J-S49041-18
2018 PA Super 251
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL LEE SMYSER :
:
Appellant : No. 1990 MDA 2017
Appeal from the Judgment of Sentence October 24, 2017
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000532-2016
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 11, 2018
Appellant Daniel Lee Smyser appeals from the Judgment of Sentence
entered in the Court of Common Pleas of Cumberland County on October 24,
2017, following his convictions of twelve counts of Sexual Abuse of Children.1
We affirm.
The trial court set forth the relevant facts and procedural history herein
as follows:
On August 27, 2015, Trooper Lucas Collins responded to the
[Appellant’s] home as a result of a 911 call originating from the
[Appellant’s] address. Dispatchers had related hearing choking
noises on the call. On the scene, Trooper Collins and EMS
personnel were unable to get a response from inside the
residence. After confirming with neighbors that [Appellant] was in
the residence and that his vehicles were present, Trooper Collins
determined there was a valid medical emergency and entered the
residence. Therein, he discovered [Appellant] on the floor, alone,
unresponsive in front of his computer. EMS provided medical
attention and transported [Appellant] to a hospital.
____________________________________________
1 18 Pa.C.S.A. § 6312(d).
____________________________________
* Former Justice specially assigned to the Superior Court.
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As he was securing the residence, Trooper Collins observed
what appeared to be readily visible child pornography streaming
on [Appellant’s] computer. There were pictures and an active chat
room containing ongoing discussion of child pornography. Based
on his observation, Trooper Collins secured the scene and
contacted the investigative unit at the Carlisle State Police
Barracks.
Thereafter, Trooper John Boardman arrived to investigate
the possible child pornography. He observed the open chat room
and noted the sexually explicit discussion of children. He also
noted that pictures of apparent child pornography were being
posted. Based on his observations he sought and obtained a
search warrant for [Appellant’s] home and computer.
Subsequently, Trooper Michael J. Gownley, a certified
forensic computer examiner, conducted a search of [Appellant’s]
computer. Testifying as an expert, Trooper Gownley related that
he discovered a Windows user profile titled "Dan" that included
two Yahoo Messenger accounts, titled "SMYS and "lilbitofur."
Further, there was a user-created folder under the "Dan" user
profile titled "Mine." In that file and in the Yahoo Messenger Photo-
Sharing Directory there were dozens of images of child
pornography, 12 of which were known child victims verified by the
database maintained by the National Center for Missing and
Exploited Children. Trooper Gownley testified that it was his
expert opinion that these images of child pornography were
intentionally possessed by [Appellant].
After he regained consciousness, [Appellant] was
confronted at the hospital about his computer activity and he
denied all knowledge of the alleged crimes. At the nonjury trial,
[Appellant] testified on his own behalf. He again denied accessing
child pornography on his computer and opined that unidentified
enemies from his past had broken into his home and planted the
child pornography on his computer in an attempt to frame him for
a crime. He also presented brief testimony from his daughter and
sister who both noted the [Appellant’s] lack of facility with
computers and technology and their doubt that he would be
capable of accessing difficult to find online contraband.
Ultimately, the court, sitting as factfinder, found the
Commonwealth's witnesses credible and [Appellant] not-credible
and found him guilty of all charges.
Trial Court Opinion, filed 4/19/18, at 1-3.
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On October 24, 2017, Appellant was sentenced to a prison term of one
(1) year less a day to two (2) years less a day in the Cumberland County
Prison along with a thirty-six (36) month term of probation to be served
consecutively thereto. Appellant further was ordered to comply with the Tier
I registration requirements of SORNA.
On November 27, 2017, the trial court entered an Order granting
defense counsel’s Motion to Withdraw Appearance and appointing new counsel
to represent Appellant. In an “abundance of caution” the trial court further
provided the Public Defender with thirty (30) days from the date of that Order
in which to file an appeal with this Court. Appellant filed his Notice of Appeal
on December 27, 2017. The next day, the trial court ordered Appellant to file
a concise statement of errors complained of on appeal within twenty-one (21)
days pursuant to Pa.R.A.P. 1925(b)(1). On January 18, 2018, the trial court
granted Appellant’s motion for enlargement of time and directed him to file a
concise statement no later than seven (7) days following the receipt of the
requested transcripts. Appellant filed his Concise Statement of the Errors
Complained of on Appeal on February 2, 2018, wherein he raised the following,
single issue:
1. [Appellant] believes, and therefore avers, that the
Commonwealth failed to present sufficient evidence for the
fact-finder to be convinced beyond a reasonable doubt of
[Appellant’s] guilt.
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In his brief, Appellant presents the following Statement of the
Questions Involved:
I. Did the trial court err in determining that the
Commonwealth presented sufficient evidence to sustain the
conviction for twelve (12) counts of sexual abuse of
children?
Brief for Appellant at 6 (unnecessary capitalization omitted).
The relevant subsection of Sexual Abuse of Children under which
Appellant’s twelve charges and subsequent convictions arose is entitled “Child
pornography” and reads as follows:
d) Child pornography.--Any person who intentionally views or
knowingly possesses or controls any book, magazine, pamphlet,
slide, photograph, film, videotape, computer depiction or other
material depicting a child under the age of 18 years engaging in a
prohibited sexual act or in the simulation of such act commits an
offense.
18 Pa.C.S.A. § 6312(d).
Whether the evidence was sufficient to support the conviction presents
a matter of law; our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.Super. 2016)
(citation omitted), appeal denied, 167 A.3d 698 (Pa. 2017). In conducting
our inquiry, we
examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
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Commonwealth v. Doughty, 633 Pa. 539, 550-51, 126 A.3d 951, 958
(2015).
“In addition to proving the statutory elements of the crimes charged
beyond a reasonable doubt, the Commonwealth must also establish the
identity of the defendant as the perpetrator of the crimes.” Commonwealth
v. Brooks, 7 A.3d 852, 857 (Pa.Super. 2010), appeal denied, 21 A.3d 1189
(Pa. 2011). “Evidence of identification need not be positive and certain to
sustain a conviction.” Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super.
2011) (en banc) (citation omitted), appeal denied, 54 A.3d 348 (Pa. 2012).
As our Supreme Court has stated “any indefiniteness and uncertainty in the
identification testimony goes to its weight. Direct evidence of identity is, of
course, not necessary and a defendant may be convicted solely on
circumstantial evidence.” Commonwealth v. Hickman, 453 Pa. 427, 430,
309 A.2d 564, 566 (1973) (citations omitted).
As a preliminary matter, it should be noted that “when challenging the
sufficiency of the evidence on appeal, the ‘[a]ppellant's [court ordered Pa.
R.A.P.1925(b) concise] statement must specify the element or elements upon
which the evidence was insufficient’ in order to preserve the issue for appeal.”
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009) appeal
denied, 3 A.3d 670 (Pa. 2010). If the appellant fails to conform to the
specificity requirement, the claim is waived. Id. See also Commonwealth
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v. Williams, 959 A.2d 1252 (Pa.Super. 2008) (quoting Commonwealth v.
Flores, 921 A.2d 517, 522–23 (Pa.Super. 2007)).
While the trial court did address the topic of sufficiency in its Rule
1925(a) Opinion, we have held that this is “of no moment to our analysis
because we apply Pa.R.A.P.1925(b) in a predictable, uniform fashion, not in a
selective manner dependent on an appellee's argument or a trial court's choice
to address an unpreserved claim.” Williams, 959 A.2d. at 1257 (quoting
Flores 921 A.2d at 522–23). In light of Appellant’s boilerplate concise
statement, we could find this issue waived; however, since Appellant was
convicted of twelve counts of 18 Pa.C.S.A. § 6312(d) and his sufficiency
challenge presents a question of law that the trial court readily apprehended,
we shall address it. See Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d
1058 (2007) (applying less strict waiver approach where case was not
complex and trial court addressed claim in substantial detail).
Appellant avers the evidence was insufficient to sustain his convictions
because it failed to establish that he intentionally and knowingly possessed or
controlled child pornography. Brief for Appellant at 13. Appellant stresses
that the evidence “only included the images that were saved to the computer
seized from [Appellant’s] residence and an allegation that a scrolling chatroom
was active at the time Trooper Collins responded to the evidence.” Id. at 15.
Appellant points to the testimony of Appellant’s daughter Chynna, that she,
her fiancé and her sister used the computer on several occasions while
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Appellant was logged on and her representation that her father lacks the
knowledge and skills necessary to upload or download files on a computer and
to utilize a file-sharing program. Id.
Appellant further states the Commonwealth failed to establish the dates
and times Appellant viewed the images. Appellant reasons that the images
introduced at trial in support of the guilty verdicts were last viewed prior to
August 27, 2015, and, in light of his testimony that he worked Monday through
Friday between 4:30 a.m. and 6:00 p.m., such evidence was insufficient to
prove that he intentionally and knowingly possessed or controlled the child
pornography. Id. at 16.
Essentially, Appellant's contention is that the trial court sitting as the
finder of fact should have credited the testimony of his daughter and him
rather than that of the investigating officers. An argument that the finder of
fact should have credited one witness’s testimony over that of another goes
to the weight of the evidence, not the sufficiency of the evidence.
Commonwealth v. Gibbs, 981 A.2d 274, 281–82 (2009)(citing
Commonwealth v. W.H.M., 932 A.2d 155, 160 (Pa.Super. 2007) (claim that
the jury should have believed Appellant's version of the event rather than the
victim’s goes to the weight, not the sufficiency of the evidence));
Commonwealth v. Wilson, 825 A.2d 710, 713–14 (Pa.Super. 2003) (a
review of the sufficiency of the evidence does not include an assessment of
the credibility of testimony); Commonwealth v. Gaskins, 692 A.2d 224, 227
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(Pa.Super. 1997) (credibility determinations are made by the finder of fact
and challenges to those determinations go to the weight, not the sufficiency
of the evidence). Thus, Appellant's asserted sufficiency of the evidence claim
is, in fact, a weight of the evidence claim; yet, Appellant has not challenged
the weight of the evidence on appeal. As a result, he has waived any challenge
to the weight of the evidence for failure to include it in his Pa.R.A.P. 1925(b)
statement. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
(“Any issues not raised in a 1925(b) statement will be deemed waived.”); see
also Pa.R.A.P. 1925(b)(4)(vii). To the extent that Appellant properly has
raised a sufficiency claim, we find it meritless.
The record reveals Appellant resided alone and was the only one present
when Trooper Collins arrived at his locked home on August 27, 2015, and
found him lying on the floor in front of his computer in his bedroom dressed
only in his undergarments. N.T. Trial, 6/30/17, at 6-7, 11. The computer was
connected to several, active open chat rooms and displayed scrolling images
of child pornography. Id. at 8, 20-21. Following the seizure and forensic
analysis of Appellant’s computer, police discovered additional images of child
pornography which included twelve images of known child victims. Id. at 52-
53.
In its Rule 1925(a) Opinion, the trial court explained the twelve pictures
of the victims were “sexually explicit depictions of children.” Trial Court
Opinion, filed 4/19/18, at 3. The court found Appellant’s claims of
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technological incompetence were belied by expert testimony and the forensic
evidence at trial. While the trial court stated it did not doubt the truthfulness
of Appellant’s daughter and sister, it explained it discounted their testimony
“on the basis of their simple inability to know of [Appellant’s] secret behavior.”
Id. at 4. The [c]ourt concluded that:
[Appellant’s] theory of a mysterious enemy setting him up is
ludicrous. The discovery of [Appellant’s] possession of child
pornography was triggered by his suffering a sudden asthmatic
episode. It would take a remarkably patient vengeance-seeker to
plant dozens of images of child pornography on his enemy’s
computer and then simply wait for a random medical emergency
for police to discover the contraband.
Id.
Our review of the record supports the trial court’s conclusions. It was
within the province of the trial court, as factfinder, to determine that the
evidence presented was sufficient to establish Appellant intentionally viewed
and/or possessed the pornographic images found on his computer.
Appellant's challenge, therefore, fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/11/2018
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