Com. v. Milliard, F. ( 2018 )

J-S08011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
FRANCIS ANTHONY MILLIARD :
: No. 702 WDA 2017
Appellant
Appeal from the Judgment of Sentence November 18, 2016
In the Court of Common Pleas of Elk County Criminal Division at No(s):
CP-24-CR-0000283-2012
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 23, 2018
Francis Anthony Milliard appeals from the judgment of sentence,
entered in the Court of Common Pleas of Elk County, following his conviction
by a jury for arson and related offenses.1 After review, we affirm.
The trial court summarized the facts of this case as follows:
The incident which results in the filing of the [foregoing] charges
against [] Milliard was a fire that occurred on or about May 30,
2012, at the residence of Pauline Smith, located at 521 West Main
Street, Ridgeway Township, Elk County, Pennsylvania. After
investigation into the origin and cause of the fire, Pennsylvania
State Trooper[] Patrick S. McKackin, Alternate Deputy Fire
Marshal[,] revealed gasoline was present. State Farm Insurance
Company also conducted an independent investigation into the
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1 Arson, 18 Pa.C.S.A. § 3301(a)(1)(i); criminal conspiracy, 18 Pa.C.S.A. §
903(a)(1); criminal solicitation, 18 Pa.C.S.A. § 902(a), arson and related
offenses, 18 Pa.C.S.A. § 3301(d)(2); two counts of criminal mischief, 18
Pa.C.S.A. § 3304(a)(1), recklessly endangering another person, 18 Pa.C.S.A.
§ 2705.
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* Former Justice specially assigned to the Superior Court.
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fire, and fire investigator Robert G. Stewart [] concluded the cause
of the fire was a result of arson.
During the investigation into the fire, it was discovered that
Anthony Milliard, Milliard’s son, was involved with setting the fire
at 521 West Main Street. On July 10, 2012, Anthony Milliard was
taken into custody on an unrelated matter. When questioned
about [the] 521 West Main Street fire, Anthony Milliard explained
his involvement in setting the fire, which was at the direction of
Milliard. . . . During his recorded interview, Anthony Milliard
explained that on May 30, 2012 around 3:00 a.m., he was awoken
by Milliard and told to get ready. The two left their home at 76
Long Level Rd., Ridgeway, Pennsylvania in a blue minivan owned
by Milliard[,] at which time Milliard handed a glass jar filled with
gasoline, black gloves, and [a] rag to Anthony Milliard and
informed [him] he was going to burn down the residence of
Michelle Park[.] . . . Milliard and Anthony Milliard proceeded to
West Main street in [the] blue minivan, and parked at the West
End Supermarket. Milliard pointed out [Parks’] residence, and
instructed Anthony Milliard to light her house on fire. While
Milliard remained in the minivan, Anthony Milliard went between
two houses and poured gasoline on the back of 521 West Main
Street, igniting the fire. Once the residence, which he believed to
be owned by Park[,] was on fire, Anthony Milliard returned to the
minivan where Milliard was waiting. They left the West End
Supermarket, taking West Main Street and Grant Street in order
to return to 76 Long Level Road. While on Grant Street, Anthony
Milliard threw the now[-]empty glass jar and black gloves out the
window. It was not until the next day that it was discovered
Anthony Milliard lit Patricia Smith’s residence, instead of Parks’
residence[,] on fire.
* * *
Cecilia Jordan, Milliard’s Cousin[,] William Thortwart, employed by
Milliard, and Scott Lovell, Francis Milliard’s cousin[] all interacted
with Milliard following the fire. All three have similar testimony
that Milliard talked of a “weenie roast” that occurred at [] Parks’
house and subsequently how upset Milliard got once he learned
that it was not [her] house that caught on fire but instead []
Smith’s house. Moreover, there was testimony from [] Thomas
Prechtl that places two men in the blue minivan he saw at the
West End Supermarket on the night of May 30, 2012. [] Prechtl
was up in the early hours of May 30, 2012 as he was unable to
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sleep. He watched on as a young man exited the minivan and ran
down the street. [] Prechtl also noticed a man with long hair
remain in the minivan on the driver side. He was able to see the
two men as there is street lighting and the minivan’s overhead
lighting came on as the younger man left the minivan. [] Prechtl
was later shown two pictures of Milliard and he believes this was
the driver of the blue minivan, who remained in the minivan as
the younger man ran off.
Trial Court Opinion, 7/10/17, at 2-3.
On September 30, 2016, following a three-day jury trial, Milliard was
convicted of arson and related offenses. On November 18, 2016, the trial
court sentenced Milliard to an aggregate term of imprisonment of 26 to 57
years. On December 22, 2016, Milliard filed a timely post-sentence motion,
which the trial court denied in part and granted in part. Accordingly, on April
10, 2017, the trial court issued a subsequent order modifying Milliard’s
sentence.2
On May 8, 2016, Milliard filed a timely notice of appeal. Both Milliard
and the trial court have complied with Pa.R.A.P. 1925.3 On appeal, Milliard
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2 On April 10, 2017, the trial court issued an order denying Milliard’s motion
for a new trial and granting his motion for modification of sentence, such that
his conviction of the offense of arson endangering persons, 18 Pa.C.S.A. §
3301(a)(1)(ii), was merged with the offense of arson endangering persons,
18 Pa.C.S.A. § 3301(a)(1)(i), for the purposes of sentencing. The trial court
reasoned that it could not impose consecutive sentences on a defendant
convicted of two counts of arson endangering persons based on the same
episode or conduct for setting fire to residential property. See
Commonwealth v. Lopez, 663 A.2d 746 (1995). Milliard does not challenge
the legality and/or discretionary aspects his sentence on appeal.
3 In Milliard’s Pa.R.A.P. 1925(b) statement, he raised two issues: (1) whether
the evidence was sufficient to sustain a conviction for arson and related
offenses, and (2) whether the verdict was against the weight of the evidence.
However, Milliard has abandoned his sufficiency claim in his appellate brief.
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raises the following issue for our review: “Whether the lower court erred in
entering verdicts against the weight of the evidence as to all charges.” Brief
of Appellant, at 4.
In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme
Court set forth the following standards to be employed in addressing
challenges to the weight of the evidence:
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. Commonwealth v. Widmer, 744 A.2d 745, 751-52
(Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177, 1189
(Pa. 1994). 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. Widmer, 744 A.2d
at 752. 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.’” Id. (citation omitted). It has often
been stated that “a new trial should be awarded when 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.” Brown, 648 A.2d at
1189.
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. Brown, 648 A.2d at 1189. 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. Commonwealth v.
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Farquharson, 354 A.2d 545 (Pa. 1976). 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.
Widmer, 744 A.2d at 753.
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based on
a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Widmer, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co.,
625 A.2d 1181, 1184- 85 (Pa. 1993)).
Clay, 64 A.3d at 1054-1055.
Instantly, Milliard challenges the credibility of the Commonwealth’s
witnesses. Specifically, he avers that, generally, the witnesses’ testimonies
were fatally inconsistent with that of Anthony Milliard, who testified that
Milliard did not influence or solicit his actions, and thus the verdict was against
the weight of the evidence.
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“The weight of the evidence claim is exclusively for the finder of fact,
which is free to believe all, part or none of the evidence, and to assess the
credibility of the witnesses.” Commonwealth v. Lopez, 57 A.3d 74, 80-81
(Pa. Super. 2012) (emphasis added), quoting Commonwealth v. Johnson,
668 A.2d 608, 612 (Pa. 2003). This court “cannot substitute its judgment for
that of the jury on issues of credibility.” Id. at 81.
Anthony Milliard testified that during the early morning hours of May 30,
2012, he left Milliard’s home in Milliard’s minivan, and his father went to an
unnamed friend’s home. Anthony Milliard added that he alone went to the
West End Supermarket, parked the minivan there, and proceeded to use
gasoline and a burning rag to ignite Smith’s home on fire. Milliard’s recitation
of the facts at trial was inconsistent with his preliminary hearing testimony
and a written statement he provided to police on July 10, 2012, wherein he
implicated his father’s involvement in the events leading to the arson of
Smith’s home. See N.T., 9/28/16, at 9-13. Additionally, Thomas Prechtl, an
eyewitness, refuted Anthony Milliards trial testimony. Prechtl stated there
were two occupants, not one, in Milliard’s blue minivan, which he saw parked
outside the West End Supermarket on the early morning hours of May 30,
2012. Moreover, Ridgway Borough Police Department Officer Bridgette Asti
testified that Milliard confided in her that he “lit the fire, that he did it for his
dad.” Id. at 62. The jury also found credible the testimony of Parks, William
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Thorwart, Jordan4 and Donna Covel, Milliard’s then girlfriend, all of whom
corroborated the facts implicating Milliard’s involvement in the arson of
Smith’s home.
Herein, in reaching its verdict, the jury credited the foregoing witnesses’
testimony over that of Anthony Milliard, and thus, we may not disturb the
jury’s credibility determination in this regard. Lopez, supra. The record
supports the trial court’s reasoning, and we discern no abuse of discretion in
the trial court’s decision to deny relief on Milliard’s challenge to the weight of
the evidence. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa.
2003) (where trial court has ruled on weight claim, appellate court’s review is
limited to whether trial court palpably abused its discretion in ruling on weight
claim). Accordingly, Milliard’s weight claim must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2018
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4 Thorwart and Jordan both testified to Milliard’s use of the term “weenie roast”
in reference to a fire that he believed was occurring at Parks’ home. See N.T.
Trial, 9/28/16, at 22, 28. Jordan further testified that Milliard was “kind of
angry” upon learning that Parks’ home was not on fire, id. at 22, and Thorwart
added that he did not believe Milliard and Parks got along. Id. at 29.
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