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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COU RT OF : PENNSYLVANIA Appellee :

: v. : : PAUL GRAHAM, : : Appellant : No. 567 WDA 2014

Appeal from the Judgment of Sentence March 12, 2014 In the Court of Common Pleas of Washington County Criminal Division No(s).: CP-63-CR-0001468-2012 BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J.: FILED JUNE 16, 2015 Appellant, Paul Graham, appeals from the judgment o f sentence entered in the Washington County Court of Common Pl eas after he was convicted of numerous sexual offenses against a min or. He challenges the sufficiency and weight of the evidence, the legalit y of the trial court’s sentence, and the discretionary aspects of the cour t’s sentence. We affirm the convictions, find partial sentencing relief is due, and remand for resentencing. Appellant was charged with, inter alia , rape, 1 four counts of involuntary deviate sexual intercourse, 2 two counts of aggravated indecent

* Former Justice specially assigned to the Superior Court.J. S17009/15

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assault, 3 three counts of statutory sexual assault, 4 three counts of indecent assault, 5 and two counts of corruption of the morals of mino rs. 6 The charges arose from allegations he molested his then nine-ye ar-old niece (“the victim”) between 2003 and 2005.

The trial court summarized the trial evidence as fo llows: A two-day jury trial began on September 16, 2013 related to allegations of sexual assault committed by the Appellant against his niece when she was a child. At trial, the Commonwealth offered the testimony of the victi m, her mother, and the arresting officer. At the time of trial, the victim was nineteen year s old. The Appellant married the victim’s aunt when the vi ctim was approximately nine years old. The victim’s and Appellant’s famil[ies] were close, and the Appellan t acted as the victim’s babysitter while her parents worked . The Appellant babysat the victim and her brother “prett y much every day.” Sometimes she would stay the night at the Appellant’s residence and he would assist her with getting ready for school the next morning. The victim enjo yed spending time with her uncle, because he would play games with her and “pretty much did whatever [the victim] wanted to do all the time.”

1 18 Pa.C.S. § 3121(a)(6) (subsequently amended and renumbered 18 Pa.C.S. § 3121(c), effective Feb. 7, 2003).

2 18 Pa.C.S. § 3123(a)(6) (subsequently amended and renumbered as 18 Pa.C.S. § 3123(c), effective Feb. 7, 2003).

3 18 Pa.C.S. § 3125(a)(7).

4 18 Pa.C.S. § 3122.1.

5 18 Pa.C.S. § 3126(a)(7).

6 18 Pa.C.S. § 6301(a)(1).J. S17009/15

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- However, in February of 2003, when the victim was nine years old, the Appellant began to sexually abu se the child. While wrestling, the victim stuck her tongu e out at the Appellant, and he warned her not to do it again . When she did, the Appellant licked the inside of the vic tim’s mouth and her tongue. In another episode, the Appe llant stuck his fingers in the victim’s mouth and made he r suck on them. He also made the victim lift up her shirt while he touched and licked her nipples. Similar events hap pened multiple times. The Appellant’s family eventually moved into the victim’s prior home, while the victim and her famil y resided three blocks away. The victim was close to ten yea rs old at the time. The two residences were in walking di stance to each other, and the Appellant continued to babys it the victim. The two often spent time in the Appellant’s bedroo m. The victim testified that Appellant once removed tw o vibrators from a dresser drawer. He placed them on the victim’s legs and explained that it was supposed to make her feel good. He then removed the victim’s pants and rubbed the objects “between [her] vagina and push[e d] them on [her] clitoris.” When asked if the objects penetrated her vagina, the victim responded, “they went in between the lips.” The Appellant would regularly remove the victim’s pants. In one episode he made the victim sit on to p of his face and then placed his tongue in her vagina. Onc e, the Appellant made the victim bend over on all fours wh ile he removed her pants. He then placed his finger into the victim’s anus. The act was extremely painful for t he victim, who pulled away and ran to the bathroom. T he victim was frightened when the event caused a “muco usy” discharge. The Appellant laughed and told the vict im that it would be “okay.” The Appellant also forced the victim to perform or al sex on him. The victim recalled gagging and pulling aw ay. These sexual assaults occurred almost every time th e victim was at the Appellant’s residence. On anothe r occasion, the Appellant made the victim lay down on the bed, while he put his penis in between her thighs a nd thenJ. S17009/15

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- ejaculated. The Appellant’s semen contacted the vi ctim’s pants and thighs. Once, while sitting by the pool, the Appellant placed his fingers in the victim’s vagina . The victim recalled occasions where her and Appellant w ould be sitting on the couch while he would touch her va gina above her clothes or pinch her nipples. The victim also testified that on one occasion the Appellant removed the victim’s pants, forced her to lie on the bed, and placed his penis between the lips of h er vagina. The Appellant ejaculated on the victim’s l egs and vagina. The Appellant once inserted his penis into the victim’s anus. The victim was subjected to extreme pain and stated that it “felt like I had been ripped.” She ran to the bathroom and observed spots of blood on the toi let paper used to wipe the area. Because of the continuous systemic abuse, the vict im testified that the acts were “kind of like a normal thing, like I was kind of used to it by then. [Appellant] always told me if I would ever tell anybody, he would go t o jail for a long time. He was like my best friend, so I didn ’t really want him to leave.” The victim also explained that the Appellant would tell her stories of his previous sexual encounters. She recalled that he once took her to a video rental business an d rented a pornographic video tape. The victim waited in th e vehicle, while the Appellant “ran” into the store, acquired the tape, and then ran back to the vehicle. At his residence, he and [the] victim watched the video. He provided wine to the victim and encouraged her to d rink it, which she did on one occasion. He also provided cigarettes to the victim and encouraged her to smok e them. After a family dispute in 2005, the Appellant and his family moved out of the residence when the victim w as around twelve years old. Because the two families no longer interacted, the abuse ceased. The victim di d not come forward at that time, because she did not want to cause more problems or fighting. However, the victim ultimately came forward with h er abuse in the summer of 2012. She had spoken with aJ. S17009/15

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- close friend who encouraged her to disclose the abu se. The victim was concerned, because her cousin . . . had two young children, which she believed resided in the s ame home as the Appellant. With the encouragement from her friends, the victim told her mother. She later wen t to the Charleroi Police Department to report her abuse. The victim’s mother corroborated that between the years of 2003 and 2005 her and her husband had busy employment schedules and relied on the Appellant an d his wife to babysit their children. The victim had exp lained to her mother that she had been sexually assaulted for a period of time between the ages of nine and twelve years old. During that time, the victim’s temper tantrum s [ ] prompted mother and child to visit a medical doctor . Near the end of the two families’ relationship, the vict im told her mother that she no longer wanted to go to the Appel lant’s home, but she did not expand on her reasons. The final witness was Detective Lieutenant Eric Po rter. Lt. Porter had been a member of the Charleroi Polic e Department for over fifteen years. The victim was interviewed by Lt. Porter and a criminal complaint was prepared. Due to the length of time between the ab use and its reporting, there was no attempt to collect any physical evidence by means of a “rape kit” or other physical medical examination. He testified that it was common for minor children to not come forward for a long period of time. Trial Ct. Op., 6/6/14, at 2-5. Appellant did not t estify or present any exhibits or witnesses on his behalf. On September 17, 2013, the jury found Appellant guilty on all counts. At sentencing on December 16, 2013, the trial court found Appellant was a second-time offender and applied the twenty-f ive-to-fifty-year mandatory sentence prescribed by 42 Pa.C.S. § 9718. 2 to the convictions of rape, involuntary deviate sexual intercourse, and a ggravated indecentJ. S17009/15

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assault only. It structured its sentences on the r emaining count to reach an aggregate sentence of 142 to 284 years’ imprisonmen t. On December 26, 2013, Appellant filed timely post-s entence motions seeking arrest of judgment, new trial, and reconsid eration of sentence. The trial court heard arguments on February 14, 2014, a nd on March 4, 2014, denied Appellant’s requests for arrest of judgment and new trial, but granted sentencing reconsideration based on its failure to apply Section 9718.2 to all charges subject to a mandatory sentence. On March 12th, the trial court convened a resentenc ing hearing and did not alter its prior, consecutive sentences of t wenty-five to fifty years for rape and four counts of involuntary deviate sexual intercourse. The court applied Section 9718.2 and sentenced Appellant to t wenty-five to fifty years on the counts of statutory sexual assault, indecent assault, and corruption of the morals of a minor. However, it ordered these n ew sentences and its prior, consecutive sentences on the two counts of a ggravated indecent assault to run concurrently. This resulted in an a mended aggregate sentence of 125 to 250 years’ imprisonment base on consecutive mandatory sentences of twenty-five to fifty years on one coun t of rape and four counts of involuntary deviate sexual intercourse. Appellant filed a timely notice of appeal on April 3, 2014, and a courtordered Pa.R.A.P. 1925(b) statement of matters comp lained of on appeal onJ. S17009/15

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April 17, 2014. On June 6, 2014, the court issued its Pa.R.A.P. 1925(a) opinion. 7 This appeal followed. Appellant presents four issues on appeal: Did [the Commonwealth] present sufficient evidence, as a matter of law, for each of the counts for which [Ap pellant] was convicted?; Does the weight of the evidence require that the ve rdict on said counts be reversed and stricken?; Did the trial court err in sentencing by modifying its original sentence by imposing mandatory minimum sentences?; and Did the trial court abuse its discretion in sentenc ing [Appellant] to a term of a total of 125 to 250 year s? Appellant’s Brief at 5. Appellant first claims the evidence was insufficien t to sustain the instant convictions because the victim’s allegation s were unworthy of belief. He asserts that for the jury to credit the victim’s testimony, it “would have to conclude that for approximately three (3) years the victim was abused virtually every day, or close to 1,000 times with i ndividuals present in the home where the abuse had occurred for approximately 333 separate

incidents of abuse.” Id. at 13. According to Appellant, the victim’s lack of prior disclosures, despite having opportunities to do so, further undermined

7 The Commonwealth, after requesting two extensions of time, did not file a brief with this Court.J. S17009/15

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her testimony regarding the frequency of the abuse and her experiences of physical pain. Id. We disagree. Preliminarily, we are compelled to observe Appellan t failed to either preserve or present a proper sufficiency of the evi dence claim. Specifically, Appellant’s Pa.R.A.P. 1925(b) statement and brief t o this Court baldly assert the evidence was insufficient without identifying a specific basis in the elements of the myriad crimes of which he was convi cted. See

Commonwealth v. Melvin , 103 A.3d 1, 42 (Pa. Super. 2014) (finding waiver of defendant’s sufficiency claim where 1925( b) statement failed to specify element of offense for which evidence was i nsufficient); Commonwealth v. Manley , 985 A.2d 256, 262 (Pa. Super. 2009) (finding waiver where appellant’s brief presented vague, und eveloped sufficiency challenge that did not specify allegedly unproven e lements). Moreover, Appellant’s challenges to the credibility of victim ’s allegations ignore our

well-settled standards of review. See Commonwealth v. Palo , 24 A.3d 1050, 1054-55 (Pa. Super. 2011) (reiterating suffic iency review requires viewing all evidence in light most favorable to ver dict winner and respecting trier of fact’s province to believe all, part, or n one of evidence);

Commonwealth v. Jette , 818 A.2d 533, 534-35 (Pa. Super. 2003) (noting uncorroborated testimony of victim sufficient to co nvict on sexual offenses). Indeed, Appellant’s arguments are more properly dir ected to the weight of the evidence, which we discuss below, and not the s ufficiency of theJ. S17009/15

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evidence. See Palo , 24 A.3d at 1055 (claims directed to primary witne ss’s credibility challenges weight, not sufficiency). A ccordingly, Appellant’s sufficiency claim is subject to waiver. See id. In any event, were we to address Appellant’s gene ral claim that no probability of fact could be derived from the victi m’s testimony, our review of the record and the application of the proper sta ndard of review would compel the conclusion that Appellant’s argument is indeed frivolous. See id. at 1055-56; Jette

, 818 A.2d at 535. Thus, Appellant’s challenge to t he sufficiency of the evidence warrants no relief. Appellant next contends the verdict is against the weight of the evidence because the victim’s testimony was uncorro borated by third parties or medical evidence. Appellant’s Brief at 14-15. He asserts the absence of collaboration outweighs the victim’s allegations of abuse because (1) the alleged abuse was systemic and occurred almost dail y, (2) other people were present in the home during “about one-third of the times she was abused,” and (3) another person, Appellant’s wife, was in the same room at

other times. Id. Appellant emphasizes the victim did not promptly report the abuse and, although the victim experienced phys ical pain, bleeding, and discharge, a physician did not discover the abuse w hen he saw her for “temper tantrums.” Id. at 15. No relief is due. This Court’s consideration of a weight of the evide nce claim is governed by the following principles:J. S17009/15

- 10 - Before a trial court may award a new trial on the g round that the verdict is against the weight of the evide nce, it must appear that the verdict was so contrary to the evidence as to shock one’s sense of justice and mak e the award of a new trial imperative. After the trial c ourt has ruled on the weight claim, however, our role, as an appellate court, is not to consider the underlying question of whether the verdict is against the weight of the evidence, but is limited to determining whether the trial court abused its discretion in ruling on the weight of the evidence claim.

Commonwealth v. Wall , 953 A.2d 581, 586 (Pa. Super. 2008) (citations, quotation marks, and brackets omitted). Instantly, Appellant preserved his claim in the tri al court. See Pa.R.Crim.P. 607(a)(3). The trial court denied his request for a new trial, opining: At trial, the victim testified at length to the con tinuous

and systemic sexual abuse she endured as a young ch ild at the hands of [Appellant]. Little to no evidence contradicted the victim’s testimony. The jury alon e determined the credibility of the witnesses. After deliberation, they found [Appellant] guilty of all charges against him. The verdict was not contrary to the e vidence and did not shock this Court’s sense of justice. Trial Ct. Op., 3/4/14, at 2. Our review of the record reveals ample support for the trial court’s reasoning. The victim specifically described how A ppellant abused her by using vibrators in her vagina, 8 performing oral sex on her, 9 forcing her to

8 N.T., 9/16/13, at 47.

9 Id. , at 48-49.J. S17009/15

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perform oral sex on him, 10 ejaculating on her, 11 penetrating her anus with his finger 12 and penis, 13 and penetrating her vagina with his finger 14 and with his penis. 15 She testified such abuse occurred regularly. 16 As the trial court observed, no evidence contradicted these acco unts. Thus, having reviewed the record, we discern no abuse of discret ion in the trial court’s ruling on Appellant’s motion for a new trial and co nclude no appellate relief

is due. Appellant directs his final two challenges to the legality and discretionary aspects of his sentence. We first ad dress Appellant’s legality challenge to the imposition of increased sentences for second-time sex offenders, as prescribed by 42 Pa.C.S. § 9718.2. 17 See Appellant’s Brief at

10 Id. at 50-51.

11 Id. at 52, 56.

12 Id. at 49.

13 Id. at 56.

14 Id. at 54.

15 Id. at 55-56.

16 Id. at 51.

17 We observe Appellant raised this claim for the fir st time in his brief. Nevertheless, as discussed below, this case involve s the trial court’s statutory authority to apply a mandatory sentence a nd exceed an otherwise proper maximum sentence. Thus, it falls within the types of sentencing challenges that are not waivable and can be address ed sua sponte

. See Commonwealth v. Watley , 81 A.3d 108, 118 (Pa. Super. 2013) ( en banc ).J. S17009/15

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16-17. He does not dispute he is a second time off ender. 18 Rather, Appellant argues the trial court erred in applying Section 9718.2 because his criminal acts occurred between 2003 and 2005, but t he statute did not take effect until January 1, 2007. In support, Appellan t relies on

Commonwealth v. Rose , 81 A.3d 123 (Pa. Super. 2013) ( en banc ), appeal granted , 95 A.3d 275 (Pa. 2014). We conclude relief is du e on this claim.

We have stated:

The scope and standard of review applied to determi ne the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, tha t sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial co urt’s application of a statute, our standard of review is plenary and is limited to determining whether the trial cou rt committed an error of law. A challenge to the lega lity of a sentence “is essentially a claim that the trial cou rt did not have jurisdiction to impose the sentence that it ha nded down. . . . A trial court ordinarily has jurisdic tion to impose any sentence which is within the range of punishments which the legislature has authorized fo r the defendant’s crimes.”

Melvin , 103 A.3d at 52 (citations omitted).

In Rose , the defendant attacked the victim in July 1993, a nd was sentenced in 1994 for his convictions for attempted murder, aggravated assault, involuntary deviate sexual intercourse, an d recklessly endangering another person. Rose , 81 A.3d at 125. The victim remained in a vegetat ive state until she died from her injuries in 2007. Id.

18 In 1986, Appellant pled guilty to, inter alia , rape and involuntary deviate sexual intercourse. N.T., 12/16/13, at 4.J. S17009/15

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A month after the victim’s death, the Commonwealth, in Rose , charged the defendant with homicide, and he was fou nd guilty of thirddegree murder in 2010. Id. at 125-26. At sentencing, the defendant argued a twenty-year maximum applied based on law a t the time of the

attack. Id. at 126. The Commonwealth asserted a forty-year ma ximum applied based on 18 Pa.C.S. § 1102(d), 19 which took effect in 1995, two years after the attack, but more than a decade befo re the death of the victim and completion of the homicide. Id. at 126. The trial court agreed

with the Commonwealth and sentenced defendant to tw enty to forty years’ imprisonment. Id. On appeal, the defendant challenged the trial court ’s application of Section 1102(d). The Rose Court vacated the sentence, and concluded:

Since the criminal acts that caused the victim’s de ath were completed prior to the passage of § 1102(d), and th at statute increased the penalty for the acts causing the victim’s death, we find that Appellant was improper ly sentenced in violation of the respective federal an d Pennsylvania Constitution ex post facto clauses.

Id. at 136.

19 Section 1102(d) sets the maximum penalty for murde r of the third degree: Notwithstanding section 1103, a person who has been

convicted of murder of the third degree or of third degree murder of an unborn child shall be sentenced to a t erm which shall be fixed by the court at not more than 40 years. 18 Pa.C.S. § 1102(d) (as amended in 1997 to include unborn children).J. S17009/15

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Now President Judge Gantman, joined by Judge Allen , dissented, reasoning:

[a]lthough the attack happened years before, there was no murder until the final element of the offense, the victim’s death, actually occurred. In my opinion, the court did not “retroactively apply” Section 1102(d); rather, the court utilized the sentencing statute in effect at the ti me of the murder. Therefore, the court’s sentence was proper because Section 1102(d) went into effect in 1995, b efore the murder occurred.

Id. at 137 (Gantman, J., dissenting). As noted above, Appellant’s current crimes occurred between 2003 and 2005. As enacted in 2006, Section 9718.2 provi ded, in relevant part:

(a) Mandatory sentence.— (1) Any person who is convicted in any court of thi s Commonwealth of an offense set forth in section 9795.1(a) or (b) (relating to sexual offenses and t ier system) shall, if at the time of the commission of the current offense the person had previously been convicted of an offense set forth in section 9795.1 (a) or (b) or an equivalent crime under the laws of this Commonwealth in effect at the time of the commissio n of that offense or an equivalent crime in another jurisdiction, be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstandin g any other provision of this title or other statute to the contrary. . . . (b) Mandatory maximum.— An offender sentenced to a mandatory minimum sentence under this section shall be sentenced to a maximum sentence equal to twice the mandatory minimum sentence, notwithstanding 18 Pa.C .S. § 1103 (relating to sentence of imprisonment for fe lony) or any other provision of this title or other statute to the contrary.J. S17009/15

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42 Pa.C.S. § 9718.2(a)(1), (b) (subsequently amende d Dec. 20, 2011, effective Dec. 20, 2012, to comport with adoption o f 42 Pa.C.S. § 9799.14 (relating to sexual offenses and tier system)). As noted above, the statute took effect on January 1, 2007. Relying on this statute, the trial court imposed m andatory minimum sentences of twenty-five to fifty years for rape, i nvoluntary deviate sexual intercourse, aggravated indecent assault, statutory sexual assault, indecent assault, and corruption of the morals of minors. T hese mandatory sentences exceed the sentences authorized by the sentencing s tatute in effect when Appellant committed these crimes. Specifically, th e former statute authorized maximum sentences of at least twenty, an d up to forty years, for rape and involuntary deviate sexual intercourse, 20 ten years for aggravated indecent assault and statutory sexual assault, and up to five years for indecent assault and corruption of the morals of mi nors. See 18 Pa.C.S. §§ 1103, 1104. The instant case does not raise the thorny issue o f whether a statute should apply based on the commission of the acts or the completion of the

20 As noted above Sections 3121(a)(6) (rape) and 3123 (a)(b) (involuntary deviate sexual intercourse) were designated as Subs ection (c) in the respective statutes effective February 14, 2003. T he General Assembly also increased the maximum sentence to forty years. See 18 Pa.C.S. §§ 1103(a), 3121(e)(1) (effective Feb. 14, 2003). Giv en the narrow sentencing issue raised in this appeal, we decline to consider whether a twenty or forty year maximum sentence applies.J. S17009/15

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crime. Instead, the narrower question before us is whether the trial court properly applied Section 9718.2 when Appellant was convicted for crimes completed between 2003 and 2005 and sentencing stat ute came into effect in 2007. Under these circumstances, Rose compels the conclusion that the trial court erred in relying on a sentencing statut e that post-dates the subject crimes. Thus, all sentences imposed based on Section 9718.2 must

be vacated. See Melvin , 103 A.3d at 52. As our decision affects a fundamental aspect of the trial court’s sentencing scheme, we decline to consider Appellant’s discretionary sentencing claim s, vacate the judgment of sentence in part, and remand this case for resenten cing. See

Commonwealth v. Williams , 997 A.2d 1205, 1210-11 (Pa. Super. 2010). Judgment of sentence affirmed in part and vacated in part. Case remanded for resentencing. Jurisdiction relinquish ed. Judge Shogan joins the memorandum. President Judge Gantman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 6/16/2015J. S17009/15

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