J-S32016-16


                                  2016 PA Super 105

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARKEITH AIKENS

                            Appellant                 No. 224 EDA 2015


             Appeal from the Judgment of Sentence August 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003098-2013


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

OPINION BY MUNDY, J.:                                      FILED MAY 20, 2016

        Appellant, Markeith Aikens, appeals from the August 7, 2014,

aggregate judgment of sentence of 7 to 15 years’ imprisonment, imposed

after he was found guilty of one count each of unlawful contact with a minor

and corruption of minors.1 After careful review, we affirm.

        We summarize the procedural history of this case as follows. On July

22, 2013, the Commonwealth filed an information, charging Appellant with

the above-mentioned offenses, as well as one count each of involuntary

deviate sexual intercourse (IDSI), statutory sexual assault, indecent assault,



____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6318(a)(1) and 6301(a)(1)(i), respectively.
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and indecent exposure.2 On April 23, 2014, Appellant proceeded to a jury

trial, at the conclusion of which the jury found Appellant guilty of one count

each of unlawful contact with a minor and corruption of minors. Important

to this appeal, the jury acquitted Appellant of IDSI, and the remaining

charges were nolle prossed. On August 7, 2014, the trial court imposed an

aggregate sentence of 7 to 15 years’ imprisonment. Additionally, relevant to

this appeal, the trial court graded Appellant’s unlawful contact with a minor

charge as a first-degree felony and imposed a sentence of 6 to 12 years’

imprisonment.      The trial court further imposed a consecutive one to three

year sentence for corruption of minors. On August 17, 2014, Appellant filed

a timely post-sentence motion, which the trial court denied on December 16,

2014. On January 9, 2015, Appellant filed a timely notice of appeal.3

       On appeal, Appellant raises one issue for our review.

              Did the [trial] court illegally sentence Appellant on
              unlawful contact with a minor graded as an F-1 when
              it should have been graded as an F-3?

Appellant’s Brief at 3.

       Appellant’s only argument on appeal is that the trial court erroneously

graded his unlawful contact with a minor conviction as a first-degree felony,


____________________________________________
2
   18 Pa.C.S.A.        §§    3123(a)(7),       3122.1,   3126(a)(7),   and   3127(a),
respectively.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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when it should have been graded as a third-degree felony. Appellant’s Brief

at 7. We note that the proper grading of an offense pertains to the legality

of the sentence. Commonwealth v. Coto, 932 A.2d 933, 935 (Pa. Super.

2007).      Our review, therefore, is guided by the following well-settled

standard.

             “A challenge to the legality of a sentence … may be
             entertained as long as the reviewing court has
             jurisdiction.” Commonwealth v. Borovichka, 18
             A.3d 1242, 1254 n.8 (Pa. Super. 2011) (citation
             omitted). It is also well-established that “[i]f no
             statutory authorization exists for a particular
             sentence, that sentence is illegal and subject to
             correction.” Commonwealth v. Rivera, 95 A.3d
             913, 915 (Pa. Super. 2014) (citation omitted). “An
             illegal sentence must be vacated.” Id. “Issues
             relating to the legality of a sentence are questions of
             law[.] … Our standard of review over such questions
             is de novo and our scope of review is plenary.”
             Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.
             Super. 2014) (citations omitted).

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014), appeal

denied, 121 A.3d 494 (Pa. 2015).

      Instantly, the unlawful contact with a minor statute provides in

relevant part, as follows.

             § 6318. Unlawful contact with minor

             (a) Offense defined.--A person commits an offense
             if he is intentionally in contact with a minor, or a law
             enforcement officer acting in the performance of his
             duties who has assumed the identity of a minor, for
             the purpose of engaging in an activity prohibited
             under any of the following, and either the person
             initiating the contact or the person being contacted is
             within this Commonwealth:

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                 (1) Any of the offenses enumerated in Chapter
                 31 (relating to sexual offenses).

                 (2) Open lewdness as defined in section 5901
                 (relating to open lewdness).

                 (3) Prostitution as defined in section 5902
                 (relating to prostitution and related offenses).

                 (4) Obscene and other sexual materials and
                 performances as defined in section 5903
                 (relating to obscene and other sexual materials
                 and performances).

                 (5) Sexual abuse of children as defined in
                 section 6312 (relating to sexual abuse of
                 children).

                 (6) Sexual exploitation of children as defined in
                 section 6320 (relating to sexual exploitation of
                 children).

           (b) Grading.--A violation of subsection (a) is:

                 (1) an offense of the same grade and degree
                 as the most serious underlying offense in
                 subsection (a) for which the defendant
                 contacted the minor; or

                 (2) a felony of the third degree;

           whichever is greater.

18 Pa.C.S.A. § 6318.     In Appellant’s view, his case is identical to our

Supreme Court’s decision in Commonwealth v. Reed, 9 A.3d 1138 (Pa.

2010).

     In Reed, the defendant was charged with attempted unlawful contact

with a minor, as well as “criminal attempt of the following crimes: rape of a


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child and [IDSI], which are first-degree felony offenses, statutory sexual

assault,     a    second-degree      felony,    indecent   assault,   a     second-degree

misdemeanor, and corruption of a minor, a first-degree misdemeanor.” Id.

at 1141. The jury acquitted Reed of all charges except attempted unlawful

contact with a minor.         Id.   The trial court graded the attempted unlawful

contact with a minor as a first-degree felony. Id. Reed appealed, arguing

that the grading was improper in light of the jury’s acquittals on the other

charged offenses. Our Supreme Court agreed with Reed that the gradation

was erroneous.

       Our Supreme Court stated that a conviction of a Chapter 31 offense is

not statutorily required, because it is not a predicate offense of unlawful

contact with a minor. Id. at 1146. However, instead, our Supreme Court

tied   the       gradation   of   unlawful     contact   with   a   minor    to   how   the

Commonwealth charges and presents its case to the jury.

                 Pursuant to the express statutory language, a
                 violation of 18 Pa.C.S. § 6318(a) is the same grade
                 as the most serious underlying offense for which the
                 defendant attempted contact with the minor, or a
                 first-degree misdemeanor, whichever is greater. In
                 this case, the Commonwealth chose to charge
                 Appellee separately, inter alia, with the Chapter 31
                 offenses of attempted rape of a child, IDSI,
                 statutory sexual assault, and indecent assault.
                 Following a three-day trial, the jury found Appellee
                 not guilty of those offenses.        It is here that
                 [Commonwealth v. Magliocco, 883 A.2d 479 (Pa.
                 2005)] can provide limited guidance. Although that
                 case involved predicate offenses and the instant case
                 does not, both cases share one common feature: to
                 secure a conviction of the offense under review, i.e.,

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J-S32016-16


           terroristic threats in Magliocco and the Chapter 31
           offenses herein, the Commonwealth was not
           required to charge the defendant with the other
           crimes. The operative reality, however, is that in the
           case sub judice, the Commonwealth did charge those
           offenses, and the jury acquitted Appellee of those
           crimes. As we noted in Magliocco II, acquittals
           “have been accorded a special weight in the law.”
           Id. at 492 (citing United States v. DiFrancesco,
           449 U.S. 117, 129–30 (1980), and Commonwealth
           v. D.M., 695 A.2d 770 (Pa. 1997)).

Id. at 1146-1147 (parallel citations omitted) (emphasis added). As a result

of the jury’s acquittals, our Supreme Court concluded the first-degree felony

grading was legally precluded.

           Thus, while it was not incumbent upon the
           Commonwealth to secure a conviction of an
           enumerated offense in 18 Pa.C.S. § 6318(a), it chose
           to do so, and Appellee’s acquittal cannot be ignored
           when applying the appropriate grading under
           subsection 6318(b). In this scenario, where Appellee
           was acquitted of all other charged offenses, the
           sentencing court had to guess which offense
           Appellee sought to commit when he contacted
           Taylorgirl1992. We cannot countenance that result.
           “[O]ur rules of statutory construction [forbid] absurd
           results.” Commonwealth v. Sloan, 907 A.2d 460,
           467 (2006).

                 As we reiterated above, penal provisions of a
           statute must be strictly construed. 1 Pa.C.S.
           § 1928(b)(1). Commonwealth v. Hoke, 962 A.2d
           664, 667 (Pa. 2009) (“where ambiguity exists in the
           language of a penal statute, such language should be
           interpreted in the light most favorable to the
           accused.... [A] court may not achieve an acceptable
           construction of a penal statute by reading into the
           statute terms that broaden its scope.”) (quoting
           Commonwealth v. Booth, 766 A.2d 843, 846 (Pa.
           2001); Commonwealth v. Dickson, 918 A.2d 95,
           100 (Pa. 2007)) (“we must construe all penal

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J-S32016-16


            provisions strictly in favor of defendants’ liberty
            interests”). Applying these precepts to 18 Pa.C.S.
            § 6318(b), and in light of the special weight afforded
            acquittals, we find that the default grading must
            apply because the fact-finder specifically determined
            that Appellee did not commit the separately charged
            Chapter 31 offenses.

Id. at 1147-1148.

      Turning   to   the   case   sub   judice,   it   is   not   disputed   that   the

Commonwealth chose to charge Appellant with the underlying Chapter 31

offense of IDSI, and the jury acquitted Appellant of that offense. However,

in Reed, the Commonwealth specifically charged Reed with attempt to

commit IDSI, not just the underlying crime of IDSI.               Criminal attempt is

closer to the element contained in Section 6318(a) “for the purpose of

engaging in” than the substantive offense itself.           18 Pa.C.S.A. § 6318(a).

Therefore, the jury’s acquittal on the substantive offense of IDSI is less

“relevant,” in the words of our Supreme Court, than the jury’s criminal

attempt acquittals in Reed. Reed, supra at 1146.

      Further, as the Commonwealth and the trial court observe, in this case

the jury was specifically instructed that in order to find Appellant guilty of

unlawful contact with a minor, it had to conclude that Appellant attempted to

contact the victim for the purpose of committing IDSI.

            [Appellant] has been charged with unlawful contact
            with a minor. To find [Appellant] guilty of this
            offense, you must find that each of the following
            elements has been proven beyond a reasonable
            doubt: First, that [Appellant] was intentionally in
            contact for the purpose of engaging in an unlawful

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J-S32016-16


              act -- and in this case, that unlawful act is alleged
              to be [IDSI], the crime that we just discussed, that
              I just defined for you ….

N.T., 4/24/14, at 95 (emphasis added).

       As the trial court’s charge makes clear, the jury was instructed that

Appellant was only accused of contacting the minor for one specific Chapter

31 offense, IDSI. Id. Thus, when the jury returned a verdict of guilty on

the unlawful contact with a minor offense, it must have concluded, as a

matter of fact, that Appellant contacted the victim for the purpose of

engaging in IDSI. As a result, the jury’s finding in this regard satisfies the

unlawful contact with a minor statute’s grading requirement, because IDSI is

only graded as a first-degree felony.            See generally 18 Pa.C.S.A.

§ 3123(a). Therefore, the jury did find that a first-degree felony was “the

most serious underlying offense ... for which the defendant contacted the

minor[.]”    Id. § 6318(b)(1).        In our view, Reed does not preclude the

higher grading in this case, as the trial court’s sentence was consistent with

the jury’s verdict, based on how it was instructed by the trial court. 4 As a

result, Appellant’s issue on appeal fails. See Cardwell, supra.


____________________________________________
4
  We also note that the Commonwealth’s position, linking the grading of the
offense to the jury instructions, is fully consistent with Appellant’s Sixth
Amendment right to a jury trial. First, it is axiomatic that “[w]e presume
that the jury follow[s] the [trial] court’s instructions.” Commonwealth v.
Natividad, 938 A.2d 310, 326 n.7 (Pa. 2007) (citation omitted). Second,
since the fact that triggered the higher grading aggravated the maximum
penalty to which Appellant was exposed, from 7 to 20 years, said fact was
(Footnote Continued Next Page)


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      Based on the foregoing, we conclude the trial court correctly graded

the unlawful contact with a minor charge as a first-degree felony.

Accordingly, the trial court’s August 7, 2014 judgment of sentence is

affirmed.

      Judgment of sentence affirmed.


                       _______________________
(Footnote Continued)

required to be found by the jury beyond a reasonable doubt. See generally
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (stating that the Sixth
Amendment’s Jury Trial Clause requires “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt[]”).

       Therefore, it would appear that the Commonwealth’s application of
Section 6318 in this case guards against a constitutional problem, while also
ensuring that the jury’s verdict is fully honored. See generally 1 Pa.C.S.A.
§ 1922(3) (stating, “[t]hat the General Assembly does not intend to violate
the Constitution of the United States or of this Commonwealth[]”).
Therefore, at worst, even if the Commonwealth had charged multiple
Chapter 31 offenses and “the sentencing court had to guess which offense
[the defendant] sought to commit when” he or she contacted the minor,
Apprendi would require the default grading to be applied anyway, since the
trial court cannot find the fact for the jury. Reed, supra at 1147; see also
id. at 1148 (Saylor, J., concurring) (stating, “[i]n the absence of a jury
finding regarding which prohibited activity the defendant intended to engage
in for purposes of an unlawful contact with a minor conviction, application of
anything other than the default grading provision raises constitutional
concerns under Apprendi[]”).

      Conversely, Appellant’s application of Reed to this case would lead to
a strange result. We would be faced with a case in which Appellant’s Sixth
Amendment rights were not violated, because the jury did find the fact
required to aggravate the maximum sentence, but his sentence is still illegal
regardless of the jury’s finding, because of how the Commonwealth chose
to charge the case. See generally 1 Pa.C.S.A. § 1921(1) (stating, that we
presume “[t]hat the General Assembly does not intend a result that is
absurd, impossible of execution or unreasonable[]”).



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J-S32016-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




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