J-A22042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANGEL L. MARTINEZ
Appellant No. 1994 MDA 2015
Appeal from the Judgment of Sentence March 27, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001838-2013;
CP-67-CR-0001839-2013; CP-67-CR-0002199-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 14, 2016
Appellant, Angel L. Martinez, appeals nunc pro tunc from the judgment
of sentence entered in the York County Court of Common Pleas, following his
jury trial convictions of three counts each of unlawful contact with a minor
and sexual assault, two counts each of aggravated indecent assault of a
child, indecent assault of a child less than 13, and incest, and one count
each of rape of a child, rape by forcible compulsion, involuntary deviate
sexual intercourse (“IDSI”) with a child, corruption of a minor, terroristic
threats, and indecent assault without consent.1 We affirm the convictions
but vacate the judgment of sentence and remand for re-sentencing.
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1
18 Pa.C.S.A. §§ 6318(a)(1); 3124.1; 3125(b); 3126(a)(7); 4302; 3121(c);
3121(a)(1); 3123(b); 6301(a)(1); 2706(a)(1); and 3126(a)(1), respectively.
J-A22042-16
The relevant facts and procedural history of this case can be briefly
summarized as follows. The Commonwealth charged Appellant with
numerous offenses in three separate actions, which the court consolidated,
arising from his sexual abuse of his three minor daughters. On December
12, 2013, a jury convicted Appellant of rape of a child, rape by forcible
compulsion, IDSI with a child, aggravated indecent assault of a child, incest,
sexual assault, and related offenses. On March 27, 2014, the court
sentenced Appellant to an aggregate term of 81½ to 163 years’
imprisonment, which included some mandatory minimum terms pursuant to
42 Pa.C.S.A. § 9718. Appellant timely filed a post-sentence motion on April
7, 2014. In his post-sentence motion, Appellant requested credit for time
served, challenged the weight of the evidence, and objected to the
imposition of mandatory minimum sentences in light of Alleyne v. United
States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). On June 9,
2014, the court granted Appellant’s motion in part only to credit Appellant
for time served.
Appellant filed a timely notice of appeal on July 3, 2014. On March 10,
2015, this Court dismissed the appeal for counsel’s failure to file a brief. On
August 12, 2015, Appellant filed a motion for a new trial, which the PCRA
court treated as Appellant’s first PCRA petition. The PCRA court reinstated
Appellant’s direct appeal rights on October 26, 2015. Appellant filed a timely
notice of appeal nunc pro tunc on November 12, 2015. On November 24,
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2015, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b); and Appellant
timely complied on December 21, 2015.
Appellant raises two issues for our review:
WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF
THE EVIDENCE TO THE POINT THAT THE VERDICT
SHOCKS ONE’S SENSE OF JUSTICE?
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION IN DENYING [APPELLANT’S] MOTION FOR
POST-SENTENCE RELIEF IN WHICH [APPELLANT] RAISED
HIS OBJECTION TO THE IMPOSITION OF THE MANDATORY
SENTENCES IMPOSED BY THE TRIAL COURT AT THE TIME
OF [APPELLANT’S] SENTENCING WHICH [APPELLANT]
BELIEVES [IS] IN VIOLATION OF ALLEYNE?
(Appellant’s Brief at 4).
In his first issue, Appellant argues his three daughters’ testimony
indicated none of the daughters recalled when the sexual assaults occurred
and details about the assaults. Appellant submits his daughters said they
had not discussed the sexual assaults with each other. Appellant asserts his
daughters’ descriptions of the assaults were general and identical, which
suggests his daughters had an ulterior motive to allege Appellant committed
the charged offenses. Appellant claims his brother also testified that he did
not see or hear any inappropriate behavior when Appellant’s daughters
visited during the 3½ years Appellant and his brother lived together.
Appellant maintains the trial court abused its discretion when it denied relief
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on Appellant’s challenge to the weight of the evidence. Appellant concludes
this Court should reverse and discharge Appellant. We disagree.
Our standard of review for a challenge to the weight of the evidence is
as follows:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse the lower
court’s verdict if it is so contrary to the evidence as to
shock one’s sense of justice. Moreover, where the trial
court has ruled on the weight claim below, an appellate
court’s role is not to consider the underlying question of
whether the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight
claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted). “[C]redibility determinations are made by the
fact finder and…challenges thereto go to the weight, and not the sufficiency,
of the evidence.” Commonwealth v. Gaskins, 692 A.2d 224, 227
(Pa.Super. 1997). See also Commonwealth v. Griffin, 65 A.3d 932
(Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (stating
defendant’s claim he was wrongly identified as perpetrator of crimes based
on “unbelievable identification testimony” went to witness’ credibility and
challenged weight, not sufficiency, of evidence). The remedy for a challenge
to the weight of the evidence is a new trial. See, e.g., Commonwealth v.
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Smith, 853 A.2d 1020 (Pa.Super. 2004) (explaining remedy for challenges
to sufficiency of evidence is judgment of acquittal; remedy for challenges to
weight of evidence is new trial).
Instantly, the trial court reasoned as follows regarding Appellant’s
weight challenge:
The trial judge determined that the verdict was supported
by the evidence by denying [Appellant]’s post-sentence
motion on June 9, 2014. We see no error in this
determination. The jury in these three cases heard from
the three victims, Detective Kyle Hower, and [Appellant]’s
witness, his brother. The jury being the fact-finder was
“free to believe all, part, or none of the evidence to
determine the credibility of the witnesses.” After hearing
all the testimony and weighing the evidence and
witnesses[’] credibility, the jury found [Appellant] guilty on
all charges. We do not find this verdict shocked the
conscience and find it was in-fact supported by the
evidence. The court therefore disagrees that the verdict
was against the weight of the evidence.
(Trial Court Opinion, filed February 5, 2016, at 4) (internal footnote
omitted). The record supports the trial court’s reasoning. Thus, we see no
reason to disturb the court’s decision to deny relief on Appellant’s challenge
to the weight of the evidence. See Champney, supra.
In his second issue, Appellant argues 42 Pa.C.S.A. § 9718 is
unconstitutional pursuant to Alleyne and its Pennsylvania progeny.
Appellant maintains his mandatory minimum sentences under Section 9718
are illegal. Appellant concludes this Court should vacate the judgment of
sentence and remand for re-sentencing. We agree.
In Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186
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L.Ed.2d 314 (2013), the United States Supreme Court 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. Alleyne, supra. The Pennsylvania Supreme Court
recently addressed the constitutionality of Section 9718 in light of Alleyne
in Commonwealth v. Wolfe, ___ Pa. ___, 140 A.3d 651 (June 20, 2016).2
Wolfe observed “Section 9718 does plainly and explicitly require judicial
fact-finding in its subsection (c). Moreover, since subsection (c) is integral
to the statute, Section 9718(a) does not stand alone.” Wolfe, supra at
___, 140 A.3d at 660-61 (internal citations omitted). The Court noted
Section 9718(c) still required the sentencing court to determine a victim’s
age at sentencing to impose sentences for offenses under Section 9718(a),
even though the fact-finder might have already decided the victim’s age
when it reached a verdict. Id. at ___, 140 A.3d at 661. Relying on
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2
At the time of Appellant’s sentencing, Section 9718 established mandatory
minimum terms for offenses committed against minors less than 16 years of
age. For example, Section 9718 in relevant part required several mandatory
minimum sentences, including: 10 years’ imprisonment for rape; 10 years’
imprisonment for IDSI; and 5 years’ imprisonment for aggravated indecent
assault. 42 Pa.C.S.A. § 9718(a)(1). Section 9718 also established relevant
mandatory minimum sentences without express reference to the victim’s age
for several offenses, including: 15 years’ imprisonment for rape of a child; 5
years’ imprisonment for aggravated indecent assault of a child less than 13
years old; and 10 years’ imprisonment for aggravated indecent assault of a
child. 42 Pa.C.S.A. § 9718(a)(3). Section 9718(c) stated provisions of
Section 9718 shall not be an element of the crime, and the court shall
determine their applicability by a preponderance of the evidence at
sentencing. 42 Pa.C.S.A. § 9718(c).
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Alleyne, Wolfe held that Section 9718 could no longer pass constitutional
muster as it created a “distinct and aggravated crime” because the “statute’s
directive for judicial fact-finding attaches to that aggravated crime
notwithstanding a jury verdict; and that sentencing judges are not free to
disregard such explicit legislative mandates by substituting their own
procedures.” Id. (quoting Alleyne, supra). Wolfe further held the non-
offending provisions of Section 9718 were not severable, and the statute
was unconstitutional and void in its entirety. Id. at ___, 140 A.3d at 661-
63.
Instantly, the trial court sentenced Appellant to mandatory minimum
terms of incarceration for several of his convictions, pursuant to Section
9718. Under Wolfe, Appellant is entitled to a remand for re-sentencing
without application of any unlawful mandatory minimum sentences.
Accordingly, we affirm Appellant’s convictions, but we vacate the judgment
of sentence in its entirety and remand for re-sentencing without imposition
of mandatory minimum terms. See Commonwealth v. Bartrug, 732 A.2d
1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999)
(holding sentencing error in multi-count case normally requires appellate
court to vacate entire judgment of sentence so trial court can restructure its
sentencing plan on remand).
Judgment of sentence vacated; case remanded for re-sentencing.
Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2016
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