J-S19043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
             v.                         :
                                        :
HECTOR SUAREZ,                          :
                                        :
                   Appellant            :           No. 1734 EDA 2015

           Appeal from the Judgment of Sentence January 22, 2015
              in the Court of Common Pleas of Monroe County,
             Criminal Division, No(s): CP-45-CR-0000523-2014

COMMONWEALTH OF PENNSYLVANIA            :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
             v.                         :
                                        :
HECTOR SUAREZ,                          :
                                        :
                   Appellant            :           No. 1748 EDA 2015

           Appeal from the Judgment of Sentence January 22, 2015
              in the Court of Common Pleas of Monroe County,
             Criminal Division, No(s): CP-45-CR-0001814-2014


BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED JULY 27, 2016

        Hector Suarez (“Suarez”) appeals from the judgment of sentence

entered following his conviction of one count each of indecent assault of a

person less than 13 years of age, endangering the welfare of children

(“EWOC”), and corruption of minors.1        We reverse and remand for

resentencing.


1
    18 Pa.C.S.A. §§ 3126, 4304, 6301.
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        Suarez was charged, at two criminal informations, with crimes arising

from the sexual assault of his granddaughter, N.D.2          The informations

resulted from accusations that on more than one occasion, while babysitting

N.D., Suarez licked and touched her “private part.”       Trial Court Opinion,

5/15/15, at 1-2, 4.       The criminal information filed at No. 523 CR 2014

referred to the time period between May 1, 2013, and September 7, 2013,

and set forth the following charges:

        1. Two counts of criminal attempt (aggravated indecent assault
        of a child) (first-degree felony), see 18 Pa.C.S.A. § 901;

        2. Two counts of aggravated indecent assault of a child-less than
        13 years old (second-degree felony), see id. § 3125(a)(7);

        3. Two counts of aggravated indecent assault of a child (first-
        degree felony), see id. § 3125(b);

        4. Indecent assault of a person less than 13 years of age (third-
        degree felony), see id. § 3126(a)(7);

        5. EWOC (third-degree felony), see id. § 4304(a)(1); and

        6. Corruption of minors - defendant age 18 or above (third-
        degree felony), see id. § 6301(a)(1)(ii).

The criminal information filed at No. 1814 CR 2014 referred to the time

period between November 1, 2012, and March 12, 2013, and set forth the

following charges:

        1. Unlawful contact with a minor-sexual offenses (third-degree
        felony), see 18 Pa.C.S.A. § 6318(a)(1);

        2. Indecent assault of a person less than 13 years of age (first-
        degree misdemeanor), see id. § 3126(a)(7);

2
    At the time of trial, N.D. was eleven years old.


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      3. EWOC (first-degree misdemeanor), see id. § 4304(a)(1); and

      4. Corruption of minors (first-degree misdemeanor), see id.
      § 6301(a)(1)(ii).

The two cases were consolidated for trial.

      The matter proceeded to a jury trial. At the conclusion of the trial, five

charges were listed for deliberation on the jury’s verdict sheet:           (1)

aggravated indecent assault of a child; (2) indecent assault of a person less

than 13    years of age; (3) EWOC; (4) corruption             of   minors; and

(5) involuntary deviate sexual intercourse with a child. The verdict sheet did

not indicate the time period or date of any of the listed offenses, or the

criminal information number corresponding to each offense.            Following

deliberations, the jury found Suarez not guilty of aggravated indecent

assault of a child and involuntary deviate sexual intercourse with a child.

The jury convicted Suarez of the three remaining charges: indecent assault

of a person less than 13 years of age, EWOC and corruption of minors.

      The trial court imposed the following sentences at No. 523 CR 2014.

For his convictions of indecent assault of a person less than 13 years of age

and corruption of minors, as third-degree felonies, the trial court sentenced

Suarez to concurrent prison terms of 18 to 60 months. For his conviction of

EWOC, as a third-degree felony, the trial court imposed a consecutive prison

term of 18 to 60 months.




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     At No. 1814 CR 2014, for each of his convictions of indecent assault of

a person less than 13 years of age, EWOC and corruption of minors, as

third-degree felonies, the trial court imposed prison terms of 18 to 60

months, to be served concurrent to each other and concurrent to the

sentences imposed at No. 523 CR 2014. Thus, the trial court imposed an

aggregate sentence of 36-120 months in prison.

     Suarez filed a Post-Sentence Motion, which the trial court denied.

Thereafter, Suarez filed the instant timely appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

     Suarez presents the following claims for our review:

     I. Did the trial court abuse its discretion by sentencing [Suarez]
     to multiple counts of the same charge[,] when the jury only
     convicted [him of] three counts o[n] the verdict [sheet]?

     II. Did the trial court abuse its discretion by grading the
     [charges] of indecent assault [of a] person less than 13 years of
     age, [EWOC] and corruption of [a] minor as felonies of the third
     degree, by finding there was a course of conduct[,] when there
     were two distinct acts that were alleged to occur a significant
     time apart[,] where the charges in this indictment were first in
     time   and    charged    in   [the]   criminal   information   as
     misdemeanors[, and therefore,] there was no course of conduct?

     III. Did the trial court abuse its discretion by grading the three
     counts associated with [No.] 1814 CR 2014[,] at the time of
     sentencing[,] as felonies[,] where they are only charged as
     misdemeanors in the criminal information?

     IV. Did the trial court abuse its discretion by not setting aside
     the verdict [as] to all counts[,] where it was against the
     sufficiency of the evidence for a felony conviction [based on a]
     course of conduct?


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      V. Did the trial court abuse its discretion by sending one verdict
      [sheet,] under both case numbers[,] where there was no
      distinction as to which charge went to which case if the intent
      was to have the jury consider[] multiple charges from both
      cases?

      VI. Did the trial court abuse its discretion by sentencing [Suarez]
      to concurrent time to the related charge[s at No.] 523 CR 2014,
      for all three charges related to [No.] 1814 CR 2014[,] where
      there was no distinction made [concerning] which count applied
      to which case for the jury?

      VII. Did the trial court abuse its discretion by sentencing
      [Suarez] to consecutive sentences for each of the three
      charges[,] as the conviction[s] for all three charges all relate to
      the same instance and all relate to each other?

      VIII. Did the trial court abuse its discretion by not setting aside
      the verdict [on] all counts where it was against the weight of the
      evidence for a felony conviction for course of conduct?

Brief for Appellant at 4 (issues renumbered for ease of disposition).

      Suarez first claims that the trial court improperly imposed two

sentences for each conviction of indecent assault, EWOC and corruption of

minors.   Id. at 12.   Suarez contends that, in accordance with the verdict

sheet, the jury convicted him of only one count of each offense.            Id.

Therefore, Suarez asserts, the trial court could only impose one sentence for

each offense. Id.

      A claim that the trial court lacked authority to impose a sentence

implicates the legality of that sentence. See Commonwealth v. Nava, 966

A.2d 630, 632 (Pa. Super. 2009) (recognizing that a sentence is illegal

where     no     statutory    authority    for    the     sentence      exists).



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“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. Brougher, 978 A.2d 373, 377 (Pa. Super.

2009) (citation omitted).

      Our review of the record discloses that the jury verdict sheet listed five

charges for the jury’s consideration. Verdict Sheet, 10/30/14. The verdict

sheet did not indicate that Suarez was charged with multiple counts of each

listed crime. See id. Further, our review of the trial court’s jury instructions

discloses that the trial court in no way indicated that Suarez was charged

with more than one count of each charge listed on the verdict sheet. See

N.T., 10/30/14, at 98-122. Thus, based upon our review of the record, we

conclude that the trial court erred in imposing two sentences for each guilty

verdict.    We therefore reverse the trial court’s judgment of sentence and

remand for resentencing.3

      In his second and third claims, Suarez challenges the trial court’s

grading of his convictions.   Brief for Appellant at 9.    Specifically, Suarez

claims that the trial court improperly graded each conviction as a third-

degree felony, based upon a “course of conduct.” Id. Suarez argues that

the charges against him were based on two separate incidents, occurring

months apart, and that the criminal information listed the charges pertaining

3
  As we will discuss infra, our disposition of Suarez’s remaining claims may
impact the sentencing scheme imposed by the trial court. Therefore, we
reverse Suarez’s judgment of sentence in its entirety, and remand for
resentencing on his three convictions.


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to the second incident as misdemeanors. Id. According to Suarez, “[t]here

is no repetitive pattern of behavior in this case, as one act was alleged to

occur in October/November[,] when [N.D.’s] mother went to the hospital.

Another act was not alleged until after May of the following year.” Id. at 10.

Because the two incidents were isolated and unrelated occurrences, Suarez

argues, there was no “course of conduct.” Id.

      Suarez additionally challenges the grading of the offenses charged at

No. 1814 CR 2014 as felonies, where they were only charged as

misdemeanors in the criminal information. Id. at 15. Suarez points out that

there is no indication on the verdict sheet that the jury found the additional

elements necessary to convict him of third-degree felonies. Id.

      In his related fourth claim, Suarez challenges the sufficiency of the

evidence underlying the jury’s verdicts.      Id. at 19.   In this claim, Suarez

again argues that the evidence did not establish a continuing course of

conduct, necessary to grade the offenses as third-degree felonies. Id.

       “A claim that the court improperly graded an offense for sentencing

purposes implicates the legality of a sentence.”           Commonwealth v.

Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). “When we address the

legality of a sentence, our standard of review is plenary[,] and is limited to

determining   whether   the   trial   court   erred   as   a   matter   of   law.”

Commonwealth v. Graeff, 13 A.3d 516, 518 (Pa. Super. 2011).




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     Regarding Suarez’s challenge to the sufficiency of the evidence, the

standard we apply is

     whether, viewing all the evidence admitted at trial in the light
     most favorable to the verdict 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
     [trier] 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

     Pursuant to section 3126 of the Crimes Code, the offense of indecent

assault of a person less than 13 years of age is a misdemeanor of the first

degree unless “there has been a course of conduct of indecent assault by the

person….” 18 Pa.C.S.A. § 3126(b)(7). The Crimes Code similarly provides

that the offense of EWOC “constitutes a misdemeanor of the first degree.

However, where there is a course of conduct of endangering the welfare of a

child, the offense constitutes a felony of the third degree.”   18 Pa.C.S.A.

§ 4304(a)(1), (b).




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      Crimes Code section 6301(a)(1) defines the crime of corruption of

minors and addresses the grading of the offense as follows:

      (i) Except as provided in subparagraph (ii), whoever, being of
      the age of 18 years and upwards, by any act corrupts or tends to
      corrupt the morals of any minor less than 18 years of age, or
      who aids, abets, entices or encourages any such minor in the
      commission of any crime, or who knowingly assists or
      encourages such minor in violating his or her parole or any order
      of court, commits a misdemeanor of the first degree.

      (ii) Whoever, being of the age of 18 years and upwards, by any
      course of conduct in violation of Chapter 31 (relating to sexual
      offenses) corrupts or tends to corrupt the morals of any minor
      less than 18 years of age, or who aids, abets, entices or
      encourages any such minor in the commission of an offense
      under Chapter 31 commits a felony of the third degree.

18 Pa.C.S.A. § 6301(a)(1)(i), (ii).

      This Court has held that “course of conduct” is an additional fact,

which must be found by a jury.        See Commonwealth v. Powpow, 844

A.2d 13, 18 (Pa. Super. 2004) (stating that “‘[c]ourse of conduct’ is not an

element of the offense of [EWOC], but it is an additional fact, a jury

question, that impacts the grading of the offense.”). Therefore, “in order to

be graded as a third-degree felony, the Commonwealth must allege in the

information and present evidence at trial of the additional factor of ‘course of

conduct,’ and the jury must be instructed on such.” Id. “[The trial court]

cannot merely assume the jury [finds] this additional fact[,] when no

evidence of it [is] presented at trial and no mention of it [is] made in the

jury’s charge.” Id.




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     Crimes Code sections 3126, 4304 and 6301 do not define “course of

conduct.”   However, in Commonwealth v. Kelly, 102 A.3d 1025 (Pa.

Super. 2014), this Court explained the meaning of the phrase, “course of

conduct,” as used in grading the offense of corruption of minors:

     [Crimes Code] Section 6301 does not define “course of conduct,”
     however, the phrase is not alien to the Crimes Code. “Course of
     conduct” is defined in multiple instances elsewhere in the Crimes
     Code and, in each of those instances, “course of conduct” implies
     more than one act over time. See 18 Pa.C.S.[A.] § 2709[](f)
     (defining “[c]ourse of conduct” as used in the statute defining
     the offense of harassment as “[a] pattern of actions composed of
     more than one act over a period of time, however short,
     evidencing a continuity of conduct”); 18 Pa.C.S.[A.] § 2709.1(f)
     (defining “[c]ourse of conduct” as used in the stalking statute as
     “[a] pattern of actions composed of more than one act over a
     period of time, however short, evidencing a continuity of
     conduct”).    Although recognizing that the harassment and
     stalking statutes provide a statutory definition for the phrase,
     this Court has “explained that ‘[c]ourse of conduct by its very
     nature requires a showing of a repetitive pattern of behavior.’”
     Commonwealth v. Leach, 1999 PA Super 72, 729 A.2d 608,
     611 (Pa. Super. 1999) (quoting Commonwealth v. Urrutia,
     439 Pa. Super. 227, 653 A.2d 706, 710 (Pa. Super. 1995)).

     The phrase “course of conduct” is also used in the grading of the
     offense of [EWOC]. 18 Pa.C.S.[A.] § 4304(b) (“An offense under
     this section constitutes a misdemeanor of the first degree.
     However, where there is a course of conduct of endangering the
     welfare of a child, the offense constitutes a felony of the third
     degree.”) (emphasis added). Although the EWOC statue does
     not define “course of conduct,” the phrase is clearly used in that
     context to differentiate the penalties for single and multiple
     endangering acts. Likewise, indecent assault is graded as a
     third[-]degree felony where “[t]here has been a course of
     conduct of indecent assault by the person.” 18 Pa.C.S.[A.]
     § 3126(b)(3)(ii).

                               *        *   *




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       Given the well-established meaning of the phrase, “course of
       conduct,” we ascertain no ambiguity in its use in subsection
       (a)(1)(ii) of the corruption of minors statute. Consequently, we
       hold that the use of the phrase “course of conduct” in the first
       provision of subsection (a)(1)(ii) imposes a requirement of
       multiple acts over time, in the same manner in which the term is
       used in the harassment, stalking and EWOC statutes….

Kelly, 102 A.3d at 1030-31 (emphasis omitted). We conclude that this well-

established meaning of the phrase, “course of conduct” applies to the

grading of each of Suarez’s convictions.

       At trial, the Commonwealth presented the testimony of N.D.          N.D.

testified that Suarez, her grandfather, “touched my private part and licked

it.”   N.T., 10/29/14, at 26.    When asked to define “private part,” N.D.

indicated that it was the part that she peed from. Id. at 27. Further, N.D.

indicated that the touching and licking took place on more than one

occasion, underneath her clothing, at two different locations. Id. at 27-28.

       At the conclusion of the trial, the trial court gave the following jury

instructions regarding the charges of EWOC and corruption of minors:

            [Suarez] has been charged with [EWOC] as a course of
       conduct. To find [Suarez] guilty of this offense, you must find
       that each of the following four elements have been proven
       beyond a reasonable doubt.

             First, that [Suarez] engaged in a course of conduct of
       endangering the welfare of a child by violating a duty of care,
       protection or support. A course of conduct means a pattern of
       actions imposed [sic] of more than one act over a period of time,
       however short, evidencing continuity of conduct[.]

                                *        *   *




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           If after considering the evidence you find that the
     Commonwealth has established, beyond a reasonable doubt, all
     of the elements I have stated, you must find [Suarez] guilty of
     [EWOC]; otherwise, you must find [Suarez] not guilty.

          The fourth charge for your consideration [that Suarez] has
     been charged with is corruption of minors, again as a course of
     conduct. To find [Suarez] guilty of this offense, you must find
     that each of the following three elements has been proven
     beyond a reasonable doubt:

                               *        *   *

           And third, that [Suarez] corrupted or tended to corrupt the
     morals of [N.D.] by committing a sexual assault against her and
     that [Suarez] engaged in a course of conduct of corrupting
     minors.    A course of conduct means a pattern of actions
     composed of more than one act over a period of time, however
     short, evidencing continuity of conduct.

N.T., 10/30/14, at 105-07.

     Consequently, as to the offenses of EWOC and corruption of minors,

the record reflects that the Commonwealth alleged in the             criminal

information, and presented evidence at trial, of the additional factor of

“course of conduct,” and the trial court instructed the jury on “course of

conduct.”     See Powpow, 844 A.2d at 18.       Accordingly, the evidence is

sufficient to establish the crimes of EWOC and corruption of minors as third-

degree felonies, and the trial court properly graded these offenses at

sentencing.

     Regarding Suarez’s conviction of indecent assault of a person less than

13 years of age, N.D.’s testimony was sufficient to establish that Suarez had

engaged in a course of conduct as to this offense. However, the trial court



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never instructed the jury as to the element of “course of conduct,” as it

pertained to the offense of indecent assault. In its charge to the jury, the

trial court stated the following:

      To find [Suarez] guilty of this offense, you must find the
      following elements have been proven beyond a reasonable
      doubt:

            First, that [Suarez] had indecent contact with [N.D.] To
      prove that [Suarez] had indecent contact with the alleged victim,
      the Commonwealth must prove that [Suarez] brought about a
      touching of the sexual or other intimate parts of the body of one
      of them by the other and that [Suarez] did so for the purpose of
      arousing or gratifying his own or the victim’s sexual desire;

            Second, that [N.D.] was less than 13 years old.

            It is no defense that [Suarez] did not know the age of the
      child or that the child lied about her age, or that [Suarez]
      honestly believed that the child was 13 years or older, or
      [Suarez] reasonably believed the child was 13 years or older.

N.T., 10/30/14, at 104. No further instruction was issued as to this offense.

      It is clear from the record that the jury was not instructed on the

element of “course of conduct,” nor told that it must find a “course of

conduct” in order to convict Suarez of indecent assault. “The law presumes

that the jury will follow the instructions of the court.” Commonwealth v.

Chmiel, 30 A.3d 1111, 1184 (Pa. 2011).          Under these circumstances,

although the evidence was sufficient to establish that Suarez had engaged in

a course of conduct of indecent assault of a person less than 13 years of

age, we conclude that the trial court erred in grading the offense as a third-

degree felony. We therefore reverse the judgment of sentence imposed for



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Suarez’s conviction of indecent assault of a person less than 13 years of age,

as a third-degree felony and remand for resentencing of the offense as a

first-degree misdemeanor.     See 18 Pa.C.S.A. § 3126(b)(3).      Because our

resolution may disrupt the trial court’s sentencing scheme, we reverse the

judgment of sentence in its entirety, and remand for resentencing.

      In his fifth claim, Suarez argues that the trial court improperly gave to

the jury one verdict sheet, under two numbers, “where there was no

distinction as to which charge went to which case[,] if the intent was to have

the jury consider[] multiple charges from both cases[.]” Brief for Appellant

at 13.   Suarez argues that “[i]f the jury verdict sheet only indicates a

conviction to three (3) counts, then [Suarez] can only be sentenced on three

(3) counts.”   Id.     Further, Suarez asserts that, because there was no

indication on the jury sheet as to whether each charge was a misdemeanor

or felony, there was no way for the jury to know what it was deciding. Id.

      Our review of the record discloses that Suarez lodged no objection to

the jury sheet.      See N.T., 10/30/14, at 63-69 (wherein the trial court

reviews the verdict sheet with counsel, and defense counsel offers no

objection on this basis), 97 (wherein the trial court informs counsel that it

will review the jury sheet with the jury, and defense counsel lodges no

objection to the verdict sheet), 122 (at the close of the trial court’s jury

instructions, defense counsel lodges no objection to the jury sheet).




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Accordingly, this claim is not preserved for our review.        See Pa.R.A.P.

302(a) (stating that an issue cannot be raised for the first time on appeal).

         In his sixth claim, Suarez asserts that the trial court abused its

discretion by imposing concurrent sentences at No. 1814 CR 2014, when the

jury had convicted him of only three offenses. Brief for Appellant at 14. As

set forth above, we conclude that the trial court erred in sentencing Suarez

for six offenses, where the jury rendered a verdict as to only three offenses.

We further addressed the trial court’s grading of the offenses, and the

sufficiency of the evidence underlying those offenses, supra.     As we have

already addressed Suarez’s sixth claim above, we will not again address this

issue.

         In his seventh claim, Suarez argues that the trial court improperly

sentenced him to consecutive sentences for each of the three felony

convictions, as each conviction relates to the same incident.       Id. at 16.

Suarez posits that “if there was no [i]ndecent [a]ssault, there would be no

other crimes[,]” and argues that the crimes should have merged at

sentencing. Id.     If not merged, Suarez asserts that the trial court should

have imposed concurrent sentences.4 Id.



4
  To the extent that Suarez challenges the discretionary aspects of his
sentence, the claim is waived. Suarez failed to include, in his brief, a
statement of reasons relied upon for allowance of appeal, as required by
Pa.R.A.P. 2119(f). See Commonwealth v. Ladamus, 896 A.2d 592, 595
(Pa. Super. 2006) (stating that before a challenge to the sentence will be
heard on the merits, an appellant, in order to invoke the Court’s jurisdiction,


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      The    question   of   whether      a   defendant’s      convictions   merge   for

sentencing     purposes      implicates       the   legality      of   the    sentence.

Commonwealth v. Spruill, 80 A.3d 453, 462 (Pa. 2013). Consequently,

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

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

      Section 9765 of the Sentencing Code, which governs merger of

sentences, provides 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 the offense are included in the statutory elements of
      the other offense. Where crimes merge for sentencing purposes,
      the court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S.A. § 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.” Baldwin, 985 A.2d at 833.

      Pursuant to the Crimes Code,

      [a] person is guilty of indecent assault if the person has indecent
      contact with the complainant, causes the complainant to have
      indecent contact with the person or intentionally causes the
      complainant to come into contact with seminal fluid, urine or
      feces for the purpose of arousing sexual desire in the person or
      the complainant and:

                                 *            *     *



must set forth in his brief a separate and concise statement of reasons relied
upon in support of his appeal).



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      (7) the complainant is less than 13 years of age[.]

18 Pa.C.S.A. § 3126(a)(7).

      Regarding the crime of corruption of minors, the Crimes Code provides

the following:

      [W]hoever, being of the age of 18 years and upwards, by any
      act corrupts or tends to corrupt the morals of any minor less
      than 18 years of age, or who aids, abets, entices or encourages
      any such minor in the commission of any crime, or who
      knowingly assists or encourages such minor in violating his or
      her parole or any order of court, commits a misdemeanor of the
      first degree.

18 Pa.C.S.A. § 6301(a)(1)(i).

      Finally, the Crimes Code defines the crime of EWOC as follows:

      A parent, guardian or other person supervising the welfare of a
      child under 18 years of age, or a person that employs or
      supervises such a person, commits an offense if he knowingly
      endangers the welfare of the child by violating a duty of care,
      protection or support.

18 Pa.C.S.A. § 4304(a)(1).

      In Commonwealth v. Martz, 926 A.2d 514 (Pa. Super. 2007), this

Court held that indecent assault and corruption of minors have different

statutory elements[,] and do not merge for sentencing purposes.        Id. at

526. Accordingly, Suarez’s claim in this regard fails.

      The crime of EWOC contains the element of “violating a duty of care,

protection or support[,]” which is not an element of indecent assault of a

person under 13 years of age. See 18 Pa.C.S.A. §§ 3126(a)(7), 4304(a)(1).

The crime of indecent assault of a person less than 13 years of age includes



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the element of “indecent contact,” an element not included in the statute

defining EWOC. See id.     Consequently, we conclude that EWOC does not

merge with the crime of indecent assault of a person less than 13 years of

age. Accordingly, Suarez’s claim in this regard lacks merit.

      Finally, Suarez challenges the verdict as against the weight of the

evidence. Brief for Appellant at 18. Suarez asserts that the evidence does

not show a “course of conduct,” but instead shows “two [] distinct incidents

that are unrelated and a long time apart[, so] that to call those incidents a

course of conduct is a shock to one’s conscience.” Id.




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      In reviewing Suarez’s claim,5 we are cognizant that

      [t]he weight of the evidence is a matter exclusively for the finder
      of fact, who is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses. A new trial is
      not warranted because of a mere conflict in the testimony and
      must have a stronger foundation than a reassessment of the
      credibility of witnesses. Rather, the role of the trial judge is to
      determine that notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them
      equal weight with all the facts is to deny justice.

      On appeal, our purview is extremely limited and is confined to
      whether the trial court abused its discretion in finding that the
      jury verdict did not shock its conscience. Thus, appellate review
      of a weight claim consists of a review of the trial court’s exercise
      of discretion, not a review of the underlying question of whether
      the verdict is against the weight of the evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)

(quotation marks and citations omitted).

      Our review discloses that the Commonwealth’s evidence established

that Suarez had engaged in “multiple acts over time,” based upon N.D.’s

testimony. See Kelly, 102 A.3d at 1031 (defining “course of conduct”). It

is the exclusive province of the finder of fact to determine the weight of

relevant evidence. Commonwealth v. Mitchell, 883 A.2d 1096, 1110-11

(Pa. Super. 2005). Here, the jury credited the testimony of N.D. that Suarez

had engaged in multiple acts, over time. This Court cannot substitute our

judgment for that of the trier of fact. Commonwealth v. Manley, 985 A.2d

5
  Our review discloses that Suarez properly preserved this claim in a timely
Post Sentence Motion. See In re J.B., 106 A.3d 76, 97 (Pa. 2014) (stating
that a challenge to the weight of the evidence must first be raised at the trial
level).



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256, 262 (Pa. Super. 2009). Further, our collective conscience is not

shocked by the verdict. Accordingly, we cannot grant Suarez relief on this

claim.

      Judgment of sentence reversed, case remanded for resentencing

consistent   with   this   Memorandum;   Superior   Court   jurisdiction   is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/27/2016




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