Com. v. Keller, T. ( 2018 )

J-S01014-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TODD MICHAEL KELLER, :
:
Appellant : No. 869 MDA 2017
Appeal from the Judgment of Sentence April 27, 2017
in the Court of Common Pleas of Cumberland County,
Criminal Division at No(s): CP-21-CR-0002440-2015,
CP-21-CR-0002444-2015, CP-21-CR-0002648-2015
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 21, 2018
Todd Michael Keller (“Keller”) appeals from the judgment of sentence
imposed after a jury convicted him of two counts each of aggravated
indecent assault, indecent assault, and harassment; and one count each of
sexual assault, unlawful contact with a minor, corruption of minors, burglary,
criminal mischief, fleeing or attempting to elude a police officer, criminal
trespass, intimidation of witnesses or victims, prohibited offensive weapons,
terroristic threats, driving under the influence (“DUI”) – general impairment,
and DUI – highest rate of alcohol.1 We affirm Keller’s judgment of sentence.
However, we vacate the trial court’s Order designating Keller as a sexually
____________________________________________
1 See 18 Pa.C.S.A. §§ 3125(a)(1), 3125(a)(8), 3126(a)(1), 3126(a)(8),
2709(a)(6), 2709(a)(7), 3124.1, 6318(a)(1), 6301(a)(1)(ii), 3502(a)(2),
3304(a)(5), 3733(a), 3503(a)(1)(i), 4952(a)(1), 908(a), 2706(a)(1); 75
P.S. §§ 3802(a)(1), 3802(b).
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violent predator (“SVP”) under Pennsylvania’s Sex Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10 et seq., and remand for
further proceedings.
The trial court thoroughly set forth the relevant factual history in its
Opinion, which we adopt for purposes of this appeal. See Trial Court
Opinion, 6/14/17, at 2-8. Briefly, Keller’s convictions arose from his
repeated sexual abuse of his minor stepdaughter, and his subsequent
destruction of the home in which she was residing with a machete in
retaliation for her reporting the abuse to authorities.
Following the imposition of his sentence, Keller filed a Motion for
modification, challenging the discretionary aspects of his sentence. The trial
court denied this Motion. Keller then filed a timely Notice of Appeal. In
response, the trial court ordered him to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Keller timely filed a Concise
Statement, after which the trial court issued an Opinion.
Keller now presents the following issues for our review:
I. Whether the trial court erred in denying [Keller’s] Motion to
suppress [his] statements made to police during the post-
polygraph interview and all evidence which flowed from the
same?
II. Whether the trial court erred in denying [Keller’s] Motion to
sever?
III. Whether the evidence was insufficient to sustain the verdicts
of guilt?
IV. Whether the trial court erred and abused its discretion in
imposing consecutive sentences[,] and sentences at the
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very top of the standard range[,] resulting in an excessive
and unreasonable aggregate sentence[,] without taking into
consideration substantial mitigating circumstances?
V. Whether the trial court erred in failing to merge certain
convictions for sentencing purposes: indecent assault, [18
Pa.C.S.A.] § 3126(a)(1)[,] with aggravated indecent
assault, [18 Pa.C.S.A.] § 3125(a)(1); indecent assault, [18
Pa.C.S.A.] § 3126(a)(8)[,] with aggravated indecent
assault, [18 Pa.C.S.A.] § 3125(a)(8); corruption of minors
with aggravated indecent assault; and sexual assault with
aggravated indecent assault?
VI. Whether the trial court erred and abused its discretion when
it classified [Keller] as a [SVP]?
Brief for Appellant at 11-12 (capitalization omitted, issues renumbered).
We will address Keller’s first two issues together. Keller argues that
the trial court erred and abused its discretion in denying his (1) Motion to
suppress his inculpatory statements to the police; and (2) Motion to sever
his three separate cases.2 See id. at 20-34.
[O]ur standard of review in addressing a challenge to a
trial court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. We are bound by the suppression court’s factual
findings so long as they are supported by the record; our
standard of review on questions of law is de novo. Where, as
here, the defendant is appealing the ruling of the suppression
court, we may consider only the evidence of the Commonwealth
and so much of the evidence for the defense as remains
uncontradicted. Our scope of review of suppression rulings
____________________________________________
2 Keller filed both of these Motions on the first day his jury trial was
scheduled to begin. We note that Pennsylvania Rule of Criminal Procedure
579 provides, in relevant part, that generally, “the omnibus pretrial motion
for relief shall be filed and served within 30 days after arraignment, unless
opportunity therefor did not exist ….” Pa.R.Crim.P. 579(A).
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includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted).
Concerning Keller’s execution of a written waiver of his Miranda3
rights during his police interview, we are mindful of the following:
A defendant may waive his Miranda rights, and agree to answer
questions or make a statement. For a waiver to be valid, it must
be knowing, voluntary, and intelligent. In other words,
the waiver must be the product of a free and deliberate choice
rather than intimidation, coercion, or deception, and must have
been made with a full awareness both of the nature of the right
being abandoned and the consequences of the decision to
abandon it. …
The test for determining the voluntariness of a confession and
the validity of a waiver looks to the totality of the circumstances
surrounding the giving of the confession. Some of the factors to
be considered include: the duration and means of interrogation;
the defendant’s physical and psychological state; the conditions
attendant to the detention; the attitude exhibited by the police
during the interrogation; and any other factors which may serve
to drain one’s powers of resistance to suggestion and coercion.
Commonwealth v. DeJesus, 787 A.2d 394, 402-03 (Pa. 2001) (citations
and quotation marks omitted).
Concerning challenges to a trial court’s denial of a motion to sever,
this Court has stated as follows:
____________________________________________
3 See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (holding that the
prosecution may not use a defendant’s statements stemming from a
custodial interrogation unless it demonstrates that he was apprised of his
right against self-incrimination and his right to counsel).
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A motion for severance is addressed to the sound discretion of
the trial court, and its decision will not be disturbed absent a
manifest abuse of discretion. The critical consideration is
whether the appellant was prejudiced by the trial court’s decision
not to sever. The appellant bears the burden of establishing
such prejudice.
Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010) (citation,
ellipses and brackets omitted).
Two Pennsylvania Rules of Criminal Procedure govern severance. Rule
582 provides, in relevant part, as follows:
(A) Standards
(1) Offenses charged in separate indictments or informations
may be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is capable
of separation by the jury so that there is no danger of
confusion; or
(b) the offenses charged are based on the same act or
transaction.
Pa.R.Crim.P. 582(A)(1). Relatedly, Rule 583 provides as follows: “The court
may order separate trials of offenses or defendants, or provide other
appropriate relief, if it appears that any party may be prejudiced by offenses
or defendants being tried together.” Pa.R.Crim.P. 583; see also Dozzo,
991 A.2d at 902 (stating that “[u]nder Rule 583, the prejudice the defendant
suffers due to the joinder must be greater than the general prejudice any
defendant suffers when the Commonwealth’s evidence links him to a
crime.”).
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Concerning the trial court’s denial of his Motion to suppress, Keller
asserts as follows:
Viewing the totality of the circumstances, [Keller’s] waiver [of
his Miranda rights,] made after the lengthy initial [police]
interview at the time of the pre-polygraph interview by a []
Trooper[,] was not knowing, voluntary, and intelligent. All three
Troopers [who interacted with Keller] used coercive tactics,
being aware of and taking advantage of [Keller’s] emotional
weakness, strong desire to do anything to have his three young
children returned to him, and his poor state of mind, being under
the influence of alcohol and mental health medications, his
extreme lack of sleep, and recent hospitalization for attempted
suicide. [Keller] was also fatigued, medicated, influenced by his
excessive drinking the night prior, and under the stress of not
having any contact with his three young children[, such] that his
confession was not voluntary and his waiver of Miranda rights
was not knowing or intelligent. … [Keller’s] statements [that]
followed his unknowing, unintelligent, and involuntary waiver
should be suppressed. Because the initial Miranda waiver was
not valid, the statements made during the post-polygraph
interview[,] and any evidence which flowed from the same[,]
should have been suppressed.
Brief for Appellant at 24-25 (paragraph break omitted). Keller argues in the
alternative that “[r]eviewing the totality of the circumstances, even [] if the
Miranda waiver was valid, such waiver did not encompass the post-
polygraph [police] interview.” Id. at 27.
Concerning the trial court’s denial of his Motion to sever, Keller
contests the trial court’s finding that the separate criminal acts charged in
the respective criminal Informations were separated by only a few days.
See id. at 31 (stating that Keller “was accused of sexually assaulting [the
victim] from August 1, 2014[,] to May 9, 2015[,] in Cumberland County, and
then was accused months later in another county” of the crimes related to
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Keller’s destruction of the victim’s home and DUI). Additionally, Keller
complains that “[t]he trial court never analyzed whether [he] would be
prejudiced by his sexual assault, burglary and DUI, and harassment cases all
being tried jointly before the same jury.” Id. at 32; see also id. at 33
(asserting that “[t]he jury was incapable of separating evidence of the
various individual offenses.”).
In its Opinion, the trial court addressed Keller’s challenges to the
denial of his Motions to suppress and sever, and explained its reasons for
determining that neither challenge entitled Keller to relief. See Trial Court
Opinion, 6/14/17, at 8-12. We agree with the trial court’s analysis and
determination, and discern no abuse of its discretion. Accordingly, we affirm
on this basis in rejecting Keller’s first two issues. See id.
In his third issue, Keller contends that the Commonwealth failed to
present sufficient evidence for the jury to properly find that he had
committed all of the charged crimes4 beyond a reasonable doubt. See Brief
____________________________________________
4In lieu of stating herein the statutory definitions of the myriad offenses of
which Keller was convicted, we point to the statutes in question. See 18
Pa.C.S.A. §§ 3125(a)(1), 3125(a)(8), 3126(a)(1), 3126(a)(8), 2709(a)(6),
2709(a)(7), 3124.1, 6318(a)(1), 6301(a)(1)(ii), 3502(a)(2), 3304(a)(5),
3733(a), 3503(a)(1)(i), 4952(a)(1), 908(a), 2706(a)(1); 75 P.S.
§§ 3802(a)(1), 3802(b).
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for Appellant at 34-51.5 Concerning his convictions related to his sexual
assaults of the victim (hereinafter “the sexual assault offenses”), Keller
argues that “the Commonwealth failed to establish beyond a reasonable
doubt that any of the crimes charged occurred between August 1, 2014[,]
and May 19, 2015, the dates alleged in the information.” Id. at 38; see
also id. at 37-38 (wherein Keller urges that the victim’s testimony as to the
precise period of time during which Keller was assaulting her was “vague
and uncertain”). Keller further argues that the victim’s testimony as to the
number and nature of the sexual acts that had occurred was “disturbingly
vague.” Id. 38-39. Additionally, Keller contends that the Commonwealth
presented very little testimony as to whether the sexual contact was
consensual. Id. at 46. Finally, concerning his convictions arising out of his
destruction of the victim’s residence with a machete, and subsequent fleeing
the scene in his car, Keller asserts that
(1) he did not flee police apprehension in his car where he
“traveled approximately one mile at a normal rate of speed,
this was not a high speed chase, … and [Keller] complied
with the officer’s request to turn off the car[,]” id. at 47;
____________________________________________
5 In his Argument section concerning this issue, Keller does not challenge
the sufficiency of the evidence supporting his convictions of harassment,
burglary, criminal trespass, intimidation of witnesses or victims, terroristic
threats, or DUI. See Brief for Appellant at 46. Accordingly, he has waived
any challenge to those convictions. See, e.g., Commonwealth v.
Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (stating that, where the
appellant “fails to expand upon [a] claim in the argument section of his brief
… the claim is waived.”).
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(2) “[t]he Commonwealth failed to establish that the damage to
the [victim’s grandparent’s] home exceeded $5[,]000.00, as
required for a conviction of criminal mischief graded as a
felony of the third degree[,]” id. at 49;
(3) the machete that Keller used to destroy the home, which he
lawfully purchased, does not fall under the statutory
definition of a prohibited “offensive weapon[,]” id. at 49-50.
The trial court concisely addressed Keller’s sufficiency challenge in its
Opinion, set forth our standard of review, and determined that there was
ample evidence for the jury to convict Keller of the sexual assault offenses.
See Trial Court Opinion, 6/14/17, at 12-13. We agree with the trial court’s
analysis and determination, which is supported by the record and the law,
and therefore affirm on this basis in rejecting Keller’s sufficiency challenge to
the sexual assault offenses. See id.; see also Commonwealth v.
Charlton, 902 A.2d 554, 562 (Pa. Super. 2006) (noting that, in a
prosecution for, inter alia, incest and corruption of minors, this Court has
long held that a victim’s uncorroborated testimony is sufficient to convict).
There was also ample evidence presented for the jury to convict Keller
of fleeing or attempting to elude a police officer, where the arresting officer
testified that Keller continued to drive for “at least a mile” after the officer
activated his lights and siren, failed to slow down, and did not stop until the
officer blocked Keller’s vehicle at a traffic light. See N.T., 7/12/16, at 222-
23.
The evidence is also sufficient to sustain Keller’s conviction of criminal
mischief where the victim’s grandfather, who owned the home that Keller
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had destroyed, reported that Keller caused nearly $10,000 in property
damage, which is double the threshold amount for a conviction of felony
criminal mischief.
Finally, the evidence is sufficient to sustain Keller’s conviction of
prohibited offensive weapons.6 A machete, which is a large blade typically
reserved for clearing dense tropical vegetation, “serves no common lawful
purpose,” and its capacity to inflict serious bodily injury is beyond dispute.
18 Pa.C.S.A. § 908(c) (emphasis added); see also Commonwealth v.
Walton, 380 A.2d 1278, 1279-80 (Pa. Super. 1977) (en banc) (rejecting
defendant’s sufficiency challenge concerning his conviction of prohibited
offensive weapons where he possessed a “sword cane,” which served no
common lawful purpose and was therefore a prohibited offensive weapon
under section 908(c)).
In his fourth issue, Keller argues that the sentencing court abused its
discretion by
impos[ing] consecutive sentences[,] all at the very top of the
standard [guideline] range[,] resulting in a manifestly excessive
aggregate sentence[,] while failing to consider:
(a) the rehabilitative needs of [Keller] as required by [section]
9721(b) of the Sentencing Code;
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6 The Crimes Code definition of an “offensive weapon” does not specifically
include a machete. See 18 Pa.C.S.A. § 908(c). However, the statute
provides the following “catchall” definition of a prohibited offensive weapon:
any “other implement for the infliction of serious bodily injury which serves
no common lawful purpose.” Id.
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(b) mitigating circumstances such as: [Keller’s] age, his lack
of any prior criminal record, [] his personal characteristics
and his life situation, as well as his remorse and potential
for rehabilitation.
(c) the sentencing court in the instant action failed to state
any reasons on the record related to the mitigating factors
presented to the court.
Brief for Appellant at 18-19.
Keller challenges the discretionary aspects of his sentence, from which
there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d
359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has
preserved the sentencing challenge for appellate review by raising it at
sentencing or in a timely post-sentence motion, the appellant must (1)
include in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence,
pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial
question that the sentence imposed is not appropriate under the Sentencing
Code. Hill, 66 A.3d at 363-64.
Here, Keller included a Rule 2119(f) Statement in his brief. See Brief
for Appellant at 17-19. Moreover, his above-mentioned claims present a
substantial question for our review. See Commonwealth v. Caldwell, 117
A.3d 763, 770 (Pa. Super. 2015) (en banc) (stating that “an excessive
sentence claim—in conjunction with an assertion that the [trial] court failed
to consider mitigating factors—raises a substantial question.”) (citation
omitted); see also Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa.
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Super. 2016) (holding that a claim that appellant’s standard range
consecutive sentence was excessive, and the trial court failed to consider
appellant’s rehabilitative needs, raised a substantial question). Accordingly,
we will address the merits of Keller’s claims.
In its Opinion, the trial court addressed Keller’s challenge to his
sentence, summarized our standard of review and the applicable law, and
opined that the court properly exercised its discretion in imposing a sentence
commensurate with the seriousness of Keller’s numerous crimes. See Trial
Court Opinion, 6/14/17, at 15-16. We fully agree with the trial court’s
cogent reasoning and discern no abuse of its discretion in imposing a
reasonable and just aggregate sentence befitting the seriousness of Keller’s
crimes. Accordingly, we affirm on this basis as to this issue. See id.In his fifth issue, Keller avers that the trial court erred in failing to
merge for sentencing purposes certain of his convictions. See Brief for
Appellant at 64-66. According to Keller, the following convictions should
have merged:
(a) indecent assault, 18 Pa.C.S.A. § 3126(a)(1), with aggravated
indecent assault, id. § 3125(a)(1);
(b) indecent assault, id. § 3126(a)(8), with aggravated indecent
assault, id. § 3125(a)(8);
(c) corruption of minors, id. § 6301(a)(1)(ii), with aggravated
indecent assault, id. § 3125(a)(1); and
(d) sexual assault, id. § 3124.1, with aggravated indecent
assault, id. § 3125(a)(1).
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Brief for Appellant at 65. Keller argues that “[w]here the above crimes
‘ar[o]se from a single criminal act and all of the statutory elements of one
offense are included in the statutory elements of the other offense[,]” the
trial court erred in not merging them for sentencing purposes.” Id. at 66
(quoting 42 Pa.C.S.A. § 9765 (governing merger of sentences)).
The trial court concisely discussed this claim in its Opinion, set forth
the applicable law, and determined that it properly did not merge the
sentences on the convictions at issue. See Trial Court Opinion, 6/14/17, at
16-17. As the trial court’s reasoning is supported by the law, and we agree
with its determination and discern no sentencing error, we affirm on this
basis as to this issue. See id.
In his sixth and final issue, Keller argues that the trial court unlawfully
determined that he met the requirements for classification as a SVP, pointing
to this Court’s recent decision in Commonwealth v. Butler, 173 A.3d 1212(Pa. Super. 2017). See Brief for Appellant at 51-52. We agree.
Applying Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
States, 570 U.S. 99 (2013), the Butler Court ruled that 42 Pa.C.S.A.
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§ 9799.24(e)(3) of SORNA is unconstitutional.7 Butler, 173 A.3d at 1217-
18. Specifically, the Court stated as follows:
[S]ince our Supreme Court has held that SORNA registration
requirements are punitive or a criminal penalty to which
individuals are exposed, then … a factual finding, such as
whether a defendant has a “mental abnormality or personality
disorder that makes [him or her] likely to engage in predatory
sexually violent offenses[,]” 42 Pa.C.S.A. § 9799.12, that
increases the length of registration[,] must be found beyond a
reasonable doubt by the chosen fact-finder. Section
9799.24(e)(3) identifies the trial court as the finder of fact in all
instances and specifies clear and convincing evidence as the
burden of proof required to designate a convicted defendant as
a[] SVP. Such a statutory scheme in the criminal context cannot
withstand constitutional scrutiny.
Butler, 173 A.3d at 1217-18. Accordingly, the Butler Court ruled that “trial
courts cannot designate convicted defendants SVPs (nor may they hold SVP
hearings) until our General Assembly enacts a constitutional designation
mechanism.” Id. at 1218.
In the instant case, Keller was determined to be a SVP under the now-
unconstitutional SVP mechanism. Thus, pursuant to Butler, we must vacate
the trial court’s sentencing Order finding that Keller is a SVP, as such a
determination is no longer legal. See id. Therefore, we vacate that portion
of the sentencing Order, and remand Keller’s case for the sole purpose of
____________________________________________
7 Subsection 9799.24(e)(3) provides that at the conclusion of a SVP hearing,
“the court shall determine whether the Commonwealth has proved by clear
and convincing evidence that the individual is a [SVP].” 42 Pa.C.S.A.
§ 9799.24(e)(3) (emphasis added).
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having the trial court issue Keller appropriate notice of his registration
obligations under 42 Pa.C.S.A. § 9799.23. See Butler, 173 A.3d at 1218.
Portion of sentencing Order deeming Keller a SVP vacated. Judgment
of sentence affirmed in all other respects. Case remanded with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/21/2018
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Circulated 02/23/2018 11:53 AM
COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF
PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA
: CP -21 -CR-0002444-2015
: CHARGE: SEXUAL ASSAULT
(1)
: (3) AGGRAVATED INDECENT ASSAULT
: (4) AGGRAVAI'ED INDECENT ASSAULT
: (5) UNLAWFUL CONTACT WITH MINOR
: (6) CORRUPTION OF MINORS
: (7) INDECENT ASSAULT
: (8) INDECENT ASSAULT
: AFFIANT: TPR. KRISTA MILLER
: OTN: T693010-3
: CP-21 -CR-0002648-2015
: CHARGE: (1) BURGLARY -ADAPTED FOR
: OVERNIGHT ACCOMMODATION -NO
PERSON PRESENT (2) CRIMINAL MISCHIEF
: (3) FLEEING OR ATTEMPTING TO ELUDE
: POLICE OFFICER (4) CRIMINAL TRESPASS
: (5) INTIMIDATION OF WITNESSES OR
: VICTIMS (6) PROHIBITED OFFENSIVE
: WEAPONS (7) TERRORISTIC THREATS
(8) DUI -GENERAL IMPAIRMENT
DUI -HIGH RATE
(9)
: AFFIANT: PTL. WILLIAM CERVOLA
: OTN: L963664-2
TODD M. KELLER CP-21 -CR-0002440-2015
: CHARGE: (1) HARASSMENT
: (2) HARASSMENT
: AFFLANT: TPR. KRISTA MILLER
: OTN: T700409.3
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
BREWBAKER, J., 2017
Appellant Todd M. Keller raises several issues in his appeal. For the reasons that follow,
the Court respectfully suggests that it committed no error and did not abuse its discretion and
therefore its decisions should be affirmed.
Statement of Facts
On June 29, 2015, Trooper Krista Miller received a phone call from Cumberland County
Children and Youth Services, advising that a referral had been made from the victim's
therapist/counselor. The victim, L.K., had disclosed that her step-father, the appellant, had been
sexually assaulting her since she was in sixth grade until she was removed from the home in May
2015. L.K. was thirteen years old when the assaults began and fourteen when she was removed.
The victim was subsequently interviewed at the Children's Resource Center, where she disclosed
that Appellant had been physically and sexually abusing her. L.K. related that Appellant had
touched her vagina multiple times per week, and had forced her to touch his penis and perform
oral sex on his penis. In addition, Appellant had forced the victim to have vaginal sexual
intercourse with him more than five but less than ten times, and also had penetrated her buttocks
with his penis between five and ten times. L.K. related that the most recent incident had
occurred several days prior to her removal from the home in May 2015.
A search warrant was executed on Appellant's residence. Appellant was asked if any
semen would be located in the basement of the residence. Appellant stated that there would be in
the back bay. A few items were seized from the residence, though no testing of the objects was
performed.
On August 19, 2015 at approximately 7:21 am., Trooper Miller of the Pennsylvania State
Police requested Appellant come in to the station so that she could inform him of the allegations
against him, and he could be interviewed. Appellant told Trooper Miller that he was leaving
town, but he would let her know. 'However, he arrived at the station that same morning around
9:00 a.m., without a scheduled appointment, and talked to Trooper Miller and Trooper Michael
2
Bence in their interview room. Appellant was told at that time that he was free to leave and that
he was not under arrest.
At some point during his statement, Trooper Miller requested that Appellant take a
polygraph examination. He initially refused, stating that he would fail it. After she told him it
would be one of the easiest ways to wrap up the investigation and that it would be the fastest way
to get his kids back, he eventually consented. Because neither Trooper Miller nor Trooper Bence
were qualified as polygraph examiners, they had to await the arrival of Trooper Jeremy Matas.
While they were waiting, Trooper Miller escorted Appellant to the front of the building, and told
him he could wait in the lobby, the parking lot, or wherever else he felt comfortable. Appellant
asked if he could go outside for a cigarette and then asked Trooper Miller to wait with him while
he smoked. While outside. Appellant asked Trooper Miller jibe could "just plead guilty," but
Trooper Miller advised him that is not how these things work. Trooper Matas then arrived at the
station. While Trooper Matas went to set up for the polygraph; Trooper Miller went inside the
station and left Appellant outside by himself.
Beginning around 11:05 a.m. on August 19, 2015, Trooper Matas conducted a polygraph
examination of Appellant. Prior to beginning the examination, Trooper Matas had Appellant
sign a polygraph waiver form that included a section regarding Appellant's Miranda rights, but
also told him that he was free to leave. Appellant signed the form, which also discussed the three
parts to the test: the pre-test, the in-phase testing, and the post-polygraph interview. Trooper
Matas then conducted the pre-test, where he talked to Appellant at length. After the pre-test,
Trooper Matas gave Appellant a break, after which he conducted the polygraph examination,
followed by another break. Appellant was never handcuffed and never said he wanted to leave.
3
Around 11:17 a.m. while being interviewed on August 19, 2015, Appellant yawned and
said he was very tired. He told Trooper Matas he had only slept for forty-five minutes the night
before, and that he had consumed seven beers that previous night. He also told. Trooper Matas
that he was on Ativan and another medication for depression and anxiety. The polygraph
examination ended around 1:23 p.m., and the post-polygraph interview began around 1:39 p.m.
Appellant's polygraph examination revealed deception regarding his denial of sexual
contact with the minor victim. After the polygraph, Trooper Matas talked with Appellant about
the deception, and discussed why the machine might show signs of deception. At this point,
Appellant's story began to change. At one point, he asked Trooper Miller, who had rejoined
Trooper Matas for the post -polygraph interview, if he could go home and call her later. Trooper
Miller told him that now was the time and, if he cooperated, she would not arrest him. Appellant
made further incriminating statements, and then left the station.
On August 21, 2015, Appellant left a threatening voicernail at the victim's grandparents'
house, where the victim was residing, telling her that he was coming and she had better run. L.K.
then fled to the home of a neighbor who called 911. Appellant then went to the grandparents'
home in East Berlin. Pennsylvania and using a machete, broke into the home and caused
extensive damage. Appellant went to the victim's bedroom first, and then to the grandparents'
bedroom. Appellant fled the scene, but was spotted by Patrolman William Cervola who was
responding to the call by the victim's neighbor. Patrolman Cervola activated his emergency
lights, but Appellant did not immediately pull over. Eventually, Appellant was forced to stop
when another car stopped at a red light and Patrolman Cervola positioned his vehicle to prevent
Appellant from driving away. Patrolman Cervola approached Appellant, and immediately
noticed the very strong smell of alcohol emanating from Appellant's vehicle, along with
4
Appellant's bloody hands. Appellant admitted to breaking into his in-laws' home, and
Patrolman Cervola placed Appellant under arrest for driving under the influence of alcohol. On
August 24, 2015, a warrant was issued for Appellant's arrest on charges relating to Docket
#2444-2015.
On July 1 1, 2016, the morning that his jury trial was scheduled to begin, Appellant filed
an Omnibus Pretrial Motion seeking to suppress the inculpatory statements and polygraph
examination results, as well as a motion to sever the three dockets joined for trial. After a
hearing, the Court denied both of Appellant's motions. Following a week-long trial, on July 15,
2016 the jury returned a verdict of giiilty on all counts.' The Court ordered Appellant to undergo
an assessment by the Pennsylvania Sexual Offender Assessment Board, and to appear for
sentencing on November 1, 2016. After the Sexual Offender Assessment Board conducted its
evaluation, Appellant requested a continuance and to have his own expert appointed, with the
Court granting both requests. Ultimately, the Sexually Violent Predator determination hearing
occurred on April 27, 2017.
At the hearing, the Commonwealth called Dr. Robert M. Stein, a member of the
Pennsylvania Sexual Offenders Assessment Board to testify as an expert on sexual offender
assessments. Dr. Stein had previously reviewed the police report, criminal complaint, and other
records, and had conducted an interview with Appellant. During his testimony, Dr. Stein
reviewed the fifteen statutory factors in determining whether Appellant is a sexually violent
predator and testified to a reasonable degree of professional certainty that Appellant is, a sexually
violent predator. Dr. Stein concluded that Appellant suffers from "other specified paraphilic
Due to an error in the criminal information, the charge of Statutory Sexual Assault at Count 2 of Docket Pt2444-
2015 was incorrectly filed, and was withdrawn by the Commonwealth, without objection by the defense, prior to the
jury reaching a verdict on that charge.
5
disorder of non -consent." He further testified that only twenty percent of his assessments
resulted in a determination that a person met the criteria for a sexually violent predator.
Appellant called Dr. Thomas F. Haworth as an expert. Dr. Haworth has a private
practice, but used to be a member of the Sexual Offenders Assessment Board. Dr. Haworth
reviewed the same information as Dr. Stein but concluded that Appellant is not a sexually violent
predator. Dr. Haworth concluded that Appellant suffers from bipolar disorder, and questioned
Dr. Stein's diagnosis of other specific paraphilic disorder non -consent. At the conclusion of the
hearing,- the Court determined that the Commonwealth had satisfied its burden of proving by
clear and convincing evidence that Appellant is a sexually violent predator.
Subsequently, Appellant was sentenced by the Court as follows. At Docket NCR -2444-
2015, on all counts, Appellant was sentenced to pay the costs of prosecution, a fine, and to make
restitution as appropriate. In regards to periods of incarceration, at Count 1, Sexual Assault,
Appellant was sentenced to imprisonment for not less than four but no more than ten years, with
credit for time already served since August 8, 2015.2 At Count 3, Aggravated Indecent Assault,
Appellant was sentenced to undergo incarceration for not less than three nor more than six years,
consecutive to Count 1. At Count 4, Aggravated Indecent Assault, the sentence was to undergo
imprisonment for not less than three nor more than six years, consecutive to Count 3. At Count
5, Unlawful Contact With a Minor, the sentence of the Court was that Appellant undergo
imprisonment for not less than three nor more than six years, consecutive to Count 4. At Count
6, Corruption of Minors, the Appellant was sentenced to incarceration for not less than one nor
more than two years, consecutive to Count 5. At Count 7, Indecent Assault, Appellant was
sentenced to imprisonment for not less than three nor more than six months, concurrent with
2Although the credit date of August 8, 2015 was reflected in the presentence report and not disputed by either
counsel, it is likely incorrect as Appellant was not in custody until he was arrested for on August 21, 2016.
6
Count 6. And at Count 8, Indecent Assault, Appellant was sentenced to undergo imprisonment
for not less than three nor more than six months, concurrent with Counts 6 and 7.
At Docket #CR-2648-2015, Appellant was again sentenced at all counts to pay the costs
of prosecution, a fine, and appropriate restitution; furthermore, Appellant was sentenced at Count
1, Burglary, to serve a period of incarceration of not less than one nor more than two years,
consecutive to the sentences at Docket #CR-2444-2015. At Count 2, Criminal Mischief,
Appellant was sentenced to undergo imprisonment for not less than three nor more than six
months, consecutive to Count 1. At Count 3, Fleeing or Attempting to Elude a Police Officer,
Appellant was ordered to undergo imprisonment for not less than one nor more than two years,
consecutive to Count 3. Count 4, Criminal Trespass, merged with Count 1, Burglary. At Count
5, Intimidation of a Witness or Victim, Appellant was sentenced to imprisonment for not less
than one nor more than two years, consecutive to Count 3. At Count 6, Prohibitive Offensive
Weapons, Appellant was ordered to undergo imprisonment for not less than three nor more than
six months, consecutive to Count 5. At Count 7, Terroristic Threats, Appellant was sentenced to
not less than one nor more than twelve months, consecutive to Count 6. And at Count 8, Driving
Under the Influence -General impairment, Appellant was ordered to undergo a period of
supervised probation for six months, concurrent to Count 7.3
At Docket #CR-2440-2015, Count 1, Harassment, Appellant was ordered to pay the costs
of prosecution, a fine of $50, and undergo a period of supervised probation for one year,
concurrent with the sentences imposed at Docket #CR-2648-2015. At Count 2, Harassment,
Appellant was ordered to pay the costs of prosecution, a fine of $50, and undergo a period of
supervised probation for one year, concurrent with Count 1.
3 To avoid any post-conviction issues on the alcohol test, the Commonwealth agreed at the time of sentencing that
the Court should sentence at Count 8, and Merge Count 9, Driving Under the Influence -High Rate of Alcohol, with
the lower charge.
7
Appellant's overall minimum sentence was sixteen years, ten months, which was within
the standard range of the sentencing guidelines. The Court explained at the time of sentencing
that it was imposing such a significant sentence because the appellant showed no remorse for his
actions, including molesting his step -daughter over a period of .several months, threatening her
when she finally told someone what had happened, and finally carrying out that threat by
breaking into her grandparents' home and destroying the victim's bedroom first.
Analysis
On appeal, Appellant raises six issues. In his first and second issue, Appellant argues that
the Court erred indenying his Motion to Suppress and Motion to Sever. Next, Appellant
contends that the evidence was insufficient to sustain a guilty verdict. Fourth, Appellant argues
that the Court erred and abused its discretion in classifying him as a sexually violent predator.
Fifth, Appellant contends that the Court abused its discretion in imposing consecutive sentences
at the top of the standard range resulting in an "excessive and unreasonable aggregate sentence"
and failed to take into consideration mitigating circumstances. Finally, Appellant argues that the
court erred in failing to merge certain convictions for sentencing purposes.
Motion to Suppress and Motion to Sever
Appellant's first complaint on appeal is that the Court erred in denying his motion to
suppress his statements made in his post -polygraph interview, as well as all evidence resulting
therefrom. His second complaint is that the Court erred in denying his motion to sever.
Initially, it is important to note that both Appellant's motion to suppress and his motion to
sever were untimely. Appellant was arraigned on the burglary charges on November 3,2015,
and on the sexual offenses on November 24,2015, giving him thirty days from those dates to file
8
any pretrial motions. Furthermore, trial counsel in the person of Stacy Wolf was appointed on
April 12, 2016, after the Public Defender Office found they had a conflict in representing
Appellant, Appellant's motions were not filed until the morning of his scheduled jury trial, on
July 11, 2016, almost three months after trial counsel was appointed.
Trial counsel attempted to argue that she did not receive sufficient discovery until June
21, 2016, but admitted that she had discovery relating to the subject matter that she was seeking
to suppress, as well as access to conversations with her client, such that she would have been
aware of any issues regarding his incriminating statements. Furthermore, counsel conceded that
all discovery relevant to her motions was provided by June 21, 2016, and yet she did not file her
motion until the morning of trial, twenty days after she had received every item of discovery. It
is also important to note that the motion to sever, which was also filed on July 11, 2016, did not
require any discovery whatsoever; the Commonwealth's Notice of Trial Joinder was filed on
November 17, 2015. Assuming arguendo that there was good cause for trial counsel's
significant delay, both motions were properly denied.
In addressing the motion to suppress, this Court properly denied that motion, as it was
based on the inculpatory statements that Appellant made after he failed his polygraph
examination, which was done after he signed a Miranda waiver encompassing the post -
polygraph conversation. Examining the totality of the circumstances, Appellant's waiver of his
rights was done knowingly, intelligently, and completely voluntarily.
In reviewing the case law, the Court began with Commonwealth v. HiII, 104 A.3d 1220(Pa. 2014), as it was the case presented in. Appellant's motion to suppress. In Hill, the.
Commonwealth appealed to determine lijs a second set of Miranda warnings and a second
waiver required before questioning a criminal defendant immediately after he failed a polygraph
9
examination and waived his right to remain silent after being read Miranda warnings right before
the polygraph examination?" Id, at 1236. However, this case actually dealt with an ineffective
assistance of counsel claim, and the Supreme Court remanded this case to the Superior Court for
further findings. On remand, an unpublished opinion in Commonwealth v. Hill, 125 A.3d 445(Pa. Super. 2015), found that Hill had "knowingly, intelligently and voluntarily made his April
25, 1998 post-polygraph statement." The flit/ court cited Pfryrick v. Fields, 459 U.S. 42 (1982)
(per cariarn) for the "totality of the circumstances" test in determining if a defendant had waived
his right to counsel at a post -polygraph interview.
In the instant case, this Court undertook the totality of the circumstances evaluation at the
conclusion of the suppression hearing. The Court now relies primarily on those findings, as
follows:
The Court specifically finds that the Defendant came to the interview on his own.
He was told multiple times that he was free to leave.
He was left in the parking lot or the lobby several times unattended. He signed
his Miranda statement after it being read to him and thoroughly explained to him
on the video.
So the Court specifically finds that there is a valid initial waiver of his rights. The
case law then says to determine whether there's a valid post -polygraph waiver of
the right to look at the contents of the waiver and to look at whether there was a
request for counsel.
The waiver included the pre -interview, the polygraph, and the post -polygraph
interview, and that was explained to Mr. Keller, and that Mr. Keller never
requested counsel throughout this entire proceeding. He was never handcuffed.
He was. never in a locked room. He was allowed to leave, and he did, in fact,
leave.
Notes of Testimony, In Re: Omnibus Pretrial Motion, 7/11/16, pg. 71.
Appellant argued at the hearing that the fact that he was tired, etas taking two
medications, and had several beers the night before invalidated his lawful waiver of counsel.
I0
However, based on the totality of the circumstances, it is clear that Appellant validly waived his
right to counsel and never wavered in that decision. He never requested counsel, and never
indicated that he was done talking to the police. It was only when he was confronted with his
deception that he confessed to the crimes he had committed. Prior to that time, however, he had
asked to plead guilty, and had been given multiple opportunities to leave the station.
Furthermore, according to the specific waiver that he signed, Appellant knew that the polygraph
examination was being given in regard to "allegations that-you put your penis in [L.K.'s] vagina
while at your house from 2013-2015." Even after being provided that information, with specific,
serious allegations, Appellant signed the waiver, and proceeded to undergo the polygraph, take a
break, and then talk to the police in the post -polygraph interview. He then confessed in the post -
polygraph interview, but was still allowed to leave, as promised. His constitutional rights were
not infringed in any way.
In regard to Appellant's argument that the Court erred in denying his motion to sever, the
issue was again raised significantly past any time limitations provided by law. Assuming
arguencio that the motion to sever was timely raised, it was also properly denied.
Appellant was charged with three separate dockets. Docket B2444-2015 involved various
sexual charges with his minor stepdaughter as the victim. Docket #2648-2015 involved charges
of burglary, DUI, and related offenses, also involving the same victim, as well as her
grandparents. Docket #2440-2015 involved two counts of harassment, again involving the same
victim. Importantly, the interview with the State Police occurred on August 19, 2016, after
which Appellant, despite being instructed to have no contact with the victim or her grandparents,
repeatedly called, and then two days later, on August 21st, committed the actions relating to
Docket #2648-2015. The harassment charges at Docket #2440-2015 relate to the phone calls
11
made in the intervening two days between the interview and the burglary. While these acts may
have been separated by a few days, they were all part of a single chain of events and involved,
for the most part, the same victim. The victim's grandparents were only tangentially involved, as
the real target of Appellant's aggression and violence was L.K. For these reasons, the motion to
sever was properly denied.
Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to sustain the guilty verdicts. The
following standard applies when reviewing a sufficiency of the evidence claim:
whether viewing all the evidence admitted at trial in the light most favorable to
the verdict winner, there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt. In applying [the above]
test, we may not weigh the evidence and substitute our judgment for the fact -
finder. In addition, we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence. Any doubts
regarding a defendant's guilt may be resolved by the fact -finder unless the
evidence is so weak and inconclusive that as a matter of law no probability of fact
may be drawn from the combined circumstances. The Commonwealth may
sustain its burden of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all evidence actually received
must be considered. Finally, the [finder} of fact while passing upon the credibility
of witnesses and the weight of the evidence produced, is free to believe all, part or
none of the evidence.
Commonwealth v. Best, 120 A.3d 329, 341 (Pa. Super. 2015).
In the present case, over the course of the five day trial a significant amount of testimony
was given and substantial evidence was introduced. The evidence established, beyond a
reasonable doubt, that over the course of several months, Appellant had sexually assaulted L.K.
on numerous occasions. After he discovered that she had reported his assaults, the Appellant
called and threatened her that he was coming, then drove to her grandparents' home while
intoxicated, broke down the door and destroyed the inside of the victim's bedroom as well as the
12
grandparents' bedroom. The victim's testimony was clearly found to be credible by the jury and
alone is sufficient to establish Appellant's guilt regarding the. sexual crimes: Additionally, the
jury saw the video of Appellant's confession to the crimes, Patrolman Cervola testified
concerning the burglary, DUI, and other related offenses, and the jury heard recordings of
Appellant's calls to the victim and family threatening to cause her harm. The jury found this
testimony and evidence to be credible. While Appellant testified and denied the allegations, the
jury chose to not find his testimony credible.. Moreover, the issue of credibility goes to the
weight, not sufficiency of the evidence, Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa.
Super. 2003). The Court may not substitute its judgment for that of the jury as fact -finder; there
was sufficient evidence in the present case to sustain the guilty verdicts on all charges.
Sexually Violent Predator Determination
Appellant argues that the Court erred and abused its discretion in classifying Appellant as
a sexually violent predator ("SVP"). The Superior Court has a well -established standard in
reviewing a SVP designation:
In order to affirm an SVP designation, we, as a reviewing court, must be able to
conclude that the fact-finder found clear and convincing evidence that the
individual is a sexually violent predator. As with any sufficiency of the evidence
claim, we view all evidence and reasonable inferences therefrom in the light most
favorable to the Commonwealth. We will reverse a trial court's determination of
SVP status only if the Commonwealth has not presented clear and convincing
evidence that each element of the statute has been satisfied.
Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa. Super. 2011) (quoting Commonweatth v.
Fuentes, 991 A.2d 935, 942 (Pa. Super. 2010). When evaluating the testimony of witnesses, the
fact finder is free to accept or reject the credibility of expert and lay witnesses alike, and may
believe all, part or none of the evidence. .Nemirovsky v. Nemirovsky, 776 A.2d 988, 993 (Pa.
Super. Ct. 2000). "The credibility of witnesses, professional or lay, and the weight to be given
13
their testimony is strictly within the proper province of the trier of fact." Summers
v. Certainteed Corp,, 997 A.2d 1152, 1161 (Pa. 2010) (quoting In re Estate of Hunter, 205 A.2d
97, 102 (Pa. 1964)).
In the instant case, both the Commonwealth and Appellant presented expert testimony on
the issue of whether Appellant is a sexually violent predator. The Court chose to find the
Commonwealth's expert, Dr. Stein, to be more credible than Appellant's expert, Dr. Haworth.
The fact that Appellant presented an expert who disagreed with Dr. Stein does not mean that the
Commonwealth failed to present sufficient evidence to satisfy the clear and convincing evidence
standard. Dr. Stein testified that in his professional opinion, to a reasonable degree of
professional certainty, Appellant should be found to be a sexually violent predator in accordance
with the required statutory factors. In his testimony, he noted that he only finds that a person
meets this criteria in approximately twenty percent of the cases he reviews. The Court chose to
credit his testimony over that of Dr. Haworth, and did not abuse its discretion.
Sentencing
Appellant argues that the Court abused its discretion in imposing consecutive sentences
as well as sentences at the "very top" of the standard range, which resulted in an excessive and
unreasonable aggregate sentence. Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of
discretion. Commonwealth v. Dotter, 589 A.2d 726 (Pa. Super. 1991). "[X]II abuse of discretion
is not shown merely by an error in judgment [, but rather] the appellant must establish, by
reference to the record, that the sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision." Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017). A
14
sentence within the standard range of the guidelines is presumptively reasonable. See
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009), Furthermore, a sentencing
court "has the discretion to impose sentences consecutively or concurrently and, ordinarily, a
challenge to this exercise of discretion does not raise a substantial question." Id. (citation
omitted). See also 42 Pa. C.S. § 9721(a). "The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most extreme circumstances,
such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and
the length of imprisonment." Commonwealth v. floury; 992 A,2d 162, 171-72 (Pa. Super. 2010)
(citation omitted). Finally, our Supreme Court has held that where the trial court possesses a pre-
sentence report, it is presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion should not be
disturbed. Commonwealth v. Devers. 546 A.2d 12 (Pa. 1988).
The sentence imposed by the Court, while significant, was not excessive, unreasonable,
or unduly harsh given the facts of the case. Appellant sexually assaulted his step -daughter on
multiple occasions over the course of several months. The victim was .a young teenage girl, who
was preyed upon within her home and by a person who was entrusted with her care. Once she
came forward and an investigation was begun, Appellant threatened physical violence against the
victim and subsequently carried out those threats, He drove to the victim's grandparents' house
while heavily intoxicated, used a machete to break down the door, and immediately went to the
victim's room and caused significant damage. These actions caused a great deal of emotional
harm to the victim, as she stated very eloquently, though tearfully, at the time of sentencing. The
Court's decision to run some of the sentences consecutively instead of concurrently was in large
part due to the serious nature of the crimes, the extended period of time and continued escalation
15
of violence, and the lack of remorse shown by Appellant. Appellant not only used his position of
authority to repeatedly take advantage of his step-daughter, but then turned to physical violence
when his actions became known, and even went so far as to blame the victim for the crimes he
had conunitted. The significance of Appellant's sentence was due to the seriousness of his
actions and not due to partiality, prejudice, bias or ill will. The Court relied on the pre -sentence
investigation report in making its decision, but is unsure what "substantial mitigating
circumstances" exist in this case as none were addressed by defense counsel or Appellant at time
of sentencing, except for two letters presented from family members in support of Appellant.
Additionally, all of the sentences were within the standard range and therefore are presumptively
reasonable. The Court did not abuse its discretion in sentencing Appellant.
Merger
Finally, we consider Appellant's contention that certain convictions should have merged
for sentencing purposes, specifically: indecent assault (18 Pa, C.S. § 3216(a)(1)) with aggravated
indecent assault (18 Pa. C.S. § 3125(a)(1)), indecent assault (18 Pa. C.S. § 3126(a)(8)) with
aggravated indecent assault (18 Pa. C.S. §3125(a)(8)), corruption of minors with aggravated
indecent assault, and sexual assault with aggravated indecent assault.
Under 42 Pa. C.S. § 9765, crimes do not merge for sentencing purposes unless (1) the
crimes arise from a single criminal act and (2) all of the statutory elements of one offense are
included in the statutory elements of the other offense. 42 Pa. C.S. § 9765. "If the offenses stem
from two different criminal acts, merger analysis is not required." Commonwealth v. Williams,
958 A.2d 522, 527 (Pa. Super. 2008) (citation omitted). In this regard,
[t]lie threshold question is whether [the defendant] committed one solitary
criminal act. The answer to this question does not turn on whether there was a
"break in the chain" of criminal activity. Rather, the answer turns on whether
"the actor commits multiple criminal acts beyond that which is necessary to
16
establish the bare. elements of the additional crimej.]" If so, then the defendant
has committed more than one criminal act. This focus is designed to prevent
defendants from receiving a "volume discount on crime."
Commonwealth v. Robinson, 931 A.2d 15, 24-25 (Pa. Super. 2007) (citations omitted).
In the present case, the victim testified that Appellant committed multiple different sexual
acts over a period of several months. Though the victim could not provide exact numbers, it was
clear that there were more acts than crimes charged, and the victim testified to specifics of
separate acts on separate occasions. Consequently, even assuming arguencto that all of the
statutory elements of one offense are included in the statutory elements of the other offense,
there was no single criminal act in the present case but rather many acts. Appellant's multiple
acts at different times fail the first prong of the test under the merger doctrine. Therefore, the
Court did not err in refusing to give Appellant a "volume discount" for his multiple acts and not
merging any of the above mentioned crimes for sentencing purposes.
It is respectfully submitted that the Court committed no abuse of discretion or errors of
law and therefore should be affirmed.
July 14, 2017
Erin Bloxhatn, Esquire
Assistant District Attorney
Stacy Wolf, Esquire
Court -appointed for Defendant
:rim
17