J. S02011/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
JERMAINE DUPREE,                        :         No. 1322 EDA 2016
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, March 31, 2016,
              in the Court of Common Pleas of Delaware County
               Criminal Division at No. CP-23-CR-0005104-2015


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 28, 2017

      Jermaine Dupree appeals from the judgment of sentence of March 31,

2016, following his conviction of robbery, criminal conspiracy, and related

charges. We affirm.

      The trial court has aptly summarized the history of this case as

follows:

                   On June 12, 2015, Adam Rothley, “herein
            Mr. Rothley” was walking back to his home in Drexel
            Hill, Delaware County, after [he] was leaving a local
            sports bar. Mr. Rothley took his normal route home
            along the SEPTA trolley tracks.     As Mr. Rothley
            approached the eastbound platform at Creek Road,
            he noticed three men across the way congregated by
            the westbound platform.         When Mr. Rothley
            approached a telephone pole with a street light on it,
            on Creek Road, he heard footsteps coming from
            behind him. Mr. Rothley turned around, and saw
            three males running toward him with shirts wrapped
            around their faces; one of the males pointed a gun
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          toward Mr. Rothley. While one of the men held a
          gun at him, another man rummaged through
          Mr. Rothley’s pockets, taking a cell phone, cell phone
          charger, cigarettes, and a lighter. After the incident,
          Mr. Rothley headed home via Creek Road. When
          Mr. Rothley arrived on his block, Dennison Avenue,
          he immediately called the police from the cellphone
          of his neighbor who was standing outside of her
          home.

                 Within minutes of Mr. Rothley’s phone call,
          Officer Marvil[Footnote 1] arrived at Dennison
          Avenue.[Footnote 2] Shortly thereafter, Mr. Rothley
          accompanied Officer Marvil to the Upper Darby Police
          Station, where he gave a statement regarding the
          incident to Detective George.[Footnote 3]        While
          Detective George was taking the statement,
          Officer Marvil requested that Mr. Rothley accompany
          him to where three suspects were apprehended to
          see if an identification could be made. The officer
          had Mr. Rothley climb into the back of a police issued
          SUV, where Mr. Rothley made the identification by
          way of peering through the front windshield.
          Spotlights were pointed at the suspects during this
          identification. The first individual that Mr. Rothley
          identified     was     the      Appellant,   Jermaine
          Dupree[Footnote       4],    hereinafter   “Appellant.”
          Mr. Rothley’s identification was based on the clothing
          that Appellant was wearing and a shirt that was
          hanging on his shoulder, which Mr. Rothley asserted
          was wrapped around Appellant’s face during the
          robbery. Further, Mr. Rothley identified Appellant as
          the man who pointed the gun in his face.

                [Footnote 1] At the time of trial,
                Officer Marvil had been a police officer
                for eleven years and worked as [a]
                patrolman for Upper Darby Township for
                the [sic] a year and a half.

                [Footnote 2] When he arrived at
                3930 Dennison Avenue, Officer Marvil
                gathered information from Mr. Rothley
                about the robbery; after getting the


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               location and a description of the
               individuals  involved,  Officer  Marvil
               broadcasted the information over police
               radio.

               [Footnote 3] At the time of trial,
               Detective George had been a police
               officer for fifteen years, and had been
               serving as a criminal investigator with
               Upper Darby Township for three years.

               [Footnote 4] It was later discovered that
               Appellant’s real name is Sydney Mondi
               Duopu.     Because Appellant identified
               himself to police and was subsequently
               charged as “Jermaine Dupree,” he will be
               referred   to   as    Jermaine   Dupree,
               consistent with police paperwork and the
               court docket sheets.

                 Officer Thomas Gallo is currently employed as
          a police officer in Clifton Heights Borough and has
          been so employed for the past twelve years. On
          June 12, 2015, Officer Gallo was working in that
          capacity when he received a radio call stating that
          there was a robbery of a pedestrian in the area of
          Bridge and Dennison Streets, which is adjacent to
          Clifton Heights.     At approximately 11:30 p.m.,
          Officer Gallo observed three men fitting the
          description from the radio call, in the area of
          Broadway and Marple Avenues in Clifton Heights.
          Subsequently, Officer Gallo stopped the three men,
          asking them to provide him with their identifications.
          Two of the individuals, Maxim Daniels and
          Robert Kolbrenner, provided Officer Gallo with
          Pennsylvania Identification.[Footnote 5] During this
          encounter, Officer Gallo recovered two cells [sic]
          phones, a cell phone charger and a lighter.
          Additionally, the officer retrieved, what appeared to
          be a black handgun from Mr. Kolbrenner’s
          waistband.[Footnote 6] Later that evening, when
          Mr. Rothley was back at the police station with
          Detective George, he identified[] the cellphone
          charger, a pack of cigarettes and the lighter, as


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           being items that were taken from him in the earlier
           robbery.

                 [Footnote     5]   Maxim     Daniels   and
                 Robert Kolbrenner were arrested and
                 charged as co-defendants with Appellant
                 in this matter. On December 10, 2015,
                 Robert Kolbrenner entered a negotiated
                 guilty plea with the Commonwealth.
                 Maxim Daniels stood trial with Appellant
                 and [was] found guilty on two of the five
                 counts with which he was charged. The
                 focus of this opinion is on the Appellant.

                 [Footnote 6] After further investigation,
                 officers discovered that this was actually
                 a pellet gun, but that as the entire pellet
                 gun was painted black, including the
                 orange tip, that it looked almost identical
                 to a Colt 1911 model handgun.

Trial court opinion, 6/22/16 at 1-3 (citations to the transcript omitted;

punctuation corrected).

                 Appellant was arrested on June 13, 2015. A
           jury trial commenced on February 22, 2016, and
           concluded      on    February    23,   2016.       The
           Commonwealth proceeded on: Count 1: Robbery
           Threatens         Immediate        Serious      Bodily
           Injury[Footnote 7]; Count 2:       Robbery Threatens
           Bodily Injury[Footnote 8]; Count 5: Possession of an
           Instrument of Crime[Footnote 9]; Count 10:
           Criminal     Conspiracy    to     Robbery    Threatens
           Immediate Serious Bodily Injury with Maxim
           Daniels[Footnote 10]; Count 11:               Criminal
           Conspiracy to Robbery Threatens Bodily Injury with
           Maxim Daniels[Footnote 11]. The Commonwealth
           presented      testimony     from    Adam     Rothley,
           Officer Gallo, Officer Marvil and Detective George, all
           of whom testified to the facts as outlined above.
           With the admission of several exhibits and
           stipulations, the Commonwealth rested.



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                    [Footnote 7] 18 [Pa.C.S.A.] § 3701 []
                    A1[ii][.]

                    [Footnote 8] 18 [Pa.C.S.A.] § 3701 []
                    A1[iv][.]

                    [Footnote 9] 18 [Pa.C.S.A.] § 907 [] A[.]

                    [Footnote 10] 18 [Pa.C.S.A.] § 903[.]

                    [Footnote 11] 18 [Pa.C.S.A.] § 903[.]

                    Appellant did not testify, but presented alibi
              testimony from Michael Simbo.             On direct
              examination, Mr. Simbo testified that he had been a
              friend of Appellant for eleven years. Mr. Simbo
              further testified that on June 12, 2015, he had been
              with Appellant at a mutual friend’s home, and that
              they played video games and watched movies until
              approximately 9:50 p.m. when Mr. Simbo needed to
              go home. With the admission of several exhibits,
              counsel for Appellant rested.

                    After deliberations, the jury found Appellant
              guilty on all five counts. On March 31, 2016, this
              Court sentenced Appellant as follows:     Count 1:
              50-100 months in SCI followed by three years[’]
              consecutive probation; Count 2:        merged with
              Count 1 for sentencing purposes; Count 10:
              36-72 months in SCI concurrent to Count 1;
              Count 11:[] merged with Count 10 for sentencing
              purposes; Count 5: one year probation consecutive
              to Count 1.[Footnote 12]

                    [Footnote 12] This Court applied the
                    deadly weapon enhancement [(“DWE”)].

                    On April 28, 2016, Appellant filed a notice of
              Appeal.[1] [On May 4, 2016,] [t]his Court issued a
              [Pa.R.A.P.] 1925(b) request, which counsel filed on
              May 25, 2016.


1
    Appellant did not file post-sentence motions.


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Id. at 3-5 (citations to the transcript omitted).

      Appellant has raised the following issues for this court’s review,

challenging the legality of his sentence:

            [1.]   When the Trial Court pronounced sentence it
                   was required to make a determination on
                   whether RRRI [(Recidivism Risk Reduction
                   Incentive)] was applicable.     The trial court
                   simply stated[,] “you are not RRRI or boot
                   camp eligible.”      This statement does not
                   constitute a determination, therefore the
                   sentence is illegal.

            [2.]   It was error to apply the [DWE] because the
                   minimum component increased without a jury
                   determination, implicating [Alleyne v. United
                   States,     U.S.     , 133 S.Ct. 2151 (2013)].
                   The sentencing guidelines minimum range
                   changed from 32 to 42 months to 48 to
                   60 months.

Appellant’s brief at 7 (citation to the sentencing transcript omitted; italics

deleted).

      In his first issue on appeal, appellant claims that his sentence was

illegal because the trial court failed to adequately consider whether he was

eligible for an RRRI minimum sentence. (Appellant’s brief at 10.) Appellant

complains that the trial court simply presumed his ineligibility without

adequate deliberation or explanation. (Id. at 10-13.)

            A challenge to a court’s failure to impose an RRRI
            sentence implicates the legality of the sentence.
            Commonwealth v. Tobin, 89 A.3d 663, 670
            (Pa.Super. 2014). “It is legal error to fail to impose
            a[n] RRRI minimum on an eligible offender.” Id.
            Thus, as “statutory interpretation implicates a
            question of law, our scope of review is plenary and


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            our   standard    of     review    is de novo.”
            Commonwealth v. Gerald, 47 A.3d 858, 859
            (Pa.Super. 2012) (citation omitted).

Commonwealth v. Finnecy, 135 A.3d 1028, 1033 (Pa.Super. 2016),

appeal denied, 2016 WL 6093951 (Pa. Oct. 19, 2016).

      The RRRI statute, which provides for a reduced RRRI minimum

sentence for certain eligible offenders, states, in relevant part, as follows:

            This chapter seeks to create a program that ensures
            appropriate punishment for persons who commit
            crimes,    encourages     inmate    participation in
            evidence-based programs that reduce the risks of
            future crime and ensures the openness and
            accountability of the criminal justice process while
            ensuring fairness to crime victims.

61 Pa.C.S.A. § 4502.

            At the time of sentencing, the court shall make a
            determination whether the defendant is an eligible
            offender.

61 Pa.C.S.A. § 4505(a).

            “Eligible offender.”    A defendant or inmate
            convicted of a criminal offense who will be
            committed to the custody of the department and
            who    meets  all  of  the   following eligibility
            requirements:

            (1)   Does not demonstrate a history            of
                  present or past violent behavior.

            (2)   Has not been subject to a sentence the
                  calculation  of   which  includes   an
                  enhancement for the use of a deadly
                  weapon as defined under law or the
                  sentencing guidelines promulgated by
                  the    Pennsylvania   Commission    on
                  Sentencing or the attorney for the


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                 Commonwealth has not demonstrated
                 that the defendant has been found guilty
                 of or was convicted of an offense
                 involving a deadly weapon or offense
                 under 18 Pa.C.S. Ch. 61 (relating to
                 firearms and other dangerous articles) or
                 the equivalent offense under the laws of
                 the United States or one of its territories
                 or possessions, another state, the
                 District of Columbia, the Commonwealth
                 of Puerto Rico or a foreign nation.

           (3)   Has not been found guilty of or
                 previously convicted of or adjudicated
                 delinquent for or an attempt or
                 conspiracy to commit a personal injury
                 crime as defined under section 103 of
                 the act of November 24, 1998 (P. L. 882,
                 No. 111),[Footnote 1] known as the
                 Crime Victims Act, except for an offense
                 under 18 Pa.C.S. § 2701 (relating to
                 simple assault) when the offense is a
                 misdemeanor of the third degree, or an
                 equivalent offense under the laws of the
                 United States or one of its territories or
                 possessions, another state, the District of
                 Columbia, the Commonwealth of Puerto
                 Rico or a foreign nation.

                       [Footnote 1] 18 P.S. § 11.103.

61 Pa.C.S.A. § 4503. The legislature chose “to include Section 4503(1) as a

broad, “catchall” provision designed to encompass an array of behavior not

explicitly provided for in Section 4503’s other provisions.” Commonwealth

v. Chester, 101 A.3d 56, 63 (Pa. 2014) (finding that first-degree burglary

constitutes “violent behavior” as contemplated by Section 4503(1)).

     Appellant was clearly not RRRI-eligible, as he had been convicted of

robbery, a personal injury crime as defined by the Crime Victims Act, 18 P.S.


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§ 11.103. In addition, a DWE applied to appellant’s sentence, making him

ineligible under 61 Pa.C.S.A. § 4503(2).       Appellant also had a juvenile

adjudication for terroristic threats, thereby demonstrating a history of past

violent behavior. (Notes of testimony, 3/31/16 at 24.) In short, appellant

was obviously statutorily ineligible for an RRRI minimum sentence, and the

trial court did not err in refusing to impose one without further deliberation.

      Next, appellant argues that application of the DWE was in violation of

Alleyne, holding that any fact that, by law, increases the penalty for a crime

is required to be treated as an element of the offense, submitted to a jury,

rather than a judge, and found beyond a reasonable doubt. We disagree.

      Application of the DWE to a defendant’s sentence affects the guidelines

calculation but does not increase the otherwise applicable statutory

maximum,     nor   does   it    impose   a   mandatory    minimum     sentence.

204 Pa.Code § 303.10. Appellant’s potential exposure was not increased as

a result of the DWE, and the trial court remained free to impose a sentence

outside the guidelines.        The weapons enhancement provision of the

guidelines only affects a defendant’s minimum sentence, not the statutory

maximum. Therefore, Alleyne and Apprendi v. New Jersey, 530 U.S. 466

(2000), are not implicated.      This court explained in Commonwealth v.

Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014) (en banc), appeal denied,

104 A.3d 1 (Pa. 2014), addressing the identical issue:

            While not raised by either party, we find it necessary
            to discuss our finding that Appellant’s truck is a


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           deadly weapon in light of the United States Supreme
           Court’s decisions in Alleyne[] and Apprendi[]. In
           both cases, the Supreme Court determined that
           certain sentencing factors were considered elements
           of the underlying crime, and thus, to comply with the
           dictates of the Sixth Amendment, must be submitted
           to the jury and proven beyond a reasonable doubt
           instead [of] being determined by the sentencing
           judge. However, this inquiry is not relevant to our
           case because of the nature of the DWE.

                    Alleyne and Apprendi dealt with factors
                    that either increased the mandatory
                    minimum sentence or increased the
                    prescribed sentencing range beyond the
                    statutory maximum, respectively. Our
                    case does not involve either situation;
                    instead, we are dealing with a sentencing
                    enhancement.      If the enhancement
                    applies, the sentencing court is required
                    to raise the standard guideline range;
                    however, the court retains the discretion
                    to sentence outside the guideline range.
                    Therefore, neither of the situations
                    addressed in Alleyne and Apprendi are
                    implicated.

Id. at 1270 n.10.

     This claim fails.2

     Judgment of sentence affirmed.




2
  We note that appellant does not argue that the DWE should not have
applied where he used an air-propelled pellet gun rather than a firearm
during the commission of the robbery, only that the triggering facts should
have been found by a jury beyond a reasonable doubt.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




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