J-A31011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM SAMUEL JENKINS,

                            Appellant                 No. 115 MDA 2014


         Appeal from the Judgment of Sentence September 30, 2013
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0004226-2011


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 18, 2014

       William Samuel Jenkins appeals from the judgment of sentence of

twenty-five to fifty years incarceration imposed by the trial court after a jury

found him guilty of attempt to commit indecent assault by forcible

compulsion and simple assault.1 We affirm.

       The victim in this matter, Veronica Daniels, before this incident, had

seen Appellant on prior occasions and talked to him in a bar. After leaving a

bar on September 10, 2011, Appellant propositioned Ms. Daniels to engage

in sex for $40.00. Ms. Daniels had previous involvement with prostitution.

She initially agreed to have vaginal intercourse with Appellant in exchange

for $40.00. Accordingly, Appellant and Ms. Daniels entered into an alleyway
____________________________________________


1
   The sex offense charge subjected him to a mandatory sentence based on
his prior conviction of a sex offense in Maine. 42 Pa.C.S. § 9718.2.
J-A31011-14



by 1426 North Third Street in Harrisburg.     The two began to engage in

sexual contact, but Appellant could not sustain an erection and Ms. Daniels

changed her mind.    She told Appellant multiple times to stop.      She also

pushed Appellant away as he began to masturbate, but Appellant grabbed

her throat and slammed her into a brick wall.     This caused the victim to

black out.

      When the victim regained consciousness, Appellant was attempting to

remove her belt and she kicked him away. She then heard a man ask what

was going on and Appellant ceased his assault. That individual, Todd Myers,

was responding to a work-related emergency to repair an air conditioner at

1426 North Third Street.    According to Mr. Myers, he ordinarily used the

service entrance to the building but heard noises behind a dumpster and

believed he was interrupting inappropriate behavior.      Mr. Myers yelled for

the people to leave, and reported the matter to his director, John Foltz.

Mr. Foltz reviewed surveillance video of the incident and contacted his

supervisor. The police were then alerted to the attack.

      Detective John O’Connor viewed the surveillance recording and

ascertained the identity of the victim.   He then travelled to Ms. Daniels’

residence.    Ms. Daniels was apprehensive at first and began to cry.

Detective O’Connor informed her that she was not in trouble. Ms. Daniels

told Detective O’Connor that she thought she was going to die, and that her

throat still hurt as a result of Appellant choking her. She admitted that she

had been a prostitute and initially agreed to have sex with Appellant. After

                                    -2-
J-A31011-14



the incident, she did not contact police, believing she would be blamed for

the matter based on her prior history of prostitution. Appellant provided the

police with his own statement in which he indicated that the victim agreed to

let him choke her so he could ejaculate.

     The Commonwealth initially charged Appellant with attempted rape

and aggravated assault.    Prior to trial, the Commonwealth also requested

that the court instruct the jury on attempted indecent assault and Appellant

sought a simple assault instruction.         The court agreed to provide both

charges.   The jury found Appellant not guilty of attempted rape and

aggravated assault, but convicted him of attempted indecent assault and

simple assault. The court directed that Appellant be assessed by the Sexual

Offender’s Assessment Board on December 10, 2012.

     Appellant filed an objection to that order, contending that it violated

Apprendi v. New Jersey, 530 U.S. 466 (2000), and alleging that his

offense should be graded as a misdemeanor of the second degree. After a

hearing, the court denied that motion. Based on Appellant’s prior conviction

for a sex offense in Maine, the court imposed a mandatory sentence of

twenty-five to fifty years incarceration for the sex offense. The court also

sentenced Appellant to a concurrent term of imprisonment of one to two

years for the simple assault charge.

      Appellant filed a timely post-sentence motion, which the trial court

denied. This timely appeal ensued. The trial court directed Appellant to file

and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

                                       -3-
J-A31011-14



appeal.   Appellant complied, and the trial court authored its opinion.       The

matter is now ready for our review. Appellant presents three questions for

this Court’s consideration.

      [1.] Was the evident [sic] sufficient to find Appellant guilty of
      the charge of Indecent Assault by Forcible Compulsion?

      [2.] Was the evidence against the weight of the evidence
      thereby necessitating a new trial?

      [3.] Was Appellant’s sentence beyond the statutory maximum
      for the offense of Indecent Assault by Forcible Compulsion an
      illegal sentence because Defendant was never charged with the
      office [sic] of Indecent Assault by Forcible Compulsion nor on
      notice that the conviction of same would trigger a sentence
      beyond the statutory maximum in violation of Article I[,] § 9 of
      Pa. Constitution and the 5th and 14th Amendments of the U.S.
      Constitution?

Appellant’s brief at 5.

      Appellant’s initial challenge is to the sufficiency of the evidence relative

to his indecent assault charge. In conducting a sufficiency of the evidence

review, we view all of the evidence admitted, even improperly admitted

evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013)

(en banc).    We consider such evidence in a light most favorable to the

Commonwealth as the verdict winner, drawing all reasonable inferences

from the evidence in favor of the Commonwealth.            Id.   When evidence

exists to allow the fact-finder to determine beyond a reasonable doubt each

element of the crimes charged, the sufficiency claim will fail. Id.




                                      -4-
J-A31011-14


      The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   In addition, the Commonwealth can prove its case by circumstantial

evidence.   Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief.         This Court is not

permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.

      Appellant contends that he did not have the requisite intent to commit

indecent assault by forcible compulsion because he paid the victim to engage

in sexual congress. The Commonwealth rejoins that, viewing the evidence

in a light most favorable to it as the verdict winner, it is clear that the victim

withdrew her consent.         It maintains that choking the victim while

masturbating, slamming her head into a wall, and attempting to remove her

belt are sufficient to establish the elements of attempted indecent assault by

forcible compulsion. We agree.

      Indecent assault by forcible compulsion is defined as follows.

      A person is guilty of indecent assault if the person has indecent
      contact with the complainant, causes the complainant to have
      indecent contact with the person or intentionally causes the
      complainant to come into contact with seminal fluid, urine or
      feces for the purpose of arousing sexual desire in the person or
      the complainant and:

            ....

      (2) the person does so by forcible compulsion;

                                      -5-
J-A31011-14


      (3) the person does so by threat of forcible compulsion that
      would prevent resistance by a person of reasonable resolution.

18 Pa.C.S. § 3126(a)(2)(3). Further, an attempt is committed “when, with

intent to commit a specific crime, he does any act which constitutes a

substantial step toward the commission of that crime.” 18 Pa.C.S. § 901(a).

      Here, there is no question that the facts as discussed above meet the

elements of the offense charged.       Appellant’s act of choking the victim,

slamming her into a brick wall, attempting to remove her belt after she told

Appellant that she no longer wished to have sex with him, and his act of

openly masturbating are sufficient evidence. Appellant’s claim is frivolous.

      Appellant’s second challenge is to the weight of the evidence with

respect to his attempt to commit indecent assault conviction. A weight claim

must be preserved in a timely post-sentence motion.       Commonwealth v.

Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012).          “Appellate review of a

weight claim is a review of the exercise of discretion, not of the underlying

question of whether the verdict is against the weight of the evidence.”

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (italics in

original). Accordingly, “[o]ne of the least assailable reasons for granting or

denying a new trial is the lower court's conviction that the verdict was or

was not against the weight of the evidence and that a new trial should be

granted in the interest of justice.” Id.

      A trial judge should not grant a new trial due to “a mere conflict in the

testimony or because the judge on the same facts would have arrived at a

                                     -6-
J-A31011-14


different conclusion.”   Id.    Instead, the trial court must examine whether

“‘notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.’” Id. Only where the jury verdict “is so contrary to the evidence as

to shock one's sense of justice” should a trial court afford a defendant a new

trial. Id. A weight of the evidence issue concedes that sufficient evidence

was introduced.      Commonwealth v. Charlton, 902 A.2d 554, 561

(Pa.Super. 2006).

      Citing a sufficiency of the evidence case, see Appellant’s brief at 13

(quoting Commonwealth v. Karakaria, 625 A.2d 1167, 1170 (Pa. 1993)),

Appellant contends that the verdict in this matter was based on conjecture.

He asserts that the tape only showed him attempting to prevent the victim

from leaving while he tried to arouse himself. The Commonwealth responds

that the video “fully corroborates the victim’s testimony, and therefore it

does not shock one’s sense of justice that the jury believed the testimony of

the victim.” Commonwealth’s brief at 11-12.

      Appellant’s weight claim is meritless. The jury was free to believe the

testimony of the victim.       The video supported the testimony of the victim

and Mr. Meyers. There is no evidence in this matter that is contrary to the

testimony of the Commonwealth’s witnesses. Nor is there even a conflict in

the testimony of the victim. The trial court did not abuse its discretion in

rejecting Appellant’s baseless weight of the evidence issue.


                                       -7-
J-A31011-14


       Appellant, in his final argument, contends that he was denied due

process of law because he was not on notice that a conviction for indecent

assault by forcible compulsion, graded as a misdemeanor of the first-degree

would trigger a twenty-five-year mandatory sentence.        In conjunction, he

adds that the mandatory sentence exceeded the lawful maximum that would

otherwise apply.       Appellant’s brief, however, is bereft of any citation to

pertinent case authority.2

       Appellant was sentenced under 42 Pa.C.S. § 9718.2.3         That statute

provides for mandatory sentences for a defendant previously convicted of


____________________________________________


2
   Appellant also argued below, but abandons on appeal, that the jury was
required to answer a specific interrogatory on whether it found that
Appellant met the element of attempted forcible compulsion or threat of
forcible compulsion. Since this was an element of the offense and the court
so instructed the jury, the jury necessarily found this element in reaching its
verdict. Thus, this aspect of Appellant’s position below was specious. We
add that Appellant did not object to the jury being instructed on the attempt
to commit indecent assault offense after the close of the jury instruction.
3
    42 Pa.C.S. § 9718.2 provides in full:

       (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
(Footnote Continued Next Page)


                                           -8-
J-A31011-14


                       _______________________
(Footnote Continued)

      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).

      (2) Where the person had at the time of the commission of the
      current offense previously been convicted of two or more
      offenses arising from separate criminal transactions set forth in
      section 9799.14 or equivalent crimes under the laws of this
      Commonwealth in effect at the time of the commission of the
      offense or equivalent crimes in another jurisdiction, the person
      shall be sentenced to a term of life imprisonment,
      notwithstanding any other provision of this title or other statute
      to the contrary. Proof that the offender received notice of or
      otherwise knew or should have known of the penalties under this
      paragraph shall not be required.

      (b) Mandatory maximum.--An offender sentenced to a
      mandatory minimum sentence under this section shall be
      sentenced to a maximum sentence equal to twice the mandatory
      minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating
      to sentence of imprisonment for felony) or any other provision of
      this title or other statute to the contrary.

      (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
(Footnote Continued Next Page)


                                            -9-
J-A31011-14


various sex offenses. Since the facts triggering the increased sentence are

prior convictions, neither Apprendi nor Alleyne v. United States, 133

S.Ct. 2151 (2013), is controlling.           See    Almendarez–Torres v. United

States, 523 U.S. 224 (1998); Alleyne, supra at 2160 n.1.4 While various

members of the United States Supreme Court have hinted that the
                       _______________________
(Footnote Continued)

      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 for reconsideration of sentence if this section
      would not have been applicable except for the conviction which
      was vacated.

      (d) Authority of court in sentencing.--There shall be no
      authority in any court to impose on an offender to which this
      section is applicable any lesser sentence than provided for in
      subsections (a) and (b) or to place the offender on probation or
      to suspend sentence. Nothing in this section shall prevent the
      sentencing court from imposing a sentence greater than that
      provided in this section. Sentencing guidelines promulgated by
      the Pennsylvania Commission on Sentencing shall not supersede
      the mandatory sentences provided in this section.

      (e) Appeal by Commonwealth.--If a sentencing court shall
      refuse to apply this section where applicable, the Commonwealth
      shall have the right to appellate review of the action of the
      sentencing court. The appellate court shall vacate the sentence
      and remand the case to the sentencing court for the imposition
      of a sentence in accordance with this section if it finds that the
      sentence was imposed in violation of this section.
4
  Similarly, this Court’s recent decisions governing the severability of those
provisions of mandatory minimum statutes relative to an unconstitutional
burden of proof are not implicated because this case involves a prior
conviction. Further, Appellant has not raised any argument relative to
severability or the constitutionality of the statute. Hence, any constitutional
challenge to 42 Pa.C.S. § 9718.2 would be waived.



                                           - 10 -
J-A31011-14


conviction exception is inconsistent with the original meaning of the jury trial

clause, see Watley, supra at 117 n.3, Appellant has not proffered any such

argument. To the extent that Appellant alleges that he was not on notice,

the statute provides that notice is not required prior to conviction. See 42

Pa.C.S. § 9718.2(c). Here, prior to trial, the Commonwealth placed on the

record that it was requesting to charge him with attempt to commit indecent

assault by forcible corruption.   In doing so, it explicitly notified Appellant

that, based on his previous conviction for a sexual offense in Maine, he was

subject to a twenty-five-year mandatory sentence if convicted. Specifically,

the Commonwealth set forth,

      you also have a conviction out of state in Maine that is of a
      nature of a sexual assault. Due to that, at Count No. 1 of the
      information, whether criminal attempt to commit rape or criminal
      attempt to commit indecent assault, there is a 25-year
      mandatory upon conviction for that charge.

      Thus, the Commonwealth went beyond the requirements of the

mandatory statute, which does not require pre-trial notice, and Appellant

was afforded appropriate notice. Appellant’s notice argument is thus devoid

of merit.




                                     - 11 -
J-A31011-14


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




                                 - 12 -
