Com. v. Merklinger, J. ( 2015 )

J-A18016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JENNIFER L. MERKLINGER
Appellant No. 2195 MDA 2014
Appeal from the Judgment of Sentence entered November 24, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0001089-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 29, 2015
Appellant Jennifer L. Merklinger appeals from the judgment of
sentence entered in the Court of Common Pleas of Berks County (trial
court), following a bench trial that resulted in Appellant being found guilty of
institutional sexual assault under Section 3124.2(a.2)(1) of the Crimes
Code, 18 Pa.C.S.A. § 3124.2(a.2)(1). Upon review, we affirm.
On January 10, 2014, Appellant was charged with institutional sexual
assault under Section 3124.2(a.2)(1) for having sexual relations with a male
student. The affidavit of probable cause accompanying the complaint
provided in part:
[Appellant] confessed . . . and admitted to having kissed [the
victim] while parked [i]n the parking lot of the Berkshire Mall in
Wyomissing, Berks County, Pennsylvania on December 19, 2013
at approx. 6:00 p.m.
[Appellant] stated that on December 20, 2013, after being
picked up by the victim[, Appellant] had sexual intercourse in his
J-A18016-15
truck. The victim had taken [Appellant] to his home in the
Borough of Shoemakersville and again had [s]exual [i]ntercourse
on the livingroom [sic] sofa. [Appellant] and [the victim] then
went to Buck Rubs Club where she was drinking beer.
Upon the [v]ictim being interviewed, he admitted that [o]n
December 20, 2013 at approx. 8:30 p.m. the [v]ictim parked his
truck at the Fire Tower, located in Schuylkill County, where
[Appellant] had performed [o]ral [s]ex on him and gave him a
hand job.
On December 23, 2013, [Appellant] performed [o]ral [s]ex on
the victim due to having her [m]enstrual [c]ycle at her home in
the Borough of Hamburg, Berks County, Pennsylvania.
Affidavit of Probable Cause, 1/10/14.
On April 23, 2014, Appellant filed a “Motion to Quash the Bills [sic] of
Information,” asserting, inter alia, that Section 3124.2(a.2)(1) was
unconstitutionally vague to the extent it applied to women. Section
3124.2(a.2)(1) provides that “a person who is . . . an employee of a school
. . . commits a felony of the third degree when he engages in sexual
intercourse, deviate sexual intercourse or indecent contact with a student of
the school.” 18 Pa.C.S.A. § 3124.2(a.2)(1). Appellant also asserted that
Section 3124.2(a.2)(1) was unconstitutionally overbroad because it punished
a substantial amount of protected conduct. Following the Commonwealth’s
response, the trial court denied Appellant’s motion to quash the information
on July 30, 2014.
On August 5, 2014, Appellant waived her right to a jury trial. On
August 21, 2014, the case proceeded to a bench trial, at which Appellant
stipulated to the following facts:
1. [Appellant] is a female individual with a date of birth of
June 8, 1973.
-2-
J-A18016-15
2. [The victim] is a male individual with a date of birth of
September 12, 1995.
3. On or about the dates of December 13, 2013, through
January 1, 2014, [Appellant] engaged in sexual intercourse,
deviate sexual intercourse, and indecent contact, as defined in
18 Pa.C.S.A. § 3101, with [the victim]. These acts shall be
referred to as the “Sexual Acts.”
4. The Sexual Acts occurred on multiple occasions in Berks
County, Pennsylvania.
5. When [Appellant] and [the victim] engaged in Sexual Acts[,]
[the victim] was a student of Hamburg Area High School, and
[Appellant] was employed as a teacher’s aide at Hamburg Area
High School.
6. If called to testify[,] Criminal Investigator Angel C. Cabrera, of
Hamburg Police Department, would testify that [Appellant], on
January 03, 2014, voluntarily gave a written statement
admitting to the Sexual Acts.
Stipulation, 8/21/14. Following the stipulated bench trial, the trial court
convicted Appellant of institutional sexual assault under Section
3124.2(a.2)(1). On November 24, 2014, the trial court sentenced Appellant
to five years’ probation. Appellant timely appealed.
In her Pa.R.A.P. 1925(b) statement of errors complained of on appeal,
Appellant raised the following assertions of error:
1. The trial court erred as a matter of law [in] determining that
18 Pa.C.S.A. [§] 3124.2(a.2)(1) relating to institutional sexual
assault is enforceable and not unconstitutionally vague.
2. The trial court erred as a matter of law [in] determining that
18 Pa.C.S.A. [§] 3124.2(a.2)(1) relating to institutional sexual
assault is enforceable and not unconstitutionally overbroad upon
a basis that it punishes a substantial amount of conduct
protected by the United States and Pennsylvania Constitutions.
Rule 1925(b) Statement, 1/2/15. In response, the trial court issued a
Pa.R.A.P. 1925(a) opinion, concluding that Section 3124.2(a.2)(1) passed
constitutional muster.
-3-
J-A18016-15
On appeal, Appellant raises four issues for our review:
1. Whether the activity of adults engaging in consensual sexual
relations is a fundamental right protected by the Due Process
Clause of the Fourteenth Amendment of [sic] the United States
Constitution?
2. Whether the activity of adults to [sic] engaging in consensual
sexual relations is a fundamental right protected by Article I
Section 9 of the Pennsylvania Constitution?
3. Whether 18 Pa.C.S.A. [§] 3124.2(a.2)(1) relating to
institutional sexual assault is unconstitutionally vague?
4. Whether 18 Pa.C.S.A. [§] 3124.2(a.2)(1) relating to
institutional sexual assault is unconstitutionally overbroad
because it punishes a substantial amount of conduct protected
by the United States and Pennsylvania Constitutions?[1]
Appellant’s Brief at 4.2
At the outset, we note that Appellant has failed to preserve the first
two issues for our review, because she failed to include them in her Rule
1925(b) statement. The failure to raise an issue in an ordered Rule 1925(b)
statement results in waiver of that issue on appeal. See Commonwealth
v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding issues not raised in Rule
1925 concise statement are waived); see also Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
____________________________________________
1
To the extent Appellant asserts an overbreadth challenge under the
Pennsylvania Constitution, such challenge is abandoned because Appellant
failed to raise it in the argument section of her brief. See Pa.R.A.P.
2119(a), (b).
2
Appellant’s brief is largely a reproduction of her “Memorandum of Law in
Support of [Appellant’s] Motion to Quash Bills of Information” filed in the
trial court.
-4-
J-A18016-15
the provisions of this paragraph (b)(4) are waived.”). Because Appellant has
waived her first two issues, we begin our analysis with her third issue.
Appellant argues that Section 3124.2(a.2)(1) is vague because
“ordinary people of common intelligence must necessarily guess at the
meaning of the statute and reasonably could differ as to the statute’s
application to women.” Appellant’s Brief at 15. As a result, Appellant
argues that Section 3124.2(a.2)(1) violates the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. Id. at 10. To
bolster her argument, Appellant points to Section 3124.2(a.2)(1)’s use of
the masculine term “he.” Id. at 15. Appellant argues that Section
3124.2(a.2)(1) “does not provide a clear and reasonable standard by which
women can gauge their conduct.” Id. We disagree.
In analyzing the constitutionality of Section 3124.2(a.2)(1), we
recognize:
[T]here is a strong presumption in the law that legislative
enactments do not violate the constitution. Moreover, there is a
heavy burden of persuasion upon one who challenges the
constitutionality of a statute. As a matter of statutory
construction, we presume the General Assembly does not intend
to violate the Constitution of the United States or of this
Commonwealth. A statute will not be declared unconstitutional
unless it clearly, palpably, and plainly violates the Constitution;
all doubts are to be resolved in favor of a finding of
constitutionality.
Commonwealth v. Mayfield, 832 A.2d 418, 421 (Pa. 2003) (internal
quotation marks and citations omitted).
With respect to the constitutional vagueness standard, our Supreme
Court explained in Mayfield:
-5-
J-A18016-15
The terms of a penal statute creating a new offense must be
sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties. A
statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application
violates the first essential of due process of law.
The void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and
discriminatory enforcement. Due process is satisfied if the
statute provides reasonable standards by which a person may
gauge his future conduct.
Id. at 422 (internal quotation marks and citations omitted). Moreover, it is
settled that “vagueness challenges to statutes which do not involve First
Amendment freedoms must be examined in the light of the facts of the case
at hand.”3 Id.In Mayfield, our Supreme Court addressed a constitutional vagueness
challenge to a provision of Section 3124.2 pertaining to corrections officers.
The Commonwealth in Mayfield contended that the trial court erred in
declaring Section 3124.2 unconstitutionally vague because it failed to
defined the terms “inmates” and “employees.” Id. Our Supreme Court
agreed. In so doing, the Court concluded:
Applied to appellee’s[, a corrections officer’s,] conduct, the
statute could not be clearer. In pertinent part, § 3124.2
provides, “[A] person who is an employee or agent of . . . a
county correctional authority . . . commits a felony of the third
degree when that person engages in sexual intercourse . . . or
indecent contact with an inmate[.]” 18 Pa.C.S. § 3124.2(a).
The statute’s plain language reveals the intent of the General
____________________________________________
3
Appellant does not raise any First Amendment challenges to Section
3124.2(a.2)(1).
-6-
J-A18016-15
Assembly: to prohibit sexual contact between correctional staff
and inmates. It is sufficiently definite that ordinary people can
understand what conduct is prohibited, and is not so vague that
men of common intelligence must necessarily guess at its
meaning and differ as to its application. The statute provides
reasonable standards for correctional personnel to gauge their
conduct—namely, sexual contact with inmates is forbidden.
Whatever latent ambiguities may lurk in the terms “inmate” or
“employee” are not implicated here. [The a]ppellee was a county
corrections officer; she was unquestionably an “employee” of a
county correctional facility. The persons with whom she
allegedly had sexual contact were indisputably “inmates” at that
facility. [The a]ppellee’s alleged conduct is precisely what the
General Assembly intended to proscribe when it enacted §
3124.2, which is not unconstitutionally vague.
Id. at 422-23 (some internal quotations marks and citations omitted).
Section 3124.2(a.2) at issue sub judice provides in part:
(1) Except as provided in sections 3121, 3122.1, 3123, 3124.1
and 3125, a person who is a volunteer or an employee of a
school or any other person who has direct contact with a student
at a school commits a felony of the third degree when he
engages in sexual intercourse, deviate sexual intercourse or
indecent contact with a student of the school.
(2) As used in this subsection, the following terms shall have the
meanings given to them in this paragraph:
(i) “Direct contact.” Care, supervision, guidance or
control.
(ii) “Employee.”
(A) Includes:
(I) A teacher, a supervisor, a supervising
principal, a principal, an assistant principal, a
vice principal, a director of vocational
education, a dental hygienist, a visiting
teacher, a home and school visitor, a school
counselor, a child nutrition program specialist,
a school librarian, a school secretary the
selection of whom is on the basis of merit as
determined by eligibility lists, a school nurse, a
substitute teacher, a janitor, a cafeteria
worker, a bus driver, a teacher aide and any
other employee who has direct contact with
school students.
18 Pa.C.S.A. § 3124.2(a.2) (emphasis added).
-7-
J-A18016-15
With the foregoing principles in mind, and based on our review of
Section 3124.2(a.2)(1), we conclude that, as in Mayfield, Appellant’s
constitutional vagueness challenge also is devoid of merit. Specifically,
Appellant’s argument that the term “he” as used in Section 3124.2(a.2)(1)
does not apply to women is spurious. As the Commonwealth aptly points
out, Section 1902 of the Statutory Construction Act explicitly provides that
“[w]ords used in the masculine gender shall include the feminine and
neuter.” 1 Pa.C.S.A. § 1902; see also Commonwealth v. Vagnoni, 416
A.2d 99, 100 (Pa. Super. 1979) (holding that “the word ‘he’ shall refer to
women as well as men as does the word “person”).
Moreover, as in Mayfield, instantly the statute’s plain language
reveals that the legislature intended to prohibit sexual contact between
school employees and students. Section 3124.2(a.2)(1), therefore, is
sufficiently definite that ordinary people can understand what conduct is
prohibited, and is not so vague that men and women of common intelligence
must necessarily guess at its meaning and differ as to its application. See
Mayfield, supra. It is undisputed here that Appellant was employed as a
teacher aide by the school district and the victim was a student in the same
school district. As an employee of the school district, Appellant should have
appreciated Section 3124.2(a.2)(1)’s reasonable standards barring sexual
contact with students. Accordingly, we conclude that Section 3124.2(a.2)(1)
is not vague under the Due Process Clause of the Fourteenth Amendment.
-8-
J-A18016-15
Appellant next argues that Section 3124.2(a.2)(1) is overbroad in
violation of the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. In particular, Appellant argues that Section
3124.2(a.2)(1) “punishes a substantial amount of protected conduct” to the
extent it bars two consenting adults from engaging in sexual contact. We
again disagree.
In Mayfield, our Supreme Court outlined the standards governing an
overbreadth challenge:
A statute is overbroad if by its reach it punishes a substantial
amount of constitutionally-protected conduct. If the overbreadth
of the statute is substantial, judged in relation to its legitimate
sweep, it may not be enforced against anyone until it is
narrowed to reach only unprotected activity. The function of
overbreadth adjudication, however, attenuates as the prohibited
behavior moves from pure speech towards conduct, where the
conduct falls within the scope of otherwise valid criminal laws
that reflect legitimate state interests.
Mayfield, 832 A.2d at 425 (citation omitted). The overbreadth challenge in
Mayfield involved Section 3124.2 pertaining to corrections officers. The
Court principally relied on the then-recent United States Supreme Court
decision in Lawrence v. Texas, 539 U.S. 558 (2003), in finding the statute
constitutional. The Court reasoned:
While Lawrence clearly establishes a due process right of
consenting adults to engage in private sexual conduct free from
governmental interference, the United States Supreme Court
was careful to qualify the reach of its holding: “The present case
does not involve minors. It does not involve persons who
might be injured or coerced or who are situated in
relationships where consent might not easily be refused.
It does not involve public conduct or prostitution.” Sexual
contact between correctional staff and inmates is obviously rife
with the possibility of coercion, both subtle and overt, given the
extensive power guards exercise over inmates. Furthermore,
public correctional institutions can in no way be likened to that
-9-
J-A18016-15
“most private of places, the home.” Lawrence, at [567]. While
the state interest in regulating private consensual sex between
adults is low, in the setting of a correctional institution the
calculus of interests is fundamentally different.
In such a setting, the state interest in maintaining institutional
order and discipline is high, and the interest of the individual is
necessarily limited. The United States Supreme Court noted this
essential difference in Pell v. Procunier, 417 U.S. 817, 94 S.Ct.
2800, 41 L.Ed.2d 495 (1974):
We have recognized, however, that the relationship
of state prisoners and the state officers who
supervise their confinement is far more intimate than
that of a State and a private citizen, and that the
internal problems of state prisons involve issues . . .
peculiarly within state authority and expertise.
Id., at 825–26, 94 S.Ct. 2800 (quotation marks omitted). The
Commonwealth has an undeniable interest in ensuring the
“relationship of state prisoners and the state officers who
supervise their confinement,” id., as well as institutional order
and discipline, is not undermined by sexual contact, consensual
or otherwise. Therefore, we conclude § 3124.2 does not “punish
[] a substantial amount of constitutionally-protected conduct.”
Rather, the statute regulates “conduct [that] falls within the
scope of otherwise valid criminal laws that reflect legitimate
state interests.” Section 3124.2 is not unconstitutionally
overbroad
Mayfield, 832 A.2d at 425 (some internal citations omitted) (emphasis
added).
Applying the foregoing principles, we reach the same conclusion as the
Court in Mayfield, because Section 3124.2(a.2)(1) does not punish a
substantial amount of constitutionally-protected conduct by its terms that
bar school employees from having sexual contact with students. In a school
setting, it is safe to assume that sexual contact between school employees,
including teacher aides, and students “is rife with the possibility of coercion,
both subtle and overt,” given the extensive power school employees exercise
over students. Mayfield, supra. In fact, it is entirely plausible that school
- 10 -
J-A18016-15
employees may exploit their position vis-à-vis students for personal benefits,
including sex. As the trial court observed:
Section 3124.2 directly targets this sort of inexorable power
disparity between students and school employees. The victim’s
age does not make the relationship less coercive. Indeed, the
victims in Mayfield may have been significantly older than age
eighteen—it is an irrelevant consideration.
Trial Court Opinion, 2/11/15, at 7. Accordingly, consistent with Mayfield,
we conclude that Section 3124.2(a.2)(1) regulates conduct that falls within
the scope of otherwise valid criminal laws that reflect legitimate state
interests. See Mayfield, supra. Section 3124.2(a.2)(1), therefore, is not
unconstitutionally overbroad. Id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2015
- 11 -