J-S73008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTIAN MANUEL HERNANDEZ :
:
Appellant : No. 651 MDA 2017
Appeal from the Judgment of Sentence March 3, 2014
In the Court of Common Pleas of Berks County Criminal Division at No(s):
CP-06-CR-0006106-2012
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED JANUARY 04, 2018
Appellant, Christian Manuel Hernandez, appeals from the judgment of
sentence entered on March 3, 2014, as made final by the denial of
Appellant’s nunc pro tunc post-sentence motion on March 20, 2017. We
affirm.
The trial court has provided us with an able and thorough summary of
the underlying facts of this case. As the trial court explained:
On the evening of December 10, 2012, [N.B.] was working
[as a pizza delivery driver for Domino’s Pizza, in Reading,
Pennsylvania; a] delivery order was placed by an individual
calling from a toll-free number. The Domino’s employee
who fielded the call requested another [telephone] number,
pursuant to company policy, which the customer provided.
[N.B.] drove to 522 Birch Street in Reading in order to
make the delivery [and N.B. arrived at the location
sometime between 8:45 p.m. and 9:00 p.m.] He then tried
to locate the individual who had placed the order[. As N.B.
testified at trial]:
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Q: [W]hat did you do when you arrived at the 500 block
of Birch Street?
A: When I arrived, I parked right by the fire hydrant.
Q: Okay.
A: I seen a little kid running to his door. I stuck my
head out, asked him if he ordered the pizza. He said no.
So then what I did is I called the phone number. As I’m
[calling], I see a gentleman [standing] on the step. I’m
[looking] at him while I am calling. I seen him pull
something out of his pocket. I’m [assuming] it was a
cell phone. He hit a button. As soon as he hit the
button, my phone stopped [ringing]. So I stuck my
head out the window, asked him did he order pizza. He
looks at me. He said, yeah, that was me.
Q: And where did you get this phone number that you
called?
A: They provided it to the person who picked up the
phone.
[N.T. Trial, 2/25/14, at 78-79.]
[N.B.] exited his car and approached the individual – who
[N.B.] identified as Appellant – in front of 522 Birch Street.
Appellant pulled some money out of his pocket, and [N.B.]
opened his warming bag to pull out the food that had been
ordered. Appellant reached to grab the pizza, and [N.B.]
pushed it away and told him, “no, I’ll get it for you.” At that
moment, another individual came up behind [N.B.] and put
a gun to the back of his head. . . . [N.B. testified that he
asked: “are you really going to rob me for some pizza?”
The individual behind him responded by saying, “no, we
want your dough.” Id. at 82-83.]
[N.B.] started turning around and felt somebody’s hands go
in his pockets. He saw that this individual was [Appellant.
Id. at 84]. [N.B.] saw a third individual approach them,
who was also toting a handgun. Appellant took [$15.00]
from [N.B.’s] pocket. [N.B.] got a good look at Appellant’s
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face during the incident, as the lighting was good and
Appellant stood right in front of him.
[N.B.] held the pizza bag in his left hand while keeping his
right hand visible, attempting to show that he was not going
to resist. While facing the [] gunman [who had originally
approached him from behind, N.B.] kneeled to remove a
pizza from the bag, assuming they also wanted to steal the
food. [N.B.] saw a flash and grabbed at the barrel of the
gun with his left hand. [N.B.] had sustained a gunshot
wound above his left chin and was bleeding profusely. He
jumped up to fight the gunman, trying to gain possession of
the handgun. During this struggle, [N.B.] heard the
gunman say, “stop, come back and help me.” [N.B.]
coughed up blood, lost all his energy, and went to sleep
with his head on the curb. Hearing the commotion, a
resident exited her nearby home; she saw two individuals –
including one in a red hoodie – running together
southbound down Birch Street. This neighbor also saw an
individual rummaging through [N.B.’s] vehicle, then run
away.
Subsequent investigations connected Appellant to the
incident. While recovering in his hospital bed, [N.B.]
identified Appellant from a photo array. Additionally, [N.B.]
provided an in-court identification of Appellant [and testified
that Appellant was the individual who wore “the red
[hooded sweatshirt] that [N.B.] described, the person who
[N.B.] had [his] initial contact with and the person that
went through [N.B.’s] pockets and took that [$15.00].” Id.
at 86.] Investigators also examined relevant cell phone
records. The local cellular number provided to Domino’s
was connected to a prepaid cell phone. That number also
placed calls to two individuals, who were later shown to
have familial and Facebook connections to Appellant.
Trial Court Opinion, 6/23/17, at 3-4 (some internal citations omitted).
At the conclusion of the trial, the jury found Appellant guilty of one
count each of aggravated assault, simple assault, theft by unlawful taking,
receiving stolen property, and disorderly conduct, five counts of robbery,
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and ten counts of conspiracy.1 N.T. Trial, 2/27/14, at 419-421 and 423-424.
The jury found Appellant not guilty of attempted murder and conspiracy to
commit murder. Id.
On March 3, 2014, the trial court sentenced Appellant to serve an
aggregate term of 234 to 720 months in prison, followed by one year of
probation, for his convictions.2 N.T. Sentencing Hearing, 3/3/14, at 17-18.
Appellant filed a timely notice of appeal and, on December 29, 2014, this
Court affirmed Appellant’s judgment of sentence. Commonwealth v.
Hernandez, 116 A.3d 702 (Pa. Super. 2014) (unpublished memorandum)
at 1-13. Within our memorandum, this Court held (among other things)
that Appellant’s discretionary aspect of sentencing and merger claims failed,
and that Appellant had waived his weight and sufficiency of the evidence
claims. See id.
As the trial court explained:
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 3921(a), 3925(a), 5503(a)(1),
3701(a)(1)(i)-(v), and 903(a)(1), respectively.
2 Specifically, the trial court sentenced Appellant to serve: 78 to 240
months in prison for aggravated assault; 78 to 240 months in prison for
robbery (to be served consecutively to Appellant’s sentence for aggravated
assault); 78 to 240 months in prison for conspiracy to commit robbery (to be
served consecutively to Appellant’s sentence for robbery); and, 12 months
of probation for disorderly conduct (to be served consecutively to Appellant’s
sentence for conspiracy to commit robbery). The trial court imposed no
further penalty for Appellant’s remaining convictions. N.T. Sentencing
Hearing, 3/3/14, at 17-18.
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Following the Superior Court’s decision, on October 9, 2015,
Appellant filed a [petition under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. § 9541-9546]. On December 12,
2016, counsel filed an amended petition and a hearing was
scheduled. Prior to [] the hearing, Appellant and the
Commonwealth entered [into] an agreement to permit
Appellant to file a limited appeal, concerning only the
sufficiency and the weight of the evidence. The [PCRA]
court ratified this agreement with an order [entered on]
March [9], 2017[; the order reinstated Appellant’s post-
sentence and appeal rights nunc pro tunc, for the limited
purpose of permitting Appellant to raise claims that the
verdict was against the weight of the evidence and that the
evidence was insufficient to support the verdict. PCRA
Court Order, 3/9/17, at 1]. Subsequently, Appellant filed a
post-sentence motion[, where Appellant claimed that the
verdict was against the weight of the evidence because the
victim, N.B., could not have “seen [Appellant] sufficiently
enough to be able to affirmative[ly] identify him as the
perpetrator.” Appellant’s Post-Sentence Motion, 3/24/17, at
3. The trial court] denied this motion on March 20, 2017.
Appellant then filed a[ notice of] appeal on April 18, 2017.
Trial Court Opinion, 6/23/17, at 1-2 (some internal capitalization omitted).
Appellant raises the following claims on appeal:3
[1.] Whether there was insufficient evidence to convict
Appellant of the offense of aggravated assault, 18 Pa.C.S.A.
§ 2702(a)(1), where no evidence was presented to support
the conclusion that Appellant caused or attempted to cause
serious bodily injury to the victim?
[2.] Whether there was insufficient evidence to convict
Appellant of the offense of simple assault, 18 Pa.C.S.A.
§ 2701(a)(1), where no evidence was presented to support
the conclusion that Appellant caused or attempted to cause
bodily injury to the victim?
____________________________________________
3 For ease of discussion, we have re-numbered Appellant’s claims on appeal.
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[3.] Whether there was insufficient evidence to convict
Appellant of the offense of robbery, 18 Pa.C.S.A. § 3701,
and theft by unlawful taking, 18 Pa.C.S.A. § 3921(a), where
no evidence was presented to support the conclusion that a
theft occurred in that no evidence was presented that
anything was taken from the victim during the alleged
incident?
[4.] Whether there was insufficient evidence to convict
Appellant of all counts of the offense of criminal conspiracy,
18 Pa.C.S.A. § 903(a)(1), where: (a) no evidence was
presented to support the conclusion that Appellant entered
into an agreement with any other individual or individuals to
commit one or more crimes, and (b) no evidence was
presented to support the conclusion that Appellant
committed an overt act in furtherance of any such
agreement?
[5.] Whether the trial court erred in denying Appellant’s
post-sentence motion where all of the verdicts were against
the weight of the evidence as it is contrary to justice to
believe that the jury found credibility in the testimony from
[N.B.] identifying Appellant as the perpetrator. . . .
Appellant’s Brief at 6-8 (some internal capitalization omitted).
Appellant’s initial claims concern the sufficiency of the evidence
supporting his convictions. With respect to any sufficiency of the evidence
claim:
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 [that of] the fact-finder. 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
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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 trier 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. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc) (internal quotations and citations omitted).
For Appellant’s first two claims on appeal, Appellant contends that the
evidence was insufficient to support his aggravated assault and simple
assault convictions because there was “no evidence [] to support the
conclusion that [Appellant] shot [N.B.;] . . . all of the evidence presented
established that the shooter acted alone and independent of any other
alleged assailant.” Appellant’s Brief at 25-26 (some internal capitalization
omitted).4 This claim fails.
____________________________________________
4 Appellant was convicted of aggravated assault under 18 Pa.C.S.A.
§ 2702(a)(1) and simple assault under 18 Pa.C.S.A. § 2701(a)(1). 18
Pa.C.S.A. § 2702(a)(1) declares:
(a) Offense defined.--A person is guilty of aggravated
assault if he:
(1) attempts to cause serious bodily injury to another,
or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme
indifference to the value of human life[.]
18 Pa.C.S.A. § 2702(a)(1).
(Footnote Continued Next Page)
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In relevant part, 18 Pa.C.S.A. § 306 declares:
(a) General rule.--A person is guilty of an offense if it is
committed by his own conduct or by the conduct of another
person for which he is legally accountable, or both.
(b) Conduct of another.--A person is legally accountable for
the conduct of another person when:
...
(3) he is an accomplice of such other person in the
commission of the offense.
(c) Accomplice defined.--A person is an accomplice of
another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other
person in planning or committing it; or
(2) his conduct is expressly declared by law to establish
his complicity.
(Footnote Continued) _______________________
Simple assault under 18 Pa.C.S.A. § 2701(a)(1) is defined as follows:
(a) Offense defined.--Except as provided under section
2702 (relating to aggravated assault), a person is guilty of
assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another[.]
18 Pa.C.S.A. § 2701(a)(1).
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(d) Culpability of accomplice.—When causing a particular
result is an element of an offense, an accomplice in the
conduct causing such result is an accomplice in the
commission of that offense, if he acts with the kind of
culpability, if any, with respect to that result that is
sufficient for the commission of the offense.
...
(g) Prosecution of accomplice only.--An accomplice may be
convicted on proof of the commission of the offense and of
his complicity therein, though the person claimed to have
committed the offense has not been prosecuted or
convicted or has been convicted of a different offense or
degree of offense or has an immunity to prosecution or
conviction or has been acquitted.
18 Pa.C.S.A. § 306. “It is well-established [] that a defendant, who was not
a principal actor in committing the crime, may nevertheless be liable for the
crime if he was an accomplice of a principal actor.” Commonwealth v.
Murphy, 844 A.2d 1228, 1234 (Pa. 2004), citing 18 Pa.C.S.A. § 306(g);
Commonwealth v. Bradley, 392 A.2d 688, 690 (Pa. 1978) (the actor and
his accomplice share equal responsibility for commission of a criminal act).
Furthermore, this Court has concluded:
Accomplice liability may be established wholly by
circumstantial evidence. Only the least degree of concert or
collusion in the commission of the offense is sufficient to
sustain a finding of responsibility as an accomplice. No
agreement is required, only aid.
Commonwealth v. Mitchell, 135 A.3d 1097, 1102 (Pa. Super. 2016)
(internal citations and quotations omitted).
Accordingly,
two prongs must be satisfied for a defendant to be found
guilty as an accomplice. First, there must be evidence that
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the defendant intended to aid or promote the underlying
offense. Second, there must be evidence that the defendant
actively participated in the crime by soliciting, aiding, or
agreeing to aid the principal. While these two requirements
may be established by circumstantial evidence, a defendant
cannot be an accomplice simply based on evidence that he
knew about the crime or was present at the crime scene.
There must be some additional evidence that the defendant
intended to aid in the commission of the underlying crime,
and then did or attempted to do so. With regard to the
amount of aid, it need not be substantial so long as it was
offered to the principal to assist him in committing or
attempting to commit the crime.
Murphy, 844 A.2d at 1234 (internal citations and quotations omitted).
Moreover, with respect to conspirator liability, our Supreme Court has
held:
To convict a defendant of conspiracy, the trier of fact must
find that: (1) the defendant intended to commit or aid in
the commission of the criminal act; (2) the defendant
entered into an agreement with another (a “co-conspirator”)
to engage in the crime; and (3) the defendant or one or
more of the other co-conspirators committed an overt act in
furtherance of the agreed upon crime. The essence of a
criminal conspiracy [] is the agreement made between the
co-conspirators.
As with accomplice liability, “[m]ere association with the
perpetrators, mere presence at the scene, or mere
knowledge of the crime is insufficient” to establish that a
defendant was part of a conspiratorial agreement to commit
the crime. There needs to be some additional proof that the
defendant intended to commit the crime along with his
[co-conspirator]. Direct evidence of the defendant's criminal
intent or the conspiratorial agreement, however, is rarely
available. Consequently, the defendant's intent as well as
the agreement is almost always proven through
circumstantial evidence, such as by the relations, conduct or
circumstances of the parties or overt acts on the part of the
co-conspirators.
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Commonwealth v. Murphy, 844 A.2d at 1238 (internal quotations and
citations omitted).
An en banc panel of this Court has declared:
Once there is evidence of the presence of a conspiracy,
conspirators are liable for acts of co-conspirators committed
in furtherance of the conspiracy. Even if the conspirator did
not act as a principal in committing the underlying crime, he
is still criminally liable for the actions of his co-conspirators
taken in furtherance of the conspiracy.
The general rule of law pertaining to the culpability of
conspirators is that each individual member of the
conspiracy is criminally responsible for the acts of his
[co-conspirators] committed in furtherance of the
conspiracy. The co-conspirator rule assigns legal culpability
equally to all members of the conspiracy. All co-conspirators
are responsible for actions undertaken in furtherance of the
conspiracy regardless of their individual knowledge of such
actions and regardless of which member of the conspiracy
undertook the action.
The premise of the rule is that the conspirators have formed
together for an unlawful purpose, and thus, they share the
intent to commit any acts undertaken in order to achieve
that purpose, regardless of whether they actually intended
any distinct act undertaken in furtherance of the object of
the conspiracy. It is the existence of shared criminal intent
that is the sine qua non of a conspiracy.
Commonwealth v. Lambert, 795 A.2d 1010, 1016–1017 (Pa. Super.
2002) (en banc).
Viewing the evidence in the light most favorable to the
Commonwealth, the evidence establishes that: Appellant lured N.B. to an
ambush under the false pretense of ordering a pizza; when N.B. showed up
to deliver the pizza, one of Appellant’s co-conspirators came up behind N.B.,
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held a gun to N.B.’s head, and demanded money on behalf of his group;5
Appellant took the money from N.B.’s pocket while the one co-conspirator
held a gun to N.B.’s head and while another co-conspirator circled N.B. with
a visible gun in hand; Appellant’s co-conspirator shot N.B. in the face; after
the co-conspirator shot N.B. in the face, N.B. struggled for the gun and
heard the gunman shout “stop, come back and help me;” and, when N.B.
finally succumbed to his injuries and “fell asleep” on the curb, Appellant’s co-
conspirator “rummage[ed] through [N.B.’s] vehicle [and ran] away.”
This evidence is sufficient to prove that Appellant and his two co-
conspirators entered into an agreement to lure N.B. to a specific location, in
order to rob and then shoot N.B. Indeed, the jury found Appellant guilty of
conspiracy to commit aggravated assault. See N.T. Trial, 2/27/14, at 423.
Therefore, Appellant is responsible for the commission of the offense, which
was the object of the conspiracy. Lambert, 795 A.2d at 1016–1017 (“All
co-conspirators are responsible for actions undertaken in furtherance of the
conspiracy regardless of their individual knowledge of such actions and
regardless of which member of the conspiracy undertook the action”).
Further, the evidence demonstrates that, at all times, Appellant
intended to – and did, in fact – act as the accomplice of the individual who
____________________________________________
5N.B. testified that the gunman told him “we want your dough.” N.T. Trial,
2/25/14, at 82-83 (emphasis added).
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shot N.B. Indeed, Appellant was the individual who telephoned Domino’s,
set up the ambush, acted as the front-man for the ruse, robbed N.B. of his
money, and stood in front of N.B. until Appellant’s accomplice finally shot
N.B. in the face. There is simply no merit to Appellant’s claim that the
evidence “established that the shooter acted alone and independent of any
other alleged assailant.” Appellant’s Brief at 25-26. Rather, the evidence
demonstrates that Appellant intended to and did, in fact, aid the principal in
causing N.B. serious bodily injury “under circumstances manifesting extreme
indifference to value of human life.” 18 Pa.C.S.A. § 2702(a)(1); see also
18 Pa.C.S.A. § 2701(a)(1). Appellant’s first two claims on appeal thus fail.
For Appellant’s third claim on appeal, Appellant argues that the
evidence was insufficient to support his robbery and theft by unlawful taking
convictions. According to Appellant, “there was insufficient evidence to
establish that [Appellant] deprived [N.B.] of any property as required by 18
Pa.C.S.A. § 3701 and § 3921 [because] no evidence was presented to
support the conclusion that [Appellant] had taken anything from [N.B.]
during the alleged incident.” Appellant’s Brief at 28.
Appellant’s claim immediately fails, as N.B. specifically testified that,
during the robbery, Appellant reached into his pocket and took $15.00 from
N.B.’s person. N.T. Trial, 2/25/14, at 84-86 (N.B. testified that Appellant
was “the person in the red hoody that [N.B.] described, the person who
[N.B.] had [his] initial contact with and the person that went through
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[N.B.’s] pocket and took that $15[.00]”). Therefore, Appellant’s third claim
on appeal fails.
Fourth, Appellant contends that the evidence was insufficient to
support his conspiracy convictions because: 1) “insufficient evidence was
presented at trial to establish [Appellant’s] presence at the scene” and 2)
“the testimony presented at trial was insufficient to establish an agreement
between [Appellant] and any of the alleged perpetrators.” Appellant’s Brief
at 31-32.
Appellant’s first sub-claim fails because N.B. testified that Appellant
was present at the scene and that Appellant, in fact, facilitated and
participated in the entire ambush, robbery, and shooting. Therefore, the
evidence was sufficient to prove Appellant’s presence at the scene.
Appellant’s second sub-claim – that there was insufficient evidence to
prove an agreement between Appellant and his co-conspirators – likewise
fails. As noted above,
Direct evidence of the defendant's criminal intent or the
conspiratorial agreement . . . is rarely available.
Consequently, the defendant's intent as well as the
agreement is almost always proven through circumstantial
evidence, such as by the relations, conduct or
circumstances of the parties or overt acts on the part of the
co-conspirators.
Murphy, 844 A.2d at 1238.
As we already explained, in the case at bar, the circumstantial
evidence is sufficient to prove that Appellant and his two co-conspirators
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entered into an agreement to rob and shoot N.B. See supra at **11-12.
Therefore, Appellant’s fourth claim on appeal fails.
Finally, Appellant claims that the verdict was against the weight of the
evidence because “it is contrary to justice to believe that the jury found
credibility in the testimony from [N.B.] identifying Appellant as the
perpetrator.” Appellant’s Brief at 6 and 16-22. This claim fails.
As our Supreme Court explained:
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. 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. 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.
It has often been stated that a new trial should be awarded
when the [factfinder’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.
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
evidence. One of the least assailable reasons for
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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.
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, [the Pennsylvania Supreme Court has]
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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations,
quotations, and emphasis omitted).
On appeal, Appellant claims that the jury’s verdict was against the
weight of the evidence because: when N.B. first parked on Birch Street, he
“could not have seen Appellant sufficiently enough to be able to
affirmative[ly] identify him as the perpetrator due to [three parked cars] . . .
in his line of sight . . . [and at a] distance of at least 20 feet;” when N.B.
approached Appellant, N.B. “could not have seen Appellant sufficiently
enough to be able to affirmative[ly] identify him as the perpetrator because
it was 9:00 p.m. on a winter’s night and the area was poorly lit;” and, “the
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description [N.B.] gave of his assailant differs drastically from the
description presented of Appellant’s appearance on the night of the offense.”
Appellant’s Brief at 6 and 18-22; Appellant’s Rule 1925(b) Statement,
5/9/17, at 1-2.
Appellant’s claim fails. As the trial court explained:
The weight of the evidence clearly demonstrates that the
identification of Appellant was reliable. Appellant was
identified by the victim in a photo array. Additionally, the
victim provided an in-court identification of Appellant. The
victim’s identification was credible because Appellant and
the victim stood right next to each other in good lighting,
when Appellant robbed him. Also, through circumstantial
evidence, cell phone records linked Appellant to the crime.
The cell phone used to call [Domino’s] was also used to call
two individuals, who were later shown to have familial and
Facebook connections to Appellant. As such, the guilty
verdicts, when weighed against the relevant law and against
the facts as elucidated above, do not reveal any partiality,
prejudice, bias or ill will, nor do the verdicts shock one’s
sense of justice.
Trial Court Opinion, 6/23/17, at 5.
We agree with the learned trial court’s cogent analysis and conclude
that the trial court did not abuse its discretion when it denied Appellant’s
weight of the evidence claim. Accordingly, Appellant’s final claim on appeal
fails.
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2018
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