J-S61028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GREGORY STEVENS

Appellant No. 1684 MDA 2014

Appeal from the Judgment of Sentence of August 21, 2014

In the Court of Common Pleas of Luzerne County

Criminal Division at No.: CP-40-CR-0003409-2013

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.: FILED DECEMBER 11, 2015

Gregory Stevens appeals his August 21, 2014 judgment of sentence. 

We affirm the judgment of sentence in part, and we vacate it in part. 

Based upon events that occurred on December 21, 2013, which we 

detail immediately below, Stevens was charged with robbery, theft by 

unlawful taking, simple assault, and three counts of criminal conspiracy.1 

Prior to trial, Stevens filed a motion to suppress evidence relating to his outof-court identification and evidence of conversations that were intercepted 

while he was incarcerated on these charges. Following a hearing, the trial 

court denied the motion. Stevens waived his right to a jury trial, and the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3701, 3921, 2701, and 903, respectively.
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parties agreed to incorporate the testimony from the suppression hearing 

into the trial record. The Commonwealth produced additional testimony 

from the victim of the robbery. At the conclusion of trial, the trial court 

found Stevens guilty of all of the charges.

The following is a summary of the evidence that was produced at the 

suppression hearing and the bench trial. 

On December 21, 2013, Burgit’s Taxi service in Wilkes-Barre, 

Pennsylvania, dispatched Henry Robinson to 28 North Grant Street to service 

a customer that had called and requested a ride. When Robinson arrived at 

that location, five individuals got into Robinson’s cab. Robinson drove the 

individuals to their desired location. However, when they arrived there, only 

three of the individuals exited the cab. Two males remained in the cab, and 

requested to be taken to a nearby Turkey Hill convenience store. Robinson 

agreed to continue on to that location.

When they arrived at the Turkey Hill, one of the men exited the cab 

and went into the store. The man, wearing a hoodie and marked with 

tattoos on his face, tried to purchase cigarettes from the store, but to no 

avail because he did not have identification proving that he was old enough 

to buy cigarettes. The man returned to the cab and asked Robinson to take 

them back to the original drop-off location. 

When they arrived back at the first location, one of the men, later 

identified as Stevens, got out of the cab, opened the front passenger door, 

and struck Robinson in the face with a gun. The two men hit Robinson two 
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or three more times in the head. While doing so, they stole Robinson’s 

watch, cell phone, ring, and wallet. The men then removed Robinson from 

the cab and forced him to lie on the ground while they rummaged through 

the cab for additional items to steal. They then told Robinson to stand up 

and run away. Robinson fled to a nearby Rite Aid pharmacy, where he 

called for police assistance.

Sergeant Phil Holbrook and Corporal Dennis Monk, after learning the 

details of the robbery, went to the Turkey Hill store and watched the 

surveillance video. Shortly thereafter, they received information that 

another call had been placed to Burgit’s Taxi seeking a ride from 66 Kirby 

Avenue, which was located across the street from the original drop-off 

location. Sgt. Holbrook and Cpl. Monk believed that the call may have been 

made by the individuals that had perpetrated the robbery. 

Cpl. Monk knew the family that resided at that residence. He 

attempted to contact the house, but no one answered. He then called the 

owner of the house, Carol Kephart. Kephart told Cpl. Monk that only her two 

children were permitted in the home, because she was out of town. She 

consented to police entering the residence and to a subsequent search once 

inside.

The police located eight people inside of the home. The police 

handcuffed the eight people for the officers’ safety. The police decided to 

bring Robinson to the house and have him attempt to identify either of the 

robbers. Robinson sat in a police car that was parked approximately fifty 
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yards from the front door of the residence. Sgt. Holbrook instructed another 

officer to bring each individual to the front door, one at a time. Sgt. 

Holbrook removed the handcuffs from each individual as they came to the 

door and told each person that they were free to leave. When Stevens came 

to the door, uncuffed and informed that he too was free to leave, Robinson 

immediately recognized him as one of the men who had robbed him. 

Robinson did not see Stevens at any time with handcuffs on his wrists. 

Stevens was then stopped, and arrested. Robinson stated that he was 

absolutely certain that Stevens was one of the robbers. The police searched 

the residence and found many of the items that were taken from Robinson 

and the taxi. The police also found a firearm. 

Once at the police station, the police provided Stevens with Miranda2

warnings. Stevens denied participating in the robbery. He asserted that, on 

the night in question, he had consumed some drugs and had fallen asleep. 

He later admitted to the police that they had done a good job investigating 

the crime, but that they would have done even better if they had caught the 

other guy as well. When Stevens was processed at the jail for intake 

purposes, the police found $160.00 in twenty-dollar bills in Stevens’ sock.

While in jail awaiting trial, Stevens made several phone calls that were 

recorded, and ultimately intercepted and reviewed by the police. The jail 

____________________________________________

2 Miranda v. Arizona, 384 U.S. 436 (1966). 
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posted signs that informed the inmates that their phone calls may be 

intercepted, monitored, or divulged to law enforcement authorities. Stevens 

was provided with an identification number for use during phone calls and a 

release form, which he signed, indicating the same. Captain Mark 

Rockovich, who was the head of intelligence and security at the jail, emailed 

the assistant district attorney with the following information:

We do not have any written guidelines regarding monitoring 

phone calls or visits. I am the only one in the prison that has 

access to listen to phone calls directly. To assist in 

investigations regarding matters of security for the prison, the 

Warden or Deputy Warden will direct me to provide prison staff 

with recordings for review. The procedure to obtain recordings 

for law enforcement are made pursuant to Title 18 Section 5704, 

(14)(1)(C), which permits disclosure of such intercepted 

recorded material in response to a Court Order or in the 

prosecution or investigation of any crime. 

Simply put, the prison will listen when we believe there may be a 

threat to security of our facility and we will give copies to law 

enforcement with a court order or if they are investigating a 

crime. 

In the case of Gregory Stevens, a court order was signed by the 

Honorable Judge Gartley on October 28th, 2013, directing me to 

“turn over all of the telephone recordings, including visitor 

communications from inmate Gregory Stevens, Jr. from the date 

of incarceration, September 22nd, 2013 to October 29th of 2013. 

The second recording provided to the Fairview Township Police 

was from October 29th of 2013 to January 8th of 2014.[3]

____________________________________________

3 All of the evidence pertaining to the intercepted recordings, including 

the signs and email, were introduced into the record via stipulation by the 

parties. 
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In the recordings, Stevens discusses the charges against him, as well as the 

gun that was used during the robbery and assault. Furthermore, Stevens 

admits on the recordings that he should not have pistol-whipped Robinson. 

As noted, the trial court convicted Stevens of all charges. In doing so, 

the trial court also specifically concluded beyond a reasonable doubt that 

Stevens used a firearm during the commission of the robbery. On August 

21, 2014, Stevens appeared for sentencing. Stevens argued that the trial 

court was precluded from applying the deadly weapon enhancement in the 

sentencing guidelines, inter alia, because of the United States Supreme 

Court’s decision in Alleyne v. United States, 133 S.Ct 2151 (2013). The 

trial court rejected Stevens’ arguments, and applied the deadly weapon 

enhancement in sentencing Stevens. The court sentenced him to an 

aggregate sentence of sixty months to one hundred and twenty months in 

prison, to be followed by twenty-four months of probation. 

On September 2, 2014, Stevens filed a motion to modify his sentence, 

which the trial court denied by an order dated September 5, 2014, and filed 

on September 9, 2014. On October 1, 2014, Stevens filed a notice of 

appeal.4 In response, the trial court directed Stevens to file a concise 

____________________________________________

4 On October 24, 2014, this Court issued a rule to show cause on 

Stevens as to why this appeal should not be quashed as untimely. Stevens 

had appealed orders that had not been entered into the docket, and, thus, 

the appeal appeared to be untimely. Following subsequent orders from this 

Court, the trial court entered the orders on the docket, which demonstrate 

(Footnote Continued Next Page)
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statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Following an extension of time, Stevens filed a concise statement. On 

December 22, 2014, the trial court issued an opinion pursuant to Pa.R.A.P. 

1925(a).

Stevens raises the following six issues for our consideration:

1. Whether the trial court erred by denying [Stevens’] motion to 

suppress where [Stevens] was illegally seized by officers who 

lacked probable cause for an arrest and, in the alternative, 

reasonable suspicion for an investigatory detention and all 

evidence resulting from said illegal seizure, including the 

identification, were fruit of the poisonous tree? [Stevens] 

was illegally seized in violation of the Fourth Amendment to 

the United States Constitution and Article I, Section 8 of the 

Pennsylvania Constitution.

2. Whether the trial court erred by denying [Stevens’] motion to 

suppress where [Stevens] was under arrest and denied his 

right to an attorney at the in-person line up, in violation of 

the Sixth Amendment to the United States Constitution and 

Article I, Section 9 of the Pennsylvania Constitution, and all 

evidence resulting from said illegal line up, including the 

identification, were fruit of the poisonous tree?

3. Whether the trial court erred by refusing to suppress 

intercepted recordings of [Stevens] where the 

superintendent, warden, or a designee of the superintendent 

or warden or other chief administrative official of the Luzerne 

County Correctional Facility failed to promulgate guidelines to 

implement the provisions of 18 Pa.C.S. § 5704(14)?

4. Whether [Stevens’] sentence is illegal because the 

Pennsylvania deadly weapon enhancement to the sentencing 

guidelines (204 Pa.Code § 303.10(a)(2)) is unconstitutional 

under Alleyne v. United States as violative of [Stevens’] 

(Footnote Continued) _______________________

that Stevens’ appeal was timely. There is no jurisdictional impediment to 

our review of this case.
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right to a jury trial pursuant to the Sixth Amendment to the 

United States Constitution and Article I, Section 9 of the 

Pennsylvania Constitution?

5. Whether the trial court erred by applying the Pennsylvania 

deadly weapon enhancement to the sentencing guidelines 

(204 Pa.Code § 303.10(a)(2)) where the Commonwealth 

amended the information to make possession of a weapon an 

element of the offense and the deadly weapon enhancement 

shall not be applied where such element is part of the 

statutory definition of the crime?

6. Whether the Commonwealth failed to present evidence 

sufficient to demonstrate beyond a reasonable doubt that 

[Stevens] committed separate conspiracies to commit 

robbery, theft by unlawful taking, and simple assault, rather 

than one conspiracy, where the totality of the circumstances 

indicate that only a single conspiracy occurred?

Brief for Stevens at 2-4 (numbering added for ease of discussion and 

disposition). 

Stevens’ first three issues arise from the trial court’s denial of his pretrial suppression motion. Our standard of review for such claims is as 

follows:

In addressing a challenge to a trial court’s denial of a 

suppression motion, we are limited to determining whether the 

factual findings are supported by the record and whether the 

legal conclusions drawn from those facts are correct. Since the 

Commonwealth prevailed in the suppression court, we may 

consider only the evidence of the Commonwealth and so much of 

the evidence for the defense as remains uncontradicted when 

read in the context of the record as a whole. Where the record 

supports the factual findings of the trial court, we are bound by 

those facts and may reverse only if the legal conclusions drawn 

therefrom are in error. 

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013) (citation 

omitted). Our scope of review in suppression matters includes only the 
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suppression hearing record, and excludes any evidence elicited at trial. See 

In re L.J., 79 A.3d 1073, 1085 (Pa. 2013). 

In his first issue, Stevens alleged that he was seized in violation of the 

Fourth Amendment to the United States Constitution and Article I, Section 8 

of the Pennsylvania Constitution when the police entered the residence on 

Kirby Avenue and detained everyone inside. Stevens contends that the 

interaction between him and the police constituted an arrest, but it was not 

supported by probable cause. In the alternative, Stevens maintains that, if 

the encounter was an investigatory detention, reasonable suspicion also was 

lacking. 

Our resolution of this claim necessarily depends upon the nature of the 

encounter between Stevens and the police. Interactions between police and 

citizens are broken down into three categories: mere encounters, 

investigative detentions, and custodial detentions. Commonwealth v. 

DeHart, 725 A.2d 633, 636 (Pa. Super. 2000). Each level requires a 

distinct level of justification, depending upon the nature of the interaction 

between the police and the citizen. Id. A mere encounter can be any 

formal or informal interaction, and carries no official compulsion to stop and 

respond. Thus, it does not require any level of suspicion. Commonwealth 

v. Guzman, 44 A.3d 688, 692 (Pa. Super. 2012). An investigative 

detention carries with it an official compulsion to stop and respond, and, 

while temporary, must be justified by “specific and articulable facts creating 

a reasonable suspicion that the suspect is engaged in criminal activity.” 
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Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (quoting 

Dehart, 725 A.2d at 636). An arrest, otherwise known as a custodial 

detention, must be supported by probable cause. Id. 

An encounter becomes an arrest when, under the totality of the 

circumstances, a police detention becomes so coercive that it 

functions as an arrest. The numerous factors used to determine 

whether a detention has become an arrest are the cause for the 

detention, the detention’s length, the detention’s location, 

whether the suspect was transported against his or her will, 

whether physical restraints were used, whether the police used 

or threatened force, and the character of the investigative 

methods used to confirm or dispel suspicions. 

Commonwealth v. Stevenson, 894 A.2d 759, 770 (Pa. Super. 2006) 

(citations omitted). 

On the other hand:

“An investigative detention occurs when a police officer 

temporarily detains an individual by means of physical force or a 

show of authority for investigative purposes.” Commonwealth 

v. Smith, 904 A.2d 30, 35 (Pa. Super. 2006) (quoting 

Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 

2005)). In other words, in view of all the circumstances, if a 

reasonable person would have believed that he was not free to 

leave, then the interaction constitutes an investigatory 

detention. See Commonwealth v. Peters, 642 A.2d 1126, 

1129 (Pa. Super. 1994) (quoting Commonwealth v. Harper, 

611 A.2d 1211, 1215 (Pa. Super. 1992)); Commonwealth v. 

Hill, 874 A.2d 1214, 1218-19 (Pa. Super. 2005) (quoting 

Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa. Super. 

2004)). An investigatory detention triggers the constitutional 

protection of the Fourth Amendment to the United States 

Constitution, Article I, Section 8 of the Pennsylvania 

Constitution, and the prerequisites for such a detention as set 

forth in Terry v. Ohio, 392 U.S. 1, 23–26, (1968); Smith, 904 

A.2d at 35 (quoting Barber, 889 A.2d. at 592).
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An investigative detention is lawful if supported by reasonable 

suspicion. Commonwealth v. Sands, 887 A.2d 261, 269 (Pa. 

Super. 2005) (quoting Hill, 874 A.2d at 1217). “To meet the 

standard of reasonable suspicion, the officer must point to 

specific and articulable facts which, together with the rational 

inferences therefrom, reasonably warrant the intrusion.” Smith, 

904 A.2d at 35 (quotation omitted). In addition, “we must look 

to the totality of the circumstances to determine whether the 

officer had reasonable suspicion that criminal activity was afoot.” 

Id. at 35–36 (quoting Barber, 889 A.2d at 593). An 

investigative detention may last “as is necessary to confirm or 

dispel such suspicion.” Commonwealth v. LaMonte, 859 A.2d 

495, 500 (Pa. Super. 2004) (quoting Commonwealth v. 

Strickler, 757 A.2d 884, 889 (Pa. 2000)).

Commonwealth v. Cauley, 10 A.3d 321, 325-26 (Pa. Super. 2010) 

(citations modified; footnote omitted). 

Under the circumstances of this case, no reasonable person would 

have felt free to leave. However, that factor does not distinguish an 

investigatory detention from an arrest. Both types of encounters curtail an 

individual’s freedom of movement. We must consider the other factors 

listed above. To do so, we first must review the facts elicited at the 

suppression hearing.

On December 21, 2013, Stevens and four of his acquaintances called 

and requested a taxi. The taxi, driven by Robinson, picked them up and 

dropped three of them off in a lot adjacent to 66 Kirby Avenue. Stevens and 

another man remained in the cab, and requested a ride to a convenience 

store. They then requested that Robinson drive them back to the location 

across from 66 Kirby Avenue. There, they beat Robinson with a gun and 

took his belongings.
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The police investigated the robbery. At approximately 6:00 a.m. the 

next morning, a mere seven hours after the robbery, someone called the 

same taxi company from 66 Kirby Avenue and requested transportation. 

The police suspected, due to the proximity in time and location from the 

robbery, that the same individuals that had requested the cab earlier that 

night had placed the call. 

The police surrounded the residence and attempted to contact people 

inside the home. Initially unsuccessful, the police contacted the owner of 

the residence, who indicated that only her two children were permitted to be 

in the residence when she was away. She also consented to the police 

entering the home. Because they believed that the perpetrators of the 

robbery may be inside, and because they knew that a firearm had been used 

in the robbery, the police officers entered the residence with their weapons 

drawn and announced their presence. The police found eight individuals 

inside of the home. The police informed them that they were there to 

investigate the robbery. The individuals then became angry and hostile, 

yelling at the officers. Some of the individuals ignored orders to remain 

where they were, and spread out throughout the residence. 

After the individuals continued to ignore orders to remain in the living 

room, the police handcuffed each of them, searched them for weapons, and 

ordered them to remain in the living room until they received further 

instruction from the officers. Cpl. Monk then spoke with each individual, 
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requesting their names and dates of birth. Stevens was one of the 

individuals that was detained in the living room.

Having considered these facts, and the applicable legal factors and 

standards, we conclude that Stevens’ detention at 66 Kirby Avenue was an 

investigative detention. Undeniably, Stevens was detained against his will 

and handcuffed. But, those are only two factors, and neither is dispositive. 

Stevens, and the others, were detained to investigate whether any of the 

individuals were involved in the robbery. The cause of the detention was not 

to permanently detain anyone, or to effectuate a formal arrest, but rather to 

investigate. Stevens was not detained for an unreasonable amount of time, 

nor was he transported in any meaningful way to another location. The 

detention occurred inside a residence, one in which he was not permitted to 

be, not in a police car or at the police station. No force or threat of force 

was utilized against Stevens. Of course, the police had their service 

weapons drawn during entry, but that clearly was for their safety given the 

nature of the crime that they were investigating and the fact that a gun was 

used in that crime. Finally, nothing about the character or the investigative 

methods used by the police compellingly demonstrates that the encounter 

rose to the level of an arrest.

To the contrary, the character of the investigation demonstrated that 

the detention was not permanent, but rather was temporary and for the 

purpose of determining the identity of the individuals inside the home and 

whether they had participated in the robbery. For this reason in particular, 
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and in conjunction with the reasons above, Stevens’ encounter with the 

police was an investigatory detention.

Having so determined, we next must decide whether the investigative 

detention was supported by reasonable suspicion. As noted, within a span 

of seven hours, Stevens and his friends requested a taxi to a lot across the 

street from 66 Kirby Avenue, the taxi driver had been beaten with a gun and 

robbed, and then the same taxi service received a call from 66 Kirby 

Avenue. The police reasonably concluded that these events were connected, 

and possessed the requisite reasonable suspicion to justify the detention. 

Hence, the trial court correctly concluded that Stevens was not 

unconstitutionally detained.

In his second issue, Stevens maintains that Robinson’s on-scene 

identification of him exiting 66 Kirby Avenue was unconstitutional, because, 

according to Stevens, he was entitled to have counsel at the time of his 

arrest and subsequent identification. Stevens primarily relies upon 

Commonwealth v. Minnis, 458 A.2d 231 (Pa. Super. 1983), and 

Commonwealth v. Richman, 320 A.2d 351 (Pa. 1974), both of which 

stand for the proposition that the right to counsel attaches to identification 

confrontations and procedures following warrantless arrests. However, 

neither of these cases applies in the instant case, and his argument is 

unavailing.

In Minnis, this Court held that “[i]n Pennsylvania, the right to counsel 

attaches at the time of arrest and exists for identification confrontations 
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occurring after arrest, except prompt on-the-scene confrontations.” Minnis, 

158 A.2d at 234. Similarly, in Richman, the Pennsylvania Supreme Court 

noted that “[t]o allow uncounseled lineups between warrantless arrests and 

preliminary arraignment would only encourage abuse of the exigent 

circumstances exception and under-cut our strong policy requiring warrants 

whenever feasible.” Richman, 320 A.2d at 354. Both holdings make clear 

that an actual arrest is a prerequisite to triggering the right to counsel for 

line-up purposes. However, at the time of the identification in this case, 

Stevens had not yet been arrested.

In the previous discussion, we determined that the events that 

occurred inside of the residence did not amount to an arrest. Shortly after 

those events, the police transported Robinson to the scene and placed him in 

a police cruiser that was parked at the end of the driveway, approximately 

fifty yards from the front door. The occupants of the home, including 

Stevens, then were taken to the front door. Their handcuffs were removed. 

Thus, Robinson never saw them restrained in any way. They were then told 

that they were free to leave. Each walked out of the door and began 

walking away from the premises. However, when Stevens exited the house, 

Robinson immediately identified him as one of the perpetrators of the 

robbery. It was only then that Stevens was placed under arrest.

Because Stevens had not yet been arrested at the time of the 

identification, the right to counsel was not implicated, and he is not entitled 

to the benefit of either of the two cases that he principally relies upon, 
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Minnis and Richman. The trial court did not err by denying Stevens’ 

suppression motion on this claim.

In his third argument, Stevens claims that the trial court erred by not 

suppressing the statements that he made during conversations that occurred 

on the telephone when he was incarcerated prior to trial. Specifically, 

Stevens maintains that the statements should have been suppressed 

because no relevant person promulgated guidelines to comply with the 

relevant portion of Pennsylvania’s Wiretap Act, 18 Pa.C.S.A. §§ 5701–82. 

For the reasons set forth immediately below, Stevens is not entitled to relief. 

Section 5704(14) of the Wiretap Act provides, in pertinent part, that:

It shall not be unlawful and no prior court approval shall be 

required under this chapter for: ...

(14) An investigative officer, a law enforcement officer or 

employees of a county correctional facility to intercept, 

record, monitor or divulge any telephone calls from or to 

an inmate in a facility under the following conditions:

(i) The county correctional facility shall adhere to the 

following procedures and restrictions when intercepting, 

recording, monitoring or divulging any telephone calls 

from or to an inmate in a county correctional facility as 

provided for by this paragraph:

(A) Before the implementation of this paragraph, all 

inmates of the facility shall be notified in writing 

that, as of the effective date of this paragraph, their 

telephone conversations may be intercepted, 

recorded, monitored or divulged.

(B) Unless otherwise provided for in this paragraph, 

after intercepting or recording a telephone 

conversation, only the superintendent, warden or a 

designee of the superintendent or warden or other 

chief administrative official or his or her designee, or 
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law enforcement officers shall have access to that 

recording.

(C) The contents of an intercepted and recorded 

telephone conversation shall be divulged only as is 

necessary to safeguard the orderly operation of the 

facility, in response to a court order or in the 

prosecution or investigation of any crime.

18 Pa.C.S.A. § 5704(14)(1)(A-C). The Act further mandates that “[t]he 

superintendent, warden or a designee of the superintendent or warden or 

other chief administrative official of the county correctional system shall 

promulgate guidelines to implement the provisions of this paragraph for 

county correctional facilities.” Id. § 5704(14)(iv). 

From what we can glean from his argument, Stevens believes that 

“promulgate” as used in subsection 5704(14)(iv) means written. In other 

words, Stevens contends that, because none of the enumerated parties 

created a written protocol for intercepting jail phone calls, any statements

obtained via those calls must be suppressed. We need not answer that 

question specifically, because even if we assume, arguendo, that no relevant 

person in this case “promulgated” guidelines, Stevens still has not 

demonstrated that suppression is an available, or a justifiable, remedy. 

Notably, Stevens does not claim that the purported error in this case 

was constitutional in nature. Thus, we turn to the section of the Wiretap 

Act, specifically 18 Pa.C.S. § 5721.1, which governs the available remedies 

for nonconstitutional violations of the Wiretap Act:

(b) Motion to exclude.--Any aggrieved person who is a party 

to any proceeding in any court, board or agency of this 
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Commonwealth may move to exclude the contents of any wire, 

electronic or oral communication, or evidence derived therefrom, 

on any of the following grounds:

(1) Unless intercepted pursuant to an exception set forth 

in section 5704 (relating to exceptions to prohibition of 

interception and disclosure of communications), the 

interception was made without prior procurement of an 

order of authorization under section 5712 (relating to 

issuance of order and effect) or an order of approval under 

section 5713(a) (relating to emergency situations) or 

5713.1(b) (relating to emergency hostage and barricade 

situations).

(2) The order of authorization issued under section 5712 or 

the order of approval issued under section 5713(a) or 

5713.1(b) was not supported by probable cause with 

respect to the matters set forth in section 5710(a)(1) and 

(2) (relating to grounds for entry of order).

(3) The order of authorization issued under section 5712 is 

materially insufficient on its face.

(4) The interception materially deviated from the 

requirements of the order of authorization.

(5) With respect to interceptions pursuant to section 

5704(2), the consent to the interception was coerced by 

the Commonwealth.

(6) Where required pursuant to section 5704(2)(iv), the 

interception was made without prior procurement of a 

court order or without probable cause.

18 Pa.C.S. § 5721.1(b)(1-6). Pursuant to subsection 5721.1(e), “[t]he 

remedies and sanctions described in this subchapter with respect to the 

interception of wire, electronic or oral communications are the only judicial 

remedies and sanctions for nonconstitutional violations of this subchapter 

involving such communications.” 18 Pa.C.S. § 5721.1(e). 
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Subsection 5721.1(b) delineates the six nonconstitutional grounds for 

which suppression is an available remedy. If a defect in a wiretap 

interception is not a constitutional error or is not one of those six grounds, a 

trial court may not suppress evidence that resulted from the interception. 

As noted, Stevens does not raise a constitutional argument. Thus, he 

must demonstrate that the error for which he complains falls within one of 

the six enumerated categories. However, Stevens presents no argument 

whatsoever that any of the six grounds applies. In fact, Stevens does not 

cite subsection 5721.1 at all. Consequently, even if his principal argument 

were meritorious, he has not demonstrated that suppression would be the 

correct remedy, and, therefore, has not proven that he is entitled to that 

form of relief. 

In his fourth issue, Stevens contends that his sentence, which the trial 

court formulated using the deadly weapon enhancement rubric in the 

sentencing guidelines, is illegal. Stevens maintains that the application of 

the enhancement was unconstitutional pursuant to the United States 

Supreme Court’s decision in Alleyne, wherein the Court held that any fact 

that increases the mandatory minimum sentence for crime is an “element” 

of the crime, not a “sentencing factor,” that must be submitted to a jury to 

determine the validity thereof. Alleyne, 133 S.Ct. at 2162. Stevens 

recognizes that, in Commonwealth v. Ali, 112 A.3d 1210 (Pa. Super. 

2015), this Court already has held that Alleyne has no application to the 

school zone or youth sentencing enhancements. We so held because:
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[t]he enhancements do not bind a trial court to any particular 

sentencing floor, nor do they compel a trial court in any given 

case to impose a sentence higher than the court believes is 

warranted. They require only that a court consider a higher 

range of possible minimum sentences. Even then, the trial court 

need not sentence within that range; the court only must 

consider it. Thus, even though the triggering facts must be 

found by the judge and not the jury—which is one of the 

elements of an Apprendi [v. New Jersey, 120 S.Ct. 2348 

(2000)] or Alleyne analysis—the enhancements [] are not 

unconstitutional under Alleyne.

Ali, 112 A.3d at 1226. Stevens urges us to reconsider the Ali analysis as it 

applies to the deadly weapon enhancement. 

We do not have the authority, nor the inclination, to overrule Ali. 

Moreover, the deadly weapon enhancement, like the school and youth 

enhancements, imposes no mandatory minimum sentence. Like those other 

enhancements, it only directs the trial court to consider a different range of 

potential minimum sentences by adding months of incarceration to the low 

and high ends of the guideline range. The trial court retains the discretion to 

fashion an individual sentence, and is not required to sentence an individual 

within that specified range. Consequently, Alleyne has no application to 

this case, and Stevens’ claim necessarily fails. 

Stevens also argues that the trial court erroneously applied the deadly 

weapons enhancement because “the Commonwealth made ‘with a deadly 

weapon’ one of the statutory elements of robbery with which [] Stevens was 

charged.” Brief for Stevens at 31-32. Indeed, and confusingly, the 

Commonwealth added that language to the definition of robbery in the 

criminal information. Stevens also correctly notes that, pursuant to the 
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sentencing guidelines, “[t]here shall be no Deadly Weapon Enhancement for 

. . . any other offense for which possession of a deadly weapon is an 

element of the statutory definition.” 204 Pa.Code § 303.10(a)(3)(ix). 

However, this proscription refers only to the elements of the “statutory 

definition.” The definition of robbery in the Crimes Code does not include 

the element of the use of a deadly weapon. See 18 Pa.C.S. § 3701. The 

Commonwealth cannot change or alter that definition simply by adding 

language to a particular criminal information. The proscription does not 

refer to the language used by the Commonwealth in a criminal information, 

nor does it make such an alteration available. Stevens does not cite any 

case law that stands for the proposition that, for purposes of the application 

of the enhancement, the “statutory definition” of a crime is based upon the 

manner in which Commonwealth frames a charge in a criminal information, 

and we are aware of none. Stevens has not demonstrated that he is entitled 

to relief on this claim. 

In his final claim, Stevens challenges the sufficiency of the evidence 

presented by the Commonwealth to establish that he entered into three 

separate conspiracies, one each for robbery, theft, and simple assault. Our 

standard of review is well-settled:

The standard we apply . . . is whether viewing all the evidence 

admitted at trial in the light most favorable to the verdict winner, 

there is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In applying 

[the above] test, we may not weigh the evidence and substitute 

our judgment for the fact-finder. In addition, we note that the 

facts and circumstances established by the Commonwealth need 
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not preclude every possibility of innocence. Any doubts regarding 

a defendant’s guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

[trier] of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced, is free to believe all, part 

or none of the evidence. 

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting 

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).

Stevens concedes that the evidence was sufficient to prove beyond a 

reasonable doubt that he was guilty of conspiracy to commit robbery. See

Brief for Stevens at 34 (“In the instant matter, it is clear that the evidence 

was sufficient to demonstrate only that a single conspiracy existed between 

[] Stevens and the other suspect to carry out actions aimed at removing 

property from the cab driver by force.”). However, he maintains that only 

the robbery conspiracy existed, and that the evidence did not prove 

otherwise. The Commonwealth agrees. In its brief, the Commonwealth 

“concedes that there was insufficient evidence to establish separate 

conspiracies for theft and simple assault.” Brief for the Commonwealth at 

16. 

Because of the Commonwealth’s concession, we vacate Stevens’ 

judgment of sentence as to conspiracy to commit theft and conspiracy to 

commit simple assault. We agree with the Commonwealth and Stevens that 
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the evidence was insufficient to prove separate, individual conspiracies to 

commit each of those crimes. Nonetheless, we need not remand for 

resentencing. Stevens only was sentenced on the conspiracy to commit 

robbery conviction. The trial court concluded that the conspiracies to 

commit theft and simple assault merged with the conspiracy to commit 

robbery. Hence, there is no reason to remand for resentencing, because our 

decision to vacate those two crimes does not upset the trial court’s 

sentencing scheme in any way.

Judgment of sentence affirmed in part, vacated in part. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/11/2015