Com. v. Macklin, D. ( 2015 )

J-S14023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARREN LAMONT MACKLIN,
Appellant No. 1488 EDA 2014
Appeal from the Judgment of Sentence of February 28, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0008503-2012
BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 01, 2015
Appellant, Darren Lamont Macklin, appeals from the judgment of
sentence entered on February 28, 2014, as made final by the denial of post-
sentence motions on April 15, 2014, following his bench trial conviction for
indecent assault of a person less than 13 years of age.1 Upon review, we
affirm.
The trial court set forth the facts and procedural history of this case as
follows:
Appellant’s non-jury trial commenced on May 13, 2013
and concluded on May 17, 2013. At trial, the
Commonwealth presented testimony from the victim, herein
“I.L.”, her mother, Jazla, Jacqueline Brown from Child and
Youth Services and Officer John Kuryan of the Chester City
Police Department.
____________________________________________
1
18 Pa.C.S.A. § 3126(a)(7).
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I.L. testified that although she is currently thirteen, she
was ten years old on the night of the incident and living [in
a home on] Jeffrey Street in Chester, Pennsylvania with her
mom, grandmother, sister and brother. Appellant, known
to her as “Sporty” would also spend time at the home.
I.L.’s mother, Jazla, testified that two other women also
stayed in the home on occasion, one by the name of Amber.
The house had four bedrooms and I.L. testified that
although she does not always sleep in the middle bedroom,
it is technically hers and that she always sleeps in that room
when she has company spending the night.
On the evening of the assault, I.L. had a friend spending
the night. Prior to going upstairs to bed, the two were
downstairs with I.L.’s grandmother, the grandmother’s
boyfriend, and Appellant, all of whom were drinking.
Sometime after I.L. had fallen asleep, she woke up to
Appellant “touching her rear end with his hands.” I.L.
testified that when she went to sleep her pants were up but
when she awoke to Appellant touching her, her pants were
pulled down, Appellant’s zipper was down, and Appellant
was “holding her rear end open.” I.L. flicked on the light []
and confronted Appellant to which he answered “my bad I
thought you was Amber.”
I.L.’s mother, Jazla, testified that her daughter told her
a few days later that “Sporty had touched her.” Jazla
confronted Appellant about the incident twice. The first
time, Appellant replied “I ain’t no molester” and then he left
the residence for a few days. When Jazla asked Appellant
again if he had touched I.L., she had to ask several times
before he responded: “My bad, I thought she was Amber.”
Jazla’s testimony was that she had no reason to believe that
Appellant was “messing around” with Amber. In fact, she
thought he was having sexual relations with the other
woman who sometimes stayed in the home. However,
Officer John Kuryan testified that when he interviewed
Appellant, he stated that he was sleeping with Amber and
the other woman, whom he identified as Takia Carr.
[Moreover,] Jazla testified that Amber was somewhere
between 5’6[”]-5’7[”] and 130 pounds while her daughter
was only 50-60 pounds. Shortly after the incident, Jazla
noticed that I.L. was acting differently, having nightmares
and acting out in school.
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At the conclusion of trial, [the trial court] found
Appellant guilty [of the aforementioned crime and not guilty
of attempted aggravated assault, attempted rape of a child,
and corruption of a minor.] Sentencing was deferred until
August 22, 2013, and [the trial court] ordered a
[p]sychosexual [e]valuation and [pre]-[s]entence
[i]nvestigation.
On May 20, 2013, [the trial court] issued an [o]rder to
have Appellant assessed by the Pennsylvania Sexual
Offenders Assessment Board [(herein “SOAB”)]. On August
14, 2013, the SOAB provided [the trial court] with a written
assessment and on August 15, 2013, the Commonwealth
filed a praecipe for a hearing.
On August 22, 2013, based on the report and the
request for a SOAB hearing, defense counsel requested a
continuance until October 3, 2013, which [the trial court]
granted.
On October 3, 2013, defense counsel advised [the trial
court] that he had retained his own expert who needed time
to review the reports. [The trial court] granted a
continuance[.]
On January 14, 2014, [the trial court] held a hearing to
determine whether Appellant should be classified as a
sexually violent predator [(“SVP”)], pursuant to 42 Pa.C.S.
§ 9795. The Commonwealth presented testimony from Dr.
Thomas F. Haworth Ph.D., a licensed psychologist and
member of the Pennsylvania SOAB, who testified that it was
his opinion that Appellant met the criteria to be classified as
a [SVP]. The defense presented testimony from Dr. Steven
Mechanick, M.D., who rendered the opinion that the
available evidence did not support Dr. Haworth’s opinion
that Appellant met the criteria. After hearing from the
witnesses, [the trial court] took the matter under
advisement until the sentencing hearing scheduled for
February 28, 2014.
On February 28, 2014, [the trial court] found that the
Commonwealth did not satisfy its burden to classify
Appellant as a [SVP], outlining its reasons on the record as
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well as issuing an [o]rder. [The trial court] then addressed
sentencing.
Pursuant to invoking 42 Pa.C.S. § 9718.2,[2] the
Commonwealth presented a certified copy of Appellant’s
prior conviction for sexual assault as well as the sentencing
sheet. Counsel for Appellant argued that the mandatory
minimum of twenty-five years [of imprisonment] was
unconstitutional under [Alleyne v. United States, 133 S.
Ct. 2151 (2013)]. [The trial court] disagreed with
Appellant’s argument and sentenced him to 300-600
months in a state correctional institution. On March 20,
2014, Appellant filed a [m]otion for [j]udgment of
[a]cquittal or [a]rrest of [j]udgment. [The trial court] held
a hearing on April 15, 2014, and subsequently denied the
motion.
Appellant filed a timely notice of appeal on May 13,
2014. [The trial court] issued a [Pa.R.A.P.] 1925(b) [o]rder
on May 14, 2014. Counsel requested an extension of time
to file his 1925(b) statement which [the trial court] granted.
On June 24, 2014, counsel filed a timely 1925(b)
statement[. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on July 21, 2014.]
____________________________________________
2
42 Pa.C.S.A. 9718.2 provides, in pertinent part:
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.
42 Pa.C.S.A. § 9718.2(a).
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Trial Court Opinion, 7/21/2014, at 2-5 (citations to the record and criminal
statutes omitted) (footnote one incorporated into body of the text).
On appeal, Appellant presents the following issues for our review:
1) Whether the evidence was insufficient to sustain the
conviction for [i]ndecent [a]ssault since the
Commonwealth failed to prove beyond a reasonable
doubt that [Appellant] intentionally made indecent
contact with a person less than thirteen years of age, or
that he did so with the purpose of arousing himself or the
complainant?
2) Whether the mandatory sentence imposed herein is
illegal, and should be vacated, since the Commonwealth
failed to prove that [Appellant] had a prior conviction
necessary to trigger application of the provision, and
because the provision and facts triggering it were not
included within the charging document?
Appellant’s Brief at 5 (italics omitted).
In his first issue presented, Appellant argues that there was
insufficient evidence to support his conviction for indecent assault because
the Commonwealth failed to prove that he made contact with the victim for
the purpose of arousing himself or the victim. Id. at 12. More specifically,
Appellant posits “he was not acting with the purpose of arousing” the victim
and “his actions constituted a reasonable mistake, which negated any intent
since he believed the complainant was an adult.” Id. at 14. Appellant
claims he “had a bona fide belief that he was engaging in lawful activity” and
“[h]is reasonable belief that he was touching his adult girlfriend rendered his
actions entirely innocent.” Id. at 15.
Our standard of review is well settled:
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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
trier of fact[,] while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014)
(emphasis and internal citation omitted).
Appellant was convicted of indecent assault of a person less than 13
years of age. “A person is guilty of indecent assault if the person has
indecent contact with the complainant […] for the purpose of arousing sexual
desire in the person or the complainant” and “the complainant is less than
13 years of age[.]” 18 Pa.C.S.A. § 3126(a)(7).
In this case, the trial court determined:
Here, the Commonwealth presented sufficient evidence to
establish that Appellant committed indecent assault on a
person less than thirteen years of age. Appellant asserts
that the Commonwealth failed to show he intentionally had
indecent contact with I.L. because he stated “my bad, I
thought you were Amber.” However, the testimony
presented clearly established that Amber was not present at
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the residence that evening. Rather, Appellant was at the
home with I.L. and her friend and was present when the
girls went upstairs to go to bed. Appellant walked into the
bedroom, got into the bed, pulled down I.L.’s pants,
unzipped his pants, put his hands onto I.L.’s rear end and
proceeded to spread her cheeks apart. Appellant only
stopped after I.L. woke up and confronted him. Even then,
Appellant simply stated “my bad, I thought you was
Amber.” The intent to have indecent contact was certainly
present. Furthermore, [the trial court did] not find
Appellant’s argument that he mistakenly believed the 60
[pound] child he was undressing was actually the grown
woman he was having sexual relations with to be not
credible.
Trial Court Opinion, 7/21/2014, at 6-7.
Based upon our standard of review and a review of the certified
record, we agree. Appellant was a close family friend and spent
considerable time at the subject residence. N.T., 5/15/2013, at 52-53.
There were four bedrooms in the house. Id. at 43. The “middle” bedroom,
where the incident occurred, was the victim’s bedroom, but she often slept
in her mother’s bedroom. Id. at 44. Amber also slept in the middle
bedroom from time to time. Id. at 53. There were only five people in the
residence on the night in question – Appellant, the victim, the victim’s
friend, the victim’s grandmother, and the grandmother’s boyfriend. Id. at
42-43. The victim and her friend went upstairs to go to bed; they both slept
in the same bed. Id. at 43, 46. The victim awoke with her pants down and
Appellant with his hands on her rear-end “holding it open like.” Id. at 47.
When she turned on a light and confronted Appellant, he replied that he
thought the victim was someone else. Id. Appellant’s pants were unzipped.
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Id. at 71. The victim’s mother confronted Appellant several days later and
he said, “I’m not a molester” and left the residence for a couple of days. Id.
at 82-83. Upon his return to the residence, the victim’s mother confronted
Appellant again, in the presence of the victim, and Appellant stated that he
thought the victim was Amber. Id. at 83. The victim’s mother testified that
she did not see Appellant for a long time after the second confrontation. Id.
at 84. The victim suffered from insomnia and nightmares and began “acting
up in school” following the incident. Id. at 85-86. The victim’s mother
testified that there was a 70 pound differential between the victim and
Amber at the time in question. Id. at 87.
Appellant pulled down the victim’s pants and grabbed the victim’s
rear-end. Appellant’s pants were unzipped at the time. Thus, his intent of
arousing sexual desire in himself was clear. Moreover, the record belies
Appellant’s claim of mistake. Appellant was familiar with the residence and
the transient nature of the sleeping arrangements therein. Appellant
witnessed the victim and her friend going upstairs to bed and they were the
only people in the house aside from the three adults who all remained
downstairs. The victim was sleeping in a bed with her friend at the time of
the incident. The victim was much smaller than Amber and Amber was not
present on the night in question. These facts refute Appellant’s argument
that he thought the victim was someone else. Further, when confronted by
the victim’s mother on different occasions, Appellant disappeared for days at
a time. Finally, the victim’s behavior was markedly different after the
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incident. In totality, the facts were sufficient to convict Appellant of indecent
assault on a person less than 13 years of age. Accordingly, Appellant’s first
issue lacks merit.
In his next issue, Appellant contends that the trial court imposed an
illegal sentence when it applied a mandatory minimum sentence based upon
a prior conviction pursuant to 42 Pa.C.S.A. § 9718.2. Appellant’s Brief at
17. First, Appellant argues “the Commonwealth failed to establish that he
had a prior conviction.” Id. at 19. Appellant maintains that “[t]he only
evidence” the Commonwealth offered “was a fourteen-year old sentencing
sheet that contained the name Darren Macklin.” Id. at 20. He suggests
“[i]t could have been another Darren Macklin or someone who used his
name at the time of arrest.” Id. Next, Appellant avers that the indictment
or bill of information does not contain allegations of prior convictions and,
thus, the trial court could not impose an enhanced sentence under the
recidivist statute. Id. at 22. In sum, he avers:
The mandatory statute at issue in this case is more than
just a sentencing provision. It is a new, aggravated crime,
with increased penalties for alleged recidivists. In this case,
the offense was graded as a first-degree misdemeanor, but
the resulting penalty was ten times greater than that
generally permitted for such violations. Therefore, the
statute and the facts triggering it must be included in the
charging document before it can be imposed. Otherwise, it
would be akin to a defendant being charged with and
convicted of only one minor crime, but being sentenced for
a separate, more serious offense.
Id. at 23.
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The United States Supreme Court has determined that any fact that
increases a mandatory minimum sentence is an element of the crime, not a
sentencing factor, and must be submitted to the jury to be determined
beyond a reasonable doubt. See Alleyne v. United States, 133 S. Ct.
2151 (2013). However, this Court has recently determined:
Prior convictions are the remaining exception to Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000), and Alleyne v. United States, ––– U.S. ––––,
133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), insofar as a fact-
finder is not required to determine disputed convictions
beyond a reasonable doubt to comport with the Sixth
Amendment jury trial right. See Almendarez–Torres v.
United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d
350 (1998). However, the viability of this holding has been
questioned, see Almendarez–Torres, supra (Scalia, J.
dissenting); Apprendi, supra (Thomas, J. concurring), and
five Justices appear to disagree with the Almendarez
holding, to the extent a conviction would increase a
defendant's maximum sentence; namely, Justices Scalia,
Thomas, Ginsburg, Sotomayor, and Kagan. As noted by this
Court, “[t]he precise issue has yet to be reconsidered by the
United States Supreme Court following Apprendi. See
Alleyne, supra at 2160 n. 1.” Commonwealth v. Watley,
81 A.3d 108, 117 n. 3 (Pa. Super. 2013) (en banc).
Commonwealth v. Hale, 85 A.3d 570, 585 (Pa. Super. 2014). Thus,
mandatory minimum sentences for recidivism remain constitutional in
Pennsylvania.
In this case, pursuant to 42 Pa.C.S.A. § 9718.2, the trial court
imposed a mandatory minimum sentence of 25 years of imprisonment,
because Appellant had a prior conviction for sexual assault. Section 9718.2
provides, in pertinent part:
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(a) Mandatory sentence.—
(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).
* * *
(c) Proof of sentencing.--The provisions of this section
shall not be an element of the crime, and notice thereof to
the defendant shall not be required prior to conviction, but
reasonable notice of the Commonwealth's intention to
proceed under this section shall be provided after conviction
and before sentencing. The applicability of this section shall
be determined at sentencing. The sentencing court, prior to
imposing sentence on an offender under subsection (a),
shall have a complete record of the previous convictions of
the offender, copies of which shall be furnished to the
offender. If the offender or the attorney for the
Commonwealth contests the accuracy of the record, the
court shall schedule a hearing and direct the offender and
the attorney for the Commonwealth to submit evidence
regarding the previous convictions of the offender. The
court shall then determine, by a preponderance of the
evidence, the previous convictions of the offender and, if
this section is applicable, shall impose sentence in
accordance with this section. Should a previous conviction
be vacated and an acquittal or final discharge entered
subsequent to imposition of sentence under this section, the
offender shall have the right to petition the sentencing court
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for reconsideration of sentence if this section would not
have been applicable except for the conviction which was
vacated.
42 Pa.C.S.A. § 9718.2.
We are cognizant of the following legal principles:
In interpreting a statute, we are called to ascertain and
effectuate the intention of the General Assembly. Every
statute shall be construed, if possible, to give effect to all its
provisions. When the words of a statute are clear and free
from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit. Furthermore, we
interpret statutes so as to give effect to all its provisions.
We may not render language superfluous or assume
language to be mere surplusage.
Additionally, this Court strictly construes criminal
statutes and any doubt as to the meaning of a criminal
statutory provision is to be resolved in favor of the
defendant. Concomitantly, a court may not achieve an
acceptable construction of a penal statute by reading into
the statute terms that broaden its scope.
We generally interpret words and phrases according to
their common and approved usage; but technical words and
phrases and such others as have acquired a peculiar and
appropriate meaning or are defined in this part, shall be
construed according to such peculiar and appropriate
meaning or definition.
Hale, 85 A.3d at 580 (internal citations, quotations and brackets omitted).
Here, pursuant to the plain language of Section 9718.2, the
Commonwealth was not required to give Appellant notice of the applicability
of this statute prior to his conviction. See 42 Pa.C.S.A. § 9718.2(c)
(“[N]otice … to the defendant shall not be required prior to conviction.”).
Thus, we summarily reject Appellant’s contention that he was entitled to
notice in the bill of criminal information. Instead, the Commonwealth was
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required to give Appellant “reasonable notice of [its] intention to proceed
under this section … after conviction and before sentencing.” Id. On May
16, 2013, the trial court rendered its verdict. N.T., 5/16/2013, at 3-4. The
trial court ordered a presentence investigation and a psychosexual
evaluation. Id. at 6. Immediately thereafter, the Commonwealth gave
notice that it planned to seek a mandatory minimum sentence of 25 years of
imprisonment under Section 9718.2. Id. at 8-10. Thus, the Commonwealth
gave proper notice under 9718.2.
At sentencing, the Commonwealth presented certified copies of a bill of
criminal information “showing a conviction for a prior sexual assault …
entered on January 14, 2000[,]” as well as the sentencing sheet in that
matter, “for Darren Macklin, same date of birth.” N.T., 2/28/2014, at 7, 11.
The trial court recognized that the criminal complaint filed in this matter
bore the name, “Darren Lamont Macklin, date of birth, November 4, 1976.”
Id. at 14-15. After examining the sentencing sheet in the prior sexual
assault case, the trial court noted “it has the date of birth of November 4,
1976, which is the same date.” Id. Hence, the trial court took “judicial
notice based on the certified copies that this is one and the same person[.]”
Id. at 15. Appellant had adequate notice, but did not offer any evidence
that contradicted the Commonwealth’s proof.3
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3
Instead, Appellant argued that under Alleyne, the Commonwealth was
required to prove beyond a reasonable doubt that Appellant was the person
(Footnote Continued Next Page)
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We discern no error. Under Section 9718.2, the Commonwealth was
only required to prove by a preponderance of the evidence that Appellant
was previously convicted of a crime under Section 9799.14.4 “A
preponderance of the evidence is the lowest burden of proof in the
administration of justice, and it is defined as the greater weight of the
evidence, i.e., to tip a scale slightly in one's favor.” Commonwealth v.
A.R., 990 A.2d 1, n.4 (Pa. Super. 2010) (internal citation, quotations, and
brackets omitted). Stated differently, preponderance of the evidence is
tantamount to a “more likely than not” standard. Commonwealth v.
Heater, 899 A.2d 1126, 1133 (Pa. Super. 2006). Here, the Commonwealth
presented evidence that Appellant was more likely than not the same person
who committed the prior assault based upon the same name and birthdate
as reflected in certified court documents. Appellant’s second issue fails.
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
who committed the prior conviction. N.T., 2/28/2014, at 12-13. Appellant
suggested that the Commonwealth should have brought the victim, district
attorney, trial judge, or Appellant’s probation officer involved in the prior
conviction proceedings into the instant sentencing proceeding to identify
Appellant definitively. Id. As previously discussed, Appellant’s reliance on
Alleyne was misplaced and, as discussed infra, the Commonwealth was
only required to show by a preponderance of the evidence that Appellant
committed the prior sexual assault.
4
There is no dispute that sexual assault is an enumerated offense under
Section 9799.14.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2015
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