J-S61028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GREGORY STEVENS

                            Appellant                No. 1684 MDA 2014


          Appeal from the Judgment of Sentence of August 21, 2014
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No.: CP-40-CR-0003409-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                         FILED DECEMBER 11, 2015

       Gregory Stevens appeals his August 21, 2014 judgment of sentence.

We affirm the judgment of sentence in part, and we vacate it in part.

       Based upon events that occurred on December 21, 2013, which we

detail immediately below, Stevens was charged with robbery, theft by

unlawful taking, simple assault, and three counts of criminal conspiracy.1

Prior to trial, Stevens filed a motion to suppress evidence relating to his out-

of-court identification and evidence of conversations that were intercepted

while he was incarcerated on these charges. Following a hearing, the trial

court denied the motion. Stevens waived his right to a jury trial, and the

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       18 Pa.C.S. §§ 3701, 3921, 2701, and 903, respectively.
J-S61028-15



parties agreed to incorporate the testimony from the suppression hearing

into the trial record.   The Commonwealth produced additional testimony

from the victim of the robbery.     At the conclusion of trial, the trial court

found Stevens guilty of all of the charges.

      The following is a summary of the evidence that was produced at the

suppression hearing and the bench trial.

      On December 21, 2013, Burgit’s Taxi service in Wilkes-Barre,

Pennsylvania, dispatched Henry Robinson to 28 North Grant Street to service

a customer that had called and requested a ride. When Robinson arrived at

that location, five individuals got into Robinson’s cab. Robinson drove the

individuals to their desired location. However, when they arrived there, only

three of the individuals exited the cab. Two males remained in the cab, and

requested to be taken to a nearby Turkey Hill convenience store. Robinson

agreed to continue on to that location.

      When they arrived at the Turkey Hill, one of the men exited the cab

and went into the store.     The man, wearing a hoodie and marked with

tattoos on his face, tried to purchase cigarettes from the store, but to no

avail because he did not have identification proving that he was old enough

to buy cigarettes. The man returned to the cab and asked Robinson to take

them back to the original drop-off location.

      When they arrived back at the first location, one of the men, later

identified as Stevens, got out of the cab, opened the front passenger door,

and struck Robinson in the face with a gun. The two men hit Robinson two

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or three more times in the head.     While doing so, they stole Robinson’s

watch, cell phone, ring, and wallet. The men then removed Robinson from

the cab and forced him to lie on the ground while they rummaged through

the cab for additional items to steal. They then told Robinson to stand up

and run away.     Robinson fled to a nearby Rite Aid pharmacy, where he

called for police assistance.

      Sergeant Phil Holbrook and Corporal Dennis Monk, after learning the

details of the robbery, went to the Turkey Hill store and watched the

surveillance video.     Shortly thereafter, they received information that

another call had been placed to Burgit’s Taxi seeking a ride from 66 Kirby

Avenue, which was located across the street from the original drop-off

location. Sgt. Holbrook and Cpl. Monk believed that the call may have been

made by the individuals that had perpetrated the robbery.

      Cpl. Monk knew the family that resided at that residence.           He

attempted to contact the house, but no one answered. He then called the

owner of the house, Carol Kephart. Kephart told Cpl. Monk that only her two

children were permitted in the home, because she was out of town.        She

consented to police entering the residence and to a subsequent search once

inside.

      The police located eight people inside of the home.         The police

handcuffed the eight people for the officers’ safety.   The police decided to

bring Robinson to the house and have him attempt to identify either of the

robbers.   Robinson sat in a police car that was parked approximately fifty

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yards from the front door of the residence. Sgt. Holbrook instructed another

officer to bring each individual to the front door, one at a time.        Sgt.

Holbrook removed the handcuffs from each individual as they came to the

door and told each person that they were free to leave. When Stevens came

to the door, uncuffed and informed that he too was free to leave, Robinson

immediately recognized him as one of the men who had robbed him.

Robinson did not see Stevens at any time with handcuffs on his wrists.

Stevens was then stopped, and arrested.          Robinson stated that he was

absolutely certain that Stevens was one of the robbers. The police searched

the residence and found many of the items that were taken from Robinson

and the taxi. The police also found a firearm.

       Once at the police station, the police provided Stevens with Miranda2

warnings. Stevens denied participating in the robbery. He asserted that, on

the night in question, he had consumed some drugs and had fallen asleep.

He later admitted to the police that they had done a good job investigating

the crime, but that they would have done even better if they had caught the

other guy as well.        When Stevens was processed at the jail for intake

purposes, the police found $160.00 in twenty-dollar bills in Stevens’ sock.

       While in jail awaiting trial, Stevens made several phone calls that were

recorded, and ultimately intercepted and reviewed by the police.       The jail


____________________________________________


2
       Miranda v. Arizona, 384 U.S. 436 (1966).



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posted signs that informed the inmates that their phone calls may be

intercepted, monitored, or divulged to law enforcement authorities. Stevens

was provided with an identification number for use during phone calls and a

release form, which he signed, indicating the same.               Captain Mark

Rockovich, who was the head of intelligence and security at the jail, emailed

the assistant district attorney with the following information:

       We do not have any written guidelines regarding monitoring
       phone calls or visits. I am the only one in the prison that has
       access to listen to phone calls directly.         To assist in
       investigations regarding matters of security for the prison, the
       Warden or Deputy Warden will direct me to provide prison staff
       with recordings for review. The procedure to obtain recordings
       for law enforcement are made pursuant to Title 18 Section 5704,
       (14)(1)(C), which permits disclosure of such intercepted
       recorded material in response to a Court Order or in the
       prosecution or investigation of any crime.

       Simply put, the prison will listen when we believe there may be a
       threat to security of our facility and we will give copies to law
       enforcement with a court order or if they are investigating a
       crime.

       In the case of Gregory Stevens, a court order was signed by the
       Honorable Judge Gartley on October 28th, 2013, directing me to
       “turn over all of the telephone recordings, including visitor
       communications from inmate Gregory Stevens, Jr. from the date
       of incarceration, September 22nd, 2013 to October 29th of 2013.
       The second recording provided to the Fairview Township Police
       was from October 29th of 2013 to January 8th of 2014.[3]




____________________________________________


3
      All of the evidence pertaining to the intercepted recordings, including
the signs and email, were introduced into the record via stipulation by the
parties.



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In the recordings, Stevens discusses the charges against him, as well as the

gun that was used during the robbery and assault.          Furthermore, Stevens

admits on the recordings that he should not have pistol-whipped Robinson.

       As noted, the trial court convicted Stevens of all charges. In doing so,

the trial court also specifically concluded beyond a reasonable doubt that

Stevens used a firearm during the commission of the robbery. On August

21, 2014, Stevens appeared for sentencing. Stevens argued that the trial

court was precluded from applying the deadly weapon enhancement in the

sentencing guidelines, inter alia, because of the United States Supreme

Court’s decision in Alleyne v. United States, 133 S.Ct 2151 (2013). The

trial court rejected Stevens’ arguments, and applied the deadly weapon

enhancement in sentencing Stevens.               The court sentenced him to an

aggregate sentence of sixty months to one hundred and twenty months in

prison, to be followed by twenty-four months of probation.

       On September 2, 2014, Stevens filed a motion to modify his sentence,

which the trial court denied by an order dated September 5, 2014, and filed

on September 9, 2014.            On October 1, 2014, Stevens filed a notice of

appeal.4    In response, the trial court directed Stevens to file a concise


____________________________________________


4
      On October 24, 2014, this Court issued a rule to show cause on
Stevens as to why this appeal should not be quashed as untimely. Stevens
had appealed orders that had not been entered into the docket, and, thus,
the appeal appeared to be untimely. Following subsequent orders from this
Court, the trial court entered the orders on the docket, which demonstrate
(Footnote Continued Next Page)


                                           -6-
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statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Following an extension of time, Stevens filed a concise statement.              On

December 22, 2014, the trial court issued an opinion pursuant to Pa.R.A.P.

1925(a).

      Stevens raises the following six issues for our consideration:

      1. Whether the trial court erred by denying [Stevens’] motion to
         suppress where [Stevens] was illegally seized by officers who
         lacked probable cause for an arrest and, in the alternative,
         reasonable suspicion for an investigatory detention and all
         evidence resulting from said illegal seizure, including the
         identification, were fruit of the poisonous tree? [Stevens]
         was illegally seized in violation of the Fourth Amendment to
         the United States Constitution and Article I, Section 8 of the
         Pennsylvania Constitution.

      2. Whether the trial court erred by denying [Stevens’] motion to
         suppress where [Stevens] was under arrest and denied his
         right to an attorney at the in-person line up, in violation of
         the Sixth Amendment to the United States Constitution and
         Article I, Section 9 of the Pennsylvania Constitution, and all
         evidence resulting from said illegal line up, including the
         identification, were fruit of the poisonous tree?

      3. Whether the trial court erred by refusing to suppress
         intercepted   recordings      of     [Stevens]    where     the
         superintendent, warden, or a designee of the superintendent
         or warden or other chief administrative official of the Luzerne
         County Correctional Facility failed to promulgate guidelines to
         implement the provisions of 18 Pa.C.S. § 5704(14)?

      4. Whether [Stevens’] sentence is illegal because the
         Pennsylvania deadly weapon enhancement to the sentencing
         guidelines (204 Pa.Code § 303.10(a)(2)) is unconstitutional
         under Alleyne v. United States as violative of [Stevens’]
                       _______________________
(Footnote Continued)

that Stevens’ appeal was timely.           There is no jurisdictional impediment to
our review of this case.



                                            -7-
J-S61028-15


           right to a jury trial pursuant to the Sixth Amendment to the
           United States Constitution and Article I, Section 9 of the
           Pennsylvania Constitution?

      5. Whether the trial court erred by applying the Pennsylvania
         deadly weapon enhancement to the sentencing guidelines
         (204 Pa.Code § 303.10(a)(2)) where the Commonwealth
         amended the information to make possession of a weapon an
         element of the offense and the deadly weapon enhancement
         shall not be applied where such element is part of the
         statutory definition of the crime?

      6. Whether the Commonwealth failed to present evidence
         sufficient to demonstrate beyond a reasonable doubt that
         [Stevens] committed separate conspiracies to commit
         robbery, theft by unlawful taking, and simple assault, rather
         than one conspiracy, where the totality of the circumstances
         indicate that only a single conspiracy occurred?

Brief for Stevens at 2-4 (numbering added for ease of discussion and

disposition).

      Stevens’ first three issues arise from the trial court’s denial of his pre-

trial suppression motion.    Our standard of review for such claims is as

follows:

      In addressing a challenge to a trial court’s denial of a
      suppression motion, we are limited to determining whether the
      factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. Since the
      Commonwealth prevailed in the suppression court, we may
      consider only the evidence of the Commonwealth and so much of
      the evidence for the defense as remains uncontradicted when
      read in the context of the record as a whole. Where the record
      supports the factual findings of the trial court, we are bound by
      those facts and may reverse only if the legal conclusions drawn
      therefrom are in error.

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013) (citation

omitted).    Our scope of review in suppression matters includes only the

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suppression hearing record, and excludes any evidence elicited at trial. See

In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).

      In his first issue, Stevens alleged that he was seized in violation of the

Fourth Amendment to the United States Constitution and Article I, Section 8

of the Pennsylvania Constitution when the police entered the residence on

Kirby Avenue and detained everyone inside.          Stevens contends that the

interaction between him and the police constituted an arrest, but it was not

supported by probable cause. In the alternative, Stevens maintains that, if

the encounter was an investigatory detention, reasonable suspicion also was

lacking.

      Our resolution of this claim necessarily depends upon the nature of the

encounter between Stevens and the police. Interactions between police and

citizens   are   broken   down   into   three   categories:    mere   encounters,

investigative detentions, and custodial detentions.           Commonwealth v.

DeHart, 725 A.2d 633, 636 (Pa. Super. 2000).             Each level requires a

distinct level of justification, depending upon the nature of the interaction

between the police and the citizen.       Id.   A mere encounter can be any

formal or informal interaction, and carries no official compulsion to stop and

respond. Thus, it does not require any level of suspicion. Commonwealth

v. Guzman, 44 A.3d 688, 692 (Pa. Super. 2012).                  An investigative

detention carries with it an official compulsion to stop and respond, and,

while temporary, must be justified by “specific and articulable facts creating

a reasonable suspicion that the suspect is engaged in criminal activity.”

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Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (quoting

Dehart, 725 A.2d at 636).      An arrest, otherwise known as a custodial

detention, must be supported by probable cause. Id.

      An encounter becomes an arrest when, under the totality of the
      circumstances, a police detention becomes so coercive that it
      functions as an arrest. The numerous factors used to determine
      whether a detention has become an arrest are the cause for the
      detention, the detention’s length, the detention’s location,
      whether the suspect was transported against his or her will,
      whether physical restraints were used, whether the police used
      or threatened force, and the character of the investigative
      methods used to confirm or dispel suspicions.

Commonwealth v. Stevenson, 894 A.2d 759, 770 (Pa. Super. 2006)

(citations omitted).

      On the other hand:

      “An investigative detention occurs when a police officer
      temporarily detains an individual by means of physical force or a
      show of authority for investigative purposes.” Commonwealth
      v. Smith, 904 A.2d 30, 35 (Pa. Super. 2006) (quoting
      Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super.
      2005)). In other words, in view of all the circumstances, if a
      reasonable person would have believed that he was not free to
      leave, then the interaction constitutes an investigatory
      detention. See Commonwealth v. Peters, 642 A.2d 1126,
      1129 (Pa. Super. 1994) (quoting Commonwealth v. Harper,
      611 A.2d 1211, 1215 (Pa. Super. 1992)); Commonwealth v.
      Hill, 874 A.2d 1214, 1218-19 (Pa. Super. 2005) (quoting
      Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa. Super.
      2004)). An investigatory detention triggers the constitutional
      protection of the Fourth Amendment to the United States
      Constitution, Article I, Section 8 of the Pennsylvania
      Constitution, and the prerequisites for such a detention as set
      forth in Terry v. Ohio, 392 U.S. 1, 23–26, (1968); Smith, 904
      A.2d at 35 (quoting Barber, 889 A.2d. at 592).




                                   - 10 -
J-S61028-15


      An investigative detention is lawful if supported by reasonable
      suspicion. Commonwealth v. Sands, 887 A.2d 261, 269 (Pa.
      Super. 2005) (quoting Hill, 874 A.2d at 1217). “To meet the
      standard of reasonable suspicion, the officer must point to
      specific and articulable facts which, together with the rational
      inferences therefrom, reasonably warrant the intrusion.” Smith,
      904 A.2d at 35 (quotation omitted). In addition, “we must look
      to the totality of the circumstances to determine whether the
      officer had reasonable suspicion that criminal activity was afoot.”
      Id. at 35–36 (quoting Barber, 889 A.2d at 593).                 An
      investigative detention may last “as is necessary to confirm or
      dispel such suspicion.” Commonwealth v. LaMonte, 859 A.2d
      495, 500 (Pa. Super. 2004) (quoting Commonwealth v.
      Strickler, 757 A.2d 884, 889 (Pa. 2000)).

Commonwealth v. Cauley, 10 A.3d 321, 325-26 (Pa. Super. 2010)

(citations modified; footnote omitted).

      Under the circumstances of this case, no reasonable person would

have felt free to leave.     However, that factor does not distinguish an

investigatory detention from an arrest. Both types of encounters curtail an

individual’s freedom of movement.         We must consider the other factors

listed above.   To do so, we first must review the facts elicited at the

suppression hearing.

      On December 21, 2013, Stevens and four of his acquaintances called

and requested a taxi.    The taxi, driven by Robinson, picked them up and

dropped three of them off in a lot adjacent to 66 Kirby Avenue. Stevens and

another man remained in the cab, and requested a ride to a convenience

store. They then requested that Robinson drive them back to the location

across from 66 Kirby Avenue.     There, they beat Robinson with a gun and

took his belongings.


                                    - 11 -
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      The police investigated the robbery. At approximately 6:00 a.m. the

next morning, a mere seven hours after the robbery, someone called the

same taxi company from 66 Kirby Avenue and requested transportation.

The police suspected, due to the proximity in time and location from the

robbery, that the same individuals that had requested the cab earlier that

night had placed the call.

      The police surrounded the residence and attempted to contact people

inside the home.    Initially unsuccessful, the police contacted the owner of

the residence, who indicated that only her two children were permitted to be

in the residence when she was away.            She also consented to the police

entering the home.     Because they believed that the perpetrators of the

robbery may be inside, and because they knew that a firearm had been used

in the robbery, the police officers entered the residence with their weapons

drawn and announced their presence.            The police found eight individuals

inside of the home.        The police informed them that they were there to

investigate the robbery.      The individuals then became angry and hostile,

yelling at the officers.     Some of the individuals ignored orders to remain

where they were, and spread out throughout the residence.

      After the individuals continued to ignore orders to remain in the living

room, the police handcuffed each of them, searched them for weapons, and

ordered them to remain in the living room until they received further

instruction from the officers.     Cpl. Monk then spoke with each individual,




                                      - 12 -
J-S61028-15



requesting their names and dates of birth.          Stevens was one of the

individuals that was detained in the living room.

      Having considered these facts, and the applicable legal factors and

standards, we conclude that Stevens’ detention at 66 Kirby Avenue was an

investigative detention.   Undeniably, Stevens was detained against his will

and handcuffed. But, those are only two factors, and neither is dispositive.

Stevens, and the others, were detained to investigate whether any of the

individuals were involved in the robbery. The cause of the detention was not

to permanently detain anyone, or to effectuate a formal arrest, but rather to

investigate. Stevens was not detained for an unreasonable amount of time,

nor was he transported in any meaningful way to another location.        The

detention occurred inside a residence, one in which he was not permitted to

be, not in a police car or at the police station. No force or threat of force

was utilized against Stevens.      Of course, the police had their service

weapons drawn during entry, but that clearly was for their safety given the

nature of the crime that they were investigating and the fact that a gun was

used in that crime. Finally, nothing about the character or the investigative

methods used by the police compellingly demonstrates that the encounter

rose to the level of an arrest.

      To the contrary, the character of the investigation demonstrated that

the detention was not permanent, but rather was temporary and for the

purpose of determining the identity of the individuals inside the home and

whether they had participated in the robbery. For this reason in particular,

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J-S61028-15



and in conjunction with the reasons above, Stevens’ encounter with the

police was an investigatory detention.

      Having so determined, we next must decide whether the investigative

detention was supported by reasonable suspicion. As noted, within a span

of seven hours, Stevens and his friends requested a taxi to a lot across the

street from 66 Kirby Avenue, the taxi driver had been beaten with a gun and

robbed, and then the same taxi service received a call from 66 Kirby

Avenue. The police reasonably concluded that these events were connected,

and possessed the requisite reasonable suspicion to justify the detention.

Hence,   the   trial   court   correctly   concluded   that   Stevens   was   not

unconstitutionally detained.

      In his second issue, Stevens maintains that Robinson’s on-scene

identification of him exiting 66 Kirby Avenue was unconstitutional, because,

according to Stevens, he was entitled to have counsel at the time of his

arrest and subsequent identification.          Stevens primarily relies upon

Commonwealth v. Minnis, 458 A.2d 231 (Pa. Super. 1983), and

Commonwealth v. Richman, 320 A.2d 351 (Pa. 1974), both of which

stand for the proposition that the right to counsel attaches to identification

confrontations and procedures following warrantless arrests.            However,

neither of these cases applies in the instant case, and his argument is

unavailing.

      In Minnis, this Court held that “[i]n Pennsylvania, the right to counsel

attaches at the time of arrest and exists for identification confrontations

                                      - 14 -
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occurring after arrest, except prompt on-the-scene confrontations.” Minnis,

158 A.2d at 234. Similarly, in Richman, the Pennsylvania Supreme Court

noted that “[t]o allow uncounseled lineups between warrantless arrests and

preliminary arraignment would only encourage abuse of the exigent

circumstances exception and under-cut our strong policy requiring warrants

whenever feasible.” Richman, 320 A.2d at 354. Both holdings make clear

that an actual arrest is a prerequisite to triggering the right to counsel for

line-up purposes.   However, at the time of the identification in this case,

Stevens had not yet been arrested.

      In the previous discussion, we determined that the events that

occurred inside of the residence did not amount to an arrest. Shortly after

those events, the police transported Robinson to the scene and placed him in

a police cruiser that was parked at the end of the driveway, approximately

fifty yards from the front door.     The occupants of the home, including

Stevens, then were taken to the front door. Their handcuffs were removed.

Thus, Robinson never saw them restrained in any way. They were then told

that they were free to leave.      Each walked out of the door and began

walking away from the premises. However, when Stevens exited the house,

Robinson immediately identified him as one of the perpetrators of the

robbery. It was only then that Stevens was placed under arrest.

      Because Stevens had not yet been arrested at the time of the

identification, the right to counsel was not implicated, and he is not entitled

to the benefit of either of the two cases that he principally relies upon,

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Minnis and Richman.        The trial court did not err by denying Stevens’

suppression motion on this claim.

      In his third argument, Stevens claims that the trial court erred by not

suppressing the statements that he made during conversations that occurred

on the telephone when he was incarcerated prior to trial.          Specifically,

Stevens maintains that the statements should have been suppressed

because no relevant person promulgated guidelines to comply with the

relevant portion of Pennsylvania’s Wiretap Act, 18 Pa.C.S.A. §§ 5701–82.

For the reasons set forth immediately below, Stevens is not entitled to relief.

      Section 5704(14) of the Wiretap Act provides, in pertinent part, that:

      It shall not be unlawful and no prior court approval shall be
      required under this chapter for: ...

         (14) An investigative officer, a law enforcement officer or
         employees of a county correctional facility to intercept,
         record, monitor or divulge any telephone calls from or to
         an inmate in a facility under the following conditions:

            (i) The county correctional facility shall adhere to the
            following procedures and restrictions when intercepting,
            recording, monitoring or divulging any telephone calls
            from or to an inmate in a county correctional facility as
            provided for by this paragraph:

               (A) Before the implementation of this paragraph, all
               inmates of the facility shall be notified in writing
               that, as of the effective date of this paragraph, their
               telephone conversations may be intercepted,
               recorded, monitored or divulged.

               (B) Unless otherwise provided for in this paragraph,
               after intercepting or recording a telephone
               conversation, only the superintendent, warden or a
               designee of the superintendent or warden or other
               chief administrative official or his or her designee, or

                                    - 16 -
J-S61028-15


               law enforcement officers shall have access to that
               recording.

               (C) The contents of an intercepted and recorded
               telephone conversation shall be divulged only as is
               necessary to safeguard the orderly operation of the
               facility, in response to a court order or in the
               prosecution or investigation of any crime.

18 Pa.C.S.A. § 5704(14)(1)(A-C).       The Act further mandates that “[t]he

superintendent, warden or a designee of the superintendent or warden or

other chief administrative official of the county correctional system shall

promulgate guidelines to implement the provisions of this paragraph for

county correctional facilities.” Id. § 5704(14)(iv).

      From what we can glean from his argument, Stevens believes that

“promulgate” as used in subsection 5704(14)(iv) means written.       In other

words, Stevens contends that, because none of the enumerated parties

created a written protocol for intercepting jail phone calls, any statements

obtained via those calls must be suppressed.       We need not answer that

question specifically, because even if we assume, arguendo, that no relevant

person in this case “promulgated” guidelines, Stevens still has not

demonstrated that suppression is an available, or a justifiable, remedy.

      Notably, Stevens does not claim that the purported error in this case

was constitutional in nature.   Thus, we turn to the section of the Wiretap

Act, specifically 18 Pa.C.S. § 5721.1, which governs the available remedies

for nonconstitutional violations of the Wiretap Act:

      (b) Motion to exclude.--Any aggrieved person who is a party
      to any proceeding in any court, board or agency of this

                                     - 17 -
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     Commonwealth may move to exclude the contents of any wire,
     electronic or oral communication, or evidence derived therefrom,
     on any of the following grounds:

        (1) Unless intercepted pursuant to an exception set forth
        in section 5704 (relating to exceptions to prohibition of
        interception and disclosure of communications), the
        interception was made without prior procurement of an
        order of authorization under section 5712 (relating to
        issuance of order and effect) or an order of approval under
        section 5713(a) (relating to emergency situations) or
        5713.1(b) (relating to emergency hostage and barricade
        situations).

        (2) The order of authorization issued under section 5712 or
        the order of approval issued under section 5713(a) or
        5713.1(b) was not supported by probable cause with
        respect to the matters set forth in section 5710(a)(1) and
        (2) (relating to grounds for entry of order).

        (3) The order of authorization issued under section 5712 is
        materially insufficient on its face.

        (4) The interception materially deviated          from   the
        requirements of the order of authorization.

        (5) With respect to interceptions pursuant to section
        5704(2), the consent to the interception was coerced by
        the Commonwealth.

        (6) Where required pursuant to section 5704(2)(iv), the
        interception was made without prior procurement of a
        court order or without probable cause.

18 Pa.C.S. § 5721.1(b)(1-6).     Pursuant to subsection 5721.1(e), “[t]he

remedies and sanctions described in this subchapter with respect to the

interception of wire, electronic or oral communications are the only judicial

remedies and sanctions for nonconstitutional violations of this subchapter

involving such communications.” 18 Pa.C.S. § 5721.1(e).




                                   - 18 -
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      Subsection 5721.1(b) delineates the six nonconstitutional grounds for

which suppression is an available remedy.          If a defect in a wiretap

interception is not a constitutional error or is not one of those six grounds, a

trial court may not suppress evidence that resulted from the interception.

      As noted, Stevens does not raise a constitutional argument. Thus, he

must demonstrate that the error for which he complains falls within one of

the six enumerated categories.       However, Stevens presents no argument

whatsoever that any of the six grounds applies. In fact, Stevens does not

cite subsection 5721.1 at all. Consequently, even if his principal argument

were meritorious, he has not demonstrated that suppression would be the

correct remedy, and, therefore, has not proven that he is entitled to that

form of relief.

      In his fourth issue, Stevens contends that his sentence, which the trial

court formulated using the deadly weapon enhancement rubric in the

sentencing guidelines, is illegal.   Stevens maintains that the application of

the enhancement was unconstitutional pursuant to the United States

Supreme Court’s decision in Alleyne, wherein the Court held that any fact

that increases the mandatory minimum sentence for crime is an “element”

of the crime, not a “sentencing factor,” that must be submitted to a jury to

determine the validity thereof.      Alleyne, 133 S.Ct. at 2162.       Stevens

recognizes that, in Commonwealth v. Ali, 112 A.3d 1210 (Pa. Super.

2015), this Court already has held that Alleyne has no application to the

school zone or youth sentencing enhancements. We so held because:

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      [t]he enhancements do not bind a trial court to any particular
      sentencing floor, nor do they compel a trial court in any given
      case to impose a sentence higher than the court believes is
      warranted. They require only that a court consider a higher
      range of possible minimum sentences. Even then, the trial court
      need not sentence within that range; the court only must
      consider it. Thus, even though the triggering facts must be
      found by the judge and not the jury—which is one of the
      elements of an Apprendi [v. New Jersey, 120 S.Ct. 2348
      (2000)] or Alleyne analysis—the enhancements [] are not
      unconstitutional under Alleyne.

Ali, 112 A.3d at 1226. Stevens urges us to reconsider the Ali analysis as it

applies to the deadly weapon enhancement.

      We do not have the authority, nor the inclination, to overrule Ali.

Moreover, the deadly weapon enhancement, like the school and youth

enhancements, imposes no mandatory minimum sentence. Like those other

enhancements, it only directs the trial court to consider a different range of

potential minimum sentences by adding months of incarceration to the low

and high ends of the guideline range. The trial court retains the discretion to

fashion an individual sentence, and is not required to sentence an individual

within that specified range.   Consequently, Alleyne has no application to

this case, and Stevens’ claim necessarily fails.

      Stevens also argues that the trial court erroneously applied the deadly

weapons enhancement because “the Commonwealth made ‘with a deadly

weapon’ one of the statutory elements of robbery with which [] Stevens was

charged.”    Brief for Stevens at 31-32.           Indeed, and confusingly, the

Commonwealth added that language to the definition of robbery in the

criminal information.   Stevens also correctly notes that, pursuant to the

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sentencing guidelines, “[t]here shall be no Deadly Weapon Enhancement for

. . . any other offense for which possession of a deadly weapon is an

element of the statutory definition.” 204 Pa.Code § 303.10(a)(3)(ix).

      However, this proscription refers only to the elements of the “statutory

definition.”   The definition of robbery in the Crimes Code does not include

the element of the use of a deadly weapon. See 18 Pa.C.S. § 3701. The

Commonwealth cannot change or alter that definition simply by adding

language to a particular criminal information.      The proscription does not

refer to the language used by the Commonwealth in a criminal information,

nor does it make such an alteration available.     Stevens does not cite any

case law that stands for the proposition that, for purposes of the application

of the enhancement, the “statutory definition” of a crime is based upon the

manner in which Commonwealth frames a charge in a criminal information,

and we are aware of none. Stevens has not demonstrated that he is entitled

to relief on this claim.

      In his final claim, Stevens challenges the sufficiency of the evidence

presented by the Commonwealth to establish that he entered into three

separate conspiracies, one each for robbery, theft, and simple assault. Our

standard of review is well-settled:

      The standard we apply . . . 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 judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need

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      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
      [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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).

      Stevens concedes that the evidence was sufficient to prove beyond a

reasonable doubt that he was guilty of conspiracy to commit robbery. See

Brief for Stevens at 34 (“In the instant matter, it is clear that the evidence

was sufficient to demonstrate only that a single conspiracy existed between

[] Stevens and the other suspect to carry out actions aimed at removing

property from the cab driver by force.”). However, he maintains that only

the robbery conspiracy existed, and that the evidence did not prove

otherwise.   The Commonwealth agrees.        In its brief, the Commonwealth

“concedes that there was insufficient evidence to establish separate

conspiracies for theft and simple assault.” Brief for the Commonwealth at

16.

      Because of the Commonwealth’s concession, we vacate Stevens’

judgment of sentence as to conspiracy to commit theft and conspiracy to

commit simple assault. We agree with the Commonwealth and Stevens that


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the evidence was insufficient to prove separate, individual conspiracies to

commit each of those crimes.      Nonetheless, we need not remand for

resentencing.   Stevens only was sentenced on the conspiracy to commit

robbery conviction.   The trial court concluded that the conspiracies to

commit theft and simple assault merged with the conspiracy to commit

robbery. Hence, there is no reason to remand for resentencing, because our

decision to vacate those two crimes does not upset the trial court’s

sentencing scheme in any way.

      Judgment of sentence affirmed in part, vacated in part.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




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