Commonwealth v. Walsh , 2012 Pa. Super. 9 ( 2012 )

CONCURRING OPINION BY

DONOHUE, J.:

I join in the majority’s rationale and disposition of the issues it renumbers as 1-5. I join in the majority’s rationale and conclusion that Issue 6, Appellant’s weight of the evidence claim, has been waived. I do not join in the majority’s notation that it is logically inconsistent for a trial court, in a non-jury trial, to test its verdict against a challenge to the weight of the evidence. Majority Op. at 622 n. 5. It is the hallmark of a diligent trial judge to admit, after a review of a transcript, that a substantive misunderstanding of evidence formed the basis of his or her verdict. Upon discovery of such an error, the verdict rendered may indeed shock the jurist’s conscience mandating a reversal of the outcome.

Further, since the majority emphasizes that as an appellate court, we may not review the underlying question of whether the verdict is against the weight of the evidence, I believe it is logically inconsistent to then engage in an analysis of that very question. Since the claim was not raised in a post-trial motion, the trial court did not decide the weight of the evidence claim on its merits, and thus could not possibly have abused its discretion." For this reason, I do not join in the majority’s “even if’ analysis.