J-S41040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

JAMES ANTHONY ELIA,

                            Appellee                 No. 3403 EDA 2015


                  Appeal from the PCRA Order October 8, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0009201-2010

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED MAY 18, 2016

        The Commonwealth of Pennsylvania appeals the order of the Court of

Common Pleas of Montgomery County granting Appellee James Anthony

Elia’s petition under the Post Conviction Relief Act1 and vacating his sentence

based on the decisions in Alleyne v. U.S., 133 S.Ct. 2151 (2013) and

Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), appeal

granted, 121 A.3d 433 (Pa. August 12, 2015). For the foregoing reasons,

we are constrained to affirm.

        On February 14, 2011, Appellee was charged with several counts of

Involuntary Deviate Sexual Intercourse (IDSI) involving a child less than 16

years of age, Statutory Sexual Assault, Aggravated Indecent Assault

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.



*Former Justice specially assigned to the Superior Court.
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involving a person less than 16 years of age, Corruption of Minors, Indecent

Assault of a person less than 16 years of age, and Unlawful Contact or

Communication with a Minor.2

       Initially, Appellee pled guilty to one count each of IDSI and Statutory

Sexual Assault, but later was permitted to withdraw his guilty plea. Appellee

waived his right to a jury trial and proceeded to a bench trial. On January

19, 2012, the trial court convicted Appellee of one count each of IDSI

involving a child less than 16 years of age, Statutory Sexual Assault,

Aggravated Indecent Assault involving a person less than 16 years of age,

Corruption of Minors, Indecent Assault of a person less than 16 years of age,

and Unlawful Contact or Communication with a Minor.

       On May 19, 2012, the Commonwealth notified Appellee of its intention

to seek the ten year mandatory minimum sentence for the IDSI count under

42 Pa.C.S. § 9718(a)(1) (“Sentences for offenses against infant persons”).

On April 25, 2012, Appellee was sentenced to ten to twenty years

imprisonment.      Appellee filed a post-sentence motion, claiming inter alia,

that his mandatory minimum sentence was unconstitutional. After the trial

court denied his motion, Appellee filed a timely appeal. On December 24,

2013, this Court affirmed Appellee’s judgment of sentence, and the Supreme

Court denied Appellee’s Petition for Allowance of Appeal on July 1, 2014.

____________________________________________


2
  18 Pa.C.S. §§ 3123(a)(7), 3122.1, 3125(a)(8), 6301(a)(1), 3126(a)(8),
and 6318(a)(1), respectively.



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     On August 15, 2014, Appellee filed a timely PCRA petition.            On

September 15, 2015, Appellee amended his petition to include a challenge

the legality of his sentence under the decision in Alleyne, in which the

Supreme Court of the United States held that “facts that increase mandatory

minimum sentences must be submitted to the jury” and must be found

beyond a reasonable doubt.      Alleyne, 133 S.Ct. at 2163.       Following a

hearing, the PCRA court granted Appellee’s petition based on the Alleyne

claim and vacated his sentence. The Commonwealth filed this timely appeal

and complied with the PCRA court’s direction to file a concise statement of

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

     The Commonwealth argues that the PCRA court erred in finding that

the imposition of the mandatory minimum sentence under Section 9718 was

unconstitutional. Section 9718 states in relevant part:

     § 9718. Sentences for offenses against infant persons

     (a) Mandatory sentence.—
     (1) A person convicted of the following offenses when the victim
     is less than 16 years of age shall be sentenced to a mandatory
     term of imprisonment as follows:
                                    ***
     18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
     intercourse)--not less than ten years.
                                    ***
     (b) Eligibility for parole.--Parole shall not be granted until the
     minimum term of imprisonment has been served.
     (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

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      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.

      The Commonwealth contends that the application of the mandatory

minimum sentence in Section 9718 does not offend Alleyne as the operative

fact triggering the application of the mandatory minimum – that the victim

was less than sixteen years old – was found by the trier of fact beyond a

reasonable doubt. The Commonwealth notes that it was required to prove

this fact as an element of the offense of IDSI under Section 3123(a)(7),

which provides that a person commits a felony of the first degree when he

“engages in deviate sexual intercourse with a complainant … who is less than

16 years of age and the person is four or more years older than the

complainant.” 18 Pa.C.S. § 3123(a)(7).

      However, the Commonwealth concedes that this case is controlled by

this Court’s decision in Wolfe, in which a three-judge panel determined that

the holding in Alleyne rendered Section 9718 void in its entirety, finding the

statutory language permitting the facts triggering the mandatory minimum

to be determined at sentencing by a preponderance of the evidence was not

severable from the remaining provisions. The panel in Wolfe relied on the

en banc decision in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (en banc) for the proposition that “mandatory minimum sentencing




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statutes in Pennsylvania of this format are void in their entirety.”      Wolfe,

106 A.3d at 805-806.

       Nevertheless, the Commonwealth argues that Wolfe was wrongly

decided and should be overruled.3              The Commonwealth distinguishes the

statutes in this case and in Wolfe (Section 9718) from those applied in

Alleyne and Newman, where the triggering facts for the mandatory

minimum were not elements of the offenses in the Crimes Code, but were

solely set forth in the sentencing statutes. The Commonwealth points out

that our Supreme Court granted allowance of appeal in Wolfe and decided

to review the case on an expedited schedule to consider “[w]hether the

Superior Court of Pennsylvania's sua sponte determination that the ten year

mandatory minimum sentence for involuntary deviate sexual intercourse

(Person less than 16 years) imposed pursuant to 42 Pa.C.S.A. § 9718(a)(1)

is facially unconstitutional is erroneous as a matter of law[.]” Wolfe, 121

A.3d at 434.

       Although the holding in Wolfe has been called into question by the

Supreme Court’s decision to grant further review of that decision, Wolfe is

binding precedent unless and until reversed by the Supreme Court.            See

Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (noting that
____________________________________________


3
  See also Wolfe, 106 A.3d at 807 (Bowes, J., concurring) (contending that
this Court’s decision in Newman was erroneous as the burden of proof
provision of § 9178 should be deemed severable from the remainder of the
statute).



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one panel of the Superior Court is not empowered to overrule another panel

of the Superior Court).   Accordingly, as the relevant facts and contested

issue in this case are identical to those in Wolfe, we have no choice but to

uphold the PCRA court’s decision to vacate Appellee’s sentence as

unconstitutional.

      Order affirmed. Remand to the trial court for resentencing consistent

with the PCRA court opinion. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2016




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