J-A18016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JENNIFER L. MERKLINGER

                         Appellant                   No. 2195 MDA 2014


    Appeal from the Judgment of Sentence entered November 24, 2014
              In the Court of Common Pleas of Berks County
             Criminal Division at No: CP-06-CR-0001089-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 29, 2015

      Appellant Jennifer L. Merklinger appeals from the judgment of

sentence entered in the Court of Common Pleas of Berks County (trial

court), following a bench trial that resulted in Appellant being found guilty of

institutional sexual assault under Section 3124.2(a.2)(1) of the Crimes

Code, 18 Pa.C.S.A. § 3124.2(a.2)(1). Upon review, we affirm.

      On January 10, 2014, Appellant was charged with institutional sexual

assault under Section 3124.2(a.2)(1) for having sexual relations with a male

student.   The affidavit of probable cause accompanying the complaint

provided in part:

      [Appellant] confessed . . . and admitted to having kissed [the
      victim] while parked [i]n the parking lot of the Berkshire Mall in
      Wyomissing, Berks County, Pennsylvania on December 19, 2013
      at approx. 6:00 p.m.
      [Appellant] stated that on December 20, 2013, after being
      picked up by the victim[, Appellant] had sexual intercourse in his
J-A18016-15


      truck. The victim had taken [Appellant] to his home in the
      Borough of Shoemakersville and again had [s]exual [i]ntercourse
      on the livingroom [sic] sofa. [Appellant] and [the victim] then
      went to Buck Rubs Club where she was drinking beer.

      Upon the [v]ictim being interviewed, he admitted that [o]n
      December 20, 2013 at approx. 8:30 p.m. the [v]ictim parked his
      truck at the Fire Tower, located in Schuylkill County, where
      [Appellant] had performed [o]ral [s]ex on him and gave him a
      hand job.

      On December 23, 2013, [Appellant] performed [o]ral [s]ex on
      the victim due to having her [m]enstrual [c]ycle at her home in
      the Borough of Hamburg, Berks County, Pennsylvania.

Affidavit of Probable Cause, 1/10/14.

      On April 23, 2014, Appellant filed a “Motion to Quash the Bills [sic] of

Information,”    asserting,   inter   alia,   that   Section   3124.2(a.2)(1)   was

unconstitutionally vague to the extent it applied to women.                Section

3124.2(a.2)(1) provides that “a person who is . . . an employee of a school

. . . commits a felony of the third degree when he engages in sexual

intercourse, deviate sexual intercourse or indecent contact with a student of

the school.”    18 Pa.C.S.A. § 3124.2(a.2)(1).        Appellant also asserted that

Section 3124.2(a.2)(1) was unconstitutionally overbroad because it punished

a substantial amount of protected conduct. Following the Commonwealth’s

response, the trial court denied Appellant’s motion to quash the information

on July 30, 2014.

      On August 5, 2014, Appellant waived her right to a jury trial.            On

August 21, 2014, the case proceeded to a bench trial, at which Appellant

stipulated to the following facts:

      1. [Appellant] is a female individual with a date of birth of
      June 8, 1973.


                                        -2-
J-A18016-15


      2. [The victim] is a male individual with a date of birth of
      September 12, 1995.

      3. On or about the dates of December 13, 2013, through
      January 1, 2014, [Appellant] engaged in sexual intercourse,
      deviate sexual intercourse, and indecent contact, as defined in
      18 Pa.C.S.A. § 3101, with [the victim]. These acts shall be
      referred to as the “Sexual Acts.”

      4. The Sexual Acts occurred on multiple occasions in Berks
      County, Pennsylvania.

      5. When [Appellant] and [the victim] engaged in Sexual Acts[,]
      [the victim] was a student of Hamburg Area High School, and
      [Appellant] was employed as a teacher’s aide at Hamburg Area
      High School.
      6. If called to testify[,] Criminal Investigator Angel C. Cabrera, of
      Hamburg Police Department, would testify that [Appellant], on
      January 03, 2014, voluntarily gave a written statement
      admitting to the Sexual Acts.

Stipulation, 8/21/14.    Following the stipulated bench trial, the trial court

convicted   Appellant    of   institutional   sexual   assault   under   Section

3124.2(a.2)(1). On November 24, 2014, the trial court sentenced Appellant

to five years’ probation. Appellant timely appealed.

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

Appellant raised the following assertions of error:

      1. The trial court erred as a matter of law [in] determining that
      18 Pa.C.S.A. [§] 3124.2(a.2)(1) relating to institutional sexual
      assault is enforceable and not unconstitutionally vague.

      2. The trial court erred as a matter of law [in] determining that
      18 Pa.C.S.A. [§] 3124.2(a.2)(1) relating to institutional sexual
      assault is enforceable and not unconstitutionally overbroad upon
      a basis that it punishes a substantial amount of conduct
      protected by the United States and Pennsylvania Constitutions.

Rule 1925(b) Statement, 1/2/15.         In response, the trial court issued a

Pa.R.A.P. 1925(a) opinion, concluding that Section 3124.2(a.2)(1) passed

constitutional muster.


                                      -3-
J-A18016-15



       On appeal, Appellant raises four issues for our review:

       1. Whether the activity of adults engaging in consensual sexual
       relations is a fundamental right protected by the Due Process
       Clause of the Fourteenth Amendment of [sic] the United States
       Constitution?

       2. Whether the activity of adults to [sic] engaging in consensual
       sexual relations is a fundamental right protected by Article I
       Section 9 of the Pennsylvania Constitution?

       3. Whether 18 Pa.C.S.A. [§] 3124.2(a.2)(1) relating            to
       institutional sexual assault is unconstitutionally vague?

       4. Whether 18 Pa.C.S.A. [§] 3124.2(a.2)(1) relating to
       institutional sexual assault is unconstitutionally overbroad
       because it punishes a substantial amount of conduct protected
       by the United States and Pennsylvania Constitutions?[1]

Appellant’s Brief at 4.2

       At the outset, we note that Appellant has failed to preserve the first

two issues for our review, because she failed to include them in her Rule

1925(b) statement. The failure to raise an issue in an ordered Rule 1925(b)

statement results in waiver of that issue on appeal. See Commonwealth

v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding issues not raised in Rule

1925 concise statement are waived); see also Pa.R.A.P. 1925(b)(4)(vii)

(“Issues not included in the Statement and/or not raised in accordance with
____________________________________________


1
   To the extent Appellant asserts an overbreadth challenge under the
Pennsylvania Constitution, such challenge is abandoned because Appellant
failed to raise it in the argument section of her brief. See Pa.R.A.P.
2119(a), (b).
2
  Appellant’s brief is largely a reproduction of her “Memorandum of Law in
Support of [Appellant’s] Motion to Quash Bills of Information” filed in the
trial court.




                                           -4-
J-A18016-15



the provisions of this paragraph (b)(4) are waived.”). Because Appellant has

waived her first two issues, we begin our analysis with her third issue.

      Appellant argues that Section 3124.2(a.2)(1) is vague because

“ordinary people of common intelligence must necessarily guess at the

meaning of the statute and reasonably could differ as to the statute’s

application to women.”     Appellant’s Brief at 15.    As a result, Appellant

argues that Section 3124.2(a.2)(1) violates the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.        Id. at 10.   To

bolster her argument, Appellant points to Section 3124.2(a.2)(1)’s use of

the masculine term “he.”       Id. at 15.     Appellant argues that Section

3124.2(a.2)(1) “does not provide a clear and reasonable standard by which

women can gauge their conduct.” Id. We disagree.

      In analyzing the constitutionality of Section 3124.2(a.2)(1), we

recognize:

      [T]here is a strong presumption in the law that legislative
      enactments do not violate the constitution. Moreover, there is a
      heavy burden of persuasion upon one who challenges the
      constitutionality of a statute.      As a matter of statutory
      construction, we presume the General Assembly does not intend
      to violate the Constitution of the United States or of this
      Commonwealth. A statute will not be declared unconstitutional
      unless it clearly, palpably, and plainly violates the Constitution;
      all doubts are to be resolved in favor of a finding of
      constitutionality.

Commonwealth v. Mayfield, 832 A.2d 418, 421 (Pa. 2003) (internal

quotation marks and citations omitted).

      With respect to the constitutional vagueness standard, our Supreme

Court explained in Mayfield:


                                     -5-
J-A18016-15


       The terms of a penal statute creating a new offense must be
       sufficiently explicit to inform those who are subject to it what
       conduct on their part will render them liable to its penalties. A
       statute which either forbids or requires the doing of an act in
       terms so vague that men of common intelligence must
       necessarily guess at its meaning and differ as to its application
       violates the first essential of due process of law.

       The void-for-vagueness doctrine requires that a penal statute
       define the criminal offense with sufficient definiteness that
       ordinary people can understand what conduct is prohibited and
       in a manner that does not encourage arbitrary and
       discriminatory enforcement.   Due process is satisfied if the
       statute provides reasonable standards by which a person may
       gauge his future conduct.

Id. at 422 (internal quotation marks and citations omitted). Moreover, it is

settled that “vagueness challenges to statutes which do not involve First

Amendment freedoms must be examined in the light of the facts of the case

at hand.”3 Id.

       In Mayfield, our Supreme Court addressed a constitutional vagueness

challenge to a provision of Section 3124.2 pertaining to corrections officers.

The Commonwealth in Mayfield contended that the trial court erred in

declaring Section 3124.2 unconstitutionally vague because it failed to

defined the terms “inmates” and “employees.”        Id.   Our Supreme Court

agreed. In so doing, the Court concluded:

       Applied to appellee’s[, a corrections officer’s,] conduct, the
       statute could not be clearer.       In pertinent part, § 3124.2
       provides, “[A] person who is an employee or agent of . . . a
       county correctional authority . . . commits a felony of the third
       degree when that person engages in sexual intercourse . . . or
       indecent contact with an inmate[.]” 18 Pa.C.S. § 3124.2(a).
       The statute’s plain language reveals the intent of the General
____________________________________________


3
  Appellant does not raise any First Amendment challenges to Section
3124.2(a.2)(1).



                                           -6-
J-A18016-15


     Assembly: to prohibit sexual contact between correctional staff
     and inmates. It is sufficiently definite that ordinary people can
     understand what conduct is prohibited, and is not so vague that
     men of common intelligence must necessarily guess at its
     meaning and differ as to its application. The statute provides
     reasonable standards for correctional personnel to gauge their
     conduct—namely, sexual contact with inmates is forbidden.
     Whatever latent ambiguities may lurk in the terms “inmate” or
     “employee” are not implicated here. [The a]ppellee was a county
     corrections officer; she was unquestionably an “employee” of a
     county correctional facility.     The persons with whom she
     allegedly had sexual contact were indisputably “inmates” at that
     facility. [The a]ppellee’s alleged conduct is precisely what the
     General Assembly intended to proscribe when it enacted §
     3124.2, which is not unconstitutionally vague.

Id. at 422-23 (some internal quotations marks and citations omitted).

     Section 3124.2(a.2) at issue sub judice provides in part:

     (1) Except as provided in sections 3121, 3122.1, 3123, 3124.1
     and 3125, a person who is a volunteer or an employee of a
     school or any other person who has direct contact with a student
     at a school commits a felony of the third degree when he
     engages in sexual intercourse, deviate sexual intercourse or
     indecent contact with a student of the school.

     (2) As used in this subsection, the following terms shall have the
     meanings given to them in this paragraph:

        (i) “Direct contact.”     Care, supervision, guidance or
        control.

        (ii) “Employee.”

           (A) Includes:

              (I) A teacher, a supervisor, a supervising
              principal, a principal, an assistant principal, a
              vice principal, a director of vocational
              education, a dental hygienist, a visiting
              teacher, a home and school visitor, a school
              counselor, a child nutrition program specialist,
              a school librarian, a school secretary the
              selection of whom is on the basis of merit as
              determined by eligibility lists, a school nurse, a
              substitute teacher, a janitor, a cafeteria
              worker, a bus driver, a teacher aide and any
              other employee who has direct contact with
              school students.

18 Pa.C.S.A. § 3124.2(a.2) (emphasis added).

                                    -7-
J-A18016-15



     With the foregoing principles in mind, and based on our review of

Section 3124.2(a.2)(1), we conclude that, as in Mayfield, Appellant’s

constitutional vagueness challenge also is devoid of merit.      Specifically,

Appellant’s argument that the term “he” as used in Section 3124.2(a.2)(1)

does not apply to women is spurious.      As the Commonwealth aptly points

out, Section 1902 of the Statutory Construction Act explicitly provides that

“[w]ords used in the masculine gender shall include the feminine and

neuter.” 1 Pa.C.S.A. § 1902; see also Commonwealth v. Vagnoni, 416

A.2d 99, 100 (Pa. Super. 1979) (holding that “the word ‘he’ shall refer to

women as well as men as does the word “person”).

     Moreover, as in Mayfield, instantly the statute’s plain language

reveals that the legislature intended to prohibit sexual contact between

school employees and students.       Section 3124.2(a.2)(1), therefore, is

sufficiently definite that ordinary people can understand what conduct is

prohibited, and is not so vague that men and women of common intelligence

must necessarily guess at its meaning and differ as to its application. See

Mayfield, supra. It is undisputed here that Appellant was employed as a

teacher aide by the school district and the victim was a student in the same

school district. As an employee of the school district, Appellant should have

appreciated Section 3124.2(a.2)(1)’s reasonable standards barring sexual

contact with students. Accordingly, we conclude that Section 3124.2(a.2)(1)

is not vague under the Due Process Clause of the Fourteenth Amendment.




                                    -8-
J-A18016-15



     Appellant next argues that Section 3124.2(a.2)(1) is overbroad in

violation of the Due Process Clause of the Fourteenth Amendment to the

United States Constitution.   In particular, Appellant argues that Section

3124.2(a.2)(1) “punishes a substantial amount of protected conduct” to the

extent it bars two consenting adults from engaging in sexual contact. We

again disagree.

     In Mayfield, our Supreme Court outlined the standards governing an

overbreadth challenge:

     A statute is overbroad if by its reach it punishes a substantial
     amount of constitutionally-protected conduct. If the overbreadth
     of the statute is substantial, judged in relation to its legitimate
     sweep, it may not be enforced against anyone until it is
     narrowed to reach only unprotected activity. The function of
     overbreadth adjudication, however, attenuates as the prohibited
     behavior moves from pure speech towards conduct, where the
     conduct falls within the scope of otherwise valid criminal laws
     that reflect legitimate state interests.

Mayfield, 832 A.2d at 425 (citation omitted). The overbreadth challenge in

Mayfield involved Section 3124.2 pertaining to corrections officers.       The

Court principally relied on the then-recent United States Supreme Court

decision in Lawrence v. Texas, 539 U.S. 558 (2003), in finding the statute

constitutional. The Court reasoned:

     While Lawrence clearly establishes a due process right of
     consenting adults to engage in private sexual conduct free from
     governmental interference, the United States Supreme Court
     was careful to qualify the reach of its holding: “The present case
     does not involve minors. It does not involve persons who
     might be injured or coerced or who are situated in
     relationships where consent might not easily be refused.
     It does not involve public conduct or prostitution.” Sexual
     contact between correctional staff and inmates is obviously rife
     with the possibility of coercion, both subtle and overt, given the
     extensive power guards exercise over inmates. Furthermore,
     public correctional institutions can in no way be likened to that

                                      -9-
J-A18016-15


      “most private of places, the home.” Lawrence, at [567]. While
      the state interest in regulating private consensual sex between
      adults is low, in the setting of a correctional institution the
      calculus of interests is fundamentally different.
      In such a setting, the state interest in maintaining institutional
      order and discipline is high, and the interest of the individual is
      necessarily limited. The United States Supreme Court noted this
      essential difference in Pell v. Procunier, 417 U.S. 817, 94 S.Ct.
      2800, 41 L.Ed.2d 495 (1974):

            We have recognized, however, that the relationship
            of state prisoners and the state officers who
            supervise their confinement is far more intimate than
            that of a State and a private citizen, and that the
            internal problems of state prisons involve issues . . .
            peculiarly within state authority and expertise.
      Id., at 825–26, 94 S.Ct. 2800 (quotation marks omitted). The
      Commonwealth has an undeniable interest in ensuring the
      “relationship of state prisoners and the state officers who
      supervise their confinement,” id., as well as institutional order
      and discipline, is not undermined by sexual contact, consensual
      or otherwise. Therefore, we conclude § 3124.2 does not “punish
      [] a substantial amount of constitutionally-protected conduct.”
      Rather, the statute regulates “conduct [that] falls within the
      scope of otherwise valid criminal laws that reflect legitimate
      state interests.”     Section 3124.2 is not unconstitutionally
      overbroad

Mayfield, 832 A.2d at 425 (some internal citations omitted) (emphasis

added).

      Applying the foregoing principles, we reach the same conclusion as the

Court in Mayfield, because Section 3124.2(a.2)(1) does not punish a

substantial amount of constitutionally-protected conduct by its terms that

bar school employees from having sexual contact with students. In a school

setting, it is safe to assume that sexual contact between school employees,

including teacher aides, and students “is rife with the possibility of coercion,

both subtle and overt,” given the extensive power school employees exercise

over students. Mayfield, supra. In fact, it is entirely plausible that school



                                     - 10 -
J-A18016-15



employees may exploit their position vis-à-vis students for personal benefits,

including sex. As the trial court observed:

      Section 3124.2 directly targets this sort of inexorable power
      disparity between students and school employees. The victim’s
      age does not make the relationship less coercive. Indeed, the
      victims in Mayfield may have been significantly older than age
      eighteen—it is an irrelevant consideration.

Trial Court Opinion, 2/11/15, at 7. Accordingly, consistent with Mayfield,

we conclude that Section 3124.2(a.2)(1) regulates conduct that falls within

the scope of otherwise valid criminal laws that reflect legitimate state

interests. See Mayfield, supra. Section 3124.2(a.2)(1), therefore, is not

unconstitutionally overbroad. Id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2015




                                    - 11 -
