J-A26024-14

2014 PA Super 288

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MATTHEW BRYAN WOLFE

Appellant No. 1962 MDA 2013

Appeal from the Judgment of Sentence October 1, 2013

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0005791-2012

BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

OPINION BY MUNDY, J.: FILED DECEMBER 24, 2014

Appellant, Matthew Bryan Wolfe, appeals from the October 1, 2013, 

aggregate judgment of sentence of ten to 20 years’ imprisonment, imposed 

after he was found guilty of two counts of involuntary deviate sexual 

intercourse (IDSI), one count of unlawful contact with a minor, four counts 

of statutory sexual assault, and one count of corruption of minors.1 After 

careful review, we vacate and remand for resentencing.

We summarize the relevant factual and procedural background of this 

case as follows. On January 15, 2013, the Commonwealth filed an 

information charging Appellant with the above-mentioned offenses, as well 

____________________________________________

1 18 Pa.C.S.A. §§ 3123(a)(7), 6318(a)(1), 3122.1(a)(1), and 6301(a)(1)(i), 

respectively.
J-A26024-14

- 2 -

as two additional counts of IDSI, and one count each of aggravated indecent 

assault and indecent exposure.2 On June 12, 2013, Appellant proceeded to 

a two-day jury trial, at the conclusion of which Appellant was found guilty of 

two counts of IDSI, one count of unlawful contact with a minor, four counts 

of statutory sexual assault, and one count of corruption of minors. The jury 

acquitted Appellant of one count each of IDSI and aggravated indecent 

assault. The fourth IDSI count and the indecent exposure count were 

dismissed by the trial court. 

On October 1, 2013, the trial court imposed an aggregate sentence of 

ten to 20 years’ imprisonment. Relevant to this appeal, Appellant received a 

ten-year mandatory minimum sentence for each IDSI count pursuant to 42 

Pa.C.S.A. § 9718(a)(1). Appellant did not file a post-sentence motion. On 

October 31, 2013, Appellant filed a timely notice of appeal.3

On appeal, Appellant raises the following issue for our review.

In the context of imposing [a] sentence for otherwise 

consensual oral sex activity between a defendant as 

young as 18 and a complainant between the ages of 

13 and 16, does Pennsylvania’s entire sentencing 

scheme violate [Appellant]’s constitutional rights to 

equal protection of the laws, due process, and the 

right against cruel and unusual punishment because 

it imposes vastly greater sentences for otherwise 

consensual oral sex activity by means of the 10-year 

____________________________________________

2 18 Pa.C.S.A. §§ 3125(a)(8) and 3127(a), respectively.

3 Appellant and the trial court have complied with Pa.R.A.P. 1925.
J-A26024-14

- 3 -

mandatory provision at 42 Pa.C.S. § 9718 than it 

does for otherwise consensual vaginal sex activity?

Appellant’s Brief at 5.

At the outset, we note that Appellant’s sole issue on appeal challenges 

the constitutionality of the mandatory minimum sentencing provision at 

Section 9718. Appellant avers that Section 9718 violates the Equal 

Protection and Due Process Clauses of the Fourteenth Amendment, as well 

as the Cruel and Unusual Punishment Clause of the Eighth Amendment. 

However, we need not address these arguments, as we conclude that 

Appellant’s sentence is illegal on a different basis.

We begin by noting that a challenge to the legality of the sentence can 

never be waived and may be raised by this Court sua sponte. 

Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014) 

(citation omitted). We further note that issues pertaining to the United 

States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 

2151 (2013), directly implicate the legality of the sentence. 

Commonwealth v. Lawrence, --- A.3d ---, 2014 WL 4212715, *6-7 (Pa. 

Super. 2014). With this in mind, we proceed by noting our well-settled 

standard of review of questions involving the legality of a sentence. 

“A challenge to the legality of a sentence ... may be entertained as long 

as the reviewing court has jurisdiction.” Commonwealth v. Borovichka, 

18 A.3d 1242, 1254 (Pa. Super. 2011) (citation omitted). It is also wellestablished that “[i]f no statutory authorization exists for a particular 
J-A26024-14

- 4 -

sentence, that sentence is illegal and subject to correction.” 

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (citation 

omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the 

legality of a sentence are questions of law[.] ... Our standard of review over 

such questions is de novo and our scope of review is plenary.” 

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citations 

omitted).

In this case, Appellant was sentenced under the mandatory minimum 

statute at Section 9718, which provides in relevant part, as follows.

§ 9718. Sentences for offenses against infant 

persons

(a) Mandatory sentence.--

(1) A person convicted of the following 

offenses when the victim is less than 16 years 

of age shall be sentenced to a mandatory term 

of imprisonment as follows: 

...

18 Pa.C.S. § 3123 (relating to involuntary 

deviate sexual intercourse)--not less than ten 

years. 

...

(c) Proof at sentencing.--The provisions of this 

section shall not be an element of the crime, and 

notice of the provisions of this section to the 

defendant shall not be required prior to conviction, 

but reasonable notice of the Commonwealth’s 

intention to proceed under this section shall be 

provided after conviction and before sentencing. The 

applicability of this section shall be determined at 
J-A26024-14

- 5 -

sentencing. The court shall consider any evidence 

presented at trial and shall afford the Commonwealth 

and the defendant an opportunity to present any 

necessary additional evidence and shall determine, 

by a preponderance of the evidence, if this section is 

applicable.

...

42 Pa.C.S.A. § 9718.

In Alleyne, the Supreme Court held that “facts that 

increase mandatory minimum sentences must be 

submitted to the jury” and must be found beyond a 

reasonable doubt. Alleyne, supra at 2163. 

Alleyne is an extension of the Supreme Court’s line 

of cases beginning with Apprendi v. New Jersey, 

530 U.S. 466 (2000). In Alleyne, the Court 

overruled Harris v. United States, 536 U.S. 545 

(2002), in which the Court had reached the opposite 

conclusion, explaining that there is no constitutional 

distinction between judicial fact finding which raises 

the minimum sentence and that which raises the 

maximum sentence.

It is impossible to dissociate the floor of 

a sentencing range from the penalty affixed to 

the crime. Indeed, criminal statutes have long 

specified both the floor and ceiling of sentence 

ranges, which is evidence that both define the 

legally prescribed penalty. This historical 

practice allowed those who violated the law to 

know, ex ante, the contours of the penalty that 

the legislature affixed to the crime—and 

comports with the obvious truth that the floor 

of a mandatory range is as relevant to 

wrongdoers as the ceiling. A fact that 

increases a sentencing floor, thus, forms an 

essential ingredient of the offense.

Moreover, it is impossible to dispute that 

facts increasing the legally prescribed floor 

aggravate the punishment. Elevating the lowend of a sentencing range heightens the loss of 
J-A26024-14

- 6 -

liberty associated with the crime: the 

defendant’s expected punishment has 

increased as a result of the narrowed range 

and the prosecution is empowered, by invoking 

the mandatory minimum, to require the judge 

to impose a higher punishment than he might 

wish. Why else would Congress link an 

increased mandatory minimum to a particular 

aggravating fact other than to heighten the 

consequences for that behavior? This reality 

demonstrates that the core crime and the fact 

triggering the mandatory minimum sentence 

together constitute a new, aggravated crime, 

each element of which must be submitted to 

the jury.

Alleyne, supra at 2160-2161 (internal quotation marks 

and citations omitted).

Commonwealth v. Miller, --- A.3d ---, 2014 WL 4783558, *4-5 (Pa. 

Super. 2014).

In Commonwealth v. Newman, --- A.3d ---, 2014 WL 4088805 (Pa. 

Super. 2014) (en banc), this Court confronted the same type of challenge to 

the mandatory minimum sentence found at Section 9712.1, regarding the 

proximity between drugs and guns. See id. at *3. Section 9712.1 had the 

same format as Section 9718 insofar that one subsection contains the 

additional fact that triggers the mandatory penalty, and another subsection 

states that this fact shall be found by the trial court by a preponderance of 

the evidence at sentencing. See id., quoting 42 Pa.C.S.A. §§ 9712.1(a), 

9712.1(c); 42 Pa.C.S.A. §§ 9718(a), 9718(c).

The Newman Court first concluded that the defendant’s sentence was 

illegal in light of Alleyne and required this Court to vacate and remand for 
J-A26024-14

- 7 -

resentencing. Id. at *10. However, this Court further noted that Alleyne

issues are subject to harmless error analysis but that the Alleyne issue in 

Newman was not harmless. Id. at *11-12. Finally, this Court rejected the 

Commonwealth’s argument that, if the error was not harmless, the 

appropriate remedy would be to remand to the trial court to empanel a 

second sentencing jury. Specifically, in rejecting this argument, the 

Newman Court concluded that Section 9712.1 in its entirety must be struck 

down as unconstitutional in light of Alleyne, concluding that its subsections 

were not severable.4

The Commonwealth’s suggestion that we 

remand for a sentencing jury would require this 

court to manufacture whole cloth a replacement 

enforcement mechanism for Section 9712.1; in other 

words, the Commonwealth is asking us to legislate. 

We recognize that in the prosecution of capital cases 

in Pennsylvania, there is a similar, bifurcated process 

where the jury first determines guilt in the trial 

proceeding (the guilt phase) and then weighs 

aggravating and mitigating factors in the sentencing 

proceeding (the penalty phase). However, this 

mechanism was created by the General Assembly 

and is enshrined in our statutes at 42 Pa.C.S.A. 

§ 9711. We find that it is manifestly the province of 

the General Assembly to determine what new 

____________________________________________

4 The author in this case concurred in the result in Newman, disagreeing 

with the majority that the subsections of Section 9712.1 could not be 

severed and concluding that no special “mechanism” was required to allow a 

jury to find the element of the aggravated offense beyond a reasonable 

doubt. Id. at *17 (Mundy, J., concurring). The author continues to believe 

Newman was wrongly decided on that point; however, it is binding on this 

Court and must be applied in a principled manner in all future cases unless 

reversed by our Supreme Court.
J-A26024-14

- 8 -

procedures must be created in order to impose 

mandatory minimum sentences in Pennsylvania 

following Alleyne. We cannot do so.

Id. at *14.5

We are also mindful of this Court’s recent decision in Commonwealth 

v. Valentine, --- A.3d ---, 2014 WL 4942256 (Pa. Super. 2014). In 

Valentine, the Commonwealth sought to have a mandatory minimum 

sentence imposed against the defendant. The trial court allowed the 

Commonwealth to amend the information to include the necessary additional 

factual elements required by Alleyne to be found by the jury beyond a 

reasonable doubt.6 Id. at *1. The two questions were submitted to the 

jury, and it found the additional elements beyond a reasonable doubt. Id. 

____________________________________________

5 We note the Commonwealth has filed a petition for allowance of appeal 

with our Supreme Court in Newman, docketed at 646 MAL 2014. As of the 

date of this decision, it is still pending.

6

In Valentine, the two questions submitted to the jury were as follows.

Did the Defendant Jose R. Valentine, visibly 

possess a firearm, whether or not the firearm was 

loaded or functional, that placed [the victim] in 

reasonable fear of serious bodily injury during his 

commission of the above-described robbery offense?

Did the Defendant Jose R. Valentine, in whole 

or in part, commit the above-described robbery 

offense at or near a Septa bus stop, or in the 

immediate vicinity of a Septa bus stop?

Valentine, supra at *1 (citation omitted); see also generally 42 Pa.C.S.A. 

§§ 9712, 9713.
J-A26024-14

- 9 -

As a result, the trial court imposed the appropriate mandatory minimum 

sentences pursuant to the appropriate statutes. Id.

Although the trial court seemingly followed Alleyne’s requirements, 

the Valentine Court held the trial court was not permitted to allow the jury 

to resolve the mandatory minimum questions absent legislative action, in 

accordance with Newman.

Here, the trial court permitted the jury, on the 

verdict slip, to determine beyond a reasonable doubt 

whether Appellant possessed a firearm that placed 

the victim in fear of immediate serious bodily injury 

in the course of committing a theft for purposes of 

the mandatory minimum sentencing provisions of 42 

Pa.C.S.A. § 9712(a), and whether the crime occurred 

in whole or in part at or near public transportation, 

for purposes of the mandatory minimum sentencing 

provisions of 42 Pa.C.S.A. § 9713(a). The jury 

responded “yes” to both questions. In presenting 

those questions to the jury, however, we conclude, 

in accordance with Newman, that the trial court 

performed an impermissible legislative function by 

creating a new procedure in an effort to impose the 

mandatory minimum sentences in compliance with 

Alleyne.

The trial court erroneously presupposed that

only Subsections (c) of both 9712 and 9713 (which 

permit a trial judge to enhance the sentence based 

on a preponderance of the evidence standard) were 

unconstitutional under Alleyne, and that 

Subsections (a) of 9712 and 9713 survived 

constitutional muster. By asking the jury to 

determine whether the factual prerequisites set forth 

in § 9712(a) and § 9713(a) had been met, the trial 

court effectively determined that the unconstitutional 

provisions of § 9712(c) and § 9713(c) were 

severable. Our decision in Newman however holds 

that the unconstitutional provisions of § 9712(c) and 

§ 9713(c) are not severable but “essentially and 
J-A26024-14

- 10 -

inseparably connected” and that the statutes are 

therefore unconstitutional as a whole. Id. at 13–14. 

(“If Subsection (a) is the predicate arm ... then 

Subsection (c) is the enforcement arm. Without 

Subsection (c), there is no mechanism in place to 

determine whether the predicate of Subsection (a) 

has been met.”).

Moreover, Newman makes clear that “it is 

manifestly the province of the General Assembly to 

determine what new procedures must be created in 

order to impose mandatory minimum sentences in 

Pennsylvania following Alleyne.” Newman at 14. 

Therefore, the trial court lacked the authority to 

allow the jury to determine the factual predicates of 

§§ 9712 and 9713. See Newman at 14–15 

(recognizing that several trial courts of this 

Commonwealth have found Section 9712.1 as a 

whole to be no longer workable without legislative 

guidance).

Id. at *8. As a result, this Court vacated Valentine’s judgment of sentence 

and remanded for resentencing, without the applicable mandatory minimum 

sentences. Id. at *9.

As noted above, 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.

We recognize that this specific case is unique insofar that the 

additional fact triggering the mandatory sentence is also contained as an 

element within the subsection of the IDSI statute under which Appellant was 
J-A26024-14

- 11 -

convicted. Compare 42 Pa.C.S.A. § 9718(a)(1) (stating, “[a] person 

convicted of the following offenses when the victim is less than 16 years 

of age shall be sentenced to a mandatory term of imprisonment[]”), with

18 Pa.C.S.A. § 3123(a)(7) (stating that a person is guilty of IDSI if he or she 

engages in “deviate sexual intercourse” with a complainant “who is less 

than 16 years of age and the person is four or more years older than the 

complainant and the complainant and person are not married to each 

other[]”) (emphases added). Therefore, in order to convict Appellant of 

IDSI, the Commonwealth was already required to prove beyond a 

reasonable doubt that the victim was less than 16 years old. 

However, we are not concerned with Appellant’s conviction in this 

appeal, only the imposition of the mandatory minimum sentence. In 

Commonwealth v. Matteson, 96 A.3d 1064 (Pa. Super. 2014), the 

defendant was convicted of aggravated indecent assault of a child, which 

includes as an element of the offense that the victim is less than 13 years of 

age. See 18 Pa.C.S.A. § 3125(b). Matteson was sentenced to a ten-year 

mandatory minimum under Section 9718(a)(2), which requires the 

imposition of said minimum sentence for certain “offenses when the victim is 

less than 13 years of age[.]” 42 Pa.C.S.A. § 9718(a)(2). This Court 

concluded that the trial court did not err under Alleyne in imposing the 

mandatory minimum sentence.

Here, Matteson was charged with aggravated 

indecent assault of a child, which requires, inter alia,
J-A26024-14

- 12 -

that the victim is less than 13 years of age. See 18 

Pa.C.S.A. § 3125. The victim testified that she was 

11 years old at the time of the incident. N.T., 

10/28/13, at 1. The jury received an instruction that 

it was required to find that the victim was less than 

13 years of age. Trial Court Opinion, 3/4/14, at 4. 

Therefore, by finding Matteson guilty of aggravated 

indecent assault of a child beyond a reasonable 

doubt, the jury specifically found the element 

required to impose the mandatory minimum 

sentence. See [Commonwealth v.] Watley, 81 

A.3d [108,] 121 [(Pa. Super. 2013) (en banc)] 

(concluding that the appellant’s mandatory minimum 

sentence under section 9712.1 was not illegal under 

Alleyne because the jury, by virtue of its verdict of 

guilty on the possession of firearms charges, 

rendered a specific finding as to whether the 

appellant possessed the handguns)[, appeal denied, 

95 A.3d 277]. Thus, the requirements of Alleyne

have been met, and Matteson’s claim is without 

merit.

In his second claim, Matteson contends that 

the mandatory minimum provisions of 42 Pa.C.S.A. 

§ 9718 are unconstitutional. Brief for Appellant at 

9–10.

As noted above, the language that increases a 

defendant’s sentence based on a preponderance of 

the evidence standard in section 9718 has been 

found unconstitutional. See Watley, 81 A.3d at 

117. However, since the jury found that the 

Commonwealth proved every element of aggravated 

indecent assault of a child beyond a reasonable 

doubt, including a victim under the age of 13, the 

trial court properly imposed the mandatory minimum 

sentence.

Id. at 1066-1067.

In Valentine, this Court noted the tension between Newman, 

Watley, and Matteson. See Valentine, supra at *9 n.4. However, the 
J-A26024-14

- 13 -

Valentine Court concluded that Newman controlled based on the 

conclusion in Newman that the subsections of the mandatory minimum 

statutes in Pennsylvania cannot be severed. Id. Based on the above 

passage, it appears that the Matteson Court concluded that Section 

9718(a)(2) could still be constitutionally applied since the Commonwealth 

“proved every element of aggravated indecent assault of a child beyond a 

reasonable doubt, including a victim under the age of 13[.]” Matteson, 

supra at 1067. However, the Matteson Court could not reach that 

conclusion, unless it first concluded implicitly that the various subsections of 

Section 9718 were severable. Pursuant to this Court’s decision in Newman, 

we conclude this is not correct. In our view, Newman abrogated this 

Court’s decision in Matteson.

7

Likewise, in this case, although the jury was required to find that the 

victim was less than 16 years of age in order to convict Appellant, we cannot 

ignore the binding precedent from an en banc decision of this Court. See 

Commonwealth v. Bucknor, 657 A.2d 1005, 1007 n.1 (Pa. Super. 1995) 

(stating, “as a three judge panel[,] we are bound by the rulings of a court en 

banc[]”), appeal denied, 666 A.2d 1050 (Pa. 1995). Newman stands for 

the proposition that mandatory minimum sentence statutes in Pennsylvania 

of this format are void in their entirety. Newman, supra; Valentine, 

____________________________________________

7 We note that Matteson was filed on July 18, 2014, and Newman was 

filed on August 20, 2014.
J-A26024-14

- 14 -

supra. As Section 9718 is indistinguishable from the statutes struck down 

in Newman and Valentine, we are constrained to conclude that Section 

9718 is also facially void. As a result, we conclude the trial court erred in 

imposing the ten-year mandatory minimum.

Based on the foregoing, we are compelled to conclude that the trial 

court imposed an illegal sentence when it imposed the mandatory minimum 

sentence in this case. Accordingly, we vacate the trial court’s October 1, 

2013 judgment of sentence, and the case is remanded for resentencing, 

without the application of the Section 9718 mandatory minimum, consistent 

with this opinion.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judge Jenkins joins the opinion.

Judge Bowes files a concurring opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/2014