J-S94043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

CHAD EARL FRANTZ

                               Appellant               No. 702 MDA 2016


             Appeal from the Judgment of Sentence March 9, 2016
      in the Court of Common Pleas of Lancaster County Criminal Division
                       at No(s): CP-36-CR-0002297-2015

BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 24, 2017

        Appellant, Chad Earl Frantz, appeals from his judgment of sentence of

thirty and one-half to sixty-one years’ imprisonment for rape,1 involuntary

deviate sexual intercourse (“IDSI”),2 indecent assault,3 aggravated indecent

assault,4 unlawful restraint,5 corruption of minors6 and unlawful contact with




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(c).
2
    18 Pa.C.S. § 3123(b).
3
    18 Pa.C.S. § 3126(a)(7).
4
    18 Pa.C.S. § 3125(b).
5
    18 Pa.C.S. § 2902.
6
    18 Pa.C.S. § 6301(a)(1).
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a minor.7 Appellant contends that the evidence is insufficient to support his

conviction for indecent assault on Count Nine of the criminal information,

and that his sentence for indecent assault on Count Four is illegal.        We

reverse the conviction on Count Nine but otherwise affirm the judgment of

sentence.

        A recitation of the facts is unnecessary for this appeal. Suffice to say

that Count Four of the information charged Appellant with indecent assault

for making the minor victim touch his penis with her hands on multiple

occasions between 2006 and 2009.          Count Nine charged Appellant with

indecent assault for making the victim touch his penis with her hands on

multiple occasions between 2003 and 2005.

        A three-day jury trial took place from November 30, 2015 to

December 2, 2015. At the conclusion of trial, the jury found Appellant guilty

on all counts in the information.      The parties and the trial court agree,

however, that there was no evidence that Appellant made the victim touch

his penis between 2003 and 2005.            Trial Ct. Op., 6/13/16, at 4-5;

Appellant’s Brief at 13-14; Commonwealth’s Brief at 9-10.

        At sentencing on March 9, 2016, the trial court wrote on the

sentencing order that Count Four was an “M1,” i.e., a first degree

misdemeanor.      The court sentenced Appellant to (1) eight to sixteen years’

imprisonment on his conviction for rape on Count One, (2) a consecutive

7
    18 Pa.C.S. § 6318.



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term of eight to sixteen years’ imprisonment for IDSI on Count Two, (3) one

to two years’ imprisonment on Count Four, and (4) one to two years’

imprisonment on Count Nine.      The court ordered the sentences on Counts

Four and Nine to run concurrently with Appellant’s other sentences, including

Counts One and Two. Appellant filed timely post-sentence motions, which

were denied, and a timely appeal.        Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises two issues in this appeal:

         I. Was the evidence presented by the Commonwealth
         insufficient to sustain [Appellant]’s conviction for indecent
         assault [in C]ount [N]ine, where there was no evidence
         offered that between 2003 and 2005, [Appellant] did
         “touch the actor’s penis with the victim’s hands on multiple
         occasions [?]”

         II. Was the evidence presented by the Commonwealth
         insufficient to sustain [Appellant]’s conviction for indecent
         assault [in C]ount [F]our, graded as a third-degree felony,
         where there was evidence of only a single incident in which
         [Appellant] put his penis in the victim’s hand; thus,
         [Appellant] should only have been convicted of indecent
         assault as a first-degree misdemeanor?

Appellant’s Brief at 6.

      Appellant first argues that the evidence is insufficient to sustain his

conviction for indecent assault on Count Nine, because there was no

evidence that the victim’s hands touched Appellant’s penis between 2003

and 2005. We agree.

            The standard we apply in reviewing the sufficiency of
         the evidence is whether viewing all the evidence admitted
         at trial the in the light most favorable to the verdict


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         winner, there is sufficient evidence to enable the fact-
         finder to find every element of the crime beyond a
         reasonable doubt. In applying the above test, we may not
         weigh the evidence and substitute our judgment for the
         fact-finder.   In addition, we note that the facts and
         circumstances established by the Commonwealth need not
         preclude every possibility of innocence.         Any doubts
         regarding a defendant’s guilt may be resolved by the fact-
         finder unless the evidence is so weak and inconclusive that
         as a matter of law no probability of fact may be drawn
         from the combined circumstances. The Commonwealth
         may sustain its burden of proving every element of the
         crime beyond a reasonable doubt by means of wholly
         circumstantial evidence. Moreover, in applying the above
         test, the entire record must be evaluated and all evidence
         actually received must be considered. Finally, the finder of
         fact [,] while passing upon the credibility of witnesses and
         the weight of the evidence produced is free to believe all,
         part or none of the evidence.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015),

appeal denied, 138 A.3d 4 (Pa. 2016) (citation omitted).

      “A person is guilty of indecent assault if the person has indecent

contact with the complainant [or] causes the complainant to have indecent

contact with the person . . . for the purpose of arousing sexual desire in the

person or the complainant[.]” 18 Pa.C.S. § 3126(a). The legislature defines

“indecent contact” as “[a]ny touching of the sexual or other intimate parts of

the person for the purpose of arousing or gratifying sexual desire, in any

person.” 18 Pa.C.S. § 3101.

      Count Nine of the information charged Appellant with making the

victim touch Appellant’s penis between 2003 and 2005. The Commonwealth

and the trial court agree, however, that there was no evidence that the



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victim touched Appellant’s penis between 2003 and 2005.              Our review

confirms this point. Accordingly, we reverse Appellant’s conviction on Count

Nine.

        In his second issue, Appellant argues that his sentence for indecent

assault on Count Four is illegal, because the trial court sentenced him as a

third degree felon even though he was only guilty of a first degree

misdemeanor.      Appellant observes that when, as here, the complainant is

less than thirteen years old, indecent assault is graded as a first degree

misdemeanor

          unless any of the following apply, in which case it is a
          felony of the third degree:

             (i) It is a second or subsequent offense.

             (ii) There has been a course of conduct of indecent
             assault by the person.

             (iii) The indecent assault was committed by touching
             the complainant’s sexual or intimate parts with sexual
             or intimate parts of the person.

             (iv) The indecent assault is committed by touching the
             person’s sexual or intimate parts with the complainant’s
             sexual or intimate parts.

18 Pa.C.S. § 3126(b)(3). Appellant contends that the Commonwealth failed

to prove that any of these aggravating circumstances occurred between

2006 and 2009. We conclude that this issue is moot.

        Preliminarily, we note that Appellant did not raise this issue in his

Pa.R.A.P.    1925(b)   statement    of    errors   complained   of   on   appeal.



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Nevertheless, we decline to find this issue waived, because it involves the

legality of Appellant’s sentence.     See Commonwealth v. Dickson, 918

A.2d 95, 99 (Pa. 2007) (“[I]f the sentence clearly implicates the legality of

sentence, whether it was properly preserved below is of no moment, as a

challenge to the legality of sentence cannot be waived.”); Commonwealth

v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008) (claim that court

improperly graded offense for sentencing purposes implicates legality of

sentence) (citations omitted). Nevertheless, Appellant cannot obtain relief.

The sentencing order classifies this offense as a first degree misdemeanor,

not as a third degree felony. Moreover, the trial court sentenced Appellant

to one to two years’ imprisonment, well within the maximum sentence for a

first degree misdemeanor.           See 18 Pa.C.S. § 1104(1) (establishing

maximum     sentence    of   five    years’   imprisonment   for   first   degree

misdemeanor).     In short, this issue is moot because the trial court has

already given Appellant the relief that he requests.

      Accordingly, we affirm Appellant’s convictions on all counts of the

information except for Count Nine, which must be reversed. Reversal of this

conviction, however, does not upset Appellant’s sentencing scheme, because

his sentence on Count Nine ran concurrently with his other sentences. Thus,

it is not necessary to remand this case for resentencing.




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     Conviction on Count Nine reversed. Judgment of sentence otherwise

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/24/2017




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