Com. v. Parker, A.

• Court: Superior Court of Pennsylvania
• Decided: July 14, 2015
• Docket: 438 EDA 2014
• Status: Unpublished

Opinion

J. S27032/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ANTHONY PARKER, : : Appellant : No. 438 EDA 2014

Appeal from the Judgment of Sentence January 10, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0006538-2011

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 14, 2015

Appellant, Anthony Parker, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and convictions for rape of a child,1 involuntary deviate sexual

intercourse with a child,2 aggravated indecent assault of a person less than

thirteen years of age,3 unlawful contact with a minor,4 endangering the

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 3121(c). 2 18 Pa.C.S. § 3123(b). 3 18 Pa.C.S. § 3125(a)(7). 4 18 Pa.C.S. § 6318(a)(1). J. S27032/15

welfare of children,5 indecent assault of a person less than thirteen years of

age,6 and corruption of minors.7 Appellant contends that it was error for the

court to admit into evidence a letter that was previously excluded at his first

trial, which had resulted in a mistrial. He further contends the letter was not

relevant and, regardless, was more prejudicial than probative. Appellant

also claims the court failed to instruct the jury on a prompt complaint and

improperly instructed the jury on flight. Finally, he asserts the court failed

to merge his sentences for aggravated indecent assault and indecent

assault. We hold Appellant is due no relief.

We adopt the facts set forth in the trial court’s opinion. See Trial Ct.

Op., 9/5/14, at 1-4. As part of the victim’s recovery and counseling process,

she was asked to write a letter to Appellant8 that described her feelings and

what she would say to him. N.T. Trial, 9/25/13, at 66. At Appellant’s first

trial, the court excluded that letter. Because of a hung jury, that trial ended

in a mistrial, and Appellant was tried again.

At the end of voir dire for the second trial, Appellant orally moved to

exclude the letter. N.T. Trial, 9/24/13, at 207. The court held Appellant’s

5 18 Pa.C.S. § 4304(a)(1). 6 18 Pa.C.S. § 3126(a)(7). 7 18 Pa.C.S. § 6301(a)(1)(i). 8 The letter was never intended to be read by Appellant. N.T. Trial, 9/25/13, at 66.

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motion under advisement. Id. at 210. Subsequently, the Commonwealth

asked the victim to read the letter into the record without objection by

Appellant. N.T. Trial, 9/25/13, at 65-68. At the close of the

Commonwealth’s case, the Commonwealth moved for the admission of all its

exhibits and Appellant affirmatively indicated he had no objection. N.T.

Trial, 9/27/13, at 23-24.

The jury found him guilty of the above charges. On January 10, 2014,

the court sentenced Appellant to an aggregate sentence of twenty-six to

fifty-two years’ imprisonment followed by a consecutive sentence of

seventeen years’ probation. The aggregate sentence included a consecutive

sentence of four to eight years’ imprisonment for aggravated indecent

assault of a person less than thirteen years of age and a consecutive

sentence of five years’ probation for indecent assault of a person less than

thirteen years of age.

On January 16, 2014, Appellant filed a post-sentence motion, which

only challenged his aggregate sentence as excessive. The court denied

Appellant’s motion on January 28, 2014, and Appellant timely appealed on

February 5, 2014. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)

statement.

Appellant raises the following issues:

Did not the lower court err in permitting the introduction of the complainant’s . . . letter to [A]ppellant in its case in chief because (1) the law of the case doctrine prohibited the lower court from reconsidering [the decision of the

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judge presiding over Appellant’s first trial] grant of [A]ppellant’s motion in limine precluding the letter, and (2) the letter does not independently satisfy Pennsylvania Rule of Evidence 803(3), and even if it were admissible, it is irrelevant?

Did not the lower court err in denying [A]ppellant’s request for a prompt complaint instruction indicating the lack of a prompt report even though the disclosure occurred at least some five to six years after the alleged incident and [A]ppellant was no longer living in the home?

Did not the lower court err by giving a flight instruction to the jury where the evidence did not reasonable suggest that [A]ppellant knowingly evaded the police or knew the police were looking for him?

Did not the lower court impose an illegal sentence by failing to merge indecent assault of a person less than 13, 18 Pa.C.S. § 3126(a)(7), with aggravated indecent assault of a person less than 13, 18 Pa.C.S. § 3125(a)(7)?

Appellant’s Brief at 4.

In support of his first issue, Appellant contends that the law-of-the-

case doctrine barred the judge in the second trial from reversing the decision

of the judge in the first trial to preclude admission of the victim’s therapy

letter. He also maintains that the letter does not satisfy any one of the

exceptions to the hearsay rule. Regardless, Appellant insists the letter is

irrelevant. We hold Appellant failed to preserve this issue for appellate

review.

“The admission of evidence is a matter vested within the sound

discretion of the trial court, and such a decision shall be reversed only upon

a showing that the trial court abused its discretion.” Commonwealth v.

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Reid, 811 A.2d 530, 550 (Pa. 2002) (citation omitted). Failure to lodge a

timely objection results in waiver of the claim on appeal. Commonwealth

v. Murray, 83 A.3d 137, 155 (Pa. 2013). Instantly, Appellant failed to

object to the introduction of the victim’s letter at the second trial; indeed,

Appellant indicated he had no objection to the admission of the letter. See

N.T. Trial, 9/25/13, at 65-68; N.T. Trial, 9/27/13, at 23-24. Thus, because

Appellant waived the issue for appellate review, we discern no basis for

relief. See Murray, 83 A.3d at 155. Regardless, “the grant of a new trial

‘wipes the slate clean,’ so that a previous court’s ruling on the admissibility

of evidence generally does not bind a new court upon retrial . . . .” See

Commonwealth v. Paddy, 800 A.2d 294, 311 (Pa. 2002) (citations

omitted).

We summarize Appellant’s arguments in support of his second and

third issues. Appellant alleges the court erred by refusing to instruct the

jury regarding the absence of a prompt complaint by the victim. He notes

the victim, then five years old, waited six years to report the assault.

Appellant maintains the victim understood his actions were wrong well

before she reported it. Appellant also contends the court mistakenly

instructed the jury on flight. He reasons the Commonwealth failed to

adduce sufficient evidence to justify the flight instruction. Appellant, we

hold, is due no relief for either issue.

In reviewing a challenge to the trial court’s refusal to give a specific jury instruction, it is the function of this Court to

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determine whether the record supports the trial court’s decision. In examining the propriety of the instructions a trial court presents to a jury, our scope of review is to determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. A jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Consequently, the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the [a]ppellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)

(citation omitted); accord Commonwealth v. Hawkins, 701 A.2d 492,

511 (Pa. 1997). “The propriety of a prompt complaint instruction is

determined on a case-by-case basis pursuant to a subjective standard based

upon the age and condition of the victim.” Sandusky, 77 A.3d at 667

(citation omitted).

In Sandusky, the defendant alleged the court erred by not giving the

prompt complaint instruction. Id. The trial court refused to give the

instruction based on reasoning that disregarded the case-by-case standard

set forth above. Id. at 668. Thus, the Superior Court ascertained whether

the trial court’s error was harmless. Id. The Sandusky Court held that

because the trial court’s credibility instruction mirrored the Pennsylvania

Suggested Standard Criminal Jury Instruction on witness credibility and the

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defendant cross-examined the victims regarding their delay in reporting the

criminal acts, no prejudice resulted. Id. at 669.

In Commonwealth v. Powers, 577 A.2d 194 (Pa. Super. 1990), the

defendant alleged “the trial court erred in refusing to instruct the jury

specifically that the absence of a prompt complaint by the victim must be

considered in determining her credibility.” Id. at 197. The Powers Court

refused to find an abuse of discretion, reasoning, “[t]he charge given here

adequately covered the general issue of credibility. To have given the

charge requested would have given undue weight to a single factor in the

jury’s complex credibility analysis.” Id. With respect to a flight instruction,

this Court held there was no abuse of discretion when the “trial court

explained that a motive other than consciousness of guilt may prompt

flight.” Commonwealth v. Garcia, 847 A.2d 67, 73 (Pa. Super. 2004).

After careful consideration of the parties’ briefs, the record, and the

decision by the Honorable Gwendolyn N. Bright, we affirm these two issues

on the basis of the trial court’s decision. See Trial Ct. Op. at 4-6 (holding

facts did not justify issuance of prompt complaint instruction and court

instructed the jury that Appellant claimed he was unaware police were

looking for him and flight does not necessarily establish consciousness of

guilt); see also Garcia, 847 A.2d at 73. Even assuming the trial court

erred by failing to give a prompt complaint instruction, the court—similar to

the trial court in Sandusky—instructed the jury generally on credibility.

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See N.T. Trial, 9/30/13, at 105-08; Sandusky, 77 A.3d at 669. Thus, any

error was also harmless. See Sandusky, 77 A.3d at 669.

Lastly, Appellant contends the trial court imposed an illegal sentence.

He reasons that a conviction of indecent assault of a complainant under the

age of thirteen merges into the offense of aggravated indecent assault of a

complainant under the age of thirteen. Appellant acknowledges that in

Commonwealth v. Allen, 856 A.2d 1251 (Pa. Super. 2004), this Court held

the offenses do not merge, but maintains Allen is wrong. Appellant’s Brief

at 39. Appellant acknowledges that a panel of this Court cannot overrule

Allen, but asserts that after Allen, the aggravated indecent assault statute

was amended to include divisible offenses:

The United States Supreme Court has recognized that where a statute involves “divisible offenses”—the kind which “sets out one or more elements of the offense in the alternative” it is proper to examine which alternative is at issue. See United States v. Descamps, ___ U.S. ___, 133 S. Ct. 2276, 2281 (2013). The current indecent assault provision is such a statute.

Id. at 41-42. Appellant thus reasons this Court could hold merger was

warranted without contradicting Allen. We hold Appellant is not entitled to

relief.

The issue of merger is a question of law, and therefore “our scope of

review is plenary and our standard of review is de novo.” Commonwealth

v. Williams, 920 A.2d 887, 888-89 (Pa. Super. 2007) (citation omitted). In

Pennsylvania,

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[n]o 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. “The doctrine of merger is a rule of statutory

construction designed to determine whether the legislature intended for the

punishment of one offense to encompass that for another offense arising

from the same criminal act or transaction.” Commonwealth v. Evans, 901

A.2d 528, 536 (Pa. Super. 2006) (citation omitted).

Aggravated indecent assault of a person less than thirteen years of

age is defined as follows:

(a) Offenses defined.—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:

* * *

(7) the complainant is less than 13 years of age . . . .

18 Pa.C.S. § 3125(a)(7). Indecent assault of a person less than thirteen

years of age is defined as follows:

(a) Offense defined.—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

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or feces for the purpose of arousing sexual desire in the person or the complainant and:

18 Pa.C.S. § 3126(a)(7). At the time Allen was decided, Section 3126(a)

defined indecent assault as follows:

(a) Offense defined.—A person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if

18 Pa.C.S. § 3126(a)(7) (1995) (amended 2005). “Indecent contact” is

defined as “[a]ny touching of the sexual or other intimate parts of the

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

person.” 18 Pa.C.S. § 3101.

In Allen, our Court examined whether “whether the offenses of

indecent assault and aggravated indecent assault are greater and lesser-

included offenses.” Allen, 856 A.2d at 1253. The Allen Court held they did

not merge, reasoning as follows:

Aggravated indecent assault includes an element that is not required to commit indecent assault. That element is penetration of the genitals or anus of the victim. Indecent assault includes an element that is not required to commit aggravated indecent assault. That element is proof of arousing or gratifying sexual desire. [See 18 Pa.C.S. § 3101.]

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Since each crime has an additional element not included in the other crime, neither is a lesser-included offense of the other.

Id. at 1254.

We are bound by Allen, and therefore discern no basis for granting

Appellant relief. Appellant, however, suggests that the inclusion of divisible

offenses in the present indecent assault statute, i.e., “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,” see

18 Pa.C.S. § 3126(a), requires this Court to identify under which clause

Appellant was convicted. We need not engage in that identification because

both clauses incorporate the element of arousing sexual desire—an element

absent from the aggravated indecent assault statute. Compare id., with

18 Pa.C.S. § 3125(a). Accordingly, having discerned no error of law, see

Williams, 920 A.2d at 888-89, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/14/2015

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IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-5 l-CR-0006538-2011

CP-51-CR-0006538-2011_Comm v. Pa1ka.Anthony OpinlO

OPJNION

BRIGHT, J.

On May 11, 2011 Appellant was arrested and charged with Rape of a Child, Involuntary

Deviate Sexual Intercourse of a Child, Aggravated Indecent Assault, Unlawful Contact with a

Minor, and related offenses and on September 30, 2013 following a jury trial before this Court he

was found guilty of those crimes. On January 10, 2014 Appellant was sentenced to a lengthy term

of imprisonment. Post Sentence Motions were filed on January 16, 2014 and on January 28, 2014

they were denied. This timely appeal followed on February 15, 2014.

Pursuant to Pa.R.A.P. 1925(b) Appellant was instructed to file a Statement of Errors

Complained Of On Appeal. Appellant responded complaining that the Court erred in denying his

request for a prompt complaint instruction to the jury; that the Court erred in instructing the jury

regarding flight; that the Court erred in permitting the introduction of the complainant's letter to

Appellant; and that the Court committed error in the imposition of sentence.

FACTS

Complainant, SC, testified that in 2004-2005, when then between the ages of five and seven

years, she resided on Guyer Street, Philadelphia, PA with her mother, Jawanna Johnson, her

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younger brother, and Appellant. Appellant was her mother's boyfriend at the time and is her

brother's natural father. N.T.1 9/25/2013 @42-43. In her testimony SC described multiple

incidents during which Appellant sexually assaulted her and inappropriately touched her body and

her private parts. On one occasion Complainant stated that Appellant entered the bathroom of the

house when she was nude, which her mother strictly prohibited, and another when he asked her to

go to bed nude, saying the next morning that he checked during the night and was angry because she

did not comply with his request. She described an incident where Appellant began rubbing

Complainant's leg while he sat with her in the family dining room assisting Complainant with

homework. Id. @ 46-48. SC went on to testify about an incident where Appellant was sitting with

her on the living room couch watching television. She stated that Appellant unzipped his pants,

pulled out his penis, and made her put her mouth on it. Id. @49. Finally, SC described an

occasion when she was sitting on the living room floor watching television when Appellant pulled

down her underwear and began touching the inside of her vagina. Id. @ 50. She testified that on

that occasion, Appellant was on the floor with her and that he placed his penis inside her vagina.

Id. @51-53, 101-103. Complainant stated that she did not report these incidents to anyone because

Appellant threatened that if she told anyone he would hurt her family. Id. @ 54.

Jowanna Johnson, Complainants' mother, testified that between 2004 and 2005 she had a

relationship with Appellant. Appellant moved into Johnson's home and later they had a son, AP.

Id. @ 125-126. Johnson stated that eventually Appellant became physically and mentally abusive

towards her, their relationship ended, and Appellant moved out of the house. Id. @ 126.

1N.T. refers to the Notes of Testimony at the jury trial before the Honorable Gwendolyn N. Bright on September 25-30, 2013. The specific date to which reference is made follows the notation "N.T.".

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Johnson testified further that in early February 2011 she detected that something was

seriously disturbing Complainant and Johnson asked a trusted friend and neighbor, Aisha Taylor, to

speak with SC to ascertain the problem. Id. @ 110-112. Taylor spoke with Complainant

whereupon Complainant reported that when she was younger Appellant was molesting her. Id. @

113-114. Taylor immediately contacted Johnson and insisted that she have a talk with Complainant

and insisted that Complainant's natural father, Himmiea Cooper, be present. Id.@ 116, 129, N.T.

9/26/2013 @ 9-11. The next day Complainant told her mother and father that Appellant was

sexually assaulting her. N.T. 9/25/2013@ 130, N.T. 9/26/2013@ 11. Cooper testified that

Complainant explained that she did not report the incidents to them earlier because Appellant

threatened to kill them and Cooper's father. N.T. 9/26/2013@ 12.

After finding out about these incidents of sexual assault, Cooper and Johnson searched for

Appellant to no avail. Id. Cooper testified that he made inquires and went to multiple locations,

spoke with members of Appellant's family and former girlfriends. He searched for almost a month.

Id. Cooper admitted that he was searching for Appellant to do him harm for what he had done to

his daughter. Id. @ 13-14. When he was unable to locate Appellant, however, he and

Complainant's mother called police. Philadelphia Police Officer Edward Lichtenhahn, assigned to

the Special Victims Unit, testified that an arrest warrant was issued for Appellant on April 12, 2011.

Lichtenhahn testified that officers went to approximately 12 different addresses for Appellant and

were initially unsuccessful. Id.@ 66-67. Lichtenhahn spoke with several persons and left cards

with them and at the addresses he visited which contained information for Appellant to contact

police. Appellant was finally found and arrested on May 11, 2011. Id. @ 67.

Complainant was interviewed at the Philadelphia Children's Alliance and examined by the

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Medical Director of the Child Protection Program at Saint Christopher's Hospital for Children, Dr.

Maria McColgan. Dr. McColgan testified that she examined Complainant on October 16, 2012 and

that she found that Complainant was normal with no definitive signs of penetrative trauma, which

was normal for a young girl of Complainants age and maturity. Id.@ 12-14. She explained:

That the abuse in this case was reported long after it stopped and any injury there might have been

would have headed. She added that SC had gone through puberty since the incidents and that the

changes taken place would have masked any signs of injury. Id.@ 19.

DISCUSSION

Appellant first complains that the Court erred in denying his request for a prompt

complainant instruction to the jury. This claim is without merit.

In Commonwealth v. Thomas, 904 A.2d 964, 2006 PA Super 192, the Superior Court of

Pennsylvania elucidated as follows:

"In reviewing a challenge to the trial court's refusal to give a specific jury instruction, it is the function of this Court to determine whether the record supports the trial court's decision. In examining the propriety of the instructions a trial court presents to a jury, our scope of review is to determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. A jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Consequently, the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the Appellant was prejudiced by that refusal.

The prompt complaint instruction is based upon a belief that a victim of a violent assault would reveal the assault occurred at the first available opportunity; the purpose of the instruction is to allow a jury to call into question a complainant's credibility when he or she did not complain at the first available opportunity.

The propriety of a prompt complaint instruction is determined on a case-by-case basis pursuant to a subjective standard based upon the age and condition of the victim. For example, where the victim of a sexual assault is a minor who may not have appreciated the offensive nature of the conduct, the lack of a prompt complaint would not necessarily justify an inference of fabrication. 4 Circulated 06/15/2015 03:27 PM

This is especially true where the perpetrator is one with authority or custodial control over the victim. Similarly, if the victim suffers from a or diminished capacity, a prompt complaint instruction may not be appropriate."

Commonwealth v. Thomas, supra, 904 A.2d @ 971. In the instant case, SC was approximately five

years of age at the time of these incidents and the perpetrator was her mother's live-in boyfriend

who was in a position of authority over her and left to care for the minor child while her mother was

away. There was no physical violence perpetrated to alert SC of the extreme nature of Appellant's

conduct. Moreover, the Court carefully and thoroughly instructed the jury on determining and

weighing the credibility of each witness. Error was not committed.

Appellant also complains that the Court erred in instructing the jury regarding flight. This

claim is likewise without merit.

The trial court has broad discretion in determining, phrasing, and accurately presenting its

jury instructions, and only when there is an abuse of discretion or an inaccurate statement of the law

is there reversible error. Commonwealth v. Kerrigan, 920 A.2d 190 (Pa. Super. 2007). In the case

sub Judice, the Commonwealth introduced evidence that upon learning of the Appellant's crimes,

Complainant's mother and father searched for him for a month and was unsuccessful in spite of

their best efforts. Philadelphia Police Officer Edward Lichtenhan testified that police went to

eighteen addresses where Appellant was known to have lived, leaving cards with information for

Appellant to contact police, and there was no response to their efforts. Based upon the evidence

the Court instructed the jury as follows:

"There was evidence including the testimony of police officer Edward Lichtenhahn that may have tended to show that the defendant may have hid from police. That is that when the police went to all of the defendant's addresses of record over the course of a month, leaving their cards at all of the locations, and that the defendant did not contact the police in response to their attempts. The defendant maintains that he was not aware that the police were looking for him. The credibility, weight, and effect of this evidence is for you to decide. Generally speaking, when a crime has been committed that a person thinks he is or 5 Circulated 06/15/2015 03:27 PM

may be accused of committing and he conceals himself, such concealment is a circumstance tending to prove the person is conscious of guilt. Such concealment does not necessarily show consciousness of guilt in every case. A person may conceal or hide himself for some other motive and may do so even when innocent. Whether the evidence of possible concealment in this case should be looked at as tending to prove guilt depends upon the facts and circumstances of this case and especially upon motives that may have prompted the concealment. You may not find the defendant guilty solely on the basis of evidence of flight or concealment." N.T. 9/30/2013@ 112.

This instruction is appropriate and accurate. Error was not committed.

Appellant next complains that the Court erred in permitting the introduction of

Complainant's letter to Appellant in the Commonwealth's case in chief. Specifically, Appellant

claims the admission of Complainant's letter to Appellant is prohibited by the law of the case

doctrine. This claim is without merit.

In Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995), the Supreme Court of

Pennsylvania stated:

"The law of the case doctrine refers to a family of rules which embody the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter .... The various rules which make up the law of the case doctrine serve not only to promote the goal of judicial economy ... but also operate (1) to protect the settled expectations of the parties; (2) to insure uniformity of decisions; (3) to maintain consistency during the course of a single case; (4) to effectuate the proper and streamlined administration of justice; and (5) to bring litigation to an end."

Commonwealth v. Starr, supra, 541 Pa.@574, 664 A.2d@ 1331, Commonwealth v. McCandless.

2005 PA. Super. 280, 880 A.2d 1262 (Pa. Super. 2005). The law of the case doctrine is not,

however, inflexible. Commonwealth v. McCandless, supra, 880 A.2d@ 1268.

In Mc/landless the Superior Court of Pennsylvania elucidated:

"This rule has been adopted and frequently applied in our own State. It is not, however, inflexible. It does not have the finality of the doctrine of resjudicata. "The prior ruling may have been followed as the law of the case but there is a difference between such adherence

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and res judicata; one directs discretion, and the other supercedes it and compels judgment. In other words, in one it is a question of power, in the other of submission." The rule of the "law of the case" is one largely of convenience and public policy, both of which are served by stability in judicial decisions, and it must be acconunodated to the needs of justice by the discriminating exercise of judicial power."

Commonwealth v ..McCandless, supra. The doctrine is based on a policy of fostering the finality

of pre-trial applications in an effort to maintain judicial economy and efficiency. Commonwealth v.

Hernandez, 39 A.3d 406, 2012 PA Super 40. Departure from the law of the case doctrine has been

previously allowed in circumstances where there has been a change in the facts or evidence giving

rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a

manifest injustice if followed. See, Commonweallh v. Starr, supra.

In the case sub Judice a retrial was necessitated following a hung jury. The first trial was

presided over by a different judge of this Court of coordinate jurisdiction. That judge granted a

motion in limine ruling that a letter the Complainant wrote to Appellant while in the course of

psychotherapy which she received after she was raped and sexually assaulted was inadmissible.

After ruling, the defense opened the door to its use, and the letter was ruled admissible and was then

read to the jury. This intervening consequence undermines the policy upon which the law of the

case doctrine is based. This Court exercised its discretion to permit the introduction of the letter

into evidence in the subsequent trial of the case. Error was not committed.

Finally, Appellant complains that the sentence imposed was illegal as the Court did not

merge certain offenses for sentencing purposes. Specifically, Appellant asserts that the sentence

imposed was illegal as the language of 18 Pa.C.S. § 3215 (relating to aggravated indecent assault)

expressly requires any sentence to merge with the charges of Rape and Involuntary deviate sexual

intercourse by including the proviso "except as provided by"; and the sentence imposed for indecent

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assault and indecent assault of a child under 13 merge with the other offenses or, in the alternative,

merge with each other. These claims are without merit.

42 Pa.C.S.A. § 9765 provides, in pertinent part, 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 offense."

In the instant case sentence was imposed for the crimes of Rape of a Child, Aggravated Indecent

Assault of a Complainant less than 13 years old, Unlawful Contact With a Minor, Endanger the

Welfare of Children, Indecent Assault of a Person Less than 13 Years Old, and Corrupting the

Morals of a Minor. 18 Pa.C.S.A. § 3 l21(c) provides that "(a) person commits the offense of rape

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

complainant who is less than 13 years of age." 18 Pa.C.S.A. § 3123(b) provides that "(a) person

commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the

person engages in deviate sexual intercourse with a complainant who is less than 13 years of age.

18 Pa.C.S.A. § 3123(e) defines 'forcible compulsion' as follows:

"(e) Definition.v-As used in this section, the term "forcible compulsion" includes, but is not limited to, compulsion resulting in another person's death, whether the death occurred before, during or after the sexual intercourse."

Clearly, all of the statutory elements of rape of a child are included in the statutory elements of

involuntary deviate sexual intercourse with a child. Appellant's reference to the language in 18

Pa.C.S. § 3215 is ofno avail as 18 Pa.C.S. § 3215 relates to publicly owned facilities; public

officials and public funds. Error was not committed.

8 Circulated 06/15/2015 03:27 PM

Appellant also asserts that the sentence imposed for indecent assault and the sentence

imposed for indecent assault of a child under 13 merge with the other offenses or, in the alternative,

merge with each other. This claim is likewise without merit.

At the outset, the Record reflects that the Court imposed sentence for the crime indecent

assault of a child under 13, 18 Pa.C.S.A. § 3126(7), not for indecent assault generally. 18

Pa.C.S.A. § 3126 defines Indecent Assault, in pertinent part, as follows:

"§ 3126. Indecent assault

( a) Offense deflned.s-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:

(7) the complainant is less than 13 years of age ... "

Here again, it is clear that all of the statutory elements of indecent assault of a child under 13 are not

included in the statutory elements of any other offense on which sentence was imposed. Error was

not committed.

CONCLUSION

For the foregoing reasons, error was not committed and the Judgment of Sentence should be

affirmed.

BY THE COURT

ry ·L_ BRIGHT,l