Com. v. Sherlock, K. ( 2014 )

J-S48045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN J. SHERLOCK,
Appellant No. 2069 MDA 2013
Appeal from the Judgment of Sentence June 4, 2013
in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0000246-2012
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN J. SHERLOCK,
Appellant No. 2070 MDA 2013
Appeal from the Judgment of Sentence June 4, 2013
in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0001752-2012
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 03, 2014
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S48045-14
Appellant, Kevin J. Sherlock, appeals from the judgment of sentence
entered on June 4, 2013, following his jury conviction of two counts of
recklessly endangering another person (REAP)1 and one count of
endangering the welfare of children (EWOC).2 For the reasons discussed
below, we affirm.
On January 24, 2012, the police arrested Appellant and charged him
with REAP, simple assault,3 and harassment.4 The charges arose from a
January 23, 2012 incident involving Appellant and his former girlfriend. On
February 1, 2012, the magisterial district judge bound the charges over to
the Court of Common Pleas. On September 20, 2012, the police arrested
Appellant on new charges of EWOC, simple assault,5 and REAP, arising from
the same incident. Ultimately, the two informations were consolidated for
trial. (See Notice of Consolidation, 11/08/12).
On November 30, 2012, Appellant filed a motion for appointment of a
special prosecutor or, in the alternative, for re-assignment of the prosecutor.
Appellant argued that it was improper to allow Assistant District Attorney
____________________________________________
1
18 Pa.C.S.A. § 2705.
2
18 Pa.C.S.A. § 4304(A)(1).
3
18 Pa.C.S.A. § 2701(a)(3).
4
18 Pa.C.S.A. § 2709(a)(1).
5
18 Pa.C.S.A. § 2701(a)(1).
-2-
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Sean P. McGraw to prosecute the matter because, in 2004, when the Centre
rney McGraw
represented Appellant in a burglary case. (See N.T. Motion Hearing,
12/03/12, at 3-4). The trial court denied the motion on December 3, 2012.
On January 21, 2013, the Commonwealth filed motions in limine to
tions and adult conviction of crimen falsi,
namely fourteen juvenile adjudications for theft from a motor vehicle and
certain adult convictions.6 (See in Limine,
1/21/13, at 2-3). The Commonwealth also sought to preclude Appellant
from making impermissible attacks on the character of the victim. (See id.
at 3-5). Following oral argument on January 23, 2013, the trial court
in limine
2004 adult conviction of burglary, denied it with respect to all other adult
convictions, and took the issue of the juvenile adjudications under
advisement. (See N.T. Motion Hearing, 1/23/13, at 34). The trial court also
in limine to preclude
introduce evidence that the victim had previously assaulted him, that she
____________________________________________
6
We note that, based upon statements made during oral argument on the
motions in limine, it appears that Appellant also filed a motion in limine
regarding the admissibility of his prior adjudications and convictions. (See
N.T. Motion Hearing, 1/23/13, at 3). However, that motion is not listed on
the docket and we have been unable to locate it.
-3-
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she received accelerated rehabilitation following a charge of driving under
the influence. (See in Limine, supra at 5-6; N.T.
Motion Hearing, supra at 35-36).
A jury trial took place on January 25, 2013. At trial, the victim
testified that, soon after entering into a relationship with Appellant in the
summer of 2010, she became pregnant. (See N.T. Trial, 1/25/13, at 48).
However, the couple broke up in December 2011, when Appellant became
involved with another woman. (See id. at 51-54).
On January 23, 2012, the victim drove their pick-up truck to
See id. at 56-
58). Appellant got into the truck and sat in the back, because the baby was
in the front in a car seat. (See id. at 60). The victim was driving the truck
when the parties got into an verbal altercation. (See id.). The victim drove
truck; Appellant refused. (See id. at 61). The victim got back into the
vehicle and began to drive to her residence, continuing to argue with
Appellant. (See id. at 62-63). As they argued, Appellant grabbed the
the front bucket seats of the truck, while trying to grab the keys from the
ignition. (See id. at 63).
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When the victim yelled that Appellant was breaking her arm, Appellant
released it, but then reached from behind from the victim and put his hands
over her mouth and nose; again trying to grab the keys from the ignition.
(See id. at 64-65). As the victim continued to drive, Appellant hit her in the
back of the head twice and hit her in the right eye. (See id. at 67-69). The
two continued to argue and throw items out of the window of the truck.
(See id. at 71-72). Ultimately, the victim stopped the truck, removed the
See id. at 72-
74).
evidence eight text messages sent by the victim to Appellant wherein she
she was angry, bitter and jealous. (See id. at 104-12). The trial court
allowed the use of three of the text messages but refused to admit the rest.
(See id.).
Appellant testified in his own defense. (See id. at 169-246). In
rebuttal, the trial court allowed the Commonwealth to introduce evidence of
adjudications for theft from a motor vehicle. (See id. at 257-61).
Following trial, the jury found Appellant guilty of two counts of
recklessly endangering another person and one count of endangering the
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welfare of a child; it found Appellant not guilty of simple assault. The trial
court found Appellant not guilty of harassment.
On June 4, 2013, the sentencing court sentenced Appellant to an
aggregate term of incarceration of not less than twenty-two nor more than
forty-eight months to be followed by one year of probation. Appellant filed a
timely post-sentence motion, challenging the weight and sufficiency of the
evidence, which the trial court denied on November 13, 2013. Appellant
filed the instant, timely appeal.7
On appeal, Appellant raises the following questions for our review:
I.
for [a]ppointment of a [s]pecial [p]rosecutor, or, in the
alternative, [r]e-[a]ssignment of a [p]rosecutor?
II. m]otion
[in limine
[fourteen] juvenile adjudications on [t]heft from a [m]otor
[v]ehicle and [two] juvenile adjudications for [c]riminal
[c]onspiracy, which were all dated from over [ten] years
ago, along with an adult conviction for [b]urglary?
III. Did the [t]rial [c]ourt err in allowing the Commonwealth to
read [o]rders of a [b]urglary conviction and [sixteen]
juvenile adjudications into the record in rebuttal without
laying a proper foundation?
____________________________________________
7
Appellant filed a timely concise statement of errors complained of on
appeal on December 5, 2013. See Pa.R.A.P. 1925(b). The trial court issued
an opinion on December 19, 2013. See Pa.R.A.P. 1925(a).
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IV. Did the [t]rial [c]ourt err in refusing to permit the [j]ury to
view and hear testimony regarding all text messages sent
by [the victim] to Appellant?
V.
[m]otion [in limine] to [p]reclude [i]mpermissible [a]ttacks
on the [c]haracter of [the victim]?
VI. -
[s]entence [m]otion with respect to the weight and
-11).
In his first claim, Appellant alleges that the trial court erred in denying
his motion for appointment of a special prosecutor8 or, in the alternative, re-
assignment of a prosecutor. (See -26). As discussed
above, Appellant contends that A.D.A. McGraw had a conflict of interest
because he previously represented Appellant in a burglary case and the
Commonwealth used the fact of the burglary conviction to impeach Appellant
at trial. (See -24, 26; N.T. Motion Hearing,
12/03/12, at 3-4).). This issue lacks merit.
counsel, we employ a plenary standard of review. See Weber v. Lancaster
____________________________________________
8
his request for appointment of a special prosecutor and sought that the trial
court order a different assistant district attorney be assigned to the matter.
(See N.T. Motion Hearing, infra at 3).
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Newspapers, Inc., 878 A.2d 63, 80 (Pa. Super. 2005), appeal denied, 903
A.2d 539 (Pa. 2006).
is devoid of citation to relevant law and because he fails to explain the
conflict of interest in this matter. (See id. at 25-26). While Appellant
certain that Attorney McGraw acquired confidential
Appellant does not provide any examples of confidential information being
used against him in the instant matter. (Id. at 26). The record reflects
that, at trial, the only use made of the 2004 conviction was that Attorney
McGraw read a portion of the criminal information and a portion of the
sentencing order, both matters of public record, to the jury. (See N.T. Trial,
1/25/13, at 259-60). Thus, Appellant has not demonstrated that Attorney
McGraw made use of any confidential information obtained during his
representation of Appellant in a completely unrelated matter nearly ten
years prior to the instant proceedings.
Moreover, Pennsylvania Rule of Professional Conduct 1.11 states in
pertinent part:
Rule 1.11. Special Conflicts of Interest for Former
and Current Government Officers and Employees
* * *
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(1) any judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest or other particular
matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of
the appropriate government agency.
* * *
EXPLANATORY COMMENT
[1] A lawyer who has served or is currently serving as a public
officer or employee is personally subject to the Rules of
Professional Conduct, including the prohibition against current
conflicts of interests stated in Rule 1.7. In addition, such a
lawyer may be subject to statutes and government regulations
regarding conflict of interest.
* * *
[4] This Rule represents a balancing of interests. On the one
hand, where the successive clients are a government agency and
another client, public or private, the risk exists that power or
discretion vested in that agency might be for the special benefit
of the other client. A lawyer should not be in a position where
benefit to the other client might affect performance of the
Also, unfair advantage could accrue to the private client by
reason of access to confidential government information about
government service. On the other hand, the rules governing
lawyers presently or formerly employed by a government
agency should not be so restrictive as to inhibit transfer
of employment to and from the government. The
government has a legitimate need to attract qualified
lawyers as well as to maintain high ethical standards.
Thus, a former government lawyer is disqualified only
from particular matters in which the lawyer participated
personally and substantially. The provisions for screening in
paragraph (b) are necessary to prevent the disqualification rule
from imposing too severe a deterrent against entering public
service. The limitation of disqualification in paragraphs (a)(2)
and (d)(2) to matters involving a specific party or parties, rather
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than extending disqualification to all substantive issues on which
the lawyer worked, serves a similar function.
* * *
continue in another form. In determining whether two particular
matters are the same, the lawyer should consider the extent to
which the matters involve the same basic facts, the same or
related parties, and the time elapsed.
Pa.R.P.C. 1.11 (emphasis added). Thus, the rule is not client specific, rather
or a continuation of the prior matter. Here, we have two entirely separate
incidents, separated by a span of years. The record does not demonstrate
any relationship between the 2004 burglary conviction and the instant
appointment of a special prosecutor or, in the alternative, re-assignment of
In his second claim, Appellant avers that the trial court erred in
in limine allowing rebuttal evidence of
om a motor vehicle,
two juvenile adjudications for criminal conspiracy, and one adult conviction
for burglary.9 (See -34).
____________________________________________
9
While Appellant appears to claim in his statement of the questions involved
and in the caption to his argument that the trial court wrongly admitted his
adult conviction for burglary, he does not make any argument regarding the
admissibility of this conviction in the body of his brief. (See
(Footnote Continued Next Page)
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A motion in limine is a procedure for obtaining a ruling on
the admissibility of evidence prior to or during trial, but before
or deny a motion in limine is generally subject to an evidentiary
abuse of discretion standard of review.
The admissibility of evidence is at the discretion of the trial
court and only a showing of an abuse of that discretion, and
resulting prejudice, constitutes reversible error.
The term discretion imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion must
be exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary actions.
Discretion is abused when the course pursued represents not
merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality,
prejudice, bias or ill will.
Where the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge bears a
heavy burden. . . . [I]t is not sufficient to persuade the appellate
court that it might have reached a different conclusion if, in the
first place, charged with the duty imposed on the court below; it
is necessary to go further and show an abuse of the
discretionary power. . . . We emphasize that an abuse of
discretion may not be found merely because the appellate court
might have reached a different conclusion, but requires a
showing of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support as to be clearly
erroneous.
_______________________
(Footnote Continued)
Brief, at 10, 27-34). Because Appellant abandoned this claim, we find it
waived. See Commonwealth v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002)
(claims raised in the statement of questions involved but not pursued in the
body of the brief are waived).
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To constitute reversible error, an evidentiary ruling must
not only be erroneous, but also harmful or prejudicial to the
complaining party.
Commonwealth v. Williams, 91 A.3d 240, 248-49 (Pa. Super. 2014) (en
banc) (quotation marks, indentations, and citations omitted).
This Court has held that evidence of character or a particular character
trait is not admissible to prove that a defendant acted in accordance with
that trait on a certain occasion. See Commonwealth v. Buterbaugh, 91
A.3d 1247, 1263 (Pa. Super. 2014). However, such evidence is admissible
as crimen falsi evidence or as rebuttal of evidence of good character. See
id.
the witness has been convicted of a crime, whether by verdict or by plea of
guilty or nolo contendere, must be admitted if it involved dishonesty or false
10
which, in the instant matter, are over
ten years old. See Pa.R.E. 609(b)(1).
With respect to the admission of a conviction outside the ten-year
period, our Supreme Court has stated:
the following factors should be considered by the trial court in
determining whether previous convictions, which are outside the
ten-year time frame, are admissible for purposes of
impeachment: (1) the degree to which the commission of the
____________________________________________
10
Evidence of juvenile ad
609(d).
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prior offense reflects upon the veracity of the defendant-witness;
(2) the likelihood, in view of the nature and extent of the prior
record, that it would have a greater tendency to smear the
character of the defendant and suggest a propensity to commit
the crime for which he stands charged, rather than provide a
legitimate reason for discrediting him as an untruthful person;
(3) the age and circumstances of the defendant; (4) the strength
this evidence as compared with the availability to the defense of
other witnesses through which its version of the events
surrounding the incident can be presented; and (5) the existence
Commonwealth v. Rivera, 983 A.2d 1211, 1227 (Pa. 2009), cert. denied,
560 U.S. 909 (2010) (citation and footnote omitted).
In the instant matter, the trial court, after noting the Rivera factors,
stated its reasons for admitting the juvenile adjudications as follows:
In the instant case, the jury was required to make a
crimen falsi were relevant to the
distinct from the crimes for which [Appellant] was being tried,
and gave no indication to the jury that [Appellant] had any
propensity to commit crimes similar to the ones for which he was
on trial. Additionally, it is presumed that the jury follows the
instructions given by the trial court. Commonwealth v.
Housman, 986 A.2d 822[, 837] (Pa. 2009)[, cert. denied, 131
S. Ct. 199 (2010)]. This [c]ourt gave the jury instructions that
record insofar as it affected his truthfulness, and were not to
consider it as proof or evidence that he had a propensity to
commit crimes.
Further, no other alternative methods for impeaching
their infant son were the only witnesses to the incident which
took place. Both [Appellant] and [the victim], testified, and the
jury was forced to make a credibility determination as to their
testimony. Had [the victim] also had a prior record of crimes of
crimen falsi, this [c]ourt would have permitted its introduction
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for impeachment purposes. This [c]ourt did not abuse its
nile adjudications
for crimes of crimen falsi to be admitted to impeach his
credibility.
(Trial Court Opinion and Order, 11/13/13, at 11-12).
In Rivera, our Supreme Court specifically upheld the admission of
crimen falsi convictions over ten years old in similar circumstances, where
credibility, and where the juvenile adjudications did not suggest a propensity
to commit the crimes at issue. Rivera, supra at 1228-29. Given this, we
juvenile crimen falsi adjudications. See id.
merit.
In his third claim, Appellant contends that the trial court erred in
adjudications orders and an order of burglary conviction without laying a
proper evidentiary foundation. (See -36). Appellant
argues that, in order to admit the crimen falsi convictions, the
Commonwealth was required to call as witnesses both the custodian of the
records and one of the prosecutors from the prior cases. (See id. at 35).
We disagree.
Our standard of review is well-settled; we may only reverse a trial
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its discretion. , 836 A.2d 966, 968 (Pa.
Super. 2003), appeal denied, 845 A.2d 817 (Pa. 2004). The Pennsylvania
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
Evidence also state that certain documents are self-authenticating, including
a certified copy of a public record. See Pa.R.E. 902(4).
Here, the Commonwealth admitted certified copies of three juvenile
adjudication orders, one certified copy of Centre County Criminal
Information 2004-53, and one certified copy of the sentencing order in that
same case. (See N.T. Trial, 1/25/13, Commonwealth Exhibits 5-9). These
records are self-authenticating. See Pa.R.E. 902(4). Thus, the trial court
did not err in allowing the Commonwealth to read them into the record
without calling as witnesses the custodian of the records or the prosecutors.
In his fourth claim, Appellant maintains that the trial court abused its
discretion by refusing to allow into evidence all of the text messages sent by
the victim. (See 37-40). Appellant states that these
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at 37). At trial, Appellant sought to introduce eight text messages between
the victim and Appellant. (See N.T. Trial, 1/25/13, at 104-12). The trial
court permitted the introduction of three of the messages dated January 21,
22, and 23, 2013, during which the victim stated, in pertinent part:
Nop [sic]. Told ya [sic] if you stayed with that man monkey you
today, I mean it when I say the next time you see him will be in
court.
* * *
attention to and jealous of ppl [sic] who find a way through hard
y I am so
* * *
about or want. Sorry. Hard to break the habit of talking to you.
ignore
fucking pathetic.
(Defense Exhibits 5-7; see also N.T. Trial, 1/25/13, at 105-06). The trial
court refused to admit the remaining five undated texts, which stated in
pertinent part:
I
nigger.
* * *
Stayed with your slut last night?
* * *
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* * *
. . . But I do not appreciate you leaving us stranded and shutting
off your phone so you can forget about your child and fuck
niggers.
* * *
Good job. Fuckin [sic] your nigger more important than
spending time with your son? You been caught. Again. Fucker.
Never allowed to see your son. Ever.
(Defense Exhibits 8-12; see also N.T. Trial, at 107-10). The trial court
declined to admit these four texts because of the lack of date and time
stamps, and because, with respect to Defense Exhibit 11, it appeared to be
incomplete. (See Trial Court Opinion and Order, 11/13/13, at 7-8). The
trial court did not admit Defense Exhibit 12, which was time and date
stamped, because it appeared incomplete and because it was not part of the
series of texts leading up to the events of January 23, 2012. (See id. at 8).
needlessly cumulative and potentially more prejudicial than probative, as
their admission could create the potential for the jury to improperly
determine that [the victim] provoked [Appellant] into assaulting her, despite
Id. at 8-9).
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The Pennsylvania Supreme Court has long stated that a trial court has
the right to exclude evidence that is cumulative of other evidence. See
Commonwealth v. Chmiel, 30 A.3d 1111, 1136 (Pa. 2011). Here, at trial,
the victim testified on both direct and cross-examination that, she was
jealous, angry and hurt that Appellant was seeing another woman, that she
did not want this woman to have contact with their child, and that she called
(N.T. Trial, 1/25/13, at 52-53, 56, 61, 63, 66, 84, 88, 98-99, 103-04).
Thus, Appellant had ample opportunity to place before the jury evidence that
the victim was angry with him, jealous of his new girlfriend, and did not like
that his new girlfriend was African-American. The excluded text messages
were cum
See
Commonwealth v. Sattazahn, 763 A.2d 359, 364-65 (Pa. 2000), affirmed,
537 U.S. 101 (2003) (trial court did not err in excluding evidence of police
report wherein witness admitted he lied to police when defense counsel was
able to cross-examine victim with respect to another police report that said
same thing).
In his fifth claim, Appellant argues that the trial court erred in granting
in limine to preclude impermissible attacks on
the character of the victim. (See -42). Appellant
claims that he should have been allowed to develop evidence regarding the
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tal illness, her cutting herself, her abuse of both legal
involvement with Children and Youth Services, and past physical assaults on
Appellant. (See id. at 41). Appellant explains that this evidence was
relevant to show why he left the victim. (See id.). As discussed above, a
in limine is subject to an
evidentiary abuse of discretion standard. See Williams, supra at 248.
In
character, the Pennsylvania Rules of Evidence state in pertinent part:
Untruthfulness
(a) Reputation Evidence. may be
reputation for having a character for truthfulness or
untruthfulness. But evidence of truthful character is admissible
attacked. O
truthfulness or untruthfulness is not admissible.
(b) Specific Instances of Conduct. Except as provided in
Rule 609 (relating to evidence of conviction of crime),
(1) the character of a witness for truthfulness may not be
attacked or supported by cross-examination or extrinsic
conduct; . . . .
conduct are admissible to show a
Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa. Super. 2010) (citation
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omitted). A panel of this Court gave the example of evidence of the victim
blood-thirsty character being admissible in a case where the defendant
claimed self-defense. See id. at 1071-
g the alleged criminal episode upon which the
Id. at 1072.
Here, Appellant has not explained how the evidence discussed above
was in any way related to the criminal episode at issue or was probative of
an element of a crime or a defense. (See -42). In
Commonwealth v. Sasse, 921 A.2d 1229 (Pa. Super. 2007), appeal
denied, 938 A.2d 1052 (Pa. 2007), the trial court excluded evidence of a
al illness,
relevant to his state of mind on the night of the incident. See Sasse, supra
at 1238. We affirmed, stating that these traits of character were not
pertinent to the incident
attempt to paint [the victim/witness] in a negative light at trial and,
Id. We see no difference
between Sasse and the instant matter; thus the trial court did not abuse its
See id.
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In his final claim, Appellant challenges both the weight and sufficiency
of the evidence. (See ief, at 43-45). Our standard of review
for sufficiency of the evidence claims is well settled:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-
burden may be met by wholly circumstantial evidence and any
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.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations
omitted).
Court has repeatedly stated that, when challenging the sufficiency of the
element or elements upon which the ev
preserve the issue for appeal. Commonwealth v. Williams, 959 A.2d
1252, 1257 (Pa. Super. 2008) (quoting Commonwealth v. Flores, 921
A.2d 517, 522-23 (Pa. Super. 2007)). Such specificity is of particular
importance in cases where, as here, the jury convicted Appellant of multiple
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crimes against two victims; and each of the crimes contains elements that
the Commonwealth must prove beyond a reasonable doubt. See id. at 1258
-[s]entence motion with
(Concise Statement of Matters Complained of on Appeal, 12/05/13, at
unnumber
vague 1925(b) statement, which convictions he seeks to challenge and the
evidence claim waived.
Further, even if we did not find this claim subject to waiver for the
underdeveloped. Appellant does not set forth the elements of the crimes
that the jury convicted him of and does not set out the standard of review
for sufficiency of the evidence claims. (See -45).
Further, Appellant comingles his weight and sufficiency of the evidence
claims. (See id.). His argument is generally devoid of both citations to the
record and citation to relevant legal authority. (See id.). Accordingly,
Appellant has waived his sufficiency of the evidence claim for this reason as
well. See Commonwealth v. Liston, 941 A.2d 1279, 1285 (Pa. Super.
2008) (en banc), affirmed in part and vacated in part, 977 A.2d 1089 (Pa.
2009).
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Even if Appellant had not waived this claim for these reasons, it would
claim that the jury rendered an inconsistent verdict. (See Appel
at 43-45). a mere facial
inconsistency in verdicts is not a valid basis upon which to upset a conviction
Commonwealth v. Magliocco, 883 A.2d 479, 492 (Pa. 2005) (citation
omitted); see also Commonwealth v. Rakowski, 987 A.2d 1215, 1220
(Pa. Super. 2010), appeal denied, 9 A.3d 629 (Pa. 2010) (holding that an
inconsistent verdict is not a basis for reversal).
Further, because the evidence against Appellant mainly consisted of
should not have credited the testimony of the victim. However, an
argument that the finder of fact could not have credited
testimony goes to the weight of the evidence, not the sufficiency of the
evidence. See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa.
events goes to the weight, not sufficiency of the evidence);
Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003)
(holding that review of the sufficiency of the evidence does not include an
assessment of the credibility of testimony; such a claim goes to the weight
of the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.
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Super. 1997) (holding that credibility determinations are made by the finder
of fact and challenges to those determinations go to the weight, not the
sufficiency of the evidence). Accordingly, Appell
Our scope and standard of review of a weight of the evidence claim is
also long-settled:11
The finder of fact is the exclusive judge of the weight of
the evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will
verdict and grant a new trial only where the verdict is so
verdict is said to be contrary to the evidence such that it shocks
totters on her
causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the
judicial conscience.
Furthermore, where the trial court has ruled on the weight
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and internal quotation marks omitted).
____________________________________________
11
Appellant properly preserved his weight of the evidence claims in a post-
trial motion. (See Post-Sentence Motion, 6/14/13, at 7-8).
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J-S48045-14
t of the evidence
Commonwealth v. Diggs, 949
A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation
omitted).
-sentence motion, the trial court
explai See
Trial Court Opinion and Order, 11/13/13, at 4-6). We have thoroughly
that the trial court did not commit a palpable abuse of discretion in rejecting
the evidence claim must fail.
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2014
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