Com. v. Ryerse, C.

J-A08026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER ADAM RYERSE
Appellant No. 1037 MDA 2014
Appeal from the Judgment of Sentence of May 8, 2014
In the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0001366-2013
BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED MAY 08, 2015
Christopher Adam Ryerse appeals the judgment of sentence entered
on May 8, 2014. We affirm.
On the evening of April 10, 2013, Ryerse, the victim, and several
others met to socialize and drink at the Super 8 Motel in State College,
Pennsylvania. Ryerse and the victim had met a few times before that night.
At some point during the evening, the victim became ill, vomited, and
passed out in the bathroom. See Notes of Testimony (“N.T.”), 1/13/2014,
at 58-61. Her friends tried to provide assistance but she was unable to walk
or talk. Ryerse entered the bathroom and held her in his arms but she could
not respond. Id. at 63-65. The victim went in and out of consciousness,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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but later remembered brief moments of that night, including that Ryerse
removed her clothing and underwear, touched her genitalia, placed his
mouth on her breasts, and penetrated her vaginally and anally. Id. at 66-
69. She did not consent, nor could she move or speak. Id. at 70.
The next morning, the victim woke up naked and in bed with Ryerse.
She retrieved her clothes and left. Id. at 71-74. She reported the incident
to the authorities and sought medical treatment. Id. at 78. Her clothing
was tested and Ryerse’s semen was found on her underwear.
On January 13, 2014, a jury convicted [Ryerse] of one count of
Rape (18 Pa.C.S.A. § 3121(a)(3)); one count of Sexual Assault
(18 Pa.C.S.A. § 3124.1); and one count of Indecent Assault (18
Pa.C.S.A. § 3126(a)(4)). The jury found [Ryerse] not guilty of
one count of Involuntary Deviate Sexual Intercourse (18
Pa.C.S.A. § 3123(a)(3)). [Ryerse] was sentenced [to an
aggregate sentence of not less than ten nor more than twenty
years’ incarceration] on May 8, 2014. [Ryerse] filed a Post-
Sentence Motion for Modification of Sentence of May 19, 2014,
arguing th[e trial c]ourt erred in sentencing [Ryerse] on both the
Rape and Sexual Assault convictions. Th[e trial c]ourt denied
[Ryerse’s] Motion on May 23, 2014. [Ryerse] filed the instant
appeal on June 19, 2014.
Trial Court Opinion (“T.C.O.”), 8/15/2014, at 1. Pursuant to the trial court’s
order, Ryerse filed a statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b) on July 21, 2014, and the trial court issued its
Pa.R.A.P. 1925(a) opinion on August 15, 2013.
Ryerse presents two questions for our review:
1. Did the trial court err in drawing a specific conclusion as to
the intent of the jury when it found [Ryerse] guilty of a general
count of sexual assault?
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2. Due to the generality of the jury’s verdict of guilty on the
count on sexual assault, does the sentence on sexual assault
merge with the sentence on rape?
Ryerse’s Brief at 5.
We begin with Ryerse’s second issue, in which he contends that his
rape conviction and sexual assault conviction should have merged for
sentencing purposes. Id. at 5, 14-16. He requests that we vacate his
sentence as it stands. Id. at 17. We disagree.
Whether [an a]ppellant’s convictions merge for sentencing is a
question implicating the legality of [the] sentence.
Consequently, our standard of review is de novo and the scope
of our review is plenary. The best evidence of legislative intent
is the words used by the General Assembly. Further, this Court
must, whenever possible, give effect to all provisions of a
statute, 1 Pa.C.S. § 1921(a), and unless a phrase has a
technical, peculiar, or otherwise defined meaning, that phrase
must be construed according to its common and approved
usage. 1 Pa.C.S. § 1903(a). Of course, this Court presumes
that the General Assembly does not intend absurd or
unreasonable results when it enacts a statute. 1 Pa.C.S.
§ 1922(1).
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009) (case citations
and internal quotation marks omitted). Furthermore, Section 9765 of the
Judicial Code provides that:
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.
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42 Pa.C.S.A. § 9765. Thus, Section 9765 permits merger if two elements
are satisfied: (1) all of the statutory elements of one offense are included in
the other, and (2) the crimes arise from a single criminal act.
The crime of sexual assault is defined as follows: “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.
Ryerse argues that his conviction for sexual assault must merge with his
rape conviction because he was acquitted of involuntary deviate sexual
intercourse.
Ryerse was convicted of rape under subsection (a)(3), which
provides: “A person commits a felony of the first degree when the person
engages in sexual intercourse with a complainant . . . [w]ho is unconscious
or where the person knows that the complainant is unaware that the sexual
intercourse is occurring.” 18 Pa.C.S.A. § 3121(a)(3). Ryerse was acquitted
of involuntary deviate sexual intercourse, subsection (a)(3), which provides:
“A person commits a felony of the first degree when the person engages in
deviate sexual intercourse with a complainant . . . who is unconscious or
where the person knows that the complainant is unaware that the sexual
intercourse is occurring[.]” 18 Pa.C.S.A. § 3123(a)(3). “As the rape and
involuntary deviate sexual intercourse offenses at issue subsume a lack of
consent, although each requires more, and sexual intercourse is common to
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the offenses, [our Supreme Court has] conclude[d] that sexual assault
constitutes a lesser-included offense of these crimes.” Commonwealth v.
Buffington, 828 A.2d 1024, 1032 (Pa. 2003); see also 18 Pa.C.S.A.
§ 3101 (definitions).
Therefore, Ryerse maintains that, because he was acquitted of
involuntary deviate sexual intercourse and the jury did not issue a specific
verdict as to which acts informed the rape and sexual assault charges, his
sexual assault conviction must be a lesser-included offense of rape for
purposes of merging for sentencing as a matter of law. See Ryerse’s Brief
at 11-14.
Our merger jurisprudence is rooted in the protection against
double jeopardy provided by the United States and the
Pennsylvania Constitutions. See Baldwin, supra at 836; see
also U.S. Const. amend. V (“nor shall any person be subject for
the same offence to be twice put in jeopardy of life or limb”);
Pennsylvania Const. Art. 1, § 10 (“No person shall, for the same
offense, be twice put in jeopardy of life or limb”). However, our
Supreme Court has long recognized that “the same facts may
support multiple convictions and separate sentences for each
conviction except in cases where the offenses are greater and
lesser included offenses.” Commonwealth v. Anderson, 538
Pa. 574, 650 A.2d 20, 22 (Pa. 1994). The Court in Anderson
noted its continuing concern to avoid giving criminals a “volume
discount” on crime. Id.Commonwealth v. Calhoun, 52 A.3d 281, 284-85 (Pa. Super. 2012)
(footnote omitted). Furthermore, we have held that “[w]hen an acquittal on
one count in an indictment is inconsistent with a conviction on a second
count, the court looks at the acquittal as no more than the jury’s assumption
of power which they had no right to exercise, but to which they were
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disposed through lenity.” Commonwealth v. Frisbie, 889 A.2d 1271, 1273
(Pa. Super. 2005). Accordingly, in the instant case, Ryerse’s acquittal of
involuntary deviate sexual intercourse is not dispositive of whether his
sexual assault conviction is a lesser-included offense of rape.
Even if we conclude that Ryerse has satisfied the first element of
merger, that sexual assault is a lesser-included offense of rape, he has not
demonstrated the second element, that the offenses arise from a single
criminal act. See 42 Pa.C.S.A. § 9765.
“[I]n order to support the imposition of more than one sentence, it
must be found that the defendant’s conduct constituted more than one
injury to the Commonwealth.” Commonwealth v. Rhoads, 636 A.2d
1166, 1168 (Pa. Super. 1994). Here, the victim testified to multiple
instances of penetration, both vaginal and anal, that occurred while she
went in and out of consciousness and was unable to consent. N.T. at 66-70.
Therefore, the sexual assault conviction and rape conviction cannot be
conclusively determined to “arise from a single criminal act.” 42 Pa.C.S.A.
§ 9765. Cf. Commonwealth v. Lomax, 8 A.3d 1264, 1268 (Pa. Super.
2010) (holding that sentences for rape of a child and indecent assault
merged where they arose from the same, single act of penetration).
Accordingly, Ryerse’s argument that his sexual assault conviction
must merge with his rape conviction as a matter of law is contradicted by
the record, and does not merit relief. See Baldwin, 985 A.2d at 833;
Calhoun, 52 A.3d at 284-85.
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Returning to Ryerse’s first issue, he contends that the trial court erred
“in drawing a specific conclusion as to the intent of the jury when it found
[him] guilty of a general count of sexual assault.” Ryerse’s Brief at 5.
In its opinion, the trial court stated: “The jury found [Ryerse] not
guilty of Involuntary Deviate Sexual Intercourse not because they did not
believe the anal intercourse did not occur, but because the victim was not
unconscious during the act and was aware the act was occurring, although
she could not move or speak.” T.C.O. at 3.
Because the court did not err in declining to merge Ryerse’s
convictions for rape and sexual assault on more general grounds—that the
jury is entitled to render an inconsistent verdict—the trial court did not need
to infer the specific intent of the jury as to its verdict. However, we need
not address whether the trial court improperly drew a specific conclusion as
to the intent of the jury. We are not constrained by the rationale of the trial
court, and may affirm Ryerse’s judgment of sentence on any basis. See
Commonwealth v. Boyles, 104 A.3d 591, 596 (Pa. Super. 2014). Thus,
this issue does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2015
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