Com. v. Natal, A.

Superior Court of Pennsylvania

Com. v. Natal, A.

DecidedMay 9, 2018

Docket876 EDA 2017

StatusUnpublished

This text of Com. v. Natal, A. (Com. v. Natal, A.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Natal, A., (Pa. Ct. App. 2018).

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Opinion

J-S14009-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANGEL NATAL : : Appellant : No. 876 EDA 2017 :

Appeal from the Judgment of Sentence February 17, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004656-2015

BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.: FILED MAY 09, 2018

Angel Natal appeals from the judgment of sentence imposed on

February 17, 2017, in the Court of Common Pleas of Philadelphia County. The

trial court found Natal guilty of rape (forcible compulsion), rape (unconscious

victim), statutory sexual assault, sexual assault, corruption of minors, and

indecent assault.1 The charges stemmed from Natal’s sexual contact with his

13-year-old stepsister. The trial court sentenced Natal to an aggregate term

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 Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3121(a)(1) and (a)(3), 3122.1, 3124.1, 6301, and 3126(a)(2). J-S14009-18

of imprisonment of six to 15 years, followed by a 15-year term of probation.2

Natal contends the sentence for the indecent assault charge is illegal “because

that charge merged with the rape conviction as of 18 Pa.C.S. § 3121(a)(1) for

purposes of sentencing given that both convictions are based on the act of

forcible intercourse[.]” Natal’s Brief at 3, citing Commonwealth v. Smith,

459 A.2d 777, 788 (Pa. Super. 1983). Based on the following, the judgment

of sentence for indecent assault (forcible compulsion) is vacated. The

judgment of sentence in all other respects is affirmed.3

2 Specifically, the trial court imposed a sentence of six to 15 years’ imprisonment, followed by five years’ probation on the rape (forcible compulsion) charge; 10 years’ probation on the statutory sexual assault charge, to run consecutively with the rape charge; 10 years’ probation on the sexual assault charge, to run concurrent with the rape charge; five years’ probation on the corruption of minors charge, to run concurrent to the rape charge; five years’ probation on the indecent assault charge, to run concurrent with the rape charge; and six to 15 years’ incarceration followed by five years probation on the rape (unconscious victim) charge, to run concurrent to the rape - forcible compulsion charge.

3 This Court, on July 5, 2017, ordered Natal to show cause why his March 6, 2017 appeal should not be quashed as interlocutory, as Natal had filed his appeal from the verdict of guilt entered on October 18, 2016. See Commonwealth v. Charles O’Neill, 578 A.2d 1334, 1335 (Pa. Super. 1990) (“In criminal cases appeals lie from the judgment of sentence rather than from the verdict of guilt.”). Natal failed to file a response to this Order. Subsequently, however, Natal filed a petition to amend the notice of appeal. On September 19, 2017, this Court directed Natal to file an amended notice of appeal referencing the February 17, 2017 judgment of sentence, and permitted Natal to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. On September 21, 2017, Natal filed an amended notice of appeal and concise statement.

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The parties are well acquainted with the procedural history that is fully

set forth in the trial court’s opinion and, therefore, we do not restate it herein.

See Trial Court Opinion, 10/5/2017, at 1-2.

Natal claims his five-year term of probation for rape by forcible

compulsion (imposed consecutively to the six-to-fifteen year term of

imprisonment for that offense) and his concurrent five-year term of probation

for indecent assault should merge for purposes of sentencing.

Preliminarily, we note the merger claim presented by Natal is a

challenge to the legality of the sentence and, therefore, is not subject to

waiver even though Natal raised this claim for the first time in his Pa.R.A.P.

1925(b) statement.4 See Commonwealth v. Glass, 50 A.3d 720, 730 (Pa.

Super. 2012) (“[A] claim that crimes should have merged for purposes of

sentencing challenges the legality of a sentence and, thus, cannot be

waived.”). In reviewing such a claim, “our scope of review is plenary and our

standard of review is de novo.” Commonwealth v. Lomax, 8 A.3d 1264,

1267 (Pa. Super. 2010).

Pennsylvania’s merger doctrine is codified at Section 9765 of the

Sentencing Code, as follows:

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

4 Natal raised his merger claim for the first time in his September 21, 2017 concise statement.

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offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.

Relevant to the merger issue raised herein are Natal’s convictions for

rape (forcible compulsion), 18 Pa.C.S. § 3121(a)(1), and indecent assault

(forcible compulsion), 18 Pa.C.S. § 3126(a)(2). “A person commits a felony

of the first degree when the person engages in sexual intercourse with a

complainant: … (1) By forcible compulsion.” 18 Pa.C.S. § 3121(a)(1). “A

person is guilty of indecent assault if the person has indecent contact with the

complainant, causes the complainant to have indecent contact with the person

or intentionally causes the complainant to come into contact with seminal

fluid, urine or feces for the purpose of arousing sexual desire in the person or

the complainant and: … (2) the person does so by forcible compulsion[.]” 18

Pa.C.S. § 3126(a)(2).

The Crimes Code defines “Forcible compulsion” in relevant part as

“Compulsion by use of physical, intellectual, moral, emotional or psychological

force, either express or implied. . . .” 18 Pa.C.S. § 3101. The Crimes Code

defines “Indecent contact” as “Any touching of the sexual or other intimate

parts of the person for the purpose of arousing or gratifying sexual desire, in

any person. Id. Furthermore, “Sexual intercourse” is defined as follows: “In

addition to its ordinary meaning, includes intercourse per os or per anus, with

some penetration however slight; emission is not required.” Id.

Generally, “a conviction for indecent assault will merge into a conviction

for rape.” Commonwealth v. Smith, 459 A.2d 777, 788 (Pa. Super. 1983).

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However, “when an indecent assault conviction is predicated upon an act

separate from the act of forcible intercourse, the indecent assault conviction

does not merge with a conviction for rape. This is true whether the act which

constitutes indecent assault is committed immediately prior to, or

concurrently with the rape.” Commonwealth v. Richter, 676 A.2d 1232,

1236 (Pa. Super. 1996) (defendant fondled victim’s breasts before placing his

penis in her vagina).

The trial court, the fact-finder in this case, found merit in Natal’s claim,

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