J. S33002/14



NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
AYODELE OKE,                            :          No. 534 EDA 2013
                                        :
                        Appellant       :


          Appeal from the Judgment of Sentence, January 17, 2013,
            in the Court of Common Pleas of Montgomery County
              Criminal Division at No. CP-46-CR-00003220-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 30, 2014

      Ayodele Oke appeals, pro se, from the judgment of sentence entered

on January 17, 2013, in the Court of Common Pleas of Montgomery County.

We affirm, as none of the issues raised in this tortuous appeal have merit.

      On April 4, 2011, appellant was arrested for the armed robbery of

Shawn T. Schwarz. During the robbery, appellant held a gun to the back of

the victim’s head, dragged him up the stairs, smacked and choked him.

Appellant threatened to shoot him and took approximately $180 from the

victim.   During the robbery, appellant referred to the victim by name.       At

one point, appellant pulled down the bandana that was covering his face,

and the victim recognized appellant as an old high school classmate.
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      Appellant fled the scene and the victim escaped through an unlocked

door. Initially, the victim hesitated to identify the robber to the police, but

he later disclosed that appellant was responsible for the robbery. The victim

stated that appellant wore white latex gloves and a grey hoodie. The gun

was black and silver.    Appellant was arrested and charged with robbery,

burglary, possession of a firearm with intent to employ it criminally,

aggravated assault, simple assault, recklessly endangering another person,

criminal trespass, unlawful restraint, theft by unlawful taking, and receiving

stolen property.

      On May 3, 2011, a preliminary hearing was held, and the victim’s

testimony was consistent with what he initially told the police. However, the

victim attempted to recant his identification of appellant on the stand.

Detective Robert J. Walsh testified that the victim identified appellant as the

robber.   Furthermore, items found during the search of appellant’s car

corroborated the victim’s account.    Specifically, white latex gloves, a grey

hoodie, .9 millimeter shells, and receipts for gun purchases. The receipts led

the detectives to discover that appellant had purchased a Smith and Wesson

.9 millimeter handgun that matched the ammunition found in appellant’s car

and also the gun used in the robbery. Despite the victim’s attempt to recant

his identification, the Honorable Harry J. Nesbitt held the charges. After the

preliminary hearing, the District Attorney’s office received a letter from the




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victim stating that he made a mistake by incorrectly identifying appellant

and requesting the Commonwealth to drop the charges.

      At trial, the Commonwealth presented six witnesses.            The victim

testified to the events pertaining to the robbery and steadfastly maintained

that appellant attempted to coerce him to change his identification.         The

victim stated that his letter to the District Attorney’s office was also coerced

by appellant.   (Notes of testimony, 5/1/12 at 44-49.) The victim testified

that he knew who the robber was, as he recognized appellant’s voice and

face from high school. (Id. at 211-216.)

      Robert George Kostaras, Sr., the owner of Classic Pistol, testified that

on October 16, 2010, he sold appellant a .9 millimeter Smith and Wesson

gun that was similar to the gun used in the robbery.         (Id. at 172-183.)

Anthony Robert Fabrizio, a dispatcher at the Horsham Township Police

Department, testified that while the victim was at the police station,

appellant, pretending to be the victim’s uncle, called to inquire about the

investigation. (Id. at 183-188.) Pankil H. Patel, the manager of Regency

Motor Inn in Warminster, Pennsylvania, testified that appellant rented a

room in the motel after the robbery, although testimony was presented that

he had an apartment nearby in town. (Id. at 189-200).

      Detective James Vincenti of the Horsham Township Police Department

testified that during appellant’s arrest, he blurted out, “I didn’t stick any gun

in anybody’s head for money.”        Appellant made this statement without



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disclosure by the police that a gun was used in the robbery. (Id. at 203.)

Finally, Detective Robert Waeltz of the Horsham Township Police Department

testified regarding his conversation with the victim. Additionally, he stated

that while the victim was at the police station, someone named “Uncle Jim”

called three times to inquire if the victim was okay. Although the victim did

have an “Uncle Jim,” the uncle lived in New Jersey and would not have

known where the victim was at this point in time. When the victim listened

to the call, he recognized appellant’s voice. Detective Waeltz testified about

the items recovered during the search of appellant’s car and apartment,

which corroborated the victim’s account. The detective also testified about

his interviews with Kostaras and Patel. (Id. at 200-291.)

      Appellant represented himself in all facets of this case, has filed an

exhausting number of motions and petitions, and was noncompliant during

numerous hearings. Appellant also filed numerous petitions in federal court

which were all found to be meritless. With the exception of the preliminary

hearing and a bail hearing, appellant represented himself despite the trial

court’s repeated encouragement for appellant to seek counsel.        The trial

court opinion provides the extensive history of its efforts to protect

appellant’s rights and his decision to proceed either with or without counsel.

For the purpose of this memorandum, we will not recount that history. (See

trial court opinion, 10/21/13 at 2-9.)




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     Following a two-day trial, the jury found appellant guilty of robbery,

possession of a firearm with intent to employ it criminally, recklessly

endangering another person, burglary, criminal trespass, unlawful restraint,

and theft by unlawful taking; the Commonwealth had withdrawn the charges

of aggravated assault, simple assault, and receiving stolen property.

Thereafter, appellant was sentenced to an aggregate term of nine years and

1 month to 43 years and 11 months’ imprisonment.             The trial court has

detailed the remaining procedural history of this case in its opinion. (Id. at

2-9.) This pro se appeal followed.

     In the months since, appellant has continued to file various pro se

petitions and motions with this court and the lower court.

     Appellant presents the following issues for our review:

           1)    Was the evidence insufficient as a matter of
                 law to convict the appellant?

           2)    Is the appellant entitled to an evidentiary
                 hearing    or   a   new    trial because of
                 after-discovered evidence?

           3)    Did outrageous government take place in the
                 lower court which resulted in the appellant’s
                 denial of a right to a fair trial and/or an
                 impartial tribunal?

           4)    Did the lower court lack jurisdiction to proceed
                 to trial while the appellant’s Notice of Removal
                 to federal court was still pending in the federal
                 court?

           5)    Did the lower court err and abuse its discretion
                 when it denied the appellant’s Batson
                 motion/challenge?


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            6)     Has the lower court denied the appellant a
                   meaningful review of all assignments of error
                   and therefore, made a full amd [sic]
                   meaningful appeal impossible?

            7)     Did the plaintiff (whether the state or DA) lack
                   standing to to [sic] lawfully maintain the
                   action/complaint in the lower court?

            8)     Did the lower      court   lack   subject-matter
                   jurisdiction?

            9)     Did the lower court abuse its’ [sic] discretion in
                   denying the appellant’s motion for new trial
                   because the verdict was against the weight of
                   the evidence?

            10)    Did the lower court err and abuse its’ [sic]
                   discretion in denying the appellant’s oral
                   motion for recusal/disqualification (or the
                   appellant’s requests for the trial judge’s
                   recusal)?

Appellant’s brief at 4.

      Appellant’s first claim is that the evidence introduced by the

Commonwealth at trial was insufficient to establish his guilt on all charges.

      Relying on Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993),

appellant argues that the evidence presented by the Commonwealth was

“unreliable and contradictory,” and therefore the guilty verdict cannot stand.

(Appellant’s brief at 21-37.)    Specifically, appellant points to the victim’s




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recantation at the preliminary hearing of his original identification of

appellant.1

      This court’s standard of review when considering a challenge to the

sufficiency of the evidence requires us to look at the evidence in a light most

favorable to the verdict winner and determine whether the evidence

presented, actual and/or circumstantial, was sufficient to enable a fact-finder

to find every element of the crime charged, beyond a reasonable doubt.

Commonwealth v. O’Brien, 939 A.2d 912 (Pa.Super. 2007).

              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
              the circumstances established by the Commonwealth
              need not preclude every possibility of innocence.
              Any doubts regarding a 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.

Id. at 913-914, quoting Commonwealth v. DiStefano, 782 A.2d 574, 582

(Pa.Super. 2001), appeal denied, 806 A.2d 858 (Pa. 2002) (citations and


1
  Ordinarily, of course, issues of credibility are left to the trier-of-fact, and it
is not this court’s function to re-weigh the evidence on appeal.
Nevertheless, “courts of this jurisdiction have recognized that where
evidence offered to support a verdict of guilt is so unreliable and/or
contradictory as to make any verdict based thereon pure conjecture, a jury
may not be permitted to return such a finding.” Commonwealth v.
Farquharson, 354 A.2d 545, 550 (Pa. 1976), citing Commonwealth v.
Bennett, 303 A.2d 220 (Pa.Super. 1973) (and cases cited therein).
Moreover, such claims have been considered as challenges to the sufficiency,
not the weight, of the evidence. Id. See also Karkaria, supra (evidence
insufficient where the complainant’s testimony was inconsistent, unreliable,
and uncorroborated).


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quotations omitted). The finder-of-fact is free to believe all, some, or none

of the evidence presented and is free to determine the credibility of the

witnesses. Commonwealth v. Dailey, 828 A.2d 356 (Pa.Super. 2003).

       Appellant’s challenge to the sufficiency of the evidence presented to

sustain his convictions rests primarily on the credibility of the victim’s

testimony.     Appellant characterizes the victim’s testimony as “full of

inconsistencies.” (Appellant’s brief at 11.) The gist of appellant’s claim is a

challenge to the weight of the evidence, not its sufficiency.                  See

Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004) (distinguishing

Farquharson where the witnesses’ testimony differed somewhat on

collateral matters but was consistent as to the crucial events surrounding

the shooting itself). Furthermore, any alleged inconsistencies in the victim’s

testimony were for the trier-of-fact to resolve. The Farquharson/Karkaria

line   of   cases,   recognizing   that,   in   exceptional   circumstances,   the

Commonwealth’s evidence can be so unreliable and contradictory that it is

incapable of reasonable reconciliation and renders the jury’s verdict

insufficient as a matter of law, are inapplicable for the reasons discussed

below.

       The facts in Karkaria, relied upon by appellant, are distinguishable

from the matter at bar. In Karkaria, our supreme court concluded that the

testimony of the complainant, Sidney F., was so contradictory and unreliable

that it was incapable of supporting a guilty verdict and, thus, insufficient as



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a matter of law.     Karkaria, although frequently cited by appellants on

appeal to this court, is a rather unusual case and is limited to its facts.

        In Karkaria, our supreme court confronted an adolescent witness’

allegations that her stepbrother raped her regularly between April 9, 1984,

and September 19, 1984, while he was acting as her babysitter. Noting that

(1) the rape allegations suggested an ulterior motive because they coincided

with the pending reconciliation between the victim’s mother and stepfather,

whom the victim disliked; (2) the victim’s description of the sexual assaults

were “disturbingly vague” and proffered only one factual scenario to describe

all the alleged assaults; and (3) uncontroverted evidence contradicted the

victim’s testimony regarding the timing of the assault, the supreme court

found the witness’s testimony was “riddled with critical inconsistencies” and

so unreliable that it was insufficient as a matter of law. Karkaria, supra at

1171.

        In contrast with the extreme irregularities surrounding the victim’s

testimony in Karkaria, in this case, Swartz’s testimony is not riddled with

inconsistencies.2 Although the victim recanted his identification of appellant


2
  Appellant also points out numerous alleged inconsistencies which are belied
by the record. For instance, in his brief appellant states that the victim and
Detective Waeltz “constantly contradict themselves and each other.”
(Appellant’s brief at 34.) Appellant argues that the victim testified there was
no redness on his neck and claims this statement contradicts the detective’s
statement that the victim had red marks on his neck. However, when we
reviewed the pages of testimony appellant cites in support of this theory, his
claim is belied by the record. (Id.; notes of testimony, 5/1/12 at 170-171,
275.)


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at the preliminary hearing and sent a letter to the District Attorney and trial

judge asking for the charges to be dropped, at trial the victim explained that

these actions were the result of appellant’s threats. The victim testified that

during the attack, appellant referred to the victim by name and the victim

recognized his voice.   Appellant pulled the bandana down, and the victim

recognized his face.    Aside from the explained inconsistency, the victim’s

testimony was corroborated with the circumstantial evidence in this case --

the items recovered in appellant’s car and residence, appellant’s purchase of

a gun similar to that used in the crime, and appellant’s own words upon

arrest.   Karkaria is wholly inapposite.     Appellant’s sufficiency claim is

patently meritless. The evidence was overwhelmingly sufficient to support

the jury’s verdict.

      Appellant next argues that he is entitled to an evidentiary hearing or a

new trial based on after-discovered evidence.       (Appellant’s brief at 37).

After-discovered evidence is the basis for a new trial when it: 1) has been

discovered after the trial and could not have been obtained at or prior to the

conclusion of trial by the exercise of reasonable diligence; 2) is not merely

corroborative or cumulative; 3) will not be used solely for impeaching the

credibility of a witness; and 4) is of such nature and character that a new

verdict will likely result if a new trial is granted. Commonwealth v. Boyle,

625 A.2d 616, 622 (Pa. 1993); Commonwealth v. Smith, 540 A.2d 246




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(Pa. 1988).     Further, the proposed new evidence must be “producible and

admissible.” Smith, 540 A.2d at 263.

      Appellant argues that:

              the after-discovered evidence is that [the victim]
              was released early from jail to house arrest in
              violation of the agreement made with the state,
              because he had to testify “truthfully” at trial in order
              for him to be released to house arrest and if he did
              not testify “truthfully”, and therefore committed
              perjury even one time, the agreement was supposed
              to have automatically vacated.

Appellant’s brief at 37-38.     It seems that appellant contends that the fact

that the victim was released to house-arrest after testifying in his trial was

after-discovered evidence that entitles him to a new trial.          In his brief,

appellant’s argument is composed of different instances in which he believes

the victim testified falsely.

      We may quickly dispose of this claim. The victim’s release from jail to

house-arrest does not constitute “after-discovered evidence.”             As the

Commonwealth avers, prior to trial the Commonwealth informed appellant

that a deal was made between the Commonwealth and the victim that he

would be released to house-arrest if he testified truthfully at appellant’s trial.

The victim testified about this agreement at trial.          Thus, this was not

after-discovered evidence, as it was known to both appellant and the jury

during trial.   Appellant’s “discovery” of the victim’s status of house-arrest

does not alter the fact that he was aware of this agreement prior to trial.

Additionally, as stated previously, after-discovered evidence that only


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impeaches the credibility of a witness is not sufficient to justify the granting

of a new trial. Boyle, supra. It is clear that the sole probative effect of

appellant’s alleged evidence would be merely to impeach the credibility of

the victim. Accordingly, there was no new evidence that would change the

outcome of the trial.

      The third issue presented is whether there was misconduct by the trial

court or the prosecution. Appellant presents a virtual laundry list of reasons

averring why the actions of the trial court were so outrageous that he is

entitled to a new trial. He also argues that the prosecution was malicious,

as the victim did not testify against him in prior hearings. These arguments

are meritless and belied by the record.         As the Commonwealth aptly

observed, the trial court demonstrated extreme patience while appellant

represented himself at trial. The record and the trial court opinion indicate

the court acted with caution to protect appellant’s rights.        (Trial court

opinion, 10/21/13 at 2-9.)

      The fourth contention is that the trial court lacked jurisdiction to try

the case since he filed a notice of removal with the federal district court

under 28 U.S.C. § 1446. (Appellant’s brief at 52.) No relief is due and we

find the record actually belies appellant’s claim.   The federal district court

remanded appellant’s case back to the state court in an order dated July 12,

2011. However, appellant’s brief does not address this order. Rather, he

only focuses on a second removal attempt which was not known to the trial



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court until the end of trial.   (Notes of testimony, 5/2/13 at 41-43.)      Two

weeks after the federal district court remanded the matter, appellant filed a

pro se notice of removal, removing this same case to the United States

District Court for the Middle District of Florida. The Middle District of Florida

transferred the removal action to the Eastern District of Pennsylvania.

Appellant’s standby counsel informed the trial court that appellant had filed

a petition in federal court for “notice of removal, a notice of Communist

conspiracy to deprive him of his rights, and . . . a couple other things.” (Id.

at 42.)

      Section 1446, which allows for removal of an action from state court to

federal court, requires a party to file a petition for removal in federal court

and promptly give notice to adverse parties and file a copy of the petition

with the state court. 28 U.S.C. § 1446(e). Put simply, there is no evidence

in the record demonstrating the Court of Common Pleas of Montgomery

County lacked jurisdiction or that appellant complied with the notice

provisions of 28 U.S.C. § 1446, procedure for removal from state court.

Additionally, we note that this claim is moot as the second pro se notice of

removal was denied in federal court on October 26, 2012.

      Next, appellant asserts the Commonwealth violated his rights under

Batson v. Kentucky, 476 U.S. 79 (1986), by utilizing a peremptory strike

in a manner which discriminated against African-Americans. The trial court

found that there was no prima facie case of discrimination based on the



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fact that the prosecutor eliminated one African-American and there was not

a pattern of discriminatory strikes. We agree.

      Batson describes a three-step process in evaluating claims of racial

discrimination. First, the defendant must make out a prima facie case that

the prosecutor has employed race-based challenges.3               Commonwealth v.

Cook, 952 A.2d 594, 602-603 (Pa. 2008).              Second, the prosecution must

then offer a race-neutral explanation for striking the juror.

              The second prong does not demand an explanation
              that is persuasive, or even plausible. Rather, the
              issue at that stage is the facial validity of the
              prosecutor’s explanation. Unless a discriminatory
              intent is inherent in the prosecutor’s explanation, the
              reason offered will be deemed race neutral.

Id. Third, the trial court must determine whether the defendant has proven

purposeful discrimination.         “[T]he trial court’s decision on the ultimate

question of discriminatory intent represents a finding of fact of the sort

accorded great deference on appeal and will not be overturned unless clearly

erroneous.” Id. at 603.

      In the instant case, even assuming arguendo that appellant made a

preliminary    showing    of   a     prima   facie    case   of    purposeful   racial


3
  In order to establish a prima facie case that the Commonwealth has used
peremptory challenges in a racially discriminatory manner, the defendant
must show that he is a member of a cognizable racial or ethnic group and
that the prosecutor has used peremptory challenges to remove persons of
such racial group from the venire. The defendant is entitled to rely on the
fact that peremptory challenges are a jury selection practice that permits
discrimination by those who have a mind to do so. Commonwealth v.
Jones, 951 A.2d 294 (Pa. 2008).


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discrimination, the record confirms the trial court’s finding that the

Commonwealth      gave   a     credible   race-neutral   reason   for   excluding

Juror Number 3,    who    is   African-American,    as    is   appellant.    The

Commonwealth had a race-neutral explanation: he was concerned that the

juror, who was a pharmacist, may have had an issue with the victim who

had a history of dealing with OxyContin. Both state and federal courts have

held that nature or type of employment constitutes a valid, race-neutral

explanation. See Cook, supra (affirming PCRA court’s finding that nature

of employment was a valid race-neutral reason).           There is no basis to

overturn the trial court’s finding that there was no Batson violation.

      The sixth issue concerns whether the trial court denied the appellant a

meaningful appeal as the transcripts from two pre-trial hearings are missing;

specifically, the bench warrant hearing on August 10, 2011, and a pre-trial

conference on October 18, 2011. (Appellant’s brief at 59.) Appellant directs

our attention to Commonwealth v. Shields, 383 A.2d 844 (Pa. 1978),

wherein portions of the trial transcript were lost that included potential

prejudicial comments made by the prosecution during closing arguments.

We agree with the Commonwealth that Shields is distinguishable as the

unavailable transcripts in this matter were not related to appellant’s trial but

were “procedural hearings to move the case through the legal system.”

(Commonwealth’s brief at 28.) “What happened during the bench warrant




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hearing and pre-trial conference did not affect the ultimate outcome of

[appellant’s] case.” (Id.) No relief is due.

      Appellant’s seventh claim concerns whether the District Attorney’s

Office of Montgomery County had standing to prosecute the case and

whether the Court of Common Pleas of Montgomery County had subject

matter jurisdiction. (Appellant’s brief at 59.) Appellant seems to be arguing

that the trial court and the state are not the injured party, but rather

Mr. Schwarz is the “real party of interest” and only the victim has “standing

to maintain a complaint.” (Id. at 60.)

      “It is a well-settled principle of law that a crime is an offense against

the sovereignty, a wrong which the government deems injurious not only to

the victim but to the public at large, and which it punishes through a judicial

proceeding in the Commonwealth’s name.”         Commonwealth v. Malloy,

450 A.2d 689, 691 (Pa.Super. 1982). “The prosecutor’s duty is to vindicate

the interest of the Commonwealth not the interest of any particular

individual.”   Commonwealth v. Price, 684 A.2d 640, 642 (Pa.Super.

1996). Though the same wrongful act may constitute both a crime and a

tort, the tort is a private injury which is to be pursued by the injured party.

Malloy, supra. Criminal prosecutions are not to settle private grievances

but are to rectify the injury done to the Commonwealth.             It is well

established that district attorneys, in their investigative and prosecutorial

roles, have broad discretion over whether charges should be brought in any



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given case. “A District Attorney has a general and widely recognized power

to   conduct   criminal   litigation   and      prosecutions   on   behalf   of   the

Commonwealth, and to decide whether and when to prosecute, and whether

and when to continue or discontinue a case.”                   Commonwealth v.

DiPasquale, 246 A.2d 430, 432 (Pa. 1968).

      Next, appellant argues that the             trial court lacked jurisdiction.

(Appellant’s brief at 62-63.) As the Commonwealth observes, the courts of

common pleas have statewide jurisdiction in all cases arising under the

Crimes Code. See Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa.

2003) (distinguishing venue from subject matter jurisdiction and holding

that “all courts of common pleas have statewide subject matter jurisdiction

in cases arising under the Crimes Code”). Appellant’s claims are baseless.

      Turning to the ninth issue, appellant claims that the verdict was

against the weight of the evidence citing to the victim’s inconsistent

statement and alleged corrupt acts of the trial court.         (Appellant’s brief at

63-66.)

           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


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            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[,] [t]he
            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, 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) (emphasis in the

original) (citations omitted).

      We cannot find that the trial court abused its discretion when it denied

appellant’s weight of the evidence claim. It was the function of the jury as

the finder-of-fact to evaluate the evidence and determine the weight it

should be given. The trial court reasoned that the verdict rendered did not

shock its conscience.    (Trial court opinion, 10/21/13 at 15.)       The victim

testified that he recanted his original identification during the preliminary

hearing because appellant threatened him. He also testified that the letter

he sent to the District Attorney’s office was coerced by appellant.           In

addition to the victim’s testimony, the Commonwealth presented five



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witnesses corroborating the victim’s account of what took place on April 3,

2011. The jury evidently found the Commonwealth’s witnesses credible and

chose not to believe appellant’s version of the events. Based on our review,

we find no abuse of the trial court’s discretion in refusing to award a new

trial based on the weight of the evidence.

      The remaining question for our review is whether the Honorable

Joseph A. Smyth abused his discretion when he failed to recuse himself.

“[A] trial judge should recuse himself whenever he has any doubt as to his

ability to preside impartially in a criminal case or whenever he believes his

impartiality can be reasonably questioned.”    Commonwealth v. Cain, 29

A.3d 3 (Pa.Super. 2011), quoting Commonwealth v. Darush, 459 A.2d

727, 731 (Pa. 1983).     The argument in support thereof accuses the trial

court of perjury, bias, obstructing justice, witness tampering, and fraud.

(Appellant’s brief at 66-70.)   There is nothing in the record, aside from

appellant’s claims, to suggest that the trial court should have recused itself.

Rather, as the Commonwealth notes, Judge Smyth consistently attempted to

explain the legal process to appellant who steadfastly refused to cooperate.

      Judgment of sentence affirmed.4




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/30/2014




4
  Appellant’s two pro se motions to apply the doctrine of judicial notice, filed
July 11, 2014 and July 18, 2014, are denied.


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