HomeMy WebLinkAboutCP-21-CR-0002300-2013
COMMONWEALTH : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CP-21-CR-2300-2013
:
V. : CHARGES: (1) UNLAWFUL CONTACT
: WITH MINOR
: (2) CORRUPTION OF MINORS
: (4) INDECENT ASSAULT
: (5) INDECENT ASSAULT
:
MICHAEL ANDREW NOLL : AFFIANT: PTL. MATTHEW ROBERTS
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Peck, J., February 6, 2015.
On January 29, 2014, after a jury trial, Defendant was found guilty at Count 1,
Unlawful Contact with Minor, a felony of the third degree, at Count 2, Corruption of
Minors, a misdemeanor of the first degree, at Count 4, Indecent Assault – without
consent, a misdemeanor of the second degree, and at Count 5, Indecent Assault –
complainant less than 16 years old and Defendant 4 or more years older, a misdemeanor
1
of the second degree. On November 3, 2014, following a hearing held on October 30,
2014, we found Defendant to be a sexually violent predator as defined in 42 Pa C.S. §
2
9799.12. On November 4, 2014, Defendant was sentenced at Count 1, pursuant to the
3
mandatory minimum set forth at 42 Pa.C.S. § 9718.2, to undergo imprisonment in a
state correctional facility for not less than 25 years nor more than 50 years, to pay the
costs of prosecution and a fine of $100, and to submit a DNA sample, at Count 2 to
undergo imprisonment in a state correctional facility for not less than 1 year nor more
than 2 years, to run concurrently to the sentence imposed at Count 1, and to pay the costs
1
Order of Court, In Re: Verdict/Appear for Sentence (January 29, 2014).
2
Order of Court, In Re: Sexually Violent Predator Determination (November 3, 2014).
3
The Commonwealth provided this Court with certified copies of two of Defendant’s prior convictions. First, on
September 1, 2005, Defendant pled nolo contendere at CP-21-CR-0088-2005 to Indecent Assault, without consent, a
violation of Section 3126(a)(1) of the Crimes Code. On May 17, 2012, Defendant again pled nolo contendere to
Indecent Assault, without consent, a violation of Section 3126(a)(1) of the Crimes Code at CP-67-CR-4981-2011.
We accordingly found by a preponderance of the evidence that Defendant has two prior convictions for purposes of
section 9718.2.
of prosecution, at Count 4 to undergo imprisonment in a state correctional facility for not
less than 25 years nor more than 50 years, to run concurrently to the sentences imposed at
Counts 1 and 2, to the pay the costs of prosecution, and to submit a DNA sample, and at
Count 5 to undergo imprisonment in a state correctional facility for not less than 25 years
nor more than 50 years, to run concurrently to all other sentences imposed at this docket,
4
and to pay the costs of prosecution. On November 14, 2014, Defendant filed post-
5
sentence motions which we denied on November 18, 2014. On December 2, 2014,
6
Defendant filed a Notice of Appeal. In accordance with Pennsylvania Rule of Appellate
Procedure 1925(b), Defendant has filed the following concise statement of matters
complained of on appeal:
1.The Court erred in sentencing Defendant per 42 Pa.C.S. § 9718.2,
since the statute is unconstitutional as set forth in Alleyne v. US, 133
S. Ct. 2151 (2013) and its progeny, and Article I, Section 9, and
Article I, Section 13 of the Pennsylvania Constitution.
2.The Court erred in imposing sentences for two separate counts of
indecent assault, Counts 4 and 5, for a single incident of conduct.
3.The Court erred in imposing a fine without evidence of record or
inquiry thereto regarding Defendant’s ability to pay said fine in
violation of 42 Pa.C.S. § 9726(c).
4.The Court erred in sentencing Defendant separately on unlawful
contact with a minor and indecent assault charges since, under the
facts of this case, those charges should merge for purposes of
7
sentencing.
This Court’s opinion in support of our Order of Court, In Re: Sentence, is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
On August 4, 2013, M.R., a fourteen year old female, spent the day swimming at
the confluence of the Susquehanna River and the Conodoguinet Creek, known as the
4
Order of Court, In Re: Sentence (November 4, 2014).
5
Defendant’s Post-Sentence Motion, filed November 14, 2014; Order of Court, In Re: Defendant’s Post-Sentence
Motion (November 18, 2014).
6
Notice of Appeal, filed December 2, 2014.
7
Concise Statement of the Errors Complained of on Appeal, filed December 23, 2014.
2
8
Point, in Enola, Cumberland County, with friends. She was wearing a tank top and
9
shorts. Around 4:15 p.m. she was approached by Defendant, whom she had seen riding
10
his bike near the river earlier in the day. Defendant approached M.R., introduced
11
himself, and asked her if she was from the area. M.R. told Defendant that she had lived
12
in the area “for like 14 years.” Defendant then asked M.R. if she was 14 years old, to
1314
which M.R. replied, “yeah.” Defendant testified that he was 47 years old at the time.
15
Defendant proceeded to ask M.R. if she knew where a nearby trail led. She explained
that the trail led to the arches of a bridge and then forked, with one prong leading to
16
Enola and a park. Defendant asked M.R. if she would walk with him as far as the
1718
arches. She initially refused, but Defendant persisted and she eventually acquiesced.
19
As M.R. put it at trial, “He repeatedly asked me, and I just got tired of it . . . .”
However, M.R. only agreed to accompany Defendant half way to the arches, where there
20
is a camp site.
When they arrived at the camp site, Defendant sat down, wanting to talk with
21
M.R. for a little while. Because she did not want to stay long, M.R. told Defendant that
22
she had to be home to babysit her sister by 4:30 p.m., even though this was not true.
8
Transcript of Proceedings, In Re: Jury Trial, January 28, 2014 (Peck, J.) (hereinafter “N.T. at __”) at 48-50, 67.
9
N.T. at 60.
10
N.T. at 53-54.
11
N.T. at 54.
12
N.T. at 54.
13
N.T. at 54.
14
N.T. at 179.
15
N.T. at 55.
16
N.T. at 55.
17
N.T. at 55.
18
N.T. at 55-56.
19
N.T. at 56.
20
N.T. at 56.
21
N.T. at 56.
22
N.T. at 56.
3
After talking for a little while with Defendant, M.R. began walking back and Defendant
23
followed. About half way to the trailhead, Defendant sat down again and wanted to
24
talk. M.R. asked Defendant what time it was, and Defendant, after approximately 15
25
minutes, told her it was 4:50 p.m. M.R. said she had to go and that her dad was
26
probably waiting for her. Defendant asked her to stay and talk, and she “was like, oh,
27
my gosh, whatever . . . .” She explained at trial that she stayed because she “was
28
probably a little bit scared.”
29
Defendant began to talk about his penis, telling M.R. how big it was. He then
30
began to grab and squeeze “all up and down” her legs. M.R. was uncertain whether she
31
told Defendant to stop or simply pulled away from him. Defendant also touched
underneath her breasts, the sides of her breasts, and swiped his hand across her breasts,
32
all over her clothes, and lifted up her shirt and touched her stomach. Defendant asked
33
M.R. to turn around, which she did, and then squeezed and bit her butt. Defendant then
told her to put her hands on his bike seat, again she complied, and Defendant put his
34
hands on her hips and pressed his hips and penis against her. M.R. told Defendant to
35
stop, and he did. Then
\[she\] stepped back . . . \[she\] kind of like backed up more, like
\[she\] stayed \[her\] distance from him. And every time – like
23
N.T. at 57.
24
N.T. at 57.
25
N.T. at 57-58.
26
N.T. at 58.
27
N.T. at 58.
28
N.T. at 58.
29
N.T. at 59.
30
N.T. at 59-60.
31
N.T. at 60.
32
N.T. at 60, 84.
33
N.T. at 61.
34
N.T. at 61.
35
N.T. at 62.
4
he would talk to \[her\] and then he would do stuff. But like as
soon as \[they\] saw people coming down the trail, he stopped
36
talking and he stopped touching and all that.
When asked by the Commonwealth if she asked for help from any of the passersby, M.R.
testified that:
\[she\] wanted to but like when – you say when you are in a
situation like that you are going to do it, you are going to
scream for help and stuff. But once you are in a situation, it’s
37
really hard for you to do it, like it gets stuck in your throat.
38
When M.R. attempted to walk away from Defendant, he grabbed her by the arm. She
pulled away, and Defendant got on his bike, blocked her path, and grabbed her by the
3940
arm again. M.R. pulled away again and began walking faster. She finally made it back
4142
to the trailhead where she saw a friend, J.J., fishing. J.J. then walked her home.
M.R. told her father and step-mother what had occurred and subsequently spoke
43
with Sergeant Denelle Craul of the East Pennsboro Township Police Department.
Prior to speaking with M.R., Sergeant Craul was dispatched to the Point in
44
reference to a male harassing a female. After arriving at the Point and speaking with
Dori Powley, a local resident who was looking for Defendant after being informed by J.J.
of what had occurred between Defendant and M.R., Sergeant Craul located Defendant
“laying on the ground on a dirt area with his head propped up on a log. His bicycle was
propped against a tree that was right next to him and he had a black bookbag right next to
36
N.T. at 62.
37
N.T. at 62.
38
N.T. at 63.
39
N.T. at 63.
40
N.T. at 63.
41
N.T. at 64.
42
N.T. at 64.
43
N.T. at 65, 98.
44
N.T. at 100-101.
5
4546
him.” Sergeant Craul asked Defendant for his ID, which Defendant provided.
Sergeant Craul asked Defendant if he had been speaking to any females in the area, and
47
he replied that he had stopped and talked to a couple females and said hi. While
Sergeant Craul was speaking to Defendant, Patrolman Matthew Roberts of the East
Pennsboro Township Police Department arrived at the Point and also spoke with
Defendant. During his testimony at trial, Patrolman Roberts described Defendant as
48
uncooperative.
As Sergeant Craul was returning to her vehicle, she was approached by M.R., her
49
father, and her stepmother and was informed that Defendant had touched M.R. Sergeant
50
Craul then suggested meeting at the police station so she could interview M.R.
After Sergeant Craul interviewed M.R., Patrolman Roberts filed the instant
51
charges against Defendant. Patrolman Roberts also attended Defendant’s preliminary
hearing in this matter and testified at trial that Defendant, after the preliminary hearing
52
had concluded, stated that he did touch M.R. but denied touching her butt or her breasts.
At trial, Defendant testified that he had touched M.R.’s shoulders and rubbed her
53
arms because she appeared to be cold. He denied touching any other body part of M.R.
54
and testified that the conversation between them was not sexual in nature. He also
55
denied biting M.R.’s butt. Regarding M.R.’s testimony that Defendant blocked the path
45
N.T. at 106.
46
N.T. at 109. Defendant’s ID identified him as Michael Noll, born September 30, 1965. N.T. at 109.
Defendant also testified that he was 47 years old in August of 2013. N.T. at 179.
47
N.T. at 109.
48
N.T. at 142.
49
N.T. at 111.
50
N.T. at 111.
51
N.T. at 144.
52
N.T. at 145.
53
N.T. at 169.
54
N.T. at 168, 170.
55
N.T. at 170.
6
with his bicycle to prevent her from leaving, Defendant denied doing so, explaining that
the path is rutted and:
it’s a lot easier for somebody that’s walking than somebody
that’s walking a bike, you know. But it, you know, so it’s
kind of like maybe the bike went towards her at some point,
you know. But as far as me using the bike to try to block,
56
there were people all over the place.
At the conclusion of Defendant’s testimony, the Commonwealth informed the Court that
the parties had agreed to stipulate that Defendant had been convicted in 2011 of false
57
identification to law enforcement authorities.
DISCUSSION
Mandatory Sentence and Alleyne
Defendant challenges the sentence imposed by this Court on the ground that 42
Pa.C.S. § 9718.2 is unconstitutional in light of Alleyne v. United States, 133 S.Ct. 2151
(2013). Defendant also contends that 42 Pa.C.S. § 9718.2 violates Article I, Section 9,
and Article I, Section 13 of the Pennsylvania Constitution. We disagree.
58
With respect to Alleyne, we rely on our Opinion of November 3, 2014, filed on
November 4, 2014 at this docket, incorporated herein by reference, wherein we found
that section 9718.2 is not unconstitutional pursuant to Alleyne as it is solely a recidivist
statute. Neither does Article I, Section 9 of the Pennsylvania Constitution provide
Defendant a ground for relief.
Section 9 provides, in part, that “\[i\]n all criminal prosecutions the accused
\[cannot\] be deprived of his life, liberty or property, unless by the judgment of his peers or
the law of the land.” Pa. Const. Art. I, § 9. The scope of the protection provided by the
due process clause of section 9 is no greater than that provided by the United States
Constitution. Commonwealth v. Nguyen, 834 A.2d 1205, 1209 (Pa. Super. 2003). Thus
56
N.T. at 173.
57
N.T. at 195.
58
Opinion, In Re: Mandatory Sentence Pursuant to 42 Pa.C.S.A. § 9718.2 (November 3, 2014), filed
November 4, 2014.
7
whether the Pennsylvania Constitution demands that a prior conviction be proven beyond
a reasonable doubt to satisfy the due process clause of Article I, Section 9 can be
answered through a review of federal Fifth Amendment jurisprudence, and in particular
Jones v. United States, 526 U.S. 227 (1999).
In Jones, the Court found that “under the Due Process Clause of the Fifth
Amendment . . . any fact (other than prior conviction) that increases the maximum
penalty for a crime . . . must be proven beyond a reasonable doubt.” Jones, 526 U.S. at
243 n. 6 (emphasis added). Thus, pursuant to Jones, the Due Process Clause does not
require a prior conviction that increases the maximum penalty to be proven beyond a
59
reasonable doubt. As this reasoning has survived through Apprendi to Alleyne, where
the analysis of increased maximums was applied with equal force to increased
minimums, we conclude that a burden of proof less than beyond a reasonable doubt for
prior convictions that increase the mandatory minimum also does not violate the Due
Process Clause of the Fifth Amendment. We simply find no support for the proposition
that the due process rights of a repeat offender facing an increased minimum are, or
should be, broader than those of a repeat offender facing an increased maximum.
Accordingly, as 42 Pa.C.S. § 9718.2 does not violate the Due Process Clause of the Fifth
Amendment, we find that it also does not violate the due process clause of the
Pennsylvania Constitution.
Regarding Defendant’s claim that his sentence violates Article I, Section 13 of the
Pennsylvania Constitution, we find this claim to be without merit. Initially we note that
“the rights secured by the Pennsylvania prohibition against ‘cruel punishments’ are co-
extensive with those secured by the Eighth and Fourteenth Amendments.”
Commonwealth v. Zettlemoyer, 454 A.2d 937, 967 (Pa. 1982), abrogated on other
grounds by Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003). Accordingly, we can
dispose of Defendant’s claim under an Eighth Amendment proportionality analysis.
59
Opinion, In Re: Mandatory Sentence Pursuant to 42 Pa.C.S.A. § 9718.2 (November 3, 2014), filed
See
November 4, 2014.
8
In Commonwealth v. Baker, 78 A.3d 1044 (Pa. 2013), our Supreme Court made
the following observation regarding the history of Eighth Amendment challenges to
recidivist statutes:
A searching review of Eighth Amendment proportionality
decisions shows that, with respect to recidivist sentencing
schemes, successful challenges are extremely rare. Indeed,
the only successful challenge was presented in \[Solem v.
Helm, 463 U.S. 277 (U.S. 1983)\] wherein a South Dakota
sentence of life imprisonment without the possibility of
parole upon conviction of passing a bad check in the amount
of $100 (the defendant's seventh non-violent felony
conviction) was held to be unconstitutional. The High Court
concluded that the impossibility of parole was a determinative
factor in judging the punishment to be disproportionate to the
crime. Solem, supra at 297-300. The Solem Court specifically
distinguished the matter from its prior decision in Rummel v.
Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382
(1980), in which the High Court determined that a Texas
sentence of life imprisonment with the possibility of parole
after twelve years for a conviction of receiving $120.75 by
false pretenses (the defendant's third non-violent felony
conviction) did not contravene the Eighth Amendment. More
recently, in Ewing v. California, 538 U.S. 11, 17-20, 30-31,
123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003), the High Court
upheld the constitutionality of a sentence of 25 years' to life
imprisonment imposed for the theft of three golf clubs under
California's "three strikes" law. In addition, outside the
context of recidivist statutes, successful Eighth Amendment
challenges to non-capital sentences are equally uncommon.
See Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, 70 L. Ed.
2d 556 (1982) (holding that sentence of 40 years'
imprisonment for possession of 9 ounces of marijuana with
intent to distribute did not contravene the Eighth
Amendment); and \[Harmelin v. Mich., 501 U.S. 957 (U.S.
1991)\] (holding that sentence of life imprisonment for
possession of 650 grams of cocaine did not contravene the
Eighth Amendment).
Commonwealth v. Baker, 78 A.3d 1044, 1048-1049 (Pa. 2013) (holding that a mandatory
minimum sentence of 25 years of incarceration, pursuant to 42 Pa.C.S. § 9718.2, for a
9
second conviction for possession of child pornography does not violate the Eighth
Amendment to the Constitution). If a sentence of 25 years to life imprisonment for the
theft of three golf clubs pursuant to a recidivist statute is not a violation of the Eighth
Amendment to the Constitution, certainly a sentence of 25 years to 50 years of
incarceration, also pursuant to a recidivist statute, for sexually assaulting a 14 year old
girl similarly does not offend the Eighth Amendment’s ban on cruel and unusual
punishment. Defendant should be denied relief.
Indecent Assault Sentences
Defendant next claims that Count 4, Indecent Assault – Without Consent, and
Count 5, Indecent Assault – Complainant less than 16 years old and Defendant four or
more years older, should have merged for sentencing purposes as both counts arose from
a single incident. We disagree.
In the present matter, Defendant was convicted of violations of 18 Pa.C.S. §
3126(a)(1) and (a)(8). A person is guilty of violating subsection (a)(1):
if the person has indecent contact with the complainant,
causes the complainant to have indecent contact with the
person . . . for the purpose of arousing sexual desire in the
person or the complainant and:
(1) the person does so without the complainant’s
consent.
18 Pa.C.S. § 3126(a)(1). A person is guilty of violating subsection (a)(8):
if the person has indecent contact with the complainant,
causes the complainant to have indecent contact with the
person . . . for the purpose of arousing sexual desire in the
person or the complainant and:
***
(8) the complainant is less than 16 years of age and the
person is four or more years older than the
complainant and the complainant and the person are
not married to each other.
18 Pa.C.S. § 3126(a)(8). “Indecent contact” is “\[a\]ny touching of the sexual or other
intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any
person.” 18 Pa.C.S. § 3101.
10
Pursuant to the Judicial Code:
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements
of the other offense. Where crimes merge for sentencing
purposes, the court may sentence the defendant only on the
higher graded offense.
42 Pa.C.S. § 9765. However,
if a defendant has committed several discrete criminal acts, he
may be punished separately for each of them despite their
close relationship in a single criminal episode, as long as each
act is a separate injury in itself. If there are separate criminal
acts, the first condition for application of the merger doctrine
does not exist. Once a defendant commits an original crime,
he is not permitted to compound the injuries he inflicts and
then escape liability for additional crimes under the guise that
they all were done in the same criminal transaction.
60
Commonwealth v. Ross, 543 A.2d 1235, 1236-37 (Pa. Super. 1988).
Here, Defendant committed several discrete criminal acts: Defendant touched
M.R.’s breasts; Defendant squeezed M.R’s butt; Defendant bit M.R.’s butt; and
Defendant pressed his penis against M.R. while standing behind her. Thus, by this
Court’s count, Defendant had indecent contact with M.R. four times, each constituting a
discrete criminal act, and Defendant may therefore be punished separately for each,
“despite their close relationship in a single criminal episode.” Id.
Additionally, subsection (a)(1) and (a)(8) of Indecent Assault do not share
identical statutory elements. A conviction pursuant to subsection (a)(1) requires that the
indecent contact occur without the complainant’s consent, whereas subsection (a)(8)
requires the indecent contact to have been perpetrated by an individual who is four or
more years older than the complainant who is less than 16 years of age. Thus each
subsection has a statutory element not included in the other, and a subsection (a)(1)
60
Although Ross was decided prior to the enactment of section 9765 of the Judicial Code, the analysis of
the merger doctrine at issue in Ross applies equally to the substantively similar codified version at 42
Pa.C.S. § 9765.
11
Indecent Assault may be proved without necessarily proving a subsection (a)(8) Indecent
Assault. See Commonwealth v. Rhoades, 8 A.3d 912 (Pa. Super. 2010) (holding that
subsections (1) and (4) of 18 Pa.C.S. § 2702 (Aggravated assault) do not merge for
sentencing purposes as they do not share identical statutory elements). Accordingly,
Defendant’s convictions at Count 4 and Count 5 do not merge for sentencing purposes.
Defendant should be denied relief.
Imposition of Fine
Defendant challenges our imposition of a $100.00 fine at Count 5, arguing that we
imposed the above fine “without any evidence of record or inquiry thereto regarding
61
Defendant’s ability to pay said fine in violation of 42 Pa.C.S. § 9726(c).” We find no
error in our imposition of a $100.00 fine.
Section 9726(c) of the Judicial Code states: “The court shall not sentence a
defendant to pay a fine unless it appears of record that: (1) the defendant is or will be
able to pay the fine; and (2) the fine will not prevent the defendant from making
restitution or reparation to the victim of the crime.” 42 Pa.C.S. § 9726(c). However,
“\[i\]mposition of a fine is not precluded merely because the defendant cannot pay the fine
immediately or because he cannot do so without difficulty.” Commonwealth v. Thomas,
879 A.2d 246, 264 (Pa. Super. 2005).
In the present matter, at the time of sentencing, we were in possession of a pre-
sentence investigation report. From that report, we determined that Defendant will be
able to pay the $100 fine imposed at Count 5, even if not immediately or without
difficulty. We note that we did not impose any other fines on Defendant and there is no
restitution due at this docket. Additionally, at docket CP-21-CR-3135-2012, which is
currently on appeal at 411 MDA 2014, we sentenced Defendant to a minimum period of
incarceration of two years. Thus at the time of his sentencing at this docket, we were well
th
aware that Defendant had been incarcerated since at least August 6 of 2013 and
therefore inquiry into Defendant’s employment or employment opportunities was
61
Defendant’s Concise Statement of the Errors Complained of on Appeal, filed December 23, 2014, ¶ 3.
12
unnecessary. With all of the above in mind, we imposed a meager $100.00 for a
conviction that carried a possible maximum fine of $5000.
Merger of Unlawful Contact with a Minor and Indecent Assault
Lastly, Defendant contends that his convictions at Count 1, Unlawful Contact with
a Minor, Count 4, Indecent Assault, and Count 5, Indecent Assault, should merge for
sentencing purposes. We disagree.
In Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006), our Superior Court
squarely addressed the issue now raised by Defendant, finding that:
once \[an individual\] intentionally contacts or communicates
with the minor for the purpose of engaging in the prohibited
activity the crime of unlawful contact with a minor has been
completed. The actual physical touching of an intimate part of
the victim's body, with the requisite purpose of arousing or
gratifying sexual desire, is not an element of the crime
contemplated in § 6318. In other words, the actor need not be
successful in completing the purpose of his or her contact or
communication with the minor. Moreover, the
contact/communication contemplated in § 6318 need not be
made in person and can be accomplished through an agent or
agency. Clearly, such is not the case with an indecent assault.
Since each offense requires proof of an element that the other
does not, the offenses do not merge.
Commonwealth v. Evans, 901 A.2d 528, 537 (Pa. Super. 2006) (emphasis added). In the
present matter, Defendant engaged M.R. in conversation and invited her to walk with him
along a trail leading away from the Point. This contact was for the purpose of engaging in
unlawful sexual contact with M.R. This contact with M.R. alone constitutes the crime of
Unlawful Contact with a Minor and is clearly separable from the indecent contact which
was Defendant’s ultimate goal. Accordingly, Defendant should be denied relief.
13
CONCLUSION
This Court concludes that it properly sentenced Defendant pursuant to 42 Pa.C.S.
§ 9718.2, that Counts 4 and Counts 5, both Indecent Assault, should not merge for
sentencing purposes and neither should either Indecent Assault conviction merge with
Count 1, Unlawful Contact with a Minor, and, finally, that we properly imposed a $100
fine on Defendant at Count 5. The issues raised by Defendant on appeal, therefore, are
without merit, and he should be denied relief.
BY THE COURT
__________________________
Christylee L. Peck, J.
Matthew P. Smith, Esq.
Chief Deputy District Attorney
Timothy L. Clawges, Esq.
Chief Public Defender
14