J-S44004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ALBERT BALDISH

                            Appellant              No. 582 WDA 2014


             Appeal from the Judgment of Sentence March 6, 2014
               in the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0000569-2012


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 16, 2015

        Appellant Albert Baldish appeals from the judgment of sentence

entered in the Cambria County Court of Common Pleas following his jury

trial conviction for two counts of aggravated indecent assault of a person

less than fourteen years of age,1 two counts of aggravated indecent assault

of a person less than thirteen years of age,2 three counts of aggravated

indecent assault of a person less than sixteen years of age,3 two counts of

indecent assault of a person less than fourteen years of age,4 two counts of

____________________________________________


1
    18 Pa.C.S. § 3125(a)(6).
2
    18 Pa.C.S. § 3125(a)(7).
3
    18 Pa.C.S. § 3125(a)(8).
4
    18 Pa.C.S. § 3126(a)(6).
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indecent assault of a person less than thirteen years of age,5 three counts of

indecent assault of a person less than sixteen years of age,6 seven counts of

corruption of minors,7 ten counts of rape by threat of forcible compulsion,8

five counts of involuntary deviate sexual intercourse by forcible compulsion,9

five counts of involuntary deviate sexual intercourse by threat of forcible

compulsion,10 five counts of incest,11 and five counts of statutory sexual

assault.12    We affirm Appellant’s convictions, but vacate his judgment of

sentence and remand for resentencing.

        The tragic but straightforward facts of this matter are as follows. In

September of 2011, Appellant’s daughter revealed to police detectives that

Appellant had forced her to engage in sexual acts with him on a weekly basis

throughout the 1990s.13 Police filed a criminal complaint alleging the above-
____________________________________________


5
    18 Pa.C.S. § 3126(a)(7).
6
    18 Pa.C.S. § 3126(a)(8).
7
    18 Pa.C.S. § 6301(a)(1).
8
    18 Pa.C.S. § 3121(a)(2).
9
    18 Pa.C.S. § 3123(a)(1).
10
     18 Pa.C.S. § 3123(a)(2).
11
     18 Pa.C.S. § 4302.
12
     18 Pa.C.S. § 3122.1.
13
   The Commonwealth charged Appellant with only one count of aggravated
indecent assault and one count of indecent assault per year, with a crime
(Footnote Continued Next Page)


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referenced crimes. Following a trial conducted in mid-August 2013, the jury

convicted Appellant as indicated supra. On March 6, 2014, the trial court

sentenced Appellant to an aggregate term of 35 to 70 years of incarceration.

On March 17, 2014, Appellant filed a timely 14 post-sentence motion for a

new trial based on the weight of the evidence.     The trial court denied the

post-trial motion on March 26, 2014, and Appellant timely appealed on April

8, 2014.

      Appellant raises the following claims for our review:

      I.   The trial court erred in allowing the Commonwealth to
      introduce prejudicial Pa.R.E. 404(b) evidence under the guise of
      a prior inconsistent statement.

      II. The jury’s verdict was against the weight of the evidence, as
      the Commonwealth’s case was wholly premised on a
      complainant’s uncorroborated and impeached testimony that was
      contradicted by every other witness who testified at trial.
                       _______________________
(Footnote Continued)

date of December 31st for each year. The previous versions of 18 Pa.C.S. §§
3125 & 3126 prohibited contact between complainants under the age of 14
and defendants over the age of 18. See 1990 P.L. 6, No. 4 §§ 5, 6. In mid-
1995, the General Assembly amended the statutes to forbid situations of
contact with complaints under the age of 13, or where the complainant was
less than 16 years of age and the defendant was four or more years older
than the complainant and the two were unmarried. See 18 Pa.C.S. §§
3125(6)&(7), 3126(a)(6)&(7); see also 1995 P.L. 985, No. 10 (Spec. Sess.
No. 1), § 9. Therefore, the Commonwealth proceeded under subsection 6 of
18 Pa.C.S. §§ 3125 & 3126 for the crimes of aggravated indecent assault
and indecent assault which occurred in 1993 and 1994, under subsection 7
for the assaults in 1995 and 1996, and under subsection 8 for the assaults in
the years 1997, 1998, and 1999.
14
  The tenth day following Appellant’s conviction fell on March 16, 2014, a
Sunday. Accordingly, Appellant’s post-sentence motion was timely filed on
March 17, 2014, the next business day.



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      III. The sentencing court imposed an illegal sentence by
      imposing mandatory sentences under 42 Pa.C.S. § 9718, which
      is now unconstitutional in light of Alleyne v. United States, ---
      U.S. ----, 133 S.Ct. 2151 (2013).

Appellant’s Brief, p. 4.

      First,   Appellant   claims   the   trial   court   erred   in   allowing   the

Commonwealth to refer, on cross-examination of his son, to a statement the

son made to police in 2007 that, as a child, he witnessed his father having

sex with his sister.   See Appellant’s Brief, pp. 22-26.          Appellant claimed

questions about this report was impermissible prior bad acts evidence

prohibited by Pa.R.E. 404(b). Id. We disagree.

      This Court has stated the well-established standard of review for

admission of evidence claims as follows:

      The admission or exclusion of evidence is within the sound
      discretion of the trial court, and in reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the
      trial court upon a showing that it abused its discretion or
      committed an error of law. Thus, [this Court’s] standard of
      review is very narrow.        To constitute reversible error, an
      evidentiary ruling must not only be erroneous, but also harmful
      or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012).

      Pennsylvania Rule of Evidence 404 reads, in relevant part:

      (b) Crimes, Wrongs or Other Acts.

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person’s character in order to show
      that on a particular occasion the person acted in accordance with
      the character.




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       (2) Permitted Uses.       This evidence may be admissible for
       another purpose, such as proving motive, opportunity, intent,
       preparation, plan, knowledge, identity, absence of mistake, or
       lack of accident. In a criminal case this evidence is admissible
       only if the probative value of the evidence outweighs its potential
       for unfair prejudice.

       (3) Notice in a Criminal Case. In a criminal case the prosecutor
       must provide reasonable notice in advance of trial, or during trial
       if the court excuses pretrial notice on good cause shown, of the
       general nature of any such evidence the prosecutor intends to
       introduce at trial.

Pa.R.E. 404(b).

       During cross-examination of Appellant’s son (and the victim’s brother)

(“Brother”), the Commonwealth asked Brother whether he remembered

speaking to police in 2007, and whether he had ever told police that when

he was a little boy he had walked in on Appellant having sex with the victim.

See N.T., 8/13/2013, pp. 18, 20-23. Appellant objected and argued that,

because the requested testimony related to a report Brother made to police

in 2007 during an investigation on unrelated claims that Appellant had

abused Brother, the statement was Rule 404(b) prior bad act evidence. See

id. at 19-20.       At sidebar, the Commonwealth explained it intended to

question Brother about his statement that he had walked in on Appellant and

the victim having sex, not the underlying facts of the 2007 investigation. 15

____________________________________________


15
   The Commonwealth initially argued that the intended inquiry regarded an
inconsistent statement.     See N.T., 8/13/2013, p. 19.       However, the
transcript of the sidebar conversation on Appellant’s objection makes clear
that the Commonwealth intended to question Brother regarding statements
he had made about seeing Appellant have sex with the victim. Id. at 19-20.
(Footnote Continued Next Page)


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Id. at 19.     The trial court found the statement that Brother had seen

Appellant having sex with the victim to be a relevant inquiry to the charges

at hand, and overruled the objection.             Id. at 20.   The Commonwealth

continued its inquiry, and Brother conceded that he had told the police in

2007 that, when he was a little boy, he had walked in on his sister and

father having sex.16        This testimony concerned the very actions for which

Appellant was on trial, and was proper cross-examination.17

      Appellant’s attempt to cast the statement as Pa.R.E. 404(b) prior bad

acts evidence is unconvincing. The trial court explained it did not regard the

admission of the evidence regarding Brother’s 2007 statement as an attempt

                       _______________________
(Footnote Continued)


16
  Brother claimed that he lied in 2007 when he told police he had walked in
on his father and sister having sex. N.T., 8/13/2013, pp. 21-22. He
explained his then-girlfriend had told him to make this statement. Id.
17
   In its charge, the trial court specifically directed the jury to consider the
evidence regarding Brother’s prior statements to police solely for
impeachment purposes. N.T., 8/13/2013, pp. 146-47. This was error.
Brother’s prior statements regarding walking in on his father having sex with
his sister and a second statement in which he said his father forced him to
have sex with his sister concerned the very actions that make up the
charges against Appellant. Therefore, the trial court should have allowed
the jury to consider those statements for substantive purposes, not simply
impeachment.       However, we presume the jury followed the court’s
instruction. Commonwealth v. Robinson, 864 A.2d 460, 514 (Pa.2004);
see also Commonwealth v. Baker, 614 A.2d 663, 672 (Pa.1992) (“The
presumption in our law is that the jury has followed instructions [of the trial
court]”). Because the jury restricting its consideration of this evidence to
non-substantive purposes could only have benefitted Appellant, we find the
trial court’s jury instruction, to the extent it represented error, was
harmless.



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by the Commonwealth to avoid Pa.R.E. 404(b)’s notice requirements. Trial

Court Pa.R.A.P. 1925(a) Opinion (“1925(a) Opinion”), pp. 3-4.         The court

explained the statement was not evidence of Brother’s character or prior bad

act, crime, or wrongdoing, but instead an allegation that he disclosed to

police in 2007 that he walked in on his father having sex with the victim.

Id. Further, to the extent Appellant argues the statement constituted prior

bad acts of Appellant, he is incorrect. As stated supra, we agree with the

trial court that, because this evidence pertained to some of the alleged acts

for which Appellant was on trial, it was not 404(b) prior bad act evidence.

The trial court did not abuse its discretion in admitting this evidence.

       To the extent Brother’s answer revealed prior bad act evidence at all, 18

it did so spontaneously, in response to an open-ended prosecution question
____________________________________________


18
   Following the sidebar discussion, the Commonwealth again asked Brother
whether he remembered making a report to police in 2007. See N.T.,
8/13/2013, p. 20. Brother responded that he told police that “my dad
touched me[.]” Id. at 21. Before either the Commonwealth or Appellant
could object or move for sidebar, Brother continued, stating that he had lied
to police about his father touching him, thus revealing the reason for the
underlying investigation that occasioned the statement. Id. The prosecutor
immediately requested another sidebar conference and moved to strike
Brother’s response, explaining that she had not intended to elicit the
information Brother volunteered about the unrelated abuse investigation.
Id. The trial court immediately issued the following curative instruction:

       Ladies and gentlemen, I frankly didn’t understand the response,
       but please ignore it if you felt that there was a response there,
       ignore it and then we’re going to on to a different area of
       inquiry.

Id.



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not designed or intended to elicit information other than Brother’s admission

in the statement that he had walked in on Appellant and victim having sex.

See N.T., 8/13/2013, pp. 20-21. Further, the trial court promptly instructed

the jury to disregard Brother’s answer. See id. at 21; see also Robinson,

supra; see also Baker, supra (“The presumption in our law is that the jury

has followed instructions [of the trial court]”).   Therefore, Appellant is not

entitled to a new trial based on the admission of this evidence.

      Next, Appellant claims that his convictions were against the weight of

the evidence. See Appellant’s Brief, pp. 26-30. Specifically, he claims that

inconsistencies between the victim’s testimony and testimony of other

witnesses regarding whether victim’s mother or father would take the

children to the bus stop in the morning rendered the victim’s version of the

crimes impossible. See id. We do not agree.

      The denial of a new trial based on a lower court’s determination that

the verdict was not against the weight of the evidence is one of the least

assailable reasons for granting or denying a new trial. Commonwealth v.

Clay, 64 A.3d 1049, 1055 (Pa.2013).        This Court reviews weight of the

evidence claims pursuant to the following standard:

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation that the verdict is against the
      weight of the evidence is addressed to the discretion of the trial
      court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. A trial judge must

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       do more than reassess the credibility of the witnesses and allege
       that he would not have assented to the verdict if he were a
       juror. Trial judges, in reviewing a claim that the verdict is
       against the weight of the evidence do not sit as the thirteenth
       juror. Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

       Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice,19 “such that right must be

given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).            Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.        Widmer, 744 A.2d at 753.      When reviewing the

trial court’s determination, this Court gives the gravest deference to the
____________________________________________


19
  This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury’s verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
       from the bench, then it is truly shocking to the judicial
       conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).



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findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

       In prosecutions for sexual offenses, “the uncorroborated testimony of

the   complaining       witness     is   sufficient   to   convict   a   defendant[.]”

Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.Super.2003); 18 Pa.C.S.

§ 3106 (“The testimony of a complainant need not be corroborated in

prosecutions under this chapter.”).            Further, the jury, as finder of fact,

passes judgment on the credibility of witnesses and is free to believe all,

some, or none of the testimony presented.                  See Commonwealth v.

Thompson, 106 A.3d 742, 756 (Pa.Super.2014) (quoting Commonwealth

v. Caban, 60 A.3d 120, 132–133 (Pa.Super.2012)).

       Simply stated, the jury’s verdict in this matter illustrates that the jury

found the victim’s testimony regarding the assaults credible. To the extent

inconsistencies existed between the victim’s testimony and that of other

witnesses,20 such inconsistencies do not prevent conviction.              As the trial
____________________________________________


20
    Appellant noted the testimony of his son, the victim’s mother, a
babysitter, and a woman who worked downstairs from their apartment that
the mother always took the children to the bus stop in the morning because
Appellant was at work. See Appellant’s Brief, pp. 26-30. Appellant claimed
this evidence established that the victim could not have been alone with,
and abused by, Appellant in the mornings, as she claimed.          See id.
However, although the trial testimony included inconsistencies, the victim’s
testimony, regarding grievous abuse she endured 20 years ago as a young
child, established that her father abused her, for the most part, when she
and he were home together alone because she had stayed home “sick” from
school. The testimony regarding which parent regularly took the victim to
the school bus in the morning, to the extent such testimony was not
(Footnote Continued Next Page)


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J-S44004-15



court explained, “the guilty verdict was not shocking to the judicial

conscience despite [Appellant’s] claims of inconsistent and incredible

testimony by the victim.”         1925(a) Opinion, p. 2.   Our review of the trial

transcript reveals the trial court did not abuse its discretion in denying a new

trial based on the weight of the evidence. Accordingly, Appellant’s weight of

the evidence claim fails.

        Lastly, Appellant claims the trial court illegally sentenced him because

it applied mandatory minimum sentences under 42 Pa.C.S. 9718, which he

argues are illegal pursuant to Alleyne v. United States.21 See Appellant’s

Brief, pp. 31-34. We agree.

        Initially, we note that issues regarding the Supreme Court of the

United States’ decision in Alleyne directly implicate the legality of the

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

Our standard of review of questions involving the legality of a sentence is as

follows:

        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 if no statutory authorization exists for a
        particular sentence, that sentence is illegal and subject to
                       _______________________
(Footnote Continued)

discredited, or Appellant’s work schedule when he was employed, did not
render the victim’s version of the abuse a “factual impossibility” as Appellant
claims. Appellant’s Brief, p. 30. On balance, the inconsistencies in the trial
testimony neither precluded the victim’s story from being true, nor
necessitated a jury finding that the victim was lying.
21
     --- U.S. ----, 133 S.Ct. 2151 (2013).



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     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.

Wolfe, 106 A.3d at 801-02 (citations omitted).

     In this case, Appellant was sentenced under 42 Pa.C.S. § 9718, which

requires a mandatory minimum sentence for offenses against infant persons.

Section 9718’s enforcement provision provides:

     (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.

     In Alleyne, the Supreme Court of the United States held that the Due

Process Clause of the Constitution of the United States requires each factor

that increases a mandatory minimum sentence to be submitted to a jury and

found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. Based upon

Alleyne, this Court stated in dicta in Commonwealth v. Watley that

sections 7508 and 9712.1 of the Sentencing Code are unconstitutional

insofar as they permit a judge to automatically increase a defendant’s

sentence based on a preponderance of the evidence standard for factors




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other than a prior conviction.   Commonwealth v. Watley, 81 A.3d 108,

177 n.4 (Pa.Super.2013) (en banc), appeal denied, 95 A.3d 277 (Pa.2014).

       In Commonwealth v. Newman, following our dicta in Watley, this

Court held that the preponderance of the evidence standard in section

9712.1(c) is unconstitutional under Alleyne.       Newman, 99 A.3d 86

(Pa.Super.2014) (en banc). We then addressed whether it was possible to

continue enforcing the remaining subsections of section 9712.1 after

severing subsection (c). We held that section 9712.1, as a whole, was no

longer workable, because subsection (c) was “essentially and inseparably

connected” with the mandatory minimum sentencing provision in subsection

(a).   Id. at 101.   Accordingly, in Newman, we vacated the defendant’s

judgment of sentence and remanded for resentencing “without consideration

of any mandatory minimum sentence provided by section 9712.1.”       Id. at

103.

       More recently, this Court specifically analyzed 42 Pa.C.S. § 9718 in

Wolfe.    We recognized that section 9718 contained the same format as

section 9712.1, the statute struck down as unconstitutional in Newman.

Wolfe, 106 A.3d at 805. We therefore determined that section 9718 was

unconstitutional, vacated the judgment of sentence, and remanded the case




                                   - 13 -
J-S44004-15



for resentencing without application of the section 9718 mandatory

minimum. Id. at 806.22

       Therefore, pursuant to Wolfe,23 because the trial court at least

partially sentenced Appellant under the unconstitutional provision of section

9718, we must vacate Appellant’s judgment of sentence and remand for

resentencing without application of section 9718.

       Convictions affirmed. Judgment of sentence vacated; case remanded

for resentencing. Jurisdiction relinquished.




____________________________________________


22
   The Supreme Court of Pennsylvania recently applied Newman’s
reasoning to find a mandatory minimum sentencing statute unconstitutional.
See Commonwealth v. Hopkins, --- A.3d ----, 2015 WL 3949099 (Pa.
June 15, 2015) (18 Pa.C.S. § 6317 unconstitutional under Alleyne and
unconstitutional provisions not severable).
23
    We acknowledge that our Supreme Court recently granted expedited
allowance of appeal from Wolfe to consider the issue of whether this Court’s
sua sponte determination that the 10-year mandatory minimum sentence for
involuntary deviate sexual intercourse imposed pursuant to 42 Pa.C.S. §
9718(a)(1) is facially unconstitutional is erroneous as a matter of law. See
Commonwealth v. Wolfe, 63 MAL 2015. However, unless and until
overturned by the Supreme Court, Wolfe remains controlling law. See
Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa.Super.2000)
(noting that, despite having been granted a petition for allowance of appeal,
a decision remains precedential until it has been overturned by the
Pennsylvania Supreme Court).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2015




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