Com. v. Woodham, J. ( 2021 )

J-S01012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES CARLTON WOODHAM :
:
Appellant : No. 378 MDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000633-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES CARLTON WOODHAM :
:
Appellant : No. 379 MDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000634-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES CARLTON WOODHAM :
:
Appellant : No. 380 MDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000636-2019
J-S01012-21
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 04, 2021
James Carlton Woodham appeals from the judgment of sentence,1
entered in the Court of Common Pleas of Bradford County, following his
convictions for one count each of theft by deception2 and criminal attempt—
retail theft,3 and two counts of criminal conspiracy to commit retail theft.4
Upon review, we affirm in part, vacate in part, and remand for resentencing
consistent with this memorandum.
The Commonwealth charged Woodham with various theft offenses in
three separate criminal informations filed on October 19, 2018, May 16, 2019,
and June 15, 2019.5 The cases were consolidated for jury trial.
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* Former Justice specially assigned to the Superior Court.
1 By filing three separate notices of appeal with one docket number on each
notice, Woodham has complied with the dictates of Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), which held that “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each of those cases.” See Pa.R.A.P. 341(a). See also
Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc)
(revisiting Walker holding) and Commonwealth v. Larkin, 235 A.3d 350(Pa. Super. 2020) (en banc) (same). We have consolidated Woodham’s
appeals sua sponte pursuant to Pa.R.A.P. 513.
2 18 Pa.C.S.A. § 3922.
3 18 Pa.C.S.A. § 901; see also 18 Pa.C.S.A. § 3922.
4 18 Pa.C.S.A. § 903; see also 18 Pa.C.S.A. § 3922.
5 Woodham was charged: (1) at criminal docket number 633-2019, with retail
theft and conspiracy to commit retail theft for conduct occurring in May of
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[At Woodham’s jury trial on November 15, 2019,] Tonya Steele,
an Asset Protection Specialist employed by Walmart[ in] Sayre,
Pennsylvania[;] David Horton, an employee of [the same]
Walmart[;] . . . and alleged co-conspirator, Jessica Parker,[6]
were called by the Commonwealth to testify. Photographs from
the Walmart surveillance videos showing [Woodham] and [Parker]
together were admitted. [Woodham] testified on his own behalf.
[The evidence adduced at trial established the following:]
[In October of 2018, Woodham] and [] Parker arrive[d] at the
Walmart in Sayre, PA in a red car. While moving throughout the
store, Parker place[d] items into the shopping cart. She also
maneuver[ed] the items often and use[d] a comforter to cover up
smaller items. They approach[ed] the checkout counters. Both
walk[ed] back and forth for approximately 20 minutes[,] paying
attention to the doorways to see if an associate [wa]s present.
While [Woodham] purchase[d] some snacks and check[ed] out at
the self-checkout, Parker continue[d] walking back and forth[,]
looking over the checkout aisles. Eventually[,] she pushe[d] the
cart through an unattended aisle. As Parker [wa]s exiting the
store, [Steele] . . . approache[d] her and ask[ed] for a receipt.
[Parker] state[d] she d[id] not have one and exit[ed] the store,
leaving the cart and merchandise behind. [Woodham] was
waiting for her and told [] Steele [] he [“]didn’t do anything.”
[Woodham] exit[ed] the store right behind Parker. [Woodham]
and Parker le[ft] in the same red car they arrived in. The value
of the merchandise found in the cart was a little over $800.
[Woodham] claims that he only had an inkling that Parker was
attempting to commit theft, but Parker said she told [Woodham]
what she was doing and that he was to be the “lookout.”
[In May of 2019, Woodham] and Parker arrive[d] at the Walmart
in Sayre, PA [again, this time] in a blue/gr[a]y van. Upon entering
the store, [Parker] [wa]s wearing a black wig. While moving
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2019; (2) at criminal docket number 634-2019, with retail theft, receiving
stolen property, and theft by deception for conduct occurring in June of 2019;
and (3) and at criminal docket number 636-2019, with retail theft, receiving
stolen property, criminal conspiracy to commit retail theft, and criminal
attempt—retail theft for conduct occurring in October of 2018.
6 Prior to trial, alleged co-conspirator Jessica Parker pled guilty to two counts
of retail theft and one count of theft by unlawful taking; she agreed to testify
on behalf of the Commonwealth. See N.T. Jury Trial, 11/15/19, at 75-76.
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throughout the store, Parker [wa]s the only one who place[d]
items into the shopping cart. Parker told [Woodham] what she
was doing. [Woodham] wait[ed] in the vestibule while Parker
attempt[ed] to leave the store with the merchandise. As Parker
[wa]s exiting the store, [] Horton confront[ed] Parker about a
receipt. Parker, no longer wearing the wig, produce[d] a Lowe’s
receipt and then claim[ed] that her boyfriend may have the
correct receipt. Parker then exit[ed] the store, leaving the cart
and merchandise behind. The value of the merchandise found in
the cart was over $300. [Woodham] claims that he waited in the
vestibule because Parker had his keys. Parker claims that she
never had [Woodham]’s keys.
[In June of 2019, Woodham], while entering the Walmart in Sayre,
PA, f[ound] on the ground a receipt for motor oil purchased at a
Walmart in Painted Post, NY. The receipt show[ed] cash payment
and [did] not give the name of the purchaser. [Woodham]
enter[ed] the subject store empty handed. [Woodham] t[ook]
possession of a jar of motor oil from a shelf in the store matching
th[e] descri[ption] on the receipt from [the] Painted Post
[Walmart]. [Woodham] complete[d] a cash return for the motor
oil using the receipt from Painted Post. [Woodham] claims that
he purchased the motor oil in Painted Post using his cash card.
[Woodham] also claims that there was over $5,000 on his cash
card coming from [social security income] back payments. Parker
claims that she did not enter the store that day but that she and
[Woodham] drove to Walmart in [Woodham]’s brother’s red car.
She claims that she waited in the car because she did not feel well.
There are no photos showing Parker in the store on that day.
Trial Court Opinion, 6/16/20, at 1-3 (reordered chronologically; internal
headings omitted). Following trial, the jury found Woodham guilty of the
above-stated offenses.7
On January 13, 2020, following the preparation of a presentence
investigation report (PSI), see N.T. Sentencing, 1/13/20, at 1-2, the trial
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7 The jury acquitted Woodham of retail theft under all three docket numbers,
and, further, acquitted Woodham of both receiving stolen property and retail
theft under docket numbers 634-2019 and 636-2019.
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court sentenced Woodham as follows: at docket number 633-2019, for
conspiracy to commit retail theft, 12 to 36 months’ imprisonment, plus costs
and a $500 fine; at docket number 634-2019, for theft by deception, 6 to 12
months’ imprisonment, plus costs and a $250 fine; at docket number 636-
2019, for criminal conspiracy to commit retail theft, 12 to 36 months’
imprisonment, plus costs and a $500 fine, and for criminal attempt to commit
retail theft, 12 to 24 months’ imprisonment, plus costs and a $500 fine. The
trial court ordered Woodham’s sentences to run consecutively to each other,
expressing its intention that Woodham’s aggregate sentence range from 42 to
108 months’ imprisonment. See Sentencing Orders, 1/13/20. Woodham
received credit for 194 days of time served.
On January 15, 2020, Woodham filed a motion for appointment of new
counsel. On January 23, 2020, Woodham’s then-counsel, Richard Jennings,
Esquire, filed a post-sentence motion on Woodham’s behalf. On February 4,
2020, the court issued an order withdrawing Attorney Jennings as counsel,
and appointing Daniel Stefanides, Esquire, to represent Woodham on appeal.
See Order, 2/4/20.8 Attorney Stefanides filed a timely notice of appeal on
Woodham’s behalf; both Woodham and the trial court have complied with
Pa.R.A.P. 1925. Instantly, Woodham raises the following issues for our
review:
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8 On February 7, 2020, the trial court issued an order denying as moot
Woodham’s motion to appoint counsel, having already appointed Attorney
Stefanides to represent him. See Order, 2/7/20.
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1. Whether the [trial] court imposed an illegal sentence [upon]
[Woodham] by sentencing him on two separate inchoate
crimes that were part of a single criminal episode.
2. Whether the [trial] court abused its discretion by imposing
consecutive sentences on each of the three cases, which were
consolidated for trial.
3. Whether the evidence presented at trial was not sufficient to
sustain the convictions.
4. Whether the convictions were against the weight of the
evidence.
Brief of Appellant, at 4.
Woodham first argues that, under criminal docket number 636-2019,9
the sentencing court illegally imposed consecutive sentences of 12-24 months’
imprisonment and 12-36 months’ imprisonment for his convictions of criminal
attempt—retail theft and criminal conspiracy to commit retail theft,
respectively, stemming from the incident on October 18, 2018. It is well-
settled that, when considering claims that implicate the legality of one’s
sentence, this Court’s standard of review is de novo and our scope of review
is plenary. Commonwealth v. King, 234 A.3d 549, 555 (Pa. 2020).
Pursuant to section 906 of the Crimes Code, “[a] person may not be
convicted of more than one of the inchoate crimes of criminal attempt, criminal
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9In Woodham’s appellate brief, counsel erroneously states that Woodham was
convicted of both criminal conspiracy and criminal attempt under docket
number 633-2019 for the incident that occurred in October of 2018. See Brief
of Appellant, at 14. Woodham was convicted of these two offenses under
criminal docket number 636-2019. At docket number 633-2019, Woodham
was convicted only of criminal conspiracy. See Sentencing Orders, 1/13/20.
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solicitation[,] or criminal conspiracy for conduct designed to commit or to
culminate in the commission of the same crime.” 18 Pa.C.S.A. § 906.
Instantly, Woodham, the Commonwealth, and the trial court agree—as
does this Court—that Woodham’s convictions under docket number 636-2019
for criminal attempt and criminal conspiracy—stemming from the same
conduct designed to culminate in retail theft on October 18, 2018—violate
section 906 of the Crimes Code, and that, accordingly, this matter should be
remanded for resentencing. See Trial Court Opinion, 6/16/20, at 9-10; Brief
of Appellant, at 14-15; Brief of Appellee, at 3-5. Therefore, we hereby vacate
Woodham’s conviction of criminal attempt—retail theft under docket number
636-2019. See Commonwealth v. Riquelmy, 449 A.2d 750, 750-51 (Pa.
Super. 1982) (vacating sentence imposed on charge of attempted theft and
affirming sentence imposed on charge of criminal conspiracy to commit theft
by deception where defendant was sentenced at both counts in violation of
section 906).10
Because the trial court sentenced Woodham to consecutive sentences
for both inchoate crimes, vacating Woodham’s criminal attempt conviction will
upset the court’s overall sentencing scheme. Therefore, this case must be
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10 Although this Court in Riquelmy, supra, vacated the appellant’s judgment
of sentence on the charge of attempted theft and affirmed his judgment of
sentence on the charge of criminal conspiracy, see id. at 750-51, section 906
provides that a person “may not be convicted” of more than one inchoate
crime for conduct designed to commit the same crime. 18 Pa.C.S.A. § 906
(emphasis added). Accordingly, we vacate Woodham’s criminal attempt
conviction itself, rather than the judgment of sentence therefor.
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remanded so that the trial court can restructure its sentence. See
Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (“If our
disposition upsets the overall sentencing scheme of the trial court, we must
remand so that the court can restructure its sentence plan.”); cf. Brown,
supra at n.6 (because trial court imposed concurrent sentences for two
inchoate crimes in violation of section 906, remand for resentencing not
necessary as it would not result in change in sentence) (emphasis added).
Next, Woodham argues that the trial court abused its discretion by
failing to consider his role in the crimes charged and by imposing consecutive
sentences for each conviction. No relief is due.
Woodham’s claims raise a challenge to the discretionary aspects of his
sentence. Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005)
(challenge to imposition of consecutive sentences is challenge to discretionary
aspects of sentence). An appeal raising the discretionary aspects of
sentencing is not guaranteed of right; rather, it is considered a petition for
permission to appeal. Commonwealth v. Williams, 562 A.2d 1385, 1368-
87 (Pa. Super. 1989) (en banc). Before this Court can address such a
discretionary challenge, an appellant must invoke this Court’s jurisdiction by:
(1) filing a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) properly
preserving the issue at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) including in his brief a concise statement
of reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f);
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and (4) raising a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code. Id.A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.
Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (internal
citations and quotation marks omitted).
Here, Woodham filed a post-sentence motion for reconsideration of
sentence, followed by a timely notice of appeal to this Court. He has also
included in his brief a concise statement of reasons relied upon for allowance
of appeal with respect to the discretionary aspects of his sentence pursuant
to Rule 2119(f). See Brief of Appellant, at 16. Accordingly, we must now
determine whether Woodham has raised a substantial question that his
sentence is not appropriate under the Sentencing Code.
We determine whether the appellant has raised a substantial question
on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa.
Super. 2007). “We cannot look beyond the statement of questions presented
and the prefatory Rule 2119(f) statement to determine whether a substantial
question exists.” Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa.
Super. 2018) (brackets omitted).
In his Rule 2119(f) statement, Woodham asserts that: “the lower court
did not take into consideration his minor role in the crimes charged[, and t]he
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sentences should not have run consecutively to each other.” Brief of
Appellant, at 16. Woodham has failed to present a substantial question for
our review. His bald assertion that the sentencing court failed to consider his
“minor role” in the crimes charged falls short of the “colorable argument”
required to justify review of the discretionary aspects of his sentence—
namely, that the sentencing judge’s actions were inconsistent with a specific
provision of the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process. Griffin, supra at 935-36; see also
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (where, as
here, court has benefit of a presentence investigation report, we assume court
was aware of and properly weighed all relevant information along with
mitigating and statutory factors). Furthermore, we have previously held that
a trial court’s exercise of discretion in imposing consecutive sentences, without
more, does not raise a substantial question for our review. See
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (bald
claim of excessiveness due to consecutive nature of sentence will not raise
substantial question; imposition of consecutive sentences may raise
substantial question “only in the most extreme circumstances.”). Therefore,
we cannot address Woodham’s claims regarding the discretionary aspects of
his sentence. Williams, supra at 1368-87.
Next, Woodham challenges the sufficiency of the evidence for his
convictions of criminal conspiracy to commit retail theft and criminal attempt—
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retail theft under docket number 636-2019.11 See Brief of Appellant, at 19-
23. Because we vacate Woodham’s conviction for criminal attempt under that
docket number as violative of section 906 of the Crimes Code, see supra at
6-8, we shall proceed with our review of his challenge to the sufficiency of the
evidence for his criminal conspiracy conviction only.
Whether sufficient evidence exists to support a verdict is a question of
law for which our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015).
We review the evidence in the light most favorable to the Commonwealth as
verdict winner to determine whether there is sufficient evidence to allow the
trier of fact to find every element of a crime beyond a reasonable doubt. Id.In applying the above test, we may not weigh the evidence and
substitute our judgment for [that of] the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
Any doubts regarding a defendant’s guilt may be resolved by the
fact-finder unless the evidence is so weak and inconclusive that[,]
as a matter of law[,] no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
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11 Although Woodham states that his “convictions” for criminal conspiracy
should be vacated on sufficiency grounds, see Brief of Appellant, at 20, he
discusses only his conspiracy conviction at docket number 636-2019 in his
appellate brief. See id. at 19-23. Therefore, his challenge to the sufficiency
of the evidence for his conspiracy conviction at docket number 633-2019 is
waived. See Commonwealth v. Spotz, 18 A.3d 244, 323 (Pa. 2011) (issues
and sub-issues that are undeveloped are unreviewable on appeal and are
accordingly waived).
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[fact-finder,] while passing upon the credibility of the witnesses
and the weight of the evidence produced, is free to believe all,
part[,] or none of the evidence.
Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014).
Pursuant to section 18 Pa.C.S.A. § 3929, a person is guilty of retail theft
if he:
takes possession of, carries away, transfers[,] or causes to be
carried away or transferred, any merchandise displayed, held,
stored[,] or offered for sale by any store or other retail mercantile
establishment with the intention of depriving the merchant of the
possession, use[,] or benefit of such merchandise without paying
the full retail value thereof.
Id. A person is guilty of criminal conspiracy where, with the intent of
promoting or facilitating the commission of a crime, he:
(1) agrees with [an]other person or persons that they or one or
more of them will engage in conduct which constitutes such crime
or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to
commit such crime.
18 Pa.C.S.A. § 903. To establish criminal conspiracy, the Commonwealth
must also prove beyond a reasonable doubt that the defendant or a co-
conspirator took an overt act in furtherance of the conspiracy. 18 Pa.C.S.A.
§ 903(e). See also Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.
Super. 2013) (overt act in furtherance of conspiracy required for conviction).
“Because it is difficult to prove an explicit or formal agreement to commit an
unlawful act, such an [agreement] may be proved inferentially by
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circumstantial evidence, i.e., the relations, conduct[,] or circumstances of the
parties or overt acts on the part of the co-conspirators.” Id.At Woodham’s trial, Asset Protection Specialist Tonya Steele testified
that on October 18, 2019, she first noticed Woodham and Parker together in
the “home-line” section of the Walmart in Sayre, Pennsylvania. N.T. Jury Trial,
11/15/19, at 19-20. After noticing Parker covering smaller items with a large
comforter, Steele followed the two around the store as they walked back and
forth together for twenty to thirty minutes, paying attention to who was near
the exit. Id. at 20-22. Once Woodham purchased a single item in the self-
checkout line, Parker attempted to exit the store without paying for the
merchandise in her cart, but Steele was able to stop her. Id. at 22. Woodham
was “a couple steps right behind her.” Id. at 22. He proceeded to tell [Steele]
that “he didn’t do anything.” Id. at 22.
Parker testified that she and Woodham arrived at the Walmart together
on October 18, 2018 in Woodham’s brother’s car. Id. at 66-67. She testified
that neither she nor Woodham had any money on them when they arrived,
and that they intended to “exchange [what they stole] for drugs.” Id. at 70.
Parker testified that Woodham knew about her plans to steal merchandise to
exchange for drugs because she told him. Id. at 70-71. She explained that
Woodham wanted some of the money or the drugs, and agreed to enter the
store before her and “mak[e] sure nobody was around,” which he did. Id. at
71. After Steele stopped Parker from leaving with unpaid-for merchandise,
Parker and Woodham left in the same car together. Id. at 72. Woodham
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testified that he did not know “100%” what Parker was doing, but he “had an
idea.” Id. at 80. When asked why he was shopping with her that day, he
testified, “I have no idea.” Id. at 91.
It is well-settled that mere conflicts in testimony do not render evidence
insufficient; when conflicts and discrepancies in testimony arise, it is within
the province of the jury to determine the weight to be given to each witness’
testimony. Commonwealth v. Verdekal, 506 A.2d 415, 419 (Pa. Super.
1986). The jury, therefore, was free to credit Parker’s testimony over
Woodham’s. We do not find that the evidence supporting a criminal
conspiracy between Parker and Woodham on October 18, 2018, is so weak
and inconclusive that, as a matter of law, no probability of fact may be drawn
from the combined circumstances. Cahill, supra at 300. The foregoing
evidence, viewed in the light most favorable to the Commonwealth as verdict
winner, is sufficient to prove beyond a reasonable doubt that, on October 18,
2018, Woodham and Parker had agreed to steal retail merchandise, or that
Woodham agreed to aid Parker in her attempt or commission of retail theft,
and that an overt act was taken in furtherance of the conspiracy.
Lastly, Woodham challenges the weight of the evidence for his
convictions under docket numbers 633-2019 and 636-2019 because Parker’s
testimony was so “incredulous, self-serving[,] and contrary to all other
evidence presented at trial.” Brief of Appellant, at 24.
Our standard of review for a challenge to the weight of the evidence is
well-settled:
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A motion for a new trial alleging that the verdict was against the
weight of the evidence is addressed to the discretion of the trial
court. An appellate court, therefore, reviews the exercise of
discretion, not the underlying question [of] whether the verdict is
against the weight of the evidence. The factfinder is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses. The trial court will award a new trial
only when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice. In determining whether this
standard has been met, appellate review is limited to whether the
trial judge’s discretion was properly exercised, and relief will only
be granted where the facts and inferences of record disclose a
palpable abuse of discretion. Thus, 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. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007).
Moreover, when a weight challenge “is predicated on the credibility of
trial testimony, [appellate] review of the trial court’s decision is extremely
limited. Generally, unless the evidence is so unreliable and/or contradictory
as to make any verdict based thereon pure conjecture, these types of claims
are not cognizable on appellate review.” Commonwealth v. Bowen, 55 A.3d
1254, 1262 (Pa. Super. 2012). Any conflicts in the evidence or contradictions
in testimony are exclusively for the fact-finder to resolve. Commonwealth
v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012). Finally, we note that,
“[b]ecause the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest consideration to
the findings and reasons advanced by the trial judge when reviewing a trial
court’s determination [whether] the verdict is against the weight of the
evidence.” Id.- 15 -
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In denying Woodham’s motion for a new trial on the grounds that the
verdicts were against the weight of the evidence,12 the trial court reasoned as
follows:
Here, there was both circumstantial and direct evidence of
[Woodham]’s participation in the crimes of . . . attempt and
conspiracy[,] as well as theft by deception. The Commonwealth
presented evidence in the form of the testimony of Steele,
Horton[,] and Parker [as well as] photos from the surveillance
footage. . . . [Woodham] testified as well. The jury could and
obviously did draw inferences from the activities of [Woodham]
and Parker while in the store as described by Steele. Parker’s
testimony that [Woodham] was aware of the attempted thefts and
was [the] “look out” affirms the inferences. Parker’s and Steele’s
testimony that [Woodham] found a receipt from another store and
used it to obtain a refund obviously conflicts with [Woodham]’s
testimony that he had purchased the oil can. The jury [] found
the Walmart employees’ and Parker’s testimony more credible
than [Woodham’s] and concluded that [Woodham] conspired with
Parker to steal from the store, attempted to steal from the store,
did steal from the store[,] and committed a theft by deception.
Trial Court Opinion, 6/16/20, at 7-8.
There is nothing in the record to suggest that the trial court’s decision
to deny Woodham’s motion for a new trial based on the weight of the evidence
was a palpable abuse of discretion. See Cousar, supra. The Commonwealth
called numerous witnesses who all corroborated the same theory—that
Woodham committed theft and conspired with Parker to commit retail theft
on several occasions. “The weight of the evidence is exclusively for the finder
of fact, which is free to believe all, part, or none of the evidence, and to assess
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12Woodham preserved this challenge by raising it in a post-sentence motion,
as required by Pa.R.Crim.P. 607.
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the credibility of the witnesses.” Commonwealth v. Palo, 24 A.3d 1050,
1055 (Pa. Super. 2011); see also see also Commonwealth v. Brown, 648
A.2d 1177, 1190 (Pa. 1994) (appellate court, whose review rests solely upon
cold record, stands on different plane than trial court, which is aided by on-
the-scene evaluation of evidence; thus, appellate court not empowered to
substitute its opinion regarding weight of evidence for that of trial judge).
Accordingly, this claim fails.
Criminal attempt—retail theft conviction under docket number 636-2019
vacated. All remaining convictions affirmed. Remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/04/2021
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