Com. v. Landrau-Melendez, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MIGUEL ANGEL LANDRAU-MELENDEZ
Appellant No. 661 MDA 2017
Appeal from the PCRA Order March 28, 2017
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0002086-2014
BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 22, 2017
Miguel Angel Landrau-Melendez appeals from the March 28, 2017 order
entered in the Lebanon County Court of Common Pleas denying his petition
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.
We affirm.
The opinion prepared for direct appeal by the Honorable Bradford H.
Charles set forth a detailed factual history, which we adopt and incorporate
herein. See Opinion, 10/21/15, at 2-5. On May 7, 2015, a jury convicted
Landrau-Melendez of aggravated harassment by a prisoner, 18 Pa.C.S. §
2703.1,1 based on evidence that he threw a cup of urine on another inmate.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
The trial court convicted Landrau-Melendez of harassment, 18 Pa.C.S.
1
§ 2709, which, for sentencing purposes, merged with the other conviction.
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On June 17, 2015, the trial court sentenced Landrau-Melendez to 21 to 72
months’ incarceration on the conviction for aggravated harassment by a
prisoner. On November 18, 2015, Landrau-Melendez timely appealed to this
Court. On September 16, 2016, we affirmed his judgment of sentence.
On June 20, 2016, Landrau-Melendez, acting pro se, filed the instant
PCRA petition. On August 5, 2016, Landrau-Melendez, through appointed
counsel, filed an amended PCRA petition. On March 23, 2017, the trial court
held a hearing on the petition. On March 29, 2017, the trial court denied the
petition. On April 13, 2017, Landrau-Melendez timely filed an appeal.
Landrau-Melendez raises seven issues on appeal:
1. Whether Trial Counsel was ineffective for failing to
take into account [Landrau-Melendez]’s comments on
selecting the Jury and who Landrau-Melendez wanted
and did not want on the Jury?
2. Whether Trial Counsel was ineffective for failing to
allow [Landrau-Melendez] to testify at trial after he
stated his desire to do so?
3. Whether Trial Counsel was ineffective for failing to call
the cellmate of the victim . . . as a witness. Said
witness would have aided in [Landrau-Melendez]’s
defense?
4. Whether Trial Counsel was ineffective for failing to
request and use [Landrau-Melendez]’s misconduct
report. Said report would have aided in [Landrau-
Melendez]’s defense?
5. Whether Trial Counsel was ineffective for failing to
adequately cross-examine . . . Captain [Ott] during
cross-examination. [Landrau-Melendez] had
requested Trial Counsel to question him on where and
how the interview took place and also how he obtained
the letter that [Landrau-Melendez] allegedly wrote?
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6. Whether Trial Counsel was ineffective for failing to
subpoena a handwriting expert to prove that
[Landrau-Melendez] did not write the confession
letter?
7. Whether the Trial Court erred when it appointed
Attorney Elizabeth Judd, after she was found to be
ineffective in another case where she represented
[Landrau-Melendez.]
Landrau-Melendez’s Br. at 4-5.
Our standard of review from the denial of PCRA relief “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). We will not disturb the PCRA
court’s factual findings “unless there is no support for [those] findings in the
certified record.” Commonwealth v. Melendez-Negron, 123 A.3d 1087,
1090 (Pa.Super. 2015).
All but the last of Landrau-Melendez’s claims asserts trial counsel
ineffectiveness. To prevail on ineffective assistance of counsel claims, “[the
PCRA petitioner] must plead and prove, by a preponderance of the evidence,
three elements: (1) the underlying legal claim has arguable merit; (2) counsel
had no reasonable basis for his action or inaction; and (3) [the petitioner]
suffered prejudice because of counsel’s action or inaction.” Commonwealth
v. Spotz, 18 A.3d 244, 260 (Pa. 2011). “The law presumes counsel was
effective.” Commonwealth v. Miner, 44 A.3d 684, 687 (Pa.Super. 2012).
“A claim of ineffectiveness will be denied if the petitioner’s evidence fails to
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meet any of these prongs.” Commonwealth v. Williams, 980 A.2d 510,
520 (Pa. 2009).
First, Landrau-Melendez argues that his counsel at jury selection,
Nicholas J. Sidelnick, Esquire,2 “was ineffective for failing to listen to [his]
requests and direction regarding the selection of his jury.” Landrau-
Melendez’s Br. at 10. Landrau-Melendez claims that he expressed concerns
to counsel about the racial makeup of his jury and that counsel said there was
little he could do because “almost all the jury that come[s] over here is like
white, in the middle, old persons.” Id. at 9 (quoting N.T., 3/23/17, at 9).
The trial court concluded that Landrau-Melendez’s claim lacked merit
chiefly because the court found that Landrau-Melendez never raised an issue
regarding jury composition with trial counsel. Opinion, 6/2/17, at 6 (“1925(a)
Op.”). The trial court also observed that “it is not unusual for Lebanon County
juries to be predominantly Caucasian” based on the county’s demographics.
Id.
To the extent that Landrau-Melendez is claiming that counsel should
have objected on the basis that the jury panel was not a fair cross-section of
____________________________________________
2Landrau-Melendez was represented by the public defender through his
direct appeal. While Landrau-Melendez was primarily represented by
Elizabeth Judd, Esquire, he was counseled at jury selection by Attorney
Sidelnick, another member of the public defender’s office. N.T., 3/23/17, at
28.
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the community,3 Landrau-Melendez presented no evidence that would support
such a claim. Further, counsel did not recall Landrau-Melendez raising any
discussions or concerns during the jury selection process and recalled telling
other defendants that there is little he could do to change the racial makeup
of the jury pool other than tell clients to “write down any particular people
that they don’t want in the jury.” N.T., 3/23/17, at 30. Counsel also testified
that if there had been an issue with the racial makeup of the jury, he would
have objected to preserve that issue. See id. at 32-33. Under these
circumstances, Landrau-Melendez failed to demonstrate that trial counsel
lacked a reasonable basis for not objecting during jury selection. Accordingly,
the trial court did not err in dismissing this claim.
Next, Landrau-Melendez argues that his trial counsel, Elizabeth Judd,
Esquire, was ineffective for failing to allow him to testify on his own behalf.
According to Landrau-Melendez, he told trial counsel that he wanted to testify.
Landrau-Melendez asserts that he told the trial court he did not want to testify
in his own defense “[b]ecause [he] thought [he] was doing the right thing at
the moment” by following trial counsel’s advice not to testify. Landrau-
Melendez’s Br. at 15.
____________________________________________
To prevail on such a challenge, a defendant must show that “1) the
3
group allegedly excluded is a distinctive group in the community; 2)
representation of this group in the pool from which juries are selected is unfair
and unreasonable in relation to the number of such persons in the community;
and 3) the under-representation is due to the systematic exclusion of the
group in the jury selection process.” Commonwealth v. Lopez, 739 A.2d
485, 495 (Pa. 1999) (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)).
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Our Court has stated:
[T]he decision to testify on one’s own behalf:
is ultimately to be made by the accused after full
consultation with counsel. In order to support a claim
that counsel was ineffective for “failing to call the
appellant to the stand,” [the appellant] must
demonstrate either that (1) counsel interfered with his
client’s freedom to testify, or (2) counsel gave specific
advice so unreasonable as to vitiate a knowing and
intelligent decision by the client not to testify in his
own behalf.
[Commonwealth v. Thomas, 783 A.2d 328,] 334
[Pa.Super. 2001)]. “Counsel is not ineffective where
counsel’s decision to not call the defendant was reasonable.”
Commonwealth v. Breisch, 719 A.3d 352, 355 (Pa.Super.
1998).
Commonwealth v. Todd, 820 A.2d 707, 711 (Pa.Super. 2003).
Here, the trial court colloquied Landrau-Melendez on his right to testify
and ensured his decision not to do so was voluntary. N.T., 5/7/15, at 48-49.
Under these circumstances, we agree with the trial court’s conclusion that trial
counsel did not interfere with Landrau-Melendez’s right to testify in his own.
Next, Landrau-Melendez argues that trial counsel was ineffective for
failing to call the victim’s cellmate, Bryan Bennett, as a witness at trial.
According to Landrau-Melendez, “Bennett’s testimony would have been very
crucial as to what occurred at the time of alleged incident. . . . [and h]ad [t]rial
[c]ounsel called [] Bennett to testify at trial, the [j]ury would have been able
to determine that [Landrau-Melendez] did not commit such acts.” Landrau-
Melendez’s Br. at 21.
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To establish counsel’s ineffectiveness for failing to call a potential
witness, a petitioner must show that:
(1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should have
known of, the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have
denied the defendant a fair trial. To demonstrate . . .
prejudice, a petitioner “must show how the uncalled
witnesses’ testimony would have been beneficial under the
circumstances of the case.” Thus, counsel will not be found
ineffective for failing to call a witness unless the petitioner
can show that the witness’s testimony would have been
helpful to the defense. A failure to call a witness is not per
se ineffective assistance of counsel for such decision usually
involves matters of trial strategy.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (internal
citations and some quotations marks omitted).
The trial court dismissed this claim because Attorney Judd testified that
Landrau-Melendez had admitted his guilt to her and, had Bennett witnessed
the incident, Attorney Judd “could have legitimately believed that [] Bennett
would tell the truth and describe what [Landrau-Melendez] himself admitted
doing.” 1925(a) Op. at 10.
We conclude that Landrau-Melendez’s claim is meritless. Trial counsel
testified that she and Landrau-Melendez had discussed Bennett passing the
note to the victim, but that Landrau-Melendez “did not bring to [her]
attention] a witness that he wanted subpoenaed and brought to trial.” N.T.,
3/23/17, at 37. Further, Landrau-Melendez did not establish that Bennett was
available or willing to testify.
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Next, Landrau-Melendez argues that trial counsel was ineffective for
failing to introduce a misconduct report4 from the Lebanon County
Correctional Facility regarding the incident. According to Landrau-Melendez,
because the report did not disclose that Landrau-Melendez admitted to the
offense or that there was any direct evidence linking Landrau-Melendez to the
offense, the report would have supported his defense.
The trial court concluded that counsel had a reasonable basis for not
introducing the misconduct report because, even though the report lacked any
confession, “[t]here were many more things negative than positive in the
report.” 1925(a) Op. at 11. We agree.
At the PCRA hearing, Attorney Judd testified that while misconduct
reports may sometimes help a defendant, she did not believe that this report
was helpful because it portrayed Landrau-Melendez as uncooperative and
combative. N.T., 3/23/17, at 37. Attorney Judd further stated that the report
was unhelpful because it disclosed that when corrections officers confronted
Landrau-Melendez, he told them “you would have to test the urine, you have
my DNA.” Id. at 38. Attorney Judd stated that she was “relieved when the
report wasn’t brought up because there were more things that were negative
for him than positive.” Id. at 38. Given these issues with the misconduct
report, we agree with the trial court that Attorney Judd had a reasonable basis
for not introducing it at trial.
____________________________________________
4Landrau-Melendez did not attach a copy of the report to his PCRA
petition or his brief, nor did he introduce the report at his PCRA hearing.
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Next, Landrau-Melendez argues that trial counsel was ineffective
because she inadequately cross-examined Captain Michael Lee Ott of the
Lebanon County Correctional Facility. According to Landrau-Melendez, he
asked Attorney Judd to cross-examine Captain Ott about (1) “being how that
chain command that the letter got to the victim,” and (2) who was at the
interview, “to try to poke hole in the interview.” Landrau-Melendez’s Br at 28
(quoting N.T., 3/23/17, at 22). Landrau-Melendez asserts that Attorney Judd
had no reasonable basis not to cross-examine Captain Ott.
The trial court rejected this claim, concluding not only that it “did not
understand what it was [Landrau-Melendez] wanted to ask Captain Ott,” but
also that Landrau-Melendez presented “no evidence . . . that any answers that
Captain Ott could have offered would somehow have been helpful.” 1925(a)
Op. at 12. Further, the trial court noted that Attorney Judd was aware that
Captain Ott held information damaging to Landrau-Melendez’s case and, as a
result, Attorney Judd “believed that the best strategy in dealing with Captain
Ott was to ask as few questions as possible.” Id. Thus, Attorney Judd elected
not to cross-examine Captain Ott more extensively to avoid the release of
damaging information which, under the circumstances, was not ineffective
assistance. Cf. Commonwealth v. Showers, 681 A.2d 746, 753-54
(Pa.Super. 1996) (concluding that decision to limit cross-examination of
Commonwealth’s forensic psychiatrist was reasonable because “an extended
cross-examination might have allowed [the expert] to restate his opinion
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regarding the deceased’s risk of suicide”). Under these circumstances, we
conclude that the trial court correctly dismissed this claim.
Next, Landrau-Melendez argues that trial counsel was ineffective for
failing to subpoena a handwriting expert witness to prove that he did not write
the note the victim received.
The trial court dismissed found this claim meritless, largely because
Landrau-Melendez told Attorney Judd that he had written the letter. At the
PCRA hearing, trial counsel testified that Landrau-Melendez told her that he
had written the note that was given to the victim. N.T., 3/23/17, at 40. Trial
counsel also testified that this informed her decision not to subpoena a
handwriting expert because she “believed it would be unethical to get an
expert” after learning that information. Id. at 41. Because Landrau-Melendez
admitted to trial counsel that he wrote the letter, the trial court did not err in
concluding that this claim was meritless.
Finally, Landrau-Melendez argues that the trial court erred in appointing
Attorney Judd as trial counsel because Attorney Judd had provided ineffective
assistance to Landrau-Melendez in a different case. According to Landrau-
Melendez, because “Attorney Judd was previously found to be ineffective on
[his] behalf, [he] believes that it was not judicially fit to have that same
ineffective counsel appointed to another one of [his] cases.”
The trial court concluded that this claim was meritless because Landrau-
Melendez “never filed a motion with the Court to remove Attorney Judd. . . .
[and] failed to express any concern verbally about Attorney Judd’s
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representation of him.” 1925(a) Op. at 13. In addition, the trial court found
that Attorney Judd acknowledged that she had missed a filing deadline for a
petition for allowance of appeal in Landrau-Melendez’s other case. Id. The
trial court also found that when Attorney Judd disclosed this mistake to
Landrau-Melendez and informed him that he could obtain another attorney in
this case, Landrau-Melendez expressed confidence and satisfaction with her
representation. Id.
Despite being told that he could obtain another attorney, Landrau-
Melendez never filed a motion to remove Attorney Judd. He raised this issue
for the first time in his PCRA petition. Because Landrau-Melendez could have
raised this issue before the trial court, we conclude that Landrau-Melendez
has waived this claim. See 42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state postconviction proceeding.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2017
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Circulated 10/23/2017
09/01/2016 10:05
12:58 AM
PM
IN THE COURT OF COMMON PLEAS LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TH OF
PENNSYLVANIA
v.
MIGUEL LANDRAU~MELENDEZ
...,_ .:".:· .::
f--··
APPEARANCES
Megan Ryland-Tanner, Esquire For Commonwealth of Pennsylvania
DISTRICT ATTORNEY'S
OFFICE
Elizabeth Judd, Esquire For Miguel Landrau-Melendez
PUBLIC DEFENDER'S OFFICE
OPINION BY CHARLES1 J., October 21, 2015
While incarcerated in the Lebanon County Prison, the Defendant
threw a cup of urine at and onto another inmate. He then sent a note to the
victim stating: "Don't press charges. Please don't be a bitch. Don't f***
with my time." Based upon the above evidence and more, a jury found the
Defendant guilty of Aggravated Harassment by a Prisoner. After we
sentenced the Defendant to 21 months to 6 years in a state correctional
facility, the Defendant challenged his conviction by alleging that the jury's
verdict was against the weight of evidence and was not based on. sufficient
evidence. We write this Opinion to affirm our judgment of sentence.
L FACTS
On March 16, 2014, Marq Garloff (hereafter "GARLOFF") was an
inmate housed in Cell Block 3 of the Lebanon County Correctional Facility
located in the City of Lebanon. (N.T. 5). During the morning hours of March
16, 2014, GARLOFF was lying on his bed which was the bottom of the bunk
bed. (N.T. 6). He heard the doors to the cells opening. He then observed
Miguel Landrau-Melendez (hereafter "DEFENDANT') standing in front of his
cell gates. (N.T. 6). DEFENDANT was holding a white Styrofoam cup.
DEFENDANT threw the contents of the white Styrofoam cup at GARLOFF.
(N.T. 10).
GARLOFF testified that the contents of the cup contained urine. He
stated that when DEFENDANT threw the urine at him, it landed on him, his
towel, his bed, his lip and his hair. (N.T. 6). When questioned how he
knew the liquid was urine, GARLOFF testified that some of the urine landed
on his lip and he was able to taste it. In addition, when it landed on his
blanket, it turned the blanket yellow at the wet spots. (N.T. 6). GARLOFF
stated that his towel was hanging on top of the bottom front of his bunk.
At some point either the day of or the day after the incident with the
urine, GARLOFF received a note from DEFENDANT. (N.T. 5). GARLOFF
stated that the note had been delivered to him by someone other than
DEFENDANT. (N.T. 9).
GARLOFF testified that when someone is in prison and is labeled a
snitch, it becomes problematic for the inmate to function through the prison
2
system. In addition there is always the potential that the inmate could be
physically harmed. (N.T. 24). Because of the above, and because
GARLOFF was being threatened by DEFENDANT and half the block and
because of fear and intimidation, GARLOFF wrote a handwritten statement
stating that he did not want to press charges against DEFENDANT.
GARLOFF provided the handwritten statement to DEFENDANT. (N.T. 16-
18). DEFENDANT specifically told GARLOFF to write that the urine did
not get on him and that he would not be pressing charges. (N.T. 19).
GARLOFF did testify under subpoena. However, throughout the
investigation, he cooperated with the Pennsylvania State Police and never
once asked that the charges be withdrawn. (N.T. 25). When introduced as
evidence, GARLOFF was able to identify the towel as the one he had used
for many months. He also indicated that his towel had a rip in it and had
some drawings on it. (N. T. 7 "8; Exh. 4 ).
Bradley Starry (hereafter "STARRY0) also testified at trial. He is
employed as a supervisor of the inmates at the Lebanon County
Correctional Facility. On March 16, 2014, STARRY was assigned to the
block three control station. (N.T. 25).
At some point in time, STARRY was approached by an inmate who
told him about urine being thrown. (N.T. 25). STARRY entered GARLOFF'S
cell and questioned him about the liquid on GARLOFF's prison issue. (N.T.
26, 30). At the time GARLOFF and another inmate were present inside the
cell. (N.T. 30).
3
After questioning GARLOFF, STARRY left the cell block and went to
central control to view the video surveillance tape. (N.T. 26). STARRY
testified that each cell block has their own video surveillance. The video
equipment is set up so that if it is not downloaded and copied, it overrides
itself several days later. (N.T. 30-31). STARRY stated that he did not
burn a copy of the video footage and ultimately the video footage was
overridden and no longer existed. (N. T. 31).
STARRY testified that when he viewed the video, he started from a
· point where the inmate approached him. and reported the incident and
backtracked from there. In so doing, STARRY was able to observe
DEFENDANT in front of GARLOFF's cell. (N.T. 32). Upon observing this,
STARRY returned to GARLOFF's cell and collected various items including
GARLOFF's prison uniform, sheets, towel, and anything else that appeared
tobewet. (N.T.32).
STARRY then pulled DEFENDANT out of the block at which time he
said to DEFENDANT that he already knows why he is out here.
DEFENDANT's response was "you have my DNA on file, you're going to
have to send it to the lab to verify it." (N .T. 34). STARRY did not tell
DEFENDANT about the liquid substance or any of the observations he had
made. (N.T. 34).
Captain Michael Ott who is employed as Captain of Security at the
Lebanon County Correctional Facility also testified at trial. Captain Ott
testified that as part of his investigation, he learned that GARLOFF had
4
been provided with a note that said "Don't press charges. Please don't be
a bitch. Don't f with my time. Please, I'm trying to go home. Thank
you, Miguel." (Exh. 5; N.T. 38). When Captain Ott spoke with DEFENDANT,
DEFENDANT acknowledged that he wrote the note. (N.T. 38).
During trial, a Stipulation of Facts was entered by counsel. Among
other things, this stipulation indicated the following:
(1) Forensic scientists were able to detect no urine on the red prison
uniform; however urine was present on the white towel. The sheets
were not analyzed.
(2) All items were collected by Lebanon County Correctional Facility
Officers on March 16, 2014. ·
(3) All items were turned over to the Pennsylvania State Police on April
6, 2014 and Troopers from the Pennsylvania State Police transported
the red uniform worn by GARLOFF to the Pennsylvania State Police
Crimes Laboratory on April 30, 2014.
(4) On August 28, 2014, Pennsylvania State Troopers transported the
linens to the Pennsylvania State Police Crimes Laboratory for testing.
The linens included the white sheets and the towel. (Exh. 1; N.T. 39-
42).
II. DISCUSSION
A. WEIGHT AND SUFFICIENCY OF EVIDENCE
Because DEFENDANT's sufficiency and weight of the evidence
arguments are related, we will address them together. That being said, we
5
recognize that there is a distinction between challenges to sufficiency and
lack of weight of evidence. That distinction was laid out in Commonwealth
v. Whiteman, 485 A.2d 459 (Pa.Super. 1984}:
A motion for new trial on grounds that the verdict is contrary to
the weight of the evidence concedes that there is sufficient
evidence to sustain the verdict but contends, nevertheless, that
the verdict is against the weight of the evidence. Whether a
new trial should be granted on the grounds that the verdict is
against the weight of the evidence is addressed to the sound
discretion of the trial judge .... The test is not whether the court
would have decided the case in the same way but whether the
verdict is so contrary to the evidence as to make the award of a
new trial imperative so that right may be given another
opportunity to prevail.
Id. at 462, citing Commonwealth v. Taylor, 4 71 A.2d 1228, 1229-1230
(Pa.Super. 1984). If there is insufficient evidence to support a jury's
verdict, the double jeopardy clause of the Fifth Amendment to the United
States Constitution precludes retrial. See Commonwealth v. Whiteman,
supra, (citing Hudson v. Louisiana, 450 U.S. 40, 67 L. Ed. 2d 30 (S.Ct.
1981 )) . On the other hand, "a new trial is a proper remedy when the verdict
is found to be against the weight of the evidence." Id. at 461.
When reviewing a sufficiency of the evidence .claim, we apply a two-
step inquiry. First, we consider all of the evidence in the light most
favorable to the Commonwealth, accepting as true all evidence upon which
the fact-finder could have based the verdict. Commonwealth v. Walker,
874 A.2d 667, 677 (Pa.Super. 2005). Second, we must ask whether that
evidence, along with all reasonable inferences to be drawn therefrom, was
6
sufficient to prove guilt beyond a reasonable doubt. Commonwealth v.
Azim, 459 A.2d 1244, 1246 (Pa.Super. 1983).
In passing upon the credibility of wltnesses and the· weight to be
afforded the evidence produced, the jury is at liberty to believe all, part, or
none of the evidence. Commonwealth v. Price, 610 A.2d 488 (Pa.Super.
1992). We are not to engage in post-verdict credibility discussions, nor are
we permitted to substitute our opinion regarding the facts for that of the
jury. Commonwealth v. Brown, 486 A.2d 441 (Pa.Super. 1984). If the
fact-finder could have reasonably determined from the evidence that all of
the necessary elements of the crime were established, then that evidence
will be deemed sufficient to support the verdict. Commonwealth v.
Hopkins, 747 A.2d 910, 913-14 (Pa.Super. 2000).
The standard to be applied when assessing a challenge to the weight
of evidence imposes a "heavy burden" upon the defendant.
Commonwealth v. Staton, 1998 WL 1297080 (C.P. Philadelphia 1998). A
jury's verdict will be overturned only when it is "so contrary to the evidence
as to shock one's sense of justice." Commonwealth v. Schwartz, 615 A.2d
350, 361 (Pa.Super. 1992). This standard has been described as follows:
"When the figure of Justice totters on her pedestal, or 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 of7?itted).
7
The 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. Commonwealth v. Simmons, 662 A.2d 621,
630 (Pa. 1995). The function of the fact finder is to pass on the credibility
of witnesses and determine the weight to be accorded to a particular piece
of evidence. Id.
In this case, the Commonwealth established the following inculpatory
information:
(1) The video surveillance tape observed by STARRY showed
DEFENDANT standing in front of GARLOFF's cell block prior to the
incident.
(2) GARLOFF identified DEFENDANT as the person who threw the cup of
urine on him.
(3) As indicated by the Stipulation of facts, GARLOFF's towel tested
positive for urine.
(4) DEFENDANT threatened and intimidated GARLOFF into writing a
statement that the urine did not get on him. What purpose would
DEFENDANT have to threaten GARLOFF and have GARLOFF write
such a statement if DEFENDANT was not even involved in this
incident?
(4) DEFENDANT acknowledged to Captain Ott that he provided
GARLOFF with a note that read "Don't press charges. Please don't
be a bitch. Don't f with my time. Please, I'm trying to go home.
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Thank you, Miguel." Once again, why would DEFENDANT have even
written this note to GARLOFF if he was innocent of any wrongdoing?
Based on the above information and more, we believe that the jury
possessed more than enough evidence to find DEFENDANT guilty of the
crimes charged. Moreover, we cannot say that the jury's verdict was so
"shocking" as to be against the weight of evidence. Accordingly, the Post-
Sentence Motions filed by DEFENDANT based upon weight and sufficiency
of evidence will be denied.
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