J-A05036-22

2022 PA Super 97

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

WILLIAM R. LANDIS JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 611 MDA 2021

Appeal from the Order Entered April 16, 2021

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

No(s): CP-06-CR-0005405-2009

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*

DISSENTING OPINION BY KUNSELMAN, J.: FILED MAY 26, 2022

Initially, I would find that the Commonwealth waived its challenge to 

the trial court’s discretionary ruling. On the merits, I would find that the trial 

court properly considered the issue that William R. Landis, Jr. raised in his 

post-sentence motion for a new trial and did not abuse its discretion by 

granting the motion. Finally, even if the trial court did not apply the correct 

standard, I would remand for it to do so. Therefore, I respectfully dissent.

The preeminent issue throughout this case’s extensive history has been 

whether Landis had the requisite mental state for murder of the first degree. 

At this second trial, both sides presented evidence and argument to the jury 

about the diminished-capacity defense, which would demonstrate that Landis 

was intoxicated to an extent that he was unable to form the requisite intent. 

Commonwealth v. Mason, 130 A.3d 601, 630 (Pa. 2015) (citing 

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* Former Justice specially assigned to the Superior Court.
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Commonwealth v. Spotz, 896 A.2d 1191, 1218 (Pa. 2006)). Notably, if 

Landis had already formed the specific intent to kill before becoming 

intoxicated, this defense would fail. See Commonwealth v. McMurray, 47 

A. 952, 953–54 (Pa. 1901) (approving a jury instruction that once a defendant 

forms “the specific purpose to kill,” his subsequent voluntary intoxication does 

not prevent a conviction for murder of the first degree).

The Commonwealth’s forensic psychiatrist, Dr. John O’Brien, testified 

directly to the key issue of whether Landis could and did possess the intent to 

kill. Dr. O’Brien concluded that Landis was capable of forming the intent to 

kill. N.T., 9/15/20, at 1140. Dr. O’Brien based his conclusion in part on 

investigative interviews of the two Florida hotel witnesses, which he claimed

documented that Landis discussed his intention to kill and said he was going 

to shoot his wife. Id. at 1138, 1146. Dr. O’Brien continued:

So there’s an awful lot there that indicates that [Landis] did have 

a presence of mind, an awareness of the gun and did use the gun 

in a manner that reflected that it was shot a number of times, not 

just once as you would expect to see in an accidental gun 

discharge, and that the victim was a moving victim so that it 

required moving of the gun, and the aim improved with each shot.

And so in my opinion, there is evidence that is consistent 

with the shooting being an intentional act. But that’s not my 

assessment to perform. That’s not my opinion to render.

Id. at 1146. The jury convicted Landis of murder of the first degree.

Landis filed a post-sentence motion in which he argued that the evidence 

demonstrated that he did not have a specific intent to kill the victim, detailing 

why his own expert Dr. Larry Rotenberg’s testimony was better supported 
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than Dr. O’Brien’s. He challenged Dr. O’Brien’s testimony, which was the only 

time that the jury heard the unsupported assertion that Landis had previously 

expressed an intention to shoot his wife.1 The trial court heard argument and 

granted a new trial on exactly this basis.

As a threshold matter, I would find that the Commonwealth waived its 

issue. In its brief, the Commonwealth conflates the standards for challenges 

to the sufficiency and to the weight of the evidence, as well as a harmlesserror standard. Commonwealth’s Brief at 21–29 (arguing that the weight of 

the evidence, including Dr. O’Brien’s testimony, was “sufficient” and that his 

inaccuracy was harmless error because the jury could infer intent from the 

other evidence). Landis cogently argues that we should find waiver based on 

the same defect in the Commonwealth’s statement of matters complained of 

on appeal. Landis’ Brief at 9–11. I would find that by failing to indicate how 

the trial court abused its discretion, the Commonwealth has not properly 

framed its issue for our review. See Commonwealth v. Rogers, 259 A.3d 

539, 541–42 (Pa. Super. 2021) (finding a challenge to a trial court’s ruling on 

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1 The Majority emphasizes that when Dr. O’Brien testified, the jury had already 

heard the witnesses whose police statements he described. Majority Opinion, 

at n.7. However, the jury could not glean from the witnesses’ testimony what 

they had told the police—Ms. Brown did not remember, and Ms. Johnson was 

not asked. N.T., Trial Vol. II, 9/10/20, at 502 (“Q. You gave a statement to

[the detectives]? A. I don’t remember what I said; but, yes, I do. I think I 

did. I don’t remember.”); id. at 533 (addressing only the setting of the police 

interview, not the contents). Both were excused before Dr. O’Brien testified. 

Dr. O’Brien’s testimony was the only evidence before the jury of what Ms. 

Brown and Ms. Johnson told police.
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a weight-of-the-evidence claim to be meritless where the appellant did not 

argue that the court abused its discretion).2

Conversely, I would find that Landis preserved his challenge to the 

weight of the evidence. Landis filed a timely post-sentence motion, in which 

he detailed why the weight of the competing experts was in his favor on the 

specific issue of diminished capacity. See Pa.R.Crim.P. 607(A)(3) (providing 

for challenges to the weight of the evidence to be raised in a post-sentence 

motion). He noted defects in Dr. O’Brien’s testimony and argued that the 

weight of the evidence favored Landis. N.T., 2/11/21, at 8–11, 21. The trial 

court granted Landis’ motion for a new trial based on these arguments. 

Because Landis argued a specific issue, which the trial court addressed, he 

preserved his challenge. Cf. Commonwealth v. Widmer, 689 A.2d 211 (Pa. 

1997) (finding a challenge to the weight of the evidence to be preserved where 

the trial court addressed it, despite the defendant not filing a post-sentence 

motion).

Accordingly, I would find that the trial court did not abuse its discretion. 

Rather, it properly assessed the specific challenge that Landis raised. Whether 

to grant a new trial based on the weight of the evidence is within the trial 

court’s sound discretion:

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2 Although the Commonwealth correctly stated that the standard of review is 

abuse of discretion, it never argued how the trial court’s decision overrode or 

misapplied the law or how the trial court’s judgment was manifestly 

unreasonable or was the product of partiality, prejudice, bias, or ill-will.
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[O]ne 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. A new trial is warranted in this 

context only when the verdict is so contrary to the evidence that 

it shocks one’s sense of justice and the award of a new trial is 

imperative so that right may be given another opportunity to 

prevail.

Commonwealth v. Smith, 181 A.3d 1168, 1187 (Pa. Super. 2018) (citations 

omitted).

In this context,

the trial court is under no obligation to view the evidence in the 

light most favorable to the verdict winner. Tibbs [v. Florida, 457 

U.S. 31, 38 n.11 (1982)].

fn3

. . . 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. 

[Commonwealth v.] Thompson, [648 A.2d 315 (Pa. 1994)]. A 

trial judge must do more than reassess the credibility of the 

witnesses and allege that he would not have assented to the 

verdict if he were a juror. Trial judges, in reviewing a claim that 

the verdict is against the weight of the evidence do not sit as the 

thirteenth juror. Rather, the role of the trial judge is to determine 

that “notwithstanding all the facts, 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.

[footnote 3] In Tibbs, the United States Supreme Court found the 

following explanation of the critical distinction between a weight 

and sufficiency review noteworthy:

When a motion for new trial is made on the ground that the 

verdict is contrary to the weight of the evidence, the issues 

are far different.... The [trial] court need not view the 

evidence in the light most favorable to the verdict [winner]; 

it may weigh the evidence and in so doing evaluate for itself 

the credibility of the witnesses. If the court concludes that, 

despite the abstract sufficiency of the evidence to sustain 

the verdict, the evidence preponderates sufficiently heavily 

against the verdict that a serious miscarriage of justice may 

have occurred, it may set aside the verdict, grant a new 
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trial, and submit the issues for determination by another 

jury.

Tibbs[,] 457 U.S. at 38 n.11[,] quoting United States v. 

Lincoln, 630 F.2d 1313 ([8th Cir.] 1980).

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000). Indeed, “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.” Sprang & Co. v. 

U.S. Steel Corp., 545 A.2d 861, 866 (Pa. 1988) (quoting Thompson v. City 

of Phila., 493 A.2d 669, 672 (Pa. 1985)). While the credibility of witnesses 

is “primarily” a determination for the jury, “when the trial court is satisfied 

that the jury’s verdict was based on incredible or unbelievable evidence, the 

court is obligated to grant a new trial.” Houseknecht v. Walters, 590 A.2d 

20, 24 (Pa. Super. 1991) (citing Gougher v. Hansler, 130 A.2d 150 (Pa. 

1957)).3 Finally:

Regarding the “abuse of discretion” standard of review, [the 

Pennsylvania Supreme] Court has explained that 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 [trial] judge. Absent an abuse of that discretion, 

an appellate court should not disturb a trial court’s discretionary 

ruling. An appellate court will not find an abuse of discretion 

based on a mere error of judgment, but rather ... where the [trial] 

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3 Houseknecht quoted Commonwealth v. Farquharson, 354 A.2d 545, 

550 (Pa. 1976), to illustrate that review of jury determinations of credibility is 

inherent in only the trial court’s task in ruling on a motion for a new trial, not 

in appellate review of that ruling. Although Farquharson has since been held 

to pertain to a sufficiency claim, Commonwealth v. Brown, 52 A.3d 1139, 

1157 n.18 (Pa. 2012), its logic stays true as underpinning a weight claim.
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court has reached a conclusion which overrides or misapplies the 

law, or where the judgment exercised is manifestly unreasonable, 

or the result of partiality, prejudice, bias or ill-will.

Importantly, an appellate court should not find that a trial 

court abused its discretion merely because the appellate court 

disagrees with the trial court’s conclusion. Indeed, when 

reviewing the trial court’s exercise of discretion, it is improper for 

an appellate court to “step[ ] into the shoes” of the trial judge and 

review the evidence de novo. In other words, an appellate court 

may not disturb a trial court’s discretionary ruling by substituting 

its own judgment for that of the trial court.

Commonwealth v. DiStefano, 265 A.3d 290, 297–98 (Pa. 2021) (citations 

and quotation marks omitted).

Here, the trial court observed the entire proceeding and understood that 

whether Landis could and did form the specific intent to kill was the central 

issue of the case. Opinion, 4/16/21, at 4 (“This court . . . knows this case 

better than any other one presided over in the last twenty-nine years on the 

bench.”); id. at 2, 5 (summarizing defense at trial). The court described the 

weight of the testimony from Dr. Rotenberg and Dr. O’Brien, the two experts 

who addressed this central issue. Id. at 2–4. The court found six defects 

with Dr. O’Brien’s presentation: (1) he did not retain his notes, (2) he misled 

the jury about his reasons for doing so, (3) he falsely testified that Landis had 

told the Florida hotel witnesses that he intended to shoot his wife, (4) he had 

framed this evidence in the context of the jury’s crucial determination in this 

case, (5) his report was never admitted into evidence, and (6) he falsely 

testified about the order of shots and that Landis improved his aim. Trial 
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Court Opinion, 6/29/21, at 11–14. The trial court concluded that these defects

unfairly surprised and prejudiced Landis. Id. at 16.

Nothing here reflects that the trial court abused its discretion. 

DiStefano, supra. Although the trial court did not use formulaic terms like 

“miscarriage of justice” or “shocks one’s sense of justice,” it assessed the 

effect on justice of the key expert testimony that the Commonwealth and 

Landis presented. Indeed, it is hard to read the court’s conclusion that after 

“Dr. O’Brien misled the jurors with lies, speculation, and undocumented 

opinions,” they “were unable to make a knowing decision based on the facts, 

the evidence, and the expert reports,” which caused an unlevel “playing field” 

as anything but a finding of a miscarriage of justice that shocks the conscience 

of the trial court. See Houseknecht, supra (obligating a trial court to grant 

a motion for a new trial based on the weight of the evidence when it finds 

“that the jury’s verdict was based on incredible or unbelievable evidence”). 

Therefore, I would find that the trial court did not abuse its discretion.

Finally, even if the trial court did not apply the correct standard when it 

granted Landis a new trial, the appropriate remedy would be to remand for 

the trial court to apply the correct standard. It is not to simply reverse the 

grant of a new trial and reinstate the judgment of sentence. Based on our 

standard of review, when a trial court does not apply the correct standard in 

evaluating a weight-of-the-evidence claim, our role is to remand with 

directions to determine whether the jury verdict shocks the trial court’s sense 

of justice. Commonwealth v. Sullivan, 820 A.2d 795, 807 (Pa. Super. 
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2003) (citing Widmer, 744 A.2d 745, and Commonwealth v. Brown, 648 

A.2d 1177 (Pa. 1994)).

For these reasons, I respectfully dissent.