J.   A12033/19

NON-PRECEDENTIAL DECISION                 - SEE   SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :     IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                       v.

WILLIAM EUGENE MITCHELL,                                No. 1176 WDA 2018

                            Appellant


           Appeal from the Judgment of Sentence Entered June 25, 2018,
                     in the Court of Common Pleas of Erie County
                 Criminal Division at No. CP-25-CR-0002092-2016


BEFORE:       BENDER, P.J.E., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED AUGUST 05, 2019

          William Eugene Mitchell appeals from the June 25, 2018 aggregate

judgment of sentence of        8 to 16   years' imprisonment imposed after   a   jury
found him guilty of rape       - forcible compulsion,   sexual assault, involuntary

deviate sexual intercourse ("IDSI")        - forcible compulsion,   and aggravated

indecent assault.' After careful review, we affirm the judgment of sentence.

          The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows:        On August 26, 2016, appellant was




'    18    Pa.C.S.A.   §§   3121(a)(1), 3124.1, 3123(a)(1), and 3125(a)(1),
respectively.
J.   A12033/19

charged with rape and related offenses2 in connection with his repeated sexual

assault of   a   minor female, D.B. ("the victim"), between September 1, 1996

and August 4, 1999.       At the time of these assaults, the victim was between

15 and 17 years old and living alone with appellant at his home due to her

extremely calamitous home life. (Notes of testimony, 2/13/18 at 32-36, 39,

45-48.) During this time, appellant was between 51 and 54 years old and was

the sole provider of food, clothing, shelter, and other necessities for the victim.

(Id. at 50-54, 73-75.)
        On January 13, 2017, appellant filed an       omnibus pretrial motion,
arguing that: (i) the charges were filed beyond the statute of limitations and

in   violation of the constitutional prohibition against ex post facto laws; and

(ii) there was insufficient evidence as to the element of forcible compulsion to

support the charges of rape and IDSI. (See "Omnibus Pre -Trial Motion for

Writ of Habeas Corpus/Motion to Dismiss," 1/13/17 at §§ II -III,        Ill   7-14.)

A hearing on appellant's motion was held on July 12, 2017.         Thereafter, on

September 11, 2017, the trial court entered an order granting, in part, and




2 Specifically, appellant was charged with rape - forcible compulsion, in

violation of 18 Pa.C.S.A. § 3121(a)(1); two counts of IDSI, in violation of
18 Pa.C.S.A. § 3123(a)(1) and (a)(7); sexual assault, in violation of
18 Pa.C.S.A. § 3124.1; two counts of aggravated indecent assault, in violation
of 18 Pa.C.S.A. § 3125(1) and (8); endangering the welfare of children, in
violation of 18 Pa.C.S.A. § 4304(a); indecent exposure, in violation of
18 Pa.C.S.A. § 3127(a); corruption of minors, in violation of 18 Pa.C.S.A.
§ 6301(a); and four counts of indecent assault, in violation of 18 Pa.C.S.A.
§ 3126(a)(1).


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denying, in part, appellant's omnibus pretrial motion. Specifically, the trial

court held as follows:

              The Commonwealth's prosecution of [appellant] for
              Rape, [IDSI], Sexual Assault and Aggravated
              Indecent Assault is not barred by the Statute of
              Limitations.



              The Commonwealth's prosecution of [appellant] for
              Endangering Welfare of Children, Indecent Exposure,
              Corruption of Minors and Indecent Assault is barred
              by the current Statute of Limitations      .   .    .   .




              The Commonwealth presented sufficient evidence
              regarding "forcible compulsion" to support the
              charges of Rape and [IDSI].

"Findings of Fact and Conclusions of Law," 9/11/17 at 3, 5, 6 (numeration and

emphasis omitted); see also trial court order, 9/11/17 at                 III   1-3

        On February 9, 2018, the Commonwealth filed a motion to amend the

criminal information, which the trial court granted that same day.                        On

February 12, 2018, the Commonwealth filed an amended information charging

appellant with rape      - forcible compulsion,   sexual assault, and two counts each

of IDSI and aggravated indecent assault. On February 13, 2018, appellant

proceeded to     a   jury trial and was subsequently found guilty of one count each
of rape   - forcible compulsion,    sexual assault, IDSI         - forcible compulsion,   and




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aggravated indecent assault.3           As noted, on June 25, 2018, the trial court

sentenced appellant to an aggregate term of 8 to 16 years' imprisonment. On

July 5, 2018, appellant filed       a   timely post -sentence motion to modify his

sentence and for judgment of acquittal and/or           a   new trial challenging the

weight and sufficiency of the evidence. (See post -sentence motion, 7/5/18

at §§ I -II.) The trial court denied appellant's post -sentence motion on July 23,

2018. This timely appeal followed.4

           Appellant raises the following issues for our review:

                 A.    Whether the trial court committed reversible
                       error when it denied [appellant's] motion for a
                       mistrial after the Commonwealth's main witness
                       expressly referenced the accused's involvement
                       in  prior criminal activity during redirect
                       examination[?]

                 B.    Whether sufficient evidence existed to find
                       [appellant] guilty of rape and [IDSI] beyond a
                       reasonable doubt where the element of forcible
                       compulsion is absent[?]

                 C.    Whether the instant prosecution violated the
                       constitutional prohibition against ex post facto

3    The   jury acquitted appellant of one count of aggravated indecent assault,   in
violation of Section 3125(a)(8) (Count 4), and the trial court entered a
judgment of acquittal with respect to one count of IDSI, in violation of
Section 3123(a)(7) (Count 2).

4 On August 22, 2018, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 21 days. Appellant filed a timely Rule 1925(b)
statement on September 12, 2018.           On October 1, 2018, the
Honorable Stephanie Domitrovich filed a Rule 1925(a) opinion addressing
appellant's issues related to the pre-trial matters over which she presided,
and on October 4, 2018, the Honorable Daniel J. Brabender, Jr., filed a
Rule 1925(a) opinion addressing appellant's remaining claims.


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                       laws when the 2002 amendment to 42 Pa.C.S.A.
                       § 5552 created a new and separate category of
                       "Major Sexual Offenses" under § 5552(b.1) that
                       did not exist in 1999 while imposing a new
                       limitations period of twelve (12) years[?]

Appellant's brief at 6-7 (extraneous capitalization omitted).

        We begin by addressing appellant's claim that the trial court abused its

discretion by denying his motion for                a   mistrial following the victim's reference

during redirect examination to what appellant characterizes as "prior criminal

activity prejudicing [his] right to receive               a   fair trial." (Id. at 18).

              It                that the review of a trial court's denial
                   is well -settled
              of a motion for a mistrial is limited to determining
              whether the trial court abused its discretion. An abuse
              of discretion is not merely an error of judgment, but
              if in reaching a conclusion the law is overridden or
              misapplied, or the judgment exercised is manifestly
              unreasonable, or the result of partiality, prejudice,
              bias or ill -will   .discretion is abused. A trial court
                                      .   .


              may grant a mistrial only where the incident upon
              which the motion is based is of such a nature that its
              unavoidable effect is to deprive the defendant of a fair
              trial by preventing the jury from weighing and
              rendering a true verdict. A mistrial is not necessary
              where cautionary instructions are adequate to
              overcome prejudice.

Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014) (citations
omitted), appeal denied, 118 A.3d 1107 (Pa. 2015).

        Our supreme court has repeatedly recognized that "when examining the

potential for undue prejudice,                a   cautionary jury instruction may ameliorate

the prejudicial effect of the proffered evidence."                           Commonwealth v.
Hairston, 84 A.3d 657, 666                (Pa. 2014) (citations      omitted), cert. denied, 135



                                                    -5
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S.Ct. 164 (2014); see also      Commonwealth v. Sherwood, 982 A.2d 483,
497-498 (Pa. 2009) (finding that cautionary instructions were sufficient to

overcome the prejudicial effect of prior bad acts evidence), cert. denied, 559

U.S. 1111 (2010). Jurors are presumed to follow the trial court's instructions.

Commonwealth v. Elliott, 80 A.3d 415, 445             (Pa. 2013),   cert. denied, 135
S.Ct. 50 (2014).

        Instantly, the victim testified as follows:

              Q.    All right. So, [appellant] doesn't live there, he's
                    at Ernestine's [(appellant's mother)]?

              A.    Yeah.

              Q.    He comes back,    though, to the house?

              A.    Yes.

              Q.    When?

              A.    It was sometime after -- I don't know what
                    happened but I know that we had to go bail
                    him out of jail. I know that he --

Notes of testimony, 2/13/18 at 173-174 (emphasis added).

       Appellant's counsel immediately requested         a   sidebar and moved for   a


mistrial. (Id. at 174.) The trial court denied appellant's request and opted to

give the following cautionary instruction to the jury:

              THE COURT:      Ladies and gentlemen, I'm cautioning
              you at this time and asking you to absolutely
              disregard that statement about bailing anybody out of
              jail. This is no part in this trial, whatsoever, and you
              absolutely must disregard that statement. That does
              not come into play [in] any way, shape, or form here.
              All right.


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Id. at    176.

         Upon review, we discern no abuse of discretion on the part of the trial

court in denying appellant's motion for mistrial. The record reflects that the

Commonwealth did not, in any way, solicit or exploit the victim's brief and

spontaneous reference to the fact appellant was previously in jail in an

unrelated matter.          Rather, the Commonwealth's inquiry was merely to

determine whether the victim was residing in appellant's home with her

boyfriend after she turned 18 years old. Any potential prejudice that may

have resulted from the victim's brief reference to the fact appellant was

"bail[ed] out of jail" was cured by the trial court's cautionary instruction to the

jury.     (See notes of testimony, 2/13/18 at 173-174, 176.)               Accordingly,

appellant's first claim of trial court error fails.

         Appellant next argues that there was insufficient evidence to sustain his

conviction for rape and IDSI because "[t]he requisite element of forcible

compulsion was not proven beyond           a   reasonable doubt[.]" (Appellant's brief

at 25.)

         Our standard of review in assessing       a   sufficiency of the evidence claim

is   well settled.

                 We must determine whether the evidence admitted at
                 trial, and all reasonable inferences drawn therefrom,
                 when viewed in a light most favorable to the
                 Commonwealth as verdict winner, support the
                 conviction beyond a reasonable doubt. Where there
                 is sufficient evidence to enable the trier of fact to find
                 every element of the crime has been established


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                beyond a reasonable doubt, the sufficiency of the
                evidence claim must fail.

                The evidence established at trial need not preclude
                every possibility of innocence and the fact -finder is
                free to believe all, part, or none of the evidence
                presented. It is not within the province of this Court
                to re -weigh the evidence and substitute our judgment
                for that of the fact -finder. The Commonwealth's
                burden may be met by wholly circumstantial evidence
                and any doubt about the defendant's guilt is to be
                resolved by the fact[ -]finder unless the evidence is so
                weak and inconclusive that, as a matter of law, no
                probability of fact can be drawn from the combined
                circumstances.

Commonwealth v. N.M.C., 172 A.3d 1146, 1149 (Pa.Super. 2017) (citations
omitted).

        Read    in        relevant part, Section 3121(a)(1) provides that,             a   person

commits the offense of rape when he "engages in sexual intercourse with                         a


complainant       .   .   .    [b]y forcible compulsion."             18 Pa.C.S.A. § 3121(a)(1).

Likewise,   a   person commits the offense of IDSI when he "engages in deviate

sexual    intercourse with              a   complainant   .   .   .   [b]y forcible compulsion."
18 Pa.C.S.A. §            3123(a)(1).       Forcible compulsion is defined as "not only

physical force or violence but also moral, psychological or intellectual force

used to compel            a   person to engage in sexual intercourse against that person's

will." Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986); see

also 18 Pa.C.S.A.               §   3101 (forcible compulsion is "[c]ompulsion by use of

physical, intellectual, moral, emotional or psychological force, either express

or implied.").



                                                 -8
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       A   determination of forcible compulsion rests on the totality of the

circumstances, which includes consideration of,             inter alia, the following
factors:

             The respective ages of the victim and the accused, the
             respective mental and physical conditions of the
             victim and the accused, the atmosphere and physical
             setting in which the incident was alleged to have taken
             place, the extent to which the accused may have been
             in a position of authority, domination or custodial
             control over the victim, and whether the victim was
             under duress.

Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa.Super. 2015), citing
Rhodes, 510 A.2d at 1226, appeal denied, 125 A.3d 1198 (Pa. 2015). It               is

not necessary to show that the victim physically resisted the assault in order

to prove forcible compulsion.      Id.
       Additionally, we note that        "[t] he uncorroborated testimony      of the

complaining witness    is   sufficient to convict   a   defendant of sexual offenses."

Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.Super. 2005)
(citations omitted); see also Commonwealth v. Davis, 650 A.2d 452, 455

(Pa.Super. 1994) (holding that, the victim's uncorroborated testimony, if

believed by the trier of fact, is sufficient to support the conviction even if the

defense presents countervailing evidence),              affirmed, 674 A.2d 214    (Pa.

1996).

       Viewing the evidence in the light most favorable to the Commonwealth,

the verdict winner, we find that there was ample evidence to support the jury's

determination that appellant was guilty of rape and IDSI by forcible

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compulsion. We will not reiterate the extensive and graphic details of these

sexual assaults as was testified to by the victim and summarized by the trial

court. (See trial court opinion, 10/4/18 at 8-12.)             Suffice it to say, the

evidence overwhelmingly established that over the course of                 a    nearly

three-year period, appellant engaged in multiple acts of sexual intercourse

with the juvenile victim through use of "emotional or psychological force."

See 18 Pa.C.S.A.       §   3101.   The record reflects that at the time of these

offenses, the victim was between the ages of 15 and 17 and appellant was

between the ages of 51 and 54.          (Notes of testimony, 2/13/18 at 45, 75.)

During this time, the victim lived alone with appellant, who was in        a    position

of "custodial control" over the victim and was her sole provider of food,

clothing, school supplies, and other necessities.          (Id. at 42-47, 53-54;
Gonzalez, 109 A.3d at 721.)           Additionally, the physical setting where the

sexual assaults took place was in appellant's home, which the victim perceived

to be her only housing option at the time due to her extremely dire home life

and inability to afford alternative housing.      (Notes of testimony, 2/13/18 at

31-36, 80, 104-106.)         The record further reflects that the sexual assaults

would occur when appellant was alone with the victim, and that appellant

would force himself upon the victim, stating "he shouldn't be doing this" and

"he would be in    a   lot of trouble," but that "there   is   something about [the

victim] that he just has to do it." (Id. at 62-68.)




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             It   is also   apparent from the record that the victim was clearly under

duress, as she testified that she was shocked and confused; could not

understand why appellant was attracted to her; did not want to hurt his

feelings because she did not love him in            a   sexual manner; and felt that she

could not physically resist appellant and was more afraid of losing him as             a


father figure than submitting to him.             (Id. at 74-76, 100.) The victim also
testified that as the sexual abuse progressed, she started to become suicidal

and apathetic about life and took multiple measures to stop appellant,

including cessation of bathing in an effort to "just be gross to him." (Id. at

80, 87.) Based on the foregoing, we find that the Commonwealth presented

sufficient evidence of the element of forcible compulsion to sustain appellant's

convictions for rape and IDSI. See Gonzalez, 109 A.3d at 721.

             In his final claim, appellant contends that his prosecution for rape, IDSI,

and aggravated indecent assault were barred by the statute of limitations,

thereby violating the constitutional prohibition against ex post facto5 laws.



5 "The ex post facto prohibition forbids the Congress and the States to enact
any law which imposes a punishment for an act which was not punishable at
the time it was committed; or imposes additional punishment to that then
prescribed." Commonwealth v. Rose, 127 A.3d 794, 798 (Pa. 2015)
(citations and internal quotation marks omitted), cert. denied, 136 S.Ct.
2379 (2016). The ex post facto clause of the Pennsylvania Constitution
provides as follows: "No ex post facto law, nor any law impairing the
obligation of contracts, or making irrevocable any grant of special privileges
or immunities, shall be passed." (Pa. Const. Art. 1, § 17.) The ex post facto
clause of the United States Constitution, in turn, provides that, "No State shall
.    .pass any Bill of Attainder, ex post facto Law, or Law impairing the
         .


Obligation of Contracts      ." (U.S. Const. Art. 1, § 10.)
                                   .   .   .
J.   A12033/19

(Appellant's brief at 32.) In support in this contention, appellant avers that

the "[June 28,] 2002 amendment to 42 Pa.C.S.A.               §   5552 created   a   new and

separate category of 'Major Sexual Offenses' under               §   5552(b.1) that did not

exist in 1999 while imposing         a   new limitations period of twelve (12) years."

(Id. at     7, 34.)

          "A question regarding the application of the statute of limitations is          a


question of law. Thus, our standard of review            is de   novo and scope of review

is   plenary." Commonwealth v. Succi, 173 A.3d 269, 279 (Pa.Super. 2017)

(citations and internal quotation marks omitted), appeal denied, 188 A.3d

1121 (Pa. 2018).

          Courts in this Commonwealth have long recognized that the extension

of   a   statute of limitations cannot revive    a   cause of action where the statutory

period has run, as this would violate the ex post facto clauses of the United

States and Pennsylvania Constitutions.               In Commonwealth v. Riding, 68

A.3d 990 (Pa.Super. 2013),       a   panel of this court explained:

                Our Legislature has provided specific instruction on
                how to proceed in the circumstance presented here:

                      Whenever a limitation or period of time,
                      prescribed in any statute for acquiring a
                      right or barring a remedy, or for any other
                      purpose, has begun to run before a
                      statute repealing such statute takes
                      effect, and the same or any other
                      limitation is prescribed in any other
                      statute passed by the same General
                      Assembly, the time which has already run
                      shall be deemed part of the time
                      prescribed as such limitation in such


                                            - 12 -
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                     statute passed          by   the same General
                     Assembly.

             1    Pa.C.S.[A.]   §   1975.

             Section 1975 was interpreted by            a   panel of our Court
             in    Commonwealth v. Harvey, [542 A.2d 1027
             (Pa.Super. 1988)]:

                      [W]hen a new period of limitations is
                      enacted, and the prior period of
                      limitations has not yet expired, in the
                      absence of language in the statute to the
                      contrary, the period of time accruing
                      under the prior statute of limitations shall
                      be applied to calculation of the new period
                      of limitations.

             [Id. at 1029-1030.]
             However, in those cases in which the prior statute of
             limitations has expired before the new statute of
             limitations becomes effective, "[c]ase law is clear that
             in those situations, the cause of action has expired,
             and the new statute of limitations cannot serve to
             revive it." Id. at 1030.

Riding, 68 A.3d at 994 (citation format amended; footnote omitted). Our
supreme court has recognized that "[t]here             is   nothing 'retroactive' about the

application of an extension of        a   statute of limitations, so long as the original

statutory period has not yet expired." Commonwealth v. Johnson, 553

A.2d 897, 900 (Pa. 1989) (citations omitted).

        Here, appellant was charged with rape               - forcible compulsion,   sexual

assault, and two counts each of IDSI and aggravated indecent assault in

connection    with his     repeated         sexual assaults of the        victim between

September 1, 1996 and August 4, 1999.                 At this time, these offenses were


                                             - 13 -
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subject to   a 5 -year   statute of limitations that expired       5   years after the victim's

18th   birthday, or on August 5, 2004.                (See 42 Pa.C.S.A.         §   5552(c)(3),

effective February 17, 1991.)            On August 27, 2002, prior to the expiration of

the statute of limitations         -   on August 5, 2004       -   the Legislature amended

Section 5552, making the aforementioned offenses subject to                          a   12 -year

statute of limitations that expired 12 years after the victim's 18th birthday, or

on August 5, 2011.           (See 42 Pa.C.S.A.        §   5552(b.1), effective August 27,

2002.)    Prior to the expiration of the amended statute of limitations on

August 5, 2011, the Legislature once again amended Section 5552, which

became effective January 28, 2007. Section 5552 now provides, in relevant

part, as follows:

              (c)      Exceptions. --If  the period prescribed in
                       subsection (a), (b) or (b.1) has expired, a
                       prosecution may nevertheless be commenced
                       for:



                       (3)    Any sexual offense committed
                              against a minor who is less than
                              18 years of age any time up to the
                              later of the period of limitation
                              provided by law after the minor has
                              reached 18 years of age or the date
                              the minor reaches 50 years of age.

42 Pa.C.S.A.     §   5552(c)(3).

       Thus, pursuant to this amendment, the statute of limitations for the

aforementioned offenses expires on August 5, 2031, the victim's 50th birthday.




                                             - 14 -
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         Based on the foregoing, we agree with the trial court that appellant's

prosecution for rape, IDSI, and aggravated indecent assault was not barred

by the statute of limitations, as the statutory period for each offense had not

expired prior to the Legislature's amendment thereto.              As the trial court

explained in its opinion:

               The timeline set forth above clearly demonstrates the
               current statute of limitations for the above-referenced
               offenses had not expired prior to the Pennsylvania
               Legislature's amendment to the statute of limitations
               in both the years of 2002 and 2007 respectively.
               Therefore, appellant was not "free from conviction"
               pursuant to the current statute of limitations, and the
               prosecution of these offenses does not violate either
               the ex post facto clause of the Pennsylvania
               Constitution or general principles of retroactivity.

               As stated above, when a new period of        limitations is
               enacted, and a prior period of limitations has not yet
               expired, the period of time accruing under the prior
               statute of limitations shall be applied to the calculation
               of the new period of limitations.           However, an
               extension of a statute of limitation[s] cannot revive a
               case in which the statutory period has expired.

Trial court opinion, 10/1/18 at 7-8 (citations and extraneous capitalization

omitted).

         Accordingly, appellant's prosecution for said offenses did not constitute

a    violation of the ex post facto clauses of the Unites States and Pennsylvania

Constitutions, and his claim to the contrary merits no relief.

         For all the foregoing reasons, we affirm appellant's June 25, 2018

judgment of sentence.

         Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Es
Prothonotary
                        ,
Date: 8/5/2019




                            - 16 -
