Com. v. Landis, W.

J-A05036-22

2022 PA Super 97

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

WILLIAM R. LANDIS JR. : No. 611 MDA 2021

Appeal from the Order Entered April 16, 2021

In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP-06-CR-0005405-2009

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*

DISSENTING OPINION BY KUNSELMAN, J.: FILED MAY 26, 2022

Initially, I would find that the Commonwealth waived its challenge to

the trial court’s discretionary ruling. On the merits, I would find that the trial

court properly considered the issue that William R. Landis, Jr. raised in his

post-sentence motion for a new trial and did not abuse its discretion by

granting the motion. Finally, even if the trial court did not apply the correct

standard, I would remand for it to do so. Therefore, I respectfully dissent.

The preeminent issue throughout this case’s extensive history has been

whether Landis had the requisite mental state for murder of the first degree.

At this second trial, both sides presented evidence and argument to the jury

about the diminished-capacity defense, which would demonstrate that Landis

was intoxicated to an extent that he was unable to form the requisite intent.

Commonwealth v. Mason, 130 A.3d 601, 630 (Pa. 2015) (citing

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* Former Justice specially assigned to the Superior Court.

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Commonwealth v. Spotz, 896 A.2d 1191, 1218 (Pa. 2006)). Notably, if

Landis had already formed the specific intent to kill before becoming

intoxicated, this defense would fail. See Commonwealth v. McMurray, 47

A. 952, 953–54 (Pa. 1901) (approving a jury instruction that once a defendant

forms “the specific purpose to kill,” his subsequent voluntary intoxication does

not prevent a conviction for murder of the first degree).

The Commonwealth’s forensic psychiatrist, Dr. John O’Brien, testified

directly to the key issue of whether Landis could and did possess the intent to

kill. Dr. O’Brien concluded that Landis was capable of forming the intent to

kill. N.T., 9/15/20, at 1140. Dr. O’Brien based his conclusion in part on

investigative interviews of the two Florida hotel witnesses, which he claimed

documented that Landis discussed his intention to kill and said he was going

to shoot his wife. Id. at 1138, 1146. Dr. O’Brien continued:

So there’s an awful lot there that indicates that [Landis] did have

a presence of mind, an awareness of the gun and did use the gun

in a manner that reflected that it was shot a number of times, not

just once as you would expect to see in an accidental gun

discharge, and that the victim was a moving victim so that it

required moving of the gun, and the aim improved with each shot.

And so in my opinion, there is evidence that is consistent

with the shooting being an intentional act. But that’s not my

assessment to perform. That’s not my opinion to render.

Id. at 1146. The jury convicted Landis of murder of the first degree.

Landis filed a post-sentence motion in which he argued that the evidence

demonstrated that he did not have a specific intent to kill the victim, detailing

why his own expert Dr. Larry Rotenberg’s testimony was better supported

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than Dr. O’Brien’s. He challenged Dr. O’Brien’s testimony, which was the only

time that the jury heard the unsupported assertion that Landis had previously

expressed an intention to shoot his wife.1 The trial court heard argument and

granted a new trial on exactly this basis.

As a threshold matter, I would find that the Commonwealth waived its

issue. In its brief, the Commonwealth conflates the standards for challenges

to the sufficiency and to the weight of the evidence, as well as a harmless-

error standard. Commonwealth’s Brief at 21–29 (arguing that the weight of

the evidence, including Dr. O’Brien’s testimony, was “sufficient” and that his

inaccuracy was harmless error because the jury could infer intent from the

other evidence). Landis cogently argues that we should find waiver based on

the same defect in the Commonwealth’s statement of matters complained of

on appeal. Landis’ Brief at 9–11. I would find that by failing to indicate how

the trial court abused its discretion, the Commonwealth has not properly

framed its issue for our review. See Commonwealth v. Rogers, 259 A.3d

539, 541–42 (Pa. Super. 2021) (finding a challenge to a trial court’s ruling on

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1 The Majority emphasizes that when Dr. O’Brien testified, the jury had already

heard the witnesses whose police statements he described. Majority Opinion,

at n.7. However, the jury could not glean from the witnesses’ testimony what

they had told the police—Ms. Brown did not remember, and Ms. Johnson was

not asked. N.T., Trial Vol. II, 9/10/20, at 502 (“Q. You gave a statement to

[the detectives]? A. I don’t remember what I said; but, yes, I do. I think I

did. I don’t remember.”); id. at 533 (addressing only the setting of the police

interview, not the contents). Both were excused before Dr. O’Brien testified.

Dr. O’Brien’s testimony was the only evidence before the jury of what Ms.

Brown and Ms. Johnson told police.

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a weight-of-the-evidence claim to be meritless where the appellant did not

argue that the court abused its discretion).2

Conversely, I would find that Landis preserved his challenge to the

weight of the evidence. Landis filed a timely post-sentence motion, in which

he detailed why the weight of the competing experts was in his favor on the

specific issue of diminished capacity. See Pa.R.Crim.P. 607(A)(3) (providing

for challenges to the weight of the evidence to be raised in a post-sentence

motion). He noted defects in Dr. O’Brien’s testimony and argued that the

weight of the evidence favored Landis. N.T., 2/11/21, at 8–11, 21. The trial

court granted Landis’ motion for a new trial based on these arguments.

Because Landis argued a specific issue, which the trial court addressed, he

preserved his challenge. Cf. Commonwealth v. Widmer, 689 A.2d 211 (Pa.

1997) (finding a challenge to the weight of the evidence to be preserved where

the trial court addressed it, despite the defendant not filing a post-sentence

motion).

Accordingly, I would find that the trial court did not abuse its discretion.

Rather, it properly assessed the specific challenge that Landis raised. Whether

to grant a new trial based on the weight of the evidence is within the trial

court’s sound discretion:

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2 Although the Commonwealth correctly stated that the standard of review is

abuse of discretion, it never argued how the trial court’s decision overrode or

misapplied the law or how the trial court’s judgment was manifestly

unreasonable or was the product of partiality, prejudice, bias, or ill-will.

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[O]ne of the least assailable reasons for granting or denying a new

trial is the lower court’s conviction that the verdict was or was not

against the weight of the evidence and that a new trial should be

granted in the interest of justice. A new trial is warranted in this

context only when the verdict is so contrary to the evidence that

it shocks one’s sense of justice and the award of a new trial is

imperative so that right may be given another opportunity to

prevail.

Commonwealth v. Smith, 181 A.3d 1168, 1187 (Pa. Super. 2018) (citations

omitted).

In this context,

the trial court is under no obligation to view the evidence in the

light most favorable to the verdict winner. Tibbs [v. Florida, 457

U.S. 31, 38 n.11 (1982)].fn3 . . . 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.

[Commonwealth v.] Thompson, [648 A.2d 315 (Pa. 1994)]. 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.” Id.

[footnote 3] In Tibbs, the United States Supreme Court found the

following explanation of the critical distinction between a weight

and sufficiency review noteworthy:

When a motion for new trial is made on the ground that the

verdict is contrary to the weight of the evidence, the issues

are far different.... The [trial] court need not view the

evidence in the light most favorable to the verdict [winner];

it may weigh the evidence and in so doing evaluate for itself

the credibility of the witnesses. If the court concludes that,

despite the abstract sufficiency of the evidence to sustain

the verdict, the evidence preponderates sufficiently heavily

against the verdict that a serious miscarriage of justice may

have occurred, it may set aside the verdict, grant a new

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trial, and submit the issues for determination by another

jury.

Tibbs[,] 457 U.S. at 38 n.11[,] quoting United States v.

Lincoln, 630 F.2d 1313 ([8th Cir.] 1980).

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000). Indeed, “it

is not only a trial court’s inherent fundamental and salutary power, but its

duty to grant a new trial when it believes the verdict was against the weight

of the evidence and resulted in a miscarriage of justice.” Sprang & Co. v.

U.S. Steel Corp., 545 A.2d 861, 866 (Pa. 1988) (quoting Thompson v. City

of Phila., 493 A.2d 669, 672 (Pa. 1985)). While the credibility of witnesses

is “primarily” a determination for the jury, “when the trial court is satisfied

that the jury’s verdict was based on incredible or unbelievable evidence, the

court is obligated to grant a new trial.” Houseknecht v. Walters, 590 A.2d

20, 24 (Pa. Super. 1991) (citing Gougher v. Hansler, 130 A.2d 150 (Pa.

1957)).3 Finally:

Regarding the “abuse of discretion” standard of review, [the

Pennsylvania Supreme] Court has explained that 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 [trial] judge. Absent an abuse of that discretion,

an appellate court should not disturb a trial court’s discretionary

ruling. An appellate court will not find an abuse of discretion

based on a mere error of judgment, but rather ... where the [trial]

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3 Houseknecht quoted Commonwealth v. Farquharson, 354 A.2d 545,

550 (Pa. 1976), to illustrate that review of jury determinations of credibility is

inherent in only the trial court’s task in ruling on a motion for a new trial, not

in appellate review of that ruling. Although Farquharson has since been held

to pertain to a sufficiency claim, Commonwealth v. Brown, 52 A.3d 1139,

1157 n.18 (Pa. 2012), its logic stays true as underpinning a weight claim.

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court has reached a conclusion which overrides or misapplies the

law, or where the judgment exercised is manifestly unreasonable,

or the result of partiality, prejudice, bias or ill-will.

Importantly, an appellate court should not find that a trial

court abused its discretion merely because the appellate court

disagrees with the trial court’s conclusion. Indeed, when

reviewing the trial court’s exercise of discretion, it is improper for

an appellate court to “step[ ] into the shoes” of the trial judge and

review the evidence de novo. In other words, an appellate court

may not disturb a trial court’s discretionary ruling by substituting

its own judgment for that of the trial court.

Commonwealth v. DiStefano, 265 A.3d 290, 297–98 (Pa. 2021) (citations

and quotation marks omitted).

Here, the trial court observed the entire proceeding and understood that

whether Landis could and did form the specific intent to kill was the central

issue of the case. Opinion, 4/16/21, at 4 (“This court . . . knows this case

better than any other one presided over in the last twenty-nine years on the

bench.”); id. at 2, 5 (summarizing defense at trial). The court described the

weight of the testimony from Dr. Rotenberg and Dr. O’Brien, the two experts

who addressed this central issue. Id. at 2–4. The court found six defects

with Dr. O’Brien’s presentation: (1) he did not retain his notes, (2) he misled

the jury about his reasons for doing so, (3) he falsely testified that Landis had

told the Florida hotel witnesses that he intended to shoot his wife, (4) he had

framed this evidence in the context of the jury’s crucial determination in this

case, (5) his report was never admitted into evidence, and (6) he falsely

testified about the order of shots and that Landis improved his aim. Trial

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Court Opinion, 6/29/21, at 11–14. The trial court concluded that these defects

unfairly surprised and prejudiced Landis. Id. at 16.

Nothing here reflects that the trial court abused its discretion.

DiStefano, supra. Although the trial court did not use formulaic terms like

“miscarriage of justice” or “shocks one’s sense of justice,” it assessed the

effect on justice of the key expert testimony that the Commonwealth and

Landis presented. Indeed, it is hard to read the court’s conclusion that after

“Dr. O’Brien misled the jurors with lies, speculation, and undocumented

opinions,” they “were unable to make a knowing decision based on the facts,

the evidence, and the expert reports,” which caused an unlevel “playing field”

as anything but a finding of a miscarriage of justice that shocks the conscience

of the trial court. See Houseknecht, supra (obligating a trial court to grant

a motion for a new trial based on the weight of the evidence when it finds

“that the jury’s verdict was based on incredible or unbelievable evidence”).

Therefore, I would find that the trial court did not abuse its discretion.

Finally, even if the trial court did not apply the correct standard when it

granted Landis a new trial, the appropriate remedy would be to remand for

the trial court to apply the correct standard. It is not to simply reverse the

grant of a new trial and reinstate the judgment of sentence. Based on our

standard of review, when a trial court does not apply the correct standard in

evaluating a weight-of-the-evidence claim, our role is to remand with

directions to determine whether the jury verdict shocks the trial court’s sense

of justice. Commonwealth v. Sullivan, 820 A.2d 795, 807 (Pa. Super.

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2003) (citing Widmer, 744 A.2d 745, and Commonwealth v. Brown, 648

A.2d 1177 (Pa. 1994)).

For these reasons, I respectfully dissent.

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