J-S47021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

ANDRE CHANEY,

                         Appellant                 No. 2201 EDA 2013


          Appeal from the Judgment of Sentence of June 28, 2013
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012656-2011


BEFORE: MUNDY, OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                     FILED SEPTEMBER 22, 2014

      Appellant, Andre Chaney, appeals from the judgment of sentence

entered on June 28, 2013. We affirm.

      The trial court has ably summarized the underlying facts of this case.

As the trial court explained:

        On September 26, 2011, at approximately 12:10 a.m.,

        the door of his [Philadelphia] apartment [building]. . . .
        Upon opening the door, three individuals          Appellant,
                        -defendant Mustafa Hil
        and an unidentified male wearing a ski mask          pushed
        through into the entrance of the apartment building and
        closed the door behind them. [The victim] knew [Appellant]
        and Hill because they regularly bought loose cigarettes from
        hi
        pushed him back toward the doorway of his apartment

        [Appellant and the victim] struggled in the apartment
        vestibule and after Hill had blocked [the victim] from
        getting to his door, Hill stood at the front door of the
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        apartment building as a lookout.      The unidentified male,

        apartment, as [Appellant] continued to restrain [the victim]
        in the hallway by squeezing his neck. After a few minutes,



        building. [The victim] went inside [his apartment] and
        found his apartment disheveled with $800[.00] missing
        from the drawer of his nightstand.

        [Philadelphia Police] Officer [Michael] Gwynn was the first to
        respond to the radio call for a robbery in progress and, after
        speaking with [the victim], the officer gave out a flash
        description of the males to the officers in the area.
        [Philadelphia Police] Detective [Frank] Mullen and
        [Philadelphia Police] Officer [Anthony] Coward arrived at the
        apartment building and[,] shortly thereafter[, the victim]
        indicated that he saw the males and pointed to [] two men
        [walking] northbound up 60th Street. The officers began to
        cross the street toward the males and, upon seeing the
        officers, the males ran into a set of houses, located at 1211
        and 1213 North 60th Street. The officers knocked on the
        door of 1211 North 60th Street and were permitted inside,
        but the search provided negative results. The officers then
        knocked on the door of 1213 North 60th Street, where the
        second floor resident informed them that the first floor
        resident was unknown, but that a girl lived on the third
        floor.    The officers proceeded to the third floor and
        [Appellant] opened the door and informed the officers that
        he was in his apartment with his girlfriend and another
        friend. [Appellant] was brought outside and [the victim]
        identified him as one of the males who had [robbed him].
        The officers returned upstairs and found Hill lying [on] the
        [floor] of a closet[. The officers brought Hill] outside, and
        [the victim] identified [Hill] as [the second of the three
        males who had robbed him].

Trial Court Opinion, 12/5/13, at 3-4.



conspiracy, burglary, criminal trespass, carrying a firearm without a license,



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carrying a firearm in public in Philadelphia, and possessing instruments of

crime.1 The trial court then found Appellant guilty of possession of a firearm

by a prohibited person.2 On November 20, 2012, the trial court sentenced

Appellant to serve an aggregate term of six-and-a-half to 20 years in prison

for the above convictions.

        Appellant filed a timely post-sentence motion and claimed that his

convictions were against the weight of the evidence and that his sentence

was manifestly excessive. The trial court held                               -




                                                                            o

reconsider the sentence.         On June 28, 2013, the trial court resentenced

Appellant to serve an aggregate term of five-and-a-half to 20 years in

prison.

        Appellant filed a timely notice of appeal from his judgment of

sentence. Appellant now raises the following claim to this Court:

          Did not the trial court err and abuse its discretion in denying


          testimony and prior statements to [the] police were
          inconsistent, contradictory, and  totally unreliable,
____________________________________________


1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 3502(a), 3503(a)(1)(i), 6106(a)(1),
6108, and 907(a), respectively.
2
    18 Pa.C.S.A. § 6105(a)(1).



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J-S47021-14


        particularly concerning the critical issue of his identification
        of Appellant?



     Our Supreme Court has held:

        a verdict is against the weight of the evidence only when
        the

        the evidence claim 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 court is to determine that
        notwithstanding all the evidence, 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. A motion for a
        new trial on the grounds that the verdict is contrary to the
        weight of the evidence concedes that there is sufficient
        evidence to sustain the verdict; thus the trial court is under
        no obligation to view the evidence in the light most
        favorable to the verdict winner.

        Significantly, in a challenge to the weight of the evidence,
        the function of an appellate court on appeal is to review the

        the record, rather than to consider de novo the underlying
        question of the weight of the evidence. In determining
        whether this standard has been met, appellate review is

        exercised, and relief will only be granted where the facts
        and inferences of record disclose a palpable abuse of

        a motion for a new trial based on a weight of the evidence
        claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

q                                     An abuse of discretion is not merely an

error of judgment, but is rather the overriding or misapplication of the law,

or the exercise of judgment that is manifestly unreasonable, or the result of


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J-S47021-14



bias, prejudice, ill-wil

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (internal

quotations and citations omitted).

                               -sentence motion, Appellant claimed that the

                              he weight of the evidence because:     1) during

trial, the victim testified that, at the time of the robbery, he was familiar

with the names and voices of Appellant and Hill       however, the victim did

not testify to this fact at the preliminary hearing and the police report

contains no such statement; 2) during trial, the victim testified that he could

see the faces of the robbers     however, the victim originally informed the

police that the robbers were all wearing masks; and, 3) during trial, the

victim testified that the robbers all carried firearms      however, another

witness told the police that she did not see the robbers carrying firearms.

                  -Sentence Motion, 12/4/12, at 1-2. Appellant claimed that

the above discrepancies showed that the v



weight of the evidence. Id.

evidence claim.

                                                                  enial of his

weight claim by reiterating the above contentions. However, it is clear that



of the evidence challenge. Certainly, the jury was well aware of the alleged




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testimony was truthful and accurate with respect to the fact that, on

September 26, 2011, Appellant robbed the victim and that, during the

robbery, Appellant employed a firearm.



fact-finder.   Moreover, we conclude that the trial court did not abuse its

discretion when it concluded that

                                                  Rivera, 983 A.2d at 1225.

Therefore, we conclude that the trial court did not abuse its discretion when



      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2014




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