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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
RENE FIGUEROA,                            :          No. 1355 EDA 2017
                                          :
                         Appellant        :


           Appeal from the Judgment of Sentence, January 23, 2015,
             in the Court of Common Pleas of Northampton County
                Criminal Division at No. CP-48-CR-0000620-2013


BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED AUGUST 03, 2018

        Appellant, Rene Figueroa, appeals from the judgment of sentence

entered by the Court of Common Pleas of Northampton County on

January 23, 2015. After careful review, we affirm.

        The trial court provided the following recitation of the facts of this

case:

             On the night of December 1, 2012, [appellant] and
             [Javier Rivera-Alvarado (“Rivera-Alvarado”)] were at
             the    Puerto    Rican      Beneficial   Society   Club
             (“Puerto Rican Club”), a social club located on
             East Third Street in Bethlehem, Northampton
             County, Pennsylvania.         [Appellant] was at the
             Puerto Rican Club to watch a boxing match, as were
             the    following     individuals:    Yolanda    Morales,
             [Rivera-Alvarado], Orialis and Angel Figueroa
             (“Orialis” and “Angel”),[Footnote 7] and Luis Rivera
             (“Rivera”).    Orialis, Angel, and Rivera were the
             alleged victims of [appellant] and [Rivera-Alvarado]
             and are members of the same family. Ms. Morales
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            was a friend of the alleged victims’ family. On the
            night in question, a shootout between [appellant]
            and Orialis occurred at approximately 2:30 a.m. on
            the street outside the Puerto Rican Club, resulting in
            the death of Ms. Morales and gunshot wounds to
            [appellant], [Rivera-Alvarado], Orialis, Angel, and
            Rivera. After the shootout, the injured individuals
            were transported to the emergency trauma center at
            St. Luke’s Hospital.     There, Detective Martinez
            conducted interviews with a number of the involved
            individuals.

                  [Footnote 7] Orialis Figueroa and
                  Angel Figueroa are brothers with no
                  relation to [appellant]. . . .

Trial court opinion, 5/26/15 at 4-5.

      The trial court also provided the following procedural history:

            [Appellant] has appealed to the Superior Court from
            the judgment of sentence imposed on January 23,
            2015. Following a jury trial held from September 29,
            2014, to October 31, 2014, [appellant] was
            convicted of involuntary manslaughter as a
            misdemeanor of the first degree,[Footnote 1]
            aggravated assault as a felony of the first
            degree,[Footnote 2] firearms not to be carried
            without a license as a felony of the third
            degree,[Footnote 3] and receiving stolen property as
            a felony of the second degree.[Footnote 4]

                  [Footnote 1] 18 Pa.C.S.A. § 2504.

                  [Footnote 2] [18 Pa.C.S.A.] § 2702(a)(1).

                  [Footnote 3] [18 Pa.C.S.A.] § 6106(a)(1).

                  [Footnote     4]     [18        Pa.C.S.A.]
                  §§ 3903(a)(2), 3925.

            On January 23, 2015, [appellant] was sentenced to
            thirty to sixty months in state prison for involuntary
            manslaughter, a consecutive period of 108 to


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            216 months in state prison for aggravated assault, a
            consecutive period of forty-two to eighty-four
            months in state prison for firearms not to be carried
            without a license, and a concurrent period of thirty to
            sixty months in state prison for receiving stolen
            property.       In the aggregate, [appellant] was
            sentenced to 180 to 360 months in state prison, or
            fifteen to thirty years.

            On February 9, 2015, [appellant] filed a Notice of
            Appeal.[Footnote 5] However, on September 16,
            2015, the Superior Court, at docket number 421 EDA
            2015, dismissed [appellant’s] appeal because his
            attorney   failed   to   file  an   appellate   brief.
            Subsequently, [appellant] sought the restoration of
            his appellate rights by way of a petition for post-
            conviction collateral relief, which the [trial] court
            granted in an Order filed on January 13, 2017. The
            instant appeal followed.

                  [Footnote 5] [Appellant] did not file an
                  optional post-sentence motion pursuant
                  to   Pennsylvania   Rule   of  Criminal
                  Procedure 720.

            On March 30, 2017, [appellant], through new
            counsel, filed a “Concise Statement of Errors
            Complained of on Appeal Pursuant to Rule of
            Appellate     Procedure   1925(b)”   (“Concise
            Statement”)[.]

Trial court opinion, 4/25/17 at 1-2.

      Appellant raises the following issues for our review:

            1.    Whether a mistrial occurred on October 23,
                  2014 when Detective Fabian Martinez was
                  questioned by the prosecution about a
                  co-defendant’s statements suggesting that
                  appellant was handed a gun by a bouncer
                  shortly before the shootout.         [Notes of
                  testimony, 10/23/2014, at 140:24 – 141:21]
                  [This was after the court read a cautionary
                  instruction to the jury as follows: “Let me tell


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                   you that any statement that co-[defendant]
                   made can only be used against co-[defendant].
                   So with regard to any statements that the
                   detective relays to you that were made by
                   co-defendant, you cannot consider them
                   against appellant.”]    [N.T., 10/23/2014,
                   139:4-11]?

             2.    Whether a fatal Bruton[1] violation occurred
                   where    Detective   Fabian  Martinez     used
                   appellant’s   name     while   testifying   to
                   co-[defendant’s] statement and failed to move
                   for mistrial. [N.T., 10/23/2014, at 141:1 –
                   147:2]     [See opinion of trial court dated
                   May 26, 2015, page 13.]?

             3.    Whether      the    Commonwealth    committed
                   prosecutorial misconduct during the improper
                   closing remarks that resulted in prejudice to
                   . . . appellant that could not be cured, and
                   therefore, warranted a mistrial [statements
                   excluded     at   trial during  closing  N.T.
                   October 30, 2014 at 263:11 – 263:21 and
                   properly raised by counsel N.T. October 30,
                   2014, at 271:23 – 284:10]?

             4.    Whether the trial court erred in denying a
                   motion for judgment of acquittal due to the
                   sufficiency of the evidence where the
                   Commonwealth did not prove the necessary
                   element of malice, the mens rea to sustain a
                   conviction of aggravated assault?

             5.    Whether the verdict was against the weight of
                   the evidence where the Commonwealth’s own
                   evidence at trial established a justifiable
                   defense of others by self-defense, and
                   therefore, did not prove its case beyond a
                   reasonable doubt?




1   Bruton v. United States, 391 U.S. 123 (1968).


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             6.    Whether the crime of involuntary manslaughter
                   and aggravated assault merge for purposes of
                   sentencing. [See Title 42 Pa.C.S.A. § 9765]?

             7.    Whether the trial court erred in sentencing . . .
                   appellant pursuant to the deadly weapon
                   enhancement possessed matrix at 204 Pa.
                   Code § 303.17(A) where the jury failed to
                   specifically conclude that . . . appellant used a
                   deadly weapon in the course of the commission
                   of a crime. Alleyne v. United States?

Appellant’s brief at 4-5 (full capitalization omitted, bracketed material

appears in original, emphasis supplied).

        Before we can begin to address appellant’s issues, we must first reach

a decision on an issue the Commonwealth raised in its brief.              The

Commonwealth contends that appellant’s entire appeal should be quashed

for failure to timely file his notice of appeal to this court.           (See

Commonwealth’s brief at 7.)

        As noted by the trial court, appellant was sentenced on January 23,

2015, and did not file post-sentence motions, electing to file a direct appeal

with this court on February 9, 2015.       We dismissed appellant’s appeal at

No. 421 EDA 2015 on September 16, 2015 after appellant failed to file an

appellate brief.    In response to a petition filed pursuant to the Post

Conviction Relief Act2 (hereinafter, “PCRA”), the trial court reinstated

appellant’s direct appeal rights nunc pro tunc on January 13, 2017, and

ordered appellant to file a direct appeal to this court within 30 days.    On


2   42 Pa.C.S.A. §§ 9541-9546.


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February 17, 2017, four days after appellant’s time to file an appeal

nunc pro tunc expired,3 appellant filed a motion with the trial court seeking

a second restoration of his right to a direct appeal nunc pro tunc, claiming

that appellant’s counsel misplaced the trial court’s January 13, 2017 order.

The Commonwealth did not object to appellant’s direct appeal rights being

reinstated nunc pro tunc.     The trial court granted appellant’s motion on

February 17, 2017, and appellant filed notice of the instant appeal on

March 6, 2017.

      The Commonwealth contends that appellant’s appeal should be

quashed on jurisdictional grounds. Specifically, the Commonwealth relies on

then-Judge (now Justice) Mundy’s (hereinafter, “Judge Mundy”) dissent in

Commonwealth v. Leatherby, 116 A.3d 73 (Pa.Super. 2015).                In her

dissent, Judge Mundy stated that we “have held that a trial court may not

sua sponte reinstate a defendant’s [] direct appeal rights nunc pro tunc in

the absence of a PCRA petition being filed before the court.” Id. at 87 n.4,

citing Commonwealth v. Turner, 73 A.3d 1283, 1285 n.2 (Pa.Super.

2013), appeal denied, 91 A.3d 162 (Pa. 2014).

      The case at bar, however, does not involve a trial court improperly

reinstating appellant’s direct appeal rights nunc pro tunc sua sponte.

Rather, appellant filed a motion with the trial court entitled “Motion to Allow


3  February 12, 2017, fell on a Sunday. Accordingly, appellant’s deadline to
file an appeal nunc pro tunc was extended to the following business day,
February 13, 2017. See 1 Pa.C.S.A. § 1908.


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Appeal to the Superior Court Nunc Pro Tunc.” In Turner, the defendant

filed a “Petition to File Superior Court Appeal Nunc Pro Tunc” after his time

for filing a direct appeal had expired. Id. at 1285. We determined that it

appeared that the trial court in Turner treated the defendant’s petition as a

timely first petition filed pursuant to the PCRA, and that the trial court

properly reinstated the defendant’s direct appeal rights.       Id. at 1286.

Accordingly, similar to the Turner court, we find that the trial court appears

to have treated appellant’s February 17, 2017 motion as a petition filed

pursuant to the PCRA and properly reinstated appellant’s direct appeal

rights. Therefore, the instant appeal before us was timely filed, and we have

jurisdiction to consider the appeal on its merits.4


4 In candor, this writer has concerns with the timeliness holding in Turner.
In Turner, upon the filing of a timely PCRA petition, the court granted a
direct appeal nunc pro tunc to be filed within 30 days of July 26, 2011.
However, no appeal was thereafter filed, and the court sua sponte
reinstated direct appeal rights nunc pro tunc a second time on August 29,
2011. Again, no appeal was filed; and on April 18, 2012, appellant, through
new counsel, filed a petition to appeal nunc pro tunc, which the court once
again granted. Thereafter, appellant filed the appeal. The Turner court
reasoned that once the original nunc pro tunc relief was granted, appellant
had one year to file the appeal relying on Commonwealth v. Karanicolas,
836 A.2d 940, 944 (Pa.Super. 2003), and Commonwealth v. Lewis, 718
A.2d 1262 (Pa.Super. 1998), appeal denied, 737 A.2d 1224 (Pa. 1999).
My concern is that in both Karanicolas and Lewis, there were nunc pro
tunc direct appeals properly filed within 30 days of the courts’ orders.
Following the decision by this court on the direct appeals, a subsequent
PCRA petition was treated as a first petition. It would seem that to reset the
finality of the judgment of sentence, there must be a direct appeal nunc pro
tunc filed. Here, as in Turner, appellant failed to timely comply with the
initial nunc pro tunc grant, and then sought an additional petition to
request that the rights be reinstated a second time.           I believe the
Commonwealth makes a strong argument that the subsequent petition


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                                      I. and II.

        In his first two issues on appeal, appellant argues that the trial court

erred in not granting appellant’s motion for a mistrial resulting from

Detective Fabian Martinez’s trial testimony.         (Appellant’s brief at 14-21.)

The Commonwealth contends that appellant failed to move for a mistrial at

the time of the testimony in question, thereby waiving the issues on appeal.

(Commonwealth’s brief at 12.)

        The Pennsylvania Rules of Criminal Procedure mandate that, “[w]hen

an event prejudicial to the defendant occurs during trial only the defendant

may move for a mistrial; the motion shall be made when the event is

disclosed. Otherwise, the trial judge may declare a mistrial only for reasons

of manifest necessity.” Pa.R.Crim.P. 605(B) (emphasis added).

        Here, appellant argues that the trial court should have declared a

mistrial after Detective Martinez improperly used appellant’s name when

testifying about co-defendant Javier Rivera-Alvarado’s5 statements given in

the intensive care unit at St. Luke’s Hospital. (Appellant’s brief at 14-16.)

Appellant     specifically   cites   to   the   following   testimony   from   the

Commonwealth’s direct examination of Detective Martinez for his contention

that the trial court erred in refusing to grant a mistrial:




should be treated as an untimely PCRA. However, as a panel of this court,
we are bound by the decision in Turner.

5   Mr. Rivera-Alvarado is not a party to this appeal.


                                          -8-
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           Q:    Did [Mr. Rivera-Alvarado] say anything
                 occurred as he was leaving the club with his
                 wife?

           A:    Well, after he made a statement, he was again
                 advised that we were trying to figure out what
                 happened, we needed to know everything he
                 saw.

                 He did state that, on his way out, one of the
                 bouncers had come out of a back room and
                 show [appellant] --

           Q:    That wasn’t -- that wasn’t --

           A:    I apologize.

           THE COURT:      Disregard that statement, ladies and
           gentlemen.

           MR. MCMAHON: Judge, I want -- I reserve.

Notes of testimony, 10/23/15 at 140-141.

     In his brief, appellant argues that his counsel’s statement, “Judge, I

want -- I reserve,” is tantamount to a motion for a mistrial. This argument

is belied by the record. During a conference with the judge shortly after the

above testimony took place, appellant’s trial counsel stated that he was,

“ready to move for a mistrial,” which indicates that he had not yet done so.

(See id. at 145.) Nothing in the record shows that any motion for a mistrial

was made. Accordingly, we find that appellant did not adequately preserve

these issues for appeal, and the issues are thus waived.




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                                            III.

         In   his   third   issue   for   our   review,   appellant   avers   that   the

Commonwealth committed prosecutorial misconduct during its closing

argument to the jury. Specifically, appellant avers that the trial court erred

by not declaring a mistrial.        (Appellant’s brief at 23.) Rather than further

develop an argument, however, appellant stated:

               Each      Defense     Counsel,   the    Court,     and
               Commonwealth all went to great lengths to discuss
               their position with regard to why a mistrial should be
               granted and the Court’s decision to give a curative
               instruction. The depth of the discussion is simply too
               voluminous to put in the brief at this point.
               However, the discussion is incorporated herein by
               reference as though specifically set forth herein.
               Strategy of the Defense and strategy of the
               Commonwealth as well as the Court’s thoughts are
               all incorporated.

Id.

         Our supreme court has consistently held that “‘incorporation by

reference’ is an unacceptable manner of appellate advocacy for the proper

presentation of a claim for relief to [Pennsylvania appellate courts.]”

Commonwealth v. Briggs, 12 A.3d 291, 342 (Pa. 2011), cert. denied,

565 U.S. 889 (2011), citing Commonwealth v. Edmiston, 634 A.2d 1078,

1092 n.3 (Pa. 1993). The Pennsylvania Rules of Appellate Procedure further

prohibit any party from incorporating arguments from motions presented at

trial.    Id. at 343, citing Commonwealth v. Lambert, 797 A.2d 232,

237 n.4 (Pa. 2001).



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            The briefing requirements scrupulously delineated in
            our appellate rules are not mere trifling matters of
            stylistic preference; rather, they represent a studied
            determination by our Court and its rules committee
            of the most efficacious manner by which appellate
            review may be conducted so that a litigant’s right to
            judicial review as guaranteed by Article V, Section 9
            of our Commonwealth’s Constitution may be properly
            exercised. Thus, we reiterate that compliance with
            these rules by appellate advocates who have any
            business before [Pennsylvania appellate courts] is
            mandatory.

Id.

      Accordingly, we find that appellant has waived this issue on appeal.

                                         IV.

      In   his   fourth   issue   on    appeal,   appellant    contends    that   the

Commonwealth’s       evidence     was    insufficient   to   establish   the   malice

requirement for his aggravated assault conviction. We disagree.

                   In reviewing the sufficiency of the
                   evidence, we view all evidence admitted
                   at trial in the light most favorable to the
                   Commonwealth, as verdict winner, to see
                   whether there is sufficient evidence to
                   enable [the fact finder] to find every
                   element of the crime beyond a
                   reasonable doubt.        This standard is
                   equally applicable to cases where the
                   evidence is circumstantial rather than
                   direct so long as the combination of the
                   evidence links the accused to the crime
                   beyond a reasonable doubt. Although a
                   conviction must be based on “more than
                   mere suspicion or conjecture, the
                   Commonwealth need not establish guilty
                   to a mathematical certainty.




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            Commonwealth v. Coon, 695 A.2d 794, 797
            (Pa.Super. 1997). Moreover, when reviewing the
            sufficiency of the evidence, this Court may not
            substitute its judgment for that of the fact finder; if
            the record contains support for the convictions, they
            may not be disturbed. Commonwealth v. Marks,
            704 A.2d 1095, 1098 (Pa.Super. 1997), citing
            Commonwealth v. Mudrick, 507 A.2d 1212, 1213
            (Pa. 1986).

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).

            Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the finder 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. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011),

appeal dismissed as improvidently granted, 54 A.3d 22 (Pa. 2012).

     The credibility and weight of the evidence are both matters that are in

the sole purview of the jury.    Specifically, when considering whether the

evidence was sufficient to prove each element of each charge beyond a

reasonable doubt, we cannot assume the task of weighing evidence and

making independent conclusions of fact.      Commonwealth v. Lewis, 911

A.2d 558, 563 (Pa.Super. 2006) (citations omitted). “Any doubts regarding

[an appellant’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.” Id.




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     In order to sufficiently prove beyond a reasonable doubt for an

aggravated assault conviction that a defendant acted with malice by

establishing that while a defendant “did not have an intent to kill, [the

defendant] nevertheless displayed a conscious disregard for an unjustified

and extremely high risk that his actions might cause death or serious bodily

harm.” Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (internal

quotation marks and citations omitted).

     We agree with the trial court’s findings that the Commonwealth

introduced,

              sufficient evidence to demonstrate that [appellant]
              acted with malice.      The uncontroverted evidence
              demonstrated that in the early-morning hours of
              December 2, 2012, a melee and a gunfight erupted
              in the street outside of the Puerto Rican . . . Club in
              the City of Bethlehem. The individuals involved in
              the melee, many of whom were running back and
              forth in and out of the club, numbered in the double
              digits. There were two shooters involved in the
              gunfight, and [appellant], as he admitted in his
              closing argument, was undoubtedly one of them.
              ([Notes of testimony], 10/30/2014 at 109:19-23.)
              At some point during that gunfight, Angel Figueroa
              was shot, and the jury concluded that [appellant]
              shot him. Under these circumstances, [appellant],
              by shooting a gun in the presence of numerous other
              people in a darkened city street, certainly
              “consciously    disregarded     an    unjustified  and
              extremely high risk that his actions might cause
              death or serious bodily injury . . . [or] could
              reasonably anticipate [that] death or . . . serious
              bodily injury would likely and logically result.”

Trial court opinion, 4/25/17 at 7, quoting Commonwealth v. McClendon,

874 A.2d 1223, 1229 (Pa.Super. 2005).


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      Accordingly, appellant’s fourth issue is without merit.

                                      V.

      Appellant next avers that the verdict was against the weight of the

evidence, as the Commonwealth’s evidence established appellant’s argument

of self-defense or defense of others.        (See appellant’s brief at 25.)

Challenges to the weight of the evidence must be raised before the trial

court in the form of either a written or an oral motion for a new trial at any

time before sentencing or in a post-sentence motion. Commonwealth v.

Kinney, 157 A.3d 968, 972 (Pa.Super. 2017), appeal denied, 170 A.3d

971 (Pa. 2017), citing Pa.R.Crim.P. 607.

      Appellant contends that because his direct appeal rights were restored

nunc pro tunc by the trial court, that Rule 607’s requirement that the issue

be preserved for appeal in either a written or an oral motion is “eviscerated.”

(See appellant’s brief at 26.) Appellant does not point to any authority that

permits him to bypass the requirements of Rule 607 simply because his

direct appeal rights were restored nunc pro tunc.               To the contrary,

restoration of direct appeal rights does not automatically preserve any and

all issues that may be raised on appeal.           Accordingly, we find that

appellant’s weight of the evidence issue is waived on appeal.

                                      VI.

      For his sixth issue on appeal, appellant averred that the trial court

erred by not merging his sentences for aggravated assault and involuntary



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manslaughter.     In his brief, appellant concedes that because the two

sentences related to two different victims, the sentences would not merge.

(See appellant’s brief at 28; trial court opinion, 4/25/17 at 8.)

                                     VII.

      In his seventh and final issue on appeal, appellant contends that the

trial court sentenced appellant using the deadly weapons enhancement

pursuant to 204 Pa. Code § 303.17(B), and that the deadly weapons

enhancement is unconstitutional in light of the Supreme Court of the United

States’ decision in Alleyne v. United States, 570 U.S. 99 (2013).

      Specifically, appellant is challenging the legality of his sentence, by

claiming that the deadly weapons used enhancement is unconstitutional

pursuant to Alleyne, as it required the trial court to determine whether

appellant used a deadly weapon in the commission of the crimes for which

he was convicted. (Appellant’s brief at 29.) Appellant, however, offers little

more than a bald statement that the sentence is illegal because the trial

court relied on the definition of “firearm” contained in 42 Pa.C.S.A. § 9712.

Section   9712   was   found   to   be   unconstitutional   by   this   court   in

Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa.Super. 2014),

appeal denied, 124 A.3d 309 (Pa. 2015), as a result of the United States

Supreme Court’s holding in Alleyne and our holding in Commonwealth v.

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).

      This argument completely misses the mark.



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             Alleyne has no application to the sentencing
             enhancements at issue in this case. The parameters
             of Alleyne are limited to the imposition of
             mandatory minimum sentences, i.e., where a
             legislature has prescribed a mandatory baseline
             sentence that a trial court must apply if certain
             conditions are met. The sentencing enhancements
             at issue impose no such floor.            Rather, the
             enhancements only direct a sentencing court to
             consider a different range of potential minimum
             sentences, while preserving a trial court’s discretion
             to fashion an individual sentence. By their very
             character, sentencing enhancements do not share
             the attributes of a mandatory minimum sentence
             that the Supreme Court held to be elements of the
             offense that must be submitted to a jury. The
             enhancements do not bind a trial court to any
             particular sentencing floor, nor do they compel a trial
             court in any given case to impose a sentence higher
             than the court believes is warranted. They require
             only that a court consider a higher range of possible
             minimum sentences. Even then, the trial court need
             not sentence within that range; the court must only
             consider it. Thus, even though the triggering facts
             must be found by the judge and not the jury—which
             is one of the elements of an Apprendi[6] or Alleyne
             analysis—the enhancements that the trial court
             applied in this case are not unconstitutional under
             Alleyne.

Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa.Super. 2015), vacated

and remanded on other grounds, 149 A.3d 29 (Pa. 2016); see also

Valentine, 101 A.3d at 813 (Gantman, P.J. concurring).

       Accordingly, appellant’s sentence is a legal sentence, and appellant’s

seventh issue is without merit.

       Judgment of sentence affirmed.


6   Apprendi v. New Jersey, 530 U.S. 466 (2000).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 8/3/18




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