J-A29031-14 

2015 PA Super 1 

* Retired Senior Judge assigned to the Superior Court. 

COMMONWEALTH OF PENNSYLVANIA,

 Appellee 

v. 

MICHAEL DUANE FERGUSON, 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

 No. 67 WDA 2014 

 

Appeal from the Judgment of Sentence Entered November 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 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

 No. 68 WDA 2014 

 

Appeal from the Judgment of Sentence Entered November 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 STRASSBURGER,* JJ. 

OPINION BY STRASSBURGER, J.: FILED JANUARY 05, 2015

 Michael Duane Ferguson (Appellant) appeals from the judgment of 

sentence entered on November 4, 2013,1 following his convictions for, inter 

 

1

 Appellant purports to appeal from the order denying his post-sentence 

motions and reaffirming his sentence. We have corrected 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-sentence 
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alia, three counts each of robbery, criminal conspiracy to commit robbery, 

terroristic threats, persons not to possess firearms, and one count of simple 

assault. Upon review, we affirm Appellant’s convictions, vacate his 

judgment of sentence, and remand for resentencing. 

 Appellant was charged with several offenses in criminal informations 

filed at three separate dockets. At docket CP-20-CR-0000761-2012 (761-

2012), the Commonwealth charged Appellant with numerous crimes in 

connection with the armed robberies of three Crawford 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 Commonwealth charged Appellant 

with multiple offenses relating to Appellant’s possession of a sawed-off 

shotgun subsequently seized by police. At docket CP-20-CR-0000874-2012 

(874-2012), the Commonwealth charged Appellant with simple assault and 

harassment as a result of an altercation between Appellant and Harry Boyer 

(Boyer), a co-conspirator in the robberies, which occurred 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 “informal” information that, 

inter alia, suggested that at the time of the altercation between Appellant 

and Boyer, Appellant made statements loud enough for a correctional officer 

 

motions. Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super. 

2003) (en banc). 
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and Boyer to hear that Appellant had previously warned Boyer that he would 

kill Boyer if Boyer snitched on Appellant. Trial Court Memorandum and 

Order, 8/21/2013, at 2, 4. Following argument, the trial court issued a 

memorandum and order ruling that the offenses listed at dockets 761-2012 

and 874-2012 be joined for trial, but that the charges 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 convicted Appellant on all 

counts. On November 4, 2013, the trial court sentenced Appellant at both 

dockets to an aggregate 35 to 73 years’ incarceration, with credit for time 

served. Appellant timely filed post-sentence motions, which the trial court 

denied on January 3, 2014. Appellant then appealed to this Court.2

 Appellant presents the following issues for our consideration: 

1. Did the [t]rial [c]ourt err in joining for trial the charge of 

simple assault with the robbery and related offenses? 

2. Did the jury fully and adequately deliberate the facts of the 

cases or the law as it would apply to [A]ppellant’s cases? 

3. Were the verdicts against the weight of the evidence? 

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 each case would not have been 

 

2

 Appellant appealed at both docket numbers. By order dated April 25, 2014, 

this Court issued an order sua sponte consolidating the appeals. 
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admissible in the other, and the robberies and simple assault were not part 

of the same act or transaction. 

 “Whether [] separate indictments should be consolidated for trial is 

within the sole discretion of the trial court and such 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 burden 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). 
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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 defendants being 

tried together. 

Pa.R.Crim.P. 583. Under Rule 583, the prejudice the defendant suffers due 

to the joinder must be greater than the general prejudice 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 linked 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, that which would 

occur if the evidence tended to convict [the] appellant only by 

showing his propensity to commit crimes, or because the jury 

was incapable of separating the evidence or could not 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 natural 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 established the 

following test for severance matters: 

Where the defendant moves to sever offenses not based on the 

same act or transaction that have been consolidated in a single 

indictment or information, or opposes joinder of separate 

indictments or informations, the court must therefore determine: 

[1] whether the evidence of each of the offenses would be 

admissible in a separate trial for the other; [2] whether such 
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evidence is capable of separation by the jury so as to avoid 

danger of confusion; and, if the answers to these inquiries 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 whether the trial court 

abused its discretion in holding that evidence of each of the offenses would 

be admissible in a separate trial for the other. In making this determination, 

we are mindful that “[e]vidence of crimes other than the one in question is 

not admissible solely to show the defendant’s bad character 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 prove a person’s character in 

order to show that on a particular occasion the person acted in accordance 

with the character”). Nevertheless, “[t]his evidence may be admissible for 

another purpose, such as proving motive, opportunity, intent, preparation, 

plan, knowledge, identity, absence of mistake, or lack 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 plan, and identity). “In 

order for evidence of prior bad acts to be admissible 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 any way caused by the 

prior set of facts and circumstances.’” Melendez–Rodriguez, 856 A.2d at 
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1283 (quoting Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002)). 

“Additionally, evidence of other crimes may be admitted where such 

evidence is part of the history of the case and forms 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 evidence of each of the 

offenses would be admissible in a separate trial for the other. As stated 

previously, Appellant and Boyer were co-conspirators in a string of robberies 

occurring in July 2012. In August 2012, Appellant assaulted Boyer at the 

Crawford County Correctional Facility. Testimony at trial indicated that 

Appellant made statements to Boyer during the course of the assault that 

connected the assault with the prior robberies. Specifically, Boyer testified 

that Appellant stated, “I told you I was going to effing kill you,” and that the 

altercation was over Boyer giving a statement to police. N.T., 9/11/2013, at 

4-5. Two corrections officers, Sally Jean Bullis and 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 told 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 assaulting Boyer. Conversely, 

evidence of the assault would be admissible in a trial for the robbery charges 

to establish the existence of a conspiracy between Appellant and Boyer. 

Further, all of the evidence formed part of the “natural development” of the 
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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 jury was incapable of 

separating the crimes to avoid confusion. Our Supreme Court has held that 

“[w]here a trial concerns distinct criminal offenses 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 evidence 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 that 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 consolidating the informations in 

this case.

 In his second issue, Appellant argues that he is entitled to a new trial 

on the ground that the jury deliberations were inadequate, as it only took 

the jury approximately one hour and six minutes to render a verdict on 43 
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separate counts. Appellant failed to cite any legal 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 Appellant’s guilt 

or innocence on 43 separate counts, many of those counts were related as 

they pertained to each of the three separate robberies. Thus, we agree with 

the trial court that Appellant “was not denied a fair trial simply because the 

jury did not need to debate at length over the guilt or innocence of 

[Appellant] with regard to the various charges.” Trial 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 DNA 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 jury 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 because of the length of 

deliberations,” explaining that this was not a situation 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 the manifest expression that 

further deliberation would help, we cannot say seven 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. 
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police did not match Appellant’s DNA. Moreover, Appellant 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 duffel bag recovered by 

police contained a hair not belonging to Appellant and that no evidence 

proved that a shotgun recovered by police was the one 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 criminal defendant 

then files a motion for a new trial on the basis that the verdict 

was against the weight of the evidence, a trial court is not to 

grant relief unless the verdict is so contrary to the 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 decide how we 

would have ruled on the motion and then simply replace our own 

judgment for that of the trial court. Instead, this Court 

determines whether the trial court abused its discretion in 

reaching whatever decision it made on the motion, whether or 

not that decision is the one we might have made in the first 

instance. 

Moreover, when evaluating a trial court’s ruling, we keep in mind 

that an abuse of discretion is not merely an error in judgment. 

Rather, it involves bias, partiality, prejudice, ill-will, manifest 

unreasonableness or a misapplication of the law. By contrast, a 

proper exercise of discretion conforms to the law and is based on 

the facts of record. 
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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 testimony and the 

eyewitness identifications, we note that the jury is “free to believe all, part, 

or none of the evidence and to determine the credibility of the witnesses.” 

Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003). 

Moreover, the trial court considered the above arguments 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 discretion in the trial court’s 

determination. 

As a final matter, although Appellant has not raised any issues 

regarding the legality of his sentence with this Court, it is apparent that 

Appellant’s sentence implicates the United States Supreme 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’ incarceration for each of 

Appellant’s robbery convictions and a sentence of 5 to 10 years’ 

incarceration for each of Appellant’s criminal conspiracy 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 waivable and may be raised by 

this Court sua sponte”). 
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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 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 a 

replica of a firearm, whether or not the firearm or replica was 

loaded or functional, 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 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. 

(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 provided for in 

subsection (a) or to place such offender on probation or to 

suspend sentence. Nothing in this section shall prevent the 

sentencing court from imposing a sentence greater than that 

provided in this section. Sentencing guidelines promulgated 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 conspiracy convictions were 

to run concurrent with the three robbery convictions. 
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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 penalties for a 

defendant must be submitted to a fact-finder and proven beyond 

a reasonable doubt. The Alleyne decision, therefore, 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. 

Watley, 81 A.3d at 117 (footnote omitted).6

Notably, notwithstanding its observations regarding the 

constitutionality of Pennsylvania’s mandatory minimum sentencing statutes 

outlined above, the Watley Court upheld the mandatory minimum sentence 

in that case, which the trial court imposed pursuant 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 were 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 appropriately,” as the fact that 

Appellant visibly possessed a firearm that placed the victim in reasonable 

fear or death or serious bodily injury was submitted 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. 
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the jury for the criminal conspiracy to commit robbery 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 decisions 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 October 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, or 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 drug dealer, an 

accomplice or in the vicinity of the contraband) “must be pleaded 

in the indictment, and must be found by the jury beyond a 

reasonable doubt before the defendant may be subjected 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 judgment of 

sentence. 

Notably in Newman, we declined the Commonwealth’s proposed 

remedy that we remand for a sentencing jury to determine 

beyond a reasonable doubt whether the Commonwealth had 

proven the factual predicates for § 9712.1. We explained: 

[T]he Commonwealth’s assertion assumes that Subsection 

(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 Subsection 
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(a) by a preponderance of the evidence, fails. In other 

words, the Commonwealth is contending that we may 

sever and retain those parts of Section 9712.1 that are not 

constitutionally infirm.... We respectfully disagree. 

[***] 

We find that Subsections (a) and (c) of Section 9712.1 are 

essentially and inseparably connected. Following Alleyne,

Subsection (a) must be regarded as the elements of the 

aggravated crime of possessing a firearm while trafficking 

drugs. If Subsection (a) is the predicate arm of Section 

9712.1, then Subsection (c) is the “enforcement” arm. 

Without Subsection (c), there is no mechanism in place to 

determine whether the predicate of Subsection (a) has 

been met. 

The Commonwealth’s suggestion that we remand for a 

sentencing jury would require this court to manufacture 

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 prosecution 

of capital cases in Pennsylvania, there is a similar, 

bifurcated process where the jury first determines guilt in 

the trial proceeding (the guilt phase) and then weighs 

aggravating and mitigating factors in the sentencing 

proceeding (the penalty phase). However, this mechanism 

was created by the General Assembly and is enshrined in 

our statutes at 42 Pa.C.S.A. § 9711. We find that it is 

manifestly the province of the General Assembly to 

determine what new procedures must be created in order 

to impose mandatory minimum sentences in Pennsylvania 

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. 
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In Valentine, this Court addressed whether the trial court’s imposition 

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 Appellant 

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 provisions of 42 

Pa.C.S.A. § 9712(a), and whether the crime occurred in whole or 

in part at or near public transportation, for purposes of the 

mandatory minimum sentencing provisions of 42 Pa.C.S.A. 

§ 9713(a). The jury responded “yes” to both questions. 

Valentine, 2014 WL 4942256, at *8. Nevertheless, we observed in 

Valentine that 

[i]n presenting those questions to the jury, however, 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 Subsections 

(c) of both 9712 and 9713 (which permit a trial judge to 

enhance the sentence based on a preponderance of the evidence 

standard) were unconstitutional under Alleyne, and that 

Subsections (a) of 9712 and 9713 survived constitutional 

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 the 

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 connected” and that 

the statutes are therefore unconstitutional as a whole. 

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 mandatory 

minimum sentences in Pennsylvania following Alleyne.” 
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Therefore, the trial court lacked the authority to allow the jury to 

determine the factual predicates of §§ 9712 and 9713. 

Id. (citations omitted) (quoting Newman, 99 A.3d at 101-02). 

Based on the foregoing, we likewise vacate Appellant’s sentence and 

remand for resentencing without consideration of the 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