Com. v. Akbar, H. (opinion)

Annotate this Case

Download PDF

J-S48002-13 2014 PA Super 89 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. HASSAN AKBAR Appellant No. 3451 EDA 2010 Appeal from the Judgment of Sentence July 12, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007173-2009 BEFORE: GANTMAN, J., DONOHUE, J., and PLATT, J.* OPINION BY GANTMAN, J.: FILED APRIL 30, 2014 Appellant, Hassan Akbar, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for aggravated assault, criminal conspiracy to commit aggravated assault, persons not to possess firearms, and possessing instruments of crime.1 judgment of sentence and remand for resentencing. The relevant facts and procedural history of this case are as follows. On November 13, 2008, Regina Holmes and Kemp Carter were on their way ____________________________________________ 1 18 Pa.C.S.A. respectively. §§ 2702(a)(1), 903(a)(1), 6105(a)(1), _________________________ *Retired Senior Judge assigned to the Superior Court. and 907(a), J-S48002-13 Holmes noticed a car parked in the street with two black males sitting inside. After Ms. Holmes and Mr. Carter parked their car, they walked toward Mr. behind them. Appellant directed Mr. Carter and Ms. Holmes to walk into the house, while Appellant and Mr. Lewis followed. Ms. Holmes and Mr. Carter turned to face the two men and saw they had guns in their hands. Appellant pointed his gun to the ground and fired two shots. Mr. Carter told Ms. Holmes to duck, pushed her into the screen door, and ran away. Mr. Lewis fired approximately six shots at Mr. Carter, shooting him in the stomach. Immediately, Appellant and Mr. Lewis fled the scene, and Ms. Holmes called 911. When police arrived, Ms. Holmes gave a description of the shooters. Police later received information about a vehicle possibly linked to the shooting. The next day, police located the suspicious vehicle, conducted a traffic stop, and apprehended Mr. Lewis. In custody, Mr. Lewis made a statement to police, and admitted he had participated in the shooting. Mr. Lewis also implicated Appellant, explaining that Appellant knew Mr. Carter was a drug dealer and carried large sums of cash, so Appellant decided he and Mr. Lewis would rob Mr. Carter. Mr. Lewis also explained to police the details of the shooting and implicated Appellant. In the days after the shooting, Ms. Holmes and Mr. Carter identified Appellant and Mr. Lewis in -2- J-S48002-13 photo arrays. Police obtained an arrest warrant for Appellant and assigned police apprehended Appellant during a traffic stop. Procedurally: On December 2, 2008, [Appellant] was arrested and charged with aggravated assault, criminal conspiracy to commit aggravated assault, robbery, attempted burglary, attempted theft, possession of a firearm by a prohibited person, firearms not to be carried without a license, carrying firearms in public, possessing instruments of crime, terroristic threats, simple assault, and recklessly endangering another person. On April 5-14, 2010, [the court] conducted a trial in the presence of a jury. [On April 7, 2010, defense counsel co-defendant; and the court denied the motion.] On April 14, 2010, the jury found [Appellant] guilty of aggravated assault, criminal conspiracy, possession of a firearm by a prohibited person and possessing instruments of crime. On July 12, 2010, [the trial court] sentenced [Appellant] to assault charge, 1 a firearm by a prohibited person, to run consecutively. [Appellant] was sentenced to no further penalty on the possessing instruments of crime charge. This resulted in incarceration. -Sentence Motion, which was subsequently dismissed by operation of law on November 22, 2010. On December 15, 2010, defense counsel filed a Notice of Appeal to the Superior Court. On March 2, 2011, upon receipt of all notes of testimony, [the trial court] ordered that defense counsel file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). However, due to serious illness, counsel did not file a [Rule] 1925(b) statement -3- J-S48002-13 until May 20, 2011, after an extension had been granted by [the trial court]. (Trial Court Opinion, filed December 6, 2012, at 2-3). Appellant subsequently obtained new counsel for appeal and sought permission to file request on June 8, 2012, and remanded the matter to the trial court for the Appellant filed his supplemental Rule 1925(b) statement. Appellant raises the following issues for our review: REQUEST TO SEVER HIS TRIAL FROM HIS CO-DEFENDANT AND IN REFUSING TO GIVE THE REDACTION REQUESTED THE TRIAL COURT ERRED IN REFUSING TO GIVE A PLAYED THE 911 AND POLICE RADIO TAPES. THE TRIAL COURT ATTORNEY AND THE TESTIFYING POLICE OFFICER PUT INTO EVIDENCE THAT APPELLANT HAD A PHILADELPHIA PHOTO NUMBER. THE TRIAL COURT [APPELLANT] TO TWO SENTENCING. ERRONEOUSLY SENTENCED MANDATORY MINIMUMS AT shifted all of the blame surrounding the November 13, 2008 shooting to Appellant. Appellant acknowledges that the parties redacted Mr. L -4- J-S48002-13 statement to remove any direct references to Appellant. Nevertheless, Appellant claims the redacted statement still prejudiced him because the statement included references to another man having a gun, firing a shot, . Appellant insists the jury naturally inferred Mr. Lewis and Appellant sat side-by-side at trial as the only accused persons. Appellant maintains the other evidence against Appellant, in the absence of rises above harmless error, unduly prejudiced him and denied him a fair trial. Appellant concludes the court erred in denying his motion to server, and this Court should remand the case for a new trial separate from Mr. Lewis. We disagree. discretion, and will Commonwealth v. Birdsong, 611 Pa. 203, ___, 24 A.3d 319, 336 (2011). Joint trials are favored when judicial economy will be served by avoiding the expensive and time-consuming duplication of evidence, and where the defendants are charged with conspiracy. [T]he mere fact that there is hostility between defendants, or that one may try to save himself at the expense of another, is in itself not sufficient grounds to require separate trials. In fact, it has been asserted that the fact that defendants have conflicting versions of what took place, or the extents to which they participated in it, is a -5- J-S48002-13 reason for rather than against a joint trial because the truth may be more easily determined if all are tried together. Id. (internal citations and quotation marks omitted) (emphasis in original). Commonwealth v. Rivera, 565 Pa. 289, 299, 773 A.2d 131, 137 (2001), cert. denied, 535 U.S. 955, 122 S.Ct. 1360, 152 L.Ed.2d 355 (2002). A defendant is deprived of his Sixth Amendment rights when his non-testifying cofacially incriminating confession is introduced at their joint trial, even if the jury is instructed that the confession can be considered only against the confessing co-defendant. Id. so that it retains its narrative integrity and yet in no way refers to [the nonconfessing] defendant, then use of it does not violate the principles of 2 Bruton[ v. U.S. Commonwealth v. Travers, 564 Pa. 362, 368, 768 A.2d 845, 848 (2001). In Travers, our Supreme Court held that the redaction of a nontestifying coreference to the non-confessing co-defendant with a neutral pronoun, when ____________________________________________ 2 In Bruton, the United States Supreme Court held that admission of a facially incriminating confession by a non-testifying co-defendant introduced at the defendant and co-def Sixth Amendment right to confrontation, even where the court instructs the jury to consider the confession only against the co-defendant. Id. at 13537; 88 S.Ct. at 1627-28; 20 L.Ed.2d at ____. -6- J-S48002-13 accompanied by an appropriate cautionary charge, sufficiently protected the 3 non- Travers, supra at 372-73, 768 A.2d at 851. The Travers Court observed Pennsylvania law is now clear that redacted statements trigger confrontation clause concerns under Bruton only if the redacted statement on its face ties the defendant to the crime, but not if the incrimination arises from linkage to other evidence in the case. Id. at 372 n.2, 768 A.2d at 850 n.2 (citing Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998)). When the redacted statement is not powerfully incriminating on its face, however, instructions controls. Travers, supra. Moreover, even where a redacted confession violates Bruton, its admission might be harmless error if other guilt. Commonwealth v. McGlone, 716 A.2d 1280, 1284 (Pa.Super. 1998), cert. denied, 528 U.S. 932, 120 S.Ct. 332, 145 L.Ed.2d 259 (1999). Instantly, prior to trial, Appellant moved to sever his case from Mr. agreed to redact Mr ____________________________________________ 3 In Travers, the direct references to the non-confessing defendant contained in his co- -7- J-S48002-13 statement into the record as follows: He told me the person he was waiting on was supposed to have a lot of money on him, he said [he was] going to rob him. He told me the guy was a drug dealer and sold marijuana. He told me he probably would have about 10him. He said he would give m[e] a breakdown on some of the money. He stand there and watch his back, make sure nobody like looking around the area. I knew he had a gun on him, I could see the butt of the gun sitting out of his shirt. The victim drove by [in a] silver Mercedes Benz, pulled into his alleyway. As he was walking around the corner to go to his house he was with a skinny girl, real light skin or white, they were going up the steps. He ran up before me on the steps behind them. I walked over there and I was standing on the steps. He was on the top level of the steps, I was on the bottom level of the steps. when he started shooting. I ran down off the steps, both of us were running in the same direction. We ran around the corner and we split up. He ran one way, I ran the other. I stood around five to ten minutes, the cop[s] were flying around. I had to wait around because the cops was still in the area. The cops were on the block on the scene, I went home and got something to eat. I was up for a minute thinking about what happened, probably fell asleep between 3:00 and 4:00 a.m. I was thinking about what happened and was I going to get in trouble for this situation. (N.T. Trial, 4/8/10, at 30-31). Significantly, the court redacted eighty-six direct references to Appellant. (See N.T. Trial, 4/7/10, at 8-12.) Regarding -8- J-S48002-13 to fully redact a portion of the statement and instead used. the Defense counsel conceded that the use of the appropriate way to handle the redaction of To s] rights were protected, whole lines that could not be redacted without causing [4] completely. This ensured that the statement flowed seamlessly; therefore, the jury would not automatically assume that there was something in the statement that referred to [Appellant] to which they were not made privy. (Trial Court Opinion at 18- Bruton, when acco two cautionary instructions to and not as evidence against or implicating Appellant.5 The jury is presumed ____________________________________________ 4 constitute an appropriate method to redact an incriminating statement, because Appellant was only one of two cowould nevertheless be powerfully incriminating against Appellant in this situation. 5 The court issued the following cautionary instruction during the -inhe took from Darnell Lewis, I instructed you that was evidence offered to show that Darnell Lewis made a statement concerning the crimes charged and may be considered by you only as evidence against Darnell Lewis. You may not use the statement in any way whatsoever [as] evidence against or referring to in any way to [Appellant]. Insofar as it concerns your ultimate (Footnote Continued Next Page) -9- J-S48002-13 See Travers, supra.6 Moreover, the court noted: In the case at bar, any prejudice to [Appellant] was de minimus and the properly admitted uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. The record showed that [Ms.] Holmes testified to seeing both [Appellant] and [Mr.] Lewis with guns in hand. Further, [Ms.] Holmes testified that [Appellant] demanded that all four go i Holmes testified to seeing [Mr.] Lewis shoot at [Mr.] Carter. She testified to her own feeling of fear for both her as to which man shot him, but he testified that he definitely saw each man with a gun in hand after hearing one of them demand that all four go inside the house and [Appellant] fired a shot at the ground. He testified to being in fear that he would be killed. He further testified that he suffered a gunshot wound through his left flank, left stomach. Therefore, even if the admission of the properly redacted statement was done in error, it was (Footnote Continued) _______________________ consideration of the charges against [Appellant] the statement of Darnell The court issued an additional cautionary instruction after the defense rested, during its final instruction instructed you of the limited basis for your use of the statement made by Darnell Lewis. The statement made by Darnell Lewis may be considered by you only as evidence against Defendant Darnell Lewis. You must not speculate, guess, conjecture, consider or infer or use the statement in any way whatsoever as evidence against or concerning or referring in any way to [Appellant]. Insofar as concerning your consideration of the charges against [Appellant], the sta 4/13/10, at 88-89). 6 was only one of two co-defendants at trial is inaccurate; Travers also involved only two co-defendants. See id. - 10 - J-S48002-13 harmless because of overwhelming evidence that both [Mr. Lewis] and [Appellant] participated in the shooting as demonstrated through eyewitness testimony. (Trial Court Opinion at 20). Additionally, both Ms. Holmes and Mr. Carter identified Appellant in a photo array a few days after the shooting incident. The Commonwealth also introduced evidence at trial expressly refuting Bruton, admission of the statement nevertheless constituted harmless error due to the other independent, overwhelming evidence that established See McGlone, supra. Thus, the court properly denied relief. See Birdsong, supra. In his second issue, Appellant asserts the Commonwealth introduced two audio tapes at trial from the night of the November 13, 2008 shooting: (1) an anonymous 911 call placed by a woman shortly after the shooting, explaining she had observed a suspicious car parked on the street where the shooting took place between 10:00 p.m. until the time of the shooting; the woman reported the license plate number of the vehicle to police; and (2) a police broadcast recording a call from a police dispatcher to an officer investigating the crime scene, in which the dispatcher provided the officer with the license plate number given by the woman on the 911 call. Appellant argues these tapes constituted untrustworthy and unreliable - 11 - J-S48002-13 evidence. Appellant insists the tapes evidenced A court improperly admitted them without giving Appellant the opportunity to Confrontation Clause rights under the Sixth Amendment. Appellant also maintains the Com conduct did not raise an issue of suppression. Appellant concludes the court should have excluded the tapes or, alternatively, issued a cautionary jury instruction; and this Court should reverse. We disagree. Preliminarily, we observe that to preserve a claim of error for appellate review, a party must make a specific objection to the alleged error before the trial court in a timely fashion and at the appropriate stage of the proceedings; failure to raise such objection results in waiver of the underlying issue on appeal. Commonwealth v. Charleston, 16 A.3d 505 (Pa.Super. 2011), appeal denied, 612 Pa. 696, 30 A.3d 486 (2011); Commonwealth v. Shamsud-Din, 995 A.2d 1224 (Pa.Super. 2010). See also Commonwealth v. Arroyo, 555 Pa. 125, 142, 723 A.2d 162, 170 (1999) (explaining if ground upon which objection is based is specifically stated, all other reasons for its exclusion are waived). Instantly, the Commonwealth introduced at trial a 911 audio recording and a police broadcast from the night of the shooting. Appellant specifically objected to the admission of these tapes as hearsay and asked for a - 12 - J-S48002-13 cautionary instruction to the jury to consider the evidence on the tapes only information provided on the tapes. (See N.T. Trial, 4/9/10, at 8-20). Significantly, Appellant did not object on confrontation clause grounds. As a result, Appellant waived his confrontation clause argument on appeal. See Arroyo, supra; Charleston, supra; Shamsud-Din, supra. Additionally, Appellant requested a hearsay cautionary instruction at trial, but he cites no authority on appeal to support his assertion that the and his argument surrounding this claim is woefully undeveloped. Thus, this claim is also waived. See Commonwealth v. Johnson, 604 Pa. 176, 985 A.2d 915 (2009), cert. denied, ___ U.S. ___, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010) (explaining appellant waives issue on appeal where he fails to present claim with citations to relevant authority or develop issue in meaningful fashion capable of review). Moreover, to the extent Appellant advances his hearsay argument on evidence is well established and very narrow: Admission of evidence is a matter within the sound discretion of the trial court, and will not be reversed absent a showing that the trial court clearly abused its discretion. Not merely an error in judgment, an abuse of discretion occurs when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence on record. - 13 - J-S48002-13 Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009) (internal citations and quotation marks omitted), cert. denied, ___ U.S. ___, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010). testifying at the trial or hearing, offered in evidence to prove the truth of the Commonwealth v. Dent, 837 A.2d 571, 577 (Pa.Super. 2003), appeal denied, 581 Pa. 671, 863 A.2d 1143 (2004); Pa.R.E. 801(c). Nevertheless, certain out-of-court statements offered to explain the course of police conduct are admissible; such statements do not constitute hearsay because they are offered not for the truth of the matters asserted but merely to show the information upon which police acted. Dent, supra at 577-79. See also Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980) (holding content of police radio call did not constitute hearsay where Commonwealth introduced call to explain police conduct and not to prove truth of content of tape). introduction of the 911 call and the police broadcast on hearsay grounds. The Commonwealth maintained it introduced the recordings to show how police obtained information regarding the suspiciou evidentiary ruling. See Montalvo, supra. - 14 - J-S48002-13 In his third issue, Appellant asserts the Commonwealth presented testimony from Officer Ayres indicating that another officer had provided him 7 Appellant argues the jury inferred from the reference to his photo number moved for a mistrial, but the court overruled his objection and denied the mistrial was improper, and this Court should grant Appellant a new trial. We disagree. a motion for mistrial is as follows: A motion for a mistrial is within the discretion of the trial court. A mistrial upon motion of one of the parties is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and determine whether a defendant was prejudiced by the ____________________________________________ 7 Philadelphia Photo Number most likely means that the defendant has prior convictions. It is hard to believe that there is a person in Philadelphia much less a conglomeration of twelve who does not have a friend, [acquaintance, or] relative who has not come in contact with the criminal justice system a understand[s] that a Philadelphia Photo Appellant provides absolutely no support for his bald assertions, we will give this particular aspect of his claim no further attention. See Johnson, supra. - 15 - J-S48002-13 incident that is the basis of a motion for a mistrial. On appeal, our standard of review is whether the trial court abused that discretion. Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003) (internal citations and footnote omitted). is per se Commonwealth v. Davis, 861 A.2d 310, 322 (Pa.Super. 2004), appeal denied, 582 Pa. 708, 872 A.2d 171 (2005). prejudicial error unless the references or statements imply prior criminal Id. See also Commonwealth v. Young, 578 Pa. 71, 849 A.2d based on testimony by detective that police showed eyewitness photographs of individuals who had prior contact with police, and eyewitness identified conduct where prior contact with police could have occurred under variety of circumstances which were not criminal in nature including involvement with photo number was mere passing reference that did not imply prior criminal conduct by appellant). Instantly, the Commonwealth questioned Officer Ayers about the report he had received before arresting Appellant. Officer Ayers referenced - 16 - J-S48002-13 [THE COMMONWEALTH]: Did you receive information prior to December 2nd, 2008, of an arrest warrant that had been generated for [Appellant]? [OFFICER AYERS]: Yes. [THE COMMONWEALTH]: Do you see sitting in the courtroom here today, sir? [OFFICER AYERS]: cream shirt. that individual Yes, the gentleman in the white [THE COMMONWEALTH]: Indicating for the record, Police Officer Ayres identified [Appellant]. [THE COMMONWEALTH]: Did you have [Appellant] prior to December 2008? contact with [OFFICER AYERS]: information of Detective Valentine of Southwest Detectives in reference to a warrant that was issued for [Appellant] from the captain in the 12th District. [THE COMMONWEALTH]: Did he show you a picture of [Appellant]? [OFFICER AYERS]: number. He gave me a copy of his photo (N.T. Trial, 4/9/10, at 38-39). Counsel immediately objected after this exchange and moved for a mistrial, which the court denied. There was no error committed when this court denied motion for a mistrial when a police officer testified that [Appellant] had a photo number. * * - 17 - * J-S48002-13 In the case at bar, Officer Ayers testified that he recovered A juror would not reasonab number related to a warrant. ... Accordingly, this [c]ourt (Trial Court Opinion at 22-23). We agree that the jury could not reasonably that Appellant had a prior criminal record. See Young, supra. The record See Tejeda, supra. In his fourth issue, Appellant asserts the court imposed a mandatory minimum ten (10) year sentence for his aggravated assault conviction per 42 Pa.C.S.A. § 9714(a)(1) (also kno (providing for mandatory minimum ten year sentence for defendant convicted of crime of violence, if at time of commission of current offense, defendant had previously been convicted of crime of violence). Likewise, App mandatory minimum ten (10) year sentence for his conspiracy to commit aggravated assault conviction. Appellant argues the law in this jurisdiction strictly prohibits a court from imposing a second strike sentence under Section 9714(a)(1), and an additional mandatory minimum sentence in the - 18 - J-S48002-13 provision) (providing for mandatory minimum twenty-five year sentence for defendant convicted of crime of violence, if at time of commission of current offense, defendant had previously been convicted of two or more crimes of violence arising from separate criminal transactions). Appellant maintains the reasoning behind the prohibition on imposing a second strike and a third strike mandatory minimum sentence in the same case is to afford a defendant an opportunity for reform before imposing a subsequent strike. By this logic, Appellant insists the court also cannot impose two second strike mandatory minimum sentences in the same case, as the court did here, because Appellant had no opportunity for reform before imposition of imposition of two mandatory minimum second strike sentences under Section 9714(a)(1) was improper, and this Court must remand for resentencing.8 Our standard of review is as follows: ____________________________________________ 8 This precise issue is currently pending before the Pennsylvania Supreme Court. See Commonwealth v. Fields, 29 A.3d 847 (Pa.Super. 2011) (unpublished memorandum), appeal granted, ___ Pa. ___, 64 A.3d 628 (2013) (granting petition for allowance of appeal to determine whether imposition of four, consecutive second strike sentences under Section 9714(a)(1) is illegal, where sentences arose from single criminal episode and defendant had no opportunity for reform before imposition of each serial second strike sentence). - 19 - J-S48002-13 Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Issues relating to the legality of a sentence are questions of law, as are claims raising a 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, 617 Pa. 629, 53 A.3d 756 (2012) (quoting Commonwealth v. Brougher authorization exists for a particular sentence, that sentence is illegal and Commonwealth v. Watson, 945 A.2d 174, 178-79 (Pa.Super. 2008). The Pennsylvania Sentencing Code provides, in relevant part, as follows: § 9714. offenses (a) Sentences for second and subsequent Mandatory Sentence. (1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon a second conviction for a crime of violence, the court shall give the person oral and written notice of the penalties under this section for a third conviction for a crime of violence. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2). - 20 - J-S48002-13 (2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole. 42 Pa.C.S.A. § 9714(a)(1), (a)(2). Section 9714(g) expressly lists aggravated assault under Section 2702(a)(1) and conspiracy to commit aggravated assault under Section 2702(a)(1) as crimes of violence for purposes of the statute. See 42 Pa.C.S.A. § 9714(g). Pennsylvania law makes clear Section 9714 espouses the recidivist philosophy. Commonwealth v. Shiffler, 583 Pa. 478, 493, 879 A.2d 185, 194 (2005); Commonwealth v. Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008); Commonwealth v. Merolla, 909 A.2d 337 (Pa.Super. 2006); Commonwealth v. Bell, 901 A.2d 1033 (Pa.Super. 2006), appeal denied, 592 Pa. 757, 923 A.2d 409 of events: first offense, first conviction, first sentencing, second offense, Commonwealth v. Dickerson, 533 Pa. 294, 299, 621 A.2d 990, 992 (1993). When closely examining the e intended - 21 - J-S48002-13 to apply sentencing enhancements for all crimes arising from a criminal Commonwealth v. McClintic, 589 Pa. 465, 481, 909 A.2d 1241, 1251 vist logic, each strike that serves as a predicate offense must be followed by sentencing and, by necessary implication, an opportunity for reform, before the offender commits the next strike Id. at 483, 909 A.2d at 1252 (emphasis added). [t]he point of sentence enhancement is to punish more severely offenders who have persevered in criminal activity despite the theoretically beneficial effects of penal discipline Shiffler, supra larly salient here is the implicit link between enhanced punishment and behavioral reform, and the notion that the former should correspondingly increase along with a Id. Instantly, following a single criminal episode, the court imposed two second strike sentences under Section 9714(a)(1): a ten (10) year and a consecutive ten (10) year mandatory minimum sentence for criminal conspiracy conviction.9 Under the applicable legislation, ____________________________________________ 9 The parties stipulated at sentencing that Appellant had a previous conviction for a crime of violence as defined in Section 9714(g). We are Alleyne v. United (Footnote Continued Next Page) - 22 - J-S48002-13 as well as the recidivist philosophy associated with the statute, Appellant should not have received an enhanced sentence for the criminal conspiracy conviction, where Appellant had no intervening opportunity to reform between the aggravated assault offense and the criminal conspiracy offense. See McClintic, supra; Shiffler, supra; Dickerson, supra; 42 Pa.C.S.A. § 9714. Pursuant to this law, the trial court had statutory authority to impose one secondlacked authority to impose a second enhanced sentence for any of the other convictions, absent an intervening opportunity to reform. See McClintic, supra; Shiffler, supra. Thus vacated. See Watson, supra. Upon remand, the court shall impose one secondimpose another sentence per Section 9714 on any of the other convictions. (Footnote Continued) _______________________ States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), in which the Court held that any fact that increases a mandatory minimum sentence for a submitted to the fact-finder. See id. The Alleyne Court, however, noted: Almendarez Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), we recognized a narrow exception to [the] general rule for the fact of a prior conviction. Because the parties do not contest Alleyne, supra at ____ n.1, 133 S.Ct. at 2160 n. 1. No Pennsylvania case has applied Alleyne to sentences enhanced solely by prior convictions. Therefore, we see no issue implicating the legality of Alleyne stipulation. - 23 - J-S48002-13 judgment of sentence and remand for resentencing. Judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/30/2014 - 24 -

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.