J-S06036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                       v.

    DUANE E. FULGER

                               Appellant               No. 2812 EDA 2016


              Appeal from the Judgment of Sentence August 18, 2016
      in the Court of Common Pleas of Montgomery County Criminal Division
                        at No(s): CP-46-CR-0006387-2014

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

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 19, 2017

        Appellant, Duane E. Fulger, appeals from the judgment of sentence

entered after a jury found him guilty of rape of a child,1 unlawful contact with

a minor,2 and related offenses. Following a remand by this Court, Appellant’s

post-trial counsel (“Counsel”) has filed an amended petition to withdraw from

representation, an amended letter apprising Appellant of his rights in this

appeal, and an Anders/Santiago3 brief. Counsel identifies a single issue in

this appeal, a challenge to the sufficiency of the evidence. We deny counsel’s




*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 3121(c).

2   18 Pa.C.S. § 6318(a)(1).

3Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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petition to withdraw, vacate the judgment of sentence, and remand for further

proceedings consistent with this memorandum.

     In   January    2012,    L.W.   (“Complainant”)      was   seven   years   old.

Complainant’s father (“Father”) left Complainant and her two-year-old sibling

with his mother (“Grandmother”) and went to a holiday party. Grandmother

also left her home to go to a separate holiday party, and Appellant,

Grandmother’s boyfriend, remained with the children.            While Father and

Grandmother    were    at    the   parties,   Appellant   molested   Complainant.

Complainant reported the abuse to Father and Grandmother that evening or

the following day.    However, Grandmother and Father did not alert the

authorities. Complainant later disclosed the abuse to her mother (“Mother”)

in Summer 2013. Mother arranged for Complainant to see a therapist, but

did not alert authorities. Complainant eventually disclosed the abuse to her

therapist. In November 2013, a forensic interviewer with Mission Kids Child

Advocacy Center interviewed Complainant, and Complainant again disclosed

the abuse. An investigation into the allegations commenced, and Appellant

was charged on July 23, 2014.

     At trial, Complainant testified that when she was six or seven years old,

Appellant began getting into the tub with her during baths and would make

her touch his penis. N.T., 10/8/15, 115-116, 119. Appellant “would grab her

hand and move it over.” Id. at 118. Appellant would state that “it would




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make [him] and [her] feel better.” Id. at 120. She believed that “maybe it

was something normal.” Id. at 121.

      On the night that Father and Grandmother were at the holiday parties,

Appellant got into the tub with her and made her touch his penis. Id. at 117.

After one or two minutes, she pulled her hand away and said, “[N]o, I don’t

want to do this anymore.” Id. at 122. She got out of the tub, put on a towel,

got her pajamas from her room, and then went to Grandmother’s room, where

her sibling was sleeping. Id. at 122-23. When she was on the bed putting

on her pajamas, Appellant came into the room naked, and he jumped on top

of her and pinned down her wrists with his hands. Id. at 125. Complainant

testified that “[h]is private part touched [her] private parts,” that he licked

her face, and that he was “moving up and down against [her] body.” Id. at

126-27. She further testified that Appellant’s penis went “in between” the

“lips” of her vagina, and that it hurt. Id. at 127-28. Appellant apparently did

not say anything during this attack.       See id. at 125-28.     Complainant

managed to kick Appellant off of her. Id. at 128-29. Appellant left the room

and told her not to tell anyone. Id. at 131.

      In addition to Complainant’s trial testimony, Father, Grandmother,

Mother, the forensic interviewer, and the investigating detective testified for

the Commonwealth. Appellant testified on his own behalf. On October 9,

2015, a jury found Appellant guilty of rape of a child, unlawful contact with a




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minor, indecent assault—person less than thirteen years of age,4 corruption

of minors,5 endangering welfare of children,6 and attempted rape of a child.7

        Appellant was represented at trial by Edward J. Rideout, III, Esq (“Trial

Counsel”). On April 19, 2016, the trial court granted Attorney Rideout leave

to withdraw and appointed Counsel to represent Appellant.

        On August 18, 2016, the trial court sentenced Appellant to serve

consecutive terms of imprisonment of twenty to forty years for rape of a child8

and ten to twenty years for unlawful contact with a minor. The Commonwealth

did not seek mandatory minimum sentences, and Appellant was found not to

be a sexually violent predator.

        Appellant did not file post-sentence motions,9 but timely filed a notice

of appeal. This appeal followed.


4   18 Pa.C.S. § 3126(a)(7).

5   18 Pa.C.S. § 6301(a)(1)(ii).

6   18 Pa.C.S. § 4304(a)(1).

7   18 Pa.C.S. §§ 901, 3121(c).

8 See 18 Pa.C.S. § 3121(e)(1) (establishing forty year maximum sentence for
rape of a child).

9Although Appellant sent the trial court various pro se motions, the trial court
properly placed them in the record and forwarded copies to Appellant’s
counsel. See Pa.R.Crim.P. 576(A)(4). We also note that Appellant stated at
sentencing that he intended to challenge the weight of the evidence.
However, because no counseled post-sentence motion was filed, that issue is
waived. See Pa.R.Crim.P. 607; Commonwealth v. Sherwood, 982 A.2d
483, 494 (Pa. 2009). Additionally, Appellant asserted that Trial Counsel and



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      Counsel’s Anders/Santiago brief identifies the following issue: “Was

there sufficient evidence presented at trial to allow a jury to find [Appellant]

guilty beyond a reasonable doubt?” Anders/Santiago Brief at 3.

      It is well settled that

         [t]his Court must first pass upon counsel’s petition to
         withdraw before reviewing the merits of the underlying
         issues . . . .

            Prior to withdrawing as counsel on a direct appeal
            under Anders, counsel must file a brief that meets
            the requirements established by our Supreme Court
            in Santiago. The brief must:

               (1) provide a summary of the procedural history
               and facts, with citations to the record;

               (2) refer to anything in the record that counsel
               believes arguably supports the appeal;

               (3) set forth counsel’s conclusion that the
               appeal is frivolous; and

               (4) state counsel’s reasons for concluding that
               the appeal is frivolous.       Counsel should
               articulate the relevant facts of record,
               controlling case law, and/or statutes on point
               that have led to the conclusion that the appeal
               is frivolous.

         Counsel also must provide a copy of the Anders brief to his
         client. Attending the brief must be a letter that advises the
         client of his right to: “(1) retain new counsel to pursue the
         appeal; (2) proceed pro se on appeal; or (3) raise any points
         that the appellant deems worthy of the court[‘]s attention
         in addition to the points raised by counsel in the Anders
         brief.”

Counsel were ineffective, but acknowledged that he would have to wait until
his direct appeal was over before raising those claims. See Commonwealth
v. Grant, 813 A.2d 726, 738 (Pa. 2002).


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Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(citations omitted).

      Instantly, Counsel states in his amended petition that he “made a

thorough review of the record, applicable Pennsylvania Statute [sic], and

applicable Pennsylvania Case Law” and has concluded that “Appellant’s

assertion of insufficient evidence is without merit.” Am. Pet. for Leave

to Withdraw, 3/10/17, at ¶ 10 (emphasis added). Counsel has also filed with

this Court his revised letter, which states that Counsel has supplied Appellant

with copies of his petition to withdraw and a copy of his Anders/Santiago

brief. Counsel’s Letter to Appellant, 3/9/17. Counsel advises Appellant that

he has “the right to retain new counsel or to proceed pro se and may raise

any additional point [he] deem[s] worthy of consideration by writing directly”

to this Court, and that he must respond within sixty days. Id. (italics added).

      We are troubled, however, that Counsel’s petition to withdraw contains

the same language that this Court took issue with when first remanding this

matter. Specifically, Paragraph 14 of the amended petition states:

         Counsel request[s] that he be permitted to withdraw as
         counsel, so that Defendant/Appellant may either be
         appointed new counsel or proceed pro se in pursuing the
         filing of an Amended Concise Statement of Matters
         Complained of on Appeal and subsequent briefing and
         litigation of his direct appeal.

Pet. for Leave to Withdraw, 3/10/17, at ¶ 14.       As noted previously, this

language misstates Appellant’s right to retain new counsel or proceed pro se



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in this appeal. The continued presence of this language creates unnecessary

ambiguity regarding Appellant’s rights if Counsel’s petition to withdraw were

granted.

       Additionally, as noted previously, Counsel has not averred in his

amended petition that he believes this appeal is frivolous based on his

conscientious review of the record and law. He merely asserts that Appellant’s

intended issue is meritless.

       However, we need not address whether an additional remand is

necessary to satisfy the withdrawal procedures of Anders and Santiago,

because a different issue requires remand.        Specifically, the sentence for

unlawful contact with a child is illegal and warrants vacating the judgment of

sentence.

       The proper grading of an offense implicates the legality of sentence, and

this Court may raise a legality of the sentence issue sua sponte.           See

Commonwealth v. Aikens, 168 A.3d 137, 140 (Pa. 2017). In so doing, the

standard of review is de novo, and the scope of our review is plenary. Id. at

141.

       Unlawful contact with a minor is defined, in relevant part, as follows:

           (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).

18 Pa.C.S. § 6318(a)(1).10

      The grading provision of unlawful contact with a minor states:

         (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. § 6318(b). The “grading of the offense of unlawful contact with a

minor is dependent upon the underlying offense, which is the purpose for

which the accused contacted the minor.” Commonwealth v. Miller, 35 A.3d

1206, 1211 (Pa. 2012).

      In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States

Supreme Court held that except for prior convictions,

         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. . . . “[I]t is
         unconstitutional for a legislature to remove from the jury
         the assessment of facts that increase the prescribed range
         of penalties to which a criminal defendant is exposed. It is
         equally clear that such facts must be established by proof
         beyond a reasonable doubt.”

Id. at 490 (citations omitted).




10 Counsel’s Anders/Santiago brief does not discuss the sufficiency of the
evidence regarding Appellant’s conviction for unlawful contact with a minor.


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     As set forth in Section 6318(b), unlawful contact with a minor is

generally a felony-three, unless the defendant contacted the minor for the

purpose of a felony-one or felony-two offense. See 18 Pa.C.S. § 6318(b);

Miller, 35 A.3d 1206, 1211. The purpose of the contact, therefore, is a fact

that increases the prescribed statutory maximum penalty from a felony-three

to a felony-one or felony-two offense.      See 18 Pa.C.S. § 1103(1)-(3)

(prescribing maximum term of imprisonment of twenty years for felony-one

offenses, ten years for felony-two offenses, and seven years for felony-three

offenses). Accordingly, Apprendi applies to the proper grading of unlawful

conduct with a minor and requires that a defendant’s purpose to engage in a

felony-one or felony-two sexual offense be submitted to the jury and found

beyond a reasonable doubt.

     Here, the Commonwealth charged Appellant with unlawful contact with

a minor graded as a felony-one, but did not specify that Appellant contacted

Complainant for the purposes of a felony-one offense. More significantly, the

jury instruction regarding unlawful contact with a minor did not submit the

specific question of whether Appellant’s purpose was to engage in rape of a

child, a felony-one sexual offense charged in this case, or any other felony-

one offense. See N.T., 10/9/15, at 175-76 (indicating that jury was charged

to find only whether Appellant’s contact was for the purpose of engaging in an

unlawful act under 18 Pa.C.S. Chapter 31 relating to sexual offenses), 192

(entering guilty verdict for unlawful contact with a minor without special



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interrogatories). All remaining sexual offenses were graded a felony-three or

lower. Upon further inquiry by this Court, the trial court has provided copies

of the jury verdict form, which make clear that the jury did not specifically

find that Appellant committed the unlawful contact of a minor for the purposes

of a felony-one sexual offense.

      Therefore, the applicable maximum sentence authorized by the verdict

was seven years for felony-three unlawful contact with a minor.11 See 18


11 We note that Apprendi errors are subject to plain error or harmless error
analyses. See United States v. Cotton, 535 U.S. 625, 633 (2002) (holding
no relief due on an Apprendi violation where the evidence that the
defendants’ conspiracy involved at least fifty grams of cocaine base was
“‘overwhelming’ and ‘essentially’ uncontroverted’”); Commonwealth v.
Belak, 825 A.2d 1252, 1256 n.10 (Pa. 2003) (concluding that failure to submit
question to jury regarding whether victims were home during burglaries, when
the defendant previously stipulated to that fact precluded relief based on
Apprendi).

In the instant case, Complainant’s testimony that Appellant came into the
bedroom naked, jumped on top of her, pinned her down with his body, and
held down her wrists was arguably sufficient to prove contact for the purpose
of engaging in rape of a child. See Commonwealth v. Velez, 51 A.3d 260,
267 (Pa. Super. 2012) (noting that evidence of contact must exceed the
evidence necessary to sustain the conviction for a sexual offense and that jury
could have inferred that the defendant directed the victim to unclothe or place
her knees in the air). However, Appellant not only denied Complainant’s
testimony that any assaults occurred, but also raised inconsistencies based on
Father’s and Grandmother’s statements regarding Complainant’s initial
reports of the rape. During closing arguments, the Commonwealth did not
expressly assert that the jury should find Appellant guilty of unlawful contact
with a minor for the purpose of rape of a child. Rather, it noted that Appellant
would commit the offense based on any direct contact for the purpose of
engaging in a sexual offense and illustrated that Appellant could be found
guilty if he told Complainant to touch his penis. Thus, the Commonwealth
appeared to argue felony-three unlawful contact with a minor based on the
felony-three charge of indecent assault. Under these circumstances, the



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Pa.C.S. § 1103(2); Apprendi, 530 U.S. at 490. Consequently, Appellant’s

sentence of ten to twenty years’ imprisonment for that offense must be

vacated. Because the trial court directed the sentence for the unlawful contact

with a minor to run consecutively to the sentence for rape of a child, the

overall sentencing scheme has been disturbed. Accordingly, we must vacate

the judgment of sentence and remand this matter to the trial court for

resentencing.   See Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa.

Super. 2013).

      Judgment of sentence vacated.          Case remanded for resentencing.

Counsel’s petition to withdraw denied. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




evidence was not so overwhelming or essentially uncontradicted that the
Apprendi error was harmless.


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