Com. v. Caldarazzo, J. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JESSE ROBERT CALDARAZZO, : No. 1076 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, June 7, 2017,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0006765-2015
BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 28, 2018
Jesse Robert Caldarazzo appeals the judgment of sentence in which the
Court of Common Pleas of York County sentenced him to serve a term of 9 to
18 months’ imprisonment for simple assault1 followed by an aggregate term
of 2 years’ probation for recklessly endangering another person and disorderly
conduct.2 After careful review, we affirm.
The trial court set forth the following factual background and procedural
history:
On or about August 28, 2015, the victim,
David Schlenoff, went to a bar. [A]ppellant and
Charles Bull,[3] who was the co-defendant, also went
1 18 Pa.C.S.A. § 2701.
218 Pa.C.S.A. § 2705, and 18 Pa.C.S.A. § 5503, respectively.
3Charles Bull was convicted of the same crimes as appellant. A review of this
court’s docket indicates that Bull did not appeal his judgment of sentence.
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to the same bar that night. While at the bar, Schlenoff
talked to Sarah Caldarazzo,[Footnote 2] who was
[a]ppellant’s sister and Bull’s girlfriend. Before the
bar closed, Schlenoff, [a]ppellant, and Bull left the bar
and went to the parking lot separately, and a
commotion ensued. The parties disagreed on the
particulars of the commotion.
[Footnote 2] Appellant[4] had previously
dated Sarah Caldarazzo for a short period
of time.
During the trial, numerous witnesses testified
about the commotion. The first two witnesses were
Robert Webber and Brent Westcoat, who were also
Schlenoff’s friends. Both Webber and Westcoat
testified that as they were leaving, they noticed a
commotion involving Schlenoff, [a]ppellant, and Bull.
Webber saw [a]ppellant and Bull beating and
especially kicking Schlenoff, who was on the ground
in the fetal position. Westcoat similarly testified that
there were a lot of downward punches from
[a]ppellant and Bull against Schlenoff, but he was not
sure if there was kicking, though [a]ppellant and Bull
were standing while [a]ppellant[5] was on the ground.
Upon seeing the commotion, Westcoat and
Webber ran up to them, and, then, [a]ppellant and
Bull ran and got into a car, which was being driven by
someone else. As a result of [a]ppellant and Bull’s
actions, Schlenoff was barely moving. Webber stated
that Schlenoff’s eyeball was busted and bloody, and
that his hands were busted up. Westcoat testified that
Schlenoff had blood all over his mouth and that his
eye was swollen. They drove Schlenoff back to his
parents’ home, and he was soon taken to the hospital.
4 The trial court mistakenly referred to Schlenoff as “appellant.”
5 Though the trial court states that appellant was on the ground, it appears
from the context that the trial court meant that Schlenoff, the victim, was on
the ground.
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Schlenoff testified that he remembered leaving
the bar, but not what happened immediately
afterwards. He remembered waking up on the ground
and that he “could hardly see out of [his] eyes.” He
stated that he “was concussed, and [he] was just in a
daze, and [his] face was just swelled up, and there
was blood coming out of [his] nose and [his] eyes.
. . .” Before going to the hospital that night, his sister
took pictures of his injuries.
Throughout his testimony, Schlenoff often
stated that he could not remember things. After the
Commonwealth asked him about his lack of memory,
Schlenoff explained that he had “multiple concussions
and brain injuries from that night” and that was
impacting his memory.
Schlenoff further described that he had to have
facial reconstruction as a result of a shattered orbital
bone. Also, he had a pinched nerve and he required
a surgery for his shoulder. He required three months
of physical therapy and injections as well.
Because of that night, Schlenoff suffers from
short and long term memory problems, double vision
and sensitivity in the eye that was injured. He also
had to quit college due to his injuries.
Later, [a]ppellant’s sister, Sarah Caldarazzo,
testified. Sarah Caldarazzo testified that she went to
the same bar with [a]ppellant and Bull, where she
spoke with Schlenoff several times. She testified that
Schlenoff was rude to her, tried to grab her and that
Westcoat said rude things to the three of them as well.
Sarah Caldarazzo testified that she could hear
Bull, Westcoat and two other people coming towards
them as they were walking to their car. She said Bull
fought Schlenoff and that [a]ppellant fought one of
the other men that had come up to their car with
Schlenoff. She also testified that Schlenoff had fallen
on top of Bull on the ground and held him by the
shoulders and that Schlenoff would not get off of [sic]
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Bull. She testified that Bull punched Schlenoff while
Schlenoff was on top of Bull.
Jabin Mahone also testified on behalf of the
defendants. Mahone testified that he knew Bull for
twelve or fifteen years and knew [a]ppellant briefly.
Mahone’s testimony conflicted with Sarah Caldarazzo
on the number of people involved in the fight, saying
that he saw [a]ppellant, Bull, Webber, Westcoat and
Schlenoff arguing. He says that the first fight was
between [Schlenoff] and [Bull] and then Webber and
Westcoat became involved.
During the closing, the Defense Counsel argued
the inconsistencies in the testimony to the jury. The
Commonwealth addressed these inconsistencies
during closing argument and pointed out . . . the
Defense witnesses’ inconsistencies as well.
Trial court opinion, 10/5/17 at 2-6 (additional footnotes omitted).
The jury found appellant guilty of the aforementioned crimes. The trial
court sentenced appellant to a term of 9 to 18 months’ imprisonment followed
by 2 years of probation.
Appellant filed a post-sentence motion in which he, in part, sought a
new trial because the verdict was against the weight of the evidence. On
June 30, 2017, the trial court denied the motion with respect to the request
for a new trial based on the weight of the evidence. On July 5, 2017, appellant
filed a notice of appeal. On July 10, 2017, the trial court ordered appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). After he received an extension, appellant complied with
the order on September 5, 2017. The trial court issued its opinion pursuant
to Pa.R.A.P. 1925(a) on October 5, 2017.
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Appellant raises the following issue for this court’s review: “The guilty
verdict was against the weight of the evidence because it was based off of [sic]
inconsistent testimony from witnesses who had a motive to lie and who were
not credible.” (Appellant’s brief at 4.)
[T]he weight of the evidence is exclusively
for the finder of fact who is free to believe
all, part, or none of the evidence and to
determine the credibility of the witnesses.
An appellate court cannot substitute its
judgment for that of the finder of fact . . .
thus, we may only reverse the lower
court’s verdict if it is so contrary to the
evidence as to shock one’s sense of
justice. Moreover, where 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. Kim, 888 A.2d 847, 851
(Pa.Super. 2005) (citations and quotations omitted).
A motion for a new trial based on a challenge to the
weight of the evidence concedes the evidence was
sufficient to support the verdict. Commonwealth v.
Davis, 799 A.2d 860, 865 (Pa.Super. 2002).
Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).
Here, appellant contends that the trial court abused its discretion when
it failed to grant the motion for a new trial. Appellant invites us to assess
witness credibility and reweigh the evidence to convince us to reach a different
result than the jury reached. We decline to do so. The jury, as fact-finder,
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had the duty to determine the credibility of the testimony and the evidence at
trial. Commonwealth v. Talbert, 129 A.3d at 536 (Pa.Super. 2015), appeal
denied, 138 A.3d 4 (Pa. 2016). Appellate courts cannot and do not substitute
their judgment for that of the fact-finder.
Our review of the record supports our conclusion that the trial court
properly exercised its discretion in denying appellant’s weight claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/28/2018
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