J-S49039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

EDWARD VANCHEZ CHESNEY,

                            Appellant                 No. 77 MDA 2015


         Appeal from the Judgment of Sentence of December 11, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-MD-0002082-2014


BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 20, 2015

        Appellant, Edward Vanchez Chesney, appeals from the judgment of

sentence entered on December 11, 2014, following his bench trial conviction

for indirect criminal contempt1 based upon a finding Appellant violated a

final Protection from Abuse (PFA) order. We affirm.

        We briefly summarize the facts and procedural history of this case as

follows. On May 7, 2014, the trial court entered the final PFA order at issue

upon mutual agreement of Appellant and the victim.           The PFA order

prohibited contact with the victim and excluded Appellant from her

residence.     On November 12, 2014, Appellant appeared at the victim’s

residence and refused to leave. The victim left the scene and Appellant then

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1
    23 Pa.C.S.A. § 6113.
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made numerous telephone calls to her.            On December 11, 2014, the trial

court held a bench trial and convicted Appellant of indirect criminal

contempt. The trial court sentenced Appellant to 90 days of probation and a

fine of $300.00. This timely appeal resulted.2

       On appeal, Appellant presents the following issue for our review:

         The guilty verdict of [i]ndirect [c]riminal [c]ontempt is
         contrary to the weight of the evidence in that the testimony
         of the sole Commonwealth witness was not credible as the
         witness testified that on a prior occasion she filed a petition
         for a [PFA] [O]rder alleging misconduct by Appellant and
         subsequently recanted all of the allegations set forth in the
         petition.

Appellant’s Brief at 4.

       Appellant essentially argues that the trial court erred in crediting the

victim’s testimony over the testimony of the defense witnesses.             More

specifically, Appellant argues that the victim filed a prior PFA petition against

Appellant in November 2012, but later recanted in a January 2013 sworn

affidavit.   Id. at 19-20.        Appellant contends that the prior recantation

rendered the victim not credible in the present case.          Id. at 20.   Thus,

Appellant argues “[t]he trial court abused its discretion in giving [the

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2
   Appellant filed a motion for reconsideration on December 18, 2014. The
trial court denied relief by order entered on December 22, 2014. On January
7, 2015, Appellant filed a notice of appeal. The trial court ordered Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) on January 15, 2015. Appellant complied timely. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 23,
2015.



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victim’s] testimony more weight than that of” Appellant and his girlfriend.

Id. at 21.

      Our Supreme Court summarized our standard of review as follows:

        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. 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. 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.
        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.

        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. 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. 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.

        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

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        unfettered. In describing the limits of a trial court's
        discretion, [our Supreme Court has] 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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (internal

citations and quotations omitted) (emphasis in original).

      Here, the trial court determined:

        The victim testified, [Appellant] testified, [Appellant’s] prior
        state parole officer testified, and [Appellant’s] long-time
        girlfriend testified. [The trial court] weighed all of the
        testimony and judged the credibility of each witness based
        not only on his or her words but tone and body language.
        [The trial court] found the victim’s testimony credible, and
        [Appellant’s] testimony not credible.

Trial Court Opinion, 2/23/2015, at 2. The trial court was “satisfied that [the

victim] gave a credible answer to explain her previous recant[ation]” of

allegations of past abuse. Id. at 3. More specifically, the trial court believed

that the victim retracted the prior allegations of domestic abuse “under

some pressure from [Appellant] and [Appellant’s] family to do so[.]” Id.

      Based upon our standard of review, we discern no abuse of discretion

in the trial court’s refusal to grant a new trial on Appellant’s indirect criminal


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contempt conviction.          The victim offered testimony that established

Appellant violated the terms of a final PFA order that was in effect during the

relevant time period.         In rendering its verdict, the trial court made a

credibility determination in favor of the victim after weighing all the

evidence.      Here, the victim testified that she had previously filed a PFA

petition against Appellant in 2012, but recanted because Appellant promised

to “rectify the situation” and because the victim “felt badly.”            N.T.,

12/11/2014, at 18. The victim also received a threatening phone call from

Appellant’s brother.    Id.    Thus, the victim recanted in a sworn affidavit in

2013.    Id.    The victim testified, however, that the original allegations of

abuse in the 2012 PFA petition were truthful. Id. The trial court was free to

believe the victim over Appellant. The trial court also credited her testimony

that Appellant came to her residence, would not leave, and then called her

repeatedly afterwards in violation of the final PFA order at issue. The verdict

was not the result of partiality, prejudice, bias or ill-will against Appellant.

Accordingly, Appellant’s sole issue lacks merit.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2015


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