The opinion
J-S62013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD RAMSEY
Appellant No. 2198 MDA 2015
Appeal from the Judgment of Sentence October 19, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004499-2013
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 30, 2016
Appellant Edward Ramsey appeals from the October 19, 2015
judgment of sentence entered in the Dauphin County Court of Common
Pleas following his jury trial conviction for robbery (threat of immediate
serious bodily injury).1 We affirm.
The trial court accurately sets forth the factual and procedural history
in its Pa.R.A.P. 1925(a) opinion and we have no need to restate them here.2
1925(a) Opinion, 3/16/2016, at 1-8.
Appellant raises the following issues on appeal:
____________________________________________
1
18 Pa.C.S. § 3701(a)(1)(ii).
2
On page one of its Pa.R.A.P. 1925(a) opinion, the trial court states the jury
trial occurred in 2016, however, the jury trial actually occurred in 2015.
J-S62013-16
I. Did not the court err in denying [Appellant’s] motion to
preclude the Commonwealth from introducing testimony
from an expert in handwriting analysis when such
testimony was improper expert testimony and was
otherwise irrelevant?
II. Did not the [trial] court abuse its discretion by failing to
grant [Appellant] a new trial on the basis that the guilty
verdict was against the weight of the evidence?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
Appellant’s first issue challenges the admission of expert testimony.
This court applies the following standard of review in cases involving the
admission of expert testimony:
[T]he admission of expert testimony is a matter left largely
to the discretion of the trial court, and its rulings thereon
will not be reversed absent an abuse of discretion. An
expert’s testimony is admissible when it is based on facts
of record and will not cause confusion or prejudice.
Commonwealth v. Watson, 945 A.2d 174, 176 (Pa.Super.2008) (internal
quotation marks and citations omitted).
Appellant’s second issue challenges the weight of the evidence. “One
of the least assailable reasons for granting or denying a new trial is the
[trial] court’s conviction that the verdict was or was not against the weight
of the evidence.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013)
(quoting Commonwealth v. Widmer, 744 A.2d 745 (Pa.2000)). A weight
of the evidence claim concedes that the Commonwealth introduced sufficient
evidence. Commonwealth v. Charlton, 902 A.2d 554, 561
(Pa.Super.2006), appeal denied, 911 A.2d 933 (Pa.2006). A trial judge
should not grant a new trial due to “a mere conflict in the testimony or
-2-
J-S62013-16
because the judge on the same facts would have arrived at a different
conclusion.” Clay, 64 A.3d at 1055. Instead, the trial court must examine
whether “‘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. (quoting Widmer, 744 A.2d at 752). Only where the
jury verdict “is so contrary to the evidence as to shock one’s sense of
justice” should a trial court afford a defendant a new trial. Id.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Richard A.
Lewis, we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions
presented. (See 1925(a) Opinion, at 8-15) (finding: (1) opinion of
handwriting expert properly admitted where: expert had specialized
knowledge beyond that of layperson; expert’s analysis and conclusion were
based on reasonable degree of scientific certainty; expert concluded
Appellant probably wrote note; expert testified as to factors considered in
her determination and her analysis; expert’s opinion fell at top of 9-point
scale, which is more refined scale used and recommended by those in her
profession; and expert’s work was peer-reviewed; (2) expert opinion:
relevant where it evidenced Appellant’s intent when he entered bank and
testimony made material fact, i.e., who wrote note, more or less likely, and
not so prejudicial as to require exclusion; and (3) verdict not against weight
of evidence where: bank employee testified that his identification of
-3-
J-S62013-16
Appellant as person who robbed bank was based on “first hand” experience
on date of incident and weight to be afforded to fact that employee had seen
email from bank with Appellant’s picture was for jury to determine; although
expert in fingerprint analysis could not determine age of fingerprint, bank
employee’s testimony established Appellant exited from bank and touched
door where print was retrieved; and, as discussed above, court properly
admitted testimony of handwriting expert). Accordingly, we affirm on the
basis of the trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2016
-4-
Circulated 08/11/2016 09:40 AM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
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judgment of sentence entered October 19, 2015. This opinion is written pursuant to
Pa.RAP. 1925(a).
PROCEDURAL HISTORY
Appellant, Edward Ramsey was charged with a single count of Robbery - Threat
of Immediate Bodily lnjury.1 A jury trial was held on August 18-19, 2016, at the
conclusion of which Appellant was found guilty.
A sentencing/revocation hearing was held on October 19, 2015, at which time
Appellant was sentenced to a term of incarceration for sixty (60) to one-hundred twenty
(120) months in a State Correctional lnstitution.2 He was also ordered to pay the costs
of prosecution, a fine of $200 and restitution in the amount of $550. Timely Post-
Sentence Motions were filed requesting a new trial or arrest of judgment and
modification of sentence. Following review of the motions and the Commonwealth's
response, this Court denied relief by order dated November 19, 2015.
1
18 Pa.C.S. §3701(A)(1)(ii).
2
At docket nos. 3365 CR 2013 and 4497 CR 2013, Appellant pied guilty to the summary offense of
criminal trespass and one count of escape. Appellant was sentenced on these dockets at the October
19, 2015, hearing. On the same date his parole was revoked and he was resentenced at docket nos.
1624 CR 2009, 5886 CR 2009, and 1170 CR 2010. None of these sentences are at issue in the instant
appeal.
The instant appeal to the Pennsylvania Superior Court was timely filed on
December 14, 2015, and raises the following issues for review:
1. The court erred in denying Defendant's motion to preclude the
Commonwealth from introducing testimony from an expert in handwriting
analysis. The expert testified that she could give "no conclusive opinion."
Such testimony was improper expert testimony under Pa.RE. 702 and
was otherwise irrelevant and inadmissible under Pa. R. E. 402 and 403.
Any minimal relevance was outweighed by the tendency of such evidence
to unduly prejudice Defendant.
2. The court abused its discretion in finding that the jury's verdict was
not against the weight of the evidence. The verdict was against the weight
of the evidence so as to shock one's sense of justice. First, the
identification testimony of the complaining witness was tainted by a
photograph that was shown to the witness prior to trial. Second, the
Commonwealth's expert in fingerprint analysis could not give a temporal
nexus for his conclusion, i.e., he could not testify that Defendant's
fingerprints were placed at the crime scene at the time of the robbery.
Third, the Commonwealth's expert in handwriting analysis could not
render a conclusive opinion that Defendant wrote the note that was
handed to the complaining witness.
For the reasons set forth below, this Court finds that Appellant's claims on appeal
are without merit.
FACTUAL BACKGROUND
The jury trial held in this matter established the following facts: On June 3, 2013,
the Mid Penn Bank ("bank") located at 4509 Derry Street, Swatara Township,
Pennsylvania, was robbed in the early afternoon. Mr. Luciano DiCesare ("Mr.
DiCesare") was working as a teller at service counter number one when, between 1 :00
and 2:00 p.m., a black male got on line behind a female who was conducting a
transaction with him. (Notes of Testimony at 33-35; 50).3 When the transaction was
completed, the male approached Mr. DiCesare's window and placed a note on the
3
Hereinafter "N.T."
2
counter which read, "Give me $100.00 and $50.00, no die [sic] pack or funny stuff. If
anything happen [sic] before I get out the door I shoot you 15\" (N.T. at 38; 53; Commw.
Exh. 1 ). As Mr. Dicesare was reading the note and mentally processing what was
happening, the male was mumbling "give me all your hundreds and fifties." (N.T. at 43).
Per his training, Mr. Dicesare handed over $550, retained the demand note and when
the assailant left, sounded the silent alarm. (N.T. at 35-38).
While the event was occurring, Mr. Dicesare observed the robber from
approximately 2 12 feet away in an attempt to remember as many details of his
appearance as possible. (N.T. at 38; 41-42). When the police arrived a few minutes
later, he provided a description to Swatara Township Police officers. (N.T. at 39; 45).
The assailant was described as an African American male approximately 5' 1 O" tall and
weighing around 230 pounds. (N.T. at 36; 54-56). He wore dark rimmed glasses, a
white V-neck T-shirt, dark shorts, a dark hat and scruffy beard. (Id.) Mr. DiCesare
observed the robber leave the bank through the front double doors and turn right on the
street. (N.T. at 39; 43). At trial, Mr. DiCesare positively identified Appellant as the
person who passed the note and took the money from him at the bank on June 3, 2013
and as the person in the still photograph obtained from the security video that day. (N.T.
at 45-46).
Detective David Horner ("Det. Horner") was called to the crime scene to
photograph and process the scene for physical evidence. (N.T. at 62). Det. Horner is
the evidence custodian and crime scene technician for the Swatara Township Police
Department. (N.T. at 62). He photographed the demand note on the teller counter
before collecting it for processing. (N.T. at 63). Det. Horner viewed the security video to
3
determine where he should take photographs and dust for fingerprints. (N.T. at 63-64).
He checked the teller counter and the bank doors for fingerprints. (N.T. at 65-68). None
were found in the teller area but, three were lifted from the interior part of the exterior
door.4 As police did not have a suspect on the date of the incident, Det. Horner
processed the fingerprints and sent them to the Pennsylvania State Police ("PSP")
Crime Lab for analysis and possible identification. (N.T. at 68). Horner also sent the
demand note to the PSP Crime Lab for handwriting analysis. (N.T. at 69). Later, when
Appellant became a suspect in the investigation, a handwriting sample was obtained
from him for purposes of comparison. (/d.)
With regard to the fingerprints submitted to the PSP, Trooper James Petti (''Tpr.
Petti") was assigned to analyze them. Tpr. Petti is an AFIS examiner within the PSP
Bureau of Forensic Services wherein he is responsible for the evaluation of fingerprint -
related evidence. (N.T. at 76). Following questioning on his qualifications, he was
admitted to testify as an expert witness. (N.T. at 76-81).
To analyze the fingerprints submitted by the Swatara Township Police
Department, Tpr. Petti utilized the ACE-V (analysis, comparison, evaluation and
verification) methodology. (N.T. at 86-92). He concluded that one fingerprint, a right
index number two finger, belonged to Appellant upon comparison with a known print.
(N.T. at 93-94). Tpr. Petti memorialized his analysis and findings in a report that the
Commonwealth admitted into evidence at trial. (N.T. at 106; Commw. Exh. 4). Tpr. Petti
4
The entrance to the bank consisted of two sets of double glass doors- one exterior set and one interior
set - with a breezeway in between. (N.T. at 67).
4
rendered his opinion based upon a reasonable degree of scientific certainty. (N.T. at
95).
The Swatara Township Police also submitted the demand note to the PSP for
analysis. Lieutenant Sandra Miller ("Lt. Miller") is the Division Director of the Policy and
Program Services Division of the PSP Bureau of Research and Development. (N.T. at
108). At the time of the incident, Lt. Miller was a forensic/questioned documents
examiner in the Questioned Documents Laboratory of the PSP Crime Lab and was
called upon to examine the note. (N.T. at 108). Lt. Miller testified to her education,
training experience and other professional credentials. (N.T. at 108-114). This Court
admitted her to testify as a handwriting expert. (N.T. at 114).
Lt. Miller examined the demand note that had been presented at the bank
robbery. She followed a several step procedure to make an impressed writing
specimen for the purpose of comparison to a known writing sample obtained from
Appellant. (N.T. at 116-128). Upon comparison with the document written by Appellant,
Lt. Miller concluded that the writer probably did write the handwriting found on the
demand note. (N.T. at 124). This conclusion fell near the top of the lab's nine point
opinion scale which ranges from one (1) "elimination of a writer" to nine (9) "did write."
(N.T. at 128). Lt. Miller's opinion was rendered within a reasonable degree of scientific
certainty and memorialized in two reports. (N.T. at 128-129; Commw. Exhs. 5, 6).
Detective James Moyer ("Det. Moyer") responded to the bank robbery call on
June 3, 2013, and assisted Det. Horner in the processing of the crime scene including
the collection of fingerprints. (N.T. at 155-157). He also reviewed security video from
5
neighboring businesses in furtherance of the investigation. (N.T. at 157-158). According
to Det. Moyer, as of that date, police had no suspects so the investigation was "tabled"
while they waited for lab results. (N.T. at 158-159).
The investigation was reopened upon receipt of the impressed writing from the
PSP. Upon examination of the impressed writing, Det. Moyer observed the word
"Anderson", a listing of several cities, and numbers that appeared to be telephone
numbers and/or zip codes. (N.T. at 159-160). One of the numbers belonged to
Ritescreen Corporation in Elizabethville, Pennsylvania. (N.T. at 160). Det. Moyer spoke
to officials at Ritescreen and discovered that some of the numbers on the note
corresponded with trailer numbers for tractor-trailer trucks. (N.T. at 160-161). Two
trailers with the numbers 3005 and 3051 had travelled into Pennsylvania on May 23rd
and were subcontracted to Anderson Logistics. (N.T. at 161). When Det. Moyer
conducted further investigation at Anderson, he discovered that those particular trailers
had been sublet to UTS. (N.T. at 161).
Personnel at UTS confirmed that those trailers were driven in tandem by
Appellant and an individual named Ricky Walker ("Mr. Walker"). (N.T. at 161). Mr.
Walker has known Appellant since they were children. (N.T. at 138). During June 2013,
he had been working with Appellant as part of a truck driving team for UTS. (N.T. at
138-140). The pair had a regular route starting in Carlisle, Pennsylvania with stops in
Luray, Virginia, Menomonie, Wisconsin, Des Moines, Iowa and returning to Carlisle.
(N.T. at 139). The pair would share the truck cab and alternate driving and sleeping.
(N.T. at 139-140).
6
)
A few days prior to June 3, 2013, Walker and Appellant had finished delivering a
load on their typical route. (N.T. at 141-142). The opportunity for a one-man trip to New
Hampshire arose and, according to Walker, Appellant took it. (N.T. at 141-142).
Sometime in the afternoon of June 3, 2013, Walker received a call and learned that the
load had never made it to New Hampshire. (N.T. at 142). Later, he was contacted by
his employer, UTS, about the discovery of the abandoned trailer on Division Street in
Harrisburg, Pennsylvania. (N.T. at 143-144). Walker was instructed to rent a truck and
make the trip to New Hampshire to complete the deliveries. (N.T. at 143-144). He made
the deliveries and returned the next day. (N.T. at 144). Through his investigation, Det.
Moyer verified with UTS that this story was accurate. (N.T. at 161-162).
As Det. Moyer now had a suspect in mind, he obtained Appellant's driver's
license photo from PennDOT. (N.T. at 162). A comparison was made with the bank's
security video footage which revealed that the person on the video had physical
characteristics which were very similar to Appellant's. (N.T. at 162). The driver's license
information stated that Appellant's height is 5'11". (N.T. at 163).
Det. Moyer continued the investigation by speaking with Mr. Walker and with
Appellant's wife. (N.T. at 163). He went to see Appellant's wife to request consent to
search his clothing. She provided him with a black hat and black shorts. (N.T. at 162-
163). Det. Moyer testified that the black hat and black cargo style shorts recovered
from Appellant's wife matched the clothing worn by the suspect in the bank security
video. (N.T. at 163-164).
7
Mr. Walker testified to keeping a stenographer's tablet in the cab on which he
kept his notes. (N.T. at 140-141 ). He also identified the demand note as a sheet of
paper that could have come from the tablet he always kept in the truck. (N.T. at 141).
Christopher Zampogna, the security officer for Mid Penn Bank testified that upon
a search of its database he determined that Appellant was not a customer of the bank.
(N.T. at 175-176).
DISCUSSION
Appellant first challenges this Court's ruling on the admission of the handwriting
expert's testimony. Initially we note that when an appellant challenges to the
admissibility of evidence such claims are reviewed under an abuse of discretion
standard. The Supreme Court case of Commonwealth v. Alicia is instructive on the
well-established principles regarding the admissibility of evidence as well as expert
testimony:
[A]dmissibility of evidence is within the sound discretion of the trial court,
and this Court will not reverse a trial court's decision concerning
admissibility of evidence absent an abuse of the trial court's discretion.
Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 623 (2010). An abuse
of discretion will not be found based on a mere error of judgment, but
rather exists where the 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.
Commonwealth v. Eichinger, 591 Pa. 1, 915A.2d 1122, 1140 (2007).
Under our Rules of Evidence, expert testimony is permitted when the
expert's scientific, technical, or other specialized knowledge is beyond that
of the average layperson and will help the fact-finder to understand the
evidence or determine a fact in issue. Pa.RE. 702(a) and (b);
Commonwealth v. Lopez, 578 Pa. 545, 854 A.2d 465, 470 (2004).
Commonwealth v. Alicia, 625 Pa. 429, 440-41, 92 A.3d 753, 760
(2014)(footnote omitted).
8
· ..
j
Pennsylvania Rule of Evidence 702 governs the admissibility of testimony by
expert witnesses. Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge is
beyond that possessed by the average layperson;
(b) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue; and
(c) the expert's methodology is generally accepted in the relevant field.
On appeal, the claim is that Lt. Miller's testimony should have been precluded
because she stated that she could "give no conclusive opinion." Rule 702 explicitly
says that if a witness is qualified as an expert by meeting the criteria set forth in the rule,
he or she "may testify in the form of an opinion or otherwise .... " Appellant is asserting
that since a "conclusive opinion" was not rendered, the Court improperly permitted to
testify as an expert. We disagree.
The Pennsylvania Courts have held that it is not required that an expert witness
testify using "magic words." Commonwealth v. Baez, 554 Pa. 66, 101, 720 A.2d 711,
728 (1998); Commonwealth v. Spotz, 756 A.2d 1139, 1160-61 (Pa. 2000). Rather,
courts must look to the substance of the testimony to determine whether the requisite
reasonable certainty has been established instead of a foundation of speculation. Id.
Viewing Lt. Miller's testimony as a whole, this Court finds that she was properly
admitted as an expert under Rule 702.
9
In order to qualify as an expert witness, the Pennsylvania Supreme Court has
held that:
... a witness must possess, at a minimum, "more expertise than is within
the ordinary range of training, knowledge, intelligence, or experience."
The test is "whether the witness has a reasonable pretension to
specialized knowledge on the subject matter in question."
Bennett v. Graham, 552 Pa. 205, 209-10, 714 A.2d 393, 395
(1998)(internal citations omitted).
Lt. Miller testified to the handwriting analysis of the demand note used by the
perpetrator of the bank robbery. It is beyond contention that the specialized knowledge
possessed by her is well beyond that possessed by the average lay person on the jury.
Lt. Miller testified to her education and training which included a Bachelor of Science
Degree from Penn State University in the administration of justice field, two years of full
time on the job training with the PSP, continuing training courses at the Rochester
Institute of Technology, the FBI, the Canon photocopier headquarters, the BIC factory,
the Pennsylvania Lottery Commission, the Bureau of Alcohol, Firearms and Tobacco.
(N.T. at 109-110). At the PSP, she was trained by working side by side with Questioned
Document Examiners who had a combined length of experience of 40 - 50 years. (Id.)
Lt. Miller also testified to being a member of the American Academy of Forensic
Scientists and the Mid-Atlantic Association of Forensic Scientists. (N.T. at 111). She
has also testified as a qualified expert in court cases 12-15 times. (N.T. at 111-112). It
is quite clear that Lt. Miller is highly educated with many years of pertinent experience
working with questioned documents that would qualify her as a hand writing expert.
With respect to Lt. Miller's examination of the demand note, her analysis and
ultimate conclusion were presented within a reasonable degree of scientific certainty
10
that Appellant was probably the writer of the demand note. (N.T. at 127-129). Appellant
takes issue with the fact that Lt. Miller stated Appellant probably did write the demand
note. However, review of her testimony reveals the extensive analysis and
consideration of many factors utilized in reaching her conclusion. Lt. Miller's opinion fell
at the top of a 9-point opinion scale used by the PSP which is more refined and
extensive than the 5-point scale used by other laboratories. (N.T. at 125-129). She
explained that it is her preference to use the 9-point scale because it allows her to form
the opinion to her level of confidence. (N.T. at 128). Additionally, Lt. Miller said that the
American Society for Testing Materials recommends the 9-point scale. (N.T. at 131).
Further, her work and conclusion is peer reviewed. (N.T. 129-130). This Court
reiterates that an expert is not required to provide "magic words" for the testimony to be
properly admitted under R. 702. See Baez; Spatz, supra. Viewing Lt. Miller's testimony
as a whole, the evidence was properly admitted as her knowledge is well beyond a
layperson's knowledge and her conclusions rose to the level of a reasonable degree of
scientific certainty.
Appellant also argues that Lt. Miller's testimony should not have been admitted
because it is irrelevant and inadmissible under Pa.R.E. 402 and 403, and any minimal
relevance is outweighed by the prejudicial nature of the evidence. Again, this Court
disagrees.
The well-established rules of determining the admissibility of evidence have been
stated by Pennsylvania courts for many years, as follows:
In determining whether evidence should be admitted, the trial court must
weigh the relevant and probative value of the evidence against the
11
prejudicial impact of the evidence. Evidence is relevant if it logically tends
to establish a material fact in the case or tends to support a reasonable
inference regarding a material fact. Although a court may find that
evidence is relevant, the court may nevertheless conclude that such
evidence is inadmissible on account of its prejudicial impact.
*****
The threshold inquiry with admission of evidence is whether the evidence
is relevant. Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less probable, or
supports a reasonable inference or presumption regarding the existence
of a material fact. In addition, evidence is only admissible where the
probative value of the evidence outweighs its prejudicial impact.
Otherwise relevant evidence may be excluded if its probative value is
outweighed by its potential for prejudice. The probative value of the
evidence might be outweighed by the danger of unfair prejudice, confusion
of the issues, misleading the jury, undue delay, pointlessness of
presentation, or unnecessary presentation of cumulative evidence.
*****
However, evidence will not be prohibited merely because it is harmful to
the defendant. Exclusion is limited to evidence so prejudicial that it would
inflame the jury to make a decision based upon something other than the
legal propositions relevant to the case. Commonwealth v. Antidormi,
2014 PA Super 10, 84 A.3d 736, 749-50 appeal denied, 626 Pa. 681, 95
A.3d 275 (2014)(internal citations and quotation marks omitted).
The demand note is evidence of the actor's intent when he entered the bank and
approached Mr. DiCesare's teller station. Lt. Miller's testimony was relevant to the
jury's determination of who was the person that presented the note with the intent to rob
the bank. The testimony clearly made a material fact, namely who presented the note,
more or less probable. Appellant has not given this Court a single reason why he
believes that this relevant evidence was so prejudicial it should have been excluded. As
state above, evidence will not be prohibited merely because it is harmful to the
defendant. Antidormi, supra.
12
Appellant next challenges the jury's verdict as being against the weight of the
evidence. The offense for which Appellant was convicted is defined, in pertinent part,
as follows:
Appellant contends that the verdict is against the weight of the evidence for three
reasons which we will address in order. Initially, this Court notes that when the weight
of the evidence challenged, our Supreme Court has stated that:
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 whether the verdict is against the weight of the evidence. The
fact finder 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. Weathers, 95 A.3d 908 (Pa. Super. 2014) citing Commonwealth v.
Diggs, 597 Pa. 28, 949 A.2d 873, 879-80 (Pa. 2008) (internal citations omitted). When
a defendant motions for a new trial based on a weight of the evidence claim, he
concedes that sufficient evidence exists to sustain the jury's verdict. Commonwealth v.
Rosette, 863 A.2d 1185, 1191-1192 (Pa. Super. 2004).
Appellant's first argument in support of his weight of the evidence challenge
contends that the identification testimony of Mr. DiCesare was tainted by a photograph
that was shown to him prior to the trial. Without the benefit of any specifics regarding
what photograph was shown and when, this Court surmises that the reference is to an
email circulated by bank security in August 2013 that attached a picture of the person
13
arrested for the robbery. (N.T. at 45-46). However, this argument has no merit as Mr.
DiCesare unequivocally testified that his identification of Appellant as the person who
robbed him on June 3, 2013, was based on his "[f]irsthand experience" on the date of
the incident. (N.T. at 46). The weight and credibility to be afforded to the fact that Mr.
DiCesare had seen the email from bank security prior to the preliminary hearing is a
duty within the purview of the jury. This Court finds that it is entirely reasonable that the
jury accepted Mr. DiCesare's testimony regarding the basis of his identification
testimony.
Next, Appellant argues that the verdict is against the weight of the evidence
because the expert in fingerprint analysis could not give a "temporal nexus for his
conclusion." This position is, again, without merit. Tpr. Petti testified extensively
regarding his analysis methods and the "ten points of correspondence" between the
latent print from the bank and the known print from Appellant that led him to conclude
within a reasonable degree of scientific certainty it belonged to Appellant. (N.T. at 86-
95). Although he did state that could not tell the age of the print, Mr. DiCesare's
testimony clearly described Appellant's exit from the bank and what Appellant had
touched including the doors where the print was found. (N.T. at 39; 43; 59-60).
Additional corroboration for the areas touched by Appellant during the robbery was
provided by the bank's security video which was reviewed by Detectives Horner and
Moyer. (N.T. at 63-64; 66-69; 72-73; 156-157). Again, it is within the purview of the
jury's responsibilities to consider all evidence presented, resolve any conflicts and afford
appropriate weight to each fact adduced at trial.
14
Finally, the Appellant argues that the verdict is against the weight of the evidence
because Lt. Miller did not render a "conclusive opinion" that Appellant wrote the demand
note. This issue has already been addressed above and, for the same reasons, this
Court finds that is has no merit.
After review of the evidence, the verdict does not shock this Court's sense of
justice. of sentence should
stand.
MEMORANDUM oArs: ;tf w4-_ 1 ~ 0CJ r~
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DISTRIBUTION: ...... ""- ' n~
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Brian Hokarnp, Esq., Dauphin Co. District Attorney's Office ~ :?>o ..,.,(') rr
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James J. Karl, Esq., Dauphin Co. Public Defender's Office g.;() c; ~
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Clerk of Courts -;I:,() ...,.
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Prothonotary of the Superior Court . tl-M· /'Ml""
FILE - Judge Lewis vi/
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15