J-S38012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANGEL RESTO

Appellant No. 2125 MDA 2014

Appeal from the Judgment of Sentence of November 24, 2014

In the Court of Common Pleas of Schuylkill County

Criminal Division at No.: CP-54-CR-0001840-2013

BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.: FILED JULY 14, 2015

Angel Resto appeals his November 24, 2014 judgment of sentence, 

which was imposed after Resto was convicted by a jury of rape of a child, 

unlawful contact or communication with a minor, statutory sexual assault, 

indecent assault, corruption of the morals of a minor, and indecent 

exposure.1 Herein, Resto challenges the sufficiency of the evidence and the 

legality of his sentence. We reject his sufficiency challenge, but we conclude 

that his sentence was illegal. Hence, we vacate Resto’s judgment of 

sentence, and we remand for resentencing. 

The trial court set forth the facts underlying Resto’s convictions as 

follows:

____________________________________________

1 18 Pa.C.S. §§ 3121(c), 6318(a)(1), 3122.1(a)(2), 3126(a)(7), 

6301(a)(1)(i), 3127(a). 
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At trial[,] the victim, KL, testified that she knew [Resto] as 

“Sketch” and had met him through friends about three to four 

weeks before the incident giving rise to the charges. During that 

time[,] she communicated with him by texting. Two weeks 

before the incident, she saw Resto at the Tamaqua train station. 

He asked her if she wanted to “chill.” She told Resto that she 

was twelve [years-old.]

On January 4, 2013, KL and a friend were at KL’s apartment for 

a sleep over. KL, who was twelve years[-]old, lived with her 

mother, but the mother was at work, and the girls were alone. 

They were texting Resto and inviting him over. He arrived 

around 7:00 p.m. The girls met him on the front porch and led 

him up to the apartment. 

KL testified that Resto talked to the girls briefly and then told her 

he wanted to talk to her alone. He grabbed her wrist and led her 

down a hallway to her sister’s bedroom. She testified that she 

resisted a little, but his grip got tighter. Her friend stayed in the 

living room doing Facebook.

KL’s friend called her back to the living room for help in changing 

the channel on the television. When KL returned to the 

bedroom, [Resto] started kissing her and moving his hands over 

her body. He removed her shorts and underwear. She said she 

was trying to pull them up, but he was stronger. Resto then 

threw her on the bed, got on top of her, pulled his pants down, 

inserted his penis in her vagina and engaged in sexual 

intercourse. She said that she told him to stop several times, 

but he only stopped when his cell phone rang. He answered the 

phone, engaged in a five minute conversation and then resumed 

having intercourse with her until the phone rang again, at which 

time he stopped, pulled up his pants and talked on the phone for 

ten more minutes.

KL got dressed and walked Resto to the door as he was leaving. 

She noticed there were blood and fluid stains on the mattress 

where she had been lying. After Resto left, KL told her friend, 

EN, that she had just had sex with Sketch.

EN’s testimony verified that Resto was invited over and went into 

the bedroom with KL. She said that KL came out of the bedroom 

to change the music station and then returned to the bedroom. 

She described KL walking out of the bedroom with Resto, who 

left right away. KL had blood showing through her pants in her 

vaginal area and announced that she had sex with Sketch. KL 
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then took EN into the bedroom, and EN helped KL turn over the 

mattress to hide the stain.

KL’s mother did not find out what happened until May when she 

read something on KL’s Facebook account. It was then that KL 

gave a statement to the police. Later, KL’s mom mentioned to 

the police that the mattress was still in her home with the stain. 

They went to the house in September of 2013, and found the 

mattress standing on its side against the wall with a visible stain. 

Two segments were cut out and sent to the crime lab for testing 

along with oral swabs obtained from Resto and KL.

Corporal [Henry] Woods of the Tamaqua Police Department, who 

took KL’s statement, testified that she did not mention being 

pulled into the bedroom, telling Resto to stop or resisting. He 

also confirmed that Resto was twenty years[-]old at the time of 

the events.

A State Police laboratory technician testified that the stains on 

both mattress segments were blood and seminal fluid. A 

forensic DNA analyst then confirmed that the sperm fraction of 

the stains matched [Resto] and that the non-sperm fraction was 

a mixture. The major part of that mixture was a match for KL. 

Neither [Resto] nor KL could be excluded as the source of the 

minor portion. The analyst also testified that as long as the 

sample was not manipulated to add more DNA, it could remain 

intact for an indefinite period of time, especially if not exposed to 

sunlight or rain. 

Trial Court Opinion (“T.C.O.”), 1/29/2015, at 2-4. 

On November 24, 2014, the trial court sentenced Resto to a 

mandatory minimum ten to twenty years’ incarceration on the rape of a child 

conviction pursuant to 42 Pa.C.S. § 9718(a)(3) (requiring imposition of a 

mandatory minimum ten-year sentence for an offender convicted of rape of 

a child pursuant to 18 Pa.C.S. § 3121(c)). The trial court also sentenced 

Resto to a consecutive term of six to twelve months’ incarceration on the 

unlawful contact with a minor conviction. All other sentences imposed by 
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the trial court were ordered to run concurrent to the rape sentence. Thus, in 

the aggregate, Resto was sentenced to ten years and six months to twentyone years in prison. 

On December 12, 2014, Resto filed a notice of appeal. On December 

24, 2014, the trial court directed Resto to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 9, 

2015, Resto timely complied. On January 29, 2015, the trial court issued an 

opinion pursuant to Pa.R.A.P. 1925(a).

Resto raises two questions for our review:

1. Was the evidence sufficient to support convictions on the 

charges of rape of a child and statutory sexual assault?

2. Was the ten-year mandatory minimum sentence imposed by 

the trial judge illegal?

Brief for Resto at 3. 

In his first issue, Resto challenges the sufficiency of the evidence 

offered by the Commonwealth to prove him guilty of rape of a child and 

statutory sexual assault. A claim challenging the sufficiency of the evidence 

presents a question of law. Commonwealth v. Widmer, 744 A.2d 745, 

751 (Pa. 2000). We must determine “whether the evidence is sufficient to 

prove every element of the crime beyond a reasonable doubt.” 

Commonwealth v. Hughes, 555 A.2d 1264, 1267 (Pa. 1989). We “must 

view evidence in the light most favorable to the Commonwealth as the 

verdict winner, and accept as true all evidence and all reasonable inferences 
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therefrom upon which, if believed, the fact finder properly could have based 

its verdict.” Id. 

Our Supreme Court also has instructed: 

[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence. Any doubts 

regarding a defendant’s guilt may be resolved by the fact-finder 

unless the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the combined 

circumstances. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually received 

must be considered. Finally, the trier of fact while passing upon 

the credibility of witnesses and the weight of the evidence 

produced, is free to believe all, part or none of the evidence. 

Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007).

Of all of the charges for which he was convicted, Resto challenges only 

the sufficiency of the evidence to support his convictions for rape of a child 

and statutory sexual assault. “A person commits the offense of rape of a 

child, a felony of the first degree, when the person engages in sexual 

intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S. 

§ 3121(c). “[A] person commits [statutory sexual assault,] a felony of the 

second degree[,] when that person engages in sexual intercourse with a 

complainant to whom the person is not married who is under the age of 16 

years and that person . . . eight years older but less than 11 years older 

than the complainant.” 18 Pa.C.S. § 3122.1(a)(2). Both offenses require 

proof of sexual intercourse, which is defined by statute as follows: “[i]n 

addition to its ordinary meaning, [sexual intercourse] includes intercourse 

per os or per anus, with some penetration however slight; emission is not 
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required.” 18 Pa.C.S. § 3101. Resto challenges the sexual intercourse 

element of each offense, maintaining that the Commonwealth failed to 

adduce sufficient evidence that sexual intercourse actually occurred between 

him and KL because there was no evidence that a rape kit was performed on 

KL. Resto “claims that absent a rape kit having been performed, no 

conviction for an offense requiring proof of sexual intercourse is based on 

sufficient evidence.” Brief for Resto at 7.

Resto offers no legal authority in support of his claim that a rape kit is 

a prerequisite to proof beyond a reasonable doubt that sexual intercourse 

occurred. Unsurprisingly, Resto offers no such authority exists, and that is 

because no such authority exists. To satisfy each crime, the Commonwealth 

need only prove, through direct or circumstantial evidence, that sexual 

intercourse occurred. A rape kit is but one of many ways in which the 

Commonwealth may satisfy its burden. It certainly is not the only way, or 

the required way. Here, the Commonwealth introduced direct testimony 

from KL that she and Resto engaged in vaginal intercourse. DNA evidence 

corroborated KL’s testimony beyond a reasonable doubt. Viewed in the light 

most favorable to the Commonwealth, the evidence overwhelmingly 

established the sexual intercourse element of both rape of a child and 

statutory sexual assault. No relief is due.

In his second issue, Resto argues that the imposition of the ten-year 

mandatory minimum sentence by the trial court was illegal. We agree. 
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Resto was sentenced pursuant to 42 Pa.C.S. § 9718(a)(3), which provides 

as follows:

(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. § 3121(c) and (d)--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.

42 Pa.C.S. § 9718(a)(3). 

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

States Supreme Court held that “facts that increase mandatory minimum 

sentences must be submitted to the jury” and must be found beyond a 

reasonable doubt. Alleyne, supra at 2163. In Commonwealth v. Miller, 

102 A.3d 988 (Pa. Super. 2014), we presented the relevant portion of the 

Alleyne Court’s rationale as follows:

Alleyne is an extension of the Supreme Court’s line of cases 

beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000). 

In Alleyne, the Court overruled Harris v. United States, 536 
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U.S. 545 (2002), in which the Court had reached the opposite 

conclusion, explaining that there is no constitutional distinction 

between judicial fact[-]finding which raises the minimum 

sentence and that which raises the maximum sentence.

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.

Alleyne, [133 S.Ct.] at 2160-61 (internal quotation marks and 

citations omitted).

Miller, 102 A.3d at 994-95 (citations modified). 

In light of the constitutional pronouncement in Alleyne, we have 

systematically been declaring unconstitutional Pennsylvania’s mandatory 

minimum sentencing statutes that permit a trial court, rather than a jury, to 
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make the critical factual findings for sentencing. See Commonwealth v. 

Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (holding 42 Pa.C.S. § 9712.1, 

which imposes a mandatory minimum sentence for possessing a firearm in 

close proximity to narcotics, unconstitutional); Commonwealth v. 

Valentine, 101 A.3d 801 (Pa. Super. 2014) (holding 42 Pa.C.S. § 9712, 

pertaining to mandatory minimum sentencing provisions associated with the 

commission of certain crimes with a firearm, unconstitutional); 

Commonwealth v. Cardwell, 105 A.3d 748, 751 (Pa. Super. 2014) 

(applying Alleyne and recognizing that the mandatory minimum sentences 

associated with the weight of narcotics possessed by a drug dealer pursuant 

to 18 Pa.C.S. § 7508 are unconstitutional). 

Similarly, in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 

2014), we considered the constitutionality of § 9718, the statute at issue in 

the case sub judice. In Wolfe, the appellant had been sentenced to a 

mandatory minimum sentence of ten to twenty years pursuant to 42 Pa.C.S. 

§ 9718(a)(1), for his conviction of involuntary deviate sexual intercourse 

with a person less than sixteen years-old. Id. at 802. The subsection 

implicated the same “proof at sentencing” provision as set forth above. 

Citing Alleyne, Newman, and Valentine, we held that section 9718 was 

facially unconstitutional because the elements of the “proof at sentencing” 

provision required a trial judge, not a jury, to make factual findings by a 

preponderance of the evidence, and not beyond a reasonable doubt. Wolfe, 

106 at 805. 
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Because subsection (a)(3), which was applied in the instant case, 

implicates the same “proof at sentencing” provision as in Wolfe, its 

application herein was unconstitutional, and illegal. Both the trial court and 

the Commonwealth maintain that the “proof at sentencing” provision can be 

severed from the statute, and that, because the jury found all of the 

elements of rape of a child beyond a reasonable doubt, the mandatory 

minimum sentence can still be applied constitutionally. However, most 

recently, our Supreme Court in Commonwealth v. Hopkins, 98 MAP 2013, 

slip op. (Pa. June 15, 2015), considered the severability of the “proof at 

sentencing” provision of the drug delivery in a school zone mandatory 

minimum sentence that is set forth at 18 Pa.C.S. § 6317(a). In Hopkins, 

the Commonwealth conceded that the mandatory sentencing provision was 

unconstitutional pursuant to Alleyne, but contended that the “proof of 

sentencing” provision was severable. Our Supreme Court rejected that 

argument, and held that the provision could not be severed without the 

court usurping the role of the legislature and recrafting the relevant portions 

of section 6317. Id. at 23.

Notably, the language of the “proof at sentencing” provision that the 

Court held to be non-severable in Hopkins is nearly identical to the “proof 

at sentencing” provision contained in 42 Pa.C.S. § 9718. On the authority of 

Hopkins, we reject the trial court’s and Commonwealth’s position that the 

mandatory minimum sentence still can be applied without consideration of 

the “proof at sentencing” provision. As the Hopkins Court held, the 
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provisions are not severable, and it is up to the General Assembly to reenact the mandatory provision at issue here in a constitutional manner, if it 

elects to do so. 

Presently, Resto was sentenced pursuant to an unconstitutional 

statute. He must be resentenced. Consequently, we vacate the judgment of 

sentence, and we remand this case for resentencing without consideration of 

the mandatory minimum sentencing provision at issue in this case.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015