OPINION BY ALLEN, J.

Jose Valentine ("Appellant") appeals from the judgment of sentence imposed after a jury convicted him of robbery.1 We vacate Appellant's judgment of sentence and remand for resentencing.

The pertinent facts and procedural history are as follows: On November 4, 2012, at approximately 6:05 a.m., the victim, Renee Gibbs, was alone, waiting for her SEPTA bus, at the intersection of Ninth and Lloyd Streets in Chester City, when she was approached from behind by Appellant, who pointed a handgun at her and demanded money. Trial Court Opinion, 4/9/14, at 9-10. Appellant was wearing a mask that partially obscured his face, and dark clothing. Id. at 10. Appellant threatened to shoot Ms. Gibbs, who surrendered her purse and cellular phone. Id. Appellant then fled and Ms. Gibbs went to her mother's house nearby and called the police. Id. Police officers responded promptly and Ms. Gibbs provided them with a description of her assailant. Id. Within twenty minutes, Appellant was apprehended at the intersection of Ninth and Pennell Streets, on the same block where the robbery occurred. Id. at 11-12. Ms. Gibbs was brought to the location where Appellant was apprehended and identified him as her assailant. Id.

Appellant was arrested, and on April 10, 2013, the Commonwealth filed a criminal information charging Appellant with robbery, receiving stolen property, theft by unlawful taking, carrying a firearm without a license, possession of an instrument of crime, possession of a prohibited offensive weapon, and possession of a firearm by a minor. On July 30, 2013, the Commonwealth orally moved to amend the criminal information. N.T., 7/30/13, at 4. Appellant did not object and the trial court granted the Commonwealth's application to amend the criminal information to include the allegation that Appellant visibly possessed a firearm, for purposes of the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712, and to specify that the offenses were committed in or near public transportation for purposes of the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9713.2

A jury trial commenced on July 30, 2013, at the conclusion of which the jury found Appellant guilty of robbery. Additionally the verdict slip presented to the jury the following questions, to which the jury returned a finding of "yes" as to both questions:

Verdict Slip, 7/31/13. Neither the Commonwealth nor Appellant objected to the verdict slip. See N.T., 7/31/13, at 3-4.

Following a sentencing hearing on October 3, 2013, the trial court determined that the mandatory minimum sentencing provisions of 42 Pa.C.S.A. §§ 9712 and 9713 were applicable to Appellant, and sentenced him to a term of imprisonment of five (5) to ten (10) years for robbery. Appellant filed a pro se motion for reconsideration on October 10, 2013. In response, the trial court convened a hearing on October 16, 2013, at which time Appellant's counsel moved to withdraw the post-sentence motion. The trial court granted counsel's application to withdraw the motion, and on October 16, 2013 entered an order memorializing the withdrawal of the post-sentence motion pursuant to Pa. R.Crim.P. 720(A)(2)(c). See Commonwealth v. Claffey, 80 A.3d 780, 783 (Pa.Super.2013) ("When post-sentence motions are withdrawn and the trial court enters an order memorializing the withdrawal, any direct appeal must be filed within thirty days of the order."); Pa.R.Crim.P. 720(A)(2)(c). Appellant filed a notice of appeal on November 14, 2013. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents two issues for our review:

Appellant's Brief at 5.

In his first issue, Appellant asserts that the evidence was insufficient to support his robbery conviction. Appellant's Brief at 13-18. Our standard of review with regard to a sufficiency challenge is as follows:

Commonwealth v. Devine, 26 A.3d 1139, 1145 (Pa.Super.2011).

Appellant argues that the evidence was insufficient to support his robbery conviction because he was not identified as Ms. Gibbs' assailant beyond a reasonable doubt. See Appellant's Brief at 14-17. In determining whether a particular identification was reliable, the court "should consider the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [his or her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. The opportunity of the witness to view the actor at the time of the crime is the key factor in the totality of the circumstances analysis." Commonwealth v. Bruce, 717 A.2d 1033, 1037 (Pa.Super.1998) (citations omitted).

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super.2011).

Here, Ms. Gibbs testified that during the commission of the crime, she was able to see her assailant's clothing, as well as the unconcealed portions of his face and eyes. N.T., 7/31/13, at 10-11. Moreover, only a short interval of time elapsed between the robbery and Ms. Gibbs' positive and unequivocal identification of Appellant as wearing the identical clothes her assailant had been wearing, and having the same build and ethnicity. Id. at 20-21. Additionally, Ms. Gibbs identified Appellant at the preliminary hearing and at trial as her assailant. Id. at 22. Furthermore, Ms. Gibbs' purse was found in the dumpster located at the apartment complex where Appellant resided, which was a short distance from where the robbery occurred. Id. at 49-52. Ms. Gibbs also provided testimony that Appellant had attempted to contact her through Facebook prior to the robbery. Id. at 24-25. Based on the foregoing, we agree with the trial court that the evidence was sufficient to establish Appellant's identity beyond a reasonable doubt. See Orr, supra (finding evidence sufficient to support appellants' conviction after review of the entire record and all the circumstantial evidence presented in the light most favorable to the Commonwealth as verdict winner, where the victim identified appellant immediately following the robbery based only on the clothing he was wearing and a similar red beard, and despite the victim being unable to positively identify appellant in a line-up, or in post-incident court proceedings; any subsequent indefiniteness and uncertainty in the identification testimony went to its weight which was properly for the jury to assess and which this Court declined to disturb on appeal).

Appellant additionally argues that the evidence was insufficient to sustain his robbery conviction because "the Commonwealth failed to prove that [Appellant] threatened another person or intentionally put another person in fear of immediate serious bodily injury in the course of committing a theft." Appellant's Brief at 13. Appellant is correct that to sustain his conviction for robbery (serious bodily injury), the Commonwealth was required to prove that in the course of committing a theft, Appellant "threaten[ed] another with or intentionally put ... [her] in fear of immediate serious bodily injury." 18 Pa. C.S.A. § 3701(a)(1)(ii). "The evidence is sufficient to convict a defendant of robbery under this section if the evidence demonstrates aggressive actions that threatened the victim's safety. The court must focus on the nature of the threat posed by an assailant and whether he reasonably placed a victim in fear of immediate serious bodily injury. Additionally, this Court has held that the threat need not be verbal." Commonwealth v. Jannett, 58 A.3d 818, 822 (Pa.Super.2012) (citations and internal quotations omitted). "Serious bodily injury" is defined as "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S.A. § 2301. "When determining whether a victim has been placed in fear of serious bodily injury, this Court uses an objective standard; therefore, [the victim's] subjective state of mind during the robbery is not dispositive." Commonwealth v. Kubis, 978 A.2d 391, 398 (Pa.Super.2009) (concluding that the nature of appellant's threat to stab the victim was such that a reasonable person in the victim's position would fear for his life or safety even though no knife was physically produced during robbery).

Again, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, we agree with the trial court that the evidence was sufficient to establish that Appellant placed Ms. Gibbs in fear of serious bodily injury. The trial court explained:

Trial Court Opinion, 4/9/14, at 19 (citations to notes of testimony omitted).

We agree with the trial court that Appellant's actions in pointing a gun at Ms. Gibbs and threatening to shoot her would have placed a reasonable person in fear of serious bodily injury, and that the evidence was sufficient to sustain Appellant's robbery conviction. In fact, Ms. Gibbs explicitly testified, "I was afraid. I was shocked. I was nervous. I couldn't believe what was going on.... [H]e had a gun in my face. I didn't know if I say the wrong thing would he get mad, would he shoot me ... I didn't know what he was going to do. I didn't know what the outcome of this was ... I was just afraid." N.T., 7/31/13, at 15. Appellant's claim that the evidence was insufficient to prove that he threatened Ms. Gibbs with or intentionally put her in fear of immediate serious bodily injury is without merit.

In his second issue, Appellant argues that his sentence was illegal because the mandatory minimum sentencing provisions employed by the trial court were unconstitutional. Appellant's claim addresses the alleged illegality of imposing a mandatory minimum sentence pursuant to 42 Pa.C.S. §§ 9712 and 9713.

42 Pa.C.S.A. § 9712 provides:

42 Pa.C.S.A. § 9713 provides:

At the time Appellant was sentenced, pursuant to the mandatory sentencing provisions of § 9712, the Commonwealth was required to demonstrate to the trial court by a preponderance of the evidence that Appellant visibly possessed a gun and that the victim was placed in reasonable fear of death or serious bodily injury. For purposes of the mandatory sentencing provisions of § 9713, the Commonwealth was required to prove to the trial court by a preponderance of the evidence that the crime occurred in or near public transportation.

As noted above, however, the United States Supreme Court in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), held that any facts leading to an increase in a mandatory minimum sentence are elements of the crime and must be presented to a jury and proven beyond a reasonable doubt. In reliance on Alleyne, Appellant argues that the application of his mandatory minimum sentence was illegal. Although Appellant did not raise this claim before the trial court, this Court in Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super.2013) (en banc), addressing the Alleyne decision, observed that where "[a]pplication of a mandatory minimum sentence gives rise to illegal sentence concerns, even where the sentence is within the statutory limits[,] [such] [l]egality of sentence questions are not waivable." Because Appellant's claim falls within this "narrow class of cases ... considered to implicate illegal sentences," we address its merits. Watley, 81 A.3d at 118.3

In Watley, we explained that "[t]he Alleyne decision ... renders those Pennsylvania mandatory minimum sentencing statutes that do not pertain to prior convictions constitutionally infirm insofar as they permit a judge to automatically increase a defendant's sentence based on a preponderance of the evidence standard." Watley, 81 A.3d at 117 (holding that § 9712(c) and § 9713(c), inter alia, are unconstitutional). See also Commonwealth v. Hanson, ___ Pa. ___, 82 A.3d 1023, 1039-1040 (2013) (prior to Alleyne, state legislatures were free to delegate fact-finding authority to sentencing judges relative to mandatory minimum sentences; however, Alleyne overruled those decisions on this salient point).

Appellant argues that pursuant to Alleyne, sections 9712 and 9713 are unconstitutional in their entirety and his mandatory sentence is therefore illegal. Appellant's Brief at 18-22. Appellant recognizes that in his case the Commonwealth amended the criminal information and the trial court attempted to cure the unconstitutional provisions of § 9712 and § 9713 by having the jury (rather than the trial court) decide on the verdict slip whether Appellant possessed a firearm and whether the robbery occurred in or near public transportation, beyond a reasonable doubt. Id. at 22. However, Appellant contends that such actions did not remedy the fundamental unconstitutionality of the statutes. Rather, Appellant asserts that the unconstitutional provisions of §§ 9712(c) and 9713(c) (requiring sentencing factors to be determined by the trial court by a preponderance of the evidence) are unseverable, and that the statutes at issue are unconstitutional in their entirety. Moreover, Appellant maintains that by asking the jury to decide whether the factual elements of § 9712 and § 9713 had been met, the trial court effectively rewrote § 9712 and § 9713 to comply with Alleyne, which constituted a legislative function that the judicial branch is not authorized to perform. Id.

In consideration of Appellant's claim, we find instructive our recent decision in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.2014) (en banc). In Newman, we reviewed the constitutionality of 42 Pa. C.S.A. § 9712.1, which enhances the minimum sentence where a firearm is found on a drug dealer, an accomplice, or in the vicinity of the contraband. The statute at issue in Newman provided:

42 Pa.C.S.A. § 9712.1

We explained in Newman that under Alleyne, the factual predicates for imposition of the § 9712.1 mandatory minimum sentence (i.e., that the firearm was found on a drug dealer, an accomplice or in the vicinity of the contraband) "must be pleaded in the indictment, and must be found by the jury beyond a reasonable doubt before the defendant may be subjected to an increase in the minimum sentence." Newman at 98. Concluding that the factual predicates for imposition of the mandatory minimum sentence had not been presented to a jury, we vacated the judgment of sentence.

Notably in Newman, we declined the Commonwealth's proposed remedy that we remand for a sentencing jury to determine beyond a reasonable doubt whether the Commonwealth had proven the factual predicates for § 9712.1. We explained:

1 Pa.C.S.A. § 1925.

Newman at 101-02 (footnote omitted).

Here, the trial court permitted the jury, on the verdict slip, to determine beyond a reasonable doubt whether Appellant possessed a firearm that placed the victim in fear of immediate serious bodily injury in the course of committing a theft for purposes of the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712(a), and whether the crime occurred in whole or in part at or near public transportation, for purposes of the mandatory minimum sentencing provisions of 42 Pa. C.S.A. § 9713(a). The jury responded "yes" to both questions. In presenting those questions to the jury, however, we conclude, in accordance with Newman, that the trial court performed an impermissible legislative function by creating a new procedure in an effort to impose the mandatory minimum sentences in compliance with Alleyne.

The trial court erroneously presupposed that only Subsections (c) of both 9712 and 9713 (which permit a trial judge to enhance the sentence based on a preponderance of the evidence standard) were unconstitutional under Alleyne, and that Subsections (a) of 9712 and 9713 survived constitutional muster. By asking the jury to determine whether the factual prerequisites set forth in § 9712(a) and § 9713(a) had been met, the trial court effectively determined that the unconstitutional provisions of § 9712(c) and § 9713(c) were severable. Our decision in Newman however holds that the unconstitutional provisions of § 9712(c) and § 9713(c) are not severable but "essentially and inseparably connected" and that the statutes are therefore unconstitutional as a whole. Id. at 101-02. ("If Subsection (a) is the predicate arm ... then Subsection (c) is the enforcement arm. Without Subsection (c), there is no mechanism in place to determine whether the predicate of Subsection (a) has been met.").

Moreover, Newman makes clear that "it is manifestly the province of the General Assembly to determine what new procedures must be created in order to impose mandatory minimum sentences in Pennsylvania following Alleyne." Newman at 102. Therefore, the trial court lacked the authority to allow the jury to determine the factual predicates of §§ 9712 and 9713. See Newman at 102-03 (recognizing that several trial courts of this Commonwealth have found Section 9712.1 as a whole to be no longer workable without legislative guidance).

Because Alleyne and Newman render §§ 9712 and 9713 unconstitutional, we vacate the judgment of sentence and remand for the re-imposition of sentence without consideration of any mandatory minimum sentence as provided by §§ 9712 and 9713.4

Judgment of sentence vacated. Case remanded for re-imposition of sentence consistent with this Opinion. Jurisdiction relinquished.

Justice FITZGERALD joins the Opinion.

PJ GANTMAN files a Concurring Opinion in which Judge ALLEN and Justice FITZGERALD join.

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 minimums 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.