J-S33024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL SHAYNE BOYD,

                            Appellant                 No. 2333 EDA 2013


            Appeal from the Judgment of Sentence of May 30, 2012
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0000814-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ.

MEMORANDUM BY OLSON, J.:                        FILED SEPTEMBER 26, 2014

       Appellant, Michael Shayne Boyd, appeals from the judgment of

sentence entered on May 30, 2012, as made final by the denial of post-

sentence motions, following his jury trial convictions for two counts of

aggravated assault, firearms not to be carried with a license, possessing an

instrument of crime (PIC), and possession with intent to deliver a controlled

substance (PWID).1 Upon careful consideration, we affirm.

       The trial court aptly summarized the facts of this case as follows:

            In the early evening hours of January 8, 2008,
         [Appellant] went to the home of Ricardo Ramos and Julian
         Trombetti, located at 112 East Nields Street, West Chester,
         Pennsylvania for the purpose of selling marijuana to Mr.
         Ramos. Mr. Ramos previously contacted [Appellant] earlier
____________________________________________


1
  18 Pa.C.S.A. §§ 2702, 6106, and 907; 35 P.S. § 780-113(a)(30),
respectively.
J-S33024-14


       that same day to set up the drug transaction. [Appellant]
       arrived at the residence alone and was carrying a black
       briefcase containing 373.5 grams of marijuana.          The
       marijuana was packaged in several, clear plastic, [Z]iplock
       bags. While at the residence, [Appellant] sold an unknown
       amount of this marijuana to Mr. Ramos.


       arrival was Julian Trombetti and another individual named
       Juan Terrero. Mr. Terrero was a friend of Mr. Ramos and Mr.
       Trombetti and had come to the residence looking to
       purchase marijuana from Mr. Ramos. Mr. Terrero had
       previously made plans to get together with his friend, Jose
       Turbi, to smoke marijuana. While Mr. Terrero was inside
       the residence he received a call from his friend, Mr. Turbi,
       who began to question him about the guy inside with the
       briefcase. Mr. Terrero informed Mr. Turbi that the briefcase
       contained a large amount of marijuana at which time Mr.
       Turbi told him he was going to rob [Appellant] of the
       briefcase. Mr. Terrero attempted to talk Mr. Turbi out of his
       plan but to no avail. Mr. Terrero left the residence after
       buying a small amount of marijuana from Mr. Ramos and
       proceeded to walk to a nearby pizza shop, known as
       Riggtown, to purchase paraphernalia for him and Mr. Turbi
       to smoke the purchased marijuana. [Appellant] remained


           While [Appellant] was still in the residence, Mr. Ramos
       took out the trash. As he approached the outdoor trashcan,
       Mr. Turbi jumped from the shadows near the trashcans in
       an apparent attempt to rob him. However, when Mr. Turbi
       realized it was Mr. Ramos and not [Appellant] he drew back
       and asked Mr. Ramos if the guy with the briefcase was still
       inside the residence. Mr. Ramos stated that he was but told
       Mr. Turbi to leave the residence and not follow through with
       the plan to rob [Appellant]. Mr. Turbi walked away and Mr.
       Ramos assumed the plan was now aborted. Mr. Ramos
       went back inside the residence but did not inform

       intentions.

           After approximately 45 minutes [Appellant] exited the
       residence, taking his briefcase of marijuana with him. Mr.
       Ramos and Mr. Trombetti went upstairs to conceal the

                                   -2-
J-S33024-14


       recently purchased marijuana.    Approximately one minute

       heard gunshots from the front of their residence. The two
       men immediately ran downstairs and opened the front door
       to observe the commotion. [Appellant] abruptly pulled his
       car to the front of the residence and yelled out the window
       to them that he had just been robbed but the person who

       [Appellant] then proceeded to speed off down Nields Street
       in his vehicle.

           Within minutes of the robbery and shooting, Mr. Turbi
       drove to the pizza shop and met up with Mr. Terrero. Mr.
       Terrero could see that Mr. Turbi was in physical pain and
       also

       he just robbed shot him.        The two men dumped the

       in Middle Alley. Middle Alley is located several blocks away
       from Nields Street and is on the way to Chester County
       Hospital. Once in the alleyway, Mr. Turbi removed his
       leather coat, which revealed a single gunshot wound to his
       upper right back.

          After the two men hid the briefcase in the trashcan, Mr.
       Terrero drove Mr. Turbi to Chester County Hospital. Several
       hours later, Mr. Turbi was flown to Temple University

       treated. Mr. Turbi survived the shooting but the bullet
       penetrate
       neck hitting the traverse process of his cervical spine and
       coming to a rest behind his jaw. To date, the bullet remains


           In the hours and weeks following the shooting,
       [Appellant] bragged to a number of his friends and
       acquaintances about the robbery and how he shot the
       robber in the back. He paid his roommate, Sienna Tinus,
       and her boyfriend to dispose of the weapon (a silver semi-
       automatic .380 handgun) which she and her boyfriend
       agreed to do. Several weeks after the shooting, [Appellant]
       got a tattoo on the upper middle portion of his back. The
       tattoo depicted [a] caliber .380 [handgun] with one bullet
       pointing up and one pointing down.       According to Ms.

                                  -3-
J-S33024-14


        Tinus[,] who testified at trial[,] the tattoo represented a
        badge of honor for shooting Mr. Turbi.

Trial Court Opinion, 12/3/2013, at 1-3.

      On appeal, Appellant presents the following issues for our review:

        1. Did the trial court err in concluding that the witness
           Victor Joiner was entitled to assert his right to remain
           silent and in precluding [A]ppellant from calling Joiner as

             testimony before the jury?

        2. Did the trial court err in prohibiting cross-examination of
           Commonwealth witness Terrero on the fact that Terrero
           was on state parole for an aggravated assault offense
           committed with a gun, and had previously been
           convicted of receiving a stolen firearm, when the defense
           theory in this case was that Terrero and Turbi conspired
           to commit an armed robbery, and that Terrero had
           possessed the gun that actually shot Mr. Turbi, and
           where Terrero had enhanced exposure in this case based
           on prior weapons offenses?

        3.
             marijuana] illegal, where it was constructed only to
             comply with an unconstitutional mandatory minimum

             and federal constitutional rights, including his Sixth
             Amendment rights, in violation of the rule announced in
             Alleyne v. United States?




and our standard of review is well settled:

        The admissibility of evidence is at the discretion of the trial
        court and only a showing of an abuse of that discretion, and
        resulting prejudice, constitutes reversible error. An abuse
        of discretion is not merely an error of judgment, but is
        rather the overriding or misapplication of the law, or the
        exercise of judgment that is manifestly unreasonable, or the

                                     -4-
J-S33024-14


          result of bias, prejudice, ill-will or partiality, as shown by
          the evidence of record.       Furthermore, if in reaching a
          conclusion the trial court over-rides or misapplies the law,
          discretion is then abused and it is the duty of the appellate
          court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013)

(internal citations and quotations omitted).

        In his first issue, Appellant argues that the trial court erred by denying

relief on his motion in limine precluding him from calling Victor Joiner to

testify because Joiner invoked his Fifth Amendment right to remain silent.

                         -21. As Appellant notes, Joiner made two statements

to police in 2008 following the crimes at issue.        Id. at 19.    In the first

statement, Joiner claimed that Juan Terrero told Joiner that Terrero

accidentally shot the victim. Id. In the other statement, Joiner told police

                                                                  Id. Counsel for

Joine

2008 about who had shot [the victim], any statement he made at trial could

                                     Id.

of incrimination because the falsity of such statements [made four years

before trial], a [m]isdemeanor false statements to police officers, was

subject to a two-                                    Id. at 21.    In a footnote,

                                                                            when

he gave two separate recorded statements to police about the subject

                  Id. at 21, n.1.


                                       -5-
J-S33024-14


         Initially, upon review, we conclude that Appellant has waived appellate

review of his opening claim.        In his Rule 1925(b) statement, Appellant



waived his right to remain silent[




Appellant relegates this contention to an undeveloped footnote wherein he

cites a single case and does not cite to the record. An appellate brief must

provide citations to the record and to any relevant supporting authority. See

Pa.R.A.P. 2119(c); Commonwealth v. Berry, 877 A.2d 479, 485 (Pa.

                           urt will not become the counsel for an appellant and



Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. Ct. 2006).

Hence, we find that Appellant waived his original contention by failing to

develop that claim on appeal.

         On appeal, Appellant presents an alternate legal theory, contending

that Joiner did not risk prosecution for making false statements to police

because the statute of limitation for that crime had already expired prior to

trial.   This Court cannot review a case upon a theory different from that

relied upon in the trial court, or raised for the first time on appeal.

Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006), citing

Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa. Super. 1987) (holding


                                       -6-
J-S33024-14


that this Court cannot review a theory of error different from the theory

presented to the trial court even if both theories support the same basic

allegation of error giving rise to the claim for relief). Moreover

statute of limitations claim was not included in his 1925(b) statement and is

waived for that reason, as well. Commonwealth v. Hill, 16 A.3d 484, 494

                                                         -settled, and firmly

establishes that: Rule 1925(b) sets out a simple bright-line rule, which

obligates an appellant to file and serve a Rule 1925(b) statement, when so

ordered; any issues not raised in a Rule 1925(b) statement will be deemed

waived; the courts lack the authority to countenance deviations from the

Rule's terms; the Rule's provisions are not subject to ad hoc exceptions or

selective enforcement; appellants and their counsel are responsible for

complying with the Rule's requirements; Rule 1925 violations may be raised

by the appellate court sua sponte, and the Rule applies notwithstanding an



      Assuming, arguendo, Appellant did not waive appellate review, there is



silent or, alternatively, that expiration of the statute of limitations defeated



issue, our scope of review is plenary, as it is with any review of questions of

      Commonwealth v. Morley, 681 A.2d 1254, 1256 (Pa. 1996).                In




                                     -7-
J-S33024-14




Amend. V.

         At the outset, we are mindful that the Fifth Amendment
         privilege against self-incrimination must be given a liberal
         construction. Even the most feeble attempt to claim a Fifth
         Amendment privilege must be recognized. [The United
         States] Supreme Court [has] stated:

             The privilege reflects a complex of our fundamental
             values and aspirations, and marks an important
             advance in the development of our liberty. It can be
             asserted in any proceeding, civil or criminal,
             administrative    or    judicial,  investigatory   or
             adjudicatory; and it protects against any disclosures
             which the witness reasonably believes could be used
             in a criminal prosecution or could lead to other
             evidence that might be so used. [The United States
             Supreme] Court has been zealous to safeguard the
             values which underlie the privilege.

Commonwealth v. Molina, 33 A.3d 51, 63-64 (Pa. Super. 2011) (internal

citations, quotations, ellipsis, and original brackets omitted) (emphasis in

original).



                                                         at 11.   Joiner gave

police two different statements about the shooting in this matter. Id. at 12-

14. Counsel argued:

         Your Honor, there are two different statements. Assuming
         that [Joiner] is compelled to testify, he is going to be
         testifying falsely in
         discussions briefly with [the Commonwealth], the word

         here, contrary to one of those two statements, certainly it
         raises the spectre of possible perjury prosecution. And, I


                                     -8-
J-S33024-14




        that the [F]ifth [A]mendment is appropriate if he wishes to
        invoke it, which he informed me he did.

Id.

Joiner in a Catch-22 situation.    If he is compelled to testify, if he says

anything contrary to either of those statements, he has subjected himself to

                                                                 Id. at 30.

      We agree.     Mindful that the Fifth Amendment is to be liberally



clear. Joiner made statements to police in 2008. Id. at 13-14. The statute

of limitations for perjury, 18 Pa.C.S.A. § 4902, and/or unsworn falsification

to authorities, 18 Pa.C.S.A. § 4904, is five years.      See 42 Pa.C.S.A. §

5552(b).   Hence, had Joiner testified at trial in April 2012, he could have

been subjected to criminal prosecution.    There is no basis for a finding of



Appellant. As such, we discern no abuse of discretion by the trial court in

allowing Joiner to exercise his constitutional right to not testify.     Thus,

Appellant has waived this issue, but it is otherwise without merit.

      In his second issue, Appellant contends that the trial court improperly

                                                in limine precluding cross-



two prior convictions for aggravated assault and receiving stolen property.

                       -26.   Both crimes involved firearms. Id. at 22.       As

                                     -9-
J-S33024-14


Appellant reco

admissible, and not the details thereof, and so excluded all reference to

            Id. at 22-

convictions involved the unlawful use of firearms was the proper subject of



exposure if he [were] actually charged and convicted of the [r]obbery and

shooting [consistent with] the defense theory of the case, and because the

fact that the prior convictions involved the unlawful use of a firearm

increased the risk that the police would conclude that he had criminal

                                                               Id. at 22.

      As previously stated, we review evidentiary rulings for an abuse of



confront a witness under the confrontation clause of the Sixth Amendment is

a question of law for which our standard of review is de novo and our scope

                         Commonwealth v. Dyarman, 33 A.3d 104, 106 (Pa.

                                               i.e., evidence which tends to

make the existence or non-existence of a material fact more or less

probable, is admissible, subject to the prejudice/probative value weighing

                                               Commonwealth v. Dillon,

925 A.2d 131, 136 (Pa. 2007), citing                                        -

examination may be employed to test a witness' story, to impeach

credibili


                                    - 10 -
J-S33024-14


Commonwealth v. Hyland, 875 A.2d 1175, 1186 (Pa. Super. 2005)



witness, evidence that the witness has been convicted of a crime, whether

by verdict or by plea of guilty or nolo contendere, must be admitted if it



to crimes committed within 10 years. Pa.R.E. 609(b).

      There is no dispute that both of Terr



assault conviction is not in the nature of crimen falsi

admissible as a crime of dishonesty or false statement. Commonwealth v.

Moore, 715 A.2d 448, 452 (Pa. Super. 1998). Receiving stolen property is

a crime of crimen falsi and admissible under Rule 609. Commonwealth v.

Treadwell

conviction, if introduced solely to impeach a defendant's credibility, should

be limited to the name, time and place and punishment received in the prior

offense, in order to minimize the potential prejudice and distraction of issues

                                                          Allen v. Kaplan, 653

A.2d 1249, 1254 (Pa. Super. 1995) (internal quotations and ellipsis

omitted), citing Commonwealth v. Jones, 108, 378 A.2d 471, 477 (Pa.

Super. 1977).

      Here, the trial court determined:

            In the present case, the fact that Mr. Terrero was
        currently on state parole and that he had a prior conviction

                                    - 11 -
J-S33024-14


       for receiving stolen property is proper impeachment
       evidence. Relevant evidence that conforms to Pa.R.E. 609
       is generally limited to the nature of the conviction, the date
       of the offense, the grading of the offense and the sentence
       imposed as a result of that offense.

           Here, Mr. Terrero[] was incarcerated on the aggravated
       assault charge until his ultimate release on parole in 2005.
       Although, he was released from custody within the last ten
       years[,] this conviction is for a crime of violence and not for
       one that involved dishonesty or false statement. Since it
       does not reflect upon the veracity of Mr. Terrero, it normally
       cannot be used to impeach his testimony. However, this
       conviction is admissible because Mr. Terrero voluntarily
       disclosed it to the jury during direct examination. However,
       the underlying predicate facts that gave rise to the
       convictions are not admissible. Specifically, the fact that
       the aggravated assault was committed with a gun and that
       Mr. Terrero had previously been convicted of receiving a
       stolen firearm is irrelevant in the instant case.           For
       example, it makes no difference whether Mr. Terrero was in
       receipt of stolen jewelry, electronics or firearms; or whether
       he used a knife, slingshot or baseball bat to commit the
       aggravated assault offense. In other words, the predicate
       facts of the convictions are not relevant to admissibility.


       case that Mr. Terrero and Mr. Turbi conspired to commit the
       armed robbery of [Appellant], and that Mr. Terrero
       possessed the gun that actually shot Mr. Turbi, the cross-
       examination of the underlying facts that gave rise to the
       conviction is still irrelevant and improper.       Although,
       evidence of interest or bias on the part of a witness is
       admissible and constitutes a proper subject for cross-
       examination, the impeachment of a witness must still
       comport with Pa.R.E. 609.

           [Appellant] failed to produce any corroborating evidence
       at trial that Mr. Terrero shot Mr. Turbi. Conversely, Mr.

       that Mr. Turbi and he conspired to rob [Appellant].
       Furthermore, Mr. Terrero denied possessing a weapon and
       shooting Mr. Turbi on January 8, 2008.


                                   - 12 -
J-S33024-14



        [Appellant] from examining whether Mr. Terrero had an
        improper interest or bias when speaking with police or while

        case that Mr. Terrero lied to the police to cover up his own
        involvement in the shooting; defense counsel could have
        elicited that information properly [through a different line of
        questioning].

                           *         *           *


        raises a myriad of potential collateral matters. Specifically,
        cross-examination of Mr. Terrero regarding the underlying
        predicate facts of his prior conviction could mislead the jury.
        Essentially, defense counsel is trying to show that Mr.
        Terrero had a propensity to commit violent crimes with a
        firearm and that he acted in conformity with this
        characteristic on January 8, 2008. Because the underlying
        factual predicate facts do not have the tendency to make a
        fact in the instant case any more or less probable than it
        would be without the evidence, [the trial court] properly
        concluded the evidence was irrelevant.

Trial Court Opinion, 12/3/2013, at 8-9 (internal record and legal citations

omitted).

    We agree. The trial court appropriately determined that Terrero

conviction for receiving stolen property was admissible to impeach the

witness, but was limited in scope to the name, time, and place of the



have been admissible but for Ter

direct examination and, again, was limited by the perimeters of Rule 609.




                                    - 13 -
J-S33024-14


or negotiations with the Commonwealth.2 However, the factual predicate for



we discern no abuse of discretion or error of law in limiting the scope of

cross-

       In his final issue presented, Appellant contends that the trial court

erred in imposing a mandatory minimum sentence pursuant to 42

Pa.C.S.A. § 9712.1 because he was convicted of PWID in conjunction with

                                                -29. He claims that Section 9712.1



enhanced sentence on the basis of a new and aggravated crime which must

be proven to the satisfaction of the fact-

Id. at 28. For this proposition, Appellant cites the United States Supreme

                         Alleyne v. United States, 133 S.Ct. 2151 (2013).



establish conclusively that [Appellant] possessed a gun while possessing

                                               Id. More specifically, he submits the

evidence suggests that he retrieved a firearm only after the briefcase of

____________________________________________


2
                                   Davis v. Alaska, 415 U.S. 308 (1974).
                                           juvenile adjudication for burglary
was entirely excluded from trial.     Here, the trial court permitted the
                                                                  -179. The
                                                                       ng on
guilt. Thus, the jury could make an informed judgment as to the weight to




                                          - 14 -
J-S33024-14


marijuana was stolen. Id. He also maintains that the trial court erred by

imposing a flat five year sentence, without setting a minimum or maximum

sentence. Id. at 26-27.

                                                      Commonwealth v.

Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc) controls. In that case:

            [..D]uring the pendency of [Watl
       United States Supreme Court decided Alleyne v. United
       States,       U.S.    , 133 S.Ct. 2151 (2013). Therein, the
       Supreme Court held that the defendant's jury trial rights
       were infringed where the federal court applied a federal
       mandatory minimum statute for brandishing a firearm
       where the fact of brandishing was not presented to the jury
       or established beyond a reasonable doubt. The Alleyne
       decision expressly overturned Harris v. United States,
       536 U.S. 545 (2002), a decision that had upheld a challenge
       to McMillan v. Pennsylvania, 477 U.S. 79 (1986),
       following Apprendi v. New Jersey, 530 U.S. 466 (2000).

           In McMillan, the defendant alleged that Pennsylvania's
       mandatory minimum statute at 42 Pa.C.S. § 9712, a closely
       analogous statute to the applicable mandatory statute
       herein, was unconstitutional because the fact that the
       defendant visibly possessed a firearm was not presented to
       the jury and established beyond a reasonable doubt.
       According to the Alleyne Court, a fact that increases the
       sentencing floor is an element of the crime. Thus, it ruled
       that facts that mandatorily increase the range of penalties
       for a defendant must be submitted to a fact-finder and
       proven beyond a reasonable doubt. The Alleyne decision,
       therefore, renders those Pennsylvania mandatory minimum
       sentencing statutes that do not pertain to prior convictions
       constitutionally infirm insofar as they permit a judge to
       automatically increase a defendant's sentence based on a
       preponderance of the evidence standard.          The court
       sentenced [a]ppellant under 42 Pa.C.S. § 9712.1, a
       mandatory minimum statute allowing a judge to increase a
       sentencing floor based on a preponderance of the evidence
       finding that the defendant or his accomplice possessed a
       gun during the commission of PWID.

                                  - 15 -
J-S33024-14



                          *         *           *

           [In Watley], the jury determined that [Watley]
       possessed the firearms in question as it found him guilty of
       two separate firearms violations. The firearms in question
       were undisputedly located within the same vehicle as the
       Ecstasy; indeed, one of the guns was found in the same
       glove compartment as the drugs. Hence, the jury did
       determine beyond a reasonable doubt the facts necessary to
       subject [Watley] to the mandatory minimum, i.e., that
       [Watley] possessed the firearms when he committed the
       PWID offense.

           Nevertheless, in Commonwealth v. Johnson, 910
       A.2d 60 (Pa. Super. 2006), and Commonwealth v.
       Kearns, 907 A.2d 649 (Pa. Super. 2006), this Court
       concluded that specific jury findings relative to the charge
       for which the defendant is being sentenced are necessary
       where Apprendi is implicated. In Johnson, the panel
       addressed a claim that the defendant's sentence of
       seventeen and one-half years to forty years for attempted
       murder was illegal where the victim was shot in the foot.
       The statutory maximum for attempted murder is twenty
       years absent a finding that the victim suffered serious
       bodily injury, in which case the maximum increases to forty
       years. The Johnson Court reasoned that any finding by the
       jury of serious bodily injury for aggravated assault could not
       be used to infer that the jury found serious bodily injury for
       the attempted murder charge.

           Similarly, the Kearns panel, in discussing a jury trial
       right claim, asserted that a conviction at one count does not
       establish an element necessary for increasing a sentence at
       another charge. In Kearns, a jury convicted the defendant
       of involuntary manslaughter and endangering the welfare of

       defendant argued that his jury trial rights were violated as it
       related to the manslaughter charge because the jury did not
       find that the victim was under twelve or that the child was
       in his care, custody or control, and he was sentenced to a
       higher maximum based on those facts.




                                   - 16 -
J-S33024-14


          The    Commonwealth      argued    that   it  presented
       uncontradicted evidence that the victim was two years old
       and was in the care, custody and control of the defendant.
       In addition, the Commonwealth maintained that the
       defendant's conviction for EWOC established that the victim
       was in his care, custody and control. The panel rejected
       those arguments, first by stating that the volume of

                                  Kearns, supra at 658. It also
       found that utilizing a jury finding on another charge for

                               id. at 659, which it viewed as
       improper. Finally, the Kearns Court asserted that the
       elements of EWOC did not align with or establish the care,
       custody and control aspect of involuntary manslaughter.
       Under the reasoning of the Johnson and Kearns panels,
       since juries may render inconsistent verdicts, it is necessary
       that the element giving rise to the sentencing increase be
       specifically found by the jury in relation to the count on
       which the defendant is being sentenced.

           However, while we allow inconsistent verdicts, that
       doctrine is used to prevent overturning convictions that are
       inconsistent with an acquittal on another charge, not to
       disregard a jury's factual findings on valid convictions. See
       Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa.
                                                   guilty verdicts on
       the basis of apparent inconsistencies as long as there is

       we accept a jury's ability to potentially exercise leniency
       does not require us to disregard, for purposes of
       sentencing, its uncontroverted determination of facts that
       subject a defendant to an increased punishment, which
       under then-existing law did not have to be alleged in the
       criminal information. Indeed, an acquittal is not considered
       a specific factual finding. Commonwealth v. Carter, 444
       Pa. 405, 282 A.2d 375, 376 (1971). More importantly,
       neither Johnson nor Kearns involved retroactivity
       concerns since Apprendi was decided well before the
       defendants' trials in those cases. Phrased differently, the
       Commonwealth in Johnson and Kearns could have simply
       followed Apprendi, whereas here, the prosecution was
       proceeding under prevailing law. A case far more analogous


                                   - 17 -
J-S33024-14


       to the one presented here is United States v. Cotton, 535
       U.S. 625 (2002).

           In Cotton, the United States Supreme Court declined to
       reverse several sentences based on an Apprendi claim that
       was raised for the first time on appeal, where Apprendi
       had not been filed at the time of sentencing. In Cotton, a
       federal grand jury returned an indictment against multiple
       defendants for conspiracy to distribute and possess[ion]
       with intent to distribute cocaine and cocaine base. The
       original indictment specified the charge as involving five or
       more kilograms of cocaine and fifty grams or more of
       cocaine base. A subsequent superseding indictment,
       however, only alleged that there was a detectable amount
       of cocaine and cocaine base. The amount of cocaine and
       cocaine base triggered an increased statutory maximum.

           A jury convicted the defendants, and the district court
       found, based on the evidence introduced at trial, that the
       increased statutory maximum was applicable. While the
       defendants' case was pending on appeal, the Supreme
       Court decided Apprendi. Thereafter, the defendants
       contended for the first time that their sentences were
       invalid because the drug quantity was not included in the
       indictment or submitted to the petit jury. A divided Fourth
       Circuit Court of Appeals vacated the sentences based on
       Apprendi, concluding that the federal plain error doctrine
       applied and that a court is without jurisdiction to impose a
       sentence for an offense not charged in an indictment. The
       High Court reversed, first finding that a defect in a federal
       indictment is not jurisdictional and opining that the evidence
       establishing the sentencing enhancement was overwhelming
       and essentially uncontroverted. The court found that no
       plain error existed and that sentencing the defendant based
       on facts not included in the indictment or presented to the
       petit jury was not improper.

           Although Pennsylvania law no longer has plain error
       review, illegal sentencing claims are one of the few
       remaining vestiges of that doctrine. Accordingly, we find
       Cotton instructive and persuasive. Contrary to the
       defendant in Johnson, who contested the facts necessary
       to increase his sentencing maximum, namely, whether
       serious bodily injury resulted from shooting the victim

                                   - 18 -
J-S33024-14


        therein in the foot, [Watley] never disputed the evidence
        that the firearms were in close proximity to the Ecstasy.
        Rather, [Watley] challenged that he was the person present
        in the vehicle who fled the scene, i.e., identity. [Watley]
        certainly was on notice that the Commonwealth sought to
        prove that he possessed two firearms and the jury was
        presented with evidence of those facts. More important, the
        jury's finding on the two firearms charges in this matter is
        directly aligned with the requirement under § 9712.1 that
        the defendant possess a gun, as opposed to the EWOC and
        involuntary manslaughter elements [at] issue in Kearns.
        Succinctly put, the jury did render a specific finding as to
        whether Appellant possessed the handguns found in the
        car; the reason it did not do so in conjunction with the
        PWID count is that the prevailing law at the time, unlike in
        Kearns and Johnson, did not require such a procedure.

            Similar to Cotton, the uncontroverted evidence in
        [Watley] established that one firearm was located in the
        same glove compartment as the drugs and another
        handgun was located on the passenger-side floor in close
        proximity to the drugs, and the jury determined beyond a
        reasonable doubt that [Watley] possessed those firearms.
        Therefore, the facts necessary to establish application
        of the mandatory minimum sentence not only were
        essentially undisputed and overwhelming, they were
        determined by the jury. Since [Watley] was convicted
        of PWID and unlawfully possessing two firearms
        relative to the same incident, the factual predicates
        for determining the mandatory minimum were proven
        to a jury beyond a reasonable doubt, and his sentence
        is not illegal.

Commonwealth v. Watley, 81 A.3d 108, 116-121 (Pa. Super. 2013) (en

banc) (footnotes omitted).

      Here, the jury convicted Appellant of both PWID and firearm offenses

arising out of the same criminal episode. As the trial court noted, and the

facts adduced at trial revealed, Appellant left the subject residence carrying

a briefcase of marijuana and within one minute after his departure, two

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eyewitnesses heard gunshots.         Immediately thereafter, the two witnesses

also heard Appellant exclaim that he had been robbed, but he had shot the

robber in the back.       Due to the rapid succession of events, the trial court

properly concluded the PWID and firearm offenses resulted from the same

occurrence.

     As such, according to Watley, the factual predicate for determining

the mandatory minimum sentence under Section 9712.1 was proven to a




Turbi; thus, Appellant         like Watley      challenged only identity while on

notice that the Commonwealth sought to prove both firearm possession and



may have been retrieved from a location separate and apart from the

marijuana.        We are satisfied under the circumstances of this case that the

jury found, beyond a reasonable doubt, that Appellant possessed a firearm

                                                                               ses of



exercise of power over a weapon, which may be proven through evidence of

a direct, physical association between the defendant and the weapon or

evidence of constructive control. Constructive control, in this setting,

an analogue to constructive possession, entails the ability to

exercise      a    conscious    dominion        and   the   intent   to   do    so


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Commonwealth v. Hanson, 82 A.3d 1023, 1036-1037 (Pa. 2013)

(emphasis added).

     Moreover, our Supreme Court has recently determined that imposition

of a flat five-year sentence for PWID is legally proper when applied with the

mandatory minimum sentence provision under 42 Pa.C.S.A. § 9712.1. The

Pennsylvania Supreme Court has opined:

        [U]nder 1 Pa.C.S. § 1933, the general provision of 42
        Pa.C.S. § 9756(b)(1), regarding minimum and maximum
        sentences, must yield to the specific sentencing provisions
        of   Section   9712.1(a)   and    Section   780 113(f)(2),
        respectively requiring a five-year mandatory minimum
        sentence and a maximum sentence of no more than five
        years for a violation of Section 780 113(a)(30). As such,
        the trial court properly imposed a flat, five-year prison
        sentence for [a] PWID conviction.

Commonwealth v. Ramos, 83 A.3d 86, 94 (Pa. 2013).             For all of the



     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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