J-S32041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN SCOTT JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 607 WDA 2021

Appeal from the Judgment of Sentence Entered April 15, 2021

In the Court of Common Pleas of McKean County Criminal Division at 

No(s): CP-42-CR-0000116-2020

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: NOVEMBER 19, 2021

Brian Scott Johnson (“Johnson”) appeals from the judgment of sentence 

imposed following his conviction of criminal mischief.1 We affirm in part, and 

remand with instructions.

In January 2020, Johnson was an inmate at the McKean County Jail. 

Johnson did not share his cell with another inmate, and his cell was equipped 

with a sprinkler head. On January 18, 2020, surveillance video in the common 

areas of the jail showed Johnson throwing a bin or tote out of his cell. Shortly 

after, water began running out of Johnson’s cell. Jail officials subsequently 

replaced the sprinkler unit inside Johnson’s cell. The next day, January 19, 

2020, surveillance video showed Johnson walk inside of his cell, and then walk 

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1 18 Pa.C.S.A. § 3304(a)(5).
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out of the cell shaking his hands. Shortly thereafter, water again began 

running from inside of Johnson’s cell.

Johnson was charged with, inter alia, the above-referenced offense. At 

Johnson’s non-jury trial, the warden of the McKean County Jail testified that 

Johnson was the only individual inside of his cell on the dates that the sprinkler 

turned on. N.T., 3/15/21, at 6-10. Pennsylvania State Trooper Steve Ross 

(“Trooper Ross”) testified that Johnson had admitted to damaging the 

sprinkler on January 18, but not on January 19. Id. at 12-19. A McKean 

County Jail maintenance supervisor testified that he had replaced the sprinkler 

on both occasions, and that accidental sprinkler activations were not a 

common problem. Id. at 25-31. Finally, Johnson testified that he did not 

damage the sprinkler on January 18, and that he threw his tote out of his cell 

after the sprinkler had activated, so that his belongings did not get wet. Id.

at 45. Johnson also testified that he did throw his tote on January 19, but 

that he threw it in the opposite direction of the sprinkler and that the thrown 

tote was not the cause of the sprinkler’s activation. Id. at 48-49, 51. The 

trial court also reviewed video evidence from both dates. At the conclusion of 

trial, the court convicted Johnson of summary criminal mischief. On April 15, 

2021, the trial court sentenced Johnson to four to eight days in prison, with 

credit for time served, plus eighty-two days of probation. Johnson filed a 

timely post-sentence Motion, which the trial court denied.
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Johnson filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P. 

1925(b) Concise Statement of matters complained of on appeal.

Johnson raises the following questions for our review:

(1) Whether the evidence admitted at trial and all reasonable 

inferences drawn therefrom, when viewed in the light most 

favorable to the Commonwealth as the verdict winner, are 

sufficient to support all of the elements of the offense at Count 3

[(criminal mischief)?]

(2) Whether the trial court abused its discretion upon review of 

the record when reviewing the weight of the evidence for Count 3

[(criminal mischief)?]

Brief for Appellant at 5.

In his first issue, Johnson argues that the evidence was insufficient to 

convict him of criminal mischief. Id. at 10-11. Specifically, Johnson claims 

that there was no evidence that he intended to damage the sprinkler in his 

cell, and that he threw his tote only after the sprinkler had already turned on,

in order to prevent his belongings from getting wet. Id. at 10. Additionally, 

Johnson asserts that other cells in the jail had issues with sprinklers 

unexpectedly turning on, and that the location of the sprinkler on the wall 

would have made it difficult for Johnson to damage it. Id. at 10-11.

When considering a challenge to the sufficiency of the evidence, we 

determine

whether[,] viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 
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the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder[,] unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the finder of fact[,] while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, or part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation 

omitted).

The Pennsylvania Crimes Code defines criminal mischief, in relevant 

part, as when an individual “intentionally damages real or personal property 

of another[.]” 18 Pa.C.S.A. § 3304(a)(5).

In its Opinion, the trial court addressed Johnson’s sufficiency claim as 

follows:

[T]here was evidence presented that [Johnson] was the only 

individual in his jail cell on both January 18 and 19[, 2020,] when 

the sprinkler in the cell was activated. There is also video 

evidence from both dates that [Johnson] walked into his cell, 

walked back out of his cell, and then water immediately started 

flowing out from the cell. The likelihood that on two separate 

occasions [Johnson] walked into his cell and the sprinkler 

malfunctioned on its own is very low. The video footage itself is 

very strong circumstantial evidence that [Johnson] did[,] in fact[,]

activate the sprinklers, and the additional testimony further 

strengthens the evidence against [Johnson]. There was evidence 

presented through the testimony of Trooper Ross that [Johnson] 

admitted to throwing his tote and activating the sprinkler on at 

least one occasion, which th[e c]ourt found credible. The McKean 

County Jail Maintenance Supervisor testified that accidental 

sprinkler activations were not a common problem. [Johnson] also 

admitted that it was possible he might have accidentally hit the 
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sprinkler head on one occasion. Again, we find that he 

acknowledgement by [Johnson] that his actions caused the 

discharge of water to be accurate, but, we find the assertion that 

it was an accident involving a thrown tote to be incredible. The 

evidence[,] when viewed together and in the light most favorable 

to the Commonwealth, as well as giving the Commonwealth all 

reasonable inferences to be drawn from the evidence, clearly 

support this [c]ourt’s verdict that there was sufficient evidence to 

prove that [Johnson] intentionally damaged the sprinkler and was 

guilty beyond a reasonable doubt.

Trial Court Opinion, 7/12/21, at 6-7.

Our review of the record confirms the sound judgment of the trial court. 

The Commonwealth proved beyond a reasonable doubt that Johnson 

intentionally threw his tote at the sprinkler, which was the property of the 

McKean County Jail, and that throwing the tote at the sprinkler resulted in 

damages. Accordingly, we can grant Johnson no relief on this claim. See 

Melvin, supra.

Next, Johnson challenges the verdict as against the weight of the 

evidence. Brief for Appellant at 11-12. Johnson asserts that even if the 

evidence was sufficient to convict him of criminal mischief, “the verdict went 

against a finding of guilty,” as the trial court failed to give appropriate weight 

to his testimony. Id. at 12.

This Court has held that “[a] motion for new trial on the grounds that 

the verdict is contrary to the weight of the evidence, concedes that there is 

sufficient evidence to sustain the verdict.” Commonwealth v. Rayner, 153 

A.3d 1049, 1054 (Pa. Super. 2016) (quoting Commonwealth v. Widmer, 
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744 A.2d 745, 751 (Pa. 2000)). Our Supreme Court has described the 

standard applied to a weight of the evidence claim as follows:

The decision to grant or deny a motion for a new trial based upon 

a claim that the verdict is against the weight of the evidence is 

within the sound discretion of the trial court. Thus, the function 

of an appellate court on appeal is to review the trial court’s 

exercise of discretion based upon a review of the record, rather 

than to consider de novo the underlying question of the weight of 

the evidence. An appellate court may not overturn the trial court’s 

decision unless the trial court palpably abused its discretion in 

ruling on the weight claim. Further, in reviewing a challenge to 

the weight of the evidence, a verdict will be overturned only if it 

is so contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016) (internal citations

and quotation marks omitted). “[W]e do not reach the underlying question of 

whether the verdict was, in fact, against the weight of the evidence.... Instead, 

this Court determines whether the trial court abused its discretion in reaching 

whatever decision it made on the motion[.]” Commonwealth v. Ferguson, 

107 A.3d 206, 213 (Pa. Super. 2015) (citation omitted).

A challenge to the weight of the evidence must first be raised at the trial 

level “(1) orally, on the record, at any time before sentencing; (2) by written 

motion at any time before sentencing; or (3) in a post-sentence motion.” 

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017).

In this case, Johnson preserved his challenge by raising the issue in his 

post-sentence Motion and his Concise Statement. However, our review 

reveals that the trial court failed to address Johnson’s weight of the evidence 

claim, either in its denial of Johnson’s post-sentence Motion or in its Pa.R.A.P. 
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1925(a) Opinion. See Order, 4/28/21; Trial Court Opinion, 7/12/21, at 1-7. 

Because a weight challenge requires us to review the trial court’s exercise of 

its discretion, “[our] review requires an explicit trial court determination on 

the weight of the evidence[.]” Commonwealth v. Ragan, 653 A.2d 1286, 

1288 (Pa. Super. 1995); see also Ferguson, 107 A.3d at 213. Accordingly, 

we are constrained to remand and order the trial court to draft an opinion 

detailing its decision and findings on Johnson’s challenge to the weight of the 

evidence. Id. The trial court shall file its opinion within thirty days from the 

date this Memorandum is filed. This Court will address Johnson’s remaining 

claim following remand.

Case remanded with instructions. Panel jurisdiction retained.