J-S14009-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANGEL NATAL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 876 EDA 2017

Appeal from the Judgment of Sentence February 17, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0004656-2015

BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.: FILED MAY 09, 2018

Angel Natal appeals from the judgment of sentence imposed on 

February 17, 2017, in the Court of Common Pleas of Philadelphia County. The 

trial court found Natal guilty of rape (forcible compulsion), rape (unconscious 

victim), statutory sexual assault, sexual assault, corruption of minors, and 

indecent assault.1 The charges stemmed from Natal’s sexual contact with his 

13-year-old stepsister. The trial court sentenced Natal to an aggregate term 

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 Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3121(a)(1) and (a)(3), 3122.1, 3124.1, 6301, and 3126(a)(2).
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of imprisonment of six to 15 years, followed by a 15-year term of probation.2 

Natal contends the sentence for the indecent assault charge is illegal “because 

that charge merged with the rape conviction as of 18 Pa.C.S. § 3121(a)(1) for 

purposes of sentencing given that both convictions are based on the act of 

forcible intercourse[.]” Natal’s Brief at 3, citing Commonwealth v. Smith, 

459 A.2d 777, 788 (Pa. Super. 1983). Based on the following, the judgment 

of sentence for indecent assault (forcible compulsion) is vacated. The 

judgment of sentence in all other respects is affirmed.3

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2 Specifically, the trial court imposed a sentence of six to 15 years’ 

imprisonment, followed by five years’ probation on the rape (forcible 

compulsion) charge; 10 years’ probation on the statutory sexual assault 

charge, to run consecutively with the rape charge; 10 years’ probation on the 

sexual assault charge, to run concurrent with the rape charge; five years’ 

probation on the corruption of minors charge, to run concurrent to the rape 

charge; five years’ probation on the indecent assault charge, to run concurrent 

with the rape charge; and six to 15 years’ incarceration followed by five years 

probation on the rape (unconscious victim) charge, to run concurrent to the 

rape - forcible compulsion charge.

3 This Court, on July 5, 2017, ordered Natal to show cause why his March 6, 

2017 appeal should not be quashed as interlocutory, as Natal had filed his 

appeal from the verdict of guilt entered on October 18, 2016. See 

Commonwealth v. Charles O’Neill, 578 A.2d 1334, 1335 (Pa. Super. 1990) 

(“In criminal cases appeals lie from the judgment of sentence rather than from 

the verdict of guilt.”). Natal failed to file a response to this Order. 

Subsequently, however, Natal filed a petition to amend the notice of appeal.

On September 19, 2017, this Court directed Natal to file an amended notice

of appeal referencing the February 17, 2017 judgment of sentence, and 

permitted Natal to file a Pa.R.A.P. 1925(b) statement of errors complained of 

on appeal. On September 21, 2017, Natal filed an amended notice of appeal 

and concise statement. 
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The parties are well acquainted with the procedural history that is fully 

set forth in the trial court’s opinion and, therefore, we do not restate it herein. 

See Trial Court Opinion, 10/5/2017, at 1-2.

Natal claims his five-year term of probation for rape by forcible 

compulsion (imposed consecutively to the six-to-fifteen year term of 

imprisonment for that offense) and his concurrent five-year term of probation 

for indecent assault should merge for purposes of sentencing. 

Preliminarily, we note the merger claim presented by Natal is a 

challenge to the legality of the sentence and, therefore, is not subject to 

waiver even though Natal raised this claim for the first time in his Pa.R.A.P. 

1925(b) statement.4 See Commonwealth v. Glass, 50 A.3d 720, 730 (Pa. 

Super. 2012) (“[A] claim that crimes should have merged for purposes of 

sentencing challenges the legality of a sentence and, thus, cannot be 

waived.”). In reviewing such a claim, “our scope of review is plenary and our 

standard of review is de novo.” Commonwealth v. Lomax, 8 A.3d 1264,

1267 (Pa. Super. 2010).

Pennsylvania’s merger doctrine is codified at Section 9765 of the 

Sentencing Code, as follows:

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 

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4 Natal raised his merger claim for the first time in his September 21, 2017 

concise statement.
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offense. Where crimes merge for sentencing purposes, the court 

may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. 

Relevant to the merger issue raised herein are Natal’s convictions for 

rape (forcible compulsion), 18 Pa.C.S. § 3121(a)(1), and indecent assault 

(forcible compulsion), 18 Pa.C.S. § 3126(a)(2). “A person commits a felony 

of the first degree when the person engages in sexual intercourse with a 

complainant: ... (1) By forcible compulsion.” 18 Pa.C.S. § 3121(a)(1). “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: ... (2) the person does so by forcible compulsion[.]” 18 

Pa.C.S. § 3126(a)(2). 

The Crimes Code defines “Forcible compulsion” in relevant part as 

“Compulsion by use of physical, intellectual, moral, emotional or psychological 

force, either express or implied. . . .” 18 Pa.C.S. § 3101. The Crimes Code 

defines “Indecent contact” as “Any touching of the sexual or other intimate 

parts of the person for the purpose of arousing or gratifying sexual desire, in 

any person. Id. Furthermore, “Sexual intercourse” is defined as follows: “In 

addition to its ordinary meaning, includes intercourse per os or per anus, with 

some penetration however slight; emission is not required.” Id.

Generally, “a conviction for indecent assault will merge into a conviction 

for rape.” Commonwealth v. Smith, 459 A.2d 777, 788 (Pa. Super. 1983). 
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However, “when an indecent assault conviction is predicated upon an act 

separate from the act of forcible intercourse, the indecent assault conviction 

does not merge with a conviction for rape. This is true whether the act which 

constitutes indecent assault is committed immediately prior to, or 

concurrently with the rape.” Commonwealth v. Richter, 676 A.2d 1232, 

1236 (Pa. Super. 1996) (defendant fondled victim’s breasts before placing his 

penis in her vagina). 

The trial court, the fact-finder in this case, found merit in Natal’s claim, 

stating in its Rule 1925(a) opinion:

Because the court concedes the indecent assault conviction 

merges with the rape forcible compulsion conviction, no sentence 

may be imposed on the lesser included crime of indecent assault. 

Therefore, the judgment of sentence with regard to the indecent 

assault should be vacated.” 

Trial Court Opinion, 10/5/2017, at 2-3. The Commonwealth, however, 

asserts:

Because the court convicted [Natal] of indecent assault for groping 

the victim all over her body, and convicted him of rape for 

penetrating her vaginally, two separate acts, it properly imposed 

separate concurrent sentences for the two offenses.

****

... The victim awoke on her living room couch to find her pants 

around her ankles and [Natal] straddling her and groping her all 

over her body (N.T. 10/12/16, 66). He then gripped her right 

thigh with one hand, holding it down, and inserted his penis in her 

vagina. (N.T. 10/12/16, 17, 28-29). She pushed him off and he 

went upstairs. (N.T., 10/12/16, 25-26).
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Commonwealth’s Brief, at 5, 6. Based on our review, we agree with the trial 

court that merger applies here, since we find Natal’s rape and indecent assault 

convictions arose from the same act of forcing the victim to engage in sexual 

intercourse.

On direct examination, the victim recounted the sexual encounter with 

Natal:

Then I fell asleep on the couch. And I woke up to a sharp pain. 

And I woke up and looked, saw him on top of me. And I looked 

down and he – I saw his pants down, his penis inside my vagina.

 

As I said, his pants were down, and his penis was inside my 

vagina. And when I was trying to get him off of me, I couldn’t. 

But as soon as he moved, I pushed him off.

N.T., 10/12/2016, at 17, 22. The victim further testified:

Q. Did he touch you in any other places on your body?

A. My thigh.

Q. All right. Describe that for the Court. How did he touch your 

thigh?

A. He was gripping onto it.

Q. He was gripping your thigh?

A. Yes.

** **

Q. Now, you said he was holding your thigh. What is he – can you 

describe that a little more. What does that mean, holding your –

tell us what does that mean.

A. Like he was just holding me down while he was doing –
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Q. Holding your thigh down as this was happening?

A. As he fell when I pushed him.

Id. at 28-29.

Later, on cross examination, the victim was questioned:

Q. Okay. Now, you testified that, I believe, when you – Mr. Natal 

was holding your thigh while this was happening. He had gripped 

your thigh; is that right?

A. That was when he moved. That was when he gripped my 

thigh, when I pushed him off. 

Q. There was a shift?

A. Yes.

Q. And when he shifted he grabbed your thigh?

A. Yes.

****

Q. Before grabbing your thigh, where were his hands?

A. He was holding my wrist.

Id. at 54-55.

While the Commonwealth maintains that Natal’s indecent assault 

conviction was based upon the separate act of Natal “groping the victim all 

over her body,”5the Commonwealth has mischaracterized the record. The 

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5 The Commonwealth cites to page 66 of the trial transcript, referencing a 

portion of a DHS report, which was used by trial counsel on cross examination 

to impeach the victim’s testimony. However, the victim only testified trial 

counsel read the report correctly and she did not remember the statement:
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victim’s specific testimony revealed Natal gripped her thigh and held her down 

while he inserted his penis in her vagina. Therefore, on this record, we agree 

with the trial court that merger applies, as the single act of forcible intercourse 

underlies Natal’s convictions for rape and indecent assault. Accordingly, we 

vacate the judgment of sentence solely with respect to the concurrent fiveyear term of probation imposed on the indecent assault conviction.6

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By [Counsel for Natal]:

Q. Showing you a portion of what I’ve marked as D-2, where it 

says child told RS 2/13/2015 child and family went to dinner. Child 

said that she fell asleep on the couch. When she woke up, AP was 

touching her all over her body, and tried to get her pants down. 

Child pushed AP away, told him to stop. Child says she ran to her 

bedroom and locked the door. Did I read that correctly?

A. Yes.

Q. Okay. And isn’t that what you told the DHS worker who came?

A. I don’t remember.

Q. You don’t’ remember? Okay.

N.T., 10/12/2016, at 65-66. 

6 Remand is not necessary in this case since our disposition does not upset 

the trial court’s overall sentencing scheme. See Commonwealth v. Lomax, 

8 A.3d 1264, 1268 (Pa. Super. 2010) (remand unnecessary where sentence 

for indecent assault merged with sentence for rape of a child, and indecent 

assault sentence could be vacated without upsetting overall sentencing 

scheme).
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Judgment of sentence for indecent assault (forcible compulsion) is 

vacated. Judgment of sentence affirmed in all other respects. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/18