Com. v. Smith, J.

J-A07016-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES SMITH :
:
Appellant : No. 115 EDA 2022
Appeal from the Judgment of Sentence Entered November 15, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001692-2021,
CP-51-CR-0002286-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES SMITH :
:
Appellant : No. 116 EDA 2022
Appeal from the Judgment of Sentence Entered November 15, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001692-2021,
CP-51-CR-0002286-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 26, 2023
James Smith appeals from the judgment of sentence following his
convictions for rape of a child, unlawful contact with a minor, corruption of
minors, involuntary deviate sexual intercourse with a child, and aggravated
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indecent assault of a person less than 13 years of age.1 He challenges the trial
court’s exclusion of a proposed voir dire question and the sufficiency of the
evidence to sustain his conviction for unlawful contact with a minor. We affirm.
The trial court summarized the facts in this case as follows:2
Under docket CP-51-CR-0002286-2020, M.B. (born December 3,
2011) testified to the following facts. M.B. lived with her mother[];
her grandfather []; her sister, [J.]; and her younger brother, [L.].
At one point, M.B.’s friend A.G. and A.G.’s mother also lived in the
same house. [Smith] frequently visited the home. M.B. knew
[Smith] as a close friend of her mother’s and called him, “Uncle
James.” [Smith] often took M.B., his son, A.G., and [L.] to the
park and to the store alone.
M.B. recalled the first time [Smith] made her feel uncomfortable.
[Smith] played games with the children, one of which involved
physically lifting up the kids and throwing them onto the couch.
When [Smith] lifted M.B. into the air, he did not throw her on the
couch, but instead touched her vagina. [Smith] repeated this
pattern of behavior throughout the house.
On a separate occasion, [Smith] grabbed M.B. from the living
room and led her into the kitchen. [Smith] laid M.B. on top of a
freezer and pulled down her pants. [Smith] then took off his pants
and inserted his penis into her vagina. M.B. testified that she felt
pain when [Smith] inserted his penis into her vagina, but neither
M.B. nor [Smith] said anything to each other.
On several occasions, [Smith] performed oral sex on both M.B.
and A.G. in the basement of the house. One day, [Smith] followed
M.B., A.G., [L.], and his children to the basement to watch the
kids play basketball. M.B. and A.G. sat on a three-to-four-foot-
high black table. [Smith] approached the young girls and pulled
down their pants. [Smith] proceeded to take his pants off and
performed oral sex on both girls. Neither girl[] nor [Smith] spoke
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1 18 Pa.C.S.A. §§ 3121(c), 6318(a)(1), 6301(a)(1)(ii), 3123(b), and
3125(a)(7), respectively.
2Smith adopted the court’s factual summary for purposes of this appeal. See
Smith’s Br. at 6.
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to one another. M.B. testified that this happened several times,
and on one occurrence, [Smith] inserted his penis inside M.B.’s
vagina. On another occasion, [Smith] inserted his penis into A.G.
while M.B. sat next to her on the table. M.B. further testified that
this happened several times.
[Smith’s] last attempted incident with M.B. occurred on A.G.’s
eighth birthday. On A.G.’s eighth birthday, M.B.’s mother left the
house to run errands, leaving M.B., [L.], [J.], and [J.]’s friend
behind in the house. [Smith] came to the house, picked up M.B.
and led her upstairs to her mother’s room. [Smith] closed the door
and tried to pull down M.B.’s pants. M.B. kicked [Smith] away
from her and told him to stop. M.B. told [Smith] that she was
going to call her mom to which he replied, “I’ll tell her for you.”
M.B. went into her room, grabbed her phone, and cried as she
texted her mother to tell her about [Smith’s] actions.
Under docket CP-51-CR-000169-2021, A.G. (born March 19,
2012) testified to the following facts. For some time, A.G. lived. .
. with her mother, M.B., M.B.’s mother, M.B.’s grandfather, M.B.’s
sister, and M.B.’s brother. A.G. lived at the house until she turned
eight years old. A.G. and M.B. are best friends, describing their
relationship as “like sisters.” While A.G. lived at the house,
[Smith], who A.G. also identified as “Uncle James,” often visited
the home. A.G. said [Smith] treated her like his own niece, even
though [Smith] was not related to her. When [Smith] visited the
house, he played with A.G. by picking her up in the air and playing
hide-and-seek with her.
A.G. remembered that [Smith] started to do things that made her
feel uncomfortable and that she did not understand. These things
took place in the basement of the house, in M.B.’s grandfather’s
room, and M.B.’s mother’s room. In the living room, [Smith] threw
A.G. into the air and performed oral sex on her. This happened
several times.
On another occasion, A.G. recalled being in the basement
watching the other children play basketball. While both girls sat
on his lap, [Smith] touched their vaginas, and penetrated A.G.’s
vagina with his finger. A.G. remembered another time when
[Smith] told her to get onto the black table, where she laid down
on her stomach. [Smith] then pulled A.G.’s pants down and
performed anal sex on her. During another time in the basement,
[Smith] asked and tried to put his penis into A.G.’s mouth.
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A.G. testified that she saw [Smith] also do these things to M.B.
More than once, A.G. saw [Smith] insert his penis into M.B.’s
vagina while M.B. laid on her back on the basement table. A.G.
also testified that [Smith] tried to make M.B. perform oral sex on
him. [Smith] took his penis out of his pants and “would just show
it.” [Smith] then told M.B. to lick his penis.
On A.G.’s eighth birthday, A.G. and her mother went to M.B.’s
house where they saw police outside. After going inside of the
house, A.G.’s mother came back to the car and asked A.G.
whether [Smith] touched her. A.G. answered “yes.”
Trial Court Opinion, filed June 1, 2022, at 1-4 (citations to trial transcript and
footnote omitted).
Prior to trial, Smith submitted proposed voir dire questions to the trial
court, including the question, “Are you more likely to believe the testimony of
a child alleging sexual abuse because you do not believe a child could lie about
sexual abuse?” The Commonwealth objected to that question. N.T., 6/22/21,
at 9. The trial court agreed with the Commonwealth and excluded that
question from jury selection. Id. at 10.
After a jury trial, Smith was convicted of the above-referenced offenses.
He was sentenced to an aggregate term of 30 to 60 years’ incarceration
followed by 10 years’ probation. This appeal followed.
Smith raises the following two issues:
1. Did not the trial court deprive [Smith] of his right to a fair and
impartial jury by refusing to ask prospective jurors on voir dire
whether they believed a child could lie about being sexually
abused, which prevented [Smith] from potentially uncovering
prejudicial biases or fixed opinions that would have disqualified
jurors from serving?
2. Was not the evidence insufficient to convict [Smith] of both
counts of 18 Pa.C.S.[A] § 6318, unlawful contact with a minor,
where there was no evidence that he had any contact or
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communication with the two children as contemplated by the
statute?
Smith’s Br. at 3.
First, Smith argues that the trial court’s exclusion of his proposed voir
dire question violated his right to a fair and impartial jury. Smith’s Br. at 13.
He notes that the Commonwealth’s entire case hinged on M.B. and A.G.’s
testimony, which was uncorroborated by physical or medical evidence. Id. at
10. Therefore, he argues that the jury’s verdict would necessarily rest on its
evaluation of the victims’ credibility. Id. Smith contends that he had the right
to explore whether any prospective jurors had a preconceived belief that a
child would not lie about being sexually abused. Id. at 14-15. He emphasizes
that allegations of child sexual abuse, such as those in this case, may carry
significant emotional impact which may make a juror incapable of rendering a
fair verdict. Id. at 14. Smith further argues that certain jurors may be
predisposed to credit a child victim’s testimony simply because of the victim’s
young age. Id. He thus maintains that the court erred by failing to pose his
proposed question or make a comparable inquiry. Id. at 20.
The purpose of voir dire is to aid the empaneling of a “competent, fair,
impartial, and unprejudiced jury[.]” Commonwealth v. Holt, 273 A.3d 514,
546 (Pa. 2022) (citation omitted). “The decision on whether or not counsel
may propose their own questions of potential jurors during voir dire is a matter
left solely within the discretion of the trial court.” Commonwealth v.
Paolello, 665 A.2d 439, 451 (Pa. 1995). The trial court’s decision “will not be
reversed on appeal absent palpable error.” Holt, 273 A.3d at 547. “[V]oir dire
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is not to be used to attempt to ascertain a prospective juror’s present
impressions or attitudes.” Commonwealth v. Ritter, 615 A.2d 442, 447
(Pa.Super. 1992) (citation omitted). Nor may attorneys use it “to ascertain
the effectiveness of potential trial strategies.” Paolello, 665 A.2d at 451.
Here, the trial court found that the proposed voir dire question was
improperly intended to gain insight into the juror’s present impressions about
how they would weigh M.B. and A.G.’s testimony. Trial Ct. Op. at 10-11. The
court found that because it gave prospective jurors a proper instruction during
voir dire on how to evaluate witness credibility, no error occurred from its
refusal to allow Smith’s proposed question. Id. at 11.
The trial court did not abuse its discretion in excluding Smith’s proposed
question. The question wholly involved the victims’ credibility, was essentially
argumentative, and impermissibly sought to gauge jurors’ receptiveness to
possible defense strategies. See Ritter, 615 A.2d at 447; Paolello, 665 A.2d
at 451. Moreover, the court’s other questions and statements to potential
jurors adequately addressed concerns about prospective jurors’ ability to be
impartial. The court informed the members of the panel that they would be
asked to determine if witnesses were “telling the truth, lying or simply
mistaken.” N.T., 6/22/21, at 15. It explained that they would do so
“considering what were their opportunities to see, hear or understand a
particular fact or incident and determine if a witness is credible,” and that they
were to do so using “the same standard for everyone, regardless of a person’s
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status of what they do for a living.” Id.3 It then advised them that Smith was
charged with sexually abusing two children between the ages of six and eight
and asked if they could be fair and impartial considering the nature of the
charges. Id. at 20-22. Smith offers no authority mandating that courts ask
prospective jurors whether they believe a victim of a particular category of
crime could lie, and we are aware of none. Instead, he cites cases upholding
challenges to the denial of voir dire questions relating to potentially
controversial social issues, such as racial and law enforcement prejudice, tort
reform, and sexual orientation, that could affect jurors’ overall ability to be
impartial. Accordingly, the court did not abuse its discretion in excluding
Smith’s question from voir dire.
Smith next argues that the evidence was insufficient to support his
conviction for unlawful contact with a minor under 18 Pa.C.S.A. § 6318.4
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3 The court stated:
You will be asked to evaluate the credibility of the testimony of
witnesses as to their truthfulness and accuracy. In other words,
you will determine if they’re telling the truth, lying or simply
mistaken.
You will do this considering what were their opportunities to see,
hear or understand a particular fact or incident and determine if a
witness is credible[. Y]ou are to use the same standard for
everyone, regardless of a person’s status of what they do for a
living.
N.T., 6/22/21, at 15.
4 Smith does not challenge the sufficiency of the evidence underlying his
remaining convictions. See Smith’s Br. at 20.
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Smith’s Br. at 20. He maintains that the statute “punishes communications
aimed at enticing a minor to engage in sexual acts” and he “communicated
nothing to the [victims] for the purpose of luring them or enticing them
sexually before he abused them repeatedly.” Id. at 11. Smith argues the only
times he uttered any words to M.B. and A.G. “were after he had already
sexually assaulted each of them multiple times.” Id. at 21. He states that the
crime of unlawful contact with a minor “is complete at the time of the
communication and is distinct from subsequent sexual assaults or attempts.”
Id. at 11-12. Otherwise, according to Smith, the statute results in virtually
every individual who sexually assaults a child being automatically guilty of the
additional crime of unlawful conduct with a minor. Id. at 25.
Our standard of review when reviewing a challenge to the sufficiency of
the evidence is de novo, while “our scope of review is limited to considering
the evidence of record, and all reasonable inferences arising therefrom,
viewed in the light most favorable to the Commonwealth as the verdict
winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014).
“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. Widmer, 744
A.2d 745, 751 (Pa. 2000). The trier of fact is free to believe, all, part, or none
of the evidence presented when making credibility determinations.
Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa.Super. 2016). “[T]his
Court may not substitute its judgment for that of the factfinder, and where
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the record contains support for the convictions, they may not be disturbed.”
Commonwealth v. Smith, 146 A.3d 257, 261 (Pa.Super. 2016).
The crime of unlawful contact with a minor is defined, in relevant part,
as intentional contact with a minor “for the purpose of engaging in” certain
prohibited activity:
(a) Offense defined.--A person commits an offense if he is
intentionally in contact with a minor, or a law enforcement officer
acting in the performance of his duties who has assumed the
identity of a minor, for the purpose of engaging in an activity
prohibited under any of the following, and either the person
initiating the contact or the person being contacted is within this
Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating
to sexual offenses).
18 Pa.C.S.A. § 6318(a)(1).
The statute defines “contacts” as “[d]irect or indirect contact or
communication by any means”:
Direct or indirect contact or communication by any means,
method or device, including contact or communication in person
or through an agent or agency, through any print medium, the
mails, a common carrier or communication common carrier, any
electronic communication system and any telecommunications,
wire, computer or radio communications device or system.
18 Pa.C.S.A. § 6318(c).
The “contact” element can be satisfied by communication, either verbal
or non-verbal, and the statute does not require that events occur in any
particular sequence. That is, the “contact” may occur before, at the beginning
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of, or during other conduct, so long as it is “for the purpose of engaging in”
an enumerated offense:
[T]he crime of [u]nlawful [c]ontact with a [m]inor focuses on
communication, verbal or non-verbal, and does not depend upon
the timing of the communication. Thus, it matters not whether the
communication occurred at the outset of or contemporaneously
with the contact; once the communicative message is relayed to
a minor, the crime of unlawful contact is complete. Thus, the
statute is best understood as “unlawful communication with a
minor,” for by its plain terms, it prohibits communication with a
minor for the purpose of carrying out certain sex acts.
Commonwealth v. Davis, 225 A.3d 582, 587 (Pa.Super. 2019) (emphasis
in original) (internal citation omitted).
Here, the court found the evidence was sufficient to sustain Smith’s
conviction for unlawful contact with a minor as to M.B. It determined that
Smith instructing M.B. to perform oral sex on him, physically taking M.B. to
another room to perform sexual acts on her, taking her clothes off, and taking
his clothes off constituted verbal and non-verbal communications for the
specific purpose of engaging in sexual conduct with a child. Trial Ct. Op. at 9.
Similarly, the court found the evidence was sufficient to support Smith’s
conviction for unlawful contact with a minor as to A.G. Id. A.G. testified that
Smith told her to lay on a table on her stomach and then he anally raped her.
Id. Smith also instructed A.G. to perform oral sex on him. Id. The court found
that Smith’s “commands were verbal precursors to illicit sexual acts with
A.G.[,]” and his “actions clearly demonstrate[d] the type of communication
and contact covered under the statute.” Id.- 10 -
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Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, we find that the evidence was sufficient to prove that Smith
communicated with the victims both verbally and physically for the purpose
of engaging in illegal sexual activities. By his own admission in his appellate
brief, Smith asked both M.B. and A.G. to perform oral sex on him and told A.G
to lay on a table immediately before sexually assaulting her. See Smith’s Br.
at 21. These statements demonstrate the type of communication
contemplated by the statute.
Smith’s argument that application of Section 6318 results in virtually
every individual who sexually assaults a child being automatically guilty of the
additional crime of unlawful conduct with a minor is erroneous. This Court has
held that evidence that a defendant engaged in sexual contact with a minor,
by itself, is insufficient to support an unlawful contact with a minor conviction.
See Commonwealth v. Leatherby, 116 A.3d 73, 80 (Pa.Super. 2005)
(vacating unlawful contact with a minor conviction as to minor who testified
only that defendant came into her room and touched her breasts and buttocks
without saying anything).5 Rather, to sustain a conviction under Section 6318,
the defendant must have been in some contact or communication with the
victim for the purpose of engaging in specified prohibited conduct. Here, the
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5 See also Commonwealth v. Letham, No. 1259 WDA 2020, 2022 WL
122460, at *4 (Pa.Super. filed January 13, 2022) (unpublished mem.)
(vacating unlawful contact with a minor conviction where evidence was that
defendant came into a room where minor was standing and immediately
grabbed her breasts without saying anything or positioning her in anyway).
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evidence established Smith communicated with M.B. and A.G. for the purpose
of sexually assaulting them. Therefore, the evidence was sufficient to prove
the “contact” element of the crime of unlawful contact with a minor. Smith’s
sufficiency claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2023
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