J-S53013-16
2017 PA Super 54
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NIKKI LEA VANDYKE
Appellant No. 1882 MDA 2015
Appeal from the Judgment of Sentence September 28, 2015
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000243-2015
BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.
OPINION BY BOWES, J.: FILED MARCH 01, 2017
Nikki Lea Vandyke appeals from the judgment of sentence imposed
following her plea to one count of retail theft, graded as a felony of the third
degree by the trial court based upon her prior New York convictions.
Appellant contends that the trial court erroneously relied on the factual basis
of these prior convictions to determine their similarity to Pennsylvania’s
retail theft statute. We agree, and vacate judgment of sentence.
The facts are straightforward. On January 19, 2015, Appellant entered
a Dollar General store and took, without payment, a number of items worth
a total of fourteen dollars and fifty cents. On August 6, 2015, Appellant
agreed to plead guilty to one count of retail theft, 18 Pa.C.S. § 3929, which
states in pertinent part:
* Former Justice specially assigned to the Superior Court.
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(a) Offense defined.--A person is guilty of a retail theft if he:
(1) takes possession of, carries away, transfers or
causes to be carried away or transferred, any
merchandise displayed, held, stored or offered for
sale by any store or other retail mercantile
establishment with the intention of depriving the
merchant of the possession, use or benefit of such
merchandise without paying the full retail value
thereof;
18 Pa.C.S. § 3929(a)(1). The parties agreed that the trial court would
determine the grading of the offense, which is governed by the number of
prior offenses.
(b) Grading.--
(1) Retail theft constitutes a:
(i) Summary offense when the offense is
a first offense and the value of the
merchandise is less than $150.
(ii) Misdemeanor of the second degree
when the offense is a second offense and
the value of the merchandise is less than
$150.
(iii) Misdemeanor of the first degree
when the offense is a first or second
offense and the value of the merchandise
is $150 or more.
(iv) Felony of the third degree when the
offense is a third or subsequent offense,
regardless of the value of the
merchandise.
18 Pa.C.S. § 3929(b). Section 3929(b.1) sets forth the procedure for
determining the number of offenses:
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(b.1) Calculation of prior offenses.--For the purposes of this
section, in determining whether an offense is a first, second,
third or subsequent offense, the court shall include a conviction,
acceptance of accelerated rehabilitative disposition or other form
of preliminary disposition, occurring before the sentencing on the
present violation, for an offense under this section, an offense
substantially similar to an offense under this section or under the
prior laws of this Commonwealth or a similar offense under
the statutes of any other state or of the United States.
18 Pa.C.S. § 3929(b.1) (emphasis added).
On September 28, 2015, the parties appeared for sentencing. The
Commonwealth introduced, over Appellant’s objections, police reports from
Appellant’s two petit larceny convictions in New York.1 That statute, in its
entirety, reads: “A person is guilty of petit larceny when he steals property.”
N.Y. P.L. § 155.25. The trial court overruled the objections and reviewed
the facts in the reports, which indicated that Appellant stole items from a
grocery store and a J.C. Penney’s retail establishment. The trial court
considered the facts in determining those offenses were similar in nature to
18 Pa.C.S. § 3929 and graded the instant offense as a felony of the third
degree.
Appellant filed a timely notice of appeal and complied with the trial
court’s directive to supply a concise statement under Pa.R.A.P. 1925(b).
The court issued its opinion on April 28, 2015. The matter is now ready for
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1
Appellant did not object to the lack of a certified record and we accept for
purposes of this appeal the existence of the convictions.
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our review. Appellant raises one issue, “Whether the [c]ourt erred in
grading [Appellant]’s offense as a felony and sentencing her thereon?”
Appellant’s brief at 4.
Interpretation of § 3929(b.1) is an issue of first impression. That
section was inserted by Act No. 2013-131, S.B. No. 731, effective February
21, 2014. Since this presents a question of statutory construction, our
standard of review is de novo and the scope of our review is plenary.
Commonwealth v. Barbaro, 94 A.3d 389, 391 (Pa.Super. 2014) (citation
omitted). Interpretation of a statute “is guided by the polestar principles set
forth in the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq. which has
as its paramount tenet that ‘[t]he object of all interpretation and
construction of statutes is to ascertain and effectuate the intention of the
General Assembly.’” Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011)
(quoting 1 Pa.C.S.A. § 1921(a)).
The critical dispute is this: in determining whether Appellant’s New
York conviction for Petit Larceny is a similar offense to Pennsylvania’s retail
theft crime, was the court permitted to consider the facts underlying the
New York convictions, which were gleaned from police reports associated
with those cases?
According to Appellant, the answer is no. She cites prior decisions of
this Court involving the assessment of foreign convictions for the purposes
of determining whether out-of-state convictions are crimes of violence or
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how to calculate the effect of foreign convictions on a defendant’s prior
record score. Under Appellant’s proffered test, a court would look only to
the statutory elements of the foreign conviction to determine similarity.
Appellant maintains that since the New York statute generically captures any
property theft, the inquiry is over, as the mere existence of a petit larceny
conviction sheds no light on whether the conviction is for a retail theft.
The Commonwealth counters that the statute at issue does not require
equivalency, only similarity. The Commonwealth argues the intent of the
General Assembly, as expressed by the usage of the word similar as
opposed to equivalent, was to expand the number of offenses that would
constitute prior convictions for purposes of the § 3929(b.1) recidivist
provision. The Commonwealth concedes that the felony grading cannot
stand if an elements analysis test is applied, as its invocation of the
recidivist provision rests on the facts underlying the New York convictions.
When considering the actual facts of Appellant’s convictions, the
Commonwealth highlights that those offenses would clearly constitute a prior
retail theft if committed in Pennsylvania. Thus, the instant offense is
Appellant’s third conviction.
Appellant does not offer an analysis of the pertinent statutory
language. We note that the statute at issue herein requires the trial court to
assess whether an out-of-state conviction is similar. The cases cited by
Appellant do not interpret that word.
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We nevertheless agree with Appellant that the principles discussed are
relevant to our statutory analysis, and we begin with Appellant’s invocations
of precedent. The elements test urged by Appellant was set forth in
Commonwealth v. Bolden, 532 A.2d 1172 (Pa.Super. 1987), in which we
decided whether a Colorado conviction for attempted second-degree
burglary was properly considered equivalent to the Pennsylvania offense of
criminal attempt (burglary). We set forth the following test:
[A] sentencing court [must] carefully review the elements of the
foreign offense in terms of classification of the conduct
proscribed, its definition of the offense, and the requirements for
culpability. Accordingly, the court may want to discern whether
the crime is malum in se or malum prohibitum, or whether the
crime is inchoate or specific. If it is a specific crime, the court
may look to the subject matter sought to be protected by the
statute, e.g., protection of the person or protection of the
property. It will also be necessary to examine the definition of
the conduct or activity proscribed. In doing so, the court should
identify the requisite elements of the crime-the actus reus and
mens rea-which form the basis of liability.
Having identified these elements of the foreign offense, the court
should next turn its attention to the Pennsylvania Crimes Code
for the purpose of determining the equivalent Pennsylvania
offense. An equivalent offense is that which is substantially
identical in nature and definition [to] the out-of-state or federal
offense when compared [to the] Pennsylvania offense. The
record of the foreign conviction will be relevant also when it is
necessary to grade the offense under Pennsylvania law or when
there are aggravating circumstances.
Id. at 1175-76. The Bolden Court then compared the elements of the
Colorado offense to the Pennsylvania offense. The Court found “identity of
both nature and definition and therefore offense equivalency.” Id. at 1177.
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Having concluded the offenses were equivalent, the facts of the Colorado
offense were not discussed.
This test was adopted by the Supreme Court in Commonwealth v.
Shaw, 744 A.2d 739 (Pa. 2000). Therein, our Supreme Court was called on
to determine if Shaw’s New York drunk driving conviction was properly
considered an equivalent offense to this Commonwealth’s offense of driving
under the influence of alcohol. New York’s drunk driving statute required
only that the person’s ability “to operate such motor vehicle is impaired by
the consumption of alcohol.” Id. at 743 (quoting N.Y. Veh. & Traf. Law §
1192(1)-(3)). Shaw formally adopted the Bolden test, and determined
that the New York statute was not equivalent to Pennsylvania’s DUI offense.
It logically follows that although both Pennsylvania's DUI offense
and New York State's DWAI offense are designed to protect the
person and prohibit drunk driving, New York State's DWAI
offense protects the public from a broader range of reckless
behavior than does Pennsylvania's DUI offense. This is due to
the fact that New York State's DWAI offense casts a wider net of
criminal liability, making it criminal for individuals to drink to the
point of any impairment and then proceed to operate a motor
vehicle, while Pennsylvania's DUI offense only makes it criminal
for individuals to drink to the point of substantial impairment
and then proceed to operate a motor vehicle. Thus, there is an
appreciable difference in the elements of the in-state and out-of-
state offenses at issue, and a corresponding difference in the
conduct prohibited by the offenses which preclude a finding that
the offenses are “equivalents”.
Id. at 744–45 (2000) (emphasis in original, footnoted omitted). Shaw did
not discuss the facts of the New York offense.
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Thus, neither Shaw nor Bolden shed light on when and whether a
reviewing court may look beyond the elements of the crime to the actual
facts of the offense to determine equivalency. That issue was discussed in
Commonwealth v. Northrip, 985 A.2d 734 (Pa. 2009), in which our
Supreme Court applied Shaw/Bolden to determine if Northrip’s New York
conviction for Arson in the Third Degree, N.Y. Penal Law § 150.10, was an
equivalent offense to Arson as defined under 18 Pa.C.S. § 3301(a). The
inquiry was necessitated by 42 Pa.C.S. § 9714, which required a mandatory
minimum sentence if the defendant had previously been convicted of a crime
of violence, which was further defined to include “arson as defined in 18
Pa.C.S. § 3301(a) . . . or an equivalent crime in another jurisdiction.” Id. at
548.
In our decision, we stated that the “critical inquiry” was whether a
hypothetical scenario could be imagined that sufficed for conviction of Arson
in the Third Degree in New York yet was insufficient for an Arson conviction
under § 3301(a) in Pennsylvania. We fashioned one such scenario and
concluded the offenses were not similar. Id. at 554. The Commonwealth
argued to our Supreme Court that a court should not engage in hypothetical
scenarios and must instead look to the actual facts underlying the
conviction, which, in Northrip’s case, demonstrated that his “conduct would
be deemed culpable under both statutes, thereby making them
equivalent[.]” Id. at 741. The Northrip Court agreed that considering
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hypothetical scenarios is unwarranted, but also rejected the
Commonwealth’s fact-based approach:
Both the statute's structure and its plain language demonstrate
that for most crimes, the focus is not on the facts underlying
a conviction, but rather on the statute that triggered the
conviction. Section 9714's reach is targeted and specific. With
respect to arson, the statute sets out a singular subsection-
Section 3301(a). Section 9714 does the same with other crimes,
listing either a single type of crime or a specific subsection or
subsections of particular crimes, most of which are first-degree
felonies. . . .
Even more telling is the fact that with respect to burglary,
Section 9714 does not set out a statutory subsection at all.
Instead, it explicitly directs the sentencing court to apply a fact-
based test for determining whether the prior conviction is a
crime of violence. Section 9714 includes only one type of
burglary in its purview-one that is not set out in a specific
subsection of the burglary statute: “burglary of a structure
adapted for overnight accommodation in which at the time of the
offense any person is present.” 42 Pa.C.S. § 9714(g). See 18
Pa.C.S. § 3502 (defining burglary as the unlawful entry onto a
premises with the intent to commit a crime therein, regardless of
whether someone else is present).
This very specific and deliberate method of defining crimes of
violence in Section 9714 demonstrates the Legislature's clear
intent that with respect to all crimes except burglary, the focus
is on the crime for which the defendant was convicted, not the
factual scenario underlying that crime. Section 9714 both directs
and limits the sentencing court's inquiry. In keeping with the
statute's mandate then, we must focus on the crime of arson
and its elements, not the facts underlying Appellee's conviction.
Id. (emphasis added, footnote omitted). Thus, the Court attached
significance to the fact that only one of the enumerated crimes of violence,
burglary, specifically required a court to make a factual determination. Now-
Chief Justice Saylor authored a concurring opinion, expressing his view that
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various complexities attend the administration of an
enhancement scheme accounting for specific factual elements,
including: provision for the determination of particular facts in a
system employing general verdicts; and the involvement of
constitutional issues connected with sentencing enhancements,
such as those arising under Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In the face of
such complexities, and consistent with the application of judicial
restraint in defining the scope of criminal liability, I continue to
support the notion that “equivalent crimes” are to be evaluated
at an elemental level, absent more specific direction from the
Legislature. Accord Commonwealth v. Shaw, 560 Pa. 296,
744 A.2d 739 (2000). To the degree the General Assembly
wishes to effectuate a change, there are various models
available, which may be studied in devising a clear and coherent
statutory framework that is consistent with governing law.
Id. at 745 (Saylor, J., concurring).
Finally, we recently stated in Commonwealth v. Spenny, 128 A.3d
234 (Pa.Super. 2015), that a reviewing court may not consider police
reports in determining equivalency for purposes of calculating a defendant’s
prior record score. Spenny interpreted 204 Pa.Code § 303.8(f)(1), which
states that “An out-of-state, federal or foreign conviction or adjudication of
delinquency is scored as a conviction for the current equivalent Pennsylvania
offense.” 204 Pa.Code § 303.8. We held that identifying the Pennsylvania
equivalent offense is limited to an examination of the foreign crime’s
elements.
[W]hen determining the Pennsylvania equivalent statute for a
prior, out-of-state conviction for prior record score purposes,
courts must identify the elements of the foreign conviction and
on that basis alone, identify the Pennsylvania statute that “is
substantially identical in nature and definition” to the out-of-
state offense. Bolden, 532 A.2d at 1176. Courts are not
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tasked with ascertaining the statute under which the
defendant would have been convicted if he or she had
committed the out-of-state crime in Pennsylvania. Rather,
we must compare “the elements of the foreign offense in terms
of classification of the conduct proscribed, its definition of the
offense, and the requirements for culpability” to determine the
Pennsylvania equivalent offense. Northrip, 985 A.2d at 740
(quoting Shaw, 744 A.2d at 743).
Spenny, supra at 250 (footnote omitted, emphasis added). In reaching
this conclusion, we noted that the Legislature, post-Northrip, omitted the
language in § 9714 directing a court to consider the facts of an out-of-state
burglary offense:
Subsequent to the Northrip decision, the Legislature did act,
but in the opposite manner Justice Saylor predicted. Instead of
amending section 9714 to require courts to review the facts
underlying a prior, out-of-state conviction to determine its
Pennsylvania equivalent, the Legislature removed from section
9714 the factual determination required for a burglary
conviction, replacing it with a specific subsection of the burglary
statute. See 42 Pa.C.S.A. § 9714(g) (as amended July 5, 2012,
effective Sept. 4, 2012).
Id. at 249. We stated that “by amending section 9714(g) to remove any
factual analysis of the prior, out-of-state conviction, we presume that the
Legislature did so with the intent of adopting the Supreme Court's strict-
elements interpretation of the Bolden test.” Id. at 250.
With this backdrop in mind, we now turn to our interpretation of §
3929(b.1) and its language, “similar offense under the statutes of any other
state.” We apply the following principles.
In all matters involving statutory interpretation, we apply the
Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq., which
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directs us to ascertain and effectuate the intent of the General
Assembly. 1 Pa.C.S. § 1921(a). To accomplish that goal, we
interpret statutory language not in isolation, but with reference
to the context in which it appears. See Consulting Eng'rs
Council of Penna. v. State Architects Licensure Bd., 522 Pa.
204, 560 A.2d 1375, 1377 (1989). A statute's plain language
generally provides the best indication of legislative intent. See,
e.g., McGrory v. Dep't of Transp., 591 Pa. 56, 915 A.2d 1155,
1158 (2007); Commonwealth v. Gilmour Mfg. Co., 573 Pa.
143, 822 A.2d 676, 679 (2003); Penna. Fin. Responsibility
Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84,
87 (1995) (“Where the words of a statute are clear and free
from ambiguity the legislative intent is to be gleaned from those
very words.”). Only where the words of a statute are ambiguous
will we resort to other considerations to discern legislative intent.
1 Pa.C.S. § 1921(c)[.]
Commonwealth v. Kingston, 143 A.3d 917, 922 (Pa. 2016) (emphasis
added, some citations omitted).
Preliminarily, we note that Bolden and its related precedents do not
bind us, as the pertinent statutory language does not require equivalency or
even substantial similarity. Rather, the foreign offense must merely be
similar. That word, as an adjective modifying offense, includes all offenses
“having characteristics in common, alike in substance or essentials.”
Equivalent offenses, on the other hand, would include only those offenses
“corresponding or virtually identical esp. in effect or function.” Webster’s
Ninth New Collegiate Dictionary (1986).
We cannot ignore the fact the Legislature chose similar as opposed to
equivalent. We agree with the Commonwealth that this choice of language
clearly indicates an intent to expand the number of offenses that would
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count as a prior conviction. However, we think that expansion simply means
that the elements test itself is loosened. Under the elemental test for
equivalency announced in Bolden, we required “identity of both nature and
definition.” Bolden, supra at 1177. The similar offense test simply means
that more crimes will qualify under an elements analysis, and identity of
both nature and definition is not required. It does not mean we abandon the
elements test as the singular focus. As we stated in Spenny: “Courts are
not tasked with ascertaining the statute under which the defendant would
have been convicted if he or she had committed the out-of-state crime in
Pennsylvania.” Spenny, supra at 250. The Commonwealth, by highlighting
the facts of the New York offenses, is suggesting we must do exactly that.
We draw support for our conclusion from Northrip’s statement that
“the statute’s structure and its plain language demonstrate that for most
crimes, the focus is not on the facts underlying a conviction, but rather on
the statute that triggered the conviction.” Northrip, supra at 741. The
same is true here. Nothing in § 3929(b.1) indicates that a reviewing court is
to consider the facts underlying the convictions. In Spenny, we deemed it
significant that the Legislature amended 42 Pa.C.S. § 9714 post-Northrip.
Then-Justice Saylor’s opinion cited a Georgia statute as a possible model for
permitting a court to review the facts underlying out-of-state convictions.
Id. at 745, n.2 (Saylor, J., concurring). That statute specifically directed the
reviewing court to determine if the foreign crimes, if committed within
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Georgia, would be felonies under Georgia law. Id. The statute herein
includes no such directive. The absence of any such language indicates that
the General Assembly intended reviewing courts to cabin their analysis to
the elements of the crimes. To the extent there is an ambiguity regarding
the ability of a court to consider the facts of the out-of-state conviction, we
are mindful that all penal provisions shall be strictly construed. 1 Pa.C.S. §
1928(b)(1). This principle requires that all ambiguities must be resolved in
favor of the accused. Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa.
2015).
Thus, we hold that the trial court improperly focused on the facts of
the offenses, not the similarity of the respective statutory elements. Since
the court applied the wrong test, and an interpretation of § 3929(b.1)
presents a question of law, we shall address whether the Petit Larceny crime
is similar, under an elements test, to retail theft as defined in 18 Pa.C.S. §
3929. We conclude that it is not, and the Commonwealth does not dispute
this conclusion. “Pennsylvania’s Retail Theft and New York’s Petit Larceny
. . . are, however, similar offenses justifying further analysis of the
factual basis from the . . . convictions in New York[.]” Commonwealth’s
brief at 4 (emphasis added). The petit larceny crime encompasses all thefts
of property. New York law further defines larceny at N.Y. P.L. § 155.05 as
stealing property through, inter alia, the following methods: embezzlement,
extortion, obtaining property by false pretenses, and the issuing of a bad
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check. Property is defined to include, inter alia, personal property, money,
computer data, or anything of value provided at a charge, including gas,
water, or electricity. N.Y. P.L. § 155.00. Thus, all individuals convicted of
stealing items from a retail store have committed petit larceny, but few
persons convicted of petit larceny have committed retail theft.2 Clearly, the
statute is similar to theft, but it is not similar to retail theft. Accordingly,
we find that Petit Larceny is not similar to Retail Theft, and Appellant’s
conviction should have been graded as a summary offense.
Finally, we briefly note that Appellant’s guilty plea subjected her only
to a summary offense and a maximum of ninety days imprisonment. 18
Pa.C.S. § 106(c)(2). This maximum was increased upon the trial judge’s
determination of facts. This sentence raises the concern expressed by Then-
Justice Saylor in his Northrip concurrence regarding Apprendi v. New
Jersey, 120 S.Ct. 2348, 2362-63 (2000), wherein the United States
Supreme Court held that “Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Id. at 2362-63.
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2
A conviction for petit larceny would apply to the theft of items from a retail
establishment, but would also apply to theft of a bike from outside a home,
tools from a construction site, or any number of crimes not involving retail
thefts.
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The United States Supreme Court has expressed that there are Sixth
Amendment concerns when a sentencing judge determines facts regarding
prior convictions. The United States Supreme Court has, on several
occasions, discussed the issue in the context of the Armed Career Criminal
Act, 18 U.S.C.A. § 924, a federal statute which contains recidivist provisions
triggering a fifteen-year mandatory minimum sentence for certain federal
defendants who have three prior convictions for “violent felonies.” In
Mathis v. United States, 136 S.Ct. 2243, 2252 (2016), the High Court
stated that
This Court has held that only a jury, and not a judge, may find
facts that increase a maximum penalty, except for the simple
fact of a prior conviction. That means a judge cannot go
beyond identifying the crime of conviction to explore the
manner in which the defendant committed that offense.
He is prohibited from conducting such an inquiry himself; and so
too he is barred from making a disputed determination about
“what the defendant and state judge must have understood as
the factual basis of the prior plea” or “what the jury in a prior
trial must have accepted as the theory of the crime.” He can do
no more, consistent with the Sixth Amendment, than determine
what crime, with what elements, the defendant was convicted of.
Id. at 2252 (citations omitted). We need not discuss at length these
precedents; we simply recognize the High Court’s expression of Sixth
Amendment concerns when a court analyzes anything more than the
elements of a crime. The Statutory Construction Act states that “the
General Assembly does not intend to violate the Constitution of the United
States or of this Commonwealth.” 1 Pa.C.S. § 1922(3). This point further
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militates in favor of a construction that limits the analysis to the elements of
the foreign crime without regard to the facts of those convictions.
Accordingly, we vacate the judgment of sentence and remand for
proceedings consistent with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2017
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