J-S71044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LESLIE SMITH

                            Appellant                 No. 1068 WDA 2015


             Appeal from the Judgment of Sentence June 24, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000151-2015


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                             FILED JANUARY 06, 2016

        Leslie Smith appeals from the judgment of sentence imposed on June

24, 2015, in the Court of Common Pleas of Fayette County, following his

conviction by jury on the charge of corruption of a minor.1         Smith was

sentenced to a term of one and one-half to five years’ incarceration, plus 15

years’ registration as a sexual offender pursuant to 42 Pa.C.S. § 9799.23.

In this timely appeal, Smith claims there was insufficient evidence to support

his conviction.    Following a thorough review of Smith’s brief, 2 the certified

record, and relevant law, we affirm.

        Our scope and standard of review are well settled.

____________________________________________


1
    18 Pa.C.S. § 6301(a)(1).
2
    The Commonwealth opted not to file a brief.
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     Because evidentiary sufficiency presents a question of law, our
     standard of review is de novo and our scope of review is plenary.
     Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011),
     cert. denied, --- U.S. ---, 133 S.Ct. 122, 184 L.Ed.2d 58 (2012).
     In reviewing the sufficiency of the evidence, “we must decide
     whether the evidence admitted at trial, and all reasonable
     inferences drawn therefrom in favor of the Commonwealth, as
     verdict winner, support the jury's finding of all the elements of
     the offense beyond a reasonable doubt.” Commonwealth v.
     Mitchell, 588 Pa. 19, 42, 902 A.2d 430, 444 (2006), cert.
     denied, 549 U.S. 1169, 127 S.Ct. 1126, 166 L.Ed.2d 897 (2007)
     (citation omitted).

Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015).

     Regarding the charge of corruption of a minor, the statute states:

        Whoever, being 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)(1).

     The statute requires that the knowing, intentional acts of the
     perpetrator tend to have the effect of corrupting the morals of a
     minor. Commonwealth v. Todd, 502 A.2d 631 (Pa. Super.
     1985).

     This court has visited the question of what constitutes
     “corruption” of a minor's morals before. In Commonwealth v.
     Decker, 698 A.2d 99, 101 (Pa. Super. 1997), we held that
     actions that tended to corrupt the morals of a minor were those
     that “would offend the common sense of the community and the
     sense of decency, propriety and morality which most people
     entertain.”

Commonwealth v. DeWalt, 752 A.2d 915, 918 (Pa. Super. 2000).

     The underlying facts of this matter are straightforward:




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      [Victim], who was born [in] August [], 1998, was sixteen years
      of age when she testified at trial. Her testimony concerned the
      period of time from 2004 to 2007. During that period, she spent
      time at the residence of her grandmother. Also in the residence
      was [Smith] who, at that time, resided with her grandmother.
      [R.H.], [Victim’s] grandmother, confirmed that [Smith] resided
      with her during the period at issue.

      On occasion, [Victim] was alone with [Smith]. As she lay on her
      bed, [Smith] offered her money to show him her private areas.
      After the child removed her pants and underpants [Smith] would
      kneel down at the foot of her bed.         To the best of her
      recollection it occurred on two occasions.

Trial Court Opinion, 8/5/2015, at 2 (citations omitted).

      To briefly supplement the trial court’s recitation, these events occurred

when the Victim was between six and eight years old. N.T. Trial, 4/6/2015,

at 12. Smith would never touch her, he would only look at her. Id. at 21.

Although she only specifically recalled two events, she testified it happened

more often than that. Id. at 22.

      Smith first claims there was insufficient evidence in that there was no

physical evidence, such as fingerprints or DNA, to support the Victim’s

testimony.        This claim is unavailing.          There is no requirement the

Commonwealth present any form of physical or forensic evidence to support

a   conviction.      Further,   it   is   well   settled   that   in   such   cases,   the

uncorroborated testimony of the victim, if believed, is sufficient to support a

conviction.   In Commonwealth v. Bourgeon, 654 A.2d 555 (Pa. Super.

1994), the testimony of an 11 year-old victim that the defendant lured him

into a bathroom where he attempted to clip some manner of “pin toy” onto

the minor’s penis, was sufficient to support a conviction of corruption of


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minors.    Similarly, in Commonwealth v. Stoner, 425 A.2d 1145 (Pa.

Super. 1981), the uncorroborated testimony of a 12 year-old child was

sufficient to support convictions not only of corruption of minors but also of

statutory rape and involuntary deviate sexual intercourse.

       Smith has included in this claim the fact that the Victim did not report

the incidents until several years after they occurred. This claim challenges

the credibility of the Victim, and therefore, the weight of the evidence, not

the sufficiency. See generally, Commonwealth v. Lane, 555 A.2d 1246

(Pa.   1989)   (lack   of   prompt   complaint   is   an   issue   of   credibility);

Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015) (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 determine the

credibility of the witnesses). However, Smith did not preserve a weight of

the evidence claim. Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa.

Super. 2014) (a weight of the evidence claim must be preserved either in a

post-sentence motion, by a written motion before sentencing, or orally prior

to sentencing; Pa.R.Crim.P. 607).

       Accordingly, the victim’s testimony, without scientific corroboration,

was sufficient to support Smith’s conviction.

       Next, Smith argues the evidence was insufficient to demonstrate his

actions corrupted or tended to corrupt the moral of any minor.               In this

regard, he likens the evidence presented against him to the evidence

presented in Commonwealth v. Rodriguez, 442 A.2d 803 (Pa. Super.

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1982). In Rodriguez, a seven year old girl testified she was sitting in an

alley near her home when Rodriguez entered the alley, faced a wall, and

then “shaked his bird.” Id. at 804. Rodriguez’ conviction for corrupting a

minor was vacated because a panel of our Court determined the actions did

not tend to “produce, encourage or continue delinquent conduct on the part

of the minor who observed it.” Id. at 806.

      We note that the factual circumstances of Rodriguez, a situation

consistent with public urination, are vastly different from the instant facts

wherein Smith paid the victim to disrobe so he could view her. Accordingly,

we do not believe the standard used in Rodriguez is applicable herein.

Rather, the applicable standard used to measure a defendant’s actions as

tending to corrupt the moral of a minor is whether the defendant’s conduct

violated “the common sense of the community, as well as the decency,

propriety   and   the   morality   which   most   people   entertain.”   See

Commonwealth v. Decker, 698 A.2d 99, 101 (Pa. Super. 1997).

Additionally, the evidence may support a conviction of corruption of a minor

even without proof that the defendant’s action did, in fact, corrupt the moral

of the minor. See also Commonwealth v. Mumma, 414 A.2d 1026 (Pa.

1980). Our review of the certified record confirms that the jury was properly

charged, without objection from Smith, as to the standards set forth in

Decker and Mumma.

      Actions which tend to corrupt the morals of a minor are those
      that offend the common sense of the community and the sense
      of decency, propriety and morality which most people entertain.

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      The Commonwealth need not prove that the minor’s morals were
      actually corrupted.

N.T. Trial, 4/6/2015, at 58-59.

      Additionally, the advisory comment note to the Suggested Standard

Jury Instructions (Criminal) for Corruption of a Minor, 15.6301(A), makes

specific reference to Decker is describing the requirements for determining

what actions tend to corrupt the morals of a minor. Therefore, given that

the jury charge was in compliance with the SSJI and that Smith made no

objection to the charge, we find no error by the trial court and conclude

Smith is not entitled to relief.

      We must agree with the conclusions drawn by the trial judge, who

stated in his Pa.R.A.P. 1925(a) opinion:

      Here, the testimony of the child, and believed by the [j]ury,
      established that [Smith] would have her remove her clothing and
      under garments and then he would stare at her private areas as
      he knelt at the foot of her bed. It is without question that such
      actions by [Smith], having a pre-pubescent child disrobe and
      then staring at her private areas, were those that “would offend
      the common sense of the community and the sense of decency,
      propriety and morality which most people entertain.”

Trial Court Opinion, 8/6/2015, at 4-5.

      Accordingly, we are compelled to conclude that there is sufficient

evidence to support Smith’s conviction of the charge of corrupting a minor.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2016




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