J. S27032/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ANTHONY PARKER, :

:

Appellant : No. 438 EDA 2014

Appeal from the Judgment of Sentence January 10, 2014

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0006538-2011

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 14, 2015

Appellant, Anthony Parker, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas following a jury 

trial and convictions for rape of a child,1involuntary deviate sexual 

intercourse with a child,2aggravated indecent assault of a person less than 

thirteen years of age,3 unlawful contact with a minor,4endangering the 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3121(c).

2 18 Pa.C.S. § 3123(b).

3 18 Pa.C.S. § 3125(a)(7).

4 18 Pa.C.S. § 6318(a)(1).
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welfare of children,5indecent assault of a person less than thirteen years of 

age,6and corruption of minors.7 Appellant contends that it was error for the 

court to admit into evidence a letter that was previously excluded at his first 

trial, which had resulted in a mistrial. He further contends the letter was not 

relevant and, regardless, was more prejudicial than probative. Appellant 

also claims the court failed to instruct the jury on a prompt complaint and 

improperly instructed the jury on flight. Finally, he asserts the court failed 

to merge his sentences for aggravated indecent assault and indecent 

assault. We hold Appellant is due no relief. 

We adopt the facts set forth in the trial court’s opinion. See Trial Ct. 

Op., 9/5/14, at 1-4. As part of the victim’s recovery and counseling process, 

she was asked to write a letter to Appellant8that described her feelings and 

what she would say to him. N.T. Trial, 9/25/13, at 66. At Appellant’s first 

trial, the court excluded that letter. Because of a hung jury, that trial ended 

in a mistrial, and Appellant was tried again. 

At the end of voir dire for the second trial, Appellant orally moved to 

exclude the letter. N.T. Trial, 9/24/13, at 207. The court held Appellant’s 

 

5 18 Pa.C.S. § 4304(a)(1).

6 18 Pa.C.S. § 3126(a)(7).

7 18 Pa.C.S. § 6301(a)(1)(i).

8 The letter was never intended to be read by Appellant. N.T. Trial, 9/25/13, 

at 66.
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motion under advisement. Id. at 210. Subsequently, the Commonwealth 

asked the victim to read the letter into the record without objection by 

Appellant. N.T. Trial, 9/25/13, at 65-68. At the close of the 

Commonwealth’s case, the Commonwealth moved for the admission of all its 

exhibits and Appellant affirmatively indicated he had no objection. N.T. 

Trial, 9/27/13, at 23-24.

The jury found him guilty of the above charges. On January 10, 2014, 

the court sentenced Appellant to an aggregate sentence of twenty-six to 

fifty-two years’ imprisonment followed by a consecutive sentence of 

seventeen years’ probation. The aggregate sentence included a consecutive 

sentence of four to eight years’ imprisonment for aggravated indecent 

assault of a person less than thirteen years of age and a consecutive 

sentence of five years’ probation for indecent assault of a person less than 

thirteen years of age.

On January 16, 2014, Appellant filed a post-sentence motion, which 

only challenged his aggregate sentence as excessive. The court denied 

Appellant’s motion on January 28, 2014, and Appellant timely appealed on 

February 5, 2014. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) 

statement.

Appellant raises the following issues:

Did not the lower court err in permitting the introduction of 

the complainant’s . . . letter to [A]ppellant in its case in 

chief because (1) the law of the case doctrine prohibited 

the lower court from reconsidering [the decision of the 
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judge presiding over Appellant’s first trial] grant of 

[A]ppellant’s motion in limine precluding the letter, and (2) 

the letter does not independently satisfy Pennsylvania Rule 

of Evidence 803(3), and even if it were admissible, it is 

irrelevant?

Did not the lower court err in denying [A]ppellant’s request 

for a prompt complaint instruction indicating the lack of a 

prompt report even though the disclosure occurred at least 

some five to six years after the alleged incident and 

[A]ppellant was no longer living in the home?

Did not the lower court err by giving a flight instruction to 

the jury where the evidence did not reasonable suggest 

that [A]ppellant knowingly evaded the police or knew the 

police were looking for him?

Did not the lower court impose an illegal sentence by 

failing to merge indecent assault of a person less than 13, 

18 Pa.C.S. § 3126(a)(7), with aggravated indecent assault 

of a person less than 13, 18 Pa.C.S. § 3125(a)(7)?

Appellant’s Brief at 4.

In support of his first issue, Appellant contends that the law-of-thecase doctrine barred the judge in the second trial from reversing the decision 

of the judge in the first trial to preclude admission of the victim’s therapy 

letter. He also maintains that the letter does not satisfy any one of the 

exceptions to the hearsay rule. Regardless, Appellant insists the letter is 

irrelevant. We hold Appellant failed to preserve this issue for appellate 

review. 

“The admission of evidence is a matter vested within the sound 

discretion of the trial court, and such a decision shall be reversed only upon 

a showing that the trial court abused its discretion.” Commonwealth v. 
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Reid, 811 A.2d 530, 550 (Pa. 2002) (citation omitted). Failure to lodge a 

timely objection results in waiver of the claim on appeal. Commonwealth 

v. Murray, 83 A.3d 137, 155 (Pa. 2013). Instantly, Appellant failed to 

object to the introduction of the victim’s letter at the second trial; indeed, 

Appellant indicated he had no objection to the admission of the letter. See 

N.T. Trial, 9/25/13, at 65-68; N.T. Trial, 9/27/13, at 23-24. Thus, because 

Appellant waived the issue for appellate review, we discern no basis for 

relief. See Murray, 83 A.3d at 155. Regardless, “the grant of a new trial 

‘wipes the slate clean,’ so that a previous court’s ruling on the admissibility 

of evidence generally does not bind a new court upon retrial . . . .” See 

Commonwealth v. Paddy, 800 A.2d 294, 311 (Pa. 2002) (citations 

omitted).

We summarize Appellant’s arguments in support of his second and 

third issues. Appellant alleges the court erred by refusing to instruct the 

jury regarding the absence of a prompt complaint by the victim. He notes 

the victim, then five years old, waited six years to report the assault. 

Appellant maintains the victim understood his actions were wrong well 

before she reported it. Appellant also contends the court mistakenly 

instructed the jury on flight. He reasons the Commonwealth failed to 

adduce sufficient evidence to justify the flight instruction. Appellant, we 

hold, is due no relief for either issue. 

In reviewing a challenge to the trial court’s refusal to give 

a specific jury instruction, it is the function of this Court to 
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determine whether the record supports the trial court’s 

decision. In examining the propriety of the instructions a 

trial court presents to a jury, our scope of review is to 

determine whether the trial court committed a clear abuse 

of discretion or an error of law which controlled the 

outcome of the case. A jury charge will be deemed 

erroneous only if the charge as a whole is inadequate, not 

clear or has a tendency to mislead or confuse, rather than 

clarify, a material issue. A charge is considered adequate 

unless the jury was palpably misled by what the trial judge 

said or there is an omission which is tantamount to 

fundamental error. Consequently, the trial court has wide 

discretion in fashioning jury instructions. The trial court is 

not required to give every charge that is requested by the 

parties and its refusal to give a requested charge does not 

require reversal unless the [a]ppellant was prejudiced by 

that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013) 

(citation omitted); accord Commonwealth v. Hawkins, 701 A.2d 492, 

511 (Pa. 1997). “The propriety of a prompt complaint instruction is 

determined on a case-by-case basis pursuant to a subjective standard based 

upon the age and condition of the victim.” Sandusky, 77 A.3d at 667 

(citation omitted). 

In Sandusky, the defendant alleged the court erred by not giving the 

prompt complaint instruction. Id. The trial court refused to give the 

instruction based on reasoning that disregarded the case-by-case standard 

set forth above. Id. at 668. Thus, the Superior Court ascertained whether 

the trial court’s error was harmless. Id. The Sandusky Court held that 

because the trial court’s credibility instruction mirrored the Pennsylvania 

Suggested Standard Criminal Jury Instruction on witness credibility and the 
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defendant cross-examined the victims regarding their delay in reporting the 

criminal acts, no prejudice resulted. Id. at 669. 

In Commonwealth v. Powers, 577 A.2d 194 (Pa. Super. 1990), the 

defendant alleged “the trial court erred in refusing to instruct the jury 

specifically that the absence of a prompt complaint by the victim must be 

considered in determining her credibility.” Id. at 197. The Powers Court 

refused to find an abuse of discretion, reasoning, “[t]he charge given here 

adequately covered the general issue of credibility. To have given the 

charge requested would have given undue weight to a single factor in the 

jury’s complex credibility analysis.” Id. With respect to a flight instruction, 

this Court held there was no abuse of discretion when the “trial court 

explained that a motive other than consciousness of guilt may prompt 

flight.” Commonwealth v. Garcia, 847 A.2d 67, 73 (Pa. Super. 2004).

After careful consideration of the parties’ briefs, the record, and the 

decision by the Honorable Gwendolyn N. Bright, we affirm these two issues 

on the basis of the trial court’s decision. See Trial Ct. Op. at 4-6 (holding 

facts did not justify issuance of prompt complaint instruction and court 

instructed the jury that Appellant claimed he was unaware police were 

looking for him and flight does not necessarily establish consciousness of 

guilt); see also Garcia, 847 A.2d at 73. Even assuming the trial court 

erred by failing to give a prompt complaint instruction, the court—similar to 

the trial court in Sandusky—instructed the jury generally on credibility. 
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See N.T. Trial, 9/30/13, at 105-08; Sandusky, 77 A.3d at 669. Thus, any 

error was also harmless. See Sandusky, 77 A.3d at 669.

Lastly, Appellant contends the trial court imposed an illegal sentence. 

He reasons that a conviction of indecent assault of a complainant under the 

age of thirteen merges into the offense of aggravated indecent assault of a 

complainant under the age of thirteen. Appellant acknowledges that in 

Commonwealth v. Allen, 856 A.2d 1251 (Pa. Super. 2004), this Court held 

the offenses do not merge, but maintains Allen is wrong. Appellant’s Brief 

at 39. Appellant acknowledges that a panel of this Court cannot overrule 

Allen, but asserts that after Allen, the aggravated indecent assault statute 

was amended to include divisible offenses:

The United States Supreme Court has recognized that 

where a statute involves “divisible offenses”—the kind 

which “sets out one or more elements of the offense in the 

alternative” it is proper to examine which alternative is at 

issue. See United States v. Descamps, ___ U.S. ___, 

133 S. Ct. 2276, 2281 (2013). The current indecent 

assault provision is such a statute.

Id. at 41-42. Appellant thus reasons this Court could hold merger was 

warranted without contradicting Allen. We hold Appellant is not entitled to 

relief. 

The issue of merger is a question of law, and therefore “our scope of 

review is plenary and our standard of review is de novo.” Commonwealth 

v. Williams, 920 A.2d 887, 888-89 (Pa. Super. 2007) (citation omitted). In 

Pennsylvania, 
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[n]o 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. § 9765. “The doctrine of merger is a rule of statutory 

construction designed to determine whether the legislature intended for the 

punishment of one offense to encompass that for another offense arising 

from the same criminal act or transaction.” Commonwealth v. Evans, 901 

A.2d 528, 536 (Pa. Super. 2006) (citation omitted). 

Aggravated indecent assault of a person less than thirteen years of 

age is defined as follows:

(a) Offenses defined.—Except as provided in sections 

3121 (relating to rape), 3122.1 (relating to statutory 

sexual assault), 3123 (relating to involuntary deviate 

sexual intercourse) and 3124.1 (relating to sexual 

assault), a person who 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, hygienic or law enforcement procedures commits 

aggravated indecent assault if:

* * *

(7) the complainant is less than 13 years of age . . . .

18 Pa.C.S. § 3125(a)(7). Indecent assault of a person less than thirteen 

years of age is defined as follows:

(a) Offense defined.—A person is guilty of indecent 

assault 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 
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or feces for the purpose of arousing sexual desire in the 

person or the complainant and:

* * *

(7) the complainant is less than 13 years of age . . . .

18 Pa.C.S. § 3126(a)(7). At the time Allen was decided, Section 3126(a) 

defined indecent assault as follows:

(a) Offense defined.—A person who has indecent contact 

with the complainant or causes the complainant to have 

indecent contact with the person is guilty of indecent 

assault if 

* * *

(7) the complainant is less than 13 years of age . . . .

18 Pa.C.S. § 3126(a)(7) (1995) (amended 2005). “Indecent contact” is 

defined as “[a]ny touching of the sexual or other intimate parts of the 

person for the purpose of arousing or gratifying sexual desire, in any 

person.” 18 Pa.C.S. § 3101.

In Allen, our Court examined whether “whether the offenses of 

indecent assault and aggravated indecent assault are greater and lesserincluded offenses.” Allen, 856 A.2d at 1253. The Allen Court held they did 

not merge, reasoning as follows:

Aggravated indecent assault includes an element that is 

not required to commit indecent assault. That element is 

penetration of the genitals or anus of the victim. Indecent 

assault includes an element that is not required to commit 

aggravated indecent assault. That element is proof of 

arousing or gratifying sexual desire. [See 18 Pa.C.S. § 

3101.]
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Since each crime has an additional element not included 

in the other crime, neither is a lesser-included offense of 

the other.

Id. at 1254. 

We are bound by Allen, and therefore discern no basis for granting 

Appellant relief. Appellant, however, suggests that the inclusion of divisible 

offenses in the present indecent assault statute, i.e., “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,” see 

18 Pa.C.S. § 3126(a), requires this Court to identify under which clause 

Appellant was convicted. We need not engage in that identification because 

both clauses incorporate the element of arousing sexual desire—an element 

absent from the aggravated indecent assault statute. Compare id., with

18 Pa.C.S. § 3125(a). Accordingly, having discerned no error of law, see 

Williams, 920 A.2d at 888-89, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015
I ,1 .. 

't ·: 

years, she resided on Guyer Street, Philadelphia, PA with her mother, Jawanna Johnson, her 

Complainant, SC, testified that in 2004-2005, when then between the ages of five and seven 

FACTS 

Appellant; and that the Court committed error in the imposition of sentence. 

regarding flight; that the Court erred in permitting the introduction of the complainant's letter to 

request for a prompt complaint instruction to the jury; that the Court erred in instructing the jury 

Complained Of On Appeal. Appellant responded complaining that the Court erred in denying his 

Pursuant to Pa.R.A.P. 1925(b) Appellant was instructed to file a Statement of Errors 

they were denied. This timely appeal followed on February 15, 2014. 

of imprisonment. Post Sentence Motions were filed on January 16, 2014 and on January 28, 2014 

was found guilty of those crimes. On January 10, 2014 Appellant was sentenced to a lengthy term 

Minor, and related offenses and on September 30, 2013 following a jury trial before this Court he 

Deviate Sexual Intercourse of a Child, Aggravated Indecent Assault, Unlawful Contact with a 

On May 11, 2011 Appellant was arrested and charged with Rape of a Child, Involuntary 

BRIGHT, J. 

OPJNION 

ANTHONY PARKER 

SEP O 5 ·2014 

Criminal Appeals Unit 

First Judicia\ District of PA 

0UPERIOR COURT OF PENNSYLV ANJA 

438 EDA 2014 

1111111111111111111111111 

7195528561 

v. 

CP-5 l-CR-0006538-2011 

FILED 

CP-51-CR-0006538-2011Com _ m v. Pa1ka. Anthony 

OpinlO<l 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS 

PHILADELPHIA COUNTY 

CRIMINAL TRIAL DIVISION 

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2 

1N.T. refers to the Notes of Testimony at the jury trial before the Honorable Gwendolyn N. Bright 

on September 25-30, 2013. The specific date to which reference is made follows the notation 

"N.T.". 

towards her, their relationship ended, and Appellant moved out of the house. Id. @ 126. 

Id. @ 125-126. Johnson stated that eventually Appellant became physically and mentally abusive 

relationship with Appellant. Appellant moved into Johnson's home and later they had a son, AP. 

Jowanna Johnson, Complainants' mother, testified that between 2004 and 2005 she had a 

Appellant threatened that if she told anyone he would hurt her family. Id. @ 54. 

Id. @51-53, 101-103. Complainant stated that she did not report these incidents to anyone because 

that occasion, Appellant was on the floor with her and that he placed his penis inside her vagina. 

down her underwear and began touching the inside of her vagina. Id. @ 50. She testified that on 

occasion when she was sitting on the living room floor watching television when Appellant pulled 

pulled out his penis, and made her put her mouth on it. Id. @49. Finally, SC described an 

her on the living room couch watching television. She stated that Appellant unzipped his pants, 

homework. Id. @ 46-48. SC went on to testify about an incident where Appellant was sitting with 

Complainant's leg while he sat with her in the family dining room assisting Complainant with 

did not comply with his request. She described an incident where Appellant began rubbing 

go to bed nude, saying the next morning that he checked during the night and was angry because she 

house when she was nude, which her mother strictly prohibited, and another when he asked her to 

her private parts. On one occasion Complainant stated that Appellant entered the bathroom of the 

incidents during which Appellant sexually assaulted her and inappropriately touched her body and 

brother's natural father. N.T.1 9/25/2013 @42-43. In her testimony SC described multiple 

younger brother, and Appellant. Appellant was her mother's boyfriend at the time and is her 

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3 

Johnson testified further that in early February 2011 she detected that something was 

seriously disturbing Complainant and Johnson asked a trusted friend and neighbor, Aisha Taylor, to 

speak with SC to ascertain the problem. Id. @ 110-112. Taylor spoke with Complainant 

whereupon Complainant reported that when she was younger Appellant was molesting her. Id. @ 

113-114. Taylor immediately contacted Johnson and insisted that she have a talk with Complainant 

and insisted that Complainant's natural father, Himmiea Cooper, be present. Id.@ 116, 129, N.T. 

9/26/2013 @ 9-11. The next day Complainant told her mother and father that Appellant was 

sexually assaulting her. N.T. 9/25/2013@ 130, N.T. 9/26/2013@ 11. Cooper testified that 

Complainant explained that she did not report the incidents to them earlier because Appellant 

threatened to kill them and Cooper's father. N.T. 9/26/2013@ 12. 

After finding out about these incidents of sexual assault, Cooper and Johnson searched for 

Appellant to no avail. Id. Cooper testified that he made inquires and went to multiple locations, 

spoke with members of Appellant's family and former girlfriends. He searched for almost a month. 

Id. Cooper admitted that he was searching for Appellant to do him harm for what he had done to 

his daughter. Id. @ 13-14. When he was unable to locate Appellant, however, he and 

Complainant's mother called police. Philadelphia Police Officer Edward Lichtenhahn, assigned to 

the Special Victims Unit, testified that an arrest warrant was issued for Appellant on April 12, 2011. 

Lichtenhahn testified that officers went to approximately 12 different addresses for Appellant and 

were initially unsuccessful. Id.@ 66-67. Lichtenhahn spoke with several persons and left cards 

with them and at the addresses he visited which contained information for Appellant to contact 

police. Appellant was finally found and arrested on May 11, 2011. Id. @ 67. 

Complainant was interviewed at the Philadelphia Children's Alliance and examined by the 

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The propriety of a prompt complaint instruction is determined on a case-by-case basis pursuant 

to a subjective standard based upon the age and condition of the victim. For example, where the 

victim of a sexual assault is a minor who may not have appreciated the offensive nature of the 

conduct, the lack of a prompt complaint would not necessarily justify an inference of fabrication. 

4 

The prompt complaint instruction is based upon a belief that a victim of a violent assault would 

reveal the assault occurred at the first available opportunity; the purpose of the instruction is to 

allow a jury to call into question a complainant's credibility when he or she did not complain at 

the first available opportunity. 

"In reviewing a challenge to the trial court's refusal to give a specific jury instruction, it is the 

function of this Court to determine whether the record supports the trial court's decision. In 

examining the propriety of the instructions a trial court presents to a jury, our scope of review is 

to determine whether the trial court committed a clear abuse of discretion or an error of law 

which controlled the outcome of the case. A jury charge will be deemed erroneous only if the 

charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than 

clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by 

what the trial judge said or there is an omission which is tantamount to fundamental error. 

Consequently, the trial court has wide discretion in fashioning jury instructions. The trial court 

is not required to give every charge that is requested by the parties and its refusal to give a 

requested charge does not require reversal unless the Appellant was prejudiced by that refusal. 

Pennsylvania elucidated as follows: 

In Commonwealth v. Thomas, 904 A.2d 964, 2006 PA Super 192, the Superior Court of 

complainant instruction to the jury. This claim is without merit. 

Appellant first complains that the Court erred in denying his request for a prompt 

DISCUSSION 

changes taken place would have masked any signs of injury. Id.@ 19. 

would have headed. She added that SC had gone through puberty since the incidents and that the 

That the abuse in this case was reported long after it stopped and any injury there might have been 

was normal for a young girl of Complainants age and maturity. Id.@ 12-14. She explained: 

that she found that Complainant was normal with no definitive signs of penetrative trauma, which 

Maria McColgan. Dr. McColgan testified that she examined Complainant on October 16, 2012 and 

Medical Director of the Child Protection Program at Saint Christopher's Hospital for Children, Dr. 

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"There was evidence including the testimony of police officer Edward Lichtenhahn that may 

have tended to show that the defendant may have hid from police. That is that when the 

police went to all of the defendant's addresses of record over the course of a month, leaving 

their cards at all of the locations, and that the defendant did not contact the police in 

response to their attempts. The defendant maintains that he was not aware that the police 

were looking for him. The credibility, weight, and effect of this evidence is for you to 

decide. Generally speaking, when a crime has been committed that a person thinks he is or 

5 

the Court instructed the jury as follows: 

Appellant to contact police, and there was no response to their efforts. Based upon the evidence 

eighteen addresses where Appellant was known to have lived, leaving cards with information for 

their best efforts. Philadelphia Police Officer Edward Lichtenhan testified that police went to 

Complainant's mother and father searched for him for a month and was unsuccessful in spite of 

sub Judice, the Commonwealth introduced evidence that upon learning of the Appellant's crimes, 

is there reversible error. Commonwealth v. Kerrigan, 920 A.2d 190 (Pa. Super. 2007). In the case 

jury instructions, and only when there is an abuse of discretion or an inaccurate statement of the law 

The trial court has broad discretion in determining, phrasing, and accurately presenting its 

claim is likewise without merit. 

Appellant also complains that the Court erred in instructing the jury regarding flight. This 

weighing the credibility of each witness. Error was not committed. 

conduct. Moreover, the Court carefully and thoroughly instructed the jury on determining and 

away. There was no physical violence perpetrated to alert SC of the extreme nature of Appellant's 

who was in a position of authority over her and left to care for the minor child while her mother was 

years of age at the time of these incidents and the perpetrator was her mother's live-in boyfriend 

Commonwealth v. Thomas, supra, 904 A.2d @ 971. In the instant case, SC was approximately five 

This is especially true where the perpetrator is one with authority or custodial control over the 

victim. Similarly, if the victim suffers from a or diminished capacity, a prompt complaint 

instruction may not be appropriate." 

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6 

"This rule has been adopted and frequently applied in our own State. It is not, however, 

inflexible. It does not have the finality of the doctrine of resjudicata. "The prior ruling may 

have been followed as the law of the case but there is a difference between such adherence 

In Mc/landless the Superior Court of Pennsylvania elucidated: 

however, inflexible. Commonwealth v. McCandless, supra, 880 A.2d@ 1268. 

2005 PA. Super. 280, 880 A.2d 1262 (Pa. Super. 2005). The law of the case doctrine is not, 

Commonwealth v. Starr, supra, 541 Pa.@574, 664 A.2d@ 1331, Commonwealth v. McCandless. 

"The law of the case doctrine refers to a family of rules which embody the concept that a 

court involved in the later phases of a litigated matter should not reopen questions decided 

by another judge of that same court or by a higher court in the earlier phases of the matter .... 

The various rules which make up the law of the case doctrine serve not only to promote the 

goal of judicial economy ... but also operate (1) to protect the settled expectations of the 

parties; (2) to insure uniformity of decisions; (3) to maintain consistency during the course 

of a single case; (4) to effectuate the proper and streamlined administration of justice; and 

(5) to bring litigation to an end." 

Pennsylvania stated: 

In Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995), the Supreme Court of 

doctrine. This claim is without merit. 

claims the admission of Complainant's letter to Appellant is prohibited by the law of the case 

Complainant's letter to Appellant in the Commonwealth's case in chief. Specifically, Appellant 

Appellant next complains that the Court erred in permitting the introduction of 

This instruction is appropriate and accurate. Error was not committed. 

may be accused of committing and he conceals himself, such concealment is a circumstance 

tending to prove the person is conscious of guilt. Such concealment does not necessarily 

show consciousness of guilt in every case. A person may conceal or hide himself for some 

other motive and may do so even when innocent. Whether the evidence of possible 

concealment in this case should be looked at as tending to prove guilt depends upon the facts 

and circumstances of this case and especially upon motives that may have prompted the 

concealment. You may not find the defendant guilty solely on the basis of evidence of 

flight or concealment." N.T. 9/30/2013@ 112. 

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7 

intercourse by including the proviso "except as provided by"; and the sentence imposed for indecent 

expressly requires any sentence to merge with the charges of Rape and Involuntary deviate sexual 

imposed was illegal as the language of 18 Pa.C.S. § 3215 (relating to aggravated indecent assault) 

merge certain offenses for sentencing purposes. Specifically, Appellant asserts that the sentence 

Finally, Appellant complains that the sentence imposed was illegal as the Court did not 

into evidence in the subsequent trial of the case. Error was not committed. 

case doctrine is based. This Court exercised its discretion to permit the introduction of the letter 

read to the jury. This intervening consequence undermines the policy upon which the law of the 

After ruling, the defense opened the door to its use, and the letter was ruled admissible and was then 

psychotherapy which she received after she was raped and sexually assaulted was inadmissible. 

motion in limine ruling that a letter the Complainant wrote to Appellant while in the course of 

presided over by a different judge of this Court of coordinate jurisdiction. That judge granted a 

In the case sub Judice a retrial was necessitated following a hung jury. The first trial was 

manifest injustice if followed. See, Commonweallh v. Starr, supra. 

rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a 

previously allowed in circumstances where there has been a change in the facts or evidence giving 

Hernandez, 39 A.3d 406, 2012 PA Super 40. Departure from the law of the case doctrine has been 

of pre-trial applications in an effort to maintain judicial economy and efficiency. Commonwealth v. 

Commonwealth v .. McCandless, supra. The doctrine is based on a policy of fostering the finality 

and res judicata; one directs discretion, and the other supercedes it and compels judgment. 

In other words, in one it is a question of power, in the other of submission." The rule of the 

"law of the case" is one largely of convenience and public policy, both of which are served 

by stability in judicial decisions, and it must be acconunodated to the needs of justice by the 

discriminating exercise of judicial power." 

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8 

officials and public funds. Error was not committed. 

Pa.C.S. § 3215 is ofno avail as 18 Pa.C.S. § 3215 relates to publicly owned facilities; public 

involuntary deviate sexual intercourse with a child. Appellant's reference to the language in 18 

Clearly, all of the statutory elements of rape of a child are included in the statutory elements of 

"(e) Definition.v-As used in this section, the term "forcible compulsion" includes, but is not 

limited to, compulsion resulting in another person's death, whether the death occurred 

before, during or after the sexual intercourse." 

18 Pa.C.S.A. § 3123(e) defines 'forcible compulsion' as follows: 

person engages in deviate sexual intercourse with a complainant who is less than 13 years of age. 

commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the 

complainant who is less than 13 years of age." 18 Pa.C.S.A. § 3123(b) provides that "(a) person 

of a child, a felony of the first degree, when the person engages in sexual intercourse with a 

Morals of a Minor. 18 Pa.C.S.A. § 3 l21(c) provides that "(a) person commits the offense of rape 

Welfare of Children, Indecent Assault of a Person Less than 13 Years Old, and Corrupting the 

Assault of a Complainant less than 13 years old, Unlawful Contact With a Minor, Endanger the 

In the instant case sentence was imposed for the crimes of Rape of a Child, Aggravated Indecent 

"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." 

42 Pa.C.S.A. § 9765 provides, in pertinent part, as follows: 

merge with each other. These claims are without merit. 

assault and indecent assault of a child under 13 merge with the other offenses or, in the alternative, 

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9 

·L_ ry BRIGHT,l 

BY THE COURT 

affirmed. 

For the foregoing reasons, error was not committed and the Judgment of Sentence should be 

CONCLUSION 

not committed. 

included in the statutory elements of any other offense on which sentence was imposed. Error was 

Here again, it is clear that all of the statutory elements of indecent assault of a child under 13 are not 

(7) the complainant is less than 13 years of age ... " 

( a) Offense deflned.s-A person is guilty of indecent assault 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: 

"§ 3126. Indecent assault 

Pa.C.S.A. § 3126 defines Indecent Assault, in pertinent part, as follows: 

assault of a child under 13, 18 Pa.C.S.A. § 3126(7), not for indecent assault generally. 18 

At the outset, the Record reflects that the Court imposed sentence for the crime indecent 

merge with each other. This claim is likewise without merit. 

imposed for indecent assault of a child under 13 merge with the other offenses or, in the alternative, 

Appellant also asserts that the sentence imposed for indecent assault and the sentence 

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