J-S74027-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
                  v.                    :
                                        :
FRANK ROSELLI,                          :
                                        :
                       Appellant        :    No. 891 EDA 2014

       Appeal from the Judgment of Sentence Entered July 10, 2012,
          in the Court of Common Pleas of Montgomery County,
             Criminal Division at No. CP-46-CR-0000820-2011

BEFORE: BENDER, P.J.E., DONOHUE and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED JANUARY 13, 2015

     I join the Majority Memorandum except for its handling of Roselli’s fifth

issue, the Alleyne issue. While I agree with the Majority that Alleyne does

not abrogate the Almendarez-Torres exception for prior convictions, the

issue is somewhat more nuanced than the Majority posits.         We are not

dealing here merely with the fact of convictions.   We are dealing with an

issue of what the convictions involve, i.e., were the burglary convictions

crimes of violence because the buildings were occupied.         Certainly an

argument can be made that this issue involves a factual question that

requires a jury to decide it beyond a reasonable doubt.

     Unfortunately for Roselli, that argument has been repeatedly rejected

by the courts. See U.S. v. Blair, 734 F.3d 218, 227-28 (3rd Cir. 2013):

          Blair’s arguments fail, however, because Almendarez–
     Torres has not been narrowed and remains the law. Alleyne,


* Retired Senior Judge assigned to the Superior Court.
J-S74027-14


      133 S.Ct. at 2160 n. 1. Descamps and Alleyne do nothing to
      restrict the established exception under Almendarez–Torres
      that allows judges to consider prior convictions. When the
      pertinent documents show, as they do in this case, that the prior
      convictions are for separate crimes against separate victims at
      separate times, Alleyne does not somehow muddy the record
      and convert the separateness issue into a jury question.
      Alleyne was written against the backdrop of Almendarez–
      Torres and existing ACCA jurisprudence. Had the Supreme
      Court meant to say that all details related to prior convictions
      are beyond judicial notice, it would have said so plainly,as that
      would have been a marked departure from existing law.

            Arguments like Blair's have been rejected by numerous
      courts.

      Thus, I agree with the Majority that Alleyne provides no succor for

Roselli.




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