Commonwealth v. SpennyCommonwealth v. Spenny
OPINION BY
Brian Keith Spenny (“Spenny”) appeals from the October 15, 2014 judgment of sentence entered by the Erie County Court of Common Pleas. On appeal,
On September' 8, 2014, Spenny pled guilty to two counts of conspiracy to commit robbery of a financial institution.
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Supplemental'PSI at 3-5.
Based upon Spenny’s prior convictions, the trial court found that Spenny fell under the repeat felony one and felony two offender (“RFEL”) category, and sentenced him on October 15, 2014 to two consecutive terms of forty-five to ninety months of incarceration, which were to run consecutive to sentences Spenny was facing for parole violations in New York. Counsel, on behalf of Spenny, filed a timely motion to reconsider his sentence on
On October 28, 2014, Probation issued a memo to the trial court indicating that Spenny’s Ontario County grand larceny convictions originally scored as second-degree felonies (“F2s”) for Pennsylvania equivalency purposes should have been scored as third-degree felonies (“F3s”). See Probation Memo, 10/23/14. It further' stated that after reviewing additional documentation regarding Spenny’s federal and New York robberies, it confirmed that these were robberies of financial institutions, and as such, each of these robberies were properly graded as F2s for Spenny’s prior record score. Id. Appended thereto were certified copies of Spenny’s Ontario County and Seneca County convictions, as well as the pre-plea investigation reports associated with those convictions, which indicated that Spenny’s burglary and grand larceny convictions stemmed from multiple bank robberies he perpetrated in those two New York counties. The Seneca County report also included historical information regarding Spenny’s Arizona convictions, revealing that he committed armed robberies of a Mobil Gas Station store, a Yogurt Express and an individual, and pled guilty to two counts of armed robbery. Probation also appended to its memo an order granting a petition filed by the United States Probation Department to modify the terms of Spenny’s release from federal incarceration, which outlined Spenny’s federal sentence, as well as the indictment, trial waiver and sentencing papers from Arizona.
On October 29, 2014, believing that counsel had abandoned him, Spenny filed a pro se notice of appeal, which the trial court’s prothonotary docketed and sent to counsel pursuant to Pa.R.Crim.P, 576(A)(4). The trial court denied Spenny’s post-sentence motion on November 4, 2014, concluding that although there were modifications made in the supplemental PSI, Spenny was not entitled to be resen-tenced as “the original guideline computation for the mitigated, standard and aggravated ranges remains unchanged.” Trial Court Order, 11/4/14, at 1 n. 1.
Counsel for Spenny subsequently filed a timely notice of appeal and complied with the trial court’s order for the filing of a 1925(b) statement. The trial court issued a responsive 1925(a) opinion on January 2, 2015. Counsel for Spenny initially filed in this Court an Anders
The case is now once again before us for review, with Spenny raising the following issues for our consideration:
[1.] Did the lower court commit reversible error in that its sentence was manifestly extreme and clearly unreasonable, particularly in its consecutiveness, and not individualized as required by law?
[2.] Did the lower court abuse its discretion when it considered information that was on the presentence report that [Spenny] asserts was, incorrect in that (1) many of the prior offenses had been run concurrently to each other and (2) the out[-]of[-]state offenses listed on the presentence report were graded higher than they should have been?
Spenny’s Brief at 1-2.
The first issue Spenny raises on appeal, and the argument in support thereof, is identical to the issue counsel included in the originally filed Anders brief. Compare Spenny’s Brief at 4-6 with Anders Brief at 4-6. As stated above, in our first memorandum decision in this case we agreed with counsel that this issue was frivolous. Commonwealth v. Spenny, 1974 WDA 2014, 8,
Spenny’s second issue on appeal assails the trial court’s calculation of his prior record score and its classification of Spenny as a RFEL. Spenny’s Brief at 6-11. This presents a challenge to the discretionary aspects of his sentence. See Commonwealth v. O’Bidos,
Spenny preserved the issues he now seeks to raise on appeal in his post-sentence motion, timely filed his notice of appeal, and included a Rule 2119(f) statement in his brief on appeal. However, just as in counsel’s Anders brief, counsel for Spenny again failed to include this argu-mént in the Rule 2119(f) statement. As in the Anders brief, the Rule 2119(f) statement states only that the trial court “did not individualize the sentence for Mr. Spenny.” Compare Anders Brief at 4 with Spenny’s Brief at 4. Fortunately for Spen-ny, the Commonwealth does not raise an objection to Spenny’s failure in this regard. See Commonwealth v. Archer,
A higher prior record score yields a higher guideline sentence, up to a maximum of five. points.
If a defendant was sentenced for a single conviction at a prior judicial proceeding, that conviction is counted in the calculation of a defendant’s prior record score.
A prior conviction from another state court, federal court, or foreign jurisdiction “is scored as a conviction for the current equivalent Pennsylvania offense.”
In its original 1925(a) opinion, the trial court relied upon its reasoning provided in its order denying Spenny’s post-sentence motion on this issue, wherein it stated:
Upon review of [Spenny]’s motion, this [cjourt undertook further review with [Probation] concerning the guideline computations in this case.... After that review, it was discovered that some corrections/modifications had to be made, but‘they do not work to [Spen-ny]’s benefit. Í will now explain.
[Spenny] has six prior robbery convictions, five that occurred in the state of New York involving financial institutions which have been properly classified as felonies of the second degree for our purposes. In addition, he has a 1986 Arizona conviction for armed[ job-bery of a service station which should have been scored as a felony of the first degree, but-was scored as a felony of the second degree. Accordingly, he received a benefit to which he was not entitled at the time that the original[PSI] was prepared. Continuing, [Spenny] has a prior 2000 New York conviction for grand larceny that was originally scored as a felony of the sec-' ond degree, but should have been scored as ‘ a felony of the third degree. The upshot of this is that [Spenny] has six prior convictions which are properly scored as felonies of the second, degree. This places him in the RFEL category []. Therefore, the original computation for the mitigated, standard and aggravated ranges remains unchanged. It follows, then, that [Spenny] is not entitled to rélief.
The supplemental‘[PSI] deviates from the original [PSI] only in these respects: (1) the numerical calculation (but not the result) of the prior reeord score; and (2) the reference concerning the grand larceny conviction found at the bottom of page [five] of the [PSI]. Although the grand larceny sentence was imposed concurrently to another sentence, it was done so at a separate sentencing proceeding. Therefore, it was properly counted separately.
Trial Court Order, 11/4/14, at 1-2 nn. 1-2 (footnote numbers omitted). In its supplemental opinion, the trial court states that “[o]nly six [F2s] and two [F3s] were calculated to obtain a prior record score of [twelve], twice the number necessary to qualify ás a [RFEL].” Trial Court Opinion, 7/22/15, at 1 (emphasis in the original).
It is unclear from either of the trial court’s opinions , precisely which out-of-state convictions it considered when calculating Spenny’s prior record score. Regardless of what convictions it considered, the trial court’s supplemental explanation that it considered “six [F2s] and two [F3s]” in categorizing Spenny as a RFEL is clearly erroneous, as only FIs and F2s count towards a RFEL designation. See
We further find error in the reasoning provided by the trial court its original opinion. Our review of the record reveals that “at the bottom of page [five] of the [PSI],” Spenny has two convictions for grand larceny in the third degree
The record likewise does not support the trial court’s original conclusion that five of Spenny’s prior convictions from New York counted toward his. classification as a RFEL. See Trial Court Order, 11/4/14, at 1 n. 1. As Spenny accurately states, -'only four of his New York convictions could even arguably have counted towards his designation as a- RFEL. See Spenny’s Brief at 10. The supplemental PSI states that Spenny was sentenced at a .single judicial proceeding for six convictions in Monroe County, New York — three for rob- ■ bery in the third degree
Spenny was convicted of robbery in the third degree and escape after felony arrest
Lastly, Spenny was sentenced on five convictions in Ontario County, New York at a single judicial proceeding. His charges included two counts of robbery in the third degree, both scored as F2s, two counts of grand larceny in the third degree, scored as F3s, and one count of attempted robbery in the third degree, graded as an F2. Supplemental PSI at 5. He received consecutive sentences for the two F2 robbery convictions and the F3 grand larceny conviction, and concurrent sentences for his remaining convictions. Id. Therefore, for purposes of classifying Spenny as a RFEL, only the two Ontario County robbery convictions, if properly graded, would count, bringing the total F2 New York convictions that could even arguably have been included in designating Spenny as a RFEL to four.
The question remains whether the trial court properly classified Spenny’s prior New York robbery convictions as F2s, or if, as Spenny claims, the trial court should have graded - these offenses as F3s. See Spenny’s Brief at 10-11. All of Spenny’s New York robbery convictions were for robbery in the third degree, which New York law defines as follows: “A person is guilty of robbery in the third degree when he forcibly steals property. Robbery in the third degree is a class D felony.”
The trial court does not provide any indication of what it found to be the Pennsylvania equivalent statute for whatever convictions it considered when classifying Spenny as a RFEL. The Commonwealth suggests that the trial court found that the Pennsylvania equivalent statute to Spen-ny’s Seneca County and Ontario County robbery convictions
A person is guilty of robbery if, in the course of committing a theft, he ... takes or removes the money of a financial institution without the permission of the financial institution by making a demand of an employee of the financial institution orally or in writing with the intent to deprive the financial institution thereof.
See Commonwealth’s Brief at 3. The Commonwealth contends that ■
The documentation contained in the record detailing the factual bases underlying Spenny’s Ontario County and Seneca County third-degree robbery convictions leaves no question that the robberies were of financial institutions. See Pre-Plea Investigation to Ontario County Court, 11/16/99, at 1-3; Pre-Plea Investigation to Seneca County Court, 11/22/99, at 2-4. On the other hand, even a cursory review of New York’s third-degree robbery statute leads to the inescapable conclusion that a strict-elements approach would preclude a finding that Pennsylvania’s robbery of a financial institution,
In Commonwealth v. Bolden, this Court first addressed the question of the proper procedure for grading a prior, out-of-state conviction for prior record score purposes.
Guided by the Statutory Construction Act9 and the Sentencing Commission’s goal when enacting the Sentencing Guidelines “of promoting uniformity and fairness in sentencing,” the Bolden Court established a test to determine the Pennsylvania statute that is equivalent to an out-of-state conviction appearing on a defendant’s criminal record:
In assessing the quality of a prior conviction in a foreign jurisdiction, we discern from the purpose and language of the guidelines that it was the intent of ■ the Sentencing Commission as well as the legislature that , offense equivalency be considered in terms of the nature and definition of the offense in light of the record of the foreign conviction. This approach requires a sentencing court to carefully review the elements of the foreign offense in terms of the classification of the conduct proscribed, its definition of the offense, and the requirements for culpability. Accordingly, the court maywant to discern whether- the crime is malum in se-or malum prohibitum, or whether the crime is inchoate or specific. If it is a specific crime,- the court may look to the subject matter sought to be protected by the statute, e.g. protection of the person or protection of property. It will also be necessary to examine the definition of the conduct or activity proscribed. In doing so, the court should identify the requisite elements of the crime — the actus reus and mens rea— which form the basis of liability.
Having identified these elements of the foreign offense, the court should next turn its attention to the Pennsylvania Crimes Code for the purpose of determining the equivalent Pennsylvania offense. An equivalent offense is that which is substantially identical in nature and definition as the out-of-state or federal offense when compared with Pennsylvania offense. The record of the foreign conviction will. be relevant also when it is necessary to grade the offense under Pennsylvania law or when there are aggravating circumstances.
Id. at 1175-76 (footnotes and italicization omitted).
The Bolden Court undertook a comparison of the definition of the criminal statutes associated with Bolden’s Colorado conviction, criminal attempt (
Both the Colorado and Pennsylvania criminal attempt statutes share identical elements as to the actus reus — ra substantial step toward the-commission of the underlying crime — as well as to the mens rea — specific intent to commit the underlying offense. Additionally, we are satisfied that the underlying specific offense of burglary is. equivalent in Colorado, and Pennsylvania. Both statutes require an entry into or occupation of a building or occupied structure with the specific intent to commit a crime therein. Once again, there is identity of both nature and definition and therefore offense equivalency. Since- the fundamental inquiry is to the elements of the offense, it is irrelevant that Pennsylvania has but one grade for burglary.
Bolden,
■ In the years that followed, our Supreme Court adopted the Bolden test for determining the Pennsylvania equivalent offense for prior, out-of-state convictions in other areas of the law.
It logically follows that although both Pennsylvania’s DUI offense and New York State’s DWAI offense are designed to protect the person and prohibit drunk driving, New York State’s DWAI offense protects the public -from a broader range of reckless behavior than does Pennsylvania’s DUI offense. This is due to the fact that New York State’s DWAI offense casts a wider net of criminal liability, making it criminal for individuals to drink to the point of. any . impairment and then proceed to operate a motor vehicle, while Pennsylvania’s DUI offense only makes it criminal for individuals to drink to the point of substantial impairment and then proceed to operate a motor vehicle. Thus, there is an appreciable difference in the elements of the in-state and out-of-state, offenses at issue, and a corresponding difference in the conduct prohibited by the offenses which preclude a finding that the offenses are “equivalents”.
Id. at 744-45 (footnote omitted; emphasis in the original). On that basis alone, without examining the facts attendant , to the defendant’s prior conviction, the Supreme Court held “that
Our Supreme Court also adopted the Bolden test in Commonwealth v. Northrip,
■ [T]he New York -statute and the Penn-' sylvania statute are not equivalent for purposes of applying Section 9714. At first glance,-, the laws appear to have -similar elements and-burdens of proof. Both -punish a person for intentionally setting a structure on fire and both define the word structure to include a. . place of business. However, the framework of the two. statutory schemes reflects striking differences in terms of the classification of the conduct proscribed and the subject matter sought to be protected. First, the New York statute describes a third-degree felony; the Pennsylvania provision describes a felony of the first-degree. Moreover, the New York law focuses plainly on- the protection of property. The Pennsylvania law decidedly does not. Significantly, the Pennsylvania subsection is titled “arson endangering persons” and a different, separate subsection is titled “arson endangering property.” 18 Pa.C.S. § 3301(c) . Pennsylvania punishes, as a second-degree felony, the deliberate starting of a fire with the intent to destroy or damage a building or structure adapted for carrying on business. Likewise significant is the fact that New York’s other arson statutes specifically address injury to persons and assign higher grades to those offenses. SeeN.Y. Penal Law §§ 150.15 (arson in the second-degree) and 150.20 (arson in the first-degree).
In light of the material differences between these two statutes, we conclude that the Superior Court was correct in determining that the New York offense was not equivalent to the Pennsylvania offense.
Id. at 741-42 (citation to Shaw and footnote omitted).
The Commonwealth argued that courts were required to consider the factual record underlying a defendant’s prior conviction, which, in that case, would have revealed that Northrip set fire to a business, rendering him culpable under
As used in this section, the term “crime of violence” means murder of the third degree, voluntary manslaughter, aggravated assault as defined in18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson as defined in18 Pa.C.S. § 3301(a) (relating to arson and related offenses), kidnapping, burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present, robbery as defined in18 Pa. C.S. § 3701(a)(1) ®, (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above, or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in another jurisdiction.
This very specific and deliberate method of defining crimes of violence inSection 9714 demonstrates the Legislature’s clear intent that with respect to all crimes except burglary, the focus is on the crime for which the defendant was convicted, not the factual scenario underlying that crime.Section 9714 both directs and limits the sentencing court’s inquiry. In keeping with thestatute’s mandate then, we must focus on the crime of arson and its elements, •not the facts underlying [the defendant]^ conviction.
Id.
Justice (now Chief Justice) Saylor joined the Northrip Majority, but also authored a concurring opinion, stating: .
I write. separately only to note the inherent limitations of a strict elemental equivalency analysis such as is reflected inSection 9714 of the Judicial Code,42 Pa.C.S. § 9714 , as I believe such limitations are highlighted by the circumstances of the present case. Examining the undisputed facts underlying [Nor-thripj’s New York arson conviction— that [Northrip] intentionally burned a building housing a business — it is apparent that [Northrip]’s conduct, if committed in Pennsylvania, would have supported a conviction under Pennsylvania’s “[a]rson endangering persons” statute. Indeed, given the substantial overlap between the New York and Pennsylvania statutes, it is certainly possible that the General Assembly did not contemplate that such conduct would elude the enhanced sentencing equation underSection 9714 .
On the other hand, various complexities attend the administration of an enhancement scheme accounting for specific factual elements, including: provision for the determination of particular facts in a system employing general verdicts; and the involvement of constitutional issues connected with sentencing enhancements, such as those arising under Apprendi v. New Jersey,530 U.S. 466 ,120 S.Ct. 2348 ,147 L.Ed.2d 435 (2000). In the face of such complexities, and. consistent with the application of judicial restraint in defining the scope of criminal liability, I continue to support the notion ' that “equivalent crimes” are to be evaluated at an elemental level, absent more specific direction from the Legislature. Accord Commonwealth v. Shaw,560 Pa. 296 ,744 A.2d 739 (2000). To the degree the General Assembly wishes to effectuate a change, -there are various models available, which may be studied in devising a clear ' and coherent statutory framework that is consistent with governing law.
Id. at 744-45 (Saylor, J., Concurring) (footnotes omitted).
Subsequent to the Northrip decision, the Legislature did act, but in the opposite manner Justice Saylor predicted. Instead of amending
It is a long-standing presumption that the Legislature is aware of the judiciary’s construction and interpretation of statutes. See, e.g.,City of Philadelphia v. Clement & Muller, Inc.,
[w]hen confronted with questions of statutory construction, the words of a statute are to be interpreted in light of antecedent case law.... The failure of the General Assembly- to change the law which’ has been interpreted by the courts creates a presumption that the interpretation was in accordance withthe. legislative intent; . otherwise the General Assembly would have changed the law in a subsequent amendment.
Fonner v. Shandon, Inc.,
We therefore conclude that when determining the Pennsylvania equivalent statute for a prior, out-of-state conviction for prior record score purposes, courts must identify the elements of the foreign conviction and on that basis alone, identify the Pennsylvania statute that “is substantially identical in nature and definition” to the out-of-state offense. Bolden,
This is not to say that the facts underlying the prior conviction are wholly irrelevant when determining the Pennsylvania equivalent statute. Once the court conducts an analysis of the elements of the foreign offense and finds the Pennsylvania offense that “is substantially identical in nature and definition” to the out-of-state statute,- Bolden,
Applying these principles to the case at bar, we agree with Spenny that the trial court improperly graded his New York convictions of third-degree robbery as F2s. The elements of New York’s third-degree
Rather, we agree with Spenny that the Pennsylvania equivalent statute to
The trial court abused its discretion by grading Spenny’s prior New York robbery convictions as F2s, as each of. the convictions should have been graded as F3s. Therefore, the trial court should not have considered any of Spenny’s prior New York conyictions in determining whether he qualified as a RFEL. See
This does not end our inquiry. While neither the trial court nor the Commonwealth provide any argument .to support a finding that the RFEL designation was proper in the absence of the New York convictions, the law is clear that we may affirm the trial court’s, decision on any proper basis. Commonwealth v. Boyles,
Beginning with Spenny’s federal convictions, the supplemental PSI reflects that Spenny was sentenced to concurrent terms of imprisonment for eleven counts of bank robbery at a single sentencing hearing. Supplemental PSI at 4. Therefore, only one- conviction of bank robbery is included in calculating Spenny’s PSI. See
(a) Whoever, by force and violence, or ■ by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any' other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—
Shall be fined under this title or imprisoned not more than twenty years, or both.
(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined under this title or imprisoned not more than ten years, or both; or
Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit .union, or any savings and loan association, shall be fined under this title or imprisoned not more than one year, or both.
(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value which has been taken or stolen from a bank, credit union, or savings and loan association in violation of subsection (b), knowing the same to be property which has been stolen shall be subject to the punishment provided in subsection (b) for the taker.
The trial court again provides no indication of which Pennsylvania statute it considered the equivalent to
Turning to Spenny’s Arizona convictions, the record reflects that he was sentenced to concurrent terms of imprisonment on charges of armed robbery and robbery at a single sentencing hearing. Supplemental PSI at 3. The most serious offense,
A. A person commits armed robbery if, in the course of committing robbery as defined in § 13-1902, such person or an accomplice:
1. Is armed with a deadly weapon or a simulated deadly weapon; or
2. Uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon.
B. Armed robbery is a class 2 felony.
The trial court states that Spenny’s Arizona conviction “should have been scored as [an FI],” but does not indicate how it arrived at that determination. In the absence of any guidance from the trial court as to what statute it utilized as the Pennsylvania equivalent, we again turn to the Commonwealth, which once again advocates for
We note, however, that Arizona’s section 13-1904 outlaws robberies committed with a deadly weapon. As our above-discussion makes clear, this is not the same conduct proscribed by section 3701(a)(l)(vi) — the elements are not the same, nor are the requirements for culpability. See Nor-thrip,
. Therefore, pursuant to the Sentencing Guideline Code, we look to the grade of the offense based on the maximum sentence permitted for armed robbery-in Arizona. 204 Pa.Code 303.8(d)(2), (f)(3). Arizona divides its felony offenses .into six classes, with a class one felony being the most serious and a class- six felony 'the least serious. See
According to section 13-1904,' “Armed robbery is a class 2 felony.”
The Arizona sentencing provisions permitting sentencing above the “maximum” sentence are in contrast to established law in Pennsylvania. In Pennsylvania, a person convicted of a felony may be sentenced to a term of .imprisonment of no more than twenty years for an FI, ten years for an F2, and seven years for an F3.
It is clear that Arizona’s sentencing provisions are not consistent with Pennsylvania sentencing laws. We must therefore treat Spenny’s Arizona armed robbery conviction as an F3, which would exclude the conviction from consideration in classifying Spenny as a RFEL. 204 Pa.Code 303.8(d)(2), (f)(3). '
The trial court erred in determining Spenny’s prior record score and incorrectly classified him as a RFEL. We therefore vacate Spenny’s' judgment of sentence and remand for the recalculation of his prior record score, followed by resentencing. See Janda,
Judgment of sentence vacated. Case remanded with instructions. Jurisdiction relinquished,.
Notes
.
. As discussed infra, in response to Spenny’s post-sentence motion and additional information received regarding Spenny’s prior convictions, Probation amended Spenny’s PSI.
. Anders v. California,
.
.
.
. The Commonwealth concedes that the supplemental PSI improperly graded Spenny’s Monroe County robbery conviction as an F2, and should have been graded as an F3. Commonwealth’s Brief at 2. It provides no explanation as to how it reached this conclusion, but we presume that this is based on the absence of supporting documentation concerning the Monroe County robbery to permit confirmation that the robbery was of a financial institution.
. Bolden was decided under a prior version of the Sentencing Guideline Code. However, the relevant language requiring that a prior conviction from another jurisdiction "is scored as a conviction for the current equivalent Pennsylvania offense” remains unchanged in the current, amended version. Compare
.
. This Court has also adopted the Bolden test for determining the Pennsylvania equivalent offense in other areas of the law. See, e.g., Commonwealth v. Barbaro,
. A plurality of our Supreme Court first adopted the Bolden test for determining the Pennsylvania equivalent of a prior, ■ out-of-
. This amendment coincided with the Legislature’s amendment of the burglary statute, which incorporated the previously required factual determination into the definition of burglary under section 3502(a)(2). See
. To decide otherwise would not only run contrary to the above-cited case law, but • could also implicate due' process concerns. In some cases, courts in this Commonwealth would be serving as factfinder on the prior offense, adding an element to the defendant's conviction that the defendant did not admit to in a plea or was not decided by a jury. Take, for example, a defendant who, based on the facts, committed in another jurisdiction what would be aggravated assault in Pennsylvania, but was convicted in the other state only of what would be simple assault in Pennsylvania (either by a jury or through a plea' agreement).- For a Pennsylvania court to grade the prior conviction as an aggravated assault (a felony in Pennsylvania, see
. Section 2113(c), for example, criminalizes receiving, possessing, concealing, storing, bartering, selling or disposing of money or property that the defendant knew was stolen from a bank or financial institution, which would not constitute the act of taking or removing money from a financial institution required by Pennsylvania’s section 3701(a)(l)(vi). Rather, section 2113(c) would be equivalent to Pennsylvania’s receiving stolen property statute,
. On appeal, Spenny challenged only the classification of his New York convictions as F2s and argued on that basis that the trial court abused its discretion by classifying him as a RFEL. See Spenny’s Brief at 9-11.
. As stated hereinabove, the documentation appended to Probation’s memo indicates that the robberies underlying Spenny’s Arizona convictions were of a Mobil Gas Station, a Yogurt Express and a person, not a financial institution. Further, the trial court in its decision denying Spenny's post-sentence motion refers to the Arizona conviction as an armed robbery "of a service station.” Trial Court Order, 11/4/14, at 1 n. 1.
. A conviction of robbery under either section 3701(a)(l)(i) or (ii) constitutes an FI and would add four points to a defendant’s prior record score.