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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JERMAINE DUPREE, : No. 1322 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, March 31, 2016,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0005104-2015
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 28, 2017
Jermaine Dupree appeals from the judgment of sentence of March 31,
2016, following his conviction of robbery, criminal conspiracy, and related
charges. We affirm.
The trial court has aptly summarized the history of this case as
follows:
On June 12, 2015, Adam Rothley, “herein
Mr. Rothley” was walking back to his home in Drexel
Hill, Delaware County, after [he] was leaving a local
sports bar. Mr. Rothley took his normal route home
along the SEPTA trolley tracks. As Mr. Rothley
approached the eastbound platform at Creek Road,
he noticed three men across the way congregated by
the westbound platform. When Mr. Rothley
approached a telephone pole with a street light on it,
on Creek Road, he heard footsteps coming from
behind him. Mr. Rothley turned around, and saw
three males running toward him with shirts wrapped
around their faces; one of the males pointed a gun
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toward Mr. Rothley. While one of the men held a
gun at him, another man rummaged through
Mr. Rothley’s pockets, taking a cell phone, cell phone
charger, cigarettes, and a lighter. After the incident,
Mr. Rothley headed home via Creek Road. When
Mr. Rothley arrived on his block, Dennison Avenue,
he immediately called the police from the cellphone
of his neighbor who was standing outside of her
home.
Within minutes of Mr. Rothley’s phone call,
Officer Marvil[Footnote 1] arrived at Dennison
Avenue.[Footnote 2] Shortly thereafter, Mr. Rothley
accompanied Officer Marvil to the Upper Darby Police
Station, where he gave a statement regarding the
incident to Detective George.[Footnote 3] While
Detective George was taking the statement,
Officer Marvil requested that Mr. Rothley accompany
him to where three suspects were apprehended to
see if an identification could be made. The officer
had Mr. Rothley climb into the back of a police issued
SUV, where Mr. Rothley made the identification by
way of peering through the front windshield.
Spotlights were pointed at the suspects during this
identification. The first individual that Mr. Rothley
identified was the Appellant, Jermaine
Dupree[Footnote 4], hereinafter “Appellant.”
Mr. Rothley’s identification was based on the clothing
that Appellant was wearing and a shirt that was
hanging on his shoulder, which Mr. Rothley asserted
was wrapped around Appellant’s face during the
robbery. Further, Mr. Rothley identified Appellant as
the man who pointed the gun in his face.
[Footnote 1] At the time of trial,
Officer Marvil had been a police officer
for eleven years and worked as [a]
patrolman for Upper Darby Township for
the [sic] a year and a half.
[Footnote 2] When he arrived at
3930 Dennison Avenue, Officer Marvil
gathered information from Mr. Rothley
about the robbery; after getting the
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location and a description of the
individuals involved, Officer Marvil
broadcasted the information over police
radio.
[Footnote 3] At the time of trial,
Detective George had been a police
officer for fifteen years, and had been
serving as a criminal investigator with
Upper Darby Township for three years.
[Footnote 4] It was later discovered that
Appellant’s real name is Sydney Mondi
Duopu. Because Appellant identified
himself to police and was subsequently
charged as “Jermaine Dupree,” he will be
referred to as Jermaine Dupree,
consistent with police paperwork and the
court docket sheets.
Officer Thomas Gallo is currently employed as
a police officer in Clifton Heights Borough and has
been so employed for the past twelve years. On
June 12, 2015, Officer Gallo was working in that
capacity when he received a radio call stating that
there was a robbery of a pedestrian in the area of
Bridge and Dennison Streets, which is adjacent to
Clifton Heights. At approximately 11:30 p.m.,
Officer Gallo observed three men fitting the
description from the radio call, in the area of
Broadway and Marple Avenues in Clifton Heights.
Subsequently, Officer Gallo stopped the three men,
asking them to provide him with their identifications.
Two of the individuals, Maxim Daniels and
Robert Kolbrenner, provided Officer Gallo with
Pennsylvania Identification.[Footnote 5] During this
encounter, Officer Gallo recovered two cells [sic]
phones, a cell phone charger and a lighter.
Additionally, the officer retrieved, what appeared to
be a black handgun from Mr. Kolbrenner’s
waistband.[Footnote 6] Later that evening, when
Mr. Rothley was back at the police station with
Detective George, he identified[] the cellphone
charger, a pack of cigarettes and the lighter, as
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being items that were taken from him in the earlier
robbery.
[Footnote 5] Maxim Daniels and
Robert Kolbrenner were arrested and
charged as co-defendants with Appellant
in this matter. On December 10, 2015,
Robert Kolbrenner entered a negotiated
guilty plea with the Commonwealth.
Maxim Daniels stood trial with Appellant
and [was] found guilty on two of the five
counts with which he was charged. The
focus of this opinion is on the Appellant.
[Footnote 6] After further investigation,
officers discovered that this was actually
a pellet gun, but that as the entire pellet
gun was painted black, including the
orange tip, that it looked almost identical
to a Colt 1911 model handgun.
Trial court opinion, 6/22/16 at 1-3 (citations to the transcript omitted;
punctuation corrected).
Appellant was arrested on June 13, 2015. A
jury trial commenced on February 22, 2016, and
concluded on February 23, 2016. The
Commonwealth proceeded on: Count 1: Robbery
Threatens Immediate Serious Bodily
Injury[Footnote 7]; Count 2: Robbery Threatens
Bodily Injury[Footnote 8]; Count 5: Possession of an
Instrument of Crime[Footnote 9]; Count 10:
Criminal Conspiracy to Robbery Threatens
Immediate Serious Bodily Injury with Maxim
Daniels[Footnote 10]; Count 11: Criminal
Conspiracy to Robbery Threatens Bodily Injury with
Maxim Daniels[Footnote 11]. The Commonwealth
presented testimony from Adam Rothley,
Officer Gallo, Officer Marvil and Detective George, all
of whom testified to the facts as outlined above.
With the admission of several exhibits and
stipulations, the Commonwealth rested.
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[Footnote 7] 18 [Pa.C.S.A.] § 3701 []
A1[ii][.]
[Footnote 8] 18 [Pa.C.S.A.] § 3701 []
A1[iv][.]
[Footnote 9] 18 [Pa.C.S.A.] § 907 [] A[.]
[Footnote 10] 18 [Pa.C.S.A.] § 903[.]
[Footnote 11] 18 [Pa.C.S.A.] § 903[.]
Appellant did not testify, but presented alibi
testimony from Michael Simbo. On direct
examination, Mr. Simbo testified that he had been a
friend of Appellant for eleven years. Mr. Simbo
further testified that on June 12, 2015, he had been
with Appellant at a mutual friend’s home, and that
they played video games and watched movies until
approximately 9:50 p.m. when Mr. Simbo needed to
go home. With the admission of several exhibits,
counsel for Appellant rested.
After deliberations, the jury found Appellant
guilty on all five counts. On March 31, 2016, this
Court sentenced Appellant as follows: Count 1:
50-100 months in SCI followed by three years[’]
consecutive probation; Count 2: merged with
Count 1 for sentencing purposes; Count 10:
36-72 months in SCI concurrent to Count 1;
Count 11:[] merged with Count 10 for sentencing
purposes; Count 5: one year probation consecutive
to Count 1.[Footnote 12]
[Footnote 12] This Court applied the
deadly weapon enhancement [(“DWE”)].
On April 28, 2016, Appellant filed a notice of
Appeal.[1] [On May 4, 2016,] [t]his Court issued a
[Pa.R.A.P.] 1925(b) request, which counsel filed on
May 25, 2016.
1
Appellant did not file post-sentence motions.
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Id. at 3-5 (citations to the transcript omitted).
Appellant has raised the following issues for this court’s review,
challenging the legality of his sentence:
[1.] When the Trial Court pronounced sentence it
was required to make a determination on
whether RRRI [(Recidivism Risk Reduction
Incentive)] was applicable. The trial court
simply stated[,] “you are not RRRI or boot
camp eligible.” This statement does not
constitute a determination, therefore the
sentence is illegal.
[2.] It was error to apply the [DWE] because the
minimum component increased without a jury
determination, implicating [Alleyne v. United
States, U.S. , 133 S.Ct. 2151 (2013)].
The sentencing guidelines minimum range
changed from 32 to 42 months to 48 to
60 months.
Appellant’s brief at 7 (citation to the sentencing transcript omitted; italics
deleted).
In his first issue on appeal, appellant claims that his sentence was
illegal because the trial court failed to adequately consider whether he was
eligible for an RRRI minimum sentence. (Appellant’s brief at 10.) Appellant
complains that the trial court simply presumed his ineligibility without
adequate deliberation or explanation. (Id. at 10-13.)
A challenge to a court’s failure to impose an RRRI
sentence implicates the legality of the sentence.
Commonwealth v. Tobin, 89 A.3d 663, 670
(Pa.Super. 2014). “It is legal error to fail to impose
a[n] RRRI minimum on an eligible offender.” Id.
Thus, as “statutory interpretation implicates a
question of law, our scope of review is plenary and
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our standard of review is de novo.”
Commonwealth v. Gerald, 47 A.3d 858, 859
(Pa.Super. 2012) (citation omitted).
Commonwealth v. Finnecy, 135 A.3d 1028, 1033 (Pa.Super. 2016),
appeal denied, 2016 WL 6093951 (Pa. Oct. 19, 2016).
The RRRI statute, which provides for a reduced RRRI minimum
sentence for certain eligible offenders, states, in relevant part, as follows:
This chapter seeks to create a program that ensures
appropriate punishment for persons who commit
crimes, encourages inmate participation in
evidence-based programs that reduce the risks of
future crime and ensures the openness and
accountability of the criminal justice process while
ensuring fairness to crime victims.
61 Pa.C.S.A. § 4502.
At the time of sentencing, the court shall make a
determination whether the defendant is an eligible
offender.
61 Pa.C.S.A. § 4505(a).
“Eligible offender.” A defendant or inmate
convicted of a criminal offense who will be
committed to the custody of the department and
who meets all of the following eligibility
requirements:
(1) Does not demonstrate a history of
present or past violent behavior.
(2) Has not been subject to a sentence the
calculation of which includes an
enhancement for the use of a deadly
weapon as defined under law or the
sentencing guidelines promulgated by
the Pennsylvania Commission on
Sentencing or the attorney for the
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Commonwealth has not demonstrated
that the defendant has been found guilty
of or was convicted of an offense
involving a deadly weapon or offense
under 18 Pa.C.S. Ch. 61 (relating to
firearms and other dangerous articles) or
the equivalent offense under the laws of
the United States or one of its territories
or possessions, another state, the
District of Columbia, the Commonwealth
of Puerto Rico or a foreign nation.
(3) Has not been found guilty of or
previously convicted of or adjudicated
delinquent for or an attempt or
conspiracy to commit a personal injury
crime as defined under section 103 of
the act of November 24, 1998 (P. L. 882,
No. 111),[Footnote 1] known as the
Crime Victims Act, except for an offense
under 18 Pa.C.S. § 2701 (relating to
simple assault) when the offense is a
misdemeanor of the third degree, or an
equivalent offense under the laws of the
United States or one of its territories or
possessions, another state, the District of
Columbia, the Commonwealth of Puerto
Rico or a foreign nation.
[Footnote 1] 18 P.S. § 11.103.
61 Pa.C.S.A. § 4503. The legislature chose “to include Section 4503(1) as a
broad, “catchall” provision designed to encompass an array of behavior not
explicitly provided for in Section 4503’s other provisions.” Commonwealth
v. Chester, 101 A.3d 56, 63 (Pa. 2014) (finding that first-degree burglary
constitutes “violent behavior” as contemplated by Section 4503(1)).
Appellant was clearly not RRRI-eligible, as he had been convicted of
robbery, a personal injury crime as defined by the Crime Victims Act, 18 P.S.
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§ 11.103. In addition, a DWE applied to appellant’s sentence, making him
ineligible under 61 Pa.C.S.A. § 4503(2). Appellant also had a juvenile
adjudication for terroristic threats, thereby demonstrating a history of past
violent behavior. (Notes of testimony, 3/31/16 at 24.) In short, appellant
was obviously statutorily ineligible for an RRRI minimum sentence, and the
trial court did not err in refusing to impose one without further deliberation.
Next, appellant argues that application of the DWE was in violation of
Alleyne, holding that any fact that, by law, increases the penalty for a crime
is required to be treated as an element of the offense, submitted to a jury,
rather than a judge, and found beyond a reasonable doubt. We disagree.
Application of the DWE to a defendant’s sentence affects the guidelines
calculation but does not increase the otherwise applicable statutory
maximum, nor does it impose a mandatory minimum sentence.
204 Pa.Code § 303.10. Appellant’s potential exposure was not increased as
a result of the DWE, and the trial court remained free to impose a sentence
outside the guidelines. The weapons enhancement provision of the
guidelines only affects a defendant’s minimum sentence, not the statutory
maximum. Therefore, Alleyne and Apprendi v. New Jersey, 530 U.S. 466
(2000), are not implicated. This court explained in Commonwealth v.
Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014) (en banc), appeal denied,
104 A.3d 1 (Pa. 2014), addressing the identical issue:
While not raised by either party, we find it necessary
to discuss our finding that Appellant’s truck is a
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deadly weapon in light of the United States Supreme
Court’s decisions in Alleyne[] and Apprendi[]. In
both cases, the Supreme Court determined that
certain sentencing factors were considered elements
of the underlying crime, and thus, to comply with the
dictates of the Sixth Amendment, must be submitted
to the jury and proven beyond a reasonable doubt
instead [of] being determined by the sentencing
judge. However, this inquiry is not relevant to our
case because of the nature of the DWE.
Alleyne and Apprendi dealt with factors
that either increased the mandatory
minimum sentence or increased the
prescribed sentencing range beyond the
statutory maximum, respectively. Our
case does not involve either situation;
instead, we are dealing with a sentencing
enhancement. If the enhancement
applies, the sentencing court is required
to raise the standard guideline range;
however, the court retains the discretion
to sentence outside the guideline range.
Therefore, neither of the situations
addressed in Alleyne and Apprendi are
implicated.
Id. at 1270 n.10.
This claim fails.2
Judgment of sentence affirmed.
2
We note that appellant does not argue that the DWE should not have
applied where he used an air-propelled pellet gun rather than a firearm
during the commission of the robbery, only that the triggering facts should
have been found by a jury beyond a reasonable doubt.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2017
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