Com. v. Garcia, R. ( 2021 )

J-S13027-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAFAEL GARCIA :
:
Appellant : No. 1837 EDA 2020
Appeal from the Judgment of Sentence Entered August 26, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005642-2019
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED: MAY 28, 2021
Appellant, Rafael Garcia, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for attempted sexual assault and indecent assault without
consent.1 We affirm.
The trial court set forth the facts underlying Appellant’s convictions as
follows:
On Saturday, July 13, 2019, the victim, S.R., was working
as a home health care worker in the home of Francisco and
Migdalia Garcia, at 4045 N. 6th Street, Philadelphia PA. The
victim had been working with the Garcias for approximately
two and a half years, and was responsible for cleaning,
cooking meals, and taking the Garcias to their
appointments. Sometime during the victim’s employment,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 901 (section 3124.1 related); and 3126, respectively.
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the Garcias’ son, [Appellant], moved into the home.
On Saturday, July 13, 2020, the victim went upstairs to
change the Garcias’ bed linens. When the victim entered
the front bedroom of [the Garcias], [Appellant] followed her,
where he then grabbed her and told her “I knew you wanted
it.” [Appellant] then turned the victim around, threw her on
the bed, and lifted her skirt. [Appellant] took out his penis
and attempted to penetrate the victim’s vagina. [Appellant]
was unable to do so, but his penis contacted the upper
portion of her vagina. [Appellant] attempted to penetrate
the victim again, but she was able to push him away. At
that moment, Migdalia Garcia, unaware of what had
occurred, called [Appellant] downstairs. [Appellant] left the
front bedroom without saying or doing anything further to
the victim.
Afterwards, the victim went downstairs and informed [the
Garcias] about what had occurred. That day, the victim
informed her friend and co-worker, Carmen Feliciano, of
what had occurred. Feliciano urged her to report the
incident to their employer. The next day, the victim
informed her supervisor about the assault and afterwards
reported the incident to the police.
(Trial Court Opinion, filed November 19, 2020, at 2) (internal citations to the
record omitted).
On February 20, 2020, a jury convicted Appellant of attempted sexual
assault and indecent assault without consent. On August 28, 2020, the court
sentenced Appellant to 5 to 10 years’ imprisonment for attempted sexual
assault and 1 to 2 years’ imprisonment for indecent assault without consent.
Appellant’s aggregate sentence was 6 to 12 years’ imprisonment.
On September 1, 2020, Appellant timely filed a notice of appeal.
Following the court’s order, Appellant timely filed a Pa.R.A.P. 1925(b) concise
statement on October 22, 2020.
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On appeal, Appellant raises the following issue for our review:
Did not the imposition of consecutive sentences for Attempt
Sexual Assault and the lesser graded offenses of Indecent
Assault, constitute a violation of the Merger of Sentences
statute, 42 Pa.C.S.A. § 9765, and a violation of Appellant’s
state and federal constitutional rights against double
jeopardy, where both convictions were based upon proof of
the single charged act of “attempting to put his penis in her
vagina,” and where the only statutory elements of Indecent
Assault that were specified in the complaint, argued to the
jury, and covered in the trial court’s charge to the jury, were
the same as those relied upon as a basis for Appellant’s
conviction of the greater offense of Attempt Sexual Assault?
(Appellant’s Brief at 3).
Appellant argues that the court erred in failing to merge his convictions
for sentencing purposes. Appellant claims that during the assault on the
victim, he committed only a single criminal act. In support of this contention,
Appellant points to the criminal complaint, which does not mention shoving,
speaking, or pushing aside clothing, and argues that none of these acts were
offered at trial as a basis upon which the jury could convict him of indecent
assault. Appellant maintains that placing his penis upon the victim’s vagina
and attempting to penetrate her vagina constituted a seamless event that
could not be broken down into multiple events. Appellant concludes the trial
court imposed an illegal sentence, and this Court must grant relief. We
disagree.
Whether crimes merge for sentencing purposes implicates the legality
of the sentence. Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa.Super.
2013). Merger of sentences is governed generally by Section 9765 of the
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Sentencing Code, which provides:
§ 9765. Merger of sentences
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.A. § 9765. “[T]he language of the legislature is clear. The only
way two crimes merge for sentencing is if all elements of the lesser offense
are included within the greater offense.” Commonwealth v. Coppedge, 984
A.2d 562, 564 (Pa.Super. 2009) (stating cases decided before effective date
of Section 9765 are not instructive in merger analysis; relevant question in
merger analysis now is whether person can commit one crime without also
committing other crime, regardless of whether facts of particular case
comprise both crimes; if elements of crimes differ, i.e., if one offense can be
committed without committing other offense, crimes do not merge under
legislative mandate of Section 9765) (emphasis in original). Further:
When considering whether there is a single criminal act or
multiple criminal acts, the question is not whether there was
a ‘break in the chain’ of criminal activity. [The] issue is
whether the actor commits multiple criminal acts beyond
that which is necessary to establish the bare elements of the
additional crime, then the actor will be guilty of multiple
crimes which do not merge for sentencing purposes.
Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa.Super. 2012) (internal
citations and most quotation marks omitted).
The Crimes Code defines indecent assault and sexual assault, in
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pertinent part, as follows:
§ 3126. Indecent assault
(a) Offense defined.—A person is guilty of indecent
assault if the person has indecent contact with the
complainant, causes the complainant to have indecent
contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine
or feces for the purpose of arousing sexual desire in the
person or the complainant and:
(1) the person does so without the complainant’s
consent[.]
18 Pa.C.S.A. § 3126(a)(1).
§ 3124.1. Sexual assault
Except as provided in section 3121 (relating to rape) or
3123 (relating to involuntary deviate sexual intercourse), a
person commits a felony of the second degree when that
person engages in sexual intercourse or deviate sexual
intercourse with a complainant without the complainant’s
consent.
18 Pa.C.S.A. § 3124.1. “In addition to its ordinary meaning, [sexual
intercourse] includes intercourse per os or per anus, with some penetration
however slight; emission is not required.” 18 Pa.C.S.A. § 3101.
“A person commits an attempt when, with intent to commit a specific
crime, he does any act which constitutes a substantial step toward the
commission of that crime.” 18 Pa.C.S.A. § 901(a).
With regard to indecent assault:
“[W]hen an indecent assault conviction is predicated upon
an act separate from the act of forcible intercourse, the
indecent assault conviction does not merge with a conviction
for rape.” Commonwealth v. Richter, [676 A.2d 1232,
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1236 (Pa.Super. 1996)]. This rule applies regardless of
“whether the act which constitutes indecent assault is
committed immediately prior to, or concurrently with the
rape.” Id.Commonwealth v. Roane, 204 A.3d 998, 1002 (Pa.Super. 2019).
Instantly, the trial court explained:
Merger is not appropriate in this case because the elements
of the crimes are distinct. The elements of the crime of
Attempt[ed] Sexual Assault are an attempt to engage in
sexual intercourse with a complainant without the
complainant’s consent. [18] Pa.C.S. § 3124.1. Sexual
intercourse is defined as penetration, however slight. The
elements of Indecent Assault are indecent contact with a
complainant without the complainant’s consent. Indecent
contact is defined as “any touching of the sexual or other
intimate parts of the person for the purpose of arousing or
gratifying sexual desire in any person.” 18 Pa.C.S. §
3126(a)(1).
Attempt[ed] Sexual Assault requires a substantial step in
trying to penetrate another, without consent, while Indecent
Assault is the touching of the sexual body parts of another,
without consent. The statutory language makes it clear that
Indecent Assault is a broader offense than Attempt[ed]
Sexual Assault and encompasses criminal acts beyond
penetration. …
In Roane[, supra], a defendant was convicted of Indecent
Assault and Rape of a Child, after touching the victim’s
genitals and later penetrating her while she slept. [Id.] at
1001. On appeal the defendant argued that these offenses
should have merged. The Superior Court rejected his
argument finding that his offenses were two separate acts
and that indecent assault does not merge when the act is
separate from forcible intercourse. Id. at 1002. This rule
applies regardless if the act of Indecent Assault occurs prior
to, or concurrent with a rape. Id.
As in Roane, [Appellant] has been found guilty of two
distinct sexual offenses. [Appellant] approached the victim
from behind and grabbed her. He then proceeded to turn
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the victim around and [push her] onto the bed, at which
point he lifted the victim’s skirt, pushed aside her
underwear, and attempted to penetrate her vaginally. In so
doing, [Appellant’s] penis contacted the upper part of the
victim’s vagina. [Appellant] again tried to penetrate the
victim, but she was able to push [Appellant] away.
[Appellant] then proceeded to leave the room because his
mother was calling him from downstairs.
(Trial Court Opinion at 3-4).
We agree with the court’s merger analysis. Appellant’s act of placing
his penis against the top of the victim’s vagina constituted “indecent contact”
with the complainant without her consent, while his act of attempting to
forcibly penetrate her vagina with his penis constituted a substantial step
towards sexual assault—a separate act. See 18 Pa.C.S.A. §§ 3126, 3124.1,
901. Under these circumstances, the trial court did not err by imposing
separate sentences for Appellant’s convictions. See Roane, supra.Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/21
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