J-S50038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JUSTIN WILLIAMS MINAYA

                            Appellant                 No. 2066 MDA 2015


              Appeal from the Judgment of Sentence July 15, 2015
                In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000094-2015


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                 FILED JULY 06, 2016

        Appellant, Justin Williams Minaya, appeals from the July 15, 2015

aggregate judgment of sentence of 42 to 96 months’ imprisonment, imposed

after he was convicted of two counts of aggravated assault and one count of

disorderly conduct.1 After careful review, we affirm.2

        We summarize the relevant procedural history of this case as follows.

On February 6, 2015, the Commonwealth filed an information, charging

Appellant with the above-mentioned offenses.       “The charges resulted from

an incident between [Appellant] and Jean Dorilus (“Dorilus”) on October 29,

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), and 5503(a)(1), respectively.
2
    We note the Commonwealth elected not to file a brief in this matter.
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2014, in the Borough of Chambersburg in which [Appellant] was alleged to

have attacked the victim with a hatchet.” Trial Court Opinion, 1/14/16, at 1.

Appellant proceeded to a jury trial on June 25, 2015.            Relevant to this

appeal,    the    Commonwealth         presented   three   eyewitnesses,   Dorilus,

Richardson Dormeus, and Joseph Berdy, none of whom had met Appellant

prior to the incident on October 29, 2014.          Appellant testified in his own

defense. At the conclusion of the trial, the jury found Appellant guilty of all

charges. On July 15, 2015, the trial court sentenced Appellant to 42 to 96

months’ imprisonment on the first count of aggravated assault, a concurrent

18 to 36 month sentence for the second aggravated assault count, and a

consecutive 1 to 12 month sentence for disorderly conduct.            On July 27,

2015, Appellant filed a timely post-sentence motion.3           On September 1,

2015, the trial court entered an order granting part of Appellant’s post-

sentence motion insofar that it modified the sentence to reflect that all three

sentences were to run concurrent to each other, resulting in a new

aggregate sentence of 42 to 96 months’ imprisonment.              On October 30,

2015, the trial court entered an order denying the balance of Appellant’s



____________________________________________
3
  We observe that the tenth day fell on Saturday, July 25, 2015. When
computing a filing period, “[if] the last day of any such period shall fall on
Saturday or Sunday … such day shall be omitted from the computation.” 1
Pa.C.S.A. § 1908. Therefore, the tenth day for Appellant to file a timely
post-sentence motion was on Monday, July 27, 2015. As a result, we deem
his post-sentence motion timely filed.



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post-sentence motion.         On November 25, 2015, Appellant filed a timely

notice of appeal.4

       On appeal, Appellant raises two issues for our review.

              [1.]   Whether the trial court erred in denying
                     [Appellant]’s   post-sentence    motion    for
                     judgment of acquittal by finding that the
                     Commonwealth had established beyond a
                     reasonable doubt each of the elements of
                     aggravated assault and disorderly conduct
                     when     the   numerous      and   significant
                     discrepancies in the testimony of the
                     Commonwealth’s      witnesses    made    their
                     testimony so unreliable and inconclusive that
                     the jury could not reasonably have concluded
                     that the Commonwealth had proven all of the
                     elements of the offenses beyond a reasonable
                     doubt[?]

              [II.] Whether the trial court abused its discretion in
                    denying [Appellant]’s post-sentence motion for
                    a new trial by finding that the conviction was
                    not against the weight of the evidence when
                    that evidence – primarily eyewitness testimony
                    – was so inconsistent that the jury could not
                    reasonably    have     concluded    that     the
                    Commonwealth had proven his guilt beyond a
                    reasonable doubt[?]

Appellant’s Brief at 10.

       In his first issue, Appellant purports to challenge the sufficiency of the

Commonwealth’s evidence due to various highlighted inconsistencies in the

eyewitnesses’ testimony.           Appellant’s Brief at 22-26.   However, any


____________________________________________
4
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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challenge to discrepancies in witnesses’ testimony goes to the weight of the

evidence, not its sufficiency. Commonwealth v. DeJesus, 860 A.2d 102,

107 (Pa. 2004); Commonwealth v. Boxley, 838 A.2d 608, 612 (Pa. 2003).

As Appellant does not raise any argument that the Commonwealth’s case

was insufficient as a matter of law, his first argument on appeal does not

entitle him to relief.

      In his second issue, Appellant challenges the weight of the evidence,

on the same ground as he purportedly challenges its sufficiency. Appellant’s

Brief at 26-27. We begin by noting our well-settled standard of review. “A

claim alleging the verdict was against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Landis,

89 A.3d 694, 699 (Pa. Super. 2014) (citation omitted).           An argument that

the jury’s verdict was against the weight of the evidence concedes that the

evidence was sufficient to sustain the convictions.             Commonwealth v.

Lyons,    79 A.3d 1053,   1067   (Pa.   2013),   cert.   denied,   Lyons   v.

Pennsylvania, 134 S. Ct. 1792 (2014).                   Our Supreme Court has

admonished that “[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. Clay, 64 A.3d 1049,

1055 (Pa. 2013) (citation omitted). Instead, “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


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to deny justice.” Id. (internal quotation marks and citation omitted). “[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 ….” Id.

      As an appellate court, it “is not [our role] to consider the underlying

question of whether the verdict is against the weight of the evidence.”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted),

cert. denied, Morales v. Pennsylvania, 135 S. Ct. 1548 (2015).             An

argument that the jury’s verdict was against the weight of the evidence

remains “[o]ne of the least assailable reasons for granting … a new trial ….”

Id. (citation omitted). “Thus, only where the facts and inferences disclose a

palpable abuse of discretion will the denial of a motion for a new trial based

on the weight of the evidence be upset on appeal.”      Id. (citation omitted;

emphasis in original).

      In this case, Appellant avers the jury’s verdict was against the weight

of the evidence based on the following discrepancies.

                   (a) Dorilus – in testifying about the first
            incident before the alleged hatchet attack – said it
            was started by [Appellant] demanding money from
            Dorilus. He also said that the incident was started
            by [Appellant]’s girlfriend demanding a cigarette
            from Dorilus. After listening to Dorilus’s testimony,
            nobody – not even the jury – could figure out why
            this alleged assault occurred.

                  (b) Dorilus also testified that [Appellant] left
            the area after the first incident. He said that six or
            seven minutes later [Appellant]’s girlfriend came
            back without [Appellant]. He also said that three or
            four minutes after [Appellant] left the first time he

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          was back with the hatchet.          That is not even
          possible. [Appellant] was taken to the police station
          after the initial incident where he was charged with a
          summary offense and released to his mother. They
          then went to her house for about half an hour before
          she dropped him off near his apartment.

                 (c)   Dorilus testified that when [Appellant]
          came back after the first incident that he was scared
          because [Appellant] “looked crazy.” But Dorilus also
          testified that he did not think [Appellant] would do
          anything. If Dorilus was scared, why did he not run
          away?      He had plenty of time to get into his
          apartment. If Dorilus did not think [Appellant] was
          going to do anything, why was he scared? The
          answer to those questions is that Dorilus was not
          scared of [Appellant]. He was just trying to sell his
          story to the jury.

                (d) Dorilus testified that [Appellant] had the
          hatchet in his left hand. Berdy then testified that
          [Appellant] had the hatchet in his right hand. Which
          one was it? Nobody seems to know the answer to
          such an important question.

                 (e) Dorilus testified that there were six or
          seven guys around when [Appellant] came back.
          Dormeus did not remember how many people were
          around when [Appellant] came back. And Berdy
          testified that it was just the three of them (Berdy,
          Dormeus, and Dorilus).

                (f)  Dorilus and Berdy testified that the
          hatchet the prosecutor showed during trial was the
          one [Appellant] had on the night in question;
          however, Dormeus testified that the hatchet was not
          the same one [Appellant] possessed.

                 (g) Dormeus was not able to identify
          [Appellant] as the attacker in court. He said he
          identified [Appellant] on the night in question based
          on the clothing [Appellant] was wearing – a white t-
          shirt. However, the night in question was October


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            29, 2015; a cold night when nobody would be
            running around wearing only a t-shirt.

                   (h) Dorilus testified that he, Berdy, and
            Dormeus watched as [Appellant] walked up the block
            toward them with something in his left hand, which
            was concealed behind his back. Dormeus testified
            that all three of them watched [Appellant] approach
            from around a back hallway of the building. And
            finally Berdy, who had just come back from Sheetz,
            testified that [Appellant] was already on the scene
            arguing with Dorilus.

Appellant’s Brief at 23-25.

      The trial court supplied the following rationale in support of its

conclusion that Appellant was not entitled to a new trial based on his weight

of the evidence claim.

                  By virtue of the jury’s verdict, it appears that
            [it] did not view these minor inconsistencies to
            negatively impact the credibility of the witnesses.
            The [trial c]ourt agrees.          Dorilus’ testimony
            regarding the cause of the altercation, rather than
            being inconsistent, simply appears to detail two
            separate incidents occurring on the same day which
            may have both contributed to the attack. The jury
            was free to reconcile the testimony that [Appellant]
            and Dorilus had a disagreement over money and the
            testimony about the incident between Dorilus and
            [Appellant]’s girlfriend and conclude that both
            contributed to [Appellant]’s actions. Further, Dorilus
            was cross-examined as to inconsistenc[ies] in his
            trial testimony as compared to his preliminary
            hearing testimony.

                  The [trial c]ourt does not view the discrepancy
            in Dorilus’ testimony regarding the time between the
            incidents to be unusual. In the heat of the moment,
            a difference of 3 to 7 minutes or whether Berdy
            arrived    prior   to    or   immediately    following
            [Appellant]’s arrival is understandable, especially

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            when recalling the events that occurred months prior
            to the testimony at trial. Likewise, the witnesses’
            memory of whether the hatchet was in [Appellant]’s
            right or left hand may easily be confused, yet does
            not prevent the jury was concluding that [Appellant]
            threatened the victim with a deadly weapon.

                  Finally, [Appellant]’s arguments that if Dorilus
            was actually threatened, he should have run or that
            [Appellant] was misidentified because he would not
            have been wearing a t-shirt in late October do not
            contradict or cast doubt upon any evidence actually
            presented.

                  The [trial c]ourt finds no reason to doubt the
            weight given to the evidence by the jury. While
            minor inconsistencies exist, the basic facts remained
            constant between Dorilus, Dormeus, and Berdy and
            the investigating officers. Simply stated, the verdict
            was not so contrary to the evidence presented as to
            shock [the trial c]ourt’s sense of justice. To the
            contrary, the verdict rendered was entirely
            consistent with the evidence.

Trial Court Opinion, 1/14/16, at 11-12.

      It is axiomatic that the jury is the ultimate finder of fact at trial.

                  [T]he veracity of a particular witness is a
            question which must be answered in reliance on the
            ordinary experiences of life, common knowledge of
            the natural tendencies of human nature, and
            observations of the character and demeanor of the
            witness. As the phenomenon of lying is within the
            ordinary capacity of jurors to assess, the question of
            a witness’s credibility is reserved exclusively for the
            jury.

Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (citation omitted).

Likewise, “[t]he trier of fact while passing upon the credibility of witnesses

and the weight of the evidence produced, is free to believe all, part or none


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of the evidence.”     Commonwealth v. Feese, 79 A.3d 1101, 1122 (Pa.

Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014).

      In this case, as the trial court pointed out, the jury was free to find

Dorilus, Dormeus, and Berdy’s trial testimony credible, find Appellant’s

testimony   not     credible,   and   resolve   any   inconsistencies   in   the

Commonwealth’s favor.       See generally Commonwealth v. Horne, 89
A.3d 277, 286 (Pa. Super. 2014) (concluding the weight of the evidence

claim could not prevail as “the jury resolved the inconsistencies among the

testimonies as it saw fit and reached a verdict[]”), appeal denied, 102 A.3d
984 (Pa. 2014). The jury was presented with Dorilus, Dormeus, and Berdy’s

testimony and Appellant’s. They weighed both and ultimately concluded that

Dorilus, Dormeus, and Berdy’s testimony was credible and Appellant’s was

not credible.   As an appellate court, we will not reweigh the evidence and

substitute our judgment for that of the fact-finder.      Commonwealth v.

Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation omitted). Based on

these considerations, we conclude the trial court did not commit a palpable

abuse of discretion in deciding the jury’s verdict was not against the weight

of the evidence. See Morales, supra.

      Based on the foregoing, we conclude Appellant’s issues on appeal are

devoid of merit.    Accordingly, the trial court’s July 15, 2015 judgment of

sentence is affirmed.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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