J-A07040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CARL WILLIAM SMITH, IV

                            Appellant                 No. 643 WDA 2015


            Appeal from the Judgment of Sentence January 28, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0002247-2013


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED APRIL 13, 2016

        A jury found Carl Smith, IV guilty of unlawful contact with a minor,

corruption of minors and indecent assault.1 Prior to sentencing, Smith made

an oral motion challenging the weight of the evidence. The trial court denied

the motion and sentenced Smith to 1-2 years’ imprisonment.          Smith filed

timely post-sentence motions, which the court denied, and a timely notice of

appeal. Both Smith and the trial court complied with Pa.R.A.P. 1925. We

affirm.

        Smith raises two issues in this appeal:

     1. Did the trial court err in denying, at trial, [Smith’s] motion for
        judgment of acquittal on the charges of unlawful contact with a
        minor, corruption of minors and indecent assault - less than 13
        years of age?
____________________________________________


1
    18 Pa.C.S. §§ 6318(a)(1), 6301(a)(1)(ii) and 3126(a)(7), respectively.
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   2. Did the trial court err in denying [Smith’s] oral motion, prior to
      sentencing, for the award of a new trial and/or an arrest of
      judgment alleging that the verdict of guilty entered against
      [Smith] in the above-captioned matter was against the weight of
      the evidence?

Brief For Appellant, at 7.

         Smith’s first argument is a challenge to the sufficiency of the evidence.

When examining a challenge to the sufficiency of evidence, the standard we

apply is

         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. In applying [the above] test, we
         may not weigh the evidence and substitute our judgment for the
         fact-finder. In addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence. Any doubts regarding a defendant’s guilt
         may be resolved by the fact-finder unless the evidence is so
         weak and inconclusive that as a matter of law no probability of
         fact may be drawn from the combined circumstances. The
         Commonwealth may sustain its burden of proving every element
         of the crime beyond a reasonable doubt by means of wholly
         circumstantial evidence. Moreover, in applying the above test,
         the entire record must be evaluated and all evidence actually
         received must be considered. Finally, the [trier] of fact while
         passing upon the credibility of witnesses and the weight of the
         evidence produced, is free to believe all, part or none of the
         evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011).

         The trial court accurately summarized the evidence adduced during

trial:

         During the trial which was held January 6 - January 7, 2015, the
         victim, J.P., was nine years old, but [she was] seven years of
         age when the crimes occurred.       She told the jury that in
         December 2012, [Smith] lived in a two-story apartment with his

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      wife and their daughter, Jasmine, with whom the victim was
      friends. The victim stayed at the apartment overnight. On one
      occasion when she stayed overnight in late December 2012, J.P.
      saw [Smith] in his bedroom on his bed, loading a movie that she
      had watched previously onto his laptop computer. Because she
      knew she liked the movie, J.P. asked [Smith] if she could watch
      it. As J.P. was on the bed watching the movie, [Smith] put his
      hands on her face and kissed her, then put his hand on her
      private part and rubbed her, both outside and inside her clothes.

Pa.R.A.P. 1925(a) Opinion, at 1-2. The record also establishes that Smith

touched J.P.’s vagina, which she referred to as her “peach”. N.T., 1/6/15, at

15.

      A person is guilty of indecent assault if, inter alia, he has indecent

contact with the complainant when the complainant is less than 13 years of

age. 18 Pa.C.S. § 3126(a)(7). “Indecent assault” includes “any 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. § 3101.

      Smith argues that there is no evidence that he touched J.P.’s sexual or

other intimate parts for the purpose of arousing or gratifying sexual desire.

We disagree. This Court rejected a similar argument in Commonwealth v.

Evans, 901 A.2d 528 (Pa.Super.2006), as follows:

      Appellant submits that ‘a kiss on the mouth is not the type of
      conduct the statute was intended to prevent.’ … He argues that
      ‘there was no touching of an intimate part of the victim's person
      for the purpose of arousing or gratifying sexual desire.’ We
      disagree. Quite to the contrary, the act of wrapping one's arms
      around another person and inserting one's tongue into another's
      mouth clearly involves the touching of an intimate part of that
      person. We agree with the Commonwealth that such an act does
      not occur outside of the context of a sexual or intimate situation.


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Id. at 533. The same logic applies here. Smith’s acts of putting his hands

on J.P’s face, kissing her and then touching her vagina simply do not occur

outside of a sexual or intimate situation. These reprehensible acts were for

the purpose of arousing or gratifying Smith’s sexual desire.

      Smith also argues that the Commonwealth failed to prove absence of

consent by J.P. to Smith’s conduct.         It was not necessary for the

Commonwealth to prove lack of consent. It charged Smith under 18 Pa.C.S.

§ 3126(7), which only requires proof of indecent contact with a complainant

who is less than 13 years old.    Proof of lack of consent is only necessary

under section 3126(1), a different subsection which Smith was not charged

with violating.

      The evidence was also sufficient to sustain Smith’s conviction for

corruption of minors under 18 Pa.C.S. § 6301(a)(1)(ii). This provision states

in relevant part: “Whoever, being of the age of 18 years and upwards, 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 … commits a felony of the third degree.” In this case, the “course of

conduct in violation of Chapter 31” was Smith’s indecent assault under

section 3126(7).   The evidence also established that at the time of the

offense, Smith was over 18 years old and J.P. was less than 18 years old.

      Next, the evidence was sufficient to sustain Smith’s conviction for

unlawful contact under 18 Pa.C.S. § 6318(a)(1), which provides: “A person


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commits an offense if he is intentionally in contact with a minor … for the

purpose of engaging in an activity prohibited under any of the following …

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

The evidence demonstrates that Smith was intentionally in contact with J.P.

for the purpose of engaging in indecent assault, an offense proscribed under

section 3126(7).

      For these reasons, Smith’s challenge to the sufficiency of the evidence

is devoid of merit.

      In his second issue on appeal, Smith insists that the verdict is against

the weight of the evidence. At the outset, we note that Smith preserved this

issue for appeal by verbally objecting to the weight of the evidence during

his sentencing hearing. Pa.R.Crim.P. 607(A)(1).

      The law pertaining to weight of the evidence claims is well-settled. The

weight of the evidence is a matter exclusively for the finder of fact, who is

free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses.   Commonwealth v. Forbes, 867 A.2d 1268,

1273–74 (Pa.Super.2005). A new trial is not warranted because of “a mere

conflict in the testimony” and must have a stronger foundation than a

reassessment of the credibility of witnesses.     Commonwealth v. Bruce,

916 A.2d 657, 665 (Pa.Super.2007). Rather, the role of the trial judge is to

determine that notwithstanding all the facts, certain facts are so clearly of




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greater weight that to ignore them or to give them equal weight with all the

facts is to deny justice. Id.

      On appeal, “our purview is extremely limited and is confined to

whether the trial court abused its discretion in finding that the jury verdict

did not shock its conscience. Thus, appellate review of a weight claim

consists of a review of the trial court's exercise of discretion, not a review of

the underlying question of whether the verdict is against the weight of the

evidence.” Commonwealth v. Knox, 50 A.3d 732, 738 (Pa.Super.2012).

An appellate court may not reverse a verdict unless it is so contrary to the

evidence as to shock one's sense of justice. Forbes, 867 A.2d at 1273–74.

      According to Smith, the verdict is against the weight of the evidence

because J.P. changed her version of events over the course of time.          The

record shows that Smith vigorously contested J.P.’s credibility during trial,

but the jury chose to believe J.P.’s testimony. Having carefully reviewed the

record, we conclude that the trial court acted within its discretion by

declining to find that the verdict is so contrary to the evidence as to shock

its conscience.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2016




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