Com. v. Diaz, D. ( 2020 )

J-S60010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID DIAZ :
:
Appellant : No. 835 MDA 2019
Appeal from the Judgment of Sentence Entered May 8, 2019
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000098-2018
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED: MARCH 5, 2020
Appellant, David Diaz, appeals from the judgment of sentence entered
following his conviction of various crimes pertaining to a confrontation he had
with a former paramour. We affirm.
The trial court set forth the history of this case as follows:
The charges stem from an altercation between [Appellant] and
Debra Nunez (hereinafter “Ms. Nunez”) and Steven Noel
(hereinafter “Mr. Noel”) that occurred on October 9, 2017 in a
parking lot located at 420 West Tioga Plaza, Tunkhannock
Township, Wyoming County, Pennsylvania. [Appellant] and Ms.
Nunez have two (2) children together. (H.T. 11/13/18, pp. 38,
89, 95). According to the Reporting Officer Narrative [Appellant]
and Ms. Nunez recently broke up and [Appellant] was infuriated
that Ms. Nunez was dating Mr. Noel. As Ms. Nunez was dropping
off Mr. Noel at work with her two (2) year old grandson,
[Appellant’s] car approached Ms. Nunez with [Appellant] beeping
the horn erratically. (H.T. 11/13/18, pp. 42-[4]7, 93).
[Appellant] followed Ms. Nunez’s vehicle into the parking lot of the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S60010-19
Tractor Supply and Ms. Nunez exited her vehicle. (H.T. 11/13/18,
pp. 49, 90). [Appellant] was travelling with Ms. Nunez’s sister,
Patricia Hernandez, and the parties’ two (2) minor children. (H.T.
11/13/18, pp. 49-50). As Ms. Nunez exited her vehicle,
[Appellant] got out of his car and was calling her names, lifted his
shirt and pulled out a gun. (H.T. 11/13/18, pp. 51-[5]2, 97, 129-
131). Ms. Nunez was aware that [Appellant] carried a loaded gun
every day. (H.T. 11/13/18, pp. 53-[5]4).
Ms. Nunez testified that when [Appellant] pulled out his gun,
her children were screaming and that she went to the rear of her
vehicle so that if [Appellant] did shoot his gun, it would not hit her
car or her grandson. (H.T. 11/13/18, pp. 54-[5]5). [Appellant]
held the gun to Ms. Nunez’s face and she feared he was going to
kill her. (H.T. 11/13/18, pp. 56-[5]9). [Appellant] told Ms. Nunez
he wanted her to die. (H.T. 11[/]13/18, p. 59). After [Appellant]
pulled his gun towards Ms. Nunez, Mr. Noel exited the vehicle and
[Appellant] pointed the gun at him. (H.T. 11/13/18, pp. 59-61).
Mr. Noel testified that he feared for his life. (H.T. 11/13/18, p.
98). Sometime shortly thereafter, [Appellant] got in his vehicle
and left. (H.T. 11/13/18, pp. 61-[6]2).
Trial Court Opinion, 7/10/19, at 2-3.
A criminal complaint was filed on October 10, 2017, and a criminal
information was filed on April 5, 2018. On November 14, 2018, at the
conclusion of a jury trial, Appellant was convicted of one count each of
terroristic threats, recklessly endangering another person (“REAP”), simple
assault, and two counts each of disorderly conduct (engaging in fighting to
threatening behavior), disorderly conduct (creating a hazardous or physically
offensive condition), and harassment.1 On January 14, 2019, the trial court
entered an order permitting trial counsel to withdraw and appointed current
____________________________________________
1 18 Pa.C.S. §§ 2706(a)(1), 2705, 2701(a)(3), 5503(a)(1), 5503(a)(4), and
2709(a)(4), respectively.
-2-
J-S60010-19
counsel to represent Appellant. On May 8, 2019, the trial court sentenced
Appellant to serve an aggregate term of incarceration of one to twenty-three
and one-half months. Appellant filed timely post-sentence motions on May 9,
2019, which the trial court denied on May 10, 2019. This timely appeal
followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. DID THE TRIAL COURT ERR IN DENYING DEFENSE COUNSEL’S
REQUEST TO QUESTION OFFICER SIDOREK REGARDING
STATEMENTS MADE BY THE ALLEGED VICTIM’S DAUGHTER
REGARDING THE VICTIM’S VIOLENT CHARACTER?
2. DID THE TRIAL COURT ERR IN FAILING TO DISMISS COUNT 3
OF THE CRIMINAL INFORMATION, RECKLESSLY ENDANGERING
ANOTHER, 18 PA. C.S. §2705 WHERE THE COMMONWEALTH
FAILED TO PRESENT EVIDENCE THAT THE FIREARM ALLEGEDLY
UTILIZED BY [APPELLANT] IN THE PERPETRATION OF SAID CRIME
WAS EITHER FUNCTIONING OR LOADED WITH AMMUNITION?
3. DID THE TRIAL COURT ERR IN FAILING TO DISMISS THE
CHARGE OF TERRORISTIC THREATS AS AGAINST DEBRA NUNEZ,
18 Pa. C.S. §2706, WHERE THE EVIDENCE PRESENTED FAILED TO
DEMONSTRATE THAT APPELLANT POSSESSED A SETTLED
PURPOSE TO TERRORIZE THE ALLEGED VICTIM?
4. WAS THE TESTIMONY OF THE COMMONWEALTH’S WITNESSES
SO INHERITELY INCONSISTENT SUCH THAT THE JURY’S VERDICT
AS TO EACH COUNT FOR WHICH APPELLANT WAS CONVICTED
COULD ONLY HAVE BEEN ARRIVED AT THROUGH SPECULATION
AND CONJECTURE?
Appellant’s Brief at 5.
Appellant first argues that the trial court erred in failing to permit
defense counsel to question a police officer regarding Ms. Nunez’s daughter’s
statements, which the officer had included in a police report. Appellant’s Brief
-3-
J-S60010-19
at 14-16. Appellant alleges that language in the police report evinces that
Ms. Nunez, the victim, is violent. Appellant contends that the “character trait
of violence was relevant where the crux of the Commonwealth’s prosecution
was that Appellant was violent and threatening to the victim.” Id. at 15.
We disagree.
The decision to admit or exclude evidence is committed to the trial
court’s sound discretion, and its evidentiary rulings will be reversed only upon
a showing that it abused that discretion. Commonwealth v. Laird, 988 A.2d
618, 636 (Pa. 2010). Such a finding may not be made “merely because an
appellate court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.” Id. (quoting
Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)).
Pa.R.E. 402 provides that generally, “[a]ll relevant evidence is
admissible” and “[e]vidence that is not relevant is not admissible.”
Furthermore, Pa.R.E. 401 provides the following test for relevancy:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Pa.R.E. 401.
The basic requisite for the admissibility of any evidence is that it be
competent and relevant. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa.
-4-
J-S60010-19
Super. 2003). Thus, in determining whether evidence should be admitted,
the trial court must weigh the relevance and probative value of the evidence
against the prejudicial effect of that evidence. Commonwealth v. Barnes,
871 A.2d 812, 818 (Pa. Super. 2005). Evidence is relevant if it logically tends
to establish a material fact in the case or tends to support a reasonable
inference regarding a material fact. Id. Although relevance has not been
precisely or universally defined, the courts of this Commonwealth have
repeatedly stated that evidence is admissible if, and only if, the evidence
logically or reasonably tends to prove or disprove a material fact in issue,
tends to make such a fact more or less probable, or affords the basis for or
supports a reasonable inference or presumption regarding the existence of a
material fact. Freidl, 834 A.2d at 641.
“Although relevant, evidence may be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” Pa.R.E. 403.
Under the Pennsylvania Rules of Evidence, character evidence is
governed by Rule 404, which provides:
Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character
trait is not admissible to prove that on a particular occasion the
person acted in accordance with the character or trait.
-5-
J-S60010-19
(2) Exceptions for a Defendant or Victim in a Criminal Case. The
following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s
pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it;
(B) subject to limitations imposed by statute a
defendant may offer evidence of an alleged victim’s
pertinent trait, and if the evidence is admitted the
prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same
trait; and
(C) in a homicide case, the prosecutor may offer
evidence of the alleged victim's trait of peacefulness
to rebut evidence that the victim was the first
aggressor.
Pa.R.E. 404 (emphasis added).
“[S]pecific instances of a victim’s prior conduct are admissible to show
a victim’s character trait only if the trait in question is probative of an element
of a crime or a defense.” Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa.
Super. 2010). In Minich, we explained that “evidence relating to specific
instances of a victim’s prior conduct must be probative of the victim’s conduct
during the alleged criminal episode upon which the current charges are
based.” Id. at 1072. Under Rule 404(2)(B), evidence of “the alleged victim’s
pertinent trait” is “limited to a character trait of the victim that is relevant to
the crime or defense at issue in the case.” Id. “[C]riminal defendants
asserting self-defense may introduce evidence of a victim’s prior conduct
-6-
J-S60010-19
tending to establish the victim’s violent propensities.” Id.; see also
Commonwealth v. Miller, 634 A.2d 614, 622 (Pa. Super. 1993) (where self-
defense was properly at issue in the case, then expert testimony regarding
“battered woman syndrome” was relevant to prove the defendant’s state of
mind as it relates to an element of a theory of self-defense).
In Commonwealth v. Sasse, 921 A.2d 1229 (Pa. Super. 2007), the
trial court excluded evidence of a victim/witness’s use of drugs and alcohol,
sexual promiscuity, mental illness, and her father’s criminal status, which the
defendant had argued was relevant to his state of mind on the night of the
incident. Sasse, 921 A.2d at 1238. We affirmed, stating that these traits of
character were not pertinent to the incident in question, and “their only
purpose would be to attempt to paint [the victim/witness] in a negative light
at trial and, therefore, to discredit her testimony improperly.” Id.The following is the language in question from the police report:
It should be noted that while speaking with [O.] she stated when
she stays at her mother’s residence she in constant fear for her
and her brother’s safety because her mother gets highly
intoxicated and verbally harasses her. [O.] also stated once her
mother got so drunk she hit her Aunt ([Ms.] Hernandez)
repeatedly giving her two (2) black eyes then laughed about it.
Chief Carpenter stated he has witnessed the severe intoxication
of Nunez. Chief Carpenter contacted Wyoming County Children
and Youth who initiated an investigation on behalf of the children.
-7-
J-S60010-19
Trial Court Opinion, 7/10/19, at 4.2
After reviewing the police report and hearing oral argument from the
parties, the trial court stated:
The court, on break, reviewed a motion from defense counsel …
to include in the police report the final paragraph regarding prior
acts not related to the case at bar. The court’s reviewed the same
and the motion to enter the last paragraph of Officer Sidorek’s
police report is denied due to the fact that it is not relevant to the
incident at bar.
N.T., 11/13-14/18, at 173.
Because Appellant did not raise self-defense in this case, it was within
the court’s discretion to exclude evidence of Ms. Nunez’s bad character traits
because such evidence was not pertinent to any crime or defense being raised.
Minich, 4 A.3d 1072. Moreover, Appellant has not explained how the
evidence was related to the criminal episode at issue or was probative of an
element of a crime or a defense. We see no difference between Sasse and
the instant matter. Hence, we discern no abuse of the trial court’s discretion
in precluding evidence. Therefore, this issue lacks merit.
____________________________________________
2 We note that Appellant also claims that the language in the report
establishes a motive for the victim to lie about the incident because the report
suggests that the chief of police had witnessed the victim’s intoxication and
initiated an investigation by Wyoming County Children and Youth Services.
Id. at 15-16. However, during the trial, Appellant’s counsel conceded that
the language in the report should be redacted, stating, “I would understand
the court’s reluctance to put Chief Carpenter’s statement that was listed in
there. I think that is hearsay, and I would agree that it should be redacted if
it goes to the jury.” N.T., 11/13-14/18, at 168. Accordingly, we decline to
consider this portion of Appellant’s argument.
-8-
J-S60010-19
Appellant’s second and third issues present challenges to the sufficiency
of the evidence to support his convictions of REAP and terroristic threats. Our
standard of review is well established:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder[’s]. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the finder
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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
In his second issue, Appellant argues that the Commonwealth failed to
establish that he committed the crime of REAP. Appellant’s Brief at 16-18.
Specifically, Appellant “contends that the Commonwealth’s evidence fails to
establish that Appellant possessed the actual present ability to place
Ms. Nunez in danger of death or serious bodily injury.” Id. at 16. Appellant
asserts that there was no evidence to suggest that the firearm was either
operable or loaded. Id. Appellant claims there was no testimony to establish
that the loaded firearm discovered in Appellant’s vehicle was the same firearm
-9-
J-S60010-19
used in the incident. Id. at 16-17. Appellant concludes that “[a]bsent
evidence that the firearm in question was both loaded and operational, the
Commonwealth failed to establish that Appellant created a danger of death or
serious bodily harm.” Id. at 17-18.
The crime of REAP is defined in the Crimes Code as follows:
A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.
18 Pa.C.S. § 2705.
Section 2705 is satisfied where a defendant’s conduct “places or may
place another person in danger of death or serious bodily injury.” 18 Pa.C.S.
§ 2705. Further, we have held that “[t]he crime of REAP is a crime of assault
which requires the creation of danger. As such, there must be an actual
present ability to inflict harm. . . . [T]he mere apparent ability to inflict harm
is not sufficient. Danger, and not merely the apprehension of danger, must
be created.” Commonwealth v. Reynolds, 835 A.2d 720, 727-728 (Pa.
Super. 2003) (internal quotations and citations omitted). Under the plain
terms of the statute, a REAP conviction is supportable even where the victim
suffered no actual injury whatsoever. See Commonwealth v. Hartzell, 988
A.2d 141, 143-144 (Pa. Super. 2009) (explaining that the evidence was
sufficient to support the appellant’s two REAP convictions because: “The
testimony established that from a distance of approximately 30 yards,
appellant fired into the creek near the bridge, approximately 25 to 30 feet
- 10 -
J-S60010-19
away from the [victims’] location on the bridge. Although appellant may not
have pointed the weapon directly at the two [victims], it was pointed in their
general direction. Moreover, the evidence established that the water was
rather shallow and there were rocks in the stream. . . . Thus, it is hardly
inconceivable that a bullet fired into the stream nearby could have struck a
rock or other object and deflected up and hit one of the two men”); Reynolds,
835 A.2d at 729 (pointing a loaded gun at an individual created the danger of
death or serious bodily injury and the evidence was thus sufficient to support
the defendant’s REAP conviction).
Our review of the record reflects that Ms. Nunez testified regarding the
incident. She explained that when Appellant came toward her, he lifted his
shirt and then he pulled out his gun. N.T., 11/13-14/18, at 51. She clarified
that she and Appellant had lived together, and she knew that he carried a
loaded handgun every day. Id. at 52-53. Ms. Nunez further testified:
Q. Did he ever talk about whether or not the gun was loaded?
A. Yes.
Q. Can you tell us what he may have said?
A. The gun was always load-loaded because I had asked him that
if he napped or something like that, if he could at least put it into,
you know, a safe. I thought it was unsafe for a gun to be loaded
while he slept with it.
Q. And would he accommodate your request?
A. No.
- 11 -
J-S60010-19
Id. at 53. In addition, Ms. Nunez stated that during the incident Appellant
pointed the gun at her face. Id. at 58.
The Commonwealth also presented the testimony of Officer Corey
Sidorek of the Tunhannock Township Police Department. Officer Sidorek
stated that he was dispatched to the scene of the incident and that Appellant
was not present when he arrived. N.T., 11/13-14/18, at 139-140. After
receiving another 911 call indicating that Appellant was at a particular
address, Officer Sidorek went to the residence and met with Appellant. Id. at
141-142. The officer then provided the following testimony:
Q. When you spoke to him at that time, tell me about the
conversation.
A. I asked [Appellant] if he had been in to the Tractor Supply
parking lot that day. He stated no. He went straight to the school,
dropped the kids off. I asked him if he had a firearm. He said
yes, it was a Sig Sauer, which he didn’t-
Q. I’m sorry. I didn’t hear the last part. He said what?
A. He said yes, I have a Sig-I have a conceal carry, which was a
Sig Sauer 9 millimeter handgun.
Q. What’s Sig Sauer?
A. Sig Sauer is a make of a handgun.
Q. OK, so he told you he had this?
A. Yes, it was located in the trunk of his Volkswagen GTI vehicle.
Q. At that time?
A. At that time.
Q Did he show it to you?
- 12 -
J-S60010-19
A. We located it in the trunk of the vehicle. We used the serial
number, ran a records check, it was registered to [Appellant]. He
did have a proper conceal carry permit.
Q. OK, so let’s back up for a second. How did you get to finding
the gun in the trunk?
A. [Appellant] told me that’s where it was located.
Q. And did you ask if you could see it?
A. Yes.
Q. And did he take you to it?
A. Yes.
Q. And did he open the trunk?
A. Yes.
Q. And he voluntarily showed it to you?
A. Yes.
Q. Did he take it out?
A. We took it out.
Q. Why?
A. Officer safety.
Q. What else did you do for officer safety?
A. We unloaded the handgun.
Q. You what?
A. Unloaded the handgun.
Q. It was loaded?
A. Yes.
- 13 -
J-S60010-19
Id. at 142-144.
Under the totality of the circumstances, the evidence presented at trial,
viewed in the light most favorable to the Commonwealth as the verdict winner,
establishes that Appellant pointed a loaded handgun at Ms. Nunez face. This
evidence is sufficient to sustain Appellant’s conviction of REAP. Accordingly,
Appellant’s claim lacks merit.
Appellant next argues that the Commonwealth failed to present
sufficient evidence to sustain his conviction of terroristic threats. Appellant’s
Brief at 18-19. Appellant contends that the facts of the case indicate that he
was making a “spur of the moment threat” arising out of anger, which was
insufficient to sustain the conviction. Id. We disagree.
The crime of terroristic threats is set forth at 18 Pa.C.S. § 2706(a) and
provides, in relevant part, as follows:
(a) Offense defined.—A person commits the crime of terroristic
threats if the person communicates, either directly or indirectly, a
threat to:
(1) commit any crime of violence with intent to
terrorize another; . . . .
18 Pa.C.S. § 2706(a)(1).
As this Court has previously explained, for a defendant to be convicted
of terroristic threats:
“the Commonwealth must prove that 1) the defendant made a
threat to commit a crime of violence, and 2) the threat was
communicated with the intent to terrorize another or with reckless
disregard for the risk of causing terror.” Commonwealth v.
Tizer, … 684 A.2d 597, 600 ([Pa. Super.] 1996). “Neither the
- 14 -
J-S60010-19
ability to carry out the threat, nor a belief by the person
threatened that the threat will be carried out, is an element of the
offense.” In re J.H., 797 A.2d 260, 262 (Pa. Super. 2002).
“Rather, the harm sought to be prevented by the statute is the
psychological distress that follows from an invasion of another’s
sense of personal security.” Tizer, 684 A.2d at 600.
Commonwealth v. Beasley, 138 A.3d 39, 46 (Pa. Super. 2016) (quoting
Reynolds, 835 A.2d at 730). Moreover, we have long held that a defendant’s
intent to terrorize can be inferred from his actions and from the message he
communicated. Commonwealth v. Kelley, 664 A.2d 123, 128 (Pa. Super.
1995). Therefore, a direct communication of a threat between the perpetrator
and the victim is not a requisite element of the crime of terroristic threats.
Id. at 127. Also, the Commonwealth is not required to produce evidence that
the person to whom the defendant communicated the threat was actually
frightened. Id.Our review of the record reflects Ms. Nunez testified that, when she
pulled her car into a parking lot, Appellant followed in his vehicle and parked
next to her. N.T., 11/13-14/18, at 47-49. Ms. Nunez further explained that,
after she exited her vehicle, Appellant exited his vehicle, charged toward her,
pulled his gun, and pointed it at her face. Id. at 49-58. Ms. Nunez stated
that she thought Appellant was about to kill her. Id. at 47, 54, 58. She
explained that Appellant had threatened her numerous times stating, “He’s
told me he-he wanted me to die. He would kill me. He wanted to kill me.”
Id. at 58-59. Ms. Nunez also testified to various instances in the past in which
Appellant had threatened to kill her. Id. at 59.
- 15 -
J-S60010-19
Based on the foregoing, we are satisfied that the jury properly
determined that the Commonwealth established all the elements of the crime
of terroristic threats beyond a reasonable doubt. This testimony, which was
found credible by the jury, with the inferences therefrom, was sufficient to
prove beyond a reasonable doubt that Appellant intended to terrorize the
victim with his prior threats to kill her coupled with his action of charging the
victim and pointing a loaded gun at her. Therefore, the evidence was sufficient
to sustain Appellant’s conviction of terroristic threats. Hence, Appellant’s
contrary claim lacks merit.
Appellant last argues that the guilty verdicts were against the weight of
the evidence. Appellant’s Brief at 19-20. Appellant contends that, although
the two victims testified that Appellant pointed a gun at them, another witness
denied seeing Appellant with a gun, and a fourth eyewitness did not see
Appellant point a gun. Id. at 19. Appellant also claims that the evidence
regarding the actual firearm was specious because one victim described the
gun as a 9mm Berretta, and the police recovered a Sig Sauer handgun from
Appellant’s possession. Id. Essentially, Appellant claims that the verdicts of
guilty rendered by the jury are so contrary to the weight of the evidence that
they shock one’s sense of justice such that his convictions should be reversed
and a new trial ordered.
- 16 -
J-S60010-19
In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme
Court set forth the following standards to be employed in addressing
challenges to the weight of the evidence:
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. Commonwealth v. Widmer, 560 Pa. 308, 319,
744 A.2d 745, 751-[7]52 (2000); Commonwealth v. Brown,
538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). 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. Widmer, 560 A.2d at 319-[3]20, 744 A.2d
at 752. 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.’” Id. at 320, 744 A.2d at 752 (citation
omitted). It has often been stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.” Brown, 538 Pa. at 435, 648 A.2d at 1189.
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. Brown, 648 A.2d at 1189. 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. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
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.
- 17 -
J-S60010-19
Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
added).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based on
a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
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 where 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.
Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
[11]85 (1993)).
Clay, 64 A.3d at 1054-1055 (emphasis in original). “Thus, the trial court’s
denial of a motion for a new trial based on a weight of the evidence claim is
the least assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873,
879-880 (Pa. 2008).
The trial court addressed the challenge to the weight of the evidence as
follows:
As repeatedly stated above, the Commonwealth and
defense both presented evidence over the course of two days,
which the jury dutiful[ly] listened [to]. More specifically, the
Commonwealth’s evidence showed that [Appellant] pointed a gun
at the victims in the presence of three (3) minor children.
- 18 -
J-S60010-19
Following closing arguments, the jury was instructed and the jury
… rendered its verdict.
Trial Court Opinion, 7/10/19, at 7.
Based upon our complete review of the record, we are compelled to
agree with the trial court’s conclusion that the jury’s verdict was in keeping
with the evidence presented. Here, the jury, sitting as the finders of fact, was
free to believe all, part, or none of the evidence against Appellant. The jury
weighed the evidence and concluded Appellant perpetrated the nine crimes
stated above. We agree that these determinations are not so contrary to the
evidence as to shock one’s sense of justice. We decline Appellant’s invitation
to assume the role of fact-finder and reweigh the evidence. Accordingly, we
conclude that the trial court did not abuse its discretion in refusing to grant
relief on Appellant’s challenge to the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/05/2020
- 19 -