J-A34029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DICK RAY HAMILTON

Appellant No. 492 MDA 2015

Appeal from the PCRA Order February 11, 2015

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0000640-2011

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.: FILED MARCH 21, 2016

Dick Ray Hamilton appeals the order entered February 11, 2015, in the 

Franklin County Court of Common Pleas, dismissing his first petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et 

seq. Hamilton seeks relief from the judgment of sentence of an aggregate 

term of 44 to 100 years’ imprisonment imposed on July 5, 2012, after a jury 

found him guilty of two counts of rape of a child, two counts of involuntary 

deviate sexual intercourse (“IDSI”) with a child, two counts of indecent 

assault, and two counts of endangering the welfare of children (“EWOC”).1 

On appeal, he contends the PCRA court erred in denying his petition based 

on the following: (1) trial counsel was ineffective for failing to call various 

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1 18 Pa.C.S. §§ 3121(c), 3123(b), 3126(a)(7), and 4304(b), respectively.
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witnesses; (2) trial counsel was ineffective for failing to object to certain 

prior bad acts evidence; and (3) the trial court imposed a mandatory 

minimum sentence, which violated the Supreme Court’s mandate in Alleyne 

v. United States, 133 S.Ct. 2151 (U.S. 2013). For the reasons that follow, 

we affirm in part and reverse in part the order of the PCRA court, vacate the 

judgment of sentence, and remand for resentencing.

The following relevant facts were taken from the trial court’s opinion 

following Hamilton’s direct appeal:

The evidence at trial established that [Hamilton] systematically 

abused A.B. and A.W., who were both under ten years old at the 

time. A.W. was also developmentally disabled. The abuse 

occurred inside [Hamilton’s] mobile home, where he was 

supposed to be babysitting the victims. 

Police charged [Hamilton] with ten counts, all related to the 

sexual abuse. For his part, [Hamilton] admitted to police during 

questioning—and to the jury during trial—that he exposed 

himself to the victims. He claimed that he was medically 

incapable of performing intercourse, and generally denied the

other allegations of physical sexual abuse.

Trial Court Opinion, 10/2/2012, at 1-2.

On March 15, 2012, a jury convicted Hamilton of the above-mentioned 

crimes. Hamilton filed post-trial motions, which were denied on May 11, 

2012. On July 5, 2012, the court sentenced Hamilton to terms of 120-240 

months’ imprisonment for each IDSI and rape crime pursuant to the 

mandatory minimum sentencing provisions of 18 Pa.C.S. § 9718, and terms 
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of 60-120 months’ incarceration for each indecent assault and EWOC count, 

all to be served consecutively.2 He filed a direct appeal on August 3, 2012. 

A panel of this Court affirmed his sentence on March 22, 2013, and the 

Pennsylvania Supreme Court denied his petition for allowance of appeal on 

October 16, 2013. See Commonwealth v. Hamilton, 69 A.3d 1299 [1410 

MDA 2012] (Pa. Super. 2013) (unpublished memorandum), appeal denied, 

77 A.3d 1259 (Pa. 2013).

On May 21, 2014, Hamilton filed a timely PCRA petition. An 

evidentiary hearing was held on December 1, 2014. On February 12, 2015, 

the PCRA court issued an order and opinion, denying Hamilton’s petition. 

This timely appeal followed.3

Based on the nature of Hamilton’s first two claims, we will address 

them together. In his first argument, he complains trial counsel was 

ineffective for failing to call character witnesses, his wife, and an expert 

witness to testify at trial.4 In Hamilton’s second issue, he asserts trial 

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2

 The court also determined Hamilton was a sexually violent predator.

3

 On March 12, 2015, the PCRA court ordered Hamilton to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Hamilton filed a concise statement on April 1, 2015. The trial court issued 

an opinion pursuant to Pa.R.A.P. 1925(a) on May 14, 2015.

4

 Specifically, with respect to the character witnesses, Hamilton states:

Despite the existence of numerous character witnesses willing to 

testify on [his] behalf, trial counsel chose not to call these 

(Footnote Continued Next Page)
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counsel was ineffective for failing to object to the admission of prior bad act 

evidence by the Commonwealth. Id. at 14. By way of background, during 

opening statements, the prosecutor mentioned that Hamilton showed the 

victims pornographic videos. N.T., 3/14/2012, at 6. Hamilton claims trial 

counsel “should have objected immediately and moved for a mistrial upon 

(Footnote Continued) _______________________

witnesses. [Hamilton] also related to counsel that his wife was 

willing and able to testify that he had never been alone with the 

alleged victims. Trial counsel also did not call [Hamilton]’s wife 

to testify. The trial transcript is notably devoid of any testimony 

either from character witnesses or from [Hamilton]’s wife. The 

failure to call these witnesses clearly prejudiced [his] case as 

testimony from members of the community regarding his 

character and from his cohabitating wife explaining to the jury 

that [Hamilton] was never alone with the victims would have 

been extremely relevant and compelling.

Hamilton’s Brief at 13. With regard to the expert witness, Hamilton 

contends: 

Despite [Hamilton] informing counsel of his diagnosis of 

erectile dysfunction, [trial] counsel failed to call an expert 

witness, namely [Hamilton]’s medical doctor, to testify regarding 

[Hamilton]’s condition and the resulting impossibility of 

numerous ... acts alleged by the Commonwealth. A review of the 

trial record makes it clear that no such expert testimony was 

provided. Further highlighting the impact such testimony could 

have had is the Commonwealth’s line of questioning on cross 

examination upon [Hamilton] taking the stand when she called 

into question his diagnosis of erectile dysfunction by asking, “Do 

you have the doctor here to talk about your problems with your 

not being able to be erect?” (Trial Transcript Day 2, pg. 32). 

Obviously, [Hamilton] did not have his doctor in court to testify 

to his condition due to [trial] counsel’s failure to subpoena and 

call as a witness the doctor.

Id. at 13-14.
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this utterance of prior bad acts of [Hamilton] which had not been disclosed 

to [him] or [trial] counsel pursuant to Pennsylvania Rule of Evidence 

404(b).” Hamilton’s Brief at 14. Additionally, he argues trial counsel did not 

object during direct examination of the first victim when she was asked 

about the videos, and counsel also improperly asked the victim about the 

videos during cross-examination. Id. at 15. Hamilton notes that it was not 

until after multiple Commonwealth witnesses had been called to testify that 

counsel requested a motion for a mistrial. Id. Moreover, Hamilton states 

counsel erred by filing a post-trial motion pursuant to Pennsylvania Rule of 

Criminal Procedure 720(c) (after-discovered evidence) instead of an oral 

motion for extraordinary relief. Id.5 

Before we may address the merit of these arguments, we note that 

the transcript from the December 1, 2014, PCRA hearing was not included in 

the certified record. A review of the record reveals Hamilton’s privately 

retained counsel did not include a request for transcripts in the March 11, 

2015, notice of appeal. After inquiring, this Court discovered Franklin 

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5

 Specifically, Hamilton alleges that prior to the second and final day of trial, 

the Commonwealth was informed by one of the victims’ mother that her 

daughter had been taken to the hospital and the doctors believed she had 

genital herpes. Hamilton’s Brief at 15. Hamilton avers that he does not 

have genital herpes. Id. The PCRA court determined that the appropriate 

method to preserve his right to a new trial based on this evidence would 

have been an oral motion, instead of a post-trial motion. PCRA Court 

Opinion, 2/12/2015, at 14-16. As such, Hamilton claims counsel’s 

procedural failure precluded him from being granted a new trial. Hamilton’s 

Brief at 15.
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County Court Reporter’s Office never received a request to transcribe the 

PCRA hearing.

We note the following: “[A]n appellate court is limited to considering 

only the materials in the certified record when resolving an issue.” 

Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc), 

appeal denied, 916 A.2d 632 (Pa. 2007). “Simply put, if a document is not in 

the certified record, the Superior Court may not consider it.” Id. at 7.

Moreover, this Court explained:

Where the appellant has not made the transcript of the 

proceedings at issue a part of the certified record, we have said:

With regard to missing transcripts, the Rules of Appellate 

Procedure require an appellant to order and pay for any 

transcript necessary to permit resolution of the issues 

raised on appeal. Pa.R.A.P. 1911(a). . . . When the 

appellant . . . fails to conform to the requirements of Rule 

1911, any claims that cannot be resolved in the absence of 

the necessary transcript or transcripts must be deemed 

waived for the purpose of appellate review.

[Preston, 904 A.2d] at 7.

Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014).6 

Accordingly, we conclude Hamilton’s first two arguments, which concern 

ineffective assistance of trial counsel, have been waived for appellate review 

because he has not provided this Court the transcript from the PCRA 

hearing.

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6

 Both Hamilton and the Commonwealth aver that trial counsel testified at 

the PCRA hearing, asserting he had a reasonable basis for his actions.
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Turning to Hamilton’s remaining argument, he asserts he was 

sentenced, in part, pursuant to the mandatory sentencing statute, 42 

Pa.C.S. § 9718, which subsequently has been found to be unconstitutional, 

pursuant to Alleyne and its progeny. Hamilton’s Brief at 15. Consequently, 

Hamilton argues his four consecutive terms of 120-240 months’ 

imprisonment for IDSI and rape are illegal.7 

Our standard of review is well-settled: 

Our standard of review of an order denying PCRA relief is 

whether the record supports the PCRA court’s determination and 

whether the PCRA court’s decision is free of legal error. The 

PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record. 

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal 

citations omitted). 

In Alleyne, the United States Supreme Court held “[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.” Alleyne, 133 S.Ct. at 

2155. In applying that mandate, an en banc panel of this Court, in 

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), 

appeal denied, 121 A.3d 496 (Pa. 2015), held that Alleyne rendered the 

mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1, 

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7

 The PCRA court and the Commonwealth both agree that Hamilton’s 

sentence is illegal and a remand is necessary for re-sentencing. See PCRA 

Court Opinion, 5/14/2015, at 5-28; Commonwealth’s Brief at 14.
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unconstitutional. Section 9712.1, which provides for a five-year mandatory 

minimum prison term when a defendant possesses or is in close proximity to 

a firearm while selling illegal drugs, includes a provision that permits the 

trial court to determine at sentencing whether the elements necessary to 

increase the mandatory minimum sentence were proven by a preponderance 

of the evidence. See 42 Pa.C.S. § 9712.1(c). The Newman Court held 

that, under Alleyne, Section 9712.1 “can no longer pass constitutional 

muster [because] it permits the trial court, as opposed to the jury, to 

increase a defendant’s minimum sentence based upon a preponderance of 

the evidence” standard. Newman, supra, 99 A.3d at 98.

Further, the Newman Court found the unconstitutional provisions in 

Section 9712.1 were not severable from the statute as a whole. See id. at 

101 (“We find Subsections (a) and (c) of Section 9712.1 are essentially and 

inseparably connected.”). Recently, the Pennsylvania Supreme Court in 

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), applied the same 

reasoning when it determined that another mandatory minimum sentencing 

statute, 18 Pa.C.S. § 6317, was unconstitutional under Alleyne. The 

Supreme Court opined:

In conclusion, we hold ... that numerous provisions of 

Section 6317 are constitutionally infirm under Alleyne. 

Moreover, the remaining provisions of Section 6317, standing 

alone, are incomplete and are incapable of being vindicated in 

accord with the intent of the General Assembly. 1 Pa.C.S. § 

1925. Because of the significant provisions found to violate the 

Constitution, which clearly express the intent of the legislature 

that Section 6317 is a mandatory minimum sentencing statute, 
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and not a substantive offense, we find the remaining unoffending 

provisions of Section 6317 are incapable of being severed, and 

we will not judicially usurp the legislative function and rewrite 

Section 6317 or create a substantive offense which the General 

Assembly clearly did not desire. Rather, we leave it to our sister 

branch for an appropriate statutory response to the United 

States Supreme Court’s decision in Alleyne.

Id. at 262.

The mandatory sentencing statute applied sub judice, 42 Pa.C.S. § 

9718, contains the same provision as in Sections 6317 and 9712.1, which 

permits the trial court to make factual determinations at sentencing under 

the relaxed preponderance of the evidence standard, and which has been 

found to be unconstitutional under Alleyne. Indeed, in Commonwealth v. 

Wolfe, 106 A.3d 800 (Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa. 

2015), a panel of this Court held that Section 9718 is “facially 

unconstitutional.” Id. at 805 (holding “the mandatory minimum statute in 

this case contains the same format as the statutes struck down as facially 

unconstitutional in Newman and Valentine. See 42 Pa.C.S.A. §§ 9712(a), 

9712(c), 9712.1(a), 9712.1(c), 9713(a), 9713(c), 9718(a), 9718(c). 

Following Newman’s instructions, we are required to conclude that Section 

9718 is also facially unconstitutional.”).

Nevertheless, our review does not end there. We “note the Newman

Court instructed that Alleyne applies only to cases pending on direct appeal 

as of June 27, 2013, the date of the Alleyne decision.” Commonwealth v. 

Ruiz, __ A.3d __, 2015 PA Super 275, *9 (Pa. Super. Dec. 30, 2015). 
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It is also settled that Alleyne does not invalidate a mandatory 

minimum sentence when presented in an untimely PCRA petition. See 

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014).8 Furthermore, 

this Court also recently declined to give Alleyne retroactive effect to cases 

on timely collateral review when the defendant’s judgment of sentence was 

finalized before Alleyne was decided. See Commonwealth v. Riggle, 119 

A.3d 1058 (Pa. Super. 2015).9

In Commonwealth v. Ruiz, ___ A.3d ___, 2015 PA Super 275 [1925 

MDA 2014] (Pa. Super. filed December 30, 2015), this Court once again 

revisited the Alleyne timeliness issue. It distinguished the underlying case 

from Miller and Riggle with respect to the fact that the defendant had filed 

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8

 In concluding Alleyne does not satisfy the new retroactive constitutional 

right exception to the PCRA’s one year time bar, 42 Pa.C.S. § 

9545(b)(1)(iii), the Miller Court explained:

Even assuming that Alleyne did announce a new constitutional 

right, neither our Supreme Court, nor the United States 

Supreme Court has held that Alleyne is to be applied 

retroactively to cases in which the judgment of sentence 

had become final. This is fatal to Appellant’s argument 

regarding the PCRA time-bar. This Court has recognized that a 

new rule of constitutional law is applied retroactively to cases on 

collateral review only if the United States Supreme Court or our 

Supreme Court specifically holds it to be retroactively applicable 

to those cases.

Id. at 995 (citations omitted) (emphasis supplied).

9 We note this issue is presently before an en banc panel of this Court. See

Commonwealth v. Aybar, 1224 MDA 2014 [E01010-16, Feb. 23, 2016].
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a timely PCRA petition and his judgment of sentence was finalized after 

Alleyne was decided. Id. at *11. 

The Ruiz Court determined: 

[W]e are guided by this Court’s discussion in Newman, where 

the appellant’s judgment of sentence was affirmed by this Court 

five days before the United States Supreme Court issued 

Alleyne. This Court recognized:

Although this court had already rendered its decision in 

appellant’s appeal at the time Alleyne was announced, we 

retain jurisdiction for 30 days thereafter, to modify or 

rescind our holding, or grant reargument as we have here, 

so long as the appellant does not seek allowance of appeal 

before our supreme court. See 42 Pa.C.S.A. § 5505. 

Moreover, our decision does not become final until 30 days 

have elapsed and the time for filing a petition for 

allowance of appeal with our supreme court expires. See

Pa.R.A.P., Rule 1113(a), 42 Pa.C.S.A. § 5505. Therefore, 

appellant’s case was still pending on direct appeal when 

Alleyne was handed down, and the decision may be 

applied to appellant’s case retroactively.

Newman, 99 A.3d at 90 (footnote omitted).

Here, similar to the appellant in Newman, [the defendant’s] 

June 5, 2013, judgment of sentence was not final when Alleyne

was decided because, in this case, the 30-day period within 

which the trial court’s order may be appealed, modified or 

rescinded, had not yet expired on June 17, 2013 — the date of 

the Alleyne decision. See Pa.R.A.P. 903(a), 42 Pa.C.S. § 5505. 

As such, [the defendant’s] case “was still pending on direct 

appeal when Alleyne was handed down, and the decision may 

be applied to [the defendant’s] case retroactively.” Newman, 

id.

The Newman Court also made clear that an Alleyne claim is a 

non-waivable challenge to the legality of sentence. Such a claim 

may be raised on direct appeal, or in a timely filed PCRA 

petition. See 42 Pa.C.S. § 9542 (“persons serving illegal 

sentences may obtain collateral relief”); Commonwealth v. 

Hockenberry, 455 Pa. Super. 626, 689 A.2d 283, 288 (Pa. 
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Super. 1997) (“Issues relating to the legality of sentence cannot 

be waived and are cognizable under the PCRA”; addressing 

challenge to imposition of a mandatory minimum under 18 

Pa.C.S. § 7508(a)). Indeed, in Newman, the en banc panel 

recognized that Alleyne constituted a “new rule” that “applies to 

all criminal cases still pending on direct review.” Newman, 

supra, 99 A.3d at 90 (emphasis supplied), quoting Schriro v. 

Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 

(2004). Although the procedural posture in the present appeal 

differs from Newman in that [the defendant] raised his claim in 

a timely PCRA petition, the fact remains that [the defendant’s] 

judgment of sentence was “still pending on direct review” when 

Alleyne was decided. Newman, id.

Ruiz, 2015 PA Super 275, *12-14 (footnote omitted).10

Turning to the present matter, Hamilton was found guilty on March 15, 

2012, and sentenced on July 6, 2012. On March 22, 2013, this Court 

affirmed his judgment of sentence. Hamilton then filed a timely petition of 

allowance of appeal with the Pennsylvania Supreme Court on April 25, 2013. 

While his case was pending before the Pennsylvania Supreme Court, the 

United States Supreme Court filed its decision in Alleyne on June 17, 2013. 

Thereafter, on October 16, 2013, the Pennsylvania Supreme Court denied 

Hamilton’s petition. 

We note a sentence is deemed final “at the conclusion of direct review, 

including discretionary review in the Supreme Court of the United States and 

the Supreme Court of Pennsylvania, or at the expiration of time for seeking 

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10

 As of the date of this memorandum, the Pennsylvania Supreme Court has 

not definitively determined whether an Alleyne challenge implicates the 

legality of the sentencing. See Commonwealth v. Wolfe, 121 A.3d 433, 

434 (Pa. 2015).
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review.” 42 Pa.C.S. § 9545(b)(3). Accordingly, Hamilton’s judgment of 

sentence became final on January 14, 2014, 90 days after the Pennsylvania 

Supreme Court denied his petition for allowance of appeal and the time for 

filing a petition for review with the United States Supreme Court expired. 

See U.S.Sup.Ct.R. 13.

Therefore, in accordance with Newman and Ruiz, Hamilton’s July 6, 

2012, judgment of sentence was not final when Alleyne was decided 

because the matter was still pending before the Pennsylvania Supreme 

Court. Consequently, Hamilton’s case “was still pending on direct appeal 

when Alleyne was handed down, and the decision may be applied to [the 

defendant’s] case retroactively.” Newman, 99 A.3d at 90. Moreover, 

Hamilton filed a timely PCRA petition on May 21, 2014, well within the one 

year of the date that his judgment of sentence became final. See 42 

Pa.C.S. § 9545(b)(1). As such, like Ruiz, the holdings in Miller and Riggle

are not implicated herein.11

Based on our review of the procedural background of this case and the 

relevant law, we agree with the PCRA court’s conclusion in its May 14, 2015, 

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11

 Furthermore, it merits mention that Hamilton raised this issue for the first 

time in his concise statement. This is of no consequence as we recognize 

that “[i]ssues relating to the legality of sentence cannot be waived and are 

cognizable under the PCRA.” Commonwealth v. Hockenberry, 689 A.2d 

283, 288 (Pa. Super. 1997), appeal denied, 695 A.2d 784 (Pa. 1997). See 

also Newman, 99 A.3d at 90; Commonwealth v. Roney, 866 A.2d 351 

(Pa. 2005), cert. denied, 546 U.S. 860 (2005).
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Rule 1925(a) opinion that Hamilton is entitled to be resentenced without 

consideration of the mandatory minimum sentencing provision of 42 Pa.C.S. 

§ 9718. Accordingly, finding error in the PCRA court’s dismissal of 

Hamilton’s petition, we reverse the order denying PCRA relief, vacate the 

judgment of sentence, and remand for resentencing. In all other respects, 

we affirm.

Order affirmed in part and reversed in part. Judgment of sentence 

vacated. Case remanded for proceedings consistent with this memorandum. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/21/2016