J-S53013-16

                              2017 PA Super 54



COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

NIKKI LEA VANDYKE

                         Appellant                   No. 1882 MDA 2015


        Appeal from the Judgment of Sentence September 28, 2015
            In the Court of Common Pleas of Bradford County
           Criminal Division at No(s): CP-08-CR-0000243-2015



BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

OPINION BY BOWES, J.:                                FILED MARCH 01, 2017

      Nikki Lea Vandyke appeals from the judgment of sentence imposed

following her plea to one count of retail theft, graded as a felony of the third

degree by the trial court based upon her prior New York convictions.

Appellant contends that the trial court erroneously relied on the factual basis

of these prior convictions to determine their similarity to Pennsylvania’s

retail theft statute. We agree, and vacate judgment of sentence.

      The facts are straightforward. On January 19, 2015, Appellant entered

a Dollar General store and took, without payment, a number of items worth

a total of fourteen dollars and fifty cents.   On August 6, 2015, Appellant

agreed to plead guilty to one count of retail theft, 18 Pa.C.S. § 3929, which

states in pertinent part:

* Former Justice specially assigned to the Superior Court.
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      (a)   Offense defined.--A person is guilty of a retail theft if he:

            (1) takes possession of, carries away, transfers or
            causes to be carried away or transferred, any
            merchandise displayed, held, stored or offered for
            sale by any store or other retail mercantile
            establishment with the intention of depriving the
            merchant of the possession, use or benefit of such
            merchandise without paying the full retail value
            thereof;

18 Pa.C.S. § 3929(a)(1).      The parties agreed that the trial court would

determine the grading of the offense, which is governed by the number of

prior offenses.

      (b) Grading.--

            (1) Retail theft constitutes a:

                  (i) Summary offense when the offense is
                  a first offense and the value of the
                  merchandise is less than $150.

                  (ii) Misdemeanor of the second degree
                  when the offense is a second offense and
                  the value of the merchandise is less than
                  $150.

                  (iii) Misdemeanor of the first degree
                  when the offense is a first or second
                  offense and the value of the merchandise
                  is $150 or more.

                  (iv) Felony of the third degree when the
                  offense is a third or subsequent offense,
                  regardless    of   the   value   of   the
                  merchandise.

18 Pa.C.S. § 3929(b).      Section 3929(b.1) sets forth the procedure for

determining the number of offenses:

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       (b.1) Calculation of prior offenses.--For the purposes of this
       section, in determining whether an offense is a first, second,
       third or subsequent offense, the court shall include a conviction,
       acceptance of accelerated rehabilitative disposition or other form
       of preliminary disposition, occurring before the sentencing on the
       present violation, for an offense under this section, an offense
       substantially similar to an offense under this section or under the
       prior laws of this Commonwealth or a similar offense under
       the statutes of any other state or of the United States.

18 Pa.C.S. § 3929(b.1) (emphasis added).

       On September 28, 2015, the parties appeared for sentencing.           The

Commonwealth introduced, over Appellant’s objections, police reports from

Appellant’s two petit larceny convictions in New York.1 That statute, in its

entirety, reads: “A person is guilty of petit larceny when he steals property.”

N.Y. P.L. § 155.25.       The trial court overruled the objections and reviewed

the facts in the reports, which indicated that Appellant stole items from a

grocery store and a J.C. Penney’s retail establishment.         The trial court

considered the facts in determining those offenses were similar in nature to

18 Pa.C.S. § 3929 and graded the instant offense as a felony of the third

degree.

       Appellant filed a timely notice of appeal and complied with the trial

court’s directive to supply a concise statement under Pa.R.A.P. 1925(b).

The court issued its opinion on April 28, 2015. The matter is now ready for

____________________________________________


1
  Appellant did not object to the lack of a certified record and we accept for
purposes of this appeal the existence of the convictions.



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our review.    Appellant raises one issue, “Whether the [c]ourt erred in

grading [Appellant]’s offense as a felony and sentencing her thereon?”

Appellant’s brief at 4.

      Interpretation of § 3929(b.1) is an issue of first impression.      That

section was inserted by Act No. 2013-131, S.B. No. 731, effective February

21, 2014.     Since this presents a question of statutory construction, our

standard of review is de novo and the scope of our review is plenary.

Commonwealth v. Barbaro, 94 A.3d 389, 391 (Pa.Super. 2014) (citation

omitted). Interpretation of a statute “is guided by the polestar principles set

forth in the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq. which has

as its paramount tenet that ‘[t]he object of all interpretation and

construction of statutes is to ascertain and effectuate the intention of the

General Assembly.’” Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011)

(quoting 1 Pa.C.S.A. § 1921(a)).

      The critical dispute is this: in determining whether Appellant’s New

York conviction for Petit Larceny is a similar offense to Pennsylvania’s retail

theft crime, was the court permitted to consider the facts underlying the

New York convictions, which were gleaned from police reports associated

with those cases?

      According to Appellant, the answer is no. She cites prior decisions of

this Court involving the assessment of foreign convictions for the purposes

of determining whether out-of-state convictions are crimes of violence or

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how to calculate the effect of foreign convictions on a defendant’s prior

record score.   Under Appellant’s proffered test, a court would look only to

the statutory elements of the foreign conviction to determine similarity.

Appellant maintains that since the New York statute generically captures any

property theft, the inquiry is over, as the mere existence of a petit larceny

conviction sheds no light on whether the conviction is for a retail theft.

       The Commonwealth counters that the statute at issue does not require

equivalency, only similarity.   The Commonwealth argues the intent of the

General Assembly, as expressed by the usage of the word similar as

opposed to equivalent, was to expand the number of offenses that would

constitute prior convictions for purposes of the § 3929(b.1) recidivist

provision.   The Commonwealth concedes that the felony grading cannot

stand if an elements analysis test is applied, as its invocation of the

recidivist provision rests on the facts underlying the New York convictions.

When    considering   the   actual   facts   of   Appellant’s     convictions,   the

Commonwealth highlights that those offenses would clearly constitute a prior

retail theft if committed in Pennsylvania.        Thus, the instant offense is

Appellant’s third conviction.

       Appellant does not offer an analysis of the pertinent statutory

language. We note that the statute at issue herein requires the trial court to

assess whether an out-of-state conviction is similar.           The cases cited by

Appellant do not interpret that word.

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     We nevertheless agree with Appellant that the principles discussed are

relevant to our statutory analysis, and we begin with Appellant’s invocations

of precedent.     The elements test urged by Appellant was set forth in

Commonwealth v. Bolden, 532 A.2d 1172 (Pa.Super. 1987), in which we

decided whether     a Colorado conviction for attempted second-degree

burglary was properly considered equivalent to the Pennsylvania offense of

criminal attempt (burglary). We set forth the following test:

     [A] sentencing court [must] carefully review the elements of the
     foreign offense in terms of classification of the conduct
     proscribed, its definition of the offense, and the requirements for
     culpability. Accordingly, the court may want to discern whether
     the crime is malum in se or malum prohibitum, or whether the
     crime is inchoate or specific. If it is a specific crime, the court
     may look to the subject matter sought to be protected by the
     statute, e.g., protection of the person or protection of the
     property. It will also be necessary to examine the definition of
     the conduct or activity proscribed. In doing so, the court should
     identify the requisite elements of the crime-the actus reus and
     mens rea-which form the basis of liability.

     Having identified these elements of the foreign offense, the court
     should next turn its attention to the Pennsylvania Crimes Code
     for the purpose of determining the equivalent Pennsylvania
     offense. An equivalent offense is that which is substantially
     identical in nature and definition [to] the out-of-state or federal
     offense when compared [to the] Pennsylvania offense. The
     record of the foreign conviction will be relevant also when it is
     necessary to grade the offense under Pennsylvania law or when
     there are aggravating circumstances.

Id. at 1175-76.    The Bolden Court then compared the elements of the

Colorado offense to the Pennsylvania offense. The Court found “identity of

both nature and definition and therefore offense equivalency.” Id. at 1177.



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Having concluded the offenses were equivalent, the facts of the Colorado

offense were not discussed.

     This test was adopted by the Supreme Court in Commonwealth v.

Shaw, 744 A.2d 739 (Pa. 2000). Therein, our Supreme Court was called on

to determine if Shaw’s New York drunk driving conviction was properly

considered an equivalent offense to this Commonwealth’s offense of driving

under the influence of alcohol.   New York’s drunk driving statute required

only that the person’s ability “to operate such motor vehicle is impaired by

the consumption of alcohol.” Id. at 743 (quoting N.Y. Veh. & Traf. Law §

1192(1)-(3)).   Shaw formally adopted the Bolden test, and determined

that the New York statute was not equivalent to Pennsylvania’s DUI offense.

     It logically follows that although both Pennsylvania's DUI offense
     and New York State's DWAI offense are designed to protect the
     person and prohibit drunk driving, New York State's DWAI
     offense protects the public from a broader range of reckless
     behavior than does Pennsylvania's DUI offense. This is due to
     the fact that New York State's DWAI offense casts a wider net of
     criminal liability, making it criminal for individuals to drink to the
     point of any impairment and then proceed to operate a motor
     vehicle, while Pennsylvania's DUI offense only makes it criminal
     for individuals to drink to the point of substantial impairment
     and then proceed to operate a motor vehicle. Thus, there is an
     appreciable difference in the elements of the in-state and out-of-
     state offenses at issue, and a corresponding difference in the
     conduct prohibited by the offenses which preclude a finding that
     the offenses are “equivalents”.

Id. at 744–45 (2000) (emphasis in original, footnoted omitted). Shaw did

not discuss the facts of the New York offense.




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       Thus, neither Shaw nor Bolden shed light on when and whether a

reviewing court may look beyond the elements of the crime to the actual

facts of the offense to determine equivalency. That issue was discussed in

Commonwealth v. Northrip, 985 A.2d 734 (Pa. 2009), in which our

Supreme Court applied Shaw/Bolden to determine if Northrip’s New York

conviction for Arson in the Third Degree, N.Y. Penal Law § 150.10, was an

equivalent offense to Arson as defined under 18 Pa.C.S. § 3301(a).          The

inquiry was necessitated by 42 Pa.C.S. § 9714, which required a mandatory

minimum sentence if the defendant had previously been convicted of a crime

of violence, which was further defined to include “arson as defined in 18

Pa.C.S. § 3301(a) . . . or an equivalent crime in another jurisdiction.” Id. at

548.

       In our decision, we stated that the “critical inquiry” was whether a

hypothetical scenario could be imagined that sufficed for conviction of Arson

in the Third Degree in New York yet was insufficient for an Arson conviction

under § 3301(a) in Pennsylvania.       We fashioned one such scenario and

concluded the offenses were not similar. Id. at 554. The Commonwealth

argued to our Supreme Court that a court should not engage in hypothetical

scenarios and must instead look to the actual facts underlying the

conviction, which, in Northrip’s case, demonstrated that his “conduct would

be     deemed    culpable   under   both    statutes,   thereby   making   them

equivalent[.]”   Id. at 741.    The Northrip Court agreed that considering

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hypothetical   scenarios   is   unwarranted,     but    also    rejected    the

Commonwealth’s fact-based approach:

     Both the statute's structure and its plain language demonstrate
     that for most crimes, the focus is not on the facts underlying
     a conviction, but rather on the statute that triggered the
     conviction. Section 9714's reach is targeted and specific. With
     respect to arson, the statute sets out a singular subsection-
     Section 3301(a). Section 9714 does the same with other crimes,
     listing either a single type of crime or a specific subsection or
     subsections of particular crimes, most of which are first-degree
     felonies. . . .

     Even more telling is the fact that with respect to burglary,
     Section 9714 does not set out a statutory subsection at all.
     Instead, it explicitly directs the sentencing court to apply a fact-
     based test for determining whether the prior conviction is a
     crime of violence. Section 9714 includes only one type of
     burglary in its purview-one that is not set out in a specific
     subsection of the burglary statute: “burglary of a structure
     adapted for overnight accommodation in which at the time of the
     offense any person is present.” 42 Pa.C.S. § 9714(g). See 18
     Pa.C.S. § 3502 (defining burglary as the unlawful entry onto a
     premises with the intent to commit a crime therein, regardless of
     whether someone else is present).

     This very specific and deliberate method of defining crimes of
     violence in Section 9714 demonstrates the Legislature's clear
     intent that with respect to all crimes except burglary, the focus
     is on the crime for which the defendant was convicted, not the
     factual scenario underlying that crime. Section 9714 both directs
     and limits the sentencing court's inquiry. In keeping with the
     statute's mandate then, we must focus on the crime of arson
     and its elements, not the facts underlying Appellee's conviction.

Id. (emphasis added, footnote omitted).          Thus, the Court attached

significance to the fact that only one of the enumerated crimes of violence,

burglary, specifically required a court to make a factual determination. Now-

Chief Justice Saylor authored a concurring opinion, expressing his view that


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      various complexities attend the administration of an
      enhancement scheme accounting for specific factual elements,
      including: provision for the determination of particular facts in a
      system employing general verdicts; and the involvement of
      constitutional issues connected with sentencing enhancements,
      such as those arising under Apprendi v. New Jersey, 530 U.S.
      466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In the face of
      such complexities, and consistent with the application of judicial
      restraint in defining the scope of criminal liability, I continue to
      support the notion that “equivalent crimes” are to be evaluated
      at an elemental level, absent more specific direction from the
      Legislature. Accord Commonwealth v. Shaw, 560 Pa. 296,
      744 A.2d 739 (2000). To the degree the General Assembly
      wishes to effectuate a change, there are various models
      available, which may be studied in devising a clear and coherent
      statutory framework that is consistent with governing law.

Id. at 745 (Saylor, J., concurring).

      Finally, we recently stated in Commonwealth v. Spenny, 128 A.3d

234 (Pa.Super. 2015), that a reviewing court may not consider police

reports in determining equivalency for purposes of calculating a defendant’s

prior record score.   Spenny interpreted 204 Pa.Code § 303.8(f)(1), which

states that “An out-of-state, federal or foreign conviction or adjudication of

delinquency is scored as a conviction for the current equivalent Pennsylvania

offense.” 204 Pa.Code § 303.8. We held that identifying the Pennsylvania

equivalent offense is limited to an examination of the foreign crime’s

elements.

      [W]hen determining the Pennsylvania equivalent statute for a
      prior, out-of-state conviction for prior record score purposes,
      courts must identify the elements of the foreign conviction and
      on that basis alone, identify the Pennsylvania statute that “is
      substantially identical in nature and definition” to the out-of-
      state offense. Bolden, 532 A.2d at 1176. Courts are not

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      tasked with ascertaining the statute under which the
      defendant would have been convicted if he or she had
      committed the out-of-state crime in Pennsylvania. Rather,
      we must compare “the elements of the foreign offense in terms
      of classification of the conduct proscribed, its definition of the
      offense, and the requirements for culpability” to determine the
      Pennsylvania equivalent offense. Northrip, 985 A.2d at 740
      (quoting Shaw, 744 A.2d at 743).

Spenny, supra at 250 (footnote omitted, emphasis added).           In reaching

this conclusion, we noted that the Legislature, post-Northrip, omitted the

language in § 9714 directing a court to consider the facts of an out-of-state

burglary offense:

      Subsequent to the Northrip decision, the Legislature did act,
      but in the opposite manner Justice Saylor predicted. Instead of
      amending section 9714 to require courts to review the facts
      underlying a prior, out-of-state conviction to determine its
      Pennsylvania equivalent, the Legislature removed from section
      9714 the factual determination required for a burglary
      conviction, replacing it with a specific subsection of the burglary
      statute. See 42 Pa.C.S.A. § 9714(g) (as amended July 5, 2012,
      effective Sept. 4, 2012).

Id. at 249.   We stated that “by amending section 9714(g) to remove any

factual analysis of the prior, out-of-state conviction, we presume that the

Legislature did so with the intent of adopting the Supreme Court's strict-

elements interpretation of the Bolden test.” Id. at 250.

      With this backdrop in mind, we now turn to our interpretation of §

3929(b.1) and its language, “similar offense under the statutes of any other

state.” We apply the following principles.

      In all matters involving statutory interpretation, we apply the
      Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq., which


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      directs us to ascertain and effectuate the intent of the General
      Assembly. 1 Pa.C.S. § 1921(a). To accomplish that goal, we
      interpret statutory language not in isolation, but with reference
      to the context in which it appears. See Consulting Eng'rs
      Council of Penna. v. State Architects Licensure Bd., 522 Pa.
      204, 560 A.2d 1375, 1377 (1989). A statute's plain language
      generally provides the best indication of legislative intent. See,
      e.g., McGrory v. Dep't of Transp., 591 Pa. 56, 915 A.2d 1155,
      1158 (2007); Commonwealth v. Gilmour Mfg. Co., 573 Pa.
      143, 822 A.2d 676, 679 (2003); Penna. Fin. Responsibility
      Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84,
      87 (1995) (“Where the words of a statute are clear and free
      from ambiguity the legislative intent is to be gleaned from those
      very words.”). Only where the words of a statute are ambiguous
      will we resort to other considerations to discern legislative intent.
      1 Pa.C.S. § 1921(c)[.]

Commonwealth v. Kingston, 143 A.3d 917, 922 (Pa. 2016) (emphasis

added, some citations omitted).

      Preliminarily, we note that Bolden and its related precedents do not

bind us, as the pertinent statutory language does not require equivalency or

even substantial similarity.   Rather, the foreign offense must merely be

similar. That word, as an adjective modifying offense, includes all offenses

“having characteristics in common, alike in substance or essentials.”

Equivalent offenses, on the other hand, would include only those offenses

“corresponding or virtually identical esp. in effect or function.”    Webster’s

Ninth New Collegiate Dictionary (1986).

      We cannot ignore the fact the Legislature chose similar as opposed to

equivalent. We agree with the Commonwealth that this choice of language

clearly indicates an intent to expand the number of offenses that would



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count as a prior conviction. However, we think that expansion simply means

that the elements test itself is loosened.      Under the elemental test for

equivalency announced in Bolden, we required “identity of both nature and

definition.” Bolden, supra at 1177. The similar offense test simply means

that more crimes will qualify under an elements analysis, and identity of

both nature and definition is not required. It does not mean we abandon the

elements test as the singular focus. As we stated in Spenny: “Courts are

not tasked with ascertaining the statute under which the defendant would

have been convicted if he or she had committed the out-of-state crime in

Pennsylvania.” Spenny, supra at 250. The Commonwealth, by highlighting

the facts of the New York offenses, is suggesting we must do exactly that.

      We draw support for our conclusion from Northrip’s statement that

“the statute’s structure and its plain language demonstrate that for most

crimes, the focus is not on the facts underlying a conviction, but rather on

the statute that triggered the conviction.”    Northrip, supra at 741.      The

same is true here. Nothing in § 3929(b.1) indicates that a reviewing court is

to consider the facts underlying the convictions. In Spenny, we deemed it

significant that the Legislature amended 42 Pa.C.S. § 9714 post-Northrip.

Then-Justice Saylor’s opinion cited a Georgia statute as a possible model for

permitting a court to review the facts underlying out-of-state convictions.

Id. at 745, n.2 (Saylor, J., concurring). That statute specifically directed the

reviewing court to determine if the foreign crimes, if committed within

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Georgia, would be felonies under Georgia law.       Id.    The statute herein

includes no such directive. The absence of any such language indicates that

the General Assembly intended reviewing courts to cabin their analysis to

the elements of the crimes. To the extent there is an ambiguity regarding

the ability of a court to consider the facts of the out-of-state conviction, we

are mindful that all penal provisions shall be strictly construed. 1 Pa.C.S. §

1928(b)(1). This principle requires that all ambiguities must be resolved in

favor of the accused.   Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa.

2015).

      Thus, we hold that the trial court improperly focused on the facts of

the offenses, not the similarity of the respective statutory elements. Since

the court applied the wrong test, and an interpretation of § 3929(b.1)

presents a question of law, we shall address whether the Petit Larceny crime

is similar, under an elements test, to retail theft as defined in 18 Pa.C.S. §

3929. We conclude that it is not, and the Commonwealth does not dispute

this conclusion. “Pennsylvania’s Retail Theft and New York’s Petit Larceny

. . . are, however, similar offenses justifying further analysis of the

factual basis from the . . . convictions in New York[.]” Commonwealth’s

brief at 4 (emphasis added). The petit larceny crime encompasses all thefts

of property. New York law further defines larceny at N.Y. P.L. § 155.05 as

stealing property through, inter alia, the following methods: embezzlement,

extortion, obtaining property by false pretenses, and the issuing of a bad

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check. Property is defined to include, inter alia, personal property, money,

computer data, or anything of value provided at a charge, including gas,

water, or electricity. N.Y. P.L. § 155.00. Thus, all individuals convicted of

stealing items from a retail store have committed petit larceny, but few

persons convicted of petit larceny have committed retail theft.2 Clearly, the

statute is similar to theft, but it is not similar to retail theft. Accordingly,

we find that Petit Larceny is not similar to Retail Theft, and Appellant’s

conviction should have been graded as a summary offense.

       Finally, we briefly note that Appellant’s guilty plea subjected her only

to a summary offense and a maximum of ninety days imprisonment.              18

Pa.C.S. § 106(c)(2).       This maximum was increased upon the trial judge’s

determination of facts. This sentence raises the concern expressed by Then-

Justice Saylor in his Northrip concurrence regarding Apprendi v. New

Jersey, 120 S.Ct. 2348, 2362-63 (2000), wherein the United States

Supreme Court held that “Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Id. at 2362-63.

____________________________________________


2
  A conviction for petit larceny would apply to the theft of items from a retail
establishment, but would also apply to theft of a bike from outside a home,
tools from a construction site, or any number of crimes not involving retail
thefts.



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      The United States Supreme Court has expressed that there are Sixth

Amendment concerns when a sentencing judge determines facts regarding

prior convictions.   The United States Supreme Court has, on several

occasions, discussed the issue in the context of the Armed Career Criminal

Act, 18 U.S.C.A. § 924, a federal statute which contains recidivist provisions

triggering a fifteen-year mandatory minimum sentence for certain federal

defendants who have three prior convictions for “violent felonies.”        In

Mathis v. United States, 136 S.Ct. 2243, 2252 (2016), the High Court

stated that

      This Court has held that only a jury, and not a judge, may find
      facts that increase a maximum penalty, except for the simple
      fact of a prior conviction. That means a judge cannot go
      beyond identifying the crime of conviction to explore the
      manner in which the defendant committed that offense.
      He is prohibited from conducting such an inquiry himself; and so
      too he is barred from making a disputed determination about
      “what the defendant and state judge must have understood as
      the factual basis of the prior plea” or “what the jury in a prior
      trial must have accepted as the theory of the crime.” He can do
      no more, consistent with the Sixth Amendment, than determine
      what crime, with what elements, the defendant was convicted of.

Id. at 2252 (citations omitted).     We need not discuss at length these

precedents; we simply recognize the High Court’s expression of Sixth

Amendment concerns when a court analyzes anything more than the

elements of a crime.     The Statutory Construction Act states that “the

General Assembly does not intend to violate the Constitution of the United

States or of this Commonwealth.” 1 Pa.C.S. § 1922(3). This point further



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militates in favor of a construction that limits the analysis to the elements of

the foreign crime without regard to the facts of those convictions.

      Accordingly, we vacate the judgment of sentence and remand for

proceedings consistent with this opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2017




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