J-S13018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :              IN THE SUPERIOR COURT OF
                                 :                   PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    MANDY SUE STINE              :
                                 :
                  Appellant      :              No. 899 WDA 2017
                                 :

              Appeal from the Judgment of Sentence May 2, 2017
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
                           CP-07-CR-0001469-2016


BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                                  FILED APRIL 20, 2018

       Appellant, Mandy Sue Stine, appeals from the judgment of sentence

entered on May 2, 2017, in the Blair County Court of Common Pleas. 1 We

remand with instructions and retain jurisdiction.

       The trial court did not draft an opinion in this matter, so we glean the

factual background from the certified record and notes of testimony. In 2015,

David Leonard began working as a confidential informant (“CI”) for the

Altoona Police Department.          N.T., 2/9/17, at 44.    As a CI, Mr. Leonard

purchased controlled substances from drug dealers, and police officers would

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1 While Appellant purports to appeal from the trial court’s order denying her
post-sentence motion, the appeal properly lies from the May 2, 2017 judgment
of sentence. Commonwealth v. Shamberger, 788 A.2d 408, 410 (Pa.
Super. 2001). We have corrected the caption accordingly.
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then arrest those dealers. Id.          Mr. Leonard’s work as a CI directly led to

Appellant’s arrest. Id. at 45.

        On March 7, 2016, Appellant and Mr. Leonard were both seated in a

courtroom in the Blair County Courthouse in Hollidaysburg, Pennsylvania.

Appellant was in the courtroom as a result of Mr. Leonard’s work as a CI, and

Mr. Leonard was there as a defendant on a separate drug-related matter.

Appellant was seated behind Mr. Leonard. Mr. Leonard claimed that when

Appellant sat down behind him, she made threatening comments to him. Id.

at 26. Mr. Leonard testified that Appellant called him a snitch and blamed him

for her arrest. She told him that she knew where he lived, would burn his

house down, and intended to hurt him. Id. Mr. Leonard also testified that

after Appellant threatened him in the courtroom, she aggressively followed

him in her car back to Altoona. Id. at 31. Mr. Leonard stated that during this

pursuit, he applied the brakes suddenly to get behind Appellant’s car, which

enabled him to get Appellant’s license plate number and call the police. Id.

        On August 19, 2016, the Commonwealth charged Appellant with making

terroristic threats, retaliation against a witness or victim, and harassment. 2

Following a jury trial, Appellant was found guilty of retaliation against a

witness or victim and not guilty of making terroristic threats.3 Verdict, 2/9/17.


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2   18 Pa.C.S. §§ 2706(a)(1), 4953(a), and 2709(a)(2) respectively.

3 The disposition of the summary offense of harassment is unclear from the
record.

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On May 2, 2017, the trial court sentenced Appellant to a term of one to twenty-

three months of incarceration on the retaliation conviction. Appellant filed a

timely post-sentence motion, which was denied on May 22, 2017, and on June

8, 2017, Appellant filed a timely notice of appeal. On July 19, 2017, the trial

court directed Appellant to file and serve upon the court a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

filed a timely Pa.R.A.P. 1925(b) statement on July 28, 2017. The trial court

did not draft an opinion but rather provided a statement asserting that it was

relying upon the record. Pa.R.A.P. 1925(a) Notice, 10/31/17.

      On appeal, Appellant raises four issues for this Court’s consideration:

      I. Whether the trial court erred in denying [Appellant’s] dismissal
      motion that the verdict was not supported by the weight of the
      evidence submitted at trial. Commonwealth v. Ostrosky, 909 A.2d
      1224 (Pa. 2006).

      II. Whether the trial court erred in finding sufficient evidence to
      support the verdict because the [C]omm[on]wealth’s evidence
      consisted of one to three adverse verbal statements followed by
      benign driving conduct that fails to get to the severity contained
      in Commonwealth v. Ostrosky, 909 A.2d 1224 (Pa. 2006).

      III. Whether the trial court erred when the court denied a post
      sentence motion for a new trial where [Appellant] alleged a Brady
      v. Maryland violation because the investigating officer failed to
      recover easily available and material in-court video of the alleged
      incident. Brady, 373 U.S. 83 (1963).

      IV. Whether the trial court erred when it denied [Appellant’s]
      motion for a new trial alleging the verdict should also be set aside
      because Leonard was a “confidential informant” not a “witness”
      according to the plain language of the statute leading to the
      conclusion that, by definition, there cannot be a sufficient or
      weighty evidence to sustain the verdict.


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Appellant’s Brief at 7.4

        Appellant first challenges the weight of the evidence and claims that she

is entitled to a new trial. We have held that “[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.” Commonwealth v.

Rayner, 153 A.3d 1049, 1054 (Pa. Super. 2016) (quoting Commonwealth

v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).             Our Supreme Court has

described the standard applied to a weight-of-the-evidence claim as follows:

        The decision to grant or deny a motion for a new trial based upon
        a claim that the verdict is against the weight of the evidence is
        within the sound discretion of the trial court. Thus, “the function
        of an appellate court on appeal is to review the trial court’s
        exercise of discretion based upon a review of the record, rather
        than to consider de novo the underlying question of the weight of
        the evidence.” An appellate court may not overturn the trial
        court’s decision unless the trial court “palpably abused its
        discretion in ruling on the weight claim.” Further, in reviewing a
        challenge to the weight of the evidence, a verdict will be
        overturned only if it is “so contrary to the evidence as to shock
        one’s sense of justice.”

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations

omitted).    A trial court’s determination that a verdict was not against the

weight of the evidence is “[o]ne of the least assailable reasons” for denying a

new trial. Commonwealth v. Colon-Plaza, 136 A.3d 521, 529 (Pa. Super.

2016) (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). A

verdict is against the weight of the evidence where “certain facts are so clearly


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4   For purposes of our discussion we have renumbered Appellant’s issues.

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of greater weight that to ignore them or to give them equal weight with all the

facts is to deny justice.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.

Super. 2003) (quoting Widmer, 744 A.2d at 751–752)). “[W]e do not reach

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

of the evidence. . . . Instead, this Court determines whether the trial court

abused its discretion in reaching whatever decision it made on the

motion[.]” Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super.

2015) (citation omitted) (emphasis added).

      A challenge to the weight of the evidence must first be raised at the trial

level “(1) orally, on the record, at any time before sentencing; (2) by written

motion at any time before sentencing; or (3) in a post-sentence motion.”

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017). Although

Appellant’s weight claim lacked specificity, we are satisfied that she preserved

her challenge by: 1) raising the issue in a post-trial motion filed on April 26,

2017; 2) discussing the weight of the evidence at the sentencing hearing on

May 2, 2017 (N.T., 5/2/17, at 4); and 3) challenging the weight of the

evidence in her post-sentence motion filed on May 5, 2017.

      As noted above, the trial court did not file an opinion in this matter.

Moreover, the trial court’s order denying Appellant’s post-sentence motion

challenging, inter alia, the weight of the evidence, provides only that:

“Pursuant to Pennsylvania Rule of Criminal Procedure 720, [Appellant’s]




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requests are denied.” Order, 5/22/17. Accordingly, we are without the trial

court’s rationale.

      Because we are reviewing a decision based solely on the trial court’s

discretion,   Ferguson, 107 A.3d at 213, “[our] review requires an explicit

trial court determination on the weight of the evidence[.]” Commonwealth

v. Ragan, 653 A.2d 1286, 1288 (Pa. Super. 1995).         Accordingly, we are

constrained to remand and order the trial court to draft an opinion detailing

its decision and findings on Appellant’s challenge to the weight of the

evidence. Id. The trial court shall file its opinion within thirty days

from the date this Memorandum is filed. Rather than issue a piecemeal

decision, we decline to address Appellant’s remaining claims at this time, and

we shall address all of the issues following remand.

      Case remanded with instructions. Panel jurisdiction retained.




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