J-S44031-22

2023 PA Super 20

COMMONWEALTH OF PENNSYLVANIA

v.

ALFRED C. CARRERA II 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 694 MDA 2022

Appeal from the PCRA Order Entered April 6, 2022

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0000132-2017

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED: FEBRUARY 8, 2023

Alfred C. Carrera II (Carrera) appeals from the order of the Court of 

Common Pleas of Dauphin County (PCRA court) denying his first petition filed 

pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. 

He argues that the court erred in denying his petition because his sentence 

was illegal where it was based on Pennsylvania’s Three Strikes Law.1 We 

affirm and grant counsel’s motion for leave to withdraw.

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* Retired Senior Judge assigned to the Superior Court.

1 Section 9714 of the Sentencing Code, Sentences for Second and Subsequent 

Offenses, provides, in pertinent part:

* * *

(2) Where the person had at the time of the commission of 

the current offense previously been convicted of two or more such 

(Footnote Continued Next Page)
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We take the relevant factual background and procedural history from 

the PCRA court’s April 4, 2018 memorandum opinion and our independent 

review of the record.

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crimes of violence arising from separate criminal transactions, the 

person shall be sentenced to a minimum sentence of at least 25 

years of total confinement, notwithstanding any other provision of 

this title or other statute to the contrary. Proof that the offender 

received notice of or otherwise knew or should have known of the 

penalties under this paragraph shall not be required. ...

* * *

(d) Proof at sentencing.— ... The applicability of this section 

shall be determined at sentencing. The sentencing court, prior to 

imposing sentence on an offender under subsection (a), shall have 

a complete record of the previous convictions of the offender, 

copies of which shall be furnished to the offender. If the offender 

or the attorney for the Commonwealth contests the accuracy of 

the record, the court shall schedule a hearing and direct the 

offender and the attorney for the Commonwealth to submit 

evidence regarding the previous convictions of the offender. The

court shall then determine, by a preponderance of the

evidence, the previous convictions of the offender and, if

this section is applicable, shall impose sentence in

accordance with this section. ...

* * *

(g) Definition.—As used in this section, the term “crime of 

violence” means ... aggravated indecent assault ... robbery ... or 

robbery of a motor vehicle ....

42 Pa.C.S. § 9714(a)(2), (d), (g) (emphasis in original).
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I.

On November 17, 2016, the Middletown Police Department charged 

Carrera with one count each of robbery of a motor vehicle, 18 Pa.C.S. 

§ 3702(a), and terroristic threats, 18 Pa.C.S. § 2706(a)(1).2 The charges 

stemmed from a November 13, 2016 incident at the Hardee’s in Middletown. 

That night, Doris Louey was driving a 2006 Dodge Durango when she stopped 

to get food at the restaurant. Ms. Louey was sitting with her keys and wallet 

on the table in front of her. Carrera and his ex-fiancé, Lisa Dawn Smith

(Smith), were at the table behind Ms. Louey. Carrera rushed over, grabbed 

the keys and wallet and he and Smith ran out of the Hardees and got into Ms. 

Louey’s car, with Carrera in the driver’s seat and Smith in the passenger’s

seat.

Ms. Louey ran after them and grabbed the passenger side door, telling 

the couple they could not take her car. Carrera yelled at Ms. Louey to get 

away or he would shoot her. Ms. Louey did not see a gun but saw Carrera 

motioning toward his side as if reaching for one. He and Smith then sped 

away.

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2 A charge of theft by unlawful taking, 18 Pa.C.S. § 3921(a), was later 

withdrawn.
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Police recovered the damaged Dodge Durango, which Ms. Louey was 

able to identify. She also identified Carrera and Smith in a photo array from 

her recollection of what had happened.

At trial, Carrera testified that he and Smith were high on crack on the 

day of the incident and, before Ms. Louey came into the Hardees, were joking 

about needing a car. When they saw Ms. Louey, Carrera decided to take her 

vehicle. He admitted that he “did everything [he was] accused of except for 

threaten her. That’s the only thing I didn’t do. Everything else I did.” (N.T. 

Trial, 12/04/17, at 145).

On December 5, 2017, a jury convicted Carrera with one count each of 

robbery of a motor vehicle and terroristic threats.3 In his January 16, 2018 

sentencing memorandum, Carrera maintained that the Commonwealth 

informed him prior to trial that the robbery conviction was his third strike. 

Carrera argued that the robbery conviction should not be considered a third 

strike because: (1) his 1996 aggravated indecent assault conviction was not 

included in the Three Strikes legislation until 2000; (2) the Commonwealth 

waived the personal injury elements from a 2014 robbery conviction; and (3) 

Carrera was not given notice of his first or second strike and was not 

sentenced to a second strike.

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3 Smith pleaded guilty to charges related to the incident.
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On January 31, 2018, the court sentenced Carrera to not less than 25

nor more than 50 years’ incarceration on the robbery conviction as a thirdtime offender pursuant to the Three Strikes Law, and five years’ probation on 

the terroristic threat’s conviction. Carrera filed a direct appeal challenging the 

sufficiency and weight of the evidence and the legality of his sentence due to 

the court’s application of the Three Strikes Law, raising the same arguments 

as he did in his sentencing memorandum. (See Commonwealth v. Carrera, 

2018 WL 4844711, unreported memorandum, at *4-*7 (Pa. Super. filed Oct. 

5, 2018)). This Court affirmed,

4 and the Pennsylvania Supreme Court denied 

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4

In pertinent part, this Court found:

The imposition of a mandatory minimum sentence pursuant 

to Section 9714, which counts a conviction that occurred before 

the enactment of the statute as a strike, is not an unlawful 

retroactive application of law. Commonwealth v. Ford, 947

A.2d 1251 (Pa. Super. 2008) (citing Commonwealth v. Smith,

866 A.2d 1138 (Pa. Super. 2005)). Therefore, [Carrera]’s 1996 

aggravated-indecent-assault conviction was correctly counted as 

a strike pursuant to Section 9714, and [Carrera]’s argument to 

the contrary is meritless.

* * *

In 2014, [Carrera] pleaded guilty to and was convicted of 

committing robbery under 18 Pa.C.S. § 3701(a)(1)(ii), an offense 

enumerated as a strike under 42 Pa.C.S. § 9714(g). Nothing in 

the record reveals that the Commonwealth waived an element of 

the 2014 robbery making it a nonviolent crime; rather, the 

Commonwealth waived the crime-of-violence prohibition for 

sentencing purposes and [Carrera]’s ineligibility for State 

Intermediate Punishment. Accordingly, we conclude that 

(Footnote Continued Next Page)
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further review on April 17, 2019. (See id. appeal denied, 206 A.3d 1030 (Pa. 

2019)).

Carrera filed a timely5 pro se PCRA petition on March 23, 2020, raising 

eight claims of trial counsel ineffectiveness, including, in pertinent part, 

counsel’s failure to argue in his direct appeal that Pennsylvania’s Three Strikes 

Law violated his Constitutional rights pursuant to Apprendi v. New Jersey, 

530 U.S. 466 (2000), which held that, with the exception 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 491. Appointed counsel filed an 

amended petition on January 5, 2021.

The amended petition addressed all the pro se ineffectiveness claims, 

declining to advance most of them further because they lacked merit. (See

Supplemental Petition Pursuant to the PCRA, 1/05/21, at ¶¶ 57-96). It raised 

two issues. First, it argued that counsel was ineffective for failing to challenge 

the weight of the evidence, thus waiving it for appellate review. (See id. at 

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[Carrera]’s 2014 robbery conviction counted as a strike under 

Section 9714.

(Carrera, 2018 WL 4844711, at *6).

5 There is no argument that Carrera’s petition was untimely because he filed 

it within one year of the date his judgment became final. See 42 Pa.C.S.

§ 9545(b)(1), (3).
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¶¶ 41-56). Second, it conceded that trial counsel was not ineffective for failing 

to argue Apprendi on appeal because settled Pennsylvania law was stated 

that the Three Strikes Law was constitutional and Apprendi did not apply 

where a defendant’s prior criminal history provided the basis for a sentence 

higher than that ordinarily applicable. (See Supplemental Petition Pursuant 

to the PCRA, 1/05/21, at ¶ 96); see also Apprendi, 530 U.S. at 491.

However, the amended petition argued that Carrera’s sentence is now

illegal because, since his sentencing, the federal district court decided Roselli 

v. Smith, 2020 WL 6449267, unpublished memorandum, at *1 (E.D. Pa. filed 

Nov. 2, 2020), which held that the imposition of a sentence under the Three 

Strikes Law does implicate Apprendi, comparing it to the federal court’s 

consideration of the Armed Career Criminal Act (ACCA), and, therefore, it was 

for the jury to determine, beyond a reasonable doubt, whether his prior 

convictions were crimes of violence. (See Supplemental Petition, at ¶¶ 97-

99); see also Roselli, 2020 WL 6449267, at *4-5. Carrera requested the 

court vacate his illegal sentence and hold a new sentencing hearing without 

application of the Three Strikes Law. (See Supplemental Petition, at ¶ 100).

On December 29, 2021, the PCRA court issued Rule 907 notice of its 

intent to dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1). 

The court explained, in pertinent part, that Roselli is a non-binding district 

court case and that, “therefore, this court stands by its evaluation of the third 

strike issue as presented in [Carrera]’s direct appeal and found meritless by 
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both this court and the Pennsylvania Superior Court.” (Memorandum Opinion, 

12/19/21, at 6) (unnecessary capitalization omitted). Carrera did not respond 

to the Rule 907 notice, and the court formally dismissed the petition on April 

6, 2022. Carrera timely appealed6 and complied with the PCRA court’s order 

that he file a statement of errors complained of on appeal. See Pa.R.A.P. 

1925(b).

Carrera raises one issue for our review: “Whether the [PCRA] court 

erred by denying [his] resentencing based upon the unconstitutionality of 

Pennsylvania’s Three Strikes Law?” (Carrera’s Brief, at 4).7

II.

Carrera argues that the court erred in denying his PCRA petition because 

the Pennsylvania Three Strikes Law is unconstitutional as applied to him, and 

because he challenged “the legal and factual basis for [its] imposition,”8the 

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6

In reviewing the denial of PCRA relief, our standard of review is limited to 

whether the record supports the PCRA court’s factual determinations and 

whether its decision is free of legal error. See Commonwealth v. Lopez,

249 A.3d 993, 998 (Pa. 2021). “The determination as to whether the trial 

court imposed an illegal sentence is a question of law; our standard of review 

in cases dealing with questions of law is plenary.” Commonwealth v.

Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010).

7 To be eligible for PCRA relief, an appellant must prove by a preponderance 

of the evidence: “That the conviction or sentence resulted from one or more 

of the following: ... the imposition of a sentence greater than the lawful 

maximum.” 42 Pa.C.S. § 9543(a)(2)(vii).

8 We disagree with Carrera’s statement that his challenge is one of fact. 

Whether a 1996 conviction for aggravated indecent assault is properly 

(Footnote Continued Next Page)
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jury should have made the determination about whether his predicate offenses 

were “crimes of violence” to which it applied. (See id. at 10, 12-17). In 

support of his claim, he relies on Roselli, an unpublished federal district court 

decision.

9

 (See id.).

To understand Roselli’s federal habeas corpus case on which Carrera 

relies, we provide the following limited background.

A.

In his direct appeal to this Court, Roselli argued that the Three Strikes 

Law violates Alleyne v. United States, 570 U.S. 99 (2013),

10 and is 

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included as a predicate offense under the Three Strikes statute where it was 

not included in the legislation until 2000 is a question of law; as is whether 

Carrera’s 2014 robbery conviction was a strike under the statute where the 

Commonwealth waived the crime of violence prohibition for sentencing 

purposes only. See Commonwealth v. Andrews, 173 A.3d 1219, 1221 (Pa. 

Super. 2017) (interpretation of statute “implicates a question of law.”).

9 We agree with the Commonwealth and the PCRA court that Carrera’s claim 

fails because Roselli, a trial level federal district court decision, is not binding 

on this Court. (See Commonwealth’s Brief, at 11); (PCRA Ct. Op., 12/29/21, 

at 6); see also NASDAQ OMX PHLX, Inc. v. PennMont Sec., 52 A.3d 296,

303 (Pa. Super. 2012) (“federal court decisions do not control the 

determinations of the Superior Court. Our law clearly states that, absent a 

United States Supreme Court pronouncement, the decisions of federal courts 

are not binding on Pennsylvania state courts[.]”). Carrera is unable to identify 

any state cases, binding or otherwise, which have applied Roselli.

10 Alleyne held that “any fact that increases the mandatory minimum is an 

‘element’ that must be submitted to the jury.” Alleyne, 99 U.S. at 103. “The

Alleyne decision ... renders those Pennsylvania mandatory minimum 

sentencing statutes that do not pertain to prior convictions

constitutionally infirm insofar as they permit a judge to automatically increase 

a defendant’s sentence based on a preponderance of the evidence standard.” 

(Footnote Continued Next Page)
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unconstitutional (facially and as-applied) because it “permits an automatic 

increase of a defendant’s sentence beyond the statutory maximum, without 

notice and without a jury finding beyond a reasonable doubt for its 

application.” Commonwealth v. Roselli, 2015 WL 7722264, unpublished 

memorandum, at *2 (Pa. Super. filed Jan. 13, 2015). He argued that his 

predicate burglary offenses were only qualifying offenses under the Three 

Strikes Law if the intruder enters a building or structure while another person 

is present and if the building or structure is adapted for overnight 

accommodations. See 42 Pa.C.S. § 9714(g). However, we observed that 

Alleyne was inapplicable because it did not overrule the narrow exception for 

the fact of a prior conviction. After setting forth the language of Section 9714, 

the Court found that the jury was not required to make this decision for 

sentencing purposes. We explained:

[T]he [Three Strikes] law requires that the trial court must 

make a determination, based upon evidence before it, whether 

the defendant has previous convictions for crimes of violence as 

defined by subsection (g). At sentencing in the present case, the 

Commonwealth offered a certified copy of Roselli’s conviction of 

first-degree felony burglary from 1989 in Delaware County and a 

copy of the affidavit of probable cause associated with that 

conviction. The Commonwealth similarly offered a certified copy 

of Roselli’s 1998 first-degree felony burglary conviction from 

Dauphin County as well as the affidavit of probable cause in that 

matter. Roselli objected to the affidavits (which were the only 

documents stating that another person was present in the home 

at the time Roselli burglarized them) as hearsay. The trial court 

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Commonwealth v. Valentine, 101 A.3d 801, 804 n.2 (Pa. Super. 2014) 

(emphasis added).
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overruled Roselli’s objection upon its rationalization that it is not 

bound by the rules of evidence in a sentencing proceeding, and 

further that the documents presented by the Commonwealth were 

“self-certifying, reliable documents.” We can see no error in that 

determination.

Id. at *6 (record citations omitted). We concluded that Roselli’s facial 

constitutional challenge failed because the Three Strikes statute’s directive 

that the sentencing court and not the jury shall determine whether the 

mandatory minimum is applicable and does not violate Alleyne or the 

constitution. The Commonwealth established probable cause to support the 

sentence by offering proof in the form of the convictions and the affidavits of 

probable cause that showed he had been convicted for crimes of violence 

enumerated in the statute. We also concluded that his as-applied challenge 

lacked merit because a jury is not required to find a crime of violence, so its 

failure to do so in his case was constitutional. See id. at *8. We affirmed the 

trial court and the Pennsylvania Supreme Court denied further review.11

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11 Judge Strassburger concurred in the result, stating:

We are dealing with an issue of what the convictions involve, i.e., 

were the burglary convictions crimes of violence because the 

buildings were occupied. Certainly an argument can be made that 

this issue involves a factual question that requires a jury to decide 

it beyond a reasonable doubt. Unfortunately for Roselli, that 

argument has been repeatedly rejected by the courts. See U.S. 

v. Blair, 734 F.3d 218, 227-28 (3rd Cir. 2013):

Blair’s arguments fail, however, because Almendarez–

Torres has not been narrowed and remains the law. 

Alleyne, [560 U.S. at 111] n.1. Descamps and Alleyne do 

(Footnote Continued Next Page)
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B.

Roselli then filed a federal writ of habeas corpus raising the same issues. 

He argued that his predicate convictions for burglary were only qualifying 

offenses under subsection (g) of the Three Strikes law only if the intruder 

enters a building or structure while another person is present and if the 

building or structure is adapted for overnight accommodations. He argued 

that the application of § 9714 in his case is unconstitutional because the jury 

did not make the finding that he has two prior convictions for crimes of 

violence. Having rejected his claim that the jury was required to make this 

finding, this issue fails.

The district court found that the federal “categorical approach” utilized 

to determine when an out-of-state conviction may serve as a predicate offense 

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nothing to restrict the established exception under

Almendarez–Torres that allows judges to consider prior 

convictions. When the pertinent documents show, as they do 

in this case, that the prior convictions are for separate crimes 

against separate victims at separate times, Alleyne does not 

somehow muddy the record and convert the separateness 

issue into a jury question. Alleyne was written against the 

backdrop of Almendarez–Torres and existing ACCA 

jurisprudence. Had the Supreme Court meant to say that all 

details related to prior convictions are beyond judicial notice, 

it would have said so plainly, as that would have been a 

marked departure from existing law.

Roselli, 2015 WL 7722264, at *9.
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for the ACCA, 18 U.S.C. § 924(e),

12 should be applied to considerations of 

whether a prior conviction was a “crime of violence” for Third Strike purposes. 

Pursuant to this approach, “the underlying state’s statute’s elements must be 

the same as or narrower than those of the generic offense. According to 

Roselli, in conducting this analysis, the sentencing court must ignore the 

particular facts of the case and focus solely on whether the elements of the 

convicted crime sufficiently match the elements of the generic offense.

Roselli observed that there is only one circumstance in which a court 

may depart from the categorical approach and, there, a court may consult 

“the terms of the charging document, the terms of a plea agreement or 

transcript of a colloquy between judge and defendant in which the factual 

basis was confirmed by the defendant, or some comparable judicial record of 

information.” Should any further evidence be required, it should be 

considered by a jury. Because the sentencing court had to rely on material 

that was extrinsic to the crime itself, i.e., whether the building was occupied, 

to which the defendant did not confirm, the district court held that we erred 

in not upholding the as-applied challenge.

Now back to this appeal.

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12 The ACCA requires imposition of a mandatory minimum 15-year term of 

imprisonment for recidivists convicted of prohibited possession of a firearm 

under 18 U.S.C. § 922(g), who have three prior state or federal convictions 

for violent felonies or serious drug offenses.
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C.

At the outset, we note that Roselli is not binding on this Court. It 

conflicts with our decisions that it is the sentencing court that makes the 

decision whether a prior crime is a crime of violence for purposes of the 

statute, and “the court may receive any relevant information for the purposes 

of determining the proper penalty.” Commonwealth v. Maroney, 193 A.2d

640, 642 (Pa. Super. 1963).

[T]he Supreme Court explicitly exempted the existence of prior 

convictions from the mandate of jury consideration when 

sentencing enhancement is an issue. When considering the 

propriety of a sentencing enhancement in the wake of Apprendi,

supra, this Court has determined that it is appropriate to employ 

a multi-part analysis. Commonwealth v. Lowery, 784 A.2d

795, 799 (Pa. Super. 2001). First, we must ascertain whether the 

enhanced sentence exceeded the statutory maximum for the 

crime for which the defendant was convicted. If it did, the next 

question is whether the enhanced sentence was based upon the 

fact of a prior conviction. If it was, then the sentence is 

constitutional. If it was not, then the sentence is unconstitutional.

Id. (citing United States v. Williams, 235 F.3d 858, 863 n. 4

(3d Cir.2000)).

Commonwealth v. Harris, 888 A.2d 862, 872 (Pa. Super. 2005).

Moreover, even if Roselli applied, the facts here are significantly 

different in that no extrinsic evidence was needed to determine whether

Carrera committed three enumerated crimes that made the Third Strike 

sentencing enhancement applicable. At sentencing, the Commonwealth 

produced a sealed and certified file from the clerk of courts that evidenced 

that Carrera pleaded guilty to aggravated indecent assault, 18 Pa.C.S. 
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§ 3125(1),

13 on February 6, 1996, and a sealed and certified docket that 

reflected Carrera pled guilty to robbery, 18 Pa.C.S. § 3701(a)(1)(ii),

14 on 

August 29, 2014. (See N.T. Sentencing, 1/31/18, at 3-4). Both exhibits were 

moved into the record as self-authenticating, and the convictions were for

enumerated crimes of violence under the Three Strikes legislation. (See id.

at 4); 42 Pa.C.S. § 9714(g). No extrinsic evidence such as an affidavit of 

probable cause was used in determining whether any of the crimes were 

qualifying crimes in applying the enhancement.

As this Court explained in his direct appeal, the sentencing court 

properly found that his 1996 conviction for aggravated indecent assault was 

a first strike despite it not being included in the Three Strikes Law until 2000,

and the Commonwealth did not waive the personal injury element of his 2014 

robbery; therefore, it was a second strike. (See Carrera, 2018 WL 4844711, 

at *6). Carrera’s reliance on Roselli is neither legally binding nor persuasive. 

Moreover, even if Roselli was either, the application of the enhancement was 

constitutional. Unlike in that case, Carrera’s sentencing as a third-strike 

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13 18 Pa.C.S. § 3125(1) provides, in pertinent part, that “a person who 

engages in penetration, however slight, of the genitals or anus of a 

complainant with a part of the person’s body for any purpose other than good 

faith medical, hygienic or law enforcement procedures commits aggravated 

indecent assault if: (1) the person does so without the complainant’s 

consent[.] ...”

14 18 Pa.C.S. § 3701(a)(1)(ii)(1) provides that “A person is guilty of robbery 

if, in the course of committing theft, he: ... (ii) threatens another with or 

intentionally puts him in fear of immediate serious bodily injury[.] ...”.
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offender was based on his prior convictions, without the use of any extrinsic 

evidence such as a probable cause affidavit, making the enhancement 

constitutional even if Roselli was applicable.

Accordingly, because Carrera’s sentencing as a third-strike offender was 

based on the fact of his prior convictions, which were offenses enumerated in 

the Three Strikes Law, the enhancement was constitutional. See Harris, 888 

A.2d at 872. For all these reasons, we affirm the order of the PCRA court 

dismissing his petition. The motion for leave to withdraw of Amanda A. Batz, 

Esq. is granted and the trial court is directed to appoint new counsel for any 

further appellate proceedings.

Order affirmed. Motion for leave to withdraw is granted. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/8/2023