J-S35035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

HENRY J. SWARTSWELDER,

                          Appellant                   No. 272 MDA 2018


     Appeal from the Judgment of Sentence Entered September 6, 2017
              In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0001768-2016


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

CONCURRING MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 03, 2018

      I agree with the ultimate result reached by the Majority. However, I

depart from its analysis to the extent it suggests that Appellant cannot

challenge both the sufficiency and weight of the evidence underlying his

aggravated assault conviction, in particular the jury’s finding that he intended

to harm medical personnel. I specifically have concern with the Majority’s

statement that,
      a claim of insufficient evidence argues that there was no reliable
      evidence presented as to each element of the offense charged
      beyond a reasonable doubt; in contrast, a challenge to the weight
      of the evidence concedes that there was sufficient evidence to
      sustain the verdict. Commonwealth v. Widmer, 744 A.2d 745,
      751-52 (Pa. 2000). Here, in challenging the evidence of his intent
      to harm EMT Heffner, Appellant appears to concede there was
      sufficient evidence and in actuality revert[s] to a weight claim.
      See id.

Majority Memorandum at 4.
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       I interpret this statement to mean that, by contesting the weight of the

evidence, Appellant has necessarily conceded any related sufficiency claims.1

To me, such reasoning runs counter to numerous cases decided by this Court

where we have permitted appellants to simultaneously challenge both the

sufficiency and weight of the evidence.                  See, e.g., Commonwealth v.

Rayner, 153 A.3d 1049 (Pa. Super. 2016) (determining that neither the

appellant’s sufficiency or weight claims warranted relief); Commonwealth v.

Richard, 150 A.3d 504 (Pa. Super. 2016) (addressing the sufficiency and

weight      of    the       evidence        underlying   the   appellant’s   convictions);

Commonwealth v. Tejada, 107 A.3d 788 (Pa. Super. 2015) (contesting both

the sufficiency and weight of the evidence to support a finding that the

appellant        was    a    party     to    the   conspiracies   to   commit   robbery);

Commonwealth v. Fisher, 47 A.3d 155 (Pa. Super. 2012) (reviewing the

appellant’s sufficiency and weight claims); Commonwealth v. Chine, 40

A.3d 1239 (Pa. Super. 2012) (denying the appellant’s sufficiency and weight

claims regarding whether he acted with malice); Commonwealth v. Devine,

26 A.3d 1139 (Pa. Super. 2011) (alleging that the Commonwealth did not


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1 I note that the Majority does not appear to determine that Appellant’s
argument pertaining to his intent implicates only the weight of the evidence,
and not its sufficiency. See Commonwealth v. Griffin, 65 A.3d 932, 939
(Pa. Super. 2013) (recognizing that the appellant’s argument “goes to the
credibility of the witness’s testimony, and is, therefore, not an attack on the
sufficiency of the evidence, but an allegation regarding the weight it should
have been afforded”) (citation omitted).



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present sufficient evidence that the appellant acted with legal malice to sustain

his third degree murder conviction, and that the trial court’s finding that the

appellant had acted with malice was not so contrary to the evidence as to

shock one’s sense of justice).2

       Nevertheless, I would deny Appellant’s sufficiency arguments, and

conclude that the trial court did not abuse its discretion in rejecting his weight

claim. Accordingly, like the Majority, I would affirm Appellant’s judgment of

sentence.




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2 I recognize that our Supreme Court has stated 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.” Widmer,
744 A.2d at 751. Notwithstanding, I believe the Court made this statement
in the context of discussing the standard of review for weight claims and
distinguishing such claims from sufficiency issues. In doing so, I do not think
the Court intended to preclude parties from raising both sufficiency and weight
claims on appeal.

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