Com. v. Harris, K., Jr.

J-A04023-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH HAYWOOD HARRIS, JR. :
:
Appellant : No. 851 MDA 2022

Appeal from the Judgment of Sentence Entered January 6, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004733-2019

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 15, 2023

Appellant, Kenneth Haywood Harris, Jr., appeals from the January 6,

2022 judgment of sentence of 25 to 50 years of incarceration entered in the

York County Court of Common Pleas following his conviction of Rape, Sexual

Assault, and Attempted Rape.1 Appellant challenges the sufficiency and

weight of the evidence, the legality of his mandatory minimum sentence, and

the addition of the Attempted Rape charge during trial. After careful review,

we affirm Appellant’s judgment of sentence.

The relevant facts and procedural history are as follows. On June 11,

2019, York City Police Officers Adam Nothstein and David Baez responded to

an assault in progress after a man reported that his neighbor (“Victim”) was

yelling out for help because she was being raped. When Officer Nothstein

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1 18 Pa.C.S. §§ 3121(a)(1), 3124.1, 901(a), respectively.
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arrived on the scene,2 he heard Victim scream from inside an apartment and

entered. Officers found Victim on her back lying on the floor with a man, later

identified as Appellant, on top of her. Officers observed that Appellant was

completely naked and Victim’s pants were pulled down.

Victim immediately told officers that Appellant was trying to rape her.

Appellant, however, claimed that the sexual encounter was consensual.

Officer Nothstein also noted that Appellant’s lip was bleeding; Appellant

claimed Victim had punched him.

Victim promptly reported to York Hospital where medical staff performed

a sexual assault forensic exam and collected evidence. Victim presented with,

inter alia, injuries to her elbows, bruising, tenderness, abrasions, and

lacerations to her vaginal area. An exam of the interior of her vagina revealed

multiple injuries and blood at the bottom of her cervix where her cervix and

vagina meet.

York City detectives interviewed Victim shortly after the assault. At that

time, Victim told detectives that Appellant had pulled down her pants and

underwear and forced his penis into her vagina multiple times.

Police arrested Appellant and, on July 11, 2019, charged him with Rape

and Sexual Assault. Appellant’s three-day jury trial commenced on May 19,

____________________________________________

2 Officer Nothstein wore a body camera. The jury viewed the body camera
footage at trial.

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2021. Victim, Officer Nothstein, and Michelle Frey, the forensic nurse who

examined Victim at York Hospital, testified at trial.3, 4

Relevant to the instant appeal, Victim testified that, on the night of the

assault, Appellant “pulled down my pants and panties, and he - - and he put

his penis inside me. I told him to stop. He didn’t stop at all. He said no.”

N.T. Trial, 5/20/21, at 114, 116. She further testified that she “felt his penis

inside me” and that she felt “pressure . . . in my [] vagina.” Id. at 117-18.

Victim repeatedly confirmed that Appellant’s penis was inside her vagina and

that she “kept saying no.” Id. at 114-118, 119, 144.

Appellant’s counsel vigorously cross-examined Victim regarding the

inconsistencies between her statement to Officer Nothstein immediately

following the assault that Appellant had “tried” to rape her and “tried” to pull

her pants down, and her subsequent statements and trial testimony that

Appellant had, in fact, pulled down her pants and raped her. See id. at 129,

133, 135-140.

Nurse Frey testified that Victim’s initial chief complaint upon arriving at

York Hospital was vaginal pain and bleeding. Id. at 166-67, 179. Nurse Frey

also offered testimony about the nature and extent of Victim’s physical

injuries. In particular, she testified that Victim exhibited bruising, tenderness,

____________________________________________

3 York City Police Detective Tiffany Pitts of the Special Victims Unit also
testified.

4The Commonwealth did not present any DNA or other forensic evidence in
support of its case.

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pinpoint-like hemorrhages, and numerous lacerations to her vagina. Id. at

174-76. In addition to conducting her own examination of Victim, Nurse Frey

also attended an examination of Victim performed by emergency room

doctors. She further testified that during that examination doctors observed

blood towards the back of Victim’s cervix. Id. at 182-83. Nurse Frey

explained that it was not possible that the blood was menstrual blood because

Victim is postmenopausal. Id. at 190.

Appellant cross-examined Nurse Frey regarding Victim’s statements to

her about whether Appellant had vaginally penetrated Victim. Nurse Frey,

reading her examination notes, stated “[i]t looks like she said that she thought

so, but, like, she - -I put attempted, so she must not have been, like, a

hundred percent [sure] but that she thought he did.” Id. at 186.

Officer Nothstein testified that when he arrived on the scene he stopped

outside of Victim’s door and heard a female voice screaming that she was

being raped and asking for help. Id. at 196. He explained that he then

entered Victim’s apartment and observed Appellant naked, laying on top of

the Victim whose pants were pulled down below her buttocks. Id. at 196-97,

203. He described that Victim was “clenching the front of her pants pulling

them up towards her waist . . . and the back part was exposed.” Id. at 203.

Officer Nothstein testified that, when describing the assault, Victim did not

“use the word penetrate. She stated that his privates did touch her privates

while he was attempting to have sex with her.” Id. at 204. Later, on cross-

examination, Officer Nothstein testified that in his written report he noted that

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Victim reported that Appellant “did not go inside of her.” Id. at 206. Officer

Nothstein testified that Victim “seemed scared and frantic.” Id. at 208.

Officer Nothstein also testified that, when he was initially asking Victim what

had transpired, he did not go into a lot of specific detail because his job as a

patrol officer is to “secure and make everybody safe and just basically get a

general overview of what happened without going into too much detail with

the actual victim . . . so that there’s no further trauma or any type of emotional

setbacks or anything like that.” Id. He explained that detectives follow up

with victims in rape cases and conduct more in-depth interviews. Id.

At the conclusion of the evidence, but prior to closing arguments, the

Commonwealth requested a jury instruction on the lesser-included offense of

Attempted Rape. N.T. Trial, 5/21/21, at 225. Appellant objected to this late

request on the grounds that the Commonwealth had known of the facts and

circumstances of this assault as early as July 2019 when it charged Appellant

and could have amended the information at any time prior to trial. Id. at 226.

The Commonwealth responded that after jury selection but prior to opening

statements it had informed Appellant’s counsel of its intent to make this

request. Appellant’s counsel did not dispute that he had prior notice of the

Commonwealth’s intention. The trial court granted the Commonwealth’s

request, noting that the rules permit amendment of the information at any

time up to and including during trial as long as the amendment does not create

unfair surprise or prejudice. Id. at 227. The court concluded that the

Commonwealth’s request did not create any unfair surprise because Appellant

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had known of the allegations and averments of fact since the Commonwealth

filed the charges. Id. at 226.

On May 21, 2021, the jury convicted Appellant of the above charges.

The trial court deferred sentencing pending the preparation of a pre-sentence

investigation (“PSI”) report. Relevant to the instant appeal, the PSI report

indicated that Appellant has, inter alia, two prior Rape convictions.

On January 6, 2022, the trial court held a sentencing hearing and

imposed a mandatory minimum sentence of 25 to 50 years’ incarceration.5

Appellant’s counsel did not object to the accuracy of the PSI report or to the

imposition of the mandatory minimum sentence.

Appellant filed a timely post-sentence motion in which he raised each of

the issues presented in this appeal. The trial court denied the motion on May

17, 2022.

This appeal followed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Whether the verdict was against the greater weight of
the evidence as to Rape and Sexual Assault[?]

2. Whether the evidence presented at trial was insufficient
to support the jury’s verdict as to Rape and Sexual
Assault[?]

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5 The court imposed this sentence consecutive to a sentence of 7 to 14 years
of incarceration Appellant was serving for failing to register as a sex offender.

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J-A04023-23

3. Whether the trial court abused its discretion in imposing
a mandatory minimum sentence pursuant to 18 Pa.C.S.
§ 9718[?]

4. Whether the trial court erred in granting the
Commonwealth’s request to add a lesser incident charge
of Attempted Rape?

Appellant’s Brief at 4.

A.

In his first issue, Appellant challenges the weight the jury gave to the

Commonwealth’s evidence sustaining his Rape and Sexual Assault convictions.

Id. at 10-12. In support, Appellant emphasizes the apparent inconsistencies

between Victim’s statements to Officer Nothstein and Nurse Frey that

Appellant only tried to rape her and her subsequent statements and trial

testimony that Appellant had penetrated her vagina. Id. at 11-12. He further

argues that, given that Officer Nothstein found Victim “on her back with her

pants pulled up in front, penetration would have been practically impossible.”

Id. at 12.

When considering challenges to the weight of the evidence, we apply

the following precepts. “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).

Resolving contradictory testimony and questions of credibility are matters for

the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.

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J-A04023-23

Super. 2000). It is well-settled that we cannot substitute our judgment for

that of the trier of fact. Talbert, supra at 546.

Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this Court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

“Because the trial judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing a trial court’s

determination that the verdict is [or is not] against the weight of the

evidence.” Id. at 546 (citation omitted). “One 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. (citation omitted).

Furthermore, “[i]n order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Id. (internal quotation

marks and citation omitted). As our Supreme Court has made clear, reversal

is only appropriate “where the facts and inferences disclose a palpable abuse

of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(citation and emphasis omitted).

“[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

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J-A04023-23

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014). For that reason, the trial court need not view the evidence in the light

most favorable to the verdict winner and may instead use its discretion in

concluding whether the verdict was against the weight of the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa. 2000).

Here, the jury credited Victim’s unequivocal trial testimony that

Appellant raped and sexually assaulted her over the statements she made to

Officer Nothstein and Nurse Frey in the minutes and hours after the assault,

when Victim was “scared and frantic.” N.T. Trial, 5/20/21, at 208. The jury

also credited Officer Nothstein’s testimony that, as a first responder, his job

was to secure Victim’s safety and not to scrutinize or delve deeply into Victim’s

initial statement. Id. Last, in convicting Appellant of Rape and Sexual

Assault, the jury credited Nurse Frey’s testimony regarding the physical

injuries sustained by Victim, including the presence of blood toward the back

of her cervix. Id. at 174-76, 182-83, 190.

Appellant essentially asks this Court to reassess the credibility of the

Commonwealth’s witnesses, and reweigh the evidence presented at trial. We

cannot and will not do so. Our review of the record shows that the evidence

is not tenuous, vague, or uncertain, and the verdict was not so contrary as to

shock the court’s conscience. Accordingly, we discern no abuse of discretion

in the trial court’s denial of Appellant’s weight claim.

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J-A04023-23

B.

In his second issue, Appellant challenges the sufficiency of the

Commonwealth’s evidence in support of his Rape and Sexual Assault

convictions. Appellant’s Brief at 12-14. Relying primarily on inconsistencies

in Victim’s testimony and prior statements, Appellant asserts that the

Commonwealth failed to establish beyond a reasonable doubt that Appellant

penetrated Victim. Id. at 14. He also argues that the Commonwealth did not

prove the charges because Victim’s “cervix and vaginal area did not present

any significant trauma or injury evidencing rape or sexual assault.” Id. Last,

Appellant claims that given Officer Nothstein’s testimony, that he found Victim

on her back with her pants pulled up to her waist in front, it would have been

impossible for Appellant to have raped her. Id. He, thus, concludes that the

evidence was insufficient to support the jury’s verdict as to Rape and Sexual

Assault. Id.

“A claim challenging the sufficiency of the evidence is a question of law.”

Widmer, 744 A.2d at 751. “Our standard of review is de novo, and our scope

of review is plenary.” Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa.

Super. 2019). When reviewing sufficiency challenges, we evaluate the record

in the light most favorable to the verdict winner, giving the Commonwealth

the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014). This

Court will not disturb a verdict when “there is sufficient evidence to enable the

fact-finder to find every element of the crime beyond a reasonable doubt.”

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J-A04023-23

Commonwealth v. Orr, 38 A.3d 868, 872 (Pa. Super. 2011) (en banc)

(citation omitted). The Commonwealth can establish these elements using

solely circumstantial evidence. Id.

“[T]he fact[ ]finder is free to believe all, part, or none of the evidence

presented.” Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa. Super.

2011) (citation omitted). In making our determination, we do not re-weigh

the evidence and substitute our judgment for that of the factfinder. Id. at

890. Challenges to witness credibility pertain to the weight, not sufficiency,

of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super.

2014).

“[T]he uncorroborated testimony of a sexual assault victim, if believed

by the trier of fact, is sufficient” to sustain a conviction. Commonwealth v.

Diaz, 152 A.3d 1040, 1047 (Pa. Super. 2016) (citation omitted); 18 Pa.C.S.

§ 3106.

The jury convicted Appellant of Rape by Forcible Compulsion, which the

Crimes Code defines as follows:

(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(a)(1). Sexual intercourse is penetration by the penis,

however slight. Id. at § 3101.

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J-A04023-23

The jury also convicted Appellant of Sexual Assault. “[A] person

commits a felony of the second degree when that person engages in sexual

intercourse or deviate sexual intercourse with a complainant without the

complainant’s consent.” 18 Pa.C.S. § 3124.1.

Our review of the trial testimony indicates that the evidence, when

viewed in the light most favorable to the Commonwealth as verdict-winner,

and all reasonable inferences drawn therefrom, supports Appellant’s

conviction. As noted above, the uncorroborated testimony of a sexual assault

victim, if believed by the jury, is sufficient to sustain a conviction. Here, Victim

testified repeatedly that Appellant’s penis was inside her vagina, noting that

she “felt [Appellant’s] penis inside” her and felt “pressure . . . in [her] vagina.”

N.T. Trial, 5/20/21, at 117-18. Appellant’s sufficiency claim, therefore, fails

on this basis alone.

In addition, Nurse Frey’s testimony pertaining to the results of the

examination she performed and the examination performed by emergency

room doctors corroborate Victim’s testimony that Appellant penetrated Victim

during the commission of his crimes. In particular, Nurse Frey detailed the

numerous bruises, lacerations, and abrasions present in Victim’s vaginal area

and testified that there was blood, which could not be menstrual blood,

present in the area where Victim’s vagina and cervix meet. Id. at 174-76,

182-83, 190. Given the physical evidence that indicated Victim sustained

repeated blunt force trauma to the area in and around her vagina, we conclude

that the Commonwealth presented sufficient evidence to prove that sexual

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intercourse, without Victim’s consent, occurred between Victim and Appellant.

Appellant is, therefore, not entitled to relief on this claim.

C.

In his third issue, Appellant avers that the trial court’s imposition of a

mandatory minimum sentence of 25 to 50 years’ incarceration, imposed

pursuant to the recidivist sentencing scheme in Section 9718.2,6 is cruel and

unusual punishment in violation of the Eighth Amendment of the U.S.

Constitution and Article 1, Section 13 of Commonwealth of Pennsylvania

Constitution. Appellant’s Brief at 14-16. Appellant concedes that no court has

ruled the mandatory provisions of Section 9718.2 unconstitutional but

contends that his mandatory sentence is unconstitutionally cruel and unusual,

since a standard range sentence for a rape conviction under the Sentencing

Guidelines is 7 to 15 years’ incarceration. Id. at 15-16.7 Id.
____________________________________________

6 Section 9718.2(a)(1) provides, in relevant 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.
§ 9718.2(a)(1).
7 Appellant also asserts that because the jury did not make a finding that he
had a prior conviction of a sexual offense, his mandatory sentence violates
the principles established by Alleyne v. United States, 570 U.S. 99 (2013).
However, the U.S. Supreme Court has clearly held that, “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime
(Footnote Continued Next Page)

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J-A04023-23

Appellant’s challenge to the constitutionality of his sentence is a pure

question of law. Brown v. Levy, 73 A.3d 514, 517 (Pa. 2013). Therefore,

our scope of review is plenary and our standard of review is de novo. Id.

In addressing constitutional challenges, we are mindful that there is a

strong presumption that legislative enactments are constitutional.

Commonwealth v. Barud, 681 A.2d 162, 165 (Pa. 1996). For an act to be

declared unconstitutional, an appellant must prove that the act “clearly,

palpably and plainly” violates the constitution. Id. (citation omitted). “All

doubts are to be resolved in favor of sustaining a statute; thus an appellant

has the heavy burden of persuasion when challenging the constitutionality of

a statute.” Commonwealth v. Nguyen, 834 A.2d 1205, 1208 (Pa. Super.

2003).

Moreover, “Pennsylvania courts have repeatedly and unanimously held

that the Pennsylvania prohibition against cruel and unusual punishment is

coextensive with the Eighth and Fourteenth Amendments to the United States

Constitution, and that the Pennsylvania Constitution affords no broader

protection against excessive sentences than that provided by the Eighth

Amendment to the United States Constitution.” Commonwealth v. Elia, 83

A.3d 254, 267 (Pa. Super. 2013) (citation and internal quotation marks

omitted). Appellant has not argued to the contrary. Accordingly, we only

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beyond the prescribed statutory minimum must be submitted to a jury and
proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (emphasis added). Appellant’s claim, thus, fails.

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need to review Appellant’s claim under the Eighth Amendment.

Commonwealth v. Barnett, 50 A.3d 176, 197 (Pa. Super. 2012).

The Eighth Amendment to the United States Constitution provides that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” U.S. Const., amend. VIII. “The Cruel

and Unusual Punishment clause prohibits not only barbaric punishments, but

also sentences that are disproportionate to the crime committed.” Elia, 83

A.3d at 268 (citation and internal quotation marks omitted). However, “[t]he

Eighth Amendment does not require strict proportionality between crime and

sentence. Rather, it forbids only extreme sentences which are grossly

disproportionate to the crime.” Commonwealth v. Baker, 78 A.3d 1044,

1047 (Pa. 2013) (citation omitted).

In order to determine if a sentence violates the Eighth Amendment, this

Court applies a three-pronged test, including:

(i) the gravity of the offense and the harshness of the penalty; (ii)
the sentences imposed on other criminals in the same jurisdiction;
and (iii) the sentences imposed for commission of the same crime
in other jurisdictions.

Id. (citation omitted). Importantly, we are not obligated to reach the second

and third prongs of the test “unless a threshold comparison of the crime

committed and the sentence imposed leads to an [inference] of gross

disproportionality.” Commonwealth v. Succi, 173 A.3d 269, 285 (Pa.

Super. 2017) (citation omitted).

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Here, the court sentenced Appellant, a repeat felony offender, under the

recidivist sentencing scheme. Challenges to recidivist sentencing schemes are

rarely successful. Baker, 78 A.3d at 1048.8

In Baker, our Supreme Court upheld the imposition of a mandatory

minimum sentence of 25 to 50 years’ incarceration for a defendant who had

been convicted of possessing child pornography more than one time. 78 A.3d

1052. Baker argued that his sentence was a simple, non-serious, possessory

offense. Our Supreme Court disagreed and emphasized “the fact that [the

appellant] is a repeat offender certainly goes to the gravity of his instant

offense.” Id. at 1051. The Court also explained that the appellant’s sexually

based crimes could not be viewed “in a manner that detaches them from the

devastating victimization” and “sexual abuse and exploitation of innocent

children for personal gratification.” Id. at 1052. The Court concluded that

Baker’s sentence, which was 500% above the statutory maximum sentence

which could be imposed on a first offender, was not an unconstitutionally

disproportionate sentence. See id. at 1050, 1052.
____________________________________________

8 In Baker, our Supreme Court observed that the United States Supreme
Court has only once struck down as unconstitutional the application of a
recidivist sentencing statute after a South Dakota court imposed a sentence
of life imprisonment without the possibility of parole based on the appellant’s
conviction of passing a bad check in the amount of $100. 78 A.3d at 1048.
See, e.g., Rummel v. Estelle, 445 U.S. 263 (1980) (finding no violation of
the Eighth Amendment where a Texas court imposed a sentence of life with
the possibility of parole after 12 years’ incarceration for receiving $120 under
false pretenses); Ewing v. California, 538 U.S. 11, 17-20, 30-31 (2003)
(upholding the constitutionality of a sentence of 25 years’ to life imposed
pursuant to California’s three-strikes law upon a conviction of theft involving
three golf clubs).

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As noted above, Appellant concedes that no court has ruled the

mandatory provisions of Section 9718.2 unconstitutional. Moreover, Appellant

has not addressed the proportionality considerations outlined in Baker.

Nevertheless, we observe that Appellant has two prior convictions of Sexual

Assault—one in 1985 and one in 1991, and both in New Jersey. Appellant’s

instant crimes—Rape, Sexual Assault, and Attempted Rape—are serious

offenses on their own and made even more grave by Appellant’s repeat

offender status. After comparing the gravity of the offenses with the severity

of Appellant’s sentence, we do not find that the mandatory sentence is grossly

disproportionate to the offenses.9 We, therefore, conclude that his sentence

is not cruel and unusual.

D.

In his final issue, Appellant claims that the trial court erred in permitting

the Commonwealth to add a lesser-included charge of Attempted Rape near

the end of trial. Appellant’s Brief at 16-18. Appellant asserts that this late

addition prejudiced him because his defense at trial had been that he had not

raped or sexually assaulted Victim, but only that he had attempted to do so.

Id. at 17-18. He, thus, avers that the amendment rendered his defense to

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9 Appellant’s sentence imposed as a recidivist exceeds the statutory maximum
applicable to a first offender by 250%. In comparison, the Baker Court found
the appellant’s sentence, which exceeded the otherwise statutory maximum
penalty by 500%, was not disproportionate and was, therefore,
constitutionally sound. See Baker, 78 A.3d at 1050.

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the previously charged offenses of Rape and Sexual Assault ineffective as to

the new charge. Id. at 18.

We review a trial court’s decision to grant or deny a motion to amend

an information for an abuse of discretion. See Commonwealth v. Small,

741 A.2d 666, 681 (Pa. 1999). As we have explained,

[a]n abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise
of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.
If in reaching a conclusion the trial court overrides or misapplies
the law, discretion is then abused and it is the duty of the appellate
court to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 10 (Pa. Super. 2014) (citations

and quotation marks omitted).

Rule 564 of the Pennsylvania Rules of Criminal Procedure provides as

follows:

The court may allow an information to be amended, provided that
the information as amended does not charge offenses arising from
a different set of events and that the amended charges are not so
materially different from the original charge that the defendant
would be unfairly prejudiced. Upon amendment, the court may
grant such postponement of trial or other relief as is necessary in
the interests of justice.

Pa.R.Crim.P. 564

“[I]f there is no showing of prejudice, amendment of an information to

add an additional charge is proper even on the day of trial.” Commonwealth

v. Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (citation omitted) (allowing

amendment just prior to closing arguments). “[O]ur courts apply the rule with

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an eye toward its underlying purposes and with a commitment to do justice

rather than be bound by a literal or narrow reading of procedural rules.”

Commonwealth v. Grekis, 601 A.2d 1284, 1288 (Pa. Super. 1992). See

also Commonwealth v. Mentzer, 18 A.3d 1200, 1202 (Pa. Super. 2011)

(same).

Relief is necessary only when the amendment prejudices the defendant.

Roser, 914 A.2d at 454. To evaluate prejudice, courts consider whether the

amendment changes the factual scenario; whether new facts, previously

unknown to the appellant, were added; whether the description of the charges

changed; whether the amendment necessitated a change in defense strategy;

and whether the timing of the request for the amendment allowed for ample

notice and preparation by appellant. Id.

Here, the trial court explained its decision to permit the Commonwealth

to add the lesser-included offense of Attempted Rape as follows:

[A]fter the testimony was presented at trial (but prior to closing
arguments) the Commonwealth sought to add the charge of
Attempted Rape. The new charge arose out of the same factual
situation as the initial Rape charge, involved the same basic
elements, and is a lesser included offense of the crime originally
charged in the information.

Trial Ct. Op., 5/20/22, at 13. With respect to Appellant assertions that the

addition of the Attempted Rape charge prejudiced him because of the impact

it had on his trial strategy, the court opined that,

[T]he Commonwealth asserted that it had informed [Appellant’s
c]ounsel after jury selection and prior to opening statements that
it might be requesting to add that charge, and [Appellant’s
c]ounsel did not dispute this assertion. Moreover, because

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[Appellant] was convicted of Rape (in addition to the Attempted
Rape and Sexual Assault charges), there is no prejudice to
[Appellant].

Id.

Following our review of the record, we conclude that the trial court did

not abuse its discretion in granting the Commonwealth’s request to add the

lesser-included Attempted Rape charge. This charge arose out of the same

circumstances, and has the same factual basis, as the Rape and Sexual Assault

charges. Moreover, Appellant had notice prior to the commencement of trial

that the Commonwealth would likely argue for the inclusion of the lesser-

included offense of Attempted Rape. Last, as the jury convicted Appellant of

all three offenses, including the more serious offense of Rape, Appellant has

not demonstrated that the addition of the Attempted Rape charge, which

merged with the Rape conviction, prejudiced him. This claim, thus, fails.

E.

In sum, each of Appellant’s challenges lacks merit. Accordingly, we

affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/15/2023

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