J-S65010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWIN ARIEL FRANCO-CACERAS                 :
                                               :
                       Appellant               :   No. 379 MDA 2019

       Appeal from the Judgment of Sentence Entered November 16, 2018
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000650-2018


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

MEMORANDUM BY PANELLA, P.J.:                        FILED FEBRUARY 11, 2020

        In this appeal, Appellant, Edwin Ariel Franco-Caceras, raises the singular

claim that his conviction for burglary was against the weight of the evidence.

We disagree and affirm his judgment of sentence.

        The trial court summarized the facts of this case as follows:

        Testimony at the bench trial revealed that on Monday,
        December 11, 2017, Ronald Schubauer, Jr. (“Schubauer”)
        arrived at his office at the West Hanover Township Building
        and noticed that a window had been broken. Schubauer left
        his office on Friday, December 8, 2017 at 2:00 p.m. and did
        not return until Monday at 6:00 a.m. When he returned
        Monday morning, he discovered that a white desk fan was
        missing. Schubauer was able to describe the fan, the
        controls, the switches, and the general configuration of the
        fan. Pennsylvania State Trooper Jared Troutman responded
        to the incident on December 11, 2017 and noticed that there
        was a broken window outside of Schubauer’s office. Trooper


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      Troutman testified that there was a piece of gravel rock that
      was found inside the window pane.

      Amanda Price (“Price”) [is] the chief operating officer at the
      community       corrections   center    [named      Keystone
      Correctional Facility, which houses state parolees and sits
      next door to the West Hanover Township Building]. Price
      indicated that there are surveillance cameras and a work
      release tracking system that keeps track of when the
      offenders enter and leave the [Keystone Correctional
      Facility]. Through Price, the Commonwealth introduced
      different surveillance footage that showed [Appellant, a
      resident at Keystone Correctional Facility,] wearing dark
      clothing and riding a bike and pulling a white fan out of his
      bag. The Commonwealth introduced the time log that
      indicated that [Appellant] signed out on December 10, 2018
      at 10:15 a.m. and re-entered the facility at 2:45 p.m. Price
      was also shown the fan … and indicated that it was the same
      fan that was confiscated from [Appellant].

      [Appellant] testified on his own behalf and indicated that
      while he was heading to Target to do some shopping, he
      saw the white fan sitting outside a Community Aide
      container. On his way back, he stopped and picked up the
      fan.

Trial Court Opinion, 9/11/19, at 2-3 (internal citations and footnotes omitted).

      The trial court found Appellant guilty of burglary, criminal trespass and

theft by unlawful taking. For purposes of sentencing, the court merged the

criminal trespass and theft by unlawful taking counts into the burglary count

and sentenced Appellant to a term of imprisonment of eighteen to thirty-six

months. The court also gave Appellant a credit of eleven months and six days

for time served.   Appellant filed a post-sentence motion alleging that his




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conviction for burglary was against the weight of the evidence, which the trial

court denied. Appellant now claims the court erred by denying that motion.1

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

free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses.” Commonwealth v. Small, 741 A.2d 666, 672

(Pa. 1999) (citation omitted). When considering a motion that a verdict was

against the weight of the evidence, a “trial court should award a new trial on

this ground only when the verdict is so contrary to the evidence as to shock

one’s sense of justice.” Commonwealth v. Chamberlain, 30 A.3d 381, 396

(Pa. 2011) (citation omitted).

       In rejecting Appellant’s weight claim below, the trial court, which sat as

the factfinder at Appellant’s trial, stated that the verdict clearly did not shock

its sense of justice. The court explained:

              [This court] ha[s] had the opportunity to hear and see
              the evidence presented, including the credible
              testimony presented by the officer and witnesses in
              this case. The Commonwealth presented testimony
              that when Schubauer left work on Friday his office did
____________________________________________


1 Although Appellant makes a more generic claim in this appeal that his
“verdict” was against the weight of the evidence, his post-sentence motion
and his 1925(b) Statement of Errors Complained of on Appeal specifically
challenged only his burglary conviction as being against the weight of the
evidence. As such, the trial court properly addressed Appellant’s weight claim
as challenging only his burglary conviction, and we will do the same. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that issues
not raised in 1925(b) Statement are waived). Appellant was convicted
pursuant to 18 Pa.C.S.A § 3502(a)(4), which provides that a person commits
burglary if “with the intent to commit a crime therein, the person: … enters a
building … in which at the time of the offense no person is present.”

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              not have a broken window but when he returned to
              work on Monday, there was a broken window and a
              desk fan was missing. The Commonwealth also
              established a time line that showed [Appellant]
              leaving the corrections center on December 10, 2018
              at 10:15 a.m. and returning on December 10, 2018 at
              2:45 p.m. [Appellant] was depicted wearing dark
              clothing and riding a bike. Finally, we note that the
              fan was located on [Appellant] and that the [fan] was
              eventually confiscated from [Appellant]. As such, in
              factoring in questions of credibility, questions of
              timing, and the overall physical evidence presented in
              this case, we found [Appellant] guilty of burglary.

Trial Court Opinion, 9/11/19, at 4.

       Appellant now claims the trial court erred in reaching this conclusion

because his verdict was, in fact, against the weight of the evidence. According

to Appellant, this is so because the circumstantial evidence presented by the

Commonwealth failed to prove that he broke the window of the West Hanover

Township Building and stole the fan.2 This claim offers no basis for relief.

       In essence, Appellant is asking this Court to revisit his underlying weight

claim and find that his verdict, contrary to what the trial court found, was

against the weight of the evidence. By doing so, Appellant misconstrues our

standard of review as an appellate court tasked with the responsibility of


____________________________________________


2 Appellant claims, in particular, that the verdict was against the weight of the
evidence because there was no evidence showing him near the broken window
and no physical evidence linking him to the broken window. In support of that
claim, Appellant cites to a string of cases addressing an appellant’s challenge
to the sufficiency of the evidence, not the weight of the evidence. However,
Appellant has not raised a sufficiency of the evidence claim on appeal, as his
statement of the question involved, summary of the argument and argument
section all plainly put forth a weight of the evidence claim. See
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000).

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reviewing a trial court’s decision regarding a weight of the evidence claim. Our

Supreme Court has clearly stated that appellate review of a weight claim ruled

on by the trial court below is not a reevaluation of the underlying question of

whether   the   verdict   is   against   the   weight   of   the   evidence.   See

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). Rather, our

standard of review is limited to determining whether the trial court palpably

abused its discretion in concluding that the verdict was or was not against the

weight of the evidence. See id. We have stated:

            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 [or is not] against the weight of the evidence.


Commonwealth v. Clay, 643 A.3d 1049, 1055 (Pa. 2013) (citation omitted).

      This does not mean, of course, that the trial court’s discretion is

unfettered. See Clay, 642 A.3d at 1055. We will find an abuse of discretion if

the trial court misapplied the law, reached a manifestly unreasonable

judgment or based its decision on partiality, prejudice, bias or ill-will. See id.

      Here, we discern no such abuse of discretion on the part of the trial

court. As quoted above, see supra at 3-4, the trial court outlined its findings

on which it based its conclusion that Appellant’s verdict was not against the

weight of the evidence. Those findings - which included the fact that an office

window was discovered broken, a fan was missing from a nearby desk and



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Appellant was found in possession of the missing fan - are all supported by

the record. See id. at 1056 (stating that where record adequately supports

the trial court’s conclusion that the verdict is not against the weight of the

evidence, the trial court has acted within its discretion).

      The trial court, which served as the factfinder at Appellant’s trial, also

cited to its credibility determinations as a factor in reaching its decision that

Appellant’s verdict was not against the weight of the evidence. “In assessing

a claim that the verdict was against the weight of the evidence, this Court will

not substitute its judgment for that of the factfinder, which is free to assess

the credibility of the witnesses and to believe all, part, or none of the evidence

presented.” Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa. Super. 2017)

(citations omitted).

      Based on the above, we cannot conclude that the trial court abused its

discretion in finding that Appellant’s conviction for burglary was not contrary

to the weight of the evidence. Again, while Appellant continues to offer

arguments to this Court as to why he believes his verdict was against the

weight of the evidence, it is not for this Court “to step[] into the shoes of the

trial judge and revisit[] the underlying question of whether the verdict was

against the weight of the evidence.” Clay, 64 A.3d at 1056.

      Judgment of Sentence Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/11/2019




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