J-S04016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
THOMAS STUART KING                       :
                                         :
                   Appellant             :   No. 1373 MDA 2017

           Appeal from the Judgment of Sentence March 7, 2017
 In the Court of Common Pleas of Fulton County Criminal Division at No(s):
                         CP-29-CR-0000047-2016


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                             FILED MARCH 29, 2018

      Appellant, Thomas Stuart King, appeals from the Judgment of

Sentence entered in the Fulton County Court of Common Pleas. After careful

review, we affirm on the basis of the trial court’s Opinion, which found, inter

alia, that the jury’s verdict was not against the weight of the evidence.

      The trial court set forth the relevant factual and procedural history of

this case in its August 3, 2017 Opinion and we adopt its recitation for

purposes of this appeal.       See Trial Ct. Op., 8/3/17, at 1-5, 7-10.     In

summary, after a one-day trial, at which numerous individuals testified for

both parties, a jury convicted Appellant of two counts of Rape, two counts of

Statutory Sexual Assault, one count of Criminal Attempt-Involuntary Deviate
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Sexual Intercourse, and one count of Aggravated Indecent Assault. 1            On

March 7, 2017, the court sentenced Appellant to not less than 270 months’

nor more than 540 months’ imprisonment.

       Appellant filed a post-trial motion raising the claim that the verdict was

against the weight of the evidence. The trial court found that Appellant was

not entitled to relief.    The court determined that the verdicts, based upon

the evidence presented at trial, did not shock the court’s sense of justice.

       Appellant filed a timely Notice of Appeal.      He subsequently filed a

Pa.R.A.P. 1925(b) Statement to which the trial court responded with a Rule

1925(a) Opinion, incorporating its August 3, 2017 Opinion.

       Appellant raises the following issue on appeal:       “Whether the trial

court committed an abuse of discretion when determining that the jury’s

verdict was not against the weight of the evidence and resulted in a

miscarriage of justice such that a new trial should have been granted?”

Appellant’s Brief at 4.

       Appellant avers that the jury’s verdict was against the weight of the

evidence because there was more than a mere conflict in testimony. Id. at

14. He asserts that the jury did not give the proper weight to the testimony

of several individuals at trial that would have cast doubt on the credibility of

the victim. Id. at 14-15.

____________________________________________


1 18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3122.1(b);18 Pa.C.S. §§ 901,
3123(a)(1); 18 Pa.C.S. § 3125(a)(1), respectively.



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      Initially, we note that “[t]he weight of the evidence is exclusively for

the finder of fact who is free to believe all, part, or none of the evidence and

to determine the credibility of the witnesses.”           Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted).

      A trial court reviewing a challenge to the weight given the evidence

may grant relief only if “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.” Commonwealth v.

Clay, 64 A.3d 1049, 1055 (Pa. 2013).

      The trial court’s denial of a weight claim “is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 880 (Pa. 2008). See

Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super. 2006) (stating

that because the trial court “is in the best position to view the evidence

presented,” an appellate court will give that court “the utmost consideration”

when reviewing its weight determination).        “Where . . . the judge who

presided at trial ruled on the weight claim below, an appellate court's role is

not to consider the underlying question of whether the verdict is against the

weight of the evidence.” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa.

2014) (citation omitted). This Court is instead limited to evaluating only the

trial court’s exercise of discretion in denying that claim. Id.

      “A verdict is not contrary to the weight of the evidence because of a

conflict in testimony or because the reviewing court on the same facts might

have arrived at a different conclusion than the fact[-]finder.” Id.       As our

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Supreme Court has made clear, reversal is only appropriate “where the facts

and inferences disclose a palpable abuse of discretion[.]” Id.

      In the case sub judice, the judge who presided at trial ruled on the

weight of the evidence claim.     After a thorough review of the record, the

Briefs of the parties, the applicable law, and the comprehensive and well-

reasoned Opinion of the trial court, we discern no abuse of discretion. We

conclude that there is no merit to Appellant’s weight of the evidence claim.

Accordingly, we affirm on the basis of the trial court’s August 3, 2017

Opinion.

      The parties are instructed to attach a copy of the trial court’s August 3,

2017 Opinion to all future filings.

      Judgement of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/29/2018




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