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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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). J-S69009-14
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).
-2- J-S69009-14
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).
-3- J-S69009-14
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).
-4- J-S69009-14
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.
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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). J-S69009-14
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).
-2- J-S69009-14
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).
-3- J-S69009-14
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).
-4- J-S69009-14
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.
-5- J-S69009-14
(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,
-6- J-S69009-14
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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