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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
JESSE ROBERT CALDARAZZO,                  :          No. 1076 MDA 2017
                                          :
                           Appellant      :


             Appeal from the Judgment of Sentence, June 7, 2017,
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0006765-2015


BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 28, 2018

        Jesse Robert Caldarazzo appeals the judgment of sentence in which the

Court of Common Pleas of York County sentenced him to serve a term of 9 to

18 months’ imprisonment for simple assault1 followed by an aggregate term

of 2 years’ probation for recklessly endangering another person and disorderly

conduct.2 After careful review, we affirm.

        The trial court set forth the following factual background and procedural

history:

                    On or about August 28, 2015, the victim,
              David Schlenoff, went to a bar. [A]ppellant and
              Charles Bull,[3] who was the co-defendant, also went

1   18 Pa.C.S.A. § 2701.

218 Pa.C.S.A. § 2705, and 18 Pa.C.S.A. § 5503, respectively.
3Charles Bull was convicted of the same crimes as appellant. A review of this
court’s docket indicates that Bull did not appeal his judgment of sentence.
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              to the same bar that night. While at the bar, Schlenoff
              talked to Sarah Caldarazzo,[Footnote 2] who was
              [a]ppellant’s sister and Bull’s girlfriend. Before the
              bar closed, Schlenoff, [a]ppellant, and Bull left the bar
              and went to the parking lot separately, and a
              commotion ensued. The parties disagreed on the
              particulars of the commotion.

                    [Footnote 2] Appellant[4] had previously
                    dated Sarah Caldarazzo for a short period
                    of time.

                     During the trial, numerous witnesses testified
              about the commotion. The first two witnesses were
              Robert Webber and Brent Westcoat, who were also
              Schlenoff’s friends.     Both Webber and Westcoat
              testified that as they were leaving, they noticed a
              commotion involving Schlenoff, [a]ppellant, and Bull.
              Webber saw [a]ppellant and Bull beating and
              especially kicking Schlenoff, who was on the ground
              in the fetal position. Westcoat similarly testified that
              there were a lot of downward punches from
              [a]ppellant and Bull against Schlenoff, but he was not
              sure if there was kicking, though [a]ppellant and Bull
              were standing while [a]ppellant[5] was on the ground.

                     Upon seeing the commotion, Westcoat and
              Webber ran up to them, and, then, [a]ppellant and
              Bull ran and got into a car, which was being driven by
              someone else. As a result of [a]ppellant and Bull’s
              actions, Schlenoff was barely moving. Webber stated
              that Schlenoff’s eyeball was busted and bloody, and
              that his hands were busted up. Westcoat testified that
              Schlenoff had blood all over his mouth and that his
              eye was swollen. They drove Schlenoff back to his
              parents’ home, and he was soon taken to the hospital.




4   The trial court mistakenly referred to Schlenoff as “appellant.”

5 Though the trial court states that appellant was on the ground, it appears
from the context that the trial court meant that Schlenoff, the victim, was on
the ground.


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                 Schlenoff testified that he remembered leaving
          the bar, but not what happened immediately
          afterwards. He remembered waking up on the ground
          and that he “could hardly see out of [his] eyes.” He
          stated that he “was concussed, and [he] was just in a
          daze, and [his] face was just swelled up, and there
          was blood coming out of [his] nose and [his] eyes.
          . . .” Before going to the hospital that night, his sister
          took pictures of his injuries.

                Throughout his testimony, Schlenoff often
          stated that he could not remember things. After the
          Commonwealth asked him about his lack of memory,
          Schlenoff explained that he had “multiple concussions
          and brain injuries from that night” and that was
          impacting his memory.

                 Schlenoff further described that he had to have
          facial reconstruction as a result of a shattered orbital
          bone. Also, he had a pinched nerve and he required
          a surgery for his shoulder. He required three months
          of physical therapy and injections as well.

                Because of that night, Schlenoff suffers from
          short and long term memory problems, double vision
          and sensitivity in the eye that was injured. He also
          had to quit college due to his injuries.

                 Later, [a]ppellant’s sister, Sarah Caldarazzo,
          testified. Sarah Caldarazzo testified that she went to
          the same bar with [a]ppellant and Bull, where she
          spoke with Schlenoff several times. She testified that
          Schlenoff was rude to her, tried to grab her and that
          Westcoat said rude things to the three of them as well.

                Sarah Caldarazzo testified that she could hear
          Bull, Westcoat and two other people coming towards
          them as they were walking to their car. She said Bull
          fought Schlenoff and that [a]ppellant fought one of
          the other men that had come up to their car with
          Schlenoff. She also testified that Schlenoff had fallen
          on top of Bull on the ground and held him by the
          shoulders and that Schlenoff would not get off of [sic]



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            Bull. She testified that Bull punched Schlenoff while
            Schlenoff was on top of Bull.

                  Jabin Mahone also testified on behalf of the
            defendants. Mahone testified that he knew Bull for
            twelve or fifteen years and knew [a]ppellant briefly.
            Mahone’s testimony conflicted with Sarah Caldarazzo
            on the number of people involved in the fight, saying
            that he saw [a]ppellant, Bull, Webber, Westcoat and
            Schlenoff arguing. He says that the first fight was
            between [Schlenoff] and [Bull] and then Webber and
            Westcoat became involved.

                  During the closing, the Defense Counsel argued
            the inconsistencies in the testimony to the jury. The
            Commonwealth addressed these inconsistencies
            during closing argument and pointed out . . . the
            Defense witnesses’ inconsistencies as well.

Trial court opinion, 10/5/17 at 2-6 (additional footnotes omitted).

      The jury found appellant guilty of the aforementioned crimes. The trial

court sentenced appellant to a term of 9 to 18 months’ imprisonment followed

by 2 years of probation.

      Appellant filed a post-sentence motion in which he, in part, sought a

new trial because the verdict was against the weight of the evidence.        On

June 30, 2017, the trial court denied the motion with respect to the request

for a new trial based on the weight of the evidence. On July 5, 2017, appellant

filed a notice of appeal. On July 10, 2017, the trial court ordered appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). After he received an extension, appellant complied with

the order on September 5, 2017. The trial court issued its opinion pursuant

to Pa.R.A.P. 1925(a) on October 5, 2017.


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      Appellant raises the following issue for this court’s review: “The guilty

verdict was against the weight of the evidence because it was based off of [sic]

inconsistent testimony from witnesses who had a motive to lie and who were

not credible.” (Appellant’s brief at 4.)

                  [T]he 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.
                  An appellate court cannot substitute its
                  judgment for that of the finder of fact . . .
                  thus, we may only reverse the lower
                  court’s verdict if it is so contrary to the
                  evidence as to shock one’s sense of
                  justice. Moreover, where 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.

            Commonwealth v. Kim, 888 A.2d 847, 851
            (Pa.Super. 2005) (citations and quotations omitted).
            A motion for a new trial based on a challenge to the
            weight of the evidence concedes the evidence was
            sufficient to support the verdict. Commonwealth v.
            Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

      Here, appellant contends that the trial court abused its discretion when

it failed to grant the motion for a new trial. Appellant invites us to assess

witness credibility and reweigh the evidence to convince us to reach a different

result than the jury reached. We decline to do so. The jury, as fact-finder,



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had the duty to determine the credibility of the testimony and the evidence at

trial. Commonwealth v. Talbert, 129 A.3d at 536 (Pa.Super. 2015), appeal

denied, 138 A.3d 4 (Pa. 2016). Appellate courts cannot and do not substitute

their judgment for that of the fact-finder.

      Our review of the record supports our conclusion that the trial court

properly exercised its discretion in denying appellant’s weight claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/28/2018




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