J-A31037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ADRIAN SOLER, JR.,

                            Appellant                 No. 493 MDA 2015


            Appeal from the Judgment of Sentence January 8, 2015
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0002766-2013


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 05, 2016

        Appellant, Adrian Soler, Jr., appeals from the judgment of sentence

imposed pursuant to his jury conviction of kidnapping─intent to inflict bodily

injury or terrorize, false imprisonment, robbery of a motor vehicle, and

simple assault.1 We affirm.

        The above charges arose from a July 30, 2012 incident involving

Appellant and his ex-girlfriend, Monica Mozee.      On August 12, 2013, the

Commonwealth filed an information against Appellant. A one-day jury trial

commenced on December 10, 2014.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2901(a)(3), 2903, 3702(a), and 2701(a)(1), respectively.
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      At trial, Ms. Mozee testified that she and Appellant had been in a

romantic relationship, but had broken up by the time of the July 30, 2012

incident. That night, Ms. Mozee woke up at about 1:00 A.M. when Appellant

broke into her home through an unlocked window, entered her bedroom,

and said he wanted to talk. Ms. Mozee told Appellant that she did not want

to talk to him, and repeatedly asked him to leave. When he finally left her

bedroom and Ms. Mozee heard her back door open and close, she went

downstairs to confirm that Appellant actually had left. Ms. Mozee found him

hiding in the bathroom.

      Thereafter, Ms. Mozee told Appellant to leave again, but he shut the

bathroom door with the two of them inside, and blocked her from exiting.

Approximately one hour later, after Ms. Mozee convinced Appellant to let her

out of the room, she again told him to leave. Seeing Appellant would not

go, Ms. Mozee started screaming and he then grabbed her, dragged her

back into the bathroom, smacked her across the face, and threatened to

stomp on it if she did not quiet down.

      Ms. Mozee finally relented and told Appellant he could spend the night

downstairs while she slept upstairs.     She stated that she did not call the

police at that time because she was distraught and exhausted, and thought

she could get Appellant out on her own.

      When Ms. Mozee got up in the morning, Appellant still was in her

home, and she told him to leave, which he did. When she went out to her


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car to leave for work, she found him crouched behind the driver’s seat.

When Ms. Mozee again demanded that he leave, Appellant got out of the

car, but then prevented her from closing the driver’s side door, and pushed

his way into the driver’s seat, lifting her into the passenger’s seat. He then

started driving, and, when Ms. Mozee saw that he was going toward the

highway, she attempted to jump out of the car, but Appellant punched her in

the face and threatened to kill them both by flipping the vehicle.

      Ultimately, Ms. Mozee was able to escape from Appellant when she

convinced him to go to an Exxon gas station.        Ms. Mozee then called her

mother, who immediately called the police.         The car was recovered at

another gas station, which was owned by Appellant’s cousin.

      Ms. Mozee acknowledged there were some inconsistencies between

her testimony at trial and her testimony at the preliminary hearing that had

occurred the prior year. She also acknowledged that her statements to the

police did not contain all of the same details as those she gave at trial.

      Appellant testified on his own behalf and offered a version of events

that completely contradicted that offered by Ms. Mozee. At the conclusion of

trial, the jury convicted Appellant of the above-mentioned crimes.           On

January 8, 2015, the trial court sentenced him to an aggregate term of not

less than four nor more than eight years’ incarceration.       On January 16,




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2015, Appellant filed a post-sentence motion for a new trial2 based on the

weight of the evidence, and for modification of his sentence. On February

12, 2015, the court granted the motion to modify and amended the

sentence to an aggregate term of not less than three nor more than six

years’ incarceration. The court denied the post-sentence motion in all other

respects. Appellant timely appealed.3

       Appellant presents one issue for our review: “Whether the trial court

erred in denying Appellant’s post-sentence motion where Appellant’s

convictions were against the weight of the evidence as the victim’s

testimony was contradictory, conflicting, and inconsistent?”           (Appellant’s

Brief, at 4) (unnecessary capitalization and underline omitted).

             We review Appellant’s claim under the following standard of
       review:

                    A verdict is not contrary to the weight of the
              evidence because of a conflict in testimony or
              because the reviewing court on the same facts might
              have arrived at a different conclusion than the fact[-
              ]finder. Rather, a new trial is warranted only when
              the jury’s verdict is so contrary to the evidence that
              it shocks one’s sense of justice and the award of a
              new trial is imperative so that right may be given
____________________________________________


2
  Appellant also sought an arrest of judgment, which challenges the
sufficiency of the evidence. See Commonwealth v. Robinson, 33 A.3d
89, 94 (Pa. Super. 2011), appeal denied, 42 A.3d 292 (Pa. 2012). However,
he does not raise a sufficiency challenge here.
3
  Appellant filed a timely statement of errors complained of on appeal
pursuant to the court’s order. See Pa.R.A.P. 1925(b). The court filed an
opinion on April 16, 2015. See Pa.R.A.P. 1925(a).



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            another opportunity to prevail. Where, as here, the
            judge who presided at trial ruled on the weight claim
            below, an appellate court’s role is not to consider the
            underlying question of whether the verdict is against
            the weight of the evidence. Rather, appellate review
            is limited to whether the trial court palpably abused
            its discretion in ruling on the weight claim.

           One of the least assailable reasons for granting or denying a
      new trial is the lower court’s determination that the verdict was or
      was not against the weight of the evidence and that new process
      was or was not dictated by the interests of justice. Thus, only
      where the facts and inferences disclose a palpable abuse of
      discretion will the denial of a motion for a new trial based on the
      weight of the evidence be upset on appeal.

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014), cert. denied, 135

S.Ct. 1548 (2015) (citations omitted; emphasis in original).

      In this case, Appellant does not argue that the trial court palpably

abused its discretion in denying his motion for a new trial. (See Appellant’s

Brief, at 13-16).    He merely repeats his allegation that the verdict was

against the weight of the evidence because Ms. Mozee’s testimony was

“incredible.”   (Appellant’s Post-Sentence Motion, 1/16/15, at unnumbered

page 4; see Appellant’s Brief, at 14-16 (arguing that “his convictions were

against the weight of the evidence so as to shock one’s sense of justice

where    the    victim’s   testimony   was   unreliable,   contradictory,    and

inconsistent.”)). Therefore, “Appellant has failed to make an argument that

comports with the appropriate standard of review.” Morales, supra at 92.

      Moreover, our independent review of the record reveals that the trial

court properly observed that the jury weighed the testimony of Appellant


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against that of Ms. Mozee, and found her testimony more compelling than

his.   (See Trial Court Opinion, 4/16/15, at 11, 13).       The record is replete

with testimony from Ms. Mozee that her ex-boyfriend, (see N.T. Trial,

12/10/14,    at   61,   63),   Appellant,   entered   her   home   uninvited   and

unwelcome, (see id. at 62), refused to leave when asked, (see id. at 63-64,

68, 72-73, 81, 87), imprisoned her in her bathroom, (see id. at 72-75),

assaulted her, (see id. at 72, 74-79, 94, 103), kidnapped her in her own

vehicle, (see id. at 89-111), and abandoned her car with his cousin, (see

id. at 113, 182). Therefore, we can discern no palpable abuse of discretion

on the part of the trial court in denying Appellant’s motion for a new trial.

See Morales, supra at 92 (concluding that appellant’s weight of the

evidence claim failed where he did not argue that court palpably abused its

discretion and court properly viewed issue as one of credibility that jury

resolved in favor of victim). Appellant’s issue lacks merit.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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