J-A29031-14 2015 PA Super 1

* Retired Senior Judge assigned to the Superior Cou rt. COMMONWEALTH OF PENNSYLVANIA, Appellee

v. MICHAEL DUANE FERGUSON, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 67 WDA 2014 Appeal from the Judgment of Sentence Entered Novemb er 4, 2013,

in the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000874-2012 COMMONWEALTH OF PENNSYLVANIA, Appellee

v. MICHAEL DUANE FERGUSON, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 68 WDA 2014 Appeal from the Judgment of Sentence Entered Novemb er 4, 2013,

in the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000761-2012 BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBUR GER,* JJ. OPINION BY STRASSBURGER, J.: FILED JANUARY 05, 2015 Michael Duane Ferguson (Appellant) appeals from th e judgment of sentence entered on November 4, 2013, 1 following his convictions for, inter

1 Appellant purports to appeal from the order denyin g his post-sentence motions and reaffirming his sentence. We have corre cted the caption to reflect that Appellant’s appeal properly lies from the judgment of sentence entered on November 4, 2013, not the order denying his post-sentenceJ-A29031-14

- 2 -

alia , three counts each of robbery, criminal conspiracy to commit robbery, terroristic threats, persons not to possess firearm s, and one count of simple assault. Upon review, we affirm Appellant’s convic tions, vacate his judgment of sentence, and remand for resentencing. Appellant was charged with several offenses in cri minal informations filed at three separate dockets. At docket CP-20-C R-0000761-2012 (761- 2012), the Commonwealth charged Appellant with nume rous crimes in connection with the armed robberies of three Crawfo rd County bars, which occurred in July 2012. At docket CP-20-CR-0000757- 2012 (757-2012), which is not at issue in this appeal, the Commonwea lth charged Appellant with multiple offenses relating to Appellant’s poss ession of a sawed-off shotgun subsequently seized by police. At docket C P-20-CR-0000874-2012 (874-2012), the Commonwealth charged Appellant with simple assault and harassment as a result of an altercation between Ap pellant and Harry Boyer (Boyer), a co-conspirator in the robberies, which o ccurred on August 28, 2012, at the Crawford County Correctional Facility. On July 24, 2013, the Commonwealth filed a motion to join all three informations for trial. It appears that the trial court held argument on the motion, wherein the Commonwealth presented “informa l” information that, inter alia , suggested that at the time of the altercation bet ween Appellant and Boyer, Appellant made statements loud enough fo r a correctional officer

motions. Commonwealth v. Dreves , 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003) ( en banc ).J-A29031-14

- 3 -

and Boyer to hear that Appellant had previously war ned Boyer that he would kill Boyer if Boyer snitched on Appellant. Trial C ourt Memorandum and Order, 8/21/2013, at 2, 4. Following argument, the trial court issued a memorandum and order ruling that the offenses liste d at dockets 761-2012 and 874-2012 be joined for trial, but that the char ges at docket 757-2012 be handled in a separate proceeding. A jury trial commenced at dockets 761-2012 and 874 -2012 on September 9, 2013. Following trial, the jury convi cted Appellant on all counts. On November 4, 2013, the trial court sente nced Appellant at both dockets to an aggregate 35 to 73 years’ incarcerati on, with credit for time served. Appellant timely filed post-sentence motio ns, which the trial court denied on January 3, 2014. Appellant then appealed to this Court. 2 Appellant presents the following issues for our co nsideration:

1. Did the [t]rial [c]ourt err in joining for trial th e charge of simple assault with the robbery and related offense s?

2. Did the jury fully and adequately deliberate the fa cts of the cases or the law as it would apply to [A]ppellant’s cases?

3. Were the verdicts against the weight of the evidenc e? Appellant’s Brief at 5. In his first issue, Appellant argues that joinder was improper because it resulted in prejudice to him, as evidence of eac h case would not have been

2 Appellant appealed at both docket numbers. By orde r dated April 25, 2014, this Court issued an order sua sponte consolidating the appeals.J-A29031-14

- 4 -

admissible in the other, and the robberies and simp le assault were not part of the same act or transaction. “Whether [] separate indictments should be consoli dated for trial is within the sole discretion of the trial court and s uch discretion will be reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant.” Commonwealth v. Robinson , 864 A.2d 460, 481 (Pa. 2004) (quoting Commonwealth v. Newman , 598 A.2d 275, 277 (Pa. 1991)). Furthermore, “Appellant bears the bur den of establishing such prejudice.” Commonwealth v. Melendez–Rodriguez , 856 A.2d 1278, 1282 (Pa. Super. 2004) ( en banc ). The Pennsylvania Rules of Criminal Procedure govern the joinder and severance of offenses as follows: Joinder--Trial of Separate Indictments or Informations (A) Standards (1) Offenses charged in separate indictments or informations may be tried together if: (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (b) the offenses charged are based on the same act or transaction. Pa.R.Crim.P. 582(A)(1).J-A29031-14

- 5 -

Severance of Offenses or Defendants The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendan ts being tried together. Pa.R.Crim.P. 583. Under Rule 583, the prejudice th e defendant suffers due to the joinder must be greater than the general pre judice any defendant suffers when the Commonwealth’s evidence links him to a crime. Commonwealth v. Lauro , 819 A.2d 100, 107 (Pa. Super. 2003). [T]he “prejudice” of which Rule [583] speaks is not simply prejudice in the sense that appellant will be linke d to the crimes for which he is being prosecuted, for that sort of prejudice is ostensibly the purpose of all Commonwealth evidence. The prejudice of which Rule [583] speaks is, rather, th at which would occur if the evidence tended to convict [the] appel lant only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could n ot avoid cumulating the evidence. Id. (emphasis in original) (quoting Commonwealth v. Collins , 703 A.2d 418, 423 (Pa. 1997)). Moreover, “the admission of relevant evidence connecting a defendant to the crimes charged is a n atural consequence of a criminal trial, and it is not grounds for severance by itself.” Id. (quoting Collins , 703 A.2d at 423). Reading these rules together, our Supreme Court est ablished the following test for severance matters: Where the defendant moves to sever offenses not bas ed on the same act or transaction that have been consolidated in a single indictment or information, or opposes joinder of se parate indictments or informations, the court must therefo re determine: [1] whether the evidence of each of the offenses wo uld be admissible in a separate trial for the other; [2] w hether suchJ-A29031-14

- 6 -

evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these i nquiries are in the affirmative, [3] whether the defendant will be unduly prejudiced by the consolidation of offenses. Collins , 703 A.2d at 422 (quoting Commonwealth v. Lark , 543 A.2d 491, 496–97 (Pa. 1988)). Pursuant to this test, we must first determine whe ther the trial court abused its discretion in holding that evidence of e ach of the offenses would be admissible in a separate trial for the other. I n making this determination, we are mindful that “[e]vidence of crimes other tha n the one in question is not admissible solely to show the defendant’s bad c haracter or propensity to commit crime.” Id. ; see Pa.R.E. 404(b)(1) (providing that “[e]vidence of a crime, wrong, or other act is not admissible to pro ve a person’s character in order to show that on a particular occasion the per son acted in accordance with the character”). Nevertheless, “[t]his evidenc e may be admissible for another purpose, such as proving motive, opportunit y, intent, preparation, plan, knowledge, identity, absence of mistake, or l ack of accident.” Pa.R.E. 404(b)(2); see Melendez–Rodriguez , 856 A.2d at 1283 (explaining that evidence of other crimes is admissible to show, inter alia , motive, intent, absence of mistake or accident, common scheme or pl an, and identity). “In order for evidence of prior bad acts to be admissib le as evidence of motive, the prior bad acts ‘must give sufficient ground to believe that the crime currently being considered grew out of or was in an y way caused by the prior set of facts and circumstances.’” Melendez–Rodriguez , 856 A.2d atJ-A29031-14

- 7 -

1283 (quoting Commonwealth v. Reid , 811 A.2d 530, 550 (Pa. 2002)). “Additionally, evidence of other crimes may be admi tted where such evidence is part of the history of the case and for ms part of the natural development of the facts.” Lauro , 819 A.2d at 107 (quoting Collins , 703 A.2d at 423). Upon review, we agree with the trial court that ev idence of each of the offenses would be admissible in a separate trial fo r the other. As stated previously, Appellant and Boyer were co-conspirator s in a string of robberies occurring in July 2012. In August 2012, Appellant assaulted Boyer at the Crawford County Correctional Facility. Testimony a t trial indicated that Appellant made statements to Boyer during the cours e of the assault that connected the assault with the prior robberies. Sp ecifically, Boyer testified that Appellant stated, “I told you I was going to e ffing kill you,” and that the altercation was over Boyer giving a statement to po lice. N.T., 9/11/2013, at 4-5. Two corrections officers, Sally Jean Bullis a nd Joshua James Lintz, also testified that during the course of the altercation , Appellant stated, “Why did you say that[?] Why did you do that[?]” and “I tol d you I would get you.” Id. at 31, 37. Thus, evidence relating to the robbery charges would be admissible to establish Appellant’s motive for assa ulting Boyer. Conversely, evidence of the assault would be admissible in a tr ial for the robbery charges to establish the existence of a conspiracy between Appellant and Boyer. Further, all of the evidence formed part of the “na tural development” of theJ-A29031-14

- 8 -

facts and history of this case. See Lauro , 819 A.2d at 107 (quoting Collins , 703 A.2d at 423). Moreover, Appellant fails to establish that the ju ry was incapable of separating the crimes to avoid confusion. Our Supr eme Court has held that “[w]here a trial concerns distinct criminal offense s that are distinguishable in time, space and the characters involved, a jury is capable of separating the evidence.” Collins , 703 A.2d at 423. Here, the set of robberies and the assault occurred weeks apart in different locations and involved different victims. Thus, there was no risk of confusing the jury. See id. Finally, we conclude that Appellant was not unduly prejudiced by the trial court’s decision to allow the jury to hear ev idence of the separate, yet interrelated, crimes. Here, Appellant committed a series of robberies with Boyer as a co-conspirator and later assaulted Boyer at the Crawford County Corrections Facility. As was said in Lark , “[This was a] series of crimes committed by the [appellant] which were all related . He created the sequence of events and cannot fairly now demand tha t the ... matters be severed and tried in separate trials.” Lark , 543 A.2d at 500. Consequently, the trial court did not abuse its discretion in con solidating the informations in this case. In his second issue, Appellant argues that he is e ntitled to a new trial on the ground that the jury deliberations were inad equate, as it only took the jury approximately one hour and six minutes to render a verdict on 43J-A29031-14

- 9 -

separate counts. Appellant failed to cite any lega l authority to the trial court to support such a claim, and he cites only one case to this Court, which is inapposite. 3 Moreover, although the jury was to determine Appe llant’s guilt or innocence on 43 separate counts, many of those c ounts were related as they pertained to each of the three separate robber ies. Thus, we agree with the trial court that Appellant “was not denied a fa ir trial simply because the jury did not need to debate at length over the guil t or innocence of [Appellant] with regard to the various charges.” T rial Court Opinion, 1/3/2014, at 4. In his third issue, Appellant challenges the weight of the evidence to support his convictions relating to the robberies. In this regard, Appellant challenges the credibility of Boyer’s testimony, as well as the eyewitnesses’ identifications of Appellant as the individual who had committed the robberies. Appellant also contends that certain DN A evidence recovered by

3 In his appellate brief, Appellant cites Johnson v. Frazier , 787 A.2d 433 (Pa. Super. 2001). In that case, a jury in a civil action for damages initially reached a verdict in one hour, but a poll of the ju ry revealed that only six jurors, one short of the required seven, supported the verdict. Id. at 434. After deliberating for an additional seven minutes, the jury returned with the same verdict, this time supported by seven jurors. Id. On appeal, this Court saw “no basis for upsetting the verdict becau se of the length of deliberations,” explaining that this was not a situ ation in which the jury deliberated for a total of seven minutes. Id. at 436. This Court explained that “[g]iven the hour of prior deliberation and th e manifest expression that further deliberation would help, we cannot say seve n more minutes is so insufficient as to warrant a new trial.” Id. Likewise, we cannot say here that the jury’s deliberations were so insufficient as to warrant a new trial simply based on their length.J-A29031-14

- 10 -

police did not match Appellant’s DNA. Moreover, Ap pellant argues that none of the items seized from Appellant’s residence was identified as being worn in the robbery, and that certain other items linked to the robberies were never found. Finally, Appellant argues that the du ffel bag recovered by police contained a hair not belonging to Appellant and that no evidence proved that a shotgun recovered by police was the o ne fired during the robbery of one of the bars. Our standard of review is well-settled: The weight given to trial evidence is a choice for the factfinder. If the factfinder returns a guilty verdict, and if a c riminal defendant then files a motion for a new trial on the basis th at the verdict was against the weight of the evidence, a trial cou rt is not to grant relief unless the verdict is so contrary to t he evidence as to shock one’s sense of justice. When a trial court denies a weight-of-the-evidence motion, and when an appellant then appeals that ruling to this Court, our review is limited. It is important to understand we do not reach the underlying question of whether the verdict was, in fact, against the weight of the evidence. We do not decid e how we would have ruled on the motion and then simply repl ace our own judgment for that of the trial court. Instead, this Court determines whether the trial court abused its discr etion in reaching whatever decision it made on the motion, w hether or not that decision is the one we might have made in the first instance. Moreover, when evaluating a trial court’s ruling, w e keep in mind that an abuse of discretion is not merely an error in judgment. Rather, it involves bias, partiality, prejudice, il l-will, manifest unreasonableness or a misapplication of the law. By contrast, a proper exercise of discretion conforms to the law a nd is based on the facts of record.J-A29031-14

- 11 -

Commonwealth v. Street , 69 A.3d 628, 633 (Pa. Super. 2013) (quoting Commonwealth v. West , 937 A.2d 516, 521 (Pa. Super. 2007)). Regarding Appellant’s challenges to Boyer’s testimo ny and the eyewitness identifications, we note that the jury i s “free to believe all, part, or none of the evidence and to determine the credib ility of the witnesses.” Commonwealth v. McCloskey , 835 A.2d 801, 809 (Pa. Super. 2003). Moreover, the trial court considered the above argu ments and determined that none led it to conclude that the verdicts were so contrary to the evidence as to shock one’s sense of justice. Trial Court Opinion, 1/3/2014, at 5. Upon review, we discern no abuse of discreti on in the trial court’s determination. As a final matter, although Appellant has not raise d any issues regarding the legality of his sentence with this Co urt, it is apparent that Appellant’s sentence implicates the United States S upreme Court’s decision

in Alleyne v. United States , 133 S.Ct. 2151 (2013). 4 Specifically, the trial court imposed a sentence of 6 to 12 years’ incarcer ation for each of Appellant’s robbery convictions and a sentence of 5 to 10 years’ incarceration for each of Appellant’s criminal cons piracy to commit robbery

4 See Commonwealth v. Hurst , 532 A.2d 865, 869 n.2 (Pa. Super. 1987) (providing that “illegality of sentence is not waiv able and may be raised by this Court sua sponte ”).J-A29031-14

- 12 -

convictions. 5 These sentences were the result of the mandatory minimum sentences found in 42 Pa.C.S. § 9712. That section provides, in relevant part, as follows: (a) Mandatory sentence.-- Except as provided under section 9716 (relating to two or more mandatory minimum sen tences applicable), any person who is convicted in any cou rt of this Commonwealth of a crime of violence as defined in s ection 9714(g) (relating to sentences for second and subse quent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in rea sonable fear of death or serious bodily injury, during the commissi on of the offense, be sentenced to a minimum sentence of at l east five years of total confinement notwithstanding any othe r provision of this title or other statute to the contrary. Suc h 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 th e defendant shall not be required prior to conviction, but reas onable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sente ncing. The applicability of this section shall be determined a t sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opport unity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable. (c) Authority of court in sentencing.-- There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than prov ided for in subsection (a) or to place such offender on probati on or to suspend sentence. Nothing in this section shall pre vent the sentencing court from imposing a sentence greater t han that provided in this section. Sentencing guidelines pro mulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

5 The sentences for the robbery convictions were to run consecutive with each other, and the sentences for the criminal cons piracy convictions were to run concurrent with the three robbery conviction s.J-A29031-14

- 13 -

42 Pa.C.S. § 9712(a)-(c).

In Commonwealth v. Watley , 81 A.3d 108 (Pa. Super. 2013) ( en banc ), this Court noted the effect of Alleyne on mandatory minimum sentencing statutes in Pennsylvania: According to the Alleyne Court, a fact that increases the sentencing floor is an element of the crime. Thus, it ruled that facts that mandatorily increase the range of penalt ies for a defendant must be submitted to a fact-finder and pr oven beyond a reasonable doubt. The Alleyne decision, therefore, renders those Pennsylvania mandatory minimum sentencing sta tutes that do not pertain to prior convictions constituti onally infirm insofar as they permit a judge to automatically inc rease a defendant’s sentence based on a preponderance of th e evidence standard. Watley , 81 A.3d at 117 (footnote omitted). 6 Notably, notwithstanding its observations regarding the constitutionality of Pennsylvania’s mandatory minim um sentencing statutes outlined above, the Watley Court upheld the mandatory minimum sentence in that case, which the trial court imposed pursuan t to 42 Pa.C.S. § 9712.1. Watley , 81 A.3d at 121. The Court did so on the ground that “the factual predicates for determining the mandatory minimum we re proven to a jury beyond a reasonable doubt.” Id. Here, the trial court similarly explained that “any impact that Alleyne may have had on this case was addressed appropriate ly,” as the fact that Appellant visibly possessed a firearm that placed t he victim in reasonable fear or death or serious bodily injury was submitte d to and determined by

6 Among those mandatory minimum sentencing statutes listed in Watley is 42 Pa.C.S. § 9712(c). See id. at 117 n.4.J-A29031-14

- 14 -

the jury for the criminal conspiracy to commit robb ery and robbery convictions. Trial Court Opinion, 1/3/2014, at 6; see Verdict Slip, 9/12/2013, at 1. Based on this Court’s recent deci sions in Commonwealth

v. Newman , 99 A.3d 86 (Pa. Super. 2014) ( en banc ), and Commonwealth v. Valentine , __ A.3d __, 2014 WL 4942256 (Pa. Super. filed Oct ober 3, 2014), we disagree.

In Valentine , this Court aptly discussed the Newman decision as follows:

In Newman , we reviewed the constitutionality of 42 Pa.C.S.A. § 9712.1, which enhances the minimum sentence where a firearm is found on a drug dealer, an accomplice, o r in the vicinity of the contraband. ... [***] We explained in Newman that under Alleyne , the factual predicates for imposition of the § 9712.1 mandatory minimum sentence (i.e., that the firearm was found on a dru g dealer, an accomplice or in the vicinity of the contraband) “m ust be pleaded in the indictment, and must be found by the jury be yond a reasonable doubt before the defendant may be subjec ted to an increase in the minimum sentence.” Concluding that the factual predicates for imposition of the mandatory minimum sentence had not been presented to a jury, we vacated the ju dgment of sentence. Notably in Newman , we declined the Commonwealth’s proposed remedy that we remand for a sentencing jury to dete rmine beyond a reasonable doubt whether the Commonwealth had proven the factual predicates for § 9712.1. We expl ained: [T]he Commonwealth’s assertion assumes that Subsect ion (a) of Section 9712.1, which sets the predicate for the mandatory minimum sentence, survives constitutional muster, and that only Subsection (c), which directs that the trial court shall determine the predicate of Su bsectionJ-A29031-14

- 15 - (a) by a preponderance of the evidence, fails. In o ther words, the Commonwealth is contending that we may sever and retain those parts of Section 9712.1 that are not constitutionally infirm.... We respectfully disagre e. [***] We find that Subsections (a) and (c) of Section 971 2.1 are essentially and inseparably connected. Following Alleyne , Subsection (a) must be regarded as the elements of the aggravated crime of possessing a firearm while traf ficking drugs. If Subsection (a) is the predicate arm of Se ction 9712.1, then Subsection (c) is the “enforcement” ar m. Without Subsection (c), there is no mechanism in pl ace to determine whether the predicate of Subsection (a) h as been met. The Commonwealth’s suggestion that we remand for a sentencing jury would require this court to manufac ture whole cloth a replacement enforcement mechanism for Section 9712.1; in other words, the Commonwealth is asking us to legislate. We recognize that in the pr osecution of capital cases in Pennsylvania, there is a simila r, bifurcated process where the jury first determines guilt in the trial proceeding (the guilt phase) and then wei ghs aggravating and mitigating factors in the sentencin g proceeding (the penalty phase). However, this mecha nism was created by the General Assembly and is enshrine d in our statutes at 42 Pa.C.S.A. § 9711. We find that i t is manifestly the province of the General Assembly to determine what new procedures must be created in or der to impose mandatory minimum sentences in Pennsylvan ia following Alleyne

. We cannot do so. Valentine , 2014 WL 4942256, at *6-*8 (citations omitted) (quoting

Newman , 99 A.3d at 98, 101-02). Thus, in Newman , this Court vacated and remanded for resentencing without consideration of the mandatory minimum sentences provided in section 9712.1. Newman , 99 A.3d at 103.J-A29031-14

- 16 -

In Valentine , this Court addressed whether the trial court’s im position of mandatory minimum sentences pursuant to 42 Pa.C. S. §§ 9712 and 9713 was unlawful. Importantly, the trial court permitted the jury, on the verdict slip, to determine beyond a reasonable doubt whether Appella nt possessed a firearm that placed the victim in fear of immediate serious bodily injury in the course of committing a theft for purposes of the mandatory minimum sentencing provis ions of 42 Pa.C.S.A. § 9712(a), and whether the crime occurred in whole or in part at or near public transportation, for purpo ses of the mandatory minimum sentencing provisions of 42 Pa.C. S.A. § 9713(a). The jury responded “yes” to both questio ns. Valentine , 2014 WL 4942256, at *8. Nevertheless, we observe d in Valentine that [i]n presenting those questions to the jury, howeve r, we conclude, in accordance with Newman , that the trial court performed an impermissible legislative function by creating a new procedure in an effort to impose the mandatory minimum sentences in compliance with Alleyne

. The trial court erroneously presupposed that only S ubsections (c) of both 9712 and 9713 (which permit a trial jud ge to enhance the sentence based on a preponderance of th e evidence standard) were unconstitutional under Alleyne , and that Subsections (a) of 9712 and 9713 survived constitut ional muster. By asking the jury to determine whether the factual prerequisites set forth in § 9712(a) and § 9713(a) had been met, the trial court effectively determined that th e unconstitutional provisions of § 9712(c) and § 9713 (c) were severable. Our decision in Newman however holds that the unconstitutional provisions of § 9712(c) and § 9713 (c) are not severable but “essentially and inseparably connecte d” and that the statutes are therefore unconstitutional as a wh ole. Moreover, Newman makes clear that “it is manifestly the province of the General Assembly to determine what new procedures must be created in order to impose manda tory minimum sentences in Pennsylvania following Alleyne

. ”J-A29031-14

- 17 -

Therefore, the trial court lacked the authority to allow the jury to determine the factual predicates of §§ 9712 and 971 3. Id. (citations omitted) (quoting Newman , 99 A.3d at 101-02). Based on the foregoing, we likewise vacate Appellan t’s sentence and remand for resentencing without consideration of th e mandatory minimum sentences provided in section 9712. Convictions affirmed. Judgment of sentence vacated . Case remanded. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/05/2015