Com. v. Smith, W.

J-S56023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

WILLIAM F. SMITH

Appellant No. 1580 EDA 2016

Appeal from the Judgment of Sentence Entered April 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007605-2011

BEFORE: BOWES, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 30, 2017

Appellant, William F. Smith, appeals from the April 15, 2016 judgment

of sentence imposing 11½ to 23 months of incarceration followed by eight

years of probation for indecent assault of a child, endangering the welfare of

a child, corruption of the morals of a minor, and unlawful contact with a

minor.1 We affirm.

The trial court recounted the following facts:

The complainant, S.M., a minor at the time of the crime, is
the maternal niece of [Appellant]. [Appellant] was also a pastor
at Truth Memorial Baptist Church, where S.M. and her family were
congregants. In 2002, when S.M. was seven years old, she would
go to [Appellant’s] house to play with his children. On one
occasion, S.M. testified that she and [Appellant] were alone on a
____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3126(a)(7), 4304, 6301, 6318, respectively.
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couch in his basement. [Appellant] forced her to put her hand
down his pants and touch his penis, while he put his hand down
her pants and touched her vagina. On another occasion,
[Appellant] and S.M. were in [Appellant’s] bedroom alone. S.M.
testified that [Appellant] got on top of her and started ‘grinding’
on her. Additionally, during this time period, S.M. testified that
[Appellant] would give her small sums of money, while not giving
any to his own children. All of these events happened over the
course of a few months, however S.M. could not recall exactly the
time frame. S.M. did not report any of these incidents to anyone
at any time.

In January of 2011, S.M. was in a relationship with [D.M.].
He was also a congregant at Truth Memorial. [D.M.] testified that
he had a dream that S.M. was not being truthful with him and she
was hiding a secret. [D.M.] then asked S.M. about that dream,
and S.M. admitted to him that [Appellant] had sexually abused
her when she was young.

At trial, evidence was presented that [Appellant] had similar
interactions with young girls that were congregants of his church.

Trial Court Opinion, 3/1/16, at 2-3 (record citations omitted).

On October 15, 2015, at the conclusion of a lengthy trial, a jury found

Appellant guilty of the aforementioned offenses. On April 15, 2016, the trial

court sentenced Appellant as set forth above. Appellant filed this timely

appeal on May 13, 2016. He presents two questions for review:

I. Is Appellant entitled to an arrest of judgment with
regard to his convictions for unlawful contact with a minor,
indecent assault of a child, endangering the welfare of a child and
corruption of the morals of a minor since the evidence is
insufficient to sustain the verdicts of guilty as the Commonwealth
failed to sustain its burden of proving Appellant’s guilt beyond a
reasonable doubt?

II. Is Appellant entitled to a new trial as a result of the
pretrial court’s pretrial ruling that granted the Commonwealth’s
motion to admit evidence of other crimes and/or bad acts?

Appellant’s Brief at 4. We will consider these questions in turn.

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Our standard for reviewing a challenge to the sufficiency of the evidence

is well-settled:

When evaluating a sufficiency claim, our standard is
whether, viewing all the evidence and reasonable inferences in the
light most favorable to the Commonwealth, the factfinder
reasonably could have determined that each element of the crime
was established beyond a reasonable doubt. This Court considers
all the evidence admitted, without regard to any claim that some
of the evidence was wrongly allowed. We do not weigh the
evidence or make credibility determinations. Moreover, any
doubts concerning a defendant’s guilt were to be resolved by the
factfinder unless the evidence was so weak and inconclusive that
no probability of fact could be drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal

denied, 29 A.3d 796 (Pa. 2011).

We begin our analysis with Appellant’s conviction for indecent assault of

a child, under § 3126(a)(7) of the Crimes Code:

(a) Offense defined.--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 person or the complainant and:

[…]

(7) the complainant is less than thirteen years of age[.]

18 Pa. C.S.A. § 3126(a)(7). Indecent contact is “[a]ny 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. As set forth above, the

victim testified that, while she was seven or eight years old, Appellant forced

her to touch his penis while he touched her vagina. The jury found the victim

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credible, and her testimony is plainly sufficient to meet the criteria of

§ 3126(a)(7). Further, “it is well-established that the ‘uncorroborated

testimony of the complaining witness is sufficient to convict a defendant of

sexual offenses.’” Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.

Super. 2005).

Appellant argues that his “character and position as a church pastor are

at odds with [the victim’s] allegations of inappropriate conduct.” Appellant’s

Brief at 20. Appellant also argues that defense witnesses established that he

had no opportunity to commit the offenses the victim alleged, that no other

witnesses supported the victim’s account, and that her delay in reporting

inhibited collection of physical evidence. Id. Notwithstanding the foregoing,

Appellant insists he is not challenging the weight of the evidence (an issue he

did not preserve). Id. He argues that the “delay in reporting and the

surrounding circumstances impact the sufficiency of the evidence.” Id.

Appellant is incorrect. His argument is nothing other than a challenge

to the victim’s credibility, and credibility challenges are not cognizable in a

sufficiency of the evidence claim. Commonwealth v. Palo, 24 A.3d 1050,

1055 (Pa. Super. 2011), appeal denied, 34 A.3d 828 (Pa. 2011). Our

Supreme Court has explained the distinction between weight and sufficiency

of the evidence claims:

[W]e find it necessary to delineate the distinctions between
a claim challenging the sufficiency of the evidence and a claim that
challenges the weight of the evidence. The distinction between
these two challenges is critical. A claim challenging the sufficiency

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of the evidence, if granted, would preclude retrial under the
double jeopardy provisions of the Fifth Amendment to the United
States Constitution, and Article I, Section 10 of the Pennsylvania
Constitution, […] whereas a claim challenging the weight of the
evidence if granted would permit a second trial.

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.’

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citations

omitted) (emphasis added). The bolded phrase is a succinct summary of

Appellant’s argument. He cannot obtain relief because he has failed to

preserve a challenge to the weight of the evidence.

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Appellant offers similar arguments concerning his other convictions, and

they fail for the same reason. Namely, the victim’s credibility is not reviewable

in a challenge to the sufficiency of the evidence. We will address each

conviction briefly.

Regarding endangering the welfare of a child, “[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). In addition to repeating

his weight of the evidence argument, Appellant claims the trial court should

have instructed the jury on the version of the statute that existed in 2002

when the crimes in question occurred. (Section 4304 was subsequently

amended in 2007.) Appellant’s Brief at 22. Appellant acknowledges that he

did not object to the instruction, thus rendering this issue waived. Pa.R.A.P.

302(a). In any event, Appellant fails to explain whether there is any

substantive difference between the earlier and current versions of the statute

and, if so, why it is relevant here.

Appellant also argues, in a single sentence and without citation to the

record or any authority, that he violated no duty of care to the victim.

Appellant’s Brief at 22. Failure to develop an argument with citation to the

record and pertinent legal authority results in waiver. Pa.R.A.P. 2119(b), (c);

Commonwealth v. Williams, 959 A.2d 1252, 1258 (Pa. Super. 2008). We

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observe that our Supreme Court has held § 4304 to be applicable to religious

authorities. Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015).

Next, we address Appellant’s conviction for corruption of minors:

Except as provided in subparagraph (ii), whoever, being of
the age of 18 years and upwards, by any act 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 any crime, or who knowingly assists or encourages
such minor in violating his or her parole or any order of court,
commits a misdemeanor of the first degree.

18 Pa.C.S.A. § 6301(a)(i). Appellant argues, without citation to the record or

any pertinent authority, that “[e]ven if it is assumed that Appellant had

inappropriate conduct with [the victim], this does not mean her morals were

corrupted or that Appellant intended to corrupt her morals.” Appellant’s Brief

at 23. As noted above, failure to develop an argument with citation to the

record and pertinent authority results in waiver. Pa.R.A.P. 2119(b), (c);

Williams, 959 A.2d at 1258. Regardless of waiver, we note that sexual

offenses against a victim have been held to support a conviction under § 6301.

Castelhun, 889 A.2d at 1234.

Finally, we consider Appellant’s conviction for unlawful contact with a

minor:

(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:

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(1) Any of the offenses enumerated in Chapter 31 (relating
to sexual offenses).

18 Pa. C.S.A. § 6318(a)(1). Appellant argues, contrary to the victim’s

testimony, that that the record fails to establish that he touched the victim’s

genitals or forced her to touch his. Appellant’s Brief at 19. Appellant relies

on evidence of his character and standing in the community, and on the

victim’s delay in report. He insists that “[t]his is not merely a question of the

weight of the evidence.” We have already explained the invalidity of this

argument. In summary, we have considered and rejected Appellant’s

challenges to the sufficiency of the evidence in support of his convictions.

Next, Appellant argues the trial court erred in granting the

Commonwealth’s pretrial motion to admit evidence of Appellant’s other bad

acts. We review the trial court’s evidentiary ruling for abuse of discretion.

Commonwealth v. Kennedy, 959 A.2d 916, 923 (Pa. 2008), cert. denied,

556 U.S. 1258 (2009). Pennsylvania Rule of Evidence 404 provides that

“[e]vidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person

acted in accordance with the character.” Pa.R.E. 404(b)(1). But other acts

evidence “may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Pa.R.E. 404(b)(2). The Commonwealth must

establish that “the probative value of the evidence outweighs its potential for

unfair prejudice.” Id. “In order for other crimes evidence to be admissible,

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its probative value must outweigh its potential for unfair prejudice against the

defendant, Pa.R.E. 404 (b)(2), and a comparison of the crimes proffered must

show a logical connection between them and the crime currently charged.”

Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017) (plurality), cert.

denied, ___ S. Ct. ___ (Oct. 2, 2017).2

“In comparing the methods and circumstances of separate crimes, a

court must necessarily look for similarities in a number of factors, including:

(1) the manner in which the crimes were committed; (2) weapons used; (3)

ostensible purpose of the crime; (4) location; and (5) type of victims.”

Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009),

appeal denied, 986 A.2d 1250 (Pa. 2009). “Remoteness in time between

the crimes is also factored, although its probative value has been held

inversely proportional to the degree of similarity between crimes.” Id.

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2 The Hicks Court’s analysis of Rule 404(b) did not garner a majority. Justice
Dougherty, joined by Justices Todd and Mundy, held the other acts evidence
to be admissible. Chief Justice Saylor concurred in that result but offered a
different rationale. Hicks, 156 A.3d at 1130-39 (Saylor, C.J. concurring).
Justice Baer found the evidentiary ruling to be a “close call” but concluded any
error was harmless. Id. at 1139 (Baer, J. concurring). Justice Donohue
argued that the evidentiary ruling was erroneous, and that the decisional law
under Rule 404(b) has come unmoored from its underlying common law
rationale. Id. at 1143-57 (Donohue, J. dissenting). Justice Wecht agreed
with much of Justice Donohue’s analysis but believed the error to be harmless.
He dissented because the Commonwealth consistently maintained that the
other acts evidence was crucial to its case. Id. at 1157-59 (Wecht, J.
dissenting). Instantly, we must confine our analysis to binding precedent from
our Supreme Court and this Court.

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In Commonwealth v. Arrington, 86 A.3d 831 (Pa. 2014), the

defendant stood trial for the murder of his girlfriend. The Commonwealth

introduced evidence that the defendant assaulted three other ex-girlfriends

when they tried to break up with him or interacted with other men. Id. at

842. In one prior instance, the defendant burned the victim’s apartment and

assaulted her brother. Id. at 843. In a second, he pistol-whipped the victim

on two occasions. Id. The defendant also used an axe to assault a male

acquaintance of the pistol-whipping victim. Id. The third female victim

testified that the defendant punched her in the face when she smiled at a

group of men on the beach. Id. at 844. After the victim broke off the

relationship, the defendant stalked her and threatened her and her family with

death. Id. The Supreme Court found the prior acts admissible as evidence

of a common scheme:

In each instance, Appellant: (1) monitored his girlfriend’s
daily activities; (2) resorted to violence when his partner wanted
to end a relationship or interacted with other men; (3) inflicted
head or neck injuries with his fist, a handgun, or an edged
weapon; and (4) harmed or threatened to harm members of his
girlfriend’s family or male acquaintances that he viewed as
romantic rivals.

Id. The evidence was sufficiently probative because it illustrated “a distinct

behavioral pattern that strengthened the prosecution’s case, which consisted

entirely of circumstantial evidence[.]” Id. at 844-45. The prior incidents

proved the defendant would use deadly force to prevent a woman from leaving

him, and the trial court’s limiting instructions were sufficient to avoid any

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unfair prejudice to the defendant’s case. Id. at 845. Then-Justice Saylor

dissented, noting that decisional law under Rule 404(b) was moving “further

and further away from the centering ground of signature crimes.” Id. at 860-

61 (Saylor, J. dissenting).

In Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. 2010),

appeal denied, 4 A.3d 157 (Pa. 2010), a jury found the defendant guilty of

sexually assaulting his biological daughter when she was fourteen years old.

The assault occurred in the defendant’s bedroom. He played a pornographic

movie and massaged the victim’s shoulders, thighs, buttocks, and crotch. Id.

at 1182-83. After the victim prevented Appellant from removing her belt, the

defendant “groped and satisfied himself against his daughter.” Id. at 1183.

At trial, the Commonwealth presented the testimony of a thirty-two-year old

half-sister of the victim. The victim and her half-sister were unacquainted.

The half-sister testified that she stayed at Appellant’s apartment occasionally

when she was fifteen years old. Id. On one occasion, the defendant played

a pornographic movie and raped her. Id. We concluded the PCRA3 court

properly denied relief because the evidence was admissible as a common

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3 On direct appeal, this Court concluded the defendant waived his challenge
to the other acts evidence, but also noted that the trial court’s ruling was
correct. Aikens, 990 A.2d at 1184. We acknowledged that when a decision
rests on two equally valid grounds, neither is obiter dictum. Id. (quoting
Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa.2009)). We analyzed
the merits in the event Reed did not apply “because the explanation of the
basis for our direct-appeal merits resolution was unduly truncated.” Id.

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scheme. Id. at 1185. The victims were similar in age when the assaults

occurred, both were the defendant’s biological daughters, both assaults

occurred during an overnight visit with the defendant in the defendant’s bed

while the defendant played a pornographic movie. Id. at 1185-86. “These

matching characteristics elevate the incidents into a unique pattern that

distinguishes them from a typical or routine child-abuse factual pattern.” Id.

at 1186. Moreover, the similarities “were not confined to insignificant details

that would likely be common elements regardless of who committed the

crimes.” Id.

The Aikens Court relied on Commonwealth v. Luktisch, 680 A.2d

877 (Pa. Super. 1996), wherein a jury found the defendant guilty of raping

his stepdaughter when she was eleven years old. The victim’s stepsister, T.L.,

who was twenty-nine years old at the time of trial, testified that the defendant

began having oral sex with her when she was between the ages of five and

eight, and that he began having sexual intercourse with her when she was

eight years old. Id. at 878. Likewise, C.G., the victim’s natural sister and the

defendant’s stepdaughter, testified that the defendant began touching her

breasts and vagina when she was eight years old. Id. The conduct progressed

to oral sex, and eventually intercourse when C.G. was eleven. Id. This Court

upheld the admission of the evidence because the victims were approximately

the same age during the assaults, they were all a daughter or stepdaughter

of the defendant, they were living with the defendant when the assaults

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occurred, and the nature of the defendant’s assault of each was nearly

identical. Id. at 879. Given the similarities, the time lapse between the

various assaults was not significant. Id.

Instantly, the trial court admitted the testimony of N.B., who attended

Appellant’s church with her family when she was young. N.T. Trial, 10/9/15,

at 142. N.B. saw Appellant at the church and also visited his home with her

family. Id. at 146. She viewed Appellant as her stepdad. Id. at 165-66.

N.B. testified that Appellant occasionally gave her money, as much as $100

at a time, and asked her not to tell his wife. Id. at 148. The victim here

testified that Appellant gave her $5 on one occasion and then refused to give

money to his own son. Id. at 14-15. On one occasion when N.B. was 18

years old, Appellant commented on N.B.’s underwear. Id. at 149-150.

Appellant stated, “tastes like candy,” a reference to a slogan Appellant knew

to be printed on a pair of N.B.’s underwear. Id. at 149-150, 212. Appellant

knew this because, at some earlier date, N.B. did her laundry at his house and

Appellant took her clothes out of the dryer. Id. at 212. Shortly thereafter,

when Appellant was dropping N.B. off at her father’s house, Appellant kissed

her on the lips. Id. at 150. N.B. stated, “he tried to go further as far as

kissing me, like—I—I jumped back because of the fact that I felt like he was

putting his tongue in my mouth as he was kissing me.” Id.

N.C., the victim’s half-sister who attended Truth Baptist Church along

with the victim, testified that she viewed Appellant as a father figure. N.T.

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Trial, 10/13/15, at 4-5, 9. She started visiting Appellant’s house when she

was seven or eight years old. Id. at 6. Appellant began by occasionally

kissing N.C. on the lips. Id. at 9. Eventually, he began tongue-kissing her

and fondling her breasts and buttocks. Id. at 10. When N.C. was between

the ages of 10 and 12, Appellant began giving N.C. clothes and money. Id.

at 11. He also began making her touch his penis and touching her vagina.

Id. at 11-12. N.C. terminated an encounter when Appellant took off his pants

and she believed he wanted to have sexual intercourse. Id. at 12. N.C. finally

divulged these experiences to her boyfriend when she was 20 or 21 years old.

Id. at 15. When N.C. was approximately 23 years old, a meeting took place

at the Truth Baptist Church with Emmanuel Lambert, a minister serving as

mediator, to address N.C.’s allegations against Appellant. Id. at 21-22, 49-

50. N.C., her mother and stepfather, Appellant, and Appellant’s wife were

present. No action was taken against Appellant after the meeting. Id. at 24-

25, 50.

Thus, all three victims attended Appellant’s church and commonly

visited Appellant’s home. They received gifts, including gifts of money, from

Appellant and came to view him as a father figure. The conduct occurred

when the victims were alone with Appellant—in his home in two of the three

cases and in his car in the third case. The circumstances of the assaults in

Appellant’s home were nearly identical. N.C. and N.B. both testified they

believed Appellant wanted the sexual conduct to go further.

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Analyzing the prior acts under the Weakley factors (see Weakley, 972

A.2d at 1189), we discern no abuse of discretion in the trial court’s decision

to admit them into evidence as part of a common scheme. The manner in

which Appellant committed the crimes at issue and the prior acts were very

similar in several important respects. Appellant established a father figure

relationship with each victim. They belonged to his church, spent time at his

home, and received gifts from him. Appellant’s sexual conduct toward the

victim and N.C. was very similar—grinding, fondling, and forcing them to touch

his penis while he touched their vaginas. N.B. was older when Appellant

kissed her on the lips, and the incident occurred in a car. But given the

similarities in the way he developed his relationship with N.B., N.C., and the

victim, we do not believe N.B.’s age warrants a different result.

The second Weakley factor—weapons used—is inapplicable. The third

factor—ostensible purpose of the crime—supports the trial court’s ruling. The

evidence supports a conclusion that Appellant sought sexual gratification from

young girls who trusted him and viewed him as a father figure and religious

leader. Location, the fourth factor, supports the trial court’s decision. Two of

the acts happened in the Appellant’s home; the third in his car. All three acts

occurred on or in Appellant’s property when no others were present. The fifth

factor, type of victim, strongly supports the trial court’s decision. As we have

explained, all three victims were young females who viewed Appellant as a

father figure after attending his church, spending time in his home, and

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getting to know him. Given these circumstances, the difference in age among

the victims is not significant. We recognize that Weakley sets forth a

nonexclusive list of relevant considerations. Here, we find Weakley useful in

addressing the arguments Appellant raised in opposition to the trial court’s

admission of prior acts evidence.

In summary, the similarities among the victim’s assault and the prior

bad acts involve more than insignificant details. See Aikens, 990 A.2d at

1185-86. As was the case in Arrington, Appellant exhibited a distinct

behavioral pattern evidencing a common scheme or pattern that significantly

strengthened the Commonwealth’s case. See Arrington, 86 A.3d at 844-45.

In Arrington, the prior acts evidence helped prove guilt because the

Commonwealth had only circumstantial evidence of Appellant’s guilt. Here,

the Commonwealth had only the recollection of a victim who was seven or

eight years old at the time of the assaults in 2002. Trial took place in 2016.

In addition, as in Arrington, the trial court issued limiting instructions

governing the jury’s consideration of the other acts evidence, thus limiting the

potential for unfair prejudice. N.T. Trial, 10/15/15, at 83. For all of the

foregoing reasons, we conclude the trial court did not abuse its discretion in

admitting evidence of Appellant’s prior acts.

In summary, we conclude the record contains sufficient evidence in

support of Appellant’s convictions. We find no abuse of discretion in the trial

court’s evidentiary ruling. We therefore affirm the judgment of sentence.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2017

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