J-S49041-18

2018 PA Super 251

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* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL LEE SMYSER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1990 MDA 2017

Appeal from the Judgment of Sentence October 24, 2017

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

No(s): CP-21-CR-0000532-2016

BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 11, 2018

Appellant Daniel Lee Smyser appeals from the Judgment of Sentence 

entered in the Court of Common Pleas of Cumberland County on October 24, 

2017, following his convictions of twelve counts of Sexual Abuse of Children.1 

We affirm. 

The trial court set forth the relevant facts and procedural history herein 

as follows: 

On August 27, 2015, Trooper Lucas Collins responded to the 

[Appellant’s] home as a result of a 911 call originating from the 

[Appellant’s] address. Dispatchers had related hearing choking 

noises on the call. On the scene, Trooper Collins and EMS 

personnel were unable to get a response from inside the 

residence. After confirming with neighbors that [Appellant] was in 

the residence and that his vehicles were present, Trooper Collins 

determined there was a valid medical emergency and entered the 

residence. Therein, he discovered [Appellant] on the floor, alone, 

unresponsive in front of his computer. EMS provided medical 

attention and transported [Appellant] to a hospital.

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1 18 Pa.C.S.A. § 6312(d). 
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As he was securing the residence, Trooper Collins observed 

what appeared to be readily visible child pornography streaming 

on [Appellant’s] computer. There were pictures and an active chat 

room containing ongoing discussion of child pornography. Based 

on his observation, Trooper Collins secured the scene and 

contacted the investigative unit at the Carlisle State Police 

Barracks.

Thereafter, Trooper John Boardman arrived to investigate 

the possible child pornography. He observed the open chat room 

and noted the sexually explicit discussion of children. He also 

noted that pictures of apparent child pornography were being 

posted. Based on his observations he sought and obtained a 

search warrant for [Appellant’s] home and computer.

Subsequently, Trooper Michael J. Gownley, a certified 

forensic computer examiner, conducted a search of [Appellant’s]

computer. Testifying as an expert, Trooper Gownley related that 

he discovered a Windows user profile titled "Dan" that included 

two Yahoo Messenger accounts, titled "SMYS and "lilbitofur." 

Further, there was a user-created folder under the "Dan" user 

profile titled "Mine." In that file and in the Yahoo Messenger PhotoSharing Directory there were dozens of images of child 

pornography, 12 of which were known child victims verified by the 

database maintained by the National Center for Missing and 

Exploited Children. Trooper Gownley testified that it was his 

expert opinion that these images of child pornography were 

intentionally possessed by [Appellant].

After he regained consciousness, [Appellant] was 

confronted at the hospital about his computer activity and he 

denied all knowledge of the alleged crimes. At the nonjury trial, 

[Appellant] testified on his own behalf. He again denied accessing 

child pornography on his computer and opined that unidentified 

enemies from his past had broken into his home and planted the 

child pornography on his computer in an attempt to frame him for 

a crime. He also presented brief testimony from his daughter and 

sister who both noted the [Appellant’s] lack of facility with 

computers and technology and their doubt that he would be 

capable of accessing difficult to find online contraband.

Ultimately, the court, sitting as factfinder, found the 

Commonwealth's witnesses credible and [Appellant] not-credible 

and found him guilty of all charges.

Trial Court Opinion, filed 4/19/18, at 1-3. 
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On October 24, 2017, Appellant was sentenced to a prison term of one 

(1) year less a day to two (2) years less a day in the Cumberland County 

Prison along with a thirty-six (36) month term of probation to be served 

consecutively thereto. Appellant further was ordered to comply with the Tier 

I registration requirements of SORNA. 

On November 27, 2017, the trial court entered an Order granting

defense counsel’s Motion to Withdraw Appearance and appointing new counsel 

to represent Appellant. In an “abundance of caution” the trial court further 

provided the Public Defender with thirty (30) days from the date of that Order 

in which to file an appeal with this Court. Appellant filed his Notice of Appeal 

on December 27, 2017. The next day, the trial court ordered Appellant to file 

a concise statement of errors complained of on appeal within twenty-one (21) 

days pursuant to Pa.R.A.P. 1925(b)(1). On January 18, 2018, the trial court 

granted Appellant’s motion for enlargement of time and directed him to file a 

concise statement no later than seven (7) days following the receipt of the 

requested transcripts. Appellant filed his Concise Statement of the Errors 

Complained of on Appeal on February 2, 2018, wherein he raised the following, 

single issue:

1. [Appellant] believes, and therefore avers, that the 

Commonwealth failed to present sufficient evidence for the 

fact-finder to be convinced beyond a reasonable doubt of 

[Appellant’s] guilt. 
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 In his brief, Appellant presents the following Statement of the 

Questions Involved:

I. Did the trial court err in determining that the 

Commonwealth presented sufficient evidence to sustain the 

conviction for twelve (12) counts of sexual abuse of 

children?

Brief for Appellant at 6 (unnecessary capitalization omitted). 

The relevant subsection of Sexual Abuse of Children under which 

Appellant’s twelve charges and subsequent convictions arose is entitled “Child 

pornography” and reads as follows: 

d) Child pornography.--Any person who intentionally views or 

knowingly possesses or controls any book, magazine, pamphlet, 

slide, photograph, film, videotape, computer depiction or other 

material depicting a child under the age of 18 years engaging in a 

prohibited sexual act or in the simulation of such act commits an 

offense.

18 Pa.C.S.A. § 6312(d).

Whether the evidence was sufficient to support the conviction presents

a matter of law; our standard of review is de novo and our scope of review is 

plenary. Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.Super. 2016) 

(citation omitted), appeal denied, 167 A.3d 698 (Pa. 2017). In conducting 

our inquiry, we

examine whether the evidence admitted at trial, and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, support the 

jury's finding of all the elements of the offense beyond a 

reasonable doubt. The Commonwealth may sustain its burden by 

means of wholly circumstantial evidence.
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Commonwealth v. Doughty, 633 Pa. 539, 550-51, 126 A.3d 951, 958 

(2015).

“In addition to proving the statutory elements of the crimes charged 

beyond a reasonable doubt, the Commonwealth must also establish the 

identity of the defendant as the perpetrator of the crimes.” Commonwealth 

v. Brooks, 7 A.3d 852, 857 (Pa.Super. 2010), appeal denied, 21 A.3d 1189 

(Pa. 2011). “Evidence of identification need not be positive and certain to 

sustain a conviction.” Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super. 

2011) (en banc) (citation omitted), appeal denied, 54 A.3d 348 (Pa. 2012). 

As our Supreme Court has stated “any indefiniteness and uncertainty in the 

identification testimony goes to its weight. Direct evidence of identity is, of 

course, not necessary and a defendant may be convicted solely on 

circumstantial evidence.” Commonwealth v. Hickman, 453 Pa. 427, 430, 

309 A.2d 564, 566 (1973) (citations omitted).

As a preliminary matter, it should be noted that “when challenging the 

sufficiency of the evidence on appeal, the ‘[a]ppellant's [court ordered Pa. 

R.A.P.1925(b) concise] statement must specify the element or elements upon 

which the evidence was insufficient’ in order to preserve the issue for appeal.” 

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009) appeal 

denied, 3 A.3d 670 (Pa. 2010). If the appellant fails to conform to the 

specificity requirement, the claim is waived. Id. See also Commonwealth
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v. Williams, 959 A.2d 1252 (Pa.Super. 2008) (quoting Commonwealth v. 

Flores, 921 A.2d 517, 522–23 (Pa.Super. 2007)). 

While the trial court did address the topic of sufficiency in its Rule 

1925(a) Opinion, we have held that this is “of no moment to our analysis 

because we apply Pa.R.A.P.1925(b) in a predictable, uniform fashion, not in a 

selective manner dependent on an appellee's argument or a trial court's choice 

to address an unpreserved claim.” Williams, 959 A.2d. at 1257 (quoting 

Flores 921 A.2d at 522–23). In light of Appellant’s boilerplate concise 

statement, we could find this issue waived; however, since Appellant was 

convicted of twelve counts of 18 Pa.C.S.A. § 6312(d) and his sufficiency 

challenge presents a question of law that the trial court readily apprehended, 

we shall address it. See Commonwealth v. Laboy, 594 Pa. 411, 936 A.2d 

1058 (2007) (applying less strict waiver approach where case was not 

complex and trial court addressed claim in substantial detail).

Appellant avers the evidence was insufficient to sustain his convictions 

because it failed to establish that he intentionally and knowingly possessed or 

controlled child pornography. Brief for Appellant at 13. Appellant stresses 

that the evidence “only included the images that were saved to the computer 

seized from [Appellant’s] residence and an allegation that a scrolling chatroom 

was active at the time Trooper Collins responded to the evidence.” Id. at 15. 

Appellant points to the testimony of Appellant’s daughter Chynna, that she, 

her fiancé and her sister used the computer on several occasions while 
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Appellant was logged on and her representation that her father lacks the 

knowledge and skills necessary to upload or download files on a computer and 

to utilize a file-sharing program. Id. 

Appellant further states the Commonwealth failed to establish the dates 

and times Appellant viewed the images. Appellant reasons that the images 

introduced at trial in support of the guilty verdicts were last viewed prior to 

August 27, 2015, and, in light of his testimony that he worked Monday through 

Friday between 4:30 a.m. and 6:00 p.m., such evidence was insufficient to 

prove that he intentionally and knowingly possessed or controlled the child 

pornography. Id. at 16. 

Essentially, Appellant's contention is that the trial court sitting as the 

finder of fact should have credited the testimony of his daughter and him 

rather than that of the investigating officers. An argument that the finder of 

fact should have credited one witness’s testimony over that of another goes

to the weight of the evidence, not the sufficiency of the evidence. 

Commonwealth v. Gibbs, 981 A.2d 274, 281–82 (2009)(citing 

Commonwealth v. W.H.M., 932 A.2d 155, 160 (Pa.Super. 2007) (claim that 

the jury should have believed Appellant's version of the event rather than the 

victim’s goes to the weight, not the sufficiency of the evidence)); 

Commonwealth v. Wilson, 825 A.2d 710, 713–14 (Pa.Super. 2003) (a 

review of the sufficiency of the evidence does not include an assessment of 

the credibility of testimony); Commonwealth v. Gaskins, 692 A.2d 224, 227 
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(Pa.Super. 1997) (credibility determinations are made by the finder of fact 

and challenges to those determinations go to the weight, not the sufficiency

of the evidence). Thus, Appellant's asserted sufficiency of the evidence claim 

is, in fact, a weight of the evidence claim; yet, Appellant has not challenged 

the weight of the evidence on appeal. As a result, he has waived any challenge 

to the weight of the evidence for failure to include it in his Pa.R.A.P. 1925(b) 

statement. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) 

(“Any issues not raised in a 1925(b) statement will be deemed waived.”); see 

also Pa.R.A.P. 1925(b)(4)(vii). To the extent that Appellant properly has 

raised a sufficiency claim, we find it meritless.

The record reveals Appellant resided alone and was the only one present 

when Trooper Collins arrived at his locked home on August 27, 2015, and 

found him lying on the floor in front of his computer in his bedroom dressed 

only in his undergarments. N.T. Trial, 6/30/17, at 6-7, 11. The computer was 

connected to several, active open chat rooms and displayed scrolling images 

of child pornography. Id. at 8, 20-21. Following the seizure and forensic 

analysis of Appellant’s computer, police discovered additional images of child 

pornography which included twelve images of known child victims. Id. at 52-

53. 

In its Rule 1925(a) Opinion, the trial court explained the twelve pictures 

of the victims were “sexually explicit depictions of children.” Trial Court 

Opinion, filed 4/19/18, at 3. The court found Appellant’s claims of 
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technological incompetence were belied by expert testimony and the forensic 

evidence at trial. While the trial court stated it did not doubt the truthfulness 

of Appellant’s daughter and sister, it explained it discounted their testimony 

“on the basis of their simple inability to know of [Appellant’s] secret behavior.” 

Id. at 4. The [c]ourt concluded that: 

[Appellant’s] theory of a mysterious enemy setting him up is 

ludicrous. The discovery of [Appellant’s] possession of child 

pornography was triggered by his suffering a sudden asthmatic 

episode. It would take a remarkably patient vengeance-seeker to 

plant dozens of images of child pornography on his enemy’s 

computer and then simply wait for a random medical emergency 

for police to discover the contraband.

Id. 

Our review of the record supports the trial court’s conclusions. It was 

within the province of the trial court, as factfinder, to determine that the

evidence presented was sufficient to establish Appellant intentionally viewed 

and/or possessed the pornographic images found on his computer. 

Appellant's challenge, therefore, fails.

 Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/11/2018