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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAWN A. SEIF, SR. :
:
Appellant : No. 943 WDA 2018
Appeal from the Judgment of Sentence Entered May 21, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010893-2017
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 10, 2020
Appellant Shawn A. Seif, Sr. appeals from the judgment of sentence
imposed after he pled guilty to one count each of aggravated assault,
endangering welfare of children (EWOC), unlawful restraint—serious bodily
injury, simple assault, indecent assault—forcible compulsion, strangulation,
and two counts of aggravated indecent assault without consent. 1 Appellant
argues that his sentence is illegal because (1) the trial court should have
merged his sentences for unlawful restraint and strangulation; (2) the trial
court failed to merge his convictions for indecent assault; and (3) the trial
court failed to make a statutorily required determination of his eligibility for
the Recidivism Risk Reduction Incentive2 (RRRI) program. Appellant also
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118 Pa.C.S. §§ 2702(a)(1), 4304(a)(1), 2902 (a)(1), 2701(a)(1), 3126(a)(2),
2718(a)(1), and 3125(a)(1), respectively.
2 61 Pa.C.S. §§ 4501-4512.
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challenges the conditions of his probation and the discretionary aspects of his
sentence. For the reasons that follow, we affirm Appellant’s convictions, but
vacate the judgment of sentence and remand the matter for resentencing
consistent with this memorandum.
The relevant facts and procedural history of this appeal are as follows.
On August 10, 2017, the Commonwealth filed a criminal complaint alleging
that Appellant assaulted his former romantic partner, Monique Dalton (the
complainant), and her two minor children (Juvenile 1 and Juvenile 2) at her
home. See Crim. Compl., 8/10/17. According to the affidavit of probable
cause, Juvenile 1 and Juvenile 2 reported that they were in their bedroom with
the complainant. Aff. of Probable Cause, 8/10/17. Appellant entered their
bedroom and demanded that the complainant come with him to the master
bedroom. Id. When the complainant resisted, Appellant “became very angry
and forcibly pulled [the complainant] out of the bedroom.” Id. Appellant then
shoved Juvenile 1 into a couch, causing him to suffer a “bloody nose and
busted lip.” Id. Appellant also pushed Juvenile 2 into a wall. Id. Juvenile 1
and Juvenile 2 left the house to call for help. Id.
When the police arrived, they surrounded the house and ordered
Appellant and the complainant to come outside, but neither did. Id. The
officers then heard a woman screaming for help from an upstairs room. Id.
The officers entered the house and went upstairs. Id. The door to the master
bedroom was opened slightly and when the officers attempted to open it, they
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saw Appellant inside the bedroom “partially blocking the door by laying in front
of it.” Id.
The officers saw the complainant in the corner of a bedroom. Id. The
complainant was covered in blood, her face was swollen, and “[h]er underwear
was partially down to her knees with her genital region showing.” Id. She
told the officers that Appellant sexually assaulted her. Id.
Based on those allegations, the Commonwealth initially charged
Appellant with aggravated assault (as to the complainant), sexual assault3 (as
to the complainant), unlawful restraint (as to the complainant), simple assault
(as to Juvenile 1 and Juvenile 2), and EWOC (as to Juvenile 1 and Juvenile 2).
At the preliminary hearing on November 17, 2017, the Commonwealth
withdrew the two sexual assault charges and amended the complaint to
include strangulation and indecent assault. The complainant then testified at
the hearing. The complainant stated that she was on the bed in the master
bedroom when Appellant approached her and attacked her. According to the
complainant, Appellant sat on top of her and repeatedly punched her in the
face. Juvenile 1 and Juvenile 2 attempted to intervene, but Appellant pushed
them from the doorway of the master bedroom back into the hallway. One of
the juveniles attempted to re-enter the master bedroom, but the complainant
told him to leave. The complainant testified that once the juveniles left the
room, Appellant continued to punch her and then “put both of his hands
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3 18 Pa.C.S. § 3124.1.
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around her neck to strangle . . . or choke [her].” N.T. Prelim. Hr’g, 11/17/17,
at 7. She stated that she had difficulty breathing. Appellant eventually
stopped choking her and resumed punching her.
The complainant testified that “at some point [Appellant] stuck his
fingers in my vagina and stuck his fingers inside of me anally.” Id. at 8. The
complainant explained that although she tried to escape from Appellant
several times, she was unable to do so because he was punching her and
holding her down. She stated that the attack ended when the police arrived.
At the conclusion of the preliminary hearing, the municipal court
dismissed the simple assault and EWOC charges as to Juvenile 2, but held the
remaining charges for court. That same day, the Commonwealth filed a
criminal information charging Appellant with two counts of aggravated
indecent assault (as to complainant), plus one count each of aggravated
assault—serious bodily injury (as to complainant), EWOC (as to Juvenile 1),
unlawful restraint—serious bodily injury (as to complainant), simple assault
(as to Juvenile 1), indecent assault (as to complainant), and strangulation—
applying pressure to throat or neck (as to complainant).
On February 27, 2018, Appellant entered an open guilty plea to all
charges. During the trial court’s colloquy, the following exchange occurred:
THE COURT [to Appellant]: Now at this point . . . you will be
entitled to have [the Commonwealth] summarize the case against
you, talk about all the things that the witnesses would say, talk
about everything else in this case or if you want to you can waive
that recitation—
[Appellant]: Waive.
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THE COURT: —and adopt the affidavit that was filed in this case.
What would you like to do?
[Appellant]: I choose to adopt the affidavit.
THE COURT: I assume there [are] no additions or corrections to
the affidavit?
[The Commonwealth]: Only, Your Honor, that the Commonwealth
would have during the trial entered the 911 tape, the medical
report, the medic report, scene photographs, and injury
photographs.
THE COURT: No crime labs involved in this case?
[The Commonwealth]: None.
THE COURT: All right, thank you.
N.T. Guilty Plea Hr’g, 2/27/18, at 14. Following the completion of the colloquy,
the trial court accepted Appellant’s plea and deferred sentencing for the
preparation of a pre-sentence investigation report (PSI) and a sexual offender
assessment.
On May 21, 2018, the trial court sentenced Appellant to an aggregate
term of seven-and-a-half to fifteen years’ incarceration plus five years’
probation. Specifically, the trial court imposed the following individual
sentences:
Count 1—aggravated assault of the complainant: three to
six years’ imprisonment;
Count 2—EWOC as to Juvenile 1: a consecutive five to ten
months’ imprisonment;
Count 3—unlawful restraint of the complainant: a
consecutive five years’ probation;
Count 4—simple assault of to Juvenile 1: a consecutive five
to ten months’ imprisonment;
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Count 5—aggravated indecent assault of the complainant: a
consecutive three to six years’ imprisonment;
Count 6—aggravated indecent assault of the complainant: a
determination of guilt without further penalty;
Count 7—indecent assault of the complainant—a
determination of guilt without further penalty; and
Count 8—strangulation of the complainant: a consecutive
eight to sixteen months’ imprisonment.
See Sentencing Order, 5/21/18. The trial court also imposed a lifetime sexual
offender registration requirement. Among other probation conditions, the trial
court required that Appellant refrain from possessing paraphernalia regarding
pornography, and sexually oriented or sexually stimulating materials, and
required Appellant to submit to unannounced, periodic examinations of his
computer equipment.
After the trial court imposed its sentence, the Commonwealth stated
that Appellant was not eligible for RRRI. N.T. Sentencing Hr’g, 5/21/18, at
24. The trial court thanked the Commonwealth, but did not place its own
determination on the record. Id. at 24-25. At the conclusion of the hearing,
Appellant objected to the probation condition authorizing searches of
Appellant’s computer and restricting his use of the internet. Id. at 25.
Appellant filed a motion to modify his sentence on May 31, 2018, which
the trial court denied on June 19, 2018. Appellant timely filed a notice of
appeal and court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued
a responsive Rule 1925(a) opinion.
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On appeal, Appellant raises five issues, which we have reordered as
follows:
1. Whether [Appellant’s] sentence at count 6—aggravated
indecent assault is illegal because, although no further penalty
was imposed, it nevertheless had to merge, for sentencing
purposes, with the sentence at count 5—aggravated indecent
assault?
2. Whether [Appellant’s] sentence at count 3—unlawful restraint
is illegal when it should have merged, for sentencing purposes,
with the sentence at count 8—strangulation?
3. Whether the sum and substance of [Appellant’s] sentence is
illegal when the trial court failed to make a finding, on the
record at the time of sentencing, as to [Appellant’s] RRRI
eligibility?
4. Whether the trial court abused its sentencing discretion when
it placed computer restrictions on [Appellant] even though his
crimes did not involve computers in any, shape, or form?
5. Whether the sum and substance of [Appellant’s] sentence is
manifestly excessive, unreasonable, and an abuse of discretion
when the trial court failed to consider [Appellant’s] mitigating
evidence, in violation of 42 Pa.C.S. § 9721(b)?
Appellant’s Brief at 6 (some capitalization omitted).
Appellant’s first two claims relate to merger. Initially, we note that
whether convictions merge for sentencing purposes involves the legality of a
sentence. Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).
Therefore, our standard of review is de novo and our scope of review is
plenary. Id. (citation omitted).
Our Supreme Court has explained that Section 9765 of the Sentencing
Code “prohibits merger unless two distinct facts are present: 1) the crimes
arise from a single criminal act; and 2) all of the statutory elements of one of
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the offenses are included in the statutory elements of the other.” Baldwin,
985 A.2d at 833 (citing 42 Pa.C.S. § 9765). “Where crimes merge for
sentencing purposes, the court may sentence the defendant only on the higher
graded offense.” 42 Pa.C.S. § 9765.
“The preliminary consideration is whether the facts on which both
offenses are charged constitute one solitary criminal act. If the offenses stem
from two different criminal acts, merger analysis is not required.”
Commonwealth v. Healey, 836 A.2d 156, 157-58 (Pa. Super. 2003)
(citation omitted). We have explained that
[t]he answer to this question does not turn on whether there was
a “break in the chain” of criminal activity. Rather, the answer
turns on whether “the actor commits multiple criminal acts beyond
that which is necessary to establish the bare elements of the
additional crime.” If so, then the defendant has committed more
than one criminal act. This focus is designed to prevent
defendants from receiving a “volume discount on crime” . . . .
Commonwealth v. A. Robinson, 931 A.2d 15, 24-25 (Pa. Super. 2007) (en
banc) (citations omitted).
To determine whether there is a single criminal act, we must examine
the crimes as charged by the Commonwealth. Commonwealth v. Jenkins,
96 A.3d 1055, 1060 (Pa. Super. 2014); see also Commonwealth v.
Kimmel, 125 A.3d 1272, 1277 (Pa. Super. 2015) (en banc) (considering the
criminal complaint, criminal information, and affidavit of probable cause, and
concluding that the Commonwealth established the factual predicates to avoid
merger); Commonwealth v. Martinez, 153 A.3d 1025, 1032 (Pa. Super.
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2016) (stating that because “neither the charging information nor supporting
documents of record describe the operative facts in such a way as to
distinguish the specific conduct underlying the offenses,” we cannot conclude
“that the offenses were based on two discrete criminal acts for purposes of
avoiding merger at sentencing”).
If the offenses arise from a single criminal act, a merger analysis must
then consider whether “all of the statutory elements of one of the offenses are
included in the statutory elements of the other.” Baldwin, 985 A.2d at 833
(citing 42 Pa.C.S. § 9765). Our Supreme Court has explained that
we cannot ignore the simple legislative reality that individual
criminal statutes often overlap, and proscribe in the alternative
several different categories of conduct under a single banner.
See, e.g., aggravated assault, 18 Pa.C.S. § 2702 (defining seven
distinct violations of law); involuntary deviate sexual intercourse,
18 Pa.C.S. § 3123 (setting forth eight separate violations).
Consequently, in such cases, we caution that trial courts must
take care to determine which particular “offenses,” i.e. violations
of law, are at issue in a particular case. See, e.g.,
Commonwealth v. Johnson, 874 A.2d 66, 71 n.2 (Pa. Super.
2005) (recognizing that a particular subsection of a criminal
statute may merge with another crime as a lesser-included
offense even though a different subsection of that same statute
may not).
Id. at 837 n.6 (some formatting altered).
Appellant first argues that the trial court should have merged his
sentences for aggravated indecent assault at counts five and six. Appellant’s
Brief at 23. Appellant acknowledges that he was sentenced to “no further
penalty” at count six. Id. However, he asserts that, in light of this Court’s
decision in Commonwealth v. Farrow, 168 A.3d 207 (Pa. Super. 2017), the
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trial court’s determination of guilt with no further penalty at count six
constitutes an illegal sentence and must be vacated.
The Commonwealth concedes that “neither the criminal information[4]
nor the affidavit of probable cause adopted at the guilty plea hearing made a
factual distinction between the crime charged in” counts five and six.
Commonwealth’s Brief at 7. Additionally, the Commonwealth agrees that a
“no further penalty” sentence is illegal under Pennsylvania law. Id. at 8-9.
Based on our review of the record, and in light of Farrow, we conclude
that the trial court’s finding of “no further penalty” for indecent assault at
count six technically constitutes a sentence. See Farrow, 168 A.3d at 215
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4 As stated in the information, counts five and six provided:
Count: 5 AGGRAVATED INDECENT ASSAULT Felony 2
The actor engaged in penetration, however slight, of the genitals
or anus of [the complainant] with a part of the actor’s body for a
purpose other than good faith medical, hygienic or law
enforcement procedures, without the consent of that person, in
violation of Section 3125(a)(1) of the Pennsylvania Crimes Code,
Act of December 6, 1972, 18 Pa. C.S. §3125(a)(1), as amended.
Count: 6 AGGRAVATED INDECENT ASSAULT Felony 2
The actor engaged in penetration, however slight, of the genitals
or anus of [the complainant] with a part of the actor’s body for a
purpose other than good faith medical, hygienic or law
enforcement procedures, without the consent of that person, in
violation of Section 3125(a)(1) of the Pennsylvania Crimes Code,
Act of December 6, 1972, 18 Pa. C.S. §3125(a)(1), as amended.
Information, 9/23/17.
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(holding that “since a court may impose ‘guilt without further penalty’ as a
sentence under 42 Pa.C.S. § 9721(a)(2), we shall treat such dispositions “as
sentences for purposes of our double jeopardy analysis”); see also 42 Pa.C.S.
§ 9721(a)(2). Because Appellant’s sentences for aggravated indecent assault
should have merged, that portion of the sentence must be vacated. See
Baldwin, 985 A.2d at 833.
In his next claim, Appellant argues that his convictions for unlawful
restraint and strangulation should have merged for sentencing purposes. 5
Appellant’s Brief at 15. He asserts that “the criminal actions committed by
[Appellant] constituted one criminal act because the Commonwealth’s
charging information does not distinguish the factual circumstances . . .
between the two crimes.” Id. at 15. He further claims that strangulation and
unlawful restraint are “greater and lesser included offenses.” Id. at 21.
Appellant concludes that his sentence for strangulation is illegal and must be
vacated. Id. at 22.
The Commonwealth makes no argument regarding whether the charges
were based on separate criminal acts. Instead, the Commonwealth asserts
that merger is inapplicable because strangulation and unlawful restraint each
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5We emphasize that Appellant does not challenge the factual basis underlying
his guilty plea to strangulation and unlawful restraint such that his plea was
knowing, intelligent, and voluntary. Our discussion here is limited to the
narrower issue of merger which, as noted above, focuses on the offenses as
charged by the Commonwealth, rather than the totality of the circumstances
surrounding Appellant’s plea.
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require an element that the other does not. Commonwealth’s Brief at 12. The
Commonwealth argues:
Unlike unlawful restraint, strangulation does not require the
defendant to: (a) “restain[] a person unlawfully”; (2) to “expose
[a person] to risk serious bodily injury”; or to “hold[] another in a
condition of involuntary servitude.” Therefore, unlawful restraint
is not a lesser included offense of strangulation.
Nor is the converse true. It is clear that unlawful restraint does
not include all of the statute of strangulation. Unlawful restraint
does not include all of the statutory elements of strangulation.
Unlawful restraint does not include the elements of: (1)
“imped[ing] the breathing or the circulation of blood” of a person;
(2) “applying pressure to the throat or neck” of a person; (3)
“blocking the nose and mouth” of a person. Therefore,
strangulation is not a lesser included offense of unlawful restraint.
Id. (some capitalization omitted).
Here, the affidavit of probable cause stated:
Dispatch advised us that two young children (identified as Juvenile
1 and Juvenile 2) fled the residence to seek protection from their
father (later identified as [Appellant]). The male was reported
intoxicated and fighting with the mother.
[Responding officers] then attempted to make a perimeter around
the residence and request back up. [Officer Haule] went to the
rear of 6651 Hedge St. and I remained at the front with an open
door. I then verbally announced my presence loudly into the open
door. I ordered all occupants to respond to my voice, announce
themselves, come out slowly with their hands up, and open with
nothing in them. I got no response from the occupants inside.
[Officer Haule] simultaneously could hear a female screaming
(what sounded like a high pitched cry for help) come from the rear
second floor window.
[Officer Haule] and I then entered the residence.
Once inside, [responding officers] could hear the female continue
to scream (screams coming from the rear room on the second
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floor). Once on the second floor, [responding officers] observed
a bedroom door that was partially closed (closed enough that only
a flat magazine would fit through). The female screaming was
coming from behind this door. When [responding officers] opened
the door [Appellant] was found partially blocking the door by
laying in front of it. [The complainant] was also inside the room
in a corner.
[Appellant] was only wearing boxers. He was covered in blood,
but the blood did not appear to be from him. He did not appear
to have any lacerations or recent injuries.
[The complainant] was wearing a light colored t-shirt (covered in
blood). Her underwear was partially down to her knees with her
genital region showing. She sustained facial contusions (her face
appeared deformed) and complained of body pains. [The
complainant] stated to [responding officers] that he (referring to
[Appellant]) sexually assaulted her.
[Responding officers] observed blood stains throughout the
bedroom that [Appellant] and [the complainant] were inside.
[Appellant] was placed into custody at 2301 hrs.
The house was checked and there was no one else inside the
residence.
[Responding officers] spoke with Juvenile 1 and Juvenile 2.
Juvenile 1 and 2 stated to [responding officers] that tonight
[8]/9/2017 [they] were inside the 2nd floor bed room (front
bedroom with couches in it) with [the complainant] (their
mother). [Appellant] came into the bedroom and demanded [that
the complainant] come with him into the main bedroom. [The
complainant] told [Appellant] no. [Appellant] then became very
angry and forcibly pulled [the complainant] out of the bedroom.
Juvenile 1 and 2 then [were] shoved by [Appellant] into the couch
(causing Juvenile 1 to have a bloody nose and busted lip) and wall
(causing Juvenile 2 to complain of soreness near his lower back).
[Appellant] then continued to assault [the complainant] while
Juvenile 1 and 2 fled the 2nd floor and ran to the next door
neighbor’s house for help.
[Responding officers] observed Juvenile 1 had a bloody nose and
busted lip. Juvenile 2 complained of soreness to the touch on his
back.
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Aff. of Probable Cause, 8/10/17.
When the Commonwealth filed the information after the preliminary
hearing, it set forth the following elements and grading factors of the offenses
of unlawful restraint and strangulation as follows:
Count: 3 UNLAWFUL RESTRAINT-SERIOUS BODILY INJURY
Misdemeanor 1
The actor knowingly and unlawfully restrained [the complainant],
in circumstances exposing that person to risk of serious bodily
injury or knowingly holding that person in a condition of
involuntary servitude, in violation of Section 2902(a) of the
Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa. C.S.
§2902(a), as amended.
* * *
Count: 8 STRANGULATION-APPLYING PRESSURE TO THROAT OR
NECK Felony 2
The actor knowingly or intentionally impeded the breathing or
circulation of the blood of another person by applying pressure to
the throat or neck, or by blocking the nose and mouth of the
person, namely, [the complainant], and the act was committed
against a family or household member as defined in 23 Pa.C.S. §
6102; or the act was committed by a caretaker against a care
dependent person; or the act was committed in conjunction with
sexual violence as defined in 42 Pa.C.S. § 62A03 or conduct
constituting a crime under section 2709.1 (relating to stalking) or
Subchapter B of Chapter 30 (relating to prosecution of human
trafficking), in violation of Section 2718(a) and (d)(2) of the
Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S.
§2718(a) and (d)(2), as amended.
Information, 9/23/17.
Based on these charging documents, Appellant pled guilty to unlawful
restraint based on allegations that he knowingly “restrain[ed] another
unlawfully in circumstances exposing [the complainant] to risk of serious
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bodily injury[.]” 18 Pa.C.S. § 2902(a). “Serious bodily injury” is “[b]odily
injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” 18 Pa.C.S. § 2301.
Appellant also pled guilty to strangulation based on allegations that he
“knowingly or intentionally impede[d] the breathing or circulation of the blood
of another person by . . . applying pressure to the throat or neck.” 18 Pa.C.S.
§ 2718(a)(1). “Infliction of a physical injury to a victim shall not be an element
of the offense.” 18 Pa.C.S. § 2718(b).
Here, both offenses require an element that the other does not. See 42
Pa.C.S. § 9765; see also Kimmel, 125 A.3d at 1276. Specifically,
strangulation does not require proof of “circumstances exposing [the
complainant] to risk of serious bodily injury,” which is an element of unlawful
restraint. Compare 18 Pa.C.S. § 2301, with 18 Pa.C.S. § 2718(a)(1).
Unlawful restraint does not require proof that a defendant impeded “the
breathing or circulation of the blood of another person by . . . applying
pressure to the throat or neck,” which is an element of strangulation.
Compare 18 Pa.C.S. § 2301, with 18 Pa.C.S. § 2718(a)(1). Therefore, based
on our application of the elements test required by Section 9765, strangulation
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and unlawful restraint do not merge for purposes of sentencing. 6 See
Kimmel, 125 A.3d at 1276.
In his next issue, Appellant argues that his sentence is illegal because
the trial court did not determine his RRRI eligibility at the time of sentencing.
Appellant’s Brief at 26. He asserts that although the Commonwealth stated
that Appellant was ineligible for RRRI, “[t]he statutory language requires that
the trial court make the finding of RRRI eligibility; it cannot be satisfied by the
Commonwealth, nor the defense attorney, or even the defendant.” Id.
Pursuant to Section 9756 of the Sentencing Code, at sentencing, “[t]he
court shall determine if the defendant is eligible for a [RRRI] minimum
sentence.” 42 Pa.C.S. § 9756(b.1); see 61 Pa.C.S. § 4503 (stating that an
eligible offender is one who “[d]oes not demonstrate a history of present or
past violent behavior”). “[W]here the trial court fails to make a statutorily
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6 The record indicates that the strangulation and unlawful restraint involved
two separate acts. See N.T. Prelim. Hr’g, 11/17/17, at 7. However, we note
that the Commonwealth failed to incorporate the preliminary hearing
testimony at the guilty plea hearing. See N.T. Guilty Plea Hr’g at 14.
Moreover, as with counts five and six regarding aggravated indecent assault,
the affidavit of probable cause only contained facts related to the original
charges of unlawful restraint, aggravated assault, and sexual assault against
the complainant. See Aff. of Probable Cause, 8/10/17; see also Criminal
Information, 9/25/17. The affidavit did not include any facts relating to an
act of strangulation. As noted previously, in the context of a merger analysis,
we must consider the offenses as charged by the Commonwealth. See
Jenkins, 96 A.3d at 1060; see also Martinez, 153 A.3d at 1032. Therefore,
because it appears that the Commonwealth failed to establish a distinct factual
basis for each offense, we could conclude that, based on the lack of
differentiating facts, both strangulation and unlawful restraint arose out of the
same criminal act. See id.
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required determination regarding a defendant’s eligibility for an RRRI
minimum sentence as required, the sentence is illegal.” Commonwealth v.
S. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010).
Here, although the Commonwealth addressed Appellant’s RRRI
eligibility at sentencing, the trial court did not make its own statutorily
required determination.7 See N.T. Sentencing Hr’g at 24-25. Therefore,
Appellant’s sentence is illegal, and remand is necessary for the trial court to
determine Appellant’s RRRI eligibility on the record.8 See S. Robinson, 7
A.3d at 875.
Appellant’s next claim relates to the terms of his probation. First, he
challenges the condition allowing probation officers to conduct “periodic
unannounced examinations of [Appellant’s] computer equipment” and
precluding him from accessing pornographic materials. Appellant’s Brief at
36. Specifically, he asserts that the trial court abused its sentencing discretion
by imposing “computer and internet monitoring conditions that were not
rationally related to the nature of the offense.” Id. at 35.
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7We also note that the sentencing order contains no reference to Appellant’s
RRRI eligibility. See Sentencing Order, 5/21/18.
8 We recognize that Appellant is ineligible for RRRI based on his conviction for
aggravated indecent assault. See 61 Pa.C.S. § 4503(4) (noting that a
defendant is not eligible for RRRI if he is convicted of an offense under 42
Pa.C.S. Ch. 97, relating to registration of sexual offenders). Nonetheless, the
trial court’s sentence is illegal, and therefore must be vacated. See
Commonwealth v. Ramos, 197 A.3d 766, 769 (Pa. Super. 2018).
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Initially, we note that our review of Appellant’s issue depends on the
nature of the claims being raised. It is well settled that a challenge to the
legality of a sentence raises a question of law. Commonwealth v. C. Smith,
956 A.2d 1029, 1033 (Pa. Super. 2008) (en banc). In reviewing this type of
claim, our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super. 2013). “An illegal
sentence must be vacated.” Ramos, 197 A.3d at 769 (citation and quotation
marks omitted). Moreover, “a challenge to the legality of the sentence can
never be waived and may be raised by this Court sua sponte.”
Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014) (citation
omitted).
In contrast, a defendant does not have an absolute right to pursue a
challenge to the discretionary aspects of a sentence. See Commonwealth
v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (en banc). Rather, before
reaching the merits of such claims, we must determine whether (1) the appeal
is timely; (2) the defendant preserved his issues; (3) the defendant included
a concise statement of reasons for the discretionary sentence claim in his
brief; and (4) the sentence is inappropriate under the sentencing code. See
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation
omitted). If a defendant invokes this Court’s jurisdiction to review the
discretionary aspects of a sentence, we review a sentence for an abuse of
discretion. Commonwealth v. J. Smith, 206 A.3d 551, 567 (Pa. Super.
2019).
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Here, although framed as a discretionary claim, Appellant’s challenge to
the probation condition authorizing suspicionless searches of his property
implicates the legality of his sentence. See Commonwealth v. Wilson, 67
A.3d 736 (Pa. 2013) (vacating a probation condition authorizing warrantless,
suspicionless searches of a probationer’s home, and reversing this Court’s
decision construing the claim as a challenge to the discretionary aspects of a
sentence). Therefore, we may raise it sua sponte. See Wolfe, 106 A.3d at
801.
Section 9754(c) of the Sentencing Code addresses the conditions of
probation that a court may impose. 42 Pa.C.S. § 9754(c). Specifically, a
court may order a defendant “[t]o satisfy any other conditions reasonably
related to the rehabilitation of the defendant and not unduly restrictive of his
liberty or incompatible with his freedom of conscience.” 42 Pa.C.S. §
9754(c)(13). Section 9912(d)(2) establishes the conditions under which a
county probation officer may conduct a warrantless search. 42 Pa.C.S. §
9912(d). Specifically, a probation officer must have “reasonable suspicion to
believe that the real or other property in the possession of or under the control
of the offender contains contraband or other evidence of violations of the
conditions of supervision.” 42 Pa.C.S. § 9912(d)(2).
In Wilson, our Supreme Court explained that
we do not read the Sentencing Code’s catchall and generalized
authorization of sentencing courts to impose probation conditions
“reasonably related to the rehabilitation of the defendant and not
unduly restrictive of his liberty” as establishing an exception to
the later-adopted, explicit statutory restriction upon warrantless
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searches by probation officers. This provision does not specifically
speak to issues of search and seizure—except insofar as it
recognizes that the probationer maintains some measure of a
liberty interest. If anything, the qualification of the Section
9754(c)(13) power—i.e., that the reasonable conditions cannot be
“unduly restrictive of liberty”—suggests the General Assembly’s
awareness that even probationers may retain a measure of
privacy. And, that measure of privacy is explicitly addressed by
the search restrictions in Section 9912(d)(2).
Wilson, 67 A.3d at 745. Further, the Court held that “under this statutory
construct, sentencing courts are not empowered to direct that a probation
officer may conduct warrantless, suspicionless searches of a probationer as a
condition of probation.” Id.
Here, like in Wilson, the trial court violated the dictates of Section
9912(d)(2) by authorizing probation officers to conduct suspicionless searches
of Appellant’s personal property. Wilson, 67 A.3d at 745; see also 42
Pa.C.S. § 9912(d)(2). Accordingly, this condition is illegal and must be
vacated. Further, because this “may upset the sentencing scheme envisioned
by the trial court,” we conclude that remand is necessary. See
Commonwealth v. Phillips, 946 A.2d 103, 115 (Pa. Super. 2008).
To the extent Appellant argues that the probation conditions were not
reasonably related to his convictions, it is a challenge to the discretionary
aspects of his sentence. See Commonwealth v. Houtz, 982 A.2d 537, 539-
540 (Pa. Super. 2009) (stating that where a defendant claims that the trial
court’s probation condition is “not reasonably related” to the conviction, it is
a challenge to the discretionary aspects of the sentence). In light of our
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disposition, we decline to address this claim. 9 See Commonwealth v.
Barnes, 167 A.3d 110, 125 n.13 (Pa. Super. 2017) (en banc) (concluding that
this Court “need not address” discretionary sentencing claims when the matter
is remanded for resentencing and stating that on remand, “the sentencing
judge should start afresh” (citation omitted)).
In sum, the trial court correctly concluded that Appellant’s convictions
for unlawful restraint and strangulation did not merge for sentencing
purposes. However, the trial court’s sentence for indecent assault at count
six was illegal because it should have merged with count five. Further, the
trial court should have made a determination concerning Appellant’s RRRI
eligibility on the record. Finally, the probation condition authorizing
suspicionless searches by probation officers is illegal and must be vacated.
Therefore, we affirm Appellant’s convictions, but vacate the sentence and
remand for resentencing.
Convictions affirmed. Judgment of sentence vacated. Case remanded
with instructions. Jurisdiction relinquished.
____________________________________________
9 We also decline to address Appellant’s final issue, which relates to the
discretionary aspects of his sentence. Additionally, we note that if Appellant
seeks to raise these claims in an appeal following resentencing, he should
properly preserve them before the trial court and on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2020
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