J-S95027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOEL OREE

                            Appellant                   No. 426 EDA 2016


            Appeal from the Judgment of Sentence August 21, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000859-2014


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                               FILED MAY 23, 2017

       Joel Oree appeals from the August 21, 2015 judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

convictions for rape, involuntary deviate sexual intercourse (“IDSI”), sexual

assault, indecent exposure, and indecent assault.1           We vacate Oree’s

judgment of sentence for sexual assault and affirm as to his remaining

convictions.

       The trial court set forth the following facts:

              [Ikea] Rogers [(“Victim”)], the victim in this case, first
           met [Oree] on the Broad Street Line train on November
           11, 2013 at approximately five or six o’clock in the
           evening. [Victim] was homeless at the time, and [Oree]
           asked if she wanted to spend the night at his residence.
____________________________________________


       1
        18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3127(a), and
3126(a)(2), respectively.
J-S95027-16


        [Victim] and [Oree] disembarked at the Susquehanna-
        Dauphin stop and walked to [Oree]’s apartment.

           Once at the apartment, [Oree] gave [Victim] pajamas
        and said she could sleep on the couch. [Victim] fell asleep
        but was later awoken by [Oree] and asked to perform oral
        sex in exchange for staying the night.         [Oree] then
        grabbed [Victim] by the neck, forced her on her knees,
        and made her perform oral sex. [Oree] ejaculated in
        [Victim]’s mouth and told her to swallow it, and she did.

           [Oree] then grabbed [Victim] by both arms and led her
        to his bed. [Oree] told [Victim] to remove her pajamas,
        and she complied.       [Victim] asked [Oree] to wear a
        condom, but [Oree] refused. [Oree] then put his penis
        inside [Victim]. [Victim] told [Oree] to stop, but he did
        not. [Victim] “just kept screaming no” and tried to push
        [Oree] away. According to [Victim], [Oree] was on top of
        her “[a]ll night long.”

           Early the next morning, [Victim] gathered her clothes
        and escaped the apartment while [Oree] used the
        bathroom.    The next day, having seen her therapist,
        [Victim] met with police a[t] St. Joseph’s Hospital who
        subsequently took her to meet with Special Victims Unit.
        [Victim] now fears for her life, carrying knives and mace in
        her pocketbook every time she is out.

1925(a) Opinion, 7/11/16, at 2-3 (“1925(a) Op.”) (internal citations

omitted).

     On February 5, 2015, following a bench trial, the trial court convicted

Oree of the aforementioned crimes.     On August 21, 2015, the trial court

sentenced Oree to 7 to 14 years’ incarceration followed by 6 years’ probation

for the rape conviction, and two concurrent terms of 10 years’ probation for

the IDSI and sexual assault convictions.       The trial court imposed all

probation terms concurrently. Oree filed a post-sentence motion, which the




                                    -2-
J-S95027-16



trial court denied by operation of law on January 4, 2016. On February 3,

2016, Oree timely filed a notice of appeal.

      Oree raises the following issues on appeal:

         A. Did the lower court err as a matter of law by imposing
            separate sentences on the charges of sexual assault,
            rape and involuntary deviate sexual intercourse, where
            sexual assault is a lesser included offense of the latter
            two offenses?

         B. Were the verdicts against the weight of the evidence
            where Ms. Rogers gave inconsistent descriptions of the
            night in question and appell[]ant offered a simple
            explanation for their meeting?

         C. Did the lower court abuse its discretion by imposing a
            sentence in excess of the guideline range without
            properly stating the basis for doing so on the record?

Oree’s Br. at 5 (full capitalization omitted).

      Oree first claims that the sexual assault conviction merged with the

rape and IDSI convictions for sentencing purposes.

      “A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence,” for which our standard of

review is de novo and our scope of review is plenary.    Commonwealth v.

Nero, 58 A.3d 802, 806 (Pa.Super. 2012) (quoting Commonwealth v.

Quintua, 56 A.3d 399, 400 (Pa.Super. 2012)).

      The statute governing the merger of sentences 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



                                       -3-
J-S95027-16


           merge for sentencing purposes, the court may sentence
           the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. The statute “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).     Sexual assault is a lesser-included offense of rape and IDSI.

See Commonwealth v. Buffington, 828 A.2d 1024, 1032 (Pa. 2003) (“As

the rape and involuntary deviate sexual intercourse offenses at issue

subsume a lack of consent, although each requires more, and sexual

intercourse is common to the offenses, we conclude that sexual assault

constitutes a lesser-included offense of these crimes.”).2


____________________________________________


       2
        Section 3101 of the Crimes Code defines sexual intercourse as
“intercourse per os or per anus, with some penetration however slight;
emission is not required.” 18 Pa.C.S. § 3101. The Pennsylvania Supreme
Court in Commonwealth v. Kelley, defined sexual intercourse and deviate
sexual intercourse as “includ[ing] vaginal intercourse, anal intercourse, oral
intercourse, and penetration by a foreign object.” 801 A.2d 551, 556 (Pa.
2002).

      Sexual assault occurs when a “person engages in sexual intercourse or
deviate sexual intercourse with a complainant without the complainant's
consent.” 18 Pa.C.S. § 3124.1.

     Rape occurs when a “person engages in sexual intercourse with a
complainant . . . [b]y forcible compulsion.” 18 Pa.C.S. § 3121.

     IDSI occurs when a “person engages in deviate sexual intercourse with
a complainant . . . by forcible compulsion[.]” 18 Pa.C.S. § 3123.




                                           -4-
J-S95027-16



      The trial court convicted and sentenced Oree for three separate

criminal acts.   In its 1925(a) opinion, however, it acknowledged that the

sexual assault conviction arose from the same criminal acts as the rape and

IDSI convictions. 1925(a) Op. at 4. We agree.

      The Pennsylvania Supreme Court has previously explained that

          an overarching chain of events does not constitute a single
          criminal act when there is a break in that chain. A break
          requires both that: (1) the acts constituting commission of
          the first crime were completed before the defendant began
          committing the second crime; and (2) proof of the second
          crime did not in any way rely on the facts necessary to
          prove the first crime. In addition, the break must be
          either: (1) a significant temporal lapse; or (2) where
          applicable, indicated by a change in the criminal intent of
          the defendant at some point during the sequence. Where a
          defendant is convicted of two or more crimes and there is
          no break, the court must then proceed to the merger
          analysis as above described. If the acts that make-up the
          first crime are complete before the defendant begins the
          second crime, if proof of the second crime does not rely on
          any of the facts supplying proof of the first crime, and if
          there is either a significant temporal break or a change in
          the defendant’s intent, the defendant will have committed
          multiple criminal acts.

Commonwealth v. Gatling, 807 A.2d 890, 900 (Pa. 2002).              The Court

warned against an overly broad definition of “single criminal act” based on

its “concern . . . to avoid giving criminals a ‘volume discount’ on crime.” Id.

at 897 (quoting Commonwealth v. Anderson, 650 A.2d 20, 22 (Pa.

1994)).

      Here, although there is evidence that Oree engaged in two separate




                                     -5-
J-S95027-16



criminal acts,3 the Commonwealth did not establish a third act to form the

basis of the sexual assault conviction. The Commonwealth argues that there

were at least three criminal acts because “[t]he sexual assault continued

throughout the night.” Cmwlth’s Br. at 7. However, there must be a break

in the “overarching chain of events.”            Gatling, 807 A.2d at 900.   The

Commonwealth’s contention that the sexual assault continued throughout

the night does not indicate a significant temporal lapse or a change in Oree’s

criminal intent that would support a “break” between two separate criminal

acts. Id. Thus, the trial court, based on its own factual findings, erred in

imposing a sentence on the sexual assault conviction, which merged with the

rape and IDSI convictions.

       Remand, however, is not necessary because the trial court imposed

concurrent sentences of 10 years for sexual assault and IDSI. Vacating the

judgment of sentence for sexual assault does not affect the overall

sentencing scheme. See Commonwealth v. Lomax, 8 A.3d 1264, 1268-

69 (Pa.Super. 2010) (finding remand not required when vacating judgment

of sentence would not disturb overall sentencing scheme).



____________________________________________


       3
          Oree first forced [Victim] to perform oral sex on him until he
“ejaculated in [Victim]’s mouth and told her to swallow it.” 1925(a) Op. at
2-3. Next, Oree “led her to his bed [and told her] to remove her pajamas
. . . [and] then put his penis inside [her].” Id. at 3.




                                           -6-
J-S95027-16


      Next, Oree claims that the verdicts were against the weight of the

evidence. This court reviews a weight of the evidence claim for an abuse of

discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “One

of the least assailable reasons for granting or denying a new trial is the

lower court’s conviction that the verdict was or was not against the weight of

the evidence.”    Id. (quoting Commonwealth v. Widmer 744 A.2d 745,

753 (Pa. 2000)). “Because the trial judge has had the opportunity to hear

and see the evidence presented, an appellate court will give the gravest

consideration to the findings and reasons advanced by the trial judge when

reviewing a trial court’s determination that the verdict is against the weight

of the evidence.” Id.

      Oree claims the verdict was against the weight of the evidence

because Victim gave inconsistent descriptions of the events when she stated

that Oree was on top of her the entire night but then testified it was only for

about two hours.    Oree further claims Victim’s testimony that he violently

handled and hurt her are not credible because there were no bruises or

injuries apparent during her examination. However, the trial court, as the

fact-finder was free to credit Victim’s testimony.     See Commonwealth v.

Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (credibility determination “lies

solely within the province of the factfinder”); Commonwealth v. DeJesus,

860 A.2d 102, 107 (Pa.Super. 2004) (“The weight of the evidence is

exclusively for the finder of fact, which is free to believe all, part, or none of


                                      -7-
J-S95027-16


the evidence, and to assess the credibility of the witnesses.”).     The trial

court did not abuse its discretion when it found the verdict was not against

the weight of the evidence.

      Finally, Oree challenges the discretionary aspects of his sentence,

arguing that the trial court failed to state on the record its reasons for

imposing a sentence in excess of the guideline range. However, Oree has

waived this claim by failing to raise it in his Pennsylvania Rule of Appellate

Procedure 1925(b) statement.      See Commonwealth v. Lord, 719 A.2d

306, 309 (Pa. 1998) (“Any issues not raised in a [Rule] 1925(b) statement

will be deemed waived.”).

      Judgment of sentence for sexual assault vacated.          Judgment of

sentence affirmed as to the remaining convictions.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




                                    -8-
