Com. v. Dickson

• Decision Date: 29 March 2007
• Citation: 918 A.2d 95
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ravah DICKSON, Appellant.
• Court: Pennsylvania Supreme Court

918 A.2d 95

COMMONWEALTH of Pennsylvania, Appellee, v. Ravah DICKSON, Appellant.

Supreme Court of Pennsylvania.

Argued September 14, 2005.

Decided March 29, 2007.

Karl Baker, Esq., Peter Rosalsky, Esq., Karl Lawrence Morgan, Esq., Philadelphia, for Ravah Dickson.

Hugh J. Burns, Esq., Regina M. Oberholzer, Philadelphia, for Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice BAER.

We are asked to consider whether the sentencing enhancement codified at 42 Pa. C.S. § 9712, which imposes a mandatory sentence enhancement on a person who visibly possesses a firearm or firearm replica during the commission of a crime of violence,¹ applies to an unarmed co-conspirator to the underlying crime where his accomplice brandishes a firearm during the commission of the offense. Before reaching the merits, however, we must determine whether Appellant waived his challenge to § 9712 by failing to raise it first in the trial court. We find that Appellant preserved the issue raised herein in the lower courts, and that it therefore is ripe for our review. We also hold that the Superior Court has erred in applying the § 9712 sentencing enhancement to unarmed co-conspirators. Thus, we reverse.

I. Background

The facts underlying Appellant's conviction are neither complicated nor subject to material dispute. The afternoon of April 21, 2001, found Derek Cunningham, the victim, speaking with Tiara Van Leer. Cunningham recently had sold Van Leer a car; presently, she was asking Cunningham to take back the car and refund the sales price. Cunningham agreed to take back the car, but offered to refund only $250 of the $300 sales price.

Van Leer's cousin Ravah Dickson (Appellant), who stood nearby, expressed the view that Cunningham should refund Van Leer more than $250 of the sales price. Appellant then left the scene and returned a few minutes later with co-defendant William Brown and one Bruce Veney, also Van Leer's cousin.² Soon after their return, Appellant restrained Ruffin in a bear hug while Brown pulled a gun, placed it against Cunningham's head, and demanded all of Cunningham's money and the keys to the car. Cunningham surrendered $256 and the keys. Appellant warned Cunningham not to call the police, then he and the others left the scene.

Appellant and Brown were arrested and tried together before a jury in the Court of Common Pleas of Philadelphia County. Brown was convicted of robbery and criminal conspiracy;³ Appellant was convicted of conspiracy but acquitted of robbery.

On March 25, 2002, the trial court convened a sentencing hearing. There, Appellant, noting that the original indictment was couched in terms of theft, robbery, and conspiracy to commit same, and further pointing out that he was convicted of conspiracy but acquitted of robbery, argued that his conspiracy offense should be graded as a misdemeanor since the jury verdict was ambiguous regarding to which predicate offense (i.e., theft or robbery) the conspiracy conviction applied. The Commonwealth disagreed — and the trial court shared its view — that the charge of conviction, criminal conspiracy, was criminal conspiracy to commit robbery.⁴ See Notes of Testimony (N.T.), 3/25/02, at 5 ("THE COURT: . . . The jury found you guilty of Conspiracy to Rob . . .").

Appellant next called the court's attention to an Apprendi motion then pending.⁵ He argued that because the Commonwealth need only prove by a preponderance of the evidence that the mandatory minimum sentence applies, § 9712 violates Apprendi's requirement that all substantive elements of an offense be proved before a jury beyond a reasonable doubt.

Before the trial court could interject, Appellant then argued that application of the mandatory minimum "takes away the discretion of the court to impose a lesser sentence." N.T., 3/25/02, at 4. Appellant proceeded to argue, based on the differences between Appellant's and co-defendant's conduct, that Appellant's case warranted precisely the lesser sentence precluded by application of the § 9712 mandatory minimum. The court cut Appellant's counsel off, however, foreclosing further argument:

I think case law is supportive of the Commonwealth's position. I have no discretion.

Mr. Dixon, on bill of information 0022, January Term 2002, where the jury found you guilty of Conspiracy to Rob, this court sentences you to five to ten years in a state correctional institution, [and] 207 dollars cost[s] of court.

N.T., 3/25/02, at 5. Appellant's judgment of sentence, therefore, was precisely the minimum sentence permissible given the trial court's reading of the law to require imposition of the § 9712(a) mandatory minimum sentence of five years.

On direct appeal, Appellant contested the validity of the application of § 9712(a) to an unarmed co-conspirator. The Superior Court, noting that it repeatedly has rejected this argument, see, e.g., Commonwealth v. Chiari, 741 A.2d 770 (Pa.Super.1999), and that this Court has denied allowance of appeal of these rulings, see, e.g., Commonwealth v. Walker, 386 Pa.Super. 100, 562 A.2d 373 (1989), appeal denied, 525 Pa. 618, 577 A.2d 889 (1990), declined Appellant's invitation to overturn its prior precedent and affirmed Appellant's judgment of sentence. This appeal followed.

II. Waiver

Preliminarily, we must determine whether Appellant failed in the trial court to raise his challenge to the application of 42 Pa.C.S. § 9712, and, if so, whether this failure waived any later challenge on appeal. The Superior Court disregarded the first part of this inquiry, and summarily disposed of the latter part with a single sentence: "As Appellant's claim implicates the legality of his sentence, Appellant may appeal as of right." Super. Ct. Slip Op. at 2 (citing Commonwealth v. Eddings, 721 A.2d 1095, 1098 (Pa.Super.1998)). Were the latter proposition unproblematic, we might well decide similarly; if the sentence clearly implicates the legality of sentence, whether it was properly preserved below is of no moment, as a challenge to the legality of sentence cannot be waived. See, e.g., Commonwealth v. Aponte, 579 Pa. 246, 855 A.2d 800, 802 n. 1 (2004). While this Court is clear on the non-waivability of challenges to sentences based upon their legality, we continue to wrestle with precisely what trial court rulings implicate sentence legality. See, e.g., McCray v. Pennsylvania Dep't of Corrs., 582 Pa. 440, 872 A.2d 1127, 1138 (2005) (Saylor, J., concurring) (noting "prevailing uncertainty concerning the breadth of the legality-of-sentence exception to general principles of waiver and preclusion").

The Commonwealth contends that Appellant failed to preserve the argument raised before this Court — that § 9712 in plain terms cannot apply to enhance the sentence of an unarmed co-conspirator. Rather, it argues, at sentencing "[Appellant] objected to the imposition of the mandatory minimum on the grounds that the jury had supposedly convicted him of conspiracy to commit theft, to which the mandatory minimum does not apply, and that the sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)." Brief for Appellee at 4 (record citation and footnotes omitted).

Appellant, who did not anticipate the waiver argument in its principal brief to this Court, responds in his Reply Brief that the Commonwealth has misconstrued the record. Specifically, he argues that while he initially allowed that he "would certainly have to concede the mandatory issue," Reply Brief for Appellant at 2 (quoting N.T., 3/25/02, at 2), he did so only after submitting three specific challenges to the trial court — "one directed to verdict; one directed to Apprendi . . .; and one directed to the concern raised in this appeal." Reply Brief for Appellant at 3. He then quotes an exchange in which he argued that "applying the mandatory minimum takes away the discretion of the court to impose a lesser sentence" and that his case called for precisely the sort of downward deviation precluded by a mandatory sentence. Reply Brief for Appellant at 3 (quoting N.T., 3/25/02, at 3-4). The court, however, cut off Appellant's argument, observing, "I think case law is supportive of the Commonwealth's position. I have no discretion." N.T., 3/25/02, at 4. Focusing on the trial court's statement precluding further argument on the application of the mandatory minimum sentence, Appellant argues that "[w]here, as here, the trial court correctly recognized [A]ppellant's claim in its nascency [sic], but cut [A]ppellant off before it could be fully articulated based upon a clear line of extant appellate authority, it would be unreasonable and unfair to hold the claim waived." Reply Brief for Appellant at 4.

While the Commonwealth raises a colorable claim that Appellant did not expressly preserve the application of § 9712 to an unarmed co-conspirator in the robbery here at issue, Appellant ultimately must prevail. In context, the relevant colloquy reveals that Appellant exhausted his argument regarding whether the conspiracy conviction concerned the underlying theft or robbery charges, and indeed the court resolved any uncertainty when it stated on the record that the conspiracy charge applied to robbery. Upon losing that argument, Appellant shifted gears to make a brief argument under Apprendi and then segued seamlessly into his argument that the consequence of the mandatory minimum was more harsh than this case warranted.

The Commonwealth is correct insofar as Appellant never explicitly argued that § 9712 cannot apply in this case because Appellant was not armed. Whether this deficiency occurred because counsel did not entirely appreciate the issue or because the court cut counsel off mid-argument to preempt any further discussion is something we cannot know at this time. What we do know is that counsel argued that Appellant's conduct differed from his co-defendant's to an extent counsel...