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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
CHARLES WAYNE POU,                      :         No. 680 WDA 2014
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, April 2, 2014,
               in the Court of Common Pleas of Erie County
             Criminal Division at No. CP-25-CR-0002742-2013


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 28, 2015

     Charles Wayne Pou appeals from the judgment of sentence entered on

April 2, 2014, in the Court of Common Pleas of Erie County. We affirm.

     Following a jury trial, appellant was convicted of burglary, robbery,

criminal conspiracy, four counts of recklessly endangering another person,

possession of an instrument of crime, theft by unlawful taking, two counts of

unlawful restraint, and four counts of terroristic threats. The Commonwealth

filed a notice of intent to seek the mandatory minimum sentence and

appellant filed a pro se motion in objection.1      On February 21, 2014,

appellant began representing himself. On April 2, 2014, due to appellant’s

prior conviction for a crime of violence, the court imposed three consecutive


1
  The trial court denied this pro se motion during the sentencing hearing.
(Notes of testimony, 4/2/14 at 10.)
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mandatory minimum sentences of 10 to 20 years for appellant’s convictions

of robbery, conspiracy to commit robbery, and burglary.           These three

sentences were to be served consecutively to the sentence appellant was

serving at Docket Number 3261 of 1998.          The court imposed no further

penalty at the remaining counts. (Notes of testimony, 4/2/14 at 16-17.)

      On April 7, 2014, appellant filed a pro se post-sentence motion to

modify sentence and a pro se motion pursuant to Pa.R.Crim.P. 720 for a

new trial.     (Docket #32, 33.)    A supplemental post-sentence motion was

filed on April 11, 2014, seeking an arrest of judgment and the dismissal of

all charges.     (Docket #35.)     On April 14, 2014, appellant requested the

appointment of counsel. (Docket #36.) On April 16, 2014, the trial court

denied appellant’s post-sentence motions.       Thereafter, on April 24, 2014,

appellant filed a pro se notice of appeal. (Docket #40.) On April 29, 2014,

the trial court appointed counsel for purposes of appeal.       (Docket #41.)

Appellant complied with the trial court’s order to file a concise statement of

errors complained of on appeal within 21 days pursuant to Pa.R.A.P.,

Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

      The following issues have been presented on appeal:

             [1.]   DID THE TRIAL COURT ERR IN FAILING TO
                    GIVE AN ADEQUATE ALIBI INSTRUCTION TO
                    THE JURY?

             [2.]   DID THE TRIAL COURT ERR IN DENYING THE
                    DEFENSE THE RIGHT [TO] RECALL A WITNESS
                    TO THE STAND AND RECROSS THAT WITNESS
                    AFTER OTHER WITNESSES HAD TESTIFIED?


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            [3.]   DID THE TRIAL COURT ERR IN ALLOWING
                   PREJUDICIAL PHOTOGRAPHS INTO EVIDENCE,
                   WHEN THOSE PHOTOGRAPHS HAD THE
                   PHRASE “PENNSYLVANIA JUSTICE NETWORK”
                   WRITTEN ON THEM AND THUS[,] PREJUDICED
                   THE   JURY   BY  SHOWING     THEM   THAT
                   [APPELLANT] HAD A CRIMINAL HISTORY?

            [4.]   DID   THE   TRIAL  COURT   ABUSE   ITS
                   DISCRETION IN HANDING DOWN A SENTENCE
                   THAT WAS MANIFESTLY EXCESSIVE AND
                   CLEARLY    UNREASONABLE    WHEN     IT
                   SENTENCED [APPELLANT] IN A HIGH RANGE
                   WITHOUT GIVING ADEQUATE REASONS?

            [5.]   DID   THE   TRIAL   COURT   ABUSE   ITS
                   DISCRETION IN DENYING [APPELLANT’S]
                   MOTION TO OBJECT TO THE COMMONWEALTH
                   SEEKING    THE    MANDATORY    MINIMUM
                   SENTENCE SINCE THE JURY DID NOT
                   SPECIFICALLY DETERMINE THAT A FIREARM
                   WAS USED DURING THE COMMISSION OF THE
                   OFFENSE?

Appellant’s brief at 2.

      We note with disapproval that appellant’s brief fails to comply with the

Rules of Appellate Procedure; appellant has failed to support his first three

claims with citation to the record or proper discussion.     Pa.R.A.P. 2119;

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super. 2007) (it is an

appellant’s duty to present arguments that are sufficiently developed for our

review, with pertinent discussion, references to the record, and citations to

legal authorities; this court will not act as counsel and develop arguments on

behalf of an appellant). Rather than dismiss his appeal, however, we choose

to quickly dispose of appellant’s claims on the merits.


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      First, appellant claims the trial court erred by giving an inadequate

alibi instruction to the jury. This claim is waived because appellant did not

object to the trial court’s alibi instruction. (Notes of testimony, 2/12/14 at

164-165.) The trial court noted as much in its opinion. (Trial court opinion,

7/21/14 at 1.) Because appellant did not raise this claim below, it is waived.

Pa.R.A.P. 302(a).

      Next, appellant claims that the trial court erred in denying his right to

recall a witness to the stand after other witnesses testified.     Again, our

review of the record reveals that appellant did not object at trial. This claim

is also waived. Id. (See notes of testimony, 2/11/14 at 93.)

      The third issue is whether the trial court erred in allowing “prejudicial

photographs” into evidence.      Appellant argues the jury was shown a

photograph of him that was taken from the “Pennsylvania Justice Network”

which would have implied that he had previously been involved in the justice

system, which would have inflamed the jury “to the point where they would

have believed he could have been the person who committed a crime.”

(Appellant’s brief at 7.)   As the trial court aptly notes, appellant did not

timely and specifically object to these photographs at trial; nor does

appellant indicate where in the record he lodged his objection.           See

Pa.R.A.P. 2119. Thus, the issue is waved. Pa.R.A.P. 302(a).

      The fourth issue concerns the discretionary aspects of appellant’s

sentence. (Appellant’s brief at 7.) However, appellant fails to develop his



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position in the argument section of his brief and merely presents a bald

accusation that his sentence is excessive without support. Appellant’s brief

contains no argument on this issue, boilerplate citation to case law, and no

references to the record.       See Hardy, 918 A.2d at 771 (“[I]t is an

appellant’s duty to present arguments that are sufficiently developed for our

review.     The brief must support the claims with pertinent discussion, with

references to the record and with citations to legal authorities.”).

      Finally, appellant argues that the trial court abused its discretion when

it denied appellant’s motion to object to the Commonwealth’s mandatory

minimum sentence. Although appellant has not phrased his issue in terms

of the legality of his sentence with this court, it is apparent from the

argument he presented at the sentencing hearing and in his brief that he

seeks to challenge the legality of his sentence pursuant to the United States

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

S.Ct. 2151 (2013). (See notes of testimony, 4/2/14 at 8.)

      A challenge to the imposition of the mandatory minimum sentence is a

challenge to the legality of his sentence.    Commonwealth v. Foster, 17

A.3d 332, 345 (Pa. 2011). “When examining legality of sentence questions,

[the] standard of review is de novo and [the] scope of review plenary.”

Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa.Super. 2011) (citation

omitted).




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     While appellant avers that his mandatory minimum sentences were in

relation to his use of a firearm, the trial court clearly imposed three

ten-to-twenty-year sentences of incarceration for appellant’s robbery and

burglary convictions as a result of the second strike mandatory minimum

sentencing statute.   (See appellant’s brief at 8-9; notes of testimony,

4/2/14 at 16.) Pennsylvania law provides that an offender who “is convicted

. . . 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[.]” 42 Pa.C.S.A. § 9714(a)(1).

     In Alleyne, the Supreme Court held that any fact that increases the

mandatory minimum sentence for a crime is an element of the offense, and

not a sentencing factor, and must be submitted to the jury for proof beyond

a reasonable doubt.   Alleyne, supra.    In Almendarez-Torres v. United

States, 523 U.S. 224, 246 (1998), the Supreme Court explicitly stated, “the

fact of a prior conviction does not need to be submitted to a jury and found

beyond a reasonable doubt.”    Alleyne explicitly noted that Almendarez-

Torres remains good law and is a narrow exception to the general rule.

See Alleyne, supra at 1260 n.1.      The Pennsylvania Supreme Court has

determined that the Pennsylvania Constitution does not afford greater

protections. Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004). This

court has explained that:



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            Prior convictions are the remaining exception to
            Apprendi v. New Jersey, 530 U.S. 466 (2000), and
            Alleyne . . . , insofar as a fact-finder is not required
            to determine disputed convictions beyond a
            reasonable doubt to comport with the Sixth
            Amendment jury trial rights.        See Almendarez-
            Torres [supra].

Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa.Super. 2014).

      Thus, until the United States Supreme Court revisits Almendarez-

Torres or the Pennsylvania Supreme Court re-examines Aponte, appellant

is entitled to no sentencing relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2015




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