J-S30044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LERONE BRUNSON

                            Appellant                  No. 1911 EDA 2014


            Appeal from the Judgment of Sentence March 18, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1007951-2005


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED SEPTEMBER 11, 2015

        Appellant Lerone Brunson appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

bench trial convictions for robbery, theft by unlawful taking, receiving stolen

property, possessing an instrument of crime (“PIC”), and simple assault. 1

After careful review, we affirm Appellant’s convictions, but vacate his

judgment of sentence and remand for resentencing.

        The trial court accurately sets forth the relevant facts of this appeal as

follows:

           On September 2, 2005, at 10:45 pm, Thomas Nealon was
           inside a Chinese food store on the 2000 block of Hunting
           Park Avenue in Philadelphia. After he placed his order,
           Nealon put $4 on the counter to pay for his food order. At
____________________________________________


1
    18 Pa.C.S. §§ 3701, 3921, 3925, 907, and 2701, respectively.
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       that same time, [Appellant] entered the store, “grabbed
       [Nealon’s] money off the counter, [and] dipped into [his]
       right pocket and [his] left pocket and grabbed the rest of
       [his] money.” Nealon felt what he believed to be a gun
       jammed into his stomach by [Appellant].        During the
       robbery, Nealon focused on [Appellant’s] gun, black shirt,
       and black pants. He tried to look at [Appellant’s] face but
       was too scared to do so; Nealon did observe that
       [Appellant] was a black male. Nealon described the gun as
       being about the “size of his hand.”

       After stealing Nealon’s money, [Appellant] exited the store
       and turned left down the street. After [Appellant] exited
       the store, the employee behind the counter called the
       police. Less than 5 minutes later, police officers arrived at
       the Chinese food store. According to Nealon, “the police
       got [there] fast.” The officers drove Nealon to the end of
       the same block where the store was and asked Nealon if
       he recognized a person they had stopped as the person
       who robbed him. Nealon responded that he recognized his
       clothing was the same as the person who robbed him; he
       specifically responded, “I believe so.” Nealon identified
       [Appellant] at trial as the person who robbed him. During
       the preliminary hearing, Nealon testified that he was “not
       sure” if [Appellant] was the person who robbed him and
       that he “can’t tell [the preliminary hearing judge]
       positively” whether [Appellant] robbed him.             Police
       returned to Nealon $74, which was recovered from
       [Appellant] and was the same amount that Nealon testified
       was stolen from him.

                                *    *    *

       Philadelphia Police Officer Paul Siwek received a radio call
       for a robbery in progress on the 2100 block of Hunting
       Park Avenue on September 3, 2005, at 10:50 pm. Officer
       Siwek was “right down the street” from the Chinese food
       store when he received the call. Officer Siwek testified he
       was “at the perfect location at the perfect time” to respond
       to the call. As he approached the store, Officer Siwek
       observed [Appellant], who was wearing a black shirt and
       black pants, and was approximately one half of a block
       from the Chinese food store. [Appellant] was walking on
       the same side of the street as the store, and, if he had

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J-S30044-15


          exited the store, [Appellant] would have turned left from
          the store given where he was stopped. No one else on the
          street matched the description provided by Nealon. Officer
          Siwek observed what he believed was a black gun sticking
          out of [Appellant’s] right pocket.     [Appellant] actually
          possessed an air gun that looked like a Glock or “real gun.”
          Officer Siwek also recovered $74 from [Appellant], which
          was comprised of three $20 bills, one $10 bill, and four $1
          bills.

                                       *       *   *

          At trial, [Appellant] admitted that he was at the Chinese
          food store that night but denied that he robbed Nealon.
          [Appellant] testified that two teenagers entered the store,
          one of them pulled out a gun, and they robbed Nealon.
          [Appellant] knocked the gun out of the teenager’s hand
          and picked it up off of the floor. Both teenagers ran out of
          the store.[2] [Appellant] decided to walk to the police
          station to “turn the gun in and tell them the situation,
          what happened.”

Trial Court Opinion, filed November 18, 2014, at 1-3 (citations to the record

omitted).

        On March 18, 2014, the court sentenced Appellant to five to ten (5-10)

years’ incarceration for robbery followed by five (5) years’ probation for

PIC.3    The record does not reflect that Appellant filed a post-sentence


____________________________________________


2
  Appellant also testified that one of the teenagers was pointing a gun at
Nealon and Appellant, and that Nealon fell down to the floor during the
robbery. N.T., 10/31/12, at 71-72. Appellant testified that he then called
the police two times from the Chinese Food store phone to report the
robbery. Id. at 75.
3
  Appellant’s convictions for theft and receiving stolen property merged for
sentencing purposes. The court imposed a determination of guilt with no
(Footnote Continued Next Page)


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motion. Nevertheless, on June 27, 2014, the court filed an order denying

Appellant’s post-sentence motion, and Appellant filed a notice of appeal that

same day. On July 15, 2014, the court ordered Appellant to file a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b)

within twenty-one (21) days. Appellant filed a Pa.R.A.P. 1925(b) statement

on March 6, 2015, almost seven months after the twenty-one days had

expired and after the court had already issued its Pa.R.A.P. 1925(a) opinion.

      Appellant raises the following issues for our review:

          DID THE COURT COMMIT ERROR BY CONVICTING
          APPELLANT OF ROBBERY WHERE THE EVIDENCE AT TRIAL
          WAS INSUFFICIENT TO ESTABLISH THAT APPELLANT
          [THREATENED]   SERIOUS  BODILY    INJURY  WHILE
          COMMITTING A THEFT?

          DID THE COURT COMMIT ERROR BY CONVICTING
          APPELLANT OF THEFT BY UNLAWFUL TAKING WHERE THE
          EVIDENCE AT TRIAL WAS INSUFFICIENT TO ESTABLISH
          THAT APPELLANT TOOK THE PROPERTY OF ANOTHER WITH
          THE INTENT TO DEPRIVE HIM THEREOF?

          DID THE COURT COMMIT ERROR BY CONVICTING
          APPELLANT OF POSSESSING AN INSTRUMENT OF CRIME
          WHERE THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO
          ESTABLISH   THAT   APPELLANT    POSSESSED    AN
          INSTRUMENT OF CRIME WITH INTENT TO EMPLOY IT
          CRIMINALLY?

Appellant’s Brief at 6.


                       _______________________
(Footnote Continued)

further penalty on Appellant’s simple assault conviction. Appellant received
credit for time served.




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        Before we address the merits of Appellant’s claims, we must address

the timeliness of this appeal. Although Appellant claims to have filed a post-

sentence motion on March 18, 2014,4 the same day as his judgment of

sentence, and the court denied a post-sentence motion on June 27, 2014,5

the record does not reflect that Appellant ever filed a post-sentence motion.6
____________________________________________


4
    Appellant’s Brief at 7.
5
    The order states:

           AND NOW, this 27th day of June, 2014, after consideration
           of the POST SENTENCE MOTION by the Attorney for the
           Defendant it is ORDERED that the POST SENTENCE
           MOTION IS DENIED.

Trial Court Order denying post-sentence motion, filed June 27, 2014.
6
   The docket does not show an entry of a post-sentence motion. We
contacted the trial court to request a copy of any post-sentence motion, but
the court was unable to locate one. The appeals unit district attorney
suggested Appellant might have filed an oral post-sentence motion,
however, he did not. The sentencing transcript reveals that Appellant
expressed his intent to file a motion in the future, and the court specifically
directed him to file a written post-sentence motion:

           [DEFENSE COUNSEL]: [Appellant], good afternoon. I just
           need to inform you that you’ve been sentenced by the
           Honorable Judge Anders in connection with this matter, I
           need to inform you that you have ten days to file in writing
           a motion for reconsideration of this sentence and 30 days
           to file an appeal to the Superior Court of the state of
           Pennsylvania, which includes, it must be in writing within
           30 days from the disposition of this matter, which also
           must be in writing. Do you understand?

           [APPELLANT]: (Witness nodding head).

(Footnote Continued Next Page)


                                           -5-
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      Regarding the effect of a post-sentence motion on the timeliness of an

appeal, we observe:

          A defendant has ten days after the imposition of sentence
          to file a post-sentence motion. Pa.R.Crim.P. 720(A)(1). An
          untimely post-sentence motion does not preserve issues
          for appeal. Commonwealth v. Hockenberry,. 689 A.2d
          283, 288 ([Pa.Super.]1997).

          If no post-sentence motion is filed within the ten-day time
          period, the defendant has thirty days from sentencing to
          file a direct appeal. Pa.R.Crim.P. 720(A)(3). This Court
          does not have jurisdiction to hear an untimely appeal.
          Commonwealth v. Green, 862 A.2d 613, 615
          (Pa.Super.2004).

Commonwealth v. Wrecks, 931 A.2d 717, 719-20 (Pa.Super.2007).

          Under Commonwealth v. Dreves, 839 A.2d 1122, 1128
          (Pa.Super.2003) (en banc ), a post-sentence motion nunc
                       _______________________
(Footnote Continued)

          THE COURT: If you cannot do so – you may retain the
          services of an attorney. Just make sure whatever you do
          is in writing, okay. Do you wish at this point to exercise
          any of your rights either to file a post-sentence motion
          challenging the weight or sufficiency or appeal this verdict?

          [APPELLANT]: I would like to appeal it.

          [THE COURT]: All right. So [Defense Counsel], I think it
          would be appropriate to file a post-sentence motion in the
          same way that you’ve done. Just say it is the verdict, the
          sufficiency and the weight. The sentence itself –

          [DEFENSE COUNSEL]:          I understand, Your Honor.
          However, I just was retained for the trial and [my]
          agreement states that. I will not be available.

N.T., March 18, 2014, pp. 16-17. Appellant did not thereafter file a written
motion.



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         pro tunc may toll the appeal period, but only if two
         conditions are met. First, within 30 days of imposition of
         sentence, a defendant must request the trial court to
         consider a post-sentence motion nunc pro tunc. “The
         request for nunc pro tunc relief is separate and distinct
         from the merits of the underlying post-sentence motion.”
         Id. at 1128–29. Second, the trial court must expressly
         permit the filing of a post-sentence motion nunc pro tunc,
         also within 30 days of imposition of sentence. Id. at 1128
         & n. 6. “If the trial court does not expressly grant nunc pro
         tunc relief, the time for filing an appeal is neither tolled nor
         extended.” Id. at 1128. Moreover, “[t]he trial court's
         resolution of the merits of the late post-sentence motion is
         no substitute for an order expressly granting nunc pro tunc
         relief.” Id. at 1129.

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa.Super.2015).

      Instantly, the record does not reflect that Appellant filed either a

written or an oral post-sentence motion. Further, there is no indication that

he requested, or that the court granted him, nunc pro tunc relief. Moreover,

the trial court’s ruling on the merits of the late or missing post-sentence

motion is not a substitute for an order explicitly granting nunc pro tunc

relief. See Capaldi, supra. Because Appellant did not file a post-sentence

motion, he did not toll the appeal period, which expired on April 17, 2014.

Thus, his notice of appeal, filed June 27, 2014, is facially untimely.

      Nevertheless, we decline to quash this appeal because we find there

has been a breakdown in the court’s operation.         See Commonwealth v.

Leatherby, 116 A.3d 73, 79 (Pa.Super.2015) (“[An appellant] should not be

precluded from appellate review based on what was, in effect, an

administrative breakdown on the part of the trial court.”).


                                      -7-
J-S30044-15


       Although neither the record nor the docket reflects the filing of a post-

sentence motion, the transcript from June 27, 2014, the day the court

denied the post-sentence motion, suggests a breakdown in the court’s

operation. The transcript provides, in its entirety:

          THE COURT: [Replacement Counsel], you’re appointed to
          see if there’s any after discovered evidence that may be
          the basis for some ineffectiveness by trial counsel.[7] You
          have conducted your investigation and you have what to
          offer to the [c]ourt?

          [REPLACEMENT COUNSEL]: There’s nothing in addition to
          offer to the [c]ourt, that was prior to. What I can say is
          that, if the way the [c]ourt has worded it, it may not allow
          [Appellant] to do a direct file appeal. I think we have to
          word – I did a motion for a rest of judgment. This [c]ourt
          continued it for possible new discovered evidence and that
          it is denied because we continued it for then another
          purpose, just for me to find after discovered evidence, he
          would have had a direct file appeal rights. I did review my
          appellate procedure, that there is after discovered
          evidence within the motion for a rest of judgment, this
          [c]ourt could have reviewed and still can review anything
          on a motion for a rest of judgment.

          THE COURT: Right. And we’re also within the 120-date
          period to decide the post-sentence motions, so your post-
          sentence motion, how it is styled, would be denied –

          [REPLACEMENT COUNSEL]: Thank you.

          THE COURT: -- without prejudice to you filing any appeal
          and it’s my view, an appeal would be timely.


____________________________________________


7
  The trial court appointed replacement counsel on March 21, 2014. The
docket reflects that the court granted replacement counsel’s motions for
continuance on March 21, 2014 and on May 30, 2014.



                                           -8-
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          [REPLACEMENT COUNSEL]: So I will file a timely appeal
          and attach a letter to this [c]ourt, requesting to be
          withdrawn and have new counsel appointed.

          THE COURT: That’s fine.

          [REPLACEMENT COUNSEL]: Thank you, Your Honor.

N.T., 6/27/14, at 4-5.

       Although Appellant failed to file a post-sentence motion or a timely

appeal,8 and the trial court does not have the power to fix jurisdictional

problems created by the ineffective assistance of counsel,9 the court

misadvised Appellant of his appellate rights, creating a breakdown in the

court process.10     See Commonwealth v. Patterson, 940 A.2d 493, 499

(2007) (“the trial court’s failure to comply with Rule 720 constitutes a

breakdown that excuses the untimely filing of Appellant’s notice of appeal.”);

____________________________________________


8
  It is the appellant’s duty to ensure that the record is complete for purposes
of appellate review, however “where the failure to transmit the record was
caused by an extraordinary breakdown in the judicial process, an appellant
should not be denied merits review in the Superior Court.” Commonwealth
v. Almodorar, 20 A.3d 466, 467 (Pa.2011) (internal quotation marks and
citations omitted).
9
  Generally, counsel’s failure to file a timely post-sentence motion or direct
appeal would implicate a claim of ineffective assistance of counsel, which
should be raised in a petition for relief pursuant to the Post Conviction Relief
Act (“PCRA”) 42 Pa.C.S. 9541-9546. See Commonwealth v. Holmes, 79
A.3d 562, 576 (Pa.2013) (“claims of ineffective assistance of counsel are to
be deferred to PCRA review”).
10
   We note that the trial court properly advised Appellant of his post-
sentence rights at sentencing. The court, however, misadvised Appellant of
his post-sentence rights on June 27, 2014.



                                           -9-
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Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa.Super.2003) (“the

trial court’s misstatement of appeal period…operated as a breakdown in the

court’s operation”).   Further, the transcript suggests the presence of a

possible motion that was not docketed due to counsel or the court’s error.

See Commonwealth v. Leatherby, 116 A.3d 73, 78-79 (Pa.Super.2015)

(declining to quash untimely appeal where appellant was not at fault).

Thus, we decline to quash this appeal for Appellant’s failure to file a post-

sentence motion, or a timely post-sentence motion, or a timely appeal.

     We must next address Appellant’s failure to timely comply with

Pa.R.A.P. 1925(b).

     In   Commonwealth       v.   Lord,     our   Supreme   Court   held   that

“[a]ppellants must comply whenever the trial court orders them to file a

Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any

issues not raised in a 1925(b) statement will be deemed waived.” 719 A.2d

306, 309 (1998). In Commonwealth v. Castillo, the Supreme Court re-

affirmed the bright line rule set forth in Lord that mandates strict

compliance with Rule 1925(b). 888 A.2d 775, 780 (Pa.2005). In Castillo,

the Court specifically voiced its disproval of “prior decisions of the

intermediate courts to the extent that they…created exceptions to Lord and

have addressed issues that should have been deemed waived.” Id.

     Here, on July 15, 2014, the court ordered Appellant to file a Pa.R.A.P.

1925(b) statement within twenty-one (21) days, and Appellant filed his


                                   - 10 -
J-S30044-15


statement on March 6, 2015, after the twenty-one days had expired. The

record reflects that appellate counsel withdrew and new appellate counsel

was appointed on July 23, 2014. The record does not reflect, however, that

new appellate counsel requested, or that the court granted, an extension of

time to file the Pa.R.A.P. 1925(b) statement.

     When the trial court has addressed the issues presented in an untimely

Rule 1925(b) statement, however, we need not remand and may address

the merits of the issues presented.    Commonwealth v. Thompson, 39

A.3d 335, 340-41 (Pa.Super.2012). We observe:

        While it is technically accurate that a complete failure to
        file, or failure to timely file, a Rule 1925(b) statement
        results in waiver of the issues, [Commonwealth v.
        Burton, 973 A.2d 428, 432-33 (Pa.Super.2009)], under
        the current version of the rule, a finding of waiver does not
        necessarily end the trial court’s analysis or require it to
        ignore the issues raised.        Because the untimely or
        complete failure to file a Rule 1925(b) statement waives
        issues on appeal, counsel is per se ineffective. Id. Under
        Rule 1925(c)(3), the remedy for per se ineffectiveness in
        criminal cases is no longer collateral relief, but to remand
        to the trial court, either for the filing of a Rule 1925(b)
        statement nunc pro tunc or the filing of a Rule 1925(a)
        opinion addressing the issues raised in an untimely
        1925(b) statement.       Id.   Thus, to avoid unnecessary
        delay, when a trial court orders the appellant in a criminal
        case to file a Rule 1925(b) statement and the appellant
        files it untimely, the trial court’s Rule 1925(a) opinion
        should note the per se ineffectiveness of counsel, appoint
        new counsel if it deems it necessary, see West, supra at
        658, and address the issues raised on appeal. See
        Burton, supra at 434 (holding remand is not necessary
        where trial court addressed issues in untimely Rule
        1925(b) statement). Similarly, where, as here, counsel
        fails to file a Rule 1925(b) statement before the trial court
        files a Rule 1925(a) opinion, the opinion should note the

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            ineffectiveness of counsel, permit counsel to file a
            statement nunc pro tunc and address the issues raised in a
            subsequent Rule 1925(a) opinion. The trial court may
            appoint new counsel if original counsel fails to comply with
            the order because a failure to comply with the order would
            prohibit appellate review. See id. at 432 (“Filing of Rule
            1925 concise statement when ordered is a ‘prerequisite to
            appellate merits review’ and is ‘elemental to an effective
            perfection of the appeal.’ ”).

Thompson, 39 A.3d at 341.

      In this case, the trial court filed its Pa.R.A.P. 1925(a) opinion on

November 18, 2014, before Appellant filed his Pa.R.A.P. 1925(b) statement.

In his Pa.R.A.P. 1925(b) statement and in his brief, Appellant challenges the

sufficiency of the evidence for his convictions for robbery, unlawful taking

and PIC.      In its Pa.R.A.P. 1925(a) statement, the trial court addresses

Appellant’s challenge to the sufficiency of the evidence for all of his

convictions. Thus, there is no need for the trial court to file a supplemental

Pa.R.A.P. 1925(a) statement. We note that counsel is per se ineffective, but

continue to address the merits of Appellant’s claims.

      In his combined issues on appeal, Appellant challenges the sufficiency

of the evidence for his convictions. Appellant argues that the evidence only

shows that Appellant was present at the crime scene.         He claims that the

only witness to the crime could not identify Appellant as the perpetrator

because he could only give a vague and contradictory description of his

clothing.     He concludes that there was insufficient evidence to convict




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Appellant of robbery, theft by unlawful taking, or possessing an instrument

of crime. We disagree.

      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [trier] of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

      Appellant challenges the sufficiency of the evidence for the following

convictions, which are defined by statute.

                              § 3701. Robbery

         (a) Offense defined.--

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           (1) A person is guilty of robbery if, in the course of
           committing a theft, he:

              (i) inflicts serious bodily injury upon another;

              (ii) threatens another with or intentionally puts him
              in fear of immediate serious bodily injury;

              (iii) commits or threatens immediately to commit
              any felony of the first or second degree;

              (iv) inflicts bodily injury upon another or threatens
              another with or intentionally puts him in fear of
              immediate bodily injury;

              (v) physically takes or removes property from the
              person of another by force however slight; or

              (vi) takes or removes the money of a financial
              institution without the permission of the financial
              institution by making a demand of an employee of
              the financial institution orally or in writing with the
              intent to deprive the financial institution thereof.

18 Pa.C.S. § 3701.

           § 3921. Theft by unlawful taking or disposition

        (a) Movable property.--A person is guilty of theft if he
        unlawfully takes, or exercises unlawful control over,
        movable property of another with intent to deprive him
        thereof.

        (b) Immovable property.--A person is guilty of theft if
        he unlawfully transfers, or exercises unlawful control over,
        immovable property of another or any interest therein with
        intent to benefit himself or another not entitled thereto.

18 Pa.C.S. § 3921.

               § 907. Possessing instruments of crime




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        (a) Criminal instruments generally.--A person commits
        a misdemeanor of the first degree if he possesses any
        instrument of crime with intent to employ it criminally.

        (b) Possession of weapon.--A person commits a
        misdemeanor of the first degree if he possesses a firearm
        or other weapon concealed upon his person with intent to
        employ it criminally.

        (c) Unlawful body armor.--A person commits a felony of
        the third degree if in the course of the commission of a
        felony or in the attempt to commit a felony he uses or
        wears body armor or has in his control, custody or
        possession any body armor.

        (d) Definitions.--As used in this section, the following
        words and phrases shall have the meanings given to them
        in this subsection:

        “Body armor.” Any protective covering for the body, or
        parts thereof, made of any polyaramid fiber or any resin-
        treated glass fiber cloth or any material or combination of
        materials made or designed to prevent, resist, deflect or
        deter the penetration thereof by ammunition, knife, cutting
        or piercing instrument or any other weapon.

        “Instrument of crime.” Any of the following:

           (1) Anything specially made or specially adapted for
           criminal use.

           (2) Anything used for criminal purposes and possessed
           by the actor under circumstances not manifestly
           appropriate for lawful uses it may have.

        “Weapon.” Anything readily capable of lethal use and
        possessed under circumstances not manifestly appropriate
        for lawful uses which it may have. The term includes a
        firearm which is not loaded or lacks a clip or other
        component to render it immediately operable, and
        components which can readily be assembled into a
        weapon.

18 Pa.C.S. § 907.

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      In this case, Nealon, Officer Siwek and Appellant testified at a bench

trial on October 31, 2013. Nealon testified that a black male wearing a black

shirt and pants, later identified as Appellant, took money from the counter in

front of him at a Chinese store, pressed a gun against him, and took money

out of his pocket. Officer Siwek testified that he responded to the scene and

found Appellant located a half a block from the Chinese store with a gun

sticking out of his back pocket. Appellant testified that he was in the store,

but that two Hispanic boys took the money from the counter and from

Nealon’s pocket and that Appellant just picked up the gun for safety. The

court, as the trier of fact, was free to believe all, part, or none of the

evidence.   See Hansley, supra.      Viewing the testimony in the light most

favorable to the Commonwealth, there was sufficient evidence to enable the

court to find every element of the crimes beyond a reasonable doubt.

Appellant’s three issues on appeal merit no relief.

      We now consider the legality of Appellant’s mandatory minimum

sentence under 42 Pa.C.S. § 9712.       Although Appellant did not raise any

issue related to the legality of his sentence, we note that questions

regarding the legality of a sentence “are not waivable and may be raised sua

sponte by this Court.”     Commonwealth v. Watley, 81 A.3d 108, 118

(Pa.Super.2013) (en banc), appeal denied, 95 A.3d 277 (Pa.2014). Further,

we note that issues regarding the Supreme Court of the United States’

decision in Alleyne v. United States, __ U.S. __, 133 S.Ct 2151, 186 L.Ed


                                    - 16 -
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2d   341     (2013),   directly   implicate     the   legality   of   the   sentence.

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super.2014), appeal

granted, ___ A3d ___ 2015 WL 4755651.

      Our standard of review of questions involving the legality of a sentence

is as follows:

           A challenge to the legality of a sentence…may be
           entertained as long as the reviewing court has jurisdiction.
           It is also well-established that if no statutory authorization
           exists for a particular sentence, that sentence is illegal and
           subject to correction. An illegal sentence must be vacated.
           Issues relating to the legality of a sentence are questions
           of law. Our standard of review over such questions is de
           novo and our scope of review is plenary.

Wolfe, 106 A.3d at 801-02 (citations omitted).

      In this case, Appellant was sentenced under the following statute:

              § 9712. Sentences for offenses committed with
                                 firearms

           (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 a replica of a firearm,
           whether or not the firearm or replica was loaded or
           functional, 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

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           defendant shall not be required prior to conviction, but
           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.

42 Pa.C.S. § 9712.

        In Alleyne, the Supreme Court held that the Due Process Clause of

the Federal Constitution requires each factor that increases a mandatory

minimum sentence be submitted to a jury and found beyond a reasonable

doubt. Alleyne, 133 S.Ct at 2163. Based upon Alleyne, this Court stated

in dicta in Watley that 18 Pa.C.S. § 750811 and 42 Pa.C.S. § 9712.112 are

unconstitutional insofar as they permit a judge to automatically increase a

defendant’s sentence based on a preponderance of the evidence standard for

factors other than a prior conviction. Watley, 81 A.3d at 117 n. 4.

        More   recently,    in   Commonwealth         v.    Newman,       99   A.3d   86

(Pa.Super.2014) (en banc), following our dicta in Watley, we held that the

preponderance       of     the   evidence      standard    in   section   9712.1(c)   is

____________________________________________


11
     § 7508. Drug trafficking sentencing and penalties.
12
     § 9712.1. Sentences for certain drug offenses committed with firearms.




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unconstitutional under Alleyne. We then addressed whether it was possible

to continue enforcing the remaining subsections of section 9712.1 after

severing subsection (c). We held that section 9712.1, as a whole, was no

longer workable, because subsection (c) was “essentially and inseparably

connected” with the mandatory minimum sentencing provision in subsection

(a). Newman, supra at 101. Further, in Commonwealth v. Valentine,

101    A.3d    801    (Pa.Super.2014),         this   Court   declared   section   9712

unconstitutional and found that “it is manifestly the province of the General

Assembly to determine what new procedures must be created in order to

impose mandatory minimum sentences in Pennsylvania following Alleyne.

We cannot do so.” Valentine, 101 A.3d at 811. 13

       Pursuant to Valentine, because the trial court sentenced Appellant

under the unconstitutional provision of section 9712, we must vacate

Appellant’s judgment of sentence and remand for resentencing without

application of the mandatory minimum.

       Convictions affirmed. Judgment of sentence vacated; case remanded

for resentencing. Jurisdiction is relinquished.



____________________________________________


13
  In Commonwealth v. Hopkins, our Supreme Court affirmed our holding
that the preponderance of the evidence standard in 18 Pa.C.S. § 6317(a) is
unconstitutional and that the “violative provisions [are] not severable.” 117
A.3d 247 (Pa.2015).




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     President Judge Emeritus Ford Elliott joins the memorandum.

     President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2015




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