J-S67009-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
ERIC WAYNE SMITH,                          :
                                           :
                   Appellant               : No. 42 WDA 2014

          Appeal from the Judgment of Sentence December 6, 2013,
                Court of Common Pleas, Washington County,
              Criminal Division at No. CP-63-CR-0000054-2013

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED NOVEMBER 17, 2014

       Eric Wayne Smith (“Smith”) appeals from the judgment of sentence

entered on December 6, 2013 in the Court of Common Pleas of Washington

County, Criminal Division, following his convictions for indecent assault,1

false imprisonment,2 corruption of minors,3 and terroristic threats.4 For the

following reasons, we affirm.

       The trial court accurately summarized the facts of this case as follows:

             In the late summer/early fall of 2012, [R.M.] (age
             15), [K.C.] (age 12), and [S.D.] (no age of record)
             were ‘ding dong ditching’ in Lawrence, Washington
             County. When [R.M.] approached 20 Third Street to


1
    18 Pa.C.S.A. § 3126(a)(8).
2
    18 Pa.C.S.A. § 2903(a).
3
    18 Pa.C.S.A. § 6301(a)(1)(i).
4
    18 Pa.C.S.A. § 2706(a)(1).

*Former Justice specially assigned to the Superior Court.
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          ring the doorbell, [Smith] approached the three
          juveniles from the side of the house and asked them
          what they were doing. After [R.M.] explained the
          prank, [Smith] offered to share some of his
          marijuana with the juveniles. [R.M.] called his
          girlfriend, [J.C.] (age 15), to bring a pipe for
          smoking the marijuana.

          When [J.C.] arrived, the four juveniles proceeded to
          a nearby park with [Smith] to smoke the marijuana.
          While smoking together, [Smith] told [R.M.] that he
          was gay, and wondered if [R.M.] knew anyone
          around [R.M.]’s age that was also gay. When the
          juveniles asked [Smith] about his age, [Smith]
          initially stated that he was 27, then changed it twice
          more during the conversation. Prior to leaving the
          park, [Smith] provided his cell phone number to
          [J.C.] and [R.M.].

          Over the next month, [J.C.] texted [Smith]
          frequently to obtain marijuana. On occasion, [J.C.]
          would bring her brother [K.C.] with her to pick up
          the marijuana at [Smith]’s residence or smoke it
          there with [him]. [Smith] lived a short walking
          distance from [J.C. and K.C.’s residence]. [K.C.]
          began to stop by [Smith]’s house alone to smoke
          marijuana. [Smith] never charged the juveniles for
          the marijuana. On those occasions where [Smith]
          would smoke with [J.C. and K.C.], it would always be
          outside his house.

          One evening in the fall of 2012[,] [K.C.] stopped at
          [Smith]’s residence to smoke marijuana. [Smith]
          invited him inside, and [K.C.] and [Smith] smoked
          marijuana in [Smith]’s living room. [K.C.] asked
          [Smith] how he knew he was gay. [Smith] asked
          [K.C.] if he was gay, to which [he] responded he was
          bisexual. [Smith] asked [K.C.] if he wanted to
          engage in sexual activity, and [K.C.] said no. Despite
          this refusal, [Smith] fondled [K.C.]’s genitalia over
          his clothes. [K.C.] immediately stood up to leave,
          but [Smith] grabbed his pant leg, causing [K.C.] to
          fall to the ground. [Smith] threatened [K.C.], and



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            told him that if he told anyone what happened he
            would kill him.

            In December 2012, while admitted at Southwood
            Psychiatric Hospital, [K.C.] disclosed the incident to
            his therapists. Following a forensic interview and
            notification of law enforcement, [Smith] was charged
            [with several offenses].

Trial Court Opinion, 5/9/14, at 4-6 (footnotes and record citations omitted).

      On August 23, 2013, the trial court held a nonjury trial after which it

found Smith guilty of the above-reference crimes. On December 6, 2013,

the trial court sentenced Smith to a total of six to twelve years of

incarceration. Smith did not file any post-sentence motions in this case. On

January 3, 2014, Smith filed a timely notice of appeal.      On January 23,

2014, the trial court ordered Smith to file a concise statement of the errors

complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules

of Appellate Procedure.   On February 6, 2014, Smith filed a timely Rule

1925(b) statement.

      On appeal, Smith raises the following issues for our review:

            DID THE COMMONWEALTH PRESENT SUFFICIENT
            EVIDENCE, AS A MATTER OF LAW, OF EACH OF THE
            COUNTS:

                  A.    FALSE IMPRISONMENT;

                  B.    CORRUPTION        OF    MINORS      (TWO
                        COUNTS);

                  C.    TERRORISTIC THREATS; AND




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                  D.    INDECENT    ASSAULT,     PERSON    LESS
                        THAN 16.

      In reviewing a challenge to the sufficiency of the evidence, our

standard of review is as follows:

            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record ‘in the light most favorable to the verdict
            winner giving the prosecution the benefit of all
            reasonable inferences to be drawn from the
            evidence.’ Commonwealth v. Widmer, 560 Pa.
            308, 744 A.2d 745, 751 (2000). ‘Evidence will be
            deemed sufficient to support the verdict when it
            establishes each material element of the crime
            charged and the commission thereof by the accused,
            beyond a reasonable doubt.’ Commonwealth v.
            Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).
            Nevertheless, ‘the Commonwealth need not establish
            guilt to a mathematical certainty.’ Id.; see also
            Commonwealth v. Aguado, 760 A.2d 1181, 1185
            (Pa. Super. 2000) (‘[T]he facts and circumstances
            established by the Commonwealth need not be
            absolutely incompatible with the defendant’s
            innocence’). Any doubt about the defendant’s guilt is
            to be resolved by the fact finder unless the evidence
            is so weak and inconclusive that, as a matter of law,
            no probability of fact can be drawn from the
            combined circumstances. See Commonwealth v.
            DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).

            The Commonwealth may sustain its burden by
            means of wholly circumstantial evidence. See
            Brewer, 876 A.2d at 1032. Accordingly, ‘[t]he fact
            that the evidence establishing a defendant’s
            participation in a crime is circumstantial does not
            preclude a conviction where the evidence coupled
            with the reasonable inferences drawn therefrom
            overcomes the presumption of innocence.’ Id.
            (quoting Commonwealth v. Murphy, 795 A.2d
            1025, 1038–39 (Pa. Super. 2002)). Significantly, we
            may not substitute our judgment for that of the fact



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           finder; thus, so long as the evidence adduced,
           accepted in the light most favorable to the
           Commonwealth,      demonstrates     the    respective
           elements of a defendant’s crimes beyond a
           reasonable doubt, the appellant’s convictions will be
           upheld. See Brewer, 876 A.2d at 1032.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa.

Super. 2013)).

     The argument section of Smith’s appellate brief consists of four

sections. See Smith’s Brief at 8-10. Each section addresses the four crimes

(false imprisonment, corruption of minors, terroristic threats, and indecent

assault) for which Smith challenges the sufficiency of the evidence. See id.

In each section, Smith quotes the statutory provision that defines each of

the four crimes. See id. Following each statutory provision, Smith provides

approximately four to seven lines of argument in which he claims that the

witness testimony supporting his convictions for each crime is incredible,

unreliable, and contradictory. See id.

     This Court has consistently held that “credibility determinations are

made by the fact finder and that challenges thereto go to the weight, and

not the sufficiency, of the evidence.”    Commonwealth v. Gaskins, 692

A.2d 224, 227 (Pa. Super. 1997); see also Commonwealth v. Gibbs, 981

A.2d 274, 281-82 (Pa. Super. 2009) (“An argument that the finder of fact

should have credited one witness’ testimony over that of another witness




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goes to the weight of the evidence, not the sufficiency of the evidence.”).

Our Supreme Court has held that an “appellant’s challenge to the sufficiency

of the evidence must fail[,]” where an appellant phrases an issue as a

challenge to the sufficiency of the evidence, but the argument that appellant

provides goes to the weight of the evidence.       Commonwealth v. Small,

741 A.2d 666, 672 (Pa. 1999); see also Gibbs, 981 A.2d at 281-82 (finding

that a sufficiency claim raising weight of the evidence arguments would be

dismissed).

      Smith clearly confuses a challenge to the sufficiency of the evidence

with a challenge to the weight of the evidence. In his appellate brief, Smith

cites the standard of review for sufficiency of the evidence claims, challenges

the sufficiency of the evidence in the statement of questions involved, and

refers to the evidence in this case as “insufficient as a matter of law” in his

summary of the argument.       See Smith’s Brief at 2, 4, 7.      However, the

arguments that Smith makes throughout the rest of his brief pertaining to

witness credibility and reliability challenge the weight of the evidence, not its

sufficiency.   Because Smith has raised sufficiency claims in which he

presents weight of the evidence arguments, his sufficiency claims must fail.5

See Small, 741 A.2d at 672.




5
   We note that our rationale in reaching this conclusion differs from that of
the trial court. However, “[w]e can affirm the [trial] court’s decision if there
is any basis to support it, even if we rely on different grounds to affirm.”


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     Judgment of sentence affirmed.

     Mundy, J. joins the Memorandum.

     Fitzgerald, J. concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2014




Commonwealth v. McLaurin, 45 A.3d 1131, 1138 (Pa. Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013).


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