J-S56012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MIGUEL ANGEL LANDRAU-MELENDEZ,

                            Appellant                 No. 2035 MDA 2015


         Appeal from the Judgment of Sentence Entered June 17, 2015
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000286-2014


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 16, 2016

        Appellant, Miguel Angel Landrau-Melendez, appeals from the judgment

of sentence of 21 months’ to 6 years’ incarceration, imposed on June 17,

2015, after a jury convicted him of aggravated harassment by a prisoner, 18

Pa.C.S. § 2703.1. We affirm.

        Appellant’s conviction stemmed from evidence that he threw a cup of

urine on another inmate at the Lebanon County Prison.             On appeal,

Appellant challenges the sufficiency and weight of the evidence to sustain his

conviction. We have examined the certified record, the briefs of the parties,

and the applicable law.         We have also reviewed the October 21, 2015

opinion, drafted by the Honorable Bradford H. Charles of the Lebanon

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S56012-16



County Court of Common Pleas, which explains Judge Charles’ rationale for

denying Appellant’s post-sentence motion in which Appellant raised his

sufficiency and weight-of-the-evidence claims.   We conclude that Judge

Charles’ well-reasoned opinion accurately disposes of those two issues.

Accordingly, we adopt Judge Charles’ October 21, 2015 decision as our own

and affirm Appellant’s judgment of sentence for the reasons set forth

therein.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016




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                                                                    Circulated 09/01/2016 12:58 PM




           IN THE COURT OF COMMON PLEAS LEBANON             COUNTY
                            PENNSYLVANIA

                             CRIMINAL DIVISION

COMMONWEAL TH OF
PENNSYLVANIA

      v.
MIGUEL LANDRAU~MELENDEZ
                                                                                ...,_   .:".:·   .::

                                                                               f--··

APPEARANCES

Megan Ryland-Tanner, Esquire          For Commonwealth      of Pennsylvania
DISTRICT ATTORNEY'S
OFFICE

Elizabeth Judd, Esquire               For Miguel Landrau-Melendez
PUBLIC DEFENDER'S OFFICE


OPINION BY CHARLES1 J., October 21, 2015

      While incarcerated    in the Lebanon    County   Prison, the Defendant

threw a cup of urine at and onto another inmate.    He then sent a note to the

victim stating:   "Don't press charges.   Please don't be a bitch.     Don't f***

with my time."    Based upon the above evidence and more, a jury found the

Defendant guilty of Aggravated       Harassment    by a Prisoner.       After we

sentenced the Defendant to 21 months to 6 years in a state correctional

facility, the Defendant challenged his conviction by alleging that the jury's

verdict was against the weight of evidence and was not based on. sufficient

evidence.   We write this Opinion to affirm our judgment of sentence.
L       FACTS

        On March 16, 2014,       Marq Garloff (hereafter "GARLOFFll)     was an

inmate housed in Cell Block 3 of the Lebanon County Correctional Facility

located in the City of Lebanon.     (N. T. 5). During the morning hours of March

16, 2014, GARLOFF was lying on his bed which was the bottom of the bunk

bed.    (N.T. 6). He heard the doors to the cells opening.     He then observed

Miguel Landrau-Melendez (hereafter "DEFENDANT") standing in front of his

cell gates.     (N.T. 6).     DEFENDANT   was holding a white Styrofoam cup.

DEFENDANT        threw the contents of the white Styrofoam cup at GARLOFF.

(N.T.   10).

        GARLOFF testified that the contents of the cup contained urine.       He

stated that when DEFENDANT          threw the urine at him, it landed on him, his

towel, his bed, his lip and his hair.     (N.T.   6).   When questioned how he

knew the liquid was urine, GARLOFF testified that some of the urine landed

on his lip and he was able to taste it. In addition, when it landed on his

blanket, it turned the blanket yellow at the wet spots. (N.T. 6).      GARLOFF

stated that his towel was hanging on top of the bottom front of his bunk.

        At some point either the day of or the day after the incident with the

urine, GARLOFF received a note from DEFENDANT.              (N.T. 5). GARLOFF

stated that the note had been delivered to him by someone             other than

DEFENDANT.        (N.T. 9).

        GARLOFF testified      that when someone is in prison and is labeled a

snitch, it becomes problematic for the inmate to function through the prison



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system.         In addition there is always the potential that the inmate could be

physically harmed.              (N.T.     24).     Because          of the above,       and because

GARLOFF          was being threatened by DEFENDANT                         and half the block and

because of fear and intimidation, GARLOFF wrote a handwritten statement

stating    that he did           not want to press           charges       against DEFENDANT.

GARLOFF provided the handwritten statement to DEFENDANT.                                      (N. T. 16-

18).      DEFENDANT            specifically told GARLOFF to write that the urine did

not get on him and that he would not be pressing charges.                             (N.T.   19).

        GARLOFF             did testify   under subpoena.             However,        throughout the

investigation, he cooperated               with the Pennsylvania           State Police and never

once asked that the charges be withdrawn.                     (N.T. 25). When introduced                  as

evidence, GARLOFF was able to identify the towel as the one he had used

for many months.              He also indicated that his towel had a rip in it and had

some drawings on it. (N. T. 7 "8; Exh. 4 ).

        Bradley         Starry (hereafter "STARRY")            also testified at trial.              He is

employed         as     a    supervisor     of the        inmates     at    the    Lebanon        County

Correctional Facility.            On March 161 20141 STARRY was assigned                             to the

block three control station.              (N.T. 25).

        At some point in time, STARRY was approached                              by an inmate who

told him about urine being thrown. (N.T. 25). STARRY entered GARLOFF'S

cell and questioned           him about the liquid on GARLOFF's                   prison issue.       (N.T.

26, 30). At the time GARLOFF and another inmate were present inside the

cell.   (N.T.    30).


                                                   ...,
                                                   .)
        After questioning GARLOFF, STARRY left the cell block and went to

central control to view the video surveillance tape.                        (N.T. 26).        STARRY

testified that each cell block has their own video surveillance.                             The video

equipment is set up so that if it is not downloaded and copied, it overrides

itself several days later.              (N.T. 30-31).        STARRY stated that he did not

burn a copy of the video footage                    and ultimately the video footage was

overridden and no longer existed.                 (N. T. 31).

        STARRY testified that when he viewed the video, he started from a

point where the inmate                 approached        him. and reported        the incident and

backtracked from              there.       In so doing, STARRY was able to observe

DEFENDANT             in front of GARLOFF's cell.            (N.T. 32).     Upon observing this,

STARRY returned to GARLOFF's                     cell and collected       various items including

GARLOFF's            prison uniform, sheets, towel, and anything else that appeared

tobewet.         (N.T.32).

        STARRY then pulled DEFENDANT                        out of the block at which time he

said    to     DEFENDANT            that    he   already      knows       why    he    is    out   here.

DEFENDANT's             response was "you have my DNA on file, you're                          going to

have to send it to the lab to verify It."                   (N. T. 34).     STARRY did not tell

DEFENDANT about the liquid substance or any of the observations he had

made.        (N.T.    34).

            Captain Michael Ott who is employed as Captain of Security at the

Lebanon        County        Correctional   Facility also testified        at trial.        Captain Ott

testified     that as part of his investigation,             he learned         that GARLOFF        had



                                                     4
been provided with a note that said "Don't                     press charges.       Please     don't   be

a bitch.     Don't    f          with my time.    Please, I'm trying to go home.                  Thank

you, Miguel."        (Exh. 5; N.T. 38).      When Captain Ott spoke with DEFENDANT,

DEFENDANT            acknowledged         that he wrote the note.            (N.T. 38).

       During trial,        a Stipulation    of Facts was entered             by counsel.        Among

other things, this stipulation            indicated       the following:

(1)    Forensic        scientists     were able to detect no urine on the red prison

       uniform; however urine was present on the white towel.                              The sheets

       were not analyzed.

(2)    All items          were collected      by Lebanon          County      Correctional       Facility

       Officers on March 16, 2014. -

(3)    All items were turned over to the Pennsylvania                         State Police      on April

       6, 2014 and Troopers from the Pennsylvania                          State Police    transported

       the red uniform worn by GARLOFF to the Pennsylvania                                 State Police

       Crimes        Laboratory      on April 30, 2014.

(4)   On August            28,    2014,   Pennsylvania         State Troopers       transported        the

       linens to the Pennsylvania State Police Crimes Laboratory                            for testing.

      The linens          included    the white sheets and the towel.              (Exh.     1; N.T.   39-

      42).


II.   DISCUSSION

      A.        WEIGHT AND SUFFICIENCY                       OF EVIDENCE

      Because          DEFENDANT's            sufficiency        and   weight      of the      evidence

arguments      are related,         we will address them together.              That being said, we


                                                      5
recognize     that there is a distinction between challenges                to sufficiency and

lack of weight of evidence.           That distinction was laid out in Commonwealth

v. Whiteman,        485 A.2d 459 (Pa.Super.              1984):

         A motion for new trial on grounds that the verdict is contrary to
         the weight of the evidence concedes that there is sufficient
         evidence to sustain the verdict but contends, nevertheless, that
         the verdict is against the weight of the evidence.        Whether a
         new trial should be granted on the grounds that the verdict is
         against the weight of the evidence is addressed to the sound
         discretion of the trial judge .... The test is not whether the court
         would have decided the case in the same way but whether the
         verdict is so contrary to the evidence as to make the award of a
         new trial imperative      so that right may be given another
         opportunity to prevail.

Id. at 462, citing Commonwealth                  v. Taylor, 471 A.2d 1228, 1229-1230

(Pa.Super.      1984).        If there   is insufficient      evidence to support      a jury's

verdict, the double jeopardy clause of the Fifth Amendment                       to the United

States Constitution precludes             retrial.       See Commonwealth        v. Whiteman,

supra,    (citing   Hudson       v.   Louisiana,         450 U.S. 40, 67 L.Ed.2d      30 (S.Ct.

1981)).     On the other hand, "a new trial is a proper remedy when the verdict

is found to be against the weight of the evidence."                    Id. at 461.

         When reviewing        a sufficiency of the evidence .claim, we apply a two-

step inquiry.        First,   we consider        all of the evidence         in the light most

favorable to the Commonwealth, accepting                     as true all evidence upon which

the fact-finder could have based the verdict.                      Commonwealth      v. Walker,

874 A.2d 667, 677 (Pa.Super. 2005).                      Second,    we must ask whether     that

evidence,    along with all reasonable           inferences        to be drawn therefrom, was




                                                     6
sufficient to prove guilt beyond a reasonable                     doubt.       Commonwealth           v.

Azim, 459 A.2d 1244, 1246 (Pa.Super. 1983).

         In passing    upon the credibility of witnesses                  and the· weight         to be

afforded the evidence produced, the jury is at liberty to believe all, part, or

none of the evidence.            Commonwealth           v. Price, 610 A.2d 488 (Pa.Super.

1992).     We are not to engage in post-verdict credibility discussions,                         nor are

we permitted to substitute our opinion regarding                       the facts for that of the

jury.    Commonwealth            v. Brown, 486 A.2d 441 (Pa.Super.                      1984).    If the

fact-finder    could have reasonably           determined       from the evidence that all of

the necessary        elements     of the crime were established,               then that evidence

will    be deemed       sufficient       to support     the    verdict.        Commonwealth           v,

Hopkins, 747 A.2d 910, 913-14 (Pa.Super.                      2000).

         The standard to be applied when assessing                     a challenge to the weight

of      evidence      imposes        a     "heavy       burden"         upon      the      defendant.

Commonwealth           v. Staton, 1998 WL 1297080 (C.P. Philadelphia                         1998).   A

jury's verdict will be overturned only when it is "so contrary to the evidence

as to shock one's sense of justice."             Commonwealth             v.   Schwartz, 615 A.2d

350, 361 (Pa.Super.        1992).        This standard        has been described           as follows:

"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 breath,

temporarily,       and causes     him to almost fall from the bench                 then it is truly

shocking      to the judicial     conscience."          Commonwealth            v. Davidson, 860

A.2d    575, 581    (Pa.Super.     2004) (citations       om)tted).


                                                    7
       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. Simmons, 662 A.2d           621,

630 (Pa. 1995).          The function of the fact finder is to pass on the credibility

of witnesses and determine the weight to be accorded                       to a particular piece

of evidence.       Id.

       In this case, the Commonwealth                established the following          inculpatory

information:

(1)    The      video      surveillance      tape      observed      by      STARRY        showed

       DEFENDANT            standing in front of GARLOFF's             cell block prior to the

       incident.

(2)    GARLOFF identified DEFENDANT                    as the person who threw the cup of

       urine on him.

(3)    As indicated         by the Stipulation of facts,           GARLOFF's        towel tested

       positive for urine.

(4)    DEFENDANT            threatened      and intimidated GARLOFF                into writing a

       statement         that the urine did not get on him.                What purpose would

       DEFENDANT            have to threaten GARLOFF and have GARLOFF write

       such     a statement         if DEFENDANT         was      not even     involved     in this

       incident?

(4)    DEFENDANT             acknowledged        to     Captain      Ott    that   he     provided

       GARLOFF           with a note that read "Don't press charges.                Please don't

       be a bitch.        Don't f        with my time.     Please,    I'm trying to go home.


                                                 8
      Thank you, Miguel."     Once again, why would DEFENDANT       have even

      written this note to GARLOFF if he was innocent of any wrongdoing?

   Based on the above information       and more, we believe     that the jury

possessed    more than enough evidence     to find DEFENDANT      guilty of the

crimes charged.     Moreover,   we cannot say that the jury's verdict was so

"shocking"   as to be against the weight of evidence.   Accordingly, the Post-

Sentence Motions filed by DEFENDANT        based upon weight and sufficiency

of evidence will be denied.




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