J-S83016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHAWN HERRING,

Appellant No. 118 WDA 2016

Appeal from the Judgment of Sentence November 10, 2015

In the Court of Common Pleas of Washington County

Criminal Division at No(s): CP-63-CR-0002672-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 23, 2016

Appellant, Shawn Herring, appeals from the judgment of sentence 

entered on November 10, 2015,1in the Washington County Court of 

Common Pleas. We affirm.

The relevant facts and procedural history of this matter were set forth 

by the trial court as follows:

On August 28, 2014, a two-count criminal complaint was 

filed against [Appellant] for criminal mischief (M-2) and 

conspiracy to commit criminal mischief - property damage (M-2). 

18 Pa.C.S.A. § 3304(a)(5); 18 Pa.C.S.A. § 903(a)(1). The 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.

1 On December 7, 2015, the trial court entered an amended sentencing 

order to correct a typographical error. In the original sentencing order, 

restitution was set at “$3,2066.78,” and the amended sentencing order 

corrected the error to reflect that restitution was set at “$3,266.78.” 
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affidavit of probable cause alleged that [Appellant] and two other 

persons approached Kristen Stein’s 1998 Toyota Camry and 

caused damage to it. The damage perpetrated consisted of 

scratching two key lines along the entire right side of the vehicle, 

removing both front windshield wipers, breaking two rear 

taillight lenses, breaking the driver’s side view mirror, and 

flattening both rear tires as well as the left front tire.

[Appellant] pled not guilty and requested a non-jury trial. 

The trial was held on August 11, 2015 before the undersigned. 

After hearing all the evidence, including viewing video clips, the 

trial court concluded that the prosecution proved its case [] 

beyond a reasonable doubt that [Appellant] committed the 

alleged crime and that he conspired with two others to do so. 

The trial court ordered that a pre-sentence investigation report 

be completed and set November 10, 2015 as the sentencing 

date. At that date, [Appellant] was sentenced to one year of 

probation for each charge, which was to run concurrently, and to 

pay $3,266.78 in restitution to Ms. Stein.

Trial Court Opinion, 12/18/15, at 1. On November 20, 2015, Appellant filed 

timely post-sentence motions that were denied by the trial court on 

December 18, 2015. This timely appeal followed.

On appeal, Appellant presents two issues for this Court’s 

consideration:

I. Did the trial court err by finding [Appellant] guilty of criminal 

mischief and conspiracy when the evidence presented at trial 

was insufficient to prove [Appellant] committed the alleged 

crimes beyond a reasonable doubt?

II. Did the trial court err by finding the weight of the evidence 

presented at trial supported the conviction of [Appellant]?

Appellant’s Brief at 7 (full capitalization omitted).

Our standard of review for claims challenging the sufficiency of the 

evidence is well-settled:
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The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying the above test, we 

may not weigh the evidence and substitute our judgment for the 

fact-finder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant’s guilt 

may be resolved by the fact-finder unless the evidence is so 

weak and inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every element 

of the crime beyond a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying the above test, 

the entire record must be evaluated and all evidence actually 

received must be considered. Finally, the trier of fact while 

passing upon the credibility of witnesses and the weight of the 

evidence produced, is free to believe all, part or none of the 

evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) 

(citation omitted).

In its opinion, the trial court addressed Appellant’s challenge to the 

sufficiency of the evidence as follows:

A person is guilty of criminal mischief if he or she 

“intentionally damages real or personal property of another.” 18 

Pa. C.S.A. § 3304(a)(5). A person is guilty of conspiring to 

commit a crime if he or she “agrees with such other person or 

persons that they or one or more of them will engage in conduct 

which constitutes such crime or an attempt or solicitation to 

commit such crime.” 18 Pa. C.S.A. § 903(a)(1). The question 

before this Court is whether the evidence and associated 

reasonable inferences, viewed in the light most favorable to the 

Commonwealth, established the elements of these crimes 

beyond a reasonable doubt. 

The evidence presented at trial established that Ms. Stein 

(hereinafter referred to as “Stein”) lived in the North Gate 

apartment complex in South Strabane at the time of the 
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incident. Stein testified that she parked her vehicle in the 

apartment complex lot during the day on August 11, 2014. On 

August 12, 2014, at approximately 1 p.m., Stein left her 

apartment to walk to her car at which time she noticed the 

aforementioned damage. She immediately called 911 to report 

the damage caused to her car. Soon thereafter, Officer Drew Hilk 

of the South Strabane Police Department arrived at the 

apartment complex to investigate. Stein identified the damage 

caused to her vehicle for Officer Hilk and during trial. Stein 

testified that she was certain none of said damage was present 

the day before.

When Officer Hilk interviewed Stein, he asked her if she 

could think of any suspects. She provided only [Appellant’s] 

name as a suspect and described [Appellant] to Officer Hilk as a 

“large individual.” The testimony at trial was that [Appellant] 

weighed over 400 pounds. In addition, Stein described 

[Appellant’s] car to Officer Hilk.

Officer Hilk secured video surveillance of the apartment 

complex parking lot for the relevant period of time. The 

surveillance video is black and white and does not provide closeup footage. The video does depict a very light colored sedan with 

a sun roof matching the description Stein provided to Officer Hilk 

of [Appellant’s] vehicle. Further corroborating the identification, 

Stein testified that she had seen [Appellant’s] car 20 times as of 

August 12, 2014. Moreover, the sedan was driven through the 

parking lot and parked at a far end with purpose. Three men got 

out of the car of which two men appeared to have a normal build 

or physique. One of the men, however, appeared in the video to 

have a very large physique; he unmistakably obese. All three 

men walk directly to Stein’s car, ignoring all the other vehicles. 

Upon arriving at Stein’s vehicle, the three men damage it and 

then swiftly return to the sedan and drive away. Viewing this 

uncontested evidence, the trial court found the actions of the 

men to be intentional—clearly, this was not a random act of 

vandalism.

During the trial, the court recognized the discrepancies in 

the testimony that [Appellant’s] counsel pointed to in his postsentencing motions—namely, the testimony concerning the exact 

nature of [Appellant’s] relationship to Stein. More specifically, 

Stein made statements to Officer Hilk at the time of the 

investigation about her romantic involvement with [Appellant] 
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that conflicted with her testimony during the trial. While the 

Court acknowledged these inconsistencies when delivering the 

verdict, the Court did find that the evidence established some 

kind of pre-existing relationship between [Appellant] and Stein. 

Whether the relationship was sexual in nature was not 

dispositive. The Court’s finding of guilt was determined by the 

fact of a relationship in conjunction with the surveillance video 

showing single-mindedness, a car matching Stein’s uncontested 

description of [Appellant’s] car, and a perpetrator whose 

distinctive physical size corresponded with that of [Appellant]. In 

reviewing this evidence now in the light most favorable to the 

Commonwealth, together with all reasonable inferences, this 

Court concludes that the trier of fact could have found that each 

element of criminal mischief and conspiracy to commit the same 

was established beyond a reasonable doubt. Stated differently, 

there was sufficient evidence under the combined circumstances 

to support [the] conviction[s].

Trial Court Opinion, 12/18/15, at 2-4.

We discern no error in the trial court’s conclusion. As the trial court 

noted, when Ms. Stein first spoke to Officer Hilk, she identified Appellant as 

a possible suspect in the investigation. The court reviewed a video recording 

that showed three men exit a car outside of Ms. Stein’s apartment, and 

these men proceeded to cause damage to Ms. Stein’s vehicle. This video 

revealed that one of the perpetrators matched Appellant’s distinctive 

physical characteristics. The video also showed that the car in which the 

perpetrators arrived was similar to the vehicle that Ms. Stein described as 

belonging to Appellant. Moreover, we conclude that the intricacies of the 

relationship between Ms. Stein and Appellant are immaterial. Thus, we 

agree with the trial court that the evidence was sufficient to prove that 
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Appellant committed the crimes of criminal mischief and conspiracy to 

commit criminal mischief beyond a reasonable doubt.

Next, Appellant presents a challenge to the weight of the evidence. At 

the outset, we note that “the weight of the evidence is a matter exclusively 

for the finder of fact, who is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses.” Commonwealth v. 

Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015). In Commonwealth v. 

Clay, 64 A.3d 1049 (Pa. 2013), our Supreme Court set forth the following 

standards to be employed in addressing challenges to the weight of the 

evidence:

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. Commonwealth v. Widmer, 560 

Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000); 

Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 

1189 (1994). A new trial should not be granted because of a 

mere conflict in the testimony or because the judge on the same 

facts would have arrived at a different conclusion. Widmer, 560 

A.2d at 319-20, 744 A.2d at 752. Rather, “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.’” Id. 

at 320, 744 A.2d at 752 (citation omitted). It has often been 

stated that “a new trial 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.” Brown, 538 Pa. 

at 435, 648 A.2d at 1189.

An appellate court’s standard of review when presented 

with a weight of the evidence claim is distinct from the standard 

of review applied by the trial court:
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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. Brown, 648 A.2d at 1189. Because the 

trial judge has had the opportunity to hear and see 

the evidence presented, an appellate court will give 

the gravest consideration to the findings and reasons 

advanced by the trial judge when reviewing a trial 

court’s determination that the verdict is against the 

weight of the evidence. Commonwealth v. 

Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). 

One of the least assailable reasons for granting or 

denying a new trial is the lower court’s conviction 

that the verdict was or was not against the weight of 

the evidence and that a new trial should be granted 

in the interest of justice.

Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis 

added).

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:

The 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 the 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 

pursued 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.

Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v. 

S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-

[11]85 (1993)).
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Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a 

new trial based on a weight of the evidence claim is the least assailable of its 

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

In the case at bar, the trial court, sitting as the finder of fact, chose to 

believe the evidence presented by the Commonwealth, as was its right. The 

trial court noted that Appellant’s argument on this issue is premised on the 

same contention that Appellant utilized in challenging the sufficiency of the 

evidence. Trial Court Opinion, 12/18/15, at 4. In its conclusion, the trial 

court found that there was nothing shocking about the verdict. Id. 

Based upon our review of the record, we agree with the trial court, 

which, as the fact-finder, was free to believe all, part, or none of the 

evidence against Appellant. Gonzalez, 109 A.3d at 723. The court weighed 

the testimonial evidence and the evidence from the surveillance video and 

found that Appellant perpetrated the crimes in question. This determination 

is not so contrary to the evidence as to shock one’s sense of justice, and this 

Court will not assume the role of fact-finder and reweigh the evidence. 

Accordingly, we conclude that the trial court did not abuse its discretion in 

refusing to grant relief on Appellant’s challenge to the weight of the 

evidence.

For the reasons set forth above, Appellant is entitled to no relief on 

either of the issues presented. Therefore, we affirm Appellant’s judgment of 

sentence.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016