J-A09031-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KASHAWN DIVINE FLOWERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 190 MDA 2022

Appeal from the Judgment of Sentence Entered December 21, 2021

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0001962-2019

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

CONCURRING/DISSENTING MEMORANDUM BY KUNSELMAN, J.:

 FILED: JULY 25, 2023

Unlike the Majority, I would find that the trial court abused its discretion 

by applying the wrong standard to deny Flowers’ motion for a new trial based 

on the weight of the evidence. I would therefore remand for the trial court to 

apply the correct standard. I concur in the Majority’s disposition of Flowers’ 

other issues.

The distinction between challenges to evidentiary weight and sufficiency 

is “critical.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). 

Unlike a sufficiency challenge, a weight-based motion for a new trial concedes

that the evidence was sufficient to sustain the verdict. Id. (citing 

Commonwealth v. Whiteman, 485 A.2d 459 (Pa. 1984)). On a weight 

claim, the trial court looks past “the abstract sufficiency of the evidence” to 

determine whether “notwithstanding all the facts, certain facts are so clearly 
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of greater weight that to ignore them or to give them equal weight with all the 

facts is to deny justice.” Id. at 751 & n.3 (quoting Tibbs v. Florida, 457 U.S. 

31, 38 n.11 (1982), and Thompson v. City of Phila., 493 A.2d 669, 674 (Pa. 

1985)). The trial court has discretion to grant a new trial in the extraordinary 

circumstance that “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.” Kimble v. Laser Spine Inst., 

LLC, 264 A.3d 782, 800 (Pa. Super. 2021) (en banc) (quoting Thompson, 

493 A.2d at 672)).

While the trial court has discretion in ruling on a weight claim, this 

discretion is limited. See id. An appellate court will reverse a trial court’s 

ruling if the trial court abused its discretion, that is, “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.” 

Widmer, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., Inc., 625 

A.2d 1181, 1185 (Pa. 1993)). For example, a trial court abuses its discretion 

by sitting as a “thirteenth juror” and usurping the jury’s role as fact finder. 

Commonwealth v. Martin, __ A.3d __, 2023 PA Super 105 (Pa. Super. June 

12, 2023). Importantly, a trial court also abuses its discretion by applying the 

standard for evidentiary sufficiency on a challenge to evidentiary weight. 

Commonwealth v. Sullivan, 820 A.2d 795, 806–07 (Pa. Super. 2003).

Here, the trial court’s only explanation for why it denied Flowers’ postsentence motion is in two paragraphs of the opinion entered after Flowers
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appealed. Trial Court Opinion, 4/18/22, at 9–10. In the first paragraph, the 

trial court accurately described the law about challenges to the weight of the 

evidence. In the second paragraph, after reiterating that the evidence was 

sufficient, the trial court explained that the jury was free to determine witness 

credibility and to make inferences. As to the deficiencies that Flowers alleged

in the evidence against him, the trial court stated that the jury could determine 

credibility of the cell phone-related testimony and that the jury “likely found” 

Martinez and Bruno-Carrasquillo to be credible and found that Flowers told 

them he committed the crime. Id.

From this, the Majority finds it “clear” that the trial court applied the 

correct standard and did not abuse its discretion by denying Flowers’ postsentence motion. Majority Memorandum at 13.

I disagree. Not only did the trial court omit any conclusion of whether 

the verdict shocked its conscience, but every step of its explanation referenced 

only the jury’s power to determine credibility. By focusing on the abstract 

sufficiency of the evidence presented to the jury, the trial court never indicated

that it separately considered whether weighing the facts of the case shocked 

its conscience so as to deny justice to Flowers. Based on this record, I am 

unable to conclude that the trial court applied the correct standard. Sullivan, 

820 A.2d at 806–07. Because the trial court denied Flowers’ weight-of-theevidence motion by applying a sufficiency-of-the-evidence test, I would 

remand for the trial court to apply the correct standard. Id. at 807 n.12 

(citing Widmer, 744 A.2d at 752).