Com. v. Dunn, R.

J-S49011-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RYAN MICHAEL DUNN :

:

Appellant : No. 176 WDA 2020

Appeal from the Judgment of Sentence Entered September 11, 2019

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

No(s): CP-02-CR-0014780-2018

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED DECEMBER 23, 2020

Appellant, Ryan Michael Dunn, appeals from the judgment of sentence

entered on September 11, 2019, following his jury trial convictions for

statutory sexual assault, involuntary deviate sexual intercourse (IDSI) –

person less than 16 years of age, aggravated indecent assault – complainant

less than 16 years of age, corruption of minors, endangering the welfare of a

child, and indecent assault – person less than 16 years of age.1 For the

reasons that follow, we affirm Appellant’s convictions, vacate his judgment of

sentence, and remand for resentencing.

We briefly summarize the facts and procedural history of this case as

follows. The Commonwealth charged Appellant with various crimes in

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* Former Justice specially assigned to the Superior Court.

118 Pa.C.S.A. §§ 3122.1(b), 3123(a)(7), 3124.1, 3125(a)(8), 3601(a)(1),

4304(a)(1), and 3126(a)(8), respectively.

J-S49011-20

connection with the sexual abuse of his girlfriend’s 13-year-old daughter.

Appellant and the victim resided together at the time of the alleged abuse.

According to the victim, the abuse began on June 25, 2015, the day after her

half-sister was born, and continued over the course of approximately two and

one-half years.2

Following a trial that concluded on June 10, 2019, a jury convicted

Appellant of the aforementioned crimes. On September 11, 2019, the trial

court sentenced Appellant to an aggregate term of imprisonment of 214 to

428 months’ incarceration followed by a consecutive term of five years of

probation.3 Appellant filed a post-sentence motion on September 19, 2019.

The trial court permitted Appellant to file a supplemental post-sentence

motion on December 4, 2019. By order entered on January 22, 2020, the trial

court denied post-sentence relief. On January 28, 2020, after the trial court

denied Appellant relief, the Commonwealth filed a response conceding that

the imposition of the mandatory minimum sentence for IDSI was illegal.

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2 As will be discussed in relation to an issue raised on appeal, the victim

originally told police that the abuse began a day earlier, the day that her

half-sister was born, on June 24, 2015. During their investigation, the police

learned that Appellant had an alibi for June 24, 2015. When confronted with

Appellant’s alibi, the victim later told police that she was initially mistaken and

the abuse began on June 25, 2015, the day after the victim’s mother gave

birth and the victim and Appellant visited the victim’s mother in the hospital.

3 Relevant to this appeal, the trial court sentenced Appellant to a mandatory

minimum sentence of 10 years of imprisonment for IDSI, pursuant to 42

Pa.C.S.A. § 9718(a)(1) (sentences for offenses against infant persons).

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Appellant filed a notice of appeal on January 30, 2020. On March 2, 2020,

Appellant filed a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). The trial court issued an opinion pursuant to Pa.R.A.P.

1925(a) on June 24, 2020.4

On appeal, Appellant presents the following issues for our review:

I. [Whether Appellant’s] due process right to a fundamentally

fair trial and the right [] to confront the witnesses against

him [were] violated when the trial court denied [Appellant’s]

motions to preclude expert witness testimony and compel

the preparation of an expert witness report where the

Commonwealth failed to provide notice of its intent to call

an expert witness pursuant to 42 Pa.C.S.A. § 5920 until the

eve of trial, where the Commonwealth is permitted to

circumvent its mandatory discovery obligations pursuant to

Pa.R.Crim.P. 573(B)(1)(e), and where the Commonwealth

was not required to provide [Appellant] with an expert

report pursuant to Pa.R.Crim.P. 573(B)(2)(b)?

II. Did the trial court err when it excluded testimony [of

Appellant’s proposed] alibi witnesses relative to an alleged

incident date of June 25, 2015, on the grounds that such

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4 In its Rule 1925(a) opinion, the trial court noted that it “scheduled a

resentencing hearing which was postponed as a result of the Covid-19

pandemic … and request[ed] the case be affirmed in part and remanded to

address the sentencing issue.” Trial Court Opinion, 6/24/2020, at 3 n.8. More

specifically, the trial court:

concede[d] that the imposition of a sentence at Count 2 IDSI,

based on a perceived mandatory at 42 Pa.C.S.A § 9718 (a)(1),

violates the Sixth Amendment to the United States Constitution

pursuant to Alleyne v. United States, 570 U.S. 99 (2013).

Appellant is therefore entitled to a resentencing hearing at Count

2. Since resentencing [] may upset the [trial c]ourt's overall

sentencing scheme, [the trial court] requests that the record be

returned to it so that a full resentencing hearing may occur.

Id. at 8.

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testimony was irrelevant after the accuser changed her

testimony concerning the date of the incident, where such

evidence was nonetheless probative of the accuser’s

credibility?

III. Did the trial court impose an illegal mandatory minimum

sentence pursuant to 42 Pa.C.S.A. § 9718(a)(1) at Count 2

– IDSI – person less than 16 years of age?

IV. […]Did the trial court abuse its discretion in sentencing by

considering and/or relying upon improper factors; namely,

its own apparent assessment and/or diagnosis that

[Appellant] suffers from “pedophilia”?

Appellant’s Brief at 6-7 (superfluous capitalization omitted).

Appellant’s first two issues challenge the trial court’s evidentiary rulings.

On such issues, our Supreme Court has set forth our standard of review as

follows:

The standard of review governing evidentiary issues is settled.

The decision to admit or exclude evidence is committed to the trial

court's sound discretion, and evidentiary rulings will only be

reversed upon a showing that a court abused that discretion. A

finding of abuse of discretion may not be made merely because

an appellate court might have reached a different conclusion, but

requires a result of manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous. Matters within the trial court's discretion are reviewed

on appeal under a deferential standard, and any such rulings or

determinations will not be disturbed short of a finding that the trial

court committed a clear abuse of discretion or an error of law

controlling the outcome of the case.

Commonwealth v. Koch, 106 A.3d 705, 710–711 (Pa. 2014) (internal

citations and quotations omitted); see also Commonwealth v. Smith, 206

A.3d 551, 560 (Pa. 2019) (expert evidence subject to abuse of discretion

standard).

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In his first issue presented, Appellant argues that the trial court erred

in denying his requests to compel the preparation of an expert witness report

and/or to preclude expert witness testimony at trial. Appellant offers the

following factual summary in support of his claims:

On the eve of trial, the Commonwealth notified [Appellant] via

email of its intent to call an expert in victim behaviors and

responses pursuant to 42 Pa.C.S.A. § 5920.

The Commonwealth attached to its email a letter from Jamie

Mesar, the Commonwealth's proffered Section 5920 expert, dated

May 31, 2019, and addressed to [the Commonwealth]. The letter

indicates that as "an expert witness in the area of child sexual

abuse, [Mesar] would be prepared to discuss, in general, the

typical ways children disclose abuse, how they react to child

sexual abuse and coping mechanisms they may use. The letter

also provides citations to five articles on various subjects "which

will further [Mesar's] testimony (although [Mesar's] testimony will

not be limited to this information)."

The following morning, on June 4, 2019, [Appellant] filed a motion

to preclude expert witness testimony. Specifically, [Appellant

sought] to preclude Mesar's testimony on the grounds that (1) the

Commonwealth failed to disclose an expert report "detailing the

actual opinions of the expert, or the basis and grounds for said

opinion"; and (2) the Commonwealth's late disclosure of its intent

to call Mesar as a Section 5920 expert prevented [Appellant] from

effectively confronting her by permitting him to conduct his own

research, from locating and consulting with a defense expert, and

from developing potential rebuttal evidence. Based on these

circumstances, [Appellant] contended, the admission of said

expert testimony would violate his due process right to a

fundamentally fair trial and his right to confront witnesses against

him.

[Appellant] also filed a motion to compel additional discovery [and

the] preparation and disclosure of an expert witness report.

Therein, he argued that, in the absence of an expert report which

details the substance of Mesar's expert opinions and/or

conclusions and the bases therefore, [Appellant] could not

effectively confront said testimony, or seek the opinion of his own

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expert and, thus, preparation and disclosure of a report pursuant

to Pa.R.Crim.P. 573(B)(2)(b) was appropriate.

Appellant’s Brief at 10-11 (superfluous capitalization and record citations

omitted).

On appeal, Appellant maintains that the admission of Mesar’s testimony

violated Section 5920 because notice of her anticipated appearance as a

witness came so close to the eve of trial and because the Commonwealth

failed to disclose Mesar’s opinions as an expert under Rule 573. Appellant’s

Brief at 24. Appellant argues that the Commonwealth’s notification of its

intent to call a Section 5920 expert “at the close of business on the night

before jury selection was to commence” was “egregiously late and insufficient”

which “resulted in a trial by ambush [that] deprived [Appellant] of a

fundamentally fair trial[.]” Id. at 28 (original emphasis omitted). Appellant

also claims that the “two-page letter” from the proffered expert did not apprise

him of the subject matter, the substance of the facts, or a summary of her

opinions and expected trial testimony. Id. at 25. For this reason, Appellant

argues that it was essential for the Commonwealth’s expert to prepare a

report in order to limit the scope of her trial testimony and to allow Appellant

effectively to cross-examine her. Id. at 26. Appellant concludes that he is

entitled to relief because the Commonwealth failed to provide proper notice of

its intent to call an expert witness pursuant to 42 Pa.C.S.A § 5920, because

the Commonwealth circumvented its mandatory discovery obligations

pursuant to Pa.R.Crim.P. 573(B)(1)(e), and because the Commonwealth was

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not compelled, in the alternative, to produce an expert report pursuant to

Pa.R.Crim.P. 573(B)(2)(b).

Expert testimony pertinent to victim responses and behaviors in cases

of sexual abuse is governed by 42 Pa.C.S.A. § 5920, which provides, in

relevant part:

§ 5920. Expert testimony in certain criminal proceedings

***

(b) Qualifications and use of experts.—

(1) In a criminal proceeding subject to this section, a

witness may be qualified by the court as an expert if the

witness has specialized knowledge beyond that possessed

by the average layperson based on the witness's experience

with, or specialized training or education in, criminal justice,

behavioral sciences or victim services issues, related to

sexual violence, that will assist the trier of fact in

understanding the dynamics of sexual violence, victim

responses to sexual violence and the impact of sexual

violence on victims during and after being assaulted.

(2) If qualified as an expert, the witness may testify to facts

and opinions regarding specific types of victim responses

and victim behaviors.

(3) The witness's opinion regarding the credibility of any

other witness, including the victim, shall not be admissible.

(4) A witness qualified by the court as an expert under this

section may be called by the attorney for the

Commonwealth or the defendant to provide the expert

testimony.

42 Pa.C.S.A. § 5920 (footnote omitted).

We discern no abuse of discretion or error of law in the trial court

allowing the Commonwealth’s Section 5920 sexual abuse expert to testify at

trial. As the text of Section 5920(b)(2) makes clear, a qualified expert witness

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may testify to facts and opinions regarding specific types of victim responses

and victim behaviors. Both the Commonwealth and the defense may

introduce testimony under Section 5920(b)(4). Section 5920 has no notice

requirement and does not require the production of an expert report. Here,

the Commonwealth sent Appellant notice of its intent to call Mesar as a witness

and forwarded a copy of the sexual abuse expert’s letter outlining her

proposed testimony.5 Section 5920 provides that she was permitted to testify

about “the dynamics of sexual violence, victim responses to sexual violence

and the impact of sexual violence on victims during and after being assaulted.”

42 Pa.C.S.A. § 5920(b)(1). The expert’s letter and trial testimony fell squarely

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5 Appellant attached a letter from Jamie Mesar, the Commonwealth’s

proffered Section 5920 expert, as Exhibit A-2 to his motion in limine to

preclude the expert testimony. More specifically, the letter states that the

witness is “available to provide information and testimony that may assist a

judge and/or jury in understanding the dynamics of child sexual abuse victims,

their responses to child sexual abuse, and the impact of child sexual abuse on

the victims.” The letter explains that the expert is generally prepared “to

discuss the typical ways children disclose abuse, how they react to child sexual

abuse, and coping mechanisms they may use.” The expert states that she

will explain that disclosure of child sexual abuse may be tentative, gradual,

never made, or later recanted for a wide variety of reasons including fear,

threats, a relationship to the abuser, unintended consequences of the

disclosure, bribes, and/or shame. She further opines that there is no “normal”

response to child sexual abuse and that victims experience a wide variety of

emotions and responses. Based upon the foregoing, we reject Appellant’s

claim that the letter failed to apprise him of the subject matter of Mesar’s

anticipated testimony or failed to summarize the expert’s opinions and

expected trial testimony.

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within those perimeters.6 N.T., 6/6/2019, at 90-121. Defense counsel

cross-examined the Commonwealth’s expert at length. Id. at 109-121.

Moreover, while Appellant claims that he was not able to properly rebut the

Commonwealth’s expert, Section 5920 permitted him to call his own expert in

anticipation of trial regardless of whether the Commonwealth intended to call

one. He did not. Further, if there were defense expert evidence pursuant to

Section 5920 to refute the Commonwealth’s sexual abuse expert, Appellant

has still failed to identify or produce it. Appellant had every right to retain

and consult an expert under Section 5920, but he never retained one. In

sum, we conclude that the letter from the Commonwealth’s proffered sexual

abuse expert disclosed the nature and scope of her anticipated testimony

within the parameters permitted by Section 5920 and that she confined her

trial testimony to the areas allowed by the statute. Hence, the admission of

her testimony was neither an error nor an abuse of discretion under Section

5920.

We now turn to Appellant’s claim that the trial court erred in refusing to

order an additional or supplemental expert report under Pa.R.Crim.P. 573,

which governs both mandatory and discretionary disclosures in criminal

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6 In fact, the expert testified that she was not privy to any personal

information about the victim or the specific criminal allegations in this matter.

N.T., 6/6/2019, at 103-104. Because the expert did not know any of the

specific facts in this matter, her letter explaining that she would testify

generally about victim disclosure, victim responses, and coping mechanisms

satisfied the Rule 573(B)(2)(b) requirement regarding the substance of the

facts to which the expert is expected to testify.

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matters. Pursuant to Pa.R.Crim.P. 573, the Commonwealth is required to

disclose, prior to trial “any results or reports of scientific tests, expert opinions,

and written or recorded reports of polygraph examinations or other physical

or mental examinations of the defendant that are within the possession or

control of the attorney for the Commonwealth.” Pa.R.Crim.P. 573(B)(1)(e).

“If an expert whom the attorney for the Commonwealth intends to call in any

proceeding has not prepared a report[,]” the trial court, in its discretion “may

order that the expert prepare, and that the attorney for the Commonwealth

disclose, a report stating the subject matter on which the expert is expected

to testify; the substance of the facts to which the expert is expected to testify;

and a summary of the expert's opinions and the grounds for each opinion.”

Pa.R.Crim.P. 573(B)(2)(b).

As set forth above, under Rule 573(B)(1)(e), the Commonwealth, upon

request, must disclose any expert report in its possession. In addition, if the

Commonwealth intends to call an expert who has not prepared a report, the

court, under Rule 573(B)(2)(b), may direct the preparation and disclosure of

a report. Here, the Commonwealth disclosed to Appellant a letter outlining

Mesar’s proposed testimony and there were no additional reports in the

Commonwealth’s possession. Because Mesar’s letter outlined her proposed

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testimony under Section 5920, no additional report was necessary, and the

trial court did not err in refusing to order one.7

Finally, we address Appellant’s contention that he received late notice

of the Commonwealth’s intent to call its Section 5920 expert. Under

Pa.R.Crim.P. 573(E), the trial court enjoys broad discretion to impose

remedies to address discovery violations. It “may prohibit [a] party from

introducing evidence not disclosed... or it may enter such other order as it

deems just under the circumstances.” Pa.R.Crim.P. 573(E) (emphasis added).

The trial court may also grant a continuance. Id.; see also Commonwealth

v. Smith, 955 A.2d 391, 395 (Pa. Super. 2008) (“[A] continuance is

appropriate where the undisclosed statement or other evidence is admissible

and the defendant's only prejudice is surprise.”). Moreover, this Court has

previously determined:

If a discovery violation occurs, the court may grant a trial

continuance or prohibit the introduction of the evidence or may

enter any order it deems just under the circumstances.

Pa.R.Crim.P. 573(E). The trial court has broad discretion in

choosing the appropriate remedy for a discovery violation. Our

scope of review is whether the court abused its discretion in not

excluding evidence pursuant to Rule 573(E). A defendant seeking

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7 In its opinion, the trial courted stated that “the record d[id] not reflect

whether Appellant requested an additional report.” Trial Court Opinion,

6/24/2020, at 6. Upon review, it appears that Appellant, on June 4, 2019,

filed a motion to compel additional discovery, including the preparation and

disclosure of an expert report “consistent with the standards provided under

Pa.R.Crim.P. 573(B)(2)(b).” Motion to Compel, 6/4/2020. To the extent the

trial court relied upon Appellant’s alleged failure to file a motion seeking

disclosure of a supplemental report to deny his request under Pa.R.Crim.P.

573(B)(2)(b), we reject this finding as contrary to the record.

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relief from a discovery violation must demonstrate prejudice. A

violation of discovery does not automatically entitle appellant to a

new trial.

Rather, an appellant must demonstrate how a more timely

disclosure would have affected his trial strategy or how he was

otherwise prejudiced by the alleged late disclosure.

Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003) (internal

quotations and case citations omitted).

Again, no notice was required under Section 5920. Additionally, Rule

573 does not specifically address the timing of disclosures and merely provides

potential remedies for noncompliance. Here, the trial court determined there

was no discovery violation and, for the reasons stated above, we agree.

Moreover, while Appellant baldly contends that late disclosure affected his

strategy and that he was prejudiced, he has not set forth any evidence that

refutes the Commonwealth’s expert opinion. Appellant has not demonstrated

how a more timely disclosure would have affected his trial strategy or how he

was otherwise prejudiced by the alleged late disclosure. Accordingly, for all

of the foregoing reasons, we discern no trial court abuse of discretion or error

of law in ruling on Appellant’s first evidentiary claim.

Next, Appellant claims that the trial court erred by precluding him from

calling alibi witnesses. More specifically, Appellant argues:

The accuser in this case alleged a lengthy pattern of sexual abuse

perpetrated against her by [Appellant]. In her reports to the

police, and in her sworn testimony at [Appellant’s] preliminary

hearing, the accuser had consistently said that the first instance

of abuse occurred on a date certain[, June 24, 2015,] - the date

of the birth of her sister, the father of whom is [Appellant]. Prior

to trial, Appellant filed a [n]otice of [a]libi, which identified several

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alibi witnesses. All of these people accounted for [Appellant’s]

whereabouts on the night in question: he was at the hospital,

witnessing the birth of his daughter. After [Appellant’s] alibi

notice was filed, investigators for the Commonwealth confronted

the accuser with the fact that [Appellant’s] alibi witnesses would

confirm that [Appellant] was at the hospital where his daughter

was born, and not at home [assaulting the accuser]. Only after

being confronted with this information, the accuser changed her

account concerning when the first instance of abuse occurred,

stating that the first assault actually occurred on [June 25, 2015,]

a different date than the one she had previously provided.

The trial court, relying exclusively on Commonwealth v.

Zimmerman, 571 A.2d 1062 (Pa. Super. 1990), erred when it

granted the Commonwealth's motion to exclude the testimony of

[Appellant’s] alibi witnesses on the grounds that their testimony

was rendered irrelevant by the fact that the accuser changed the

originally alleged offense date. Contrary to the trial court's ruling

and despite the fact that the accuser changed her account

concerning when the first instance of abuse occurred, testimony

of the alibi witnesses was still probative of the accuser's credibility.

Specifically, their testimony would have been probative of a

central and essential question that needed to be resolved by the

jury in determining [Appellant’s] guilt or innocence: whether the

accuser was merely mistaken about the date of the first assault or

whether she was lying.

Appellant’s Brief at 33-34.

Accordingly, Appellant maintains:

At the time the accuser was confronted by law enforcement

officers with [Appellant’s] notice of alibi, the accuser knew that

[Appellant] was proceeding to trial and that [Appellant’s proffered

alibi witnesses] - her close family members - would be called at

trial to directly contradict her story. It was simply not enough for

the jury to understand that the accuser changed her story when

confronted with [Appellant’s] alibi witnesses. The jury needed

also to understand why.

In making the credibility assessments essential to determining

[Appellant’s] guilt or innocence, the jury was entitled to explore

the relationships between the accuser and [Appellant’s] alibi

witnesses because the accuser knew that these would be the

people called to directly contradict her version of events.

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Additionally, the jury was entitled to assess the credibility of

[Appellant’s] alibi witnesses in comparison to that of the accuser.

This is so because the accuser may well have thought that the

police, the District Attorney's Office and, ultimately, the jury would

credit the testimony of her close family members over her own

and that this and this alone is what caused the accuser to change

her story. This, in turn, could permit the reasonable conclusion

that the accuser's allegations should be disbelieved altogether.

Id. at 45 (original emphasis omitted).

On this issue, the trial court stated:

Appellant filed a [n]otice of [a]libi and listed several witnesses who

could account for Appellant's whereabouts for the original incident

date. The Commonwealth notified Appellant prior to trial that the

victim had realized she had made a mistake about the date of the

incident, and that the incident occurred one day later than she

had originally reported. Appellant did not amend the [n]otice of

[a]libi. Counsel for Appellant cross-examined the victim

extensively on this issue at trial. The victim stated that, when she

was confronted with the information that Appellant had an alibi for

the original incident date, she reflected further and corrected her

statement, indicating that the event occurred a day later than she

initially stated.

Trial Court Opinion, 6/24/2020, at 7 (record citations omitted). Citing

Zimmerman, the trial court opined that once the Commonwealth notified

Appellant that it intended to prove that Appellant abused the victim on June

25, 2015, rather than on June 24, 2015, Appellant's proposed alibi defense

concerning June 24, 2015 became irrelevant. Id. at 7-8. We discern no abuse

of discretion or error of law in making that assessment.

Appellant, however, argues that the trial court should have permitted

his proffered alibi witnesses to testify about June 24, 2015 in order to test the

victim’s credibility, despite the victim having corrected the date of the first

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alleged incident of abuse. Appellant has not cited any legal authority, and our

independent research has not revealed any support, for such a proposition.

Our Supreme Court has determined that “[g]enerally, in order to constitute

an alibi, evidence must preclude the possibility of a defendant's presence at

the scene of the crime. Its relevance depends on precluding the possibility

that the defendant committed the offense; otherwise it is not an alibi.”

Commonwealth v. Johnson, 139 A.3d 1257, 1285–1286 (Pa. 2016)

(internal citation, quotations, ellipsis, and original brackets omitted).

Appellant admits that he did not intend to present the proffered witnesses to

preclude the possibility of his presence at the crime scene. For this reason,

we conclude that the proposed witnesses were no longer offered to provide an

alibi and that the trial court did not err in precluding Appellant from calling

them.8 Accordingly, there is no merit to Appellant’s second appellate claim.

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8 Moreover, this Court has previously determined:

Evidence of good character offered by a defendant in a criminal

prosecution must be limited to his general reputation for the

particular trait or traits of character involved in the commission of

the crime charged. The cross-examination of such witnesses by

the Commonwealth must be limited to the same traits. Such

evidence must relate to a period at or about the time the offense

was committed and must be established by testimony of witnesses

as to the community opinion of the individual in question, not

through specific acts or mere rumor.

In a rape case, evidence of the character of the defendant would

be limited to presentation of testimony concerning his general

reputation in the community with regard to such traits as

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Appellant’s last two claims challenge the sentence imposed by the trial

court. In his third claim, Appellant argues that the sentence imposed for IDSI

pursuant to 42 Pa.C.S.A. § 9718(a)(1) is illegal because Section 9718 was

declared unconstitutional. Appellant’s Brief at 47-51. Appellant’s fourth claim

asserts that the trial court abused its discretion by relying “on improper factors

in imposing sentence; namely, that the trial court relied on its own apparent

assessment and/or diagnosis that [Appellant] suffers from pedophilia.” Id. at

52. Because we agree that the sentence imposed for IDSI was unlawful, we

vacate the sentencing scheme ordered by the trial court and remand for

resentencing. Moreover, we decline to consider Appellant’s challenge to the

discretionary aspects of his punishment.

Here, as previously mentioned, the trial court:

concede[d] that the imposition of a sentence at Count 2 IDSI,

based on a perceived mandatory at 42 Pa.C.S.A. 9718(a)(1),

violates the Sixth Amendment to the United States Constitution

pursuant to Alleyne v. United States, 570 U.S. 99 (2013).

Appellant is therefore entitled to a resentencing hearing at Count

2. Since resentencing at this [c]ount may upset the [trial c]ourt's

overall sentencing scheme, [the trial court] requests that the

record be returned to it so that a full resentencing hearing may

occur.

Trial Court Opinion, 6/24/2020, at 8.

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non-violence or peaceableness, quietness, good moral character,

chastity, and disposition to observe good order.

Commonwealth v. Luther, 463 A.2d 1073, 1077–1078 (Pa. Super. 1983)

(internal citations and quotations omitted).

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Our Supreme Court has declared Section 9718 unconstitutional. See

Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016) (finding that

“Section 9718 is irremediably unconstitutional on its face, non-severable, and

void.”). When the trial court applies a facially unconstitutional sentencing

statute, the resultant sentence is illegal and it must be vacated. If vacating a

sentence upsets the trial court's overall sentencing scheme, however, we must

vacate the entire judgment of sentence and remand for resentencing. See

Commonwealth v. Motley, 177 A.3d 960, 963 (Pa. 2018). “The vacated

sentence has become a legal nullity” and “an entirely new sentence must be

imposed.” Commonwealth v. Caple, 121 A.3d 511, 524 (Pa. Super. 2015).

Because a new sentence will be imposed, the reasons the trial court gave for

imposing the original sentence are now entirely irrelevant and we need not

address Appellant’s discretionary sentencing claim.

In sum, Appellant is not entitled to relief on his evidentiary claims and

we affirm his convictions. The trial court imposed an illegal sentence,

however, and we must vacate it. Because vacating Appellant’s illegal sentence

upsets the trial court’s overall sentencing scheme, we remand the matter to

the trial court for resentencing without considering Appellant’s discretionary

sentencing challenge.

Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2020

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