Com. v. Miller

• Decision Date: 23 October 2003
• Citation: 2003 PA Super 395,835 A.2d 377
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Tony MILLER, Appellant.
• Court: Pennsylvania Superior Court

835 A.2d 377

2003 PA Super 395

COMMONWEALTH of Pennsylvania, Appellee, v. Tony MILLER, Appellant.

Superior Court of Pennsylvania.

Submitted May 5, 2003.

Filed October 23, 2003.

Matthew P. Kelly, Wilkes-Barre, for appellant.

Frank O. Barletta, Assistant District Attorney, Wilkes-Barre, for Com., appellee.

Before: ORIE MELVIN, TODD, and TAMILIA, JJ.

TODD, J.

¶ 1 Tony Miller appeals the judgment of sentence imposed by the Luzerne County Court of Common Pleas after he pled nolo contendere to one count of sexual assault¹ and one count of corruption of minors.² Miller was sentenced to a term of 5 to 10 years incarceration on the charge of sexual assault, and a consecutive term of 19 to 28 months incarceration on the charge of corruption of minors. We affirm.

¶ 2 The relevant facts of the instant case are as follows: On February 21, 2001, Miller was charged with rape, aggravated indecent assault, sexual assault, endangering the welfare of children, and corruption of minors. The charges originated from Miller's contact with his girlfriend's niece, who was seven years of age. The Affidavit of Probable Cause contained in the criminal complaint indicated that the victim told police that while she was at her aunt's apartment, Miller had intercourse with her. When asked how many times it had happened, the victim was unable to give an exact number, but indicated that it had happened on the couch, floor, and in the bedroom. (Criminal Complaint, 2/21/01.) An examination by the victim's family doctor corroborated the victim's allegation that she had been sexually assaulted.

¶ 3 The information filed against Miller on August 22, 2001 alleged that Miller committed the charged offenses "on various dates from January of 2000 through January 31, 2001." (Information, 8/22/01.) On December 6, 2001, Miller pled nolo contendere to the charges of sexual assault and corruption of minors, and the remaining charges were nolle prossed by the Commonwealth. This timely appeal followed.

¶ 4 On appeal, Miller first argues that the trial court erred in failing to apply the doctrine of merger for purposes of sentencing on sexual assault and corruption of minors. Our Supreme Court, in Commonwealth v. Gatling, set forth the standard for determining when convictions should merge for the purposes of sentencing:

The preliminary consideration is whether the facts on which both offenses are charged constitute one solitary criminal act. If the offenses stem from two different criminal acts, merger analysis is not required. If, however, the event constitutes a single criminal act, a court must then determine whether or not the two convictions should merge. In order for two convictions to merge: (1) the crimes must be greater and lesser-included offenses; and (2) the crimes charged must be based on the same facts. If the crimes are greater and lesser-included offenses and are based on the same facts, the court should merge the convictions for sentencing; if either prong is not met, however, merger is inappropriate.

570 Pa. 34, 48, 807 A.2d 890, 899 (2002) (plurality opinion) (footnote omitted).³

¶ 5 Miller contends that the crimes to which he pled nolo contendere emanated from a single act, and argues that the trial court erred in relying on the Commonwealth's Affidavit of Probable Cause to conclude that the two offenses occurred at different times and dates, since the affidavit "fails to specify whether the alleged incidents which took place on the `couch, floor and bedroom' were actually three separate assaults or a continuous assault that extended to three different locations, or even the same location." (Appellant's Brief at 7.) Regardless, Miller concedes that his plea of nolo contendere was based on the facts as set forth in the criminal information, and, as noted above, the criminal information charged that Miller committed the offenses "on various dates from January of 2000 through January 31, 2001." (Criminal Information, 8/22/01.) Thus, to the extent Miller argues that his plea was based on the allegations contained in the criminal information and not in the Affidavit of Probable Cause contained in the criminal complaint, we conclude that there was a sufficient basis for the trial court to determine that the offenses did not constitute one solitary criminal act. For this reason, we reject Miller's contention that a merger analysis is required under Gatling, supra.

¶ 6 Miller next challenges the trial court's imposition of a sentence in the aggravated range of the sentencing guidelines on the charge of corruption of minors. Sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be disturbed absent an abuse of discretion. Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.Super.2001). Where an appellant challenges the discretionary aspects of a sentence, there is no automatic right to appeal and an appellant's appeal should be considered a petition for allowance of appeal. Id. Before a challenge to a judgment of sentence will be heard on the merits, an appellant first must set forth in his or her brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his or her sentence. Id; see also Pa.R.A.P. 2119(f). We note that Miller has complied with this requirement.

¶ 7 In addition, an appellant must show that there is a substantial question as to whether the imposed sentence was inappropriate under the Sentencing Code. See id.; 42 Pa.C.S.A. § 9781(b). Whether an issue raises a substantial question is a determination that must be made on a case-by-case basis; however, in order to establish a substantial question, the appellant generally must establish that the sentencing court's actions either were inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process. Ritchey, 779 A.2d at 1185.

¶ 8 In his Rule 2119(f) statement, Miller contends that the trial court failed to place sufficient reasons on the record to support a sentence in the aggravated range. This Court has held that an assertion that the sentencing court failed to sufficiently state its reasons for the sentence imposed raises a substantial question. Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.Super.2003).

¶ 9 We note, however, that in the argument portion of his brief, Miller does not pursue his argument that the trial court failed to place its reasons for sentencing on the record. Rather, Miller asserts that the trial court improperly sentenced him in the aggravated range "based on the fact that the crimes involved a seven year old victim and that the Appellant committed this act while in a position of trust," (Appellant's Brief at 9), because both of these factors have already been accounted for under the statutory definition of...