Com. v. Martin, M. Jr.

J-S35012-22
2023 PA Super 105COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MICHAEL T. MARTIN, JR. : No. 791 MDA 2022
Appeal from the Order Entered May 13, 2022
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0002065-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
CONCURRING AND DISSENTING OPINION BY BENDER, P.J.E.:
FILED: JUNE 12, 2023
The trial court, having observed all the proceedings, concluded that
Appellee “is actually innocent.” Trial Court Opinion, 5/13/22, at 36 (emphasis
omitted). While I agree with the Majority that the Commonwealth presented
sufficient evidence to sustain the convictions and that Appellee is not entitled
to discharge, I respectfully disagree with my learned colleagues’ decision to
reverse the trial court’s grant of a new trial on weight-of-the-evidence
grounds. I do not share the Majority’s confidence that the trial court’s
concerns are so unfounded that the trial court abused its discretionary
authority in granting a new trial. In my view, the Majority has brushed aside
the trial court’s concerns by simply ruling on the underlying weight claim,
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* Former Justice specially assigned to the Superior Court.
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which we may not do. I therefore respectfully dissent, as I would affirm that
portion of the order and remand for a new trial.
I begin by repeating the standard of review, as I believe the Majority
misapplies it:
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. 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.”
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (footnote
and citations omitted). On appeal, our review is “distinct from the standard
of review applied by the trial court[.]” Commonwealth v. Clay, 64 A.3d
1049, 1055 (Pa. 2013). We do not review the underlying weight of the
evidence question. Instead, we examine the judge’s exercise of discretion in
ruling on that claim. Id. We therefore do not review the trial court’s decision
to grant or deny a new trial under a de novo standard of review. Instead, we
decide whether the trial court’s determination, or more accurately its reasons
for reaching its decision, constituted an abuse of discretion.
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The Majority correctly recites the basic standards, but I believe that it
misapplies them. My colleagues — without elaboration — conclude that “the
trial court plainly exceeded the limits of judicial discretion and invaded the
exclusive domain of the jury by substituting its own credibility determination
for that of the fact-finder.” Maj. Op. at 21. However, I do not believe the
relevant standard permits this Court to simply conclude that the trial court
abused its discretion. Instead, we must explain how the trial court erred. See
Clay, 64 A.3d at 1056 (“The Superior Court failed to consider the discretion
exercised by the trial judge or the findings and reasons advanced by the judge
in support of his determination that the verdicts were not against the weight
of the evidence.”).
So where did the trial court go astray when adjudicating the actual
weight of the evidence claim? As best I can discern, the Majority concludes
that the trial court abused its discretion because it disagrees with the result
the court reached. It notes that the jury “clearly found the testimony and
evidence presented at trial credible and elected not to believe Appellee’s
version of the events.” Maj. Op. at 21.1
As an initial matter, the fact that the jury found the evidence credible is
of limited value, since a weight-of-the-evidence claim can exist only if the jury
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1 The Majority overstates the jury’s credibility determinations by asserting
that “the jury heard testimony from multiple Commonwealth witnesses that
Appellee sexually abused J.K.” Maj. Op. at 21. Only three witnesses testified,
and only J.K. offered any firsthand testimony that Appellee abused her.
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found the testimony credible; otherwise, the jury would have returned a not-
guilty verdict. We are not reviewing the underlying question of whether the
weight of the evidence supported the verdict, and so the jury’s assessment is
beside the point. Indeed, the abuse-of-discretion standard contemplates that
if the decision were ours to make in the first instance, we may have gone the
other way. “When the court has come to a conclusion by the exercise of its
discretion, the party complaining of it on appeal has a heavy burden; it is not
sufficient to persuade the appellate court that it might have reached a different
conclusion if, in the first place, charged with the duty imposed on the court
below….” Paden v. Baker Concrete Const., Inc., 658 A.2d 341, 343 (Pa.
1995) (citation omitted).
The Majority therefore proceeds from the premise that we must give
deference to the jury’s verdict, but not the trial court’s assessment of the
weight claim. Tellingly, the Majority states that this is not a case “in which a
jury’s verdict should be vacated on weight-of-the-evidence grounds.” Maj.
Op. at 20. But we are not asked to decide whether the verdict should be
vacated. We are deciding only whether the trial court’s reasoning for
concluding that a new trial is warranted constituted an abuse of discretion.
The Majority not only misapplies the standard of review, but it also serves to
create a stacked deck in favor of the Commonwealth, as the prosecution
obviously cannot seek a new trial if the jury acquits. Thus, it is already baked
into the weight remedy that the jury deemed the Commonwealth’s evidence
credible and rejected any testimony by the defendant. The Majority has
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effectively eliminated a trial court’s ability to grant a new trial on weight
grounds. The Commonwealth can always say that the grant of a new trial on
weight grounds is unwarranted because the jury found its presentation
credible. If that argument is enough to establish an abuse of discretion, it is
unclear how any defendant could ever prevail if the Commonwealth chooses
to appeal. This Court can always simply respond as it does now: “The jury
clearly found the testimony and evidence presented at trial credible….” Id. at
21.
Fortunately, the appellate standards, properly applied, treat each side
the same. Hence the observation that “[o]ne of the least assailable reasons
for granting or denying a new trial is the lower court’s determination that the
verdict was or was not against the weight of the evidence and that new
process was or was not dictated by the interests of justice.” Commonwealth
v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted). Trial courts are
naturally reluctant to disturb a jury’s verdict and it certainly seems that courts
are carefully exercising their discretion given the rarity of successful weight-
of-the-evidence challenges. As an appellate court, we have no license to
overturn those decisions, regardless of whether it favors or disfavors the
Commonwealth, absent a clear abuse of discretion. As our Supreme Court
stated in Commonwealth v. DiStefano, 265 A.3d 290 (Pa. 2021), if we find
that the trial court abused its discretion we must adequately explain why:
On appeal, the Superior Court noted that it reviews evidentiary
rulings for an abuse of discretion, and ultimately concluded that
the trial court abused its discretion. However, the Superior Court
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never described the particulars of the “abuse of discretion”
standard nor did the intermediate court specifically explain how
the trial court abused its discretion.
Id. at 298.
DiStefano involved an evidentiary ruling, but the same logic applies to
any claim that a trial court abused its discretion. To overrule the trial court’s
exercise of discretion, we must specifically explain how the trial court erred.
A conclusory statement does not suffice. Given the lack of any developed
explanation by the Majority addressing the trial court’s actual rationale, I
respectfully submit that the Majority has in truth reviewed the question de
novo.2
The Majority’s conclusion is substantively indistinguishable from a trial
court’s naked conclusion that a new trial is warranted. A mere recitation by
the court that a new trial is warranted would be an abuse of discretion if not
backed up by concrete observations and facts. It is no less an abuse for this
Court to overrule the trial court by announcing that the trial court exceeded
its authority. In Commonwealth v. Brown, 648 A.2d 1177 (Pa. 1994), our
Supreme Court stated:
An appellate court by its nature stands on a different plane than
that of a trial court. Whereas a trial court’s decision to grant or
deny a new trial is aided by an on-the-scene evaluation of the
evidence, an appellate court’s review rests solely upon a cold
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2 The trial court’s analysis of the weight claim is approximately fifteen pages.
Excluding the passages quoting the relevant standards of law, the Majority’s
analysis comprises approximately one page. I do not suggest that mere
length alone is dispositive, but if the trial court’s reasons for granting a new
trial “plainly exceeded the limits of judicial discretion,” Maj. Op. at 21, the
Majority could surely explain why that is so.
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record. Because of this disparity in vantage points an appellate
court is not empowered to merely substitute its opinion concerning
the weight of the evidence for that of the trial judge. Rather our
court has consistently held that appellate review of the trial court’s
grant of a new trial is to focus on whether the trial judge has
palpably abused his discretion, as opposed to whether the
appellate court can find support in the record for the jury’s
verdict….
Id. at 1190 (citation omitted, ellipsis in original).
The trial court’s superior position with respect to observing the
presentation of the case firsthand presumably explains why the relevant
standard of review requires an abuse of discretion to overrule the trial court.
As quoted, the relevant standard of review requires a “palpable” abuse of
discretion. That arguably suggests an even higher degree of deference to the
trial court is appropriate. Cf. Stilp v. Commonwealth, 905 A.2d 918, 965
(Pa. 2006) (noting that a party “challenging the constitutionality of an act of
the General Assembly bears a heavy burden of proof” and must show that the
act “clearly, palpably, and plainly violates the Constitution”).3 But even under
a “regular” abuse of discretion standard, we must “give the gravest
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3 As noted by Chief Justice Bell’s concurrence in Wilson v. Nelson, 263 A.2d
116 (Pa. 1969), the “abuse of discretion” standard has been described in at
least five ways. “In discussing an ‘abuse of discretion’ by the lower [c]ourt,
this Court has from time to time used five different tests: abuse of discretion,
clear abuse of discretion, palpable abuse of discretion, manifest abuse of
discretion, and gross abuse of discretion.” Id. I submit that the trial court’s
institutional advantage arguably calls for a higher degree of deference. See
also Commonwealth v. Derry, 150 A.3d 987, 995 n.2 (Pa. Super. 2016)
(explaining that “review of the discretionary aspects of a [violation-of-
probation] court’s sentence … may, as a practical matter, dictate a greater
degree of deference from a reviewing court”).
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consideration to the findings and reasons advanced by the trial judge.”
Widmer, 744 A.2d at 753. The Majority fails to do so.
The foregoing establishes why I am unpersuaded that the Majority has
adequately set forth sufficient reasons to justify its decision. I now explain
why I find no abuse of discretion.
The Commonwealth asserts that the weight-of-the-evidence standards
“prevent the Monday morning quarterbacking in which the trial court engaged
during this case.” Commonwealth’s Brief at 37. It argues that the trial court
simply acted as the thirteenth juror, disregarded the jury’s judgment, and
substituted its own. While the trial court’s opinion recognizes it cannot do
that, the Commonwealth argues that the substance of the court’s analysis
demonstrates it did so. “The trial court goes to great lengths to frame its
analysis in a way [that] does not equate to the trial court[’s] attempting to
function as the thirteenth juror in this case, but the trial court’s opinion does
not bear out this assertion.” Id. at 32. The Commonwealth notes that the
trial court’s opinion discusses alternative theories to explain J.K.’s inconsistent
testimony, with the court “substitut[ing] the factual and credibility
determinations of a jury of twelve of [Appellee]’s peers[, and] did so by relying
upon a series of speculative conclusions that have absolutely no basis in the
record.” Id. at 36. In this regard, the Commonwealth cites the trial court’s
admission that it “began its weight[-]of[-]the[-]evidence analysis months
before such an issue was even before the court.” Id. at 37 (emphasis
omitted). The Commonwealth also characterizes large portions of the trial
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court’s opinion as “read[ing] more like a collateral post-conviction petition for
relief blindly alleging ineffective assistance of trial counsel than a judicial
opinion.” Id. at 35.
It is clear that the trial court cannot rule on a weight claim as if casting
a vote in the jury room and treating that vote as authoritative. The Widmer
Court explained “the limits of a trial court’s discretion” to grant or deny a
motion for a new trial as follows:
The term “discretion” imports the exercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion within the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be exercised
on the foundation of reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion is abused
where the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Widmer, 744 A.2d at 753 (citation omitted).
I do not find the court’s judgment to be manifestly unreasonable, nor
do I conclude that the trial court’s opinion evidences any partiality, prejudice,
bias, or ill-will. In reaching this conclusion, I do not suggest that it is obvious
that the trial court’s decision should be upheld.4 As explored in Austin v.
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4 As an overarching matter, I agree that the trial court’s opinion
inappropriately discusses potential ineffective assistance of counsel claims
throughout. Some of these observations strike me as incorrect even beyond
the impropriety of the court’s raising them sua sponte. For example, the trial
court asserted that a new trial was likely warranted based on an erroneous
sustainment of a hearsay objection concerning what E.A. (J.K.’s mother) told
J.K. prior to J.K.’s second interview with the Children’s Advocacy Center.
(Footnote Continued Next Page)
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Ridge, 255 A.2d 123 (Pa. 1969), “the central problem” in addressing weight
challenges is the degree of freedom that should be afforded a trial court “to
review and set aside a jury verdict where the evidence presented to the jury
is legally sufficient to sustain that verdict[.]” Id. at 124-25. The “rule may
be simply stated; its content is more elusive; and its application will of course
require a continuing exercise of judicial sensitivity.” Id. at 125. This type of
case boils down to whether J.K. was credible, and thus there is a risk that the
trial court simply disagreed with the jury’s credibility determination. However,
after careful review of the trial court’s opinion, I conclude that the trial court
based its decision “on the foundation of reason” as required by Widmer.
To see why this case is not simply one where the trial court granted a
new trial only because it would have acquitted Appellee, I briefly set forth
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However, Appellee leveled that objection, and counsel is presumed to have a
strategic reason for doing so. If that judgment is objectively reasonable, any
ineffective assistance of counsel claim necessarily fails.
Oddly, the trial court concluded that Appellee had a good reason to make
the objection. The court believed that sustaining the objection “suggested to
the jury that [E.A.] had ‘made’ J.K. go to the second … interview, calling J.K.’s
credibility into question, but the jury was deprived of hearing J.K.’s true reason
and was asked to assume that her reason was nefarious.” Trial Court Opinion,
5/13/22, at 42. I fail to see how the jury’s believing that J.K. was forced to
go to the interview by E.A. or acted nefariously would harm Appellee at all. It
would certainly help Appellee if the jury thought that J.K. was an unwilling
participant and disclosed the abuse only because that was what her mother
expected. Indeed, that may well explain why Appellee objected. But, in any
event, it was premature to write an opinion that announces an ineffective-
assistance-of-counsel claim would succeed if presented. Nonetheless, I take
the trial court’s analysis of those points to reflect its fervent belief that
Appellee is innocent and that a grave injustice has occurred.
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some additional factual background relevant to the trial court’s conclusion.
J.K. was fifteen years old at the time of trial, and between seven and eight-
years old when the abuse occurred. The abuse allegedly occurred throughout
the 2013 school year, when J.K. and her family resided with Appellee, her
uncle. The Commonwealth called three witnesses at trial: J.K., her mother
(E.A.), and Detective David Rush.
E.A. testified that she, her husband, and her seven children (six
daughters and one son),5 had to find housing after their home was
condemned. N.T., 8/31/21, at 29. The family had trouble finding a rental
property, leading E.A. to ask her sister, Pamela Martin, if she and her family
could temporarily move into her home. Ms. Martin agreed.
Appellee was married to Ms. Martin, and the couple had one son. The
three lived in a three-bedroom home with two floors.6 The first floor contained
a “computer room,” a dining room, and kitchen. The dining room had a
staircase leading to the second floor, which contained the three bedrooms and
the home’s only bathroom. Appellee and Ms. Martin slept in one of the
bedrooms. Id. at 40. One of the other two bedrooms belonged to Appellee’s
son, and J.K.’s sole brother moved into that room. Id. E.A. and her then-
husband moved into the third and final bedroom. Two of their daughters were
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5E.A. and her husband later divorced, following his convictions for sexually
abusing two of J.K.’s sisters.
6The home also had a basement and an attic, but those areas were not used
as a living space. N.T., 8/31/21, at 38.
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“really small” and thus stayed in that room full-time. Id. at 41. A third
daughter would “sometimes” sleep there. Id. J.K. and her sister slept
downstairs in the room adjoining the computer room, as would the
aforementioned child when not sleeping in E.A.’s room. Id. at 28, 42.
E.A. testified that the family lived with Appellee for the full 2013 school
year. J.K. attended the elementary school, which was within walking distance.
The school day was approximately 8:40 a.m. to 3:25 p.m. Id. J.K. would
leave the home at approximately 8:15 a.m. Id. at 48. Of the four adults,
only Appellee was employed. Id. at 46. On days that Appellee worked, he
would leave the home around 1:30 p.m. and return around 11:45 p.m. Id.
at 48. The parties stipulated to the authenticity of Appellee’s work records,
which established that he worked Monday through Friday, starting his shift
between 2:15 and 2:30 p.m. Id. at 144, 163. Appellee did not work
weekends, and he was absent from work during the periods of December 17
through December 31; January 6 to January 31; and March 10 through March
31. Id. at 164-65. In total, including weekends, Appellee was not at work
for 122 days of the nine months that J.K. and her family resided in his home.
Id. at 158.
J.K. testified that Appellee would make her perform oral sex on him,
“[u]sually in the computer room.” Id. at 72. Appellee began sexually abusing
her “a couple days into … the first week” after she moved into Appellee’s
home. Id. J.K. testified that nobody else would be present in the room. Id.
at 73. The other residents would “[s]ometimes … be upstairs and sometimes
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they would be in the outside of the house in the back yard.” Id. at 75. J.K.
said that the incidents “would usually be in the daytime.” Id. at 76. On cross-
examination, J.K. agreed that, in a videotaped statement, she said that the
abuse happened every day, but clarified that “[i]t happened every other day
because sometimes [there] would be … breaks.” Id. at 114. The abuse
continued until J.K. “said no the one time and then we moved out shortly
after.” Id. at 74.
J.K. disclosed the abuse to her two sisters during a party at their home,
years after leaving Appellee’s residence. Id. at 123. She testified that some
of her sisters and their friends told J.K. “to go upstairs because they wanted
to talk. … I was so angry because everyone kept leaving me out of stuff, and
it just slipped out because I thought, well, maybe if I said that, then I would
actually be included in stuff.” Id. at 80. The comment that “slipped out” was
J.K. saying to the girls, “Well, has anyone ever asked you to suck their dick
for candy?” Id. At the time, J.K. was unaware that two of her sisters had
been molested by their stepfather. Id. at 81. The sisters told J.K. that they
had been abused and the three girls talked to E.A. Id. E.A. then contacted
the authorities, and the investigation commenced.
Certainly, the facts are unusual in that so many people shared a small
home, and Appellee was the only adult who was employed. And as the trial
court explained at length in its opinion, J.K.’s testimony regarding the
frequency of the abuse is contradicted by Appellee’s work records, which the
Commonwealth agreed were authentic. J.K. testified that the abuse occurred
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in the daytime, when most of the household would be awake, thereby making
it difficult to serially abuse J.K. without someone noticing. The fact that a
convicted sexual abuser also lived with Appellee, and molested J.K.’s siblings
at some unknown point in time, was also relevant to the trial court’s
assessment of the weight of the evidence. So, too, was the fact that J.K.
disclosed the abuse years after the fact and only because the older siblings
were “leaving [her] out of stuff.” Id. at 80.
These points may well have not ultimately mattered had I viewed J.K.’s
testimony firsthand, but I did not. Neither did the Majority. Only the trial
court did, and the trial judge stated that this case was the first time its
conscience had been shocked by a verdict. “Until now, we had yet to be
presented with a case where our conscience was anywhere near our definition
of ‘shocked.’” Trial Court Opinion, 5/13/22, at 37 (emphasis omitted). 7 In
fact, the trial court came away convinced that Appellee is innocent. I do not
agree with the Majority’s cursory dismissal of the trial court’s assessment of
the case.
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7 I disagree with the Commonwealth’s suggestion that the trial court acted
capriciously because it began considering the validity of a weight claim before
Appellee raised the claim. We have stated that when “the jury’s verdict, at
the time of its rendition, causes the trial judge to lose his breath, temporarily,
and causes him to almost fall from the bench, then it is truly shocking to the
judicial conscience.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.
Super. 2004) (citations omitted), aff’d, 938 A.2d 198 (Pa. 2007). Thus, a
“delayed” recognition prompted by a defendant’s raising the claim would
subject the judge to a charge that the verdict was not against the weight of
the evidence, since the shocking nature of the verdict would have been
obvious at the time.
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In sum, our opinion on whether the trial court is correct that Appellee is
innocent of these crimes is beside the point. We only ask whether the trial
court abused its discretion in arriving at that conclusion. As I conclude that it
did not, I would affirm the grant of a new trial. Therefore, I respectfully
dissent.
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