J-S33019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES ANTHONY WEBSTER                    :
                                               :
                       Appellant               :   No. 101 MDA 2019

       Appeal from the Judgment of Sentence Entered November 9, 2018
                 In the Court of Common Pleas of Tioga County
             Criminal Division at No(s): CP-59-CR-0000359-2017


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 08, 2019

        Charles Anthony Webster appeals from the judgment of sentence

imposed on November 9, 2018. On October 17, 2018, a jury found Webster

guilty of one count each of conspiracy to commit aggravated assault and

conspiracy to commit simple assault.1 The trial court sentenced Webster to

serve an aggregate term of 42 to 84 months’ imprisonment.             On appeal,

Webster challenges the denial of his motion for a mistrial and the sufficiency

of the evidence. Based upon the following, we affirm.

        As the parties are well acquainted with the facts and procedural history

of this case, we do not restate them. We briefly note, on August 21, 2017, at

approximately 9:00 p.m., Webster and his son, Justin Webster, assaulted


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1   18 Pa.C.S.A. §§ 903, 2702(a)(1), and 2701(a)(2), respectively.
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Logan McGovern. Approximately two days previously, McGovern got into a

fistfight with Justin Webster. On the evening in question, McGovern drove his

car into his driveway. A car, driven by Webster, pulled in behind McGovern’s

car, and parked perpendicularly to it.      Justin Webster then exited the

passenger side of the car, pulled McGovern from his car, and began to hit him.

As the fight progressed, Webster emerged from the car carrying a blue

aluminum baseball bat and hit McGovern once on the head.            McGovern

dropped to the ground, bleeding profusely. As neighbors came out to break

up the fight, the Websters fled the scene. See N.T. Trial, 10/17/2018, at 17-

27, 46-53, 64-70.

       At trial, Samantha Dietrich, Clinton Onks, and Jon Onks, all neighbors

of McGovern, who witnessed the fight, testified.    All three were previously

acquainted with Justin Webster; the Onkses were also acquainted with

Webster. All three had previously given statements to the police in which they

identified Justin Webster as the individual who hit McGovern with the baseball

bat.   At trial, Dietrich and Jon Onks maintained they had given the wrong

name to the police and it was Webster, not Justin Webster, who hit McGovern

with a bat. Clinton Onks also initially testified Webster hit McGovern with the

bat but then changed his mind and said his initial statement was probably the

more accurate one but he was not one hundred percent sure which Webster

hit McGovern with the bat. McGovern testified he was unable to remember

the incident. See id. at 17-30, 46-53, 55-57, 64-73, 99-107.


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      Justin Webster, who had previously entered a guilty plea in the matter,

testified as a Commonwealth witness but gave a very different version of the

events. He claimed McGovern was the aggressor, no one hit McGovern with

a bat, and his father, Webster, merely drove him to the scene and had no idea

he intended to get into an altercation with McGovern. See id. at 79-98.

      During direct examination of the investigating officer, Pennsylvania

State Trooper Terry Seal, the assistant district attorney asked him if he had

interviewed Webster. Seal replied he had not because Webster declined to

speak with him.    Id. at 133.    Defense counsel immediately objected and

moved for a mistrial. Id. at 135. After a sidebar conference, the trial court

gave a cautionary instruction.      Id.   Defense counsel did not have any

objections to the court’s instruction and did not seek any additional relief. Id.

Later, during its charge, the trial court again instructed the jury on this issue;

when asked by the trial court, defense counsel had no objections to the charge

and did not seek any additional instructions. Id. at 175, 177.

       As noted above, the jury found Webster guilty of the aforementioned

charges and the trial court sentenced him on November 9, 2018.                 On

November 15, 2018, Webster filed a post-verdict motion.           The trial court




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issued an opinion and order denying the motion on December 17, 2018. The

instant, timely appeal followed.2

       In his first claim, Webster contends the trial court erred in denying his

motion for a mistrial. See Webster’s Brief, at 6-10.

       Our standard of review is as follows:

       We review the trial court’s decision to deny a mistrial for an abuse
       of discretion. A mistrial is necessary only when the incident upon
       which the motion is based is of such a nature that its unavoidable
       effect is to deprive the defendant of a fair trial by preventing the
       jury from weighing and rendering a true verdict. A mistrial is
       inappropriate where cautionary instructions are sufficient to
       overcome any potential prejudice.

Commonwealth v. Bedford, 50 A.3d 707, 712–713 (Pa. Super. 2012)

(citations and internal quotation marks omitted), appeal denied, 57 A.3d 65

(Pa. 2012).

       Further, this Court has stated:

       If the Commonwealth mentions a defendant’s post-arrest silence,
       the court might still be able to cure any prejudice through prompt
       and adequate curative instructions.           To evaluate whether
       cautionary instructions can cure a reference to a defendant’s post-
       arrest silence, courts must consider 1) the nature of the reference
       to the defendant’s silence; 2) how it was elicited; 3) whether the
       district attorney exploited it; and 4) the promptness and adequacy
       of the cautionary instructions. If the reference to the defendant’s
       post-arrest silence was such that it incurably compromised the
       jury’s objectivity and would deprive the defendant of a fair trial,
       then the court should grant a mistrial.
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2 On February 8, 2019, in response to the trial court’s order, Webster filed a
concise statement of errors complained of on appeal. On February 19, 2019,
the trial court issued an order adopting its earlier opinion as its Pa.R.A.P.
1925(a) statement. We note the Commonwealth did not file a brief in this
matter.

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Commonwealth v. Moury, 992 A.2d 162, 176 (Pa. Super. 2010) (internal

citations, quotation marks, and footnote omitted).

      At trial, the assistant district attorney asked Trooper Seal a series of

questions about his investigation of the case and the following occurred:

      [The Commonwealth]: Now, there were two defendants in this
      matter, originally, we’re only here on one today, but did you
      interview either of those defendants?

      [Trooper Seal]: Yes, I interviewed Justin Webster.

      [The Commonwealth]: Okay; and did you interview [Webster]
      here, Charles Webster?

      [Trooper Sea]: No, he declined to speak with me.

      [The Commonwealth]: Okay —

                     [Defense Counsel]:       — objection, Your Honor.
      May we approach?

N.T. Trial, 10/17/2018, at 133. Following a sidebar conference, during which

the trial court strongly admonished the assistant district attorney, it gave the

following cautionary instruction.

      All right, Members of the Jury, the — any criminal defendant, or
      anybody suspected of having committed an offense, or anybody
      being questioned by police officers or governmental officers, for
      any reason at all, has an absolute right not to make any kind of
      statements. Now, for this officer to have testified that [Webster]
      refused to make a statement or refused to testify was improper;
      and I’ve appropriately chastised the District Attorney for having
      asked the question that resulted in that response. And I am
      charging you, Members of the Jury, that you absolutely, positively,
      cannot use against [Webster] the fact that he would not speak
      with this Trooper. There are any number of reasons why he
      wouldn’t have done that, which may or may not have something
      to do with this case. But, in any event, you cannot use that

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       against him, and I instruct you not to use that against him in the
       event this case goes to deliberations.

Id., at 135.    Defense counsel did not object to this charge or seek any

additional relief.

       In this case, Trooper Seal’s reference to Webster’s post-arrest silence

was brief and fleeting. His answer was in response to a series of questions

about the course of his investigation. See N.T. Trial, 10/17/2018, at 130-

133.    The Commonwealth did not intend to elicit a response regarding

Webster’s post-arrest silence. Instead, Trooper Seal merely narrated what

actions he took in investigating the matter, which included an attempt to

interview Webster; however, Webster was unwilling to speak to him.          The

Commonwealth did not exploit Webster’s post-arrest silence.          It did not

continue questioning Trooper Seal about the subject. Finally, the trial court

gave a complete curative instruction.

       “[A] mistrial is not necessary where the [trial court’s] cautionary

instructions   are   adequate    to   overcome     any   possible   prejudice.”

Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007), cert. denied, 552

U.S. 1316 (2008) (citation omitted). Further, “[w]hen the trial court provides

cautionary instructions to the jury in the event the defense raises a motion for

a mistrial, [t]he law presumes that the jury will follow the instructions of the

court.” Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008),

appeal denied, 966 A.2d 571 (Pa. 2009) (citation and internal quotation marks

omitted).   Thus, we find all four factors weigh in favor of finding the trial

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court’s instruction cured any prejudice Webster may have suffered because of

Trooper Seal’s statement. Therefore, we conclude the trial court did not abuse

its discretion in denying Webster’s motion for mistrial. Webster’s first claim

does not merit relief.

      In his second claim, Webster contends the evidence was insufficient to

sustain his conviction.   See Webster’s Brief, at 10-15.      Because we find

Webster’s sufficiency claim is, in actuality, an unpreserved challenge to the

weight of the evidence, this claim is waived.

      In the instant matter, Webster argues, “the evidence produced at trial

was so contradictory to make any decision by the jury the product of

conjecture or guesswork.”    Webster’s Brief at 10.    He further states, “the

witnesses who testified at trial contradicted earlier statements made by them

as to what had actually occurred.” Id. at 10-11. Lastly, he maintains “the

testimony of the eyewitnesses differs with the testimony of the alleged co-

conspirator [Justin Webster] and the victim himself.” Id. at 14.

      Initially, we note a challenge to credibility of the evidence is a claim

regarding the weight of the evidence, not the sufficiency. This Court has

explained:

      This argument goes to the credibility of the witness’s testimony,
      and is, therefore, not an attack on the sufficiency of the evidence,
      but an allegation regarding the weight it should have been
      afforded. Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa.
      Super. 2011) appeal denied, 613 Pa. 663, 34 A.3d 828 (2011)
      (The appellant’s “sufficiency” argument directed entirely to the
      credibility of the Commonwealth’s chief witness challenged the
      weight, not the sufficiency, of the evidence).

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Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013), appeal

denied, 76 A.3d 538 (Pa. 2013). See Commonwealth v. W.H.M., Jr., 932

A.2d 155, 160 (Pa. Super. 2007) (claim jury should have believed appellant’s

version of event rather than that of victim goes to weight, not sufficiency of

evidence); Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super.

2003) (review of sufficiency of evidence does not include assessment of

credibility   of   testimony;   such   claim   goes   to   weight   of   evidence);

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997)

(credibility determinations are made by finder of fact and challenges to those

determinations go to weight, not sufficiency of evidence).

      It is well-settled law a defendant must raise a claim asserting the verdict

is against the weight of the evidence before the trial court, either orally at

sentencing or in a written post-sentence motion. See Pa.R.Crim.P. 607;

Commonwealth v. Jones, 191 A.3d 830, 834-835 (Pa. Super. 2018)

(challenge to weight of evidence must be raised in timely pre or post-trial

motion). Webster did neither. Therefore, he waived any possible weight of

the evidence claim.

      In an attempt to bolster his contention that his claim is a proper

challenge to the sufficiency of the evidence rather than the weight of the

evidence, Webster argues:

      When witnesses are offering contradictory versions of what
      occurred, it is unreasonable to believe a jury can find beyond a
      reasonable doubt that one version of events is the correct version.

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     This is especially true when the in court statements contradicts
     both the victim and the alleged co-conspirator. Based on these
     factors, … the verdict in the jury was a product of guesswork and
     does not meet the standard of proof beyond a reasonable doubt.

Webster’s Brief at 16.   In support of his claim, Webster relies upon the

Pennsylvania Supreme Court’s decision in Commonwealth v. Brown, 52

A.3d 1139 (Pa. 2012). See id. at 15. However, we find Brown is inapposite.

     Our Supreme Court framed the issue in Brown as follows:

     Whether [Appellant’s] conviction supported solely by out-of-court
     statements recanted at trial violates the guarantees of due
     process provided by the Fourteenth Amendment to the United
     States Constitution or Article I, Section [Nine] of the Pennsylvania
     Constitution?

Id. at 1154. Ultimately, the Court concluded such evidence was sufficient to

sustain a conviction and did not violate the due process clauses of the United

States and Pennsylvania Constitutions. The Court opined:

     [I]n sum, then, our review of authority from the United States
     Supreme Court and our Court, as well as our consideration of
     jurisprudence from other states which reject a per se rule, coupled
     with our over quarter-century of experience with the use of prior
     inconsistent statements as substantive evidence by the courts of
     this Commonwealth, convinces us that criminal convictions which
     rest only on prior inconsistent statements of witnesses who testify
     at trial do not constitute a deprivation of a defendant’s right to
     due process of law, as long as the prior inconsistent statements,
     taken as a whole, establish every element of the offense charged
     beyond a reasonable doubt, and the finder-of-fact could
     reasonably have relied upon them in arriving at tits decision. Prior
     inconsistent statements, which meet the requirements for
     admissibility under Pennsylvania law, must, therefore, be
     considered by a reviewing court in the same manner as any other
     type of validly admitted evidence when determining if sufficient
     evidence exists to sustain a criminal conviction.

Brown, supra, at 52 A.3d at 1170-1171.


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       In the instant matter, unlike in Brown, Dietrich and both Onkses never

recanted their initial statements. Instead, both Dietrich and Jon Onks claimed

they had made errors in their original statements regarding which Webster

wielded the bat. Clinton Onks waivered in his testimony, ultimately concluding

his memory of the incident was better at the time he gave his initial statement

to the police. Justin Webster, despite his guilty plea to aggravated assault,

testified to a self-serving version of the events wildly at odds with the

testimony of Dietrich and the Onkses. Moreover, the Brown Court held that

prior inconsistent statements, which meet the admissibility standards, may

alone be sufficient to sustain a conviction.       Accordingly, Webster’s second

claim does not merit relief.

       For all the foregoing reasons, we affirm Webster’s judgment of

sentence.3

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/08/2019

____________________________________________


3 This Court received notification Webster’s counsel will be suspended from
the practice of law effective October 28, 2018. Given this, we direct copies of
this decision be sent both to counsel and directly to Webster.

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