J-S45004-15

*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL ANDREW NOLL,

Appellant No. 2035 MDA 2014

Appeal from the Judgment of Sentence November 4, 2014

In the Court of Common Pleas of Cumberland County

Criminal Division at No(s): CP-21-CR-0002300-2013

BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.

MEMORANDUM BY BOWES, J: FILED JULY 10, 2015

Michael Andrew Noll appeals from the judgment of sentence of twentyfive to fifty years imprisonment that was imposed after he was found guilty 

by a jury of unlawful contact with a minor, corruption of a minor, and two 

counts of indecent assault. We affirm. 

We first outline the trial court’s recitation of the evidence supporting 

the jury’s verdict: 

On August 4, 2013, M.R., a fourteen year old female, 

spent the day swimming at the confluence of the Susquehanna 

River and the Conodoguinet Creek, known as the Point, in Enola, 

Cumberland County, with friends. She was wearing a tank top 

and shorts. Around 4:15 p.m. she was approached by 

Defendant, whom she had seen riding his bike near the river 

earlier in the day. Defendant approached M.R., introduced 

himself, and asked her if she was from the area. M.R. told 

Defendant that she had lived in the area “for like 14 years.” 

Defendant then asked M.R. if she was 14 years old, to which 

M.R. replied, “yeah.” Defendant testified that he was 47 years 

old at the time. Defendant proceeded to ask M.R. if she knew 
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where a nearby trail led. She explained that the trail led to the 

arches of a bridge and then forked, with one prong leading to 

Enola and a park. Defendant asked M.R. if she would walk with 

him as far as the arches. She initially refused, but Defendant 

persisted and she eventually acquiesced. . . . However, M.R. only 

agreed to accompany Defendant half way to the arches, where 

there is a camp site.

When they arrived at the camp site, Defendant sat down, 

wanting to talk with M.R. for a little while. Because she did not 

want to stay long, M.R. told Defendant that she had to be home 

to babysit her sister by 4:30 p.m., even though this was not 

true. After talking for a little while with Defendant, M.R. began 

walking back and Defendant followed. About half way to the 

trailhead, Defendant sat down again and wanted to talk. M.R. 

asked Defendant what time it was, and Defendant, after 

approximately 15 minutes, told her it was 4:50 p.m. M.R. said 

she had to go and that her dad was probably waiting for her. 

Defendant asked her to stay and talk, and she [agreed.] She 

explained at trial that she stayed because she “was probably a 

little bit scared.”

Defendant began to talk about his penis, telling M.R. how 

big it was. He then began to grab and squeeze “all up and down 

her legs.” M.R. was uncertain whether she told Defendant to 

stop or simply pulled away from him. Defendant also touched 

underneath her breasts, the sides of her breasts, and swiped his 

hand across her breasts, all over her clothes, and lifted up her 

shirt and touched her stomach. Defendant asked M.R. to turn 

around, which she did, and then squeezed and bit her butt. 

Defendant then told her to put her hands on his bike seat, again 

she complied, and Defendant put his hands on her hips and 

pressed his hips and penis against her. M.R. told Defendant to 

stop, and he did. 

. . . . 

When M.R. attempted to walk away from Defendant, he 

grabbed her by the arm. She pulled away, and Defendant got 

on his bike, blocked her path, and grabbed her by the arm 

again. M.R. pulled away again and began walking faster. She 

finally made it back to the trailhead where she saw a friend, J.J., 

fishing. J.J. then walked her home.
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M.R. told her father and step-mother what had occurred 

and subsequently spoke with [police, who also had been 

dispatched to the area and located and questioned Defendant, 

who did not cooperate.]

Trial Court Opinion, 2/6/15, at 2-5 (footnotes omitted). 

Based upon this evidence, on January 29, 2014, a jury found Appellant 

guilty of unlawful contact with a minor, corruption of a minor, indecent 

assault (lack of consent), and indecent assault (complainant under the age 

of sixteen and defendant more than four years older). Appellant was 

adjudged a sexually violent predator at a hearing conducted on October 30, 

2014. The matter proceeded to sentencing, where Appellant was sentenced 

as a recidivist to twenty-five to fifty years incarceration; concurrent 

sentences were imposed on each crime. Appellant also was fined $100. 

This appeal followed denial of post-trial motions. Appellant raised these 

positions on appeal: 

I. Whether 42 Pa. C.S. § 9718.2, which requires a 25 to 50 year 

mandatory minimum sentence and which is written in virtually 

the same language-as-other unconstitutional sentencing statutes, 

violates due process and sixth amendment protections as set 

forth in Alleyne and its progeny.

II. Whether the court violated 42 PA. C.S. § 9726 in imposing a 

fine on a 49-year-old man currently serving a 25 to 50 year 

sentence of incarceration failing to consider the length of 

incarceration and concluding the fine was especially adapted to

deterring the crime or aid correction of the defendant.

III. Whether convictions for unlawful contact with a minor, 18 PA. 

C.S. § 6318, and indecent assault under 18 PA. C.S. § 3126(a)(1) 

and (a)(8) merge for sentencing purposes as the statutory 
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elements of those offenses are included in statutory elements of 

the other and arise from a single criminal act.

Appellant’s brief at 7. 

Appellant’s first position is that 42 Pa.C.S. § 9718.2, which outlines 

sentences for sexual offenders, is unconstitutional under Alleyne v. United 

States, 133 S.Ct. 2151 (2013). A “challenge to a sentence premised upon 

Alleyne . . . implicates the legality of the sentence[.]” Commonwealth v. 

Newman, 99 A.3d 86, 90 (Pa.Super. 2014). An issue relating to the legality 

of a sentence is a question of law. Therefore, “our standard of review is de 

novo and our scope of review is plenary.” Commonwealth v. Melius 100 

A.3d 682, 684 (Pa.Super. 2014).

In this case, Appellant was sentenced under § 9718.2(a)(1) (emphasis 

added), which provides:

(1) Any person who is convicted in any court of this 

Commonwealth of an offense set forth in section 9799.14 

(relating to sexual offenses and tier system) shall, if at the 

time of the commission of the current offense the person 

had previously been convicted of an offense set forth in 

section 9799.14 or an equivalent crime under the laws of this 

Commonwealth in effect at the time of the commission of that 

offense or an equivalent crime in another jurisdiction, be 

sentenced to a minimum sentence of at least 25 years of total 

confinement, notwithstanding any other provision of this title or 

other statute to the contrary. Upon such conviction, the court 

shall give the person oral and written notice of the penalties 

under paragraph (2) for a third conviction. Failure to provide 

such notice shall not render the offender ineligible to be 

sentenced under paragraph (2). 
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That section further states that the fact of a prior offense is not an element 

of the crime and its applicability shall be determined at sentencing by the 

sentencing court. 18 Pa.C.S. § 9718.2(c). 

Thus, the statute in question is a recidivist provision. In this case, 

Appellant was sentenced under its provisions due to his prior conviction of a 

sexual offense. Appellant suggests that the statute is constitutionally infirm 

under the decision in Alleyne. Therein, the United States Supreme Court 

held the existence of any fact that is necessary to apply a mandatory 

minimum sentencing provision is an element of the crime rather than a 

sentencing factor and must be presented to the jury and established beyond 

a reasonable doubt. Alleyne applied the Court’s holding in Apprendi v. 

New Jersey, 530 U.S. 466 (2000), which held that the defendant’s 

constitutional right to a jury trial attaches to any fact, other than a prior 

conviction, that increases the maximum sentence. Apprendi thus left intact 

the Court’s prior decision in Almendarez–Torres v. United States, 523 

U.S. 224 (1998), which rejected the proposition that the fact of a prior 

conviction constitutes an element of a crime and held that, instead, whether 

a person has been previously convicted of a crime is a sentencing factor. 

We have specifically ruled that the Alleyne decision does not apply to 

any statute imposing a mandatory minimum based upon the existence of a 

prior conviction. Commonwealth v. Miller, 102 A.3d 988, 995 n. 5 

(Pa.Super. 2014) (holding that there was no Alleyne violation where the 
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increase in the defendant’s minimum sentence was “based on the fact of 

prior convictions[.]”); see also Commonwealth v. Valentine, 101 A.3d 

801, 804 n. 2 (Pa.Super. 2014) (citation omitted; emphasis added) (“The 

Alleyne decision renders those Pennsylvania mandatory minimum 

sentencing statutes that do not pertain to prior convictions 

constitutionally infirm insofar as they permit a judge to automatically 

increase a defendant's sentence based on a preponderance of the evidence 

standard.”); see also Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 

2013) (en banc). In this case, Appellant’s increased sentence was premised 

upon the fact of a prior conviction, and his invocation of Alleyne therefore 

fails. 

Appellant next challenges the court’s imposition of a $100.00 fine 

under 42 Pa.C.S. § 9726(c), which provides, “The court shall not sentence a 

defendant to pay a fine unless it appears of record that: (1) the defendant is 

or will be able to pay the fine and (2) the fine will not prevent the defendant 

from making restitution or reparation to the victim of the crime.” Appellant 

maintains that, in light of the length of his sentence and age, there is no 

record evidence that he will be able to pay the fine in question. 

This position “raises a question of statutory interpretation, which is 

likewise a question of law, triggering the same scope and standard of review 

as that involving the legality of a sentence.” Melius, supra at 684. As we 

have noted, “[I]mposition of a fine is not precluded merely because the 
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defendant cannot pay the fine immediately or because he cannot do so 

without difficulty." Commonwealth v. Thomas, 879 A.2d 246, 264 (Pa. 

Super. 2005). 

In the present case, the fine was miniscule and prison employment will 

be available to Appellant, who is not disabled. Moreover, the court had a 

presentence investigation report. Based upon the contents of that report, it 

“determined that Defendant will be able to pay the $100 fine imposed at 

Count 5, even if not immediately or without difficulty. We note that we did 

not impose any other fines on Defendant and there is no restitution due at 

this docket.” Trial Court Opinion, 2/5/15, at 12. As the court’s 

determination that Appellant had the financial resources to pay the $100 fine 

was premised upon the contents of the pre-sentence report, we affirm. 

Commonwealth v. Boyd, 73 A.3d 1269, 1273 (Pa.Super. 2013) (where 

court had the benefit of a pre-sentence investigation containing information 

about defendant’s educational history, employment history, and existing 

assets, the PSI “provided the sentencing court with an evidentiary basis 

upon which to impose a fine.”). 

Appellant’s final averment is that indecent assault and unlawful contact 

with a minor should have merged for sentencing purposes. The issue of 

whether offenses merge relates to the legality of the sentence. 

Commonwealth v. Jackson, 111 A.3d 1187 (Pa.Super. 2015). Thus, as 

with Appellant’s first two averments, our standard of review is de novo and 
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our scope of review is plenary. Pursuant to 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.” 

In Commonwealth v. Evans, 901 A.2d 528, 536 (Pa.Super. 2006), 

we specifically held that indecent assault and unlawful contact with a minor 

did not merge for sentencing purposes since the offenses contain different 

elements. Additionally, the convictions herein were supported by discrete 

criminal acts. Appellant touched M.R.'s breasts, squeezed and bit her 

buttocks, and pressed his penis against M.R. while standing behind her. We 

therefore reject Appellant’s merger position. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015