Com. v. Widmer

Decision Date20 January 2000
Citation744 A.2d 745,560 Pa. 308
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Barry WIDMER, Jr., Appellant.
CourtPennsylvania Supreme Court

Barry Widmer, Jr., pro se.

Patrick L. Meehan, Dist. Atty., William R. Toal, III, Office of the District Attorney, for Com.



CAPPY, Justice.

This appeal presents the question of whether the Superior Court erred in reversing the trial court's decision to grant a new trial on the basis that the verdict was against the weight of the evidence. Appellant challenges both the scope and standard of review utilized by the Superior Court. For the reasons that follow, we affirm the decision of the Superior Court.

A jury convicted appellant of rape and indecent assault on June 22, 1994. Appellant chose not to file post-trial motions and proceeded to sentencing on July 22, 1994. Following the imposition of sentence, an appeal was taken to the Superior Court in accordance with Pa.R.Crim.P.1410. In that appeal, appellant raised the claim that his conviction was against the weight of the evidence. Citing Pa.R.Crim.P. 1410(B)(1)(c) the Superior Court determined that the weight of the evidence claim had been waived because appellant had failed to provide the trial court with an opportunity to rule on the claim. Commonwealth v. Widmer, 446 Pa.Super. 408, 667 A.2d 215 (1995). However, in its opinion filed pursuant to Pa.R.A.P.1925, the trial court stated that had the matter of weight of the evidence been raised in post-trial motions, a new trial would have been granted.

Our Court granted allocatur to address the effect of Pa.R.Crim.P.1410 (B)(1)(c) on appellant's weight of the evidence claim. In appellant's first appeal to this court we agreed with the Superior Court that because of its unique nature a weight claim must first be presented to the trial court. Nevertheless, we found the circumstances in appellant's case required consideration of the claim. Accordingly, the matter was remanded to the trial court to permit appellant to file a motion for new trial nunc pro tunc, challenging the weight of the evidence. Commonwealth v. Widmer, 547 Pa. 137, 689 A.2d 211 (1997).

Upon remand, a motion challenging the weight of the evidence was brought before the trial court. After a hearing on the motion, the trial court granted a new trial. The Superior Court reversed finding that the trial court had abused its discretion in granting the motion for a new trial on the weight of the evidence.1 This Court again granted the appellant's petition for allowance of appeal. The current appeal charges error by the Superior Court in reversing the trial court's decision to grant appellant's motion for a new trial on the grounds that the verdict was against the weight of the evidence.

A recitation of the facts is a necessary predicate to our resolution of this matter. As did the Superior Court, we adopt the following summarization of the facts:

On the evening of July 29, 1993, Widmer and two friends, Rob Mullin and Edward Brown, went to the home of Widmer's uncle, Charles Cress, in Drexel Hill, Upper Darby Township, for the purpose of celebrating Widmer's twenty-first birthday. Among those present at Cress's home were David McAndrew, who also resided there, and McAndrew's girlfriend, Joanna McCusker. After about an hour of drinking, Widmer, Cress, Mullin, Brown and McAndrew went out to a bar to continue their celebration. They remained at the bar for approximately three to three and one-half hours and, then, the group returned to the home of Cress and McAndrew. Widmer went upstairs to use the bathroom, and, after he had been gone for what seemed to be a long time, McAndrew went upstairs to check his whereabouts. Upon doing so, McAndrew found Widmer in McAndrew's bedroom engaged in sexual intercourse with McCusker. Widmer then left the house and McAndrew retrieved a handgun and followed him. Outside McAndrew threatened to kill Widmer, who, after pleading with McAndrew not to shoot him, left the scene with Mullin and Brown. At trial, Widmer testified that he and McCusker had engaged in consensual intercourse. McCusker, however, said that she had been sleeping and had awakened to find Widmer on top of her with his penis in her vagina. According to McAndrew, he entered his bedroom and found Widmer on top of McCusker, with McCusker hitting Widmer on the chest. Widmer had then rolled off McCusker onto the floor. He looked up at McAndrew and appeared to be scared. After Widmer had fled the room, McAndrew said that McCusker had been shaking and crying.

Widmer, 667 A.2d at 218-19.

The criminal conduct charged against appellant was rape of an unconscious person. 18 Pa.C.S. § 3121(3).2 The issue at trial was consent. Ms. McCusker testified that she awakened to find appellant on top of her with his penis in her vagina. Appellant testified that the act of intercourse was consensual and that McCusker was a willing and active participant. The jury rendered a verdict against appellant.

The trial court set aside the verdict finding the weight of the evidence was clearly in the appellant's favor. In its opinion, the trial court focused on the credibility of Ms. McCusker in contrast to the credibility of appellant. The trial court found that the testimony of Ms. McCusker "was rife with uncertainty and doubt." The trial court found that Ms. McCusker failed to "testify with any modicum of conviction." (Opinion of the trial court 10/22/97 at p.8.). The trial court went on to note that Ms. McCusker offered no testimony that would indicate that physical force or restraint had been used or that she in any way opposed the sexual encounter physically or verbally. According to the trial court, "her testimony reveals an abundance of doubt and uncertainty regarding her own conduct and the events of that night." (Opinion of the trial court 10/22/97 at p.9). In contrast, the trial court found appellant's testimony to be succinct and unrebutted by the testimony of Ms. McCusker. Appellant gave a detailed description of how he entered the bedroom and spoke to Ms. McCusker. According to appellant's testimony, Ms. McCusker, by her actions, invited and accepted his physical presence and indicated her consent to the sexual encounter. Rather than oppose appellant's advances, Ms. McCusker aided his effort at intercourse by taking his penis in her hand and directing it into her vagina.

The trial court concluded that the contrast between Ms. McCusker's uncertainty as to what occurred that evening and appellant's concise portrayal of their encounter was so startling that the verdict shocked its sense of justice, thus, compelling the grant of a new trial.

The Superior Court reviewed the trial court's stated reasons for the grant of a new trial and failed to find adequate support for those reasons in the record. The Superior Court concluded that the trial court's assessment of the weight to be afforded the testimony of Ms. McCusker displayed a clear disregard for the theory of the case. To find Ms. McCusker not credible because she could not recall what appellant said or did while she was sleeping was an abuse of discretion and a clear invasion of the exclusive domain of the jury.

Appellant challenges both the scope and standard of review applied by the Superior Court in reaching its conclusion that the trial court abused its discretion in awarding a new trial. The questions presented require this court to review the decision of the intermediate appellate court to determine if the correct legal standard was applied in an assessment of the trial court's exercise of discretion. Considering the nature of the claims presented for review before this court, our standard of review is whether the Superior Court committed an error of law or an abuse of discretion. Morrison v. Department of Public Welfare, 538 Pa. 122, 646 A.2d 565 (1994).

Appellant first asserts that the Superior Court utilized an incorrect scope of review. Scope of review refers to the confines within which an appellate court must conduct its examination of a trial court decision. Coker v. S.M. Flickinger Company, Inc., 533 Pa. 441, 625 A.2d 1181, 1186 (1993). In other words, it refers to what the appellate court is permitted to examine. Morrison, 646 A.2d at 570. The scope of review of a decision to grant a new trial is dictated by whether the trial court has set forth specific reasons for its decision or leaves open the possibility that reasons in addition to those stated support the award of a new trial. Id. Where the trial court leaves open the possibility that reasons exist to support its decision in addition to those actually stated, an appellate court will undertake a broad review of the entire record. However, where the trial court indicates that the reasons stated are the only basis for which it ordered a new trial, an appellate court must confine the scope of its review to the stated reasons. Id. This is not to say that the reviewing court looks only to the stated reasons in a vacuum. It is the obligation of the reviewing court to look at the entire record to determine if the trial court's stated reasons are supported therein. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669, 673 (1985).

Appellant asserts the Superior Court erred in limiting its scope of review to an examination of the finite reasons set forth in the trial court opinion granting a new trial. Appellant argues that where, as here, the trial court grants a new trial based upon its view that "the verdict shocked his sense of justice" then a broad scope of review applies. Appellant argues that the use of the emphasized phrase implies that more than the stated reasons influenced the trial court decision to grant a new trial. Appellant's assertion is not convincing. The trial court in its opinion clearly enunciated the specific points that brought...

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