J-S10007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES HUSSEY,

Appellant No. 1701 EDA 2016

Appeal from the Judgment of Sentence Entered January 11, 2016

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0001919-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 20, 2017

Appellant, James Hussey, appeals from the judgment of sentence of an 

aggregate term of 4 to 8 years’ incarceration, imposed after a jury convicted 

him of various sexual offenses committed against a minor female victim. 

Appellant raises seven claims on appeal, including challenges to evidentiary 

decisions by the trial court, as well as the legality of his sentence. After 

careful review, we affirm.

Briefly, Appellant’s convictions stemmed from his touching the victim, 

his niece, in a sexually inappropriate manner on two different occasions. 

Following a jury trial, Appellant was convicted of two counts each of the 

following offenses: indecent assault of a person less than 13 years of age, 

18 Pa.C.S. § 3126(a)(7); endangering the welfare of a child (EWOC), 18 

Pa.C.S. § 4304(a)(1); and corruption of a minor (COM), 18 Pa.C.S. § 6301. 

On January 11, 2016, Appellant was sentenced to consecutive terms of 1 to 
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2 years’ incarceration for each count of indecent assault and EWOC for which 

he was convicted, totaling an aggregate term of 4 to 8 years’ incarceration. 

Appellant’s two counts of COM merged for sentencing purposes. 

Appellant filed a timely post-sentence motion and the trial court 

conducted a hearing on that motion on February 23, 2016. On April 28, 

2016, the court issued an order and an accompanying opinion denying 

Appellant’s post-sentence motion. Appellant filed a timely notice of appeal, 

and he also timely complied with the trial court’s order to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. On June 20, 

2016, the trial court issued a Rule 1925(a) opinion.1

On appeal, Appellant presents seven claims for our review:

1. Whether, prior to trial, the [t]rial [c]ourt committed an error 

of law when it denied [Appellant’s] proffer of expert testimony 

on the phenomenon of false confessions in general, and where 

the trial court’s ruling substantially agreed with 

____________________________________________

1 Therein, the trial court states that all of the issues raised by Appellant in 

his Rule 1925(b) statement were addressed in its April 28, 2016 opinion 

denying his post-sentence motion. The record belies the trial court’s 

conclusion. In his Rule 1925(b) statement, Appellant presented seven 

issues for this Court’s review; only one of those issues, a challenge to 

Appellant’s sentence, was addressed by the court in its April 28, 2016 

opinion. The lack of a trial court opinion regarding Appellant’s remaining 

issues makes our review of his claims more difficult; however, it does not 

impede us from meaningfully assessing his arguments, as the reasons for 

the trial court’s challenged rulings are evident in the record. Thus, while we 

could remand this case for the court to file an appropriate responsive 

opinion, we decline to do so. 
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Com[monwealth] v. Alicia, 625 Pa. 429[, 92 A.3d 753] (Pa. 

2014) (disallowing testimony on false confessions in general)?

2. Whether, prior to trial and under Crawford v. Washington, 

541 U.S. 36 (2004), the [t]rial [c]ourt committed an error of law 

when it allowed the admission of the hearsay statements of the 

minor victim ... made to Dr. Horn-Alsberge?

3. Whether, prior to trial, the [t]rial [c]ourt abused its discretion 

when it permitted the victim’s mother ... and Dr. Horn-Alsberge, 

to testify to the hearsay statements of the minor victim ... and 

where the statements were redundant, needlessly cumulative, 

and unduly prejudicial?

4. Whether, prior to trial, the [t]rial [c]ourt abused its discretion 

when it permitted the introduction of ... a “Story Book” compiled 

under the supervision of Dr. Horn-Alsberge containing an 

additional recitation of the minor victim’s statement handillustrated by the minor victim and where this exhibit was 

needlessly cumulative and unduly prejudicial?

5. Whether, during trial, the [t]rial [c]ourt abused its discretion 

when it failed to apply the Business Records Exception and 

sustained the Commonwealth’s objection to the testimony of 

Anna Parys of Monroe County Children and Youth?

6. Whether, during trial, the [t]rial [c]ourt committed an error of 

law when it limited [Appellant’s] expert witness[’s] testimony on 

the topic of false reports?

7. Whether, at sentencing, the [t]rial [c]ourt committed an error 

of law when it found that counts one and two, Indecent Assault, 

did not merge for sentencing purposes with counts three and 

four, [EWOC]?

Appellant’s Brief at 9.

Appellant’s first six issues challenge evidentiary rulings made by the 

trial court. 

The standard of review employed when faced with a challenge to 

the trial court's decision as to whether or not to admit evidence 

is well settled. Questions concerning the admissibility of 

evidence lie within the sound discretion of the trial court, and a 

reviewing court will not reverse the trial court's decision absent a 
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clear abuse of discretion. Abuse of discretion is not merely an 

error of judgment, but rather where the judgment is manifestly 

unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill 

will. 

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations 

omitted).

In Appellant’s first issue, he challenges the trial court’s decision to 

preclude him from presenting expert testimony regarding “the phenomenon 

of false confessions....” Appellant’s Brief at 18. Appellant acknowledges that 

our Supreme Court has held that this specific type of expert testimony 

“constitutes an impermissible invasion of the jury’s role as the exclusive 

arbiter of credibility.” Id. (citing Alicia, 92 A.3d at 764). Appellant 

contends, however, that Alicia “should be overturned as violating [] 

Appellant’s right to Due Process.” Id. 

This Court has no authority to overrule Alicia. Our Supreme Court 

has declared that “the intermediate appellate courts are duty-bound to 

effectuate [our Supreme] Court’s decisional law.” Walnut Street 

Associates, Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa. 

2011). The Court has also declared that “[i]t is beyond peradventure that 

the Superior Court must follow [the Supreme] Court’s mandates, and it 

generally lacks the authority to determine that [the Supreme] Court’s 

decisions are no longer controlling.” Id. (citing Commonwealth v. Jones, 

554 A.2d 50, 51-52 (Pa. 1989)). Accordingly, this Court cannot overturn our 

Supreme Court’s decision in Alicia. As Appellant concedes that the trial 
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court followed Alicia in refusing to admit the at-issue expert testimony, his 

challenge to the court’s decision in that regard is meritless.

Next, Appellant contends that his Confrontation Clause rights were 

violated because of how the Commonwealth presented the victim’s 

testimony in this case. The entirety of Appellant’s argument is as follows:

Here, the victim did not testify face to face, but testified 

via [a] contemporaneous alternative method. This is not 

problematic in itself, but was compounded by the fact that the 

victim was excused after her testimony and then her statements 

were re-introduced through other figures who could not then be 

cross-examined on the victim’s statements to any meaningful 

effect. As such, the jury was presented with reinforced 

statements by the victim which were in no way meaningfully 

challenged by cross-examination. The prior opportunity to 

cross-examine, in such circumstances, cannot be deemed 

‘adequate.’

Appellant’s Brief at 19. 

Appellant’s argument lacks citation to, let alone discussion of, any 

pertinent legal authority. This Court has stated:

When briefing the various issues that have been 

preserved, it is an appellant’s duty to present arguments that 

are sufficiently developed for our review. The brief must support 

the claims with pertinent discussion, with references to the 

record and with citations to legal authorities. Citations to 

authorities must articulate the principles for which they are 

cited. 

This Court will not act as counsel and will not develop 

arguments on behalf of an appellant. Moreover, when defects in 

a brief impede our ability to conduct meaningful appellate 

review, we may dismiss the appeal entirely or find certain issues 

to be waived.
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Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007), appeal 

denied, 940 A.2d 362 (Pa. 2008) (citations omitted).

Even if Appellant’s undeveloped argument was adequate to permit our 

meaningful review of his claim, he has nevertheless waived this issue by 

failing to cite to where in the record he objected to the Commonwealth’s 

decision to call the victim to the stand first, and then excuse her before 

calling its other witnesses. Appellant indicates that this issue was raised in a 

pretrial motion filed on September 14, 2015. See Appellant’s Brief at 10, 

19. However, our review of that motion reveals that Appellant did not 

specifically assert this claim therein. Additionally, he did not object when 

the Commonwealth called the victim as its first witness at trial, nor when the 

victim’s mother took the stand after the victim had testified. See N.T. Trial, 

10/27/15, at 33, 74. Appellant also did not object when the victim’s mother 

testified about statements made to her by the victim. See id. at 78, 81-83. 

Consequently, without Appellant’s specifying where in the record he 

preserved the claim that his Confrontation Clause rights were violated by the 

victim’s testifying first in this case, he has waived this claim for our review. 

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”). 

In Appellant’s third issue, he argues that the trial court abused its 

discretion by admitting the testimony of the victim’s mother and Dr. Michelle 

Horn-Alsberge, a psychologist who counseled the victim in this case. 
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According to Appellant, these witnesses’ testimony should have been 

excluded under Pa.R.E. 403, which states: 

The court may exclude relevant evidence if its probative value is 

outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue 

delay, wasting time, or needlessly presenting cumulative 

evidence.

Pa.R.E. 403. 

Appellant’s entire argument regarding why the testimony of the 

victim’s mother and Dr. Horn-Alsberge should have been excluded under 

Rule 403 is as follows:

The testimony of [the victim’s mother] and Dr. HornAlsberge was needlessly repetitive of the victim’s own testimony. 

Nothing testified to by either witness added anything to the trial 

beyond vouching for the victim’s credibility. This testimony also 

unfairly prejudiced [] Appellant by supplanting the jury’s role of 

judging the victim’s credibility with judging other witness[es]’ 

credibility who were not witnesses to the alleged criminal act. 

The danger of the jury[’s] improperly relying upon the credibility 

of the victim’s mother and doctor to establish that the sexual 

assault [occurred] ... far outweighed the probative value of their 

testimony.

Appellant’s Brief at 20.

Again, Appellant has presented this Court with an undeveloped 

argument that is insufficient to permit our meaningful review of his claim. 

Appellant does not cite to any case law to support his assertion that these 

witnesses’ testimony should have been excluded under Rule 403. More 

problematic, however, is Appellant’s total failure to point to any specific 

testimony by these witnesses that was cumulative or allegedly impeded the 
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jury’s credibility determinations. Consequently, we deem this claim waived 

for our review. See Hardy, 918 A.2d at 771.

We reach the same conclusion for Appellant’s fourth issue, in which he 

provides only one sentence of argument: “Given the similar bases for 

appeal, the discussion of issue three (3) above, suffices for a discussion of 

the admission of the ‘Story Book’ as well.” Appellant’s Brief at 21. Because 

Appellant’s argument in support of his third issue was insufficient to avoid 

waiver of that claim, his fourth issue is waived as well. See Hardy, 918 

A.2d at 771.

In Appellant’s fifth issue, he asserts that the trial court abused its 

discretion by not permitting him “to introduce a Children and Youth 

[Services (CYS)] report containing statements by the victim and her 

mother,” which, according to Appellant, “implicated a different person ... in 

the sexual assault at issue in this case.” Appellant’s Brief at 22. At trial, 

defense counsel attempted to admit this report through the testimony of 

Anna Parys, a CYS employee who supervised the case regarding the victim’s 

allegations of sexual abuse. See N.T. Trial, 10/28/15, at 34. The 

Commonwealth objected to the admission of the CYS report arguing, inter 

alia, that it contained hearsay. See id. at 35. In response, defense counsel 

argued that the report was admissible under the ‘business record’ exception 

to the rule precluding hearsay. The court agreed that the business record 

exception applied to admit the statements made in the report by the CYF 

employee who drafted it. See id. at 40. However, the court found that 
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there were “multiple layers of hearsay” in the report, and that defense 

counsel had not demonstrated an exception applied to each of those levels 

of hearsay. Id. at 42-43. 

We ascertain no abuse of discretion in the court’s decision. “‘Hearsay’ 

is defined as “a statement that (1) the declarant does not make while 

testifying at the current trial or hearing; and (2) a party offers in evidence to 

prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c). 

Hearsay is not admissible, unless one of the exceptions set forth in Pa.R.E. 

803 applies. See Pa.R.E. 802. One such exception is the ‘business record’ 

exception, which is set forth in Rule 803(6), as follows:

(6) Records of a Regularly Conducted Activity. A record 

(which includes a memorandum, report, or data compilation in 

any form) of an act, event or condition if:

(A) the record was made at or near the time by--or from 

information transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly 

conducted activity of a “business”, which term includes 

business, institution, association, profession, occupation, 

and calling of every kind, whether or not conducted for 

profit;

(C) making the record was a regular practice of that 

activity;

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness, or by a certification 

that complies with Rule 902(11) or (12) or with a statute 

permitting certification; and

(E) the opponent does not show that the source of 

information or other circumstances indicate a lack of 

trustworthiness.

Pa.R.E. 803(6). 
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Here, the parties do not dispute that the CYF employee’s statements in 

the report were admissible under the business record exception. However, 

the report also contained statements made to the CYF employee by the 

victim, the victim’s mother, and another family member. Appellant contends 

that these statements do not constitute hearsay because they “were not 

being offered to prove the truth of the matter” asserted, i.e., “that [another 

individual] committed the sexual assault[.]” Appellant’s Brief at 23. 

According to Appellant, “the statements were offered to prove that the 

victim was not telling the truth that [] Appellant committed the assault or 

that she was so confused about the sexual assault that she should not be 

credited by the jury.” Id. 

Appellant essentially argues that the report was admissible for 

impeachment purposes. However, at trial, defense counsel repeatedly 

stated that the report was not being offered as impeachment evidence; 

instead, counsel declared that she was seeking to admit the report as 

substantive evidence to prove the truth of the matter asserted therein, 

namely the truth of the statements made to the CYF employee by the victim, 

her mother, and another family member. See N.T. Trial, 10/28/16, at 38-

41. Therefore, Appellant’s argument that the statements contained within 

the CYS report were not being admitted to prove the truth of what they 

asserted was waived by counsel below.

Moreover, we agree with the trial court that the CYS record was 

hearsay itself, and that it contained layers of hearsay statements within it. 
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Specifically, the report discussed statements made by the victim, her 

mother, and another family member. Thus, Appellant was required to 

demonstrate that each of those layers of hearsay was covered by an 

exception to the rule precluding hearsay. See Hreha v. Benscoter, 554 

A.2d 525, 529 (Pa. Super. 1989) (“Where a business record contains 

multiple levels of hearsay ... it is admissible only if each level falls within a 

recognized exception to the hearsay rule.”). In this vein, defense counsel at 

trial only briefly argued that the victim’s statements in the report fell within 

the ‘party opponent’ exception. See Pa.R.E. 803(25); N.T. Trial, 10/28/15, 

at 43. The Commonwealth countered that the victim was not a party in this 

case; rather, Appellant and the Commonwealth were the parties. N.T. Trial, 

10/28/15, at 43. The trial court rejected defense counsel’s attempt to admit 

the victim’s statement under the ‘party opponent’ exception, and Appellant 

makes no argument on appeal that it erred in that regard.

In sum, Appellant’s argument fails to demonstrate that the trial court 

abused its discretion in precluding the admission of the CYS report. The 

report itself, while admissible under the business record exception, 

contained multiple layers of hearsay statements by the victim, her mother, 

and another family member. Defense counsel stated that she was seeking 

to admit those statements to prove the truth of what they asserted, yet 

counsel failed to demonstrate the applicability of any exception to the rule 

precluding the admission of those hearsay statements. Accordingly, 

Appellant’s fifth issue is meritless.
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In Appellant’s next claim, he argues that the trial court abused its 

discretion by precluding certain testimony by his expert witness, Dr. Frank 

M. Dattilio. Dr. Dattilio was admitted, without objection by the 

Commonwealth, “as an expert in the field of clinical and forensic psychology, 

specifically in the area of treatment of abuse victims.” N.T. Trial, 10/28/15, 

at 11. The court clarified, prior to the doctor’s taking the stand, that “his 

testimony will be limited to the general behavioral characteristics of victims 

of sexual assault pursuant to Title 42 [Pa.C.S.] § 5920.” Id. That statute 

states:

§ 5920. Expert testimony in certain criminal proceedings

(a) Scope.--This section applies to all of the following:

(1) A criminal proceeding for an offense for which 

registration is required under Subchapter H of Chapter 97 

(relating to registration of sexual offenders).

(2) A criminal proceeding for an offense under 18 Pa.C.S. 

Ch. 31 (relating to sexual offenses).

(b) Qualifications and use of experts.--

(1) In a criminal proceeding subject to this section, a 

witness may be qualified by the court as an expert if the 

witness has specialized knowledge beyond that possessed 

by the average layperson based on the witness's 

experience with, or specialized training or education in, 

criminal justice, behavioral sciences or victim services 

issues, related to sexual violence, that will assist the trier 

of fact in understanding the dynamics of sexual violence, 

victim responses to sexual violence and the impact of 

sexual violence on victims during and after being 

assaulted.
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(2) If qualified as an expert, the witness may testify to 

facts and opinions regarding specific types of victim 

responses and victim behaviors.

(3) The witness's opinion regarding the credibility of any 

other witness, including the victim, shall not be admissible.

(4) A witness qualified by the court as an expert under this 

section may be called by the attorney for the 

Commonwealth or the defendant to provide the expert 

testimony.

42 Pa.C.S. § 5920 (footnote omitted).

During Dr. Dattilio’s testimony, he was asked - without objection by 

the Commonwealth - if he could provide reasons “why a child would make a 

false allegation[]” of sexual abuse. N.T. Trial, 10/28/15, at 14. The doctor 

opined:

[Dr. Dattilio:] Well, there’s actually four clinical subtypes. The 

first and most common is when there is a custody issue or 

there’s intra[-]familial strife, one way or the other, a dispute 

between adults or family members. We find that 50 percent of 

false allegations come from that domain and is most common.

And the second may be because there was a mental 

illness, could be a delusional disorder, a paranoid disorder, or 

could be some drugs involved; usually with older individuals, 

teenage, 15, 16, 17, that age.

The third is when there may be conscious manipulation for 

reasons of secondary gain, to fabricate them. 

...

And then the last is what we call iatrogenic....

[Defense Counsel:] And what would that be?

[Dr. Dattilio:] Literally, doctor or professional induced. And that 

can be deliberate, but it also can be non-deliberate by virtue of 

the fact that the individuals who investigate may be doing a less 

than adequate job in ferreting out the truth. And there can be a 

lot of reasons for that. 
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You know, law enforcement, they’re inundated with cases. 

... They’re busy, they don’t have a lot of time, they do the best 

that they can, but sometimes it’s harried. They do quicker 

interviews, and sometimes it may be induced by virtue of leading 

questions. And there’s stopgaps that help that. There’s certain 

structured programs that are empirically weighted, they’re 

designed. We train child advocacy programs and investigators 

to use them so that they don’t mislead and they protect the 

alleged victim, as well as the alleged perpetrator, so that it’s 

legally and dutifully bound.

Id. at 14-17. 

Defense counsel then asked the following question of Dr. Dattilio:

[Defense Counsel:] Now, are there generally accepted or is there 

a method that’s preferable when interviewing children that are 

making these allegations so as to prevent any leading, tainted or 

the iatrogenic results that you’re talking about?

Id. at 17. The Commonwealth objected to this question, and a sidebar was 

held, at which the Commonwealth argued as follows:

[The Commonwealth:] Judge, the basis for the objection is if 

there’s a false report, that’s actually a crime. The person’s not a 

victim. 

This specifically covers victim[s] of sexual abuse and 

sexual violence. This is delving into false reports and false 

allegations. I don’t think it’s covered by the statute. ... 

[B]ecause if someone makes a false report of rape, they end up 

getting charged and they’re a criminal, not a defendant.

[Defense Counsel:] We’re not putting [the victim] in the seat of 

defendant.

[The Court:] But it sounds like what you’re getting into is the 

area -- is law enforcement and investigative tactics, as opposed 

to behavioral characteristics of a sexual assault victim. So I’m 

going to sustain the objection.

Id. at 17-18.
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Now, on appeal, Appellant argues that the court erred by sustaining 

the Commonwealth’s objection to defense counsel’s question, which he 

submits was a proper attempt to elicit Dr. Dattilio’s expert testimony about 

“a victim’s response based upon varying methods used to question that 

victim either by law enforcement or counselors.” Appellant’s Brief at 25. 

Characterizing the issue before us as one of statutory interpretation, 

Appellant contends that section 5920 must be read as permitting the type of 

testimony he sought to elicit from Dr. Dattilio. He reasons that “[a]n expert 

cannot opine on what a victim’s response would be if the expert cannot also 

discuss what the victim is responding to, i.e. the various methods of 

questioning by police and counselors.” Id. at 26. Appellant further argues 

that “[t]he statute specifically provides that responses ‘after being assaulted’ 

are a subject of the testimony, which would naturally include the questions 

to which the victim is responding. That the expert had concluded that 

certain methods of questioning by police or counselors produce false 

information from victims is also a ‘type’ of response that [] Appellant had a 

statutory right to elicit from his expert.” Id. 

Preliminarily, we disagree with Appellant that, based on the record 

before us, we can assess the entire scope of section 5920. The record 

makes clear that the trial court placed a limit on Dr. Dattilio’s testimony by 

explicitly ruling that he could only opine about “the general behavioral 

characteristics of victims of sexual assault pursuant to 42 [Pa.C.S.] § 5920.” 

N.T. Trial, 10/28/15, at 11. Appellant at no point objected to the court’s 
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constraint. We also point out that when the Commonwealth lodged its 

objection to the at-issue question, Appellant did not present any of the 

arguments he now raises on appeal, regarding the scope of section 5920; 

instead, defense counsel simply stated, “We’re not putting [the victim] in the 

seat of defendant.” Id. at 18. When the court ultimately sustained the 

Commonwealth’s objection, it did so on the basis that the testimony sought 

to be elicited did not pertain to “behavioral characteristics of a sexual assault 

victim[,]” referring to the limit it had set on the scope of the doctor’s 

testimony. Id. at 18. Consequently, because Appellant never argued before 

the trial court that section 5920 allows the testimony he sought to elicit from 

Dr. Dattilio, and he did not lodge any objection to the limit the court placed 

on the doctor’s testimony, we cannot assess whether the statute, as a 

whole, permits the sort of testimony Appellant attempted to elicit in this 

case. Instead, we must limit our review to whether the trial court abused its 

discretion in concluding that the desired testimony would violate its ruling 

that the doctor’s testimony must be limited to ‘general behavioral 

characteristics of victims of sexual assault.’ 

In conducting this assessment, we find it pertinent that in the question 

to which the Commonwealth objected, defense counsel asked Dr. Dattilio to 

opine on the preferred method for interviewing a child who was only then 

alleging sexual abuse, but who had not yet been determined to be a victim

of such abuse. Given the precise language of the at-issue question, we are 

not convinced that the doctor’s answer to that question would have been 
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within the scope of the trial court’s limitation on his expert testimony. In 

other words, we ascertain no abuse of discretion in the trial court’s 

conclusion that the testimony sought to be elicited from Dr. Dattilio -

regarding how to interview a child who may, or may not, have been sexually 

abused - did not constitute testimony about ‘general behavioral 

characteristics of a sexual assault victim.’ Accordingly, Appellant’s sixth 

issue is meritless.

In Appellant’s seventh and final issue, he contends that his sentences 

for indecent assault are illegal because those offenses should have merged, 

for sentencing purposes, with his convictions for EWOC. Preliminarily, our 

Supreme Court has stated: 

Whether Appellant's convictions merge for sentencing is a 

question implicating the legality of Appellant's sentence. 

Consequently, our standard of review is de novo and the scope 

of our review is plenary. 

***

Section 9765 provides:

§ 9765. Merger of sentences

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 statute's mandate is clear. It 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.
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Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

Here, Appellant claims that indecent assault is a lesser-included 

offense of EWOC. The indecent assault crime for which Appellant was 

specifically convicted is defined as follows:

(a) Offense defined.--A person is guilty of indecent assault if 

the person has indecent contact with the complainant, causes 

the complainant to have indecent contact with the person or 

intentionally causes the complainant to come into contact with 

seminal fluid, urine or feces for the purpose of arousing sexual 

desire in the person or the complainant and:

***

(7) the complainant is less than 13 years of age...[.]

18 Pa.C.S. § 3126(a)(7). The offense of EWOC is defined in the Crimes 

Code as follows:

(a) Offense defined.--

(1) A parent, guardian or other person supervising the 

welfare of a child under 18 years of age, or a person that 

employs or supervises such a person, commits an offense 

if he knowingly endangers the welfare of the child by 

violating a duty of care, protection or support.

18 Pa.C.S. § 4304(a)(1). 

Appellant concedes that each of these offenses requires a different 

intent element. See Appellant’s Brief at 29 (“The mens rea for each crime 

differ[s].”). More specifically, he acknowledges that “[i]ndecent [a]ssault 

requires an intent to arouse sexual desires, while [EWOC] requires [a]

knowing violation of a duty of care.” Id. at 29 (citing 18 Pa.C.S. § 3126 

(defining indecent assault and requiring the offense be committed “for the 

purpose of arousing sexual desire in the person or the complainant”) and 
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Commonwealth v. Cottam, 616 A.2d 988, 1005 (Pa. Super. 1992) (stating 

that the mens rea for the crime of EWOC “is a knowing violation of a duty of 

care”)). Appellant argues, however, that “our Supreme Court’s decision in 

[Commonwealth v.] Jones[, 912 A.2d 815 (Pa. 2006),] strongly supports 

merger despite this difference in the mens rea.” Appellant’s Brief at 29. 

According to Appellant, Jones establishes that in conducting a merger 

analysis, the court must not only consider the statutory definitions of the 

offenses, but it must also assess “the actual allegations involved.” Id. 

Appellant’s reliance on Jones is unconvincing. Initially, he fails to 

recognize that Jones is a plurality opinion, with “a ‘lead opinion’ approach to 

merger and a ‘dissenting opinion’ approach to merger.” Commonwealth v. 

Williams, 920 A.2d 887, 889 (Pa. Super. 2007). As our Supreme Court has 

clarified, plurality decisions have “no precedential weight....” Baldwin, 985 

A.2d at 835. In any event, we recognize that, consistent with Appellant’s 

argument, the lead opinion in Jones did adopt a “practical, hybrid approach” 

that requires an evaluation of “the statutory elements [of each crime], with 

an eye to the specific allegations leveled in the case.” Jones, 912 A.2d at 

822. However, that approach has since been rejected by our Supreme Court 

in Baldwin, where the Court held that “[a] plain language interpretation of 

Section 9765 reveals the General Assembly’s intent to preclude the courts of 

this Commonwealth from merging sentences for two different offenses that 

are based on a single criminal act unless all of the statutory elements of one 

of the offenses are included in the statutory elements of the other.” 
J-S10007-17

- 20 -

Baldwin, 985 A.2d at 837 (footnote omitted). Because in this case, 

Appellant acknowledges that the statutory definition of indecent assault has 

at least one element that is not included in the definition of EWOC - i.e., an 

intent to arouse sexual desire - his reliance on Jones does not demonstrate 

that those two crimes should have merged for sentencing purposes.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/20/2017