Com. v. Brown, J.

Citation: Not availableDocket: 1929 EDA 2017

Court: Superior Court of Pennsylvania; July 20, 2018; Pennsylvania; State Appellate Court

Original Court Document: View Document

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Joseph Brown appeals from his conviction in the Court of Common Pleas of Philadelphia for robbery, threat of immediate serious injury, two violations of the Uniform Firearms Act, possession of an instrument of crime, and conspiracy to commit robbery. The Superior Court affirms the conviction but vacates the judgment of sentence, remanding for resentencing. 

The case stems from a May 18, 2012 incident where Hayward Peak was instructed to deliver $1,400 to Joseph Ceborollo. During this transaction, Brown approached Peak's vehicle, displayed a firearm, and demanded her possessions, including the cash. Peak later suspected Ceborollo was involved in the robbery. She identified Brown in police photos, leading to a search of his home where police recovered firearms and items belonging to Peak. 

While awaiting trial, Brown attempted to solicit another inmate to prevent Peak from testifying against him, which was recorded on prison phone lines. He was subsequently charged with additional crimes but acquitted of solicitation and conspiracy to commit murder. A jury convicted him on the other charges, and he received a sentence of 10 to 20 years for robbery and conspiracy, with four years of probation for the VUFA offenses.

In June 2017, the trial court granted Brown's Post Conviction Relief Act petition due to ineffective counsel for failing to file an appeal, reinstating his appellate rights, leading to this appeal. Brown raises several issues: the weight of the evidence, denial of his motion for acquittal, the constitutionality of his sentence, and lack of notice regarding mandatory minimum sentencing, though he waived the challenge to the weight of the evidence by not preserving it for appellate review.

A claim contesting the weight of the evidence must be raised in a motion for a new trial, either orally or in writing before sentencing, or in a post-sentence motion, as per Pa.R.Crim. P. 607(A). Failing to preserve such a claim results in waiver, as established in Commonwealth v. Sherwood and Commonwealth v. Thompson. Brown's failure to raise a weight claim at trial or in a post-sentence motion precludes review and waives the issue on appeal.

Brown also contends the trial court erred in denying his motion for judgment of acquittal regarding the conspiracy to commit murder charge. However, since the jury acquitted him of this charge, the claim is moot. Even if it were not moot, the evidence presented was sufficient for the jury to find Brown guilty of conspiracy.

Brown argues that his sentence, imposed under the mandatory minimum sentencing laws (42 Pa.C.S.A. 9712), is illegal. This type of challenge is non-waivable and involves legal questions subject to de novo review. Citing Commonwealth v. Hawkins and Commonwealth v. Valentine, the court notes that mandatory minimum statutes, when not based on prior convictions, are unconstitutional if they allow a judge to enhance a sentence based on a preponderance of evidence. The court references Commonwealth v. Newman, which declared a similar statute unconstitutional for violating the right to a jury trial, necessitating that any fact increasing a mandatory minimum sentence must be decided by a jury beyond a reasonable doubt. Consequently, since the trial court applied the unconstitutional section 9712 in Brown's case, the judgment of sentence is vacated, and the case is remanded for re-sentencing without mandatory minimums from that section. However, section 9714, which mandates a minimum ten-year sentence for repeat violent offenders, remains constitutional and applicable.

The section 9714 sentencing enhancement necessitates the Commonwealth to prove a defendant's prior conviction for a violent crime beyond a reasonable doubt, distinguishing it from section 9712 and aligning with legal precedents set by Alleyne and Valentine. In Brown's case, his illegal sentence runs concurrently with a lawful sentence under section 9714, effectively resulting in identical terms. Brown argues he lacked notice of the mandatory minimum sentencing statute prior to sentencing; however, this issue is rendered moot by the remand for resentencing. Despite the possibility of receiving the same 10 to 20-year imprisonment sentence, the court must vacate the existing sentence due to illegality, prioritizing justice over convenience. The sentencing court is responsible for determining the applicability of section 9714 based on the defendant's criminal record at sentencing. The court clarifies that requiring specific pre-sentencing notice regarding section 9714 provisions would undermine the court's role. The trial court acknowledges uncertainty about whether the Commonwealth provided Brown with pre-sentence notice regarding sections 9712 and 9714. As such, the court advises the Commonwealth to notify Brown of any future intent to pursue a sentence under section 9714, ensuring all relevant provisions are invoked, which is deemed sufficient according to section 9714(d). A recommendation is made for the Commonwealth to specify the exact provision of section 9714 intended for sentencing, though this is not mandatory. The judgment of sentence is vacated, and the case is remanded for further proceedings consistent with this memorandum, with jurisdiction relinquished.