Com. v. Luskey, S.

J-S07039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN HOWARD LUSKEY, JR. :
:
Appellant : No. 1089 WDA 2021
Appeal from the Judgment of Sentence Entered August 24, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000161-2020
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
JUDGMENT ORDER BY PELLEGRINI, J.: FILED: MAY 02, 2022
Steven Howard Luskey, Jr. (Luskey) appeals from the judgment of
sentence imposed after his jury conviction of Corruption of Minors, 18 Pa.C.S.
§ 6301(a)(1)(i), arguing that the judgment was against the weight of the
evidence. We remand.
It is well-settled that
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder and is free to believe all, part, or none
of the evidence presented and determine the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so contrary
to the evidence as to shock one’s sense of justice. … [A]n appellate
court’s role is not to consider the underlying question of whether
the verdict is against the weight of the evidence. Rather,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S07039-22
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation omitted).
Instantly, the trial court denied Luskey’s post-sentence motion
challenging the sufficiency and weight of the evidence without providing an
explanation for its decision. (See Order, 8/31/21, at 1) (pagination provided).
In its Rule 1925(a) opinion, the trial court acknowledged that the only issue
Luskey is challenging in this appeal is the weight of the evidence. However,
it then conducted a review of the sufficiency of the evidence, which “is entirely
distinct from a challenge to the weight of the evidence.” Commonwealth v.
Smith, 853 A.2d 1020, 1027 (Pa. Super. 2004); (see Trial Court Opinion,
10/29/21, at 1-4).
Because we are unable to review Luskey’s weight of the evidence
challenge in the first instance, we remand this matter to the trial court for it
to prepare a supplemental Rule 1925(a) opinion properly addressing and
analyzing Luskey’s weight of the evidence claim within twenty days of the date
of this Judgment Order.
Case remanded. Jurisdiction retained.
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