J-S37006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANTHONY MCCAULEY

                            Appellant                No. 380 WDA 2015


           Appeal from the Judgment of Sentence February 3, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003188-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED MAY 17, 2016

       Appellant, Anthony McCauley, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his jury

trial convictions for rape of a child, involuntary deviate sexual intercourse

(“IDSI”) with a child, statutory sexual assault, unlawful contact with a minor,

unlawful restraint of a minor, indecent assault, corruption of minors, and

endangering welfare of children (“EWOC”).1      We affirm the convictions but

vacate the judgment of sentence and remand with instructions.

       The relevant facts and procedural history of this appeal are as follows.

Appellant entered into a relationship with the victim’s mother, J.S., when the

____________________________________________


1
  18 Pa.C.S.A. §§ 3121(c), 3123(b), 3122.1(b), 6318(a)(1), 2902(b)(2),
3126(a)(7), 6301(a)(1)(i) and (a)(1)(ii), 4304(a)(1), respectively.
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victim was approximately four years old. Appellant, J.S., the victim, and the

victim’s brother lived together for the next eight or nine years. When the

victim was six or seven years old, Appellant began to have sexual contact

with her.     At first, Appellant digitally penetrated the victim’s vagina.       The

encounters soon escalated, and Appellant started having vaginal and oral

intercourse with the victim. The abuse culminated in August 2013 when the

victim was twelve years old.       In the most recent incident, the victim was

sitting on the couch watching television in the living room when Appellant

approached her and pulled her to the edge of the couch.              Appellant then

removed the victim’s pants, held her hands above her head, and had vaginal

intercourse with her.      Afterward, Appellant placed twenty dollars on the

table.    The next day, the victim called her grandmother, B.P., and said,

“Grandma, I can’t take no more. Can you please come and get me?” B.P.

drove to the house and picked up the victim, who was upset and crying.

B.P. subsequently notified the police. The victim lived with B.P. for several

months before moving in with the victim’s father.

         A jury convicted Appellant of one (1) count each of rape of a child,

IDSI with a child, statutory sexual assault, unlawful contact with a minor,

unlawful restraint of a minor, indecent assault, and EWOC, and two (2)

counts of corruption of minors. On February 3, 2015, the court sentenced

Appellant     to   consecutive   terms   of   ten   (10)   to   twenty   (20)   years’

incarceration for the rape and IDSI convictions.            The court imposed no


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further penalty for the remaining counts. Appellant filed a timely notice of

appeal on March 5, 2015.      The court ordered Appellant to file a concise

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

After the court granted an extension, Appellant timely complied.

      Appellant raises the following issues for our review, which we have

reordered for purposes of disposition:

            WAS THE EVIDENCE UPON WHICH THE JURY RELIED IN
            FINDING [APPELLANT] GUILTY AT COUNTS 1 THROUGH 9,
            SO UNRELIABLE AND CONTRADICTORY THAT IT WAS
            INCAPABLE OF SUPPORTING THE VERDICTS, AND
            THEREFORE, WAS INSUFFICIENT AS A MATTER OF LAW?

            DID THE TRIAL COURT ERR IN SENTENCING [APPELLANT]
            TO THE MANDATORY MINIMUM SENTENCE AT COUNTS 1
            AND 2 PURSUANT [TO] 42 PA.C.S.A. § 9718, BECAUSE
            THAT   STATUTE     HAS   BEEN   FOUND    TO    BE
            UNCONSTITUTIONAL AND THEREFORE, [APPELLANT’S]
            SENTENCE IS ILLEGAL?

(Appellant’s Brief at 5).

      In his first issue, Appellant argues numerous Commonwealth witnesses

gave inconsistent, false, or unreliable testimony throughout trial. Appellant

contends the victim’s testimony was internally inconsistent with respect to

when and where the abuse began and whether she screamed during the last

incident.    Appellant asserts the testimony of the victim’s cousin that she

spoke to the victim about the abuse was not credible because the victim’s

cousin did not say anything to the police until two-and-a-half years after

Appellant was arrested.     Appellant submits the testimony of the victim’s

cousin also contradicted the victim’s statement that she had only told one

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person about the assaults before she ultimately informed her grandmother.

Appellant claims the police investigation was flawed, emphasizing the failure

of the police to collect physical evidence from the scene. Appellant avers the

victim and B.P. disregarded police instructions not to discuss the incidents

prior to the victim’s forensic interview, which tainted the testimony of the

victim and other Commonwealth witnesses. Appellant maintains the victim

falsely testified that she had followed police instructions not to discuss the

incidents with anyone.     Appellant contends the victim was motivated to

fabricate the allegations because of her desire to move out of the house and

live   with her   grandmother.     Appellant concludes the       evidence   was

insufficient to support his convictions because the testimony of the

Commonwealth witnesses was so unreliable and contradictory as to make

the jury’s verdict a result of pure conjecture. We disagree.

       The following principles of review apply to a challenge to the

sufficiency of evidence:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.            In
         addition, we note that the 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. The Commonwealth may sustain

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        its burden of proving every element of the crime beyond a
        reasonable doubt by means of wholly circumstantial
        evidence. Moreover, in applying the above test, the entire
        record must be evaluated and all evidence actually
        received must be considered. Finally, the [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)). Challenges to witness credibility generally implicate the weight, not

the sufficiency, of the evidence. See Commonwealth v. Price, 616 A.2d

681, 683 (Pa.Super. 1992) (explaining sufficiency challenge asks whether

evidence exists on record to support conviction, whereas argument that

witness’ account is not credible goes to weight). Nevertheless,

        [I]n those extreme situations where witness testimony is
        so inherently unreliable and contradictory that it makes the
        jury’s choice to believe that evidence an exercise of pure
        conjecture, any conviction based on that evidence may be
        reversed on the grounds of evidentiary insufficiency, since
        no reasonable jury could rely on such evidence to find all
        of the essential elements of the crime proven beyond a
        reasonable doubt.

Commonwealth v. Brown, 617 Pa. 107, 136 n.18, 52 A.3d 1139, 1156

n.18 (2012). “[T]he uncorroborated testimony of a rape victim, if believed

by the jury, is sufficient to support a rape conviction and no medical

testimony is needed to corroborate a victim’s testimony if the testimony was

rendered credible by the jury.” Commonwealth v. Poindexter, 646 A.2d

1211, 1214 (Pa.Super. 1994), appeal denied, 540 Pa. 580, 655 A.2d 512


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(1995).

     Instantly, the trial court reasoned as follows:

          [T]he evidence presented at trial established that since she
          was four (4) years old, [the victim] lived with her mother,
          [Appellant,] and [the victim’s] younger brother…first on
          Becks Run Road and then in the Sharpsburg area.
          Beginning when [the victim] was seven (7) years old and
          continuing until she was 12 years old, [Appellant]
          repeatedly had oral and vaginal sex with her in various
          rooms of the house. On the last occasion, when [the
          victim] was 12, [Appellant] gave her $20 after having
          intercourse with her. The next day, [the victim] called her
          grandmother, …who picked up [the victim] from the home
          and then called the police to report the assaults.

          It is clear from a review of the record that the evidence
          was more than sufficient to establish [Appellant’s]
          improper physical contact with [the victim]. [The victim’s]
          testimony clearly established multiple incidents of oral and
          vaginal sexual intercourse, and the jury clearly found her
          testimony to be credible. The lack of physical evidence is
          not demonstrative of [Appellant’s] innocence, but rather is
          only reflective of the fact that too much time had elapsed
          between the incidents and the report for any forensic
          evidence to be recovered.          [The victim’s] testimony
          credibly established multiple incidents of improper contact
          and was clearly sufficient to support [Appellant’s]
          convictions at all counts.

(Trial Court Opinion, filed September 22, 2015, at 6). The record supports

the court’s analysis. Appellant mischaracterizes some of the trial testimony.

The victim’s cousin testified that she had witnessed “weird” interactions

between Appellant and the victim, including the manner in which Appellant

bathed the victim on one occasion. The victim’s cousin also testified vaguely

that the victim had mentioned “some things” regarding Appellant when the

victim was eight or nine years old.    The victim’s cousin, however, did not

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directly contradict the victim’s testimony that she had not told anybody

except a friend about the actual sexual abuse until after the last incident.

Additionally, the jury was not required to discredit all of the victim’s

testimony because she had discussed the incidents prior to the forensic

interview, even though a detective had advised her not to do so. Likewise,

the victim’s inability to remember every peripheral detail of the abuse, such

as exactly when and where it started years earlier or how many times she

screamed during the last incident, was not fatal in light of the victim’s

otherwise consistent testimony. Appellant brought these credibility issues to

the jury’s attention during cross-examination.        Appellant simply disagrees

with the jury’s credibility determinations.   This case does not present the

rare and “extreme” situation where “witness testimony is so inherently

unreliable and contradictory that it makes the jury’s choice to believe that

evidence an exercise of pure conjecture.” See Brown, supra. Therefore,

Appellant’s sufficiency challenge merits no relief.

      In his second issue, Appellant argues the court imposed mandatory

minimum sentences under 42 Pa.C.S.A. § 9718 for his rape and IDSI

convictions. Appellant contends Section 9718 is unconstitutional and void in

its entirety pursuant to Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super.

2014).    Appellant concludes this Court should vacate the judgment of

sentence and remand for resentencing.         We agree that resentencing is

necessary if the court actually applied Section 9718.


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     Section 9718(a)(1) sets forth a mandatory minimum sentence of ten

(10) years’ imprisonment where a defendant is convicted of IDSI involving a

victim who is less than sixteen (16) years of age.       Section 9718(a)(3)

establishes a mandatory minimum sentence of ten (10) years’ imprisonment

where a defendant is convicted of rape of a child.   Section 9718(c) states

these statutory provisions shall not be an element of the crime and

applicability of the statute shall be determined at sentencing by a

preponderance of the evidence. 42 Pa.C.S.A. § 9718(c).

     Recently, this Court directly addressed the constitutionality of Section

9718 in Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), where

the trial court had imposed mandatory minimum sentences for multiple IDSI

convictions, pursuant to Section 9718(a)(1).   On appeal, this Court struck

down Section 9718 as facially unconstitutional.      Id. (citing Alleyne v.

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

Alleyne is applicable to all criminal cases pending on direct review.

Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).

     Instantly, before sentencing, the Commonwealth filed notice of its

intent to seek mandatory minimum sentences for Appellant’s rape and IDSI

charges, pursuant to Section 9718.        At the sentencing hearing, the

Commonwealth reminded the court of the filed notice.             Appellant’s

consecutive sentences of ten (10) to twenty (20) years’ incarceration for

rape and IDSI were consistent with the minimum terms mandated by


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Section 9718.     In its Rule 1925(a) opinion, the court did not dispute

Appellant’s contention that the court had applied Section 9718. Given this

Court’s binding decision in Wolfe, any application of Section 9718 would

have been unlawful. The court’s oral pronouncement of sentence, however,

did not refer to the imposition of any mandatory minimum term. Likewise,

the   written   sentencing      order,   guideline   sentence   forms,   and   court

commitment form do not indicate that a mandatory minimum sentence was

imposed.    Thus, the certified record is inconsistent on whether the court

actually applied Section 9718 when it sentenced Appellant.           Therefore, we

affirm Appellant’s convictions, but vacate the judgment of sentence and

remand the matter to the trial court to clarify whether Appellant was

sentenced pursuant to the mandatory provisions of Section 9718, and, if

necessary, to resentence Appellant without imposition of a mandatory

minimum term. If Section 9718 was not applied, the court shall re-impose

Appellant’s original sentence. Accordingly, we affirm Appellant’s convictions

but vacate the judgment of sentence and remand with instructions.

      Judgment of sentence vacated; case remanded with instructions.

Jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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