J-S12009-15

*

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 to 
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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 

walked 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 hour 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 to 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. 
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Appellant failed to timely appeal. However, on August 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 recently 

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. The 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 the 
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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 rejected 

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 

Pennsylvania'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 illegal 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 waivable 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 attempting 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, the 
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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 801 (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 

 

constitutional 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 as 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. 
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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 various 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. Love, 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. 2007); 

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-waivable 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 certain mandatory minimum 

sentencing claims present legality of sentence issues); cf. Commonwealth 

v. Taylor, __ A.3d __ (Pa. 2014) (filed November 20, 2014) (failure to order 
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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 possessing 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, overwhelming, 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 

statutory 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 questions. 

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).
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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 decision 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 that 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 

proximity 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 firearms mandatory 
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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 facts 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 

occurred 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 mandatory 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 are 

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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2015