J-A22042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANGEL L. MARTINEZ

Appellant No. 1994 MDA 2015

Appeal from the Judgment of Sentence March 27, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001838-2013;

CP-67-CR-0001839-2013; CP-67-CR-0002199-2012

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 14, 2016

Appellant, Angel L. Martinez, appeals nunc pro tunc from the judgment 

of sentence entered in the York County Court of Common Pleas, following his 

jury trial convictions of three counts each of unlawful contact with a minor 

and sexual assault, two counts each of aggravated indecent assault of a 

child, indecent assault of a child less than 13, and incest, and one count 

each of rape of a child, rape by forcible compulsion, involuntary deviate 

sexual intercourse (“IDSI”) with a child, corruption of a minor, terroristic 

threats, and indecent assault without consent.1 We affirm the convictions 

but vacate the judgment of sentence and remand for re-sentencing. 

____________________________________________

1 18 Pa.C.S.A. §§ 6318(a)(1); 3124.1; 3125(b); 3126(a)(7); 4302; 3121(c); 

3121(a)(1); 3123(b); 6301(a)(1); 2706(a)(1); and 3126(a)(1), respectively. 
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The relevant facts and procedural history of this case can be briefly 

summarized as follows. The Commonwealth charged Appellant with 

numerous offenses in three separate actions, which the court consolidated, 

arising from his sexual abuse of his three minor daughters. On December 

12, 2013, a jury convicted Appellant of rape of a child, rape by forcible 

compulsion, IDSI with a child, aggravated indecent assault of a child, incest, 

sexual assault, and related offenses. On March 27, 2014, the court 

sentenced Appellant to an aggregate term of 811⁄2 to 163 years’ 

imprisonment, which included some mandatory minimum terms pursuant to 

42 Pa.C.S.A. § 9718. Appellant timely filed a post-sentence motion on April 

7, 2014. In his post-sentence motion, Appellant requested credit for time 

served, challenged the weight of the evidence, and objected to the 

imposition of mandatory minimum sentences in light of Alleyne v. United 

States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). On June 9, 

2014, the court granted Appellant’s motion in part only to credit Appellant 

for time served. 

Appellant filed a timely notice of appeal on July 3, 2014. On March 10, 

2015, this Court dismissed the appeal for counsel’s failure to file a brief. On 

August 12, 2015, Appellant filed a motion for a new trial, which the PCRA 

court treated as Appellant’s first PCRA petition. The PCRA court reinstated 

Appellant’s direct appeal rights on October 26, 2015. Appellant filed a timely 

notice of appeal nunc pro tunc on November 12, 2015. On November 24, 
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2015, the court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b); and Appellant 

timely complied on December 21, 2015. 

Appellant raises two issues for our review:

WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF 

THE EVIDENCE TO THE POINT THAT THE VERDICT 

SHOCKS ONE’S SENSE OF JUSTICE?

WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS 

DISCRETION IN DENYING [APPELLANT’S] MOTION FOR 

POST-SENTENCE RELIEF IN WHICH [APPELLANT] RAISED 

HIS OBJECTION TO THE IMPOSITION OF THE MANDATORY 

SENTENCES IMPOSED BY THE TRIAL COURT AT THE TIME 

OF [APPELLANT’S] SENTENCING WHICH [APPELLANT] 

BELIEVES [IS] IN VIOLATION OF ALLEYNE?

(Appellant’s Brief at 4). 

In his first issue, Appellant argues his three daughters’ testimony 

indicated none of the daughters recalled when the sexual assaults occurred 

and details about the assaults. Appellant submits his daughters said they 

had not discussed the sexual assaults with each other. Appellant asserts his 

daughters’ descriptions of the assaults were general and identical, which 

suggests his daughters had an ulterior motive to allege Appellant committed 

the charged offenses. Appellant claims his brother also testified that he did 

not see or hear any inappropriate behavior when Appellant’s daughters 

visited during the 31⁄2 years Appellant and his brother lived together. 

Appellant maintains the trial court abused its discretion when it denied relief 
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on Appellant’s challenge to the weight of the evidence. Appellant concludes 

this Court should reverse and discharge Appellant. We disagree. 

Our standard of review for a challenge to the weight of the evidence is 

as follows:

The weight of the evidence is exclusively for the finder of 

fact who is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses. An 

appellate court cannot substitute its judgment for that of 

the finder of fact. Thus, we may only reverse the lower 

court’s verdict if it is so contrary to the evidence as to 

shock one’s sense of justice. Moreover, where the trial 

court has ruled on the weight claim below, an appellate 

court’s role is not to consider the underlying question of 

whether the verdict is against the weight of the evidence. 

Rather, appellate review is limited to whether the trial 

court palpably abused its discretion in ruling on the weight 

claim. 

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) 

(internal citations omitted). “[C]redibility determinations are made by the 

fact finder and...challenges thereto go to the weight, and not the sufficiency, 

of the evidence.” Commonwealth v. Gaskins, 692 A.2d 224, 227 

(Pa.Super. 1997). See also Commonwealth v. Griffin, 65 A.3d 932 

(Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (stating 

defendant’s claim he was wrongly identified as perpetrator of crimes based 

on “unbelievable identification testimony” went to witness’ credibility and 

challenged weight, not sufficiency, of evidence). The remedy for a challenge 

to the weight of the evidence is a new trial. See, e.g., Commonwealth v. 
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Smith, 853 A.2d 1020 (Pa.Super. 2004) (explaining remedy for challenges 

to sufficiency of evidence is judgment of acquittal; remedy for challenges to 

weight of evidence is new trial). 

Instantly, the trial court reasoned as follows regarding Appellant’s 

weight challenge:

The trial judge determined that the verdict was supported 

by the evidence by denying [Appellant]’s post-sentence 

motion on June 9, 2014. We see no error in this 

determination. The jury in these three cases heard from 

the three victims, Detective Kyle Hower, and [Appellant]’s 

witness, his brother. The jury being the fact-finder was 

“free to believe all, part, or none of the evidence to 

determine the credibility of the witnesses.” After hearing 

all the testimony and weighing the evidence and 

witnesses[’] credibility, the jury found [Appellant] guilty on 

all charges. We do not find this verdict shocked the 

conscience and find it was in-fact supported by the 

evidence. The court therefore disagrees that the verdict 

was against the weight of the evidence. 

(Trial Court Opinion, filed February 5, 2016, at 4) (internal footnote 

omitted). The record supports the trial court’s reasoning. Thus, we see no 

reason to disturb the court’s decision to deny relief on Appellant’s challenge 

to the weight of the evidence. See Champney, supra. 

In his second issue, Appellant argues 42 Pa.C.S.A. § 9718 is 

unconstitutional pursuant to Alleyne and its Pennsylvania progeny. 

Appellant maintains his mandatory minimum sentences under Section 9718 

are illegal. Appellant concludes this Court should vacate the judgment of 

sentence and remand for re-sentencing. We agree. 

In Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 
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L.Ed.2d 314 (2013), the United States Supreme Court 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. Alleyne, supra. The Pennsylvania Supreme Court 

recently addressed the constitutionality of Section 9718 in light of Alleyne

in Commonwealth v. Wolfe, ___ Pa. ___, 140 A.3d 651 (June 20, 2016).2 

Wolfe observed “Section 9718 does plainly and explicitly require judicial 

fact-finding in its subsection (c). Moreover, since subsection (c) is integral 

to the statute, Section 9718(a) does not stand alone.” Wolfe, supra at 

___, 140 A.3d at 660-61 (internal citations omitted). The Court noted 

Section 9718(c) still required the sentencing court to determine a victim’s 

age at sentencing to impose sentences for offenses under Section 9718(a), 

even though the fact-finder might have already decided the victim’s age 

when it reached a verdict. Id. at ___, 140 A.3d at 661. Relying on 

____________________________________________

2 At the time of Appellant’s sentencing, Section 9718 established mandatory 

minimum terms for offenses committed against minors less than 16 years of 

age. For example, Section 9718 in relevant part required several mandatory 

minimum sentences, including: 10 years’ imprisonment for rape; 10 years’ 

imprisonment for IDSI; and 5 years’ imprisonment for aggravated indecent 

assault. 42 Pa.C.S.A. § 9718(a)(1). Section 9718 also established relevant 

mandatory minimum sentences without express reference to the victim’s age 

for several offenses, including: 15 years’ imprisonment for rape of a child; 5 

years’ imprisonment for aggravated indecent assault of a child less than 13 

years old; and 10 years’ imprisonment for aggravated indecent assault of a 

child. 42 Pa.C.S.A. § 9718(a)(3). Section 9718(c) stated provisions of 

Section 9718 shall not be an element of the crime, and the court shall 

determine their applicability by a preponderance of the evidence at 

sentencing. 42 Pa.C.S.A. § 9718(c). 
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Alleyne, Wolfe held that Section 9718 could no longer pass constitutional 

muster as it created a “distinct and aggravated crime” because the “statute’s 

directive for judicial fact-finding attaches to that aggravated crime 

notwithstanding a jury verdict; and that sentencing judges are not free to 

disregard such explicit legislative mandates by substituting their own 

procedures.” Id. (quoting Alleyne, supra). Wolfe further held the nonoffending provisions of Section 9718 were not severable, and the statute 

was unconstitutional and void in its entirety. Id. at ___, 140 A.3d at 661-

63. 

Instantly, the trial court sentenced Appellant to mandatory minimum 

terms of incarceration for several of his convictions, pursuant to Section 

9718. Under Wolfe, Appellant is entitled to a remand for re-sentencing 

without application of any unlawful mandatory minimum sentences. 

Accordingly, we affirm Appellant’s convictions, but we vacate the judgment 

of sentence in its entirety and remand for re-sentencing without imposition 

of mandatory minimum terms. See Commonwealth v. Bartrug, 732 A.2d 

1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999) 

(holding sentencing error in multi-count case normally requires appellate 

court to vacate entire judgment of sentence so trial court can restructure its 

sentencing plan on remand). 

Judgment of sentence vacated; case remanded for re-sentencing. 

Jurisdiction is relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2016