J-S90018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ALBERT MCNAMEE

                         Appellant                  No. 2374 EDA 2015


        Appeal from the Judgment of Sentence Dated March 2, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003468-2011


BEFORE: OTT, J., SOLANO, J., and JENKINS, J.

MEMORANDUM BY SOLANO, J.:                 FILED DECEMBER 23, 2016

      Appellant, Albert McNamee, appeals from the judgment of sentence

imposed after a jury convicted him of rape, aggravated assault, unlawful

restraint, and theft. We affirm.

      The trial court recited the factual background presented at Appellant’s

trial as follows:

            In July 2009, [the victim] met Appellant and shortly
      thereafter began a romantic relationship with him. At one point,
      [the victim] gave Appellant a key to her house . . ., but shortly
      thereafter took it back because he came into her home
      intoxicated early one morning, yelling loud enough to wake up
      her children. In November of 2010, [the victim] learned that
      Appellant was having an affair with a female identified as Nicole,
      and she broke off the relationship. However, in January 2011
      they reconciled.

            Shortly after the reconciliation, Appellant underwent two
      minor surgical procedures and [the victim] permitted him to
      recuperate at her home.      [The victim] testified that while
      Appellant was staying with her he questioned her about her
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     friendship with a co-worker, []. [The victim] further testified
     that Appellant inquired about her personal information, and
     informed her that he had searched her cell phone, whereupon he
     found text messages exchanged with [the victim’s co-worker].
     At that point an argument ensued and [the victim] demanded
     that Appellant leave her home. [The victim] later learned that
     Appellant also accessed information on her computer, read her
     emails, and changed her passwords. She confronted [A]ppellant
     and he admitted tampering with her accounts.

           On March 5, 2011, [the victim] attended a charity boxing
     match where she briefly spoke with [her co-worker] and then
     joined other friends. While talking with one of her friends, [the
     victim] observed a text message ostensibly from [her co-
     worker]. [The victim] located [her co-worker] and asked about
     the message which he denied sending. [The victim] told [her
     co-worker] she believed Appellant hacked into her cell phone
     account. She also told [her co-worker] that Appellant had been
     sending her anonymous messages that he knew where she was
     located and what she was doing at any given time. [The victim]
     then said “I’m going to send you a message and I’ll give him
     something to read” whereupon she sent [her co-worker] the
     following text message: “Do you want to bang?” [Her co-
     worker] texted back: “Of course.” The pair had a laugh and
     then separated.

           After the event, [the victim], [her co-worker] and their
     friends went to a bar. While there, Appellant sent [the victim] a
     text, which she ignored, asking to go out for a drink. Thereafter
     suspicious cell phone exchanges appeared on [the victim’s] and
     [her co-worker’s] phones. Eventually [the victim] let Appellant
     know that she knew he was making the calls.

            The evening ended with [the victim’s co-worker] driving
     [the victim] home. As [the victim] prepared for bed, Appellant
     kicked in the bedroom door, accused her of having an affair with
     [her co-worker] and threatened to tell [her co-worker’s] wife.
     The encounter culminated in an argument, a vicious physical
     assault on [the victim], and ultimately rape, two times. At one
     point [the victim] was able to escape and yell out to her sleeping
     son, but was dragged back to the bedroom by Appellant and
     assaulted again. The son, [], was able to intercede and called
     the police. [The victim] was treated at Episcopal Hospital for her
     injuries.


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             An investigation of [the victim]’s home revealed that in the
      basement, the wiring for the house telephones had been
      disconnected. A knife was found at the phone junction location.
      A search of Appellant’s home pursuant to a warrant resulted in
      the recovery of [the victim]’s cell phone from a cereal box in a
      kitchen cabinet. Appellant’s desktop tower, two laptops and a
      digital camera were also taken. [The victim’s] and Appellant’s
      cell phone, text messages and related records were obtained for
      the applicable telecommunications devices. A Spyware file, Web
      Watcher, was found on [the victim]’s computer.

            Appellant gave a statement to police admitting to having
      used Spyware on [the victim]’s computer; and, attempted to
      explain away his behavior. He testified that he had vaginal sex
      with [the victim] and that it was consensual. He said that [the
      victim] was intoxicated.

            The defense presented character evidence that Appellant
      has a reputation in the community for being honest, peaceful,
      and law-abiding.

Trial Ct. Op., 2/1/16, at 1-4 (citations to notes of testimony, footnote and

identifying details pertaining to the victim omitted).

      Following trial, the jury rendered its guilty verdicts.    On March 2,

2015, the trial court sentenced Appellant to an aggregate 13 to 26 years’

incarceration.   Appellant filed a post-sentence motion which the trial court

denied.   Appellant filed a timely appeal, and presents three issues for our

review:

      [1.] DID THE TRIAL COURT ERR WHEN IT FOUND THAT THERE
      WAS   SUFFICIENT    EVIDENCE  TO  PROVE,   BEYOND   A
      REASONABLE DOUBT, THE CRIMINAL OFFENSE OF AGGRAVATED
      ASSAULT?

      [2.] DID THE TRIAL COURT ERR WHEN IT FOUND THAT THERE
      WAS   SUFFICIENT   EVIDENCE   TO  PROVE,   BEYOND   A
      REASONABLE DOUBT, THE CRIMINAL OFFENSE OF RAPE?




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      [3.] DID THE TRIAL COURT ERR WHEN IT SENTENCED
      APPELLANT ALBERT MCNAMEE FOR THE CRIMINAL OFFENSES OF
      RAPE AND AGGRAVATED ASSAULT AS THE SENTENCE FOR RAPE
      DEPARTED FROM THE PENNSYLVANIA SENTENCING GUIDELINES
      AND THE SENTENCE FOR AGGRAVATED ASSAULT EITHER
      DEPARTED FROM THE PENNSYLVANIA SENTENCING GUIDELINES
      OR WAS IN THE AGGRAVATED RANGE OF THE PENNSYLVANIA
      SENTENCING GUIDELINES?

Appellant’s Brief at 2.

      In his first two issues, Appellant challenges the sufficiency of the

evidence supporting his aggravated assault and rape convictions.

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. . . . When reviewing a sufficiency claim the
      court is required to view the evidence in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

Commonwealth v. Sullivan, 820 A.2d 795, 805 (Pa. Super.) (citation

omitted), appeal denied, 833 A.2d 143 (Pa. 2003).

      Appellant first claims that the Commonwealth failed to prove the

elements of aggravated assault.     The statute under which Appellant was

convicted states:

      § 2702. Aggravated assault

      (a) Offense defined.—A person is guilty of aggravated assault
      if he:

      (1) attempts to cause serious bodily injury to another, or causes
      such injury intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life . . . .



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18 Pa.C.S. § 2702 (emphasis added).

      Appellant specifically asserts that “there was no evidence adduced at

trial that [Appellant] caused or attempted to cause ‘serious bodily injury’ to

[C]omplainant ‘manifesting extreme indifference to human life.’” Appellant’s

Brief at 17. This assertion is belied by the record. The victim testified that

she was preparing to go to bed when her “bedroom door got kicked in.”

N.T., 7/21/14, at 36. She said she “heard a bash and I turned around and

he was just standing there.” Id. The victim tried to telephone police from

her land line and realized the phone line had been cut. Id. at 38. She then

attempted to retrieve her cell phone from the top of a dresser, and

explained:

      So I went for the dresser. And he stepped right in front of me
      and he said, Don’t even think about it. And I said, I don’t know
      who the hell you think you are. And he said, I’m going to show
      you who the hell I am, and he grabbed me by the hair, punched
      me a few times in the back of my head.

            I was down on my knees and I remember him putting my
      cell phone in my face and he was saying, Unlock your phone.
      Unlock your phone now. . . . [and I said] I’m not unlocking
      anything, and he hit me again and I said, Just please stop. I’ll
      unlock it. So he held the phone while I drew the pattern on it
      and I just asked him to please let me go to the bathroom. I felt
      sick. I told him I was going to throw up.

Id. at 39.

      The victim continued:

      [H]e came into the bathroom and he attacked me and . . . he
      started to strangle me. . . . I tried to inch away from him while
      he had me by the hair and he was – he kept punching me in my
      rear end and then I was rolled onto my back and he was like
      squeezing my jaw so hard[.] . . . I couldn’t breathe at all and I


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      remember choking and I remember being able to choke out the
      words, Please don’t let my kids find me like this. Stop. Like
      when they say your life flashes before your eyes, it’s true.

             He picked me up off that floor by my throat and then he
      dropped me. He walked out of the bathroom door after that and
      I just laid there. I couldn’t even feel my arms or legs anymore.

N.T., 7/21/14, at 40-41.

      Appellant does not dispute the above testimony. Appellant’s Brief at

17.   In fact, he acknowledges the victim’s additional testimony that she

suffered “finger mark bruises under her jaw, bruises to her arm, bruises to

her foot, a swollen mouth and a lump behind her ear.”      Id., citing N.T.,

7/22/14, at 145-46.   Appellant nonetheless argues that the evidence was

insufficient to support his conviction of aggravated assault because the

victim’s injuries did not constitute the statutory requirement of “serious

bodily injury.” Id. at 18. However, the statute requires that Appellant only

attempt to cause serious bodily injury.   For aggravated assault purposes,

an “attempt” to cause serious bodily injury to another requires some act,

albeit not one causing serious bodily injury, accompanied by an intent to

inflict serious bodily injury. Commonwealth v. Martuscelli, 54 A.3d 940,

948 (Pa. Super. 2012); see also Commonwealth v. Caterino, 678 A.2d

389, 391 (Pa. Super.) (holding that for purposes of establishing offense of

aggravated assault, the intent to cause serious bodily harm may be shown

by circumstances surrounding incident), appeal denied, 684 A.2d 555 (Pa.

1996).




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      The victim’s testimony was sufficient for the jury to conclude that

Appellant both attempted and intended to inflict serious bodily injury upon

her. Moreover, as the trial court observed, “[p]hotographs, medical records,

and   [the   victim’s]   sons’   testimony      were   introduced   into   evidence

corroborating [the victim’s] testimony. . . . The jury clearly found the

[victim] was credible.”    Trial Ct. Op., 2/1/16, at 6.     Appellant’s first issue

therefore is without merit.

      In his second issue, Appellant assails the sufficiency of his rape

conviction. The statute states:

      § 3121. Rape

      (a) Offense defined.—A person commits a felony of the first
      degree when the person engages in sexual intercourse with a
      complainant:

             (1) By forcible compulsion . . .

18 Pa.C.S. § 3121.

      Appellant’s argument challenging his rape conviction is that the

victim’s testimony “falls significantly short of fulfilling the element of ‘forcible

compulsion,’” and “she does not articulate exactly how this incident

occurred.” Appellant’s Brief at 20. Again, the record contradicts Appellant’s

claim. The victim testified:

            And then he comes over and he stands in front of me and
      he grabs me by my hair and I go backwards and I’m just saying,
      Don’t. Just don’t hit me again. Stop. And I didn’t even expect
      it. Next thing I know I just – I felt him inside of me and I just
      scooted back real quick and I said, What the fuck are you doing?
      What the fuck is wrong with you? And he said, You want to bang
      him but you don’t want to bang me? And I said, So you’re going


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       to rape me over that bullshit? And he said, You can’t rape your
       own girl, and then he was trying again.

N.T., 7/21/14, at 42.

       The above testimony was sufficient to support Appellant’s rape

conviction.    “[I]t is well-established that ‘the uncorroborated testimony of

the complaining witness is sufficient to convict a defendant of sexual

offenses.’” Commonwealth v. Castlehun, 889 A.2d 1228, 1232 (Pa.

Super. 2003) (citation omitted); see also Commonwealth v. Davis, 650

A.2d 452 (Pa. Super. 1994) (stating, “uncorroborated testimony of a sexual

assault victim, if believed by the trier of fact, is sufficient” to support

convictions even if defense presents countervailing evidence), aff’d, 674

A.2d 214 (Pa. 1996).        Accordingly, on the basis of the victim’s testimony

alone, Appellant’s second issue is without merit.1

       In sum, the evidence viewed in the light most favorable to the

Commonwealth as verdict winner was sufficient to convict Appellant of

aggravated assault and rape. Therefore, Appellant is not entitled to relief on

his sufficiency claims.

       In his third and final issue, Appellant challenges the discretionary

aspects of his sentence, maintaining that it was “manifestly excessive,” and

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1
  As noted above, the Commonwealth introduced “[p]hotographs, medical
records, and [the victim’s] sons’ testimony” to corroborate the victim’s
testimony,” such that “the jury clearly found the [victim] was credible.”
Trial Ct. Op., 2/1/16, at 6.



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“constituted too harsh a punishment.”            Appellant’s Brief at 23.   Appellant

argues that because his convictions were his “first,” and “there was

considerable mitigation evidence presented, . . . this sentence was so

‘manifestly excessive’ that ‘it constituted too severe a punishment.’” Id. at

22.

       Our    jurisdiction    in   reviewing     Appellant’s   sentencing   claim   is

discretionary, and we may not exercise our discretion unless we first

determine: (1) the appeal is timely; (2) Appellant preserved his issue; (3)

Appellant’s brief includes a concise statement of the reasons relied upon for

allowance of an appeal with respect to the discretionary aspects of his

sentences, as required by Rule 2119(f) of the Pennsylvania Rules of

Appellate Procedure; and (4) that concise statement raises a substantial

question that the sentences were inappropriate under the Sentencing Code.

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014),

appeal denied, 109 A.3d 678 (Pa. 2015).2 If the appeal satisfies each of

____________________________________________


2
  The third and fourth of these requirements arise because the General
Assembly has provided that a challenge to the discretionary aspects of a
sentence is not appealable as of right. Commonwealth v. Edwards, 71
A.3d 323, 330 (Pa. Super.), appeal denied, 71 A.3d 323 (Pa. 2013).
Instead, to invoke this Court’s power to review the discretionary aspects of a
sentence, an appellant must petition the Court to exercise discretionary
jurisdiction under Section 9781(b) of the Sentencing Code, 42 Pa.C.S.
§ 9781(b). Section 9781(b) provides: “The defendant or the Commonwealth
may file a petition for allowance of appeal of the discretionary aspects of a
sentence . . . to the appellate court that has initial jurisdiction for such
appeals. Allowance of appeal may be granted at the discretion of the
(Footnote Continued Next Page)


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these prerequisites, we may accept it and proceed to the substantive merits

of the case. Id.

      Here, Appellant has fulfilled the first, second, and third of these

requirements.      He has timely appealed, after preserving his sentencing

challenge in his March 11, 2015 motion for reconsideration of sentence, and

he has included a separate Rule 2119(f) statement in his appellate brief.

See Appellant’s Brief at 14. However, Appellant’s sentencing claim does not

present a substantial question for our review. Appellant’s argument is that

his sentence is “manifestly excessive” and “too severe,” given that this was

his first offense and he provided ample mitigation evidence such as

supporting letters, documentation of his anxiety, documentation of his

completion of prison programs, and the testimony of character witnesses.

Appellant’s Brief at 22-23.        “[T]his Court has held on numerous occasions

that a claim of inadequate consideration of mitigating factors does not raise

a substantial question for our review.”             Commonwealth v. Disalvo, 70

A.3d 900, 903 (Pa. 2013) (citation omitted).


                       _______________________
(Footnote Continued)

appellate court where it appears that there is a substantial question that the
sentence imposed is not appropriate under this chapter.” The Supreme
Court of Pennsylvania has held that a notice of appeal operates as a petition
for allowance of appeal under this section so long as the appellant’s brief
then includes a statement under Rule 2119(f) that sets forth sufficient
reasons for this Court to exercise its discretionary jurisdiction. See
Commonwealth v. Tuladziecki, 522 A.2d 17, 18-20 (Pa. 1987); see also
Commonwealth v. Gambal, 561 A.2d 710, 712-13 (Pa. 1989).



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      Nonetheless, even had Appellant presented a substantial question, the

trial court explained:

            In the case sub judice, prior to the imposition of sentence,
      the Court carefully considered the Presentence Report and
      Mental Health Evaluation, the Sentencing Guidelines, and the
      victim’s testimony at sentencing and impact statement. The
      Court also considered testimony of Appellant’s witnesses, and
      the arguments of counsel. N.T. 3/02/2015. The sentence of the
      Court is provided for by the Sentencing Code, is within the range
      provided for in the Sentencing Guidelines, and is not contrary to
      the fundamental norms underlying the sentencing scheme.

Trial Ct. Op., 2/1/16, at 7.   Based on the foregoing, we find no merit to

Appellant’s claims of error. We therefore affirm the judgment of sentence

imposed by the trial court.

      Judgment of sentence affirmed.

Judge Ott joins the memorandum.

Judge Jenkins concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2016




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