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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTHONY D. DATTILO, : No. 1195 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, December 20, 2013,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0008338-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 11, 2015
Appellant challenges the judgment of sentence entered following his
plea of guilty to numerous sex-related offenses. Finding no error, we affirm.
The following factual summary was offered by the Commonwealth
during appellant’s guilty plea:
On Wednesday, May 2, 2012, at approximately
12:26 a.m., Bensalem Township police officers were
dispatched by Bucks County radio to the Lincoln
Motel, 2277 Lincoln Highway, Trevose, Bucks
County. Officers were dispatched for a possible
abduction of a 14-year-old female.
Family members of the 14-year-old female had
received text messages from the 14-year-old female,
whose initials are RT, stating that she was being
taken to a motel, the Lincoln Motel.
At that point officers responded to the Lincoln
Motel and they began to conduct knock and talks on
all the occupied rooms on the second floor of the
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Lincoln Motel. Bensalem Police Officer Jason Hill
knocked on the door of room number 232 and he
heard a male voice respond: Who is it?
Officer Hill advised that it was the police and to
please come to the door. [Appellant] answered the
door and identified himself as a Philadelphia police
officer, 2nd District.
Officer Hill asked [appellant] who was with
him, and at that point he opened the door and
pointed to two black females sitting on the bed. The
females were positively identified as RT, with a date
of birth of [1997], and her cousin. The females were
asked to exit the room and Officer Hill spoke to RT
alone in the hallway of the motel.
At that point, RT began to cry and told the
officers that she wanted to go home. She said that
he, meaning [appellant], touched her. Officer Hill
asked her where, and she said she was touched in
the breast and genital area.
Sergeant Andrew Aninsman and Detective
Mark Kelly interviewed the cousin at Bensalem
Township Police Department who stated that she
knows [appellant] and that she called him on
Tuesday, May 1.
She said that [appellant] was interested in
having sex with her and offered to pay her a
hundred dollars. She told [appellant] that she had
her 15-year-old cousin with her, and that [appellant]
told her he would also give her a hundred dollars for
sex.
She stated that she convinced RT to come with
her to the Lincoln Motel, and she and RT were picked
up there by [appellant] at her mother’s house in
Philadelphia and driven to the Lincoln Motel.
The cousin said that they rented a motel room
at the Lincoln Motel and they went into the room
with [appellant] and she said that she had sexual
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intercourse with [appellant] in the motel room while
RT sat in the room with them.
Thereafter, the Bucks County Children’s
Advocacy Center conducted a forensic interview of
RT, and she stated, also, that she had been at her
cousin’s house and that her cousin was talking about
having sex for a hundred dollars.
She said that they left the house and they
walked to the corner, and that’s where [appellant]
picked them up in his car. He then took them to the
Lincoln Motel.
She stated that after [appellant] had sex with
her cousin, he then sat across from her on the bed
while he was unclothed and at that point he started
to touch her, and he touched her breast area and he
also penetrated her vagina with his finger.
She said that he was doing that, she had
pushed his hand away, and at that point police
officers knocked on the door.
Notes of testimony, 6/17/13, at 21-25.
Appellant was charged with aggravated indecent assault without
consent, aggravated indecent assault with a person less than 16, unlawful
contact with a minor, criminal use of communication facility, corruption of
minors, promoting prostitution of minor -- transporting a minor, promoting
prostitution of minor -- lease prostitution place, promoting prostitution --
transporting prostitute in the Commonwealth, promoting prostitution --
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provide place for prostitution, patronizing prostitutes, indecent assault
without consent, and indecent assault of a person less than 16 years of age.1
On June 17, 2013, appellant pleaded guilty to all charges except
aggravated indecent assault without consent, which was nolle prossed. On
December 20, 2013, appellant was sentenced to four to ten years’
imprisonment for aggravated indecent assault with a person less than 16,
and a consecutive term of two to ten years’ imprisonment for unlawful
contact with a minor, for an aggregate term of six to twenty years’
imprisonment. Both offenses on which appellant was sentenced were
graded as second degree felonies carrying standard range sentences of 22 to
36 months’ imprisonment. Thus, appellant’s sentence for aggravated
indecent assault with a person less than 16 is in the aggravated range.2
This timely appeal followed.
On appeal, appellant challenges the discretionary aspects of his
sentence on the basis that he was sentenced in the aggravated range based
upon the following improper factors: 1) that he is being punished twice for
the victim’s minor status because it is the basis for both aggravated indecent
assault with a person less than 16 and unlawful contact with a minor; and
1
18 Pa.C.S.A. §§ 3125(a)(1), 3125(a)(8), 6318(a)(1), 7512(a),
6301(a)(1)(i), 5902(b.1)(6), 5902(b.1)(7), 5902(b)(6), 5902(b)(7),
5902(e), 3126(a)(1), and 3126(a)(8), respectively.
2
Appellant inaccurately states in his brief that both sentences were in the
aggravated range. (Appellant’s brief at 7.)
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2) that the court improperly enhanced his sentence because he is a police
officer.
A challenge to the discretionary aspects of a
sentence must be considered a petition for
permission to appeal, as the right to pursue such a
claim is not absolute. Two requirements must be
met before we will review this challenge on its
merits. First, an appellant must set forth in his brief
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of a sentence. Second, the appellant must
show that there is a substantial question that the
sentence imposed is not appropriate under the
Sentencing Code. The determination of whether a
particular issue raises a substantial question is to be
evaluated on a case-by-case basis. In order to
establish a substantial question, the appellant must
show actions by the trial court inconsistent with the
Sentencing Code or contrary to the fundamental
norms underlying the sentencing process.
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014),
quoting Commonwealth v. Bowen, 55 A.3d 1254, 1262-1263 (Pa.Super.
2012), appeal denied, 64 A.3d 630 (Pa. 2013).
This court has previously held that an allegation that the trial court
considered improper factors in imposing a sentence in the aggravated range
raises a substantial sentence. Commonwealth v. Stewart, 867 A.2d 589,
592 (Pa.Super. 2005). Therefore, we will review the merits of appellant’s
issues.
Appellant first complains that he is being improperly punished twice for
the same conduct because both aggravated indecent assault with a person
less than 16 and unlawful contact with a minor have as their central element
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the minor status of the victim.3 While not employing the exact language,
appellant appears to be suggesting that one of these crimes is a lesser
included offense in the other and that their sentences should have merged.
A lesser-included offense is a crime having elements
of which are a necessary subcomponent of elements
of another crime, the greater offense. The elements
in the lesser-included offense are all contained in the
greater offense; however, the greater offense
contains one or more elements not contained in the
lesser-included offense.
Commonwealth v. Kelly, 102 A.3d 1025, 1032 (Pa.Super. 2014), quoting
Commonwealth v. Reese, 725 A.2d 190, 191 (Pa.Super. 1999), appeal
denied, 740 A.2d 1146 (Pa. 1999). Both statute and case law require that
in regard to a single criminal act, a lesser included offense merges with the
greater offense for sentencing. See 42 Pa.C.S.A. § 9765; Commonwealth
v. Nero, 58 A.3d 802, 806-807 (Pa.Super. 2012), appeal denied, 72 A.3d
602 (Pa. 2013).
Aggravated indecent assault is defined as follows:
(a) Offenses defined.--Except as provided in
sections 3121 (relating to rape), 3122.1
(relating to statutory sexual assault), 3123
(relating to involuntary deviate sexual
intercourse) and 3124.1 (relating to sexual
assault), a person who engages in penetration,
however slight, of the genitals or anus of a
complainant with a part of the person’s body
3
We note that in both appellant’s brief and in his concise statement of
matters complained of on appeal, he incorrectly refers to his corruption of
minors conviction as being the conviction for which he was sentenced to two
to ten years’ imprisonment. This sentence was actually imposed for the
unlawful contact with minor conviction.
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for any purpose other than good faith medical,
hygienic or law enforcement procedures
commits aggravated indecent assault if:
(8) the complainant is less than
16 years of age and the person is
four or more years older than the
complainant and the complainant
and the person are not married to
each other.
18 Pa.C.S.A. § 3125(a)(8).
Unlawful contact with a minor is defined as follows:
(a) Offense defined.--A person commits an
offense if he is intentionally in contact with a
minor, or a law enforcement officer acting in
the performance of his duties who has
assumed the identity of a minor, for the
purpose of engaging in an activity prohibited
under any of the following, and either the
person initiating the contact or the person
being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in
Chapter 31 (relating to sexual
offenses).
18 Pa.C.S.A. § 6318(a)(1).
This court has previously ruled that unlawful contact with a minor does
not merge with indecent assault because unlawful contact requires a
communication with the victim, which indecent assault does not, while
indecent assault requires an actual physical touching which unlawful contact
does not. Commonwealth v. Evans, 901 A.2d 528, 537 (Pa.Super. 2006),
appeal denied, 909 A.2d 303 (Pa. 2006). The Evans court also explained
that unlawful contact does not require that the act that is the predicate of
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the communication be accomplished. Id. Similarly, in this case, unlawful
contact requires a communication that aggravated indecent assault with a
minor does not, while aggravated indecent assault with a minor requires an
actual physical penetration of the genitals or anus which unlawful contact
does not. The crimes do not merge and separate sentences were proper.
Moreover, the fact that the two offenses do share one similar element, the
victim being under 16 or being a minor, does not bar separate sentences.
There is no error here.
Appellant next complains that the trial court improperly imposed a
greater punishment because appellant is a police officer. Appellant asserts
that his job was irrelevant because it was unrelated to the criminal conduct.
Appellant notes that the victim was not aware that appellant was a police
officer at the time, suggesting that this factor did not pose a coercive effect.
At sentencing, the Commonwealth stated that the child had learned
that appellant was a police officer, that she had been brought up to trust
police officers, and that she now had difficulty with that trust. (Notes of
testimony, 12/20/13 at 6-7.) The court later noted that appellant had also
severely damaged the public trust, questioning whether a parent can rely
upon a police officer with their child, or whether a woman should roll down
her car window when stopped at night. (Id. at 42-43.) Finally, in its
opinion, the trial court noted that when police knocked on appellant’s motel
room door, appellant answered and informed the police that he was a
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Philadelphia police officer. (Trial court opinion, 5/30/14 at 7.) The court
interpreted this as an effort by appellant to use his police status to avoid
further investigation. We find that all of these factors were properly
considered by the court and justified an enhanced sentence based upon
appellant’s status as a police officer.
Accordingly, having found no merit in the issues raised on appeal, we
will affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2015
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