J-S58028-15

* Retired Senior Judge assigned to the Superior Court

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN CATAQUET,

Appellant No. 2029 MDA 2014

Appeal from the Judgment of Sentence of February 22, 2010

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0001318-2008

BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 03, 2016

Appellant, John Cataquet, appeals from the judgment of sentence 

entered on February 22, 2010. After careful consideration, we are 

constrained to vacate Appellant’s judgment of sentence and remand for 

resentencing.

The trial court ably explained the underlying facts of this case:

[The victim, J.R., was born in April 1995 and] was [14] 

years old at the time of trial[. In 2001 or 2002, when J.R. 

was six years old,] Appellant began sexually abusing [her. 

N.T. Trial, 9/15/09, at 70.] Appellant knew J.R. through her 

aunt, to whom Appellant was married. Appellant would 

frequently babysit J.R. and her two younger brothers at 

[Appellant’s] house. . . . J.R. detailed the attic where 

Appellant would take her and her siblings while babysitting 

and where the [abuse] occurred. J.R. testified that . . . 

Appellant would take her into a small room in the attic, 

have her [lie] down on blankets[,] and touch her with [his] 

hands, mouth, and penis, and do what she described as 

“humping” – rub[bing] his body on hers back and forth with 

their clothes on. She testified that he digitally penetrated 
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her vagina [while] her pants [were] pulled down, kissed 

her, touched her vagina with his mouth, forced her to 

perform oral sex on him, and rubbed his penis on her 

vagina. . . . [J.R. testified that Appellant abused her in this 

manner “just about every[] day for about a year” – and that 

she was seven years old the “last [time she was] at that 

house that had the attic.” N.T. Trial, 9/15/09, at 81-83. 

Therefore, according to J.R., the last time Appellant could 

have abused her was in April 2003.] 

J.R. kept this [abuse] secret for years until March[] 2008, 

when she decided to come forward and report the abuse to 

the police. On March 24, 2008, J.R. was examined by Nurse 

Practitioner Sandra Federo at the Children’s Advocacy 

Center, who found that although there was no physical 

evidence of sexual assault, such a finding was consistent 

with the timing of the disclosure, as well as the type of 

abuse disclosed by J.R.

On April 9, 2008, as part of his investigation into J.R.’s 

complaint, Detective Timothy Mayo of the Scranton Police 

Department contacted Appellant via telephone and 

requested an interview at the police station. On April 10, 

2008, Appellant was interviewed by Detective Mayo at the 

Scranton Police Department[. Appellant] was advised of his 

[Miranda1] rights[,] and [Appellant] then gave a written 

statement denying all of J.R.’s allegations. . . . 

The following day[,] . . . Appellant was [] questioned by 

Detective Lieutenant Joseph Lafferty as part of the 

investigation. Appellant admitted to and then signed a 

written statement [declaring] that he digitally penetrated 

J.R. twice, but [denied] ever exposing his penis to the 

victim, denied touching his penis to her vagina, den[ied] 

using his tongue on J.R.’s vagina, and denied ever forcing 

J.R. to perform oral sex on him. In response to the 

detective questioning what else happened with J.R., 

Appellant stated[,] “[i]t looked like she kind of liked it. 

Every time she came to the house, it felt like she wanted to 

____________________________________________

1 Miranda v. Arizona, 384 U.S. 436 (1966).
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do it.” [Appellant] then agreed to take the detectives to the 

place where he violated J.R. He took them to a house on 

Albright Avenue. At that point[,] the detectives took 

Appellant back to police headquarters and placed him under 

physical arrest and began booking procedures. 

Trial Court Opinion, 10/15/15, at 1-4 (some internal citations and 

capitalization omitted).

The Commonwealth later charged Appellant with two counts of 

aggravated indecent assault of a person less than 13 years of age, two 

counts of involuntary deviate sexual intercourse (hereinafter “IDSI”) with a 

person less than 13 years of age, and one count each of indecent assault of 

a person less than 13 years of age, endangering the welfare of children, 

corruption of minors, and unlawful contact with a minor.2 Commonwealth’s 

Information, 6/20/08, at 1-3.

Appellant proceeded to a jury trial where the above evidence was 

presented. Moreover, during trial, J.R.’s mother testified she “le[ft J.R.] in 

the care of [Appellant]” when J.R. was seven years old. N.T. Trial, 9/16/09, 

at 95. 

On September 21, 2009, the jury found Appellant guilty of all charges. 

Moreover, on the verdict slip, the jury specifically determined that 

____________________________________________

2 18 Pa.C.S.A. §§ 3125(a)(7), 3123(a)(6) (effective from 1995 until 

February 6, 2003), 3126(a)(7), 4304(a), 6301(a)(1), and 6318(a)(1), 

respectively.
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Appellant’s two aggravated indecent assaults on J.R. occurred “between 

January [] 2002 [and] January 2003.” Verdict Slip, 9/22/09, at 1.

On February 22, 2010, the trial court sentenced Appellant to serve an 

aggregate term of 204 to 408 months in prison, followed by 16 years of 

special probation. Specifically, the trial court sentenced Appellant to serve: 

a mandatory minimum term of 36 to 72 months in prison (pursuant to 42 

Pa.C.S.A. § 9718), plus two years of special probation, on both counts of 

aggravated indecent assault of a person less than 13 years of age (18 

Pa.C.S.A. § 3125(a)(7)); a mandatory minimum term of 66 to 132 months 

in prison (pursuant to 42 Pa.C.S.A. § 9718), plus two years of special 

probation, on both counts of IDSI upon a person less than 13 years of age 

(18 Pa.C.S.A. § 3123(a)(6));3, 4and, two years of probation each on the 

____________________________________________

3 During sentencing, the trial court apparently believed that Appellant was 

convicted of IDSI upon a person who was less than 16 years of age. See

N.T. Sentencing, 2/22/10, at 8. This belief was, however, incorrect. 

Indeed, at trial, the trial court instructed the jury as follows:

The next count is involuntary deviate sexual intercourse 

with a child. A person commits involuntary deviate sexual 

intercourse with a child when the person engages in deviate 

sexual intercourse with a child who is less than 13 years of 

age. 

. . .

[I]t’s immaterial whether the child consented to the contact. 

The consent of a child is no defense.

It is also no defense that the defendant did not know the 

age of the child or the child lied [about] her age or the 

(Footnote Continued Next Page)
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(Footnote Continued) _______________________

defendant honestly believed that the child was 13 or older 

or that the defendant reasonably believed that the child was 

13 or older.

Therefore, in order to find [Appellant] guilty of this offense 

you must find that the following two elements have been 

proven beyond a reasonable doubt:

First, that [Appellant] engaged in deviate sexual intercourse 

with a child, namely, [J.R.].

Second, that the child, [J.R.], was less than 13 years of age 

at the time the offense occurred.

N.T. Trial, 9/21/09, at 116-118.

Appellant did not object to this jury instruction. Therefore, when the jury 

pronounced, in open court, that Appellant was guilty of “Count 3, involuntary 

deviate sexual intercourse with a child” and “Count 4, involuntary deviate 

sexual intercourse with a child,” the jury – in fact – found Appellant guilty of 

IDSI with a person who was “less than 13 years of age.” See 

Commonwealth v. Zlatovich, 269 A.2d 469, 473 (Pa. 1970) (“[t]he only 

act performed by the jury to which any legal significance is attached is the 

[r]endering of the verdict. The verdict as uttered is the sole embodiment of 

the jury’s act”) (internal quotations and corrections omitted). We 

acknowledge that the Commonwealth’s information is fairly ambiguous with 

respect to the IDSI charge – and that it can be read as supporting a charge

of IDSI upon an individual who is “less than 13 years of age” and IDSI upon 

an individual who is “less than 16 years of age.” See 18 Pa.C.S.A. 

§ 3123(a)(6) (effective from 1995 until February 6, 2003); Commonwealth’s 

Information, 6/20/08, at 1-2. Nevertheless, Appellant did not object to the 

ambiguity in the information or to the trial court’s jury instruction. Further, 

since the information supports the charge of IDSI upon an individual who is 

“less than 13 years of age” and since Appellant was, in fact, found guilty of 

IDSI upon an individual who is “less than 13 years of age,” we conclude that 

Appellant was convicted of IDSI upon an individual who is “less than 13 

years of age.” 

4

From 1995 until February 6, 2003, the IDSI statute – 18 Pa.C.S.A. § 3123 

– defined the crime of “deviate sexual intercourse with a complainant . . . 

who is less than 13 years of age,” at 18 Pa.C.S.A. § 3123(a)(6). 18 

(Footnote Continued Next Page)
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charges of indecent assault of a person less than 13 years of age, 

endangering the welfare of children, corruption of minors, and unlawful 

contact with a minor. The trial court ordered each sentencing term to run 

consecutively to one another. 

As noted above, the trial court utilized the mandatory minimum 

sentencing statute found at 42 Pa.C.S.A. § 9718 to sentence Appellant to 

mandatory minimum terms of imprisonment for the following convictions: 

two counts of aggravated indecent assault of a person less than 13 years of 

age (18 Pa.C.S.A. § 3125(a)(7)) and two counts of IDSI with a person less 

than 13 years of age (18 Pa.C.S.A. § 3123(a)(6)). The trial court never 

specified the version of 42 Pa.C.S.A. § 9718 it employed when it sentenced 

Appellant to the particular mandatory minimum terms.

Appellant did not file a notice of appeal from his judgment of sentence.

(Footnote Continued) _______________________

Pa.C.S.A. § 3123(a)(6) (effective from 1995 until February 6, 2003). 

Effective February 7, 2003 until February 13, 2003, the legislature moved 

the definition of the crime of “deviate sexual intercourse with a complainant 

who is less than 13 years of age” to 18 Pa.C.S.A. § 3123(c). 18 Pa.C.S.A. 

§ 3123(c) (effective from February 7, 2003 until February 13, 2003). 

Finally, effective February 14, 2003, the legislature moved the crime of 

“deviate sexual intercourse with a complainant who is less than 13 years of 

age” to its current location at 18 Pa.C.S.A. § 3123(b). See 18 Pa.C.S.A. 

§ 3123(b). Nevertheless, since the iterations of the statute constitute mere 

re-numberings and do not change the substantive nature of the crime, for 

purposes of this memorandum we will cite to the version of the IDSI statute 

that was in effect from 1995 until February 6, 2003 – 18 Pa.C.S.A. 

§ 3123(a)(6).
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On January 9, 2011, Appellant filed a timely, pro se petition under the 

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. See 

Commonwealth v. Cataquet, 100 A.3d 302 (Pa. Super. 2014) 

(unpublished memorandum) at 3. Although the PCRA court dismissed 

Appellant’s PCRA petition without holding a hearing, this Court on appeal 

vacated the PCRA court’s order and concluded that the PCRA court erred 

when it dismissed the petition. In essence, we concluded that Appellant was 

entitled to a hearing to determine whether his trial counsel was ineffective 

for failing to file a direct appeal from the judgment of sentence. Id. at 19-

20.

On remand, the PCRA court concluded that Appellant was entitled to 

relief on his claim that his trial counsel was ineffective for failing to file a 

direct appeal. Therefore, by order entered on November 18, 2014, the PCRA 

court reinstated Appellant’s right to file a direct appeal nunc pro tunc. 

Appellant filed a timely notice of appeal from his judgment of sentence. Now 

on appeal, Appellant raises the following claims:

[1.] Whether the trial court erred in permitting 

Commonwealth experts to testify as to their belief that the 

victim was being truthful in her accusations [against] 

Appellant?

[2.] Whether Appellant was unlawfully sentenced pursuant 

to unconstitutional mandatory minimum sentencing 

provisions?
J-S58028-15

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Appellant’s Brief at 7 (some internal capitalization omitted).5

Appellant first claims that the trial court erred when it “permitt[ed two] 

Commonwealth experts to testify as to their belief that the victim was being 

truthful in her accusations [against] Appellant.” Appellant’s Brief at 7 and 

15. This claim is waived, as Appellant did not object to the alleged 

inappropriate testimony at trial. See N.T. Trial, 9/16/09, at 158-162 and 

181-184; Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa. Super. 

1996) (“[f]ailure to raise a contemporaneous objection to the evidence at 

trial waives that claim on appeal”); Pa.R.A.P. 302(a) (“[i]ssues not raised in 

the lower court are waived and cannot be raised for the first time on 

appeal”); see also Commonwealth v. Baumhammers, 960 A.2d 59, 73 

(Pa. 2008) (holding that, where the appellant was required to lodge a 

contemporaneous objection to the evidence at trial and failed to do so, 

setting forth the issue in a post-sentence motion did not preserve the issue 

on appeal).

For Appellant’s second claim on appeal, he contends that his sentence 

is illegal, as he was sentenced to four mandatory minimum terms of 

imprisonment under 42 Pa.C.S.A. § 9718. Appellant’s Brief at 11. Appellant 

bases his contention on Commonwealth v. Wolfe, 106 A.3d 800 (Pa. 

Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015), where this Court 

____________________________________________

5

For ease of discussion, we have re-ordered Appellant’s claims on appeal.
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held that a version of Section 9718 that was in effect from January 1, 2007 

until August 17, 2014, was unconstitutional in light of Alleyne v. United 

States, ___ U.S. ___, 133 S.Ct. 2151 (2013) and Commonwealth v. 

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).6 

We conclude that Appellant’s sentence is illegal, but not for the reason 

cited by Appellant. Rather, we conclude that the trial court illegally 

sentenced Appellant to two mandatory minimum terms of imprisonment for 

aggravated indecent assault of a person less than 13 years of age (18 

Pa.C.S.A. § 3125(a)(7)), in violation of the prohibition against ex post facto 

laws. We also conclude that Appellant’s two mandatory minimum sentences 

for IDSI are not illegal in light of either Wolfe or Alleyne. Nevertheless, 

since we conclude that Appellant’s two mandatory minimum terms of 

imprisonment for aggravated indecent assault have caused his sentence to 

be illegal, we must vacate these two sentencing terms. Further, since the 

____________________________________________

6 On August 12, 2015, our Supreme Court granted the Commonwealth’s 

petition for allowance of appeal in Wolfe and agreed to consider the 

following claim:

Whether the Superior Court of Pennsylvania’s sua sponte

determination that the ten year mandatory minimum 

sentence for involuntary deviate sexual intercourse (Person 

less than 16 years) imposed pursuant to 42 Pa.C.S.A. 

§ 9718(a)(1) is facially unconstitutional is erroneous as a 

matter of law?

Commonwealth v. Wolfe, 121 A.3d 433 (Pa. 2015) (per curiam order).
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trial court ordered that all of Appellant’s sentences be served consecutively 

to one another, it is likely that our disposition disturbs the trial court’s 

overall sentencing scheme. Therefore, we vacate Appellant’s entire 

judgment of sentence and remand for resentencing. We will explain.

As this Court has held, “[a]pplication of a mandatory minimum 

sentence gives rise to illegal sentence concerns, even where the sentence is 

within the statutory limits.” Commonwealth v. Watley, 81 A.3d 108, 118 

(Pa. Super. 2013) (en banc). “Legality of sentence questions are not 

waivable and may be raised sua sponte by this Court.” 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. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (internal 

corrections omitted).

The mandatory minimum sentencing statute in this case – 42 

Pa.C.S.A. § 9718 – was originally enacted on December 30, 1982, with the 

legislation effective 60 days from the date of enactment. Section 9718 was 

then amended in 1995, 2004, 2006, and 2014. In this case, the trial court 

did not identify the version (or versions) of Section 9718 that it applied 

when it sentenced Appellant. Nevertheless, it is apparent that, when the 

trial court sentenced Appellant to serve the two mandatory minimum terms 

of imprisonment for aggravated indecent assault of a person less than 13 

years of age (18 Pa.C.S.A. § 3125(a)(7)), the trial court employed the 

version of Section 9718 that was in effect from November 30, 2004 until 
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December 31, 2006.7 This conclusion is a result of several factors. First, 

the version of Section 9718 that was in effect from November 30, 2004 until 

December 31, 2006 provides for the penalties that Appellant actually 

received for his aggravated indecent assault convictions. Specifically, the 

version of Section 9718 that was in effect from November 30, 2004 until 

December 31, 2006 provides:

(a) Mandatory sentence.—

. . .

(3) A person convicted of the following offenses shall be 

sentenced to a mandatory term of imprisonment as follows:

18 Pa.C.S. § 3125(a)(7) – not less than two and onehalf years.

42 Pa.C.S.A. § 9718 (effective from November 30, 2004 until December 31, 

2006).

This version of Section 9718 thus corresponds with Appellant’s 

sentences of three to six years’ imprisonment for aggravated indecent 

assault of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)).

Second, when Section 9718 was amended in 2004, the legislature 

specifically declared that 42 Pa.C.S.A. § 9718(a)(3) – which established the 

____________________________________________

7 Appellant has failed to identify the version of Section 9718 under which he 

was sentenced and Appellant has never claimed that the trial court 

committed any error in sentencing him under the particular version of 

Section 9718 that it did. See Appellant’s Brief at 11-15.
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mandatory minimum sentence for aggravated indecent assault of a person 

less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)) – would have 

retroactive effect. In particular, the Act of November 30, 2004, P.L. 1703, 

No. 217, § 6 declares: “[t]he addition of 42 Pa.C.S.A. § 9718(a)(3) shall 

apply to individuals sentenced on or after the effective date of this section.” 

Act of November 30, 2004, P.L. 1703, No. 217, § 6. Therefore, since 

Appellant was sentenced “on or after” November 30, 2004, the legislation 

declared that the trial court must apply Section 9718(a)(3) to Appellant’s 

conviction for aggravated indecent assault of a person less than 13 years of 

age (18 Pa.C.S.A. § 3125(a)(7)). 

Third, under the prior version of 42 Pa.C.S.A. § 9718 – which was in 

effect from 1995 until November 29, 2004 – the statute did not provide a 

mandatory minimum punishment for violation of aggravated indecent assault 

of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)).8 See 42 

Pa.C.S.A. § 9718(a) (effective from 1995 until November 29, 2004) (“A 

person convicted of the following offenses when the victim is less than 13 

years of age shall be sentenced to a mandatory term of imprisonment as 

____________________________________________

8 We note that, at the time Appellant committed the aggravated indecent 

assault upon J.R., aggravated indecent assault upon a complainant who is 

less than 13 years of age was codified at 18 Pa.C.S.A. § 3125(7). See 18 

Pa.C.S.A. § 3125(7) (effective from 1995 until February 6, 2003). However, 

the version of 42 Pa.C.S.A. § 9718 which was in effect from 1995 until 

November 29, 2004 also did not provide a penalty for violation of 18 

Pa.C.S.A. § 3125(7).
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follows: . . . 18 Pa.C.S. 3125(1) through (6) (relating to aggravated 

indecent assault) – not less than two and one-half years”) (emphasis 

added). Therefore, since Appellant received a mandatory minimum 

sentence for violating 18 Pa.C.S.A. § 3125(a)(7), the trial court could not 

have sentenced Appellant under the version of Section 9718 that was in 

effect from 1995 until November 29, 2004. 

Finally, the version of Section 9718 that was in effect at the time of 

sentencing provided far more severe mandatory minimum prison terms for 

aggravated indecent assault than what Appellant received. See 42 

Pa.C.S.A. § 9718(a) (effective from January 1, 2007 until August 17, 2014) 

(providing: “(3) A person convicted of the following offenses shall be

sentenced to a mandatory term of imprisonment as follows: . . . 18 Pa.C.S. 

§ 3125(a)(7) – not less than five years”) (emphasis added). 

As such, with respect to Appellant’s sentences for aggravated indecent 

assault of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)), 

the trial court could only have applied the version of Section 9718 that was 

in effect from November 30, 2004 until December 31, 2006. 

In the case at bar, however, the jury concluded that Appellant 

committed the aggravated indecent assaults upon J.R. “between January 

[] 2002 [and] January 2003.” Verdict Slip, 9/22/09, at 1 (emphasis 

added). Further, as noted above, at the time Appellant committed the 

aggravated indecent assaults upon J.R., Section 9718 did not provide for any 

mandatory minimum sentence for the violation of 18 Pa.C.S.A. § 3125(a)(7). 
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See 42 Pa.C.S.A. § 9718(a) (effective from 1995 until November 29, 2004) 

(“A person convicted of the following offenses when the victim is less than 

13 years of age shall be sentenced to a mandatory term of imprisonment as 

follows: . . . 18 Pa.C.S. 3125(1) through (6) (relating to aggravated 

indecent assault) – not less than two and one-half years”) (emphasis 

added). Because the trial court imposed a mandatory minimum sentence for 

aggravated indecent assault of a person who is less than 13 years of age (18 

Pa.C.S.A. § 3125(a)(7)) that did not exist at the time Appellant committed 

his offenses, Appellant’s mandatory minimum sentences for aggravated 

indecent assault of a person who is less than 13 years old (18 Pa.C.S.A. 

§ 3125(a)(7)) are in violation of the prohibition against ex post facto laws 

and are illegal. Commonwealth v. Rose, ___ A.3d ___, 2015 WL 7283338 

(Pa. 2015) (holding that “a defendant convicted of third-degree murder must 

be sentenced under the sentencing statute in effect at the time the 

defendant committed the ultimately deadly assault upon the victim,” and not 

under the sentencing statute that existed at the time the victim actually 

died, some 14 years later); Alleyne v. United States, ___ U.S. ___, 133 

S.Ct. 2151, 2160-2161 (2013) (“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”). 
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We must therefore vacate Appellant’s sentences for aggravated indecent 

assault of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)). 

With respect to Appellant’s IDSI convictions, J.R. specifically testified: 

that she was six years old when Appellant began molesting her; that 

Appellant abused her “just about every[] day for about a year;” and, that 

she was seven years old the “last [time she was] at that house that had the 

attic.” N.T. Trial, 9/15/09, at 81-83. Since J.R. was born in April 1995, the 

last time Appellant could have committed IDSI upon J.R. was April 2003. 

However, the version of 42 Pa.C.S.A. § 9718 that was in effect from 1995 

until November 29, 2004 and the version of 42 Pa.C.S.A. § 9718 that was in 

effect from November 30, 2004 until December 31, 2006 provide the same 

mandatory minimum punishment for the offense of IDSI. Given this, we 

shall treat the trial court’s sentencing order as imposing the sentencing 

provisions included within the version of Section 9718 that was in effect 

from 1995 until November 29, 2004. In this connection, we note that, not 

only do Appellant’s sentences of five-and-a-half to eleven years’ 

imprisonment for IDSI with a person less than 13 years of age (18 Pa.C.S.A. 

§ 3123(a)(6)) correspond with the version of 42 Pa.C.S.A. § 9718 that was 

in effect from 1995 until November 29, 2004, but the version of 42 Pa.C.S.A. 

§ 9718 that was in effect at the time of sentencing provided far more severe 

mandatory minimum prison terms than what Appellant received. See 42 

Pa.C.S.A. § 9718(a) (effective from January 1, 2007 until August 17, 2014) 

(providing: “[a] person convicted of the following offenses when the victim 
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is under 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”).9 Therefore, with 

respect to Appellant’s two mandatory minimum sentences for IDSI, we 

conclude that the trial court applied the version of 42 Pa.C.S.A. § 9718 that 

was in effect from 1995 until November 29, 2004.

We must now determine whether Appellant’s mandatory minimum 

sentences for IDSI with a person who is less than 13 years of age are illegal

____________________________________________

9 Again, we note that the penalties for IDSI were identical under the version 

of Section 9718 that was in effect from 1995 until November 29, 2004 and 

the version of Section 9718 that was in effect from November 30, 2004 until 

December 31, 2006. Compare 42 Pa.C.S.A. § 9718 (effective from 1995 

until November 29, 2004) (“[a] person convicted of the following offenses 

when the victim is under 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 five years”); 42 

Pa.C.S.A. § 9718 (effective from November 30, 2004 until December 31, 

2006) (same). 

Further, the trial court’s error at sentencing – where the trial court 

concluded that Appellant was convicted of IDSI of a person who was “less 

than 16 years of age” when the jury, in fact, found Appellant guilty of IDSI 

with a person who was “less than 13 years of age” – is harmless in light of 

the fact that both versions of 42 Pa.C.S.A. § 9718 provide a five-year 

mandatory minimum sentence for violating “18 Pa.C.S. § 3123 (relating to 

involuntary deviate sexual intercourse) . . . when the victim is under 16

years of age.” Compare 42 Pa.C.S.A. § 9718 (effective from 1995 until 

November 29, 2004) (“[a] person convicted of the following offenses when 

the victim is under 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 five years”); 42 Pa.C.S.A. § 9718 

(effective from November 30, 2004 until December 31, 2006) (same). 
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in light of Wolfe and Alleyne.

10

 In this case, Appellant was sentenced to 

two mandatory minimum terms of imprisonment for IDSI, under the version 

of Section 9718 that was in effect from 1995 until November 29, 2004 – and 

not under the version of the statute that this Court held unconstitutional in 

Wolfe. Further, the version of Section 9718 that was effective from 1995 

until November 29, 2004 did not contain any provision or subsection that the 

Wolfe Court later held unconstitutional. Therefore, we conclude that Wolfe

does not control this case and that Wolfe does not invalidate the version of 

Section 9718 under which Appellant was sentenced. Hence, Appellant’s 

sentence is not illegal under Wolfe. We also conclude that Appellant’s 

sentence is not illegal in light of Alleyne. We will explain.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States 

Supreme Court held: “[o]ther than the fact of a prior conviction, any fact 

that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable 

doubt.” Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States 

Supreme Court expanded “Apprendi’s basic jury-determination rule to 

mandatory minimum sentences.” Alleyne, ___ U.S. at ___, 133 S.Ct. at 

2167 (Breyer, J., concurring). Specifically, the Alleyne Court held that, 

____________________________________________

10 We need not undertake any Alleyne analysis for Appellant’s aggravated 

indecent assault convictions, as we have found that there is no statutory 

mandatory minimum punishment that applies to those offenses. See supra.
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where an “aggravating fact” increases a mandatory minimum sentence, “the 

fact is an element of a distinct and aggravated crime. [The fact] must, 

therefore, be submitted to the jury and found beyond a reasonable doubt.” 

Alleyne, 133 S.Ct. at 2162-2163. The Alleyne Court explained:

It is indisputable that a fact triggering a mandatory 

minimum alters the prescribed range of sentences to which 

a criminal defendant is exposed. . . . And because the 

legally prescribed range is the penalty affixed to the crime . 

. . it follows that a fact increasing either end of the range 

produces a new penalty and constitutes an ingredient of the 

offense. . . .

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 low-end of a sentencing range heightens the 

loss of 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 

. . . and found beyond a reasonable doubt.
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Alleyne, 113 S.Ct. at 2160-2161 and 2163 (emphasis in original) (internal 

quotations, citations, and parenthetical information omitted).

At the time Alleyne was decided, many of Pennsylvania’s mandatory 

minimum sentencing statutes were written in an identical format. As an 

example of this format, we shall quote the mandatory minimum sentencing 

statute found at 18 Pa.C.S.A. § 7508. In relevant part, 18 Pa.C.S.A. § 7508 

provides:

(a) General rule.--Notwithstanding any other provisions of 

this or any other act to the contrary, the following 

provisions shall apply:

(1) A person who is convicted of [possessing a 

controlled substance with the intent to deliver] where 

the controlled substance is marijuana shall, upon 

conviction, be sentenced to a mandatory minimum term 

of imprisonment and a fine as set forth in this 

subsection:

(i) when the amount of marijuana involved is at least 

two pounds, but less than ten pounds, or at least ten 

live plants but less than 21 live plants; one year in 

prison and a fine of $5,000 or such larger amount as 

is sufficient to exhaust the assets utilized in and the 

proceeds from the illegal activity . . . 

. . .

(b) Proof of sentencing.--Provisions of this section shall 

not be an element of the crime. Notice of the applicability 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 evidence presented at trial, shall afford the 

Commonwealth and the defendant an opportunity to 
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present necessary additional evidence and shall determine, 

by a preponderance of the evidence, if this section is 

applicable.

(c) Mandatory sentencing.--There shall be no authority 

in any court to impose on an offender to which this section 

is applicable a lesser sentence than provided for herein or to 

place the offender on probation, parole or work release or to 

suspend sentence. Nothing in this section shall prevent the 

sentencing court from imposing a sentence greater than 

provided herein. Sentencing guidelines promulgated by the 

Pennsylvania Commission on Sentencing shall not 

supersede the mandatory sentences provided herein. . . .

(d) Appellate review.--If a sentencing court refuses to 

apply this section where applicable, the Commonwealth 

shall have the right to appellate review of the action of the 

sentencing court. The appellate court shall vacate the 

sentence and remand the case to the sentencing court for 

imposition of a sentence in accordance with this section if it 

finds that the sentence was imposed in violation of this 

section. . . .

18 Pa.C.S.A. § 7508.

Following Alleyne, mandatory minimum sentencing statutes that 

followed the above format were generally deemed unconstitutional, as they 

provided that: the “aggravating facts” contained in the mandatory minimum 

statute were not elements of the crime; notice of either the “aggravating 

facts” or of the applicability of the mandatory minimum sentencing statute 

was not required prior to conviction; the applicability of the mandatory 

minimum statute was to be determined at sentencing; the Commonwealth 

need only prove the “aggravating facts” by a preponderance of the evidence; 

a judge – and not a jury – was to act as the fact-finder for purposes of 

determining the “aggravated facts;” and, if the “sentencing court refuse[d] 
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to apply [the mandatory minimum sentence] where applicable, the 

Commonwealth shall have the right to appellate review of the actions of the 

sentencing court.” See, e.g., 18 Pa.C.S.A. § 7508(a)-(d); see also

Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015) (holding that 

18 Pa.C.S.A. § 7508 is unconstitutional in light of Alleyne); 

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014) (holding that 

Alleyne renders 18 Pa.C.S.A. § 7508 unconstitutional in its entirety); see 

also Commonwealth v. Hopkins, 117 A.3d 247, 258-259 (Pa. 2015) 

(“[a]fter Alleyne, these aspects of the statute – that the provisions are 

declared not to be elements of the offense, that notice is not required prior 

to conviction, that factfinding is conducted at sentencing, that the 

sentencing court performs factfinding, that the applicable standard is 

preponderance of the evidence, and that the Commonwealth has the right to 

appeal where the imposed sentence was found to be in violation of the 

statute – are now infirm”).

Further, in Newman, an en banc panel of this Court held that the 

above-summarized, unconstitutional provisions of Pennsylvania’s mandatory 

minimum sentencing statutes were not severable from the remaining, valid 

provisions of the statutes. Therefore, Newman held that mandatory 

minimum sentencing statutes such as 18 Pa.C.S.A. § 7508 were 

unconstitutional in their entirety. Newman, 99 A.3d at 86. Later, in 

Hopkins, our Supreme Court agreed with Newman and held that 
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mandatory minimum sentencing statutes such as 18 Pa.C.S.A. § 7508 were 

wholly unconstitutional. Hopkins, 117 A.3d at 247.

In Commonwealth v. Wolfe, a panel of this Court extended 

Newman and held that a version of 42 Pa.C.S.A. § 9718, which was in 

effect from January 1, 2007 until August 17, 2014, was unconstitutional 

under Alleyne.

11 Wolfe, 106 A.3d at 805. In Wolfe, the 18-year-old 

defendant had sexual intercourse with a 13-year old female; he was then 

charged with and convicted of IDSI with a person less than 16 years of age, 

pursuant to 18 Pa.C.S.A. § 3123(a)(7). Wolfe, 106 A.3d at 805. 18 

Pa.C.S.A. § 3123(a)(7) provides:

A person commits a felony of the first degree when the 

person engages in deviate sexual intercourse with a 

complainant:

. . .

(7) 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.

18 Pa.C.S.A. § 3123(a)(7).

Following Mr. Wolfe’s conviction, the trial court sentenced him to a 

mandatory minimum, ten-year term of imprisonment for the IDSI conviction, 

pursuant to the version of 42 Pa.C.S.A. § 9718 that was in effect from 

____________________________________________

11 At the time Wolfe was decided, our Supreme Court had yet to decide 

Hopkins.
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January 1, 2007 until August 17, 2014. See Wolfe, 106 A.3d at 800. In 

relevant part, this version of Section 9718 read:

(a) Mandatory sentence.—

(1) A person convicted of the following offenses when the 

victim is under 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 

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.

(d) Authority of court in sentencing.--There shall be no 

authority in any court to impose on an offender to which 

this section is applicable any lesser sentence than provided 

for in subsection (a) or to place the offender on probation or 

to suspend sentence. Nothing in this section shall prevent 

the sentencing court from imposing a sentence greater than 

that provided in this section. Sentencing guidelines 

promulgated by the Pennsylvania Commission on 

Sentencing shall not supersede the mandatory sentences 

provided in this section.

(e) Appeal by Commonwealth.--If a sentencing court 

refuses to apply this section where applicable, the 
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Commonwealth shall have the right to appellate review of 

the action of the sentencing court. The appellate court shall 

vacate the sentence and remand the case to the sentencing 

court for imposition of a sentence in accordance with this 

section if it finds that the sentence was imposed in violation 

of this section.

42 Pa.C.S.A. § 9718 (effective from January 1, 2007 until August 17, 2014).

On direct appeal, a panel of this Court sua sponte considered whether 

Section 9718 was unconstitutional, and whether Mr. Wolfe’s sentence was 

illegal, in light of Newman and Alleyne. Wolfe, 106 A.3d at 801-802.

To begin, the Wolfe Court was cognizant that the “aggravating fact,” 

which triggered Mr. Wolfe’s mandatory minimum sentence for IDSI, was that 

the victim was “under 16 years of age” – and that this particular aggravating 

fact was “also contained as an element within the subsection of the IDSI 

statute under which [Mr. Wolfe] was convicted.” Wolfe, 106 A.3d at 805; 

see also 18 Pa.C.S.A. § 3123(a)(7) (“[a] person commits a felony of the 

first degree when the person engages in deviate sexual intercourse with a

complainant . . . who is less than 16 years of age”). Thus, the Wolfe Court 

observed, “in order to convict [Mr. Wolfe] of IDSI, the Commonwealth was 

already required to prove beyond a reasonable doubt that the victim was 

less than 16 years old.” Wolfe, 106 A.3d at 805.

However, the mandatory minimum sentencing statute at issue in 

Wolfe followed the same format that was seen in many of Pennsylvania’s 

mandatory minimum sentencing statutes – and the format that the 

Newman Court had already concluded was fatally unconstitutional. 

Specifically, the version of 42 Pa.C.S.A. § 9718, which was in effect from 
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January 1, 2007 until August 17, 2014, provided that: the “aggravating 

facts” contained in the mandatory minimum statute were not elements of 

the crime; notice of either the “aggravating facts” or of the applicability of 

the mandatory minimum sentencing statute was not required prior to 

conviction; the applicability of the mandatory minimum statute was to be 

determined at sentencing; the Commonwealth need only prove the 

“aggravating facts” by a preponderance of the evidence; a judge – and not a 

jury – was to act as the fact-finder for purposes of determining the 

“aggravated facts;” and, if the “sentencing court refuse[d] to apply [the 

mandatory minimum sentence] where applicable, the Commonwealth shall 

have the right to appellate review of the actions of the sentencing court.” 

42 Pa.C.S.A. § 9718(c)-(e) (effective from January 1, 2007 until August 17, 

2014).

As the Wolfe Court held, since Alleyne rendered the above provisions 

unconstitutional and since Section 9718 followed “the same format as the 

[mandatory minimum sentencing] statute[] [that was] struck down as 

facially unconstitutional in Newman,” the Wolfe Court, too, was required to 

conclude that Section 9718 was facially unconstitutional. Wolfe, 106 A.3d 

at 805. The Wolfe Court explained:

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

victim was less than 16 years of age in order to convict [Mr. 

Wolfe], we cannot ignore the binding precedent from an en 

banc decision of this Court. Newman stands for the 

proposition that mandatory minimum sentence statutes in 

Pennsylvania of this format are void in their entirety. As 
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Section 9718 is indistinguishable from the statute[] struck 

down in Newman . . . , 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.

Wolfe, 106 A.3d at 806 (some internal citations omitted).

In the case at bar, Appellant claims that he is entitled to relief simply 

because the Wolfe Court struck down the particular version of Section 9718 

that was at issue in that case. Appellant’s Brief at 14. Yet, as was explained 

above, Appellant was not sentenced under the version of Section 9718 that 

was struck down in Wolfe. Rather, the trial court sentenced Appellant 

under the version of Section 9718 that was in effect from 1995 until 

November 29, 2004. In relevant part, this version read:

(a) Mandatory sentence.—

(1) A person convicted of the following offenses when the 

victim is under 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 five years.

42 Pa.C.S.A. § 9718 (effective from 1995 until November 29, 2004).

As can be seen, the version of Section 9718 that was in effect from 

1995 until November 29, 2004 did not follow the “same format” as the 

version of Section 9718 that the Wolfe Court struck down – and it did not 

follow “the same format as the [mandatory minimum sentencing] statute[] 

[that was] struck down as facially unconstitutional in Newman.” Wolfe, 
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106 A.3d at 805. Rather, the version of Section 9718 under which Appellant 

was sentenced is spartan: it simply states the “aggravating fact” (which is 

also an element of the crime) and then specifies the punishment for 

violation. Moreover, the version of Section 9718 under which Appellant was 

sentenced does not contain any provision that the Newman, Wolfe, or 

Hopkins Courts concluded were unconstitutional. Specifically, the version 

of Section 9718 that was in effect from 1995 until November 29, 2004 does 

not contain any provision declaring: “that the [aggravating facts] are 

declared not to be elements of the offense, that notice is not required prior 

to conviction, that factfinding is conducted at sentencing, that the 

sentencing court performs factfinding, that the applicable standard is 

preponderance of the evidence, [or] that the Commonwealth has the right to 

appeal where the imposed sentence was found to be in violation of the 

statute.”12 Hopkins, 117 A.3d at 258-259.

Therefore, we conclude that Wolfe does not control this case and that 

Wolfe does not invalidate the version of Section 9718 under which Appellant 

was sentenced. Appellant’s sentences for IDSI are thus not illegal under 

Wolfe.

____________________________________________

12 Further, with respect to Appellant’s sentences for IDSI, our analysis would 

not change even if the trial court had sentenced Appellant under the version

of Section 9718 that was in effect from November 30, 2004 until December 

31, 2006. To be sure, 42 Pa.C.S.A. § 9718(c), (d), and (e) did not become 

effective until January 1, 2007.
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We also conclude that Appellant’s sentences for IDSI are not illegal 

under Alleyne.

13

 In this case, Appellant was convicted of IDSI with a 

person less than 13 years of age (18 Pa.C.S.A. § 3123(a)(6)). This statute 

provides:

§ 3123. Involuntary deviate sexual intercourse.

(a) Offense defined.--A person commits a felony of the first 

degree when the person engages in deviate sexual 

intercourse with a complainant:

. . .

(6) who is less than 13 years of age[.]

18 Pa.C.S.A. § 3123(a)(6) (effective from 1995 until February 6, 2003).

Appellant’s mandatory minimum sentence for IDSI was triggered 

simply by virtue of the fact that the “victim [wa]s under 16 years of age” –

and this fact was an element of Appellant’s conviction for IDSI with a person 

who is “less than 13 years of age.” 42 Pa.C.S.A. § 9718(a)(1) (effective 

____________________________________________

13 Although Appellant’s direct appeal was not literally pending at the time 

Alleyne was decided, it is well-settled that Appellant is entitled to whatever 

benefit the constitutional rule announced in Alleyne would bring him, as this 

is a nunc pro tunc direct appeal from Appellant’s judgment of sentence. 

Commonwealth v. Little, 248 A.2d 32 (Pa. 1968) (the appellant was 

entitled to benefit from the rule announced in the 1966 Miranda decision, in 

a “nunc pro tunc [direct] appeal of a case tried on April 17, 1964”); 

Commonwealth v. McCloud, 383 A.2d 894 (Pa. 1978) (“[the Pennsylvania 

Supreme Court] has held that the [Commonwealth v. McCutchen, 343 

A.2d 669 (Pa. 1975)] line of cases is to be applied to cases on direct appeal. 

The same is true where, by post conviction relief, a petitioner is granted a 

direct appeal as if timely filed as here”); Commonwealth ex rel. Smith v. 

Meyers, 261 A.2d 550 (Pa. 1970).
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from 1995 until November 29, 2004) (“[a] person convicted of the following 

offenses when the victim is under 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 five years”). Thus, 

in this case, Appellant had notice, “ex ante, [of] the contours of the penalty 

that the legislature affixed to” his crimes and application of the mandatory 

minimum sentencing statute was dependent solely upon Appellant’s 

conviction for the crimes at trial, by a jury, based upon proof of all facts 

beyond a reasonable doubt. Alleyne, 113 S.Ct. at 2160-2161 and 2163. 

Appellant’s mandatory minimum sentences for IDSI thus do not offend 

Alleyne and Appellant’s sentences for IDSI are not illegal. Appellant’s claim 

to the contrary fails.

However, since the trial court ordered that all of Appellant’s sentences

be served consecutive to one another, our action – in vacating Appellant’s 

sentences for aggravated indecent assault of a person less than 13 years of 

age (18 Pa.C.S.A. § 3125(a)(7)) – might have disturbed the trial court’s 

overall sentencing scheme. Therefore, we vacate Appellant’s judgment of 

sentence and remand for resentencing. Commonwealth v. Williams, 997 

A.2d 1205, 1210-1211 (Pa. Super. 2010) (“if a correction by this Court may 

upset the sentencing scheme envisioned by the trial court, the better 

practice is to remand [for resentencing]”) (internal quotations, citations, and 

corrections omitted).
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Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

President Judge Gantman joins this memorandum.

Judge Platt files a Concurring and Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2016