Com. v. Smith, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EVAN SMITH,
Appellant No. 422 MDA 2014
Appeal from the Judgment of Sentence February 25, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000418-2012
BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 28, 2015
Evan Smith appeals from the judgment of sentence of thirty to sixty
years incarceration imposed by the trial court after a jury found him guilty of
numerous sex offenses relative to the sexual abuse of his two step-
daughters. After careful review, we affirm.
The facts of this matter first came to light on August 23, 2011, when
the mother of the victims informed police that Appellant, her estranged
husband, and the step-father to the victims, had been sexually abusing her
daughters, N.B. and K.B. The abuse began in approximately 2007 and
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*
Retired Senior Judge assigned to the Superior Court.
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continued until 2010. The two girls were twelve and eleven years of age
when the assaults started.1
Appellant used a ruse to strike fear into the victims and cause them to
engage in sexual activity with him. Prior to the beginning of the school year
in 2006, Appellant, the victims, and their mother moved into a home
together. Within a year of moving in, Appellant claimed that the house was
haunted by ghosts. He would write messages on the bathroom mirrors in
steam, stating, “Die Virgins,” assert that scratches on his body came from
the ghosts, and put a red substance on the walls. Appellant informed both
victims, though neither were aware of the abuse of the other, that a medium
named Melinda told him that the girls needed to perform sex acts with him
to stop the ghosts.
N.B. maintained that she was twelve when the first incident occurred.
She stated that Appellant informed her that the sexual activity would have
to take place on a specific date. On that day, she arrived home from school
and Appellant instructed her to take her clothes off. When Appellant
attempted to kiss N.B., she threw up in her hands. She pleaded with
Appellant not to have to perform oral sex. Appellant acquiesced but told her
that she would have to engage in sexual activity on another occasion.
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1
At the time of trial, N.B. was nineteen years of age and K.B. was seventeen
years old.
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Approximately one week later, Appellant made N.B. perform fellatio on
him. According to N.B., Appellant indicated that Melinda had told him that
the oral sex had worked. Nonetheless, within several months, Appellant
again used the ghost fabrication to induce sex from the victim. Appellant
informed N.B. that oral sex would not suffice and the two engaged in sexual
intercourse. N.B. related that vaginal intercourse occurred but that it was so
painful that Appellant began to have anal sex with her. She submitted that
ordinarily she would be wearing a bra when the abuse occurred, but
Appellant also made her wear leather skirts and boots.
Eventually, N.B. began to rebuff Appellant’s advances as she grew
older. Not dissuaded, Appellant told the victim that the ghosts would harm
his son, E.M.S., who had recently moved in with the family. E.M.S. was
eleven years old at the time. Accordingly, the abuse continued until
Appellant and the victims’ mother separated. N.B. admitted that she did not
tell anyone of the abuse until August 23, 2011, and that the last sex act
between her and Appellant transpired in 2010.
N.B.’s younger sister, K.B., testified similarly. K.B. stated that
Appellant told her that Melinda instructed him that the two would have to
engage in sex acts to prevent ghosts from harming the family. She added
that at the time she did not know how to perform oral sex and Appellant
taught her using a popsicle. Following Appellant’s instruction, Appellant
made K.B. perform oral sex on him. Appellant also maintained that he and
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K.B. had to have oral sex once a week to prevent the ghosts from growing
stronger.
Subsequently, Appellant progressed to other forms of sexual abuse.
K.B. provided that they attempted vaginal intercourse but it was too painful;
therefore, he began to have anal sex with the victim. Like her sister, she
stated that Appellant would sometimes make her dress up in boots and
pants with a hole in the crotch. K.B. indicated that the last time the abuse
occurred was in 2010.
K.B. told her best friend of the abuse shortly before revealing it to her
mother. K.B.’s best friend, Melanie, confirmed that K.B. told her about
Appellant’s actions. Melanie added that Appellant would make inappropriate
remarks to the girls and often spoke of ghosts. Within a week of informing
Melanie of the abuse, both K.B. and Melanie were in the car with the victim’s
mother. It was at this juncture that K.B. first revealed the abuse to her
mother. The victim’s mother immediately had K.B. contact N.B. to ask
whether Appellant had abused her. After N.B. admitted the abuse, the
victims’ mother telephoned police on the aforementioned date.
The victims’ mother also related that she discovered leather boots she
did not own, pornography, penis pumps, boxes of condoms, and a used
condom. The condom was located in a drop ceiling, but Appellant threw it in
the trash. Police discovered the leather boots, the used condom, and
spandex pants with the crotch removed in the home. On the outside of the
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condom was DNA from both Appellant and K.B. Police also found pictures of
the victims in leather apparel. Appellant’s own son, E.M.S., also confirmed
that his father frequently discussed ghosts, Melinda, and would touch the
victims’ buttocks and say sexual things to them. E.M.S. maintained that his
dad asked the victims to do stripper struts and have sex with Appellant. No
specific testimony was presented as to Appellant’s age.
The jury found Appellant guilty of two counts each of rape, rape of a
child, involuntary deviate sexual intercourse (“IDSI”), IDSI with a child, and
corruption of a minor. It also determined that he was guilty of four counts
of aggravated indecent assault and six counts of indecent assault. The court
imposed an aggregate sentence of thirty to sixty years incarceration. This
timely appeal ensued. However, trial counsel withdrew on that same date
and new counsel was appointed. The court directed counsel to file a concise
statement of errors complained of on appeal. After the granting of an
extension, Appellant complied. The trial court then authored its opinion.
The matter is now ready for our review. Appellant’s sole issue on appeal is
“Whether the evidence presented by the Commonwealth at trial was
insufficient as a matter of law to support the jury’s verdict, specifically with
respect to the age-based offenses of Aggravated Indecent Assault (two
counts), Indecent Assault (two counts), and Corruption of Minors.”
Appellant’s brief at 4.
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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.
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’s only argument is that, since the Commonwealth did not
introduce his date of birth or any evidence as to his specific age, the
evidence was insufficient to prove the crimes with an age component.
Appellant maintains that the Commonwealth had to prove that he was more
than four years older than the victims for one aggravated indecent assault
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count and two indecent assault charges and over eighteen years of age for
the corruption of minors counts.
The Commonwealth replies that the age of the defendant may be
proven by circumstantial evidence. It notes that the jury observed
Appellant, knew that he had been married to the victims’ mother, heard
testimony that the victims’ mother met him while he was working for an eye
doctor in Walmart, and that his own son was eleven years old at the time of
the crimes.
Here, we find that, because the jury had an opportunity to view
Appellant, see Commonwealth v. Miller, 657 A.2d 946, 947-948
(Pa.Super. 1995), and because his own son was eleven years old at the time
of the 2010 incidents, these facts preclude the possibility that Appellant was
under the age of eighteen. In order for Appellant to have been less than
eighteen, he would have been less than seven years old when his son was
born. Sufficient circumstantial evidence demonstrated that Appellant was an
adult at the time of the commission of the crimes. Thus, the corruption of
minors charges stand. Similarly, the evidence proved that Appellant was
more than four years older than the victims. The last sex acts occurred in
2010, when the victims were approximately fourteen and sixteen. We have
already concluded that Appellant was older than eighteen. To have been
under twenty years of age in 2010 would mean that Appellant fathered his
child at nine. Appellant’s claim is meritless.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2015
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