J-S08011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    FRANCIS ANTHONY MILLIARD                   :
                                               :   No. 702 WDA 2017
                       Appellant

          Appeal from the Judgment of Sentence November 18, 2016
    In the Court of Common Pleas of Elk County Criminal Division at No(s):
                          CP-24-CR-0000283-2012


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 23, 2018

       Francis Anthony Milliard appeals from the judgment of sentence,

entered in the Court of Common Pleas of Elk County, following his conviction

by a jury for arson and related offenses.1 After review, we affirm.

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

       The incident which results in the filing of the [foregoing] charges
       against [] Milliard was a fire that occurred on or about May 30,
       2012, at the residence of Pauline Smith, located at 521 West Main
       Street, Ridgeway Township, Elk County, Pennsylvania. After
       investigation into the origin and cause of the fire, Pennsylvania
       State Trooper[] Patrick S. McKackin, Alternate Deputy Fire
       Marshal[,] revealed gasoline was present. State Farm Insurance
       Company also conducted an independent investigation into the
____________________________________________


1 Arson, 18 Pa.C.S.A. § 3301(a)(1)(i); criminal conspiracy, 18 Pa.C.S.A. §
903(a)(1); criminal solicitation, 18 Pa.C.S.A. § 902(a), arson and related
offenses, 18 Pa.C.S.A. § 3301(d)(2); two counts of criminal mischief, 18
Pa.C.S.A. § 3304(a)(1), recklessly endangering another person, 18 Pa.C.S.A.
§ 2705.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     fire, and fire investigator Robert G. Stewart [] concluded the cause
     of the fire was a result of arson.

     During the investigation into the fire, it was discovered that
     Anthony Milliard, Milliard’s son, was involved with setting the fire
     at 521 West Main Street. On July 10, 2012, Anthony Milliard was
     taken into custody on an unrelated matter. When questioned
     about [the] 521 West Main Street fire, Anthony Milliard explained
     his involvement in setting the fire, which was at the direction of
     Milliard. . . . During his recorded interview, Anthony Milliard
     explained that on May 30, 2012 around 3:00 a.m., he was awoken
     by Milliard and told to get ready. The two left their home at 76
     Long Level Rd., Ridgeway, Pennsylvania in a blue minivan owned
     by Milliard[,] at which time Milliard handed a glass jar filled with
     gasoline, black gloves, and [a] rag to Anthony Milliard and
     informed [him] he was going to burn down the residence of
     Michelle Park[.] . . . Milliard and Anthony Milliard proceeded to
     West Main street in [the] blue minivan, and parked at the West
     End Supermarket. Milliard pointed out [Parks’] residence, and
     instructed Anthony Milliard to light her house on fire. While
     Milliard remained in the minivan, Anthony Milliard went between
     two houses and poured gasoline on the back of 521 West Main
     Street, igniting the fire. Once the residence, which he believed to
     be owned by Park[,] was on fire, Anthony Milliard returned to the
     minivan where Milliard was waiting. They left the West End
     Supermarket, taking West Main Street and Grant Street in order
     to return to 76 Long Level Road. While on Grant Street, Anthony
     Milliard threw the now[-]empty glass jar and black gloves out the
     window. It was not until the next day that it was discovered
     Anthony Milliard lit Patricia Smith’s residence, instead of Parks’
     residence[,] on fire.

                                *      *     *

     Cecilia Jordan, Milliard’s Cousin[,] William Thortwart, employed by
     Milliard, and Scott Lovell, Francis Milliard’s cousin[] all interacted
     with Milliard following the fire. All three have similar testimony
     that Milliard talked of a “weenie roast” that occurred at [] Parks’
     house and subsequently how upset Milliard got once he learned
     that it was not [her] house that caught on fire but instead []
     Smith’s house. Moreover, there was testimony from [] Thomas
     Prechtl that places two men in the blue minivan he saw at the
     West End Supermarket on the night of May 30, 2012. [] Prechtl
     was up in the early hours of May 30, 2012 as he was unable to

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       sleep. He watched on as a young man exited the minivan and ran
       down the street. [] Prechtl also noticed a man with long hair
       remain in the minivan on the driver side. He was able to see the
       two men as there is street lighting and the minivan’s overhead
       lighting came on as the younger man left the minivan. [] Prechtl
       was later shown two pictures of Milliard and he believes this was
       the driver of the blue minivan, who remained in the minivan as
       the younger man ran off.

Trial Court Opinion, 7/10/17, at 2-3.

       On September 30, 2016, following a three-day jury trial, Milliard was

convicted of arson and related offenses. On November 18, 2016, the trial

court sentenced Milliard to an aggregate term of imprisonment of 26 to 57

years. On December 22, 2016, Milliard filed a timely post-sentence motion,

which the trial court denied in part and granted in part. Accordingly, on April

10, 2017, the trial court issued a subsequent order modifying Milliard’s

sentence.2

       On May 8, 2016, Milliard filed a timely notice of appeal. Both Milliard

and the trial court have complied with Pa.R.A.P. 1925.3 On appeal, Milliard
____________________________________________


2 On April 10, 2017, the trial court issued an order denying Milliard’s motion
for a new trial and granting his motion for modification of sentence, such that
his conviction of the offense of arson endangering persons, 18 Pa.C.S.A. §
3301(a)(1)(ii), was merged with the offense of arson endangering persons,
18 Pa.C.S.A. § 3301(a)(1)(i), for the purposes of sentencing. The trial court
reasoned that it could not impose consecutive sentences on a defendant
convicted of two counts of arson endangering persons based on the same
episode or conduct for setting fire to residential property.               See
Commonwealth v. Lopez, 663 A.2d 746 (1995). Milliard does not challenge
the legality and/or discretionary aspects his sentence on appeal.

3 In Milliard’s Pa.R.A.P. 1925(b) statement, he raised two issues: (1) whether
the evidence was sufficient to sustain a conviction for arson and related
offenses, and (2) whether the verdict was against the weight of the evidence.
However, Milliard has abandoned his sufficiency claim in his appellate brief.

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raises the following issue for our review: “Whether the lower court erred in

entering verdicts against the weight of the evidence as to all charges.” Brief

of Appellant, at 4.

      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, 744 A.2d 745, 751-52
      (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177, 1189
      (Pa. 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, 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. (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, 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.


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            Farquharson, 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, 744 A.2d at 753.

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

Clay, 64 A.3d at 1054-1055.

      Instantly, Milliard challenges the credibility of the Commonwealth’s

witnesses. Specifically, he avers that, generally, the witnesses’ testimonies

were fatally inconsistent with that of Anthony Milliard, who testified that

Milliard did not influence or solicit his actions, and thus the verdict was against

the weight of the evidence.




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      “The weight of the evidence claim is exclusively for the finder of fact,

which is free to believe all, part or none of the evidence, and to assess the

credibility of the witnesses.” Commonwealth v. Lopez, 57 A.3d 74, 80-81

(Pa. Super. 2012) (emphasis added), quoting Commonwealth v. Johnson,

668 A.2d 608, 612 (Pa. 2003). This court “cannot substitute its judgment for

that of the jury on issues of credibility.” Id. at 81.

      Anthony Milliard testified that during the early morning hours of May 30,

2012, he left Milliard’s home in Milliard’s minivan, and his father went to an

unnamed friend’s home. Anthony Milliard added that he alone went to the

West End Supermarket, parked the minivan there, and proceeded to use

gasoline and a burning rag to ignite Smith’s home on fire. Milliard’s recitation

of the facts at trial was inconsistent with his preliminary hearing testimony

and a written statement he provided to police on July 10, 2012, wherein he

implicated his father’s involvement in the events leading to the arson of

Smith’s home. See N.T., 9/28/16, at 9-13. Additionally, Thomas Prechtl, an

eyewitness, refuted Anthony Milliards trial testimony.        Prechtl stated there

were two occupants, not one, in Milliard’s blue minivan, which he saw parked

outside the West End Supermarket on the early morning hours of May 30,

2012. Moreover, Ridgway Borough Police Department Officer Bridgette Asti

testified that Milliard confided in her that he “lit the fire, that he did it for his

dad.” Id. at 62. The jury also found credible the testimony of Parks, William




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Thorwart, Jordan4 and Donna Covel, Milliard’s then girlfriend, all of whom

corroborated the facts implicating Milliard’s involvement in the arson of

Smith’s home.

       Herein, in reaching its verdict, the jury credited the foregoing witnesses’

testimony over that of Anthony Milliard, and thus, we may not disturb the

jury’s credibility determination in this regard.    Lopez, supra.     The record

supports the trial court’s reasoning, and we discern no abuse of discretion in

the trial court’s decision to deny relief on Milliard’s challenge to the weight of

the evidence. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa.

2003) (where trial court has ruled on weight claim, appellate court’s review is

limited to whether trial court palpably abused its discretion in ruling on weight

claim). Accordingly, Milliard’s weight claim must fail.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2018

____________________________________________


4 Thorwart and Jordan both testified to Milliard’s use of the term “weenie roast”
in reference to a fire that he believed was occurring at Parks’ home. See N.T.
Trial, 9/28/16, at 22, 28. Jordan further testified that Milliard was “kind of
angry” upon learning that Parks’ home was not on fire, id. at 22, and Thorwart
added that he did not believe Milliard and Parks got along. Id. at 29.

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