J-S63007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD KIPP BRASWELL                       :
                                               :
                       Appellant               :   No. 1563 WDA 2017

              Appeal from the Judgment of Sentence May 8, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003147-2016


BEFORE:      OTT, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 20, 2019

        Donald Kipp Braswell appeals from the judgment of sentence imposed

on May 8, 2017, in the Court of Common Pleas of Allegheny County. In a non-

jury trial, Braswell was convicted of indecent assault without consent, 18

Pa.C.S. § 3126(a)(1).         The trial judge sentenced Braswell to two years’

probation.1 The sole issue raised in this appeal is a challenge to the weight of

the evidence. Based upon the following, we affirm.

        The evidence presented at trial was summarized by the trial court, as

follows:

        Jasmine Mull (Mull) testified that in January of 2016, she was an
        inmate at the Allegheny County Jail where she obtained a job as
____________________________________________


   Former Justice specially assigned to the Superior Court.

1 Braswell is also subject to registration pursuant to the Sexual Offender
Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.42,
registration for 15 years, for his Tier I offense.
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     a lounge worker. She worked in the jail cafeteria, serving food,
     and her supervisor was [Braswell]. Mull testified that [Braswell]
     asked her inappropriate questions, such as whether she liked oral
     sex or if she liked “69”. She also recalled that he came in one day
     and called her by her middle name and she had no idea where he
     got that information because it wasn’t on her record. While Mull
     was taking a lunch break from her work on January 18, 2016,
     [Braswell] came up to her and told her that he could not stop
     thinking about her and that he was so consumed with his thoughts
     of her that he was unable to have sex with his wife. After Mull
     returned to her work station, [Braswell] had her move so that he
     could stand behind her. [Braswell] then reached his hand around
     her and grabbed her vagina over her clothes. Mull testified that
     she stood there in complete and utter shock and that her face was
     be[e]t red. [Braswell] then stated to Mull, “from the looks of it,
     you want to touch mine too”.

     Mull went into the dish room with another inmate telling her what
     had just happened. The inmate informed her to tell the first
     correctional officer she saw. This inmate began to tell a male
     correctional officer what happened, but Mull was not comfortable
     speaking to a male. Mull stated that when a female correctional
     officer named Parsons arrived, Mull asked Officer Parsons to take
     her upstairs. When Officer Parsons asked her why, Mull told her
     that the kitchen supervisor touched her inappropriately and she
     did not feel comfortable. Mull was taken to the fourth level and
     put in an interview room. She met with Captain Vanchieri and told
     him what had happened to her.

     On cross-examination, it was revealed that Mull had been
     convicted of various offenses including, impersonating a public
     servant, forgery, access device fraud, theft and receiving stolen
     property.

     Allegheny County Jail Captain Jack Vanchieri, (“Vanchieri”),
     testified it was his job to supervise the entire jail. Vanchieri also
     testified that [Braswell] worked for Aviands, a food service
     company that had a contract with the jail. Vanchieri had a
     conversation with the victim, Mull, on January 18, 2016 sometime
     between 4:00 and 6:00 p.m. Mull informed Vanchieri that
     [Braswell] inappropriately grabbed her crotch.

     Allegheny County Police Inspector William Palmer, (“Palmer”),
     testified that in January of 2016 he was in charge of internal

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     investigations at the Allegheny County Jail. After reviewing the
     allegations made by Mull, Palmer contacted [Braswell] by phone
     and indicated he wanted to obtain [Braswell’s] side of the story.
     Palmer indicated that it was [Braswell’s] idea to have the police
     officers come to his home to get his statement. Palmer and his
     partner, Ron Passaro, drove to [Braswell’s] home in Mt. Oliver to
     interview him. The written transcript of the interview, dated
     January 21, 2016, establishes that [Braswell] was told that he was
     not compelled to make a statement as a condition of employment
     and he was free not to speak to the officers. A copy of the
     Transcibed - Recorded Interview, dated January 21, 2016, is
     attached hereto.

     [Braswell] informed the officers that he could have unintentionally
     touched Mull in an inappropriate way. He stated to the officers
     that after the unintentional touching he told the victim, Mull, that
     he hoped she didn’t say anything about it because he did not do
     anything and he wanted to make sure she understood the
     touching was unintentional. [Braswell] explained to the officers
     that he did not remember technically what he did to Mull but he
     hoped she did not take his actions as a sexual assault because
     that is not what he did.

     According to [Braswell], on January 18, 2016, he had a
     conversation with Mull while she was eating and she was the one
     talking about sex. He said he just walked away. He denied having
     previous conversations with her about sex or his wife. [Braswell]
     did admit that he looked up Mull’s court date and learned her
     middle name on the computer when he got home from work.

     [Braswell] called three witnesses to testify. First, Irene Zotis
     testified as a character witness for [Braswell]. Next, Correctional
     Officer James Tegtmeier testified that on January 18, 2016, he ate
     in the officer’s cafeteria. He spoke with [Braswell], the victim and
     one or two other workers while he was in the cafeteria and when
     he left the victim was still in the room. He did not notice anything
     unusual about Mull, nor did he observe any inappropriate
     conversation or touching. According to Tegtmeier, he was only in
     the serving area of the cafeteria for two to five minutes. After his
     food was served, he went to the officer’s lounge located in a
     separate room.

     [Braswell] testified on his own behalf. He started working for a
     company that sent him to the Allegheny County Jail in June of

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       2015. His job duties entailed overseeing the inmates who cooked
       and served the food, to issue supplies, and to make sure all items
       were locked and secured. [Braswell] had the power to fire inmates
       if they violated any rules. [Braswell] testified that Mull violated
       the rules by not staying in her work area, congregating with other
       inmates when told not to, and preparing foods that were not on
       the menu. He stated he reprimanded Mull and some other inmates
       on January 18, 2016, for not putting up supplies. According to
       [Braswell], he was told to watch Mull as she was known to set
       people up. He denied having any sexual conversations or physical
       conduct with Mull. [Braswell] asserted that it was Mull that made
       physical contact with him when she rubbed her breasts and vagina
       against his back. Mull then proceeded to walk away and into the
       dish room.

       [Braswell] admitted he met with the officers at his home and at
       his request. He claimed he was overwhelmed when he spoke to
       the officers and he had no idea he could be charged with a crime.
       [Braswell] testified he spoke with the officers for 30-40 minutes
       before being recorded. [Braswell] testified in court that he
       believed Mull set him up for financial gain; he denied touching
       Mull; denied any sort of unintentional touching took place, as
       mentioned in his recorded statement to the police; and claimed
       the officers made suggestions to him through their questions.

Trial Court Opinion, 6/25/2018, at 3-8 (record citations omitted).

       As stated above, the trial court found Braswell guilty of indecent assault.

Following sentencing and the denial of Braswell’s amended post sentence

motion,2 this appeal followed.3

____________________________________________


2 Braswell filed a timely post sentence motion challenging the sufficiency of
the evidence, the weight of the evidence, and alleging ineffectiveness of trial
counsel. Braswell’s counsel also moved for an extension of time to file an
amended post sentence motion and moved to withdraw from representation.
The trial court granted the extension to amend the motion, and granted trial
counsel’s motion to withdraw. The trial court appointed new counsel for
Braswell, who filed the amended post sentence motion.

3 Braswell’s counsel filed a court-ordered Pa.R.A.P. 1925(b) statement within
the extension of time granted by the trial court.

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      Braswell presents the following issue for review:

      Did the [trial] court err in denying the motion for a new trial
      because the verdict was contrary to the weight of the evidence
      presented?     Is the guilty verdict a manifestly unreasonable
      conclusion, and should Mr. Braswell be awarded a new trial such
      that justice may prevail?

Braswell’s Brief at 6.

      A challenge to the weight of the evidence “concedes that the evidence

is sufficient to sustain the verdict, but seeks a new trial on the ground that

the evidence was so one-sided or so weighted in favor of acquittal that a guilty

verdict shocks one’s sense of justice.” Commonwealth v. Lyons, 79 A.3d

1053, 1067 (Pa. 2013) (citation omitted), cert. denied, 134 S. Ct. 1792 (U.S.

2014).

      Our Supreme Court, in Commonwealth v. Clay, 64 A.3d 1049 (Pa.

2013), explained the standard for this Court’s review of a challenge to the

weight of the evidence:

      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. Rather, “the role of
      the trial judge is to determine that ‘notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.’”
      It has often been stated that “a new trial should be awarded when
      the jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail.”




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      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,
          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.

Id., 64 A.3d at 1054-55 (citations omitted). Moreover, in considering a weight

of the evidence claim, we bear in mind that “[t]he jury [or trial court, sitting

as fact-finder] is the ultimate fact-finder and the sole arbiter of the credibility

of each of the witnesses.” Commonwealth v. Clemons, ___ A.3d ___, ___

[2019 Pa. LEXIS 338 at *47] (Pa. January 23, 2019).

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      Here, in rejecting Braswell’s weight claim, the trial court opined:

      [Braswell’s] first alleged error is that Mull’s testimony was not
      credible. This Court properly allowed [Braswell’s] counsel to cross-
      examine Mull regarding her crimen falsi convictions. This Court’s
      credibility determination regarding Mull does not shock one’s
      conscience. The fact that Mull had crimen falsi does not undermine
      the court’s verdict. A fact-finder is not required to disbelieve a
      witness because she has crimen falsi convictions. In the case at
      bar, there is overwhelming evidence from the victim herself to
      sustain the verdict of guilty of Indecent Assault.

      [Braswell] next contends, without citation to authority, that
      [Braswell’s] recorded statement was given undue weight because
      it was not his full and complete statement. This contention is
      meritless. Officer Palmer testified that the recorded statement
      basically recapped what [Braswell] and officers discussed prior to
      the recording. At trial, [Braswell] was asked whether there was
      any information or details that he gave the officers that was not
      contained in the recorded statement. [Braswell] responded the
      only information that was not included in the recorded statement
      was that he told the officers he felt he was being set up for
      financial gain by Mull. As such, reliance upon [Braswell’s] recorded
      statement was proper.

      Finally, [Braswell] alleges the verdict was against the weight of
      the evidence because his testimony was credible. This allegation
      has no value. As cited earlier, it is for the court to determine the
      credibility of the witnesses. The fact that this Court implied that
      [Braswell] lacked credibility does not shock one’s conscience.
      Additionally, a fact-finder may perceive that the inconsistencies
      between [Braswell’s] trial testimony and his statement to the
      officers were material. [Braswell] informed Officer Palmer that he
      could have unintentionally touched Mull in an inappropriate way.
      Yet, at trial, he testified he did not touch Mull at all and further
      alleged that she was the one who engaged in sexual touching. This
      Court believes the variations in [Braswell’s] story to be critical and
      undermines his credibility.

Trial Court Opinion at 9 - 11.

      Braswell argues his recorded statement to police lacked completeness

and should not have been relied upon by the trial court, and that his testimony

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was credible and any inconsistencies between his trial testimony and his

recorded statement to police were not substantive. We find these arguments

present no basis upon which to disturb the decision of the trial court.

      In his recorded statement, Braswell stated, inter alia: “I moved, may

have moved something and touched her [Mull], and she may have thought

that I was doing something intentionally. Then she walked behind me and she

brushed up against me and at that point it’s like I’m just like basically saying

I hope she don’t take it like I’m sexually doing something to her.”       N.T.,

2/10/2017, at 32. At trial, on direct examination, Braswell testified he had no

physical contact with the complainant, and the complainant contacted him:

“On her way back from the dish room she walked behind me.            When she

walked behind me she rubbed her breast and her vagina against my back and

her hand touched the left side of my back as if she was rubbing it on her way

past me and I just stood there in a frozen state like being surprised that she

would do something like that.” N.T., 2/10/2017, at 22. On cross examination,

Braswell denied any unintentional touching. Id. at 31.

      The trial court, hearing all the evidence, found the complainant was a

credible witness and Braswell was not credible, and that the variations

between the recorded statement and his testimony were material and

undermined his credibility.

      Braswell argues his recorded statement and his trial testimony

“demonstrate a distinction without a difference.” Braswell’s Brief at 16. He


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maintains a close reading of the recorded statement reflects he did attempt

to tell the police inspector that Mull assaulted him, referring to his statement

“she walked behind me [and] she brushed up against me,” but that the

inspector steered the questioning in a different direction. See Braswell’s Brief

at 17. Further, Braswell attacks the complainant’s credibility because she has

crimen falsi convictions, and elevates his own account over hers, relying on

the testimony of his character witness, and arguing that although other

individuals were present in the room, no independent witnesses were offered

by the Commonwealth. He claims the trial court’s credibility determinations

are “tantamount to a ‘denial of justice.’” Braswell’s Brief at 19. He further

contends “[t]he Commonwealth’s evidence was so tenuous, vague and

uncertain, and of such low quality, that the verdict of guilty shocks the

conscience.      Accordingly, when revisiting the testimony at this trial, no

reasonable fact finder should have found Mr. Braswell guilty.” Braswell’s Brief

at 19.

         Braswell overlooks the fact that this Court may not reweigh the evidence

or make credibility determinations. At trial, when asked whether there was

any information he had given to the police inspector that was not included in

the recorded statement, Braswell responded the only missing detail was that

he believed the complainant set him up for financial gain. Therefore, Braswell

had the opportunity to address any incompleteness in the recorded statement.

Furthermore, the trial court, sitting as fact-finder, was free to find Mull


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credible, and find Braswell not credible and resolve the inconsistencies

between his recorded statement and his trial testimony against him.               As

discussed above, our Supreme Court has instructed that we must review the

trial court’s exercise of discretion in deciding the weight claim.    Applying this

deferential standard of review, we conclude Braswell has failed to show that

the trial court, in denying the motion for a new trial, exceeded the limits of its

discretion by “reaching a manifestly unreasonable judgment, misapplying the

law, or basing its decision on partiality, prejudice, bias or ill will.” Clay, supra,

64 A.3d at 1056. Accordingly, Braswell is not entitled to relief on his weight

of the evidence claim.

        Judgment of sentence affirmed.

        Judge Murray did not participate in the consideration or decision of this

case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2019




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