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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. JULIAN ABRON Appellee No. 684 EDA 2016

Appeal from the Order February 5 , 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J. MEMORANDUM BY MOULTON, J.: FILED OCTOBER 30, 2017 The Commonwealth of Pennsylvania appeals from the February 5, 2016 order purporting to acquit Julian Abron of all charges upon which he had been convicted following a non

- jury trial. Because the trial court lac ked authority to acquit Abron after having entered a verdict of guilty that was supported by sufficient evidence, we vacate and remand for further proceedings. This case involved the alleged intimidation of an assault victim by Abron and others, including his co

- defendant, Mark Easley. The trial court set forth a detailed factual history, which we adopt and incorporate herein. See Opinion, 8/11/16, at 2

- 11 (“19 25(a) Op.”). On February 5, 2016, the trial court conducted a non

- jury trial. At the conclusion of the trial, after hearing argument from counsel for bothJ

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defendants and the Commonwealth, the trial court made the following statement on the record:

I don’ t think there’s enough for VUFA, so that’s out. However, based on the entirety of the evidence, there is enough for retaliation and the intimidation charges, charges three and four and one, which was conspiracy for those charges. [ 1 ] N.T., 2/5/16, at 127. After discussing sentencing and possible bail revocation, 2 the trial court excused the parties and called a brief recess. Id. at 129. Following the recess, 3 the trial court returned to the bench and stated:

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1 18 Pa.C.S. §§ 4952(a)(1), 4953(a), and 903(a), respectively. We note that while the tr ial court did not use the term “guilty” in its findings, all parties appear to agree that the trial court found Abron guilty of the aforementioned charges.

2 The docket entry for the verdicts indicates that after the court found Abron guilty, it then: (1) ordered a presentence investigation; (2) heard an oral motion from the Commonwealth to revoke bail, which it denied; (3) heard an oral motion from Abron to reconsider adjudication, which it granted; (4) found Abron not guilty on all charges; and (5) vacat ed Abron’s electronic monitoring and cancelled sentencing.

3 In its motion for reconsideration, the Commonwealth averred that, after denying the Commonwealth’s motion to revoke bail, the trial court ordered a “staggered release” so the victim, Maneia Sing leton and her Mother could leave before Abron. The Commonwealth claims that Singleton and her Mother asked to address the court before leaving, stating “how they felt they were mistreated by the Philadelphia Police Department and the Philadelphia District Attorney’s Office.” Cmwlth.’s Mt. to Reconsider Am. Verdict, 2/18/16, at 3. According to the Commonwealth, the trial court then called Abron back into the courtroom, called the attorneys to sidebar, and stated that it had reconsidered its verdict. Id. Based on the transcript of proceedings, we cannot determine whether the court’s discussion with (Footnote Continued Next Page)J

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- THE COURT: Step up Mr. Abron. The Court is re considering its decision in the matter of Julian Abron. The court has reasonable doubt as to the identification of this defendant alone because of the description given by the complaining witness in the grand jury investigation notes during at which time [sic] she said that he was light skinned. Clearly, he is not light skinned today nor was he in the picture or photo, nor was he ever light skinned. I can see that with my own eyes. Not guilty on this matter.
THE COMMONWEALTH: Please just note the Comm onwealth’s objection for the record.
THE COURT: Yes. Id. On February 18, 2016, the Commonwealth filed a motion to reconsider, which the trial court denied without a hearing on February 19, 2016. On March 2, 2016, the Commonwealth timely filed a notice o f appeal. The Commonwealth raises one issue on appeal: “Did the trial court err in arresting judgment and vacating the guilty verdict where the evidence was legally sufficient to prove intimidation of a witness, retaliation against a witness, and crimina l conspiracy?” Cmwlth.’s Br. at 2. The Commonwealth first argues that the trial court lacked the authority to reconsider and vacate Abron’s verdict sua sponte

. 4 The (Footnote Continued)

_______________________ Singleton and her mother occurred before or after the court announced that it had reconsidered its verdict.

4 Abron argues that the Commonwealth has waived th is argument because it failed to include it in its Pennsylvania Rule of Appellate Procedure 1925(b) statement. However, the trial court never ordered the Commonwealth to file a Rule 1925(b) statement. Because “[t]he requirements of Rule 1925(b) are not i nvoked in cases where there is no (Footnote Continued Next Page)J

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Commonwealth contends that “a trial court has no more authority over a verdict in a non

- jury trial than it does over a jury verdict” and, therefore, the trial court erred in vacating Abron’s convictions sua sponte . Cmwlth.’s Br. at 8

- 9. In addition, the Commonwealth asserts that, even if the trial court could address the sufficiency of the evidence sua sponte , the trial court erred because its decision was based on the weight, rather than the sufficiency, of the evidence. Finally, the Commonwealth argues that, in any event, the evidence was sufficient to sustain Abron’s conviction. Abron responds that the trial court’s decision was not sua sponte but instead was based on an oral motion. Abron further contends that “the trial court properly granted an ar rest of judgment because the identification evidence was insufficient to establish beyond a reasonable doubt that . . . Abron[] was one of the individuals involved in the . . . incident.” Abron’s Br. at 13. According to Abron, the trial court did not re

- evaluate “the testimony presented or alter[] its determination of witness credibility to arrive at a not guilty verdict,” but instead determined that the identification of Abron by the victim, Maneia Singleton, was insufficient to sustain the conviction. Id.

(Footnote Continued)

_______________________ trial court order directing an appellant to file a Rule 1925(b) statement[,]” we will not conduct a waiver analysis. Commonwealth v. Antidormi , 84 A.3d 736, 745 n.7 (Pa.Super. 2014); see also Commonwealth v. Thomas , 451 A .2d 470, 472 n.8 (Pa.Super. 1982) (“[T]he lower court must order a concise statement of [errors] complained of on appeal and an appellant must fail to comply with such directive before this Court can find waiver . . . .”).J

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Abron asserts that a trial judge may grant an arrest of judgment where the trial court determines that the evidence was insufficient. Preliminarily, we must attempt to determine the basis for the trial court’s decision. A trial court has the authority to consider sufficiency post verdict, even if it was the fact

- finder and even in the absence of a motion. See Commonwealth v. Stark , 584 A.2d 289, 291 (Pa. 1990). Once it enters a guilty verdict, however, it may not sua sponte reconsider the weight of t he evidence. 5 See Commonwealth v. Robinson , 33 A.3d 89, 94 (Pa.Super. 2011). Not surprisingly, Abron and the trial court characterize the court’s decision as an arrest of judgment based on insufficient evidence to sustain Abron’s convictions. The Common wealth, in contrast, points to language in the trial court’s opinion that appears to focus on weight and credibility. See Cmwlth.’s Br. at 12

- 13. Unfortunately, neither the transcript of proceedings nor the trial court’s Pennsylvania Rule of Appellate Pro cedure 1925(a) opinion makes clear whether the court’s decision was based on weight or sufficiency. The opinion concludes that “all reasonable inferences deduced from the evidence

were insufficient to establish all the elements of the offenses beyond a

re asonable doubt.” 1925(a) Op. at 15 (emphasis added). In contrast, the opinion also states that because “[i]t was within the exclusive province of

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5 This is not to say that Abron c ould not file a post

- verdict motion challenging the weight of the evidence.J

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the trial court as fact

- finder to resolve conflicts in the testimony and to believe all, part, or none of th e evidence,” the court “did not abuse its discretion in arresting the judgment and vacating the guilty verdict on the weight of the evidence .” 1925(a) Op. at 12 (emphasis added). The trial court focused on Singleton’s credibility, concluding that “there was insufficient evidence to satisfy a guilty verdict because [Singleton]’s testimony was largely inconclusive as she was unable to identify [Abron] and her memory was unreliable.” 6 Id. at 13. In addition, the trial court stated that the “police officer[ ’s] testimony was unreliable and inconsistent” and took issue with the show

- up identification of Abron. Id. at 15. Because the trial court was not clear about whether it was arresting judgment based on insufficiency or weight of the evidence, we are cons trained to examine each possibility in turn. We first examine whether the trial court could have properly arrested judgment based on insufficiency of the evidence. Our standard of review for a sufficiency of the evidence claim is as follows:

We must deter mine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence t o enable the trier of fact to find every element of the crime has been

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6 The standard of review set forth in the trial court’s opinion addresses standards for both sufficiency and weight of the evidence. See 1925(a) Op. at 11

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- established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. The evidence established at trial need not preclude every possibility of innocence and the fact

- f inder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re

- weigh the evidence and substitute our judgment for that of the fact

finder. The Commonwealth’s burden may be met by wholly circumstan tial evidence and any doubt about the defendant’s guilt is to be resolved by the fact[

- ]finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. Commonwealth v. Ro driguez , 141 A.3d 523, 525 (Pa.Super. 2016) (quoting Commonwealth v. Tarrach , 42 A.3d 342, 345 (Pa.Super. 2012)). A person may be convicted of intimidating a witness or victim if with the intent to or with the knowledge that his conduct will obstruct, impe de, impair, prevent or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to: (1) Refrain from informing or reporting to any law enforcement officer, prosecuting official or judge concerning an y information, document or thing relating to the commission of a crime. 18 Pa.C.S. § 4952(a)(1). Additionally, we note that

[a]ctual intimidation of a witness is not an essential element of the crime. The crime is committed if one, with the necessary mens rea, “ attempts ” to intimidate a witness or victim. . . . The trier of the facts, therefore, could find that appellant attempted to intimidate his accuser and that he did so intending or, at least, having knowledge that his conduct was likely to, impe de, impair or interfere with the administration of criminal justice. . . . The Commonwealth is not required to prove mens rea by direct evidence. Frequently, such evidence is not available. In such cases, the Commonwealth may rely on circumstantial evid ence.J

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Commonwealth v. Beasley , 138 A.3d 39, 48 (Pa.Super.) (quoting Commonwealth v. Collington , 615 A.2d 769, 770 (Pa. Super. 1992)) (emphasis in original), app. denied , 161 A.3d 791 (Pa. 2016). A person may be convicted of retaliation against a witness o r victim “if he harms another by any unlawful act or engages in a course of conduct or repeatedly commits acts which threaten another in retaliation for anything lawfully done in the capacity of witness, victim or a party in a civil matter.” 18 Pa.C.S. § 4953(a). A person may be convicted “of conspiracy with another person . . . to commit a crime if with the intent of promoting or facilitating its commission he . . . agrees with such other person . . . that they or one or more of them will engage in cond uct which constitutes such crime or an attempt or solicitation to commit such crime . . . .” 18 Pa.C.S. § 903. Thus, to sustain a conspiracy conviction, the Commonwealth must prove “(1) an intent to commit or aid in an unlawful act, (2) an agreement with a co - conspirator[,] and (3) an overt act in furtherance of the conspiracy.” Commonwealth v. Spotz , 756 A.2d 1139, 1162 (Pa. 2000). “Because it is difficult to prove an explicit or formal agreement to commit an unlawful act, such an act may be proved inf erentially by circumstantial evidence, i.e. , the relations, conduct or circumstances of the parties or overt acts on the part of the co

conspirators.” Id. Viewing the evidence in the light most favorable to the Commonwealth, we conclude that the evidence was sufficient to convictJ

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Abron of the aforementioned offenses. Singleton’s prior statements, first to police and then to the grand jury, were admitted as substantive evidence under Pennsylvania Rule of Evidence 803.1. In those statements, Singleton
stat ed that, after reporting an assault to the police, Abron and his co

defendant drove up to Singleton’s home

— Singleton remembered the color and license plate of the vehicle. Cmwlth.’s Reproduced Record at 57, 78. 7 Singleton stated that when they exited the vehicle, she saw that one of them had a gun, which he then placed in the trunk. Id. at 58

- 59, 78. Singleton also stated that both men admonished Singleton and her fiancé for “snitching.” Id. at 58, 78. After Singleton reported this incident to the pol ice, the men returned, again calling Singleton and her fiancé “snitches” and challenging her fiancé to a fight. Id. at 59

- 60, 78. Singleton also testified that one of the men brandished a gun, grabbing at the weapon while it was tucked into his waistband

. Id. at 61, 79. Later that day when police stopped the vehicle, Singleton identified Abron, his co

- defendant, and the vehicle. Id. at 63, 79. Because these identifications confirmed Abron as one of the men who intimidated and threatened her and her fi ancé, we conclude that, despite the trial court’s post

- verdict decision to discredit Singleton’s earlier statements, the evidence was sufficient to convict Abron.

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7 The police stateme nt and grand jury testimony were not submitted as part of the certified record, but were admitted as exhibits at trial. Accordingly, we cite the Commonwealth’s reproduced record.J

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See Commonwealth v. Orr , 38 A.3d 868, 874

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- court identification, along with other circumstantial evidence, was sufficient to convict appellant). The possibility remains, however, that the trial court’s ruling was based on weight, not sufficiency. Despite citing case law relating to sufficiency , the trial court appears to have based its decision largely on its post

- verdict assessment of Singleton’s credibility. An issue “[d]irected entirely to the credibility of the Commonwealth’s chief witness . . . challenges the weight, not the sufficiency, of the evidence.” Commonwealth v. Palo , 24 A.3d 1050, 1054 (Pa.Super. 2011). However, a trial court lacks the authority to vacate a guilty verdict based on the weight of the evidence in the absence of a defense motion. See Commonwealth v. Robinson , 33 A .3d 89, 94 (Pa.Super. 2011). Our decision in Robinson is instructive. There, following a non

- jury trial, the trial court found Robinson guilty of theft by unlawful taking, sentenced Robinson to 18 months’ probation, but deferred restitution to allow “th e Commonwealth to obtain accurate figures on the value of the stolen items.” Id. at 91. When the trial court convened a restitution hearing, “instead of determining restitution, the trial court sua sponte vacated [Robinson]’s judgment of sentence and ent ered a verdict of not guilty. . . . because it had failed to give due consideration to the weight of [Robinson]’s character evidence.” Id. (quotation omitted).J

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We reversed, reinstated the verdict and judgment of sentence, and remanded for a restitution de termination. After determining that the trial court acted sua sponte because no oral motion for an arrest of judgment appeared of record, we concluded that the trial court lacked the authority to modify the verdict because

[a] post

- verdict court may not r eweigh the evidence and change its mind as the trial court did herein. Although a post

- verdict judge may question a verdict, his discretionary powers are limited to a determination of whether the evidence was sufficient to uphold the original verdict, and he may not alter the original verdict and substitute a new one. The trial court’s verdict must be accorded the same legal effect as a jury verdict. Post

- trial, the court cannot re

- deliberate as it is no longer the fact[

- ]finder. Just as jurors are not permitted to testify as to the mental processes that led to their verdict, so is the trial court precluded from testifying as to its flawed thought process as a fact[

- ]finder. Id. at 94 (internal citations omitted); see Commonwealth v. Parker , 451 A.2d 767 , 769

- 70 (Pa.Super. 1982) (concluding that trial court exceeded its authority in reconsidering facts and sua sponte changing verdict to not guilty). Unfortunately, here again, the record is unclear. Both Abron and the trial court contend that Abron made a n oral motion for reconsideration of the evidence. The Commonwealth, rather than affirmatively asserting that no such motion was made, instead contends that no such motion appears in the record. Based on our review, the only reference in the record to su ch a motion is the docket entry for the verdicts in this case.J

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Even if Abron made the motion and the trial court granted the motion based on the weight of the evidence, the trial court erred in granting Abron a discharge. It is well settled that where a trial court concludes that the verdict was against the weight of the evidence, the proper relief is a new trial. See Commonwealth v. Brown , 648 A.2d 1177, 1189 (Pa. 1994) (“A trial court will grant a new trial when it believes the verdict was against the weight of the evidence and resulted in a miscarriage of justice.”) (quotation omitted). Accordingly, under these circumstances, if the trial court found that the verdict was against the weight of the evidence, the proper remedy was to grant Abron a new t rial. If, however, Abron did not make the motion, then trial court sua sponte reweighed the evidence and exceeded its authority because absent a post

- verdict motion challenging the weight of the evidence, “[a] post

- verdict court may not reweigh the evidenc e.” Robinson , 33 A.3d at 94. Because we cannot determine whether a motion for reconsideration was properly before the court, we remand this matter for further proceedings. If the trial court determines that Abron moved the trial court for reconsideration because the verdict was against the weight of the evidence, then the trial court may reweigh the evidence and determine whether Abron should receive a new trial. 8 However, if the trial court

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8 Given the state of the record, and the failure of the parties to address this issue on appeal, we do not address at this time whether a (Footnote Continued Next Page)J

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determines that Abron did not move for reconside ration, then it improperly

re - weighed the evidence following a finding of guilt because it lacked the authority to sua sponte change the verdicts. Under those circumstances, the trial court’s order changing the verdicts was a legal nullity, see Commonweal th v. Stark , 584 A.2d 289, 291 (Pa. 1990), and the trial court should reinstate the original verdicts and schedule sentencing. Order vacated. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/30/201 7

(Footnote Continued)

_______________________ determination that the verdicts were against the weight of the evidence would be an abuse of discretion. See Commonwealth v. Widmer , 744 A.2d 745, 751

- 52 (Pa. 2000).Circulated 10/06/2017 08:11 AM