J-A14011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

CAPRICE DENNISON,

                            Appellant                       No. 1762 MDA 2014


       Appeal from the Judgment of Sentence Entered September 9, 2014
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002361-2012


BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                                 FILED JULY 24, 2015

        Appellant, Caprice Dennison, appeals from the judgment of sentence

of    ten (10) to twenty (20) years’ imprisonment, imposed after she was

convicted of involuntary deviate sexual intercourse, unlawful contact with a

minor, and dissemination of obscene material to minors. Appellant alleges

the verdict is against the weight of the evidence and challenges the

mandatory      minimum      sentence      of   ten   (10)   years’   imprisonment   as

unconstitutional.     After careful review, we conclude that the weight of the

evidence claim is without merit, but we remand for resentencing.

        The trial court set forth the facts of this case in the following portion of

its Rule 1925(a) opinion:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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            [A.J.], the victim in this case, testified at the bench trial.
     [A.J.] averred that [Appellant] was a friend of his mother’s and
     he had known her his whole life. There were occasions when
     [Appellant] would babysit for [A.J.] and his younger sister. The
     last time [Appellant] watched them overnight was when [A.J.]
     was fourteen (14) years old. When [A.J.’s] mom dropped them
     off at [Appellant’s] apartment building that evening, [Appellant]
     was not home yet.         When [Appellant] returned, [A.J.] was
     upstairs in the loft area, while his sister was downstairs watching
     television. [A.J.’s] sister fell asleep on the couch, and [A.J.]
     testified that he was watching TV in the loft area and [Appellant]
     had come upstairs and was on the computer. When asked what
     [Appellant] was doing on the computer, [A.J.] said that she was
     watching inappropriate videos, namely, pornography.

            [Appellant] told [A.J.] that the computer was acting
     weird/slow, so [A.J.] changed the browser for her. Afterwards,
     [Appellant] had [A.J.] go to certain websites featuring male-on-
     male pornography. [A.J.] testified that he would pull up the
     websites as asked, then would look towards the television
     instead of the computer. [Appellant] then asked [A.J.] if he
     could do some of the things portrayed in the videos, like
     masturbation. She asked him to go downstairs and get a video
     out of a DVD player, which [A.J.] did. The DVD was more male-
     on-male pornography. At [Appellant’s] request, [A.J.] began to
     masturbate while on a futon. [Appellant] began to touch [A.J.’s]
     penis and proceeded to put her mouth on it.            Afterwards,
     [Appellant] got on top of [A.J.] and started grinding, wearing
     only a T-shirt and underwear. At that point, [Appellant] asked
     [A.J.] if he wanted a toy. [A.J.] asked what she meant by that
     and [Appellant] told him to go downstairs in her drawer, get the
     toy, and bring Vaseline. [A.J.] did as he was told and discovered
     the toy was a large, fake penis. [Appellant] asked [A.J.] to put
     the Vaseline on the toy and told him to lay down. [Appellant]
     placed the toy inside of [A.J.’s] anus. [A.J.] did not recall
     exactly how long the object was inside of him, but [Appellant]
     eventually asked if he wanted her to stop, and [A.J.] said yes.
     [A.J.] testified that [Appellant] told him that once he ejaculated,
     he could go to bed. [A.J.] could not. More videos were shown,
     and [Appellant] also had [A.J.] lick her breast. [Appellant]
     eventually told [A.J.] that he could go to bed. She told him that
     what had transpired should be kept quiet and that it was private.

          [A.J.] testified that he took a shower and estimated that it
     was now close to 3:00 or 4:00 in the morning. [A.J.] went

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     upstairs afterwards, called his mother, told her what happened,
     and asked her to please come pick him up. [A.J.] packed up his
     belongings, woke his sister, took the cushions from the futon,
     and left. It was 5:00 a.m. He ran to his mom’s car and put the
     cushions in the truck, as he thought they could be used for
     evidence. [A.J.’s] mother had already called the police.

           … [A.J.’s] mother, confirmed that her son called her    that
     morning, “frantic, upset, told me something happened. He      said
     [Appellant] … did things to him and I needed to come get      him
     right away.” “He sounded scared, shaking, nervous. He         was
     talking fast. I knew something was wrong.”

          [Appellant] testified at the bench trial and denied any
     wrongdoing, and denied owning the toy described by [A.J.]. The
     defense also called character witnesses on [Appellant’s] behalf.

Trial Court Opinion (TCO), dated 3/3/15, at 3-5 (citations omitted).

     At the conclusion of the bench trial, Appellant was found guilty of all

charges and was sentenced on September 9, 2014, as follows:        Count 1 -

involuntary deviate sexual intercourse (18 Pa.C.S. § 3123(a)(7)) - ten (10)

to twenty (20) years’ imprisonment; Count 2 - involuntary deviate sexual

intercourse (18 Pa.C.S. § 3123(a)(7)) - ten (10) to twenty (20) years’

imprisonment (concurrent with Count 1); Count 3 - involuntary deviate

sexual intercourse (18 Pa.C.S. § 3123(a)(7)) – no further sentence; Count 4

- unlawful contact with a minor (18 Pa.C.S. § 6318(a)(1)) – sixty (60)

months’ probation (consecutive to Count 1); Count 5 - corruption of minors

(18 Pa.C.S. § 6301(1)(ii)) – sixty (60) months’ probation (concurrent with

Count 4); and Count 6 - dissemination of obscene material to minors (18

Pa.C.S. § 5903(c)(1)) – sixty (60) months’ probation (concurrent with Count

4). TCO, at 1.




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      On September 18, 2014, Appellant filed a post-sentence motion,

preserving her weight of the evidence claim; however, said motion was

denied. On October 17, 2014, Appellant filed a notice of appeal, followed by

a timely 1925(b) Statement of Errors Complained of on Appeal. Appellant

now presents the following issues for our review:

      I.    Whether the trial court illegally sentenced Appellant to a
            mandatory minimum sentence of ten (10) years’
            imprisonment for indecent assault of a child under sixteen
            years pursuant to 42 Pa.C.S. § 9718(a)(1) where the
            statute at issue – 42 Pa. C.S. § 9718 – is unconstitutional
            as a whole since it violates Appellant’s right to a jury trial
            under Article I, Section IX of the Pennsylvania Constitution
            and the Sixth Amendment to the United States
            Constitution?

      II.   Whether the trial court erred in denying Appellant’s Post-
            Sentence Motion where the verdict was against the weight
            of the evidence so as to shock one’s sense of justice where
            Appellant was never shown to have engaged in the acts
            which constitute the crimes of which she was convicted?

Appellant’s Brief, at 5.

      We will first address Appellant’s weight of the evidence claim.        It is

well settled that:

      [a] claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury’s verdict is so contrary to the evidence that it shocks
      one’s sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted


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      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Here, the trial court listened to testimony given by both the victim and

Appellant and determined the victim’s testimony to be credible. TCO, at 5.

“On issues of credibility and weight of the evidence, an appellate court

defers to the findings of the trial judge, who has had the opportunity to

observe the proceedings and demeanor of the witnesses.” Commonwealth

v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002). After reviewing all

of the evidence presented at trial and taking into consideration the

witnesses’ testimony, the trial court concluded that the Commonwealth

proved each and every element of the crimes charged in Counts 1 through 6.

Accordingly, the court found Appellant guilty on all 6 counts. TCO, at 5. We

ascertain no abuse of discretion in the trial court’s denial of Appellant’s

challenge to the weight of the evidence in these circumstances, and

therefore, conclude said claim is without merit.

      Next, we note our standard of review of questions involving the

legality of a sentence:

      A challenge to the legality of a sentence … may be entertained
      as long as the reviewing court has jurisdiction. It is also well-
      established that [i]f no statutory authorization exists for a
      particular sentence, that sentence is illegal and subject to
      correction. An illegal sentence must be vacated. Issues relating
      to the legality of a sentence are questions of law[.] … Our
      standard of review over such questions is de novo and our scope
      of review is plenary.


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Commonwealth v. Wolfe, 106 A.3d 800, 801-802 (Pa. Super. 2014)

(citations and quotation marks omitted).

        Here, Appellant claims that the trial court illegally sentenced her to a

mandatory minimum sentence of ten years’ imprisonment for indecent

assault of a child under sixteen years pursuant to 42 Pa.C.S. § 9718(a)(1). 1

Appellant requests that this Court vacate her judgment of sentence and

remand for resentencing without consideration of any mandatory minimum

sentence. Appellant’s Brief, at 14. The Commonwealth has no objection to

this case being remanded for the limited purpose               of resentencing.

Appellee’s Brief, at 7. The trial court concurs. TCO, at 10.

        In Alleyne v. United States, 133 S.Ct. 2151 (2013), the Supreme

Court held that, “facts that increase mandatory minimum sentences must be

submitted to the jury” and must be found beyond a reasonable doubt. Id.

____________________________________________


1
    Section 9718(a)(1) provides:

        § 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.

42 Pa.C.S. § 9718.



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at 2163. Subsequently, this Court struck down statutes imposing mandatory

minimum      sentences      as   unconstitutional   in   light   of    Alleyne.2       In

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

defendant appealed from an aggregate judgment of sentence of ten (10) to

twenty (20) years’ imprisonment, imposed after he was found guilty of

multiple counts of involuntary deviate sexual intercourse, unlawful contact

with a minor,        statutory sexual assault, and corruption of minors, we

specifically addressed the constitutionality of the mandatory minimum

sentencing provision in 42 Pa.C.S. § 9718, the same statute being

challenged in the present case.          Following the decisions in Newman and

Valentine,      we    concluded     in   Wolfe    that   Section      9718   is   facially

unconstitutional. Wolfe, 106 A.3d at 805. Accordingly, we are compelled to

conclude that the trial court imposed an illegal sentence in this case when it

imposed the mandatory minimum sentence set forth in Section 9718.

       Judgment of sentence vacated.             Case remanded for resentencing

without the application of the Section 9718 mandatory minimum, consistent

with this memorandum. Jurisdiction relinquished.



____________________________________________


2
  See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
(concluding the appellant’s sentence was illegal and striking down 42 Pa.C.S.
§ 9712.1 as unconstitutional). See also Commonwealth v. Valentine,
101 A.3d 801 (Pa. Super. 2014) (vacating the judgment of sentence and
remanding for resentencing without the applicable mandatory minimum
sentences).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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