J-S40017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

FRANCIS SCHMINCKE

                            Appellant                   No. 1950 EDA 2015


             Appeal from the Judgment of Sentence May 26, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009698-2013


BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                                 FILED JUNE 06, 2016

       Appellant, Francis Schmincke, appeals from the May 26, 2015

aggregate judgment of sentence of 7 to 17 years’ incarceration, imposed by

the trial court after a jury convicted Appellant of involuntary sexual

intercourse (IDSI), unlawful contact with a minor, aggravated indecent

assault, and indecent assault.1 After careful review, we affirm.

       The trial court recited the facts of record as follows.

                    In 2000, [S.R.] and her two children, L.R., who
              was three years old at the time, and [G], moved in
              with her mother … in Philadelphia. During the six
              years [S.R.] lived with her mother, [S.R.’s] nephew,
              [Appellant] (L.R.’s cousin), would babysit her
____________________________________________


1
   18 Pa.C.S.A. §§ 3123(a)(6), 6318(a)(1), 3125(7), and 3126(a)(7),
respectively.
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          children.    When L.R. was in first grade, while
          [Appellant] was babysitting, he took L.R. upstairs to
          her grandmother’s room. [Appellant] took his pants
          off and made L.R. suck his penis and put her hands
          on his penis. [Appellant] then took L.R.’s pants off
          and licked her vagina and stuck his finger in her
          vagina. [Appellant] then lay next to L.R. and made
          himself ejaculate. When L.R.’s mother came home,
          L.R. did not say anything about what [Appellant] had
          done because she did not understand that it was a
          bad thing.

                L.R. explained that incidents like these
          occurred over fifty times while she lived at her
          grandmother’s house []. Specifically, L.R. described
          another incident of abuse that occurred when she
          was about seven years old. While [Appellant] was
          babysitting L.R. at his house, he made L.R. perform
          oral sex on him and afterwards made himself
          ejaculate. Another incident occurred when L.R. was
          about eight years old.       While [Appellant] was
          babysitting L.R. at her grandmother’s house, they
          were on the couch when [Appellant] made L.R.
          perform oral sex on him. [Appellant] did not stop
          abusing L.R. until she and her family moved away
          from Philadelphia when she was nine years old.

                When L.R. was about thirteen or fourteen
          years old, she told a friend, [A.W.], about how
          [Appellant] had abused her. Later that year, she
          told her cousin on her father’s side, S.B., about the
          abuse. S.B. informed his mother, who eventually
          informed [L.R.’s mother].       [L.R.’s mother] then
          asked L.R. about it and L.R. told her mother about
          the abuse she had suffered. After L.R. disclosed the
          abuse to her mother, [her mother] insisted she
          report it and they contacted local authorities. On
          October 15, 2012, L.R. made a report to the Special
          Victims Unit of the Philadelphia Police.

                Sometime after [the family] moved out of
          Philadelphia to Perry County, [L.R.’s maternal aunt]
          told [L.R.’s mother] information which led [her] to
          question L.R.     L.R. admitted that in the past

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          [Appellant] had “done things to her.”        [L.R.’s
          mother] contacted the Perry County Police and Child
          and Youth Services. A few weeks after speaking to
          the Perry County Police, [L.R.’s mother] and L.R.
          traveled to Philadelphia and spoke to the
          Philadelphia Police. After speaking to police, L.R.
          became suicidal and was admitted to a hospital.
          While L.R. was in the hospital, she was again
          interviewed by detectives from the Philadelphia
          Police.

                In 2012, [A.W.], L.R.’s friend, went out to
          dinner with L.R. and her mother. L.R. seemed upset
          and when [A.W.] inquired why she was upset, L.R.
          told her that when she was younger, [Appellant] had
          molested her. L.R. asked [A.W.] not to tell anyone,
          especially her mother, about what she had disclosed.

                In March of 2013, Detective Erin Hinnov, who
          at the time was assigned to the Special Victims Unit
          of the Philadelphia Police Department, received a
          report from the Department of Human Services and
          began investigating. Detective Hinnov interviewed
          L.R., who informed her that [Appellant] used to
          perform oral sex on her, fondle her vagina, and have
          her perform oral sex on him. After the interview
          with L.R., Detective Hinnov interviewed [L.R.’s
          mother] and [Appellant’s] family members. After
          completing these interviews, Detective Hinnov
          prepared an arrest warrant for [Appellant].

                [J.S.], [Appellant’s] mother, [S.S.], and S.B.,
          [Appellant’s] brothers, testified on [Appellant’s]
          behalf.     [J.S.] lived on Braddock Street in
          Philadelphia for twelve years with her four sons.
          According to [J.S.], during that time, neither [L.R.’s
          mother] nor L.R. ever visited her house.
          Additionally, [Appellant] never babysat for L.R.
          However, [J.S.] son, [S.S.], would occasionally
          babysit for L.R.

               [S.S.] explained that when he was living on
          Braddock Street, he would occasionally babysit L.R.


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            at his grandmother’s house. [S.S.] claimed that
            [Appellant] never accompanied him to babysit L.R.

                  S.B. testified that when he was eleven years
            old, he was talking to L.R. about [Appellant] in a
            sexual manner. S.B. got confused and made an
            allegation of sexual abuse against [Appellant]. S.B.
            claimed he withdrew the complaint because it was
            not true.

                   Cidney Canada testified to [Appellant’s]
            reputation for being a peaceful and law-abiding
            citizen.

                  [Appellant] testified that he only babysat for
            L.R. on one single occasion. [Appellant] denied that
            he ever sexually abused L.R. [Appellant] explained
            that he was an outsider in his family and he believed
            L.R. was making up these allegations to put him
            down.

                   The Commonwealth presented testimony from
            L.R. and State Trooper Krista Miller in rebuttal. L.R.
            testified that in 2011, S.B. told her that [Appellant]
            had touched him. In April of 2013, State Trooper
            Krista Miller went to Joanne Schmincke’s home in
            Cumberland County in response to a report of child
            sexual assault. During that visit, S.B. recounted to
            State Trooper Miller that he had been abused by
            [Appellant].

Trial Court Opinion, 8/13/15, at 2-5 (citations to notes of testimony

omitted).

     Appellant was charged with the above offenses, and appeared for trial

on February 17-18, 2015, after which the jury rendered its guilty verdicts.

On May 26, 2015, the trial court sentenced Appellant to concurrent terms of

6 to 15 years’ incarceration for IDSI, 6 to 15 years’ incarceration for

unlawful contact with a minor, and 2 to 4 years’ incarceration for aggravated

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indecent assault; the trial court further sentenced Appellant to a consecutive

term of 1 to 2 years’ incarceration for indecent assault, for an aggregate

sentence of 7 to 17 years’ of incarceration.

       On May 28, 2015, Appellant filed a motion for a new trial, in which he

raised ineffectiveness of counsel relative to the admission of L.R.’s

testimony.    The trial court denied the motion on June 4, 2015.        Appellant

filed a notice of appeal on June 22, 2015.2

       On appeal, Appellant presents three issues, enumerated as two, for

our review.

              1. The weight and sufficiency of the evidence were
                 such that the trial court erred in finding Appellant
                 guilty of the crimes charged.

              2. The trial court erred in failing to merge
                 aggravated indecent assault and indecent assault
                 with [IDSI] and/or failing to merge aggravated
                 indecent assault with indecent assault. []

Appellant’s Brief at 10.

       In his first issue, Appellant argues against the weight and sufficiency

of the evidence to support his convictions. Upon review of the pleadings, we

decline to reach the merits of this argument, because Appellant failed to

include any weight or sufficiency claims in his Rule 1925(b) concise

statement. See Appellant's Rule 1925(b) Statement, 8/10/15. Our finding
____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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is supported by the fact that the trial court did not address weight and

sufficiency claims in its Rule 1925(a) opinion.     See Trial Court Opinion,

8/13/15.

      Unequivocally, by its plain text, Rule 1925(b) requires that statements

“identify each ruling or error that the appellant intends to challenge with

sufficient detail to identify all pertinent issues for the judge.”   Pa.R.A.P.

1925(b)(4)(ii).   The Rule also requires that “[e]ach error identified in the

Statement will be deemed to include every subsidiary issue contained

therein which was raised in the trial court....” Id. at 1925(b)(4)(v).   Most

significantly, any issues not raised in accordance with Rule 1925(b)(4) will

be deemed waived.      Id. at 1925(b)(4)(vii).   Our Supreme Court has held

that Rule 1925(b) is a bright-line rule, and “any issues not raised in a Rule

1925(b) statement will be deemed waived.”        Commonwealth v. Hill, 16

A.3d 484, 494 (Pa. 2011); accord Pa.R.A.P. 1925(b)(4)(vii).      Accordingly,

Appellant’s weight and sufficiency claims are waived.

      In his second issue, Appellant argues that the trial court erred at

sentencing by “failing to merge Aggravated Indecent Assault and Indecent

Assault with IDSI and or failing to merge Aggravated Indecent Assault with

Indecent Assault.”     Appellant’s Brief at 24.     The Commonwealth has

responded, inter alia and apropos, that Appellant’s convictions “did not stem

from one criminal act, but more than fifty acts committed over a period of

approximately six years.” Commonwealth’s Brief at 6.


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      In rejecting Appellant’s merger claim, the trial court capably explained,

and it bears repeating here, as follows.

            42 Pa.C.S.A. § 9765 provides:

                        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.

            Section 9765 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 the offenses are included in the statutory
            elements of the other.          Commonwealth v.
            Baldwin, 985 A.2d 830, 833 (Pa. 2009).

                                      …

                  In Commonwealth v. Allen, 856 A.2d 1251,
            1253-54 (Pa. Super. 2004)[, appeal denied, 870
            A.2d 319 (Pa. 2005)], the Superior Court held that
            Aggravated Indecent Assault and Indecent Assault
            are not greater and lesser-included offenses and do
            not merge. Accordingly, [Appellant’s] argument that
            Aggravated Indecent Assault and Indecent Assault
            should have merged is meritless.

                  In Commonwealth v. Yeomans, the Superior
            Court explained that “the preliminary consideration
            under Section 9765 is whether the two crimes at
            issue arose from a single act. This is because our
            courts have long held that where a defendant
            commits multiple distinct criminal acts, concepts of
            merger do not apply.” 24 A.3d 1044, 1050 (Pa.
            Super. 2011) (citation omitted).      The [Superior
            C]ourt explained that a defendant commits more
            than one criminal act if he commits multiple criminal
            acts beyond that which is necessary to establish the

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             bare elements of the additional crime. Id. (citation
             omitted). The rationale is to prevent defendants
             from receiving a “volume discount” on crime. Id.;
             Commonwealth v. Ross, 543 A.2d 1235, 1237 (Pa.
             Super. 1988) (finding appellant’s conviction for
             Indecent Assault and IDSI did not merge where the
             defendant committed multiple acts during each
             encounter); Commonwealth v. Whetstine, 496
             A.2d 777, 780-81 (Pa. Super. 1985) appellant’s
             convictions for IDSI and Indecent Assault did not
             merge where appellant committed separate and
             distinct injurious acts).

                    Here, [Appellant] committed multiple distinct
             criminal acts.      In the first instance of abuse,
             [Appellant] forced L.R. to touch and suck on his
             penis, committing IDSI. N.T., 2/17/2015, at 95-96.
             [Appellant] then continued the abuse by licking
             L.R.’s vagina and inserting his finger into her vagina,
             committing Aggravated Indecent Assault. Id. at 96-
             99.    Finally, [Appellant] ejaculated next to L.R.,
             committing Indecent Assault. Id. In this single
             incident of abuse, [Appellant] committed multiple
             distinct criminal acts that supported his convictions
             for IDSI, Aggravated Indecent Assault, and Indecent
             Assault. Additionally, [Appellant] sexually abused
             L.R. over fifty times over the course of the years that
             she lived with her grandmother, further supporting
             that [Appellant] committed distinct criminal acts.
             Id. at 100-103. Accordingly, the charges did not
             merge.

Trial Court Opinion, 8/13/15, at 9-11.

     Given    the   record   before   us,   we   are   in   agreement   with   the

Commonwealth and trial court regarding Appellant’s merger claim.               As

Appellant’s first issue is waived, and his second issue is without merit, we

decline to grant Appellant relief, and affirm the May 26, 2015 judgment of

sentence.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016




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