In the Interest of: R.P., a minor, Appeal of: R.P. ( 2015 )

J-S17022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF R.P., JR., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.P., JR.,
Appellant No. 1087 WDA 2014
Appeal from the Dispositional Order April 29, 2014
In the Court of Common Pleas of Allegheny County
Juvenile Division at No(s): JID#89657-A, Docket #2012-12
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 1, 2015
Appellant, R.P., Jr., appeals from the April 29, 2014 dispositional
order1 entered by the Allegheny County Court of Common Pleas. We affirm.
The juvenile court summarized the facts of the case, as follows:
Homestead Police Officers were conducting surveillance of a
house known to be the sales location for a specific brand of
stamped heroin called AR15. Trial Transcript 04/01/2014 pp.
10-11. The officers obtained information from two separate
sources that an individual by the name of Dorian Richardson
Serrano, the subject of an eventual search warrant, was selling
heroin out of that same house. Id. at 10, 35. The officers
obtained a search warrant and executed said warrant on
February 10, 2014 at approximately 4:00 p.m. at the known
heroin location. Id. at 12. Several officers knocked and
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
We have corrected the caption to reflect that the appeal is from the
dispositional order.
J-S17022-15
announced their presence at the house. When there was no
response, one officer breached the door with the batting [sic]
ram. Id. at 13, 74. The officers went into the house and began
questioning the female sitting in the living room. They then
began to search the house while calling out “police” and “search
warrant.” From the search, it was unclear who lived in the
house. Id. at 43. Officer Matt Fusco was the first or second
officer into the house where Appellant was located while Officer
Ronald DePelligrin was behind Officer Fusco when entering the
house and subsequently the back bedroom. Both officers saw
four male juveniles in the back bedroom of the house, one being
Appellant. Id. at 14-16, 47. Officer Fusco saw what was later
determined to be a replica or BB gun lying on the floor in the
middle of the room, thus he did not enter the room right away,
but remained in the doorway. When Officer Fusco looked into
the room one individual was sitting in the middle of the bed, one
individual was sitting in the corner of the room, both with their
hands raised upon seeing Officer Fusco and Appellant and his co-
defendant were sitting on the edge of the bed leaning into the
closet, both with at least one hand in the closet. Both Appellant
and his co-defendant were bending down near the bottom of the
closet moving their arms back and forth in a motion consistent
with moving items. Id. at 52, 54-56, 79. Officer Fusco ordered
Appellant and his co-defendant to put their hands up and they
complied. The officers secured or detained the males in the
room and then they were handcuffed and moved from the
bedroom one by one. Officer DePelligrin searched the closet and
Officer Fusco searched the other side of the small bedroom. Id.
at 16, 49, 64. Officer DePelligrin found 6.21 grams of heroin
and drug paraphernalia on the bottom of the closet, towards the
top of the items in the closet, but settled down a bit. Id. at 21-
23, 27, 70. A .38 Special caliber Ruger revolver, a .380 auto
caliber Bersa pistol and a “magazine,” and four .380 caliber
cartridges were also found in the bottom of the closet and were
in plain view to Officer Fusco. The firearms were both found to
be in good operating condition. Id. at 60, 67-68.
Juvenile Court Opinion, 9/19/14, at 2–4.
A juvenile petition filed on February 12, 2014, charged Appellant with
one count of receiving stolen property, two counts of carrying a firearm
-2-
J-S17022-15
without a license, and one count of possession of heroin. Present counsel
was appointed and entered his appearance on February 25, 2014. The
juvenile court held a delinquency hearing for Appellant and his co-defendant,
T.W., on April 1, 2014. Appellant was adjudicated delinquent of one count of
carrying a firearm without a license and one count of possession of heroin
and was detained at Shuman Center. Disposition was deferred.
On April 8, 2014, the juvenile court held a hearing following which
Appellant was placed on electronic monitoring and released to his mother’s
custody. Disposition was deferred once again. On April 29, 2014, the
juvenile court held a dispositional hearing and committed Appellant to
Wilkinsburg Community Intensive Supervision Program (“CISP”). On May 9,
2014, Appellant filed a Post-Disposition Motion for Reconsideration Pursuant
to Pa.R.J.P. 620, which was denied by operation of law. Appellant filed a
timely notice of appeal to this Court on July 8, 2014. Both Appellant and the
juvenile court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
I. Whether the trial court erred in adjudicating R.P., Jr.
delinquent of possession of a controlled substance and
carrying a firearm without a license at T178506 when the
evidence presented by the Commonwealth was insufficient
to establish the elements of either crime beyond a
reasonable doubt?
II. Whether the trial court’s delinquency adjudications of R.P.,
Jr. for possession of a controlled substance and carrying a
firearm without a license at T178506 are against the
weight of the evidence presented at trial?
-3-
J-S17022-15
Appellant’s Brief at 3.
Our standard of review of dispositional orders in juvenile proceedings
is settled. The Juvenile Act grants broad discretion to juvenile courts in
determining appropriate dispositions. In re C.A.G., 89 A.3d 704, 709 (Pa.
Super. 2014). Indeed, the Superior Court will not disturb the lower court’s
disposition absent a manifest abuse of discretion. In the Interest of J.D.,
798 A.2d 210, 213 (Pa. Super. 2002).
Appellant first argues that there was insufficient evidence to find that
he committed the delinquent acts of carrying a firearm without a license and
possession of heroin. Appellant’s Brief at 10. Specifically, Appellant alleges
that the Commonwealth failed to provide sufficient evidence that Appellant
carried an unlicensed firearm concealed on his person and failed to establish
that he had dominion or control of the heroin to support a finding of
constructive possession. Id. at 11–18. We will address these arguments in
reverse order.
In evaluating a challenge to the sufficiency of the evidence supporting
an adjudication of delinquency, our standard of review is as follows:
When a juvenile is charged with an act that would
constitute a crime if committed by an adult, the Commonwealth
must establish the elements of the crime by proof beyond a
reasonable doubt. When considering a challenge to the
sufficiency of the evidence following an adjudication of
delinquency, we must review the entire record and view the
evidence in the light most favorable to the Commonwealth.
In determining whether the Commonwealth presented
sufficient evidence to meet its burden of proof, the test to be
-4-
J-S17022-15
applied is whether, viewing the evidence in the light most
favorable to the Commonwealth and drawing all reasonable
inferences therefrom, there is sufficient evidence to find every
element of the crime charged. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by wholly circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not be absolutely incompatible with a
defendant’s innocence. Questions of doubt are for the hearing
judge, unless the evidence is so weak that, as a matter of law,
no probability of fact can be drawn from the combined
circumstances established by the Commonwealth.
In re V.C., 66 A.3d 341, 348-349 (Pa. Super. 2013) (quoting In re A.V., 48
A.3d 1251, 1252–1253 (Pa. Super. 2012)). The finder of fact is free to
believe some, all, or none of the evidence presented. Commonwealth v.
Gainer, 7 A.3d 291, 292 (Pa. Super. 2010).
We address Appellant’s contention that the evidence was insufficient to
support his conviction of possession of heroin. We note that because the
heroin was not found on Appellant’s person, the Commonwealth was
required to prove constructive possession to establish the offense.
Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa. Super. 2011).
Constructive possession is a legal fiction, a pragmatic construct
to deal with the realities of criminal law enforcement.
Constructive possession is an inference arising from a set of
facts that possession of the contraband was more likely than not.
We have defined constructive possession as conscious dominion.
We subsequently defined conscious dominion as the power to
control the contraband and the intent to exercise that control.
To aid application, we have held that constructive possession
may be established by the totality of the circumstances.
-5-
J-S17022-15
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (internal
quotation marks and citation omitted). Additionally, it is possible for two
people to have joint constructive possession of an item of contraband.
Commonwealth v. Hopkins, 67 A.3d 817, 820–821 (Pa. Super. 2013).
Appellant posits that he did not have constructive possession of the heroin
found in the closet. For the reasons that follow, our review of the record
compels the contrary conclusion.
Without further explanation, Appellant asserts that the trial court
“relied too heavily” on Appellant’s purported arm movements in the closet.
Appellant’s Brief at 18. We remind Appellant that it is within the province of
the fact-finder to determine the weight to be accorded each witness’s
testimony and to believe all, part, or none of the evidence.
Commonwealth v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007).
Appellant contends that the instant case is similar to Commonwealth
v. Valette, 613 A.2d 548 (Pa. 1992). Appellant’s Brief at 18. In truth,
Valette is factually dissimilar to the instant case and does not provide
support for Appellant’s claim. In Valette, the appellant was sitting in the
living room when police entered to execute a search warrant. In a second-
floor bedroom of the two-floor apartment, police discovered a closed
briefcase hidden beneath floorboards containing 283 grams of cocaine, a
sifter, plastic bags, and a cellular telephone. Police found identification for
other individuals in the apartment, but found none for the appellant.
-6-
J-S17022-15
Nothing incriminating was found within the room where the appellant was
situated at the time of the raid, and no contraband was found on his person.
Id. at 549. We reject Appellant’s suggestion that Valette supports his
position.
Here, Appellant was with three other male juveniles in a bedroom on
the first floor of a converted house in Homestead, Pennsylvania, when police
executed a search warrant based on drug activity previously observed at the
residence. N.T., 4/1/14, at 10–11. Homestead Police Officer Ronald
DePelligrin testified that he and six other police officers executed the
warrant on February 10, 2014. Id. at 6, 12. Homestead Detective Matt
Fusco testified that two of the juveniles were brothers who resided at the
house and were known to him. Id. at 50, 52. The other two juveniles in the
room were Appellant and T.W., Appellant’s co-defendant; they did not live at
the house. Id. at 50–53. Appellant and T.W. were leaning into the closet,
bent down to the floor, with their heads, torsos, and right arms in the closet.
Id. at 55–58. Detective Fusco described Appellant as leaning into the closet
with both hands in the closet and with his arms moving back and forth. Id.
at 56–57. Appellant’s and T.W.’s arms were moving back and forth in the
bottom of the closet making motions consistent with an attempt to conceal
items in the clothes and the other objects strewn across the closet floor. Id.
at 18, 54, 59. In comparison, the other two males already had their hands
up when Officer Fusco entered the bedroom. Id. at 52.
-7-
J-S17022-15
Officer DePelligrin searched the left half of the room, which included
the closet, and Detective Fusco searched the right half, which included the
bed. N.T., 4/1/14, at 17, 60. Amidst the clutter on the closet floor, Officer
DePelligrin found two firearms on the left side and two bundles of heroin
toward the center. Id. at 18.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, it can be inferred that Appellant and his companions heard
the commotion caused by the police breaking in the door and shouting that
they were executing a search warrant. It also can be reasonably inferred
that Appellant and T.W. were attempting to secrete the drugs when police
arrived at the bedroom door and observed them with their arms in the closet
making motions consistent with hiding something. This raises a clear
inference of constructive possession, as it demonstrated Appellant’s ability to
exercise conscious control or dominion over the illegal substance and the
intent to exercise that control. Commonwealth v. Johnson, 26 A.3d 381,
1093–1094 (Pa. 2011) (intent to maintain conscious dominion may be
inferred from totality of the circumstances).
The juvenile court analyzed the evidence and found that it supported
the conclusion “that Appellant and his co-defendant had equal access and
control over the contraband . . . .” Juvenile Court Opinion, 9/19/14 at 6.
The juvenile court continued, “The Commonwealth offered a lab report
identifying what was found in that closet as heroin. Further, the
-8-
J-S17022-15
Commonwealth proved Appellant’s constructive possession of the heroin
through his access and proximity to the heroin and his movements
demonstrating both intent and ability to assert control over the controlled
substance.” Id. We agree with the juvenile court and reject Appellant’s
claim.
We next address Appellant’s argument that there is insufficient
evidence of record to support his conviction of carrying a firearm without a
license. The pertinent statutory provision of the Pennsylvania Uniform
Firearms Act provides in relevant part as follows:
§ 6106. Firearms not to be carried without a license
(a) Offense defined.--
(1) Except as provided in paragraph (2) [irrelevant to the
instant case], any person who carries a firearm in any
vehicle or any person who carries a firearm concealed on
or about his person, except in his place of abode or fixed
place of business, without a valid and lawfully issued
license under this chapter commits a felony of the third
degree.
18 Pa.C.S. § 6106(a)(1).
Pursuant to 18 Pa.C.S. § 6106(a)(1), the Commonwealth was required
to establish that either Appellant carried a firearm in a vehicle; or carried a
firearm concealed on or about his person when he was not in his home or
place of business; and that he did not have a license to carry a firearm.
Appellant challenges the Commonwealth’s alleged failure to prove “that the
-9-
J-S17022-15
firearm[] [was] concealed on or about Appellant’s person.” Appellant’s Brief
at 14.
Utilizing the same constructive-possession analysis it advanced in
support of Appellant’s contention that insufficient evidence supported his
conviction for possession of heroin, the juvenile court found as follows:
The Commonwealth proved, at trial, through the credible
testimony of the police officers and the admitted lab reports that
the weapons found in the closet of the bedroom were operable
firearms capable of firing the ammunition for which it was
manufactured. Trial testimony also supported that Appellant
was not the age of majority, and thus could not have a license to
the firearms found in the bedroom closet. Further, it was
determined through testimony that at least one of the weapons
was stolen. Because the weapons were not found on the
Appellant’s person, the Commonwealth argued that there was
constructive possession, or that Appellant had both the intent
and ability to control the firearm.
Juvenile Court Opinion, 9/19/14, at 4–5. The juvenile court found that “the
surrounding facts strongly support[ed]” its conclusion that Appellant had
constructive possession of the firearm. Id. at 6.
The juvenile court relied upon Commonwealth v. Smith, 392 A.2d
727 (Pa. Super. 1978), to support its constructive-possession conclusion.2
In Smith, the defendant secreted a loaded pistol and drugs in a bag on a
public street. The paper bag was merely “in proximity” to the appellant, in
____________________________________________
2
We acknowledge that the conviction in Smith was pursuant to the now-
repealed statute of carrying a firearm in public without a license.
Nevertheless, the court’s analysis in that case is relevant to demonstrate the
requisite power and intent to control the contraband upon which the
convictions were based. Id. at 729.
- 10 -
J-S17022-15
that it was on the pavement where the appellant was standing. The
arresting officer observed the appellant bend down near his left foot and
then resume a standing position. We concluded that this testimony
“convincingly demonstrated the requisite power and intent to control the
contraband upon which the convictions are based.” Id. at 729.
In the case sub judice, the firearm, without doubt, was not found in a
vehicle. It also is not disputed that the apartment was not Appellant’s place
of abode, the gun indeed was a firearm, and due to Appellant’s minority, he
could not possess a license for a firearm. Thus, the remaining words of the
statute required proof that Appellant concealed the firearm on or about his
person. 18 Pa.C.S. § 6106(a)(1). Merriam–Webster’s Dictionary defines
“about” as “reasonably close to” and “in the vicinity.” Merriam–Webster’s
Online Dictionary, http://www.merriam-webster.com/dictionary/about.
Webster’s New Universal Unabridged Dictionary defines about as “near;
close to.” Webster’s New Universal Unabridged Dictionary 6 (1996). The
Commonwealth’s demonstration that Appellant constructively possessed the
firearms by showing his ability to exercise conscious control or dominion
over them and the intent to exercise that control is sufficient to prove the
weapons were concealed “about the person” as required by 18 Pa.C.S. §
6106.
In interpreting statutes, this Court has established that “[w]hen the
language of a statute is clear and unambiguous, it must be given effect in
- 11 -
J-S17022-15
accordance with its plain and common meaning.” Commonwealth v.
Ostrosky, 866 A.2d 423, 427 (Pa. Super. 2005) (citation omitted); 1
Pa.C.S. § 1903(a). In Commonwealth v. Lopez, 663 A.2d 746 (Pa. Super.
1995), we reiterated our Supreme Court’s admonition that the word “or”
occurring in a statute must be given its ordinary meaning unless such a
construction would give a result which is absurd, impossible of execution,
highly unreasonable, or tending to nullify the legislative intent. Id. at 749.
See also Commonwealth v. Diodoro, 970 A.2d 1100, 1107 (Pa. 2009)
(statute utilizing disjunctive “or” was purposeful use by General Assembly,
and the terms so connected “were meant to have different applications”).
Here, the Commonwealth presented evidence showing that Appellant
had both the power to control the firearm and intent to exercise that control
through the testimony of Officer DePelligrin and Detective Fusco. The
officers observed Appellant and T.W. with their arms in the closet making
motions consistent with hiding something. This raised a clear inference of
constructive possession, as it demonstrated Appellant’s ability to exercise
conscious control or dominion over the illegal substance and the intent to
exercise that control. Johnson, 26 A.3d at 1093–1094 (intent to maintain
conscious dominion may be inferred from totality of the circumstances).
Thus, we agree with the juvenile court that there was sufficient evidence to
support Appellant’s adjudication for carrying a firearm without a license.
- 12 -
J-S17022-15
Appellant’s final issue assails the weight of the evidence. Appellant
contends that the trial court abused its discretion when it accorded
“improper weight . . . to the testimony of Officers DePelligrin and Fusco, to
the extent that they were inconsistent as to location and configuration of the
juveniles within the room when [the officers] arrived on the scene.”
Appellant’s Brief at 20. This Court applies the same standard for reviewing
weight-of-the-evidence claims in juvenile cases as those involving adults.
In re R.N., 951 A.2d 363, 370 (Pa. Super. 2008), called into question on
other grounds, In re J.B., 106 A.3d 76 (Pa. 2014).
An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. Commonwealth v.
Ramtahal, 33 A.3d 602 (Pa. 2011). “An appellate court, therefore, reviews
the exercise of discretion, not the underlying question whether the verdict is
against the weight of the evidence.” Id. at 609. “The trial court’s denial of
a motion for a new trial based on a weight of the evidence claim is the least
assailable of its rulings.” Commonwealth v. Rivera, 983 A.2d 1211, 1225
(Pa. 2009). A weight-of-the-evidence claim is waived for failure to raise the
issue in the trial court. Pa.R.Crim.P. 607(A); Commonwealth v.
Thompson, 93 A.3d 478, 490 (Pa. Super. 2014).
While the comment to Pa.R.Crim.P. 607 specifies that weight-of-the-
evidence claims in criminal proceedings are waived unless they are raised
with the trial court in a motion for a new trial, “the Pennsylvania Rules of
- 13 -
J-S17022-15
Juvenile Procedure have no counterpart requiring the same manner of
preservation.” In re J.B., 106 A.3d 76, 91 (Pa. 2014). Indeed, “the current
Rules of Juvenile Court Procedure—which ‘govern delinquency proceedings in
all courts’—are utterly silent as to how a weight of the evidence claim must
be presented to the juvenile court so that it may rule on the claim in the first
instance, which is . . . a necessary prerequisite for appellate review.” Id. at
98 (footnote omitted). Pa.R.J.C.P. 620(A)(2) governs the filing of what it
expressly designates as an “optional post-dispositional motion.” See
Pa.R.J.C.P. 620(A)(2) (“Issues raised before or during the adjudicatory
hearing shall be deemed preserved for appeal whether or not the party
elects to file a post-dispositional motion on those issues.”).
In the present case, unlike the juvenile in In re J.B., Appellant indeed
did file an optional post-disposition motion pursuant to Pa.R.J.C.P. 620 on
May 9, 2014, alleging, inter alia, that the verdict was against the weight of
the evidence. The trial court considered the claim in its Pa.R.A.P. 1925(a)
opinion. Thus, we address the issue.
Appellant argues that the testimony of Officer DePelligrin was
inconsistent with the testimony of Detective Fusco, asserting that the
officers “tell very different stories of the scene at the time that the firearms
were discovered.” Appellant’s Brief at 21. Appellant cites passages of both
officers’ testimony and suggests that Officer DePelligrin “was adamant that
all juveniles were detained on the bed,” while Detective Fusco was “equally
- 14 -
J-S17022-15
adamant that it would’ve been very unsafe for this to have been the case.”
Id. at 21. We have carefully reviewed the testimony and conclude that
Appellant has isolated aspects of the testimony without considering the
import of the totality.
Appellant emphasizes Detective Fusco’s testimony that when he came
upon the bedroom containing the four juveniles, he “didn’t go into that room
past the doorway.” N.T., 4/1/14, at 49. Appellant fails to specify, however,
that prior to that comment, Detective Fusco stated that he observed “two
individuals in the closet in the back.” Id. Moreover, the detective’s
testimony that he did not go into the room “past the doorway” indicates that
he was at the entrance to the room. Detective Fusco stated that both
Appellant and co-defendant T.W. “were inside the closet with at least one
hand inside the closet. It appeared [Appellant] was pushing clothes on top
of whatever was in the closet.” Id. at 54. On cross-examination, Detective
Fusco clarified that Appellant and T.W. “were actually with their butts on the
bed leaning into the closet.” Id. at 79. Both officers testified that at some
point, the juveniles were handcuffed and taken out of the bedroom. Officer
DePelligrin stated that the juveniles were handcuffed and “were detained on
the bed.” Id. at 28. Detective Fusco stated that “[t]hey were all detained in
the room by me, but none of them were handcuffed and secured on the
bed.” Id. at 86.
When a trial court denies a weight-of-the-evidence motion,
and when an appellant then appeals that ruling to this Court, our
- 15 -
J-S17022-15
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court
determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion, whether or
not that decision is the one we might have made in the first
instance.
Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa. Super. 2015).
We have stated that “we must accept the juvenile court’s findings that
are supported by competent evidence of record, and we defer to the juvenile
court on issues of credibility and weight of the evidence.” A.N. v. A.N., 39
A.3d 326, 334 (Pa. Super. 2012); In re C.S., 63 A.3d 351, 358 (Pa. Super.
2013) (“We find that the juvenile court did not abuse its discretion in
concluding that its sense of justice was not shocked.”).
The juvenile court herein addressed and rejected Appellant’s claim
regarding the weight of the evidence, as follows:
Appellant asserts that undue weight was given to the
police officers’ testimony because it was inconsistent and refuted
by Appellant. In support of his challenge to the weight of the
evidence, Appellant does not identify facts of record that are so
clearly of greater weight that to ignore them would be to deny
justice.[3] Alternatively, Appellant pinpoints perceived
weaknesses in the Commonwealth’s case, specifically that the
____________________________________________
3
In Appellant’s averment challenging the weight of the evidence in his post
disposition motion, Appellant asserted only “that the inconsistent testimony
of Officers DePelligrin and Fusco cannot be relied upon to support a finding
that [Appellant] was in possession of any illegal items found within the
closet.” Post Disposition Motion for Reconsideration Pursuant to Pa.R.J.P.
620, 5/9/14, at 4.
- 16 -
J-S17022-15
police officers’ testimony regarding the facts surrounding
Appellant’s detention is inconsistent and not worthy of belief.
First, Appellant asserts that Officer DePelligrin testified
that the drugs were found in the bottom of a cluttered bedroom
closet and then later contradicts himself by stating that the
drugs were towards the top. T.T. at 18, 26. A careful review of
the record reveals that Officer DePelligrin was referring to what
was on the bottom of the closet. He clearly points out that it
was cluttered with various things, one of them being the heroin.
When questioned about where the heroin was found (among the
things on the bottom of the closet), Officer DePelligrin states
that they were found towards the top, “settled down in like a
little bit ways.” While Appellant chooses to interpret the officer’s
distinction of where the heroin was found on the bottom of the
cluttered closet, their analysis is simply not correct. Further, the
fact that one officer saw something that the other officer didn’t
see is not, by definition, inconsistent and in many cases can
easily be attributed to their different positions when entering the
house. Testimony indicated that Officer Fusco was ahead of
Officer DePelligrin when entering the house and that there were
certain tasks that officers in the back did that the first officers
did not do. This Court found the officers’ testimony to be clear
and consistent especially concerning the matters or elements
directly related to the crimes that Appellant was found guilty.
“The trier of fact, in determining the credibility of witnesses and
the weight to be afforded the evidence produced, is free to
believe all, part, or none of the evidence.” Commonwealth v
Griscavage, 517 A.2d 1256 (Pa. 1986); Commonwealth v
Murray, 334 A.2d 255 (Pa. 1975). This Court considered all
matters presented and properly assigned the weight to be
accorded to each piece of evidence presented in this case.
Juvenile Court Opinion, 9/19/14, at 7–8.
Reiterating that 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, our Supreme Court admonished that “[a] new trial should not
be granted because of a mere conflict in the testimony . . . .”
- 17 -
J-S17022-15
Commonwealth v. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013). The
Supreme Court stated:
In reviewing the entire record to determine the propriety of a
new trial, an appellate court must first determine whether the
trial judge’s reasons and factual basis can be supported. Unless
there are facts and inferences of record that disclose a palpable
abuse of discretion, the trial judge’s reasons should prevail. It is
not the place of an appellate court to invade the trial judge’s
discretion any more than a trial judge may invade the province
of a jury, unless both or either have palpably abused their
function.
To determine whether a trial court’s decision constituted a
palpable abuse of discretion, an appellate court must “examine
the record and assess the weight of the evidence; not however,
as the trial judge, to determine whether the preponderance of
the evidence opposes the verdict, but rather to determine
whether the court below in so finding plainly exceeded the limits
of judicial discretion and invaded the exclusive domain of the
jury.” Where the record adequately supports the trial court, the
trial court has acted within the limits of its judicial discretion.
Id. at 1056.
We conclude that the juvenile court’s decision did not constitute a
palpable abuse of discretion. Rather, “notwithstanding all the facts, certain
facts [were] so clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice.” Clay, 64 A.3d at 1055.
Thus, we conclude this issue is lacking in merit.
Dispositional order affirmed.
P.J. Gantman joins the memorandum.
Justice Fitzgerald concurs in the result.
- 18 -
J-S17022-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2015
- 19 -