Commonwealth of Pa. v. FOSTER
| Decision Date | 29 March 2011 |
| Docket Number | No. 7 EAP 2009,7 EAP 2009 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellant v. OLIVER FOSTER, Appellee |
| Court | Pennsylvania Supreme Court |
OPINION TEXT STARTS HERE
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
Appeal from the Judgment of the Superior Court entered on October 22, 2008 at No. 3450 EDA 2006 Vacating and Remanding the Judgment of Sentence entered on November 30, 2006 in the Court of Common Pleas, Philadelphia County, Criminal Division, at No. CP-51-CR-0109521-2006.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
In Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007), this Court determined that Section 9712(a) of the Judicial Code, which directs imposition of a mandatory minimum sentence of not less than five years of imprisonment upon any person convicted of an enumerated violent crime while in visible possession of a firearm, did not apply to any "unarmed co-conspirators." In this case, we are called to decide whether a "Dickson challenge" by an unarmed co-conspirator implicates the legality of the unarmed coconspirator's sentence for purposes of issue preservation and waiver.1 The Superior Court below determined that such a challenge implicates the legality of the sentence; thus, the Superior Court concluded that "Dickson challenges" cannot be waived based on a defendant's failure to raise them in post-sentence motions, or, likewise, for a defendant's failure to file a statement of reasons relied upon for allowance of appeal pursuant to Pa. R.A.P. 2119(f). See supra note 1. For the reasons that follow, we affirm.
The factual and procedural background of this case is undisputed. On the evening of January 6, 2006, the victim, Roger Snyder, was home in his apartment in Philadelphia. Mr. Snyder and Oliver Foster (Appellee) had been acquaintances for approximately three years. At approximately 8:40 p.m. on the evening in question, Appellee and a second man known only as Darryl arrived at Mr. Snyder's residence. As was his custom, Appellee knocked on Mr. Snyder's window to gain access to the inside of the apartment. When Mr. Snyder opened the door to allow Appellee inside, Darryl, who had been hidden from view, followed Appellee into the apartment. Darryl then approached Mr. Snyder and said, Notes of Testimony (N.T.), Oct. 11, 2006, at 19. Darryl then lifted the front of his jacket to reveal an automatic firearm in his waistband.
The three men then walked to an ATM machine. Darryl withdrew $400 (in two different transactions of $100 and $300, respectively) from Mr. Snyder's bank account. Immediately thereafter, Darryl's brother arrived in a silver SUV, and Darryl entered the vehicle, leaving the scene. Appellee did not follow Darryl, but instead walked a short distance with Mr. Snyder, before suddenly fleeing the area on foot.
Philadelphia Police Detective Sarah Valentino was assigned to investigate the robbery, and arrested Appellee on January 16, 2006. After his arrest, Appellee voluntarily told Detective Valentino that he took a man known as "D" to Mr. Snyder's apartment. Apparently, Appellee owed "D" money, and, coincidentally, Mr. Snyder owed Appellee money. Accordingly to Appellee, upon entering the home, "D" showed Mr. Snyder the firearm, looked through Mr. Snyder's wallet, and then the three men left the apartment for an ATM machine. After "D" withdrew the $400, he entered the silver SUV and fled the area. No evidence, however, suggested that Appellee himself visibly possessed a firearm.
Based upon Mr. Snyder's account of the events in question, as well as Appellee's admissions, Detective Valentino charged Appellee with robbery, conspiracy, two counts of theft, possession of an instrument of crime (PIC), reckless endangerment, terroristic threats, carrying an unlicensed firearm, and carrying a firearm on a public street in Philadelphia.2 Appellee elected to proceed via a nonjury trial, which commenced on October 11, 2006. At the conclusion of trial, the trial court convicted Appellee of robbery, conspiracy, theft, and PIC, and acquitted him of the remaining charges.
Prior to sentencing, the Commonwealth invoked the mandatory minimum sentencing provision of 42 Pa.C.S. § 9712(a), which provides,
Except as provided under section 9716 (), any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) (), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. Such persons shall not be eligible for parole, probation, work release or furlough.[3]
A sentencing hearing was subsequently held on November 30, 2006. Appellee had no prior convictions, and the sentencing guidelines suggested twenty-two to thirty-six months of minimum incarceration, plus or minus twelve months. As robbery is a felony of the first degree, the most Appellee could have been sentenced to serve was twenty years of incarceration. 18 Pa.C.S. § 1103(1). At the hearing, defense counsel, the prosecuting attorney, and the trial court all acknowledged that, under the accepted reading of Section 9712(a) at the time of sentencing, imposition of a minimum term of imprisonment of five years was mandatory, based upon Appellee's conviction for robbery, and Darryl's possession of a firearm.4 See e.g., N.T., Nov. 30, 2006, at 4 (). Accordingly, the court sentenced Appellee to a term of imprisonment of five to ten years. Appellee then filed post-sentence motions and, subsequently, a timely notice of appeal to the Superior Court; neither of these, however, were related to sentencing issues.
Approximately four months after the court imposed sentence, this Court issued its decision in Dickson, supra p. 1, in which we held that the Section 9712(a) mandatory minimum does not apply to so-called "unarmed co-conspirators." Being an unarmed co-conspirator, Appellee immediately petitioned the Superior Court for leave to file a motion for modification of sentence nunc pro tunc in the trial court.5 The Superior Court denied the motion, but specified that such denial was without prejudice to raise a challenge under Dickson on direct appeal. Upon order by the trial court, Appellee then filed a timely statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925(b), in which he included a request for relief under Dickson. The trial court, in its Pa. R.A.P. 1925(a) opinion concluded that Appellee's "Dickson challenge" was without merit, and the imposed sentence was proper, under the law at the time of its imposition.
As explicitly permitted by the Superior Court, Appellee raised his "Dickson challenge" as part of his merits argument in his direct appeal. See Commonwealth v. Foster, 960 A.2d 160 (Pa. Super. 2008). Before reaching those merits, however, the Superior Court determined that it was required first to analyze whether Appellee's challenge was properly before it, as Appellee had failed to file post-sentence motions concerning his "Dickson challenge" with the trial court. See Commonwealth v. Shugars, 895 A.2d 1270 (Pa. Super. 2006) (). Moreover, Appellee apparently did not set forth a statement of reasons relied upon for allowance of appeal in his principal brief to the Superior Court pursuant to Pa. R.A.P. 2119(f). See Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987) (). However, the court also considered this Commonwealth's longstanding jurisprudence that a challenge to the legality of one's sentence can never be waived. See e.g. Dickson, 918 A.2d at 99. Thus, if Appellee's "Dickson challenge" implicated the legality of his sentence, Appellee's failure to file post-sentence motions or a Rule 2119(f) statement would be of no moment. Id.
The panel first analyzed the scenarios which this Court has found "unequivocally relate to the legality of sentence." Foster, 960 A.2d at 164. First, any claim, which asserts a sentence exceeds the lawful maximum, implicates the legality of the sentence. See e.g. Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005).7 Related to this first instance, the panel recognized that any challenge premised upon the United States Supreme Court's holding in Apprendi v. New Jersey8 involves a sentence's legality:
In the Apprendi setting, a defendant asserts that the maximum sentence to which he was subject was unconstitutionally increased based upon the existence of a fact that should have been submitted to a jury rather than determined by the sentencing court. Thus, if a defendant were to prevail on an Apprendi violation, he would have been sentenced in excess of the sentence that should otherwise have been imposed within constitutional parameters.
Foster, 960 A.2d at 165 (citing Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004) (Castille, J. (now, C.J.), concurring)).
Second, the panel found that this Court has concluded that a challenge by the Commonwealth that the sentencing court improperly refused to impose a mandatory minimum sentence or fine implicated the legality of a defendant's sentence, and thus was also nonwaivable. Indeed, on two occasions, Commonwealth v. Vasquez, 744 A.2d 1280 (Pa. 2000), and Commonwealth v. Smith, 598 A.2d 268 (Pa. 19...
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