Com. v. Reese, B. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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.
-2-
J-E01004-15
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.
-3-
J-E01004-15
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
-4-
J-E01004-15
[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
-5-
J-E01004-15
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
-6-
J-E01004-15
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
-7-
J-E01004-15
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.
-8-
J-E01004-15
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.
-9-
J-E01004-15
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
- 10 -
J-E01004-15
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
- 11 -
J-E01004-15
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
- 12 -
J-E01004-15
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.
- 13 -
J-E01004-15
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.
- 14 -
J-E01004-15
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:
- 15 -
J-E01004-15
[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.
- 16 -
J-E01004-15
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
- 17 -
J-E01004-15
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
- 18 -
J-E01004-15
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
- 19 -
J-E01004-15
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).
- 20 -
J-E01004-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
- 21 -