J-A12022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES THOMAS SMITH                         :
                                               :
                       Appellant               :   No. 917 WDA 2018

      Appeal from the Judgment of Sentence Entered December 19, 2017
    In the Court of Common Pleas of Armstrong County Criminal Division at
                       No(s): CP-03-CR-0000532-2016


BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                  FILED JULY 09, 2019

       Appellant, James Thomas Smith, appeals from the Judgment of

Sentence entered in the Armstrong County Court of Common Pleas after a

jury found him guilty of Rape, Involuntary Deviate Sexual Intercourse

(“IDSI”), Burglary, Aggravated Indecent Assault, Criminal Trespass, Criminal

Mischief, and Kidnapping.1 On appeal, Appellant challenges the sufficiency of

the evidence supporting his convictions. After careful review, we affirm.

       We glean the following factual and procedural history from the certified

record. Appellant and the victim had a three-year romantic relationship that

was fraught with Appellant’s manipulative and controlling behavior, including



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1  18 Pa.C.S. § 3121(a)(2); 18 Pa.C.S. § 3123(a)(2); 18 Pa.C.S. §
3502(a)(1)(ii); 18 Pa.C.S. § 3125(a)(3); 18 Pa.C.S. § 3503(a)(ii); 18 Pa. C.S.
§ 3304(a)(5); and 18 Pa.C.S. § 2901(a)(2), respectively.
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erratic temper tantrums and threats of violence toward the victim and her

children. The relationship ended in 2012, and in 2013, the victim obtained a

Protection from Abuse Order (“PFA”), which was effective from August 2013

through August 2016. The PFA prohibited Appellant from having any contact

with the victim, her children, and her parents; it also excluded Appellant from

the victim’s residence. Despite the PFA, Appellant continued to contact the

victim, and made multiple threats to the victim and her children.

       On June 24, 2016, Appellant saw the victim with another man at an ice

cream store, and confronted her, stating “I told you what would happen if I

ever saw you with anyone, and this is not done. I promise you tonight this

will be done. I promise you that it will be over.” N.T. Trial, 10/11/17, at 55.

Throughout that evening, Appellant sent the victim numerous text messages

and voicemails. Appellant also parked his car approximately one half mile

from the victim’s house, and sat in the woods watching her house all evening.

       At approximately 3:00 AM on June 25, 2016, Appellant broke into the

victim’s home using a pipe wrench. He then entered her bedroom, and locked

the bedroom door. The victim went to the bathroom at one point with her cell

phone and texted the neighbors for help.2 When she returned to the bedroom,

Appellant raped her.       After several hours, Appellant took the victim’s cell


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2 The neighbors and the victim had an agreement that if the victim needed
help because of Appellant, she would text them and they would come over.
Unfortunately, that night the neighbor she texted was out of town and did not
receive the text until the morning.

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phone, told her to lie if anyone asked why her door frame was broken, and

forced her to drive him to his car.

       The Commonwealth arrested Appellant and charged him with the above

crimes.3    The Criminal Information for the Rape, IDSI, and Aggravated

Indecent Assault (collectively referred to as the “Sexual Assault Charges”)

alleged that Appellant engaged in sexual acts with the victim as a result of

verbal threats he made before he attacked her and while he attacked her.

       A jury trial commenced on October 11, 2017, at which the victim and

Appellant testified. The jury found Appellant guilty of Rape, IDSI, Burglary,

Aggravated Indecent Assault, Criminal Trespass, Criminal Mischief, and

Kidnapping. The        court sentenced         Appellant to 216 to   432 months’

imprisonment.

       Appellant filed Post-Sentence Motions, which the trial court denied.

Appellant timely appealed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

       Appellant presents the following questions for our review:

       1. “In criminal trials the proof offered by the Commonwealth must
          measure up to the charge made in the” Information. Here,
          when outlining the factual basis supporting the sex offenses,
          the Information specifically alleged that [Appellant] threatened
          [the victim] by “telling her that he would not harm her as long
          as she complied” with his sexual requests. At trial, however,
          the Commonwealth failed to prove that allegation. Thus, the
          “proof” failed to “measure up to the charge made in the”
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3The Commonwealth also charged Appellant with Stalking. See 18 Pa.C.S. §
2709.1(a)(1). The jury acquitted him of that charge.


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         Information.     Was the evidence insufficient to support
         [Appellant’s] sex convictions?

      2. The predicate crime for the Burglary charge was this:
         [Appellant] entered [the victim]’s home with the intent to
         commit a sex offense. But, at trial, the Commonwealth failed
         to prove that [Appellant] committed a sex offense. Was the
         evidence also insufficient to support [Appellant’s] Burglary
         conviction?

Appellant’s Br. at 3 (quotation marks in original).

      In his first issue, Appellant contends that because the Commonwealth

failed to present evidence at trial to support one of the allegations in the

Criminal Information, the Commonwealth failed to present sufficient evidence

to support the conviction of the Sexual Assault Charges. In particular,

Appellant argues that the Criminal Information alleges that Appellant forcibly

compelled the victim to engage in the sexual activity because of the threats

he made while he was sexually assaulting her. Appellant concludes that since

the victim only testified to threats Appellant made before he sexually

assaulted her, the Commonwealth failed to establish the allegation of forcible

compulsion.     Appellant’s Br. at 13-18.       Appellant primarily relies on

Commonwealth v. Lambert, 313 A.2d 300 (Pa. Super. 1973).

      We review the allegations in the Criminal Information and the evidence

at trial with the following principles in mind. The purpose of a criminal

information is “to advise the accused of the allegations and the crimes

charged, to give sufficient notice to allow the opportunity to prepare a defense,

and to define the issues for trial.” Commonwealth v. Taylor, 33 A.3d 1283,


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1287 (Pa. Super. 2011) (citation omitted).       “In criminal trials, the proof

offered by the Commonwealth must measure up to the charge made in the

indictment.4” Lambert, 313 A.2d at 301.

       While the information is the “star and compass of a criminal charge,” it

should not be read in a hyper-technical manner.            Commonwealth v.

Nabried, 399 A.2d 1121, 1122 (Pa. Super. 1979) (en banc); Taylor, 33 A.3d

at 1287. “The court must consider the act in the context in which it is alleged

to have occurred.”        Nabried, supra at 1123 (citation omitted).      “Extra

information . . . describing the events surrounding the commission of the

crime[s is] mere surplusage.” Commonwealth v. Brandup, 366 A. 2d 1233,

1235 (Pa. Super. 1976). Thus, “evidence which var[ies] from the [surplusage

in the Information] constitute[s], at most, an innocuous variance, harmless in

effect.” Id.

       Applying these principles, this Court in Nabried upheld Appellant’s

conviction for Corruption of Minors. 399 A.2d at 1122-23.          The Criminal

Information alleged that it was the appellant who removed the victim’s

clothing and at trial the victim testified that she was the one who removed her

clothing. Id. This Court found the discrepancy harmless in effect because the

removal of the victim’s clothing “was accomplished through the instigation and

acts of appellant.” Id. at 1123. This Court agreed with the trial court’s finding


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4A criminal information is a formal criminal charge made by a prosecutor
without a grand-jury indictment. Black’s Law Dictionary (10th ed. 2014).

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that the Criminal Information was “sufficient to give the defendant notice of

the nature of the charges against him.” Id.

     In this case, the portion of the Criminal Information for the Sexual

Assault Charges at issue provides:

     . . . [Appellant] did engage in [the Sexual Assault] with [the Victim], by
     threat of forcible compulsion, namely told her that he would not
     harm her as long as she complied. He threatened her and her
     children in the past with physical harm, that would prevent
     resistance by a person of reasonable resolution, in violation of
     [Crimes Code dealing with Sexual Assaults.]

Criminal Information, Counts I, II and IV (emphasis added).

     Even a cursory review of the Criminal Information refutes Appellant’s

claim.    The Criminal Information clearly and unambiguously alleges that

Appellant used “forcible compulsion” as a result of threats Appellant made

before and while he sexually assaulted the victim. Appellant ignores the last

sentence of the counts for Sexual Assault that alleges that Appellant

“threatened [the victim] and her children in the past with physical harm, that

would prevent resistance by a person of reasonable resolution.” Thus,

Appellant’s argument that the Commonwealth failed to establish the forcible

compulsion because the victim did not testify that Appellant threatened her

while he sexually assaulted her has no foundational support.

     Appellant’s reliance on Lambert, supra, is also misplaced. In that case,

the Criminal Information alleged that the defendant committed the crime of

Corruption of Minors because he gave a minor “dangerous drugs.” 313 A.2d

at 300.    At trial, the Commonwealth did not prove that the “pills were

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dangerous drugs.” Id. This Court concluded that since the evidence at trial

did not support the allegation in the Criminal Information that the defendant

gave the minor “dangerous drugs,” the trial court erred in not granting the

motion in arrest of judgment. Id. at 301.

      In this case, the Criminal Information alleged both prior threats and

threats while Appellant sexually assaulted the victim to establish “forcible

compulsion.” Since the Commonwealth proved prior threats at trial, the

Commonwealth established the element of “forcible compulsion.”            In

Lambert, the Commonwealth only made one allegation regarding the

substance that the defendant gave to the minor to establish the charge of

Corruption of a Minor and when the Commonwealth failed to establish that

one allegation to support the charge, we held that the Commonwealth failed

to meet its burden. Id. In this case, the Commonwealth alleged threats at

two different time periods to establish “forcible compulsion.”     Since the

elements of the charge only require the Commonwealth to establish “forcible

compulsion” at one time, the fact that the Commonwealth failed to establish

the allegations at two periods of time does not mean that the Commonwealth

failed to establish any type of forcible compulsion.

      Accordingly, we agree with the trial court’s conclusion that Appellant

was aware of the Commonwealth’s allegations, and was not surprised or

prejudiced by the Commonwealth’s evidence that “measure[d] up to the

charge.” Id. Appellant’s claim warrants no relief.


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       In his second issue, Appellant asserts that the evidence is insufficient to

support his Burglary conviction because the Commonwealth failed to establish

the intent element of the crime.      Appellant’s Br. at 21-23.    Appellant also

avers, based on the argument set forth in his first issue, that “the evidence

supporting [his] sex convictions was insufficient as a matter of law [so] the

evidence did not support the Burglary charge’s predicate offense(s).” Id.

       “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur standard

of review is de novo and our scope of review is plenary.” Commonwealth v.

Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017) (citation omitted). “We

review claims regarding the sufficiency of the evidence by considering

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.”

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal

quotation marks and citation omitted). “Further, a conviction may be

sustained wholly on circumstantial evidence, and the trier of fact—while

passing on the credibility of the witnesses and the weight of the evidence—is

free to believe all, part, or none of the evidence.” Id. (citation omitted). “In

conducting this review, the appellate court may not weigh the evidence and

substitute its judgment for the fact-finder.” Id. (citation omitted).




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      Pursuant to the Crimes Code, “[a] person commits the offense of

[B]urglary if, with the intent to commit a crime therein, the person . . .

enters a building or occupied structure, or separately secured or occupied

portion thereof that is adapted for overnight accommodations in which at the

time of the offense any person is present.”        18 Pa.C.S. § 3502(a)(1)(ii)

(emphasis added).     Contrary to Appellant’s argument, the Commonwealth

does not have to prove a “predicate offense,” rather only the intent to commit

a crime within the premises.

      The trial court summarized the evidence offered by the Commonwealth

to prove that Appellant had the intent to commit a sexual crime at the time

he entered the victim’s home:

      There is sufficient evidence in the record indicating that
      [Appellant] threatened [the victim] earlier in the day on June 24,
      2016. He then appeared at her home early in the morning the
      next day with a pipe wrench he brought specifically to break the
      lock on the door if he could not otherwise get in. There is sufficient
      evidence to prove that [Appellant] went to [the victim’s] home,
      after having threatened her, to have sex with her no matter
      whether she consented. That evidence establishes the element of
      intent at the time [Appellant] entered [the victim’s] home.

Trial Ct. Op. at 6.

      Following our review of the record, we agree with the trial court that,

when viewed in the light most favorable to the Commonwealth as verdict-

winner, the evidence was sufficient for the jury to reasonably conclude that

Appellant had the specific intent to commit a sexual crime when he entered

the victim’s home. Appellant threatened the victim the evening of June 24,



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2016, stating inter alia, “I promise you tonight this will be done”; texted and

left messages for the victim multiple times later that evening; parked in a

secluded area away from the victim’s home; and brought a pipe wrench to the

victim’s home, which he use to break into the back door of the victim’s house.

Accordingly, the evidence was sufficient to establish that Appellant had the

specific intent to commit a sexual crime, and Appellant is not entitled to relief

on this claim.

      Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/2019




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