Com. v. Forbes
Decision Date | 28 January 2005 |
Citation | 867 A.2d 1268 |
Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Earl FORBES, Appellant. |
Court | Pennsylvania Superior Court |
Marc J. Frumer, Philadelphia, for appellant.
William G. Young, Asst. Dist. Atty., Philadelphia, for Com., appellee.
¶ 1 Appellant, Earl Forbes, appeals from his judgment of sentence and asks us to determine whether the verdict was against the weight of the evidence and whether the court erred in charging the jury on the elements of burglary. Appellant also asks us to determine whether the court erred in applying Pennsylvania's "two-strikes" sentencing statute. Specifically, Appellant claims 42 Pa.C.S.A. § 9714(a)(1) offends due process under the United States and Pennsylvania Constitutions. We hold the verdict was not against the weight of the evidence and Appellant's challenge to the court's jury instruction on the elements of burglary is waived. We further hold the court's application of Section 9714(a)(1) did not offend Appellant's due process rights under the United States and Pennsylvania Constitutions. Accordingly, we affirm.
¶ 2 The trial court opinion sets forth the relevant facts of this case as follows.
(Trial Court Opinion, filed February 20, 2004, at 2-4) (internal citations omitted).
¶ 3 The jury convicted Appellant of burglary,1 simple assault,2 and aggravated assault.3 Following preparation and review of a presentence investigation report, the court sentenced Appellant to a mandatory minimum sentence of 10 to 20 years' imprisonment under the second or subsequent offense provisions of 42 Pa.C.S.A. § 9714(a)(1).
¶ 4 At sentencing, Appellant argued the "two strikes" sentencing provision of Section 9714(a)(1) violated the Ex Post Facto Clause under Article 1, Section 10 of the United States Constitution, and Article 1, Section 17 of the Pennsylvania Constitution. Specifically, Appellant argued Section 9714 was unconstitutional, because his prior convictions for violent crimes, upon which the penalty enhancement would be based, occurred prior to the enactment of Section 9714.4 The court disagreed and imposed the mandatory minimum sentence required under Section 9714. Appellant filed a post-sentence motion claiming, inter alia, the verdict was against the weight of the evidence. The motion also claimed that Section 9714 is unconstitutional as follows:
(Appellant's Post-Sentence Motion at 3).
¶ 5 The court denied Appellant's motion and this timely appeal followed. Appellant timely complied with the court's directive to file a Rule 1925(b) statement. In his concise statement, Appellant alleged, inter alia, the verdict was against the weight of the evidence and "the Pennsylvania `two strikes' rule is unconstitutional" without further elaboration. (Appellant's Rule 1925(b) Statement at 2).
¶ 6 On appeal, Appellant raises three issues for our review:
¶ 7 Appellant first claims entitlement to a new trial because the victim's testimony at trial was so conflicting and contradictory, the jury's resulting verdict was against the weight of the evidence. Specifically, Appellant asserts: 1) the victim's trial testimony conflicted with his statement to police on the night of the incident; 2) the victim's trial testimony regarding Appellant's entry into the apartment was internally inconsistent; 3) the victim's trial testimony regarding the severity of his injuries was contradictory to the medical evidence; and 4) the victim's trial testimony regarding his and Appellant's use of intoxicants on the night in question conflicted with his trial testimony that he was a recovering substance abuser. Appellant argues the victim (Appellant's Brief at 15). Thus, Appellant concludes the court erred in denying his request for a new trial. We disagree.
¶ 8 Our standard of review in cases involving the denial of a new trial based on a weight of the evidence claim is subject to the following principles:
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. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (internal citations omitted); Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000). It is not the function of an appellate court to re-assess the credibility of the witnesses' testimony. Commonwealth v. Aguado, 760 A.2d 1181, 1184 (Pa.Super.2000) (en banc). Instead, we review the trial court's exercise of discretion. Commonwealth v. Riley, 811 A.2d 610, 616 (Pa.Super.2002).
¶ 9 The scope of a trial court's discretion to address a post-verdict weight claim is not whether the court would...
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