J-A01004-16

                                   2016 PA Super 25

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GREGORY BRAGG

                            Appellant                 No. 2040 EDA 2014


             Appeal from the Judgment of Sentence June 19, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000310-2013
                           CP-51-CR-0010290-2012 &
                         Nos. CP-51-CR-0010289-2012


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                       FILED FEBRUARY 05, 2016

       Appellant Gregory Bragg appeals from the judgment of sentence

entered by the Honorable Edward C. Wright of the Court of Common Pleas of

Philadelphia County after the trial court convicted Appellant of arson, two

counts of robbery, theft by unlawful taking, possession of an instrument of

crime, receiving stolen property, criminal mischief, and resisting arrest.1

Appellant challenges the sufficiency of the evidence supporting his arson and

robbery convictions and claims the trial court imposed an illegal mandatory

minimum sentence. After careful review, we affirm.



____________________________________________


1
   18 Pa.C.S.A. §§ 3301(a)(1)(i), 3701(a)(1)(ii)&(iv), 3921(a), 907(a),
3925(a), 3304(a)(2), and 5104, respectively. Appellant was charged on
three separate dockets.



*Former Justice specially assigned to the Superior Court.
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      Appellant was charged with the aforementioned offenses in connection

with two bank robberies in Philadelphia. On May 12, 2012, Appellant held

up the Citizens Bank at 7327 Frankford Avenue by demanding money from

the bank teller. Once the teller placed approximately $2,300 in Appellant’s

bag, Appellant noticed a dye pack attached to the money.           Appellant

removed the dye pack, threw it on the floor, and fled.       Witnesses saw

Appellant change his clothes in a nearby alley and burn the clothes he wore

in the robbery.

      Several months later, on August 11, 2012, Appellant entered the PNC

Bank at 6855 Frankford Avenue, wearing a red Phillies shirt, a baseball hat,

sunglasses, blue surgical gloves, and jeans. Appellant approached the teller,

growled “What are you looking at?,” banged on the counter, and demanded

money from the teller, who placed $3,700 in Appellant’s bag. Appellant fled

the bank and ran towards a residential driveway where a wooden fence

separated the driveway from the backyard of a row home.            Appellant

changed his clothes, poured gasoline on the clothes he wore in the robbery,

and lit them on fire.

      Philadelphia Police Sergeant Dennis Johnson received a radio dispatch

to the robbery at the PNC Bank and observed Appellant attempting to flee

down Knorr Street.      After Sergeant Johnson began pursuing Appellant on

foot, Appellant threw the stolen money in a trashcan.        When Sergeant

Johnson saw Appellant had a knife, he pulled out his firearm and ordered




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Appellant to drop his weapon.      Backup officers arrived to help Sergeant

Johnson place Appellant in custody.

      Several eyewitnesses identified Appellant as the perpetrator of the

robbery at PNC Bank. Later that evening, Appellant gave a formal written

confession, admitting he had robbed PNC Bank.        On September 7, 2012,

Appellant gave a similar written confession to admit he had also committed

the May 2012 robbery of Citizens Bank.

      Appellant waived his right to a jury trial and proceeded to a bench

trial, where the trial court convicted him of the aforementioned offenses. On

June 19, 2014, the trial court imposed an aggregate term of ten to twenty

years’ imprisonment. On July 18, 2014, Appellant filed this timely appeal.

      Appellant raises three issues for our review on appeal:

      1) The evidence was insufficient as a matter of law to convict
         [Appellant] of the crime of arson as set forth in 18 Pa.C.S.A. § 3301
         or § 3301(a.1).

      2) The evidence was insufficient as a matter of law to convict
         [Appellant] of the crime of robbery as set forth in 18 Pa.C.S.A. §§
         3701(a)(1)(i), 3701(a)(1)(ii), or 3701(a)(1)(iii).

      3) [Appellant] was illegally sentenced pursuant to 42 Pa.C.S.A. § 9714
         insofar as that statute, as written, violates [Appellant’s] rights
         under the Sixth Amendment to the U.S. Constitution (made
         applicable in this matter by the Fourteenth Amendment to the U.S.
         Constitution) and Article I, § 9 of the Pennsylvania Constitution.

Appellant’s Concise Statement pursuant to Pa.R.A.P. 1925(b), 11/7/14, at 2.

      In reviewing Appellant’s challenges to the sufficiency of the evidence

supporting his convictions, our standard of review is as follows:



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      The standard we apply in reviewing the sufficiency of the
      evidence 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 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
      proof 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 the evidence actually received must be considered. Finally,
      the trier of fact while passing on the credibility of witnesses and
      the weight of the evidence produced, is free to believe all,
      part[,] or none of the evidence.

Commonwealth v. Yong, 120 A.3d 299, 311 (Pa.Super. 2015) (citation

omitted).

      Appellant first claims there was insufficient evidence to support his

arson conviction under Section 3301(a)(1)(i) of the Crimes Code, which

provides in relevant part:

      A person commits a felony of the first degree if he intentionally
      starts a fire or causes an explosion, or if he aids, counsels, pays
      or agrees to pay another to cause a fire or explosion, whether on
      his own property or on that of another, and if: (i) he thereby
      recklessly places another person in danger of death or bodily
      injury, including but not limited to a firefighter, police officer or
      other person actively engaged in fighting the fire…


18 Pa.C.S.A. § 3301(a)(1)(i). Appellant claims the Commonwealth failed to

establish that he placed another person in danger of death or serious bodily

injury when he started the fire in the residential driveway. We disagree.

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       The Commonwealth presented evidence that Appellant threw his

clothes upon a residential driveway of an apartment building, poured a bottle

of gasoline onto the pile of clothing, and ignited a fire with a lighter. The fire

scorched a cinderblock wall and a wooden fence which separated the

driveway from a yard filled with heavy vegetation, which also began to burn.

A block of row homes was located at the end of the yard.

       The Commonwealth presented the expert testimony of Lieutenant

Edward Manko, Assistant Fire Marshal, who had testified based on his

twenty-five years of work experience at the fire department.           Lieutenant

Manko shared that in his experience, he had witnessed fires set in similar

outdoor locations that spread to surrounding homes.            After reviewing the

facts of the instant case, Lieutenant Manko opined that the fire could have

easily spread throughout the scorched vegetation in that neighborhood yard,

placing all the row homes in danger.           Accordingly, we conclude that there

was sufficient evidence for the trial court to uphold Appellant’s arson

conviction under Section 3301(a)(1)(i) as he placed another person in

danger of death or serious bodily injury when he started the fire in the

residential driveway.2
____________________________________________


2
  Appellant cites to Commonwealth v. McGinnis, 481 Pa. 394, 392 A.2d
1350 (1978), in which the Supreme Court filed a per curiam decision
affirming the trial court’s decision to sustain the defendant’s demurrer as the
prosecution failed to establish the crime of which the defendant was
charged, which included first-degree arson. The decision does not set forth
the facts of the case or offer the Supreme Court’s rationale for its
(Footnote Continued Next Page)


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      Second, Appellant claims there was insufficient evidence to support his

first-degree robbery conviction pursuant to Section 3701(a)(1)(ii) of the

Crimes Code, which provides that “[a] person is guilty of robbery if, in the

course of committing a theft, he …(ii) threatens another with or intentionally

puts him in fear of immediate serious bodily injury.”                  18 Pa.C.S.A. §

3701(a)(1)(ii). Appellant argues that he did not threaten or place anyone in

fear of immediate serious bodily injury as he entered the banks in broad

daylight, banged on the counter, and demanded money. Instead, Appellant

claims that he should have been convicted of a lesser offense, second-

degree robbery under Section 3701(1)(iv), which only requires evidence that

the defendant “threatens another with or intentionally puts him in fear of

immediate bodily injury.” 18 Pa.C.S.A. § 3701(a)(1)(iv).

      This Court has held that in order “to sustain a conviction under §

3701(a)(1)(ii), the Commonwealth need not prove a verbal utterance, but

may    show    aggressive       actions    that   threaten   serious   bodily   injury.”

Commonwealth v. Davis, 459 A.2d 1267, 1272 (Pa.Super. 1983).                         In

Davis, a defendant entered a pipe shop through the store window, told the

                       _______________________
(Footnote Continued)

conclusion. Our Supreme Court has clearly emphasized that such per curiam
decisions have no precedential effect and their legal significance is limited to
setting out the law of the case. Commonwealth v. Thompson, 604 Pa.
198, 213-14, 985 A.2d 928, 937-38 (2009). See also Commonwealth v.
Tilghman, 543 Pa. 578, 673 A.2d 898, 904 (1996) (establishing that a per
curiam order has precedential force only if it expressly affirms on the basis
of the lower court opinion).



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clerk to get back, and removed money from the cash register.          As the

Superior Court found that Appellant’s mode of entry and his warning to the

clerk were aggressive and implied a threat to the victim’s safety, the

Superior Court upheld the defendant’s robbery conviction under Section

3701(a)(1)(ii).

      Similarly, in the instant case, Appellant’s aggressive actions placed

employees and customers of PNC Bank in fear of serious bodily injury.

Appellant entered the bank, disguised himself with sunglasses and a baseball

cap, and equipped with surgical gloves to conceal his fingerprints. When he

reached the teller, he sneered, “What are you looking at?” Appellant then

banged his fists on the counter and demanded that the teller place only

large bills in his bag. While Appellant asserts he cannot be guilty of first-

degree robbery as he did not brandish a weapon or make a specific verbal

threat, this Court has never held that either action is required to sustain a

conviction under Section 3701(a)(1)(ii). Accordingly, we conclude that the

trial court did not err in finding sufficient evidence to support Appellant’s

robbery conviction under Section 3701(a)(1)(ii).

      Lastly, Appellant claims the trial court imposed an illegal mandatory

minimum sentence for his arson conviction in violation of Alleyne v. United

States, ___ U.S.___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).       Appellant

received a ten-year mandatory minimum sentence pursuant to 42 Pa.C.S.A.

§ 9714(a) based on his prior conviction for burglary of an occupied




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residence, which constituted a crime of violence. Section 9714 provides in

relevant part:

      (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. Upon a second
            conviction for a crime of violence, the court shall give the
            person oral and written notice of the penalties under this
            section for a third conviction for a crime of violence.
            Failure to provide such notice shall not render the offender
            ineligible to be sentenced under paragraph (2).

42 Pa.C.S.A. § 9714(a)(1).

      In Alleyne, the Supreme Court of the United States established that

“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’

that must be submitted to the jury and found beyond a reasonable doubt.”

Alleyne, 133 S.Ct. at 2155. However, the Supreme Court has recognized a

narrow exception to this rule for prior convictions. Id. at 2160, n.1 (citing

Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140

L.Ed.2d 350 (1998)).     In Commonwealth v. Reid, 117 A.3d 777, 785

(Pa.Super. 2015), this Court specifically found that Section 9714 is not

rendered unconstitutional under Alleyne as it provides for mandatory

minimum sentences based on prior convictions.      Accordingly, as Appellant

was similarly sentenced to a mandatory minimum sentence under Section




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9714 for his prior conviction of a crime of violence, Appellant’s sentencing

challenge has no merit.

     For the foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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