Com. v. Pearson, I. ( 2017 )

J-S13007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ISAAC BILAL PEARSON,
Appellant No. 1158 EDA 2016
Appeal from the Judgment of Sentence Entered March 7, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004988-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 18, 2017
Appellant, Isaac Bilal Pearson, appeals from the judgment of sentence
of an aggregate term of 17 to 34 years’ incarceration, imposed after a jury
convicted him of two counts of trafficking in individuals, 18 Pa.C.S. §§
3011(a)(1) and (a)(2), promoting prostitution, 18 Pa.C.S. § 5902(b)(3), and
criminal use of a communication facility, 18 Pa.C.S. § 7512(a). After careful
review, we affirm.
We need not reiterate the lengthy factual history of this case, as the
trial court provided a detailed summary of the facts underlying Appellant’s
convictions in its April 4, 2016 opinion denying his post-sentence motions,
which the court adopted for purposes of its Pa.R.A.P. 1925(a) opinion. See
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S13007-17
Trial Court Opinion (TCO), 4/4/16, at 3-7; see also Trial Court Rule 1925(a)
Opinion, 4/27/16, at 2-3 (adopting its April 4, 2016 opinion to address the
claims Appellant raises on appeal). We need only note that herein,
Appellant sets forth a three-page Statement of the Questions Presented, in
which he raises four issues that can be paraphrased as follows:
1. Was the verdict against the weight of the evidence?
2. Did the court consider improper facts in imposing statutory
maximum sentences for each of Appellant’s convictions?
3. Did Appellant’s conviction of promoting prostitution merge
with his conviction of trafficking in individuals?
4. Did the court err in failing to suppress evidence seized from
Appellant’s cell phones, where the search warrant stated it was
to be executed no later than 10:29 a.m. on October 2, 2015, but
the warrant was not executed until October 7, 2015?
See Appellant’s Brief at 4-6.
We have reviewed the thorough and well-reasoned opinion drafted by
The Honorable Maria L. Dantos of the Court of Common Pleas of Lehigh
County. We conclude that Judge Dantos’s opinion accurately and thoroughly
disposes of the first two issues raised by Appellant, in which he challenges
the weight of the evidence to sustain his convictions, and the discretionary
aspects of his sentence. See TCO at 2-11. Accordingly, we adopt Judge
Dantos’s decision as our own on those two issues.
In Appellant’s third issue, he contends that his conviction for
promoting prostitution should have merged with his conviction for trafficking
individuals. This claim implicates the legality of Appellant’s sentence. See
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J-S13007-17
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009) (“Whether [an]
[a]ppellant’s convictions merge for sentencing is a question implicating the
legality of [the] [a]ppellant’s sentence.”). The statute governing the merger
of offenses for sentencing purposes states:
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. In other words, section 9765 “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.” Baldwin, 985 A.2d at 833.
Here, Appellant’s underdeveloped argument does not convince us that
in this case, his crime of promoting prostitution merged with his offense of
trafficking in individuals. Notably, Appellant does not even acknowledge, let
alone challenge, the trial court’s conclusion that he “committed more than
one single criminal act….” See TCO at 13. Additionally, in regard to the
elements portion of the test for merger, Appellant merely sets forth the
statutory definitions of the two, at-issue offenses, and then abruptly ends his
argument without any discussion of how the elements of promoting
prostitution are subsumed within the elements of trafficking in individuals.
See Appellant’s Brief at 24. In sum, Appellant’s inadequate argument in
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J-S13007-17
support of his third issue is insufficient to convince us that his merger claim
has merit.
In Appellant’s fourth issue, he contends that the trial court erred by
denying his pretrial motion to suppress, where the search of three cell
phones recovered from his vehicle at the time of his arrest was illegal.
Appellant argues that the search of the phones was unlawful because the
warrant permitting that search had expired at the time the phones were
examined.
Our review of the record reveals that Appellant failed to present this
claim before the trial court. Instead, Appellant - who was acting pro se
when he litigated his pretrial motion to suppress - argued that his three cell
phones were illegally seized from his vehicle at the time of his arrest. See
N.T. Pretrial Hearing, 12/17/15, at 9-10. The suppression court only
addressed this claim, concluding that the seizure of the phones was lawful.
See Suppression Court Opinion, 12/23/15, at 17-18. Appellant did not
challenge, and the trial court did not assess, the validity of the subsequent
search of the cell phones, which was conducted after a warrant was
obtained. Moreover, even if Appellant’s challenge to the seizure of the
phones could be viewed as encompassing his claim that the search of the
phones was illegal, Appellant does not cite to where in the record he
specifically contended that the search was conducted after the warrant had
purportedly expired. Accordingly, because it is apparent that this specific
-4-
J-S13007-17
claim was never presented to the trial court, it is “waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
-5-
Circulated 03/30/2017 09:00 AM
IN THE COURT"OF
-COMMON PLEAS OF LEHIGHCOUNTY, PENNSYLVANIA
CRIMINAL DMSION
COMMONWEALTH OF PENNSYLVANIA )
)
vs. ) Case No. 4988/2015
)
ISAAC PEARSON, )
Defendant ) .
********
APPEARANCES:
ROBERT W. SCHOPF, ESQUIRE,
DEPUTY DISTRICT A'ITORNEY,
On behalf of the Commonwealth
ROBERT LONG, ESQUIRE,
On behalf of the Defendant
********
OPINION
MARIA L. DANTOS, J.
A jury trial was conducted in the within matter from February 1, 2016
through February 3, 2016. At the conclusion of the trial, the jury found the Defendant,
Isaac Pearson, guilty of two (2) counts of Trafficking in Individuals.! Promoting
Prostitution." and Criminal Use of Communication Facility.>Thereafter, on March 7,
2016, the Defendant was sentenced to a term of state imprisonment of not less than five
(5) years nor more than ten (10) years on each of the two (2) counts of Traffickingin
18 Pa. C.S.A. § 30ll{al{l) and 18 Pa. C.S.A. § 30ll(a)(2).
2 18 Pa. C.S.A. § 5902(b)(3).
APPENDIX B
Individuals; to a term of state imprisonment of not less than three and a half (3 %} years
nor more than seven (7) years on the charge ofPromoting Prostitution; and to a term of
state imprisonment of not less than three and a half (3 %} years nor more than seven (7)
years on the charge of Criminal Use of Communication Facility. All of sentences were
ordered to run consecutively to each other, for an aggregate term of state imprisonment
of not less than seventeen (17) years nor more than thirty-four (34} years. Presently
before this Court is Defendant's Post Sentence Motion pursuant to Pennsylvania Rule of
Criminal Procedure Rule 720. In his Post Sentence Motion, the Defendant filed a
Motion for a New Trial, challenging the weight of the evidence. Additionally, the
Defendant requests that this Court modify and reduce the sentence imposed.
A. Challenging the Weight of the Evidence
The Defendant alleges that the verdict was against the weight of the
evidence. This Court notes that a motion for a new trial on grounds that the verdict is
contrary to the weight of the evidence concedes that there is sufficient evidence to
sustain the verdict, but contends that it is against the weight of the evidence.
Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000);
Commonwealth v. Bennett, 827 A.2d 469, 481 (Pa. Super. 2003}. Furthermore, a
challenge that the verdict is against the weight of the evidence requires this Court to
conclude in its discretion that "the verdict is so contrary to the evidence as to shock
one's sense of justice." Lyons, 833 A.2d at 258. Indeed, for a new trial to lie on a
challenge that the verdict is against the weight of the evidence, the evidence must be
3 18 Pa. C.S.A. § 7512(a).
2
so tenuous, vague and uncertain that the verdict shocks the conscience of the court."
Commonwealth v. Shaffer, 722 A.2d 195, 200 (Pa. Super. 1998}. See also
Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003}.
In the instant case, the evidence presented at trial revealed that on
February 2, 2015, Detective Jason Krasley of the Allentown Police Department Vice
· and Intelligence Division was conducting a prostitution investigation. Detective
Krasley had responded to an ad4 placed on the internet that led to the exchange of
text messages with a female, later identified as Elizabeth Lopez. The female made
arrangements to meet Detective Krasley at a specific room at the Royal Motel on
Airport Road and East Congress Street, Allentown, Lehigh County, Pennsylvania.
Detective Krasleys proceeded to the designated room at the Royal Motel as instructed.
He saw the Defendant, later identified as Isaac Pearson, leave the motel room and get
into a dark-colored vehicle.s Once Detective Krasley was inside the motel room, Ms.
Lopez offered to have sex with him for money. When Detective Krasley asked to use
the bathroom, another female, later identified as Kelly Favazza, exited from the
bathroom. Ms. Lopez was arrested for prostitution? and Ms. Favazza was arrested for
possession of drug paraphernalia.f
4 The ad included a narrative, a photograph of a woman in provocative poses, and the
contact number of 484-353-3152.
s When Detective Krasley arrived in the parking lot of the Royal Motel, he parked his
vehicle and texted the female.
6 This vehicle was followed out of the area by Sergeant Roca of the Allentown Police
Department. ·
7 Ms. Lopez was helping Ms. Favazza pay for the motel room through prostitution.
8 Specifically, Ms. Favazza had in her possession empty waxine bags and used
hypodermic needles. Detective Krasley spoke with Ms. Favazza prior to booking. Ms. Favazza
informed Detective Krasley that her drug addiction was out of control and that she was in a
bad living situation. Detective Krasley offered to help her through providing services to her
when she was ready, and he furnished her with his business card and the contact information
for Agent Stephanie Snyder, a special agent for the Department of Homeland Security who
3
Kelly Favazza related that . she is twenty-nine years old, and had a
horrible heroin addiction. At the time of her arrest, Ms. Favazza was homeless and
penniless. Previously, she had been staying at a recovery house, where she met the
Defendant, an employee of the recovery house. Ms. Favazza had been using heroin
while staying at the recovery house, and the Defendant provided her with heroin.?
The Defendant had arranged for Ms. Favazza to leave the recovery house and stay at a
rnotel.. The Defendant posted Ms. Favazza's photograph on backpage.com and had a
cellular telephone with which to receive responses from the posting.t? (C. Ex. 1). The
Defendant expected Ms. Favazza to pay him back for the drugs and the motel room
through prostituting herself. Consequently, she would provide sex to men four (4) or
five (5) times a day, seven (7) days a week, in order to pay back the Defendant.
Through her prostituting herself, Ms. Favazza made approximately Two Hundred fifty
($250.00) to Four Hundred ($400.00) Dollars a day. She immediately turned over all
of the money that she made directly to the Defendant.r' While Ms. Favazza was
prostituting herself, the Defendant controlled her through limiting the amount of
heroin that he would give to her. Ms. Favazza explained that the Defendant
works in human trafficking. Ultimately, no charges were filed against Ms. Favazza in relation
to this day's events. Ms. Favazza eventually took Detective Krasley up on his offer to help her
on or around February 20, 2015. At this time, she left the Defendant and, with the assistance
of Detective Krasley, entered a drug rehabilitation facility.
9 Ms. Favazza indicated that the Defendant provided heroin to Ms. Lopez as well.
10 Moreover, the Defendant coached Ms. Favazza as to how to pose for the photographs
that he took of her to post on backpage.com, and what to say to the men when they arrived at
the motel room. {C. Ex. 1). In addition, the Defendant set the prices for her services, and
provided her with the provocative and skimpy clothing that she wore in. the photographs posted
on backpage.com, {C. Ex. 1). Ms. Favazza's name on backpage.com was "Sabrina" and "Sari."
(C. Ex. 1).
11 Many times the Defendant waited in his vehicle and immediately returned to collect the
money after the man left the motel room. Also, Ms. Favazza testified that the Defendant was a
student at Lehigh Carbon Community College and did not hold down a job. Even though he
was not gainfully employed, the Defendant always had a great deal of cash on his person.
4
manipulated her into thinking that the money that she made would ultimately benefit
her, and that he loved her.
Detective Krasley also spoke with Shelly Dewitt, the Defendant's
girlfriend. Detective Salvatore Aprile of the Allentown Police Department had provided
Detective Krasley with Ms. Dewitt's contact information. Specifically, Ms. Dewitt had
contacted theauto theft force and spoke with Detective Aprile because she suspected
that the Defendant had stolen her vehicle that she had rented from Enterprise Rental
Car. Ms. Dewitt had informed Detective Aprile that the Defendant promoted
prostitution on backpage.com and that he was using a "little white girl" as a
prostitute. Ms. Dewitt was forthright in providing contacting information about the
Defendant to the authorities because she wanted the Defendant apprehended and her
vehicle returned to her. When Detective Krasley spoke directly with Ms. Dewitt, she
provided him with three (3) cell phone numbers for the Defendant, informing him that
these numbers were involved in prostitution.
On March 12, 2015, Detective Krasley saw a post on backpage.com for a
Beautiful Latina, with a telephone number matching one that had been provided to
him by Ms. Dewitt. (C. Ex. 1). Detective Krasley utilized the telephone number
provided on backpage.corn, 610-972-8002,12 and he was instructed to go to Room 216
at the Roadway Inn on Downeyflake Lane, Allentown, Lehigh County, Pennsylvania.
(C. Ex. l; C. Ex. 2). At approximately 12:00 P.M., when Detective Krasley arrived at
the Roadway Inn utilizing the rear door, a Hispanic woman, later identified as Angelie
Schular, opened the door of Room 219 and told him that it was she who he was
12 Detective Krasley had seen other ads on backpage.com linked to this cell phone
5
. I looking for. After the agreement was reached regarding the exchange of sex for
money, Ms. Schular took off her clothes. At this point, Ms. Schular was detained and
interviewed. She informed Detective Krasley that her pimp was a black male named
Jay a/k/a Cap a/k/a Buddy. Then, in Detective Krasley's presence, she placed a call
to the Defendant's cell phone at 908-343-7621. Detective Krasley could hear a male
answer the phone and state that he was on his way.
At this point, Detective Krasley notified other units of the situation and
requested assistance in the arrest. Approximately ten (10} to fifteen (15} minutes
later, the Defendant arrived in a silver Chevrolet. Detective Krasley instructed the
marked units to detain the Defendant, as the Defendant had an outstanding felony
warrant for auto theft.
At the time of the Defendant's arrest, he had Nine hundred five
($905.00} Dollars on his person. He also had three (3} cell phones in the front cabin
section of the vehicle.P (C. Ex. 6). Furthermore, Detective Krasley dialed the number
that Ms. Schular had called earlier and one (l} of the Defendant's cell phones rang,
displaying Detective Krasley's telephone number. Detective Krasley also dialed
another number linked to backpage.com, 484-951-3833, and a second cell phone that
he had in his possession rang and displayed Detective Krasley's telephone number.
The Defendant was the sole occupant and registered owner of the vehicle.
Detective Krasley applied for and was granted a search warrant for the
Defendant's three (3} cell phones that were located in the front driver side and console
number. (C. Ex. 1).
13 At the time of the Defendant's arrest, Detective Alex De La Iglesia of the Allentown Police
Department patted down the Defendant for officer safety. He located the money on the
Defendant. Detective Alex De La Iglesia also located the three (3) cell phones in the Defendant's
6
area of his vehicle. (C. Ex. 3}; (C. Ex. 6}. A forensic analysis was done on the cell
phones at DeSales University by Jonathon Langton, an expert in digital forerisics.!"
(C. Ex 4); (C. Ex. 6). A review of the browsing history revealed photographs of the
scantily clad women that were posted on backpage.corn, extremely frequent visits to
the backpage.com website, as well as a video of the Defendant coaching Shelly Dewitt
to try to get a girl to return to work for him.
In addition, the Defendant's telephone calls were monitored while he was
housed in the Lehigh County Jail. (C. Ex. 5}; (C. Ex. 5A}. On some of these monitored
calls, the Defendant talked about being a pimp and controlling his girls. (C. Ex. 5);
(C. Ex. 5A}. He detailed that the girls need to listen to him and that he would not
tolerate them stepping out of line. (C. Ex. 5); (C. Ex. 5A).
From the evidence recounted above, it is reasonable for the jury to have
concluded that the Defendant recruited, enticed, solicited, harbored, transported,
provided, obtained or maintained Ms. Favazza, and that he lmew that Ms. Favazza
would be subject to involuntary servitude, and that he benefitted financially from it, and
that he controlled Ms. Favazza's access to heroin; and that he encouraged and induced
Ms. Favazza to become or remain a prostitute; and that he used his cellular telephone
to promote and facilitate prostitution. In light of this abundant evidence enumerated
above, the Defendant's challenge to the weight of the evidence must fail.
vehicle. (C. Ex. 6).
14
All three (3) cell phones were analyzed. However, the Alcatel and Samsung feature
phones were not supported by the analyst's tools, and consequently he was unable to extract
data from these two (2) phones. ln contrast, the Samsung smart phone data was usable. (C.
7
B. Motion to Modify and Reduce Sentence
Finally, the Defendant argues that the sentence imposed was harsh and
manifestly excessive, in that this Court considered improper factors in imposing this
sentence. The Defendant is challenging the discretionary aspects of sentencing.
Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003}. Initially this Court
notes that:
Sentencing is within the sound discretion of the sentencing
judge, and that decision will not be disturbed· absent an
abuse of discretion. Commonwealth v. Jones, 418 Pa.
Super. 93, 613 A.2d 587, 591 (1992}(en bane). 'To
constitute an abuse of discretion, the sentence imposed
must either exceed the statutory limits or be manifestly
excessive." Commonwealth v. Gaddis, 432 Pa. Super. 523,
639 A.2d 462, 469 (1994}. Nevertheless, sentencing
guidelines are merely advisory, and the court may, in its
discretion, sentence outside the guidelines. When a trial
court deviates from the guidelines, it must state its reasons
for deviation on the record at the time of sentencing or in a
contemporaneous written statement. Commonwealth v.
Lawson, 437 Pa. Super. 521, 650 A.2d 876, 881 (1994}.
The court must also consider the guidelines as a starting
point and deviate so as to impose a sentence consistent
with both the public's safety needs and the defendant's
rehabilitative needs. Id.
Commonwealth v. Shaffer, 722 A.2d 195, 198-199 (Pa. Super. 1998}. If "the
sentencing court proffers reasons indicating that its decision to depart from the,
guidelines is not unreasonable," its responsibilities have been fulfilled and the
appellate courts will not disturb the sentence. Commonwealth v. Gibson, 716 A.2d
1275, 1277 (Pa. Super. 1998).
In the instant case, the Defendant's minimum and maximum sentences
were set at the statutory maximums. Unquestionably, the sentences imposed did not
Ex. 4).
8
exceed the statutory limits. Therefore, the Defendant's sentence must be evaluated to
determine if it was "manifestly excessive." To do so, the following considerations must
be examined:
In determining whether a sentence is manifestly excessive,
the appellate court must give great weight to the
sentencing court's discretion, as he or she is in the best
position to measure factors such as the nature of the
crime, the defendant's character, and the defendant's
display of remorse, defiance, or indifference.
Commonwealth v. Ellis, 700 A.2d 948, 958. (Pa. Super.
1997}. Where an excessiveness claim is based on a court's
sentencing outside the guideline ranges, we look, at a
minimum, for an indication on the record that the
sentencing court understood the suggested sentencing
range. 42 Pa. C.S.A. § 972l(b}. When the court so
indicates, it may deviate from the guidelines, if necessary,
to fashion a sentence which takes into account the
protection of the public, the rehabilitative needs of the
defendant, the gravity of the particular offenses as it relates
to the impact on the life of the victim and the community,
so long as the court also states of record the factual basis
and specific reasons which compelled him to deviate from
the guideline range.
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003} (citations omitted}.
Moreover, "[i]t is well-settled that appeals of discretionary aspects of a
sentence are not reviewable as a matter of right." Commonwealth v. Ladamus, 896
A.2d 592, 595 (Pa. Super. 2006}; see also Commonwealth v. Shugars, 895 A.2d 1270,
1274 (Pa. Super. 2006}; Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super.
2003}. The defendant must demonstrate that a substantial question exists
concerning the sentence. Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super.
2005}. Furthermore, a substantial question requires something more than an
allegation that the sentences imposed are excessive or harsh. Ladamus, 896 A.2d at
595. Consequently, Defendant's assertion that this Court abused its discretion by
9
imposing an excessive and harsh sentence fails to present a substantial question to
justify a review of his c1aim.
Additionally, even if the merit of the Defendant's sentencing claim were
addressed, Defendant's argument must fail. The Defendant's sentence must initially
be evaluated to determine if there was an abuse of discretion. Commonwealth v.
Walls, 926 A.2d 957 (Pa. 2007). The standard of review has been explained in the
followingmanner:
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. In this
context, an abuse of discretion is not shown merely by an
error in judgment. 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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth
v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)(en bane).
In imposing the Defendant's sentence, this Court considered the
"protection of the public, the gravity of the offense as it relates to the impact on the
victim and the community, the defendant's rehabilitative needs, and the sentencing
guidelines." 42 Pa. C.S.A. § 972l(b); Commonwealth v. Feucht, 955 A.2d 377, 383
(Pa. Super. 2008).
Prior to sentencing, this Court. carefully reviewed the Pre-Sentence
Investigation Report prepared on February 26, 2016. Therefore, this Court did not fail
to consider mitigating factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12
(1988) (holding that where a pre-sentence report exists, there is a presumption that
the sentencing judge was aware of and adequately considered information relevant to
10
the defendant's character, as well as any mitigating factors). Indeed, this Court was
cognizant of the Defendant's prior criminal history which included thirteen (13}
arrests and eight (8) convictions; his incurring of four (4) misconducts while in the
Lehigh County Jail; his arrogant and defiant tone that he took with the Presentence
Investigation officer; and the recommendation of the Presentence Investigation Officer.
This Court set forth its reasons on the record for imposing the maximum
sentence allowable by law. Specifically, (1) the Defendant is a danger ~o society; (2)
the Defendant has a violent prior criminal history; (3) the duration of the criminal
activity involved in the within matter; (4) the Defendant's poor potential for
rehabilitation; (5) the victim was extremely vulnerable because of her drug addiction;
and (6) the Defendant's lack of acceptance of any responsibility. Using its discretion,
this Court imposed a sentence that was within the statutory limits and in compliance
with the law. is
Additionally, the Defendant maintains that the offenses of Human
Trafficking and Promoting Prostitution merge for sentencing purposes. The
Defendant's assertion is without merit. The elements necessary to establish the crime
of Trafficking in Individuals and Promoting Prostitution are set forth in 18 Pa. C.S.A.
is Additionally, it is axiomatic that the imposition of consecutive rather than concurrent
sentences lies within the sound discretion of the sentencing court. Commonwealth v. Booze,
953 A.2d 1263, 1279 (Pa. Super. 2008). Long-standing precedent recognizes that 42 Pa. C.S.A.
§ 9721 affords the sentencing court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same time or to sentences already
imposed. 42 Pa. C.S.A. § 9721. See also Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.
Super. 2008); Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005). "A challenge to
the imposition of consecutive rather than concurrent sentences does not present a substantial
question regarding. the discretionary aspects of sentence." Commonwealth v. Lloyd, 878 A.2d
867, 873 (Pa. Super. 2005). Indeed, the Superior Court of Pennsylvania has stated: uwe see no
reason why [a defendant) should be afforded a 'volume discount' for his crimes by having all
sentences run concurrently." Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212,
1214 (1995).
11
§ 301l(a)(l), 18 Pa. C.S.A. § 3011(a}(2}, and 18 Pa. C.S.A. § 5902(b}(3}, respectively,
which provide in pertinent part:
18 Pa. C.S.A. § 3011(a}(l},Trafficking in Individuals:
A person commits a felony of the second degree if the
person:
recruits, entices, solicits, harbors, transports, provides,
obtains or maintains an individual if the person lmows or
recklessly disregards that the individual will be subject to
involuntary servitude
***
18 Pa. C.S.A. § 301 l(a}(2}, Trafficking in Individuals:
A person commits · a felony of the second degree if the
person:
lmowingly benefits financially or receives anything of value
from any act that facilitates any activity described in
paragraph (1).
***
18 Pa. C.S.A. § 3001, Definition of Involuntary Servitude:
labor servitude or sexual servitude
***
18 Pa. C.S.A. § 5902(b}{3}, Promoting Prostitution:
A person who knowingly promotes prostitution of another
commits a misdemeanor or felony as provided in
subsection (c} of this section. The following acts shall,
without limitation of the foregoing, constitute promoting
prostitution:
(3) encouraging, inducing, or otherwise intentionally
causing another to become or remain a prostitute
18 Pa. C.S.A. § 301 l(a}(l}, 18 Pa. C.S.A. § 301 l(a}(2), and 18 Pa. C.S.A. § 5902(b}(3}.
In the instant case, the jury found the Defendant guilty of two (2)
distinctly individual crimes, albeit arising out of the same principal events. It is well-
settled law that when a defendant commits multiple criminal acts beyond that which
12
is necessary to establish the fair limits of the additional crime, the defendant is guilty
of multiple crimes which do not merge for sentencing purposes. Commonwealth v.
Huckleberry, 429 Pa. Super. 146, 631 A.2d 1329 (1993). One test for determining
whether one offense merges into another for sentencing purposes is whether one
crime necessarily involves the other. Id. That is, whether the essential elements of
one crime must also be the essential elements of the other crime. Commonwealth v.
Wise, 298 Pa. Super. 485, 444 A.2d 1287 (1982); 42 Pa. C.S.A. § 9721. If more than
one single criminal act was committed, there will be no merger and a sentence will be
imposed for each act. Commonwealth v. Sayko, 333 Pa. Super. 265, 482 A.2d 559,
sentence reinstated, 511 Pa. 610, 515 A.2d 894 (1984).
In the instant case, the crime of Promoting Prostitution does not necessarily
involve the crime of Trafficking in Individuals, as all of the essential elements of
Promoting Prostitution are not included in the offense of Trafficking in Individuals.
The converse is true as well. Therefore, as the Defendant committed more than one
single criminal act, a sentence should be imposed for each of the offenses and the
merger of the sentences in this case would be improper. Accordingly,the Defendant's
Motion to Modifyand Reduce Sentence is denied.
Based on the foregoing, the Defend ant's Post Sentence Motions are
denied.
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