Com. v. Vanderwende, R. ( 2016 )

J-A06041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT W. VANDERWENDE
Appellant No. 876 MDA 2015
Appeal from the Judgment of Sentence Entered December 17, 2014
In the Court of Common Pleas of Lebanon County
Criminal Division at No: CP-38-CR-0000002-2013
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 13, 2016
Appellant Robert W. Vanderwende appeals from the judgment of
sentence entered by the Court of Common Pleas of Lebanon County on
December 17, 2014, sentencing him to, inter alia, nine to twenty-three
months’ incarceration. For the reasons set forth below, we affirm.
The present case is before us after having followed a convoluted
history. On October 18, 2012, Detective Michael Dipalo of the Lebanon
County Detectives Bureau filed a criminal complaint against Appellant. The
complaint charged Appellant with theft by failure to make required
disposition of funds, theft by unlawful taking or disposition, dealing in
proceeds of unlawful activities, and two counts of theft by deception. 1 The
____________________________________________
1
18 Pa.C.S.A. §§ 3927(a), 3921(a), 5111(a)(1), and 3922(a)(1),(3),
respectively.
J-A06041-16
charges stemmed from Appellant’s conduct while working for Umberger’s of
Fontana, a business that sells, inter alia, agricultural equipment. After
holding the preliminary arraignment on November 5, 2012, the Magisterial
District Court continued Appellant’s preliminary hearing from November 14,
2012 until January 17, 2013.
The record indicates that the case remained beset by delays even after
Appellant waived the preliminary hearing. From March to October of 2013,
Appellant requested, and received, four continuances that postponed the
beginning of trial until the December 2013 trial term. Although Appellant
listed his case for trial on December 19, 2013, trial did not commence as
scheduled. Instead, two new continuances initiated at the Commonwealth’s
behest suspended the proceedings until the May 5, 2014 trial term.
On March 13, 2014, during the postponement prompted by the
Commonwealth, Appellant filed a Motion for Sanctions. The motion alleged
that the Commonwealth had failed to preserve and produce evidence
requested by Appellant. Specifically, Appellant maintained that the
Commonwealth had reviewed a Department of Transportation logbook
during its investigation but had returned the item to the victims without
photocopying it. The logbook subsequently disappeared. The trial court, on
March 26, 2014, denied Appellant’s motion but prohibited the
Commonwealth from using any testimony concerning the logbook during its
case-in-chief.
-2-
J-A06041-16
On April 23, 2014, Appellant requested, and received, another
continuance, further postponing trial until the June 2014 trial term. The trial
court issued an additional continuance on May 28, 2014 and scheduled trial
for the July 7, 2014 term. However, as the trial date approached, a witness
for the Commonwealth filed a Motion for a Protective Order, seeking to be
released from his subpoena due to a previously scheduled engagement. The
trial court granted the motion and once again postponed the trial, this time
until the August 4, 2014 term. Appellant thereafter filed a Motion to Amend
Order in which he asked that the trial court rescind its order granting the
protective order or, in the alternative, grant a continuance until the
September 8, 2014 trial term. Although the court denied Appellant’s
motion, it nevertheless continued the case until the September 2014 term.
The final continuance – the thirteenth of the case – took place on September
4, 2014 at the Commonwealth’s request. Finally, after numerous delays,
trial was set to begin on November 4, 2014.
Arguing that his speedy trial rights had been violated, Appellant filed a
Motion to Dismiss on October 6, 2014. The hearing on the matter convened
on October 22 whereupon the trial court denied Appellant’s motion.
Appellant swiftly filed a notice of appeal to this Court. We quashed the
appeal on October 30, 2014.
Before trial began on November 4, 2014, the trial court first
entertained a motion filed by MidAtlantic Farm Credit on behalf of one of its
employees. The motion sought the nullification of a subpoena that Appellant
-3-
J-A06041-16
had issued directing a Mary Henry to testify and produce documents.
Finding that service of the subpoena had been improper, the trial court
released Ms. Henry from the subpoena but directed that MidAtlantic produce
some of the requested documents. The final hurdle having been cleared,
Appellant’s case proceeded to trial. After two days of hearing testimony and
seeing evidence, the jury found Appellant guilty of all charges.
On appeal, Appellant raises the following seven issues for our
consideration:
1. Should the charges against [Appellant] have been dismissed
with prejudice after the Commonwealth failed to adduce
evidence or testimony to support its contention that certain time
was excludable and other time should be excused?
2. Did the trial court lack jurisdiction to hold [Appellant’s] trial
when [Appellant] had filed an appeal to the Superior Court on a
collateral order, which was quashed and the order quashing the
appeal was still pending [before] the Supreme Court?
3. Should the trial court have required a subpoenaed party to
appear at trial at [Appellant]’s request when the subpoenaed
party’s testimony was relevant and the subpoenaed party did not
object to service of the subpoena?
4. Should the trial court have entered sanctions against the
Commonwealth for failing to preserve and produce upon request
a [Department of Transportation] log, which documented the
alleged victim’s employee transporting equipment [Appellant]
was accused of stealing?
5. Should the trial court have granted [Appellant] a new trial
when evidence was discovered immediately after trial[,] which
shows the factual basis underlying the Commonwealth’s expert
witness’s opinion had been manipulated by the alleged victim?
6. Was the verdict entered by the jury against the weight of the
evidence produced at trial?
-4-
J-A06041-16
7. Should the trial court have granted [Appellant] a new trial
because the jury was unduly influenced to produce a verdict
because they were kept well after normal business hours?
Appellant’s Brief at 8-9.
We first turn to whether the trial court erred by denying Appellant’s
motion to dismiss pursuant to Pa.R.Crim.P. 600 (“Rule 600”). Our standard
of review is whether the trial court’s decision to deny the motion was an
abuse of discretion. Commonwealth v. Thompson, 136 A.3d 178, 182
(Pa. Super. 2016) (citation omitted). “An abuse of discretion,” we have
often observed, “is not a mere error in judgment, but, rather, involves bias,
ill will, partiality, prejudice, manifest unreasonableness, or misapplication of
law.” Commonwealth v. Hacker, 959 A.2d 380, 392 (Pa. Super. 2008).
We are also mindful that, in our review of the trial court’s decision in this
case, we may look no further than “the evidence on the record of the Rule
[600] evidentiary hearing, and the findings of the [trial] court.”
Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007)
(quoting Commonwealth v. Hunt, 858 A.2d 1234, 1238-39 (Pa. Super.
2004)).
The purpose of Rule 600 is to “prevent unnecessary prosecutorial
delay in bringing a defendant to trial.” Commonwealth v. Brock, 61 A.3d
1015, 1021 (Pa. 2013). To that end, the rule, in pertinent part, provides the
following:
[(A)](3) Trial in a court case in which a written complaint is filed
against the defendant, when the defendant is at liberty on bail,
-5-
J-A06041-16
shall commence no later than 365 days from the date on which
the complaint is filed.
...
(B) For the purpose of this rule, trial shall be deemed to
commence on the date the trial judge calls the case to trial, or
the defendant tenders a plea of guilty or nolo contendere.[2]
Pa.R.Crim.P. 600(A)(3) (rescinded October 1, 2012, effective July 1, 2013).3
Therefore, a defendant may move to dismiss his or her charges if trial does
not begin within the 365-day period specified in Rule 600(A)(3).
Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super. 2013).
In the present case, Appellant’s trial began 746 days after the filing of
the criminal complaint. However, the mere fact of such a delay does not
necessarily entitle Appellant to the dismissal of his charges. Id. Indeed,
“Rule [600] was not designed to insulate the criminally accused from good
faith prosecution delayed through no fault of the Commonwealth.” Ramos,
936 A.2d at 1100; see also Pa.R.Crim.P. 600(C) (excluding various periods
of delay from the 365-day period prescribed by Rule 600(A)(3)).
To determine whether dismissal is required under Rule 600, a
court must first calculate the “mechanical run date,” which is
365 days after the complaint was filed. Rule 600(C) addresses
____________________________________________
2
Relevant to the present case, “trial commences when the trial judge
determines that the parties are present and directs them to proceed to voir
dire . . . or to some other such first step in the trial.” Pa.R.Crim.P. 600 cmt.
3
On October 1, 2012, our Supreme Court adopted a new version of Rule
600 that went into effect on July 1, 2013. Brock, 61 A.3d at 1016 n. 2.
Because the charges in this case were filed on October 18, 2012, we apply
the former version of the rule.
-6-
J-A06041-16
situations where time can be excluded from the computation of
the deadline. Case law also provides that a court must account
for any “excludable time” and “excusable delay.” Excludable time
is delay that is attributable to the defendant or his counsel.
Excusable delay is delay that occurs as a result of circumstances
beyond the Commonwealth’s control and despite its due
diligence.
Goldman, 70 A.3d at 879 (internal citations omitted). Adding “excludable
time” to the mechanical run date produces the “adjusted run date.” Ramos,
936 A.2d at 1101. Similarly, the “final run date” is the adjusted run date
combined with any periods of “excusable delay.” Id. at 1103. “[T]he only
occasion requiring dismissal is when the Commonwealth fails to commence
trial within 365 days of the filing of the written complaint, taking into
account all excludable time and excusable delay.” Goldman, 70 A.3d 879-
80.
The record indicates that Detective Dipalo filed the criminal complaint
against Appellant on October 18, 2012. The mechanical run date was
therefore October 18, 2013. With regard to “excludable time,” we note that
Appellant received multiple continuances during the pendency of his case.
Indeed, Appellant conceded at the Rule 600 hearing that his first three
continuances spanned a period of 274 days. N.T., Rule 600 Hearing,
10/22/14, at 4. Another two continuances, granted on April 23 and May 28,
2014, postponed trial by an additional 63 days.4 Appellant received a final,
____________________________________________
4
In his motion to dismiss, as well as in his brief to this Court, Appellant
disputes whether the court issued the May 28, 2014 continuance at his
direction. See Motion to Dismiss Pursuant to Rule 600, 10/3/14, at ¶¶ 15-
(Footnote Continued Next Page)
-7-
J-A06041-16
35-day continuance on July 23, 2014. In light of the delays caused by
Appellant, the adjusted run date was October 27, 2014.
As indicated above, Appellant’s trial did not begin until November 3,
2014, approximately one week after the adjusted run date. Yet, calculating
the adjusted run date is but the second of a three-step inquiry. To
determine the final run date of Appellant’s case, we must take into account
any periods of “excusable delay.” Goldman, 70 A.3d at 879-80. Here, we
need look no further than the 64-day continuance occasioned by the
Magisterial District Judge (“MDJ”) early in Appellant’s case. At the Rule 600
hearing, the trial court asked Appellant whether those 64 days were
“attributable to the Commonwealth.” N.T., Rule 600 Hearing, 10/22/14, at
5. In response, Appellant conceded that the “court time” was not
attributable to the Commonwealth. Id. In making such a statement,
Appellant admitted that the time qualified as “excusable delay” for purposes
of Rule 600.5 It is clear that adding 64 days to the adjusted run date results
_______________________
(Footnote Continued)
16, 26, 36, 38 (“Motion to Dismiss”); Appellant’s Brief at 27. As explained in
footnote 6, infra, omitting the delay due to the May 28 continuance does not
change our resolution of Appellant’s Rule 600 claim.
5
On appeal, Appellant claims that the Commonwealth did not produce any
evidence that it was duly diligent during the MDJ’s 64-day continuance.
Appellant’s Brief at 23-25. Whatever the merits of this assertion, Appellant
failed to raise it at the time of the Rule 600 hearing and cannot now advance
the argument by including it in his appellate brief. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”).
-8-
J-A06041-16
in a final run date of December 30, 2014.6 Appellant’s trial date, therefore,
was well within the parameters of Rule 600. Accordingly, we conclude that
the trial court did not abuse its discretion by denying Appellant’s motion to
dismiss.
With his second issue, Appellant contends that the trial court lacked
the jurisdiction necessary to proceed to trial in his case. See Appellant’s 34-
40. This is so, Appellant urges, because he filed an appeal on October 28,
2014 in which he challenged the trial court’s disposition of his Rule 600
motion. Id. at 34-35. Addressing this same argument prior to the present
appeal, the trial court concluded that the October 2014 appeal was from an
interlocutory order and did not preclude the court from going forward with
Appellant’s case. Trial Court Opinion, 4/21/15, at 10-11. We agree.
“[S]ubject matter jurisdiction has been defined as the court’s power to
hear cases of the class to which the case at issue belongs.” Paluti v.
Cumberland Coal LP, 122 A.3d 418, 423 (Pa. Super. 2015) (citation
omitted). When a party challenges a court’s “power” to hear his or her case,
our standard of review is de novo and our scope of review plenary. Id.Appellant accurately notes that an appeal typically deprives the lower court
____________________________________________
6
Excluding the time attributable to the May 28 continuance, Appellant
calculated the adjusted run date as falling on September 19, 2014. See
Motion to Dismiss, at ¶ 23. However, factoring in the “excusable delay” of
64 days produces a final run date of November 22, 2014. Appellant’s trial
began on November 3, 2014; thus, the trial court properly denied the
motion to dismiss.
-9-
J-A06041-16
of jurisdiction. Appellant’s Brief at 35 (citing Pa.R.A.P. 1701(a)). However,
a trial court may “[p]roceed further in any matter in which a non-appealable
interlocutory order has been entered, notwithstanding the filing of a notice
of appeal or a petition for review of the order.” Pa.R.A.P. 1701(b)(6). The
legitimacy of Appellant’s trial therefore depends on whether the trial court’s
denial of the Rule 600 motion was an interlocutory order.7
Relying upon Pa.R.A.P. 313(b), Appellant contends that the trial
court’s denial of his Rule 600 motion was an appealable collateral order.
See Appellant’s Brief at 38-39. Notably absent from Appellant’s analysis,
however, is this Court’s decision in Commonwealth v. McPherson, 533
A.2d 1060 (Pa. Super. 1987). Upon facts very similar to those found in the
present case, we stated in McPherson that an order “refusing to dismiss a
case on Rule [600] grounds” is interlocutory and non-appealable.8
McPherson, 533 A.2d at 1062. Our Supreme Court has likewise held that
an order denying a defendant’s motion to dismiss pursuant to Rule 600 is
____________________________________________
7
Appellant acknowledges in his brief that the trial court’s jurisdiction “hinges
upon the status ascribed to the order appealed.” Appellant’s Brief at 37.
8
At the time of our decision in McPherson, Pa.R.Crim.P. 1100 contained
the substance of what is now Pa.R.Crim.P. 600. As our Supreme Court has
noted, “[t]he relevant exclusionary provisions of Rule 600 and former Rule
1100 are materially the same.” Commonwealth v. Baird, 975 A.2d 1113,
1115 n. 1 (Pa. 2009). “Accordingly, for the sake of convenience and clarity,
we will substitute the applicable numbering nomenclature of Rule 600 for
that of old Rule 1100.” Commonwealth v. Sloan, 907 A.2d 460, 463 n.5
(Pa. 2006).
- 10 -
J-A06041-16
not entitled to immediate review. Commonwealth v. Myers, 322 A.2d
131, 133 (Pa. 1974); see also Commonwealth v. Johnson, 705 A.2d 830,
833 (Pa. 1998) (“As long as there has been a hearing in the court below on
the speedy trial issue, the right to a speedy trial can be adequately
protected in a review following trial.”). Thus, Appellant’s October 2014
appeal was from an interlocutory order and did not deprive the trial court of
jurisdiction. As a result, Appellant’s trial and judgment of sentence are not
legal nullities. Cf. Commonwealth v. Salley, 957 A.2d 320 (Pa. Super.
2008).
Appellant next contends that the trial court erred by quashing the
subpoena issued to Mary Henry. Appellant’s Brief at 40-44. We review the
trial court’s grant of the motion to quash for an abuse of discretion.
Branham v. Rohm and Haas Co., 19 A.3d 1094, 1102 (Pa. Super. 2011).
“So long as there is evidence which supports the lower court’s decision, it
will be affirmed.” Id. at 1103 (quoting In re Subpoena No. 22, 709 A.2d
385, 387 (Pa. Super. 1998)).
In his brief, Appellant insists that Ms. Henry should have been ordered
to comply with the subpoena because the method of service had been
proper. Appellant’s Brief at 41-44. Appellant’s argument is unavailing. The
record shows that Ms. Henry was an employee of MidAtlantic Farm Credit
(“MidAtlantic”), which falls under the auspices of the Farm Credit
Administration (“FCA”). The FCA, a federal agency, has issued regulations
outlining the procedures necessary to secure the testimony of FCA
- 11 -
J-A06041-16
employees as well as the production of documents. See generally 12
C.F.R. §§ 602.19-602.21. Here, those regulations supplanted the measures
typically required to obtain witness testimony. See First Fed. Sav. & Loan
Ass'n of Hazleton v. Office of State Treasurer, Unclaimed Prop.
Review Comm., 669 A.2d 914, 916 (Pa. 1995) (“Federal regulations have
no less of a preemptive effect than federal statutes.”). Counsel for
MidAtlantic twice apprised Appellant of the FCA regulations: first in
December of 2013 and again in April of 2014. The record, however, is
devoid of any indication that Appellant complied with the pertinent
regulations to secure Ms. Henry’s testimony. See N.T., Jury Trial, 11/4/14,
at 7-10. We therefore conclude that the trial court did not abuse its
discretion in quashing the subpoena issued to Mary Henry.9
We next address Appellant’s claim that the trial court should have
entered sanctions against the Commonwealth for failing to supply Appellant
with a Department of Transportation logbook (“the logbook”) in discovery.
Courts, by rule, have the authority to impose penalties when there are
discovery violations.
____________________________________________
9
We note that the trial court premised its decision to quash the subpoena on
Appellant’s failure to serve Mary Henry individually. N.T., Jury Trial,
11/4/14, at 12, 14, 16-17. Nonetheless, we may “affirm an order if it is
correct for any reason, regardless of the reason upon which the lower court
relied for its decision.” Salazar v. Allstate Ins. Co., 702 A.2d 1038, 1045
n. 13 (Pa. 1997).
- 12 -
J-A06041-16
If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply
with this rule[, which governs discovery matters,] the court may
order such party to permit discovery or inspection, may grant a
continuance, or may prohibit such party from introducing
evidence not disclosed, other than testimony of the
defendant, or it may enter such other order as it deems just
under the circumstances.
Pa.R.Crim.P. 573(E) (emphasis added). In the present case, the trial court
denied Appellant’s motion for sanctions but forbade the Commonwealth from
“using any testimony concerning [the logbook].” Trial Court Order, 3/26/14.
We will not disrupt an order imposing sanctions unless, in doing so, the trial
court abused its discretion. Commonwealth v. Jordan, 125 A.3d 55, 65
(Pa. Super. 2015).
According to Appellant, the trial court erred by failing to impose
sanctions. Appellant’s Brief at 4. However, as indicated above, the trial
court did sanction the Commonwealth by prohibiting it from introducing
testimony related to the logbook. That the penalty did not meet with
Appellant’s satisfaction does not render the trial court’s decision an abuse of
discretion. Appellant does not contend, let alone prove, that the
Commonwealth acted intentionally to deprive him of potentially exculpatory
evidence. In fact, Appellant acknowledges that the loss of the logbook was
entirely beyond the Commonwealth’s control. Appellant’s Brief at 51. Under
such facts, it is difficult to perceive an abuse of discretion when the trial
court selected a remedy clearly enumerated in Pa.R.Crim.P. 573(E). We
- 13 -
J-A06041-16
therefore conclude that the trial court did not abuse its discretion in its
choice of remedy.
With his fifth issue, Appellant contends that he should receive a new
trial because of evidence discovered “days after trial.” Appellant’s Brief at
53-59. Before addressing the merits of Appellant’s argument, we first
review the facts relevant to Appellant’s claim.
At trial, the Commonwealth presented the testimony of Dennis Houser
who was, inter alia, a certified forensic accountant. See N.T., Jury Trial,
11/4/14, at 263-64, 273-94. On cross-examination, Appellant questioned
Houser as to the accuracy of the financial documents upon which Houser had
based his expert opinion.10 Id. at 301-05. Houser indicated that the
records were accurate. Id. Later, Donald Umberger, one of Appellant’s
victims, testified that a certain $50,000 entry in the business’s accounts
receivable reflected receipt of a payment that Appellant had made. Id. at
____________________________________________
10
Appellant claims in his brief that he asked Houser whether he had “verified
each of the entries contained in the account receivable history” and that
Houser replied that he had not. Appellant’s Brief at 54. However, Appellant
has not provided any citation to the record in support of his assertion and
our review of the trial transcript suggests that Appellant never asked Houser
such a question. Moreover, this Court will not “scour the record to find
evidence to support an argument.” Commonwealth v. Beshore, 916 A.2d
1128, 1140 (Pa. Super. 2007); Pa.R.A.P 2119(c) (if reference is made to
evidence of record, “the argument must set forth, in immediate connection
therewith, or in a footnote thereto, a reference to the place in the record
where the matter referred to appears[.]”
- 14 -
J-A06041-16
451. He further stated that he believed the money had been the proceeds of
a loan procured by Appellant. Id. at 458-59. Appellant then questioned the
accuracy of the accounts receivable during Umberger’s cross-examination.
Id. at 459-66. As previously mentioned, the jury ultimately found Appellant
guilty of all charges.
On November 14, 2014, Appellant filed a motion for mistrial.11
Appellant asserted in this motion that the Commonwealth had failed to
disclose materials that suggested that Umberger had been incorrect about
the source of the $50,000 reflected in the accounts receivable. Motion for
Mistrial, 11/14/14, at ¶¶ 11-22. Appellant further claimed that the $50,000
had come from a transaction between Umberger, Agricredit Acceptance, LLC
(“Agricredit”), and a Wayne Thiel. Id. at ¶¶ 13-17. To substantiate his
assertions, Appellant produced documents indicating that Umberger had
received the $50,000 from Agricredit after assigning to it a contract between
himself and Thiel. Id. at Exhibits B, C. Nevertheless, the trial court denied
Appellant’s Motion for Mistrial on November 19, 2014.
During the present appeal, Appellant maintains that he is entitled to a
new trial because putative “after-discovered evidence,” in the form of the
agreements between Umberger, Thiel, and Agricredit, casts doubt upon the
____________________________________________
11
As noted by the trial court prior to the present appeal, Appellant’s motion
was, by definition, not one for a mistrial. Trial Court Opinion, 4/21/15, at 2
n.2. In effect, Appellant filed a post-trial motion requesting a new trial.
- 15 -
J-A06041-16
information underlying Dennis Houser’s expert testimony. Appellant’s Brief
at 57. “When we examine the decision of a trial court to grant [or deny] a
new trial on the basis of after-discovered evidence, we ask only if the court
committed an abuse of discretion or an error of law which controlled the
outcome of the case.” Commonwealth v. Padillas, 997 A.2d 356, 361
(Pa. Super. 2010).
To merit a new trial due to after-discovered evidence, Appellant must
establish that the evidence satisfies each of the following elements:
The evidence: (1) could not have been obtained prior to trial by
exercising reasonable diligence; (2) is not merely corroborative
or cumulative; (3) will not be used solely to impeach a witness's
credibility; and (4) would likely result in a different verdict.
Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014). Here, it is
apparent that the sole use of the evidence will be to impeach credibility. In
fact, Appellant acknowledges that the “import of the accounts receivable
history lies in the opinion and testimony of . . . Dennis Houser.” Appellant’s
Brief at 54. Appellant likewise alleges that the after-discovered evidence
means that Houser’s report and testimony “must be rejected in its entirety”
because “one entry of the accounts receivable history has been shown
false.” Appellant’s Brief at 57. Yet, Appellant fails to explain how the
intended use of this evidence is anything but an impeachment of Houser’s
credibility. Credibility is “the quality that makes something (as a witness or
some evidence) worthy of belief.” Black’s Law Dictionary (10th ed. 2014).
- 16 -
J-A06041-16
The gravamen of Appellant’s argument is that the possibly erroneous
entry in the accounts receivable renders Houser unworthy of belief. See
Appellant’s Brief at 57. Appellant, therefore, wishes to use the evidence
only as a means to impeach the credibility of Dennis Houser. Accordingly,
Appellant fails to satisfy the third requirement for a new trial due to after-
discovered evidence.12 The trial court did not abuse its discretion in denying
Appellant a new trial.
Turning now to Appellant’s penultimate issue, we address whether the
jury’s verdict was against the weight of the evidence. Appellant first
hazarded a weight of the evidence claim in a post-sentence motion for a new
trial. See Motion for New Trial, 12/22/14, at ¶¶ 6-15. The trial court denied
the motion on April 21, 2015.
[W]here the trial court has ruled on the weight claim below, an
appellate court’s role is not to consider the underlying question
of whether the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the trial court
palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).
____________________________________________
12
Parenthetically, we also note that it is doubtful that Appellant would
satisfy the fourth element. The record shows that Houser based his report
and testimony on numerous documents, not merely the accounts receivable
history. Contra Appellant’s Brief at 58. Indeed, Houser testified that he
reviewed hundreds of pages of material while compiling his report and
formulating his opinion. N.T., Jury Trial, 11/4/14, at 277. It is mere
speculation to think that a single entry on a single document would have
likely changed the outcome of Appellant’s trial.
- 17 -
J-A06041-16
We have oft cited the following principles when undertaking an
examination of a trial court’s denial of a motion for a new trial based on a
weight of the evidence claim:
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, 744 A.2d 745, 751-52 (Pa. 2000). Applying
these standards to the present case, we conclude that Appellant’s weight
claim is no more than an invitation to “sit as the thirteenth juror.”
Appellant’s argument is simply that the jury “overlooked” important facts
and “ignored” allegedly faulty testimony. See, e.g., Appellant’s Brief at 60-
62. However, “the finder of fact . . . is free to believe all, part, or none of
the evidence and to determine the credibility of the witnesses.”
Commonwealth v. Forbes, 867 A.2d 1268, 1272-73 (Pa. Super. 2005)
(citation omitted). Thus, the trial court did not abuse its discretion by
denying Appellant’s motion for a new trial due to the weight of the evidence.
Finally, Appellant maintains that he did not have the benefit of an
impartial jury. See Appellant’s Brief at 67-70. Relevant to this allegation,
the trial court released the jury for deliberations at 3:47 p.m. on November
- 18 -
J-A06041-16
5, 2014. N.T., Jury Trial, 11/4/14, at 468. Appellant maintains that the jury
then reported at 5:00 p.m. that it was not close to reaching a verdict.
Appellant’s Brief at 67. In response, the trial court ordered dinner for the
jury and indicated that it would hold the jury until it reached a decision. 13
Id. At 6:41 p.m., the jury entered the courtroom and delivered its verdict:
guilty on all counts. N.T., Jury Trial, 11/4/14, at 469-70. According to
Appellant, the possibility of staying late into the night acted as an improper,
extraneous influence and thereby deprived him of an impartial jury.
Appellant’s Brief at 68-70.
“To prevail on a claim that an extraneous influence compromised the
impartiality and integrity of the jury, Appellant must prove the extraneous
influence caused a reasonable likelihood of prejudice.” Commonwealth v.
Bomar, 104 A.3d 1179, 1211 (Pa. 2014) (citation and internal quotation
marks omitted). Here, Appellant fails to satisfy his burden. Indeed,
Appellant confesses in his brief that there is “no proof that holding [the]
jurors as late as necessary for them to reach a verdict . . . resulted in
influence on them.” Appellant’s Brief at 69. Similarly absent from
Appellant’s brief is any citation to decisions wherein courts have found that
holding a jury until it reaches a decision exerts an improper influence upon
____________________________________________
13
As noted by Appellant, the jury’s report and the trial court’s statement do
not appear in the transcript. Appellant’s Brief at 67. However, the trial
court’s opinion does not dispute the factual assertions made by Appellant.
See Trial Court Opinion, 4/21/15, at 12-13.
- 19 -
J-A06041-16
the deliberative process. Thus, we conclude that Appellant is not entitled to
a new trial because the trial court did not err by holding the jury past normal
courthouse hours.
In sum, based on the foregoing, none of the seven errors alleged by
Appellant entitles to him to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2016
- 20 -