J-S05020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD HUSTON AYCOCK                      :
                                               :
                       Appellant               :   No. 1191 MDA 2019


        Appeal from the Judgment of Sentence Entered April 19, 2019,
              in the Court of Common Pleas of Dauphin County,
            Criminal Division at No(s): CP-22-CR-0006001-2017.

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                   FILED: MARCH 30, 2020

       Richard Aycock appeals, nunc pro tunc, from the judgment of sentence,

imposing an aggregate sentence of 9 to 18 years of incarceration, after a jury

convicted Aycock of persons not to possess a firearm, carrying a firearm

without a license, discharging a firearm into an occupied structure, recklessly

endangering another person, possessing a controlled substance by a person

not registered, and possessing a small amount of marijuana.1 We affirm.

       The jury found that, on October 21, 2017, Aycock was drinking in the

Paxton Street Pub, a bar belonging to Jay Hunter. The bartender, William

Latchford, informed Mr. Hunter that he would no longer serve Aycock alcohol,

because he was visibly intoxicated.

____________________________________________


1 18 Pa.C.S.A. § 6105(a)(1), 18 Pa.C.S.A. § 6106(a)(1), 18 Pa.C.S.A. §
2707.1(a), 18 Pa.C.S.A. § 2705, 35 Pa.C.S.A. § 780-113(a)(16), 35 Pa.C.S.A.
§ 780-113(a)(31)(i), and 18 Pa.C.S.A. § 4910(1).
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      Next, Aycock stood up and pointed a gun at Mr. Latchford. Mr. Hunter

and his bouncers quickly removed Aycock from the establishment. According

to Mr. Hunter’s testimony, “We proceeded to get him out, and he pulled the

gun out of his pocket, and then proceeded—I held the gun. I grabbed the

barrel of the gun and his arm, so that he couldn’t proceed to bring it up. And

we got him outside, and when we got him outside, I heard something fall,

which I’m thinking was the gun, because I seen him bend over in the video

that we took. And he pulled it up, picked it up, and fired it through the door.”

N.T., 2/13/19, at 23-24.

      He identified Aycock, both out-of-court and in-court, as the man whom

he wrestled out of his bar and who had opened fire on the bar.               The

Commonwealth submitted a video-surveillance recording of this incident into

evidence that supported Mr. Hunter’s versions of events. It also submitted

forensics evidence and photos that showed the bullet’s entrance into Paxton

Street Pub. “An entry-hole indicated that a projectile came through the front

door of the bar, entered the ceiling of the bar, and lodged somewhere in

between the ceiling and the floor of the apartment located above the bar.”

Trial Court Opinion, 9/10/19, at 4.

      Mr. Latchford also testified. His recollection of events coincided with Mr.

Hunter’s, and he likewise positively identified Aycock as the shooter.       Mr.

Latchford was “very certain” of this fact. N.T., 2/13/19, at 52.

      Shortly after the incident, a policeman observed Aycock nearby, wearing

clothing that matched Mr. Hunter’s description of the shooter.       The officer

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repeatedly asked Aycock to stop, but he refused to comply. He continued

walking away from the officer, despite numerous requests that he halt.

Another officer came to assist. The police eventually had to taser Aycock to

restrain and arrest him. A search of his person revealed a bag of marijuana

and a bag of crack cocaine. The officers never recovered the gun.

          The jury convicted Aycock, and the trial court sentenced him as stated

above. Originally, Aycock did not appeal, but the trial court later reinstated

his appellate rights, nunc pro tunc. He filed a post-sentence motion, claiming

that the verdict was against the weight of the evidence. The trial court denied

relief.

          This timely appeal followed.

          Aycock raises one issue for our review:

             Whether the trial court abused its discretion in denying
             [Aycock’s] post-sentence motion, because the jury verdict
             was so contrary to the weight of the evidence as to shock
             one’s sense of justice, where [he] was never shown to be
             the person who fired shots into the bar . . . .

Aycock’s Brief at 5.

          When facing a weight-of-the-evidence issue on appeal, it is critical that

this Court not overstep its very limited role. We do so by adhering to a highly

deferential standard of review.

          As the Supreme Court of Pennsylvania reminded this Court, after we

erroneously overturned various convictions on such an appellate theory:

             An appellate court’s standard of review when presented with
             a weight of the evidence claim is distinct from the standard

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         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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in

original) (citations omitted).

      The High Court also went to great lengths to explain what it means by

an abuse-of-discretion review. “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.” Id. “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.

(emphasis added).

      Here, the trial court said, “The guilty verdict certainly did not shock one’s

sense of justice.”   Trial Court Opinion, 9/10/19, at 6.       In arguing to the

contrary, Aycock fails to appreciate the difference between a de novo review

and one where we review only for an abuse of discretion. Throughout his

argument, Aycock repeatedly asserts the arguments he made before the trial

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court. He claims that he “was not shown to be the person who shot through

the door of the Paxton Street Pub.” Aycock’s Brief at 15. He next explains

why he believes that the Commonwealth’s evidence and the testimony of Mr.

Hunter and Mr. Latchford were all unreliable. He also reminds us that the

Commonwealth never produced the weapon used in the shooting. See id. at

16.

      However, all of this goes to the weight that the jury may afford the facts

of record. None of it demonstrates how or that the trial court’s decision that

the verdict did not shock its conscience was a misapplication of law, manifestly

unreasoned, or the result of partiality, prejudice, bias, or ill-will. In essence,

Aycock asks us to substitute our view of the facts for that of the trial court by

“stepp[ing] into the shoes of the trial judge and revisit[ing] the underlying

question of whether the verdict was against the weight of the evidence, an

analysis that is not appropriate under the appellate standard of review.” Clay,

64 A.3d at 1056. This we may not do. It is not enough that either Aycock or

this Court might “simply disagree with the jury’s verdict . . . .” Id. at 1057.

      As the Clay Court explained:

         an appellate court must first determine whether the trial
         judge’s reasons and factual basis can be supported. Unless
         there are facts and inferences of record that disclose a
         palpable abuse of discretion, the trial judge’s reasons should
         prevail. It is not the place of an appellate court to invade
         the trial judge’s discretion any more than a trial judge may
         invade the province of a jury, unless both or either have
         palpably abused their function.

               To determine whether a trial court’s decision
         constituted a palpable abuse of discretion, an appellate

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         court must examine the record and assess the weight of the
         evidence; not however, as the trial judge, to determine
         whether the preponderance of the evidence opposes
         the verdict, but rather to determine whether the court
         below in so finding plainly exceeded the limits of
         judicial discretion and invaded the exclusive domain
         of the jury.

Id. at 1056 (quoting Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.

1994)) (emphasis in original) (quotations omitted).

      Aycock does not contend the trial court exceeded its limits of judicial

discretion or invaded the province of the jury. Accordingly, he fails to assert

– much less, establish – that the trial court abused its discretion in concluding

that the jury’s verdict did not shock its sense of justice.

      We dismiss his appellate issue as meritless.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/30/2020




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