J-S47004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEREK ANTHONY CLIFTON                      :
                                               :
                       Appellant               :   No. 533 MDA 2019

      Appeal from the Judgment of Sentence Entered December 14, 2018
      In the Court of Common Pleas of Centre County Criminal Division at
                        No(s): CP-14-CR-0000554-2018


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 23, 2019

        Appellant, Derek Anthony Clifton, appeals from the December 14, 2018

Judgment of Sentence entered in the Centre County Court of Common Pleas

following his entry of a nolo contendere plea to two counts of Indecent

Assault.1 He challenges the legality of his sentence. After careful review, we

affirm.

        We glean the following factual and procedural history from the trial court

opinion and our review of the certified record. On January 22, 2018, Appellant,

an inmate at State Correctional Institution-Rockview, arrived at the laboratory

to have his blood drawn by the Victim, a phlebotomist. After the Victim drew

his blood, she turned around to place his blood sample on a counter. As her

back was turned, Appellant grabbed the Victim’s buttocks. The Victim turned

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1   18 Pa.C.S. § 3126(a)(1)
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around and told Appellant “no” and “to get out.” Appellant then stepped closer

to the Victim and grabbed her right breast.

      On November 2, 2018, Appellant entered an open nolo contendere plea

to two counts of Indecent Assault. On December 14, 2018, the trial court

sentenced Appellant to two consecutive terms of one to two years’

incarceration. Appellant filed a Post-Sentence Motion, which the trial court

denied.

      This timely appeal followed. Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant raises the following issue on appeal:

      Did the sentencing court err in concluding that the two counts of
      Indecent Assault did not merge for sentencing purposes, where
      both counts involved the same complainant and occurred at the
      same location and on the same date apparently within instants of
      each other and the Information used identical language in
      describing both counts?

Appellant’s Br. at 5.

      Appellant avers that his two Indecent Assault convictions should have

merged for sentencing purposes. He notes that the statutory elements of the

offenses are the same and argues that the two counts of Indecent Assault

arose from a single act because there was no break in the chain of events.

Appellant’s Br. at 14-15, 18. He asserts that both assaults occurred

“essentially instantaneously.” Id. at 22. To support his claim, Appellant relies

on our Supreme Court’s plurality decision in Commonwealth v. Gatling, 807

A.2d 890 (Pa. 2002). Specifically, he cites to the Court’s definition of “break”—


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“a significant temporal lapse.” Appellant’s Br. at 15 (citing Gatling, supra at

900).

        “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.

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

        Section 9765 of the Sentencing Code provides, in relevant part, that

“[n]o 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.” 42 Pa.C.S. § 9765.

“The statute’s mandate is clear. It prohibits merger unless two distinct facts

are present: 1) the crimes arise from a single criminal act; and 2) all of the

statutory elements of one of the offenses are included in the statutory

elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa.

2009). Stated another way, “[s]entences are appropriate for merger when

the same facts support convictions for more than one offense, the elements

of the lesser offense are all included within the elements of the greater

offense, and the greater offense includes at least one additional element.”

Commonwealth v. Ward, 856 A.2d 1273, 1276 (Pa. Super. 2004) (citing

Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994)).

        In Gatling, the Court announced the following rule regarding the first

factor:




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      [A]n overarching chain of events does not constitute a single
      criminal act when there is a break in that chain. A break requires
      both that: (1) the acts constituting commission of the first crime
      were completed before the defendant began committing the
      second crime; and (2) proof of the second crime did not in any
      way rely on the facts necessary to prove the first crime. In
      addition, the break must be either: (1) a significant temporal
      lapse; or (2) where applicable, indicated by a change in
      the criminal intent of the defendant at some point during the
      sequence.

807 A.2d at 900.

      However, a majority of the Court did not join Gatling’s discussion of

factors determining a “break in the chain”, and therefore it is not precedential.

Commonwealth v. Shank, 883 A.2d 658, 670 (Pa. Super. 2005).

Accordingly, we rely on caselaw predating Gatling to determine when crimes

arise from a single criminal act. Shank, supra at 670.

      Our Supreme Court has stated, “[i]f . . . the actor commits multiple

criminal acts beyond that which is necessary to establish the bare elements of

the additional crime, then the actor will be guilty of multiple crimes which do

not merge for sentencing purposes.” Commonwealth v. Belsar, 676 A.2d

632, 634 (Pa. 1996). “[W]hen a criminal act has been committed, broken off,

and then resumed, at least two crimes have occurred and sentences may be

imposed for each. To hold that multiple assaults constitute only one crime is

to invite criminals . . . to brutalize their victims with impunity.” Id.




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       Here, Appellant pleaded nolo contendere to two counts of the same

crime, Indecent Assault in connection with two instances of assault.2 After our

review of the record, we agree with the trial court’s well-reasoned analysis

and conclusion that the two crimes were not a continuous singular act, but

rather two completed, separate, and distinct acts. As the trial court opined:

       [In the first action, Appellant] grabbed the butt[ocks] of the
       [V]ictim without her consent. That action meets all the elements
       of [I]ndecent [A]ssault. [Appellant] stopped grabbing her
       butt[ocks]. The [V]ictim turn around and told him “no” and “to get
       out”. [Appellant] then stepped forward [and] grab[bed] the
       [V]ictim’s breast. This second action also independently meets all
       of the elements of an [I]ndecent [A]ssault. The two actions were
       different from each other and the second assault was an additional
       act to the first and not a continuous singular act.

Trial Ct. Op., dated 3/18/19, at 2.

       Since Appellant completed two separate and distinct acts, and each act

meets the definition of Indecent Assault, the trial court properly refused to

apply the merger doctrine. Baldwin, supra at 833; Belsar, supra at 634.




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2“A person is guilty of [I]ndecent [A]ssault if the person has indecent contact
with the complainant . . . for the purpose of arousing sexual desire in the
person or the complainant and . . . the person does so without the
complainant’s consent. 18 Pa.C.S. § 3126(a)(1).

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     Judgment of Sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2019




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