J-S80045-18

                                  2020 PA Super 152

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
               v.                                :
                                                 :
                                                 :
    BRANDON LITES                                :
                                                 :
                      Appellant                  :   No. 822 EDA 2018

           Appeal from the Judgment of Sentence February 12, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000302-2016

BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

OPINION BY NICHOLS, J.:                                       FILED JUNE 29, 2020

        Appellant Brandon Lites appeals from the judgment of sentence,

imposed following a jury trial for burglary, attempted rape, indecent assault,

criminal trespass, and simple assault.1 Appellant’s counsel, J. Anthony Foltz,

Esq., has filed a petition to withdraw pursuant to Anders v. California, 386

U.S. 738 (1967), and Appellant has filed a pro se response.                In our prior

memorandum          decision,   we   initially   affirmed   Appellant’s   judgment   of

sentence and granted Attorney Foltz’s petition to withdraw. Subsequently,

Appellant retained Jerome M. Brown, Esq., who filed a motion for

reconsideration challenging the legality of Appellant’s sentence. This Court

granted reconsideration limited to that issue and withdrew our prior


____________________________________________


118 Pa.C.S. § 3502; 18 Pa.C.S. § 3121; 18 Pa.C.S. § 3126; 18 Pa.C.S. §
3503; 18 Pa.C.S. § 2701.
J-S80045-18


memorandum      decision.    This   decision   replaces   our   withdrawn   prior

memorandum decision.         For the reasons that follow, we affirm the

convictions, grant Attorney Foltz’s petition to withdraw, but vacate the

judgment of sentence and remand for resentencing.

      Because the parties are familiar with this matter, we do not

extensively restate the facts of this case.       Briefly, the Commonwealth

charged Appellant with the above-mentioned offenses for a June 24, 2014

incident in which an individual sexually assaulted the then eighty-one-year-

old victim inside the victim’s apartment.

      Prior to trial, Appellant filed a motion for a competency determination

of the victim. The trial court denied Appellant’s motion without prejudice to

re-raise the issue at the time of trial. Order, 10/27/17.       According to the

docket, on December 18, 2017, the Commonwealth made an oral motion in

limine to preclude any mention of a competency evaluation, which the trial

court granted that same day. Docket at 5. The trial court, however, noted

that the victim testified at a competency hearing prior to trial.     See N.T.,

12/20/17, at 47.

      At the jury trial, Appellant’s trial counsel did not object to the victim’s

competence during the victim’s trial testimony.      The victim testified about

the sexual assault, but did not identify Appellant as the perpetrator of the

assault.   N.T., 12/20/17, at 42-43.           The Commonwealth, however,

introduced DNA evidence from a “rape kit” that inculpated Appellant. Id. at


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J-S80045-18


111-12. Appellant testified on his own behalf and denied any involvement in

the attack.   The jury found Appellant guilty, and the court ordered a

presentence investigation report.

      On   February   9,   2018,    the   Commonwealth   filed   a   sentencing

memorandum that listed Appellant’s criminal history, including his guilty plea

to first-degree felony burglary on August 16, 1994.          Commonwealth’s

Sentencing Memo., 2/9/18, at 2 n.2, 3 (unpaginated). The Commonwealth

did not attach any supporting documentation for its list, but asserted that

Appellant should be sentenced as a second-strike offender under 42 Pa.C.S.

§ 9714 based on a prior burglary conviction in 1994.

      At the sentencing hearing, the Commonwealth presented its reasoning

for a mandatory minimum sentence:

      It is the Commonwealth’s position that the mandatory minimums
      apply to both the counts for criminal attempted rape and
      burglary. Burglary was Count 1. Criminal attempted rape was
      Count 2. Your Honor, under Title 42, Section 9714 (a), the law
      states that if [Appellant] is convicted of a crime of violence at
      the time—and at the time of the commission of that offense they
      were already previously convicted of a crime of violence, then
      there should be a mandatory minimum applied to that charge.
      Your Honor, the crime of violence is defined under the statute,
      and criminal attempt to rape, as well as burglary that he was
      convicted of, are both crimes of violence, so they would apply to
      both of those charges. As to his prior offense, Your Honor,
      [Appellant] did commit a burglary on June 9th, 1994, and, Your
      Honor, he pled guilty to that charge. The Commonwealth will be
      handing up to the Court Commonwealth Exhibit—Sentencing
      Exhibit 1, which was provided to [Appellant’s] counsel previous




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J-S80045-18


       to the sentencing date.[2] And, Your Honor, they’re just the
       documents that show his conviction, as well as the information
       with the statute on it. Your Honor, [Appellant] was convicted
       of burglary, felony of the first degree. Now, Your Honor,
       under Section (g) of Title 42, Section 9714, it says that burglary,
       as defined in the current law, Section—Title 18, Section
       3502(a)(1), or its equivalent offense also applies as a crime of
       violence and has to be the equivalent offense that he was
       convicted of at the time that the act was committed. Your
       Honor, I have attached in Appendix B I believe that it is in my
       sentencing memorandum a copy of the statute that was in place,
       the burglary statute was in place at that time when he
       committed the offense. And, Your Honor, you will find that all of
       the elements in that statute are identical for the felony one
       burglary to the elements that he was convicted of for this
       burglary offense, which is a crime of violence. So, Your Honor,
       that’s why the Commonwealth is representing that this is an
       equivalent offense to burglary as defined in the current burglary
       statute under Subsection(a)(1). For that reason, Your Honor, his
       prior offense is an equivalent offense that was committed at
       the—or that was—that was equivalent offense for the statute
       that was there at the time in 1994 when he committed the
       offense. Your Honor, given that it applies to the prior offense
       and given that the current offenses are crimes of violence, the
       mandos apply. Your Honor, if I may proceed, I don’t know if
       defense wants to offer his argument as to the mandos now or I
       could proceed with the rest of my argument.

N.T. Sentencing Hr’g, 2/12/18, at 27-29 (emphasis added).

       After additional unrelated argument by the Commonwealth, Appellant’s

plea counsel briefly countered as follows:

       Based on the exhibit there that has the information, as well as
       the sentencing sheet, neither one of those indicate that what
       [Appellant] pled to was burglary with the person present. I
       would argue that without that key factor in there, that the
____________________________________________


2 The Commonwealth’s sentencing exhibits were not in the certified record
transmitted to this Court.




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       mandatory minimum should not apply because that is not a first-
       string offense.

Id. at 39.3

       At the conclusion of the hearing, the trial court imposed a mandatory

minimum sentence of ten to twenty years’ imprisonment for burglary,

followed by a consecutive mandatory minimum sentence of ten to twenty

years’ imprisonment for attempted rape.          Id. at 45-46.   The trial court

imposed concurrent sentences for the remaining counts. Appellant did not

file post-sentence motions.

       Appellant timely appealed, and the trial court ordered Appellant to

comply with Pa.R.A.P. 1925(b), and Attorney Foltz filed a Pa.R.A.P.

1925(c)(4) statement of intent to file an Anders brief. Attorney Foltz filed a

petition to withdraw and an Anders brief with this Court.

       In the Anders brief, Attorney Foltz raised one question:

       Did the trial court err in denying the motion of [Appellant’s]
       counsel for an evaluation of the competency of the alleged
       victim, R.L. to testify at the trial of [Appellant]?

Anders Brief at 6.

       In our prior memorandum decision, we held that Attorney Foltz’s

petition to withdraw and brief complied with the technical requirements of

____________________________________________


3 As noted above, the 1994 information for Appellant’s prior burglary
conviction was not included in the certified record as part of the
Commonwealth’s sentencing exhibits.




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Anders and Santiago.      See Commonwealth v. Orellana, 86 A.3d 877,

879-80 (Pa. Super. 2014).

      We then addressed the sole challenge raised in the Anders brief,

which was that the victim “clearly had difficulty recalling numerous facts

about the alleged attack [and that] counsel for the Commonwealth and the

judge of the trial court needed to ask numerous questions repeatedly to get

the answers that they sought.” Anders Brief at 15. We reviewed the trial

court’s ruling on a witness’s competency to testify for an abuse of discretion.

Commonwealth v. Delbridge, 855 A.2d 27, 34 (Pa. 2003); see also

Pa.R.E. 601; Commonwealth v. Boich, 982 A.2d 102, 109-10 (Pa. Super.

2009) (en banc).

      Following our review, we concluded that Appellant’s intended challenge

to the competency of the victim was frivolous. See Boich, 982 A.2d at 110.

The trial court, we held, acted within its discretion to deny Appellant’s pre-

trial motion without prejudice.    See id.    Appellant did not re-raise his

objection at trial. Furthermore, the trial court observed the victim testify at

trial and did not signal any concern about her competency. See id. Nothing

in the victim’s testimony reflected a basis for Appellant or the trial court to

establish that the victim was incapable of perceiving the assault she

experienced, was unable to make herself understood, had an impaired

memory, or did not understand her duty to tell the truth. See id. at 109-10.




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J-S80045-18


Therefore, we agreed with Attorney Foltz that this claim lacked any support

in the record or law. See Orellana, 86 A.3d at 882 n.7.

       In our prior memorandum decision, we also addressed the thirteen

issues Appellant raised in his pro se response.4 We quoted Appellant’s first

five issues in his pro se response as follows:

       1) [Appellant] submits that mitigating circumstances are present
       in this case given that [Appellant] was denied DNA expert
       witness to be present and[/]or available to aid [the] jury with
       interpretation of scientific evidence beyond the competence of a
       lay person pursuant to (Pa.R.E. 702-3)[. Appellant] cites Todd
       Heller, Inc. v. United Parcel Service, 754 A.2d 689[.]

       2) Detective [Nelson] Collins[’s] testimony of the description of
       the attacker having a moustache was hearsay, false and
       inconsistent with previous testimony statements made in prior
       official proceeding under oath pursuant to 18 Pa.C.S.A. § 4902[.]

       3) [Trial counsel] failed to object and cross-examine Detective
       Collins on his inconsistent testimony of the description of the
       attacker pursuant to 28 U.S.C. § 2254[.         Appellant] cites
       Commonwealth v. Rolan[,] 742 A.2d 210[,] No[.] 4591
       Phila[.] 1997 slip op. (Pa. Super. Ct. 1999)[.]

       4) [Trial counsel] failed to investigate that [Appellant] wasn’t
       even staying, nor was [he] in Pa. at the time or during when this
       crime occurred pursuant to Strickland[,] 466 U.S. at 689[.
       Appellant] cites United States v. Gray, 878 F.2d 702[,] 711
       (3d Cir. 1989)[.]

____________________________________________


4 We noted that Appellant’s pro se response consisted of only the issues
without any argument or reference to the record where the issues appeared.
Although this Court “will not act as counsel and will not develop arguments
on behalf of” Appellant, see Commonwealth v. Kane, 10 A.3d 327, 331
(Pa. Super. 2010), we reviewed Appellant’s issues to determine whether
they were frivolous.




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      5) Jury was denied taking notes during the course of [Appellant’s
      criminal] trial. During their deliberations[,] they lacked notes
      which could have helped them refresh and recollect expert
      witness testimony to be used as memory aids pursuant to Rule
      644 Trial Procedures[.]

Appellant’s Pro Se Resp., 12/3/18, at 1-2 (unpaginated).

      Our   prior   memorandum     resolved   Appellant’s   issues   as follows.

Appellant’s first issue was that the trial court erred in denying his request for

a DNA expert witness. Appellant’s Pro Se Resp. at 1. Appellant, however,

did not identify where in the record he requested any such expert and our

review has not identified any such request. Thus, he did not preserve his

issue for appellate review.    See Pa.R.A.P. 302(a) (stating, “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time

on appeal”).

      Appellant’s second issue was also frivolous.     By way of background,

Detective Collins was not asked at the preliminary hearing about Appellant’s

appearance, let alone whether Appellant had a moustache.             N.T. Prelim.

Hr’g, 1/11/16, at 54-64. At trial, Detective Collins testified that Appellant’s

driver’s license photo depicted him with a moustache, which was consistent

with the victim’s description of her attacker.    N.T. Trial, 12/20/17, at 86.

Therefore, there was no conflict between Detective Collins’s preliminary

hearing testimony and his trial testimony.

      Appellant’s third, fourth, and fifth issues pertained to trial counsel’s

purported ineffective assistance. Appellant, however, has not asserted any


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claim of ineffective assistance of trial counsel that can be considered on

direct appeal under Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.

2013).    Therefore, we deferred these claims to Post Conviction Relief Act

review. See id.

       Appellant’s last eight issues alleged various errors at his preliminary

hearing. See Appellant’s Pro Se Resp., 12/3/18, at 3-4 (unpaginated). It is

well-settled that any purported defect or error at the preliminary hearing

stage is immaterial if the defendant has been found guilty at trial.                     See

Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013) (holding, “once

a defendant has gone to trial and has been found guilty of the crime or

crimes    charged,    any    defect   in    the   preliminary       hearing   is   rendered

immaterial” (citation omitted)).           We held in our prior memorandum that

because Appellant had been found guilty after a jury trial, any alleged errors

occurring at his preliminary hearing were immaterial. See id.

       On February 1, 2019, we filed our memorandum decision affirming the

judgment of sentence below and granting Attorney Foltz’s petition to

withdraw. Subsequently, on February 4, 2019, Attorney Brown entered his

appearance, and then he filed the motion for panel reconsideration raising

the sole legality-of-sentence claim. See Commonwealth v. Ausberry, 891

A.2d     752,   754   (Pa.   Super.    2006)      (stating,     a    “defendant     or   the

Commonwealth may appeal as of right the legality of the sentence.” (citation

omitted)).      On March 20, 2019, this Court granted Attorney Brown’s motion


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for panel reconsideration limited to that issue and withdrew its prior

February 1, 2019 memorandum decision.5

       On appeal, Appellant initially argues that the 1994 version of the

burglary    statute    is   substantially      different   than   the   current   version.

Appellant’s Brief at 9-10. He asserts that the “1994 version of the burglary

statute did not require that the property be adapted for overnight

accommodations and a person must be present.”                     Id. at 11 (emphasis

added). Appellant also contends that the intent of the 1994 burglary statute

was to criminalize the illegal entry of commercial buildings. Id. at 11.

       Appellant claims that the intent of the current burglary statute, in

contrast, was to criminalize unauthorized entry into places adapted for

overnight accommodation and where a person was present.                           Id.   In

Appellant’s view, given the commercial focus of the 1994 burglary statute

and the residential focus of the current burglary statute, the Commonwealth

failed to establish that the current burglary statute was identical to the 1994

burglary statute. Id. at 12. In sum, Appellant argues that because his 1994


____________________________________________


5 Because we withdrew our prior memorandum decision, we reiterated our
prior holdings. Cf. Levy. v. Senate of Pa., 94 A.3d 436, 438 n.4 (Pa.
Cmwlth. 2014) (noting Court had previously filed an opinion, granted a
petition for reconsideration, withdrew the prior opinion, ordered
supplemental briefs limited to a particular issue, and the Court’s current
opinion addressed both the new issue “as well as the issues previously
addressed in our withdrawn opinion.”).




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burglary conviction was not a crime of violence, the trial court erred by

imposing a mandatory minimum sentence. Id. at 8.

       The Commonwealth argues that under the grading statute in effect in

1994, “first degree burglary and not second degree burglary was a crime of

violence.” Commonwealth’s Brief at 10.6 The Commonwealth asserts that in

1994, first degree burglary included burglary of a structure adapted for

overnight accommodation and an individual is present.                 Id. at 11.      The

Commonwealth concludes that the trial court properly found that Appellant

was convicted of a burglary while a person was present, and the trial court

therefore found Appellant’s 1994 burglary was a felony one burglary and a

crime of violence. Id. As we explain below, the Commonwealth’s argument

contradicts our Supreme Court’s holding in Commonwealth v. Northrip,

985    A.2d    734,    738     (Pa.   2009),       and   this   Court’s   reasoning    in

Commonwealth v. Spenny, 128 A.3d 234 (Pa. Super. 2015).

       The standard of review follows:

       The scope and standard of review applied to determine the
       legality of a sentence are well established. If no statutory
       authorization exists for a particular sentence, that sentence is
       illegal and subject to correction. An illegal sentence must be
       vacated. In evaluating a trial court’s application of a statute, our

____________________________________________


6 We note that the Commonwealth’s brief quoted from the affidavit of
probable cause for Appellant’s 1994 burglary, which states that a person was
present. Commonwealth’s Brief at 5 n.1 (quoting Aff. of Probable Cause,
6/9/94).




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J-S80045-18


     standard of review is plenary and is limited to determining
     whether the trial court committed an error of law.

Commonwealth v. Hodges, 193 A.3d 428, 433 (Pa. Super. 2018) (citation

omitted), appeal denied, 202 A.3d 40 (Pa. 2019).

     In interpreting a statute, we adhere to the following:

     Under the Statutory Construction Act of 1972, our paramount
     interpretative task is to give effect to the intent of our General
     Assembly in enacting the particular legislation under review. We
     are mindful that the object of all statutory interpretation is to
     ascertain and effectuate the intention of the General Assembly
     and the best indication of the legislature’s intent is the plain
     language of the statute. When the words of a statute are clear
     and unambiguous, we may not go beyond the plain meaning of
     the language of the statute under the pretext of pursuing its
     spirit.  However, only when the words of the statute are
     ambiguous should a reviewing court seek to ascertain the intent
     of the General Assembly through considerations of the various
     factors found in Section 1921(c) of the Statutory Construction
     Act, 1 Pa. C.S. § 1921(c).

Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019)

(citation omitted). We set forth the relevant statutes below.

          The Current Mandatory Minimum Sentence Statute

     Section 9714 currently provides for mandatory minimum sentences for

any person convicted of a second or subsequent crime of violence:

     (a) Mandatory sentence.—

        (1) Any person who is convicted in any court of this
        Commonwealth 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, notwithstanding any other provision of this
        title or other statute to the contrary. . . .


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                                       *       *      *

       (d) 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 sentencing court, prior to imposing sentence on an offender
       under subsection (a), shall have a complete record of the
       previous convictions of the offender, copies of which shall be
       furnished to the offender. If the offender or the attorney for the
       Commonwealth contests the accuracy of the record, the court
       shall schedule a hearing and direct the offender and the attorney
       for the Commonwealth to submit evidence regarding the
       previous convictions of the offender.        The court shall then
       determine, by a preponderance of the evidence, the previous
       convictions of the offender and, if this section is applicable, shall
       impose sentence in accordance with this section. . . .

                                       *       *      *

       (g) Definition.—As used in this section, the term “crime of
       violence” means . . . burglary as defined in 18 Pa.C.S. §
       3502(a)(1) (relating to burglary)[7] . . . or an equivalent crime
       under the laws of this Commonwealth in effect at the time of the
       commission of that offense or an equivalent crime in another
       jurisdiction.

42   Pa.C.S.     §   9714(a)(1),      (d),     (g)    (emphases   added);   see   also

Commonwealth v. Bragg, 133 A.3d 328, 333 (Pa. Super. 2016)

(reiterating that Section 9714 is not unconstitutional under Alleyne v.

____________________________________________


7 In 1994, the mandatory minimum statute defined “crime of violence” as
including “burglary of a structure adapted for overnight accommodation in
which at the time of the offense any person is present.” See 42 Pa.C.S. §
9714(g) (1994 version). We discuss the 1994 version of Section 9714
below.




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United States, 570 U.S. 99 (2013), because Section 9714 provides for

mandatory minimum sentences based on findings of prior convictions).

               The 1994 Statutory Definition of Burglary

      At the time of Appellant’s 1994 conviction for burglary, the burglary

statute stated as follows:

      (a) Offense defined.—A person is guilty of burglary if he enters
      a building or occupied structure, or separately secured or
      occupied portion thereof, with intent to commit a crime therein,
      unless the premises are at the time open to the public or the
      actor is licensed or privileged to enter.

                                 *     *      *

      (c) Grading.—

         (1) Except as provided in paragraph (2), burglary is a felony
         of the first degree.

         (2) If the building, structure or portion entered is not adapted
         for overnight accommodation and if no individual is present at
         the time of entry, burglary is a felony of the second degree.

18 Pa.C.S. § 3502 (subsequently amended in 2012, 2013, and 2016).

              The Current Statutory Definition of Burglary

      The current mandatory minimum statute defines “crime of violence” as

including burglary, as defined by 18 Pa.C.S. § 3502(a)(1):

      (a) Offense defined.—A person commits the offense of
      burglary if, with the intent to commit a crime therein, the
      person:

         (1)(i) enters a building or occupied structure, or separately
         secured or occupied portion thereof, that is adapted for
         overnight accommodations in which at the time of the offense
         any person is present and the person commits, attempts or
         threatens to commit a bodily injury crime therein;

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J-S80045-18



         (ii) enters a building or occupied structure, or separately
         secured or occupied portion thereof that is adapted for
         overnight accommodations in which at the time of the offense
         any person is present;

         (2) enters a building or occupied structure, or separately
         secured or occupied portion thereof that is adapted for
         overnight accommodations in which at the time of the offense
         no person is present;

         (3) enters a building or occupied structure, or separately
         secured or occupied portion thereof that is not adapted for
         overnight accommodations in which at the time of the offense
         any person is present; or

         (4) enters a building or occupied structure, or separately
         secured or occupied portion thereof that is not adapted for
         overnight accommodations in which at the time of the offense
         no person is present.

                                   *    *    *

      (c) Grading.—

         (1) Except as provided in paragraph (2), burglary is a felony
         of the first degree.

         (2) As follows:

            (i) Except under subparagraph (ii), an offense under
            subsection (a)(4) is a felony of the second degree.

18 Pa.C.S. § 3502(a), (c) (current version).      This current version of the

burglary statute was not in effect at the time of Appellant’s 1994 conviction.

           Comparison of Elements of 1994 Burglary Statute
                    to Current Burglary Statute

      In 1994, a “person is guilty of burglary if he enters a building or

occupied structure, or separately secured or occupied portion thereof, with


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J-S80045-18


intent to commit a crime therein, unless the premises are at the time open

to the public or the actor is licensed or privileged to enter.” 18 Pa.C.S. §

3502(a) (1994 version).8 The 1994 statute does not include a requirement

that a building be adapted for overnight accommodations or that a person be

present.

       The current burglary statute includes two additional elements. First,

that the building be adapted for overnight accommodations.                     Id. (current

version). Second, that a person be present. Id.

       Although     the   requirements         for   culpability   differ,   both   statutes

criminalize entry of a building with an intent to commit a crime therein,

which has been recognized as posing a threat of violence to any persons

within. See Northrip, 985 A.2d at 738. But in 1994, the Commonwealth

was not required to prove that a person was present or that the building was

adapted for overnight accommodations.                See 18 Pa.C.S. § 3502(a) (1994

version). With respect to the underlying policy considerations, we have not

discerned any basis for Pennsylvania’s decision to add two additional

elements.
____________________________________________


8 As set forth above, in 1994, burglary was graded as a felony of the first
degree unless the building at issue was not adapted for overnight
accommodation and no individual was present.            See 18 Pa.C.S. §
3502(c)(1)-(2) (1994 version). As we explain below, the trial court may
consider the grading of the prior burglary conviction only if it correctly
concludes that the elements of the prior burglary statute are identical to the
elements of the current burglary statute. See Spenny, 128 A.3d at 250.




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          Interpretation of the Mandatory Minimum Statute

     In 2009, the Northrip Court addressed whether a prior conviction for

arson in the third-degree in New York was equivalent to the Pennsylvania

crime of arson endangering persons.          Northrip, 985 A.2d at 735-36.

Initially, we recognize that the Northrip Court construed the mandatory

minimum statute that existed in 2009, which was amended in 2012. Based

on the then-existing statutory language, the Northrip Court held that “in

determining whether offenses are equivalent for purposes of applying

Section 9714, the court must consider the elements underlying the two

statutes, as well as the classification of the crimes, their definitions, and

their requirements.” Id. at 739.

     The Northrip Court instructed as follows:

     A sentencing court must carefully review the elements of the
     foreign offense in terms of classification of the conduct
     proscribed, its definition of the offense, and the requirements for
     culpability. Accordingly, the court may want to discern whether
     the crime is malum in se or malum prohibitum, or whether the
     crime is inchoate or specific. If it is a specific crime, the court
     may look to the subject matter sought to be protected by the
     statute, e.g., protection of the person or protection of the
     property. It will also be necessary to examine the definition of
     the conduct or activity proscribed. In doing so, the court should
     identify the requisite elements of the crime—the actus reus and
     mens rea—which form the basis of liability.

        Having identified these elements of the foreign offense, the
        court should next turn its attention to the Pennsylvania
        Crimes Code for the purpose of determining the equivalent
        Pennsylvania offense. An equivalent offense is that which
        is substantially identical in nature and definition to the out-
        of-state or federal offense when compared to the
        Pennsylvania offense.

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J-S80045-18



Northrip, 985 A.2d at 738 (some formatting altered and citation omitted).

       In reaching its holding, the Northrip Court pointed out that the

mandatory minimum statute specified a particular statutory subsection of

arson. Id. at 741. The Northrip Court noted that the mandatory minimum

statute also specified other crimes similarly, “listing either a single type of

crime or a specific subsection or subsections of particular crimes, most of

which are first-degree felonies.” Id.

       The Northrip Court found significant “the fact that with respect to

burglary, Section 9714 does not set out a statutory subsection at all.

Instead, it explicitly directs the sentencing court to apply a fact-based test

for determining whether the prior conviction is a crime of violence.”      Id.

“This very specific and deliberate method of defining crimes of violence in

Section 9714 demonstrates the Legislature’s clear intent that with respect to

all crimes except burglary, the focus is on the crime for which the defendant

was convicted, not the factual scenario underlying that crime.”9 Id.

____________________________________________


9 We acknowledge that in Commonwealth v. Samuel, 961 A.2d 57 (Pa.
2008), our Supreme Court construed the pre-2012 version of Section
9714(g), which had defined “crime of violence” as including “burglary of a
structure adapted for overnight accommodation in which at the time of the
offense any person is present . . . .” Samuel, 961 A.2d at 61 (quoting the
then-existing version of Section 9714(g)). Based on that version, the
Samuel Court held that a sentencing court should determine “whether a
defendant has been convicted of burglary ‘of a structure adapted for
overnight accommodation in which at the time of the offense any person is
present . . . .’” Id. at 65.
(Footnote Continued Next Page)


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        In sum, the Northrip Court held that the sentencing court’s analysis

should only focus on the statutory elements of the underlying crimes in

question. Id. at 738. The sentencing court must compare the elements of

the prior offense against the Pennsylvania Crimes Code for an equivalent

offense or, as in the instant case, against the current version of the burglary

statute.10 Id.




(Footnote Continued) _______________________

Subsequently, in 2012, the Legislature amended the mandatory minimum
sentence statute to eliminate the sole fact-based test for burglary. See 42
Pa.C.S. § 9714 (defining “crime of violence” as including “burglary as
defined in 18 Pa.C.S. § 3502(a)(1) (relating to burglary)”); Spenny, 128
A.3d at 249-50 (holding, “by amending section 9714(g) to remove any
factual analysis of the prior, out-of-state conviction,” it appears that “the
Legislature did so with the intent of adopting the Supreme Court’s strict-
elements interpretation” (emphasis added)). Therefore, the Samuel Court
did not construe the current version of Section 9714 or overrule the “strict-
elements” interpretation announced by the Northrip Court.
10   The Spenny Court observed,

        [t]o decide otherwise would not only run contrary to the above-
        cited case law, but could also implicate due process concerns. In
        some cases, courts in this Commonwealth would be serving as
        factfinder on the prior offense . . . . For [example, for] a
        Pennsylvania court to grade the prior conviction as an
        aggravated assault (a felony in Pennsylvania, see 18 Pa.C.S.A. §
        2702(b))     instead   of   simple    assault   (a   Pennsylvania
        misdemeanor, see 18 Pa.C.S.S. § 2701(b)) based upon the
        [factual] details of the underlying offense as contained in the
        other state’s record would be akin to resentencing the defendant
        without any of his or her constitutionally guaranteed protections.

Spenny, 128 A.3d at 250 n.13.




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      Recently, this Court applied the Northrip test to determine whether

corruption of a minor, as defined by Pennsylvania law in June 2010, was

equivalent to the definition of the offense after the Legislature amended the

law in October 2010. See Commonwealth v. Sampolski, 89 A.3d 1287,

1289 (Pa. Super. 2014). In Sampolski, in June 2010, the defendant pled

guilty to corruption of a minor, id. at 1287-88, which was then defined as

follows:

      Whoever, being of the age of 18 years and upwards, by any act
      corrupts or tends to corrupt the morals of any minor less than 18
      years of age, or who aids, abets, entices or encourages any such
      minor in the commission of any crime, or who knowingly assists
      or encourages such minor in violating his or her parole or any
      order of court, commits a misdemeanor of the first degree.

18 Pa.C.S. § 6301(a)(1) (June 2010 version). Under the version of Megan’s

Law that was in effect in June 2010, the defendant did not have to register

as a sex offender. Id.

      In October 2010, our Legislature amended the corruption of a minor

statute as follows:

      (a) Offense defined.—

           (1) (i) Except as provided in subparagraph (ii), whoever,
           being of the age of 18 years and upwards, by any act
           corrupts or tends to corrupt the morals of any minor less than
           18 years of age, or who aids, abets, entices or encourages
           any such minor in the commission of any crime, or who
           knowingly assists or encourages such minor in violating his or
           her parole or any order of court, commits a misdemeanor of
           the first degree.

           (ii) Whoever, being of the age of 18 years and upwards, by
           any course of conduct in violation of Chapter 31 (relating to

                                     - 20 -
J-S80045-18


         sexual offenses) corrupts or tends to corrupt the morals of
         any minor less than 18 years of age, or who aids, abets,
         entices or encourages any such minor in the commission of
         an offense under Chapter 31 commits a felony of the third
         degree.

18 Pa.C.S. § 6301(a) (October 2010 version).

      In December 2012, our Legislature replaced Megan’s Law with SORNA,

which identified various offenses that required registration as a sex offender.

Sampolski, 89 A.3d at 1288. In relevant part, that version of SORNA did

not require a defendant convicted of Section 6301(a)(1)(i) (October 2010

version) to register as a sex offender. Id. However, a defendant convicted

of Section 6301(a)(1)(ii) (October 2010 version), a felony of the third

degree and Tier 1 offense, was required to register under SORNA. Id. That

version of SORNA also provided that a “similar offense . . . under a former

law of this Commonwealth” was a Tier I offense that required registration.

Id. (citation omitted).

      In Sampolski, the Commonwealth notified the defendant that he

would have to register as a sex offender under SORNA, and the defendant

responded by filing a petition to enjoin registration. Id. The trial court ruled

in favor of the defendant, and the Commonwealth appealed. Id.

      On appeal to the Sampolski Court, the Commonwealth argued that

because the defendant pled guilty in June 2010 “to corruption of minors for a

sexual offense, his crime was” equivalent to Section 6301(a)(1)(ii) (October

2010 version), a registerable offense under SORNA. Id. at 1289. In other


                                     - 21 -
J-S80045-18


words, the Commonwealth argued that “the crime to which [the defendant

pled] guilty in June 2010 is a ‘former law of this Commonwealth’” qualifying

as a Tier I offense under SORNA. Id.

      In resolving the issue, the Sampolski Court held that the Northrip

analysis governs the question of whether the June 2010 version of

corruption of a minor is equivalent or similar to the October 2010 version of

corruption of a minor (specifically the sexual offense subsection). Id. The

Sampolski Court agreed with the trial court that the elements of the June

2010 version of corruption of a minor are not equivalent to the elements of

the October 2010 version of corruption of a minor, specifically Section

6301(a)(1)(ii).   Id.   The Sampolski Court held that the elements of the

June 2010 version required a single action involving the commission of any

crime, whereas the elements of the October 2010 version required a course

of conduct involving a sexual offense. Id. The Sampolski Court concluded

that because the elements of the former and present statutes are different,

the trial court correctly held that the defendant did not have to register

under SORNA. Id. at 1290.

      For the reasons stated herein, we conclude that the Northrip and

Sampolski Courts’ analyses apply to the instant case in determining

whether a 1994 burglary has “an equivalent offense,” i.e., an offense

“substantially identical in nature and definition” under the current Crimes

Code to burglary as defined in 1994. See 42 Pa.C.S. § 9714; Northrip, 985


                                    - 22 -
J-S80045-18


A.2d at 738; Sampolski, 89 A.3d at 1289.                  The Northrip Court

emphatically rejected an approach in which the sentencing “court must in

every instance consider the actual facts underlying a defendant’s prior out-

of-state conviction.”11       Northrip, 985 A.2d at 740 (emphasis added).

Similarly, the Sampolski Court focused solely on the elements of the former

and present offenses. See Sampolski, 89 A.3d at 1289.

       Whether Appellant’s 1994 Burglary is a Crime of Violence

       In Sampolski, the Court reiterated the Northrip analysis and

mandated that a sentencing court must identify the elements of the prior

offense, i.e., the 1994 burglary conviction, and determine whether a

Pennsylvania equivalent exists, e.g., whether 1994 burglary is equivalent to

Section 3502(a)(1) burglary as defined currently. See 42 Pa.C.S. § 9714(g)
____________________________________________


11 The Spenny Court approvingly quoted from the concurring opinion
authored by now Chief Justice Saylor, who joined the Northrip majority:

       On the other hand, various complexities attend the
       administration of an enhancement scheme accounting for
       specific factual elements, including: provision for the
       determination of particular facts in a system employing general
       verdicts; and the involvement of constitutional issues connected
       with sentencing enhancements, such as those arising under
       Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147
       L. Ed. 2d 435 (2000). In the face of such complexities, and
       consistent with the application of judicial restraint in defining the
       scope of criminal liability, I continue to support the notion that
       “equivalent crimes” are to be evaluated at an elemental level,
       absent more specific direction from the Legislature.

Spenny, 128 A.3d at 249 (citation omitted).




                                          - 23 -
J-S80045-18


(defining “crime of violence” as including Section 3502(a)(1) burglary or an

equivalent crime under Pennsylvania law at the time that crime was

committed); Northrip, 985 A.2d at 738; Sampolski, 89 A.3d at 1289. The

sentencing court must also consider the “classification of the crimes, their

definitions, and their requirements.”12            Northrip, 985 A.2d at 739.   In

determining whether the elements are identical, the grading of the offense

“is irrelevant” “[s]ince the fundamental inquiry is to the elements of the

offense.” Spenny, 128 A.3d at 246 (emphasis and citation omitted); see

also 18 Pa.C.S. § 103 (defining “element of an offense”); Commonwealth

v. Coleman, 433 A.2d 36, 39 (Pa. Super. 1981) (holding that when a

criminal statute is divided into definition and grading sections, the grading of

the offense is not considered a substantive element of the crime).13

       In 1994, burglary occurred when a person enters “a building or

occupied structure, or separately secured or occupied portion thereof, with
____________________________________________


12 By classification, our Supreme Court was not referring to grading, but
“whether the crime is malum in se or malum prohibitum, or whether the
crime is inchoate or specific.” Northrip, 985 A.2d at 738 (citation omitted);
see also Spenny, 128 A.3d at 246.
13 It is only after the trial court concludes that the elements of the prior and
current Pennsylvania offense are equivalent that the trial court may consider
the underlying facts for grading purposes. See Spenny, 128 A.3d at 250
(stating, “[o]nce the court conducts an analysis of the elements of the
foreign offense and finds the Pennsylvania offense that is substantially
identical in nature and definition to the out-of-state statute, . . . the
underlying record of the foreign offense may need to be considered for
grading purposes.” (quotation marks and citation omitted)).




                                          - 24 -
J-S80045-18


intent to commit a crime therein.”             See 18 Pa.C.S. § 3502(a) (1994

version).     Therefore, at the time of Appellant’s 1994 burglary conviction,

Section 3502(a)(1) did not require a building adapted for overnight

accommodations or a person to be present as one of the elements. See 18

Pa.C.S. § 3502 (1994 version); Commonwealth v. Ausberry, 891 A.2d

752, 754, 756 (Pa. Super. 2006) (noting that under former Section 3502(a)

and (c), as in effect in 1997, grading of burglary as first-degree felony could

include (1) a structure adapted for overnight accommodation and no

individual    is     present;   (2)   a   structure   not   adapted   for   overnight

accommodation and an individual is present; or (3) a structure adapted for

overnight accommodation and an individual is present).

      The current statutory definition of Section 3502(a)(1) burglary adds

two elements: (1) a building adapted for overnight accommodations, and (2)

a person must be present. See 18 Pa.C.S. § 3502(a)(1) (current version).

Neither statutory element is present in the 1994 version of Section 3502(a).

See 18 Pa.C.S. § 3502(a) (1994 version).

      Instantly, a review of the elements of former Section 3502(a) and

current Section 3502(a)(1) compels the conclusion that they are not

equivalent.        Unlike the 1994 statutory definition of burglary, the current

statutory definition of Section 3502(a)(1) burglary, which the mandatory

minimum sentence statute defines as a “crime of violence,” requires that a

person be present at the time of the burglary. See 18 Pa.C.S. § 3502(a)(1).


                                          - 25 -
J-S80045-18


Therefore, Section 3502(a)(1) burglary is defined more narrowly than it was

in 1994. Conversely, in 1994, Section 3502(a) burglary was defined more

broadly and did not include the element that a person be present.

      The Commonwealth, however, has urged this Court to recognize, for

the first time on appeal, the affidavit of probable cause for Appellant’s 1994

burglary, which states that a person was present.      See Commonwealth’s

Brief at 5 n.1.    Northrip and Sampolsk, however, instruct that the

sentencing court must not “focus . . . on the facts underlying a conviction,

but rather on the statute that triggered the conviction.” See Northrip, 985

A.2d at 741; Sampolski, 89 A.3d at 1289.             Therefore, neither the

sentencing court nor this Court may review the facts underlying Appellant’s

1994 burglary. See id.; Spenny, 128 A.3d at 249 (acknowledging “various

complexities” should a trial court be permitted to consider the facts

underlying a prior offense before imposing a mandatory minimum sentence);

Sampolski, 89 A.3d at 1289.

      As noted above, the Commonwealth asks this Court to recognize that

in 1994, first degree felony burglary was a crime of violence.            The

Commonwealth reasons that felony one burglary includes burglary of a

structure with a person present. The Commonwealth argues that because

the instant trial court found Appellant’s 1994 burglary was a felony one

burglary, Appellant’s 1994 burglary conviction constituted a crime of

violence.   Contrary to the Commonwealth’s position, the grading of


                                    - 26 -
J-S80045-18


Appellant’s 1994 burglary conviction is irrelevant because the 1994 burglary

and current burglary statutes are not identical. See Spenny, 128 A.3d at

246; see also Coleman, 433 A.2d at 39.

       In sum, the current Section 3502(a)(1) includes an element—person is

present—that is not in the 1994 version of Section 3502(a), we are

constrained to hold that burglary (as defined by former Section 3502(a)) is

not equivalent to burglary (as defined by current Section 3502(a)(1)). See

id. Compare 18 Pa.C.S. § 3502(a)(1), with 18 Pa.C.S. § 3502(a) (1994

version). Therefore, the Commonwealth failed to establish that Appellant’s

1994 burglary conviction was a crime of violence as defined by the current

mandatory minimum statute.            See 42 Pa.C.S. § 9714(g).       We therefore

affirm the convictions, vacate the judgment of sentence, grant Attorney

Foltz’s   petition   to   withdraw,     and    remand   for   resentencing   because

Appellant’s 1994 burglary conviction is not a crime of violence.14

       Judgment of sentence vacated. Attorney Foltz’s petition to withdraw

granted. Case remanded for resentencing. Jurisdiction relinquished.




____________________________________________


14 As we noted above, the Commonwealth presented evidence of the 1994
information to this Court for the first time on appeal. Because the 1994
information was not part of the trial court’s record, we cannot consider it on
appeal. See Pa.R.A.P. 1921. In any event, as our caselaw requires, the
facts set forth in the 1994 information are not relevant because the 1994
and current burglary statutes are not identical as to their elements.




                                          - 27 -
J-S80045-18



     President Judge Emeritus Bender joins the opinion.

     Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/20




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