J-S76042-16

                                  2016 PA Super 224

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                        v.

TYRICE GRIFFIN

                             Appellant                       No. 241 EDA 2016


           Appeal from the Judgment of Sentence December 3, 2015
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0008440-2014
                                         CP-46-CR-0009241-2013


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                             FILED OCTOBER 18, 2016

        Appellant Tyrice Griffin appeals from the judgment of sentence entered

by the Court of Common Pleas of Montgomery County after Appellant was

convicted of three counts each of robbery, conspiracy, firearms not to be

carried without a license, and person not to possess firearms.1              Appellant

contends that the trial court erred in imposing consecutive mandatory

minimum sentences for his multiple robbery and conspiracy convictions

pursuant     to   the   second-strike      provision   of   Pennsylvania’s   recidivist

sentencing statute.          In addition, Appellant argues the sentencing court

abused its discretion in imposing the consecutive sentences. We affirm.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. §§ 3701(a)(1)(ii), 903(a)(1), 6106(a)(1), and 6105(a)(1),
respectively.
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      Appellant and his co-defendant, Carlos Garcia, were charged in

connection with three armed robberies committed on October 8, 2013,

October 12, 2013 and November 4, 2013, respectively, where Appellant and

Garcia held up restaurants and bars located in Lancaster, Cumberland, and

Montgomery Counties.      The Montgomery County District Attorney’s Office

received permission from the Lancaster and Cumberland District Attorneys

to prosecute Appellant for the robberies committed in the three counties.

      Appellant was charged with the aforementioned offenses in two

separate bills that were subsequently consolidated for trial.    On June 12,

2015, a jury convicted Appellant of three counts each of robbery, conspiracy,

and firearms not to be carried without a license. As the parties agreed to

have a bifurcated trial in which Appellant waived his right to a jury on select

charges, the trial court then convicted Appellant of three counts of person

not to possess a firearm. Prior to sentencing, the Commonwealth notified

Appellant of its intent to seek mandatory sentences under Pennsylvania’s

recidivism statute (42 Pa.C.S. § 9714 – sentences for second and

subsequent offenses).

      On December 3, 2015, the trial court held a sentencing hearing at

which the parties agreed that Appellant was subject to the second-strike

offender portion of Section 9714 based on Appellant’s prior third-degree

murder conviction.      As such, the trial court imposed six second-strike

mandatory minimum sentences of ten to twenty years imprisonment for

Appellant’s robbery and conspiracy convictions. All six sentences were set to

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run consecutively.    The trial court imposed no further penalty for the

firearms convictions. As such, Appellant received an aggregate sentence of

60 to 120 years’ imprisonment.

      On December 11, 2015, Appellant filed a post-sentence motion which

the trial court denied on December 16, 2015.         Appellant filed a notice of

appeal on January 14, 2016.           Appellant complied with the trial court’s

direction to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      Appellant raises two issues for our review:

      I.    Whether the trial court erred in imposing separate
            consecutive “second strike” sentencing enhancements for
            each of the offense of conspiracy and each of the
            underlying crimes which were the object of that
            conspiracy?

      II.   Whether the sentencing court abused its discretion in
            imposing an aggregate sence [sic] of sixty to one hundred
            an [sic] twenty years sentence a conspiracy to (10) year
            sentences for each “crime of violence” arising out of the
            same criminal episode or transaction?

Appellant’s Brief, at 5 (verbatim).

      Appellant asserts that the trial court erred in imposing multiple

second-strike sentencing enhancements for his convictions of robbery and

conspiracy to commit robbery.          Section 9714 of the Sentencing Code

provides, in relevant part:

      (a)   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

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     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 ...

42 Pa.C.S. § 9714(a)(1).

     In a recent decision in Commonwealth v. Fields, --- Pa. ---, 107

A.3d 738 (2014), the Supreme Court interpreted the language of Section

9714(a)(1) to provide that multiple crimes of violence committed in the

same criminal episode are each subject to the statutory sentencing

enhancement for second-strike offenders. The Supreme Court read the text

of Section 9714(a)(1) to require the sentencing enhancement for second-

strike offenders as long as the defendant previously committed a crime of

violence and his current offense is a crime of violence.   Id. at 743.    The

parties agree that Appellant’s prior murder conviction was a crime of

violence and that all of Appellant’s current offenses are crimes of violence.

See 42 Pa.C.S. § 9714(g) (defining “crime of violence” to include robbery

and conspiracy to commit robbery).

     Appellant argues that the Supreme Court’s precedent in Fields is not

applicable to this set of facts where separate second-strike sentencing

enhancements are imposed both for the conspiracy offense and the object of

the conspiracy.   Appellant offers no authority for this assertion but notes

that Section 9714(g) defines a “crime of violence” as enumerated offenses



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such as robbery or inchoate crimes like criminal conspiracy.           Appellant

asserts that the “use of the word ‘or’ is indicative of the Legislature’s intent

that the enhancement shall apply to either the principal offense or the

conspiracy to commit the offense, but not both the conspiracy and the object

thereof.” Appellant’s Brief, at 15.

      For questions of statutory interpretation, our standard of review is de

novo and our scope of review is plenary.       Commonwealth v. Kingston,

No. 45 MAP 2015, 2016 WL 4273574, at *3 (Pa. filed Aug. 15, 2016)

(citations omitted).

            In all matters involving statutory interpretation, we apply
      the Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq., which
      directs us to ascertain and effectuate the intent of the General
      Assembly. 1 Pa.C.S. § 1921(a). To accomplish that goal, we
      interpret statutory language not in isolation, but with reference
      to the context in which it appears. See Consulting Eng'rs
      Council of Penna. v. State Architects Licensure Bd., 522 Pa.
      204, 560 A.2d 1375, 1377 (1989). A statute's plain language
      generally provides the best indication of legislative intent. See,
      e.g., McGrory v. Dep't of Transp., 591 Pa. 56, 915 A.2d 1155,
      1158 (2007); Commonwealth v. Gilmour Mfg. Co., 573 Pa.
      143, 822 A.2d 676, 679 (2003); Penna. Fin. Responsibility
      Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84,
      87 (1995) (“Where the words of a statute are clear and free
      from ambiguity the legislative intent is to be gleaned from those
      very words.”). Only where the words of a statute are ambiguous
      will we resort to other considerations to discern legislative intent.
      1 Pa.C.S. § 1921(c); see In re Canvass of Absentee Ballots
      of Nov. 4, 2003 Gen. Election, 577 Pa. 231, 843 A.2d 1223,
      1230 (2004) (citing O'Rourke v. Commonwealth, 566 Pa.
      161, 778 A.2d 1194, 1201 (2001)).

Kingston, 2016 WL 4273574 at *3.




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      Section 9714(g) sets forth the definition of “crime of violence” as used

in this recidivist statute:

      (g) Definition.--As used in this section, the term “crime of
      violence” means murder of the third degree, voluntary
      manslaughter, manslaughter of a law enforcement officer as
      defined in 18 Pa.C.S. § 2507(c) or (d) (relating to criminal
      homicide of law enforcement officer), murder of the third degree
      involving an unborn child as defined in 18 Pa.C.S. § 2604(c)
      (relating to murder of unborn child), aggravated assault of an
      unborn child as defined in 18 Pa.C.S. § 2606 (relating to
      aggravated assault of unborn child), aggravated assault as
      defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated
      assault), assault of law enforcement officer as defined in 18
      Pa.C.S. § 2702.1 (relating to assault of law enforcement officer),
      use of weapons of mass destruction as defined in 18 Pa.C.S. §
      2716(b) (relating to weapons of mass destruction), terrorism as
      defined in 18 Pa.C.S. § 2717(b)(2) (relating to terrorism),
      trafficking of persons when the offense is graded as a felony of
      the first degree as provided in 18 Pa.C.S. § 3002 (relating to
      trafficking of persons), rape, involuntary deviate sexual
      intercourse, aggravated indecent assault, incest, sexual assault,
      arson endangering persons or aggravated arson as defined in 18
      Pa.C.S. § 3301(a) or (a.1) (relating to arson and related
      offenses), ecoterrorism as classified in 18 Pa.C.S. § 3311(b)(3)
      (relating to ecoterrorism), kidnapping, burglary as defined in 18
      Pa.C.S. § 3502(a)(1) (relating to burglary), robbery as defined in
      18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or
      robbery of a motor vehicle, drug delivery resulting in death as
      defined in 18 Pa.C.S. § 2506(a) (relating to drug delivery
      resulting in death), or criminal attempt, criminal conspiracy or
      criminal solicitation to commit murder or any of the offenses
      listed above, or an equivalent crime under the laws of this
      Commonwealth in effect at the time of the commission of that
      offense or an equivalent crime in another jurisdiction.

42 Pa.C.S. § 9714 (emphasis added).

      The plain language of Section 9714 defines “crime of violence” by

listing numerous offenses     that will    trigger   the   mandatory   minimum



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provisions of this recidivism statute.    The word “or” is used multiple times to

indicate that there are numerous offenses which constitute crimes of

violence which would subject the offender to a sentencing enhancement

upon a subsequent conviction.        Section 9714(g) does not contain any

language describing when or how the sentencing enhancement would be

applied (which is set forth in Section 9714(a)(1)), but simply defines the

subset of crimes subject to the provisions of this particular statute.

      We reject Appellant’s assertion that the particular word “or” in Section

9714 before the listing of the inchoate crimes prevents the simultaneous

application of sentencing enhancements for the principal offenses.            Our

courts do not dissect statutory text and interpret it in a vacuum.            See

Kingston, supra.      We perceive no basis for adopting such a tortured

interpretation. Consistent with the Supreme Court’s precedent in Fields, we

find that the trial court did not err in imposing multiple mandatory minimum

sentences for Appellant’s convictions for robbery and conspiracy to commit

robbery.

      Appellant also claims that the sentencing court abused its discretion in

imposing a “sentence that was grossly unreasonable and disproportionate to

the crimes for which he was convicted.”           Appellant’s Brief, at 18.    “A

challenge to the discretionary aspects of sentencing does not entitle an

appellant to review as of right.”        Commonwealth v. Bynum-Hamilton,

135 A.3d 179, 184 (Pa.Super. 2016).            In order to invoke this Court’s

jurisdiction to address such a challenge, the appellant must satisfy the

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following four-part test: the appellant must (1) file a timely notice of appeal

pursuant to Pa.R.A.P. 902, 903; (2) preserve the issues at sentencing or in a

timely post-sentence motion pursuant to Pa.R.Crim.P. 720; (3) ensure that

the appellant’s brief does not have a fatal defect as set forth in Pa.R.A.P.

2119(f); and (4) set forth a substantial question that the sentence appealed

from is not appropriate under the Sentencing Code under 42 Pa.C.S. §

9781(b). Id.

      While Appellant filed a timely notice of appeal and preserved his

sentencing claim in a timely post-sentence motion, he failed to include a

Rule 2119(f) statement in his appellate brief.          When challenging the

discretionary aspects of sentence, “an appellant must include in his or her

brief a separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.”   Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa.Super.

2004) (citations omitted). If the Commonwealth objects to the appellant’s

failure to comply with Pa.R.A.P. 2119(f), the sentencing claim is waived for

purposes of review.    Id.   In this case, as the Commonwealth objected to

Appellant’s failure to include a separate Rule 2119(f) statement in his

appellate brief, this issue is waived for our review.

      For the foregoing reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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J-S76042-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




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