Com. v. Moore, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LANCE MOORE :
:
Appellant : No. 390 MDA 2021
Appeal from the PCRA Order Entered March 5, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000805-2017
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: DECEMBER 30, 2021
Appellant, Lance Moore, appeals from the order entered on March 5,
2021, which dismissed his petition filed under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The Commonwealth accused Appellant of sexually assaulting his
81-year-old mother, A.M. (“the Victim”). At the time of the January 13, 2017
sexual assault, Appellant was 45 years old and was living with the Victim. N.T.
Trial, 7/10/18, at 86.
During Appellant’s jury trial, the Victim testified that, on the night of
January 13, 2017, she was sitting in her living room chair when Appellant
approached her with “a tube of blue and white lubricant” in his hand. N.T.
Trial, 7/10/18, at 86 and 91. She testified:
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* Retired Senior Judge assigned to the Superior Court.
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He took the blanket that I was sitting on around me and he
pulled that and . . . he just pulled me right down to the floor
and pulled me across to where this far end is, and then he
proceeded to sexually assault me.
...
I told him he didn't want to do this. And I begged and I
pleaded with him. I was scheduled for surgery in seven days,
and I hadn't been good. And I asked him not to – please not
to do it. But he wouldn't listen to me.
Id. at 92.
She testified that Appellant pulled off her underwear and “proceeded to
have his way with me . . . sexually.” Id. at 93 (some capitalization omitted).
Specifically, the Victim testified that Appellant touched her groin and her
vagina with his penis. She also testified: “when I was on my stomach, I think
he tried to penetrate my anus. I’m not sure, but I think he did. But I don’t
believe he was successful.” Id. at 96.
The Victim testified that, the next morning:
I wrestled with how on earth I was going to get out of that
house. I couldn’t stay in that house. I had – I’m
handicapped. I had no way to get out. So [Appellant] knew
I was scheduled for surgery. He knew I was having awful
trouble and I had terrible pain. And he knew I was scheduled
for that coming Friday.
And so I prayed about this and I thought I got to get out of
here. So I called up to him and I said, [Appellant], I need
help. I said I'm having so much pain I can't wait until Friday.
I've got to get out of here, and I said would you please see
that I got to the hospital?
Well, this wasn't an easy thing for him to do as far as
transportation. And so . . . he said he'd call an ambulance for
me and I said please. So he did call the ambulance for me.
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...
So I wrote a note for the ambulance driver, . . . [saying] I
have been sexually assaulted by [Appellant], my son. Help
me, please . . . and I stuck it in my . . . coat pocket.
And they came with the ambulance and they loaded me in.
And when I got settled, I reached over – I was face to face
with the young gentleman, and I reached over and I handed
him this note. And he said – he read it and he looked amazed.
And he took ahold of my arm and he said nobody else is going
to hurt you. We'll get you help.
Id. at 98-99 and 101.
The Victim was subjected to a forensic examination at the hospital.
During the examination, the Victim told the forensic nurse:
[Appellant] pulled my legs up and apart so he could penetrate
me. . . . [H]e didn’t go in all the way, he tried to but I yelled
out and . . . he stopped when he heard me yell, and he rubbed
himself on me.
...
Afterwards, I felt it running down my leg. He tried to go in
my rectum, but I begged him. I said[, Appellant,] I’m not
that kind of person and he didn’t.
Id. at 133-134.
The jury found Appellant guilty of indecent assault and criminal attempt
to commit involuntary deviate sexual intercourse (“IDSI”).1, 2 On October 2,
2018, the trial court sentenced Appellant to serve a term of 21 to 42 months
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1 18 Pa.C.S.A. §§ 3126(a)(2) and 901(a), respectively.
2The jury found Appellant not guilty of rape, sexual assault, and incest. N.T.
Trial, 7/11/18, at 265.
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in prison for his indecent assault conviction and to serve a consecutive term
of 102 to 204 months in prison for his criminal attempt to commit IDSI
conviction, for an aggregate term of 123 to 246 months in prison. N.T.
Sentencing, 10/2/18, at 48-49. We affirmed Appellant’s judgment of sentence
on May 19, 2020. Commonwealth v. Moore, 237 A.3d 463 (Pa. Super.
2020) (unpublished memorandum) at 1-20.
Appellant filed a timely, pro se, PCRA petition on July 6, 2020. The PCRA
court appointed counsel to represent Appellant during the proceedings and
counsel filed an amended petition on Appellant’s behalf. Within the amended
petition, Appellant claimed that his sentence is illegal because “the sentences
for his convictions of indecent assault and attempted [IDSI] were not
merged.” Amended PCRA Petition, 11/17/20, at 1 (some capitalization
omitted).
On January 28, 2021, the PCRA court provided Appellant notice that it
intended to dismiss his petition in 20 days, without holding a hearing. PCRA
Court Notice, 1/28/21, at 1; see also Pa.R.Crim.P. 907(1). The PCRA court
finally dismissed Appellant’s petition on March 4, 2021 and Appellant filed a
timely notice of appeal. Appellant raises one claim on appeal:
Was [Appellant’s] sentence, which failed to merge for
sentencing purposes [Appellant’s convictions for indecent
assault and attempted IDSI,] illegal in light of
Commonwealth v. Tighe, [184 A.3d 560 (Pa. Super.
2018)], which states that proof of [IDSI] necessarily proves
indecent assault? And therefore the convictions merge for
sentencing purposes?
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Appellant’s Brief at 4.
“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is “[t]he imposition of a sentence greater than the
lawful maximum.” 42 Pa.C.S.A. § 9543(1)(vii); see also 42 Pa.C.S.A. § 9542
(declaring that the PCRA “provides for an action by which persons convicted
of crimes they did not commit and persons serving illegal sentences may
obtain collateral relief”).
“Whether Appellant's convictions merge for sentencing is a question
implicating the legality of Appellant's sentence. Consequently, our standard
of review is de novo and the scope of our review is plenary.” Commonwealth
v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).
Pennsylvania's merger doctrine is codified at 42 Pa.C.S.A. § 9765. This
statute provides:
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
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sentencing purposes, the court may sentence the defendant
only on the higher graded offense.
42 Pa.C.S.A. § 9765.
As our Supreme Court has explained, the “mandate of [Section 9765] 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.” Baldwin,
985 A.2d at 833.
Appellant was convicted of indecent assault and criminal attempt to
commit IDSI. As is relevant here, indecent assault is defined as:
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:
...
(2) the person does so by forcible compulsion.
18 Pa.C.S.A. § 3126(a)(2). The Crimes Code defines “indecent contact” as:
“[a]ny 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.A.
§ 3101.
Appellant was also convicted of attempted IDSI. In relevant part, IDSI
is defined as:
A person commits a felony of the first degree when the
person engages in deviate sexual intercourse with a
complainant:
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(1) by forcible compulsion.
18 Pa.C.S.A. § 3123(a)(1). “Deviate sexual intercourse” is defined, inter alia,
as “[s]exual intercourse per os or per anus between human beings.” 18
Pa.C.S.A. § 3101. Further, Section 901(a) of the Crimes Code declares: “[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).
As Appellant correctly observes, in Commonwealth v. Tighe, 184 A.3d
560 (Pa. Super. 2018), this Court held that Defendant Tighe’s conviction for
indecent assault merged with his conviction for IDSI. See Appellant’s Brief at
13; Tighe, 184 A.3d at 585. In Tighe, Defendant Tighe was convicted of a
number of crimes, including rape, IDSI, and indecent assault. The crimes
occurred when the defendant “inserted his penis into [the minor victim’s]
mouth and vagina,” in an “incident [that] lasted about [five] minutes.” Tighe,
184 A.3d at 564. Defendant Tighe raised a number of claims on appeal,
including a claim that his sentence was illegal, as his indecent assault
conviction merged with his rape conviction. See id. at 565.
The Commonwealth agreed that Defendant Tighe’s indecent assault
conviction “probably” merged with his rape conviction for sentencing
purposes. See id. at 583, quoting Commonwealth’s Brief in Tighe, at 59.
Regarding the merger doctrine’s “single criminal act” requirement, the
Commonwealth’s appellate brief in Tighe declared:
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In the present case, [Defendant Tighe] was charged with and
convicted of rape (by threat of force) when he "vaginally
penetrated the victim." (See Information, 12-CR-1297). He
was charged with and convicted of indecent assault (person
less than 16 years of age) when he "did have sexual
intercourse with the victim." Id. It appears, therefore, that
[Defendant Tighe] was found guilty of rape and indecent
assault based upon "a single physical act." Furthermore, the
act of rape involves engaging in sexual intercourse with a
victim (18 Pa.C.S. § 3121(a)), while the act of indecent
assault involves having indecent contact with the victim, or
causing the person to have indecent contact with the
perpetrator, for the purpose of arousing sexual desire in one
of them (18 Pa.C.S. § 3126(a)). The act of having sexual
intercourse appears to satisfy the elements of both.
Therefore, [Defendant Tighe] is probably correct that the
crimes should have merged for sentencing purposes.
Commonwealth’s Brief in Tighe, at 58-59 (some capitalization omitted).
Further, on this claim, the trial court in Tighe “concede[d] error and
acknowledge[d] that [Defendant Tighe’s] sentence on the indecent assault
count should have merged with the rape count because the Commonwealth
alleged the same underlying criminal activity for both the indecent assault and
the rape counts.” See Trial Court Opinion, 4/10/17, at 40.
On appeal, this Court held that Defendant Tighe waived his claim that
his indecent assault conviction merged with his rape conviction. Specifically,
this Court explained:
The trial court opined that [indecent assault and rape] merge
due to the fact that “the act upon which indecent assault is
predicated has already been taken into account by the rape
or involuntary sexual assault and merges.” Trial Court
Opinion, 4/10/17, at 40. As to that facet of the merger
analysis, we agree. See Commonwealth v. Lomax, 8 A.3d
1264 (Pa. Super. 2010) (engaging in vaginal intercourse with
child met requirement of sexual intercourse for rape of a child
as well as “indecent contact” for indecent assault). However,
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the trial court's inquiry was incomplete, as that analysis only
accounted for whether “the crimes arise from a single
criminal act.” 42 Pa.C.S. § 9765. [Defendant Tighe] did not
address whether the second requirement, that “all of the
statutory elements of one offense are included in the
statutory elements of the other offense,” was met.
Therefore, we conclude that [Defendant Tighe’s] argument is
waived.
Tighe, 184 A.3d at 584 (corrections omitted).
Nevertheless, this Court sua sponte raised the issue of whether
Defendant Tighe’s indecent assault conviction merged with his IDSI
conviction. We examined the statutes and held that the crimes merged for
sentencing purposes because “proof of involuntary deviate sexual intercourse
with a person under [16 years of age] necessarily proved indecent assault of
a person under [16].” Id. at 585.
In the current appeal, Appellant argues that Tighe is controlling and
necessitates that his indecent assault conviction merge with his attempted
IDSI conviction for sentencing purposes. As to the merger doctrine’s “single
criminal act” requirement, Appellant admits that his own “convict[ions for]
criminal attempt – IDSI and indecent assault [were] based on [his] attempts
to penetrate two (2) different orifices during the same incident of sexual
assault.” Appellant’s Brief at 20. Nevertheless, Appellant declares that, in
Tighe, the general factual recitation declared that Defendant Tighe had
“inserted his penis into [the minor victim’s] mouth and vagina.” Tighe, 184
A.3d at 563; Appellant’s Brief at 12. According to Appellant, since the Tighe
Court held that the IDSI and indecent assault convictions merged, the Tighe
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Court must have held that the merger doctrine’s “single criminal act”
requirement is satisfied where a defendant commits “two (2) different acts of
penetration in the same assault.” Appellant’s Brief at 20.
At the outset, we reject Appellant’s interpretation of Tighe. After the
Tighe Court sua sponte raised the issue of whether the indecent assault and
IDSI convictions merged for sentencing purposes, the Tighe Court merely
held that merger was required because “all of the statutory elements of
[indecent assault] are included in the statutory elements of [IDSI].” See
Tighe, 184 A.3d at 585. Importantly, the Tighe Court did not engage in any
meaningful analysis as to whether Defendant Tighe’s indecent assault and
IDSI convictions arose from a “single criminal act.” See 42 Pa.C.S.A. § 9765
(“No crimes shall merge for sentencing purposes unless the crimes arise from
a single criminal act . . .”). Certainly, to the extent the Tighe Court referenced
the merger doctrine’s statutory requirement that the crimes arise from a
“single criminal act,” the Court apparently relied upon its earlier analysis and
conclusion that a single act of vaginal penetration was the predicate for
both the rape and indecent assault convictions. See Tighe, 184 A.3d at
584-585. The Court simply did not independently analyze whether Defendant
Tighe’s indecent assault and IDSI convictions arose from a “single criminal
act.” See id.
Thus, and contrary to Appellant’s claim on appeal, the Tighe Court
never held that “two (2) different acts of penetration in the same sexual
assault” constitute a “single criminal act” for merger purposes. See
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Appellant’s Brief at 20. There was simply no discussion on the subject – and
Appellant’s attempt to extrapolate Tighe’s general facts to his desired
outcome thus fails.
Further, under our precedent, it is clear that Appellant committed two
“distinct criminal acts” when he touched the Victim’s vagina with his penis and
then attempted to anally penetrate her. As we have explained:
Our Courts have long held that where a defendant commits
multiple distinct criminal acts, concepts of merger do not
apply. . . . 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.
Th[e] 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, 911-912 (Pa. Super. 2012)
(citations and some quotation marks omitted). Additionally, in
Commonwealth v. Jenkins, 96 A.3d 1055, 1062 (Pa. Super. 2014), this
Court held that, to “determine whether [the defendant’s] actions . . .
constitute[] a ‘single criminal act,’” we must refer to the “elements of the
crime[s] as charged by the Commonwealth” in the information. See Jenkins,
96 A.3d at 1060.
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In the case at bar, Appellant touched the Victim’s vagina with his penis
– thus committing the crime of indecent assault.3 Appellant then attempted
to penetrate the victim’s anus with his penis – thus committing the crime of
attempted IDSI.4 These “multiple criminal acts” went “beyond that which
[were] necessary to establish the bare elements of” each individual crime and,
therefore, Appellant was properly sentenced for both indecent assault and
attempted IDSI. Appellant’s claim on appeal thus fails. See also
Commonwealth v. Ousley, 21 A.3d 1238, 1243 (Pa. Super. 2011) (“[T]he
evidence does not support [the appellant's] contention that there was a single
act that formed the basis for these charges, that is, a single blow to the head.
The record reflects that the victim was struck in the head with a firearm being
____________________________________________
3The Commonwealth’s information charged Appellant with indecent assault
by claiming:
[Appellant] had indecent contact with [the Victim] or caused [the
Victim] to have indecent contact with [Appellant] by forcible
compulsion.
Amended Information, 7/9/18, at 1.
4 The Commonwealth’s information charged Appellant with attempted IDSI by
claiming:
[Appellant] committed an attempt when, with intent to commit
the crime of [IDSI] by forcible compulsion, [Appellant] did the act
of attempting to penetrate [the Victim] anally with his penis,
which constituted a substantial step toward the commission of the
aforesaid crime.
Amended Information, 7/9/18, at 2 (some capitalization omitted).
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carried by [the appellant] that resulted in a bleeding head wound. This was
clearly an attempt to cause serious bodily injury. In addition, the evidence
reflects that [the appellant], while brandishing the firearm and after striking
her on the head, forced her into an office, demanded to know where the
company safe was and threatened to shoot her if she did not tell him the truth.
This was not a single act that formed the basis for both charges”); Jenkins,
96 A.3d at 1062 (“Jenkins' crimes were the result of multiple criminal acts.
The information filed by the Commonwealth enumerates that the element of
simple assault . . . was fulfilled when the Defendants punched Caracillo, and
knocked him to the ground. . . . The charge of robbery against Jenkins also
contains a description of this initial assault. . . . However, the
Commonwealth's description of the conduct forming the basis of the robbery
charge against Jenkins also included the Defendants' conduct in restraining
Caracillo on the ground. Caracillo's testimony indicates that the Defendants
restrained him by holding a foot to his head in a manner that exacerbated his
existent facial injuries. This additional physical restraint caused Caracillo
substantial pain. These events would establish the ‘bodily injury’ element of
robbery, even in the absence of the facts that established Jenkins' conviction
for simple assault. By including the restraint of Caracillo in its description of
robbery, the Commonwealth established that Jenkins committed multiple
criminal acts beyond the ‘bare’ standard”) (citations and footnote omitted);
see also Pettersen, 49 A.3d at 912 (“[a]ppellant is not entitled to a volume
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discount for [his] crimes simply because he managed to accomplish all the
acts within a relatively short period of time”).
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2021
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