Cross-Appeals from the Order of the Superior Court of Pennsylvania, dated September 21, 1984 at Number 1542 Philadelphia 1982, reversing and vacating in part and affirming in part the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division at Number 354-78.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ. Larsen, J., joins in the majority opinion and files a separate concurring opinion. Nix, C.j., and Zappala, J., note their dissent.
These are cross-appeals filed by the Commonwealth and by defendant below. The defendant, Michael Sayko, entered the home of the four year old victim in this case, in his
employment as an exterminator of insects and rodents. While in the home he induced the child to sit on his lap, put his hand under her shirt, touched her chest, exposed his genitals and had the child touch him. He ejaculated on her hands. He was charged with indecent assault,*fn1 indecent exposure,*fn2 and corrupting the morals of a minor,*fn3 to all of which he pled guilty.
The trial judge sentenced him separately on each charge. The defendant received consecutive terms of one to two years for indecent exposure, one to two years for indecent assault, and five years probation for corruption of minors. A petition to withdraw the pleas of guilty*fn4 was denied, and the Superior Court affirmed, per curiam. Commonwealth v. Sayko, 274 Pa. Super. 628, 423 A.2d 1303 (1979). Defendant Sayko now complains, as he did before the Superior Court, that separate sentences for each charge were in error.
The Superior Court agreed that at least one of the charges merged with the corruption charge and remanded for re-sentencing. However, that court declined the defendant's contention that the corruption charge should be the one vacated. Commonwealth v. Sayko, 333 Pa. Super. 265, 482 A.2d 559 (1984). From that order both the defendant and the Commonwealth sought allowance of appeal: Sayko because he was unsatisfied that the corruption of minors sentence was not merged into one of the second degree misdemeanor offenses; and the Commonwealth because they were dissatisfied that any of the charges merged with the corruption charge. We granted appeal, and for the reasons that follow, hold that none of the charges merge; that they are separate, distinct criminal acts; and that the
defendant may be sentenced on each separately, concurrently or consecutively.
The issue here is not a question of double jeopardy, nor has the defendant appealed on such ground. If he did, it would, upon our analysis, be unfruitful. Double jeopardy prohibits the imposition of more than one punishment for the same offense, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); the defendant here was sentenced for separate, different criminal acts. Essentially the issue here is under what circumstances acts committed during a criminal transaction merge into a single crime.
The penal laws prohibit different acts for different reasons, and because different prohibited criminal acts are committed against the same person at the same time does not lessen the reason why they are prohibited. The penal sanction is designed to prevent any criminal act; if more than one is committed, and each violates a different protected interest, a separate sanction may follow.
The General Assembly may discern by statute different interests to be protected in the same person during a criminal transaction. There is a difference in fact and in consequence between an indecent touching and an indecent exposure; and a profound difference between both acts and the corruption of a minor. Each contain different elements designed to protect different interests. The corruption of a minor child can only be committed against a minor child, hence ...