Appeal from the Judgment of Sentence May 6, 2011, Court of Common Pleas, Blair County, Criminal Division at No. CP-07-CR-0001679-2009
The opinion of the court was delivered by: Donohue, J.:
BEFORE: DONOHUE, LAZARUS, JJ. and McEwen, P.J.E.
David A. Helsel ("Helsel") appeals from the judgment of sentence entered on May 6, 2011, by the Court of Common Pleas, Blair County. Upon review, we vacate the judgment of sentence and remand for proceedings consistent with this Opinion.
The testimony presented by the Commonwealth at trial reveals the following facts. On June 19, 2009, Helsel came upon several juveniles in a cemetery in Altoona. Posing as a cemetery employee, he informed them that there had been reports that they were knocking over headstones. The teens denied committing any acts of vandalism. After a brief physical altercation with one of the males, Helsel separated the two females from the group - M.B., age 12, and L.G., age 15 - by telling them they had to come with him to the owner's house. He led them, holding them by the wrists for part of the way. The girls stated they did not run when Helsel released his grip because they were afraid. Upon reaching a wooded area, Helsel drew a knife and informed the girls he wanted to touch them all over their bodies. Fearing he would hurt them, the victims negotiated with Helsel, eventually agreeing that he could rub his penis against each of their backsides, and then they would be free to go. He engaged in this behavior with L.G. and then with M.B. Helsel told M.B. he wanted to have sex with her, and the victims tried to run away. At that, Helsel grabbed M.B. by the hair and pulled her further into the woods. While in the woods, Helsel attempted to take off M.B.'s shorts and to spread her legs, while M.B. fought to stop him.
L.G. ran to a nearby building that happened to be hosting a meeting of the Fraternal Order of Police. She informed police what had happened, and Patrolman Shaun McCready and Patrolman (now Corporal) Michael Sapienza went in search of M.B. and Helsel. Patrolman McCready heard a girl screaming, and upon reaching a cut-in that led into the woods, he saw M.B. sitting with her back facing him and Helsel standing directly in front of her. He drew his weapon and told Helsel to get on the ground, at which Helsel fled. As the police ran after him, M.B. shouted that Helsel raped her. According to Corporal Sapienza, who came to the clearing immediately after Patrolman McCready, M.B. was naked from the waist down.
Multiple officers responded to assist in the search for Helsel. Corporal Sapienza apprehended him near the wood line at 15th Street and Bell Avenue; Helsel was found hiding under a pile of leaves, dirt and branches. A search incident to arrest revealed a knife in Helsel's pocket. At the police station, the police gave Helsel his Miranda warnings, which Helsel waived and provided a statement wherein he reportedly admitted, in a recorded statement, that he attempted to have sex with M.B. in the woods.*fn1 Fingernail scrapings were taken from M.B. that matched Helsel's DNA profile.
Helsel was charged with 37 counts of various crimes. A three-day jury trial ensued, and Helsel testified in his own defense. He denied all of the allegations against him, instead stating that he happened upon the group of teens hanging out in the cemetery and joined them. He indicated that there was discussion about purchasing marijuana by the group, and that he accompanied M.B. and L.G. to make the purchase. He became separated from the girls, and upon hearing police sirens, he walked over to see what was going on, at which point he was arrested. According to Helsel, the police struck him several times and intimidated him, which caused him to provide the aforementioned admission.
On January 20, 2011, the jury convicted Helsel of unlawful restraint, attempted rape by forcible compulsion, attempted rape of a child, three counts of simple assault, two counts of recklessly endangering another person, two counts of terroristic threats, two counts of corruption of minors, and one count each of indecent exposure, possessing an instrument of crime, possession of a weapon, and harassment.*fn2 On February 8, 2011, the Commonwealth provided notice of its intention to seek a mandatory sentence under 42 Pa.C.S.A. § 9718.2(a)(2), which calls for a sentence of life imprisonment for any person convicted of an offense that requires registration as a sexual offender*fn3 who had "previously been convicted of two or more offenses arising from separate criminal transactions" that require the individual to register as a sexual offender. 42 Pa.C.S.A. § 9718.2(a)(2).
This request was based upon Helsel's two prior convictions of rape and his current convictions of attempted rape of a child and attempted rape by forcible compulsion, all of which require Helsel to register as a sexual offender pursuant to Section 9795.1.
The sentencing hearing was held on May 6, 2011. The Commonwealth argued that Helsel's conviction of attempted rape was his third strike as a sexual offender, mandating a sentence of life in prison. Helsel argued that this conviction should be treated as his second strike pursuant to our Supreme Court's holding in Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185 (2005), because he pled guilty to both prior rapes at a single hearing and the sentences for the crimes ran concurrently, and thus he had only one opportunity to reform, not two. The trial court found the language of Section 9718.2(a)(2) to be unambiguous in that it required Helsel's current conviction of attempted rape to be treated as his third strike. It sentenced Helsel as follows:
life imprisonment for attempted rape of a child;
a concurrent term of life imprisonment for rape by forcible compulsion;
a concurrent term of 40 to 80 months in prison for unlawful restraint;
a concurrent term of 30 to 60 months of imprisonment for indecent exposure;
a concurrent term of 12 to 24 months for each count of simple assault;
a concurrent term of 30 to 60 months for each count of recklessly endangering another person;
a concurrent term of 30 to 60 months for each count of corruption of minors;
a concurrent term of one to two months for harassment;
a concurrent term of 30 to 60 months for terroristic threats;
a concurrent term of 30 to 60 months for possession of a weapon;
the sentence for possessing an instrument of crime merged with possession of a weapon for sentencing purposes; and
ordered Helsel to pay costs and restitution.
On July 21, 2011, the trial court issued an order clarifying and amending Helsel's sentence, such that he received two concurrent life sentences and an additional 256 to 512 months of incarceration running concurrently to the life sentences.
On May 16, 2011, Helsel filed a motion for reconsideration/modification of his sentence raising, inter alia, trial court error in sentencing him as a third-strike sexual offender. The trial court granted reconsideration and ordered the parties to file new legal memoranda. On August 26, 2011, the trial court held a hearing on the motion, and on September 6, 2011, it declined to modify the sentence.
Helsel filed a timely notice of appeal, followed by a court-ordered statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). He now raises the following issues for our review:
I. Whether [Helsel] was improperly sentenced as a
Three Strike Offender under 42 Pa.C.S.A. § 9718.2 in light of Commonwealth v. Shiffler, 583 Pa. ...