J-S14009-18




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
              v.                 :
                                 :
                                 :
     ANGEL NATAL                 :
                                 :
                 Appellant       :             No. 876 EDA 2017
                                 :

            Appeal from the Judgment of Sentence February 17, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004656-2015


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 09, 2018

        Angel Natal appeals from the judgment of sentence imposed on

February 17, 2017, in the Court of Common Pleas of Philadelphia County. The

trial court found Natal guilty of rape (forcible compulsion), rape (unconscious

victim), statutory sexual assault, sexual assault, corruption of minors, and

indecent assault.1 The charges stemmed from Natal’s sexual contact with his

13-year-old stepsister. The trial court sentenced Natal to an aggregate term




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   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 3121(a)(1) and (a)(3), 3122.1, 3124.1, 6301, and 3126(a)(2).
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of imprisonment of six to 15 years, followed by a 15-year term of probation.2

Natal contends the sentence for the indecent assault charge is illegal “because

that charge merged with the rape conviction as of 18 Pa.C.S. § 3121(a)(1) for

purposes of sentencing given that both convictions are based on the act of

forcible intercourse[.]” Natal’s Brief at 3, citing Commonwealth v. Smith,

459 A.2d 777, 788 (Pa. Super. 1983). Based on the following, the judgment

of sentence for indecent assault (forcible compulsion) is vacated.         The

judgment of sentence in all other respects is affirmed.3


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2 Specifically, the trial court imposed a sentence of six to 15 years’
imprisonment, followed by five years’ probation on the rape (forcible
compulsion) charge; 10 years’ probation on the statutory sexual assault
charge, to run consecutively with the rape charge; 10 years’ probation on the
sexual assault charge, to run concurrent with the rape charge; five years’
probation on the corruption of minors charge, to run concurrent to the rape
charge; five years’ probation on the indecent assault charge, to run concurrent
with the rape charge; and six to 15 years’ incarceration followed by five years
probation on the rape (unconscious victim) charge, to run concurrent to the
rape - forcible compulsion charge.

3 This Court, on July 5, 2017, ordered Natal to show cause why his March 6,
2017 appeal should not be quashed as interlocutory, as Natal had filed his
appeal from the verdict of guilt entered on October 18, 2016.              See
Commonwealth v. Charles O’Neill, 578 A.2d 1334, 1335 (Pa. Super. 1990)
(“In criminal cases appeals lie from the judgment of sentence rather than from
the verdict of guilt.”).    Natal failed to file a response to this Order.
Subsequently, however, Natal filed a petition to amend the notice of appeal.
On September 19, 2017, this Court directed Natal to file an amended notice
of appeal referencing the February 17, 2017 judgment of sentence, and
permitted Natal to file a Pa.R.A.P. 1925(b) statement of errors complained of
on appeal. On September 21, 2017, Natal filed an amended notice of appeal
and concise statement.




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       The parties are well acquainted with the procedural history that is fully

set forth in the trial court’s opinion and, therefore, we do not restate it herein.

See Trial Court Opinion, 10/5/2017, at 1-2.

       Natal claims his five-year term of probation for rape by forcible

compulsion (imposed consecutively to the six-to-fifteen year term of

imprisonment for that offense) and his concurrent five-year term of probation

for indecent assault should merge for purposes of sentencing.

       Preliminarily, we note the merger claim presented by Natal is a

challenge to the legality of the sentence and, therefore, is not subject to

waiver even though Natal raised this claim for the first time in his Pa.R.A.P.

1925(b) statement.4 See Commonwealth v. Glass, 50 A.3d 720, 730 (Pa.

Super. 2012) (“[A] claim that crimes should have merged for purposes of

sentencing challenges the legality of a sentence and, thus, cannot be

waived.”). In reviewing such a claim, “our scope of review is plenary and our

standard of review is de novo.” Commonwealth v. Lomax, 8 A.3d 1264,

1267 (Pa. Super. 2010).

       Pennsylvania’s merger doctrine is codified at Section 9765 of the

Sentencing Code, as follows:

       No 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

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4 Natal raised his merger claim for the first time in his September 21, 2017
concise statement.


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      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.

      Relevant to the merger issue raised herein are Natal’s convictions for

rape (forcible compulsion), 18 Pa.C.S. § 3121(a)(1), and indecent assault

(forcible compulsion), 18 Pa.C.S. § 3126(a)(2). “A person commits a felony

of the first degree when the person engages in sexual intercourse with a

complainant: … (1) By forcible compulsion.” 18 Pa.C.S. § 3121(a)(1).         “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: … (2) the person does so by forcible compulsion[.]” 18

Pa.C.S. § 3126(a)(2).

      The Crimes Code defines “Forcible compulsion” in relevant part as

“Compulsion by use of physical, intellectual, moral, emotional or psychological

force, either express or implied. . . .” 18 Pa.C.S. § 3101. The Crimes Code

defines “Indecent contact” as “Any touching of the sexual or other intimate

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

any person. Id. Furthermore, “Sexual intercourse” is defined as follows: “In

addition to its ordinary meaning, includes intercourse per os or per anus, with

some penetration however slight; emission is not required.” Id.

      Generally, “a conviction for indecent assault will merge into a conviction

for rape.” Commonwealth v. Smith, 459 A.2d 777, 788 (Pa. Super. 1983).

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However, “when an indecent assault conviction is predicated upon an act

separate from the act of forcible intercourse, the indecent assault conviction

does not merge with a conviction for rape. This is true whether the act which

constitutes   indecent   assault   is   committed    immediately prior    to,   or

concurrently with the rape.” Commonwealth v. Richter, 676 A.2d 1232,

1236 (Pa. Super. 1996) (defendant fondled victim’s breasts before placing his

penis in her vagina).

      The trial court, the fact-finder in this case, found merit in Natal’s claim,

stating in its Rule 1925(a) opinion:

      Because the court concedes the indecent assault conviction
      merges with the rape forcible compulsion conviction, no sentence
      may be imposed on the lesser included crime of indecent assault.
      Therefore, the judgment of sentence with regard to the indecent
      assault should be vacated.”

Trial Court Opinion, 10/5/2017, at 2-3.         The Commonwealth, however,

asserts:

      Because the court convicted [Natal] of indecent assault for groping
      the victim all over her body, and convicted him of rape for
      penetrating her vaginally, two separate acts, it properly imposed
      separate concurrent sentences for the two offenses.

                                        ****

       … The victim awoke on her living room couch to find her pants
      around her ankles and [Natal] straddling her and groping her all
      over her body (N.T. 10/12/16, 66). He then gripped her right
      thigh with one hand, holding it down, and inserted his penis in her
      vagina. (N.T. 10/12/16, 17, 28-29). She pushed him off and he
      went upstairs. (N.T., 10/12/16, 25-26).




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Commonwealth’s Brief, at 5, 6. Based on our review, we agree with the trial

court that merger applies here, since we find Natal’s rape and indecent assault

convictions arose from the same act of forcing the victim to engage in sexual

intercourse.

      On direct examination, the victim recounted the sexual encounter with

Natal:

      Then I fell asleep on the couch. And I woke up to a sharp pain.
      And I woke up and looked, saw him on top of me. And I looked
      down and he – I saw his pants down, his penis inside my vagina.

                                     ****
      As I said, his pants were down, and his penis was inside my
      vagina. And when I was trying to get him off of me, I couldn’t.
      But as soon as he moved, I pushed him off.

N.T., 10/12/2016, at 17, 22. The victim further testified:

      Q. Did he touch you in any other places on your body?

      A. My thigh.

      Q. All right. Describe that for the Court. How did he touch your

      thigh?

      A. He was gripping onto it.

      Q. He was gripping your thigh?

      A. Yes.

                                       ****

      Q. Now, you said he was holding your thigh. What is he – can you
      describe that a little more. What does that mean, holding your –
      tell us what does that mean.

      A. Like he was just holding me down while he was doing –


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       Q. Holding your thigh down as this was happening?

       A. As he fell when I pushed him.

Id. at 28-29.

       Later, on cross examination, the victim was questioned:

       Q. Okay. Now, you testified that, I believe, when you – Mr. Natal
       was holding your thigh while this was happening. He had gripped
       your thigh; is that right?

       A. That was when he moved.              That was when he gripped my
       thigh, when I pushed him off.

       Q. There was a shift?

       A. Yes.

       Q. And when he shifted he grabbed your thigh?

       A. Yes.

                                          ****

       Q. Before grabbing your thigh, where were his hands?

       A. He was holding my wrist.

Id. at 54-55.

       While the Commonwealth maintains that Natal’s indecent assault

conviction was based upon the separate act of Natal “groping the victim all

over her body,”5 the Commonwealth has mischaracterized the record. The

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5 The Commonwealth cites to page 66 of the trial transcript, referencing a
portion of a DHS report, which was used by trial counsel on cross examination
to impeach the victim’s testimony. However, the victim only testified trial
counsel read the report correctly and she did not remember the statement:



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victim’s specific testimony revealed Natal gripped her thigh and held her down

while he inserted his penis in her vagina. Therefore, on this record, we agree

with the trial court that merger applies, as the single act of forcible intercourse

underlies Natal’s convictions for rape and indecent assault. Accordingly, we

vacate the judgment of sentence solely with respect to the concurrent five-

year term of probation imposed on the indecent assault conviction.6




____________________________________________




       By [Counsel for Natal]:

       Q. Showing you a portion of what I’ve marked as D-2, where it
       says child told RS 2/13/2015 child and family went to dinner. Child
       said that she fell asleep on the couch. When she woke up, AP was
       touching her all over her body, and tried to get her pants down.
       Child pushed AP away, told him to stop. Child says she ran to her
       bedroom and locked the door. Did I read that correctly?

       A. Yes.

       Q. Okay. And isn’t that what you told the DHS worker who came?

       A. I don’t remember.

       Q. You don’t’ remember? Okay.

N.T., 10/12/2016, at 65-66.

6 Remand is not necessary in this case since our disposition does not upset
the trial court’s overall sentencing scheme. See Commonwealth v. Lomax,
8 A.3d 1264, 1268 (Pa. Super. 2010) (remand unnecessary where sentence
for indecent assault merged with sentence for rape of a child, and indecent
assault sentence could be vacated without upsetting overall sentencing
scheme).

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     Judgment of sentence for indecent assault (forcible compulsion) is

vacated. Judgment of sentence affirmed in all other respects. Jurisdiction

relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/18




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