Commonwealth v. Weir

201 A.3d 163

COMMONWEALTH of Pennsylvania

v.Christopher Robert WEIR, Appellant

No. 1799 WDA 2016

Superior Court of Pennsylvania.

Submitted January 23, 2018

Filed December 17, 2018

Nicole L. Carnevale, Public Defender, Pittsburgh, for appellant.

Margaret B. Ivory, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

OPINION BY BOWES, J.:

Christopher Robert Weir appeals from the judgment of sentence imposed following his convictions of criminal mischief and harassment. We affirm.

The trial court summarized the relevant facts as follows:

On April 13, 2016, Jacob Korimko was working as a mechanic at a garage he operated. While he was working on a vehicle, [Appellant] entered the garage and began shouting at Mr. Korimko, claiming that Mr. Korimko owed him money. Mr. Korimko vehemently denied that he owed [Appellant] any money. [Appellant] became agitated and took a very aggressive stance toward Mr. Korimko. [Appellant] continued shouting at Mr. Korimko in a threatening manner and Mr. Korimko feared that [Appellant] was about to physically assault him. Mr. Korimko stepped back away from [Appellant] and [Appellant] then swung his fist and contacted the front headlight/cowl area of Mr. Korimko's 2012 Kawasaki 600 motorcycle. As a result, the entire headlight assembly was damaged. The cowl was caved in. The headlight was broken and the two side frames were destroyed. The main support for the headlight was also broken along with the entire gauge cluster. Mr. Korimko paid $1,4[92]^{[1 ]} to have the parts replaced. He testified that he had received an additional estimate of $1,000 to have the parts painted to match the motorcycle's color. However, he could not afford to pay the additional $1,000 so he did not have the work done prior to the trial.

Trial Court Opinion, 6/22/17, at 2.²

After a non-jury trial, Appellant was found guilty of criminal mischief and the summary offense of harassment. The court sentenced him to serve one to two years probation for criminal mischief, and a consecutive ninety-day term of probation for harassment. The sentencing court also ordered Appellant to pay Mr. Korimko $2,000 in restitution.³ Appellant filed a timely post-sentence motion claiming, inter alia , that (1) the verdict of criminal mischief was against the weight of the evidence because Appellant testified that he did not touch the motorcycle; and (2) the $2,000 award of restitution exceeded the $1,492 amount of loss paid by Mr. Korimko as of the date of trial. The trial court denied the post-sentence motion on October 27, 2016. Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant raises the following issues for our review:

I. Were the guilty verdicts of criminal mischief and harassment rendered against the weight of the evidence?

II. Alternatively, was the sentencing order imposing restitution in the amount of $2,000 speculative and unsupported by the record?

Appellant's brief at 5.

In his first issue, Appellant challenges the weight of the evidence supporting his convictions for criminal mischief and harassment. Initially, we determine whether Appellant preserved his weight challenges for our review.

A challenge to the weight of the evidence must be preserved either in a timely post-sentence motion, a written motion before sentencing, or orally prior to sentencing. See Pa.R.Crim.P. 607(A)(1)-(3) ; see also id. , cmt. ("The purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived."). A claim challenging the weight of the evidence cannot be raised for the first time on appeal. Commonwealth v. Wilson , 825 A.2d 710, 713 (Pa.Super. 2003). An appellant's failure to avail himself of any of the prescribed methods for presenting a weight of the evidence issue to the trial court constitutes waiver of that claim. Commonwealth v. Burkett , 830 A.2d 1034, 1037 (Pa.Super. 2003).

On appeal, Appellant argues that the guilty verdicts for both criminal mischief and harassment were against the weight of the evidence. Our review of the record indicates that Appellant's challenge to the weight of the evidence, as presented in his post-sentence motion, was limited to his criminal mischief conviction. See Post-Sentence Motion, 10/26/16, at 1-3. Thus, we deem his challenge to the weight of his harassment conviction waived. See Pa.R.Crim.P. 607 ; Wilson , supra at 713.

Turning to Appellant's criminal mischief conviction, the following legal principles apply when a challenge to the weight of the evidence supporting a conviction is presented to the trial court:

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation 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. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. 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.

Commonwealth v. Widmer , 560 Pa. 308, 744 A.2d 745, 751-52 (2000) (cleaned up).

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. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

Commonwealth v. Clay , 619 Pa. 423, 64 A.3d 1049, 1054-55 (2013) (emphasis in original, cleaned up). "The finder of fact is the exclusive judge of the weight of the evidence[,] as the fact[-]finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses." Commonwealth v. Boyd , 73 A.3d 1269, 1274 (Pa.Super. 2013) (en banc ). Therefore, we will reverse a verdict and grant a new trial only where the trial court abused its discretion in declining to find that the verdict is so contrary to the evidence as to shock one's sense of justice. Id.

Appellant contends that the trial court abused its discretion in finding him guilty of criminal mischief because Mr. Korimko's testimony was "incredible, unreliable, and self-serving," and "wholly inconsistent and unreliable." Appellant's brief at 12-13. According to Appellant, his own "testimony presented a more coherent, reasonable and likely account of what happened ...." Id. at 13. He additionally claims that "the contradictions that riddled [Mr.] Kori[m]ko's testimony ... shock one's sense of justice." Id. Appellant points to the police incident report which indicates that Mr. Korimko told police that repairs to his motorcycle would cost an estimated $250. Id. (citing Affidavit of Probable Cause, 4/16/16). He contrasts Mr. Korimko's initial estimate with his trial testimony that, without paint, the actual cost of the repairs to the frame of his motorcycle totaled $1,492. Id. Appellant argues that Mr. Korimko's explanation for the discrepancy (i.e. , that he initially believed only the headlight was damaged) was incredible, considering Mr. Korimko's contention "that he observed the caved-in nature of the cowl immediately after impact. " Id. at 14 (emphasis in original). He further discredits Mr. Korimko's testimony because he described his motorcycle to police as a 2014 Kawasaki, yet testified at trial that it was a 2012 model. Id. at 15. Appellant also claims that "[t]o believe that one single punch by [Appellant] to [Mr.] Kori[m]ko's motorcycle caused $2,000 worth of significant damage, including damage to the entire body of the motorcycle, strains the bounds of credibility." Id.

According to Appellant, the "most indicative and self-serving" aspect of Mr. Korimko's testimony was the deal they struck for Mr. Korimko to remove a vehicle from Appellant's property. Id. at 15-16. Appellant asserts that, although Mr. Korimko indicated that he ended up slowly dismantling the vehicle because a junkyard would not accept it without a title, "his testimony left unclear whether the parts were in a junkyard, or in his garage having been rejected by the junkyard." Id. at 16. He further contends that "[t]he disagreement over the vehicle parts provided [Mr.] Kori[m]ko with an opportunity to fabricate a story painting [Appellant] as an angry and physical aggressor."Id. at 17. Finally, Appellant argues that Mr. Korimko's "testimonial contradictions and inconsistencies, coupled with his motivation for testifying as he did against [Appellant]," render the guilty verdicts against the weight of the evidence. Id. at 17-18.

When, as in the instant case, the challenge to the weight of the evidence is predicated on the credibility of...