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decided: September 30, 1986.


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.

Author: Mcdermott

[ 511 Pa. Page 611]


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

[ 511 Pa. Page 612]

    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

[ 511 Pa. Page 613]

    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 the interest to be protected and the age of the victim are elements*fn5 different from those of indecent assault*fn6 and

[ 511 Pa. Page 614]

    indecent exposure,*fn7 which offenses can be perpetrated against anyone, young or old. So too, are there different interests and different elements dividing an indecent touching and an indecent exposure.

The doctrine of merger has been invoked to limit duplicitous sentencing where one crime "necessarily involves" another, Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973); Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), or where a defendant committed what in effect amounts to a single criminal act, Commonwealth v. Crocker, 280 Pa. Super. 470, 421 A.2d 818 (1980). See also, Commonwealth v. Williams, 344 Pa. Super. 108, 496 A.2d 31 (1985), wherein the Superior Court en banc recently scrutinized these and related questions.*fn8

[ 511 Pa. Page 615]

This Court has already determined that a single act which injures multiple victims may form the basis for multiple sentences without violating double jeopardy principles. Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984). Inasmuch as Frisbie involved multiple victims injured by a single act,*fn9 and there was but one victim instantly, Frisbie is not dispositive of the present case. Nevertheless that decision bears on this case since the majority in Frisbie explicitly disapproved the proposition, endorsed in Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), that "[w]here there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth . . ." Id., 468 Pa. at 331, 362 A.2d at 231 (citation omitted). Frisbie, 506 Pa. at 462, 485 A.2d at 1099.

Having rejected the proposition that a single act may never support multiple punishments, the question remains as to whether multiple punishments must merge where there is but a single victim. This question was addressed in the context of the prohibition against double jeopardy in Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982). In that case this Court upheld separate sentences for rape and corruption of a minor where the single act of sexual intercourse formed the basis for both offenses. In an opinion by Mr. Justice Hutchinson, the majority embraced the following rationale:

Clearly, unlike the situation in Walker, the Commonwealth has suffered two injuries from appellant's single act in that appellant not only engaged in forcible intercourse with an individual who was not his spouse, but

[ 511 Pa. Page 616]

    also corrupted the morals of a child under the age of eighteen.

Id., 498 Pa. at 319, 446 A.2d at 251 (footnotes omitted).

While Norris was framed in a double jeopardy context, we find the approach undertaken therein, focusing on whether there has been more than one Commonwealth interest injured, to be of sound application in the merger context as well.*fn10 In the instant case, as in Norris, there were two fundamentally different Commonwealth interests involved when the defendant committed the act comprising indecent exposure in the presence of his minor victim. Not only did the defendant violate the Commonwealth's interest in proscribing exhibitionism and in shielding any victim from such conduct, he also violated the Commonwealth's interest in protecting minors from corrupting influences, the consequences of which may follow them all their days. Alternatively, as regards the indecent assault charge, the defendant violated the victim's right to be free from such offensive touching, while at the same time violating the Commonwealth's interest in protecting minors from any further consequences of that touching. We therefore hold that the offenses charged do not merge and that it was not error for the lower court to sentence the defendant separately on each offense charged.

Accordingly, judgment of sentence is reinstated.


Accordingly, judgment of sentence is reinstated.

LARSEN, Justice, concurring.

I join with the majority but write separately to point out that this Court explicitly overruled Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976) in the case of

[ 511 Pa. Page 617]

Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984) (opinion by Larsen, J.), wherein we held:

[In Walker ], [t]his Court did state . . . that "[w]here there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth, . . ." [468 Pa.] at 331, 362 A.2d at 231, and that "it is beyond the power of a court imposing sentence to impose multiple sentences on a defendant for a single act." Id., 468 Pa. at 330 n. 3, 362 A.2d at 230 n. 3. To the extent that the above-quoted language from Walker conflicts with our holding today, Walker is hereby expressly overruled.

[W]e hold that the imposition of multiple sentences upon a defendant whose single unlawful act injures multiple victims is legislatively authorized and, consequently, does not violate the double jeopardy clause of the Fifth Amendment.

506 Pa. at 465, 467, 485 A.2d at 1099, 1101.

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