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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

KASHAWN DIVINE FLOWERS

Appellant : : : : : : : : : 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 t he 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, t he trial court look s past “the abstract sufficiency of the evidence” to determine whether “notwithstanding all the facts, certain facts are so clearlyJ

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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 evi dence 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 t he trial court ha s 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 un reasonable 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 exampl e , a trial court abuse s 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 a lso abuses its discretion by applying the standard for evidentiary sufficiency on a challenge to evidentiary weight. Commonwealth v. Sullivan , 820 A.2d 795, 80 6

– 07 (Pa. Super. 2003). Here, the trial court’s only explanation for why it denied Flowers’ post

sentence motion is in two paragraphs of the opinion entered after FlowersJ

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appeal ed . Trial Court Opinion, 4/18/22, at 9

– 10. In the first paragraph, the trial court accurately describe d the l aw about challenges to the weight of the evidence. In the secon d paragraph, after reiterating that the evidence was sufficient, the trial court explain ed that the jury was free to determine witness credibility and to make inferences. As t o the deficiencies that Flowers alleged in the evidence against him , the trial court state d that the jury could determine credibilit y 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 commi tted the crime. Id. From this, t he Majority finds it “clear ” that the trial court applied the correct standard and did not abuse its discretion by denying Flowers’ post

sentence 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 it s 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 indicat ed 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

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evidence motion by applying a sufficiency

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- 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).