J-S61019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ROBERT WAYNE BROWN

                            Appellant               No. 1296 MDA 2014


            Appeal from the Judgment of Sentence of April 4, 2013
             In the Court of Common Pleas of Cumberland County
              Criminal Division at Nos.: CP-21-CR-0000029-2011
                                         CP-21-CR-0003516-2010


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                       FILED DECEMBER 08, 2015

       Robert Brown appeals the April 4, 2013 judgments of sentence.

Contemporaneous with this appeal, Brown’s counsel has filed with this court

a petition to withdraw as counsel and an Anders/Santiago brief.1         Our

review of the record reveals that the trial court sentenced Brown pursuant to

42 Pa.C.S. § 9718(a)(1), a mandatory minimum sentencing provision that

this Court has since declared unconstitutional.    See Commonwealth v.

Wolfe, 106 A.3d 800 (Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa.


____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
     See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
J-S61019-15



2015).2 Because we have identified a non-frivolous issue that entitles Brown

to a new sentencing hearing, we deny counsel’s petition to withdraw, vacate

Brown’s judgment of sentence, and remand for re-sentencing.

       Brown’s convictions arise from his sexual abuse of his grandchildren

and step grandchildren. On December 1, 2010, Brown was babysitting his

granddaughters, T.W. (age three) and K.W. (age four).               When T.W. and

K.W.’s mother, T.N., went to Brown’s home in Newville, Pennsylvania to pick

up the girls, she observed Brown with his pants unbuttoned and unzipped.

T.W. was standing between Brown’s legs with her pants undone, and K.W.

was facing the wall with her pants around her ankles.              T.N. immediately

removed the children from Brown’s home, and took them to Carlisle Regional

Medical Center.

       At the hospital, Joey Wisner, PA, examined the children and noticed

three “warty lesions” near K.W.’s upper lip.           Notes of Testimony (“N.T.”),

8/20/2012, at 173. Wisner took external mouth swabs from both children,

which Pennsylvania State Police Corporal Bryan Henneman took into

evidence along with K.W.’s pants.              Laboratory testing later revealed the

presence of seminal fluid on K.W.’s pants, and the swab from K.W.’s mouth

____________________________________________


2
      “This Court is bound by existing precedent under the doctrine of stare
decisis and continues to follow controlling precedent as long as the decision
has not been overturned by our Supreme Court.” Commonwealth v.
Slocum, 86 A.3d 272, 278 n.9 (Pa. Super. 2014) (citing Dixon v. GEICO, 1
A.3d 921, 925-26 (Pa. Super. 2010)).



                                           -2-
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contained spermatozoa.    However, due to the breakdown and mixing of

genetic material, the lab could not conclusively match those samples with

Brown’s DNA.

       On the same evening, Corporal Henneman went to Brown’s residence,

identified himself, and asked to speak with Brown. Corporal Henneman was

dressed in formal business attire.   Corporal Henneman told Brown that he

was not under arrest. Brown agreed to speak with Corporal Henneman, and

invited him inside the home.

       Corporal Henneman digitally recorded the audio of his ensuing

conversation with Brown. In that conversation, Brown admitted that K.W.

and T.W. had touched his penis on multiple occasions. He also stated that

both K.W. and T.W. had performed oral sex on him, and that he had

performed oral sex on K.W. on one occasion.            Brown told Corporal

Henneman that he had a wart-like growth on penis, but did not know what it

was.    At the conclusion of the interview, Corporal Henneman left Brown’s

home.

       On December 2, 2010, Corporal Henneman arrested Brown and

charged him with two counts each of involuntary deviate sexual intercourse

(“IDSI”), IDSI with a child less than thirteen years of age, unlawful contact

with a minor, sexual assault, indecent assault, indecent assault of a child




                                     -3-
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less than thirteen years of age, and corruption of minors.3 Those charges

were filed and docketed at CP-21-CR-3516-2010.

         On December 6, 2010, Brown’s step grandchildren, J.H. and M.H.,

after hearing about Brown’s arrest and the sexual abuse allegations against

him, reported to that police that Brown had sexually assaulted them as

well.4    On that same day, Corporal Henneman interviewed J.H. and M.H.

J.H. told Corporal Henneman that, on multiple occasions when he was

approximately ten to twelve years old, Brown performed oral sex on J.H.

Brown also forced J.H. to perform oral sex on him.      J.H. told Corporal

Henneman that Brown had inserted his fingers, various sex toys, and his

penis into J.H.’s anus.

         M.H. corroborated her brother’s allegations.   She told Corporal

Henneman that, on multiple occasions when she was approximately eight to

ten years old, Brown performed oral sex on her. Brown also forced M.H. to

perform oral sex on him. Brown penetrated M.H.’s vagina and anus with his

fingers and with various sex toys. M.H. also told Corporal Henneman that,

on one occasion, Brown inserted his penis into her anus. On December 9,

2010, Corporal Henneman filed a second criminal complaint, charging Brown


____________________________________________


3
     18 Pa.C.S. §§ 3123(a)(6), 3123(b), 6318, 3124.1, 3126(a)(1),
3126(a)(7), and 6301(a)(1), respectively.
4
         J.H. and M.H. are siblings.




                                           -4-
J-S61019-15



with rape of a child,5 IDSI, IDSI with a child less than thirteen years of age,

indecent assault, aggravated indecent assault,6 unlawful contact with a

minor, and corruption of minors. Those charges were filed and docketed at

CP-21-CR-29-2011.

       On March 8, 2011, the Commonwealth filed notices of its intent to

seek imposition of ten-year mandatory minimum sentences in the event that

Brown was convicted of rape of a child and/or IDSI.              See 42 Pa.C.S.

§ 9718(a)(1) (providing that a person convicted of IDSI or rape when the

victim is less than sixteen years of age shall be sentenced to a mandatory

ten-year term of imprisonment). The Commonwealth also filed notices of its

intent to seek imposition of a five-year mandatory minimum sentence in the

event that Brown was convicted of aggravated indecent assault of a child.

See id. (providing that a person convicted of aggravated indecent assault

when the victim is less than sixteen years of age shall be sentenced to a

mandatory five-year term of imprisonment).

       The Commonwealth consolidated Brown’s cases for trial, which

commenced on August 20, 2012. On the morning of his trial, Brown filed a

motion to suppress the inculpatory statements that he made to Corporal

Henneman on December 1, 2010.                    Therein, Brown argued that his


____________________________________________


5
       18 Pa.C.S. § 3121(c).
6
       18 Pa.C.S. § 3125.



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confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436

(1966), because Corporal Henneman did not advise Brown of his right to

remain silent or his right to have an attorney present during the interview.

Following a hearing immediately prior to jury selection, the trial court denied

Brown’s suppression motion.

      On August 22, 2012, the jury convicted Brown on all charges. On April

4, 2013, the trial court sentenced Brown to an aggregate term of forty to

one hundred and twenty years’ imprisonment.       Brown did not file a direct

appeal.

      On April 7, 2014, Brown filed a pro se petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. In his PCRA petition,

Brown alleged that his attorney failed to file a timely direct appeal. On July

22, 2014, following a hearing, the PCRA court granted Brown’s petition, and

reinstated Brown’s direct appellate rights.

      On July 31, 2014, Brown filed a notice of appeal. On August 7, 2014,

the trial court ordered Brown to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Brown timely

complied.   On January 7, 2015, the trial court filed a Pa.R.A.P. 1925(a)

opinion.

      Because counsel for Brown proceeds pursuant to Anders and

Santiago, this Court first must pass upon counsel’s petition to withdraw

before reviewing the merits of Brown’s issues.           Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).               Prior to

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withdrawing as counsel under Anders, counsel must file a brief that meets

the requirements established by our Supreme Court in Santiago. Pursuant

thereto, the brief must provide the following information:

      (1)   a summary of the procedural history and facts, with
            citations to the record;

      (2)   reference to anything in the record that counsel believes
            arguably supports the appeal;

      (3)   counsel’s conclusion that the appeal is frivolous; and

      (4)   counsel’s reasons for concluding that the appeal is
            frivolous. Counsel should articulate the relevant facts of
            record, controlling case law, and/or statutes on point that
            have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

      Counsel also must provide a copy of the Anders brief to his client.

Attending the brief must be a letter that advises the client of his rights to

“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;

or (3) raise any points that the appellant deems worthy of the court’s

attention in addition to the points raised by counsel in the Anders brief.”

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).

Finally, to facilitate our review of counsel’s satisfaction of his obligations, he

must attach to his petition to withdraw the letter that he transmitted to his

client. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super.

2005).

      Our review of counsel’s petition to withdraw and the accompanying

brief demonstrates that counsel has complied with Santiago’s technical


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requirements.    Counsel has provided a procedural history detailing the

events relevant to this appeal with appropriate citations to the record. See

Anders Brief for Brown at 3-6.       Ultimately, counsel has concluded that

Brown has no non-frivolous basis for challenging his convictions. Id. at 7.

Counsel also has sent Brown a letter informing him that she has identified no

meritorious issues to pursue on appeal, that he has filed an application to

withdraw from Brown’s representation, and that Brown may find new

counsel or proceed pro se.     Letter, 6/17/2015.   Counsel has attached the

letter to her petition to withdraw, as is required by Millisock.

      Accordingly, counsel has complied substantially with Santiago’s

technical requirements.   See Millisock, 873 A.2d at 751.          Having passed

upon the procedural requirements under Anders and Santiago, we now

must conduct an independent review of the record to determine whether this

appeal is, as counsel claims, wholly frivolous, or if any meritorious issues

remain. Santiago, 978 A.2d at 354-55.

      Counsel identifies four issues that arguably support this appeal.

      1. The court erred in denying [Brown’s] motion to suppress the
         statement made to troopers at his home on December 1,
         2010.

      2. The court erred in denying [Brown’s] motion to exclude
         reference or evidence of a wart on the upper lip of K.W.

      3. The court erred in denying [Brown’s] motion to exclude DNA
         evidence obtained from the pants of K.W.

      4. The evidence presented at trial was not sufficient to convict
         [Brown] of the above-captioned charges.



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Brown’s Concise Statement, 9/26/2014, at 2; see Anders Brief for Brown at

9-13.

        We begin with the first appealable issue identified by Anders counsel.

        Our standard of review of an order denying a motion to suppress
        evidence is limited to determining whether the findings of fact
        are supported by the record and whether the legal conclusions
        drawn from those facts are in error.          Commonwealth v.
        Crompton, 682 A.2d 286 (Pa. 1996); Commonwealth v.
        Chambers, 598 A.2d 539 (Pa. 1991).                In making this
        determination, this [C]ourt may only consider the evidence of
        the Commonwealth’s witnesses, and so much of the witnesses
        for the defendant, as fairly read in the context of the record as a
        whole, which remains uncontradicted. Id. If the evidence
        supports the findings of the trial court, we are bound by such
        findings and may reverse only if the legal conclusions drawn
        therefrom are erroneous. Id.

Commonwealth v. Ellis, 700 A.2d 948, 954 (Pa. Super. 1997) (citations

modified).

        It is a fundamental precept of constitutional law that a suspect subject

to a custodial interrogation by police must be warned that he has the right to

remain silent, that anything he says may be used against him in court, and

that he is entitled to the presence of an attorney.      Miranda, 384 U.S. at

469.     If an individual is not advised of those rights prior to a custodial

interrogation,    any   evidence    obtained   through   the   interrogation   is

inadmissible at trial. In re K.Q.M., 873 A.2d 752, 755 (Pa. Super. 2005).

The Miranda safeguards are triggered “whenever a person in custody is

subjected to either express questioning or its functional equivalent.” Rhode

Island v. Innis, 446 U.S. 291, 292 (1980).             Instantly, we focus our


                                       -9-
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discussion upon whether Brown was “in custody” for Miranda purposes at

the time of his statement, because there is no doubt that Corporal

Henneman’s questioning constituted an interrogation.     Innis, 446 U.S. at

292 (defining interrogation to include express questioning and its functional

equivalent).

      We have explained that an individual is in custody for Miranda

purposes when he “is physically denied . . . his freedom of action in any

significant way or is placed in a situation in which he reasonably believes

that his freedom of action or movement is restricted by the interrogation.”

K.Q.M., 873 A.2d. at 755 (citing Commonwealth v. Williams, 650 A.2d

420, 427 (Pa. Super. 1994)). “[T]he police officer’s subjective intent does

not govern the [custody] determination,” instead we look to “the reasonable

belief of the individual being interrogated.” Commonwealth v. Zogby, 689

A.2d 280, 282 (Pa. Super. 1997).      In order to ascertain the defendant’s

reasonable belief, the reviewing court must consider the totality of

circumstances, including factors such as “the basis for the detention; the

duration; the location; whether the suspect was transferred against his will,

how far, and why; whether restraints were used; the show, threat, or use of

force; and the methods of investigation used to confirm or dispel

suspicions.”   Commonwealth v. Busch, 713 A.2d 97, 101 (Pa. Super.

1998).

      Here, the record amply supports the trial court’s finding that Brown

was not in custody for Miranda purposes.         The interview occurred in

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Brown’s own home. Corporal Henneman did not show, use, or threaten to

use force. He did not transfer Brown against his will. He did not restrain

Brown.     He was dressed in business attire rather than a police uniform.

Finally, Corporal Henneman unambiguously told Brown that he was not

under arrest. In light of these factors, we agree with counsel that this issue

is frivolous.

       Counsel’s second and third issues relate to the trial court’s evidentiary

rulings. The admission of evidence is committed to the sound discretion of

the trial court, and will be reversed only upon a showing that the trial court

clearly abused its discretion. Commonwealth v. Northrip, 945 A.2d 198,

203 (Pa. Super. 2008).

       At trial, Brown objected to the introduction of testimony regarding a

warty lesion on K.W.’s face. Wisner, a licensed physician assistant, testified

that K.W. might have contracted the virus that causes this type of wart via

skin-to-skin contact with Brown. Nevertheless, Wisner could not state with

any certainty how K.W. acquired the virus.          According to Brown, this

evidence was irrelevant.

       Evidence is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Pa.R.E.

401.     The trial court did not abuse its discretion in overruling Brown’s

relevancy objection. The fact that a four year old had a wart on her upper

lip that is transmitted by skin-to-skin contact undoubtedly has some

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tendency to increase the probability that Brown forced K.W. to perform oral

sex on him. This is especially true because Brown told Corporal Henneman

that he had a similar wart-like growth on his penis. See N.T. Exh. 27 at 13.

Accordingly, this issue is frivolous.

      Counsel’s third issue concerns the trial court’s denial of Brown’s motion

in limine, wherein Brown sought to exclude DNA evidence discovered on

K.W.’s pants.    Laboratory analysis could not conclusively match the DNA

taken from K.W.’s pants with Brown’s DNA, nor could it exclude Brown as a

potential match.    In his motion, Brown argued that the laboratory report

“offer[ed] no probative value.”     Id. at 121.   Alternatively, he argued that

any “probative value [was] outweighed by the [report’s] prejudicial effect.”

Id.

      Otherwise relevant evidence may be excluded if its probative value is

outweighed by its potential for unfair prejudice. Pa.R.E. 403. The comment

to Pa.R.E. 403 instructs that “‘Unfair prejudice’ means a tendency to suggest

decision on an improper basis or to divert the jury’s attention away from its

duty of weighing the evidence impartially.”       Pa.R.E. 403 cmt.   However,

“[e]vidence will not be prohibited merely because it is harmful to the

defendant.”     Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007)

“[E]xclusion is limited to evidence so prejudicial that it would inflame the

jury to make a decision based upon something other than the legal

propositions relevant to the case.”      Commonwealth v. Owens, 929 A.2d




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1187, 1191 (Pa. Super. 2007) (citing Commonwealth v. Broaster, 863

A.2d 588, 592 (Pa. Super. 2004)).

      Instantly, the fact that Brown’s DNA profile could not be matched, nor

excluded as a match, to the DNA found on K.W.’s pants, did not unfairly

prejudice Brown.   Nor was it so inflammatory that it diverted the jury’s

attention away from its duty of weighing the evidence impartially.       See

Pa.R.E. 403 cmt.   As the trial court noted, the exclusion of this evidence

would have caused Brown more prejudice than its admission did. Trial Court

Opinion, 1/7/2015, at 11. To allow the jury to hear that seminal fluid and

spermatozoa were found on a four-year-old child—without also explaining

that the laboratory could not conclusively match that evidence with Brown’s

DNA profile—likely would have been prejudicial to the defense.     We agree

with counsel that the trial court did not abuse its discretion in denying

Brown’s motion in limine.

      We now turn to the final issue identified by Anders counsel. Because

Brown has waived his challenge to the sufficiency of the evidence, this issue

is frivolous.

      Rule 1925 is a crucial component of the appellate process, and “is

intended to aid trial judges in identifying and focusing upon those issues

which the parties plan to raise on appeal.” Commonwealth v. Lord, 719

A.2d 306, 308 (Pa. 1998). “When an appellant fails adequately to identify in

a concise manner the issues sought to be pursued on appeal, the trial court

is impeded in its preparation of a legal analysis which is pertinent to those

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issues.” In re Estate of Daubert, 757 A.2d 962, 963 (Pa. Super. 2000).

“In other words, a Concise Statement which is too vague to allow the court

to identify the issues raised on appeal is the functional equivalent of no

Concise Statement at all.”      Commonwealth v. Dowling, 778 A.2d 683,

686 (Pa. Super. 2001).

      “In order to preserve a challenge to the sufficiency of the evidence on

appeal, an appellant’s Rule 1925(b) statement must state with specificity the

element or elements upon which the appellant alleges that the evidence was

insufficient.”   Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.

2013) (citing Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.

2009)). “Such specificity is of particular importance in cases where, as here,

the appellant was convicted of multiple crimes each of which contains

numerous     elements    that   the   Commonwealth   must   prove   beyond   a

reasonable doubt.” Gibbs, 981 A.2d at 281.

      In his Rule 1925(b) statement, Brown asserted only that “[t]he

evidence presented at trial was not sufficient to convict [Brown] of the

above-captioned charges.”       Brown’s Concise Statement, 9/26/2014, at 2.

Brown did not specify which element or elements of the relevant crimes, or

even which crimes, the Commonwealth failed to prove beyond a reasonable

doubt.    This assertion is far too vague to warrant meaningful appellate

review. See Garland, supra. Thus, Brown’s challenge to the sufficiency of

the evidence is frivolous.




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       Brown has filed a pro se response to counsel’s Anders Brief. Therein,

Brown argues that counsel was ineffective for failing initially to file a direct

appeal. Of course, the PCRA court already granted Brown relief on this basis

when it reinstated his direct appeal rights. To the extent that Brown now

asserts a novel ineffectiveness claim, his argument is premature.                   See

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (“[C]laims of

ineffective assistance of counsel are to be deferred to PCRA review; . . . such

claims should not be reviewed upon direct appeal.”).

       Although we agree with counsel’s characterization and analysis of the

issues that she has identified in her Anders brief, our own independent

review of the record has revealed a clearly meritorious issue. The trial court

sentenced Brown pursuant to 42 Pa.C.S. § 9718(a)(1), a mandatory

minimum      sentencing      provision    that     this   Court   has   since   declared

unconstitutional. See Wolfe, 106 A.3d 800. Accordingly, Brown is entitled

to a new sentencing hearing.7

       Preliminarily, we note that a challenge to the legality of a sentence is

non-waivable and may be raised by this Court sua sponte. Commonwealth

____________________________________________


7
       Because this issue involves a question of law, and because the record
before us is complete for our review, we find it unnecessary to remand for
the filing of an advocate’s brief. See Commonwealth v. Hankerson, 118
A.3d 415 (Pa. Super. 2015) (remanding Anders appeal for resentencing
without first requiring an advocate’s brief where the trial court imposed an
illegal sentence); Commonwealth v. Mitchell, 986 A.2d 1241 (Pa. Super.
2009) (same).



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v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014) (citation omitted). We

further note that issues pertaining to the United States Supreme Court’s

decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013),

directly implicate the legality of a sentence. Commonwealth v. Lawrence,

99 A.3d 116, 122-25 (Pa. Super. 2014).       With this in mind, we begin by

reciting our well-settled standard of review for such questions.

      A challenge to the legality of a sentence . . . may be entertained
      as long as the reviewing court has jurisdiction. Commonwealth
      v. Borovichka, 18 A.3d 1242, 1254 (Pa. Super. 2011) (citation
      omitted).    It is also well-established that “[i]f no statutory
      authorization exists for a particular sentence, that sentence is
      illegal and subject to correction.” Commonwealth v. Rivera,
      95 A.3d 913, 915 (Pa. Super. 2014) (citation omitted). “An
      illegal sentence must be vacated.” Id. “Issues relating to the
      legality of a sentence are questions of law[.] . . . Our standard
      of review over such questions is de novo and our scope of review
      is plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.
      Super. 2014) (citations omitted).

Wolfe, 106 A.3d at 801-02.

      Instantly, Brown was sentenced pursuant to 42 Pa.C.S. § 9718(a)(1),

which provides as follows:

      (a) Mandatory sentence.—

         (1) A person convicted of the following offenses when the
         victim is less than 16 years of age shall be sentenced to a
         mandatory term of imprisonment as follows:

            18 Pa.C.S. § 3123 (relating to involuntary deviate
            sexual intercourse)—not less than ten years.

                                *     *      *

      (c) Proof at sentencing.—The provisions of this section shall
      not be an element of the crime, and notice of the provisions of
      this section to the defendant shall not be required prior to

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      conviction, but reasonable notice of the Commonwealth’s
      intention to proceed under this section shall be provided after
      conviction and before sentencing. The applicability of this section
      shall be determined at sentencing. The court shall consider any
      evidence presented at trial and shall afford the Commonwealth
      and the defendant an opportunity to present any necessary
      additional evidence and shall determine, by a preponderance of
      the evidence, if this section is applicable.

42 Pa.C.S. § 9718(a)(1).

      In Alleyne, the United States Supreme Court held that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

must be found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. In

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), we discussed

the relevant portion of the Alleyne Court’s rationale:

      Alleyne is an extension of the Supreme Court’s line of cases
      beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000).
      In Alleyne, the Court overruled Harris v. United States, 536
      U.S. 545 (2002), in which the Court had reached the opposite
      conclusion, explaining that there is no constitutional distinction
      between judicial fact[-]finding which raises the minimum
      sentence and that which raises the maximum sentence.

         It is impossible to dissociate the floor of a sentencing
         range from the penalty affixed to the crime. Indeed,
         criminal statutes have long specified both the floor and
         ceiling of sentence ranges, which is evidence that both
         define the legally prescribed penalty.       This historical
         practice allowed those who violated the law to know, ex
         ante, the contours of the penalty that the legislature
         affixed to the crime—and comports with the obvious truth
         that the floor of a mandatory range is as relevant to
         wrongdoers as the ceiling.       A fact that increases a
         sentencing floor, thus, forms an essential ingredient of the
         offense.

         Moreover, it is impossible to dispute that facts increasing
         the legally prescribed floor aggravate the punishment.
         Elevating the low-end of a sentencing range heightens the

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          loss of liberty associated with the crime: the defendant’s
          expected punishment has increased as a result of the
          narrowed range and the prosecution is empowered, by
          invoking the mandatory minimum, to require the judge to
          impose a higher punishment than he might wish. Why
          else would Congress link an increased mandatory
          minimum to a particular aggravating fact other than to
          heighten the consequences for that behavior? This reality
          demonstrates that the core crime and the fact triggering
          the mandatory minimum sentence together constitute a
          new, aggravated crime, each element of which must be
          submitted to the jury.

     Alleyne, [133 S.Ct.] at 2160-61 (internal quotation marks and
     citations omitted).

Miller, 102 A.3d at 994-95 (citations modified).

     In    light   of    the    constitutional     pronouncement      in   Alleyne,    we

systematically      have       been   declaring      unconstitutional      Pennsylvania’s

mandatory minimum sentencing statutes that permit a trial court, rather

than a jury, to make critical factual findings at sentencing.                         See

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (holding 42

Pa.C.S. § 9712.1, which imposes a mandatory minimum sentence for

possessing a firearm in close proximity to narcotics, unconstitutional);

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) (holding 42

Pa.C.S. § 9712, pertaining to mandatory minimum sentencing provisions

associated   with       the    commission   of     certain   crimes   with    a   firearm,

unconstitutional); Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super.

2014) (applying Alleyne and recognizing that the mandatory minimum

sentences associated with the weight of narcotics possessed by a drug

dealer pursuant to 18 Pa.C.S. § 7508 are unconstitutional).

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       In Wolfe, supra, we considered the constitutionality of section 9718,

the statute at issue in the case sub judice.       There, the appellant was

sentenced to a mandatory minimum sentence of ten to twenty years

pursuant to 42 Pa.C.S. § 9718(a)(1), following his conviction for involuntary

deviate sexual intercourse with a person less than sixteen years-old. Id. at

802. Citing Alleyne, Newman, and Valentine, we held that section 9718

was facially unconstitutional because the elements of the “proof at

sentencing” provision required a trial judge, rather than a jury, to make

factual findings by a preponderance of the evidence, and not beyond a

reasonable doubt.        Wolfe, 106 A.3d at 805.     Because the trial court

sentenced Brown pursuant to the same “proof at sentencing” provision as in

Wolfe, its application herein similarly was unconstitutional.8




____________________________________________


8
       Although the additional fact that triggered Brown’s mandatory
sentence (i.e., the victim’s age being less than sixteen at the time of the
offense) is also contained as an element of the offense for which he was
convicted, Brown’s sentence was nonetheless illegal. See Wolfe, 106 A.3d
at 806 (“[A]lthough the jury was required to find that the victim was less
than 16 years of age in order to convict Appellant, . . . mandatory minimum
sentence statutes in Pennsylvania of this format are void in their entirety.”).
Wolfe makes clear that the “proof at sentencing” provision contained in 42
Pa.C.S. § 9718 is not severable from the section’s other provisions, and the
entire statute is facially void. Id.; see also Commonwealth v. Hopkins,
117 A.3d 247, 262 (Pa. 2015) (holding that the “proof at sentencing”
provision contained in 18 Pa.C.S. § 6317 (relating to drug crimes committed
in school zones) could not be severed without usurping the role of the
legislature).




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      Having found one non-frivolous issue in Brown’s appeal, we deny

counsel’s petition to withdraw.   Furthermore, because we clearly are

constrained by Wolfe to conclude that the trial court sentenced Brown

pursuant to an unconstitutional mandatory minimum statute, we vacate

Brown’s judgment of sentence and remand for resentencing.

      Judgment of sentence vacated.        Case remanded for resentencing

consistent with this memorandum. Petition to withdraw as counsel denied.

Jurisdiction relinquished.

      Judge Panella joins the memorandum.

      Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




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