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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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