J-S59009-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
           v.                           :
                                        :
GREGORY McNATT,                         :
                                        :
                       Appellant        :     No. 2509 EDA 2013


       Appeal from the Judgment of Sentence Entered May 24, 2013,
          In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0011619-2012.


BEFORE: SHOGAN, J., LAZARUS. J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                       FILED OCTOBER 28, 2014

     Appellant, Gregory McNatt, appeals from the judgment of sentence

entered following his convictions of five counts of robbery, criminal

conspiracy, two counts of violating the uniform firearms act (“VUFA”), and

possessing an instrument of crime (“PIC”). We affirm.

     The trial court summarized the facts of this case as follows:

            On July 21, 2012 at 2:30 A.M., all friends, Sean Korney,
     Tom Reardon, Mike McEvilly, Will Viskovich and Nicole Mullen,
     were standing outside a house located at 2008 North 18 th Street
     in Philadelphia waiting for a friend to come let them in. Notes of
     Testimony (“NT”), Trial, 2/22/13 at 11:15-12:10. A red or
     maroon SUV driven by Appellant stopped in front of where they
     were standing. Id. at 12:16-17. Two other individuals were in
     the car along with Appellant, one in the front passenger seat and
     the other in the back seat. Id. at 41:1-7.



______________________________
*Retired Senior Judge assigned to the Superior Court.
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            Appellant exited the vehicle and approached the friends
     with a firearm in his hand. Id. at 37:15-9. Appellant pointed
     the firearm at Korney’s chest, racked it and said, “give me
     everything you got.” Id. at 12:16-19. Korney gave Appellant
     some change and cigarettes. Id. at 12:24-5. Appellant then
     moved down the line to Reardon, put the firearm against his
     chest, and told him, “you better give me everything you have.”
     Id. at 39:7-19. Appellant reached into Reardon’s pockets and
     took his iPhone. Id. at 40:1-4. Appellant then moved down the
     line, pointed the firearm at Mullen and Viskovich and demanded
     they give him everything they had. Id. at 40:7-9. Appellant
     then took McEvilly’s cell phone and Mullen’s purse. Mullen’s
     purse contained approximately $240 and a bus ticket to New
     York. NT, 2/25/13 7:12-7. Appellant then jumped back into the
     driver seat of the SUV and sped away with his two associates.
     NT, Trial, 2/22/13 at 40:21-25.

           All four of the witnesses who testified at trial were
     consistent in their testimony regarding the firearm.         Each
     described the weapon as being silver in color. Id. at 15:7-9,
     39:20-1; NT, 2/25/13, 19:9-11, 42:24-43:3. Korney stated that
     Appellant “cocked” the weapon and that the weapon was
     “obviously loaded ... because he racked it.” NT, Trial, 2/22/13 at
     12:22, 18:18-21.

            After Appellant left the scene, the police were called and
     arrived within minutes. Id. at 41:16-18. Police then drove the
     victims to 12th and Lehigh where Appellant and his cohorts had
     been pulled over in a maroon SUV. Id. at 42:7-21. The SUV
     and Appellant were identified at that location by the victims. Id.
     at 42:13-21. Recovered from between the center console and
     the driver seat was a ski mask and a brown gun holster. NT,
     2/25/13 at 75:12-7. Also recovered from the center cup holder
     of the vehicle were three black cell phones: one iPhone, one T-
     Mobile, and one AT&T. Id. at 82:14-8. The cell phones were
     identified as the cell phones previously stolen. Id. at 83: 11-23.
     Officers also recovered $5 U.S. currency from Appellant, $140
     from the front passenger and an additional $27 from the rear
     passenger. Id. at 87:22-92:25.

           Appellant testified. He stated that on the night of the
     incident his friend Khalil Johnson called and asked him for a ride


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     home from 13th and Cambria. Id. at 191: 1-192: 25. Appellant
     agreed to give Khalil a ride, but first he stopped for gas. Id. at
     193:14-5. While at the gas station Appellant was approached by
     a man selling phones. Id. at 195;9-15. Appellant claimed that
     he purchased two phones from this man, an iPhone and a T-
     Mobile phone for $25. Id. at 196:8-15. Appellant then stated
     that he left the gas station and went to 13 th and Cambria where
     he picked up Khalil and another man, Shakeem. Id. at 198:3-
     13. Khalil first stated that he wanted to go to 23 rd and Diamond,
     but then Shakee[m] stated that he wanted to go to 11 th and
     Cambria. Id. at 199:23-200:4. Appellant made a U-Turn to go
     back to Cambria Street and was pulled over by the police. Id. at
     200:3:4.

           Appellant denied robbing anyone that night and denied
     that the gun holster and mask were his. Id. at 203:21-204:11.
     Appellant stated that it was not a real gun holster or a real
     mask; he stated it was part of a Halloween costume his 10 year-
     old cousin had worn. Id. at 204:5-10.

            On February 22, 2013, jury selection commenced. A panel
     of sixty venire persons [was] brought into the courtroom for voir
     dire. Defense counsel used a peremptory challenge to remove
     venireperson number eleven, who was Caucasian. NT, Voir Dire,
     2/22/11 at 58. The district attorney objected, stating that she
     believed the defense was intentionally excluding white
     venirepersons from the panel in violation of Batson v. Kentucky,
     476 U.S. 79 (1986).       Id.  The Court determined that the
     Commonwealth established a prima facie case of racial
     discrimination: the defense had been presented with two African
     Americans and accepted both, but had been presented with
     three Caucasians and had rejected all three. Id. at 58:8-16.
     The Court instructed the defense to state on the record their
     reasons for their strikes. Id. Defense did so and the Court
     permitted the peremptory challenge to stand, but cautioned
     counsel that a pattern had emerged. Id. at 62:19-25.

           Defense counsel then used a peremptory challenge to
     remove venireperson twenty-four, a Caucasian, and the
     Commonwealth again objected under Batson v. Kentucky. Id. at
     96-97:9.     The Court determined that there was still a
     discriminatory pattern; at that point in the process the defendant


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      had chosen four of the five African Americans but had st[r]uck
      four of the five Caucasians. Id. 97:3-9. When asked to explain
      his reasoning for striking number twenty-four, defense counsel
      stated that his client “had a feeling” and “didn’t want her.” Id.
      at 97:19-90. The Court found this reasoning to be pretextual
      and invalid and sat juror twenty-four.1 Id. at 98, 105:3-4.
            1
              Juror twenty-four was later struck for hardship
            because she revealed she had work obligations. NT,
            Voir Dire, 2/22/13 at 99:546.

             Defense counsel then used a peremptory challenge to
      remove venireperson forty, also a Caucasian. Id. at 142:3-20.
      The Commonwealth objected pursuant to Batson. Id. When
      asked his reason, defense counsel stated that because number
      forty was a reporter for the Inquirer he could possibly come
      across stories that involve Appellant or other people involved in
      the crime. Id. Again, the court found this explanation to be
      pretextual and thus invalid, and sat juror number forty. Id. At
      that point, the jury of twelve was complete and the Court moved
      on to alternates. Id. Defense counsel then used a peremptory
      challenge to strike Caucasian juror number forty-three. Id. at
      152:5-22. When asked why he struck forty-three, defense
      counsel stated only that Appellant asked him to strike the juror
      because “he didn’t get a good vibe from her.” Id. Noting the
      stark disparity between selections of African Americans and
      Caucasians, the court determined the ‘bad vibe’ reasoning again
      to be incredible. Id. Juror number forty three was sat as the
      first alternate. At this point, the jury was comprised of seven
      African American jurors and six Caucasian jurors.

Trial Court Opinion, 3/28/14, at 1-3.

      On February 26, 2013, at the conclusion of a jury trial, Appellant was

convicted of the crimes stated above.         On May 24, 2013, the trial court

sentenced Appellant to serve an aggregate term of incarceration of seven to

sixteen years, to be followed by a term of probation of four years. Appellant




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filed a post-sentence motion on June 3, 2013, which the trial court denied on

August 29, 2013. This appeal followed.

      Appellant presents the following issues for our review:

      I. Did the trial court abuse its discretion when it sustained the
      Commonwealth’s       objections    to    Appellant’s  peremptory
      challenges during jury selection?

      II. Was the verdict of guilty on the charge of Criminal Conspiracy
      against the weight of the evidence or based on insufficient
      evidence where there was no proof of an agreement between
      Appellant and another person or persons to commit a crime?

      III. Were the verdicts of guilty on the charges of violating
      Sections 6106 and 6108 of the Uniform Firearms Act against the
      weight of the evidence or based on insufficient evidence where
      there was no proof that the object possessed was capable of
      firing a shot?

Appellant’s Brief at 4.

      In his first issue, Appellant argues the trial court abused its discretion

in   sustaining   the     Commonwealth’s    objection    to   Appellant’s   use   of

peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79

(1986). Appellant claims that the Commonwealth did not present a prima

facie showing of racial discrimination by Appellant.               Appellant further

contends that, had the Commonwealth presented the prima facie showing of

discrimination and the burden shifted to Appellant to justify his use of

peremptory challenges against Caucasian potential jurors, he succeeded in

providing     race-neutral   explanations   for   the   use   of   the   peremptory

challenges.


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        Batson and its progeny prohibit the use of peremptory challenges

based on race in state courts as a violation of rights to Equal Protection

under the Fourteenth Amendment of the United States Constitution.

Batson, 476 U.S. 86-87; Commonwealth v. Harris, 817 A.2d 1033, 1042

(Pa. 2002).    Batson at first required a showing that the defendant was a

member of the racial group that was being excluded by the prosecution’s use

of peremptory challenges.       Harris, 817 A.2d at 1042.       That changed,

however, with the case of Powers v. Ohio, 499 U.S. 400 (1991).              In

Powers, the United States Supreme Court removed that requirement,

indicating that the aim of Batson was to ensure equal protection of the

rights of all potential jurors regardless of their race. Id. at 415-416. The

ruling in Batson also initially was only applied to racially-based jury

selection by the prosecution, but was extended by the United States

Supreme Court in Georgia v. McCollum, 505 U.S. 42 (1992), when it held

that criminal defendants were likewise prohibited from racially discriminatory

use of their peremptory challenges in jury selection.     Commonwealth v.

Garrett, 689 A.2d 912, 915 (Pa. Super. 1997).

        In deciding a Batson issue, we employ the following three-pronged

test:

              First, the party objecting to the peremptory challenge must
        make a prima facie showing that the proponent of the
        peremptory challenge seeks to exclude a prospective juror based
        on race. Second, if a prima facie showing has been made, the


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      burden shifts to the proponent to articulate a race-neutral
      explanation for excluding the juror in question. Third, if the
      proponent demonstrates a race-neutral explanation, then the
      trial court must determine whether the objecting party has
      proved that the peremptory challenge is based on purposeful
      racial discrimination.

Id. at 916 (citation omitted).    Our scope and standard of review for a

Batson claim is limited to whether the trial court’s finding of “discriminatory

intent” was “clearly erroneous,” when looking at jury selection on the whole.

Harris, 817 A.2d at 1043.

      The trial court’s finding as to discriminatory intent must of
      necessity be accorded great deference on appeal. This is so
      because the ultimate question of discriminatory intent involves
      an assessment of credibility.

      In the typical peremptory challenge inquiry, the decisive
      question will be whether counsel’s race-neutral explanation for a
      peremptory challenge should be believed. There will seldom be
      much evidence bearing on that issue, and the best evidence
      often will be the demeanor of the attorney who exercises the
      challenge. As with the state of mind of a juror, evaluation of the
      [attorney’s] state of mind based on demeanor and credibility lies
      “peculiarly within a trial judge’s province.”

Id. (citation omitted).

      We are further mindful that, “[t]he test for determining whether a

prospective juror should be disqualified is whether he is willing and able to

eliminate the influence of any scruples and render a verdict according to the

evidence.” Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super. 2006).

“This determination is to be made by the trial judge based upon the juror’s

awareness and demeanor, and we will not reverse a judge’s ruling on a


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challenge   for   cause    absent    a     palpable   abuse   of   discretion.”

Commonwealth v. Howard, 471 A.2d 1239, 1242 (Pa. Super. 1984)

(quoting Commonwealth v. Short, 420 A.2d 694, 699 (Pa. Super. 1980)).

      We have reviewed the briefs of the parties, the relevant law, the

record certified on appeal, and the opinion of the Honorable Michael E. Erdos

dated March 28, 2014. It is our determination that the trial court’s opinion

accurately addressed the issue presented and properly concluded that the

Commonwealth’s Batson motion challenging Appellant’s use of peremptory

strikes to remove potential jurors was properly granted.      See Trial Court

Opinion, 3/28/14, at 3-7. Thus, we conclude that this claim lacks merit and

adopt the trial court’s analysis as our own.1

      In his second and third issues, Appellant purports to argue that the

verdict was against the weight of the evidence and that there was

insufficient evidence to support his convictions of conspiracy and VUFA.

However, claims challenging the weight of the evidence and sufficiency of

the evidence are clearly distinct.   See Commonwealth v. Widmer, 744

A.2d 745 (Pa. 2000) (discussing the distinctions between a claim challenging

the sufficiency of the evidence and a claim that the verdict is against the

weight of the evidence). “A true weight of the evidence challenge concedes

that sufficient evidence exists to sustain the verdict but questions which


1
  The parties are directed to attach a copy of the trial court opinion in the
event of further proceedings in this matter.

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evidence is to be believed.” Commonwealth v. Charlton, 902 A.2d 554,

561 (Pa. Super. 2006) (quoting Commonwealth v. Galindes, 786 A.2d

1004, 1013 (Pa. Super. 2001)).         Appellant attempts to address both

challenges to weight of the evidence and sufficiency of the evidence in

intermingled argument sections in his brief to this Court. Appellant’s Brief at

22-25; 26-32.

      However, to the extent Appellant endeavors to present typical

challenges to the sufficiency of the evidence, we observe that such claims

are waived due to Appellant’s failure to specifically challenge the sufficiency

of the evidence with regard to his conspiracy conviction and his VUFA

convictions in his statement filed pursuant to Pa.R.A.P. 1925(b). Our courts

have consistently ruled that, where a trial court directs a defendant to file a

concise statement pursuant to Pa.R.A.P. 1925(b), any issues not raised in

that statement shall be waived.     Commonwealth v. Bullock, 948 A.2d

818, 823 (Pa. Super. 2008) (citing Commonwealth v. Lord, 719 A.2d 306,

308 (Pa. 1998)).    See also Commonwealth v. Oliver, 946 A.2d 1111,

1115 (Pa. Super. 2008) (stating that Lord “requires a finding of waiver

whenever an appellant fails to raise an issue in a court-ordered Pa.R.A.P.

1925(b) statement”).     Indeed, in its Pa.R.A.P. 1925(a) opinion, the trial

court addressed Appellant’s issues strictly as challenges to the weight of the

evidence.     Therefore, we must conclude that any challenges to the




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sufficiency of the evidence with regard to his convictions of conspiracy and

VUFA are waived, and we will only review Appellant’s issues numbered two

and three as challenges to the weight of the evidence.

     We next address Appellant’s challenge to the weight of the evidence

supporting his conviction of conspiracy.    In Commonwealth v. Clay, 64

A.3d 1049 (Pa. 2013), our Supreme Court set forth the following standards

to be employed in addressing challenges to the weight of the evidence:

            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. Commonwealth v. Widmer, 560
     Pa. 308, 319, 744 A.2d 745, 751-52 (2000); Commonwealth
     v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A
     new trial should not be granted because of a mere conflict in the
     testimony or because the judge on the same facts would have
     arrived at a different conclusion. Widmer, 560 A.2d at 319-20,
     744 A.2d at 752. 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.’” Id. at 320,
     744 A.2d at 752 (citation omitted). 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.” Brown, 538 Pa. at 435, 648
     A.2d at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     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. Brown, 648 A.2d at 1189. Because the
           trial judge has had the opportunity to hear and see
           the evidence presented, an appellate court will give


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            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.         Commonwealth v.
            Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
            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.

      Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

             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:

            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. 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 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.

      Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
      S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
      (1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).



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      Our review of the record reflects that the trial court addressed each of

Appellant’s challenges to the weight of the evidence and determined that

they lack merit. Specifically, the trial court stated the following with regard

to Appellant’s challenge to the weight of the evidence supporting his

conviction of criminal conspiracy:

            The jury’s verdict of guilty on all of the charges presented
      here was not shocking. In fact, it would have been shocking had
      Appellant not been convicted of them. First, Appellant contends
      that the charge of conspiracy is against the weight of the
      evidence because there was no evidence of an agreement
      between the defendant and his cohorts. However, it has long
      been settled that the Commonwealth need not establish the
      existence of a conspiracy by direct proof of a formal agreement.
      Commonwealth v. Roux, 350 A.2d 867, 870 (Pa. 1976). This is
      because direct proof of an explicit agreement can seldom be
      supplied. Id. As a result, a conspiracy may be proven by
      circumstantial evidence alone. Id. Circumstances relevant to
      this inquiry include an association between the alleged
      conspirators, knowledge of the commission of the crime, and
      presence at the scene of the crime.             Commonwealth v.
      Anderson, 402 A.2d 546, 549 (Pa. Super. 1979).               These
      circumstances, when viewed together, may “furnish a web of
      evidence linking an accused to the alleged conspiracy beyond a
      reasonable doubt.” Id.

            Here, [Appellant] clearly had a close association with Khalil
      Johnson and Shakeem Martin. He admitted to being friends with
      them. NT, 2/25/13 at 209:9-10. Additionally, he admitted to
      hanging out at Johnson’s house and giving Johnson rides on
      previous occasions. Id. at 198:25-199:7. Both Johnson and
      Martin were present during the commission of the crime which
      occurred only a few feet from the vehicle. Both men were also
      in the vehicle when apprehended by the police. The three stolen
      phones were not found on Appellant’s person, but were sitting in
      the cup holder, directly between Appellant and Johnson.
      Moreover, while only $5 of the $240 stolen was recovered from
      the Appellant, $140 was recovered from Johnson and $27 was


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      recovered from Martin.        Taking all of this evidence into
      consideration, it is clear that the jury’s verdict of guilty on the
      charge of conspiracy does not shock the conscious.

Trial Court Opinion, 3/28/14, at 7-8.

      The jury, sitting as the finder of fact, was free to believe all, part, or

none of the evidence against Appellant, as was its right. The jury weighed

the evidence and concluded Appellant perpetrated the crime of criminal

conspiracy. This determination is not so contrary to the evidence so as to

shock one’s sense of justice. We decline Appellant’s invitation to assume the

role of factfinder and to reweigh the evidence.      Accordingly, we conclude

that the trial court did not abuse its discretion in determining Appellant’s

weight of the evidence claim, in this regard, lacked merit.

      In his final issue, Appellant argues that convictions of VUFA were

against the weight of the evidence. In reviewing this issue, we again employ

the standard of review set forth above.

      Our review of the record reflects that the trial court addressed

Appellant’s challenges to the weight of the evidence and determined that

they lacked merit.    Specifically, the trial court stated the following with

regard to Appellant’s challenge to the weight of the evidence in support of

his convictions of VUFA:

            Appellant also contends that the jury’s verdicts of guilty on
      the charges of carrying a firearm without a license and carrying
      a firearm in a public street were against the weight of the
      evidence because no weapon was recovered and [because] the


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         witnesses’ descriptions of the alleged firearm conflicted. It is
         well established that witness testimony constitutes evidence.
         Therefore presenting the physical firearm is not required for a
         guilty verdict on these charges. All four of the witnesses who
         testified at trial stated that Appellant had a firearm and all were
         consistent in their descriptions of the weapon.         Both Sean
         Korney and Thomas Reardon described the firearm as a “silver
         handgun.” NT, Trial, 2/22/13 at 15:7-9, 39:20-1. Will Viskovich
         stated it was a “handgun, silver on top.” NT, 2/25/13 at 42:24-
         43:3. Nicole stated that the gun was “black and it had like gray
         on the top of it or like silver.” NT, 2/25/13 at 19:9-11 The
         witnesses stated that Appellant “cocked” the weapon and that
         the weapon was “obviously loaded...because [Appellant] racked
         it.” NT, Trial, 2/22/13 at 12:22, 18:18-21. The jury, as the fact
         finder, was free to believe the substantial amount of testimony
         provided by these four witnesses on the existence of this silver
         handgun; thus, it is clear that the verdicts of guilty on both
         charges were reliable and far from shocking.

Trial Court Opinion, 3/28/14, at 8-9.

         Again, the jury, sitting as the finder of fact, was free to believe all,

part, or none of the evidence presented against Appellant, as was its right.

The jury weighed the evidence and concluded Appellant committed the two

crimes of VUFA. This determination is not so contrary to the evidence so as

to shock one’s sense of justice. Therefore, we decline Appellant’s invitation

to assume the role of factfinder and to reweigh the evidence presented at his

trial.    Accordingly, we conclude that the trial court did not abuse its

discretion in determining Appellant’s weight of the evidence claims lacked

merit.

         Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/28/2014




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