J-A31026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RENE SANCHEZ

Appellant No. 1792 MDA 2012 

Appeal from the Judgment of Sentence November 22, 2011

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0002971-2010

BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED MARCH 18, 2015

Rene Sanchez appeals the judgment of sentence entered November 

22, 2011, in the Lackawanna County Court of Common Pleas made final by 

the denial of post sentence motions on September 12, 2012.1 The trial court

imposed an aggregate sentence of 25 to 53 years’ imprisonment, followed 

by four years’ probation, for his convictions of involuntary deviate sexual 

intercourse (“IDSI”), statutory sexual assault,2and related charges, 

____________________________________________

1 We note that Sanchez filed his notice of appeal from the order entered 

September 12, 2012, denying his motion for reconsideration of sentence. 

However, “in a criminal action, appeal properly lies from the judgment of 

sentence made final by the denial of post-sentence motions.” 

Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) 

(en banc), appeal denied, 800 A.2d 932 (Pa. 2002). Therefore, we have 

corrected the caption accordingly.

 

2 18 Pa.C.S. § § 3123(a)(7) and 3122.1, respectively.

(Footnote Continued Next Page)
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resulting from the sexual abuse of his minor cousin (“the victim”). On 

appeal, Sanchez argues (1) the trial court abused its discretion in precluding 

cross-examination of the victim regarding prior false allegations she made to 

the police, and (2) the court erred when it imposed consecutive sentences 

for the charges of IDSI. Although we conclude the issues raised by Sanchez 

on appeal are meritless, for the reasons set forth below, we are constrained 

to vacate the judgment of sentence, and remand for resentencing. 

The facts underlying Sanchez’s conviction are as follows. In November 

of 2009, the victim reported to the Children’s Advocacy Center in Scranton, 

Pennsylvania, that Sanchez, her adult cousin,3sexually molested her on 

three occasions during the summer of 2008, when she was 13 years old.4 

The first incident occurred near the end of the school year. The victim 

accompanied Sanchez to a CVS Pharmacy. However, rather than go in the 

store, Sanchez pulled his car, with tinted windows, near a dumpster behind 

the building. He then provided her with cocaine, and sexually assaulted her 

in the back seat. Sanchez warned the victim not to tell her mother about 

(Footnote Continued) _______________________

3 Sanchez was 22 years old at the time of the incidents in question.

4 The victim initially indicated that the assaults occurred in the summer of 

2007, when Sanchez and his family lived with her family for a few months. 

However, she corrected her testimony at trial after learning that Sanchez 

lived with her family in 2008. 
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the assaults, and threatened to expose the victim’s drug use and drinking if 

she did. 

The second incident occurred a few weeks later at Sanchez’s home. 

Sanchez asked the victim and her brother to help carry bags into his house 

for his mother. Once there, Sanchez told his brother to take the victim’s 

brother for a ride. The victim asked Sanchez’s brother to stay, pleading 

“Don’t go because you know what he’s going to do[.]” N.T., 5/31/2011-

6/1/2011, at 39. However, Sanchez’s brother replied, “[O]h, just suck it up, 

like forget about it.” Id. After she carried a bag upstairs, Sanchez pulled 

her into his room, and, once again, sexually assaulted her. Sanchez again 

threatened the victim, stating “[D]on’t tell your mom or I will tell her that 

you are smoking and drinking and ... you know, if I tell her she is going to 

believe me and they will send [you] away to rehab.” Id. at 41. 

The third assault occurred at the victim’s house during a family 

barbecue. Sanchez anally raped the victim while she was watching TV in the 

living room. He reiterated his threat not to tell her mother. Although the 

victim confided in her brothers and a friend about the assaults, she did not 

tell her parents until sometime in 2009.5 The victim’s father then informed 

the police of his daughter’s allegations. 

____________________________________________

5 The victim’s older brother, who was 14 years old at the time of the 

assaults, testified that he did not tell his parents because Sanchez 

threatened to expose his drug use if he did. N.T., 5/31/2011-6/1/2011, at 

107.
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Sanchez was subsequently arrested and charged him with numerous 

sexual offenses. On May 24, 2011, the Commonwealth filed a motion in

limine, seeking to preclude Sanchez from introducing at trial evidence that in 

October of 2008, the victim had provided false information to the police 

alleging that an unknown black male had kidnapped her and forced her to 

smoke marijuana. She later recanted, admitting that she fabricated the 

story because she had arrived home late, after smoking marijuana. 

Although Sanchez objected, the trial court granted the Commonwealth’s 

motion.

The case proceeded to a jury trial on May 31, 2011. On June 1, 2011, 

the jury returned a verdict of guilty on the following charges: two counts of 

IDSI; three counts each of statutory sexual assault, unlawful contact with 

minors, and aggravated indecent assault; and one count each of indecent 

assault and corruption of minors.6 On June 3, 2011, the trial court ordered 

Sanchez to undergo an assessment by the Sexual Offenders’ Assessment 

Board to determine if he was a sexually violent predator (SVP) under the 

former Megan’s Law. See 42 PaC.S. § 9795.4.7 That same day, the 

____________________________________________

6 18 Pa.C.S. §§ 3123(a)(7), 3122.1, 6318, 3125, 3126, and 6301, 

respectively.

7

Pennsylvania’s Megan’s Law expired on December 20, 2012, and was 

replaced by the Sexual Offenders Registration and Notification Act (SORNA), 

42 Pa.C.S. §§ 9799.10-9799.41. Section 9799.24 replaced Section 9795.4 

with regard to an order for an SVP assessment.
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Commonwealth provided notice of its intent to invoke mandatory minimum 

sentences of 10 to 20 years’ imprisonment for Sanchez’s convictions of IDSI, 

pursuant to 42 Pa.C.S. § 9718(a)(1).

Following a hearing on November 22, 2011, the trial court determined 

that Sanchez did not meet the criteria for classification as a sexually violent 

predator under Megan’s Law. See N.T., 11/22/2011, at 21. The court 

proceeded immediately to sentencing, imposing an aggregate term of 25 to 

53 years’ imprisonment, followed by four years’ probation.8 Sanchez filed a 

____________________________________________

8 The court sentenced Sanchez as follows: two consecutive terms of 10 to 20 

years’ imprisonment for the charges of IDSI; a term of one to five years’ 

imprisonment for each count of statutory sexual assault, to run concurrently 

to each other and consecutively to the other charges; a term of one to two 

years’ imprisonment for each count of unlawful communication with minors, 

to run concurrently to each other and consecutively to the other charges; a 

term of three to six years’ imprisonment for each count of aggravated 

indecent assault, to run concurrently to each other and consecutively to the 

other charges; and two years’ probation on the charges of indecent assault 

and corruption of minors. The court originally ordered the probation 

sentences to run consecutively to each other. However, the court noted in 

in its December 2013 opinion that it modified the original sentence by order 

dated February 13, 2012, so that the probation terms would run 

concurrently “based upon the inability of the Pennsylvania Board of Parole to 

accept supervision of [Sanchez] pending his deportation[.]” Trial Court 

Opinion, 12/30/2013, at 17 n.6. However, the February 13, 2012, order 

neither appears in the certified record or on the lower court docket. 

Furthermore, at that time, the trial court no longer had jurisdiction to modify 

Sanchez’s sentence. See 42 Pa.C.S. § 5505 (trial court has 30 days to 

modify or rescind any order); Pa.R.A.P. 1701(b)(3) (trial court lacks 

authority to proceed further in a matter once a notice of appeal has been 

filed unless the court expressly grants reconsideration within 30 days of 

entry of order). Nevertheless, because we are compelled to remand for 

resentencing, as will be discussed infra, the trial court may modify the 

probationary terms at that time. 
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timely motion for reconsideration of sentence on December 2, 2011, which 

the trial court subsequently denied on September 12, 2012.9 This appeal 

followed.10

____________________________________________

9 We recognize that Sanchez’s notice of appeal was filed more than 120 days 

after he filed his post-sentence motion. Pennsylvania Rule of Criminal 

Procedure 720 provides that when a trial court fails to decide a postsentence motion within 120 days, “the motion shall be deemed denied by 

operation of law” and the clerk of courts “shall forthwith enter an order on 

behalf of the court” and serve a copy on the defendant. Pa.R.Crim.P. 

720(B)(3)(a), (c). 

Here, the trial court denied Sanchez’s post-sentence motion more than 

120 days after the motion was filed. However, the clerk of courts never 

entered an order denying the motion by operation of law after the 120-day 

time period expired. Therefore, the delay in filing the notice of appeal was 

caused “by a breakdown in the processes of the court, that is, the clerk of 

courts’ failure to notify him that his motion had been denied by operation of 

law.” Commonwealth v. Braykovich, 664 A.2d 133, 138 (Pa. Super. 

1995), appeal denied, 675 A.2d 1242 (Pa. 1996). Accordingly, we conclude 

Sanchez’s appeal was timely filed within 30 days of the date the trial court 

denied his post sentence motion. See id. 

10 It bears mention the long delay after the appeal was filed in this Court 

resulted from the trial court’s difficulty in securing a copy of the trial 

transcript. On March 1, 2013, this Court directed the trial court to file an 

opinion, pursuant to Pa.R.A.P. 1925(a). When the trial court failed to 

comply, this Court, sua sponte, stayed the briefing schedule pending receipt 

of the trial court’s opinion. See Order, 4/17/2013. Thereafter, the trial 

court ordered Sanchez to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). Sanchez complied with the trial 

court’s directive and filed a concise statement on July 13, 2013. On 

December 30, 2013, the court filed a preliminary opinion, noting that, 

despite repeated attempts, it still had not received a copy of the notes of 

testimony from Sanchez’s trial, and that the court reporter assigned to 

Sanchez’s trial was no longer employed by Lackawanna County. See Trial 

Court Opinion, 12/30/2013, at 3 n.1. However, the court indicated it had 

ordered the reporter to transcribe the testimony by January 3, 2014. 

Accordingly, the trial court explained it would supplement its opinion after 

(Footnote Continued Next Page)
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In his first issue on appeal, Sanchez contends the trial court abused its 

discretion, and violated his constitutional right to confront witnesses against 

him, when it granted the Commonwealth’s motion in limine, precluding him 

from cross-examining the victim with evidence that she had previously lied 

to police. Specifically, Sanchez sought to admit evidence that, in October of 

2008, the victim arrived home late after she had been smoking marijuana. 

To avoid punishment, she lied to her parents, and told them that an 

unknown black male kidnapped her and gave her marijuana. The victim 

later relayed this same story to police, who filed an incident report. 

However, the victim soon recanted, and admitted that she fabricated the 

story to avoid getting into trouble. See Sanchez’s Brief at 15. 

Sanchez acknowledges that Pennsylvania Rule of Evidence 608(b)(1) 

generally precludes an attack on a witness’s credibility with specific 

instances of conduct. However, he asserts the evidence in the present case 

was admissible because (1) it was closely related to the instant charges, 

particularly the charge of corruption of minors, (2) it had a sufficient indicia 

of reliability, and (3) it was relevant to establish the victim’s “corrupt 

motive.” See Sanchez’s Brief at 15-18.

We begin with our well-established standard of review:

(Footnote Continued) _______________________

receiving a copy of the trial transcript. On February 21, 2014, this Court 

directed the trial court to file a supplemental opinion within 14 days. After 

three more directives from this Court, the trial court ultimately filed a 

supplemental opinion on June 20, 2014. 
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When ruling on a trial court’s decision to grant or deny a motion 

in limine, we apply an evidentiary abuse of discretion standard of 

review. The admission of evidence is committed to the sound 

discretion of the trial court, and a trial court’s ruling regarding 

the admission of evidence will not be disturbed on appeal “unless 

that ruling reflects ‘manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support to be clearly 

erroneous.’ ” 

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010) (citations 

omitted). 

Pennsylvania Rule of Evidence 608 provides, in relevant part, “the 

character of a witness for truthfulness may not be attacked or supported by 

cross-examination or extrinsic evidence concerning specific instances of the 

witness’ conduct[.]” Pa.R.E. 608(b)(1).11 This Court has explained:

[W]henever the accused seeks to offer character evidence for 

purposes of attacking or supporting the credibility of a victim 

who testifies, the admissibility of such evidence is governed by 

Pa.R.E. 608 and proof of specific incidents of conduct by either 

cross-examination or extrinsic evidence is prohibited. 

Minich, supra, 4 A.3d at 1072. Further, “[t]his Court has explicitly held 

that ‘[t]o refuse to allow a defendant to cross-examine a Commonwealth 

witness regarding false statements allegedly made in an unrelated case is 

not an abuse of discretion.’” Commonwealth v. Peer, 684 A.2d 1077, 

____________________________________________

11 The only stated exception to Rule 608(b)(1) is found in Rule 609, that is, 

“evidence that the witness has been convicted of a crime, whether by verdict 

or by plea of guilty or nolo contendere, must be admitted if it involved 

dishonesty or false statement.” Pa.R.E. 609(a). Here, although the victim 

provided a false report to police, she was not charged with or convicted of 

any crime.
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1083 (Pa. Super. 1996) (citation omitted). See Commonwealth v. 

McLaurin, 45 A.3d 1131, 1140 (Pa. Super. 2012) (trial counsel was not 

ineffective for failing to obtain victim’s CYS records demonstrating victim 

“has lied in the past about significant matters” because evidence of “specific 

instances of the witness’ conduct” is not admissible to attack witness’ 

character for truthfulness), appeal denied, 65 A.3d 413 (Pa. 2013), 

overruled on other grounds by Commonwealth v. Pander, 100 A.3d 626 

(Pa. Super. 2014) (en banc).12

In this case, Sanchez sought to present evidence that the victim had 

made a prior false allegation to police that she had been kidnapped in order 

to hide her drug use. We agree with the ruling of the trial court that this 

evidence falls squarely into that prohibited by Rule 608(b)(1). See Trial 

Court Opinion, 6/20/2014, at 13. Citing Commonwealth v. Peetros, 535 

A.2d 1026 (Pa. 1987), Sanchez argues, however, that the proffered 

evidence is subject to an exception to the general rule because “it is closely 

related to the instant charges” and had the “indicia of reliability.” Sanchez’s 

Brief at 15, 16. We disagree.

____________________________________________

12 The en banc Court in Pander overruled McLaurin to the extent that the 

McLaurin Court summarily dismissed the petitioner’s PCRA claim 

challenging trial counsel’s failure to call character witnesses, based solely on 

the petitioner’s failure to attach to his PCRA petition affidavits from the 

proposed witnesses. See Pander, supra, 100 A.3d at 639-640. 
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In that case, Peetros and co-defendant Eden were convicted of bribery 

and related charges after they offered a police officer (Officer Mitsos) 

$10,000 to turn over to them loan records removed from Peetros’s murdered 

brother’s home. Peetros, supra, 535 A.2d at 1028-1029. Their defense 

was based upon duresss and/or entrapment. They claimed Officer Mitsos 

offered to sell them the records, but later turned on them when the deal 

“went sour.” Id. at 1033. In support of this defense, the co-defendants 

sought to introduce evidence that Officer Mitsos had been disciplined by the 

police department in the past for accepting bribes, which resulted in his 

demotion from detective to patrolman. Id. at 1032. However, the trial 

court precluded the evidence “on the basis that the disciplinary actions 

against [Officer] Mitsos had not amounted to a conviction.” Id.

On appeal, the Supreme Court recognized “the rule has generally been 

that unless a prior bad act results in a conviction, it cannot be used to 

impeach a witness.” Id. However, the Court found the proffered evidence in 

the case before it laid in a “grey area,” because, although Officer Mitsos was 

not convicted of a crime, “he was subject to a disciplinary proceeding which 

resulted in his demotion” based upon his acceptance of bribes in the past. 

Id. at 1032-1033. Concluding that the trial court erroneously precluded the 

evidence, the Supreme Court held: 

Balancing these factors, we must conclude that 

defendants’ right under the Sixth Amendment of the United 

States Constitution to fully cross-examine this prosecution 

witness, and their need to do so, outweighs the possible 

diminution of evidentiary value to which a disciplinary 
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proceeding might be subject. This is especially true because the 

subject matter sought to be explored directly relates to the heart 

of the allegations being made against the defendant. To allow 

otherwise would permit the accuser to be shielded from having 

the jury hear evidence of his prior willing participation in the 

very crimes he now attempts to place upon [the defendants]. 

Such would place too great a restraint upon the search for truth. 

Subject to proper presentation, the trial court should have 

granted [the defendants’] request to discredit Mitsos by means 

of his prior disciplinary action. 

Id. at 1034.

Sanchez contends the proffered evidence in this case is similar to that 

in Peetros. He emphasizes that the evidence has “a sufficient indicia of 

reliability” because the victim admitted she lied to the police about the 

kidnapping. Further, he asserts the evidence was necessary to support his 

defense: “[t]he fact that this victim had, in closer temporal proximity than 

the proffered evidence in Peetros, lied to officials that she was criminally 

victimized by another person, is certainly a defense necessity in a case 

where the defense is that the victim is falsely accusing an innocent person.” 

Sanchez’s Brief at 17-18.

We find Peetros distinguishable from the instant matter. First, 

Peetros involved evidence of a disciplinary proceeding against a police 

officer that led to his demotion. That is much more akin to a “conviction” 

than the victim’s prior false allegations in the present case. Furthermore, 

here, unlike in Peetros, the proffered evidence does not “directly relate[] to 

the heart of the allegations being made against the defendant.” Peetros, 

supra, 535 A.2d at 1034. Indeed, in Peetros, the defendants were accused 
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to bribing an officer who, as the proffered evidence showed, in the past had 

willingly taken bribes. Here, the proffered evidence demonstrated that the 

victim had fabricated a story that an unknown black male kidnapped her and 

gave her marijuana to hide the fact that she willingly took drugs. As the 

Commonwealth states in its brief, “this is not the equivalent of reporting 

crimes of sexual abuse against a known perpetrator and testifying against 

him at trial.” Commonwealth’s Brief at 12-13. The trial court found that the 

“evidence of the victim’s false statements were unrelated to the allegations 

against [Sanchez], had limited probative value, and interjected collateral 

issues into the trial.” Trial Court Opinion, 6/20/2014, at 13. We agree, and 

conclude the trial court did not abuse its discretion in precluding this 

evidence.13

____________________________________________

13 We note Sanchez claims the proffered evidence was “uniquely relevant” to 

his corruption of minors conviction since that charge was based on that fact 

that Sanchez had provided the victim with cocaine. Sanchez’s Brief at 18 

(emphasis omitted). He alleges the victim “had a history of lying about men 

victimizing her and then giving her controlled substances, in order to cover 

up her own illicit use of controlled substances[.]” Id. We disagree. In the 

present case, the victim did not disclose the sexual abuse to cover up her 

own cocaine use. Rather, it was only after she provided details of the sexual 

abuse, that she also told authorities Sanchez had given her cocaine. 

Moreover, as the trial court details in its opinion, Sanchez was permitted to 

cross-examine the victim about her prior drug use in an effort to highlight 

her failure to promptly report the abuse allegations. In fact, Sanchez 

questioned the victim specifically why, in October of 2008, when her parents 

and the police learned of her drug use, she did not disclose the sexual 

assaults. See Trial Court Opinion, 6/20/2014, at 13-17. Accordingly, no 

relief is warranted. 
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Sanchez also argues “evidence of a witness’ prior bad acts, even if 

unsupported by a criminal conviction, are permitted to establish the 

existence of a corrupt motive.” Sanchez’s Brief at 18. However, the only 

case cited by Sanchez, Commonwealth v. Evans, 512 A.2d 626 (Pa. 

1986), involves evidence that a testifying co-conspirator might be biased in 

favor of the Commonwealth in hopes of favorable treatment for outstanding 

criminal charges. The Court held that “whenever a prosecution witness may 

be biased in favor of the prosecution because of outstanding criminal 

charges or because of any non-final criminal disposition against him within 

the same jurisdiction, that possible bias, in fairness, must be made known to 

the jury.” Id. at 631. Here, the proffered evidence reveals no possible bias 

on the part of the victim in favor of the Commonwealth. In fact, Sanchez 

admitted at trial he knew of no reasons why the victim would fabricate the 

allegations of abuse. N.T., 5/31/2011-6/1/2011, at 201. Accordingly, we 

conclude the proffered evidence was not admissible to support the victim’s 

possible bias in favor of the Commonwealth, or establish a “corrupt motive,” 

and, therefore, no relief is warranted for Sanchez’s first issue. 

In his second claim, Sanchez contends the trial court erred when it 

imposed consecutive sentences for his convictions of IDSI. He argues 

because both charges arose from the same criminal transaction, i.e., the 

second sexual assault, “the charges merge for sentencing purposes and 

should have run concurrent.” Sanchez’s Brief at 20. 
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It is unclear whether Sanchez is challenging the discretionary aspects 

or the legality of his sentence. To the extent he argues the trial court 

abused its discretion in imposing consecutive sentences, he challenges the 

discretionary aspects of sentencing. See Commonwealth v. Marts, 889 

A.2d 608, 612 (Pa. Super. 2005) (42 Pa.C.S.A. § 9721 “affords the 

sentencing court discretion to impose its sentence concurrently or 

consecutively to other sentences being imposed at the same time or to 

sentences already imposed.”). However, because Sanchez neither raised 

this specific claim in his post-sentence motion, nor included in his brief a 

statement of reasons relied upon for allowance of appeal pursuant to 

Pa.R.A.P. 2119(f),14 the challenge is waived. See Commonwealth v. 

Trinidad, 96 A.3d 1031 (Pa. Super. 2014) (issue waived for failing to 

include claim in post-sentence motion and failing to include Rule 2119(f) 

statement in appellate brief), appeal denied, 99 A.3d 925 (Pa. 2014).

To the extent, however, that Sanchez argues his sentences for IDSI 

should have merged, such a claim implicates the legality of his sentence, 

and cannot be waived on appeal. Commonwealth v. Pettersen, 49 A.3d 

____________________________________________

14 We note that the Commonwealth has objected to Sanchez’s omission of a 

Rule 2119(f) statement. See Commonwealth’s Brief at 16. See also

Commonwealth v. Fremd, 860 A.2d 515, 524 (Pa. Super. 2004) (when 

the Commonwealth objects to appellant’s failure to include Rule 2119(f) 

statement in brief, this Court is precluded from addressing the claim on 

appeal), appeal denied, 889 A.2d 1213 (Pa. 2005). 

 
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903, 911 (Pa. Super. 2012), appeal denied, 63 A.3d 776 (Pa. 2013). “The 

issue is a pure question of law, allowing for plenary review.” Id.

Pennsylvania law regarding the merger of offenses for sentencing 

purposes is codified at 42 Pa.C.S. § 9765. Relevant to this case, the statute 

provides, “[n]o crimes shall merge for sentencing purposes unless the 

crimes arise from a single criminal act and all of the statutory elements of 

one offense are included in the statutory elements of the other offense.” Id.

(emphasis supplied). 

When considering whether there is a single criminal act or 

multiple criminal acts, the question is not “whether there was a 

‘break in the chain’ of criminal activity.” This issue is whether 

“the actor commits multiple criminal acts beyond that which is 

necessary to establish the bare elements of the additional crime, 

then the actor will be guilty of multiple crimes which do not 

merge for sentencing purposes.” 

Pettersen, supra, 49 A.3d at 912 (citations omitted).

Here, although the IDSI charges both arose from the second incident, 

which occurred at Sanchez’s home, each charge was based upon a separate 

act. Count IV of the Information charged Sanchez with IDSI because he 

“performed oral sex on the victim[.]” Information, 12/10/2010, at Count IV. 

Count V, however, charged Sanchez with IDSI because he “had the victim 

perform oral sex on him[.]” Id. at Count V. Because Sanchez committed 

“multiple criminal acts beyond that which [was] necessary to establish the 

bare elements of the additional crime,” the trial court properly concluded the 
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convictions did not merge for sentencing purposes. Pettersen, supra, 49 

A.3d at 912 (citation omitted).15 See also Commonwealth v. Robinson, 

931 A.2d 15, 25 (Pa. Super. 2007) (holding appellant’s convictions of 

corruption of minors and indecent assault did not merge for sentencing 

purposes; although crimes arose from the same criminal episode, the 

corruption of minors charge was based on appellant’s touching of the 

victim’s breasts, and the indecent assault charge was based on appellant’s 

touching of the victim’s vagina).

Nevertheless, our review of the record reveals the trial court imposed 

two mandatory minimum sentences pursuant to 42 Pa.C.S. § 9718, a statute 

that has been found to be constitutionally infirm in light of the United States 

Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 

(U.S. 2013). See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 

2014) (en banc); Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 

2014) (applying Newman to Section 9718). See also Commonwealth v. 

Valentine, 101 A.3d 801, 811-812 (Pa. Super. 2014) (vacating mandatory 

____________________________________________

15 We note the case Sanchez relies upon in his brief, Commonwealth v. 

Fries, 523 A.2d 1134 (Pa. Super. 1987), appeal denied, 531 A.2d 427 (Pa. 

1987), is readily distinguishable. In that case, the defendant, relying a

provision of the Sentencing Code, argued that because his offenses arose 

out of the “same transaction,” the trial court should have applied his prior 

record score of 6 to only one of the offenses, and utilized a prior record 

score of zero for his remaining offenses. Id. at 1137. Here, Sanchez makes 

no claim regarding the application of his prior record score, which, in any 

event, was zero.
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minimum sentence imposed pursuant to 42 Pa.C.S. §§ 9712 and 9718, even 

after a jury had determined triggering factors, because the unconstitutional 

subsections of the statutes were not severable from the remainder of the 

statute). Although Sanchez did not contest the imposition of the mandatory 

minimum sentences on appeal, “a challenge to a sentence premised upon 

Alleyne ... implicates the legality of the sentence and cannot be waived on 

appeal.” Newman, supra, 99 A.3d at 90. Moreover, this Court may 

address the legality of a defendant’s sentence sua sponte. Commonwealth 

v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc), appeal denied, 

95 A.3d 277 (Pa. 2014).

In Wolfe, supra, a panel of this Court applied the reasoning of en 

banc Court in Newman, supra, and its progeny, to conclude that the 

mandatory minimum provisions in Section 9718 are facially unconstitutional. 

Wolfe, supra, 106 A.3d at 805. Although the Wolfe Court recognized the 

fact triggering the mandatory minimum sentence, i.e., that the victim was 

less than 16 years of age, was actually “an element within the subsection of 

the IDSI statute under which [the defendant] was convicted[,]” the Court 

found it was, nonetheless, bound by the en banc decision in Newman, 

which held “that mandatory minimum sentence statutes in Pennsylvania of 

this format are void in their entirety.” Id. at 805, 806 (emphasis 

supplied). The Court concluded, “[a]s Section 9718 is indistinguishable from 
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the statutes struck down in Newman and Valentine, we are constrained to 

conclude that Section 9718 is also facially void.” Id. at 806.

Therefore, although we conclude the issues raised by Sanchez on 

appeal are meritless, we are constrained to vacate the judgment of 

sentence, and remand for resentencing in light of the erroneous imposition 

of the mandatory minimum sentences imposed pursuant to Section 9718.

Judgment of sentence vacated. Case remanded for resentencing 

consistent with this memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2015