J. A19038/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
ROBERT A. McGARVEY,                      :         No. 1809 MDA 2017
                                         :
                         Appellant       :


       Appeal from the Judgment of Sentence Entered October 23, 2017,
                in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0003082-2016


BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: NOVEMBER 5, 2018

        Robert A. McGarvey appeals from the October 23, 2017 judgment of

sentence entered in the Court of Common Pleas of Dauphin County following

his conviction in a waiver trial of one count each of open lewdness and

disorderly conduct (obscene gesture) and two counts of harassment.1 The

trial court imposed an aggregate sentence of six months of probation, together

with fines totaling $55, a mental health evaluation and treatment, and

50 hours of community service. The trial court also ordered that appellant

have no contact with the victim and that appellant no longer be permitted in

Strawberry Square, the mall where the incident giving rise to appellant’s

convictions occurred. We affirm.




1   18 Pa.C.S.A. §§ 5901, 5503(a)(3), and 2709(a)(2) and (a)(3), respectively.
J. A19038/18

     The trial court set forth the following:

           The bench trial held on September 1, 2017
           established      the    following      facts.         The
           victim[Footnote 7] testified that she would get off
           school at 2:40 p.m. and would go sit in the food court
           at Strawberry Square, located in downtown
           Harrisburg. The victim would do this pretty much
           every day after school and remembers the incident
           that occurred on March 7, 2016.               The victim
           recognized and identified the Appellant and the victim
           indicated that on this particular date, the Appellant sat
           closer to her than he had before. The victim also
           testified that she saw the Appellant most days since
           the beginning of the 2015 school year (end of August).
           On the date of the incident, Appellant sat at a different
           table and the victim adjusted her computer so that the
           Appellant could not see her. After about an hour, the
           Appellant got up and left.            At this time, a
           woman[Footnote 9] who was present on the date of
           the incident went up to the victim to see if the victim
           was ok. On cross-examination, the victim again
           reiterated that the Appellant would always sit at a
           table near her and would stare at her. On one
           occasion, the victim told the Appellant to stop staring
           at her because he was making her uncomfortable.
           The Appellant returned in a couple days and continued
           to sit across from the victim.

                 [Footnote 7] At the time of the bench trial,
                 the victim was a 16 year old girl.

                 [Footnote 9] This woman is Caroline
                 Mitchell who testified.

           Caroline Mitchell (“Mitchell”) also testified on behalf of
           the Commonwealth. Mitchell testified that she was
           working at Strawberry Square at the time of the
           incident. Mitchell could see a lot of jerking and arm
           activating and it appears that the Appellant was
           relieving himself. Mitchell also noticed the victim
           sitting near the Appellant. Mitchel[l] testified that his
           hands were in his crotch area and that it looked like
           the Appellant was mast[u]rbating. Mitchell met with


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              police on March 9, 2015 and was able to identify the
              Appellant.     Finally, Mitchell reiterated that the
              Appellant was mast[u]rbating, making weird faces
              and relieving himself. Officer Christopher Cruz, of the
              Pennsylvania Capitol Police, also testified that he was
              assigned to the investigation. The Appellant also
              testified at the bench trial but indicated that he did
              not remember what happened on March 7, 2015.

Trial court opinion, 1/3/18 at 2-3 (record citations and footnote 8 omitted).

        The record reflects that following his convictions, appellant filed a timely

post-sentence motion, which the trial court denied.         Appellant then filed a

timely notice of appeal. The trial court ordered appellant to file a statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

complied. The trial court then filed its Pa.R.A.P. 1925(a) opinion.

        Appellant raises the following issues for our review:2

              [1.]   Whether the Commonwealth failed to present
                     sufficient evidence, as a matter of law, to
                     sustain appellant’s convictions where the
                     Commonwealth did not prove, inter alia, that
                     the appellant actually committed any lewd act
                     that would affront or alarm others if observed,
                     nor committed any act with the intent to cause
                     a public inconvenience, annoyance or alarm, nor
                     committed repeated acts with the intention of
                     annoying, alarming, or harassing another
                     person.

              [2.]   Whether the trial court erred when it denied
                     appellant’s post-sentence motion because the
                     verdict was so contrary to the weight of the
                     evidence as to shock one’s sense of justice?

Appellant’s brief at 6 (full capitalization omitted).


2   We have re-ordered appellant’s issues for ease of discussion.


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      We first address appellant’s challenge to the sufficiency of the evidence

to sustain his convictions.3 A reading of appellant’s brief on this issue reveals

that appellant does nothing more than challenge the credibility of the

witnesses, take issue with the Commonwealth’s failure to produce a videotape

of the incident to corroborate witness testimony, and refer to the argument

he advances to support his weight challenge. (See appellant’s brief at 17-20.)

In so doing, appellant challenges the weight of the evidence, not its

sufficiency. See, e.g., Commonwealth v. Gibbs, 981 A.2d 274, 281-282

(Pa.Super. 2008) (an argument that the fact-finder should have credited one

witness’s testimony over that of another witness goes to the weight of the

evidence, not the sufficiency of the evidence); Commonwealth v. Wilson,

825 A.2d 710, 713-714 (Pa.Super. 2003) (a review of the sufficiency of the

evidence does not include a credibility assessment; such a claim goes to the

weight of the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227

(Pa.Super. 1997) (the fact-finder makes credibility determinations, and

challenges to those determinations go to the weight of the evidence, not the

sufficiency of the evidence).

            The essence of appellate review for a weight claim
            appears to lie in ensuring that the trial court’s decision
            has record support. Where the record adequately


3 We note that although appellant did not challenge the sufficiency of the
evidence in his post-trial motion, this issue is not waived.          See
Pa.R.Crim.P. 606, cmt. (“The defendant may also raise [a challenge to the
sufficiency of the evidence] for the first time on appeal under
[paragraph] (A)(7).”).


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            supports the trial court, the trial court has acted within
            the limits of its discretion.

            ....

            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. 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 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.

            ....

            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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations and

quotation marks omitted). “In order for a defendant to prevail on a challenge

to the weight of the evidence, ‘the evidence must be so tenuous, vague and

uncertain   that   the   verdict   shocks   the   conscience    of   the   court.’”

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013) (citation

omitted).

     In his brief, appellant contends that Ms. Mitchell’s testimony that

appellant was masturbating in public was mere speculation and but for that

testimony, appellant would not have been convicted of open lewdness and



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disorderly conduct (obscene gesture). (Appellant’s brief at 13-14.) Appellant

further maintains that the victim’s testimony that resulted in his harassment

convictions “qualifies as mere presence and routine, rather than intent to

harass.” (Id. at 15.) In so doing, appellant invites us to do nothing more

than assess the credibility of the witnesses and reweigh the evidence in an

attempt to convince us to reach a different result than the trial court reached.

We decline appellant’s invitation. The trial court, as fact-finder, had the duty

to determine the credibility of the testimony and evidence presented at trial.

See Talbert, 129 A.3d at 546. Appellate courts cannot and do not substitute

their judgment for that of the fact-finder. See id. Here, the trial court found

the testimony of Ms. Mitchell and the victim to be credible. The verdict is not

so contrary to the evidence as to shock the conscience. Therefore, the trial

court properly denied appellant’s weight of the evidence claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/05/2018




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