J-S75036-16
                                 2016 PA Super 298
COMMONWEALTH OF PENNSYLVANIA                  :      IN THE SUPERIOR COURT OF
                                              :            PENNSYLVANIA
              v.                              :
                                              :
PAUL FURNESS,                                 :
                                              :
                    Appellant                 :           No. 2778 EDA 2015

             Appeal from the Judgment of Sentence August 5, 2015
              in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No(s): CP-51-CR-0009880-2012

BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                           FILED DECEMBER 22, 2016

        Paul Furness (“Furness”) appeals from the judgment of sentence

imposed following his convictions for criminal trespass, attempted burglary,

and possessing instruments of crime.1        We affirm in part, reverse in part,

and remand for resentencing.

        The trial court set forth the relevant facts as follows:

        On July 20, 2012, at approximately 10:00 a.m., Christopher
        Babiarz [(“Babiarz”)] saw [Furness] attempt to enter his home,
        located at 3170 Richmond Street, [Philadelphia,] through the
        window. On that morning, [Babiarz] heard “some rustling and
        banging at the back door” and observed a silhouette walk past
        the window with “something like a screwdriver in his hands,”
        attempting to pry open the windows. [Babiarz] opened up the
        blinds and positively saw [Furness].        [Furness] looked at
        [Babiarz] and proceeded to run away. [Babiarz] opened the
        door[] and saw a second person, whom he could not identify,
        run through the back gate of his yard. He described the second
        person as “about his height … with dirty blond or brown hair,
        wearing a green shirt,” as “5’10[”], 150 pounds, approximately
        [age] 25 to 30 … wearing jeans.” Babiarz testified that he knew
        [Furness] from the neighborhood, even though they were not
        part of the same circle due to age differences.

1
    18 Pa.C.S.A. §§ 3503(a)(1)(ii), 901, 907(a).
J-S75036-16



     [Babiarz] called the police and Officer [Edward] Berrthcsi
     [(“Officer Berrthcsi”)] arrived. They observed tool marks on the
     window, with the bottom pane indented and the capping bent.
     [Babiarz] testified that there were no damages prior to this
     incident. In addition, [Babiarz] recovered a bag of tools outside
     of the back door that did not belong to him, which included a
     screwdriver, multi-tool, paint chisel, and a vise-grip. Officer
     Berrthcsi testified that on that day, he received a radio call for a
     burglary at 3170 Richmond Street.          [Babiarz] gave him a
     description of both males and positively recognized one of the
     males as [Furness]. Officer Berrthcsi observed pry marks on
     [Babiarz’s] rear door and on the side window at the rear
     property. He also saw tools on the porch that included a
     screwdriver, vise-grip, and other tools.

     The Commonwealth next called Detective [John] Ellis
     [(“Detective Ellis”)], Detective [James] McCullough [(“Detective
     McCullough”)], and Detective Randall Farward [(“Detective
     Farward”)] to testify.     Detective Ellis testified that he and
     Detective McCullough went out to 3170 Richmond Street on that
     day and met with [Babiarz]. He recovered one green nylon bag
     containing silver colored vise-grips, a Stanley screwdriver with
     [a] red and yellow plastic grip, a Hyde scraper with a black
     handle, and a Great Neck ratchet driver with [a] red and black
     handle, which were all placed on property receipts. Detective
     McCullough testified that he arrived with Detective Ellis on that
     day, took photos of the scene, and recovered tools that [Babiarz]
     turned over. Detective Farward testified that [Babiarz] told him
     he knew who attempted to burglarize his home and positively
     identified [Furness] by photo.

     The defense [] called Carolyn Furness [(“Carolyn”)], Cheryl
     Neumann [(“Cheryl”)], and Carol Furness [(“Carol”)] as their
     alibi witnesses. [Carolyn, Furness’s] sister, testified that on that
     day, [Furness], her friend Cheryl, and herself began setting up
     for their mother’s retirement party at approximately 8:30 a.m.
     [Cheryl] testified that she went over to [Furness’s] house at
     approximately 9:00 a.m. to help [Furness] and [Carolyn]
     prepare for the retirement party. [Cheryl] also testified that
     [Furness] was there the entire time. Lastly, [Carol, Furness’s]
     mother, testified that she retired on that day, as a court order
     process clerk for the City of Philadelphia[,] after 26 years of



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J-S75036-16


      employment. She came home around 11:00 a.m. and saw
      [Furness] present at the party.

Trial Court Opinion, 1/11/16, at 2-4 (citations and brackets omitted).

      Following a jury trial, Furness was convicted of the above-mentioned

crimes.   The trial court deferred sentencing and ordered a pre-sentence

investigation report (“PSI”). On July 6, 2015, after reviewing the PSI, the

trial court sentenced Furness to a prison term of 12½ to 25 years for

attempted burglary and a concurrent term of 5 to 10 years for criminal

trespass, followed by 5 years of probation for possessing instruments of

crime.

      Furness filed a post-sentence Motion, which the trial court granted in

part and denied in part. The trial court re-sentenced Furness to 10 to 20

years in prison for his attempted burglary conviction, a consecutive 2½ to 5

years in prison for his criminal trespass conviction, and a consecutive 5

years of probation for his possessing instruments of crime conviction.

Furness subsequently filed a timely Notice of Appeal and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.

      On appeal, Furness raises the following questions for our review:

      I. Was the evidence presented at trial sufficient as a matter of
      law to support the conviction for criminal trespass as set forth in
      18 Pa.C.S.A. § 3503(a)(1), where the evidence of record did not
      establish beyond a reasonable doubt that [Furness] broke into
      any building or structure[,] as the only evidence at trial indicated
      that the gate to the yard [Furness] was alleged to have entered
      was possibly left unlocked by a tenant at the property, and the
      only evidence at trial indicated that [Furness] fled before
      entering any building or structure, and the yard [Furness] was


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      alleged to have entered is not a building or structure or
      separately secured or occupied portion thereof as set forth in
      [Section] 3503?

      II. Is the sentence imposed in this matter illegal due to the fact
      that the sentences for burglary and criminal trespass are
      required to merge for sentencing purposes?

      III. With respect to the charges of attempted burglary, criminal
      trespass, and possessing an instrument of crime, was the verdict
      [] against the weight of the evidence and so contrary to the
      evidence that it shocks one’s sense of justice in light of the
      circumstances as set forth in the evidence presented at trial?

      IV. Should the mandatory minimum sentence imposed by the
      trial court under 42 Pa.C.S.A. § 9714 be vacated, and this
      matter remanded for a new sentencing hearing, due to the fact
      that the jury did not expressly find beyond a reasonable doubt
      all facts necessary to require imposition of a mandatory
      minimum sentence under that statute?

      V. Should the mandatory minimum sentence imposed by the trial
      court under 42 Pa.C.S.A. § 9714 be vacated, and this matter
      remanded for a new sentencing hearing, due to the fact that
      [Section] 9714 is unconstitutional as currently drafted?

Brief for Appellant at 7-8.

      In his first claim, Furness argues that there is insufficient evidence to

support his conviction for criminal trespass because the Commonwealth

failed to prove that Furness had entered a building or occupied structure.

Id. at 20-21. Instead, Furness points to case law holding that a fenced-in

backyard of a residential home is not a “building or occupied structure” for

the purpose of Section 3503(a)(1)(ii), and argues that such case law applies

to this case because Babiarz saw Furness in the backyard, which he shares

as a common area with an adjacent apartment building.           Id. at 21-23.



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Additionally, Furness asserts that the attempt to pry open Babiarz’s window

left damage only to the exterior of the residence, and therefore, neither

Furness nor his tools had entered the residence. Id. at 24.

      The   Commonwealth      argues,   to   the   contrary,   that   the   entry

requirement had been satisfied because Furness “stuck a screwdriver into a

gap between the windowpanes” in an attempt to pry open the lock, and that

it is therefore “reasonable to infer that some part of the screwdriver came

into the house when he did so.” Commonwealth’s Brief at 7.

      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 prior 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
      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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      A person commits the offense of criminal trespass “if, knowing that he

is not licensed or privileged to do so, he breaks into any building or occupied


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J-S75036-16


structure or separately secured or occupied portion thereof.” 18 Pa.C.S.A.

§ 3503(a)(1)(ii). A person “break[s] into” a building or occupied structure if

he “gain[s] entry by force, breaking, intimidation, unauthorized opening of

locks, or through an opening not designed for human access.”              Id.

§ 3503(a)(3). Additionally, “the entry requirement of our criminal trespass

statute is satisfied by insertion of an instrument which is held or

manipulated by the defendant, or so closely associated with his body that it

essentially becomes an extension thereof.” Commonwealth v. Giddings,

686 A.2d 6, 12 (Pa. Super. 1996) (overruled on other grounds by

Commonwealth v. Clark, 756 A.2d 1128, 1131 (Pa. Super. 2000), appeal

denied, 764 A.2d 1064 (Pa. 2000)).

      In Giddings, this Court concluded that the entry requirement of the

criminal trespass statute was satisfied where the defendant used a

screwdriver to chop a small hole through a door, even though the defendant

himself never entered the premises. Giddings, 686 A.2d at 12. This Court,

guided by several cases from other jurisdictions, held that the entry

requirement can be satisfied by the use of an instrument or tool. Id. at 12.

      Although the Giddings decision instructs that the entry requirement

may be satisfied where an instrument “breaches” the exterior of a building,

this Court was not directly faced with the issue of whether an instrument or

tool must protrude entirely through the outer boundary of a building or

occupied structure in order to constitute an entry for the purpose of Section



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J-S75036-16


3503(a). See id. at 11. However, in each of the cases cited in Giddings,

there was evidence that the instrument or tool used by the defendant had

crossed into the interior of the premises.   See id. at 9-11 (wherein this

Court reviewed, and cited with approval, several cases from other

jurisdictions in which the entry requirement had been satisfied by the use of

an instrument or tool).

      Based upon our review of Giddings and the cases cited therein, we

conclude that, in order to satisfy the entry requirement of Section 3503(a),

the evidence must demonstrate that an instrument or tool used by a

defendant, or any portion thereof, protruded entirely through the outer

boundary of the building or occupied structure and into the interior of the

premises.

      Here, Babiarz testified that he saw Furness walk by the window with a

screwdriver or similar tool in his hand, and that Furness “stuck [the tool]

wherever the top and the bottom window actually meet.” N.T., 4/1/15, at

39.   Babiarz also testified that the window lock is between the top and

bottom panes, and that Furness attempted to pry open the lock using the

tool. See id. at 39-40.

      Additionally, the Commonwealth admitted into evidence a picture of

the window, which showed damage where the top and bottom panes meet.

Exhibit C-12E; see also N.T., 4/1/15, at 47 (wherein Exhibit C-12E was

marked for identification and admitted into evidence).    The picture shows



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J-S75036-16


some damage and scratching on the outside of the wooden window pane;

however, it appears clear that the damage was limited only to the surface of

the outside of the pane.    See Exhibit C-12E.    At trial, Babiarz was shown

Exhibit C-12E, and he agreed with the characterization that the bottom pane

was “indented.” See N.T., 4/1/15, at 47.

      Officer Berrthsci also testified that he observed “pry marks” on

Babiarz’s window. See N.T., 4/1/15, at 97, 107.

      Upon review, we conclude that the evidence of record, viewed in the

light most favorable to the Commonwealth as the verdict winner, was

insufficient to sustain Furness’s conviction for criminal trespass.         The

evidence presented at trial demonstrated only that the outer portion of the

window pane was “indented,” and that there was no hole in the pane such

that a tool could protrude through the outer boundary. Absent evidence to

suggest that Furness, or any portion of a tool used to pry open the lock,

protruded through the window pane and entered into the interior of the

premises, the jury could not reasonably infer that Furness had gained entry

into Babiarz’s home. Cf. Giddings, 686 A.2d at 8 (stating that “since the

hole went all the way through [the] door, it is clear that, at the very least,

the screwdriver … entered the residence.”).      Therefore, finding insufficient

evidence to establish the entry requirement, we reverse Furness’s conviction

for criminal trespass.   Because our disposition may affect the trial court’s

overall sentencing scheme, we vacate Furness’s remaining sentences and



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remand for resentencing. See Commonwealth v. Goldhammer, 517 A.2d

1280, 1283     (Pa.   1986) (discussing the     propriety   of remanding   for

resentencing where an appellant successfully challenges one of several

convictions on appeal); see also Commonwealth v. Rivera, 95 A.3d 913,

917-18 (Pa. Super. 2014) (remanding for resentencing where “[this Court’s]

decision might affect the trial court’s sentencing scheme.”).

      In his second claim, Furness asserts that the trial court imposed an

illegal sentence because the crimes of burglary and criminal trespass must

merge for sentencing purposes, in accordance with the Pennsylvania

Supreme Court’s decision in Commonwealth v. Jones, 912 A.2d 815 (Pa.

2006) (plurality).2 Brief for Appellant at 24-26. Furness requests that we

vacate his sentence for criminal trespass. Id. at 26. However, because we

have reversed Furness’s conviction for criminal trespass, we need not

address this claim.

      In his third claim, Furness argues that his convictions for attempted

burglary, criminal trespass and possessing an instrument of crime are

against the weight of the evidence. Brief for Appellant at 26. Regarding the

criminal trespass conviction, Furness incorporates the argument set forth in




2
  In Jones, a plurality of the Pennsylvania Supreme Court held that the
crimes of burglary and criminal trespass merge for sentencing purposes,
where the same set of facts was sufficient to convict the appellant of both
crimes. Jones, 912 A.2d at 824.


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J-S75036-16


his first claim. Id. at 27.3 As to the attempted burglary and possessing an

instrument of crime convictions, Furness claims that “there is no forensic

evidence whatsoever linking Furness to Babiarz’s home, yard, or the tools

recovered there.”   Id.   Furness argues that without forensic evidence, the

jury was only able to consider the testimony of the witnesses, only one of

whom provided a link between Furness and the crimes.             Id.    Furness

challenges the accuracy of Babiarz’s identification of Furness, asserting that

Babiarz was “emotional” on the day of the incident, and he had not seen

Furness for 20 years prior to the incident. Id. at 28. Additionally, Furness

asserts that Babiarz’s testimony contradicts the testimony of three other

witnesses who testified that they were with Furness at 11:00 a.m. that day.

Id. at 29-30.   Furness also cites to Carolyn’s testimony that, prior to this

incident, Babiarz came to Carol’s home, asked for Furness, and referenced a

debt that Furness owed to him. Id. at 30-31. At trial, Babiarz denied this

interaction with Carolyn. Id. at 31.

      As this Court has recognized,

      [a]ppellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge
      has had the opportunity to hear and see the evidence presented,
      an appellate court will give the gravest consideration to the
      findings and reasons advanced by the trial judge when reviewing
      a trial court’s determination that the verdict is against the weight
      of the evidence. One of the least assailable reasons for granting


3
  We note that we need not address the weight of the evidence in regard to
Furness’s criminal trespass conviction, as we have reversed this conviction.


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      or denying a new trial is the lower court’s conviction that the
      verdict was or was not against the weight of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014)

(citations omitted).   “On appeal, this Court cannot substitute its judgment

for that of the jury on issues of credibility, or that of the trial judge

respecting weight.”     Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa.

2011); see also Commonwealth v. Hall, 830 A.2d 537, 542 (Pa. 2003)

(stating that “in instances where there is conflicting testimony, it is for the

jury to determine the weight to be given the testimony. The credibility of a

witness is a question for the fact-finder.” (citation omitted)).

      Here, Furness asks us to substitute our judgment for that of the jury,

and to reassess the credibility of several witnesses, as well as Babiarz’s

identification of Furness.    The trial court determined that the jury found

Babiarz’s testimony credible, despite conflicting evidence; the officers’ and

detectives’ testimony corroborated Babiarz’s story; and the alibi presented

at trial was less credible than Babiarz’s identification.          See Trial Court

Opinion, 1/11/16, at 12. We discern no abuse of discretion by the trial court

in denying Furness’s weight claim. From the verdict, it is apparent that the

jury found the testimony of Babiarz to be more credible than the testimony

of the alibi witnesses, and we may not reconsider the credibility of conflicting

testimony on appeal.         See Sanchez, supra; see also Hall, supra.

Because the evidence supports the jury’s verdict, and we discern no abuse

of discretion by the trial court, this claim is without merit.


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     In his final claim, Furness argues that the mandatory minimum

sentence imposed for his attempted burglary conviction, pursuant to 42

Pa.C.S.A. § 9714, is illegal, and he raises two sub-issues in support of his

argument.4    Brief for Appellant at 31.    First, citing the United States

Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151

(2013),5 Furness claims that his sentence is illegal because the jury did not

find beyond a reasonable doubt all facts necessary to require imposition of a

mandatory minimum sentence. Id. at 32-34. Furness argues that the fact

triggering the imposition of a mandatory minimum sentence, i.e., a prior

conviction for a crime of violence, had not been found by the jury beyond a

reasonable doubt.    Id. at 35.     Additionally, Furness noted that in the

Alleyne decision, United States Supreme Court “declined to address

whether the fact triggering a mandatory minimum sentence is to be

considered an element of the crime (and thus submitted to the jury and

proven beyond a reasonable doubt with prior notice to a defendant) if that

fact is a prior conviction.” Id.; see also Alleyne, 133 S. Ct. at 2151 n.1.

Second, Furness argues that even if Section 9714 is constitutional under the


4
  In the argument section of his brief, Furness’s fourth and fifth claims are
raised as sub-issues to a general claim that the mandatory minimum
sentence imposed for his attempted burglary conviction. Therefore, we will
consider these claims together.
5
  In Alleyne, the United States Supreme Court held that “any fact that
increases the mandatory minimum is an ‘element’ that must be submitted to
the jury” and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at
2155.


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Alleyne holding, there is a “good faith argument for change in existing law

based upon the reasoning and rule set forth in Alleyne and the shaky

underpinnings of Almendarez-Torres v. United States[, 523 U.S. 224

(1998)6].”      Brief   for   Appellant   at   36-37.   Furness   contends   that

Almendarez-Torres cannot alone support the constitutionality of Section

9714 because the Almendarez-Torres decision relied on prior decisions

that either do not support the holding, or have subsequently been overruled.

Id. at 38-39.

      Section 9714 of the Sentencing Code provides, in relevant part, as

follows:

§ 9714. Sentences for second and subsequent offenses

      (a) Mandatory sentence.—

             (1) Any person who is convicted in any court of this
             Commonwealth of a crime of violence[7] 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. Upon a second conviction for a crime
             of violence, the court shall give the person oral and
             written notice of the penalties under this section for
             a third conviction for a crime of violence. …

6
  In considering maximum permissive sentences, the United States Supreme
Court in Almendarez-Torres held that prior convictions are sentencing
factors rather than elements of an offense. Almendarez-Torres, 523 U.S.
at 243-44.
7
  For the purposes of this section, “crime of violence” includes “burglary as
defined in 18 Pa.C.S.[A.] § 3502(a)(1),” as well as criminal attempt to
commit any of the named offenses. 42 Pa.C.S.A. § 9714(g).


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                                      ***

      (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. The
      applicability of this section shall be determined at sentencing.
      The sentencing court, prior to imposing sentence on an offender
      under subsection (a), shall have a complete record of the
      previous convictions of the offender, copies of which shall be
      furnished to the offender. If the offender or the attorney for the
      Commonwealth contests the accuracy of the record, the court
      shall schedule a hearing and direct the offender and the attorney
      for the Commonwealth to submit evidence regarding the
      previous convictions of the offender.        The court shall then
      determine, by a preponderance of the evidence, the previous
      convictions of the offender and, if this section is applicable, shall
      impose sentence in accordance with this section. …

42 Pa.C.S.A. § 9714(a), (d) (footnote and emphasis added).

      Furness’s    claim   challenges      the   legality   of   his   sentence.

Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014).

“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)

(citations, brackets and ellipses omitted).

      Initially, in Alleyne, the United States Supreme Court recognized the

narrow exception set forth in Almendarez-Torres, regarding the fact of a

prior conviction. Alleyne, 133 S. Ct. at 2151 n.1 (declining to revisit the

issue, as it had not been raised by the parties). Because the United States

Supreme Court did not overturn the Almendarez-Torres exception, the



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Alleyne rule includes the prior conviction exception.     See id.; see also

Almendarez-Torres, 523 U.S. at 243-44.

      This Court specifically considered the constitutionality of Section 9714

in Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015). In Reid, this

Court acknowledged that the Alleyne decision retained the exception for

prior convictions. Reid, 117 A.3d at 784. The Reid Court held that Section

9714 is not unconstitutional because it increases mandatory minimum

sentences based on prior convictions. Reid, 117 A.3d at 785.8

      Here, Furness was given the required notice of the Commonwealth’s

intent to seek the mandatory minimum sentence pursuant to Section 9714.

See 42 Pa.C.S.A. § 9714(d).      The trial court, with the benefit of a PSI,

determined that Furness had a prior conviction for burglary. See Trial Court

Opinion, 1/11/16, at 10 n.1. Additionally, Furness does not dispute his prior

conviction for burglary.   See 42 Pa.C.S.A. § 9714(d) (explaining that the

accuracy of the prior record, if contested, is subject to a preponderance of

the evidence standard).    Based upon the foregoing, we conclude that the

trial court did not impose an illegal sentence, and Furness is not entitled to

relief on this claim.   See Bragg, 133 A.3d at 332-33 (upholding Reid’s



8
  We note that the Pennsylvania Supreme Court has granted allowance of
appeal to consider the constitutionality of mandatory minimum sentences
imposed pursuant to Section 9714. See Commonwealth v. Bragg, 133
A.3d 328 (Pa. Super. 2016), appeal granted, 143 A.3d 890 (Pa. 2016).
However, as our Supreme Court has not yet issued a decision on this issue,
Reid remains controlling.


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determination that a mandatory minimum sentence imposed pursuant to

Section 9714 is not unconstitutional under Alleyne).

     Judgment of sentence affirmed in part and reversed in part.   Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2016




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