J-S58035-17 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

PHILLIP D. COLTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 151 MDA 2017

Appeal from the Judgment of Sentence November 9, 2016

In the Court of Common Pleas of Centre County 

Criminal Division at No(s): CP-14-CR-0000454-2013

BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 28, 2017

Appellant, Philip D. Colton, appeals from the amended judgment of 

sentence, imposed in the Centre County Court of Common Pleas, following 

remand for resentencing on Appellant’s convictions for numerous sex 

offenses committed against the mentally disabled granddaughter of 

Appellant’s paramour. We affirm. 

The trial court opinion fully and correctly set forth the relevant facts 

and procedural history of this case. Therefore, we have no reason to restate 

them. 

Appellant raises one issue on appeal:

DID THE SENTENCING COURT ERR IN IMPOSING TWO 

SEPARATE SENTENCES ON CENTRE COUNTY CRIMINAL 

INFORMATION NO. CP-14-CR-454-2013, COUNT 1, RAPE, 

MENTALLY DISABLED PERSON, 18 PA.C.S.A. § 3121(A)(5), 

AND COUNT 2, RAPE OF A CHILD, 18 PA.C.S.A. § 3121(C), 

FOR ONE SINGLE ACT OF RAPE? 
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(Appellant’s Brief at 9). 

Appellant argues he should not be subject to two separate sentences 

at Centre County Criminal Information No. CP-14-CR-454-2013, Count 1, 

Rape, Mentally Disabled Person at 18 Pa.C.S.A. § 3121(A)(5), and Count 2, 

Rape of a Child at 18 PA.C.S.A. § 3121(C), for one single act of rape.

Appellant contends the Commonwealth charged only a single act of rape,

which cannot support a separate sentence for violating two subsections of 

the same statute, despite the fact that the evidence supports both 

convictions. Appellant claims the court’s imposition of more than one 

punishment for a single offense conflicts with the fundamental principles of 

double jeopardy prohibition against multiple punishments for the same 

offense. Appellant concludes this Court should vacate the judgment of 

sentence on Count 2 at Criminal Information No. 0454-2013, because it is 

merely an alternative for the same Rape offense punished in Count 1. We 

disagree. 

Whether crimes merge for sentencing purposes implicates the legality 

of the sentence. Commonwealth v. Tanner, 61 A.3d 1043, 1046 

(Pa.Super. 2013). Therefore, our standard of review is de novo and our 

scope of review is plenary. Id. Merger of sentences is governed generally 

by Section 9765 of the Sentencing Code, which provides:

§ 9765. Merger of sentences
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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.

42 Pa.C.S.A. § 9765. “[T]he language of the legislature is clear. The only 

way two crimes merge for sentencing is if all elements of the lesser offense 

are included within the greater offense.” Commonwealth v. Coppedge, 

984 A.2d 562, 564 (Pa.Super. 2009) (stating cases decided before effective 

date of Section 9765 are not instructive in merger analysis; regardless of 

whether facts of particular case comprise both crimes; if elements of crimes 

differ, i.e., if one offense can be committed without committing other 

offense, crimes do not merge under legislative mandate of Section 9765). 

The Crimes Code defines the offenses of rape of a child and rape of a 

mentally disabled person, in relevant part, as follows:

§ 3121. Rape

(a) Offense defined.−A person commits a felony of 

the first degree when the person engages in sexual 

intercourse with a complainant:

* * *

(5) Who suffers from a mental disability which 

renders the complainant incapable of consent. 

* * *

(c) Rape of a child.−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. 
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18 Pa.C.S.A. § 3121(a)(5), (c). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Katherine V. 

Oliver, we conclude Appellant’s issue merits no relief. The Trial Court 

opinion fully discusses and properly disposes of the question presented. 

(See Trial Court Opinion, filed April 10, 2017, at 3-6) (finding: merger of 

offenses on Counts 1 and 2 at Criminal Information No. 0454-2013 for 

sentencing is prohibited, unless offenses arose from single criminal act and

all statutory elements of one offense are included in other; although single 

criminal act gave rise to Counts 1 and 2 at Criminal Information No. 0454-

2013, each offense includes element other does not; Count 1, rape of 

mentally disabled person, includes element that victim was mentally 

disabled, which is not element of offense of rape of child; Count 2, rape of 

child, includes element that victim was child less than 13 years of age, which 

is not element of rape of mentally disabled person; merger of sentences for 

Counts 1 and 2 is therefore prohibited; imposing separate sentences for 

each offense did not violate double jeopardy guarantees under state or 

federal constitution). The criminal conduct at issue involved a single 

criminal act, but the charges at Counts 1 and 2 each include an element that 

the other does not. Thus, merger for sentencing was unwarranted; and the 

separate sentences imposed must stand. Accordingly, we affirm. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/28/17
Circulated 11/27/2017 02:59 PM I IIII Mllll!l �I OOD0tlTT9 ctGPR0lD1812 

IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA 

CRIMINAL ACTION-LAW 

COMMONWEALTH OF PENNSYLVANIA 

v. 

PHILLIP D. COL TON 

Defendant 

Attorney for the Commonwealth: 

Attorney for Defendant: 

Oliver, J. 

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No. CP-14-CR-454-2013 

No. CP-14-CR-531-2014 

Stacy Parks Miller, Esq. 

Deborah Lux, Esq. 

1925(a) OPINION 

Defendant Phillip Colton appeals from a sentence imposed on November 9, 2016. 

Defendant was sentenced on that date at Centre County Criminal Information No.'s 454-2013 

and 531-2014. In his appeal, Defendant contends that the Court's sentences imposed at Counts 1 

and 2 oflnformation No. 454-2013 violate Defendant's double jeopardy rights under the federal 

and state constitutions. 

Defendant filed a post-sentence motion on November 18, 2016, which was denied after 

argument on December 30, 2016. Defendant filed a notice of appeal and a timely

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Following a jury trial on July 1, 2014, Defendant Phillip Colton was convi.§letf of 

numerous sex crimes stemming from sexual offenses committed over a three year period against 

his paramour's granddaughter, a mentally disabled minor. 

Defendant was first sentenced on September 23, 2014 by the Honorable Bradley P. 

Lunsford. The aggregate state prison sentence imposed by Judge Lunsford was 30 to 60 years. 

Defendant challenged his sentence on appeal, arguing that the mandatory minimum sentences 

imposed by the Court pursuant to 42 Pa.C.S. §9718 were illegal under Alleyne v. United States, 

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Background 
133 S. Ct. 2151 (2013). The Superior Court agreed that the mandatory minimum sentences were 

illegal. Finding that vacating these sentences upset the overall sentencing scheme, the Superior 

Court vacated Defendant's judgment of sentence in its entirety and remanded the matter for resentencing.' (Superior Ct. Opin. and Order, Feb. 5, 2016). 

Following remand, a sentencing hearing was conducted on November 9, 2016. At the 

hearing, the Court noted the intent to follow the general principle that a greater aggregate 

sentence should not be imposed on resentencing after a successful appeal so as not to punish 

Defendant for exercising his appeal rights. (See Tr. Nov. 9, 2016 Hr'g, at p. 28). The Court also 

expressed the belief that a lesser sentence was not warranted in this case, and noted that, in 

devising the overall sentence, the Court had attempted to attach periods of incarceration to the 

various different incidents and crimes while staying within the 30 to 60 year aggregate. (Id. p. 

29). 

In re-sentencing, the Court imposed an aggregate incarceration sentence of 30 to 60 

years, broken down as follows: 

Information No. 454-2013 

Count 1, Rape of a Mentally Disabled Person ( 18 Pa. C. S. §3121 (a)( 5)): 4 - 8 years 

Count 2, Rape ofa Child (18 Pa. C.S.A. § 3121(c)): 6 -12 years 

Sentences of incarceration for Counts 7 and 8 were concurrent to Count 2. There was no 

separate sentence for Counts 3-6. Count 10 merged for purposes of sentencing. Count 9 was no! 

prossed at the direction of the Commonwealth. 

Information No. 531-2014 

Count 1, Rape of a Mentally Disabled Person (18 Pa.C.S. §3121(a)(5)): 5-10 years 

Count 2, Rape of a Mentally Disabled Person (18 Pa.C.S. §312l(a)(5)): 5-10 years 

Count 3, Rape of a Mentally Disabled Person (18 Pa.C.S. §3121(a)(5)): 5-10 years 

I Defendant was not successful on all of the issues pursued on appeal to the Superior Court, and filed a Petition for 

Allowance of Appeal to the Pennsylvania Supreme Court. Defendant's Petition was denied by Order dated July 27, 

2016. 

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Count 22, Aggravated Indecent Assault of a Child (18 Pa.C.S. § 3125(b )): 5-10 years 

Sentences of incarceration at Counts 24, 37-40, 48, 51, 59 and 62 were imposed as concurrent 

sentences.' 

The conduct giving rise to the various charges against Defendant in the two Informations 

involved twelve incidents. The conduct giving rise to the charges at Information No. 454-2013 

involved two separate incidents. The charges at Counts 1 and 2, however, arose from a single 

incident of rape. In his appeal, Defendant contends that the Court erred by imposing two 

separate sentences for the rape charges at Counts 1 and 2 ofinformation No. 454-2013, both 

violations of 18 Pa. C. S. § 3121 albeit different subsections of that statute, because there was only 

one underlying act ofrape. (See Def's, Post-Sentence Mot., at 17-18). Specifically, Defendant 

contends that imposing separate punishments for violations of more than one subsection of the 

same criminal statute violates fundamental principles of double jeopardy when the underlying 

conduct involves but one act. (See id.). Defendant requests that his sentence at Count 2 of 

Information No. 454-2013 be vacated. 

Discussion 

Resolution of Defendant's sentencing challenge is governed by 42 Pa.C.S. § 9765, 

Pennsylvania's statutory mandate pertaining to merger of sentences. Pursuant to section 9765: 

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. 

42 Pa.C.S. § 9765. The Pennsylvania Supreme Court has interpreted section 9765 as prohibiting 

merger unless: (1) the crimes at issue arise from a single criminal act, and (2) all statutory 

elements of one of the offenses are included in the statutory elements of the other. 

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). In Baldwin, the Court characterized 

section 9765 as a clear expression of the legislature's intent with respect to merger and the ability 

to punish separate offenses arising from the same conduct so long as each offense includes an 

element that the other does not. See Baldwin, 985 A.2d at 834-83 7. The Court also determined 

2 Defendant was convicted on numerous other Counts for which incarceration sentences were not imposed. 

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that, in the context of this clear legislative intent, double jeopardy is not implicated. Id. at 837. 

After reviewing the history of double jeopardy jurisprudence and the merger doctrine, the 

Baldwin Court stated: 

[W]e reject Appellant's claim that the legislature's decision to 

impose an elements test for merger of sentence violates double 

jeopardy protections. Indeed, the [United States Supreme] Court 

has explained: "[T]he Fifth Amendment double jeopardy 

guarantee serves principally as a restraint on courts and 

prosecutors. The legislature remains free under the Double 

Jeopardy Clause to define crimes and fix punishments . .. " 

Id. at 836. The crimes at issue in Baldwin were violations of 18 Pa.C.S. § 6106 and§ 6108, 

carrying a firearm without a license and carrying a firearm on public streets or property of 

Philadelphia. Both violations were based on a single criminal act. Based on the analysis 

discussed above, the Baldwin Court concluded that the offenses did not merge, and that the 

imposition of separate sentences did not violate the double jeopardy clause under the federal 

constitution. Id. at 83 7. 

In Commonwealth v. Wade, 33 A.3d 108 (Pa. Super. 2011), appeal denied, 51 A.3d 839 

(Pa. 2012), the Pennsylvania Superior Court extended the Baldwin analysis to double jeopardy 

challenges under the Pennsylvania constitution. In that case, the defendant was convicted and 

sentenced for the crimes of robbery-threat of serious bodily injury and robbery of a motor 

vehicle. Id. at 113. Both convictions resulted from a single criminal act when the defendant 

threatened the owner of a vehicle while in the process of stealing it. Id. at 117-18. The 

defendant in Wade argued that the robbery offenses were cognate offenses, that the facts 

underlying his convictions for each were identical, and that merger statute (section 9765), as 

applied in his case, violated the Pennsylvania Constitution's bar against double jeopardy. Id. at 

116-17. The Superior Court disagreed, finding that the United States Supreme Court has rejected 

double jeopardy challenges under the federal constitution in similar circumstances, and that there 

is an absence of authority to suggest that the Pennsylvania Constitution's double jeopardy clause 

affords greater protection in the context of merger than does the federal constitution. The Court 

ultimately concluded that "the framers of the Pennsylvania Constitution never intended to restrict 

the legislature, via our double jeopardy clause, from defining merger of sentence issues." Id. at 

121. 

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In the case at bar, Defendant argues that imposition of separate sentences at Information 

No. 454-2013 for Counts 1 and 2, Rape of a Mentally Disabled Person and Rape of a Child, ran 

afoul of the double jeopardy clauses in the federal and state constitutions and, thus, resulted in an 

illegal sentence. (See Def's Concise Statem., at 12). Based on the authorities discussed above, 

the Court concludes that Defendant's double jeopardy challenge lacks merit. As recognized in 

Baldwin, the intent of the legislature that separate punishments be permissible for violations of 

these two statutory provisions is clearly expressed in Pennsylvania's merger statute, 42 Pa.C.S. § 

9765. Merger of offenses for sentencing is prohibited unless the offenses arise from a single 

criminal act and all statutory elements of one offense are included in the other. Id. at 833. 

In the instant case, although the criminal conduct giving rise to the rape charges at 

Information No. 454-2013 involved a single criminal act, the rape of the victim, the crimes 

charged at Counts 1 and 2 each include an element that the other does not. Count 1, Rape of a 

Mentally Disabled Person, includes the element that the victim was mentally disabled, an 

element not included in the offense of Rape of a Child. On the flip side, the elements of Rape of 

a Child include the element that the victim was a child less than 13 years of age, an element not 

included in the offense of Rape of a Mentally Disabled Person. (See 18 Pa.C.S. §3121(a)(5), (c); 

Pa. Standard Crim. Jury Instructions, 15.3121B, D). Thus, section 9765 prohibits merger, and 

imposing separate sentences for each offense was not a violation of the double jeopardy 

guarantees under the state or federal constitution. 

Defense counsel cites to Commonwealth v. Dobbs, 682 A.2d 388 (Pa. Super. 1996) and 

Commonwealth v. Rhoads, 636 A.2d 1166 (Pa. Super. 1994) as supporting the argument that 

double jeopardy prohibits separate sentences for Counts 1 and 2. These cases, which were 

decided before the enactment of Pennsylvania's merger statute, 42 Pa.C.S. § 9765, are 

inapposite. 

Finally, the Court also notes that, during argument on Defendant's post-sentence motion, 

Defendant took the position that, because he was challenging only the sentences at Counts 1 and 

2 oflnformation No. 454-2013, if the Court were to accept his challenge, the Court would be 

limited in re-sentencing to vacating the sentence at Count 2 of Information No. 454-2013. (See 

Tr. Dec. 30, 2016 Hr' g at p. 10). Assuming arguendo, the imposition of separate sentences at 

Counts 1 and 2 violates double jeopardy as Defendant contends, the Court believes that re5 
sentencing on all of the Counts at Information No.'s 454-2013 and 531-2014 would be the only 

appropriate remedy, as the Court expressly stated during sentencing that the assignment of 

incarceration sentences to particular Counts was part of an overall sentencing scheme with a 30- 

60 year aggregate, and vacating the sentence as to only certain of the Counts would be disruptive 

of that entire scheme. See Commonwealth v. Sutton, 583 A.2d 500 (Pa. Super. 1990), appeal 

denied, 536 A.2d 156 (Pa. 1991). 

BY THE COURT: 

Date: l/-/Qr I '7 

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atheri�ne V. Oliver, Judge ....___