Com. v. Peters, G. ( 2014 )


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  • J-S69009-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    GENE PETERS
    Appellant                   No. 2498 EDA 2013
    Appeal from the Judgment of Sentence August 5, 2013
    In the Court of Common Pleas of Montgomery County
    Criminal Division at No(s): CP-46-CR-0006342-2011
    BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.
    MEMORANDUM BY GANTMAN, P.J.:                        FILED DECEMBER 02, 2014
    Appellant, Gene Peters, appeals from the judgment of sentence
    entered in the Montgomery County Court of Common Pleas, following his
    stipulated bench trial conviction for involuntary deviate sexual intercourse
    (child under 16 years of age) (“IDSI”).1 We affirm Appellant’s conviction but
    vacate and remand for resentencing.
    In its opinions, the trial court set forth the relevant facts and
    procedural history of this case.         Therefore, we have no reason to restate
    them.
    Appellant raises one issue for our review:
    ____________________________________________
    1
    18 Pa.C.S.A. § 3123(a)(7).
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    WHETHER THE TRIAL COURT ERRED IN DENYING
    APPELLANT’S MOTION TO SUPPRESS STATEMENTS
    BECAUSE APPELLANT’S WAIVER OF MIRANDA[2] RIGHTS
    WAS NOT THE RESULT OF A FREE AND DELIBERATE
    CHOICE OF APPELLANT?
    (Appellant’s Brief at 4).
    After a thorough review of the record, the briefs of the parties, the
    applicable law, and the well-reasoned opinions of the Honorable Thomas C.
    Branca, we conclude Appellant’s issue merits no relief.       The trial court
    opinions comprehensively discuss and properly dispose of the question
    presented.      (See Trial Court Opinion, filed March 7, 2014, at 5-10;
    Suppression Court Opinion, filed May 24, 2012, at 4-6) (finding: ten and
    one-half hour delay between Appellant’s arrest and Appellant’s statement to
    police was not aimed to overcome Appellant’s will; Detective Angelucci is
    only sex crimes detective in Norristown Police Department and had to attend
    to other matters on morning of Appellant’s arrest, before speaking with
    Appellant; Appellant admitted he slept virtually entire time he was in
    custody; detective offered Appellant food and drink during interview, and
    Appellant waived Miranda warnings and gave voluntary statement to police;
    during period Appellant was in custody he had access to toilet and water
    fountain; record fails to show Appellant suffered from any adverse physical
    condition while in custody; Detective Angelucci testified credibly that
    ____________________________________________
    2
    Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S.Ct. 1602
    , 
    16 L.Ed.2d 694
     (1966).
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    Appellant appeared calm, alert, and coherent during interview; detective’s
    discussion      with     Appellant    about    getting    treatment      merely    reflected
    detective’s attitude that Appellant needed help and was not meant to coerce
    Appellant to make statement; Detective Angelucci made no promises in
    exchange for Appellant’s statement; record belies Appellant’s claim that he
    was intoxicated during interview; court properly denied suppression motion
    where Appellant’s waiver of Miranda rights was knowing, voluntary and
    intelligent).         Accordingly, we affirm the court’s denial of Appellant’s
    suppression motion on the basis of the trial court’s opinions.
    Nevertheless, we are mindful of the United States Supreme Court’s
    decision in Alleyne v. United States, ___ U.S. ___, 
    133 S.Ct. 2151
    , 
    186 L.Ed.2d 314
     (2013), in which the Court expressly held that any fact
    increasing the mandatory minimum sentence for a crime is considered an
    element of the crime to be submitted to the fact-finder and found beyond a
    reasonable doubt.         
    Id.
         Here, the court imposed the mandatory minimum
    sentence under a former version of 42 Pa.C.S.A. § 9718 (governing
    sentences       for    offenses    against    infant   persons)    for   Appellant’s   IDSI
    conviction.      Consequently, we elect to review the legality of Appellant’s
    sentence sua sponte.            See Commonwealth v. Edrington, 
    780 A.2d 721
    (Pa.Super.      2001)      (explaining   challenge       to   application   of    mandatory
    minimum sentence is non-waiveable challenge to legality of sentence, which
    this Court can raise sua sponte, assuming jurisdiction is proper).
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    Section 9718(a)(1) sets forth a mandatory minimum sentence of ten
    (10) years’ imprisonment where a defendant is convicted of IDSI involving a
    victim under sixteen (16) years of age.           See 42 Pa.C.S.A. § 9718(a)(1)
    (effective January 1, 2007 to August 17, 2014).            Section 9718(c) of this
    statute states that its provisions shall not be an element of the crime and
    applicability of the statute shall be determined by the court at sentencing by
    a preponderance of the evidence. 42 Pa.C.S.A. § 9718(c).3
    Recently, in Commonwealth v. Newman, 
    99 A.3d 86
     (Pa.Super.
    2014) (en banc), this Court addressed the constitutionality of a mandatory
    minimum sentencing statute containing language similar to Section 9718(c).
    This Court analyzed whether Newman’s mandatory minimum sentence was
    constitutional in light of the United States Supreme Court’s decision in
    Alleyne, 
    supra.
           Relying on Alleyne, Newman held that Section 9712.1
    can no longer pass constitutional muster as it “permits the trial court, as
    opposed to the jury, to increase a defendant’s minimum sentence based
    upon a preponderance of the evidence that the defendant was dealing drugs
    and possessed a firearm, or that a firearm was in close proximity to the
    drugs.” Newman, supra at 98. Thus, this Court vacated Newman’s PWID
    sentence     and   remanded       for   resentencing   without   imposition   of   the
    ____________________________________________
    3
    The current version of Section 9718 contains the same mandatory
    minimum sentence for Appellant’s crime and the same language contained in
    Section 9718(c). See 42 Pa.C.S.A. § 9718 (effective August 18, 2014).
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    mandatory minimum under Section 9712.1.4 See also Commonwealth v.
    Valentine, ___ A.3d ___, 
    2014 PA Super 220
     (filed October 3, 2014)
    (involving appeal of sentence arising from jury trial; extending logic of
    Alleyne and Newman to Sections 9712 and 9713 and holding those
    sections are likewise unconstitutional insofar as they permit automatic
    increase of defendant’s sentence based on preponderance of evidence
    standard).
    Here, the court found Appellant guilty of IDSI of a child less than 16
    years per 18 Pa.C.S.A. § 3123(a)(7), following a stipulated bench trial. The
    record indicates Appellant proceeded to a stipulated bench trial to preserve
    his suppression challenge for appellate review. (See N.T. Stipulated Bench
    Trial, 10/16/12, at 7-8.)       The Commonwealth agreed to withdraw another
    charge in the case and to seek no more than the mandatory minimum under
    Section 9718. (See id. at 11-12.)5 Appellant made clear he was stipulating
    that the Commonwealth’s presentation of the victim’s testimony was
    consistent with what the victim would say if called to testify; Appellant did
    not stipulate that the Commonwealth’s presentation of evidence was true.
    ____________________________________________
    4
    This Court also made clear that Alleyne is subject to limited retroactivity;
    in other words, Alleyne is applicable to all criminal cases still pending on
    direct review. Id. at 90. Because Newman’s case was still pending on direct
    appeal, the holding in Alleyne applied to Newman’s case.
    5
    The Commonwealth ultimately withdrew all charges in the criminal
    information except the IDSI charge.
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    (Id.)
    Following the court’s conclusion that Appellant’s decision to waive a
    jury trial and proceed to a stipulated bench trial was knowing, intelligent,
    and voluntary, the Commonwealth presented, inter alia, the following
    evidence: if the case proceeded to a traditional bench or jury trial, the
    Commonwealth would call the victim to testify; the victim is eleven years old
    and was nine years old at the time of the offense; on August 8, 2011,
    Appellant was staying in the victim’s home for the night as a guest of the
    victim’s mother; in the early morning hours of that day, the victim was lying
    on the floor of the living room and fell asleep next to Appellant; Appellant
    anally penetrated the victim; the Commonwealth would also call Detective
    Angelucci as a witness, who would testify consistent with his testimony at
    the suppression hearing.       The Commonwealth also admitted into evidence
    Appellant’s written waiver of Miranda rights and Appellant’s statement to
    police. Following closing arguments, the court convicted Appellant of IDSI of
    a child less than 16 years.
    Notably, Appellant did not dispute the victim’s age. Further, nothing in
    Alleyne     suggests   it   applies   to   a   stipulated bench   trial   where   the
    Commonwealth presented evidence of the fact which triggered imposition of
    the mandatory minimum (the victim’s age), and the court expressly
    convicted Appellant under a statute which contains that same fact as an
    element of the crime. See 18 Pa.C.S.A. § 3123(a)(7). See also Alleyne,
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    supra. Nevertheless, based on Appellant’s qualified stipulation and in an
    abundance of caution, given this Court’s decisions in Newman and
    Valentine, we vacate and remand for resentencing.6 Accordingly, we affirm
    Appellant’s conviction, but we vacate the judgment of sentence and remand
    for resentencing without imposition of a mandatory minimum sentence.
    Judgment of sentence vacated; case remanded for resentencing.
    Jurisdiction is relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/2/2014
    ____________________________________________
    6
    In Commonwealth v. Matteson, 
    96 A.3d 1064
     (Pa.Super. 2014), this
    Court upheld imposition of the mandatory minimum sentence under Section
    9718 for the defendant’s aggravated indecent assault of a child conviction
    following a jury trial.   See 
    id.
     (explaining Sixth Amendment concerns
    present in Alleyne are not implicated where Commonwealth charged
    defendant with aggravated indecent assault of child which requires that
    victim is less than 13 years of age, and victim testified she was 11 years old
    at time of incident; therefore, jury specifically found beyond reasonable
    doubt element required to impose mandatory minimum sentence under
    Section 9718). This Court in Valentine expressly considered Matteson
    when ruling and nevertheless adhered to this Court’s en banc decision in
    Newman (decided after Matteson). See Valentine, supra at *9 n.4. We
    reach the same decision here.
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