J-S16010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                              :                  PENNSYLVANIA
                              :
          v.                  :
                              :
                              :
 KENNETH G. MURPHY, JR.       :
                              :
               Appellant      :             No. 1656 MDA 2017
                              :

           Appeal from the Judgment of Sentence June 7, 2017
   In the Court of Common Pleas of Lebanon County Criminal Division at
                     No(s): CP-38-CR-0001022-2016,
                         CP-38-CR-0002241-2015


BEFORE:    BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY BOWES, J.:                               FILED MAY 04, 2018

      Kenneth Murphy appeals from the judgment of a sentence of two and

one-half years to ten years imprisonment at docket number CP-38-CR-2241-

2015, and a consecutive five to ten years imprisonment at docket number CP-

38-CR-1022-2016. The sentences were imposed following his conviction by a

jury of burglary, criminal trespass, two counts of theft by unlawful taking,

criminal mischief, and criminal solicitation to commit aggravated assault and

simple assault. After careful review, we affirm.

      The facts presented at trial are as follows. Co-conspirator Jordan Smith

testified that he and Appellant planned and committed a burglary of Smith’s

coworkers’ apartment on July 10, 2015. Since Smith worked with the intended

victims, he knew their schedules. The plan was to burglarize the apartment

when its occupants were not home.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      In furtherance of the plan, Smith told his employer that he had to leave

for an orthodontist appointment. Instead, he left work early around 6:30 p.m.

and drove from Annville, Pennsylvania to Hershey, Pennsylvania to pick up

Appellant, a round trip that took approximately fifty minutes.      Upon their

return to Annville, the duo burglarized the apartment, stealing, inter alia,

laptops, a phone, and a gun. They then returned to Hershey, stopping at a

Walmart along the way to convert stolen change into bills. Smith returned to

work after 8:00 p.m. The crime took approximately ninety to 105 minutes to

complete.

      After the burglary was discovered, the manager at Smith’s workplace,

Jesse Macknosky, suspected him, and asked him at different times if he

robbed his coworkers. Smith eventually admitted the crime to Mr. Macknosky.

Mr. Macknosky asked Smith to return the stolen goods, and Smith complied,

turning over the stolen laptops and phone to him in a Walmart parking lot.

Mr. Macknosky asked if Smith would return the stolen gun, and Smith

“promised to get it back.” N.T. Trial, 7/17/17, at 41.

      Smith testified that he and his girlfriend, Ms. Jordan Miller, went to his

sister Emily Bernard’s house.     Emily was also Appellant’s girlfriend, and

Appellant was there. Smith asked him for the stolen gun. Appellant retrieved

a gun from a flowerpot, wiped it off, and told Smith to keep him out of it.

When Smith attempted to return the gun to Mr. Macknosky, he was arrested.

      After his arrest, Smith voluntarily gave a statement to Officer Jarret

Dominicis admitting his commission of the burglary.      However, he did not

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implicate Appellant for fear that Appellant would hurt his daughter.       When

Smith’s mother visited him in jail, however, he told her that Appellant had

committed the robbery with him, and those conversations were recorded and

played at Appellant’s trial. In addition, the jury heard recorded telephone calls

Smith made to his girlfriend, Ms. Miller, from prison, which implicated

Appellant. After Smith was released on bail, he returned to the police station

and gave Officer Dominicis a second written statement in which he detailed

Appellant’s role in the burglary. Smith testified that he did not receive any

promises in exchange for his testimony against Appellant.

      The Commonwealth also offered the testimony of Warren Mayo. Mayo

and Appellant met while in the Lebanon County Jail. He stated that Appellant

told him about the charges against him and solicited him multiple times, in

exchange for payment, to hurt Smith and Ms. Miller to prevent them from

testifying against him. Mayo testified that Appellant gave him a sheet of paper

containing the names and addresses of his intended victims. Mayo identified

the letters he sent to Officer Dominicis and the district attorney informing

them that Appellant had solicited him to harm the witnesses against him. The

Commonwealth addressed Mayo’s lengthy criminal history, which included

convictions for forgery, false reports, and false identification to law

enforcement. Mayo testified that he received no promises in return for his

testimony, and that although he had written several letters to the district

attorney’s office, they went unanswered. His probation officer and attorney

also contacted the office, but to no avail.

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      Trooper Norbert Brennan testified that he was asked by the district

attorney’s office to commence an investigation based on the letters it received

from Mayo. In connection with the investigation, he interviewed Appellant.

Before he could tell Appellant why he was there, Appellant told the trooper

that he knew why he was there: because “he supposedly put $200 to hurt

someone.” N.T. Trial, 7/17/17, at 227. During the course of the interview,

Trooper Brennan asked Appellant how Mayo knew the addresses of Jordan

Smith and Ms. Miller.     Appellant replied that Mayo had that information

because he showed Mayo the affidavit of probable cause. Trooper Brennan

testified at trial that the affidavit of probable cause did not contain Smith or

Ms. Miller’s addresses.

      At trial, Emily Bernard supplied an alibi for Appellant on the night of the

burglary.   She testified that, on that date, she returned home from work

between 6:15-6:20 p.m., and Appellant was sitting on the couch. After briefly

speaking with Appellant, Ms. Bernard showered for about forty-five minutes,

and she and Appellant left together to drive to her mother’s house in

Jonestown to pick up her mail, which is about forty-five minutes away. Then,

they went to see Shawn Light in Lickdale, but he was not home.                At

approximately 10:00 p.m., they went to Wendy’s, and then they stopped at

Turkey Hill to buy energy drinks. Ms. Bernard maintained that Appellant was

with her the entire night of the burglary.

      A jury convicted Appellant on all counts. The trial court imposed the

aforementioned sentence on June 7, 2017.         Appellant filed a timely post-

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sentence motion for a new trial alleging that the jury’s verdict was against the

weight of the evidence. The trial court denied Appellant’s motion, finding that

the decision rendered by the jury did not shock the court’s sense of justice.

The trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal. Appellant complied, and the trial court

authored its Pa.R.A.P. 1925(a) opinion.

   Appellant raises two issues for our review:

   I.    Whether the Trial Court erred in denying Appellant’s Post
         Sentence Motion challenging the weight of the evidence as the
         verdict issued was rendered unreliable, tainted, questionable,
         and contrary to the weight of the evidence by Mr. Jordan
         Smith’s testimony, where (a) co-defendant Mr. Smith was the
         only eyewitness to the alleged burglary; (b) Mr. Smith’s
         testimony was the product of an admitted liar; and (c) Mr.
         Smith’s testimony was purely self-serving and given in the
         hopes of receiving a favorable treatment from the
         Commonwealth in exchange for his helpful testimony against
         Defendant Murphy and, further, in the hopes of not being
         prosecuted for either his false statements to the police in his
         written statement made under penalty of perjury or for his
         destruction of evidence prior to his arrest?

   II.   Whether the Trial Court erred in denying Appellant’s Post
         Sentence Motion challenging the weight of the evidence as the
         verdict issued was rendered unreliable, tainted questionable,
         and contrary to the weight of the evidence by Mr. Warren
         Mayo’s testimony, where (a) Mr. Mayo was the only eyewitness
         to the alleged criminal solicitation charges; (b) Mr. Mayo’s
         testimony was the product of an admitted liar with a criminal
         history spanning four counties and more than three decades,
         consisting almost entirely of drug offenses and crimen falsi
         offenses; (c) Mr. Mayo’s testimony was entirety self-serving
         and given in response to promises made by law enforcement
         and the Commonwealth that aid would be given on their part
         to see Mr. Mayo into a desirable treatment program in Dauphin



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         County, and (d) Mr. Mayo’s trial testimony was replete with
         inconsistencies and utterly without support or proof?

Appellant’s brief at 5.

      Appellant’s claims on appeal implicate the weight of the evidence. A

weight of the evidence claim:

      concedes that sufficient evidence exists to sustain the verdict but
      questions which evidence is to be believed; for that reason the
      trial court ruling on a new trial motion, need not view the evidence
      in the light most favorable to the verdict winner, and may instead
      use its discretion in concluding whether the verdict was against
      the weight of the evidence.

Commonwealth v. Miller, 172 A.3d 632, 643 (Pa.Super. 2017).

      Furthermore, a new trial should not be granted on weight of the

evidence grounds “because of a mere conflict in testimony or because the

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

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).               Our Supreme

Court held further in Clay,

      Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of greater
      weight 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.

Clay, supra at 1055 (internal citations and quotation marks omitted).

      In conducting a weight of the evidence review, “we do not actually

examine the underlying question; instead, we examine the trial court’s

exercise in resolving the challenge . . . [because] the trial judge heard and

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saw the evidence presented.” Commonwealth v. Leatherby, 116 A.3d 73,

92 (Pa.Super. 2015). This court’s abuse of discretion standard states that

“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.”   Clay, supra at 1055, citing

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000).

      In support of his position that the verdict was against the weight of the

evidence, Appellant contends that co-conspirator Jordan Smith is an “admitted

liar” for submitting differing statements to the police about how the crime was

committed, and for describing the crime on a timeline that did not fit squarely

within the timeline alleged in his police statement. Appellant’s brief at 13.

Appellant labels Warren Mayo a deceitful liar and career criminal who cannot

be trusted, as evidenced by his crimen falsi convictions. Appellant argues that

both witnesses testified because they expected favorable treatment from the

Commonwealth with regard to other charges they face.

      The law is well-settled that the credibility of witnesses is a matter for

the fact-finder, and “[t]he jury is free to believe all, part, or none of the

evidence.” Commonwealth v. Houser, 18 A.3d 1128, 1136 (Pa. 2011). In

rejecting Appellant’s claim that the verdict was against the weight of the

evidence, the trial court noted that the jury heard about Smith’s involvement

in the burglary, his pending sentence, and his testimony that the


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Commonwealth had not offered him anything in return for his testimony. Trial

Court Opinion (Post-Sentence Motions), 10/4/17, at 7. Nonetheless, the jury

credited Smith’s account, as was its prerogative. Similarly, Mayo’s criminal

history and his relationship with Appellant in prison were placed before the

jury. Mayo testified that he hoped he would be rewarded for testifying. Id.

at 7.    Mayo’s testimony was also corroborated in part by Michael Lee Ott,

Captain of Security at the Lebanon County Correctional Facility. He confirmed

that Appellant and Mayo were housed in the same medium security block of

that facility from October 23, 2015 to December 25, 2015. The jury found

Mayo’s testimony persuasive.

        The court concluded, “the jury was able to weigh all the information that

Defendant mentioned in his Post-Sentence Motion before rendering their

verdict, and there is nothing to suggest that the jury ignored any relevant

testimony and/or information in reaching their verdict.” Id. Moreover, based

on the evidence presented, the trial court found that “the verdict did not shock

its sense of justice.” Id. at 8.

        We find no abuse of discretion on the part of the trial court.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



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Date: 5/4/2018




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