J-S44030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ISAAH J. SAMPSON,

                         Appellant                   No. 1969 EDA 2016


                  Appeal from the PCRA Order May 25, 2016
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0001082-2011



BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 25, 2017

      Appellant, Isaah J. Sampson, appeals pro se from the order denying

his petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541–9546.     On appeal, Appellant argues that the new rule asserted in

Alleyne v. United States, 133 U.S. 2151 (2013), should be applied

retroactively to his case and his sentence should be modified accordingly.

We affirm.

      The facts and procedural history of this matter are as follows: On

December 30, 2010, Appellant and two other men robbed the KNBT Bank of

Emmaus at gunpoint. N.T., 11/16/11, at 25, 50. During the robbery, one of

the men struck a bank employee in the head with a gun. Id. at 14, 17, 59.

The men fled the bank after taking $11,529 from three separate tellers. Id.
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at 42, 57–58. Some of the money contained GPS tracking packaging, which

the police used to track the robbers. Id. at 27–33, 42, 57–58, 83–84; N.T.,

11/17/11, at 201–205.

      Officer William Bryfogle of the Emmaus Police Department was

approximately one and one-half miles away from the bank when he received

a call of suspicious activity at the bank. N.T., 11/16/11, at 82. He activated

his emergency lights and siren, which also activated his on-board video

camera, and drove to the bank.       Id.   On his way to the bank he was

informed “that a GPS unit has activated from the inside of the bank on a

money pack” and was leaving the bank. Id. at 83–84.

      Upon arrival at the bank, Officer Bryfogle observed three men wearing

dark clothing in a blue Mercury driving toward his patrol vehicle.       N.T.,

11/16/11, at 90. After turning to pursue the vehicle, Officer Bryfogle

observed a “black handgun come out the back passenger window of the

vehicle and point in [his] direction.” Id. at 95. Multiple bullets struck the

officer’s cruiser, but he escaped uninjured. Id. at 97.

      After turning onto Main Street, the passenger in the backseat, who

was later identified as Appellant, continued to fire his “black semi-automatic

handgun.” N.T., 11/16/11, 97–98. When the vehicle reached First Street,

the men in the backseat and front passenger seat exited the vehicle. Id. at

99.   Soon after, the driver exited the Mercury and started running.      Id.

Officer Bryfogle chased the driver on foot until Sergeant Troy Schantz struck


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the driver with his patrol vehicle.    Id.   The driver was then subdued,

handcuffed, and searched.      Id. at 180.   Officer Bryfogle’s actions were

captured by the dash camera of the patrol vehicle, which was introduced as

evidence at trial. Id. at 106–109.

     One of the responding officers, Budd Frankenfield of the Salisbury

Police Department, began a search by patrol vehicle and on foot on “Minor

Street, behind a business called Rodale.” N.T., 11/16/11, at 252–254. He

eventually observed a black male wearing dark blue sweatpants and a dark

blue hooded sweatshirt with a Champion logo. Id.; N.T., 11/17/11, at 46.

With the help of Sergeant Karl Geschwindt from the Emmaus Police

Department, Officer Frankenfield arrested the individual, later identified as

Appellant.   Id. at 259–260.   Appellant told Sergeant Geschwindt that his

name was “Andre.”    Id. at 290.     Images from the bank show one of the

robbers wearing a “dark in color, blue in color, Champion hooded

sweatshirt.” Id. at 40, 46, 125.

     During the search of the Mercury, Detective Timothy Hoats discovered

the money from KNBT Bank and a Blackberry cellular telephone.           N.T.,

11/17/11, at 206, 208.   Detective Jason Apgar analyzed the phone, along

with two other cell phones recovered by the police on the ground near the

Mercury and in its backseat. Id.; N.T., 11/18/11, at 43, 52–59.          The

detective discovered that the three phones belonged to the assailants. Id.

The phone recovered from the backseat passenger had photographs of


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Appellant. Id. at 52–59. Text messages from the phones also revealed the

planning of the bank robbery by the three individuals. Id. at 65–100.

       On November 21, 2011, a jury convicted Appellant of three counts of

robbery, attempted criminal homicide, two counts of aggravated assault, and

one count of criminal conspiracy to commit robbery.1 The trial court ordered

a presentence report following the jury’s verdict. On April 16, 2012, the trial

court held a sentencing hearing, where it considered both the presentence

report and the sentencing guidelines prior to imposing sentence.        At the

conclusion of the sentencing hearing, Appellant received a total sentence of

not less than thirty-three years but not more than seventy years in a state

correctional institution.     This Court affirmed the judgment of sentence on

October 4, 2013. Commonwealth v. Sampson, 87 A.3d 875, 2800 EDA

2012 (Pa. Super. filed October 4, 2013) (unpublished memorandum). The

Supreme Court denied Appellant’s petition for allowance of appeal on April

29, 2014.     Commonwealth v. Sampson, 89 A.3d 1284, 860 MAL 2013

(Pa. filed April 29, 2014).

       Appellant filed a pro se PCRA petition on July 9, 2015. The PCRA court

appointed counsel to represent Appellant on July 28, 2015. Counsel filed a




____________________________________________


1
  18 Pa.C.S. §§ 3701(a)(1)(ii), 2501 and 901, 2702(a)(1) and (2),
3701(a)(1)(ii) and 903, respectively.



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Motion to Withdraw as Counsel and a Turner/Finley2 letter on December

22, 2015.

       On February 18, 2016, the PCRA court entered an order providing

notice of its intention to dismiss the PCRA petition without a hearing

pursuant to Pa.R.Crim.P. 907(1).               On May 23, 2016, the PCRA court

dismissed the petition and granted counsel’s motion to withdraw as counsel.

       Appellant filed a pro se notice of appeal on June 15, 2016. On July 11,

2016, the PCRA court directed Appellant to file a Concise Statement of Errors

Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Appellant had until

August 1, 2016, to file his court-ordered Rule 1925(b) statement. The PCRA

court concluded Appellant had failed to file his Rule 1925(b) statement by

the due date and, thus, found all issues waived.             Trial Court Opinion,

8/18/16 at 11.       However, the docket indicates that Appellant mailed the

1925(b) statement on July 25, 2016, to the Lehigh County Clerk of Judicial

Records.     Under the prisoner mailbox rule, a prisoner’s pro se Pa.R.A.P.

1925(b) statement is deemed filed at the time it is given to prison officials or

put in the prison mailbox. Commonwealth v. Jones, 700 A.2d 423 (Pa.

1997). Thus, we consider Appellant’s 1925(b) statement to be timely. 3

____________________________________________


2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
3
  In the interest of judicial economy, we will not remand for a 1925(a)
opinion and will address Appellant’s appeal on its merits.



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      Appellant raises the following issues on appeal:

      I. Is Appellant entitled [to] a modification of sentence pursuant
      to Alleyne?

      II. Should the decision in Alleyne v. United States be applied
      retroactively to Appellant’s sentence?

Appellant’s Brief at 4 (issues reordered for ease of disposition).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s determination is “supported by the record

and free of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).    If a PCRA court’s credibility determinations are supported by the

record,   then   the   determinations    are   binding.   Commonwealth      v.

Robinson, 139 A.3d 178, 185 (Pa. 2016).           This Court applies a de novo

standard of review to the PCRA court’s legal conclusions. Commonwealth

v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015). The scope of review of

an appellate court in proceedings under the PCRA “is limited to the findings

of the PCRA court and the evidence of the record, viewed in the light most

favorable to the prevailing party at the PCRA court level.” Commonwealth

v. Koehler, 36 A.3d 121, 131 (Pa. 2012).

      Appellant argues that his sentence is illegal according to the United

States Supreme Court decision in Alleyne v. United States, 133 U.S. 2151

(2013). Appellant’s Brief at 16. The Alleyne Court held that any fact that

increases a mandatory minimum criminal penalty must be proven beyond a

reasonable doubt as an element of the offense, and it must be submitted to


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the jury.     Alleyne, 133 S.Ct. at 2155; see, e.g., Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015) (affirming the unconstitutionality of 18

Pa.C.S. § 6317, which imposes mandatory minimum sentencing for

controlled–substance crimes occurring near a school zone, as determined by

Alleyne).

      Alleyne is not applicable to Appellant’s case. As the Commonwealth

points out, “the sentencing court did not apply nor consider any mandatory

minimum statutes prior to imposing its sentence.” Commonwealth Brief at

7; N.T., 11/19/11, at 115–177. Accordingly, Appellant’s reliance on Alleyne

is misplaced.   Moreover, the jury heard the evidence and determined that

the prosecution satisfied the necessary elements for three counts of robbery,

attempted criminal homicide, two counts of aggravated assault, and one

count of criminal conspiracy to commit robbery beyond a reasonable doubt.

Thus, Appellant is not entitled to a modification of sentence.

      Appellant also argues that Alleyne should be applied retroactively to

his case. Appellant’s Brief at 12. According to Appellant, the Supreme Court

need not explicitly hold that a new rule is to be applied retroactively.   Id.

Appellant is incorrect.   Even if Alleyne were applicable, the rule created

therein would not be given retroactive effect.

      Unless either the United States Supreme Court or the Pennsylvania

Supreme Court explicitly holds a new rule to be retroactive, the new rule is

not retroactive to cases on collateral review. 42 Pa.C.S. § 9545(b)(1)(iii).


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In Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), the

Pennsylvania Supreme Court held that “Alleyne does not apply retroactively

to cases pending on collateral review . . . .” Id. at 820. Thus, because the

Pennsylvania Supreme Court’s holding in Washington would preclude

retroactive application of Alleyne to Appellant’s PCRA claim, he would not

be entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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