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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN WILLIAMS
Appellant No. 1802 EDA 2014
Appeal from the Judgment of Sentence January 16, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002781-2011
BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 06, 2015
Appellant, Kevin Williams, appeals from the January 16, 2014
aggregate judgment of sentence of 35 to 70 years’ incarceration, imposed
after a jury found him guilty of murder of the third degree, conspiracy, and
three counts of robbery.1 After careful consideration, we affirm.
The trial court summarized the factual circumstances surrounding the
crimes charged as follows.
On October 20, 2010, Appellant, Kevin
Williams, invited co-defendant, Dawud Abdul-Hakim
(Abdul-Hakim), and an unidentified male to smoke
weed in his car. While sitting in Appellant’s car,
Abdul-Hakim said he wanted to try to [r]ob
somebody before he went home, and the
unidentified male wanted to do the same. Abdul-
Hakim had a .40 caliber Glock pistol on his person.
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1
18 Pa.C.S.A. §§ 2502(c), 903, and 3701(a)(1)(i), respectively.
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At approximately 11:20 PM, Appellant was driving
west on Jackson Street in the City and County of
Philadelphia when Abdul-Hakim suggested they [r]ob
three (3) men they saw walking north on Second
Street towards Jackson Street. The three (3) men
walking north on Second Street were childhood
friends Jason Moncrief (Moncrief), Andrew Lillie
(Lillie), and Decedent, Anthony DeMarco Jr.
(DeMarco). The unidentified male told Appellant to
stop the car, said he would be right back, and
instructed Appellant to stay there. Abdul-Hakim and
the unidentified male exited Appellant’s car on to the
sidewalk ahead of Moncrief, Lillie, and DeMarco, and
walked slowly so the three (3) men could catch up.
Appellant backed his car onto nearby Philip Street
where he could see Moncrief, Lillie, DeMarco, Abdul-
Hakim, and the unidentified male. Appellant kept his
car running in the middle of Philip Street and turned
off his headlights.
As the two (2) groups converged, the
unidentified male grabbed Moncrief and Abdul-Hakim
grabbed DeMarco, holding DeMarco at gunpoint. The
unidentified male and Abdul-Hakim directed
Moncrief, Lillie, and DeMarco to give up their money,
whereupon the unidentified male went into the
pockets of Moncrief and retrieved $50. DeMarco
refused to comply and was hit in the back of the
neck with the gun by Abdul-Hakim. DeMarco then
began to fight Abdul-Hakim, punching him
repeatedly and wrestling Abdul-Hakim to the ground.
During the fight Abdul-Hakim dropped the gun. The
unidentified male picked up the gun, told DeMarco to
get off of Abdul-Hakim, then fired six (6) shots at
DeMarco, hitting him four (4) times and hitting
Abdul-Hakim once (1) in the left hip. Lillie and
Moncrief subsequently ran south on Second Street,
Appellant drove west on Jackson Street, while Abdul-
Hakim and the unidentified male ran west on Jackson
Street.
DeMarco was shot one (1) time in the left
flank; one (1) time in the left hip; one (1) time in
the mid back, where the bullet fractured a vertebra,
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then passed through the thorax, esophagus, heart
and sternum, and one (1) time in the upper left
back, injuring his left lung. De[M]arco was
transported to Thomas Jefferson University Hospital,
where he was pronounced dead at 12:07 AM by Dr.
Jenoff. An autopsy was performed by Assistant
Medical Examiner Dr. Aaron Rosen, who determined
the cause of death was multiple gunshot wounds.
The manner of death was found to be homicide. At
the time of his arrest, Appellant made a detailed
statement after receiving his Miranda warnings.
Trial Court Opinion, 11/10/14, at 2-4.
Appellant was subsequently arrested and charged by criminal
complaint filed on November 13, 2010. The case proceeded to a jury trial,
consolidated with co-defendant Abdul-Hakim on October 1, 2012, which
resulted in a mistrial, as the jury was unable to reach a unanimous verdict.
Appellant and Abdul-Hakim were retried commencing November 20, 2013.
At the conclusion of the trial on November 26, 2013, the jury returned a
verdict, finding Appellant guilty of the previously mentioned crimes.2 A
sentencing hearing was held on January 16, 2014, at which the trial court
sentenced Appellant to a term of incarceration of 20 to 40 years on the
third-degree murder count, a consecutive term of incarceration of 10 to 20
years on the robbery count pertaining to victim DeMarco, and a consecutive
term of incarceration of 5 to 10 years on the conspiracy count. The trial
court imposed two concurrent terms of incarceration of 5 to 10 years on the
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2
On January 7, 2014, current counsel entered her appearance on behalf of
Appellant, replacing Appellant’s trial counsel.
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remaining robbery counts, resulting in an aggregate sentence of 35 to 70
years’ incarceration.
On January 23, 2014, Appellant filed a post-sentence motion, wherein
he challenged certain issues alleging trial counsel’s ineffectiveness, and
challenging the sufficiency of the evidence and the weight of the evidence.
Post-Sentence Motion, 1/23/14, at 1-2. Notice that the motions were denied
by operation of law was sent and docketed by the Clerk of Courts on May 27,
2014. Thereafter, Appellant filed a timely notice of appeal on June 18,
2014.3
On appeal, Appellant presents the following issues for our review.
I. Was the evidence sufficient to support
Appellant’s convictions for third-degree murder,
conspiracy to commit murder, and two counts of
robbery where the Commonwealth’s evidence failed
to establish that he entered into an agreement with
the principals to commit murder?
II. Were Appellant’s convictions supported by the
clear weight of the evidence where the
Commonwealth’s principal eyewitness to the
shooting lied to the police when he failed to identify
co-defendant Abdul-Hakim at a lineup and also
falsely claimed that eyewitness Andrew Lillie was not
impaired at the time of the shooting?
III. Did the [trial] court abuse its discretion in
sentencing Appellant to a manifestly excessive
aggregate sentence of 35 to 70 years[’] incarceration
where it failed to consider any mitigation evidence
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3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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and additionally failed to provide any statement of
the reasons for its sentence on the record?
IV. Is Appellant entitled to a new sentencing
hearing based on this Court’s determination that 42
Pa.C.S. § 9712, the mandatory-minimum statute
under which he was sentenced, is unconstitutional?
Appellant’s Brief at 5-6.
Appellant first challenges the sufficiency of the evidence underlying his
conviction on all charges. Id. at 14. Appellant notes the Commonwealth’s
theory of his culpability was as a co-conspirator with the primary
perpetrators of the robbery and shooting. Id. Appellant avers as follows.
[B]ecause there was no evidence that [Appellant]
entered into an agreement to commit murder with []
Abdul-Hakim or the second unnamed principal, his
convictions for homicide and conspiracy to commit
murder cannot stand. Further, [] because he did not
directly participate in the robbery of [] DeMarco or
his friends, and because the jury found him not
guilty of two counts of general conspiracy, there is
no competent evidence to support his conviction for
two counts of robbery.
Id.
Our review of a challenge to the sufficiency of the evidence is bound
by the following standard and scope of review. “A claim impugning the
sufficiency of the evidence presents us with a question of law.”
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)
(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).
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
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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 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 evidence actually
received must be considered. Finally, the [finder] of
fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Fabian, 60 A.3d 146, 150-151 (Pa. Super. 2013)
(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013).
However, the inferences must flow from facts and
circumstances proven in the record, and must be of
such volume and quality as to overcome the
presumption of innocence and satisfy the [finder of
fact] of an accused’s guilt beyond a reasonable
doubt. The trier of fact cannot base a conviction on
conjecture and speculation and a verdict which is
premised on suspicion will fail even under the limited
scrutiny of appellate review.
Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation
omitted), appeal denied, 101 A.3d 102 (Pa. 2014).
Instantly, however, Appellant has waived his insufficiency of the
evidence claim. The text of Rule 1925(b) requires an appellant’s concise
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statement to “identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent issues for the judge.”
Pa.R.A.P. 1925(b)(4)(ii). Any issues not raised in accordance with Rule
1925(b)(4) will be deemed waived. Id. at 1925(b)(4)(vii). “An overly
vague or broad Rule 1925 statement may result in waiver.” Majorsky v.
Douglas, 58 A.3d 1250, 1258 (Pa. Super. 2012) (citation omitted), appeal
denied, 70 A.2d 811 (Pa. 2013), cert. denied, 134 S. Ct. 910 (2014). “In
order to preserve a challenge to the sufficiency of the evidence on appeal,
an appellant’s Rule 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the evidence was
insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.
2013) (citation omitted). “Failure to properly preserve the claim will result
in waiver, even if the trial court addresses the issue in its [Rule 1925(a)]
opinion.” Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super.
2014) (citations omitted). “[T]he 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.” Commonwealth v. Hill,
16 A.3d 484, 494 (Pa. 2011).
Instantly, rather than identifying the specific elements of the particular
charges at issue in his Rule 1925(b) statement, Appellant merely makes a
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bald assertion of insufficiency as follows. “There was insufficient evidence to
support the conviction for all charges.” Appellant’s Statement of Matters
Complained of on Appeal, 7/10/14, at 1, ¶ 1. This overly broad claim fails to
comply with the requirements of Rule 1925(b). See Garland, supra.
Accordingly, we conclude Appellant has waived the issue on appeal. See
Flores, supra.4
Appellant next argues the trial court erred in denying his post-
sentence challenge to the weight of the evidence and refusing to grant a
new trial. Appellant’s Brief at 22. We are mindful of the following standard
of review we employ when addressing a challenge to the weight of evidence
on appeal.
“A motion for a new trial alleging that the verdict was against the
weight of the evidence is addressed to the discretion of the trial court.”
Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008), cert. denied,
Diggs v. Pennsylvania, 556 U.S. 1106 (2009).
An appellate court’s standard of review when
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court:
Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying
question of whether the verdict is against the
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4
Even if we were to consider Appellant’s claim, we would deem it devoid of
merit. Appellant’s confession and the ample corroborating evidence clearly
supports the jury’s conclusion that Appellant possessed the requisite intent
to conspire with his co-perpetrators in the instant crimes.
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weight of the evidence. Because the trial judge
has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the
weight of the evidence.
Commonwealth v. Best, 120 A.3d 329, 345 (Pa. Super. 2015) (citations
omitted; emphasis original).
In reviewing the entire record to determine the
propriety of a new trial, an appellate court must first
determine whether the trial judge’s reasons and
factual basis can be supported. Unless there are
facts and inferences of record that disclose a
palpable abuse of discretion, the trial judge’s reasons
should prevail. It is not the place of an appellate
court to invade the trial judge’s discretion any more
than a trial judge may invade the province of a jury,
unless both or either have palpably abused their
function.
To determine whether a trial court’s decision
constituted a palpable abuse of discretion, an
appellate court must “examine the record and assess
the weight of the evidence; not however, as the trial
judge, to determine whether the preponderance of
the evidence opposes the verdict, but rather to
determine whether the court below in so finding
plainly exceeded the limits of judicial discretion and
invaded the exclusive domain of the jury.” Where
the record adequately supports the trial court, the
trial court has acted within the limits of its judicial
discretion.
Commonwealth v. Clay, 64 A.3d 1049, 1056-1057 (Pa. 2013) (emphasis
added), quoting Commonwealth v. Brown, 648 A.2d 1177, 1190 (Pa.
1994). “[T]he weight of the evidence is exclusively for the finder of fact who
is free to believe all, part, or none of the evidence and to determine the
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credibility of the witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact.” Commonwealth v. Shaffer, 40
A.3d 1250, 1253 (Pa. Super. 2012) (citation omitted). “One of the least
assailable reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.”
Commonwealth v. Brown, 23 A.3d 544, 557-558 (Pa. Super. 2011) (en
banc) (citations and internal quotation marks omitted).
Appellant’s claim in this case centers on the supposed dishonesty of
one of the victim-witnesses and the impairment of the other at the time of
the robbery. Appellant’s Brief at 23-24.
[T]he testimony of [] Moncrief, the Commonwealth’s
principal witness, was wholly unreliable based on []
Moncrief’s failure to implicate Abdul-Hakim at a pre-
trial lineup and his false claim that eyewitness
Andrew Lillie was not under the influence at the time
of the shooting. Mr. Moncrief’s dishonesty and lack
of candor during both the police investigation of the
crime and his trial testimony so undermines
confidence in the verdicts that a new trial is required
in the interests of justice.
Id. at 22-23.
In its Rule 1925(a) opinion, the trial court carefully reviewed the
testimony and evidence received at trial as it related to Appellant’s
convictions.
In a statement to police, Appellant said he knew
Abdul-Hakim and the unidentified male intended to
commit the crime of [r]obbery, and drove the two
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men while they were looking [for] a victim. When
Abdul-Hakim and the unidentified male found specific
targets for the crime in DeMarco, Lillie, and Moncrief,
Appellant complied with the unidentified male’s
request to stop the car to allow Abdul-Hakim and the
unidentified male to exit and that Appellant wait for
them to return. In furtherance of the [c]onspiracy,
Appellant backed onto nearby Philip Street, kept his
car running and turned off his headlights to wait for
Abdul-Hakim and the unidentified male. Indeed,
Appellant did not move from that spot until DeMarco
was shot. Appellant’s statement was corroborated
by Robert Daly, who testified at trial that he saw
Appellants car with its headlights off driving in the
same direction as Abdul-Hakim and the unidentified
male. Additionally, a home security camera at Third
and Jackson Streets captured Appellant and Abdul-
Hakim both fleeing from the scene, Appellant driving
and Abdul-Hakim on foot.
Trial Court Opinion, 11/10/14, at 5-6 (citations omitted). The trial court
determined the jury’s verdict did not shock the conscience of the trial court.
Id. at 8.
Upon a thorough review of the record, we conclude that the record
amply supports the trial court’s determinations and that Appellant’s
assertions are baseless. Relative to Appellant’s attack on the credibility of
the witnesses, the trial court noted, “[t]he finder of fact is free to believe all,
part, or none of the evidence and to determine the credibility of witnesses.”
Id. at 8; see Shaffer, supra. Further, Appellant’s assertion that Moncrief
was dishonest is far from self-evident. Although previously acquainted with
Abdul-Hakim, Moncrief’s inability to identify him as a perpetrator of the
crime is perfectly consistent with the circumstances surrounding the
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robbery. It was dark, Abdul-Hakim’s face was obscured by a pulled-up
hood, and Abdul-Hakim was primarily engaged in the struggle with DeMarco.
N.T., 11/21/13, at 40-63; N.T., 11/22/13, at 3-35. Further, any
discrepancies in the witnesses’ accounts do not negate the evidence of
Appellant’s confession and the eyewitness and video evidence of him fleeing
the scene. N.T., 11/21/13, at 13-27. Consequently, we discern no abuse of
discretion by the trial court in determining the verdict was not contrary to
the weight of the evidence and in refusing to grant Appellant a new trial.
Appellant’s third allegation of error, that the trial court abused its
discretion in imposing a manifestly excessive sentence, is a challenge to the
discretionary aspects of his sentence. Appellant’s Brief at 25. We conclude
Appellant has waived this issue on appeal.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Lamonda, 52 A.3d 365, 371
(Pa. Super. 2012) (en banc) (citation omitted), appeal denied, 75 A.3d 1281
(Pa. 2013).
An appellant challenging the discretionary
aspects of [her] sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and 903; (2)
whether the issue was properly preserved at
sentencing or in a motion to reconsider and
modify sentence …; (3) whether appellant’s brief
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has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal
quotation marks and citations omitted; emphasis added).
Instantly, Appellant has failed to preserve the issue at the time of
sentencing or in a post-sentence motion. Appellant did file a post-sentence
motion, but did not include therein any challenge to his sentence.5 See
Post-Sentence Motions, 1/23/14, at 1-2. Therefore, we conclude Appellant
has waived his challenge to the discretionary aspects of sentence in this
appeal. See Moury, supra.
Appellant’s final issue is a challenge to the legality of his sentence.
Appellant claims the trial court applied the mandatory minimum sentences,
under 42 Pa.C.S.A. § 9712, to his robbery convictions. Appellant’s Brief at
32. Citing this Court’s recent decisions in Commonwealth v. Newman, 99
A.3d 86, 90 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa.
2015), and Commonwealth v. Valentine, 101 A.3d 801, 811-812 (Pa.
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5
We note, in its November 10, 2014 opinion, the trial court states that,
“Appellant filed a Petition for Reconsideration of Sentence and Post Sentence
Motions” on January 22, 2012. Trial Court Opinion, 11/10/14, at 1.
Appellant also references such filings in his appellate brief. Appellant’s Brief
at 7. Contrastingly, the Commonwealth claims that Appellant did not
challenge his sentence before the trial court. Commonwealth’s Brief at 15.
Our review of the certified record discloses that a petition for reconsideration
of sentence was not a part of Appellant’s post-sentence motions and no
other petition was, in fact, docketed or included in the record.
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Super. 2014), determining Section 9712 is unconstitutional in its entirety as
violative of the United States Supreme Court’s decision in Alleyene v.
United States, 133 S. Ct. 2151 (2013), Appellant claims he is entitled to
resentencing. Id. at 33-35. We conclude Appellant is mistaken in his
underlying premise that the trial court imposed his robbery sentences under
Section 9712.
Our review of the record discloses that no notice was given by the
Commonwealth at any time prior to sentencing of its intention to seek the
application of Section 9712’s mandatory sentence against Appellant. Such a
notice is a prerequisite to a trial court’s application of Section 9712.
§ 9712. Sentences for offenses committed with
firearms
…
(b) 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 court
shall consider any evidence presented at trial and
shall afford the Commonwealth and the defendant an
opportunity to present any necessary additional
evidence and shall determine, by a preponderance of
the evidence, if this section is applicable
42 Pa.C.S.A. § 9712(b) (emphasis added). “[R]easonable notice is required
of the Commonwealth’s intention to proceed under the section before
sentencing.” Commonwealth v. Saksek, 522 A.2d 70, 72 (Pa. Super.
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1987). Similarly, our review of the sentencing proceeding reveals that no
mention of Section 9712 or of mandatory sentences was made by the
Commonwealth, Appellant, or the trial court during sentencing. 6 Absent
application of the mandatory minimum under Section 9712, the legality of
Appellant’s sentence is not implicated. Accordingly, we conclude Appellant is
due no relief on this issue.7
To recapitulate, we conclude Appellant has waived his challenge to the
sufficiency of the evidence underlying his convictions for failure to include
the issue in his Rule 1925(b) statement with adequate specificity. Appellant
has also waived his challenge to the discretionary aspects of his sentence for
failure to raise the issue below at sentencing or in a post-sentence motion.
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6
By contrast, in the companion appeal from Appellant’s co-defendant Abdul-
Hakim, the record was clear that the Commonwealth sought application of
the Section 9712 mandatory for his robbery convictions and the same was
acknowledged during his sentencing hearing. See Commonwealth v.
Hakim-Abdul, --- A.3d ---, 1485 EDA 2014 (Pa. Super. 2015) (unpublished
memorandum).
7
As argued by the Commonwealth, even if Section 9712 was at issue in this
case, we note that the 10 to 20 year sentence on the robbery charge
connected to DeMarco would not be affected. See Commonwealth’s Brief at
18-19. We have recently held that when a trial court sentences in excess of
a mandatory minimum sentence, the legality of any mandatory minimum
statue is not at issue. Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.
Super. 2015). Further, as related to Appellant’s remaining robbery
sentences, the trial court imposed them concurrent to the rest of Appellant’s
sentence. Consequently, any relief would not alter Appellant’s aggregate
sentence and no remand would be necessary. If our decision [granting relief
on a sentencing challenge] does not alter the overall [sentencing] scheme,
there is no need for a remand.” Commonwealth v. Thur, 906 A.2d 552,
569-570 (Pa. Super. 2006), appeal denied, 949 A.2d 687 (Pa. 2008).
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Further, we discern no abuse of discretion by the trial court in denying
Appellant’s request for a new trial on the basis the verdict was against the
weight of the evidence. Finally, Appellant’s challenge to the legality of his
robbery sentences fails, because the trial court did not apply Section 9712
when sentencing Appellant.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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