J-S81001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    BRIAN DAVID SMITH                          :
                                               :   No. 395 MDA 2017
                       Appellant               :

             Appeal from the Judgment of Sentence January 3, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0005199-2013


BEFORE:      PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                 FILED APRIL 24, 2018

        Brian David Smith appeals from the judgment of sentence imposed after

a jury convicted him of various crimes arising from his sexual abuse of a ten-

year-old girl. He claims the trial court erred in permitting the Commonwealth

to present evidence of his prior sexual abuse of a child. He further contends

the court erred in denying his request for a continuance and notice of alibi

defense after the Commonwealth amended the dates contained in the

information on the eve of trial. In his final issues, Smith argues the prosecutor

engaged in misconduct by referencing Jerry Sandusky in closing arguments

and that the evidence at trial was insufficient to sustain his conviction for


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   Retired Senior Judge assigned to the Superior Court.
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aggravated indecent assault. None of Smith’s issues merit relief, and we

therefore affirm.

      For readability purposes, we will address Smith’s issues out of order.

Smith claims the evidence presented by the Commonwealth at trial was

insufficient to support his conviction for aggravated indecent assault. Our

standard of review for a challenge to the sufficiency of the evidence is to

determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crimes charged

is established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003).

      “[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Commonwealth v. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder. See Commonwealth

v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an appellate court, we

do not assess credibility nor do we assign weight to any of the testimony of

record.” Id. (citation omitted). Therefore, we will not disturb the verdict

“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.” Bruce,

916 A.2d at 661 (citation omitted).




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      Aggravated indecent assault requires “penetration, however slight, of

the genitals….” 18 Pa.C.S.A. § 3125(a). The definition encompasses merely

digital penetration. See Commonwealth v. Gonzalez, 109 A.3d 711, 723

(Pa. Super. 2015). It also covers “oral contact with the female genitalia.”

Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. Super. 1992). Penetration

is not limited to penetration of the vagina; “entrance in the labia is sufficient.”

Commonwealth v. Hunzer, 868 A.2d 498, 505-506 (Pa. Super. 2005)

(citation omitted). If believed by the fact-finder, a victim’s uncorroborated

testimony is sufficient evidence to prove such penetration occurred. See

Trimble, 615 A.2d at 50.

      Smith argues there is no evidence capable of supporting an inference

that he penetrated the victim’s genitals. The trial court found the victim’s

testimony that Smith “would rub – rub down there and … try to make me have

an orgasm” was sufficient to allow the jury to infer labial penetration. Smith

asserts this inference constitutes mere surmise.

      We agree with the trial court. The victim testified that Smith would rub

her genitals in an attempt to cause her to experience an orgasm. See N.T.,

Jury Trial, 4/18 and 19/16, at 86. Furthermore, she testified she could feel his

tongue on her vagina. See id. This testimony is sufficient to allow the jury to

infer Smith digitally and orally penetrated the victim’s labia. He is due no relief

on this claim.




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      Next, Smith claims the trial court erred when it permitted the

Commonwealth to present evidence of his previous sexual abuse of a child. As

the trial court is given discretion on whether to admit evidence, we may

reverse only when it is clear the trial court abused its discretion. See

Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002). The trial

court abuses this discretion only “where the law is not applied or where the

record shows that the action is a result of partiality, prejudice, bias, or ill will.”

Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa. Super. 2010) (citation

omitted).

      The Commonwealth may not present evidence of prior bad acts in a

mere attempt to establish the defendant’s criminal character or proclivities.

See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008);

Pa.R.E. 404(b)(1). Such evidence, however, may be admissible “where it is

relevant for some other legitimate purpose and not utilized solely to blacken

the defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082,

1092 (Pa. Super. 2007) (citation omitted). “[E]vidence of other crimes,

wrongs or acts may be admitted for other purposes, such as proof of motive,

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

mistake or lack of accident.” Pa.R.E. 404(b)(2). A common scheme or plan is

present when the circumstances surrounding two or more crimes are so

related to each other that “proof of one tends to prove the other.”

Commonwealth v. O’Brien, 836 A.2d 966, 969 (Pa. Super. 2003). To


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determine whether a common plan is established, we must examine the

similarities between the crimes to determine if they are distinctive. See id.

      The Commonwealth presented the testimony of K.S. She testified Smith

was her grandmother’s husband when K.S. was 7 or 8 years old. N.T., Jury

Trial, 4/18 and 19/16, at 115-116. When she would visit her grandmother,

Smith would masturbate in front of her. See id., at 117. One time, he pressed

his penis to her vagina. See id., at 117-118. Smith pled guilty to this abuse

in 1997.

      The trial court held this testimony was admissible as evidence of a

common plan or scheme utilized by Smith. In support of this conclusion, the

court noted several similarities between the testimony of the victim and the

testimony of K.S. First, both victims were the granddaughters of women who

were married to Smith at the time of the abuse. Second, both victims were

prepubescent girls. Third, the assaults occurred in the living room of Smith’s

home. And finally, the assaults would end with Smith masturbating to

ejaculation.

      The record amply supports these similarities. Furthermore, the trial

court’s reasoning is not unreasonable. Evaluating the totality of the

circumstances, a reasonable person could conclude these similarities

constituted a common scheme that Smith utilized to victimize the girls. Smith

is due no relief on this claim.




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       Next, Smith presents a tripartite argument premised upon the

Commonwealth’s modification of the information mere days before trial. First,

he contends the court erred in allowing the Commonwealth to amend the

information.

       The criminal information “is a formal written statement charging the

commission of an offense signed and presented to the court by the attorney

for the Commonwealth after a defendant is held for court….” Pa.R.Crim.P.

103. The information apprises the defendant of the filed charges so he can

prepare a defense. See Commonwealth v. Sinclair, 897 A.2d 1218, 1223

(Pa. Super. 2006).

       Pennsylvania Rule of Criminal Procedure 564 permits the amendment of

the information “when there is a defect in form, the description of the

offense(s), the description of any person or any property, or the date charged,

provided the information as amended does not charge an additional or

different offense.”1     Rule 564 seeks “to ensure that a defendant is fully

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1 After the trial of this case, but just prior to sentencing, the Supreme Court
of Pennsylvania amended this Rule to read:

       The court may allow an information to be amended, provided that
       the information as amended does not charge offenses arising from
       a different set of events and that the amended charges are not so
       materially different from the original charge that the defendant
       would be unfairly prejudiced. Upon amendment, the court may
       grant such postponement of trial or other relief as is necessary in
       the interests of justice.




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apprised of the charges, and to avoid prejudice by prohibiting the last minute

addition of alleged criminal acts of which the defendant is uninformed.”

Sinclair, 897 A.2d at 1221 (citation omitted). To determine whether these

goals have been met, we must evaluate whether the amended information’s

allegations involve different elements or a different factual basis. See id. If

not, we presume the amendment did not prejudice the defendant. See id.

       On the other hand, if the amended information does significantly alter

the elements or the factual basis of the crime we must determine whether the

amended information prejudices the defendant. See id., at 1221-1223. A

court must consider a number of factors in determining whether an

amendment results in prejudice:

       (1) whether the amendment changes the factual scenario
       supporting the charges; (2) whether the amendment adds new
       facts previously unknown to the defendant; (3) whether the entire
       factual scenario was developed during a preliminary hearing; (4)
       whether the description of the charges changed with the
       amendment; (5) whether a change in defense strategy was
       necessitated by the amendment; and (6) whether the timing of
       the Commonwealth’s request for amendment allowed for ample
       notice and preparation.

Id. (citation omitted).

       Here, the Commonwealth amended the information to indicate that the

assaults occurred during the summer of 2007, as opposed to the summer of



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This amendment was not intended to alter current practice; rather, it was to
“more accurately reflect the interpretation of this rule that has developed since
it first was adopted in 1974.” Pa.R.Crim.P. 564, Comment (citations omitted).

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2006. Under the circumstances of this case, we agree with the trial court this

modification did not alter the elements of the crimes or the factual basis of

the crimes alleged. The amended information comported with the testimony

presented at the preliminary hearing, and only represented a correction of the

time period involved. Thus, the court did not err in permitting the amendment.

       However, in the second part of his argument, Smith asserts the

amendment modified his defense strategy such that it would now include an

alibi. If true, the modification of the information on the eve of trial would

prejudice Smith if the court did not subsequently allow him to file a notice of

alibi defense.2 Here, the court denied Smith’s request to file a notice of alibi

defense nunc pro tunc.

       In denying the notice of alibi, the trial court noted Smith had violated

Pa.R.Crim.P 567(A)(2) by not identifying any of the witnesses who would

testify to his alibi. While it is true that the late amendment of the information

may have impacted Smith’s ability to explicitly identify these witnesses, it is

also true that Smith has made no attempt since, including in his appellate

brief, to explicitly identify these potential witnesses. Based upon this record,

we cannot conclude the trial court erred in denying the notice of alibi defense.




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2Under the Rules of Criminal Procedure, a defendant who intends to present
an alibi defense must file a notice of alibi defense. See Pa.R.Crim.P. 567(A).
This notice must be filed no later than the deadline for an omnibus pretrial
motion. See id.

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          In his final claim based upon the amendment of the information, Smith

argues the trial court erred in dismissing his request for a continuance. He

contends the late amendment of the information required more preparation

for trial. The trial court denied the requested continuance.

          For the same reasons set forth above regarding allowing the

amendment, we find the trial court did not err. The amended information did

not fundamentally change the allegations or legal theories Smith faced at trial.

The testimony at trial was nearly identical to the testimony at the preliminary

hearing. And Smith has not identified any particular prejudice in his appellate

brief, other than the late alibi notice discussed above. Thus, Smith’s claims

based upon the Commonwealth’s modification of the information merit no

relief.

          In his final claim, Smith argues the trial court should have declared a

mistrial when the prosecutor referenced Jerry Sandusky, an infamous

convicted sexual predator, in her closing argument.

          It is well established that a prosecutor is permitted to vigorously
          argue his case so long as his comments are supported by the
          evidence or constitute legitimate inferences arising from that
          evidence.

             In considering a claim of prosecutorial misconduct, our
             inquiry is centered on whether the defendant was deprived
             of a fair trial, not deprived of a perfect one. Thus, a
             prosecutor’s remarks do not constitute reversible error
             unless their unavoidable effect ... [was] to prejudice the
             jury, forming in their minds fixed bias and hostility toward
             the defendant so that they could not weigh the evidence
             objectively and render a true verdict. Further, the allegedly


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          improper remarks must be viewed in the context of the
          closing argument as a whole.

Commonwealth v. Luster, 71 A.3d 1029, 1048 (Pa. Super. 2013) (en banc)

(internal quotation marks and citations omitted; brackets in original).

      The prosecutor began her closing argument:

      When I came before you yesterday and talked about secrets,
      those were secrets the defendant wanted kept. And you heard
      [the victim] testify that after the defendant sexually abused her,
      he told her not to tell because he didn’t want for her grandmother
      and him to fight. And she kept those secrets for six years until she
      realized what was happening to her wasn’t right. She told you
      from that stand that she was seeing things in the media. Ladies
      and gentlemen, I submit to you that’s around the time where a
      little known man named Mr. Sandusky was being charged and
      tried for his –

N.T., Jury Trial, 4/18 and 19/16, at 150.

      The trial court found this reference did not have the unavoidable effect

of unfairly prejudicing the jury. We agree. While this reference stretches the

boundaries of fair inference from the record, the prosecutor did not compare

Smith’s crimes to Sandusky’s. The prosecutor explicitly used the reference

to buttress the credibility of the victim in light of the passage of time between

the crimes and the victim’s report to authorities. This did not create a fixed

hostility in the jury towards Smith. As such, Smith’s final issue on appeal

merits no relief.

      As none of Smith’s issues on appeal are meritorious, we affirm the

judgment of sentence.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/24/18




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