J-S68032-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GLENN SIMINICK, :
:
Appellant : No. 319 WDA 2016
Appeal from the Judgment of Sentence January 22, 2016
in the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001805-2014
BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 16, 2016
Glenn Siminick (Appellant) appeals from the judgment of sentence
entered January 22, 2016, after he was found guilty of harassment. We
affirm.
The trial court summarized the facts as follows.
At trial, the Commonwealth called Roy Hamor [(Mr.
Hamor)], the alleged victim. Mr Hamor testified that on October
4, 2015, while he was driving to Circle K to get coffee, he saw
[Appellant] walking his dogs. As Mr. Hamor passed [Appellant],
[Appellant] looked at [Mr.] Hamor and made a throat slashing
motion three different times.
The incident occurred around 8:30 a.m. There was a
history of animosity between Mr. Hamor and [Appellant],
including prior throat slashing motions.
[Appellant] and his wife both testified on [Appellant’s]
behalf. They both denied the incident occurred and that the
incident could not have occurred at the time [Mr.] Hamor
testified to.
* Retired Senior Judge assigned to the Superior Court
J-S68032-16
Trial Court Opinion, 3/24/2016, at 2.
Appellant was found guilty of the aforementioned crime following a
non-jury trial on January 22, 2016. That same day, Appellant was
sentenced to pay costs and a $20.00 fine. Appellant timely filed a post-
sentence motion challenging the weight of the evidence, which the trial court
denied. Appellant then timely filed a notice of appeal.1
On appeal, it appears Appellant is raising claims challenging both the
weight and sufficiency of the evidence to sustain his conviction. To the
extent Appellant attempts to argue a sufficiency claim, we find it waived for
failure to properly preserve this issue in his 1925(b) statement. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). See also Commonwealth
v. Poncala, 915 A.2d 97, 100 (Pa. Super. 2006) (“[A]s a general rule, the
failure to raise an issue in an ordered Rule 1925(b) statement results in the
waiver of that issue on appeal.”).
In reviewing Appellant’s argument as a properly preserved weight
claim, we are mindful of the following.
The decision of whether to grant a new trial on the basis of a
challenge to the weight of the evidence is necessarily committed
to the sound discretion of the trial court due to the court’s
observation of the witnesses and the evidence. A trial court
should award a new trial on this ground only when the verdict is
so contrary to the evidence as to shock one’s sense of justice. A
motion alleging the verdict was against the weight of the
1
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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evidence should not be granted where it merely identifies
contradictory evidence presented by the Commonwealth and the
defendant. Our review on appeal is limited to determining
whether the trial court abused its discretion in denying the
motion for a new trial on this ground.
Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations
omitted). “Not merely an error in judgment, an abuse of discretion occurs
when the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence on record.” Commonwealth v. Handfield, 34
A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29
A.3d 3, 6 (Pa. Super. 2011)).2
With respect to its verdict, the trial court set forth the following.
the evidence presented by the Commonwealth is not even close
to being “so unreliable or contradictory as to make any verdict
based thereon pure conjecture or shook one’s sense of justice.”
There are clear conflicts between Mr. Hamor’s testimony and the
testimony of [Appellant] and his wife. Such conflicts are for the
finder of fact to resolve. This is what occurred in this case.
Trial Court Opinion, 3/24/2016, at 3. We discern no abuse of discretion in
the trial court’s conclusion. Because this was a non-jury trial, the verdict
clearly did not shock the trial court’s sense of justice. Furthermore, as the
trial court correctly observed, reconciling inconsistencies in the testimony
2
Appellant cites the following to support his argument that the verdict is
against the weight of the evidence: (1) inconsistences in Mr. Hamor’s
statement to police versus his testimony at trial; (2) documentary evidence
in the form of phone records that support Appellant’s version of events; and
(3) the Commonwealth’s failure to prove all elements of harassment beyond
a reasonable doubt. Appellant’s Brief at 12-14.
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was within the province of the fact-finder. Commonwealth v. Simmons,
662 A.2d 621, 630 (Pa. 1995) (“After examining the evidence in this case,
we find that appellant’s assertion that the inconsistencies in the witnesses’
testimony rendered them incredible to have no merit since the inaccuracies
claimed are only minor and a witness’s credibility is solely for the jury to
determine.”). Because we conclude the trial court did not abuse its
discretion, Appellant is not entitled to a new trial on this basis.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2016
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Com. v. Siminick, G.
Combined Opinion