J-S43039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHAIRIL AMRIL SARAGIH

                            Appellant                  No. 128 EDA 2015


            Appeal from the Judgment of Sentence August 14, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0000357-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED AUGUST 26, 2015

        Appellant, Chairil Amril Saragih, appeals from the judgment of

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

his jury trial convictions for solicitation of involuntary deviate sexual

intercourse (“IDSI”) with a person less than sixteen (16) years of age,

attempt to commit involuntary deviate sexual intercourse with a person less

than sixteen (16) years of age, and criminal use of a communication facility.1

We affirm in part and vacate in part.

        The trial court’s Rule 1925(a) opinion sets forth the relevant facts and

procedural history of this case; it also incorporates the findings of fact and

conclusions of law of the suppression court, filed April 25, 2014, 1-3.
____________________________________________


1
    18 Pa.C.S.A. §§ 902(a), 901(a), 7512(a), respectively.
J-S43039-15


Therefore, we only briefly summarize them as follows. Sergeant Smith is an

undercover police officer working for the Delaware County Internet Crimes

Against Children task force.           In this capacity, he frequently monitors

websites like Craigslist, looking for people soliciting sexual encounters with

minors. On November 1, 2013, Sergeant Smith replied to Appellant’s post

on Craigslist, which indicated Appellant was looking for a sexual encounter

with “young college boys.” Sergeant Smith posed as a fifteen-year-old boy

named “Sam.”        Following several graphic email communications, Appellant

and “Sam” arranged to meet on November 8, 2013, at an ice-skating rink in

Aston, PA. Appellant and “Sam” had previously agreed via email that they

would participate in sex acts at this meeting.

        Appellant arrived at the ice-skating rink, and the police apprehended

him, handcuffed him, and took him into custody.             Appellant waited in

handcuffs at the station for fifteen minutes while Sergeant Smith gathered

his paperwork for the case.          Sergeant Smith and another detective then

escorted Appellant to an interview room, where Sergeant Smith read

Appellant his Miranda2 rights before beginning the interview.         Appellant

demonstrated a thorough understanding of the English language when he

waived his Miranda rights. During the interview, Appellant admitted he had

sent the sexually explicit emails to “Sam,” knowing “Sam” was fifteen years

____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).



                                           -2-
J-S43039-15


old.

       Procedurally, the suppression court heard argument on April 24, 2014,

regarding Appellant’s pre-trial motion to suppress the statements he made

in the police station. Ultimately, the court denied the motion to suppress in

an order issued on April 25, 2014. The case proceeded to a jury trial on May

7, 2014, and the jury found Appellant guilty of solicitation of IDSI, attempt

to commit IDSI, and criminal use of a communication facility. On August 14,

2014, the court sentenced Appellant to three (3) to six (6) years’

incarceration each for the solicitation of IDSI conviction and the attempt to

commit IDSI conviction, to run concurrently.       The court also sentenced

Appellant to one (1) year of probation for the criminal use of a

communication facility conviction, to run consecutively to the other

sentences.    On August 22, 2014, Appellant timely filed a post-sentence

motion contesting the sufficiency and weight of the evidence, and alleging

various suppression claims. The court held a hearing on Appellant’s motion

on September 17, 2014, and denied it on September 25, 2014. Appellant

timely filed a notice of appeal on October 24, 2014. On November 13, 2014,

the court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b) and, with one extension,

Appellant timely complied.

       Appellant raises two issues for our review on appeal:

         WHETHER THE [TRIAL] COURT ERRED WHEN IT REFUSED
         TO SUPPRESS THE STATEMENTS MADE BY [APPELLANT]

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J-S43039-15


         SINCE THEY WERE SUPPLIED UNDER COERCIVE
         CONDITIONS, AND BECAUSE THE STATEMENTS AND
         MIRANDA WAIVER WERE NOT KNOWING, VOLUNTARY,
         OR INTELLIGENT?

         WHETHER THE CONVICTIONS AND JUDGMENT OF
         SENTENCE FOR SOLICITATION TO COMMIT INVOLUNTARY
         DEVIATE SEXUAL INTERCOURSE (PERSON LESS THAN AGE
         SIXTEEN), AND ATTEMPTED INVOLUNTARY DEVIATE
         SEXUAL INTERCOURSE (PERSON LESS THAN AGE
         SIXTEEN) ARE ILLEGAL SINCE A PERSON MAY NOT BE
         CONVICTED OF MORE THAN ONE OF THESE INCHOATE
         OFFENSES FOR ALLEGED CONDUCT THAT IS DESIGNED
         TO CULMINATE IN THE SAME CRIME?

(Appellant’s Brief at 5).

      In his first issue, Appellant argues the circumstances of his interview

with the police at the station constituted unlawful coercion.        Appellant

maintains the police knew Appellant did not fully understand English, but

they failed to provide Appellant with a translator. Appellant claims the police

kept him in tight handcuffs during the entire interview process.     Appellant

contends the police instructed him to discuss the emails at issue. Appellant

asserts that the trial court should not have considered his Miranda waiver

knowing, intelligent, or voluntary under these circumstances.        Appellant

concludes this Court must reverse the trial court’s suppression ruling and

grant Appellant a new trial. We disagree.

      “Our standard of review in addressing a challenge to a trial court’s

denial of a suppression motion is limited to determining whether the factual

findings are supported by the record and whether the legal conclusions

drawn from those facts are correct.” Commonwealth v. Jones, 874 A.2d

                                     -4-
J-S43039-15


108, 115 (Pa.Super. 2005) (quoting Commonwealth v. LaMonte, 859

A.2d 495, 499 (Pa.Super. 2004)).

        [W]e may consider only the evidence of the prosecution
        and so much of the evidence for the defense as remains
        uncontradicted when read in the context of the record as a
        whole. Where the record supports the findings of the
        suppression court, we are bound by those facts and may
        reverse only if the court erred in reaching its legal
        conclusions based upon the facts.

Jones, supra at 115 (quoting Commonwealth v. Grundza, 819 A.2d 66,

67 (Pa.Super. 2003), appeal denied, 574 Pa. 764, 832 A.2d 435 (2003)).

     Generally,   statements   made    during   custodial   interrogation   are

presumptively involuntary, unless the police first inform the accused of his

Miranda rights.     Commonwealth v. DiStefano, 782 A.2d 574, 579

(Pa.Super. 2001), appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). “[T]he

Miranda safeguards come into play whenever a person in custody is

subjected to either express questioning or its functional equivalent.”

Commonwealth v. Gaul, 590 Pa. 175, 180, 912 A.2d 252, 255 (2006),

cert. denied, 552 U.S. 939, 128 S.Ct. 43, 169 L.Ed.2d 242 (2007). Whether

a person is in custody depends on “whether the person is physically denied

[his] freedom of action in any significant way or is placed in a situation in

which [he] reasonably believes that [his] freedom of action or movement is

restricted by the interrogation.”   Commonwealth v. Williams, 941 A.2d

14, 30-31 (Pa.Super. 2008) (en banc) (quoting Commonwealth v. Clayton

Williams, 539 Pa. 61, 74, 650 A.2d 420, 427 (1994)).


                                     -5-
J-S43039-15


     Custodial interrogation is “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way.” Miranda, supra at 444, 86

S.Ct at 1612, 16 L.Ed.2d at ___.      “Interrogation occurs where the police

should know that their words or actions are reasonably likely to elicit an

incriminating response from the suspect.” Williams, supra at 30 (quoting

Commonwealth v. Ingram, 814 A.2d 264, 271 (Pa.Super. 2002), appeal

denied, 573 Pa. 671, 821 A.2d 586 (2003)).

     We also observe:

          The determination of whether a confession is voluntary is a
          conclusion of law and, as such, is subject to plenary
          review. Moreover, the totality of the circumstances must
          be considered in evaluating the voluntariness of a
          confession. The determination of whether a defendant has
          validly waived his Miranda rights depends upon a two-
          prong analysis: (1) whether the waiver was voluntary, in
          the sense that defendant’s choice was not the end result of
          governmental pressure, and (2) whether the waiver was
          knowing and intelligent, in the sense that it was made with
          full comprehension of both the nature of the right being
          abandoned and the consequence of that choice.

Commonwealth v. Mitchell, 588 Pa. 19, 53-54, 902 A.2d 430, 451

(2006), cert. denied, 549 U.S. 1169, 127 S.Ct. 1126, 166 L.Ed.2d 897

(2007).     “Only if the totality of the circumstances surrounding the

interrogation reveals both an uncoerced choice and the requisite level of

comprehension may a court properly conclude that the Miranda rights have

been waived.     Commonwealth v. Cephas, 522 A.2d 63, 65 (Pa.Super.

1987), appeal denied, 516 Pa. 616, 531 A.2d 1118 (1987), cert. denied, 484

                                     -6-
J-S43039-15


U.S. 981, 108 S.Ct. 495, 98 L.Ed.2d 494 (1987) (emphasis added).                      The

Commonwealth has the burden to prove “by a preponderance of the

evidence that the waiver is voluntary, knowing, and intelligent.” Id.

     When assessing voluntariness the court should look at the following

factors: (1) the duration and means of the interrogation; (2) the physical

and psychological state of the accused; (3) the conditions attendant to the

detention; (4) the attitude of the interrogator; and (5) any and all other

factors WHICH could drain a person’s ability to withstand suggestion and

coercion. Commonwealth v. Nester, 551 Pa. 157, 164, 709 A.2d 879, 883

(1998).   See also Commonwealth v. Sanabria, 478 Pa. 22, 385 A.2d

1292 (1978) (holding appellant’s waiver of his Miranda rights was knowing,

voluntary,   and    intelligent    despite     appellant’s   claimed     difficulty    in

understanding English; appellant’s ability to communicate effectively in

English   with   police   before   and   after   his   arrest   belied   his   claims);

Commonwealth v. Padilla, 854 A.2d 549 (Pa.Super. 2004) (holding

appellant possessed sufficient fluency in English to understand verbal

communication despite his inability to read or write English; statements

made after police read Miranda warnings in English did not require

suppression).

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

applicable law, and the well-reasoned opinion of the Honorable John P.

Capuzzi, Sr., we conclude Appellant’s first issue merits no relief. The trial


                                         -7-
J-S43039-15


court opinion comprehensively discusses and properly disposes of Appellant’s

first question.   (See Trial Court Opinion, filed January 8, 2015, at 13,

incorporating suppression court’s Findings of Fact and Conclusions of Law,

filed April 25, 2014, at 1-5) (finding: police did not question Appellant prior

to recorded interview; audio recording of interview clearly demonstrated

Appellant had no difficulty understanding or communicating in English;

recording also verified police read Appellant his Miranda rights prior to any

questioning; police did not promise Appellant anything or threaten him to

give a statement; police loosened Appellant’s handcuffs after he complained

they were too tight; Appellant voluntarily gave statement to police regarding

sexually explicit emails he sent and his plan to meet with “Sam” to engage

in sexual activity; absence of translator did not render Appellant’s confession

unknowing or coerced; Appellant’s waiver of his Miranda rights was

knowing, intelligent, and voluntary).      The record supports the court’s

conclusion that Appellant’s statements were knowingly, intelligently, and

voluntarily made. Thus, as to Appellant’s first issue, we affirm on the basis

of the trial court opinions.

      In his second issue, Appellant argues his attempt and solicitation

convictions stem from conduct designed to culminate in the commission of

the same crime. Appellant contends Pennsylvania law prohibits sentencing

of a defendant on more than one inchoate conviction. Appellant maintains

the court imposed a concurrent sentence of three (3) to six (6) years on


                                     -8-
J-S43039-15


both the attempt and the solicitation convictions.     Appellant concludes the

sentence is illegal, and this Court must vacate the sentence on Appellant’s

attempt conviction, as the trial court has recommended. We agree.

      “A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence. Therefore, 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), appeal denied, 621 Pa. 655, 72

A.3d 602 (2013). “In evaluating a trial court’s application of a statute, our

standard of review is plenary and is limited to determining whether the trial

court committed an error of law.”      Commonwealth v. Poland, 26 A.3d

518, 523 (Pa.Super. 2011), appeal denied, 614 Pa. 702, 37 A.3d 1195

(2012).

      Section 906 of the Crimes Code provides:

          § 906.     Multiple convictions of inchoate crimes
          barred

          A person may not be convicted of more than one of the
          inchoate crimes of criminal attempt, criminal solicitation or
          criminal conspiracy for conduct designed to commit or to
          culminate in the commission of the same crime.

18 Pa.C.S.A. § 906. In this context, “When the law speaks of a ‘conviction,’

it means a judgment, and not merely a verdict, which in common parlance

is called a conviction.” Commonwealth v. Maguire, 452 A.2d 1047, 1049

(Pa.Super. 1982) (emphasis in original). “When a trial court is faced with a

jury verdict of guilty of more than one inchoate crime, it is required by


                                      -9-
J-S43039-15


Section 906 to render a judgment of sentence for no more than one of those

crimes.” Id. at 1050. “[I]nchoate crimes merge only when directed to the

commission of the same crime, not merely because they arise out of the

same incident.” Commonwealth v. Graves, 510 Pa. 423, 424, 508 A.2d

1198, 1198 (1986).      Section 906 “is designed to eliminate multiple

convictions, i.e., judgments of sentence, for conduct which constitutes

preparation for a single criminal objective.”    Commonwealth v. Grekis,

601 A.2d 1284, 1295 (Pa.Super. 1992).           But see Commonwealth v.

Jacobs, 614 Pa. 664, 39 A.3d 977 (2012) (holding appellant’s sentences for

attempt to escape and conspiracy to commit escape from prison did not

merge under Section 906, where conspiracy conviction was based on joint

plan to escape, while attempt to escape conviction involved either or both

escapes).

     “[W]here the trial court has erroneously…sentenced an appellant for

two inchoate crimes, the remedy has been either to amend the sentence…or

to remand for resentencing for either one or the other.” Maguire, supra at

1050. See also In Interest of Mark C., 489 A.2d 887 (Pa.Super. 1985)

(holding when trial court errs by sentencing appellant on both inchoate

crimes, appellate court has option either to remand for resentencing or to

amend sentence directly); Commonwealth v. Watts, 465 A.2d 1267

(Pa.Super. 1983) (vacating appellant’s judgment of sentence for one

inchoate crime and affirming judgment of sentence for other crime where


                                   - 10 -
J-S43039-15


trial court imposed concurrent sentences on each conviction).

      Instantly, the trial court observed:

         Appellant argues, pursuant to 18 Pa.C.S.A. § 906, that it
         was illegal for the jury to convict him of both criminal
         solicitation and criminal attempt to involuntary deviate
         sexual intercourse.     However, [S]ection 906 defines
         conviction as “a judgment of sentence not a finding of guilt
         by the jury,” therefore; Appellant’s argument is without
         merit.

         Next, Appellant argues that it was illegal for this [c]ourt to
         sentence him on both the criminal solicitation and criminal
         attempt to commit involuntary deviate sexual intercourse.
         This [c]ourt agrees that 18 Pa.C.S.A. § 906 is applicable.
         Therefore, this [c]ourt respectfully [re]quests that the
         judgment of sentence for Count 6: Criminal Attempt to
         Commit Involuntary Deviate Sexual Intercourse with a
         Person Less than 16 Years of Age be vacated and the rest
         of Appellant’s sentence be affirmed.

(Trial Court Opinion, filed January 8, 2015, at 12-13). We agree. The jury

properly convicted Appellant of both offenses, but the offenses should have

merged for sentencing purposes. Because the court has asked us to amend

the sentence directly by vacating the judgment of sentence for attempt to

commit IDSI, we vacate the judgment of sentence for that conviction and

affirm the judgment of sentence in all other respects.

      Judgment of sentence affirmed in part and vacated in part.




                                     - 11 -
J-S43039-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2015




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 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                           CRIMINAL


 COMMONWEALTH OF PENNSYLVANIA                     CP-23-CR-0357-2014

                      v.
               Chairil Saragih

A. Sheldon Kovach, Esquire, Deputy District Attorney, for the Commonwealth
Steven M. Pappi, Esquire, for the Appellant


                                      OPINION


Capuzzi, J.                                                           Filed: / -   8 - /5

       This is an appeal from this Court's sentence imposed on August 14, 2014. On

appeal, Appellant alleges that (1) his convictions and sentences for Criminal Attempt to

Involuntary Deviate Sexual Intercourse and Criminal Solicitation to Involuntary Deviate

Sexual Intercourse are illegal because they are both inchoate offenses; and (2) this

Court erred in suppressing the statements Appellant made to police because his

statements and Miranda waiver were supplied to police under coercive conditions and

not knowingly, intelligently, or voluntarily given. For the forthcoming reasons, this

Court's denial of Appellant's motion to suppress should be affirmed; however, this Court

agrees with Appellant that his sentence is illegal and respectfully requests that the

Superior Court vacate judgment of sentence on Count 6: Criminal Attempt to

Involuntary Deviate Sexual Intercourse and affirm the sentence for Count 1: Criminal


                                             1




                                                                                                  35
                                                                         Circulated 08/03/2015 11:53 AM




Solicitation to Involuntary   Deviate Sexual Intercourse and Count 11: Criminal Use of a

Communication Facility.


FACTUAL BASIS


       Sergeant Gary Smith has been a patrol sergeant for Aston Township Police

Department for twenty-six veers, [N.T., 5/7/2014, p. 33]. Sergeant Smith is also

employed by the Delaware County District Attorney's Office as part of the Internet

Crimes Against Children (ICAC) Task Force; a task force comprised of federal, state,

and local law enforcement who conduct online investigations, respond to complaints

from parents and other people about children being sexually exploited over the internet

and lead community education, schools, and other groups. [N.T., 5/7/2014, p. 34].

When acting in an undercover capacity online, Sergeant Smith patrols the internet for

different ads containing certain keywords, specifically adults looking for younger

children for sexual activity. [N.T., 5/7/1014, p.34].

        Sergeant Smith typically looks for these ads on Craigslist, which he describes as:

"an online company that, they have all types of personal ads, sell things, buy things,

anything you want to do, look for, purchase, learn, it's all on Craigslist." [N.T.,

5/7/2014, p. 35]. Technically, anyone can post an ad to the site; the only time there is

an age requirement is to post in the personal ad section, and at that, a person simply

has to click the box that says they are over eighteen. [N.T., 5/7/2014, p. 35]. In his

experience as an ICAC Task Force member, Sergeant Smith knows that children under

eighteen use the personal ad section. [N.T., 5/7/2014, p. 37]. Sergeant Smith accesses
                                              2
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the male for male section of the personal ads and then looks for posts about men

seeking younger men. When he finds one, Sergeant Smith replies to the add by saying

"hey, what's up" and then waits to see if the person who posted the add replies. [N.T.,

5/7/2-014, p.38].


           On November 1, 2013, Sergeant Smith was acting in his capacity as an ICAC

Task Force Agent and was browsing Craigslist, particularly the male for male personal

ad section. Sergeant Smith was acting in an undercover capacity as "Sam," a 15 year

old boy. Sergeant Smith came across a post by Appellant. In the subject line the post
                                                                                               1
read, "any young college boys, 18 to 24, need a BJ M for M, 39, Philly."                           Based on his

experience, Sergeant Smith explained that BJ meant blow job. The body of the post

said, "looking for college boys, 18 to 24, y-o who need BJ to completion, hung· and

uncut, sit back and relax, enjoy my mouth and shoot that load down my throat, no

recip necessary.' [N.T., 5/7/2014 p. 42].

           Sergeant Smith replied by clicking on the ad, which directs you to the poster's

email address associated with the post. [N.T., 5/7/2014 p. 43]. Sergeant Smith's

account is associated with the email address SammyBPA99@gmail.com [N.T., 5/7/2014

p. 48]. Appellant's craigslist email was: 36MD4-4165539652@peers.craiglist.org . The

following conversation ensued between Sergeant Smith as "Sam" and Appellant:


1
    Basedon his training and experience, Sergeant Smith explained that even though the post said seeking 18-24
year old males, he responded because if you put any age under 18 the post will automatically be flagged and not
permitted on the site. So, someone looking for a younger child would have to post at least 18. (N.T., 5/7/2014, p.
89).

                                                          3
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           Sam: "Hey. What's up?"

           Appellant:"Not much, man, age and stats?"
                                                                                 2
           Sam: "15, about 5'8", at 140, I'm new at this. HSU?"


           Appellant:"how big is tour dick? Cut or uncut? Have you a pie of your die? 5'7,
           155, just looking to suck." 3                                                               ·


           Sam: "I don't know never measured it, is that what you like to do?"

           Appellant: I'm looking to give BJ, period. I will suck you long and slow until you
           come in my mouth, period; I will swallow if you want me to."

           Sam: "Never done that before, really."

           Appellant:"Well if you want to, if you want to, I guess, go for it-or, if you
                                                                                             4
           want to, it come over, I will suck you and make you feel good."
           Appellant: I will suck you and make you moan and I can only it's b-r-g me to
                              5
           keep sucking.
           Sam: "Where are you from?"

           Appellant:"you?"

           Sam: Delaware County, do you know where that is?"

           Appellant:"That's far, man. Can you travel here?"

           Sam: "I don't think so because I'm too young to drive. Do you drive?"

           Appellant:"I do. Where is Delco, and send me your face pie."

           Sam: "Near 95."

           Appellant:"Can you send me your pie?"


2
    "HBU" is short for how about you.
3
    Sergeant Smith explained that he understood "tour" to mean your and "die" to mean dick. [N.T., 5/7/2014 p. 53J.
4
 Sergeant Smith testified that Appellant's misspellings did not confuse him, that the message Appellant was trying
to get across was clear. [N.T.,5/7/2014, p. 54J.
5
    Sergeant Smith took "brg" to mean beg. [N.T., 5/7/2014, p. 54].

                                                           4
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           Sam: "I can; HBU?"

           Appellant:"yes"

           Appellant:"send me your pie; I can drive to you and I can suck you in my car."

           Sam: "Okay, when I send it will you send me a picture of you so I know what
           you look like too?"



           At this point in the conversation, Sergeant Smith sent Appellant a picture of a

fellow officer when he was fifteen, marked as CW-2. Appellant also sent his picture. The

conversation continued:

           Sam: "Nice, what is your name and how old are you?"

           Appellant:"Alec, 37"
           Sam: "Hi Alec, do you know where Aston or Upper Chichester is?"

           Appellant:"Not really, maybe you can give me an address close to you; I will
           google it."
           Sam: "I hang out at a place called IceWorks on Dutton Mill Road in Aston."

           Appellant:"I need a full address to put in the GPS, what's your name, man?"

           Sam: "Sam, I should be here over the weekend and be able to get and send it
           to you."
           Appellant:"Cool. When are you usually free?"

           Appellant:"Are you ever free nighttime? Or early daytime?"

           Sam: "most nights coming up this week because of midterm exams are over."

           Sam: "days on the weekend and around 3 when I get out of school, HBU?" 6

           Appellant:"Nice, email me your address, maybe I can get a hotel room so I can
           suck you real long. You never got a BJ at all, from a girl, maybe?"

6
    Sergeant Smith testified that he was using acronyms and was trying to be brief in his responses because that his
how kids talk and people in general communicate over the internet. [N.T., 5/7/2014, p. 62].

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      Sam: "No. What's it like?"
      Appellant: "I'm only free after 5:00. I'm free all day Wednesday."

      Sam: "What kind of car do you have?"

      Appellant: "Sedan, and I don't have tinted windows. That's why I want to get a
      room, so I can suck you better."
      ~J!.ell~nt: It's good, better than jerk off, lol, can I have your email address,
      man?"
      Sam: "sure it's sammybpa99@gmail.com. What's yours?"

      Appellant: "willpleaseyou99@gmail.com."

      Sam: "Got it. Can I email you later? My mom just came home and wants to eat.
      Do you want to use Craig's List or your email?"
      Appellant: "use my email. Don't forget to email me."

      At this point, the November 1st, 2013, conversation between Appellant and

Sergeant Smith ended. The conversation started at 4:51p.m., and ended at 6:56p.m.

[N.T., 5/7/2014, p42-65].

      On the following day, Saturday, November 2, 2013, Sergeant Smith followed

Appellant's request for him to send an email. The two engaged in a brief conversation.

On Monday, November 4, 2013, the following conversation occurred between Sergeant

Smith and Appellant via their email addresses:


      Sam: "Hey"

      Appellant: "how are you?"

      Appellant: "Did you get the address of the place?"

      Sam: "I had to look it up online. It says 3100 Dutton Mill Road, Aston, PA
      19014."


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Appellant: "Thanks, when are you free and do you know any hotels around
your place?"
Sam: "I think there are a few near here. What do you want to do?"

Appellant: "I will get a room for us. I can give you a nice BJ there."

Sam: "K. I will have time Thursday or Friday night. Will you pick me up near
Iceworks?
-·        ··----------------------------···------··-··--··   ·-   ---------·-·····-   ······--·-·-···-··

Appellant:"What actually are you looking to get into?"
Sam: "I'm not sure, anything else- not sure, anything else you're into/I. will have
my bike but there is a place I can hide it right across so we don't have to take
it."
Appellant:"T, I can pick up-I'm sorry, T, I can pick you up there around 7p.m."

Sergeant: "which night?"
Appellant:"You're going to have your bike right across where? Ice works? Or
hotel?"
Sam:" From IceWorks, if that's okay. There is a business center right across the
street, unless you have a truck."
Appellant:"I am open to do whatever you want to try. You want to try anal?
You want to get fucked? Or you want to fuck?"
Appellant:"I don't have a truck. BlW, how much time can you spare? What
time do you have to go home? Or can you spend the night with me?"
Sam: "not sure, but K, do you know which night?"

Appellant:"Friday is better."

Sam: "Me, too."
Appellant:"Nice, do you know the name of a hotel close to IceWorks so I can
book it online?"                        ·
Sam: "Not sure but I know that kids from Iceworks come from all over."

Appellant:"I will try to look online © "

Appellant:"Do you want to try to get a rim job?"

Sam: "okay. But what's that?"

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           Appellant: "Can't wait to have your dick in my mouth.© Where do you want to
           come? My mouth or face? Do you want me to swallow your cum?"
           Appellant: "Rim job means I will eat out your hole"

           Sam: "Wow. K"
           Appellant: "You will like it. I will make you moan like crazy."

           Sam: "I'm sure you will."
           Appellant: "I think I want your first cum in my mouth and I will swallow it. I
           want you to sit back and relax. I will suck you till you cum. Then we can take a
           rest a bit. Then I will suck you again. This I will lay down and you can face fuck
           me, then you can shoot your load on my face. That would be fun."
           Sam: "It sounds like it, my first."
           Appellant: "Try to find some excuse to sleep over. I promise I will suck you all
           night."
           Sam: "I will have to lie and say I'm going over a friend's house, but I have to
           stay out all night."
           Appellant:"Do it man, I want your all night."

           Sam: "Can you bring me something to eat or to drink?"
           Appellant:"Sure what do you want?"

           Sam: "I like Monster, the green can, and maybe regular Doritios?
           Appellant:"I got you man, I want to make sure you have enough food and
           drink because you need energy. I'm going to do you all night, lol."
           Sam: "Funny. You mean with the Monster energy drink? But they are pretty
           good."
           Appellant:"Loi. I know. I will bring cans for you . ©" 7

           Sam: "good."
[N.T., 5/7/2014, p. 71-78].




7
    Loi stands for laugh out loud. [N.T.,5/7/2014, p. 78).

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       On Wednesday, November 6, 2014, Sergeant Smith and Appellant engaged in

another conversation, during which Sergeant Smith and Appellant confirmed that they

would still be meeting, physical descriptions of each other, and the food that Appellant

was to supply. [N.T., 5/7/2014, p. 79-80]. That same day, later in the evening, the two

engaged in a second conversation during which Appellant asked Sergeant if he was still

able to meet on Friday, which Sergeant responded that he was. They decided on

7:00p.m., at IceWorks. Appellant asked for a phone number; Sergeant Smith gave

Appellant the undercover number of Detective Joe Walsh. [N.T., 5/7/2014, p. 85].


       On Friday, November 8, 2014, the scheduled meeting date, Sergeant Smith and

fellow detectives from Delaware County CID went to Aston IceWorks, 3100 Dutton Mill

Road, Aston PA. Sergeant Smith and Detective Walsh parked across the street in the

Industrial Center. Sergeant Smith texted Appellant and instructed him to walk down

Dutton Mill Road and cross the street into the Industrial Park. [N.T., 5/7/2014, p. 93].

Sergeant Smith could see Appellant cross the street onto Turner Industrial Drive. At this

point, Sergeant Smith and the other officers present arrested Appellant. Appellant was

taken into custody. A black and green Monster can was located in his back pocket.

[N.T., 5/7/2014, p. 97].

      Appellant was transported to the Aston Township Police Department, where he

waived his Miranda rights and Sergeant Smith conducted an interview. [N.T., 5/7/2014,

p. 117].



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PROCEDURAL HISTORY

       As a result of the facts presented above, Appellant was arrested on November 8,

2014. On April 21, 2014, this Court selected a jury but did not swear the jury in. On

April 23, 2014, counsel for Appellant filed a motion to suppress alleging that the taped

confession given to police by Appellant should be suppressed because Appellant's

Miranda waiver was not knowing, voluntary, or intelligent. On April 24, 2014, Counsel

for both parties and this Court dismissed the jury until May 7, 2014 in order for this

Court to hear testimony on the suppression and to make any necessary redactions to

the taped statement.

       On April 24, 2014, this Court held a hearing on Appellant's motion to suppress.

Sergeant Gary Smith testified and this Court listened to the taped confession. On April

25, 2014, this Court denied Appellant's request and issued Findings of Fact and

Conclusions of Law.

      On May 7, 2014, a jury trial was held. Sergeant Gary Smith and Detective Joseph

Walsh testified. The jury also listened to Appellant's taped confession, in which

Appellant admits to sending and receiving those emails and that he knew Sam was

fifteen years old. Appellant was found guilty of the following offenses: Count 1:

Criminal Solicitation to Involuntary Deviate Sexual Intercourse with a Person Less than

16 Years of Age, Count 6: Criminal Attempt to Involuntary Deviate Sexual Intercourse

with a Person Less Than 16 Years of Age, and Count 11 :Criminal Use of A

Communication Facility. The jury also found that the alleged victim "Sam" was under
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the age of 16 at the time the offense occurred and that Appellant, age 45, was four or

more years older than Sam at the time the offense occurred.


       On August 14, 2014, this Court sentenced Appellant as follows: Count 1: 36-72

months in a state correctional facility; Count 6: 36-72 months in a state correctional

facility concurrent to Count 1; Count 11: 12 month's state probation consecutive to

Count 6. Appellant was not classified as a sexually violent predator. [N.T., 8/14/2014].


       On August 22, 2014, counsel for Appellant filed a post-sentence motion to vacate

the verdict for lack of sufficient evidence, to vacate the verdict because it was against

the weight of the evidence, and a motion for a new trial. This Court held a hearing on

September 17, 2014 and denied the motion on September 24, 2014.


       On October 24, 2014, counsel for Appellant filed a notice of appeal. This Court

issued a 1925(b) Order on November 12, 2014. On November 25, 2014, this Court

granted Appellant an extension of time to file his 1925(b) statement. On December 17,

2014, Appellant filed his 1925(b) statement raising two issues for appeal: (1) that his

sentence was illegal because he should not have been convicted of and sentenced on

two inchoate crimes and (2) that this Court erred in denying his motion to suppress.


APPELLANT SHOULD NOT HAVE BEEN SENTENCED ON CRIMINAL ATTEMPT
TO COMMIT INVOLUNTARY DEVIATE SEXUAL INTERCOURSE AND CRIMINAL
SOLITICATION TO COMMIT INVOLUNTARY DEVIATE SEXUAL INTERCOURSE
PURSUANT TO 18 Pa.C.S.A. § 906.
       "A person may not be convicted of more than one of the following inchoate

crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct

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designed to commit or to culminate in the commission of the same crime." 18 Pa.CS.A.

§ 906. The term of conviction in relation to section 906 means "entry of a judgment of

sentence not a finding of guilty by the jury. Commonwealth v. Grekis, 411 Pa. Super.

513, 533    (1992}. Section 906 is only applicable where conduct constitutes

preparation for a single criminal objective. Grekis, 411 Pa. Super. 533 citing

Commonwealth v. Zappacosta, 265 Pa. Super. 71, 401 A.2d 805 (1979}.

      "A person is guilty of solicitation to commit a crime if with the intent of

promoting or facilitating its commission he commands, encourages or requests another

person to engage in specific conduct which would constitute such crime or an attempt

to commit such crime or which would establish his complicity in its commission or

attempted commission." 18 Pa.CS.A.§ 902. A person commits an attempt when, with

intent to commit a specific crime, he does any act which constitutes a substantial step

toward the commission of that crime. 18 Pa.CS.A.§ 901.

       Appellant argues, pursuant to 18 Pa.C.S.A. § 906, that it was illegal for the jury

to convict him of both criminal solicitation and criminal attempt to involuntary deviate

sexual intercourse. However, section 906 defines conviction as "a judgment of sentence

not a finding of guilt by the jury," therefore; Appellant's argument is without merit.

       Next, Appellant argues that it was illegal for this Court to sentence him on both

the criminal solicitation and criminal attempt to commit involuntary deviate sexual

intercourse. This Court agrees that 18 Pa.C.S.A. § 906 is applicable. Therefore, this

Court respectfully quests that the judgment of sentence for Count 6: Criminal Attempt
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to Commit Involuntary Deviate Sexual Intercourse with a Person Less than 16 Years of

Age be vacated and the rest of Appellant's sentence be affirmed.


THIS COURT PROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS


       When addressing a party's challenge to a trials court's ruling on a motion to

suppress, the appellate court examines the suppression court's factual findings to

determine if they are supported by the record and if its legal conclusions are drawn

therefrom are correct. Commonwealth v. Scarborough, 89 A.3d 679 (Pa. Super. 2014).

       This Court issued its Findings of Fact and Conclusions of Law in support of its

denial of the motion on April 25, 2014. Attached, as "Exhibit A" is a copy of this Court's

Findings of Fact and Conclusions of Law. For purposes of this issue, this Court adopts~

its reasoning set forth in "Exhibit A."
                                                                                           -
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CONCLUSION


       For the aforementioned reasons, Appellant's sentence is illegal and Count 6

should be vacated and the rest of the sentence affirmed. In addition, this Court's denial

of Appellant's motion to suppress was proper and should be affirmed.




                                                                                         J.

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EXHIBIT A
                                                                    Circulated 08/03/2015 11:53 AM


                                                                       FILE COPY
 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                      CRIMINAL DIVISION

   COMMONWEALTHOF PENNSYLVANIA                      CP-23-CR-357·2014

                       v.
               · Chairil Saragih




                                       ORDER

      AND NOW, to wit, this 25th day of April, 2014, upon consideration of
Defendant's Motion to Suppress Defendant's statement to police and after a hearing

held on April 24, 2014, it is hereby ORDERED and DECREED that said motion is

DENIED.

   I. findings of Fact:

      1. On April 24, 2014 a suppression hearing was held. Sgt. Gary Smith testified
         rortne Commonwealth and defendant Chairil Saragih testified on his own
         behalf.

      2. Defendant, being of lndonisian decent was provided with an interpreter.
      3. Defendant contends that the audio recorded statement he provided was
         coerced as a result of police mistreatment and that his waiver of his Miranda
         rights was not knowing, voluntary and intelligent.

      4. Defendant was arrested at approximately 6: 10 p.m. on November 8, 2013 by
         the Aston Township Police Department in conjunction with the Criminal
         Investigation Division (CID) of the Delaware County Office of the District
         Attorney.

     5. The primary arresting officers were Sgt. Gary Smith if the Aston Township
        Police Department and Detective Joseph Walsh of CID.


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6. Sgt. Smith is also a member of the Delaware County Internet Crimes Against
   Children task force.

7. As a member of ICAC, Sgt. Smith is involved in investigating crimes against
   children.

8·. On November 1, 2013, using a computer, Sgt. Smith responded by way of an
    e-mail to an ad placed on Craig's List by the defendant.

9. In the ad, defendant sought young college boys looking for a "blow job."

10. Sgt. Smith identified himself as "Sam," a fifteen (15) year old male.
11. During the ensuing week, ''Sam" and the defendant communicated by e-mail.

12. It was agreed between the defendant and "Sam" that they would meet on
    November 8, 2013 at Ice Works in Aston Township.

13.At the meeting, defendant intended to perform oral sex on "Sam."

14. When defendant arrived at Ice Works, he was sent a text message directing
    him to cross the street and come into the Turner Industrial Park.
15. Defendant did as directed and was approximately 50 feet up the driveway
    when he surrounded by approximately six to eight police officers, some of
    whom were in uniform.

16. Defendant was taken down and handcuffed, placed in a patrol car and
    transported to the Aston police station.

17. There is no allegation that defendant was interrogated while in the police car,
    nor is there any assertion that defendant made any statement while in the
    police car.

18.At the Aston police station, defendant was initially placed on a bench for
   approximately 15 to 20 minutes, while Sgt. Smith retrieved his paperwork.
   One of defendant's hands was handcuffed to a ring on the wall.

19. Defendant was subsequently escorted to the interview room on the second
    floor of the police station.

20. Defendant was interviewed for about an hour and said interview was
    recorded.
21.Both Sgt. Smith and Detective Walsh conducted the interview.

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   22. Sgt. Smith testified that the defendant was read his Miranda warnings and
       signed the Miranda warning sheet before being interviewed. (CS-1).

   23. Sgt. Smith stated that his volume and tone was normal and that defendant
      .appeered normal and that defendant was not crying or sweating.

   24. Sgt. Smith testified that defendant understood the question; was not
      threatened; no promises were made to him; there was no physical contact
      with the defendant; and defendant had no injuries.

   25.At the end of the interview, defendant was asked If he was mistreated and
      that he said he felt he was, but Sgt, Smith thought this referred to the
      handcuffs being too tight

   26.Sgt. Smith believed that the defendant was not handcuffed during the
      interview, but defendant contended otherwise.

   27. Defendant testified the handcuffs were too tight and left marks for two
       months.

   28. As the audio recording was the lynchpin of defendant's motion, both the
       Assistant District Attorney and counsel for the defendant agreed that the
      court needed to listen to the audio recording.
   29. The court did listen to the relevant part of the audio recording shortly after
       the conclusion of the hearing.

  30. The audio recording demonstrated that defendant had absolutely no difficulty
      understanding or communicating in English with the officers.
II. ConcJusions of Law:

   1. Statements made during custodial interrogation are presumptively
      involuntary, unless the accused is first advised of their Miranda rights. Com v.
      Kunkle, 79 A.3d 1173 (Pa. Super. 2013).

  2. Custodial interrogation is "questioning initiated by law enforcement officers
     after a person has been taken into custody or otherwise deprived of his
     freedom of action in any significant way." Kunkle, 29 A.3d at 1180 citing
     Miranda v. Arizona, 86 S.Ct. 1602 (1996).

  3. In order to avoid suppression based on a violation of Miranda, the
      Commonwealth must establish that warnings were given and that "the

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    accused manifested an understanding of those warnings." Com v. Cohen, 53
    A.3d 882, 885 (Pa. Super. 2012).

4. In considering whether a defendant has validly waived his Miranda rights, the
   trial court engages in a two-pronged analysis: (t) whether the waiver was
   voluntary, in the sense that the defendant's choice was not the end result of
   governmental pressure; and (2) whether the waiver was knowing and
   intelligent, in the sense that it was made with full comprehension of both the
   nature of the right being abandoned and the consequence of that choice.
   Com v. Kunkle, 79 A.3d 1173, 1180 (Pa. Super. 2013) citing Com v. Pruitt
   951 A.2d 307 (Pa. 2008).

5. When examining whether a statement was voluntary, the court looks to the
   totality of circumstances that surrounds the statement. Com. v. Bryant, 67
   A.3d 716 (Pa. 2013).

6. To assess the totality of the circumstances surrounding the statement,
   several factors are examined: (1) the duration and means of interrogation;
   (2) whether the questioning was repeated, prolonged, or accompanied by
    physical abuse or threats thereof; (3) the length of the accused's detention
   prior to the confession; (4) whether the accused was advised of his or her
   constitutional rights; (5) the attitude exhibited by the police during the
   interrogation; (6) the accused's physical and psychological state, including
   whether he or she was injured, Ill, drugged, or intoxicated; (7) the conditions
   attendant to the detention including whether the accused was deprived of
   food, drink, sleep, or medical attention; (8) the age, education, and
   intelligence of the accused; (9) the experience of the accused with the law
   enforcement system and other factors which might serve to drain ones
   powers or resistance to suggestion and coercion. Bryant, 67 A.3d 716 (Pa.
   2013).

7. The question of voluntariness isn't whether or not defendant would have
   confessed without interrogation, "but whether the interrogation was so
   manipulative or coercive that it depraved the defendant of his ability to make
   a free and unconstrained decision to confess. Com v. Rushing/ 71 A.3d 939
   (Pa. Super 2013).

8. Sgt. Smith testified that he read verbatim the Miranda Warnings to the
   defendant before he began any questioning. Sgt. Smith stated that the
   defendant appeared calm and collected and he was certain that the
   defendant understood his rights and the English language.

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        9. The audio from the interview substantiates Sgt. Smith's testimony. Both
            Sergeant Smith and Detective Walsh were speaking in calm tones and were
            not In any way threatening or coercing the defendant to speak with them. In
            addition, the defendant appears calm and willingly to interact. In the
            beginning, the defendant states that "he will stop talking if he wishes to
            consult an attorney."

        10. The audio further evidences that the defendant had no trouble understanding
            or speaking English with Sgt. Smith or Detective Walsh.

        11.Counsel claims that simply because the defendant was wearing handcuffs
           during the interview that he was essentially coerced Into giving a statement.
           While the audio shows that the defendant was handcuffed, it also shows the
           Officer's making sure the defendant was comfortable; even loosening them
           when they were too tight.

Conclusion
    1. Based on the testimony provided by Sergeant Smith and this Court's review of
       the oral statement, the defendant's waiver of his Miranda rights was knowing,
       voluntary, and intelligent; therefore, the statement will not be suppressed.



    The Defendant's Motion to Suppress is DENIED. Additional findings of fact and

conclusions of law will be submitted in the Opinion of the Court at the appropriate time,

should it be deemed necessary.




Cc: Ryan Grace; Assistant District Attorney
    David Daniel, Assistant Public Defender




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