Com. v. Bailey, R.

J-S52037-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ROBERT LEWIS BAILEY, SR. :

:

Appellant : No. 1220 EDA 2020

Appeal from the Judgment of Sentence Entered November 18, 2019

In the Court of Common Pleas of Chester County Criminal Division at

No(s): CP-15-CR-0001050-2016

BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: FEBRUARY 19, 2021

Appellant, Robert Lewis Bailey, Sr., appeals from the judgment of

sentence entered by the Court of Common Pleas of Chester County after a

jury convicted him of multiple sex offenses for his 26-month course of conduct

with a young girl who was from 7 to 9 years of age at the relevant times.

Sentenced to an aggregate term of incarceration of 23 to 46 years, Appellant

raises numerous challenges in which he assails the court’s order denying his

pretrial Motion for Particularity of Anticipated Proof, the sufficiency of evidence

offered on the charge of Aggravated Indecent Assault, his sentencing scheme

based on the Aggravated Indecent Assault conviction, his conviction on the

charge of Corruption of Minors, and the creation of a fictitious second count of

Aggravated Indecent Assault for purposes of cataloguing the conviction in the

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S52037-20

county’s electronic case management system. We affirm, but remand with

instructions pertaining to proper recordation of convictions listed on

Appellant’s sentencing sheet.

The trial court provides a comprehensive and salient statement of facts

and procedural history of the present matter, as follows:

On April 6, 2016, the Commonwealth filed an Information against

Appellant charging him with one count (Count I) of Criminal

Solicitation to Commit Rape of a Child, 18 Pa.C.S.A. §§ 902,

3121(c)[,] six counts (Counts II-VII) of Indecent Assault, 18

Pa.C.S.A. § 3127(a)(7)[,] and one count (Count VIII) of

Corruption of Minors, 18 Pa.C.S.A. § 6301(a)(1)(ii).

The Commonwealth amended the information on January 16,

2019 to add two counts (Counts IX and X) of Aggravated Indecent

Assault, 18 Pa.C.S.A. § 3125(a)(1),(b) (Count IX), and 18

Pa.C.S.A. § 3125(a)(7) (Count X). The charges stemmed from

the repeated sexual abuse of a minor child by Appellant, . . . over

the course of two years, from January 8, 2014 through March 3,

2016.

After several pre-trial motions by both parties, trial began in this

matter with jury selection on March 4, 2019. On March 7, 2019,

on the record in open court on the third and last day of trial outside

of the presence of the jury, the Commonwealth withdrew

[numerous counts, leaving four counts—Counts I, II, VIII, and IX

for the jury]. On March 7, 2019, the jury returned a verdict of

guilty as to all four remaining charges[.] A Pre-Sentence

Investigative Report was ordered on March 8, 2019. Also on

March 8, 2019, [the trial court] issued an order directing the

Sexual Offenders Assessment Board to evaluate Appellant and

make a recommendation as to whether he qualified as a Sexually

Violent Predator.

[On November 18, 2019, the court imposed the following

sentence: on Count I, Solicitation to Commit Rape of a Child, 17

to 34 years’ incarceration; on Count II, Indecent Assault, 3 to 6

years’ incarceration, to run consecutively to the sentence at Count

I; on Count VIII, Corruption of Minors, 3 to 6 years’ incarceration,

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to run consecutively to Count II; and on Count IX, Aggravated

Indecent Assault, 10 to 20 years’ incarceration, to run

concurrently to the sentence at Count I. Appellant’s aggregate

sentence is 23 to 46 years’ incarceration.]

Also on November 18, 2019, [it was] determined Appellant was a

Sexually Violent Predator[, and the court] directed him to comply

with the requirements of SORNA. However, [the trial court]

granted Appellant’s motion for a stay of the application of SORNA

until the Commonwealth v. Torsilieri and Commonwealth v.

Lacombe cases were resolved by the Pennsylvania Supreme

Court.

On December 2, 2019, Appellant filed a counseled Post Sentence

Motion[, which the court denied on March 18, 2020.] On April 17,

2020, Appellant filed his Notice of Appeal. On April 22, 2020, [the

court] issued an Order directing Appellant to file within twenty-

one days a Concise Statement of Errors Complained of on Appeal

. . . pursuant to Pa.R.A.P. 1925(b). Defendant timely complied on

May 13, 2020.

...

[The facts relevant to present appeal are as follows:] Defendant

Robert Bailey [hereinafter “Appellant”], was a neighbor at the

apartment complex where the victim, S.S., born [in 2006], lived

from 2010 to November 2016 with her siblings and her mother,

[Mother]. Appellant was a handyman of sorts at the apartment

complex. Mother’s children played with [Appellant’s]

grandchildren and Mother testified that her children were allowed

to go inside Appellant’s home.

Mother, who had two other minor children at the time of these

events, allowed Appellant to take her children to local parks three

to four times per week in the evenings from 4:00 p.m. to 6:00

p.m. According to Mother, other neighborhood children always

went with Appellant and her children to the parks. Neither Mother

nor any other adult would ever accompany Appellant and the

children on their excursions. Mother also testified that her

children would also spend time with Appellant on the weekends

while she had to work.

On March 3, 2016, while Mother was at a friend’s house with S.S.,

the friend’s son, J.T., who was nine or ten at the time, told Mother

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that “Bob [Appellant] likes [S.S.] more than the other kids.”

Mother’s friend asked her son what he meant. At this moment,

S.S. put her head down. J.T. replied to his mother, “he likes her

better.”

At the urging of her friend, Mother called the police. Mother and

S.S. stayed at her friend’s house and the police arrived there that

evening to speak with her and her daughter, S.S. Mother left the

questioning of her daughter to the police because she did not want

S.S. to think that her mother was “making her say something.”

The law enforcement officer who initially responded to Mother’s

call was Trooper Nicholas Baton, at that time a Pennsylvania State

Trooper employed with Troop J in the Embreeville Barracks.

Trooper Baton’s interview with S.S. was audio recorded. Trooper

Baton told S.S. that he had “heard there was a problem between

her and her neighbor” and asked if she could tell him what was

going on. S.S. responded, “S-E-X.”

According to Trooper Batons testimony, S.S. told him that

her neighbor, [Appellant], . . . has been grabbing her

buttocks, has been kissing her, has been taking her to

the park. If she would go outside, if there was [sic]

no other adults around or any other children around,

[Appellant] would come out of his house, talk to her,

try to flirt with her, and he would grab her by the

hand.

N.T. (Trial), 3/5/19, 77. Trooper Baton further stated,

She also told me about when she would hang out at

the park on Supplee Road with her friends, if

[Appellant] was there, he would watch her, wait til

[sic] she was alone, take her some place, talk to her

and touch her, kiss her.

N.T. at 78. Trooper Baton added that S.S. also told him that one

time [Appellant] had given her a necklace as a gift. She told

Trooper Baton that she did not want the necklace and threw it

away.

Trooper Baton testified that in his police report which he prepared

as soon as he returned to the barracks following his interview with

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S.S., he recorded that S.S. had told him that [Appellant] would

force her to go to the park with him. He recorded that she told

him that Appellant would grab her by the hand or put his arm

around her and carry her to the park. Trooper Baton also recorded

that S.S. told him that Appellant would additionally grab her

around the stomach and take her to the park.

Trooper Baton recorded in his report that S.S. told him that if

there were ever other children around, Appellant would always

wait until they were gone before he would approach her. Trooper

Baton recorded in his report that S.S. told him that if there were

other children in the park who were friends that she knew,

Appellant would whisper in her ear and would talk to her when the

other children weren’t looking. He recorded that if there were

children there whom he did not know or with whom he was not

familiar, he would wait to talk to her until they were gone.

According to Trooper Baton’s testimony, S.S. told him that

Appellant would ask her to marry him, ask her for sex, tell her he

wanted it from her, and told her that he was having dreams about

it with her. S.S. told Trooper Baton that Appellant grabbed her

“many times.” Trooper Baton related that “[s]he said it could have

been over 100” times that this happened. Trooper Baton testified

that S.S. remembered Appellant “kissing her and putting his

tongue, like, in her mouth about twenty times.” S.S. told him that

if other children were around, Appellant would wait until it would

be just him and her and that nothing happened when the other

children were around. S.S. was nine years old at the time of her

interview with Trooper Baton. She was twelve at the time of trial.

After speaking with S.S. on March 3, 2016, Trooper Baton referred

the case to the crime investigators in the Pennsylvania State

Police.

In March of 2016, Corporal Lori Kistle, formerly Trooper Lori

Edgar, a three-year veteran of the Pennsylvania State Police with

specific training in forensic interviewing of child sex crimes victims

who is now assigned to the child crimes/sexual abuse crimes in a

supervisory capacity, conducted recorded interviews of S.S., her

sister Sk.S., and the boy who initially brought these allegations to

light on March 3, 2016, J.T.

At trial Corporal Kistle read to the jury a portion of the transcript

of her recorded interview with S.S. where S.S. told Corporal Kistle

that Appellant’s abuse had been going on for five years and that

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as recently as one week prior to the interview, Appellant had even

made inappropriate comments to her sister.

Corporal Kistle then read from a transcript of her interview with

S.S.’s sister, Sk.S. Sk.S. also told Corporal Kistle that Appellant

had been abusing S.S. for five years. Sk.S. told Corporal Kistle

that she observed Appellant touch S.S.’s vagina. Further in the

transcript of Corporal Kistle’s interview with Sk.S., Sk.S. said that

Appellant “would, like, grab her [S.S.] and then just like, puts his

other hand like this, and then did that, do that little tongue thing

. . . Like how you like, wiggle your tongue and your fingers like

this.”

Sk.S. told Corporal Kistle during this interview that she never saw

Appellant touch anyone else. Sk.S. also told Corporal Kistle that

S.S. would scream when Appellant tried touching her and that

Sk.S. would then yell at Appellant to stop touching and grabbing

her sister “cause it’s kinda child abuse when you’re doing that.”

She said that Appellant would respond “why do I have to do that?”

and Sk.S. would tell him to go. Sk.S. told Corporal Kistle that

Appellant would then just walk away without saying anything. She

told Corporal Kistle that she believed Appellant was afraid of her.

In Corporal Kistle’s recorded interview with J.T., J.T. told Corporal

Kistle that he has witnessed Appellant grab S.S.’s breast and try

to kiss her on the lips. J.T. told Corporal Kistle that S.S. told him

that Appellant has asked her for sex.

In March of 2016, Corporal Kistle spoke with Appellant outside of

the apartment complex where he and the victim lived. Corporal

Kistle is the one who filed the charges in this matter. Corporal

Kistle initially advised Appellant that she was placing him under

arrest and gave him Miranda [warnings]. She then transported

him to the Embreeville Barracks where she spoke with him at

length.

Appellant told Corporal Kistle that he had been living at the

apartment complex in Honey Brook for five years. Appellant

confirmed to Corporal Kistle that he would take the neighborhood

children, including S.S. and her sister Sk.S. to the park. He

agreed that no other adults accompanied him and the children to

the park. He told Corporal Kistle that he and the children had a

good relationship, that he was, as he said, “attracted” to all of

their personalities, and that he took care of them. He denied any

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sexual attraction to the children. Defendant denied ever touching

or kissing S.S., but stated he hugged her once to comfort her

when she was crying.

Later in the interview, Corporal Kistle again asked Appellant if he

ever kissed S.S. This time, Appellant admitted that he had.

Corporal Kistle asked if he kissed S.S. on the lips. Appellant said

that he did one time because she was crying. Corporal Kistle

asked Appellant if he ever touched S.S.’s vagina. Appellant said,

“no.” Corporal Kistle asked Appellant if there would ever have

been a reason why his hand might have been near S.S.’s vagina.

Appellant stated that “maybe his hand would be down there if he

needed to remove a leaf or something from her leg or something

of that nature.”

Corporal Kistle asked Appellant if he ever asked S.S. or said to

her, “will you marry me?” Appellant told Corporal Kistle that he

did it “a few times” because he wanted to see her turn red and

that it was just a joke. He denied ever touching S.S.’s buttocks.

He told Corporal Kistle that if he and S.S. passed in the doorway

it was possible that his hand may have touched her chest.

Appellant admitted to Corporal Kistle that he would sometimes

drink “lightly” in the children’s presence, but would leave drinking

more heavily until he was inside his house. Corporal Kistle

identified Appellant at trial and testified that he was over the age

of eighteen. The defense stipulated as to Appellant’s age.

Over the ensuing months, this case was prepared for trial. At the

end of September 2018, while Mother was having a conversation

with S.S. about the upcoming trial scheduled for October of 2018,

S.S. began crying and told her mother that she had “lied.” Mother

testified that she thought perhaps her daughter was lying about

everything. S.S. said, “[N]o, mom. I lied. He actually went inside

of me, but I didn’t want to get him in trouble.” Mother called the

prosecutor and informed her of S.S.’s new disclosure. The

Commonwealth had S.S. forensically interviewed regarding the

new allegation.

Detective Christine Bleiler is employed by the Chester County

Detectives in their Child Abuse Unit. She is a trained forensic

interviewer. Part of her duties involve aiding the Pennsylvania

State Police by doing forensic interviews of children in child abuse

cases.

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Detective Bleiler interviewed S.S. regarding the new allegations

on October 2, 2018. S.S. was eleven years old at the time of their

interview. Detective Bleiler’s October 2, 2018 interview with S.S.

was audio-visually recorded. During this interview. S.S. told

Detective Bleiler that on one occasion in Appellant’s apartment,

S.S. entered the bedroom of her friend, B.B., Appellant’s

grandson, where she encountered a naked Appellant, who then

removed her clothes, threw her on the bed, covered her mouth,

and inserted something into her vagina that caused her pain.

Detective Bleiler confirmed that in the course of her interview with

S.S., the child had told her that during this incident, she could

smell alcohol on Appellant’s breath. Detective Bleiler also testified

that S.S. told her during this interview that she had told her

mother that Appellant would “always put his tongue down my

throat like a regular man would always do.” S.S.’s new allegations

against Appellant gave rise to the addition of two new charges of

Aggravated Indecent Assault by way of the Amended Information.

This case was ultimately brought to trial in early March of 2019.

S.S. testified at trial. She corroborated her mother’s account of

how all of these revelations first came about. She remembered

speaking with Trooper Baton in March 2016. She testified that

she spoke with Trooper Baton about Appellant, whom she

identified in court. S.S. testified that although she remembered

talking to the police, by the time of trial she did not remember

everything she had told them.

S.S. testified that she knew Appellant through playing with his

grandchildren, in particular, his grandson B.B., also minors. S.S.

testified that Appellant would take her and all of her friends to the

park after she did her homework. She said that he did this “every

other day or so.” She testified that her mother was not home

during these times. S.S. confirmed that no other adults went to

the park with Appellant and the children. She testified that

Appellant would tell her she was pretty.

S.S. explained some of the incidents that had occurred between

herself and Appellant. She stated,

Whenever I was like a little bit behind the kids because

I used to not like to run around, I still don’t, [s]ince I

was behind them a little bit, he would try kissing me

and I did not know what to do because I was younger

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and I was confused. And at the time, he was always

drinking at the time. And then, like, that happened at

the park and then he, like, kept doing that every time

we went to the park. Sometimes he would do that

when I was inside their house too.

N.T. at 109-110. S.S. testified that she was approximately eight

years old when these incidents happened.

S.S. testified that when Appellant tried to kiss her, it would always

occur near the park’s swings because she would be lagging behind

as the other children ran off. She testified that Appellant used his

tongue and held her head when he kissed her. She said that

during these incidents, Appellant would only kiss her on the

mouth. She said this happened “almost every time we went to

the park.”

S.S. testified that Appellant also touched her vagina and other

body parts over her clothes when the two were alone together in

the kitchen of his house. S.S. testified that she always told J.T.

about these incidents but they were afraid to tell anyone because

they were worried that they might ruin their friendship with B.B.,

Appellant’s grandson. After she made her first disclosures to the

police, she in fact was no longer permitted to socialize with him

and they are not friends anymore. J.T. remains friends with

Appellant’s grandson. S.S. testified that she remembered

Appellant telling her that the two of them should get married and

that he would love to marry her.

With regard to the incident forming the basis of the two new

charges of Aggravated Indecent Assault, S.S. testified that she did

not tell anyone about this event until she confided in her mother

in March 2016. She explained at trial that the incident giving rise

to these charges occurred at Appellant’s apartment in Honey

Brook, where her friend B.B. lived. As she related:

I was, like, in the kitchen getting a drink and I did not

know where [Appellant] was or [B.B.] because they

went outside after I, like, walked in the living room, I

think. So, I went back near his rooms to, like, find

him. And when I went in the one room he—

[Appellant] was in there and then all I remember is

him taking off my clothes. And then all I know is that

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he was on top of me, but I don’t know, but something

did go inside of me and I don’t know what it was.

N.T., 3/5/19, 116-17, 118.

S.S. said that she had not seen Appellant holding any item in his

hand when he climbed on top of her. N.T. at 120. S.S. said the

room that she had gone into was B.B.’s room. N.T. at 117. She

said Appellant had been naked. N.T. at 118. As she further

described, “[A]ll I remember is, like, I ended up on the bed, and

then, like, all I saw was him moving and I felt something and it

was, like, painful and—but I don’t know what it was.” N.T. at 118.

She said she was lying on her back on the bed. N.T. at 118-19.

She testified the pain she felt was in her vagina. N.T. at 119. She

testified that whatever was causing her pain was moving. N.T. at

120. S.S. said this incident occurred “a couple of years before I

told the cops,” but that she couldn’t recall exactly how old she

was. N.T. at 120-21. She testified that during this incident she

could smell the odor of beer. N.T. at 122. S.S. testified that she

has had to change schools since these allegations arose because

her peers were writing on the bathroom walls that she was raped

and that they hoped she would lose in court. N.T. at 142-43.

...

The Commonwealth next introduced the testimony of the victim’s

older sister, Sk.S., who was fourteen years old at the time. Sk.S.

corroborated S.S.’s testimony that Appellant would take her and

the other neighborhood children to the park every other day. She

also said sometimes Appellant would come to her cousin’s house

just to “hang out” with the children.

Sk.S. corroborated that no other adults accompanied Appellant

and the children to the park. She testified that when they were

at the park she observed several times Appellant would grab her

sister’s buttocks with his hands, pull her to the side of the group

and whisper in her ear. She said he would pull S.S. “pretty distant

from everybody else.” Sk.S. stated that she heard Appellant keep

asking her sister to marry him and that he tried getting S.S. to

“go in the bed with him.” N.T. at 159.

She testified that she saw Appellant grab S.S.’s head, pull her

towards him, and try kissing S.S. on the lips multiple times. Sk.S.

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said that Appellant would pull S.S. away from the other children

most of the times they went to the park.

...

Sk.S., on cross-examination, agreed that Appellant had never

forced S.S. to go to the park. Sk.S. testified that she too has had

to switch schools because of these incidents because her peers

were telling her to kill herself.

The Commonwealth next presented the testimony of thirteen

year-old K.M., S.S.’s and Sk.S.’s friend and schoolmate. K.M.

testified that Appellant hugged her once or twice and would tell

her that she was “looking good today.” She also said that

Appellant would sometimes try to kiss her on her head.

...

The defense presented the testimony of two witnesses on

Appellant’s behalf, one of whom was Appellant himself. The first

witness was Elizabeth Hillenbrand, who lived in the same

apartment complex as Appellant, the victim, and the victim’s

family lived at the time of these events. Ms. Hillenbrand testified

the victim and her sister were always left alone. Their father was

incarcerated and their mother was never home.

...

Appellant, who was 58 years old at the time of trial, testified on

his own behalf at trial. Appellant denied having any sexual contact

with S.S. and Sk.S. He admitted to taking the neighborhood

children to the park and other places in Honey Brook. He testified

that he had a triple bypass in 2014 and that later, in 2015, he

went back to the hospital for surgery to have talon clamps

installed in his chest to hold his breast plate together. He

explained that as a result of these events, he would not have had

the strength to pick someone up and carry them, or to squeeze

someone in a hug or otherwise. He testified that he never took

walks without several children in attendance; that is, he was never

alone with one child when he took these excursions with the

neighborhood children.

...

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Appellant asserted that his common law wife forbade the children

from coming into their apartment. He said that the only child who

was allowed in Appellant’s apartment was J.T., whom he described

as his grandson B.B.’s best friend.

Appellant testified that he is never alone with any one child in the

park. He admitted that he kissed S.S. on the lips one time briefly,

before she was school-aged, when she fell or got hurt in the yard.

He claimed it was an accident that occurred because S.S. moved

her head while he was trying to kiss her cheek. He denied that

the incident S.S. described of him putting something in her vagina

that moved ever happened. He said he has “no desire in kids at

all.” N.T., 3/7/19, at 360. Appellant denied all allegations of

sexual misconduct with any of the children or with children

generally. He did admit that one time, when K.M. came back from

a summer trip to California, he held his hand to his chest, gave

her a hug, and kissed the top of her head.

Appellant admitted that he told Corporal Kistle that it was possible

that his hand may have touched one of the girls’ vaginas while

brushing mulch off of them at the park, but never intentionally.

He again denied that the incident alleged to have occurred in

B.B.’s room with S.S., when she allegedly found him naked and

he had sex with her on the bed, ever happened.

On cross-examination, Appellant testified . . . he would give the

children hugs if they were “down and out” and that he could

remember giving Sk.S. a hug on her birthday. He admitted to

telling Corporal Kistle that he hugged the children, including S.S.

and Sk.S. all the time because he cared about them and they were

“nice little girls” whose father was in jail at the time.

...

The Commonwealth elicited from Appellant on cross that despite

his physical limitations and inability to hug anyone, he was still

able to do chores around the apartment [including laundry,

sweeping and mopping the floors of his apartment, sweeping the

main hallways in the building, picking up trash in the yard and

parking lot and mowing the grass] as well as use a saw and cut

up wood.

Appellant acknowledged on cross with reference to his earlier

testimony regarding his admission that he had once kissed S.S.

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on the lips accidentally that he did not tell the police that this

contact was unintentional, and he did admit to the police that he

would kiss S.S. on the forehead and on the cheek and did, on that

one occasion, kiss her on the lips.

He also confirmed on cross that he told the police that he might

have accidentally touched S.S.’s vagina when he was trying to

remove a leaf or mulch from that area of her body. He confirmed

that he had told the police that his hand might have brushed S.S.’s

chest when they passed each other in the doorway. He admitted

that he would ask S.S. to marry him, but he qualified the

admission by saying that he would tell her “when you get older.”

N.T. at 377. He said that he did this in order to see S.S. blush

and run away. He said he found that “funny.” N.T. at 378. . . .

[Appellant stated] that he believed the four [child witnesses] were

lying and fabricating the events about which they testified[, but

was unaware of any ill motive they may have had to make up

allegations against him].

Appellant agreed that he told police he was “attracted” to the

children, but not sexually. N.T. at 379-80. He said he liked them

because they are his friends. He testified that he “missed my

whole—my son’s whole life while I was away and I like kids.” N.T.

at 380. By the statement that he “likes kids,” he testified that he

meant he liked “to see them having fun.” N.T. at 380.

...

After the Commonwealth withdrew Counts III through VII

[Indecent Assault] and Count X [one count of Aggravated

Indecent Assault], the case went to the jury who, as mentioned

earlier, returned a verdict on March 7, 2019, of guilty on all of the

remaining charges. They specifically found that Appellant had

engaged in a course of conduct with respect to the charge of

Indecent Assault (Victim Under 13 Years Old).

Trial Court Opinion, 6/18/20, at 1-27.

Appellant raises the following issues for our consideration:

1. Did the trial court err in denying Appellant’s pre-trial motion

entitled “Motion for Particularity of Anticipated Proof or Other

Relief?”

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2. Was insufficient evidence presented at trial to support the

conviction on Aggravated Indecent Assault, 18 Pa.C.S.A. §

3125?

3. In creating its sentencing scheme, did the trial court err in

relying upon the Aggravated Indecent Assault conviction that

should have been dismissed as a violation of Appellant’s due

process rights pursuant to Article I, Section 9 of the

Pennsylvania Constitution and the Fifth and Fourteenth

Amendments to the United States Constitution or for

insufficient evidence presented at trial? Did the court’s

consideration of this criminal conduct in formulating its overall

sentencing scheme result in an inappropriate sentence

imposed on all counts?

4. Did the trial court impose an illegal sentence on Count 8,

Corruption of Minors?

5. Should this case be remanded to accurately reflect a single

count of Aggravated Indecent Assault?

Appellant’s brief, at 5.

In Appellant’s first issue, he maintains that the trial court erred in

denying his “Motion for Particularity of Anticipated Proof or Other Relief,” filed

on February 22, 2019, in response to the Commonwealth’s amended Criminal

Information of January 15, 2019, which added two counts of Aggravated

Indecent Assault, 18 Pa.C.S.A. § 3125(a)(1)(b) and (a)(7). We review the

trial court's decision to grant or deny a motion to quash a criminal information

or indictment for an abuse of discretion. Commonwealth v. Wyland, 987

A.2d 802, 804 (Pa. Super. 2010) (citations and quotation marks omitted). A

reversal of the trial court's order will be granted only where the trial court has

clearly abused its discretion. Id.

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Appellant’s motion asked the trial court to enter an order directing the

Commonwealth to supply sufficiently specific evidence to place him on notice

of the events or timing of the Aggravated Indecent Assaults with which he was

charged, and to bar the Commonwealth from presenting such evidence if it

was unable to do so. In particular, the motion stated Appellant faced

prosecution “for crimes alleged to have happened at an unspecified time, and

as to which [Appellant] is incapable of knowing if he has defenses including,

for example, by an alibi.” Motion for Particularity, 2/22/19, at 3. Because the

two new charges of Aggravated Indecent Assault stemmed from a single,

distinct incident, different in character from the course of conduct alleged in

the original Information, the motion continued, specificity with respect to the

time of the event was necessary.

The trial court denied Appellant’s motion by Order of March 4, 2019, as

it rejected Appellant’s contention that the incident forming the basis for the

two Aggravated Indecent Assault charges was a “stand-alone occurrence

differentiated from the continuous course of conduct outlined in the original

information.” Motion for Particularity, at 3. The court also weighed in favor

of denying Appellant’s motion the fact that the victim was a young child of

tender years during the two-year course of alleged sexual abuse, which further

required some leeway in setting the time frame for all the offenses charged.

The trial court determined such findings warranted denial of the motion

under Rule of Criminal Procedure 560(B)(3), which provides an information

must contain

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The date when the offense is alleged to have been committed if

the precise date is known, and the day of the week if it is an

essential element of the offense charged, provided that if the

precise date is not known or if the offense is a continuing one, an

allegation that it was committed on or about an date within the

period fixed by the statute of limitations shall be sufficient[.]

Pa.R.Crim.P. 560(B)(3). The conduct alleged in the Amended Information,

the filing of the charges, and the prosecution of the case all occurred within

the statute of limitations.

Appellant claims that the Commonwealth’s Amended Information, which

gave slightly more than a two-year time-frame for the underlying act in

question, offered insufficient chronological specifics of the at-issue aggravated

sexual assault. On this point, Appellant cites precedent wherein our Supreme

Court has held that a failure of the Commonwealth to place the date of an

alleged crime with “reasonable certainty” can create due process concerns by

constraining a defendant’s ability to prepare a defense. See Commonwealth

v. Devlin, 333 A.2d 888, 890-91 (Pa. 1975) (concluding Commonwealth’s 14-

month time frame for commission of offense failed to meet the sufficient

particularity standards set by precedent, and to “hold otherwise would violate

the notions of fundamental fairness embedded in our legal process.”).

This Court, however, has stated the following regarding Devlin claims

involving child victims:

We conclude that for purposes of a Devlin claim, 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. See

Commonwealth v. Fanelli, [547 A.2d 1201, 1203 (Pa.Super.

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1988) (en banc)]; Commonwealth v. Niemetz, [ ] 422 A.2d

1369 ([Pa.Super.] 1980). On the other hand, in order to ensure

a fair trial for the defendant, the Commonwealth should conduct

a thorough examination and come forward with any evidence

which indicates when the alleged crime is most likely to have

taken place.

Commonwealth v. Groff, 548 A.2d 1237, 1241 (Pa.Super. 1988).

Relatedly, this Court also has observed, “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.

G.D.M., Sr., 926 A.2d 984, 990 (Pa.Super. 2007) (quoting Groff, 548 A.2d

at 1242). This is especially true when the case involves sexual offenses

against a child victim. Commonwealth v. Brooks, 7 A.3d 852, 858

(Pa.Super. 2010), appeal denied, 21 A.3d 1189 (Pa. 2011). A child

victimized in this fashion cannot be expected to remember each and every

date upon which she was victimized, particularly where the events are

numerous and occur over an extended period of time. See Niemetz, 422

A.2d at 1373 (Pa.Super. 1980) (“[W]e do not believe that it would serve the

ends of justice to permit a person to ... sexually abuse [a] child with impunity

simply because the child has failed to record in a daily diary the unfortunate

details of her childhood.”).

In Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), at

issue was an indictment charging defendant with Involuntary Deviate Sexual

Intercourse, Aggravated Indecent Assault, Indecent Assault, and Corruption

of Minors in connection with the repeated sexual assault of a minor child

occurring “from June 2007 to February 2008.” This Court concluded the

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indictment’s failure to fix the dates of the offenses with more particularity did

not amount to a due process violation, as Rule 560(B)(3) allowed for an

allegation of offenses “committed on or about any date” within the limitations

period, the defendant’s ability to prepare a defense was not impaired, and the

charges arose from an ongoing pattern of sexual abuse. Riggle, 119 A.3d at

1069-70.

Viewing the allegations presented by the Commonwealth’s Amended

Information in light of this deferential precedent, we find Appellant’s argument

meritless. The Commonwealth provided Appellant with a discrete time frame

in which the sexual assaults were alleged to have occurred, namely, between

January 8, 2014 and March 3, 2016. Appellant asserts, however, that the

single alleged episode forming the basis for the Aggravated Indecent Assault

charge should not be viewed as one of the occurrences constituting a course

of sexual assaults and abuses spanning the 26-month timeframe presented in

the Information, as it stands alone in its severity relative to the remaining

offenses with which he is accused of committing.

We discern no basis in our precedent for excising the most invasive act

of sexual assault from an alleged course of sexually abusive conduct suffered

by a young child at the hands of a serial offender and applying a different

notification requirement for that alleged act. The Informations at issue clearly

alleged numerous episodes each of fondling the child’s vagina and buttocks

over clothing, forcible kissing involving penetration with the tongue, uninvited

hugs, and constant verbal advances and innuendos, all allegedly perpetrated

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by a 58 year-old man who abused his trusted position of child-sitter by singling

out S.S. from the group and menacing her over a 26-month period. Part of

this arc of alleged abuse is the allegation that Appellant penetrated S.S.’s

vagina with a part of his body.

Fixing the times of a course of sexually abusive conduct, as was done in

the instant matter, satisfies the due process concerns expressed in our

jurisprudence. As discussed, supra, it is well-established that young victims

such as S.S. possess inferior abilities to appreciate and understand the

significance of time, which adversely affects the temporal precision of their

accusations within a long timeline of abuse. See G.D.M., Sr., 926 A.2d at

990 (recognizing preschool and early elementary school age victims are not

expected to remember exact dates, as they do not have lives revolving around

the calendar; to require such detail from them “would be to give child

predators free rein.”). Moreover, Appellant failed to demonstrate how the

asserted lack of specificity in the Commonwealth’s Informations prejudiced his

ability to defend himself.

Given the particular circumstances of this case, we conclude the

Amended Information containing allegations forming the basis for aggravated

indecent assault charges sufficiently provided a reasonably certain time frame

to permit Appellant to prepare his defense. No relief is due on this claim.

In his second issue, Appellant argues that the Commonwealth presented

insufficient evidence to support his conviction on Aggravated Indecent Assault,

which requires penetration by the offender’s body, because S.S. testified she

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was unsure of precisely what had entered her vagina when a naked Appellant

undressed her, placed her on a bed, lay on top of her, and started moving

something inside of her. N.T., 3/5/19, at 118-119. Section 3125(a)(1)(b),

Aggravated Indecent Assault, provides:

(a) Except as provided in sections 3121 (relating to rape),

3122.1 (relating to statutory sexual assault), 3123 (relating

to involuntary deviate sexual intercourse) and 3124.1

(relating to sexual assault), a person who engages in

penetration, however slight, of the genitals or anus of a

complainant with a part of the person’s body for any

purpose other than good faith medical, hygienic or law

enforcement procedures commits aggravated indecent

assault if:

(1) The person does so without the complainant’s

consent;

…

(b) Aggravated indecent assault of a child. –A person commits

aggravated indecent assault of a child when the person

violates subsection (a)(1), (2), (3), (4), (5) or (6) and the

complainant is less than 13 years of age.

18 Pa.C.S.A. § 3125(a)(1)(b) (emphasis added).

Appellant concedes the Commonwealth’s proffer would have sufficed

had S.S. testified that he penetrated her digitally, with his tongue, or with his

penis, but he posits that without such specific testimony, the most the

Commonwealth proved at his trial was Involuntary Deviate Sexual

Intercourse, as the jury could not reasonably exclude the possibility that

Appellant accomplished penetration with an object. We disagree.

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When considering a challenge to the sufficiency of the evidence, “we

must determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crime charged is

established beyond a reasonable doubt.” Commonwealth v. Green, 204

A.3d 469, 484 (Pa.Super. 2019) (citing Commonwealth v. Dale, 836 A.2d

150, 152 (Pa.Super. 2003)). The Commonwealth may carry its burden of

proof entirely through circumstantial evidence, id. at 484-85, and the

evidence “need not preclude every possibility of innocence,” see

Commonwealth v. Knox, 219 A.3d 186, 195 (Pa.Super. 2019), appeal

denied, 228 A.3d 256 (Pa. 2020). In reviewing the sufficiency of the evidence,

we will not substitute our judgment for that of the factfinder, who is free to

believe all, some, or none of the evidence. Id.

At trial, S.S. testified she was playing with her friend B.B. in Appellant’s

apartment when she entered B.B.’s bedroom to find Appellant standing there.

N.T. at 118. She could not recall when, exactly, Appellant undressed, but she

testified he was naked when he removed her clothing and put her on her back

atop the bed:

PROSECUTOR: And when you walked in, [Appellant] took your

clothing off. What happened next?

S.S.: And then all I remember is, like, I ended up on the bed, and

then, like, all I saw was him moving and I felt something and it

was, like, painful and -- but I don’t know what it was.

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PROSECUTOR: When you were on the bed, were you sitting,

laying [sic], or something else on the bed?

S.S.: I was laying [sic] there.

PROSECUTOR: And where was [Appellant]?

S.S.: He was, like, getting on the bed when I was on there.

PROSECUTOR: Were you [lying] on your front side, backside,

or your actual side?

S.S.: I was [lying] on my back.

PROSECUTOR: And when [Appellant] was getting on the bed,

where did [Appellant] go?

S.S.: He just went on top of me.

PROSECUTOR: Was he facing you or was he looking away from

you?

S.S.: I don’t remember.

PROSECUTOR: So you’re [lying] on your back and [Appellant]

was on top of you?

S.S.: Yes.

PROSECUTOR: Did [Appellant] say anything to you?

S.S.: Not that I can remember.

PROSECUTOR: And were you completely naked when this was

happening?

S.S.: I don’t remember.

PROSECUTOR: Can you tell us what exactly you felt?

S.S.: All I felt was something painful. I just felt pain.

PROSECUTOR: Where on your body did you feel pain?

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S.S.: In my vagina.

PROSECUTOR: When you felt that pain, you said you don’t

know what was causing that pain?

S.S.: Yes.

PROSECUTOR: But whatever was causing you pain, can you

describe if it was moving, still, or something else?

S.S.: It was moving.

PROSECUTOR: Was [Appellant] saying anything when this was

happening?

S.S.: No.

PROSECUTOR: Did anyone come into the room when this was

happening?

S.S.: No, because they were still outside playing.

PROSECUTOR: Did you say anything to [Appellant] when this

was happening?

S.S.: I don’t remember.

PROSECUTOR: What were you thinking in that moment?

S.S: I was confused and wondering what was going on and, like,

why this was happening.

PROSECUTOR: If you remember, do you know how long it

lasted?

S.S.: No, I do not remember.

PROSECUTOR: Was [Appellant] holding any item in his hand?

S.S.: Not that I saw.

PROSECUTOR: Did [Appellant] bring anything into the bed with

him?

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S.S.: No.

N.T. at 118-120.

Viewed in a light most favorable to the Commonwealth as verdict-

winner, the evidence established beyond a reasonable doubt that Appellant

penetrated S.S’s vagina with either his finger or penis. S.S. was unsure about

some aspects of the event she described, such as where her friends were at

the time, whether Appellant spoke during the act, whether he looked at her

or looked away, and how long the act lasted.

She expressed certainty, however, that she saw no object in Appellant’s

hands when she entered the room, and that Appellant brought no object with

him to bed. According to her testimony, he lay on top of her, slid something

into her vagina that caused her continuing pain, and moved it around.

The reasonable inference to be formed from the totality of such

testimony was that Appellant had placed a part of his body inside the child’s

vagina. We conclude, therefore, that the evidence sufficed to support

Appellant’s conviction of Aggravated Indecent Assault as charged. Appellant’s

claim to the contrary is without merit.

Appellant’s third issue challenges the sentencing scheme to the extent

it relied in part on the Aggravated Indecent Assault conviction that he

unsuccessfully has challenged in the present appeal. By Appellant’s own

admission, the necessary predicate to this sentencing issue is the dismissal of

the Aggravated Assault charge and conviction against him: “If this Honorable

Court finds, as Appellant has suggested above, that the Aggravated Indecent

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Assault count should have been dismissed . . ., Appellant argues that the

entirety of the sentencing scheme formulated in this case should be vacated.

. . . Appellant’s brief, at 46. As we have determined the Aggravated Assault

conviction was proper, it follows that Appellant’s present sentencing claim

cannot prevail.

Next, Appellant contends that his aggregate sentence comprises an

illegal three-to-six year sentence on Count 8, Corruption of Minors, a charge

which, he maintains, was withdrawn by mutual understanding of the parties

and the trial court prior to closing arguments and jury instructions. While the

record shows that the Commonwealth announced its withdrawal of a series of

enumerated counts, including count “8”, a review of the entire proceedings

relevant to this issue plainly shows the inclusion of Count 8 in this oral

recitation was mistaken.

The exchange at issue follows:

THE COURT: Before I bring in the jury, Commonwealth, do

you want to address the charges that are being changed on the

record?

PROSECUTOR: Yes, Your Honor. Commonwealth is now making

a motion to withdraw Counts 3, 4, 5, 6, 7 and 8, and also Count

10.

THE COURT: Defense?

DEFENSE COUNSEL: We have previous notice and we agree.

That’s without objection.

THE COURT: All right. So, the withdraw[al] of said Counts is

approved by the Court. So, three through eight and ten have been

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withdrawn and that is approved. All right. Otherwise, are we

ready to close? Can I bring the jury in?

PROSECUTOR: Yes, Your Honor.

N.T., 3/7/19, at 391.

Presently, there is no dispute that Count 8 was the Corruption of Minors

charge and the number “8” was included in the above statement of counts to

be withdrawn. What is also beyond any reasonable dispute, however, is that

every other action and proceeding relating to the charges against Appellant

specifically confirm that the single count of Corruption of Minors remained one

of the four charges to be handed to the jury for its deliberation at the end of

trial.

Initially, Appellant admits that the prosecutor did not formally withdraw

the Corruption of Minors charge by writing next to its place on the Criminal

Information the word “withdrawn”—along with the date and her initials—as

she did with charges one through seven and 10. Appellant’s brief, at 52.

Moreover, at the charging conference, which took place just moments

before the statement of withdrawn counts in question, the court verified that

the parties had agreed upon the Corruption of Minors jury instruction. “The

attorneys and I have met at length regarding the proposed instructions and

the following is the end result of said conference.” N.T. at 385. The agreed-

upon instructions to the jury were discussed, and, in relevant part, the court

announced the jury instruction to be given for the Corruption of Minors charge:

“15.6301(A), corruption of minors, paragraph one – 1(c), the descriptive

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language, to be given along with that shall be ‘by having sexual contact with

her,’ also by agreement.” N.T. at 387.

Additionally, during closing arguments, the Commonwealth began by

providing the jury with an overview of its proffer with respect to the four

charges prosecuted. “Here are the four charges. First and foremost we have

solicitation to commit rape of a child. Secondly, we have indecent assault of

a child. The third charge is aggravated indecent assault of a child. And the

fourth charge is corruption of minors.” N.T. at 391.

After discussing each of the first three charges, the prosecutor turned

to the Corruption of Minors charge:

PROSECUTOR: I’m going to move onto the last crime and that

is corruption of minors. Corruption of minors in Pennsylvania is a

very broad statute. This can encompass any action. It doesn’t

even have to be a criminal action. It just a [sic] has to be some

sort of action that an adult, somebody over 18 years old, does to,

or with, or for a child or someone under 18 years old and that

action in and of itself corrupts the morals of a minor.

So, [Appellant] is over 18 years old. You may have wondered why

I asked Corporal Kistle if she remembered if the defendant is over

18. That’s why I asked that. [S.S.] was under 18. We know she’s

under 18. I submit to you sexually assaulting a child as young as

seven, eight years old, asking a child that young to marry you

corrupted her morals.

N.T. at 422-23.

Defense counsel presented his closing argument, after which the court

gave the jury a short break. During this time, the parties and the court

reviewed the verdict slip, which also contained the corruption of minors

charge. N.T. at 434-438.

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Finally, when the jury returned from break, the court delivered its jury

charge, which included the agreed-upon instruction for corruption of minors:

THE COURT: [Appellant] has also been charged with

corruption of a minor. To find [Appellant] guilty of this offense,

you must find that each of the following three elements has been

proven beyond a reasonable doubt. First, that [Appellant] was 18

years of age or older at the time of the incident giving rise to the

charge. Second, that [S.S.] was under 18 years of age at that

time. And third, that [Appellant] corrupted or intended to corrupt

the morals of [S.S.] by having sexual contact with her.

N.T. at 459-60. Upon completing the charge, the court asked counsel if they

had any objections to either the jury charge or the verdict slip, to which

defense counsel responded he did not. N.T. at 461.

Here, Appellant centers his legality of sentence challenge on the fact

that he was convicted and sentenced on a count that the prosecutor had

earlier included in a series of counts, identified by number only, to be

withdrawn. Notably, Appellant does not contend that the Commonwealth gave

notice of its intent to withdraw the corruption of minors charge by name.

He even acknowledges “that possibly the prosecutor could have simply

misspoken [and] the parties did not take notice of this error.” Appellant’s

brief, at 53. He contends, however, that the particular way the prosecutor

listed the withdrawn counts undermines the possibility of mistake: “In

phrasing it to the court as we are withdrawing three through seven, and count

8 and count 10, it seems the prosecutor was deliberately withdrawing the

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Corruption of Minors charge and not simply mistaking count 8 for another

count of Indecent Assault.” Id.1

We derive no such insight from the prosecutor’s manner of reciting the

series of numbers withdrawn. In fact, though we deem Appellant’s point in

this regard a relatively minor one, we note our disagreement with his

characterization of how the prosecutor listed the counts, as she did not

segregate count 8 from counts 3 through 7. As the above-quoted excerpt

shows, she listed each count by number separately, from 3 to “7 and 8, and

also 10.” Indeed, even the trial court appeared to understand the series

beginning with “3” included count “8”, as it acknowledged, “So, three through

eight and ten[.]” N.T. at 3/7/19 at 391.

Because the trial record establishes that the Corruptions of Minors

charge was not formally withdrawn, and given how the Commonwealth and

court otherwise appropriately developed for the jury’s benefit both the trial

record and the jury instruction relating to the Corruption of Minors charge, we

need not assign much significance to Appellant’s present argument. Indeed,

other than citing to the general proposition that a legality of sentence claim

may be raised for the first time in a timely appeal, Appellant develops no

argument, let alone one with citation to authority, bearing on the

consequences of an apparent misstatement of withdrawing a charge that, by

____________________________________________

1 Whereas Appellant places a comma after the “7” in his reproduction of the

notes of testimony, the notes of testimony do not, in fact, include such a

comma setting off the number 7 from the words “and 8” that follow.

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every other indication in the record, continued to be prosecuted openly and

actively without confusion, surprise, or objection.

Our jurisprudence recognizes legality of sentencing claims based on

errors with the sentence that are either patent or apparent upon consideration

of the record. See, e.g., Commonwealth v. Holmes, 933 A.2d 57, 67 (Pa.

2007) (recognizing trial court's inherent power of correction encompasses not

only patent and obvious errors that appear on the face of an order, but also

errors that emerge upon consideration of information in the record). This is

not such a case. Careful consideration of the record before us dispels any

reasonable concern that Appellant was prosecuted, convicted, and sentenced

on a withdrawn charge. The present issue is, thus, utterly without merit.

In Appellant’s final issue, he submits the trial court imposed an illegal

sentence on his conviction for a single count of Aggravated Indecent Assault

because the sentencing sheet bifurcates the single count, which comprises

subsections (a)(1) and (b) of the statute, into two counts—Count IX and Count

XI—with each count containing one of the subsections for the sole purpose of

accommodating an apparent idiosyncrasy in the county’s case management

system. Among Appellant’s concerns is that the sentencing sheet creates a

false portrayal of his having been convicted of two counts of Aggravated

Indecent Assault, an inaccuracy that may produce future adverse

consequences. He asks that we vacate sentence and remand to allow the trial

court to correct the docket and sentencing sheet.

For its part, the trial shares Appellant’s concerns:

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After the Commonwealth withdrew the Aggravated Indecent

Assault charge at Count X, there was only one (1) remaining

Count of Aggravated Indecent Assault, Count IX. This remaining

Aggravated Indecent Assault was charged in one count of the

Information under the following subsections: 18 Pa.C.S.A. §

3125(a)(1) and (b). However, it remained only one (1) charge of

Aggravated Indecent Assault. It was presented to the jury as one

(1) count of Aggravated Indecent Assault, and the jury found

[Appellant] guilty of this one (1) count of Aggravated Indecent

Assault.

However, because of the two (2) separate subsections of 18

Pa.C.S.A. § 3125 involved, each of which were part of the one (1)

offense of Aggravated Indecent Assault and were required to be

proven together in order to establish the single crime as charged

here, on the Sentencing Sheet, the two (2) subsections of

Aggravated Indecent Assault were separated and assigned

different count numbers. Subsection 3125(a)(1), the “lack of

consent” portion of the charge, was listed as Count IX, and a

Count XI was added, only for sentencing purposes, to incorporate

the “victim under 13 years of age” portion of the charge. Count

IX was deemed to merge into Count XI, and thus a sentence was

only imposed on Count XI.

However, the Information did not charge a Count XI, only a Count

IX, and the jury was only presented with the Aggravated Indecent

Assault as charged in Count IX of the information. In writing this

Opinion, we questioned the propriety of addressing the different

subsections of § 3125 in this manner, as we read subsection (b)

as only a grading enhancement for the substantive crime set forth

in subsection (a)(1), and so we convened a conference between

counsel and the Court on June 11, 2020 to determine what, if

anything, could be done to correct what appeared to be a patent

error in the Sentencing Sheet.

Counsel agreed with our interpretation of subsection (b);

however, it was indicated that the division of the offense into

separate counts for purposes of sentencing was required in order

to code the offense into CPCMS. The prosecution contacted the

AOPC and did not receive a definitive answer with respect to the

question of how Aggravated Indecent Assault under section

3125(a)(1) with the grading enhancement at section 3125(b)

ought to be treated for purposes of coding on CPCMS. We

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confirmed with our Clerk of Courts and the staff at CPCMS,

however, that separation of these subsections into different, albeit

manufactured, counts is the method used to ensure that the single

offense of Aggravated Indecent is properly coded into CPCMS.

While we are still not persuaded that breaking the subsections

down into two (2) counts of Aggravated Indecent Assault is a

proper treatment of the single offense, particularly as it may

impact an outside observer’s understanding of the [Appellant’s]

prior record and number of present offenses of which he was

convicted, it appears that there is little we can do to change the

practice at this point, given the information we have received from

our Clerk of Courts and CPCMC. We have also been advised by

our Clerk of Courts that this case has been placed under the

auspices of Limited Access through the Clean Slate Limited Access

statute. See 18 Pa.C.S.A. §§ 9122.1, 9122.2, and 9122.3. We

did not issue an Order declaring this case to be a Limited Access

case under these statutes, and our reading of the statutes indicate

that sexual offenses are excluded from the ability to seek the

protections of these statutes. Id.

Our Clerk of Courts has indicated that this Limited access status

is another hindrance to our ability to amend the Sentencing Sheet

to reflect the actual manner in which the single crime of

Aggravated Indecent Assault was charged and found by the jury.

Because it appears at this time that we are unable to achieve a

more accurate reflection on the Sentencing Sheet of the charge

and the verdict, at least not without severely delaying the

progress of this appeal, we are keeping the Sentencing Sheet the

way it stands at present, with the single offense of Aggravated

Indecent Assault under subsections 3125(a)(1) and (b) as

separate counts, with the indication that Count IX, reflecting the

lack of consent portion of the charge, merged into Count XI , the

separate count manufactured to permit the single offense to be

properly coded in CPCMS. However for purposes of this Opinion,

we are referring to the single count of Aggravated Indecent

Assault as Count IX, as that is how it was charged in the

Information and presented to the jury.

Trial Court Opinion at 5-6 n.3

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It is beyond dispute that while Appellant was found guilty of, and

sentenced on, one count of Aggravated Indecent Assault, both his sentencing

sheet and criminal docket list two counts of Aggravated Indecent Assault.

Though we are sympathetic to the electronic case management difficulties

that have apparently arisen with cataloguing Appellant’s count under Section

3125(a)(1)(b), it would seem beyond all peradventure that the solution cannot

be to add to his sentencing sheet a fictitious, second criminal count that never

even appeared as a charge on the criminal information. Given the trial court’s

serious reservations regarding this process, which came to its attention only

after it was without jurisdiction to remedy the matter, we find the most

appropriate course is to remand to permit the court to ensure that Appellant’s

certified record generally, and sentencing sheet specifically, lists Count IX as

his sole conviction of Aggravated Indecent Assault.

Judgment of sentence is affirmed in all respects except for the certified

record’s and sentencing sheet’s listing of two aggravated indecent assault

convictions for purposes of cataloguing the sole count, Count IX, on which

Appellant was convicted and sentenced. Case remanded to correct the record

and sentencing sheet in this regard. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/21

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