concluding, in accordance with Newman, that a court of common pleas had performed “an impermissible legislative function” by submitting special interrogatories to a jury in an effort to work around the unconstitutional terms of a statute directing that fact-finding relative to a mandatory minimum sentence was to be accomplished at the sentencing stage
How later courts described this case
- concluding, in accordance with Newman, that a court of common pleas had performed “an impermissible legislative function” by submitting special interrogatories to a jury in an effort to work around the unconstitutional terms of a statute directing that fact-finding relative to a mandatory minimum sentence was to be accomplished at the sentencing stage
- holding that there was sufficient evidence to prove the assailant’s identity where the complainant identified the appellant as the assailant shortly after the crime occurred, at the preliminary hearing, and at trial, and the complainant’s purse was found -6- J-S52030-19 in a dumpster outside of the appellant’s apartment
- finding that § 9712 violates the United States Supreme Court’s decision in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which requires that any facts leading to an increase in manda tory minimum sentence must be presented to a jury and proven beyond a reasonable doubt
- stating that “[a]lthough common items of clothing and general -5- J-S42027-18 physical characteristics are usually insufficient to support a conviction, . . . [g]iven additional evidentiary circumstances, any indefiniteness and uncertainty in the identification testimony goes to its weight”
Written by the judges who cited it.
The opinion
*813 CONCURRING OPINION BY
GANTMAN, P.J.:
I agree with the majority that sufficient evidence supported Appellant’s robbery conviction. I am also compelled to agree that we must vacate the judgment of sentence and remand for re-sentencing, given the binding nature of this Court’s recent en banc decision in Commonwealth v. Newman, 99 A.3d 86 (2014). The majority logically extends Newman to declare that 42 Pa.C.S.A. §§ 9712 and 9713 are likewise unconstitutional.
I write separately, however, to address an alternative available to the court upon re-sentencing. The sentencing court, perhaps, could apply a deadly weapon enhancement to Appellant’s sentence without running afoul of Newman. See Commonwealth v. Buterbaugh, 91 A.3d 1247 , 1270 n. 10 (Pa.Super.2014) (explaining that if sentencing enhancement applies, court is required to raise standard guideline range; however, court retains discretion to sentence outside guideline range; therefore, application of sentencing enhancement does not violate holding in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151 , 186 L.Ed.2d 314 (2013)).
Thus, I accept the majority’s ultimate decision to vacate the judgment of sentence and remand for re-sentencing without consideration of mandatory mínimums set forth in Sections 9712 and 9713. Accordingly, I concur in the result.
Judge ALLEN joins this Concurring Opinion.
Justice FITZGERALD joins this Concurring Opinion.