Commonwealth v. Albert

Summary

The Pennsylvania Superior Court affirmed Douglas Carl Albert's convictions for rape, involuntary deviate sexual intercourse, aggravated indecent assault, sexual assault, and indecent assault, while vacating the sentences for two sexual assault convictions. The court held that rape and IDSI were based on distinct criminal acts and therefore did not merge for sentencing, but sexual assault merged with the corresponding rape and IDSI offenses. The case was remanded for resentencing.

Holdings

1. Rape and IDSI did not merge because they arose from two distinct criminal acts: penile penetration of the victim's anus supported the rape conviction, while lingual penetration or oral contact with the anus supported the IDSI conviction.
2. The victim's testimony that Albert's mouth and tongue licked her anus was sufficient to establish the oral contact required for IDSI; the Commonwealth was not required to prove that the tongue protruded into the anal canal.
3. The two sexual-assault sentences were illegal because sexual assault is a lesser-included offense of rape and IDSI by forcible compulsion, and each sexual-assault conviction arose from the same criminal act as the corresponding greater offense.
4. The trial court's later orders purporting to deny merger relief and schedule resentencing were legal nullities because the court was divested of jurisdiction when the post-sentence motion was denied by operation of law under Pa.R.Crim.P. 720(B)(3)(a).

Questions Presented

1. Whether rape and involuntary deviate sexual intercourse merged for sentencing purposes when the rape conviction was based on penile anal penetration and the IDSI conviction was based on lingual contact with or penetration of the anus.
2. Whether the two sexual-assault convictions merged with the rape and IDSI convictions when each sexual-assault conviction arose from the same criminal act as one of those greater offenses.
3. Whether the trial court retained jurisdiction to enter post-sentence orders after the post-sentence motion was denied by operation of law.

Disposition

reversed_and_remanded