J-S64021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CLARENCE L. HAMILTON,

                            Appellant                  No. 89 MDA 2017


           Appeal from the Judgment of Sentence December 5, 2016
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0000304-2016


BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 12, 2017

        Appellant, Clarence L. Hamilton, appeals from the judgment of

sentence entered following his conviction of indecent assault.1 We remand

with instructions and retain jurisdiction.

        We summarize the procedural history of this matter as follows.   On

December 27, 2014, the adult female victim was spending the night on the

living room floor of Appellant’s home in order for Appellant’s daughter to

drive the victim to work in the morning. The victim claimed that, during the

course of the night, Appellant woke her by inappropriately touching her with

his erect penis. Appellant was charged with indecent assault.
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 3126.
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        On August 26, 2016, a jury convicted Appellant of the crime stated

above. On December 5, 2016, the trial court sentenced Appellant to serve a

term of incarceration of six to twenty-three months. Appellant filed a post-

sentence motion on December 7, 2016, which sought to modify Appellant’s

sentence.    On December 15, 2016, Appellant filed a supplemental post-

sentence motion arguing that the verdict was against the weight of the

evidence. On December 27, 2016, the trial court entered an order denying

Appellant’s motion to modify his sentence. The trial court entered an order

on December 29, 2016, which denied Appellant’s supplemental post-

sentence motion challenging the weight of the evidence. This timely appeal

followed.

        On January 20, 2017, the trial court entered an order directing

Appellant to file, within twenty-one days, a statement pursuant to Pa.R.A.P.

1295(b).    On February 10, 2017, Appellant complied with the trial court’s

directive and filed a Pa.R.A.P. 1925(b) statement listing the sole issue on

appeal as a challenge to the weight of the evidence. Pursuant to Pa.R.A.P.

1925(a), the trial court filed a statement in lieu of opinion on February 27,

2017.     In its Pa.R.A.P. 1925(a) statement, the trial court indicated that

Appellant’s issue was waived because the trial transcripts were not part of

the certified record.    On March 1, 2017, Appellant filed a motion for

transcripts. On March 13, 2017, the Court Reporter of Dauphin County filed

a lodging notice indicating that the transcripts in this matter would be


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certified and filed within five days in accordance with Pa.R.A.P. 1922(a).

The transcripts are currently part of the supplemental certified record before

us on appeal.

      Appellant presents the following issue for our review:

      I. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED
      APPELLANT’S POST-SENTENCE MOTION BECAUSE THE VERDICT
      WAS SO CONTRARY TO THE WEIGHT OF THE EVIDENCE AS TO
      SHOCK ONE’S SENSE OF JUSTICE?

Appellant’s Brief at 5 (underlining omitted).

      In his sole issue, Appellant argues that the verdict was against the

weight of the evidence.    Appellant’s Brief at 11-13.   Essentially, Appellant

contends that the Commonwealth failed to prove that Appellant’s version of

events was not plausible. Id. at 12.

      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-[3]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

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     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
          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

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            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)).

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).

      Our review of the matter at this juncture is hampered due to the trial

court’s failure to fully comply with Pa.R.A.P. 1925(a). Rule 1925(a) states:

      Except as otherwise prescribed by this rule, upon receipt of the
      notice of appeal, the judge who entered the order giving rise to
      the notice of appeal, if the reasons for the order do not already
      appear of record, shall forthwith file of record at least a
      brief opinion of the reasons for the order, or for the
      rulings or other errors complained of, or shall specify in
      writing the place in the record where such reasons may
      be found.

Pa.R.A.P. 1925(a) (emphasis added). The purpose of this rule is to provide

the appellate court with a statement of reasons for the order to permit

effective and meaningful review of lower court decisions. Commonwealth

v. Benchoff, 700 A.2d 1289, 1293 (Pa. Super. 1997). “The absence of a

trial court opinion poses a substantial impediment to meaningful and

effective appellate review. . . . Rule 1925 is thus a crucial component of the

appellate process.”    Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.

1998).   See also Commonwealth v. Kinsel, 588 A.2d 34 (Pa. Super.




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1991) (remanding to trial court for preparation of opinion pursuant to

Pa.R.A.P. 1925(a)).

      Instantly, our ability to conduct meaningful review of the trial court’s

determination of Appellant’s challenge to the weight of the evidence on

appeal is impeded by the nature of the trial court’s opinion, which addressed

only the fact that the notes of testimony were not part of the certified record

at the time of preparation of the Pa.R.A.P. 1925(a) opinion. Because we do

not have the benefit of a Rule 1925(a) opinion addressing the claim that the

trial court erred in denying Appellant’s post-sentence motion challenging the

weight of the evidence, we remand this matter to the trial court with the

directive to write an additional Pa.R.A.P. 1925(a) opinion. We direct the trial

court to set forth the reasons it determined Appellant’s weight of the

evidence claim lacked merit and the basis for denying Appellant’s post-

sentence motion. The trial court is instructed to comply with this directive

within thirty days from the filing of this memorandum. Panel jurisdiction is

retained.

      Case remanded for preparation of a Pa.R.A.P. 1925(a) opinion. Panel

jurisdiction retained.




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