J-S06013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STANLEY BOWENS,

                            Appellant                    No. 34 EDA 2014


      Appeal from the Judgment of Sentence Entered November 25, 2013
               In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0003013-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED FEBRUARY 02, 2015

        Appellant, Stanley Bowens, appeals from the judgment of sentence of

an aggregate term of 123 to 246 months’ incarceration, imposed after he

was convicted of robbery, criminal conspiracy, and possessing an instrument

of crime. After careful review, we vacate Appellant’s judgment of sentence

and remand for resentencing.

        The trial court set forth the facts and procedural history of this case as

follows:

              On October 17, 2012, high school student [Z.K.], who was
        walking along East 7th Street near its intersection with Ashland
        Avenue, was approached by three black males. He later testified
        that two of them were wearing gray hooded sweatshirts, and the
        other one was wearing a dark hooded sweatshirt. During the
        encounter, the tallest man, who was wearing a gray hooded
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*
    Former Justice specially assigned to the Superior Court.
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     sweatshirt, pointed a gun at [Z.K.’s] chest while they all told him
     to empty his pockets. After [Z.K.] advised that he had nothing
     in his pockets, one of the three males searched him. Satisfied
     that [Z.K.] had nothing of any value, the three men walked
     away.

            [Z.K.] went home and recounted the incident to his
     grandmother, who telephoned the police.          Officer Michael
     McNamee came to his house and, after taking a statement, set
     off in search of the three suspects. Later that day, another
     officer arrived at [Z.K.’s] house and took him several blocks
     away to a location at which the suspects were being held. [Z.K.]
     identified the suspects as the individuals who attempted to rob
     him. A police officer then took [Z.K.] home.

            Officer McNamee later testified at a suppression hearing
     that after speaking with [Z.K.], he observed three black males in
     the 900 block of Ashland Avenue. Two of them were wearing
     gray hooded sweatshirts, and the third was wearing a black
     hooded sweatshirt.       Their clothing and race matched the
     description given by the victim. As soon as they turned onto
     10th [Street], they began to run away. McNamee was able to
     stop them in the 1300 block of 10th Street. Immediately upon
     approaching them, he asked if any had weapons on them. The
     tall slender male in the gray hooded sweatshirt, later identified
     as [Appellant], … answered in the affirmative, admitting that he
     had an “air soft” gun. Officer McNamee removed the gun from
     [Appellant’s] person. After the victim identified the three men
     as his assailants, all were placed under arrest.

            At trial, Andre Woods, one of the three men, admitted that
     he, [Appellant], and Jonathan Smith attempted to rob the victim.
     According to his account, [Appellant] pulled out the gun and held
     it to the victim’s chest. Jonathan Smith patted down the victim’s
     pockets.

           Jonathan Smith testified that [Appellant] “flashed” a gun at
     the victim while Andre Woods checked the victim’s pockets. He
     was the lookout.

           After hearing all the testimony, the jury found [Appellant]
     guilty of: (Count 1) robbery by threatening [Z.K.] or
     intentionally putting him in fear of immediate serious bodily
     injury (18 Pa.C.S. § 3701(a)(1)(ii)); (Count 4) criminal
     conspiracy to commit robbery (18 Pa.C.S. § 903); and (Count 9)
     possessing an instrument of crime (18 Pa.C.S. § 907(b)). In

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      response to the question, “on or about October 17, 2012 did
      [Appellant] visibly possess a firearm or a replica of a firearm,
      whether or not the firearm was loaded, that placed the victim in
      reasonable fear of death or serious bodily injury during the
      commission of the offense?” The jury responded “yes.”

            On November 25, 2013, this Court sentenced [Appellant]
      to a term of confinement of 60-120 months on Count 1; 60-120
      months on Count 4, consecutive to Count 1; and 3-6 months on
      [C]ount 9, consecutive to [C]ounts 1 and 4.

Trial Court Opinion (TCO), 4/10/14, at 1-3 (citations to the record omitted).

      Appellant filed a timely notice of appeal, as well as a timely Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.        Herein, he

raises two issues for our review:

      1. Did the [trial] [c]ourt … error [sic] by denying Appellant’s
      motion to suppress?

      2. Did the … [trial] [c]ourt error [sic] in imposing a minimum
      mandatory sentence?

Appellant’s Brief at 2.

      In Appellant’s first issue, he challenges the trial court’s denial of his

pretrial motion to suppress.    Our standard of reviewing the denial of a

suppression motion is as follows:

      In reviewing an order from a suppression court, we consider the
      Commonwealth’s evidence, and only so much of the defendant’s
      evidence as remains uncontradicted. We accept the suppression
      court’s factual findings which are supported by the evidence and
      reverse only when the court draws erroneous conclusions from
      those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

      Appellant avers that the court should have granted his motion to

suppress because Officer McNamee did not have reasonable suspicion to


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stop him. Appellant emphasizes that he was not in a high crime area, it was

not late at night, the officer admitted that Appellant was not acting

nervously, and “[t]he only evidence of evasive behavior was that [A]ppellant

proceeded to run when [Officer] McNamee began to follow in his police

vehicle.” Appellant’s Brief at 8-9. Appellant maintains, however, that “flight

alone does not form the basis for reasonable suspicion.”     Id. at 9 (citing

Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999)). Appellant also

argues that the description provided by the victim was very general, and

“nothing in the record … suggest[ed] that [A]ppellant matched the

description of the robbery suspect[,] other than having a grey hooded

sweatshirt[,]” which is not an uncommon or unusual article of clothing to

wear “in the middle of October….” Id. Therefore, Appellant contends that

Officer McNamee did not possess “reasonable articulable suspicion to detain

[him].” Id. at 10.

      We disagree.   At the pretrial suppression hearing, Officer McNamee

testified that he responded to a report of a robbery and spoke with the

victim, Z.K. N.T., 8/2713, at 12. Z.K. provided the following description of

his assailants:

      [Officer McNamee:] They were three black males in their late
      teens.   One was a taller[,] slimmer male wearing a grey
      sweatshirt. The other male was average build wearing a grey
      sweatshirt. And the third [male] was wearing a dark sweatshirt,
      average build.




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Id. at 13.     Officer McNamee testified that according to Z.K., the robbery

occurred a few minutes before the officer arrived. Id. Accordingly, Officer

McNamee “began to check the area for subjects matching the description.”

Id.

       Between five to ten minutes after the robbery occurred, Officer

McNamee “observed three black males” on Ashland Avenue. Id. at 13. The

three men were approximately four blocks away from the location of the

robbery. Id. at 14. “Two of the black males had grey sweatshirts and the

third had a black sweatshirt, which was consistent with the description that

was provided” by the victim. Id. at 13-14. Officer McNamee also testified

that the three men were young, one of the men was wearing a grey

sweatshirt had a “tall, slim build[,]” and the “other two were about average

build, average height.” Id. at 15. The officer testified that when he saw the

three young men, “[t]hey were walking towards [him] as [he] went past

them.”1     Id. at 14. Officer McNamee indicated that the men “were within

feet” of the officer’s vehicle when they passed. Id. at 29. Officer McNamee

stated: “I went to the end of the block to turn around.      As I did that I

observed [the three men] turn on 10th Street and they started to run as they

made the turn onto 10th Street.” Id. The officer testified that because the
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1
  We note that Officer McNamee testified that he was in full uniform and
“was driving an unmarked blue Ford Explorer, which had visible lights on the
front.” Id. at 11. The Officer explained that “[t]here are several lights on
the front of the vehicle that make it very noticeable.” Id.



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three men’s “clothing …, their age, and their race matched” the description

provided by the victim, and because the men ran from him, he believed that

they were the individuals involved in the robbery.              Id. at 15-16.

Accordingly, the officer pursued the three fleeing men, eventually stopping

them on 10th Street. Id. at 19-20. Officer McNamee asked the men “if they

had any weapons on them[,]” at which point Appellant “stated that he had

an air[]soft gun … in the pocket of his hooded sweatshirt.” Id. at 20. The

officer then removed the gun from Appellant’s person. Id. After the victim

identified the three men as the individuals who robbed him, Appellant and

his two cohorts were placed under arrest. Id. at 21.

      Based on Officer McNamee’s testimony, we ascertain nothing unlawful

about the stop of Appellant and his cohorts.      It is well-settled that police

officers may “detain individuals for a brief investigation when they possess

reasonable suspicion that criminal activity is afoot.”     Commonwealth v.

Brown, 996 A.2d 473, 476-477 (Pa. 2010) (citations omitted).

      Reasonable suspicion is a less stringent standard than probable
      cause necessary to effectuate a warrantless arrest, and depends
      on the information possessed by police and its degree of
      reliability in the totality of the circumstances. In order to justify
      the seizure, a police officer must be able to point to “specific and
      articulable facts” leading him to suspect criminal activity is afoot.
      In assessing the totality of the circumstances, courts must also
      afford due weight to the specific, reasonable inferences drawn
      from the facts in light of the officer's experience and
      acknowledge that innocent facts, when considered collectively,
      may permit the investigative detention.

Id. at 477 (internal citations omitted).



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        Here, based on Officer McNamee’s testimony, we conclude that he did

possess reasonable suspicion to pursue and detain Appellant and his cohorts.

Initially, while Appellant is correct that nothing in the record suggests he

was stopped in a high crime area late at night, and that flight alone does not

provide     reasonable     suspicion,     he   completely   disregards   the   other

circumstances – in addition to his flight - which supported Officer McNamee’s

belief that Appellant and his cohorts were the individuals who robbed the

victim.    Namely, Appellant and his companions were spotted four blocks

away from the location of the robbery approximately 10 minutes after the

crime occurred.      The three young men’s clothing, race, age, and physical

builds matched the description provided by the victim. These facts, coupled

with Appellant’s flight upon seeing Officer McNamee, made it reasonable for

the officer to suspect that Appellant and his companions were the individuals

who robbed the victim. Therefore, the trial court did not err in concluding

that the stop of Appellant was lawful.

        Appellant next avers that his mandatory term of five to ten years’

incarceration, imposed pursuant to 42 Pa.C.S. § 9712,2 is illegal under

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2
    That mandatory sentencing statute states, in pertinent part:

         (a) Mandatory sentence.--Except as provided under section
        9716 (relating to two or more mandatory minimum sentences
        applicable), any person who is convicted in any court of this
        Commonwealth of a crime of violence as defined in section
        9714(g) (relating to sentences for second and subsequent
        offenses), shall, if the person visibly possessed a firearm or a
(Footnote Continued Next Page)


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Alleyne v. U.S., 133 S.Ct. 2151 (2013), Commonwealth v. Newman, 99

A.3d 86 (Pa. Super. 2014) (en banc), and Commonwealth v. Valentine,

101 A.3d 801 (Pa. Super. 2014).

      We agree.        In Alleyne, the United States Supreme Court held that

“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’

that must be submitted to the jury and found beyond a reasonable doubt.”

Alleyne, 133 S.Ct. at 2155. Based on Alleyne, an en banc panel of this

Court declared in Newman that 42 Pa.C.S. § 9712.1 is unconstitutional, as

that statute “permits the trial court, as opposed to the jury, to increase a


                       _______________________
(Footnote Continued)

      replica of a firearm, whether or not the firearm or replica was
      loaded or functional, that placed the victim in reasonable fear of
      death or serious bodily injury, during the commission of the
      offense, be sentenced to a minimum sentence of at least five
      years of total confinement notwithstanding any other provision
      of this title or other statute to the contrary. Such persons shall
      not be eligible for parole, probation, work release or furlough.

      (b) 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 court shall consider any evidence presented at trial and shall
      afford the Commonwealth and the defendant an opportunity to
      present any necessary additional evidence and shall determine,
      by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9712(a), (b).




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defendant’s minimum sentence based upon a preponderance of the evidence

that the defendant was dealing drugs and possessed a firearm, or that a

firearm was in close proximity to the drugs.” Newman, 99 A.3d at 98. The

Newman Court also held that section 9712.1(c), which mandates that the

sentencing     court    determine      the     applicability    of   the   statute    by    a

‘preponderance of the evidence’ standard, is not severable from the

remainder      of    section     9712.1,       thus    making        the   entire    statute

unconstitutional. Id. at 101.

       Recently,    a   panel    of   this     Court   in      Valentine    assessed       the

constitutionality of the same mandatory minimum sentencing statute under

which Appellant was sentenced in the present case, 42 Pa.C.S. § 9712.

Ultimately, we held that under Alleyne and Newman, section 9712(b)

(which mirrors the language of section 9712.1(c)) is invalid and cannot be

severed from the remainder of section 9712. Valentine, 101 A.3d at 809,

812.   Accordingly, we declared that section 9712 is “unconstitutional as a

whole.” Id. at 812.3

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3
  The Valentine Court also rejected the type of procedure utilized by the
trial court in the present case in an attempt to satisfy the dictates of
Alleyne. In Valentine, as in this case, the trial court “permitted the jury,
on the verdict slip, to determine beyond a reasonable doubt whether
[Valentine] possessed a firearm that placed the victim in fear of immediate
serious bodily injury in the course of committing a [violent offense] for
purposes of the mandatory minimum sentencing provisions of 42 Pa.C.S. §
9712(a)….” Valentine, 101 A.3d at 811. We held that in presenting this
question to the jury, “the trial court performed an impermissible legislative
(Footnote Continued Next Page)


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      In light of Alleyne, Newman, and Valentine, it is clear that 42

Pa.C.S. § 9712 is unconstitutional, and Appellant’s mandatory sentence

under that statute is illegal. Therefore, we vacate Appellant’s judgment of

sentence and remand for resentencing.

      Judgment of sentence vacated.                 Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




                       _______________________
(Footnote Continued)

function by creating a new procedure in an effort to impose the mandatory
minimum sentences in compliance with Alleyne.” Id.




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