Com. v. Szarko
| Decision Date | 12 November 1992 |
| Parties | COMMONWEALTH of Pennsylvania v. Vincent SZARKO, Appellant. |
| Court | Pennsylvania Superior Court |
John K. McDonald, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before CIRILLO, POPOVICH and HOFFMAN, JJ.
This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.
Appellant Vincent Szarko was tried before the Honorable Russell M. Nigro and convicted of statutory rape, indecent exposure, indecent assault, and corruption a minor. The victim, Szarko's stepdaughter, had been subjected to Szarko's sexual abuse for approximately two years. Following the denial of post-trial motions, Szarko was sentenced to a term of imprisonment of one to two years. This appeal followed. Szarko raises the following issues for our review:
1. Did the quashing of the subpoena issued to Judge Edward R. Summer deny the defendant access to exculpatory evidence?
2. Did the granting of the Commonwealth's motion in limine which limited the right of the defendant to question the credibility of the complainant, cause prejudice to the defendant in that:
it prevented the introduction of evidence that the complainant had made similar allegations against other males?
it prevented the defendant from responding to the closing argument of the prosecutor, who raised the issue as to how the complainant would know of the physical components of ejaculation if not from the defendant?
3. Did the trial court improperly admit into evidence documents and statements, which had not been supplied to the defendant the failure to advise the defendant of the exact or even approximate dates of the alleged occurrences?
pursuant to this discovery request, including:
the acceptance of testimony of alleged prior occurrences, even after a court of equal jurisdiction had previously heard the allegations?
4. Did the trial court err in sentencing the defendant for a period in excess of the "guidelines" without the required contemporaneous written statement?
5. Did the offenses for which the defendant was sentenced merge?
6. Was there any evidence of a consensual sexual relationship between the defendant and the complainant, sufficient to support the verdict?
The trial court has properly disposed of issues one, two, three, and six. We, therefore, rely upon the trial court's opinion, affirming its resolution of those claims.
In issue four, Szarko asserts that the sentencing court erred in sentencing him outside the guidelines without the required contemporaneous statement. This argument is meritless. The Sentencing Code provides in part:
In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.
42 Pa.C.S. § 9721(b) (emphasis added). A sentencing court need only consider the guidelines prior to sentencing; if the court chooses to sentence outside the guidelines, it must then explain the reasons for this deviation. Id. See Commonwealth v. Wright, 411 Pa.Super. 111, 600 A.2d 1289 (1991). 1 See also Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Contrary to Szarko's claim on appeal, however, the court did sentence within the guidelines. Statutory rape is a felony of the second degree, carrying an offense gravity score of six. According to the guidelines, the minimum term of confinement in the standard range is 4-12 months. The court sentenced Szarko to one to two years imprisonment; the minimum term, one year, is within the standard range. Szarko's claim, therefore, is factually baseless.
With respect to issue five, Szarko claims that the offenses of corruption of the morals of a minor and statutory rape should have merged for sentencing purposes. The trial court, in its opinion, stated that it agreed with Szarko's argument and recommended that this court vacate the sentence it had imposed for corruption of minors. See Commonwealth v. Fetzner, 372 Pa.Super. 469, 539 A.2d 890 (1988).
"The doctrine of merger has been invoked to limit duplicitous sentencing where one crime 'necessarily involves' the other, Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973); Commonwealth ex rel. Moszynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) or where a defendant committed what in effect amounts to a single criminal act, Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980)." Commonwealth v. Sayko, 511 Pa. 610, 614, 515 A.2d 894, 896 (1986).
In Fetzner, supra, this court stated: "Our Court has consistently held that a conviction for corruption of a minor is a 'lesser included offense and is therefore merged into a statutory rape conviction where the jury finds a defendant guilty on both [charges].' " Fetzner, 372 Pa.Super. Judgment of sentence affirmed. A copy of the trial court's opinion is attached for purposes of allocatur.
at 479, 539 A.2d at 894 (citations omitted). There, the information clearly indicated that the appellant had been charged with corrupting a minor "because he allegedly engaged in sexual intercourse with the minor victim." Id. at 480, 539 A.2d at 895. Here, the sexual abuse spanned a two year period and comprised more than one criminal act. The appellant engaged in acts tending to corrupt the morals of a minor other than the actual act of sexual intercourse, the latter specifically proscribed by the statutory rape statute. 18 Pa.C.S. § 3122. Thus, Szarko and the trial court have misapprehended the applicability of Fetzner to the instant case. Applying the Supreme Court's rationale in Sayko, supra, the offenses of statutory rape and corruption of minors do not merge for sentencing purposes
APPENDIX
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
April Term, 1990
Numbers 0023--0029
Commonwealth
v.
Vincent Szarko
OPINION
(Filed Nov. 7, 1991)
NIGRO J.
On November 13, 1990, following a trial before this Court sitting without a jury, the defendant was convicted of Statutory Rape, Indecent Exposure, Indecent Assault, and Corrupting A Minor. Post Verdict Motions were argued and denied on February 1, 1991. On that same date, the defendant was sentenced to not less than one year nor more than two years of incarceration.
The evidence adduced at trial was that over a period of years the defendant had subjected his stepdaughter, Leanne Kersch, to sexual advances. The victim testified that the first time the defendant had touched her was the week before Christmas in 1987 when the defendant had fondled her breasts and vagina. (N.T. 11/8/90, pp. 6, 12). The defendant continued to fondle the complainant on a regular basis for several months.
The victim, who at the time was eleven years of age, memorialized these events in her diary. The victim's brother, Michael, discovered the diary and showed it to his mother, Lilly Szarko. The victim's mother confronted her regarding the contents of the diary. The victim confirmed that what she had written in the diary was true. Lilly Szarko confronted the defendant who denied that Leanne's allegations were true. Lilly Szarko then then told the child, Leanne, to tell her if any incidents occurred again. (N.T. 11/8/90, 22-24).
Thereafter, Leanne received an orientation about child abuse that was given to her sixth grade class at school. The speaker was Philadelphia Police Officer Beverly Parker. After the lecture was given to her class, Leanne wrote a note to the officer which read:
Dear Offercer (sic) Parker,
My dad sexually abuses me I told my mom the first time but she said if it happens agean (sic), tell her but I am scared. What should I do.
Leanne Kersch
As a result of Leanne's letter, Officer Parker notified the school counselor, the school principal, and the child's mother. Subsequently, Leanne was removed from her home and placed through the Department of Human Services. In December, 1988, Leanne was permitted to move in with Nancy and Bill Hifferty, friends of the family, with whom she stayed until August of 1989. At that time, with the approval of the Honorable Edward R. Summers, Leanne was permitted to return home on the condition that locks be installed on the door of her bedroom and the bathroom, and that the defendant would not be permitted to be alone with her under any circumstances. (N.T. 11/8/90, pp. 28-31)
Soon after Leanne returned home the defendant began engaging in sexual activity with her. She testified that although she had private conversations with Judge Summers she did not reveal what was occurring because she did not want to be removed from her home again. (N.T. 11/8/90, p. 64).
Leanne testified that about three weeks into the school term the defendant knocked on her bedroom door, entered, naked from the waist down, undressed her, and then inserted his penis into her vagina. (N.T. 11/8/90, pp. 37-41). The defendant told Leanne that he was having sex with her because he "didn't get nothing off my mother." (N.T. 11/8/90, p. 46). In a subsequent incident, the defendant put his penis in the complainant's mouth and ejaculated. (N.T. 11/8/90, pp. 44-45).
Of the issues raised on appeal by the defendant, two relate to rulings made by other judges of equal jurisdiction. They are: whether the subpoena issued to the Honorable Edward R. Summers to testify was improperly quashed; and, whether the Commonwealth's Motion In Limine to prevent cross-examination of the complainant regarding her allegations of rape against another male was improperly granted. These issues, however, were...
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