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408 Pa. Super. 435

597 A.2d 111

Commonwealth v. Murray

Superior Court of Pennsylvania

Decided September 13, 1991

Superior Court of Pennsylvania · decided 1991-09-13

Key passage — most relied on by later courts

“only where the verdict is so contrary to the evidence as to shock one’s sense of justice [and not] where the evidence is conflicting [or] where the trial judge would have reached a different conclusion on the same facts. We have held that it is the duty of the trial court to control the amount of the verdict; it is in possession of all the facts as well as the atmosphere of the case, which will enable it to do more evenhanded justice between the parties than can an appellate court. Thus, a jury verdict is set aside for inadequacy when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Hence, a reversal on grounds of inadequacy of the verdict is appropriate only where the injustice of the verdict [stands] forth like a beacon.”

quoted by 2 later decisions, including Commonwealth v. Brown, 2005 Pa. Super. 230 - Womack v. Crowley

“The decisions in Commonwealth v. Wallace, supra, and Commonwealth v. Nelson, supra, did not refer to nor purport to overrule the line of cases in Pennsylvania in which appellate courts have reviewed the exercise of the lower court’s discretion in weighing the evidence. An appellate court has the duty to review the trial court’s denial of a defendant’s motion for a new trial on the grounds that the verdict was against the weight of the evidence. The purpose of that review is to determine whether the trial court abused its discretion and not to substitute this Court’s judgment for that of the trial court.”

quoted by 1 later decision, including Commonwealth v. Brown

Relies on Commonwealth v. Farquharson · Thompson v. City of Philadelphia · Commonwealth v. Nelson

Good law ✅— No negative treatment on recordhow we know

Decided 1991-09-13

How this case has been cited

Cited by 84 later decisions — most recently July 2013 · most notably Commonwealth v. Brown (1994), 413 Pa. Super. 498 - Commonwealth v. Rodgers (1992)

80 state decisions

700199120002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

OPINION PER CURIAM:

¶1The issue in this case is whether we may review the decision of a trial court which has denied a motion for a new trial in a criminal case based on a challenge to the weight of the evidence.1

¶2We have traditionally reviewed the exercise of discretion by a trial court in matters involving challenges to the weight of the evidence. We stated in Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984):

Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is ad*437dressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion____ The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

¶3See also, Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984).2

¶4As recently as Commonwealth v. Purcell, 403 Pa.Super. 342, 589 A.2d 217 (1991) we held that our role in reviewing the weight of the evidence is limited and the determination whether to grant a new trial on the grounds that the verdict is against the weight of the evidence rests within the discretion of the trial court whose decision will not be disturbed in the absence of an abuse of discretion. We are cognizant that in many instances challenges to the weight of the evidence are in reality, attacks on the sufficiency of the evidence.3 Nevertheless, there is a clear distinction between the two.

¶5Until recent years there appeared to have been no question as to our authority to review determinations by the trial court concerning weight of the evidence. However, in Commonwealth v. Nelson, 514 Pa. 262, 271, n. 3, 523 A.2d 728, 733, n. 3 (1987) the Supreme Court stated in a footnote:

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.”

¶6*438This statement was reinforced by the Supreme Court in Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989) wherein the court stated: “A challenge to the weight of the evidence is not appealable,” citing Commonwealth v. Nelson, supra. Q

¶7In Commonwealth v. Eddowes, 397 Pa.Super. 551, 580 A.2d 769 (1990), opinion by Olszewski, J., we held that a ruling on a challenge to the weight of the evidence is subject to appellate review, notwithstanding the Supreme Court’s statements in Commonwealth v. Nelson, supra,and Commonwealth v. Wallace, supra.4

¶8In this case, the appellant, Shawn C. Murray, was found guilty of homicide by motor vehicle while under the influence of alcohol. On March 11, 1988 appellant and three companions embarked on an evening of “bar hopping.” One member of the group purchased a prescription drug known as Zanax and a case of beer. The group visited several bars and at each, the appellant was not served, as he was under age. Nevertheless, he consumed at least three sixteen-ounce cans of beer and several Zanax pills.

¶9The appellant was the driver of the vehicle in which the group travelled during the evening. Near the intersection of Route 75 and Fannettsburg Road, the vehicle left the roadway which was paved and 19V2 feet wide, crossed a 2 *439foot wide berm and went into a ditch, ultimately coming to rest against a concrete abutment.

¶10One of the passengers, Timothy Smith, was wedged in the front of the vehicle and died as a result of “blunt trauma” to his skull. The appellant’s blood alcohol content as revealed by tests taken at Hershey Medical Center some three hours after the accident, was found to be .14 per cent.

¶11Notwithstanding the dicta of the Supreme Court in Commonwealth v. Nelson, supra,and Commonwealth v. Wallace, supra,we conclude that we may review the trial court’s exercise of its discretion in denying a motion for a new trial based on a challenge to the weight of the evidence. The law in this Commonwealth has long been that a new trial may be ordered “on the ground that the verdict is against the weight of the evidence, 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.” 10 Standard Pennsylvania Practice, New Trial, § 62:59. See also, Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986); and Commonwealth v. Datesman, 343 Pa.Super. 176, 494 A.2d 413 (1985). As Justice McDermott stated in Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985), the Supreme Court “has repeatedly emphasized that it is not only a trial court’s inherent fundamental and salutary power, but its duty to grant a new trial when it believes the verdict was against the weight of the evidence and resulted in a miscarriage of justice.”

¶12We stated in Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984): “a motion for new trial on grounds that the verdict [was] contrary to the weight of the evidence concedes that there [was] sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict [was] against the weight of the evidence.” Whether a new trial should be granted on such grounds is addressed to the sound discretion of the trial court. *440Thompson v. City of Philadelphia, supra; Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Ruffin, 317 Pa.Super. 126, 463 A.2d 1117 (1983).

¶13The exercise of discretion by the trial judge in denying a motion for a new trial based on a challenge to the weight of the evidence is not unfettered. The need for appellate review was acknowledged by the Supreme Court in Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991). In holding that a trial court could grant a new trial “in the interest of justice,” the. Court, per Nix, C.J., observed:

[wjhile the scope of a trial court’s discretionary powers to deal with the factual circumstances it confronts is broad, it is not unlimited. It necessarily follows that the requirement that appellate courts defer to that exercise of discretion is not without limitation either. The propriety of such an exercise of discretion may be assessed by the appellate process when it is apparent there was an abuse of that discretion.

¶14527 Pa. at-, 590 A.2d at 1244.

¶15The decisions in Commonwealth v. Wallace, supra,and Commonwealth v. Nelson, supra,did not refer to nor purport to overrule the line of cases in Pennsylvania in which appellate courts have reviewed the exercise of the lower court’s discretion in weighing the evidence. An appellate court has the duty to review the trial court’s denial of a defendant’s motion for a new trial on the grounds that the verdict was against the weight of the evidence. The purpose of that review is to determine whether the trial court abused its discretion and not to substitute this Court’s judgment for that of the trial court. Thompson v. City of Philadelphia, supra; Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); and Commonwealth v. Taylor, supra.

¶16In reviewing the trial court’s decision concerning the weight of the evidence, an appellate court is not passing on the credibility of witnesses. This is a function that is solely within the province of the finder of fact which is free to believe all, part of none of the evidence. Commonwealth v. *441Mayfield, 401 Pa.Super. 560, 585 A.2d 1069 (1991). In Commonwealth v. Coyle, 190 Pa.Super. 509, 154 A.2d 412 (1959), we found that the trial court abused its discretion in not finding that the verdict was against the weight of the evidence. In reaching this conclusion we did not reevaluate the credibility of witnesses. However, in examining the record we concluded that the jury wrongly ignored evidence of a blood grouping test which showed that the appellant could not have been the father of the prosecutrix’ child. This testimony was apparently disregarded by the jury even though the pathologist who offered it did not have his integrity or professional qualifications questioned and there was nothing in the evidence to indicate any error in the laboratory testing. If we had not reviewed the exercise of the trial court’s discretion, the appellant would have remained wrongly convicted. The Supreme Court pointed out in Commonwealth v. Powell, supra,527 Pa. at-, 590 A.2d at 1244: “[W]hile the scope of a trial court’s discretionary powers to deal with the factual circumstances it confronts is broad,it is not unlimited.”

¶17We conclude that we have the right and duty to review the trial court’s exercise of its discretion in refusing to grant a new trial on the basis that the verdict was against the weight of the evidence. Nevertheless, we find that appellant’s contention is without merit. The appellant had been drinking and using drugs shortly before the accident which resulted in the death of Timothy Smith. The appellant’s blood alcohol level was higher than the statutory requirements to establish legal intoxication. He was the operator of the vehicle in question, and a passenger testified that shortly before the vehicle went off the road and into the ditch before hitting a concrete abutment, “he was driving back and forth over the yellow line [and] if there would have been a car coming [in the opposite direction] we would have hit him right then.”

¶18The trial court did not act capriciously in determining that the verdict was not against the weight of the evidence and the judgment of sentence must be affirmed.

¶19Judgment of sentence affirmed.

*442OLSZEWSKI, J., files concurring and dissenting opinion.POPOVICH, J., files a concurring and dissenting opinion in which CIRILLO and HUDOCK, JJ. join.

¶20. The appellant has raised four other issues on appeal which have been properly adjudicated by the court below in its opinion and supplemental opinion by Keller, PJ. We adopt those opinions in disposing of appellant’s issues one through four.

¶21. The Pennsylvania Supreme Court has long held that a new trial may be granted on the grounds that the verdict is against the weight of the evidence. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). See also, Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983); Commonwealth v. McFadden, 402 Pa.Super. 517, n. 2, 587 A.2d 740, n. 2 (1991).

¶22. In the case sub judice, the court below found that the challenges to the weight of the evidence were in effect challenges to the sufficiency of the evidence.

¶23. In referring to Nelsonand Wallace, supra,we stated in Commonwealth v. Eddowes, 397 Pa.Super. at 560-561, 580 A.2d at 774:

Nevertheless, these cases do not expressly preclude us from addressing a weight of the evidence claim. Furthermore, neither of these cases involved a direct challenge to the weight of the evidence; therefore, this pronouncement is dictum rather than binding authority. This Court has traditionally reviewed weight of the evidence claims; accordingly, we will continue to address the merits of such claims until directed to the contrary by our Supreme Court. Commonwealth v. Jenkins, 396 Pa.Super. 395, 578 A.2d 960 (1990)

¶24also concluded that Nelsonand Wallacedo not prohibit us from considering weight of the evidence arguments. See also, Orsini v. State Farm Insurance Co., 399 Pa.Super. 144 n. 2, 581 A.2d 1378 n. 2 (1990), wherein we stated: "However, we do not believe that the court intended, by the passing statements made in these two cases [Nelson and Wallace], to abrogate all review for weight of the evidence.”

OLSZEWSKI, Justice,

¶25concurring and dissenting.

¶26I concur in the result reached by the majority in this case. I must dissent from the conclusion that challenges to the weight of the evidence are reviewable by appellate courts.

¶27It is true that as recently as last year, I was of the opinion that the restrictions announced by our Supreme Court in Wallace and Nelson were dicta, and so, nonbinding on this Court. See, Commonwealth v. Eddowes, 397 Pa.Super. 551, 559-61, 580 A.2d 769, 774 (1990). It is still my belief that a direct challenge to the weight of the evidence was not presented to our Supreme Court in either Wallace or Nelson. Nonetheless, I am now persuaded that the view expressed in those opinions is a proper statement of the law.

¶28The majority acknowledges that a true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict. Majority opinion at 436-437, citing Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). Once that point is recognized, it is beyond dispute that a true motion for a new trial on grounds that the verdict is contrary to the weight of the evidence challenges the credibility determination made by the fact-finder. If one admits that sufficient evidence exists, the question becomes which evidence is to be believed. It is also beyond dispute that the fact-finder is free to believe all, part, or none of the evidence presented. Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986); Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977); Commonwealth v. Sanders, 390 Pa. 379, 134 A.2d 890 (1957).

¶29The majority’s citation of Commonwealth v. Coyle, 190 Pa.Super. 509, 154 A.2d 412 (1959), aptly illustrates the irreconcilable conflict that appellate review of challenges to the weight of the evidence creates with the traditional *443function of the fact-finder. After stating that the fact-finder is free to believe all, part or none of the evidence, the majority cites with approval a decision granting a new trial because the jury apparently disregarded expert testimony. Why is it apparent that the testimony was disregarded? Because the jury did not believe it even though it was unimpeached. The law is clear, however, that a jury may believe all, part or none of the evidence presented even where that evidence is uncorroborated or uncontradicted. Commonwealth ex rel. Green v. Rundle, 413 Pa. 401, 405, 196 A.2d 861, 864 (1964). According to the majority, a fact-finder is free to believe all, part or none of the uncontradicted evidence; however, an appellate court, after reviewing a cold record, may grant a new trial if it determines that the jury should have believed the evidence presented. Thus, the fact-finder is free to reach the same result the appellate court would have reached if presented with the same evidence. Despite protestations to the contrary, the appellate court becomes the final finder of fact in these cases.

¶30Such a challenge to the credibility determinations may properly be addressed to the trial court “who has also observed the witnesses as they testify.” Commonwealth v. Farquharson, 467 Pa. 50, 59, 354 A.2d 545, 550 (1976). The trial court may exercise its sound discretion and grant a new trial where the verdict shocks the court’s conscience. Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). Appellate courts, however, having had no opportunity to observe the evidence as it was presented, are uniquely unsuited to question the credibility determinations of the fact-finder. Farquharson, supra.A cold record produces thin ice on which to support a weight of the evidence claim.1

¶31*444Such pure credibility challenges must be distinguished from weight of the evidence claims which contend that the verdict is a product of speculation or conjecture. Those claims, however, are sufficiency of the evidence arguments miscast as weight of the evidence claims. In my view, if a reliable verdict is impossible to render, then sufficient evidence has not been presented. These types of claims remain subject to appellate review. Farquharson, supra.

¶32Having examined the arguments on both sides of this question, I must “acknowledge the corn”2 and so, I respectfully dissent.

¶33. The majority also cites Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991) for the proposition that exercises of the trial court’s discretion when granting a new trial are reviewable by appellate courts. I believe Powellis clearly distinguishable. The trial court in Powell, sua sponte, granted a new trial in the interests of justice because it determined that the defendant had been coerced by the court to waive his right to a jury trial. A challenge to the weight of the evidence was not presented in Powell. Thus, though Powellstands *444for the proposition that the exercise of the trial court’s discretion in sua sponte granting a new trial in the interest of justice is reviewable, it does not follow that our Supreme Court meant to contradict its prior statements in Nelson and Wallace that the trial court’s exercise of discretion in disposing of a challenge to the weight of the evidence is not reviewable.

¶34. Congressman Charles A. Wickliffe of Kentucky, as quoted in: Funk, A Hog On Ice & Other Curious Expressions, Harper & Row, 1985.

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