J-A08026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER ADAM RYERSE

                            Appellant               No. 1037 MDA 2014


             Appeal from the Judgment of Sentence of May 8, 2014
                In the Court of Common Pleas of Centre County
               Criminal Division at No.: CP-14-CR-0001366-2013


BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                              FILED MAY 08, 2015

       Christopher Adam Ryerse appeals the judgment of sentence entered

on May 8, 2014. We affirm.

       On the evening of April 10, 2013, Ryerse, the victim, and several

others met to socialize and drink at the Super 8 Motel in State College,

Pennsylvania. Ryerse and the victim had met a few times before that night.

At some point during the evening, the victim became ill, vomited, and

passed out in the bathroom. See Notes of Testimony (“N.T.”), 1/13/2014,

at 58-61. Her friends tried to provide assistance but she was unable to walk

or talk. Ryerse entered the bathroom and held her in his arms but she could

not respond. Id. at 63-65. The victim went in and out of consciousness,

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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but later remembered brief moments of that night, including that Ryerse

removed her clothing and underwear, touched her genitalia, placed his

mouth on her breasts, and penetrated her vaginally and anally. Id. at 66-

69. She did not consent, nor could she move or speak. Id. at 70.

      The next morning, the victim woke up naked and in bed with Ryerse.

She retrieved her clothes and left. Id. at 71-74. She reported the incident

to the authorities and sought medical treatment.      Id. at 78. Her clothing

was tested and Ryerse’s semen was found on her underwear.

      On January 13, 2014, a jury convicted [Ryerse] of one count of
      Rape (18 Pa.C.S.A. § 3121(a)(3)); one count of Sexual Assault
      (18 Pa.C.S.A. § 3124.1); and one count of Indecent Assault (18
      Pa.C.S.A. § 3126(a)(4)). The jury found [Ryerse] not guilty of
      one count of Involuntary Deviate Sexual Intercourse (18
      Pa.C.S.A. § 3123(a)(3)).       [Ryerse] was sentenced [to an
      aggregate sentence of not less than ten nor more than twenty
      years’ incarceration] on May 8, 2014. [Ryerse] filed a Post-
      Sentence Motion for Modification of Sentence of May 19, 2014,
      arguing th[e trial c]ourt erred in sentencing [Ryerse] on both the
      Rape and Sexual Assault convictions. Th[e trial c]ourt denied
      [Ryerse’s] Motion on May 23, 2014. [Ryerse] filed the instant
      appeal on June 19, 2014.

Trial Court Opinion (“T.C.O.”), 8/15/2014, at 1. Pursuant to the trial court’s

order, Ryerse filed a statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b) on July 21, 2014, and the trial court issued its

Pa.R.A.P. 1925(a) opinion on August 15, 2013.

      Ryerse presents two questions for our review:

      1.    Did the trial court err in drawing a specific conclusion as to
      the intent of the jury when it found [Ryerse] guilty of a general
      count of sexual assault?


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      2.   Due to the generality of the jury’s verdict of guilty on the
      count on sexual assault, does the sentence on sexual assault
      merge with the sentence on rape?

Ryerse’s Brief at 5.

      We begin with Ryerse’s second issue, in which he contends that his

rape conviction and sexual assault conviction should have merged for

sentencing purposes.    Id. at 5, 14-16.    He requests that we vacate his

sentence as it stands. Id. at 17. We disagree.

      Whether [an a]ppellant’s convictions merge for sentencing is a
      question    implicating   the   legality  of  [the]    sentence.
      Consequently, our standard of review is de novo and the scope
      of our review is plenary. The best evidence of legislative intent
      is the words used by the General Assembly. Further, this Court
      must, whenever possible, give effect to all provisions of a
      statute, 1 Pa.C.S. § 1921(a), and unless a phrase has a
      technical, peculiar, or otherwise defined meaning, that phrase
      must be construed according to its common and approved
      usage. 1 Pa.C.S. § 1903(a). Of course, this Court presumes
      that the General Assembly does not intend absurd or
      unreasonable results when it enacts a statute.        1 Pa.C.S.
      § 1922(1).

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009) (case citations

and internal quotation marks omitted).     Furthermore, Section 9765 of the

Judicial Code provides that:

      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.




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42 Pa.C.S.A. § 9765.    Thus, Section 9765 permits merger if two elements

are satisfied: (1) all of the statutory elements of one offense are included in

the other, and (2) the crimes arise from a single criminal act.

      The crime of sexual assault is defined as follows: “Except as provided

in section 3121 (relating to rape) or 3123 (relating to involuntary deviate

sexual intercourse), a person commits a felony of the second degree when

that person engages in sexual intercourse or deviate sexual intercourse with

a complainant without the complainant’s consent.” 18 Pa.C.S.A. § 3124.1.

Ryerse argues that his conviction for sexual assault must merge with his

rape conviction because he was acquitted of involuntary deviate sexual

intercourse.

       Ryerse was convicted of rape under subsection (a)(3), which

provides: “A person commits a felony of the first degree when the person

engages in sexual intercourse with a complainant . . . [w]ho is unconscious

or where the person knows that the complainant is unaware that the sexual

intercourse is occurring.” 18 Pa.C.S.A. § 3121(a)(3). Ryerse was acquitted

of involuntary deviate sexual intercourse, subsection (a)(3), which provides:

“A person commits a felony of the first degree when the person engages in

deviate sexual intercourse with a complainant . . . who is unconscious or

where the person knows that the complainant is unaware that the sexual

intercourse is occurring[.]”   18 Pa.C.S.A. § 3123(a)(3).    “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

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the offenses, [our Supreme Court has] conclude[d] that sexual assault

constitutes a lesser-included offense of these crimes.” Commonwealth v.

Buffington, 828 A.2d 1024, 1032 (Pa. 2003); see also 18 Pa.C.S.A.

§ 3101 (definitions).

      Therefore, Ryerse maintains that, because he was acquitted of

involuntary deviate sexual intercourse and the jury did not issue a specific

verdict as to which acts informed the rape and sexual assault charges, his

sexual assault conviction must be a lesser-included offense of rape for

purposes of merging for sentencing as a matter of law. See Ryerse’s Brief

at 11-14.

      Our merger jurisprudence is rooted in the protection against
      double jeopardy provided by the United States and the
      Pennsylvania Constitutions. See Baldwin, supra at 836; see
      also U.S. Const. amend. V (“nor shall any person be subject for
      the same offence to be twice put in jeopardy of life or limb”);
      Pennsylvania Const. Art. 1, § 10 (“No person shall, for the same
      offense, be twice put in jeopardy of life or limb”). However, our
      Supreme Court has long recognized that “the same facts may
      support multiple convictions and separate sentences for each
      conviction except in cases where the offenses are greater and
      lesser included offenses.” Commonwealth v. Anderson, 538
      Pa. 574, 650 A.2d 20, 22 (Pa. 1994). The Court in Anderson
      noted its continuing concern to avoid giving criminals a “volume
      discount” on crime. Id.

Commonwealth v. Calhoun, 52 A.3d 281, 284-85 (Pa. Super. 2012)

(footnote omitted). Furthermore, we have held that “[w]hen an acquittal on

one count in an indictment is inconsistent with a conviction on a second

count, the court looks at the acquittal as no more than the jury’s assumption

of power which they had no right to exercise, but to which they were

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disposed through lenity.” Commonwealth v. Frisbie, 889 A.2d 1271, 1273

(Pa. Super. 2005).    Accordingly, in the instant case, Ryerse’s acquittal of

involuntary deviate sexual intercourse is not dispositive of whether his

sexual assault conviction is a lesser-included offense of rape.

      Even if we conclude that Ryerse has satisfied the first element of

merger, that sexual assault is a lesser-included offense of rape, he has not

demonstrated the second element, that the offenses arise from a single

criminal act. See 42 Pa.C.S.A. § 9765.

      “[I]n order to support the imposition of more than one sentence, it

must be found that the defendant’s conduct constituted more than one

injury to the Commonwealth.”        Commonwealth v. Rhoads, 636 A.2d

1166, 1168 (Pa. Super. 1994).         Here, the victim testified to multiple

instances of penetration, both vaginal and anal, that occurred while she

went in and out of consciousness and was unable to consent. N.T. at 66-70.

Therefore, the sexual assault conviction and rape conviction cannot be

conclusively determined to “arise from a single criminal act.” 42 Pa.C.S.A.

§ 9765.   Cf. Commonwealth v. Lomax, 8 A.3d 1264, 1268 (Pa. Super.

2010) (holding that sentences for rape of a child and indecent assault

merged where they arose from the same, single act of penetration).

      Accordingly, Ryerse’s argument that his sexual assault conviction

must merge with his rape conviction as a matter of law is contradicted by

the record, and does not merit relief.     See Baldwin, 985 A.2d at 833;

Calhoun, 52 A.3d at 284-85.

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      Returning to Ryerse’s first issue, he contends that the trial court erred

“in drawing a specific conclusion as to the intent of the jury when it found

[him] guilty of a general count of sexual assault.” Ryerse’s Brief at 5.

      In its opinion, the trial court stated: “The jury found [Ryerse] not

guilty of Involuntary Deviate Sexual Intercourse not because they did not

believe the anal intercourse did not occur, but because the victim was not

unconscious during the act and was aware the act was occurring, although

she could not move or speak.” T.C.O. at 3.

      Because the court did not err in declining to merge Ryerse’s

convictions for rape and sexual assault on more general grounds—that the

jury is entitled to render an inconsistent verdict—the trial court did not need

to infer the specific intent of the jury as to its verdict. However, we need

not address whether the trial court improperly drew a specific conclusion as

to the intent of the jury. We are not constrained by the rationale of the trial

court, and may affirm Ryerse’s judgment of sentence on any basis.          See

Commonwealth v. Boyles, 104 A.3d 591, 596 (Pa. Super. 2014). Thus,

this issue does not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/8/2015


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