Commonwealth v. Brown, No. 481 WDA 2016

CourtPennsylvania Superior Court
Writing for the CourtOPINION BY MOULTON, J.
Citation159 A.3d 531
Docket NumberNo. 481 WDA 2016
Decision Date28 March 2017
Parties COMMONWEALTH of Pennsylvania, Appellee v. Shawn M. BROWN, Appellant

159 A.3d 531

COMMONWEALTH of Pennsylvania, Appellee
v.
Shawn M. BROWN, Appellant

No. 481 WDA 2016

Superior Court of Pennsylvania.

Submitted November 21, 2016
FILED MARCH 28, 2017


Victoria H. Vidt, Public Defender, Pittsburgh, for appellant.

Rebecca G. McBride, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

159 A.3d 532

BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

OPINION BY MOULTON, J.:

Shawn M. Brown appeals from the March 7, 2016 judgment of sentence entered in the Allegheny County Court of Common Pleas following his jury trial convictions for rape of a child, involuntary deviate sexual intercourse ("IDSI") with a child, unlawful contact with minor, indecent assault of person less than 13, and corruption of minors.1 We conclude that the convictions for rape of a child and IDSI with a child merge for sentencing purposes. Because the trial court imposed separate sentences for both convictions, we vacate the judgment of sentence and remand for resentencing.

On May 18, 2015, the Commonwealth filed an information charging that Brown committed the above-referenced offenses on March 1, 2011. The victim was Brown's male cousin, who was 11 years old at the time of the offense. The parties agree that, although at trial the victim testified that Brown had the victim perform oral sex on more than one occasion, the Commonwealth charged only one underlying act of oral sex for both the rape of a child and the IDSI with a child counts. Brown's Br. at 16; Cmwlth's Br. at 9; see Criminal Information, 6/31/15.

On December 11, 2015, a jury found Brown guilty of all charges, including rape of a child and IDSI with a child. On March 7, 2015, the trial court sentenced Brown to 120 to 240 months' imprisonment plus 5 years' probation for the rape of a child conviction; 60 to 120 months' imprisonment plus 5 years' probation for the IDSI with a child conviction; and 5 years' probation for the indecent assault conviction.2 The trial court imposed no further penalty for the convictions for unlawful contact with a minor and corruption of a minor.

Brown filed a timely notice of appeal and raises one issue on appeal: "Is the sentence imposed upon Mr. Shawn Brown illegal, and must it be vacated, in that it violates the Double Jeopardy clause of the United States Constitution when a court imposes two sentences for one criminal act?" Brown's Br. at 6. Brown, the Commonwealth, and the trial court agree that the trial court erred in imposing a sentence for both the rape of a child and IDSI with a child convictions.

"A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence," for which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Nero , 58 A.3d 802, 806 (Pa.Super. 2012) (quoting Commonwealth v. Quintua , 56 A.3d 399, 400 (Pa.Super. 2012) ).

The statute governing the merger of sentences provides:

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.
159 A.3d 533

42 Pa.C.S. § 9765. The statute "prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other." Commonwealth v. Baldwin , 604 Pa. 34,985 A.2d 830, 833 (2009).3

The Commonwealth concedes that the crimes arose from one criminal act of oral sex on March 1, 2011, Cmwlth.'s Br. at 11, and the information charged Brown with rape of child and IDSI with child based on one act of oral sex. Therefore, pursuant to section 9765, we must determine whether "all of the statutory elements of one offense are included in the statutory elements of the other offense." 42 Pa.C.S...

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16 cases
  • Commonwealth v. Tighe, 266 MDA 2017
    • United States
    • Superior Court of Pennsylvania
    • April 12, 2018
    ...proved indecent assault of a person under sixteen. Accordingly, the convictions merge for sentencing purposes. See Commonwealth v. Brown , 159 A.3d 531 (Pa.Super. 2017) (rape of a child merged with IDSI of a child). Since the trial court imposed a consecutive sentence on the charge of indec......
  • Commonwealth v. Yandamuri, 710 CAP
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 26, 2017
    ...for each of the murders committed.27 XII. ConclusionThe judgment of sentence is affirmed, and the Prothonotary is directed to transmit 159 A.3d 531the record to the Governor. See 42 Pa.C.S. § 9711(i).Chief Justice Saylor and Justices Todd, Donohue, Dougherty, Wecht and Mundy join the opinio......
  • Goodwin v. Pennridge Sch. Dist., CIVIL ACTION NO. 17-2431
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 31, 2019
    ...intercourse," 18 Pa. C.S. § 3121, and "sexual intercourse" includes "intercourse per os," 18 Pa. C.S. § 3101. Commonwealth v. Brown, 159 A.3d 531, 534 (Pa. Super. 2017) (forced intercourse per os, i.e., oral sex, is rape).3 Doe v. Pennridge Sch. Dist., No. 17-3570, 2019 WL 2011069 (E.D. Pa.......
  • Commonwealth v. Butler, 1225 WDA 2016
    • United States
    • Superior Court of Pennsylvania
    • October 31, 2017
    ...and we may raise it sua sponte. We review the legality of a sentence de novo and our scope of review is plenary. Commonwealth v. Brown, 159 A.3d 531, 532 (Pa. Super. 2017) (citation omitted). Moreover, "[o]ur Supreme Court has instructed that we must presume that statutes are constitutional......
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