Com. v. Renninger, C.

J-E02006-21
2022 PA Super 2COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHAD AARON RENNINGER :
:
: No. 1294 WDA 2019
Appeal from the Judgment of Sentence Entered July 10, 2019
In the Court of Common Pleas of Clarion County Criminal Division at
No(s): CP-16-CR-0000222-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,
J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
OPINION BY OLSON, J.: FILED: January 3, 2022
Appellant, Chad Aaron Renninger, appeals from the July 10, 2019
judgment of sentence that imposed an aggregate sentence of 24 to 120
months’ incarceration after a jury convicted Appellant of two counts of
indecent assault of a child less than 13 years of age, 18 Pa.C.S.A.
§ 3126(a)(7). Appellant claims the trial court erred in denying his motions to
quash the information, to transfer the case to the juvenile division, to sever
cases, to compel discovery, and to dismiss pursuant to the infancy defense.
He also argues the trial court abused its discretion in imposing its sentence
and that it imposed an illegal sentence. We affirm Appellant’s convictions but
vacate his judgment of sentence and remand for re-sentencing.
On October 31, 2017, Appellant was charged with rape, aggravated
indecent assault of a child, sexual assault, statutory sexual assault,
aggravated indecent assault, and indecent assault - child less than 13 years
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of age as to K.R.G.1 a minor, and with indecent assault - child less than 13
years of age as to C.A.B., a minor.2 See Criminal Complaint, 10/31/17, at
2-6. The criminal complaint alleged the offenses occurred “on or about”
January 1, 1997, through June 30, 2001, and listed Appellant’s birthday as
February 1984, which meant Appellant was between 13 years old and 17 years
old at the time of the offenses. Id. at 1. The affidavit of probable
cause – which was attached to the criminal complaint filed against
Appellant - stated:
[K.R.G.] disclosed acts of sexual assault that occurred against her
by [Appellant] over a four-year span[, beginning] when [K.R.G.]
was 8 years of age and conclud[ing] when [K.R.G.] was 12 years
old. These acts included [Appellant] sticking his hands inside
[K.R.G.’s] panties and touching her vaginal area, [Appellant]
sticking his hands up [K.R.G.’s] shirt and touching her chest, and
[Appellant] placing [K.R.G.’s] hands down his pants to have her
touch his penis. When [K.R.G.] was 12 years old and [Appellant]
was 17 years of age, [K.R.G.] was held against a wall of a
second-story bathroom while [Appellant] forcefully inserted his
penis into her vagina.
[C.A.B.] disclosed acts of indecent assault against her by
[Appellant. C.A.B. stated these events occurred when she was
climbing] into a pool at [Appellant’s] residence. [C.A.B.] related
she slipped from the ladder[,] and [Appellant] caught her by her
hips. [C.A.B.] related [Appellant] then placed his hands on her
vagina, over her bathing suit. [C.A.B.] was 7 years of age when
this incident occurred while [Appellant] was 16 years old.
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1 The criminal complaint identified one of the minor victims as both “K.A.G.”
and, at times, as “K.R.G.” See Criminal Complaint, 10/31/17. A review of
the record demonstrates that the correct initials for the minor victim are
“K.R.G.”
218 Pa.C.S.A. §§ 3121(a)(6), 3125(b), 3124.1, 3122.1(a), 3125(a)(7), and
3126(a)(7), respectively.
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Id. at Affidavit of Probable Cause.
On May 17, 2018, the Commonwealth filed an amended information
charging Appellant with the following offenses against K.R.G.: rape – child
less than 13 years of age (one count), sexual assault (one count), statutory
sexual assault (one count), aggravated indecent assault – child less than 13
years of age (two counts), and indecent assault – child less than 13 years of
age (five counts).3 See Amended Information, 5/17/18, at 1-2. The amended
information also charged Appellant with one count of indecent assault – child
less than 13 years of age involving C.A.B.4 Id. at 2. The amended information
stated that the incidents occurred “on or about” January 1, 1997. Id. at 1-2.
The amended information, however, listed K.R.G.’s age as 12 years old for
certain crimes and, for others, stated that the incidents happened “on
numerous occasions” when K.R.G. was “under the age of 13[ years old.]” Id.
Appellant subsequently filed a motion for a bill of particulars, which the
trial court granted on June 15, 2018. See Appellant’s Motion for Bill of
Particulars, 6/8/18; see also Trial Court Order, 6/15/18. On June 25, 2018,
the Commonwealth filed a bill of particulars alleging that the charges of rape,
sexual assault, statutory sexual assault, and aggravated indecent assault (2
counts), as well as one indecent assault charge, “occurred in May or June of
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3 18 Pa.C.S.A. §§ 3121(a)(6), 3124.1, 3122.1, 3125(a)(7), and 3126(a)(7),
respectively.
4 18 Pa.C.S.A. § 3126(a)(7).
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2001,” in the second-floor bathroom of a specific address in Knox,
Pennsylvania. See Commonwealth’s Bill of Particulars, 6/25/18, at ¶¶1-5,
¶10. The bill of particulars further asserted that, at the time of the
forementioned incidents, K.R.G. was 12 years old and Appellant was 17 years
old. Id. The bill of particulars alleged that the remaining four indecent assault
charges involving K.R.G. occurred between June 22, 1997, and June 22, 2002,
when K.R.G. was between 8 years old and 12 years old. Id. at ¶¶6-9. These
four indecent assault incidents occurred in an upstairs bedroom or upstairs
bathroom of the same residence in Knox, Pennsylvania. Id.
The bill of particulars alleged that the conduct underlying the indecent
assault charge against C.A.B. occurred at the Knox, Pennsylvania residence
“during the warm weather months of 2000[,] when [C.A.B.] was 7 years old
and [Appellant] was 16 years old.” Id. at ¶11.
On August 2, 2018, Appellant filed an omnibus pre-trial motion and
notice of infancy defense that included, inter alia, a motion to quash the
information and dismiss the prosecution because the date of the incidents
alleged in the information (on or about January 1, 1997) did not comport with
the dates alleged in the bill of particulars. See Appellant’s Omnibus Pre-Trial
Motion, 8/2/18, at ¶¶11-18. Appellant further argued that the dates in the
information and the bill of particulars were impermissibly vague and indefinite;
some of the counts charged were barred by the statute of limitations; the
delay in prosecution was unreasonable, unduly prejudicial, and violative of
Appellant’s constitutional right to due process; the incidents asserted in the
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information did not occur on the dates alleged; and the delay in prosecution
deprived Appellant of the right to be treated as a juvenile. Id. at ¶¶19-46.
The omnibus pre-trial motion also included a motion to transfer the case to
the juvenile division of the court of common pleas, a motion to sever the
cases, and a notice of infancy defense.5 On August 7, 2018, the trial court
denied a motion to compel discovery on the ground it was premature and
scheduled a hearing on the motion to quash the information and dismiss the
prosecution, the motion to transfer the case to the juvenile division, the
motion to sever cases, the notice of infancy defense, and the motion to appoint
an expert witness. The trial court deferred a decision on the petition for writ
of habeas corpus until after deciding the motion to quash the information and
dismiss the prosecution.6 See Trial Court Order, 8/7/18, at ¶¶1-4.
After entertaining argument on Appellant’s omnibus pre-trial motion,
the trial court, on October 29, 2018, denied the motion to quash and dismiss
the prosecution; denied the motion to transfer the case to the juvenile
division; ordered that an additional hearing be scheduled on the motion to
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5 The omnibus pre-trial motion further included a petition for writ of habeas
corpus, a motion for the appointment of an expert witness, and a motion to
compel discovery. Appellant’s Omnibus Pre-Trial Motion, 8/2/18, at ¶¶56-83.
6 In its August 7, 2018 order, the trial court ordered Appellant to file a brief in
support of his motion to quash the information and dismiss the prosecution,
the motion to transfer the case to the juvenile division, the motion to sever
the cases, and the notice of infancy defense, which Appellant complied with
on August 27, 2018. The Commonwealth filed a response brief on September
7, 2018.
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sever the cases; and held that “[i]f [Appellant] was under [the] age of 14
[years old] at the time of the alleged offenses, he may be able to raise the
common law defense of infancy[, h]owever, the [i]information should not be
quashed for that reason.” See Trial Court Opinion and Order, 10/29/18. On
January 9, 2019, the trial court denied Appellant’s motion to sever the cases,
which he originally included within his omnibus pre-trial motion. See Trial
Court Opinion and Order, 1/9/19.
On May 24, 2019, Appellant filed a consolidated pre-trial motion that
included, inter alia, a motion to compel discovery of K.R.G.’s military discharge
records. Appellant’s Consolidated Pre-trial Motion, 5/24/19, at 26-46. The
trial court ordered the Commonwealth to ask K.R.G. to produce information
regarding her military discharge and, upon receipt, to provide such
information to Appellant’s counsel. Trial Court Order, 5/28/19, at ¶2. The
Commonwealth contacted K.R.G., who indicated she would not provide a copy
of the forms related to her discharge, as her discharge was not connected to
the allegations made against Appellant. See Commonwealth Letter, 5/28/19.
The trial court subsequently denied the motion to compel. Trial Court Order,
5/29/19.
On May 29, 2019, a jury convicted Appellant of two counts of indecent
assault – child less than 13 years of age for his conduct relating to K.R.G. See
Verdict Slip, 5/30/19; see also N.T., 5/29/19, at 144-145. As for the
remaining charges involving Appellant’s conduct toward K.R.G., the jury found
Appellant not guilty of rape – child less than 13 years of age (1 count),
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aggravated indecent assault – child less than 13 years of age (2 counts),
sexual assault (1 count), statutory sexual assault (1 count), and indecent
assault – child less than 13 years of age (4 counts). See Verdict Slip,
5/30/19; see also N.T., 5/29/19, at 144-145. The jury also found Appellant
not guilty of indecent assault – child less than 13 years of age (1 count) as to
C.A.B. See Verdict Slip, 5/30/19; see also N.T., 5/29/19, at 144-145.
On July 10, 2019, the trial court sentenced Appellant to two consecutive
terms of 12 to 60 months’ imprisonment for the indecent assault – child less
than 13 years of age convictions. See Sentence Order, 7/23/19; see also
N.T., 7/10/19, at 11-12 This appeal follows.7
Appellant raises the following issues for our review:
1. Whether the trial court committed reversible error by
denying [Appellant’s] motion to quash the
information?
2. Whether the trial court committed reversible error by
denying [Appellant’s] motion to transfer [his] case to
[the] juvenile division?
3. Whether the trial court committed reversible error by
denying [Appellant’s] motion to sever [the] cases?
4. Whether the trial court committed reversible error by
denying [Appellant’s] motion to compel discovery?
5. Whether the trial court committed reversible error by
denying [Appellant’s] motion to dismiss pursuant to
the infancy defense?
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7 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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6. Whether the [trial] court improperly aggravated
[Appellant’s] sentence without giving aggravating
factors?
7. Whether the sentence is illegal as consecutive?
Appellant’s Brief at 5-6 (extraneous capitalization omitted).
In his first issue, Appellant argues that the trial court erred in denying
his motion to quash the information and dismiss the prosecution with
prejudice based on various arguments related to alleged imprecision in the
dates of the offenses. Id. at 24-48.
“The decision to grant[, or deny,] a motion to quash a criminal
information or indictment is within the sound discretion of the trial [court] and
will be reversed on appeal only where there has been a clear abuse of
discretion.” Commonwealth v. Wyland, 987 A.2d 802, 804 (Pa. Super.
2010) (citation and original quotation marks omitted), appeal denied, 8 A.3d
346 (Pa. 2010).
Appellant first argues that the Commonwealth failed to articulate the
dates of the offenses with sufficient specificity and that the dates in the bill of
particulars were impermissibly vague and indefinite. Appellant’s Brief at
29-36. Appellant relies on Commonwealth v. Devlin, 333 A.2d 888 (Pa.
1975), and asserts that, as in Devlin, “[t]he Commonwealth’s failure to fix
the dates of the alleged commission of the offenses, with any reasonable
certainty, deprive[d] [Appellant] of the ability to establish an alibi defense,
and otherwise deprive[d Appellant] of any reasonable ability to defend himself
from the charges.” Appellant’s Brief at 29.
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Appellant further argues that the dates in the information do not
conform with the dates alleged in the bill of particulars. Id. He claims the
Commonwealth is required to prove the allegations contained in the
information at trial and, as part of that burden, must prove the commission
date of the alleged offenses. Id. at 30. According to Appellant, the dates of
commission alleged in the bill of particulars differed so substantially from
those found in the information that the only course of action was to quash the
information and dismiss the charges with prejudice. Id.Appellant further claims the dates in the information and bill of
particulars are impermissibly vague and indefinite. Id. at 31-36. He argues
that he is entitled to fair notice by the information as to what he must defend
against, and the Commonwealth must prove the information beyond a
reasonable doubt. Id. at 32. He claims, “[t]he [i]nformation in this case fails
to do so[,] and the dates of the alleged offenses are best described as moving
targets.” Id. He asserts that he was “deprived of any reasonable ability to
identify an alibi defense or to otherwise mount a reasonable defense to the
charges” and that “the prejudice caused by the vagueness in the [b]ill of
[p]articulars is further compounded by the fact that the allegations are
between 15 and 20 years old, and both the alleged victims and [Appellant]
were young children at the time.” Id. at 32, 35.
In denying the motion to quash, the trial court relied on cases from this
Court in which we stated that a variance from the date specified in the
information “is not fatal unless it could mislead the defendant at trial, impairs
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a substantial right[,] or involves an element of surprise that would prejudice
the defendant’s efforts to prepare his defense.” Trial Court Opinion, 10/29/18,
at 3, citing Commonwealth v. Einhorn, 911 A.2d 960, 977-978 (Pa. Super.
2006), appeal denied, 920 A.2d 831 (Pa. 2007) and Commonwealth v.
Morrison, 118 A.2d 258, 260 (Pa. Super. 1955). The trial court noted that
the Commonwealth acknowledged “that the date stated in the [i]nformation
[was] not accurate” and that it “provided more specific dates and time frames
of the alleged offenses in [the b]ill of particulars” and “provided an additional
explanation of the times of the alleged offenses in [its] brief [in response to
Appellant’s omnibus pre-trial motion].” Trial Court Opinion, 10/29/18, at 3.
The trial court found that the Commonwealth did not intend to prove at trial
that the crimes occurred on the dates specified in the information, nor was
the Commonwealth required to do so. Id. The trial court, in addressing
Appellant’s claim that the dates in both the information and bill of particulars
were vague and indefinite, held that “[n]either the adequacy nor competency
of the Commonwealth’s evidence can be tested by a motion to quash.” Id. at
4, citing Commonwealth v. Kane, 188 A.3d 1217, 1227 (Pa. Super. 2018),
appeal denied, 197 A.3d 1180 (Pa. 2018).
In Devlin, supra, our Supreme Court held that due process requires
the Commonwealth to fix the date of the commission of the offense with
reasonable certainty. Devlin, 333 A.2d at 890. There, the Commonwealth
charged the defendant with one count of sodomy of an intellectually disabled
individual, where the assault could have occurred at any time during a
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fourteen-month period. Id. at 889. The Devlin Court concluded that this
broad period in which the assault could have occurred violated the defendant’s
due process rights because it substantially denied him an opportunity to
present a defense, including, inter alia, an alibi defense, and to attack the
victim’s credibility. Id. at 891. Our Supreme Court, however, noted that:
[t]he pattern of due process is picked out in the facts and
circumstances of each case. Due process is not reducible to
a mathematical formula. Therefore, we cannot enunciate
the exact degree of specificity in the proof of the date of a
crime which will be required or the amount of latitude which
will be acceptable. Certainly[,] the Commonwealth need not
always prove a single specific date of the crime. Any leeway
permissible would vary with the nature of the crime and the
age and condition of the victim, balanced against the rights
of the accused.
Id. at 892 (citations, quotation marks, and footnote omitted). Following
Devlin, this Court held that “the Commonwealth must be allowed a
reasonable measure of flexibility when faced with the special difficulties
involved in ascertaining the date of an assault upon a young child.”
Commonwealth v. Luktisch, 680 A.2d 877, 880 (Pa. Super. 1996), quoting
Commonwealth v. Groff, 548 A.2d 1237, 1241 (Pa. Super. 1988). Further,
the Commonwealth “must be afforded broad latitude when attempting to fix
the date of offenses which involve a continuous course of criminal conduct.”
Commonwealth v. Benner, 147 A.3d 915, 921 (Pa. Super. 2016). “[T]he
due process concerns of Devlin are satisfied where the victim [] can at least
fix the times when an ongoing course of [abuse] commenced and when it
ceased.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa. Super.
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2007), appeal denied, 944 A.2d 756 (Pa. 2008); see also Benner, 147 A.3d
at 921.
Although the Commonwealth must “fix the date when an alleged offense
occurred with reasonable certainty[,]” the Commonwealth “does not always
need to prove a single specific date of an alleged crime.” Einhorn, 911 A.2d
at 977-978 (citations omitted). Rather, “[p]ermissible leeway varies with the
nature of the crime and the age and condition of the victim balanced against
the rights of the accused.” Id. at 978. “[I]ndictments must be read in a
common sense manner and are not to be construed in an overly technical
sense.” Id. “The purpose of the indictment is to provide the accused with
sufficient notice to prepare a defense.” Id. “A variance is not fatal unless it
could mislead the defendant at trial, impairs a substantial right[,] or involves
an element of surprise that would prejudice the defendant’s efforts to prepare
his defense.” Id.Here, we discern no abuse of discretion in the denial of Appellant’s
motion to quash on grounds that the dates alleged in the information do not
comport with the dates found in the bill of particulars or that the dates alleged
were vague and indefinite. Although the information listed a broad date range
in which the alleged incidents occurred, from 1997 through 2001, the criminal
complaint provided the ages of the victims and Appellant at the time of the
crimes, and the bill of particulars narrowed the date range even further. At
trial, the dates were not vague, and it was not error to allow the
Commonwealth to attempt to prove the crimes at trial.
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Appellant next argues that the statute of limitations barred the
prosecution of at least two offenses, sexual assault and statutory sexual
assault, involving K.R.G. Appellant’s Brief at 37-43. Appellant concedes that
he was acquitted of these two offenses, but argues that the “charges in and
of themselves were prejudicial to [Appellant] and may have caused the jury
to convict on lesser charges.” Id. at 43.
Appellant contends that, in 1997, the applicable limitations period, as
set forth in then-42 Pa.C.S.A. § 5552, required a criminal prosecution for,
inter alia, statutory sexual assault and sexual assault, to be commenced within
five years of the offense.8 Id. at 42. He further claims that the applicable
statute of limitations was amended in 2002,9 to require prosecution to
commence within 12 years of the offense and amended again in 2006,10 to
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8 Then-Section 5552 of the Pennsylvania Judicial Code stated that a
prosecution for statutory sexual assault (18 Pa.C.S.A. § 3122.1) or sexual
assault (18 Pa.C.S.A. § 3124.1) must be commenced within five years after
the offense is committed. 18 Pa.C.S.A. § 5552(b)(1) (effective May 28, 1996,
to December 19, 2000).
9 42 Pa.C.S.A. § 5552(c)(3) provided an exception to the limitations period for
prosecution of, inter alia, statutory sexual assault (18 Pa.C.S.A. § 3122.1) or
sexual assault (18 Pa.C.S.A. § 3124.1) when the offense was committed
against a minor who was less than 18 years of age that permitted prosecution
for these offenses “any time up to the period of limitation provided by law
after the minor has reached 18 years of age.” 42 Pa.C.S.A. § 5552(c)(3)
(effective August 27, 2002, to November 29, 2004).
10 42 Pa.C.S.A. § 5552(c)(3) provided an exception to the limitations period
for prosecution of, inter alia, statutory sexual assault (18 Pa.C.S.A. § 3122.1)
or sexual assault (18 Pa.C.S.A. § 3124.1) when the offense was committed
against a minor who was less than 18 years of age that permitted prosecution
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permit prosecution for certain crimes against a minor to commence up to the
later of the period set by the statute of limitations after the minor has reached
18 years of age or the date the minor reaches 50 years of age. Id. at 40-41.
He claims that his statutory sexual assault and sexual assault charges carried
a five-year limitations period for prosecution under the statute in effect in
1997, and asserts that because prosecution for these two crimes was not
commenced by January 1, 2002, the claims are barred.
The trial court, in denying Appellant’s motion to quash, concluded that
the statute of limitations did not bar prosecution. Trial Court Opinion,
10/29/18, at 5. The trial court noted that although the information listed all
the offenses as occurring “on or about[ January 1, 1997,]” the criminal
complaint and the bill of particulars identified the crimes of, inter alia,
statutory sexual assault and sexual assault as occurring sometime during the
period of May 2001, through June 2001. Id. The trial court reasoned that
“the Commonwealth may be able to prove a date of commission of the
underlying offense that is different than the 1997 date stated in the
[i]nformation” and, therefore, “[t]he statute of limitations may not have
expired as of the filing of October 30, 2017[,] when the Commonwealth filed
the [criminal c]omplaint.” Id.
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for these offenses “any time up to the later of the period of limitation provided
by law after the minor has reached 18 years of age or the date the minor
reaches 50 years of age.” 42 Pa.C.S.A. § 5552(c)(3) (effective January 29,
2007, to December 15, 2008).
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Even assuming the acquittals did not render this issue moot, it still does
not merit relief. Appellant makes no argument that the statute of limitations
expired by the time of trial if the crimes occurred in May 2001, or June 2001,
which is the date range listed in the criminal complaint and the bill of
particulars and the date range the Commonwealth proved at trial. If the
offenses occurred in May 2001, or June 2001, the then-effective statute of
limitations did not expire until five years after the date of the offense. See
18 Pa.C.S.A. § 5552(b)(1) (effective December 20, 2000, to January 21,
2002) (requiring the prosecution of statutory sexual assault and sexual assault
to commence within five years of the date the offense was committed). As
such, the 2002 and 2006 amendments to Section 5552, as cited by Appellant
and discussed supra, extended the limitations period beyond the original
five-year period because the original limitations period had not yet expired at
the time the amendment became effective. See Commonwealth v.
Spanier, 192 A.3d 141, 148 (Pa. Super. 2018) (stating that, when the
existing statute of limitations had not yet expired at the time of its
amendment, the amended statute of limitations applied to the prosecution),
appeal denied, 203 A.3d 1999 (Pa. 2019). Therefore, the trial court did not
abuse its discretion or err in denying Appellant’s motion to quash on this
ground.
Appellant next argues that the delay in the prosecution of the case
deprived him of his right to due process. Appellant’s Brief at 43-45, 48.
Appellant maintains that the information was filed more than 21 years after
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the offenses were allegedly committed, that is, January 1, 1997, and the
“inordinate delay work[ed] an unreasonable prejudice to [Appellant] and
unreasonably undermine[d] [Appellant’s] ability to mount a reasonable
defense to the charges.” Id. at 44. He argues that “[i]n spite of controlling
precedent, the applicable statute of limitations is unconstitutional, as
[Appellant] was unjustly deprived of [Appellant’s] right of due process
afforded to him and protected by the Fourteenth Amendment of the United
States Constitution and Article I, Section 9 of the Pennsylvania Constitution[.]”
Id. He further argues the delay in prosecution resulted in a denial of his
constitutional rights because, if the charges had been brought at the time of
the alleged offenses, Appellant was between the ages of 13 years old and 17
years old and would have been treated as a juvenile offender. Id. at 48.
In denying Appellant’s motion to quash on these grounds, the trial court
concluded that “[t]here is no legal precedent which supports [Appellant’s]
position[.]” Trial Court Opinion, 10/29/18, at 6; see also id. at 7 (stating,
“[t]here is no case law which indicates that [Appellant’s] constitutional rights
have been violated”). Upon review, we discern no error of law or abuse of
discretion in the trial court’s order denying Appellant’s motion to quash on
these grounds. Appellant provides no case law to support his claim of a due
process violation.11 See Appellant’s Brief at 43-45, 48.
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11We recognize that this Court in Commonwealth v. Armolt, 248 A.3d 504(Pa. Super. 2021) denied Armolt’s claim that the trial court erred in permitting
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Appellant also argues that the Commonwealth charged him with
violating statutes, and provisions of statutes, that were not in effect on the
date of the offenses alleged in the information, which, in turn, violated the Ex
Post Facto Clause of the United States Constitution.12 Id. at 45-47. Appellant
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the Commonwealth to charge him as an adult for sexual offenses he
committed when he was a juvenile and that our Supreme Court recently
granted Armolt’s petition for allowance of appeal of that decision. Armolt,
2021 WL 240523 (Pa. Super. Filed January 25, 2021) (unpublished
memorandum), appeal granted, 2021 WL 5353274 (Pa. Filed November 17,
2021) (slip copy). Briefly, in November 2019, when Armolt was forty-five
years old, he was prosecuted for sexual offenses that the victim initially
reported in 1996 when Armolt was a juvenile. Armolt, 2021 WL 240523, at
*1, *3. This Court held that Armolt was not entitled to the statutory
protections afforded by the Juvenile Act because he did not qualify as a “child”
under the Pennsylvania Juvenile Act, 42 Pa.C.S.A. §§ 6301-6375, and that his
due process rights were not violated because Armolt did not present evidence
of an improper motivation for the delay in prosecution on the part of the
Commonwealth. Id. at *4.
Here, the case sub judice is factually distinct from Armolt, supra, because
the victims reported the offenses in February 2017 (K.R.G.) and April 2017
(C.A.B.) and Appellant was charged on October 31, 2017. See Criminal
Complaint, 10/31/17. As such, there was no delay in the prosecution on the
part of the Commonwealth that supports a violation of due process.
12 The Ex Post Facto Clause of the United States Constitution prohibits states
from, inter alia, “pass[ing] any Bill of Attainder, ex post facto law, or law
impairing the Obligations of Contracts[.]” U.S. Const. Art. I, Sect. 10. Our
Supreme Court in Commonwealth v. Rose, 127 A.3d 794 (Pa. 2015)
explained that the “phrase ‘ex post facto law’ was a term of art with an
established meaning at the time of the framing” of the United States
Constitution and the ex post facto prohibition forbid states from, inter alia,
enacting “any law which imposes a punishment for an act which was not
punishable at the time it was committed; or imposes additional punishment
to that then prescribed.” Rose, 127 A.3d at 798 (citations and original
quotation marks omitted).
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argues he was charged with six counts of indecent assault – child less than 13
years of age, 18 Pa.C.S.A. § 3126(a)(7), which included terms that did not
exist at the time the offenses occurred, as alleged in the information. Id. at
47.
In 1997, and in 2001, the then-effective Section 3126 of the
Pennsylvania Crimes Code defined the offense of “indecent assault” as
occurring, inter alia, when “[a] person [] has indecent contact with the
complainant or causes the complainant to have indecent contact with the
person [and] the complainant is less than 13 years of age[.]” 18 Pa.C.S.A.
§ 3126(a)(7) (effective May 30, 1995, to January 22, 2006). Effective January
23, 2006, Section 3126, as amended, defined “indecent assault” as occurring,
inter alia, when “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
[] the complainant is less than 13 years of age[.]” 18 Pa.C.S.A. § 3126(a)(7)
(effective January 23, 2006 to present).13
The trial court concluded that there was no ex post facto violation,
explaining that the information “averred facts which constitute indecent
____________________________________________
13 “Indecent contact” is defined 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.
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contact, none of which involve causing the alleged victim to come into contact
with seminal fluid, urine[,] or feces for the purpose of arousing sexual desire
in [Appellant.]” Trial Court Opinion, 10/29/18, at 7.14
Upon review, we concur with the trial court that the information avers
Appellant had indecent contact with the victim in ways that did not
intentionally cause the complainant to come into contact with seminal fluid,
urine, or feces for the purpose of arousing sexual desire in Appellant or the
victim. In particular, the information alleged that “[Appellant] did unzip his
pants and had [K.R.G.] touch his penis[, Appellant] did touch [K.R.G.’s]
vagina[, Appellant] did place his hand up [K.R.G.’s] shirt and touched her
breasts[, Appellant] did place his hands down [K.R.G.’s] pants and touched
____________________________________________
14 Before the trial court, Appellant also claimed that the crimes of rape and
aggravated assault of a child under the age of 13 did not exist at the time the
alleged offenses occurred. He does not present an argument on this claim in
his brief, and, therefore, waived the claim. See Commonwealth v.
Beshore, 916 A.2d 1128, 1140 (Pa. Super 2007) (stating, “[t]he failure to
develop an adequate argument in an appellate brief may result in waiver of
the claim under Pa.R.A.P. 2119” (original brackets, original quotation marks,
and citation omitted)), appeal denied, 982 A.2d 509 (Pa. 2007).
Further, we agree with the trial court that no ex post facto violation exists.
The trial court noted that the crime of rape of a victim less than 13 years old
did exist in 1997, and in 2001, but was defined under a different section.
Compare 18 Pa.C.S.A. § 3126(a)(6) (effective February 17, 1998, to
February 6, 2003) with 18 Pa.C.S.A. § 3121(c) (effective February 14, 2003
to current). The trial court further noted that Appellant referenced the
incorrect aggravated assault subsection – 18 Pa.C.S.A § 3125(b). Appellant
was charged with violating 18 Pa.C.S.A. § 3125(a)(7), which did exist in
1997, and in 2001. See 18 Pa.C.S.A. § 3125(a)(7) (effective May 30, 1995,
to February 6, 2003).
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her vagina[, Appellant] did engage in sexual intercourse with [K.R.G., and
Appellant] did have indecent contact with [C.A.B.] by touching her vaginal
area over her swimming suit.” Amended Information, 5/17/18, at Counts
6-11. The allegations contained in the information conformed with the
requirements of then-effective Section 3126 sufficient to charge Appellant
with indecent assault of a person less than 13 years of age. As such, we
discern no abuse of discretion or error of law in the trial court’s order denying
Appellant’s motion to quash on this ground.
In summation, for the reasons set forth supra, we discern no error of
law or abuse of discretion in the trial court’s order denying Appellant’s motion
to quash the information and dismiss the charges with prejudice. As such,
Appellant’s first issue is without merit.
In his second issue, Appellant claims the trial court erred in denying his
motion to transfer the case to the juvenile division of the court of common
pleas pursuant to the Pennsylvania Juvenile Act, 42 Pa.C.S.A. §§ 6301-6375.
Appellant’s Brief at 49-50. Appellant asserts that he “was deprived of equal
treatment enjoyed by other juveniles and deprived of the benefits of the
juvenile system” in violation of his due process rights under the Fourteenth
Amendment of the United States Constitution and Article I, Sections 9 and 26
of the Pennsylvania Constitution. Id. at 49 (asserting that, “[n]o case found
by [counsel for Appellant] comes remotely close to the prejudicial nature of
the case at hand”).
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A challenge concerning the application of a statute, such as the Juvenile
Act, presents a question of law for which our standard of review is de novo
and our scope of review plenary. Commonwealth v. McGarry, 172 A.3d 60,
68 (Pa. Super. 2017), appeal denied, 185 A.3d 966 (Pa. 2017); see also
Commonwealth v. Monaco, 869 A.2d 1026, 1029 (Pa. Super. 2005)
(stating, “[t]he right to be treated as a juvenile offender is statutory rather
than constitutional”), appeal denied, 880 A.2d 1238 (Pa. 2005).
The Juvenile Act affords protections to a child, as defined by the statute,
and, as such, the Juvenile Act expressly limits its jurisdiction to proceedings
involving a child, notwithstanding his or her age at the time the offense
occurred. 42 Pa.C.S.A. § 6303. Section 6302 of the Juvenile Act defines a
“child,” inter alia, as “[a]n individual who [] is under the age of 21 years who
committed an act of delinquency before reaching the age of 18 years[.]”15 42
Pa.C.S.A. § 6302. It is well-established that, absent proof of an improper
motivation for a delay in prosecution, a defendant who committed a crime as
a child, but was not charged until after achieving the age of 21 years, can be
tried as an adult in the criminal court and cannot benefit from the protections
afforded by the Juvenile Act. Monaco, 869 A.2d at 1029-1030 (holding that,
the applicability of the Juvenile Act is based upon the defendant’s age at the
____________________________________________
15 Section 6302 defines “delinquent act” as, inter alia, “an act designated a
crime under the law of [the] Commonwealth [of Pennsylvania.]” 42 Pa.C.S.A.
§ 6302.
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time of arrest), relying on Commonwealth v. Anderson, 630 A.2d 47(Pa. Super. 1993), appeal denied, 637 A.2d 277 (Pa. 1993).
Here, the trial court, relying on Monaco, supra, held that Appellant
“was not entitled to have his case transferred to juvenile court,
notwithstanding [the] fact that [the] offenses at issue had allegedly been
committed when [he] was under 18 years of age.” Trial Court Opinion,
10/29/18, at 7.
A review of the criminal complaint demonstrates that, at the time the
criminal proceedings against Appellant began, Appellant was 33 years old.
Criminal Complaint, 10/30/17. As such, the juvenile court lacked jurisdiction,
even though the alleged offenses occurred when Appellant was under the age
of 18 years old. See Monaco, 869 A.2d at 1029-1030; see also 42 Pa.C.S.A.
§ 6303. Therefore, Appellant was not entitled to a transfer of his case to the
juvenile division of the court of common pleas. Consequently, Appellant’s
issue is without merit.
In his third issue, Appellant argues that the trial court erred in denying
his motion to sever the charge related to C.A.B. from the charges related to
K.R.G. Appellant’s Brief at 50-55. Appellant claims that “the Commonwealth
failed to allege a common act, plan, or scheme, or that the offenses were the
result of the same act or transaction.” Id. at 50. He claims the evidence of
the alleged crimes against C.A.B. would not have been admissible in a trial for
the crimes alleged against K.R.G., and vice versa. Id. at 52. He further
argues he was prejudiced by the joint trial because the evidence would
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improperly bolster the credibility of the complainants, and the evidence would
have the tendency to establish bad character evidence. Id. at 53.
We review an order denying a motion for severance for an abuse of
discretion, and we will not disturb the decision absent a showing of a manifest
abuse of discretion. Commonwealth v. Collins, 703 A.2d 418, 422 (Pa.
1997), cert. denied, 525 U.S. 1015 (1998).
Pennsylvania Rule of Criminal Procedure 563 governs the joinder of
offenses in an information and provides, in pertinent part, as follows:
(A) Two or more offenses, of any grade, may be charged in
the same information if:
(1) the evidence of each of the offenses would be
admissible in a separate trial for the other and is
capable of separation by the jury so that there is
no danger of confusion[.]
Pa.R.Crim.P. 563(A)(1); see also Pa.R.Crim.P. 582(A)(1)(a) (stating,
“[o]ffenses charged in separate indictments or informations may be tried
together if [] the evidence of each of the offenses would be admissible in a
separate trial for the other and is capable of separation by the jury so that
there is no danger of confusion”).
When offenses are not based on the same act or transaction, courts
apply the following test to determine whether joinder is proper:
[W]hether the evidence of each of the offenses would be
admissible in a separate trial for the other; whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries
are in the affirmative, whether the defendant will be unduly
prejudiced by the consolidation of offenses.
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Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005), appeal
denied, 989 A.2d 917 (Pa. 2010).
Evidence of other crimes or bad acts is not admissible to prove that the
defendant acted “in conformity with those acts or to demonstrate a criminal
propensity.” Commonwealth v. Brown, 52 A.3d 320, 325 (Pa. Super.
2012); see also Pa.R.E. 404(b)(1) (stating that, “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person's character in order to
show that on a particular occasion the person acted in accordance with the
character”). Evidence of other crimes or bad acts may, however, be admitted
for other purposes, including, inter alia, “to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence of mistake or accident.”
Brown, 52 A.3d at 325; see also Pa.R.E. 404(b)(2) (stating that, evidence
of a crime, wrong, or other act “may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident”). In a criminal case, however,
evidence of other crimes or bad acts “is admissible only if the probative value
of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.
404(b)(2).
Here, the trial court found that the evidence of the crimes against K.R.G.
would be admissible as evidence of absence of mistake or accident in a trial
on the charge of the crime against C.A.B. Trial Court Opinion, 1/9/19, at 3.
The trial court explained,
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[Appellant] may raise a defense that he accidentally touched
[C.A.B.] while playing in the pool and she misinterpreted the
contact because it involved touching over a bathing suit and she
was seven years old at the time. Evidence that he exhibited
similar behavior against another victim could demonstrate that he
was aware of his actions and intended to assault C.A.B.
Id. The trial court further noted that the counts involved a similar timeframe
and similar conduct, and evidence that one victim was assaulted may be
admissible as evidence the other was assaulted, due to a common plan or
scheme. Id., relying on Commonwealth v. Aikens, 990 A.2d 1181, 1185
(Pa. Super. 2010). The trial court further noted the jury would be “able to
distinguish evidence for each offense easily” because the various offenses
“occurred at different locations and with two different victims.” Id. at 4. The
trial court concluded that Appellant would not be prejudiced based upon
distinct, yet interrelated, evidence of the alleged assaults. Id. The trial court
explained,
[T]his case involve[d] two complainants who were children at the
time of the alleged assaults[,] and they were alleging sexual
assaults by [Appellant] over a five[-]year period. The assault
against one victim may be evidence that [Appellant] had a motive
or common plan of sexually assaulting minors for his own sexual
gratification and[,] thus, evidence in support of the other victim’s
allegations.
Id. The trial court found that the evidence would not be presented “solely to
show that [Appellant] had a propensity to participate in criminal activity or
prove his bad character.” Id.Upon review, we discern no abuse of discretion or error of law in the
trial court order denying Appellant’s motion to sever. The evidence as to each
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victim would have been admissible in a trial as to the other victim as evidence
of absence of mistake and of common plan or scheme. See Brown, 52 A.3d
at 325; see also Pa.R.E. 404(b)(2). Further, the admission of the evidence
would not confuse the jury because the evidence involved different incidents
on different days and different victims. Finally, we concur with the trial court
that Appellant would not be unduly prejudiced by the evidence because it
demonstrated the absence of mistake and a common plan or scheme. See
Collins, 703 A.2d at 423 (stating, “the admission of relevant evidence
connecting a defendant to the crimes charged is a natural consequence of a
criminal trial, and it is not grounds for severance by itself”). Consequently,
Appellant’s third issue is without merit.
Next, Appellant claims the trial court erred in denying his motion to
compel the disclosure of K.R.G.’s military records, including paperwork related
to her discharge. Appellant’s Brief at 55-58. Appellant asserts that he was
prejudiced by this ruling because he was “denied the opportunity to present
evidence to the jury as to [K.R.G.’s] real reason for early discharge from the
military.” Id. at 57. Appellant claims the information related to K.R.G.’s
military discharge is relevant because, if she were less than honorably
discharged, as Appellant believes she was, it would have undermined her
credibility. Id. at 55. He claims that, contrary to the trial court finding, the
discharge information “was within the Commonwealth’s ready and reasonable
ability to obtain or request.” Id. at 57.
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“[D]ecisions involving discovery in criminal cases lie within the
discretion of the trial court [and the trial] court's ruling will not be reversed
absent abuse of that discretion.” Commonwealth v. Smith, 955 A.2d 391,
394 (Pa. Super. 2008) (en banc). Pennsylvania Rule of Criminal Procedure
573 requires the Commonwealth to disclose, inter alia, “[a]ny evidence
favorable to the accused that is material either to guilt or to punishment, and
is within the possession or control of the attorney for the
Commonwealth of Pennsylvania.” Pa.R.Crim.P. 573(B)(1)(a) (emphasis
added). In addition to requiring that the evidence be material, Rule 573 also
requires that the evidence must be in the Commonwealth’s possession or
control. A trial court does not have the power to order the disclosure of
materials that are explicitly directed to be kept confidential, i.e., subject to a
privilege. Commonwealth v. Segarra, 228 A.3d 943, 959 (Pa. Super.
2020), appeal denied, 237 A.3d 975 (Pa. 2020).
A review of the record demonstrates that after Appellant filed a motion
to compel discovery of K.R.G.’s military record, the trial court found the
Commonwealth did not have possession of the record, but ordered that the
Commonwealth ask K.R.G. to voluntarily produce the military discharge
paperwork. See Trial Court Order, 5/28/19, at ¶2; see also Appellant’s
Consolidated Pre-Trial Motions, 5/24/19, at ¶¶26-46. The Commonwealth
complied with the order, asking K.R.G. to provide a copy of her military
records, but K.R.G. refused to disclose the information, stating that “none of
this information is connected or related in any way to the allegation she has
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made against [Appellant].” See Commonwealth Letter, 5/28/19. The trial
court subsequently denied Appellant’s motion to compel disclosure of K.R.G.’s
military records. Trial Court Order, 5/29/19. We discern no abuse of
discretion in the trial court’s order denying Appellant’s motion to compel
discovery of K.R.G.’s military record, and Appellant has not cited any law to
the contrary.16 Furthermore, his argument is based on speculation, as he has
not asserted that the discharge was, in fact, less than honorable, or otherwise
relevant. Therefore, Appellant’s issue is without merit.
In his fifth issue, Appellant claims the trial court erred in failing to
dismiss all charges pursuant to the infancy defense. Appellant’s Brief at
58-62. He contends that, at the time of the alleged offenses, he would have
been 12 years old and, under Pennsylvania case law, a child between the ages
of 7 years old and 14 years old is presumed to be incapable of committing a
crime, but the presumption can be rebutted if the Commonwealth shows the
defendant possessed criminal capacity. Id., citing Commonwealth v. Martz,
118 A.3d 1175 (Pa. Super. 2015). He asserts that because the
Commonwealth did not present relevant evidence, before trial, of Appellant’s
capacity at the time of the alleged offenses, all charges should have been
dismissed. Appellant’s Brief at 60.
The common law defense of infancy provides the following:
____________________________________________
16The Privacy Act of 1974, 5 U.S.C.A. § 552(a), as amended, protects or limits
access to, inter alia, military records.
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In Pennsylvania we have followed the common-law rule in
measuring the capacity of a child to commit a crime. A child
under the age of 7 years [or age] is conclusively presumed
incapable of the commission of a crime; a child between the
ages of 7 [years old] and 14 years [old] is likewise presumed
incapable of committing a crime but such presumption is
subject to refutation by evidence that the child does possess
the criminal capacity; a child over the age of 14 years [old]
is prima facie capable of the commission of a crime.
Martz, 118 A.3d at 1180, quoting Commonwealth v. Green, 151 A.2d 241,
246 (Pa. 1959). “Capacity, in terms of the infancy defense, refers, not to the
ability to formulate mens rea, but to the ability to appreciate the criminality
and wrongfulness of one's acts.” Martz, 118 A.3d at 1183 (citation and
ellipsis omitted). “[T]he common law defense of infancy remains applicable
in criminal proceedings where a defendant is being prosecuted for conduct
committed before the age of fourteen.” Id. at 1181.
In denying Appellant’s motion to dismiss all charges based upon the
common law defense of infancy, the trial court concluded that, “if [Appellant]
was under [the age of] 14 [years old] at the time of the alleged offenses, he
may be able to raise the common law defense of infancy. However, the
information should not be quashed for that reason.” Trial Court Opinion,
10/29/18, at 8 (citation omitted).
A review of the record demonstrates that in his omnibus pre-trial
motion, Appellant provided notice to the Commonwealth of his “intention to
raise the infancy defense at trial” but did not explicitly request the trial court
to dismiss the charges based upon the common law defense of infancy.
Appellant’s Omnibus Pre-Trial Motion, 8/2/18, at 84-88 (stating, “[w]herefore,
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in order to preserve the right to do so at trial, [Appellant] hereby places the
Commonwealth on notice of the intent to raise the infancy defense at trial, in
the event that this prosecution is not dismissed”). We discern no error of law
or abuse of discretion in the trial court’s conclusion that Appellant retained the
right to raise the rebuttable presumption of the infancy defense. See Trial
Court Opinion, 10/29/18, at 8. Counts 6 through 9 of the bill of particulars
aver that the alleged offenses occurred between June 22, 1997, and June 22,
2002. See Bill of Particulars, 6/25/18, at ¶¶6-19. Based upon Appellant’s
birth date, if some, or all, of the offenses detailed in Counts 6 through 9
occurred between June 1997, and February 1998, then Appellant would have
been under the age of 14 years old and entitled to raise the rebuttable
presumption of the infancy defense. See Martz, 118 A.3d at 1180. We
concur with the trial court that providing notice of the intention to raise the
common defense of infancy, under the circumstances of the case sub judice,
does not require dismissal of all the charges. Therefore, Appellant’s issue is
without merit.
In his sixth issue, Appellant raises a challenge to his sentence, arguing
that the trial court “failed to put reasons on the record for sentencing
[Appellant] in the aggravated range” of the sentencing guidelines. Appellant’s
Brief at 62-64.
Appellant’s claim challenges the discretionary aspects of his sentence.
See Commonwealth v. Beatty, 227 A.3d 1277, 1287 (Pa. Super. 2020)
(stating that, an assertion that the trial court failed to state its reasons for
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imposing a sentence outside the sentencing guidelines raises a challenge to
the discretionary aspects of the sentence). Before this Court can address the
merits of such a challenge, however, we must determine whether the
appellant invoked this Court’s jurisdiction by satisfying a four-part test. Id.
at 1286.
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 1286-1287, citing Commonwealth v. Moury, 992 A.2d 162(Pa. Super. 2010).
Here, a review of the record demonstrates that Appellant did not
preserve this discretionary sentencing challenge at the July 10, 2019
sentencing hearing or in a post-sentence motion and, as such, has waived this
claim. See Commonwealth v. Bullock, 948 A.2d 818, 826 (Pa. Super.
2008) (finding waiver of a challenge to the trial court’s alleged failure to state
reasons for the sentence on the record where the appellant failed to raise the
issue at sentencing or in a post-sentence motion, thereby, providing the trial
court an opportunity to reconsider or modify the sentence); see also N.T.,
7/10/19, 4-12.
In his final issue, Appellant asserts that his sentence was illegal because
the sentence should run concurrently to the sentence Appellant was currently
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serving.17 Appellant’s Brief at 64-66; see also Appellant’s Supplemental Brief
at 2-5. Appellant argues that, at the time of sentencing, the trial court failed
to indicate that the newly-imposed sentence was to run consecutively to the
sentence Appellant was currently serving. Appellant’s Brief at 65; see also
Appellant’s Supplemental Brief at 3; N.T., 7/10/19, at 11-12. The trial court,
Appellant contends, subsequently filed its written sentencing order on July 23,
2019, in which it added that the newly-imposed sentence would run
consecutively to any other sentence Appellant was currently serving.
Appellant’s Supplemental Brief at 4. Appellant asserts that the trial court
“wrongfully modified [his] sentence without providing notice, [pursuant to 42
Pa.C.S.A. § 5505, thereby,] depriving [Appellant] of his right to be heard on
the matter.” Appellant’s Supplemental Brief at 4-5.
Appellant’s challenge to the legality of his sentence raises a question of
law for which our standard of review is de novo, and our scope of review is
plenary. Commonwealth v. Hawkins, 45 A.3d 1125, 1130 (Pa. Super.
2012); appeal denied, 53 A.3d 756 (Pa. 2012). In fashioning a sentence of
incarceration, a trial court is to comply with, inter alia, Pennsylvania Rule of
Criminal Procedure 705, which states as follows:
Rule 705. Imposition of Sentence
____________________________________________
17Appellant asserts that he was “serving a prior state sentence [imposed in
an unrelated matter] at the time of sentencing” in the case sub judice.
Appellant’s Supplemental Brief at 4.
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(A) When imposing a sentence to imprisonment, the [trial court]
shall state the date the sentence is to commence.
(B) When more than one sentence is imposed at the same time
on a defendant, or when a sentence is imposed on a defendant
who is sentenced for another offense, the [trial court] shall state
whether the sentences shall run concurrently or consecutively. If
the sentence is to run concurrently, the sentence shall commence
from the date of imposition unless otherwise ordered by the [trial
court].
Pa.R.Crim.P. 705. Section 5505 of the Pennsylvania Judicial Code states that
“[e]xcept as otherwise provided or prescribed by law, a court upon notice to
the parties may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed.” 42 Pa.C.S.A. § 5505 (emphasis
added).
Here, the trial court, in orally setting forth its sentence at Appellant’s
sentencing hearing, stated, in pertinent part,
[O]n each of the two counts of indecent assault of a child less than
13 years of age, [Appellant] shall be incarcerated under the
supervision of the Pennsylvania Department of Corrections for a
period of not less than [12] months nor more than [60] months.
The sentences shall run consecutively for an aggregate period of
incarceration of not less than [24] months nor more than 120
months. [Appellant] is not entitled to any credit for time served.
N.T., 7/10/19, at 11 (extraneous capitalization omitted). The trial court’s
subsequent written sentencing order stated, in pertinent part,
On each of the two counts of indecent assault of a child less than
13 years of age, [Appellant] shall be incarcerated under the
supervision of the Pennsylvania Department of Corrections for a
period of not less than [12] months nor more than [60] months.
The sentences shall run consecutively for an aggregate period of
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incarceration of not less than [24] months nor more than 120
months. [Appellant] is not entitled to any credit for time served.
The sentence hereby imposed shall run consecutively with
any other sentences [Appellant] is serving.
Sentencing Order, 7/23/19 (extraneous capitalization omitted, emphasis
added).
Generally, “the text of the sentencing order, and not the statements a
trial court makes about a defendant's sentence, is determinative of the [trial]
court's sentencing intentions and the sentence imposed.” Commonwealth
v. Borrin, 80 A.3d 1219, 1226 (Pa. 2013) (stating, “the signed sentencing
order, if legal, controls over oral statements of the sentencing [court] not
incorporated into the signed judgment of sentence” (citation and original
quotation marks omitted)). This general rule, however, is not dispositive in
the case sub judice because in the instant matter the written sentencing order
included a statement that was not made by the trial court at the
sentencing hearing. At the time of sentencing, the trial court did not make
any statement regarding whether the newly-imposed sentence was to run
consecutively or concurrently to the sentence Appellant was currently serving.
The written sentencing order, however, included such a directive; stating that
the newly-imposed sentence was to run consecutively to any other sentence
Appellant was currently serving. Therefore, the trial court modified its
judgment of sentence imposed at the time of sentencing when it filed its
written sentencing order. Section 5505 of the Judicial Code permits the trial
court to modify its sentencing order but only after providing notice to the
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parties. Here, the certified record contains no such notice. As such, we are
constrained to vacate the judgment of sentence and remand this case for
re-sentencing in accordance with this opinion. The trial court is directed to
provide Appellant notice of its intent to condition his sentence imposed in the
instant matter to run consecutively to the sentence Appellant was already
serving and to permit Appellant an opportunity to be heard on the matter.
Convictions affirmed. Judgment of sentence vacated. Case remanded
for re-sentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2022
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