Com. v. Smith, E. ( 2014 )

J-S67009-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC WAYNE SMITH, :
:
Appellant : No. 42 WDA 2014
Appeal from the Judgment of Sentence December 6, 2013,
Court of Common Pleas, Washington County,
Criminal Division at No. CP-63-CR-0000054-2013
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 17, 2014
Eric Wayne Smith (“Smith”) appeals from the judgment of sentence
entered on December 6, 2013 in the Court of Common Pleas of Washington
County, Criminal Division, following his convictions for indecent assault,1
false imprisonment,2 corruption of minors,3 and terroristic threats.4 For the
following reasons, we affirm.
The trial court accurately summarized the facts of this case as follows:
In the late summer/early fall of 2012, [R.M.] (age
15), [K.C.] (age 12), and [S.D.] (no age of record)
were ‘ding dong ditching’ in Lawrence, Washington
County. When [R.M.] approached 20 Third Street to
1
18 Pa.C.S.A. § 3126(a)(8).
2
18 Pa.C.S.A. § 2903(a).
3
18 Pa.C.S.A. § 6301(a)(1)(i).
4
18 Pa.C.S.A. § 2706(a)(1).
*Former Justice specially assigned to the Superior Court.
J-S67009-14
ring the doorbell, [Smith] approached the three
juveniles from the side of the house and asked them
what they were doing. After [R.M.] explained the
prank, [Smith] offered to share some of his
marijuana with the juveniles. [R.M.] called his
girlfriend, [J.C.] (age 15), to bring a pipe for
smoking the marijuana.
When [J.C.] arrived, the four juveniles proceeded to
a nearby park with [Smith] to smoke the marijuana.
While smoking together, [Smith] told [R.M.] that he
was gay, and wondered if [R.M.] knew anyone
around [R.M.]’s age that was also gay. When the
juveniles asked [Smith] about his age, [Smith]
initially stated that he was 27, then changed it twice
more during the conversation. Prior to leaving the
park, [Smith] provided his cell phone number to
[J.C.] and [R.M.].
Over the next month, [J.C.] texted [Smith]
frequently to obtain marijuana. On occasion, [J.C.]
would bring her brother [K.C.] with her to pick up
the marijuana at [Smith]’s residence or smoke it
there with [him]. [Smith] lived a short walking
distance from [J.C. and K.C.’s residence]. [K.C.]
began to stop by [Smith]’s house alone to smoke
marijuana. [Smith] never charged the juveniles for
the marijuana. On those occasions where [Smith]
would smoke with [J.C. and K.C.], it would always be
outside his house.
One evening in the fall of 2012[,] [K.C.] stopped at
[Smith]’s residence to smoke marijuana. [Smith]
invited him inside, and [K.C.] and [Smith] smoked
marijuana in [Smith]’s living room. [K.C.] asked
[Smith] how he knew he was gay. [Smith] asked
[K.C.] if he was gay, to which [he] responded he was
bisexual. [Smith] asked [K.C.] if he wanted to
engage in sexual activity, and [K.C.] said no. Despite
this refusal, [Smith] fondled [K.C.]’s genitalia over
his clothes. [K.C.] immediately stood up to leave,
but [Smith] grabbed his pant leg, causing [K.C.] to
fall to the ground. [Smith] threatened [K.C.], and
-2-
J-S67009-14
told him that if he told anyone what happened he
would kill him.
In December 2012, while admitted at Southwood
Psychiatric Hospital, [K.C.] disclosed the incident to
his therapists. Following a forensic interview and
notification of law enforcement, [Smith] was charged
[with several offenses].
Trial Court Opinion, 5/9/14, at 4-6 (footnotes and record citations omitted).
On August 23, 2013, the trial court held a nonjury trial after which it
found Smith guilty of the above-reference crimes. On December 6, 2013,
the trial court sentenced Smith to a total of six to twelve years of
incarceration. Smith did not file any post-sentence motions in this case. On
January 3, 2014, Smith filed a timely notice of appeal. On January 23,
2014, the trial court ordered Smith to file a concise statement of the errors
complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules
of Appellate Procedure. On February 6, 2014, Smith filed a timely Rule
1925(b) statement.
On appeal, Smith raises the following issues for our review:
DID THE COMMONWEALTH PRESENT SUFFICIENT
EVIDENCE, AS A MATTER OF LAW, OF EACH OF THE
COUNTS:
A. FALSE IMPRISONMENT;
B. CORRUPTION OF MINORS (TWO
COUNTS);
C. TERRORISTIC THREATS; AND
-3-
J-S67009-14
D. INDECENT ASSAULT, PERSON LESS
THAN 16.
In reviewing a challenge to the sufficiency of the evidence, our
standard of review is as follows:
As a general matter, our standard of review of
sufficiency claims requires that we evaluate the
record ‘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. Widmer, 560 Pa.
308, 744 A.2d 745, 751 (2000). ‘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.’ Commonwealth v.
Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).
Nevertheless, ‘the Commonwealth need not establish
guilt to a mathematical certainty.’ Id.; see also
Commonwealth v. Aguado, 760 A.2d 1181, 1185
(Pa. Super. 2000) (‘[T]he facts and circumstances
established by the Commonwealth need not be
absolutely incompatible with the defendant’s
innocence’). Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence
is so weak and inconclusive that, as a matter of law,
no probability of fact can be drawn from the
combined circumstances. See Commonwealth v.
DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).
The Commonwealth may sustain its burden by
means of wholly circumstantial evidence. See
Brewer, 876 A.2d at 1032. Accordingly, ‘[t]he fact
that the evidence establishing a defendant’s
participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled
with the reasonable inferences drawn therefrom
overcomes the presumption of innocence.’ Id.(quoting Commonwealth v. Murphy, 795 A.2d
1025, 1038–39 (Pa. Super. 2002)). Significantly, we
may not substitute our judgment for that of the fact
-4-
J-S67009-14
finder; thus, so long as the evidence adduced,
accepted in the light most favorable to the
Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a
reasonable doubt, the appellant’s convictions will be
upheld. See Brewer, 876 A.2d at 1032.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa.
Super. 2013)).
The argument section of Smith’s appellate brief consists of four
sections. See Smith’s Brief at 8-10. Each section addresses the four crimes
(false imprisonment, corruption of minors, terroristic threats, and indecent
assault) for which Smith challenges the sufficiency of the evidence. See id.In each section, Smith quotes the statutory provision that defines each of
the four crimes. See id. Following each statutory provision, Smith provides
approximately four to seven lines of argument in which he claims that the
witness testimony supporting his convictions for each crime is incredible,
unreliable, and contradictory. See id.This Court has consistently held that “credibility determinations are
made by the fact finder and that challenges thereto go to the weight, and
not the sufficiency, of the evidence.” Commonwealth v. Gaskins, 692
A.2d 224, 227 (Pa. Super. 1997); see also Commonwealth v. Gibbs, 981
A.2d 274, 281-82 (Pa. Super. 2009) (“An argument that the finder of fact
should have credited one witness’ testimony over that of another witness
-5-
J-S67009-14
goes to the weight of the evidence, not the sufficiency of the evidence.”).
Our Supreme Court has held that an “appellant’s challenge to the sufficiency
of the evidence must fail[,]” where an appellant phrases an issue as a
challenge to the sufficiency of the evidence, but the argument that appellant
provides goes to the weight of the evidence. Commonwealth v. Small,
741 A.2d 666, 672 (Pa. 1999); see also Gibbs, 981 A.2d at 281-82 (finding
that a sufficiency claim raising weight of the evidence arguments would be
dismissed).
Smith clearly confuses a challenge to the sufficiency of the evidence
with a challenge to the weight of the evidence. In his appellate brief, Smith
cites the standard of review for sufficiency of the evidence claims, challenges
the sufficiency of the evidence in the statement of questions involved, and
refers to the evidence in this case as “insufficient as a matter of law” in his
summary of the argument. See Smith’s Brief at 2, 4, 7. However, the
arguments that Smith makes throughout the rest of his brief pertaining to
witness credibility and reliability challenge the weight of the evidence, not its
sufficiency. Because Smith has raised sufficiency claims in which he
presents weight of the evidence arguments, his sufficiency claims must fail.5
See Small, 741 A.2d at 672.
5
We note that our rationale in reaching this conclusion differs from that of
the trial court. However, “[w]e can affirm the [trial] court’s decision if there
is any basis to support it, even if we rely on different grounds to affirm.”
-6-
J-S67009-14
Judgment of sentence affirmed.
Mundy, J. joins the Memorandum.
Fitzgerald, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2014
Commonwealth v. McLaurin, 45 A.3d 1131, 1138 (Pa. Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013).
-7-