J-S71043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN GALUS                                 :
                                               :
                       Appellant               :   No. 1957 EDA 2017

                    Appeal from the PCRA Order June 8, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012610-2010


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 17, 2019

        Appellant John Galus appeals from the order that denied his timely first

Post Conviction Relief Act1 (PCRA) petition without an evidentiary hearing.

Appellant asserts that trial counsel was ineffective for failing to challenge the

minor complainant’s trial testimony as being too vague to establish when the

abuse occurred.2       Appellant also challenges the legality of the mandatory

minimum sentences imposed for rape, involuntary deviate sexual intercourse

(IDSI), and aggravated indecent assault.3            We affirm in part, but are

constrained to vacate the judgment of sentence and remand for resentencing.

____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2   We address Appellant’s issues in a different order than presented in his brief.

3 18 Pa.C.S. §§ 3121, 3123, and 3125, respectively. As discussed below,
there are variances between the specific subsections under which Appellant
was charged, found guilty, and sentenced.
J-S71043-18



      This Court previously summarized the facts of Appellant’s convictions as

follows:

      The Commonwealth’s case consisted primarily of the testimony of
      the complainant, the Appellant’s biological daughter [born in June
      of 1994]. Her testimony established that the Appellant sexually
      abused and raped her during a significant portion of her childhood.
      When the complainant was very young, the Appellant and the
      complainant’s mother separated. The Appellant acquired custody
      visitation rights pertaining to the complainant for every other
      weekend. The complainant testified that around the age of five,
      the Appellant began touching her body, including her breasts and
      vagina. The complainant indicated that the Appellant sometimes
      directed her to remove her clothing and touch her own vagina.
      She sometimes observed the Appellant masturbate after she
      complied. The complainant was subject to similar acts of abuse
      nearly every time she visited the Appellant.

      The complainant also detailed performing oral sex on the
      Appellant on at least five occasions spanning several years. The
      first instance of oral sex occurred when the complainant was
      approximately seven years old. The complainant also indicated
      the Appellant performed oral sex on her. The complainant stated
      that the Appellant viewed pornographic videos prior to engaging
      in oral sex.    The complainant estimated that the Appellant
      performed oral sex on her approximately ten times over the
      course of the abuse. Additionally, each act of oral sex occurred in
      the Appellant’s apartment when no one else was present.

      The complainant detailed the escalation of sexual activity after she
      was ten years old, which included the initiation of vaginal
      intercourse. The instances of intercourse always took place in the
      Appellant’s bedroom.        The Appellant engaged in vaginal
      intercourse less than five times in total. The complainant recalls
      one specific occasion when she felt pain urinating immediately
      following the act and noticed blood in her urine. During the
      duration of the sexual abuse, the Appellant resided in a portion of
      his mother’s residence . . . .

      The complainant first divulged the sexual abuse when she was
      approximately twelve years old, by telling her friend.   The
      complainant next told a classmate sometime in 2010. The
      complainant then apprised her mother of the abuse shortly


                                     -2-
J-S71043-18


       thereafter. Detective Erin Hinnov, badge number 8082, testified
       regarding her investigation of the alleged abuse of the
       complainant. Based on the information received pursuant to the
       investigation, Detective Hinnov drafted an arrest warrant for the
       Appellant.

Commonwealth v. Galus, 793 EDA 2012 at 1-2 (Pa. Super. filed May 10,

2013) (unpublished mem.) (quoting Trial Ct. Op. 7/13/12, at 1-3). Appellant

was arrested on July 1, 2010, and charged with numerous sexual offenses,

including rape—forcible compulsion and aggravated indecent assault—without

consent.4

       Appellant proceeded to a jury trial in August of 2011, at which the

complainant testified. Appellant testified in his own defense and called his

mother, who lived in the same home in which the assaults took place, and two

additional witnesses. Following closing arguments, the trial court charged the

jury on the following crimes: (1) rape—person less than thirteen years of age,

(2) IDSI—person less than thirteen years of age, (3) aggravated indecent

assault, (4) incest, and (5) indecent assault—a person less than thirteen years




____________________________________________


4 See 18 Pa.C.S. §§ 3121(a)(1) and 3125(a)(1), respectively. The certified
record transmitted to this Court does not contain the criminal information filed
by the Commonwealth. However, the Commonwealth does not dispute that
Appellant was initially charged with rape—forcible compulsion and aggravated
indecent assault—without consent, among other charges. Commonwealth’s
Brief at 10 n.4. The Commonwealth does not indicate whether Appellant was
initially charged for sexual offenses committed against a person under thirteen
years of age.




                                           -3-
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of age.5 See N.T., 8/25/11, at 33, 37-40. As to aggravated indecent assault,

the trial court’s instruction required the jury to find that Appellant penetrated

the complainant’s genitals with a part of his body by forcible compulsion or

threat of forcible compulsion and that the complainant was less than thirteen

years old.6 See id. at 39. On August 25, 2011, a jury found Appellant guilty

of those offenses.

        On February 16, 2012, the trial court sentenced Appellant to an

aggregate term of ten to twenty years’ imprisonment.             The trial court’s

sentence included mandatory minimum sentences of (1) ten to twenty years’

incarceration for rape, (2) a concurrent ten to twenty years’ incarceration for

IDSI, and (3) a concurrent five to ten years’ incarceration for aggravated

indecent assault.7 See 42 Pa.C.S. § 9718. The trial court, at the sentencing

hearing and in its sentencing order, indicated that it sentenced Appellant for

rape—forcible     compulsion,      IDSI—forcible   compulsion,   and   aggravated




____________________________________________


5 See 18 Pa.C.S. §§ 3121(c), 3123(b), 3125, 4302, and 3126(a)(7),
respectively. The trial court did not instruct the jury on rape—forcible
compulsion or aggravated indecent assault—without consent. See N.T.,
8/25/11, at 37-40.

6   See 18 Pa.C.S. § 3125(b).

7 The trial court also sentenced Appellant to concurrent sentences of five to
ten years’ imprisonment for incest and three and one-half to seven years’
imprisonment for indecent assault.




                                           -4-
J-S71043-18



indecent assault—without consent. Sentencing Order, 2/16/12, at 1; N.T.,

2/16/12, at 27.

       Appellant took a direct appeal, and on May 10, 2013, this Court

affirmed.8 Galus, 793 EDA 2012 at 1. On March 12, 2014, the Pennsylvania

Supreme      Court   denied     Appellant’s    petition   for   allowance   of   appeal.

Commonwealth v. Galus, 87 A.3d 318 (Pa. 2014).

       Appellant timely filed a pro se PCRA petition, which the PCRA court

docketed on July 28, 2014.            The court appointed counsel, who filed an

amended PCRA petition on July 7, 2015. In his amended petition, Appellant

asserted:

       (1) At trial and on appeal, the evidence against [Appellant] was
       very vague and sketchy, lacking in enough particularity to justify
       the prosecution.

       (2) Counsel was ineffective for failing to object to the lack of
       particularity in the evidence presented by the prosecution or to
       raise the issue on direct appeal.

       (3) A mandatory sentence was imposed without the appropriate
       factors having been determined as an element of the underlying
       offence by the jury beyond a reasonable doubt.

       (4) [Appellant] was denied his rights to due process and effective
       counsel, under the laws and Constitutions of the United States and

____________________________________________


8 The United States Supreme Court decided Alleyne v. United States, 570
U.S. 99 (2013), on June 17, 2013, thirty-eight days after this Court affirmed
Appellant’s judgment of sentence, but before the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal. Alleyne held that “any
fact that increases the mandatory minimum is an ‘element’ that must be
submitted to the jury” and be found beyond a reasonable doubt. Alleyne,
570 U.S. at 103.


                                           -5-
J-S71043-18


      Pennsylvania, as [Appellant]’s counsel failed to raise the issue of
      the illegal sentence at trial or on direct appeal.

      (5) Said mandatory sentence was an illegal sentence.

Am. PCRA Pet., 7/7/15, ¶ 7.

      On May 17, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss. Appellant did not respond. On June 8, 2017, the court

entered the order dismissing Appellant’s petition.

      Appellant timely appealed. The PCRA court did not order a Pa.R.A.P.

1925(b) statement. A docket entry on March 29, 2018, indicated that the

court did not file an opinion because the judge, who presided at trial and the

PCRA proceeding, was no longer sitting on the court.

      Appellant presents two questions, which we have reordered as follows:

      [1.] Did the [PCRA court] err in failing to grant PCRA relief where
      the evidence against the Appellant was vague and had insufficient
      specificity to sustain the conviction?

      [2.] Did the [PCRA court] err in failing to vacate the sentence as
      the Appellant had been subject to unconstitutional mandatory
      minimum sentences?

Appellant’s Brief at 9.

      Appellant first claims that trial counsel was ineffective for failing to

challenge the lack of particularity to justify his convictions. Appellant notes

that at trial, the closest that any of the witnesses could pinpoint an alleged

incident was more than a twelve month period. Appellant’s Brief at 21. He

alleges that this lack of specificity precluded him from raising a meaningful

defense. Id. at 18 (citing Commonwealth v. Devlin, 333 A.2d 888 (Pa.


                                     -6-
J-S71043-18



1975)). Appellant, in a single paragraph, asserts: “This issue was not raised

by counsel on direct appeal. This was ineffective assistance of counsel and

there is an enforceable right to effective appellate counsel. There could have

been no rational, strategic or tactical reason for counsel to have failed to have

raised the issues on appeal.” Id. at 21-22.

      “Our standard of review from the grant or denial of post-conviction relief

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and whether it is free of legal error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation

omitted). A PCRA court may dismiss a petition if it determines the petitioner

fails to raise a genuine issues of material fact in controversy. Pa.R.Crim.P.

907(1); Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

      When considering a claim of ineffective assistance of counsel, “[c]ounsel

is presumed to have been effective and the burden of rebutting that

presumption rests with the petitioner.” Commonwealth v. Fletcher, 986

A.2d 759, 772 (Pa. 2009) (citation omitted). A petitioner “must plead and

prove that: (1) the legal claim underlying the ineffectiveness claim has

arguable merit; (2) counsel’s action or inaction lacked any reasonable basis

designed to effectuate petitioner’s interest; and (3) counsel’s action or

inaction resulted in prejudice to petitioner.” Commonwealth v. Mason, 130

A.3d 601, 618 (Pa. 2015) (citations omitted). “A PCRA petitioner must exhibit

a concerted effort to develop his ineffectiveness claim and may not rely on




                                      -7-
J-S71043-18



boilerplate allegations of ineffectiveness.”   Commonwealth v. Natividad,

938 A.2d 310, 322 (Pa. 2007) (citation omitted).

      It is well settled that

      [i]t is the duty of the prosecution to fix the date when an alleged
      offense occurred with reasonable certainty. The purpose of so
      advising a defendant of the date when an offense is alleged to
      have been committed is to provide him with sufficient notice to
      meet the charges and prepare a defense.

Commonwealth v. Brooks, 7 A.3d 852, 857-58 (Pa. Super. 2010) (citations

and quotation marks omitted). “If the opportunity to defend is inadequate,

the defendant is denied due process of law.” Devlin, 333 A.2d at 891 (citation

omitted).

      However, the nature of the due process right “is not reducible to a

simple mathematical formula.” Id. at 892 (citation omitted). Rather, a court

must consider “the facts and circumstances of each case.” Id. (citations and

quotation marks omitted). As this Court noted, “our Supreme Court opted for

a balancing approach to resolve conflicting interests of the accused vis-à-vis

the victim when it came to the specificity required to be proven as to the time-

frame of the alleged crime.” Brooks, 7 A.3d at 860 (citation omitted). The

Commonwealth is not required to prove a date certain of an offense and has

“broad latitude when attempting to fix the date of offenses which involve a

continuous course of criminal conduct. This is especially true when the case

involves sexual offenses against a child victim.” Id. at 858 (citations omitted).




                                      -8-
J-S71043-18



      Instantly, Appellant raised general claims of a due process violation and

ineffective assistance of counsel in his amended PCRA petition. See Am. PCRA

Pet. ¶ 7(1)-(2). Appellant did not attempt to further develop this claim in the

PCRA court after the court issued its Rule 907 notice. In this appeal, Appellant

has set forth the legal principles governing the alleged due process violation.

See Appellant’s Brief at 18. Appellant further relies on his assertion that the

trial testimony indicated that a given incident occurred within a year or

“around” a year’s time, or had no timeframe at all. See Appellant’s Brief at

21. However, the Commonwealth is not required to prove a date certain of a

given offense, and Appellant does not support his argument in terms of a

balancing approach or a discussion of the specific circumstances of this case.

See Devlin, 333 A.2d at 892; Brooks, 7 A.3d at 860.

      Therefore, Appellant failed to establish arguable merit to his underlying

due process issue. See Devlin, 333 A.2d at 892; Brooks, 7 A.3d at 860.

Moreover, Appellant has not set forth a genuine issue of material fact

regarding his ineffectiveness claim. See Wah, 42 A.3d at 338; cf. Natividad,

938 A.2d at 322. Accordingly, we discern no basis to disturb the PCRA court’s

decision to dismiss Appellant’s ineffective assistance of counsel claim. See

Ousley, 21 A.3d at 1242.

      Appellant next claims that the mandatory minimum sentences for rape,

IDSI, and aggravated indecent assault are illegal in light of Alleyne and

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). Appellant’s Brief at 12-

15.   Appellant argues that he properly raised his claim in a timely PCRA

                                     -9-
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petition, because Alleyne was decided before his sentences became final. Id.

at 13-15 (citing Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018) and

Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015)).               Appellant

suggests that he is entitled to resentencing because Section 9718 has been

held to be unconstitutional on its face. Id. at 15-16.

      The Commonwealth does not dispute that Appellant’s Alleyne claim is

properly before this Court.    See Commonwealth’s Brief at 7 n.3 (citing

DiMatteo, 177 A.3d at 191).       The Commonwealth also agrees that the

mandatory minimum sentence for IDSI is illegal.      Id. at 9.   However, the

Commonwealth argues that the trial court properly sentenced Appellant to

mandatory minimum sentences for rape—person under thirteen years of age

and aggravated indecent assault—person under thirteen years of age. Id. at

8-10. The Commonwealth notes that in Commonwealth v. Resto, 179 A.3d

18 (Pa. 2018) (plurality), several Justices of the Pennsylvania Supreme Court

concluded that portions of Section 9718 did not violate Alleyne. Id. The

Commonwealth further acknowledges that the record contains variances

between the specific charges discussed at the time of trial and at sentencing.

Id. at 10. Nevertheless, the Commonwealth suggests that the jury’s findings

that Appellant was guilty of rape—person under thirteen years of age and

aggravated indecent assault—person under thirteen years of age authorized

the trial court to impose the mandatory minimum sentences. Id. at 10.




                                    - 10 -
J-S71043-18



       It is well settled that an Alleyne challenge goes to the legality of

sentence.9     See Commonwealth v. Barnes, 151 A.3d 121, 126-27 (Pa.

2016). “When reviewing the legality of a sentence, our standard of review is

de novo and our scope of review is plenary.” Commonwealth v. Melvin,

172 A.3d 14, 19 (Pa. Super. 2017), appeal denied, 187 A.3d 207 (Pa. 2018).

       To provide further context to the issue raised by Appellant, it is helpful

to review the relevant provisions of Section 9718 and the Pennsylvania

Supreme Court’s decisions in Commonwealth v. Hopkins, 117 A.3d 247

(Pa. 2015), Wolfe, and Resto.

       Section 9718 states, in part:

       (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. § 3121(a)(1), (2), (3), (4) and (5) (relating to
              rape)—not less than ten years.

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

              18 Pa.C.S. § 3125(a)(1) through (6) (relating to aggravated
              indecent assault)—not less than five years.


____________________________________________


9  We acknowledge that an Alleyne challenge may be considered in a PCRA
petition when the petitioner’s sentence was rendered illegal before his
judgment of sentence became final and he presented his claim in a timely
petition for post-conviction relief. See DiMatteo, 177 A.3d at 192. Because
it is clear that DiMatteo applies in this case, we proceed to review Appellant’s
Alleyne claim.

                                            - 11 -
J-S71043-18


                                  *     *      *

          (3) A person convicted of the following offenses shall be
          sentenced to a mandatory term of imprisonment as
          follows:

            18 Pa.C.S. § 3121(c) and (d)—not less than ten years.

            18 Pa.C.S. § 3125(a)(7)—not less than five years.

            18 Pa.C.S. § 3125(b)—not less than ten years.

                                  *     *      *

      (c) Proof at sentencing.--The provisions of this section shall not
      be an element of the crime . . . . 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),(3), (c) (emphases added).

      In Hopkins, the defendant was charged with numerous drug offenses,

and the Commonwealth filed an information indicating its intent to seek a

mandatory minimum sentence under 18 Pa.C.S. § 6317. Hopkins, 117 A.3d

at 250.    Section 6317, in relevant part, called for the imposition of a

mandatory minimum sentence when certain drug offenses were committed

within 1,000 feet of a school zone. See 18 Pa.C.S. § 6317(a). Additionally,

Section 6317 contained a judicial fact finding provision that permitted the trial

court to determine the distance between the location of the offense and a

school zone at sentencing by a preponderance of the evidence.           See 18

Pa.C.S. § 6317(b).




                                      - 12 -
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        Before trial, the defendant challenged the constitutionality of Section

6317 based on Alleyne. Hopkins, 117 A.3d at 250. The trial court found

the statute unconstitutional based on the judicial fact finding provision in

Section 6317(b).         Id.     The Commonwealth appealed directly to the

Pennsylvania Supreme Court and argued that the unconstitutional fact finding

provision was severable from the remainder of the statute. Id. at 250, 252-

53.    The Commonwealth further suggested that the unconstitutionality of

judicial fact finding provision could be cured by the use of special verdicts.

Id. at 253.

        The Hopkins Court rejected the Commonwealth’s argument that

Section 6317(b) was severable. Specifically, the Court reviewed the language

of Section 6317 to determine whether the statute’s provisions violated

Alleyne, and whether the statute could “survive without those provisions in

accord with the intent of the General Assembly.” Hopkins, 117 A.3d at 257

(citing 1 Pa.C.S. § 1925).10
____________________________________________


10   Section 1925 provides:

        The provisions of every statute shall be severable. If any provision
        of any statute or the application thereof to any person or
        circumstance is held invalid, the remainder of the statute, and the
        application of such provision to other persons or circumstances,
        shall not be affected thereby, unless the court finds that the valid
        provisions of the statute are so essentially and inseparably
        connected with, and so depend upon, the void provision or
        application, that it cannot be presumed the General Assembly
        would have enacted the remaining valid provisions without the
        void one; or unless the court finds that the remaining valid



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J-S71043-18



       Applying this analysis, the Hopkins Court first concluded that

       numerous provisions of Section 6317 are unconstitutional in light
       of the United States Supreme Court’s decision in Alleyne. After
       Alleyne, these aspects of the statute—that the provisions are
       declared not to be elements of the offense, that notice is not
       required prior to conviction, that factfinding is conducted at
       sentencing, that the sentencing court performs factfinding, that
       the applicable standard is preponderance of the evidence, and that
       the Commonwealth has the right to appeal where the imposed
       sentence was found to be in violation of the statute—are now
       infirm. However, the other provisions—specifying the proximity of
       the drug transaction to a school, and requiring the age of the
       offender to be over 18—do not offend the Supreme Court’s
       mandate in Alleyne.

Hopkins, 117 A.3d at 258-59.

       The Hopkins Court next concluded that the constitutional provisions of

Section 6317 could not stand on their own.         Id. at 259-61.   The Court

reasoned that the General Assembly clearly intended that the distance

between a drug transaction and a school to be sentencing factors and not

elements of a substantive offense. Id. at 259. Moreover, the Court noted

that Section 6317 did not provide for an alternate mechanism for the

mandatory minimum sentence to apply. Id. at 261. In sum, the Hopkins

Court concluded that the unconstitutional portions of Section 6317 could not

be severed, noting:

       It is beyond our province to, in essence, rewrite Section 6317 to
       transform its sentencing commands, whether by utilizing special
____________________________________________


       provisions, standing alone, are incomplete and are incapable of
       being executed in accordance with the legislative intent.

1 Pa.C.S. § 1925.

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       verdicts or otherwise, into a new substantive offense, contrary to
       the express legislative intent to the contrary. Thus, we find the
       unoffending portions of the statute, standing alone, without a
       wholesale rewriting, are incomplete and incapable of being
       vindicated in accord with the legislature’s intent.

Id. (citation omitted).

       In Wolfe, the Pennsylvania Supreme Court addressed Section 9718,

which is at issue in this appeal. In Wolfe, the defendant was found guilty of

IDSI—person less than sixteen years of age, see 18 Pa.C.S. § 3123(a)(7),

and sentenced to a mandatory minimum of ten years’ imprisonment under

Section 9718(a)(1).       Wolfe, 140 A.3d at 653.      In the defendant’s direct

appeal, this Court raised the legality of the mandatory minimum sentence sua

sponte, and vacated the sentence. Wolfe, 140 A.3d at 654. The Pennsylvania

Supreme Court, in Wolfe, affirmed this Court.

       The Wolfe Court11 concluded that the judicial fact-finding provision in

Section 9718(c) was integral to that statute, and that Section 9718(a) could

not stand alone. Id. at 661. The Wolfe Court noted:

       Although the anomaly in Section 9718—i.e., the incorrect
       specification [in Section 9718(c)] that the age-of-victim factor is
       not an element of a Section 3123(a)(7) IDSI crime—injects a
       conceptual wrinkle into this case, it does not alter our core
       assessment. In this regard, we agree with [the defendant] and his
       amicus that, under Alleyne, Section 9718 must be treated as
       creating a “distinct and aggravated crime,” . . . ; that the statute’s
       directive for judicial fact-finding attaches to that aggravated crime
       notwithstanding a jury verdict; and that sentencing judges are not
____________________________________________


11Chief Justice Saylor wrote the lead opinion in Wolfe, with Justices Baer,
Donohue, and Wecht joining the lead opinion’s application of Alleyne.
Justices Todd and Dougherty dissented.


                                          - 15 -
J-S71043-18


       free to disregard such explicit legislative mandates by substituting
       their own procedures. Accordingly, although the jury at [the
       defendant’s] trial plainly decided that the victim was under sixteen
       years of age, the sentencing court was bound to make its own
       determination at sentencing, see 42 Pa.C.S. § 9718(c), but it
       could not do so in a manner consistent with the Sixth Amendment
       to the United States Constitution, on account of Alleyne.

Id. (some citations and footnote omitted). The Wolfe Court concluded: “In

summary, we reaffirm Hopkins and find that Section 9718 is irremediably

unconstitutional on its face, non-severable, and void.”12 Id. at 663.

       Lastly, in Resto, a divided Pennsylvania Supreme Court reversed this

Court’s decision that vacated a ten-year mandatory minimum sentence under

Section 9718(a)(3) for rape—person less than thirteen years of age.13 Resto,

179 A.3d at 20; see also Commonwealth v. Resto, 2125 MDA 2014 (Pa.

Super. filed July 14, 2015) (unpublished mem.). Chief Justice Saylor authored

the opinion announcing the judgment of the Court (OAJC) and concluded that

unlike Section 9718(a)(1), Section 9718(a)(3) did not violate Alleyne.

Resto, 179 A.3d at 20. The OAJC reasoned that Section 9718(a)(3) imposed

a mandatory minimum sentence based on the defendant’s conviction for a

____________________________________________


12 The Wolfe Court also rejected the Commonwealth’s argument that the
violation of Alleyne was harmless in light of the jury’s finding of the element
of the offense that victim was under sixteen years of age. The Court reasoned:
“We are also unable to deem the violation inherent in the application of a
sentencing statute that is unconstitutional on its own non-severable terms to
be harmless.” Wolfe, 140 A.3d at 661-62.

13As discussed below, Chief Justice Saylor wrote the opinion announcing the
judgment of the Court. Justices Todd and Dougherty filed concurring opinions
concurring in the result only. Justices Baer and Mundy filed dissenting
opinions. Justices Donohue and Wecht did not participate in the decision.

                                          - 16 -
J-S71043-18



specific offense and required “no proof of any predicate or aggravating facts.”

Id.

        The OAJC then proceeded to a severability analysis, indicating that “to

the degree that the unconstitutional provisions would be deemed non-

severable, Section 9718 as a whole would be void as a consequence of

Alleyne.” Id. at 21. The OAJC did not address whether Section 9718(a)(3)

was severable from the unconstitutional judicial fact finding provision in

Section    9718(c).     Id.    Instead,   the   OAJC   assessed   “whether   the

unconstitutional provisions of Section 9718—i.e., those that do specify

aggravating facts relative to other mandatory minimum sentences—may be

severed.”    Id.   The OAJC concluded that those unconstitutional provisions

were severable. Id.

        The OAJC further acknowledged the broad language used in Wolfe.

Nevertheless, the OAJC’s analysis sought to limit Wolfe to the facts of that

case.     Id. at 22-23 (suggesting that Wolfe should have said “Section

9718[(a)(1)] is irremediably unconstitutional on its face, [Section 9718(c) is]

non-severable, and [Section 9718(a)(1)] is void” (emphasis in original)).

        In their concurring opinions in Resto, Justices Todd and Dougherty

agreed that Section 9718(a)(3) did not implicate Alleyne concerns. See id.

at 28 (Todd, J., concurring); id. at 30 (Dougherty, J., concurring). However,

both Justices Todd and Dougherty maintained that they would overrule Wolfe,

and both Justices questioned the OAJC’s reasoning that distinguished Wolfe.

See id. at 29 (Todd, J., concurring) (concluding that “Wolfe’s rationale and

                                     - 17 -
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the OAJC’s approach sub judice cannot both stand”); id. at 30 (Dougherty, J.,

concurring)    (indicating   disagreement     with    “the   OAJC’s    reasoning

distinguishing the Alleyne analyses of Section 9718(a)(3), at issue in this

case, and Section 9718(a)(1) at issue in [Wolfe]”).

      In their dissenting opinions, Justices Baer and Mundy relied on Wolfe

to conclude that the unconstitutionality of the judicial fact-finding provision in

Section 9718(c) rendered the entire statute facially unconstitutional. See id.

at 31 (Baer, J., dissenting); id. at 35 (Mundy, J., dissenting). Justice Mundy

reasoned that Hopkins and Wolfe required the conclusion that “the

procedural mandates of Section 9718 are so interwoven with the substantive

provisions as to be non-severable and facially unconstitutional.” Id. at 36

(Mundy, J., dissenting) (citation omitted).

      Following our review, we conclude that Resto is determinative of

Appellant’s sentencing challenge.     A majority of the Court deciding Resto

agreed to reverse this Court’s decision and reinstate the mandatory minimum

sentence under Section 9718(a)(3). Therefore, the result of the case, but not

its reasoning, is precedential. See Commonwealth v. Bethea, 828 A.2d

1066, 1073 (Pa. 2003) (discussing Commonwealth v. McPhail, 692 A.2d

139 (Pa. 1997), and noting that “[w]hen a court is faced with a plurality

opinion, usually only the result carries precedential weight; the reasoning does

not”). Although the OAJC did not garner a majority in its severability analysis

or its attempt to limit Wolfe to the facts of that case, the result remains the




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same: a mandatory minimum sentence under Section 9718(a)(3) is

constitutionally sound.

      Accordingly, we conclude that Appellant’s sentence for rape—person

less that thirteen years of age was proper under Section 9718(a)(3).

However, as suggested by the Commonwealth, the mandatory minimum

sentence for IDSI must be vacated because IDSI is an enumerated offense

under Section 9718(a)(1), not 9718(a)(3).

      Lastly,   there   is   substantial   confusion   regarding   the   applicable

mandatory minimum sentencing provision regarding Appellant’s conviction for

aggravated indecent assault. Instantly, the trial court charged the jury, and

the jury found, that Appellant committed aggravated assault by forcible

compulsion and the complainant was less than thirteen years of age. See

N.T., 8/25/11, at 39. Therefore, the jury found Appellant guilty of a first-

degree felony offense under subsection (b) of the aggravated indecent assault

statute. See 18 Pa.C.S. § 3125(b) (defining aggravated assault of a child as,

inter alia, committing aggravated indecent assault by forcible compulsion and

the complainant is less than thirteen years of age); see also 18 Pa.C.S. §

3125(a)(7) (defining aggravated indecent assault—person less than thirteen

years of age) & (c) (defining the grades of aggravated indecent assault).

      At sentencing, however, the Commonwealth sought a five year

mandatory minimum sentence based on the apparent belief that Appellant

was convicted of a second-degree felony offense under subsection (a)(7) of

the aggravated indecent assault statute. See N.T., 2/16/12, at 20; 42 Pa.C.S.

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§ 9718(a)(3).    In actuality, the jury’s verdict authorized a mandatory

minimum sentence of ten to twenty years’ imprisonment. See 42 Pa.C.S. §

9718(a)(3).   Given this confusion, we are also constrained to vacate the

mandatory minimum sentence for aggravated indecent assault, as well.

      In sum, we affirm the PCRA court’s order dismissing Appellant’s petition

in part. However, we reverse the order to the extent it dismissed Appellant’s

claim that his sentences for IDSI and aggravated indecent assault were illegal.

Although our decision would not disturb the trial court’s overall sentencing

scheme, we vacate the judgment of sentence and remand this matter for

resentencing, at which time the trial court may also take the opportunity to

correct the record as to the offenses for which Appellant was charged, found

guilty, and will be resentenced.

      Order affirmed in part and reversed in part.     Judgment of sentence

vacated. Case remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/19




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