J-S55020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    W.J.T.                                     :
                                               :
                       Appellant               :   No. 339 WDA 2019

      Appeal from the Judgment of Sentence Entered September 13, 2018
      In the Court of Common Pleas of McKean County Criminal Division at
                        No(s): CP-42-CR-0000224-2017


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.:                          FILED FEBRUARY 3, 2020

        W.J.T. appeals from the judgment of sentence entered following his

conviction for indecent assault.1 W.J.T. challenges the sufficiency and weight

of the evidence, and argues the court’s imposition of a mandatory minimum

sentence under 42 Pa.C.S.A. § 9718.2(a)(1) was an illegal retroactive

application of that statute. We affirm W.J.T.’s conviction, vacate W.J.T.’s

judgment of sentence, and remand for resentencing.

        The trial court related the facts presented at W.J.T.’s jury trial in its Rule

1925(a) opinion. See Trial Court Opinion, filed April 4, 2019, at 2-4. In short,

the victim testified regarding three incidents that occurred between July 24,

2006, and July 24, 2008, when the victim was five to six years old. The victim
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*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. § 3126(a)(7).
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testified that he had lived with W.J.T., his step-father, since he was two years

old, and was living with W.J.T., his Mother, and several siblings when the

incidents occurred. During the first incident, W.J.T. had penetrative anal sex

with the victim; during the second incident, W.J.T. forced the victim to suck

his mother’s breasts; and during the third incident, W.J.T. forced the victim

to have penetrative intercourse with his mother. The jury found W.J.T. guilty

of indecent assault.2

       The court sentenced W.J.T. to 25 to 50 years’ incarceration. The court

applied 42 Pa.C.S.A. § 9718.2(a)(1), which provides for a mandatory

minimum sentence of 25 years’ incarceration for any person convicted of an

offense set forth in Section 9799.14 and who, at the time of the offense, had

previously been convicted of an offense set forth in Section 9799.14 or an

equivalent offense. See 42 Pa.C.S.A. § 9718.2(a)(1). Among other offenses,

Section 9799.14 lists indecent assault, statutory assault, and corruption of

minors. See 42 Pa.C.S.A. § 9799.14(d)(8), (d)(3), and (b)(8). The court found

that W.J.T. had been convicted in 1987 of statutory rape3 and corruption of
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2 The jury found W.J.T. not guilty of rape of a child, involuntary deviate sexual
intercourse, and aggravated indecent assault of a child. See 18 Pa.C.S.A. §
3121(c), 3123(b), and 3125(b), respectively. The jury additionally found
W.J.T. guilty of corruption of a minor, see 18 Pa.C.S.A. § 6301(a)(1), but the
court later vacated that conviction on the basis that the crime as charged
included language from a version of the statute that was not in effect at the
time W.J.T. committed the offense. See Tr. Ct. Op. at 5.
3 The court noted the statute establishing the offense of statutory rape was
repealed in 1995 and replaced with the offense of statutory sexual assault. Tr.
Ct. Op. at 14.



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minors, and thus sentenced him to the mandatory minimum. The court also

notified W.J.T. that he is subject to lifetime registration as a sexual offender

under 42 Pa.C.S.A. § 9799.23. W.J.T. filed a post sentence motion, which the

court denied.

       W.J.T. appealed,4 and raises the following issues:

       1. Is the guilty verdict for Indecent Assault supported by
       insufficient evidence to establish each element beyond a
       reasonable doubt?

       2. Is the guilty verdict for Indecent Assault against the weight of
       the evidence to such an extent as to shock one’s sense of justice
       because the testimony of the alleged [victim] was internally
       inconsistent, and was also inconsistent with the remaining
       evidence presented at trial, including the alleged victim’s own
       prior testimony and statements concerning the events; when
       there was no prompt reporting of the alleged incident; when
       several years elapsed between the alleged incident and any
       interview with the police; when the alleged victim had to be
       reminded to tell anyone; and when the alleged victim’s testimony
       was so wholly lacking in credibility that no reasonable jury could
       have found him credible[?]

       3. Was [W.J.T.]’s sentence illegal when (a) the trial court imposed
       a twenty-five to fifty year sentence under the mandatory
       sentencing scheme set forth in 42 Pa.C.S. § 9718 when the acts
       were alleged to have occurred between July, 2006, and July,
       2008; when the evidence did not establish beyond a reasonable
       doubt during which time the acts allegedly occurred; and when
       the mandatory sentencing statute at issue did not go into effect
       until 2008; thus constituting an illegal sentence and a violation of

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4 The trial court docketed W.J.T.’s notice of appeal on February 26, 2019,
more than thirty days after January 22, 2019, when the trial court denied
W.J.T.’s post-sentence motions. However, W.J.T. provided this Court with an
e-mail from an employee of the trial court confirming that the court received
W.J.T.’s notice of appeal on February 21, 2019, within the thirty-day deadline.
The Commonwealth does not argue W.J.T.’s notice of appeal was untimely.
We decline to quash.

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      the ex post facto clause[s] of the United States and Pennsylvania
      Constitutions?

W.J.T.’s Br. at 5 (answers of trial court omitted).

                                I. Sufficiency

      W.J.T. argues the evidence is insufficient because the victim offered trial

testimony that was inconsistent with his testimony at the preliminary hearing,

and did not report the incidents to anyone until he was no longer residing in

W.J.T.’s home. W.J.T.’s Br. at 10-11.

      “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.” Commonwealth

v. Miller, 217 A.3d 1254, 1256 (Pa.Super. 2019) (quoting Commonwealth

v. Bradley, 69 A.3d 253, 255 (Pa.Super. 2013)). “If the Commonwealth has

presented some evidence of each element of the crime, we deem the evidence

sufficient unless it is ‘so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined circumstances.’” Id.

(quoting Bradley, 69 A.3d at 255).

      W.J.T. was convicted of indecent assault under 18 Pa.C.S.A. §

3126(a)(7), which requires the Commonwealth to prove the following:

      (a) Offense defined.--A person is guilty of indecent assault if the
      person has indecent contact with the complainant, causes the
      complainant to have indecent contact with the person or
      intentionally causes the complainant to come into contact with
      seminal fluid, urine or feces for the purpose of arousing sexual
      desire in the person or the complainant and:

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                                      ...

      (7) the complainant is less than 13 years of age[.]

18 Pa.C.S.A. § 3126(a)(7). “Indecent contact” is defined as “[a]ny touching

of the sexual or other intimate parts of the person for the purpose of arousing

or   gratifying sexual desire, in any       person.”   18   Pa.C.S.A. §   3101;

Commonwealth v. Grayson, 549 A.2d 593, 596 (Pa.Super. 1988).

      Here, the victim testified that W.J.T. forced him to have penetrative

sexual intercourse and engage in other sexual acts involving intimate body

parts. This evidence, viewed in the light most favorable to the Commonwealth,

was sufficient to prove the elements of indecent assault. W.J.T.’s argument

that the victim’s testimony was incredible because it was inconsistent with his

prior testimony and he delayed in reporting the incidents go to the weight,

and not the sufficiency of the evidence. See Commonwealth v. Wilson, 825

A.2d 710, 713-14 (Pa.Super. 2003). We address the weight of the evidence

in the next section. On W.J.T.’s sufficiency claim, we conclude no relief is due.

                                  II. Weight

      W.J.T. argues the verdict is against the weight of the evidence “because

of the inconsistencies in the alleged victim’s testimony as well as with the

other evidence adduced at trial.” W.J.T.’s Br. at 11. Specifically, W.J.T. argues

the victim’s testimony was “internally inconsistent,” as the victim “could not

recall when the offense occurred but offered several different accounts of what

occurred during the course of the day in question and conceded his memory

was poor.” Id. at 12. W.J.T. further argues that “[w]hen confronted, [the


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victim] acknowledged several inconsistencies between his trial testimony and

his former testimony at the preliminary hearing,” and that the victim “did not

tell anyone about the incident until he was no longer residing at his mother

and [W.J.T.]’s home, and stated he wanted to return [sic] there “until he told

[authorities] this happened.” Id. (some alteration in original).

      “The weight of the evidence is exclusively for the finder of fact, who is

free to believe all, none or some of the evidence and to determine the

credibility of the witnesses.” Commonwealth v. Roane, 204 A.3d 998, 1001

(Pa.Super. 2019) (quoting Commonwealth v. Cramer, 195 A.3d 594, 600

(Pa.Super. 2018)). The trial court must not reverse the verdict unless “it is so

contrary to the evidence as to shock one’s sense of justice.” Id. (quoting

Commonwealth v. Johnson, 192 A.3d 1149, 1153 (Pa.Super. 2018)). We

review the trial court’s decision on the weight of the evidence claim for an

abuse of discretion, giving great reference to the trial court, which viewed the

evidence first-hand. Id.

      Here, the trial court determined the weight claim was without merit

because “the evidence presented at trial was not tenuous, vague and

uncertain.” Tr. Ct. Op. at 11. The court found that “[the victim] clearly and

specifically described being sexually assaulted by [W.J.T.]” and “the jury

clearly accepted at least some of his testimony, and, once they did, there was

an immediate basis for a conviction [for indecent assault].” Id. The court

concluded that the “verdict does not shock the consci[ence] of the court.” Id.




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We discern no abuse of discretion with the trial court’s analysis, and hold

W.J.T. is due no relief on his weight claim.

                                III. Sentence

      W.J.T. argues his sentence is illegal for two reasons. First, although not

encompassed by his question presented, W.J.T. argues his prior conviction

would not have required him “to register under the then-current version of

Megan’s Law.” W.J.T.’s Br. at 13 (citing 42 Pa.C.S.A. §§ 9795.1, 9795.2,

expired Dec. 20, 2012). Second, W.J.T. argues that Section 9718.2,

establishing the mandatory minimum, did not become effective until January

1, 2007, and the Commonwealth did not prove beyond a reasonable doubt

that he committed the instant offense after that date. Id.

      W.J.T. essentially argues that when the court imposed the mandatory

minimum and gave W.J.T. notice of his registration requirements, the court

applied the relevant statutes retroactively, thereby increasing his punishment,

in violation of the ex post facto clauses. These arguments call into question

the legality of W.J.T.’s sentence, and are non-waivable issues that this Court

may decide de novo. See Commonwealth v. Foster, 17 A.3d 332, 345 (Pa.

2011) (application of mandatory minimum implicates legality of sentence and

is non-waivable); Commonwealth v. Alston, 212 A.3d 526, 528 (Pa.Super.

2019) (registration requirements implicate legality of sentence, to which this

Court applies de novo standard of review).

      We conclude the court must issue new notice to W.J.T. of his registration

requirements. The court notified W.J.T. that he was subject to registration

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pursuant to 42 Pa.C.S.A. § 9799.23. However, an application of that section

to offenders, such as W.J.T., who committed offenses prior to December 20,

2012, the effective date of the Sex Offender Registration and Notification Act

(“SORNA”), violates the Ex Post Facto Clauses of the United States and

Pennsylvania Constitutions. See Commonwealth v. Muniz, 164 A.3d 1189,

1193 (Pa. 2017). After W.J.T.’s sentencing, the legislature amended SORNA.

W.J.T. now faces registration pursuant to Subchapter I of SORNA,5 which

applies to offenders who committed offenses between April 22, 1996, and

December 20, 2012. We therefore instruct the court to provide new notice to

W.J.T. regarding his registration requirements. See Alston, 212 A.3d at 530

(remanding for new notification of registration requirements).

        We further conclude the court erred in applying the mandatory minimum

sentence imposed by 42 Pa.C.S.A. § 9718.2(a)(1). That statute first took

effect on January 1, 2007. The Commonwealth charged W.J.T. with

committing offenses between July 24, 2006, and July 24, 2008. The victim

testified to three events that occurred at some point between those dates. The

jury found W.J.T. guilty of one count of indecent assault, and did not find any

specific date applied.

        As there was no specific finding that W.J.T. committed his offenses after

the effective date of the statute imposing the 25-year mandatory minimum,

W.J.T. is entitled to the lower penalty. See Commonwealth v. Rose, 127

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5   42 Pa.C.S.A. §§ 9799.51-9799.75.

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A.3d 794, 805-06 (Pa. 2015) (stating the date on which the criminal act is

committed controls evaluation of ex post facto claim); Commonwealth v.

Wood, 208 A.3d 131, 137 (Pa.Super. 2019) (stating the effective date of a

statute is the relevant date for ex post facto determinations); cf. Alston, 212

A.3d at 530 (“[W]hen an appellant’s offenses straddle the effective dates of

Subchapters H and I of SORNA, he is entitled to the lower reporting

requirements of Subchapter I, absent a specific finding of when the offenses

related to the convictions actually occurred”); Commonwealth v. Weimer,

167 A.3d 78, 85-86 (Pa.Super. 2017) (holding lowest grading should apply

where jury did not make specific finding to substantiate higher grading of

unlawful contact of a minor). We therefore vacate W.J.T.’s judgment of

sentence and remand for resentencing.

      Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2020




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