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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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