Com. v. Smith, J.

• Court: Superior Court of Pennsylvania
• Decided: March 19, 2021
• Docket: 988 EDA 2019
• Status: Unpublished

Opinion

J-S48008-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES SMITH : : Appellant : No. 988 EDA 2019

Appeal from the Judgment of Sentence Entered November 21, 2018, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0007916-2015, CP-51-CR-0007917-2015.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES SMITH : : Appellant : No. 989 EDA 2019

Appeal from the Judgment of Sentence Entered November 21, 2018, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0007916-2015, CP-51-CR-0007917-2015.

BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 19, 2021

In this consolidated appeal, James Smith appeals from the judgments

of sentence imposed following his convictions for rape, involuntary deviate J-S48008-20

sexual intercourse (“IDSI”), and multiple other sex offenses against two minor

victims.1 We affirm.

The trial court summarized the relevant factual history as follows:

Sometime in April 2015, A.P. & E.B, [ages] seventeen and twelve years old at the time, respectively, reported to the Philadelphia Police that their mother’s godfather[,] James “Pop- Pop, Sporty” Smith had been sexually abusing one or both of them since 2011.

[Smith], a 46-year-old man with a date of birth of September 30, 1968, began molesting E.B, a 10[-]year[-]old, in the fall of 2014. In October or November 2014, [Smith] picked up E.B. and a few of her siblings from their grandmother’s house, and took them grocery shopping. E.B. and her siblings were living with their grandmother because their mother was in jail. On the way to his home from the grocery store, [Smith] asked E.B if she wanted to play a guessing game involving a turkey baster. The game involved putting different flavors into the baster and E.B. would have to guess what they were. E.B. declined to play the game. When they arrived at [Smith’s] home, he told E.B. to join him in the basement, and she obliged. At this point, E.B was told to sit on a chair where she was blindfolded. Next, [Smith] placed something in E.B.’s mouth. E.B, described this thing as tasting sweet then having a strong flavor. She felt something hard, and skin and hair around her mouth and the thing in her mouth moved back and forth. After she tasted the strong flavor, this stopped, and the blindfold was removed. [Smith’s] denim pants were unzipped. This was the first time [Smith] assaulted E.B. but not the last time.

Later in the year, but prior to E.B.’s 11th birthday, she and her brother caught a bus from Reading, PA to visit [Smith] under the guise that he would buy her an iPad for her birthday. [Smith] picked them up and took the children to get hoagies on the way to his house. When they arrived, [Smith] instructed E.B. to take a shower and join him in his bedroom. Wearing nothing but a towel, E.B. went to [Smith’s] bedroom where she was instructed to lie on ____________________________________________

1 See 18 Pa.C.S.A. §§ 3121(a)(1); 3123(a)(1), (b); 3124.1; 3126(a)(2), (7); 4304(a)(1); 6301(a)(1)(ii), (ii); 6318(a)(1).

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the bed so that he may check her for bedbug bites. [Smith] held E.B.’s ankles and lifted her legs into the air leaving the towel to cover only the top half of her body. Although [Smith] did not touch E.B.’s genitalia at this point, he commented on her pretty private.

Sometime shortly thereafter, at an unknown time, following a snowfall and after E.B.’s 11th birthday, E.B., her mom, and younger siblings were all gathered at [Smith’s] home. Under the guise of going to the store across the street, [Smith] took E.B. out the front door of his house and into the basement through the garage. Once again, E.B. was told to sit down, this time on the toilet, and again blindfolded. [Smith] proceeded to repeat his actions from the fall of 2014, and this time instructing E.B. to “rub the oranges.” E.B. did not know what the oranges were, but described them as hard circles and she felt skin and hair around them. Once more, she felt something with the hair and skin in her mouth followed by a strong flavor. After the strong flavor, [Smith] stopped and removed E.B.’s blindfold. Prior to rejoining the family, [Smith] told E.B. not to tell her mom because it was “our game.” It wasn’t until April 2015, while at her Uncle Lance’s house, did E.B. tell her mother what had happened.

When A.P. was 13 or 14 years old, [around 2012] her mother introduced her to [Smith] as a person who could get A.P. into modeling. [Smith] owned a hair salon and A.P. went to see him there to see if he could be of assistance to her. When she arrived at the salon, she was told come to the back where [Smith] measure[d] her breasts and then had her lower her jeans to measure her waist.

About a year or two later, A.P.’s mother picked her up from her cousin’s house and together they went to [Smith’s]. After eating dinner, A.P. was informed that she would be sleeping in the back room by herself, and her mother and younger sister would be sleeping in the front room. Later that evening, [Smith] woke up A.P. and instructed her to join him downstairs. [Smith] then informed A.P. that her mother had filled him in on her living situation, and the problems that A.P, was facing at her foster mother’s house. It was at this point that [Smith] informed A.P. that he would take care of her if she took care of him. He proceeded to penetrate A.P. vaginally and then asked her to give him oral sex. A.P. did not refuse his advances because she was feeling very vulnerable and “was trying to survive.” The sex was a regular thing.

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When A.P.’s mom was incarcerated, she lived with [Smith], as she had no other choice. A.P. testified that “I was uncomfortable, but I didn’t have any other options, so I made it work.” During the following months, [Smith] had regular sexual intercourse with A.P., mostly in her room and mostly at night. [Smith] never used a condom and ejaculated in A.P. Often [Smith] would try to penetrate A.P. anally, which A.P. would decline. A.P. was reliant on [Smith] as he provided her with day-to-day living things, spending money, food, and car fare. Eventually A.P. got fed up and started saying no to [Smith]. In response, [Smith] stopped bringing her things and providing her with car fare, uniforms, and things for school. A.P. eventually moved out and told her friend Lisa about the abuse. Then one day in April 2015, whilst at her Uncle Lance’s home, because of the situation with E.B. [A.P.] told her mother about the abuse.

Trial Court Opinion, 1/15/20, at 3-6 (citations to the record omitted).

Smith was arrested and charged at CP-51-CR-0007916-2015 for his

sexual abuse of E.B., and at CP-51-CR-0007917-2015 for his sexual abuse of

A.P. The cases were consolidated for trial. At the conclusion of trial, a jury

convicted Smith of IDSI (with a child), unlawful contact with a minor (sexual

offense), endangering the welfare of a child (by parent/guardian), corruption

of minors (defendant over eighteen), and indecent assault (victim under

thirteen) at CP-51-CR-0007916-2015 (E.B.). The same jury convicted Smith

of rape (forcible compulsion), IDSI (forcible compulsion), unlawful contact

with a minor, sexual assault, endangering the welfare of a child, corruption of

minors (defendant over eighteen), and indecent assault (forcible compulsion)

at CP-51-CR-0007917-2015 (A.P.).

On November 21, 2018, the trial court sentenced Smith to an aggregate

prison term of thirty-nine to seventy-eight years for his offenses against E.B.

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and A.P. Smith filed a post-sentence motion, which was denied by operation

of law. Smith filed a timely notice of appeal at each docket, but listed both

trial court docket numbers on each notice of appeal. Both Smith and the trial

court complied with Pa.R.A.P. 1925.

Initially, this Court issued a rule to show cause at each case as to why

the appeal should not be quashed in light of the Pennsylvania Supreme Court’s

holding on June 1, 2018, in Commonwealth v. Walker, 185 A.3d 969, 971

(Pa. 2018) (requiring a separate notice of appeal to be filed at each docket

where a single order resolves issues arising on more than one docket); see

also Pa.R.A.P. 341, Comment. Smith filed responses to the rules to show

cause and later filed a motion to consolidate the appeals. On September 5,

2019, this Court issued a per curiam order which discharged the rule to show

cause, and deferred the Walker issue to the merits panel to quash either or

both of the appeals upon review. On September 6, 2019, this Court issued

an order consolidating the appeals.

Smith raises the following issues for our review:

1. Did the [trial] court commit error by convicting [Smith] of [IDSI], unlawful contact, [EWC], corruption of a minor and indecent assault where the evidence at trial was insufficient to establish that [Smith] ever engaged in sexual intercourse with E.B.?

2. Did the court commit error by convicting [Smith] of rape, [IDSI], unlawful contact, sexual assault, [EWC], corruption of a minor and indecent assault when the evidence at trial was insufficient to establish that [Smith] ever engaged in forcible sexual intercourse or sexual contact with A.P.?

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3. Did the court commit error when it disallowed Stephon Murke from testifying regarding bias of Commonwealth witness Renata Bell against [Smith]?

4. Did the court commit error when it disallowed Donnetta Heyward from testifying regarding the layout of [Smith’s] house during the time that the alleged offenses took place?

5. Did the court commit error when it disallowed the jurors from taking notes when it was clear that the trial was going to last more than two days?

Smith’s Brief at 2-3 (capitalization omitted).

Before we reach the merits of the issues Smith presents on appeal, we

first must address whether Smith’s notices of appeal complied with Walker.

In Walker, our Supreme Court held prospectively that where, as here, a single

order resolves issues arising on more than one docket, an appellant’s failure

to file a separate notice of appeal for each case will result in quashal.

In his responses to the rules to show cause, Smith indicates that he did

file a separate notice of appeal at each docket. Response to Rule to Show

Cause, 5/12/19, at 1 (unnumbered) (indicating that he filed the notices at

different times on the same day, and attaching copies of the two notices of

appeal which bear different time stamps). However, Smith concedes that his

notices of appeal each contained two trial court docket numbers. Id.

Upon review of the record, we conclude Smith did indeed file two

separate notices of appeal, as evidenced by the independent time stamps.

See Commonwealth v. Johnson, 236 A.3d 63, 66 (Pa. Super. 2020) (en

banc) (determining that time stamps in different locations and/or different

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times of day indicate that separate notices of appeal were filed). Moreover,

we need not quash based upon the listing of multiple docket numbers on each

notice of appeal. See Commonwealth v. Johnson, 236 A.3d 1141, 1148

(Pa. Super. 2020) (en banc) (holding that “[w]e should not invalidate an

otherwise timely appeal based on the inclusion of multiple docket numbers, a

practice that the Rules [of Appellate Procedure] themselves do not expressly

forbid.”). Having determined that Smith complied with Walker and Pa.R.A.P.

341, we may proceed.

In his first two issues, Smith challenges the sufficiency of the evidence

supporting his convictions. 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. 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. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. 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.

The Commonwealth may sustain its burden by means of wholly circumstantial evidence. 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. Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of

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a defendant’s crimes beyond a reasonable doubt, the appellant’s convictions will be upheld.

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

(internal quotations and citations omitted). Importantly, “the jury, which

passes upon the weight and credibility of each witness’s testimony, is free to

believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,

33 A.3d 602, 607 (Pa. 2011).

Smith’s first issue pertains to the sufficiency of the evidence supporting

his convictions for sex crimes against E.B.; namely, IDSI (with a child),

unlawful contact with a minor (sexual offense), endangering the welfare of a

child (by parent/guardian), corruption of minors (defendant over eighteen),

and indecent assault (victim under thirteen). All of these crimes were based

on the fact that Smith engaged in oral sex with E.B., a preteen in his care, on

two occasions. The crimes at issue are defined as follows.

A person commits IDSI with a child, a felony of the first degree, when

the person engages in deviate sexual intercourse with a complainant who is

less than 13 years of age. See 18 Pa.C.S.A. § 3123(b).

A person is guilty of indecent assault when “the person has indecent

contact with the complainant, causes the complainant to have indecent

contact with the person or intentionally causes the complainant to come into

contact with seminal fluid, urine or feces for the purpose of arousing sexual

desire in the person or the complainant and . . . the complainant is less than

13 years of age.” 18 Pa.C.S.A § 3126(a)(7). Indecent contact is defined as

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“touching of the sexual or other intimate parts of the person for the purpose

of arousing or gratifying sexual desire in any person.” 18. Pa.C.S.A. § 3101.

The crime of endangering the welfare of a child is committed when “[a]

parent, guardian or other person supervising the welfare of a child under 18

years of age, or a person that employs or supervises such a person, commits

an offense if he knowingly endangers the welfare of the child by violating a

duty of care, protection or support.” 18 Pa.C.S.A. § 4304(a)(1).

A person commits the offense of corruption of a minor when that person

is an adult (age 18 or older) who “by any course of conduct in violation of

Chapter 31 (relating to sexual offenses) 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 an offense under Chapter 31

. . ..” 18 Pa.C.S.A § 6301(a)(1)(ii).

Finally, “[a] person commits [the] offense [of unlawful contact with a

minor] if he is intentionally in contact with a minor . . . for the purpose of

engaging in an activity prohibited under . . . Chapter 31 (relating to sexual

offenses).” 18 Pa.C.S.A. § 6318(a)(1).

Smith does not dispute that, at the time of the alleged incidents, he was

over eighteen years of age, E.B. was less than thirteen years of age, and E.B.

was in his personal care. Smith argues, however, that the evidence was

insufficient to prove that he engaged in sexual intercourse with E.B. because

E.B. was the only witness who testified regarding the offenses, she delayed

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one year before coming forward, she was unable to provide specific dates of

the alleged incidents, and her testimony was not corroborated by other

witnesses or by physical evidence. Smith points out that E.B. was blindfolded

during the alleged incidents, and testified that she did not see what object

was placed in her mouth or know what fluid was inserted into her mouth.

According to Smith, the evidence shows only that he placed a blindfold on E.B.

on two occasions and some type of fluid was inserted into her mouth. For

these reasons, Smith argues that all of his convictions relating to E.B. should

be reversed.

The trial court considered Smith’s sufficiency claims as related to E.B.

and determined that they lacked merit. The trial court reasoned:

In the instant matter, it is well[-]established that [Smith] was over the age of 18 and E.B was under the age of 13 when [he] first forced E.B. to perform oral sex on him. E.B. very clearly, albeit with the use of descriptors, depicts the oral sex forced upon her by [Smith]. He blindfolded E.B. and put something hard in her mouth. She could feel skin and hair around her mouth. It tasted sweet and then had a strong flavor, and after the strong flavor [Smith] removed the blindfold and was standing there with his pants unzipped. The evidence presented was more than sufficient for the jury to interpret this as forced oral copulation with ejaculation . . ..

Trial Court Opinion, 1/15/20, 9-10 (references to the record omitted).2

____________________________________________

2 The trial court also noted that Smith had indecent sexual contact with E.B. when he held her ankles and lifted them above her shoulders to view her naked body, and then told her that her “private” was “pretty.” See Trial Court Opinion, 1/15/20, at 12 (citing Commonwealth v. Capo, 727 A.2d 1126 (Pa. Super. 1999) (holding that nonconsensual contact with the victim’s back and

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We discern no abuse of discretion by the trial court in rejecting Smith’s

sufficiency claims as related to his crimes against E.B. As noted above, the

Commonwealth may establish a defendant’s guilt by means of wholly

circumstantial evidence. Franklin, 69 A.3d at 722. Moreover, the

uncorroborated testimony of a sexual assault victim, if believed by the trier of

fact, is sufficient to convict a defendant. See 18 Pa.C.S.A. § 3106 (providing

that “[t]he testimony of a complainant need not be corroborated in [sexual

assault] prosecutions”); see also Commonwealth v. McDonough, 96 A.3d

1067, 1069 (Pa. Super. 2006) (holding that the uncorroborated testimony of

a sexual assault victim, if believed by the trier of fact, is sufficient to convict

a defendant). Thus, the Commonwealth was not required to corroborate

E.B.’s testimony with physical evidence or testimony from other witnesses.

Likewise, the fact that E.B. did not immediately report the sexual

assaults is not a basis for finding the evidence insufficient. See 18 Pa.C.S.A.

§ 3105 (providing that the complainant’s failure to promptly report a sex crime

does not preclude a defendant’s conviction for the crime). Rather, the lack of

a prompt report is merely a factor to be considered by the jury in assessing

the complainant’s credibility. See Commonwealth v. Thomas, 904 A.2d

shoulders, paired with kissing the victim’s face with sexual motivation, was enough to sustain a conviction for indecent assault) and Commonwealth v. Fisher, 47 A.3d 155 (Pa. Super. 2012) (affirming that defendant engaged in indecent contact with a minor by licking the backs of her legs from her ankles to just under her buttocks)).

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964, 970 (Pa. Super. 2006) (stating that “if a complaint is delayed

substantially without any reasonable explanation, an inference can be drawn

regarding the credibility of that complaint and against whether the incident in

fact occurred”). Importantly, in the instant matter, the jury found E.B.

credible, despite her delay in coming forward. We further note that the

credibility of E.B. is irrelevant in a sufficiency review on appeal, because we

view the record in the light most favorable to the verdict winner, which is the

Commonwealth in this matter.

Additionally, the fact that E.B. may not have been able to identify the

precise dates on which the assaults occurred does not render the evidence

insufficient. The prosecution is required to fix the date on which an offense

occurred with reasonable certainty so that the defendant is provided “with

sufficient notice to meet the charges and prepare a defense.”

Commonwealth v. Brooks, 7 A.3d 852, 857-58 (Pa. Super. 2010).

However, the Commonwealth must be afforded broad latitude when

attempting to fix the date of offenses which involve a continuous course of

criminal conduct, particularly in cases involving sexual offenses against

children. Id. at 858.

Here, the evidence established that the first act of fellatio occurred in

October of 2014, when E.B. was ten years old and while her mother was still

in jail. See N.T., 9/13/18, at 43, 48, 70-71. The incident in which Smith

claimed that he wanted to check E.B. for bedbug bites and told her that her

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“private” was “pretty” occurred right before E.B. turned eleven, which was in

mid-December of 2014. See N.T., 9/13/18, at 39, 49; 9/14/18, at 58-59,

115. The second act of fellatio occurred after E.B. turned eleven and before

she revealed the abuse to her mother, which was in April of 2015. See N.T.

9/13/18, at 54-55; 9/14/18, at 57. Thus, while E.B. may not have been able

to pinpoint the specific dates on which Smith abused her, the evidence

sufficiently established the timeframe in which the acts occurred. See

Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2010) (holding

that a minor victim’s testimony that abuse occurred when she was between

the ages of seven and eight and that it took place in the summer sufficiently

established the dates of the crimes); see also Commonwealth v. Luktisch,

680 A.2d 877, 879-80 (Pa. Super. 1996) (holding that evidence indicating that

rape of minor victim occurred sometime in the spring of a particular year

sufficiently identified the date of the crime).

Finally, the testimony presented by E.B. was clearly sufficient to permit

the jury to conclude that on two occasions Smith placed his penis in her mouth

and moved it back and forth until he ejaculated inside of her. Thus, the trial

court did not abuse its discretion in concluding that the evidence was sufficient

to establish IDSI (with a child), unlawful contact with a minor (sexual offense),

endangering the welfare of a child (by parent/guardian), corruption of minors

(defendant over eighteen), and indecent assault (victim under thirteen) based

on these sexual acts. See Commonwealth v. Snyder, 870 A.2d 336 (Pa.

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Super. 2005) (holding that the evidence was sufficient to sustain defendant’s

convictions for IDSI, indecent assault, and corruption of minors where the

preteen victim testified that defendant, among other things, made her suck

on his penis until a “whitish liquid” came out). For these reasons, Smith’s first

issue warrants no relief.

Smith’s second issue pertains to the sufficiency of the evidence

supporting his convictions for sex crimes against A.P.; namely, rape (forcible

compulsion), IDSI (forcible compulsion), unlawful contact with a minor, sexual

assault, endangering the welfare of a child, corruption of minors (defendant

over eighteen), and indecent assault (forcible compulsion). Each of these

convictions was based on the fact that that Smith compelled A.P. to repeatedly

engage in sexual intercourse with him and to perform oral sex on him. We

employ the same standard of review as discussed above. The offenses at

issue are defined as follows.

With respect to the crime of rape by forcible compulsion, “[a] person

commits a felony of the first degree when the person engages in sexual

intercourse with a complainant . . .[b]y forcible compulsion.” 18 Pa.C.S.A. §

3121(a)(1).

A person commits IDSI by forcible compulsion, a felony of the first

degree, “when the person engages in deviate sexual intercourse with a

complainant . . . by forcible compulsion.” 18 Pa.C.S.A. § 3123(a)(1).

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The “forcible compulsion” necessary for these two crimes “includes not

only physical force or violence but also moral, psychological or intellectual

force used to compel a person to engage in sexual intercourse against that

person’s will.” Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986).

This “physical, intellectual, moral, emotional or psychological force,” can be

“either express or implied.” 18 Pa.C.S.A. § 3101. Factors relevant to whether

forcible compulsion has occurred include:

the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress.

Rhodes, 510 A.2d at 1226.

A person commits sexual assault, a felony of the second degree, “when

that person engages in sexual intercourse or deviate sexual intercourse with

a complainant without the complainant’s consent.” 18 Pa.C.S.A. § 3124.1.

Because the element of forcible compulsion encompasses a lack of consent,

sexual assault is a lesser-included offense of IDSI by forcible compulsion.

Commonwealth v. Buffington, 828 A.2d 1024, 1031-32 (Pa. 2003).

“A person is guilty of indecent assault if the person has indecent contact

with the complainant, causes the complainant to have indecent contact with

the person or intentionally causes the complainant to come into contact with

seminal fluid, urine or feces for the purpose of arousing sexual desire in the

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person or the complainant and . . . the person does so by forcible compulsion.”

18 Pa.C.S.A. § 3126(a)(2).

As explained above, the crime of endangering the welfare of a child is

committed when “[a] parent, guardian or other person supervising the welfare

of a child under 18 years of age, or a person that employs or supervises such

a person, commits an offense if he knowingly endangers the welfare of the

child by violating a duty of care, protection or support.” 18 Pa.C.S.A. §

4304(a)(1).

As also explained above, a person commits the offense of corruption of

a minor when that person is an adult (age 18 or older) who “by any course of

conduct in violation of Chapter 31 (relating to sexual offenses) 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 an

offense under Chapter 31 commits a felony of the third degree.” 18 Pa.C.S.A

§ 6301(a)(1)(ii).

Finally, “[a] person commits [the] offense [of unlawful contact with a

minor] if he is intentionally in contact with a minor . . . for the purpose of

engaging in an activity prohibited under . . . Chapter 31 (relating to sexual

Smith argues that the evidence was insufficient to prove these crimes

against A.P., because A.P., like E.B., was the only witness who testified

regarding the offenses, she delayed one year before coming forward, she was

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unable to provide specific dates of the alleged incidents, and her testimony

was uncorroborated by other witnesses and by physical evidence. According

to Smith, the evidence showed only that he allowed A.P. to stay in his home.

For these reasons, Smith argues that his convictions relating to A.P. should

The trial court considered Smith’s sufficiency claims as related to A.P.

and determined that they lacked merit. The trial court reasoned:

[Smith] began raping A.P. when she was fifteen (15) years old. At that time, A.P., who had already been removed from her birth mother’s care and was placed in foster care, was on the outs with her adoptive mother. [Smith], knowing full well about A.P.’s home and living situation took advantage of A.P, and began to rape her [and make her perform oral sex on him]. Soon thereafter, A.P.’s mother was incarcerated, and [Smith] assumed the role [of] guardian. [Smith] used A.P.’s precarious state of affairs and began to control her everyday life. He provided her with day[-]to[-]day necessities and gifts and withheld them when she finally stood up for herself. [Smith] forced A.P. into a quid pro quo “relationship.” He used the threat of withholding basic necessities such as food and housing to continue the abusive relationship. It is this type of psychological force that the [Pennsylvania] Supreme Court articulated as forcible compulsion in Rhodes.

Trial Court Opinion, 1/15/20, 8-9, 10, 11 (citations, references to the record,

and unnecessary capitalization omitted).

We discern no abuse of discretion by the trial court in rejecting Smith’s

sufficiency claims as related to A.P. The evidence, when viewed in the light

most favorable to the Commonwealth, established that Smith engaged in

sexual intercourse with A.P., both vaginally and orally, on multiple occasions,

and that he used his dominant position and A.P.’s vulnerability and isolation

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to compel her to engage in those sex acts against her will. Accordingly, the

evidence was sufficient to sustain Smith’s convictions for rape (forcible

compulsion), IDSI (forcible compulsion), unlawful contact with a minor, sexual

assault, endangering the welfare of a child, corruption of minors (defendant

over eighteen), and indecent assault (forcible compulsion). See

Commonwealth v. Dorman, 547 A.2d 757, 761-62 (Pa. Super. 1982)

(holding that the evidence was sufficient to sustain defendant’s conviction of

rape by forcible compulsion where the 38-year-old drove his teenage niece to

a secluded area, proceeded to have sex with her even though she said “don’t,”

where defendant occupied a position of authority and trust such that the victim

would feel coerced to submit to his demands out of a sense of duty or

obedience).

Furthermore, as explained above with respect to E.B., the

Commonwealth was not required to corroborate A.P.’s testimony concerning

Smith’s sexual abuse, and A.P.’s delay in coming forward was a factor to be

considered by the jury in assessing her credibility rather than a matter of

sufficiency. See 18 Pa.C.S.A. §§ 3105, 3106.

Additionally, while A.P. did not identify the specific dates when each of

the assaults occurred, she testified that the first one happened the night be-

fore her mother reported to jail, which was in mid-July of 2014, and that the

assaults continued multiple times each week throughout the summer. See

N.T., 9/13/18, at 116, 120-21; 9/14/18, at 55). This timeframe was specific

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enough to provide Smith with adequate notice of the dates of the incidents.3

Accordingly, as the evidence was sufficient to sustain each of Smith’s

convictions for sex crimes against A.P., his second issue merits no relief.

In his third issue, Smith submits that the trial court erred when it

disallowed Stephon Murke from testifying regarding Commonwealth witness

Renata Bell’s bias against Smith. Our standard of review is as follows:

The admission of evidence is committed to the sound discretion of the trial court, and a trial court’s ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Benvenisti-Zarom, 229 A.3d 14, 25 (Pa. Super. 2020)

(citation omitted).

Further, evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”

Pa.R.E. 401. However, “[a]lthough relevant, evidence may be excluded if its

probative value is outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.” Pa.R.E. 403.

3 Notably, Smith conceded that A.P. lived with him during the specified time period. See N.T. 9/24/18, 143-45, 149-50. Thus, even if the timeframe established by A.P. was somehow insufficient, Smith was not prejudiced in his ability to present a defense. See Commonwealth v. Brooks, supra.

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Relevant evidence may also be excluded if it constitutes inadmissible

hearsay. Commonwealth v. King, 959 A.2d 405, 412 (Pa. Super. 2008)

(holding that relevant evidence may nevertheless be inadmissible if it violates

a rule of competency, such as the hearsay rule). Hearsay means “a statement

that (1) the declarant does not make while testifying at the current trial or

hearing; and (2) a party offers in evidence to prove the truth of the matter

asserted in the statement.” Pa.R.E. 801(c). Hearsay is not admissible except

as provided by our Rules of Evidence, by other rules prescribed by the

Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. Thus, an out of court

declaration offered for its substantive truth, even if relevant, is nevertheless

incompetent and hence inadmissible hearsay if it does not fall within any

exception. See Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa.

1981).

Smith claims that he attempted to call Murke as a fact witness to testify

that Renata Bell, the mother of E.B. and A.P., conspired with Demetrius Hall

to get her daughters to fabricate allegations of sexual misconduct against

Smith. Smith maintains that Hall and Bell took this action in response to

Smith’s discovery that Hall had stolen money from Smith. Smith asserts that

the trial court erred by sustaining the Commonwealth’s objection to Murke’s

testimony on the grounds of hearsay and relevancy. Smith maintains that

Murke’s testimony would have been relevant since it would have given Bell a

motive to lie and to urge E.B. and A.P. to fabricate the allegations of sexual

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misconduct. Smith further claims that Murke’s testimony would have

supported his theory that Bell conspired to pressure E.B. and A.P., which

would have made their allegations against him less believable.

While Smith concedes that the trial court disallowed Murke’s testimony

based on both relevancy and hearsay, Smith only addresses the relevancy

aspect of the trial court’s ruling. Importantly, as noted above, relevant

evidence may be excluded if it constitutes inadmissible hearsay. See King,

959 A.2d at 412; Thornton, 431 A.2d at 251.

Our review of the record indicates that the trial court requested an offer

of proof from Smith as to Murke’s proposed trial testimony.4 After Smith

provided that offer of proof, the trial court expressed its concerns that Murke

was not a fact witness to any matter before the court, and further that Murke

was “going to testify to a lot of hearsay.” N.T., 9/18/18, at 111. Smith did

not object the trial court’s assessment, and did not identify any exception to

the hearsay rule that might apply. Id. Instead, he stated in response to the

trial court’s statement, “O.K. No problem. I have to go off of me then.” Id.

Even now, on appeal, Smith does not dispute the trial court’s characterization

of Murke’s proposed testimony as hearsay, and does not identify any

purported exception to the hearsay rule.

4 We note that Smith was represented by counsel at the outset of his trial, but on day two of trial, he chose to represent himself. Thus, he was proceeding as his own lawyer at this point of the litigation. We further note that Smith is represented by counsel in this appeal.

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More importantly, however, Smith did not preserve this issue for our

review. In order to preserve a claim for appellate review, a party must make

a timely and specific objection at the appropriate stage of the proceedings

before the trial court, or the claim is waived. See Commonwealth v.

Russell, 209 A.3d 419, 429 (Pa. Super. 2019). Here, Smith did not object to

the trial court’s hearsay ruling. As such, he has waived any challenge to that

ruling on appeal. See Pa.R.A.P. 302(a) (providing that issues not raised in

the court below are waived and cannot be raised for the first time on appeal);

see also Commonwealth v. Colon, 846 A.2d 747, 752-53 (Pa. Super. 2004)

(holding that the defendant waived his claim regarding the trial court’s

evidentiary ruling where he acceded to the ruling when it was made). Thus,

Smith’s third issue warrants no relief.

In his fourth issue, Smith contends that the trial court erred when it

disallowed him from calling Donnetta Hayward to testify regarding the layout

of his home at the time of the alleged incidents. In addressing this

admissibility of evidence issue, we employ the same standard of review as

discussed above.

Smith claims that he attempted to call Hayward as both a character

witness and as a fact witness. Smith wanted Hayward to testify as a fact

witness regarding the layout of his house and furniture in the house that would

make the Commonwealth’s case less believable. Smith argues that the trial

court erred in sustaining the Commonwealth’s objection on the basis that her

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proposed factual testimony would be cumulative since earlier defense

witnesses, Shannon Banks and Betty Ricks, had given testimony regarding the

absence of a bench in the living room.

Smith maintains that Hayward’s proposed testimony would not have

been cumulative because she would have been able to describe Smith’s house

at the time of certain of the alleged incidents; namely, the summer of 2014.

Smith points out that Banks admitted on cross-examination that she had not

been to Smith’s house before 2015. While Smith concedes that Ricks was

able testify that she observed the layout of his house during this time period,

she admitted on cross-examination that she suffered from vision impairment,

rendering her testimony less compelling. On these bases, Smith argues that

Hayward’s proposed testimony was different and more relevant than the

testimony provided by Banks and Ricks regarding the layout of Smith’s house.

Our review of the record reflects that, when Smith sought to call

Hayward as a witness, the trial court requested an offer of proof. 5 Smith

responded as follows:

Offer of proof is she lived in the residence prior to 2014 and has been at the residence after 2014, and I would like for her to verify the contents that is in the photographs and the layout of the house. That’s it. Then I will do character, Your Honor. But I did give her. She is on my list. ____________________________________________

5 The trial court also noted that Smith failed to disclose the identity of Hayward prior to trial, in violation of Pa.R.Crim.P. 573(c)(1)(b). The Court and the Commonwealth were unaware that Smith intended to call Hayward as a witness up until up until the point when he called her to the witness stand. See Trial Court Opinion, 1/15/20, at 19.

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N.T., 9/20/18, at 16.

Here, Smith indicated that he wanted Hayward to testify regarding the

layout of his house and to verify the photographs depicting its contents.

However, a literal reading of his offer of proof indicates that, although

Hayward resided in Smith’s home before 2014, and visited the home after

2014, she did not visit the home at any time in 2014, when most of the abuse

took place.

Even assuming that Smith’s intended proffer was that Hayward had

been to the home in 2014, several other witnesses had already testified as to

the layout of the home and the contents therein within that timeframe.

Smith’s home healthcare worker, Kimberly Robinson, and Smith’s girlfriend,

Angel Miller, were regularly in the house in 2014, and testified regarding the

layout of Smith’s home and the photographs depicting it. See N.T., 9/20/18,

at 27-29, 30-32; 9/24/18, at 29-30, 32-39, 42-46, 56. Finally, Smith himself

took the witness stand and testified regarding the photographs and the home’s

layout. See N.T., 9/24/18, at 96; 9/25/18, at 14. Thus, even if Banks had

not been to the home before 2015 and Ricks had vision problems, the

proposed testimony of Hayward still would have been cumulative to the

testimony of Robinson, Miller, and Smith himself, who resided in the home

throughout the relevant time period. Accordingly, Smith’s fourth issue merits

no relief.

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In his final issue, Smith contends that the trial court erred in disallowing

the jurors from taking notes during the trial based on its determination that

the trial would be short. Smith points to Pennsylvania Rule of Criminal

Procedure 644, which governs the taking of notes by jurors and provides that,

“[w]hen a jury trial is expected to last for more than two days, jurors shall be

permitted to take notes during the trial for their use during deliberations.

When the trial is expected to last two days or less, the judge may permit the

jurors to take notes.” Pa.R.Crim.P. 644(A).

Smith argues that the trial court could not have reasonably anticipated

that the trial would be concluded within two days or less. He points out that

the trial involved two complainants and fourteen separate criminal charges.

Smith further points out that the Commonwealth called E.B., A.P., and several

other witnesses, and Smith called several defense witnesses to testify on his

behalf. Smith maintains that the jury heard testimony on seven separate

days, and did not begin deliberations until thirteen days after the trial began.

He argues that allowing the jurors to take notes would have been valuable to

helping them to refresh their memory and focus their concentration.

Here, the record reflects that the trial court indicated on the first day of

trial that the jurors were not going to be allowed to take notes because “[t]his

is a short case.” See N.T., 9/13/18, at 21. Defense counsel agreed that the

case was going to be “relatively short.” Id. at 32. Smith did not object to the

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trial court’s assessment that the trial would be short, or its decision to preclude

notetaking by the jurors.6

Nevertheless, on the third day of trial, Smith asked the court to permit

the jurors to take notes. See N.T., 9/17/18, at 8-9, 15. At that point, E.B.,

A.P., and their mother had already completed their testimony. The trial court

rejected Smith’s untimely request to allow notetaking. As the court explained,

“[w]e did not begin note taking at the beginning of this trial so there will be

no note taking mid-trial either.” Id. at 15.

Because Smith did not timely ask the court to allow notetaking, and did

not object at the beginning of trial when the trial court initially stated that

notetaking would be disallowed, his claim that the court should have permitted

notetaking is waived. See Russell, 209 A.3d at 429.7

6 At the state of his trial, Smith was represented by counsel; as mentioned above he decided to represent himself on the second day of trial.

7 Even if Smith’s claim had been preserved for our review, we would had concluded that it lacked merit. The operative language in Rule 644 concern’s the trial court’s pretrial expectation regarding the length of the proceeding. Our review of the record indicates that the trial lasted more than two days due to numerous delays which could not have reasonably been anticipated by the trial court. For example, Smith’s decision to proceed pro se on the second day of trial required the trial court to take frequent breaks from the testimony to ensure that Smith understood his rights, and to explain to him proper court procedures. See Trial Court Opinion, 1/15/20, at 21. During trial, Smith announced that he had gone on a “medication strike” because he was unhappy with the court’s rulings, and threatened to add a “hunger strike” to his “medication strike” if the court continued to rule against him. Smith subsequently suffered some type of medical emergency during the course of his trial, purportedly due to his “medication strike,” and the proceedings had

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As none of Smith’s claims merit relief, we affirm the judgment of

sentence.

Judgement of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/19/21

to be suspended for a day and a half, plus the following weekend, due to his hospitalization. Id. at n3.

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