Com. v. Foster

Decision Date22 October 2008
Docket NumberNo. 3450 EDA 2006,3450 EDA 2006
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Oliver FOSTER, Appellant.
CourtPennsylvania Superior Court
960 A.2d 160
2008 PA Super 252
COMMONWEALTH of Pennsylvania, Appellee
Oliver FOSTER, Appellant.
No. 3450 EDA 2006
Superior Court of Pennsylvania.
Argued February 5, 2008.
Filed October 22, 2008.

[960 A.2d 161]

Jennifer Chiccarino, Philadelphia, for appellant.

Regina M. Oberholzer, Asst. Dist. Atty., for Com., appellee.



¶ 1 Oliver Foster appeals from the November 30, 2006 judgment of sentence of five to ten years imprisonment that was imposed after he was convicted of robbery. We conclude that Appellant, as an unarmed coconspirator in an armed robbery, was improperly sentenced pursuant to 42 Pa.C.S. § 9712(a). We therefore vacate the judgment of sentence and remand for re-sentencing.

¶ 2 On January 16, 2006, an arrest warrant was issued for Appellant based upon an incident that occurred on January 6, 2006. Appellant was charged with robbery, conspiracy, two counts of theft, possession of an instrument of crime, reckless endangerment, terroristic threats, carrying an unlicensed firearm, and carrying a firearm on a public street in Philadelphia. On October 11, 2006, the matter proceeded to a nonjury trial. The victim, Roger Snyder, testified as follows. At 8:40 p.m. on January 6, 2006, he was at home in his apartment located on 8777 Glenloch Place, Philadelphia, when Appellant, whom Mr. Snyder had known for three years, arrived with a man identified only as Darryl.1 Appellant, in accordance with his routine, knocked on Mr. Snyder's window, and the victim allowed him to enter. Darryl, who had been hiding from view, followed Appellant into the apartment. Darryl approached the victim and said, "Come on, let's go. We're going to the ATM machine." N.T., 10/11/06, at 19. Darryl then raised his jacket, displaying "an automatic [gun] in his waistband." Id. Appellant just "stood back. He didn't say anything or do anything." Id.

960 A.2d 162

¶ 3 Mr. Snyder retrieved his jacket, and the three men went outside. Appellant walked ahead while Darryl lagged behind to walk next to Mr. Snyder. Ten minutes later, they arrived at an ATM machine. Darryl demanded the victim's ATM card, which Darryl placed into the machine. Darryl instructed the victim to "[p]unch in your numbers." Id. at 21. Mr. Snyder did as told, and Darryl extracted $100 and then an additional $300 from Mr. Snyder's account. At that point, Darryl's brother arrived in a large silver Jeep or Hummer, and Darryl said to Appellant, "[T]his is my brother." Id. at 22. Darryl entered the car and left the scene. Appellant did not enter the vehicle; instead, he started to walk along with Mr. Snyder. "Then all of a sudden [Appellant] took off." Id.

¶ 4 Philadelphia Detective Sarah Valentino was assigned to investigate the matter. After Appellant was arrested, he gave her a statement in which he admitted that he took a man known as "D" to the victim's home. Id. at 30. He explained that he owed "D" money, which "D" wanted repaid, and that Appellant took "D" to the victim's house because the victim owed Appellant $115. Appellant continued that once they arrived at Mr. Snyder's home, "D" told Mr. Snyder that he had a gun, looked through the victim's wallet, and took a MAC card. Appellant admitted that they then went to a nearby ATM machine and that "D" forced Mr. Snyder to withdraw money. Appellant also acknowledged that after the robbery, "D" entered a vehicle and left the area. Appellant informed the detective that following the incident, he walked Mr. Snyder "back to his house and told him I was sorry." Id. at 31. Appellant claimed that he was unaware that "D" was carrying a firearm when they entered Mr. Snyder's home.

¶ 5 The Commonwealth introduced into evidence the transaction receipts for the withdrawals and established that the ATM machine at the Washington Savings Bank located at 8729 Frankford Avenue had been utilized. Based on this evidence, the trial court found Appellant guilty of robbery, conspiracy, theft, and possession an instrument of crime and acquitted him of the remaining charges. The case proceeded to sentencing on November 30, 2006.

¶ 6 Appellant, who was forty-five years old, had no prior convictions. The sentencing guidelines called for twenty-two to thirty-six months incarceration plus or minus twelve months. However, the sentencing court did not consider the guidelines because the Commonwealth invoked 42 Pa.C.S. § 9712(a),2 which is the mandatory minimum sentencing provision applicable to commission of certain crimes, including robbery, while in visible possession of a firearm.

¶ 7 At the time of Appellant's sentencing, prevailing Superior Court authority provided that unarmed co-conspirators were subject to the provisions of section 9712(a), even when they did not possess the firearm used during the commission of the crime. E.g., Commonwealth v. Chiari,

960 A.2d 163

741 A.2d 770 (Pa.Super.1999). Accordingly, Appellant, who admittedly was not visibly in possession of a firearm during the robbery, was sentenced under 42 Pa.C.S. § 9712(a) to five to ten years imprisonment. This appeal followed.

¶ 8 Four months after Appellant was sentenced, on March 29, 2007, our Supreme Court issued its decision in Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95 (2007). In Dickson, the Court overruled Superior Court case law and held that section 9712(a) does not apply to an unarmed co-conspirator when his accomplice visibly possessed the firearm used to facilitate the crime. Appellant's Pa.R.A.P.1925(b) statement was filed after the Dickson decision; in that statement, he challenged application of section 9712(a) based upon that case. He now asks us to reverse his judgment of sentence and to remand this case for sentencing without imposition of the mandatory minimum sentencing provision of 42 Pa.C.S. § 9712(a).

¶ 9 The issue that we confront is whether the holding in Dickson can be applied herein. For the reasons that follow, resolution of this question hinges on whether Appellant's challenge to application of section 9712(a) relates to the legality of his sentence or to the discretionary aspects of it. Appellant did not raise any objection to application of section 9712(a) at sentencing or in a post-sentence motion. Claims relating to the discretionary aspects of a sentence are waived if not raised either at sentencing or in a post-sentence motion. See Commonwealth v. Shugars, 895 A.2d 1270 (Pa.Super.2006). Even if properly preserved, such a claim also is waived if an appellant does not include a Pa.R.A.P. 2119(f) statement in his brief and the opposing party objects to the statement's absence. Id.

¶ 10 If the sentencing claim herein is found to relate to the discretionary aspects of his sentence, Appellant's inclusion of the issue in his Pa.R.A.P.1925(b) statement will not save it from being waived because Appellant failed to raise it in the court below, as required by Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). See Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278 (Pa.Super.2004) (en banc) (fact that an issue is included in a Pa.R.A.P.1925(b) statement does not obviate its waiver under Pa.R.A.P. 302(a)).

¶ 11 On the other hand, claims pertaining to the legality of sentence are non-waivable, may be leveled for the first time on appeal, and our jurisdiction need not be invoked in a Pa.R.A.P. 2119(f) statement. Commonwealth v. Dickson, supra at 99 ("challenges to sentences based upon their legality" are not subject to waiver); see also Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa.Super.2007) (en banc) ("A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained [as] long as the reviewing court has jurisdiction."). In fact, such a claim is not even waived by a party's failure to include it in a Pa.R.A.P.1925(b) statement. Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super.2001) (Commonwealth did not waive position that trial court erred in failing to impose mandatory minimum sentence under recidivist statute, 42 Pa.C.S. § 9714, even though claim was not included in Commonwealth's Pa.R.A.P.1925(b) statement).

¶ 12 This dichotomy in treatment of sentencing issues derives from language in 42 Pa.C.S. § 9781(a) and (b).3 Under subsection

960 A.2d 164

(a) of section 9781, "The defendant or the Commonwealth may appeal as of right the legality of the sentence." However, under subsection (b) of that section, our jurisdiction must be invoked with a petition for allowance of appeal when the issue involves the discretionary aspects of a sentence. In addition, the petition must raise a substantial question as to the appropriateness of the sentence.

¶ 13 We respectfully observe that the appellate courts of Pennsylvania have struggled with the concept of whether a sentencing claim relates to the legality of sentence or the discretionary aspects of it. See Commonwealth v. Dickson, supra ("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 also McCray v. Pennsylvania Dept. of Corrections, 582 Pa. 440, 872 A.2d 1127, 1138 (2005) (Saylor J., concurring) (cited in Dickson and commenting upon the "prevailing uncertainty concerning the breadth of the legality-of-sentence exception to general principles of waiver"). We must stress at the onset that in Dickson, the majority of the Court specifically found that the defendant had preserved at sentencing his objection to application of the mandatory minimum sentence imposed in section 9721(a). Consequently, the majority did not address the question of whether that defendant's challenge related to the discretionary aspects or legality of sentence.4

¶ 14 Thus, we must closely examine controlling Supreme Court precedent for guidance in answering the question...

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