Com. v. Sweeney, W.

• Court: Superior Court of Pennsylvania
• Decided: October 7, 2016
• Docket: 2558 EDA 2015
• Status: Unpublished

Opinion

J-A17039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WILLIAM WESLEY SWEENEY

Appellant No. 2558 EDA 2015

Appeal from the Judgment of Sentence July 9, 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0007866-2013

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 07, 2016

Appellant, William Wesley Sweeney, appeals from the judgment of

sentence entered in the Delaware County Court of Common Pleas, following

his bench trial convictions for five counts of criminal attempt (related sexual

offenses), five counts of criminal solicitation (related sexual offenses), and

one count each of unlawful contact with minor, and criminal use of

communication facility.1 We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case; so, we will not restate them.

Appellant raises the following issues for our review:

____________________________________________

1 18 Pa.C.S.A. §§ 901(a), 902(a), 6318(a)(1), and 7512(a), respectively.

_____________________________

*Retired Senior Judge assigned to the Superior Court. J-A17039-16

WAS THERE SUFFICIENT EVIDENCE PRESENTED AT THE TIME OF TRIAL TO CONVICT [APPELLANT] OF CRIMINAL ATTEMPT PHOTOGRAPHS/FILMS/DEPICTION ON COMPUTER SEX ACT—CHILD, CRIMINAL SOLICITATION IDSI PERSON LESS THAN SIXTEEN YEARS OF AGE, CRIMINAL SOLICITATION STATUTORY SEXUAL ASSAULT, CRIMINAL SOLICITATION CORRUPTION OF MINORS, CRIMINAL SOLICITATION INDECENT ASSAULT ON PERSON LESS THAN SIXTEEN YEARS OF AGE, CRIMINAL SOLICITATION PHOTOGRAPHS/FILMS/DEPICTION ON COMPUTER SEX ACT—CHILD, UNLAWFUL CONTACT WITH MINOR, AND CRIMINAL USE OF COMMUNICATION FACILITY?

WAS THE GUILTY VERDICT AS TO THE CHARGES OF CRIMINAL ATTEMPT PHOTOGRAPHS/FILMS/DEPICTION ON COMPUTER SEX ACT—CHILD, CRIMINAL SOLICITATION [IDSI] PERSON LESS THAN SIXTEEN YEARS OF AGE, CRIMINAL SOLICITATION STATUTORY SEXUAL ASSAULT, CRIMINAL SOLICITATION CORRUPTION OF MINORS, CRIMINAL SOLICITATION INDECENT ASSAULT ON PERSON LESS THAN SIXTEEN YEARS OF AGE, CRIMINAL SOLICITATION PHOTOGRAPHS/FILMS/DEPICTION ON COMPUTER SEX ACT—CHILD, UNLAWFUL CONTACT WITH MINOR, AND CRIMINAL USE OF COMMUNICATION FACILITY AGAINST THE WEIGHT OF THE EVIDENCE?

WAS THE TRIAL COURT IN ERROR FOR DENYING [APPELLANT’S] MOTION IN LIMINE AS TO THE REQUESTED EXCLUSION OF EVIDENCE OF A CRAIGSLIST ADVERTISEMENT?

WAS THE TRIAL COURT IN ERROR IN ALLOWING EVIDENCE TO BE PRESENTED AT THE HEARING PURSUANT TO THE COMMONWEALTH’S 404(B) MOTION AS TO PURPORTED STATEMENTS MADE WHEN THOSE INDIVIDUALS SUPPOSEDLY MAKING SAID STATEMENTS WERE NOT PRESENT IN COURT?

WAS THE TRIAL [COURT] IN ERROR IN GRANTING THE COMMONWEALTH’S 404(B) MOTION?

(Appellant’s Brief at 5).

-2- J-A17039-16

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable James P.

Bradley, we conclude Appellant’s issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed September 30, 2015, at 2-14)

(finding: (1 and 2) Sgt. Smith conducts undercover investigations and

pursues Craigslist postings and responds to postings, which appear to be

seeking sex with underage children; Sgt. Smith posed as “Sammy,” 15-year-

old boy, in response to ad entitled “Sunday Funday in Delco─33

(Aston/Lima)”; ad stated: “Looking for some fun (mutual oral) at my place

today. I am looking for someone under 25, white, thin/athletic, D/D Free,

and likes to get sucked and suck too…”; Sgt. Smith took “screen shot” of ad

and initiated contact with Appellant on 10/20/13 through e-mail; Appellant

asked “Sammy” for pictures, but “Sammy” replied he was 15 and “new at

this” and did not want his mom to see communications; when Appellant

asked if “Sammy” was affiliated with law enforcement, “Sammy” replied he

had to finish homework and ended conversation that day; on 10/22/13, Sgt.

Smith e-mailed Appellant image of fellow officer from when officer was 15

years old; Appellant continued to communicate with “Sammy” in following

days via e-mail and text, sent pictures of himself, and suggested they meet;

Appellant told “Sammy” he likes to give oral and asked “Sammy” to send a

“cock pic”; Appellant provided “Sammy” with directions to meeting location;

-3- J-A17039-16

when Appellant arrived at meeting location, Sgt. Smith immediately

recognized Appellant from his pictures; officers detained Appellant;

Appellant admitted he posted ad on Craigslist but claimed he was only

seeking “workout partner”; Appellant denied exchanging any e-mails

referencing sexual activity or posting the language accompanying ad seeking

“mutual oral”; search warrant on Appellant’s home revealed computer from

which Appellant communicated with “Sammy”; expert testified Craigslist

identification number assigned to ad was same number attached to e-mail

exchange; Commonwealth presented sufficient evidence Appellant

attempted to commit IDSI with 15-year-old boy; Appellant’s continued

communication with “Sammy” after posting ad shows Appellant took

“substantial step” toward completing IDSI by appearing at designated

location to meet “Sammy”; verdict was not against weight of evidence;2 (3)

2 In its opinion at page 4, footnote 1, the trial court notes Appellant’s Rule 1925(b) statement sets forth a general claim of insufficiency for all charges, but Appellant failed to identify which elements of which offenses had not been satisfied. The trial court could have waived the issue for vagueness. See Commonwealth v. Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007) (stating Rule 1925(b) statement that is not specific enough for trial court to identify and address issues Appellant wishes to raise on appeal may result in waiver); Commonwealth v. Williams, 959 A.2d 1252, 1257-58 (Pa.Super. 2008) (stating to preserve claim that evidence was insufficient to sustain conviction, appellant must specify allegedly unproven element or elements in his Rule 1925(b) statement, or face waiver of claim). Instead of waiving Appellant’s claim entirely, the court concluded Appellant’s issue related to an alleged insufficiency of the evidence to prove intent and a substantial step toward the commission of IDSI. The court drew Appellant’s specific sufficiency claim (Footnote Continued Next Page)

-4- J-A17039-16

Craigslist ad was properly authenticated through Sgt. Smith’s testimony that

ad produced at trial was same ad Sgt. Smith documented on 10/20/13; Sgt.

Smith had personal knowledge to testify ad is what Commonwealth claimed

it was; ad was also not admitted to prove truth of matter asserted but to

show Sgt. Smith’s subsequent course of conduct in initiating contact with

Appellant; (4 and 5) prior to trial, Commonwealth gave notice of its intent

to introduce evidence from two witnesses regarding events, which transpired

in separate instances between Appellant and each witness; following pretrial

hearing, pretrial court ruled testimony from designated witnesses was

admissible for limited purpose of proving Appellant’s intent in communicating

with “Sammy” was to engage in sex with underage boy; notwithstanding

pretrial evidentiary ruling, at trial, court heard witnesses’ testimony but

decided it was irrelevant and unreliable and disregarded it in toto; to extent

admission of evidence was improper, it constituted harmless error3). The

record supports the court’s decision, and we affirm on the basis of the trial

court opinion.

Judgment of sentence affirmed. _______________________ (Footnote Continued)

from his motion for judgment of acquittal. See Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d 1058 (2007) (stating court can review issue despite vague Rule 1925(b) statement, where court readily apprehends appellant’s claim and thoroughly addresses it in opinion). 3 See Commonwealth v. Smith, 97 A.3d 782 (Pa.Super. 2014) (stating: “[A] trial court, acting as the finder of fact, is presumed to know the law, ignore prejudicial statements, and disregard inadmissible evidence”).

-5- J-A17039-16

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/7/2016

-6- Circulated 09/30/2016 03:39 PM

·~

IN THE COURT OF COMMON PLEASOF DELAWARECOUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA CP-23-CR- 7866-2013

vs.

WILLIAM W. SWEENEY

Ryan Grace, Esquire, on behalf of the Commonwealth Scott D. Galloway, Esquire, on behalf of the Defendant

OPINION Bradley, l. FILED:

After a bench trial the Defendant, William Sweeney was found guilty of criminal

attempt and solicitation of various sex offenses including, inter alia, involuntary deviate

sexual intercourse of a person less than sixteen years of age, statutory sexual assault and

indecent assault of a person less than sixteen years of age. On July qJ 2015 an aggregate

sentence of three to six years of incarceration to be followed by three years of probation was

imposed. Post-sentence motions were filed on July 20, 2015 and on July 28, 2015 the

motions were denied. On August 24, 2015 a timely Notice of Appeal was filed, necessitating

this Opinion.

In his "Rule 1925(b) Statement Concise Statement of Matters Complained of on

Appeal," Defendant challenges the weight and the sufficiency of the evidence. Additionally,

the Defendant claims that the trial Court erred by denying Defendant's pre-trial motion in

·······. 1

® limine which sought to exclude from evidence the Craigslist ad that was the genesis of the

investigation that culminated in Defendant's conviction. Finally, it is alleged that the Court

erred when, during a hearing on the Commonwealth's Rule 404(b) motion, "evidence" of

"purported statements was allowed when the proponents were not present in Court," and

when it granted the 404(b) motion.

Sufficiency and Weight of the Evidence

In Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa. Super. 2004) the Court

considered the distinctions between claims that challenge the sufficiency and the weight of

the evidence:

A claim challenging the sufficiency of the evidence is a question of law. 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. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. 2 Id. citingCommonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000). In reviewing the sufficiency of evidence, the test applied is "whether the evidence,

and all reasonable inferences deducible therefrom, viewed in the light most favorable to the

Commonwealth as verdict-winner, are sufficient to establish all the elements of the offense

beyond a reasonable doubt." Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa. Super.

2001) quoting Commonwealth v. Williams, 720 A.2d 679, 682-683 (Pa. 1998). The

Commonwealth may rely on wholly circumstantial evidence to sustain its burden of proving

each element of a crime charged. Direct and circumstantial evidence are considered equally

when assessing the sufficiency of the evidence. Id. Where guilt is predicated upon

circumstantial evidence, "[t]he inferred fact must flow, beyond a reasonable doubt, from the

proven fact where the inferred fact is relied upon to establish the guilt of the accused or the

existence of one of [the] elements of the offense." Commonwealth v. Paschall, 482 A.2d

589, 591-92 (Pa. Super. 1984) quoting Commonwealth v. Meredith, 416 A.2d t#JI, 485 (Pa.

1980). See also Commonwealth v. Hargrave, 745 A2d 20, 22-23 (Pa. Super. 2000). When

assessing the sufficiency of the evidence the Court must evaluate the entire record and all of

the evidence must be considered in the aggregate. See Commonwealth v. Bricker, 882 A.2d

1008 (Pa. Super. 2005) citing Commonwealth v. Pappas, 845 A.2d 82'1 (Pa. Super. 2004);

Commonwealth v. Hopkins, 747 A.2d 910, 913-14 (Pa. Super. 2000). In this case it is within

the province of the Court, sitting as the trier of fact to determine the credibility of witnesses

and the weight of the evidence. See ~· Commonwealth v. Davidson, 860 A.2d 575, 580

(Pa. Super. 2004). "If the factfinder reasonably could have determined from the evidence

adduced that all of the necessary elements of the crime were established, then that evidence

3 Hopki

Brown, 48 A.Jd 426, 430 (Pa. Super. 2012) C'[t]he Commonwealth may sustain its burden by

means of wholly circumstantial evidence, and we must evaluate the entire trial record and

consider all evidence received against the defendant."); Commonwealth v. Moreno, 14 A.3d

133,136 (Pa. Super. 2011).

In a "Motion for Judgment of Acquittal filed on April 21, 2015, after the verdict was

returned but before sentencing Defendant averred that the evidence presented at trial failed '

to prove beyond a reasonable doubt that the Defendant acted with the specific intent

necessary to establish Attempted Involuntary Deviate Sexual Intercourse and failed to prove

the Defendant took the "substantial step" that is a necessary element where Attempt is

charged.1

"A person commits an attempt when, with intent to commit a specific crime, he does

any act which constitutes a substantial step toward the commission of that crime." 18 P.S.

901. "The substantial step test broadens the scope of attempt liability by concentrating on

the acts the defendant has done and does not any longer focus on the acts remaining to be

1 Defendant's Rule 1925(b) statement sets forth a general claim of Insufficiency as to the following charges: 1) Criminal Attempt, Sexual Abuse of Children (§§ 18 Pa.C.S.A. §§ 901; 6312) (Count 5), 2) Criminal Solicitation (Involuntary Deviate Sexual Intercourse of a person less than 16 years of age (18 Pa.C.S.A. §§ 902 & ;1zS.) (Count 6), 3) Criminal Solicitation Statutory Sexual Assault (18 Pa.C.S.A. §§ 902 & 3122.1) (Count 7), 4) Criminal Solicitation Corruption of Minors (18 Pa.C.S.A. §§ 902 & 6301) (Count 8), 5) Criminal Solicitation Indecent Assault of a Person Less than 16 years of age (18 Pa.C.S.A. §§ 902 &. 3126(a)(8) (Count 9), 6) Criminal Solicitation Sexual Abuse of Children, (18 Pa.C.S.A. §§ 902 & 6312) (Count 10), 7) Unlawful Contact with a Minor (18 Pa.C.S.A. § 6318) (Count 11), and 8) Criminal Use of Communication (18 Pa.C.S.A. §7512) (Count 12) . The elements that allegedly have not been satisfied are not identified. Similarly, specific elements were not Identified in Defendant's post-sentence motion. From the record however, specifically from the Motion for Judgment of Acquittal, the Court has concluded that Defendant's sufficiency claim is based on an alleged insufficiency In the evidence proving intent and that Defendant took a "substantial step" toward the commission of Involuntary Deviate Sexual Intercourse. See Commonwealth v. Veon, 109 A.3d 754, '11S(Pa. Super. 2015); Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013); Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009). Accordingly, only the specific claim that has been identified is addressed in this Opinion. 4 done before the actual commission of the crime." Commonwealth v. Zingarelli, 839 A.2d

1064, 1069 (Pa. Super. 2003) quotingCommonwealth v. Gilliam, 417 A.2d 1203, 1205 (Pa. Super. 1980). The defendant need not actually be in the process of the crime when arrested

in order to be guilty of criminal attempt. Id. Involuntary deviate sexual intercourse is defined

as follows: "(a) Offense defined.-A person commits a felony of the first degree when #it. tpe,~"'

engages in deviate sexual intercourse with a complainant: ... 7) who is less than 16

years of age and the person is four or more years older than the complainant and the

complainant and person are not married to each other. 18 Pa.C.S.A. 3123(a)(7). Involuntary

deviate sexual intercourse occurs when the actor, by physical compulsion or threats thereof,

coerces the victim to engage in acts of anal and/or oral intercourse. Zingarelli, supra, citing

Commonwealth v. Poindexter, 646 A.2d 1211, 1215 (Pa. Super. 1994).

The facts viewed in the light most favorable to the Commonwealth follow. Sergeant

Gary Smith of the Aston Police department serves on the Delaware County Internet Crimes

Against Children Task Force. See N.T. 1/15/15 p. 13. While conducting undercover

investigations in this role Sergeant Smith pursues Craigslist postings and responds to

postings that appear to be seeking sex with underage children. In this instance Sergeant

Smith posed as "Sammy," a fifteen year-old boy. Id. at 13-16. On October 20, 2013

Sergeant Smith responded to an ad entitled "Sunday Funday in Delco -33 (Aston/Lima). Sgg

Exhibit C-1. The ad stated: "Looking for some fun (mutual oral) at my place today. I am

looking for someone under 25, white, thin/athletic, D/D Free, and likes to get sucked and

suck too (Not necessary) Send STATS and PICS Please. If you send me an e-mail, please

have pies, and Stats attached. Location would help too. I have more pies to trade. U would

5 have to, come to Aston/Lirr 1rea at my place." S~rgeant SmYth' k a "screen shot" of the ad, which was posted by the Defendant, and initiated contact with the Defendant on October

20, 2013 through an e-mail. The exchange began with Defendant asking "Sam B" for "pies

stats location something." "Sammy" replied: im from the aston upper chi area im 15 and new

at this .... i don't look my age." When Defendant repeated a request for "pies," "Sammy"

replied: "i will I just dont want my mom to see." Later on the same day Defendant e-mailed:

"I still haven't gotten a pie from you. Tell me, are you a police officer or affiliated with the

law in any way shape or form?" and asks in a follow-up:" ... are you with the Law?" ~

ExhibitC-2. The exchanges on October 20, 2013 end after "Sammy" tells the Defendant that

his mom is "startinq to yell at him to finish his homework," and says that he will send a

picture "tomorrow." On October 22, 2013 Sergeant Smith e-mailed the Defendant an image

of a fellow officer that was captured when that officer was fifteen years old. Id. at pp. 15, 33.

Photographs were exchanged and the Defendant continued to communicate with "Sammy"

during the days that follow. Defendant suggested a meeting and '\Sammy" replied, "im not

old enough to drive but I have a bike." On October 23, 2013 the Defendant suggested that

they meet at the "Vo-Tech" which is located near his house because the Defendant "doesn't

have a car right now." The meeting was arranged and "Sammy" asked the Defendant what

he likes to do. After some back and forth Defendant replied, "I like to talk, hang out, watch

TV, give oral. Take a cock pie and send." The email exchange is replete with responses from

"Sammy" in which he relates the fear that he might get in trouble with his "mom," and

Defendant suggests that "Sammy go into the bathroom and take a "dick pick." See id. In an

e-mail Defendant and asked, "how big are u?" The Defendant's emails became more graphic

6 in nature. For example, Defendant asked "Sammy" to send photos of his "hard D," and

promised Sammy the best "BJ." See id.

At 5:46 p.m. on Sunday, October 27, 2013 a meeting was arranged to take place at

the "Vo-Tech." in about "20 minutes." Defendant provided directions to the school. "Sammy"

told the Defendant that he would be riding his bike and would see him soon. Defendant

directed that they should meet in the parking lot.

At about 6:00 p.m. that evening Sergeant Smith went to the Vo-Tech parking lot and

waited. See N.T. 1/15/15. Defendant arrived and based on the pictures that were exchanged

Sergeant Smith recognized him "immediately." Id. at 32-33. Defendant walked through and

behind trees, out of sight a "couple of times," as he approached the parking lot from his

home and he was taken into custody. See N.T. 1/15/15 p. 32-34; 1/16/15 pp. 13.

Following his arrest and after waiving Miranda rights, Defendant gave a statement at

the Aston Police Station. See Exhibit C-4b. Defendant admitted that he placed a Craigslist ad

but contended that he was only looking for a workout partner and that he did not post the

text that accompanies the ad contained in Exhibit C-1. He admitted exchanging e-mails with

"Sam BPA." He knew generally where Sam lived, that "Sam" would be meeting him at the

Vo-Tech and that "Sam" would be riding a bike. He denied ever discussing sexual activity of

any kind in the e-mail exchanges. Although Defendant acknowledged participating in the

lengthy exchange that took place between October 20th and October 2ih but maintained

that he could not recall and did not acknowledge seeing those particular messages in which

"Sammy" stated his age or suggested in any way that he was about fifteen years-old. Id.

7 A search warrant was executed at Defendant's home, which is located about 100

yards from the Vo-Tech. N.T. 1/16/15 p. 6, 11; 1/15/15 p. 52. Two computers were

recovered. N.T. 1/16/15 p. 16-17. One was in plain view in the Defendant's bedroom.

Officers executing the warrant searched further when they found a computer port cord

coming from the wall in Defendant's bedroom that was incompatible with this computer. Id.

A second computer that was compatible with this cord was found underneath the kitchen

sink. This computer was used to communicate with "Sammy." Id.

Detective Joseph Walsh, a member of the Internet Crimes Against Children Task Force

testified without objection as an expert in digital forensics. See N.T. 1/16/15 pp. 95-120.

Detective Walsh testified that the "Sunday Funday" ad was created on October 20, 2013 and

was modified on October 27, 2013 at 4:04 p.m. Id.. at 99. The modified version of the

"Sunday Funday" ad stated only that Defendant was looking for a work-out partner and did

not include any reference to sexual activity that was included in the ad that Sergeant Smith

viewed. Id. at 99-103. Detective Walsh also testified that the Craigslist identification number

that was assigned to the ads was the same identification number attached to the e-mail

exchange. Id.. at 101.

Through credible evidence the Commonwealth demonstrated beyond a reasonable

doubt that the Defendant attempted to commit Involuntary Deviate Sexual Intercourse upon

"Sammy," a fifteen year-old boy. A Craigslist ad seeking someone under twenty-five "who

likes to suck and get sucked" was placed on October 20, 2015 and Sergeant Smith initiated

contact. Defendant admitted posting an ad bearing the same identification number, although

he claimed he sought only a workout partner. Over the course of seven days Defendant 8 exchanged e-mails with Sergeant Smith, who represented himself as a fifteen year-old boy

who was worried that his mom would find out that he was communicating with the

Defendant instead of doing his homework. Defendant exchanged photos with the "boy" and

asked him for "Dick pies," pictures of his "hard D" and promised him a "BJ." Defendant

arranged a meeting and showed up at the appointed location and the designated time. It

was established that the computer that was discovered beneath Defendant's kitchen sink was

used to place a Craigslist ad on October 20, 2013 and to carry on the e-mail exchange. All of

the foregoing establish that Defendant intended to meet a fifteen year-old to perform and

receive oral sex and that he took a "substantial step" toward completing the offense of

Involuntary Deviate Sexual Intercourse by appearing at the Vo-Tech to meet his victim.~

e.g. Commonwealth v. Crabill, 926 A.2d 488, 492 (Pa. Super. 2007); Commonwealth y.

Jacob, 867 A.2d 614, 616 (Pa. Super. 2005); Commonwealth v. Zingarelli, 839 A.2d 1064

(Pa. Super. 2003).

Further, the verdict was in accord with the weight of the evidence. Sitting as the

factfinder the Court considered and weighed the evidence in light of the perceived

discrepancies suggested by the Defendant. In an effort to challenge the validity of the

circumstantial and forensic evidence that leads to the conclusion that Defendant placed the

ad that is depicted in C-1 and that the e-mail exchange set forth in Exhibit C-2 demonstrates

Defendant's intent to commit Involuntary Deviate Sexual Intercourse, Defendant offered an

expert report, authored by James P.Cassidy of SqrCom Technologies. See Exhibit D-12. Mr.

Cassidy provided two conclusions after review of the evidence provided: 1) that there may

have been chronological discrepancies In the e-mail exchanges that were provided to him

9 and 2) that he was unable to verify the Craigslist posting depicted in Exhibit C-1. Mr.

Cassidy's conclusions do not warrant a different conclusion. It is the Court's conclusion that

when read as a whole in any order the e-mailed messages demonstrate Defendant's settled

and fully formed intent to commit Involuntary Deviate Sexual Intercourse. Regarding Exhibit

C-1, Sergeant Smith testified that he took a "screen shot" of the ad that drew his attention

and Detective Walsh testified credibly that an original ad posted on October 20, 2013 was

modified on October 27, 2013. In the statement given following his arrest Defendant

admitted placing an ad on Craigslist and acknowledged the e-mail exchange. The claim that

he could not recall particular messages that included references to "Sammy's" age and

Defendant's more graphic requests demonstrates only that Defendant tried to distance

himself from the evidence that he thought was most incriminating. Finally, while the Court

considered Defendant's suggestion that he believed that "Sammy" was older than eighteen

because Craigslist warns that a person must be older that eighteen to respond to an ad,

when considered in light of all of the evidence, this assertion carried little or no weight.

Conflicts in the evidence and contradictions in the testimony of any witnesses are for the fact

finder to resolve. Commonwealth v. Thar~, 830 A.2d 519, 528 (Pa. 2003). The verdict is in accord with, rather than contrary to the evidence offered at trial and a new frii,.I is not

warranted.

Defendant's Motion to Exclude Evidence

In a pretrial motion Defendant sought to exclude evidence of the Craigslist ad that the

Commonwealth offered into evidence in Exhibit C-1. In support it was argued that because

this evidence could not be authenticated by Craigslist it was inadmissible pursuant to 10 Pennsylvania Rule of Evidence 901. Rule 901, Authenticating or Identifying Evidence,

provides, in pertinent part: "To satisfy the requirement of authenticating or identifying an

item of evidence, the proponent must produce evidence sufficient to support a finding that

the item is what the proponent claims it is." The rule provides a list of ways in which this

requirement may be satisfied by way of examples, including: Testimony of a Witness with

Knowledge. Testimony that an item is what it is claimed to be." Pa.R.E. 901(b)(1). Sergeant

Smith testified that Exhibit C-1 depicts the ad that he read on Craigslist on October 20,

2013 and that he captured in a screen shot.~ N.T. 1/15/15 pp. 19-21. The Exhibit was

properly authenticated through this testimony, based on the Sergeant's personal knowledge,

satisfying Rule 901's requirement that evidence support the conclusion that an item of

evidence "is what the proponent claims it is." In this case, the evidence being a screen shot

of what Sergeant Smith viewed on Craigslist.

Secondly, Defendant objected to this evidence on grounds of hearsay. An out-of-court

statement offered for the truth of the matter asserted is not admissible. See Pa.R.E. 801 &

802. However, whether a statement is hearsay depends on the purpose for which it is

offered. If it is offered not for its truth but because it was heard or relied on, "its probative

value is entirely unrelated to the statement's ability to convey truth and it is not hearsay.

Ohlbaum on the Pennsylvania Rules of Evidence, §801.08 (2015 Edition). In this case the ad

captured by Sergeant Smith was admissible because it was not considered as proof of the

statements contained therein but to show the Sergeant's subsequent course of conduct. See

§.:9. Commonwealth v. Weiss, 81 A.3d 767, 806 (Pa. 2013) (trooper's testimony that he

received an anonymous telephone call informing him that appellant was with victim the night

11 she disappeared was not offered for its truth but to explain that receipt of the call prompted

him to interview the appellant); Commonwealth v. Chmiel, 889 A.2d 501, 532 (Pa. 2005)

C'[i]t is well established that certain out-of-court statements offered to explain the course of

police conduct are admissible because they are offered not for the truth of the matters

asserted but rather to show the information upon which police acted."),

Commonwealth's Rule 404(b) Motion

Before trial the prosecutor gave notice, pursuant to Rule 404(b) of its intent to

introduce evidence from two witnesses regarding events that transpired in separate instances

between the Defendant and each witness. Because the parties agreed to waive their

respective right to a jury trial the Defendant's motion in limine to preclude this evidence was

heard by the Honorable Richard M. Cappelli. After a hearing Judge· Cappelli ruled that

testimony from these witnesses, Joshua Canto and Luke Hoesch, would be allowed for the

limited purpose of proving that Defendant's intent in communicating with "Sammy" was to

engage in sex with an underage boy. In making this ruling Judge Cappelli considered the fact

that in his statement Defendant claimed that he innocently arranged a meeting with

"Sammy," intending that the two would workout at his home. Judge Cappelli also considered

whether it was necessary for the Commonwealth to use this evidence to prove "intent" and

whether the probative value of this evidence outweighed its prejudicial impact. Finally, Judge

Cappelli noted that the risk of unfair prejudice would be diminished in this case where the

trial would not take place before a jury.

12 Joshua Canto and Luke Hoesch testified at trial. The trial Court however, concluded

that the testimony presented was irrelevant and unreliable and disregarded it in toto, thereby eliminating any possibility of unfair prejudice that might have resulted from the

testimony of these witnesses. N.T. 1/16/15 p. 28.

Joshua Cantor's testimony was brief. He testified that he knew the Defendant through

his own mother and that as a result of a conversation he had with the Defendant he was left

with a "vague feeling that [the Defendant] was trying to determine his sexual orientation."

Id. at 77. In response to the Court's question Mr. Cantor confirmed that the Defendant never

propositioned him. Id. Luke Hoesch testified that he met Defendant at an NA meeting when

he was about fifteen years old. Id.. at 79. He never had a "face to face" conversation with the

Defendant that was sexual in nature. Id.. He testified that in a text message Defendant

offered him $500.00 if he would allow the Defendant to perform oral sex on him. Mr. Heesch

could not remember when this exchange took place, he was impeached with a prior crimin

falsi, he admitted that he was taking drugs at the time and on cross examination it became

clear that he harbored an unsubstantiated belief that Defendant placed an ad soliciting sex

on Craigslist and included Hoesch's name and telephone number. Id.. at 78-90. The Court

concluded that Mr. Cantor's testimony had no probative value and was therefore irrelevant

and that Mr. Hoesch's testimony was completely unreliable and the parties of these findings

on the record before the trial concluded. See N.T. 1/16/15 p. 28.

Under these circumstances the admission of this evidence was harmless and a new

trial is not warranted. "Harmless error exists if the record demonstrates either: (1) the error

did not prejudice the defendant or the prejudice was de minimis, or (2) the erroneously 13 admitted evidence was merely cumulative of other untainted evidence whfch was

substantially similar to the erroneously admitted evidence; or (3) the properly admitted and

uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error

was so insignificant by comparison that the error could not have contributed to the verdict."

Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014). "An error is harmless if it

could not have contributed to the verdict."Commonwealth v. Wright, 599 Pa. 270, 961 A.2d

119, 143 (2008). Any concern of a prejudicial effect on the trier of fact does not predominate

in non-jury trials, because trial judges sitting as fact finders in criminal cases are presumed to

ignore prejudicial evidence in reaching a verdict. Commonwealth v. Irwin, 397 Pa. Super.

109, 579 A.2d 955, 957 (Pa. Super. 1990). In a non-jury trial, the judge is presumed to have

disregarded inadmissible hearsay testimony. See In re J.H., 737 A.2d 275 (Pa. Super. 1999), "It is of the essence of the judicial function to hear or view proffered evidence, whether

testimonial or in exhibit form, and to decide whether or not it should be admitted into

evidence, or if admitted initially or provisionally, should later be excluded or disregarded."

Commonwealth v. Dent, 837 A.2d 571 (Pa.Super 2003) quoting Commonwealth v. Green,

464 Pa. 557, 561, 347 A.2d 682, 683 (1975). In this case the fact that the Court disregarded

the objectionable testimony before reaching a verdict is a matter of record. The testimony

did not contribute to the verdict and Defendant suffered no prejudice.

14 In light of the foregoing it is respectfully submitted that judgment of sentence should

be affirmed.

BY THE COURT:

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