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Commonwealth v. Jackson

Superior Court of Pennsylvania

February 17, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
NORMAN C. JACKSON, Appellant

Submitted June 24, 2014.

Appeal from the Judgment of Sentence April 19, 2013. In the Court of Common Pleas of Philadelphia County. Criminal Division at No(s): CP-51-CR-0008834-2009. Before MAZZOLA, J.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J. OPINION BY PANELLA, J.

OPINION

Page 1188

PANELLA, J.

Appellant, Norman C. Jackson, appeals from the judgment of sentence entered on April 19, 2013, by the Honorable William J. Mazzola, Court of Common Pleas of Philadelphia County, following Jackson's conviction of, among other things, rape by forcible compulsion[1] and statutory sexual assault.[2] On appeal, Jackson argues that the trial court erred when it sentenced him to an additional five years' probation for statutory sexual assault, as the crime should have merged for sentencing purposes with rape by forcible compulsion. Jackson relies upon the plain language of section 3122.1 to support his argument. After review, we decline to adopt Jackson's proposed statutory interpretation and affirm his judgment of sentence.

Following a bench trial on July 18, 2012, Jackson was convicted of rape by forcible compulsion, statutory sexual assault, indecent assault by forcible compulsion,[3] and simple assault. [4] Jackson raped a minor in broad daylight on a street in Philadelphia. On April 19, 2013, the trial court sentenced Jackson to ten to twenty years' imprisonment for rape, to be followed by a consecutive term of five years of probation for statutory sexual assault. On May 17, 2013, Jackson filed a timely appeal with this Court. Both Jackson and the trial court have complied with Pa.R.A.P. 1925.

On appeal, Jackson raises a single issue for our review:

Was not the imposition of a consecutive period of five years['] reporting probation on the charge of statutory sexual assault an illegal sentence because the offenses of rape, 18 Pa.C.S. § 3121 and statutory sexual assault, 18 Pa.C.S. § 3122.1, merge for sentencing purposes by virtue of the express language in the statutory sexual assault statute, specifically " [e]xcept as provided in section 3121 (relating to rape)" ?

Appellant's Brief at 2 (footnote omitted).

Initially, we note that although Jackson did not raise a challenge to the appropriateness of his sentence in the court below, it is well settled that merger is a nonwaivable challenge to the legality of the sentence. See Commonwealth v. Pettersen, 2012 PA Super 146, 49 A.3d 903, 911 (Pa. Super. 2012), appeal denied, 619 Pa. 690, 63 A.3d 776 (Pa. 2013). Accordingly, we may proceed to address the merits of Jackson's claim.

Our examination of this issue is one of statutory interpretation, which is a matter of law. Thus, our standard of review is de novo and our scope of review is plenary. Commo ...


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