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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
:
JOSE LUIS FLORES-MEDINA :
:
Appellant : No. 1091 MDA 2016
Appeal from the Judgment of Sentence June 6, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003446-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 28, 2017
Appellant, Jose Luis Flores-Medina, appeals from the judgment of
sentence entered in the Lancaster County Court of Common Pleas, following
his jury trial convictions for rape, unlawful contact with a minor, and
corruption of minors.1 We affirm Appellant’s convictions but vacate and
remand for resentencing on all counts.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises two issues for our review:
____________________________________________
1
18 Pa.C.S.A. §§ 3121(a)(1); 6318(a)(1); 6301(a)(1)(ii), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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WAS THE EVIDENCE PRESENTED BY THE COMMONWEALTH
INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT
THAT [APPELLANT] COMMITTED THE OFFENSE OF
UNLAWFUL CONTACT WITH A MINOR, WHERE THE
EVIDENCE DID NOT ESTABLISH THAT [APPELLANT] WAS
INTENTIONALLY IN CONTACT WITH [VICTIM] FOR THE
PURPOSE OF ENGAGING IN AN ACTIVITY PROHIBITED
UNDER CHAPTER 31?
WERE THE EVIDENCE PRESENTED BY THE
COMMONWEALTH AND THE TRIAL COURT’S CHARGE TO
THE JURY INSUFFICIENT TO SUSTAIN [APPELLANT’S]
CONVICTION OF CORRUPTION OF MINORS, GRADED AS A
THIRD DEGREE FELONY, WHERE THERE WAS NO
EVIDENCE [APPELLANT] CORRUPTED THE MORALS OF A
MINOR BY ANY COURSE IN VIOLATION OF CHAPTER 31,
AND THE JURY WAS NOT INSTRUCTED THAT IT MUST
FIND THE “COURSE OF CONDUCT” ELEMENT NECESSARY
TO SUSTAIN THE CONVICTION AS A THIRD DEGREE
FELONY?
(Appellant’s Brief at 5).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Donald R.
Totaro, we conclude Appellant’s first issue merits no relief. As to Appellant’s
second issue, we agree with Appellant that relief is due. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed August 30, 2016, at 2-9) (finding:
(1) Victim testified that on April 11, 2015, she was sleeping at her aunt’s
house on air mattress in bedroom occupied by Appellant and Victim’s aunt;
Appellant placed his hand over Victim’s mouth and inserted his penis inside
her vagina; on following morning, Victim reported incident to her mother
and grandmother; Victim went to hospital for medical examination; Victim
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reported incident to nurse examiner during examination; examination of
Victim revealed tenderness and injuries, laceration of skin at bottom of
vagina, and abrasion between Victim’s vaginal wall and hymen, indicating
forceful intercourse; Victim made similar report of incident to program
supervisor at Lancaster County Children’s Alliance; Appellant provided buccal
swab to police, which was later sent for DNA analysis; sperm found on
Victim from sample collected at hospital matched Appellant’s DNA; Victim
was 17 years old at time of incident, and Appellant was 38 years old;
testimony established that Appellant put his hand over Victim’s mouth to
prevent her from speaking while he committed rape; from this evidence,
jury could reasonably infer Appellant engaged in type of contact and
communication, either verbal or physical, necessary to sustain Appellant’s
conviction for unlawful contact with minor; (2) Appellant assaulted Victim on
one occasion; corruption of minors statute at 18 Pa.C.S.A. § 6301(a)(1)(ii)
requires “course of conduct” of sexual offenses which corrupts or tends to
corrupt morals of minor; evidence was insufficient to sustain corruption of
minors conviction graded as third-degree felony; but, evidence was sufficient
to support conviction for corruption of minors graded as first-degree
misdemeanor under Section 6301(a)(1)(i)).2 Nevertheless, for the following
reasons, we disagree with the trial court to the extent it states resentencing
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2
The Commonwealth agrees the evidence was insufficient to sustain a
conviction for corruption of minors graded as a third-degree felony.
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is unnecessary because the corruption of minors’ conviction merged with the
rape by forcible compulsion conviction for sentencing purposes.
Whether crimes merge for sentencing purposes implicates the legality
of the sentence, which this Court can raise sua sponte. Commonwealth v.
Tanner, 61 A.3d 1043, 1046 (Pa.Super. 2013). Therefore, our standard of
review is de novo and our scope of review is plenary. Id. Merger of
sentences is governed generally by Section 9765 of the Sentencing Code,
which provides:
§ 9765. Merger of sentences
No 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. Where crimes
merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765. “[T]he language of the legislature is clear. The only
way two crimes merge for sentencing is if all elements of the lesser offense
are included within the greater offense.” Commonwealth v. Coppedge,
984 A.2d 562, 564 (Pa.Super. 2009) (stating cases decided before effective
date of Section 9765 are not instructive in merger analysis; relevant
question in merger analysis now is whether person can commit one crime
without also committing other crime, regardless of whether facts of
particular case comprise both crimes; if elements of crimes differ, i.e., if one
offense can be committed without committing other offense, crimes do not
merge under legislative mandate of Section 9765) (emphasis in original).
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The Crimes Code defines the offenses of rape and corruption of
minors, in relevant part, as follows:
§ 3121. Rape
(a) Offense defined.—A person commits a felony of
the first degree when the person engages in sexual
intercourse with a complainant:
(1) By forcible compulsion.
* * *
18 Pa.C.S.A. § 3121(a)(1).
§ 6301. Corruption of minors
(a) Offense defined.—
(1)(i) Except as provided in subparagraph (ii), whoever,
being of the age of 18 years and upwards, by any act
corrupts or tends to corrupt the morals of any minor less
than 18 years of age, or who aids, abets, entices or
encourages any such minor in the commission of any
crime, or who knowingly assists or encourages such minor
in violating his or her parole or any order of court, commits
a misdemeanor of the first degree.
(ii) Whoever, being of the age of 18 years and upwards,
by any course of conduct in violation of Chapter 31
(relating to sexual offenses) corrupts or tends to corrupt
the morals of any minor less than 18 years of age, or who
aids, abets, entices or encourages any such minor in the
commission of an offense under Chapter 31 commits a
felony of the third degree.
* * *
18 Pa.C.S.A. § 6301(a)(1)(i), (ii).
Instantly, the court merged for sentencing purposes Appellant’s
conviction for corruption of minors graded as a third-degree felony with his
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rape by forcible compulsion conviction graded as a first-degree felony. A
conviction for rape by forcible compulsion requires a person to engage in
sexual intercourse with a complainant by forcible compulsion. See 18
Pa.C.S.A. § 3121(a)(1). A conviction for corruption of minors as a third-
degree felony requires a person of 18 years and upwards to corrupt or
tend to corrupt the morals of any minor less than 18 years of age by any
course of conduct in violation of Chapter 31 (relating to sexual offenses)
or aid, abet, entice or encourage a minor in the commission of an offense
under Chapter 31. See 18 Pa.C.S.A. § 6301(a)(1)(ii). The plain language of
the respective statutes demonstrates sentencing merger of these crimes is
inappropriate, where corruption of minors under this subsection has both an
age as well as a “course of conduct” requirement; rape does not. Therefore,
all of the statutory elements of corruption of minors under Section
6301(a)(1)(ii) are not included in the statutory elements of rape by forcible
compulsion. See 42 Pa.C.S.A. § 9765. In other words, a person can
commit rape by forcible compulsion without also committing corruption of
minors under Section 6301(a)(1)(ii) and vice versa. See Coppedge,
supra. Thus, the court erred when it merged the corruption of minors’
conviction graded as a third-degree felony with Appellant’s conviction for
rape by forcible compulsion.
A conviction for corruption of minors as a first-degree misdemeanor
requires a person of 18 years and upwards, by any act, to corrupt or tend
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to corrupt the morals of any minor less than 18 years of age; or aid,
abet, entice or encourage a minor in the commission of any crime; or
knowingly assist or encourage a minor less than 18 years of age in
violating his or her parole or any order of court. See 18 Pa.C.S.A. §
6301(a)(1)(i). Corruption of minors under this subsection has an age
requirement; rape does not. Therefore, all of the statutory elements of
corruption of minors under Section 6301(a)(1)(i) are not included in the
statutory elements of rape by forcible compulsion. See 42 Pa.C.S.A. §
9765. The fact that the rape conviction in this case involved a victim of less
than 18 years of age is irrelevant to the merger analysis because, in general,
a person can commit rape by forcible compulsion without also committing
corruption of minors under Section 6301(a)(1)(i), and vice versa. See
Coppedge, supra. Thus, Appellant’s corruption of minors’ conviction, even
when graded as a first-degree misdemeanor, similarly will not merge with
Appellant’s conviction for rape by forcible compulsion.
Based on the foregoing, we vacate the entire judgment of sentence
and remand for resentencing on all counts. See Commonwealth v. Hicks,
151 A.3d 216 (Pa.Super. 2016) (explaining where trial court errs in its
sentence in multi-count case, we will vacate entire sentence to allow trial
court to re-structure its sentencing plan). Upon remand, the court must
regrade Appellant’s conviction for corruption of minors as a first-degree
misdemeanor, because the Commonwealth did not prove the “course of
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conduct” required to grade the offense as a third-degree felony. Further,
when properly graded as a first-degree misdemeanor, Appellant’s corruption
of minors’ conviction shall not merge for resentencing purposes with his
conviction for rape by forcible compulsion. Accordingly, we affirm
Appellant’s convictions but vacate the judgment of sentence and remand for
resentencing on all counts.
Judgment of sentence vacated; case remanded with instructions.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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