J-S21026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWARD TERANTINO

Appellant No. 2311 EDA 2014

Appeal from the Judgment of Sentence May 30, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0001848-2013

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED APRIL 14, 2015

Appellant Edward Terantino appeals from the judgment of sentence 

entered in the Monroe County Court of Common Pleas following his jury trial 

convictions for involuntary deviate sexual intercourse, persons less than 16 

years of age, statutory sexual assault, and aggravated indecent assault, 

persons less than 16 years of age.1 We affirm Appellant’s convictions, but 

vacate his judgment of sentence and remand for resentencing.

The relevant facts and procedural history of this appeal are as follows. 

In June 1998, then forty-six-year-old Appellant sexually assaulted his then 

fourteen-year-old step-daughter (“Victim”). Police became aware of this 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S §§ 3123(a)(7), 3122.1, 3125(8), respectively.
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assault when they arrested Appellant for kidnapping Victim in September 

2013. On March 13, 2014, the court conducted a jury trial for the 1998 

incident.

At trial, Carol Haupt, the owner of Forensic Counseling Associates, 

testified as an expert witness in the field of victim responses to sexual 

abuse. Before Haupt testified, Appellant objected to Haupt’s qualifications to 

testify as an expert in this field. The Commonwealth and Appellant 

questioned Haupt as to her qualifications outside of the presence of the jury. 

The court accepted Haupt as an expert in the field of victim responses to 

sexual abuse “[b]ased on the witness’s testimony and [the court’s] review of 

her curriculum vitae[.]” N.T., 3/13/14, at 46. 

Haupt, who specializes in treating perpetrators and victims of domestic 

violence and sexual assault, testified that: “Most victims don’t report for a 

very long time if ever” due to “shame, fear, embarrassment, thinking they 

may get in trouble themselves, not knowing who to tell, being afraid that 

they won’t be believed. The list goes on and on. It’s a little different for 

every victim as to their reason for not disclosing.” N.T., 3/13/14, at 49-50. 

Haupt did not testify specifically about Victim because she never met Victim. 

Appellant made no objections to Haupt’s testimony.

On March 13, 2014, the jury convicted Appellant of the 

aforementioned charges. On May 30, 2014, the court sentenced Appellant 

to 5-10 years’ incarceration for involuntary deviate sexual intercourse, 
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persons less than 16 years of age,2 2-4 years of concurrent incarceration for 

aggravated indecent assault, persons less than 16 years of age, and a 

consecutive sentence of 4-8 years’ incarceration for kidnapping, resulting in 

an aggregate sentence of 9-18 years’ incarceration.3

On June 9, 2014, Appellant filed a post-sentence motion which the 

court denied on July 1, 2014. On July 30, 2014, Appellant timely filed a 

notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 

1925.

Appellant raises the following issue for our review:

WHETHER THE TRIAL COURT ERRED BY ALLOWING 

EXPERT TESTIMONY CONCERNING “VICTIM RESPONSES 

TO SEXUAL ABUSE” TO BOLSTER [THE] CREDIBILITY OF 

THE WITNESS[?]

Appellant’s Brief, p. 5.

Appellant argues the court erred by allowing Haupt to testify as an 

expert in the field of victim responses to sexual abuse. Appellant complains 

the Commonwealth presented Haupt’s testimony for the sole purpose of 

bolstering Victim’s testimony. He claims the issue of victim response to 

sexual abuse is a matter of common knowledge, not distinctly related to a 

science, skill, or occupation beyond the knowledge or experience of the 

____________________________________________

2 The court sentenced Appellant to the mandatory minimum for his offense, 

pursuant to 42 Pa.C.S. § 9718.

3 Appellant’s statutory sexual assault charge merged for sentencing 

purposes.
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average layman; thus, Haupt’s testimony was inadmissible, and he is 

entitled to a new trial without this prejudicial evidence. We disagree.

Initially, Appellant waived this claim by failing to object to the 

substance of Haupt’s testimony during trial. See Commonwealth v. 

Hairston, 84 A.3d 657, 667 (Pa.2014) cert. denied sub nom. Hairston v. 

Pennsylvania, ___ U.S. ___, 135 S.Ct. 164, 190 L. Ed. 2d 118 (2014) (lack 

of timely objection waived issue for appellate review). Although Appellant 

objected to Haupt’s qualifications as an expert, he did not object to Haupt’s 

testimony on the grounds that it enhanced Victim’s credibility. 

Even if Appellant had preserved this issue for appeal, it warrants no 

relief. 42 Pa.C.S. § 5920 provides the line of demarcation between 

admissible and inadmissible expert testimony: an expert “may testify to 

facts and opinions regarding specific types of victim responses and victim 

behaviors,” but shall not provide “opinion[s] regarding the credibility of any 

other witness, including the victim.” 42 Pa.C.S. § 5920(b)(2), (3).

Here, Haupt testified as to possible reasons victims might not disclose 

prior sexual abuse but did not opine upon the credibility of any witness at 

Appellant’s trial. Accordingly, she testified within the parameters of the 

statute. 

We now consider the legality of Appellant’s mandatory minimum 

sentence under 42 Pa.C.S. § 9718. Although Appellant did not raise any 

issue related to the legality of his sentence, we note that questions 
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regarding the legality of a sentence “are not waivable and may be raised sua 

sponte by this Court.” Commonwealth v. Watley, 81 A.3d 108, 118 

(Pa.Super.2013) (en banc), appeal denied, 95 A.3d 277 (Pa.2014). Further, 

we note that issues regarding the Supreme Court of the United States’ 

decision in Alleyne v. United States, __ U.S. __, 133 S.Ct 2151, 186 L.Ed 

2d 341 (2013), directly implicate the legality of the sentence. 

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super.2014).

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

is as follows:

A challenge to the legality of a sentence...may be 

entertained as long as the reviewing court has jurisdiction. 

It is also well-established that if no statutory authorization 

exists for a particular sentence, that sentence is illegal and 

subject to correction. An illegal sentence must be vacated. 

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.

Wolfe, 106 A.3d at 801-02 (citations omitted).

In this case, Appellant was sentenced under the following statute:

§ 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. § 2702(a)(1) and (4) (relating to aggravated 

assault)--not less than two years.
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18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating 

to rape)--not less than ten years.

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

sexual intercourse)--not less than ten years.

18 Pa.C.S. § 3125(a)(1) through (6) (relating to 

aggravated indecent assault)--not less than five 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 

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. § 9718.

In Alleyne, the Supreme Court of the United States held that the Due 

Process Clause of the Constitution of the United States requires each factor 

that increases a mandatory minimum sentence to be submitted to a jury and 

found beyond a reasonable doubt. Alleyne, supra at 2163. Based upon 

Alleyne, this Court stated in dicta in Watley that sections 7508 and 9712.1 

of the Sentencing Code are unconstitutional insofar as they permit a judge 

to automatically increase a defendant’s sentence based on a preponderance 

of the evidence standard for factors other than a prior conviction. Watley, 

supra at 117 n. 4. 
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In Commonwealth v. Newman, following our dicta in Watley, we 

held that the preponderance of the evidence standard in section 9712.1(c) is 

unconstitutional under Alleyne. Newman, 99 A.3d 86 (Pa.Super.2014) (en 

banc). We then addressed whether it was possible to continue enforcing the 

remaining subsections of section 9712.1 after severing subsection (c). We 

held that section 9712.1, as a whole, was no longer workable, because 

subsection (c) was “essentially and inseparably connected” with the 

mandatory minimum sentencing provision in subsection (a). Id. at 101. We 

cited several trial court opinions on this subject, most notably the following 

analysis by the Montgomery County Court of Common Pleas:

While the Commonwealth clearly is correct that 

unconstitutional provisions of a statute may be severed in 

order to effectuate the legislature’s intent in enacting that 

statute, the undersigned believes that this simply is not 

possible in the instant situation, where the constitutional 

and unconstitutional provisions of the mandatory minimum 

statutes are inextricably interwoven. In order to effectuate 

the legislature’s intent for the imposition of mandatory 

minimum sentences, the Commonwealth would have us 

ignore the legislature’s clear intent: that the factors 

triggering such sentences be found by a judge and not a 

jury; that the defendant need not be informed of the 

applicability of the mandatory sentence prior to 

sentencing; and that the applicable standard be one of 

preponderance of the evidence. The undersigned believes 

it is for the legislature, and not this court, to make such 

determinations. Further, and crucially, rather than asking 

this court simply to ‘sever’ unconstitutional provisions 

within the statutes, the Commonwealth is essentially 

asking this court to rewrite them, by imposing different 

burdens of proof and notification than the legislature 

imposed. 
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Id. at 103 (citing Commonwealth v. Brockington, et al. (CCP 

Montgomery Cty., March 21, 2014)). Accordingly, in Newman, we vacated 

the defendant’s judgment of sentence and remanded for resentencing 

“without consideration of any mandatory minimum sentence provided by 

section 9712.1.” Id. at 103. 

More recently, this Court specifically analyzed 42 Pa.C.S. § 9718 in

Wolfe. We recognized that section 9718 contained the same format as 

section 9712.1, the statute struck down as unconstitutional in Newman. 

Wolfe, 106 A.3d at 805. We therefore determined that section 9718 was 

unconstitutional, vacated the judgment of sentence, and remanded the case 

for resentencing without application of the section 9718 mandatory 

minimum. Id. at 806. 

Pursuant to Wolfe, because the trial court sentenced Appellant under 

the unconstitutional provision of section 9718, we must vacate Appellant’s 

judgment of sentence and remand for resentencing without application of 

section 9718.

Convictions affirmed. Judgment of sentence vacated; case remanded 

for resentencing. Jurisdiction is relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015