Com. v. Widger, K.

J-S28019-20

2020 PA Super 192

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KYLE ROCKWELL WIDGER :

:

Appellant : No. 1839 MDA 2019

Appeal from the Judgment of Sentence Entered October 15, 2019

In the Court of Common Pleas of Tioga County Criminal Division at

No(s): CP-59-CR-0000286-2017

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

OPINION BY OLSON, J.: FILED AUGUST 13, 2020

Appellant, Kyle Rockwell Widger, appeals the October 15, 2019

judgment of sentence imposing an aggregate 10 to 20 years’ imprisonment

after a jury convicted Appellant of aggravated indecent assault of a child less

than 13 years of age, aggravated assault of a child less than 13 years of age,

and endangering the welfare of a child.1 We affirm.

On July 18, 2017, Appellant was charged with the aforementioned

crimes, as well as, inter alia, indecent assault of a child less than 13 years of

age2 after Appellant digitally penetrated the child’s vaginal cavity and caused

a second-degree perineal laceration that extended from the vaginal opening

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1 18 Pa.C.S.A. §§ 3125(b), 2702(a)(9), and 4304(a)(1), respectively.

2 18 Pa.C.S.A. § 3126(a)(7). Appellant was also charged with corruption of a

minor less than 18 years of age. 18 Pa.C.S.A. § 6301(a)(1)(ii). This charge

was subsequently dismissed on October 15, 2019.

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to the child’s anus. The two-year-old child was in Appellant’s care while the

child’s mother, Appellant’s then-girlfriend, was at work.

On April 3, 2019, a jury found Appellant guilty of aggravated indecent

assault of a child less than 13 years of age, aggravated assault of a child less

than 13 years of age, and endangering the welfare of a child. The jury found

Appellant not guilty of indecent assault of a child less than 13 years of age.

The trial court ordered a pre-sentence investigation (“PSI”) report and ordered

Appellant to submit to an assessment by the Sexual Offender’s Assessment

Board.

On October 15, 2019, the trial court sentenced Appellant to 10 to 20

years’ imprisonment for aggravated indecent assault of a child less than 13

years of age, 5 to 10 years’ imprisonment for aggravated assault of a child

less than 13 years of age, and 6 to 24 months’ imprisonment for endangering

the welfare of a child. The trial court ordered the latter two sentences to run

concurrently to the sentence for aggravated indecent assault of a child less

than 13 years of age. Appellant’s aggregate sentence, therefore, was 10 to

20 years’ imprisonment. Appellant was determined not to be a sexually

violent predator but was ordered, as a Tier III offender, to register for life with

the Pennsylvania State Police as mandated by 42 Pa.C.S.A. § 9799.15(a)(3).

This appeal followed.3

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3 The trial court ordered Appellant to file a concise statement of errors

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

complied. The trial court subsequently filed a “Rule 1925(a) Statement.”

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Appellant raises the following issues for our review:

[1.] Whether the evidence was insufficient as a matter of law to

sustain [Appellant’s] convictions for aggravated assault [of

a child less than 13 years of age], aggravated indecent

assault of a child [less than 13 years of age], and

endangering the welfare of [a child] where, among other

things, the requisite mens rea elements for the

[aforementioned] offenses, the penetration and [lack of]

good faith elements for aggravated indecent assault [of a

child less than 13 years of age], and [the] serious bodily

injury element for aggravated assault [of a child less than

13 years of age] were not proven beyond a reasonable

doubt?

[2.] Whether the trial court erred in accepting an inconsistent

verdict where [Appellant] was acquitted of indecent assault

[of a child less than 13 years of age], but convicted of

aggravated indecent assault [of a child less than 13 years

of age], when the proof required for both charges consisted

of the same conduct and evidence?

[3.] Whether the trial court erred in imposing a ten-year

mandatory minimum sentence for aggravated indecent

assault [of a child less than 13 years of age] pursuant to 42

Pa.C.S.A. § 9718, which has been previously held to be an

unconstitutional statute?

[4.] Whether the lack of any disclosure prior to trial of the

Commonwealth's notice of its intent to seek a mandatory

minimum sentence pursuant to [section] 9718, violated

[Appellant’s] state and federal due process rights where he

was deprived of his right to make an informed decision

regarding his decision to proceed to trial?

Appellant’s Brief at 4 (extraneous capitalization omitted).

In his first issue, Appellant argues there was insufficient evidence to

support his convictions. Id. at 10-18. Specifically, Appellant contends there

was insufficient evidence of the requisite mens rea to establish that he

committed the offenses of aggravated indecent assault of a child less than 13

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years of age, aggravated assault of a child less than 13 years of age, and

endangering the welfare of a child. Id. Appellant further contends there was

insufficient evidence of penetration without a good faith purpose to support

his conviction for aggravated indecent assault of a child less than 13 years of

age. Id. Lastly, Appellant alleges there was insufficient evidence of serious

bodily injury to support a conviction for aggravated assault of a child less than

13 years of age. Id.

In addressing the merits of a sufficiency claim, our standard and scope

of review are well-settled.

The standard we apply in reviewing the sufficiency of the evidence

is whether viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence

to enable the fact-finder to find every element of the crime beyond

a reasonable doubt. In applying the above test, we may not weigh

the evidence and substitute our judgment for the fact-finder. In

addition, we note that the facts and circumstances established by

the Commonwealth need not preclude every possibility of

innocence. Any doubts regarding a defendant’s guilt may be

resolved by the fact-finder unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be

drawn from the combined circumstances. The Commonwealth

may sustain its burden of proof or proving every element of the

crime beyond a reasonable doubt by means of wholly

circumstantial evidence. Moreover, in applying the above test,

the entire record must be evaluated and all the evidence actually

received must be considered. Finally, the trier[-]of[-]fact while

passing upon the credibility of witnesses and the weight of the

evidence produced, is free to believe all, part or none of the

evidence.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)

(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004). To preserve a

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sufficiency claim, the Rule 1925(b) statement must specify the element or

elements upon which the evidence was insufficient. Commonwealth v.

Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008).

Section 3125 of the Pennsylvania Crimes Code defines aggravated

indecent assault, in pertinent part, as follows:

§ 3125. Aggravated indecent assault

(a) Offenses defined.—[A] person who engages in penetration,

however slight, of the genitals or anus of a complainant with a

part of the person's body for any purpose other than good faith

medical, hygienic or law enforcement procedures commits

aggravated indecent assault if:

(1) the person does so without the complainant's consent;

(2) the person does so by forcible compulsion;

(3) the person does so by threat of forcible compulsion that

would prevent resistance by a person of reasonable

resolution;

(4) the complainant is unconscious or the person knows that

the complainant is unaware that the penetration is

occurring;

(5) the person has substantially impaired the complainant's

power to appraise or control his or her conduct by

administering or employing, without the knowledge of the

complainant, drugs, intoxicants or other means for the

purpose of preventing resistance;

(6) the complainant suffers from a mental disability which

renders him or her incapable of consent;

(7) the complainant is less than 13 years of age; or

(8) the complainant is less than 16 years of age and the

person is four or more years older than the complainant and

the complainant and the person are not married to each

other.

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(b) Aggravated indecent assault of a child.--A person

commits aggravated indecent assault of a child when the person

violates subsection (a)(1), (2), (3), (4), (5) or (6) and the

complainant is less than 13 years of age.

18 Pa.C.S.A. § 3125(a) and (b). “Digital penetration is sufficient to support a

conviction for aggravated indecent assault[.]” Commonwealth v. Gonzalez,

109 A.3d 711, 723 (Pa. Super. 2015), appeal denied, 125 A.3d 1198 (Pa.

2015).

A person acts knowingly with respect to a material element of an

offense when:

(i) if the element involves the nature of his conduct or the

attendant circumstances, he is aware that his conduct is of

that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is

aware that it is practically certain that his conduct will cause

such a result.

18 Pa.C.S.A. § 302(b)(2)(i) and (ii).

A person commits aggravated assault of a child less than 13 years of

age if the person “attempts to cause or intentionally, knowingly or recklessly

causes serious bodily injury to a child less than 13 years of age, by a person

18 years of age or older.” Id. at § 2702(a)(9).

A person acts recklessly with respect to a material element of an

offense when he consciously disregards a substantial and

unjustifiable risk that the material element exists or will result

from his conduct. The risk must be of such a nature and degree

that, considering the nature and intent of the actor's conduct and

the circumstances known to him, its disregard involves a gross

deviation from the standard of conduct that a reasonable person

would observe in the actor's situation.

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Id. at § 302(b)(3). Serious bodily injury is defined as “[b]odily injury which

creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Id. at § 2301.

“A parent, guardian or other person supervising the welfare of a child

under 18 years of age, or a person that employs or supervises such a person,

commits [the offence of endangering the welfare of a child] if he knowingly

endangers the welfare of the child by violating a duty of care, protection or

support.” Id. at § 4304(a)(1).

Appellant argues that the evidence was insufficient to prove that he

acted with malice, for purposes of his aggravated assault of a child less than

13 years of age conviction, or knowingly caused the child’s injury for purposes

of aggravated indecent assault of a child less than 13 years of age or

endangering the welfare of a child.4 Appellant’s Brief at 13. Appellant

____________________________________________

4 Appellant’s contention that malice is the mens rea necessary for a conviction

of aggravated assault under Section 2702(a)(9) is unsupported by statutory

authority or case law. Malice is the requisite mens rea to convict a person of,

inter alia, aggravated assault under Section 2702(a)(1). Commonwealth v.

McHale, 858 A.2d 1209, 1212 (Pa. Super. 2004); see also 18 Pa.C.S.A.

§ 2702(a)(1) (stating, a person commits aggravated assault if the person

“attempts to cause serious bodily injury to another, or causes such injury

intentionally, knowingly or recklessly under circumstances manifesting

extreme indifference to the value of human life”). Malice is defined as

“wickedness of disposition, hardness of heart, cruelty, recklessness of

consequences, and a mind regardless of social duty, although a particular

person may not be intended to be injured.” McHale, 858 A.2d at 1213

(citation omitted). Conspicuously absent from Section 2702(a)(9), when

compared to Section 2702(a)(1), is the requirement that the perpetrator act

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contends the child sustained the injury when he was changing her diaper and

applying diaper rash ointment. Id. at 13-14. Appellant alleges that he

“believed his finger, along with his fingernail, caused the injury while he was

changing” the child’s diaper. Id. at 14. Appellant avers that the evidence

“was far more consistent with that of an accident by a caregiver, not

intentional child abuse.” Id. Appellant, while acknowledging that there was

“ample evidence of some slight digital penetration” of the child’s vaginal

cavity, argues that there was insufficient evidence that the “limited

penetration” was not for the good faith purpose of applying the diaper rash

ointment. Id. at 16. Appellant further contends that the child did not suffer

serious bodily injury because the evidence only established a “second-degree

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recklessly “under circumstances manifesting extreme indifference to the value

of human life[.]” Compare 18 Pa.C.S.A. § 2702(a)(9) with 18 Pa.C.S.A.

§ 2702(a)(1).

Where the legislature includes specific language in one section of

the statute and excludes it from another, the language should not

be implied where excluded. Moreover, where a section of a

statute contains a given provision, the omission of such a

provision from a similar section is significant to show a different

legislative intent.

Commonwealth v. Johnson, 125 A.3d 822, 831 (Pa. Super. 2015) (citation

and brackets omitted). If the legislature intended to require “malice” as a

requisite element to convict a person of aggravated assault under Section

2702(a)(9), the legislature would have included the language as it did under

Section 2702(a)(1). Absent such language in Section 2702(a)(9), the

Commonwealth is required to prove only that Appellant acted with

recklessness as defined by Section 302(b)(3) and is not required to

demonstrate Appellant acted with malice.

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laceration of the hymen tissue, which caused [the child] pain, but would heal.”

Id. at 17.

The Commonwealth argues that that child’s injury “would have required

too much force for [] Appellant not to know or understand what was going on

at the time.” Commonwealth’s Brief at 7. The Commonwealth contends that

Appellant was angry with the child at the time he was changing her diaper and

that the injury was “through the muscle with enough pressure to tear the skin

and separate the muscle in the midline.” Id. at 5. The Commonwealth avers

that Appellant admitted to being the only caregiver with the child at the time

of injury and admitted he caused the injury. Id. at 4.5

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5 The trial court, in addressing Appellant’s first issue in its “Rule 1925(a)

Statement,” stated, “[a]s the [t]rial [j]udge, [I am] satisfied that more than

sufficient evidence was presented to support the [j]ury’s verdict.” Trial Court

Rule 1925(a) Statement, 12/23/19. “The Rules of Appellate Procedure make

the filing of a 1925(a) opinion mandatory and the Rule 1925(a) opinion must

set forth the reasons for the rulings of the trial judge or must specify in writing

the place in the record where the reasons may be found.” Commonwealth

v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005), citing Pa.R.A.P. 1925(a),

appeal denied, 889 A.2d 88 (Pa. 2005). Pennsylvania Appellate Rule of

Procedure 1925(a) states, “upon receipt of the notice of appeal, the judge who

entered the order giving rise to the notice of appeal, if the reasons for the

order do not already appear of record, shall within the period set forth in

Pa.R.A.P. 1931(a)(1) file of record at least a brief opinion of the reasons for

the order, or for the rulings or other errors complained of, or shall specify in

writing the place in the record where such reasons may be found.”

Pa.R.A.P. 1925(a) (emphasis added). It is incumbent upon a trial court to

provide this Court with its Rule 1925(a) opinion addressing an appellant’s

issues, with citation to the record, to permit a meaningful and effective review

of the issues raised and efficient use of judicial resources. The remedy for the

trial court’s non-compliance with Rule 1925(a) is to remand the case to the

trial court with instructions to prepare an opinion and return the case to this

Court. See Hood, 872 A.2d at 179. Here, the trial court provided a “Rule

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The record reveals that Appellant admitted to digitally penetrating the

child’s vaginal cavity. N.T., 4/3/19, at 7-8; see also N.T., 4/2/19, at 73,

133-134, 177-178. Appellant testified that after applying diaper rash

ointment, and while reaching for a new diaper, the child was kicking and

fussing when he “felt [his middle] finger [on his right hand] jam [into the

child’s vaginal cavity] like [he] had just caught a basketball[.]” N.T., 4/3/19,

at 7. Appellant believed he injured the child when his finger “caught” on her

vagina and his fingernail cut the child. Id. at 8, 17. After attempting to stop

the bleeding, Appellant alleged he was unaware the injury was “as severe as

it turned out to be.” Id. at 9.

Dr. Adrienne Bonham, an expert in obstetrics and gynecology, described

the child’s injury as a second-degree laceration, approximately three

centimeters, from the perineum into the vaginal cavity. N.T., 4/2/19, at

152-153, 155, 158, 160-161. Dr. Bonham stated that the injury was not a

“superficial scratch” but, rather, a second-degree laceration in which the

muscles in the middle of the perineum separated. Id. at 161. Dr. Bonham

remarked,

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1925(a) Statement” containing one-sentence responses pertaining to each of

Appellant’s four issues with no citation to the record to support the trial court’s

conclusory statements. Trial Court Rule 1925(a) Statement, 12/23/19.

Although we do not approve of or sanction the trial court’s failure to comply

with its obligations under Rule 1925(a), the lack of a Rule 1925(a) opinion

does not preclude this Court’s review of the merits of Appellant’s issues based

upon our review of the record, including the notes of testimony from

Appellant’s trial.

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[t]he muscles, the superficial muscles of the pelvic floor[,] all

come together in [the] area between the vagina and anus; it is

connected in that area, [it is] called the perineal body. This

laceration went through the skin and into those connective

tissue[s] and separated the attachments of the muscles together

in the midline[.]

Id. Dr. Bonham opined that this type of injury would require a significant

amount of force with enough pressure to tear the skin and separate the

muscles in the midline. Id. Dr. Bonham opined, to a reasonable degree of

medical certainty, that the child’s injury could not have been self-inflicted,

caused when the child allegedly “lifted her buttocks up in the air and fell down

on [Appellant’s] hand[,]” or by applying diaper rash ointment to the perineum

area, even in an aggressive manner. Id. at 165-166.

In the emergency room of the hospital, the child was “tearful and very

uncomfortable with any exam[ination]” and the medical team was unable to

examine the extent of the injury. Id. at 152, 169. As a result, an operation

was required during which, upon sedation of the child, the severity of the

child’s injury was determined. Id. at 152-152. Dr. Bonham was able to repair

the laceration with fine sutures, which will likely result in a scar. Id. at 164.

Dr. Bonham pro-actively treated the child for several potential sexually

transmitted diseases and inserted a catheter into the child’s bladder for

24 hours to help eliminate discomfort while urinating. Id. at 165. The child

received follow-up treatment from a pediatric gynecologist, and Dr. Bonham

believed the child was healing “okay.” Id. at 171.

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Trooper Terry Seal, a criminal investigator with the Pennsylvania State

Police, upon conducting an investigation, concluded that the child’s injury

occurred while she was in Appellant’s sole care and no one else had access to

the child. Id. at 63, 75-76, see also id. at 81-82 (demonstrating that the

babysitter did not notice any injury to the child prior to releasing the child to

Appellant’s care and custody). Appellant initially told the child’s mother that

the child’s injury was self-inflicted when the child scratched herself. Id. at

60, 97, 103; see also Commonwealth’s Exhibit 3. The child’s mother

reported, to both the police and the hospital staff, that the child’s injury was

self-inflicted and that upon arriving home she found the child jumping on the

bed immediately prior to discovering the injury. N.T., 4/2/19, at 100-101,

114-115, 123. Appellant admitted that he and, allegedly, the child’s mother

fabricated the story that the child’s injury was self-inflicted in order to protect

Appellant from being accused of causing the injury. Id. at 180; see also

N.T., 4/3/19, at 15-16.

Based upon the totality of the circumstances, the jury could infer beyond

a reasonable doubt, that Appellant knowingly and recklessly digitally

penetrated the child’s vaginal cavity without a good faith medical reason and

that Appellant’s actions caused the child serious bodily injury and endangered

the child’s welfare. The Commonwealth presented expert testimony to

establish that the severity of the injury was such that it was not caused by an

alleged accidental insertion of Appellant’s finger or by Appellant’s application

of diaper rash ointment, even if in an aggressive manner. The child’s injury

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was a second-degree laceration in her perineum that resulted in extensive

bleeding and required surgery and the insertion of sutures to repair. In

viewing all of the evidence and the inferences drawn from that evidence in the

light most favorable to the Commonwealth, as the verdict winner, there was

sufficient evidence for the jury, as fact-finder, to find that Appellant, without

the two-year-old child’s consent,6 knowingly and recklessly digitally

penetrated the child’s vaginal cavity without a good faith medical reason, that

Appellant intentionally, knowingly, or recklessly caused serious bodily injury

to the child, and Appellant violated his duty of care when he knowingly

endangered the child’s welfare. Consequently, Appellant’s sufficiency claim is

without merit.

In Appellant’s second issue, he argues that the trial court erred by

permitting an inconsistent verdict in which the jury convicted Appellant of

aggravated indecent assault of a child less than 13 years of age but acquitted

Appellant of the charge of indecent assault of a child less than 13 years of

age. Appellant’s Brief at 18-19. Appellant contends, “[t]he jury’s acquittal of

[i]ndecent [a]ssault was plainly based on the same criminal conduct and

evidence[,]” namely that Appellant digitally penetrated the child’s vaginal

cavity. Id.

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6 “[A]ll children under the age of thirteen are legally unable to consent to

sexual acts[.]” Commonwealth v. Velez, 51 A.3d 260, 265 (Pa. Super.

2012).

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It is a long-standing and well-established principle of our

Commonwealth that consistency in a verdict is not required. Commonwealth

v. Miller, 35 A.3d 1206, 1213 (Pa. 2012). Our Supreme Court, in Miller, held

that inconsistent verdicts are generally not reviewable because such “an

individualized assessment of the reason for the inconsistency either would be

based on pure speculation, or would require inquiries into the jury's

deliberations that courts generally will not undertake.” Id. at 1209 (citations

and brackets omitted). “[A] criminal defendant already is afforded protection

against jury irrationality or error by the independent review of the sufficiency

of the evidence undertaken by the trial and appellate courts.” Id. (citation

omitted). “Whether the jury's verdict was the result of mistake, compromise,

lenity, or any other factor is not a question for [appellate courts] to review.”

Id. at 1213 (citation omitted).

The Miller Court noted an exception to the non-reviewability rule when

the conviction of one crime requires, as an element of that crime, the

completion of a predicate crime. Id.; see also Commonwealth v.

Magliocco, 883 A.2d 479 (Pa. 2005) (holding that a conviction of ethnic

intimidation must be vacated where the defendant was acquitted of the

predicate crime of terroristic threats, which was a specific statutory element

of the offense of which he was convicted); Commonwealth v. Reed, 9 A.3d

1138 (Pa. 2010) (holding that pursuant to statute, the grading of a conviction

of unlawful contact with a minor for sentencing purposes is predicated upon

the defendant’s conviction of an underlying offense and the defendant may

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not be acquitted of the underlying offense upon which the conviction of

unlawful contact with a minor is based). Therefore, where the plain text of

the governing statute requires a conviction of a predicate crime as an element

to establish a conviction of a second crime, an appellate court may review the

verdict for inconsistency.

This Court, in comparing the elements necessary to support convictions

of aggravated indecent assault of a child less than 13 years of age and

indecent assault of a child less than 13 years of age, stated,

[a]ggravated indecent assault [of a child less than 13 years of

age] is defined as penetration, however slight, of the genitals or

anus of the victim with a part of the offender's body for any

purpose other than good faith medical, hygienic, or law

enforcement procedures if the victim is less than 13 years of age.

18 Pa.C.S.A. § 3125[(a) and (b)]. Indecent assault [of a child less

than 13 years of age] is defined as indecent contact with the victim

if the victim is less than 13 years of age. 18 Pa.C.S.A.

§ 3126[(a)(7)]. 18 Pa.C.S.A. § 3101 defines “indecent contact”

as any touching of the sexual or other intimate parts of the victim

for the purpose of arousing or gratifying sexual desire in either

person.

Aggravated indecent assault includes an element that is not

required to commit indecent assault. That element is penetration

of the genitals or anus of the victim. Indecent assault includes an

element that is not required to commit aggravated indecent

assault. That element is proof of arousing or gratifying sexual

desire.

Commonwealth v. Allen, 856 A.2d 1251, 1253-1254 (Pa. Super. 2004),

appeal denied, 870 A.2d 319 (Pa. 2005).

Here, as discussed supra, there was sufficient evidence to convict

Appellant of aggravated indecent assault of a child less than 13 years of age.

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Since the crimes of aggravated indecent assault of a child less than 13 years

of age and indecent assault of a child less than 13 years of age each have an

additional element not included in the other crime, inconsistency of the verdict

is not reviewable.

In his third issue, Appellant argues that the trial court erred in imposing

a ten-year mandatory minimum sentence, pursuant to 42 Pa.C.S.A.

§ 9718(a)(3), for his conviction of aggravated indecent assault of a child less

than 13 years of age. Appellant’s Brief at 20-22.

Appellant’s issue challenges the legality of sentence for which our

standard of review is de novo and our scope of review plenary.

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012).

Section 9718(a)(3) of the Pennsylvania Sentencing Code requires a

person convicted of aggravated indecent assault of a child less than 13 years

of age pursuant to 18 Pa.C.S.A. § 3125(b) to be sentenced to a mandatory

minimum term of not less than 10 years’ imprisonment. 42 Pa.C.S.A.

§ 9718(a)(3). Section 9718(c), as enacted at the time of Appellant’s

sentencing, stated,

(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 additional evidence and

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shall determine, by a preponderance of the evidence, if this

section is applicable.

42 Pa.C.S.A. § 9718(c) (effective August 18, 2014 to December 17, 2019).

In Alleyne v. United States, the United States Supreme Court held

that pursuant to the Sixth Amendment of the United States Constitution,

which guarantees a defendant the right to a trial by an impartial jury and is

applicable to the states by virtue of the Fourteenth Amendment,

[a]ny fact that, by law, increases the penalty for a crime is an

“element” that must be submitted to the jury and found beyond a

reasonable doubt. Mandatory minimum sentences increase the

penalty for a crime. It follows, then, that any fact that increases

the mandatory minimum is an “element” that must be submitted

to the jury.

Alleyne v. United States, 570 U.S. 99, 103 (2013) (citation omitted).

In Commonwealth v. Wolfe, our Supreme Court, in addressing the

implications of Alleyne on the constitutionality of Section 9718(a)(1) and (c),

broadly held that Section 9718 is “irremediably unconstitutional on its face,

non-severable, and void.” Commonwealth v. Wolfe, 140 A.3d 651, 663

(Pa. 2016). Justice Todd, in authoring a dissent in Wolfe, held that when the

fact that triggered the mandatory minimum sentence was an element of the

underlying criminal offense and the jury found, beyond a reasonable doubt,

that element of the underlying criminal offense in order to convict the

defendant of the same, the defendant has been afforded the benefit of every

constitutional right and the imposition of a mandatory minimum sentence does

not implicate the protections announced in Alleyne. Wolfe, 140 A.3d at

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666-667 (Todd, J. dissenting). A severability analysis, as Justice Todd

suggested, is implicated “only where a statute reveals a constitutional (or

other) infirmity” and is not required when there is no Alleyne violation. Id.

at 669-670.

In Commonwealth v. Resto, our Supreme Court was presented with

the question of whether the imposition of a mandatory minimum sentence

under Section 9718(a)(3) was unconstitutional pursuant to Alleyne. In an

opinion announcing the judgment of the court (“OAJC”), Chief Justice Saylor7

held that Section 9718(a)(3) “requires no proof of any predicate or

aggravating facts” and, therefore, does not implicate the protections afforded

by Alleyne. Commonwealth v. Resto, 179 A.3d 18, 20-21 (Pa. 2018)

(OAJC) (Todd, J. concurring; Dougherty, J. joining the concurrence). Chief

Justice Saylor acknowledged that “some passages of Wolfe [were] written in

overbroad terms to the degree that they disapprove Section 9718 as a whole,

when the Court was not considering the materially distinct operation of

[Section 9718(a)(3)].” Id. at 22. A minimum mandatory sentence that

attaches to a conviction enumerated in Section 9718(a)(3) and does not

require the sentencing judge to determine an additional, aggravating fact,

does not run afoul of Alleyne because the conviction, itself, is a

contemporaneous jury determination of the facts that require the imposition

of a mandatory minimum sentence. Id. at 21. In so holding, Section

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7 Chief Justice Saylor authored the opinion in Wolfe, supra.

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9718(a)(3) was determined to be severable from Sections 9718(a)(1) and

(a)(2), which were unconstitutional pursuant to Alleyne. Id. at 22 (stating,

Wolfe does not prevent the recognition that a precept concerning aggravating

facts does not apply to provisions of a statute requiring none). Justice Todd,

in concurrence, held that “the fact of a conviction, which triggered the

mandatory minimum sentence under [Section] 9718(a)(3), was found by a

jury beyond a reasonable doubt” and, therefore, the mandatory minimum

sentence does not violate the defendant’s constitutional rights. Id. at 23.

Justice Dougherty, in a separate concurrence, held that “[t]he rule established

in Alleyne is not violated when judicial fact-finding is not necessary prior to

imposing a mandatory minimum sentence, regardless of whether the statutory

provision at issue is accompanied by a [‘]proof at sentencing[’] provision like

the one found at [Section] 9718(c).” Id. at 30.

Here, Appellant was subject to a mandatory minimum sentence of 10

years’ imprisonment, pursuant to Section 9718(a)(3), because a jury found,

beyond a reasonable doubt, all of the elements necessary to convict him of

aggravated indecent assault of a child less than 13 years of age in violation of

18 Pa.C.S.A. § 3125(b). The fact that triggered the mandatory minimum

sentence was Appellant’s conviction under Section 3125(b) and no additional

aggravating fact needed to be determined by the trial court prior to imposing

the judgment of sentence. Moreover, Appellant was afforded notice of the

criminal charge in the information filed at the outset of the case and was

presumptively aware that a mandatory minimum sentence, such as the one

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he received, would be imposed should he be convicted. Pursuant to Resto,

Section 9718(a)(3) is constitutional8 and the trial court had the authority to

impose a mandatory minimum sentence of 10 years’ imprisonment pursuant

to Section 9718(a)(3) without violating Appellant’s constitutional rights.

Consequently, Appellant’s issue is without merit.9

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8 The plurality’s OAJC in Resto, although binding on the parties in that case,

has limited precedential value on its own because it did not command the

joinder of a majority of the justices participating in the case. Commonwealth

v. Brown, 23 A.3d 544, 556 (Pa. Super. 2011) (citation omitted). Where

concurring opinions enumerate the portions of the plurality’s opinion in which

the author joins, however, those portions in agreement gain precedential

value. Id. (citation omitted). As the plurality’s OAJC and the concurring

opinions in Resto agree, Section 9718(a)(3) is severable from the remainder

of the subsections of the statute and the mandatory minimum sentence

imposed pursuant to Section 9718(a)(3), upon the jury’s finding beyond a

reasonable doubt that all of the elements of the crime charged have been

established, does not violate Appellant’s constitutional rights pursuant to

Alleyne.

9 To the extent that Appellant relies on this Court’s decision in

Commonwealth v. Sandusky, 203 A.3d 1033 (Pa. Super. 2019) to support

his argument that the imposition of a mandatory minimum sentence pursuant

to Section 9718(a)(3) is unconstitutional, we find Appellant’s reliance on

Sandusky, misplaced. See Appellant’s Brief at 22 (emphasis added). In

Sandusky, this Court held that the mandatory minimum sentence imposed

on Sandusky pursuant to Section 9718(a)(1) was unconstitutional pursuant

to the holdings in Alleyne, supra, and Wolfe, supra, because it required the

trial court to find an element that increased the length of sentence, namely

that the victim was less than 16 years of age, by a preponderance of the

evidence. Sandusky, 203 A.3d at 1102-1104 (emphasis added), see also

42 Pa.C.S.A. § 9718(a)(1) (effective May 30, 1995 to November 29, 2004 and

effective November 30, 2004 to December 31, 2006) (imposing a mandatory

minimum sentence of not less than five years for a conviction of involuntary

deviate sexual intercourse, pursuant to 18 Pa.C.S.A. § 3123, of a victim less

than 16 years of age). We find this Court’s decision in Sandusky, supra,

distinguishable from the case sub judice because, as discussed supra,

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In his final issue, Appellant argues that the Commonwealth, in violation

of his due process rights, failed to notify him, prior to trial, of its intent to seek

the mandatory minimum sentence, pursuant to Section 9718(a)(3), upon his

conviction of aggravated indecent assault of a child less than 13 years of age.

Appellant’s Brief at 23-25.

“A question regarding whether a due process violation occurred is a

question of law for which our standard of review is de novo and the scope of

review is plenary.” Commonwealth v. Tejada, 161 A.3d 313, 317

(Pa. Super. 2017) (citation omitted). Due process requires a criminal statute

to give fair warning of the conduct prescribed, and the criminal information

must provide fair notice of every crime of which a criminal defendant is

accused. Commonwealth v. Sims, 919 A.2d 931, 939 (Pa. 2007) (citations

omitted). The notice must be “sufficiently specific so as to allow the defendant

to prepare any available defenses should he exercise his right to a trial.” Id.

(citation omitted). The due process requirements ensure that if the

Commonwealth prevails at trial, the defendant’s conviction is not arbitrary or

oppressive. Id. (citation omitted).

This Court previously held that “notice prior to trial of the mandatory

sentence provision [is] unnecessary and impractical” because mandatory

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Appellant’s mandatory minimum sentence was imposed pursuant to Section

9718(a)(3) and does not violate Appellant’s constitutional rights. See Resto,

179 A.3d at 21-22 (cautioning that “some passages of Wolfe [were] written in

overbroad terms to the degree that they disapprove Section 9718 as a whole,

when the [Supreme] Court was not considering the materially distinct

operation of subsection (a)(3)).

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sentence statutes “were constructed as they [] relate to a trial [where,] during

trial[,] evidence might or might not be adduced to bring into play the

mandatory sentencing requirement.” Commonwealth v. Zorn, 580 A.2d 8,

12 (Pa. Super. 1990). Alleyne, and its progeny, do not alter this assessment.

The Alleyne line of cases hold that a defendant’s right to a trial-by-jury and

proof beyond a reasonable doubt are violated where a trial court imposes a

mandatory minimum sentence based upon its finding, by a preponderance of

evidence, of aggravating facts. See Alleyne, 570 U.S. at 116 (stating, “the

aggravating fact produced a higher range [of sentence], which, in turn,

conclusively indicates that the fact is an element of a distinct and aggravated

crime [and] must, therefore, be submitted to the jury and found beyond a

reasonable doubt”). The Alleyne Court, however, did not express an opinion

with regard to the type or timing of notice that must be afforded a defendant.

Id.

In the case sub judice, the Commonwealth needed to provide reasonable

notice of its intent to seek the mandatory minimum sentence of 10 years’

incarceration for Appellant’s conviction pursuant to Section 3125(b), after

Appellant was convicted by the jury but before sentencing.10 42 Pa.C.S.A.

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10 Section 9718(c.1) currently requires the Commonwealth to provide notice

of its intent to seek a mandatory minimum sentence pursuant to Section

9718(a) prior to conviction. 42 Pa.C.S.A. § 9718(c.1) (emphasis added)

(effective December 18, 2019). Although this section does not apply to the

instant case, we note that conspicuously absent from Section 9718(c.1) is the

requirement that the Commonwealth provide notice prior to trial, as

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§ 9718(c) (effective August 18, 2014 to December 17, 2019); see also

Resto, 179 A.3d at 22 (holding that the notification requirement of Section

9718(c), as it relates to Section 9718(a)(3), is constitutional). Section

9718(c) did not prescribe the type or format of the notice required, only that

the Commonwealth provide “reasonable notice” after conviction and before

sentencing. 42 Pa.C.S.A. § 9718(c) (effective August 18, 2014 to December

17, 2019). Here, Appellant concedes that the Commonwealth provided notice

after conviction but prior to sentencing. Appellant’s Brief at 25 (stating, notice

of the applicability of Section 9718(a)(3) was provided “only at the eleventh

hour, truly, an afterthought). Moreover, a review of the notes of testimony

from Appellant’s sentencing hearing demonstrates that Appellant had actual

notice, prior to sentencing, of the Commonwealth’s intent to seek a mandatory

minimum sentence for Appellant’s conviction under Section 3125(b). See

N.T., 10/15/19, at 1 (stating, “[t]he [trial] court would note that when [the

parties] were [previously] before [the trial court] there was some question as

to the applicability of the mandatory minimum sentencing provisions”).

Consequently, Appellant’s issue is without merit.

Judgment of sentence affirmed.

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suggested by Appellant. As the Zorn Court reasoned, the Commonwealth’s

decision to seek a mandatory minimum sentence often rests on evidence it

believes established guilt beyond a reasonable doubt during the trial. Zorn,

580 A.2d at 12.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/13/2020

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