J-S67004-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
            v.                           :
                                         :
TOM HAL CORNELISON, III,                 :
                                         :
                 Appellant               : No. 1913 WDA 2013

            Appeal from the Judgment of Sentence July 19, 2012,
                  Court of Common Pleas, Cambria County,
              Criminal Division at No. CP-11-CR-0000769-2011

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED NOVEMBER 17, 2014

     Appellant, Tom Hal Cornelison, III (“Cornelison”), appeals from the

judgment of sentence of the Court of Common Pleas, Cambria County,

following his convictions of burglary, 18 Pa.C.S.A. § 3502(a), criminal

trespass, 18 Pa.C.S.A. § 3503(a)(1)(ii), and criminal mischief, 18 Pa.C.S.A.

§ 3304(a)(4).    After a review of the record, we affirm the judgment of

sentence.

     A summary of the relevant facts and procedural history are as follows.

Cornelison was involved in an on-and-off relationship with Dora Vetter

(“Vetter”). On March 26, 2011, Cornelison called Vetter and asked her if she

would give him a ride to do a few errands. During this time, Cornelison and

Vetter got into an argument. As a result of the argument, Vetter dropped

Cornelison off at an establishment.    Throughout the course of the day,




*Former Justice specially assigned to the Superior Court.
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Cornelison called Vetter numerous times. Vetter took some of the calls but

ignored others.   That evening, Vetter returned to her home to find her

front door broken open and the door frame damaged.            Every room of her

house was in disarray and damaged. Vetter immediately called the police.

      While the police were at her house, Vetter found a wallet on the floor.

The police opened the wallet and found Cornelison’s driver’s license inside.

The police went to Vetter’s neighbors’ homes to ask if anyone had seen

anything.   One neighbor, Judith Litko (“Litko”) told police that Cornelison

knocked on her door and asked to use her phone. Litko allowed Cornelison

to use her phone. After Cornelison put the phone down, Litko watched him

walk across the street to Vetter’s home, slam into the door with his

shoulder, fall into the apartment, and then close the door. When the police

hit the redial button on Litko’s phone, Vetter’s phone rang.

      Cornelison was charged with the aforementioned crimes. A jury trial

commenced on February 29, 2012. At trial, Cornelison did not dispute that

he broke down the door to Vetter’s home and destroyed the house, but

argued that he had permission to be at Vetter’s home. At the conclusion of

testimony, the jury found Cornelison guilty of all charges.

      On July 12, 2012, Cornelison filed a motion for new trial, challenging

the weight of the evidence. The trial court denied the motion for new trial

on July 17, 2012. On July 19, 2012, the trial court sentenced Cornelison to

20 to 40 months of incarceration. Cornelison filed a post-sentence motion



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on July 30, 2012. Oral arguments on the post-sentence motion were held

on October 5, 2012.      In a written opinion on November 1, 2012, the trial

court denied Cornelison’s post-sentence motion.         Cornelison did not file a

direct appeal at that time.

        On June 7, 2013, Cornelison filed a petition for relief pursuant to the

Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et. seq.               On

September 5, 2013, the PCRA court reinstated Cornelison’s direct appeal

rights and right to file post-sentence motions within 10 days.          The PCRA

court    deferred   ruling   on   Cornelison’s   remaining   claims   pending   the

conclusion of direct review. On September 13, 2013, Cornelison filed post-

sentence motions requesting a judgment of acquittal, a new trial, and a

modification of his sentence. On November 7, 2013, the trial court denied

Cornelison’s motions for a judgment of acquittal and a new trial, as well as

Cornelison’s motion to modify his sentence based on excessiveness.              The

court deferred ruling on Cornelison’s motion to modify his sentence based on

the court’s alleged failure to credit Cornelison with a certain amount of time

served.     It finally disposed of Cornelison’s post-sentence motions on

November 18, 2013.

        On November 21, 2013, Cornelison timely filed a notice of appeal to

this Court. He raises the following issue for our review:

             Whether the verdict reached by the jury to convict
             [Cornelison] of burglary and criminal trespass, and
             which was sustained by the trial court on post-



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            sentence motions, was against the weight of the
            evidence presented by the Commonwealth?

Cornelison’s Brief at 4.

      Cornelison      argues   that   “the    Commonwealth         utilized   largely

circumstantial, self-serving, and unreliable evidence against [him,]” and

failed to produce eye-witness testimony of the crimes for which he was

convicted. Id. at 8. Cornelison further argues that “[t]he majority of the

witnesses with knowledge of the situation in this case gave interesting

testimony   that   strongly    suggested     that   [he]   lived   at   the   victim’s

residence[,]” and that the only witness to testify any differently was the

victim. Id. at 8-9.

      In its written opinion pursuant to Pa.R.A.P. 1925(a), the trial court

noted that “the [c]ourt twice denied [Cornelison’s] post-sentence motions

for a new trial challenging the weight of the evidence presented at trial.”

Trial Court Opinion, 1/15/14, at 3. The trial court concluded that it did not

abuse its discretion by denying Cornelison’s motion for a new trial as it

“presided over the trial and the evidence.” Id. Furthermore, the trial court

found that “it cannot be said that the jury rendered a verdict that was so

contrary to the evidence as to shock one’s sense of justice.” Id.

      Our standard of review is well settled:

            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



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          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.’

                                  ***

          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[,] [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



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            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. Horne, 89 A.3d 277, 285-86 (Pa. Super. 2014) (citing

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (emphasis in

original) (citations omitted)).

      In this case, although Cornelison frames the issue as an abuse of

discretion claim, he does not present any argument as to how he believes

the trial court abused its discretion in denying his request for a new trial.

Instead, he directs his entire argument to the underlying question of

whether his convictions are against the weight of the evidence.           See

Cornelison’s Brief at 8-9. As stated above, this is not the question before us

for review, as our review is limited to determining whether the trial court

abused its discretion in ruling upon his weight claim, not the underlying

question of whether the verdict was in fact against the weight of the

evidence. See Horne, 89 A.3d at 285.

      Ignoring this failing, our review of the record reveals that the trial

court did not abuse its discretion in deciding that the verdicts in this case

were not against the weight of the evidence.     At trial, Cornelison testified

that he lived with Vetter, stayed at her apartment when she left for work,

and had a key that she authorized him to purchase. N.T., 2/29/12, at 137-

40. Cornelison stated that he would occasionally stay with his friend, Bert



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Wissinger (“Wissinger”), on 12th Street, but slept at Vetter’s apartment

“[n]inety-nine percent of the time.” Id. at 139.

     Cornelison   also   presented   the   testimony   of   his   mother,   Linda

Spangenberg (“Spangenberg”), and Wissinger in support of his testimony.

Spangenberg testified that up until the date of the incident, she contacted

Cornelison through Vetter’s cell phone and forwarded mail to him at Vetter’s

apartment “[b]ecause as far as [she] knew, that’s where [he] was living.”

Id. at 118.   Spangenberg further testified that she picked up Cornelison’s

belongings from Vetter’s apartment. Id. Cornelison never told her that he

had personal belongings elsewhere. Id. at 121.

     Wissinger testified that Cornelison stayed at Vetter’s apartment most

of the time but lived with him on 12th Street on the other days. Id. at 130-

31. Wissinger also testified that Cornelison had dishes, clothing, bedroom

items, large containers that had his belongings in them, knives, and jewelry

at his home. Id. at 130.

     In contrast, Vetter testified that only her name was on the lease of the

apartment and that Cornelison lived with Wissinger on 12th Street. Id. at

37-38. Although Cornelison had personal belongings at her apartment and

stayed over at the apartment three to four times a week, Vetter testified

that Cornelison did not have a key to the apartment. Id. at 38-39. Vetter

would give Cornelison a key at times but he did not have his own key to

enter when he wanted to because she “didn’t want him to have a key all the



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time” and did not want him in the apartment when she had not given him

the key. Id. at 39-40.

      The Commonwealth also presented the testimony of Litko, Vetter’s

neighbor, who testified that she witnessed Cornelison break down Vetter’s

door on the night in question.      Id. at 27.   Litko testified that Cornelison

knocked on her door and asked if he could use her phone. Id. at 26. Litko

stated that she had never seen Cornelison before that day.           Id.   After

Cornelison used the phone, Litko testified that Cornelison ran through her

yard, “[a]nd when he hit the curb he started at full gait, and he smashed his

shoulder into [Vetter’s] door and broke the door down.”             Id. at 27.

Cornelison fell onto the steps on the inside of the apartment and slammed

the door shut. Id.

      The jury heard the conflicting testimony and made its credibility

determinations, apparently choosing to believe Vetter that Cornelison did not

live at her apartment and was not permitted to be there on the evening in

question.   As we are mindful of “our obligation to respect the fact finder’s

credibility determinations and the weight it accords the evidence,” we find

no fault with the trial court’s conclusion that the verdict is so contrary to the

evidence as to shock one's sense of justice. See Renna v. Schadt, 64 A.3d

658, 670 (Pa. Super. 2013). Finding no abuse of discretion, Cornelison is

not entitled to relief on his weight claim.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2014




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