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* Former Justice specially assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. BRIAN HUGHES, Appellant No. 2478 EDA 2013

Appeal from the Judgment of Sentence June 5 , 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0006179

- 2012

BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ. MEMORANDUM BY BOWES, J.: FILED MARCH 18, 2015 Brian Hughes appeals from the aggregate judgment of sentence of five to ten years incarceration imposed by the trial court after it found him guilty of three counts of aggravated assault, discharging a firearm into an occupied structure, carrying a firearm on public street in Philadelphia, and possession of an instrument of crime (“PIC”). Since Appellant was sentenced to a mandatory minimum sentence of five to ten years pursuant to 42 Pa.C.S. § 9712, we are constrained to vacate his judgment of sentence. On May 3, 2012, Appellant fired numerous shots with a nine millimeter handgun into the home of Carl Geter, who resided with his wife, children, and grandchildren. Earlier in the evening, Appellant had confronted Mr. Geter over a purported $80 debt owed to him. Appellant threatened toJ

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“knock [Mr. Geter] the fuck out.” N.T., 6/5/13, at 14; Id . at 18. In addition, Appellant threatened to shoot Mr. Geter. Mr. Geter’s stepdaughter and several other girls then began to get into an argument. After police

w alked into the area, the verbal dispute temporarily dissipated. However, several hours later, while Mr. Geter, his wife, and son and two grandchildren were inside, Appellant opened fire at the home on two occasions within twenty minutes to a half an hou r of each other. Mr. Geter’s wife witnessed Appellant shooting at her home from across the street on the second occasion. A television, windows, and a decorative figure were all shot. In addition, furniture and curtains were riddled with bullet holes. Police recovered thirteen shell casings from the scene outside. Those shell casings matched bullet fragments located in Mr. Geter’s home. Both the casings and bullets were fired from a nine millimeter Luger semi

- automatic pistol. Appellant proceeded t o a non - jury trial. The court found him guilty of the aforementioned charges on June 5, 2013. On that same date, the court imposed concurrent five to ten year sentences on each aggravated assault
count. 1 The court also sentenced Appellant to concurrent sentences of two to four years imprisonment for discharging a firearm, and one to two years for carrying a firearm on the public streets of Philadelphia. It did not impose a sentence on the PIC charge.

1 Appellant waived his right to a presentence investigation.J

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Appellant failed to timely appeal. However, on Au gust 1, 2013, Appellant filed a PCRA petition seeking the reinstatement of his appellate rights. The court granted that petition on August 16, 2013. This timely nunc pro tunc direct appeal ensued. The court directed Appellant to file and
serve a Pa.R.A. P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, but did not raise the instant issue. Appellant now raises one contention on appeal, “Should this matter should [sic] be remanded for resentencing because under the rece ntly decided case of Commonwealth v. Newman , 2014 PA Super 178 (Aug. 20, 2014), the sentencing scheme employed by the lower court was unconstitutional?” Appellant’s brief at 4. Appellant correctly asserts that this Court has held that mandatory
minimum sentencing statutes have been declared unconstitutional and sentences based on those statutes are illegal. He also maintains that, since his claim relates to the legality of his sentence, the issue is not waived. The Commonwealth, in misleading fashion, argues that based on this Court’s decision in Commonwealth v. Watley , 81 A.3d 108 (Pa.Super. 2013) ( en banc ), his claim is waived. Specifically, the Commonwealth takes entirely out of context separate quotes from that decision and meshes them together. T he Commonwealth’s brief states, “an Alleyne claim regarding ‘the constitutionality of a statute can be waived’ where ‘appellant did not preserve any challenge to his mandatory minimum sentence . . . or theJ

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constitutionality of § 9712.1[.]” Commonwealth’s brief at 6. However, what this author actually wrote in Watley was,

[Watley] did not preserve any challenge to his mandatory minimum sentence, his jury trial rights, or the constitutionality of § 9712.1, likely because similar challenges had been rejecte d based on prior United States Supreme Court decisions. The constitutionality of a statute can be waived. See Commonwealth v. Hartz , 367 Pa.Super. 267, 532 A.2d 1139, 1142

– 1143 (1987) ( en banc ) (Cirillo, P.J. concurring) (collecting cases); see also Commonwealth v. Bavusa , 574 Pa. 620, 832 A.2d 1042 (2003); Commonwealth v. Wallace , 368 Pa.Super. 255, 533 A.2d 1051 (1987). Nonetheless, while we are cognizant that Alleyne was a Sixth Amendment jury trial rights case, it necessarily implicated Pennsylva nia's legality of sentencing construct since it held that it is improper to sentence a person to a mandatory minimum sentence absent a jury's finding of facts that support the mandatory sentence. Application of a mandatory minimum sentence gives rise to i llegal sentence concerns, even where the sentence is within the statutory limits. See Commonwealth v. Foster , 960 A.2d 160 (Pa.Super. 2008), affirmed, 609 Pa. 502, 17 A.3d 332 (2011) (OAJC); Hopkins , supra at 821. Legality of sentence questions are not wai vable and may be raised sua sponte by this Court. Watley , supra 117

- 118 (footnote omitted). 2

2 Writing solely for myself, my own position is that there is a critical distinction between pre

- Alleyne mandatory cases, where judges were sentencing based on essential facts connected to the crime that were not determined by a jury or agreed to by the defendant via stipulation or a plea, and post

- Alleyne sentencing cases. In the latter situation, I believe any Alleyne issue should be preserved because the courts and Commonwealth were attempti ng to comply with that decision, thereby eliminating the constitutional jury trial problem. Hence, the grounds as to why a sentence would be constitutionally infirm are simply not the same in the pre

- Alleyne cases. Phrased differently, in the pre

- Alleyne cases, as here, there is an alleged and, in some cases, actual constitutional violation, based on an intervening change in the law, in combination with a lack of discretionary authority on the part of the sentencing judge. In post

- Alleyne cases, theJ

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Indeed, this Court has since opined that various Alleyne

- type challenges to mandatory minimum sentences present non

- waivable legality of sentence questions. See Commonwealth v. Vargas , 2014 PA Super 289 ( en banc ); Commonwealth v. Newman , 99 A.3d 86 (Pa.Super. 2014) ( en banc ); Commonwealth v. Ferguson , 2015 PA Super 1; Commonwealth v. Fennell , 105 A.3d 13 (Pa.Super. 2014); Commonwealth v. Valentine , 101 A.3d 80 1 (Pa.Super. 2014); Commonwealth v. Cardwell , 105 A.3d 748 (Pa.Super. 2014); Commonwealth v. Bizzel , 2014 PA Super 267 ; Commonwealth v. Wolfe , 106 A.3d 800 (Pa.Super. 2014); Commonwealth v. Lawrence , 99 A.3d 116 (Pa.Super. 2014); Commonwealth v. Matteson , 96 A.3d 1064

cons titutional jury trial violation is generally no longer a concern. The absence of discretion in sentencing does not automatically equate to an illegal sentencing issue. See Commonwealth v. Schutzues , 54 A.3d 86 (Pa.Super. 2012); Commonwealth v. Sarapa , 13 A.3d 961 (Pa.Super. 2011); Commonwealth v. Robinson , 931 A.2d 15 (Pa.Super. 2007) ( en banc ) (Bender, J., dissenting). For example, in Commonwealth v. Foster , 960 A.2d 160 (Pa.Super. 2008), affirmed , 17 A.3d 332 (Pa. 2011) (OAJC), in addition to the lack of judicial discretion, there was a violation of the statutory language interpreted by intervening Pennsylvania Supreme Court case law. I add that in recent cases I have criticized this Court’s severability and separation of powers analysis relative to mandatory minimums, Commonwealth v. Bizzel , 2014 PA Super 267 (Bowes, J., concurring); Commonwealth v. Wolfe , 106 A.3d 800 (Pa.Super. 2014) (Bowes, J., concurring) (joined by Jenkins, J.), and suggested that we re

- visit our legality of sentence paradigm a s it relates to Alleyne mandatory minimum questions. See Wolfe , supra . I continue to adhere to those views, but I am currently bound by precedent to the contrary.J

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(Pa.Super. 2014); Commonwealth v. Thompson , 93 A.3d 478 (Pa.Super. 2014); Watley , supra ; Commonwealth v. Munday , 78 A.3d 661 (Pa.Super. 2013). 3

3 In addition to Alleyne

- related issues, in a host of other cases, we have construed var ious mandatory minimum sentencing claims as legality of sentence questions. See Commonwealth v. Akbar , 91 A.3d 227 (Pa.Super. 2014); Commonwealth v. Armstrong , 74 A.3d 228 (Pa.Super. 2013); Commonwealth v. Baker , 72 A.3d 652 (Pa.Super. 2013); Commonwealth v. Hopkins , 67 A.3d 817 (Pa.Super. 2013); Commonwealth v. Hawkins , 45 A.3d 1123 (Pa.Super. 2012); Commonwealth v. Stein , 39 A.3d 365 (Pa.Super. 2012), disapproved on other grounds by , Commonwealth v. Hanson , 82 A.3d 1023 (Pa. 2013); Commonwealth v. Stokes , 38 A.3d 846 (Pa.Super. 2012); Commonwealth v. Poland , 26 A.3d 518 (Pa.Super. 2011); Commonwealth v. Kittrell , 19 A.3d 532 (Pa.Super. 2011); Commonwealth v. Carpio - Santiago , 14 A.3d 903 (Pa.Super. 2011); Commonwealth v. Madeira , 982 A.2d 81 (Pa.Super. 2009); Commonwealth v. McKibben , 977 A.2d 1188 (Pa.Super. 2009); Commonwealth v. Foster , 960 A.2d 160 (Pa.Super. 2008), affirmed , 17 A.3d 332 (Pa. 2011) (OAJC); Commonwealth v. Rush , 959 A.2d 945 (Pa.Super. 2008); Commonwealth v. L ove , 957 A.2d 765 (Pa.Super. 2008); Commonwealth v. Diamond , 945 A.2d 252 (Pa.Super. 2008); Commonwealth v. Stafford , 932 A.2d 214 (Pa.Super. 2007); Commonwealth v. Harley , 924 A.2d 1273 (Pa.Super. 2007); Commonwealth v. Johnson , 920 A.2d 873 (Pa.Super. 20 07); Commonwealth v. Littlehales , 915 A.2d 662 (Pa.Super. 2007); Commonwealth v. Bongiorno , 905 A.2d 998 (Pa.Super. 2006); Commonwealth v. Bell , 901 A.2d 1033 (Pa.Super. 2006); Commonwealth v. Edrington , 780 A.2d 721 (Pa.Super. 2001); Commonwealth v. Wynn , 760 A.2d 40 (Pa.Super. 2000), reversed on other ground , 786 A.2d 202 (Pa. 2001); see also Commonwealth v. Vasquez , 744 A.2d 1280 (Pa. 2000) (Commonwealth’s issue on appeal, regarding failure to impose a mandatory fine under 18 Pa.C.S. § 7508, was non - waiv able illegal sentencing claim); Commonwealth v. Eisenberg , 98 A.3d 1268 (Pa. 2014) (constitutional challenge to mandatory minimum fine was illegal sentencing question); Commonwealth v. Jacobs , 900 A.2d 368 (Pa.Super. 2006) ( en banc ) (noting in dicta that c ertain mandatory minimum sentencing claims present legality of sentence issues); cf

. Commonwealth v. Taylor , __ A.3d __ (Pa. 2014) (filed November 20, 2014) (failure to orderJ

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In Watley , we sua sponte raised and rejected an Alleyne issue. We held that non

- compliance with Alleyne , which had not yet been decided at the time of Watley’s trial or sentencing, was harmless and that the defendant’s sentence was not illegal. There, the defendant was convicted by the jury of both possessin g a firearm illegally and possession with intent to deliver drugs. A firearm and drugs were found together in the front passenger area of the car. The applicable mandatory sentencing statute related to firearms being located in close proximity to drugs. Relying on United States Supreme Court precedent discussing harmless error for Apprendi violations, see United States v. Cotton , 535 U.S. 625 (2002), we held that, because the facts necessary to determine the mandatory sentence were undisputed, overwhelm ing, and decided by the jury, no Alleyne error occurred. Subsequently, in Munday and Thompson , mandatory drug and alcohol assessment prior to sentencing, in violation of statut ory language, presented legality of sentence issue).
In Commonwealth v. Williams , 787 A.2d 1085 (Pa.Super. 2001), a panel of this Court did hold that a constitutional challenge to 42 Pa.C.S. § 9712, based on it violating the defendant’s jury trial rights , was a discretionary sentencing claim. That decision is no longer valid in light of decisions such as Newman . Of course, in Commonwealth v. Lawrence , 99 A.3d 116 (Pa.Super. 2014), this Court held that constitutional challenges based on equal protection and ex post facto claims, relative to a mandatory minimum statute, did not present non

- waivable illegal sentencing questions. We add that our Supreme Court did grant allowance of appeal to consider whether Alleyne claims were illegal sentencing question s. Commonwealth v. Johnson , 93 A.3d 806 (Pa. 2014). Subsequently, the Supreme Court dismissed that appeal as improvidently granted. Commonwealth v. Johnson , 2014 WL 7335218 (filed Dec. 24, 2014).J

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this Court concluded that an Alleyne claim was non

- waivable and meritorious where the jury did not decide the facts necessary to impose the mandatory sentence. In Munday , Thompson , and Watley , Alleyne had been decided after the defendants were sentenced.
Newman involved a case where the defendant’s trial, sentencing and original appeal were decided prior to Alleyne . However, shortly after the original panel d ecision in Newman , the United States Supreme Court handed down Alleyne , and the defendant successfully sought re

- argument. The Newman Court not only treated the Alleyne argument as an illegal sentencing claim, but also reached an issue of severability th at had not been leveled below. Like Munday , and unlike Watley , the jury’s verdict in
Newman did not reveal that it found the facts needed to prompt the mandatory. As in Watley , the triggering facts for the mandatory sentence related to whether a firearm was in close proximity to drugs. Although recognizing that an Alleyne issue could be considered under a harmless error analysis, the Newman Court found that the failure of the jury to expressly determine whether the gun in that case was in close proximit y to drugs precluded a harmless error finding. The Newman majority further declined to remand for the empaneling of a second sentencing jury, finding that such a procedure would violate the separation of powers doctrine. In doing so, it ruled that the fi rearms mandatoryJ

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statute, 42 Pa.C.S. § 9712.1, was unconstitutional in its entirety and not merely the section governing a court’s burden of proof.
In Valentine , supra , this Court expanded Newman to prevent the Commonwealth from submitting to the jury fa cts not included as an element of the offense but set forth in the mandatory sentencing statutes. There, in a post
- Alleyne case, the Commonwealth amended its criminal information to include whether the defendant visibly possessed a gun and the offense

occ urred in or near a place of public transportation. Without objection, the jury was presented with specific jury interrogatories as to those facts. The jury found each fact beyond a reasonable doubt. The Valentine Court ruled that Newman rendered both ma ndatory sentencing statutes in question therein, 42 Pa.C.S. § 9712 and 42 Pa.C.S. § 9713, unconstitutional in their entirety. Subsequently, in Commonwealth v. Ferguson , 2015 PA Super 1, this Court reiterated that sentences pursuant to 42 Pa.C.S. § 9712 ar e illegal. Accordingly, based on Newman , Valentine , and Ferguson , we must vacate Appellant’s judgment of sentence. Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Shogan, J. joins. Fitzgerald, J. concurs in the result.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/18/2015