J-S14012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
                                               :
    JOSE LUIS FLORES-MEDINA                    :
                                               :
                      Appellant                :       No. 1091 MDA 2016

              Appeal from the Judgment of Sentence June 6, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003446-2015


BEFORE:      GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 28, 2017

        Appellant, Jose Luis Flores-Medina, appeals from the judgment of

sentence entered in the Lancaster County Court of Common Pleas, following

his jury trial convictions for rape, unlawful contact with a minor, and

corruption of minors.1        We affirm Appellant’s convictions but vacate and

remand for resentencing on all counts.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises two issues for our review:

____________________________________________


1
    18 Pa.C.S.A. §§ 3121(a)(1); 6318(a)(1); 6301(a)(1)(ii), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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         WAS THE EVIDENCE PRESENTED BY THE COMMONWEALTH
         INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT
         THAT [APPELLANT] COMMITTED THE OFFENSE OF
         UNLAWFUL CONTACT WITH A MINOR, WHERE THE
         EVIDENCE DID NOT ESTABLISH THAT [APPELLANT] WAS
         INTENTIONALLY IN CONTACT WITH [VICTIM] FOR THE
         PURPOSE OF ENGAGING IN AN ACTIVITY PROHIBITED
         UNDER CHAPTER 31?

         WERE    THE    EVIDENCE   PRESENTED    BY   THE
         COMMONWEALTH AND THE TRIAL COURT’S CHARGE TO
         THE JURY INSUFFICIENT TO SUSTAIN [APPELLANT’S]
         CONVICTION OF CORRUPTION OF MINORS, GRADED AS A
         THIRD DEGREE FELONY, WHERE THERE WAS NO
         EVIDENCE [APPELLANT] CORRUPTED THE MORALS OF A
         MINOR BY ANY COURSE IN VIOLATION OF CHAPTER 31,
         AND THE JURY WAS NOT INSTRUCTED THAT IT MUST
         FIND THE “COURSE OF CONDUCT” ELEMENT NECESSARY
         TO SUSTAIN THE CONVICTION AS A THIRD DEGREE
         FELONY?

(Appellant’s Brief at 5).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Donald R.

Totaro, we conclude Appellant’s first issue merits no relief. As to Appellant’s

second issue, we agree with Appellant that relief is due.      The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed August 30, 2016, at 2-9) (finding:

(1) Victim testified that on April 11, 2015, she was sleeping at her aunt’s

house on air mattress in bedroom occupied by Appellant and Victim’s aunt;

Appellant placed his hand over Victim’s mouth and inserted his penis inside

her vagina; on following morning, Victim reported incident to her mother

and grandmother; Victim went to hospital for medical examination; Victim

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reported incident to nurse examiner during examination; examination of

Victim revealed tenderness and injuries, laceration of skin at bottom of

vagina, and abrasion between Victim’s vaginal wall and hymen, indicating

forceful intercourse; Victim made similar report of incident to program

supervisor at Lancaster County Children’s Alliance; Appellant provided buccal

swab to police, which was later sent for DNA analysis; sperm found on

Victim from sample collected at hospital matched Appellant’s DNA; Victim

was 17 years old at time of incident, and Appellant was 38 years old;

testimony established that Appellant put his hand over Victim’s mouth to

prevent her from speaking while he committed rape; from this evidence,

jury could reasonably infer Appellant engaged in type of contact and

communication, either verbal or physical, necessary to sustain Appellant’s

conviction for unlawful contact with minor; (2) Appellant assaulted Victim on

one occasion; corruption of minors statute at 18 Pa.C.S.A. § 6301(a)(1)(ii)

requires “course of conduct” of sexual offenses which corrupts or tends to

corrupt morals of minor; evidence was insufficient to sustain corruption of

minors conviction graded as third-degree felony; but, evidence was sufficient

to support conviction for corruption of minors graded as first-degree

misdemeanor under Section 6301(a)(1)(i)).2 Nevertheless, for the following

reasons, we disagree with the trial court to the extent it states resentencing
____________________________________________


2
  The Commonwealth agrees the evidence was insufficient to sustain a
conviction for corruption of minors graded as a third-degree felony.



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is unnecessary because the corruption of minors’ conviction merged with the

rape by forcible compulsion conviction for sentencing purposes.

      Whether crimes merge for sentencing purposes implicates the legality

of the sentence, which this Court can raise sua sponte. Commonwealth v.

Tanner, 61 A.3d 1043, 1046 (Pa.Super. 2013). Therefore, our standard of

review is de novo and our scope of review is plenary.          Id.   Merger of

sentences is governed generally by Section 9765 of the Sentencing Code,

which provides:

         § 9765. Merger of sentences

         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.

42 Pa.C.S.A. § 9765. “[T]he language of the legislature is clear. The only

way two crimes merge for sentencing is if all elements of the lesser offense

are included within the greater offense.”    Commonwealth v. Coppedge,

984 A.2d 562, 564 (Pa.Super. 2009) (stating cases decided before effective

date of Section 9765 are not instructive in merger analysis; relevant

question in merger analysis now is whether person can commit one crime

without also committing other crime, regardless of whether facts of

particular case comprise both crimes; if elements of crimes differ, i.e., if one

offense can be committed without committing other offense, crimes do not

merge under legislative mandate of Section 9765) (emphasis in original).

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      The Crimes Code defines the offenses of rape and corruption of

minors, in relevant part, as follows:

         § 3121. Rape

         (a)    Offense defined.—A person commits a felony of
         the first degree when the person engages in sexual
         intercourse with a complainant:

         (1)    By forcible compulsion.

                                  *      *    *

18 Pa.C.S.A. § 3121(a)(1).

         § 6301. Corruption of minors

         (a)    Offense defined.—

         (1)(i) Except as provided in subparagraph (ii), whoever,
         being of the age of 18 years and upwards, by any act
         corrupts or tends to corrupt the morals of any minor less
         than 18 years of age, or who aids, abets, entices or
         encourages any such minor in the commission of any
         crime, or who knowingly assists or encourages such minor
         in violating his or her parole or any order of court, commits
         a misdemeanor of the first degree.

         (ii)    Whoever, being of the age of 18 years and upwards,
         by any course of conduct in violation of Chapter 31
         (relating to sexual offenses) corrupts or tends to corrupt
         the morals of any minor less than 18 years of age, or who
         aids, abets, entices or encourages any such minor in the
         commission of an offense under Chapter 31 commits a
         felony of the third degree.

                                  *      *    *

18 Pa.C.S.A. § 6301(a)(1)(i), (ii).

      Instantly, the court merged for sentencing purposes Appellant’s

conviction for corruption of minors graded as a third-degree felony with his

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rape by forcible compulsion conviction graded as a first-degree felony.    A

conviction for rape by forcible compulsion requires a person to engage in

sexual intercourse with a complainant by forcible compulsion.        See 18

Pa.C.S.A. § 3121(a)(1).   A conviction for corruption of minors as a third-

degree felony requires a person of 18 years and upwards to corrupt or

tend to corrupt the morals of any minor less than 18 years of age by any

course of conduct in violation of Chapter 31 (relating to sexual offenses)

or aid, abet, entice or encourage a minor in the commission of an offense

under Chapter 31. See 18 Pa.C.S.A. § 6301(a)(1)(ii). The plain language of

the respective statutes demonstrates sentencing merger of these crimes is

inappropriate, where corruption of minors under this subsection has both an

age as well as a “course of conduct” requirement; rape does not. Therefore,

all of the statutory elements of corruption of minors under Section

6301(a)(1)(ii) are not included in the statutory elements of rape by forcible

compulsion.   See 42 Pa.C.S.A. § 9765.       In other words, a person can

commit rape by forcible compulsion without also committing corruption of

minors under Section 6301(a)(1)(ii) and vice versa.        See Coppedge,

supra.   Thus, the court erred when it merged the corruption of minors’

conviction graded as a third-degree felony with Appellant’s conviction for

rape by forcible compulsion.

     A conviction for corruption of minors as a first-degree misdemeanor

requires a person of 18 years and upwards, by any act, to corrupt or tend


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to corrupt the morals of any minor less than 18 years of age; or aid,

abet, entice or encourage a minor in the commission of any crime; or

knowingly assist or encourage a minor less than 18 years of age in

violating his or her parole or any order of court.        See 18 Pa.C.S.A. §

6301(a)(1)(i).   Corruption of minors under this subsection has an age

requirement; rape does not.     Therefore, all of the statutory elements of

corruption of minors under Section 6301(a)(1)(i) are not included in the

statutory elements of rape by forcible compulsion.        See 42 Pa.C.S.A. §

9765. The fact that the rape conviction in this case involved a victim of less

than 18 years of age is irrelevant to the merger analysis because, in general,

a person can commit rape by forcible compulsion without also committing

corruption of minors under Section 6301(a)(1)(i), and vice versa.        See

Coppedge, supra. Thus, Appellant’s corruption of minors’ conviction, even

when graded as a first-degree misdemeanor, similarly will not merge with

Appellant’s conviction for rape by forcible compulsion.

      Based on the foregoing, we vacate the entire judgment of sentence

and remand for resentencing on all counts. See Commonwealth v. Hicks,

151 A.3d 216 (Pa.Super. 2016) (explaining where trial court errs in its

sentence in multi-count case, we will vacate entire sentence to allow trial

court to re-structure its sentencing plan).   Upon remand, the court must

regrade Appellant’s conviction for corruption of minors as a first-degree

misdemeanor, because the Commonwealth did not prove the “course of


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conduct” required to grade the offense as a third-degree felony.   Further,

when properly graded as a first-degree misdemeanor, Appellant’s corruption

of minors’ conviction shall not merge for resentencing purposes with his

conviction for rape by forcible compulsion.       Accordingly,   we affirm

Appellant’s convictions but vacate the judgment of sentence and remand for

resentencing on all counts.

      Judgment of sentence vacated; case remanded with instructions.

Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




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