No. 1542 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Montgomery County, Criminal Division, at No. 354-78.
Douglas M. Johnson, Public Defender, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wickersham, Brosky and Hoffman, JJ.
[ 333 Pa. Super. Page 267]
This is an appeal from the order denying appellant's motion to vacate sentence. Appellant contends that the sentence he received on the charge of corruption of minors*fn1 was illegal because that offense had merged with the crimes of indecent assault*fn2 and indecent exposure*fn3 for
[ 333 Pa. Super. Page 268]
which he was given consecutive sentences. We agree with appellant in part and, for the reasons that follow herein, vacate the sentence for indecent exposure and affirm the sentences for indecent assault and for corruption of minors, but with credit given for the time served on the indecent exposure conviction.
On May 31, 1978, appellant pled guilty to the charges of indecent exposure, indecent assault, and corruption of minors. These charges arose out of an incident which occurred on January 10, 1978. On that date, appellant entered a home in order to provide exterminating services for the residents. There, he induced a four year old girl to sit on his lap, at which time he placed his hand under her shirt and touched her chest. He then opened his trousers, exposed his genitals, and had the girl touch his genitals until he ejaculated on her hands.
On July 7, 1978, appellant was sentenced to consecutive terms of one to two years for indecent assault, one to two years for indecent exposure, and five years probation for corruption of minors. On July 12, 1978, a petition to withdraw his guilty plea was filed by appellant on the basis that the offenses of indecent exposure and indecent assault should have merged for purposes of sentencing. This petition was denied on July 25, 1978 and an appeal from that denial was filed on August 17, 1978 with the Superior Court which affirmed the judgment of sentence.*fn4 274 Pa. Super. 628, 423 A.2d 1303 (1979).
[ 333 Pa. Super. Page 269]
On March 5, 1982, appellant filed a motion to vacate sentence.*fn5 The motion was denied on April 20, 1982 and this appeal timely followed.
Appellant argues that the crime of corruption of minors merged with the offenses of indecent assault and indecent exposure for sentencing purposes. For the reasons that follow ...