J-S83016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SHAWN HERRING,

                            Appellant                No. 118 WDA 2016


          Appeal from the Judgment of Sentence November 10, 2015
             In the Court of Common Pleas of Washington County
             Criminal Division at No(s): CP-63-CR-0002672-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 23, 2016

       Appellant, Shawn Herring, appeals from the judgment of sentence

entered on November 10, 2015,1 in the Washington County Court of

Common Pleas. We affirm.

       The relevant facts and procedural history of this matter were set forth

by the trial court as follows:

             On August 28, 2014, a two-count criminal complaint was
       filed against [Appellant] for criminal mischief (M-2) and
       conspiracy to commit criminal mischief - property damage (M-2).
       18 Pa.C.S.A. § 3304(a)(5); 18 Pa.C.S.A. § 903(a)(1). The
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  On December 7, 2015, the trial court entered an amended sentencing
order to correct a typographical error. In the original sentencing order,
restitution was set at “$3,2066.78,” and the amended sentencing order
corrected the error to reflect that restitution was set at “$3,266.78.”
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      affidavit of probable cause alleged that [Appellant] and two other
      persons approached Kristen Stein’s 1998 Toyota Camry and
      caused damage to it. The damage perpetrated consisted of
      scratching two key lines along the entire right side of the vehicle,
      removing both front windshield wipers, breaking two rear
      taillight lenses, breaking the driver’s side view mirror, and
      flattening both rear tires as well as the left front tire.

             [Appellant] pled not guilty and requested a non-jury trial.
      The trial was held on August 11, 2015 before the undersigned.
      After hearing all the evidence, including viewing video clips, the
      trial court concluded that the prosecution proved its case []
      beyond a reasonable doubt that [Appellant] committed the
      alleged crime and that he conspired with two others to do so.
      The trial court ordered that a pre-sentence investigation report
      be completed and set November 10, 2015 as the sentencing
      date. At that date, [Appellant] was sentenced to one year of
      probation for each charge, which was to run concurrently, and to
      pay $3,266.78 in restitution to Ms. Stein.

Trial Court Opinion, 12/18/15, at 1. On November 20, 2015, Appellant filed

timely post-sentence motions that were denied by the trial court on

December 18, 2015. This timely appeal followed.

      On    appeal,   Appellant    presents    two      issues   for   this   Court’s

consideration:

      I. Did the trial court err by finding [Appellant] guilty of criminal
      mischief and conspiracy when the evidence presented at trial
      was insufficient to prove [Appellant] committed the alleged
      crimes beyond a reasonable doubt?

      II. Did the trial court err by finding the weight of the evidence
      presented at trial supported the conviction of [Appellant]?

Appellant’s Brief at 7 (full capitalization omitted).

      Our standard of review for claims challenging the sufficiency of the

evidence is well-settled:


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      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the trier of fact while
      passing upon the credibility of witnesses and the weight of the
      evidence produced, is free to believe all, part or none of the
      evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011)

(citation omitted).

      In its opinion, the trial court addressed Appellant’s challenge to the

sufficiency of the evidence as follows:

            A person is guilty of criminal mischief if he or she
      “intentionally damages real or personal property of another.” 18
      Pa. C.S.A. § 3304(a)(5). A person is guilty of conspiring to
      commit a crime if he or she “agrees with such other person or
      persons that they or one or more of them will engage in conduct
      which constitutes such crime or an attempt or solicitation to
      commit such crime.” 18 Pa. C.S.A. § 903(a)(1). The question
      before this Court is whether the evidence and associated
      reasonable inferences, viewed in the light most favorable to the
      Commonwealth, established the elements of these crimes
      beyond a reasonable doubt.

            The evidence presented at trial established that Ms. Stein
      (hereinafter referred to as “Stein”) lived in the North Gate
      apartment complex in South Strabane at the time of the

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     incident. Stein testified that she parked her vehicle in the
     apartment complex lot during the day on August 11, 2014. On
     August 12, 2014, at approximately 1 p.m., Stein left her
     apartment to walk to her car at which time she noticed the
     aforementioned damage. She immediately called 911 to report
     the damage caused to her car. Soon thereafter, Officer Drew Hilk
     of the South Strabane Police Department arrived at the
     apartment complex to investigate. Stein identified the damage
     caused to her vehicle for Officer Hilk and during trial. Stein
     testified that she was certain none of said damage was present
     the day before.

           When Officer Hilk interviewed Stein, he asked her if she
     could think of any suspects. She provided only [Appellant’s]
     name as a suspect and described [Appellant] to Officer Hilk as a
     “large individual.” The testimony at trial was that [Appellant]
     weighed over 400 pounds. In addition, Stein described
     [Appellant’s] car to Officer Hilk.

           Officer Hilk secured video surveillance of the apartment
     complex parking lot for the relevant period of time. The
     surveillance video is black and white and does not provide close-
     up footage. The video does depict a very light colored sedan with
     a sun roof matching the description Stein provided to Officer Hilk
     of [Appellant’s] vehicle. Further corroborating the identification,
     Stein testified that she had seen [Appellant’s] car 20 times as of
     August 12, 2014. Moreover, the sedan was driven through the
     parking lot and parked at a far end with purpose. Three men got
     out of the car of which two men appeared to have a normal build
     or physique. One of the men, however, appeared in the video to
     have a very large physique; he unmistakably obese. All three
     men walk directly to Stein’s car, ignoring all the other vehicles.
     Upon arriving at Stein’s vehicle, the three men damage it and
     then swiftly return to the sedan and drive away. Viewing this
     uncontested evidence, the trial court found the actions of the
     men to be intentional—clearly, this was not a random act of
     vandalism.

           During the trial, the court recognized the discrepancies in
     the testimony that [Appellant’s] counsel pointed to in his post-
     sentencing motions—namely, the testimony concerning the exact
     nature of [Appellant’s] relationship to Stein. More specifically,
     Stein made statements to Officer Hilk at the time of the
     investigation about her romantic involvement with [Appellant]

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      that conflicted with her testimony during the trial. While the
      Court acknowledged these inconsistencies when delivering the
      verdict, the Court did find that the evidence established some
      kind of pre-existing relationship between [Appellant] and Stein.
      Whether the relationship was sexual in nature was not
      dispositive. The Court’s finding of guilt was determined by the
      fact of a relationship in conjunction with the surveillance video
      showing single-mindedness, a car matching Stein’s uncontested
      description of [Appellant’s] car, and a perpetrator whose
      distinctive physical size corresponded with that of [Appellant]. In
      reviewing this evidence now in the light most favorable to the
      Commonwealth, together with all reasonable inferences, this
      Court concludes that the trier of fact could have found that each
      element of criminal mischief and conspiracy to commit the same
      was established beyond a reasonable doubt. Stated differently,
      there was sufficient evidence under the combined circumstances
      to support [the] conviction[s].

Trial Court Opinion, 12/18/15, at 2-4.

      We discern no error in the trial court’s conclusion. As the trial court

noted, when Ms. Stein first spoke to Officer Hilk, she identified Appellant as

a possible suspect in the investigation. The court reviewed a video recording

that showed three men exit a car outside of Ms. Stein’s apartment, and

these men proceeded to cause damage to Ms. Stein’s vehicle.         This video

revealed that one of the perpetrators matched Appellant’s distinctive

physical characteristics.   The video also showed that the car in which the

perpetrators arrived was similar to the vehicle that Ms. Stein described as

belonging to Appellant.     Moreover, we conclude that the intricacies of the

relationship between Ms. Stein and Appellant are immaterial.         Thus, we

agree with the trial court that the evidence was sufficient to prove that




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Appellant committed the crimes of criminal mischief and conspiracy to

commit criminal mischief beyond a reasonable doubt.

      Next, Appellant presents a challenge to the weight of the evidence. At

the outset, we note that “the weight of the evidence is a matter 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.

Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015).          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-[7]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:




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          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
          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-[3]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-
     [11]85 (1993)).



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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).

      In the case at bar, the trial court, sitting as the finder of fact, chose to

believe the evidence presented by the Commonwealth, as was its right. The

trial court noted that Appellant’s argument on this issue is premised on the

same contention that Appellant utilized in challenging the sufficiency of the

evidence. Trial Court Opinion, 12/18/15, at 4.       In its conclusion, the trial

court found that there was nothing shocking about the verdict. Id.

      Based upon our review of the record, we agree with the trial court,

which, as the fact-finder, was free to believe all, part, or none of the

evidence against Appellant. Gonzalez, 109 A.3d at 723. The court weighed

the testimonial evidence and the evidence from the surveillance video and

found that Appellant perpetrated the crimes in question. This determination

is not so contrary to the evidence as to shock one’s sense of justice, and this

Court will not assume the role of fact-finder and reweigh the evidence.

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

refusing to grant relief on Appellant’s challenge to the weight of the

evidence.

      For the reasons set forth above, Appellant is entitled to no relief on

either of the issues presented. Therefore, we affirm Appellant’s judgment of

sentence.


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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




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