J-A21015-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEITH OWEN SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1459 EDA 2022

Appeal from the Judgment of Sentence Entered January 5, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0000052-2020

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 20, 2023

Appellant Keith Owen Smith appeals from the judgment of sentence 

imposed following his convictions for corruption of minors, indecent assault of 

a person less than 13 years of age, unlawful contact with a minor, and 

indecent assault by forcible compulsion.1 Appellant challenges the sufficiency 

and weight of the evidence. We affirm.

The trial court summarized the relevant factual and procedural history

of this matter as follows:

[Appellant] proceeded to a waiver trial before [the trial court] on 

January 5, 2022. Complainant N.B. testified that she lived with 

her grandmother, [M.B.], and [M.B.’s] husband, [Appellant], in a 

house across the street from N.B.’s elementary school, and that 

[Appellant] sometimes watched N.B. alone. On one evening when 

N.B. was 10 to 12 years old and home alone with [Appellant, 

Appellant] asked N.B. to get on top of him while both were 

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1 18 Pa.C.S. §§ 6301(a)(1)(i); 3126(a)(7); 6318(a)(1), and 3126(a)(2), 

respectively.
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clothed, and [Appellant] then moved N.B.’s hips around so that 

their genitals rubbed together in motions that N.B. described as 

“like full sexual movement, but just with clothes on.” Afterward, 

N.B. saw [Appellant] go into the bedroom’s en suite bathroom, 

take his clothes off, and shower. She could see a white discharge 

in [Appellant’s] clothes on the bathroom floor. N.B. did not tell 

anyone what happened until she was 15 years old, when she 

disclosed the incident to her school guidance counselor, Tahar 

Sutton, then to M.B., and then to law enforcement. [The trial 

court] deemed N.B.’s account to be credible, and [Appellant] was 

convicted of corruption of minors, indecent assault of a person 

less than 13 years old, unlawful contact with a minor, and indecent 

assault by forcible compulsion.

[Appellant] was sentenced on January 5, 2022, to an aggregate 

sentence of 1.5 to 3 years of incarceration, followed by 5 years of 

reporting probation, which broke down as follows: two concurrent 

sentences of 1.5 to 3 years of incarceration for unlawful contact 

with a minor and indecent assault of a person less than 13 years 

old, followed by 5 years of reporting probation for corruption of 

minors, and no further penalty on indecent assault by forcible 

compulsion because it merged with the other indecent assault 

offense. [Appellant’s] lead offense of unlawful contact with a 

minor carried an offense gravity score of 6, and [Appellant’s] prior 

record score was 4, which generated a standard sentencing range 

of 15 months to 21 months of incarceration, plus or minus 6 

months. Thus, [Appellant’s] sentence is in the middle of the 

standard sentence range.

Trial Ct. Ltr., 1/13/23, at 1-2 (citations omitted).

Prior to sentencing, Appellant filed a motion for extraordinary relief, 

accompanied by a memorandum of law in support of his motion, wherein he 

alleged that certain evidence was not presented to the trial court during trial. 

See Appellant’s Mem. of Law in Supp. of Mot. for Extraordinary Relief and Mot.

for New Trial, 1/4/22. The trial court denied Appellant’s motion during the 

sentencing hearing. See N.T. Sentencing Hr’g, 1/5/22, at 18. Appellant
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timely filed post-sentence motions on January 18, 2022.2 In his post-sentence 

motions, Appellant, challenged the sufficiency and weight of the evidence. On 

May 18, 2022, the trial court denied Appellant’s post-sentence motions by 

operation of law.

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 

1925(b) statement. In lieu of a Rule 1925(a) opinion,3the trial court issued 

a letter to this Court addressing Appellant’s claims.

Appellant raises the following issues, which we have reordered as 

follows:

1. Was not the evidence legally insufficient to establish indecent 

assault of a person less than 13 years of age where the trial 

judge found that the evidence established that the 

complainant, as she testified, could have been anywhere from 

10 to 13 years old at the time of the assault?

2. Did not the lower court err by improperly buttressing the 

complainant’s testimony and abuse its discretion by not 

granting [Appellant’s] post-sentence motion for a new trial 

because the verdict was against the weight of the evidence?

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2 The tenth day following the imposition of the judgment of sentence fell on a 

Saturday, January 15, 2022. Tuesday, January 18, 2022 represented the next 

business day in which the courts were open, as Monday, January 17, 2022 

was Martin Luther King, Jr., Day. Accordingly, Appellant’s post-sentence 

motions were timely filed. See 1 Pa.C.S. § 1908.

3 We note that the Honorable Kai N. Scott presided over Appellant’s waiver 

trial and imposed the instant judgment of sentence. While this appeal was 

pending, Judge Scott resigned from the Court of Common Pleas of Philadelphia 

County following her appointment to the United States District Court for the 

Eastern District of Pennsylvania. Prior to her resignation from the Philadelphia 

County Court of Common Pleas, Judge Scott sent a letter to this Court 

addressing the claims raised in Appellant’s Rule 1925(b) statement.
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Appellant’s Brief at 3 (some formatting altered).

Sufficiency of the Evidence

In his first claim, Appellant challenges the sufficiency of the evidence 

supporting his conviction for indecent assault of a person less than thirteen 

years of age. Id. at 17. Specifically, Appellant argues that the 

Commonwealth failed to establish beyond a reasonable doubt that N.B. was 

less than thirteen years of age at the time that the indecent assault occurred. 

Id. at 17-20. In support, Appellant contends that N.B. provided uncertain 

testimony concerning her age at the time of the incident, which the trial court 

acknowledged when rendering its verdict. Id. at 17-18. Therefore, Appellant 

concludes that there was insufficient evidence to establish N.B.’s age and this 

Court should vacate Appellant’s conviction for indecent assault. Id. at 20.

The Commonwealth argues that Appellant waived this issue, as he has 

actually raised a weight claim. Commonwealth’s Brief at 7. Specifically, the 

Commonwealth contends that Appellant “assails the weight that the [trial 

court] placed on conflicting evidence of N.B.’s age.” Id. Based on our review 

of the arguments of both parties, we find that Appellant has framed this issue 

in a manner that directs this Court to review this issue under the sufficiency 

of the evidence standard of review, as Appellant’s credibility argument directly 

addresses the element of N.B.’s age that must be proven by the 

Commonwealth beyond a reasonable doubt. 

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

of review is as follows: 
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A challenge to the sufficiency of the evidence is a question of law, 

subject to plenary review. When reviewing a sufficiency of the 

evidence claim, the appellate court must review all of the evidence 

and all reasonable inferences drawn therefrom in the light most 

favorable to the Commonwealth, as the verdict winner. Evidence 

will be deemed to support the verdict when it establishes each 

element of the crime charged and the commission thereof by the 

accused, beyond a reasonable doubt. The Commonwealth need 

not preclude every possibility of innocence or establish the 

defendant's guilt to a mathematical certainty. Finally, the trier of 

fact while passing upon the credibility of witnesses and the weight 

of the evidence produced, is free to believe all, part or none of the 

evidence.

Commonwealth v. Nellom, 234 A.3d 695, 700 (Pa. Super. 2020) (citations 

omitted). 

“It is axiomatic that the Commonwealth must prove each element of 

[the] crime [charged] beyond a reasonable doubt.” Commonwealth v. 

Walzack, 360 A.2d 914, 917 (Pa. 1976) (citations omitted). “The 

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. Miklos, 159 

A.3d 962, 967 (Pa. Super. 2017) (citation omitted). This burden, however, 

does not require the Commonwealth to preclude every possibility of 

innocence. Commonwealth v. Steele, 234 A.3d 840, 845 (Pa. Super. 2020). 

“Any doubt raised as to the accused’s guilt is to be resolved by the factfinder.” 

Commonwealth v. Akhmedov, 216 A.3d 307, 322 (Pa. Super. 2019) (en 

banc) (citation omitted and formatting altered). It is the sole province of the 

factfinder to assess credibility, and the factfinder is free to believe all, some, 

or none of the evidence presented. Commonwealth v. Fortson, 165 A.3d 
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10, 15 (Pa. Super. 2017). This Court “will not disturb the verdict unless the 

evidence is so weak and inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances.” Akhmedov, 216 A.3d 

at 322 (citation omitted and formatting altered). 

The Crimes Code defines indecent assault of a person less than thirteen 

years of age as when a “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 thirteen years of age. 18 

Pa.C.S. § 3126(a)(7).

In the instant case,4the trial court noted the following:

N.B. did state early in her testimony that the incident with 

[Appellant] occurred when she was “between the age of 10 and 

13.” [N.T. Trial, 9/13/21,] at 15-16. However, in reviewing the 

record, the [trial court] has concluded that N.B. was no older than 

11 years old, if the [trial court] is permitted to take judicial notice 

of regular school pacing, and to infer that N.B. went through 

school at a regular pace.[FN4] N.B. testified that she moved to her 

grandmother’s house “in the middle of 2nd grade” when she was 

about 7 years old. See id. at 13. This was consistent with 

[M.B.]’s testimony that N.B. moved in when N.B. was “probably 

about 7.” Id. at 50. N.B. moved to her grandmother’s house 

because it was across the street from N.B.’s elementary school, 

which she attended from second grade to fifth grade. Id. at 14-

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In its letter to this Court, the trial court explained that it concluded that N.B. 

was no older than 11 years old at the time of the incident based on what the 

trial court referred to as “regular school pacing,” which would have placed 

N.B. in seventh grade at the time she turned thirteen years of age. Trial Ct. 

Ltr. at 3 n.4. 
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15, 49. N.B. stated that on the day after the incident, she 

attended elementary school at the school across the street. See 

id. at 19. Moreover, N.B. testified that the elementary school only 

went up to fifth grade. See id. at 23. N.B. claimed that she 

moved out of her grandmother’s house in the beginning or middle 

of sixth grade, see id. at 15, which the [trial court] calculates as 

the 2015 to 2016 school year. This was consistent with part of 

[M.B.’s] testimony, which was that the family moved from that 

house in 2015. See id. at 52. According to this math, even if 

N.B. incorrectly testified that she went to elementary school

across the street the day after the incident, if she moved out of 

that house in the beginning or middle of sixth grade or in 2015, 

N.B. was 11 or 12 years old (her 12th birthday was on December 

12, 2015). Thus, there is sufficient evidence that [Appellant] 

committed indecent assault against a person less than 13 years 

old.

[FN4] This is not always a valid inference to make. However, 

in this particular case, the [trial court] found that there were 

enough data points to make that inference: N.B. testified 

that at the time of her testimony on September 13, 2021, 

she was 17 years old and a senior in high school, and that 

she was born on December 12, 2003. See [id.] at 12-13. 

High school seniors in Philadelphia who attend kindergarten 

through 12th grade at a regular pace graduate when they 

are 17 or 18 years old. N.B. testified that she was “in the 

middle of second grade” and around 7 years old when she 

moved into her grandmother’s house, which is consistent 

with regular school pacing. See id. at 13-14. No evidence 

was presented that N.B. was held back in school sometime 

between second grade and sixth grade, and then later 

returned to a regularly paced school schedule. Thus, the 

[trial court] inferred that N.B. was ages 7 to 8 in second 

grade, 8 to 9 in third grade, 9 to 10 in fourth grade, 10-11 

in fifth grade, 11 to 12 in sixth grade, and 12 to 13 in 

seventh grade.

Trial Ct. Ltr. at 3-4 (some footnotes omitted).

Following our review of the record and viewing the evidence in the light 

most favorable to the Commonwealth as verdict winner, we conclude that the 

Commonwealth presented sufficient evidence to establish that N.B. was under 
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thirteen years of age at the time of the incident with Appellant. See Nellom, 

234 A.3d at 700. As we have noted, the factfinder is free to believe all, or 

part, or none of the evidence presented. See id. Here, although the trial 

court expressed some uncertainty regarding the evidence presented 

concerning N.B.’s age at the time of the incident,5 on this record, it was 

reasonable for the trial court to infer that N.B. was under 13 years old when 

viewing the trial evidence in the light most favorable to the Commonwealth. 

See Steele, 234 A.3d at 845; Nellom, 234 A.3d at 700; Fortson, 165 A.3d 

at 15; Miklos, 159 A.3d at 967. The trial court, as the factfinder in a bench 

trial, was tasked with resolving doubt as to Appellant’s guilt, and we conclude

that the Commonwealth’s evidence was not so weak and inconclusive that, as 

a matter of law, no probability of fact could be drawn from the combined 

circumstances. See Akhmedov, 216 A.3d at 322. For these reasons, 

Appellant is not entitled to relief.

Weight of the Evidence

In his remaining claim, Appellant contends that the trial court’s verdict 

was against the weight of the evidence. Appellant’s Brief at 12-17.

Specifically, Appellant argues that N.B.’s testimony “was inconsistent in critical 

places, both inconsistent with itself and inconsistent with her prior testimony.” 

Id. at 12. Additionally, Appellant claims that the trial court improperly 

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5 See N.T. Trial at 71; see also Trial Ct. Ltr. at 3-4. 
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bolstered N.B.’s testimony “by concluding that [N.B.’s] trial testimony must 

have been consistent with her testimony at the preliminary hearing.” Id. 

The Commonwealth argues that Appellant waived his weight-of-theevidence claim because he failed to raise it with sufficient specificity in his

post-sentence motion pursuant to Pa.R.Crim.P. 607(A). Commonwealth’s 

Brief at 5. 

When reviewing the denial of a motion for a new trial based on weight 

of the evidence, we are governed by the following standard of review:

A motion for a new trial based on a claim 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. 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.

An appellate court’s standard of review when presented with a 

weight of the evidence claim is distinct from the standard of review 

applied by the trial court. Appellate review of a weight claim is a 

review of the exercise of discretion, not of the underlying question 

of whether the verdict is against the weight of the evidence.

Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017) 

(citations omitted). As this Court has repeatedly stated, 

The weight of the evidence is exclusively for the finder of fact, who 

is free to believe all, none, or some of the evidence and to 

determine the credibility of the witnesses. Resolving contradictory

testimony and questions of credibility are matters for the finder of 

fact. It is well-settled that we cannot substitute our judgment for 

that of the trier of fact.

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Because the trial judge has had the opportunity to hear and see 

the evidence presented, an appellate court will give the gravest 

consideration to the findings and reasons advanced by the trial 

judge when reviewing a trial court’s determination that the verdict 

is against the weight of the evidence. One of the least assailable 

reasons for granting or denying a new trial is the lower court’s 

conviction that the verdict was or was not against the weight of 

the evidence and that a new trial should be granted in the interest 

of justice.

Furthermore, in order for a defendant to prevail on a challenge to 

the weight of the evidence, the evidence must be so tenuous, 

vague and uncertain that the verdict shocks the conscience of the 

court.

Commonwealth v. Spence, 290 A.3d 301, 311 (Pa. Super. 2023) (citations 

omitted and formatting altered).

Before we can reach the merits of Appellant’s weight-of-the-evidence 

claim, we must first determine whether he properly preserved the issue for 

our review. The Pennsylvania Rules of Criminal Procedure require that a 

challenge to the weight of the evidence must be presented to the trial court 

in the form of either an oral or written motion prior to sentencing or in a postsentence motion. Pa.R.Crim.P. 607(A). An appellant, however, cannot raise 

an alternate weight of the evidence theory for the first time on appeal. 

Commonwealth v. Jones, 191 A.3d 830, 835 (Pa. Super. 2018). Any new 

legal theories raised for the first time on appeal are waived on appeal. Id.

In the instant case, the record reflects that Appellant timely filed a postsentence motion. Therein, Appellant argued that the trial court’s verdict 

“shocks the conscience because no credible evidence was presented, and the 

witnesses’ testimony was vague, not subject to verification by any extrinsic 
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evidence.” Appellant’s Post-Sentence Mot., 1/18/22, at 2-3 (unpaginated). 

On appeal, Appellant raises the following argument:

[The complaining] witness was uncertain as to when the incident 

occurred—she could have been anywhere from 10 to 13 years of 

age. There was no corroborative evidence. There was no physical 

evidence. There was no prompt compliant witness. The testimony 

of N.B. was inconsistent in critical places, both inconsistent with 

itself and inconsistent with her prior testimony. In finding N.B. 

credible, the [trial] court improperly bolstered her testimony by 

concluding her trial testimony must have been consistent with her 

testimony at the preliminary hearing.

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In evaluating the weight of the evidence claim, the [trial] court 

revealed that [its] verdict was based upon the improper bolstering 

of [N.B.’s] testimony. [N.B.’s] testimony was vague and 

uncertain. Even when the alleged assault occurred was unclear. 

Appellant’s Brief at 12, 16. Based on our review of the record, we find that 

Appellant has not raised a new legal theory on appeal, and we shall proceed 

to review Appellant’s claim on the merits. See Jones, 191 A.3d at 835.

Instantly, in rejecting Appellant’s weight-of-the-evidence claim, the trial 

court explained:

The [trial court] emphasized that it is particularly difficult to 

litigate cases involving sexual offenses that involve delayed 

disclosures, and that there was a relatively broad time period in 

which this particular incident occurred. The [trial court] also noted 

that there were some minor inconsistencies between N.B.’s

preliminary hearing testimony and her trial testimony regarding 

when the assault could have happened or how long it happened. 

However, the [trial court] concluded that because it did not hear 

much additional impeachment about the preliminary hearing, 

N.B.’s testimony was consistent overall. The [trial court] also 

noted that although the [trial court] did not hear what N.B. 

specifically disclosed to Mr. Sutton and her grandmother, there 

was no impeachment about the circumstances of those 
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disclosures, either. Additionally, the [trial court] reasoned that 

N.B. did not have any motivation for fabrication or bias in this case 

and “did not pick up any sort of negative feeling [that N.B. even 

held] toward [Appellant], even though this is alleged to have 

happened when she was 10 or 11.” Finally, the [trial court] noted 

that although there was no physical evidence that the crimes 

occurred, a complainant’s credible testimony alone is enough to 

convict a defendant. Therefore, the [trial court] carefully weighed 

N.B.’s account and concluded that N.B. had credibly and truthfully 

testified that [Appellant] committed these crimes against her, and 

the limited impeachment through her inconsistent statements and 

lack of corroborative evidence did not provide reasonable doubt in 

this case. This verdict was not against the weight of the evidence.

Trial Ct. Ltr. at 2-3 (citations omitted; some brackets in original).

Based on our review of the record, we discern no abuse of discretion by

the trial court in denying Appellant’s weight claim. See Windslowe, 158 A.3d 

at 712. Indeed, the trial court explicitly stated that despite some “minor 

inconsistencies” in N.B.’s trial testimony when compared to her testimony at 

the preliminary hearing, N.B. testified credibly at trial. We note that credibility 

determinations are exclusively within the province of the factfinder, and we 

cannot substitute our judgment for the factfinder. See Spence, 290 A.3d at 

311. Therefore, Appellant is not entitled to relief. Accordingly, we affirm.

Judgment of sentence affirmed. Jurisdiction relinquished.

Date: 11/20/2023