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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DARNELL BASON

Appellant No. 344 EDA 2013

Appeal from the Judgment of Sentence January 9, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006896-2010,

CP-51-CR-0006898-2010, CP-51-CR-0006947-2010

BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 11, 2014

Darnell Bason appeals from the judgment of sentence entered in the 

Court of Common Pleas of Philadelphia County. After our review, we affirm 

Bason’s convictions based on the opinion and supplemental opinion filed by 

the Honorable Charles J. Cunningham, III, and we vacate the judgment of 

sentence and remand for resentencing. 

Bason committed two gunpoint robberies on April 29, 2010. Following 

trial in absentia on September 14, 2012, a jury convicted Bason of robbery,1

robbery of a motor vehicle,2 possessing an instrument of crime,3escape,4

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3701(a)(1)(ii).

2 18 Pa.C.S. § 3702.

(Footnote Continued Next Page)
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and two counts of criminal conspiracy.5 On January 9, 2013, the court 

sentenced Bason to consecutive terms of imprisonment of five to ten years 

on the robbery conviction, five to ten years on the robbery of a motor 

vehicle conviction, and one to five years on each of the conspiracy 

convictions, for a total of 13 to 32 years. The court imposed the mandatory 

minimum sentence for the robbery conviction and the robbery of a motor 

vehicle conviction pursuant to 42 Pa.C.S. § 9712.6 

(Footnote Continued) _______________________

3 18 Pa.C.S. § 907.

4 18 Pa.C.S. § 5121.

5 18 Pa.C.S. § 903.

6 Section 9712 provides in relevant part:

(a) Mandatory sentence. – Except as provided under section 

9716 (relating to two or more mandatory minimum 

sentences applicable), any person who is convicted in any 

court of this Commonwealth of a crime of violence as 

defined in section 9714(g) (relating to sentences for 

second and subsequent offenses), shall, if the person 

visibly possessed a firearm or replica of a firearm, whether 

or not the firearm or replica was loaded or function, that 

placed the victim in reasonable fear of death or serious 

bodily injury, during the commission of the offense, be 

sentenced to a minimum sentence of at least five years of 

total confinement notwithstanding any other provision of 

this title or other statute to the contrary. Such persons 

shall not be eligible for parole, probation, work release or 

furlough. 

(b) Proof at sentencing. – Provisions of this section shall not 

be an element of the crime and notice thereof to the 

defendant shall not be required prior to conviction, but 

(Footnote Continued Next Page)
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Bason filed a notice of appeal, and the trial court ordered Bason to file 

a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Bason 

filed a timely statement on February 21, 2013. Thereafter, Bason filed a 

petition for extension of time to file a supplemental statement of errors 

complained of on appeal after the notes of testimony were transcribed. The 

trial court denied this petition on March 13, 2013. The trial court filed its 

opinion on November 20, 2013, and thereafter filed a supplemental opinion 

on May 22, 2014.

We incorporate by reference the trial court’s summary of the factual 

and procedural history of this case. See Trial Court Opinions, 11/20/13, at 

3-6; 5/22/14, at 2-4.

On appeal, Bason raises the following issues for our review: 

1. Did the lower court err in denying appellant’s motion to 

suppress physical evidence where the recovery of the wallet 

and the gun occurred after the police initiated a stop of 

appellant in the absence of either reasonable suspicion or 

probable cause as the description provided of the suspects 

was overwhelmingly vague, and the gun recovered by police 

was a product of forced abandonment where the illegal stop 

(Footnote Continued) _______________________

reasonable notice of the commonwealth’s intention to 

proceed under this section shall be provided after 

conviction and before sentencing. The applicability of this 

section shall be determined at sentencing. The court shall 

consider any evidence presented at trial and shall afford 

the Commonwealth and the defendant an opportunity to 

present any necessary additional evidence and shall 

determine, by a preponderance of the evidence, if this 

section is applicable.
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and detention of appellant unlawfully provoked appellant’s 

flight?

2. Did the lower court err in denying appellant’s motion to 

suppress complainant Edward Burse’s out-of-court and incourt identification where the circumstances of Burse’s 

identification were unduly suggestive as he was able to hear

information about the perpetrator conveyed over police radio 

and he identified appellant only after appellant was joined 

with another male previously identified by Burse, and the incourt identification did not have an independent origin 

sufficient to purge the primary taint of the out-of-court 

identification? 

3. Did the lower court err in denying appellant’s motion to 

suppress complainant Steven Evans’ out-of-court and in-court 

identifications where his initial identification of appellant from 

a photo array was the fruit of the illegal stop and seizure of 

appellant in the absence of either reasonable suspicion or 

probable cause, and the in-court identification did not have an 

independent origin sufficient to purge the primary taint of the 

of the out-of-court identification?

4. Should the mandatory minimum sentencing statute, 42 

Pa.C.S. § 9712 [Sentencing for offenses committed with 

firearms], be declared void and unenforceable, where multiple 

procedural provisions within the statute are facially 

unconstitutional pursuant to Alleyne v. United States, 133 

S.Ct. 2151 (2013), and cannot properly be severed from the 

remaining statute, thereby rendering application in appellant’s 

case of the mandatory minimum sentence of 5 to 10 years’ 

incarceration under this statute unconstitutional? 

After our review of the parties’ briefs and the record on appeal, we 

conclude that Judge Cunningham has properly addressed Bason’s first issue 

in his trial court opinion, see Trial Court Opinion, 11/20/13, at 13-15, and 

has properly addressed Bason’s second issue in its supplemental opinion. 

See Supplemental Trial Court Opinion, 5/22/14, at 6-9. Bason’s third issue, 

which is based on his claim that the initial stop/seizure was unlawful, has 
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also been properly addressed in the trial court’s opinion. See Trial Court 

Opinion, 11/20/13, at 13-15. We, therefore, rely on the trial court’s 

opinions to affirm Bason’s convictions. 

In his fourth issue, Bason argues that his judgment of sentence must 

be vacated and the case remanded for resentencing pursuant to Alleyne v. 

United States, 133 S. Ct. 2151 (2013). In Alleyne, the United States 

Supreme Court held that any facts leading to an increase in a mandatory 

minimum sentence are elements of the crime and must be presented to a 

jury and proven beyond a reasonable doubt. 

In reliance on Alleyne, Bason argues that the application of a 

mandatory minimum sentence pursuant to section 9712 was illegal as 

section 9712 has been held unconstitutional. Bason did not raise this claim 

before the trial court, however, in Commonwealth v. Watley, 81 A.3d 

108, 118 (Pa. Super. 2013) (en banc), this Court, discussing Alleyne, 

stated that where “[a]pplication of a mandatory minimum sentence gives 

rise to illegal sentence concerns, even where the sentence is within the 

statutory limits[,] [such] [l]egality of sentence questions are not waivable.” 

Because Bason’s claim here falls within this “narrow class of cases . . . 

considered to implicate illegal sentences,” we address its merits. Watley, 

81 A.3d at 118.7

____________________________________________

7 We note that on June 13, 2014, our Supreme Court accepted allowance of 

appeal on the issue of whether Alleyne relates to the legality of sentence, 

(Footnote Continued Next Page)
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After our review of Alleyne and the recent case law on this issue, we 

agree with Bason that his judgment of sentence must be vacated and the 

case remanded for resentencing. See Commonwealth v. Valentine, 

2014 PA Super. 220 --- A.3d ---, --- (Pa. Super. 2014) (mandatory 

minimum sentencing statutes unconstitutional in entirety in providing for 

factfinding by court rather than jury on factual predicates). See also

Commonwealth v. Newman, –––A.3d ––––, 2014 PA Super 178, 2014 WL 

4088805 (filed August 20, 2014) (en banc) (entirety of mandatory minimum 

sentencing statute must be stricken as unconstitutional; it is for the 

legislature to create new mandatory minimum sentencing procedures in 

conformity with Alleyne). 

Because Alleyne and Newman render section 9712 unconstitutional, 

we vacate the judgment of sentence and remand for resentencing without 

consideration of any mandatory minimum sentence as provided by section 

9712.8 

Judgment of sentence vacated. Case remanded for re-imposition of 

sentence consistent with this decision. Jurisdiction relinquished. 

(Footnote Continued) _______________________

stating the issue as follows: Whether a challenge to a sentence pursuant to 

Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 

(2013) implicates the legality of the sentence and is therefore non-waivable. 

Commonwealth v. Johnson, ––– Pa. ––––, 93 A.3d 806 (2014). 

8 We note that the Commonwealth does not oppose resentencing in light of 

Alleyne. See Commonwealth’s Brief, at 16.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/11/2014