J-S79025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

NELSON JAMES SIMMONS,

                         Appellant                   No. 567 EDA 2014


        Appeal from the Judgment of Sentence of February 2, 2009
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0001338-2008

BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 13, 2015

      Appellant, Nelson James Simmons, appeals from the judgment of

sentence entered on February 2, 2009, as made final by the denial of his

post-sentence motion on February 11, 2009. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      [On January 9, 2006, at 7:25 a.m.], the Pennsylvania State
      Police w[ere] contacted by Jon Tyner [(“Tyner”)], a businessman
      from Ohio, and dispatched to the Mobil[]              Station[] on
      Catasauqua Road in Lehigh County, Pennsylvania.               Tyner
      reported that at approximately 5:50 [a.m.], two [] men knocked
      on his motel room door at the Red Roof Inn on Catasauqua Road
      in Lehigh County, claiming that they had caused damage to his
      rental vehicle that was parked directly outside of his motel room.
      Tyner consequently opened the motel room door and [Appellant]
      and [c]o-[d]efendant Alexander Lopez [(“Lopez”)] entered the
      motel room. [] Lopez pointed a black semi-automatic handgun
      with silver trim at [Tyner]. Tyner was placed face down on the
      bed in the motel room, and his head was covered with a [t]-



* Retired Senior Judge assigned to the Superior Court.
J-S79025-14


     shirt. [Appellant] and [] Lopez then ransacked the motel room
     and took $80.00 in cash and a cellular phone valued at
     approximately $100.00 to $175.00. Neither [Appellant] nor
     [Lopez] had permission to take the cell phone or the cash.

     In an effort to obtain more money, [] Lopez took Tyner’s credit
     cards. [Appellant] left with the credit cards to withdraw funds
     from Tyner’s bank account. At one point, [] Lopez placed the
     handgun to Tyner’s head and a brief struggle ensued. Tyner
     realized that [] Lopez was becoming increasingly agitated and
     consequently suggested that he would accompany [Lopez] to the
     bank to withdraw money. [] Lopez wrote a note on the back of
     one of Tyner’s business cards to inform [Appellant] of the new
     plans. [Appellant] had Tyner place a knit hat over his head. As
     [] Lopez and Tyner were leaving the motel room, [Appellant]
     returned. Therefore, all three [] men drove in Tyner’s rental
     vehicle to the Bank of America, also located on Catasauqua
     Road.     [Appellant] and Tyner unsuccessfully attempted to
     effectuate a withdrawal at the bank.       [Lopez] remained in
     Tyner’s vehicle. While [Appellant] and [Lopez] were conversing
     with each other and appeared to be distracted, Tyner seized the
     opportunity to escape. Tyner fled to the Mobil[] gas station on
     Catasauqua Road and contacted the authorities.

     [Tyner]’s rental car, a Pontiac Gram Am, was subsequently
     found in an alley behind the Red Roof Inn and a black and silver
     B[e]rsa .45 caliber semi-automatic handgun was located on the
     front passenger seat of the vehicle. In the motel room, the
     authorities found [Tyner’s] business card with the note on it.
     Fingerprints were lifted from Tyner’s business card on which
     [Lopez] had written the note to [Appellant]. These fingerprints
     matched those of [] Lopez. The authorities also recovered three
     [] credit cards and a gray [t]-shirt. No latent fingerprints were
     attained from the three [] credit cards.        Additionally, the
     surveillance tapes from the Bank of America were retrieved and
     depicted [Appellant] and Tyner utilizing the bank’s ATM machine.
     Furthermore, a knit hat was recovered from [Tyner].

     On June 20, 2007, notification was received that the DNA profile
     obtained from the knit hat matched that of [Appellant]. As a
     result of this DNA match, the authorities attempted to locate
     [Appellant]. On November 1, 2007, Trooper Raymond Judge of
     the Pennsylvania State Police learned that [Appellant] was in
     Lehigh Valley Hospital, Cedar Crest Campus, Allentown, Lehigh


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J-S79025-14


        County, as a result of being the victim of a shooting. Thereafter,
        a search warrant was executed on November 14, 2007, ordering
        that [Appellant] submit two [] vials of blood. The DNA obtained
        from [Appellant]’s vials of blood matched the DNA found in the
        knit hat. Consequently, after Mirandizing[1 Appellant,] and
        with his consent, [Appellant] was interviewed on December 6,
        2007. [Appellant] provided a verbal and written statement to
        the police which implicated him in the [crime. Appellant] also
        identified his [co-conspirator as] Lopez.

Trial Court Opinion, 3/11/14, at 1-2 (internal citations, honorifics, and

footnote omitted; first and third paragraph breaks added).

        The procedural history of this case is as follows. On April 22, 2008,

Appellant was charged via criminal information with kidnapping,2 robbery,3

robbery of a motor vehicle,4 possession of a firearm by a prohibited person,5

theft by unlawful taking,6 receiving stolen property,7 simple assault,8 and

conspiracy to commit robbery.9        On November 20, 2008, Appellant was

convicted of kidnapping, robbery, robbery of a motor vehicle, and conspiracy


1
    See Miranda v. Arizona, 384 U.S. 436 (1966).
2
    18 Pa.C.S.A. § 2901(a)(2).
3
    18 Pa.C.S.A. § 3702.
4
    18 Pa.C.S.A. § 3701(a)(1)(ii).
5
    18 Pa.C.S.A. § 6105(a)(1).
6
    18 Pa.C.S.A. § 3921.
7
    18 Pa.C.S.A. § 3925.
8
    18 Pa.C.S.A. § 2701(a)(3).
9
    18 Pa.C.S.A. § 903.


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J-S79025-14


to commit robbery. He was subsequently sentenced to an aggregate term of

29 to 80 years’ imprisonment.       Appellant’s sentencing guidelines were

calculated using the deadly weapon enhancement/possessed matrix.

     Appellant filed a notice of appeal which this Court dismissed.

Commonwealth v. Simmons, 4 A.3d 198 (Pa. Super. 2010) (per curiam)

(unpublished memorandum), appeal denied, 14 A.3d 827 (Pa. 2011).         On

January 5, 2012, Appellant filed a pro se petition pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.       Counsel was

appointed and, on April 12, 2012, the PCRA court granted Appellant’s

petition and reinstated his direct appellate rights nunc pro tunc. Appellant

filed his nunc pro tunc appeal and, on March 20, 2013, this Court affirmed

Appellant’s judgment of sentence. Commonwealth v. Simmons, 69 A.3d

1297 (Pa. Super. 2013) (unpublished memorandum).

     On April 24, 2013, Appellant filed a second pro se PCRA petition.

Counsel was appointed and, on January 16, 2014, the PCRA court granted

Appellant’s second PCRA petition and once again reinstated his direct

appellate rights nunc pro tunc. This timely appeal followed.10

     Appellant presents one issue for our review:

     Whether the [t]rial [c]ourt erred in sentencing [Appellant] under
     the [d]eadly [w]eapon [e]nhancement/[p]ossessed [m]atrix

10
   On February 18, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On March 3, 2014, Appellant filed his concise statement.
On March 11, 2014, the trial court issued its Rule 1925(a) opinion.
Appellant’s lone issue on appeal was included in his concise statement.


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      without the jury finding [Appellant] did [p]ossess a [d]eadly
      [w]eapon during the commission of the crime[?]

Appellant’s Brief at 4.11

      Appellant argues that his right to a jury trial, as guaranteed by the

Sixth Amendment to the United States Constitution, was infringed when he

was sentenced pursuant to the deadly weapon enhancement without a

factual finding by the jury that he possessed a deadly weapon during the

commission of the crime.        Such a claim challenges the legality of his

sentence.     See Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super.

2014) (citation omitted). As such, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Gentry, 101 A.3d 813, 817

(Pa. Super. 2014) (citation omitted).

      As this Court has recently explained:

      In Apprendi [v. New Jersey, 530 U.S. 466 (2000)], the
      Supreme Court of the United States 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.
      Stated another way, it is unconstitutional for a legislature to
      remove from the jury the assessment of facts that increase the
      prescribed range of penalties to which a criminal defendant is
      exposed. It is equally clear that such facts must be established
      by proof beyond a reasonable doubt.

      Subsequently in Alleyne v. United States, 133 S.Ct. 2151
      (2013), the [Supreme Court of the United States] held that any
      fact that increases the mandatory minimum sentence for a crime

11
   To the    extent that Appellant challenges the discretionary aspects of his
sentence,    that claim is waived for failure to include it in his statement of
questions    presented and failure to develop that position in the argument
section of   his brief. See Pa.R.A.P. 2116; 2119(a).


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        is an element that must be submitted to the jury and found
        beyond a reasonable doubt. The Alleyne majority reasoned that
        while Harris v. United States, 536 U.S. 545 (2002), limited
        Apprendi to facts increasing the statutory maximum, the
        principle applied in Apprendi applies with equal force to facts
        increasing the mandatory minimum.          This is because it is
        impossible to dissociate the floor of a sentencing range from the
        penalty affixed to the crime, and it is impossible to dispute that
        facts increasing the legally prescribed floor aggravate the
        punishment. Thus, this reality demonstrates that the core crime
        and the fact triggering the mandatory minimum sentence
        together constitute a new, aggravated crime, each element of
        which must be submitted to the jury.

Commonwealth v. Conaway, 2014 WL 6678948, *6 (Pa. Super. Nov. 26,

2014) (internal alterations, ellipses, quotation marks, and citations omitted).

        In this case, Appellant argues that the deadly weapon enhancement

must be considered an element of the offense and, therefore, must be found

beyond a reasonable doubt by the jury. Under the Sentencing Code, “When

the [trial] court determines that [an] offender possessed a deadly

weapon during the commission of the current conviction offense, the [trial]

court    shall   consider   the   [deadly   weapon    enhancement/p]ossessed

[m]atrix[.]”     204 Pa.Code § 303.10(a)(1) (emphasis added).       The deadly

weapon enhancement/possessed matrix provides longer guideline sentences

than the basic sentencing matrix but does not change the statutory

maximum sentence or impose a mandatory minimum sentence. Under well-

settled Pennsylvania law, sentencing guidelines – in contrast to minimum

sentencing provisions – are not mandatory in nature. See Commonwealth

v. Newman, 99 A.3d 86, 95 (Pa. Super. 2014) (en banc).            Therefore, as



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with all sentencing guidelines, a trial court may sentence outside of the

guidelines, i.e., either above or below, as calculated using the deadly

weapon enhancement/possessed matrix.

      This Court has explicitly rejected the same argument advanced by

Appellant and held that a trial court may find that the deadly weapon

enhancement      applies   without     offending      Alleyne     or    Apprendi.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 (Pa. Super. 2014)

(en banc); see Commonwealth v. Valentine, 101 A.3d 801, 813 (Pa.

Super.   2014)   (Gantman,    P.J.,   concurring)12   (citation   omitted)   (“The

sentencing court[ ] could apply a deadly weapon enhancement . . . without

running afoul of [this Court’s Alleyne jurisprudence.]”).              Accordingly,

Appellant’s right to a jury trial was not infringed by the trial court’s finding

that the deadly weapon enhancement applied in this case.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2015




12
   All three panel members joined President Judge Gantman’s concurring
opinion.


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