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COMMONWEALTH PENNSYLVANIA v. MICHAEL SAYKO (09/21/84)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 21, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL SAYKO, APPELLANT

No. 1542 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Montgomery County, Criminal Division, at No. 354-78.

COUNSEL

Douglas M. Johnson, Public Defender, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Wickersham, Brosky and Hoffman, JJ.

Author: Brosky

[ 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 herein, we agree, in part, with appellant's argument.

One test for determining whether one offense merges into another for sentencing purposes is whether one crime necessarily involves the other, i.e., the essential elements of one must also be the essential elements of the other. Commonwealth v. Williams, 290 Pa. Super. 209, 434 A.2d 717 (1981).*fn6

Instantly, appellant was sentenced for indecent assault, indecent exposure, and corruption of minors.*fn7 Although

[ 333 Pa. Super. Page 270]

    the information charging corruption is not clear on the point, the Commonwealth concedes that appellant's actions constituting either the indecent exposure or the indecent assault were the corrupting act forming the basis of the corruption of minors charge. Thus, once the Commonwealth had proven the crime of corruption of minors, no additional facts were necessary to prove either the offense of indecent exposure or the offense of indecent assault. Therefore, either the indecent assault or the indecent exposure offense merged with the crime of corruption of minors. See Commonwealth v. Watson, 311 Pa. Super. 89, 457 A.2d 127 (1983) (indecent assault conviction merged with conviction for corruption of minors where count for corruption of minors based on essentially the same act as indecent assault count); Cf. Commonwealth v. Buser, 277 Pa. Super. 451, 419 A.2d 1233 (1980).*fn8

We emphasize, however, that only one of the two crimes of indecent assault and indecent exposure must merge with the offense of corruption of minors. This conclusion stems from this Court's prior affirmance of appellant's judgment of sentence which he had challenged on the ground that the

[ 333 Pa. Super. Page 271]

    crimes of indecent assault and indecent exposure merged for sentencing purposes. Although the judgment of sentence was affirmed in a per curiam order, the affirmance necessarily implies that the Court determined that the crimes did not merge for sentencing purposes, but were based on two distinct acts. Since these offenses did not themselves merge, we cannot find that both offenses merged with the crime of corruption of minors. Cf. Commonwealth v. Maddox, 307 Pa. Super. 524, 453 A.2d 1010 (1982) (where two burglary offenses did not merge, only one merged with a felony murder charge as the underlying felony). In other words, since only one of the crimes of indecent assault and indecent exposure was necessary to establish the corrupting act upon which to base the corruption of minors count, only one merged with that count.*fn9

It also makes no difference, instantly, which of the offenses is chosen as the one which merges with the corruption of minors charge since both indecent assault and indecent exposure are second degree misdemeanors. Therefore, choosing one as the offense which merges with the corruption of minors charge and the other as a separate offense does not create a problem.*fn10

Next, we must determine for which of the merged crimes appellant should have been sentenced. When crimes merge for sentencing purposes, the one for which a defendant may be sentenced is the one to which the legislature has attached the greatest penalty. Commonwealth v. Boerner, 281 Pa. Super. 505, 422 A.2d 583 (1980). Instantly, both indecent assault and indecent exposure are misdemeanors of the second degree, carrying a maximum sentence of two

[ 333 Pa. Super. Page 272]

    years, while corruption of minors is a misdemeanor of the first degree, carrying a maximum sentence of five years.*fn11 Thus, appellant could properly have been sentenced for either indecent assault or indecent exposure, and for corruption of minors.

However, as noted above, 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. "In this situation, where we cannot determine whether the declared invalidity of a conviction on one count may have affected the lower court's sentencing on the remaining counts, we must remand to give the lower court an opportunity to reconsider sentencing on all counts." Commonwealth v. Miranda, 296 Pa. Super. 441, 462, 442 A.2d 1133, 1144 (1982). On remand, the court may sentence appellant for either indecent assault or indecent exposure, and for corruption of minors. Appellant is, of course, to be given credit for the time already served for all of these crimes.*fn12

Judgment of sentence vacated and case remanded for resentencing in accordance with this opinion.


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