Com. v. Smith, K. ( 2023 )

J-A21015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH OWEN SMITH :
:
Appellant : No. 1459 EDA 2022
Appeal from the Judgment of Sentence Entered January 5, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000052-2020
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 20, 2023
Appellant Keith Owen Smith appeals from the judgment of sentence
imposed following his convictions for corruption of minors, indecent assault of
a person less than 13 years of age, unlawful contact with a minor, and
indecent assault by forcible compulsion.1 Appellant challenges the sufficiency
and weight of the evidence. We affirm.
The trial court summarized the relevant factual and procedural history
of this matter as follows:
[Appellant] proceeded to a waiver trial before [the trial court] on
January 5, 2022. Complainant N.B. testified that she lived with
her grandmother, [M.B.], and [M.B.’s] husband, [Appellant], in a
house across the street from N.B.’s elementary school, and that
[Appellant] sometimes watched N.B. alone. On one evening when
N.B. was 10 to 12 years old and home alone with [Appellant,
Appellant] asked N.B. to get on top of him while both were
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1 18 Pa.C.S. §§ 6301(a)(1)(i); 3126(a)(7); 6318(a)(1), and 3126(a)(2),
respectively.
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clothed, and [Appellant] then moved N.B.’s hips around so that
their genitals rubbed together in motions that N.B. described as
“like full sexual movement, but just with clothes on.” Afterward,
N.B. saw [Appellant] go into the bedroom’s en suite bathroom,
take his clothes off, and shower. She could see a white discharge
in [Appellant’s] clothes on the bathroom floor. N.B. did not tell
anyone what happened until she was 15 years old, when she
disclosed the incident to her school guidance counselor, Tahar
Sutton, then to M.B., and then to law enforcement. [The trial
court] deemed N.B.’s account to be credible, and [Appellant] was
convicted of corruption of minors, indecent assault of a person
less than 13 years old, unlawful contact with a minor, and indecent
assault by forcible compulsion.
[Appellant] was sentenced on January 5, 2022, to an aggregate
sentence of 1.5 to 3 years of incarceration, followed by 5 years of
reporting probation, which broke down as follows: two concurrent
sentences of 1.5 to 3 years of incarceration for unlawful contact
with a minor and indecent assault of a person less than 13 years
old, followed by 5 years of reporting probation for corruption of
minors, and no further penalty on indecent assault by forcible
compulsion because it merged with the other indecent assault
offense. [Appellant’s] lead offense of unlawful contact with a
minor carried an offense gravity score of 6, and [Appellant’s] prior
record score was 4, which generated a standard sentencing range
of 15 months to 21 months of incarceration, plus or minus 6
months. Thus, [Appellant’s] sentence is in the middle of the
standard sentence range.
Trial Ct. Ltr., 1/13/23, at 1-2 (citations omitted).
Prior to sentencing, Appellant filed a motion for extraordinary relief,
accompanied by a memorandum of law in support of his motion, wherein he
alleged that certain evidence was not presented to the trial court during trial.
See Appellant’s Mem. of Law in Supp. of Mot. for Extraordinary Relief and Mot.
for New Trial, 1/4/22. The trial court denied Appellant’s motion during the
sentencing hearing. See N.T. Sentencing Hr’g, 1/5/22, at 18. Appellant
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timely filed post-sentence motions on January 18, 2022.2 In his post-sentence
motions, Appellant, challenged the sufficiency and weight of the evidence. On
May 18, 2022, the trial court denied Appellant’s post-sentence motions by
operation of law.
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. In lieu of a Rule 1925(a) opinion, 3 the trial court issued
a letter to this Court addressing Appellant’s claims.
Appellant raises the following issues, which we have reordered as
follows:
1. Was not the evidence legally insufficient to establish indecent
assault of a person less than 13 years of age where the trial
judge found that the evidence established that the
complainant, as she testified, could have been anywhere from
10 to 13 years old at the time of the assault?
2. Did not the lower court err by improperly buttressing the
complainant’s testimony and abuse its discretion by not
granting [Appellant’s] post-sentence motion for a new trial
because the verdict was against the weight of the evidence?
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2 The tenth day following the imposition of the judgment of sentence fell on a
Saturday, January 15, 2022. Tuesday, January 18, 2022 represented the next
business day in which the courts were open, as Monday, January 17, 2022
was Martin Luther King, Jr., Day. Accordingly, Appellant’s post-sentence
motions were timely filed. See 1 Pa.C.S. § 1908.
3 We note that the Honorable Kai N. Scott presided over Appellant’s waiver
trial and imposed the instant judgment of sentence. While this appeal was
pending, Judge Scott resigned from the Court of Common Pleas of Philadelphia
County following her appointment to the United States District Court for the
Eastern District of Pennsylvania. Prior to her resignation from the Philadelphia
County Court of Common Pleas, Judge Scott sent a letter to this Court
addressing the claims raised in Appellant’s Rule 1925(b) statement.
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Appellant’s Brief at 3 (some formatting altered).
Sufficiency of the Evidence
In his first claim, Appellant challenges the sufficiency of the evidence
supporting his conviction for indecent assault of a person less than thirteen
years of age. Id. at 17. Specifically, Appellant argues that the
Commonwealth failed to establish beyond a reasonable doubt that N.B. was
less than thirteen years of age at the time that the indecent assault occurred.
Id. at 17-20. In support, Appellant contends that N.B. provided uncertain
testimony concerning her age at the time of the incident, which the trial court
acknowledged when rendering its verdict. Id. at 17-18. Therefore, Appellant
concludes that there was insufficient evidence to establish N.B.’s age and this
Court should vacate Appellant’s conviction for indecent assault. Id. at 20.
The Commonwealth argues that Appellant waived this issue, as he has
actually raised a weight claim. Commonwealth’s Brief at 7. Specifically, the
Commonwealth contends that Appellant “assails the weight that the [trial
court] placed on conflicting evidence of N.B.’s age.” Id. Based on our review
of the arguments of both parties, we find that Appellant has framed this issue
in a manner that directs this Court to review this issue under the sufficiency
of the evidence standard of review, as Appellant’s credibility argument directly
addresses the element of N.B.’s age that must be proven by the
Commonwealth beyond a reasonable doubt.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
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A challenge to the sufficiency of the evidence is a question of law,
subject to plenary review. When reviewing a sufficiency of the
evidence claim, the appellate court must review all of the evidence
and all reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. The Commonwealth need
not preclude every possibility of innocence or establish the
defendant's guilt to a mathematical certainty. 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. Nellom, 234 A.3d 695, 700 (Pa. Super. 2020) (citations
omitted).
“It is axiomatic that the Commonwealth must prove each element of
[the] crime [charged] beyond a reasonable doubt.” Commonwealth v.
Walzack, 360 A.2d 914, 917 (Pa. 1976) (citations omitted). “The
Commonwealth may sustain its burden by means of wholly circumstantial
evidence, and we must evaluate the entire trial record and consider all
evidence received against the defendant.” Commonwealth v. Miklos, 159
A.3d 962, 967 (Pa. Super. 2017) (citation omitted). This burden, however,
does not require the Commonwealth to preclude every possibility of
innocence. Commonwealth v. Steele, 234 A.3d 840, 845 (Pa. Super. 2020).
“Any doubt raised as to the accused’s guilt is to be resolved by the factfinder.”
Commonwealth v. Akhmedov, 216 A.3d 307, 322 (Pa. Super. 2019) (en
banc) (citation omitted and formatting altered). It is the sole province of the
factfinder to assess credibility, and the factfinder is free to believe all, some,
or none of the evidence presented. Commonwealth v. Fortson, 165 A.3d
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10, 15 (Pa. Super. 2017). This Court “will not disturb the verdict 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.” Akhmedov, 216 A.3d
at 322 (citation omitted and formatting altered).
The Crimes Code defines indecent assault of a person less than thirteen
years of age as when a “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[,]” the complainant is less than thirteen years of age. 18
Pa.C.S. § 3126(a)(7).
In the instant case,4 the trial court noted the following:
N.B. did state early in her testimony that the incident with
[Appellant] occurred when she was “between the age of 10 and
13.” [N.T. Trial, 9/13/21,] at 15-16. However, in reviewing the
record, the [trial court] has concluded that N.B. was no older than
11 years old, if the [trial court] is permitted to take judicial notice
of regular school pacing, and to infer that N.B. went through
school at a regular pace.[FN4] N.B. testified that she moved to her
grandmother’s house “in the middle of 2nd grade” when she was
about 7 years old. See id. at 13. This was consistent with
[M.B.]’s testimony that N.B. moved in when N.B. was “probably
about 7.” Id. at 50. N.B. moved to her grandmother’s house
because it was across the street from N.B.’s elementary school,
which she attended from second grade to fifth grade. Id. at 14-
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4 In its letter to this Court, the trial court explained that it concluded that N.B.
was no older than 11 years old at the time of the incident based on what the
trial court referred to as “regular school pacing,” which would have placed
N.B. in seventh grade at the time she turned thirteen years of age. Trial Ct.
Ltr. at 3 n.4.
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15, 49. N.B. stated that on the day after the incident, she
attended elementary school at the school across the street. See
id. at 19. Moreover, N.B. testified that the elementary school only
went up to fifth grade. See id. at 23. N.B. claimed that she
moved out of her grandmother’s house in the beginning or middle
of sixth grade, see id. at 15, which the [trial court] calculates as
the 2015 to 2016 school year. This was consistent with part of
[M.B.’s] testimony, which was that the family moved from that
house in 2015. See id. at 52. According to this math, even if
N.B. incorrectly testified that she went to elementary school
across the street the day after the incident, if she moved out of
that house in the beginning or middle of sixth grade or in 2015,
N.B. was 11 or 12 years old (her 12th birthday was on December
12, 2015). Thus, there is sufficient evidence that [Appellant]
committed indecent assault against a person less than 13 years
old.
[FN4] This is not always a valid inference to make. However,
in this particular case, the [trial court] found that there were
enough data points to make that inference: N.B. testified
that at the time of her testimony on September 13, 2021,
she was 17 years old and a senior in high school, and that
she was born on December 12, 2003. See [id.] at 12-13.
High school seniors in Philadelphia who attend kindergarten
through 12th grade at a regular pace graduate when they
are 17 or 18 years old. N.B. testified that she was “in the
middle of second grade” and around 7 years old when she
moved into her grandmother’s house, which is consistent
with regular school pacing. See id. at 13-14. No evidence
was presented that N.B. was held back in school sometime
between second grade and sixth grade, and then later
returned to a regularly paced school schedule. Thus, the
[trial court] inferred that N.B. was ages 7 to 8 in second
grade, 8 to 9 in third grade, 9 to 10 in fourth grade, 10-11
in fifth grade, 11 to 12 in sixth grade, and 12 to 13 in
seventh grade.
Trial Ct. Ltr. at 3-4 (some footnotes omitted).
Following our review of the record and viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, we conclude that the
Commonwealth presented sufficient evidence to establish that N.B. was under
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thirteen years of age at the time of the incident with Appellant. See Nellom,
234 A.3d at 700. As we have noted, the factfinder is free to believe all, or
part, or none of the evidence presented. See id. Here, although the trial
court expressed some uncertainty regarding the evidence presented
concerning N.B.’s age at the time of the incident, 5 on this record, it was
reasonable for the trial court to infer that N.B. was under 13 years old when
viewing the trial evidence in the light most favorable to the Commonwealth.
See Steele, 234 A.3d at 845; Nellom, 234 A.3d at 700; Fortson, 165 A.3d
at 15; Miklos, 159 A.3d at 967. The trial court, as the factfinder in a bench
trial, was tasked with resolving doubt as to Appellant’s guilt, and we conclude
that the Commonwealth’s evidence was not so weak and inconclusive that, as
a matter of law, no probability of fact could be drawn from the combined
circumstances. See Akhmedov, 216 A.3d at 322. For these reasons,
Appellant is not entitled to relief.
Weight of the Evidence
In his remaining claim, Appellant contends that the trial court’s verdict
was against the weight of the evidence. Appellant’s Brief at 12-17.
Specifically, Appellant argues that N.B.’s testimony “was inconsistent in critical
places, both inconsistent with itself and inconsistent with her prior testimony.”
Id. at 12. Additionally, Appellant claims that the trial court improperly
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5 See N.T. Trial at 71; see also Trial Ct. Ltr. at 3-4.
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bolstered N.B.’s testimony “by concluding that [N.B.’s] trial testimony must
have been consistent with her testimony at the preliminary hearing.” Id.
The Commonwealth argues that Appellant waived his weight-of-the-
evidence claim because he failed to raise it with sufficient specificity in his
post-sentence motion pursuant to Pa.R.Crim.P. 607(A). Commonwealth’s
Brief at 5.
When reviewing the denial of a motion for a new trial based on weight
of the evidence, we are governed by the following standard of review:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that 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.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court. 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. Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017)
(citations omitted). As this Court has repeatedly stated,
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. Resolving contradictory
testimony and questions of credibility are matters for the finder of
fact. It is well-settled that we cannot substitute our judgment for
that of the trier of fact.
* * *
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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 against the weight of the evidence. 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.
Furthermore, in 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.
Commonwealth v. Spence, 290 A.3d 301, 311 (Pa. Super. 2023) (citations
omitted and formatting altered).
Before we can reach the merits of Appellant’s weight-of-the-evidence
claim, we must first determine whether he properly preserved the issue for
our review. The Pennsylvania Rules of Criminal Procedure require that a
challenge to the weight of the evidence must be presented to the trial court
in the form of either an oral or written motion prior to sentencing or in a post-
sentence motion. Pa.R.Crim.P. 607(A). An appellant, however, cannot raise
an alternate weight of the evidence theory for the first time on appeal.
Commonwealth v. Jones, 191 A.3d 830, 835 (Pa. Super. 2018). Any new
legal theories raised for the first time on appeal are waived on appeal. Id.In the instant case, the record reflects that Appellant timely filed a post-
sentence motion. Therein, Appellant argued that the trial court’s verdict
“shocks the conscience because no credible evidence was presented, and the
witnesses’ testimony was vague, not subject to verification by any extrinsic
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evidence.” Appellant’s Post-Sentence Mot., 1/18/22, at 2-3 (unpaginated).
On appeal, Appellant raises the following argument:
[The complaining] witness was uncertain as to when the incident
occurred—she could have been anywhere from 10 to 13 years of
age. There was no corroborative evidence. There was no physical
evidence. There was no prompt compliant witness. The testimony
of N.B. was inconsistent in critical places, both inconsistent with
itself and inconsistent with her prior testimony. In finding N.B.
credible, the [trial] court improperly bolstered her testimony by
concluding her trial testimony must have been consistent with her
testimony at the preliminary hearing.
* * *
In evaluating the weight of the evidence claim, the [trial] court
revealed that [its] verdict was based upon the improper bolstering
of [N.B.’s] testimony. [N.B.’s] testimony was vague and
uncertain. Even when the alleged assault occurred was unclear.
Appellant’s Brief at 12, 16. Based on our review of the record, we find that
Appellant has not raised a new legal theory on appeal, and we shall proceed
to review Appellant’s claim on the merits. See Jones, 191 A.3d at 835.
Instantly, in rejecting Appellant’s weight-of-the-evidence claim, the trial
court explained:
The [trial court] emphasized that it is particularly difficult to
litigate cases involving sexual offenses that involve delayed
disclosures, and that there was a relatively broad time period in
which this particular incident occurred. The [trial court] also noted
that there were some minor inconsistencies between N.B.’s
preliminary hearing testimony and her trial testimony regarding
when the assault could have happened or how long it happened.
However, the [trial court] concluded that because it did not hear
much additional impeachment about the preliminary hearing,
N.B.’s testimony was consistent overall. The [trial court] also
noted that although the [trial court] did not hear what N.B.
specifically disclosed to Mr. Sutton and her grandmother, there
was no impeachment about the circumstances of those
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disclosures, either. Additionally, the [trial court] reasoned that
N.B. did not have any motivation for fabrication or bias in this case
and “did not pick up any sort of negative feeling [that N.B. even
held] toward [Appellant], even though this is alleged to have
happened when she was 10 or 11.” Finally, the [trial court] noted
that although there was no physical evidence that the crimes
occurred, a complainant’s credible testimony alone is enough to
convict a defendant. Therefore, the [trial court] carefully weighed
N.B.’s account and concluded that N.B. had credibly and truthfully
testified that [Appellant] committed these crimes against her, and
the limited impeachment through her inconsistent statements and
lack of corroborative evidence did not provide reasonable doubt in
this case. This verdict was not against the weight of the evidence.
Trial Ct. Ltr. at 2-3 (citations omitted; some brackets in original).
Based on our review of the record, we discern no abuse of discretion by
the trial court in denying Appellant’s weight claim. See Windslowe, 158 A.3d
at 712. Indeed, the trial court explicitly stated that despite some “minor
inconsistencies” in N.B.’s trial testimony when compared to her testimony at
the preliminary hearing, N.B. testified credibly at trial. We note that credibility
determinations are exclusively within the province of the factfinder, and we
cannot substitute our judgment for the factfinder. See Spence, 290 A.3d at
311. Therefore, Appellant is not entitled to relief. Accordingly, we affirm.
Judgment of sentence affirmed. Jurisdiction relinquished.
Date: 11/20/2023
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