J-S45028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

STEPHEN NOEL JESSEE

                            Appellant                   No. 1520 MDA 2014


          Appeal from the Judgment of Sentence of August 27, 2014
                In the Court of Common Pleas of York County
              Criminal Division at No: CP-67-CR-0003413-2013


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                               FILED AUGUST 31, 2015

       Stephen Jessee (“Jessee”) appeals the judgment of sentence entered

on August 27, 2014. While we find Jessee’s claim on appeal unavailing, we

are constrained by recent precedent to vacate Jessee’s judgment of sentence

and to remand for resentencing.

       On February 8, 2013, Sergeant Lisa Layden interviewed K.W. at the

York County District Attorney’s Office. During that interview, K.W. reported

that her stepfather, Jessee, had sexually abused her on numerous occasions.

K.W. reported that Jessee began having sexual contact with her when she

was fourteen years old, and that the two had sexual intercourse when she

was approximately fifteen years old.           Specifically, K.W. stated that the

____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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sexual intercourse took place at the family’s home in Spring Grove,

Pennsylvania and also in a trailer at Conewago Isle Campground in Dover,

Pennsylvania. K.W. further explained that she and Jessee have a daughter

together, that the two shared custody of the child, and that she was

concerned for her daughter’s safety.

       On April 5, 2013, Sergeant Layden filed a criminal complaint charging

Jessee with involuntary deviate sexual intercourse, statutory sexual assault,

aggravated indecent assault, indecent assault, and corruption of minors.1

On May 8, 2013, K.W. testified at Jessee’s preliminary hearing before

Magisterial District Judge Thomas Reilly.        K.W.’s testimony tracked the

statement that she had given to Sergeant Layden earlier. K.W. testified that

Jessee “sexually molested [her] from age 14 until [she] was 17.”

Preliminary Hearing Transcript, 5/8/2013, at 5. K.W. also testified that she

and Jessee had sexual intercourse at the family’s home in Spring Grove,

Pennsylvania when she was fourteen years old. Id. at 5-6.

       On March 31, 2014, Jessee proceeded to a jury trial. On that same

day, the Commonwealth called K.W. as a witness.         K.W. contradicted her

earlier statement to police and her preliminary hearing testimony, and

testified that she and Jessee did not have sexual contact until she was

seventeen years old. The Commonwealth then proceeded to question K.W.
____________________________________________


1
     18 Pa.C.S. §§ 3123(a)(7), 3122.1, 3125(a)(8), 3126(a)(8), and
6301(a)(1), respectively.



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about her prior inconsistent testimony, which she had given at Jessee’s

preliminary hearing:

     Q: So at [the preliminary hearing] you indicated that you were
     14 when this began, is that correct?

     A: Yes.

     Q: Okay. And was that the truth? Were you under oath when
     you indicated that?

     A: Yes.

     Q: And today you are testifying that this happened when you
     were 17 1/2?

     A: Yes.

     Q: Why did you say 14 at the time?

     A: At the time I had believed what others had told me.

     Q: You had believed what others had told you?

     A: Yes.

     Q: And who else was telling you something?

     A: My ex-boyfriend and my grandmother.

     Q: What did they tell you?

     A: They told me that [Jessee] had been having sex with me
     since I was 14, and I believed it.

     Q: Okay. So you don’t remember having sex?

     A: No.

Notes of Testimony (“N.T.”), 3/31/2014, at 75-76.

     On April 1, 2014, notwithstanding K.W.’s testimony, the jury found

Jessee guilty of involuntary deviate sexual intercourse, statutory sexual

assault, aggravated indecent assault, indecent assault, and corruption of


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minors. On April 8, 2014, Jessee filed a motion for judgment of acquittal.

Therein, Jessee argued that the jury’s verdict was “against the weight and

sufficiency of the evidence presented at trial.”    Motion for Judgment of

Acquittal, 4/8/2014, at 2 (unnumbered).          On August 22, 2014, the

Commonwealth filed a notice of its intent to seek imposition of a ten-year

mandatory minimum sentence. See 42 Pa.C.S. § 9718(a)(1) (providing that

a person convicted of involuntary deviate sexual intercourse when the victim

is less than sixteen years of age shall be sentenced to a mandatory ten-year

term of imprisonment).

       At a sentencing hearing on August 27, 2014, the trial court denied

Jessee’s motion for judgment of acquittal.       Specifically, the trial court

reasoned that the jury was free to evaluate both of K.W.’s contradictory

narratives, and to determine which one was credible.           See Notes of

Testimony Sentencing (“N.T.S.”), 8/27/2014, at 5.       The trial court then

sentenced Jessee to ten to twenty years’ imprisonment for involuntary

deviate sexual intercourse, the mandatory minimum sentence prescribed by

42 Pa.C.S. § 9718(a)(1).2

       On September 10, 2014, Jessee filed a notice of appeal. On that same

day, the trial court ordered Jessee to file a concise statement of errors
____________________________________________


2
      The trial court also imposed concurrent sentences of six to fourteen
months’ imprisonment for statutory sexual assault, two to four years’
imprisonment for aggravated indecent assault, twelve months’ probation for
indecent assault, and twelve months’ probation for corruption of minors.



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complained of on appeal pursuant to Pa.R.A.P. 1925(b).           Jessee timely

complied.    On November 6, 2014, the trial court filed a Pa.R.A.P. 1925(a)

opinion.

      Jessee presents one issue for our consideration: “Can a guilty verdict

by a jury be sustained when it is based on the perjured testimony of a

purported victim?” Brief for Jessee at 4. We construe Jessee’s sole issue as

a challenge to the weight of the evidence. See id. at 8 (“The claim made

herein is under a claim of [w]eight of the [e]vidence. . . .”). To the degree

that Jessee separately asserts “a denial of Due Process as envisioned in both

United States and Pennsylvania law,” we find that Jessee has waived this

claim by failing to raise it in his concise statement of errors complained of on

appeal.    Id. at 7; see Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.

Super. 2000) (“Any issues not raised in a 1925(b) statement will be deemed

waived.”).

      When reviewing a trial court’s ruling that the verdict was not contrary

to the weight of the evidence, we review the trial court’s exercise of

discretion, rather than the underlying question of whether the verdict is

against the weight of the evidence.    Commonwealth v. Smith, 985 A.2d

886, 888 (Pa. 2009). Because the jury is free to believe all, part, or none of

the evidence presented, a new trial should not be granted merely because

the judge, on the same facts, would have arrived at a different conclusion.

Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000). Instead, “the

role of the trial judge is to determine that[,] notwithstanding all the facts,

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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.” Id. Hence, the trial

court should award a new trial only when the jury’s verdict is “so contrary to

the evidence as to shock one’s sense of justice[,] and the award of a new

trial is imperative so that right may be given another opportunity to prevail.”

Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994).                 In effect,

“the trial court’s denial of a motion for a new trial based on a weight of the

evidence claim is the least assailable of its rulings.”    Commonwealth v.

Ramtahal, 33 A.3d 602, 609 (Pa. 2011).

      This does not mean that the trial court’s discretion to grant or deny a

motion for a new trial based upon a challenge to the weight of the evidence

is unrestrained.   In describing the limits of a trial court’s discretion, our

Supreme Court has explained as follows:

      The term “discretion” imports the exercise of judgment, wisdom
      and skill so as to reach a dispassionate conclusion within the
      framework of the law, and is not exercised for the purpose of
      giving effect to the will of the judge.          Discretion must be
      exercised on the foundation of reason, as opposed to prejudice,
      personal motivations, caprice or arbitrary actions. Discretion is
      abused where the course pursued represents not merely an error
      of judgment, but where the judgment is manifestly unreasonable
      or where the law is not applied or where the record shows that
      the action is a result of partiality, prejudice, bias or ill-will.

Widmer, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., 625 A.2d

1181, 1184-85 (Pa. 1993)).

      Instantly, the trial court explained its rejection of Jessee’s challenge to

the weight of the evidence as follows:

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         The [c]ourt also finds that the [j]ury’s verdict was not against
         the weight of the evidence. The current state of the law directs
         that only a convicted perjurer is incompetent to testify at trial.
         The [c]ourt finds this issue to be very difficult because the victim
         lied either at the preliminary hearing or during trial. While the
         [c]ourt may have misgivings about the victim’s testimony and
         the Commonwealth’s evidence, the [c]ourt must adhere to the
         established laws of Pennsylvania.         The victim was not a
         convicted perjurer. Although she lied on at least one occasion,
         the [c]ourt finds that the [j]ury was free to believe all, part[,] or
         none of the victim’s testimony at either the preliminary hearing
         or the trial. As such, the [c]ourt concludes that the [j]ury’s
         verdict did not shock the [c]ourt’s sense of justice to warrant a
         new trial, and it concludes that the [j]ury’s verdict was not
         against the weight of the evidence.

Trial Court Opinion (“T.C.O.”), 11/6/2014, at 2 (emphasis in original).

         The trial court did not abuse its discretion in ruling that Jessee failed to

establish the sort of injustice that would require a new trial. The record is

devoid of any indication that the trial court acted in an unreasonable or

arbitrary manner.       Nor has Jessee alleged that the trial court acted with

partiality, prejudice, bias, or ill will. The jury, as the fact-finder, was free to

evaluate the victim’s testimony and to determine the weight that should be

assigned to the evidence. Commonwealth v. Johnson, 668 A.2d 97, 101

(Pa. 1995).

         The jury, unlike this Court, was able to observe K.W’s demeanor at

trial.    The jury also was free to compare the specificity of K.W’s original

account with her imprecise repudiation at trial. Indeed, K.W. testified at trial

that she had only had sex with Jessee once or twice, but was unable to recall

exactly where or when those events took place.             Despite K.W.’s detailed



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chronicle of events ten months earlier, she testified at trial that “drugs”

adversely affected her memory at the time of Jessee’s preliminary hearing.

N.T. at 78. Finally, the Commonwealth presented evidence which the jury

may have found to be probative of K.W.’s motive to recant her allegations.

Specifically, Sergeant Layden testified that K.W. initially stated that she was

concerned that Jessee may try to harm their daughter. Id. at 91.

      In rendering a guilty verdict, the jury clearly indicated that it found the

victim’s preliminary hearing testimony to be credible and her later

renunciation at Jessee’s trial to be incredible. The trial court did not abuse

its discretion in denying Jessee’s motion for judgment of acquittal.

      Although we reject the sole issue that Jessee has raised on appeal, our

inquiry cannot end there. The trial court sentenced Jessee pursuant to 42

Pa.C.S. § 9718(a)(1), a mandatory minimum sentencing provision which this

Court has since declared unconstitutional. See Commonwealth v. Wolfe,

106 A.3d 800 (Pa. Super. 2014). Accordingly, Jessee is entitled to a new

sentencing hearing.

      We begin by noting that a challenge to the legality of a sentence is

non-waivable and may be raised by this Court sua sponte. Commonwealth

v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014) (citation omitted). We

further note that issues pertaining to the United States Supreme Court’s

decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013),

directly implicate the legality of the sentence.          Commonwealth v.

Lawrence, 99 A.3d 116, 122-25 (Pa. Super. 2014). With this in mind, we

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proceed by noting our well-settled standard of review for 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. Commonwealth
      v. Borovichka, 18 A.3d 1242, 1254 (Pa. Super. 2011) (citation
      omitted).    It is also well-established that “[i]f no statutory
      authorization exists for a particular sentence, that sentence is
      illegal and subject to correction.” Commonwealth v. Rivera,
      95 A.3d 913, 915 (Pa. Super. 2014) (citation omitted). “An
      illegal sentence must be vacated.” Id. “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.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.
      Super. 2014) (citations omitted).

Wolfe, 106 A.3d at 801-02.

      Instantly, Jessee was sentenced pursuant to 42 Pa.C.S. § 9718(a)(1),

which provides as follows:

      (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.

                                *     *     *

      (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



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      additional evidence and shall determine, by a preponderance of
      the evidence, if this section is applicable.

42 Pa.C.S. § 9718(a)(1).

      In Alleyne, the United States Supreme Court held that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

must be found beyond a reasonable doubt.        Alleyne, supra at 2163.    In

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), we discussed

the relevant portion of the Alleyne Court’s rationale:

      Alleyne is an extension of the Supreme Court’s line of cases
      beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000).
      In Alleyne, the Court overruled Harris v. United States, 536
      U.S. 545 (2002), in which the Court had reached the opposite
      conclusion, explaining that there is no constitutional distinction
      between judicial fact[-]finding which raises the minimum
      sentence and that which raises the maximum sentence.

         It is impossible to dissociate the floor of a sentencing
         range from the penalty affixed to the crime. Indeed,
         criminal statutes have long specified both the floor and
         ceiling of sentence ranges, which is evidence that both
         define the legally prescribed penalty.       This historical
         practice allowed those who violated the law to know, ex
         ante, the contours of the penalty that the legislature
         affixed to the crime—and comports with the obvious truth
         that the floor of a mandatory range is as relevant to
         wrongdoers as the ceiling.       A fact that increases a
         sentencing floor, thus, forms an essential ingredient of the
         offense.

         Moreover, it is impossible to dispute that facts increasing
         the legally prescribed floor aggravate the punishment.
         Elevating the low-end of a sentencing range heightens the
         loss of liberty associated with the crime: the defendant’s
         expected punishment has increased as a result of the
         narrowed range and the prosecution is empowered, by
         invoking the mandatory minimum, to require the judge to
         impose a higher punishment than he might wish. Why
         else would Congress link an increased mandatory

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          minimum to a particular aggravating fact other than to
          heighten the consequences for that behavior? This reality
          demonstrates that the core crime and the fact triggering
          the mandatory minimum sentence together constitute a
          new, aggravated crime, each element of which must be
          submitted to the jury.

        Alleyne, [133 S.Ct.] at 2160-61 (internal quotation marks and
        citations omitted).

Miller, 102 A.3d at 994-95 (citations modified).

        In light of the constitutional pronouncement in Alleyne, we have

systematically been declaring unconstitutional Pennsylvania’s mandatory

minimum sentencing statutes that permit a trial court, rather than a jury, to

make the critical factual findings for sentencing.      See Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (holding 42 Pa.C.S. § 9712.1,

which imposes a mandatory minimum sentence for possessing a firearm in

close    proximity   to   narcotics,    unconstitutional);   Commonwealth      v.

Valentine, 101 A.3d 801 (Pa. Super. 2014) (holding 42 Pa.C.S. § 9712,

pertaining to mandatory minimum sentencing provisions associated with the

commission      of   certain   crimes     with   a   firearm,   unconstitutional);

Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014) (applying

Alleyne and recognizing that the mandatory minimum sentences associated

with the weight of narcotics possessed by a drug dealer pursuant to 18

Pa.C.S. § 7508 are unconstitutional).

        In Wolfe, supra, we considered the constitutionality of section 9718,

the statute at issue in the case sub judice.           There, the appellant was

sentenced to a mandatory minimum sentence of ten to twenty years


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pursuant to 42 Pa.C.S. § 9718(a)(1), following his conviction for involuntary

deviate sexual intercourse with a person less than sixteen years-old. Id. at

802. Citing Alleyne, Newman, and Valentine, we held that section 9718

was facially unconstitutional because the elements of the “proof at

sentencing” provision required a trial judge, rather than a jury, to make

factual findings by a preponderance of the evidence, and not beyond a

reasonable doubt.        Wolfe, 106 A.3d at 805.           Because the trial court

sentenced Jessee pursuant to the same “proof at sentencing” provision as in

Wolfe, its application herein was similarly unconstitutional.3

       In sum, we reject Jessee’s contention that the jury’s verdict was

against the weight of the evidence.                We vacate Jessee’s judgment of

sentence, and we remand this case for resentencing without consideration of

the ten-year mandatory minimum sentencing provision.

____________________________________________


3
      Although the additional fact that triggered Jessee’s mandatory
sentence (i.e., the victim’s age being less than sixteen at the time of the
offense) is also contained as an element of the offense for which he was
convicted, Jessee’s sentence was nonetheless illegal. See Wolfe, 106 A.3d
at 806 (“[A]lthough the jury was required to find that the victim was less
than 16 years of age in order to convict Appellant, . . . mandatory minimum
sentence statutes in Pennsylvania of this format are void in their entirety.”).
Wolfe makes clear that the “proof at sentencing” provision contained in 42
Pa.C.S. § 9718 is not severable from the section’s other provisions, and the
entire statute is facially void. Id.; see also Commonwealth v. Hopkins,
___ A.3d.___, 2015 WL 3949099, at *13 (Pa. June 15, 2015) (holding that
the “proof at sentencing” provision contained in 18 Pa.C.S. § 6317 (relating
to drug crimes committed in school zones) could not be severed without
usurping the role of the legislature).




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      Judgment of sentence vacated.    Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2015




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