J-A16029-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRUCE JOSEPH PANATTIERI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 257 MDA 2022

Appeal from the Judgment of Sentence Entered January 14, 2022

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0002694-2019

COMMONWEALTH OF PENNSYLVANIA

v.

BRUCE JOSEPH PANATTIERI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 258 MDA 2022

Appeal from the Judgment of Sentence Entered January 14, 2022

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0000198-2020

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 23, 2023

Appellant, Bruce Joseph Panattieri, was convicted of several sexual 

crimes against two young girls and received an aggregate sentence of one to 

two years of incarceration, followed by four years’ probation. He challenges 

the trial court’s denial of his motion for a bill of particulars and the grading of 

his two corruption of minors charges. We affirm. 
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On September 9, 2019, the Commonwealth filed a criminal information 

docketed at 2694-2019, charging four counts relating to sexual incidents 

against S.G., the sister of Appellant’s fiancée: indecent assault without 

consent, 18 Pa.C.S. § 3126(a)(1) (count one); indecent assault of a person 

under thirteen, 18 Pa.C.S. § 3126(a)(7) (count two); indecent assault of 

person less than sixteen, 18 Pa.C.S. § 3126(a)(8) (count three); and 

corruption of minors, 18 Pa.C.S. § 6301(a)(1)(ii) (count four). The 

information listed each incident date as occurring “on or about” September 1, 

2016. S.G. was fourteen years old at the time of trial in September of 2021.

The second information, docketed at 198-2020, was filed February 7, 

2020, charging three counts relating to sexual incidents concerning A.L.G., 

who was also his fiancée’s sister: aggravated indecent assault without 

consent, 18 Pa.C.S. § 3125(a)(1) (count one); corruption of minors, 18 

Pa.C.S. § 6301(a)(1)(ii) (count two); and indecent assault, 18 Pa.C.S. § 

3126(a)(1) (count three). The incident date was also listed as “on or about”

September 1, 2016. A.L.G. was twenty years old at the time of trial. 

Appellant filed a pre-trial motion pursuant to Rule of Criminal Procedure 

572 at each docket requesting a bill of particulars to “adequately prepare for 

trial, avoid surprise at trial, ascertain an alibi, and/or protect himself against 

a violation of his rights against double jeopardy[.]” Request for Bill of 

Particulars, 9/14/20, at 1. Appellant requested, with respect to each count, a 

court order requiring the Commonwealth to provide the following: 
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a. the exact date which any act or conduct giving rise to the

alleged crime occurred;

b. the exact place which any act or conduct giving rise to the

alleged crime occurred;

c. the exact time which any act or conduct giving rise to the 

alleged crime occurred;

d. the specific act or conduct giving rise to the alleged crime.

See id. at 1-2.

On September 8, 2021, the trial court held a hearing on a variety of 

motions, including the Commonwealth’s motion to amend the criminal 

informations. As the Commonwealth explained, “there was an inadvertent 

issue with the time frames listed on both of the informations. It just listed 

the start date and not the entirety of the time frame.” N.T. Pre-trial Hearing, 

9/8/21, at 2. As amended, the docket at 2694-2019 charged offenses 

occurring from September 1, 2016, through June 9, 2019. The docket at 198-

2020 was amended to state that the crimes occurred between March 1, 2017, 

and March 31, 2019. 

Appellant did not object to the amendments. The parties then discussed 

the motion for a bill of particulars. The Commonwealth asserted that, “a lot 

has happened” since the charges were filed, including testimony by the victims 

at a habeas corpus proceeding and the fact “that discovery has been 

provided.” Id. at 4. The Commonwealth argued that the request was “moot 

at this point because [Appellant] know[s] exactly what conduct he’s charged 

for.” Id. 
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While Appellant’s first item requested in the bill for particulars was for 

an exact date on which the acts occurred, Appellant conceded that the 

amendments addressed that issue. “If the Commonwealth is going to put on 

their amended information a range of dates, that’s sufficient for me, Your 

Honor.” Id. at 6. Appellant then stated that “the others are more important” 

and argued that the Commonwealth attempted to “circumvent the rule just by

saying, well, you have it in discovery.” Id. Appellant argued that the 

mechanism for a request for a bill of particulars would be superfluous if 

discovery obligations satisfied any such request, and maintained that he 

“need[ed] to know the three other things[,] ... place, manner, act.” Id. The 

court denied the motion.

Appellant proceeded to a jury trial. Immediately before S.G. testified,

Appellant moved for an offer of proof. Appellant noted that the 

Commonwealth had originally filed a count of involuntary deviate sexual 

intercourse (IDSI) predicated on alleged vaginal licking, which had been 

dismissed at the preliminary hearing, and sought to bar the admission of any 

testimony pertaining to that allegation. The Commonwealth replied that S.G. 

did not testify at the preliminary hearing1 and “the judge did not feel [the 

testimony] was sufficient to bind that charge over because he didn’t feel that 

it met all the elements of an IDSI.” N.T., 9/29/21, at 37. The Commonwealth 

argued that S.G. could still testify about those behaviors because it would 

____________________________________________

1 The Commonwealth had called an officer who witnessed the forensic 

interview.
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satisfy indecent assault. The Commonwealth noted that there were no 

“specific acts alleged in the information. It’s a general count.” Id. at 38. The 

trial court overruled Appellant’s request. 

Appellant was convicted of all counts at both dockets except aggravated 

indecent assault. Appellant moved for extraordinary relief concerning the two 

counts of corruption of minors, which the trial court denied. Appellant filed 

timely notices of appeal2 and complied with the trial court’s order to file a 

concise statement. See Pa.R.A.P. 1925(b). We now review Appellant’s two 

claims:

I. Whether the trial court’s refusal to order the Commonwealth to 

file a bill of particulars, which then resulted in admission of 

evidence of dismissed conduct and uncharged “bad acts[,”]

constitutes an abuse of discretion requiring reversal.

II. Whether increasing the sentence for “corruption of minors / 

course of conduct” when there was no jury finding of specific acts 

constituting such “course” constitutes illegal sentence.

Appellant’s Brief at 5.

Appellant’s first claim challenges the trial court’s failure to grant his 

motion for a bill of particulars. He reiterates the position advanced at the pretrial hearing, namely, that providing discovery is not a substitute for granting

a request for a bill of particulars. Appellant describes the charges listed in the 

criminal informations as containing “broad language mirroring the statutory 

text of the charges alleged. Specific dates are absent[,] as are any 

reference[s] to specific conduct on the part of [Appellant].” Id. at 13 (citation 

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2 We sua sponte consolidated the appeals by order of February 25, 2022. 
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to record omitted). Appellant argues that the trial court erred by treating the 

“concept of the bill of particulars as a discovery tool.” Id. at 16. 

Appellant further contends that the failure to grant the motion led to the 

admission of the testimony regarding “alleged vaginal contact by [Appellant,] 

... which had been part of the Commonwealth’s original complaint, but this 

charge did not survive the preliminary hearing....” Id. Additionally, A.L.G. 

testified “regarding [Appellant]’s alleged video recording” of her, but the 

criminal informations do not specify that behavior. Id. As to the effect of the 

trial court’s purported error, Appellant maintains that the ruling “requires 

reversal given the contours of the present matters.” Id. at 18. 

The Commonwealth maintains that the trial court properly denied the 

motion as it supplied all relevant discovery, and Appellant was aware of the 

charges and the evidence the Commonwealth intended to use to support 

them. Thus, the Commonwealth says that “Appellant was not surprised in any 

way by the Commonwealth’s evidence; therefore, the trial court did not err 

when it denied his motion to compel....” Commonwealth’s Brief at 10. 

Rule of Criminal Procedure 572 establishes the mechanism for seeking 

a bill of particulars:

(A) A request for a bill of particulars shall be served in writing by 

the defendant upon the attorney for the Commonwealth within 7 

days following arraignment. The request shall promptly be filed 

and served as provided in Rule 576.

(B) The request shall set forth the specific particulars sought by 

the defendant, and the reasons why the particulars are requested.
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(C) Upon failure or refusal of the attorney for the Commonwealth 

to furnish a bill of particulars after service of a request, the 

defendant may make written motion for relief to the court within 

7 days after such failure or refusal. If further particulars are 

desired after an original bill of particulars has been furnished, a 

motion therefor may be made to the court within 5 days after the 

original bill is furnished.

(D) When a motion for relief is made, the court may make such 

order as it deems necessary in the interests of justice.

Pa.R.Crim.P. 572. We review a ruling on a motion for a bill of particulars for 

an abuse of discretion. Commonwealth v. Libengood, 152 A.3d 1057, 1059 

(Pa. Super. 2016).

We begin our analysis by noting that Appellant concedes that the 

general purpose of a bill of particulars is “to seek more specific allegations so 

as to protect his or her due process rights and ensure a fair trial.” Appellant’s 

Brief at 13. Thus, Appellant agrees that the bill of particulars serves the 

specific function of assisting a defendant in preparing for trial. However, 

Appellant maintains that while a bill of particulars does act as a notice 

provision, he posits that “[r]esting on this limited understanding of the bill 

would tend to suggest that it serves only a ‘notice’ or ‘discovery’ function.” 

Id. at 16. Appellant argues that this “is not the true nor complete nature of 

the bill of particulars. From its historic roots, it has long been understood that 

the bill functions as ‘a pleading [which] limit[s] the proofs [the Commonwealth 

may present] at the trial....’” Id. (citation omitted; bracketing in original).

To the extent the trial court’s analysis could be read to establish a per 

se rule that supplying discovery precludes a motion seeking a bill of 

particulars, we agree that this would misconstrue the purpose of Rule 572. 
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Yet, we do not view the trial court’s analysis as going so far, as we find that 

the trial court determined that Appellant failed to meet his burden to establish 

“reasons why the particulars are requested.” Pa.R.Crim.P. 572(B). Appellant, 

both before the trial court and before this Court, has failed to offer a reason 

for compelling the production of a bill of particulars. Logically, the “why these 

particulars are being requested” component of the rule must relate back to 

the purpose served by the mechanism for requesting a bill of particulars. “A 

bill of particulars is intended to give notice to the accused of the offenses 

charged in the indictment so that the accused may prepare a defense, avoid 

a surprise, or intelligently raise pleas of double jeopardy and the statute of 

limitations.” Commonwealth v. Mercado, 649 A.2d 946, 959 (Pa. Super. 

1994). Appellant did not explain how the bill of particulars would assist in 

preparing a defense, avoiding a surprise, or assessing double jeopardy 

concerns. 

Appellant’s motion was boilerplate, and his argument at the hearing did 

not meaningfully expand on his request. Indeed, it appears the real purpose 

of the bill of particulars was not to assist in the preparation of his defense or 

prevent a surprise at trial but rather an attempt to “lock” the Commonwealth 

into a specific set of allegations. Appellant maintains that, “it has long been 

the law in Pennsylvania that the Commonwealth is restricted to proving 

what it has set forth in the bill.” Appellant’s Brief at 17 (quoting 

Commonwealth v. Simione, 291 A.2d 764, 766 (Pa. 1972)) (emphasis 

supplied by Appellant). As a general proposition, a variance between a 
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criminal information and the proof at trial is not fatal. Commonwealth v. 

Einhorn, 911 A.2d 960, 978 (Pa. Super. 2006) (“A variance is not fatal unless 

it could mislead the defendant at trial, impairs a substantial right or involves 

an element of surprise that would prejudice the defendant’s efforts to prepare 

his defense.”). However, as quoted in Simione, a variance between the bill 

of particulars and the proof at trial may be treated differently. As stated in 

the Corpus Juris Secundum:

A variance in the pleading and the proof with regard to the time 

of the commission of a crime does not constitute prejudicial error 

where time is not of the essence of the crime charged. In the 

absence of the specificity that may be obtained through a request 

for a bill of particulars, a time variance between the allegation in 

the indictment and the proof at trial is not fatal to a criminal 

conviction.

42 C.J.S. Indictments § 290. The benefit to Appellant of restricting the 

Commonwealth via a bill of particulars is obvious, but we do not agree that 

the trial court is required to grant such a motion. 

We could arguably affirm on this basis alone. However, we will address 

Appellant’s implicit claim that the two criminal informations were facially 

insufficient to apprise him of the offenses, thereby justifying a bill of 

particulars. This is a fact-specific question that must be analyzed by reference

to the specific case. 

A bill of particulars is an amplification or more particular 

specification of the matter set forth in the pleading. While it need 

not state more than the party furnishing it is bound to prove under 

the pleading, it must be as specific as the circumstances of 

the case will allow, and should fairly apprise the opposite party 
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and the court of the nature of the claim or defense made and the 

nature of the evidence....

Weedon v. Weedon, 34 Pa. Super. 358, 362 (Pa. Super. 1907) (emphasis 

added).

We briefly discuss precedents indirectly addressing the “specific as the 

circumstances of the case will allow” concept referenced in Weedon with

respect to sexual assault cases. In Commonwealth v. Devlin, 333 A.2d 888

(Pa. 1975), William Devlin was accused of sodomizing a twenty-two-year-old 

victim “who had the mental ability of a first or second grade child and the 

emotional stability of an even younger child.” Id. at 889. Devlin worked for 

a social agency and one of his roles was to supervise the victim’s earnings and 

distribute them to the victim. This required the victim to visit Devlin’s home 

twice a day for funds for lunch and dinner. One evening, the victim 

approached two police officers and stated “that acts of sodomy had been 

perpetrated upon him” by Devlin. Id. This assault occurred on only one visit 

to Devlin’s home. The victim, however, “could not give any indication as to 

the time of year, the month, day, or date when the crime occurred.” Id. Our 

Supreme Court discharged the conviction on the grounds that the failure to 

prove the date with sufficient particularity denied Devlin his due process right 

to an adequate opportunity to defend. See id. at 891. 

Notably, Devlin stated that it could not “enunciate the exact degree of 

specificity in the proof of the date of a crime which will be required or the 

amount of latitude which will be acceptable. Certainly[,] the Commonwealth 

need not always prove a single specific date of the crime.” Id. at 892. This 
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observation was significant to our decision in Commonwealth v. Jette, 818 

A.2d 533 (Pa. Super. 2003), where the Commonwealth’s evidence showed 

that “Jette repeatedly raped and sexually assaulted the minor victim, who was 

the son of his live-in girlfriend, during 1993 and 1994, starting when the victim 

was eight years old.” Id. at 534 (footnote omitted). The acts “included anal 

penetration and oral sex including ejaculating in [the victim’s] mouth....”. Id.

(bracketing in original). The victim “told a police detective that Jette had 

abused him almost daily during the two-year period,” and at trial, “described 

four of the worst incidents, describing generally when they occurred by month 

and generally what time of the year.” Id. at 535 (quoting trial court opinion).

Jette was convicted of three counts: one count each of involuntary

deviate sexual intercourse, endangering the welfare of a child, and corrupting 

the morals of a child. We held that the evidence was sufficient to convict, i.e.,

that the proof was sufficiently particular. We distinguished Devlin as follows:

In considering a similar claim in Commonwealth v. Groff, ... 548 

A.2d 1237 ([Pa. Super.] 1988), this Court noted that pursuant to 

... Devlin, ... “the prosecution must fix the date when an alleged 

offenses occurred with reasonable certainty,” [id.] at 1240, but 

cautioned as well that “the Commonwealth must be allowed a 

reasonable measure of flexibility when faced with the special 

difficulties involved in ascertaining the date of an assault upon a 

young child.” Id. ... at 1241. 

Jette, 818 A.2d at 535.

Neither Devlin nor Jette and the cases discussed therein are directly 

on point, but they shed light on the central question here: to what degree is 

the Commonwealth required to establish in the criminal information the
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specific details when dealing with sexual crimes occurring over a long period 

of time? “The criminal information ‘sets the stage for trial and what the 

Commonwealth intends to prove.’” Commonwealth v. Martin, 297 A.3d 

424, 432 (Pa. Super. 2023) (quoting Commonwealth v. King, 234 A.3d 549, 

563 (Pa. 2020)). The United States Supreme Court has summarized the 

components of a valid charging instrument as follows:

Our prior cases indicate that an indictment is sufficient if it, first, 

contains the elements of the offense charged and fairly informs a 

defendant of the charge against which he must defend, and, 

second, enables him to plead an acquittal or conviction in bar of 

future prosecutions for the same offense. It is generally sufficient 

that an indictment set forth the offense in the words of the statute 

itself, as long as those words of themselves fully, directly, and 

expressly, without any uncertainty or ambiguity, set forth all the 

elements necessary to constitute the offence intended to be 

punished. Undoubtedly the language of the statute may be used 

in the general description of an offence, but it must be 

accompanied with such a statement of the facts and 

circumstances as will inform the accused of the specific offence, 

coming under the general description, with which he is charged. 

Hamling v. United States, 418 U.S. 87, 117–18 (1974) (cleaned up).

Note the familiarity of the language describing the sufficiency of the 

indictment: it must “fairly inform[] a defendant of the charge against which 

he must defend, and, second, enable[] him to plead an acquittal or conviction 

in bar of future prosecutions for the same offense.” Id. at 117. This language 

is virtually identical to how courts describe the function of a bill of particulars. 

Mercado, 649 A.2d at 959. Therefore, a bill of particulars is simply a request 

for a more specific pleading, which by Rule places the burden on the 

defendant. However, unlike a properly drawn indictment/information, a bill of 
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particulars is not something to which a defendant is entitled. It is for this 

reason that a bill of particulars cannot save a defective information, nor can a 

defective bill of particulars defeat a valid information. 

A motion for a bill of particulars does not question the sufficiency 

of an indictment but rather assumes its validity. When filed, such 

bill of particulars does not become a part of the indictment. It 

therefore cannot remedy by way of amendment a fatal defect in 

an indictment which charges no offense under the law, and, 

similarly, an indictment good on its face is not rendered 

demurrable or subject to a motion to quash by a defective or 

inadequate bill of particulars. 

Commonwealth v. Hershman, 90 A.2d 314, 317 (Pa. Super. 1952) (citation 

omitted), aff’d, 97 A.2d 777 (Pa. 1953).

Appellant maintains that the criminal information is too generic in the 

sense it merely tracks the statutory language. While that is an accurate 

characterization, Appellant fails to show why, under the circumstances of the 

charges and discovery known to him, more was needed. The allegations 

spanned events occurring over two plus years. Criminal acts occurring over a 

long period of time, especially those involving young victims, are not 

amenable to the type of precise accounting demanded by Appellant. The 

victims, unsurprisingly, could not recall exactly when the abuse occurred and 

could not offer exact details for any given incident. This point is significant 

when one considers that Appellant agreed at the pre-trial hearing that a 

specific timeframe was not needed. However, Appellant now faults the trial 

court for failing to force the Commonwealth to describe specific conduct and 

acts in the indictment. We do not see how the two can be neatly separated. 
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Appellant’s concession that the Commonwealth was not required to pin down 

an exact date on which a specific incident of abuse occurred is difficult, if not 

impossible, to reconcile with his present claim that the Commonwealth was 

required to specify exactly how each incident of abuse occurred. It follows 

that if the victims cannot be expected to remember the precise dates, they 

cannot be expected to recall precise details. Hence, the recitation of the 

statutory language in conjunction with the discovery material, which placed 

Appellant on notice of what the Commonwealth intended to offer as proof of 

the crimes, fully justified the trial court’s decision.

Finally, we briefly address a point of contention between the parties 

regarding a comment in our Supreme Court’s decision in Commonwealth v. 

Champney, 832 A.2d 403, 412 (Pa. 2003), that the bill of particulars is “an 

anachronism of past procedural rules[.]” Compare Commonwealth’s Brief at 

8 (approvingly quoting Champney), with Appellant’s Reply Brief at 1-2 

(noting that the observation is dictum). To reiterate, we agree with Appellant 

that a bill of particulars serves a purpose. Notwithstanding, modern practice, 

including the Commonwealth’s mandatory discovery obligations, play a role in 

determining whether a bill of particulars is warranted. The Corpus Juris 

Secundum summarizes the circumstances relevant to determining whether a 

bill of particulars should be compelled: 

A bill of particulars is required only when the charges of the 

indictment are so general that they do not advise the defendant 

of the specific acts of which he or she is accused. The 

government, in a criminal prosecution, may not be compelled to 

provide a bill of particulars disclosing the manner in which it will 
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attempt to prove the charges, the precise manner in which the 

defendant committed the crimes charged, or a preview of the 

government’s evidence or legal theories.

Among the factors considered in determining whether particulars 

are warranted are the complexity of the offense, the clarity of the 

indictment, and the discovery otherwise available to the 

defendant. An accentuated need exists for the State to furnish 

particulars where a crime charged may be committed in a number 

of different ways and when a crime involves not a single 

occurrence but a series of occurrences.

42 C.J.S. Indictments § 193 (footnotes omitted). 

Given the discovery available to Appellant, the recognized flexibility 

afforded to the Commonwealth in establishing proof of sexual crimes occurring 

over a long period of time and which did not involve a single occurrence, and 

the fact that Appellant offers no complaint that the evidence at trial surprised 

him,

3 we agree that the trial court did not abuse its discretion in denying the 

motion. 

Appellant’s second issue challenges his felony convictions for corruption 

of minors at both criminal informations. That statute codifies two separate 

offenses, with the felony version requiring proof of a “course of conduct”:

(a) Offense defined.--

____________________________________________

3 We are unpersuaded that the evidence introduced at trial concerning the 

alleged vaginal licking, which was dismissed at the preliminary hearing stage,

as well as the references to Appellant’s videotaping A.L.G., are pertinent to 

this claim. Appellant anticipatorily asked the trial judge to exclude evidence 

of the alleged vaginal licking, and his brief does not challenge the trial court’s 

ruling on that matter. Appellant cannot litigate a backdoor challenge to the 

admissibility of that evidence by incorporating it into this claim. Likewise, 

Appellant anticipatorily raised the videotaping issue prior to A.L.G.’s 

testimony.
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(1)(i) Except as provided in subparagraph (ii), whoever, being of 

the age of 18 years and upwards, by any act corrupts or tends to 

corrupt the morals of any minor less than 18 years of age, or who 

aids, abets, entices or encourages any such minor in the 

commission of any crime, or who knowingly assists or encourages 

such minor in violating his or her parole or any order of court, 

commits a misdemeanor of the first degree.

(ii) Whoever, being of the age of 18 years and upwards, by any 

course of conduct in violation of Chapter 31 (relating to sexual 

offenses) corrupts or tends to corrupt the morals of any minor less 

than 18 years of age, or who aids, abets, entices or encourages 

any such minor in the commission of an offense under Chapter 31 

commits a felony of the third degree.

18 Pa.C.S. § 6301. 

Appellant challenges whether the offense was properly graded as a 

felony of the third degree, asserting that this grading is triggered by the 

finding that the actor engaged in a “course of conduct in violation of Chapter 

31” and therefore implicates the Sixth Amendment right to a jury. See 

generally Apprendi v. New Jersey, 530 U.S. 466 (2000); Commonwealth 

v. Dixon, 255 A.3d 1258, 1264 (Pa. 2021) (“In the terminology used by the 

Apprendi line of cases, ... a fact other than a prior conviction which increases 

the punishment beyond the otherwise-imposable statutory maximum 

comprises an element of a distinct, higher-graded offense.”). Appellant did 

not object to the jury instructions and therefore raises this claim as an illegal 

sentencing claim. Accepting arguendo that this claim implicates the legality 

of Appellant’s sentence as opposed to the sufficiency of the evidence to 

convict, we find no illegality in the sentence. 

In Commonwealth v. Baker-Myers, 255 A.3d 223 (Pa. 2021), our 

Supreme Court discharged a conviction under Section 6301(a)(1)(ii) where 
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the jury acquitted Baker-Myers of all Chapter 31 sexual offenses charged in 

the indictment. The normal rule is that acquittals do not have dispositive 

effect, as an acquittal may be due to an act of mercy. Commonwealth v. 

Moore, 103 A.3d 1240, 1246 (Pa. 2014) (noting that “jury acquittals may not 

be interpreted as specific factual findings with regard to the evidence, as an 

acquittal does not definitively establish that the jury was not convinced of a 

defendant’s guilt”). However, there is an exception to this principle, as 

discussed in Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005). When 

the fact-finder acquits of an offense where the commission of that offense is 

an element of a separate crime, then the acquittal must be given special 

effect. In Magliocco, the trial court convicted him of ethnic intimidation, 18 

Pa.C.S. § 2710, while acquitting him of terroristic threats, 18 Pa.C.S. § 2706. 

The ethnic intimidation statute contained, as an element of the crime, proof 

that a “person ... with malicious intention ... commits an offense under any 

other provision of this article....” 18 Pa.C.S. § 2710. As the only potential 

offense at issue was the terroristic threat charge, the acquittal on that offense 

precluded a conviction on the ethnic intimidation charge.

The same general logic was applied in Baker-Myers. There, the 

Commonwealth charged Baker-Myers with rape, sexual assault, aggravated 

indecent assault, indecent assault, and felony corruption of minors. The judge 

instructed the jury as follows on the corruption of minors charge:

Whoever being of the age of 18 and upwards by any course of

conduct in violation of Chapter 31, relating to the other

sexual offenses being rape, sexual assault, indecent
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assault, corrupts or tends to corrupt the morals of any minor of 

less than 18 years of age or aids, abets, entices or encourages 

any such minor in the commission of an offense under Chapter 

31, again the sexual offenses[,] commits a felony of the third 

degree.

Baker-Myers, 255 A.3d at 226 (quoting trial transcript; emphasis in original). 

The jury found Baker-Myers guilty of the felony corruption of minors 

charge but acquitted him of all the Chapter 31 sex offenses. The Court stated 

that the key word in Section 6301(a)(1)(ii) was “violation”: 

[T]he phrase “in violation of” is not all that different from the 

phrase “commits an offense” as interpreted in Magliocco; both 

are aimed at some act that amounts to illegal conduct under the 

law. Thus, the most natural understanding of the phrase “in 

violation of Chapter 31,” as used in subsection (a)(1)(ii) of the 

corruption of minors statute, is that it operates to create — as an 

element of the offense — a requirement that the Commonwealth 

prove beyond a reasonable doubt that the accused engaged in a 

course of conduct involving a breach of some law or laws

contained in Chapter 31 of the Crimes Code.

Id. at 234. 

Appellant argues that the same result should pertain here. He submits 

that there was no ability for the jury to make a specific factual finding to 

support the purportedly enhanced grading.4 Two key, and related, distinctions 

____________________________________________

4 Appellant does not cite any published decision establishing that, when the 

Commonwealth charges the felony corruption of minors, that claim is 

reviewable under legality of sentence principles. Appellant relies in part on 

the concurring memorandum authored by the Honorable Judith F. Olson in 

Commonwealth v. McAllister, 23 WDA 2021 (Pa. Super. filed Jan. 11,

2022). See Appellant’s Brief at 25. Aside from the fact that the decision is 

not precedential and therefore does not control, Judge Olson’s memorandum 

does not support his position.

(Footnote Continued Next Page)
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exist between Baker-Myers and this case. Here, beginning with the charges 

concerning A.L.G., the jury did not acquit Appellant of all the underlying 

Chapter 31 offenses. Instead, it acquitted Appellant of the aggravated 

indecent assault charge while convicting him of the indecent assault charge. 

On its face, this is not necessarily dispositive because the jury convicted him 

of only one Chapter 31 offense. Accordingly, it could be said that there was 

no “course of conduct” on the theory that this means there is only one singular 

____________________________________________

McAllister, like this case, involved a felony corruption of minor charge. 

The key distinction is that the jury in McAllister was not given any instruction 

concerning “course of conduct.” Id. at *1 (Olson, J., concurring) (stating that 

“the trial court failed to instruct the jury as to course of conduct”). Judge 

Olson pointed out that McAllister, unlike Appellant, did in fact properly 

preserve a sufficiency of the evidence claim flowing from that failure. 

“Following his conviction and sentence, [McAllister] filed a timely postsentence motion which included a claim that his conviction for corruption of 

minors was insufficient as a matter of law.” Id. at *2 (Olson, J., concurring). 

Judge Olson noted that, in his brief, McAllister then raised that issue as 

implicating the legality of his sentence. Judge Olson disagreed with that 

framing, opining:

In my view, this is not a legality of sentence issue and should 

not be analyzed as such. Instead, the issue (which was preserved) 

is whether the fact of a “course of conduct” was presented to the 

jury properly such that the jury could make that factual finding 

beyond a reasonable doubt. If not, [McAllister’s] conviction for 

corruption of minors as a third-degree felony cannot stand.

Id. at *4 (footnote omitted; emphasis added). 

Judge Olson asserted that McAllister preserved a valid Apprendi claim, 

but not in the legality of sentence sense. Instead, he preserved a claim that 

the conviction could not stand “when all elements of the crime were not 

submitted properly to the jury....” Id. at *6. Appellant’s argument here 

actually appears to go to sufficiency as the jury was instructed on the “course 

of conduct” element. 
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act to support the corruption of minors. But the second distinction settles any 

doubt on that point. The Baker-Myers Court noted that the jury instructions 

were limited to the offenses charged:

[C]ontrary to the Commonwealth’s suggestion — based on a 

selective quotation from the transcript — that the trial court did 

not instruct the jury it was required to find [Baker-Myers] actually 

committed one or more of the charged sexual offenses, a review 

of the court’s full instruction proves otherwise. Notably, the trial 

court instructed the jury that it was required to find “any course 

of conduct in violation of Chapter 31, relating to the other sexual

offenses being rape, sexual assault, indecent assault[.]” In 

light of this clear instruction regarding the applicable predicate 

offenses, which was given in part at the prosecutor’s request, we 

are unpersuaded by the Commonwealth’s attempt to salvage 

[Baker-Myers]’s felony corruption of minors conviction.

Id. at 235 (citations omitted; emphasis in original).

In contrast, the trial judge here instructed the jury as follows with 

respect to that element of the offense: 

The second charge or second count as it pertains to [A.L.G.] is 

corruption of a minor. ... To find the defendant guilty of this 

offense, you must find that each of the following three elements 

has been proven beyond a reasonable doubt.

***

And third, that the defendant engaged in the course of conduct 

that constituted the following sexual offenses under the crimes 

code of Pennsylvania. And here it’s alleged to be indecent assault 

and/or aggravated indecent assault.

N.T., 9/29/21, at 433-34.

To reiterate, the fact that the jury was explicitly instructed on an 

element of the offense would tend to suggest that this is not an illegality of 

sentencing claim and, as such, Appellant would have had to object to the jury 
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instructions. See Commonwealth v. Smith, 206 A.3d 551, 565 (Pa. Super. 

2019) (expressing same point of view but assuming, arguendo, that a 

challenge to the validity of a conviction under this felony corruption of minors 

statute constituted a non-waivable challenge to the legality of the sentence).5 

Notwithstanding, accepting that we may review this claim despite a failure to 

challenge the adequacy of the instruction, we must address the fact that this 

instruction does reference two Chapter 31 offenses, one of which resulted in 

an acquittal.

As we have discussed at length supra, Appellant was alleged to have 

committed several instances of indecent assault. Therefore, the guilty verdict 

at one count is not incompatible with a finding that Appellant committed 

several acts of indecent assault. Indeed, the Baker-Myers Court stated, “this 

is not to say the Commonwealth must formally charge or obtain a conviction 

on the Chapter 31 offense or offenses serving as the predicate for the felony 

corruption of minors charge in order to sustain a conviction for corruption of 

minors.” Baker-Myers, 255 A.3d at 234. This leaves open the possibility 

that the Commonwealth could charge one count of felony corruption of minors, 

____________________________________________

5 The Smith Court noted that we have “treated a similar challenge to the 

grading of an offense as raising a question as to the legality of the sentence, 

which is a non-waivable issue.” Smith, 206 A.3d at 565 (citing 

Commonwealth v. Popow, 844 A.2d 13, 16 (Pa. Super. 2004)). The statute 

analyzed in Popow, unlike the statue here, does not separately codify the 

“course of conduct” as a distinct crime. By submitting the actual element to 

the jury, the Sixth Amendment concerns would seem to be eliminated because 

the jury was, in fact, instructed to find the element. Accordingly, any question 

of whether that instruction was sufficient would arguably have to be preserved 

via objection.
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without charging any other Chapter 31 offense. Here, the Commonwealth 

charged one count of indecent assault, and one count of aggravated indecent 

assault. While the jury acquitted on the latter charge, it convicted on the 

former. Because the former offense was not limited to one discrete incident, 

we find that Baker-Myers is distinguishable.6 

Turning to S.G., the jury was instructed as follows: 

In ... the fourth charge for your consideration as it pertains to 

[S.G.] is corruption of a minor. To find the defendant guilty of 

this offense you must find that each of the following three 

elements has been proven beyond a reasonable doubt.

***

And third, that the defendant engaged in a course of conduct that 

constituted the following sexual offenses under the crimes code of 

Pennsylvania. And it’s alleged to be indecent assault. And that 

by that conduct, the defendant corrupted or tended to corrupt the 

morals of [a] minor. 

N.T., 9/29/21, at 432.

The underlying crime of indecent assault referenced in the jury 

instruction is, unlike the corruption of minors charge, by default graded as a 

misdemeanor of the first degree subject to several exceptions. One of these 

is the commission of a course of conduct. Recall that, at count two, Appellant 

was charged with a violation of 18 Pa.C.S. § 3126(a)(7), which criminalizes 

“indecent contact ... for the purpose of arousing sexual desire in the person or 

the complainant and ... the complainant is less than 13 years of age[.]” Per 

the statute, that offense is graded as follows:

____________________________________________

6 The charges in Baker-Myers arose from a single incident.
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(b) Grading.--Indecent assault shall be graded as follows:

***

(3) An offense under subsection (a)(7) is a misdemeanor 

of the first degree unless any of the following apply, in 

which case it is a felony of the third degree:

(i) It is a second or subsequent offense.

(ii) There has been a course of conduct of 

indecent assault by the person.

(iii) The indecent assault was committed by 

touching the complainant’s sexual or intimate parts 

with sexual or intimate parts of the person.

(iv) The indecent assault is committed by touching 

the person’s sexual or intimate parts with the 

complainant’s sexual or intimate parts.

18 Pa.C.S. § 3126 (emphasis added).

The jury was separately instructed on the charge of indecent assault 

that it would have to find a course of conduct and, consistent with the grading 

portion of the statute, asked to render a special finding on that point:

If you find that these elements [of indecent assault] have been 

proven beyond a reasonable doubt you should find that the 

defendant [is] guilty. If you do so find, you should indicate on the 

verdict form whether you also find the following elements proven 

beyond a reasonable doubt. That there has been a course of 

conduct of indecent assault by the person.

A course of conduct means a pattern of actions composed of more 

than one act over a period of time however short, evidencing a 

continuity of conduct.

N.T., 9/29/21, at 430. 

Thus, the jury found that Appellant was guilty of committing a course of 

conduct, i.e., he committed multiple violations of indecent assault upon S.G. 

while she was under thirteen years of age. Thus, even though we would find 
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pursuant to the foregoing analysis that the charge was properly graded as a 

felony of the third degree, the fact that the jury found Appellant guilty of a 

continuing course of conduct independently supports a conclusion that the 

conviction was properly graded as a felony of the third degree.7 We therefore 

find that Appellant has failed to establish that his sentence at either 

information is illegal. 

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/23/2023

____________________________________________

7 We do not suggest that the conviction at that count had preclusive effect, 

but, rather, that there clearly existed a basis for the jury to again separately 

find a “course of conduct” for purposes of the corruption of minors charge.