J-S27027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH BROWN 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1929 EDA 2017

Appeal from the Judgment of Sentence June 14, 2013

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009702-2012

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: Filed July 20, 2018

Joseph Brown appeals nunc pro tunc from the judgment of sentence, 

entered in the Court of Common Pleas of Philadelphia, following his conviction 

for robbery – threat of immediate serious injury,1two violations of the Uniform

Firearms Act (“VUFA”),2 possession of an instrument of crime (“PIC”),3 and 

conspiracy to commit robbery.4 After review, we affirm Brown’s conviction, 

vacate his judgment of sentence and remand for resentencing.

On May 18, 2012, Hayward Peak instructed Saria Peak (“Peak”), his 

sister, to deliver $1,400.00 to Joseph Ceborollo. Ceborollo met Peak outside 

____________________________________________

1 18 Pa.C.S.A. § 3701(a)(i).

2 18 Pa.C.S.A. §§ 6106(a)(1), 6108.

3 18 Pa.C.S.A. § 907.

4 18 Pa.C.S.A. § 903.
J-S27027-18

- 2 -

of a local restaurant to take receipt of the $1,400.00; during the meeting, 

Ceborollo sat in the rear of Peak’s vehicle. Moments after the meeting began,

Brown approached the driver’s-side window, brandished a firearm, and 

demanded Peak give him all of her possessions. Peak gave Brown various 

items, including the aforementioned $1,400.00.

Peak indicated to police that she suspected Ceborollo was complicit in 

the robbery. Peak was able to identify Brown from photos provided by police, 

and, later, police obtained a search warrant for his home based on Peak’s 

identification. During the search of Brown’s home, police arrested Brown and

recovered three firearms and a purse containing Peak’s social security card, 

driver’s license and checkbook. Police also recovered Brown’s cell phone and 

were able to confirm that he used it to contact Ceborollo at the time of the 

robbery. 

In June 2012, while incarcerated awaiting trial, Brown offered another 

inmate $2,000.00 and a firearm as consideration for agreeing to “stop” Peak 

from coming to court proceedings. Prison phone line tapes recorded Brown 

planning this transaction with a friend on the outside, whom he instructed to 

obtain the $2,000.00. Following an investigation, the Commonwealth charged 

Brown with the additional crimes of criminal solicitation (murder) and 

conspiracy to commit murder.

On April 12, 2013, a jury convicted Brown of robbery, PIC, two VUFA 

violations and conspiracy to commit robbery, and it acquitted him of charges 

of criminal solicitation (murder) and conspiracy to commit murder. On June 
J-S27027-18

- 3 -

14, 2013, the trial court imposed mandatory minimum sentences pursuant to 

42 Pa.C.S.A. § 9712 and § 9714. Accordingly, the trial court sentenced Brown 

to concurrent sentences of 10 to 20 years’ incarceration for robbery and 

conspiracy, and an aggregate term of four years’ probation, consecutive to his 

confinement, for the VUFA charges.

On June 9, 2017, the trial court granted Brown’s Post Conviction Relief 

Act5 petition, finding that trial counsel was ineffective for failing to file an 

appeal, and reinstated his appellate rights nunc pro tunc. On June 16, 2017, 

Brown filed a timely notice of appeal nunc pro tunc. Brown and the trial court 

have both complied with Pa.R.A.P. 1925. On appeal, Brown raises the 

following issues:

1. Whether the verdict was against the weight of the evidence.

2. Whether the Court was in error in denying Brown’s motion for 

[j]udgment of [a]cquittal.

3. Whether [Brown’s] sentence was constitutionally unlawful.

4. Whether [Brown’s] lack of notice from the Commonwealth that 

his case was a mandatory minimum sentencing case violated 

his constitutional right to due process at the sentencing 

hearing.

Brief of Appellant, at 7.

Brown first argues that the verdict was against the weight of the 

evidence where the Commonwealth failed to meet its burden of proof with 

respect to conspiracy to committ robbery. Brown has waived this claim.

____________________________________________

5 42 Pa.C.S.A. §§ 9541-9546.
J-S27027-18

- 4 -

A defendant must present his challenge to the weight of the evidence to 

the trial court for a review in the first instance, in order to preserve the matter 

for appellate review. Pa.R.Crim.P. 607(A); see Commonwealth v. Stiles, 

143 A.3d 968, 980 (Pa. Super. 2016). A claim challenging the weight of the 

evidence “shall be raised in a motion for new trial: (1) orally, on the record, 

at any time before sentencing; (2) by written motion at any time before 

sentencing; or (3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). Failure 

to preserve properly a weight of the evidence claim therefore will result in 

waiver. Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009); see 

Commonwealth v. Thompson, 93 A.2d 478, 490-91 (Pa. Super. 2014).

Brown’s failure to raise a weight claim at trial or in a post-sentence 

motion is fatal to our review. Brown failed to preserve this issue, and thus, it 

is waived on appeal. Sherwood, supra. 

Brown next claims that the trial court erred in denying his motion for 

judgment of acquittal as it related, specifically, to his conspiracy – murder 

charge. However, because the jury did not find him guilty of this crime, his 

issue is moot.6

____________________________________________

6 Even if this claim were not moot, Brown would not be entitled to relief. The 

Commonwealth presented evidence that Brown attempted to arrange for his 

brother to provide his co-conspirator with $2,000.00 and a firearm as 

consideration for murdering Peak. The evidence of a conspiracy, viewed in a 

light most favorable to the Commonwealth, was sufficient to allow the jury to 

determine Brown’s guilt. See Commonwealth v. Clark, 746 A.2d 1128, 

1137 (Pa. Super. 2000) (“Where the conduct of the parties indicates they were 
J-S27027-18

- 5 -

Brown next argues the trial court sentenced him pursuant to the 

mandatory minimum sentencing scheme set forth in 42 Pa.C.S.A. § 9712, and 

thus, his sentence is illegal.7 We agree.

Generally, a challenge to the application of a mandatory minimum 

sentence is a non-waivable challenge to the legality of the 

sentence. Issues relating to the legality of sentence are questions 

of law, as are claims raising a court’s interpretation of a statute. 

Our standard of review over such questions is de novo and our 

scope of review is plenary.

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012), 

quoting Commonwealth v. Brougher, 978 A2d 373, 377 (Pa. Super. 2009).

Mandatory minimum sentencing statutes that do not pertain to prior 

convictions are constitutionally infirm insofar as they permit a judge to 

increase automatically a defendant’s sentence based on a preponderance of 

the evidence standard. Commonwealth v. Valentine, 101 A.3d 801, 804 

(Pa. Super. 2014). Valentine applies Alleyne v. United States, 570 U.S. 

99 (2013), in which the Supreme Court of the United States held:

Any fact that, by law, increases the penalty for a crime is an 

“element” that must be submitted to the jury and found beyond a 

reasonable doubt. Mandatory minimum sentences increase the 

penalty for a crime. It follows, then, that any fact that increases 

the mandatory minimum is an “element” that must be submitted 

to the jury.

Id. at 103. 

____________________________________________

acting in concert with a corrupt purpose in view, the existence of a conspiracy 

may be properly inferred).

7 The trial court concedes Brown’s sentence is illegal. See generally Trial

Court Opinion, 9/20/17, at 8-9.
J-S27027-18

- 6 -

In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014), we 

declared 42 Pa.C.S.A. § 9712.1 wholly unconstitutional. Id. at 98 (statute 

permitting trial court to increase defendant’s minimum sentence based upon 

preponderance of evidence that defendant was dealing drugs and possessed 

firearm violated defendant's right to jury trial; possession of firearm must be 

pleaded in indictment, and must be found by jury beyond reasonable doubt 

before defendant may be subjected to increase in minimum sentence).

Valentine extends Newman to section 9712, which the trial court applied to 

Brown’s sentence; and thus, it is wholly unconstitutional. Therefore, we must 

vacate Brown’s judgment of sentence and remand his case for re-imposition 

of sentence without consideration of any mandatory minimum provided by 

section 9712.8 

____________________________________________

8 The trial court imposed Brown’s sentence pursuant to sections 9712 and

9714. Although section 9712 is wholly unconstitutional, section 9714 is not. 

Section 9714 states, in relevant part, as follows:

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.

42 Pa.C.S.A. 9714(a)(1) (emphasis added). Unlike section 9712, the section 

9714 sentencing enhancement requires the Commonwealth to show a court 

previously convicted a defendant of a violent crime beyond a reasonable 

doubt, and thus, it does not run afoul of Alleyne or Valentine. 

Instantly, Brown’s illegal sentence runs concurrent with his lawful 

sentence imposed pursuant to section 9714; the concurrent sentences are 
J-S27027-18

- 7 -

Last, Brown claims he never received notice from the Commonwealth, 

after his conviction and prior to sentencing, that his case was subject to a 

mandatory minimum sentencing statute. However, our remand of Brown’s 

case to the trial court for resentencing renders this issue moot. Therefore, we 

decline to address Brown’s notice issue on appeal.9

____________________________________________

identical. Thus, it is conceivable that further proceedings consistent with the 

dictates of this memorandum will yield, in effect, the same sentence he is 

serving (i.e., 10 to 20 years’ imprisonment). Nevertheless, this Court’s 

decision in Valentine constrains us to vacate Brown’s sentence. Justice 

demands that we do not permit courts to impose illegal sentences, even where 

convenience, fairness or pragmatism merits it.

9 The sentencing court, by reviewing a defendant’s criminal record at the time 

of sentencing, determines whether (or to what extent) a defendant is subject 

to section 9714’s sentencing provisions. See 42 P.S.C.A. 9714(d) (“The 

applicability of [section 9714] shall be determined at sentencing.”). If we 

were to require the Commonwealth’s pre-sentence notice specify a particular 

provision of section 9714 (i.e. 9714(a)(1) or 9714(a)(2)), it would effectively

divest the sentencing court of its role in determining the applicability of the 

relevant provision at the time of sentencing. See Commonwealth v. Norris, 

819 A.2d 568 (Pa. Super. 2003). In other words, so long as the 

Commonwealth’s pre-sentence notice invokes the all relevant provisions of 

section 9714, such notice is reasonable and not misleading. Id. 

Instantly, the trial court concedes that there is no indication in the 

record that the Commonwealth did or did not provide Brown pre-sentence 

notice of its intent to pursue a sentence under sections 9712 and 9714. Trial 

Court Opinion, 9/10/17, at 10. Therefore, in anticipation of further 

proceedings, we advise the Commonwealth provide Brown notice of any 

subsequent intent to pursue a sentence under 9714, which, at a bare 

minimum, invokes all relevant provisions of section 9714. Such notice is 

sufficient in light of section 9714(d). A better practice, though not a 

requirement, Norris, supra, would be for the Commonwealth to provide presentence notice identifying the specific provision of section 9714 it plans to 

pursue a sentence under.
J-S27027-18

- 8 -

Judgment of sentence vacated. Case remanded for proceedings not 

inconsistent with the dictates of the memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2018