Com. v. Peters, G.

J-S69009-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. GENE PETERS Appellant No. 2498 EDA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: ____________________________________________ 1 18 Pa.C.S.A. § 3123(a)(7). J-S69009-14 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 ____________________________________________ 2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). -2- J-S69009-14 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). -3- J-S69009-14 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 ____________________________________________ 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). -4- J-S69009-14 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. ____________________________________________ 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. -5- J-S69009-14 (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, -6- J-S69009-14 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. 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