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Commonwealth v. Brown

Superior Court of Pennsylvania

March 28, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
SHAWN M. BROWN Appellant

         Appeal from the Judgment of Sentence March 7, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006910-2015

          BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J. [*]

          OPINION

          MOULTON, J.

         Shawn M. Brown appeals from the March 7, 2016 judgment of sentence entered in the Allegheny County Court of Common Pleas following his jury trial convictions for rape of a child, involuntary deviate sexual intercourse ("IDSI") with a child, unlawful contact with minor, indecent assault of person less than 13, and corruption of minors.[1] We conclude that the convictions for rape of a child and IDSI with a child merge for sentencing purposes. Because the trial court imposed separate sentences for both convictions, we vacate the judgment of sentence and remand for resentencing.

         On May 18, 2015, the Commonwealth filed an information charging that Brown committed the above-referenced offenses on March 1, 2011. The victim was Brown's male cousin, who was 11 years old at the time of the offense. The parties agree that, although at trial the victim testified that Brown had the victim perform oral sex on more than one occasion, the Commonwealth charged only one underlying act of oral sex for both the rape of a child and the IDSI with a child counts. Brown's Br. at 16; Cmwlth's Br. at 9; see Criminal Information, 6/31/15.

         On December 11, 2015, a jury found Brown guilty of all charges, including rape of a child and IDSI with a child. On March 7, 2015, the trial court sentenced Brown to 120 to 240 months' imprisonment plus 5 years' probation for the rape of a child conviction; 60 to 120 months' imprisonment plus 5 years' probation for the IDSI with a child conviction; and 5 years' probation for the indecent assault conviction.[2] The trial court imposed no further penalty for the convictions for unlawful contact with a minor and corruption of a minor.

         Brown filed a timely notice of appeal and raises one issue on appeal: "Is the sentence imposed upon Mr. Shawn Brown illegal, and must it be vacated, in that it violates the Double Jeopardy clause of the United States Constitution when a court imposes two sentences for one criminal act?" Brown's Br. at 6. Brown, the Commonwealth, and the trial court agree that the trial court erred in imposing a sentence for both the rape of a child and IDSI with a child convictions.

         "A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence, " for which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Nero, 58 A.3d 802, 806 (Pa.Super. 2012) (quoting Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.Super. 2012)).

The statute governing the merger of sentences provides:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. The statute "prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other." Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).[3]

         The Commonwealth concedes that the crimes arose from one criminal act of oral sex on March 1, 2011, Cmwlth.'s Br. at 11, and the information charged Brown with rape of child and IDSI with child based on one act of oral sex. Therefore, pursuant to section 9765, we must determine whether "all of the statutory elements of one offense are included in the statutory elements of the other offense." 42 Pa.C.S. § 9765.

         Before the passage of section 9765, this Court held that, where a defendant is convicted of rape and IDSI, "imposing two sentences for one act of penile penetration is illegal under the double jeopardy clause of the United States Constitution." Commonwealth v. Lee, 638 A.2d 1006, 1010 (Pa.Super. 1994). The Court in Lee analyzed the rape and IDSI statutes, including the definitions of "sexual intercourse" and "deviate sexual intercourse, " and found they were identical where the underlying act was oral or anal sex. The Court stated:

Reading the definitions of "sexual intercourse" and "deviate sexual intercourse" together, it is abundantly clear that, as between non-married persons, [4] any act of forcible oral or anal sex is proscribed by both the rape and IDSI statutes. In fact, there are only two differences between rape and IDSI: (1) rape proscribes non-consensual sexual intercourse in "its ordinary meaning" (vaginal intercourse) or "traditional rape, " and (2) IDSI proscribes deviate sexual ...

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