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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KWESI HUDSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2465 EDA 2018

Appeal from the Judgment of Sentence Entered August 7, 2018

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

No(s): CP-23-CR-0003657-2017

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 24, 2019

Kwesi Hudson appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Delaware County, after a jury convicted him of two 

counts of robbery1 and two counts of false imprisonment.2 Hudson challenges 

the legality of his mandatory minimum sentence. After careful review, we 

affirm.

On May 24, 2017, Trina Price was working the evening shift as a cashier 

at a CVS pharmacy in Media, Delaware County. As the store was about to 

close, Hudson approached Price with a ski mask over his face and a gun in his 

hand.3 He threatened Price with the gun, demanding to be taken to the safe. 

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1 18 Pa.C.S.A. § 3701(a)(1)(ii).

2 18 Pa.C.S.A. § 2903(a).

3 Later, the police discovered Hudson possessed a BB gun.
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Price took Hudson to the CVS shift supervisor’s office, where the safe was 

kept. Hudson forced Price into the office at gunpoint, ordered Price to lie on 

the floor, and demanded Jackie Gallen, the shift supervisor, hand over the 

money in the safe. Gallen had been in the middle of a FaceTime video 

conversation with her boyfriend, who contacted the police as he watched the 

robbery unfold. Hudson directed Gallen to take the money from the safe and 

put it in his bag. After Gallen emptied the contents of the safe, Hudson locked 

the two women in the store’s rear bathroom. Hudson then attempted to 

escape out of the store’s back door, but set off an alarm in the process. The 

police arrived shortly thereafter and arrested Hudson. 

On March 30, 2018, the jury found Hudson guilty of the abovementioned charges. On July 2, 2018, the Commonwealth notified Hudson of 

its intent to invoke mandatory minimum penalties pursuant to 42 Pa.C.S.A. § 

9714 (sentences for second and subsequent offenses). N.T. Sentencing, 

8/7/18, at 5. At Hudson’s sentencing hearing on August 7, 2018, the 

Commonwealth introduced Hudson’s certified criminal record from New 

Jersey, which noted a twenty-year sentence of incarceration for first-degree

robbery, pursuant to N.J.S.A. § 2C:15-1(a)(2). Finding the requirements of 

section 9714 satisfied, the court sentenced Hudson to consecutive ten to 
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twenty year terms of incarceration for the two robbery convictions, followed 

by nine to eighteen months’ imprisonment for false imprisonment.4

Hudson did not file post-sentence motions. He, however, timely filed a 

notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Hudson raises the following issues for our 

review:

1) Whether the mandatory sentences imposed pursuant to 42 

Pa.C.S.[A.] § 9714 for robbery [] are illegal[,] since the 

mandatory provision and its triggering facts were not charged 

in the information?

2) Whether the mandatory sentences imposed pursuant to 42 

Pa.C.S.[A.] § 9714 for robbery [] are illegal because [] 

Hudson’s prior robbery case pursuant to N.J.S.A. § 2C:15-

1(a)(2) is not a crime of violence as defined by [s]ection 

9714(g), especially where the New Jersey statute is not 

equivalent to robbery under 18 Pa.C.S.[A.] § 3701(a)(1)(ii)?

Brief of Appellant, at 5. 

Initially, we note both of Hudson’s claims are properly before this Court 

though neither was raised at sentencing or in post-sentence motions.5 Where 

“[a]pplication of a mandatory minimum sentence gives rise to illegal sentence 

concerns, even where the sentence is within the statutory limits[,] [l]egality 

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4 The court set one count of false imprisonment to run concurrently to his 

sentences for robbery and one count to run consecutively, for an aggregate 

penalty of twenty years and nine months’ to forty one years and six months’ 

incarceration. 

5 The court found Hudson waived his first claim by raising it for the first time 

in his Rule 1925(b) concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(a) opinion, 11/13/18, at 11. 
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of sentence questions are not waivable.” Commonwealth v. Watley, 81 

A.3d 108, 117–18 (Pa. Super. 2013) (en banc). Hudson’s claims fall within 

this narrow exception to traditional rules of issue preservation. Id. 

Consequently, we will address the merits of his appeal. “Issues relating to the 

legality of a sentence are questions of law. Our standard of review over such 

questions is de novo and our scope of review is plenary.” Commonwealth 

v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014) 

In his first claim, Hudson argues the prosecution was required to provide 

him with notice of its intent to seek a “second[-]strike penalty” by amending 

“the informations to include allegations of prior convictions that might 

potentially trigger a mandatory sentence.” Brief of Appellant, at 13. In 

support of his argument, Hudson relies on a line of cases where prior criminal 

convictions were required to be alleged an information or indictment. See

Brief of Appellant, at 11–15 (citing Commonwealth v. Gibson, 688 A.2d 

552, 556 (Pa. Super. 1995); Commonwealth v. Campbell, 417 A.2d 712, 

713–14 (Pa. Super. 1980); Commonwealth v. Longo, 410 A.2d 368, 503 

(Pa. Super. 1979); Commonwealth v. Moses, 271 A.2d 339, 340 (Pa. 

1970)). 

None of the above-mentioned cases involves section 9714. See

Gibson, supra at 556 (retail theft); Campbell, supra at 713–14 (retail 

theft); Longo, supra at 503 (retail theft); Moses, supra at 556 (liquor code 

violation). Rather, these cases contemplate statutes where the crime charged
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varies in accordance with the number of prior convictions the accused has 

accrued, exposing the repeat offender to a greater maximum penalty, and

thus, concomitantly requiring notice of prior convictions in the charging 

document. See e.g., 18 Pa.C.S.A. § 3929(b) (charging retail theft as 

summary offense if defendant has two or fewer prior convictions, but as thirddegree felony if three or more prior convictions); accord Commonwealth v. 

Reagan, 502 A.2d 702, 705 (Pa. Super. 1985) (“in [] these cases, the 

recidivist statute under which the defendant was sentenced provided for an 

increased maximum or an ‘enlarged’ sentence, and it was for this reason that 

the Courts concluded that prior convictions had to be alleged in the 

information or indictment.”) (emphasis in original). 

Hudson always faced a statutory maximum penalty of twenty years on 

each robbery charge, irrespective of how many robberies he had previously

committed, because they were graded as first-degree felonies.6 See 18 

Pa.C.S.A. § 1103(1) (stating maximum sentences for felonies). For retail 

theft, the statute at the crux of Hudson’s argument, the maximum penalty 

faced by a defendant shifts from 90 days when charged as a summary offense

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6 Under Pennsylvania Law, robbery can be graded as a felony of the first, 

second, or third degree. 18 Pa.C.S.A. 3701(b). That determination, however, 

occurs independently of one’s prior criminal history, instead hinging on the 

severity of the actor’s conduct. See 18 Pa.C.S.A. § 3701(a)(1), (b)(1). The 

robberies for which Hudson was convicted—robberies where an individual 

“threatens another with or intentionally puts [another] in fear of immediate 

serious bodily injury”—are always felonies of the first degree. Id. 
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for having two or fewer prior retail theft convictions to seven years when 

charged as a third-degree felony with three or more prior convictions. See 

id.; see also 18 Pa.C.S.A. § 1105 (stating maximum penalty for summary 

offenses). Consequently, Hudson’s proposition—that prior crimes of violence

need to be alleged in the charging document—rests on entirely inapposite case 

law. See Reagan, supra at 705. 

To properly consider the timing of notice, we turn to section 9714, which 

reads, in relevant part, as follows: 

(a) Mandatory sentence.--

(1) Any person who is convicted in any court of this 

Commonwealth of a crime of violence shall, if at the time of 

the commission of the current offense the person had 

previously been convicted of a crime of violence, be 

sentenced to a minimum sentence of at least ten years of 

total confinement, notwithstanding any other provision of 

this title or other statute to the contrary.

. . .

(d) 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[.]

18 Pa.C.S.A. § 9714(a), (d). 

By the text of the statute itself, it is clear that reasonable notice comes 

not at charging, but “after conviction and before sentencing.” Id. This Court 

has found the Commonwealth’s notice of intent under section 9714 reasonable
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when communicated as few as three days before sentencing. 

Commonwealth v. Taylor, 831 A.2d 661, 667 (Pa. Super. 2003). 

Hudson received notice on July 2, 2018—over one month before he was

sentenced on August 7, 2018. N.T. Sentencing, 8/7/18, at 5. Hudson does 

not contest the fact that he received notice prior to sentencing. Brief of 

Appellant, at 12 (“After the verdict, but prior to sentencing, the prosecution

notified Mr. Hudson of its intent to invoke mandatory second strike penalties 

pursuant to 42 Pa.C.S. § 9714(a)(1)[.]”). Such circumstances fall well with 

this Court’s conception of “reasonable notice” under section 9714; 

consequently, Hudson’s first claim fails. See Taylor, supra at 667. 

In his second argument, Hudson claims his mandatory sentences are 

illegal because his prior first-degree robbery conviction does not qualify as a 

crime of violence as defined by section 9714(g). 

Section 9714(g), in relevant part, reads as follows: 

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

violence” means . . . robbery as defined in 18 Pa.C.S.[A.] § 

3701(a)(1)(i), (ii) or (iii) . . . or an equivalent crime under the 

laws of this Commonwealth in effect at the time of the commission 

of that offense or an equivalent crime in another jurisdiction.

42 Pa.C.S.A. § 9714(g) (emphasis added). 

To determine whether a crime in another state is equivalent to a 

Pennsylvania offense, a court must consider “the elements of the foreign 

offense in terms of classification of the conduct proscribed, its definition of the 

offense, and the requirements for culpability.” Commonwealth v. Northrip, 
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985 A.2d 734, 740 (Pa. 2009) (citation omitted). Additionally, a court shall 

consider the “underlying public policy behind the two criminal statutes.” 

Commonwealth v. Ward, 856 A.2d 1273, 1277 (Pa. Super. 2004). We note 

“the offenses do not identically have to mirror each other[,] but must be 

substantially equivalent to invoke operation of 42 Pa.C.S.[A.] § 9714.” Id. 

Under New Jersey law, “[a] person is guilty of robbery if, in the course 

of committing a theft, he . . . [t]hreatens another with or purposefully puts 

him in fear of immediate bodily injury[.]” N.J.S.A. § 2C:15-1(a)(2). 

Moreover, robbery is graded as a crime of the first degree in New Jersey, “if 

in the course of committing the theft, the actor attempted to kill anyone, or 

purposefully inflicts or attempts to inflict serious bodily injury, or is armed 

with, or uses or threatens the immediate use of a deadly weapon.” N.J.S.A. 

§ 2C:15-1(b). Under the relevant Pennsylvania statute, “[a] person is guilty 

of robbery, if in the course of committing a theft, he . . . threatens another 

with or intentionally puts him in fear of immediate serious bodily injury[.]” 18 

Pa.C.S.A. § 3701(a)(ii). Both crimes carry maximum penalties of twenty 

years’ imprisonment. See 18 Pa.C.S.A. § 1103; see also N.J.S.A. § 2C:43-

6. 

This Court recently found New Jersey’s definition of first-degree robbery 

serves as a crime of violence under section 9714, equivalent to Pennsylvania’s 

definitions of robbery in subsections 3701(a)(1)(i), (ii), and (iii). 

Commonwealth v. Rose, 172 A.3d 1121, 1132–33 (Pa. Super. 2017). This 
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decision rested on the fact that the New Jersey and Pennsylvania statutes 

“include nearly identical elements and grading for robbery offenses of the first 

degree. . . . Additionally, the statutes are aimed at preventing the same 

criminal activity, indicating that the public policy rationale for both statutes is 

identical.” Id. (emphasis added). 

The difference between the New Jersey and Pennsylvania statutes, upon 

which Hudson focuses, is that the New Jersey statute punishes placing another 

in fear of immediate bodily injury, whereas the Pennsylvania statute requires 

placing another in fear of immediate serious bodily injury. See Brief of 

Appellant, at 19. Hudson, however, ignores the fact that he was convicted of 

first-degree robbery in New Jersey. Commonwealth Exhibit 1, at 1. This is a 

conviction he could have received only if he attempted “to kill anyone, or 

purposefully inflict[ed] or attempt[ed] to inflict serious bodily injury, or [was] 

armed with, or use[d] or threaten[ed] the immediate use of a deadly weapon.” 

N.J.S.A. § 2C:15-1(b). Taken in light of the full context of his previous 

conviction, we find no reason to deviate from our decision in Rose. See Rose, 

supra at 1132–33; see also Northrip, supra at 740 (“[Section 9714] neither 

directs nor requires the court to consider every possible set of circumstances

in order to determine whether the mandatory sentence applies.”). 

Consequently, Hudson’s second claim fails. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/24/19