Com. v. Stevens, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY STEVENS
Appellant No. 1684 MDA 2014
Appeal from the Judgment of Sentence of August 21, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0003409-2013
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 11, 2015
Gregory Stevens appeals his August 21, 2014 judgment of sentence.
We affirm the judgment of sentence in part, and we vacate it in part.
Based upon events that occurred on December 21, 2013, which we
detail immediately below, Stevens was charged with robbery, theft by
unlawful taking, simple assault, and three counts of criminal conspiracy.1
Prior to trial, Stevens filed a motion to suppress evidence relating to his out-
of-court identification and evidence of conversations that were intercepted
while he was incarcerated on these charges. Following a hearing, the trial
court denied the motion. Stevens waived his right to a jury trial, and the
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3701, 3921, 2701, and 903, respectively.
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parties agreed to incorporate the testimony from the suppression hearing
into the trial record. The Commonwealth produced additional testimony
from the victim of the robbery. At the conclusion of trial, the trial court
found Stevens guilty of all of the charges.
The following is a summary of the evidence that was produced at the
suppression hearing and the bench trial.
On December 21, 2013, Burgit’s Taxi service in Wilkes-Barre,
Pennsylvania, dispatched Henry Robinson to 28 North Grant Street to service
a customer that had called and requested a ride. When Robinson arrived at
that location, five individuals got into Robinson’s cab. Robinson drove the
individuals to their desired location. However, when they arrived there, only
three of the individuals exited the cab. Two males remained in the cab, and
requested to be taken to a nearby Turkey Hill convenience store. Robinson
agreed to continue on to that location.
When they arrived at the Turkey Hill, one of the men exited the cab
and went into the store. The man, wearing a hoodie and marked with
tattoos on his face, tried to purchase cigarettes from the store, but to no
avail because he did not have identification proving that he was old enough
to buy cigarettes. The man returned to the cab and asked Robinson to take
them back to the original drop-off location.
When they arrived back at the first location, one of the men, later
identified as Stevens, got out of the cab, opened the front passenger door,
and struck Robinson in the face with a gun. The two men hit Robinson two
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or three more times in the head. While doing so, they stole Robinson’s
watch, cell phone, ring, and wallet. The men then removed Robinson from
the cab and forced him to lie on the ground while they rummaged through
the cab for additional items to steal. They then told Robinson to stand up
and run away. Robinson fled to a nearby Rite Aid pharmacy, where he
called for police assistance.
Sergeant Phil Holbrook and Corporal Dennis Monk, after learning the
details of the robbery, went to the Turkey Hill store and watched the
surveillance video. Shortly thereafter, they received information that
another call had been placed to Burgit’s Taxi seeking a ride from 66 Kirby
Avenue, which was located across the street from the original drop-off
location. Sgt. Holbrook and Cpl. Monk believed that the call may have been
made by the individuals that had perpetrated the robbery.
Cpl. Monk knew the family that resided at that residence. He
attempted to contact the house, but no one answered. He then called the
owner of the house, Carol Kephart. Kephart told Cpl. Monk that only her two
children were permitted in the home, because she was out of town. She
consented to police entering the residence and to a subsequent search once
inside.
The police located eight people inside of the home. The police
handcuffed the eight people for the officers’ safety. The police decided to
bring Robinson to the house and have him attempt to identify either of the
robbers. Robinson sat in a police car that was parked approximately fifty
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yards from the front door of the residence. Sgt. Holbrook instructed another
officer to bring each individual to the front door, one at a time. Sgt.
Holbrook removed the handcuffs from each individual as they came to the
door and told each person that they were free to leave. When Stevens came
to the door, uncuffed and informed that he too was free to leave, Robinson
immediately recognized him as one of the men who had robbed him.
Robinson did not see Stevens at any time with handcuffs on his wrists.
Stevens was then stopped, and arrested. Robinson stated that he was
absolutely certain that Stevens was one of the robbers. The police searched
the residence and found many of the items that were taken from Robinson
and the taxi. The police also found a firearm.
Once at the police station, the police provided Stevens with Miranda2
warnings. Stevens denied participating in the robbery. He asserted that, on
the night in question, he had consumed some drugs and had fallen asleep.
He later admitted to the police that they had done a good job investigating
the crime, but that they would have done even better if they had caught the
other guy as well. When Stevens was processed at the jail for intake
purposes, the police found $160.00 in twenty-dollar bills in Stevens’ sock.
While in jail awaiting trial, Stevens made several phone calls that were
recorded, and ultimately intercepted and reviewed by the police. The jail
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
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posted signs that informed the inmates that their phone calls may be
intercepted, monitored, or divulged to law enforcement authorities. Stevens
was provided with an identification number for use during phone calls and a
release form, which he signed, indicating the same. Captain Mark
Rockovich, who was the head of intelligence and security at the jail, emailed
the assistant district attorney with the following information:
We do not have any written guidelines regarding monitoring
phone calls or visits. I am the only one in the prison that has
access to listen to phone calls directly. To assist in
investigations regarding matters of security for the prison, the
Warden or Deputy Warden will direct me to provide prison staff
with recordings for review. The procedure to obtain recordings
for law enforcement are made pursuant to Title 18 Section 5704,
(14)(1)(C), which permits disclosure of such intercepted
recorded material in response to a Court Order or in the
prosecution or investigation of any crime.
Simply put, the prison will listen when we believe there may be a
threat to security of our facility and we will give copies to law
enforcement with a court order or if they are investigating a
crime.
In the case of Gregory Stevens, a court order was signed by the
Honorable Judge Gartley on October 28th, 2013, directing me to
“turn over all of the telephone recordings, including visitor
communications from inmate Gregory Stevens, Jr. from the date
of incarceration, September 22nd, 2013 to October 29th of 2013.
The second recording provided to the Fairview Township Police
was from October 29th of 2013 to January 8th of 2014.[3]
____________________________________________
3
All of the evidence pertaining to the intercepted recordings, including
the signs and email, were introduced into the record via stipulation by the
parties.
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In the recordings, Stevens discusses the charges against him, as well as the
gun that was used during the robbery and assault. Furthermore, Stevens
admits on the recordings that he should not have pistol-whipped Robinson.
As noted, the trial court convicted Stevens of all charges. In doing so,
the trial court also specifically concluded beyond a reasonable doubt that
Stevens used a firearm during the commission of the robbery. On August
21, 2014, Stevens appeared for sentencing. Stevens argued that the trial
court was precluded from applying the deadly weapon enhancement in the
sentencing guidelines, inter alia, because of the United States Supreme
Court’s decision in Alleyne v. United States, 133 S.Ct 2151 (2013). The
trial court rejected Stevens’ arguments, and applied the deadly weapon
enhancement in sentencing Stevens. The court sentenced him to an
aggregate sentence of sixty months to one hundred and twenty months in
prison, to be followed by twenty-four months of probation.
On September 2, 2014, Stevens filed a motion to modify his sentence,
which the trial court denied by an order dated September 5, 2014, and filed
on September 9, 2014. On October 1, 2014, Stevens filed a notice of
appeal.4 In response, the trial court directed Stevens to file a concise
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4
On October 24, 2014, this Court issued a rule to show cause on
Stevens as to why this appeal should not be quashed as untimely. Stevens
had appealed orders that had not been entered into the docket, and, thus,
the appeal appeared to be untimely. Following subsequent orders from this
Court, the trial court entered the orders on the docket, which demonstrate
(Footnote Continued Next Page)
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statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Following an extension of time, Stevens filed a concise statement. On
December 22, 2014, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a).
Stevens raises the following six issues for our consideration:
1. Whether the trial court erred by denying [Stevens’] motion to
suppress where [Stevens] was illegally seized by officers who
lacked probable cause for an arrest and, in the alternative,
reasonable suspicion for an investigatory detention and all
evidence resulting from said illegal seizure, including the
identification, were fruit of the poisonous tree? [Stevens]
was illegally seized in violation of the Fourth Amendment to
the United States Constitution and Article I, Section 8 of the
Pennsylvania Constitution.
2. Whether the trial court erred by denying [Stevens’] motion to
suppress where [Stevens] was under arrest and denied his
right to an attorney at the in-person line up, in violation of
the Sixth Amendment to the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution, and all
evidence resulting from said illegal line up, including the
identification, were fruit of the poisonous tree?
3. Whether the trial court erred by refusing to suppress
intercepted recordings of [Stevens] where the
superintendent, warden, or a designee of the superintendent
or warden or other chief administrative official of the Luzerne
County Correctional Facility failed to promulgate guidelines to
implement the provisions of 18 Pa.C.S. § 5704(14)?
4. Whether [Stevens’] sentence is illegal because the
Pennsylvania deadly weapon enhancement to the sentencing
guidelines (204 Pa.Code § 303.10(a)(2)) is unconstitutional
under Alleyne v. United States as violative of [Stevens’]
_______________________
(Footnote Continued)
that Stevens’ appeal was timely. There is no jurisdictional impediment to
our review of this case.
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right to a jury trial pursuant to the Sixth Amendment to the
United States Constitution and Article I, Section 9 of the
Pennsylvania Constitution?
5. Whether the trial court erred by applying the Pennsylvania
deadly weapon enhancement to the sentencing guidelines
(204 Pa.Code § 303.10(a)(2)) where the Commonwealth
amended the information to make possession of a weapon an
element of the offense and the deadly weapon enhancement
shall not be applied where such element is part of the
statutory definition of the crime?
6. Whether the Commonwealth failed to present evidence
sufficient to demonstrate beyond a reasonable doubt that
[Stevens] committed separate conspiracies to commit
robbery, theft by unlawful taking, and simple assault, rather
than one conspiracy, where the totality of the circumstances
indicate that only a single conspiracy occurred?
Brief for Stevens at 2-4 (numbering added for ease of discussion and
disposition).
Stevens’ first three issues arise from the trial court’s denial of his pre-
trial suppression motion. Our standard of review for such claims is as
follows:
In addressing a challenge to a trial court’s denial of a
suppression motion, we are limited to determining whether the
factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. Since the
Commonwealth prevailed in the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole. Where the record
supports the factual findings of the trial court, we are bound by
those facts and may reverse only if the legal conclusions drawn
therefrom are in error.
Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013) (citation
omitted). Our scope of review in suppression matters includes only the
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suppression hearing record, and excludes any evidence elicited at trial. See
In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).
In his first issue, Stevens alleged that he was seized in violation of the
Fourth Amendment to the United States Constitution and Article I, Section 8
of the Pennsylvania Constitution when the police entered the residence on
Kirby Avenue and detained everyone inside. Stevens contends that the
interaction between him and the police constituted an arrest, but it was not
supported by probable cause. In the alternative, Stevens maintains that, if
the encounter was an investigatory detention, reasonable suspicion also was
lacking.
Our resolution of this claim necessarily depends upon the nature of the
encounter between Stevens and the police. Interactions between police and
citizens are broken down into three categories: mere encounters,
investigative detentions, and custodial detentions. Commonwealth v.
DeHart, 725 A.2d 633, 636 (Pa. Super. 2000). Each level requires a
distinct level of justification, depending upon the nature of the interaction
between the police and the citizen. Id. A mere encounter can be any
formal or informal interaction, and carries no official compulsion to stop and
respond. Thus, it does not require any level of suspicion. Commonwealth
v. Guzman, 44 A.3d 688, 692 (Pa. Super. 2012). An investigative
detention carries with it an official compulsion to stop and respond, and,
while temporary, must be justified by “specific and articulable facts creating
a reasonable suspicion that the suspect is engaged in criminal activity.”
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Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (quoting
Dehart, 725 A.2d at 636). An arrest, otherwise known as a custodial
detention, must be supported by probable cause. Id.
An encounter becomes an arrest when, under the totality of the
circumstances, a police detention becomes so coercive that it
functions as an arrest. The numerous factors used to determine
whether a detention has become an arrest are the cause for the
detention, the detention’s length, the detention’s location,
whether the suspect was transported against his or her will,
whether physical restraints were used, whether the police used
or threatened force, and the character of the investigative
methods used to confirm or dispel suspicions.
Commonwealth v. Stevenson, 894 A.2d 759, 770 (Pa. Super. 2006)
(citations omitted).
On the other hand:
“An investigative detention occurs when a police officer
temporarily detains an individual by means of physical force or a
show of authority for investigative purposes.” Commonwealth
v. Smith, 904 A.2d 30, 35 (Pa. Super. 2006) (quoting
Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super.
2005)). In other words, in view of all the circumstances, if a
reasonable person would have believed that he was not free to
leave, then the interaction constitutes an investigatory
detention. See Commonwealth v. Peters, 642 A.2d 1126,
1129 (Pa. Super. 1994) (quoting Commonwealth v. Harper,
611 A.2d 1211, 1215 (Pa. Super. 1992)); Commonwealth v.
Hill, 874 A.2d 1214, 1218-19 (Pa. Super. 2005) (quoting
Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa. Super.
2004)). An investigatory detention triggers the constitutional
protection of the Fourth Amendment to the United States
Constitution, Article I, Section 8 of the Pennsylvania
Constitution, and the prerequisites for such a detention as set
forth in Terry v. Ohio, 392 U.S. 1, 23–26, (1968); Smith, 904
A.2d at 35 (quoting Barber, 889 A.2d. at 592).
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An investigative detention is lawful if supported by reasonable
suspicion. Commonwealth v. Sands, 887 A.2d 261, 269 (Pa.
Super. 2005) (quoting Hill, 874 A.2d at 1217). “To meet the
standard of reasonable suspicion, the officer must point to
specific and articulable facts which, together with the rational
inferences therefrom, reasonably warrant the intrusion.” Smith,
904 A.2d at 35 (quotation omitted). In addition, “we must look
to the totality of the circumstances to determine whether the
officer had reasonable suspicion that criminal activity was afoot.”
Id. at 35–36 (quoting Barber, 889 A.2d at 593). An
investigative detention may last “as is necessary to confirm or
dispel such suspicion.” Commonwealth v. LaMonte, 859 A.2d
495, 500 (Pa. Super. 2004) (quoting Commonwealth v.
Strickler, 757 A.2d 884, 889 (Pa. 2000)).
Commonwealth v. Cauley, 10 A.3d 321, 325-26 (Pa. Super. 2010)
(citations modified; footnote omitted).
Under the circumstances of this case, no reasonable person would
have felt free to leave. However, that factor does not distinguish an
investigatory detention from an arrest. Both types of encounters curtail an
individual’s freedom of movement. We must consider the other factors
listed above. To do so, we first must review the facts elicited at the
suppression hearing.
On December 21, 2013, Stevens and four of his acquaintances called
and requested a taxi. The taxi, driven by Robinson, picked them up and
dropped three of them off in a lot adjacent to 66 Kirby Avenue. Stevens and
another man remained in the cab, and requested a ride to a convenience
store. They then requested that Robinson drive them back to the location
across from 66 Kirby Avenue. There, they beat Robinson with a gun and
took his belongings.
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The police investigated the robbery. At approximately 6:00 a.m. the
next morning, a mere seven hours after the robbery, someone called the
same taxi company from 66 Kirby Avenue and requested transportation.
The police suspected, due to the proximity in time and location from the
robbery, that the same individuals that had requested the cab earlier that
night had placed the call.
The police surrounded the residence and attempted to contact people
inside the home. Initially unsuccessful, the police contacted the owner of
the residence, who indicated that only her two children were permitted to be
in the residence when she was away. She also consented to the police
entering the home. Because they believed that the perpetrators of the
robbery may be inside, and because they knew that a firearm had been used
in the robbery, the police officers entered the residence with their weapons
drawn and announced their presence. The police found eight individuals
inside of the home. The police informed them that they were there to
investigate the robbery. The individuals then became angry and hostile,
yelling at the officers. Some of the individuals ignored orders to remain
where they were, and spread out throughout the residence.
After the individuals continued to ignore orders to remain in the living
room, the police handcuffed each of them, searched them for weapons, and
ordered them to remain in the living room until they received further
instruction from the officers. Cpl. Monk then spoke with each individual,
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requesting their names and dates of birth. Stevens was one of the
individuals that was detained in the living room.
Having considered these facts, and the applicable legal factors and
standards, we conclude that Stevens’ detention at 66 Kirby Avenue was an
investigative detention. Undeniably, Stevens was detained against his will
and handcuffed. But, those are only two factors, and neither is dispositive.
Stevens, and the others, were detained to investigate whether any of the
individuals were involved in the robbery. The cause of the detention was not
to permanently detain anyone, or to effectuate a formal arrest, but rather to
investigate. Stevens was not detained for an unreasonable amount of time,
nor was he transported in any meaningful way to another location. The
detention occurred inside a residence, one in which he was not permitted to
be, not in a police car or at the police station. No force or threat of force
was utilized against Stevens. Of course, the police had their service
weapons drawn during entry, but that clearly was for their safety given the
nature of the crime that they were investigating and the fact that a gun was
used in that crime. Finally, nothing about the character or the investigative
methods used by the police compellingly demonstrates that the encounter
rose to the level of an arrest.
To the contrary, the character of the investigation demonstrated that
the detention was not permanent, but rather was temporary and for the
purpose of determining the identity of the individuals inside the home and
whether they had participated in the robbery. For this reason in particular,
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and in conjunction with the reasons above, Stevens’ encounter with the
police was an investigatory detention.
Having so determined, we next must decide whether the investigative
detention was supported by reasonable suspicion. As noted, within a span
of seven hours, Stevens and his friends requested a taxi to a lot across the
street from 66 Kirby Avenue, the taxi driver had been beaten with a gun and
robbed, and then the same taxi service received a call from 66 Kirby
Avenue. The police reasonably concluded that these events were connected,
and possessed the requisite reasonable suspicion to justify the detention.
Hence, the trial court correctly concluded that Stevens was not
unconstitutionally detained.
In his second issue, Stevens maintains that Robinson’s on-scene
identification of him exiting 66 Kirby Avenue was unconstitutional, because,
according to Stevens, he was entitled to have counsel at the time of his
arrest and subsequent identification. Stevens primarily relies upon
Commonwealth v. Minnis, 458 A.2d 231 (Pa. Super. 1983), and
Commonwealth v. Richman, 320 A.2d 351 (Pa. 1974), both of which
stand for the proposition that the right to counsel attaches to identification
confrontations and procedures following warrantless arrests. However,
neither of these cases applies in the instant case, and his argument is
unavailing.
In Minnis, this Court held that “[i]n Pennsylvania, the right to counsel
attaches at the time of arrest and exists for identification confrontations
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occurring after arrest, except prompt on-the-scene confrontations.” Minnis,
158 A.2d at 234. Similarly, in Richman, the Pennsylvania Supreme Court
noted that “[t]o allow uncounseled lineups between warrantless arrests and
preliminary arraignment would only encourage abuse of the exigent
circumstances exception and under-cut our strong policy requiring warrants
whenever feasible.” Richman, 320 A.2d at 354. Both holdings make clear
that an actual arrest is a prerequisite to triggering the right to counsel for
line-up purposes. However, at the time of the identification in this case,
Stevens had not yet been arrested.
In the previous discussion, we determined that the events that
occurred inside of the residence did not amount to an arrest. Shortly after
those events, the police transported Robinson to the scene and placed him in
a police cruiser that was parked at the end of the driveway, approximately
fifty yards from the front door. The occupants of the home, including
Stevens, then were taken to the front door. Their handcuffs were removed.
Thus, Robinson never saw them restrained in any way. They were then told
that they were free to leave. Each walked out of the door and began
walking away from the premises. However, when Stevens exited the house,
Robinson immediately identified him as one of the perpetrators of the
robbery. It was only then that Stevens was placed under arrest.
Because Stevens had not yet been arrested at the time of the
identification, the right to counsel was not implicated, and he is not entitled
to the benefit of either of the two cases that he principally relies upon,
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Minnis and Richman. The trial court did not err by denying Stevens’
suppression motion on this claim.
In his third argument, Stevens claims that the trial court erred by not
suppressing the statements that he made during conversations that occurred
on the telephone when he was incarcerated prior to trial. Specifically,
Stevens maintains that the statements should have been suppressed
because no relevant person promulgated guidelines to comply with the
relevant portion of Pennsylvania’s Wiretap Act, 18 Pa.C.S.A. §§ 5701–82.
For the reasons set forth immediately below, Stevens is not entitled to relief.
Section 5704(14) of the Wiretap Act provides, in pertinent part, that:
It shall not be unlawful and no prior court approval shall be
required under this chapter for: ...
(14) An investigative officer, a law enforcement officer or
employees of a county correctional facility to intercept,
record, monitor or divulge any telephone calls from or to
an inmate in a facility under the following conditions:
(i) The county correctional facility shall adhere to the
following procedures and restrictions when intercepting,
recording, monitoring or divulging any telephone calls
from or to an inmate in a county correctional facility as
provided for by this paragraph:
(A) Before the implementation of this paragraph, all
inmates of the facility shall be notified in writing
that, as of the effective date of this paragraph, their
telephone conversations may be intercepted,
recorded, monitored or divulged.
(B) Unless otherwise provided for in this paragraph,
after intercepting or recording a telephone
conversation, only the superintendent, warden or a
designee of the superintendent or warden or other
chief administrative official or his or her designee, or
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law enforcement officers shall have access to that
recording.
(C) The contents of an intercepted and recorded
telephone conversation shall be divulged only as is
necessary to safeguard the orderly operation of the
facility, in response to a court order or in the
prosecution or investigation of any crime.
18 Pa.C.S.A. § 5704(14)(1)(A-C). The Act further mandates that “[t]he
superintendent, warden or a designee of the superintendent or warden or
other chief administrative official of the county correctional system shall
promulgate guidelines to implement the provisions of this paragraph for
county correctional facilities.” Id. § 5704(14)(iv).
From what we can glean from his argument, Stevens believes that
“promulgate” as used in subsection 5704(14)(iv) means written. In other
words, Stevens contends that, because none of the enumerated parties
created a written protocol for intercepting jail phone calls, any statements
obtained via those calls must be suppressed. We need not answer that
question specifically, because even if we assume, arguendo, that no relevant
person in this case “promulgated” guidelines, Stevens still has not
demonstrated that suppression is an available, or a justifiable, remedy.
Notably, Stevens does not claim that the purported error in this case
was constitutional in nature. Thus, we turn to the section of the Wiretap
Act, specifically 18 Pa.C.S. § 5721.1, which governs the available remedies
for nonconstitutional violations of the Wiretap Act:
(b) Motion to exclude.--Any aggrieved person who is a party
to any proceeding in any court, board or agency of this
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Commonwealth may move to exclude the contents of any wire,
electronic or oral communication, or evidence derived therefrom,
on any of the following grounds:
(1) Unless intercepted pursuant to an exception set forth
in section 5704 (relating to exceptions to prohibition of
interception and disclosure of communications), the
interception was made without prior procurement of an
order of authorization under section 5712 (relating to
issuance of order and effect) or an order of approval under
section 5713(a) (relating to emergency situations) or
5713.1(b) (relating to emergency hostage and barricade
situations).
(2) The order of authorization issued under section 5712 or
the order of approval issued under section 5713(a) or
5713.1(b) was not supported by probable cause with
respect to the matters set forth in section 5710(a)(1) and
(2) (relating to grounds for entry of order).
(3) The order of authorization issued under section 5712 is
materially insufficient on its face.
(4) The interception materially deviated from the
requirements of the order of authorization.
(5) With respect to interceptions pursuant to section
5704(2), the consent to the interception was coerced by
the Commonwealth.
(6) Where required pursuant to section 5704(2)(iv), the
interception was made without prior procurement of a
court order or without probable cause.
18 Pa.C.S. § 5721.1(b)(1-6). Pursuant to subsection 5721.1(e), “[t]he
remedies and sanctions described in this subchapter with respect to the
interception of wire, electronic or oral communications are the only judicial
remedies and sanctions for nonconstitutional violations of this subchapter
involving such communications.” 18 Pa.C.S. § 5721.1(e).
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Subsection 5721.1(b) delineates the six nonconstitutional grounds for
which suppression is an available remedy. If a defect in a wiretap
interception is not a constitutional error or is not one of those six grounds, a
trial court may not suppress evidence that resulted from the interception.
As noted, Stevens does not raise a constitutional argument. Thus, he
must demonstrate that the error for which he complains falls within one of
the six enumerated categories. However, Stevens presents no argument
whatsoever that any of the six grounds applies. In fact, Stevens does not
cite subsection 5721.1 at all. Consequently, even if his principal argument
were meritorious, he has not demonstrated that suppression would be the
correct remedy, and, therefore, has not proven that he is entitled to that
form of relief.
In his fourth issue, Stevens contends that his sentence, which the trial
court formulated using the deadly weapon enhancement rubric in the
sentencing guidelines, is illegal. Stevens maintains that the application of
the enhancement was unconstitutional pursuant to the United States
Supreme Court’s decision in Alleyne, wherein the Court held that any fact
that increases the mandatory minimum sentence for crime is an “element”
of the crime, not a “sentencing factor,” that must be submitted to a jury to
determine the validity thereof. Alleyne, 133 S.Ct. at 2162. Stevens
recognizes that, in Commonwealth v. Ali, 112 A.3d 1210 (Pa. Super.
2015), this Court already has held that Alleyne has no application to the
school zone or youth sentencing enhancements. We so held because:
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[t]he enhancements do not bind a trial court to any particular
sentencing floor, nor do they compel a trial court in any given
case to impose a sentence higher than the court believes is
warranted. They require only that a court consider a higher
range of possible minimum sentences. Even then, the trial court
need not sentence within that range; the court only must
consider it. Thus, even though the triggering facts must be
found by the judge and not the jury—which is one of the
elements of an Apprendi [v. New Jersey, 120 S.Ct. 2348(2000)] or Alleyne analysis—the enhancements [] are not
unconstitutional under Alleyne.
Ali, 112 A.3d at 1226. Stevens urges us to reconsider the Ali analysis as it
applies to the deadly weapon enhancement.
We do not have the authority, nor the inclination, to overrule Ali.
Moreover, the deadly weapon enhancement, like the school and youth
enhancements, imposes no mandatory minimum sentence. Like those other
enhancements, it only directs the trial court to consider a different range of
potential minimum sentences by adding months of incarceration to the low
and high ends of the guideline range. The trial court retains the discretion to
fashion an individual sentence, and is not required to sentence an individual
within that specified range. Consequently, Alleyne has no application to
this case, and Stevens’ claim necessarily fails.
Stevens also argues that the trial court erroneously applied the deadly
weapons enhancement because “the Commonwealth made ‘with a deadly
weapon’ one of the statutory elements of robbery with which [] Stevens was
charged.” Brief for Stevens at 31-32. Indeed, and confusingly, the
Commonwealth added that language to the definition of robbery in the
criminal information. Stevens also correctly notes that, pursuant to the
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sentencing guidelines, “[t]here shall be no Deadly Weapon Enhancement for
. . . any other offense for which possession of a deadly weapon is an
element of the statutory definition.” 204 Pa.Code § 303.10(a)(3)(ix).
However, this proscription refers only to the elements of the “statutory
definition.” The definition of robbery in the Crimes Code does not include
the element of the use of a deadly weapon. See 18 Pa.C.S. § 3701. The
Commonwealth cannot change or alter that definition simply by adding
language to a particular criminal information. The proscription does not
refer to the language used by the Commonwealth in a criminal information,
nor does it make such an alteration available. Stevens does not cite any
case law that stands for the proposition that, for purposes of the application
of the enhancement, the “statutory definition” of a crime is based upon the
manner in which Commonwealth frames a charge in a criminal information,
and we are aware of none. Stevens has not demonstrated that he is entitled
to relief on this claim.
In his final claim, Stevens challenges the sufficiency of the evidence
presented by the Commonwealth to establish that he entered into three
separate conspiracies, one each for robbery, theft, and simple assault. Our
standard of review is well-settled:
The standard we apply . . . is whether viewing all the evidence
admitted at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
[the above] test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
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not preclude every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).
Stevens concedes that the evidence was sufficient to prove beyond a
reasonable doubt that he was guilty of conspiracy to commit robbery. See
Brief for Stevens at 34 (“In the instant matter, it is clear that the evidence
was sufficient to demonstrate only that a single conspiracy existed between
[] Stevens and the other suspect to carry out actions aimed at removing
property from the cab driver by force.”). However, he maintains that only
the robbery conspiracy existed, and that the evidence did not prove
otherwise. The Commonwealth agrees. In its brief, the Commonwealth
“concedes that there was insufficient evidence to establish separate
conspiracies for theft and simple assault.” Brief for the Commonwealth at
16.
Because of the Commonwealth’s concession, we vacate Stevens’
judgment of sentence as to conspiracy to commit theft and conspiracy to
commit simple assault. We agree with the Commonwealth and Stevens that
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the evidence was insufficient to prove separate, individual conspiracies to
commit each of those crimes. Nonetheless, we need not remand for
resentencing. Stevens only was sentenced on the conspiracy to commit
robbery conviction. The trial court concluded that the conspiracies to
commit theft and simple assault merged with the conspiracy to commit
robbery. Hence, there is no reason to remand for resentencing, because our
decision to vacate those two crimes does not upset the trial court’s
sentencing scheme in any way.
Judgment of sentence affirmed in part, vacated in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2015
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