J-S28027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WESTON ROBERT GREEN, JR.                   :
                                               :
                       Appellant               :   No. 168 MDA 2019

       Appeal from the Judgment of Sentence Entered November 21, 2018
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0001744-2016


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED SEPTEMBER 04, 2019

        Weston Robert Green, Jr., appeals from the judgment of sentence

entered following his jury convictions for one count of false imprisonment and

three counts of attempt to commit indecent assault.1 He challenges the weight

of the evidence. We affirm.

        The Commonwealth presented the following evidence at trial. The

victim, D.T., and Green were coworkers. N.T., Trial, 8/27/18, at 17-18. D.T.

testified that she worked with Green for four years and described one

encounter with him at their place of employment where he “came up behind

me and grabbed my hair and asked if I liked that.” Id. at 77. She testified




____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2903(a), 901(a), and 3126(a)(2), respectively.
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that her encounters with Green were “usually always sexual” and that it made

her “uncomfortable.” Id.

      On the day of the incident she drove to Walmart to cash her paycheck.

Id. at 74. Green was in line at the customer service desk. Id. at 75. Once

she cashed her paycheck, she returned to her vehicle where she saw Green

parked across from her. Id. at 80. Green walked over to her vehicle and

“asked if he could see my pussy and I told him no.” Id. She testified that

asking this type of question was not out of character for Green, so she changed

the subject to their plans for Memorial Day weekend. Id. at 80, 81. Green

changed the topic back to “sexual things” and “told [the victim] to get in the

back of my car so he could show me what a real man is.” Id. at 82. She told

Green she had to go and tried to close her door but Green prevented this by

“put[ting] his body in front of my door so I couldn’t shut it.” Id.

      Green grabbed her wrists, held them against her chest, and “tried

shoving his hands down my pants.” Id. at 82-83. She testified that she did

not drive away “because he was holding me down most of the time.” Id. at

98. He was able to reach inside the front of her pants but did not touch her

genital area. Id. at 83, 98. She tried to shove him away with her elbow, but

“he immediately came back and tried to like roll me into the back of my car,

but I like braced myself with my leg.” Id.

      Green then attempted to put his hands down her pants a second time

and also tried reaching down the front of her shirt but did not make contact

with her body. Id. at. 84, 98. While trying to touch the victim, Green said “he

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wanted to show me what a real man is and that he wanted to do like oral sex

on me.” Id. The victim continued to tell him no and began to yell for a fellow

coworker, Joe, who was pulling into the parking lot. Id. Joe began to walk

over to her vehicle and Green left. Id. She told Joe that Green tried to kiss

and touch her but did not go into detail about him putting his hands down her

pants or shirt. Id. at 85. She reported the assault approximately three weeks

later “because I worked with [Green] and his girlfriend and I just didn’t want

to create any drama, and I figured if I just kept my distance, that he would

just let it be.” Id. at 86.

       Trooper Lindsey Trace testified that he spoke with the victim a “couple

weeks” after the incident. Id. at 40. After speaking with the victim he

recovered surveillance video from Walmart.2 Id. at 26-27. He identified the

victim and Green in the surveillance video and testified to portions of the

video. Id. at 28-29. He testified that the video showed the victim getting into

her vehicle and five seconds later Green appearing by her vehicle. Id. at 37.

He also said that the victim told him that she spoke with Green for about

“[ten] or so or more minutes,” during which time Green said “more verbal or

dirty talk or sexual harassment type things.” Id. at 53. During a portion of the

video, he testified that Green “gets closer into the [victim’s] vehicle” and later

“leav[es] the area of the vehicle” moving “pretty quickly” to his vehicle. Id.

at 38-39, 55. Additionally, he testified that seconds passed between the time
____________________________________________


2The surveillance footage was included in the certified record, however, we
were unable to play the video.

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Joe was seen approaching the victim’s vehicle and Green heads towards his

vehicle. Id. at 39.

      Trooper Trace admitted that for ten minutes of the video “you can see

some sort of movement. What that movement is, I wouldn’t be able to say.”

Id. at 38. He also agreed that the video does not show “a whole lot of what’s

going on in the vehicle or outside of the vehicle.” Id. at 42. He also agreed

that there were times that people drove or walked by the victim’s vehicle and

did not “seem to be alerted to anything happening at the vehicle.” Id. at 48.

      The prosecution also presented the testimony of the victim’s coworker

who was at the scene, Joe. He testified that on the day of the incident, while

walking toward the Walmart, he heard someone yell his name. Id. at 57-58.

He said that he heard this two to three times, and as he went toward the

voice, he saw the victim in her van. Id. at 58-59. When he reached her

vehicle, he saw Green going to his vehicle, which was on the other side of the

victim’s van. Id. at 59-60. Joe described the victim’s demeanor as “on the

frantic side, animated.” Id. at 60. He said the victim told him that “[Green]

was reaching inside her car door because she had the window down and he

was inside and he was trying to grab her.” Id. On cross-examination, he

remembered telling police that the victim had told him that Green “had his

hand on her leg or between her legs somewhere but she didn’t specify,” and

that Green tried to kiss her. Id. at. 63.

      An acquaintance of the victim and of Green, Misty Carr, testified about

past interactions between the victim and Green. She said that on one occasion

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at work she saw Green pull the victim’s hair and “said that she liked it.” Id.

at 19. On another occasion, she heard Green tell the victim “he would like to

bang her just one time.” Id. During each incident, the victim did not “respond

positively” to Green’s sexual advances. Id. She also testified that she saw

Green “physically go behind [the victim] and press up against her” with his

penis, but admitted that she did not tell the police about that incident when

they interviewed her. Id. at 21-22.

      Green testified in his own defense. In general terms, he claimed that

the victim had been the aggressor in their prior interactions and had in fact

sexually assaulted him previously. Regarding the day in question, he said the

victim had initiated a sexual discussion with him about her genitals, but denied

any physical contact with the victim in the Walmart parking lot.

      The jury found Green guilty of the above crimes and the trial court

sentenced him to an aggregate term of 20 to 204 months’ incarceration. Green

filed a post-sentence motion arguing the convictions were against the weight

of the evidence, which the trial court denied. This timely appeal followed.

      Green raises one issue: “Did the trial court err by finding that the jury’s

verdicts were not against the weight of the evidence?” Green’s Br. at 4. This

claim is meritless and warrants no relief.

      We do not review directly whether a verdict was against the weight of

the evidence. Rather, a defendant must present a weight claim first to the trial

court, which, in its discretion, may grant a new trial on a weight claim only if

the evidence is “‘so tenuous, vague and uncertain that the verdict shocks the

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conscience of the court.’” Commonwealth v. Manley, 985 A.2d 256, 262

(Pa.Super. 2009) (quoting Commonwealth v. Sullivan, 820 A.2d 795, 806

(Pa.Super. 2003)). We then review the trial court’s ruling on the weight

challenge for an abuse of discretion. See Commonwealth v. Clay, 64 A.3d

1049, 1054-55 (Pa. 2013).

      Green claims that the trial court should have granted his weight claim

because the testimony from the Commonwealth’s witnesses was not credible,

while his self-serving testimony was credible. The trial court rejected Green’s

claim, concluding that the jury’s crediting the victim’s testimony, and it’s

disbelieving his testimony, was not shocking:

      The evidence [Green] complains of as not being accorded proper
      weight by the jury was entirely vetted in front of the jury, and
      argument made thereon by counsel. The jury heard the victim’s
      testimony regarding calling for help, heard her testimony
      regarding the actions of [Green] in her car, and had a full
      opportunity to view the surveillance video. . . . If the jury
      determined the victim’s testimony was not corroborated by the
      video, and her prior statements to the police were inconsistent,
      they were free to disregard the video and prior inconsistent
      statements in favor of credible trial testimony.

Trial Court Opinion, filed 2/6/19, at 11-12.

      This was not an abuse of discretion. The jury was presented with two

different versions of what occurred on the day of the incident. While the two

stories conflicted, it was in the hands of the jury to resolve these

contradictions. See In re J.M., 89 A.3d 688, 692 (Pa.Super. 2014)

(concluding that where contradiction in testimony exists, the jury is to resolve

such contradictions). The jury was free to believe all, some, or none of the

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evidence, and here it believed the version of events the prosecution’s evidence

presented. See id. at 691. In view of the significant evidence the prosecution

produced, we cannot say that the trial court abused its discretion in rejecting

Green’s weight claim. See Manley, 985 A.2d at 262.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/4/2019




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