Com. v. Smith, L. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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