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

v.

MATTHEW MICHAEL WINAND

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 676 MDA 2019 Appeal from the Judgment of Sentence Entered December 20, 2018 In the Court of Common Pleas of Adams County Criminal Division at

No(s): CP

- 01

- CR

- 0000360

- 2018

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J. MEMORANDUM BY BOWES, J.: FILED NOVEMBER 25, 2019 Matthew Michael Winand appeals from the December 20, 2018 judgment of sentence of eighteen months to four years of incarceration, followed by three years of probation, which was imposed after a j ury convicted him of burglary, criminal conspiracy to commit burglary, and simple assault. He challenges the weight of the evidence supporting his convictions. We affirm. The charges stemmed from events occurring on March 23 and 24, 2018. Andrew Hemp fing (“the victim”) encountered Appellant at a bar in East Berlin, Adams County , Pennsylvania

. Appellant and the victim formerly had been friends . The friendship soured two years earlier when there was a rumor linking Appellant romantically to the victim ’s wife. At the bar on the evening of March 23, 2018, Appellant and the victim played one uneventful game of pool. Thereafter, words were exchanged, and the v i ctim placed Appellant inJ

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a chokehold and smashed his face against the floor, conduct that resul ted in the victim’s ejection from the bar. P resent at the time were Appellant’s co defendant Tyler Mummert , and Appellant’s brother Andrew Hoff. The v ictim returned to his home approximately five miles away from the scene of the fight, and immediately accessed his Facebook account. He posted the following: “hey [Appellant] , you crack head mother f

---- r . . . I will see you someday soon when I have a little bit more room to swing.” N.T. , 10/9/18, at 76

- 77. He added, “U know where I reside don’t be shy.” Id . at 94. After posting the se messages, the v ictim awakened his wife and told her what had occurred. He t hen rec e ived a call from Appellant through Facebook, announcing “we’re on our way.” The v ictim replied, “ain’t no we about it

. . . I said . . . I’ll see you tomorrow or another day.” Id . at 77

- 78. At his wife’s urging, t he victim called 911, and Officer Larry L. Kitzmiller , Jr., a patrolman with the Eastern Adams Regional Police Department, was dispatched to victim’s residence. The victim told the officer about the bar incident and the Facebook posts, and the officer advised him to go back in the house and he would patrol the area. The v ictim went to sleep with his wife in the upstairs bedroom. According to the victim’s wife, she was awakened by the thundering sound of footsteps c oming up the sta irs , followed by the bedroom door being kicked
open. Appellant entered the bedroom, tackled the v ictim, and they struggled on the bed

. While Appellant had a grip on the v ictim, co - defend ant struck him fifteen to twenty times around the head , causing a bloody nose, chipped tooth,J

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a laceration to his ear, and bruises and cuts. While the assault was taking place, Hoff stood in the doorway to the bedroom. The noise awakened the v i ctim’s four

- year - old daughter , who witnessed the events from the hallway. The v ictim’s wife testified that her daughter was scared and screaming , so she collected the child and went upstairs to her father

- in

- law’s attic room

. The intruders fled when the v ictim’s father came downstairs. The victim again called police. When O f ficer Kitzmiller arrived at the residence , the v ictim was sitting on his front porch with visible injuries. Andrew Hoff provided a statement and testified on behalf of the Commonwe alth after pleading guilty to criminal trespass pursuant to a plea agreement . He testified that he had known the v ictim and his wife for five
years ; that he and Appellant are brothers ; and that he is a close friend of co

defend ant

. Hoff was present with Appellant and co

- defend ant at the bar tha t evening, and he witnessed the v ictim assault Appellant. After leaving the bar, the three men w ent to Hoff’s house and continued to drink alcohol. He saw the Facebook message from the v ictim, showed it to Appella nt and co

defendant, prompting the decision to drive to the v ictim’s home.
Ac cording to Hoff, the three men parked behind the home in an alley, and first knocked at the back door to gain access. When no one answered, they confirmed that the door was lo cked. They proceed ed around the house to the front door, which was closed but unlocked , and Appellant entered without knocking. The three men went upstairs. According to Hoff, the v ictim was standing in his bedroom doorway. Appellant and the v ictim argued, andJ

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then it turned physical. The c o - defend ant joined the fray, fists were flying, and Hoff and the v ictim’s wife tried to stop the fight. As they left, Hoff told the v ictim’s father, “your boy f

---- d with the wrong ones,” meaning Appellant,

co - defend ant , and himself. Id . at 157. Appellant testified that he took the Facebook post as “an invitation to come” and acknowledged that he went there to fight. Id . at 201. Upon arriving at the victim’s home, he knocked at the back door. When t he re was no answer, the y went around to the front door. Appellant said he did not knock at the front door because the victim was already at the top of the steps inside. When asked how he knew the location of the victim when the door was closed, Appellant m aintained that he “could hear him coming” as “[h]e was already screaming at the top of the steps.” Id . at 216. Appellant opened the door and proceeded up the stairs where a scuffle ensued. The jury convicted Appellant of one count each of burglary, c riminal conspiracy to commit burglary, and simple assault

. Appellant was sentenced on December 20, 2018, as aforesaid. Following the denial of A ppellant ’s post
sent e nce motion , he filed a timely appeal to this Court and complied with the trial court’s or der to file a Pa.R.A.P

. 1925(b) concise statement of error s complained of on appeal. The trial court penned its Rule 1925(a) opinion, and the matter is ripe for our review. Appellant presents one issue: “Whether the convictions of burglary and conspiracy to commit burglary were against the weight of the evidence?” Appellant’s brief at 6 (unnecessary capitalization omitted).J

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The law is well settled that the weight of the evidence is a matter for the fact finder, who is free to believe all, part, or none of the evidence and to assess the credibility of the witnesses. “A new trial is not warranted because of a mere conflict in the testimony

. . . . R ather, 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.” Commonwealth v. Rosser , 135 A.3d 1077, 1090 (Pa.Super. 2016) ( en banc ). Our role on appeal is limited to determining whether the trial court abused its discretion in determining that the verdict did not shock its
conscience. Id . In doing so, we do not review the underlying question whether the verdict is against the weight of the evidence, but rather, the trial court’s exercise of discretion. This is why it is often said that a trial court ’ s de nial of a post
- sentence motion “ based on a weight of the evidence claim is the least assailable of its rulings. ” Commonwealth v. Diggs , 949 A.2d 873, 880 (Pa. 2008). Appellant contends that his convictions of burglary and conspiracy to commit burglary were against the weight of the evidence because the v ictim consented to Appellant ente ring his home when he assaulted him and taunted him to come and fight . Appellant’s brief at 13. He cites Commonwealth v. Stark , 407 A.2d 853, 855 (Pa.Super. 1979), for the proposition that one entering a premises with permission is not a burglar even if he intends toJ

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commit a crime. He argues th a t th e vi ctim’s Facebook post , “U k now w here I reside don’t be shy , ” granted him permission to enter, a defense to burglary.
N.T. , 10/9/18, at 94; s ee § 3502(b)(3). Furthermore, he told the v ictim that he was on his way , and walked through an open door when he arrived. The trial court noted that it properly instructed the jury that it was a defense to burglary if the defendant was licensed or privileged t o ent e r the residence. Trial Court Opinion, 6/18/19, at 9 (citing 18 Pa.C.S. § 3502(b)(3) )

. In the trial court’s view, the jury “rightfully rejected Appellant’s defense.” Id

. at 10. The trial court pointed to evidence refuting Appellant’s contention that the victim invited Appellant to enter his home that ni ght. A fter Appellant told the victim that they were on their way, the victim responded , “Ain’t no we about it”

. . . “ I’ll see you tomorrow or another day.” Id . (citing N.T., 10/9/18, at 80). Furthermore, the trial court noted that there was evidence th e victim
was in his boxers, in bed, sleeping with his wife when the three men entered through a closed fro n t door

. Based on the foregoing, t he court stated that the jury’s verdict did not sh o ck its sense of justice , and that the weight of the evidence claim was “meritless.” Id

. We find no abuse of discretion on the part of the trial court . Hence, we affirm. Judgment of sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 11/25/2019