J-S45007-16 

*Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

VIKRAM YAMBA, 

 Appellant No. 890 WDA 2015 

Appeal from the PCRA Order of May 21, 2015 

In the Court of Common Pleas of Fayette County 

Criminal Division at No(s): CP-26-CR-0001536-2012 

BEFORE: OLSON, DUBOW AND PLATT,* JJ. 

MEMORANDUM BY OLSON, J.: FILED AUGUST 4, 2016 

 

Appellant, Vikram Yamba, appeals from the order entered on May 21, 

2015, denying his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We vacate the order of the PCRA 

court, vacate the judgment of sentence, and remand for resentencing. 

 On January 8, 2013, a jury found Appellant guilty of two counts of 

robbery, two counts of aggravated assault, and one count each of simple 

assault, recklessly endangering another person, and attempt to commit theft 

by unlawful taking.1 See N.T. Trial, 1/8/13, at 131-134. The convictions 

arose out of Appellant’s armed entry into a convenience store, in an attempt 

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1

 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv), 2702(a)(1) and (4), 2701(a)(3), 

2705, and 901(a), respectively. 
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to take money from the register. Upon learning that there was no cash in 

the register, Appellant fired two shots in random directions before fleeing 

through the front door. An employee heard a third gunshot and watched the 

glass in the door shatter after they left. 

 After conviction and prior to sentencing, the Commonwealth filed a 

“Notice of the Commonwealth’s Intention to Proceed Under the Mandatory 

Sentencing Provision of 42 Pa.C.S.A. [§] 9712.” Within the notice, the 

Commonwealth informed Appellant that, in accordance with 42 Pa.C.S.A. 

§ 9712, it intended to seek the mandatory minimum sentence of five years 

in prison, as Appellant “visibly possessed a firearm . . . that placed the 

victim in reasonable fear of death or serious bodily injury during the 

commission of the offense.” Commonwealth’s Notice, 1/10/13, at 1; see 

also 42 Pa.C.S.A. § 9712(a). 

On February 12, 2013, the trial court held a sentencing hearing and, 

during the hearing, the trial court specifically held the elements of Section 

9712 were satisfied. See N.T. Sentencing, 2/12/13, at 10. Thus, at this 

point, the trial court was statutorily required to sentence Appellant to the 

mandatory minimum sentence of five years in prison. See 42 Pa.C.S.A. 

§ 9712(a) (“any person who is convicted in any court of this Commonwealth 

of a crime of violence as defined in section 9714(g) . . . shall, if the person 

visibly possessed a firearm . . . that placed the victim in reasonable fear of 

death or serious bodily injury, during the commission of the offense, be 
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sentenced to a minimum sentence of at least five years of total 

confinement”); 42 Pa.C.S.A. § 9712(c) (“[t]here 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)”). Moreover, the trial court did, 

in fact, sentence Appellant to a term of five to 12 years in prison for 

Appellant’s aggravated assault conviction – which satisfied Section 9712, as 

the trial court sentenced Appellant “to a minimum sentence of at least five 

years of total confinement.” 42 Pa.C.S.A. § 9712(a). Further, the trial court 

signed a “Guideline Sentence Form,” where the trial court specifically noted 

that it sentenced Appellant to the mandatory minimum sentence of 60 

months in prison, under Section 9712, for visibly possessing a firearm. 

Guideline Sentence Form, 2/13/13, at 1. Nevertheless, during the 

sentencing hearing, the trial court attempted to justify its sentence on a 

number of different grounds. During the sentencing hearing, the trial court 

declared: 

The [trial] court notes for the record that this sentence may 

be justified in a number of fashions[.] First, the sentence 

would fall in the aggravated range of the sentencing 

guidelines should the deadly weapon enhancement 

provision not be applied. And the court feels justified in 

sentencing in the aggravated range of the sentencing 

guidelines because the offense occurred while on active 

supervision, serving two sentences in the federal district 

court[.] 

Furthermore, should the deadly weapon provision be 

applied, this would fall in the standard range if the deadly 

weapon enhancement provision were used. We have 

listened to [Appellant’s] argument that there is insufficient 
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evidence to sustain the deadly weapon enhancement 

provision; however, we disagree and believe there is 

sufficient evidence in the record to sustain the use of the 

deadly weapon enhancement provision[.] 

Finally, the sentence could be justified pursuant to the 

mandatory sentencing provisions of 42 Pa.C.S.A. § 9712. 

Again, we’ve listened to [Appellant’s] argument that the 

victim was not actually in fear at the time of the incident. 

However, we having heard her testimony we believe the 

interpretation is, and inferences from that testimony, also 

would support a conclusion that while perhaps in shock at 

the initial happening of the incident, within seconds and 

upon realization that the glass door had been shot/broken 

by a bullet, that that fear set in and was recognizable by the 

alleged victim[.] 

Accordingly, under any of the three aforementioned 

theories, the sentence of not less than five [] to [no] more 

than [12] years [for aggravated assault] is justified by the 

sentencing guidelines. 

N.T. Sentencing Hearing, 2/12/13, at 9-10 (some internal capitalization 

omitted). 

The trial court imposed no further penalty for Appellant’s remaining 

convictions. Id. at 10. 

A prior panel of this Court summarized the procedural history of this 

case as follows: 

Appellant filed a post-sentence motion on February 26, 

2013, which the trial court denied. Appellant filed a notice 

of appeal with this Court on May 16, 2013. . . . On 

December 27, 2013, this [C]ourt dismissed the notice of 

appeal for failure of counsel to file a brief on Appellant’s 

behalf. On January 21, 2014, Appellant filed a pro se

petition pursuant to the [PCRA]. The trial court appointed 

counsel, who filed an amended PCRA petition on March 6, 

2014, seeking reinstatement of Appellant’s direct appeal 

rights. The trial court granted the PCRA petition and 
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Appellant filed a nunc pro tunc notice of appeal on March 

27, 2014. 

Commonwealth v. Yamba, 106 A.3d 157 (Pa. Super. 2014) (unpublished 

memorandum) at 3-4. This Court affirmed Appellant’s judgment of sentence 

on August 11, 2014. Id. at 1-12. Appellant did not file a petition for 

allowance of appeal to our Supreme Court. 

 On November 7, 2014, Appellant filed a timely, pro se PCRA petition. 

The PCRA court appointed counsel to represent Appellant and counsel filed 

an amended PCRA petition on Appellant’s behalf. Within the amended 

petition, Appellant claimed that his sentence was illegal, as he was 

sentenced to a mandatory minimum term of incarceration under 42 

Pa.C.S.A. § 9712 and, in Alleyne v. United States, ___ U.S. ___, 133 

S.Ct. 2151 (2013), the United States Supreme Court effectively rendered 

Section 9712 unconstitutional.2 Amended PCRA Petition, 1/15/15, at 1-3; 

see also Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) 

(holding that Alleyne rendered 42 Pa.C.S.A. § 9712 wholly 

unconstitutional). 

On May 21, 2015, the PCRA court held a hearing on Appellant’s PCRA 

petition and, at the conclusion of the hearing, the PCRA court denied 

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2

 We note that the United States Supreme Court decided Alleyne on June 

17, 2013, which was after Appellant was sentenced but while Appellant’s 

direct appeal was pending before this Court. 
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Appellant’s petition on the record. N.T. PCRA Hearing, 5/21/15, at 10. As 

the PCRA court later explained in its opinion: 

Review of the sentencing proceedings transcript dated 

February 12, 2013 clearly establishes that, while 

acknowledging both the deadly weapon enhancement and 

the mandatory sentencing requirement of [Section] 9712 in 

existence at the time, [the trial court] expressly did not rely 

on either of those provisions in determining [Appellant’s] 

sentence. . . . 

The sentence imposed was within the statutory sentencing 

guidelines, albeit in the aggravated range, and the reasons 

for that sentence appear on the record as required.

PCRA Court Opinion, 6/17/15, at 1 (some internal capitalization omitted). 

Appellant filed a timely notice of appeal. Appellant presents the 

following issue for our review: 

Whether the PCRA court erred in denying [Appellant’s] 

petition when [Appellant] was sentenced according to the 

mandatory sentencing provisions of 42 Pa.C.S.A. § 9712? 

Appellant’s Brief at 3. 

 We observe our well-established standard of review: “In reviewing the 

denial of PCRA relief, we examine whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Fears, 

86 A.3d 795, 803 (Pa. 2014) (internal quotations and citations omitted). 

Alleyne challenges implicate the legality of a sentence. A

challenge to the legality of a sentence may be entertained 

as long as the reviewing court has jurisdiction. An illegal 

sentence must be vacated. 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. 
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Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (internal 

citations, quotations, and corrections omitted). 

 In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States 

Supreme Court held: “[o]ther than the fact 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 489. Further, in Alleyne, the United States 

Supreme Court expanded “Apprendi’s basic jury-determination rule to 

mandatory minimum sentences.” Alleyne, ___ U.S. at ___, 133 S.Ct. at 

2167 (Breyer, J., concurring). Specifically, the Alleyne court held that, 

where an “aggravating fact” increases a mandatory minimum sentence, “the 

fact is an element of a distinct and aggravated crime. [The fact] must, 

therefore, be submitted to the jury and found beyond a reasonable doubt.” 

Alleyne, 133 S.Ct. at 2162-2163. 

As this Court has held, Alleyne rendered 42 Pa.C.S.A. § 9712 wholly 

unconstitutional. Valentine, 101 A.3d at 812. However, Appellant was 

sentenced on February 12, 2013 and Alleyne was not decided until June 17, 

2013. Therefore, at the time Appellant was sentenced, 42 Pa.C.S.A. § 9712 

was still in force.3 The relevant portions of the statute read: 

§ 9712. Sentences for offenses committed with firearms 

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3

 Again, the United States Supreme Court decided Alleyne while Appellant’s 

direct appeal was pending before this Court. 
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(a) Mandatory sentence.-- . . . any person who is 

convicted in any court of this Commonwealth of a crime of 

violence as defined in section 9714(g) . . . 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. 

(d) Appeal by Commonwealth.--If a sentencing court 

refuses to apply this section where applicable, the

Commonwealth shall have the right to appellate review of 

the action of the sentencing court. The appellate court shall 

vacate the sentence and remand the case to the sentencing 

court for imposition of a sentence in accordance with this 
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section if it finds that the sentence was imposed in violation 

of this section.

42 Pa.C.S.A. § 9712. 

Thus, under the law that existed at the time Appellant was sentenced, 

where the Commonwealth filed notice that it intended to proceed under 

Section 9712, and where the trial court found that the elements of Section 

9712 were established by a preponderance of the evidence, the trial court 

had no authority but to impose a sentence in accordance with the 

provisions of that section. 42 Pa.C.S.A. § 9712(c). In other words, when 

triggered by the Commonwealth’s notice, Section 9712 automatically limited 

the trial court’s discretion in sentencing enumerated felonies committed with 

a firearm. Commonwealth v. Foster, 17 A.3d 332, 347 (Pa. 2011); 

Commonwealth v. Pittman, 528 A.2d 138, 143 (Pa. 1987). 

Prior to sentencing in this case, the Commonwealth filed notice that, in 

accordance with 42 Pa.C.S.A. § 9712, it intended to seek the mandatory 

minimum sentence of five years in prison, as Appellant “visibly possessed a 

firearm . . . that placed the victim in reasonable fear of death or serious 

bodily injury during the commission of the offense.” Commonwealth’s 

Notice, 1/10/13, at 1; see also 42 Pa.C.S.A. § 9712(a). Aggravated assault 

is an enumerated crime of violence to which Section 9712 applies. 42 

Pa.C.S.A. § 9714(g). Further, during the sentencing hearing, the trial court 

determined that: Appellant visibly possessed a firearm; Appellant’s 

possession of the firearm placed another in reasonable fear of death or 
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serious bodily injury; and, such possession took place during the commission 

of the offense. See N.T. Sentencing, 2/12/13, at 9-10. Therefore, the only 

sentencing authority vested in the trial court was to sentence Appellant “to a 

minimum sentence of at least five years of total confinement.” 42 Pa.C.S.A. 

§ 9712(a). As such, the trial court had no discretion to alter the “floor” of 

Appellant’s sentence, and any other justification it may have offered for 

Appellant’s sentence is immaterial.4 Moreover, and as was explained above, 

the trial court signed a “Guideline Sentence Form,” where the trial court 

specifically noted that it sentenced Appellant to the mandatory minimum 

sentence of 60 months in prison, under Section 9712, for visibly possessing 

a firearm. Guideline Sentence Form, 2/13/13, at 1. 

Therefore, in this case, the trial court sentenced Appellant to the 

mandatory minimum sentence under Section 9712, and Appellant’s sentence 

is clearly illegal. As such, we vacate the PCRA court’s order, vacate 

Appellant’s judgment of sentence, and remand this case for resentencing. 

Order vacated. Judgment of sentence vacated. Case remanded for 

resentencing. Jurisdiction relinquished. 

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4

 Further, it does not follow that, by sentencing Appellant to a term of five 

to 12 years in prison (as opposed to a term of five to ten years in prison), 

the trial court was exercising its own discretion without regard for the 

mandatory sentence under Section 9712. See N.T. PCRA Hearing, 5/21/15, 

at 6. Section 9712 expressly permits sentences greater than the mandatory 

minimum and does not set an upward boundary on the term of years. 42 

Pa.C.S.A. § 9712(c) (“Nothing in this section shall prevent the sentencing 

court from imposing a sentence greater than that provided in this section”). 
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Judge Dubow joins this Memorandum. 

Judge Platt concurs in the result. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/4/2016