.        First, the
    Commonwealth cites 42 Pa.C.S.A. § 9765 for the proposition that crimes do
    not merge for sentencing purposes unless the offenses arise from a single
    criminal act and all of the statutory elements of one offense are included in
    the statutory elements of the other offense. See Commonwealth’s Brief at
    14. Next, the Commonwealth cites Commonwealth v. Andrews, 
    720 A.2d 764
     (Pa. super. 1998), aff’d, 
    768 A.2d 309
     (Pa. 2001), wherein both this
    Court and our Supreme Court affirmed two convictions for PIC where the
    defendant used a handgun in two separate robberies, in two separate
    apartment complexes, on the same day.
    Appellant’s claim alleges that the trial court improperly imposed
    multiple punishments for a single criminal act, a contention that implicates
    the legality of Appellant’s sentences.   See Commonwealth v. Robinson,
    
    931 A.2d 15
    , 21 (Pa. Super. 2007) (en banc) (the term illegal sentence is
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    one that applies to a narrow class of cases including:      (1) claims that the
    sentence fell outside of the legal parameters prescribed by the applicable
    statute; (2) claims involving merger/double jeopardy; and (3) claims
    implicating the rule in Apprendi v. New Jersey, 
    530 U.S. 466
     (2000)).
    “Issues relating to the legality of a sentence are questions of law[; hence,
    o]ur standard of review over such questions is de novo and our scope of
    review is plenary.” Commonwealth v. Hawkins, 
    45 A.3d 1123
    , 1130 (Pa.
    Super. 2012), appeal denied, 
    53 A.3d 756
     (Pa. 2012).
    Appellant maintains that possession of a firearm is a continuous and
    uninterrupted event for purposes of §§ 6105, 6106, and 6108, and that his
    use of a handgun during the three October 24, 2009 robberies and the
    ensuing armed encounter with police, did not alter this fact. Appellant cites
    to Woods in support of this contention.         In Woods, the defendant
    perpetrated a series of armed assaults following a vehicle accident and was
    convicted, inter alia, of two counts of violating § 6108.    See Woods, 
    710 A.2d at 631
    . We concluded that the defendant’s gun possession represented
    a single offense under § 6108, reasoning that the crime was complete upon
    carrying a weapon on a public street, regardless of whether it was used in
    the commission of a crime. See id.; accord Commonwealth v. Brandrup,
    
    366 A.2d 1233
    , 1234 (Pa. Super. 1976) (holding that the crime of former
    convicts not to own or possess a firearm is a continuing offense).         We
    explained our rationale as follows:
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    It is important to point out that the violation of the Firearms Act
    was separate and apart from appellant's usage of the firearm in
    the assaults. That is to say, appellant would have been guilty of
    violating § 6108 by carrying a weapon regardless of whether or
    not he used the weapon in the commission of a crime. Logically
    speaking then, the Commonwealth's decision to charge him with
    two violations of this section is wholly arbitrary.
    Under § 6108 a crime is committed by carrying a weapon on a
    public street. In the context of an uninterrupted or continuous
    carrying of a weapon at what point does one stop “carrying” a
    firearm on the street and start anew? Does one commit a
    violation of the Act with every step he takes while carrying a
    firearm? Or does one commit a violation based upon a certain
    passage of time? If so, how much time must pass before a new
    offense begins? Is it a separate offense for every hour one
    carries a weapon? Or every ten minutes?
    The fact of the matter is there was no evidence to indicate that
    appellant carried the subject weapon in other than an
    uninterrupted fashion for the entire period encompassing the two
    assaults, as well an indeterminate period of time before and
    after the assaults. Since under the Act commission of the
    offense is not predicated upon the commission of a crime with
    the weapon the charging of two violations is no more logical than
    charging appellant for one offense every ten minutes, or every
    hour, or every step he took, while carrying a weapon. Although
    zealous District Attorneys might embrace such an interpretation
    of the Act we cannot. Since the offense is not linked to usage of
    the firearm in a separate crime appellant's “carrying” of the
    weapon must be construed, from a logical standpoint, to
    represent a single offense of the statutory prohibition against
    carrying a weapon upon the street. Since appellant committed
    but one offense in carrying a weapon upon the streets, he
    cannot have two sentences imposed upon him for that violation.
    As such, we reverse the second sentence imposed upon
    appellant for violation of 18 Pa.C.S.A. § 6108 at Bill number
    4422.     In all other respects the judgment of sentence is
    affirmed.
    Woods, 
    710 A.2d at 631-632
     (footnotes omitted).
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    In this case, the record establishes that Appellant unlawfully possessed
    a firearm8 during the course of three robberies and during an armed
    encounter with police that immediately followed his confrontation of the
    robbery victims. The entire episode occurred within a brief period and was
    confined to a localized vicinity in the City of Philadelphia. Hence, Appellant’s
    firearm possession was continuous and uninterrupted in nature and
    constituted only a single offense under §§ 6105, 6106, and 6108.                  Since
    Appellant committed only one violation of each of the offenses codified at
    §§ 6105, 6106, and 6108, the trial court erred in imposing multiple
    sentences for those violations. As such, we vacate the multiple sentences
    imposed upon Appellant for violating §§ 6105, 6106, and 6108. We remand
    to allow the trial court to consider an appropriate single sentence for
    Appellant’s violations of each of these provisions.
    We    are   not    persuaded      by    the   arguments   forwarded   by    the
    Commonwealth in defense of multiple sentences. As a preliminary matter,
    we reject the Commonwealth’s reliance upon 42 Pa.C.S.A. § 9765 to support
    ____________________________________________
    8
    There is no dispute in this case that: 1) Appellant’s criminal history
    revealed a disqualifying prior conviction for purposes of § 6105; 2) Appellant
    lacked the proper credentials for carrying a firearm as required for § 6106;
    and, 3) Appellant carried his firearm on a public street in Philadelphia
    despite the prohibition found in § 6108.
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    its position. Section 9765, entitled Merger of Sentences,9 comes into play
    where a single act results in a violation of two distinct penal provisions,
    thereby necessitating a comparison of the elements of each offense to
    determine whether one of the provisions requires proof of a fact that the
    other does not.       Commonwealth v. Baldwin, 
    985 A.2d 830
    , 836 (Pa.
    2009), quoting Blockburger v. United States, 
    284 U.S. 299
     (1932). Here,
    by contrast, Appellant’s claim centers upon whether he committed one
    continuous act or multiple acts in violation of the respective firearms
    provisions. Thus, § 9765 has no relevance to the precise claim before us.
    The Commonwealth’s citation to Andrews, 
    supra
     is also unavailing.
    In Andrews, the defendant and another individual, both armed with
    handguns, robbed an apartment complex in the City of Philadelphia. Later
    the same day, approximately two hours later, the defendant and his partner
    robbed a second apartment complex in a different part of town. Both actors
    employed handguns to facilitate the robberies. Shortly thereafter, the men
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    9
    Section 9765 provides:
    § 9765. Merger of sentences
    No crimes shall merge for sentencing purposes unless the crimes
    arise from a single criminal act and all of the statutory elements
    of one offense are included in the statutory elements of the
    other offense. Where crimes merge for sentencing purposes, the
    court may sentence the defendant only on the higher graded
    offense.
    42 Pa.C.S.A. § 9765.
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    were arrested.    At the conclusion of a joint trial, the jury found the
    defendant and his co-defendant guilty of five counts of robbery, two counts
    of criminal conspiracy, and two counts of PIC.
    On appeal to this Court, the defendant alleged that principles of double
    jeopardy and statutory construction required that we vacate his multiple
    consecutive sentences for conspiracy and PIC. Citing the Commonwealth’s
    motion to proceed with a consolidated trial, the defendant reasoned that if
    the robberies constituted a continuous, overlapping common scheme, then
    the inchoate crimes of conspiracy and PIC constituted a single, continuing
    offense such that only one sentence should have been imposed.                We
    rejected the defendant’s claim, concluding that nothing about the concept of
    consolidation   compelled   merger   of his   sentences.    In   addition,   we
    distinguished our then-recent decision in Woods, holding that it was
    possible for the trial court to conclude that the two robberies -- and, hence,
    the defendant’s two PIC convictions -- were separate and unrelated criminal
    offenses. See Andrews, 
    720 A.2d at
    769 n.8.
    Our Supreme Court accepted Andrews for further review.          Initially,
    the Supreme Court noted that the defendant’s challenge to the multiple
    sentences imposed for his inchoate crimes such as PIC was properly viewed
    as a challenge to the sufficiency of the evidence, rather than a legality of
    sentence claim. Andrews, 768 A.2d at 313. This was because the relevant
    inquiry was fact intensive and focused primarily upon the actor’s intent, as
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    demonstrated by the circumstances surrounding his unlawful possession,
    which determined “whether his repeated use of the firearm was the product
    of a singular criminal intent or reflective of multiple manifestations of intent
    associated with each act.” Id. If repeated, criminal use of the firearm could
    be inferred from the facts, then multiple sentences for PIC could be imposed
    without implicating double jeopardy concerns.               See id. (“resolution of the
    double jeopardy issue is inextricably intertwined with the sufficiency of the
    evidence”).       Ultimately, the Supreme Court in Andrews upheld the
    defendant’s multiple convictions and sentences for PIC because it found that
    the evidence was sufficient to show that the defendant twice developed the
    intent    to   employ    his   firearm    criminally   in    furtherance   of    separate
    conspiratorial agreements.         Id. at 318.     In reaching this conclusion, the
    Supreme Court expressly differentiated the firearm offense at issue in
    Woods, which did not require a showing of intent, from the defendant’s
    convictions for PIC, where intent constituted the touchstone of the actor’s
    criminal liability. Id. at 317.
    In the present case, Appellant brings a claim that is directly parallel to
    the one we considered in Woods.10 As in Woods, Appellant’s crimes were
    complete when he acquired unlawful possession of a handgun.                     Moreover,
    his intent to employ the firearm for criminal purposes was irrelevant to a
    ____________________________________________
    10
    Appellant does not challenge his convictions or sentences for PIC.
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    finding of guilt under §§ 6105, 6106, and 6108. Thus, unlike the situation in
    Andrews, where an assessment of the surrounding circumstances showed
    that the commission of multiple criminal offenses supported compound
    sentences, there could be no similar showing in the instant case. Therefore,
    Woods requires that we vacate Appellant’s sentences for his firearms
    convictions.
    Appellant’s third claim alleges that the trial court imposed illegal
    mandatory minimum sentences pursuant to 42 Pa.C.S.A. § 9712 when it
    fashioned punishments for Appellant’s convictions on three counts of robbery
    and one count of aggravated assault. Appellant’s Brief at 33, citing Alleyne
    v. United States, 
    133 S.Ct. 2151
     (U.S. 2013). The Commonwealth does
    not dispute that § 9712 has been invalidated by prior decisions of this Court.
    It claims, however, that Appellant has waived his present challenge and that
    the Alleyne-offending provisions of § 9712 are severable from remaining
    portions of the statute.
    We    are    constrained      to    disagree   with   the   Commonwealth’s
    contentions.11 It is firmly established that a challenge to the application of a
    ____________________________________________
    11
    Several members of this Court, including this author, have recognized that
    cogent arguments support a finding that the Allenye-offending provisions of
    Pennsylvania’s mandatory minimum sentencing schemes are severable.
    Commonwealth v. Newman, 
    99 A.3d 86
    , 104-106 (Pa. Super. 2014) (en
    banc) (Mundy, J. dissenting); Commonwealth v. Bizzel, 
    2014 WL 6756277
    at *4-*11 (Pa. Super. 2014) (Bowes, J. concurring). To date, however,
    (Footnote Continued Next Page)
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    mandatory minimum sentence raises concerns as to the legality of the
    sentence and cannot be waived. Commonwealth v. Wately, 
    81 A.3d 108
    ,
    118 (Pa. Super. 2013) (en banc). Moreover, several recent decisions issued
    by this Court have declared that § 9712 is unconstitutional and that the
    Alleyne-offending provision are not severable from the remainder of the
    statute. See, e.g., Commonwealth v. Ferguson, 
    2015 WL 49438
    , *5-*8
    (Pa. Super. 2015); Commonwealth v. Valentine, 
    101 A.3d 801
    , 809, 811-
    812 (Pa. Super. 2014).          Hence, we must vacate Appellant’s sentence and
    remand for resentencing without consideration of the mandatory minimum
    sentences provided in § 9712.
    In his fourth claim, Appellant presents a challenge to the discretionary
    aspects of his sentence.         In view of our dispositions of Appellant’s second
    and third issues, which remanded this case for resentencing, we decline to
    review Appellant’s discretionary sentencing claim.
    Convictions affirmed. Judgment of sentence vacated. Case remanded
    for resentencing. Jurisdiction relinquished.
    _______________________
    (Footnote Continued)
    these views have not carried the day. However, our Supreme Court is
    currently considering the issue of severability in several cases.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/17/2015
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