J-A20002-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
REGINALD GOOD,
Appellant No. 308 WDA 2017
Appeal from the Judgment of Sentence Entered January 9, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011539-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 20, 2018
Appellant, Reginald Good, appeals from the judgment of sentence of 3
years’ probation, imposed following his conviction for possession of a firearm
prohibited, 18 Pa.C.S. § 6015. Appellant challenges the trial court’s denial of
his motion to suppress the seized firearm, the weight and the sufficiency of
the evidence presented at trial, as well as the trial court’s application of an
ostensibly erroneous definition of constructive possession. After careful
review, we affirm.
Due to the trial court’s failure to provide a detailed summary of the facts
in this case, we adopt the factual summary provided by the Commonwealth,
as we have determined that it accurately and comprehensively reflects the
content of the trial transcript:
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At approximately 6:30 p.m. on August 6, 2015, homicide
detective Steven Hitchings of the Allegheny County Police
convened with officers from the City of Pittsburgh Police and from
state parole in an attempt to locate and arrest Joshua Strayhorn,
an individual for whom there was an arrest warrant for
unauthorized use of an automobile and whom the officers also
wished to speak to with regard to an open homicide investigation.
Given that Strayhorn was on parole and wearing a GPS ankle
bracelet, the officers knew that he was on the city’s North Side in
the vicinity of Shadeland Avenue. A very short time later, police
received specific information from surveillance units that
Strayhorn had been seen entering a residence located at 2927
Shadeland. Officers proceeded to that location and surrounded
the house as Detective Hitchings knocked on the front door. The
door was answered by Cassandra Good, one of the co-defendants
in this matter. Detective Hitchings informed her that officers were
there to arrest Strayhorn, and Ms. Good allowed them into her
residence. Strayhorn then appeared in the kitchen/dining-room
area and was taken into custody.
Detective Hitchings asked Ms. Good for her permission to go
through the house, and she consented. Because Detective
Hitchings had been the first one in the door, he moved upstairs to
clear that area for officer-safety purposes while other officers went
down to the basement to make that particular area safe. While
upstairs, Detective Hitchings encountered a locked door. Ms.
Good, who had also come up to the second floor, provided
Detective Hitchings with a key to the lock. Detective Hitchings
proceeded to the third floor, where he observed a “mound” of
suspected cocaine in plain view on a bedroom dresser. Detective
Hitchings reported the presence of the cocaine to Pittsburgh
[P]olice [O]fficer Paul Abel and then left the scene.
While Detective Hitchings had gone upstairs, Pittsburgh
[P]olice [O]fficer Joseph Barna went to the basement to clear that
area of any possible persons for officer safety. There, Officer
Barna encountered Derrick Thompson, another co-defendant, who
was seated in a small recording studio that contained a computer
screen, some speakers and a small table area. Officer Barna
noticed a firearm inches in front of Thompson at the table. The
officer handcuffed Thompson for safety purposes and brought him
upstairs. As he walked Thompson up the basement stairs, Officer
Barna could see the extended magazine of another firearm
protruding from the ceiling above the steps; he also saw a blue
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plastic grocery bag sitting next to it, inside of which he was able
to observe several suspected bricks of heroin.
Officer Barna notified Officer Abel of his findings and took
him down to the basement to show him the location of the two
guns and the heroin. Officer Abel left to secure a search warrant
for the premises and returned at 8:26 p.m. after the warrant was
signed by a magistrate. In effectuating the warrant, Officer Barna
returned to the basement and recovered the Star .45-caliber
firearm that had been sitting on the table in front of Thompson
inside the recording studio; the gun was loaded with six .45-
caliber bullets as well as one in the chamber. He also recovered
from that table a purple “stun gun,” two digital scales and a small
amount of marijuana. Officer Barna then proceeded to retrieve
the black Beretta 9–millimeter that had been protruding from the
ceiling above the basement stairs—the gun was loaded with 28
rounds—and the five bricks of heroin that were next to it in the
blue grocery bag.2 Officer Jeffrey Tomer of the Pittsburgh Police,
who helped Officer Barna with the execution of the search warrant
in the basement, also found an additional eight bricks of heroin in
a different gap in the ceiling.
2The two firearms and the stun gun were all determined to
be operational.
After his search of the basement was concluded, Officer
Barna went up to search the third floor with Officer Abel and
discovered 10 bricks of heroin—500 stamp bags—under a pillow
in the same bedroom that Detective Hitchings had observed the
cocaine on top of the nightstand. Officer Abel seized the drugs,
as well as two brand-new Samsung flip phones that were also in
the bedroom. Indicia of residence for Reginald Good—Cassandra
Good’s son and [A]ppellant in this matter—was found in that same
bedroom, the most recent of which was a piece of mail
postmarked July 27, 2015, approximately 10 days before the date
in question. [A]ppellant had not been present at the time that the
search warrant was executed, but as Ms. Good was being escorted
to a police vehicle for transport, [A]ppellant came running down
the street, yelling, “Don’t take my ma. Take me. Take me[.”]
[A]ppellant was himself taken into custody at that point as well.
In total, nine cellphones were recovered from the entirety
of the residence, including one that was located in Ms. Good’s
purse. The purse, which had been located in the dining room, also
contained a napkin with marijuana inside of it. It was determined
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that Ms. Good had begun renting 2927 Shadeland Avenue about
three years earlier. A search of her second-floor bedroom
revealed nearly $7,500 in cash in one of the closets—it consisted
of 16 one-hundred-dollar bills, 16 fifties, 252 twenties and eight
ones. She told the officers that it was her “baby-sitting money.”
In total, the police recovered 1,153 stamp bags of heroin from the
residence. The Commonwealth’s expert, Sergeant Neal Marabello
of the Pittsburgh Police, concluded that such a large quantity of
drugs, when considered in relation to the large amount of money
that was found inside the house, the firearms and the nine
cellphones, was possessed not for personal use but, rather, for
the purpose of sale. [A]ppellant was a person not to possess a
firearm as a result of two prior felony drug convictions, including
a May 2005 federal conviction for conspiracy to distribute heroin.
Commonwealth’s Brief at 2-7 (footnote and citations omitted).
The Commonwealth charged Appellant at CP-02-CR-0015858-2015
(“15858-2015”) with two counts of person not to possess a firearm, 18 Pa.
C.S. § 6105(a)(1); one count of possession with intent to deliver a controlled
substance, 35 P.S. § 780-113(a)(30); two counts of possession of a controlled
substance, 35 P.S. § 780-113(a)(16); and one count of possession of a small
amount of marijuana, 35 P.S. § 780-113(a)(31). Appellant joined his co-
defendant/mother, Ms. Good, in filing a motion to suppress the seized
contraband. The trial court held the suppression hearing on May 16, 2016.
The trial court denied that motion just prior to trial, which began on September
28, 2016.
Prior to trial, the Commonwealth withdrew one of Appellant’s firearm
counts1 as well as the marijuana charge. The trial court tried Appellant jointly
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1Thus, Appellant was tried only for the firearm that was located in the ceiling
above the basement stairs, and not for the firearm discovered next to Mr.
Thompson.
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with his co-defendants, Ms. Good and Mr. Thompson. The parties agreed to
sever Appellant’s firearm charge from his drug charges; as such, Appellant
was tried non-jury for the firearm offense at CP-02-CR-0011539-2016
(“11539-2016”), but proceeded simultaneously to a jury trial for the remaining
counts at 15858-2015. On October 3, 2016, the final day of trial, the trial
court found Appellant guilty of the firearm offense at 11539-2016, while the
jury acquitted him of all counts at 15858-2015. On January 9, 2017, the trial
court sentenced Appellant to 36 months’ probation.
Appellant filed a timely, omnibus post-sentence motion on January 17,
2017. The motion both sought judgment of acquittal based on the
insufficiency of the evidence, and set forth a claim for a new trial based on the
weight of the evidence. The trial court denied the motion for a new trial on
January 25, 2017, and denied the outstanding motion for judgment of
acquittal on February 2, 2017. Appellant then filed a timely notice of appeal
on February 15, 2017. He also filed a timely, court-ordered Pa.R.A.P. 1925(b)
statement on April 10, 2017. The trial court issued its Rule 1925(a) opinion
nearly a year later, on February 22, 2018.
Appellant now presents the following questions for our review:
I. Whether the trial court erred in admitting evidence seized
from Appellant’s mother’s home pursuant to an unlawful and
unconstitutional entry into the residence followed by an
improper and unauthorized search?
II. Whether the Commonwealth presented insufficient evidence
to prove beyond a reasonable doubt that Appellant
possessed a firearm?
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III. Whether the trial court erred when it applied a defin[i]tion
of “possession” and/or “constructive possession” that is not
recognized by law?
IV. Whether Appellant’s conviction was against the weight of
the evidence?
Appellant’s Brief at 11 (unnecessary capitalization omitted).
Appellant first asserts that the trial court should have suppressed the
seized contraband as the fruit of an unconstitutional entry and search of his
mother’s home. Appellant concedes that the police ultimately obtained a
search warrant, however, he claims that the search warrant was obtained
based the police’s “observations of weapons during their initial and unlawful
entry into to the house.” Id. at 25. Appellant acknowledges that police
initially entered the house pursuant to an arrest warrant. Yet, the police
quickly apprehended the target of that warrant upon entry, and before they
discovered any contraband. Appellant argues that the subsequent protective
sweep by the police was not justified given that they had already seized the
target of the arrest warrant and, therefore, any reasonable fear for their safety
contemporaneously subsided. Id. at 28. Alternatively, Appellant contends
that, even if were reasonable for the police to conduct a protective sweep in
the immediate vicinity of the arrest, it was not reasonable to search the
basement and third floor.
The trial court found that that the discovery of the contraband in
question by police was lawful pursuant to the protective sweep exception to
the warrant requirement, and because Ms. Good consented to that search.
Trial Court Opinion (“TCO”), 2/22/18, at 4-5. In its brief to this Court, the
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Commonwealth focuses its argument on Ms. Good’s consent, seemingly
abandoning the protective sweep justification offered by the trial court. The
Commonwealth contends that Ms. Good first verbally consented to the police’s
search of her home for the fugitive Joshua Strayhorn. Commonwealth’s Brief
at 19.
Another panel of this Court, in Commonwealth v. Cassandra Good,
No. 229 WDA 2017, unpublished memorandum at 7-17 (Pa. Super. filed
October 31, 2018), held that the search conducted after Joshua Strayhorn was
apprehended was not justified as a protective sweep, id. at 10-12, but that it
was lawfully conducted pursuant to Ms. Good’s consent, id. at 13-17. We are
compelled to follow that decision under the law of the case, as Appellant’s
suppression claim is identical to the claim addressed in that decision.2 Indeed,
Appellant joined Ms. Good’s suppression motion at the suppression hearing.
See N.T. Suppression, 5/16/16, at 20.
As noted by the panel in Cassandra Good, the consent-to-search issue
turned on the credibility determinations made by the trial court. Cassandra
Good, No. 229 WDA 2017 at 15-16. Detective Hitchings testified that verbal
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2 “An unpublished memorandum decision shall not be relied upon or cited by
a Court or a party in any other action or proceeding, except that such a
memorandum decision may be relied upon or cited (1) when it is relevant
under the doctrine of law of the case, res judicata, or collateral estoppel, and
(2) when the memorandum is relevant to a criminal action or proceeding
because it recites issues raised and reasons for a decision affecting the same
defendant in a prior action or proceeding.” 210 Pa. Code § 65.37 (Internal
Operating Procedures of the Superior Court of Pennsylvania) (emphasis
added).
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consent was given by Ms. Good to search the rest of her home. He stated
that, at the time, Ms. Good “was cordial and respectful and understanding,
and she allowed us to continue to search the residence for other people.” N.T.
Suppression at 54.
Although … the court did not set forth specific credibility
determinations, it is evident the court found the testimony of
Detective Hitchings credible because the court concluded [Ms.]
Good “was asked if police could go through her home, and she
approved without objection.” Trial Court Opinion, 6/22/2017, at
4. [Ms.] Good, herself, testified the detective never asked for her
consent to search, but rather, after the officer took Strayhorn out,
“[a]ll of them” entered her home and began to look around. N.T.
[Suppression] at 93. By concluding Good verbally consented to
the search, the court necessarily credited Detective Hitchings’
testimony. Based upon our standard of review, we are bound by
this factual finding.
Cassandra Good, No. 229 WDA 2017 at 15-16. Accordingly, we conclude
that Appellant’s suppression claim lacks merit.
Appellant’s second and third claims are related. Appellant asserts that
there was insufficient evidence to convict him of possession of a firearm. The
firearm in question was found in the ceiling between the basement and the
first floor in the vicinity of co-defendant Derrick Thompson, whereas the
indicia of Appellant’s residency was found in a locked room on the third floor.
Appellant also claims that, in finding the evidence of possession of a firearm
to be sufficient, the trial court erred by utilizing an incorrect definition of
‘constructive possession.’
Our standard of review of sufficiency claims is well-settled:
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A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention to
human experience and the laws of nature, then the evidence is
insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
The at-issue firearm was not found in Appellant’s immediate possession.
However, Appellant concedes that a conviction for a possession offense may
be predicated on the concept of ‘constructive possession.’ Appellant’s Brief at
33.
Constructive possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement. Constructive
possession is an inference arising from a set of facts that
possession of the contraband was more likely than not. We have
defined constructive possession as “conscious dominion.” We
subsequently defined “conscious dominion” as “the power to
control the contraband and the intent to exercise that control.” To
aid application, we have held that constructive possession may be
established by the totality of the circumstances.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quoting
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004)).
Nevertheless, Appellant argues that the Commonwealth failed to prove
constructive possession because
the facts of the case establish no evidence that supports
Appellant’s conviction[]: the firearm in question was found located
in an opening between the ceiling of the basement and the floor
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of the first floor in a stair well leading to the basement; at the
time police made entrance to the residence, three adults and two
juvenile teenage males were present, including Joshua Strayhorn,
a man wanted for questioning in connection to a homicide and
[who,] importantly, emerged from the area in which the firearm
was found; that a large amount of indicia for Darwin Good was
found at the residence, although he was not present at the time
the police were present; that a second firearm was found within
inches of Derek Thompson in the basement of the residence; that
at the time police made entrance to the residence, Appellant was
not present; that Appellant arrived at the residence approximately
three hours after the police had made contact with the residence;
that upon Appellant’s arrival and seeing his disabled mother being
arrested, [Appellant] yelled[,] “Don't take my ma, take me, take
me[;”] that five unopened pieces of mail addressed to Appellant
were found in a third-floor bedroom; that other than the five
pieces of mail, no other evidence produced suggested Appellant
lived … or resided at the residence; that an amount of heroin and
cocaine was found in the same third floor bedroom as the five
pieces of mail; that all individuals present at the time of police
contact had access to the entirety of the residence[,] especially
the area in which the firearm was located; and that at the time
police were present, Appellant had no ability to access the
residence.
Appellant’s Brief at 34-35.
The trial court’s analysis of Appellant’s sufficiency claim is negligible.
The court merely states that it “was satisfied that [Appellant] unlawfully
possessed the firearms located in the basement of the residence.” TCO at 6.3
Nevertheless, the Commonwealth insists that the evidence was sufficient to
establish Appellant’s constructive possession of the firearm. Essentially, the
Commonwealth contends that Appellant’s constructive possession of the
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3 In its Rule 1925(a) opinion, the court did recite facts that were sufficient to
establish Appellant’s residence in the home, and his status as a person unable
to lawfully possess a firearm. Lacking, however, was any significant analysis
of why or how constructive possession principles applied in the circumstances
of this case. The court also failed to cite any case law in support of its decision.
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firearm was supported by evidence linking him to the heroin distribution
operation that was occurring at 2927 Shadeland Avenue. First, the evidence
supported the conclusion that Appellant resided in the home, as five pieces of
his mail were found in the third-floor bedroom. Second, in that same
bedroom, police discovered 10 bricks of heroin and two cellphones. Third, the
firearm found in the basement ceiling was discovered right next to five
additional bricks of heroin. Finally, the Commonwealth believes that
Appellant’s statement to police when he arrived, taken in a light most
favorable to the prosecution, constituted an admission of his involvement in
the drug-distribution operation. Based on the totality of these circumstances,
the Commonwealth argues that there was sufficient evidence to establish
Appellant’s constructive possession of the firearm because the evidence
supported his participation in the drug-distribution operation.
Appellant cites Commonwealth v. Boatwright, 453 A.2d 1058 (Pa.
Super. 1982), in support of his claim. In Boatwright, police responded to a
tip about three suspicious men in an automobile. When they arrived on the
scene, they observed the defendant in the front passenger seat. There were
two other individuals present in the vehicle, one located in the driver’s seat
and the other in the back seat. Police observed the defendant’s body moving
to the left-rear of the vehicle, where, soon thereafter, they discovered a
firearm. The defendant was convicted of a firearm offense based on his
constructive possession of that firearm. We reversed, reasoning:
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Because the firearm was not found on [Boatwright’s]
person, he could properly be convicted only if the Commonwealth
proved joint constructive possession with the other occupants of
the vehicle. To do this, the Commonwealth must present evidence
to show that [Boatwright] had both the power to control the
firearm and the intent to exercise that control. Mere presence at
the scene where the gun was found is not sufficient. The only
evidence other than mere presence was [an officer’s] testimony
that [Boatwright] made a movement toward the left rear of the
vehicle. This evidence cannot provide proof beyond a reasonable
doubt that [Boatwright constructively] possessed the firearm in
question.
Boatwright, 453 A.2d at 1059 (citations omitted).
We agree with the Commonwealth that Boatwright is not controlling in
this instance. Simply put, the facts of that case are not analogous to the
instant matter. Instead, we agree with the Commonwealth that the instant
case is more akin to the (relatively) more recent case of Commonwealth v.
Santiesteban, 552 A.2d 1072 (Pa. Super. 1988). In Santiesteban, police
searched the defendant’s home pursuant to a warrant. The defendant was
located in a second-floor bedroom near large amounts of cash found in a
briefcase, a closed metal box, and his pants. On the first floor, police
discovered an ounce of cocaine and distribution paraphernalia (plastic
baggies, a scale, and a grinder with cocaine residue). Other evidence
established that two other men had equal access to the first floor. One of
those men testified that he and the other man had used the first floor to shoot
up cocaine in the four weeks prior to the search, and that the defendant had
just moved into the house.
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This Court upheld Santiesteban’s conviction for possession of the
cocaine on constructive possession principles, reasoning that the defendant
“had both access and control of the first floor where the contraband was found.
From this, as well as other circumstantial evidence, including the large amount
of cash in [his] bedroom, the jury could infer constructive possession even
though evidence directly connecting the defendant with the contraband is
lacking.” Santiesteban, 552 A.2d at 1075.
Here, Appellant’s connection to the third-floor bedroom was established
through his mail. Moreover, the presence of heroin and two cellphones in that
room linked him to the other heroin found in the same home, and, by
extension, the firearm found next to the heroin hidden in the basement ceiling.
It can be reasonably assumed that Appellant’s residence on the third floor,
and the fact that his mother rented the home, gave him equal access to the
basement, establishing his power to control that firearm. The evidence linking
Appellant to the heroin distribution operation further demonstrated that he
had the intent to control the firearm – that is, a reasonable inference could be
drawn, from his participation in that illegal enterprise, that he was both aware
of the firearm to which he had equal access (power to control), and that he
intended to possess it in furtherance of that operation (intent to exercise
control). See Brown, supra. Thus, we conclude that the totality of the
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circumstances in this case provided sufficient evidence to convict Appellant of
18 Pa.C.S. § 6105 based on a theory of constructive possession.4,5
With regard to Appellant’s assertion that the trial court applied an
incorrect definition of constructive possession, we deem this issue moot given
our above determination that the evidence was sufficient to establish his
constructive possession of the firearm under the correct definition of that
standard, and the precedent set by Santiesteban. Appellant’s status as a
person not to possess a firearm is not a relevant circumstance or factor in
determining whether he constructively possessed the at-issue weapon.
However, the evidence was sufficient to establish his constructive possession
of that firearm in the absence of that erroneous assumption. Accordingly,
Appellant is not entitled to relief on that basis.
Finally, Appellant contends that his conviction was against the weight of
the evidence and, therefore, the trial court abused its discretion by denying
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4 We decline to address the Commonwealth’s assertion that Appellant’s
statement to police upon his arrival constituted an admission of guilt. Rather,
we conclude that the evidence was sufficient to establish his constructive
possession of the firearm without that evidence.
5 We recognize that this theory of guilt appears to be incompatible with the
jury’s verdict, since the jury acquitted Appellant of all drug-related charges.
However, the trial court’s role as factfinder with respect to the firearm offense
was not constrained by the jury’s verdict. See Commonwealth v. Miller, 35
A.3d 1206, 1213 (Pa. 2012) (reaffirming that “even where two verdicts are
logically inconsistent, such inconsistency alone cannot be grounds for a new
trial or for reversal”).
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his post-sentence motion for a new trial on that basis. We apply the following
standard of review to a challenge that a verdict is against the weight of the
evidence:
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 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, 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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations
omitted).
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We ascertain no abuse of discretion in the trial court’s decision to deny
Appellant’s motion for a new trial based on the weight of the evidence. We
acknowledge that the evidence of Appellant’s guilt in this case was far from
overwhelming; however, an abuse of discretion is not established merely
because this Court might have drawn different inferences or reached a
different conclusion than the trial court when presented with the same facts.
Id. (“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.”). Thus, Appellant’s final claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2018
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