Com. v. Clifton, D.

J-S47004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEREK ANTHONY CLIFTON :
:
Appellant : No. 533 MDA 2019
Appeal from the Judgment of Sentence Entered December 14, 2018
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000554-2018
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 23, 2019
Appellant, Derek Anthony Clifton, appeals from the December 14, 2018
Judgment of Sentence entered in the Centre County Court of Common Pleas
following his entry of a nolo contendere plea to two counts of Indecent
Assault.1 He challenges the legality of his sentence. After careful review, we
affirm.
We glean the following factual and procedural history from the trial court
opinion and our review of the certified record. On January 22, 2018, Appellant,
an inmate at State Correctional Institution-Rockview, arrived at the laboratory
to have his blood drawn by the Victim, a phlebotomist. After the Victim drew
his blood, she turned around to place his blood sample on a counter. As her
back was turned, Appellant grabbed the Victim’s buttocks. The Victim turned
____________________________________________
1 18 Pa.C.S. § 3126(a)(1)
J-S47004-19
around and told Appellant “no” and “to get out.” Appellant then stepped closer
to the Victim and grabbed her right breast.
On November 2, 2018, Appellant entered an open nolo contendere plea
to two counts of Indecent Assault. On December 14, 2018, the trial court
sentenced Appellant to two consecutive terms of one to two years’
incarceration. Appellant filed a Post-Sentence Motion, which the trial court
denied.
This timely appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
Did the sentencing court err in concluding that the two counts of
Indecent Assault did not merge for sentencing purposes, where
both counts involved the same complainant and occurred at the
same location and on the same date apparently within instants of
each other and the Information used identical language in
describing both counts?
Appellant’s Br. at 5.
Appellant avers that his two Indecent Assault convictions should have
merged for sentencing purposes. He notes that the statutory elements of the
offenses are the same and argues that the two counts of Indecent Assault
arose from a single act because there was no break in the chain of events.
Appellant’s Br. at 14-15, 18. He asserts that both assaults occurred
“essentially instantaneously.” Id. at 22. To support his claim, Appellant relies
on our Supreme Court’s plurality decision in Commonwealth v. Gatling, 807
A.2d 890 (Pa. 2002). Specifically, he cites to the Court’s definition of “break”—
-2-
J-S47004-19
“a significant temporal lapse.” Appellant’s Br. at 15 (citing Gatling, supra at
900).
“A claim that crimes should have merged for sentencing purposes raises
a challenge to the legality of the sentence. Therefore, our standard of review
is de novo and our scope of review is plenary.” Commonwealth v.
Quintua, 56 A.3d 399, 400 (Pa. Super. 2012) (internal citation omitted).
Section 9765 of the Sentencing Code provides, in relevant part, that
“[n]o 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.” 42 Pa.C.S. § 9765.
“The statute’s mandate is clear. It 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.” Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa.
2009). Stated another way, “[s]entences are appropriate for merger when
the same facts support convictions for more than one offense, the elements
of the lesser offense are all included within the elements of the greater
offense, and the greater offense includes at least one additional element.”
Commonwealth v. Ward, 856 A.2d 1273, 1276 (Pa. Super. 2004) (citing
Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994)).
In Gatling, the Court announced the following rule regarding the first
factor:
-3-
J-S47004-19
[A]n overarching chain of events does not constitute a single
criminal act when there is a break in that chain. A break requires
both that: (1) the acts constituting commission of the first crime
were completed before the defendant began committing the
second crime; and (2) proof of the second crime did not in any
way rely on the facts necessary to prove the first crime. In
addition, the break must be either: (1) a significant temporal
lapse; or (2) where applicable, indicated by a change in
the criminal intent of the defendant at some point during the
sequence.
807 A.2d at 900.
However, a majority of the Court did not join Gatling’s discussion of
factors determining a “break in the chain”, and therefore it is not precedential.
Commonwealth v. Shank, 883 A.2d 658, 670 (Pa. Super. 2005).
Accordingly, we rely on caselaw predating Gatling to determine when crimes
arise from a single criminal act. Shank, supra at 670.
Our Supreme Court has stated, “[i]f . . . 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. Belsar, 676 A.2d
632, 634 (Pa. 1996). “[W]hen a criminal act has been committed, broken off,
and then resumed, at least two crimes have occurred and sentences may be
imposed for each. To hold that multiple assaults constitute only one crime is
to invite criminals . . . to brutalize their victims with impunity.” Id.
-4-
J-S47004-19
Here, Appellant pleaded nolo contendere to two counts of the same
crime, Indecent Assault in connection with two instances of assault.2 After our
review of the record, we agree with the trial court’s well-reasoned analysis
and conclusion that the two crimes were not a continuous singular act, but
rather two completed, separate, and distinct acts. As the trial court opined:
[In the first action, Appellant] grabbed the butt[ocks] of the
[V]ictim without her consent. That action meets all the elements
of [I]ndecent [A]ssault. [Appellant] stopped grabbing her
butt[ocks]. The [V]ictim turn around and told him “no” and “to get
out”. [Appellant] then stepped forward [and] grab[bed] the
[V]ictim’s breast. This second action also independently meets all
of the elements of an [I]ndecent [A]ssault. The two actions were
different from each other and the second assault was an additional
act to the first and not a continuous singular act.
Trial Ct. Op., dated 3/18/19, at 2.
Since Appellant completed two separate and distinct acts, and each act
meets the definition of Indecent Assault, the trial court properly refused to
apply the merger doctrine. Baldwin, supra at 833; Belsar, supra at 634.
____________________________________________
2“A person is guilty of [I]ndecent [A]ssault if the person has indecent contact
with the complainant . . . for the purpose of arousing sexual desire in the
person or the complainant and . . . the person does so without the
complainant’s consent. 18 Pa.C.S. § 3126(a)(1).
-5-
J-S47004-19
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2019
-6-