J-A31009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DOMINIC COSMO MENNITI,

Appellee No. 686 EDA 2016

Appeal from the Order Entered February 18, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013068-2011

BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 18, 2017

The Commonwealth appeals from the trial court’s order granting a new 

trial to Appellee, Dominic Cosmo Menniti, based on the court’s determination 

that Appellee’s conviction, for aggravated assault and disarming a police 

officer, was against the weight of the evidence. After careful review, we 

affirm.

The following is an extremely brief summary of the evidence adduced 

at trial, stemming exclusively from the testimony of the arresting officers 

which, by the very nature of the claim before this Court, was called into 

question by the trial court’s order granting a new trial on weight-of-theevidence grounds. The incident leading to Appellee’s arrest occurred in the 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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early morning hours of July 21, 2011, in the 2300 block of South Warnock 

Street in South Philadelphia. Plain clothes Police Officers Charles James and 

Nicholas Colville were patrolling the area in an unmarked police car when 

they observed Appellee looking into a vehicle, which they believed he was 

doing for the purpose of ‘casing’ it, that is, examining the vehicle in order to 

determine whether it was a viable and/or lucrative target for the commission 

of a theft. The officers never observed Appellee make any attempt to break 

into the vehicle he was observed ‘casing,’ nor any other. Nevertheless, after 

observing Appellee’s suspicious behavior, the officers began to follow him in 

their unmarked patrol car. 

At some point during the pursuit, Officer James got out of the 

unmarked patrol car and began following Appellee on foot. Appellee 

apparently became aware he was being followed, and began looking in the 

direction of the officers’ vehicle. When Appellee got to an intersection, he 

walked around a corner out of the officers’ view, and then peeked back 

around the corner, eyeing the officers’ vehicle again. Soon thereafter, 

Officer James walked around that same corner, briefly addressed Appellee 

verbally,1at which time Appellee starting running away from him. Officer 

James gave chase for a few blocks before Appellee stopped.

____________________________________________

1 Officer James claimed he first identified himself as a police officer to 

Appellee, by saying, “[Are] you all right[?] I’m a police officer.” However, 

as will be discussed infra, how and when Officer James identified himself as 

(Footnote Continued Next Page)
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Officer James ordered Appellee to place his hands on a nearby car, and 

claimed that he again identified himself as a police officer by displaying the 

badge on his hip that had been previously covered by his shirt. Officer 

James then ordered Appellee to place his hands on a nearby wall, where he 

attempted to handcuff him. A prolonged struggle ensued when Appellee 

resisted being handcuffed. Early in the fracas, the handcuffs fell to the 

ground, at which time Officer James unholstered his firearm, put his finger 

on the trigger, and instructed Appellee to relax. Officer James again tried to 

handcuff Appellee, but Appellee grabbed the handcuffs, causing a scuffle 

that brought both men to the ground. As the men wrestled on the ground, 

Officer James’ radio fell out of his pocket, and his firearm fell out of its 

holster. Officer James immediately turned his attention to the firearm, 

attempting to secure it, while continuing to wrestle with Appellee. At this 

point, Officer James claimed that Appellee also tried to grab the firearm. 

Eventually, Officer James fired a shot, but claimed that Appellee continued 

to scuffle with him after a brief pause. Officer James then fired another shot 

after struggling to maintain control of his firearm, which he eventually lost. 

However, Officer James never observed Appellee with control of the gun. 

Soon thereafter, Officer Colville arrived on the scene, and testified that he 

saw Appellee with a firearm in his hand. He claimed that he told Appellee to 

(Footnote Continued) _______________________

a police officer to Appellee was a critical factor in the trial court’s 

determination that the verdict was against the weight of the evidence. 
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drop the firearm, but he could not remember what words he used to convey 

that command. When Appellee did not drop the firearm, Officer Colville fired 

four shots at him, striking Appellee in the abdomen, left groin, and the upper 

portion of his right arm. Officer James suffered some abrasions and a 

temporary loss of his hearing. Appellee was arrested, at which time 

marijuana and drug paraphernalia were found on his person. 

 Based on these events, Appellee was charged with aggravated 

assault of a police officer,2assault of a law enforcement officer,3 disarming a 

law enforcement officer,4simple assault,5 person not to possess a firearm,6

carrying a firearm in public in Philadelphia,7 possessing an instrument of 

crime,8reckless endangerment,9resisting arrest,10 and possession of drug 

____________________________________________

2 18 Pa.C.S. § 2702(a)(3). 

3 18 Pa.C.S. § 2702.1.

4 18 Pa.C.S. § 5104.1.

5 18 Pa.C.S. § 2701.

6 18 Pa.C.S. § 6105. 

7 18 Pa.C.S. § 6108.

8 18 Pa.C.S. § 907.

9 18 Pa.C.S. § 2705.

10 18 Pa.C.S. § 5104. 
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paraphernalia11 and marijuana.12 By order dated November 5, 2014, the 

trial court granted Appellee’s motion to suppress the seized evidence, 

thereby dismissing the drug-related charges.13 Just prior to trial, the 

Commonwealth nolle prossed all but three of the remaining charges, leaving

only aggravated assault of a police officer, disarming a law enforcement 

officer, and carrying a firearm in public in Philadelphia. Following a jury 

trial, which concluded on November 14, 2014, Appellee was convicted of the 

first two offenses and acquitted of the latter. Additionally, on the verdict 

slip, the jury twice indicated its finding that Appellee did not possess a 

firearm during his encounter with Officers James and Colville.

On November 21, 2014, Appellee filed a timely post-trial motion for 

extraordinary relief seeking, inter alia, a new trial based on a challenge to 

the verdict on weight-of-the-evidence grounds. On February 18, 2016, the 

trial court granted Appellee’s motion, thereby awarding him a new trial. 

On March 2, 2016, the Commonwealth filed a timely notice of appeal 

from the order granting Appellee a new trial, and contemporaneously filed 

____________________________________________

11 35 P.S. § 780-113(a)(32).

12 35 P.S. § 780-113(a)(31).

13 The trial court concluded that Appellant was subjected to an illegal 

investigative detention, having determined that the officers lacked a 

reasonable suspicion to stop him. See N.T. Suppression, 11/5/14, at 69-71. 
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an unprompted Pa.R.A.P. 1925(b) statement. On April 18, 2016, the trial 

court issued its Rule 1925(a) opinion. 

The Commonwealth now raises the following question for our review: 

“Did the [trial] court contravene the governing legal standard when it 

ordered a new trial based on the weight of the evidence?” Commonwealth’s 

Brief at 7. 

We apply the following standard of review to a challenge to a trial 

court’s determination that a verdict is against the weight of the evidence:

An appellate court's standard of review when 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. 

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 court's 

determination that the verdict is against the weight of the 

evidence. One of the least assailable reasons for granting 

or denying a new trial is the lower court's 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.

This does not mean that the exercise of discretion by the trial 

court in granting or denying a motion for a new trial based on a 

challenge to the weight of the evidence is unfettered. In 

describing the limits of a trial court's discretion, we have 

explained:

The term “discretion” imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate conclusion 

within the framework of the law, and is not exercised for 

the purpose of giving effect to the will of the judge. 

Discretion must be exercised on the foundation of reason, 
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as opposed to prejudice, personal motivations, caprice or 

arbitrary actions. Discretion is abused where the course 

pursued represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or where 

the law is not applied or where the record shows that the 

action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations 

omitted).

The Commonwealth argues that the trial court thrice abused its 

discretion in determining that the jury’s verdict was against the weight of 

the evidence. First, the Commonwealth claims the trial court “conflate[d] 

the legal standards for challenges to the sufficiency and weight of the 

evidence.” Commonwealth’s Brief at 7. In support of this claim, the 

Commonwealth points to the trial court’s opinion, wherein the court stated 

that it granted Appellee’s motion “based upon its agreement with him that 

the evidence was insufficient and/or lacked sufficient weight to convict[.]” 

Trial Court Opinion (TCO), 4/18/16, at 6. The court also stated that it found 

that “the facts were of such lack of sufficiency and weight to convict to the 

extent that the verdict[] shocked it[]s conscience[.]” Id. Elsewhere, the 

Commonwealth complains, the trial court cited the governing standard for 

sufficiency claims.

The Commonwealth’s argument is not convincing. The trial court 

certainly expressed its opinion that it believed the evidence was both 

insufficient and that the verdict was against the weight of the evidence. 

However, the trial court clearly did not rule on Appellee’s sufficiency claim, 

as it only granted Appellee a new trial, which is not the appropriate remedy 
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for a successfully argued sufficiency claim. Moreover, the passages cited by 

the Commonwealth do not even appear in the section of the court’s opinion 

addressing the weight of the evidence. The statements instead appear in 

the portion of the opinion titled, “Jurisdiction Over Interlocutory Appeals.” 

TCO at 3. 

In the section addressing the weight-of-the-evidence claim, the trial 

court did cite the standard for sufficiency claims. Id. at 9 (quoting 

Commonwealth v. Karkaria, 625 A.2d 1120 (Pa. 1983)). However, the 

court immediately thereafter cited the appropriate and correct standard 

applicable to weight-of-the-evidence claims. Id. (quoting Commonwealth 

v. Sullivan, 820 A.2d 795 (Pa. Super. 2003)). The court then stated, “[in] 

its review of the evidence infra, the court will demonstrate that the verdicts 

were clearly not supported by it.” Id. No such statement appeared 

following the court’s citation of the sufficiency standard. 

The Commonwealth’s hypercritical analysis of the trial court’s text 

does not convince us that the court abused its discretion by conflating the 

sufficiency and weight-of-the-evidence standards. Rather, a fairer reading 

of the court’s opinion demonstrates that while it believed that the evidence 

was both insufficient and against the weight of the evidence, it only granted 

relief based on Appellee’s weight-of-the-evidence claim. That the court was 

of both opinions does not render its weight-of-the-evidence analysis invalid. 

Moreover, the trial court’s opinion regarding the sufficiency of the evidence, 

whether correct or not, is immaterial to the matter before this Court. The 
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Commonwealth has appealed from an order granting a new trial on weightof-the-evidence grounds. Thus, the trial court’s statements regarding the 

sufficiency of the evidence are superfluous. 

It is often stated 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. Widmer, 

744 A.2d 745, 751 (Pa. 2000) (citing Commonwealth v. Whiteman, 485 

A.2d 459 (Pa. Super. 1984)). From the platform of this rule, the 

Commonwealth engages in another hypercritical attack on the trial court’s 

opinion, arguing that, “through a number of hyperbolic formulations,” the 

trial court asserted “that there was insufficient evidence that Officer James 

displayed his badge to [Appellee] to put him on notice that he was dealing 

with a police officer.” Commonwealth’s Brief at 21. The Commonwealth 

then fails to cite to any specific “hyperbolic formulation,” and instead cites to 

portions of the transcripts in an attempt to demonstrate the sufficiency of 

the evidence. Id. at 21-24. Again, the sufficiency of the evidence is not a 

matter before this Court, and therefore we need not address it. Moreover, 

the Commonwealth has waived any specific complaint about the trial court’s 

purported ‘hyperbolic formulations’ by failing to direct our attention to the 

portion of the court’s opinion where such statements appear. 

We are satisfied from our review of the record that the Commonwealth 

has failed to prove that the trial court abused its discretion by conflating the 

sufficiency and weight-of-the-evidence standards. The trial court’s thorough 
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and well-reasoned opinion did not conflate those standards but, instead, in 

what might be at worst described as an exercise in rhetorical excess, the 

court attempted to buttress its weight-of-the-evidence analysis with asides 

regarding its opinion on the evidence’s sufficiency. While unessential to the 

court’s weight-of-the-evidence analysis, it was not unreasonable, much less 

“manifestly unreasonable,” for the court to so, as it correctly applied the 

weight-of-the-evidence standard by engaging in a meticulous dissection of 

the rampant amount of conflicting evidence in this case. 

Second, the Commonwealth argues that the trial court abused its 

discretion by “conflating the propriety of the arrest and the propriety of the 

jury’s verdict.” Commonwealth’s Brief at 24. Essentially, the 

Commonwealth contends that circumstances surrounding the arrest were 

irrelevant to the jury’s verdict, citing the law that “the lawfulness of [an] 

arrest is irrelevant to the charge of aggravated assault,” Commonwealth v. 

Biagini, 655 A.2d 492, 498 (Pa. 1995), and that the use of force is not 

justified “to resist an arrest which the actor knows is being made by a peace 

officer, although the arrest is unlawful[,]” 18 Pa.C.S. § 505(b)(1)(i). The 

Commonwealth contends the trial court abused its discretion by failing to 

apply these legal precepts to its weight-of-the-evidence analysis.

Our review of the record and applicable case law belies the 

Commonwealth’s claim. Appellee was convicted under 18 Pa.C.S § 

2702(a)(3), which required the Commonwealth to prove that he 

“attempt[ed] to cause or intentionally or knowingly cause[d] bodily injury to 
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[a police officer]” who was “in the performance of [his or her] duty.” 18 

Pa.C.S § 2702(a)(3), (c)(1). Notably, proof of an officer’s status is not, 

strictly speaking, an element of that crime. See Commonwealth v. 

Flemings, 652 A.2d 1282, 1285 (Pa. 1995) (“We do not interpret the 

language ‘in performance of duty’ to require a defendant to have knowledge 

of the officer's official status....”). However, 

[a] defendant's ignorance of an officer's official status is relevant 

in those rare cases in which an officer fails to identify himself 

and then engages in a course of conduct which could reasonably 

be interpreted as the unlawful use of force directed either at the 

defendant or his property. Under such circumstances, a 

defendant would normally be justified in using reasonable force 

against his assailant. He could then be found to have exercised 

self defense, which would negate the existence of mens rea.

Id. at 1285. 

This was the essence of the case at issue. Indeed, in its recitation of 

applicable law, the trial court quoted extensively from Flemings (thereby 

demonstrating its knowledge of the general rule), while emphasizing the 

language defining the exception. See also id. (“[W]e hold that a 

defendant's lack of knowledge should only be considered in those cases in 

which a defendant acts with the mistaken belief that he is threatened with 

an intentional tort by a private citizen.”). 

Thus, in this case, some of the same circumstances which were 

essential to determining whether Appellant was lawfully arrested were also 

relevant to whether Appellant held a “mistaken belief that he [was] 

threatened with an intentional tort by a private citizen.” Id. It is in this 
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context that the trial court discussed conflicting evidence regarding Officer 

James’ behavior, and the purported basis he offered for subjecting Appellee 

to an investigative detention.14,15 Thus, we reject the Commonwealth’s 

claim that consideration of such evidence, in the trial court’s analysis of the 

weight-of-the-evidence issue, was an abuse of discretion. 

Finally, the Commonwealth asserts that the trial court abused its 

discretion by simply substituting its credibility determination for that of the 

____________________________________________

14 Both categories of evidence could have impacted whether Appellee had a 

mistaken belief that he was being assaulted by a private citizen. The 

manner in which the first category affects such a determination is most 

obvious; how and when Officer James, who was not in uniform, identified 

himself during the course of events that occurred are clearly pertinent to 

whether Appellee’s mistaken belief was reasonable. The latter category of 

evidence, regarding Appellee’s conduct which gave rise to the officers’ 

suspicion, is also relevant for that purpose. Hypothetically speaking, if a 

defendant had just robbed a bank, it would hardly be reasonable for him to 

claim that he mistakenly believed the person attempting to handcuff him 

outside that bank was a private citizen intending to commit an intentional 

tort against him. Here, however, Appellee’s observed behavior (looking into 

parked vehicles) was not so inherently criminal; it was merely suspicious 

from the officers’ viewpoint. When contrasted with the hypothetical 

scenario, since he had not committed a crime in the moments preceding his 

interaction with Officer James, it was more reasonable for Appellee to have 

believed he was not being followed and then assaulted by a police officer. 

 

15 The Commonwealth attempts to argue, under the auspices of this subclaim, that the trial court erred when it determined that the investigative 

detention of Appellee was unlawful. Commonwealth’s Brief at 24-26. This is 

inappropriate in the context of a weight-of-the-evidence claim and, 

nevertheless, it has been waived. The Commonwealth did not preserve 

any such claim in its Rule 1925(b) statement. “Any issues not raised in a 

1925(b) statement will be deemed waived.” Commonwealth v. Lord, 719 

A.2d 306, 309 (Pa. 1998). 
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jury. The Commonwealth argues that this is because “not a single witness 

claimed that [Appellee] was unaware Officer James was a police officer, or 

that Officer James did not show [Appellee] his badge before frisking and 

attempting to arrest him.” Commonwealth’s Brief, at 27.

We disagree. The Commonwealth, in contravention of our standard of 

review, construes the evidence in question in a light most favorable to the 

Commonwealth, which, while the appropriate lens through which to analyze 

sufficiency claims, is not applicable to weight-of-the-evidence claims. The 

Commonwealth does this by isolating aspects of Officer James’ testimony 

which would render the evidence sufficient to support Appellee’s convictions. 

As the Commonwealth repeatedly acknowledges in its brief, a weight-of-theevidence claim concedes the evidence’s sufficiency. 

Here, the problem was that Officer’s James’ testimony was so 

inconsistent and contradictory internally, in relation to Officer Colville’s 

testimony, as well as being at odds with the Commonwealth’s own, 

disinterested witnesses’ testimony, that the jury’s verdict shocked the 

conscience of the trial court. These inconsistencies were not confined solely 

to the issue of when and how Officer James showed his badge to Appellee.16 

____________________________________________

16 These serious and extensive inconsistencies were demonstrated in great 

detail in the factual history provided by the trial court. TCO at 14-43. The 

most pertinent inconsistencies, with respect to Appellee’s defense, were then 

highlighted by the trial court in its legal analysis. Id. at 43-48. The 

Commonwealth’s argument focuses only on a single aspect of this analysis, 

(Footnote Continued Next Page)
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Nevertheless, the fact that Officer James showed Appellee a badge, while 

potentially sufficient to undermine Appellee’s mistaken belief, is again an 

argument directed at the sufficiency of the evidence, not its weight. In its 

opinion, the trial court thoroughly and convincingly discussed the rampant 

inconsistencies in the Commonwealth’s case which led the court’s conscience 

to be shocked by the verdict. In determining that the jury’s verdict was 

against the weight of the evidence, the court did not rely solely on 

inconsistencies and/or contradictions regarding Officer James’ testimony 

addressing the timing and circumstances of his claim that he showed 

Appellee his badge before attempting to handcuff him. The 

Commonwealth’s failure to contend with the vast number of other 

contradictions and inconsistencies discussed by the court in its opinion, while 

focusing on a single aspect of the court’s decision, is misleading with respect 

to the record below. Therefore, the Commonwealth has failed to convince us 

that the trial court merely substituted its credibility determination for that of 

the jury.

In sum, therefore, we ascertain no abuse of discretion in the trial 

court’s granting Appellee a new trial on weight-of-the-evidence grounds. 

The Commonwealth has failed to show that the trial court misapplied the 

(Footnote Continued) _______________________

giving the false impression that it was the sole basis for the trial court’s 

decision. 
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law, ruled in a manifestly unreasonable manner, or demonstrated partiality, 

prejudice, bias or ill-will in its decision.

Order affirmed.

Justice Fitzgerald joins this memorandum.

Judge Moulton concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/18/2017