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COMMONWEALTH PENNSYLVANIA v. ALLEN ROSS (04/18/88)

submitted: April 18, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
ALLEN ROSS, APPELLANT



Appeal from the Order April 22, 1987, in the Court of Common Pleas of Cambria County, Criminal, No. 638(B) through (G) of 1986.

COUNSEL

John R. Kalenish, Johnstown, for appellant.

James A. Nelson, Assistant District Attorney, Ebensburg, for Com.

Olszewski, Johnson, and Hester, JJ.

Author: Olszewski

[ 375 Pa. Super. Page 177]

This is an appeal from a judgment of sentence imposed after appellant was convicted by jury of forty-seven counts of sexual crimes against his daughter and three of his girlfriend's children. On appeal, appellant challenges the trial court's decision to: (1) refuse to merge eleven counts of indecent assault with eleven counts of involuntary deviate sexual intercourse; (2) sentence appellant to forty-to-eighty years on the involuntary deviate charges; and (3) allow a whip to be admitted as one of the Commonwealth's exhibits. We affirm.

During 1985 and early 1986, appellant regularly sexually assaulted his seven-year-old daughter, [E.R.], and three of his girlfriend's children. The record reflects that appellant fondled the children, forced all of the victims to perform fellatio, and attempted sexual intercourse*fn1 with the female victims. Appellant was subsequently convicted of eleven

[ 375 Pa. Super. Page 178]

    counts of involuntary deviate sexual intercourse, eleven counts of indecent assault, two counts of incest, and two counts of statutory rape. The trial court sentenced appellant to forty-to-eighty years on eight counts of involuntary deviate sexual intercourse and concurrent sentences on the remaining counts.

Appellant first complains that the eleven counts of indecent assault should have merged with the eleven counts of involuntary deviate sexual intercourse for sentencing purposes. Regarding merger, we have declared:

In order to find that separate statutory offenses merge, we must . . . determine not only that the crimes arose out of the same criminal act, transaction, or episode, but also that the statutes defining the crimes charged were directed to substantially the same harm or evil. If we do not take both of these steps, we fail in our duty to effectuate the legislative mandate in carrying out statutory punishments.

Obviously if a defendant has committed several discrete criminal acts, he may be punished separately for each of them despite their close relationship in a single criminal episode, as long as each act is a separate injury in itself. If there are separate criminal acts, the first condition for application of the merger doctrine does not exist. Once a defendant commits an original crime, he is not permitted to compound the injuries he inflicts and then escape liability for additional crimes under the guise that they all were done in the same criminal transaction . . . . Even if the defendant's criminal conduct consists of a single physical act, however, the merger doctrine does not bar separate punishments if there are substantially different interests of the Commonwealth at stake and the defendant's act has injured each interest.

Commonwealth v. Williams, 344 Pa. Super. 108, 127-28, 496 A.2d 31, 42 (1985) (citations omitted); see also Commonwealth v. Taylor, 362 ...


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