Separate sentences for 18 Pa.C.S.§§3121(c) and 3123(b) not allowed

Commonwealth v. Brown, 2017 PA Super. 79 (3/28/17)

A jury convicted Mr. Brown of 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. Although the victim testified about multiple incidents of oral sex, the Commonwealth only filed one count each for 18 Pa.C.S.§§3121(c) and 3123(b) for one date.  He received lengthy consecutive sentences for both counts.

Claims that crimes merged for sentencing purposes implicate the legality of the sentence. The merger statute, 42 Pa.C.S. § 9765, which codifies the Pennsylvania’s merger jurisprudence, reads:

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.

Citing earlier case law, the Court held that imposing two sentences for one act of penetration is illegal under the double jeopardy clause of the United States Constitution. It concluded that the offenses of rape of a child and IDSI with a child are identical where the sexual act at issue is oral sex. Thus, the separate sentences were illegal, and the matter was remanded for resentencing.


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