J-S32016-16
2016 PA Super 105
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARKEITH AIKENS
Appellant No. 224 EDA 2015
Appeal from the Judgment of Sentence August 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003098-2013
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
OPINION BY MUNDY, J.: FILED MAY 20, 2016
Appellant, Markeith Aikens, appeals from the August 7, 2014,
aggregate judgment of sentence of 7 to 15 years’ imprisonment, imposed
after he was found guilty of one count each of unlawful contact with a minor
and corruption of minors.1 After careful review, we affirm.
We summarize the procedural history of this case as follows. On July
22, 2013, the Commonwealth filed an information, charging Appellant with
the above-mentioned offenses, as well as one count each of involuntary
deviate sexual intercourse (IDSI), statutory sexual assault, indecent assault,
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6318(a)(1) and 6301(a)(1)(i), respectively.
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and indecent exposure.2 On April 23, 2014, Appellant proceeded to a jury
trial, at the conclusion of which the jury found Appellant guilty of one count
each of unlawful contact with a minor and corruption of minors. Important
to this appeal, the jury acquitted Appellant of IDSI, and the remaining
charges were nolle prossed. On August 7, 2014, the trial court imposed an
aggregate sentence of 7 to 15 years’ imprisonment. Additionally, relevant to
this appeal, the trial court graded Appellant’s unlawful contact with a minor
charge as a first-degree felony and imposed a sentence of 6 to 12 years’
imprisonment. The trial court further imposed a consecutive one to three
year sentence for corruption of minors. On August 17, 2014, Appellant filed
a timely post-sentence motion, which the trial court denied on December 16,
2014. On January 9, 2015, Appellant filed a timely notice of appeal.3
On appeal, Appellant raises one issue for our review.
Did the [trial] court illegally sentence Appellant on
unlawful contact with a minor graded as an F-1 when
it should have been graded as an F-3?
Appellant’s Brief at 3.
Appellant’s only argument on appeal is that the trial court erroneously
graded his unlawful contact with a minor conviction as a first-degree felony,
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2
18 Pa.C.S.A. §§ 3123(a)(7), 3122.1, 3126(a)(7), and 3127(a),
respectively.
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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when it should have been graded as a third-degree felony. Appellant’s Brief
at 7. We note that the proper grading of an offense pertains to the legality
of the sentence. Commonwealth v. Coto, 932 A.2d 933, 935 (Pa. Super.
2007). Our review, therefore, is guided by the following well-settled
standard.
“A challenge to the legality of a sentence … may be
entertained as long as the reviewing court has
jurisdiction.” Commonwealth v. Borovichka, 18
A.3d 1242, 1254 n.8 (Pa. Super. 2011) (citation
omitted). It is also well-established that “[i]f no
statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
correction.” Commonwealth v. Rivera, 95 A.3d
913, 915 (Pa. Super. 2014) (citation omitted). “An
illegal sentence must be vacated.” Id. “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.”
Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.
Super. 2014) (citations omitted).
Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014), appeal
denied, 121 A.3d 494 (Pa. 2015).
Instantly, the unlawful contact with a minor statute provides in
relevant part, as follows.
§ 6318. Unlawful contact with minor
(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:
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(1) Any of the offenses enumerated in Chapter
31 (relating to sexual offenses).
(2) Open lewdness as defined in section 5901
(relating to open lewdness).
(3) Prostitution as defined in section 5902
(relating to prostitution and related offenses).
(4) Obscene and other sexual materials and
performances as defined in section 5903
(relating to obscene and other sexual materials
and performances).
(5) Sexual abuse of children as defined in
section 6312 (relating to sexual abuse of
children).
(6) Sexual exploitation of children as defined in
section 6320 (relating to sexual exploitation of
children).
(b) Grading.--A violation of subsection (a) is:
(1) an offense of the same grade and degree
as the most serious underlying offense in
subsection (a) for which the defendant
contacted the minor; or
(2) a felony of the third degree;
whichever is greater.
18 Pa.C.S.A. § 6318. In Appellant’s view, his case is identical to our
Supreme Court’s decision in Commonwealth v. Reed, 9 A.3d 1138 (Pa.
2010).
In Reed, the defendant was charged with attempted unlawful contact
with a minor, as well as “criminal attempt of the following crimes: rape of a
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child and [IDSI], which are first-degree felony offenses, statutory sexual
assault, a second-degree felony, indecent assault, a second-degree
misdemeanor, and corruption of a minor, a first-degree misdemeanor.” Id.
at 1141. The jury acquitted Reed of all charges except attempted unlawful
contact with a minor. Id. The trial court graded the attempted unlawful
contact with a minor as a first-degree felony. Id. Reed appealed, arguing
that the grading was improper in light of the jury’s acquittals on the other
charged offenses. Our Supreme Court agreed with Reed that the gradation
was erroneous.
Our Supreme Court stated that a conviction of a Chapter 31 offense is
not statutorily required, because it is not a predicate offense of unlawful
contact with a minor. Id. at 1146. However, instead, our Supreme Court
tied the gradation of unlawful contact with a minor to how the
Commonwealth charges and presents its case to the jury.
Pursuant to the express statutory language, a
violation of 18 Pa.C.S. § 6318(a) is the same grade
as the most serious underlying offense for which the
defendant attempted contact with the minor, or a
first-degree misdemeanor, whichever is greater. In
this case, the Commonwealth chose to charge
Appellee separately, inter alia, with the Chapter 31
offenses of attempted rape of a child, IDSI,
statutory sexual assault, and indecent assault.
Following a three-day trial, the jury found Appellee
not guilty of those offenses. It is here that
[Commonwealth v. Magliocco, 883 A.2d 479 (Pa.
2005)] can provide limited guidance. Although that
case involved predicate offenses and the instant case
does not, both cases share one common feature: to
secure a conviction of the offense under review, i.e.,
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terroristic threats in Magliocco and the Chapter 31
offenses herein, the Commonwealth was not
required to charge the defendant with the other
crimes. The operative reality, however, is that in the
case sub judice, the Commonwealth did charge those
offenses, and the jury acquitted Appellee of those
crimes. As we noted in Magliocco II, acquittals
“have been accorded a special weight in the law.”
Id. at 492 (citing United States v. DiFrancesco,
449 U.S. 117, 129–30 (1980), and Commonwealth
v. D.M., 695 A.2d 770 (Pa. 1997)).
Id. at 1146-1147 (parallel citations omitted) (emphasis added). As a result
of the jury’s acquittals, our Supreme Court concluded the first-degree felony
grading was legally precluded.
Thus, while it was not incumbent upon the
Commonwealth to secure a conviction of an
enumerated offense in 18 Pa.C.S. § 6318(a), it chose
to do so, and Appellee’s acquittal cannot be ignored
when applying the appropriate grading under
subsection 6318(b). In this scenario, where Appellee
was acquitted of all other charged offenses, the
sentencing court had to guess which offense
Appellee sought to commit when he contacted
Taylorgirl1992. We cannot countenance that result.
“[O]ur rules of statutory construction [forbid] absurd
results.” Commonwealth v. Sloan, 907 A.2d 460,
467 (2006).
As we reiterated above, penal provisions of a
statute must be strictly construed. 1 Pa.C.S.
§ 1928(b)(1). Commonwealth v. Hoke, 962 A.2d
664, 667 (Pa. 2009) (“where ambiguity exists in the
language of a penal statute, such language should be
interpreted in the light most favorable to the
accused.... [A] court may not achieve an acceptable
construction of a penal statute by reading into the
statute terms that broaden its scope.”) (quoting
Commonwealth v. Booth, 766 A.2d 843, 846 (Pa.
2001); Commonwealth v. Dickson, 918 A.2d 95,
100 (Pa. 2007)) (“we must construe all penal
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provisions strictly in favor of defendants’ liberty
interests”). Applying these precepts to 18 Pa.C.S.
§ 6318(b), and in light of the special weight afforded
acquittals, we find that the default grading must
apply because the fact-finder specifically determined
that Appellee did not commit the separately charged
Chapter 31 offenses.
Id. at 1147-1148.
Turning to the case sub judice, it is not disputed that the
Commonwealth chose to charge Appellant with the underlying Chapter 31
offense of IDSI, and the jury acquitted Appellant of that offense. However,
in Reed, the Commonwealth specifically charged Reed with attempt to
commit IDSI, not just the underlying crime of IDSI. Criminal attempt is
closer to the element contained in Section 6318(a) “for the purpose of
engaging in” than the substantive offense itself. 18 Pa.C.S.A. § 6318(a).
Therefore, the jury’s acquittal on the substantive offense of IDSI is less
“relevant,” in the words of our Supreme Court, than the jury’s criminal
attempt acquittals in Reed. Reed, supra at 1146.
Further, as the Commonwealth and the trial court observe, in this case
the jury was specifically instructed that in order to find Appellant guilty of
unlawful contact with a minor, it had to conclude that Appellant attempted to
contact the victim for the purpose of committing IDSI.
[Appellant] has been charged with unlawful contact
with a minor. To find [Appellant] guilty of this
offense, you must find that each of the following
elements has been proven beyond a reasonable
doubt: First, that [Appellant] was intentionally in
contact for the purpose of engaging in an unlawful
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act -- and in this case, that unlawful act is alleged
to be [IDSI], the crime that we just discussed, that
I just defined for you ….
N.T., 4/24/14, at 95 (emphasis added).
As the trial court’s charge makes clear, the jury was instructed that
Appellant was only accused of contacting the minor for one specific Chapter
31 offense, IDSI. Id. Thus, when the jury returned a verdict of guilty on
the unlawful contact with a minor offense, it must have concluded, as a
matter of fact, that Appellant contacted the victim for the purpose of
engaging in IDSI. As a result, the jury’s finding in this regard satisfies the
unlawful contact with a minor statute’s grading requirement, because IDSI is
only graded as a first-degree felony. See generally 18 Pa.C.S.A.
§ 3123(a). Therefore, the jury did find that a first-degree felony was “the
most serious underlying offense ... for which the defendant contacted the
minor[.]” Id. § 6318(b)(1). In our view, Reed does not preclude the
higher grading in this case, as the trial court’s sentence was consistent with
the jury’s verdict, based on how it was instructed by the trial court. 4 As a
result, Appellant’s issue on appeal fails. See Cardwell, supra.
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4
We also note that the Commonwealth’s position, linking the grading of the
offense to the jury instructions, is fully consistent with Appellant’s Sixth
Amendment right to a jury trial. First, it is axiomatic that “[w]e presume
that the jury follow[s] the [trial] court’s instructions.” Commonwealth v.
Natividad, 938 A.2d 310, 326 n.7 (Pa. 2007) (citation omitted). Second,
since the fact that triggered the higher grading aggravated the maximum
penalty to which Appellant was exposed, from 7 to 20 years, said fact was
(Footnote Continued Next Page)
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Based on the foregoing, we conclude the trial court correctly graded
the unlawful contact with a minor charge as a first-degree felony.
Accordingly, the trial court’s August 7, 2014 judgment of sentence is
affirmed.
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
required to be found by the jury beyond a reasonable doubt. See generally
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (stating that the Sixth
Amendment’s Jury Trial Clause requires “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt[]”).
Therefore, it would appear that the Commonwealth’s application of
Section 6318 in this case guards against a constitutional problem, while also
ensuring that the jury’s verdict is fully honored. See generally 1 Pa.C.S.A.
§ 1922(3) (stating, “[t]hat the General Assembly does not intend to violate
the Constitution of the United States or of this Commonwealth[]”).
Therefore, at worst, even if the Commonwealth had charged multiple
Chapter 31 offenses and “the sentencing court had to guess which offense
[the defendant] sought to commit when” he or she contacted the minor,
Apprendi would require the default grading to be applied anyway, since the
trial court cannot find the fact for the jury. Reed, supra at 1147; see also
id. at 1148 (Saylor, J., concurring) (stating, “[i]n the absence of a jury
finding regarding which prohibited activity the defendant intended to engage
in for purposes of an unlawful contact with a minor conviction, application of
anything other than the default grading provision raises constitutional
concerns under Apprendi[]”).
Conversely, Appellant’s application of Reed to this case would lead to
a strange result. We would be faced with a case in which Appellant’s Sixth
Amendment rights were not violated, because the jury did find the fact
required to aggravate the maximum sentence, but his sentence is still illegal
regardless of the jury’s finding, because of how the Commonwealth chose
to charge the case. See generally 1 Pa.C.S.A. § 1921(1) (stating, that we
presume “[t]hat the General Assembly does not intend a result that is
absurd, impossible of execution or unreasonable[]”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2016
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