stating that in order to preserve a challenge to the jury charge, the appellant was required to make a timely, specific objection before the jury retired
How later courts described this case
- stating that in order to preserve a challenge to the jury charge, the appellant was required to make a timely, specific objection before the jury retired
- finding evidence sufficient to establish guilt where defendant drove another man to an apartment where he retrieved a gun, then drove conspirator to the scene of the crime
- explaining failure to make timely, specific objection to jury instruction waives challenge to content of jury instruction on appeal
- evidence was sufficient to support conviction of defendant as accomplice to third-degree murder; defendant kidnapped victim along with principal and other men, defendant drove lead car to site of murder, while second car, carrying victim, followed defendant’s car, principal shot victim at murder site and left site in defendant’s car, and defendant told principal that they should not tell anyone about shooting
Written by the judges who cited it.
The opinion
CONCURRING OPINION BY
GRACI, J.
¶ 1 I join in the opinion of the majority except for its analysis of Appellant’s challenge to the weight of the evidence. While I agree with the majority that this claim must be rejected, I arrive at that conclusion via a different route.
¶ 2 As the majority suggests, “[a] new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock 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. Goodwine, 692 A.2d 233, 236 (Pa.Super.1997) (citation omitted). Stated another way, this Court has explained that “the evidence must be ‘so tenuous, vague and uncertain that, the verdict shocks the conscience of the court.” ’ Commonwealth v. La, 433 Pa.Super. 432 , 640 A.2d 1336, 1351 (1994), appeal denied, 540 Pa. 597 , 655 A.2d 986 (1994) (citation omitted). Our Supreme Court has clearly said that it is the trial court’s sense of justice that must be shocked before a new trial may be granted on a claim that the verdict is against the weight of the evidence. Commonwealth v. Brown, 538 Pa. 410 , 648 A.2d 1177, 1191 (1994). It is irrelevant that our sense of justice may be shocked. That is the import of the Supreme Court’s directive that “[a]ppellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence.” Commonwealth v. Widmer, 560 Pa. 308 , 744 A.2d 745, 753 (2000) (citing Brown, 648 A.2d at 1189 ). 5
*555 ¶ 3 Accordingly, I would review the record in this case only for the limited purpose of determining whether the trial court abused its discretion in denying Appellant relief on his weight claim. To undertake an independent review of the evidence for the purpose of determining whether our sense of justice is shocked by the verdict below is beyond this Court’s narrowly circumscribed scope and standard of review.
¶ 4 In its Rule 1925(a) opinion, the trial court, in rejecting Appellant’s weight challenges, stated unequivocally that
there was no doubt that the victim, Arthur Irick, was removed from the area of safety by these four co-conspirators to a deserted area of the City where he could be killed. We believe the evidence at trial showed that Mr. Gooding picked the place where Mr. Irick should be killed as he drove the lead vehicle to the deserted parking lot where Mr. Irick was shot. We believe the evidence at trial showed that Mr. Gooding did this to facilitate the killing and therefore met the requirements of third degree murder as well as the Hdnap[p]ing statute.
1925(a) Opinion, 1/8/02, at 7-8. During Appellant’s sentencing hearing, the trial court also set forth a lengthy and detailed recitation of the evidence pertaining to the viciousness of the crime and the fact that Appellant was a very active participant in the ruthless execution of the victim. See N.T. Sentence, 10/24/01, at 9-11. This is reflected, too, in the trial court’s opinion. 1925(a) Opinion, 1/8/02, at 4-7. Clearly, the trial court’s conscience or sense of justice was not shocked so as to require a new trial. Although an express statement to that effect in the trial court’s 1925(a) opinion or the order denying the post-sentence motion would have been helpful to our review, the trial court committed no abuse of discretion and properly denied Appellant relief on his weight of the evidence challenge.
¶ 5 Accordingly, I agree that the judgment of sentence should be affirmed.
. The majority cites Commonwealth v. Begley, 566 Pa. 239 , 780 A.2d 605 (2001) for the applicable standard of review. Although the Begley court endeavored to review the record in order to determine whether the jury’s verdict “was so contrary to the evidence as to *555 shock one’s sense of justice,” id. at 620, I believe the Court did so because Begley was a capital case on direct appeal to the Supreme Court pursuant to 42 Pa.C.S.A. § 9711(h). See Commonwealth v. Nelson, 514 Pa. 262 , 523 A.2d 728 , 733 n. 3 (1987) ("It is a rule of this Commonwealth that an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the ‘cold record.’ However, where the penalty of death is imposed we will consider such a complaint.”) (citations omitted).