J. S45026/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
SHANE LENELL MCCROMMON                     :
         Appellant                         :
                                           :     No. 1749 WDA 2015

              Appeal from the Judgment of Sentence July 13, 2015
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0004830-2013

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
SHANE LENELL MCCROMMON                     :
         Appellant                         :
                                           :     No. 1750 WDA 2015

              Appeal from the Judgment of Sentence July 13, 2015
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0005377-2014


BEFORE: OLSON, DUBOW AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                           FILED AUGUST 10, 2016

        Appellant, Shane Lenell McCrommon, appeals from the Judgment of

Sentence entered in the Court of Common Pleas of Westmoreland County on

July 13, 2015. We affirm.



*
    Retired Senior Judge Assigned to the Superior Court.
J.S45026/16

        On October 24, 2013, the Commonwealth charged Appellant with one

count each of Third Degree Murder and Aggravated Assault1 arising from the

death of Jeffrey Edwards (the “Victim”).         On November 4, 2014, in a

separate criminal information, the Commonwealth charged Appellant with

Criminal     Solicitation-Hindering   Prosecution,2   alleging   that   Appellant

attempted to solicit two people to contact proposed Commonwealth

witnesses to prevent or alter their testimony at Appellant’s trial on the

Murder and Aggravated Assault charges. The trial court consolidated these

cases for purposes of trial.

        On March 30, 2015, at Appellant’s Pre-Trial Conference, his counsel

filed a Motion for Continuance, which the trial court denied.               Trial

commenced on April 7, 2015.           Prior to empaneling the jury, Appellant’s

counsel again moved for a continuance in order to obtain an expert witness.

The trial court likewise denied this Motion, although the court permitted

Appellant to contact an expert witness if so desired. Appellant also filed a

Motion in Limine prior to the commencement of trial seeking to suppress

letters the Commonwealth sought to use as evidence in support of its

Hindering Prosecution charge, which the trial court also denied.

        On April 13, 2015, a jury convicted Appellant of the above charges.

On July 13, 2015, the trial court sentenced Appellant to a term of 20 to 40

1
    18 Pa.C.S. § 2502(c) and § 2702(a)(1), respectively.
2
    18 Pa.C.S. § 902(a).



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years’ incarceration for the Murder conviction3 and a concurrent sentence of

two to four years’ incarceration for the Criminal Solicitation-Hindering

Prosecution conviction.   Appellant timely filed a Post-Sentence Motion on

July 22, 2015, which the trial court denied on October 16, 2015. This timely

appeal followed.

     The trial court set forth the facts as elicited at trial as follows:

        Facts at trial showed that [Appellant] was angry with [the
        Victim] because [the Victim] was supposed to be selling
        drugs for [Appellant], but instead was diverting customers
        to other drug dealers. On June 25, 2012, [the Victim]
        appeared at a residence located at 1005 Victoria Avenue in
        New Kensington, PA.      Present at that time were Lisa
        Schreckengost, Michelle Monfredi [ ,] and Takayla Witcher.
        At approximately 11:30 p.m., [Appellant], who had arrived
        somewhat earlier asked Ms. Schreckengost to get [the
        Victim], who was located in the back bedroom of the
        apartment. [The Victim] entered the front bedroom and
        was confronted by [Appellant]. Ms. Schreckengost heard
        thumping sounds and when she entered the room,
        observed [Appellant] kicking [the Victim] in the side and in
        his face. He was unconscious and gasping for air. The
        confrontation and beating lasted 7-10 minutes.

        Michelle Monfredi heard grunting and groaning indicative of
        someone being beaten.        The altercation lasted 5-10
        minutes. After [Appellant] left the home, she observed
        that [the Victim’s] face was bloody, he was unconscious
        and groaning and “not in there.”

        Takayla Witcher[ ], also present, heard [Appellant] accuse
        [the victim] of “backdooring” him and saw him strike [the
        Victim] in the face. The beating continued despite the fact
        that after the first punch [the Victim] fell to the floor.
        After the beating ceased, Ms. Witcher noted that [the

3
  The Assault conviction merged for the purposes of sentencing.             N.T.
Sentencing, 7/13/15, at 19.



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       Victim] did not move and was gasping for air. Despite
       efforts to revive him, he remained slumped on the floor.
       She noted his lip and head were bleeding and his body
       limp. No ambulance was called.

       The following day, June 27, 2012, Raymond Nelson was
       contacted and asked to take [the Victim] to the hospital.
       He proceeded to the second floor of 1005 Victoria Avenue
       and observed [the Victim] lying under the window in the
       corner of the bedroom. [The Victim] had defecated and
       urinated on himself and was unconscious. Mr. Nelson
       rolled him onto a blanket, carried him to his car, and took
       him to the Emergency Room at Citizens Hospital. Medical
       personnel were told that [the Victim] was found at the
       bottom of a stairway.

       Nurse Leighanne Saliba, and Emergency Room nurse at
       Citizens, testified that at 2:20 p.m. on June 27, 2012, she
       assisted in removing [the Victim] from a vehicle. He was
       unconscious, with bruising on both temporal areas of his
       face, had a small lip laceration and only responded to
       painful stimuli.      She characterized his appearance as
       decerebrate, his arms extended and palms pointing
       outward, indicative of a brain injury. His condition was
       critical and Life Flight was summoned and transported him
       to Allegheny General Hospital.

       [The Victim] underwent surgery on July 3, 2012 for
       herniated cervical disks and spinal cord trauma.           An
       electroencephalogram revealed a severe cortical brain
       injury. Cheryl Edwards, [the Victim’s] sister, testified that
       she visited her brother at Allegheny General Hospital and
       later at Forbes Nursing Facility until his death on
       November 9, 2012.        Her brother never spoke and
       remained curled in a fetal position. He was fed from a
       feeding tube and breathed through a trachestomy tube.

       Dr. Cyril Wecht performed an autopsy and determined that
       the immediate cause of death was pneumonia.          The
       underlying    cause    of  death    was     posttraumatic
       encephalopathy due to severe concussive forces.

       [Appellant] was arrested. While incarcerated he wrote
       letters to his girlfriend, Noel Bridges, instructing her to


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         contact Takayla Witcher and Jason Jackson and to tell
         them that if questioned by police, they should “play dumb”
         and deny being present during the beating. A letter was
         also given to Janelle Houser during her transport to a
         magistrate’s office on November 13, 2014. Ms. Houser
         was incarcerated with Michelle Monfredi.        The letter,
         Exhibit 38, instructed Ms. Houser to find out what [Ms.
         Monfredi] intended to do.      This letter was signed by
         [Appellant] and turned over to Detective Klein.

         Testimony was also provided by Shane DelGrosso, an
         inmate in the Clearfield County Jail. Mr. DelGrosso stated
         that [Appellant] told him that he had beat someone up
         because he owed him money and guessed that he killed
         him.

         In defense, [Appellant] presented the testimony of Sheth
         Houser who stated that he spent June 26-27, 2012, with
         Takayla Witcher.

Trial Ct. Op., 10/16/2015, at 1-4.

      Appellant raises the following six issues on appeal:

         1. The Court of Common Pleas abused its discretion in
         allowing into evidence letters purported to have been
         written by Appellant which could not properly be
         authenticated due to a lack of a known sample letter
         written by the Appellant, over the pre-trial objection of
         Appellant’s counsel.

         2. The Court of Common Pleas abused its discretion in
         denying Appellant a continuance in order to better assist
         counsel in preparing a defense, to allow counsel more time
         to contact witnesses, and to appoint an expert witness in
         order to determine the actual cause of the victim’s death.

         3. The Court of Common Pleas abused its discretion when
         it denied Appellant’s request for an involuntary
         manslaughter jury instruction, which was appropriate
         given the facts and circumstances of the case.

         4. The Court of Common Pleas erred in denying Appellant’s
         Post-Sentence Motions based on the uniformly [c]aucasian


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         jury selected at trial, which was an unfair representation of
         Appellant’s peers.

         5. The Court of Common Pleas erred in denying Appellant’s
         Post-Sentence Motions as the evidence presented at trial
         was not sufficient to convict the Appellant of the crimes
         charged.

         6. The Court of Common Pleas erred in denying Appellant’s
         Post-Sentence Motions as the jury verdict was against the
         weight of the evidence, such as to shock one’s sense of
         justice.

Appellant’s Brief at 2.

      Appellant first challenges the trial court’s denial of his Motion in Limine

to preclude admission of the letters in support of the Commonwealth’s

Hindering Prosecution charge. Appellant avers that the letters, sent to Noel

Bridges and Janelle Houser, were improperly authenticated because the

Commonwealth did not have a “known” sample of Appellant’s handwriting to

which a comparison the letters could be made.           Appellant’s Brief at 7.

Appellant claims that the Commonwealth offered no proof that the “known”

samples—35 letters signed by Appellant containing his return address and

seized by police from Appellant’s girlfriend—were, in fact, written by

Appellant.   Therefore, Appellant claims the trial court erred in admitting

letters into evidence.

      We review a trial court’s evidentiary rulings for an abuse of discretion.

Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013). An abuse

of discretion is not a mere error in judgment but, rather, involves bias, ill




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will, partiality, prejudice, manifest unreasonableness, or misapplication of

law. Commonwealth v. Riley, 19 A.3d 1146, 1149 (Pa. Super. 2011).

      The rules of evidence provide that the requirement of authentication or

identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what

its proponent claims. Pa.R.E. 901. In In re F.P., this Court held:

          A document may be authenticated by direct proof and/or
          by circumstantial evidence. Commonwealth v. Brooks, [
          ] 508 A.2d 316, 318 (Pa. Super. 1986) (citations omitted).
          “‘[P]roof of any circumstances which will support a finding
          that the writing is genuine will suffice to authenticate the
          writing.’” Id. at 319, quoting McCormick, Evidence § 222
          (E. Cleary 2d Ed. 1972).             “The courts of this
          Commonwealth have demonstrated the wide variety of
          types of circumstantial evidence that will enable a
          proponent to authenticate a writing.”        Id. (collecting
          cases).

In re F.P., 878 A.2d 91, 94 (Pa. Super. 2005).

      We agree with the trial court that there was sufficient proof of the

authenticity of the letters such that their admission into evidence was

proper.   Noel Bridges, Appellant’s girlfriend, testified that she exchanged

correspondence with Appellant during his incarceration and that the police

seized a stack of letters she had received from Appellant. N.T. Trial, 4/7/15-

4/13/15, at 392-93.     All of the seized letters contained Appellant’s return

address. N.T. at 320. One of the letters, Exhibit 37, instructed Ms. Bridges

to contact Takayla Witcher through a third-party in order to instruct Ms.




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Witcher to deny being present at and having knowledge of the assault on the

Victim. N.T. at 394-96.

      Janelle Houser testified that she received a letter, Exhibit 38, which

was signed by Appellant. N.T. at 387. This letter asked Ms. Houser to find

out what witness Michelle Monfredi was “going to do” and stated, “[i]f any of

them telling hoes down there are around, you knock somebody’s head off.”

N.T. at 485.

      In addition, a document examiner and handwriting expert, Corporal

Robert Negherbon, examined Exhibits 37 and 38.          He confirmed, after

comparing the exhibits with the other letters seized from Ms. Bridges, that

the handwriting in Exhibits 37 and 38 was that of Appellant. N.T. at 369

      In light of the direct and circumstantial evidence demonstrating the

authenticity of Exhibits 37 and 38, we conclude the trial court did not abuse

its discretion in admitting them into evidence. Accordingly, Appellant is not

entitled to relief on this issue.

      In his second issue, Appellant claims the trial court abused its

discretion in denying Appellant’s March 30, 2015 and April 7, 2015 Motions

for Continuance. Appellant alleges that the trial court “fail[ed] to recognize

the nature of the crimes at issue and the intricacy of the evidence.”

Appellant’s Brief at 10. He claims that, “had the court allowed counsel more

time to find an expert, the Appellant would have been better able to

determine the cause of trauma, extent of injury, and cause of death. This



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would have enabled the Appellant to more effectively cross examine

Commonwealth witnesses on these matters and present evidence on his

behalf.”   Id. at 11.   Appellant avers that he was prejudiced by the trial

court’s rulings because they precluded him from being able to “actively

determine causation as it related to his defense.” Id.

      We review an order denying a motion for continuance for an abuse of

discretion.   Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa. Super.

2014); Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2013).

“In reviewing a denial of a continuance, the appellate court must have

regard for the orderly administration of justice, as well as the right of the

defendant to have adequate time to prepare a defense.” Hansley, 24 A.3d

at 418.

      The Commonwealth charged Appellant with Third Degree Murder and

Aggravated Assault on October 24, 2013.        On March 29, 2015, over 18

months later, Appellant provided counsel with a list of potential witnesses

Appellant wanted counsel to contact on his behalf.4 Counsel took no action

in the case, but informed the court that he was ready for trial.




4
  Counsel notes that the court appointed him to represent Appellant in
November 2014, but shortly thereafter he was hospitalized, and was unable
to make any progress with the case until mid-January 2014. He claims that
this fact, and Appellant’s incarceration some distance from Westmoreland
County, prevented him from meeting with Appellant to discuss the case
details and trial strategy until the day before the pretrial conference.



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      On March 30, 2015, at Appellant’s pretrial conference, counsel

requested a continuance for the first time.         The trial court denied the

request, based in part on the Assistant District Attorney’s opposition and his

offer to assist Appellant in locating his potential witnesses.

      At the commencement of trial on April 7, 2015, Appellant again

requested a continuance, this time claiming that he needed time to explore

the possibility of hiring a medical expert to testify about the Victim’s cause

of death.   The Assistant District Attorney opposed this request.      The trial

court denied the Motion, and noted that Appellant had not re-raised his

previous request for time to contact witnesses, ostensibly because he had

interviewed them in the intervening week.

      Although we are mindful of Appellant’s right to adequately prepare his

defense, after reviewing the record, we conclude that the trial court did not

abuse its discretion in denying Appellant’s Motions. Appellant was aware as

early as October 2013 that he would need to prepare a defense to the

Aggravated Assault and Murder charges, yet his counsel waited until trial

had commenced to notify the trial court that he was considering hiring an

expert witness to testify as to causation.     The trial court’s decision not to

permit a continuance at this late date was not manifestly unreasonable in

light of the facts and the trial court’s interest in the orderly and timely

administration of justice. See Antidormi, 84 A.3d at 745.




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        In his third issue on appeal, Appellant claims the trial court abused its

discretion in denying his request for an involuntary manslaughter jury

instruction.5 Appellant’s Brief at 13. He avers that the facts presented could

support a finding of recklessness or gross negligence, and, thus, an

involuntary manslaughter instruction was warranted. Id. at 15.

        “In reviewing a challenge to the trial court's refusal to give a specific

jury instruction, it is the function of this Court to determine whether the

record supports the trial court's decision.” Commonwealth v. Kendricks,

30 A.3d 499, 507 (Pa. Super. 2011) (quotation and citation omitted). “[O]ur

standard of review when considering the denial of jury instruction is one of

deference—an appellate court will reverse a court's decision only when it

abused its discretion or committed an error of law.”        Commonwealth v.

Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (quotation and citation

omitted). When evaluating a jury instruction, the charge must be read as a

whole to determine whether it was fair or prejudicial. Id.



5
    The Crimes Code defines involuntary manslaughter as follows:

           § 2504. Involuntary manslaughter

           (a) General rule.—A person is guilty of involuntary
           manslaughter when as a direct result of the doing of an
           unlawful act in a reckless or grossly negligent manner, or
           the doing of a lawful act in a reckless or grossly negligent
           manner, he causes the death of another person.

18 Pa.C.S. § 2504(a).



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     Moreover, “a trial court should not instruct the jury on legal principles

which have no application to the facts presented at trial. Rather, there must

be some relationship between the evidence presented and the law upon

which an instruction is requested.”   Commonwealth v. Taylor, 876 A.2d

916, 925 (Pa. 2005) (quotations and internal citation omitted. “Accordingly,

a criminal defendant must establish that the trial evidence would ‘reasonably

support’ a verdict based on the desired charge and may not claim

entitlement to an instruction that has no basis in the evidence presented

during trial.” Id at 925-26.

      “In determining whether the evidence would support a manslaughter

charge, we must view the evidence in the light most favorable to the

defendant.” Commonwealth v. Soltis, 687 A.2d 1139, 1141 (Pa. Super.

1996).

     In considering Appellant’s request for an involuntary manslaughter

charge, the trial court noted that it “found no evidence in the record to

support a determination that the killing resulted from an accident or

negligence.” Trial Ct. Op., 10/16/15, at 10. It further opined:

         In this case, [Appellant] arranged to be present in order to
         confront [the Victim] about “backdooring” him. Almost
         immediately, he struck the unsuspecting victim in the face
         causing him to collapse. He beat him continuously for 5-
         10 minutes, striking and kicking him in the face and torso.
         Subsequent to this episode [the Victim] lost the ability to
         walk, eat or breathe independently, or speak, and
         remained curled up in a fetal position until his death.
         [Appellant] presented no evidence to show this conduct
         was accidental or grossly negligent. Thus, without making


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            involuntary manslaughter an issue in the case, and
            because the beating was prolonged and brutal, the request
            for a charge of involuntary manslaughter was properly
            denied.

Id. The record supports the trial court's decision. We agree with the trial

court that an involuntary manslaughter jury charge was not appropriate in

light of the evidence. Therefore, this issue lacks merit.

        In his next issue, Appellant claims the trial court erred in denying his

Post-Sentence Motion in which he alleged that his Sixth Amendment right to

a jury of his peers was violated.      See U.S. Const. amend. VI.        Appellant

notes that he is African-American and the jury panel from which he selected

his jury was all white.6

        To prevail on a claim of underrepresentation of certain groups in a jury

pool, the complainant must show: “(1) the group allegedly excluded is a

distinctive group in the community; (2) the representation of this group in

venires from which juries are selected is not fair and reasonable in relation

of    the   number    of   such   people   in   the   community;   and   (3)   this

underrepresentation is due to systematic exclusion of the group in the jury

selection process. ‘Systematic’ means caused by or inherent in the system

by which juries were selected. Proof is required of an actual discriminatory

practice in the jury selection process, not merely underrepresentation of one

particular group.”     Commonwealth v. Estes, 851 A.2d 933, 935 (Pa.


6
    Appellant raised this issue during jury selection. See N.T. at 29.



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Super. 2004) (quotations and citations omitted).        “The mere showing of

underrepresentation, absent an actual discriminatory practice in the jury

selection process, causes [a defendant’s] constitutional claim to fail.” Id. at

936.

       As stated by the trial court, “[i]n this case, other than objecting to the

composition of the panel, [Appellant] made no showing that the panel was

unfairly selected or that the underrepresentation of African Americans was

due to a systemic exclusion of this group.            It was incumbent upon

[Appellant] to show discrimination in the use of the jury lists. His failure to

provide this evidence is fatal to this claim.” We agree with the trial court.

Appellant is not entitled to relief on this claim.

       Next, Appellant claims the Commonwealth’s evidence was insufficient

to convict him of Third Degree Murder. Appellant’s Brief at 17. He avers

that there was insufficient evidence to establish a causal connection between

the beating and the Victim’s death, and insufficient evidence to prove that

Appellant acted with malice. Id.

       Our standard of review of sufficiency claims is well-settled:

          The standard we apply in reviewing the sufficiency of the
          evidence is whether viewing all the evidence admitted at
          trial in the light most favorable to the verdict winner, there
          is sufficient evidence to enable the fact-finder to find every
          element of the crime beyond a reasonable doubt. In
          applying the above test, we may not weigh the evidence
          and substitute our judgment for the fact-finder. In
          addition, we note that the facts and circumstances
          established by the Commonwealth need not preclude every
          possibility of innocence.        Any doubts regarding a


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         defendant's guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the trier of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006)

(quotation and citation omitted).

      Murder in the third-degree is defined as “all other kinds of murder”

other than first-degree and second-degree murder. 18 Pa. C.S. § 2502(c).

In Commonwealth v. Seibert, 622 A.2d 361, 364 (Pa. Super. 1993), the

Court states “the elements of third-degree murder, as developed by case

law, are a killing done with legal malice but without the specific intent to kill

required in first-degree murder.” "Malice express or implied is the criteria

and absolutely the essential ingredient of murder." Commonwealth v.

Commander, 260 A.2d 773, 776 (Pa. 1970). “Malice may be found to exist

not only in an intentional killing, but also in an unintentional homicide,

where the perpetrator ‘consciously disregarded an unjustified and extremely

high risk that his actions might cause death or serious bodily harm.’”

Commonwealth v. Young, 431 A.2d 230, 232 (Pa. 1981).

      Addressing Appellant’s sufficiency challenges, trial court opined that

the jury found that the Victim’s “condition prior to the beating, and his


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condition immediately thereafter was consistent with his injuries as

established by the coroner and medical witnesses.”       Trial Ct. Op. at 11.

Although Appellant claims that the Commonwealth’s witnesses provided

contradictory and inconsistent testimony, the trial court noted that, “the

jury, making its own credibility determinations, decided which testimony to

believe and which to reject.” Id.

      The Commonwealth’s evidence established that Appellant arranged to

to be present in order to confront the Victim about “backdooring” him.

Almost immediately, Appellant struck the Victim in the face causing him to

collapse. Appellant continued to beat the Victim for 5-10 minutes, striking

and kicking him in the face and torso. We agree with the trial court that the

Commonwealth presented sufficient evidence of malice, and a causal

connection between the beating and the Victim’s death, for the jury to find

Appellant guilty of Third Degree Murder. Accordingly, this issue fails.

      Last, Appellant claims the verdict was against the weight of the

evidence.   Appellant’s Brief at 17. Specifically, Appellant claims that the

testimony of the medical witnesses was inconsistent with the Victim’s

injuries.

      We note that, when considering challenges to the weight of the

evidence, “[]he 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 witnesses.”   Commonwealth v. Talbert, 129 A.3d 536, 545



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(Pa. Super. 2015) (internal quotation marks and citations omitted). Further,

“[i]n order for a defendant 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.” Id. at 546 (internal quotation

marks and citation omitted).

      In the instant matter, the jury, as the fact-finder, made its own

credibility determinations and decided which testimony to believe and which

to reject. It “found that [the Victim’s] condition prior to the beating, and his

condition immediately thereafter was consistent with his injuries as

established by the coroner and medical witnesses.” Trial Ct. Op. at 11. We

will not disturb the jury’s findings as they do not “shock[] the conscience of

the [C]ourt.” Talbert, 129 A.3d at 546 (quotation and citation omitted).

      For   the   foregoing reasons, we       affirm Appellant’s   Judgment of

Sentence.

      Judgment of Sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/10/2016




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