J-S46037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN CARTER                               :
                                               :
                       Appellant               :   No. 3284 EDA 2018

        Appeal from the Judgment of Sentence Entered October 25, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003765-2014


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED OCTOBER 07, 2019

        Appellant, Shawn Carter, appeals from the judgment of sentence of four

to eight years’ confinement, plus five years of probation, imposed following

his convictions for robbery, burglary, and possession of an instrument of a

crime.1 We affirm.

              The trial court summarized the evidence as follows:

              On February 15, 2014, Donald Hukins, a childhood
              friend of [A]ppellant, who knew [A]ppellant for
              twenty-five or so years and considered him to be a
              good friend, was asleep inside his residence, which
              was located in the 8000 block of Fayette Street in the
              East Mount Airy section of Philadelphia, when
              someone entered his residence without permission
              and began ransacking it. The invader, who Hukins
              testified he was unable to recognize, took
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118   Pa. C.S. §§ 3701(A)(ii), 3502(A)(1), and 907(A), respectively.
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          approximately $1000.00 in cash and some
          prescription Oxycodone and Xanax pills. He also
          overturned a bed situated on the floor of the residence
          while looking for money. The male fled soon after
          Hukins awoke.

          When the male left, Hukins called the police and his
          parents, the owners of the residence and related what
          just had occurred.       The police arrived shortly
          thereafter and arrested Hukins on an outstanding
          warrant. Once in custody, Hukins gave police a
          statement during the morning of the next day wherein
          he told police that [A]ppellant, who resided near
          Hukins residence, was the person who entered his
          residence and took his money and prescription drugs.

          Although Hukins did not dispute the contents of his
          statement, he testified [at the preliminary hearing and
          at trial] that [A]ppellant was not the person he saw
          inside his residence. He indicated that he had a
          problem with drugs and he may have given the police
          [A]ppellant’s name possibly because [A]ppellant and
          a couple of other men had visited him the night before
          and he lost money playing dice, which made him
          frustrated. He added that he may have been confused
          about the identity of the person who came into the
          residence when interviewed because he saw
          [A]ppellant the previous evening and he was under
          the influence of some medication when the home
          invasion occurred and also when he was interviewed.
          Although he did not recall giving the statement to
          police, he identified his signature on the written copy
          of his statement and also a color photograph of
          [A]ppellant that had been displayed to him during the
          police interview.

          Philadelphia   Police  Detective    Edward     Davis
          interviewed Hukins. At the time, the detective noted
          that although Hukins appeared to be angry, he was
          composed and coherent such that he understood what
          was being asked and able to answer the questions
          posed to him in an appropriate manner. Hukins also
          did not appear to be under the influence of any
          substance while being interviewed.       During the

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              interview, Hukins gave the following response to the
              detective when asked what had occurred inside the
              residence the previous evening:

                     The front door was unlocked. I was on the
                     first floor of the couch half asleep. I heard
                     the door open. Shawn Carter came in and
                     came over to me on the couch. He had a
                     silver semiautomatic handgun and he
                     pointed it at me. He then said, [“]Where
                     is the money?[“] He took the money I had
                     sitting on the table and he said, [“]Where
                     is the rest?[“] He told me to get up and
                     he took me upstairs. He went through my
                     room and more money. He flipped my
                     room and then he left.

                     N.T. 6/9/16, 48.

              The detective also testified that Hukins identified a
              photograph of [A]ppellant and gave police other
              names [A]ppellant used. Based on the information
              Hukins gave him, Detective Davis obtained a search
              warrant for [A]ppellant’s residence. On February 27,
              2014, police executed the warrant but did not recover
              any physical evidence related to the crime herein.


Trial Court Opinion, filed January 30, 2019, at 2-3. On November 12, 2018,

Appellant filed this timely direct appeal.2

       Appellant presents the following issue for our review:



____________________________________________


2 Appellant filed a post-sentence motion that was denied on March 7, 2017,
by operation of law. He did not file a notice of appeal following the denial of
his post-sentence motion, and on September 12, 2017, he filed a petition
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546,
which resulted in the issuance of a trial court order granting him right to file
a notice of appeal nunc pro tunc. He filed his statement of errors complained
of on appeal on January 22, 2019.

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            Did the Court improperly convict Appellant Carter
            where the verdict was contrary to the weight of the
            evidence at trial?

Appellant’s Brief at 2.

      We apply the following standard of review to a challenge to a trial court’s

determination 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 an 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 when the course
            pursued represents not merely an error of judgment,
            but where the judgment is manifestly unreasonable or

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            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).   For an appellant to prevail on a challenge to the weight of the

evidence, “the evidence must be so tenuous, vague and uncertain that the

verdict shocks the conscience of the court.” Commonwealth v. Rodriquez,

174 A.2d 1130, 1140 (Pa. Super. 2017) (quoting Commonwealth v.

Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

      Before this Court, Appellant contends that the trial court improperly

denied his post-sentence motion, and that the verdict was contrary to the

weight of the evidence produced at trial.       Appellant asserts that Hukins’

statement to the investigating detective identifying him as the perpetrator was

of poor quality and rendered unreliable, when contrasted with Hukins’

subsequent testimony at the preliminary hearing and at trial that he did not

believe Appellant committed the crime. Appellant challenges the reliability of

Hukins’ statement implicating him, especially given Hukins’ testimony at trial

that he was under the influence at the time of the interview and could not

remember all of its substance. Appellant’s Brief at 7. Appellant further argues

that Hukins had a motive for lying in the initial interview (Hukins testified that

he had lost money to Appellant on the previous evening) and a history of doing

so (citing Hukin’s 2009 conviction for making a false report to law

enforcement). Id.




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       After careful review, we conclude that the trial court committed no

abuse of discretion, and we find no basis to conclude that the law was not

properly applied, or that the verdict or the denial of the weight claim was a

result of partiality, prejudice, bias, or ill-will. See Clay, supra at 1055. The

trial court wholly rejected Hukins’ testimony at trial that he failed to recognize

Appellant, a good friend whom he had known all his life, when he entered the

residence.   Trial Court Opinion at 5.     Indeed, in contrast to the detailed

statement Hukins provided to the investigating detective, Hukins’ testimony

at trial was marked by its uncertainty and vagueness. Hukins testified that

he did not totally remember giving the statement to police that implicated

Appellant. Notes of Testimony (N.T.). at 25. When asked whether he knew

the person he awoke to find ransacking his home, Hukins responded, “not off

the top of my head, no,” and that he could not “really say” he knew who it

was.    N.T. at 10.   When asked whether the intruder spoke to him, he

responded that he could not remember. N.T. at 11.        When Hukins called the

police on the night of the incident, he gave them Appellant’s name, and in his

statement to the detective the following morning, Hukins described a silver

semiautomatic handgun that he stated Appellant had pointed at him; at trial,

Hukins testified he thought he saw a gun but was not sure, but that in any

event he had seen “something metal.” N.T. at 12. The trial court noted that

in his statement to the police, Hukins was able to list with certainty what was

taken from him and what occurred during the incident, and the passage of

time between the incident and the time of the police interview was sufficient

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time for the effects of any intoxicants he may have ingested to wear off. Trial

Court Opinion at 5.    The investigating detective testified that Hukins was

angry, but composed and sober when interviewed, more than eight hours after

the incident occurred, such that he was able to answer his questions

coherently, in an appropriate manner. N.T. at 45. The trial court properly

considered Hukins’ statement as evidence: a prior inconsistent statement may

be offered as substantive evidence if (i) it is given under reliable

circumstances; and (ii) the declarant is available for cross-examination.

Commonwealth v. Enix, 192 A.3d 78, 81 (Pa. Super. 2018) (citing

Commonwealth v. Lively, 610 A.2d 7, 9-10 (Pa. 1992); Pa. R.E. 803(1)).

Finally, the trial court considered Hukins’ admission that he abused drugs, as

well as his previous conviction for making false statements to authorities, and

was not persuaded that Hukins’ statement to the police was not truthful. Trial

Court Opinion at 6.

      As finder of fact, the trial court had sole discretion to assess the

credibility of the witnesses; here, the trial court wholly rejected Hukins’

preliminary hearing and trial testimony, and determined that the account

Hukins provided to the detective on the day after the incident was accurate.

“The weight of the evidence is exclusively for the finder of fact, who is free to

believe all, none[,] or some of the evidence and to determine the credibility

of the witnesses.”    Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa.

Super. 2015) (citation omitted).      Resolving contradictory testimony and

questions of credibility are matters for the finder of fact. Commonwealth v.

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Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000). The trial court acted within

its discretion by denying Appellant’s challenge to the weight of the evidence.

            Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/19




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