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J-A28022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THEIN T. TRAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3001 EDA 2022

Appeal from the Order Entered October 24, 2022

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No: CP-51-CR-0006983-2018

COMMONWEALTH OF PENNSYLVANIA

v.

THEIN T. TRAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3168 EDA 2022

Appeal from the Order Entered December 9, 2022

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No: CP-51-CR-0006983-2018

BEFORE: OLSON, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.: FILED MARCH 26, 2024

Appellant, Thein T. Tran, appeals from the orders entered in the Court 

of Common Pleas of Philadelphia County, denying his petition under the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we 

affirm.

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* Retired Senior Judge assigned to the Superior Court.
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On September 20, 2019, following a bench trial, Appellant was convicted 

of three sexual offenses for assaulting a woman at a nightclub. Specifically,

[f]irst [Appellant] repeatedly groped [victim]’s behind on a club’s 

dance floor near the bar area, although she repeatedly pushed his 

hands away; at least once, [Appellant] groped through [victim]’s 

clothes and touched her skin near her vagina. This was indecent 

assault. Second, [Appellant] followed [victim] into the women’s 

bathroom and pushed his way into her bathroom stall, pulled down 

her pants, and began to perform oral sex on her. She quickly 

pushed his head away. This was sexual assault. Third, 

[Appellant] informed [victim], “It’s too late,” and shoved his finger 

inside of her vagina. This was aggravated indecent assault.

Trial Court Letter, 1/13/23, at 1-2 (footnotes omitted).

The trial court found that Appellant’s conduct constituted three separate 

criminal acts within the same criminal episode. Accordingly, on February 25, 

2020, the trial court sentenced Appellant in absentia to consecutive terms of 

6 to 12 months in prison for indecent assault, 41⁄2 to 9 years for sexual assault, 

and 41⁄2 to 9 years for aggravated indecent assault. Appellant did not file a 

direct appeal. 

On February 23, 2021, Appellant filed a counseled timely petition for 

post-conviction relief, claiming that trial counsel was ineffective for: (1) not 

moving for a mistrial when a witness testified about defendant’s prior 

conviction, (2) agreeing to sentencing in absentia, and (3) not presenting 

certain eyewitness testimony. The PCRA court denied the petition. Appellant 

appealed, but later discontinued that appeal on February 7, 2022.
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On July 21, 2022, defendant filed the underlying petition, which he 

styled as a motion to correct an illegal sentence, arguing that his convictions 

should have merged for sentencing purposes. The trial court denied the 

petition.1 This appeal followed. 

On appeal, Appellant argues that his sentence is illegal because the trial 

court failed to merge his sentences for sexual assault, 18 Pa.C.S.A. § 3124.1, 

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1 The trial court first denied the July 21, 2022 by order docketed on October 

24, 2022. There is no written order, however, in the certified record for the 

October 24, 2022 docket entry. On November 16, 2022, Appellant filed a 

notice of appeal (3031 EDA 2022) from the order denying Appellant’s July 21, 

2022 “Motion to Correct Illegal Sentence.” 

On December 9, 2022, the trial court entered again an order denying the July 

21, 2022 motion. A written copy of the order is included in the certified record. 

On December 12, 2022, Appellant filed a notice of appeal (3168 EDA 2022)

from the order denying Appellant’s July 21, 2022 “Motion to Correct Illegal 

Sentence.”

On March 28, 2022, in 3168 EDA 2022, this Court issued a rule to show cause 

why the appeal at 3168 EDA 2022 should not be dismissed as duplicative of 

3001 EDA 2022. Appellant responded, asking this Court not to dismiss either 

appeal and to grant his prior January 4, 2023 application to consolidate the 

appeals.

On May 8, 2023, in 3168 EDA 2022, this Court discharged the show cause 

Order to the merits panel for review. On the same date, in both appeals, this 

Court entered a separate order denying Appellant’s application to consolidate 

the appeals and directed this Court’s Prothonotary to list both appeals 

consecutively. 
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and aggravated indecent assault, 18 Pa.C.S.A. § 3125(a), (a)(1). We 

disagree.2 

Before we can address the merits of the claim, we must determine 

whether the underlying PCRA petition is timely. Upon review, for the reasons 

stated below, we conclude that the underlying petition is untimely, and as 

such, we are prevented from reviewing the merits. 

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2 When reviewing the propriety of an order pertaining to PCRA relief,

we consider the record in the light most favorable to the prevailing 

party at the PCRA level. This Court is limited to determining 

whether the evidence of record supports the conclusions of the 

PCRA court and whether the ruling is free of legal error. We grant 

great deference to the PCRA court’s findings that are supported in 

the record and will not disturb them unless they have no support 

in the certified record. However, we afford no such deference to 

the post-conviction court’s legal conclusions. We thus apply a de 

novo standard of review to the PCRA [c]ourt’s legal conclusions.

Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018) (internal 

citations and quotations omitted).

All PCRA petitions, “including a second or subsequent petition, shall be filed 

within one year of the date the judgment becomes final” unless an exception 

to timeliness exists. 42 Pa.C.S.A. § 9545(b)(1). The one-year time limitation 

can be overcome if a petitioner (1) alleges and proves one of the three 

exceptions set forth in Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a 

petition raising this exception within one year of the date the claim could have 

been presented. 42 Pa.C.S.A. § 9545(b)(2). “The PCRA’s time restrictions 

are jurisdictional in nature. Thus, if a PCRA petition is untimely, neither this 

Court nor the [PCRA] court has jurisdiction over the petition. Without 

jurisdiction, we simply do not have the legal authority to address the 

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 

2006) (internal citations and quotation marks omitted) (overruled on other 

grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)).
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Appellant filed the underlying petition, styled as a motion to correct an 

illegal sentence, on July 21, 2022. The lower court addressed the merits of 

the “motion,” despite being “filed more than two years after his sentence was 

imposed,” Trial Court Letter, 1/13/23, at 1, on the erroneous belief that the 

claim raised by Appellant was a “nonwaivable issue.” While we agree with the 

lower court that Appellant is not entitled to relief, we disagree with the basis 

upon which the court dismissed Appellant’s petition. 

First, the lower court erred in not recognizing that, generally, once a

judgment of sentence is final, the only way to challenge the judgment of 

sentence is through a PCRA petition. See, e.g., Commonwealth v. Taylor, 

65 A.3d 462, 465-66 (Pa. Super. 2013). Generally, any filings filed after the 

judgment of sentence is final are treated as PCRA petitions. Id. 

The claim raised here (merger/legality of the sentence), regardless of 

how it was styled, falls within the purview of the PCRA, and it should have 

been treated as a PCRA petition. See, e.g., Commonwealth v. Fahy, 737 

A.2d 214, 223 (Pa. 1999); Taylor, supra; Commonwealth v. Jackson, 30 

A.3d 516, 521 (Pa. Super. 2011) (defendant’s motion to correct his illegal 

sentence was properly addressed as a PCRA petition, stating broadly, “any 

petition filed after the judgment of sentence becomes final will be treated as 

a PCRA petition”). 

In turn, the first error resulted in additional errors by the lower court. 

Indeed, the lower court failed to establish that the filing was a second PCRA 
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petition and, therefore, subject to the PCRA’s time limitations rules. See,

e.g., Fahy, supra. Finally, the lower court failed to recognize that “[a]lthough 

legality of sentence is always subject to review within the PCRA, claims must 

still first satisfy the PCRA's time limits or one of the exceptions thereto.” Id.

at 223.

Here, it is undisputed that the claim is facially untimely.3 Appellant, 

therefore, had to plead and prove the applicability of the exceptions to the

PCRA’s time-bar. Appellant does not address any of the exceptions to the 

PCRA time bar rules, whether in the underlying petition or on appeal. He 

merely argues that the legality of sentence claim cannot be waived and is not 

subject to the timeliness restrictions of the PCRA.4 Appellant’s Brief at 2. 

There is no statute or case that supports Appellant’s claim. Yet, Appellant 

believes that Commonwealth v. Adams, 504 A.2d 1264, 1269 (Pa. 1986) 

(cited for the proposition that illegality can be raised at any time) supports his 

claim. Even a cursory reading of Adams would have easily disclosed that 

Adams does not involve a collateral proceeding. Notably, Appellant did not 

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3 Appellant’s judgment of sentence became final at the expiration of the time 

to file a direct appeal with the Superior Court, which, in the instant matter 

was March 25, 2020. Appellant had one year from that date to file a timely 

PCRA (i.e., by March 25, 2021). The underlying petition, which was filed on 

July 21, 2022, is over a year late. 

4 Appellant does not contend that the legality of sentence is a challenge 

outside the purview of the PCRA.
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attempt to explain why Adams would apply in PCRA situations or even 

acknowledging the differences in raising a challenge to the legality of the 

sentence on direct appeal as opposed to collateral proceedings.

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Because Appellant failed to plead and prove the timeliness of his July 

21, 2022 petition, we are constrained to conclude that the petition is untimely, 

and not subject to further review.

To the extent the petition can be deemed timely, we agree with the 

lower court’s assessment of Appellant’s claim. As noted, Appellant argues 

that, for sentencing purposes, his sexual assault conviction merged with the 

aggravated indecent assault.6

Merger is governed by 42 Pa.C.S.A. § 9765, which 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 merge for sentencing purposes, the court 

may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765 (Merger of sentences).

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5 Additionally, Appellant alleges that merger error complained herein qualifies 

as a “patent mistake,” Appellant’s Brief at 2, and that it triggered the trial 

court power to correct patent and obvious mistakes. Yet, Appellant fails to 

share with us how he reached such a bold conclusion. To this end, we note 

that analyzing the alleged patent mistake in light, inter alia, of 

Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007), would have been very 

helpful.

6 Appellant does not argue that his indecent assault conviction for groping the 

victim on the dance floor merged with any other conviction.
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The statute’s mandate is clear. It prohibits merger unless two distinct 

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

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

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

(Pa. 2009).

Appellant cannot meet either of the requirements for merger. First, as 

noted by the trial court,7 his crimes did not arise from a single act.

When considering whether there is a single criminal act or multiple 

criminal acts, the question is not whether there was a break in the 

chain of criminal activity. Th[e] issue is whether the actor commits 

multiple criminal acts beyond that which is necessary to establish 

the bare elements of the additional crime, [and if so,] then the 

actor will be guilty of multiple crimes which do not merge for 

sentencing purposes.

Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa. Super. 2012), appeal 

denied, 63 A.3d 776 (Pa. 2013) (internal citations and quotation marks 

omitted).

Here, relative to the issue on appeal, Appellant committed two separate 

assaults. Specifically, Appellant performed nonconsensual oral sex on the 

victim after following her in the bathroom (sexual assault), and subsequently 

digitally penetrated her vagina (aggravated indecent assault). While these 

assaults occurred in rapid sequence, they were separate acts that did not 

merge. See id.

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7 See Trial Court Letter, 1/13/23, at 1-2.
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Appellant also argues that the assaults constituted a single criminal act 

as the conduct involved the same orifice. The claim is meritless. 

As noted by the Commonwealth, “[t]o the contrary, the different 

methods of assault here plainly separate the offenses.” Commonwealth’s Brief 

at 7 (citing Commonwealth v. Dove, 301 A.3d 427, 435 (Pa. Super. 2023)

(the Commonwealth alleged “digital penetration, to support a charge of 

aggravated indecent assault of a child, that were distinct and delineated from 

the conduct supporting the rape of a child charges”), Commonwealth v. 

Loucks, 2023 WL 3167877, at *3 (Pa. Super. May 1, 2023) (“the record 

reflects that Louck’s crimes did not arise from a single criminal act, as Loucks 

digitally penetrated A.M.C.’s vagina prior to inserting his penis into her 

vagina”)). 

Second, sexual assault and aggravated indecent assault do not merge

because the statutory elements of the offenses are different. Digital 

penetration is not an element of sexual assault, but it is an element of 

aggravated indecent assault. See 18 Pa.C.S.A. §§ 3124.1, 3125(a)(1); 

Commonwealth v. Kelley, 801 A.2d 551, 558 (Pa. 2002). Likewise, sexual 

intercourse is an element of sexual assault, but it is not an element of 

aggravated indecent assault. Id.; Dove, 301 A.3d at 433-34. Therefore, 

because Appellant’s convictions arose from different separate criminal acts 

and both offenses contain an element that the other lacks, they do not merge 

for sentencing purposes. Baldwin, supra.
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In conclusion, Appellant is not entitled to relief because the underlying 

petition is untimely. To the extent it can be deemed timely, the 

merger/legality of sentence claim raised therein is meritless. Accordingly, we 

affirm the order of the lower court denying Appellant’s petition.

Order affirmed.

Date: 3/26/2024