J-A31009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

DOMINIC COSMO MENNITI,

                            Appellee                   No. 686 EDA 2016


                Appeal from the Order Entered February 18, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013068-2011


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 18, 2017

        The Commonwealth appeals from the trial court’s order granting a new

trial to Appellee, Dominic Cosmo Menniti, based on the court’s determination

that Appellee’s conviction, for aggravated assault and disarming a police

officer, was against the weight of the evidence.      After careful review, we

affirm.

        The following is an extremely brief summary of the evidence adduced

at trial, stemming exclusively from the testimony of the arresting officers

which, by the very nature of the claim before this Court, was called into

question by the trial court’s order granting a new trial on weight-of-the-

evidence grounds. The incident leading to Appellee’s arrest occurred in the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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early morning hours of July 21, 2011, in the 2300 block of South Warnock

Street in South Philadelphia. Plain clothes Police Officers Charles James and

Nicholas Colville were patrolling the area in an unmarked police car when

they observed Appellee looking into a vehicle, which they believed he was

doing for the purpose of ‘casing’ it, that is, examining the vehicle in order to

determine whether it was a viable and/or lucrative target for the commission

of a theft. The officers never observed Appellee make any attempt to break

into the vehicle he was observed ‘casing,’ nor any other. Nevertheless, after

observing Appellee’s suspicious behavior, the officers began to follow him in

their unmarked patrol car.

       At some point during the pursuit, Officer James got out of the

unmarked patrol car and began following Appellee on foot.              Appellee

apparently became aware he was being followed, and began looking in the

direction of the officers’ vehicle. When Appellee got to an intersection, he

walked around a corner out of the officers’ view, and then peeked back

around the corner, eyeing the officers’ vehicle again.        Soon thereafter,

Officer James walked around that same corner, briefly addressed Appellee

verbally,1 at which time Appellee starting running away from him.        Officer

James gave chase for a few blocks before Appellee stopped.


____________________________________________


1
  Officer James claimed he first identified himself as a police officer to
Appellee, by saying, “[Are] you all right[?] I’m a police officer.” However,
as will be discussed infra, how and when Officer James identified himself as
(Footnote Continued Next Page)


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      Officer James ordered Appellee to place his hands on a nearby car, and

claimed that he again identified himself as a police officer by displaying the

badge on his hip that had been previously covered by his shirt.            Officer

James then ordered Appellee to place his hands on a nearby wall, where he

attempted to handcuff him.            A prolonged struggle ensued when Appellee

resisted being handcuffed.          Early in the fracas, the handcuffs fell to the

ground, at which time Officer James unholstered his firearm, put his finger

on the trigger, and instructed Appellee to relax. Officer James again tried to

handcuff Appellee, but Appellee grabbed the handcuffs, causing a scuffle

that brought both men to the ground. As the men wrestled on the ground,

Officer James’ radio fell out of his pocket, and his firearm fell out of its

holster.   Officer James immediately turned his attention to the firearm,

attempting to secure it, while continuing to wrestle with Appellee.        At this

point, Officer James claimed that Appellee also tried to grab the firearm.

Eventually, Officer James fired a shot, but claimed that Appellee continued

to scuffle with him after a brief pause. Officer James then fired another shot

after struggling to maintain control of his firearm, which he eventually lost.

However, Officer James never observed Appellee with control of the gun.

Soon thereafter, Officer Colville arrived on the scene, and testified that he

saw Appellee with a firearm in his hand. He claimed that he told Appellee to

                       _______________________
(Footnote Continued)

a police officer to Appellee was a critical factor in the trial court’s
determination that the verdict was against the weight of the evidence.



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drop the firearm, but he could not remember what words he used to convey

that command. When Appellee did not drop the firearm, Officer Colville fired

four shots at him, striking Appellee in the abdomen, left groin, and the upper

portion of his right arm.         Officer James suffered some abrasions and a

temporary loss of his hearing.             Appellee was arrested, at which time

marijuana and drug paraphernalia were found on his person.

         Based on these events, Appellee was charged with aggravated

assault of a police officer,2 assault of a law enforcement officer,3 disarming a

law enforcement officer,4 simple assault,5 person not to possess a firearm,6

carrying a firearm in public in Philadelphia,7 possessing an instrument of

crime,8 reckless endangerment,9 resisting arrest,10 and possession of drug


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2
    18 Pa.C.S. § 2702(a)(3).
3
    18 Pa.C.S. § 2702.1.
4
    18 Pa.C.S. § 5104.1.
5
    18 Pa.C.S. § 2701.
6
    18 Pa.C.S. § 6105.
7
    18 Pa.C.S. § 6108.
8
    18 Pa.C.S. § 907.
9
    18 Pa.C.S. § 2705.
10
     18 Pa.C.S. § 5104.




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paraphernalia11 and marijuana.12          By order dated November 5, 2014, the

trial court granted Appellee’s motion to suppress the seized evidence,

thereby dismissing the drug-related charges.13          Just prior to trial, the

Commonwealth nolle prossed all but three of the remaining charges, leaving

only aggravated assault of a police officer, disarming a law enforcement

officer, and carrying a firearm in public in Philadelphia.      Following a jury

trial, which concluded on November 14, 2014, Appellee was convicted of the

first two offenses and acquitted of the latter.      Additionally, on the verdict

slip, the jury twice indicated its finding that Appellee did not possess a

firearm during his encounter with Officers James and Colville.

        On November 21, 2014, Appellee filed a timely post-trial motion for

extraordinary relief seeking, inter alia, a new trial based on a challenge to

the verdict on weight-of-the-evidence grounds. On February 18, 2016, the

trial court granted Appellee’s motion, thereby awarding him a new trial.

        On March 2, 2016, the Commonwealth filed a timely notice of appeal

from the order granting Appellee a new trial, and contemporaneously filed




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11
     35 P.S. § 780-113(a)(32).
12
     35 P.S. § 780-113(a)(31).
13
   The trial court concluded that Appellant was subjected to an illegal
investigative detention, having determined that the officers lacked a
reasonable suspicion to stop him. See N.T. Suppression, 11/5/14, at 69-71.



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an unprompted Pa.R.A.P. 1925(b) statement.       On April 18, 2016, the trial

court issued its Rule 1925(a) opinion.

      The Commonwealth now raises the following question for our review:

“Did the [trial] court contravene the governing legal standard when it

ordered a new trial based on the weight of the evidence?” Commonwealth’s

Brief at 7.

      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 a review of the
         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,

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J-A31009-16


         as opposed to prejudice, personal motivations, caprice or
         arbitrary actions. Discretion is abused where the course
         pursued represents not merely an error of judgment, but
         where the judgment is manifestly unreasonable or 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).

      The Commonwealth argues that the trial court thrice abused its

discretion in determining that the jury’s verdict was against the weight of

the evidence.   First, the Commonwealth claims the trial court “conflate[d]

the legal standards for challenges to the sufficiency and weight of the

evidence.”    Commonwealth’s Brief at 7.       In support of this claim, the

Commonwealth points to the trial court’s opinion, wherein the court stated

that it granted Appellee’s motion “based upon its agreement with him that

the evidence was insufficient and/or lacked sufficient weight to convict[.]”

Trial Court Opinion (TCO), 4/18/16, at 6. The court also stated that it found

that “the facts were of such lack of sufficiency and weight to convict to the

extent that the verdict[] shocked it[]s conscience[.]”     Id.   Elsewhere, the

Commonwealth complains, the trial court cited the governing standard for

sufficiency claims.

      The Commonwealth’s argument is not convincing.             The trial court

certainly expressed its opinion that it believed the evidence was both

insufficient and that the verdict was against the weight of the evidence.

However, the trial court clearly did not rule on Appellee’s sufficiency claim,

as it only granted Appellee a new trial, which is not the appropriate remedy

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for a successfully argued sufficiency claim. Moreover, the passages cited by

the Commonwealth do not even appear in the section of the court’s opinion

addressing the weight of the evidence.      The statements instead appear in

the portion of the opinion titled, “Jurisdiction Over Interlocutory Appeals.”

TCO at 3.

      In the section addressing the weight-of-the-evidence claim, the trial

court did cite the standard for sufficiency claims.           Id. at 9 (quoting

Commonwealth v. Karkaria, 625 A.2d 1120 (Pa. 1983)).               However, the

court immediately thereafter cited the appropriate and correct standard

applicable to weight-of-the-evidence claims. Id. (quoting Commonwealth

v. Sullivan, 820 A.2d 795 (Pa. Super. 2003)). The court then stated, “[in]

its review of the evidence infra, the court will demonstrate that the verdicts

were clearly not supported by it.”        Id.   No such statement appeared

following the court’s citation of the sufficiency standard.

      The Commonwealth’s hypercritical analysis of the trial court’s text

does not convince us that the court abused its discretion by conflating the

sufficiency and weight-of-the-evidence standards.      Rather, a fairer reading

of the court’s opinion demonstrates that while it believed that the evidence

was both insufficient and against the weight of the evidence, it only granted

relief based on Appellee’s weight-of-the-evidence claim. That the court was

of both opinions does not render its weight-of-the-evidence analysis invalid.

Moreover, the trial court’s opinion regarding the sufficiency of the evidence,

whether correct or not, is immaterial to the matter before this Court. The

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Commonwealth has appealed from an order granting a new trial on weight-

of-the-evidence grounds.     Thus, the trial court’s statements regarding the

sufficiency of the evidence are superfluous.

      It is often 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.”    Commonwealth v. Widmer,

744 A.2d 745, 751 (Pa. 2000) (citing Commonwealth v. Whiteman, 485

A.2d 459 (Pa. Super. 1984)).          From the platform of this rule, the

Commonwealth engages in another hypercritical attack on the trial court’s

opinion, arguing that, “through a number of hyperbolic formulations,” the

trial court asserted “that there was insufficient evidence that Officer James

displayed his badge to [Appellee] to put him on notice that he was dealing

with a police officer.”   Commonwealth’s Brief at 21.      The Commonwealth

then fails to cite to any specific “hyperbolic formulation,” and instead cites to

portions of the transcripts in an attempt to demonstrate the sufficiency of

the evidence. Id. at 21-24. Again, the sufficiency of the evidence is not a

matter before this Court, and therefore we need not address it. Moreover,

the Commonwealth has waived any specific complaint about the trial court’s

purported ‘hyperbolic formulations’ by failing to direct our attention to the

portion of the court’s opinion where such statements appear.

      We are satisfied from our review of the record that the Commonwealth

has failed to prove that the trial court abused its discretion by conflating the

sufficiency and weight-of-the-evidence standards. The trial court’s thorough

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J-A31009-16



and well-reasoned opinion did not conflate those standards but, instead, in

what might be at worst described as an exercise in rhetorical excess, the

court attempted to buttress its weight-of-the-evidence analysis with asides

regarding its opinion on the evidence’s sufficiency.   While unessential to the

court’s weight-of-the-evidence analysis, it was not unreasonable, much less

“manifestly unreasonable,” for the court to so, as it correctly applied the

weight-of-the-evidence standard by engaging in a meticulous dissection of

the rampant amount of conflicting evidence in this case.

         Second, the Commonwealth argues that the trial court abused its

discretion by “conflating the propriety of the arrest and the propriety of the

jury’s    verdict.”     Commonwealth’s    Brief   at   24.        Essentially,   the

Commonwealth contends that circumstances surrounding the arrest were

irrelevant to the jury’s verdict, citing the law that “the lawfulness of [an]

arrest is irrelevant to the charge of aggravated assault,” Commonwealth v.

Biagini, 655 A.2d 492, 498 (Pa. 1995), and that the use of force is not

justified “to resist an arrest which the actor knows is being made by a peace

officer, although the arrest is unlawful[,]” 18 Pa.C.S. § 505(b)(1)(i).          The

Commonwealth contends the trial court abused its discretion by failing to

apply these legal precepts to its weight-of-the-evidence analysis.

         Our review of the record and applicable case law belies the

Commonwealth’s claim.         Appellee was convicted under 18 Pa.C.S §

2702(a)(3),     which   required   the   Commonwealth        to   prove   that    he

“attempt[ed] to cause or intentionally or knowingly cause[d] bodily injury to

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[a police officer]” who was “in the performance of [his or her] duty.”         18

Pa.C.S § 2702(a)(3), (c)(1).      Notably, proof of an officer’s status is not,

strictly speaking, an element of that crime.         See Commonwealth v.

Flemings, 652 A.2d 1282, 1285 (Pa. 1995) (“We do not interpret the

language ‘in performance of duty’ to require a defendant to have knowledge

of the officer's official status….”). However,

      [a] defendant's ignorance of an officer's official status is relevant
      in those rare cases in which an officer fails to identify himself
      and then engages in a course of conduct which could reasonably
      be interpreted as the unlawful use of force directed either at the
      defendant or his property.       Under such circumstances, a
      defendant would normally be justified in using reasonable force
      against his assailant. He could then be found to have exercised
      self defense, which would negate the existence of mens rea.

Id. at 1285.

      This was the essence of the case at issue. Indeed, in its recitation of

applicable law, the trial court quoted extensively from Flemings (thereby

demonstrating its knowledge of the general rule), while emphasizing the

language defining the exception.          See also id. (“[W]e hold that a

defendant's lack of knowledge should only be considered in those cases in

which a defendant acts with the mistaken belief that he is threatened with

an intentional tort by a private citizen.”).

      Thus, in this case, some of the same circumstances which were

essential to determining whether Appellant was lawfully arrested were also

relevant to whether Appellant held a “mistaken belief that he [was]

threatened with an intentional tort by a private citizen.”     Id.   It is in this


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context that the trial court discussed conflicting evidence regarding Officer

James’ behavior, and the purported basis he offered for subjecting Appellee

to an investigative detention.14,15            Thus, we reject the Commonwealth’s

claim that consideration of such evidence, in the trial court’s analysis of the

weight-of-the-evidence issue, was an abuse of discretion.

       Finally, the Commonwealth asserts that the trial court abused its

discretion by simply substituting its credibility determination for that of the


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14
   Both categories of evidence could have impacted whether Appellee had a
mistaken belief that he was being assaulted by a private citizen. The
manner in which the first category affects such a determination is most
obvious; how and when Officer James, who was not in uniform, identified
himself during the course of events that occurred are clearly pertinent to
whether Appellee’s mistaken belief was reasonable. The latter category of
evidence, regarding Appellee’s conduct which gave rise to the officers’
suspicion, is also relevant for that purpose. Hypothetically speaking, if a
defendant had just robbed a bank, it would hardly be reasonable for him to
claim that he mistakenly believed the person attempting to handcuff him
outside that bank was a private citizen intending to commit an intentional
tort against him. Here, however, Appellee’s observed behavior (looking into
parked vehicles) was not so inherently criminal; it was merely suspicious
from the officers’ viewpoint.      When contrasted with the hypothetical
scenario, since he had not committed a crime in the moments preceding his
interaction with Officer James, it was more reasonable for Appellee to have
believed he was not being followed and then assaulted by a police officer.
15
   The Commonwealth attempts to argue, under the auspices of this sub-
claim, that the trial court erred when it determined that the investigative
detention of Appellee was unlawful. Commonwealth’s Brief at 24-26. This is
inappropriate in the context of a weight-of-the-evidence claim and,
nevertheless, it has been waived.     The Commonwealth did not preserve
any such claim in its Rule 1925(b) statement. “Any issues not raised in a
1925(b) statement will be deemed waived.” Commonwealth v. Lord, 719
A.2d 306, 309 (Pa. 1998).



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J-A31009-16



jury. The Commonwealth argues that this is because “not a single witness

claimed that [Appellee] was unaware Officer James was a police officer, or

that Officer James did not show [Appellee] his badge before frisking and

attempting to arrest him.” Commonwealth’s Brief, at 27.

       We disagree. The Commonwealth, in contravention of our standard of

review, construes the evidence in question in a light most favorable to the

Commonwealth, which, while the appropriate lens through which to analyze

sufficiency claims, is not applicable to weight-of-the-evidence claims.   The

Commonwealth does this by isolating aspects of Officer James’ testimony

which would render the evidence sufficient to support Appellee’s convictions.

As the Commonwealth repeatedly acknowledges in its brief, a weight-of-the-

evidence claim concedes the evidence’s sufficiency.

       Here, the problem was that Officer’s James’ testimony was so

inconsistent and contradictory internally, in relation to Officer Colville’s

testimony, as well as being at odds with the Commonwealth’s own,

disinterested witnesses’ testimony, that the jury’s verdict shocked the

conscience of the trial court. These inconsistencies were not confined solely

to the issue of when and how Officer James showed his badge to Appellee.16


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16
   These serious and extensive inconsistencies were demonstrated in great
detail in the factual history provided by the trial court. TCO at 14-43. The
most pertinent inconsistencies, with respect to Appellee’s defense, were then
highlighted by the trial court in its legal analysis. Id. at 43-48. The
Commonwealth’s argument focuses only on a single aspect of this analysis,
(Footnote Continued Next Page)


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Nevertheless, the fact that Officer James showed Appellee a badge, while

potentially sufficient to undermine Appellee’s mistaken belief, is again an

argument directed at the sufficiency of the evidence, not its weight. In its

opinion, the trial court thoroughly and convincingly discussed the rampant

inconsistencies in the Commonwealth’s case which led the court’s conscience

to be shocked by the verdict.           In determining that the jury’s verdict was

against the weight of the evidence, the court did not rely solely on

inconsistencies and/or contradictions regarding Officer James’ testimony

addressing the timing and circumstances of his claim that he showed

Appellee    his   badge        before    attempting   to   handcuff   him.    The

Commonwealth’s failure to contend with the vast number of other

contradictions and inconsistencies discussed by the court in its opinion, while

focusing on a single aspect of the court’s decision, is misleading with respect

to the record below. Therefore, the Commonwealth has failed to convince us

that the trial court merely substituted its credibility determination for that of

the jury.

      In sum, therefore, we ascertain no abuse of discretion in the trial

court’s granting Appellee a new trial on weight-of-the-evidence grounds.

The Commonwealth has failed to show that the trial court misapplied the



                       _______________________
(Footnote Continued)

giving the false impression that it was the sole basis for the trial court’s
decision.



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law, ruled in a manifestly unreasonable manner, or demonstrated partiality,

prejudice, bias or ill-will in its decision.

      Order affirmed.

      Justice Fitzgerald joins this memorandum.

      Judge Moulton concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2017




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