concurring and dissenting.
I concur in that portion of the opinion and order of the majority remanding the case to the Court of Common Pleas for the appointment of new counsel and for an evidentiary hearing with regard to Appellant’s ineffectiveness claim. However, I dissent from that portion of opinion and order vacating Appellant’s sentence for conviction of involuntary deviate sexual intercourse with another person who is less than 16 years of age. 18 Pa.C.S.A. § 3123(5).
In the instant case Appellant forced the 15 year old daughter of his mistress to engage in vaginal and oral intercourse. Appellant was charged in the Court of Common Pleas of Allegheny County with of one count of rape, 18 Pa.C.S.A. § 3121(1),1 and two counts of involuntary devi*289ate sexual intercourse, 18 Pa.C.S.A. § 3123(2) (by threat of forcible compulsion) and (5) (with another person who is less than 16 years of age).2 On January 13, 1987, in a non-jury trial before the Honorable John W. O’Brien, Appellant was convicted of all the charges.
On January 15, 1987, the Commonwealth notified the Appellant of its intention to proceed under the mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9718.3 This section of the sentencing code provides that a person convicted of rape or involuntary deviate sexual intercourse when the victim is under 16 years of age shall be sentenced to a mandatory term of imprisonment of not less than five years. As noted above, the victim in this case was only 15 years old.
At a sentencing hearing on May 4, 1988, the Commonwealth argued (and I agree) that Appellant should receive a substantial period of incarceration in excess of the mandatory minimum required in 42 Pa.C.S.A. § 9718. Judge O’Brien sentenced Appellant as follows:
As to the first count of rape, I am going to sentence the defendant to not less than 10 years nor more than 20 years____ At count two the charge of involuntary deviate sexual intercourse, it will be the sentence of this
*290Court that the defendant to (sic) serve not less than 5 years nor more than 20 years. I will make that sentence concurrent with the 10 to 20 year sentence. On the third count of deviate sexual intercourse, I would place the defendant on a 10 year probation effective at the end of the sentence at count one. So in effect, the defendant has 10 to 20 years sentence where he will be under the jurisdiction of the Pennsylvania Board of Probation and Parole until he is age 57 and so they will have a handle on him.
Sentencing Transcript at p. 13-14 (May 4, 1988).
Post trial motions and a separate motion to modify sentence were denied by the trial Court. On appeal the Superi- or Court affirmed the judgement of sentence. In his appeal to this Court Appellant argues (for the first time) that the imposition of separate sentences for convictions on subsections (2) (involuntary deviate sexual intercourse by threat of forcible compulsion, and (5) involuntary deviate sexual intercourse with another person who is less than 15 years of age) constitutes an illegal sentence.
In its opinion the majority has determined that “the fair import of the statute’s terms ... including its five subsections reveals a design to proscribe the same harm.” Op. at p. 1024. The majority concludes, in cursory fashion, that the imposition of separate sentences for the two counts of involuntary deviate sexual intercourse arising from a single act was beyond the authority of the trial court. I disagree.
The majority has completely overlooked this Court’s unequivocal rejection of the “single act” theory of the doctrine of merger in Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986) an opinion authored by this writer. The clear mandate of our holding in Rhodes, is that a single act of sexual intercourse with a victim who is under the age of fourteen years may constitute rape as well as statutory rape where the elements of each distinct offense have been proven beyond a reasonable doubt. In Rhodes we held that neither “double jeopardy principles [nor] the doctrine of lesser included offenses prohibit the conviction and sen*291tence for both rape and statutory rape arising from a single act of sexual intercourse”. Id., 510 Pa. at 561, 510 A.2d at 1217 (emphasis added). The language from our opinion in Rhodes is instructive.
... the Commonwealth has suffered two injuries from appellee’s single act in that he not only engaged in sexual intercourse by forcible compulsion ..., he also engaged in such acts with a victim under the statutory age____ The separate injuries are proscribed by separate offenses with distinct elements.
Id., 510 Pa. at 562, 510 A.2d at 1230.
Similarly, in Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986), we upheld separate sentences for the crimes of indecent exposure, indecent assault, and corrupting the morals of a minor stating that the crimes do not merge for purposes of sentencing because each of the crimes contain different elements designed to protect “fundamentally” different Commonwealth interests. As Justice McDermott pointed out in Sayko “the corruption of a minor child, can only be committed against a minor child, hence the interest to be protected and the age of the victim are elements different from those of indecent assault and indecent exposure which offenses can be perpetrated against anyone, young or old.” Id., 511 Pa. at 613-614, 515 A.2d at 896. Hence, Sayko’s sentences of one to two years for indecent exposure, one to two years for indecent assault and five years probation for corrupting the morals of a minor did not merge merely because they were committed against the same child at the same time; ie., during a single criminal transaction.
Undoubtedly, our holdings in Rhodes and Sayko should apply with equal force and vigor in the instant case. In this case, the Commonwealth suffered two injuries from Appellants single act in that he not only performed oral sex upon the victim by threat of forcible compulsion but also performed oral sex upon a victim under the statutory age. Subsections (1) through (4) of § 3123 proscribe involuntary deviate sexual intercourse against anyone young or old. *292Subsection § 3123(5), however, was enacted to protect a different interest — deviate sexual intercourse against children — and requires proof of an additional element — that the victim is less than 16 years of age. As with statutory rape, consent is not an issue nor a defense with regard to § 3123(5). Further evidence of the separateness of the offenses and the difference in the interest to be protected is found in 42 Pa.C.S.A. § 9718 which requires a mandatory minimum sentence of five years for conviction of involuntary deviate sexual intercourse when the victim is under 16 years of age.
Appellant herein was convicted of rape, involuntary deviate sexual intercourse by threat of forcible compulsion and involuntary deviate sexual intercourse with another person who is less than 16 years of age. The mandatory sentencing provisions of 42 Pa.C.S.A. § 9718 required that Appellant be sentenced to a mandatory minimum term of imprisonment of five years for his convictions of rape and “statutory” involuntary deviate sexual intercourse. Judge O’Brien sentenced Appellant to ten to twenty years on the charge of rape, a concurrent term of five to twenty years on one charge of involuntary deviate sexual intercourse and a consecutive term of ten to twenty years probation on the second charge of involuntary deviate sexual intercourse. Unlike the majority, I believe that the Appellant should serve the additional consecutive term of ten to twenty years probation lawfully imposed by Judge O’Brien.
. Rape
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious; or
(4) who is so mentally deranged or deficient that such person is incapable of consent.
*289Whenever the term "rape” is used in this title or any other title, it is deemed to include spousal sexual assault as further defined in section 3128 (relating to spousal sexual assault). 18 Pa.C.S.A. § 3121 (Purdon, 1983).
. Involuntary deviate sexual Intercourse
A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious;
(4) who is so mentally deranged or deficient that such person is incapable of consent; or
(5) who is less than 16 years of age.
18 Pa.C.S.A. § 3123 (Purdon, 1983).
. The Commonwealth also gave notice of its intention to proceed under 42 Pa.C.S.A. § 9714. Section 9714 is a recidivist statute which carries a mandatory minimum sentence of five years. Appellant had a prior conviction for a rape on February 11, 1983.