J-S16044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER ANTHONY TAYLOR

                            Appellant              No. 1168 MDA 2014


             Appeal from the Judgment of Sentence June 17, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0003093-2012


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED JULY 07, 2015

       Christopher Anthony Taylor appeals from the judgment of sentence

imposed on June 17, 2013, in the Court of Common Pleas of York County,

made final by the denial of post-sentence motions on June 20, 2014.       On

March 8, 2013, a jury convicted Taylor of statutory sexual assault,

aggravated indecent assault (complainant is less than 16 years of age),

indecent assault (complainant is less than 16 years of age), unlawful contact

with a minor (sexual offenses), involuntary deviate sexual intercourse

(“IDSI”) (complainant is less than 16 years of age), corruption of minors

(defendant is 18 years of age or older).1 The court sentenced Taylor to an

____________________________________________


1
  18 Pa.C.S. §§ 3122.1, 3125(a)(8), 3126(a)(8), 6318(a)(1), 3123(a)(7),
and 6301(a)(1)(ii), respectively.
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aggregate term of ten to 20 years’ imprisonment. On appeal, Taylor raises

several evidentiary issues and claims the verdict was against the weight of

the evidence. Although we conclude the issues raised by Taylor on appeal

are meritless, for the reasons set forth below, we are constrained to vacate

the judgment of sentence, and remand for resentencing.

       Taylor was a volunteer firefighter at the Dillsburg Citizens’ Hose

Company #1, who engaged in a sexual relationship with the victim, a

fourteen-year-old junior firefighter for a year-and-a-half.         The victim

indicated the relationship began in March of 2010, when she gave him her

phone number, and the two called or texted one another. Then, in June of

that year, they engaged in oral sex at his apartment for the first time.

Taylor and the victim eventually progressed to sexual intercourse, which the

victim testified occurred on a daily basis. The relationship became rocky, to

the point that they were not speaking to one another, in August of 2011

because the victim saw Taylor with another girl at his house, and

subsequently ended in November of 2011, when the victim’s mother

reported Taylor to the police.         Taylor was arrested and charged with the

aforementioned crimes.         A three-day jury trial began on March 6, 2013.2

The jury convicted Taylor of all counts.


____________________________________________


2
  Taylor took the stand at trial and denied all of the allegations. He testified
he had a strictly professional relationship with the victim. N.T., 3/6/2013-
(Footnote Continued Next Page)


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      Prior to sentencing, Taylor’s counsel filed a post-verdict motion, and a

motion to withdraw.         The court denied counsel’s motion to withdraw and

indicated counsel could make another request at the time of sentencing. On

June 17, 2013, the court sentenced Taylor to concurrent terms of three to

six years for statutory sexual assault, five to ten years for aggravated

indecent assault, one to two years for indecent assault, ten to 20 years for

IDSI,3 and three to six years for corruption of minors.4       The court also

granted counsel’s request to withdraw.

      New counsel was subsequently appointed and filed a petition to treat

Taylor’s previously filed post-verdict motion as a timely filed post-sentence

motion on July 17, 2013. The trial court granted this motion and ordered

counsel to file any amendments to the post-sentence motion within ten days

of receiving the trial transcripts. After counsel received the transcripts, the

court scheduled a hearing on the motion for February 28, 2014. Following

the hearing, the court granted the parties one month to file any supporting

memoranda. Taylor’s counsel filed a memorandum on March 7, 2014, and

the Commonwealth filed its memorandum on March 18, 2014. On June 20,
                       _______________________
(Footnote Continued)

3/8/2013, at 235. He also stated the relationship “got violent and hostile,”
and he “was having issues with [the victim] stalking [him].” Id. at 239.
3
    The court imposed a mandatory minimum sentence, pursuant to 42
Pa.C.S. § 9718, with respect to the IDSI conviction. See N.T., 6/17/2013,
at 15; Trial Court Opinion, 9/23/2014, at 2.
4
   The unlawful contact conviction was nolle prossed at sentencing.       N.T.,
6/17/2013, at 15.



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2014, the trial court denied Taylor’s post-sentence motion.        This appeal

followed.5

       Taylor raises the following four questions on appeal:

       1. Whether the trial court erred in admitting the prior consistent
          statements of (1) [the victim]’s statements made to Noelle
          Williams about a sexual relationship with [Taylor] and (2) [the
          victim]’s electronic communications to [Taylor] and other
          parties when such statements were hearsay, offered
          substantively, and no limiting instruction was given regarding
          their ultimate use by the jury?

       2. Whether admitting [the victim]’s prior consistent statements
          of (1) [the victim]’s statements made to Noelle Williams
          about a sexual relationship with [Taylor] and (2) [the
          victim]’s electronic communications to [Taylor] and other
          parties violates Pa.R.E. 613 when those statements went
          beyond mere rehabilitation and were instead used as
          substantive evidence by the Commonwealth?

       3. Whether the trial court erred in applying the holding of
          Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super
          2005) when the Tender Years’ Hearsay Exception was not
          raised, nor did it apply, to [Taylor]’s case?

       4. Whether the guilty verdict is against the weight of the
          evidence because it is based off of inconsistent testimony
          from witnesses who had a motive to lie and who were not
          credible?

Taylor’s Brief at 5.

       While Taylor raised his first three issues separately, he discusses them

together in his brief based on the nature of the claims.           Id. at 11.
____________________________________________


5
   On July 14, 2011, the trial court ordered Taylor to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Taylor
filed a concise statement on August 4, 2014. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on September 23, 2014.



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Moreover, Taylor focuses his argument on the alleged court error in

admitting prior consistent statements made by the victim that she was in a

sexual relationship with Taylor via the testimony of the victim’s friend,

Williams. Id. Accordingly, we will confine our analysis to this aspect of his

claim.6

        Specifically, Taylor contends Williams’ “testimony did not rehabilitate

[the victim], but was cumulative hearsay testimony that corroborated [the

victim]’s corrupt motive for claiming she was in a sexual relationship with

him.”     Id.   Taylor acknowledges that pursuant to Pennsylvania Rule of

Evidence 613, prior consistent statements are admissible in situations where

a witness has been discredited. However, he indicates, “To be admissible to

rebut a charge of improper motive, the prior consistent statement must have

been made before the motive to lie existed.” Id. (emphasis added). Here,

Taylor argues that in admitting the contested testimony, the trial court did

not address “whether the consistent statement was made before or after the

____________________________________________


6
    With respect to his third issue, that the trial court erred in applying the
holding of Hunzer, supra, because the tender years’ hearsay exception
does not apply to the present case, we note that he appears to abandon this
issue in his brief, and therefore, it is waived. See Taylor’s Brief at 13 n. 2
(With respect to Hunzer, “[c]ertain statements were admitted pursuant to
the Tender Years Exception. The victim in this case was over 12 years old.
Thus, Tenders Years is inapplicable.”); see also In re Jacobs, 936 A.2d
1156, 1167 (Pa. Super. 2007) (finding issue waived because appellant did
not address it in argument section of appellate brief). Nevertheless, even if
he did not abandon the claim, the trial court properly addressed the issue in
its Rule 1925(a) opinion. See Trial Court Opinion, 9/23/2014, at 4-5.



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corrupt motive arose.” Id. at 12. He states that while the victim’s version

of events is that they engaged in a sexual relationship, he claims “she made

it all up from the beginning based on a fantasy.”        Id. at 13 (footnote

omitted). Moreover, Taylor points to evidence that in September of 2010,

the victim discovered he was dating an “age-appropriate woman”, and

became hostile and violent, which demonstrated her “corrupt motive.” Id.

at 14. Therefore, when the victim told her friend in December of 2010, after

the corrupt motive arose, about the relationship, her statements were

inadmissible hearsay.   Id. at 15.   Lastly, Taylor asserts the admission of

Williams’ testimony is not harmless error because “[p]ermitting Ms. Williams

to corroborate [the victim]’s corrupt motive provided an unfair advantage to

[the victim] when weighing her testimony to that of Mr. Taylor’s.” Id. at 16.

      Our standard of review regarding the admissibility of evidence is well

settled:

      Admission of evidence is a matter within the sound discretion of
      the trial court, and will not be reversed absent a showing that
      the trial court clearly abused its discretion. Not merely an error
      in judgment, an abuse of discretion occurs when the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will, as shown by the evidence on record.

Commonwealth v. Handfield, 34 A.3d 187, 207-208 (Pa. Super. 2011)

(quotation omitted).

      With respect to the admission of prior consistent statements and the

allegation of a witness’s corrupt motive, we are guided by the following:


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     Pa.R.E. 613 provides, in relevant part … :

        Rule 613. Prior statements of witnesses

                                       ***

        (c) Evidence      of   prior      consistent   statement   of
        witness.

        Evidence of a prior consistent statement by a witness is
        admissible for rehabilitation purposes if the opposing party
        is given an opportunity to cross-examine the witness about
        the statement, and the statement is offered to rebut an
        express or implied charge of:

        (1) fabrication, bias, improper influence or motive, or
        faulty memory and the statement was made before that
        which has been charged existed or arose; or

        (2) having made a prior inconsistent statement, which the
        witness has denied or explained, and the consistent
        statement supports the witness’ denial or explanation.

     Pa.R.E. 613(c) (bold in original).

        The comment to this rule relevantly provides that “under
        Pa.R.E. 613(c), a prior consistent statement is always
        received for rehabilitation purposes only and not as
        substantive evidence.”         See Commonwealth v.
        Counterman, 553 Pa. 370, 719 A.2d 284, 301 (1998)
        (stating: “As a general rule, a prior consistent statement
        is hearsay, and its admissibility is dependent upon an
        allegation of corrupt motive or recent fabrication.
        Additionally, such statements have been admitted in
        response to an allegation of faulty memory.”)

     Commonwealth v. Baumhammers, 599 Pa. 1, 51, 960 A.2d
     59, 89-90 (2008).

     “A prior consistent statement is admissible only if it is made
     before    the   declarant  has   a   motive    to    fabricate.”
     Commonwealth v. Smith, 609 Pa. 605, 17 A.3d 873, 891 (Pa.
     2011) (citations omitted).


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        When considering the admissibility of prior statements, the
        importance of timing has often been emphasized. See,
        e.g., Commonwealth v. Hutchinson, 521 Pa. 482, 556
        A.2d 370 (1989) (requiring that, to be admissible, a prior
        statement must have been made before any corrupt
        motive has arisen). See also Pa.R.E. 613(c) comment
        (“When the witness admits and explains the inconsistent
        statement, the use of the consistent statement will depend
        upon the nature of the explanation and all of the
        circumstances that prompted the making of the consistent
        statement; the timing of that statement, although not
        conclusive, is one of the factors to be considered.”).

     Commonwealth v. Montalvo, 604 Pa. 386, 407, 986 A.2d 84,
     96 (2009).

Handfield, 34 A.3d at 208. Furthermore, “[w]here … it is apparent that the

defense centers around impeaching the credibility of a witness, a prior

consistent statement may, at the discretion of the trial court, be admitted

before impeachment.”    Commonwealth v. Beale, 665 A.2d 473, 475-76

(Pa. Super. 1995), citing Commonwealth v. Smith, 540 A.2d 246, 258

(Pa. 1988).

     Here, the trial court found the following:

           The Court finds that Commonwealth v. Hunzer is
     instructive regarding the instant matter. 868 A.2d 498 (Pa.
     Super. 2005). In the instant case, [Taylor] proffered a theory
     that the victim fabricated [Taylor]’s sexual conduct and that the
     victim had a motive to lie. Under the rules of evidence, evidence
     of a prior consistent statement is admissible for rehabilitation
     purposes if opposing counsel had an opportunity to cross-
     examine the witness, and the evidence is offered to rebut an
     express or implied charge of fabrication or improper motive.
     Pa.R.E. 613(c).      Case law further elaborates that “prior
     consistent statements may also be considered specially relevant
     when the witness’ status alone is such that his or her testimony
     may be called into question even in the absence of express
     impeachment.”        Hunzer, 868 A.2d at 512 (quoting

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      Commonwealth v. Willis, 552 A.2d 682, 691-92 (Pa. Super.
      1988)). The Hunzer court further reasoned that this situation
      would include the testimony of child victims of sexual assaults.
      Id.

             After considering this rule of evidence and applicable case
      law, the Court concludes that it did not err by allowing evidence
      of the victim’s prior consistent statements to be admitted during
      trial. As mentioned in his memorandum to the Court, [Taylor]
      still proceeds on a theory of fabrication and improper motive.
      Express charges of fabrication and improper motive are
      specifically enumerated exceptions to the general inadmissibility
      of prior consistent statements. See Pa.R.E. 613(c). Since
      [Taylor] had an opportunity to cross-examine the witness used
      at trial to produce this evidence, the Court properly admitted the
      evidence of the victim’s prior consistent statements.
      Additionally, this case presents one of the special situations
      presented in Hunzer, namely, that the case involves a child
      victim of sexual assault.

Order, 6/20/2014, at 1-2.

      We agree with the trial court’s well-reasoned analysis.       A careful

review of the record indicates that the testimony was elicited in response to

the defense’s theory that the victim fabricated the entire relationship.

Defense counsel began this attack during opening statements with explicit

assertions that the victim’s allegations were false:

      So, basically our defense will be, here’s a young 14-year-old for
      14 months, meets her trainer at the fire department, her
      neighbor and becomes fixated on him. And you’ll hear the
      circumstances of how she would visit that apartment every time.

            He’s 24 years old. He’s a good looking fellow. He was
      dating actually three girls during the course of this. Every time
      he would have a guest over to his apartment, she would show
      up. She would be threatening. She would raise a scene.
      He complained to multiple people. In fact, you’ll hear evidence
      that he went to his instructor, his EMT instructor, and said, what


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       am I going to do about this? This will [be] the first time that he
       has to tell his story.

             I want you to listen carefully to her testimony and what
       our defense will be is here’s a young 14-year-old, now she’s 16,
       17. She still doesn’t realize the consequences of the first
       report, and she does not want to change her story. So this
       is going on like a snowball gathering size down the hill. Listen
       carefully to the way she testifies.

            You’ll hear testimony that even after he was detained in
       York County Prison, people were coming over to his house when
       she purportedly had a boyfriend, she was still coming over
       and bothering them. That’s the extent of her fixation.

N.T., 3/6/2013-3/8/2013, at 65-66 (emphasis added).

       The victim was the first witness, and she stated she told Williams that

she was sexually involved with Taylor.             Id. at 79-80.7   The victim was

subjected to extensive cross-examination and based on her response, a

reasonable juror could infer whether or not she was fabricating her version

of events. Id. at 102-129. Williams then testified, relaying that the victim

told her about the relationship with Taylor in December of 2010. Id. at 131-

135.

       The victim’s account was also impeached by Taylor’s own testimony

that the sexual relationship did not occur, and that the victim was “violent”

and “stalking” him.        Id. at 221-279.         Additionally, Taylor attempted to

impeach the victim with testimony from his former girlfriend, Heidi Leahy,

____________________________________________


7
  The victim indicated that she told her friend in September of 2010. Id. at
80.



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regarding confrontations between herself and the victim and from Carol

Hess, his EMT instructor, who he confided in and asked for advice regarding

the victim.      Id. at 206-215; 218-219.8         As such, Williams’ testimony

regarding the victim’s sexual relationship with Taylor was offered not to

prove the truth of the matter asserted, but rather to rehabilitate the victim’s

credibility.

       Moreover, with respect to Taylor’s argument that the victim made

these statements to Williams after she had a motive to fabricate, e.g. three

months after discovering he was dating another woman, we find the timing

is not so critical as Taylor failed to demonstrate the victim had an incentive

to fabricate at the time she made the disclosures in question.               In

Commonwealth v. Montalvo, 986 A.2d 84 (Pa. 2009), the Pennsylvania

Supreme Court indicated that “[w]hen considering the admissibility of prior

statements, the importance of timing has often been emphasized.” Id. at

96. The Supreme Court pointed to Pa.R.E. 613(c) comment, which states,

“the use of the consistent statement will depend upon the nature of the

explanation and all of the circumstances that prompted the making of the

consistent statement; the timing of that statement, although not

conclusive, is one of the factors to be considered.”             Id. (emphasis

____________________________________________


8
  Further review of the trial testimony indicates that Taylor sought Hess’s
advice regarding an incident, in which the victim broke into Taylor’s
apartment. Id. at 218.



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added), citing Pa.R.E. 613(c), comment. Moreover, any notion of a motive

to fabricate was thoroughly discussed during the testimony of the victim.

Accordingly, we discern no abuse of discretion by the trial court in permitting

the admission of the victim’s prior consistent statements in order to

corroborate her impeached testimony.               Therefore, Taylor’s first argument

fails.

         Next, Taylor claims that the verdict was against the weight of the

evidence because “it is based off of inconsistent testimony from witnesses

who had a motive to lie and who were not credible.” 9 Taylor’s Brief at 17.

He contends that “had the jury carefully considered [the victim]’s testimony,

the jury would have found several aspects of it incredible and found [him]

not guilty.”    Id.10   Additionally, he states, “[T]he jury failed to adequately

consider that [the victim] had confronted several women that Mr. Taylor had

been dating on multiple occasions, including once after Mr. Taylor was

incarcerated for the charges she brought against him.” Id. at 18.

         Appellate review of a weight of the evidence claim is well-established:
____________________________________________


9
   Taylor properly preserved his challenge to the weight of the evidence by
raising it at sentencing. His counsel renewed the claim at the February 28,
2014, motion hearing. See Pa.R.Crim.P. 607(A); N.T., 6/17/2013, at 9;
N.T., 2/28/2014, at 14.
10
    For example, he points to her testimony, in which she stated he was
uncircumcised when he is actually circumcised. See Taylor’s Brief 17.
Moreover, he indicates that the victim’s mother did not report him to the
police for another four months after she found out about the relationship.
Id.



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      A weight of the evidence claim concedes that the evidence is
      sufficient to sustain the verdict, but seeks a new trial on the
      ground that the evidence was so one-sided or so weighted in
      favor of acquittal that a guilty verdict shocks one’s sense of
      justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20, 744
      A.2d 745, 751–52 (2000); Commonwealth v. Champney, 574
      Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review, an
      appellate court does not substitute its judgment for the finder of
      fact and consider the underlying question of whether the verdict
      is against the weight of the evidence, but, rather, determines
      only whether the trial court abused its discretion in making its
      determination. Widmer, 560 Pa. at 321–22, 744 A.2d at 753;
      Champney, 574 Pa. at 444, 832 A.2d at 408.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S.Ct. 1792 (U.S. 2014).

      Here, the trial court found the following:

            [Taylor] avers that no credible evidence exists because the
      jury based its verdict off of inconsistent testimony. Basically,
      [Taylor] reiterates the overarching argument that the witnesses
      for the Commonwealth had a motive to lie and, for this reason,
      were not credible. However, these arguments fail to note the
      standard for challenging the weight of the evidence and
      credibility determinations.

            In this case, the jury was free to believe all, part, or none
      of the testimony presented at trial. The jury chose to believe
      the victim’s account of the incident, which was corroborated by
      numerous Commonwealth witnesses, including the victim’s
      mother and friend. Although [Taylor] took the stand in his
      defense, the jury did not find his testimony and explanation of
      the facts to be credible. The jury’s decision to believe all, part or
      none of the testimony of these Commonwealth witnesses and
      [Taylor] does not shock this Court’s sense of justice. As such,
      the Court concludes that the jury’s verdict does not go against
      the weight of the evidence presented at trial.

Trial Court Opinion, 9/23/2014, at 5-6 (italics in original; citations omitted).




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      We agree with the court’s well-reasoned analysis.         Taylor fails to

explain in what way the trial court abused its discretion in denying his

weight claim. Rather, his argument consists only of attacks on the credibility

of the witnesses and an assertion that the jury did not properly consider the

evidence. Accordingly, he asks this Court to reweigh the evidence; however,

we decline to do so.       As our Supreme Court has made clear, we may not

reweigh the evidence and substitute our judgment for the trial court’s

decision. See Lyons, supra. Moreover, it is well-established that the jury

is free to believe all, part, or none of the testimony presented at trial. Here,

the jury chose not to believe Taylor’s version of events.        Therefore, his

weight claim also fails.

      Nevertheless, our review of the record reveals the trial court imposed

a mandatory minimum sentence pursuant to 42 Pa.C.S. § 9718, a statute

that has been found to be constitutionally infirm in light of the United States

Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151

(U.S. 2013). See Commonwealth v. Hopkins, __ A.3d __, [98 MAP 2013]

(Pa. June 15, 2015); Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (en banc); Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.

2014) (applying Newman to Section 9718). See also Commonwealth v.

Valentine, 101 A.3d 801, 811-812 (Pa. Super. 2014) (vacating mandatory

minimum sentence imposed pursuant to 42 Pa.C.S. §§ 9712 and 9718, even

after a jury had determined triggering factors, because the unconstitutional


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subsections of the statutes were not severable from the remainder of the

statute). Although Taylor did not contest the imposition of the mandatory

minimum sentence on appeal, “a challenge to a sentence premised upon

Alleyne … implicates the legality of the sentence and cannot be waived on

appeal.”   Newman, supra, 99 A.3d at 90.          Moreover, this Court may

address the legality of a defendant’s sentence sua sponte. Commonwealth

v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc), appeal denied,

95 A.3d 277 (Pa. 2014).

      In Wolfe, supra, a panel of this Court applied the reasoning of the en

banc Court in Newman, supra, and its progeny, to conclude that the

mandatory minimum provisions in Section 9718 are facially unconstitutional.

Wolfe, supra, 106 A.3d at 805. Although the Wolfe Court recognized the

fact triggering the mandatory minimum sentence, i.e., that the victim was

less than 16 years of age, was actually “an element within the subsection of

the IDSI statute under which [the defendant] was convicted[,]” the Court

found it was, nonetheless, bound by the en banc decision in Newman,

which held “that mandatory minimum sentence statutes in Pennsylvania of

this format are void in their entirety.”      Id. at 805, 806 (emphasis in

original). The Court concluded, “[a]s Section 9718 is indistinguishable from

the statutes struck down in Newman and Valentine, we are constrained to

conclude that Section 9718 is also facially void.” Id. at 806.




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     Therefore, although we conclude the issues raised by Taylor on appeal

are meritless, we are constrained to vacate the judgment of sentence, and

remand for resentencing in light of the erroneous imposition of the

mandatory minimum sentences imposed pursuant to Section 9718.

     Judgment of sentence vacated.           Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

     Panella, J., joins the majority decision.

     Olson, J., concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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