J-A27015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AUSTIN JACOB KNIGHT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 481 MDA 2021

Appeal from the Judgment of Sentence Entered January 12, 2021

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

No(s): CP-35-CR-0000062-2019

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 19, 2022

Appellant, Austin Jacob Knight, appeals from the January 12, 2021 

Judgment of Sentence entered in the Lackawanna County Court of Common 

Pleas following his jury conviction of Aggravated Indecent Assault Without 

Consent, Sexual Assault, Indecent Assault Without Consent, Unlawful Contact 

with a Minor, and Corruption of Minors.

1

 After careful review, we affirm.

The relevant facts and procedural history are as follows. On January 

25, 2018, R.K. (“Victim”) reported to police that Appellant, who was 28 years 

old, had sexually assaulted her on October 31, 2017, when Victim was 16 

years old. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3125(a)(1), 3124.1, 3126(a)(1), 6318(a)(1), and 

6301(a)(1)(ii), respectively.
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Following an investigation of Victim’s allegations, on February 25, 2019, 

the Commonwealth charged Appellant with the above crimes arising from his 

conduct on October 31, 2017. 

On January 9, 2020, the Commonwealth filed a Motion in Limine to 

Introduce Evidence of Other Crimes, Wrongs, or Acts. In an effort to establish 

Appellant’s pattern of manipulative and coercive behavior towards minor 

females, the Commonwealth sought to introduce the testimony of Janet Bash. 

Ms. Bash had previously had a relationship with Appellant when she was 13 

years old, and Appellant was 19 years old.2 Their relationship began as a 

friendship, became sexual when Ms. Bash was 14 years old, and resulted in 

Ms. Bash becoming pregnant at age 16. The Commonwealth represented that 

Ms. Bash would offer testimony that, inter alia, Appellant often performed sex 

acts on her even when she said she did not want him to and that he used 

coercion and force. The Commonwealth argued that both the difference 

between Ms. Bash’s and Appellant’s ages and Appellant’s use of pressure to 

coerce Ms. Bash into engaging in various sexual acts were relevant at trial.

In response, on September 30, 2020, Appellant filed a Motion in Limine 

to Exclude Evidence of Prior Crimes, Wrongs, or Acts pursuant to Pa.R.Crim.P. 

404(b), asserting that Ms. Bash’s testimony was irrelevant and unfairly 

prejudicial. In particular, Appellant asserted that Ms. Bash had no connection 

____________________________________________

2 At the time of Appellant’s trial, Ms. Bash was 22 or 23 years old. See N.T. 

Trial Motions Hr’g, 10/5/20, at 3.
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to the victim in, or “presence in the fact pattern” of, this case.3 Appellant 

further averred that “[t]here is no logical connection to [Appellant’s] crimes 

and the unsubstantiated statement of a prior acquaintance.”4 Appellant 

concluded that the court should exclude Ms. Bash’s testimony because it would 

unduly prejudice and confuse the jury because “the alleged prior bad acts 

have similar elements as [Appellant’s] current charges.”

5

 

On October 5, 2020, immediately prior to the commencement of 

Appellant’s trial, the trial court heard argument on the motions in limine, after 

which it granted the Commonwealth’s motion, denied Appellant’s motion, and 

permitted the Commonwealth to present Ms. Bash’s testimony at trial.

At trial, the Commonwealth presented the testimony of, inter alia, Victim

and Ms. Bash.6 Victim explained that she and Appellant had met in August of 

2017 at Skateaway, a skating rink in Wilkes Barre, and had developed a 

____________________________________________

3 Motion in Limine, 9/30/20, at ¶ 12.

4 Id. at ¶ 13.

5 Id. at ¶ 16, 19-20.

6 The Commonwealth also presented the testimony of Cheryl Friedman, the 

nurse practitioner at The Children’s Advocacy Center in Scranton who 

performed Victim’s sexual assault physical exam; Officer Jason O’Hora of the 

Moosic Borough Police Department; Sara Worsnick, a Pennsylvania State 

Police forensic analyst; and Melinda Charley, a Pennsylvania State Police DNA 

forensic scientist. In addition to its testimonial evidence, the Commonwealth 

presented physical evidence corroborating Victim’s claim that Appellant had 

raped her, namely Appellant’s DNA in semen found on towel Victim indicated 

that she had used to clean herself after Appellant ejaculated on her. Victim 

saved this evidence in her home and turned it over to police when she reported 

the rape.
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friendship. Appellant was aware from the outset that Victim was only 16 years 

old, and Appellant led Victim to believe that he was in his early twenties. As 

time passed, Appellant garnered Victim’s and Victim’s mother’s trust, and 

Victim, with her mother’s approval, began to rely on him for transportation to 

the skating rink. The relationship between Appellant and Victim soon 

alienated Victim from her friends, however, and she became estranged from 

them.

Eventually, the friendship between Victim and Appellant evolved into a 

sexual relationship. Victim testified that this “confused her” because she 

“never really had any sexual knowledge in general” but that she ignored her 

instincts because she thought “this is what people do, I shouldn’t be doing be 

saying anything. You know, this is normal.”7 Victim testified that Appellant 

kissed her and touched and digitally penetrated her vagina and touched her 

breasts. She testified that, by the fall of 2017, she was uncomfortable with 

Appellant’s actions, which included the performance of oral sex on her. She 

further testified that she told Appellant she did not want him to perform oral 

sex on her, but that he would do it anyway. She also testified that when she 

expressed feeling uncomfortable in sexual situations, Appellant would 

persuade her that he cared about her and just wanted to “make [her] feel 

____________________________________________

7 N.T. Trial, 10/5/20, at 39.
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good.”8 Victim testified that, ultimately, she realized that Appellant had been 

grooming her for sexual abuse by talking her into thinking a sexual 

relationship was what she wanted. 

On the night of October 31, 2017, Victim went to a haunted house with 

Appellant. While the two were standing in line, Appellant “would press himself 

up against” Victim with his “penis [] against [her] butt.”9 After the haunted 

house, Appellant and Victim returned to Victim’s home where, on Victim’s front 

porch, Appellant penetrated Victim’s vagina digitally and performed oral sex 

on her even though she expressed to Appellant that she did not want him to. 

Later, the two retreated to Victim’s basement where Appellant’s sexual 

advances escalated and culminated in Appellant performing oral sex and

intercourse with Victim against her will. Victim testified that she “said that I 

didn’t want to. I said that very firmly that night. It was the only time that I 

could say [] without a doubt that I completely and honestly didn’t want to do 

anything, and I made it very clear.”10 

Even after this incident, Victim continued to spend time with Appellant, 

although the two became more distant. Victim explained that Appellant’s 

distance made her nervous because Appellant had begun yelling at her and 

____________________________________________

8 Id. at 40. See also id. at 42 (Where Victim testified that “I thought, you 

know, he wants to be kind and he wants to make me feel good. He wants to 

take care of me. I might as well, you know.”).

9 Id. at 40.

10 Id. at 46. 
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being verbally abusive causing Victim to become afraid that Appellant would 

hurt her. She testified, however, that she feared cutting off all contact with 

Appellant because she “knew the risk.”11 Victim also testified that she was 

also scared of Appellant because, on one occasion after the rape, Appellant, 

while intoxicated, approached Victim and her mother at Skateaway and pulled 

out a knife. 

Victim testified that she did not tell anyone about the rape until January 

2018. She explained that she came forward because she “was struggling after 

the main sexual assault experience. I realized that I was being groomed, and 

I didn’t realize how long it was happening, obviously. Looking back on the 

situation it made me feel like he was the only one there for me all of the time, 

so I felt like I needed to hold onto that, even though I was going through so 

much pain from it.”12

The Commonwealth then presented the testimony of Ms. Bash. In 

addition to the facts proffered by the Commonwealth in its motion in limine, 

Ms. Bash testified that at the time she met Appellant she was depressed and 

did not have much of a social life. Ms. Bash’s father worked with Appellant 

and introduced Appellant to Ms. Bash when she was 13 years old. When she 

was 14 or 15 years old, her friendship with then-21-year-old Appellant, 

became sexual. Also, around that time, Appellant moved into Ms. Bash’s 

____________________________________________

11 Id. at 53.

12 Id. at 59-60.
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family’s home. Relevantly, Ms. Bash testified that she requested that 

Appellant use condoms when they had intercourse, but Appellant refused, 

explaining that they hurt him. Ms. Bash testified that she naively believed 

Appellant. She also testified that she felt pressured to have intercourse with 

Appellant and to permit him to ejaculate inside her. She testified that

“[s]ometimes he forced” her to “finish inside. Like he would hold me down 

and like pressure me into it or use words” such as “[i]t would make us 

closer.”

13

 She also testified that, although he never physically forced her to 

have intercourse, she felt pressured because he told her that if she did not 

agree, Appellant “would leave or find someone else to do it[.]”14 Ms. Bash 

testified that sometimes she would try to physically resist Appellant by 

squirming away during intercourse but Appellant would pin her down. 

Appellant testified on his own behalf.15 Relevantly, Appellant denied 

that he had a sexual relationship with Victim and denied that he had sexually 

assaulted her. Appellant advanced the defense that Victim was a “troubled 

young girl”16 with mental health problems17 who came from a broken home. 

He asserted that Victim’s mother, who worked nights, was not around much 

____________________________________________

13 Id. at 88.

14 Id.

15 Appellant also presented the testimony of Victim’s mother and Appellant’s 

friend, Steven Ashworth. 

16 N.T. Trial, 10/6/20 at 106.

17 Victim suffered from post-traumatic stress disorder and depression.
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and that her father was not “in the picture.”18 Appellant asserted that he was 

one of the only stable people in Victim’s life and posited that Victim had felt 

abandoned by him when he took a new job, which resulted in him having less 

time for her. He concluded that this caused Victim to become angry with him

and to fabricate the sexual assault allegation. Appellant’s counsel reiterated 

these themes during his closing argument. 

The Commonwealth used its closing argument to rebut Appellant’s 

defense that Victim fabricated her account of their sexual relationship and 

Appellant’s assault by emphasizing that Victim had little to gain from accusing 

Appellant of crimes he did not commit and from testifying publicly, which 

required her to reveal intimate and embarrassing details of being sexually 

assaulted. To this end, the prosecutor highlighted the potential 

embarrassment caused by reporting and detailing her assault to male police 

officers, undergoing an invasive sexual assault medical exam, and testifying 

publicly “in front of all of you, right, a room full of strangers in front of her 

dad who is by her side[.]”19

Following the Commonwealth’s closing argument, Appellant moved for 

a mistrial based on the prosecutor’s reference to what Appellant characterized 

as “a very important fact that was not offered into evidence[.]”20 In particular, 

____________________________________________

18 N.T. Trial, 10/5/20, at 22.

19 N.T. Trial, 10/6/20, at 121.

20 Id. at 144.
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Appellant objected to the Commonwealth having identified Victim’s father, 

who was seated in the courtroom. Appellant asserted that Victim’s father’s 

identity was not in evidence and was “inflammatory, prejudicial and . . . goes 

against [Appellant’s] defense” that Victim did not have the support of her 

family.21 The court denied Appellant’s motion.

At the conclusion of trial, the jury convicted Appellant of all charges. On 

January 12, 2021, the trial court sentenced Appellant to an aggregate term of 

incarceration of 84 to 168 months, comprised of a 30 to 60 months for the

Aggravated Indecent Assault conviction, 42 to 84 months for the Sexual 

Assault conviction, and 12 to 24 months for the Indecent Assault conviction. 

The court ordered the sentences to run consecutively.22

On January 22, 2021, Appellant filed a Petition for Reconsideration of 

Sentence, asserting that because the conduct for which the jury convicted 

Appellant occurred on one night, the court erred in not merging his convictions 

for purposes of sentencing. In the alternative, Appellant requested that the 

court impose concurrent sentences for those convictions. 

On March 16, 2021, the trial court denied Appellant’s petition for 

reconsideration of sentence, finding that “the charging documents and 

supporting documents of record describe the operative facts in such a way as 

____________________________________________

21 Id.

22 The court also ordered Appellant to serve a consecutive term of 2 years of 

probation for his Aggravated Indecent Assault conviction and two consecutive 

terms of 2 and 4 years of probation for his Unlawful Contact with a Minor and 

Corruption of Minors convictions, respectively.
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to distinguish the specific conduct from one single act to multiple incidents.”23 

Therefore, the court concluded that the charges do not merge for sentencing 

purposes.

This timely appeal followed. Both Appellant and the trial court complied 

with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Did the trial court err in granting the Commonwealth’s Motion 

in Limine to introduce evidence of Appellant’s crimes, wrongs[,] 

or acts?

2. Did the trial court err in denying Appellant’s Motion for a 

Mistrial after the district attorney referred to facts not in 

evidence during closing arguments?

3. Did the trial court err in not merging a lesser included crime 

with other princip[al] crimes at sentencing?

Appellant’s Brief at 7.

A.

In his first issue, Appellant asserts that the trial court erred in denying 

his motion in limine to preclude the testimony of Ms. Bash. Id. at 17-23.

Appellant argues that Ms. Bash’s testimony was “not substantially related to 

the matter at hand, the fact pattern was not strikingly similar to the matter at 

trial, the prior acts were remote in time, [] the evidence offered had no 

probative value[,]” and the Commonwealth sought to introduce it “solely to 

show that [Appellant] acted in conformity with alleged past behavior.” Id. at 

20. In support of his argument, Appellant emphasizes that: (1) Ms. Bash and 

____________________________________________

23 Order, 3/16/21, at 1 n.1.
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Appellant were introduced by Ms. Bash’s father and their relationship had his 

blessing; (2) there was only a six-year age gap between Ms. Bash and 

Appellant; (3) their sexual relationship was consensual; and (4) six years had 

passed between the time of Appellant’s relationship with Ms. Bash and his 

relationship with Victim. Id. at 20-21.

The “[a]dmission of evidence is within the sound discretion of the trial 

court and will be reversed only upon a showing that the trial court clearly 

abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. 

Super. 2015) (en banc) (citations and quotation marks omitted).

“Accordingly, a ruling admitting evidence will not be disturbed on appeal 

unless that ruling reflects manifest unreasonableness, or partiality, prejudice, 

bias, or ill-will, or such lack of support to be clearly erroneous.” 

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citations 

and internal quotations omitted). 

Pennsylvania Rule of Evidence 404(b) prohibits evidence of a 

defendant’s prior bad acts “to prove a person’s character” or demonstrate 

“that on a particular occasion the person acted in accordance with the 

character.” Pa.R.E. 404(b)(1). Nevertheless, the Rule also provides that prior 

bad acts evidence “may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence 

of mistake, or lack of accident.” Pa.R.E. 404(b)(2).

To establish one of the exceptions set forth in Rule 404(b), there must 

be “a close factual nexus sufficient to demonstrate the connective relevance 
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of the prior bad acts to the crime in question.” Commonwealth v. Sami, 

243 A.3d 991, 999 (Pa. Super. 2020) (citation and emphasis omitted). 

Additionally, the term “unfair prejudice” in Rule 404(b)(2) “means a tendency 

to suggest a decision on an improper basis or to divert the jury’s attention 

away from its duty of weighing the evidence impartially.” Commonwealth 

v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (citation omitted).

In considering the common plan exception, “the trial court must first 

examine the details and surrounding circumstances of each criminal incident 

to assure that the evidence reveals criminal conduct which is distinctive and 

so nearly identical as to become the signature of the same perpetrator. 

Relevant to such a finding will be the habits or patterns of action or conduct 

undertaken by the perpetrator to commit crime, as well as the time, place, 

and types of victims typically chosen by the perpetrator.” Tyson, 119 A.3d 

at 358-59 (Pa. Super. 2015). Importantly, “[t]he common scheme exception 

does not require that the two scenarios be identical in every respect.” Id. at 

360 n.3 (emphasis omitted).

In determining the admissibility of Ms. Bash’s testimony, the trial court 

scrupulously compared the details of Appellant’s relationship with her to 

Appellant’s relationship with Victim and “found these situations substantially 

similar such that they indicated a common plan[.]” Trial Ct. Op., 3/9/22, at 

26. In particular, the trial court opened as follows:

The similarities between Janet Bash and [Victim] indicate a 

common plan in which [] Appellant earned the trust of naïve, 

socially isolated minor females, initiated daily communication and 
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regular contact, manipulated them into inappropriate touching 

and kissing, evolving into sexual contact, and eliciting sexual 

contact through confusion, verbal coercion[,] and physical force. 

[] Appellant created opportunities for Janet Bash and [Victim] to 

spend periods of time [with him] encouraging sexual conduct to 

occur. []Appellant’s daily interactions with Janet Bash and 

[Victim] conditioned the minor females to accept sexual conduct 

and be deterred from resisting or reporting the assaults.

Id. at 26-27.

In addition, the trial court weighed the probative value of this evidence 

against its prejudicial effect and determined that “any prejudicial effect the 

testimony may have had was insignificant compared to the overwhelming 

evidence of Appellant’s guilt[,]” including Victim’s detailed testimony and the 

forensic evidence. Id. at 27-28. Accordingly, the trial court concluded that 

“[g]iven the similarities, this [c]ourt did not find Appellant’s prior bad acts to 

be unfairly prejudicial[;]” rather, they “established that [] Appellant’s actions 

were not the result of mistake or accident and instead evidenced a pattern or 

common scheme by [] Appellant.” Id. at 28. 

Following our review, we conclude that the trial court did not abuse its 

discretion in permitting the Commonwealth to offer Ms. Bash’s testimony to 

establish that Appellant’s actions were part of a common scheme of coercion 

and manipulation of teenage girls. Accordingly, Appellant is not entitled to 

relief on this claim. 

B.

In his second issue, Appellant asserts that the trial court erred in 

denying his motion for a mistrial after the prosecutor identified Victim’s 
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father’s and noted his presence in the courtroom during the closing argument. 

Appellant’s Brief at 23-27. He claims that the prosecutor’s identification of 

Victim’s father was calculated to show that Victim had his support to 

“undermine [ ] Appellant’s defense[] and inflame the passions of the jury.” 

Id. at 27. He argues that identifying Victim’s father was “more than rhetorical 

flair” and constituted a “reference to a fact not admitted into the record of 

evidence and deprived [] Appellant of a fair and impartial jury.” Id.

We review a trial court’s denial of a motion for mistrial for an abuse of 

discretion. Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). “[N]ot 

every inappropriate remark by a prosecutor constitutes reversible error.” 

Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super. 2012). “It is [] well 

established that a trial court may grant a mistrial only where the incident upon 

which the motion is based is of such a nature that its unavoidable effect is to 

deprive the defendant of a fair trial by preventing the jury from weighing and 

rendering a true verdict.” Bryant, 67 A.3d at 728 (quotation marks and 

citation omitted).

The Commonwealth is “permitted wide latitude to advocate [its] case, 

and may properly employ a degree of [oratorical] flair in so doing.” 

Commonwealth v. Keaton, 729 A.2d 529, 540 (Pa. 1999). Moreover, “[i]n 

determining whether the prosecutor engaged in misconduct, we must keep in 

mind that comments made by a prosecutor must be examined within the 

context of defense counsel’s conduct. It is well settled that the prosecutor 

may fairly respond to points made in the defense closing.” Commonwealth 
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v. Hogentogler, 53 A.3d 866, 878 (Pa. Super. 2021) (citation omitted); see 

also Commonwealth v. Carson, 913 A.2d 220, 236 (Pa. 2006) (stating that 

a prosecutor is entitled to fairly respond to arguments made by defense 

counsel in closing argument). In fact, “[e]ven an otherwise improper 

comment may be appropriate if it is in fair response to defense counsel’s 

remarks.” Commonwealth v. Burno, 94 A.3d 956, 974 (Pa. 2014) (citation 

omitted.

The trial court evaluated the prosecutor’s reference to and identification 

of Victim’s father, who was seated in the courtroom, in the context of 

Appellant’s defense and his counsel’s closing argument. The trial court aptly 

noted that Appellant based his defense on the notion that Victim fabricated 

the allegations against Appellant because she had mental health issues, came 

from a broken family, and felt abandoned by Appellant. In response to 

Appellant’s defense, the prosecutor asserted that Victim had no reason to lie 

and emphasized, inter alia, the embarrassment and suffering endured by 

Victim by disclosing the sexual assault and the sensitivity of recounting 

intimate personal details to both her family and strangers alike. 

Following its review of the statements made by Appellant, his counsel, 

and the prosecutor in context, the trial court found that the prosecutor’s 

statement—referring to Victim’s embarrassment at disclosing the sexual 

assault to people including father and noting, in passing, his presence in the 

courtroom—was reasonable and was “clearly not in response to a lack of family 

support.” Trial Ct. Op. at 30. The trial court found that “the prosecutor did 
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not refer to [Victim’s] father to counter defense’s lack of family support 

argument nor did the ‘dad’ reference amount to ‘facts not in evidence.’” Id. 

Accordingly, the court concluded that the prosecutor’s remark did not “so 

prejudice the jury that it could not weigh the evidence objectively and render 

a true verdict. A mistrial was not warranted on this contention; thus, this 

[c]ourt did not commit error or abuse its discretion.” Id.

Our review of the notes of testimony confirms the trial court’s 

assessment that the prosecutor’s reference to Victim’s father was offered to 

illustrate the difficulty Victim endured in reporting and recounting the details 

of the sexual assault, not to undermine Appellant’s assertion that Victim’s 

father was not involved in her life. We, therefore, agree with the trial court 

that the statement did not prevent the jury from weighing the evidence 

objectively or rendering a true verdict. Accordingly, the trial court did not 

abuse its discretion in denying Appellant’s motion for a mistrial. Appellant’s 

claim, thus, fails.

C.

In his final issue, Appellant claims that the trial court erred in not 

merging his Indecent Assault conviction into his Sexual Assault and 

Aggravated Indecent Assault convictions as a lesser included offense for 

sentencing purposes. Appellant’s Brief at 28-31. In particular, Appellant 

argues that “[a]t most, there were two crimes committed without the 

complainant’s consent[,]” i.e., the sex acts performed by Appellant on Victim’s 

porch without Victim’s consent and the later sexual assault in Victim’s 
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basement where Appellant assaulted Victim both orally and with his penis and 

[t]he element of indecent contact required for Indecent Assault is an element 

of both Sexual assault and Aggravated Indecent Assault.” Id. at 31. He 

concludes that, because there was “no third incident to support an 

independent crime of Indecent Assault” it is “a lesser included crime of 

Aggravated Indecent Assault and Sexual Assault and should have been 

merged for purposes of sentencing.” Id. 

Whether certain criminal offenses merge for sentencing is a question of 

law. Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). Our 

“scope of review is plenary and our standard of review is de novo.” 

Commonwealth v. Williams, 920 A.2d 887, 889-890 (Pa. Super. 2007)

(citation omitted).

“The merger doctrine developed to prevent punishing a defendant more 

than once for one criminal act.” Commonwealth v. Gatling, 807 A.2d 890, 

894 (Pa. 2002). In Baldwin, our Supreme Court explained, “[t]he 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.” 

Baldwin, 985 A.2d at 833. See also 42 Pa.C.S. § 9765 (“No crimes shall 

merge for sentencing purposes unless the crimes arise from a single criminal 

act and all of the statutory elements of one offense are included in the 

statutory elements of the other offense.”). If either prong is not met, merger 

is not appropriate. Gatling, 807 A.2d 899.
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A lesser-included offense is defined as follows: 

One crime is a lesser-included offense if, while considering the 

underlying factual circumstances, the elements constituting the 

lesser crime as charged are all included within the elements of the 

greater crime, and the greater offense includes at least one 

additional element that is not a requisite for committing the lesser 

crime. 

Id. at 899 n.9.

Section 3126(a)(1) of the Crimes Code provides that “[a] person is 

guilty of [I]ndecent [A]ssault 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 [] the person does so without the complainant’s consent.” 

18 Pa.C.S. § 3126(a)(1). The Crimes Code defines “indecent contact” as 

“[a]ny touching of the sexual or other intimate parts of the person for the 

purpose of arousing or gratifying sexual desire[.]” 18 Pa.C.S. § 3101.

Pursuant to Section 3125(a)(1) of the Crimes Code, a person is guilty 

of Aggravated Indecent Assault when he, without consent, “engages in 

penetration, however slight, of the genitals or anus of a complainant with a 

part of the person’s body for any purpose other than good faith medical, 

hygenic, or law enforcement procedures[.]” 18 Pa.C.S. § 3125(a)(1).

A person is guilty of Sexual Assault “when that person engages in sexual 

intercourse or deviate sexual intercourse with a complainant without the 

complainant’s consent.” 18 Pa.C.S. § 3124.1. 
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In comparing the statutes defining Indecent Assault and Aggravated 

Indecent Assault, we observe that each offense contains an element not 

present in the other. In particular, a conviction of Aggravated Indecent 

Assault requires proof that the defendant penetrate of the genitals or anus of 

the victim and Indecent Assault requires proof that the defendant committed 

the assault to arouse or gratify sexual desire. See Commonwealth v. Allen, 

856 A.2d 1251, 1253-54 (Pa. Super. 2004) (where this Court determined that

Indecent Assault and Aggravated Indecent Assault are not greater and lesserincluded offenses; therefore, merger of convictions of those offenses for 

sentencing purposes was not appropriate).

Similarly, in comparing the statutory elements of Indecent Assault and 

Sexual Assault, we find that the Crimes Code does not require the

Commonwealth to prove that the defendant committed the assault to arouse 

or gratify sexual desire in order to convict the defendant of Sexual Assault, 

but, as noted above, it must prove this element to convict the defendant of 

Indecent Assault. Moreover, a conviction of Sexual Assault requires proof of 

sexual intercourse or deviate sexual intercourse, whereas Indecent Assault 

requires only “indecent contact,” which the Crimes Code defines as “[a]ny 

touching of the sexual or other intimate parts of the person for the purpose of 

arousing or gratifying sexual desire[.]” 18 Pa.C.S. § 3101. Thus, these crimes 

likewise do not merge for sentencing purposes. Appellant is, therefore, not 

entitled to relief on this claim.
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D.

In conclusion, Appellant’s challenge to the trial court’s evidentiary 

ruling, its denial of his motion for a mistrial, and his claim that the trial court 

erred in not merging certain of his convictions for sentencing purposes all fail. 

Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of Sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2022