Submitted August 4, 2014
Appeal from the Judgment of Sentence of the Court of Common Pleas, Delaware County, Criminal Division, No(s): CP-23-CR-0001807-2013. Before KELLY, J.
Patrick J. Connors, Public Defender, Media, for appellant.
Michelle P. Hutton, Assistant District Attorney, Media, for Commonwealth, appellee.
BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD[*], JJ.
Jose Valentine (" Appellant" ) appeals from the judgment of sentence imposed after a jury convicted him of robbery. We vacate Appellant's judgment of sentence and remand for resentencing.
The pertinent facts and procedural history are as follows: On November 4, 2012, at approximately 6:05 a.m., the victim, Renee Gibbs, was alone, waiting for her SEPTA bus, at the intersection of Ninth and Lloyd Streets in Chester City, when she was approached from behind by Appellant, who pointed a handgun at her and demanded money. Trial Court Opinion, 4/9/14, at 9-10. Appellant was wearing a mask that partially obscured his face, and dark clothing. Id. at 10. Appellant threatened to shoot Ms. Gibbs, who surrendered her purse and cellular phone. Id. Appellant then fled and Ms. Gibbs went to her mother's house nearby and called the police. Id. Police officers responded promptly and Ms. Gibbs provided them with a description of her assailant. Id. Within twenty minutes, Appellant was apprehended at the intersection of Ninth and Pennell Streets, on the same block where the robbery occurred. Id. at 11-12. Ms. Gibbs was brought to the location where Appellant was apprehended and identified him as her assailant. Id.
Appellant was arrested, and on April 10, 2013, the Commonwealth filed a criminal information charging Appellant with robbery, receiving stolen property, theft by unlawful taking, carrying a firearm without a license, possession of an instrument of crime, possession of a prohibited offensive weapon, and possession of a firearm by a minor. On July 30, 2013, the Commonwealth orally moved to amend the criminal information. N.T., 7/30/13, at 4. Appellant did not object and the trial court granted the Commonwealth's application to amend the criminal information to include the allegation that Appellant visibly possessed a firearm, for purposes of the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712, and to specify that the offenses were committed in or near public transportation for purposes of the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9713.
A jury trial commenced on July 30, 2013, at the conclusion of which the jury found Appellant guilty of robbery. Additionally the verdict slip presented to the jury the following questions, to which the jury returned a finding of " yes" as to both questions:
Did the Defendant Jose R. Valentine, visibly possess a firearm, whether or not the firearm was loaded or functional, that placed [the victim] in reasonable fear of serious bodily injury during his commission of the above-described robbery offense?
Did the Defendant Jose R. Valentine, in whole or in part, commit the above-described robbery offense at or near a
Septa bus stop, or in the immediate vicinity of a Septa bus stop?
Verdict Slip, 7/31/13. Neither the Commonwealth nor Appellant objected to the verdict slip. See N.T., 7/31/13, at 3-4.
Following a sentencing hearing on October 3, 2013, the trial court determined that the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § § 9712 and 9713 were applicable to Appellant, and sentenced him to a term of imprisonment of five (5) to ten (10) years for robbery. Appellant filed a pro se motion for reconsideration on October 10, 2013. In response, the trial court convened a hearing on October 16, 2013, at which time Appellant's counsel moved to withdraw the post-sentence motion. The trial court granted counsel's application to withdraw the motion, and on October 16, 2013 entered an order memorializing the withdrawal of the post-sentence motion pursuant to Pa.R.Crim.P. 720(A)(2)(c). See Commonwealth v. Claffey, 2013 PA Super. 155, 80 A.3d 780, 783 (Pa. Super. 2013) ( " When post-sentence motions are withdrawn and the trial court enters an order memorializing the withdrawal, any direct appeal must be filed within thirty days of the order." ); Pa.R.Crim.P. 720(A)(2)(c). Appellant filed a notice of appeal on November 14, 2013. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
1) Whether the evidence was insufficient to sustain the conviction for Robbery since [Appellant] was not identified as the culprit beyond a reasonable doubt, and because the Commonwealth failed to prove that [Appellant] threatened another person or intentionally put another person in fear of immediate serious bodily injury in the course of committing a theft?
2) Whether the mandatory minimum sentence imposed herein is illegal, and should be vacated, since the provisions that were applied were rendered unconstitutional?
Appellant's Brief at 5.
In his first issue, Appellant asserts that the evidence was insufficient to support his robbery conviction. Appellant's Brief at 13-18. Our standard of review with regard to a sufficiency challenge is as follows:
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 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. Devine, 2011 PA Super. 163, 26 A.3d 1139, 1145 ...