J-S50029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

JULIAN ABRON

                        Appellee                    No. 684 EDA 2016


                  Appeal from the Order February 5, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0010497-2013


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY MOULTON, J.:                       FILED OCTOBER 30, 2017

     The Commonwealth of Pennsylvania appeals from the February 5,

2016 order purporting to acquit Julian Abron of all charges upon which he

had been convicted following a non-jury trial. Because the trial court lacked

authority to acquit Abron after having entered a verdict of guilty that was

supported by sufficient evidence, we vacate and remand for further

proceedings.

     This case involved the alleged intimidation of an assault victim by

Abron and others, including his co-defendant, Mark Easley. The trial court

set forth a detailed factual history, which we adopt and incorporate herein.

See Opinion, 8/11/16, at 2-11 (“1925(a) Op.”).

     On February 5, 2016, the trial court conducted a non-jury trial. At the

conclusion of the trial, after hearing argument from counsel for both
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defendants and the Commonwealth, the trial court made the following

statement on the record:

           I don’t think there’s enough for VUFA, so that’s out.
           However, based on the entirety of the evidence, there is
           enough for retaliation and the intimidation charges,
           charges three and four and one, which was conspiracy for
           those charges.[1]

N.T., 2/5/16, at 127.            After discussing sentencing and possible bail

revocation,2 the trial court excused the parties and called a brief recess. Id.

at 129.

       Following the recess,3 the trial court returned to the bench and stated:

____________________________________________


       118 Pa.C.S. §§ 4952(a)(1), 4953(a), and 903(a), respectively. We
note that while the trial court did not use the term “guilty” in its findings, all
parties appear to agree that the trial court found Abron guilty of the
aforementioned charges.

       2The docket entry for the verdicts indicates that after the court found
Abron guilty, it then: (1) ordered a presentence investigation; (2) heard an
oral motion from the Commonwealth to revoke bail, which it denied; (3)
heard an oral motion from Abron to reconsider adjudication, which it
granted; (4) found Abron not guilty on all charges; and (5) vacated Abron’s
electronic monitoring and cancelled sentencing.

       3In its motion for reconsideration, the Commonwealth averred that,
after denying the Commonwealth’s motion to revoke bail, the trial court
ordered a “staggered release” so the victim, Maneia Singleton and her
Mother could leave before Abron. The Commonwealth claims that Singleton
and her Mother asked to address the court before leaving, stating “how they
felt they were mistreated by the Philadelphia Police Department and the
Philadelphia District Attorney’s Office.” Cmwlth.’s Mt. to Reconsider Am.
Verdict, 2/18/16, at 3. According to the Commonwealth, the trial court then
called Abron back into the courtroom, called the attorneys to sidebar, and
stated that it had reconsidered its verdict. Id. Based on the transcript of
proceedings, we cannot determine whether the court’s discussion with
(Footnote Continued Next Page)


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          THE COURT: Step up Mr. Abron.               The Court is
          reconsidering its decision in the matter of Julian Abron.
          The court has reasonable doubt as to the identification of
          this defendant alone because of the description given by
          the complaining witness in the grand jury investigation
          notes during at which time [sic] she said that he was light
          skinned. Clearly, he is not light skinned today nor was he
          in the picture or photo, nor was he ever light skinned. I
          can see that with my own eyes. Not guilty on this matter.

          THE COMMONWEALTH:       Please      just       note      the
          Commonwealth’s objection for the record.

          THE COURT:       Yes.

Id.

      On February 18, 2016, the Commonwealth filed a motion to

reconsider, which the trial court denied without a hearing on February 19,

2016. On March 2, 2016, the Commonwealth timely filed a notice of appeal.

      The Commonwealth raises one issue on appeal: “Did the trial court err

in arresting judgment and vacating the guilty verdict where the evidence

was legally sufficient to prove intimidation of a witness, retaliation against a

witness, and criminal conspiracy?” Cmwlth.’s Br. at 2.

      The Commonwealth first argues that the trial court lacked the

authority to reconsider and vacate Abron’s verdict sua sponte.4             The
(Footnote Continued) _______________________

Singleton and her mother occurred before or after the court announced that
it had reconsidered its verdict.

      4 Abron argues that the Commonwealth has waived this argument
because it failed to include it in its Pennsylvania Rule of Appellate Procedure
1925(b) statement.         However, the trial court never ordered the
Commonwealth to file a Rule 1925(b) statement.                 Because “[t]he
requirements of Rule 1925(b) are not invoked in cases where there is no
(Footnote Continued Next Page)


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Commonwealth contends that “a trial court has no more authority over a

verdict in a non-jury trial than it does over a jury verdict” and, therefore, the

trial court erred in vacating Abron’s convictions sua sponte. Cmwlth.’s Br. at

8-9.   In addition, the Commonwealth asserts that, even if the trial court

could address the sufficiency of the evidence sua sponte, the trial court

erred because its decision was based on the weight, rather than the

sufficiency, of the evidence. Finally, the Commonwealth argues that, in any

event, the evidence was sufficient to sustain Abron’s conviction.

       Abron responds that the trial court’s decision was not sua sponte but

instead was based on an oral motion. Abron further contends that “the trial

court properly granted an arrest of judgment because the identification

evidence was insufficient to establish beyond a reasonable doubt that . . .

Abron[] was one of the individuals involved in the . . . incident.” Abron’s Br.

at 13. According to Abron, the trial court did not re-evaluate “the testimony

presented or alter[] its determination of witness credibility to arrive at a not

guilty verdict,” but instead determined that the identification of Abron by the

victim, Maneia Singleton, was insufficient to sustain the conviction.        Id.


(Footnote Continued) _______________________

trial court order directing an appellant to file a Rule 1925(b) statement[,]”
we will not conduct a waiver analysis. Commonwealth v. Antidormi, 84
A.3d 736, 745 n.7 (Pa.Super. 2014); see also Commonwealth v.
Thomas, 451 A.2d 470, 472 n.8 (Pa.Super. 1982) (“[T]he lower court must
order a concise statement of [errors] complained of on appeal and an
appellant must fail to comply with such directive before this Court can find
waiver . . . .”).



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Abron asserts that a trial judge may grant an arrest of judgment where the

trial court determines that the evidence was insufficient.

       Preliminarily, we must attempt to determine the basis for the trial

court’s decision. A trial court has the authority to consider sufficiency post

verdict, even if it was the fact-finder and even in the absence of a motion.

See Commonwealth v. Stark, 584 A.2d 289, 291 (Pa. 1990).                Once it

enters a guilty verdict, however, it may not sua sponte reconsider the weight

of the evidence.5       See Commonwealth v. Robinson, 33 A.3d 89, 94

(Pa.Super. 2011).       Not surprisingly, Abron and the trial court characterize

the court’s decision as an arrest of judgment based on insufficient evidence

to sustain Abron’s convictions.        The Commonwealth, in contrast, points to

language in the trial court’s opinion that appears to focus on weight and

credibility. See Cmwlth.’s Br. at 12-13.

       Unfortunately, neither the transcript of proceedings nor the trial

court’s Pennsylvania Rule of Appellate Procedure 1925(a) opinion makes

clear whether the court’s decision was based on weight or sufficiency. The

opinion concludes that “all reasonable inferences deduced from the evidence

were insufficient to establish all the elements of the offenses beyond a

reasonable doubt.” 1925(a) Op. at 15 (emphasis added). In contrast, the

opinion also states that because “[i]t was within the exclusive province of

____________________________________________


       5This is not to say that Abron could not file a post-verdict motion
challenging the weight of the evidence.



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the trial court as fact-finder to resolve conflicts in the testimony and to

believe all, part, or none of the evidence,” the court “did not abuse its

discretion in arresting the judgment and vacating the guilty verdict on

the weight of the evidence.” 1925(a) Op. at 12 (emphasis added). The

trial court focused on Singleton’s credibility, concluding that “there was

insufficient evidence to satisfy a guilty verdict because [Singleton]’s

testimony was largely inconclusive as she was unable to identify [Abron] and

her memory was unreliable.”6 Id. at 13. In addition, the trial court stated

that the “police officer[’s] testimony was unreliable and inconsistent” and

took issue with the show-up identification of Abron. Id. at 15. Because the

trial court was not clear about whether it was arresting judgment based on

insufficiency or weight of the evidence, we are constrained to examine each

possibility in turn.

       We first examine whether the trial court could have properly arrested

judgment based on insufficiency of the evidence. Our standard of review for

a sufficiency of the evidence claim is as follows:

               We must determine whether the evidence admitted at
           trial, and all reasonable inferences drawn therefrom, when
           viewed in a light most favorable to the Commonwealth as
           verdict winner, support the conviction beyond a reasonable
           doubt. Where there is sufficient evidence to enable the
           trier of fact to find every element of the crime has been
____________________________________________


       The standard of review set forth in the trial court’s opinion addresses
       6

standards for both sufficiency and weight of the evidence. See 1925(a) Op.
at 11-12.



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        established beyond a reasonable doubt, the sufficiency of
        the evidence claim must fail.

           The evidence established at trial need not preclude
        every possibility of innocence and the fact-finder is free to
        believe all, part, or none of the evidence presented. It is
        not within the province of this Court to re-weigh the
        evidence and substitute our judgment for that of the fact-
        finder.   The Commonwealth’s burden may be met by
        wholly circumstantial evidence and any doubt about the
        defendant’s guilt is to be resolved by the fact[-]finder
        unless the evidence is so weak and inconclusive that, as a
        matter of law, no probability of fact can be drawn from the
        combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

     A person may be convicted of intimidating a witness or victim if

        with the intent to or with the knowledge that his conduct
        will obstruct, impede, impair, prevent or interfere with the
        administration of criminal justice, he intimidates or
        attempts to intimidate any witness or victim to:

           (1) Refrain from informing or reporting to any law
              enforcement officer, prosecuting official or judge
              concerning any information, document or thing
              relating to the commission of a crime.

18 Pa.C.S. § 4952(a)(1). Additionally, we note that

        [a]ctual intimidation of a witness is not an essential
        element of the crime. The crime is committed if one, with
        the necessary mens rea, “attempts” to intimidate a witness
        or victim. . . . The trier of the facts, therefore, could find
        that appellant attempted to intimidate his accuser and that
        he did so intending or, at least, having knowledge that his
        conduct was likely to, impede, impair or interfere with the
        administration of criminal justice. . . . The Commonwealth
        is not required to prove mens rea by direct evidence.
        Frequently, such evidence is not available. In such cases,
        the Commonwealth may rely on circumstantial evidence.



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Commonwealth v. Beasley, 138 A.3d 39, 48 (Pa.Super.) (quoting

Commonwealth v. Collington, 615 A.2d 769, 770 (Pa. Super. 1992))

(emphasis in original), app. denied, 161 A.3d 791 (Pa. 2016).

      A person may be convicted of retaliation against a witness or victim “if

he harms another by any unlawful act or engages in a course of conduct or

repeatedly commits acts which threaten another in retaliation for anything

lawfully done in the capacity of witness, victim or a party in a civil matter.”

18 Pa.C.S. § 4953(a).

      A person may be convicted “of conspiracy with another person . . . to

commit a crime if with the intent of promoting or facilitating its commission

he . . . agrees with such other person . . . that they or one or more of them

will engage in conduct which constitutes such crime or an attempt or

solicitation to commit such crime . . . .” 18 Pa.C.S. § 903. Thus, to sustain

a conspiracy conviction, the Commonwealth must prove “(1) an intent to

commit or aid in an unlawful act, (2) an agreement with a co-conspirator[,]

and (3) an overt act in furtherance of the conspiracy.” Commonwealth v.

Spotz, 756 A.2d 1139, 1162 (Pa. 2000). “Because it is difficult to prove an

explicit or formal agreement to commit an unlawful act, such an act may be

proved inferentially by circumstantial evidence, i.e., the relations, conduct or

circumstances of the parties or overt acts on the part of the co-

conspirators.” Id.

      Viewing   the     evidence   in   the   light   most   favorable   to   the

Commonwealth, we conclude that the evidence was sufficient to convict

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Abron of the aforementioned offenses. Singleton’s prior statements, first to

police and then to the grand jury, were admitted as substantive evidence

under Pennsylvania Rule of Evidence 803.1. In those statements, Singleton

stated that, after reporting an assault to the police, Abron and his co-

defendant drove up to Singleton’s home—Singleton remembered the color

and license plate of the vehicle. Cmwlth.’s Reproduced Record at 57, 78.7

Singleton stated that when they exited the vehicle, she saw that one of them

had a gun, which he then placed in the trunk. Id. at 58-59, 78. Singleton

also stated that both men admonished Singleton and her fiancé for

“snitching.”    Id. at 58, 78.      After Singleton reported this incident to the

police, the men returned, again calling Singleton and her fiancé “snitches”

and challenging her fiancé to a fight.           Id. at 59-60, 78.   Singleton also

testified that one of the men brandished a gun, grabbing at the weapon

while it was tucked into his waistband. Id. at 61, 79. Later that day when

police stopped the vehicle, Singleton identified Abron, his co-defendant, and

the vehicle. Id. at 63, 79. Because these identifications confirmed Abron as

one of the men who intimidated and threatened her and her fiancé, we

conclude that, despite the trial court’s post-verdict decision to discredit

Singleton’s earlier statements, the evidence was sufficient to convict Abron.


____________________________________________


       The police statement and grand jury testimony were not submitted
       7

as part of the certified record, but were admitted as exhibits at trial.
Accordingly, we cite the Commonwealth’s reproduced record.



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See Commonwealth v. Orr, 38 A.3d 868, 874-75 (Pa.Super. 2011)

(concluding that      victim’s out-of-court identification, along with other

circumstantial evidence, was sufficient to convict appellant).

      The possibility remains, however, that the trial court’s ruling was

based on weight, not sufficiency.            Despite citing case law relating to

sufficiency, the trial court appears to have based its decision largely on its

post-verdict assessment of Singleton’s credibility.            An issue “[d]irected

entirely to the credibility of the Commonwealth’s chief witness . . .

challenges    the     weight,    not   the      sufficiency,   of   the   evidence.”

Commonwealth v. Palo, 24 A.3d 1050, 1054 (Pa.Super. 2011). However,

a trial court lacks the authority to vacate a guilty verdict based on the

weight of the evidence in the absence of a defense motion.                      See

Commonwealth v. Robinson, 33 A.3d 89, 94 (Pa.Super. 2011).

      Our decision in Robinson is instructive. There, following a non-jury

trial, the trial court found Robinson guilty of theft by unlawful taking,

sentenced Robinson to 18 months’ probation, but deferred restitution to

allow “the Commonwealth to obtain accurate figures on the value of the

stolen items.”      Id. at 91.   When the trial court convened a restitution

hearing, “instead of determining restitution, the trial court sua sponte

vacated [Robinson]’s judgment of sentence and entered a verdict of not

guilty. . . . because it had failed to give due consideration to the weight of

[Robinson]’s character evidence.” Id. (quotation omitted).




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      We reversed, reinstated the verdict and judgment of sentence, and

remanded for a restitution determination.       After determining that the trial

court acted sua sponte because no oral motion for an arrest of judgment

appeared of record, we concluded that the trial court lacked the authority to

modify the verdict because

           [a] post-verdict court may not reweigh the evidence and
           change its mind as the trial court did herein. Although a
           post-verdict judge may question a verdict, his
           discretionary powers are limited to a determination of
           whether the evidence was sufficient to uphold the original
           verdict, and he may not alter the original verdict and
           substitute a new one. The trial court’s verdict must be
           accorded the same legal effect as a jury verdict. Post-trial,
           the court cannot re-deliberate as it is no longer the fact[-
           ]finder. Just as jurors are not permitted to testify as to
           the mental processes that led to their verdict, so is the
           trial court precluded from testifying as to its flawed
           thought process as a fact[-]finder.

Id. at 94 (internal citations omitted); see Commonwealth v. Parker, 451

A.2d 767, 769-70 (Pa.Super. 1982) (concluding that trial court exceeded its

authority in reconsidering facts and sua sponte changing verdict to not

guilty).

      Unfortunately, here again, the record is unclear. Both Abron and the

trial court contend that Abron made an oral motion for reconsideration of the

evidence.    The Commonwealth, rather than affirmatively asserting that no

such motion was made, instead contends that no such motion appears in the

record.    Based on our review, the only reference in the record to such a

motion is the docket entry for the verdicts in this case.



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       Even if Abron made the motion and the trial court granted the motion

based on the weight of the evidence, the trial court erred in granting Abron a

discharge.     It is well settled that where a trial court concludes that the

verdict was against the weight of the evidence, the proper relief is a new

trial. See Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994) (“A

trial court will grant a new trial when it believes the verdict was against the

weight of the evidence and resulted in a miscarriage of justice.”) (quotation

omitted).    Accordingly, under these circumstances, if the trial court found

that the verdict was against the weight of the evidence, the proper remedy

was to grant Abron a new trial.

       If, however, Abron did not make the motion, then trial court sua

sponte reweighed the evidence and exceeded its authority because absent a

post-verdict motion challenging the weight of the evidence, “[a] post-verdict

court may not reweigh the evidence.” Robinson, 33 A.3d at 94.

       Because we cannot determine whether a motion for reconsideration

was properly before the court, we remand this matter for further

proceedings. If the trial court determines that Abron moved the trial court

for reconsideration because the verdict was against the weight of the

evidence, then the trial court may reweigh the evidence and determine

whether Abron should receive a new trial.8         However, if the trial court

____________________________________________


       Given the state of the record, and the failure of the parties to
       8

address this issue on appeal, we do not address at this time whether a
(Footnote Continued Next Page)


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determines that Abron did not move for reconsideration, then it improperly

re-weighed the evidence following a finding of guilt because it lacked the

authority to sua sponte change the verdicts. Under those circumstances, the

trial   court’s   order   changing    the      verdicts   was   a   legal   nullity,   see

Commonwealth v. Stark, 584 A.2d 289, 291 (Pa. 1990), and the trial

court should reinstate the original verdicts and schedule sentencing.

        Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2017




(Footnote Continued) _______________________

determination that the verdicts were against the weight of the evidence
would be an abuse of discretion. See Commonwealth v. Widmer, 744
A.2d 745, 751-52 (Pa. 2000).



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