J-A34033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MASTER GREENE
Appellant No. 532 MDA 2014
Appeal from the Judgment of Sentence imposed January 31, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No: CP-36-CR-0004487-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.
MEMORANDUM BY STABILE, J. FILED APRIL 24, 2015
Appellant Master Green appeals the judgment of sentence the Court of
Common Pleas of Lancaster County imposed on January 31, 2014. For the
reasons stated below, we affirm.
The trial court summarized the factual and procedural background of
this matter as follows:
On November 16, 2011, an arrest warrant was issued for
Appellant as result of being charged with the offenses of rape of
a child under 13 years of age, indecent assault of a person less
than 13 years of age, corruption of a minor by a defendant over
18 years of age for purpose of committing a sexual offense,
unlawful contact with a minor relating to sexual offenses, and
endangering the welfare of a child. The basis for these charges
was an allegation that between April 1, 2011, and July 31, 2011,
Appellant engaged in sexual contact with his girlfriend’s
daughter, M.R., age four, at their residence in Strasburg,
Lancaster County, Pennsylvania. Appellant fled the jurisdiction
when confronted by his girlfriend with these allegations, and was
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ultimately arrested in Mesa County, Colorado, on March 8, 2012,
and extradited back to Pennsylvania on June 19, 2012.
The child victim, M.R., was interviewed on June 29, 2011, by
Mary Hayle, a forensic interviewer, at the Lancaster County
Children’s Alliance. Officer Bradley A. Klunk of the Strasburg
Borough Police Department observed the interview from another
room. During this recorded interview, M.R. disclosed that
“[U]ncle” (the name she uses for Appellant): (1) “touched her
‘Cookie’” (her word for vagina); (2) “pulled her pants down and
was touching her Cookie with his hand when she was sleeping in
her room”; (3) “touched her Cookie with his Cookie inside her
Cookie”; and (4) put his Cookie “in deep and he peed in her
Cookie” on more than one occasion.
Prior to trial, the Commonwealth filed a Petition to Admit Out-of-
Court Statements under the Tender Years Hearsay Exception, 42
Pa.C.S.A. § 5985.1, and a Motion to Permit Testimony by
Contemporaneous Alternative Method Pursuant to the
Pennsylvania Uniform Child Witness Testimony by Alternative
Methods Act, 42 Pa.C.S.A. § 5985. A combined hearing on the
motion and petition was held at the time of trial.
At the conclusion of the hearing on October 15, 2013, this
[c]ourt granted the petition to admit out-of-court statements,
having found that the statements made by the child victim to
Ms. Hayle, to her mother, A.R., and to her cousin, Armand Miller,
were relevant, and that the time, content and circumstances of
the statements provided sufficient indicia of reliability for their
admission pursuant to 42 Pa.C.S.A. § 5985.1. This [c]ourt
further approved, on the record, the Commonwealth’s motion to
permit testimony by alternative method.
This case immediately proceeded to a jury trial . . . following
the[] rulings o[f] October 15, 2013. On October 18, 2013,
Appellant was found guilty on all charges. . . .
Trial Court Opinion, 5/7/14, at 1-3 (footnotes and citations to record
omitted).
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This appeal followed. Both the trial court and Appellant complied with
Pa.R.A.P. 1925.1
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1
In his Rule 1925(b) statement, Appellant raised the following issues:
1. The trial court erred when finding the jury verdict was not
against the weight of the evidence. Specifically the
Commonwealth did not present sufficient credible evidence
for a finding of guilty. The Commonwealth’s sole evidence in
support of a guilty verdict is the testimony of a minor child,
aged four (4) when the alleged incident took place[,] and
aged six (6) during the trial. Considering the inability of the
child to identify in court, the frequent comment that she did
not remember information, and the inconsistencies in her
testimony, the verdict shocks one’s sense of justice.
2. [Sentencing issue not raised on appeal].
3. The trial court erred when it allowed hearsay under the tender
years’ doctrine, specifically in [its] determination that there
was a sufficient indicia of reliability as required by 42
Pa.C.S.A. § 5985.1(a)(1). When determining whether an
indicia of reliability exists the court may consider “. . .
consistent repetition of the statement(s) . . . .” Considering
the inconsistency of the child’s testimony, there is not
sufficient indicia of reliability to support the tender years
exception to hearsay.
4. The trial court erred when it allowed testimony by
contemporaneous alternative method, specifically in
determining that the child witness would suffer serious
emotional distress that would substantially impair the child’s
ability to communicate by testifying in an open forum in front
of the finder of fact or defendant, as required by
42 Pa.C.S.A. § 5985(a.1). There was no evidence that
testifying in front of the jury would cause the child any
emotional distress or impair the child’s ability to
communicate. Further, there was insufficient evidence to
support a finding that the child would suffer serious emotional
distress or impairment in her ability to communicate with
(Footnote Continued Next Page)
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On appeal, Appellant raises the following issues:
A. Did the trial court encroach upon Appellant’s rights under
the Confrontation Clause by admitting a testimonial
recorded deposition into evidence vis a vis by determining it
to be reliable?
B. Whether the trial court erred in finding M.R. would suffer
serious emotional distress if required to testify in open court
despite the impetus (presence of Appellant) of her alleged
emotional distress offering to be voluntarily absent from the
courtroom?
C. Did the trial court commit reversible error in refusing to
grant Appellant a new trial despite the jury’s verdict being
so contrary to the weight of the evidence presented to shock
one’s sense of justice?
Appellant’s Brief at 4.
The first two issues raised on appeal involve evidentiary rulings.
An appellate court’s standard of review of a trial court’s
evidentiary rulings which include rulings on the admission of
hearsay is abuse of discretion. However, whether a defendant
has been denied his right to confront a witness under the
Confrontation Clause of the Sixth Amendment to the United
States Constitution, made applicable to the States via the
Fourteenth Amendment, is a question of law, for which our
standard of review is de novo and our scope of review is plenary.
In re N.C., 105 A.3d 1199, 1210 (Pa. 2014).
_______________________
(Footnote Continued)
[appellant] present, considering the child’s pleasant mood
and ability to testify in prior settings. Further, [Appellant]
offered to be not present for the child’s testimony, and there
is no evidence that the child would suffer emotional distress
or be unable to testify under such circumstances.
Appellant’s “Statement of Matters Complained of,” 4/25/14, at 1-2.
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Appellant did not raise the first issue (i.e., Confrontation Clause claim)
in his Rule 1925(b) statement.2 Appellant raises it for the first time on
appeal. Accordingly, the issue is waived. See Pa.R.A.P. 302(a);
Commonwealth v. Elia, 83 A.3d 254, 263 (Pa. Super. 2013) (“Issues not
included in the Statement and/or not raised in accordance with [Rule
1925(b)(4)] are waived”) (quoting Pa.R.A.P. 1925(b)(4)).
We also note the issue is meritless because the Confrontation Clause,
and in particular Crawford v. Washington, 541 U.S. 36 (2004), does not
lend support to Appellant’s position.3 Appellant fails to acknowledge that
M.R. testified at trial, and that Appellant had ample opportunity to cross-
examine M.R. on this matter. For whatever reason, Appellant declined to
challenge M.R. “If [Appellant] had an opportunity to cross-examine the
declarant about statements that the declarant made, then there is no
Confrontation Clause violation.” Commonwealth v. Mollett, 5 A.3d 291,
308 (Pa. Super. 2010), appeal denied, 14 A.3d 826 (Pa. 2011) (citing
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2
Reliability for purpose of 42 Pa.C.S.A. § 5985.1(a)(1) cannot be deemed to
include his Confrontation Clause claim as a “subsidiary issue contained
therein which was raised in the trial court[.]” Pa.R.A.P. 1925(b)(4)(v)
(emphasis added).
3
The Commonwealth does not suggest that M.R.’s statements to the
forensic interviewer were not testimonial or that they would have been
admissible at trial without M.R.’ s testimony. Commonwealth’s Brief, at 9
n.3.
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Commonwealth v. Charlton, 902 A.2d 554, 560 (Pa. Super. 2006), appeal
denied, 911 A.2d 933 (Pa. 2006)); see also Crawford, supra.4
In the argument section of his brief, Appellant, for the first time, also
argues the victim, while physically present on the stand, was in fact
“unavailable” for purposes of the Confrontation Clause. Specifically,
Appellant argues the victim should have been declared unavailable because
she was not put in a position to defend or explain her prior statements.
Appellant’s Brief at 27.5 Appellant blames the Commonwealth for failing to
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4
In Crawford, the U.S. Supreme Court noted:
[W]e reiterate that, when the declarant appears for cross-
examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.
It is therefore irrelevant that the reliability of some out-of-court
statements cannot be replicated, even if the declarant testifies to
the same matters in court. The Clause does not bar admission
of a statement so long as the declarant is present at trial to
defend or explain it.
Crawford, 541 U.S. at 59 n.9.
5
Despite cases from this jurisdiction discussing this issue, see, e.g., In re
N.C., 74 A.3d 271 (Pa. Super. 2013), aff’d, 105 A.3d 1199 (Pa. 2014);
Mollett, 5 A.3d at 308-309; Commonwealth v. Kriner, 915 A.2d 653 (Pa.
Super. 2007) (citing Fidler v. Cunningham-Small, 871 A.2d 231, 237 (Pa.
Super 2005) (specifically discussing definition of unavailability for purposes
of Section 5985.1)), Appellant mostly relies on out-of-state and/or federal
court of appeals decisions.
Among others, Appellant relies on United States v. Spotted War Bonnet,
933 F.2d 1471 (8th Cir. 1991), cert. denied, 502 U.S. 1101 (1992) for the
proposition that “a child witness is not automatically deemed available for
cross-examination by virtue of walking into court and simply taking the
(Footnote Continued Next Page)
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properly question the victim on her prior statements. According to
Appellant, had the Commonwealth properly questioned the victim, Appellant
would have been able “to explore the circumstances in which such hearsay
statements were obtained.” Id. Not surprisingly, Appellant provides no
authority for his bald suggestion the Commonwealth had a duty of cross-
examining the victim on Appellant’s behalf.
The record also belies the allegation because the victim did in fact
provide testimony pertaining to the facts of the case, which could have been
challenged by Appellant during cross-examination. Appellant says nothing,
however, about his decision not to cross-examine the victim on this matter,
despite the fact he had the opportunity to do so.
These facts make the instant matter easily distinguishable from N.C.
In N.C., the victim/witness “was unable to provide direct examination
_______________________
(Footnote Continued)
witness stand.” Appellant’s Brief at 26. Appellant fails to mention, however,
that when, as in this matter,
the contention is made that the live testimony of a given witness
satisfies Confrontation Clause concerns as to the admissibility of
out-of-court statements made by the same witness, the question
is whether there is “an opportunity for effective cross-
examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.”
Spotted War Bonnet, 933 F.2d at 1474 (emphasis in original) (quoting
Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).
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testimony regarding any contact [defendant] might have had with [the
victim/witness].” In re N.C., 105 A.3d at 1216. Furthermore,
Despite the prosecutor’s persistent encouraging of [victim] to
speak so the juvenile court could hear her, she responded to his
queries with head movements and only a few, single-word verbal
responses and became totally unresponsive to his repeated
efforts to elicit information regarding inappropriate contact N.C.
may have had with her on November 5, 2011. Her ultimate
recoiling into a fetal position prompted the juvenile court to
acknowledge on the record that [victim] was not going to
participate any further and to suggest she should be removed
from the witness stand.
Id.
Clearly, this is not the case here. M.R.’s testimony provided adequate
direct testimony regarding contacts she had with Appellant. The trial court
summarized her testimony as follows:
In her testimony at trial, M.R., then six years old, unequivocally
stated that “only Uncle” ever touched her private parts. She
specifically recalled the abuse happening in her mother’s bed,
during the day, while she was watching television, and on more
than one occasion. M.R. also clearly identified her [U]ncle’s
“cookie,” or private part, as “kind of . . . like a hose,” and
different from her private part. She found it hard to remember
at trial whether her [U]ncle’s private part went inside her private
part, whether anything came out of her [U]ncle’s private part
when he touched [her] private part, and what it felt like when
[u]ncle’s private part touched her private part.
Trial Court Opinion, 5/7/14, at 6-7 (citation to record omitted).
On cross-examination, Appellant made no attempt to question M.R.
about the facts she just disclosed. Rather, Appellant attempted to elicit from
M.R. answers that would picture him in a positive way. M.R., however,
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testified that Appellant did only “bad stuff” to her. N.T. Trial, 10/16/13, at
226-27.
In light of the foregoing, to the extent the claim can be deemed
preserved for appellate review, we conclude the introduction of the
statements the victim made to Ms Hayle did not violate Appellant’s
Confrontation Clause rights.
In his Rule 1925(b) statement, Appellant challenges the admission of
“hearsay”6 to the extent the trial court found it reliable for purposes of
Section 5985.1, the Tender Years Hearsay exception. 7 To this end,
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6
In his Rule 1925(b) statement, supra, Appellant does not identify the
hearsay improperly admitted under the Tender Years Hearsay exception. He
merely identifies this material as “hearsay.” On appeal, Appellant limits his
argument only to the statements M.R. made to Ms. Hayle.
7
Section 5985.1, in relevant part reads:
(a) General rule.--An out-of-court statement made by a child
victim or witness, who at the time the statement was made was
12 years of age or younger, describing any of the offenses
enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal
homicide), 27 (relating to assault), 29 (relating to kidnapping),
31 (relating to sexual offenses), 35 (relating to burglary and
other criminal intrusion) and 37 (relating to robbery), not
otherwise admissible by statute or rule of evidence, is admissible
in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the evidence
is relevant and that the time, content and circumstances of
the statement provide sufficient indicia of reliability; and
(2) the child either:
(Footnote Continued Next Page)
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Appellant argues there were too many inconsistencies in M.R.’s testimony to
make the evidence reliable. Yet, Appellant did not identify one
inconsistency. Indeed, the trial court refused to scour the record for
inconsistent statements. Trial Court Opinion, 5/7/14, at 19, n.11. Similarly,
on appeal, Appellant alleges there were inconsistencies in her version of the
facts, but does not identify any of them, and most importantly does not
explain why he did not act on them on cross-examination. We, therefore,
decline to find merit in this issue.
Next, Appellant challenges the trial court’s decision to allow M.R. to
testify by closed circuit television, despite the fact Appellant was willing to
leave the courtroom during her testimony. On appeal, Appellant focuses on
_______________________
(Footnote Continued)
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
(a.1) Emotional distress.--In order to make a finding under
subsection (a)(2) (ii) that the child is unavailable as a witness,
the court must determine, based on evidence presented to it,
that testimony by the child as a witness will result in the child
suffering serious emotional distress that would substantially
impair the child’s ability to reasonably communicate. In making
this determination, the court may do all of the following:
(1) Observe and question the child, either inside or outside
the courtroom.
(2) Hear testimony of a parent or custodian or any other
person, such as a person who has dealt with the child in a
medical or therapeutic setting.
42 Pa.C.S.A. § 5985.1(a), (a.1).
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the language of the statute, requiring, according to Appellant, a specific
finding by the trial court that M.R. would suffer serious emotional distress if
she were to be ordered to testify in the courtroom. Because the trial court
failed to do so, Appellant concludes, the trial court erred in ordering M.R.
testifying from a room other than the courtroom.8
The Commonwealth specifically argued against M.R. testifying in the
courtroom, even if Appellant was not present, because Section 5985(a)9
____________________________________________
8
Appellant, on appeal, but not in his Rule 1925(b) statement, also argues
that the trial court’s decision not to order the victim to testify in the
courtroom violates Crawford. The issue was not raised below. Accordingly,
it is waived.
9
Section 5985, in relevant part provides:
(a) Contemporaneous alternative method.--Subject to
subsection (a.1), in any prosecution or adjudication involving a
child victim or a child material witness, the court may order that
the testimony of the child victim or child material witness be
taken under oath or affirmation in a room other than the
courtroom and transmitted by a contemporaneous alternative
method. Only the attorneys for the defendant and for the
Commonwealth, the court reporter, the judge, persons
necessary to operate the equipment and any person whose
presence would contribute to the welfare and well-being of the
child victim or child material witness, including persons
designated under section 5983 (relating to rights and services),
may be present in the room with the child during his testimony.
The court shall permit the defendant to observe and hear the
testimony of the child victim or child material witness but shall
ensure that the child cannot hear or see the defendant. The
court shall make certain that the defendant and defense counsel
have adequate opportunity to communicate for the purposes of
providing an effective defense. Examination and cross-
(Footnote Continued Next Page)
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expressly allows for a contemporaneous alternative method, and because
“[w]ith everybody wearing their uniforms and people wearing guns and all
pomp and circumstance that accompanies the formality of a courtroom, if
the child is intimidated by that and can’t do anything, then I’m dead in the
water.” N.T., 10/15/13, at 81. Despite the persuasive argument made by
the Commonwealth, the trial court gave Appellant the opportunity to provide
the trial court with authority supporting an order directing M.R. to testify in
the courtroom, as opposed to another room as provided for in the statute.
Notwithstanding this opportunity, it appears Appellant did not provide any
such authority. Eventually, the trial court stated: “Given [the court’s] ruling
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(Footnote Continued)
examination of the child victim or child material witness shall
proceed in the same manner as normally permitted.
(a.1) Determination.--Before the court orders the child victim
or the child material witness to testify by a contemporaneous
alternative method, the court must determine, based on
evidence presented to it, that testifying either in an open forum
in the presence and full view of the finder of fact or in the
defendant’s presence will result in the child victim or child
material witness suffering serious emotional distress that would
substantially impair the child victim’s or child material witness's
ability to reasonably communicate. In making this
determination, the court may do all of the following:
(1) Observe and question the child victim or child material
witness, either inside or outside the courtroom.
(2) Hear testimony of a parent or custodian or any other
person, such as a person who has dealt with the child victim
or child material witness in a medical or therapeutic setting.
42 Pa.C.S.A. § 5985(a), (a.1).
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on the tender years and [its] review of all proceedings and all of the
exposure that [the court] had with the juvenile and more importantly upon
review of the statute and any case law, [the court is] denying [Appellant]’s
request.” N.T. 10/15/13, at 159. Thus, the record belies Appellant’s
allegation that the trial court did not consider or address the negative impact
on the victim resulting from testifying in open court.
Furthermore, Appellant does not explain how he can now challenge the
trial court’s evidentiary ruling when he did not do so at trial. As noted
above, the trial court specifically stated it was open to reconsider its
evidentiary ruling upon Appellant providing authority for his position.
Apparently did not present any authority. Appellant cannot challenge now
what he should have challenged at trial. Evidentiary rulings must be
challenged at the time they are made. See Commonwealth v. Bryant,
855 A.2d 726, 740 (Pa. 2004) (citing Commonwealth v. Burkholder, 595
A.2d 59 (Pa. 1991)) (failure to raise contemporaneous objection to evidence
at trial waives claim on appeal).
In any event, even if we were to find appellant did in fact properly
challenge the evidentiary ruling, given the explanation provided by the trial
court in denying Appellant’s request,10 Appellant fails to articulate any
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10
Appellant argues there is “not a single scrap of testimony in the record,”
Appellant’s Brief at 32, that would support a finding that the victim/witness
would suffer from serious emotional distress that would substantially impair
(Footnote Continued Next Page)
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compelling argument how the trial court abused its discretion in ordering
M.R. testifying in a room other than the courtroom, given that the statute
specifically so provides.
Finally, Appellant argues the trial erred in not granting a new trial
because the verdict was against the weight of the evidence. Specifically,
Appellant argues the “evidence used to sustain to Appellant’s verdict was so
inherently unreliable and contradictory that the jury finding Appellant was
guilty [was] based on little more than pure conjecture.” Appellant’s Brief at
39. We disagree.
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. 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
_______________________
(Footnote Continued)
her ability to communicate should she have been ordered to testify in the
courtroom. Appellant, however, overlooks that the trial court’s decision on
whether to allow the witness to testify through alternative methods was
based, inter alia, on the trial court’s observations of, and interactions with,
the witness, and testimony given at the Tender Years hearing. See N.T.
10/15/13, at 159. This is consistent with the provisions 42 Pa.C.S.A.
§ 5985(a.1). While the trial court did not specifically state that testifying in
open court would result in the victim suffering from serious emotional
distress that would substantially impair her ability to communicate, its
reasoned denial of his request implies this much.
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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.
[Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)]
(emphasis added) [(internal citations omitted)].
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.
[Id.] (quoting [Coker v. S.M. Flickinger Company, Inc., 625
A.2d 1181, 1184-85 (Pa. 1993)]).
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).
Here, Appellant did not advance any argument on how the trial court
abused its discretion in not granting a motion for a new trial based upon a
weight of the evidence claim. Appellant merely challenges the jury’s
credibility determinations, which we cannot reweigh. See Commonwealth
v. DeJesus, 860 A.2d 102, 107 (Pa. 2004) (“The weight of the evidence is
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exclusively for the finder of fact, which is free to believe all, part, or none of
the evidence, and to assess the credibility of the witnesses. . . . This Court
cannot substitute its judgment for that of the [finder of fact] on issues of
credibility”) (citations omitted). “Because Appellant fails to address the
standard by which this Court reviews a weight of the evidence claim and
makes no effort to demonstrate an abuse of discretion by the trial court,”
Commonwealth v. Johnson, 985 A.2d 915, 926 (Pa. 2009), he is not
entitled to any relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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Com. v. Greene, M.
Combined Opinion