Com. v. Keller, T.

J-S01014-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TODD MICHAEL KELLER, :

:

Appellant : No. 869 MDA 2017

Appeal from the Judgment of Sentence April 27, 2017

in the Court of Common Pleas of Cumberland County,

Criminal Division at No(s): CP-21-CR-0002440-2015,

CP-21-CR-0002444-2015, CP-21-CR-0002648-2015

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 21, 2018

Todd Michael Keller (“Keller”) appeals from the judgment of sentence

imposed after a jury convicted him of two counts each of aggravated

indecent assault, indecent assault, and harassment; and one count each of

sexual assault, unlawful contact with a minor, corruption of minors, burglary,

criminal mischief, fleeing or attempting to elude a police officer, criminal

trespass, intimidation of witnesses or victims, prohibited offensive weapons,

terroristic threats, driving under the influence (“DUI”) – general impairment,

and DUI – highest rate of alcohol.1 We affirm Keller’s judgment of sentence.

However, we vacate the trial court’s Order designating Keller as a sexually

____________________________________________

1 See 18 Pa.C.S.A. §§ 3125(a)(1), 3125(a)(8), 3126(a)(1), 3126(a)(8),

2709(a)(6), 2709(a)(7), 3124.1, 6318(a)(1), 6301(a)(1)(ii), 3502(a)(2),

3304(a)(5), 3733(a), 3503(a)(1)(i), 4952(a)(1), 908(a), 2706(a)(1); 75

P.S. §§ 3802(a)(1), 3802(b).

J-S01014-18

violent predator (“SVP”) under Pennsylvania’s Sex Offender Registration and

Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10 et seq., and remand for

further proceedings.

The trial court thoroughly set forth the relevant factual history in its

Opinion, which we adopt for purposes of this appeal. See Trial Court

Opinion, 6/14/17, at 2-8. Briefly, Keller’s convictions arose from his

repeated sexual abuse of his minor stepdaughter, and his subsequent

destruction of the home in which she was residing with a machete in

retaliation for her reporting the abuse to authorities.

Following the imposition of his sentence, Keller filed a Motion for

modification, challenging the discretionary aspects of his sentence. The trial

court denied this Motion. Keller then filed a timely Notice of Appeal. In

response, the trial court ordered him to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Keller timely filed a Concise

Statement, after which the trial court issued an Opinion.

Keller now presents the following issues for our review:

I. Whether the trial court erred in denying [Keller’s] Motion to

suppress [his] statements made to police during the post-

polygraph interview and all evidence which flowed from the

same?

II. Whether the trial court erred in denying [Keller’s] Motion to

sever?

III. Whether the evidence was insufficient to sustain the verdicts

of guilt?

IV. Whether the trial court erred and abused its discretion in

imposing consecutive sentences[,] and sentences at the

-2-

J-S01014-18

very top of the standard range[,] resulting in an excessive

and unreasonable aggregate sentence[,] without taking into

consideration substantial mitigating circumstances?

V. Whether the trial court erred in failing to merge certain

convictions for sentencing purposes: indecent assault, [18

Pa.C.S.A.] § 3126(a)(1)[,] with aggravated indecent

assault, [18 Pa.C.S.A.] § 3125(a)(1); indecent assault, [18

Pa.C.S.A.] § 3126(a)(8)[,] with aggravated indecent

assault, [18 Pa.C.S.A.] § 3125(a)(8); corruption of minors

with aggravated indecent assault; and sexual assault with

aggravated indecent assault?

VI. Whether the trial court erred and abused its discretion when

it classified [Keller] as a [SVP]?

Brief for Appellant at 11-12 (capitalization omitted, issues renumbered).

We will address Keller’s first two issues together. Keller argues that

the trial court erred and abused its discretion in denying his (1) Motion to

suppress his inculpatory statements to the police; and (2) Motion to sever

his three separate cases.2 See id. at 20-34.

[O]ur standard of review in addressing a challenge to a

trial court’s denial of a suppression motion is limited to

determining whether the factual findings are supported by the

record and whether the legal conclusions drawn from those facts

are correct. We are bound by the suppression court’s factual

findings so long as they are supported by the record; our

standard of review on questions of law is de novo. Where, as

here, the defendant is appealing the ruling of the suppression

court, we may consider only the evidence of the Commonwealth

and so much of the evidence for the defense as remains

uncontradicted. Our scope of review of suppression rulings

____________________________________________

2 Keller filed both of these Motions on the first day his jury trial was

scheduled to begin. We note that Pennsylvania Rule of Criminal Procedure

579 provides, in relevant part, that generally, “the omnibus pretrial motion

for relief shall be filed and served within 30 days after arraignment, unless

opportunity therefor did not exist ….” Pa.R.Crim.P. 579(A).

-3-

J-S01014-18

includes only the suppression hearing record and excludes

evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations

omitted).

Concerning Keller’s execution of a written waiver of his Miranda3

rights during his police interview, we are mindful of the following:

A defendant may waive his Miranda rights, and agree to answer

questions or make a statement. For a waiver to be valid, it must

be knowing, voluntary, and intelligent. In other words,

the waiver must be the product of a free and deliberate choice

rather than intimidation, coercion, or deception, and must have

been made with a full awareness both of the nature of the right

being abandoned and the consequences of the decision to

abandon it. …

The test for determining the voluntariness of a confession and

the validity of a waiver looks to the totality of the circumstances

surrounding the giving of the confession. Some of the factors to

be considered include: the duration and means of interrogation;

the defendant’s physical and psychological state; the conditions

attendant to the detention; the attitude exhibited by the police

during the interrogation; and any other factors which may serve

to drain one’s powers of resistance to suggestion and coercion.

Commonwealth v. DeJesus, 787 A.2d 394, 402-03 (Pa. 2001) (citations

and quotation marks omitted).

Concerning challenges to a trial court’s denial of a motion to sever,

this Court has stated as follows:

____________________________________________

3 See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (holding that the

prosecution may not use a defendant’s statements stemming from a

custodial interrogation unless it demonstrates that he was apprised of his

right against self-incrimination and his right to counsel).

-4-

J-S01014-18

A motion for severance is addressed to the sound discretion of

the trial court, and its decision will not be disturbed absent a

manifest abuse of discretion. The critical consideration is

whether the appellant was prejudiced by the trial court’s decision

not to sever. The appellant bears the burden of establishing

such prejudice.

Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010) (citation,

ellipses and brackets omitted).

Two Pennsylvania Rules of Criminal Procedure govern severance. Rule

582 provides, in relevant part, as follows:

(A) Standards

(1) Offenses charged in separate indictments or informations

may be tried together if:

(a) 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; or

(b) the offenses charged are based on the same act or

transaction.

Pa.R.Crim.P. 582(A)(1). Relatedly, Rule 583 provides as follows: “The court

may order separate trials of offenses or defendants, or provide other

appropriate relief, if it appears that any party may be prejudiced by offenses

or defendants being tried together.” Pa.R.Crim.P. 583; see also Dozzo,

991 A.2d at 902 (stating that “[u]nder Rule 583, the prejudice the defendant

suffers due to the joinder must be greater than the general prejudice any

defendant suffers when the Commonwealth’s evidence links him to a

crime.”).

-5-

J-S01014-18

Concerning the trial court’s denial of his Motion to suppress, Keller

asserts as follows:

Viewing the totality of the circumstances, [Keller’s] waiver [of

his Miranda rights,] made after the lengthy initial [police]

interview at the time of the pre-polygraph interview by a []

Trooper[,] was not knowing, voluntary, and intelligent. All three

Troopers [who interacted with Keller] used coercive tactics,

being aware of and taking advantage of [Keller’s] emotional

weakness, strong desire to do anything to have his three young

children returned to him, and his poor state of mind, being under

the influence of alcohol and mental health medications, his

extreme lack of sleep, and recent hospitalization for attempted

suicide. [Keller] was also fatigued, medicated, influenced by his

excessive drinking the night prior, and under the stress of not

having any contact with his three young children[, such] that his

confession was not voluntary and his waiver of Miranda rights

was not knowing or intelligent. … [Keller’s] statements [that]

followed his unknowing, unintelligent, and involuntary waiver

should be suppressed. Because the initial Miranda waiver was

not valid, the statements made during the post-polygraph

interview[,] and any evidence which flowed from the same[,]

should have been suppressed.

Brief for Appellant at 24-25 (paragraph break omitted). Keller argues in the

alternative that “[r]eviewing the totality of the circumstances, even [] if the

Miranda waiver was valid, such waiver did not encompass the post-

polygraph [police] interview.” Id. at 27.

Concerning the trial court’s denial of his Motion to sever, Keller

contests the trial court’s finding that the separate criminal acts charged in

the respective criminal Informations were separated by only a few days.

See id. at 31 (stating that Keller “was accused of sexually assaulting [the

victim] from August 1, 2014[,] to May 9, 2015[,] in Cumberland County, and

then was accused months later in another county” of the crimes related to

-6-

J-S01014-18

Keller’s destruction of the victim’s home and DUI). Additionally, Keller

complains that “[t]he trial court never analyzed whether [he] would be

prejudiced by his sexual assault, burglary and DUI, and harassment cases all

being tried jointly before the same jury.” Id. at 32; see also id. at 33

(asserting that “[t]he jury was incapable of separating evidence of the

various individual offenses.”).

In its Opinion, the trial court addressed Keller’s challenges to the

denial of his Motions to suppress and sever, and explained its reasons for

determining that neither challenge entitled Keller to relief. See Trial Court

Opinion, 6/14/17, at 8-12. We agree with the trial court’s analysis and

determination, and discern no abuse of its discretion. Accordingly, we affirm

on this basis in rejecting Keller’s first two issues. See id.

In his third issue, Keller contends that the Commonwealth failed to

present sufficient evidence for the jury to properly find that he had

committed all of the charged crimes4 beyond a reasonable doubt. See Brief

____________________________________________

4In lieu of stating herein the statutory definitions of the myriad offenses of

which Keller was convicted, we point to the statutes in question. See 18

Pa.C.S.A. §§ 3125(a)(1), 3125(a)(8), 3126(a)(1), 3126(a)(8), 2709(a)(6),

2709(a)(7), 3124.1, 6318(a)(1), 6301(a)(1)(ii), 3502(a)(2), 3304(a)(5),

3733(a), 3503(a)(1)(i), 4952(a)(1), 908(a), 2706(a)(1); 75 P.S.

§§ 3802(a)(1), 3802(b).

-7-

J-S01014-18

for Appellant at 34-51.5 Concerning his convictions related to his sexual

assaults of the victim (hereinafter “the sexual assault offenses”), Keller

argues that “the Commonwealth failed to establish beyond a reasonable

doubt that any of the crimes charged occurred between August 1, 2014[,]

and May 19, 2015, the dates alleged in the information.” Id. at 38; see

also id. at 37-38 (wherein Keller urges that the victim’s testimony as to the

precise period of time during which Keller was assaulting her was “vague

and uncertain”). Keller further argues that the victim’s testimony as to the

number and nature of the sexual acts that had occurred was “disturbingly

vague.” Id. 38-39. Additionally, Keller contends that the Commonwealth

presented very little testimony as to whether the sexual contact was

consensual. Id. at 46. Finally, concerning his convictions arising out of his

destruction of the victim’s residence with a machete, and subsequent fleeing

the scene in his car, Keller asserts that

(1) he did not flee police apprehension in his car where he

“traveled approximately one mile at a normal rate of speed,

this was not a high speed chase, … and [Keller] complied

with the officer’s request to turn off the car[,]” id. at 47;

____________________________________________

5 In his Argument section concerning this issue, Keller does not challenge

the sufficiency of the evidence supporting his convictions of harassment,

burglary, criminal trespass, intimidation of witnesses or victims, terroristic

threats, or DUI. See Brief for Appellant at 46. Accordingly, he has waived

any challenge to those convictions. See, e.g., Commonwealth v.

Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (stating that, where the

appellant “fails to expand upon [a] claim in the argument section of his brief

… the claim is waived.”).

-8-

J-S01014-18

(2) “[t]he Commonwealth failed to establish that the damage to

the [victim’s grandparent’s] home exceeded $5[,]000.00, as

required for a conviction of criminal mischief graded as a

felony of the third degree[,]” id. at 49;

(3) the machete that Keller used to destroy the home, which he

lawfully purchased, does not fall under the statutory

definition of a prohibited “offensive weapon[,]” id. at 49-50.

The trial court concisely addressed Keller’s sufficiency challenge in its

Opinion, set forth our standard of review, and determined that there was

ample evidence for the jury to convict Keller of the sexual assault offenses.

See Trial Court Opinion, 6/14/17, at 12-13. We agree with the trial court’s

analysis and determination, which is supported by the record and the law,

and therefore affirm on this basis in rejecting Keller’s sufficiency challenge to

the sexual assault offenses. See id.; see also Commonwealth v.

Charlton, 902 A.2d 554, 562 (Pa. Super. 2006) (noting that, in a

prosecution for, inter alia, incest and corruption of minors, this Court has

long held that a victim’s uncorroborated testimony is sufficient to convict).

There was also ample evidence presented for the jury to convict Keller

of fleeing or attempting to elude a police officer, where the arresting officer

testified that Keller continued to drive for “at least a mile” after the officer

activated his lights and siren, failed to slow down, and did not stop until the

officer blocked Keller’s vehicle at a traffic light. See N.T., 7/12/16, at 222-

23.

The evidence is also sufficient to sustain Keller’s conviction of criminal

mischief where the victim’s grandfather, who owned the home that Keller

-9-

J-S01014-18

had destroyed, reported that Keller caused nearly $10,000 in property

damage, which is double the threshold amount for a conviction of felony

criminal mischief.

Finally, the evidence is sufficient to sustain Keller’s conviction of

prohibited offensive weapons.6 A machete, which is a large blade typically

reserved for clearing dense tropical vegetation, “serves no common lawful

purpose,” and its capacity to inflict serious bodily injury is beyond dispute.

18 Pa.C.S.A. § 908(c) (emphasis added); see also Commonwealth v.

Walton, 380 A.2d 1278, 1279-80 (Pa. Super. 1977) (en banc) (rejecting

defendant’s sufficiency challenge concerning his conviction of prohibited

offensive weapons where he possessed a “sword cane,” which served no

common lawful purpose and was therefore a prohibited offensive weapon

under section 908(c)).

In his fourth issue, Keller argues that the sentencing court abused its

discretion by

impos[ing] consecutive sentences[,] all at the very top of the

standard [guideline] range[,] resulting in a manifestly excessive

aggregate sentence[,] while failing to consider:

(a) the rehabilitative needs of [Keller] as required by [section]

9721(b) of the Sentencing Code;

____________________________________________

6 The Crimes Code definition of an “offensive weapon” does not specifically

include a machete. See 18 Pa.C.S.A. § 908(c). However, the statute

provides the following “catchall” definition of a prohibited offensive weapon:

any “other implement for the infliction of serious bodily injury which serves

no common lawful purpose.” Id.

- 10 -

J-S01014-18

(b) mitigating circumstances such as: [Keller’s] age, his lack

of any prior criminal record, [] his personal characteristics

and his life situation, as well as his remorse and potential

for rehabilitation.

(c) the sentencing court in the instant action failed to state

any reasons on the record related to the mitigating factors

presented to the court.

Brief for Appellant at 18-19.

Keller challenges the discretionary aspects of his sentence, from which

there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d

359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has

preserved the sentencing challenge for appellate review by raising it at

sentencing or in a timely post-sentence motion, the appellant must (1)

include in his brief a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a sentence,

pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial

question that the sentence imposed is not appropriate under the Sentencing

Code. Hill, 66 A.3d at 363-64.

Here, Keller included a Rule 2119(f) Statement in his brief. See Brief

for Appellant at 17-19. Moreover, his above-mentioned claims present a

substantial question for our review. See Commonwealth v. Caldwell, 117

A.3d 763, 770 (Pa. Super. 2015) (en banc) (stating that “an excessive

sentence claim—in conjunction with an assertion that the [trial] court failed

to consider mitigating factors—raises a substantial question.”) (citation

omitted); see also Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa.

- 11 -

J-S01014-18

Super. 2016) (holding that a claim that appellant’s standard range

consecutive sentence was excessive, and the trial court failed to consider

appellant’s rehabilitative needs, raised a substantial question). Accordingly,

we will address the merits of Keller’s claims.

In its Opinion, the trial court addressed Keller’s challenge to his

sentence, summarized our standard of review and the applicable law, and

opined that the court properly exercised its discretion in imposing a sentence

commensurate with the seriousness of Keller’s numerous crimes. See Trial

Court Opinion, 6/14/17, at 15-16. We fully agree with the trial court’s

cogent reasoning and discern no abuse of its discretion in imposing a

reasonable and just aggregate sentence befitting the seriousness of Keller’s

crimes. Accordingly, we affirm on this basis as to this issue. See id.

In his fifth issue, Keller avers that the trial court erred in failing to

merge for sentencing purposes certain of his convictions. See Brief for

Appellant at 64-66. According to Keller, the following convictions should

have merged:

(a) indecent assault, 18 Pa.C.S.A. § 3126(a)(1), with aggravated

indecent assault, id. § 3125(a)(1);

(b) indecent assault, id. § 3126(a)(8), with aggravated indecent

assault, id. § 3125(a)(8);

(c) corruption of minors, id. § 6301(a)(1)(ii), with aggravated

indecent assault, id. § 3125(a)(1); and

(d) sexual assault, id. § 3124.1, with aggravated indecent

assault, id. § 3125(a)(1).

- 12 -

J-S01014-18

Brief for Appellant at 65. Keller argues that “[w]here the above crimes

‘ar[o]se from a single criminal act and all of the statutory elements of one

offense are included in the statutory elements of the other offense[,]” the

trial court erred in not merging them for sentencing purposes.” Id. at 66

(quoting 42 Pa.C.S.A. § 9765 (governing merger of sentences)).

The trial court concisely discussed this claim in its Opinion, set forth

the applicable law, and determined that it properly did not merge the

sentences on the convictions at issue. See Trial Court Opinion, 6/14/17, at

16-17. As the trial court’s reasoning is supported by the law, and we agree

with its determination and discern no sentencing error, we affirm on this

basis as to this issue. See id.

In his sixth and final issue, Keller argues that the trial court unlawfully

determined that he met the requirements for classification as a SVP, pointing

to this Court’s recent decision in Commonwealth v. Butler, 173 A.3d 1212

(Pa. Super. 2017). See Brief for Appellant at 51-52. We agree.

Applying Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United

States, 570 U.S. 99 (2013), the Butler Court ruled that 42 Pa.C.S.A.

- 13 -

J-S01014-18

§ 9799.24(e)(3) of SORNA is unconstitutional.7 Butler, 173 A.3d at 1217-

18. Specifically, the Court stated as follows:

[S]ince our Supreme Court has held that SORNA registration

requirements are punitive or a criminal penalty to which

individuals are exposed, then … a factual finding, such as

whether a defendant has a “mental abnormality or personality

disorder that makes [him or her] likely to engage in predatory

sexually violent offenses[,]” 42 Pa.C.S.A. § 9799.12, that

increases the length of registration[,] must be found beyond a

reasonable doubt by the chosen fact-finder. Section

9799.24(e)(3) identifies the trial court as the finder of fact in all

instances and specifies clear and convincing evidence as the

burden of proof required to designate a convicted defendant as

a[] SVP. Such a statutory scheme in the criminal context cannot

withstand constitutional scrutiny.

Butler, 173 A.3d at 1217-18. Accordingly, the Butler Court ruled that “trial

courts cannot designate convicted defendants SVPs (nor may they hold SVP

hearings) until our General Assembly enacts a constitutional designation

mechanism.” Id. at 1218.

In the instant case, Keller was determined to be a SVP under the now-

unconstitutional SVP mechanism. Thus, pursuant to Butler, we must vacate

the trial court’s sentencing Order finding that Keller is a SVP, as such a

determination is no longer legal. See id. Therefore, we vacate that portion

of the sentencing Order, and remand Keller’s case for the sole purpose of

____________________________________________

7 Subsection 9799.24(e)(3) provides that at the conclusion of a SVP hearing,

“the court shall determine whether the Commonwealth has proved by clear

and convincing evidence that the individual is a [SVP].” 42 Pa.C.S.A.

§ 9799.24(e)(3) (emphasis added).

- 14 -

J-S01014-18

having the trial court issue Keller appropriate notice of his registration

obligations under 42 Pa.C.S.A. § 9799.23. See Butler, 173 A.3d at 1218.

Portion of sentencing Order deeming Keller a SVP vacated. Judgment

of sentence affirmed in all other respects. Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/21/2018

- 15 -

Circulated 02/23/2018 11:53 AM

COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF

PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA

: CP -21 -CR-0002444-2015

: CHARGE: SEXUAL ASSAULT

(1)

: (3) AGGRAVATED INDECENT ASSAULT

: (4) AGGRAVAI'ED INDECENT ASSAULT

: (5) UNLAWFUL CONTACT WITH MINOR

: (6) CORRUPTION OF MINORS

: (7) INDECENT ASSAULT

: (8) INDECENT ASSAULT

: AFFIANT: TPR. KRISTA MILLER

: OTN: T693010-3

: CP-21 -CR-0002648-2015

: CHARGE: (1) BURGLARY -ADAPTED FOR

: OVERNIGHT ACCOMMODATION -NO

PERSON PRESENT (2) CRIMINAL MISCHIEF

: (3) FLEEING OR ATTEMPTING TO ELUDE

: POLICE OFFICER (4) CRIMINAL TRESPASS

: (5) INTIMIDATION OF WITNESSES OR

: VICTIMS (6) PROHIBITED OFFENSIVE

: WEAPONS (7) TERRORISTIC THREATS

(8) DUI -GENERAL IMPAIRMENT

DUI -HIGH RATE

(9)

: AFFIANT: PTL. WILLIAM CERVOLA

: OTN: L963664-2

TODD M. KELLER CP-21 -CR-0002440-2015

: CHARGE: (1) HARASSMENT

: (2) HARASSMENT

: AFFLANT: TPR. KRISTA MILLER

: OTN: T700409.3

IN RE: OPINION PURSUANT TO PA. R.A.P. 1925

BREWBAKER, J., 2017

Appellant Todd M. Keller raises several issues in his appeal. For the reasons that follow,

the Court respectfully suggests that it committed no error and did not abuse its discretion and

therefore its decisions should be affirmed.

Statement of Facts

On June 29, 2015, Trooper Krista Miller received a phone call from Cumberland County

Children and Youth Services, advising that a referral had been made from the victim's

therapist/counselor. The victim, L.K., had disclosed that her step-father, the appellant, had been

sexually assaulting her since she was in sixth grade until she was removed from the home in May

2015. L.K. was thirteen years old when the assaults began and fourteen when she was removed.

The victim was subsequently interviewed at the Children's Resource Center, where she disclosed

that Appellant had been physically and sexually abusing her. L.K. related that Appellant had

touched her vagina multiple times per week, and had forced her to touch his penis and perform

oral sex on his penis. In addition, Appellant had forced the victim to have vaginal sexual

intercourse with him more than five but less than ten times, and also had penetrated her buttocks

with his penis between five and ten times. L.K. related that the most recent incident had

occurred several days prior to her removal from the home in May 2015.

A search warrant was executed on Appellant's residence. Appellant was asked if any

semen would be located in the basement of the residence. Appellant stated that there would be in

the back bay. A few items were seized from the residence, though no testing of the objects was

performed.

On August 19, 2015 at approximately 7:21 am., Trooper Miller of the Pennsylvania State

Police requested Appellant come in to the station so that she could inform him of the allegations

against him, and he could be interviewed. Appellant told Trooper Miller that he was leaving

town, but he would let her know. 'However, he arrived at the station that same morning around

9:00 a.m., without a scheduled appointment, and talked to Trooper Miller and Trooper Michael

2

Bence in their interview room. Appellant was told at that time that he was free to leave and that

he was not under arrest.

At some point during his statement, Trooper Miller requested that Appellant take a

polygraph examination. He initially refused, stating that he would fail it. After she told him it

would be one of the easiest ways to wrap up the investigation and that it would be the fastest way

to get his kids back, he eventually consented. Because neither Trooper Miller nor Trooper Bence

were qualified as polygraph examiners, they had to await the arrival of Trooper Jeremy Matas.

While they were waiting, Trooper Miller escorted Appellant to the front of the building, and told

him he could wait in the lobby, the parking lot, or wherever else he felt comfortable. Appellant

asked if he could go outside for a cigarette and then asked Trooper Miller to wait with him while

he smoked. While outside. Appellant asked Trooper Miller jibe could "just plead guilty," but

Trooper Miller advised him that is not how these things work. Trooper Matas then arrived at the

station. While Trooper Matas went to set up for the polygraph; Trooper Miller went inside the

station and left Appellant outside by himself.

Beginning around 11:05 a.m. on August 19, 2015, Trooper Matas conducted a polygraph

examination of Appellant. Prior to beginning the examination, Trooper Matas had Appellant

sign a polygraph waiver form that included a section regarding Appellant's Miranda rights, but

also told him that he was free to leave. Appellant signed the form, which also discussed the three

parts to the test: the pre-test, the in-phase testing, and the post-polygraph interview. Trooper

Matas then conducted the pre-test, where he talked to Appellant at length. After the pre-test,

Trooper Matas gave Appellant a break, after which he conducted the polygraph examination,

followed by another break. Appellant was never handcuffed and never said he wanted to leave.

3

Around 11:17 a.m. while being interviewed on August 19, 2015, Appellant yawned and

said he was very tired. He told Trooper Matas he had only slept for forty-five minutes the night

before, and that he had consumed seven beers that previous night. He also told. Trooper Matas

that he was on Ativan and another medication for depression and anxiety. The polygraph

examination ended around 1:23 p.m., and the post-polygraph interview began around 1:39 p.m.

Appellant's polygraph examination revealed deception regarding his denial of sexual

contact with the minor victim. After the polygraph, Trooper Matas talked with Appellant about

the deception, and discussed why the machine might show signs of deception. At this point,

Appellant's story began to change. At one point, he asked Trooper Miller, who had rejoined

Trooper Matas for the post -polygraph interview, if he could go home and call her later. Trooper

Miller told him that now was the time and, if he cooperated, she would not arrest him. Appellant

made further incriminating statements, and then left the station.

On August 21, 2015, Appellant left a threatening voicernail at the victim's grandparents'

house, where the victim was residing, telling her that he was coming and she had better run. L.K.

then fled to the home of a neighbor who called 911. Appellant then went to the grandparents'

home in East Berlin. Pennsylvania and using a machete, broke into the home and caused

extensive damage. Appellant went to the victim's bedroom first, and then to the grandparents'

bedroom. Appellant fled the scene, but was spotted by Patrolman William Cervola who was

responding to the call by the victim's neighbor. Patrolman Cervola activated his emergency

lights, but Appellant did not immediately pull over. Eventually, Appellant was forced to stop

when another car stopped at a red light and Patrolman Cervola positioned his vehicle to prevent

Appellant from driving away. Patrolman Cervola approached Appellant, and immediately

noticed the very strong smell of alcohol emanating from Appellant's vehicle, along with

4

Appellant's bloody hands. Appellant admitted to breaking into his in-laws' home, and

Patrolman Cervola placed Appellant under arrest for driving under the influence of alcohol. On

August 24, 2015, a warrant was issued for Appellant's arrest on charges relating to Docket

#2444-2015.

On July 1 1, 2016, the morning that his jury trial was scheduled to begin, Appellant filed

an Omnibus Pretrial Motion seeking to suppress the inculpatory statements and polygraph

examination results, as well as a motion to sever the three dockets joined for trial. After a

hearing, the Court denied both of Appellant's motions. Following a week-long trial, on July 15,

2016 the jury returned a verdict of giiilty on all counts.' The Court ordered Appellant to undergo

an assessment by the Pennsylvania Sexual Offender Assessment Board, and to appear for

sentencing on November 1, 2016. After the Sexual Offender Assessment Board conducted its

evaluation, Appellant requested a continuance and to have his own expert appointed, with the

Court granting both requests. Ultimately, the Sexually Violent Predator determination hearing

occurred on April 27, 2017.

At the hearing, the Commonwealth called Dr. Robert M. Stein, a member of the

Pennsylvania Sexual Offenders Assessment Board to testify as an expert on sexual offender

assessments. Dr. Stein had previously reviewed the police report, criminal complaint, and other

records, and had conducted an interview with Appellant. During his testimony, Dr. Stein

reviewed the fifteen statutory factors in determining whether Appellant is a sexually violent

predator and testified to a reasonable degree of professional certainty that Appellant is, a sexually

violent predator. Dr. Stein concluded that Appellant suffers from "other specified paraphilic

Due to an error in the criminal information, the charge of Statutory Sexual Assault at Count 2 of Docket Pt2444-

2015 was incorrectly filed, and was withdrawn by the Commonwealth, without objection by the defense, prior to the

jury reaching a verdict on that charge.

5

disorder of non -consent." He further testified that only twenty percent of his assessments

resulted in a determination that a person met the criteria for a sexually violent predator.

Appellant called Dr. Thomas F. Haworth as an expert. Dr. Haworth has a private

practice, but used to be a member of the Sexual Offenders Assessment Board. Dr. Haworth

reviewed the same information as Dr. Stein but concluded that Appellant is not a sexually violent

predator. Dr. Haworth concluded that Appellant suffers from bipolar disorder, and questioned

Dr. Stein's diagnosis of other specific paraphilic disorder non -consent. At the conclusion of the

hearing,- the Court determined that the Commonwealth had satisfied its burden of proving by

clear and convincing evidence that Appellant is a sexually violent predator.

Subsequently, Appellant was sentenced by the Court as follows. At Docket NCR -2444-

2015, on all counts, Appellant was sentenced to pay the costs of prosecution, a fine, and to make

restitution as appropriate. In regards to periods of incarceration, at Count 1, Sexual Assault,

Appellant was sentenced to imprisonment for not less than four but no more than ten years, with

credit for time already served since August 8, 2015.2 At Count 3, Aggravated Indecent Assault,

Appellant was sentenced to undergo incarceration for not less than three nor more than six years,

consecutive to Count 1. At Count 4, Aggravated Indecent Assault, the sentence was to undergo

imprisonment for not less than three nor more than six years, consecutive to Count 3. At Count

5, Unlawful Contact With a Minor, the sentence of the Court was that Appellant undergo

imprisonment for not less than three nor more than six years, consecutive to Count 4. At Count

6, Corruption of Minors, the Appellant was sentenced to incarceration for not less than one nor

more than two years, consecutive to Count 5. At Count 7, Indecent Assault, Appellant was

sentenced to imprisonment for not less than three nor more than six months, concurrent with

2Although the credit date of August 8, 2015 was reflected in the presentence report and not disputed by either

counsel, it is likely incorrect as Appellant was not in custody until he was arrested for on August 21, 2016.

6

Count 6. And at Count 8, Indecent Assault, Appellant was sentenced to undergo imprisonment

for not less than three nor more than six months, concurrent with Counts 6 and 7.

At Docket #CR-2648-2015, Appellant was again sentenced at all counts to pay the costs

of prosecution, a fine, and appropriate restitution; furthermore, Appellant was sentenced at Count

1, Burglary, to serve a period of incarceration of not less than one nor more than two years,

consecutive to the sentences at Docket #CR-2444-2015. At Count 2, Criminal Mischief,

Appellant was sentenced to undergo imprisonment for not less than three nor more than six

months, consecutive to Count 1. At Count 3, Fleeing or Attempting to Elude a Police Officer,

Appellant was ordered to undergo imprisonment for not less than one nor more than two years,

consecutive to Count 3. Count 4, Criminal Trespass, merged with Count 1, Burglary. At Count

5, Intimidation of a Witness or Victim, Appellant was sentenced to imprisonment for not less

than one nor more than two years, consecutive to Count 3. At Count 6, Prohibitive Offensive

Weapons, Appellant was ordered to undergo imprisonment for not less than three nor more than

six months, consecutive to Count 5. At Count 7, Terroristic Threats, Appellant was sentenced to

not less than one nor more than twelve months, consecutive to Count 6. And at Count 8, Driving

Under the Influence -General impairment, Appellant was ordered to undergo a period of

supervised probation for six months, concurrent to Count 7.3

At Docket #CR-2440-2015, Count 1, Harassment, Appellant was ordered to pay the costs

of prosecution, a fine of $50, and undergo a period of supervised probation for one year,

concurrent with the sentences imposed at Docket #CR-2648-2015. At Count 2, Harassment,

Appellant was ordered to pay the costs of prosecution, a fine of $50, and undergo a period of

supervised probation for one year, concurrent with Count 1.

3 To avoid any post-conviction issues on the alcohol test, the Commonwealth agreed at the time of sentencing that

the Court should sentence at Count 8, and Merge Count 9, Driving Under the Influence -High Rate of Alcohol, with

the lower charge.

7

Appellant's overall minimum sentence was sixteen years, ten months, which was within

the standard range of the sentencing guidelines. The Court explained at the time of sentencing

that it was imposing such a significant sentence because the appellant showed no remorse for his

actions, including molesting his step -daughter over a period of .several months, threatening her

when she finally told someone what had happened, and finally carrying out that threat by

breaking into her grandparents' home and destroying the victim's bedroom first.

Analysis

On appeal, Appellant raises six issues. In his first and second issue, Appellant argues that

the Court erred indenying his Motion to Suppress and Motion to Sever. Next, Appellant

contends that the evidence was insufficient to sustain a guilty verdict. Fourth, Appellant argues

that the Court erred and abused its discretion in classifying him as a sexually violent predator.

Fifth, Appellant contends that the Court abused its discretion in imposing consecutive sentences

at the top of the standard range resulting in an "excessive and unreasonable aggregate sentence"

and failed to take into consideration mitigating circumstances. Finally, Appellant argues that the

court erred in failing to merge certain convictions for sentencing purposes.

Motion to Suppress and Motion to Sever

Appellant's first complaint on appeal is that the Court erred in denying his motion to

suppress his statements made in his post -polygraph interview, as well as all evidence resulting

therefrom. His second complaint is that the Court erred in denying his motion to sever.

Initially, it is important to note that both Appellant's motion to suppress and his motion to

sever were untimely. Appellant was arraigned on the burglary charges on November 3,2015,

and on the sexual offenses on November 24,2015, giving him thirty days from those dates to file

8

any pretrial motions. Furthermore, trial counsel in the person of Stacy Wolf was appointed on

April 12, 2016, after the Public Defender Office found they had a conflict in representing

Appellant, Appellant's motions were not filed until the morning of his scheduled jury trial, on

July 11, 2016, almost three months after trial counsel was appointed.

Trial counsel attempted to argue that she did not receive sufficient discovery until June

21, 2016, but admitted that she had discovery relating to the subject matter that she was seeking

to suppress, as well as access to conversations with her client, such that she would have been

aware of any issues regarding his incriminating statements. Furthermore, counsel conceded that

all discovery relevant to her motions was provided by June 21, 2016, and yet she did not file her

motion until the morning of trial, twenty days after she had received every item of discovery. It

is also important to note that the motion to sever, which was also filed on July 11, 2016, did not

require any discovery whatsoever; the Commonwealth's Notice of Trial Joinder was filed on

November 17, 2015. Assuming arguendo that there was good cause for trial counsel's

significant delay, both motions were properly denied.

In addressing the motion to suppress, this Court properly denied that motion, as it was

based on the inculpatory statements that Appellant made after he failed his polygraph

examination, which was done after he signed a Miranda waiver encompassing the post -

polygraph conversation. Examining the totality of the circumstances, Appellant's waiver of his

rights was done knowingly, intelligently, and completely voluntarily.

In reviewing the case law, the Court began with Commonwealth v. HiII, 104 A.3d 1220

(Pa. 2014), as it was the case presented in. Appellant's motion to suppress. In Hill, the.

Commonwealth appealed to determine lijs a second set of Miranda warnings and a second

waiver required before questioning a criminal defendant immediately after he failed a polygraph

9

examination and waived his right to remain silent after being read Miranda warnings right before

the polygraph examination?" Id, at 1236. However, this case actually dealt with an ineffective

assistance of counsel claim, and the Supreme Court remanded this case to the Superior Court for

further findings. On remand, an unpublished opinion in Commonwealth v. Hill, 125 A.3d 445

(Pa. Super. 2015), found that Hill had "knowingly, intelligently and voluntarily made his April

25, 1998 post-polygraph statement." The flit/ court cited Pfryrick v. Fields, 459 U.S. 42 (1982)

(per cariarn) for the "totality of the circumstances" test in determining if a defendant had waived

his right to counsel at a post -polygraph interview.

In the instant case, this Court undertook the totality of the circumstances evaluation at the

conclusion of the suppression hearing. The Court now relies primarily on those findings, as

follows:

The Court specifically finds that the Defendant came to the interview on his own.

He was told multiple times that he was free to leave.

He was left in the parking lot or the lobby several times unattended. He signed

his Miranda statement after it being read to him and thoroughly explained to him

on the video.

So the Court specifically finds that there is a valid initial waiver of his rights. The

case law then says to determine whether there's a valid post -polygraph waiver of

the right to look at the contents of the waiver and to look at whether there was a

request for counsel.

The waiver included the pre -interview, the polygraph, and the post -polygraph

interview, and that was explained to Mr. Keller, and that Mr. Keller never

requested counsel throughout this entire proceeding. He was never handcuffed.

He was. never in a locked room. He was allowed to leave, and he did, in fact,

leave.

Notes of Testimony, In Re: Omnibus Pretrial Motion, 7/11/16, pg. 71.

Appellant argued at the hearing that the fact that he was tired, etas taking two

medications, and had several beers the night before invalidated his lawful waiver of counsel.

I0

However, based on the totality of the circumstances, it is clear that Appellant validly waived his

right to counsel and never wavered in that decision. He never requested counsel, and never

indicated that he was done talking to the police. It was only when he was confronted with his

deception that he confessed to the crimes he had committed. Prior to that time, however, he had

asked to plead guilty, and had been given multiple opportunities to leave the station.

Furthermore, according to the specific waiver that he signed, Appellant knew that the polygraph

examination was being given in regard to "allegations that-you put your penis in [L.K.'s] vagina

while at your house from 2013-2015." Even after being provided that information, with specific,

serious allegations, Appellant signed the waiver, and proceeded to undergo the polygraph, take a

break, and then talk to the police in the post -polygraph interview. He then confessed in the post -

polygraph interview, but was still allowed to leave, as promised. His constitutional rights were

not infringed in any way.

In regard to Appellant's argument that the Court erred in denying his motion to sever, the

issue was again raised significantly past any time limitations provided by law. Assuming

arguencio that the motion to sever was timely raised, it was also properly denied.

Appellant was charged with three separate dockets. Docket B2444-2015 involved various

sexual charges with his minor stepdaughter as the victim. Docket #2648-2015 involved charges

of burglary, DUI, and related offenses, also involving the same victim, as well as her

grandparents. Docket #2440-2015 involved two counts of harassment, again involving the same

victim. Importantly, the interview with the State Police occurred on August 19, 2016, after

which Appellant, despite being instructed to have no contact with the victim or her grandparents,

repeatedly called, and then two days later, on August 21st, committed the actions relating to

Docket #2648-2015. The harassment charges at Docket #2440-2015 relate to the phone calls

11

made in the intervening two days between the interview and the burglary. While these acts may

have been separated by a few days, they were all part of a single chain of events and involved,

for the most part, the same victim. The victim's grandparents were only tangentially involved, as

the real target of Appellant's aggression and violence was L.K. For these reasons, the motion to

sever was properly denied.

Sufficiency of the Evidence

Appellant argues that the evidence was insufficient to sustain the guilty verdicts. The

following standard applies when reviewing a sufficiency of the evidence claim:

whether viewing all the evidence admitted at trial in the light most favorable to

the verdict winner, there is sufficient evidence to enable the fact-finder to find

every element of the crime beyond a reasonable doubt. In applying [the above]

test, we may not weigh the evidence and substitute our judgment for the fact -

finder. In addition, we note that the facts and circumstances established by the

Commonwealth need not preclude every possibility of innocence. Any doubts

regarding a defendant's guilt may be resolved by the fact -finder unless the

evidence is so weak and inconclusive that as a matter of law no probability of fact

may be drawn from the combined circumstances. The Commonwealth may

sustain its burden of proving every element of the crime beyond a reasonable

doubt by means of wholly circumstantial evidence. Moreover, in applying the

above test, the entire record must be evaluated and all evidence actually received

must be considered. Finally, the [finder} of fact while passing upon the credibility

of witnesses and the weight of the evidence produced, is free to believe all, part or

none of the evidence.

Commonwealth v. Best, 120 A.3d 329, 341 (Pa. Super. 2015).

In the present case, over the course of the five day trial a significant amount of testimony

was given and substantial evidence was introduced. The evidence established, beyond a

reasonable doubt, that over the course of several months, Appellant had sexually assaulted L.K.

on numerous occasions. After he discovered that she had reported his assaults, the Appellant

called and threatened her that he was coming, then drove to her grandparents' home while

intoxicated, broke down the door and destroyed the inside of the victim's bedroom as well as the

12

grandparents' bedroom. The victim's testimony was clearly found to be credible by the jury and

alone is sufficient to establish Appellant's guilt regarding the. sexual crimes: Additionally, the

jury saw the video of Appellant's confession to the crimes, Patrolman Cervola testified

concerning the burglary, DUI, and other related offenses, and the jury heard recordings of

Appellant's calls to the victim and family threatening to cause her harm. The jury found this

testimony and evidence to be credible. While Appellant testified and denied the allegations, the

jury chose to not find his testimony credible.. Moreover, the issue of credibility goes to the

weight, not sufficiency of the evidence, Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa.

Super. 2003). The Court may not substitute its judgment for that of the jury as fact -finder; there

was sufficient evidence in the present case to sustain the guilty verdicts on all charges.

Sexually Violent Predator Determination

Appellant argues that the Court erred and abused its discretion in classifying Appellant as

a sexually violent predator ("SVP"). The Superior Court has a well -established standard in

reviewing a SVP designation:

In order to affirm an SVP designation, we, as a reviewing court, must be able to

conclude that the fact-finder found clear and convincing evidence that the

individual is a sexually violent predator. As with any sufficiency of the evidence

claim, we view all evidence and reasonable inferences therefrom in the light most

favorable to the Commonwealth. We will reverse a trial court's determination of

SVP status only if the Commonwealth has not presented clear and convincing

evidence that each element of the statute has been satisfied.

Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa. Super. 2011) (quoting Commonweatth v.

Fuentes, 991 A.2d 935, 942 (Pa. Super. 2010). When evaluating the testimony of witnesses, the

fact finder is free to accept or reject the credibility of expert and lay witnesses alike, and may

believe all, part or none of the evidence. .Nemirovsky v. Nemirovsky, 776 A.2d 988, 993 (Pa.

Super. Ct. 2000). "The credibility of witnesses, professional or lay, and the weight to be given

13

their testimony is strictly within the proper province of the trier of fact." Summers

v. Certainteed Corp,, 997 A.2d 1152, 1161 (Pa. 2010) (quoting In re Estate of Hunter, 205 A.2d

97, 102 (Pa. 1964)).

In the instant case, both the Commonwealth and Appellant presented expert testimony on

the issue of whether Appellant is a sexually violent predator. The Court chose to find the

Commonwealth's expert, Dr. Stein, to be more credible than Appellant's expert, Dr. Haworth.

The fact that Appellant presented an expert who disagreed with Dr. Stein does not mean that the

Commonwealth failed to present sufficient evidence to satisfy the clear and convincing evidence

standard. Dr. Stein testified that in his professional opinion, to a reasonable degree of

professional certainty, Appellant should be found to be a sexually violent predator in accordance

with the required statutory factors. In his testimony, he noted that he only finds that a person

meets this criteria in approximately twenty percent of the cases he reviews. The Court chose to

credit his testimony over that of Dr. Haworth, and did not abuse its discretion.

Sentencing

Appellant argues that the Court abused its discretion in imposing consecutive sentences

as well as sentences at the "very top" of the standard range, which resulted in an excessive and

unreasonable aggregate sentence. Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of

discretion. Commonwealth v. Dotter, 589 A.2d 726 (Pa. Super. 1991). "[X]II abuse of discretion

is not shown merely by an error in judgment [, but rather] the appellant must establish, by

reference to the record, that the sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly

unreasonable decision." Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017). A

14

sentence within the standard range of the guidelines is presumptively reasonable. See

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009), Furthermore, a sentencing

court "has the discretion to impose sentences consecutively or concurrently and, ordinarily, a

challenge to this exercise of discretion does not raise a substantial question." Id. (citation

omitted). See also 42 Pa. C.S. § 9721(a). "The imposition of consecutive, rather than

concurrent, sentences may raise a substantial question in only the most extreme circumstances,

such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and

the length of imprisonment." Commonwealth v. floury; 992 A,2d 162, 171-72 (Pa. Super. 2010)

(citation omitted). Finally, our Supreme Court has held that where the trial court possesses a pre-

sentence report, it is presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion should not be

disturbed. Commonwealth v. Devers. 546 A.2d 12 (Pa. 1988).

The sentence imposed by the Court, while significant, was not excessive, unreasonable,

or unduly harsh given the facts of the case. Appellant sexually assaulted his step -daughter on

multiple occasions over the course of several months. The victim was .a young teenage girl, who

was preyed upon within her home and by a person who was entrusted with her care. Once she

came forward and an investigation was begun, Appellant threatened physical violence against the

victim and subsequently carried out those threats, He drove to the victim's grandparents' house

while heavily intoxicated, used a machete to break down the door, and immediately went to the

victim's room and caused significant damage. These actions caused a great deal of emotional

harm to the victim, as she stated very eloquently, though tearfully, at the time of sentencing. The

Court's decision to run some of the sentences consecutively instead of concurrently was in large

part due to the serious nature of the crimes, the extended period of time and continued escalation

15

of violence, and the lack of remorse shown by Appellant. Appellant not only used his position of

authority to repeatedly take advantage of his step-daughter, but then turned to physical violence

when his actions became known, and even went so far as to blame the victim for the crimes he

had conunitted. The significance of Appellant's sentence was due to the seriousness of his

actions and not due to partiality, prejudice, bias or ill will. The Court relied on the pre -sentence

investigation report in making its decision, but is unsure what "substantial mitigating

circumstances" exist in this case as none were addressed by defense counsel or Appellant at time

of sentencing, except for two letters presented from family members in support of Appellant.

Additionally, all of the sentences were within the standard range and therefore are presumptively

reasonable. The Court did not abuse its discretion in sentencing Appellant.

Merger

Finally, we consider Appellant's contention that certain convictions should have merged

for sentencing purposes, specifically: indecent assault (18 Pa, C.S. § 3216(a)(1)) with aggravated

indecent assault (18 Pa. C.S. § 3125(a)(1)), indecent assault (18 Pa. C.S. § 3126(a)(8)) with

aggravated indecent assault (18 Pa. C.S. §3125(a)(8)), corruption of minors with aggravated

indecent assault, and sexual assault with aggravated indecent assault.

Under 42 Pa. C.S. § 9765, crimes do not merge for sentencing purposes unless (1) the

crimes arise from a single criminal act and (2) all of the statutory elements of one offense are

included in the statutory elements of the other offense. 42 Pa. C.S. § 9765. "If the offenses stem

from two different criminal acts, merger analysis is not required." Commonwealth v. Williams,

958 A.2d 522, 527 (Pa. Super. 2008) (citation omitted). In this regard,

[t]lie threshold question is whether [the defendant] committed one solitary

criminal act. The answer to this question does not turn on whether there was a

"break in the chain" of criminal activity. Rather, the answer turns on whether

"the actor commits multiple criminal acts beyond that which is necessary to

16

establish the bare. elements of the additional crimej.]" If so, then the defendant

has committed more than one criminal act. This focus is designed to prevent

defendants from receiving a "volume discount on crime."

Commonwealth v. Robinson, 931 A.2d 15, 24-25 (Pa. Super. 2007) (citations omitted).

In the present case, the victim testified that Appellant committed multiple different sexual

acts over a period of several months. Though the victim could not provide exact numbers, it was

clear that there were more acts than crimes charged, and the victim testified to specifics of

separate acts on separate occasions. Consequently, even assuming arguencto that all of the

statutory elements of one offense are included in the statutory elements of the other offense,

there was no single criminal act in the present case but rather many acts. Appellant's multiple

acts at different times fail the first prong of the test under the merger doctrine. Therefore, the

Court did not err in refusing to give Appellant a "volume discount" for his multiple acts and not

merging any of the above mentioned crimes for sentencing purposes.

It is respectfully submitted that the Court committed no abuse of discretion or errors of

law and therefore should be affirmed.

July 14, 2017

Erin Bloxhatn, Esquire

Assistant District Attorney

Stacy Wolf, Esquire

Court -appointed for Defendant

:rim

17