J-S95027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOEL OREE

Appellant No. 426 EDA 2016

Appeal from the Judgment of Sentence August 21, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000859-2014

BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED MAY 23, 2017

Joel Oree appeals from the August 21, 2015 judgment of sentence 

entered in the Philadelphia County Court of Common Pleas following his 

convictions for rape, involuntary deviate sexual intercourse (“IDSI”), sexual 

assault, indecent exposure, and indecent assault.1 We vacate Oree’s 

judgment of sentence for sexual assault and affirm as to his remaining 

convictions.

The trial court set forth the following facts:

[Ikea] Rogers [(“Victim”)], the victim in this case, first 

met [Oree] on the Broad Street Line train on November 

11, 2013 at approximately five or six o’clock in the 

evening. [Victim] was homeless at the time, and [Oree] 

asked if she wanted to spend the night at his residence. 

____________________________________________

1 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3127(a), and 

3126(a)(2), respectively.
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[Victim] and [Oree] disembarked at the SusquehannaDauphin stop and walked to [Oree]’s apartment.

Once at the apartment, [Oree] gave [Victim] pajamas 

and said she could sleep on the couch. [Victim] fell asleep 

but was later awoken by [Oree] and asked to perform oral 

sex in exchange for staying the night. [Oree] then 

grabbed [Victim] by the neck, forced her on her knees, 

and made her perform oral sex. [Oree] ejaculated in 

[Victim]’s mouth and told her to swallow it, and she did.

[Oree] then grabbed [Victim] by both arms and led her 

to his bed. [Oree] told [Victim] to remove her pajamas, 

and she complied. [Victim] asked [Oree] to wear a 

condom, but [Oree] refused. [Oree] then put his penis 

inside [Victim]. [Victim] told [Oree] to stop, but he did 

not. [Victim] “just kept screaming no” and tried to push 

[Oree] away. According to [Victim], [Oree] was on top of 

her “[a]ll night long.”

Early the next morning, [Victim] gathered her clothes 

and escaped the apartment while [Oree] used the 

bathroom. The next day, having seen her therapist, 

[Victim] met with police a[t] St. Joseph’s Hospital who 

subsequently took her to meet with Special Victims Unit. 

[Victim] now fears for her life, carrying knives and mace in 

her pocketbook every time she is out.

1925(a) Opinion, 7/11/16, at 2-3 (“1925(a) Op.”) (internal citations 

omitted).

On February 5, 2015, following a bench trial, the trial court convicted 

Oree of the aforementioned crimes. On August 21, 2015, the trial court 

sentenced Oree to 7 to 14 years’ incarceration followed by 6 years’ probation 

for the rape conviction, and two concurrent terms of 10 years’ probation for 

the IDSI and sexual assault convictions. The trial court imposed all 

probation terms concurrently. Oree filed a post-sentence motion, which the 
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trial court denied by operation of law on January 4, 2016. On February 3, 

2016, Oree timely filed a notice of appeal.

Oree raises the following issues on appeal:

A. Did the lower court err as a matter of law by imposing 

separate sentences on the charges of sexual assault, 

rape and involuntary deviate sexual intercourse, where 

sexual assault is a lesser included offense of the latter 

two offenses?

B. Were the verdicts against the weight of the evidence 

where Ms. Rogers gave inconsistent descriptions of the 

night in question and appell[]ant offered a simple 

explanation for their meeting?

C. Did the lower court abuse its discretion by imposing a 

sentence in excess of the guideline range without 

properly stating the basis for doing so on the record?

Oree’s Br. at 5 (full capitalization omitted).

Oree first claims that the sexual assault conviction merged with the 

rape and IDSI convictions for sentencing purposes.

“A claim that crimes should have merged for sentencing purposes 

raises a challenge to the legality of the sentence,” for which our standard of 

review is de novo and our scope of review is plenary. Commonwealth v. 

Nero, 58 A.3d 802, 806 (Pa.Super. 2012) (quoting Commonwealth v. 

Quintua, 56 A.3d 399, 400 (Pa.Super. 2012)). 

The statute governing the merger of sentences provides:

No crimes shall merge for sentencing purposes unless 

the crimes arise from a single criminal act and all of the 

statutory elements of one offense are included in the 

statutory elements of the other offense. Where crimes 
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merge for sentencing purposes, the court may sentence 

the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. The statute “prohibits merger unless two distinct facts 

are present: 1) the crimes arise from a single criminal act; and 2) all of the 

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

elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833 

(Pa. 2009). Sexual assault is a lesser-included offense of rape and IDSI. 

See Commonwealth v. Buffington, 828 A.2d 1024, 1032 (Pa. 2003) (“As 

the rape and involuntary deviate sexual intercourse offenses at issue 

subsume a lack of consent, although each requires more, and sexual 

intercourse is common to the offenses, we conclude that sexual assault 

constitutes a lesser-included offense of these crimes.”).2

____________________________________________

2 Section 3101 of the Crimes Code defines sexual intercourse as 

“intercourse per os or per anus, with some penetration however slight; 

emission is not required.” 18 Pa.C.S. § 3101. The Pennsylvania Supreme 

Court in Commonwealth v. Kelley, defined sexual intercourse and deviate 

sexual intercourse as “includ[ing] vaginal intercourse, anal intercourse, oral 

intercourse, and penetration by a foreign object.” 801 A.2d 551, 556 (Pa. 

2002).

Sexual assault occurs when a “person engages in sexual intercourse or 

deviate sexual intercourse with a complainant without the complainant's 

consent.” 18 Pa.C.S. § 3124.1.

Rape occurs when a “person engages in sexual intercourse with a 

complainant . . . [b]y forcible compulsion.” 18 Pa.C.S. § 3121.

IDSI occurs when a “person engages in deviate sexual intercourse with 

a complainant . . . by forcible compulsion[.]” 18 Pa.C.S. § 3123.
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The trial court convicted and sentenced Oree for three separate 

criminal acts. In its 1925(a) opinion, however, it acknowledged that the 

sexual assault conviction arose from the same criminal acts as the rape and 

IDSI convictions. 1925(a) Op. at 4. We agree.

The Pennsylvania Supreme Court has previously explained that

an overarching chain of events does not constitute a single 

criminal act when there is a break in that chain. A break 

requires both that: (1) the acts constituting commission of 

the first crime were completed before the defendant began 

committing the second crime; and (2) proof of the second 

crime did not in any way rely on the facts necessary to 

prove the first crime. In addition, the break must be 

either: (1) a significant temporal lapse; or (2) where 

applicable, indicated by a change in the criminal intent of 

the defendant at some point during the sequence. Where a 

defendant is convicted of two or more crimes and there is 

no break, the court must then proceed to the merger 

analysis as above described. If the acts that make-up the 

first crime are complete before the defendant begins the 

second crime, if proof of the second crime does not rely on 

any of the facts supplying proof of the first crime, and if 

there is either a significant temporal break or a change in 

the defendant’s intent, the defendant will have committed 

multiple criminal acts.

Commonwealth v. Gatling, 807 A.2d 890, 900 (Pa. 2002). The Court 

warned against an overly broad definition of “single criminal act” based on 

its “concern . . . to avoid giving criminals a ‘volume discount’ on crime.” Id.

at 897 (quoting Commonwealth v. Anderson, 650 A.2d 20, 22 (Pa. 

1994)).

Here, although there is evidence that Oree engaged in two separate 
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criminal acts,3the Commonwealth did not establish a third act to form the 

basis of the sexual assault conviction. The Commonwealth argues that there 

were at least three criminal acts because “[t]he sexual assault continued 

throughout the night.” Cmwlth’s Br. at 7. However, there must be a break 

in the “overarching chain of events.” Gatling, 807 A.2d at 900. The 

Commonwealth’s contention that the sexual assault continued throughout 

the night does not indicate a significant temporal lapse or a change in Oree’s 

criminal intent that would support a “break” between two separate criminal 

acts. Id. Thus, the trial court, based on its own factual findings, erred in 

imposing a sentence on the sexual assault conviction, which merged with the 

rape and IDSI convictions.

Remand, however, is not necessary because the trial court imposed 

concurrent sentences of 10 years for sexual assault and IDSI. Vacating the 

judgment of sentence for sexual assault does not affect the overall 

sentencing scheme. See Commonwealth v. Lomax, 8 A.3d 1264, 1268-

69 (Pa.Super. 2010) (finding remand not required when vacating judgment 

of sentence would not disturb overall sentencing scheme).

____________________________________________

3 Oree first forced [Victim] to perform oral sex on him until he 

“ejaculated in [Victim]’s mouth and told her to swallow it.” 1925(a) Op. at 

2-3. Next, Oree “led her to his bed [and told her] to remove her pajamas 

. . . [and] then put his penis inside [her].” Id. at 3.
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Next, Oree claims that the verdicts were against the weight of the 

evidence. This court reviews a weight of the evidence claim for an abuse of 

discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “One 

of the least assailable reasons for granting or denying a new trial is the 

lower court’s conviction that the verdict was or was not against the weight of 

the evidence.” Id. (quoting Commonwealth v. Widmer 744 A.2d 745, 

753 (Pa. 2000)). “Because the trial judge has had the opportunity to hear 

and see the evidence presented, an appellate court will give the gravest 

consideration to the findings and reasons advanced by the trial judge when 

reviewing a trial court’s determination that the verdict is against the weight

of the evidence.” Id.

Oree claims the verdict was against the weight of the evidence 

because Victim gave inconsistent descriptions of the events when she stated 

that Oree was on top of her the entire night but then testified it was only for 

about two hours. Oree further claims Victim’s testimony that he violently 

handled and hurt her are not credible because there were no bruises or 

injuries apparent during her examination. However, the trial court, as the 

fact-finder was free to credit Victim’s testimony. See Commonwealth v. 

Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) (credibility determination “lies 

solely within the province of the factfinder”); Commonwealth v. DeJesus,

860 A.2d 102, 107 (Pa.Super. 2004) (“The weight of the evidence is 

exclusively for the finder of fact, which is free to believe all, part, or none of 
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the evidence, and to assess the credibility of the witnesses.”). The trial 

court did not abuse its discretion when it found the verdict was not against 

the weight of the evidence.

Finally, Oree challenges the discretionary aspects of his sentence, 

arguing that the trial court failed to state on the record its reasons for 

imposing a sentence in excess of the guideline range. However, Oree has 

waived this claim by failing to raise it in his Pennsylvania Rule of Appellate 

Procedure 1925(b) statement. See Commonwealth v. Lord, 719 A.2d 

306, 309 (Pa. 1998) (“Any issues not raised in a [Rule] 1925(b) statement 

will be deemed waived.”).

Judgment of sentence for sexual assault vacated. Judgment of 

sentence affirmed as to the remaining convictions.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2017