Opinion
J-S43031-15 No. 3090 EDA 2013
08-25-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. NATHANIEL A. SPADY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 1, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001950-2010; CP-23-CR-0007802-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Nathaniel A. Spady, appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas, following his jury trial convictions for nine (9) counts of sexual abuse of children, two (2) counts each of rape of a child, statutory sexual assault, involuntary deviate sexual intercourse ("IDSI"), and indecent assault, and one (1) count each of corruption of minors and criminal use of communication facility. We affirm the convictions but vacate the judgment of sentence and remand for resentencing.
In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises four issues for our review:
DID THE TRIAL COURT ERR IN PROHIBITING APPELLANT FROM PRESENTING TESTIMONY AND EVIDENCE THROUGH [N.K.] AND HIMSELF OF AN ADMISSION BY AN ALTERNATE PERPETRATOR, [A.C., JR.] ("BUTCHY") THAT HE WAS THE INDIVIDUAL WHO SEXUALLY ABUSED THE VICTIM?(Appellant's Brief at 4).
DID THE TRIAL COURT ERR IN PROHIBITING APPELLANT FROM QUESTIONING THE COMMONWEALTH WITNESSES AND PRESENTING EVIDENCE ABOUT THE ALLEGED SEXUAL ABUSE OF THE VICTIM BY..., [A.C., JR.] ("BUTCHY")[?]
DID THE TRIAL COURT ERR BY DENYING APPELLANT HIS 6TH AMENDMENT RIGHT TO CONFRONTATION BY BEING PROHIBITED FROM CROSS-EXAMINING [VICTIM] AND COMMONWEALTH WITNESSES ABOUT [A.C., JR.] ("BUTCHY"), THE ALTERNATE PERPETRATOR?
DID THE TRIAL COURT ERR IN DENYING APPELLANT'S MOTION TO SUPPRESS HIS STATEMENT GIVEN ON DECEMBER 18, 2009 SINCE IT WAS COERCED AND INDUCED UNDER A WAIVER THAT WAS NOT KNOWING, VOLUNTARY AND INTELLIGENT?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Gregory M. Mallon, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed August 21, 2014, at 12-20 and Appendix A) (finding: (1-2) court properly prohibited Appellant from presenting evidence regarding Butchy as alternate perpetrator; Appellant sought to question his grandfather, N.K., about phone call N.K. had received, wherein Butchy admitted molesting Victim; court found proposed testimony constituted inadmissible hearsay; although Butchy allegedly made statement against penal interest and was unavailable at time of trial, Appellant failed to show statement was made under reliable circumstances; moreover, proposed testimony amounted to collateral matter that did not make it less likely Appellant had committed offenses at issue; proposed testimony would only show that Butchy possibly committed separate sexual assault; (3) court did not deny Appellant's right to confront witnesses against him; defense counsel vigorously cross-examined Commonwealth's witnesses; court did not obstruct Appellant's ability to subpoena Butchy; additionally, Victim identified Appellant as abuser; Appellant admitted molesting Victim and provided details about sexual assaults; (4) police interview with Appellant on December 18, 2009 did not amount to functional equivalent of arrest; Appellant voluntarily drove to detective's office and agreed to answer all questions; detective informed Appellant he could stop answering questions at any time; interview lasted approximately thirty minutes, and Appellant was not handcuffed or restrained in any way; even if interview constituted custodial detention, detective gave Appellant proper warnings and Appellant executed knowing and voluntary waiver of rights after warnings from detective). Accordingly, we affirm Appellant's convictions on the basis of the trial court opinion.
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Nevertheless, we see in the certified record that Appellant was sentenced on the convictions for rape of a child and IDSI, pursuant to 42 Pa.C.S.A. § 9718. Section 9718(a)(1) sets forth a mandatory minimum sentence of ten years' imprisonment where a defendant is convicted of IDSI involving a victim who is less than sixteen (16) years of age. Section 9718(a)(3) sets forth a mandatory minimum sentence of ten (10) years' imprisonment where a defendant is convicted of rape of a child. Section 9718(c) states that these statutory provisions shall not be an element of the crime and applicability of the statute shall be determined at sentencing by a preponderance of the evidence. 42 Pa.C.S.A. § 9718(c).
The sentencing order does not specifically mention imposition of the mandatory minimum sentences. Nevertheless, the Commonwealth informed the court of the applicability of the mandatory minimum statute immediately after the announcement of the verdict. ( See N.T. Trial, 12/6/12, at 259.) At the subsequent sentencing hearing, the court announced it had considered "[t]he mandatory requirements of four of the convictions." ( See N.T. Sentencing Hearing, 5/8/13, at 165.) Thereafter, the court sentenced Appellant in compliance with Section 9718.
Recently, this Court directly addressed the constitutionality of Section 9718 in Commonwealth v. Wolfe , 106 A.3d 800 (Pa.Super. 2014), where the trial court had imposed mandatory minimum sentences for multiple IDSI convictions, pursuant to Section 9718(a)(1). On appeal, this Court struck down Section 9718, as facially unconstitutional. Id. (citing Alleyne v. United States , ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Alleyne is applicable to all criminal cases still pending on direct review. Commonwealth v. Newman , 99 A.3d 86 (Pa.Super. 2014) (en banc).
"An unconstitutional statute is ineffective for any purpose [as] its unconstitutionality dates from the time of its enactment and not merely from the date of the decision holding it so." Commonwealth v. Michuck , 686 A.2d 403, 407 ([Pa.Super.] 1996), appeal denied, 548 Pa. 668, 698 A.2d 593 (1997). "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated." Commonwealth v. Stevenson , 850 A.2d 1268, 1271 (Pa.Super. 2004) (en banc). We can raise and review an illegal sentence sua sponte. Commonwealth v . Oree , 911 A.2d 169, 172 (Pa.Super. 2006), appeal denied, 591 Pa. 699, 918 A.2d 744 (2007).Commonwealth v. Muhammed , 992 A.2d 897, 903 (Pa.Super. 2010).
Appellant's reply brief also raises the legality of his sentence, based inter alia on Alleyne , Commonwealth v. Hopkins , ___ A.3d ___, 2015 WL 3949099 (Pa. June 15, 2015), and Wolfe.
Instantly, the jury convicted Appellant on two counts each of rape of a child and IDSI of a child. At sentencing, the court appears to have applied Section 9718. Given this Court's binding decision in Wolfe , we must vacate the judgment of sentence in its entirety and remand for resentencing. See Commonwealth v. Bartrug , 732 A.2d 1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding sentencing error on one count in multi-count case generally requires all sentences for all counts to be vacated so court can restructure entire sentencing scheme). See also Commonwealth v. Goldhammer , 512 Pa. 587, 593, 517 A.2d 1280, 1283 (1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987)) (stating generally if appellate court alters overall sentencing scheme, then remand for re-sentencing is proper). Accordingly, we affirm Appellant's convictions but vacate the judgment of sentence and remand for resentencing without the mandatory minimums.
Judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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