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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                             Appellee

                        v.

    RAMEL M. MOSLEY

                             Appellant              No. 1058 MDA 2019


        Appeal from the Judgment of Sentence entered March 28, 2019
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No: CP-40-CR-0001631-2017


BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                            FILED JULY 08, 2020

        Appellant, Ramel M. Mosley, appeals from the judgment of sentence

imposed in the Court of Common Pleas of Luzerne County on March 28, 2019

following his conviction of possession with intent to deliver a controlled

substance (cocaine) (“PWID”) and other drug offenses. Appellant contends

the trial court erred by denying his motion to suppress, and challenges the

sufficiency and the weight of the evidence. Following review, we affirm.1

        As a result of events that occurred on January 6, 2017, Appellant was

arrested and charged with PWID, conspiracy, possession of a controlled


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1 The Commonwealth filed an Application for Enlargement of Time to file its
brief. The Application is hereby GRANTED and the Commonwealth’s brief is
accepted as filed on June 22, 2020.
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substance (cocaine), possession of a small amount of marijuana, and

possession of drug paraphernalia.2 He filed a motion to suppress, contending

the search and seizure were unlawful.

       A suppression hearing was conducted on May 11, 2018. At the hearing,

the Commonwealth presented the testimony of Police Officers James Conmy

and Jason Oliver of the Wilkes-Barre Police Department. At the conclusion of

Appellant’s suppression hearing, the trial court announced its Findings of Fact

and Conclusions of Law.

       Findings of fact, as announced by the court, indicated that Officers

Conmy and Oliver were on duty in a marked police car on January 6, 2017 at

approximately 7:30 p.m. As they drove on Butler Street, they passed a Ford

SUV traveling in the opposite direction.         After both officers observed an

inoperable brake light on the rear of the SUV, Officer Conmy turned the police

car around and followed the SUV. After the SUV made a right turn at a red

light at an intersection marked with a “no turn on red” sign, the officers

initiated a traffic stop.    Notes of Testimony (“N.T.”), Suppression Hearing,

5/11/18, at 32-33.3




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2 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, and 35 P.S. § 780-
113(a)(31), (a)(16), and (a)(30).

3For purposes of context, we have included some citations to the suppression
hearing transcript that reflect testimony offered by Officers Conmy and Oliver.

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      Officer Conmy identified the driver as Jettie Johnson (“Johnson”) and

the passenger as Appellant, Ramel Mosley. Id.

      As the officers approached the SUV, both detected the odor of marijuana

coming from the SUV. The officers ran the occupant information through their

computer system and learned that Johnson had a suspended driver’s license.

Id. at 34. The officers also noticed that the SUV’s inspection was expired.

Officer Conmy filled out a citation for the inspection violation, gave a warning

for the brake light, and informed Johnson that his license was suspended. Id.

at 13, 34. Because the vehicle was not legally parked, Officer Conmy offered

the option of having the SUV towed or having Appellant, who had a valid New

York license, drive the vehicle. Id. at 11-13. Johnson and Appellant opted

for the latter option. Meanwhile, both Johnson and Appellant indicated they

had earlier smoked marijuana. Id. at 13.

      Because Johnson and Appellant were going to get out of the SUV to

switch positions, Officer Conmy informed Johnson that the officers would

check them both for safety purposes when they got out of the vehicle. Id. at

13-14. During the pat-down search, the officers “uncovered various items.”

Id. at 34. As reflected in the transcript, those items included a wad of cash

in Johnson’s pants pocket, detected by Officer Conmy, and cash in Appellant’s

pocket, detected by Officer Oliver. Id. at 14, 29.

      When Appellant got out of the SUV, he left the passenger side door

open. Officer Conmy could see a white bag in the door’s storage compartment


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that was consistent with powder cocaine.         He seized that bag and a black

grocery bag next to it. Picking up the black bag, he determined, based on his

training and experience, it was consistent with crack cocaine. At that point,

Appellant and Johnson were taken into custody and a search of their persons

was conducted.        Johnson admitted he had a bag of marijuana in his

underwear. Appellant had a glass vial in his pocket that was later opened to

reveal marijuana.      There was another bag of marijuana between the front

passenger seat and the center console. Id. at 14-15.

       Another officer, Officer Holmes,4 arrived on the scene with his K-9

partner. The dog alerted Officer Holmes to the front passenger seat area of

the SUV. The vehicle was then towed. Johnson and Appellant were taken to

headquarters. Id. at 15-16.

       Conclusions of law, as announced by the court, included that the officers

“had a requisite suspicion and probable cause” to perform the traffic stop, id.

at 33; that “[t]he pat-down search was valid and lawful under the situation

for the officers’ safety.     Any items seized, therefore, on the person of the

individuals are admissible as evidence at trial,” id. at 34; and that “[t]he

seizure of the cocaine and crack/cocaine was lawful in that the items were

discovered in plain view in an area which Officer Conmy had a right to be in.”

Id.


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4In the trial transcript, the officer is identified as Officer Homza. N.T., Trial,
1/22/19, at 13, 67, 78.

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      The court concluded:

      [B]ased upon the findings of fact and conclusions of law, all of the
      items that were seized and taken into evidence by the Wilkes-
      Barre Police Department at said time were seized lawfully and
      were done not in violation of any Constitution[al] Rights or due
      process violations of the rights of [Appellant] under either the
      United States or Pennsylvania Constitutions, and, therefore, said
      items were lawfully seized and would be admissible at trial in this
      matter.

      Based upon that, the motion to suppress physical evidence filed
      by [Appellant] is hereby denied.

Id. at 35.

      Appellant was charged with PWID and related crimes, as set forth above.

Following denial of his motion to suppress, Appellant’s case proceeded to trial

on January 22, 2019. The Commonwealth again presented the testimony of

Officers Conmy and Oliver. The officers’ testimony at trial was broader than,

but consistent with, the testimony offered at the suppression hearing. The

Commonwealth presented an additional witness at trial, Officer Duffy, who

testified as an expert and rendered an opinion that the cocaine recovered from

the SUV was consistent with PWID rather than personal use.          N.T., Trial,

1/22/19, at 85-122.

      Following trial, a jury convicted Appellant of PWID, possession of a

controlled substance (cocaine), and possession of drug paraphernalia. The

jury acquitted Appellant on the conspiracy charge.       The trial court found

Appellant guilty of possession of a small amount of marijuana.       The court

ordered a pre-sentence investigation report and scheduled sentencing for


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March 28, 2019. At the sentencing hearing, Appellant presented a motion to

set aside the verdict as against the weight of the evidence. The court denied

the motion and sentenced Appellant to a term of 90 to 180 months’

incarceration for PWID. In addition, the court imposed a sentence of thirty

days’ probation for possession of a small amount of marijuana, concurrent

with the PWID sentence, and twelve months’ probation for possession of drug

paraphernalia, also concurrent with the PWID sentence.              Appellant’s

possession of a controlled substance conviction merged with PWID.

      After the trial court denied Appellant’s post-sentence motions, he filed

a notice of appeal to this Court. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant presents three issues for our consideration:

      A. Did the lower court err in denying [A]ppellant’s motion to
         suppress physical evidence as the stop, search, and seizure
         was not based on probable [cause] in violation of Article I
         Section 8 of the Pennsylvania Constitution and the 4th and 14th
         Amendments of the United States Constitution?

      B. Was the evidence presented at trial insufficient as a matter of
         law to find [Appellant] guilty beyond a reasonable doubt?

      C. Was the verdict against the weight of the evidence presented at trial?

Appellant’s Brief at 4.

      In his first issue, Appellant claims the court erred by denying his motion

to suppress. As this Court has explained:

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record

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      and whether the legal conclusions drawn from those facts are
      correct.    Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the suppression court’s factual findings are
      supported by the record, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. Where,
      as here, the appeal of the determination of the suppression court
      turns on allegations of legal error, the suppression court’s legal
      conclusions are not binding on an appellate court, whose duty it
      is to determine if the suppression court properly applied the law
      to the facts. Thus, the conclusions of law of the courts below are
      subject to our plenary review.

Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019)

(quotations and citations omitted).

      Having reviewed the transcript of the suppression hearing, we find the

court’s findings of fact announced at the conclusion of the hearing are

supported by the record.      N.T., Suppression Hearing, 5/11/18, at 32-35.

Therefore, we are bound by those findings. We further find the suppression

court properly applied the law to those facts.

      With respect to the initial traffic stop, both officers observed that a rear

brake light was inoperable. Further, the vehicle made a right hand turn on a

red light at an intersection where a right turn on red was not permitted.

      As this Court held in Commonwealth v. Harris, 176 A.3d 1009 (Pa

Super. 2019):

      “Traffic stops based on a reasonable suspicion: either of criminal
      activity or a violation of the Motor Vehicle Code under the




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        authority of Section 6308(b)[5] must serve a stated investigatory
        purpose.” Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa.
        Super. 2010) (en banc) (citation omitted). For a stop based on
        the observed violation of the Vehicle Code or otherwise non-
        investigable offense, an officer must have probable cause to make
        a constitutional vehicle stop. Feczko, 10 A.3d at 1291 (“Mere
        reasonable suspicion will not justify a vehicle stop when the
        driver’s detention cannot serve an investigatory purpose relevant
        to the suspected violation.”). Pennsylvania law makes clear that
        a police officer has probable cause to stop a motor vehicle
        if the officer observes a traffic code violation, even if it is a
        minor offense. Commonwealth v. Chase, 599 Pa. 80, 960
        A.2d 108 (2008).

Id. at 1019 (emphasis added).

        The court properly concluded that the officers had probable cause to

stop the SUV.      It was not necessary for the officers to investigate further

whether the brake light was out. Having observed the traffic code violation,

they had probable cause to make the stop. Commonwealth v. Salter, 121




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5   75 Pa.C.S.A. § 6308(b) (Authority of police officer) provides:

        Whenever a police officer is engaged in a systematic program of
        checking vehicles or drivers or has reasonable suspicion that a
        violation of this title is occurring or has occurred, he may stop a
        vehicle, upon request or signal, for the purpose of checking the
        vehicle’s registration, proof of financial responsibility, vehicle
        identification number or engine number or the driver’s license, or
        to secure such other information as the officer may reasonably
        believe to be necessary to enforce the provisions of this title.



Id.



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A.3d 987, 994 (Pa. Super. 2015). There is no basis to disturb the court’s

conclusion of law with respect to the initial stop.

      With regard to the search of Appellant’s person and the SUV, the

testimony revealed that Appellant was sitting in the front passenger seat of

the SUV. When Appellant got out of the vehicle, Officer Conmy observed a

white bag, consistent with powder cocaine, in plain sight in the storage

compartment of the passenger’s side door. Next to that bag was a black bag

that Officer Conmy determined, based on his training and experience, was

consistent with crack cocaine.

      As this Court recently reiterated:

      Generally, a warrant stating probable cause is required before a
      police officer may search for or seize evidence. Commonwealth
      v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012). However:

         the plain view doctrine provides that evidence in plain view
         of the police can be seized without a warrant, Coolidge v.
         New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d
         564 (1971), as modified by Horton v. California, 496 U.S.
         128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), and it was
         adopted by our Supreme Court in Commonwealth v.
         McCullum, 529 Pa. 117, 602 A.2d 313 (1992). The plain
         view doctrine applies if 1) police did not violate the Fourth
         Amendment during the course of their arrival at the location
         where they viewed the item in question; 2) the item was not
         obscured and could be seen plainly from that location; 3)
         the incriminating nature of the item was readily apparent;
         and 4) police had the lawful right to access the item.

      Id.

      “Courts have alternatively described the plain view doctrine in
      terms of a three-prong test”: The plain-view doctrine permits “the
      warrantless seizure of an object when: (1) an officer views the
      object from a lawful vantage point; (2) it is immediately apparent

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      to him that the object is incriminating; and (3) the officer has a
      lawful right of access to the object.” Commonwealth v. Luczki,
      212 A.3d 530, 547 (Pa. Super. 2019).              “There can be no
      reasonable expectation of privacy in an object that is in plain view.
      To judge whether the incriminating nature of an object was
      immediately apparent to the police officer, reviewing courts must
      consider the totality of the circumstances.” Id. “In viewing the
      totality of the circumstances, the officer’s training and experience
      should be considered.” Id.

Commonwealth v. Bumbarger, --- A.3d ---, 2020 PA Super 65, *7 (filed

March 16, 2020).

      Here, Appellant exited the SUV to exchange positions with Johnson and

left the SUV’s passenger side door open. Officer Conmy saw the cocaine in

plain sight in the storage compartment of the passenger side door. Officer

Conmy did not have to move any items to see the powder cocaine in plain

view. Based on his training and experience, Officer Conmy recognized the

contents of the bag as cocaine. As the court observed, “Probable cause exists

where the facts and circumstances within the officer’s knowledge are sufficient

to warrant a prudent individual in believing that an offense was committed

and that the defendant has committed it.” Trial Court Opinion, 10/3/19, at 7

(quoting Commonwealth v. Dennis, 612 A.2d 1014, 1015-16 (Pa. Super.

1992)).

      Moreover, both Officer Conmy and Officer Oliver detected the odor of

marijuana as they approached the SUV.         “[T]he odor of marijuana alone,

particularly in a moving vehicle, is sufficient to support at least reasonable

suspicion, if not the more stringent requirement of probable cause.”          In


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Interest of A.A., 195 A.3d 896, 904 (Pa. 2018) (citing, inter alia, United

States v. Ventresca, 380 U.S. 102, 111 (1965) (odor may be sufficient to

establish probable cause)).

       The suppression court’s finding of probable cause to search Appellant

and the vehicle is supported by the record.6 We find no error in the court’s

denial of Appellant’s suppression motion. Appellant’s first issue fails.

       In his second issue, Appellant contends the evidence at trial was

insufficient to support his conviction of PWID (cocaine).

       The standard we apply in reviewing the sufficiency of the evidence
       is whether viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the fact-finder to find every element of the crime beyond
       a reasonable doubt. In applying the above test, we may not weigh
       the evidence and substitute our judgment for the fact-finder. In
       addition, we note that the facts and circumstances established by
       the Commonwealth need not preclude every possibility of
       innocence. Any doubts regarding a defendant’s guilt may be
       resolved by the fact-finder unless the evidence is so weak and
       inconclusive that as a matter of law no probability of fact may be
____________________________________________


6 Appellant notes that our Supreme Court has granted a petition for allowance
of appeal in Commonwealth v. Alexander, No. 151 EAL 2019 (Pa. filed
September 24, 2019), to consider whether its decision in Commonwealth v.
Gary, 91 A.3d 102 (Pa. 2014), should be overruled or limited with respect to
warrantless vehicle searches. Appellant’s Brief at 22-24. Appellant suggests
that overruling or limiting Gary would entitle Appellant to relief in light of the
absence of a warrant to search the SUV. Alexander is inapposite. In
Alexander, an officer took a key from Alexander’s key ring and used it to
open and search a locked metal box found in the car. Alexander is seeking to
reinstate the general warrant requirement of Article I, Section 8. However, as
outlined in Gary, exceptions to the warrant requirement have been recognized
under Article I, Section 8, based on individual factual situations, including plain
view observations.      Here, the cocaine was detected by a plain view
observation. Regardless of the outcome in Alexander, disposition of the issue
as presented in that case does not offer a path to relief for Appellant.

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      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016) (quoting

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)

(additional citations omitted)).

      As this Court recognized in Roberts:

      To sustain a conviction for PWID, “the Commonwealth must prove
      both the possession of the controlled substance and the intent to
      deliver the controlled substance.” Commonwealth v. Lee, 956
      A.2d 1024, 1028 (Pa. Super. 2008) (citations omitted). It is well
      settled that “[i]n narcotics possession cases, the Commonwealth
      may meet its burden by showing actual, constructive, or joint
      constructive possession of the contraband.” Commonwealth v.
      Vargas, 108 A.3d 858, 868 (Pa. Super. 2014) (en banc)
      (quotation and quotation marks omitted). Here, the police did not
      discover the controlled substances on Appellant’s person, and
      thus, we must determine whether the Commonwealth sufficiently
      established that Appellant had constructive possession of the
      controlled substances.

Id.

      Appellant contends the Commonwealth failed to prove he constructively

possessed the cocaine discovered in the SUV.          This Court has defined

constructive possession as

      a legal fiction, a pragmatic construct to deal with the realities of
      criminal law enforcement. Constructive possession is an inference
      arising from a set of facts that possession of the contraband was
      more likely than not. We have defined constructive possession as
      “conscious dominion.”      We subsequently defined “conscious

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        dominion” as “the power to control the contraband and the intent
        to exercise that control.” To aid application, we have held that
        constructive possession may be established by the totality of the
        circumstances.

Id. at 767-78 (quoting Commonwealth v. Brown. 48 A.3d 426, 420 (Pa.

Super. 2012)).

        An “intent to maintain a conscious dominion may be inferred from
        the totality of the circumstances.”        [Commonwealth v.
        Macolino, 469 A.2d 132, 134 (Pa. 1983)]. . . . Additionally, our
        Court has recognized that “[c]onstructive possession may be
        found in one or more actors where the item in issue is in an area
        of joint control and equal access.” [Commonwealth v. Valette,
        613 A.2d 548, 550 (Pa. 1992)].

Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011) (footnote

omitted). “The Commonwealth may sustain its burden by means of wholly

circumstantial evidence, and we must evaluate the entire trial record and

consider all evidence received against the defendant.” Roberts, 133 A.3d at

767 (citation omitted).

        As noted, Officers Conmy and Oliver testified at trial and offered

testimony consistent with the testimony from the suppression hearing that

was summarized above.7           That testimony was sufficient to establish that

Appellant had conscious dominion over the drugs located in the passenger

door storage compartment of the SUV. See Roberts, 133 A.3d at 767. In

addition, Officer Daniel Duffy offered expert testimony, including his opinion




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7   See N.T., Trial, 1/22/19, at 3-35 (Oliver) and 35-80 (Conmy).

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that the drugs were consistent with possession with intent to deliver rather

than personal use. N.T., Trial, 1/22/19, at 110-11.

      The trial court concluded:

      Having presided over this trial, we do not hesitate to conclude that
      the evidence was sufficient to convict the Appellant of possession
      with intent to deliver cocaine. The trial testimony included
      evidence that the Appellant had more than $2,500.00 on his
      person at the time of the arrest, and that a canine officer trained
      to detect the presence of narcotics indicated the presence of same
      in the area where Appellant was seated within the vehicle. A
      quantity of what was later proven to be cocaine was observed by
      law enforcement in plain view in the passenger door pocket within
      the Appellant’s reach. An additional quantity of crack cocaine was
      located next to the bag of powder cocaine. The officers did not
      locate any drug paraphernalia inside the vehicle which may have
      suggested the occupants possessed the drug for their own use.

      Officer Daniel Duffy of the Wilkes-Barre City police department
      testified as an expert in narcotics identification and drug
      trafficking. Officer Duffy’s expert report entered in to evidence []
      concluded that the circumstances of the Appellant’s arrest were
      more consistent with possession with intent to deliver cocaine.
      Having conducted our own independent review of the totality of
      the evidence in the light most favorable to the verdict winner, for
      all the aforementioned reasons, we find that there is ample
      evidence that the Appellant both possessed cocaine, but also that
      he intended to deliver it.

Trial Court Opinion, 10/3/19, at 9-10 (references to notes of testimony

omitted).

      Viewing all the evidence admitted at trial in the light most favorable to

the Commonwealth as verdict winner, we find there was sufficient evidence to

enable the fact-finder to find, beyond a reasonable doubt, that Appellant

possessed cocaine and did so with the intent to deliver. Therefore, Appellant’s

sufficiency challenge fails.

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     In his third issue, Appellant argues that the verdict was against the

weight of the evidence.    In Commonwealth v. Clay, 64 A.3d 1049 (Pa.

2013), our Supreme Court instructed:

     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, 560 Pa. 308, 319, 744
     A.2d 745, 751–52 (2000); Commonwealth v. Brown, 538 Pa.
     410, 435, 648 A.2d 1177, 1189 (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, 560 Pa. at 319–20, 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. at 320, 744 A.2d at 752 (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, 538 Pa. at 435, 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.
        Farquharson, 467 Pa. 50, 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, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis added).

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      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.

Id. at 1054-55.

      As the trial court determined, Appellant’s challenge rests upon his

assertion that there was no fingerprint or DNA evidence connecting Appellant

to the cocaine, or evidence that he was observed holding or secreting the

cocaine.    Essentially, Appellant claimed Johnson was the guilty party.

“Appellant’s counsel made these arguments at trial. The jurors, exercising

their prerogative as finder of fact, apparently chose not to credit them.” Trial

Court Opinion, 10/3/19, at 11.     The trial court’s sense of justice was not

shocked by the verdict, nor is ours. We find no abuse of discretion in the trial

court’s denial of Appellant’s motion for a new trial based on weight of the

evidence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/08/2020




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