J-S69009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

GENE PETERS

                            Appellant                   No. 2498 EDA 2013


            Appeal from the Judgment of Sentence August 5, 2013
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0006342-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED DECEMBER 02, 2014

        Appellant, Gene Peters, appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas, following his

stipulated bench trial conviction for involuntary deviate sexual intercourse

(child under 16 years of age) (“IDSI”).1 We affirm Appellant’s conviction but

vacate and remand for resentencing.

        In its opinions, the trial court set forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them.

        Appellant raises one issue for our review:


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1
    18 Pa.C.S.A. § 3123(a)(7).
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          WHETHER THE TRIAL COURT ERRED IN DENYING
          APPELLANT’S MOTION TO SUPPRESS STATEMENTS
          BECAUSE APPELLANT’S WAIVER OF MIRANDA[2] RIGHTS
          WAS NOT THE RESULT OF A FREE AND DELIBERATE
          CHOICE OF APPELLANT?

(Appellant’s Brief at 4).

        After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Thomas C.

Branca, we conclude Appellant’s issue merits no relief.       The trial court

opinions comprehensively discuss and properly dispose of the question

presented.      (See Trial Court Opinion, filed March 7, 2014, at 5-10;

Suppression Court Opinion, filed May 24, 2012, at 4-6) (finding: ten and

one-half hour delay between Appellant’s arrest and Appellant’s statement to

police was not aimed to overcome Appellant’s will; Detective Angelucci is

only sex crimes detective in Norristown Police Department and had to attend

to other matters on morning of Appellant’s arrest, before speaking with

Appellant; Appellant admitted he slept virtually entire time he was in

custody; detective offered Appellant food and drink during interview, and

Appellant waived Miranda warnings and gave voluntary statement to police;

during period Appellant was in custody he had access to toilet and water

fountain; record fails to show Appellant suffered from any adverse physical

condition while in custody; Detective Angelucci testified credibly that

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2
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).



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Appellant appeared calm, alert, and coherent during interview; detective’s

discussion      with     Appellant    about    getting    treatment      merely    reflected

detective’s attitude that Appellant needed help and was not meant to coerce

Appellant to make statement; Detective Angelucci made no promises in

exchange for Appellant’s statement; record belies Appellant’s claim that he

was intoxicated during interview; court properly denied suppression motion

where Appellant’s waiver of Miranda rights was knowing, voluntary and

intelligent).         Accordingly, we affirm the court’s denial of Appellant’s

suppression motion on the basis of the trial court’s opinions.

      Nevertheless, we are mindful of the United States Supreme Court’s

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

L.Ed.2d 314 (2013), in which the Court expressly 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.         Id.     Here, the court imposed the mandatory minimum

sentence under a former version of 42 Pa.C.S.A. § 9718 (governing

sentences       for    offenses    against    infant   persons)    for   Appellant’s   IDSI

conviction.      Consequently, we elect to review the legality of Appellant’s

sentence sua sponte.            See Commonwealth v. Edrington, 780 A.2d 721

(Pa.Super.      2001)      (explaining   challenge       to   application   of    mandatory

minimum sentence is non-waiveable challenge to legality of sentence, which

this Court can raise sua sponte, assuming jurisdiction is proper).


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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 under sixteen (16) years of age.           See 42 Pa.C.S.A. § 9718(a)(1)

(effective January 1, 2007 to August 17, 2014).            Section 9718(c) of this

statute states that its provisions shall not be an element of the crime and

applicability of the statute shall be determined by the court at sentencing by

a preponderance of the evidence. 42 Pa.C.S.A. § 9718(c).3

       Recently, in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc), this Court addressed the constitutionality of a mandatory

minimum sentencing statute containing language similar to Section 9718(c).

This Court analyzed whether Newman’s mandatory minimum sentence was

constitutional in light of the United States Supreme Court’s decision in

Alleyne, supra.       Relying on Alleyne, Newman held that Section 9712.1

can no longer pass constitutional muster as it “permits the trial court, as

opposed to the jury, to increase a defendant’s minimum sentence based

upon a preponderance of the evidence that the defendant was dealing drugs

and possessed a firearm, or that a firearm was in close proximity to the

drugs.” Newman, supra at 98. Thus, this Court vacated Newman’s PWID

sentence     and   remanded       for   resentencing   without   imposition   of   the

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3
  The current version of Section 9718 contains the same mandatory
minimum sentence for Appellant’s crime and the same language contained in
Section 9718(c). See 42 Pa.C.S.A. § 9718 (effective August 18, 2014).



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mandatory minimum under Section 9712.1.4 See also Commonwealth v.

Valentine, ___ A.3d ___, 2014 PA Super 220 (filed October 3, 2014)

(involving appeal of sentence arising from jury trial; extending logic of

Alleyne and Newman to Sections 9712 and 9713 and holding those

sections are likewise unconstitutional insofar as they permit automatic

increase of defendant’s sentence based on preponderance of evidence

standard).

       Here, the court found Appellant guilty of IDSI of a child less than 16

years per 18 Pa.C.S.A. § 3123(a)(7), following a stipulated bench trial. The

record indicates Appellant proceeded to a stipulated bench trial to preserve

his suppression challenge for appellate review. (See N.T. Stipulated Bench

Trial, 10/16/12, at 7-8.)       The Commonwealth agreed to withdraw another

charge in the case and to seek no more than the mandatory minimum under

Section 9718. (See id. at 11-12.)5 Appellant made clear he was stipulating

that the Commonwealth’s presentation of the victim’s testimony was

consistent with what the victim would say if called to testify; Appellant did

not stipulate that the Commonwealth’s presentation of evidence was true.

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4
  This Court also made clear that Alleyne is subject to limited retroactivity;
in other words, Alleyne is applicable to all criminal cases still pending on
direct review. Id. at 90. Because Newman’s case was still pending on direct
appeal, the holding in Alleyne applied to Newman’s case.
5
   The Commonwealth ultimately withdrew all charges in the criminal
information except the IDSI charge.



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(Id.)

        Following the court’s conclusion that Appellant’s decision to waive a

jury trial and proceed to a stipulated bench trial was knowing, intelligent,

and voluntary, the Commonwealth presented, inter alia, the following

evidence: if the case proceeded to a traditional bench or jury trial, the

Commonwealth would call the victim to testify; the victim is eleven years old

and was nine years old at the time of the offense; on August 8, 2011,

Appellant was staying in the victim’s home for the night as a guest of the

victim’s mother; in the early morning hours of that day, the victim was lying

on the floor of the living room and fell asleep next to Appellant; Appellant

anally penetrated the victim; the Commonwealth would also call Detective

Angelucci as a witness, who would testify consistent with his testimony at

the suppression hearing.       The Commonwealth also admitted into evidence

Appellant’s written waiver of Miranda rights and Appellant’s statement to

police. Following closing arguments, the court convicted Appellant of IDSI of

a child less than 16 years.

        Notably, Appellant did not dispute the victim’s age. Further, nothing in

Alleyne     suggests   it   applies   to   a   stipulated bench   trial   where   the

Commonwealth presented evidence of the fact which triggered imposition of

the mandatory minimum (the victim’s age), and the court expressly

convicted Appellant under a statute which contains that same fact as an

element of the crime. See 18 Pa.C.S.A. § 3123(a)(7). See also Alleyne,


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supra. Nevertheless, based on Appellant’s qualified stipulation and in an

abundance of caution, given this Court’s decisions in Newman and

Valentine, we vacate and remand for resentencing.6 Accordingly, we affirm

Appellant’s conviction, but we vacate the judgment of sentence and remand

for resentencing without imposition of a mandatory minimum sentence.

       Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




____________________________________________


6
  In Commonwealth v. Matteson, 96 A.3d 1064 (Pa.Super. 2014), this
Court upheld imposition of the mandatory minimum sentence under Section
9718 for the defendant’s aggravated indecent assault of a child conviction
following a jury trial.   See id. (explaining Sixth Amendment concerns
present in Alleyne are not implicated where Commonwealth charged
defendant with aggravated indecent assault of child which requires that
victim is less than 13 years of age, and victim testified she was 11 years old
at time of incident; therefore, jury specifically found beyond reasonable
doubt element required to impose mandatory minimum sentence under
Section 9718). This Court in Valentine expressly considered Matteson
when ruling and nevertheless adhered to this Court’s en banc decision in
Newman (decided after Matteson). See Valentine, supra at *9 n.4. We
reach the same decision here.



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