J-S02007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT JOHNSON

                            Appellant                  No. 2627 EDA 2013


             Appeal from the Judgment of Sentence April 29, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013968-2011


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:

FILED FEBRUARY 17, 2015

        Appellant, Robert Johnson, appeals from the April 29, 2013 judgment

of sentence of one year of probation, imposed after the trial court found him

guilty of criminal trespass.1 After careful review, we affirm.

        The trial court has set forth the relevant factual and procedural history

of this case as follows.

                    On August 7, 2011 at around 10:00 a.m.,
              Nicholas Brosko, the owner of Essington Avenue Auto
              Parts, located at 6770 Essington Avenue in the city
              of    Philadelphia,    observed   Robert     Johnson,
              [Appellant], inside the easement to his yard, which is
              a fenced area.        When Mr. Brosko first saw
              [Appellant], he was 600 feet away. [Appellant] was
____________________________________________


1
    18 Pa.C.S.A. § 3503(a)(1)(i).
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          trotting towards Mr. Brosko, with a part in his hand.
          Mr. Brosko dialed 911 and reported that there was a
          guy in the yard and that he thought he was getting
          robbed.

                While Mr. Brosko was on the phone with 911,
          [Appellant]    continued    to   jog   towards  him.
          [Appellant] came within 15 feet of Mr. Brosko and
          then climbed the fence, which was six to seven feet
          high.    Mr. Brosko noticed an older model, Ford
          pickup truck outside the property, on the other side
          of the fence. He walked to the back of the truck and
          read the plate number to 911. He also gave 911 a
          description of [Appellant], who climbed into the
          driver side of the truck and then drove away.

                Mr. Brosko did not know [Appellant]. He never
          gave [Appellant] permission to enter his property on
          August 7, 2011. Mr. Brosko eventually did a photo
          array and he was able to pick [Appellant] out of the
          photo array.

                                   …

                 [Appellant] acknowledged that he was on the
          6700 Block of Essington Avenue[] on August 7,
          2011, at approximately 10:30 a.m. He testified that
          he was at another auto salvage yard to find tires for
          his truck. He stated that while he was seated in his
          parked vehicle, a 1986 pickup truck, he saw Mr.
          Brosko standing at the rear of the truck.

                 [Appellant] denied being inside the fence at
          6770 Essington Avenue, jogging towards the fence
          and/or climbing the fence. [Appellant] testified that
          he was diagnosed with [Chronic Obstructive
          Pulmonary Disease] COPD which made it difficult for
          him to run and prevented him from jumping over a
          six foot fence.

                                   …

               On April 29, 2012, [Appellant] requested and
          was granted a waiver of a jury trial []. [Appellant]

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              was found guilty of criminal trespass, 18 Pa.C.S.
              § 3503[,] and sentenced to one year of reporting
              probation. On May 6, 2013, [Appellant] filed a post-
              sentence motion, raising a weight of the evidence
              claim and seeking a new trial. [Appellant]’s post-
              sentence motion was denied by operation of law on
              September 3, 2013.

Trial Court Opinion, 8/1/14, at 1-3 (citations omitted).      Appellant filed his

timely notice of appeal on September 17, 2013. On October 29, 2013, the

trial court ordered Appellant to file a concise statement of errors complained

of on appeal within 30 days pursuant to Pennsylvania Rule of Appellate

Procedure 1925.        Appellant timely filed his Rule 1925(b) statement on

December 2, 2013, and the trial court authored a Rule 1925(a) opinion on

January 28, 2014.2         Thereafter, this Court granted Appellant’s petition to

remand in order to raise a supplemental issue in his Rule 1925(b) statement

and ordered the trial court to file a supplemental Rule 1925(a) opinion

following the filing of the supplemental Rule 1925(b) statement. Per Curiam

Order, 5/21/2014.         Appellant timely filed a supplemental Rule 1925(b)



____________________________________________


2
  We observe the 30th day for filing the statement fell on Thanksgiving,
November 28, 2013. When computing the timeliness of a filing, “[if] the last
day of any such period shall fall on Saturday or Sunday, or any day made a
legal holiday by the laws of this Commonwealth or of the United States, such
delay shall be omitted from the computation.” 1 Pa.C.S.A. § 1908. Because
the courts observed Thanksgiving and the following day, Friday, November
29, 2013, as holidays, the 30th day for Appellant to file his Rule 1925(b)
statement was on Monday, December 2, 2013. As a result, we deem his
Rule 1925(b) statement timely filed.



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statement on June 5, 2014, and the trial court filed a supplemental Rule

1925(a) opinion on August 1, 2014.

       On appeal, Appellant raises the following issue for our review.

              Did not the trial court err and abuse its discretion
              when it denied [] [A]ppellant’s motion to set aside
              the verdict as against the weight of the evidence,
              where [] [A]ppellant, who had a reputation in the
              community for being a truthful, peaceful and law-
              abiding person, testified that he suffered from COPD,
              a disease of the lungs which makes it difficult to
              breath [sic] and would prevent him from running and
              jumping over a seven foot fence, thereby making the
              complainant’s allegations highly improbable?

Appellant’s Brief at 3.

       We begin by acknowledging that “[a] true weight of the evidence

challenge concedes that sufficient evidence exists to sustain the verdict but

questions    which    evidence     is   to     be   believed.”   Commonwealth v.

Thompson, --- A.3d ---, 2014 WL 6948150, at *10 (Pa. Super. 2014)

(citation omitted).3 Our Supreme Court clarified that, “[a] motion for a new


____________________________________________


3
  Appellant was convicted of criminal trespass, which provides, in relevant
part, as follows.

              (a) Buildings and occupied structures.—

                     (1) A person commits an offense if, knowing
                     that he is not licensed or privileged to do so,
                     he:

                            (i) enters, gains entry by subterfuge or
                            surreptitiously remains in any building or
(Footnote Continued Next Page)


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trial alleging that the verdict was against the weight of the evidence is

addressed to the discretion of the trial court.”                     Commonwealth v.

Weathers,       95      A.3d      908,        910-911     (Pa.    Super.   2014),    citing

Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008). Therefore, on

appeal, the reviewing court “reviews the exercise of discretion, not the

underlying question whether the verdict is against the weight of the

evidence.” Id. Indeed, it is well established that it is for the factfinder to

determine     the      weight     given       to    the   evidence   produced   at   trial.

Commonwealth v. Ferguson, --- A.3d ---, 2015 WL 49438, at *4-5 (Pa.

Super. 2015) (citation omitted). Because it is the role of the factfinder to

weigh the evidence, an appellant seeking to challenge the weight of the

evidence carries a heavy burden.

             If the factfinder returns a guilty verdict, and if a
             criminal defendant then files a motion for a new trial
             on the basis that the verdict was against the weight
             of the evidence, a trial court is not to grant relief
             unless the verdict is so contrary to the evidence as
             to shock one’s sense of justice.

Id. We also highlight that “[a] new trial is not warranted because of a mere

conflict in the testimony and must have a stronger foundation than a

reassessment     of     the     credibility    of   witnesses.”      Commonwealth       v.

                       _______________________
(Footnote Continued)

                              occupied structure or separately secured
                              or occupied portion thereof[.]

18 Pa.C.S.A. § 3503(a)(1)(i).



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Gonzalez, --- A.3d ---, 2015 WL 252446, at *8 (Pa. Super. 2015). “[O]nly

where the facts and inferences disclose a palpable abuse of discretion will

the denial of a motion for a new trial based on the weight of the evidence be

upset on appeal.” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(emphasis in original; citation omitted).

       Instantly, we conclude Appellant is not entitled to relief based on his

claim that the trial court abused its discretion by denying his motion to set

aside the verdict as against the weight of the evidence. Appellant’s Brief at

9.   At trial, Brosko testified he viewed Appellant while Appellant was

standing inside Brosko’s fenced-in yard, Appellant jogged toward Brosko,

and when Appellant was approximately 15 feet away from Brosko, Appellant

climbed over the fence. N.T., 4/29/13, at 12-13. Appellant testified on his

own behalf that he was never inside Brosko’s property, that he has COPD

and takes eight different medications, that it is difficult for him to run, and

that he could never “jump” over a seven-foot fence. Id. at 23-24. No other

witnesses were called to testify before the trial court.4




____________________________________________


4
   There were two stipulations by and between counsel regarding the
testimony of witnesses. The first stipulation was that if the Commonwealth
called the detective on the case to testify, he would testify the vehicle
identified by Brosko in the 911 call was registered to Appellant. N.T.,
4/29/13, at 17. The second stipulation was to the testimony of a character
witness for Appellant, who would testify Appellant had a reputation in the
community as honest, peaceful, and law-abiding. Id. at 20.



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      The crux of Appellant’s argument is that the complainant’s testimony

was “highly improbable as [Appellant] suffered from a debilitating illness

called Chronic Obstructive Pulmonary Disease or COPD.” Appellant’s Brief at

9.   He further argues that his own testimony that “[Appellant] was

diagnosed with COPD, took eight different medications for this condition and

walked with the assistance of a cane [] was not given due consideration,

even though [Appellant] had a reputation in the community for being a

truthful, honest, and law-abiding person.” Id.

      The trial court explained its ruling as follows.

            Notwithstanding [Appellant]’s assertion to the
            contrary, his testimony that he suffered COPD, …
            does not, in and of itself, discredit Mr. Brosko’s
            testimony that he observed Appellant trotting and
            climbing over the fence.     Nor does [Appellant]’s
            testimony, in and of itself, render the verdict
            contrary to the weight of the evidence. [Appellant]
            did not present any medical evidence and/or other
            evidence to support his assertion that he suffered
            COPD.
                                     …

            The verdict rendered evinces that Mr. Brosko’s
            testimony was accepted as credible and that
            [Appellant]’s testimony was rejected as not credible.
            [Appellant]’s testimony that he had COPD is self-
            serving and without other support in the record.
            Moreover, it is refuted by the credible testimony of
            Mr. Brosko. Under the circumstances of this case,
            the [trial court]’s rejection of [Appellant]’s testimony
            does not shock one’s sense of justice.

Trial Court Opinion, 8/1/14, at 6-7.




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      We conclude the trial court properly exercised its discretion in denying

Appellant’s motion for a new trial based on the weight of the evidence. See

Weathers, supra. It is clear the facts and inferences of the instant case do

not demonstrate a palpable abuse of discretion by the trial court when it

refused to grant a new trial based on a reassessment of the credibility of the

witnesses at trial.   See Morales, supra; Gonzalez, supra.           Accordingly,

the trial court’s April 29, 2013 judgment of sentence is affirmed.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2015




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