J-S24002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RASHAN BOWMAN

                            Appellant                No. 3394 EDA 2013


             Appeal from the Judgment of Sentence June 28, 2013
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0007398-2011


BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED AUGUST 11, 2015

       Appellant, Rashan Bowman, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his jury

trial convictions for second-degree murder, robbery, conspiracy, and

firearms not to be carried without a license.1     We affirm the convictions,

vacate Appellant’s mandatory minimum sentence for conspiracy, and

remand for resentencing on that conviction only.

       The relevant facts and procedural history of this appeal are as follows.

On December 13, 2011, Appellant and co-defendant Marcus Cogmon went to

Jalil Howard and Tania Campbell’s house in Upland, PA. Jermir Washington

____________________________________________


1
  18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), (a)(1)(ii), (a)(1)(iv), 903, and
6106, respectively.
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and the victim, Jason Rossiter, were also at the house.      The group was

drinking alcohol and rapping.      At one point, Appellant and the victim

engaged in a “rap battle,” which became “heated.”        The victim showed

Appellant his money, as if the victim wanted to bet Appellant over the “rap

battle.” Shortly after 10:00 p.m., Mr. Washington and the victim decided to

leave. Appellant and Mr. Cogmon followed Mr. Washington and the victim

outside to Mr. Washington’s car at the rear of the house.        The victim

extended his hand to Appellant to “make peace,” at which point Mr. Cogmon

threw the victim up against Mr. Washington’s car and stated, “Give me what

you got, give me the money!”      The victim complied and handed over his

wallet. When Mr. Washington walked toward Mr. Cogmon to help the victim,

Appellant pulled out a firearm, pointed it at Mr. Washington, and said, “Back

up.” Mr. Washington retreated and Mr. Cogmon waved the victim’s wallet in

front of the victim. When the victim reached for the wallet, Appellant shot

the victim. Mr. Washington went to the ground in front of his car and called

the police.   Mr. Washington then saw a silver or white sedan, which had

been parked near his vehicle, drive off.

      At around 10:25 p.m., Detective Glen Greenwalt was driving an

unmarked police vehicle near the scene of the shooting when he received a

radio dispatch regarding the incident.     The dispatch provided a general

description of the silver or white sedan that had fled from the scene of the

shooting. As Detective Greenwalt drove toward the location of the shooting,


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a silver Chrysler LHS sedan drove past him.      The detective reversed his

direction and followed the sedan but did not activate any lights or sirens.

The sedan began to accelerate and passed cars by moving into the oncoming

lane of travel. The sedan ultimately turned into an alley behind West 21 st

Street in Chester.    The sedan again increased its speed.         Detective

Greenwalt continued to follow the sedan until it slowed down and the

detective saw the front doors open. The detective observed two “shadows”

flee from the sedan. The front doors were left open. The unoccupied sedan

then drifted into a pole supporting a raised deck, approximately two minutes

by car from the location of the shooting.    Detective Greenwalt exited his

vehicle and proceeded down the alley on foot. He encountered Mr. Cogmon,

who denied having fled from the Chrysler sedan. Mr. Cogmon remained on

the scene while officers from the K-9 unit arrived and attempted to track the

individuals who fled from the sedan.      Because the police dog did not

approach Mr. Cogmon, Detective Greenwalt allowed Mr. Cogmon to leave.

The police subsequently had the Chrysler sedan towed to the Upland police

station.

      At the police station, Detective Steve Jackson began to process the

Chrysler sedan by taking photographs of its exterior. As Detective Jackson

was taking photographs, he heard a cellular telephone start ringing inside

the car. The detective looked through the driver side rear window and saw a

Huawei smartphone. The detective took the cell phone out of the vehicle,


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removed its battery, and placed the phone and battery in an electrostatic

bag to block wireless signals that could be used remotely to erase the

phone’s contents.       After removing the phone, Detective Jackson did not

search the vehicle or phone or seize any other items.     On December 14,

2011, Detective Jackson obtained a warrant to search the Chrysler sedan for

firearms, cell phones, and related evidence. The police recovered from the

vehicle, inter alia, identification for Appellant, a Samsung cell phone, and

prescription pill bottles bearing Mr. Cogman’s name.    Metro PCS was the

service provider for the Samsung phone. Police also determined the car was

registered to Sabrina Bowman.2 On December 21, 2011, Detective Jackson

secured warrants to search the contents of the Huawei and Samsung cell

phones.    The police were unable to extract data from either phone using

forensic techniques. As a result, Detective Jackson manually searched the

Huawei phone the same way a person would normally operate it.3          The

detective found an outgoing text message sent at 5:49 p.m. on the evening

of the incident, December 13, 2011, which stated: “might rob him when we

done.” Detective Jackson subsequently obtained a search warrant for Metro

____________________________________________


2
  The record is unclear regarding the nature of the relationship, if any,
between Appellant and Ms. Bowman.
3
  At trial, Detective Joseph Walsh testified that he could not manually
examine the contents of the Samsung phone because the phone was
“pattern locked.” To access a pattern-locked phone, the user must draw a
pattern in a collection of dots across the screen, rather than enter a PIN.



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PCS records regarding, inter alia, subscriber and account information

associated with the phone number that received the text message. Metro

PCS provided police with subscriber information (name, address, and

account number), which showed the text message had been sent to

Appellant on the Samsung cell phone recovered from the Chrysler LHS

sedan. The Huawei cell phone belonged to Mr. Cogmon.

     Following the filing of criminal charges, Appellant moved to suppress

on February 25, 2013, seeking exclusion, inter alia, of the subscriber

information for the Samsung cell phone and/or telephone number that had

received the text message from the Huawei cell phone. On April 24, 2013,

the court granted in part and denied in part Appellant’s motion to suppress.

The court denied the suppression motion with respect to Appellant’s

subscriber information. A jury subsequently convicted Appellant of second-

degree murder, robbery, conspiracy, and firearms not to be carried without

a license. On June 28, 2013, the court sentenced Appellant on the second-

degree murder conviction to life imprisonment without the possibility of

parole. The court sentenced Appellant to a concurrent term of three-and-a-

half (3½) to seven (7) years’ incarceration for the firearms conviction. The

court also imposed a concurrent term of five (5) to twenty (20) years’

incarceration on one of the convictions for conspiracy to commit robbery

(corresponding to 18 Pa.C.S.A. § 3701(a)(1)(ii) (threatens another with or

intentionally puts him in fear of immediate serious bodily injury)).


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Appellant’s   robbery   convictions   and   remaining   conspiracy   convictions

merged for sentencing.      On July 8, 2013, Appellant filed timely post-

sentence motions, which the court denied on October 28, 2013. Appellant

filed a timely notice of appeal on November 27, 2013.         The court ordered

Appellant to file a concise statement of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(b); Appellant timely complied.

      Appellant raises the following issues for our review:

         WHETHER THE HONORABLE TRIAL COURT COMMITTED
         LEGAL ERROR AND ABUSE OF DISCRETION, AND
         VIOLATED RIGHTS GUARANTEED BY THE FOURTH, FIFTH,
         SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
         STATES CONSTITUTION AND ARTICLE I SECTION 8 OF
         THE   PENNSYLVANIA   CONSTITUTION,   IN  DENYING
         APPELLANT’S PRE-TRIAL MOTION TO SUPPRESS, AS
         EVIDENCE, SUBSCRIBER AND TELEPHONE NUMBER
         INFORMATION RELATING TO HIS SAMSUNG SCHR910
         CELLULAR TELEPHONE, WHERE THE AFFIDAVIT OF
         PROBABLE CAUSE FAILS TO SET OUT PROBABLE CAUSE
         FOR    THE    ISSUANCE    OF     THE    WARRANT,
         WHERE…APPELLANT HAS A SUBJECTIVE AND OBJECTIVELY
         REASONABLE EXPECTATION OF PRIVACY IN THIS
         INFORMATION,   THAT   WAS    NOT   DEFEATED   BY
         ABANDONMENT OF THE AUTOMOBILE IN WHICH THE
         PHONE WAS FOUND OR THE PHONE ITSELF.

         WHETHER THE HONORABLE TRIAL COURT COMMITTED
         ERROR AND ABUSE OF DISCRETION, AND DENIED
         APPELLANT DUE PROCESS OF LAW AND A FAIR TRIAL, AS
         GUARANTEED BY THE FOURTH AND FOURTEENTH
         AMENDMENTS TO THE UNITED STATES CONSTITUTION
         AND APPLICABLE PARALLEL PROVISIONS OF THE
         PENNSYLVANIA CONSTITUTION, IN DENYING APPELLANT’S
         MOTION FOR A MISTRIAL, AFTER THE ASSISTANT
         DISTRICT ATTORNEY REMARKED, DURING CLOSING
         ARGUMENT, IN REFERRING TO A TEXT MESSAGE SENT
         FROM A CELL PHONE BELONGING TO CO-DEFENDANT
         MARCUS COGMON, TO A PHONE BELONGING TO

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          APPELLANT, WHICH STATED AN INTENT TO “ROB THEM[,]”
          THAT IF APPELLANT…AND CO-DEFENDANT COGMON WERE
          NOT GOING TO ROB THE VICTIM, THEN THEY WERE
          GOING TO ROB SOMEONE ELSE, A PREJUDICIAL
          COMMENT ATTRIBUTING TO APPELLANT UNRELATED
          CRIMINAL BEHAVIOR, THAT WAS NOT IN FAIR RESPONSE
          TO   ANY    ARGUMENT   OR   POSITION   TAKEN   BY
          APPELLANT…AT TRIAL.

(Appellant’s Brief at 4).

       In his first issue, Appellant argues he had a legitimate expectation of

privacy in his cell phone number and corresponding subscriber information.

Appellant contends the Commonwealth’s affidavit in support of its search

warrant application failed to establish probable cause that the release of

Appellant’s subscriber information would yield evidence related to the

shooting.4 Appellant avers the affidavit of probable cause failed to identify

the content of the text message sent to the phone number in question and

simply declared that the text message “will serve as evidence.” Appellant

asserts the affidavit also failed to allege facts showing Metro PCS was the

service provider for the phone number in question. Appellant further claims

it is irrelevant whether he physically abandoned the Samsung phone when

he left it in the Chrysler sedan because he still had no intent to abandon his

privacy interest in his subscriber information, which was not accessible from
____________________________________________


4
  Appellant does not challenge on appeal any of the earlier warrants relating
to the search of the Chrysler LHS sedan or the cell phones. Appellant
challenges only the search warrant granting access to Metro PCS records for
subscriber information associated with the telephone number discovered
during the search of the Huawei cell phone.



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an inspection of the phone itself.   Appellant stresses he had a legitimate

expectation of privacy in the information he passed to Metro PCS while his

cell phone account was active, and this privacy interest was unaffected by

whatever Appellant decided to do with the phone physically.         Appellant

concludes the court erred when it denied his suppression motion with

respect to the Metro PCS subscriber information. We disagree.

      We review the denial of a suppression motion as follows:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

         [W]e may consider only the evidence of the prosecution
         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 findings of the
         suppression court, we are bound by those facts and may
         reverse only if the court erred in reaching its legal
         conclusions based upon the facts.

Commonwealth v. Williams, H., 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (internal citations and quotation marks omitted). Further, “It is within

the suppression court’s sole province as factfinder to pass on the credibility

of witnesses and the weight to be given their testimony.” Commonwealth

v. Clemens, 66 A.3d 373, 378 (Pa.Super. 2013).

      “The standard for evaluating whether probable cause exists for the

issuance of a search warrant is the ‘totality of circumstances’ test as set

forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527


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(1983),    and   adopted    by    [the   Pennsylvania    Supreme     Court]    in

Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985).”

Commonwealth v. Jones, 542 Pa. 418, 424, 668 A.2d 114, 116 (1995).

          A magistrate is to make a practical, common-sense
          decision whether, given all the circumstances set forth in
          the affidavit before him, including the veracity and basis of
          knowledge of persons supplying hearsay information, there
          is a fair probability that contraband or evidence of a crime
          will be found in a particular place. The information offered
          to establish probable cause must be viewed in a common
          sense, nontechnical manner and deference must be
          accorded to the issuing magistrate. The duty of a court
          reviewing the decision is to ensure that the magistrate had
          a substantial basis for concluding that probable cause
          existed.

Id. at 424, 668 A.2d at 116-17 (internal citations and quotation marks

omitted). A magistrate’s finding of probable cause must be based on facts

described within the four corners of the affidavit.       Commonwealth v.

Smith, 784 A.2d 182 (Pa.Super. 2001).

     Instantly, on August 15, 2012, Detective Jackson applied for a search

warrant to obtain subscriber information from Metro PCS for the phone

number that received the text message, “might rob him when we done.”

The affidavit explained the following. Two individuals were involved in the

robbery and shooting of the victim on the night of December 13, 2011. The

victim’s friend, Jermir Washington, saw the perpetrators flee in a silver or

white sedan. Shortly thereafter, Detective Greenwalt was approaching the

scene of the incident when a silver Chrysler sedan sped past him.             The

detective followed the sedan, which turned into an alley and crashed. The

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occupants fled on foot. The location where the suspects fled the sedan was

a two-minute drive from the scene of the shooting.                 The sedan was

registered to someone with the same last name as Appellant.              Appellant’s

brother told police Appellant had been involved in a shooting. From inside

the Chrysler sedan, police recovered a Huawei cell phone.             Pursuant to a

search warrant, Detective Jackson viewed text messages on the phone and

observed a message sent on the night of the shooting. Detective Jackson

stated in the affidavit that based on his knowledge and experience in similar

investigations, fleeing suspects often communicate with each other about

their criminal acts and leave behind cell phones and other evidence in the

vehicles they use to escape from police.          Detective Jackson further stated

that the text message, and the subscriber information for the phone number

that   received   it,   would   serve    as      evidence   with   respect   to   the

robbery/homicide.       Consequently, Detective Jackson requested subscriber

information associated with the phone number, serviced by Metro PCS, that

received the text message in question.

       Under the totality of the circumstances, Detective Jackson presented

sufficient information in the affidavit of probable cause for the magistrate to

determine there was a fair probability the search warrant would lead to

evidence related to the robbery and killing of the victim. See Jones, supra.

The affidavit stated that two individuals were involved in the crime.

Detective Jackson averred that the text message in question, which was sent


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earlier on the same night the robbery/homicide occurred, would serve as

pertinent evidence in this case. The affidavit identified the phone number

that received the text message. Consequently, there was a fair probability

that a search of subscriber information for that phone number would yield

relevant evidence, e.g., the identity of an individual involved in the crime.

In light of our deferential standard, and viewing the information in the

affidavit in a common sense and nontechnical manner, we conclude the

magistrate had a substantial basis to determine probable cause existed.

See id. Therefore, Appellant’s first issue merits no relief.

        In his second issue, Appellant argues the prosecutor made a highly

prejudicial comment during closing argument. Appellant asserts that, when

discussing Mr. Cogmon’s text message to Appellant (“might rob him when

we done”), the prosecutor improperly remarked that if Appellant and Mr.

Cogmon were not going to rob the victim, “who the hell were they going to

rob?”     (Appellant’s Brief at 37 (quoting N.T. Trial, 5/2/13, at 144)).

Appellant contends the comment was prejudicial because it alluded to

separate and unrelated crimes potentially contemplated by Appellant and Mr.

Cogmon. Appellant disputes the notion that the remark was in fair response

to defense counsel’s attempt to discredit Mr. Washington’s testimony that

Appellant and Mr. Cogmon arrived at Mr. Howard’s house before the text

message was sent. Appellant insists his purpose was to attack the credibility

of Mr. Washington, who claimed to have witnessed the robbery/homicide,


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and not to suggest that Appellant and Mr. Cogmon intended to rob

somebody else.     Appellant concludes the prosecutor’s remark deprived

Appellant of due process and entitles him to a new trial. We disagree.

     The following principles govern our review of a claim of prosecutorial

misconduct:

        In considering this claim, our attention is focused on
        whether the defendant was deprived of a fair trial, not a
        perfect one.

        Not every unwise remark on a prosecutor’s part constitutes
        reversible error. Indeed, the test is a relatively stringent
        one. Generally speaking, a prosecutor’s comments do not
        constitute reversible error unless the unavoidable effect of
        such comments would be to prejudice the jury, forming in
        their minds fixed bias and hostility toward [the defendant]
        so that they could not weigh the evidence objectively and
        render a true verdict. Prosecutorial misconduct, however,
        will not be found where comments were based on evidence
        or proper inferences therefrom or were only oratorical flair.
        In order to evaluate whether comments were improper, we
        must look to the context in which they were made.

Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.Super. 2005), appeal

denied, 593 Pa. 726, 928 A.2d 1289 (2007).         “A prosecutor has great

discretion during closing argument. Indeed, closing ‘argument’ is just that:

argument.”    Commonwealth v. Brown, 911 A.2d 576, 580 (Pa.Super.

2006), appeal denied, 591 Pa. 722, 920 A.2d 830 (2007).        A prosecutor,

however, must limit statements to facts in evidence and reasonable

inferences therefrom and must not express personal opinions on a

defendant’s guilt or credibility. Commonwealth v. Bricker, 506 Pa. 571,

579, 487 A.2d 346, 349 (1985).     “[T]he prosecutor may comment on the

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credibility of witnesses.      Further, a prosecutor is allowed to respond to

defense arguments with logical force and vigor.”         Commonwealth v.

Chmiel, 585 Pa. 547, 620, 889 A.2d 501, 544 (2005), cert. denied, 549

U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006) (internal citations omitted).

See also Commonwealth v. Kelly, 465 A.2d 1301 (Pa.Super. 1983)

(stating prosecution may, in closing argument, attempt to meet arguments

made by defense counsel).

      A new trial is required “only when a prosecutor’s improper remarks are

prejudicial, i.e., when they are of such a nature or delivered in such a

manner that they may reasonably be said to have deprived the defendant of

a fair and impartial trial.”    Commonwealth v. Davis, 554 A.2d 104, 111

(Pa.Super. 1989), appeal denied, 524 Pa. 617, 571 A.2d 380 (1989). The

“determination whether the prosecutor’s remarks were unfairly prejudicial

rests within the sound discretion of the trial court and our inquiry of

necessity must turn to whether an abuse of discretion was committed.”

Commonwealth v. Correa, 664 A.2d 607, 609 (Pa.Super. 1995), appeal

denied, 544 Pa. 673, 678 A.2d 364 (1996).

      Instantly, throughout trial, the Commonwealth and Appellant’s and Mr.

Cogmon’s defense attorneys repeatedly referenced the time periods that

Appellant, Mr. Cogmon, Mr. Washington, and the victim arrived at Mr.

Howard’s residence on December 13, 2011, the day of the incident. During

cross-examination of Mr. Washington, Appellant’s counsel asked questions


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regarding when Mr. Washington and the victim arrived at Mr. Howard’s

residence, to which Mr. Washington replied, “sometime like around 3:30,

4:00.”    (N.T. Trial, 4/29/13, at 16).      Counsel also questioned Mr.

Washington as to when Mr. Howard called Appellant or Mr. Cogmon, when

Appellant and Mr. Cogmon arrived, and how long the “rap battles” and other

activities lasted.   After defense counsel finished having Mr. Washington

provide an overview of the events and timeline of the day of the incident,

counsel directed Mr. Washington to read from portions of his testimony from

the preliminary hearing on February 22, 2012. This prior testimony included

Mr. Washington’s statement that it was not until 6:00 p.m. that he and the

victim received a telephone call to go to Mr. Howard’s residence. Defense

counsel likewise elicited Mr. Washington’s preliminary hearing testimony that

Appellant and Mr. Cogmon arrived at approximately 7:00 p.m.

      During redirect examination, the prosecutor responded to defense

counsel’s line of questioning by asking Mr. Washington additional questions

related to the timeline of events.       Mr. Washington testified that he

purchased a bottle of vodka at a wine and spirits store at 2:35 p.m. The

Commonwealth introduced a store receipt in support of that testimony. Mr.

Washington stated he then went to a Wawa store to purchase cigarettes

before going to the victim’s residence.     Mr. Washington and the victim

stayed there for approximately twenty to thirty minutes before proceeding to

Mr. Howard’s residence, which took around thirty minutes.     Ms. Campbell,


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who lived at the residence with Mr. Howard, testified that she arrived home

around 4:00 p.m. and Mr. Washington and the victim were already there.

When asked what time Appellant and Mr. Cogmon arrived, Ms. Campbell

stated, “I think it was like a couple hours later.”   Id. at 221.   Detective

Jackson testified that when he searched Mr. Cogmon’s Huawei cell phone, he

discovered a text message sent at 5:49 p.m. on the day of the incident,

which stated, “might rob him when we done.” (N.T. Trial, 5/1/13, at 229).

The message was sent to a phone registered to Appellant.

     During closing argument, Appellant’s counsel commented on the

evidence regarding the timeline of events on December 13, 2011, as follows:

        We know that on February 22, 2012, [Mr. Washington]
        testified that he got a phone call from Jalil Howard to go
        over to his house somewhere around 6:00 in the afternoon
        and remember, I read that whole passage to him. I didn’t
        just start with the question what time did you get the call.
        I took him through [Mr. Cogmon’s counsel,] Mr.
        Reynolds[,] asking him, begging him, look, if you don’t
        understand the question say so, I’ll rephrase it. If you
        don’t know, say so. If you don’t know the answer, say you
        don’t know. That’s an acceptable answer. All we want is
        honest answers. What time did you get the call to go to
        Jalil Howard’s? 6:00. 6:00. Not, I don’t know. I don’t
        know, I’d have to look at the receipt from the liquor store,
        from the Vodka bottle I bought, you know, I’m really
        foggy. It might have been a little dark. I was at [the
        victim’s] for a half-hour. I really don’t know what time it
        was I got there. He didn’t say any of that even after being
        told by Mr. Reynolds, you know, let’s be straight with each
        other here, he said 6:00 in no uncertain terms and he said
        7:00 these other two arrived. So, that phone call to get
        them there had to be placed after 6:00.           Now, did
        something happen between February 22, 2012 and August
        1st of 2012, when he signed his agreement [to testify]?
        Did something pop up? This text message that Detective

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       Jackson found on Marcus Cogmon’s phone, “Might rob him
       after we’re done.” This is beautiful. This is good stuff.
       This is evidence of a conspiracy. This is evidence that
       Marcus Cogmon at least went to the house with the idea
       that maybe they’re going to rob these guys. This is great.
       This is the mother [lode]. I’m sure [the prosecutor is]
       going to do a much better job of arguing that view [than] I
       ever could, but you know what? It’s worthless as long as
       they didn’t even get the call to go to the house until after
       that thing was sent. It’s worthless. All the work that went
       into pulling that getting the phone out of the car and
       putting it in the bag and putting it in the airplane mode
       and pulling the battery out and getting the warrant to
       search it and having, you know, the Detective Walsh go
       through it and having, you know, Detective Jackson have
       to open it up, all of that is for nothing as long as they
       never got the call until after that was sent. So, he made
       an agreement and are you surprised that it’s kind of
       steering towards this? This is sworn testimony, ladies and
       gentlemen. This preliminary hearing transcript is sworn
       testimony and Judge Kelly’s going to tell you that you can
       consider this as evidence of what happened. Not just
       bearing on credibility, but actually evidence of what
       happened. Where he says, “So, what time did you get the
       phone call to go over to Jalil Howard’s baby’s mom’s
       house? Around 6:00.” That’s on page 43. On page 44 he
       says, “So, around 7:00 these guys arrived?” Answer,
       “Yeah, around 7:00.” That’s evidence of what happened
       and this is February. This is two months after the incident.
       But we can’t, you know, we got to do something about
       that, because it doesn’t make any sense. We got to have
       that–that’s got to change. Tania Campbell says, well, I got
       home at 4:00 and they were there, but I asked, you know,
       Tania Campbell if she spoke to the police that night. She
       said, yeah, I spoke with them. I said, did they ask you
       what time you got home? Yeah, they asked me. So, I
       took her to task a little bit. I asked her to look at the
       recording of her statement, to find in the statement where
       the police asked her what time she got home.            She
       thumbed through it for a couple minutes and finally said,
       no, they didn’t ask me that. So, the first time she’s asked
       what time she got home that night, this past Friday by the
       District Attorney. You can’t trust her. You can’t accept it.


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(N.T. Trial, 5/2/13, at 108-11). Counsel for Mr. Cogmon stated the following

during his closing argument:

        Now, the text message.         The text message is very
        important in the Commonwealth’s case because the timing
        of it. They can’t change the time on that text message. I
        believe it’s 5:46. 5:49 p.m. They can’t change that. …
        [Mr. Washington] says that they didn’t even get there,
        meaning him [sic] and [the victim,] until about 7:00.
        That’s at the preliminary hearing. Since the preliminary
        hearing and today, well, Friday, what has happened? Well,
        what’s happened is he’s found out about this text
        message. They didn’t get that until last August. … Many
        witnesses have motives to lie, they may not even consider
        it a lie. They may just consider it, I’m doing the right
        thing, I’m helping out. So, when you have a person who
        puts his hand on the Bible on two separate occasions and
        on one occasion, which is only, I don’t know, two months
        after the incident says he got there at 7:00 p.m., then the
        phone call is made to these guys to come to the party and
        that these guys then arrive at 8:00, that’s his preliminary
        hearing notes, that’s his statement there, then how can a
        phone call, a text message from hours earlier be related to
        this? You’ll have to reconcile that for yourselves, ladies
        and gentlemen, but I suggest to you…that it’s wholly
        unrelated to this incident.

Id. at 119-22.   The prosecutor subsequently made the following remarks

during his closing argument:

        When timing becomes important, yeah, I go back and look
        for other evidence, that’s why I had Mr. Washington testify
        where did you go before you got to [the victim’s residence]
        to pick him up and how long did you spend, maybe a half-
        hour at his house before you go over to Upland? I went to
        the liquor store. What’s going to be correct on the time?
        A receipt from a store that says 2:35? Yeah. So, when
        you know the store can say yeah, you were here and you
        bought this on this day at this time. So, in case you come
        back and make a return it’s too late. The time and date
        has passed. So, let me ask you this, if the timing[’]s so
        wrong and that text message doesn’t match up, the

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        natural inference from defense counsel’s argument is who
        the hell were they going to rob?

Id. at 143-44.      Mr. Cogmon’s counsel immediately objected to the

statement, “who the hell were they going to rob?” Following a sidebar, Mr.

Cogmon’s counsel moved for a mistrial and counsel for Appellant joined the

motion. The court denied the motion and both defense attorneys declined

the court’s offer of a curative instruction. The court reasoned as follows in

its Rule 1925(a) opinion:

        On reviewing the appellate complaint in the context of the
        trial as a whole, the Assistant District Attorney was within
        the bounds assigned by him in his prosecutorial duties to
        “argue the evidence” and present inferences based upon
        the evidence that had been presented at trial.          The
        Commonwealth’s attorney simply rebutted those direct
        evidentiary inferences and relevant portions of the closing
        arguments that the defense attorneys had vigorously
        employed to place in doubt with the jury throughout both
        the course of the witness testimony and their respective
        summations.

        The two (2) defense attorneys unquestionably attempted
        to call into question the time frames of the events that
        transpired on December 13, 2011. Related to the time
        sequence of the witness[es]’, victim’s, and [Appellant’s
        and Mr. Cogmon’s] respective arrivals centered around the
        incriminating text message’s seemingly undisputed time,
        both defense counsel further attempted to have the jury
        doubt the credibility of the Commonwealth’s witness, Mr.
        Washington, through the review of the Preliminary Hearing
        testimony and by having also Detective Jackson
        questioned     concerning    statements    made      by  Mr.
        Washington at the preliminary hearing.          The two (2)
        defense attorneys fixated on the arrival times of the
        individuals at Mr. Howard’s residence to the extent that it
        led the Assistant District Attorney to question this focus,
        and fairly suggest in direct response that if the times were
        wrong, and if Mr. Washington was incorrect in his memory

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J-S24002-15


       of when he, [the victim], and [Appellant and Mr. Cogmon]
       arrived at the home, then it is questionable as to what
       would cause such a text message to be sent, as well as to
       whom the text message could be referencing.

       The prosecutor had the ability to respond to both the
       evidence brought forth at trial and to the related
       arguments presented by the defense attorneys during their
       closing summations. During both the defense counsels’
       closing arguments, each attorney separately questioned
       the timing of the arrival of [the victim], Mr. Washington,
       and [Appellant and Mr. Cogmon].             Through these
       statements, they attempted to cast both Ms. Campbell’s
       and Mr. Washington’s credibility into doubt and equally, if
       not more importantly, [Appellant and Mr. Cogmon] sought
       to distance themselves from their patently incriminatory
       text message and its otherwise clear nexus to [the
       victim’s] subsequent robbery and murder.

                               *     *      *

       Reviewing all the testimonial evidence and the closing
       argument of the Assistant District Attorney, this challenged
       comment was not some devious attempt to interject
       “implied unrelated criminal behavior on the part of
       [Appellant],” but rather one sentence clearly framed as a
       direct response to respective arguments both defense
       lawyers unquestionably vigorously advanced…during their
       respective closings stemming from trial evidence each of
       [Appellant’s and Mr. Cogmon’s] attorneys were particularly
       scrutinizing. There was support in the record throughout
       trial established by the prosecution and defense that there
       was a concern surrounding the timing of not only
       [Appellant and Mr. Cogmon’s] arrival, but also the
       Commonwealth’s witnesses’ arrival at Mr. Howard’s
       residence. Related to this evidence, the connection and
       ability of the Assistant District Attorney to properly
       reference the timing of the text message stating, “might
       rob him when we done,” is without question. Defense
       counsel focused on the time of the text message, plainly
       arguing that the time of the incriminatory communication
       would not have correctly aligned to the victim’s
       subsequent robbery and murder had Mr. Washington
       erroneously relayed when he and [the victim] arrived at

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J-S24002-15


         Mr. Howard’s residence. The Commonwealth’s attorney
         was thus free to elaborate on this matter as he saw
         necessary to “argue that the evidence leads to the
         conclusion of guilt, and [was] permitted to suggest all
         favorable and reasonable inferences that arise from the
         evidence.” [Commonwealth v. Chamberlain, 612 Pa.
         107, 153, 30 A.3d 381, 408 (2011), cert. denied, ___ U.S.
         ___, 132 S.Ct. 2377, 182 L.Ed.2d 1017.]

                                  *     *      *

         [] The court did not find that the prosecutor’s single
         sentence statement extended to the reaches of prejudicial
         impact that the defense lawyers believed and offered to
         correct the statement heard by the jury regardless of this
         court not finding a sufficient amount of prejudice in the
         Commonwealth’s remark so as to warrant a mistrial.

                                  *     *      *

         When properly viewed in the context of the case record as
         a whole, that exceptionally modest portion of the Assistant
         District Attorney’s closing argument complained about on
         appeal was permissible advocacy. …

(Trial Court Opinion, filed June 23, 2014, at 50-55) (internal citations to the

record omitted). The record supports the court’s analysis. The prosecutor’s

challenged remark referenced evidence of record and was a reasonable

response to Appellant and Mr. Cogmon’s persistent argument that the text

message was unrelated to the robbery/homicide of the victim that occurred

just hours after the message was sent. See Chmiel, supra; Harris, supra.

The trial court acted well within its discretion when it determined the remark

was not so prejudicial as to deprive Appellant of a fair trial.   See Correa,

supra; Davis, supra. Therefore, Appellant’s second issue merits no relief.

      Nevertheless, we observe in the certified record that the court imposed

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J-S24002-15


a mandatory minimum sentence for Appellant’s conspiracy conviction,

pursuant to 42 Pa.C.S.A. § 9712, because the conspiracy involved a robbery

committed with a firearm.      Although Appellant has not challenged this

portion of his sentence, the legality of a sentence is a nonwaivable issue and

we can review an illegal sentence sua sponte.         See Commonwealth v.

Oree, 911 A.2d 169, 172 (Pa.Super. 2006), appeal denied, 591 Pa. 699,

918 A.2d 744 (2007).

      Section 9712(a) sets forth a mandatory minimum sentence of five (5)

years’ imprisonment where a defendant is convicted of a crime of violence if

the defendant visibly possessed a firearm that placed the victim in

reasonable fear of death or serious bodily injury during the commission of

the offense.   42 Pa.C.S.A. § 9712(a).       See also id. § 9714(g) (including

within definition of “crime of violence” conspiracy to commit any crime of

violence). Section 9712(b) states that the statutory provisions shall not be

an element of the crime and applicability of the statute shall be determined

at sentencing by a preponderance of the evidence.          Id. § 9712(b).   In

Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), the United States Supreme Court expressly held that any fact

increasing the mandatory minimum sentence for a crime is considered an

element of the crime to be submitted to the fact-finder and found beyond a

reasonable doubt. Recently, in Commonwealth v. Newman, 99 A.3d 86

(Pa.Super. 2014) (en banc), this Court addressed the constitutionality of a


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similar statute, 42 Pa.C.S.A. § 9712.1, in light of Alleyne.5            Relying on

Alleyne,     Newman        held   that    Section   9712.1   can   no   longer   pass

constitutional muster as it “permits the trial court, as opposed to the jury, to

increase a defendant’s minimum sentence based upon a preponderance of

the evidence that the defendant was dealing drugs and possessed a firearm,

or that a firearm was in close proximity to the drugs.” Newman, supra at

98.    This Court vacated Newman’s PWID sentence and remanded for

resentencing without imposition of the mandatory minimum under Section

9712.1. See also Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super.

2014) (extending logic of Alleyne and Newman to Sections 9712 and 9713

and holding those sections are likewise unconstitutional insofar as they

permit automatic increase of defendant’s sentence based on preponderance

of evidence standard; statutes are not severable and are unconstitutional in

their entireties). Accord Commonwealth v. Hopkins, ___ A.3d ___, 2015

WL 3949099 at *11-13 (Pa. June 15, 2015) (declaring mandatory minimum

statute at 18 Pa.C.S.A. § 6317 (drug-free school zones) unconstitutional in

its entirety under Alleyne, where that statute stated its provisions were not

elements of crime and applicability of statute should be determined at

____________________________________________


5
  This Court made clear that Alleyne is subject to limited retroactivity; in
other words, Alleyne is applicable to all criminal cases still pending on direct
review. Newman, supra at 90. Because Newman’s case was still pending
on direct appeal, the holding in Alleyne applied to Newman’s case, as it also
does here in this direct appeal.



                                          - 22 -
J-S24002-15


sentencing by preponderance of evidence).

      Instantly, a jury convicted Appellant of, inter alia, conspiracy with

respect to three (3) charges of robbery.     At sentencing, the court applied

Section 9712 to one of Appellant’s convictions for conspiracy to commit

robbery (threatens another with or intentionally puts him in fear of

immediate serious bodily injury) and merged the remaining conspiracy

convictions.   Given this Court’s binding decisions in        Newman and

Valentine, however, we must vacate Appellant’s mandatory minimum

sentence for conspiracy and remand for resentencing solely on that

conviction. Accordingly, we affirm Appellant’s convictions, vacate Appellant’s

mandatory minimum sentence for conspiracy, and remand for resentencing

solely on that count.     We affirm the judgment of sentence in all other

respects.

      Judgment of sentence affirmed in part and vacated in part; case

remanded for limited resentencing. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015




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