Com. v. Min, J.

J. 583010/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
' PENNSYLVANIA
v.
JOSEPH MIN, : No. 29 WDA 2016
Appellant

Appeal from the Order, December 10, 2015,
in the Court of Common Pleas of A||egheny County
Criminal Division at No. CP-OZ-CR-OOOl894-2013

BEFORE: FORD ELLIO`|_|', P.J.E., SHOGAN AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIO`|_|', P.J.E.: FILED APRIL 12, 2017

Joseph Min appeals from the order of December 10, 2015. Appellant
Was resentenced following the filing of a timely PCRA1 petition challenging
the legality of his sentence and also raising several claims of trial counsel
ineffectiveness. The trial court agreed to resentence appellant but denied
PCRA relief in all other respects. After careful review, we affirm the trial
court's disposition of appellant's ineffectiveness claims, but vacate the
judgment of sentence and remand for resentencing.

Following a jury trial held January 27-31, 2014, before the Honorable

Donna Jo McDaniel, appellant Was found guilty of multiple sexual offenses

* Retired Senior Judge assigned to the Superior Court.

1 Post-conviction Relief Act, 42 Pa.c.s.A. §§ 9541-9546.

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including three counts of involuntary deviate sexual intercourse (“IDSI") --
person under 16 years of age, unlawful contact with a minor, aggravated
indecent assault, statutory sexual assault, indecent exposure, corruption of
minors, and indecent assault.2 The charges related to appellant's ongoing
sexual relationship with the victim, S.E., in 2006 and 2007 when the victim
was 14 and 15 years old. At the time, appellant was 28 and 29 years old.
Appellant was represented by the public defender's office at trial.

Prior to sentencing, appellant retained new counsel, David S.
Shrager, Esq. On May 1, 2014, appellant received an aggregate sentence of
25 to 55 years' imprisonment. Appellant was also found to meet the
statutory criteria for sexually violent predator (“SVP”) status. No
post-sentence motions were filed; however, appellant filed a timely direct
appeaL

Attorney Shrager passed away suddenly during the pendency of
appellant's appeal. New counsel, Samir Sarna, Esq., was retained to
represent appellant. Attorney Sarna determined that any issues of possible
merit were not properly preserved at trial by motion or objection, and
advised appellant to discontinue his direct appeal and file a PCRA petition.
On January 8, 2015, appellant's appeal was discontinued. Commonwealth

v. Min, No. 886 WDA 2014 (Pa.Super. filed Jan. 8, 2015).

2 18 Pa.C.S.A. §§ 3123(a)(7), 6318(1), 3125(a)(8), 3122.1, 3127,
6301(a)(1), & 3126(a)(8), respectively.

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A timely, counseled PCRA petition was filed by Attorney Sarna on
appellant's behalf on May 11, 2015. Appellant alleged, inter alia, that his
sentence was illegal because the maximum was more than twice the
minimum in violation of 42 Pa.C.S.A. § 9718.2(b).3 Appellant also raised
various claims of trial counsel ineffectiveness. In its answer, the
Commonwealth agreed that appellant's sentence was illegal but argued that
his ineffectiveness claims were without merit.

On December 10, 2015, a PCRA hearing was held before
Judge McDaniel, at which trial counsel, David O'Bara, Esq., testified.
Following the hearing, appellant was resentenced to an aggregate of 25 to
50 years' imprisonment.4 Appellant's petition was denied in all other

respects. A timely notice of appeal was filed on January 5, 2016. On

3 As discussed further infra, 42 Pa.C.S.A. § 9718.2, “Sentences for sexual
offenders," provides for a 25-year mandatory minimum sentence for repeat
sex offenders. Section 9718.2(b) provides,

(b) Mandatory maximum.--An offender
sentenced to a mandatory minimum sentence
under this section shall be sentenced to a
maximum sentence equal to twice the
mandatory minimum sentence,
notwithstanding 18 Pa.C.S. § 1103 (relating to
sentence of imprisonment for felony) or any
other provision of this title or other statute to
the contrary.

4 Appellant received consecutive sentences on each count of IDSI as follows:
count 1, 10 to 20 years; count 2, 10 to 20 years; and count 3, 5 to
10 years. Appellant received a determination of guilty without further
penalty on the remaining charges. (Docket #26.)

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January 13, 2016, appellant was ordered to file a concise statement of errors

complained of on appeal

pursuant to Pa.R.A.P. 1925(b) on or before

March 9, 2016. Appellant filed a Rule 1925(b) statement on March 7, 2016;

and on June 9, 2016, the trial court filed a Rule 1925(a) opinion.

Appellant has raised the following issues for this court's review:

I. Is petitioner's claim for relief properly
cognizable under the [PCRA]?

II. Did the lower court err in dismissing the PCRA
petition where trial counsel was ineffective for

failing to

request a jury instruction that

Jessie Padjune's testimony regarding what the
alleged victim told her about [appellant], was
admitted for a limited purpose, and that her
testimony was not to be considered as
substantive evidence against [appellant]; and

appellate

counsel was ineffective for not

preserving this issue in post-trial motions and
for not raising it on appeal?

III. Did the lower court err in dismissing the PCRA
petition where trial counsel was ineffective for
not filing a motion in limine to preclude the
testimony of Justin Smith, and/or not objecting
to the admission of this testimony, on the
grounds that it was not relevant or probative
and prejudiced [appellant]?

IV. Did the lower court err in dismissing the PCRA
petition where trial counsel was ineffective for

eliciting

testimony regarding [appellant]'s

illegal drug use, and for failing to submit a
motion in limine, object to and move for a

mistrial,

or at least request a limiting

instruction on [appellant]'s illegal drug use?

V. Did the lower court err in dismissing the PCRA
petition where trial counsel was ineffective for

submitting

photographs of [appellant]'s

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genitalia insofar as the pictures were offensive
and served only to inflame the jury, and
counsel could have presented evidence of the
unique characteristics of the genitalia by other
non-offensive means?

VI. Did the lower court err in dismissing the PCRA
petition where counsel was ineffective for not
filing a post[-]sentence motion contending that
the court abused its discretion in imposing an
aggregate sentence of 25 to 55 years[']
imprisonment, which exceeded the mandatory
maximum sentence, insofar as the court failed
to state any reasons for exceeding the
mandatory term, which sentence was
excessive, based on the alleged circumstances
of the crimes, and the fact that the age of the
alleged victim, consideration for the protection
of society, and [appellant]'s history and
background have already been accounted for
by the application of Sections 9718.2 and
9795.1 requiring lifetime registration?

Appellant's brief at 5-6 (capitalization deleted).

“When reviewing an order [granting or] denying PCRA relief, we must
determine whether the PCRA court's determination is supported by the
record and is free from legal error." Commonwealth v. Poplawski, 852
A.2d 323, 327 (Pa.Super. 2004) (citation omitted).

To prevail on a claim that counsel was
constitutionally ineffective, the appellant must
overcome the presumption of competence by
showing that: (1) his underlying claim is of arguable
merit; (2) the particular course of conduct pursued
by counsel did not have some reasonable basis
designed to effectuate his interests; and (3) but for
counsel's ineffectiveness, there is a reasonable
probability that the outcome of the challenged
proceeding would have been different. A failure to

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satisfy any prong of the test for ineffectiveness will
require rejection of the claim.

Commonwealth v. Malloy, 856 A.2d 767, 781 (Pa. 2004) (citations
omitted). “We presume counsel is effective and place upon Appellant the
burden of proving otherwise. Counsel cannot be found ineffective for failing
to pursue a baseless or meritless claim.” Poplawski, 852 A.2d at 327
(citations omitted).

In his first substantive claim on appeal, appellant argues that trial
counsel was ineffective for failing to request a limiting instruction regarding
Jessie Padjune's (“Padjune") testimony.5 Padjune, S.E.'s best friend,
testified regarding statements made by S.E. concerning the nature of her
relationship with appellant. The relevant portion of Padjune's testimony is
as follows:

Q. Now, outside of seeing things like sitting on his
lap, kissing him, that type of thing, did they
ever talk about a romantic relationship?

A. Yes.

Q. And what sorts of things did they say?

A. Because [S.E.] was my best friend and I didn't
have any sexual relationship I was always

5 Appellant also claims that Attorney Shrager was ineffective for not raising
this issue in post-trial motions or on appeal. However, if Attorney O'Bara
never requested a limiting instruction, then obviously the issue would be
considered waived for purposes of post-trial motions or on appeal. See
Pa.R.A.P. 2119(e) (statement of place of raising or preservation of issues);
Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and cannot
be raised for the first time on appeal). Therefore, we will simply address it
as a claim of trial counsel ineffectiveness.

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worried that something was going on. And I
would ask her, “So how is it between you two,
is there any abuse going on," just because I
was pessimistic. And I just wanted to make
sure she was okay. And she would tell me
when they had different steps in their
relationship, when they started messing
around, and stuff like that. So I knew that
they had a sexual relationship.

MR. O[']BARA: I am going to object. Hearsay.

THE COURT: I will sustain.

[ADA PHILLIP] HoNG-BARco: very well.

THE COURT: Actually, I am going to reverse myself
and overrule.

MR. HONG-BARCO: Thank you.

BY MR. HONG-BARCO:

Q.

A.

You may continue.

She would talk to me about it, and a lot of the
times she would talk to me about different
stages in the relationship. He was also in the
car when we were driving around because they
were very open about their relationship with
me and some of my other friends.

Let me stop you, before we go to the car were
these statements the basis for why you
thought there were romantic things going on?
Did it form part of the basis?

Part of it.
So can you continue with -- you mentioned

something that happened in a car, can you
continue with that, please.

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A.

We would just drive around, and they would
talk about things that they had experimented
with because I was a virgin and I didn't know
anything was going on with my life so they
would tell me what was going on with theirs.

Are these the types of things, experimenting,
so to speak, when you were a teenager that
you might talk about with other girl friends,
too?

A couple, just like the ones in the main group,
like Kristin or Destiny.

What specifically was said?

They would just say like if they had started --

I am sorry -- okay. When you say they you
are talking about the defendant and [S.E.]?
Okay. Go ahead.

Yes, that they would start touching each other
or having oral sex.

MR. O[']BARA: Again, I am going to object. These
are things that are being said by someone else, and
they are being offered --

THE COURT: These are things that were alleged to
have been said by the victim and by the defendant.

MR. HONG-BARCO: That'S right.

THE COURT: Let's be specific to who is saying what.

MR. HONG-BARCO: Very well.

BY MR. HONG-BARCO:

Q.

Why don't we limit it to things that the
defendant said relating to these sex acts.

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A.

Q.

A.

Okay. Usually it was just the victim, but the
defendant was in the car. There were --

I'm sorry, did he ever refute any of that?
No.

Now, you recall the things that came out of his
mouth?

A few different times he would talk about porn
and different things that happened at his
apartment between them. Also there was one
time where he said that me or my friend
Kristin would be his two options if we were
ever to have a threesome with someone.

I am sorry, you, Kristin and who?

[S.E.].

Okay. So you and Kristin would be the options
for his threesome?

With [S.E.].
And you or Kristin?

Yes.

Notes of testimony, 1/27-31/14 at 140-143.

Appellant argues that Attorney O'Bara was

ineffective for

not

requesting a limiting instruction that S.E.'s statements to Padjune were only

admissible as prior consistent statements under Pa.R.E. 613(c) and not as

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substantive evidence of appellant's guilt.6 On cross-examination, S.E.
admitted that in 2008, when appellant started coming around less
frequently, she became resentful and angry. (Id. at 127.) S.E. also
testified that she and appellant finally broke up when she discovered he was
cheating on her with his current wife, Brandy. (Id. at 53, 126.) She found
text messages from Brandy on his phone asking for sex after a narcotics
anonymous meeting. (Id. at 53.) The relationship did not end on good
terms, and eventually S.E. told appellant not to come around her or her

family anymore. (Id. at 54.)

6 (c) Witness’s Prior Consistent Statement to
Rehabi|itate. Evidence of a witness's prior
consistent statement is admissible to
rehabilitate the witness's credibility if the
opposing party is given an opportunity to
cross-examine the witness about the
statement and the statement is offered to
rebut an express or implied charge of:
(1) fabrication, bias, improper influence or
motive, or faulty memory and the statement
was made before that which has been charged
existed or arose; or (2) having made a prior
inconsistent statement, which the witness has
denied or explained, and the consistent
statement supports the witness's denial or
explanation.

Pa.R.E. 613(c). “[A] prior consistent statement is always received for
rehabilitation purposes only and not as substantive evidence."
Commonwealth v. Busanet, 54 A.3d 35, 67 (Pa. 2012), quoting
Commonwealth v. Baumhammers, 960 A.2d 59, 89 (Pa. 2008), citing
Pa.R.E. 613, Comment.

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Therefore, because S.E.'s credibility was attacked by defense counsel,
appellant theorizes that Padjune's testimony could have been admissible as
prior consistent statements of the victim. However, Judge McDaniel never
stated why she reversed herself and overruled Attorney O'Bara's hearsay
objection. There was no discussion of Rule 613(c) on the record. Padjune's
testimony was not expressly admitted for purposes of rehabilitating the
witness under Rule 613(c), so there was no reason for Attorney O'Bara to
ask for a limiting instruction on those grounds.

Attorney O'Bara's first objection was overruled; the second time, the
trial court instructed the Commonwealth to “be specific to who is saying
what." (Id. at 142.) ADA Hong-Barco then told Padjune to limit her
testimony to statements made by appellant. (Id.) Appellant's statements
are admissible under Pa.R.E. 803 as admissions by a party opponent. In
addition, Padjune testified that appellant was present when S.E. made these
incriminating statements and did not refute them. (Id. at 141-143.) We
determine that the underlying issue lacks arguable merit and
Attorney O'Bara was not ineffective for failing to request a limiting
instruction.

Next, appellant argues that Attorney O'Bara was ineffective for failing
to object to Justin Smith's (“Smith") testimony on the grounds that it was
irrelevant and prejudicial. Smith, Padjune's fiancé, testified that appellant

and S.E. had a sexual relationship. However, appellant argues that Smith's

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testimony was irrelevant because it related to the time period after S.E.
turned 16 years old.

Relevant evidence is that which, either taken alone

or in connection with other evidence, tends to prove

or disprove some material issue in the case. Stated

another way, to establish relevancy we ask whether

the evidence sheds light upon or advances the

inquiry in which the fact-finder is involved. If the

evidence in question is logically relevant it is

admissible unless the trial court, in its discretion,

determines that its potential prejudicial impact

outweighs its probative value.
Commonwealth v. Brown, 911 A.2d 576, 584 (Pa.Super. 2006), appeal
denied, 920 A.2d 830 (Pa. 2007) (citation omitted).

Smith testified that when he first met Padjune and S.E. in April 2009,
they were both 16 years old. (Id. at 157.) Smith was 20 years old at the
time. (Id.) Smith also met appellant, who they called “Asian Joe" and
referred to as S.E.'s boyfriend. (Id. at 158.) Smith testified that appellant
and S.E. would hug and kiss each other, and tell each other “I love you.”
(Id. at 161-162.) Smith also testified that at one point appellant and S.E.
broke up. (Id. at 160.) Appellant subsequently approached Smith and
Padjune and confessed that he still had feelings for S.E. and wanted to get
back together. (Id.)

The jury could fairly infer from Smith's testimony that appellant and
S.E. had a pre-existing relationship, that they had not just begun dating. In

addition, appellant vehemently denied any sort of sexual or romantic

relationship with S.E. whatsoever, at any time. (Id. at 174, 214-216.)

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Therefore, the testimony went to credibility. We also note that appellant
was charged with corruption of minors, which includes children under the
age of 18 years. Smith's testimony was relevant and admissible, and
Attorney O'Bara cannot be found ineffective on this basis.

Next, appellant argues that Attorney O'Bara was ineffective for eliciting
testimony regarding appellant's illegal drug use and/or failing to request a
cautionary instruction. According to appellant, this constituted inadmissible
“other crimes” evidence and was highly prejudicial. We disagree.

As a general rule, a defendant's prior bad acts, including convictions,
are not admissible to prove criminal propensity or bad character.
Commonwealth v. Paddy, 800 A.2d 294, 307 (Pa. 2002). However, such
evidence will be allowed where the other crime or bad act “was part of a
chain or sequence of events which formed the history of the case and was
part of its natural development.” Commonwealth v. Stiffler, 657 A.2d
973, 976-977 (Pa.Super. 1995) (citations omitted). See Commonwealth
v. Burton, 770 A.2d 771, 778 (Pa.Super. 2001), appeal denied, 868 A.2d
1197 (Pa. 2005), overruled on other grounds by Commonwealth v.
Mouzon, 812 A.2d 617 (Pa. 2002) (evidence of other crimes, wrongs, or
bad acts is admissible where they were part of a chain or sequence of events
which formed the history of the case and were part of its natural
development, also known as the “complete story" rationale (citations

omitted)).

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Appellant's past drug use was relevant and formed part of the natural
development of the facts of the case because he met S.E.'s mother in drug
treatment. (Notes of testimony, 1/27-31/14 at 35.) S.E. testified that her
mother met appellant through a mutual friend, Robert Brown (“Brown”).
(Id.) They were all receiving treatment for drug and alcohol addiction.
(Id.) Brown and appellant were living together at a halfway house called
the “Cash Club” in McKees Rocks, which stands for the Clean And Sober
Association. (Id. at 35, 200.) S.E. testified that she would often attend
their meetings and spend time at the Cash Club playing pool. (Id. at 37.)7
This information was important to establish how the relationship between
S.E. and appellant began. As Attorney O'Bara explained at the PCRA
heanng:

I didn't make objections because I really -- I
didn't see how that could have been omitted.
When [S.E.] testified on direct examination she
described how she knew [appellant]. It
became -- the information was elicited that he
was friends with her mother, and they met at
the drug rehabilitation facility. So in addition
to it being brought out immediately as part of
the direct examination of [S.E.], [appellant]
chose to testify as well. That was a significant
portion of his narrative. I mean it established
how, in fact, he knew the family. I did not --
to answer your question, I did not object to it
being raised because I don't really see in what
capacity it could have been objected to. It was
pretty fundamental to their entire story.

7 S.E. herself did not use any drugs or alcohol. (Id. at 100-101.)

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Q. So it's your position that the testimony
regarding the illegal drug use would have been
relevant to the trial?

A. It's not relevant to the dispositive issue as to
what the nature of their relationship was. The
dispositive issue in that case was, what is the
nature of their relationship? Is it sexual or not
sexual? I don't see how it could have been
removed from the narrative.

Notes of testimony, 12/10/15 at 8-9.

We agree. Clearly, appellant's drug addiction was admissible to
explain how he met S.E. and her family. Attorney O'Bara would have had no
basis to object to this testimony. See Commonwealth v. Molina, 897
A.2d 1190 (Pa.Super. 2006), appeal denied, 903 A.2d 1233 (Pa. 2006)
(finding trial counsel was not ineffective in failing to object to the
prosecutor's questioning of the victim and the appellant regarding the
appellant's illegal immigration status since such evidence was part of a chain
or sequence of events and not unduly prejudicial). Indeed, as the
Commonwealth points out, it was in appellant's best interest to explain to
the jury how he came to know a 14-year-old girl. (Commonwealth's brief at
30.)

In addition, the testimony that appellant was a recovering addict was
not particularly prejudicial where there was no evidence that appellant was
ever convicted of any drug crimes and he had not relapsed. Even S.E.

testified that appellant was clean and sober. (Notes of testimony,

1/27-31/14 at 39-40.) In fact, S.E. testified that one reason appellant

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stopped coming around was because her mother relapsed. (Id. at 125-
126.) This claim fails.

Next, appellant contends that Attorney O'Bara rendered ineffective
assistance by submitting photographs of appellant's genitalia. S.E. testified
on cross-examination that appellant did not have anything out of the
ordinary about his genitalia. (Id. at 128.) Appellant did have a tattoo of an
Egyptian Eye of Horus on his waist area, in proximity to his genitalia. (Id.
at 63-64, 128.) However, to S.E.'s knowledge, there were no distinguishing
marks on appellant's genitals. (Id. at 128.)

Appellant testified that his genitals are discolored. (Id. at 226.)
Specifically, appellant testified that there is a large black and blue mark on
the bottom portion of his genitalia. (Id.) According to appellant, he has had
this condition since birth. (Id.) Attorney O'Bara confirmed to the trial court
that he personally viewed appellant's genitalia that morning and there was,
in fact, a discoloration. (Id. at 225.) Attorney O'Bara also offered two
photographs into evidence which the trial court initially refused to allow as
offensive. (Id.) However, following appellant's testimony the trial court
agreed to allow them into evidence:

(The following is a sidebar discussion.)

MR. O'BARA: Before closing the defense's case I
would like to officially put on the record an objection
to the ruling as to inadmissibility of the photos of
[appellant]'s genitalia. First off, I can probably

authenticate the photographs; secondly, I would
argue they are a piece of evidence, while graphic in

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nature, that can substantially rebut the testimony of
[S.E.].

MR. HONG-BARCO: There is nothing to authenticate
that those markings were on the man's penis seven
years ago.

THE COURT: You know what, you can all stand up
and stretch.

MR. HONG-BARCO: I have no objection to them
seeing the photos. I really don't. However, I would
like the photos to be dated.

THE COURT: They are what they are. If you don't
have any objection we will admit them as Defense B
and C.

MR. HONG-BARCO: May I see them?

MR. O'BARA: Sure.

THE COURT: And Ijust put -- I have tried to put it
on the verdict slip. Okay. That being said, I will tell
the jury we are admitting the two photographs.

MR. O'BARA: Do you want me to authenticate them
through [appellant]?

THE COURT: It's okay.
MR. HONG-BARCO: Is there a date on the back?

THE COURT: Let's just take Mr. O'Bara's word for it.
Okay.

MR. HONG-BARCO: That is fine.
(Sidebar concluded.)

THE COURT: Ladies and gentlemen of the jury, at
Mr. O'Bara's request we are going to mark two

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photographs as Defendant's B and C. They are
photographs of the defendant's penis. They will both
be admitted and be available to you in your
deliberations.

Notes of testimony, 1/27-31/14 at 241-243.
At the PCRA hearing, Attorney O'Bara testified that appellant was
adamant that the photographs be admitted into evidence:

I did not want to submit that photograph to
the jury. [Appellant] was pretty insistent
about that. He had indicated to me, in
preparation for the trial, that his genitalia had
a deformity. I had one of my investigators
Paul Catania meet with [appellant] and take
photographs of his genitalia. I, of course, then
had the opportunity to review those
photographs. I would not describe the
photographs as being a deformity. There was
a slight bluish discoloration under [appellant]'s
scrotum sac, but aside from that, I didn't find
him to be deformed. [Appellant], well, he
believed that this was going to be a definitive
issue in the case. We discussed it. And he
believed that if, in fact, on cross-examination
[S.E.] made statements to the effect that there
was nothing out of the ordinary or
extraordinary about his genitalia -- which she
did say on cross-examination -- that the
photographs would disprove that statement,
that the photographs would impeach her
credibility on that issue and buttress our
theory of the case that the incident never
occurred. I would have preferred not to
introduce those photographs. I thought they
had the potential effect of disgusting the jury,
to be quite honest with you. And as I said, I
didn't think there was anything extraordinarily
deformity [sic] about the photographs. But
nonetheless, he felt it was a very significant
issue in his defense.

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Q. So prior to the trial you and [appellant] had
[the] opportunity to meet and discuss what
evidence you would be including on your case
in chief?

A. We did.

Q. And it's your testimony today that part of that
discussion entailed these photographs?

A. Yes.
Notes of testimony, 12/10/15 at 9-10.

When a defendant makes a knowing, intelligent, and voluntary choice
concerning trial strategy, his later claim that trial counsel was ineffective on
this basis lacks arguable merit. Commonwealth v. Rios, 920 A.2d 790,
803 (Pa. 2007), abrogated on other grounds by Commonwealth v.
Tharp, 101 A.3d 736 (Pa. 2014), citing Commonwealth v. Paddy, 800
A.2d 294, 315-316 (Pa. 2002) (where the trial court conducted a colloquy
during which the defendant confirmed that he knew he had a right to call
witnesses and agreed with his counsel's decision not to call them, defendant
could not later assert that trial counsel was ineffective). Paddy recognized
that, “[t]o hold otherwise would allow a defendant to build into his case a
ready-made ineffectiveness claim to be raised in the event of an adverse
verdict." Paddy, 800 A.2d at 316.

Attorney O'Bara testified that appellant insisted on submitting the
photographs of his genitalia. The trial court credited this testimony and

found it to be “completely credible." (Trial court opinion, 6/9/16 at 15.)

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Appellant's decision was made after full consultation with counsel, and he
will not be heard to complain about it now. Paddy. Furthermore, there was
a reasonable strategic basis for admission of the photographs into evidence.
S.E. did testify that after a three-year sexual relationship including oral,
anal, and vaginal intercourse, she did not notice anything unusual or
distinctive about appellant's genitalia. (Notes of testimony, 1/27-31/14 at
127-129.) Therefore, it was a reasonable strategy to attack S.E.'s credibility
with the photographs depicting a large bluish discoloration along the
underside of appellant's penis and scrotum. “If a reasonable basis exists for
the particular course, the inquiry ends and counsel's performance is deemed
constitutionally effective.” Commonwealth v. Abdul-Salaam, 808 A.2d
558, 561 (Pa. 2001), citing Commonwealth v. Derk, 719 A.2d 262, 266
(Pa. 1998) (opinion in support of affirmance). It cannot be said that
counsel's strategy was inherently unreasonable, and the fact that the
strategy did not result in an acquittal in this particular case does not make it
unreasonable. As in many cases involving alleged sexual offenses, this case
boiled down to credibility. There was no physical evidence and no
third-party eyewitnesses to the alleged sexual acts. We will not
second-guess Attorney O'Bara's strategy in this regard.

Finally, appellant alleges that trial counsel was ineffective for failing to

file a post-sentence motion challenging the discretionary aspects of his

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sentence.8 (Appellant's brief at 40.) According to appellant, his original
sentence of 25 to 55 years' imprisonment was manifestly excessive and
unreasonable where the trial court focused solely on the serious nature of
the offenses, to the exclusion of other relevant factors including appellant's
need for rehabilitation. (Id. at 38.) Appellant also alleges that the trial
court ignored certain mitigating factors including that at the time of
sentencing, appellant was married and gainfully employed, had remained
clean and sober, and had not been charged with any additional offenses.
(Id.)

As set forth above, the trial court vacated appellant's original sentence
and imposed a new sentence of 25 to 50 years' imprisonment. The record

further reflects that appellant received a mandatory minimum sentence of

8 Appointed counsel, Attorney O'Bara, was removed from the case shortly
after trial and appellant retained new counsel, Attorney Shrager. (Notes of
testimony, 12/10/15 at 11.) Appellant was represented by Attorney Shrager
at sentencing on May 1, 2014. Attorney Shrager did not file post-sentence
motions on appellant's behalf, but did file a timely direct appeal which was
later withdrawn. As stated above, Attorney Shrager died during the
pendency of appellant's appeal and, therefore, was not available to testify at
the PCRA hearing.

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25 years' imprisonment pursuant to 42 Pa.C.S.A. § 9718.2.9 (See
“Notification of Commonwealth's Intention to Proceed Pursuant to the
Mandatory Sentencing Provisions of 42 Pa.C.S.A. §§ 9718 and 9718.2," filed
2/3/14 (Docket #5); notes of testimony, sentencing, 5/1/14 at 24.)
Therefore, counsel could not have challenged the discretionary aspects of
appellant's sentence.

As the Commonwealth observes, however, 42 Pa.C.S.A. § 9718,
providing for mandatory minimum sentences for certain enumerated
offenses committed against children, has been declared unconstitutional and

illegal in light of Alleyne v. United States, _ U.S. _, 133 S.Ct. 2151,

(a) Mandatory sentence.--

(1) Any person who is convicted in any court
of this Commonwealth of an offense set
forth in section 9799.14 (relating to
sexual offenses and tier system) shall, if
at the time of the commission of the
current offense the person had
previously been convicted of an offense
set forth in section 9799.14 or an
equivalent crime under the laws of this
Commonwealth in effect at the time of
the commission of that offense or an
equivalent crime in another jurisdiction,
be sentenced to a minimum sentence of
at least 25 years of total confinement,
notwithstanding any other provision of
this title or other statute to the contrary.

42 Pa.C.S.A. § 9718.2(a)(1). Appellant was previously convicted of

statutory sexual assault, 18 Pa.C.S.A. § 3122.1, on April 11, 2005.
(Docket #5, Exhibit A.)

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186 L.Ed.2d 314 (2013) (holding that facts that increase mandatory
minimum sentences must be submitted to the jury and must be found
beyond a reasonable doubt). In Commonwealth v. Wolfe, 106 A.3d 800
(Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016), this court
determined that Section 9718 was facially void. It is true that
Section 9718.2 is based on a defendant's prior conviction of sexual offenses
and does not require any judicial fact-finding by the trial court. See
Apprendi v. New ]ersey, 530 U.S. 466, 490 (2000) (“Other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt."). However, as does Section 9718,
Section 9718.2 contains a provision that the statute's applicability shall be
determined by the trial court, at time of sentencing, by a preponderance of
the evidence. 42 Pa.C.S.A. § 9718.2(c).

In Commonwealth v. Pennybaker, 121 A.3d 530 (Pa.Super. 2015),
this court examined 42 Pa.C.S.A. § 9718.4, providing for mandatory
sentences for failure to comply with sexual offender registration
requirements. Relying on Apprendi and Almendarez-Torres v. United
States, 523 U.S. 224 (1998) (the fact of a prior conviction does not need to
be submitted to a jury and found beyond a reasonable doubt), this court
determined that Section 9718.4 did not implicate Alleyne: “Here, the

statute at issue, 42 Pa.C.S.A. § 9718.4(a)(1)(iii), does not provide for any

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fact-finding, nor does it make the application of the mandatory minimum
sentence contingent on any factual question that has not already been
determined." Pennybaker, 121 A.3d at 534, citing Commonwealth v.
Aponte, 855 A.2d 800, 811 (Pa. 2004) (noting that the enhancement
statute at issue in that case, relating to prior convictions, was not illegal
because application of the statute was not contingent on any fact-finding or
any factual question that had not already been determined); see also
Alleyne, 133 S.Ct. at 2160 n.1 (explicitly noting that Almendarez-Torres
remains good law, and is a narrow exception to the holding of Alleyne).

Recently, however, the Pennsylvania Supreme Court granted
allowance of appeal in Pennybaker, and vacated this court's decision and
remanded to the trial court for resentencing without application of the
mandatory minimum sentence in Section 9718.4, citing Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015) (18 Pa.C.S.A. § 6317, drug-free school
zones, is unconstitutional under Alleyne), and Wolfe. Commonwealth v.
Pennybaker, 145 A.3d 720 (Pa. 2016) (per curiam order filed Aug. 31,
2016)

Appellant did not raise this issue in his PCRA petition or in his brief on
appeal. As discussed above, appellant's argument concerning the
discretionary aspects of sentencing is misplaced where the Commonwealth
invoked the 25-year mandatory minimum sentence under 42 Pa.C.S.A.

§ 9718.2. Nevertheless, because the issue goes to the legality of his

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sentence, which is non-waivable, we will not find waiver on this basis. See
Commonwealth v. Barnes, _ A.3d _, 2016 WL 7449232 (Pa. Dec. 28,
2016) (an Alleyne challenge implicates the legality of a sentence for issue
preservation purposes and is not waivable); Commonwealth v. Edrington,
780 A.2d 721, 723 (Pa.Super. 2001), citing Commonwealth v. Vasquez,
744 A.2d 1280 (Pa. 2000) (application of a mandatory sentencing provision
implicates the legality of the sentence, not the discretionary aspects of the
sentence); see also Commonwealth v. Fennell, 105 A.3d 13, 15
(Pa.Super. 2014), appeal denied, 121 A.3d 494 (Pa. 2015), citing
Commonwealth v. Lawrence, 99 A.3d 116, 123 (Pa.Super. 2014) (“issues
pertaining to Alleyne go directly to the legality of the sentence");
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super. 2014) (“this Court
is endowed with the ability to consider an issue of illegality of sentence
sua sponte”), quoting Commonwealth v. Orellana, 86 A.3d 877, 883 n.7
(Pa.Super. 2014) (citation omitted).

Moreover, retroactivity is not an impediment here where not only was
appellant's original sentence of May 1, 2014, imposed after Alleyne was
decided and appellant filed a timely PCRA petition, but he was then
resentenced on December 10, 2015, and the trial court imposed the same
25-year mandatory sentence pursuant to 42 Pa.C.S.A. § 9718.2. See
Commonwealth v. Ruiz, 131 A.3d 54, 59-60 (Pa.Super. 2015) (a

defendant can raise an Alleyne challenge in a timely PCRA petition so long

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as his judgment of sentence was not yet final when Alleyne was decided on
June 17, 2013). Cf. Commonwealth v. Washington, 142 A.3d 810 (Pa.
2016) (holding that where the defendant's judgment of sentence had
already become final M Alleyne was decided, Alleyne was not a
groundbreaking, “watershed" rule of criminal procedure that applied
retroactively on collateral review); Commonwealth v. Riggle, 119 A.3d
1058 (Pa.Super. 2015) (holding that Alleyne did not apply retroactively in a
PCRA setting, where Riggle's judgment of sentence became final 15 months
M the Supreme Court decided Alleyne in June of 2013). In fact, the
Commonwealth concedes that remand is appropriate in this case. (See
Commonwealth's brief at 39 (“Because Judge McDaniel explicitly structured
her sentence so as to provide the 25-year minimum required by
42 Pa.C.S.A. § 9718.2, it appears to the Commonwealth that the Court may
conclude that this matter must be remanded for resentencing so as to
correct an illegal sentence.”).) We agree and will follow our supreme court's
lead in Pennybaker and vacate the judgment of sentence and remand for
resentencing without application of a mandatory minimum sentence per
42 Pa.C.S.A. § 9718.2. We affirm the trial court's denial of PCRA relief on
the basis of ineffective assistance of counsel, as those claims are without

merit.

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Order affirmed. Judgment of sentence vacated. Remanded for

resentencing. Jurisdiction relinquished.

Shogan, J. joins this Memorandum.

Strassburger, J. files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Es .
Prothonotary

Date: 4[12[2017

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