J-S14003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KWESI HUDSON                               :
                                               :
                       Appellant               :   No. 2465 EDA 2018

         Appeal from the Judgment of Sentence Entered August 7, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003657-2017


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY LAZARUS, J.:                               FILED APRIL 24, 2019

        Kwesi Hudson appeals from the judgment of sentence, entered in the

Court of Common Pleas of Delaware County, after a jury convicted him of two

counts of robbery1 and two counts of false imprisonment.2 Hudson challenges

the legality of his mandatory minimum sentence. After careful review, we

affirm.

        On May 24, 2017, Trina Price was working the evening shift as a cashier

at a CVS pharmacy in Media, Delaware County. As the store was about to

close, Hudson approached Price with a ski mask over his face and a gun in his

hand.3 He threatened Price with the gun, demanding to be taken to the safe.
____________________________________________


1   18 Pa.C.S.A. § 3701(a)(1)(ii).

2   18 Pa.C.S.A. § 2903(a).

3   Later, the police discovered Hudson possessed a BB gun.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Price took Hudson to the CVS shift supervisor’s office, where the safe was

kept. Hudson forced Price into the office at gunpoint, ordered Price to lie on

the floor, and demanded Jackie Gallen, the shift supervisor, hand over the

money in the safe.    Gallen had been in the middle of a FaceTime video

conversation with her boyfriend, who contacted the police as he watched the

robbery unfold. Hudson directed Gallen to take the money from the safe and

put it in his bag. After Gallen emptied the contents of the safe, Hudson locked

the two women in the store’s rear bathroom.       Hudson then attempted to

escape out of the store’s back door, but set off an alarm in the process. The

police arrived shortly thereafter and arrested Hudson.

      On March 30, 2018, the jury found Hudson guilty of the above-

mentioned charges. On July 2, 2018, the Commonwealth notified Hudson of

its intent to invoke mandatory minimum penalties pursuant to 42 Pa.C.S.A. §

9714 (sentences for second and subsequent offenses).         N.T. Sentencing,

8/7/18, at 5.    At Hudson’s sentencing hearing on August 7, 2018, the

Commonwealth introduced Hudson’s certified criminal record from New

Jersey, which noted a twenty-year sentence of incarceration for first-degree

robbery, pursuant to N.J.S.A. § 2C:15-1(a)(2). Finding the requirements of

section 9714 satisfied, the court sentenced Hudson to consecutive ten to




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twenty year terms of incarceration for the two robbery convictions, followed

by nine to eighteen months’ imprisonment for false imprisonment.4

       Hudson did not file post-sentence motions. He, however, timely filed a

notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Hudson raises the following issues for our

review:

       1) Whether the mandatory sentences imposed pursuant to 42
          Pa.C.S.[A.] § 9714 for robbery [] are illegal[,] since the
          mandatory provision and its triggering facts were not charged
          in the information?

       2) Whether the mandatory sentences imposed pursuant to 42
          Pa.C.S.[A.] § 9714 for robbery [] are illegal because []
          Hudson’s prior robbery case pursuant to N.J.S.A. § 2C:15-
          1(a)(2) is not a crime of violence as defined by [s]ection
          9714(g), especially where the New Jersey statute is not
          equivalent to robbery under 18 Pa.C.S.[A.] § 3701(a)(1)(ii)?

Brief of Appellant, at 5.

       Initially, we note both of Hudson’s claims are properly before this Court

though neither was raised at sentencing or in post-sentence motions.5 Where

“[a]pplication of a mandatory minimum sentence gives rise to illegal sentence

concerns, even where the sentence is within the statutory limits[,] [l]egality

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4 The court set one count of false imprisonment to run concurrently to his
sentences for robbery and one count to run consecutively, for an aggregate
penalty of twenty years and nine months’ to forty one years and six months’
incarceration.

5 The court found Hudson waived his first claim by raising it for the first time
in his Rule 1925(b) concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(a) opinion, 11/13/18, at 11.

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of sentence questions are not waivable.”     Commonwealth v. Watley, 81

A.3d 108, 117–18 (Pa. Super. 2013) (en banc). Hudson’s claims fall within

this narrow exception to traditional rules of issue preservation.           Id.

Consequently, we will address the merits of his appeal. “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.” Commonwealth

v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014)

      In his first claim, Hudson argues the prosecution was required to provide

him with notice of its intent to seek a “second[-]strike penalty” by amending

“the informations to include allegations of prior convictions that might

potentially trigger a mandatory sentence.”     Brief of Appellant, at 13.    In

support of his argument, Hudson relies on a line of cases where prior criminal

convictions were required to be alleged an information or indictment. See

Brief of Appellant, at 11–15 (citing Commonwealth v. Gibson, 688 A.2d

552, 556 (Pa. Super. 1995); Commonwealth v. Campbell, 417 A.2d 712,

713–14 (Pa. Super. 1980); Commonwealth v. Longo, 410 A.2d 368, 503

(Pa. Super. 1979); Commonwealth v. Moses, 271 A.2d 339, 340 (Pa.

1970)).

      None of the above-mentioned cases involves section 9714.              See

Gibson, supra at 556 (retail theft); Campbell, supra at 713–14 (retail

theft); Longo, supra at 503 (retail theft); Moses, supra at 556 (liquor code

violation). Rather, these cases contemplate statutes where the crime charged


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varies in accordance with the number of prior convictions the accused has

accrued, exposing the repeat offender to a greater maximum penalty, and

thus, concomitantly requiring notice of prior convictions in the charging

document.      See e.g., 18 Pa.C.S.A. § 3929(b) (charging retail theft as

summary offense if defendant has two or fewer prior convictions, but as third-

degree felony if three or more prior convictions); accord Commonwealth v.

Reagan, 502 A.2d 702, 705 (Pa. Super. 1985) (“in [] these cases, the

recidivist statute under which the defendant was sentenced provided for an

increased maximum or an ‘enlarged’ sentence, and it was for this reason that

the Courts concluded that prior convictions had to be alleged in the

information or indictment.”) (emphasis in original).

       Hudson always faced a statutory maximum penalty of twenty years on

each robbery charge, irrespective of how many robberies he had previously

committed, because they were graded as first-degree felonies.6        See 18

Pa.C.S.A. § 1103(1) (stating maximum sentences for felonies).       For retail

theft, the statute at the crux of Hudson’s argument, the maximum penalty

faced by a defendant shifts from 90 days when charged as a summary offense



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6 Under Pennsylvania Law, robbery can be graded as a felony of the first,
second, or third degree. 18 Pa.C.S.A. 3701(b). That determination, however,
occurs independently of one’s prior criminal history, instead hinging on the
severity of the actor’s conduct. See 18 Pa.C.S.A. § 3701(a)(1), (b)(1). The
robberies for which Hudson was convicted—robberies where an individual
“threatens another with or intentionally puts [another] in fear of immediate
serious bodily injury”—are always felonies of the first degree. Id.

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for having two or fewer prior retail theft convictions to seven years when

charged as a third-degree felony with three or more prior convictions. See

id.; see also 18 Pa.C.S.A. § 1105 (stating maximum penalty for summary

offenses). Consequently, Hudson’s proposition—that prior crimes of violence

need to be alleged in the charging document—rests on entirely inapposite case

law. See Reagan, supra at 705.

      To properly consider the timing of notice, we turn to section 9714, which

reads, in relevant part, as follows:

      (a)   Mandatory sentence.--

            (1) Any person who is convicted in any court of this
            Commonwealth of a crime of violence shall, if at the time of
            the commission of the current offense the person had
            previously been convicted of a crime of violence, be
            sentenced to a minimum sentence of at least ten years of
            total confinement, notwithstanding any other provision of
            this title or other statute to the contrary.

                                         ...

      (d) Proof at sentencing.-- Provisions of this section shall not be
      an element of the crime and notice thereof to the 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[.]

18 Pa.C.S.A. § 9714(a), (d).

      By the text of the statute itself, it is clear that reasonable notice comes

not at charging, but “after conviction and before sentencing.” Id. This Court

has found the Commonwealth’s notice of intent under section 9714 reasonable




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when     communicated      as        few   as    three   days     before   sentencing.

Commonwealth v. Taylor, 831 A.2d 661, 667 (Pa. Super. 2003).

       Hudson received notice on July 2, 2018—over one month before he was

sentenced on August 7, 2018. N.T. Sentencing, 8/7/18, at 5. Hudson does

not contest the fact that he received notice prior to sentencing.                 Brief of

Appellant, at 12 (“After the verdict, but prior to sentencing, the prosecution

notified Mr. Hudson of its intent to invoke mandatory second strike penalties

pursuant to 42 Pa.C.S. § 9714(a)(1)[.]”). Such circumstances fall well with

this   Court’s   conception     of    “reasonable   notice”     under   section    9714;

consequently, Hudson’s first claim fails. See Taylor, supra at 667.

       In his second argument, Hudson claims his mandatory sentences are

illegal because his prior first-degree robbery conviction does not qualify as a

crime of violence as defined by section 9714(g).

       Section 9714(g), in relevant part, reads as follows:

       (g) Definition.--As used in this section, the term “crime of
       violence” means . . . robbery as defined in 18 Pa.C.S.[A.] §
       3701(a)(1)(i), (ii) or (iii) . . . or an equivalent crime under the
       laws of this Commonwealth in effect at the time of the commission
       of that offense or an equivalent crime in another jurisdiction.

42 Pa.C.S.A. § 9714(g) (emphasis added).

       To determine whether a crime in another state is equivalent to a

Pennsylvania offense, a court must consider “the elements of the foreign

offense in terms of classification of the conduct proscribed, its definition of the

offense, and the requirements for culpability.” Commonwealth v. Northrip,


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985 A.2d 734, 740 (Pa. 2009) (citation omitted). Additionally, a court shall

consider the “underlying public policy behind the two criminal statutes.”

Commonwealth v. Ward, 856 A.2d 1273, 1277 (Pa. Super. 2004). We note

“the offenses do not identically have to mirror each other[,] but must be

substantially equivalent to invoke operation of 42 Pa.C.S.[A.] § 9714.” Id.

      Under New Jersey law, “[a] person is guilty of robbery if, in the course

of committing a theft, he . . . [t]hreatens another with or purposefully puts

him in fear of immediate bodily injury[.]”          N.J.S.A. § 2C:15-1(a)(2).

Moreover, robbery is graded as a crime of the first degree in New Jersey, “if

in the course of committing the theft, the actor attempted to kill anyone, or

purposefully inflicts or attempts to inflict serious bodily injury, or is armed

with, or uses or threatens the immediate use of a deadly weapon.” N.J.S.A.

§ 2C:15-1(b). Under the relevant Pennsylvania statute, “[a] person is guilty

of robbery, if in the course of committing a theft, he . . . threatens another

with or intentionally puts him in fear of immediate serious bodily injury[.]” 18

Pa.C.S.A. § 3701(a)(ii).     Both crimes carry maximum penalties of twenty

years’ imprisonment. See 18 Pa.C.S.A. § 1103; see also N.J.S.A. § 2C:43-

6.

      This Court recently found New Jersey’s definition of first-degree robbery

serves as a crime of violence under section 9714, equivalent to Pennsylvania’s

definitions   of   robbery   in   subsections   3701(a)(1)(i),   (ii),   and   (iii).

Commonwealth v. Rose, 172 A.3d 1121, 1132–33 (Pa. Super. 2017). This


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decision rested on the fact that the New Jersey and Pennsylvania statutes

“include nearly identical elements and grading for robbery offenses of the first

degree. . . .     Additionally, the statutes are aimed at preventing the same

criminal activity, indicating that the public policy rationale for both statutes is

identical.” Id. (emphasis added).

      The difference between the New Jersey and Pennsylvania statutes, upon

which Hudson focuses, is that the New Jersey statute punishes placing another

in fear of immediate bodily injury, whereas the Pennsylvania statute requires

placing another in fear of immediate serious bodily injury.          See Brief of

Appellant, at 19. Hudson, however, ignores the fact that he was convicted of

first-degree robbery in New Jersey. Commonwealth Exhibit 1, at 1. This is a

conviction he could have received only if he attempted “to kill anyone, or

purposefully inflict[ed] or attempt[ed] to inflict serious bodily injury, or [was]

armed with, or use[d] or threaten[ed] the immediate use of a deadly weapon.”

N.J.S.A. § 2C:15-1(b).        Taken in light of the full context of his previous

conviction, we find no reason to deviate from our decision in Rose. See Rose,

supra at 1132–33; see also Northrip, supra at 740 (“[Section 9714] neither

directs nor requires the court to consider every possible set of circumstances

in   order   to   determine    whether   the   mandatory    sentence    applies.”).

Consequently, Hudson’s second claim fails.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/19




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