Commonwealth v. Smith

47 A.3d 862, 2012 Pa. Super. 126, 2012 WL 2308253, 2012 Pa. Super. LEXIS 1053
CourtSuperior Court of Pennsylvania
DecidedJune 19, 2012
StatusPublished
Cited by29 cases

This text of 47 A.3d 862 (Commonwealth v. Smith) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Smith, 47 A.3d 862, 2012 Pa. Super. 126, 2012 WL 2308253, 2012 Pa. Super. LEXIS 1053 (Pa. Ct. App. 2012).

Opinion

OPINION BY WECHT, J.:

Andrew Smith [“Appellant”] appeals from the January 28, 2011 judgments of sentence imposed after a jury found him guilty of two counts of rape of a child under thirteen,1 two counts of unlawful [864]*864contact with a minor,2 two counts of corruption of the morals of a minor,3 and one count of aggravated indecent assault.4 We affirm.

The trial court aptly summarized the factual history as follows:

J.D.R. (a minor) lived with her mother in Florida during the school year and with her father in Philadelphia during the summer months. During the summer of 2004, J.D.R. first met [Appellant] when their karate classes conducted a demonstration at a fundraiser benefit. Their relationship progressed over the next year, and by the . summer of 2005, twelve year-old J.D.R. began considering [Appellant] her boyfriend. At approximately 1 a.m. one summer evening in 2005, J.D.R. spoke on the phone with Appellant. During this conversation, J.D.R. told [Appellant] she was visiting her grandmother’s house in Southwest Philadelphia and spending the night there. Appellant asked J.D.R. if he could come over. At first, J.D.R. said “no,” but after [Appellant] persisted, she agreed.
When he first arrived, Appellant and J.D.R. talked and kissed. Later, [Appellant] tried to unbutton J.D.R.’s pants, but she initially said “no.” [Appellant] told J.D.R., “I want to do this because I love you, and I want to show you how I love you.” J.D.R. continued to say “no” and Appellant backed off. However, later on, [Appellant] attempted to unbutton J.D.R.’s pants again. When J.D.R. objected, [Appellant] became angry and began to leave. When Appellant got up to leave, J.D.R. said, “Okay, I’ll do it. Okay.” [Appellant] then penetrated J.D.R.’s vagina with his fingers and then his penis. During penetration, J.D.R. asked [Appellant] to stop because she was in severe pain, but he refused. Subsequent to her experience, J.D.R. never revealed she had sex with [Appellant] until approximately one-and-a half years later.
Approximately two months later, [Appellant] had sex with G.O. Like J.D.R., G.O. was 12 years old. [G.O.] first met Appellant at karate class when she was six years old and considered him a family friend for years. On the morning of September 27, 2005, G.O. was at home sleeping when she heard a knock on the door. G.O. got up, opened the door, and saw [Appellant]. Appellant told G.O. that he came to say goodbye because he was leaving Philadelphia. Appellant then asked G.O. if he could use the bathroom and G.O. said yes. [Appellant] proceeded upstairs to the second floor bathroom.
After a few minutes, G.O. thought [Appellant] was taking too long to return so she called up to him. [Appellant] did not answer so G.O., went upstairs to find him. G.O. found [Appellant] in her bedroom. When questioned, Appellant said he was just looking at her bedroom. Appellant then told G.O. to give him a hug, but G.O. refused and said “let’s go downstairs.” Instead, [Appellant] grabbed G.O., hugged her, and said he wanted G.O. to remember him. Still holding G.O. in an embrace, Appellant positioned G.O. between his legs and lowered her onto the bed. [Appellant] put G.O. on her back while he kept his forearms around her. [Appellant] told G.O. that he would miss her and wanted to give her “stuff’ to remember him by. [Appellant] kissed G.O.’s neck and pulled her pajama pants down. G.O. [865]*865told Appellant to stop, but he ignored her. [Appellant] penetrated G.O.’s vagina with his penis as she lay crying. During the penetration, G.O.’s cell phone rang downstairs. [Appellant] “popped up” from the bed. G.O. then pushed [Appellant] off her, went downstairs, and answered her cell phone. While she was on the phone, [Appellant] left the house. G.O. did not immediately report the rape because she was scared and did not trust anyone. Approximately one year later, G.O. told her mother what had happened because she heard [Appellant] was returning to Philadelphia. G.O.’s mother took her to the hospital and filed a police report.

Trial Court Opinion [“T.C.O.”], 10/31/11, 2-4 (citations to notes of testimony and footnotes omitted).

At his jury trial, Appellant denied raping the victims. Notes of Testimony [“N.T.”], 7/28/10, at 132-34. The jury rejected Appellant’s testimony, finding him guilty of all charges. On January 28, 2011, Appellant was sentenced to seven to fourteen years of incarceration for the rape of G.O., to run concurrently with the prison terms imposed for all of the other crimes, including those committed against J.D.R. This timely appeal followed.

Appellant raises two issues for our review:

1. Did not the court err in precluding the defense from using the contents of an email/instant message [Exhibit D-8] sent by one of the two complaining witnesses, J.D.R., to establish that the witness had in fact recanted, as the evidence at trial sufficiently authenticated the document and the preclusion of use of its contents denied [A]ppellant the right to present a defense and the right to confront adverse witnesses, and to prove an inconsistent statement, as guaranteed by the United States and Pennsylvania Constitutions?
2. Did not the court err in approving consolidation of the two cases for trial in one proceeding, as the evidence failed to establish a common plan, there were significant differences between the two alleged courses of conduct, evidence of each event would not have been admissible at trial for the other, and the evidence of each was therefore only proof of propensity?

Appellant’s Brief at 5.

Appellant challenges the trial court’s ruling refusing to admit certain allegedly exculpatory electronic messages. Evidentiary rulings lie within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. In re F.P., 878 A.2d 91, 93 (Pa.Super.2005).

Before evidence may be admitted, it must be authenticated. Id. at 93-4. Pennsylvania Rule of Evidence 901 governs the authentication of evidence. Rule 901 states, “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Pa.R.E. 901(a).

In Appellant’s view, the trial court erred in finding that the instant message5 was not properly authenticated. Appellant asserts that the instant message should have been admitted for impeachment purposes as a prior inconsistent statement. However, Appellant failed to raise this argument before the trial court. Notes of [866]*866Testimony [“N.T.”], 06/28/10, at 85-91. Accordingly, even if Appellant had met the authentication threshold, Appellant would not be entitled to any relief because his argument is waived.

The instant message purportedly was from J.D.R. In the message, J.D.R. (or someone using her account) recanted her allegations against Appellant. At trial, J.D.R. denied writing the instant message, explaining that multiple people had access to her instant messenger account. N.T. at 52, 53-4. The Commonwealth objected to the admission of the message, asserting that it was inadmissible hearsay. N.T. at 86-87.

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Bluebook (online)
47 A.3d 862, 2012 Pa. Super. 126, 2012 WL 2308253, 2012 Pa. Super. LEXIS 1053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-smith-pasuperct-2012.