Com. v. Sweeney, W.

J-A17039-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WILLIAM WESLEY SWEENEY Appellant No. 2558 EDA 2015 Appeal from the Judgment of Sentence July 9, 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0007866-2013 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.* MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 07, 2016 Appellant, William Wesley Sweeney, appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas, following his bench trial convictions for five counts of criminal attempt (related sexual offenses), five counts of criminal solicitation (related sexual offenses), and one count each of unlawful contact with minor, and criminal use of communication facility.1 We affirm. In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case; so, we will not restate them. Appellant raises the following issues for our review: ____________________________________________ 1 18 Pa.C.S.A. §§ 901(a), 902(a), 6318(a)(1), and 7512(a), respectively. _____________________________ *Retired Senior Judge assigned to the Superior Court. J-A17039-16 WAS THERE SUFFICIENT EVIDENCE PRESENTED AT THE TIME OF TRIAL TO CONVICT [APPELLANT] OF CRIMINAL ATTEMPT PHOTOGRAPHS/FILMS/DEPICTION ON COMPUTER SEX ACT—CHILD, CRIMINAL SOLICITATION IDSI PERSON LESS THAN SIXTEEN YEARS OF AGE, CRIMINAL SOLICITATION STATUTORY SEXUAL ASSAULT, CRIMINAL SOLICITATION CORRUPTION OF MINORS, CRIMINAL SOLICITATION INDECENT ASSAULT ON PERSON LESS THAN SIXTEEN YEARS OF AGE, CRIMINAL SOLICITATION PHOTOGRAPHS/FILMS/DEPICTION ON COMPUTER SEX ACT—CHILD, UNLAWFUL CONTACT WITH MINOR, AND CRIMINAL USE OF COMMUNICATION FACILITY? WAS THE GUILTY VERDICT AS TO THE CHARGES OF CRIMINAL ATTEMPT PHOTOGRAPHS/FILMS/DEPICTION ON COMPUTER SEX ACT—CHILD, CRIMINAL SOLICITATION [IDSI] PERSON LESS THAN SIXTEEN YEARS OF AGE, CRIMINAL SOLICITATION STATUTORY SEXUAL ASSAULT, CRIMINAL SOLICITATION CORRUPTION OF MINORS, CRIMINAL SOLICITATION INDECENT ASSAULT ON PERSON LESS THAN SIXTEEN YEARS OF AGE, CRIMINAL SOLICITATION PHOTOGRAPHS/FILMS/DEPICTION ON COMPUTER SEX ACT—CHILD, UNLAWFUL CONTACT WITH MINOR, AND CRIMINAL USE OF COMMUNICATION FACILITY AGAINST THE WEIGHT OF THE EVIDENCE? WAS THE TRIAL COURT IN ERROR FOR DENYING [APPELLANT’S] MOTION IN LIMINE AS TO THE REQUESTED EXCLUSION OF EVIDENCE OF A CRAIGSLIST ADVERTISEMENT? WAS THE TRIAL COURT IN ERROR IN ALLOWING EVIDENCE TO BE PRESENTED AT THE HEARING PURSUANT TO THE COMMONWEALTH’S 404(B) MOTION AS TO PURPORTED STATEMENTS MADE WHEN THOSE INDIVIDUALS SUPPOSEDLY MAKING SAID STATEMENTS WERE NOT PRESENT IN COURT? WAS THE TRIAL [COURT] IN ERROR IN GRANTING THE COMMONWEALTH’S 404(B) MOTION? (Appellant’s Brief at 5). -2- J-A17039-16 After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable James P. Bradley, we conclude Appellant’s issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed September 30, 2015, at 2-14) (finding: (1 and 2) Sgt. Smith conducts undercover investigations and pursues Craigslist postings and responds to postings, which appear to be seeking sex with underage children; Sgt. Smith posed as “Sammy,” 15-year- old boy, in response to ad entitled “Sunday Funday in Delco─33 (Aston/Lima)”; ad stated: “Looking for some fun (mutual oral) at my place today. I am looking for someone under 25, white, thin/athletic, D/D Free, and likes to get sucked and suck too…”; Sgt. Smith took “screen shot” of ad and initiated contact with Appellant on 10/20/13 through e-mail; Appellant asked “Sammy” for pictures, but “Sammy” replied he was 15 and “new at this” and did not want his mom to see communications; when Appellant asked if “Sammy” was affiliated with law enforcement, “Sammy” replied he had to finish homework and ended conversation that day; on 10/22/13, Sgt. Smith e-mailed Appellant image of fellow officer from when officer was 15 years old; Appellant continued to communicate with “Sammy” in following days via e-mail and text, sent pictures of himself, and suggested they meet; Appellant told “Sammy” he likes to give oral and asked “Sammy” to send a “cock pic”; Appellant provided “Sammy” with directions to meeting location; -3- J-A17039-16 when Appellant arrived at meeting location, Sgt. Smith immediately recognized Appellant from his pictures; officers detained Appellant; Appellant admitted he posted ad on Craigslist but claimed he was only seeking “workout partner”; Appellant denied exchanging any e-mails referencing sexual activity or posting the language accompanying ad seeking “mutual oral”; search warrant on Appellant’s home revealed computer from which Appellant communicated with “Sammy”; expert testified Craigslist identification number assigned to ad was same number attached to e-mail exchange; Commonwealth presented sufficient evidence Appellant attempted to commit IDSI with 15-year-old boy; Appellant’s continued communication with “Sammy” after posting ad shows Appellant took “substantial step” toward completing IDSI by appearing at designated location to meet “Sammy”; verdict was not against weight of evidence;2 (3) ____________________________________________ 2 In its opinion at page 4, footnote 1, the trial court notes Appellant’s Rule 1925(b) statement sets forth a general claim of insufficiency for all charges, but Appellant failed to identify which elements of which offenses had not been satisfied. The trial court could have waived the issue for vagueness. See Commonwealth v. Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007) (stating Rule 1925(b) statement that is not specific enough for trial court to identify and address issues Appellant wishes to raise on appeal may result in waiver); Commonwealth v. Williams, 959 A.2d 1252, 1257-58 (Pa.Super. 2008) (stating to preserve claim that evidence was insufficient to sustain conviction, appellant must specify allegedly unproven element or elements in his Rule 1925(b) statement, or face waiver of claim). Instead of waiving Appellant’s claim entirely, the court concluded Appellant’s issue related to an alleged insufficiency of the evidence to prove intent and a substantial step toward the commission of IDSI. The court drew Appellant’s specific sufficiency claim (Footnote Continued Next Page) -4- J-A17039-16 Craigslist ad was properly authenticated through Sgt. Smith’s testimony that ad produced at trial was same ad Sgt. Smith documented on 10/20/13; Sgt. Smith had personal knowledge to testify ad is what Commonwealth claimed it was; ad was also not admitted to prove truth of matter asserted but to show Sgt. Smith’s subsequent course of conduct in initiating contact with Appellant; (4 and 5) prior to trial, Commonwealth gave notice of its intent to introduce evidence from two witnesses regarding events, which transpired in separate instances between Appellant and each witness; following pretrial hearing, pretrial court ruled testimony from designated witnesses was admissible for limited purpose of proving Appellant’s intent in communicating with “Sammy” was to engage in sex with underage boy; notwithstanding pretrial evidentiary ruling, at trial, court heard witnesses’ testimony but decided it was irrelevant and unreliable and disregarded it in toto; to extent admission of evidence was improper, it constituted harmless error3). The record supports the court’s decision, and we affirm on the basis of the trial court opinion. Judgment of sentence affirmed. _______________________ (Footnote Continued) from his motion for judgment of acquittal. See Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d 1058 (2007) (stating court can review issue despite vague Rule 1925(b) statement, where court readily apprehends appellant’s claim and thoroughly addresses it in opinion). 3 See Commonwealth v. Smith, 97 A.3d 782 (Pa.Super. 2014) (stating: “[A] trial court, acting as the finder of fact, is presumed to know the law, ignore prejudicial statements, and disregard inadmissible evidence”). -5- J-A17039-16 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/7/2016 -6- Circulated 09/30/2016 03:39 PM ·~ IN THE COURT OF COMMON PLEASOF DELAWARECOUNTY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA CP-23-CR- 7866-2013 vs. WILLIAM W. SWEENEY Ryan Grace, Esquire, on behalf of the Commonwealth Scott D. Galloway, Esquire, on behalf of the Defendant OPINION Bradley, l. FILED: After a bench trial the Defendant, William Sweeney was found guilty of criminal attempt and solicitation of various sex offenses including, inter alia, involuntary deviate sexual intercourse of a person less than sixteen years of age, statutory sexual assault and indecent assault of a person less than sixteen years of age. On July qJ 2015 an aggregate sentence of three to six years of incarceration to be followed by three years of probation was imposed. Post-sentence motions were filed on July 20, 2015 and on July 28, 2015 the motions were denied. On August 24, 2015 a timely Notice of Appeal was filed, necessitating this Opinion. In his "Rule 1925(b) Statement Concise Statement of Matters Complained of on Appeal," Defendant challenges the weight and the sufficiency of the evidence. Additionally, the Defendant claims that the trial Court erred by denying Defendant's pre-trial motion in ·······. 1 ® limine which sought to exclude from evidence the Craigslist ad that was the genesis of the investigation that culminated in Defendant's conviction. Finally, it is alleged that the Court erred when, during a hearing on the Commonwealth's Rule 404(b) motion, "evidence" of "purported statements was allowed when the proponents were not present in Court," and when it granted the 404(b) motion. Sufficiency and Weight of the Evidence In Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa. Super. 2004) the Court considered the distinctions between claims that challenge the sufficiency and the weight of the evidence: A claim challenging the sufficiency of the evidence is a question of law. 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. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation 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. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. 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. 2 Id. citingCommonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000). In reviewing the sufficiency of evidence, the test applied is "whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of the offense beyond a reasonable doubt." Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa. Super. 2001) quoting Commonwealth v. Williams, 720 A.2d 679, 682-683 (Pa. 1998). The Commonwealth may rely on wholly circumstantial evidence to sustain its burden of proving each element of a crime charged. Direct and circumstantial evidence are considered equally when assessing the sufficiency of the evidence. Id. Where guilt is predicated upon circumstantial evidence, "[t]he inferred fact must flow, beyond a reasonable doubt, from the proven fact where the inferred fact is relied upon to establish the guilt of the accused or the existence of one of [the] elements of the offense." Commonwealth v. Paschall, 482 A.2d 589, 591-92 (Pa. Super. 1984) quoting Commonwealth v. Meredith, 416 A.2d t#JI, 485 (Pa. 1980). See also Commonwealth v. Hargrave, 745 A2d 20, 22-23 (Pa. Super. 2000). When assessing the sufficiency of the evidence the Court must evaluate the entire record and all of the evidence must be considered in the aggregate. See Commonwealth v. Bricker, 882 A.2d 1008 (Pa. Super. 2005) citing Commonwealth v. Pappas, 845 A.2d 82'1 (Pa. Super. 2004); Commonwealth v. Hopkins, 747 A.2d 910, 913-14 (Pa. Super. 2000). In this case it is within the province of the Court, sitting as the trier of fact to determine the credibility of witnesses and the weight of the evidence. See ~· Commonwealth v. Davidson, 860 A.2d 575, 580 (Pa. Super. 2004). "If the factfinder reasonably could have determined from the evidence adduced that all of the necessary elements of the crime were established, then that evidence 3 Hopkino ]>>, .,,~ ..., c;,, ....... '.~!' ·~ ~ .... tic G)r fi'.'t