J-S14012-17

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

JOSE LUIS FLORES-MEDINA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1091 MDA 2016

Appeal from the Judgment of Sentence June 6, 2016

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0003446-2015

BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 28, 2017

Appellant, Jose Luis Flores-Medina, appeals from the judgment of 

sentence entered in the Lancaster County Court of Common Pleas, following 

his jury trial convictions for rape, unlawful contact with a minor, and 

corruption of minors.1 We affirm Appellant’s convictions but vacate and 

remand for resentencing on all counts. 

In its opinion, the trial court fully and correctly set forth the relevant 

facts and procedural history of this case. Therefore, we have no reason to 

restate them. 

Appellant raises two issues for our review:

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1 18 Pa.C.S.A. §§ 3121(a)(1); 6318(a)(1); 6301(a)(1)(ii), respectively. 
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WAS THE EVIDENCE PRESENTED BY THE COMMONWEALTH 

INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT 

THAT [APPELLANT] COMMITTED THE OFFENSE OF 

UNLAWFUL CONTACT WITH A MINOR, WHERE THE 

EVIDENCE DID NOT ESTABLISH THAT [APPELLANT] WAS 

INTENTIONALLY IN CONTACT WITH [VICTIM] FOR THE 

PURPOSE OF ENGAGING IN AN ACTIVITY PROHIBITED 

UNDER CHAPTER 31?

WERE THE EVIDENCE PRESENTED BY THE 

COMMONWEALTH AND THE TRIAL COURT’S CHARGE TO 

THE JURY INSUFFICIENT TO SUSTAIN [APPELLANT’S] 

CONVICTION OF CORRUPTION OF MINORS, GRADED AS A 

THIRD DEGREE FELONY, WHERE THERE WAS NO 

EVIDENCE [APPELLANT] CORRUPTED THE MORALS OF A 

MINOR BY ANY COURSE IN VIOLATION OF CHAPTER 31, 

AND THE JURY WAS NOT INSTRUCTED THAT IT MUST 

FIND THE “COURSE OF CONDUCT” ELEMENT NECESSARY 

TO SUSTAIN THE CONVICTION AS A THIRD DEGREE 

FELONY?

(Appellant’s Brief at 5). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Donald R. 

Totaro, we conclude Appellant’s first issue merits no relief. As to Appellant’s 

second issue, we agree with Appellant that relief is due. The trial court 

opinion comprehensively discusses and properly disposes of the questions 

presented. (See Trial Court Opinion, filed August 30, 2016, at 2-9) (finding: 

(1) Victim testified that on April 11, 2015, she was sleeping at her aunt’s 

house on air mattress in bedroom occupied by Appellant and Victim’s aunt; 

Appellant placed his hand over Victim’s mouth and inserted his penis inside 

her vagina; on following morning, Victim reported incident to her mother 

and grandmother; Victim went to hospital for medical examination; Victim 
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reported incident to nurse examiner during examination; examination of 

Victim revealed tenderness and injuries, laceration of skin at bottom of 

vagina, and abrasion between Victim’s vaginal wall and hymen, indicating 

forceful intercourse; Victim made similar report of incident to program 

supervisor at Lancaster County Children’s Alliance; Appellant provided buccal 

swab to police, which was later sent for DNA analysis; sperm found on 

Victim from sample collected at hospital matched Appellant’s DNA; Victim 

was 17 years old at time of incident, and Appellant was 38 years old; 

testimony established that Appellant put his hand over Victim’s mouth to 

prevent her from speaking while he committed rape; from this evidence, 

jury could reasonably infer Appellant engaged in type of contact and 

communication, either verbal or physical, necessary to sustain Appellant’s 

conviction for unlawful contact with minor; (2) Appellant assaulted Victim on 

one occasion; corruption of minors statute at 18 Pa.C.S.A. § 6301(a)(1)(ii) 

requires “course of conduct” of sexual offenses which corrupts or tends to 

corrupt morals of minor; evidence was insufficient to sustain corruption of 

minors conviction graded as third-degree felony; but, evidence was sufficient 

to support conviction for corruption of minors graded as first-degree 

misdemeanor under Section 6301(a)(1)(i)).2 Nevertheless, for the following 

reasons, we disagree with the trial court to the extent it states resentencing 

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2 The Commonwealth agrees the evidence was insufficient to sustain a 

conviction for corruption of minors graded as a third-degree felony.
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is unnecessary because the corruption of minors’ conviction merged with the 

rape by forcible compulsion conviction for sentencing purposes. 

Whether crimes merge for sentencing purposes implicates the legality 

of the sentence, which this Court can raise sua sponte. Commonwealth v. 

Tanner, 61 A.3d 1043, 1046 (Pa.Super. 2013). Therefore, our standard of 

review is de novo and our scope of review is plenary. Id. Merger of 

sentences is governed generally by Section 9765 of the Sentencing Code, 

which provides:

§ 9765. Merger of sentences

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. “[T]he language of the legislature is clear. The only 

way two crimes merge for sentencing is if all elements of the lesser offense 

are included within the greater offense.” Commonwealth v. Coppedge, 

984 A.2d 562, 564 (Pa.Super. 2009) (stating cases decided before effective 

date of Section 9765 are not instructive in merger analysis; relevant 

question in merger analysis now is whether person can commit one crime 

without also committing other crime, regardless of whether facts of 

particular case comprise both crimes; if elements of crimes differ, i.e., if one 

offense can be committed without committing other offense, crimes do not 

merge under legislative mandate of Section 9765) (emphasis in original). 
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The Crimes Code defines the offenses of rape and corruption of 

minors, in relevant part, as follows:

§ 3121. Rape

(a) Offense defined.—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.A. § 3121(a)(1). 

§ 6301. Corruption of minors

(a) Offense defined.—

(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.A. § 6301(a)(1)(i), (ii). 

Instantly, the court merged for sentencing purposes Appellant’s 

conviction for corruption of minors graded as a third-degree felony with his 
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rape by forcible compulsion conviction graded as a first-degree felony. A 

conviction for rape by forcible compulsion requires a person to engage in 

sexual intercourse with a complainant by forcible compulsion. See 18 

Pa.C.S.A. § 3121(a)(1). A conviction for corruption of minors as a thirddegree felony requires a person of 18 years and upwards to corrupt or 

tend to corrupt the morals of any minor less than 18 years of age by any 

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

or aid, abet, entice or encourage a minor in the commission of an offense 

under Chapter 31. See 18 Pa.C.S.A. § 6301(a)(1)(ii). The plain language of 

the respective statutes demonstrates sentencing merger of these crimes is 

inappropriate, where corruption of minors under this subsection has both an 

age as well as a “course of conduct” requirement; rape does not. Therefore, 

all of the statutory elements of corruption of minors under Section 

6301(a)(1)(ii) are not included in the statutory elements of rape by forcible 

compulsion. See 42 Pa.C.S.A. § 9765. In other words, a person can 

commit rape by forcible compulsion without also committing corruption of 

minors under Section 6301(a)(1)(ii) and vice versa. See Coppedge, 

supra. Thus, the court erred when it merged the corruption of minors’ 

conviction graded as a third-degree felony with Appellant’s conviction for 

rape by forcible compulsion.

A conviction for corruption of minors as a first-degree misdemeanor 

requires a person of 18 years and upwards, by any act, to corrupt or tend 
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to corrupt the morals of any minor less than 18 years of age; or aid, 

abet, entice or encourage a minor in the commission of any crime; or 

knowingly assist or encourage a minor less than 18 years of age in 

violating his or her parole or any order of court. See 18 Pa.C.S.A. § 

6301(a)(1)(i). Corruption of minors under this subsection has an age 

requirement; rape does not. Therefore, all of the statutory elements of 

corruption of minors under Section 6301(a)(1)(i) are not included in the 

statutory elements of rape by forcible compulsion. See 42 Pa.C.S.A. § 

9765. The fact that the rape conviction in this case involved a victim of less 

than 18 years of age is irrelevant to the merger analysis because, in general, 

a person can commit rape by forcible compulsion without also committing 

corruption of minors under Section 6301(a)(1)(i), and vice versa. See 

Coppedge, supra. Thus, Appellant’s corruption of minors’ conviction, even

when graded as a first-degree misdemeanor, similarly will not merge with 

Appellant’s conviction for rape by forcible compulsion. 

Based on the foregoing, we vacate the entire judgment of sentence 

and remand for resentencing on all counts. See Commonwealth v. Hicks, 

151 A.3d 216 (Pa.Super. 2016) (explaining where trial court errs in its 

sentence in multi-count case, we will vacate entire sentence to allow trial 

court to re-structure its sentencing plan). Upon remand, the court must 

regrade Appellant’s conviction for corruption of minors as a first-degree 

misdemeanor, because the Commonwealth did not prove the “course of 
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conduct” required to grade the offense as a third-degree felony. Further, 

when properly graded as a first-degree misdemeanor, Appellant’s corruption 

of minors’ conviction shall not merge for resentencing purposes with his 

conviction for rape by forcible compulsion. Accordingly, we affirm 

Appellant’s convictions but vacate the judgment of sentence and remand for 

resentencing on all counts. 

Judgment of sentence vacated; case remanded with instructions. 

Jurisdiction is relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/28/2017