J-S56020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARKEYSS V. GILBERT

                            Appellant                No. 1874 MDA 2014


             Appeal from the Judgment of Sentence April 29, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002683-2013


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                        FILED OCTOBER 15, 2015

        Appellant Markeyss V. Gilbert appeals from the April 29, 2014

judgment of sentence entered in the York County Court of Common Pleas

following his convictions for robbery, conspiracy to commit robbery,

receiving stolen property, and firearms not to be carried without a license. 1

We affirm Appellant’s convictions, but vacate his judgment of sentence and

remand for resentencing.

        On October 27, 2011, Sergeant Gregg Anderson of the Northern York

County Regional Police Department responded to a report of an armed

robbery at the Fulton Bank at 3183 Susquehanna Trail in York County. N.T.,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3701(a)(1)(ii), 903, 3925(a), and 6106(a)(2), respectively.
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3/11/2014, at 222.      Upon investigation, Sergeant Anderson learned the

vehicle used by the suspects to flee was a gold Dodge Stratus with a

Maryland registration tag of 5AK6030. Id. at 224.    Sergeant Anderson then

learned that the suspect vehicle was towed. Id. at 225. The car’s owner,

Erik Clark, was placed into custody when he attempted to recover it. Id. at

229-31. The police found $1,291.00 in cash on Clark’s person. Id. at 230-

231, 235.     Clark informed Sergeant Anderson that he was at his friend’s

apartment at 37 North West Street, 2nd Floor, Apt. 2 at the time of the

robbery. Id. at 232-233.

     After obtaining a search warrant for the vehicle, officers found an

orange fluorescent bag, identical to the bag that appeared in surveillance

video from the robbery. N.T., 3/11/14, pp. 242. When the police arrived at

37 North West Street, 2nd Floor, Apt. 2, they discovered the unit was

vacant.   Id. at 274.    They subsequently learned Clark’s friend lived in

apartment 3. Id. at 276 -277.    Sergeant Anderson was permitted inside of

the apartment, where he noticed articles of clothing that were identical to

the clothing worn by the individuals who robbed the bank. Id. at 276-279.

The police were able to identify Demetrius Griffin based on the clothing

found in the apartment and surveillance footage depicting a tattoo on a

robber’s neck. Id. at 284-85. The police questioned Griffin, who admitted

to participating in the robbery. Id. at 292-93; N.T.T. 3/13/14, p. 362.




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       Appellant’s co-conspirator, Griffin, testified at trial.2    Griffin testified

that Appellant was the initiator of the robbery scheme and participated in

the robbery with Griffin and two others.3 N.T., 3/13/2014, at 362. Griffin

explained Appellant was the guard/lookout during the robbery and that

Appellant had a gun.        Id. at 366, 68.      Griffin identified Appellant as the

robber who pointed his gun at a woman on the surveillance footage. Id. at

374.   He stated the robbers each received around $1,200.00 in cash and

that Appellant took a bag containing clothes, a gun, and the money to

Appellant’s girlfriend, Melissa Cousler’s, apartment. Id. at 368, 381.

       A bank teller testified that the robbers took the money and then left.

N.T., 3/11/2014, at 159.          Another bank employee testified that a robber

remained in the lobby and pointed a gun at the bank manager during the

robbery. Id. at 168. Further, the bank manager confirmed that one of the

robbers pointed a gun at her, and testified the robber who pointed the gun

at her did not approach the teller line. Id. at 173-74. Ms. Cousler testified

that Appellant arrived at her home with a clear blue plastic bag, which

contained money and a gun. Id. at 186, 189.



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2
  Griffin “hope[d] for some consideration in exchange for [his] testimony.”
N.T., 3/13/2014, at 361. At the time of trial he was serving a thirty-year
sentence in Maryland. Id. at 360-61.
3
 Griffin, Appellant, and two others attempted to rob the bank the previous
day, but were unsuccessful. N.T., 3/13/2014, at 363.



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       Detective William Haller testified that, when shown the surveillance

footage, Appellant identified his clothing on one of the robbers and noted it

“was strange” that one of the robbers was wearing his clothing.                N.T.,

3/13/2014, at 413-14.

       On March 13, 2014, a jury convicted Appellant of robbery, criminal

conspiracy to commit robbery, and receiving stolen property. The trial court

found Appellant guilty of firearms not to be carried without a license.          On

April 29, 2014, the trial court sentenced Appellant to an aggregate sentence

of 5 to 10 years’ imprisonment.4               On August 22, 2014, Appellant filed a

motion for nunc pro tunc post-sentence relief.5 On October 17, 2014, the

trial court denied the post-sentence motion, but reinstated Appellant’s

appeal rights.     On November 5, 2014, Appellant filed a timely notice of

appeal. Both Appellant and the trial court complied with Pennsylvania Rule

of Appellate Procedure 1925.

       Appellant raises the following issues on appeal:


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4
   The trial court sentenced Appellant to 5 to 10 years’ imprisonment for the
robbery conviction, 5 to 10 years’ imprisonment for the conspiracy to
commit robbery conviction, 1 to 2 years’ imprisonment for the receiving
stolen property conviction, and 6 to 12 months’ imprisonment for the
firearms not to be carried without a license conviction. All sentences were to
be served concurrently.
5
   Appellant’s trial counsel was permitted to withdraw, and a delay occurred
in the appointment of a non-conflicted attorney, which resulted in the late
filing of a post-sentence motion. N.T., 10/17/2014, at 2-3.



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         I. Was it error for the trial court to conclude that the jury
         had evidence sufficient beyond a reasonable doubt to
         prove the Appellant guilty of the offenses of [c]riminal
         [c]onspiracy to [c]ommit [r]obbery, [r]obbery, and
         [r]eceiving [s]tolen [p]roperty?

         II. Was it error for the trial court to find the Appellant
         guilty of the offense of [f]irearms [n]ot to be [c]arried
         without a [l]icense?

Appellant’s Brief at 4.

      In his combined issues, Appellant challenges the sufficiency of the

evidence for his convictions.     He claims that the Commonwealth failed to

present enough evidence for the jury and the court to find him guilty beyond

a reasonable doubt and concludes he is entitled to a new trial. We disagree.

      We apply the following standard when reviewing sufficiency of the

evidence claims: “[W]hether 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.”        Commonwealth v. Lehman, 820 A.2d 766, 772

(Pa.Super.2003),      affirmed,    870   A.2d    818    (Pa.2005)        (quoting

Commonwealth v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we

apply this standard, “we may not weigh the evidence and substitute our

judgment for the fact-finder.” Id.

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”     Lehman, 820 A.2d at

772. Moreover, “[a]ny doubts regarding a defendant’s guilt may be resolved

by the fact-finder unless the evidence is so weak and inconclusive that as a


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matter of law no probability of fact may be drawn from the combined

circumstances.” Id. “The Commonwealth may sustain its burden of proving

every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Id.

      In applying the above test, we must evaluate the entire record and we

must consider all evidence actually received. DiStefano, 782 A.2d at 582.

Further, “the trier 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.” Id.

      To establish criminal conspiracy, the Commonwealth must establish

“(1) an intent to commit or aid in an unlawful act, (2) an agreement with a

co-conspirator and (3) an overt act in furtherance of the conspiracy.”

Commonwealth v. Thomas, 65 A.3d 939, 944 (Pa.Super.2013) (quoting

Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa.Super.2001)). The

Commonwealth may prove an agreement by circumstantial evidence.            Id.

(citing Galindes, 786 A.2d at 1010). Circumstantial evidence:

         [C]an include, but is not limited to, the relationship
         between the parties, the knowledge of and participation in
         the crime, and the circumstances and conduct of the
         parties surrounding the criminal episode. These factors
         may coalesce to establish a conspiratorial agreement
         beyond a reasonable doubt where one factor alone might
         fail.

Id. (internal citations and quotation marks omitted). Further, the defendant

need not commit the overt act in furtherance of the conspiracy; the act may



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be committed by a co-conspirator.       Commonwealth v. Hennigan, 753

A.2d 245, 253 (Pa.Super.2000).

      Robbery is defined as:

         (1) A person is guilty of robbery if, in the course of
         committing a theft, he:

            (ii) threatens another with or intentionally puts him
            in fear of immediate serious bodily injury;

         (2) An act shall be deemed “in the course of committing a
         theft” if it occurs in an attempt to commit theft or in flight
         after the attempt or commission.

18 Pa.C.S. § 3701(a).      Further, “[s]erious bodily injury” is defined as

“[b]odily injury which creates a substantial risk of death or which causes

serious, permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.” 18 Pa.C.S. § 2301.

      A person commits the offense of receiving stolen property “if he

intentionally receives, retains, or disposes of movable property of another

knowing that it has been stolen, or believing that it has probably been

stolen, unless the property is received, retained, or disposed with intent to

restore it to the owner.” 18 Pa.C.S. § 3925(a).

      A person is guilty of firearms not to be carried without a license if he

“carries a firearm in any vehicle or . . . concealed on or about his person,

except in his place of abode or fixed place of business, without a valid and

lawfully issued license under this chapter . . . .” 18 Pa.C.S. § 6106(a)(1).

      Here, viewing the evidence in the light most favorable to the

Commonwealth, there was sufficient evidence for the fact-finder to find


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beyond a reasonable doubt that Appellant committed the aforementioned

crimes.

      The evidence established that Appellant agreed to commit robbery,

with an intent to do so, and committed an act in furtherance of the

conspiracy. Griffin testified that Appellant participated in the robbery, acting

as a lookout in the bank lobby and pointing a gun at a woman. Griffin also

stated that Appellant took a bag, with clothes, money and a gun, to Ms.

Cousler’s apartment.    Ms. Cousler testified that Appellant arrived at her

home with a bag containing money and a gun. Further, the bank manager

testified the man in the lobby pointed a gun at her, which another bank

employee confirmed.

      The Commonwealth presented evidence proving all elements of

robbery and receiving stolen property.     The testimony established that, in

the course of participating in a robbery, Appellant pointed a gun at the bank

manager.     See Commonwealth v. Hopkins, 747 A.2d 910, 914-15

(Pa.Super.2000) (factfinder entitled to infer victim was in mortal fear when

defendant brandished firearm).     The testimony also established Appellant

received $1,200.00 that he knew was stolen during the robbery of the bank

and that he had no intent of restoring it to the owner.      See 18 Pa.C.S. §

3925(a).

      The evidence also was sufficient to establish Appellant carried a

firearm without a license. Appellant stipulated that he did not have a license

to carry a firearm. There was testimony that Appellant pointed a gun at the

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bank manager, entered a car with the firearm, and brought a bag into

Cousler’s apartment that contained money and a gun.

       Appellant maintains the evidence was insufficient because there was

inconsistent testimony regarding which robber wore a red bandana during

the robbery.6      Minor inconsistencies in the testimony, however, do not

warrant relief.    See, e.g., Commonwealth v. Stokes, 78 A.3d 644, 651

(Pa.Super.2013) (minor inconsistencies in testimony are for jury to resolve).

Further, Appellant appears to contend the evidence was insufficient because

Griffin testified in exchange for consideration at sentencing and, when

questioning Ms. Cousler, the police informed her they could charge her in

connection with the robbery and could contact Children and Youth Services

regarding her children.       Appellant’s Brief at 17.   However, such testimony

goes to the weight, not the sufficiency of the evidence. Commonwealth v.

Palo, 24 A.3d 1050, 1055 (Pa.Super.2011) (argument that Commonwealth’s

case rested on testimony of disgruntled former girlfriend challenged the

weight of evidence, not sufficiency of evidence).          The jury was free to

believe Griffin’s and Cousler’s testimony. Commonwealth v. Mosley, 114

____________________________________________


6
  The bank teller testified that she thought the robber who came up to her to
demand the money wore a red bandana. N.T., 3/11/2014. Further, a friend
of co-conspirator Erik Clark testified that Clark told her he used a red
bandana to cover his face and showed her the bandana. Id. at 252. Griffin,
however, testified Appellant wore a red bandana and was the lookout in the
lobby. N.T., 3/13/2014, at 364, 366. Griffin said he did not know what
Clark wore to cover his face. Id.



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A.3d 1072, 1087 (Pa.Super.2015) (determining credibility is “function that is

solely within the province of the finder of fact which is free to believe all,

part of none of the evidence”).

       Accordingly, the evidence was sufficient to establish the crimes for

which Appellant was convicted.

       We now consider the legality of Appellant’s mandatory minimum

sentence under 42 Pa.C.S. § 9712.7             Although Appellant did not raise any

issue related to the legality of his sentence on appeal, we note that

____________________________________________


7
   Appellant challenged the constitutionality of the imposition of the
mandatory minimum sentence at his sentencing hearing. N.T., 4/29/2014,
at 2. The trial court noted it did not like imposing mandatory minimum
sentences, but it was required to do so. Id. The trial court further stated:

          Having said what I did about the mandatory minimums, I’ll
          say [in] this case I think the sentence that is required as
          the mandatory minimum is not excessive and is not
          inappropriate. And I believe the [c]ourt would have been
          looking to sentence in that range or near that range
          anyway.

Id. at 3. Further the court stated:

          [W]e note that the Commonwealth is invoking the
          mandatory minimum. The Court actually believes that the
          sentence on count 2, the robbery, that is an appropriate
          sentence and we will impose the sentence of 5 to 10 years
          in a state correctional institution on count 2.

Id. at 4. Although the trial stated it would have sentenced “in that range or
near that range” without the imposition of a mandatory minimum and that it
believed the sentence was appropriate, the trial court may have chosen a
different sentence if the mandatory minimum sentence had not been
invoked.



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questions regarding the legality of a sentence “are not waivable and may be

raised sua sponte by this Court.” Commonwealth v. Watley, 81 A.3d 108,

118 (Pa.Super.2013) (en banc), appeal denied, 95 A.3d 277 (Pa.2014).

Further, we note that issues regarding the Supreme Court of the United

States’ decision in Alleyne v. United States, __ U.S. __, 133 S.Ct 2151,

186 L.Ed 2d 341 (2013), directly implicate the legality of the sentence.

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super.2014).

      Our standard of review of questions involving the legality of a sentence

is as follows:

         A challenge to the legality of a sentence…may be
         entertained as long as the reviewing court has jurisdiction.
         It is also well-established that if no statutory authorization
         exists for a particular sentence, that sentence is illegal and
         subject to correction. An illegal sentence must be vacated.
         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.

Wolfe, 106 A.3d at 801-02 (citations omitted).

      In this case, Appellant was sentenced under the following statute:

         § 9712. Sentences for offenses committed with
         firearms

         (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 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

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        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. § 9718.

     In Alleyne, the Supreme Court of the United States held that the Due

Process Clause of the Constitution of the United States requires each factor

that increases a mandatory minimum sentence to be submitted to a jury and

found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. This Court

has found 42 Pa.C.S. § 9712, which permits the trial court to find facts

sufficient to impose the mandatory minimum by a preponderance of the

evidence,    unconstitutional    pursuant   to   Alleyne.   Commonwealth    v.

Valentine,     101    A.3d      801,   808-12    (Pa.Super.2014);   see   also

Commonwealth v. Hopkins, 117 A.3d 262, (Pa.2015) (18 Pa.C.S. § 6317,

which requires imposition of mandatory minimum sentence if certain

controlled substance crimes occur within 1,000 feet of, inter alia, a school,

held unconstitutional; statute was inconsistent with Alleyne because it


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required sentencing court to impose mandatory minimum sentence based on

facts which were not submitted to jury and not found beyond reasonable

doubt).

      Accordingly, because the trial court sentenced Appellant under section

9712, we must vacate Appellant’s judgment of sentence and remand for

resentencing without application of section 9712.

      Convictions affirmed. Judgment of sentence vacated; case remanded

for resentencing. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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