J-S38012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

ANGEL RESTO

                            Appellant                      No. 2125 MDA 2014


        Appeal from the Judgment of Sentence of November 24, 2014
             In the Court of Common Pleas of Schuylkill County
             Criminal Division at No.: CP-54-CR-0001840-2013


BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                                     FILED JULY 14, 2015

       Angel Resto appeals his November 24, 2014 judgment of sentence,

which was imposed after Resto was convicted by a jury of rape of a child,

unlawful contact or communication with a minor, statutory sexual assault,

indecent assault, corruption of the morals of a minor, and indecent

exposure.1 Herein, Resto challenges the sufficiency of the evidence and the

legality of his sentence. We reject his sufficiency challenge, but we conclude

that his sentence was illegal.           Hence, we vacate Resto’s judgment of

sentence, and we remand for resentencing.

       The trial court set forth the facts underlying Resto’s convictions as

follows:
____________________________________________


1
     18 Pa.C.S. §§ 3121(c),               6318(a)(1),    3122.1(a)(2),   3126(a)(7),
6301(a)(1)(i), 3127(a).
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     At trial[,] the victim, KL, testified that she knew [Resto] as
     “Sketch” and had met him through friends about three to four
     weeks before the incident giving rise to the charges. During that
     time[,] she communicated with him by texting. Two weeks
     before the incident, she saw Resto at the Tamaqua train station.
     He asked her if she wanted to “chill.” She told Resto that she
     was twelve [years-old.]

     On January 4, 2013, KL and a friend were at KL’s apartment for
     a sleep over. KL, who was twelve years[-]old, lived with her
     mother, but the mother was at work, and the girls were alone.
     They were texting Resto and inviting him over. He arrived
     around 7:00 p.m. The girls met him on the front porch and led
     him up to the apartment.

     KL testified that Resto talked to the girls briefly and then told her
     he wanted to talk to her alone. He grabbed her wrist and led her
     down a hallway to her sister’s bedroom. She testified that she
     resisted a little, but his grip got tighter. Her friend stayed in the
     living room doing Facebook.

     KL’s friend called her back to the living room for help in changing
     the channel on the television.         When KL returned to the
     bedroom, [Resto] started kissing her and moving his hands over
     her body. He removed her shorts and underwear. She said she
     was trying to pull them up, but he was stronger. Resto then
     threw her on the bed, got on top of her, pulled his pants down,
     inserted his penis in her vagina and engaged in sexual
     intercourse. She said that she told him to stop several times,
     but he only stopped when his cell phone rang. He answered the
     phone, engaged in a five minute conversation and then resumed
     having intercourse with her until the phone rang again, at which
     time he stopped, pulled up his pants and talked on the phone for
     ten more minutes.

     KL got dressed and walked Resto to the door as he was leaving.
     She noticed there were blood and fluid stains on the mattress
     where she had been lying. After Resto left, KL told her friend,
     EN, that she had just had sex with Sketch.

     EN’s testimony verified that Resto was invited over and went into
     the bedroom with KL. She said that KL came out of the bedroom
     to change the music station and then returned to the bedroom.
     She described KL walking out of the bedroom with Resto, who
     left right away. KL had blood showing through her pants in her
     vaginal area and announced that she had sex with Sketch. KL

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     then took EN into the bedroom, and EN helped KL turn over the
     mattress to hide the stain.

     KL’s mother did not find out what happened until May when she
     read something on KL’s Facebook account. It was then that KL
     gave a statement to the police. Later, KL’s mom mentioned to
     the police that the mattress was still in her home with the stain.
     They went to the house in September of 2013, and found the
     mattress standing on its side against the wall with a visible stain.
     Two segments were cut out and sent to the crime lab for testing
     along with oral swabs obtained from Resto and KL.

     Corporal [Henry] Woods of the Tamaqua Police Department, who
     took KL’s statement, testified that she did not mention being
     pulled into the bedroom, telling Resto to stop or resisting. He
     also confirmed that Resto was twenty years[-]old at the time of
     the events.

     A State Police laboratory technician testified that the stains on
     both mattress segments were blood and seminal fluid.                A
     forensic DNA analyst then confirmed that the sperm fraction of
     the stains matched [Resto] and that the non-sperm fraction was
     a mixture. The major part of that mixture was a match for KL.
     Neither [Resto] nor KL could be excluded as the source of the
     minor portion. The analyst also testified that as long as the
     sample was not manipulated to add more DNA, it could remain
     intact for an indefinite period of time, especially if not exposed to
     sunlight or rain.

Trial Court Opinion (“T.C.O.”), 1/29/2015, at 2-4.

     On November 24, 2014, the trial court sentenced Resto to a

mandatory minimum ten to twenty years’ incarceration on the rape of a child

conviction pursuant to 42 Pa.C.S. § 9718(a)(3) (requiring imposition of a

mandatory minimum ten-year sentence for an offender convicted of rape of

a child pursuant to 18 Pa.C.S. § 3121(c)).     The trial court also sentenced

Resto to a consecutive term of six to twelve months’ incarceration on the

unlawful contact with a minor conviction.    All other sentences imposed by



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the trial court were ordered to run concurrent to the rape sentence. Thus, in

the aggregate, Resto was sentenced to ten years and six months to twenty-

one years in prison.

        On December 12, 2014, Resto filed a notice of appeal. On December

24, 2014, the trial court directed Resto to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          On January 9,

2015, Resto timely complied. On January 29, 2015, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a).

        Resto raises two questions for our review:

        1. Was the evidence sufficient to support convictions on the
           charges of rape of a child and statutory sexual assault?

        2. Was the ten-year mandatory minimum sentence imposed by
           the trial judge illegal?

Brief for Resto at 3.

        In his first issue, Resto challenges the sufficiency of the evidence

offered by the Commonwealth to prove him guilty of rape of a child and

statutory sexual assault. A claim challenging the sufficiency of the evidence

presents a question of law.      Commonwealth v. Widmer, 744 A.2d 745,

751 (Pa. 2000). We must determine “whether the evidence is sufficient to

prove    every   element    of   the   crime   beyond   a   reasonable   doubt.”

Commonwealth v. Hughes, 555 A.2d 1264, 1267 (Pa. 1989). We “must

view evidence in the light most favorable to the Commonwealth as the

verdict winner, and accept as true all evidence and all reasonable inferences



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therefrom upon which, if believed, the fact finder properly could have based

its verdict.” Id.

      Our Supreme Court also has instructed:

      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubts
      regarding a defendant’s guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. Moreover, in applying the above test, the entire
      record must be evaluated and all evidence actually received
      must be considered. Finally, the trier of fact while passing upon
      the credibility of witnesses and the weight of the evidence
      produced, is free to believe all, part or none of the evidence.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007).

      Of all of the charges for which he was convicted, Resto challenges only

the sufficiency of the evidence to support his convictions for rape of a child

and statutory sexual assault.   “A person commits the offense of rape of a

child, a felony of the first degree, when the person engages in sexual

intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S.

§ 3121(c). “[A] person commits [statutory sexual assault,] a felony of the

second degree[,] when that person engages in sexual intercourse with a

complainant to whom the person is not married who is under the age of 16

years and that person . . . eight years older but less than 11 years older

than the complainant.”   18 Pa.C.S. § 3122.1(a)(2).    Both offenses require

proof of sexual intercourse, which is defined by statute as follows:      “[i]n

addition to its ordinary meaning, [sexual intercourse] includes intercourse

per os or per anus, with some penetration however slight; emission is not

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required.”   18 Pa.C.S. § 3101.      Resto challenges the sexual intercourse

element of each offense, maintaining that the Commonwealth failed to

adduce sufficient evidence that sexual intercourse actually occurred between

him and KL because there was no evidence that a rape kit was performed on

KL.    Resto “claims that absent a rape kit having been performed, no

conviction for an offense requiring proof of sexual intercourse is based on

sufficient evidence.” Brief for Resto at 7.

       Resto offers no legal authority in support of his claim that a rape kit is

a prerequisite to proof beyond a reasonable doubt that sexual intercourse

occurred. Unsurprisingly, Resto offers no such authority exists, and that is

because no such authority exists. To satisfy each crime, the Commonwealth

need only prove, through direct or circumstantial evidence, that sexual

intercourse occurred.      A rape kit is but one of many ways in which the

Commonwealth may satisfy its burden. It certainly is not the only way, or

the required way.        Here, the Commonwealth introduced direct testimony

from KL that she and Resto engaged in vaginal intercourse. DNA evidence

corroborated KL’s testimony beyond a reasonable doubt. Viewed in the light

most    favorable   to   the   Commonwealth,    the   evidence   overwhelmingly

established the sexual intercourse element of both rape of a child and

statutory sexual assault. No relief is due.

       In his second issue, Resto argues that the imposition of the ten-year

mandatory minimum sentence by the trial court was illegal.           We agree.




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Resto was sentenced pursuant to 42 Pa.C.S. § 9718(a)(3), which provides

as follows:

      (a) Mandatory sentence.--

                                *       *   *

         (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.

                                *       *   *

      (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
      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)(3).

      In Alleyne v. United States, 133 S.Ct. 2151 (2013), 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, supra at 2163. In Commonwealth v. Miller,

102 A.3d 988 (Pa. Super. 2014), we presented the relevant portion of the

Alleyne Court’s rationale as follows:

      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

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     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
        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 have

systematically been declaring unconstitutional Pennsylvania’s mandatory

minimum sentencing statutes that permit a trial court, rather than a jury, to


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make the critical factual findings for sentencing.       See Commonwealth v.

Newman, 99 A.3d 86, 90 (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, 751 (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).

        Similarly, in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.

2014), we considered the constitutionality of § 9718, the statute at issue in

the case sub judice.      In Wolfe, the appellant had been sentenced to a

mandatory minimum sentence of ten to twenty years pursuant to 42 Pa.C.S.

§ 9718(a)(1), for his conviction of involuntary deviate sexual intercourse

with a person less than sixteen years-old.           Id. at 802.     The subsection

implicated the same “proof at sentencing” provision as set forth above.

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, not a jury, to make factual findings by a

preponderance of the evidence, and not beyond a reasonable doubt. Wolfe,

106 at 805.

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      Because subsection (a)(3), which was applied in the instant case,

implicates the same “proof at sentencing” provision as in Wolfe, its

application herein was unconstitutional, and illegal. Both the trial court and

the Commonwealth maintain that the “proof at sentencing” provision can be

severed from the statute, and that, because the jury found all of the

elements of rape of a child beyond a reasonable doubt, the mandatory

minimum sentence can still be applied constitutionally.       However, most

recently, our Supreme Court in Commonwealth v. Hopkins, 98 MAP 2013,

slip op. (Pa. June 15, 2015), considered the severability of the “proof at

sentencing” provision of the drug delivery in a school zone mandatory

minimum sentence that is set forth at 18 Pa.C.S. § 6317(a). In Hopkins,

the Commonwealth conceded that the mandatory sentencing provision was

unconstitutional pursuant to Alleyne, but contended that the “proof of

sentencing” provision was severable.         Our Supreme Court rejected that

argument, and held that the provision could not be severed without the

court usurping the role of the legislature and recrafting the relevant portions

of section 6317. Id. at 23.

      Notably, the language of the “proof at sentencing” provision that the

Court held to be non-severable in Hopkins is nearly identical to the “proof

at sentencing” provision contained in 42 Pa.C.S. § 9718. On the authority of

Hopkins, we reject the trial court’s and Commonwealth’s position that the

mandatory minimum sentence still can be applied without consideration of

the “proof at sentencing” provision.         As the Hopkins Court held, the

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provisions are not severable, and it is up to the General Assembly to re-

enact the mandatory provision at issue here in a constitutional manner, if it

elects to do so.

      Presently, Resto was sentenced pursuant to an unconstitutional

statute. He must be resentenced. Consequently, we vacate the judgment of

sentence, and we remand this case for resentencing without consideration of

the mandatory minimum sentencing provision at issue in this case.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




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