J-S43038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARCUS J. DUGAS

Appellant No. 3451 EDA 2014

Appeal from the Judgment of Sentence August 29, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0001797-2013;

CP-45-CR-0001798-2013

BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 09, 2015

Appellant, Marcus J. Dugas, appeals from the judgment of sentence 

entered in the Monroe County Court of Common Pleas, following his jury trial 

convictions for one count each of aggravated assault, rape by forcible 

compulsion, involuntary deviate sexual intercourse (“IDSI”), recklessly 

endangering another person (“REAP”), burglary, unlawful restraint, false 

imprisonment, endangering the welfare of children (“EWOC”), and 

harassment, and two counts each of simple assault and terroristic threats.1 

We affirm. 

The relevant facts and procedural history of this case are as follows. 

____________________________________________

1 18 Pa.C.S.A. §§ 2702(a)(1); 3121(a)(1); 3123(a)(1); 2705; 3502(a)(1); 

2902(a)(1); 2903(a); 4304(a)(1); 2709(a)(1); 2701(a)(1); 2706(a)(1), 

respectively. 
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On June 15, 2013, L.V. reported a domestic disturbance to the police. L.V. 

told the responding officers that Appellant (her boyfriend) had grabbed her 

by the arm and brandished a knife at her after she refused to give him her 

car keys. L.V. reported that Appellant fled after learning the police were on 

the way. The officers told L.V. to call the police if Appellant returned to her 

apartment. L.V. and Appellant ended their relationship after this incident. 

On July 5, 2013, L.V. filed a protection from abuse (“PFA”) petition 

against Appellant, alleging that since the June 15, 2013 incident, Appellant 

had made a copy of L.V.’s house key, entered L.V.’s home without her 

permission, and threatened her. The court granted L.V. a temporary PFA 

order that day and entered a final PFA order on July 15, 2013. 

On July 18, 2013, L.V. awoke at 11:00 p.m. to find Appellant standing 

over her bed, screaming, “Oh, I’m going to kill you.” Appellant lifted L.V. 

from the bed and threw her to the ground. Appellant then began to choke 

L.V. until she lost consciousness. L.V. regained consciousness and 

attempted to flee her bedroom. The couple’s four-year-old son, M.D., heard 

his mother screaming and attempted to run for help. Appellant threatened 

to beat M.D. if he did not return to his room. After M.D. went back to his 

room, Appellant dragged L.V. back into her bedroom and grabbed a knife. 

L.V. was able to gain control of the knife and throw it out of Appellant’s 

reach. L.V. again attempted to flee, but Appellant stopped her and bit L.V. 

on the side of her face. In an effort to stop Appellant’s attack, L.V. told 
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Appellant she wanted to continue their relationship. Appellant then 

performed oral sex on L.V. and had sexual intercourse with L.V. After 

Appellant fell asleep, L.V. fled from the apartment with the couple’s two 

children. Police subsequently arrested Appellant at L.V.’s apartment. 

Procedurally, at docket number CP-45-CR-0001797-2013 (“docket 

1797”), the Commonwealth charged Appellant with simple assault, terroristic 

threats, and harassment, in connection with the incident on June 15, 2013. 

At docket number CP-45-CR-0001798-2013 (“docket 1798”), the 

Commonwealth charged Appellant with aggravated assault, rape by forcible 

compulsion, sexual assault, IDSI, indecent assault, REAP, burglary, 

kidnapping, terroristic threats, unlawful restraint, aggravated indecent 

assault without consent, simple assault, false imprisonment, EWOC, and 

corruption of minors, in connection with the incident on July 18, 2013.2 

On August 19, 2013, the Commonwealth filed a notice of intent to join 

for trial the charges at docket 1797 and docket 1798. While Appellant was 

incarcerated awaiting trial on these charges, Appellant wrote L.V. a letter 

from prison, in violation of the PFA order. Appellant also wrote a letter to his 

mother urging her to convince L.V. to ask the Commonwealth to drop the 

charges against him. Consequently, the Commonwealth filed a third criminal 

____________________________________________

2 The Commonwealth did not charge Appellant in relation to the events after 

June 15, 2013, and before July 5, 2013, which gave rise to entry of the PFA 

order. 
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information against Appellant, at docket number CP-45-CR-0002252-2013 

(“docket 2252”), charging Appellant with two counts of intimidation of a 

witness or victim and one count of solicitation to intimidate a witness or 

victim. On October 25, 2013, the Commonwealth filed a notice of intent to 

join for trial the charges at docket 2252 with the charges at docket 1797 and 

docket 1798. 

On November 4, 2013, Appellant filed an omnibus pre-trial motion to, 

inter alia, sever the charges at all docket numbers. Appellant filed a brief in 

support of his motion on January 21, 2014. On January 23, 2014, the 

Commonwealth filed a brief to support joinder of the charges. The court 

held a hearing on January 28, 2014. On February 12, 2014, the court 

denied Appellant’s motion to sever and granted the Commonwealth’s request 

to join the charges at all three docket numbers for trial.

Appellant proceeded to a jury trial on April 15, 2014.3 The jury 

returned a verdict on April 16, 2014. At docket 1797, the jury convicted 

Appellant of all charges (simple assault, terroristic threats, and harassment). 

At docket 1798, the jury convicted Appellant of aggravated assault, rape by 

forcible compulsion, IDSI, REAP, burglary, terroristic threats, unlawful 

____________________________________________

3

Prior to the close of the Commonwealth’s case-in-chief, the court granted 

Appellant’s motion to dismiss the kidnapping charge at docket 1798. The 

Commonwealth withdrew the charges of aggravated indecent assault without 

consent and corruption of minors at docket 1798; the Commonwealth also 

withdrew two charges at docket 2252. 
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restraint, simple assault, false imprisonment, and EWOC; the jury found 

Appellant not guilty of sexual assault or indecent assault at docket 1798. At 

docket 2252, the jury found Appellant not guilty of one count of intimidation 

of a witness.

On July 31, 2014, the court sentenced Appellant at docket 1797 to 

nine (9) to twenty-four (24) months’ imprisonment for terroristic threats.4 

At docket 1798, the court sentenced Appellant to four and one-half (41⁄2) to 

ten (10) years’ imprisonment for aggravated assault; a consecutive term of 

five and one-half (51⁄2) to ten (10) years’ imprisonment for rape by forcible 

compulsion; a concurrent term of two and one-half (21⁄2) to five (5) years’ 

imprisonment for burglary; a concurrent term of six (6) to twelve (12) 

months’ imprisonment for terroristic threats; a concurrent term of six (6) to 

twelve (12) months’ imprisonment for unlawful restraint; and a concurrent 

term of one (1) to two (2) years’ imprisonment for EWOC.5 The court 

imposed Appellant’s sentence at docket 1797 concurrent to his sentences at 

docket 1798. Thus, the court imposed an aggregate sentence of ten (10) to 

twenty (20) years’ imprisonment. 

On August 1, 2014, the Commonwealth timely filed a post-sentence 

____________________________________________

4 The court determined the remaining convictions at docket 1797 merged for 

sentencing purposes. 

5 The court determined the remaining convictions at docket 1798 merged for 

sentencing purposes. 
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motion to modify Appellant’s sentence, claiming the court’s sentence was too 

lenient given the gravity of the offenses, aggravating circumstances, and the 

danger Appellant posed to the community. On Monday, August 11, 2014, 

Appellant timely filed a post-sentence motion challenging the sufficiency of 

the evidence and the legality of his sentence (claiming his sentences for 

aggravated assault and rape by forcible compulsion should have merged). 

The court held a hearing on the motions on August 29, 2014. During the 

hearing, the Commonwealth pointed out that Appellant’s sentences for 

aggravated assault and rape by forcible compulsion carried minimum 

sentences which were not equal to half of the maximum sentences imposed. 

The court re-sentenced Appellant on that date to five and one-half (51⁄2) to 

eleven (11) years’ imprisonment for aggravated assault and four and onehalf (41⁄2) to nine (9) years’ imprisonment for rape by forcible compulsion. 

The court did not alter the sentences for any of Appellant’s other convictions. 

Thus, Appellant’s aggregate sentence remained ten (10) to twenty (20) 

years’ imprisonment.6 The court said it would take Appellant’s postsentence motion under advisement.

On November 19, 2014, the court denied Appellant’s post-sentence 

motion. Appellant timely filed a notice of appeal on December 12, 2014. On 

____________________________________________

6 The court did not expressly deny the Commonwealth’s request for a stricter 

sentence, but the court declined to impose a harsher aggregate sentence 

than previously imposed.
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December 24, 2014, the court ordered Appellant to file a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and 

Appellant complied.

Appellant raises the following issues for our review: 

WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN 

THE VERDICT OF:

A. RAPE BY FORCIBLE COMPULSION [AND] 

INVOLUNTARY DEVIATE SEXUAL INTERCOURSE[?]

B. AGGRAVATED ASSAULT?

C. ENDANGERING THE WELFARE OF CHILDREN?

WHETHER THE TRIAL COURT ERRED IN DENYING 

[APPELLANT’S] MOTION TO SEVER?

WHETHER THE TRIAL COURT ERRED IN IMPOSING 

CONSECUTIVE SENTENCES FOR AGGRAVATED ASSAULT 

AND RAPE BY FORCIBLE COMPULSION?

(Appellant’s Brief at 6).7 

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

applicable law, and the well-reasoned opinions of the Honorable Stephen M. 

Higgins, we conclude Appellant’s first issue merits no relief. The trial court 

opinions comprehensively discuss and properly dispose of the question 

presented. (See Trial Court Opinion, filed January 30, 2015, at 3; Opinion 

in Support of Order Denying Appellant’s Post-Sentence Motions, filed 

November 19, 2014, at 4-9) (finding: regarding Appellant’s rape by forcible 

____________________________________________

7

For purposes of disposition, we have re-ordered Appellant’s issues. 
J-S43038-15

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compulsion conviction, L.V. testified that on night of July 18, 2013, Appellant 

appeared in her bedroom, standing over her and screaming, “Oh, I’m going 

to kill you”; after several unsuccessful attempts to flee, L.V. pretended she 

wanted to continue her relationship with Appellant so he would stop 

attacking her; at one point, Appellant and L.V.’s four-year-old son heard L.V. 

screaming and woke up crying; Appellant told his son to get back in his 

room or Appellant would whoop him with belt; after child left, Appellant 

performed oral sex on L.V. and then had sexual intercourse with L.V.; L.V. 

testified that she feared Appellant would kill her if she tried to stop him; L.V. 

did not want to have sex with Appellant, but did so only out of fear; 

regarding Appellant’s IDSI conviction, L.V. encountered Appellant in her 

bedroom while she was sleeping; L.V. testified that she had sex with 

Appellant and allowed Appellant to perform oral sex on her solely out of fear 

that Appellant would kill her if she refused his advances; regarding 

Appellant’s aggravated assault conviction, L.V. testified that Appellant 

choked her until she almost passed out; when L.V. regained consciousness, 

her vision was blurry, she could not hear, and L.V. had difficulty standing; 

Appellant bit L.V.’s face when she attempted to leave; L.V. was swollen and 

had broken blood vessels in her face after Appellant’s attack; 

Commonwealth introduced photographs depicting L.V.’s injuries; regarding 

Appellant’s EWOC conviction, Appellant and L.V.’s four-year-old son awoke 

crying after hearing his mother scream during attack; L.V. instructed her son 
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to run and get help, but Appellant threatened to whoop his son with belt if 

he did not return to his room; Appellant also grabbed knife during this 

incident; Commonwealth presented sufficient evidence to sustain Appellant’s 

convictions for rape by forcible compulsion, IDSI, aggravated assault, and 

EWOC). Accordingly, as to Appellant’s first issue, we affirm on the basis of 

the trial court’s opinions. 

In his second issue, Appellant argues the Commonwealth sought 

joinder of his charges at docket 1797 and docket 1798 solely to show 

Appellant’s propensity for violence. Appellant contends the incident on June 

15, 2013, had no probative value relative to the charges stemming from the 

events on July 18, 2013, other than to show Appellant committed bad acts 

by assaulting L.V. on both of those dates. Appellant asserts joinder of the 

charges established only that Appellant is a violent man who assaulted L.V. 

on June 15, 2013, and acted in conformity with that character on July 18, 

2013. Appellant claims the Commonwealth failed to meet its burden to 

demonstrate that the probative value of this “prior bad act” evidence 

outweighed the prejudice to his case. Appellant concludes the court abused 

its discretion by denying his motion to sever the charges at docket 1797 and 

docket 1798, and this Court should reverse and remand for separate trials at 

each docket.8 We disagree. 

____________________________________________

8 Appellant does not challenge the joinder of the charges at docket 2252. 
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Our standard of review of the denial of a motion to sever is as follows: 

“Joinder and severance of separate indictments for trial is a discretionary 

function of the trial court; consequently, the trial court’s decision is subject 

to review for abuse of that discretion.” Commonwealth v. Brookins, 10 

A.3d 1251, 1255 (Pa.Super. 2010), appeal denied, 610 Pa. 625, 22 A.3d 

1033 (2011). 

The traditional justification for permissible joinder of 

offenses or consolidation of indictments appears to be the 

judicial economy which results from a single trial. The 

argument against joinder or consolidation is that where a 

defendant is tried at one trial for several offenses, several 

kinds of prejudice may occur: (1) [t]he defendant may be 

confounded in presenting defenses, as where his defense 

to one charge is inconsistent with his defenses to the 

others; (2) the jury may use the evidence of one of the 

offenses to infer a criminal disposition and on the basis of 

that inference, convict the defendant of the other offenses;

and (3) the jury may cumulate the evidence of the various 

offenses to find guilt when, if the evidence of each offense 

had been considered separately, it would not so find.

Commonwealth v. Janda, 14 A.3d 147, 155 (Pa.Super. 2011) (quoting 

Commonwealth v. Morris, 493 Pa. 164, 171, 425 A.2d 715, 718 (1981)). 

“Thus[,] in arriving at a meaningful standard to guide the trial court in its 

exercise of discretion, and to permit appellate courts to determine whether 

the trial court abused this discretion, we must weigh the possibility of 

prejudice and injustice caused by the consolidation against the consideration 

of judicial economy.” Id. 

Pennsylvania Rule of Criminal Procedure 582 provides, in pertinent 

part:
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Rule 582. Joinder—Trial of Separate Indictments or 

Informations

(A) Standards

(1) Offenses charged in separate indictments or 

informations may be tried together if:

(a) the evidence of each of the offenses would be 

admissible in a separate trial for the other and is 

capable of separation by the jury so that there is no 

danger of confusion; or 

(b) the offenses charged are based on the same 

act or transaction. 

Pa.R.Crim.P. 582(A)(1). Pennsylvania Rule of Criminal Procedure 583 

provides:

Rule 583. Severance of Offenses or Defendants

The court may order separate trials of offenses or 

defendants, or provide other appropriate relief, if it 

appears that any party may be prejudiced by offenses or 

defendants being tried together.

Pa.R.Crim.P. 583. “Under Rule 583, the prejudice the defendant suffers due 

to the joinder must be greater than the general prejudice any defendant 

suffers when the Commonwealth’s evidence links him to a crime.” 

Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa.Super. 2010), appeal 

denied, 607 Pa. 709, 5 A.3d 818 (2010). 

The prejudice of which Rule 583 speaks is, rather, that 

which would occur if the evidence tended to convict the 

appellant only by showing his propensity to commit crimes, 

or because the jury was incapable of separating the 

evidence or could not avoid cumulating the evidence. 

Additionally, the admission of relevant evidence connecting 

a defendant to the crimes charged is a natural 
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consequence of a criminal trial, and it is not grounds for 

severance by itself.

Id. (quoting Commonwealth v. Lauro, 819 A.2d 100, 107 (Pa.Super. 

2003), appeal denied, 574 Pa. 752, 830 A.2d 975 (2003)). 

Where the defendant moves to sever offenses not based 

on the same act or transaction...the court must therefore 

determine: (1) whether the evidence of each of the 

offenses would be admissible in a separate trial for the 

other; (2) whether such evidence is capable of separation 

by the jury so as to avoid danger of confusion; and, if the 

answers to these inquiries are in the affirmative, (3) 

whether the defendant will be unduly prejudiced by the 

consolidation of offenses.

Dozzo, supra at 902 (quoting Commonwealth v. Collins, 550 Pa. 46, 55, 

703 A.2d 418, 422 (1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 

L.Ed.2d 447 (1998)). Thus, a court must first determine whether evidence 

of each of the offenses would be admissible in a separate trial for the other. 

Dozzo, supra. Evidence of other crimes is not admissible solely to show 

the defendant’s bad character or propensity to commit crimes. Id.

Nevertheless, evidence of other crimes is admissible to demonstrate: 

(1) motive; (2) intent; (3) absence of mistake or accident; 

(4) a common scheme, plan or design embracing the 

commission of two or more crimes so related to each other 

that proof of one tends to prove the others; or (5) to 

establish the identity of the person charged with the 

commission of the crime on trial, in other words, where 

there is such a logical connection between the crimes that 

proof of one will naturally tend to show that the accused is 

the person who committed the other.

Janda, supra at 156 (quoting Morris, supra at 175, 425 A.2d at 720). 

“Additionally, evidence of other crimes may be admitted where such 
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evidence is part of the history of the case and forms part of the natural 

development of the facts.” Dozzo, supra at 902 (quoting Collins, supra at 

55, 703 A.2d at 423). See also Commonwealth v. Thomas, 879 A.2d 

246 (Pa.Super. 2005), appeal denied, 605 Pa. 685, 989 A.2d 917 (2010) 

(holding court properly granted Commonwealth’s motion to consolidate 

charges resulting from defendant’s domestic dispute with his girlfriend at 

their home on March 23, 2001, with charges following another domestic 

dispute between defendant and his girlfriend on April 19, 2001; second 

assault occurred on day defendant was released from jail, after victim had 

refused to testify against him at hearing on first assault; evidence of each 

assault would be admissible in prosecution for other, as evidence constitutes 

chain or sequence of events that formed history of case and is part of 

natural development of case; jury was capable of separating evidence into 

different incidents on different days that gave rise to different crimes; 

evidence of defendant’s relationship with victim was admissible to prove 

motive, malice, ill-will, and complete story of their relationship; defendant 

did not suffer undue prejudice as result of consolidation of offenses for trial). 

Instantly, in denying Appellant’s request for severance of the charges 

at each docket, the trial court stated: “Pursuant to prevailing Pennsylvania 

case law, evidence of each offense would be admissible in prosecution for 

the other, the evidence is separable by a jury, and there is no showing of 

undue prejudice to [Appellant]. See [id.]. As such, [Appellant’s] Motion is 
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DENIED.” (Order Denying Appellant’s Motion to Sever, 2/12/14, at 1). We 

see no reason to disrupt the court’s ruling. See Brookins, supra. 

Appellant’s actions showed an escalating pattern of abuse. L.V. refused to 

give Appellant her car keys on June 15, 2013, and Appellant responded by 

grabbing her arm and threatening her with a knife. Appellant fled after L.V. 

called the police. L.V. subsequently obtained a PFA order against Appellant 

after Appellant had made a copy of L.V.’s house key, entered L.V.’s home 

without her permission, and threatened her. Appellant violated the PFA 

order when he broke into L.V.’s home on July 18, 2013, choked her until she 

passed out, attacked and assaulted L.V., and threatened to kill her. 

Appellant’s actions on June 15, 2013 and July 18, 2013, respectively, would 

constitute admissible evidence in each case if the court had conducted 

separate trials, where the crimes from each incident demonstrate a 

sequence of events that formed the history and natural development of the 

case. See Pa.R.Crim.P. 582; Dozzo, supra; Thomas, supra. Additionally, 

evidence of Appellant’s relationship with L.V. was admissible to prove 

Appellant’s motive, malice, and ill-will toward L.V., and to develop the 

complete story of their relationship. See id. Further, the jury found 

Appellant not guilty of indecent assault and sexual assault at docket 1798, 

and acquitted Appellant of intimidation of a witness at docket 2252, 

demonstrating that the jury was capable of separating the charges at all 

three dockets and did not cumulate the evidence. See Pa.R.Crim.P. 582; 
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Dozzo, supra. Thus, Appellant’s second issue warrants no relief. See 

Janda, supra; Dozzo, supra. 

In his third issue, Appellant argues the aggravated assault and rape by 

forcible compulsion convictions were part of the same offense because the 

crime of aggravated assault constituted evidence of forcible compulsion 

necessary to prove the crime of rape. Appellant asserts the court erred by 

imposing consecutive sentences for aggravated assault and rape by forcible 

compulsion because the sentences for these convictions should have 

merged. Appellant concludes this Court must vacate and remand for resentencing.9

 We disagree.

“Whether [a defendant’s] convictions merge for sentencing is a 

question implicating the legality of [his] sentence. Consequently, our 

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

Commonwealth v. Baldwin, 604 Pa. 34, 38, 985 A.2d 830, 833 (2009). 

Section 9765 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.

____________________________________________

9 Notwithstanding the phrasing of Appellant’s third question presented, 

Appellant challenges only the legality of his sentence; he does not claim the 

court abused its discretionary sentencing authority. 
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42 Pa.C.S.A. § 9765. 

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 of the statutory elements of 

one of the offenses are included in the statutory elements 

of the other.

Baldwin, supra at 38-39, 985 A.2d at 833. In other words: “If two crimes 

each require proof of at least one element that the other does not, then the 

crimes are not greater and lesser included offenses, and therefore the 

sentences do not merge.” Thomas, supra at 263. 

The Crimes Code defines the offenses of aggravated assault and rape 

by forcible compulsion, in relevant part, as follows:

§ 2702. Aggravated assault

(a) Offense defined.―A person is guilty of aggravated 

assault if he:

(1) attempts to cause serious bodily injury to 

another, or causes such injury intentionally, knowingly, or 

recklessly under circumstances manifesting extreme 

indifference to the value of human life[.]

18 Pa.C.S.A. § 2702(a)(1). 

§ 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). 

Instantly, aggravated assault under subsection (a)(1) requires the 
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element of causing or attempting to cause serious bodily injury; rape by 

forcible compulsion does not require serious bodily injury or an attempt to 

cause serious bodily injury. Additionally, rape by forcible compulsion 

requires sexual intercourse, which aggravated assault does not. Compare

18 Pa.C.S.A. §§ 2702(a)(1), 3121(a)(1). Because aggravated assault under 

subsection (a)(1) and rape by forcible compulsion involve at least one 

separate element the other does not, the court correctly imposed separate 

sentences for those crimes. See Baldwin, supra; Thomas, supra.

10

 

Therefore, Appellant’s third issue merits no relief. Accordingly, we affirm. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2015

____________________________________________

10 Appellant relies on this Court’s decision in Commonwealth v. Sanders, 

489 A.2d 207 (Pa.Super. 1985) (holding defendant’s convictions for 

aggravated assault and REAP merged for sentencing purposes with 

defendant’s rape by forcible compulsion conviction where crimes arose from 

same criminal incident and evidence of aggravated assault and REAP 

constituted evidence of forcible compulsion necessary to prove rape). 

Nevertheless, this Court decided Sanders before the legislature enacted the 

pure elements-based merger statute under Section 9765. Thus, Sanders is 

not dispositive of the present case. 
the sentence to run concurrent with the sentence imposed at 1798 CR 2013. The 

months in a state correctional facility on the conviction of terroristic threats, with 

Defendant to a term of imprisonment period of nine months to twenty-four 

docket number 1798 CR 2013. At docket 1797 CR 2013, this Court sentenced 

injury, simple assault, false imprisonment and endangering welfare of child on 

another person, burglary, terroristic threats, unlawful restraint/serious bodily 

compulsion, involuntary deviate sexual intercourse, recklessly endangering 

and Defendant was found guilty of aggravated assault, rape by forcible 

of terroristic threats, simple assault, harassment on docket number 1797 CR 2013; 

On April 16, 2013, a Monroe County Jury found Defendant guilty 

trial. 

Pennsylvania Superior Court of various issues following his conviction after jury 

The matter concerns Defendant Marcus Dugas' appeal to the 

STATEMENT PURSUANT TO Pa.R.A.P.1925{a) 

Defendant 

MARCUS DUGAS, 

vs. 

NO. 1797 CR 2013 

1798 CR2013 

COMMONWEALTH OF PENNSYLVANIA 

COURT OF COMMON PLEAS OF MONROE COUNTY 

FORTY-THIRD JUDICIAL DISTRICT 

COMMONWEAL TH OF PENNSYLVANIA 

,, 

Circulated 08/13/2015 11:26 AM
and, therefore, no sentence was imposed. 

imprisonment, we determined that for sentencing purposes these charges merge 

sexual assault, recklessly endangering another person, simple assault and false 

sentences imposed at 1798 CR 2103. As to the charges of involuntary deviate 

imprisonment to period of 12 months to 24 months, to run concurrent to the other 

the endangering welfare of child, we sentenced Defendant to a term of 

months, to run concurrent to the other sentences imposed at 1798 CR 2103. For 

sentenced Defendant to a term of imprisonment to period of 6 months to 12 

at 1798 CR 2103. On the charge of unlawful restraint serious bodily injury, we 

period of 6 months to 12 months, to run concurrent to the other sentences imposed 

of terroristic threats, this Court sentenced Defendant to a term of imprisonment to 

sentences for aggravated assault and rape by forcible compulsion. On the charge 

imprisonment to period of 30 months to 60 months, to run concurrent to the 

assault1• For the burglary charge, we sentenced Defendant to a term of 

of 66 months to 120 months, to run consecutive to the sentence for aggravated 

compulsion, this Court sentenced Defendant to a term of imprisonment to period 

on the conviction of aggravated assault. On the charge of rape by forcible 

imprisonment period of 54 months to 120 months in a state correctional facility 

At docket 1 797 CR 2013, this Court sentenced Defendant to a term of 

and therefore no sentence was imposed. 

charges of simple assault and harassment merged for the purpose of sentencing 

1 n August 29, 2014, we granted the Commonwealth's Post Sentence Motion to Modify Sentence and 

c ected the sentence on aggravated assault to 54 to 108 months and on the rape by forcible compulsion to 

6 to 132 months resulting in an aggregate of 120 to 240 months. 

Circulated 08/13/2015 11:26 AM
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cc: Michael Rakaczewski, Esquire, ADA 

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BY THE COURT: 

be determined. 

Therefore, pursuant to Pa. R.C.P. 1925(a), we find that northing further needs to 

Defendant's issued complained of on appeal have been addressed in our Opinion. 

forth our reasons for denying Defendant's Post-Sentence Motions. All of 

In our November 19, 2014, Opinion and Order we specifically set 

filed an Appeal to the Pennsylvania Superior Court. 

Opinion and Order dated November 19, 2014. On December 12, 2014, Defendant 

Thereafter, Defendant filed Post-Sentence Motions which were denied by 

Circulated 08/13/2015 11:26 AM
July 19, 2013: 

was filed charging Defendant with the following, related to an incident occurring on 

On that same date, a Criminal Information in case docketed at number 1798 CR 2013 

1. Terroristic Threats [Ml], pursuant to 18 Pa. C.S: § 

2706 (a)(l); 

2. Simple Assault [M2], pursuant to 18 Pa. C.S. § 

2701 (a)(l); and 

3. Harassment [S], pursuant to 75 Pa. C.S. § 2709 

(a)(l). 

incident occurring on June 15, 2013: 

1797 CR 2013 was filed charging Defendant with the following, related to an 

follows. On August 21, 2103, a Criminal Information in case docketed at number 

requests this Court grant a new trial. The procedural background in this case is as 

Motions seeking to overturn his jury conviction or, in the alternative, Defendant 

Defendant Marcus Julien Dugas ("Defendant") filed Post-Sentencing 

OPINION 

: POST SENTENCE MOTIONS 

Defendant 

..... ---MARCUS JULIENDUGAS, 

vs . 

1798 CR2013 

1797 CR 2013.' 

COMMONWEALTH OF : NO. 

PENNSYLVANIA 

COURT OF COMMON PLEAS OF MONROE COUNTY 

FORTY·TffiRD JUDICIAL DISTRICT 

COMMONWEAL TH OF PENNSYLVANIA 

~ . 

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2 

1. Intimidating WitnessNictim False/Misleading 

Testimony [Fl], pursuant to 18 Pa. C.S. § 902 (a); 

2. Intimidating Witness/Victim False/Misleading 

Testimony [Fl], pursuant to 18 Pa. C.S. § 4952 

(a)(2); and 

3. Intimidating Witness/Victim-Withhold Testimony 

[Fl], pursuant to 18 Pa. C.S. § 4952 (a)(3). 

occurring on August 2, 2013: 

2013 was filed charging Defendant with the following, related to an incident 

On October 25, 2103, a Criminal Information in case docketed at number 2252 CR 

1. Aggravated Assault [Fl], pursuant to 18 Pa. C.S. § 

2702(a)(l); 

2. Rape Forcible Compulsion [Fl], pursuantto 18 Pa. 

C.S. § 3121 (a)(l); 

3. Sexual Assault [F2], pursuant to 18 Pa. C.S. § 

3124.1; 

4. · Involuntary Deviate Sexual Intercourse Forcible 

Compulsion [Fl], pursuant to 18 Pa. C.S. § 3123 

(a)(l); 

5. Indecent Assault Forcible Compulsion [Fl], 

pursuant to 18 Pa. C.S. § 3ti6 (a)(2); 

6. · RecklesslyEndangering Another Person [M2], 

pursuant to 18 Pa. C.S. § 2705; 

7. Burglary Overnight Accommodation, Persons 

Present [Fl], pursuant to 18 Pa. C.S. § 3502 (a)(l); 

8. Kidnap to Facilitate a Felony [Fl], pursuant to 18 

Pa. C.S. § 2901 (a)(2); 

9. Terroristic Threats With Intent to Terrorize Another 

[Ml], pursuant to 18 Pa. C.S. § 2706 (a)(l); 

I 0. Unlawful Restraint/Serious Bodily Injury [F2], 

pursuant to 18 Pa. C.S. § 2902 (a)(l); 

11. Aggravated Indecent Assault Without Consent [F2], 

pursuant to 18 Pa. C.S. § 3125 (a)(l); 

12. Simple Assault [M2], pursuant to 18 Pa. C.S. § 

2701 (a)(l); 

13. False Imprisonment [M2], pursuant to 18 Pa. C.S. § 

2903 (a); 

14. Endangering Welfare of Children-Parent/Guardian 

[Ml], pursuant to 18 Pa. C.S. § 4304(a)(l); and 

15. Corruption of Minors [S], pursuant to 75 Pa. C.S. § 

630l(a)(l)(i). 

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3 

is Court's original sentence imposed upon Defendant was 66 to 120 months for the Aggravated Assault 

54 to 120 months consecutive on Rape by Forcible Compulsion. 

granting the Commonwealth's Motion, we modified Defendant's sentence merely to 

Motion to Modify Sentence and denied Defendant's Reconsideration of Sentence. In· 

hearing, held on August 29, 2014, we granted the Commonwealth's Post Sentence 

trial. In addition, Defendant also sought reconsideration of his sentence. During our 

("Motion") seeking to arrest the judgment against him, or in the alternative, a new 

imposed on Defendant. On August 11, 2014, Defendant filed Post-Sentence Motion 

filed Post Sentence Motions to Modify Sentence, seeking to increase the sentence 

State Correctional Institution .. Thereafter, on August 1, 2014, the Commonwealth 

Defendant of not less than 120 months nor more than 240 months 1 to be served in a 

On July 31, 2014, this Court imposed a total aggregate sentence on 

charges filed at docket 2252 CR 2013. 

Harassment. Defendant was found not guilty of all other charges, including the 

2013, Defendant was found guilty of Terroristic Threats, Simple Assault and 

Endangering Welfare of Children. On that same date, at docket number 1797 CR 

Restraint/Serious Bodily Injury; Simple Assault; False Imprisonment; and 

· RecklesslyEndangering Another Person; Burglary; Terroristic Threats; Unlawful 

Assault; Rape Forcible Compulsion; Involuntary Deviate Sexual Intercourse; 

number 1798 CR 2013, Defendant was convicted of the following: Aggravated 

A single jury trial was held on April 15, 2014, after which, at docket 

(B)(l) that the above three docketed cases would be joined for the purposes of trial. 

On October 3, 2013, the Commonwealth filed Notice Pursuant to Pa. R. Crim. P. 582 

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A review of the record indicates that the evidence was sufficient to support 

a conviction for Rape by Forcible Compulsion. Pursuant to§ 3121 (a)(l), "[a] 

correct the sentence imposed on the Aggravated Assault from 66 to 120 months to 66 

months to 132 months; and on the Rape by Forcible Compulsion from 60 to 120 

months to 54 to 108 months, for a total aggregate sentence of 120 to 240 months, 

consistent with the original sentence imposed on the Defendant. We are now 

prepared to dispose of Defendant's Motion. 

Defendant seeks an arrest of judgment in his case because he claims that 

the evidence was insufficient to convict him of Rape by Forcible Compulsion, 

Involuntary Deviate Sexual Intercourse, Aggravated Assault and Endangering the 

Welfare of a Child. The test for determining the sufficiency of the evidence is 

whether, viewing the evidence in the light most favorable to the Commonwealth as 

verdict winner, the evidence and all reasonable inferences therefrom support the 

jury's finding of guilt beyond a reasonable doubt. Commonwealth v. Syre, 489 A.2d 

1340, 1342 (Pa. 1985). Our function is to determine whether the evidence is 

sufficient to permit a jury to determine that each and every element of the crimes 

charged has been established beyond a reasonable doubt. Commonwealth v. 

Feathers, 660 A.2d 90 (Pa. Super. 1995) (citation omitted). "The facts and 

circumstances established by the Commonwealth 'need not be absolutely 

incompatible with the Defendant's innocence, but the question of any doubt is for the 

jury unless the evidence is so weak and inconclusive that as a matter of law no 

probability of fact can be drawn from the combined circumstances."' Id, ( citations 

omitted). 

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· did not want to have sex with Defendant; however, she feared that the Defendant 

having sexual intercourse with her, he would kill her. The victim testified that she 

L:.J, ·s testimony shows that she feared that if she tried to stop Defendant from 

evidence in the light most favorable to the Commonwealth, we find that 

engaged in sexual intercourse with L., .. v, "s consent. Viewing the above 

L ,v. involuntarily submitted to sexual intercourse. Defendant argues that he 

Defendant argues that this testimony did not demonstrate that 

he would kill her. [N.T., p. 39] · 

[N.T., p. 39] L.. \JI ' testified that she feared that if she tried to stop Defendant 

crying. [N.T., p. 36] Defendant then told his son to get back in his roo~ or he 

would whoop him with the belt. [N.T., p. 36] After v,.t,.,D. returned to his room, 

Defendant and ,. L~ ..../ · went back into her bedroom when Defendant performed 

oral sex on her. [N. T., p. 39] Defendant proceeded to have sex with I.,,./§ 

young son.. Ni~-- Jr .• age 4;heard his mother screaming and he woke up 

with him so that he would stop hurting her. [N.T., p. 38] At one point, the parties' 

p. 35-38] She then decided to make Defendant believe that she still wanted to be 

the situation,", \_.,~a realized that she was making the situation worse. [N.T., 

-· -·-------- ·-- - - -·- . - - 

screaming "Oh, I'm going to kill you." [N.T., p. 34] After several attempts to flee 

(hereinafter "N.T.")] . L. v~ awoke to find Defendant standing over her 

Defendant appeared in her bedroom. [Notes of Testimony, April 15, 2014, at p. 34 

victim and ex-girlfriend of Defendant, testified that.on the night of July 18, 2013, the 

intercourse with a complainant: (1) [b]y forcible compulsion." . L~·· \, the 

person commits a felony of the first degree when the person engages in sexual 

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sleeping. [N.T., p. 34] 1.- .,v., stated that she was compelled to have sexual 

relations with Defendant because she feared that Defendant would harm or kill her if 

she did not allow it. [N.T., p. 39] The victim testified that she was afraid to do 

anything that looked suspicious to Defendant. [N.T., p. 41] The testimony included 

l- :v' ~ statements that Defendant performed oral sex on her [N. T., p.39] and 

that she was scared to call the cops. [N.T., p. 41] 

Viewing this evidence in the light most favorable to the Commonwealth as 

the verdict winner, we find that there is sufficient evidence to enable the fact-finder 

forth above, L w .../ • encountered Defendant in her bedroom while she was 

would harm or kill her if he learned that she was pretending to continue their 

relationship. (N.T., p. 39] 

We find the evidence is sufficient to demonstrate that Defendant engaged 

in sexual intercourse by forcible compulsion. The jury heard the evidence and 

determined that Defendant was guilty of Rape by Forcible Compulsion. Therefore, 

Defendant's Motion for Arrest of Judgment and Motion for New Trial based on 

insufficient evidence for his conviction of Rape by Forcible Compulsion is denied. 

Defendant also challenges his conviction for IDSI on the basis that the 

evidence was insufficient. "A person commits a felony of the first degree when the 

person engages in deviate sexual intercourse with a complainant: (1) by forcible 

compulsion.'' 18 Pa. C.S.A.§ 3123 (a)(l). "The crime of involuntary deviate sexual 

intercourse occurs when the actor, by physical compulsion or threats thereof, coerces 

the victim to engage in acts of anal and/or oral intercourse." Commonwealth v. 

Snyder, 870 A.2d. 336, 351 (Pa. Super. 2005) (citation omitted). As we have set 

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is more than .sufficient evidence to show that Defendant caused L • '1 ~ serious 

photographs and found Defendant was guilty of Aggravated Assault. We find there 

This testimony is disturbing. The jury heard this testimony, saw the 

Commonwealth introduced photographs containing these injuries. 

popped around her eyes; and her face was swollen. [N.T., p. 40] The 

realized that there were red patches around her eyes; it looked like blood vessels 

p. 35] Defendant bit her face when. f- ~·"· 'attempted to leave the apartment. 

[N.T., p. 37] The morning after the attack, L- "v · looked into the mirror and 

' ears. [N.T., p. 35] L.1 V.· was dizzy and she had difficulty getting up. [N.T., 

stated that she woke up and everything was blurry and she couldn't hear out if her 

into the early morning of July 19, 2013, Defendant had both of his hands around her 

throat and choked her until she almost passed out. [N.T., p. 34-35] L,,../,. 

At trial, L, "1, testified that on the evening of July 18, 2013, and 

under circumstances manifesting extreme indifference to the value of human life." 

bodily injury to another, or causes such injury intentionally, knowingly or recklessly 

insufficient to convict him of Aggravated Assault. 18 Pa. C.S.A §2702 (a)(l), states 

that "(a] person is guilty of aggravated assault if he: (1) attempts to cause serious 

Next, Defendant contends that the evidence submitted at trial was 

conviction under IDSI is denied. 

Judgment and Motion for New Trial based on insufficient evidence for his 

is sufficient to sustain the verdict, therefore, Defendant's Motion for Arrest of 

Defendant to perform oral sex on her or he would kill her. We find that the evidence 

to find every element of IDSI. · stated that she felt forced to allow 

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woke up. [N.T., p. 36] The parties' son was only 4 years old at the time of the 

altercation. (\') ~ D, heard his mother screaming for help and he woke up crying. 

[N.T., p. 36] Liv~ : then told. Yn-· D4 to run and get help, however, 

Defendant told his son to get back in his room or he would whoop him with the belt. 

[N.T., p. 36] M,1), went back to his room and he just cried. [N.T., p. 36] 

tY" 1 D· was so overwhelmed by the incident that he did not want to go to sleep. 

L#·.,/, ~ back ()') • D~ , Jr. hair and he was dragging into her bedroom.. 

during his altercation with L '\J • At one point, Defendant grabbed her by the 

caused serious physical manifestations of the bodily injury which, under the 

circumstances, clearly demonstrates extreme indifference to the value of human life. 

In addition, Defendant bit L. '1 ~ on her face. l-c \I~ had many 

physical injuries which the jury found was sufficient evidence to support 

Defendant's conviction of Aggravated Assault. Accordingly, upon viewing this 

evidence in the light most favorable to the Commonwealth as the verdict winner, we 

find that there is sufficient evidence to support Defendant's conviction of 

Aggravated Assault. 

Finally, Defendant challenges the sufficiency of the evidence for his 

conviction of endangering the welfare of children. "A parent, guardian or other 

person supervising the welfare of a child under 18 years of age, or a person that 

employs or supervises such a person, commits an offense ifhe knowingly endangers 

the welfare of the child by violating a duty of care, protection or support." 18 Pa. 

C.S.A. §4304 (a)(}). The testimony at trial indicated that Defendant was very loud 

bodily injury. Defendant not only choked L. ~ \I. until she was passing out, he 

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inasmuch as the jury acquitted the Defendant of Sexual Assault and Indecent Assault 

by Forcible Compulsion. [Defendant's Motion, ,1(c)] A consistency verdict is not 

required. Commonwealth v. Miller, 613 Pa. 584, 595, 35 A.3d 1206, 1213 (Pa. 

2012). An inconsistent verdict is.allowed "to stand so long as the evidence is 

sufficient to support the conviction." Id, 613 Pa. at 588, 35 A.3d at 1208 (citation 

omitted). The Miller Court recognized that while "the jury's verdict appears to be 

inconsistent, we refuse to inquire into or to speculate upon the nature of the jury's 

deliberations or the rationale behind the jury's decision." Id, 613 Pa. at 596, 35 A.3d 

at 1213. Since we have determined that.the evidence is sufficient to support the 

Defendant also contends that the verdict is flawed and inconsistent 

they were back in the room. [N.T., p. 36] 

Viewing this evidence in the light most favorable to the Commonwealth as 

verdict winner, we find that there is sufficient evidence to enable the fact-finder to 

find every element of the crime of Endangering Welfare of a Child. The jury heard 

evidence that Defendant had a knife and that L ,-.[, threw it to where 

Defendant couldn't reach it. [N.T., p. 36] The physical altercation with· 

L.. "\J ~ was done in from of: hi\ , D .. and Defendant threatened him if he didn't 

go back into his room. [N.T., p. 36) We find this evidence is sufficient to sustain 

Defendant's conviction of the crime of Endangering Welfare of a Child. 

Accordingly, Defendant's Motion for Arrest of Judgment and Motion for New Trial 

based on insufficient evidence is denied. 

[N:T., p. 39) L : V • also stated at one point Defendant grabbed a knife when 

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.conviction, we find no merit in Defendant's argument. In light of the foregoing, we 

enter the following order. 

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-~·. -' 

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STEPHEN M. WGGINS, Judge 

BY THE COURT: 

141{,\ day of November 2014, based upon the 

ORDER 

: POST SENTENCE MOTIONS 

ADA,MR 

Donald Leeth, Esquire 

cc: 

DENIED. 

AND NOW, this 

Defendant. 

MARCUS JULIEN.DUGAS, 

vs. 

COMMONWEALTH OF 

PENNSYLVANIA 

foregoing, it is hereby ORDERED that Defendant's Post-Sentence Motions are 

COURT OF COMMON PLEAS OF MONROE COUNTY 

FORTY-THIRD JUDICIAL DISTRICT 

COMMONWEALTH OF PENNSYLVANIA 

: NO. 1798 CR 2013 

1797 CR2013 

' - Circulated 08/13/2015 11:26 AM
/}/_ .» /:f/(~J/ . ~ JI~ .Dis tr ict: Attorney 

t%a. }JJ, ~ /Jonald Leeth, Esq. 

/~~ 

Susan DeBoer 

Parties: 

AFFIDAVIT OF SERVICE - Opinion 

L Susan Deboer, depose and say that the attached Notice and Order was served 

in the following manner on November 19, 2014 

NO. 1798 CR 2013 

1797 CR 2013 

Commonweal th of PA: 

Vs 

Marcus Julien Dugas 

COURT OF COMMON PLEAS OF MONROE COUNTY 

4Yd JUDICIAL DISTRICT 

COMMONWEALTH OF PENNSYLVANIA 

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