Com. v. Ellison, S., 743 EDA 2016

Defendant Solomon M. Ellison was convicted by a jury of multiple sexual offenses including involuntary deviate sexual intercourse (IDSI) by forcible compulsion and related counts arising from an incident on December 9, 2013.
Victim testified the meeting was arranged online for money; defendant produced a knife/box cutter, forced oral sex, injured the victim, and fled; he was later apprehended and charged.
At sentencing the court imposed an aggregate term of 30–60 years plus 2 years probation, including a 25-year mandatory minimum under 42 Pa.C.S. § 9718.2 based on a prior qualifying conviction.
On appeal Ellison raised two claims: (1) that § 9718.2 is unconstitutional (Alleyne/notice arguments) and thus his mandatory minimum is illegal; and (2) the trial court erred by replacing a principal juror with an alternate after deliberations had begun.
The trial court had removed Juror 10 after she initially said her juvenile adjudication for a similar offense prevented her from considering the defendant’s prior conviction, despite later saying she could follow instructions; the court seated an alternate and ordered deliberations to start anew.

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Ellison)	Held
Whether mandatory minimum under 42 Pa.C.S. § 9718.2 is unconstitutional under Alleyne or requires pretrial notice	§ 9718.2 is valid because it is triggered by prior convictions (which are an established exception) and the statute expressly dispenses with pretrial notice	§ 9718.2 violates Alleyne because it contains a "proof at sentencing" clause and therefore increases punishment without a jury finding; also claims statute creates an aggravated new offense requiring pretrial notice	Court affirmed § 9718.2 application: prior-conviction exception controls; statute expressly removes pretrial notice requirement; Supreme Court precedent/orders foreclose notice claim
Whether trial court abused discretion by removing a principal juror during deliberations and substituting an alternate	Court argues removal was warranted after credibility assessment and the court took protective measures (colloquy; restarting deliberations) to rebut prejudice presumption	Removal was improper: court used a per se standard and ignored juror’s express assurances of impartiality; substitution after deliberations creates a presumption of prejudice	Court found no abuse of discretion: trial judge credited juror’s lack of candor in voir dire, properly assessed credibility, removed juror, empaneled alternate, and took steps that rebutted presumption of prejudice

Almendarez–Torres v. United States, 523 U.S. 224 (1998) (prior convictions may be treated as sentencing facts exempt from jury requirement)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact, other than a prior conviction, that increases penalty beyond statutory maximum must be found by a jury)
Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts that increase mandatory minimum must be submitted to jury and proven beyond reasonable doubt)
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (invalidated certain mandatory-minimum sentencing provisions under Alleyne)
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (held a mandatory-minimum statute unconstitutional under Alleyne)
Commonwealth v. Pander, 100 A.3d 626 (Pa. Super. 2014) (trial court’s assessment of juror credibility and impartiality reviewed for abuse of discretion)
Commonwealth v. Treiber, 874 A.2d 26 (Pa. 2005) (discharge of juror is within trial court’s sound discretion)
Commonwealth v. Saunders, 686 A.2d 25 (Pa. Super. 1996) (substitution of alternate after deliberations creates presumption of prejudice that can be rebutted by protective measures)
Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (discussion of Almendarez–Torres exception and Alleyne implications)
Commonwealth v. Hale, 85 A.3d 570 (Pa. Super. 2014) (noting prior-conviction exception remains under current law)