J-S32045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DON CARVICA HOGUE :
:
Appellant : No. 1049 EDA 2017
Appeal from the Judgment of Sentence March 3, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006741-2014
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 05, 2019
Don Carvica Hogue (Appellant) appeals pro se from the judgment of
sentence imposed after a jury convicted him of aggravated assault, possession
of an instrument of crime (PIC), and recklessly endangering another person
(REAP).1 Upon review, we affirm.
The charges in this case arise from an incident that occurred on March
16, 2014, in which Appellant “viciously stabb[ed] and nearly kill[ed] a man[.]”
Trial Court Opinion, 6/28/18, at 1-2. The Commonwealth filed a criminal
information on June 13, 2014. Thereafter, Appellant filed a suppression
motion, seeking to preclude “the Commonwealth from playing the cell phone
recording” made by his adult daughter, Rashada Siojo. Omnibus Pretrial
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a), 907(a), and 2705.
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Motion, 4/25/16, at 1-3. After conducting a hearing on June 17, 2016, the
trial court denied the motion. The case proceeded to trial. On December 16,
2016, a jury convicted Appellant of the above crimes.
At sentencing on March 3, 2017, the trial court determined that
Appellant’s conviction of aggravated assault was his fifth crime of violence
under Section 9714 of the Sentencing Code. See 42 Pa.C.S.A. § 9714(a)
(mandatory minimum sentences for second and third convictions of crimes of
violence). Accordingly, the trial court imposed a sentence of life imprisonment
without parole. See 42 Pa.C.S.A. § 9714(a)(2) (“Upon conviction for a third
or subsequent crime of violence the court may, if it determines that 25 years
of total confinement is insufficient to protect the public safety, sentence the
offender to life imprisonment without parole.”). The court further sentenced
Appellant to 2½ to 5 years of imprisonment for PIC and 1 to 2 years of
imprisonment for REAP, both consecutive to the life sentence.
Appellant, who was represented by Mark Adams, Esquire, did not file a
post-sentence motion, but instead filed a pro se petition under the Post
Conviction Relief Act.2 The trial docket reflects this “filing from a represented
defendant not signed by attorney.”3 Trial Docket Entry, 3/16/17. On March
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2 42 Pa.C.S.A. §§ 9541-9546.
3 See Pa.R.Crim.P. 576(A)(4) (if a represented criminal defendant submits for
filing a written motion that has not been signed by his attorney, the clerk of
courts shall accept it for filing, and a copy of the time-stamped document shall
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20, 2017, Attorney Adams filed a timely notice of appeal together with a
motion to withdraw as counsel. On March 22, 2017, the trial court allowed
Attorney Adams to withdraw, and James Lloyd, Esquire, entered his
appearance on behalf of Appellant. On April 12, 2017, the trial court directed
Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, and following two extensions for additional time, Attorney Lloyd filed
a statement on behalf of Appellant on November 8, 2017.
Meanwhile, Appellant filed in Superior Court a pro se application to
proceed pro se on appeal. By per curiam order dated October 10, 2017, this
Court directed the trial court to conduct a Grazier4 hearing. The trial court
conducted the hearing on November 13, 2017 — subsequent to Attorney Lloyd
filing Appellant’s Rule 1925(b) statement — and thereafter granted Appellant’s
motion to proceed pro se, along with permission for Attorney Lloyd to
withdraw from representation. On December 7, 2017, Appellant filed an
untimely pro se Rule 1925(b) statement, without first obtaining leave from
the trial court to do so. The trial court issued an opinion on June 28, 2018.
On appeal, Appellant presents three multi-part issues for our review:
____________________________________________
be forwarded to the defendant’s attorney and the Commonwealth within 10
days); Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (“[T]he
proper response to any pro se pleading is to refer the pleading to counsel, and
to take no further action on the pro se pleading unless counsel forwards a
motion.”).
4 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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1. WERE APPELLANT’S FEDERAL FOURTH AND FOURTEENTH
AMENDMENT RIGHTS VIOLATED AND DID THE LOWER COURT
ERR AS A MATTER OF LAW AND/OR ABUSE DISCRETION IN
DENYING APPELLANT’S MOTION TO SUPPRESS INTERCEPTED
WIRE OR ORAL COMMUNICATION WHERE EXCEPTION NO. 17 OF
THE WIRETAP ACT IS VOID FOR VAGUENESS ON ITS FACE AND
AS-APPLIED TO APPELLANT’S CASE, AND/OR DESPITE THE SELF-
CONTRADICTORY TESTIMONY OF AN ASSISTANT DISTRICT
ATTORNEY DURING THE SUPPRESSION HEARING, AND/OR
DESPITE A SUPPRESSION RECORD REPLETE WITH EVIDENCE OF
STATE ACTION BY THE ADA IN COLLUDING WITH APPELLANT’S
[SIC] TO INTERCEPT APPELLANT’S WIRE AND ORAL
COMMUNICATION?
2. WAS IT A DENIAL OF APPELLANT’S FEDERAL SIXTH AND
FOURTEENTH AMENDMENT RIGHTS AND ARTICLE I, SECTION 9
STATE CONSTITUTIONAL RIGHT, AND WAS THE TRIAL COURT’S
SUBJECT MATTER JURISDICTION NOT LAWFULLY INVOKED TO
AUTHORIZE IT TO HEAR APPELLANT’S CASE BASED ON A FATALLY
DEFECTIVE INFORMATION WHICH FAILED TO GIVE FORMAL AND
SPECIFIC ACCUSATION OF JURISDICTIONALLY-REQUIRED
ESSENTIAL FACTUAL ELEMENTS, I.E., MISCONDUCT, “TO WIT: BY
STABBING THE VICTIM” AS MANDATED BY THE SIXTH AND
FOURTEENTH AMENDMENTS, PA.R.CRIM.P. 560(B)(5), AND
CLEARLY ESTABLISHED FEDERAL LAW, AS DETERMINED BY THE
SUPREME COURT OF THE UNITED STATES AND PA. STATE
SUPREME COURT, THEREBY ENABLING APPELLANT TO PREPARE A
DEFENSE AND PLEAD DOUBLE JEOPARDY, AND FURTHER
ENABLING THE TRIAL COURT (AND ANY SUBSEQUENT COURT) TO
REVIEW FACTS FROM THE FACE OF THE INFORMATION
SUFFICIENT TO SUPPORT A CONVICTION FOR AGGRAVATED
ASSAULT?
3. WAS APPELLANT DEPRIVED ON HIS SIXTH, TENTH, AND
FOURTEENTH AMENDMENT RIGHTS AND CONTRACT CLAUSE
RIGHTS UNDER THE FEDERAL CONSTITUTION WHERE APPELLANT
WAS NOT GIVEN NOTICE OF THE “THREE STRIKES” SENTENCING
PROVISION IN THE INFORMATION, AND/OR WHERE THE
IMPOSITION OF THE “THIRD STRIKE” LIFE SENTENCE WAS
BASED ON A STATE STATUTE COERCED AND COMPELLED BY THE
FEDERAL REGULATORY PROGRAM OF VOITIS, AND/OR WHERE 42
PA.C.S. § 9714 IS MODELED ON A DETERMINATE SENTENCING
SCHEME WHICH MAKES A 25 YEAR MAXIMUM SENTENCE THE
LEAST ONEROUS SENTENCE THAT CAN BE IMPOSED BASED ON
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THE BARE STATUTORY ELEMENTS OF A “THIRD STRIKE”
OFFENSE, AND/OR WHERE THE LIFE SENTENCE IMPOSED WAS
BASED ON OTHER SENTENCING FACTORS NOT CHARGED IN THE
INFORMATION, SUBMITTED, AND PROVEN TO A JURY BEYOND A
REASONABLE DOUBT AS REQUIRED BY THE SIXTH AND
FOURTEENTH AMENDMENTS?
Appellant’s Brief at 2.
Throughout his first issue, Appellant presents an imprecise and often
confusing argument regarding the court’s denial of his suppression motion. 5
For example, he argues that Subsection 17 of 18 Pa.C.S.A. § 5704, regarding
exceptions to the prohibition of interception and disclosure of communications,
is facially void for vagueness and ambiguity.6 Appellant’s Brief at 6-9. We
note that generally, “no person shall disclose the contents of any wire,
electronic or oral communication, or evidence derived therefrom, in any
proceeding in any court[.]” 18 Pa.C.S.A. § 5721.1. However, Section 5704
sets forth several exceptions, including Subsection 17:
It shall not be unlawful and no prior court approval shall be
required under this chapter for . . .
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5 We remind Appellant that “appellate briefs and reproduced records must
materially conform to the requirements of the Pennsylvania Rules of Appellate
Procedure,” and “[a]lthough this Court is willing to liberally construe materials
filed by a pro se litigant, pro se status confers no special benefit upon the
appellant. To the contrary, any person choosing to represent himself in a legal
proceeding must, to a reasonable extent, assume that his lack of expertise
and legal training will be his undoing.” Commonwealth v. Adams, 882 A.2d
496, 497-98 (Pa. Super. 2005) (some citations omitted).
6We recognize that a subpart of the Wiretap Act, not relevant to this appeal,
has been preempted by the Federal Wiretap Act. Commonwealth v.
Witmayer, 144 A.3d 939, 950 n.2 (Pa. Super. 2016); see also Bansal v.
Russ, 513 F.Supp.2d 264 (E.D.Pa. 2007).
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Any victim, witness or private detective licensed under the act of
August 21, 1953 (P.L. 1273, No. 361), known as the Private
Detective Act of 1953, to intercept the contents of any wire,
electronic or oral communication, if that person is under a
reasonable suspicion that the intercepted party is committing,
about to commit or has committed a crime of violence and there
is reason to believe that evidence of the crime of violence may be
obtained from the interception.
18 Pa.C.S.A. § 5704(17).
Appellant’s challenge to the validity of this subsection was not raised in
the timely, court-ordered Rule 1925(b) statement filed by Attorney Lloyd, and
the trial court did not address the issue. Although Appellant included this
issue in his subsequent pro se Rule 1925(b) statement, Appellant never asked
the court for leave to file a supplemental statement. See Pa.R.A.P.
1925(b)(2) (“Upon application of the appellant and for good cause shown, the
judge may enlarge the time period initially specified or permit an amended or
supplemental Statement to be filed.”). Thus, this claim is waived. See
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”); see also Pa.R.A.P. 302(a) (issues not raised with the lower court
are waived on appeal).
Also within his first issue, we discern the following claims: this Court
should find that the Wiretap Act’s definition of an “electronic, mechanical or
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other device” includes a telephone7; and the suppression court made improper
credibility findings in denying suppression where “someone knowledgeable of
the parameters of the Wire Tap Act advis[ed] Appellant’s daughter in the
matter.” Appellant’s Brief at 9-13. With respect to the recorded telephone
call, Appellant asserts “it is clear that ADA Nixon and Mark Gilson both
engaged in ‘state action’ . . . and it is wholly unfathomable [that] neither one
of them, especially ADA Nixon, did not tell Appellant’s daughter to get some
proof.” Id. at 13-14. No relief is due.
Appellant first asks this Court to hold that for purposes of the Wiretap
Act, the definition of an “electronic, mechanical or other device” includes a
telephone. Appellant’s Brief at 11. “Statutory interpretation is a question of
law, therefore our standard of review is de novo, and our scope of review is
plenary.” Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013). Section
5702 defines “Electronic, mechanical or other device” as follows:
Any device or apparatus, including, but not limited to, an induction
coil or a telecommunication identification interception device, that
can be used to intercept a wire, electronic or oral communication
other than:
(1) Any telephone or telegraph instrument,
equipment or facility, or any component thereof,
furnished to the subscriber or user for connection to
the facilities of such service and used in the ordinary
course of its business, or being used by a
communication common carrier in the ordinary course
of its business, or by an investigative or law
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7See 18 Pa.C.S.A. § 5702 (defining “electronic, mechanical or other device”
as used in the Wiretap Act).
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enforcement officer in the ordinary course of his
duties. . . .
18 Pa.C.S.A. § 5702 (emphasis added).
We deny Appellant’s request to find that a telephone is included in the
Wiretap Act’s definition of an “electronic, mechanical or other device.” To the
contrary, a plain reading8 of Section 5702 evidences the General Assembly’s
clear intent to purposefully exclude telephones from the definition, and our
Supreme Court has held the same. See Commonwealth v. Spence, 91 A.3d
44, 47 (Pa. 2014) (“The language of the statute states that telephones are
exempt from the definition of device.”). Therefore, Section 5702’s definition
of “electronic, mechanical or other device” excludes telephones.
Next, Appellant assails the trial court’s findings following the June 17,
2016 suppression hearing, with specific reference to the court’s credibility
findings and its determination that there was no improper state action on the
part of Assistant District Attorney Deborah Nixon and her colleague, Mark
Gilson. Appellant’s Brief at 12-14.
Our review of the denial of a suppression motion “is limited to
determining whether the factual findings are supported by the record and
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8“We will only look beyond the plain meaning of the statute when words are
unclear or ambiguous, or the plain meaning would lead to “a result that is
absurd, impossible of execution or unreasonable.” 1 Pa.C.S.[A.] § 1922(1).
Therefore, when ascertaining the meaning of a statute, if the language is clear,
we give the words their plain and ordinary meaning.” Commonwealth v.
Torres-Kuilan, 156 A.3d 1229, 1231 (Pa. Super. 2017) (some citations
omitted).
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whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Soto, 202 A.3d 80, 90 (Pa. Super. 2018) (citation
omitted). “When reviewing the denial of a suppression motion, this Court
reviews only the suppression hearing record, and not the evidence elicited at
trial.” Commonwealth v. Frein, 206 A.3d 1049, 1064 (Pa. 2019) (citation
omitted). Further:
We may consider only the evidence of the prosecution and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
record supports the findings of the suppression court, we are
bound by those facts and may reverse only if the court erred in
reaching its legal conclusions based upon the facts.
Moreover, it is within the [trial] court’s province to pass
on the credibility of witnesses and determine the weight
to be given to their testimony.
Id. “The suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003) (citation omitted).
Mindful of the foregoing, we recognize that “[t]he Fourth Amendment of
the Federal Constitution and Article I, Section 8 of the Pennsylvania
Constitution protect individuals from unreasonable searches and seizures.”
Commonwealth v. Walls, 53 A.3d 889, 892 (Pa. Super. 2012). However, it
is well-settled that the “proscriptions of the Fourth Amendment and Article I,
§ 8, do not apply to searches and seizures conducted by private individuals.”
Commonwealth v. Shaffer, --- A.3d ---, 2019 WL 2509345, *11 (Pa. 2019)
(citation omitted). “[A]t the core of the reasoning underlying this refusal to
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extend application of the exclusionary rule to private searches is the concept
of ‘state action,’ the understanding that the Fourth Amendment operates only
in the context of the relationship between the citizen and the state.” Id.
(citation omitted).
“In the absence of governmental action, the search or seizure in
question cannot give [an a]ppellant ground for a claim of violation of
constitutionally-protected interest under either the Federal or Pennsylvania
Constitutions.” Commonwealth v. Johnson, 727 A.2d 1089, 1098 (Pa.
1999) (citation omitted). “To determine whether a particular search or seizure
constituted governmental action, we must examine the purpose of the search,
the party who initiated it, and determine whether the government acquiesced
in it or ratified it.” Id. “Moreover, individual acts do not become imbued with
the character of governmental action merely because they are later relied
upon and used by the government in furtherance of their objectives.” Id.
Here, Appellant sought to suppress evidence from a telephone
conversation recorded by his adult daughter, Rashada Siojo. At the
suppression hearing, the Commonwealth presented testimony from Ms. Siojo
and Ms. Siojo’s friend and assistant district attorney, Deborah Nixon.
Appellant did not present any witnesses.
Ms. Siojo testified that on the morning after the stabbing, she spoke
with her mother by telephone. Ms. Siojo’s mother was crying and she told her
daughter that “there was some kind of altercation”; Ms. Siojo’s mother “was
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afraid” and asked Ms. Siojo to pick her up. N.T., 6/17/16, at 19, 22. Ms.
Siojo then called her friend, Ms. Nixon, “to tell her what was going on because
[Ms. Nixon was her] friend” and Ms. Siojo was worried about her mother Id.
at 19.
Later that day, while Ms. Siojo and her younger brother were driving to
get their mother, Ms. Siojo engaged in a telephone call with her mother and
Ms. Nixon, which began as a call between just Ms. Siojo and her mother. Id.
at 22. Ms. Siojo described her mother during this call as “probably not sober,”
and Ms. Siojo “heard a lot of yelling and arguing in the background . . .
between [her mother and Appellant].” Id. at 24. Ms. Siojo testified that she
added Ms. Nixon to the call because Ms. Nixon was her friend, not
because Nixon was an assistant district attorney, and she wanted to let Ms.
Nixon know where she was going because Ms. Siojo “didn’t know
what [she] was going into.” Id. at 22-23. Ms. Siojo did not speak directly
with Appellant during this call, and did not record the call.
After picking up her mother, and while driving with her mother and
younger brother in the car, Ms. Siojo had a telephone conversation with
Appellant, which was connected to the car’s Bluetooth.9 N.T., 6/17/16, at 25-
27. Ms. Siojo testified that she “borrowed” her brother’s telephone to record
the conversation because she was afraid, “didn’t know what was true and . . .
____________________________________________
9 Ms. Siojo testified that she did not remember whether Appellant called her
or she called him. N.T., 6/17/16, at 26.
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needed to be safe.” Id. at 27-28. Ms. Siojo stated that she asked Appellant
“what happened?” and “why did you do that to that man?”, and reiterated that
she was afraid for herself and her mother. Id. at 26-28. She also testified
repeatedly that no one instructed her to record the conversation, and Ms.
Nixon was “absolutely not” aware that Ms. Siojo recorded the Bluetooth call
with Appellant. Id. at 28-29, 34. Ms. Siojo also clarified that the earlier call
between her, her mother, and Ms. Nixon was not recorded. Id. at 33.
The Commonwealth called Ms. Nixon, who has been employed as an
assistant district attorney since 1992. Ms. Nixon testified that Ms. Siojo was
her friend, and on the morning of March 17, 2014, Ms. Siojo called her and
relayed that Ms. Siojo’s mother had told her that Appellant “admitted to her
that he had stabbed a man,” that Ms. Siojo was “terrified for her mother,” and
“there was a situation unfolding where there were threats of violence toward
her mother.” N.T., 6/17/16, at 53-54. During the conversation, Ms. Nixon
“calmed [Ms. Siojo] down . . . and told her I’d speak to her later.” Id. at 55.
Later that day, when Ms. Nixon was at work, she received a second
phone call from Ms. Siojo, and could hear “chaos erupting.” N.T., 6/17/16, at
56. Ms. Siojo told Ms. Nixon, “I’m on my way to my mother’s and my mother’s
in trouble”; Ms. Nixon told Ms. Siojo not to go and instead call the police. Id.
Meanwhile, Ms. Nixon could hear “chaos,” “commotion,” and “yelling and
screaming.” Id. at 55-56. Ms. Nixon heard a male and a female, but did not
know the male voice and could not “make out what’s being said.” Id. at 56,
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59, 61. Ms. Nixon then set her telephone on speaker mode so that her
colleague Mark Gilson could hear the conversation. Ms. Nixon asked Mr. Gilson
to “send the cops wherever the mother lives.” Id. at 57. Mr. Gilson used his
own telephone to call 911 and request a police dispatch to the mother’s
location. Id. at 57-58. Ms. Nixon testified that she “absolutely [did] not”
advise Ms. Siojo to “make a recording of any of this,” and she never looked at
the file for the criminal case against Appellant. Id. at 57-58. She
emphasized:
My focus was on the domestic incident with [Ms. Siojo’s] mother
and [Ms. Siojo] not getting involved with it at all. This young girl
does not need to be pulled into some mess with her father and
her mother, some violence with her father and mother.
N.T., 6/17/16, at 57-58.
During the suppression hearing, Appellant, who was represented by
Attorney Adams, presented no evidence, but claimed that he had a reasonable
expectation of privacy in the “family conversation” with Ms. Siojo’s mother,
which was heard by Ms. Siojo during the three-way call between Ms. Siojo,
her mother, and Ms. Nixon. N.T., 6/17/16, at 64-65. Appellant argued that
the exception in the Wiretap Act, as stated in Subsection 5704(17) — allowing
interception if the interceptor is under a reasonable suspicion that the
intercepted party is committing, about to commit, or has committed a crime
of violence — should be ruled unconstitutional. Id. at 65; see 18 Pa.C.S.A.
§ 5704(17).
The Commonwealth countered that Appellant’s argument was
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“specious” because the unrecorded call in which Appellant is yelling in the
background while Ms. Siojo is talking to her mother “and the daughter who
happens to merge in Deb Nixon . . . is not protected under the Wiretap Act.”
N.T., 6/17/16, at 68. The Commonwealth also argued that Ms. Siojo’s
recording of her subsequent conversation with Appellant was squarely within
the Wiretap Act exception at Section 5704(17). Id. at 66.
The trial court denied Appellant’s suppression motion, finding that the
Commonwealth’s witnesses were credible and its argument persuasive.
Appellant, on appeal, now askes “th[is] Court to find the lower court’s findings
. . . are an abuse of discretion.” Appellant’s Brief at 13. Appellant claims that
“ADA Nixon and Mark Gilson both engaged in ‘state action’”, asserting that it
is “wholly unfathomable to neither one of them, especially ADA Nixon, did not
tell the daughter to get some proof.” Id. at 14. Essentially, Appellant claims
that Ms. Siojo improperly recorded the conversation with Appellant at the
prompting of Ms. Nixon in her capacity as a district attorney. Id. This
argument lacks merit.
As discussed, Ms. Siojo testified that she did not record the conversation
between herself, her mother (in which Appellant could be heard in the
background), and Ms. Nixon. Ms. Siojo stated that she added Ms. Nixon to
the call because Ms. Nixon was a friend, and while on her way to get her
mother, Ms. Siojo was concerned for the safety of her mother and herself.
With regard to the conversation with Appellant that Ms. Siojo recorded on her
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brother’s phone from her car’s Bluetooth, Ms. Siojo likewise testified that
“nobody related to law enforcement” was “in on that call” — and she recorded
the conversation with Appellant because she “needed to be safe” and “was
afraid for me and my mother.” N.T., 6/17/16, at 27-28. Ms. Siojo testified
repeatedly that no one told her to record the conversation, and Ms. Nixon was
unaware that she was recording it. Id. at 28-29, 34. Ms. Nixon’s testimony
corroborated Ms. Siojo’s, where Ms. Nixon stated that she did not advise Ms.
Siojo to record her conversation with Appellant, was not involved in
Appellant’s criminal case, and “her whole concern [was for] Ms. Siojo and her
safety.” Id. at 57-59.
The burden of proof at a suppression hearing is on the Commonwealth
to “establish[] that the challenged evidence was not obtained in violation of
the defendant’s rights.” Pa.R.Crim.P. 581(H). “This does not, however,
excuse the defendant from meeting the burden of persuasion[.]”
Commonwealth v. Enimpah, 62 A.3d 1028, 1033 (Pa. Super. 2013).
Appellant has not persuaded us of any error, and emphasize that “it is within
the [trial] court’s province to pass on the credibility of witnesses and
determine the weight to be given to their testimony.” Frein, 206 A.3d at
1064.
Instantly, the trial court stated, “I find specifically in terms of the
findings of facts as testified to by the witnesses to be credible.” N.T., 6/17/16,
at 69. The trial court further concluded that “there was no state action
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involved through Ms. Nixon in any way, shape, or form.” Id. Upon review,
we agree. Appellant’s first issue lacks merit.
In his second issue, Appellant argues that the trial court lacked subject
matter jurisdiction and “Tenth Amendment sovereign state police power to
hear [his] case,” because the criminal information lacked sufficiency.
Appellant’s Brief at 14-15. He also claims the trial “court failed to address the
assertion that the Commonwealth’s prosecution of Appellant under the federal
mandates of the Violent Offender Incarceration and Truth In Sentencing
(VOITIS) Incentive Grant Program, 12 U.S.C. § 12101 et seq., . . . was a
violation of Appellant’s personal Tenth and Fourteenth Amendment rights.”
Id. at 14. Appellant contends that the alleged “‘cutting or stabbing’ of the
victim is an essential factual element of the [aggravated assault charge]
establishing the essential mens rea/culpability element of malice,” but the
information did not “charge any ‘acts,’ ‘facts,’ ‘conduct,’ or ‘misconduct’ to
establish malice.” Id. at 17. Appellant thus concludes that he was deprived
of his Sixth and Fourteenth Amendment rights to notice and due process.
In his third issue, Appellant argues that his rights under the United
States and Pennsylvania Constitutions were violated when he was not given
notice in the bill of information filed by the Commonwealth of its intention
of prosecuting him under the “three strikes” mandatory minimum sentencing
parameters in 42 Pa.C.S.A. § 9714(a). Appellant further asserts that Section
9714 provides for an illegal sentencing scheme in light of the United States
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Supreme Court’s holding in Apprendi v. New Jersey, 120 S. Ct. 2348 (U.S.
2000) and its progeny.
Upon review of Appellant’s second and third issues, together with the
record and prevailing legal authority, we conclude that the Honorable Ann
Marie B. Coyle, sitting as the trial court, has authored a comprehensive opinion
addressing and disposing of these issues. Accordingly, we adopt those
portions of Judge Coyle’s opinion as our own. Trial Court Opinion, 6/28/18,
at 12-15, 15-20.
We note that in addressing Appellant’s second issue, the trial court
accurately states that the Commonwealth’s information “was signed by the
District Attorney, contained a proper caption, the date of the offense, the
name of the victim, the county where the offense took place, a plain and
concise statement of the essential elements of each offense, and a proper
concluding statement.” Trial Court Opinion, 6/28/18, at 15. The trial court
thus concluded that the information was “sufficient for [Appellant] to address
the charges and prepare a defense,” and accordingly, the court had proper
subject matter jurisdiction over Appellant’s criminal prosecution. Id.; see
also Pa.R.Crim.P. 560 (Information: Filing, Contents, Function).
In addressing Appellant’s third issue, the trial court referenced the
notice requirements of 42 Pa.C.S.A. § 9714, and explained that Appellant
received notice of the Commonwealth’s intent to pursue a “three strike”
mandatory minimum sentence in its sentencing memorandum filed February
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10, 2017 — well before Appellant’s sentencing nearly a month later in March
2017. Trial Court Opinion, 6/28/18, at 18; see also 42 Pa.C.S.A. § 9714(d)
(“[R]easonable notice of the Commonwealth’s intention to proceed under this
section shall be provided after conviction and before sentencing.”).
Further, in addressing the legality of Appellant’s sentence, the trial court
accurately concludes that Appellant fails to state a viable claim for relief under
Apprendi v. New Jersey, 530 U.S. 466 (2000), Alleyne v. United States,
570 U.S. 99 (2013), and successive Pennsylvania cases. The trial court
explained:
[Appellant’s] argument also fails as Apprendi and its progeny[]
all exclude prior convictions from what is required to be submitted
to the jury when seeking to increase a sentence.
***
[T]he Superior Court has recognized that Alleyne does not
invalidate mandatory minimum sentencing statutes that pertain
to a defendant’s prior convictions. Section 9714 increases
mandatory minimum sentences based on prior convictions.
Accordingly, this section is not unconstitutional under Alleyne.”).
Trial Court Opinion, 6/28/18, at 18-19 (citing Commonwealth v. Watley, 81
A.3d 108 (Pa. Super. 2013)). See also Apprendi, supra (“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.”) (emphasis added).
In sum, Appellant’s claims do not merit relief, and we affirm the
judgment of sentence. Because we have partially adopted the trial court’s
- 18 -
J-S32045-19
opinion, we direct the parties to include it in relevant future filings.
Judgment of sentence affirmed.
Judge Shogan joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/19
- 19 -
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:>
,
J Circulated 07/12/2019 02:38 PM
)
I
,,
l,.
IN THE COURT OF:COMMON PLEAS
FIRST JUDICIAL .J)lSTRl(;T P�NNSYLV ANIA os
CRIMINAL TRIAL DIVISION·
COMMONWEALTfJ.;..OF .CP�Sl-CR�000674J-20IA
CP,;ii-CR·0000741,,0l.4 C:Offm •
PENNSYLVANIA Opu"l"'
hO 2.0-17 .fheDefendant was permitted fr, P.recccfe prose ·and Attorney
Lloyd was.permitted to formallywithdraw. OnDecember 7, 2017,, the Defendant filed a prose
Statement.of Errors· Complained' of on Appeal,
fl. .IS.SU-ES ON.APPEAL
In summary, Defendant (hereinafter "Appellant") raised the following-issues on appeal:
1. The-Court err.ed and abused its.discretionin denying Appellant's Motion to Suppress
illegallyand unconstitutionally intercepted wire and oral communications between Appellant; his
r-
wife.andhis daughter which was overheard by Assistant District A Horney [Deborah] .Nixon when
Appellant's daughter ·pur ADA Nixon on three-way calling/the Court erred ·by finding. ho. State
.acfion when the.suppression record-is replete whh eviderrce-of.state action by the ADAi-n colluding
with Appellant's -daughterto.i nterccpt AptieJ lant' s wire- ��:_1,:-br�l· communi cation without "his consen t.
2. A_J??etlant. wasdenied �.is .Sixth and Fourteenth Amendment ri,.ghb/aild. Article I,
-Seotion 9 State· Constitutional d_g_ht as the trial .court lacked subject matter jurisdiction based on
fatal It defective bills -of -inforrnatien; which failed. to give formal �ml specific j urisdictional
accusations; .the 'pill ofinformation Jacked. essential factual elements of misconduct oh its. face
thereby .rendering thebi ll.ofi nformati on insuff ci ent io support a convi ction of aggravated ass au It.
J. Appellant was deprived ·of his.Sixth, Tenth, and Fourteenth Amendment rights and
Contract Clauserights under both the United States and Pennsylvania Constitutions where Appellant
3
was not given notice of a p_os$ibl�·".threc strikes" sentence in the bil! .of inforrrtation.
A. Motion to Suppress
the· appellate court's standard of'review of a denial of a motion to suppressis-to determine
whether the record supports thetrial court's factual findings and whetherthe legal conclusions drawn
·therefrom are.free from error. Common\.vealth v. ·Mo.ye, ·836 A.Zd 973 (Pa. Super. 2003,) quoting
Commonwealth v: McClease, 750A.2d 3-20, 32J.(Pa. Super. 2000). The.scopc-ofrcview is limited;
the appellate court may considervonly the evidence of theprosecution and so much ofthe evidence
for the defense as remains uncontradictedwhen readin . the.context of the record as a whole." .Id .
.quoting Conunonwealth v. M�xon, 798 A.2.d "7.6-1, 765 (P.a. Super, 2002), Where the record supports
the findingsof the.suppression court, the appellate coon is bound by those. facts and may reverse
-only if thecourt erred in.reaching its legal conclusions based upon the: facts. Moye� supra; quoting
MGC1ease1 750 A,2d- at 32:3-24 quoting ·�n thcJnterest .ol D:M., 56.0 P�. iss, 7.4'3 . .A-24 422, 424
(.1999).
In the.Instanrcase, Appellant argued that this Court erred and abused its discretion indenyirig
his motion to suppress by finding that. there wasno State action performed by Assistant District
Atti:irii"ey Deborah Nixon, Esquire (hereinafter 'iAbA -Nixon") whenshe. allegedly, in.violation .of
the, Wiretap. AcJ, "illegally and unconstitutionally intercepted wire and onti communications"
between Appellant; his wife, and his daughter which. was overheard by ADA Nixon when
Appellant'sdaughterput ADA.Ni·xon on three-waycalling with them, According to Appellant, the
Court' erred by finding that exception number I 7 ofthe Wiretap Act applied when, as alleged by
4.
... . ····-········--·--···--·--·····-···----·-·-··-· ·--·---··-·········--·-··-----························ - .
Appellant, ADA-Nixnn. "colluded" with A"ppellani's· daughter when Appellant's daughter culled
ADA Nixon and placed . .ADANixQl1.en .a three .. way 'cal I while his· daughter '\\'!:IS 9.11: a call wiflrhe'(
mother (and ADA. Nixon overheard an·atreg�d·argumcnt:'beiween Appellant and her mother). This
argument. failedbecause iJ was 'factually and legally flawed.
The 'purpose of Pennsylvania's Wiretapping and Electtonic;Sur-.ieillance Control Act, 18
P.a . c.s. '§ 5:1QJ.,.e(seq'.)' is the protectionofprivacy, Commonwealth v. Spene.e, 63.1 A:2d 666 (Pa.
' ' '
.Su.per, 1993). · Th�: Act makes it unlawful for a· .person to intentionally int�rcept, endeavor to.
1 n tercept, or proeure any other person to fniercept .br to endeavor to in tercepr any wire, 'el ectroni c, or
oral eommunication. 1.8 Pa.C.S·.A.. §.5703{.J): However.the statute.also contains specific exceptions
to the prohibitions outlined in § 570}: In pertinentpart, ·":rt- shal I not be unlawful and no prior court.
approval shall be requiredunder this chapter for:"
(17) Any victim, witness.or private detective. licensed under the act of
August 21,_ 1953 (P .C. ·1273, No. 36.1)., known as the Private Detective Act
of l.953, to intercept the contents of any wire; electronic or oral
communication, 'if that 'person is under a, reasonable suspicion that the·
intercepted partyis committing.uboutto commit or has. cornmi neda crime-
of violence and there is .' reason to believe that
. evidence oftlie crime of '
violence may be obtained from the-interception
1_8 ?a.C:S.A. §.5.704(17).
.Relying 'on Commonwealth v.. _Deck, .9 54 A.2d '603 ,· 607 (P'a. Super:2:008.), Appellan! argued
that his daughter '(Rashada -S ioj o) ii I egally recorded th c.i r tel ephone conversat [on. withe tit his consent
and the trial. court shouldhave granted his suppression motion, His reliance on Deck however is
Inapposite. In Deck, the Superior.Courtinterpreted the Wiretap Actto preclude the admission of a
conversation between a. sexual assault victim and the. defendant, which the former had recorded
without the latter's consent. The Deck decision invo)v.ed.-no·mor.e fhan the atfirmatibnof the.trial
court's stip.presSi�n.QfJl:le.reC.()rded'titephone conversation. It 'did ·1101 Spe.dfie.�lJ.y·d'i$CU.S.S·\,\iheth�r the
sexual assault victim could testify about her conversation' v-tith the defendant.
In-Com:monwe�lfh Y- To'rres,.No. 2130 EDA'�OJ2,.'20'14,WL.J0917'6Tl (Pa,. Super, CL
June so, 20l4) C.NQN:.. ,Pft:ECEO.ENTlA� DEC IS.ION):, the Superior Court found thatthe trial court
did not-errinpermitting] J.13' ]'to testify.regardingthe contents ofa taped.conversation between [LR,
}he victirn.jmdappellant] .in contravention ofthe Wiretapping and Electronic SurveiilanceConirol
Act.Including threats against family members ..of [J.B. and 'thevictim]. Ti:)rtes at *2. The Torres
Court found that the-recording ofa conversation made without [Appellant's] consent violated the
Pennsylvania Wiretap-Act and was not admissible as evidence. '[l:8: PacC.S.A, § 5703], however
while the recording.may not have· been used, there is no bar against participants of conversations
testifying as to what they heard themselves. A statement offered against s;1 party that is the party's own
statement in either an individual .or a representative capacity, i� an Admission by Party-Opponent
and is 'an exception to the hearsay ru'l°e. _IP a. R.£.. 803(25)].
Therefore, although the.actual recording "��s nor admissible, J.H: couldstill test,i'fy as to the
threatsshe herselflieard.£Appet.Ianffmake underthe Admission-by Party-Opponent.exception
. .. ' .
to the·
hearsay rule. j. B. 's testi rnony regardingAppellan t's threats 10. the ·)1 i ctirn .and J -,H. prior to the j ncident
leading to. the- victim's death, was admissible.to prove the history and factual development of the
case; and, in Ii ght of ,tB .'s testimony abo ut the bell tings Appe llarit in fl i cted.o Ii: both women, was not
unduly prejudicial. See, e.g .. Commonwealth v,. .Antldormi, 2014 WL 255492 (Pa,Sµper:2014)
{teiteratin:g·tbat courtsare not required to.sanitize a trial to eliminate all unpleasant facts from the
jury's consideration where those facts.are relevant, and form the history'and natural development of
. forwhich
.. .andoffenses
the events . . the-. d.efendant is charged).
. Torres, supra.
. al ·j3,
.Jn.Cbmmonweal.th v . .Spence,_.625 Pa. ,&4; 87-8�,.9··1 A.3d 44., 46,(2.014), thePennsylvania
Supreme Court unanimously found that the· Pennsylvania \Vfrv.t-apping,and. Electronic Surveillance
Control Act, l � P�. C:$.A. §.§570·1 et seq., doesnot.prohibit the surreptitious interception of pri vate
communications, so long asthe interception ls accomplished using a telephone." Speci fically, the
Court concluded that telephones (whether srnartphones, mobile phones or landline phones), are
excluded from the Act's defiriiuon .of electronic, mechanical or other devices because the
Pennsylvania Wiretap Act onJy _pr9)1i.bits= the "interception" :of private communications using
electronic; mechanical. or other devices, the Court reasoned that the Act does not prohibit or
·Qtherwise limitthe interception of'privatecommurucations using telephones. Furthermore, the Court
The Wiretap Act provides for exclusion of evidence derived-from intentional
'interception .of a "wire, electronic -ot oral cornmurrication" without' _prior
approval under procedures not employed ·i·J? the. present case, 1·8: Pa . .C.S. §§:
.'5'7.'Q3, 571.l..L Th� Act defines �'io_t.e(�ep't[.io.n)" as rhe "acquisition of the.
:�bn!er:i�·: of [such] communication ihtbugh the use of any electronic,
mechanical, or'other device.vl S Pa.0.S.. § 5702. The.. definiiionof'tcieetronic,
mechanical, or- other. device" ,:in p·�nit:ie'l1·f part, is as. fol lows:
"Any device-or appararus .... that can be. used- to 'intercept a .comrnunicauon
other than ... (I) Any telephone ... or any componentthereof furnished to
·<>- In Spence, a statetrooper used an.arrestee''s mobile phone tocall Spence (the.arrestee'sdrug supplier), then
handed the phone toxhe arrestee and directed him lo activateits speaker function soIhe.troopcrcould eavesdrop OTI the.
con versation 'between Spence and the -arrestee, During· the ·con versarion Spence 111ctim i rtated himself and was arrested and
charged witli various. drug offenses. · ·
Following his �.rr.est, Spenceargued theevidence againsthim -should be suppressed because the state
trooperwhosecretly [istened in. on· hiscell phone conversation did.so i11 violation of the Pennsylvania Wiretap Act:
The Pennsylvania-Suprerne CoµJ1 however, found . thatthe way or. �Y. whom a telephone is used to record or
otherwise intercept communications is· immaterial> the Act.does no.t:prohibi.t the use. of telephones to iritercept
communications, period: ''th� languageof.the statute does not stare t.nat i!js the use to which the telephone being is
put which determines if.fr isconsldered .a device." · ·
7
the subscriber or user by a provider of wire or electronic communication
service in the ordinary course of its business .... "
18 Pa.C.S. § 5702 (emphasis supplied).
The Supreme Court's view was that the statutory exclusion of telephones from the Act's
definition of"e!ectronic, mechanical or other device[ s ]" appears intended to convey only that when
people use their telephones to communicate with others in the ordinary course of their business or
day-to-day activities, they are not at risk of violating the Act. If the legislature intended otherwise,
there would be little reason to carve out speci fie statutory exceptions for telephone marketers and
utility providers who wish to record their telephone conversations. Moreover, following Deck, the
Pennsylvania Legislature added exception 17 to the statute. See 2012 Pa. Legis. Serv. Act 2012-202
(H.B. 2400). As such, the recording Ms. Siojo made falls squarely within the exception and the 1
motion was properly denied. _J
The second portion of Appellant's argument similarly failed. According to Appellant, the
Court erred by finding no State action when the suppression record is replete with evidence of state
action by the ADA in colluding with Appellant's daughter to intercept Appellant's wire and oral
_,
communication without his consent. Despite his argument to the contrary, the record belies
Appellant's allegations of "State Action" by ADA Nixon or anyone else in law enforcement in
illegally and unconstitutionally intercepting his wire and oral communications. ADA Nixon was
never on the telephone when Appellant was on the phone with his daughter, nor did she request
Appellant's daughter to record her father's conversation.
The instant record revealed that on March 17, 2014, Rashada Siojo, Appellant's daughter,
had secretly recorded a telephone conversation via Bluetooth speaker with her father, Appellant,
8
whileshe wa:� i.11 her c�r with her mother and her brother; ADA Nixon was- not listening in on the
conversation, nor did.she instruot Ms. Siojo td record her conversation with Appejlantas evidenced
below:
BY MR, GRANT: Q. Ti1at phone call that.you are. having -- were yt>U communicating
with him on ·tbe. phone in yourhand? Was it on speaker'? Something
else? ·
A. My phonewas connected to my Bluetooth in the car..
Q. Okay. \Vhiie you were having that conversation with )'OUr dad,
what, if anything, di d you do'?
A, f borrowed my brother's phone and .Lrecorded our conversation,
Q. Okay. While you were recording that' conversation, was
anybody related to law enforcement at all in on tkat call?
-.i\. Oli; no, i1b.t at all-.
...
_Q; Okay: Ar q11y point lid anybody instructyou to make this
recording?
A..-Absolutely.not.
Q. Did a-,;ybody even know tluu you were making the recording
outside of the people in tlrat vehicle?
A.No�
* * ••
BY MR..GRANT: Q.. That· second calf that y.ou made when yau- three-wayedDeband
your mom -- at c�11y.p_of11i wasthat c/n,�4rs.dtia.n connected tothis
recording in.tmy wa.t
A .. No.
Q. Thethird time Chat you made what we'll call 'th'e relative phone
call that we talked about.today, the.one that you made to your dad,
was.Deb .lnvolvedin thutcal] in any wayf
A. Absolutely not. ·
Q. Did.Deb, toyour knowledge, know that you were making�-
that J(J"U were.having thnt.conversation[
A .. Not atall.
Q. To your knowledge, did Deb know that you were recording the
con versation.tliatwas lu!i11g lzfuUli.e 'thirdtime with your father?
9
A. No.sh« did not, .
Q·.. Okay. The call -- the second c·�l!,lhe one thatwas the three-way
call wijh Deb and )'.O.Ur. .mom -- at any point did your dad' actually
get o.� that phone or was hlsvoice just bejng ovcrheaid ·ip- the.
background?
A. Yeah, he was-overheard.. Hewasn't on the phone.
(J'. Okay. At any point \V:as:any of,'. that information recorded?
A.}fo.
Q.� At- any point didMs .. Nixon tel l.you to .record anybody or
anything? . .
A. M:,\.Nixo1i did not-ever tellme to.record anyo.ne or anything,
for the record.
Q. Did anybody ever tell you to record anyone or anything?
A.·No one.told me. to record anyoneor anything,
.(N.T.,:6ll7ll6�.·pp)3-3.4}. [emphasisadded]
.... ·*
BY l\1S-. CO.ELHQ: Q.: .NOJ..V; once you merged your mother in, these things Mr.
Adams is asking youto speculate that you overheard -- you're
overhearing .tfoit as commotion inthe background and not as a
direct communication with you.
·MR. ADAMS: Leadingquestion, Vour Honor, Objection.
Ti{� COURT.: Sustained, ·
BY MS .. CO�LHQ·: Q·. ijust waitlto be clear When you merged-your mother's call
s;
tn.siidyour fathergeton the p/1.one orwaslie Y 00 --H•-•V#o••• -•...._..,, ,,..., ,. ••-••-..-
-----········· ·····-·····--·--······"·· ······-······ _
C6mmonwea1!h .v. · Dra·mond, ·945 A.2d 252., 1.56 {.Pa.:S�iper.2008), appeal denied, 598 Pa .. 755) ·9-5.5
A.2d 356 (2008), "The defendant or the.Commonwealth .mayappealas of.right the J'ega:Jity of the .
sentence." 42 'Pa.¢."S ..A,. § 978:-1.(a). S(J? also Comirion\vtfa�th v.. Edringtonr 7:°80 A:2a. 721
(P.a,Super:20.01)
. (maintaining legaHty-·ofsen.tenc;_e. claims' cannc] be waived.where reviewing court ·
'
hasproper jurisdiction). When the legality ofa.sentence is atissue on appeal.our "standard of'review
over such questionsis denovo andour scopeof reviewis plenary." Diamond; supra al 256.lfno
statutory authorization exists for .a 'particular ·senterr��. Ihat. sentence is illegal and subject to
correction. An illegal.sentence must be.vacated. _Cotnmonwealth v. J>ombo, 26 A.3d 1155, 1157
(Pa.Super.Zfll I) quoting. Cmnmon\Vealth v. Bdwers�--25 A.3d 349, 352 (fia.Super.201 l); appeal
denied. 61 �· P.a. 666.; ·5 r A.3d 8,37 (2.0J2).
Section :9714 provides, in. pertinent part-:
§. 97l4·. Sentencesforsecond and subsequent offenses
:(�}·-Mandatory sentence.e+
* *· *
(:2). Where th� person had aJ the· time of the commission of ·the current offense
:pr.ev,·ousb: been 'eonvicted of· two 'or more such crimes .0f violence arising from
'separatecriminal transactiona.the person.shall be sentencedro.a minimumsentence
pf at l���t.25 Jear.$ of total -�qn_fin·ement;.notJiths\anding_.any other provision o.f thi's
title or other statute-lo the contrary. Proof that theoffender received notice qt' or
otherwise knew or, should have ·}qlq.wh ofthepenaliies under thisparagraphshall .not
be required, Upon conviction fora third or subsequent 'crime -of violence the court
rnay, ff il determines that 25 years of total confinement fa: insufficient. to protect the
public safety, sentencethe offender to life.imprisonment without parole.
** h
{o).Proofat sentencinge--Provlsiuns of thissection shall not bean elernerrtof the
crime .and notice thereof to the defendant stialt 1101 be required prior to
conviction, .but reasonable. notice of the. Commonwealth's intention to proceed
under thissection shall beprovided after conviction and before sentencing. The
.appHc;abil.ityqfthis_ sectionshall be determined at sentencing'. The sentencing court,
l 6°:
..•••••• ·-··-· - --· ·----···-- --·--·---·--···-·- ---. ,....,_ _ _,_. - ··-··· •• - ,. _.._.. J/V'� --,· - _ _ __,_
prior to imposing sentence.on anoffender under subsectionI a); shall have· a corn plete
record of the.pr.evi"ous.cqnvictions of the offe·�ct.er> copies-of which shall be-furnished
totheoffender, Ifthe offenderorthe attorney for the Commonwealth conteststhe
-accuracy o.fthe record, the-court shall schedule. ahearing and direct rbe.offenderano
the attorney to;:
the :Com·monwel:l.lth to. submit. evidence regarding the prevloos
convictions-of the offender.. The court shall then· determine: by. a.preponderance of
-t_be evidence, 'the previous: convictions of the offender and, if jhis .sectioc is
applicable, shall impose.. sentence in accordance \�'ith this.section.
42 .P&;C.S.A.. § 97·14{aj(2 .), (tl) _(emphasi"sadded).· Theterm "crimeofviolence" includes robbery as
definedin 18.. -P�-. C -.S .. §. 3 70l (�Kl }(i), ·oo. or (iii) (relating to robbery} · 42 Pa.C. S.A. § 9714(g).
The. p Iain language o f�ectio_n 97 l 4{<1) ind ica tes that the sen t encing court:, by rev iewing the,
defendant's.criminal record atthe time.of.sentencingdetermi nes whether the defendant issubject to
the (two or} three strikesprovision of subsection ·ca)(.2t Further, it becomes imperative thatthe facts
relied upon by the sentencing court be accurate. Commohwcaith v. Medley, 725 A.2d 1225, 1229
(Pa.. SJJper.1999}, 'appeal denied. ·5.6.l Pi,L .67�. . ·749 A,2d 4q8 (2000) quoting Commonwealth v.
Kerstetter; 580 A2'd ·11.14_; U 35. (Pa.Super.l g9·0), However; a proceeding held to determine
.sentence is -not 'a trial, and the court .i:s not bound bythe: restrictive rules of evidence properly
applicable to, trials. ·Rath.er, the court may receive anyrelevant information for 'the purposes of
Although sentencing proceedings must compor:t- with due process, the con victed defendant
need not be-accorded the entire panoply of criminal trial procedural rights. In fact, the due process.
clause should not be treated as a device forfreezlng.the evidential procedure of sentencing in the
meld of trial procedure. M.ecflev-,.supta (irtterna] citations and quotation marks omitted). See also
Commonweafth ·v.. Norris:,._8-19 A .. 2d .56-8,.574 (P.�.Super:2003). (explaining Section 9714(d) requires
court to have, written records- detailing prior convictions; Commonwealth's oral account of
defendant's prior convictions, without written records, was insufficient for purposes of Section
97 l4(d)). Commonwealth v. Smith, 866 A.2d 1138 (Pa.Super.2005), appeal denied, 583 Pa. 682,
877 A.2d 462 (2005) (holding certain documents, including Dauphin County court records, FBI rap
sheet, and National Crime Information Center rap sheet, supported finding that defendant had prior
convictions for violent crimes).
Appellant's initial argument that he was deprived of his constitutional rights because he was
not given notice of a possible "three strikes" sentence in the bill of information fails as the statute
clearly and unequivocally states that failure to provide notice shall not render the offender ineligible
to be sentenced under paragraph (2). See 42 Pa.C.S. § 9714 (a). Moreover, as required by statute,
the Commonwealth provided notice of their intent to seek a mandatory sentence under section 9714
in their February l 0, 2017 Sentencing Memorandum to Appellant and this Court, prior to sentencing
on March 2, 2017.
Finally, Appellant contends that the mandatory life sentence imposed on him is illegal in light
of Apprendi [v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435
(2000)) line of cases. This argument also fails as Apprendi and its progeny, all exclude prior
convictions from what is required to be submitted to the jury when seeking to increase a sentence.
In Apprendi, supra., 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. [emphasis added]
With that exception, the Court endorse the statement of the rule set forth in the concurring opinions
in that case: "[I)t is unconstitutional for a legislature to remove from the jury the assessment of facts
that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally
18
clear that such facts must be established by proof beyond a reasonable doubt." 526 U.S., at 252-253,
119S.Ct.1215(opinionofSTEVENS,J.);seealsoid.. at 253, I 19S.Ct. 1215(opinionofSCALIA,
J.). Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435
(2000).
The Appellate Courts have continuously held that prior convictions are not facts that need to
be submitted to a jury and proven beyond reasonable doubt in sentencing. See Alleyne v. United
States, 133 S.Ct. 2151, 2160 n. l (2013). See also, Commonwealth v. Reid, 117 A.3d 777 (Pa. Super.
2015). In Alleyne, the Supreme Court of the United States held that the Sixth Amendment requires
that any fact--other than a prior conviction-that increases a mandatory minimum sentence for an
offense must be submitted co the jury and proven beyond a reasonable doubt. Importantly, Alleyne
did not overturn prior precedent that prior convictions are sentencing factors and not clements of
offenses. Alleyne, 133 S.Ct. at 2160 n. I; see also Alemendarcz-Torrcs v. United States, 523 U.S.
224, 243-44, 118 S.Ct. 1219, 1230-31, 140 L.Ed.2d 350 (1998). Additionally, the Superior Court
has recognized that Alleyne does not invalidate mandatory minimum sentencing statutes that pertain
to a defendant's prior convictions. See Commonwealth v. Watlev, 81 J\.3d I 08, 117 (Pa. Super.
2013). Section 9714 increases mandatory minimum sentences based on prior convictions. See 42
Pa.C.S. § 9714(a)(I). Accordingly, this section is not unconstitutional under Alleyne. See Alleyne.
supra; see also Commonwealth v. Akbar, 91 A.Jd 227, 239 n. 9 (Pa. Super. 2014), appeal granted
and order vacated on other grounds, - Pa. --, 111 A .3d 168 (20 I 5).
In sum, Appellant's arguments failed to demonstrate that he is serving an illegal sentence.
19
IV. CONCLUSION
In summary, this Court has carefully reviewed the entire record and found no harmful,
prejudicial, or reversible error and nothing "to justify thegranting ofAppella[i(�·.rcq_u�s.t for relief in
this case, For the reasons ,sef forth above, . Appellant's j udgrnent of sentenceshould be affirmed,
20
.. . .. .. .. .. . .. _ ·- ···-·-·····------· -·--··-----·---··-- ····--- ···----·· ····�-·----- ..