J-S27027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH BROWN                               :
                                               :
                       Appellant               :   No. 1929 EDA 2017

             Appeal from the Judgment of Sentence June 14, 2013
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009702-2012


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                    Filed July 20, 2018

        Joseph Brown appeals nunc pro tunc from the judgment of sentence,

entered in the Court of Common Pleas of Philadelphia, following his conviction

for robbery – threat of immediate serious injury,1 two violations of the Uniform

Firearms Act (“VUFA”),2 possession of an instrument of crime (“PIC”),3 and

conspiracy to commit robbery.4 After review, we affirm Brown’s conviction,

vacate his judgment of sentence and remand for resentencing.

        On May 18, 2012, Hayward Peak instructed Saria Peak (“Peak”), his

sister, to deliver $1,400.00 to Joseph Ceborollo. Ceborollo met Peak outside

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1   18 Pa.C.S.A. § 3701(a)(i).

2   18 Pa.C.S.A. §§ 6106(a)(1), 6108.

3   18 Pa.C.S.A. § 907.

4   18 Pa.C.S.A. § 903.
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of a local restaurant to take receipt of the $1,400.00; during the meeting,

Ceborollo sat in the rear of Peak’s vehicle. Moments after the meeting began,

Brown approached the driver’s-side window, brandished a firearm, and

demanded Peak give him all of her possessions. Peak gave Brown various

items, including the aforementioned $1,400.00.

     Peak indicated to police that she suspected Ceborollo was complicit in

the robbery. Peak was able to identify Brown from photos provided by police,

and, later, police obtained a search warrant for his home based on Peak’s

identification. During the search of Brown’s home, police arrested Brown and

recovered three firearms and a purse containing Peak’s social security card,

driver’s license and checkbook. Police also recovered Brown’s cell phone and

were able to confirm that he used it to contact Ceborollo at the time of the

robbery.

     In June 2012, while incarcerated awaiting trial, Brown offered another

inmate $2,000.00 and a firearm as consideration for agreeing to “stop” Peak

from coming to court proceedings. Prison phone line tapes recorded Brown

planning this transaction with a friend on the outside, whom he instructed to

obtain the $2,000.00. Following an investigation, the Commonwealth charged

Brown with the additional crimes of criminal solicitation (murder) and

conspiracy to commit murder.

     On April 12, 2013, a jury convicted Brown of robbery, PIC, two VUFA

violations and conspiracy to commit robbery, and it acquitted him of charges

of criminal solicitation (murder) and conspiracy to commit murder. On June

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14, 2013, the trial court imposed mandatory minimum sentences pursuant to

42 Pa.C.S.A. § 9712 and § 9714. Accordingly, the trial court sentenced Brown

to concurrent sentences of 10 to 20 years’ incarceration for robbery and

conspiracy, and an aggregate term of four years’ probation, consecutive to his

confinement, for the VUFA charges.

        On June 9, 2017, the trial court granted Brown’s Post Conviction Relief

Act5 petition, finding that trial counsel was ineffective for failing to file an

appeal, and reinstated his appellate rights nunc pro tunc. On June 16, 2017,

Brown filed a timely notice of appeal nunc pro tunc. Brown and the trial court

have both complied with Pa.R.A.P. 1925.          On appeal, Brown raises the

following issues:

        1. Whether the verdict was against the weight of the evidence.

        2. Whether the Court was in error in denying Brown’s motion for
           [j]udgment of [a]cquittal.

        3. Whether [Brown’s] sentence was constitutionally unlawful.

        4. Whether [Brown’s] lack of notice from the Commonwealth that
           his case was a mandatory minimum sentencing case violated
           his constitutional right to due process at the sentencing
           hearing.

Brief of Appellant, at 7.

        Brown first argues that the verdict was against the weight of the

evidence where the Commonwealth failed to meet its burden of proof with

respect to conspiracy to committ robbery. Brown has waived this claim.

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5   42 Pa.C.S.A. §§ 9541-9546.

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       A defendant must present his challenge to the weight of the evidence to

the trial court for a review in the first instance, in order to preserve the matter

for appellate review. Pa.R.Crim.P. 607(A); see Commonwealth v. Stiles,

143 A.3d 968, 980 (Pa. Super. 2016). A claim challenging the weight of the

evidence “shall be raised in a motion for new trial: (1) orally, on the record,

at any time before sentencing; (2) by written motion at any time before

sentencing; or (3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). Failure

to preserve properly a weight of the evidence claim therefore will result in

waiver. Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009); see

Commonwealth v. Thompson, 93 A.2d 478, 490-91 (Pa. Super. 2014).

       Brown’s failure to raise a weight claim at trial or in a post-sentence

motion is fatal to our review. Brown failed to preserve this issue, and thus, it

is waived on appeal. Sherwood, supra.

       Brown next claims that the trial court erred in denying his motion for

judgment of acquittal as it related, specifically, to his conspiracy – murder

charge. However, because the jury did not find him guilty of this crime, his

issue is moot.6


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6 Even if this claim were not moot, Brown would not be entitled to relief. The
Commonwealth presented evidence that Brown attempted to arrange for his
brother to provide his co-conspirator with $2,000.00 and a firearm as
consideration for murdering Peak. The evidence of a conspiracy, viewed in a
light most favorable to the Commonwealth, was sufficient to allow the jury to
determine Brown’s guilt. See Commonwealth v. Clark, 746 A.2d 1128,
1137 (Pa. Super. 2000) (“Where the conduct of the parties indicates they were



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       Brown next argues the trial court sentenced him pursuant to the

mandatory minimum sentencing scheme set forth in 42 Pa.C.S.A. § 9712, and

thus, his sentence is illegal.7 We agree.

       Generally, a challenge to the application of a mandatory minimum
       sentence is a non-waivable challenge to the legality of the
       sentence. Issues relating to the legality of sentence are questions
       of law, as are claims raising a court’s interpretation of a statute.
       Our 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),

quoting Commonwealth v. Brougher, 978 A2d 373, 377 (Pa. Super. 2009).

       Mandatory minimum sentencing statutes that do not pertain to prior

convictions are constitutionally infirm insofar as they permit a judge to

increase automatically a defendant’s sentence based on a preponderance of

the evidence standard. Commonwealth v. Valentine, 101 A.3d 801, 804

(Pa. Super. 2014). Valentine applies Alleyne v. United States, 570 U.S.

99 (2013), in which the Supreme Court of the United States held:

       Any fact that, by law, increases the penalty for a crime is an
       “element” that must be submitted to the jury and found beyond a
       reasonable doubt. Mandatory minimum sentences increase the
       penalty for a crime. It follows, then, that any fact that increases
       the mandatory minimum is an “element” that must be submitted
       to the jury.

Id. at 103.

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acting in concert with a corrupt purpose in view, the existence of a conspiracy
may be properly inferred).
7The trial court concedes Brown’s sentence is illegal. See generally Trial
Court Opinion, 9/20/17, at 8-9.

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       In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014), we

declared 42 Pa.C.S.A. § 9712.1 wholly unconstitutional. Id. at 98 (statute

permitting trial court to increase defendant’s minimum sentence based upon

preponderance of evidence that defendant was dealing drugs and possessed

firearm violated defendant's right to jury trial; possession of firearm must be

pleaded in indictment, and must be found by jury beyond reasonable doubt

before defendant may be subjected to increase in minimum sentence).

Valentine extends Newman to section 9712, which the trial court applied to

Brown’s sentence; and thus, it is wholly unconstitutional. Therefore, we must

vacate Brown’s judgment of sentence and remand his case for re-imposition

of sentence without consideration of any mandatory minimum provided by

section 9712.8
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8The trial court imposed Brown’s sentence pursuant to sections 9712 and
9714. Although section 9712 is wholly unconstitutional, section 9714 is not.
Section 9714 states, in relevant part, as follows:

       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.

42 Pa.C.S.A. 9714(a)(1) (emphasis added). Unlike section 9712, the section
9714 sentencing enhancement requires the Commonwealth to show a court
previously convicted a defendant of a violent crime beyond a reasonable
doubt, and thus, it does not run afoul of Alleyne or Valentine.

     Instantly, Brown’s illegal sentence runs concurrent with his lawful
sentence imposed pursuant to section 9714; the concurrent sentences are



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       Last, Brown claims he never received notice from the Commonwealth,

after his conviction and prior to sentencing, that his case was subject to a

mandatory minimum sentencing statute. However, our remand of Brown’s

case to the trial court for resentencing renders this issue moot. Therefore, we

decline to address Brown’s notice issue on appeal.9




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identical. Thus, it is conceivable that further proceedings consistent with the
dictates of this memorandum will yield, in effect, the same sentence he is
serving (i.e., 10 to 20 years’ imprisonment). Nevertheless, this Court’s
decision in Valentine constrains us to vacate Brown’s sentence. Justice
demands that we do not permit courts to impose illegal sentences, even where
convenience, fairness or pragmatism merits it.
9 The sentencing court, by reviewing a defendant’s criminal record at the time
of sentencing, determines whether (or to what extent) a defendant is subject
to section 9714’s sentencing provisions. See 42 P.S.C.A. 9714(d) (“The
applicability of [section 9714] shall be determined at sentencing.”). If we
were to require the Commonwealth’s pre-sentence notice specify a particular
provision of section 9714 (i.e. 9714(a)(1) or 9714(a)(2)), it would effectively
divest the sentencing court of its role in determining the applicability of the
relevant provision at the time of sentencing. See Commonwealth v. Norris,
819 A.2d 568 (Pa. Super. 2003).            In other words, so long as the
Commonwealth’s pre-sentence notice invokes the all relevant provisions of
section 9714, such notice is reasonable and not misleading. Id.

       Instantly, the trial court concedes that there is no indication in the
record that the Commonwealth did or did not provide Brown pre-sentence
notice of its intent to pursue a sentence under sections 9712 and 9714. Trial
Court Opinion, 9/10/17, at 10.         Therefore, in anticipation of further
proceedings, we advise the Commonwealth provide Brown notice of any
subsequent intent to pursue a sentence under 9714, which, at a bare
minimum, invokes all relevant provisions of section 9714. Such notice is
sufficient in light of section 9714(d). A better practice, though not a
requirement, Norris, supra, would be for the Commonwealth to provide pre-
sentence notice identifying the specific provision of section 9714 it plans to
pursue a sentence under.

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     Judgment of sentence vacated.     Case remanded for proceedings not

inconsistent with the dictates of the memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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