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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

SHARIF BROWN,

                        Appellant                  No. 3457 EDA 2013


        Appeal from the Judgment of Sentence of August 12, 2013
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0000850-2010
                        CP-51-CR-0000851-2010
                        CP-51-CR-0000852-2010
                        CP-51-CR-0000853-2010
                        CP-51-CR-0000854-2010


BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 17, 2015

     Appellant, Sharif Brown, appeals from the judgment of sentence

entered on August 12, 2013 in the Criminal Division of the Court of Common

Pleas of Philadelphia County. After careful review, we affirm in part, vacate

in part, and remand for resentencing.
      Appellant was arrested and charged with multiple robbery, assault,

and firearms related offenses following three gunpoint robberies that

occurred in Philadelphia on October 24, 2009.         Thereafter, Appellant

proceeded to a jury trial that commenced on March 20, 2013. On March 26,

2013, the jury found Appellant guilty of numerous charges and the trial

court imposed an aggregate sentence of 17½ to 35 years’ imprisonment on
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August 12, 2013.        Set forth below is a summary, by docket number, of

Appellant’s convictions and his corresponding sentences.

        At CP-51-CR-0000850-2010 (850-2010), Appellant was convicted and

sentenced to two and one-half to five years of incarceration for persons not

to possess firearms,1 two and one-half to five years of incarceration for

carrying a firearm without a license,2 two and one-half to five years of

incarceration for carrying firearms in public in Philadelphia,3 two and

one-half to five years of incarceration for possessing an instrument of crime

(PIC),4 and one to two years of incarceration for simple assault.5 All of these

sentences were set to run concurrently.

        At CP-51-CR-0000851-2010 (851-2010), Appellant was convicted and

sentenced to five to 10 years of incarceration for robbery. 6 The trial court

directed that this sentence should run consecutive to those imposed at

850-2010. In addition, Appellant was convicted and sentenced to five to 10

years of incarceration for possession of firearms prohibited, three and
____________________________________________


1
  18 Pa.C.S.A. § 6105. The trial court determined Appellant’s guilt for this
offense at all docket numbers.
2
    18 Pa.C.S.A. § 6106.
3
    18 Pa.C.S.A. § 6108.
4
    18 Pa.C.S.A. § 907.
5
    18 Pa.C.S.A. § 2701.
6
    18 Pa.C.S.A. § 3701.



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one-half to seven years of incarceration for carrying a firearm without a

license, and two and one-half to five years of incarceration for carrying

firearms in public in Philadelphia.            The trial court ordered that these

sentences should run concurrent to the sentence for robbery at docket (851-

2010).

        At CP-51-CR-0000852-2010 (852-2010), Appellant was convicted and

sentenced to five to 10 years of incarceration for aggravated assault.7 The

trial court ordered that Appellant’s sentence for aggravated assault should

run consecutive to the sentence imposed at 851-2010.                 In addition,

Appellant was convicted and sentenced to five to 10 years’ incarceration for

robbery, five to 10 years’ incarceration for possession of firearms prohibited,

three and one-half to seven years’ incarceration for carrying a firearm

without a license, and two and one-half to five years of incarceration for

carrying firearms in public in Philadelphia. Appellant’s sentences for robbery

and his firearms convictions were set to run concurrent to the sentence

imposed for aggravated assault at docket (852-2010).

        At CP-51-CR-0000853-2010 (853-2010), Appellant was convicted and

sentenced to five to 10 years of incarceration for possession of a firearm

prohibited and one to two years of incarceration for simple assault. The trial



____________________________________________


7
    18 Pa.C.S.A. § 2702.



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court    directed   that   these   sentences   should   run   concurrent    to   the

punishments imposed at the other docket numbers.

        At CP-51-CR-0000854-2010 (854-2010), Appellant was convicted and

sentenced to five to 10 years of incarceration for robbery. The trial court

ordered this sentence to run consecutive to the sentences imposed at

852-2010. In addition, Appellant was convicted and sentenced to five to 10

years of incarceration for possession of firearms prohibited, three and

one-half to seven years of incarceration for carrying firearms without a

license, two and one-half to five years of incarceration for carrying firearms

in public in Philadelphia, and two and one-half to five years for PIC. The trial

court ordered these sentences to run concurrent to Appellant’s robbery

sentence at this docket (854-2010).

        On August 22, 2013, Appellant moved for post-sentence relief,

alleging, among other things, that his sentence was excessive.             The trial

court denied Appellant’s post-sentence motion on October 30, 2013.

        Subsequently, Appellant filed a notice of appeal on November 27,

2013.    Appellant’s notice, however, listed only docket number 854-2010.

After obtaining leave from this Court to amend the notice by listing the

remaining docket numbers, Appellant filed a corrected notice of appeal on

February 27, 2014.

        Meanwhile, on January 15, 2014, the trial court issued an order

pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a concise statement


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of errors complained of on appeal within 21 days.           After receiving an

extension of time from the trial court, Appellant filed his concise statement

on February 26, 2014. Appellant preserved his present claims by including

them within his submission to the trial court.

      Appellant’s brief raises the following questions for our review:

      Was not the evidence insufficient to establish that Appellant was
      the perpetrator of the crimes for which he was convicted?

      Did [the trial court err] in sentencing Appellant on more than
      one count of [possession of firearms prohibited, carrying a
      firearm without a license, and carrying firearms in public in
      Philadelphia under] 18 Pa.C.S.[A.] §§ 6105, 6106 and 6108
      where the evidence presented at trial was that Appellant carried
      the firearm in an uninterrupted fashion for the entire period
      encompassing the robberies[?]

      Should not the mandatory minimum sentencing statute, 42
      Pa.C.S. § 9712 [sentences 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 [five] to 10 years [’]
      confinement on the robbery and aggravated assault conviction[s]
      under this statute unconstitutional[?]

      Was not the [trial] court’s imposition of 17½ to 35 years[‘]
      confinement in violation of the Sentencing Code and contrary to
      the fundamental norms underlying the sentence process, and
      therefore manifestly unreasonable, excessive and an abuse of
      discretion?

Appellant’s Brief at 5-6.

      Appellant argues in his first issue that the eyewitness testimony in this

case was so inherently unreliable that the evidence was insufficient to


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establish that he perpetrated the crimes for which he was convicted.             To

advance this claim, Appellant cites the brief duration of the complainants’

encounters with their assailant, the fact that these encounters occurred at

night, the “unremarkable” descriptions offered by the victims, and certain

minor    inconsistencies   established    during   examination   at   trial.    See

Appellant’s Brief at 23-29. This claim fails.

        Our standard when reviewing the sufficiency of the evidence is
        whether the evidence at trial, and all reasonable inferences
        derived therefrom, when viewed in the light most favorable to
        the Commonwealth as verdict-winner, are sufficient to establish
        all elements of the offense beyond a reasonable doubt. We may
        not weigh the evidence or substitute our judgment for that of the
        fact-finder. Additionally, the evidence at trial need not preclude
        every possibility of innocence, and the fact-finder is free to
        resolve any doubts regarding a defendant's guilt unless the
        evidence is so weak and inconclusive that as a matter of law no
        probability of fact may be drawn from the combined
        circumstances. When evaluating the credibility and weight of the
        evidence, the fact-finder is free to believe all, part or none of the
        evidence. For purposes of our review under these principles, we
        must review the entire record and consider all of the evidence
        introduced.

Commonwealth v. Patterson, 940 A.2d 493, 500 (Pa. Super. 2007).

        Here, Appellant's challenges to the eyewitness testimony relate to the

weight of the evidence, not to its sufficiency. See Patterson, 940 A.2d at

502; Commonwealth v. Galloway, 434 A.2d 1220, 1222 (Pa. 1981)

(discrepancies in testimony go to the credibility of the witnesses and not the

sufficiency of the evidence); Commonwealth v. Halye, 719 A.2d 763, 764

(Pa. Super. 1998) (en banc), appeal denied, 743 A.2d 916 (Pa. 1999), cert.

denied sub nom, Pennsylvania v. Halye, 529 U.S. 1012 (2000) (mere

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conflict in the testimony does not render the evidence insufficient because it

is within the province of the fact finder to determine the weight to be given

to the testimony and to believe all, part, or none of the evidence).

      Viewing the evidence in the light most favorable to the verdict winner,

we find that the Commonwealth presented sufficient evidence to establish

Appellant's identity as the perpetrator. In this case, Reginald Beatty, one of

the robbery victims, wrestled with Appellant and was able to describe

Appellant’s facial features to police.         During this struggle, a cellular

telephone belonging to another victim (Steven King) fell from Appellant’s

pocket. After Appellant’s arrest, Beatty positively identified Appellant as his

assailant. Moreover, Beatty identified Appellant at trial. Lastly, all three of

the victims accurately and consistently described Appellant’s complexion,

height, weight, age, and clothing to police. Thus, the evidence was not so

inherently    unreliable    that   it   precluded   a   finding   of    guilt.    See

Commonwealth v. Orr, 38 A.3d 868, 874-875 (Pa. Super. 2011);

Patterson, 940 A.2d at 502 (positive identification of appellant as

perpetrator of burglary sufficient to support conviction).

      In his second issue, Appellant asserts that the trial court unlawfully

sentenced him for five violations of § 6105 (persons not to possess

firearms), and for four violations each of §§ 6106 (possession of firearms

without   a   license)     and   6108   (possession     of   firearms   in   public   in

Philadelphia).   Appellant maintains that, notwithstanding the three armed


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robberies sub judice and the ensuing armed interaction with police, his

possession of a firearm constituted a single, uninterrupted criminal episode

for purposes of the foregoing firearms provisions. Hence, under our decision

in Commonwealth v. Woods, 710 A.2d 626 (Pa. Super. 1998), appeal

denied, 729 A.2d 1129 (Pa. 1998), Appellant argues that it was improper for

the trial court to impose multiple sentences for each provision that Appellant

violated.

      The Commonwealth advances two arguments in support of the trial

court’s conclusion that multiple sentences were appropriate.        First, the

Commonwealth cites 42 Pa.C.S.A. § 9765 for the proposition that crimes do

not merge for sentencing purposes unless the offenses arise from a single

criminal act and all of the statutory elements of one offense are included in

the statutory elements of the other offense. See Commonwealth’s Brief at

14. Next, the Commonwealth cites Commonwealth v. Andrews, 720 A.2d

764 (Pa. super. 1998), aff’d, 768 A.2d 309 (Pa. 2001), wherein both this

Court and our Supreme Court affirmed two convictions for PIC where the

defendant used a handgun in two separate robberies, in two separate

apartment complexes, on the same day.

      Appellant’s claim alleges that the trial court improperly imposed

multiple punishments for a single criminal act, a contention that implicates

the legality of Appellant’s sentences.   See Commonwealth v. Robinson,

931 A.2d 15, 21 (Pa. Super. 2007) (en banc) (the term illegal sentence is


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one that applies to a narrow class of cases including:      (1) claims that the

sentence fell outside of the legal parameters prescribed by the applicable

statute; (2) claims involving merger/double jeopardy; and (3) claims

implicating the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000)).

“Issues relating to the legality of a sentence are questions of law[; hence,

o]ur 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), appeal denied, 53 A.3d 756 (Pa. 2012).

      Appellant maintains that possession of a firearm is a continuous and

uninterrupted event for purposes of §§ 6105, 6106, and 6108, and that his

use of a handgun during the three October 24, 2009 robberies and the

ensuing armed encounter with police, did not alter this fact. Appellant cites

to Woods in support of this contention.         In Woods, the defendant

perpetrated a series of armed assaults following a vehicle accident and was

convicted, inter alia, of two counts of violating § 6108.    See Woods, 710

A.2d at 631. We concluded that the defendant’s gun possession represented

a single offense under § 6108, reasoning that the crime was complete upon

carrying a weapon on a public street, regardless of whether it was used in

the commission of a crime. See id.; accord Commonwealth v. Brandrup,

366 A.2d 1233, 1234 (Pa. Super. 1976) (holding that the crime of former

convicts not to own or possess a firearm is a continuing offense).         We

explained our rationale as follows:


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     It is important to point out that the violation of the Firearms Act
     was separate and apart from appellant's usage of the firearm in
     the assaults. That is to say, appellant would have been guilty of
     violating § 6108 by carrying a weapon regardless of whether or
     not he used the weapon in the commission of a crime. Logically
     speaking then, the Commonwealth's decision to charge him with
     two violations of this section is wholly arbitrary.

     Under § 6108 a crime is committed by carrying a weapon on a
     public street. In the context of an uninterrupted or continuous
     carrying of a weapon at what point does one stop “carrying” a
     firearm on the street and start anew? Does one commit a
     violation of the Act with every step he takes while carrying a
     firearm? Or does one commit a violation based upon a certain
     passage of time? If so, how much time must pass before a new
     offense begins? Is it a separate offense for every hour one
     carries a weapon? Or every ten minutes?

     The fact of the matter is there was no evidence to indicate that
     appellant carried the subject weapon in other than an
     uninterrupted fashion for the entire period encompassing the two
     assaults, as well an indeterminate period of time before and
     after the assaults. Since under the Act commission of the
     offense is not predicated upon the commission of a crime with
     the weapon the charging of two violations is no more logical than
     charging appellant for one offense every ten minutes, or every
     hour, or every step he took, while carrying a weapon. Although
     zealous District Attorneys might embrace such an interpretation
     of the Act we cannot. Since the offense is not linked to usage of
     the firearm in a separate crime appellant's “carrying” of the
     weapon must be construed, from a logical standpoint, to
     represent a single offense of the statutory prohibition against
     carrying a weapon upon the street. Since appellant committed
     but one offense in carrying a weapon upon the streets, he
     cannot have two sentences imposed upon him for that violation.
     As such, we reverse the second sentence imposed upon
     appellant for violation of 18 Pa.C.S.A. § 6108 at Bill number
     4422.     In all other respects the judgment of sentence is
     affirmed.

Woods, 710 A.2d at 631-632 (footnotes omitted).


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       In this case, the record establishes that Appellant unlawfully possessed

a firearm8 during the course of three robberies and during an armed

encounter with police that immediately followed his confrontation of the

robbery victims. The entire episode occurred within a brief period and was

confined to a localized vicinity in the City of Philadelphia. Hence, Appellant’s

firearm possession was continuous and uninterrupted in nature and

constituted only a single offense under §§ 6105, 6106, and 6108.                  Since

Appellant committed only one violation of each of the offenses codified at

§§ 6105, 6106, and 6108, the trial court erred in imposing multiple

sentences for those violations. As such, we vacate the multiple sentences

imposed upon Appellant for violating §§ 6105, 6106, and 6108. We remand

to allow the trial court to consider an appropriate single sentence for

Appellant’s violations of each of these provisions.

       We    are   not    persuaded      by    the   arguments   forwarded   by    the

Commonwealth in defense of multiple sentences. As a preliminary matter,

we reject the Commonwealth’s reliance upon 42 Pa.C.S.A. § 9765 to support




____________________________________________


8
  There is no dispute in this case that: 1) Appellant’s criminal history
revealed a disqualifying prior conviction for purposes of § 6105; 2) Appellant
lacked the proper credentials for carrying a firearm as required for § 6106;
and, 3) Appellant carried his firearm on a public street in Philadelphia
despite the prohibition found in § 6108.




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its position. Section 9765, entitled Merger of Sentences,9 comes into play

where a single act results in a violation of two distinct penal provisions,

thereby necessitating a comparison of the elements of each offense to

determine whether one of the provisions requires proof of a fact that the

other does not.       Commonwealth v. Baldwin, 985 A.2d 830, 836 (Pa.

2009), quoting Blockburger v. United States, 284 U.S. 299 (1932). Here,

by contrast, Appellant’s claim centers upon whether he committed one

continuous act or multiple acts in violation of the respective firearms

provisions. Thus, § 9765 has no relevance to the precise claim before us.

        The Commonwealth’s citation to Andrews, supra is also unavailing.

In Andrews, the defendant and another individual, both armed with

handguns, robbed an apartment complex in the City of Philadelphia. Later

the same day, approximately two hours later, the defendant and his partner

robbed a second apartment complex in a different part of town. Both actors

employed handguns to facilitate the robberies. Shortly thereafter, the men
____________________________________________


9
    Section 9765 provides:

        § 9765. Merger of sentences

        No crimes shall merge for sentencing purposes unless the crimes
        arise from a single criminal act and all of the statutory elements
        of one offense are included in the statutory elements of the
        other offense. Where crimes merge for sentencing purposes, the
        court may sentence the defendant only on the higher graded
        offense.

42 Pa.C.S.A. § 9765.



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were arrested.    At the conclusion of a joint trial, the jury found the

defendant and his co-defendant guilty of five counts of robbery, two counts

of criminal conspiracy, and two counts of PIC.

      On appeal to this Court, the defendant alleged that principles of double

jeopardy and statutory construction required that we vacate his multiple

consecutive sentences for conspiracy and PIC. Citing the Commonwealth’s

motion to proceed with a consolidated trial, the defendant reasoned that if

the robberies constituted a continuous, overlapping common scheme, then

the inchoate crimes of conspiracy and PIC constituted a single, continuing

offense such that only one sentence should have been imposed.                We

rejected the defendant’s claim, concluding that nothing about the concept of

consolidation   compelled   merger   of his   sentences.    In   addition,   we

distinguished our then-recent decision in Woods, holding that it was

possible for the trial court to conclude that the two robberies -- and, hence,

the defendant’s two PIC convictions -- were separate and unrelated criminal

offenses. See Andrews, 720 A.2d at 769 n.8.

      Our Supreme Court accepted Andrews for further review.          Initially,

the Supreme Court noted that the defendant’s challenge to the multiple

sentences imposed for his inchoate crimes such as PIC was properly viewed

as a challenge to the sufficiency of the evidence, rather than a legality of

sentence claim. Andrews, 768 A.2d at 313. This was because the relevant

inquiry was fact intensive and focused primarily upon the actor’s intent, as


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demonstrated by the circumstances surrounding his unlawful possession,

which determined “whether his repeated use of the firearm was the product

of a singular criminal intent or reflective of multiple manifestations of intent

associated with each act.” Id. If repeated, criminal use of the firearm could

be inferred from the facts, then multiple sentences for PIC could be imposed

without implicating double jeopardy concerns.               See id. (“resolution of the

double jeopardy issue is inextricably intertwined with the sufficiency of the

evidence”).       Ultimately, the Supreme Court in Andrews upheld the

defendant’s multiple convictions and sentences for PIC because it found that

the evidence was sufficient to show that the defendant twice developed the

intent    to   employ    his   firearm    criminally   in    furtherance   of    separate

conspiratorial agreements.         Id. at 318.     In reaching this conclusion, the

Supreme Court expressly differentiated the firearm offense at issue in

Woods, which did not require a showing of intent, from the defendant’s

convictions for PIC, where intent constituted the touchstone of the actor’s

criminal liability. Id. at 317.

         In the present case, Appellant brings a claim that is directly parallel to

the one we considered in Woods.10 As in Woods, Appellant’s crimes were

complete when he acquired unlawful possession of a handgun.                     Moreover,

his intent to employ the firearm for criminal purposes was irrelevant to a

____________________________________________


10
     Appellant does not challenge his convictions or sentences for PIC.



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finding of guilt under §§ 6105, 6106, and 6108. Thus, unlike the situation in

Andrews, where an assessment of the surrounding circumstances showed

that the commission of multiple criminal offenses supported compound

sentences, there could be no similar showing in the instant case. Therefore,

Woods requires that we vacate Appellant’s sentences for his firearms

convictions.

       Appellant’s third claim alleges that the trial court imposed illegal

mandatory minimum sentences pursuant to 42 Pa.C.S.A. § 9712 when it

fashioned punishments for Appellant’s convictions on three counts of robbery

and one count of aggravated assault. Appellant’s Brief at 33, citing Alleyne

v. United States, 133 S.Ct. 2151 (U.S. 2013). The Commonwealth does

not dispute that § 9712 has been invalidated by prior decisions of this Court.

It claims, however, that Appellant has waived his present challenge and that

the Alleyne-offending provisions of § 9712 are severable from remaining

portions of the statute.

       We    are    constrained      to    disagree   with   the   Commonwealth’s

contentions.11 It is firmly established that a challenge to the application of a


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11
  Several members of this Court, including this author, have recognized that
cogent arguments support a finding that the Allenye-offending provisions of
Pennsylvania’s mandatory minimum sentencing schemes are severable.
Commonwealth v. Newman, 99 A.3d 86, 104-106 (Pa. Super. 2014) (en
banc) (Mundy, J. dissenting); Commonwealth v. Bizzel, 2014 WL 6756277
at *4-*11 (Pa. Super. 2014) (Bowes, J. concurring). To date, however,
(Footnote Continued Next Page)


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mandatory minimum sentence raises concerns as to the legality of the

sentence and cannot be waived. Commonwealth v. Wately, 81 A.3d 108,

118 (Pa. Super. 2013) (en banc). Moreover, several recent decisions issued

by this Court have declared that § 9712 is unconstitutional and that the

Alleyne-offending provision are not severable from the remainder of the

statute. See, e.g., Commonwealth v. Ferguson, 2015 WL 49438, *5-*8

(Pa. Super. 2015); Commonwealth v. Valentine, 101 A.3d 801, 809, 811-

812 (Pa. Super. 2014).          Hence, we must vacate Appellant’s sentence and

remand for resentencing without consideration of the mandatory minimum

sentences provided in § 9712.

      In his fourth claim, Appellant presents a challenge to the discretionary

aspects of his sentence.         In view of our dispositions of Appellant’s second

and third issues, which remanded this case for resentencing, we decline to

review Appellant’s discretionary sentencing claim.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.




                       _______________________
(Footnote Continued)

these views have not carried the day. However, our Supreme Court is
currently considering the issue of severability in several cases.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015




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