Com. v. Pelzer, C.

C
J-S54006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CAINE SHEPPARD PELZER                      :
                                               :
                       Appellant               :   No. 1279 MDA 2019

          Appeal from the Judgment of Sentence Entered April 15, 2002
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0001989-2001


BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                                FILED MAY 26, 2021

       Appellant, acting pro se, appeals nunc pro tunc from the judgment of

sentence imposed following his convictions for robbery and related offenses.

Appellant challenges the trial court’s rejection of his Batson1 claim, alleges

violations of his speedy trial rights, and argues that his mandatory-minimum

sentences for robbery are illegal. We affirm Appellant’s convictions, vacate

Appellant’s judgment of sentence, and remand the matter for resentencing.

       The underlying facts of this matter are well known to the parties. Briefly,

Appellant was sentenced to an aggregate term of twenty-two to forty-four

years’ incarceration after he was convicted for robbery and related offenses in




____________________________________________


1   Batson v. Kentucky, 

476 U.S. 79

 (1986).
J-S54006-20



2002.2 Appellant filed a timely direct appeal in which his sole claim pertained

to trial counsel’s ineffectiveness.3           While Appellant’s direct appeal was

pending, our Supreme Court decided Commonwealth v. Grant, 

813 A.2d

726

 (Pa. 2002), which held that ineffectiveness claims must be raised in a

petition for relief under the Post-Conviction Relief Act4 (PCRA). As a result,

this Court dismissed Appellant’s appeal without prejudice and affirmed his

judgment of sentence. See Commonwealth v. Pelzer, 987 MDA 2002 (Pa.

Super. filed May 7, 2003) (unpublished mem.).

        Appellant’s sentence became final on June 6, 2003. Although Appellant

was represented by appellate counsel, Appellant did not file a timely PCRA

petition within the one-year deadline. Appellant subsequently filed multiple

untimely PCRA petitions, all of which were dismissed based on the PCRA time

bar.

        In 2015, Appellant filed a petition for writ of habeas corpus with the

United States Court for the Eastern District of Pennsylvania. See Pelzer v.

____________________________________________


2 The trial court applied a mandatory minimum sentence based on Appellant’s
visible possession of a firearm during the robbery. See 42 Pa.C.S. § 9712(a).
Section 9712(a) was later held unconstitutional by this Court in
Commonwealth v. Valentine, 

101 A.3d 801

, 812 (Pa. Super. 2014) (citing
Alleyne v. United States, 

570 U.S. 99

 (2013) (holding that any fact that
increases the mandatory minimum sentence is an element that must be
submitted to the jury and found beyond a reasonable doubt)).

3 We note that although Appellant included additional claims in his Pa.R.A.P.
1925(b) statement, appellate counsel abandoned those issues on appeal to
this Court.

4   42 Pa.C.S. §§ 9541-9546.

                                           -2-
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Mahally, 

388 F. Supp. 3d 366

, 371-72 (M.D. Pa. 2019). Therein, Appellant

sought reinstatement of his appellate rights, alleging that he had been

abandoned by appellate counsel.                Appellant also raised additional issues

relating to trial counsel’s ineffectiveness, violations of his speedy trial rights,

and other substantive claims. See 

id.

       On January 18, 2019, the district court granted Appellant a conditional

writ of habeas corpus, which ordered Appellant’s release from custody unless

the state court reinstated his direct appeal and post-conviction rights nunc pro

tunc within 180 days.        See 

id. at 369

.         The district court explained that

Appellant’s direct appeal and post-conviction rights “may have been forfeited,

in large measure, due to counsel’s inaction” and that “granting this limited

relief ensures that the merits of any claims raised by [Appellant] are fully

developed and considered by the state courts.” 

Id. at 381

.

       On December 26, 2019,5 the trial court issued an order reinstating

Appellant’s direct appeal and post-conviction rights nunc pro tunc. Appellant

subsequently filed a timely pro se notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) statement.

       In its Rule 1925(a) opinion, the trial court rejected several of Appellant’s

issues based on its conclusion that the district court’s recommendation
____________________________________________


5 The trial court initially reinstated Appellant’s appeal rights nunc pro tunc on
July 3, 2019. However, after new counsel abandoned Appellant on appeal,
the matter was remanded to the trial court for a hearing pursuant to
Commonwealth v. Grazier, 

713 A.2d 81

, 82 (Pa. 1998), and Appellant
ultimately decided to proceed pro se. See Trial Ct. Op., 7/17/20, at 26-27.


                                           -3-
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pertained solely to Appellant’s PCRA claims and, therefore, Appellant’s direct

appeal claims were not properly before the court for review. See Trial Ct. Op.

at 8-9. In any event, the trial court addressed each of Appellant’s issues and

concluded that they were meritless.

     On appeal, Appellant raises the following issues, which we have

reordered as follows:

     1. Whether the Commonwealth and trial court violated Appellant’s
        [rights under the] Fourteenth Amendment Equal Protection
        Clause under the United States and Pennsylvania Constitutions
        by allowing the prosecutor to use peremptory challenges to
        exclude blacks from the jury in a case the prosecution called a
        “interracial crime” and whether the trial court committed
        reversible error when it failed to undertake a sensitive inquiry
        into such direct and circumstantial evidence which would have
        made the prosecution come forward with a neutral explanation
        for challenging the jurors which relates to the particular case
        to be tried?

     2. Whether the Commonwealth of Pennsylvania violated United
        States and Pennsylvania Constitutions when it denied the
        Appellant a speedy trial pursuant to the Sixth and Fourteenth
        Amendment and whether the Commonwealth violated articles
        of the Extradition Act, Interstate Agreement on Detainers Act
        (IAD) (42 Pa.C.S. §§ 9101–08), Uniform Criminal Extradition
        Act (42 Pa.C.S. § 9121, et seq.), [and] Pa.R.Crim.P. 600 [by]
        failing to bring Appellant to trial within 180 days of his written
        request for extradition from New York City to Luzerne County,
        Pennsylvania, then moving Appellant to multiple county prisons
        in Pennsylvania in an attempt to make Appellant unavailable
        for trial and hindering [A]ppellant’s access to witnesses,
        warranting dismissal for lack of subject matter jurisdiction and
        lack of jurisdiction and whether all counts in the indictment
        should have been dismissed for violation of Pa.R.Crim.P. 600
        as count 24 of the indictment was?

     3. Whether Pennsylvania’s mandatory minimum sentence under
        42 Pa.C.S. § 9712 for offenses committed with firearms is
        unconstitutional which was illegally applied to the Appellant’s


                                      -4-
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         case under the Pennsylvania and United States Constitutions
         since he was acquitted of all firearms charges but erroneously
         sentenced under the act and its application being in conflict
         with the plain language of 204 Pa.Code § 303.10 which violated
         the Appellant’s Fifth, Sixth, Eighth, Fourteenth Amendments
         due process and double jeopardy clause of the [Pennsylvania]
         and U.S. Constitutions constituting an abuse of discretion in its
         severity?

      4. Whether Pennsylvania’s mandatory minimum sentence under
         42 Pa.C.S. § 9712 is illegal, unconstitutionally invalid, void and
         of no force and effect as applied to the Appellant where he was
         charged, tried and acquitted of numerous firearms violations,
         but subsequently sentenced to a determinate sentence of 44
         years of total incarceration where he is actually innocent of his
         sentence enhancement in light of Alleyne v. U.S., 

33 S.Ct.
2151

 (2013); Commonwealth v. Hopkins, 

117 A.3d 247

         (2015); Montgomery v. Louisiana, 

136 S.Ct. 718

 (2016),
         thereby violating Appellant’s [rights under the] Sixth, Eighth
         and Fourteenth Amendments to the Pennsylvania and United
         States Constitutions going beyond he states power to impose
         such illegal penalty?

      5. Whether [the] trial court is enforcing an illegal penalty upon
         Appellant which automatically sentenced him to 44 years
         pursuant to the plain language of [] 42 Pa.C.S. § 9712(a),
         which denies eligibility for probation, parole, work release or
         furlough once sentenced under the act in violation of the Sixth
         and Eighth Amendments to the United States and Pennsylvania
         Constitutions for substantive violations which he is actually
         innocent of that automatically altered the range of conduct and
         punishment which turns an indeterminate sentence into a
         determinate one for a class of people in light of Alleyne,
         Hopkins, and Montgomery?

Appellant’s Brief at 4-5 (some formatting altered).

                               Scope of Appeal

      Initially, we must address the trial court’s contention that Appellant’s

direct appeal claims are not properly before this Court. In its Rule 1925(a)

opinion, the trial court reasoned that Appellant was not entitled to review of


                                      -5-
J-S54006-20



his direct appeal claims because this Court affirmed his judgment of sentence

after he filed a direct appeal in 2002. See Trial Ct. Op. at 8-9. However, the

record reflects that although Appellant filed a direct appeal in 2002, appellate

counsel did not raise any of Appellant’s preserved direct appeal claims. See

Commonwealth v. Pelzer, 987 MDA 2002 (Pa. Super. 2003) (unpublished

mem.).    Instead, appellate counsel raised a single claim challenging trial

counsel’s effectiveness, which resulted in this Court’s dismissal of the appeal.

See 

id.

      Further, although Appellant subsequently sought relief under the PCRA,

this Court ultimately rejected those efforts based on the untimeliness of

Appellant’s petitions. See Commonwealth v. Pelzer, 940 MDA 2009 (Pa.

Super. 2011) (unpublished mem.) (vacating the PCRA court’s order and

remanding for a hearing based on the newly discovered evidence exception to

the PCRA time bar); Commonwealth v. Pelzer, 1445 MDA 2013 (Pa. Super.

2014) (unpublished mem.) (affirming the dismissal of Appellant’s PCRA

petition as untimely); Commonwealth v. Pelzer, 1927 MDA 2016 (Pa.

Super. 2017) (unpublished mem.) (same). Therefore, contrary to the trial

court’s assertion, Appellant’s substantive claims have not been reviewed by

this Court.

      Moreover, the district court recommended reinstatement of Appellant’s

direct appeal and post-conviction rights after concluding that Appellant’s

“rights may have been forfeited, in large measure, due to counsel’s inaction.”

See Pelzer, 

388 F. Supp. 3d at 371-72

.      In accordance with that order, the

                                     -6-
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trial court reinstated Appellant’s direct appeal and post-conviction rights nunc

pro tunc. Under these circumstances, Appellant is entitled to review of his

direct appeal claims. See Commonwealth v. Pulanco, 

954 A.2d 639

, 642

(Pa. Super. 2008) (stating that where appellate counsel waives all appellate

issues and thereby completely denies the appellant the right to a direct appeal,

the appropriate relief is, in general, the reinstatement of direct appeal rights).

Therefore, we will consider all of Appellant’s issues on appeal.

                                 Batson Claim

       In his first claim, Appellant argues that the trial court erred in denying

his Batson challenge and allowing the Commonwealth to strike the only

African American person from the jury. Appellant’s Brief at 17. Appellant

contends that the Commonwealth’s “remarks of race, the racial tone,

demeanor and reason why he sought to remove the only black juror in the

jury pool was constitutionally impermissible, racially prejudicial and violated

[A]ppellant’s right to a fair trial.” 

Id.

 He argues that although there were

multiple jurors who stated that they were less likely to believe a police officer,

only the black juror was ultimately stricken for cause. 

Id. at 18

. Further,

Appellant claims that the trial court failed to “undertake a sensitive inquiry

into [] circumstantial and direct evidence” to determine the Commonwealth’s

intent. 

Id.

 Therefore, Appellant concludes that he was deprived of the right

to a fair trial.

       The Commonwealth responds that Appellant failed to establish a prima

facie Batson claim because “[s]imply claiming ‘racial profiling’ is insufficient.”

                                      -7-
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Commonwealth’s Brief at 11. Further, the Commonwealth notes that it “gave

a race neutral reason” for striking the juror because the juror indicated on her

questionnaire that she was less likely to believe a police officer.            The

Commonwealth contends that “[a]lthough she testified she could be fair and

consider an officer’s testimony to be no more or less credible than any other

witnesses’ testimony, the Commonwealth was free               to discount that

testimony.”   

Id.

   Finally, the Commonwealth notes that “[s]triking a juror

because they may disbelieve key witnesses in your case is a race neutral

reason for the strike.”   

Id.

   Therefore, the Commonwealth concludes that

there was no Batson violation and Appellant is not entitled to relief. 

Id.

      By way of background, the trial court summarized the facts underlying

Appellant’s Batson claim as follows:

      The Batson challenge was in fact preserved on March 13, 2002
      during voir dire . . . . [T]he trial judge that presided over the
      proceeding is no longer serving as a Court of Common Pleas
      Judge.

      A review of the transcript indicates that the parties initially waived
      the transcription of voir dire but then contacted the trial court
      requesting a stenographer when they recognized a potential
      Batson issue. The Assistant District Attorney explained to the
      court as follows, “Well, we saw there was a black juror and I
      indicated before we started juror selection, I said, [to the defense
      attorney,] I think this is going to be a problem. [This juror] has
      one of the red flag issues. I said to protect your client, let’s
      transcribe it.”      During a conference in chambers, the
      Commonwealth noted that [Appellant] is African American and
      charged with several crimes of robbery and initially misspoke
      when he stated that the four victims were Caucasian. He was
      corrected by defense counsel noting that one of the victims,
      Lonnie Lee, was black.



                                      -8-
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     The trial court was informed that Juror Number 7 was an African
     American woman that answered the question as to whether she
     would be less likely to believe the testimony of a police officer
     affirmatively. The Commonwealth indicated that she was less
     likely to believe the testimony of a police officer because of his job
     and that she was also the victim of a crime. The Commonwealth
     further stated the reason they intended to exercise one of their
     peremptory challenges on Juror Number 7 as follows, “But frankly,
     for the record, because one of the pieces of evidence in this case
     is [Appellant] gave a statement wherein he said that the New York
     City police officer who arrested him in New York with some of the
     stolen property in his possession from this robber, he said that the
     New York City police officer was lying. And he told this to Chief
     Miles Collins and Officer Reinard [].”

     The Commonwealth further stated that “the police officer’s
     testimony is going to be a major issue in the case” and Juror
     Number 7’s statement that, “she is not going - she is less likely to
     believe his testimony” was the basis for the peremptory challenge.
     Juror Number 7 was interviewed at side bar and questioned by
     defense counsel as to her written response on the jury
     questionnaire as to whether she would be less likely to believe the
     statement of a police officer with regard to evidence “simply
     because they are a police officer.” Juror Number 7 responded that
     she could be fair and impartial.

     The Commonwealth exercised a challenge to Juror Number 7 and
     the defense again asserted the Batson objection stating that the
     juror was “being struck as a result of racial profiling”. The Defense
     stated as follows: “She is of the same racial class as [Appellant]
     and there does not seem to be any proper cause to strike her
     other than the fact that she is of the same race as [Appellant].”
     The parties conducted argument outside of the presence of the
     jury.

     When asked to place the basis of the objection of record, the
     defense maintained that upon interview of the potential juror she
     stated she did not have “any problem in believing the testimony
     of a police officer over—or believing the testimony of a police
     officer as any witness.”

     Defense counsel further argued in pursuing the Batson challenge:
     “I oppose simply because she is of the same race as [Appellant].
     This is racial profiling. There does not seem to be a basis of this



                                     -9-
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       —your objection or any reason to strike her other than the fact
       she is black as the same as [Appellant].”

       Upon completion of the argument on the Batson challenge, the
       trial court ruled as follows, “On that basis, you haven’t established
       a prima facie case which would require the prosecution to put forth
       the striking; therefore, your motion is denied.”

Trial Ct. Op. at 35-41.

       A   Batson    claim    presents    mixed   questions   of    law   and   fact.

Commonwealth v. Edwards, 

177 A.3d 963

, 971 (Pa. Super. 2018).

Therefore, our standard of review is whether the trial court’s legal conclusions

are correct and whether its factual findings are clearly erroneous. 

Id.

 This

Court has explained:

       In Batson, the [Supreme Court of the United States] held that a
       prosecutor’s challenge to potential jurors solely on the basis of
       race violates the Equal Protection Clause of the United States
       Constitution. When a defendant makes a Batson challenge
       during jury selection:

           First, the defendant must make a prima facie showing that
           the circumstances give rise to an inference that the
           prosecutor struck one or more prospective jurors on account
           of race; second, if the prima facie showing is made, the
           burden shifts to the prosecutor to articulate a race-neutral
           explanation for striking the juror(s) at issue; and third, the
           trial court must then make the ultimate determination of
           whether the defense has carried its burden of proving
           purposeful discrimination.

Id.

 (citations and quotation marks omitted). “The trial court should consider

the totality of circumstances when determining whether the prosecutor acted

with   discriminatory     intent   or   engaged   in   purposeful   discrimination.”

Commonwealth v. Towles, 

106 A.3d 591

, 602 (Pa. 2014) (citation omitted).



                                         - 10 -
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This Court must give great deference to the trial court’s finding about the

absence of discriminatory intent in peremptory challenges, and we will not

overturn it unless it is clearly erroneous. See 

id.

      Here, the trial court addressed Appellant’s Batson claim as follows:

      In the case at bar, the trial court reviewed the basis of the Batson
      objection. The defense asserted that “I oppose simply because
      she is of the same race as [Appellant]. This is racial profiling.
      There does not seem to be a basis of this - your objection or any
      reason to strike her other than the fact she is black as the same
      as [Appellant].”     In reviewing the factors for prima facie,
      [Appellant] is a member of a cognizable racial group, however in
      turning to the second prong, the only argument articulated was
      that the challenge to Juror Number 7 was racial profiling. No other
      relevant circumstances were put forth.

      In the recent unreported case, Commonwealth v. Mills, 1045
      EDA 2018, 

2020 WL 1490949

 (Pa. Super. filed. Mar. 27, 2020)
      that is argued for persuasive value only, the Commonwealth
      challenged the single African American venire person. A Batson
      challenge was not raised by the defendant, but the
      Commonwealth wanted to note for the record that the venire
      person said she was less likely to believe the testimony of a police
      officer and many police officers were set to testify. The venire
      person also had a nephew that was awaiting trial in a similar case.
      The appellate court reviewed the claims set forth in Mills, noting
      that the striking of the only African American venire person from
      the pool of potential jurors would establish a prima facie case of
      purposeful discrimination in that case. It then turned to the
      second step of the Batson analysis noting the Commonwealth
      proffered a race-neutral explanation for striking the juror.

      In the case at bar, the Commonwealth immediately notified
      defense counsel that Juror Number 7 answered the question
      regarding the believability of a police officer in a concerning way.
      The Commonwealth noted that she answered a question creating
      a red flag issue. It was the Commonwealth that told [Appellant]
      that despite the agreement to waive the transcription, it was in
      [Appellant’s] best interest to transcribe the voir dire.




                                     - 11 -
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      The trial court directed [Appellant] to “Make your challenge.” The
      only basis offered in support of the objection to the challenge was
      racial profiling. [Appellant] did not offer any other circumstances
      giving rise to an inference that the juror was challenged on
      account of race. The trial court replied, “On that basis, you
      haven’t established a prima facie case which would require the
      prosecution to put forth the striking; therefore your motion is
      denied.” The trial court determined that [Appellant] failed to
      establish a prima facie case and stopped the Batson analysis.

      If the appellate court deems that a prima facie cause was in fact
      articulated, the record establishes that [Appellant] did not prove
      the second prong of the analysis in that the Commonwealth
      offered a race-neutral reason as to the peremptory challenge as
      follows:

         And Juror 7 said she is less likely to believe the testimony
         of a police officer because of his job and she was also the
         victim of a crime. But frankly, for the record, because one
         of the pieces of evidence in this case is [Appellant] gave a
         statement wherein he said that the New York City police
         officer who arrested him in New York with some of the stolen
         property in his possession from this robber, he said that the
         New York City police officer was lying. And he told this to
         Chief Miles Collins and Officer Reinard []. Obviously, the
         police officer’s testimony is going to be a major issue in the
         case. And I indicated to [defense counsel], it is no doubt
         that I want - I am going to exercise one of my peremptory
         [challenges] because of her statement that she is not going
         - she is less likely to believe his testimony.

      A review of the totality of the circumstances as placed of record
      illustrates that the Commonwealth offered a race-neutral basis
      and explanation for using the peremptory challenge. This claim
      as offered on direct appeal must fail.

Trial Ct. Op. at 39-41.

      Based on our review of the record, we discern no legal or factual error

in the trial court’s conclusions. See Edwards, 

177 A.3d at 971

. Because the

Commonwealth provided a race-neutral explanation for striking Juror 7, we

cannot conclude that the trial court’s rejection of Appellant’s Batson claim

                                     - 12 -
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was ‘clearly erroneous.’” See Towles, 

106 A.3d at 602

; Edwards, 

177 A.3d

at 971

. Under these circumstances, Appellant is not entitled to relief.

                            Speedy Trial Rights

      Appellant next argues that the Commonwealth violated his speedy trial

rights by failing to bring his case to trial within the time periods required by

Pa.R.Crim.P. 600, the Interstate Agreement on Detainers Act, and the Uniform

Agreement on Detainers Act. Appellant’s Brief at 29.

                                Rule 600 Claim

      Pursuant to Rule 600, a criminal trial must “commence within 365 days

from the date on which the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a).

After 365 days have passed, a defendant “may file a written motion requesting

that the charges be dismissed with prejudice.” 

Id. at 600

(D)(1). To preserve

a Rule 600 claim, a defendant must file a written motion to dismiss prior to

the commencement of trial. See Commonwealth v. Brock, 

61 A.3d 1015

,

1020 (Pa. 2013) (stating that “a motion to dismiss pursuant to [Rule] 600

must be made in writing, and a copy of such motion must be served on the

Commonwealth’s attorney”).

      Here, to the extent Appellant seeks relief based on Rule 600, our review

of the record confirms that he did not file a pretrial motion to dismiss.

Therefore, the trial court did not have an opportunity to conduct a hearing on,




                                     - 13 -
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or even consider, a Rule 600 claim.6 See Commonwealth v. Hunt, 

858 A.2d

1234

, 1241 (Pa. Super. 2004) (stating that Rule 600 claims must be presented

to the trial court while it has jurisdiction over the matter since the trial court

must conduct a hearing to assess the amount of excludable time); see also

Commonwealth v. Brock, 

61 A.3d 1015

, 1020 (Pa. 2013).                  Therefore,

Appellant’s Rule 600 claim is waived.

        Interstate Agreement on Detainers and Extradition Act7 Claims

       Our Supreme Court has described the IAD as follows:

       The IAD is an agreement between forty-eight states, the District
       of Columbia, Puerto Rico, the Virgin Islands, and the United
       States, that establishes procedures for the transfer of prisoners
       incarcerated in one jurisdiction to the temporary custody of
       another jurisdiction which has lodged a detainer against a
       prisoner. Unlike a request for extradition, which is a request that
       the state in which the prisoner is incarcerated transfer custody to
       the requesting state, a detainer is merely a means of informing
       the custodial jurisdiction that there are outstanding charges
       pending in another jurisdiction and a request to hold the prisoner
       for the requesting state or notify the requesting state of the
       prisoner’s imminent release.

Davis, 

786 A.2d at 175

.



____________________________________________


6To the extent Appellant alleges that the trial court dismissed other charges
based on a violation of Rule 600, see Appellant’s Brief at 29, that claim is not
supported by the record.

7 Like the IAD, the Extradition Act “establishes procedures for the interstate
transfer of persons against whom criminal charges are outstanding.”
Commonwealth v. Davis, 

786 A.2d 173

, 175 (Pa. 2001). “Unlike the IAD,
the Extradition Act applies to persons at liberty as well as to incarcerated
prisoners serving a sentence.” 

Id.

                                          - 14 -
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      Pursuant to Article III of the IAD, a prisoner against whom a detainer

has been lodged may file a “written notice and request for disposition”

requesting that he be transferred to the jurisdiction that filed the detainer and

brought to trial within 180 days. 42 Pa.C.S. § 9101, Article III(a); see also

Article III(b) (setting forth the requirements and the process for the prisoner’s

request).

      Article IV of the IAD provides that a prosecutor is

      entitled to have a prisoner against whom he has lodged a detainer
      and who is serving a term of imprisonment in any party state
      made available . . . upon presentation of a written request for
      temporary custody or availability to the appropriate authorities of
      the state in which the prisoner is incarcerated[.]

42 Pa.C.S. § 9101, Article IV(a). Under Article IV, “trial shall be commenced

within 120 days of the arrival of the prisoner in the receiving state, but for

good cause shown in open court, the prisoner or his counsel being present,

the court having jurisdiction of the matter may grant any necessary or

reasonable continuance.”    42 Pa.C.S. § 9101, Article IV(c).     However, our

Supreme Court has held that the 120-day requirement set forth in Article IV

“is not triggered unless the Commonwealth files a detainer against an

individual and then files a request for custody of that individual.”

Commonwealth v. Leak, 

22 A.3d 1036

, 1040 (Pa. Super. 2011) (discussing

Davis, 

786 A.2d at 175

).

      Here, the record contains no indication that Appellant filed a motion to

dismiss under the IAD.        Therefore, the issue is likely waived.        See



                                     - 15 -
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Commonwealth v. Blackburn, 

414 A.2d 638

, 641 (Pa. Super. 1979); see

also Pa.R.A.P. 302 (stating that “issues that are not raised in the lower court

are waived and cannot be raised for the first time on appeal”). In any event,

although Appellant agreed to waive his extradition and return to Pennsylvania,

there is no indication that he filed a written notice and request for disposition

of the charges against him pursuant to Article III. See 42 Pa.C.S. § 9101,

Article III(a). Therefore, the 180-day period set forth in Article III did not

apply. See 

id.

      Similarly, although the Commonwealth lodged a detainer against

Appellant after he was arrested in New York, there is no indication that the

Commonwealth made a separate request seeking temporary custody of

Appellant under Article IV of the IAD. As such, the 120-day requirement set

forth in Article IV did not apply. See Davis, 

786 A.2d at 175

; see also Leak,

22 A.3d at 1040

. Under these circumstances, Appellant is not entitled to relief.

                             Sentencing Claims

      Finally, Appellant challenges the legality of his mandatory-minimum

sentences under Section 9712(a).           Appellant’s Brief at 11.        Appellant

challenges the constitutionality of Section 9712(a) generally based on

Alleyne. 

Id.

 Appellant also argues that the mandatory-minimum sentences

were unconstitutional as applied to him. 

Id.

      As   noted   previously,   this   Court    held   that   Section   9712(a)   is

unconstitutional based on Alleyne. See Valentine, 

101 A.3d at 812

. It is




                                        - 16 -
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well settled that Alleyne does not apply retroactively on collateral review.

See Commonwealth v. Washington, 

142 A.3d 810

, 811 (Pa. 2016).

      However, our Supreme Court has held that “where a direct appeal nunc

pro tunc is granted, the conviction in question was never ‘final’ for purposes

of determining whether the litigant is entitled to the benefit of a new rule of

law announced subsequent to his conviction.” Commonwealth v. Ranger,

196 A.3d 237

, 239 (Pa. Super. 2018) (discussing Commonwealth v.

Johnson, 

304 A.2d 139

 (Pa. 1973); Commonwealth ex rel. Smith v.

Myers, 

438 Pa. 218

, 

261 A.2d 550

 (Pa. 1970)).             Therefore, a case is

“considered ‘pending on direct review’ for purposes of the application of [a]

new rule [when] the ‘direct review’ results from the reinstatement of direct

appellate rights, nunc pro tunc, subsequent to the date the new rule was

announced.” Ranger, 

196 A.3d at 239

.

      Here, the trial court concluded that Appellant was not entitled to relief

based on Alleyne because that decision does not apply retroactively on

collateral review.   However, based on our review of the record, we are

constrained to disagree with the trial court’s rationale. Because the trial court

reinstated Appellant’s direct appeal rights nunc pro tunc after Alleyne was

decided, Appellant is entitled to the benefit of that decision. See Ranger,

196 A.3d at 239

.      Therefore, to the extent Appellant was sentenced to

mandatory terms of imprisonment for his robbery convictions under Section

9712, those sentences are illegal. Under these circumstances, we must vacate

the entire judgment of sentence and remand the matter for resentencing. See

                                     - 17 -
J-S54006-20



Commonwealth v. Motley, 

177 A.3d 960

, 963 (Pa. 2018) (stating that, if

vacating part of an appellant’s sentence upsets the trial court’s overall

sentencing scheme, we must vacate the entire judgment of sentence and

remand for resentencing).

      Accordingly, we affirm Appellant’s convictions and remand the matter

for resentencing.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2021




                                    - 18 -

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