J-S35024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BYRON PAUL MAYNE

                            Appellant               No. 1932 MDA 2013


          Appeal from the Judgment of Sentence of August 27, 2013,
                In the Court of Common Pleas of York County
              Criminal Division at No.: CP-67-CR-0004240-2012


BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 26, 2014

       Byron Mayne appeals his August 27, 2013 judgment of sentence. We

affirm.

       Keith Kehring, who maintains and transports a fleet of tractor-trailers

for a living, regularly parks such vehicles on the street in front of his

residence in Hanover, Pennsylvania. On May 5, 2012, at approximately 6:00

p.m., Mr. Kehring attempted to park a forty-eight foot tractor-trailer outside

of his home. On that particular evening, however, no parking spaces were

available. Therefore, Mr. Kehring parked the truck approximately one block




____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       Before Mr. Kehring exited the truck, Mayne, who was outdoors doing

yard work, began walking towards Mr. Kehring and



Mr. Kehring attempted to step out of the truck, Mayne shoved him back into

the cab. Mayne then turned around and walked back onto his property. At

that time, Mr. Kehring called 911 and waited on the sidewalk next to his

tractor-trailer for the police to arrive.

       Shortly thereafter, Mayne, now carrying a large container filled with

gasoline, approached Mr. Kehring again. As Mayne reached the sidewalk he

set the gasoline can on the pavement, pulled a firearm from his waistband,

and pointed it directly at Mr. Kehring.          Mr. Kehring ducked around to the

other side of the tractor-

Mayne until the police arrived. Id. at 91. As a result of these events, police

charged Mayne with two counts of terroristic threats,1 one count of simple

assault,2 one count of recklessly endangering another person,3 two counts of

harassment (one graded as a summary offense and one graded as a third-

degree misdemeanor),4 and two counts of disorderly conduct.5
____________________________________________


1
       18 Pa.C.S. § 2706(a)(1).
2
       18 Pa.C.S. § 2701(a)(3).
3
       18 Pa.C.S. § 2705.
4
       18 Pa.C.S. §§ 2709(a)(1) and 2709(a)(4), respectively.




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      Mayne proceeded to a jury trial on May 15, 2013.         At trial, Mayne



                                                  yne also presented evidence



questioned Mr. Kehring about an active bench warrant that Mr. Kehring had

pending against him in Illinois. Mayne further argued that the jury should

find t



testimony.6 Nevertheless, on May 17, 2013, the jury found Mayne guilty of

simple assault, recklessly endangering another person, and one count of

harassment (graded as a third-degree degree misdemeanor).            The jury

returned a verdict of not guilty on both counts of terroristic threats and on

both counts of disorderly conduct.




                       _______________________
(Footnote Continued)
5
      18 Pa.C.S. §§ 5503(a)(1) and 5503(a)(3), respectively.
6
      At trial, Mrs. Kehring testified that she was outside of her home at the
time of the alleged incident. She further testified that Mr. Kehring called her

According to Mrs. Kehring, she then walked to the edge of her property, and,
from approximately 200 feet away, she observed Mayne pointing a firearm
at Mr. Kehring. Id. at 122.




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       With regard to the summary harassment charge, the trial court, sitting

as the fact-finder, found Mayne not guilty.7 Specifically, the court reasoned

as follows:

       On the count of summary harassment that is before the [c]ourt,
       I find [Mayne] not guilty[. T]he testimony of Ms. Kehring [was]
       incredible and conflicting with the testimony of Mr. Kehring, and
       incredible that she can openly see a handgun at approximately
       200 feet while these parties were supposedly moving around, as
       her husband described, pla[y]ing ring around the rosie in a
                                                  crimen falsi case and
       conflicting testimony with him and Mrs. Kehring, the [c]ourt
       finds his testimony to be incredible.


       The character witnesses were strong, credible and professional
       people, and that alone bears reasonable doubt in my mind.

N.T. at 330-31.

       On August 26, 2013, Mayne filed a motion for a new trial, wherein he



M

motion for a new trial and sentenced him to two years of county

intermediate punishment for simple assault and to a concurrent term of two


____________________________________________


7
      Under both the United States and Pennsylvania Constitutions, Mayne
was not entitled to a jury trial on this charge. Commonwealth v. Smith,
868 A.2d 1253, 1257 (Pa. Super. 2005) (holding that no right to a jury trial
exists when a sentence of six months or less is imposed); 18 Pa.C.S. § 1105

to imprisonment for a term which shall be fixed by the court at not more




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years of county intermediate punishment for recklessly endangering another

                                                                   -14.

       On October 25, 2013, Mayne timely filed a notice of appeal. 8      On

November 7, 2013, the trial court ordered Mayne to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P.        1925(b).   On

November 27, 2013, Mayne filed his Rule 1925(b) statement. On January 7,

2014, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

                                                             ial] court abuse



                             9
                                 Brief for Mayne at 4.



to the weight of the evidence, we review the

discretion, rather than the underlying question of whether the verdict is

against the weight of the evidence. Commonwealth v. Smith, 985 A.2d

____________________________________________


8
       On September 5, 2013, Mayne filed a post-sentence motion, which the

2013, notice of appeal was timely filed.
                                      Commonwealth v. Claffey, 80
                                           -sentence motions are filed,
the judgment of sentence does not become final until those motions are


9
     A weight of the evidence claim must be raised in a motion prior to
sentencing, an oral motion at sentencing, or a post-sentence motion.
Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013). Here,
Mayne preserved his challenge to the weight of the evidence when he filed a
motion for a new trial on August 26, 2013.




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886, 888 (Pa. 2009). Because the jury is free to believe all, part, or none of

the evidence presented, a new trial should not be granted merely because

the judge, on the same facts, would have arrived at a different conclusion.

Commonwealth v. Widmer

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

                                                                 Id. (citation

omitted).   Hence, the trial court should award a new trial only when the



justice and the award of a new trial is imperative so that right may be given

                                    Commonwealth v. Brown, 648 A.2d

1177, 1189 (Pa. 1994) (citation omitt

of a motion for a new trial based on a weight of the evidence claim is the

                               Commonwealth v. Ramtahal, 33 A.3d 602,

609 (Pa. 2011).

      This does not mean, however, that the trial

or deny a motion for a new trial based upon a challenge to the weight of the



our Supreme Court has explained as follows:

                              ports 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

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      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)).

      In his challenge to the weight of evidence, Mayne principally argues



could not support a finding of guilt. Mayne sets forth several examples of

such purported inconsistencies. First, Mayne notes that Mr. Kehring testified

that, before he stepped out of the truck, he could not hear anything that

Mayne was saying.        Mr. Kehring further explained that Mayne first

threatened him as he was stepping out of the vehicle.          However, Mrs.

Kehring testified at trial that Mr. Kehring called her from his cell phone when

he was parking the truck, and informed her that Mayne had threatened him.



to mention this supposed phone call.

      Mayne also notes that Mr. Kehring testified at trial that he saw Mayne



Kehring failed to reveal this detail when he spoke with the police or when he

                                                                           osed




retail theft, conspiracy to commit retail theft, and bad checks. Mr. Kehring

also pleaded guilty to wage tax violations on five separate occasions, and

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had an active bench warrant in the state of Illinois when he testified at




challenge to the weight of the evidence lacked merit. Specifically, the trial

court reasoned as follows:

      What we have in this situation is a case where two different
      fact[-]finders saw the evidence differently. We have a jury
      sitting as a fact[-]finder on the misdemeanor charges and we
      had the judge sitting as a factfinder on the summary charge[].

      The jury believed the testimony apparently believed the
      testimony of . . . [Mr.] Kehring and his wife. The [c]ourt has
      previously stated that it was not convinced when it was sitting as
      a fact[-]finder in the summary offense by the testimony.

                                     ***

      So, we have two different fact[-]finders coming to two different
      conclusions. For the court to grant the relief requested, . . . I
      would have to invade the province of the jury as a fact[-]finder
      and replace their factual findings with my own. I thin
      judicial cronyism or improper.

      Our system allows for these two fact[-]finders to sit in the same
      case, and it really is a matter of weighing the credibility of the
      alleged victims and to find that they were convinced by that
      testimony even though this court was not.


      witnesses to be particularly persuasive. They span the course of

      career.   He is a mature individual.   He is a professional in the

      activity devoid certainly of any prior violent conduct as was
      charged in this case, but that is my view of the facts.

N.T.S. at 2-3 (minor modifications for clarity).




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      The jury, as the fact-finder, was free to evaluate the testimony of the

witnesses and to determine the weight that should be assigned to the

evidence.   In rendering a guilty verdict, the jury clearly indicated that it

                                                o   be   credible   despite   any

                                                                              See

Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (stating that the

jury is free to believe all, part, or none of the testimony presented at trial).

      Cognizant of the standard of review announced by our Supreme Court

in Clay, supra, we cannot conclude that the trial court abused its discretion

in ruling that Mayne had failed to establish the sort of injustice that would

require a new trial. The record is devoid of any indication that the trial court

acted in an unreasonable or arbitrary manner. Nor has Mayne alleged that

the trial court acted with partiality, prejudice, bias, or ill will. Consequently,



      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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