J-A14011-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CAPRICE DENNISON,

Appellant No. 1762 MDA 2014

Appeal from the Judgment of Sentence Entered September 9, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0002361-2012

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 24, 2015

Appellant, Caprice Dennison, appeals from the judgment of sentence 

of ten (10) to twenty (20) years’ imprisonment, imposed after she was 

convicted of involuntary deviate sexual intercourse, unlawful contact with a 

minor, and dissemination of obscene material to minors. Appellant alleges 

the verdict is against the weight of the evidence and challenges the 

mandatory minimum sentence of ten (10) years’ imprisonment as 

unconstitutional. After careful review, we conclude that the weight of the 

evidence claim is without merit, but we remand for resentencing. 

The trial court set forth the facts of this case in the following portion of 

its Rule 1925(a) opinion:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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[A.J.], the victim in this case, testified at the bench trial. 

[A.J.] averred that [Appellant] was a friend of his mother’s and 

he had known her his whole life. There were occasions when 

[Appellant] would babysit for [A.J.] and his younger sister. The 

last time [Appellant] watched them overnight was when [A.J.] 

was fourteen (14) years old. When [A.J.’s] mom dropped them 

off at [Appellant’s] apartment building that evening, [Appellant] 

was not home yet. When [Appellant] returned, [A.J.] was 

upstairs in the loft area, while his sister was downstairs watching 

television. [A.J.’s] sister fell asleep on the couch, and [A.J.] 

testified that he was watching TV in the loft area and [Appellant] 

had come upstairs and was on the computer. When asked what 

[Appellant] was doing on the computer, [A.J.] said that she was 

watching inappropriate videos, namely, pornography. 

[Appellant] told [A.J.] that the computer was acting 

weird/slow, so [A.J.] changed the browser for her. Afterwards, 

[Appellant] had [A.J.] go to certain websites featuring male-onmale pornography. [A.J.] testified that he would pull up the 

websites as asked, then would look towards the television 

instead of the computer. [Appellant] then asked [A.J.] if he 

could do some of the things portrayed in the videos, like 

masturbation. She asked him to go downstairs and get a video 

out of a DVD player, which [A.J.] did. The DVD was more maleon-male pornography. At [Appellant’s] request, [A.J.] began to 

masturbate while on a futon. [Appellant] began to touch [A.J.’s] 

penis and proceeded to put her mouth on it. Afterwards, 

[Appellant] got on top of [A.J.] and started grinding, wearing 

only a T-shirt and underwear. At that point, [Appellant] asked 

[A.J.] if he wanted a toy. [A.J.] asked what she meant by that

and [Appellant] told him to go downstairs in her drawer, get the 

toy, and bring Vaseline. [A.J.] did as he was told and discovered 

the toy was a large, fake penis. [Appellant] asked [A.J.] to put 

the Vaseline on the toy and told him to lay down. [Appellant] 

placed the toy inside of [A.J.’s] anus. [A.J.] did not recall 

exactly how long the object was inside of him, but [Appellant] 

eventually asked if he wanted her to stop, and [A.J.] said yes. 

[A.J.] testified that [Appellant] told him that once he ejaculated, 

he could go to bed. [A.J.] could not. More videos were shown, 

and [Appellant] also had [A.J.] lick her breast. [Appellant] 

eventually told [A.J.] that he could go to bed. She told him that 

what had transpired should be kept quiet and that it was private. 

[A.J.] testified that he took a shower and estimated that it 

was now close to 3:00 or 4:00 in the morning. [A.J.] went 
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upstairs afterwards, called his mother, told her what happened, 

and asked her to please come pick him up. [A.J.] packed up his 

belongings, woke his sister, took the cushions from the futon, 

and left. It was 5:00 a.m. He ran to his mom’s car and put the 

cushions in the truck, as he thought they could be used for 

evidence. [A.J.’s] mother had already called the police. 

... [A.J.’s] mother, confirmed that her son called her that 

morning, “frantic, upset, told me something happened. He said 

[Appellant] ... did things to him and I needed to come get him 

right away.” “He sounded scared, shaking, nervous. He was 

talking fast. I knew something was wrong.” 

[Appellant] testified at the bench trial and denied any 

wrongdoing, and denied owning the toy described by [A.J.]. The 

defense also called character witnesses on [Appellant’s] behalf. 

Trial Court Opinion (TCO), dated 3/3/15, at 3-5 (citations omitted). 

At the conclusion of the bench trial, Appellant was found guilty of all 

charges and was sentenced on September 9, 2014, as follows: Count 1 -

involuntary deviate sexual intercourse (18 Pa.C.S. § 3123(a)(7)) - ten (10) 

to twenty (20) years’ imprisonment; Count 2 - involuntary deviate sexual 

intercourse (18 Pa.C.S. § 3123(a)(7)) - ten (10) to twenty (20) years’ 

imprisonment (concurrent with Count 1); Count 3 - involuntary deviate 

sexual intercourse (18 Pa.C.S. § 3123(a)(7)) – no further sentence; Count 4 

- unlawful contact with a minor (18 Pa.C.S. § 6318(a)(1)) – sixty (60) 

months’ probation (consecutive to Count 1); Count 5 - corruption of minors 

(18 Pa.C.S. § 6301(1)(ii)) – sixty (60) months’ probation (concurrent with 

Count 4); and Count 6 - dissemination of obscene material to minors (18 

Pa.C.S. § 5903(c)(1)) – sixty (60) months’ probation (concurrent with Count 

4). TCO, at 1. 
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On September 18, 2014, Appellant filed a post-sentence motion, 

preserving her weight of the evidence claim; however, said motion was 

denied. On October 17, 2014, Appellant filed a notice of appeal, followed by 

a timely 1925(b) Statement of Errors Complained of on Appeal. Appellant 

now presents the following issues for our review: 

I. Whether the trial court illegally sentenced Appellant to a 

mandatory minimum sentence of ten (10) years’ 

imprisonment for indecent assault of a child under sixteen 

years pursuant to 42 Pa.C.S. § 9718(a)(1) where the 

statute at issue – 42 Pa. C.S. § 9718 – is unconstitutional 

as a whole since it violates Appellant’s right to a jury trial 

under Article I, Section IX of the Pennsylvania Constitution 

and the Sixth Amendment to the United States 

Constitution? 

II. Whether the trial court erred in denying Appellant’s PostSentence Motion where the verdict was against the weight 

of the evidence so as to shock one’s sense of justice where 

Appellant was never shown to have engaged in the acts 

which constitute the crimes of which she was convicted? 

Appellant’s Brief, at 5. 

We will first address Appellant’s weight of the evidence claim. It is 

well settled that:

[a] claim alleging the verdict was against the weight of the 

evidence is addressed to the discretion of the trial court. 

Accordingly, an appellate court reviews the exercise of the trial 

court’s discretion; it does not answer for itself whether the 

verdict was against the weight of the evidence. It is well settled 

that the jury is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses, and a new trial 

based on a weight of the evidence claim is only warranted where 

the jury’s verdict is so contrary to the evidence that it shocks 

one’s sense of justice. In determining whether this standard has 

been met, appellate review is limited to whether the trial judge’s 

discretion was properly exercised, and relief will only be granted 
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where the facts and inferences of record disclose a palpable 

abuse of discretion. 

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations 

and internal quotation marks omitted). 

Here, the trial court listened to testimony given by both the victim and 

Appellant and determined the victim’s testimony to be credible. TCO, at 5. 

“On issues of credibility and weight of the evidence, an appellate court 

defers to the findings of the trial judge, who has had the opportunity to 

observe the proceedings and demeanor of the witnesses.” Commonwealth 

v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002). After reviewing all 

of the evidence presented at trial and taking into consideration the 

witnesses’ testimony, the trial court concluded that the Commonwealth 

proved each and every element of the crimes charged in Counts 1 through 6.

Accordingly, the court found Appellant guilty on all 6 counts. TCO, at 5. We 

ascertain no abuse of discretion in the trial court’s denial of Appellant’s 

challenge to the weight of the evidence in these circumstances, and 

therefore, conclude said claim is without merit.

Next, we note our 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. It is also wellestablished that [i]f 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. 
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Commonwealth v. Wolfe, 106 A.3d 800, 801-802 (Pa. Super. 2014) 

(citations and quotation marks omitted). 

Here, Appellant claims that the trial court illegally sentenced her to a 

mandatory minimum sentence of ten years’ imprisonment for indecent 

assault of a child under sixteen years pursuant to 42 Pa.C.S. § 9718(a)(1).1 

Appellant requests that this Court vacate her judgment of sentence and 

remand for resentencing without consideration of any mandatory minimum 

sentence. Appellant’s Brief, at 14. The Commonwealth has no objection to 

this case being remanded for the limited purpose of resentencing. 

Appellee’s Brief, at 7. The trial court concurs. TCO, at 10.

In Alleyne v. United States, 133 S.Ct. 2151 (2013), 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. Id. 

____________________________________________

1 Section 9718(a)(1) provides:

§ 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.

42 Pa.C.S. § 9718.
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at 2163. Subsequently, this Court struck down statutes imposing mandatory 

minimum sentences as unconstitutional in light of Alleyne.

2

 In 

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

defendant appealed from an aggregate judgment of sentence of ten (10) to 

twenty (20) years’ imprisonment, imposed after he was found guilty of 

multiple counts of involuntary deviate sexual intercourse, unlawful contact 

with a minor, statutory sexual assault, and corruption of minors, we 

specifically addressed the constitutionality of the mandatory minimum 

sentencing provision in 42 Pa.C.S. § 9718, the same statute being 

challenged in the present case. Following the decisions in Newman and 

Valentine, we concluded in Wolfe that Section 9718 is facially 

unconstitutional. Wolfe, 106 A.3d at 805. Accordingly, we are compelled to 

conclude that the trial court imposed an illegal sentence in this case when it 

imposed the mandatory minimum sentence set forth in Section 9718. 

Judgment of sentence vacated. Case remanded for resentencing 

without the application of the Section 9718 mandatory minimum, consistent 

with this memorandum. Jurisdiction relinquished. 

____________________________________________

2 See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) 

(concluding the appellant’s sentence was illegal and striking down 42 Pa.C.S. 

§ 9712.1 as unconstitutional). See also Commonwealth v. Valentine, 

101 A.3d 801 (Pa. Super. 2014) (vacating the judgment of sentence and 

remanding for resentencing without the applicable mandatory minimum 

sentences). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015