J-S49041-18

                                   2018 PA Super 251

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL LEE SMYSER                          :
                                               :
                       Appellant               :   No. 1990 MDA 2017

            Appeal from the Judgment of Sentence October 24, 2017
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-CR-0000532-2016


BEFORE:       SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                        FILED SEPTEMBER 11, 2018

        Appellant Daniel Lee Smyser appeals from the Judgment of Sentence

entered in the Court of Common Pleas of Cumberland County on October 24,

2017, following his convictions of twelve counts of Sexual Abuse of Children.1

We affirm.

        The trial court set forth the relevant facts and procedural history herein

as follows:

              On August 27, 2015, Trooper Lucas Collins responded to the
        [Appellant’s] home as a result of a 911 call originating from the
        [Appellant’s] address. Dispatchers had related hearing choking
        noises on the call. On the scene, Trooper Collins and EMS
        personnel were unable to get a response from inside the
        residence. After confirming with neighbors that [Appellant] was in
        the residence and that his vehicles were present, Trooper Collins
        determined there was a valid medical emergency and entered the
        residence. Therein, he discovered [Appellant] on the floor, alone,
        unresponsive in front of his computer. EMS provided medical
        attention and transported [Appellant] to a hospital.
____________________________________________


1   18 Pa.C.S.A. § 6312(d).
____________________________________
* Former Justice specially assigned to the Superior Court.
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             As he was securing the residence, Trooper Collins observed
      what appeared to be readily visible child pornography streaming
      on [Appellant’s] computer. There were pictures and an active chat
      room containing ongoing discussion of child pornography. Based
      on his observation, Trooper Collins secured the scene and
      contacted the investigative unit at the Carlisle State Police
      Barracks.
             Thereafter, Trooper John Boardman arrived to investigate
      the possible child pornography. He observed the open chat room
      and noted the sexually explicit discussion of children. He also
      noted that pictures of apparent child pornography were being
      posted. Based on his observations he sought and obtained a
      search warrant for [Appellant’s] home and computer.
             Subsequently, Trooper Michael J. Gownley, a certified
      forensic computer examiner, conducted a search of [Appellant’s]
      computer. Testifying as an expert, Trooper Gownley related that
      he discovered a Windows user profile titled "Dan" that included
      two Yahoo Messenger accounts, titled "SMYS and "lilbitofur."
      Further, there was a user-created folder under the "Dan" user
      profile titled "Mine." In that file and in the Yahoo Messenger Photo-
      Sharing Directory there were dozens of images of child
      pornography, 12 of which were known child victims verified by the
      database maintained by the National Center for Missing and
      Exploited Children. Trooper Gownley testified that it was his
      expert opinion that these images of child pornography were
      intentionally possessed by [Appellant].
             After he regained consciousness, [Appellant] was
      confronted at the hospital about his computer activity and he
      denied all knowledge of the alleged crimes. At the nonjury trial,
      [Appellant] testified on his own behalf. He again denied accessing
      child pornography on his computer and opined that unidentified
      enemies from his past had broken into his home and planted the
      child pornography on his computer in an attempt to frame him for
      a crime. He also presented brief testimony from his daughter and
      sister who both noted the [Appellant’s] lack of facility with
      computers and technology and their doubt that he would be
      capable of accessing difficult to find online contraband.
             Ultimately, the court, sitting as factfinder, found the
      Commonwealth's witnesses credible and [Appellant] not-credible
      and found him guilty of all charges.



Trial Court Opinion, filed 4/19/18, at 1-3.


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      On October 24, 2017, Appellant was sentenced to a prison term of one

(1) year less a day to two (2) years less a day in the Cumberland County

Prison along with a thirty-six (36) month term of probation to be served

consecutively thereto. Appellant further was ordered to comply with the Tier

I registration requirements of SORNA.

      On November 27, 2017, the trial court entered an Order granting

defense counsel’s Motion to Withdraw Appearance and appointing new counsel

to represent Appellant.   In an “abundance of caution” the trial court further

provided the Public Defender with thirty (30) days from the date of that Order

in which to file an appeal with this Court. Appellant filed his Notice of Appeal

on December 27, 2017. The next day, the trial court ordered Appellant to file

a concise statement of errors complained of on appeal within twenty-one (21)

days pursuant to Pa.R.A.P. 1925(b)(1). On January 18, 2018, the trial court

granted Appellant’s motion for enlargement of time and directed him to file a

concise statement no later than seven (7) days following the receipt of the

requested transcripts. Appellant filed his Concise Statement of the Errors

Complained of on Appeal on February 2, 2018, wherein he raised the following,

single issue:


      1.      [Appellant] believes, and therefore avers, that the
           Commonwealth failed to present sufficient evidence for the
           fact-finder to be convinced beyond a reasonable doubt of
           [Appellant’s] guilt.




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       In his brief, Appellant presents the following Statement of the

Questions Involved:

      I.    Did the trial court err in determining that the
            Commonwealth presented sufficient evidence to sustain the
            conviction for twelve (12) counts of sexual abuse of
            children?

Brief for Appellant at 6 (unnecessary capitalization omitted).

      The relevant subsection of Sexual Abuse of Children under which

Appellant’s twelve charges and subsequent convictions arose is entitled “Child

pornography” and reads as follows:

      d) Child pornography.--Any person who intentionally views or
      knowingly possesses or controls any book, magazine, pamphlet,
      slide, photograph, film, videotape, computer depiction or other
      material depicting a child under the age of 18 years engaging in a
      prohibited sexual act or in the simulation of such act commits an
      offense.

18 Pa.C.S.A. § 6312(d).

      Whether the evidence was sufficient to support the conviction presents

a matter of law; our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.Super. 2016)

(citation omitted), appeal denied, 167 A.3d 698 (Pa. 2017). In conducting

our inquiry, we

      examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.




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Commonwealth v. Doughty, 633 Pa. 539, 550-51, 126 A.3d 951, 958

(2015).

      “In addition to proving the statutory elements of the crimes charged

beyond a reasonable doubt, the Commonwealth must also establish the

identity of the defendant as the perpetrator of the crimes.” Commonwealth

v. Brooks, 7 A.3d 852, 857 (Pa.Super. 2010), appeal denied, 21 A.3d 1189

(Pa. 2011). “Evidence of identification need not be positive and certain to

sustain a conviction.” Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super.

2011) (en banc) (citation omitted), appeal denied, 54 A.3d 348 (Pa. 2012).

As our Supreme Court has stated “any indefiniteness and uncertainty in the

identification testimony goes to its weight. Direct evidence of identity is, of

course, not necessary and a defendant may be convicted solely on

circumstantial evidence.” Commonwealth v. Hickman, 453 Pa. 427, 430,

309 A.2d 564, 566 (1973) (citations omitted).

      As a preliminary matter, it should be noted that “when challenging the

sufficiency of the evidence on appeal, the ‘[a]ppellant's [court ordered Pa.

R.A.P.1925(b) concise] statement must specify the element or elements upon

which the evidence was insufficient’ in order to preserve the issue for appeal.”

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009) appeal

denied, 3 A.3d 670 (Pa. 2010). If the appellant fails to conform to the

specificity requirement, the claim is waived. Id. See also Commonwealth




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

Flores, 921 A.2d 517, 522–23 (Pa.Super. 2007)).

      While the trial court did address the topic of sufficiency in its Rule

1925(a) Opinion, we have held that this is “of no moment to our analysis

because we apply Pa.R.A.P.1925(b) in a predictable, uniform fashion, not in a

selective manner dependent on an appellee's argument or a trial court's choice

to address an unpreserved claim.” Williams, 959 A.2d. at 1257 (quoting

Flores 921 A.2d at 522–23).       In light of Appellant’s boilerplate concise

statement, we could find this issue waived; however, since Appellant was

convicted of twelve counts of 18 Pa.C.S.A. § 6312(d) and his sufficiency

challenge presents a question of law that the trial court readily apprehended,

we shall address it. See Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d

1058 (2007) (applying less strict waiver approach where case was not

complex and trial court addressed claim in substantial detail).

      Appellant avers the evidence was insufficient to sustain his convictions

because it failed to establish that he intentionally and knowingly possessed or

controlled child pornography. Brief for Appellant at 13. Appellant stresses

that the evidence “only included the images that were saved to the computer

seized from [Appellant’s] residence and an allegation that a scrolling chatroom

was active at the time Trooper Collins responded to the evidence.” Id. at 15.

Appellant points to the testimony of Appellant’s daughter Chynna, that she,

her fiancé and her sister used the computer on several occasions while


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Appellant was logged on and her representation that her father lacks the

knowledge and skills necessary to upload or download files on a computer and

to utilize a file-sharing program. Id.

      Appellant further states the Commonwealth failed to establish the dates

and times Appellant viewed the images. Appellant reasons that the images

introduced at trial in support of the guilty verdicts were last viewed prior to

August 27, 2015, and, in light of his testimony that he worked Monday through

Friday between 4:30 a.m. and 6:00 p.m., such evidence was insufficient to

prove that he intentionally and knowingly possessed or controlled the child

pornography. Id. at 16.

      Essentially, Appellant's contention is that the trial court sitting as the

finder of fact should have credited the testimony of his daughter and him

rather than that of the investigating officers. An argument that the finder of

fact should have credited one witness’s testimony over that of another goes

to the weight of the evidence, not the sufficiency of the evidence.

Commonwealth        v.   Gibbs,   981    A.2d   274,   281–82     (2009)(citing

Commonwealth v. W.H.M., 932 A.2d 155, 160 (Pa.Super. 2007) (claim that

the jury should have believed Appellant's version of the event rather than the

victim’s goes to the weight, not the sufficiency of the evidence));

Commonwealth v. Wilson, 825 A.2d 710, 713–14 (Pa.Super. 2003) (a

review of the sufficiency of the evidence does not include an assessment of

the credibility of testimony); Commonwealth v. Gaskins, 692 A.2d 224, 227


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(Pa.Super. 1997) (credibility determinations are made by the finder of fact

and challenges to those determinations go to the weight, not the sufficiency

of the evidence). Thus, Appellant's asserted sufficiency of the evidence claim

is, in fact, a weight of the evidence claim; yet, Appellant has not challenged

the weight of the evidence on appeal. As a result, he has waived any challenge

to the weight of the evidence for failure to include it in his Pa.R.A.P. 1925(b)

statement. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)

(“Any issues not raised in a 1925(b) statement will be deemed waived.”); see

also Pa.R.A.P. 1925(b)(4)(vii).    To the extent that Appellant properly has

raised a sufficiency claim, we find it meritless.

      The record reveals Appellant resided alone and was the only one present

when Trooper Collins arrived at his locked home on August 27, 2015, and

found him lying on the floor in front of his computer in his bedroom dressed

only in his undergarments. N.T. Trial, 6/30/17, at 6-7, 11. The computer was

connected to several, active open chat rooms and displayed scrolling images

of child pornography. Id. at 8, 20-21. Following the seizure and forensic

analysis of Appellant’s computer, police discovered additional images of child

pornography which included twelve images of known child victims. Id. at 52-

53.

      In its Rule 1925(a) Opinion, the trial court explained the twelve pictures

of the victims were “sexually explicit depictions of children.”     Trial Court

Opinion, filed 4/19/18, at 3.        The court found Appellant’s claims of


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technological incompetence were belied by expert testimony and the forensic

evidence at trial. While the trial court stated it did not doubt the truthfulness

of Appellant’s daughter and sister, it explained it discounted their testimony

“on the basis of their simple inability to know of [Appellant’s] secret behavior.”

Id. at 4. The [c]ourt concluded that:

      [Appellant’s] theory of a mysterious enemy setting him up is
      ludicrous. The discovery of [Appellant’s] possession of child
      pornography was triggered by his suffering a sudden asthmatic
      episode. It would take a remarkably patient vengeance-seeker to
      plant dozens of images of child pornography on his enemy’s
      computer and then simply wait for a random medical emergency
      for police to discover the contraband.

Id.

      Our review of the record supports the trial court’s conclusions. It was

within the province of the trial court, as factfinder, to determine that the

evidence presented was sufficient to establish Appellant intentionally viewed

and/or   possessed    the   pornographic    images   found   on   his   computer.

Appellant's challenge, therefore, fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/11/2018




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