J-A12022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES THOMAS SMITH :
:
Appellant : No. 917 WDA 2018
Appeal from the Judgment of Sentence Entered December 19, 2017
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-CR-0000532-2016
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JULY 09, 2019
Appellant, James Thomas Smith, appeals from the Judgment of
Sentence entered in the Armstrong County Court of Common Pleas after a
jury found him guilty of Rape, Involuntary Deviate Sexual Intercourse
(“IDSI”), Burglary, Aggravated Indecent Assault, Criminal Trespass, Criminal
Mischief, and Kidnapping.1 On appeal, Appellant challenges the sufficiency of
the evidence supporting his convictions. After careful review, we affirm.
We glean the following factual and procedural history from the certified
record. Appellant and the victim had a three-year romantic relationship that
was fraught with Appellant’s manipulative and controlling behavior, including
____________________________________________
1 18 Pa.C.S. § 3121(a)(2); 18 Pa.C.S. § 3123(a)(2); 18 Pa.C.S. §
3502(a)(1)(ii); 18 Pa.C.S. § 3125(a)(3); 18 Pa.C.S. § 3503(a)(ii); 18 Pa. C.S.
§ 3304(a)(5); and 18 Pa.C.S. § 2901(a)(2), respectively.
J-A12022-19
erratic temper tantrums and threats of violence toward the victim and her
children. The relationship ended in 2012, and in 2013, the victim obtained a
Protection from Abuse Order (“PFA”), which was effective from August 2013
through August 2016. The PFA prohibited Appellant from having any contact
with the victim, her children, and her parents; it also excluded Appellant from
the victim’s residence. Despite the PFA, Appellant continued to contact the
victim, and made multiple threats to the victim and her children.
On June 24, 2016, Appellant saw the victim with another man at an ice
cream store, and confronted her, stating “I told you what would happen if I
ever saw you with anyone, and this is not done. I promise you tonight this
will be done. I promise you that it will be over.” N.T. Trial, 10/11/17, at 55.
Throughout that evening, Appellant sent the victim numerous text messages
and voicemails. Appellant also parked his car approximately one half mile
from the victim’s house, and sat in the woods watching her house all evening.
At approximately 3:00 AM on June 25, 2016, Appellant broke into the
victim’s home using a pipe wrench. He then entered her bedroom, and locked
the bedroom door. The victim went to the bathroom at one point with her cell
phone and texted the neighbors for help.2 When she returned to the bedroom,
Appellant raped her. After several hours, Appellant took the victim’s cell
____________________________________________
2 The neighbors and the victim had an agreement that if the victim needed
help because of Appellant, she would text them and they would come over.
Unfortunately, that night the neighbor she texted was out of town and did not
receive the text until the morning.
-2-
J-A12022-19
phone, told her to lie if anyone asked why her door frame was broken, and
forced her to drive him to his car.
The Commonwealth arrested Appellant and charged him with the above
crimes.3 The Criminal Information for the Rape, IDSI, and Aggravated
Indecent Assault (collectively referred to as the “Sexual Assault Charges”)
alleged that Appellant engaged in sexual acts with the victim as a result of
verbal threats he made before he attacked her and while he attacked her.
A jury trial commenced on October 11, 2017, at which the victim and
Appellant testified. The jury found Appellant guilty of Rape, IDSI, Burglary,
Aggravated Indecent Assault, Criminal Trespass, Criminal Mischief, and
Kidnapping. The court sentenced Appellant to 216 to 432 months’
imprisonment.
Appellant filed Post-Sentence Motions, which the trial court denied.
Appellant timely appealed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents the following questions for our review:
1. “In criminal trials the proof offered by the Commonwealth must
measure up to the charge made in the” Information. Here,
when outlining the factual basis supporting the sex offenses,
the Information specifically alleged that [Appellant] threatened
[the victim] by “telling her that he would not harm her as long
as she complied” with his sexual requests. At trial, however,
the Commonwealth failed to prove that allegation. Thus, the
“proof” failed to “measure up to the charge made in the”
____________________________________________
3The Commonwealth also charged Appellant with Stalking. See 18 Pa.C.S. §
2709.1(a)(1). The jury acquitted him of that charge.
-3-
J-A12022-19
Information. Was the evidence insufficient to support
[Appellant’s] sex convictions?
2. The predicate crime for the Burglary charge was this:
[Appellant] entered [the victim]’s home with the intent to
commit a sex offense. But, at trial, the Commonwealth failed
to prove that [Appellant] committed a sex offense. Was the
evidence also insufficient to support [Appellant’s] Burglary
conviction?
Appellant’s Br. at 3 (quotation marks in original).
In his first issue, Appellant contends that because the Commonwealth
failed to present evidence at trial to support one of the allegations in the
Criminal Information, the Commonwealth failed to present sufficient evidence
to support the conviction of the Sexual Assault Charges. In particular,
Appellant argues that the Criminal Information alleges that Appellant forcibly
compelled the victim to engage in the sexual activity because of the threats
he made while he was sexually assaulting her. Appellant concludes that since
the victim only testified to threats Appellant made before he sexually
assaulted her, the Commonwealth failed to establish the allegation of forcible
compulsion. Appellant’s Br. at 13-18. Appellant primarily relies on
Commonwealth v. Lambert, 313 A.2d 300 (Pa. Super. 1973).
We review the allegations in the Criminal Information and the evidence
at trial with the following principles in mind. The purpose of a criminal
information is “to advise the accused of the allegations and the crimes
charged, to give sufficient notice to allow the opportunity to prepare a defense,
and to define the issues for trial.” Commonwealth v. Taylor, 33 A.3d 1283,
-4-
J-A12022-19
1287 (Pa. Super. 2011) (citation omitted). “In criminal trials, the proof
offered by the Commonwealth must measure up to the charge made in the
indictment.4” Lambert, 313 A.2d at 301.
While the information is the “star and compass of a criminal charge,” it
should not be read in a hyper-technical manner. Commonwealth v.
Nabried, 399 A.2d 1121, 1122 (Pa. Super. 1979) (en banc); Taylor, 33 A.3d
at 1287. “The court must consider the act in the context in which it is alleged
to have occurred.” Nabried, supra at 1123 (citation omitted). “Extra
information . . . describing the events surrounding the commission of the
crime[s is] mere surplusage.” Commonwealth v. Brandup, 366 A. 2d 1233,
1235 (Pa. Super. 1976). Thus, “evidence which var[ies] from the [surplusage
in the Information] constitute[s], at most, an innocuous variance, harmless in
effect.” Id.
Applying these principles, this Court in Nabried upheld Appellant’s
conviction for Corruption of Minors. 399 A.2d at 1122-23. The Criminal
Information alleged that it was the appellant who removed the victim’s
clothing and at trial the victim testified that she was the one who removed her
clothing. Id. This Court found the discrepancy harmless in effect because the
removal of the victim’s clothing “was accomplished through the instigation and
acts of appellant.” Id. at 1123. This Court agreed with the trial court’s finding
____________________________________________
4A criminal information is a formal criminal charge made by a prosecutor
without a grand-jury indictment. Black’s Law Dictionary (10th ed. 2014).
-5-
J-A12022-19
that the Criminal Information was “sufficient to give the defendant notice of
the nature of the charges against him.” Id.
In this case, the portion of the Criminal Information for the Sexual
Assault Charges at issue provides:
. . . [Appellant] did engage in [the Sexual Assault] with [the Victim], by
threat of forcible compulsion, namely told her that he would not
harm her as long as she complied. He threatened her and her
children in the past with physical harm, that would prevent
resistance by a person of reasonable resolution, in violation of
[Crimes Code dealing with Sexual Assaults.]
Criminal Information, Counts I, II and IV (emphasis added).
Even a cursory review of the Criminal Information refutes Appellant’s
claim. The Criminal Information clearly and unambiguously alleges that
Appellant used “forcible compulsion” as a result of threats Appellant made
before and while he sexually assaulted the victim. Appellant ignores the last
sentence of the counts for Sexual Assault that alleges that Appellant
“threatened [the victim] and her children in the past with physical harm, that
would prevent resistance by a person of reasonable resolution.” Thus,
Appellant’s argument that the Commonwealth failed to establish the forcible
compulsion because the victim did not testify that Appellant threatened her
while he sexually assaulted her has no foundational support.
Appellant’s reliance on Lambert, supra, is also misplaced. In that case,
the Criminal Information alleged that the defendant committed the crime of
Corruption of Minors because he gave a minor “dangerous drugs.” 313 A.2d
at 300. At trial, the Commonwealth did not prove that the “pills were
-6-
J-A12022-19
dangerous drugs.” Id. This Court concluded that since the evidence at trial
did not support the allegation in the Criminal Information that the defendant
gave the minor “dangerous drugs,” the trial court erred in not granting the
motion in arrest of judgment. Id. at 301.
In this case, the Criminal Information alleged both prior threats and
threats while Appellant sexually assaulted the victim to establish “forcible
compulsion.” Since the Commonwealth proved prior threats at trial, the
Commonwealth established the element of “forcible compulsion.” In
Lambert, the Commonwealth only made one allegation regarding the
substance that the defendant gave to the minor to establish the charge of
Corruption of a Minor and when the Commonwealth failed to establish that
one allegation to support the charge, we held that the Commonwealth failed
to meet its burden. Id. In this case, the Commonwealth alleged threats at
two different time periods to establish “forcible compulsion.” Since the
elements of the charge only require the Commonwealth to establish “forcible
compulsion” at one time, the fact that the Commonwealth failed to establish
the allegations at two periods of time does not mean that the Commonwealth
failed to establish any type of forcible compulsion.
Accordingly, we agree with the trial court’s conclusion that Appellant
was aware of the Commonwealth’s allegations, and was not surprised or
prejudiced by the Commonwealth’s evidence that “measure[d] up to the
charge.” Id. Appellant’s claim warrants no relief.
-7-
J-A12022-19
In his second issue, Appellant asserts that the evidence is insufficient to
support his Burglary conviction because the Commonwealth failed to establish
the intent element of the crime. Appellant’s Br. at 21-23. Appellant also
avers, based on the argument set forth in his first issue, that “the evidence
supporting [his] sex convictions was insufficient as a matter of law [so] the
evidence did not support the Burglary charge’s predicate offense(s).” Id.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur standard
of review is de novo and our scope of review is plenary.” Commonwealth v.
Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017) (citation omitted). “We
review claims regarding the sufficiency of the evidence by considering
whether, viewing all the evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to enable the fact-finder to
find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal
quotation marks and citation omitted). “Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact—while
passing on the credibility of the witnesses and the weight of the evidence—is
free to believe all, part, or none of the evidence.” Id. (citation omitted). “In
conducting this review, the appellate court may not weigh the evidence and
substitute its judgment for the fact-finder.” Id. (citation omitted).
-8-
J-A12022-19
Pursuant to the Crimes Code, “[a] person commits the offense of
[B]urglary if, with the intent to commit a crime therein, the person . . .
enters a building or occupied structure, or separately secured or occupied
portion thereof that is adapted for overnight accommodations in which at the
time of the offense any person is present.” 18 Pa.C.S. § 3502(a)(1)(ii)
(emphasis added). Contrary to Appellant’s argument, the Commonwealth
does not have to prove a “predicate offense,” rather only the intent to commit
a crime within the premises.
The trial court summarized the evidence offered by the Commonwealth
to prove that Appellant had the intent to commit a sexual crime at the time
he entered the victim’s home:
There is sufficient evidence in the record indicating that
[Appellant] threatened [the victim] earlier in the day on June 24,
2016. He then appeared at her home early in the morning the
next day with a pipe wrench he brought specifically to break the
lock on the door if he could not otherwise get in. There is sufficient
evidence to prove that [Appellant] went to [the victim’s] home,
after having threatened her, to have sex with her no matter
whether she consented. That evidence establishes the element of
intent at the time [Appellant] entered [the victim’s] home.
Trial Ct. Op. at 6.
Following our review of the record, we agree with the trial court that,
when viewed in the light most favorable to the Commonwealth as verdict-
winner, the evidence was sufficient for the jury to reasonably conclude that
Appellant had the specific intent to commit a sexual crime when he entered
the victim’s home. Appellant threatened the victim the evening of June 24,
-9-
J-A12022-19
2016, stating inter alia, “I promise you tonight this will be done”; texted and
left messages for the victim multiple times later that evening; parked in a
secluded area away from the victim’s home; and brought a pipe wrench to the
victim’s home, which he use to break into the back door of the victim’s house.
Accordingly, the evidence was sufficient to establish that Appellant had the
specific intent to commit a sexual crime, and Appellant is not entitled to relief
on this claim.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2019
- 10 -