J-S25010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

SOLOMON MCKEEVER ELLISON, III,

                         Appellant                   No.  743 EDA 2016


          Appeal from the Judgment of Sentence February 5, 2016
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0000167-2014


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                  FILED SEPTEMBER 26, 2017

      Appellant, Solomon Mckeever Ellison, III, appeals from the judgment

of sentence of an aggregate term of 30 to 60 years’ incarceration, followed

by 2 years’ probation, imposed after he was convicted of, inter alia,

involuntary deviate sexual intercourse (IDSI).     On appeal, Appellant avers

that his sentence is illegal, and that the trial court erred by replacing a

principal juror with an alternate juror after deliberations had begun.  After

careful review, we affirm. 

      The trial court summarized the facts of Appellant’s case, as follows:

            The incident in question occurred on December 9, 2013. 
      [Appellant] and the Victim[] met online through [a] website. 
      The Victim testified she went on the website because she needed
      money.  She started talking to [Appellant] frequently during the
      few days before the incident in question.  They discussed her
      financial issues and [Appellant] told her he would pay her for
      oral sex.  Eventually, the two made a plan to meet at her house. 
      On the afternoon of December 9th, [Appellant] arrived at the
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     Victim’s house.  Initially, [Appellant] and the Victim sat down to
     talk and smoke marijuana that she provided for them.  After
     smoking, [Appellant] took out some money to pay the Victim for
     the agreed upon sexual contact, however, he only produced forty
     dollars even though they previously agreed to a payment of one
     hundred dollars.      When the Victim refused to comply with
     [Appellant’s] requests, he grabbed her hair, pulled her face to
     his crotch, and unbuttoned his pants.  He also took out a box
     cutter.  The Victim began to perform oral sex.  He put the knife
     to the Victim’s chin, and then he cut the bottom of her chin,
     which she did not notice until she saw blood on his pants.  She
     back[ed] away to see what was wrong and a fight between the
     two ensued. [ Appellant] attempted to drag the Victim up the
     stairs, however, the Victim resisted.  When she resisted by
     screaming and pushing him, [Appellant] lifted her up [and] then
     slammed her onto the floor[,] as well as elbowing her in the
     face.  When she pushed him back again … he fled out through
     the back [door].       Then, the Victim asked for help from a
     neighbor and called the police.  The fight resulted in multiple
     injuries for the Victim[,] including bruises and an injured hand
     from [her hand] going through a window during the fight. 

Trial Court Opinion (TCO), 8/10/16, at 2-3.     In addition to this conduct,

Appellant also fled from police when they attempted to arrest him.  He was

ultimately apprehended, however, and charged with various offenses. 

     Appellant proceeded to a jury trial and, on October 16, 2015, he was

convicted of IDSI by forcible compulsion, 18 Pa.C.S. § 3123(a)(1); IDSI by

threat of forcible compulsion, 18 Pa.C.S. § 3123(a)(2); indecent assault by

forcible compulsion, 18 Pa.C.S. § 3126(a)(2); indecent assault by threat of

forcible compulsion, 18 Pa.C.S. § 3126(a)(3); indecent assault without

consent, 18 Pa.C.S. § 3126(a)(1); and sexual assault, 18 Pa.C.S. § 3124.1. 

On February 5, 2016, Appellant was sentenced to the aggregate term stated

supra, which included a 25 year, mandatory minimum sentence for his IDSI

by forcible compulsion conviction under 42 Pa.C.S. § 9718.2 (requiring a

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mandatory minimum sentence of 25 years’ incarceration for “[a]ny person

who is convicted … of an offense set forth in section 9799.14 (relating to

sexual offenses…)” and who, “at the time of the commission of the current

offense … had previously been convicted of an offense set forth in section

9799.14 or an equivalent crime under the laws of this Commonwealth”). 

      Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.  Herein, Appellant presents two issues for

our review:

      [I.] Whether the IDSI conviction coupled with 42 Pa.C.S. [§]
      9718.2 constitutes a new, aggravated crime making the
      mandatory minimum sentence of 25 to 50 years illegal? 

      [II.]  Whether the … [t]rial [c]ourt erred when it employed the
      per se standard while reconstituting the jury during
      deliberations? 

Appellant’s Brief at 9. 

      In his first issue, Appellant argues that the trial court imposed an

illegal sentence when it applied the mandatory minimum term of 25 years’

incarceration required by 42 Pa.C.S. § 9718.2.       Appellant presents two

arguments regarding why section 9718.2 is unconstitutional.          First, he

claims that it violates the rule announced in Alleyne v. United States, 133

S.Ct.  2151 (2013), which held that any fact that increases a mandatory

minimum sentence is an element of the crime that must be found, beyond a

reasonable doubt, by the fact-finder.    Appellant avers that section 9718.2

violates Alleyne because it contains a “proof at sentencing” provision that

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explicitly states that “[t]he provisions of this section shall not be an element

of the crime,” and that “[t]he applicability of this section shall be determined

at sentencing.”  42 Pa.C.S. § 9718.2(c) (emphasis added).  Appellant points

to other mandatory minimum statutes that have been struck down as

unconstitutional because they contain this same ‘proof at sentencing’

provision.  See Appellant’s Brief at 15-16 (citing Commonwealth v. Wolfe,

140    A.3d   651    (Pa.   2016)   (striking    down   42    Pa.C.S.   §   9718   as

unconstitutional under Alleyne), and Commonwealth v. Hopkins, 117

A.3d 247 (Pa. 2015) (holding that 42 Pa.C.S. § 6317 is unconstitutional

under Alleyne).       Second, Appellant avers that section 9718.2 creates “a

new, aggravated offense” and, therefore, the Commonwealth was required

to provide notice of its intent to seek imposition of this mandatory sentence

in the charging documents.  Because the Commonwealth did not, Appellant

contends that his due process rights were violated and his resulting sentence

is illegal. 

       We will address Appellant’s second argument first.  We stress that the

explicit language of section 9718.2 states that notice of the Commonwealth’s

intent to seek application of that provision “shall not be required prior to

conviction….”  42 Pa.C.S. § 9718.2(c) (emphasis added).  Thus, the very

language      of   the   statute    defeats     Appellant’s   argument      that   the

Commonwealth was required to inform him of the mandatory sentence in

the charging documents.        Moreover, our Supreme Court recently rejected

(albeit, in a per curiam order) the claim that section 9718.2 creates a new,

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aggravated crime which requires notice prior to trial.  See Commonwealth

v. Macklin, 2017 WL 3623391 (Pa. 2017) (per curiam order affirming this

Court’s decision that section 9718.2 does not require notice in the charging

document).  In light of the plain language of the statute, and the Supreme

Court’s order in Macklin, we reject Appellant’s argument that pretrial notice

of the applicability of section 9718.2 was required. 

      We also reject Appellant’s claim that the statute is unconstitutional

under Alleyne.      The application of the mandatory sentence in section

9718.2 was triggered by Appellant’s prior conviction for an offense set forth

in section 9799.14.  See 42 Pa.C.S. § 9718.2(a)(1). 

      Prior convictions are the remaining exception to Apprendi v.
      New Jersey, 530 U.S. 466, 120 S.Ct.  2348, 147 L.Ed.2d 435
      (2000), and Alleyne…, insofar as a factfinder is not required to
      determine disputed convictions beyond a reasonable doubt to
      comport with the Sixth Amendment jury trial right.  See
      Almendarez–Torres v. United States, 523 U.S. 224, 118
      S.Ct.  1219, 140 L.Ed.2d 350 (1998).  However, the viability of
      this holding has been questioned, see Almendarez–Torres,
      supra (Scalia, J. dissenting); Apprendi, supra (Thomas, J.
      concurring), and five Justices appear to disagree with the
      Almendarez holding, to the extent a conviction would increase
      a defendant's maximum sentence; namely, Justices Scalia,
      Thomas, Ginsburg, Sotomayor, and Kagan.  As noted by this
      Court, “[t]he precise issue has yet to be reconsidered by the
      United States Supreme Court following Apprendi.  See Alleyne,
      supra at 2160 n. 1.”  Commonwealth v. Watley, 81 A.3d 108,
      117 n. 3 (Pa. Super.  2013) (en banc). 

Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super.  2014).  Thus,

because the mandatory minimum sentences under section 9718.2 are




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premised on prior convictions, that statute is not unconstitutional under the

current state of the law. 

      In Appellant’s next issue, he maintains that the trial court erred by

replacing a principal juror (hereinafter, “Juror 10”) with an alternate juror

after deliberations had begun.    By way of background, approximately one

hour after the jurors began to deliberate in this case, Juror 10 informed the

court that she could not properly consider evidence that Appellant had been

convicted of motor vehicle robbery because she had been adjudicated

delinquent of that same offense as a juvenile.  See N.T. Trial, 10/16/15, at

89-90.  Specifically, Juror 10 stated:

      Juror #10: … I told [the other jurors] that I could not convict
      [Appellant] on his history of the motor vehicle robbery because I
      once too was adjudicated delinquent for the same exact charges. 
      So I can’t use that history to make my decisions on him. 

N.T. Trial, 10/16/15, at 90.    However, when the court further questioned

Juror 10, she stated that she could follow the court’s instructions and

consider Appellant’s conviction for motor vehicle robbery in evaluating his

credibility.  Id. at 96-97.  Nevertheless, the court determined that Juror 10

should be removed, and empaneled an alternate juror in her place.  Id. at

100-01. 

      Appellant now claims that the court erred by dismissing Juror 10.  In

support, Appellant relies on Commonwealth v. Pander, 100 A.3d 626 (Pa.

Super.  2014).  There, a juror in Pander’s trial became extremely upset over

viewing photographs of the deceased victim.  Id. at 631.  However, the trial


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court declined Pander’s request to replace that juror with an alternate

because, after questioning, the juror had twice indicated that she could

remain impartial, “notwithstanding her emotional reaction….”          Id.     On

appeal, Pander essentially contended that the juror was per se prejudiced,

and that she should have been dismissed despite her statements that she

could remain impartial.  Id.

      This Court rejected Panders’ ‘per se prejudice’ argument, noting that

the juror’s conduct must be assessed to decide the degree of prejudice, and

whether the court had abused its discretion in deciding to remove that juror. 

Id. at 632.       Ultimately, we concluded that “becoming upset over a

photograph of a murder victim” did not indicate prejudice or “an inability to

consider the evidence impartially.”    Id. at 632-33.    We also stressed that

“the trial court was satisfied by the juror’s response that he or she could

remain fair[,]” and because “the trial court … had the opportunity to view

the juror in question,” we refused to reconsider the court’s decision.  Id.

      In the present case, the entirety of Appellant’s argument regarding

how our decision in Pander compels reversal in this case is as follows:

            [The] [t]rial [c]ourt employed the per se analysis that it
      says it would have used during voir dire had Juror 10 then
      disclosed [that] she had been adjudicated delinquent for misuse
      of an automobile.  The [c]ourt applied the wrong standard to the
      detriment of [Appellant,] who wanted Juror 10 to continue
      deliberating and trial counsel preserved the issue.  This was
      error under Pander because it was an abuse of discretion to in
      effect strike Juror 10 for cause and ignore her proclamation of
      impartiality. 

Appellant’s Brief at 25. 

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       Appellant’s brief argument does not compel us to conclude that the

trial court abused its discretion.  See Commonwealth v. Treiber, 874 A.2d

26, 31 (Pa. 2005) (“The discharge of a juror is within the sound discretion of

the trial court.      Absent a palpable abuse of that discretion, the court’s

determination will not be reversed.”).  Notably, the record does not support

his claim that the court applied a per se prejudice standard.        Instead, the

record indicates that the court assessed Juror 10’s statements indicating that

she could not properly assess the evidence of Appellant’s prior conviction, as

well as her claims that she could follow the court’s instructions pertaining to

that evidence.         In weighing the credibility of Juror 10’s conflicting

statements, the court also considered the fact that in its view, Juror 10 had

not been forthcoming about her own criminal history during jury voir dire. 

Id. at 100-01.       Ultimately, the court determined that Juror 10 should be

dismissed, obviously premising that decision on its determination that Juror

10 was not credible.          See id.      Thus, the trial court here undertook a

credibility assessment that was similar to the trial court in Pander, but

simply reached the opposite conclusion that the principal juror should be

replaced.  We ascertain no abuse of discretion in the trial court’s decision.1
____________________________________________


1
  We also point out that the trial court took protective measures when
empaneling the alternate juror, including colloquying the alternate juror and
instructing the jury to begin their deliberations anew.  See id. at 107-113. 
Appellant does not acknowledge, let alone challenge, the propriety of these
efforts.  Therefore, while a presumption of prejudice to the defendant arises
when an alternate juror is substituted after deliberations have begun, it is
(Footnote Continued Next Page)


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      Judgment of sentence affirmed. 

      President Judge Emeritus Ford Elliott joins this memorandum. 

      Judge Ransom concurs in the result. 

Judgment Entered. 




Joseph D. Seletyn, Esq. 
Prothonotary



Date: 9/26/2017




                       _______________________
(Footnote Continued)

apparent that that presumption was rebutted in this case.                    See
Commonwealth v. Saunders, 686 A.2d 25, 27 (Pa. Super.  1996)
(declaring that, “where the trial court has substituted an alternate juror after
deliberations have begun, there is a presumption of prejudice to the
defendant[,]” which may be rebutted through “evidence which establishes
that sufficient protective measures were taken to insure the integrity of the
jury function”). 




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