J-S67004-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Former Justice specially assigned to the Superior Court. COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TOM HAL CORNELISON, III, : : Appellant : No. 1913 WDA 2013

Appeal from the Judgment of Sentence July 19, 2012, Court of Common Pleas, Cambria County, Criminal Division at No. CP-11-CR-0000769-2011 BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ. MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 17, 2014 Appellant, Tom Hal Cornelison, III (“Cornelison”), appeals from the judgment of sentence of the Court of Common Pleas, Cambria County, following his convictions of burglary, 18 Pa.C.S.A. § 3502(a), criminal trespass, 18 Pa.C.S.A. § 3503(a)(1)(ii), and crimin al mischief, 18 Pa.C.S.A. § 3304(a)(4). After a review of the record, we aff irm the judgment of

sentence. A summary of the relevant facts and procedural his tory are as follows. Cornelison was involved in an on-and-off relationsh ip with Dora Vetter (“Vetter”). On March 26, 2011, Cornelison called V etter and asked her if she would give him a ride to do a few errands. During this time, Cornelison and Vetter got into an argument. As a result of the ar gument, Vetter dropped Cornelison off at an establishment. Throughout the course of the day,J-S67004-14

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Cornelison called Vetter numerous times. Vetter to ok some of the calls but ignored others. That evening, Vetter returned to h er home to find her front door broken open and the door frame damaged. Every room of her house was in disarray and damaged. Vetter immediat ely called the police. While the police were at her house, Vetter found a wallet on the floor. The police opened the wallet and found Cornelison’s driver’s license inside. The police went to Vetter’s neighbors’ homes to ask if anyone had seen anything. One neighbor, Judith Litko (“Litko”) tol d police that Cornelison knocked on her door and asked to use her phone. Li tko allowed Cornelison to use her phone. After Cornelison put the phone d own, Litko watched him walk across the street to Vetter’s home, slam into the door with his shoulder, fall into the apartment, and then close t he door. When the police hit the redial button on Litko’s phone, Vetter’s ph one rang. Cornelison was charged with the aforementioned cri mes. A jury trial commenced on February 29, 2012. At trial, Cornelis on did not dispute that he broke down the door to Vetter’s home and destroy ed the house, but argued that he had permission to be at Vetter’s hom e. At the conclusion of testimony, the jury found Cornelison guilty of all charges. On July 12, 2012, Cornelison filed a motion for new trial, challenging the weight of the evidence. The trial court denied the motion for new trial on July 17, 2012. On July 19, 2012, the trial cour t sentenced Cornelison to 20 to 40 months of incarceration. Cornelison filed a post-sentence motionJ-S67004-14

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on July 30, 2012. Oral arguments on the post-sente nce motion were held on October 5, 2012. In a written opinion on Novemb er 1, 2012, the trial court denied Cornelison’s post-sentence motion. Co rnelison did not file a direct appeal at that time. On June 7, 2013, Cornelison filed a petition for re lief pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et. seq . On September 5, 2013, the PCRA court reinstated Cornel ison’s direct appeal rights and right to file post-sentence motions with in 10 days. The PCRA court deferred ruling on Cornelison’s remaining cla ims pending the conclusion of direct review. On September 13, 2013 , Cornelison filed postsentence motions requesting a judgment of acquittal , a new trial, and a modification of his sentence. On November 7, 2013, the trial court denied Cornelison’s motions for a judgment of acquittal an d a new trial, as well as Cornelison’s motion to modify his sentence based on excessiveness. The court deferred ruling on Cornelison’s motion to mod ify his sentence based on the court’s alleged failure to credit Cornelison wi th a certain amount of time served. It finally disposed of Cornelison’s post-s entence motions on November 18, 2013. On November 21, 2013, Cornelison timely filed a no tice of appeal to this Court. He raises the following issue for our review:

Whether the verdict reached by the jury to convict [Cornelison] of burglary and criminal trespass, and which was sustained by the trial court on post-J-S67004-14

- 4 - sentence motions, was against the weight of the evidence presented by the Commonwealth? Cornelison’s Brief at 4. Cornelison argues that “the Commonwealth utilized largely circumstantial, self-serving, and unreliable eviden ce against [him,]” and failed to produce eye-witness testimony of the crim es for which he was convicted. Id . at 8. Cornelison further argues that “[t]he major ity of the witnesses with knowledge of the situation in this c ase gave interesting testimony that strongly suggested that [he] lived a t the victim’s residence[,]” and that the only witness to testify any differently was the
victim. Id . at 8-9. In its written opinion pursuant to Pa.R.A.P. 1925(a ), the trial court noted that “the [c]ourt twice denied [Cornelison’s] post-sentence motions for a new trial challenging the weight of the evide nce presented at trial.” Trial Court Opinion, 1/15/14, at 3. The trial cour t concluded that it did not abuse its discretion by denying Cornelison’s motion for a new trial as it “presided over the trial and the evidence.” Id . Furthermore, the trial court found that “it cannot be said that the jury rendere d a verdict that was so contrary to the evidence as to shock one’s sense of justice.” Id . Our standard of review is well settled:

A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A n ew trial should not be granted because of a mere confl ictJ-S67004-14

- 5 - in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, ‘the role of the trial judge is to determin e 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 den y justice.’’ It has often been stated that ‘a new tri al should be awarded when 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.’ * * * 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 th e gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against t he 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 wa s not against the weight of the evidence and that a new trial should be granted in the interest of just ice. 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[,] [t]h e 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 t he will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursuedJ-S67004-14

- 6 - 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. Horne , 89 A.3d 277, 285-86 (Pa. Super. 2014) (citing Commonwealth v. Clay , 64 A.3d 1049, 1054-55 (Pa. 2013) (emphasis in original) (citations omitted)). In this case, although Cornelison frames the issue as an abuse of discretion claim, he does not present any argument as to how he believes the trial court abused its discretion in denying hi s request for a new trial. Instead, he directs his entire argument to the unde rlying question of whether his convictions are against the weight of t he evidence. See Cornelison’s Brief at 8-9. As stated above, this i s not the question before us for review, as our review is limited to determining whether the trial court abused its discretion in ruling upon his weight cla im, not the underlying question of whether the verdict was in fact against the weight of the evidence. See Horne , 89 A.3d at 285. Ignoring this failing, our review of the record rev eals that the trial court did not abuse its discretion in deciding that the verdicts in this case were not against the weight of the evidence. At tr ial, Cornelison testified that he lived with Vetter, stayed at her apartment when she left for work, and had a key that she authorized him to purchase. N.T., 2/29/12, at 137- 40. Cornelison stated that he would occasionally s tay with his friend, BertJ-S67004-14

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Wissinger (“Wissinger”), on 12th Street, but slept at Vetter’s apartment “[n]inety-nine percent of the time.” Id . at 139. Cornelison also presented the testimony of his moth er, Linda Spangenberg (“Spangenberg”), and Wissinger in suppo rt of his testimony. Spangenberg testified that up until the date of the incident, she contacted Cornelison through Vetter’s cell phone and forwarde d mail to him at Vetter’s apartment “[b]ecause as far as [she] knew, that’s w here [he] was living.” Id . at 118. Spangenberg further testified that she pi cked up Cornelison’s belongings from Vetter’s apartment. Id . Cornelison never told her that he had personal belongings elsewhere. Id . at 121. Wissinger testified that Cornelison stayed at Vette r’s apartment most of the time but lived with him on 12th Street on th e other days. Id . at 130- 31. Wissinger also testified that Cornelison had d ishes, clothing, bedroom items, large containers that had his belongings in them, knives, and jewelry at his home. Id . at 130. In contrast, Vetter testified that only her name wa s on the lease of the apartment and that Cornelison lived with Wissinger on 12th Street. Id . at 37-38. Although Cornelison had personal belongings at her apartment and stayed over at the apartment three to four times a week, Vetter testified that Cornelison did not have a key to the apartment

. Id . at 38-39. Vetter would give Cornelison a key at times but he did not have his own key to enter when he wanted to because she “didn’t want hi m to have a key all theJ-S67004-14

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time” and did not want him in the apartment when sh e had not given him the key. Id . at 39-40. The Commonwealth also presented the testimony of Li tko, Vetter’s neighbor, who testified that she witnessed Cornelis on break down Vetter’s door on the night in question. Id . at 27. Litko testified that Cornelison knocked on her door and asked if he could use her p hone. Id . at 26. Litko stated that she had never seen Cornelison before th at day. Id . After Cornelison used the phone, Litko testified that Cor nelison ran through her yard, “[a]nd when he hit the curb he started at ful l gait, and he smashed his shoulder into [Vetter’s] door and broke the door do wn.” Id . at 27. Cornelison fell onto the steps on the inside of the apartment and slammed the door shut. Id . The jury heard the conflicting testimony and made i ts credibility determinations, apparently choosing to believe Vett er that Cornelison did not live at her apartment and was not permitted to be t here on the evening in question. As we are mindful of “our obligation to respect the fact finder’s credibility determinations and the weight it accord s the evidence,” we find no fault with the trial court’s conclusion that the verdict is so contrary to the evidence as to shock one's sense of justice. See Renna v. Schadt , 64 A.3d 658, 670 (Pa. Super. 2013). Finding no abuse of di scretion, Cornelison is not entitled to relief on his weight claim. Judgment of sentence affirmed.J-S67004-14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 11/17/2014