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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON PATRICK HARRINGTON :
:
Appellant : No. 565 MDA 2018
Appeal from the Judgment of Sentence December 15, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000656-2016
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.
JUDGMENT ORDER BY SHOGAN, J.: FILED OCTOBER 04, 2018
Jason Patrick Harrington, Appellant, appeals nunc pro tunc from the
judgment of sentence entered on December 15, 2017, following his conviction
by a jury of aggravated indecent assault (complainant less than sixteen years
of age) (count 1), unlawful contact with a minor (count 2), indecent exposure
(count 3), and corruption of minors (count 4).1
Appellant raises the following issues on appeal:
1. Whether the trial court abused its discretion in denying
Appellant’s post-sentence motion because the jury verdict was so
contrary to the weight of the evidence as to shock one’s sense of
justice where the Commonwealth failed to prove beyond a
reasonable doubt that the defendant intentionally, knowingly, or
recklessly sexually assaulted the victim in this case?
1 18 Pa.C.S. §§ 3125(a)(8), 6318(a)(1), 3127(a), and 6301(a)(1)(ii),
respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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2. Did the trial court abuse its discretion when it sentenced
Appellant within the sentencing guidelines but failed to account
for the rehabilitative needs of Appellant?
Appellant’s Brief at 7 (unnecessary capitalization and underline omitted).
Appellant first challenges the weight of the evidence. We have held that
“[a] motion for new trial on the grounds that the verdict is contrary to the
weight of the evidence, concedes that there is sufficient evidence to sustain
the verdict.” Commonwealth v. Rayner, 153 A.3d 1049, 1054 (Pa. Super.
2016) (quoting Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).
Our Supreme Court has described the standard applied to a weight-of-the-
evidence claim as follows:
The decision to grant or deny a motion for a new trial based upon
a claim that the verdict is against the weight of the evidence is
within the sound discretion of the trial court. Thus, “the function
of an appellate court on appeal is to review the trial court’s
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight of
the evidence.” An appellate court may not overturn the trial
court’s decision unless the trial court “palpably abused its
discretion in ruling on the weight claim.” Further, in reviewing a
challenge to the weight of the evidence, a verdict will be
overturned only if it is “so contrary to the evidence as to shock
one’s sense of justice.”
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations
omitted). “[W]e do not reach the underlying question of whether the verdict
was, in fact, against the weight of the evidence. . . . Instead, this Court
determines whether the trial court abused its discretion in reaching
whatever decision it made on the motion[.]” Commonwealth v.
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Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015) (citation omitted) (emphasis
added).
A challenge to the weight of the evidence must first be raised at the trial
level “(1) orally, on the record, at any time before sentencing; (2) by written
motion at any time before sentencing; or (3) in a post-sentence motion.”
Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). Appellant
preserved his challenge by raising the issue in a post-sentence motion and
including the issue in his Pa.R.A.P. 1925(b) statement.
The trial court failed to address the weight-of-the-evidence, asserting
that it lacked the necessary trial transcript to do so. Trial Court Opinion,
4/30/18, at 4. Accordingly, we are without the trial court’s rationale.
However, we note that the jury trial transcript is in the record certified to us
on appeal.
Because we are reviewing a decision based solely on the trial court’s
discretion, Ferguson, 107 A.3d at 213, “[our] review requires an explicit trial
court determination on the weight of the evidence[.]” Commonwealth v.
Ragan, 653 A.2d 1286, 1288 (Pa. Super. 1995). Accordingly, we are
constrained to remand and order the trial court to draft an opinion detailing
its decision and findings on Appellant’s challenge to the weight of the
evidence. Id. The trial court shall file its opinion within thirty days
from the date this Memorandum is filed. Rather than issue a piecemeal
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decision, we decline to address Appellant’s remaining claim at this time but
shall address both issues following remand.
Case remanded with instructions. Panel jurisdiction retained.
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Com. v. Harrington, J.
Combined Opinion