J-S83037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAUN C. FAIRMAN,                          :
                                               :
                       Appellant               :       No. 999 WDA 2018

         Appeal from the Judgment of Sentence Entered May 23, 2013
               in the Court of Common Pleas of Indiana County
            Criminal Division at No(s): CP-32-CR-0001275-2012

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

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 28, 2019

        Shaun C. Fairman (“Fairman”) appeals from the judgment of sentence1

imposed following his convictions of second-degree murder2 and burglary.3

We affirm.




____________________________________________


1Fairman purports to appeal from the June 19, 2018 Order denying his nunc
pro tunc Post-Sentence Motion. “However, a direct appeal in a criminal case
can only lie from the judgment of sentence.” Commonwealth v. Lawrence,
99 A.3d 116, 117 n.1 (Pa. Super. 2014).

2   18 Pa.C.S.A. § 2502(b).

3 18 Pa.C.S.A. § 3502(a). We note that the offense of burglary occurs where,
inter alia, a person enters an occupied building or structure “with the intent to
commit a crime therein.” Id. (emphasis added). Fairman contends that he
lacked such an intent, as he intended to commit suicide, not a crime.
J-S83037-18



       In its Opinion, the trial court set forth the relevant factual and procedural

history, which we adopt for the purpose of this appeal.           See Trial Court

Opinion, 6/19/18, at 1-3.4

       On appeal, Fairman contends that his convictions of second-degree were

clearly against the weight of the evidence presented at trial.            Brief for

Appellant at 24.       Specifically, he argues that the second-degree murder

conviction cannot stand, because such a murder must be committed in the

perpetration of a felony and the weight of the evidence goes against his

conviction of burglary (a felony). Id. at 25-31; see also footnote 3, supra.

Notably, Fairman’s brief fails to highlight a single example of testimony or

evidence that would support his claim. Rather, he relies on bald assertions

that “the evidence clearly shows that [he] was intent upon killing himself … as

individuals were deeply concerned for [his] well-being,” and that “material

witnesses testified that he was drunk.” Brief for Appellant at 28-29.

               [W]here 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.




____________________________________________


4 Fairman filed a timely Notice of Appeal and a Concise Statement pursuant to
Pa.R.A.P. 1925(b). By Order dated September 5, 2018, the trial court adopted
its June 19, 2018 Opinion as its Pa.R.A.P. 1925(a) Opinion.


                                           -2-
J-S83037-18


Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)

(citations and quotations omitted) (emphasis added).

             An abuse of discretion is not merely an error of
          judgment, but is rather the overriding or misapplication of
          the law, or the exercise of judgment that is manifestly
          unreasonable, or the result of bias, prejudice, ill-will[,] or
          partiality, as shown by the evidence or the record.

Commonwealth v. Bullock, 170 A.3d 1109, 1117 (Pa. Super. 2017).

      Ascribing weight to the evidence presented at trial is solely within the

province of the finder of fact, which is free to believe all, part, or none of the

evidence presented and to determine the credibility of the witnesses. Rabold,

920 A.2d at 860-61 (Pa. Super. 2007). “It is not for this Court to overturn

the credibility determinations of the fact-finder.”        Commonwealth v.

Blackham, 909 A.2d 315, 320 (Pa. Super. 2006) (citations omitted).

       Fairman’s appeal is predicated entirely on the credibility of testimony.

See Brief for Appellant at 24-31.      Because credibility is the only basis of

Fairman’s appeal, to find an abuse of discretion would require that this Court

improperly substitute its own credibility determination for that of the fact-

finder. Thus, discerning no abuse of discretion by the trial court, we affirm

Fairman’s judgment of sentence.

      Judgment of sentence affirmed.




                                      -3-
J-S83037-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2019




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     :I                                                             INDIANA COUNTY, PENNSYLVANIA
     !i              PENNSYLVANIA
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 I.                                  vs                             NO. 1275 CRIM 2012
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 I: lI               SHAUN C. FAIRMAN,
 II•I                                      Defendant.
     Ii
 11                                              OPINION AND ORDER OF COURT
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                     MARTIN, P.J.
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                            This matter is before the Court on Defendant Shaun C. Fairman's Post-Sentence Motion
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 (1' following the remand of the Appeal of his Petition for Post-Conviction Collateral Relief
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     'I              pursuant to the Post-Conviction Collateral Relief Act (PCRA) from the Superior Court of
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     [i              Pennsylvania.
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                            Defendant's conviction resulted from events late in the evening of June 2, 2012, when
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     11              he went to his former marital residence where his estranged wife, Jessica Fairman, still resided.
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                     At that time, Jessica Fairman had an active Protection From Abuse (PF A) order against
     1
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                     Defendant and had recently filed for divorce. When Defendant returned to the marital

             (       residence, Jessica Fairman's parents, Richard E. Shotts and Candice Shotts, were also present.
     I

                     Upon Defendant's arrival, he was highly intoxicated and proceeded to approach the house,
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                     pound on the kitchen door, and demand to see his wife. When this occurred, a confrontation

                     ensued between Defendant and Richard Shotts, who denied Defendant entry into the home.

                     After Richard Shotts denied him entry, Defendant attempted to force his way into the home and

                     fired a gun into the kitchen door. Following that unsuccessful attempt at entry, Defendant fired

                     through the kitchen window, fatally striking Richard Shotts, and then gained entry via the




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             broken window. Once inside, Defendant went upstairs and was shot twice in the shoulder by
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    lI': his estranged wife, who then called the Pennsylvania State Police.
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    ii              On April 25, 2013, following a jury trial, Defendant was convicted of the offenses of
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    I!       Murder of the Second Degree; Burglary, and two counts of Aggravated Assault. On May 28,
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     I1)I    2013, he was sentenced to incarceration for the rest of his natural life without parole for the
    lI       offense of Murder of the Second Degree.
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    ll11            Defendant filed his original PCRA Petition on February 27, 2015, after which court-

     li II   appointed counsel filed an amended Petition on January 4, 2016. In the Petition, Defendant


    I'       argued that his trial counsel was ineffective for: (1) failing to file an omnibus pretrial motion to

             suppress his statements to police while he was intoxicated and suffering from two bullet
    I        wounds; (2) failing to argue specific case law when Petitioner's plea agreement was rejected;

             and (3) failing to argue that the convictions for murder of the second degree and burglary were

             against the weight of the evidence. A hearing on the matter was held on July 6, 2016, and on

             November 15, 2016, this Court entered an Opinion and Order reinstating Defendant's direct

             appellate rights because he did not receive timely notice of the status of his appeal from his

             appellate counsel.

                     On November 28, 2016, Defendant filed a Notice of Appeal and in his Concise

             Statement of Matters Complained of on Appeal raised similar arguments to those contained in

             the PCRA Petition. In an Opinion issued on December 22, 2017, the Superior Court declined

             to address the weight of the evidence claim because that claim was never presented to the trial

             court in the form of a post-trial motion. When appellate rights are restored, it does not serve as

             an automatic right to file post-sentence motions. Commonwealth v. Liston, 977 A.2d 1089,

             1093 (Pa. 2009). Although this Court restored Defendant's direct a:QP.liHA�ti;i!hts, it did not
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                     explicitly state whether it intended to restore his right to file a post-sentence motion. Absent a
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                     determination at the trial court level, the Superior Court explained that it was without a decision       I
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                            The Superior Court, based on a lack of jurisdiction, also declined to consider the merits

 I  !                of Defendant's claim that trial counsel was ineffective for failing to file a motion to suppress
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                     statements he made while intoxicated and injured. As a result of the reinstatement of
    11
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    !I               Defendant's appellate rights, the judgment of his sentence is no longer final, therefore, this
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                     Court could not properly consider the PCRA Petition on its merits, and in turn, neither could

                     the Superior Court. The Superior Court did not address the other ineffectiveness of counsel
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                     claim, presumably on the same grounds.
    11
        I                    Having set forth these reasons, the Superior Court vacated this Court's Order of

                     November 15, 2016, and remanded it for clarification on whether there was an intent to restore
        I:
                     Defendant's right to file a post-trial motion on the weight of the evidence claim. On January

                     22, 2018, this Court ordered the filing of a post-trial motion within thirty days, to which

                     Defendant timely responded. On March 29, 2018, a hearing was held on the post-trial motion,

                     after which the parties submitted briefs on the weight of the evidence issue.

                             "The weight of the evidence is exclusively for the finder of fact who is free to believe

                     all, part, or none of the evidence and to determine the credibility of the witnesses."

                     Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). "A motion for new trial on the

                     grounds that the verdict is contrary to the weight of the evidence, concedes that there is

                     sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view

                     the evidence in the light most favorable to the verdict winner." Commonwealth v. Widmer,

                     744 A2d 745, 751 (Pa. 2000). While a defendant
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   i I        defendant questions which evidence should be believed; effectively the weight to be given to
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   i I testimonial evidence. Armbruster v. Horowitz, 744 A.2d 285, 286 (Pa.Super. 1999). This
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   II         determination requires an assessment of the credibility of witnesses. Id.
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         I            "A new trial should not be granted because of a mere conflict in the testimony or
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              because the judge on the same facts would have arrived at a different conclusion. A trial judge
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       I'I    must do more than reassess the credibility of the witnesses and allege that he would not have
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              assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is
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       Ii     against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial

       11
       1,     judge is to determine that "notwithstanding all the facts, certain facts are so clearly of greater

       11     weight that to ignore them or to give them equal weight with all the facts is to deny justice."
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       iI     Widmer at 751 (Citing Thompson v. City of Philadelphia, 493 A.2d 669, 673 (Pa. 1985). After

       II!I   reviewing a weight of the evidence claim, "a new trial should be awarded when the jury's
       i(     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." Commonwealth

              v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (Quoting Commonwealth v. Brown, 648 A.2d 1177,

              1189 (Pa. 1994)).

                      Defendant was convicted of murder of the second degree, a criminal homicide

              committed while a defendant was engaged as a principal or an accomplice in the perpetration of

              a felony. 18 Pa.C.S.A. §2502(b ). The felony giving rise to this conviction was burglary,

              defined by statute in relevant part as follows:

                      A person commits the offense of burglary if, with the intent to commit a crime
                      therein, the person:
                      (ii) enters a building or occupied structure, or separately secured or occupied
                      portion thereof that is adapted for overnight accommodations in which at the
                      time of the offense any person is present; l'I :I Wd 61 NOr a lOZ   .
               18 Pa.C.S.A. §3502(a)(l)(ii)
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                        Defendant concedes that while his conduct would sustain a conviction for murder of the        I
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                 third degree, the conviction for murder of the second degree is improper because his conviction      I
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 i       I       of burglary, the underlying felony, was against the weight of the evidence. At the core of the
                                                                                                                      II
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 i!iI            issue of Defendant's burglary conviction is whether he entered the home with the intent to

                 commit a crime or, as he argues, only with the intent to commit suicide.
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 lI                     To secure a burglary conviction, the Commonwealth is not required to allege or prove
     11
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         I       the particular crime a defendant intended to commit. Commonwealth v. Alston, 651 A.2d
                                                                                                                           I
     l\          1092, 1095 (Pa. 1994 ). While evidence of forced entry does not automatically give rise to an
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                 inference of intent to commit a crime after entry, such intent may be inferred from the totality

                 of the circumstances surrounding the incident. Alston at 1094. The intent may be inferred
     I           from words or actions that bear a reasonable relationship to the commission of a crime. Id.

     lI
     !       I          It is undisputed that Defendant had two loaded firearms in his possession and made a
     /
                 forcible entry into the residence by firing into a door and window. After striking Richard

                 Shotts when firing through the window, Defendant proceeded into the home and did not

                 attempt suicide as he claims he intended to, but sought out other occupants. Trial testimony

                 indicated that Defendant had previously threatened to "take care of' Richard Shotts should

                 Jessica Fairman inform him of her ongoing marital problems with Defendant. (Trial Transcript

                 p. 39). Defendant himself also testified at trial that he went to the house to "scare the shit out

                 of some people". (Trial Transcript p. 137).

                         When presented with all of the evidence, the jurors were free to determine what

                 evidence they believed and which witnesses were credible. From the evidence of Defendant's

                 forcible entry and the fatal wounding of Richard Shotts, jurors could then further infer that

                 Defendant intended to commit a crime based on his posse,�oil      oHl(t1rffi\tmd his own
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I!     statements. Jurors could also infer that Defendant's claim of only intending to commit suicide
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i I was not credible because he had multiple firearms and never made such an attempt. From tlie
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       totality of the circumstances, the jurors could properly infer Defendant's intent to commit a


   I   crime inside the residence. For these reasons, the Court finds nothing to indicate that the jury's

   I   verdict was so contrary to the evidence that it "shocks one's sense of justice" so as to warrant a
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I'     new trial.

II             Wherefore, the Court makes the following Order.
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