Com. v. Ricci, M. ( 2023 )

J-A16032-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL GEORGE RICCI :
:
Appellant : No. 1308 MDA 2022
Appeal from the Judgment of Sentence Entered August 23, 2022
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000723-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 7, 2023
Michael George Ricci (Appellant) appeals from the judgment of sentence
entered in the Cumberland County Court of Common Pleas after his jury
convictions of one count each of corruption of minors and unlawful contact
with a minor, and two counts of indecent assault.1 On appeal, Appellant
argues the trial court abused its discretion when it granted, following closing
arguments, the Commonwealth’s oral motion to amend the information as to
unlawful contact, from Subsection 6318(a)(5) (child pornography) to
Subsection 6318(a)(1) (sexual offenses). After review, we affirm the
judgment of sentence, but remand to the trial court for correction of a clerical
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118 Pa.C.S. §§ 6301(a)(1)(ii), 6318(a)(1), 3126(a)(1), 3126(a)(8) (victim
under 16 years of age), respectively.
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error, as Appellant’s record continues to reflect a conviction under Subsection
6318(a)(5).
We first note: to commit unlawful contact under Subsection 6318(a)(1),
a party must have intentional contact with a minor for the purpose of engaging
in a sexual offense listed under Chapter 31, which includes indecent assault.
See 18 Pa.C.S. § 6318(a)(1); see also 18 Pa.C.S. § 3126(a)(1), (8). To
commit unlawful contact under Subsection 6318(a)(5), a person must have
intentional contact with a minor relating to the creation, dissemination, and
possession of child pornography. See 18 Pa.C.S. § 6318(a)(5); see also 18
Pa.C.S. § 6312 (relating to child pornography).
On July 31, 2020, Cumberland County Child & Youth Services (CYS)
received an anonymous phone call disclosing then 14-year-old O.S. (Victim)
raised allegations of abuse against Appellant, her stepfather.2 See N.T. Jury
Trial at 52. After CYS received this phone call, Children’s Resource Center
Forensic Interviewer Megan Leader spoke with Victim about the accusations.
Id. at 54.
On October 16, 2020, the Pennsylvania State Police filed both a criminal
complaint and affidavit of probable cause. The complaint stated he was
charged with, inter alia, unlawful contact under Section 6318(a), but did not
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2 Victim was born in November of 2005. N.T. Jury Trial, 5/17/22, at 65.
Victim’s older half-sister, H.C., testified at trial that she made the phone call
to ChildLine, who then contacted CYS. Id. at 52, 110.
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specify any further subsection, i.e. (a)(1) or (a)(5).3 Police Criminal
Complaint, 10/16/20, at 2. Nevertheless, the supporting factual allegation
was that Appellant “corrupt[ed] the morals of [V]ictim by touching her vagina
with his finger, making inappropriate comments about [V]ictim’s body[,] and
inappropriately rubbing his body against [her].” Id. The accompanying
affidavit of probable cause did not list any offenses or criminal statutes, but
stated Appellant was accused of “inappropriately touch[ing]” Victim. See
Affidavit of Probable Cause, 10/16/20, at 1.
On March 15, 2021, the trial court held a preliminary hearing.4 On May
21st, the police filed a criminal information, which charged Appellant with
unlawful conduct under Subsection (a)(5), relating to the creation,
dissemination, and possession of child pornography. Criminal Information,
5/21/21, at 2 (unpaginated); see 18 Pa.C.S. §§ 6318(a)(5), 6312. The
information did not allege the underlying conduct for this charge, nor was
Appellant charged with any child pornography offenses under Section 6312.
See id.
This matter proceeded to a jury trial on May 17, 2022, where the parties
presented the following evidence. The Commonwealth called Victim, who
testified that starting when she was 13 or 14 years old, Appellant made
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3 We note the complaint specified the subsections of Appellant’s remaining
charges. Police Criminal Complaint at 2.
4 Upon informal inquiry of this panel, the trial court did not possess a copy of
the preliminary hearing transcript.
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“comments [to her] and [did] things that [made her] feel uncomfortable[.]”
N.T. Jury Trial at 70. This behavior lasted about six months. Id. at 82.
Appellant’s comments included that “if [Victim is] anything like [her] mom[,
she] will have . . . a good body[,]” she was “developing well[,]” her “butt and
. . . boobs . . . were nice[,]” and he “want[ed]” her to wear “Daisy Duke[ ]
shorts[.]” Id. at 70-71, 80. Victim also stated that when she was 14,
Appellant “started . . . asking what kind of underwear [she] had on, . . . pulling
[her] shirt forward [to] look down the front[,]” and “putting his hands . . .
down the side of [her] pants.” Id. at 72. Victim estimated that Appellant
asked her about her underwear about 20 times and what kind of bra she was
wearing a “couple” times. Id. at 73, 77. Victim testified that in response to
these comments, she would walk away, change the topic, or ask Appellant to
stop “[b]ecause it made [her] uncomfortable.” Id. at 72, 75, 77.
Victim testified Appellant also touched her back under her shirt up to
“her bra strap” and “one time[, he] took his finger and . . . flipped up the front
of [her] vagina” while she was wearing shorts. N.T. Jury Trial at 75, 77.
Lastly, Victim detailed that Appellant “rub[bed] up against [her leg and hip]
sometimes” with his “penis and . . . legs” while clothed. Id. at 78-79.
Victim’s older half-sister H.C. then testified that beginning around April
or May of 2020, Victim had “multiple” conversations with her regarding
Appellant’s behavior.5 N.T. Jury Trial at 109-11. She stated Victim texted her
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5 H.C. was 19 at the time of trial.
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that Appellant “put his hand up her shorts, [told] her she was developing
extremely well, [and made] her sit in his lap and [Victim] could feel [his]
erection.” Id. at 110.
The Commonwealth also presented Pennsylvania State Police Trooper
Krista Miller, the investigating officer in this matter. Appellant asked if Trooper
Miller obtained any physical evidence during the investigation, to which she
responded “[t]here wouldn’t have been any physical evidence to . . . obtain
based on the allegations.” N.T. Jury Trial at 61. She further explained that
“based on the allegations, even with touching, clothes can be laundered[, and]
your body can be washed . . . so even swabbing them would not be able to
determine” whether there was any prior touching. Id. at 62-63.
Appellant, represented by Sean M. Owen, Esquire (Trial Counsel),
testified in his defense that he never made inappropriate comments or
touched Victim sexually. N.T. Jury Trial at 171-72, 174, 177. He stated he
was “affectionate” with all his children, especially during the COVID-19
pandemic.6 Id. at 172. Appellant detailed that “[s]ometimes” before leaving
for work in the morning, he would be tired and go into Victim’s or M.R.’s
bedrooms and “lay beside them” while talking about their chores, but he did
not do anything sexual. See id. at 173-74. He testified that as the father,
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6 Appellant has two biological children, Victim’s younger half-siblings, M.R.
and E.R., who were 14 and 5 at the time of trial, respectively. N.T. Jury Trial
at 66-67, 178-79. M.R. and E.R. lived in the home with Victim, Appellant, and
Victim’s mother at the time of the alleged conduct. Id. at 166.
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he is “allowed to do that.” Id. Appellant also admitted to “snuggl[ing]” Victim
and his other children, but he did not think he was doing anything
inappropriate. Id. at 179, 185.
During direct examination, Appellant admitted he made comments
about Victim’s underwear by asking what color they were. N.T. Jury Trial at
175. He reasoned they “made her look funny[,]” and thus, he and Victim’s
mother “bought [her] different [underwear.]” Id. at 175-76. When asked if
he “ever ma[de] inappropriate sexual comments about [Victim’s] boobs and
butt[,]” he responded: “I made comments. I make comments about all of my
children, all of them growing up. I say that about [E.R. and M.R.] It is just
normal talk that fathers do.” Id. at 176. Further, when asked if he “ever
intentionally touch[ed Victim] in a sexual manner[,]” he responded, “Never[,]”
but stated they would “wrestle[ ] around” and “play[.]” Id. at 178.
With respect to the unlawful contact charge, both parties’ closing
arguments focused on Appellant’s inappropriate comments and touching of
Victim,. See N.T. Jury Trial at 195-97, 199-200. Following closing arguments,
Trial Counsel informed the trial court the jury instruction regarding unlawful
contact “alluded to [Section] 6318(a)(1)[,]” relating to sexual offenses, but
upon review of the information, he noticed Appellant was charged under
Subsection (a)(5), relating to child pornography. Id. at 207. Trial Counsel
requested the court to amend the jury instructions to Subsection (a)(5). Id.
at 208. The Commonwealth responded both parties and the court were
operating “under the impression” that Appellant was charged under
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Subsection (a)(1), and the information merely contained an “administrative
or . . . clerical error[.]” Id. The Commonwealth then orally motioned to
amend the information to charge Appellant under Subsection (a)(1). Id.
Appellant objected. Id. The trial court granted the motion, ruling the
information would “be amended to conform to what everybody has been
operating on since day one [of] trial.” Id.
The jury found Appellant guilty on all charges. On the jury’s verdict
sheet, it specified it found Appellant guilty of unlawful contact for: (1)
“rubbing” his penis against Victim; (2) “flick[ing] her vagina with his finger[;]”
(3) touching her underneath the waistband of her shorts; and (4) putting his
hands up the back of her shirt to touch her bra strap. Verdict Slip Unlawful
Contact, 5/19/22.
On August 23, 2022, the trial court sentenced Appellant to the following:
(1) for corruption of minors, a term of six to 23 months’ incarceration; (2) for
unlawful contact with a minor, five years’ probation — a sentence below the
standard guideline range; (3) for indecent assault, two years’ probation; and
(4) for indecent assault (victim under 16 years old), two years’ probation. The
court ordered each sentence to run concurrently. Although the trial court
granted the Commonwealth’s motion to amend the information to Subsection
(a)(1), the guideline sentencing form and criminal docket reflect Appellant
was sentenced under Subsection (a)(5).
With new counsel, Craig E. Kauzlarich, Esquire, Appellant filed a timely
notice of appeal and complied with the trial court’s order to file a concise
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statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
He raises the following for our review:
Did the Honorable [t]rial [c]ourt err and commit an abuse of
discretion in granting the Commonwealth’s Motion to Amend
Count 2 of the Information, when such motion was highly untimely
and prejudicial to the defense due to not being made until after
the close of evidence and closing arguments?
Appellant’s Brief at 5.
In Appellant’s sole claim on appeal, he avers the trial court erred when
it allowed the Commonwealth to amend the information after closing
arguments. We review such a challenge for an abuse of discretion. See
Commonwealth v. Sandoval, 266 A.3d 1098, 1101 (Pa. Super. 2021).
An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise
of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.
If in reaching a conclusion the trial court overrides or misapplies
the law, discretion is then abused and it is the duty of the appellate
court to correct the error.
Id. (citation omitted).
The statute for unlawful contact provides in pertinent part:
(a) Offense defined. — A person commits an offense if he is
intentionally in contact with 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).
* * *
(5) Sexual abuse of children as defined in section 6312
(relating to sexual abuse of children).
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18 Pa.C.S. § 6318(a)(1), (5).
The current version of Pennsylvania Rule of Criminal Procedure 564
governs when the trial court may allow amendment of the charges against a
defendant:
The court may allow an information to be amended, provided that
the information as amended does not charge offenses arising from
a different set of events and that the amended charges are not so
materially different from the original charge that the defendant
would be unfairly prejudiced. Upon amendment, the court may
grant such postponement of trial or other relief as is necessary in
the interests of justice.
Comment:
The rule was amended in 2016 to more accurately reflect the
interpretation of this rule that has developed since it first was
adopted in 1974. See Commonwealth v. Brown, 727 A.2d 541(Pa. 1999). See also Commonwealth v. Beck, 78 A.3d. 656
(Pa. Super 2013); Commonwealth v. Page, 965 A.2d 1212 (Pa.
Super. 2009); Commonwealth v. Sinclair, 897 A.2d 1218 (Pa.
Super. 2006).
Pa.R.Crim.P. 564 & comment. “The purpose of this rule is to ‘ensure that a
defendant is fully apprised of the charges, and to avoid prejudice by
prohibiting the last minute addition of alleged criminal acts of which the
defendant is uninformed.’” Commonwealth v. Jackson, 215 A.3d 972, 979
(Pa. Super. 2019) (citation omitted).
As Appellant discusses the previous version of Rule 564, we note the
prior rule dictated the following:
The court may allow an information to be amended when there is
a defect in form, the description of the offense(s), the description
of any person or any property, or the date charged, provided the
information as amended does not charge an additional or different
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offense. Upon amendment, the court may grant such
postponement of trial or other relief as is necessary in the
interests of justice.
See Pa.R.Crim.P. 564 (2016).
When reviewing a challenge to an amendment to a criminal information,
we consider
[w]hether the crimes specified in the original indictment or
information involve the same basic elements and evolved
out of the same factual situation as the crimes specified in
the amended indictment or information. If so, then the
defendant is deemed to have been placed on notice
regarding his alleged criminal conduct. If, however, the
amended provision alleges a different set of events, or
defenses to the amended crime are materially different from
the elements or defenses to the crime originally charged,
such that the defendant would be prejudiced by the change,
then the amendment is not permitted.
Relief is warranted only when the amendment to the information
prejudices a defendant. Factors to be considered when
determining whether [the defendant] was prejudiced by the
Commonwealth’s amendment include whether the amendment
changes the factual scenario; whether new facts, previously
unknown to [the defendant], were added; whether the description
of the charges changed; whether the amendment necessitated a
change in defense strategy; and whether the timing of the request
for the amendment allowed for ample notice and preparation by
[the defendant].
Jackson, 215 A.2d at 979-80 (citations omitted).
Returning to Appellant’s argument, he avers the trial court abused its
discretion when it permitted the Commonwealth to amend the criminal
information after closing arguments because it was “highly untimely and
prejudicial[.]” Appellant’s Brief at 11. He alleges that the prior versions of
Rule 564 permitted amendments when there was a “defect in form[,]” but the
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current version of the rule removed this language. Id. Thus, he contends the
rule, as presently written, does not support amendments for “clerical
error[s.]” Id. at 12, 17.
Appellant insists the amendment caused him prejudice because it
“changed the factual scenario” and description of the charges and added “new,
previously unknown facts[,]” and the Commonwealth’s motion was so
untimely that he received no notice to defend against the charge. Appellant’s
Brief at 13-15. Appellant contends that he was not on notice to defend against
unlawful contact under Subsection (a)(1), and he proceeded as if defending
against Subsection (a)(5) — unlawful contact relating to child pornography.
See id. at 13-14. He maintains that “indecent assault was not alleged to
serve as the underlying act for purposes of unlawful contact [and] was a novel
theory never presented to the defense until after” closing arguments. Id. at
14. Appellant argues the Commonwealth “moved the goal posts after the
game . . . concluded.” Id. at 15. He also avers that despite the amendment,
public records currently erroneously reflect that he was convicted of unlawful
contact under Section 6318(a)(5).7 Id. at 11, 17-18. No relief is due.
In the instant case, the trial court reasoned it did not abuse its discretion
when it granted the Commonwealth’s motion to amend. Trial Ct. Op.,
11/9/22, at 1. Specifically, it noted:
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7 We note Appellant acknowledges that unlawful contact under the amended
subsection “would not have changed the guideline range” of sentences.
Appellant’s Brief at 8 n.3.
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The amended offense did not emerge from a different set of
events than those originally charged, i.e. the long-running abuse
of [Victim]; nor was it “so materially different” from the original
charges that [Appellant] was unfairly prejudiced. Pa.R.Crim.P.
564[; see] Sandoval, 266 A.3d 1098 . . . (“the test is [whether
the offenses] involve the same basic elements and evolved out of
the same factual situation”). Indeed, violations of Pa.C.S. §
3126(a)(1) [(indecent assault)] and (8) (indecent assault of a
minor), with which [Appellant] was originally charged, all but
entail the violation of 18 Pa.C.S. § 6318(a)(1) (contact with minor
for purpose of committing offense under Chapter 31), the sole
additional element of the latter being “contact” in the
communicative rather than physical sense. . . .
[The] discussion of the matter with counsel at sidebar
suggested that the original citation to [18 Pa.C.S.] § 6318(a)(5)
was, indeed, a clerical error and that [Trial Counsel] had always
anticipated defending his client against the charge as amended.
We have heard no argument as to precisely how [Appellant] was
prejudiced by the amendment and find it difficult to envision how
that might have occurred under the circumstances. . . .
Id. at 2-3 (some citations omitted). We agree.
First, we address Appellant’s argument that Rule 564 does not allow
amending an information due to a “defect in form.” See Appellant’s Brief at
11-12, 17. Contrary to Appellant’s assertion, the current version of Rule 564
did not narrow the scope of application. The comment to the current Rule
cited caselaw to explain the changes, none of which support Appellant’s
contention for this interpretation. See Brown, 727 A.2d at 544-45 (the
defendant was entitled to a new trial because he could not have anticipated
the Commonwealth would amend the criminal information — initially charging
him with rape by forcible compulsion and involuntary deviate sexual
intercourse (IDSI) by forcible compulsion — to rape of an unconscious person
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and IDSI of an unconscious person, based on the evidence offered at the
preliminary hearing, and the change rendered his defense a nullity); Beck, 78
A.3d at 661 (the defendant was not prejudiced after the Commonwealth
amended the information to add driving under the influence (DUI) —high rate
of alcohol, because he: (1) was on notice, due to prior filings, that the
additional charge would be included; (2) cross-examined the Commonwealth’s
witness on information relevant to a defense on this charge; (3) did not assert
any specific prejudice suffered as a result of the amendment; and (4) did not
request a postponement to retain an expert witness); Page, 965 A.2d at 1224(the defendant was not prejudiced by the Commonwealth’s amendment to the
information for an aggravated indecent assault charge, from a child under 18
to a child under 13, because the amendment did not require a change in
defense strategy; child victim was known to the defendant before trial and he
was aware age was an element of the offense); Sinclair, 897 A.2d at 1223-
24 (the defendant did not suffer prejudice when the Commonwealth amended
the information to include an additional charge of DUI — high rate of alcohol,
because the underlying facts supporting this charge were known to the
defendant from the time he was charged and no substantive changes were
made to the elements of the crime). The above cases determined whether a
defendant experienced prejudice based on whether they had notice the
amended charges could be brought against them. The cases did not address
whether, as Appellant argues, amendment was proper due to a “defect in
form.”
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Next, we address Appellant’s argument that he was not on notice to
defend against unlawful contact as amended. See Appellant’s Brief at 13. We
disagree. Appellant correctly recounts that the criminal information specified
he was charged at Section 6318(a)(5). See Criminal Information at 2.
However, both the criminal complaint and affidavit of probable cause alleged
the specific conduct underlying the charges — that Appellant made
“inappropriate comments” and “inappropriately touched” Victim. See Affidavit
of Probable Cause at 1 (stating Appellant “inappropriately touched” Victim);
Police Criminal Complaint at 2 (alleging Appellant “corrupt[ed] the morals of
[V]ictim by touching her vagina with his finger, making inappropriate
comments about [V]ictim’s body[,] and inappropriately rubbing his body
against [her]”).
Additionally, the parties’ opening and closing statements and
presentation of evidence, which Appellant ignores on appeal, inform our
analysis.8 In its opening statement, the Commonwealth highlighted that
Appellant “engage[d] in inappropriate conversations with” Victim, commented
on her body, and gradually began touching her in a sexual manner. See N.T.
Jury Trial at 44-45. The Commonwealth informed the jury that the “bulk of
the evidence” it was presenting was Victim’s testimony. Id. at 45. Then, in
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8 The Commonwealth argues in its brief that on the first day of trial, Appellant
agreed to jury instructions for unlawful contact under Subsection (a)(1). See
Commonwealth Brief at 16. However, the Commonwealth does not provide a
citation to the notes of testimony and upon our review, we could not locate
this discussion.
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its closing argument, the Commonwealth again focused on Appellant’s
comments and inappropriate touching, and told the jury it would need to “rely
on [V]ictim’s testimony primarily.” See id. at 199-200, 202-03, 206. Further,
regarding the elements of unlawful contact, the Commonwealth specified the
charge required “just . . . having communication[.]” Id. at 205. It argued
Appellant committed this offense by “having contact in person where
[Appellant] had the purpose of perpetrating the crime of indecent assault.”
Id. The Commonwealth did not allude to any accusations supporting
Subsection (a)(5), relating to child pornography, at any point during its case
in chief, opening statement, or closing argument.
In Appellant’s opening statement, he stated:
[The Commonwealth] alluded [that its] case . . . is going to hinge
solely on [Victim’s] testimony . . . and it is certainly true that [the
jury] could find [Appellant] guilty beyond a reasonable doubt
simply from [her] testimony . . . because that’s all [the
Commonwealth] ha[s]. . . .
[I]n this case, there is not going to be . . . any photographs,
there is not going to be any fingerprints, or DNA, or anything like
that, and those are all things that [the jury] should take into
consideration.
N.T. Jury Trial at 49-50 (paragraph break added).
During closing argument, Appellant noted there was, in fact, physical
evidence the Commonwealth failed to present, but only in the form of text
messages between Victim and H.C. discussing the abuse. N.T. Jury Trial at
195-96. Appellant then acknowledged the elements of a charge under
Subsection (a)(1):
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[T]he unlawful contact with a minor charge requires that the
contact be for the purpose of engaging in an indecent assault,
which is a physical touching, a physical assault.
Id. at 197. Appellant presented no argument in either his opening or closing
statements, nor evidence, related to unlawful contact under Subsection
(a)(5).
In light of the foregoing, we conclude no relief is due. Appellant was on
notice that he was defending against unlawful contact under Subsection
(a)(1), and the amendment did not introduce new or unknown facts. The
Police initially filed a criminal complaint and affidavit of probable cause
informing him of the specific conduct leading to criminal charges. The
surrounding circumstances and context at trial overwhelmingly demonstrate
Appellant had adequate notice of this crime, as he presented a defense against
conduct proscribed under Subsection (a)(1), not (a)(5). See N.T. Jury Trial
at 49-50, 195-97. Specifically, Appellant argued during closing argument that
his “unlawful contact with a minor charge requires that the contact be for the
purpose of engaging in indecent assault, which is a physical touching[.]” Id.
at 197. This comment was made before Appellant raised any Subsection
(a)(5) issue with the court. As such, the trial court did not abuse its discretion
in finding any insistence that he was not on notice, to defend against this
charge, was disingenuous.
Further, amending the information did not introduce new charges or
necessitate a material change in defense strategy. Subsections (a)(1) and
(a)(5) require differing underlying offenses. Appellant was charged with two
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counts of indecent assault, which also served as an underlying offense for
unlawful contact under Subsection (a)(1). Appellant knew of the allegations
against him and relied on a trial strategy that contemplated unlawful contact
under Subsection (a)(1). Neither the Commonwealth nor Appellant offered
any evidence or argument pertaining to any crimes relating to child
pornography, and as such, this amendment to the information did not
necessitate a change in trial strategy. Accordingly, Appellant was aware he
was defending against this charge, and experienced no prejudice when the
Commonwealth corrected its clerical error. See Jackson, 215 A.3d at 979-
80.
Thus, the amendment to the information did not violate Rule 564, which
seeks to ensure defendants are “fully apprised” of the allegations they are
facing and prevent prejudice resulting from “last minute addition[s]” during
trial. See Pa.R.Crim.P. 564; Jackson, 215 A.3d at 979. Under these
particular circumstances, we determine the trial court did not abuse its
discretion when it permitted an amendment to the information after closing
arguments. See Sandoval 266 A.3d at 1101; Jackson, 215 A.3d at 979-80.
Lastly, we address Appellant’s argument that the public records reflect
he was erroneously convicted of 18 Pa.C.S. § 6318(a)(5). See Appellant’s
Brief at 11, 17-18. Appellant insists this error requires this Court to vacate
his sentence and remand the matter for a new trial. Id. at 18. Instead, we
conclude this is merely a clerical error and does not warrant a new trial. See
Commonwealth v. Young, 695 A.2d 414, 419-20 (Pa. Super. 1997) (where
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facts recited at the defendant’s plea hearing supported one count of indecent
assault under 18 Pa.C.S. 3126(a)(1) (without complainant’s consent), and
parties agreed to withdrawal of separate count of indecent assault under
3126(a)(4) (complainant is unconscious), mistaken recording of the plea as
to 3126(a)(4) was a mere clerical error and did not amount to manifest
injustice, the defendant may not withdraw his plea, and court should have
corrected the clerical error to the proper subsection). Accordingly, we remand
for the limited purpose of correcting the criminal docket to reflect the proper
subsection of unlawful contact under which Appellant was convicted.
Judgment of sentence affirmed. Case remanded for limited purpose of
correction of clerical error. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2023
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