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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES SMITH :
:
Appellant : No. 988 EDA 2019
Appeal from the Judgment of Sentence Entered November 21, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0007916-2015,
CP-51-CR-0007917-2015.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES SMITH :
:
Appellant : No. 989 EDA 2019
Appeal from the Judgment of Sentence Entered November 21, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0007916-2015,
CP-51-CR-0007917-2015.
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 19, 2021
In this consolidated appeal, James Smith appeals from the judgments
of sentence imposed following his convictions for rape, involuntary deviate
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sexual intercourse (“IDSI”), and multiple other sex offenses against two minor
victims.1 We affirm.
The trial court summarized the relevant factual history as follows:
Sometime in April 2015, A.P. & E.B, [ages] seventeen and
twelve years old at the time, respectively, reported to the
Philadelphia Police that their mother’s godfather[,] James “Pop-
Pop, Sporty” Smith had been sexually abusing one or both of them
since 2011.
[Smith], a 46-year-old man with a date of birth of September
30, 1968, began molesting E.B, a 10[-]year[-]old, in the fall of
2014. In October or November 2014, [Smith] picked up E.B. and
a few of her siblings from their grandmother’s house, and took
them grocery shopping. E.B. and her siblings were living with their
grandmother because their mother was in jail. On the way to his
home from the grocery store, [Smith] asked E.B if she wanted to
play a guessing game involving a turkey baster. The game
involved putting different flavors into the baster and E.B. would
have to guess what they were. E.B. declined to play the game.
When they arrived at [Smith’s] home, he told E.B. to join him in
the basement, and she obliged. At this point, E.B was told to sit
on a chair where she was blindfolded. Next, [Smith] placed
something in E.B.’s mouth. E.B, described this thing as tasting
sweet then having a strong flavor. She felt something hard, and
skin and hair around her mouth and the thing in her mouth moved
back and forth. After she tasted the strong flavor, this stopped,
and the blindfold was removed. [Smith’s] denim pants were
unzipped. This was the first time [Smith] assaulted E.B. but not
the last time.
Later in the year, but prior to E.B.’s 11th birthday, she and
her brother caught a bus from Reading, PA to visit [Smith] under
the guise that he would buy her an iPad for her birthday. [Smith]
picked them up and took the children to get hoagies on the way to
his house. When they arrived, [Smith] instructed E.B. to take a
shower and join him in his bedroom. Wearing nothing but a towel,
E.B. went to [Smith’s] bedroom where she was instructed to lie on
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1
See 18 Pa.C.S.A. §§ 3121(a)(1); 3123(a)(1), (b); 3124.1; 3126(a)(2),
(7); 4304(a)(1); 6301(a)(1)(ii), (ii); 6318(a)(1).
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the bed so that he may check her for bedbug bites. [Smith] held
E.B.’s ankles and lifted her legs into the air leaving the towel to
cover only the top half of her body. Although [Smith] did not touch
E.B.’s genitalia at this point, he commented on her pretty private.
Sometime shortly thereafter, at an unknown time, following
a snowfall and after E.B.’s 11th birthday, E.B., her mom, and
younger siblings were all gathered at [Smith’s] home. Under the
guise of going to the store across the street, [Smith] took E.B. out
the front door of his house and into the basement through the
garage. Once again, E.B. was told to sit down, this time on the
toilet, and again blindfolded. [Smith] proceeded to repeat his
actions from the fall of 2014, and this time instructing E.B. to “rub
the oranges.” E.B. did not know what the oranges were, but
described them as hard circles and she felt skin and hair around
them. Once more, she felt something with the hair and skin in her
mouth followed by a strong flavor. After the strong flavor, [Smith]
stopped and removed E.B.’s blindfold. Prior to rejoining the family,
[Smith] told E.B. not to tell her mom because it was “our game.”
It wasn’t until April 2015, while at her Uncle Lance’s house, did
E.B. tell her mother what had happened.
When A.P. was 13 or 14 years old, [around 2012] her mother
introduced her to [Smith] as a person who could get A.P. into
modeling. [Smith] owned a hair salon and A.P. went to see him
there to see if he could be of assistance to her. When she arrived
at the salon, she was told come to the back where [Smith]
measure[d] her breasts and then had her lower her jeans to
measure her waist.
About a year or two later, A.P.’s mother picked her up from
her cousin’s house and together they went to [Smith’s]. After
eating dinner, A.P. was informed that she would be sleeping in the
back room by herself, and her mother and younger sister would be
sleeping in the front room. Later that evening, [Smith] woke up
A.P. and instructed her to join him downstairs. [Smith] then
informed A.P. that her mother had filled him in on her living
situation, and the problems that A.P, was facing at her foster
mother’s house. It was at this point that [Smith] informed A.P.
that he would take care of her if she took care of him. He
proceeded to penetrate A.P. vaginally and then asked her to give
him oral sex. A.P. did not refuse his advances because she was
feeling very vulnerable and “was trying to survive.” The sex was
a regular thing.
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When A.P.’s mom was incarcerated, she lived with [Smith],
as she had no other choice. A.P. testified that “I was
uncomfortable, but I didn’t have any other options, so I made it
work.” During the following months, [Smith] had regular sexual
intercourse with A.P., mostly in her room and mostly at night.
[Smith] never used a condom and ejaculated in A.P. Often [Smith]
would try to penetrate A.P. anally, which A.P. would decline. A.P.
was reliant on [Smith] as he provided her with day-to-day living
things, spending money, food, and car fare. Eventually A.P. got
fed up and started saying no to [Smith]. In response, [Smith]
stopped bringing her things and providing her with car fare,
uniforms, and things for school. A.P. eventually moved out and
told her friend Lisa about the abuse. Then one day in April 2015,
whilst at her Uncle Lance’s home, because of the situation with E.B.
[A.P.] told her mother about the abuse.
Trial Court Opinion, 1/15/20, at 3-6 (citations to the record omitted).
Smith was arrested and charged at CP-51-CR-0007916-2015 for his
sexual abuse of E.B., and at CP-51-CR-0007917-2015 for his sexual abuse of
A.P. The cases were consolidated for trial. At the conclusion of trial, a jury
convicted Smith of IDSI (with a child), unlawful contact with a minor (sexual
offense), endangering the welfare of a child (by parent/guardian), corruption
of minors (defendant over eighteen), and indecent assault (victim under
thirteen) at CP-51-CR-0007916-2015 (E.B.). The same jury convicted Smith
of rape (forcible compulsion), IDSI (forcible compulsion), unlawful contact
with a minor, sexual assault, endangering the welfare of a child, corruption of
minors (defendant over eighteen), and indecent assault (forcible compulsion)
at CP-51-CR-0007917-2015 (A.P.).
On November 21, 2018, the trial court sentenced Smith to an aggregate
prison term of thirty-nine to seventy-eight years for his offenses against E.B.
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and A.P. Smith filed a post-sentence motion, which was denied by operation
of law. Smith filed a timely notice of appeal at each docket, but listed both
trial court docket numbers on each notice of appeal. Both Smith and the trial
court complied with Pa.R.A.P. 1925.
Initially, this Court issued a rule to show cause at each case as to why
the appeal should not be quashed in light of the Pennsylvania Supreme Court’s
holding on June 1, 2018, in Commonwealth v. Walker, 185 A.3d 969, 971
(Pa. 2018) (requiring a separate notice of appeal to be filed at each docket
where a single order resolves issues arising on more than one docket); see
also Pa.R.A.P. 341, Comment. Smith filed responses to the rules to show
cause and later filed a motion to consolidate the appeals. On September 5,
2019, this Court issued a per curiam order which discharged the rule to show
cause, and deferred the Walker issue to the merits panel to quash either or
both of the appeals upon review. On September 6, 2019, this Court issued
an order consolidating the appeals.
Smith raises the following issues for our review:
1. Did the [trial] court commit error by convicting [Smith] of
[IDSI], unlawful contact, [EWC], corruption of a minor and
indecent assault where the evidence at trial was insufficient to
establish that [Smith] ever engaged in sexual intercourse with
E.B.?
2. Did the court commit error by convicting [Smith] of rape,
[IDSI], unlawful contact, sexual assault, [EWC], corruption of
a minor and indecent assault when the evidence at trial was
insufficient to establish that [Smith] ever engaged in forcible
sexual intercourse or sexual contact with A.P.?
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3. Did the court commit error when it disallowed Stephon Murke
from testifying regarding bias of Commonwealth witness
Renata Bell against [Smith]?
4. Did the court commit error when it disallowed Donnetta
Heyward from testifying regarding the layout of [Smith’s]
house during the time that the alleged offenses took place?
5. Did the court commit error when it disallowed the jurors from
taking notes when it was clear that the trial was going to last
more than two days?
Smith’s Brief at 2-3 (capitalization omitted).
Before we reach the merits of the issues Smith presents on appeal, we
first must address whether Smith’s notices of appeal complied with Walker.
In Walker, our Supreme Court held prospectively that where, as here, a single
order resolves issues arising on more than one docket, an appellant’s failure
to file a separate notice of appeal for each case will result in quashal.
In his responses to the rules to show cause, Smith indicates that he did
file a separate notice of appeal at each docket. Response to Rule to Show
Cause, 5/12/19, at 1 (unnumbered) (indicating that he filed the notices at
different times on the same day, and attaching copies of the two notices of
appeal which bear different time stamps). However, Smith concedes that his
notices of appeal each contained two trial court docket numbers. Id.
Upon review of the record, we conclude Smith did indeed file two
separate notices of appeal, as evidenced by the independent time stamps.
See Commonwealth v. Johnson, 236 A.3d 63, 66 (Pa. Super. 2020) (en
banc) (determining that time stamps in different locations and/or different
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times of day indicate that separate notices of appeal were filed). Moreover,
we need not quash based upon the listing of multiple docket numbers on each
notice of appeal. See Commonwealth v. Johnson, 236 A.3d 1141, 1148
(Pa. Super. 2020) (en banc) (holding that “[w]e should not invalidate an
otherwise timely appeal based on the inclusion of multiple docket numbers, a
practice that the Rules [of Appellate Procedure] themselves do not expressly
forbid.”). Having determined that Smith complied with Walker and Pa.R.A.P.
341, we may proceed.
In his first two issues, Smith challenges the sufficiency of the evidence
supporting his convictions. In reviewing a challenge to the sufficiency of the
evidence, our standard of review is as follows:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
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.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most favorable
to the Commonwealth, demonstrates the respective elements of
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a defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted). Importantly, “the jury, which
passes upon the weight and credibility of each witness’s testimony, is free to
believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,
33 A.3d 602, 607 (Pa. 2011).
Smith’s first issue pertains to the sufficiency of the evidence supporting
his convictions for sex crimes against E.B.; namely, IDSI (with a child),
unlawful contact with a minor (sexual offense), endangering the welfare of a
child (by parent/guardian), corruption of minors (defendant over eighteen),
and indecent assault (victim under thirteen). All of these crimes were based
on the fact that Smith engaged in oral sex with E.B., a preteen in his care, on
two occasions. The crimes at issue are defined as follows.
A person commits IDSI with a child, a felony of the first degree, when
the person engages in deviate sexual intercourse with a complainant who is
less than 13 years of age. See 18 Pa.C.S.A. § 3123(b).
A person is guilty of indecent assault when “the 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
13 years of age.” 18 Pa.C.S.A § 3126(a)(7). Indecent contact is defined as
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“touching of the sexual or other intimate parts of the person for the purpose
of arousing or gratifying sexual desire in any person.” 18. Pa.C.S.A. § 3101.
The crime of endangering the welfare of a child is committed when “[a]
parent, guardian or other person supervising the welfare of a child under 18
years of age, or a person that employs or supervises such a person, commits
an offense if he knowingly endangers the welfare of the child by violating a
duty of care, protection or support.” 18 Pa.C.S.A. § 4304(a)(1).
A person commits the offense of corruption of a minor when that person
is an adult (age 18 or older) who “by any course of conduct in violation of
Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the
morals of any minor less than 18 years of age, or who aids, abets, entices or
encourages any such minor in the commission of an offense under Chapter 31
. . ..” 18 Pa.C.S.A § 6301(a)(1)(ii).
Finally, “[a] person commits [the] offense [of unlawful contact with a
minor] if he is intentionally in contact with a minor . . . for the purpose of
engaging in an activity prohibited under . . . Chapter 31 (relating to sexual
offenses).” 18 Pa.C.S.A. § 6318(a)(1).
Smith does not dispute that, at the time of the alleged incidents, he was
over eighteen years of age, E.B. was less than thirteen years of age, and E.B.
was in his personal care. Smith argues, however, that the evidence was
insufficient to prove that he engaged in sexual intercourse with E.B. because
E.B. was the only witness who testified regarding the offenses, she delayed
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one year before coming forward, she was unable to provide specific dates of
the alleged incidents, and her testimony was not corroborated by other
witnesses or by physical evidence. Smith points out that E.B. was blindfolded
during the alleged incidents, and testified that she did not see what object
was placed in her mouth or know what fluid was inserted into her mouth.
According to Smith, the evidence shows only that he placed a blindfold on E.B.
on two occasions and some type of fluid was inserted into her mouth. For
these reasons, Smith argues that all of his convictions relating to E.B. should
be reversed.
The trial court considered Smith’s sufficiency claims as related to E.B.
and determined that they lacked merit. The trial court reasoned:
In the instant matter, it is well[-]established that [Smith]
was over the age of 18 and E.B was under the age of 13 when
[he] first forced E.B. to perform oral sex on him. E.B. very clearly,
albeit with the use of descriptors, depicts the oral sex forced upon
her by [Smith]. He blindfolded E.B. and put something hard in
her mouth. She could feel skin and hair around her mouth. It
tasted sweet and then had a strong flavor, and after the strong
flavor [Smith] removed the blindfold and was standing there with
his pants unzipped. The evidence presented was more than
sufficient for the jury to interpret this as forced oral copulation
with ejaculation . . ..
Trial Court Opinion, 1/15/20, 9-10 (references to the record omitted).2
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2
The trial court also noted that Smith had indecent sexual contact with E.B.
when he held her ankles and lifted them above her shoulders to view her
naked body, and then told her that her “private” was “pretty.” See Trial Court
Opinion, 1/15/20, at 12 (citing Commonwealth v. Capo, 727 A.2d 1126 (Pa.
Super. 1999) (holding that nonconsensual contact with the victim’s back and
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We discern no abuse of discretion by the trial court in rejecting Smith’s
sufficiency claims as related to his crimes against E.B. As noted above, the
Commonwealth may establish a defendant’s guilt by means of wholly
circumstantial evidence. Franklin, 69 A.3d at 722. Moreover, the
uncorroborated testimony of a sexual assault victim, if believed by the trier of
fact, is sufficient to convict a defendant. See 18 Pa.C.S.A. § 3106 (providing
that “[t]he testimony of a complainant need not be corroborated in [sexual
assault] prosecutions”); see also Commonwealth v. McDonough, 96 A.3d
1067, 1069 (Pa. Super. 2006) (holding that the uncorroborated testimony of
a sexual assault victim, if believed by the trier of fact, is sufficient to convict
a defendant). Thus, the Commonwealth was not required to corroborate
E.B.’s testimony with physical evidence or testimony from other witnesses.
Likewise, the fact that E.B. did not immediately report the sexual
assaults is not a basis for finding the evidence insufficient. See 18 Pa.C.S.A.
§ 3105 (providing that the complainant’s failure to promptly report a sex crime
does not preclude a defendant’s conviction for the crime). Rather, the lack of
a prompt report is merely a factor to be considered by the jury in assessing
the complainant’s credibility. See Commonwealth v. Thomas, 904 A.2d
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shoulders, paired with kissing the victim’s face with sexual motivation, was
enough to sustain a conviction for indecent assault) and Commonwealth v.
Fisher, 47 A.3d 155 (Pa. Super. 2012) (affirming that defendant engaged in
indecent contact with a minor by licking the backs of her legs from her ankles
to just under her buttocks)).
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964, 970 (Pa. Super. 2006) (stating that “if a complaint is delayed
substantially without any reasonable explanation, an inference can be drawn
regarding the credibility of that complaint and against whether the incident in
fact occurred”). Importantly, in the instant matter, the jury found E.B.
credible, despite her delay in coming forward. We further note that the
credibility of E.B. is irrelevant in a sufficiency review on appeal, because we
view the record in the light most favorable to the verdict winner, which is the
Commonwealth in this matter.
Additionally, the fact that E.B. may not have been able to identify the
precise dates on which the assaults occurred does not render the evidence
insufficient. The prosecution is required to fix the date on which an offense
occurred with reasonable certainty so that the defendant is provided “with
sufficient notice to meet the charges and prepare a defense.”
Commonwealth v. Brooks, 7 A.3d 852, 857-58 (Pa. Super. 2010).
However, the Commonwealth must be afforded broad latitude when
attempting to fix the date of offenses which involve a continuous course of
criminal conduct, particularly in cases involving sexual offenses against
children. Id. at 858.
Here, the evidence established that the first act of fellatio occurred in
October of 2014, when E.B. was ten years old and while her mother was still
in jail. See N.T., 9/13/18, at 43, 48, 70-71. The incident in which Smith
claimed that he wanted to check E.B. for bedbug bites and told her that her
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“private” was “pretty” occurred right before E.B. turned eleven, which was in
mid-December of 2014. See N.T., 9/13/18, at 39, 49; 9/14/18, at 58-59,
115. The second act of fellatio occurred after E.B. turned eleven and before
she revealed the abuse to her mother, which was in April of 2015. See N.T.
9/13/18, at 54-55; 9/14/18, at 57. Thus, while E.B. may not have been able
to pinpoint the specific dates on which Smith abused her, the evidence
sufficiently established the timeframe in which the acts occurred. See
Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2010) (holding
that a minor victim’s testimony that abuse occurred when she was between
the ages of seven and eight and that it took place in the summer sufficiently
established the dates of the crimes); see also Commonwealth v. Luktisch,
680 A.2d 877, 879-80 (Pa. Super. 1996) (holding that evidence indicating that
rape of minor victim occurred sometime in the spring of a particular year
sufficiently identified the date of the crime).
Finally, the testimony presented by E.B. was clearly sufficient to permit
the jury to conclude that on two occasions Smith placed his penis in her mouth
and moved it back and forth until he ejaculated inside of her. Thus, the trial
court did not abuse its discretion in concluding that the evidence was sufficient
to establish IDSI (with a child), unlawful contact with a minor (sexual offense),
endangering the welfare of a child (by parent/guardian), corruption of minors
(defendant over eighteen), and indecent assault (victim under thirteen) based
on these sexual acts. See Commonwealth v. Snyder, 870 A.2d 336 (Pa.
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Super. 2005) (holding that the evidence was sufficient to sustain defendant’s
convictions for IDSI, indecent assault, and corruption of minors where the
preteen victim testified that defendant, among other things, made her suck
on his penis until a “whitish liquid” came out). For these reasons, Smith’s first
issue warrants no relief.
Smith’s second issue pertains to the sufficiency of the evidence
supporting his convictions for sex crimes against A.P.; namely, rape (forcible
compulsion), IDSI (forcible compulsion), unlawful contact with a minor, sexual
assault, endangering the welfare of a child, corruption of minors (defendant
over eighteen), and indecent assault (forcible compulsion). Each of these
convictions was based on the fact that that Smith compelled A.P. to repeatedly
engage in sexual intercourse with him and to perform oral sex on him. We
employ the same standard of review as discussed above. The offenses at
issue are defined as follows.
With respect to the crime of rape by forcible compulsion, “[a] person
commits a felony of the first degree when the person engages in sexual
intercourse with a complainant . . .[b]y forcible compulsion.” 18 Pa.C.S.A. §
3121(a)(1).
A person commits IDSI by forcible compulsion, a felony of the first
degree, “when the person engages in deviate sexual intercourse with a
complainant . . . by forcible compulsion.” 18 Pa.C.S.A. § 3123(a)(1).
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The “forcible compulsion” necessary for these two crimes “includes not
only physical force or violence but also moral, psychological or intellectual
force used to compel a person to engage in sexual intercourse against that
person’s will.” Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986).
This “physical, intellectual, moral, emotional or psychological force,” can be
“either express or implied.” 18 Pa.C.S.A. § 3101. Factors relevant to whether
forcible compulsion has occurred include:
the respective ages of the victim and the accused, the respective
mental and physical conditions of the victim and the accused, the
atmosphere and physical setting in which the incident was alleged
to have taken place, the extent to which the accused may have
been in a position of authority, domination or custodial control
over the victim, and whether the victim was under duress.
Rhodes, 510 A.2d at 1226.
A person commits sexual assault, a felony of the second degree, “when
that person engages in sexual intercourse or deviate sexual intercourse with
a complainant without the complainant’s consent.” 18 Pa.C.S.A. § 3124.1.
Because the element of forcible compulsion encompasses a lack of consent,
sexual assault is a lesser-included offense of IDSI by forcible compulsion.
Commonwealth v. Buffington, 828 A.2d 1024, 1031-32 (Pa. 2003).
“A person is guilty of indecent assault if the 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
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person or the complainant and . . . the person does so by forcible compulsion.”
18 Pa.C.S.A. § 3126(a)(2).
As explained above, the crime of endangering the welfare of a child is
committed when “[a] parent, guardian or other person supervising the welfare
of a child under 18 years of age, or a person that employs or supervises such
a person, commits an offense if he knowingly endangers the welfare of the
child by violating a duty of care, protection or support.” 18 Pa.C.S.A. §
4304(a)(1).
As also explained above, a person commits the offense of corruption of
a minor when that person is an adult (age 18 or older) who “by any course of
conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or
tends to corrupt the morals of any minor less than 18 years of age, or who
aids, abets, entices or encourages any such minor in the commission of an
offense under Chapter 31 commits a felony of the third degree.” 18 Pa.C.S.A
§ 6301(a)(1)(ii).
Finally, “[a] person commits [the] offense [of unlawful contact with a
minor] if he is intentionally in contact with a minor . . . for the purpose of
engaging in an activity prohibited under . . . Chapter 31 (relating to sexual
offenses).” 18 Pa.C.S.A. § 6318(a)(1).
Smith argues that the evidence was insufficient to prove these crimes
against A.P., because A.P., like E.B., was the only witness who testified
regarding the offenses, she delayed one year before coming forward, she was
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unable to provide specific dates of the alleged incidents, and her testimony
was uncorroborated by other witnesses and by physical evidence. According
to Smith, the evidence showed only that he allowed A.P. to stay in his home.
For these reasons, Smith argues that his convictions relating to A.P. should
be reversed.
The trial court considered Smith’s sufficiency claims as related to A.P.
and determined that they lacked merit. The trial court reasoned:
[Smith] began raping A.P. when she was fifteen (15) years
old. At that time, A.P., who had already been removed from her
birth mother’s care and was placed in foster care, was on the outs
with her adoptive mother. [Smith], knowing full well about A.P.’s
home and living situation took advantage of A.P, and began to
rape her [and make her perform oral sex on him]. Soon
thereafter, A.P.’s mother was incarcerated, and [Smith] assumed
the role [of] guardian. [Smith] used A.P.’s precarious state of
affairs and began to control her everyday life. He provided her
with day[-]to[-]day necessities and gifts and withheld them when
she finally stood up for herself. [Smith] forced A.P. into a quid
pro quo “relationship.” He used the threat of withholding basic
necessities such as food and housing to continue the abusive
relationship. It is this type of psychological force that the
[Pennsylvania] Supreme Court articulated as forcible compulsion
in Rhodes.
Trial Court Opinion, 1/15/20, 8-9, 10, 11 (citations, references to the record,
and unnecessary capitalization omitted).
We discern no abuse of discretion by the trial court in rejecting Smith’s
sufficiency claims as related to A.P. The evidence, when viewed in the light
most favorable to the Commonwealth, established that Smith engaged in
sexual intercourse with A.P., both vaginally and orally, on multiple occasions,
and that he used his dominant position and A.P.’s vulnerability and isolation
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to compel her to engage in those sex acts against her will. Accordingly, the
evidence was sufficient to sustain Smith’s convictions for rape (forcible
compulsion), IDSI (forcible compulsion), unlawful contact with a minor, sexual
assault, endangering the welfare of a child, corruption of minors (defendant
over eighteen), and indecent assault (forcible compulsion). See
Commonwealth v. Dorman, 547 A.2d 757, 761-62 (Pa. Super. 1982)
(holding that the evidence was sufficient to sustain defendant’s conviction of
rape by forcible compulsion where the 38-year-old drove his teenage niece to
a secluded area, proceeded to have sex with her even though she said “don’t,”
where defendant occupied a position of authority and trust such that the victim
would feel coerced to submit to his demands out of a sense of duty or
obedience).
Furthermore, as explained above with respect to E.B., the
Commonwealth was not required to corroborate A.P.’s testimony concerning
Smith’s sexual abuse, and A.P.’s delay in coming forward was a factor to be
considered by the jury in assessing her credibility rather than a matter of
sufficiency. See 18 Pa.C.S.A. §§ 3105, 3106.
Additionally, while A.P. did not identify the specific dates when each of
the assaults occurred, she testified that the first one happened the night be-
fore her mother reported to jail, which was in mid-July of 2014, and that the
assaults continued multiple times each week throughout the summer. See
N.T., 9/13/18, at 116, 120-21; 9/14/18, at 55). This timeframe was specific
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enough to provide Smith with adequate notice of the dates of the incidents.3
Accordingly, as the evidence was sufficient to sustain each of Smith’s
convictions for sex crimes against A.P., his second issue merits no relief.
In his third issue, Smith submits that the trial court erred when it
disallowed Stephon Murke from testifying regarding Commonwealth witness
Renata Bell’s bias against Smith. Our standard of review is as follows:
The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.
Commonwealth v. Benvenisti-Zarom, 229 A.3d 14, 25 (Pa. Super. 2020)
(citation omitted).
Further, evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.”
Pa.R.E. 401. However, “[a]lthough relevant, evidence may be excluded if its
probative value is outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” Pa.R.E. 403.
____________________________________________
3
Notably, Smith conceded that A.P. lived with him during the specified time
period. See N.T. 9/24/18, 143-45, 149-50. Thus, even if the timeframe
established by A.P. was somehow insufficient, Smith was not prejudiced in his
ability to present a defense. See Commonwealth v. Brooks, supra.
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Relevant evidence may also be excluded if it constitutes inadmissible
hearsay. Commonwealth v. King, 959 A.2d 405, 412 (Pa. Super. 2008)
(holding that relevant evidence may nevertheless be inadmissible if it violates
a rule of competency, such as the hearsay rule). Hearsay means “a statement
that (1) the declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” Pa.R.E. 801(c). Hearsay is not admissible except
as provided by our Rules of Evidence, by other rules prescribed by the
Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. Thus, an out of court
declaration offered for its substantive truth, even if relevant, is nevertheless
incompetent and hence inadmissible hearsay if it does not fall within any
exception. See Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa.
1981).
Smith claims that he attempted to call Murke as a fact witness to testify
that Renata Bell, the mother of E.B. and A.P., conspired with Demetrius Hall
to get her daughters to fabricate allegations of sexual misconduct against
Smith. Smith maintains that Hall and Bell took this action in response to
Smith’s discovery that Hall had stolen money from Smith. Smith asserts that
the trial court erred by sustaining the Commonwealth’s objection to Murke’s
testimony on the grounds of hearsay and relevancy. Smith maintains that
Murke’s testimony would have been relevant since it would have given Bell a
motive to lie and to urge E.B. and A.P. to fabricate the allegations of sexual
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misconduct. Smith further claims that Murke’s testimony would have
supported his theory that Bell conspired to pressure E.B. and A.P., which
would have made their allegations against him less believable.
While Smith concedes that the trial court disallowed Murke’s testimony
based on both relevancy and hearsay, Smith only addresses the relevancy
aspect of the trial court’s ruling. Importantly, as noted above, relevant
evidence may be excluded if it constitutes inadmissible hearsay. See King,
959 A.2d at 412; Thornton, 431 A.2d at 251.
Our review of the record indicates that the trial court requested an offer
of proof from Smith as to Murke’s proposed trial testimony.4 After Smith
provided that offer of proof, the trial court expressed its concerns that Murke
was not a fact witness to any matter before the court, and further that Murke
was “going to testify to a lot of hearsay.” N.T., 9/18/18, at 111. Smith did
not object the trial court’s assessment, and did not identify any exception to
the hearsay rule that might apply. Id. Instead, he stated in response to the
trial court’s statement, “O.K. No problem. I have to go off of me then.” Id.
Even now, on appeal, Smith does not dispute the trial court’s characterization
of Murke’s proposed testimony as hearsay, and does not identify any
purported exception to the hearsay rule.
____________________________________________
4
We note that Smith was represented by counsel at the outset of his trial, but
on day two of trial, he chose to represent himself. Thus, he was proceeding
as his own lawyer at this point of the litigation. We further note that Smith is
represented by counsel in this appeal.
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More importantly, however, Smith did not preserve this issue for our
review. In order to preserve a claim for appellate review, a party must make
a timely and specific objection at the appropriate stage of the proceedings
before the trial court, or the claim is waived. See Commonwealth v.
Russell, 209 A.3d 419, 429 (Pa. Super. 2019). Here, Smith did not object to
the trial court’s hearsay ruling. As such, he has waived any challenge to that
ruling on appeal. See Pa.R.A.P. 302(a) (providing that issues not raised in
the court below are waived and cannot be raised for the first time on appeal);
see also Commonwealth v. Colon, 846 A.2d 747, 752-53 (Pa. Super. 2004)
(holding that the defendant waived his claim regarding the trial court’s
evidentiary ruling where he acceded to the ruling when it was made). Thus,
Smith’s third issue warrants no relief.
In his fourth issue, Smith contends that the trial court erred when it
disallowed him from calling Donnetta Hayward to testify regarding the layout
of his home at the time of the alleged incidents. In addressing this
admissibility of evidence issue, we employ the same standard of review as
discussed above.
Smith claims that he attempted to call Hayward as both a character
witness and as a fact witness. Smith wanted Hayward to testify as a fact
witness regarding the layout of his house and furniture in the house that would
make the Commonwealth’s case less believable. Smith argues that the trial
court erred in sustaining the Commonwealth’s objection on the basis that her
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proposed factual testimony would be cumulative since earlier defense
witnesses, Shannon Banks and Betty Ricks, had given testimony regarding the
absence of a bench in the living room.
Smith maintains that Hayward’s proposed testimony would not have
been cumulative because she would have been able to describe Smith’s house
at the time of certain of the alleged incidents; namely, the summer of 2014.
Smith points out that Banks admitted on cross-examination that she had not
been to Smith’s house before 2015. While Smith concedes that Ricks was
able testify that she observed the layout of his house during this time period,
she admitted on cross-examination that she suffered from vision impairment,
rendering her testimony less compelling. On these bases, Smith argues that
Hayward’s proposed testimony was different and more relevant than the
testimony provided by Banks and Ricks regarding the layout of Smith’s house.
Our review of the record reflects that, when Smith sought to call
Hayward as a witness, the trial court requested an offer of proof. 5 Smith
responded as follows:
Offer of proof is she lived in the residence prior to 2014 and has
been at the residence after 2014, and I would like for her to verify
the contents that is in the photographs and the layout of the
house. That’s it. Then I will do character, Your Honor. But I did
give her. She is on my list.
____________________________________________
5
The trial court also noted that Smith failed to disclose the identity of Hayward
prior to trial, in violation of Pa.R.Crim.P. 573(c)(1)(b). The Court and the
Commonwealth were unaware that Smith intended to call Hayward as a
witness up until up until the point when he called her to the witness stand.
See Trial Court Opinion, 1/15/20, at 19.
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N.T., 9/20/18, at 16.
Here, Smith indicated that he wanted Hayward to testify regarding the
layout of his house and to verify the photographs depicting its contents.
However, a literal reading of his offer of proof indicates that, although
Hayward resided in Smith’s home before 2014, and visited the home after
2014, she did not visit the home at any time in 2014, when most of the abuse
took place.
Even assuming that Smith’s intended proffer was that Hayward had
been to the home in 2014, several other witnesses had already testified as to
the layout of the home and the contents therein within that timeframe.
Smith’s home healthcare worker, Kimberly Robinson, and Smith’s girlfriend,
Angel Miller, were regularly in the house in 2014, and testified regarding the
layout of Smith’s home and the photographs depicting it. See N.T., 9/20/18,
at 27-29, 30-32; 9/24/18, at 29-30, 32-39, 42-46, 56. Finally, Smith himself
took the witness stand and testified regarding the photographs and the home’s
layout. See N.T., 9/24/18, at 96; 9/25/18, at 14. Thus, even if Banks had
not been to the home before 2015 and Ricks had vision problems, the
proposed testimony of Hayward still would have been cumulative to the
testimony of Robinson, Miller, and Smith himself, who resided in the home
throughout the relevant time period. Accordingly, Smith’s fourth issue merits
no relief.
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In his final issue, Smith contends that the trial court erred in disallowing
the jurors from taking notes during the trial based on its determination that
the trial would be short. Smith points to Pennsylvania Rule of Criminal
Procedure 644, which governs the taking of notes by jurors and provides that,
“[w]hen a jury trial is expected to last for more than two days, jurors shall be
permitted to take notes during the trial for their use during deliberations.
When the trial is expected to last two days or less, the judge may permit the
jurors to take notes.” Pa.R.Crim.P. 644(A).
Smith argues that the trial court could not have reasonably anticipated
that the trial would be concluded within two days or less. He points out that
the trial involved two complainants and fourteen separate criminal charges.
Smith further points out that the Commonwealth called E.B., A.P., and several
other witnesses, and Smith called several defense witnesses to testify on his
behalf. Smith maintains that the jury heard testimony on seven separate
days, and did not begin deliberations until thirteen days after the trial began.
He argues that allowing the jurors to take notes would have been valuable to
helping them to refresh their memory and focus their concentration.
Here, the record reflects that the trial court indicated on the first day of
trial that the jurors were not going to be allowed to take notes because “[t]his
is a short case.” See N.T., 9/13/18, at 21. Defense counsel agreed that the
case was going to be “relatively short.” Id. at 32. Smith did not object to the
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trial court’s assessment that the trial would be short, or its decision to preclude
notetaking by the jurors.6
Nevertheless, on the third day of trial, Smith asked the court to permit
the jurors to take notes. See N.T., 9/17/18, at 8-9, 15. At that point, E.B.,
A.P., and their mother had already completed their testimony. The trial court
rejected Smith’s untimely request to allow notetaking. As the court explained,
“[w]e did not begin note taking at the beginning of this trial so there will be
no note taking mid-trial either.” Id. at 15.
Because Smith did not timely ask the court to allow notetaking, and did
not object at the beginning of trial when the trial court initially stated that
notetaking would be disallowed, his claim that the court should have permitted
notetaking is waived. See Russell, 209 A.3d at 429.7
____________________________________________
6
At the state of his trial, Smith was represented by counsel; as mentioned
above he decided to represent himself on the second day of trial.
7
Even if Smith’s claim had been preserved for our review, we would had
concluded that it lacked merit. The operative language in Rule 644 concern’s
the trial court’s pretrial expectation regarding the length of the proceeding.
Our review of the record indicates that the trial lasted more than two days
due to numerous delays which could not have reasonably been anticipated by
the trial court. For example, Smith’s decision to proceed pro se on the second
day of trial required the trial court to take frequent breaks from the testimony
to ensure that Smith understood his rights, and to explain to him proper court
procedures. See Trial Court Opinion, 1/15/20, at 21. During trial, Smith
announced that he had gone on a “medication strike” because he was unhappy
with the court’s rulings, and threatened to add a “hunger strike” to his
“medication strike” if the court continued to rule against him. Smith
subsequently suffered some type of medical emergency during the course of
his trial, purportedly due to his “medication strike,” and the proceedings had
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As none of Smith’s claims merit relief, we affirm the judgment of
sentence.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/21
____________________________________________
to be suspended for a day and a half, plus the following weekend, due to his
hospitalization. Id. at n3.
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