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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                 v.                      :
                                         :
EDWIN A. FIKE,                           :
                 APPELLANT               :
                                         :
                                         :     No. 329 WDA 2016

          Appeal from the Judgment of Sentence January 8, 2016
             In the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0002026-2014

BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

JUDGMENT ORDER BY DUBOW, J.:                  FILED NOVEMBER 17, 2016

     Appellant, Edwin A. Fike, appeals from the Judgment of Sentence

entered by the Fayette County Court of Common Pleas on January 7, 2016,

following his December 7, 2015 guilty plea to one count each of Indecent

Assault and Corruption of Minors.1 Appellant avers that his two convictions

should be merged for sentencing purposes, urging this Court to adopt a

hybrid test for our merger analysis.   As this Court has previously rejected




1
  These charges arose out of a January 2009 incident in which Appellant
repeatedly grabbed the chest of his victim, a female cousin less than 13
years of age. Trial Court Opinion, filed 3/30/16, at 1. Appellant had two
prior convictions for Involuntary Deviate Sexual Intercourse and Indecent
Assault. Id. During sentencing, Appellant told the trial court he has “a hard
time with young girls.” Id.
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the hybrid test and found that Indecent Assault and Corruption of Minors do

not merge for sentencing purposes, we affirm.

     Appellant relies on Commonwealth v. Jones, 912 A.2d 815 (Pa.

2006), for the proposition that courts in this Commonwealth should apply a

hybrid approach to merger analysis in which they consider both the statutory

elements of the offenses as well as the facts in the well-pleaded complaint.

Appellant’s Brief at 7-9. However, Appellant ignores the fact that Jones is a

fractured, non-binding, plurality Opinion that the legislature superseded by

statute and that this Court rejected in favor of a statutory elements test.2

See Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007) (noting

the nonbinding nature of Jones and its inapplicability to offenses committed

after 42 Pa.C.S. § 9765 became effective).

     In Williams, this Court thoroughly analyzed the lead and dissenting

opinions of Jones in light of the legislature’s enactment of 42 Pa.C.S. §

9765, governing merger. Under Section 9765, “[n]o 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


2
   Under a hybrid test, courts are instructed to “evaluate the statutory
elements of each crime [as charged], with an eye to the specific allegations
leveled in the case” to determine “whether the defendant was charged and
convicted on a single set of facts that satisfies both offenses.”
Commonwealth v. Williams, 920 A.2d 887, 889 (Pa. Super. 2007)
(citation and quotation omitted). Under a statutory elements test, no two
offenses may merge unless “all of the statutory elements of one offense
coincide with the statutory elements of the other offense.” Id. at 891.



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elements of the other offense.”   42 Pa.C.S. § 9765.    In light of the clear

statutory language in Section 9765, this Court rejected the hybrid test in

favor of the statutory elements test. Williams, 920 A.2d at 891.

     In Commonwealth v. Martz, 926 A.2d 514, 526-27 (Pa. Super.

2007), this Court applied the statutory elements test adopted in Williams to

the issue now raised: whether Indecent Assault and Corruption of Minors

should merge for sentencing purposes. As this Court recognized, merger is

not required because:

     18 Pa.C.S.[] § 6301(a)(1) (corruption of minors) contains a
     statutory element that 18 Pa.C.S.[] § 3126(a)(7) (indecent
     assault) does not; namely, a person eighteen years and upwards
     engages in “any act” which corrupts or tends to corrupt the
     morals of a minor less than eighteen years of age is guilty of
     violating Section 6301(a)(1).   Under Section 6301(a)(1), the
     Commonwealth need not prove that the defendant had “indecent
     contact” with the complainant to be guilty of corruption of
     minors, “any act” which tends to corrupt the minor contravenes
     the statute. In contrast, to be guilty of violating Section
     3126(a)(7), the complainant has to be less than thirteen years
     of age and the defendant must have had “indecent contact” with
     the complainant, whereas “any act” engaged in by the defendant
     tending to corrupt the complainant will constitute a violation
     of Section 6301(a)(1).

Id. at 526.

     Put simply, binding precedent clearly dictates that (i) the hybrid test

does not apply to merger analysis in this Commonwealth; and (ii) under a

statutory elements test, the trial court did not err in finding that Indecent

Assault and Corruption of Minors do not merge for sentencing purposes.

     Judgment of Sentence affirmed. Jurisdiction relinquished.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2016




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