Opinion
J-A35032-15 No. 44 WDA 2015
01-27-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. SHAQUILLE WEST, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 18, 2014 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0004300-2014 BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Shaquille West ("West") appeals from the judgment of sentence entered following his conviction of robbery-serious bodily injury, intimidation of a witness/victim-refrain from report ("witness intimidation") and criminal conspiracy (robbery-serious bodily injury). We affirm.
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 4252(a)(1), 903(c).
The trial court summarized the history underlying the instant appeal as follows:
On January 13, 2014, Keyshawn Alford ["Keyshawn"], an eleventh grader at Westinghouse High School, was trying to walk home from school with his good friend and fellow football player[,] Jamier Lane ["Jamier"]. As the two (2) young men exited the front door of the school, Jamier noticed a suspicious group of four (4) young men standing across the street. The group caught his attention because they were not dressed in school uniforms and did not look like they belonged in the area. The group's presence made Jamier nervous, and he told Keyshawn that they should wait a few minutes to see if the
group would leave. The two (2) young men waited for the group to walk down Murtland Avenue and up Hermitage [S]treet before they started walking quickly down the same route. Although the group was initially walking in front of them, Keyshawn and Jamier caught up with the group and passed them when they got to Hermitage [S]treet.
By the time the two (2) men got to Kedron Street, Keyshawn and Jamier had separated a little bit, and Keyshawn was walking a couple of yards ahead of Jamier. Keyshawn began to feel as though he was in danger because "it was too quiet." He turned around and saw [West] and Taymar Young ["Young"], the co-[d]efendant, standing behind him. Although he did not know his name at the time, Keyshawn recognized [West] as someone who had dated one of his friends. [Young] proceeded to push Keyshawn, asking Keyshawn "what do you got." Keshawn said he "did not have anything," pointed to something in the street to try to get distract the men, and began to run away.
[West] chased Keyshawn down the street and ultimately tackled him. Keyshawn was able to get to his feet, but [West] dragged him over to the bushes and grabbed hold of him. [Young] then reappeared and began hitting Keyshawn in the head and face. As Keyshawn was trying to defend himself, he heard [Young] say "give me a joint," which Keyshawn understood to mean that he wanted a gun. [Young] took possession of a black firearm and pointed it at Keyshawn's stomach, confirming to Keyshawn that the gun was, in fact, loaded. At that point, Keyshawn believed that a police cruiser happened by the area because [West] turned to [Young] and said[,] "come on, hurry up." [Young] put the gun away and started walking away with [West].
As the perpetrators were leaving, [Young] handed the firearm to [West]. [West] turned around, waved the gun at Keyshawn, and said, "if you tell anybody, I got something for you." Keyshawn waited until [West] and [Young] walked away before he and Jamier went to his grandmother's house. Keshawn later was treated at UPMC Children's Hospital of Pittsburgh for a mild concussion and some minor scrapes and bruises. Upon seeing [West's] pictures on Facebook, Keyshawn immediately recognized him as one of the people [who] robbed
him and pointed a gun at him. He was able to recognize [West] because they shared mutual friends.Trial Court Opinion, 3/27/15, at 2-4.
A jury subsequently found West guilty of the above-described charges. On December 18, 2014, for his conviction of witness intimidation, the trial court sentenced West to a prison term of 60-120 months, followed by one year of probation. The trial court imposed no further penalty as to West's remaining convictions. West filed a post-sentence Motion, which the trial court denied. Thereafter, West filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.
West received 287 days of credit for time served.
West presents the following claim for our review:
[West] was not charged with a firearms offense, and the jury made no finding that he either possessed or used a firearm. Under these circumstances, did the [trial] court violate [West's] jury-trial right—secured by both federal and state constitutions—where it imposed [a] sentence using the Deadly Weapon Enhancement matrices?Brief for Appellant at 4.
West claims that the trial court usurped the fact-finding function of the jury, and his constitutional right to a jury trial, when it applied Pennsylvania's deadly weapon enhancement, promulgated at 203 Pa. Code §§ 303.10 and 303.17(a)-(b), at sentencing. Brief for Appellant at 24. Relying upon the United States Supreme Court's decision in Alleyne v. United States , ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), West argues that "facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime and necessarily must be submitted to the jury." Brief for Appellant at 24 (internal quotation marks omitted) (quoting Alleyne , ___ U.S. at ___, 133 S. Ct. at 2160, 186 L. Ed. at 326 (citation omitted)). According to West, "[t]hough Alleyne was decided in the context of sentencing under federal mandatory minimum statutes, the constitutional problem Alleyne addressed is just as prevalent with the application of Pennsylvania's [deadly weapon enhancement] matrices." Brief for Appellant at 24. West further argues that such "post-trial, judicial fact-finding is particularly troublesome given the conflicting accounts at trial of who possessed and used a gun." Id. at 25.
West's claim challenges the legality of his sentence. See Commonwealth v. Conaway , 105 A.3d 755, 761 (Pa. Super. 2014) (recognizing that a sentencing challenge regarding the applicability of Alleyne implicates the legality of a sentence).
In Apprendi [ v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)], the Supreme Court of the United States held that "[o]ther 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." Apprendi , 530 U.S. at 490, 120 S. Ct. 2348. Stated another way, it "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 clear that such facts
must be established by proof beyond a reasonable doubt." Id. (quoting Jones v. United States , 526 U.S. 227, 252-53, 119 S. Ct. 1215, 143 L. Ed. 2d 311, (1999) (Stevens, J. concurring)).Commonwealth v. Munday , 78 A.3d 661, 664-66 (Pa. Super. 2013) (emphasis in original).
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[Subsequently,] in [ Alleyne ,] the United States Supreme Court ... h[eld] that any fact that increases the mandatory minimum sentence for a crime "is 'an element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne , 133 S. Ct. at 2155, 2163. The Alleyne majority reasoned that "[w]hile Harris [ v. United States , 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002),] limited Apprendi to facts increasing the statutory maximum, the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum." Alleyne , 133 S. Ct. at 2160. This is because "[i]t is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime[,]" and "it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment." Id. at 2161. Thus, "[t]his reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury." Id.
In Commonwealth v. Ali , 112 A.3d 1210 (Pa. Super. 2015), appeal granted , 2015 Pa. LEXIS 2759 (Pa. Dec. 2, 2015), a panel of this Court addressed whether the holding in Alleyne is implicated where the trial court applied a school zone sentence "enhancement." Id. at 1224. Distinguishing mandatory minimum sentencing provisions from sentence "enhancements," the panel in Ali ultimately concluded that Alleyne does not bar a sentence "enhancement":
The parameters of Alleyne are limited to the imposition of mandatory minimum sentences, i.e., where a legislature has prescribed a mandatory baseline sentence that a trial court must apply if certain conditions are met. The sentencing enhancements at issue impose no such floor. Rather, the enhancements only direct a sentencing court to consider a different range of potential minimum sentences, while preserving a trial court's discretion to fashion an individual sentence. By their very character, sentencing enhancements do not share the attributes of a mandatory minimum sentence that the Supreme Court held to be elements of the offense that must be submitted to a jury. The enhancements do not bind a trial court to any particular sentencing floor, nor do they compel a trial court in any given case to impose a sentence higher than the court believes is warranted. They require only that a court consider a higher range of possible minimum sentences. Even then, the trial court need not sentence within that range; the court only must consider it. Thus, even though the triggering facts must be found by the judge and not the jury—which is one of the elements of an Apprendi or Alleyne analysis—the enhancements that the trial court applied in this case are not unconstitutional under Alleyne.Ali , 112 A.3d at 1226.
Similar to the school zone enhancement at issue in Ali , the deadly weapon enhancement at issue in this case imposes no mandatory minimum sentence. Rather, it directs the sentencing court to consider a different range of potential minimum sentences, by adding to the low and high ends of the guidelines range. The trial court therefore retains discretion to impose an individual sentence, and is not compelled to sentence within the specified range. Based upon this Court's decision in Ali , we cannot grant West relief on this claim. See Commonwealth v. Beck , 78 A.3d 656, 659 (Pa. Super. 2013) (recognizing that a panel of this Court "is not empowered to overrule another panel of the Superior Court").
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2016