Com. v. Kloch, D. (memorandum)

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J. A14003/14 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. DONALD MICHAEL KLOCH, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1469 MDA 2013 Appeal from the Judgment of Sentence, May 30, 2013, in the Court of Common Pleas of York County Criminal Division at No. CP-67-CR-0006893-2012 BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2014 Appellant appeals the judgment of sentence entered May 30, 2013. Finding no error, we affirm. On February 11, 2013, a jury found appellant guilty of one count of attempted homicide, two counts of aggravated assault, three counts of terroristic threats, one count of false imprisonment, one count of unlawful restraint, three counts of simple assault, three counts of recklessly endangering another person, and one count of attempted involuntary 1 * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. ยงยง 901(a), 2702(a)(4), 2706(a)(1), 2903(a), 2902(a)(1), 2701(a)(3), 2705, and 901(a), respectively. J. A14003/14 nspired on May 7, 2012, in Peach Bottom Township. At that time, the victim, Aerial Auble, was exchanging text messages with one Kacey Simon, Auble informed appellant that Simon could get them a good deal on Percocet. Appellant gave Simon $800 and transported Auble and Simon to a house in Maryland. 2 Simon went into the house, but never returned, and no one answered the door to the house when appellant knocked. Simon initially had responded to text messages from Auble, but eventually stopped returning her messages. his bedroom. Appellant announce retrieved a double-barreled shotgun and loaded it. Auble attempted to grab her purse and leave, but appellant prevented her. Appellant told Auble that she was responsible for him losing his money and that she needed to fix it. for his money. Appellant grabbed Auble by the hair and the shotgun the bed and, while holding her down, reloaded the shotgun. Appellant first 2 The record variously identifies the amount of money as $800 and $900. -2- J. A14003/14 o ring. Appellant grabbed the phone and hit Auble in the head with it which had the the two of them, along with one Benjamin Pohl entered the house and broke down the bedroom door. Appellant threatened them with the shotgun, and a physical struggle for the gun ensued among discharging into the bedroom wall. Appellant eventually lost control of the gun and Auble, her father, and Pohl were able to make their escape. Appellant followed them out onto his front porch threatening that if he ever saw any of them again, he would kill them. On May 30, 2013, appellant was sentenced to an aggregate term of attempted IDSI. Appellant filed a post-sentence motion in which he raised, without specification as to any details, boilerplate claims as to the weight and sufficiency of the evidence. No supporting brief was filed. On July 17, 2013, a hearing was held on these claims. The entire sum and substance of Next case, Your Honor, is the Commonwealth versus Donald Kloch, docketed at 6893 of 2012. This is the date and time scheduled for a hearing on -sentence motion. -3- J. A14003/14 Defendant Attorney Holt. is present and represented by THE COURT: All right. Good morning, counselor. ATTORNEY HOLT: Good morning. THE COURT: What would you like me to know? ATTORNEY HOLT: Well, I filed the post-trial motions. You were present during the entire trial. You heard the testimony. THE COURT: All right. the testimony was and whether it was the way [sic] of the verdict. My biggest argument, although they have all been raised, has to deal with the IDSI. THE COURT: Right. ATTORNEY HOLT: We had discussions even off the record about the sex charges and -THE COURT: Right, understood. All right. I understand defense has to file the jury verdict where there was adequate evidence to support the jury verdict. On the -- on the offenses where Mr. Kloch was convicted, that had to do with the wrestling with the weapon and the three people being in the room and everything that derived from that, there were three eyewitnesses. The jury had sufficient evidence from those witnesses to support the findings of guilt. In regard to the IDSI, it was basically a swearing contest. We had the alleged victim -4- J. A14003/14 indicating one set of facts, Mr. Kloch stating another set of facts. finder to decide who to believe and who not to believe, and they had believed the young lady, so there was sufficient evidence to support that finding of guilt as well. The jury is entitled to choose to believe one witnesses would seem to even have a similar level of credibility from the stand, and the jury chose to believe the young lady. So, there is sufficient evidence to support the a factual dispute to accordingly, motion for new trial is denied. Notes of testimony, 7/17/13 at 1-2. On appeal, appellant raises the sole issue that the verdict was against the weight of the evidence. We begin with our standard of review: A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). 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. Widmer, 560 Pa. at 319-20, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice. Id. at 320, 744 A.2d at 752 (citation omitted). It has often been stated that verdict is so contrary to the evidence as to shock imperative so that right may be given another -5- J. A14003/14 Brown, 538 Pa. at 435, 648 A.2d at 1189. presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court: Appellate 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. Brown, 648 A.2d at 1189. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial against the weight of the evidence. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa.1976). One of the least assailable reasons for granting conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice. Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added). Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013). Appellant raises two arguments in asserting that the verdict was against the weight of the evidence. First, appellant argues that if you compare the telephone records with the trial testimony of Auble, it proves that her version of events, particularly in regard to the attempted IDSI, was ements to -6- J. A14003/14 police and to a hospital nurse so contradicted her trial testimony that it rendered said testimony wholly unreliable. We begin by noting that appellant raised neither of these arguments before the trial court either in the post-sentence motion, in a supporting brief, or at the hearing on the motion. Appellant is improperly raising new based upon these theories is, therefore, waived. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. We also remind appellant that this court does not weigh or re-weigh weighing of the evidence for an abuse of discretion. Where appellant fails to raise his particular theories before the trial court and the trial court does not, therefore, review those theories and weigh the evidence according to them, there is nothing for this court to review. Instantly, the only weight issue presented to the trial court pertained to the attempted IDSI conviction. The trial court responded that this was find the victim more credible. We see no abuse of discretion in that review. There is no error here. Judgment of sentence affirmed. -7- J. A14003/14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/8/2014 -8-

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