J-S04008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EVAN SMITH,

                            Appellant                No. 422 MDA 2014


           Appeal from the Judgment of Sentence February 25, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0000418-2012


BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED JANUARY 28, 2015

       Evan Smith appeals from the judgment of sentence of thirty to sixty

years incarceration imposed by the trial court after a jury found him guilty of

numerous sex offenses relative to the sexual abuse of his two step-

daughters. After careful review, we affirm.

       The facts of this matter first came to light on August 23, 2011, when

the mother of the victims informed police that Appellant, her estranged

husband, and the step-father to the victims, had been sexually abusing her

daughters, N.B. and K.B.          The abuse began in approximately 2007 and




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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continued until 2010.       The two girls were twelve and eleven years of age

when the assaults started.1

       Appellant used a ruse to strike fear into the victims and cause them to

engage in sexual activity with him. Prior to the beginning of the school year

in 2006, Appellant, the victims, and their mother moved into a home

together. Within a year of moving in, Appellant claimed that the house was

haunted by ghosts.       He would write messages on the bathroom mirrors in

steam, stating, “Die Virgins,” assert that scratches on his body came from

the ghosts, and put a red substance on the walls. Appellant informed both

victims, though neither were aware of the abuse of the other, that a medium

named Melinda told him that the girls needed to perform sex acts with him

to stop the ghosts.

       N.B. maintained that she was twelve when the first incident occurred.

She stated that Appellant informed her that the sexual activity would have

to take place on a specific date. On that day, she arrived home from school

and Appellant instructed her to take her clothes off.        When Appellant

attempted to kiss N.B., she threw up in her hands.          She pleaded with

Appellant not to have to perform oral sex. Appellant acquiesced but told her

that she would have to engage in sexual activity on another occasion.


____________________________________________


1
 At the time of trial, N.B. was nineteen years of age and K.B. was seventeen
years old.



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      Approximately one week later, Appellant made N.B. perform fellatio on

him. According to N.B., Appellant indicated that Melinda had told him that

the oral sex had worked.     Nonetheless, within several months, Appellant

again used the ghost fabrication to induce sex from the victim.     Appellant

informed N.B. that oral sex would not suffice and the two engaged in sexual

intercourse. N.B. related that vaginal intercourse occurred but that it was so

painful that Appellant began to have anal sex with her. She submitted that

ordinarily she would be wearing a bra when the abuse occurred, but

Appellant also made her wear leather skirts and boots.

      Eventually, N.B. began to rebuff Appellant’s advances as she grew

older. Not dissuaded, Appellant told the victim that the ghosts would harm

his son, E.M.S., who had recently moved in with the family.       E.M.S. was

eleven years old at the time.       Accordingly, the abuse continued until

Appellant and the victims’ mother separated. N.B. admitted that she did not

tell anyone of the abuse until August 23, 2011, and that the last sex act

between her and Appellant transpired in 2010.

      N.B.’s younger sister, K.B., testified similarly.     K.B. stated that

Appellant told her that Melinda instructed him that the two would have to

engage in sex acts to prevent ghosts from harming the family. She added

that at the time she did not know how to perform oral sex and Appellant

taught her using a popsicle.     Following Appellant’s instruction, Appellant

made K.B. perform oral sex on him. Appellant also maintained that he and


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K.B. had to have oral sex once a week to prevent the ghosts from growing

stronger.

     Subsequently, Appellant progressed to other forms of sexual abuse.

K.B. provided that they attempted vaginal intercourse but it was too painful;

therefore, he began to have anal sex with the victim. Like her sister, she

stated that Appellant would sometimes make her dress up in boots and

pants with a hole in the crotch. K.B. indicated that the last time the abuse

occurred was in 2010.

     K.B. told her best friend of the abuse shortly before revealing it to her

mother.      K.B.’s best friend, Melanie, confirmed that K.B. told her about

Appellant’s actions. Melanie added that Appellant would make inappropriate

remarks to the girls and often spoke of ghosts. Within a week of informing

Melanie of the abuse, both K.B. and Melanie were in the car with the victim’s

mother.     It was at this juncture that K.B. first revealed the abuse to her

mother.      The victim’s mother immediately had K.B. contact N.B. to ask

whether Appellant had abused her.       After N.B. admitted the abuse, the

victims’ mother telephoned police on the aforementioned date.

     The victims’ mother also related that she discovered leather boots she

did not own, pornography, penis pumps, boxes of condoms, and a used

condom. The condom was located in a drop ceiling, but Appellant threw it in

the trash.     Police discovered the leather boots, the used condom, and

spandex pants with the crotch removed in the home. On the outside of the


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condom was DNA from both Appellant and K.B.         Police also found pictures of

the victims in leather apparel. Appellant’s own son, E.M.S., also confirmed

that his father frequently discussed ghosts, Melinda, and would touch the

victims’ buttocks and say sexual things to them. E.M.S. maintained that his

dad asked the victims to do stripper struts and have sex with Appellant. No

specific testimony was presented as to Appellant’s age.

      The jury found Appellant guilty of two counts each of rape, rape of a

child, involuntary deviate sexual intercourse (“IDSI”), IDSI with a child, and

corruption of a minor. It also determined that he was guilty of four counts

of aggravated indecent assault and six counts of indecent assault. The court

imposed an aggregate sentence of thirty to sixty years incarceration. This

timely appeal ensued. However, trial counsel withdrew on that same date

and new counsel was appointed. The court directed counsel to file a concise

statement of errors complained of on appeal.            After the granting of an

extension, Appellant complied.     The trial court then authored its opinion.

The matter is now ready for our review. Appellant’s sole issue on appeal is

“Whether the evidence presented by the Commonwealth at trial was

insufficient as a matter of law to support the jury’s verdict, specifically with

respect to the age-based offenses of Aggravated Indecent Assault (two

counts),   Indecent   Assault   (two   counts),   and    Corruption   of   Minors.”

Appellant’s brief at 4.




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      In conducting a sufficiency of the evidence review, we view all of the

evidence admitted, even improperly admitted evidence. Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such

evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth.       Id.   When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged,

the sufficiency claim will fail. Id.

      The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   In addition, the Commonwealth can prove its case by circumstantial

evidence.    Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief.      This Court is not

permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.

      Appellant’s only argument is that, since the Commonwealth did not

introduce his date of birth or any evidence as to his specific age, the

evidence was insufficient to prove the crimes with an age component.

Appellant maintains that the Commonwealth had to prove that he was more

than four years older than the victims for one aggravated indecent assault




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count and two indecent assault charges and over eighteen years of age for

the corruption of minors counts.

      The Commonwealth replies that the age of the defendant may be

proven by circumstantial evidence.          It notes that the jury observed

Appellant, knew that he had been married to the victims’ mother, heard

testimony that the victims’ mother met him while he was working for an eye

doctor in Walmart, and that his own son was eleven years old at the time of

the crimes.

      Here, we find that, because the jury had an opportunity to view

Appellant, see Commonwealth v. Miller,             657   A.2d 946, 947-948

(Pa.Super. 1995), and because his own son was eleven years old at the time

of the 2010 incidents, these facts preclude the possibility that Appellant was

under the age of eighteen.     In order for Appellant to have been less than

eighteen, he would have been less than seven years old when his son was

born. Sufficient circumstantial evidence demonstrated that Appellant was an

adult at the time of the commission of the crimes. Thus, the corruption of

minors charges stand.     Similarly, the evidence proved that Appellant was

more than four years older than the victims. The last sex acts occurred in

2010, when the victims were approximately fourteen and sixteen. We have

already concluded that Appellant was older than eighteen.      To have been

under twenty years of age in 2010 would mean that Appellant fathered his

child at nine. Appellant’s claim is meritless.


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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2015




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