Com. v. Markland, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RANDY MARKLAND
Appellant No. 496 EDA 2016
Appeal from the Judgment of Sentence entered December 16, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0002544-2015
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 13, 2017
Appellant, Randy Markland, appeals from the judgment of sentence
the Court of Common Pleas of Delaware County entered on December 16,
2015. Appellant argues the trial court abused its discretion in denying his
weight of the evidence challenge. We disagree. Accordingly, we affirm the
judgment of sentence.
The trial court summarized the relevant factual background as follows:
On December 17, 2014, at approximately 9:30 a.m., the victim
in this matter, Betty Brant, was at her apartment [] along with
her two (2) boys, ages 4 and 5 as well as her 16-year-old
daughter by the name of [K.S.]. The victim, Ms. Brant, the
aforementioned children and a fourth child, who was not present
at the time, are the sole occupants of the apartment. []
Appellant is the father of the two (2) boys and the victim had a
relationship with Appellant for approximately six (6) years
although they never lived together.
On the aforementioned date and time, [] Appellant barged
through the side door of her home[,] which lead[s] to the
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kitchen[,] yelling, using profanit[ies] and pointing his hands in
the victim’s face[,] telling her how he was going to kill her
because of her taking him to court for child support. Appellant
was poking his hands on her forehead. He then proceeded to
the kitchen and grabbed a knife out of the dish rack and came
toward her face with the knife pointing the blade straight at her
face. [K.S.] was able to step between [] Appellant and the
victim and knock the knife out of his hand. [] Appellant then
proceeded to pick up a statue figurine [] and threw it at the
victim striking her in the left leg. He also kicked her in her
chest. He subsequently picked up a large decorative kitchen
glass jar containing olives and oil and likewise threw that at the
victim, breaking the thick glass jar.
According to the victim, [Appellant] never resided at that
home[,] did not have a key[,] and was not invited to come that
day. [] Appellant also mentioned to the victim how she
deserved to be dead and referenced a lady that was recently in
the news who was murdered. The victim’s daughter went
outside to a neighbor’s house yelling for help. At some point []
Appellant left and the neighbor came over and the victim called
the police, who responded in a few minutes. The victim was
pregnant at the time of the aforementioned attack. She was
subsequently taken to the hospital where she was treated and
released. She is a certified nursing assistant and was unable to
work for “awhile.”
[] Appellant subsequently testified that he was invited into the
victim’s home that day and that he had a key that she had given
to him. The testimony was refuted by the victim.
Trial Court Opinion, 6/1/16, at 1-3 (citations to the record omitted).
On November 10-12, 2015, following a bench trial, the trial court
found Appellant guilty of simple assault (two counts), recklessly endangering
another person, criminal trespass, terroristic threats, and harassment.1 On
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1
18 Pa.C.S.A. §§ 2701, 2705, 3503, 2706, and 2709, respectively.
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December 12, 2015, the trial court sentenced Appellant, inter alia, to an
aggregate sentence of one to two years at a state correctional institution,
followed by four years of probation. Appellant timely filed a motion raising a
weight of the evidence claim. On January 14, 2016, the trial court denied
the motion. This appeal followed.
As noted, on appeal, Appellant argues the trial court abused its
discretion in denying his weight of the evidence challenge.2 The contention
can be summarized as follows: “In the present case, the conflicting
testimony of the eyewitness coupled with lack of physical or forensic
testimony was such that the conviction[s] [were] shocking to the
conscience.” Appellant’s Brief at 7. For the reasons stated below, we
conclude Appellant is entitled to no relief.
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2
In Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000), our Supreme
Court explained:
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.
Id. at 751-52 (internal citations and quotation marks omitted).
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Regarding the alleged conflicting testimony, Appellant fails to
recognize that, under our standard of review, we do not weigh or reweigh
the evidence, and we do not resolve conflicts in witnesses’ testimony. That
is the role of the trial court or the jury.3 See, e.g., Commonwealth v.
Alicia, 92 A.3d 753, 761 (Pa. 2014); Commonwealth v. Horne, 89 A.3d
277, 286 (Pa. Super. 2014); Commonwealth v. Serrano, 61 A3d 279, 289
(Pa. Super. 2013). On appeal, our role is to determine whether the trial
court abused its discretion in denying the challenge. See, e.g.,
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
Regarding the alleged lack of evidence, Appellant suggests that the
Commonwealth offered no evidence or that the evidence offered by the
Commonwealth must be discounted because it was not credible. The claim,
however, as articulated, is baseless and meritless. A review of the record,
as recounted by the trial court, see Trial Court Opinion, 6/1/16, at 1-3, 7-
13, reveals the Commonwealth presented evidence sufficient to prove all
elements of all crimes4 and that the trial court, sitting as factfinder, credited
the Commonwealth’s witnesses version of the facts, but not Appellant’s. We
are bound by that credibility assessment. “The trier of fact while passing
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3
As noted above, the trial court was sitting as factfinder in the instant case.
4
A challenge to the weight of the evidence “concedes that there is sufficient
evidence to sustain the verdict.” Widmer, 744 A.2d at 751 (citation
omitted).
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upon the credibility of witnesses and the weight of the evidence produced, is
free to believe all, part or none of the evidence.” Commonwealth v.
Feese, 79 A.3d 1101, 1122 (Pa. Super. 2013).
In light of the foregoing, we conclude the trial court did not abuse its
discretion in denying Appellant’s weight of the evidence challenge.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2017
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