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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DARNELL BASON

                            Appellant                 No. 344 EDA 2013


            Appeal from the Judgment of Sentence January 9, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006896-2010,
              CP-51-CR-0006898-2010, CP-51-CR-0006947-2010


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 11, 2014

        Darnell Bason appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County. After our review, we affirm

Bason’s convictions based on the opinion and supplemental opinion filed by

the Honorable Charles J. Cunningham, III, and we vacate the judgment of

sentence and remand for resentencing.

        Bason committed two gunpoint robberies on April 29, 2010. Following

trial in absentia on September 14, 2012, a jury convicted Bason of robbery,1

robbery of a motor vehicle,2 possessing an instrument of crime,3 escape,4
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    18 Pa.C.S. § 3702.
(Footnote Continued Next Page)
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and two counts of criminal conspiracy.5           On January 9, 2013, the court

sentenced Bason to consecutive terms of imprisonment of five to ten years

on the robbery conviction, five to ten years on the robbery of a motor

vehicle conviction, and one to five years on each of the conspiracy

convictions, for a total of 13 to 32 years. The court imposed the mandatory

minimum sentence for the robbery conviction and the robbery of a motor

vehicle conviction pursuant to 42 Pa.C.S. § 9712.6
                       _______________________
(Footnote Continued)


3
    18 Pa.C.S. § 907.
4
    18 Pa.C.S. § 5121.
5
    18 Pa.C.S. § 903.
6
    Section 9712 provides in relevant part:

        (a)   Mandatory sentence. – Except as provided under section
              9716 (relating to two or more mandatory minimum
              sentences applicable), any person who is convicted in any
              court of this Commonwealth of a crime of violence as
              defined in section 9714(g) (relating to sentences for
              second and subsequent offenses), shall, if the person
              visibly possessed a firearm or replica of a firearm, whether
              or not the firearm or replica was loaded or function, that
              placed the victim in reasonable fear of death or serious
              bodily injury, during the commission of the offense, be
              sentenced to a minimum sentence of at least five years of
              total confinement notwithstanding any other provision of
              this title or other statute to the contrary. Such persons
              shall not be eligible for parole, probation, work release or
              furlough.

        (b)   Proof at sentencing. – Provisions of this section shall not
              be an element of the crime and notice thereof to the
              defendant shall not be required prior to conviction, but
(Footnote Continued Next Page)


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      Bason filed a notice of appeal, and the trial court ordered Bason to file

a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.        Bason

filed a timely statement on February 21, 2013.      Thereafter, Bason filed a

petition for extension of time to file a supplemental statement of errors

complained of on appeal after the notes of testimony were transcribed. The

trial court denied this petition on March 13, 2013. The trial court filed its

opinion on November 20, 2013, and thereafter filed a supplemental opinion

on May 22, 2014.

      We incorporate by reference the trial court’s summary of the factual

and procedural history of this case. See Trial Court Opinions, 11/20/13, at

3-6; 5/22/14, at 2-4.

      On appeal, Bason raises the following issues for our review:

      1. Did the lower court err in denying appellant’s motion to
         suppress physical evidence where the recovery of the wallet
         and the gun occurred after the police initiated a stop of
         appellant in the absence of either reasonable suspicion or
         probable cause as the description provided of the suspects
         was overwhelmingly vague, and the gun recovered by police
         was a product of forced abandonment where the illegal stop
                       _______________________
(Footnote Continued)

             reasonable notice of the commonwealth’s intention to
             proceed under this section shall be provided after
             conviction and before sentencing. The applicability of this
             section shall be determined at sentencing. The court shall
             consider any evidence presented at trial and shall afford
             the Commonwealth and the defendant an opportunity to
             present any necessary additional evidence and shall
             determine, by a preponderance of the evidence, if this
             section is applicable.



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        and detention of appellant unlawfully provoked appellant’s
        flight?

     2. Did the lower court err in denying appellant’s motion to
        suppress complainant Edward Burse’s out-of-court and in-
        court identification where the circumstances of Burse’s
        identification were unduly suggestive as he was able to hear
        information about the perpetrator conveyed over police radio
        and he identified appellant only after appellant was joined
        with another male previously identified by Burse, and the in-
        court identification did not have an independent origin
        sufficient to purge the primary taint of the out-of-court
        identification?

     3. Did the lower court err in denying appellant’s motion to
        suppress complainant Steven Evans’ out-of-court and in-court
        identifications where his initial identification of appellant from
        a photo array was the fruit of the illegal stop and seizure of
        appellant in the absence of either reasonable suspicion or
        probable cause, and the in-court identification did not have an
        independent origin sufficient to purge the primary taint of the
        of the out-of-court identification?

     4. Should the mandatory minimum sentencing statute, 42
        Pa.C.S. § 9712 [Sentencing for offenses committed with
        firearms], be declared void and unenforceable, where multiple
        procedural provisions within the statute are facially
        unconstitutional pursuant to Alleyne v. United States, 133
        S.Ct. 2151 (2013), and cannot properly be severed from the
        remaining statute, thereby rendering application in appellant’s
        case of the mandatory minimum sentence of 5 to 10 years’
        incarceration under this statute unconstitutional?

     After our review of the parties’ briefs and the record on appeal, we

conclude that Judge Cunningham has properly addressed Bason’s first issue

in his trial court opinion, see Trial Court Opinion, 11/20/13, at 13-15, and

has properly addressed Bason’s second issue in its supplemental opinion.

See Supplemental Trial Court Opinion, 5/22/14, at 6-9. Bason’s third issue,

which is based on his claim that the initial stop/seizure was unlawful, has


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also been properly addressed in the trial court’s opinion.        See Trial Court

Opinion, 11/20/13, at 13-15.             We, therefore, rely on the trial court’s

opinions to affirm Bason’s convictions.

       In his fourth issue, Bason argues that his judgment of sentence must

be vacated and the case remanded for resentencing pursuant to Alleyne v.

United States, 133 S. Ct. 2151 (2013).             In Alleyne, the United States

Supreme Court held that any facts leading to an increase in a mandatory

minimum sentence are elements of the crime and must be presented to a

jury and proven beyond a reasonable doubt.

       In reliance on Alleyne, Bason argues that the application of a

mandatory minimum sentence pursuant to section 9712 was illegal as

section 9712 has been held unconstitutional. Bason did not raise this claim

before the trial court, however, in Commonwealth v. Watley, 81 A.3d

108, 118 (Pa. Super. 2013)            (en banc), this Court, discussing Alleyne,

stated that where “[a]pplication of a mandatory minimum sentence gives

rise to illegal sentence concerns, even where the sentence is within the

statutory limits[,] [such] [l]egality of sentence questions are not waivable.”

Because Bason’s claim here falls within this “narrow class of cases         . . .

considered to implicate illegal sentences,” we address its merits.       Watley,

81 A.3d at 118.7

____________________________________________


7
 We note that on June 13, 2014, our Supreme Court accepted allowance of
appeal on the issue of whether Alleyne relates to the legality of sentence,
(Footnote Continued Next Page)


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      After our review of Alleyne and the recent case law on this issue, we

agree with Bason that his judgment of sentence must be vacated and the

case remanded for resentencing.                  See Commonwealth v. Valentine,

2014 PA Super. 220             --- A.3d ---, --- (Pa. Super. 2014) (mandatory

minimum sentencing statutes unconstitutional in entirety in providing for

factfinding by court rather than jury on factual predicates).             See also

Commonwealth v. Newman, –––A.3d ––––, 2014 PA Super 178, 2014 WL

4088805 (filed August 20, 2014) (en banc) (entirety of mandatory minimum

sentencing statute must be stricken as unconstitutional; it is for the

legislature to create new mandatory minimum sentencing procedures in

conformity with Alleyne).

      Because Alleyne and Newman render section 9712 unconstitutional,

we vacate the judgment of sentence and remand for resentencing without

consideration of any mandatory minimum sentence as provided by section

9712.8

      Judgment of sentence vacated.               Case remanded for re-imposition of

sentence consistent with this decision. Jurisdiction relinquished.

                       _______________________
(Footnote Continued)

stating the issue as follows: Whether a challenge to a sentence pursuant to
Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013) implicates the legality of the sentence and is therefore non-waivable.
Commonwealth v. Johnson, ––– Pa. ––––, 93 A.3d 806 (2014).
8
 We note that the Commonwealth does not oppose resentencing in light of
Alleyne. See Commonwealth’s Brief, at 16.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2014




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