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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLES WAYNE POU, : No. 680 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, April 2, 2014,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0002742-2013
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 28, 2015
Charles Wayne Pou appeals from the judgment of sentence entered on
April 2, 2014, in the Court of Common Pleas of Erie County. We affirm.
Following a jury trial, appellant was convicted of burglary, robbery,
criminal conspiracy, four counts of recklessly endangering another person,
possession of an instrument of crime, theft by unlawful taking, two counts of
unlawful restraint, and four counts of terroristic threats. The Commonwealth
filed a notice of intent to seek the mandatory minimum sentence and
appellant filed a pro se motion in objection.1 On February 21, 2014,
appellant began representing himself. On April 2, 2014, due to appellant’s
prior conviction for a crime of violence, the court imposed three consecutive
1
The trial court denied this pro se motion during the sentencing hearing.
(Notes of testimony, 4/2/14 at 10.)
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mandatory minimum sentences of 10 to 20 years for appellant’s convictions
of robbery, conspiracy to commit robbery, and burglary. These three
sentences were to be served consecutively to the sentence appellant was
serving at Docket Number 3261 of 1998. The court imposed no further
penalty at the remaining counts. (Notes of testimony, 4/2/14 at 16-17.)
On April 7, 2014, appellant filed a pro se post-sentence motion to
modify sentence and a pro se motion pursuant to Pa.R.Crim.P. 720 for a
new trial. (Docket #32, 33.) A supplemental post-sentence motion was
filed on April 11, 2014, seeking an arrest of judgment and the dismissal of
all charges. (Docket #35.) On April 14, 2014, appellant requested the
appointment of counsel. (Docket #36.) On April 16, 2014, the trial court
denied appellant’s post-sentence motions. Thereafter, on April 24, 2014,
appellant filed a pro se notice of appeal. (Docket #40.) On April 29, 2014,
the trial court appointed counsel for purposes of appeal. (Docket #41.)
Appellant complied with the trial court’s order to file a concise statement of
errors complained of on appeal within 21 days pursuant to Pa.R.A.P.,
Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.
The following issues have been presented on appeal:
[1.] DID THE TRIAL COURT ERR IN FAILING TO
GIVE AN ADEQUATE ALIBI INSTRUCTION TO
THE JURY?
[2.] DID THE TRIAL COURT ERR IN DENYING THE
DEFENSE THE RIGHT [TO] RECALL A WITNESS
TO THE STAND AND RECROSS THAT WITNESS
AFTER OTHER WITNESSES HAD TESTIFIED?
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[3.] DID THE TRIAL COURT ERR IN ALLOWING
PREJUDICIAL PHOTOGRAPHS INTO EVIDENCE,
WHEN THOSE PHOTOGRAPHS HAD THE
PHRASE “PENNSYLVANIA JUSTICE NETWORK”
WRITTEN ON THEM AND THUS[,] PREJUDICED
THE JURY BY SHOWING THEM THAT
[APPELLANT] HAD A CRIMINAL HISTORY?
[4.] DID THE TRIAL COURT ABUSE ITS
DISCRETION IN HANDING DOWN A SENTENCE
THAT WAS MANIFESTLY EXCESSIVE AND
CLEARLY UNREASONABLE WHEN IT
SENTENCED [APPELLANT] IN A HIGH RANGE
WITHOUT GIVING ADEQUATE REASONS?
[5.] DID THE TRIAL COURT ABUSE ITS
DISCRETION IN DENYING [APPELLANT’S]
MOTION TO OBJECT TO THE COMMONWEALTH
SEEKING THE MANDATORY MINIMUM
SENTENCE SINCE THE JURY DID NOT
SPECIFICALLY DETERMINE THAT A FIREARM
WAS USED DURING THE COMMISSION OF THE
OFFENSE?
Appellant’s brief at 2.
We note with disapproval that appellant’s brief fails to comply with the
Rules of Appellate Procedure; appellant has failed to support his first three
claims with citation to the record or proper discussion. Pa.R.A.P. 2119;
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super. 2007) (it is an
appellant’s duty to present arguments that are sufficiently developed for our
review, with pertinent discussion, references to the record, and citations to
legal authorities; this court will not act as counsel and develop arguments on
behalf of an appellant). Rather than dismiss his appeal, however, we choose
to quickly dispose of appellant’s claims on the merits.
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First, appellant claims the trial court erred by giving an inadequate
alibi instruction to the jury. This claim is waived because appellant did not
object to the trial court’s alibi instruction. (Notes of testimony, 2/12/14 at
164-165.) The trial court noted as much in its opinion. (Trial court opinion,
7/21/14 at 1.) Because appellant did not raise this claim below, it is waived.
Pa.R.A.P. 302(a).
Next, appellant claims that the trial court erred in denying his right to
recall a witness to the stand after other witnesses testified. Again, our
review of the record reveals that appellant did not object at trial. This claim
is also waived. Id. (See notes of testimony, 2/11/14 at 93.)
The third issue is whether the trial court erred in allowing “prejudicial
photographs” into evidence. Appellant argues the jury was shown a
photograph of him that was taken from the “Pennsylvania Justice Network”
which would have implied that he had previously been involved in the justice
system, which would have inflamed the jury “to the point where they would
have believed he could have been the person who committed a crime.”
(Appellant’s brief at 7.) As the trial court aptly notes, appellant did not
timely and specifically object to these photographs at trial; nor does
appellant indicate where in the record he lodged his objection. See
Pa.R.A.P. 2119. Thus, the issue is waved. Pa.R.A.P. 302(a).
The fourth issue concerns the discretionary aspects of appellant’s
sentence. (Appellant’s brief at 7.) However, appellant fails to develop his
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position in the argument section of his brief and merely presents a bald
accusation that his sentence is excessive without support. Appellant’s brief
contains no argument on this issue, boilerplate citation to case law, and no
references to the record. See Hardy, 918 A.2d at 771 (“[I]t is an
appellant’s duty to present arguments that are sufficiently developed for our
review. The brief must support the claims with pertinent discussion, with
references to the record and with citations to legal authorities.”).
Finally, appellant argues that the trial court abused its discretion when
it denied appellant’s motion to object to the Commonwealth’s mandatory
minimum sentence. Although appellant has not phrased his issue in terms
of the legality of his sentence with this court, it is apparent from the
argument he presented at the sentencing hearing and in his brief that he
seeks to challenge the legality of his sentence pursuant to the United States
Supreme Court’s decision in Alleyne v. United States, U.S. , 133
S.Ct. 2151 (2013). (See notes of testimony, 4/2/14 at 8.)
A challenge to the imposition of the mandatory minimum sentence is a
challenge to the legality of his sentence. Commonwealth v. Foster, 17
A.3d 332, 345 (Pa. 2011). “When examining legality of sentence questions,
[the] standard of review is de novo and [the] scope of review plenary.”
Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa.Super. 2011) (citation
omitted).
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While appellant avers that his mandatory minimum sentences were in
relation to his use of a firearm, the trial court clearly imposed three
ten-to-twenty-year sentences of incarceration for appellant’s robbery and
burglary convictions as a result of the second strike mandatory minimum
sentencing statute. (See appellant’s brief at 8-9; notes of testimony,
4/2/14 at 16.) Pennsylvania law provides that an offender who “is convicted
. . . 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[.]” 42 Pa.C.S.A. § 9714(a)(1).
In Alleyne, the Supreme Court held that any fact that increases the
mandatory minimum sentence for a crime is an element of the offense, and
not a sentencing factor, and must be submitted to the jury for proof beyond
a reasonable doubt. Alleyne, supra. In Almendarez-Torres v. United
States, 523 U.S. 224, 246 (1998), the Supreme Court explicitly stated, “the
fact of a prior conviction does not need to be submitted to a jury and found
beyond a reasonable doubt.” Alleyne explicitly noted that Almendarez-
Torres remains good law and is a narrow exception to the general rule.
See Alleyne, supra at 1260 n.1. The Pennsylvania Supreme Court has
determined that the Pennsylvania Constitution does not afford greater
protections. Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004). This
court has explained that:
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Prior convictions are the remaining exception to
Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Alleyne . . . , insofar as a fact-finder is not required
to determine disputed convictions beyond a
reasonable doubt to comport with the Sixth
Amendment jury trial rights. See Almendarez-
Torres [supra].
Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa.Super. 2014).
Thus, until the United States Supreme Court revisits Almendarez-
Torres or the Pennsylvania Supreme Court re-examines Aponte, appellant
is entitled to no sentencing relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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