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Commonwealth v. Aikens

Supreme Court of Pennsylvania

August 22, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MARKEITH AIKENS, Appellant

          SUBMITTED: April 18, 2017

         Appeal from the Judgment of Superior Court entered on May 20, 2016, at No. 224 EDA 2015, affirming the Judgment of Sentence entered on August 7, 2014 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0003098-2013.

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          BAER, JUSTICE

         This appeal requires the Court to determine the proper grading for sentencing of a defendant's conviction for unlawful contact with a minor, 18 Pa.C.S. § 6318, [1] when the grading is based on the offense for which the defendant contacted the minor, here involuntary deviate sexual intercourse (IDSI), but where the jury ultimately acquitted the defendant of that substantive offense. Here, because the trial court instructed the jury that if it concluded the purpose of contacting the minor was to engage in IDSI, Appellant would be guilty of unlawful contact with a minor, and the jury convicted Appellant of that crime, the court properly graded the crime as a first-degree felony. Accordingly, we affirm the Superior Court's judgment.

         In 2013, the Commonwealth charged Markeith Aikens (Appellant) with unlawful contact with a minor and IDSI, both graded as first-degree felonies, as well as corruption of minors, graded as a third-degree felony.[2] The matter proceeded to a jury trial, at the end of which the trial court instructed the jury, in relevant part, as follows:

The [Appellant] has been charged with unlawful contact with a minor. To find [Appellant] guilty of this offense, you must find that each of the following elements has been proven beyond a reasonable doubt: First, that [Appellant] was intentionally in contact with a minor -- the victim in this case -- second, that that contact was for the purpose of engaging in an unlawful act -- and in this case, that unlawful act is alleged to be [IDSI], the crime that we just discussed …

Notes of Testimony (N.T.), 4/24/2014, at 95. Following trial, the jury convicted Appellant of unlawful contact with a minor and corruption of minors, and it acquitted him of IDSI.

         Prior to sentencing, Appellant presented an oral motion for extraordinary relief pursuant to Pa.R.Crim.P. 704.[3] Among Appellant's claims was a challenge to the grading of his conviction for unlawful contact with a minor as a first-degree felony pursuant to Section 6318. That section provides, in relevant part:

(a) Offense defined.--A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following …:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).
(b) Grading.--A violation of subsection (a) is:
(1) an offense of the same grade and degree as the most serious underlying offense in subsection (a) [herein Chapter 31 offenses] for which ...

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