Appeal from the Judgment of Sentence March 12, 2008 In the Court of Common Pleas of Allegheny County Criminal at No(s): CP-02-CR-0014431-2005.
The opinion of the court was delivered by: Stevens, J.
BEFORE: STEVENS, MUSMANNO, and CLELAND, JJ.
¶ 1 This is an appeal from the judgment of sentence entered by the Court of Common Peas of Allegheny County on March 12, 2008, following Appellant's conviction by a jury of rape,*fn1 rape of a child,*fn2 statutory sexual assault,*fn3 and corruption of minors.*fn4 Herein, Appellant contends that the crimes of rape and statutory sexual assault should have merged for purposes of sentencing. We affirm the judgment of sentence.
¶ 2 The facts of this case as adduced at trial were summarized by the trial court as follows:
The incident in question occurred on a single occasion [in 2001] when the victim was 11 years old. The victim, who was a friend of the [Appellant's] sons, spent considerable time at the [Appellant's] home. The victim testified that on the single occasion in the summer before she was going to turn 12 years old, she and the [Appellant's] son were watching a movie in the basement of the [Appellant's] residence. She testified that the [Appellant] came to the basement area and told his son to go upstairs in the house to look for something. At that time the victim and [Appellant] were alone in the basement. The victim testified that the [Appellant] told her to pull down her pants. When she said no the [Appellant] threatened that if she did not, he would hurt her. The [Appellant] subsequently had intercourse with the victim. Afterwards, the [Appellant] told the victim if she told anyone that he would hurt her. The victim testified that because of the closeness of the families, she did not disclose what happened to anyone for some time.
Trial Court Opinion filed 7/15/08 at 2-3.
¶ 3 Some time later, Victim told a sister and cousin about the incident. Then, in 2005, Victim told both her mother and a school counselor what had transpired approximately four (4) years earlier. This eventually led to Appellant being charged with rape, rape of a child, statutory sexual assault, and corruption of minors.
¶ 4 A jury trial was held in April of 2007, after which Appellant was found guilty of all charges. On June 28, 2007, Appellant was sentenced to a fifteen (15) to forty (40) year term of imprisonment on the rape of a child conviction; no further penalty was imposed on the remaining counts. Appellant filed a notice of appeal to this Court and a concise statement of matters complained of on appeal. Therein, Appellant raised, inter alia, a contention that the sentence imposed was illegal since the version of 18 Pa.C.S.A. § 3121(b) in effect at the time of the alleged incident called for a ten (10) to twenty (20) year term of imprisonment for the rape conviction.
Concise Statement filed 11/20/07. On January 22, 2008, Appellant filed a Motion to Declare June 28, 2007 Sentencing Order to be Patently Illegal*fn5 and a Motion to Bar Multiple Sentences for Defendant's Two Rape Convictions.
¶ 5 On March 7, 2008, the court granted Appellant's motion deeming the June 28, 2007 sentence to be patently illegal and directed resentencing. On March 12, 2008, Appellant was resentenced to a nine (9) to twenty (20) year term of imprisonment for rape, a consecutive three (3) to ten (10) year term for statutory sexual assault, and a consecutive two (2) to four (4) year term for corruption of minors. Appellant filed a post-sentence motion, which was denied by the court on June 6, 2008. The present appeal followed.
¶ 6 Herein, Appellant raises the following question for review: "Whether the crimes of Rape and Statutory Sexual Assault merge for the purposes of sentencing under the test set forth in Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006), where these crimes arise from the same, isolated factual incident occurring in 2001?" Brief of Appellant at 6.
¶ 7 Initially, we note that a claim that crimes should have merged for purposes of sentencing challenges the legality of a sentence and, thus, cannot be waived. Commonwealth v. Ede, 949 A.2d 926, 932 (Pa.Super. 2008). Therefore, we are not precluded from reviewing Appellant's claim on appeal.*fn6
¶ 8 Appellant argues that, since a single incident of sexual intercourse between Appellant and the victim proved both the charges of rape and statutory sexual assault, the ...