Com. v. Fike, E.
329 WDA 2016
| Pa. Super. Ct. | Nov 17, 2016Background
- Appellant Edwin A. Fike pled guilty to one count each of Indecent Assault (18 Pa.C.S. § 3126(a)(7)) and Corruption of Minors (18 Pa.C.S. § 6301(a)(1)) for touching the chest of a female cousin under 13 in January 2009.
- Sentencing occurred January 7–8, 2016; appellant argued the two convictions should merge for sentencing.
- Appellant asked the court to apply a “hybrid” merger test that examines statutory elements and the factual allegations in the charging documents.
- The Commonwealth and the Superior Court relied on the statutory-elements test enacted by the legislature (42 Pa.C.S. § 9765), which permits merger only when all statutory elements of one offense are included in the other and the crimes arise from a single act.
- The Superior Court found Indecent Assault and Corruption of Minors have different statutory elements (Corruption covers “any act” tending to corrupt a minor; Indecent Assault requires "indecent contact" and a victim under 13) and therefore do not merge.
- Judgment of sentence affirmed by the Superior Court on November 17, 2016.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Indecent Assault and Corruption of Minors must merge for sentencing | Fike: adopt a hybrid test (statutory elements + facts in the complaint) and find the convictions merge | Commonwealth: apply the statutory-elements test (per 42 Pa.C.S. § 9765 and precedent) so offenses do not merge | Court: refused hybrid test; applied statutory-elements test and held the offenses do not merge; judgment affirmed |
Key Cases Cited
- Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006) (plurality opinion advocating a hybrid merger test)
- Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007) (rejects Jones as nonbinding and adopts statutory-elements test)
- Commonwealth v. Martz, 926 A.2d 514 (Pa. Super. 2007) (applies statutory-elements test and holds Indecent Assault and Corruption of Minors do not merge)