J-S35017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                         Appellee

                    v.

HASSAN JOHNSON,

                         Appellant                       No. 2685 EDA 2015


             Appeal from the Judgment of Sentence July 21, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0004283-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                              FILED JUNE 14, 2016

       Appellant, Hassan Johnson, appeals from the judgment of sentence of

2   years’   probation   imposed     following    his   conviction   for   recklessly

endangering another person (REAP), 18 Pa.C.S. § 2705.                Counsel seeks

permission to withdraw from further representation pursuant to Anders v.

California, 386 A.2d 738 (Pa. 1967). Upon review, we find that counsel’s

Anders brief satisfies the requirements set forth in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).               Accordingly, we grant counsel’s

petition to withdraw and affirm the judgment of sentence.

       Appellant was convicted of REAP based on the following facts adduced

at trial:

       The origin of this case lies in a dispute over payment for work
       performed by the victim in this case - Charles Cantlin - on
       [Appellant]'s 2004 Mercedes.
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     At trial, Mr. Cantlin testified to the following:

           In November 2013, [Appellant] was experiencing problems
     with his 2004 Mercedes Benz and took the vehicle for repairs to
     C.S. Cantlin Automotive in West Conshohocken, Montgomery
     County, Pennsylvania, which is owned and operated by Mr.
     Cantlin. After examining the Mercedes, Mr. Cantlin informed
     [Appellant] that water damage had impacted the car's electrical
     systems. [Appellant] told Mr. Cantlin that he wanted to present
     a claim to his insurance company, and Mr. Cantlin informed
     [Appellant] that he would have to disassemble the car in order to
     provide the insurance company with an estimate for the cost of
     the repairs (N.T., July 21, 2015, pp. 15-22).

           [Appellant] authorized Mr. Cantlin to proceed, and Mr.
     Cantlin disassembled the car and prepared the estimate for the
     insurance company. Unfortunately, the insurance company -
     after a prolonged dispute with [Appellant] - refused to pay for
     the repairs. [Appellant] then directed Mr. Cantlin to reassemble
     the Mercedes without performing the repairs.          Mr. Cantlin
     informed [Appellant] that the bill would be $1,061.38, which was
     the charge for disassembling and reassembling the Mercedes,
     and reflected both a "goodwill discount" of $368.90, and Mr.
     Cantlin's waiver of his standard vehicle storage fees. [Appellant]
     told Mr. Cantlin that he would not be able to pay that amount in
     a single payment, and Mr. Cantlin told [Appellant] that they
     could work out a payment plan when [Appellant] returned to
     retrieve the Mercedes.

           Mr. Cantlin reassembled the vehicle and, when [Appellant]
     arrived back at C.S. Automotive on March 11, 2014, the
     Mercedes was in a garage on the premises, facing the garage's
     open bay doors, which led to a driveway and down to Matsonford
     Road. [Appellant] agreed that he would make an immediate
     credit card payment of $350, and that he would follow this with
     two additional payments over the next month to pay off the
     remainder of the debt.

           [Appellant], indeed, paid the $350 to Mr. Cantlin, utilizing
     a Mastercard, as is reflected by [Appellant]'s signature on a
     credit card receipt that was entered into evidence. Mr. Cantlin
     then gave [Appellant] an invoice to sign to demonstrate
     [Appellant]'s acknowledgment of the remainder of the debt owed
     on the car. [Appellant], however, did not sign this invoice, but
     simply put an "x" in the space for his signature.


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            As [Appellant] walked to his car in the garage, Mr. Cantlin
     realized that [Appellant] had not actually signed the invoice.
     Concerned that [Appellant] was refusing to acknowledge the
     debt that remained owing, Mr. Cantlin followed after [Appellant]
     and told him that he had to sign the invoice. [Appellant],
     however, insisted that he had signed the invoice, and Mr. Cantlin
     told him that the "x" was not a signature.           Words were
     exchanged, and Mr. Cantlin told [Appellant] that he would not
     allow [Appellant] to take the Mercedes until he received payment
     in full for the work he had done. [Appellant], however, reached
     inside the car and took the keys. Mr. Cantlin put his hand on
     [Appellant]'s shoulder and stood against the side of the car to
     prevent [Appellant] from entering it. Meanwhile, Mr. Cantlin's
     brother (Michael Cantlin), who also worked at C.S. Automotive,
     pushed the button to close the garage bay doors to stop the
     vehicle from leaving. Mr. Cantlin told [Appellant] that they
     needed to go back to the office to discuss how they were going
     to resolve the dispute, and [Appellant] apparently agreed.

            Mr. Cantlin and [Appellant] then walked back toward the
     office. While Mr. Cantlin was opening the office door, [Appellant]
     turned and ran back into the garage. [Appellant] reopened the
     garage bay doors, and got into and started the Mercedes. Mr.
     Cantlin chased after [Appellant], running back into the garage
     and standing directly in front of the car to prevent [Appellant]
     from driving away, telling [Appellant] to "shut the car off."

           Mr. Cantlin testified that [Appellant] then put the Mercedes
     in gear and began accelerating forward. At first, [Appellant]
     moved slowly, "nudging" the car forward, compelling Mr. Cantlin
     to back up as the car moved out of the garage and down the
     driveway toward Matsonford Road. After about thirty to forty-
     five seconds of this slow stop-and-start movement, [Appellant]
     then made a quick acceleration of the vehicle, surging forward
     and striking Mr. Cantlin. The force of the impact lifted Mr.
     Cantlin off of his feet and onto the hood of the car. [Appellant]
     then braked the vehicle and Mr. Cantlin was thrown from the
     hood of the car, landing in a traffic lane on Matsonford Road -- a
     busy road upon which other vehicles were travelling at the time
     of the incident. [Appellant] then drove off and left the scene.

            Michael Cantlin testified that he was a witness to the
     Mercedes striking his brother.       Michael Cantlin specifically
     testified that he saw [Appellant] accelerate forward while Mr.
     Cantlin was standing in front of the vehicle, that he saw the

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     Mercedes "surge" forward, and that he saw it hit Mr. Cantlin,
     sending him flying "about five, 10 feet," following which
     [Appellant] drove off.

           The parties entered into the record a stipulation as to what
     a former employee of C.S. Automotive named Jason Spina had
     told the police concerning his observations of the incident. In
     relevant part, the parties stipulated to the following:

            Spina told the police that he saw [Appellant] and Mr.
     Cantlin arguing while they were standing beside [Appellant]'s
     Mercedes in the garage. Spina reported that the argument
     ceased and he saw the men heading back toward the office.
     Spina stated that he then saw [Appellant] run back into the
     garage, with Mr. Cantlin chasing after him. Spina reported that
     he saw [Appellant] open the garage bay doors, jump into his car,
     and start the vehicle. Spina told the police that he heard Mr.
     Cantlin yell: "You're not taking this vehicle without paying."
     Spina reported that he saw Mr. Cantlin stand in front of the
     Mercedes, and that [Appellant] began "inching" the vehicle
     forward out of the garage, with Mr. Cantlin still standing in front
     of it. Spina said that he was concerned that Mr. Cantlin was
     going to be struck by the vehicle, so he [Spina] pulled open the
     car's door and grabbed hold of [Appellant]'s shirt.          Spina
     reported that the vehicle "began to move a little" and he then let
     go of [Appellant]'s shirt. Spina said that [Appellant] then:
     "gunned the accelerator with Cantlin still in front of the vehicle,
     hitting Cantlin, then slammed on the brake causing Cantlin to go
     flying backward toward Matsonford Road."

           [Appellant] testified on his own behalf at trial.

            Although Mr. Cantlin had testified that [Appellant] had
     been informed of what the charges would be before he arrived to
     pick up the Mercedes on March 11, 2014, [Appellant] claimed
     that he was surprised to see the amount of his bill on the invoice
     Mr. Cantlin gave him to sign. [Appellant] testified that this
     surprise led him to commit what he characterized as an act of
     "childishness" by putting an "x" on the invoice rather than
     signing it. [Appellant] testified that - after discovering the "x" -
     Mr. Cantlin followed him to his car and began yelling at him and
     grabbed his shoulder.       [Appellant] testified that, when Mr.
     Cantlin began walking toward the office, [Appellant] first began
     following him, but that he then went back to the garage, opened
     the garage doors, and got into his car. [Appellant] testified that


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     Mr. Cantlin then came back into the garage, standing in front of
     the car and yelling at him. [Appellant] acknowledged moving
     the Mercedes forward, but claimed that he did not "hit the gas,"
     but instead left the car in "idle" and moved his foot on and off
     the brake so that the car inched forward. [Appellant] claimed
     that he attempted to leave the garage because he was scared of
     Mr. Cantlin, who was "acting irate."

           [Appellant] testified that, as he was inching his car
     forward, Jason Spina came up to him, opened the car door, and
     attempted to pull him out. [Appellant] claimed that Spina's
     action shocked him and his "foot came off the brake and for a
     moment the car moved faster than I intended it to" and that he
     "believed" that Mr. Cantlin was "bumped." [Appellant] denied
     having put his foot on the gas or having deliberately accelerated,
     and denied ever seeing Mr. Cantlin thrown to the ground by the
     impact with the Mercedes. [Appellant] claimed that, after Mr.
     Cantlin was "bumped," he asked Mr. Cantlin: "Could you move
     please." According to [Appellant], Mr. Cantlin then moved out of
     the way, and [Appellant] drove off.

            Following careful consideration of the evidence presented,
     [the trial court] found [Appellant] guilty of [REAP], and acquitted
     him of the remaining charges. The [trial court] explained the
     court's reasoning behind the verdict at some length on the
     record. Stated in its simplest terms, the [trial court] found
     credible the testimony of Mr. Cantlin and his brother as to the
     events of March 11, 2014, and the undersigned rejected as
     incredible significant elements of [Appellant]'s testimony. More
     specifically, the [trial court] rejected as not credible [Appellant]'s
     claims: that he had not deliberately accelerated his car; that Mr.
     Cantlin had merely been "bumped" as a result of Jason Spina
     grabbing him; that he never saw Mr. Cantlin knocked to the
     ground; and that he only drove off after Mr. Cantlin complied
     with [Appellant]'s request that he step aside. Stated more
     directly, the [trial court] determined that [Appellant] deliberately
     accelerated the Mercedes, surging forward and striking Mr.
     Cantlin with such force that he was lifted off his feet and thrown
     onto the hood of the car. [Appellant] then braked the vehicle,
     with the result that Mr. Cantlin was thrown to the ground,
     following which [Appellant] fled the scene.

Trial Court Opinion, 11/23/15, at 1-7.




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      Appellant’s nonjury trial was held July 21, 2015.   As noted, he was

convicted of REAP, and acquitted of all other charges. He was immediately

sentenced to two years’ probation. On July 31, 2015, Appellant filed a post-

sentence motion seeking a new trial, alleging that the verdict was against

the weight of the evidence. The trial court denied the post-sentence motion

by order dated August 10, 2015.

      Appellant filed a timely appeal. By order docketed on September 11,

2015, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement

within twenty-one days. Appellant filed an untimely Rule 1925(b) statement

on October 13, 2015, with a request to file a Rule 1925(b) statement nunc

pro tunc. By order dated October 16, 2015, the trial court granted the nunc

pro tunc request and deemed Appellant’s Rule 1925(b) statement timely.

      Appellant’s now presents the following claims, via counsel’s Anders

brief, as follows:

      [1.] WHETHER THE TRIAL COURT ERRED IN DENYING THE
      [APPELLANT]'S MOTION TO DISMISS FOR FAILURE TO
      PRESERVE VIDEO EVIDENCE AND/OR TO TAKE AN ADVERSE
      INFERENCE FROM THE COMMONWEALTH'S FAILURE TO
      PRESERVE THE VIDEO RECORDING OF THE INCIDENT FOR
      WHICH THE [APPELLANT] WAS CHARGED.

      [2.] WHETHER THE [APPELLANT]'S CONVICTION FOR [REAP] IS
      SUPPORTED BY SUFFICIENT EVIDENCE INSOFAR AS THE
      COMMONWEALTH FAILED TO ESTABLISH THA[T] [APPELLANT]
      ACTED WITH THE REQUISITE RECKLESSNESS.

      [3.] WHETHER THE TRIAL COURT ERRED IN DENYING THE
      [APPELLANT]'S POST-SENTENCE MOTION FOR A NEW TRIAL
      BASED ON THE WEIGHT OF THE EVIDENCE.

Anders Brief, at 5.

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     “When faced with a purported Anders brief, this Court may not review

the merits of the underlying issues without first passing on the request to

withdraw.”    Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.

2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.

Super. 1997)).

     Court-appointed counsel who seek to withdraw from
     representing an appellant on direct appeal on the basis that the
     appeal is frivolous must:

        (1) petition the court for leave to withdraw stating that,
        after making a conscientious examination of the record,
        counsel has determined that the appeal would be frivolous;
        (2) file a brief referring to anything that arguably might
        support the appeal but which does not resemble a “no-
        merit” letter or amicus curiae brief; and (3) furnish a copy
        of the brief to the [Appellant] and advise the [Appellant] of
        his or her right to retain new counsel or raise any
        additional points that he or she deems worthy of the
        court's attention.
     Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998)
     (citation omitted).

Rojas, 874 A.2d at 639.       Appellant’s counsel has complied with these

requirements.    Counsel petitioned for leave to withdraw, and filed a brief

satisfying the requirements of Anders, as discussed, infra.     Counsel also

provided a copy of the brief to Appellant, and submitted proof that he

advised Appellant of his right to retain new counsel, proceed pro se, and/or

to raise new points not addressed in the Anders brief.

     Our Supreme Court has held, in addition, that counsel must explain

the reasons underlying his assessment of Appellant’s case and his conclusion

that the claims are frivolous. Thus, counsel’s Anders brief must satisfy the


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following criteria before we may consider the merits of the underlying

appeal:

      [W]e hold that in the Anders brief that accompanies court-
      appointed counsel’s petition to withdraw, counsel must: (1)
      provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that
      counsel believes arguably supports the appeal; (3) set forth
      counsel’s conclusion that the appeal is frivolous; and (4) state
      counsel’s reasons for concluding that the appeal is frivolous.
      Counsel should articulate the relevant facts of record, controlling
      case law, and/or statutes on point that have led to the
      conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

      Upon review of the Anders brief submitted by Appellant’s counsel, we

find it complies with the technical requirements of Santiago.        Counsel’s

Anders brief (1) provides a summary of the procedural history and facts of

this case; (2) directs our attention, when applicable, to the portions of the

record that ostensibly support Appellant’s claims of error; (3) concludes that

each of Appellant’s claims are frivolous; and (4) does so by citation to the

record and appropriate/applicable legal authorities. Thus, we now examine

whether Appellant’s claims are, indeed, frivolous.

      Appellant’s first claim concerns a video surveillance tape which

purportedly recorded the events that transpired at C.S. Automotive on March

11, 2014. Appellant sought to dismiss the charges based on the destruction

of this evidence or, alternatively, to have an adverse inference applied from

the Commonwealth’s failure to preserve that evidence.




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      As to the motion to dismiss, Appellant explicitly abandoned it prior to

trial. N.T., 7/21/15, at 4-5. Because the motion to dismiss was abandoned

below, the trial court did not rule on it. Consequently, there is no potential

error(s) to review with regard to that motion. Thus, we agree with counsel

that any claim raised on direct appeal asserting trial court error with regard

to that motion is frivolous.

      Nevertheless, trial counsel did request that an adverse inference be

drawn against the Commonwealth due to the destruction of the video

evidence. “Where evidence which would properly be part of a case is within

the control of the party whose interest it would naturally be to produce it,

and, without satisfactory explanation he fails to do so, the jury may draw an

inference that it would be unfavorable to him.”           Commonwealth v.

Trignani, 138 A.2d 215, 219 (Pa. Super. 1958).

      Appellant was tried non-jury. Thus, it was well within the trial court’s

discretion whether or not to construe the destruction of the surveillance

video as a fact adverse to the Commonwealth.         The trial court made the

following findings of fact with regard to the destruction of the video:

            During the course of the trial, Mr. Cantlin testified that
      C.S. Automotive had a video surveillance system, but that he
      was not very familiar with its operation. Mr. Cantlin testified
      that the police were called immediately after [Appellant] left C.S.
      Automotive following the incident on March 11, 2014. Mr.
      Cantlin further testified that Officer Matthew Bahn and Officer
      Bianchini of the West Conshohocken Police Department arrived
      within five minutes of the call and that, along with Mr. Cantlin,
      the officers watched a video of the incident that was captured by
      the surveillance system. Mr. Cantlin testified that the police


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      asked him for a copy of the video, but that he was unable to
      provide them with one immediately because he did not know
      how to make copies. Mr. Cantlin testified that he contacted his
      security company to learn how to make a copy of the video but
      by the time the security company responded - approximately 48
      hours later - the system had already recorded over the video of
      the incident, rendering it unavailable. The [trial court] fully
      credited Mr. Cantlin's testimony concerning the video in its
      entirety.

            Officer Bahn testified that he had indeed watched the video
      with Mr. Cantlin within minutes after the incident. The officer
      confirmed that he had asked Mr. Cantlin for a copy of the video,
      and he confirmed that Mr. Cantlin had told him that he was not
      familiar enough with the system to make a copy, and that he
      would have to contact the security company.

            Officer Bahn also testified as to what he saw on the video.
      Specifically, the officer testified that the video depicted a silver
      sedan "lurching its way out of the garage bay" while Mr. Cantlin
      stood in front of the car. The video then depicted the sedan
      accelerate, "striking [Mr. Cantlin], and throwing him onto the
      hood and then back, before the vehicle took off northbound on
      Matsonford Road." The [trial court] fully credited Officer Bahn's
      testimony in its entirety.

TCO, at 8-9.

      Based on these facts, the trial court concluded that it would not draw

an adverse inference against the Commonwealth based on the destruction of

the surveillance video:

            It has long been well-settled that the fact-finder may draw
      a permissive inference that missing evidence would have been
      unfavorable to the party who failed to introduce it when there is
      no satisfactory explanation offered for the failure to produce the
      evidence and a) the evidence was available to that party and not
      the other; b) the evidence contains or shows special information
      material to the issue at hand; and c) the evidence would not be
      merely cumulative.     See, e.g., [] Trignani[].        See also,
      Commonwealth v. Gibson, 309 A.2d 314 (Pa. Super. 1976).




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            As the [trial court] explained on the record, Mr. Cantlin's
      testimony provided a credible, reasonable, and fully satisfactory
      explanation as to why the Commonwealth did not produce the
      video. Further, and in any event, Officer's Bahn's account of
      what the video depicted - which the [trial court] fully credited -
      established no basis for the court to infer that the video would
      have been unfavorable to the Commonwealth had it been
      entered into evidence. Officer Bahn plainly testified that the
      video depicted the car come "lurching" out of the garage before
      it accelerated and struck Mr. Cantlin, testimony essentially
      corroborating the account of the incident provided by Mr. Cantlin
      himself. Additionally - perhaps because of the angle of the
      camera placement - Officer Bahn did not observe Jason Spina on
      the video at all. There was thus no reason for this court to draw
      an inference that the video would have supported the defense
      claim that Jason Spina "caused" defendant to strike Mr. Cantlin
      with the Mercedes.

TCO, at 10.

      We ascertain no abuse of discretion in the trial court’s decision not to

draw an adverse inference against the Commonwealth based on the

destruction of the surveillance video.      There is no indication, whatsoever,

that the video may have contained evidence favorable to Appellant. Indeed,

all the evidence and testimony credited by the trial court suggests that the

destroyed video would have corroborated the Commonwealth’s version of

events. Moreover, there is also no evidence of bad faith in the destruction of

the video.    The Commonwealth provided a satisfactory explanation of why

the evidence was destroyed: a third-party security company failed to

respond in time to avoid the automatic recording-over of the video of the

incident.    Nevertheless, the police acted promptly to view the video when

they responded to the scene, thus providing an alternative testimonial

source for the content of the video.


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        Next, Appellant contends the evidence was insufficient to prove he

possessed the requisite degree of recklessness for his REAP conviction. Our

standard of review of sufficiency claims is well-settled:

               A claim challenging the sufficiency of the evidence is a
        question of law. Evidence will be deemed sufficient to support
        the verdict when it establishes each material element of the
        crime charged and the commission thereof by the accused,
        beyond a reasonable doubt. Where the evidence offered to
        support the verdict is in contradiction to the physical facts, in
        contravention to human experience and the laws of nature, then
        the evidence is insufficient as a matter of law. When reviewing a
        sufficiency claim[,] the court is required to view the evidence in
        the light most favorable to the verdict winner giving the
        prosecution the benefit of all reasonable inferences to be drawn
        from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

        REAP is defined as follows: “A person commits a misdemeanor of the

second degree if he recklessly engages in conduct which places or may place

another person in danger of death or serious bodily injury.”      18 Pa.C.S. §

2705.

        A person acts recklessly with respect to a material element of an
        offense when he consciously disregards a substantial and
        unjustifiable risk that the material element exists or will result
        from his conduct. The risk must be of such a nature and degree
        that, considering the nature and intent of the actor's conduct
        and the circumstances known to him, its disregard involves a
        gross deviation from the standard of conduct that a reasonable
        person would observe in the actor's situation.

18 Pa.C.S. § 302(b)(3).




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      The trial court found that the element of recklessness was clearly met

under the facts of this case:

      Plainly, when [Appellant] made the quick acceleration coming
      out of the garage, surging forward and striking Mr. Cantlin with
      such force that he was thrown onto the hood of the car and then
      onto busy Matsonford Road, [Appellant] was disregarding an
      obvious risk of Mr. Cantlin suffering death or great bodily harm.
      Indeed, even without this final sudden acceleration - which the
      [trial court] found as a fact took place – [Appellant]'s conduct in
      repeatedly "nudging" the Mercedes forward with Mr. Cantlin
      standing directly in front of it constituted reckless behavior
      under the statute.

TCO, at 12.

      We agree. Indeed, Appellant’s own testimony corroborated the latter

basis for a finding of recklessness.     Accordingly, Appellant’s sufficiency

claim, based on the insufficiency of the evidence pertaining to the requisite

degree of recklessness necessary to establish his conviction for REAP, would

be frivolous.

      Finally, Appellant contends that the trial court abused its discretion

when it denied his post-sentence motion alleging that the verdict was

against the weight of the evidence.     We apply the following standard of

review to a challenge that a verdict is against the weight of the evidence:

         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.
         Because the trial judge has had the opportunity to hear
         and see the evidence presented, an appellate court will
         give the gravest consideration to the findings and reasons

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J-S35017-16


         advanced by the trial judge when reviewing a trial court's
         determination that the verdict is against the weight of the
         evidence. 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.

         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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

      Here, the trial court credited the testimony of Mr. Cantlin, his brother,

and Officer Bahn, as well as the stipulation as to Jason Spina’s statement to

police. The trial court found Appellant’s account incredible, at least in part.

We have no basis in the record upon which to question the discretion of the

trial court with regard to these credibility determinations. In any event, we

agree with the trial court that Appellant’s own testimony established his guilt

for REAP. Thus, we ascertain no abuse of discretion in the trial court’s denial

of Appellant’s weight-of-the-evidence motion.


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     Finally, our review of the record reveals no other potential, non-

frivolous issues which Appellant could raise on appeal. As such, we agree

with counsel that a direct appeal in this case is wholly frivolous.

Accordingly, we grant counsel’s motion to withdraw.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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