J-S23022-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

TORREY LEE THOMPSON 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 2606 EDA 2022 

Appeal from the Judgment of Sentence Entered September 12, 2022 

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0002121-2020 

BEFORE: STABILE, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED AUGUST 19, 2024 

Appellant, Torrey Lee Thompson, appeals from the judgment of 

sentence entered in the Montgomery County Court of Common Pleas, following 

his jury trial convictions for robbery, conspiracy, theft by unlawful taking, and 

criminal use of a communication facility.1 We affirm. 

The trial court set forth the relevant facts and procedural history of this 

case as follows: 

Just after 7:00 p.m. on Friday, October 25, 2019, a woman 

dressed in a purple and black hijab and Muslim attire exited 

a blue Mercury Mountaineer SUV with after-market rims on 

Cheltenham Avenue, walked across a parking lot, and 

entered the CVS Store at 45 Cheltenham Avenue in 

Cheltenham Township, Montgomery County. For 

approximately [one hour and forty] minutes, this woman 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 3921(a), and 7512(a), respectively. 
J-S23022-24 

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walked around inside, as well as in and out, of the store, 

asking questions of the [19-year-old] cashier, Ayonne 

Sledge, and the [20-year-old] supervisor, Zakiya Nubutare. 

When she was not speaking directly with the two CVS 

employees, the woman was on her cell phone. During this 

time, the Mercury Mountaineer circled the blocks around the 

CVS Store approximately three (3) or four (4) times, 

stopping occasionally in various store parking lots in the 

shopping center before continuing to circle. 

At around 8:40 p.m., the woman in the Muslim attire walked 

out of the store for the last time and, shortly thereafter, Ms. 

Nubutare went outside to close the gate in front of the store 

and start the store closing process. When Ms. Nubutare reentered the store, she saw another person dressed in a 

female Muslim headdress and attire inside. Thinking this 

was a frequent customer, she asked how she could assist 

the person. Ms. Nubutare then realized that it was not the 

regular customer but, rather, a black male, strong, husky, 

over 200 pounds, and approximately [six] feet tall. He 

motioned as if he had a gun and told her to take him to the 

office and to give them the money. Ms. Sledge believed the 

man had a weapon and she was afraid. 

Ms. Nubutare led that first man up the stairs to the office 

and the store safe, as he had instructed. She also believed 

the man could have a gun on him. The second man walked 

in shortly after the first, and Ms. Sledge and Ms. Nubutare 

described him as a black male, approximately 5’ 9”, shorter 

than suspect number 1, and wearing a gray hoodie tied up 

to his nose and covering his face. Ms. Sledge explained that 

suspect number 2 walked right up to them, like he knew 

why he was there and what to do. Ms. Nubutare noticed the 

second man when he appeared in the office with a bag and 

both men instructed her to put everything in the bag. At 

one point after Ms. Nubutare had opened the door to the 

office, she felt something pointed up against her mid-lower 

back that did not feel like a gun or a finger, but she believed 

that she and other co-workers in the store were at risk or in 

danger. After Ms. Nubutare finished loading the bag with 

the cash from the safe, the men told her to count to 50 and 

not to call the police as they were leaving. The CVS 

employees quickly called the police, and an officer arrived 

within five (5) minutes. Neither woman was able to get a 
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good look at the men’s faces, as only their eyes, part of their 

nose, and some skin around their eyes were visible because 

of their clothing. 

After receiving a report of an armed robbery, Patrol Officer 

Timothy Filoon of the Cheltenham Township Police 

Department arrived at the CVS Store at around 8:50 p.m. 

on October 25, 2019, and was met by two female employees 

who were visibly shaken, and a male pharmacist. In 

speaking with the employees, Officer Filoon learned that the 

two men had taken approximately $3,304 in cash and that 

there was store surveillance video. Officer Filoon proceeded 

to the CVS Store office and reviewed the video off of the 

security surveillance system. While reviewing the video, 

Officer Filoon simultaneously radioed through Montgomery 

County Dispatch to give other officers a description of the 

two...men and what they were wearing. The Officer 

described the first suspect as a black male, unknown age, 

approximately 5 feet, 10 inches to 6 feet tall, medium to 

larger build and wearing a Muslim-style head covering that 

covered all but his eyes, and a long black Muslim-style dress 

that went to his ankles, a green, long cardigan that went to 

his knees, and white, Nike sneakers. Officer Filoon 

described the second suspect as a black male, unknown age, 

approximately 5’ 8” to 5’ 9” in height, medium build, slightly 

smaller than suspect number one and wearing a gray-andblack hooded sweatshirt with black drawstrings and a 

Batman logo. This second suspect had pulled the hood over 

his face really tight, with a black cap rim sticking out from 

under the hood. His hands were covered for the most part 

with the sweatshirt sleeves and he was wearing lightcolored pants and dark boots or shoes. 

While reviewing the surveillance video of inside the CVS 

Store office, Officer Filoon could see that, among other 

things, suspect number 1 in the Muslim attire had a greeting 

card in his hand. Officer Filoon also contacted others, 

including the property manager, to inquire about the 

potential of other surveillance video of the outside from 

other stores in the shopping center. Officer Filoon learned 

not only that other stores should have video but also that a 

GPS tracking device was in the cash taken from the CVS by 

the suspects, and that the device was active and tracking 

into Philadelphia. The Officer learned that the device 
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tracked to the 5600 block of Appletree Street in Philadelphia 

and that uniformed Philadelphia police officers had 

responded to that location when the tracker stopped 

moving. Officer Filoon then drove to the 5600 block of 

Appletree Street to focus his attention on a blue Mercury 

Mountaineer SUV with after-market rims. 

Philadelphia Police Officer Terrelle Greene and his partner 

received the information that the GPS tracker was pinging 

around 5643 and 5645 Appletree Street. Upon arrival at 

around 9:50 p.m., Officer Greene got out of his unmarked 

police vehicle and, while walking down the street, placed his 

hand on the hood of each car that was parked on the block. 

The Officer found only two...vehicles that were still warm to 

the touch. The first was occupied by a man in a FedEx 

uniform who had just returned home from work. The second 

was the blue Mercury Mountaineer. Officer Greene, and 

other Philadelphia police officers, watched the vehicle for a 

couple of hours and spoke with anyone they encountered on 

the street or on their porch to try to identify its owner, to no 

avail. Eventually, Officer Greene received the flash 

information sent by Officer Filoon regarding the clothing the 

two...robbers were wearing. Using his flashlight to look 

inside the Mountaineer, Officer Greene saw the distinctive 

Batman hooded sweatshirt. 

Once Officer Filoon arrived on Appletree Street at 

approximately 3:00 a.m. on October 26, 2019, he took 

photographs of the street and the Mountaineer parked in 

front of a rowhouse at 5658 Appletree Street. After shining 

a flashlight into the vehicle, the Officer could see several 

items that were very similar to items he saw on the 

surveillance video at the CVS Store. These items included 

a gray and black hooded sweatshirt with black drawstrings 

and a Batman logo, a pair of white Nike sneakers, a pair of 

dark boots or shoes, a black Adidas baseball-style cap, black 

fabric that appeared consistent with a Muslim style dress, 

and the corner of a greeting card. Officer Filoon escorted 

the vehicle being transported by Flourtown Sunoco Towing 

from Appletree Street to the Cheltenham Township Police 

Impound lot. 

Cheltenham Township Police Department officers worked 

diligently with the Pennsylvania State Police and the 
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Montgomery County Detective Bureau to investigate this 

robbery. Subsequent fingerprint and DNA analysis tied 

Appellant and co-defendant Dante Salley to the Mercury 

Mountaineer as well as to various objects inside of the 

vehicle. Once law enforcement identified one of the 

fingerprints as belonging to Appellant, officers learned 

Appellant’s address was 5645 Appletree Street, less than 

one hundred (100) feet across the street from where the 

Mountaineer was found parked approximately an hour after 

the robbery. In addition to the CVS Store GPS tracker 

detailing the route the vehicle containing the cash took from 

the Store to the 5600 block of Appletree Street in West 

Philadelphia, subsequent cell phone and tower analysis 

placed cell phones owned or utilized by the co-defendants 

in the vicinity of the CVS Store before the robbery. Law 

enforcement officers were also able to link phone calls made 

during this time between Appellant’s cell phone and the 

female in Muslim attire inside of the CVS Store leading up 

to the robbery. 

As lead investigator, Cheltenham Township Police 

Department Detective Matthew Gonglik learned that 

Appellant had been arrested on another matter in December 

of 2019 and was currently incarcerated at the Montgomery 

County Correctional Facility. Detective Gonglik filed a 

criminal complaint with an affidavit of probable cause 

against Appellant on March 5, 2020. 

(Trial Court Opinion, filed 6/20/23, at 1-8) (internal citations and quotation 

marks omitted). 

Trial commenced on May 31, 2022. At the conclusion of the trial, the 

jury convicted Appellant of the aforementioned offenses. On September 12, 

2022, the court sentenced Appellant to an aggregate term of 121⁄2 to 25 years 

of incarceration, which included a mandatory minimum under Section 42 

Pa.C.S.A. § 9714(a)(1), based on Appellant’s prior conviction for a crime of 

violence. 

Appellant timely filed a notice of appeal on October 10, 2022. The trial 
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court subsequently ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Following several 

motions for extension of time, which the trial court granted, Appellant timely 

filed his concise statement on January 23, 2023. On June 21, 2023, the trial 

court appointed conflict counsel for Appellant. Appellant subsequently filed 

an application for remand and additional time to review the record, which this 

Court granted on August 2, 2023. 

On September 25, 2023, Appellant filed a petition to file post-sentence 

motions nunc pro tunc along with proposed post-sentence motions nunc pro 

tunc. The trial court granted the petition and, on November 13, 2023, heard 

argument on the post-sentence motions. The trial court denied relief on 

December 13, 2023. On December 18, 2023, the court directed Appellant to 

file a supplemental concise statement, which Appellant filed on December 21, 

2023. 

Appellant raises the following issues for our review: 

1. Did the trial court err in finding sufficient evidence existed 

to establish Appellant’s identity to convict him of robbery, 

criminal conspiracy, theft, and criminal use of a 

communication facility? 

2. Did the trial court err in imposing the mandatory 

minimum sentence of 10-20 years of incarceration where 

the record lacked any evidence of a prior conviction for a 

crime of violence, as defined in 42 Pa.C.S.A. § 9714? 

3. Did the trial court err in imposing a mandatory sentence 

pursuant to 42 Pa.C.S.A. § 9714 where that statute requires 

only proof of a prior conviction by a preponderance of the 

evidence, violating Appellant’s due process rights under 
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Article I, Section 9 of the Pennsylvania Constitution and the 

14th Amendment of the United States Constitution? 

(Appellant’s Brief at 6). 

In Appellant’s first issue, he asserts that the Commonwealth failed to 

present sufficient evidence of his identity. According to Appellant, the 

evidence was tenuous and included only DNA evidence from a water bottle 

intermingled with trash in a car and a fingerprint on the outside of the car, 

neither of which established when Appellant had driven the vehicle. Appellant 

contends that the Commonwealth failed to present evidence that Appellant 

had operated the vehicle close in time to the robbery, or evidence that tied 

him to any of the clothing related to the robbery. Appellant concludes the 

evidence was insufficient to convict him, and this Court must grant relief. We 

disagree.2 

Appellate review of a challenge to the sufficiency of the evidence is 

governed by the following principles: 

The standard we apply in reviewing the sufficiency of the 

evidence 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 

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2

 The trial court suggests that Appellant has waived his sufficiency claim due 

to his failure to specify the convictions, as well as the element or elements of 

the convictions upon which the evidence was insufficient, in his Rule 1925(b) 

statement. (See Trial Court Opinion at 19-20). While Appellant’s Rule 

1925(b) statement does not identify specific elements of each crime which he 

seeks to challenge, Appellant’s argument is premised on the Commonwealth’s 

alleged failure to prove his identity as the perpetrator of all crimes at issue. 

Therefore, we decline to find waiver on this basis. 
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and substitute our judgment for the fact-finder. In addition, 

we note that the facts and circumstances established by the 

Commonwealth need 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 

[finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting 

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)). This 

Court has further explained: 

[E]vidence of identification need not be positive and certain 

to sustain a conviction. Although common items of clothing 

and general physical characteristics are usually insufficient 

to support a conviction, such evidence can be used as other 

circumstances to establish the identity of a perpetrator. ... 

Given additional evidentiary circumstances, any 

indefiniteness and uncertainty in the identification 

testimony goes to its weight. 

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super. 2011) (en banc), 

appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations omitted). 

Here, the trial court summarized the evidence supporting Appellant’s 

convictions as follows: 

Instantly, the defense relied heavily upon the lack of any 

solid identification evidence of the co-defendants as the 

perpetrators of this robbery of the CVS Store on Cheltenham 

Avenue. Because Appellant and his codefendant had hid 

their faces well, neither victim could provide a positive I.D. 
J-S23022-24 

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of either suspect. Attorney McMahon also cast doubt on 

Laron Sims’ identification of Appellant as the buyer of his 

Mercury Mountaineer almost four (4) years earlier, noting 

that Mr. Sims was twenty (20) percent uncertain. However, 

the Commonwealth presented a substantial amount of 

circumstantial evidence that Appellant was the first man 

who walked into the CVS Store at 45 Cheltenham Avenue 

just before closing, walked down the greeting card aisle, 

motioned as if he had a weapon, and directed the young and 

frightened supervisor and cashier up the stairs into the 

office and told Ms. Nubutare to put the money from the safe 

into the bag supplied by co-defendant Salley. 

Viewed in the light most favorable to the Commonwealth, 

the evidence and all reasonable inferences therefrom 

establish that a female dressed in Muslim attire stepped out 

of a blue Mercury Mountaineer with after-market rims just 

after 7:00 p.m. on Friday, October 25, 2019, and entered 

the CVS Store at 45 Cheltenham Avenue in Cheltenham 

Township. The Mountaineer is seen on shopping center 

surveillance video circling the CVS Store three or four times 

over the next hour and forty minutes with a phone number 

belonging to Appellant on·a call with the female inside the 

CVS Store for approximately an hour and twenty-six 

minutes of that time. Both Appellant’s cell phone and that 

of his two accomplices pinged off of a cell phone tower 

within a mile from the CVS Store several times prior to the 

robbery. With just over ten minutes before the store was 

scheduled to close, the female leaves and two men with 

their faces covered enter the store. 

Appellant matched the general description provided by the 

two CVS employees and confirmed on store video of the 

larger of the two men dressed in female Muslim attire and 

wearing white Nike sneakers who entered first and told the 

supervisor to take them to the office and give them the 

money, motioning with his hand like he had a weapon. 

Appellant was also seen holding a greeting card which is 

identical to the one later found in the Mountaineer along 

with clothing that matched what the robbers wore in the 

CVS Store. Both men went with the store supervisor and 

cashier into the office and demanded the money from the 

safe. Ms. Sledge testified about her belief that Appellant 

had a weapon and that she was afraid. She also testified 
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about the concerted effort of the pair in carrying out the 

robbery. Appellant poked the supervisor in the back with 

something as he was instructing her to open the safe. Ms. 

Nubutare testified about the fear she felt and belief she held 

that she and her coworkers were in danger. Co-defendant 

Salley produced the bag into which the two men both 

ordered the supervisor to fill with the cash. The two men 

left the store together and a GPS tracker tracked the CVS 

Store cash to the 5600 block of Appletree Street in 

Philadelphia. 

Detective Gonglik later lifted Appellant’s latent fingerprint as 

well as that of co-defendant Salley off of the Mountaineer, 

which was parked less than 100 feet from Appellant’s 

residence an hour after the robbery and tracked there 

directly from the CVS Store. Law enforcement tied both 

Appellant’s and co-defendant Salley’s DNA to items inside 

the Mercury Mountaineer as well. 

Finally, with eighty percent certainty, the former owner of 

the Mountaineer identified Appellant as the person to whom 

he sold the vehicle in 2018. Although Attorney McMahon 

strenuously attacked the lack of direct evidence, including a 

positive identification of his client, the jury was free to 

consider all of the circumstantial evidence together and not 

in isolated fragments. 

(Trial Court Opinion at 24-27). Viewed in the light most favorable to the 

Commonwealth as verdict-winner, the evidence was sufficient to identify 

Appellant as the perpetrator. See Jones, supra. Any indefiniteness and 

uncertainty in the identification testimony is more properly a challenge to the 

weight of the evidence, not its sufficiency. See Orr, supra. Therefore, 

Appellant’s first issue on appeal merits no relief. 

Appellant’s remaining issues implicate his mandatory minimum 

sentence and are, therefore, interrelated. First, Appellant asserts that the 

trial court erred in imposing a mandatory minimum sentence of 10 years of 
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incarceration, where the record lacked evidence of a prior conviction for a 

crime of violence as defined in 42 Pa.C.S.A. § 9714. According to Appellant, 

the Commonwealth is required to present evidence of Appellant’s prior 

conviction in the form of a “certified” conviction, unless Appellant stipulates to 

the prior conviction. Although the prior conviction was included in the 

presentence investigation (“PSI”) report, Appellant argues that the PSI report 

does not constitute evidence of the prior conviction. Appellant claims it was 

the Commonwealth’s burden to offer evidence of the prior conviction, and a 

PSI report mentioning the prior conviction is insufficient as the PSI report is 

authored by a non-party entity and lacks the safeguards of cross-examination. 

Second, Appellant asserts that imposition of the mandatory minimum 

sentence in this case is illegal because the relevant mandatory minimum 

statute requires proof of a prior conviction by only a preponderance of the 

evidence, in violation of Appellant’s due process rights under the Pennsylvania 

and United States Constitutions. Citing Alleyne v. United States, 570 U.S. 

99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), Appellant argues that any fact 

triggering a mandatory minimum sentence becomes an element of the offense 

and creates a distinct crime, which must be found beyond a reasonable doubt 

by the fact-finder at trial. Appellant concludes that imposition of the 

mandatory minimum sentence was illegal, and this Court must vacate and 

remand for resentencing. We disagree. 

“A challenge to the legality of sentence is a question of law; our standard 

of review is de novo and our scope of review is plenary.” Commonwealth v. 
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Hayes, 266 A.3d 679, 683 (Pa.Super. 2021). 

A claim that implicates the fundamental legal authority of 

the court to impose a particular sentence constitutes a 

challenge to the legality of the sentence. If no statutory 

authorization exists for a particular sentence, that sentence 

is illegal and subject to correction. An illegal sentence must 

be vacated. Likewise, a sentence that exceeds the statutory 

maximum is illegal. If a court imposes a sentence outside 

of the legal parameters prescribed by the applicable statute, 

the sentence is illegal and should be remanded for 

correction. 

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.Super. 2013) (internal 

citations and quotation marks omitted). 

The mandatory minimum sentencing statute at issue in this case during 

the relevant time provided: 

§ 9714. Sentences for second and subsequent 

offenses. 

(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. The applicability of this section shall 

be determined at sentencing. The sentencing court, prior to 
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imposing sentence on an offender under subsection (a), 

shall have a complete record of the previous convictions of 

the offender, copies of which shall be furnished to the 

offender. If the offender or the attorney for the 

Commonwealth contests the accuracy of the record, the 

court shall schedule a hearing and direct the offender and 

the attorney for the Commonwealth to submit evidence 

regarding the previous convictions of the offender. The 

court shall then determine, by a preponderance of the 

evidence, the previous convictions of the offender and, if 

this section is applicable, shall impose sentence in 

accordance with this section. ... 

42 Pa.C.S.A. § 9714(a)(1), (d) (effective August 4, 2020 to January 2, 2023). 

Robbery is a crime of violence. See 18 Pa.C.S.A. § 3701(a)(1)(ii); 42 

Pa.C.S.A. § 9714(g). 

This Court has previously held that the “lesser standard of 

preponderance of the evidence does not shift the burden to the defendant to 

disprove his prior conviction” but “simply requires less evidence of the prior 

offense than typically required in criminal proceedings.” Commonwealth v. 

Freeman, 514 A.2d 884, 888 (Pa.Super. 1986), appeal denied, 514 Pa. 642, 

523 A.2d 1130 (1987). While the Commonwealth must give reasonable notice 

of its intent to seek the mandatory minimum sentence, the trial court, with 

the benefit of a PSI report, may appropriately determine that a defendant has 

a relevant prior conviction. See Commonwealth v. Furness, 153 A.3d 397 

(Pa.Super. 2016), appeal denied, 642 Pa. 554, 170 A.3d 1034 (2017). 

In Alleyne, supra, our Supreme Court held that any fact increasing the 

mandatory minimum sentence for a crime is considered an element of the 

crime to be submitted to the fact-finder and found beyond a reasonable doubt. 
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See id. Significantly, however, the Alleyne decision made clear that the fact 

of a prior conviction constituted an exception to the Court’s holding. See id.

at 111 n.1, 133 S.Ct. at 2160 n.1. Thus, this Court has held that Section 

9714, which increases mandatory minimum sentences based on prior 

convictions, is not unconstitutional under Alleyne. See Commonwealth v. 

Reid, 117 A.3d 777, 785 (Pa.Super 2015); see also Furness, supra at 406. 

Our Supreme Court has rejected due process challenges related to 

similar sentencing enhancements based on prior convictions: 

The fact of a prior conviction stands alone; it does not 

require a presumption—it either exists as a matter of public 

record or it does not. [A defendant’s] guilt of the prior 

offense has already been determined beyond a reasonable 

doubt, by a jury, if he chose to exercise that right, and is a 

straightforward issue capable of objective proof and where 

the risk of error was slight. 

* * * 

[When] the judicial finding is the fact of a prior conviction, 

submission to a jury is unnecessary, since the prior 

conviction is an objective fact that initially was cloaked in all 

the constitutional safeguards, and is now a matter of public 

record. 

Commonwealth v. Aponte, 579 Pa. 246, 263, 855 A.2d 800, 811-12 (2004) 

(discussing sentencing enhancements under the Controlled Substance, Drug, 

Device and Cosmetic Act, 35 P.S. §§ 780-101, et seq.) (internal citations and 

footnotes omitted). See also Commonwealth v. Forbes, 867 A.2d 1268 

(Pa.Super. 2005) (explaining that procedure outlined in Section 9714 does not 

violate appellant’s due process rights, as his prior convictions are matter of 
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record); Commonwealth v. Clary, 248 A.3d 491 (Pa.Super. filed Jan. 21, 

2021) (unpublished memorandum),3 appeal denied, ___ Pa. ___, 269 A.3d 

1227 (2021) (citing Aponte, Alleyne and their progeny and concluding that 

Section 9714 does not violate appellant’s due process rights). 

Instantly, the trial court observed: 

A review of the sentencing transcript in this case reveals 

that...Attorney McMahon did not stipulate to any prior 

convictions in the absence of certified convictions. 

However, as in Furness, the transcript also reveals that the 

Commonwealth provided the necessary notice that it was 

seeking the mandatory sentence for the second “crime of 

violence” conviction, that the court ordered and received a 

pre-sentence investigation report and provided copies to 

counsel, and that defense counsel had no corrections, 

additions, or subtractions to the report. In the lengthy 

criminal history section of the report, it is noted that 

Appellant pled guilty on June 4, 2002, in the Eastern District 

of Pennsylvania Philadelphia Court and was convicted of 

armed bank robbery, conspiracy, using a firearm during a 

violent crime, and felon unlawfully in possession of a 

firearm. Attorney McMahon did not contest the accuracy of 

the presentence investigation and report. 

(Trial Court Opinion at 33-35).4

Based on the above, Appellant is not entitled to relief on either 

sentencing claim. First, Appellant does not dispute his prior conviction despite 

his refusal to stipulate to it. See Furness, supra (citing 42 Pa.C.S.A. § 

9714(d) and noting that accuracy of prior record, if contested, is subject to 

____________________________________________ 

3 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this 

Court filed after May 1, 2019 for their persuasive value). 

4

 (See also PSI Report, 7/11/22, at 1-10). 
J-S23022-24 

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preponderance of evidence standard). Second, both the Pennsylvania 

Supreme Court and this Court have rejected attempts to apply Alleyne to 

recidivist-based mandatory minimum sentence statutes, as well as arguments 

that such sentences violate a defendant’s due process rights. See Aponte, 

supra; Reid, supra; Forbes, supra; Clary, supra. Therefore, Appellant’s 

illegal sentencing claims fail. See Infante, supra. Accordingly, we affirm. 

Judgment of sentence affirmed. 

Date: 8/19/2024