J-S29007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN RANDOLPH SLOAN

                            Appellant                 No. 976 WDA 2014


            Appeal from the Judgment of Sentence January 22, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013842-2011


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                               FILED JUNE 22, 2015

        Appellant, John Randolph Sloan, appeals from the judgment of

sentence entered January 22, 2014, by the Honorable Edward J. Borkowkski,

in the Court of Common Pleas of Allegheny County. We affirm.

        We take the underlying facts of this case from the trial court’s October

21, 2014, opinion.

               On September 18, 2011, Sonya Smith was watching
        television inside the second floor bedroom of her residence at
        9811 Glendale Road, in the Penn Hills section of Allegheny
        County. Smith and Appellant’s co-defendant, Mark Martin, had
        been involved in an intimate relationship since 2006, but became
        estranged in May 2011.        Appellant grew up in the same
        neighborhood as Smith and had contact with Smith during the
        course of her relationship with Martin, as Appellant and Martin
        were friends. Martin was familiar with Smith’s residence from
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     staying there during their relationship. Smith had locked all of
     the doors to her house before retiring to her bedroom. At
     approximately 3:45 A.M. Smith was awakened by the voices of
     Appellant and Martin outside of her home below her bedroom
     window. Smith called the police when she heard prying noises at
     the kitchen window, which was directly below her bedroom.
     Appellant and Martin, who were unable to gain entry through the
     locked doors, broke a window pane in the kitchen door to gain
     entry to Smith’s home….

           Shortly thereafter, Appellant, wearing black sweatpants, a
     black sweatshirt, gloves, a Halloween mask and a paintball
     mask, entered Smith’s bedroom holding a 9mm firearm.
     Appellant ordered Smith to lie on her bed facedown and struck
     Smith in the head and arms multiple times with the firearm.
     Martin, who was wearing light colored clothes and a ski mask,
     entered Smith’s bedroom shortly after Appellant. Both men
     straddled Smith and struck her multiple times in the arms and
     head; Appellant with the 9mm firearm and Martin with a heavy
     object, most likely a crowbar. Smith sustained a total of nine
     broken bones in her arms, bruising on her arms and back, and a
     concussion. As a result of the attack Smith spent several days in
     the hospital and one month in a nursing facility for rehabilitation.

            Following the assault, the two men fled the residence.
     Martin left first, exiting through the sliding glass door in the
     dining room, a door that because of its “stickiness” could only be
     opened by someone familiar with the premises. At the same
     time Penn Hills police officers arrived on scene in response to
     Smith’s 911 call. As Officer Ronald Como approached Smith’s
     residence he saw Martin jog across the street, away from
     Smith’s home.       Officer Richard Pine approached from the
     opposite direction and witnessed Appellant, a short, black male
     with a distinct beard, exiting out the side kitchen door of Smith’s
     residence. Appellant ran towards the rear wooded area of the
     home. Officer Pine gave a description of the man and his
     direction of travel over the radio. As Appellant fled he discarded
     the paintball mask and hat that he wore during the assault in the
     wooded area behind Smith’s home. Appellant continued to flee
     the scene, and discarded the Halloween mask outside a nearby
     residence as he made his way to Frankstown Road.

           Penn Hills Sergeant Patrick Manning, responding to Smith’s
     residence, observed Appellant jogging on Frankstown Road as
     the sergeant traveled toward Smith’s residence. Appellant was

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          less than one-half mile away from Smith’s residence when he
          was observed by Sergeant Manning. Sergeant Manning, based
          on the information broadcast by officers Pine and Como, stopped
          and made contact with Appellant.        Appellant, who had no
          identification on him, was wearing black sweatpants, a black
          sweatshirt, had a distinctive beard, and had mud and grass
          stains on his shoes. Appellant told Manning that he had been in
          a domestic altercation nearby and was “blowing off steam.”
          Appellant was taken to the police station for interview and
          identification purposes. At the time Smith was hospitalized and
          not available for interviewing purposes, consequently Appellant,
          once identified, was released from custody pending further
          investigation.

                A paintball mask and hat were recovered from the wooded
          area behind Smith’s residence, and the Halloween mask was
          recovered from the neighbor’s hard (9818 Glendale Road). The
          hat and paintball mask were tested and the DNA on both items
          was a match to Appellant.         At trial Smith identified the
          Halloween and paintball masks as the masks worn by Appellant
          during the assault. Additionally, Smith identified Appellant by
          his voice and his bowlegged gait.

Trial Court Opinion, 10/21/14 at 5-8 (footnote and record citations omitted).

          Appellant was charged with aggravated assault,1 burglary,2 robbery,3

and three counts of conspiracy.4 A first jury trial, conducted on April 9-13,

2012, resulted in a mistrial when the jury was unable to reach a verdict.

Following a second trial, a jury convicted Appellant of all charges, with the

exception of robbery.            On January 22, 2014, the trial court sentenced

Appellant to an aggregate term of 12 to 24 years’ incarceration. Appellant


____________________________________________


1
    18   Pa.C.S.A.   §   2702(a)(1).
2
    18   Pa.C.S.A.   §   3502(c)(1).
3
    18   Pa.C.S.A.   §   3701(a)(1)(i).
4
    18   Pa.C.S.A.   §   903(c).



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filed a motion for reconsideration of sentence on January 31, 2014, which

the trial court denied. This timely appeal followed.

      Appellant raises the following issue for our review.

      Did the trial court abuse its discretion when it denied Mr. Sloan’s
      post-sentence motion, because the verdicts were against the
      weight of the evidence as Smith’s testimony significantly
      changed from proceeding to proceeding, her identification of Mr.
      Sloan was tenuous and based on conjecture, and Officer Pine’s
      testimony that he observed a man with a significant beard exit
      Smith’s residence is counter to his prior testimony, his police
      reports, and the testimony of other officers?

Appellant’s Brief at 5.

      When reviewing a trial court’s determination whether the verdict is

against the weight of the evidence, we note that,

      [t]he finder of fact is the exclusive judge of the weight of the
      evidence as the fact finder is free to believe all, part, or none of
      the evidence presented and determines the credibility of the
      witnesses.

            As an appellate court we cannot substitute our judgment
      for that of the finder of fact. Therefore, we will reverse a jury’s
      verdict and grant a new trial only where the verdict is so
      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when “the figure of Justice totters on her
      pedestal,” or when “the jury’s verdict, at the time of its
      rendition, causes the trial judge to lose his breach, temporarily
      and causes him to almost fall from the bench, then it is truly
      shocking to the judicial conscience.”

            Furthermore, where the trial court has ruled on the weight
      claim below, an appellate court’s role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the
      weight claim.


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Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)

(quoting Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super.

2007)) (citations omitted).

      Appellant’s argument on appeal fixes largely upon contradictions in the

victim’s identification testimony, as well as that of Officer Pine and Sergeant

Manning. The trial court observed:

            Concerning the identification issue, the jury heard and
      considered testimony from Sonya Smith, Officer Pine and
      Sergeant Manning. This evidence established that: (1) Sonya
      Smith knew Appellant from growing up in the neighborhood; (2)
      Smith had contact with Appellant during her relationship with
      Martin; (3) Smith recognized the voice of Appellant as that of
      her first assailant; (4) Smith recognized the rather distinctive
      bowlegged gait of Appellant, as well as his height; (5) Officer
      Pine identified Appellant as the individual he saw fleeing Smith’s
      home, wearing the same clothes as described by Smith, with a
      beard and bowlegged gait; (6) Sergeant Manning observed
      Appellant fleeing the area approximately one-half mile from
      Smith’s residence and less than ten minutes after Officer Pine
      observed Appellant. (…)

                                 *     *     *

             The jury clearly found Sonya Smith, Officer Pine, and
      Sergeant Manning credible, and Appellant not so. Further, the
      location of the mask with Appellant’s DNA supports the
      testimony of Smith, Officer Pine, and Sergeant Manning. (…)

Trial Court Opinion, 10/21/14 at 10, 13. The trial court’s observations are

supported by the evidence of record.

      Upon review, we find no abuse of discretion by the trial court in

determining that the verdicts were not against the weight of the evidence.

Appellant is correct that various discrepancies existed as to the identification

testimony of the Commonwealth witnesses at different stages in the

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proceedings, but defense counsel had the opportunity to highlight any

discrepancy on cross-examination—and indeed did so.               “[T]he mere

existence of a conflict in the evidence does not mean the trier of fact was

required to resort to speculation.”   Commonwealth v. Hlatky, 626 A.2d

575, 580 (Pa. Super. 1993) (citation omitted).

      Appellant’s challenge to the weight of the evidence amounts largely to

a veiled attack on the credibility of the Commonwealth’s witnesses. Here,

the jury acted well-within its discretion to credit the testimony of the

Commonwealth’s witnesses and not Appellant.          See Commonwealth v.

Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) (“[T]he 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.” As we discern

no abuse of the trial court’s discretion, Appellant’s challenge to the weight of

the evidence is without merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2015




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