J-A22042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANGEL L. MARTINEZ

                            Appellant               No. 1994 MDA 2015


            Appeal from the Judgment of Sentence March 27, 2014
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0001838-2013;
             CP-67-CR-0001839-2013; CP-67-CR-0002199-2012


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED OCTOBER 14, 2016

       Appellant, Angel L. Martinez, appeals nunc pro tunc from the judgment

of sentence entered in the York County Court of Common Pleas, following his

jury trial convictions of three counts each of unlawful contact with a minor

and sexual assault, two counts each of aggravated indecent assault of a

child, indecent assault of a child less than 13, and incest, and one count

each of rape of a child, rape by forcible compulsion, involuntary deviate

sexual intercourse (“IDSI”) with a child, corruption of a minor, terroristic

threats, and indecent assault without consent.1    We affirm the convictions

but vacate the judgment of sentence and remand for re-sentencing.
____________________________________________


1
 18 Pa.C.S.A. §§ 6318(a)(1); 3124.1; 3125(b); 3126(a)(7); 4302; 3121(c);
3121(a)(1); 3123(b); 6301(a)(1); 2706(a)(1); and 3126(a)(1), respectively.
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      The relevant facts and procedural history of this case can be briefly

summarized as follows.        The Commonwealth charged Appellant with

numerous offenses in three separate actions, which the court consolidated,

arising from his sexual abuse of his three minor daughters. On December

12, 2013, a jury convicted Appellant of rape of a child, rape by forcible

compulsion, IDSI with a child, aggravated indecent assault of a child, incest,

sexual assault, and related offenses.         On March 27, 2014, the court

sentenced   Appellant   to   an   aggregate   term   of   81½   to   163   years’

imprisonment, which included some mandatory minimum terms pursuant to

42 Pa.C.S.A. § 9718. Appellant timely filed a post-sentence motion on April

7, 2014. In his post-sentence motion, Appellant requested credit for time

served, challenged the weight of the evidence, and objected to the

imposition of mandatory minimum sentences in light of Alleyne v. United

States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). On June 9,

2014, the court granted Appellant’s motion in part only to credit Appellant

for time served.

      Appellant filed a timely notice of appeal on July 3, 2014. On March 10,

2015, this Court dismissed the appeal for counsel’s failure to file a brief. On

August 12, 2015, Appellant filed a motion for a new trial, which the PCRA

court treated as Appellant’s first PCRA petition. The PCRA court reinstated

Appellant’s direct appeal rights on October 26, 2015. Appellant filed a timely

notice of appeal nunc pro tunc on November 12, 2015. On November 24,


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2015, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b); and Appellant

timely complied on December 21, 2015.

      Appellant raises two issues for our review:

         WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF
         THE EVIDENCE TO THE POINT THAT THE VERDICT
         SHOCKS ONE’S SENSE OF JUSTICE?

         WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
         DISCRETION IN DENYING [APPELLANT’S] MOTION FOR
         POST-SENTENCE RELIEF IN WHICH [APPELLANT] RAISED
         HIS OBJECTION TO THE IMPOSITION OF THE MANDATORY
         SENTENCES IMPOSED BY THE TRIAL COURT AT THE TIME
         OF [APPELLANT’S] SENTENCING WHICH [APPELLANT]
         BELIEVES [IS] IN VIOLATION OF ALLEYNE?

(Appellant’s Brief at 4).

      In his first issue, Appellant argues his three daughters’ testimony

indicated none of the daughters recalled when the sexual assaults occurred

and details about the assaults.   Appellant submits his daughters said they

had not discussed the sexual assaults with each other. Appellant asserts his

daughters’ descriptions of the assaults were general and identical, which

suggests his daughters had an ulterior motive to allege Appellant committed

the charged offenses. Appellant claims his brother also testified that he did

not see or hear any inappropriate behavior when Appellant’s daughters

visited during the 3½ years Appellant and his brother lived together.

Appellant maintains the trial court abused its discretion when it denied relief




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on Appellant’s challenge to the weight of the evidence. Appellant concludes

this Court should reverse and discharge Appellant. We disagree.

      Our standard of review for a challenge to the weight of the evidence is

as follows:

         The weight of the evidence is exclusively for the finder of
         fact who is free to believe all, part, or none of the evidence
         and to determine the credibility of the witnesses. An
         appellate court cannot substitute its judgment for that of
         the finder of fact. Thus, we may only reverse the lower
         court’s verdict if it is so contrary to the evidence as to
         shock one’s sense of justice. Moreover, where the trial
         court has ruled on the weight claim below, an appellate
         court’s role is not to consider the underlying question of
         whether the verdict is against the weight of the evidence.
         Rather, appellate review is limited to whether the trial
         court palpably abused its discretion in ruling on the weight
         claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted).   “[C]redibility determinations are made by the

fact finder and…challenges thereto go to the weight, and not the sufficiency,

of the evidence.”     Commonwealth v. Gaskins, 692 A.2d 224, 227

(Pa.Super. 1997).     See also Commonwealth v. Griffin, 65 A.3d 932

(Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (stating

defendant’s claim he was wrongly identified as perpetrator of crimes based

on “unbelievable identification testimony” went to witness’ credibility and

challenged weight, not sufficiency, of evidence). The remedy for a challenge

to the weight of the evidence is a new trial. See, e.g., Commonwealth v.


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Smith, 853 A.2d 1020 (Pa.Super. 2004) (explaining remedy for challenges

to sufficiency of evidence is judgment of acquittal; remedy for challenges to

weight of evidence is new trial).

      Instantly, the trial court reasoned as follows regarding Appellant’s

weight challenge:

         The trial judge determined that the verdict was supported
         by the evidence by denying [Appellant]’s post-sentence
         motion on June 9, 2014.           We see no error in this
         determination. The jury in these three cases heard from
         the three victims, Detective Kyle Hower, and [Appellant]’s
         witness, his brother. The jury being the fact-finder was
         “free to believe all, part, or none of the evidence to
         determine the credibility of the witnesses.” After hearing
         all the testimony and weighing the evidence and
         witnesses[’] credibility, the jury found [Appellant] guilty on
         all charges. We do not find this verdict shocked the
         conscience and find it was in-fact supported by the
         evidence. The court therefore disagrees that the verdict
         was against the weight of the evidence.

(Trial Court Opinion, filed February 5, 2016, at 4) (internal footnote

omitted). The record supports the trial court’s reasoning. Thus, we see no

reason to disturb the court’s decision to deny relief on Appellant’s challenge

to the weight of the evidence. See Champney, supra.

      In his second issue, Appellant argues 42 Pa.C.S.A. § 9718 is

unconstitutional    pursuant   to   Alleyne   and   its   Pennsylvania    progeny.

Appellant maintains his mandatory minimum sentences under Section 9718

are illegal.   Appellant concludes this Court should vacate the judgment of

sentence and remand for re-sentencing. We agree.

      In Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186

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L.Ed.2d 314 (2013), the United States Supreme Court held that any fact

increasing the mandatory minimum sentence for a crime is considered an

element of the crime to be submitted to the fact-finder and found beyond a

reasonable doubt.        Alleyne, supra.         The Pennsylvania Supreme Court

recently addressed the constitutionality of Section 9718 in light of Alleyne

in Commonwealth v. Wolfe, ___ Pa. ___, 140 A.3d 651 (June 20, 2016).2

Wolfe observed “Section 9718 does plainly and explicitly require judicial

fact-finding in its subsection (c). Moreover, since subsection (c) is integral

to the statute, Section 9718(a) does not stand alone.”          Wolfe, supra at

___, 140 A.3d at 660-61 (internal citations omitted).           The Court noted

Section 9718(c) still required the sentencing court to determine a victim’s

age at sentencing to impose sentences for offenses under Section 9718(a),

even though the fact-finder might have already decided the victim’s age

when it reached a verdict.           Id. at ___, 140 A.3d at 661.    Relying on
____________________________________________


2
  At the time of Appellant’s sentencing, Section 9718 established mandatory
minimum terms for offenses committed against minors less than 16 years of
age. For example, Section 9718 in relevant part required several mandatory
minimum sentences, including: 10 years’ imprisonment for rape; 10 years’
imprisonment for IDSI; and 5 years’ imprisonment for aggravated indecent
assault. 42 Pa.C.S.A. § 9718(a)(1). Section 9718 also established relevant
mandatory minimum sentences without express reference to the victim’s age
for several offenses, including: 15 years’ imprisonment for rape of a child; 5
years’ imprisonment for aggravated indecent assault of a child less than 13
years old; and 10 years’ imprisonment for aggravated indecent assault of a
child. 42 Pa.C.S.A. § 9718(a)(3). Section 9718(c) stated provisions of
Section 9718 shall not be an element of the crime, and the court shall
determine their applicability by a preponderance of the evidence at
sentencing. 42 Pa.C.S.A. § 9718(c).



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Alleyne, Wolfe held that Section 9718 could no longer pass constitutional

muster as it created a “distinct and aggravated crime” because the “statute’s

directive    for   judicial    fact-finding   attaches   to   that   aggravated   crime

notwithstanding a jury verdict; and that sentencing judges are not free to

disregard such explicit legislative mandates by substituting their own

procedures.”       Id. (quoting Alleyne, supra). Wolfe further held the non-

offending provisions of Section 9718 were not severable, and the statute

was unconstitutional and void in its entirety. Id. at ___, 140 A.3d at 661-

63.

        Instantly, the trial court sentenced Appellant to mandatory minimum

terms of incarceration for several of his convictions, pursuant to Section

9718.     Under Wolfe, Appellant is entitled to a remand for re-sentencing

without     application   of    any   unlawful      mandatory   minimum     sentences.

Accordingly, we affirm Appellant’s convictions, but we vacate the judgment

of sentence in its entirety and remand for re-sentencing without imposition

of mandatory minimum terms. See Commonwealth v. Bartrug, 732 A.2d

1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999)

(holding sentencing error in multi-count case normally requires appellate

court to vacate entire judgment of sentence so trial court can restructure its

sentencing plan on remand).

        Judgment of sentence vacated; case remanded for re-sentencing.

Jurisdiction is relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2016




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