J-S35012-22

2023 PA Super 105

COMMONWEALTH OF PENNSYLVANIA

 Appellant

 

 v.

MICHAEL T. MARTIN, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 791 MDA 2022

Appeal from the Order Entered May 13, 2022

In the Court of Common Pleas of Franklin County Criminal Division at 

No(s): CP-28-CR-0002065-2019

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: JUNE 12, 2023

The Commonwealth appeals from the trial court’s May 13, 2022 order

granting the post-sentence motions filed by Appellee, Michael T. Martin, Jr; 

vacating the jury’s August 31, 2021 verdict finding Appellee guilty of 

involuntary deviate sexual intercourse with a child (“IDSI”) and indecent 

assault,

1 with prejudice; and discharging him from custody. Following our 

careful review, we reverse the trial court’s order granting Appellee’s postsentence motions and remand this case to the trial court with instructions to 

enter an order reinstating the jury’s guilty verdict and re-committing Appellee 

to serve the balance of his sentence. 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3123(b) and 3126(a)(7), respectively.
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The trial court summarized the relevant facts and procedural history of 

this case as follows:

Sometime in 2019, eleven-year-old J.K. indicated to 

her mother that [Appellee, her uncle,] had behaved 

inappropriately with her sexually. After an interview 

at Over the Rainbow Children’s Advocacy Center, 

which lasted just under an hour, J.K. did not disclose 

any abuse. However, on November 16, 2019, in a 

thirty-minute interview with the same interviewer, 

J.K. disclosed several incidents of abuse. As a result 

of her second interview, on November 25, 2019,

[Appellee] was charged with one count of [IDSI], a

felony of the first degree, and Indecent Assault of a 

Person Less than 13 Years of Age, a felony of the third 

degree. The offense date listed for each of these 

offenses is September 11, 2013, although the 

Commonwealth acknowledges repeatedly, as 

discussed below, that this date was set arbitrarily.

After numerous continuances due to the COVID-19 

pandemic, [a jury] trial on these charges commenced 

on August 31, 2021, and [Appellee] was convicted. 

[Appellee] was sentenced on December 15, 2021, to 

an aggregate sentence of 75 to 150 months in a State 

Correctional Institution. That same day, [Appellee]

filed three [post-sentence] motions. The first was a 

Motion for Bail Pending Appeal, which was ultimately 

denied following a hearing. The second and third, filed

together as Post Sentence-Motions Filed on Behalf of 

[Appellee], included the instant Motion Alleging 

Verdict was Against the Weight of the Evidence and 

Motion Alleging Verdict was Against the Sufficiency of 

the Evidence. Oral argument on the instant Motions 

occurred on February 2, 2022, after which we Ordered 

the parties to submit briefs. [Appellee] timely

submitted his brief on February 11, 2022. The 

Commonwealth untimely submitted their brief on

March 11, 2022, nine (9) days after their deadline set 

by Order of Court dated February 2, 2022.

On April 6, 2022, [Appellee] filed a Motion Requesting 

Order of Court Granting Court Extension of Time, 
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requesting that we grant ourselves an additional thirty 

(30) days to render a decision for good cause[....] We 

found good cause to have been shown because we had 

only twenty-four (24) weekdays to render a decision 

following the filing of the Commonwealth’s brief, 

which was not sufficient time due to the nature of the

Court’s calendar. Therefore, we granted the Motion, 

extending our deadline to May 14, 2022.

Trial court opinion, 5/13/22 at 2-3 (footnotes, internal citations, and emphasis

omitted).

On May 13, 2022, the trial court entered an opinion and order granting 

Appellee’s post-sentence motions. Within this opinion and order, the trial 

court found the weight and sufficiency of the evidence did not support 

Appellee’s convictions for IDSI and indecent assault. Therefore, the trial court 

vacated the jury’s verdict with prejudice. See id. 

The Commonwealth filed a timely notice of appeal on May 20, 2022. On 

May 25, 2022, the trial court ordered the Commonwealth to file a concise

statement of errors complained of on appeal, in accordance with Pa.R.A.P. 

1925(b). The Commonwealth filed its timely Rule 1925(b) statement on June 

13, 2022. On June 15, 2022, the trial court filed a Rule 1925(a) opinion, 

incorporating the analysis in the opinion authored in support of its May 13, 

2022 order granting Appellee’s post-sentence motions.

Thereafter, on July 21, 2022, Appellee filed a motion seeking to either 

quash the Commonwealth’s appeal or find the issues waived due to the 

Commonwealth’s purported failure to comply with Rule 1925(b). On August 
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2, 2022, the Commonwealth filed a response. On September 29, 2022, 

Appellee’s motion to quash was denied by per curiam order of this Court.

On appeal, the Commonwealth raises the following issues for our 

review:

1. Whether the trial court erred when it granted 

[Appellee’s] post-sentence motions on the basis 

that the Commonwealth failed to present 

sufficient evidence at trial to warrant the jury’s 

verdict of guilty to one count each of [IDSI] and 

indecent assault of a person less than 13 years 

of age?

2. Whether the trial court erred when it granted 

[Appellee’s] post-sentence motions on the basis 

that the jury’s verdict was against the weight of 

the evidence?

Commonwealth’s Brief at 4 (extraneous capitalization omitted).

Prior to addressing the merits of the Commonwealth’s claims, we must 

first address Appellee’s contention that the May 13, 2022 order is 

unappealable because it risks subjecting him to retrial in violation of double 

jeopardy principles. Appellee’s brief at 7-9.

It is well settled that “the Double Jeopardy Clause bars retrial following 

a court-decreed acquittal, even if the acquittal is based upon an egregiously 

erroneous foundation.” Evans v. Michigan, 568 U.S. 313, 318 (2013)

(citation and internal quotation marks omitted). The same is not true when a 

trial court grants a motion for discharge after the jury has convicted. The 

difference is the latter scenario does not involve an acquittal, and thus no 

retrial will occur. Thus, a ruling in favor of the Commonwealth on appeal 
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merely restores the jury’s verdict. See id. at 330, n.9 (stating, “[i]f a court 

grants a motion to acquit after the jury has convicted, there is no double 

jeopardy barrier to an appeal by the government from the court’s acquittal, 

because reversal would result in reinstatement of the jury verdict of guilt, not 

a new trial.”). This Court has recognized that “[t]he law in Pennsylvania is 

consistent with the federal decisions.” Commonwealth v. Feathers, 660 

A.2d 90, 94 (Pa.Super. 1995) (en banc), affirmed, 683 A.2d 289 (Pa. 1996).

Appellee’s argument that the May 13, 2022 order is not appealable is 

confusing; the bulk of his argument discusses the “critical distinction between 

challenges to the weight of the evidence and the sufficiency of the evidence.” 

Appellee’s Brief at 7. Appellee quotes caselaw holding that claims “challenging 

the sufficiency of the evidence, if granted, would preclude retrial under the 

double jeopardy provisions of the Fifth Amendment to the United States 

Constitution[.]” Id. at 7-8; Commonwealth v. Widmer, 744 A.2d 745, 751 

(Pa. 2000). Appellee misapprehends the relevance of these observations. The 

quoted portion of Widmer merely discusses what happens if an appellate 

court determines and/or agrees with a trial court that the evidence was 

insufficient to convict. In that case, retrial is barred. But here the question 

is simply whether the trial court was correct that the jury’s verdict is 

unsupported by sufficient evidence. Because Appellee was not acquitted, the 

order is appealable. We now turn to the Commonwealth’s claims on appeal, 

which can be divided into three distinct subsections.
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I.

The Commonwealth first argues that in assessing the sufficiency of the 

evidence, the trial court improperly engaged in a sua sponte examination of 

the legal issues discussed in Commonwealth v. Devlin, 333 A.2d 888 (Pa. 

1975) and its progeny. Commonwealth’s brief at 15. The Commonwealth 

avers that Appellee’s post-sentence motions did not in any way challenge that 

aspect of the Commonwealth’s case. Id. 

In the instant matter, the trial court’s sufficiency analysis focused 

primarily on three cases: Devlin, supra; Commonwealth v. Groff, 548 

A.2d 1237 (Pa.Super. 1988); and Commonwealth v. Jette, 818 A.2d 533 

(Pa.Super. 2003), appeal denied, 833 A.2d 141 (Pa. 2003). Devlin involved 

a victim who “had the mental ability of a first or second grade child and the 

emotional stability of an even younger child.” Devlin, 333 A.2d at 889. In 

Devlin, the victim stated that Devlin had sexually assaulted him on one 

occasion but could not place the date. Other evidence suggested that if the 

act occurred it would have been over a fourteen-month period. The Devlin

court held that Devlin’s due process rights were violated and ordered 

discharge. 

Groff involved a seven-year-old child testifying to multiple sexual 

crimes that all occurred “on only one occasion.” Groff, 548 A.2d at 1239. 

Applying Devlin, the Groff Court held that the Commonwealth “should ... 

come forward with any evidence which indicates when the alleged crime is 
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most likely to have taken place.” Id. at 1241. The Groff Court further 

concluded that Groff’s due process rights were not violated because the 

Commonwealth presented other evidence narrowing the timeframe down to a

three-month period. 

Finally, in Jette, the appellant was convicted of, inter alia, one count 

of IDSI. The victim, who was eight-years old at the time of the incidents, 

testified to a continuing course of sexual abuse, detailing “four of the worst 

incidents, [and] describing generally when they occurred by month and 

generally what time of the year.” Jette, 818 A.2d at 535. The Jette Court 

affirmed the convictions, concluding that the Commonwealth “must be

afforded broad latitude when attempting to fix the date of offenses which

involve a continuous course of criminal conduct.” Id., quoting Groff, 548

A.2d at 1242.

Here, the trial court found that “the Commonwealth failed to meet its 

burden to prove a continuing course of conduct in a case involving the abuse 

of a young child pursuant to [Jette].” Trial court opinion, 5/13/22 at 1. 

Alternatively, “even if the Commonwealth had proven a continuing course of 

conduct,” the trial court concluded that the Commonwealth was not entitled 

to “‘the broad leeway’ afforded to them in setting the approximate time and 

place[.]” Id. Finally, “even if the Commonwealth had proceeded at trial under 

a theory pursuant to [Groff],” the trial court determined that the 
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Commonwealth failed to meet its burden to provide corroborating evidence. 

Id. 

Following our careful review, we agree with the Commonwealth’s 

contention that the trial court erred by engaging in a sua sponte examination 

of legal issues that were not raised by Appellee. We begin our analysis of this 

issue by quoting Appellee’s post-sentence motion for relief:

6. [Appellee] alleges that the verdict was against 

the sufficiency of the evidence.

7. The law related to said claim is as follows:

a) It is appropriate for the trial court to 

determine if the evidence presented at trial 

was sufficient to support the verdict. 

Commonwealth v. Martin, [101 A. 3d 706 

(Pa. 2019)].

b) The court must review the evidence in the

aggregate in order to determine the 

propriety of the Defendant's motion. In 

Interest of J.B., [189 A.3d 390 (Pa. 

2013)].

Post-Sentence Motions, 12/15/21, at unnumbered 2-3 (citation formatting 

amended).

Appellee’s motion then cited a series of facts in paragraph eight, all of 

which may fairly be summarized as attacking the plausibility of J.K.’s 

testimony. The motion concluded:

9. Applying the law and facts, as set forth above, 

warrant[s] relief for [Appellee]. It is clearly 

evident that the evidence against the defendant 

was “tenuous,” “vague,” and “uncertain[,]” 

Commonwealth v. Talbert, [129 A.3d 536 
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(Pa.Super. 2015)], and [the verdict] was so 

contrary to the evidence as to sho[ck] one’s 

sense of justice. Commonwealth v. Morales,

[91 A.2d 80 (Pa. 2014)]. It is imperative that 

the [c]ourt enter a directed verdict or one of 

aquital [sic] so that right may be given another 

opportunity to prevail. Commonwealth v. 

Antidormi, [84 A.3d 736 (Pa.Super. 2014)]. 

To fail to do such would be to deny justice. 

Commonwealth v. Green, [204 A.3d 469 

(Pa.Super. 2019)]; Commonwealth v. 

Williams, [176 A.3d 298 (Pa.Super. 2017)]; 

Commonwealth v. Miller, [172 A.3d 632

(Pa.Super. 2017)].

Post-Sentence Motions, 12/15/21, at unnumbered 6 (citation formatting 

amended).

While styled as a sufficiency claim, both the facts cited in support of 

Appellee’s claim and the law in support largely attack the weight of the 

evidence. An argument that goes purely to weight, even if styled as 

sufficiency, necessarily fails. See Commonwealth v. Small, 741 A.2d 666, 

672 (Pa. 1999) (stating, “[a]lthough [the] appellant phrases this as a 

sufficiency argument, the challenge goes to the weight of the evidence. 

Accordingly, [the] appellant’s challenge to the sufficiency of the evidence must 

fail.” (citation omitted)), cert. denied, 531 U.S. 829 (2000). That Appellee’s 

complaints went to the weight is evident from the citations in the ninth 

paragraph of his post-sentence motions. The complete sentence Appellee 

cited from Talbert states, “[i]n order for a defendant to prevail on a challenge 

to the weight of the evidence, ‘the evidence must be so tenuous, vague and 

uncertain that the verdict shocks the conscience of the court.’” Talbert, 129 
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A.3d at 546 (emphasis added). Similarly, the Antidormi citation discusses 

the relief applicable to a successful weight challenge, a retrial, whereas the 

remedy for a successful challenge on sufficiency grounds is discharge.

Even though Appellee raised, at best, only a generic sufficiency of

evidence claim without reference to any element(s) of the crime, the trial

court’s analysis had almost nothing to do with whether the evidence would

enable a rational fact-finder to convict. The “Devlin claim” explored by the

trial court does have a connection to a general sufficiency of the evidence

challenge in that both are grounded in due process. However, their

commonality ends there, as Devlin is about the fundamental right to present

a defense.

The United States Supreme Court held in Jackson v. Virginia, 443 U.S.

307 (1979), that the Due Process Clause as incorporated by the Fourteenth

Amendment requires that all convictions be supported by “sufficient proof —

defined as evidence necessary to convince a trier of fact beyond a reasonable

doubt of the existence of every element of the offense.” Id. at 316. We follow

that approach, as stated in Commonwealth v. Brown, 52 A.3d 1139 (Pa.

2012):

First, our standard of review, like the Jackson

standard, recognizes the proper regard an appellate 

court must give to the fact-finder’s evaluation of all of 

the evidence received at trial and, therefore, requires 

scrutiny of the totality of that evidence in the light 

most favorable to the Commonwealth, as verdict 

winner, and to draw all reasonable inferences in favor 

of the Commonwealth. Further, our Court’s 
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determination of the ultimate question of evidentiary 

sufficiency parallels the central inquiry under the 

Jackson standard, namely, whether any rational trier 

of fact could have found the essential elements of the 

crime beyond a reasonable doubt.

Id. at 1164 (citations, internal quotation marks, and footnote omitted).

The Jackson decision protects due process in a particular way: it

operates as a check on the quality of the government’s evidence in proving

the crimes. Separately, due process requires that the Commonwealth give

fair notice in the charging instrument. “In criminal ... matters, the United

States Supreme Court has discerned a due process requirement that alleged

misconduct must be identified with particularity in the essential notice

conferred.” In re R.M., 790 A.2d 300, 305 (Pa. 2002). The criminal

information “sets the stage for trial and what the Commonwealth intends to

prove.” Commonwealth v. King, 234 A.3d 549, 563 (Pa. 2020). This

implicates basic due process protections. “No principle of procedural due

process is more clearly established than that notice of the specific charge, and

a chance to be heard in a trial of the issues raised by that charge, if desired,

are among the constitutional rights of every accused in a criminal proceeding

in all courts, state or federal.” Cole v. Arkansas, 333 U.S. 196, 201 (1948). 

These due process protections are linked to the due process protections

encompassed by a sufficiency-of-the-evidence claim. The charging document

puts the defendant on notice of what the Commonwealth intends to prove,

and, in turn, the evidence presented at trial must be of sufficient quality to
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enable a rational fact-finder to conclude that the Commonwealth has proved

the crimes specified within the information beyond a reasonable doubt.

The trial court addressed the fact that the criminal information

encompassed a nine-month period of time and opined that this “shifted the

burden” to the defense. “It is ... beyond cavil that it is the Commonwealth’s

burden to prove guilt, rather than the defendant’s duty to establish

innocence.” Commonwealth v. Kennedy, 453 A.2d 927, 929 n.2 (Pa.

1982). The Devlin Court recognized that, under the circumstances of a

particular case, a defendant’s due process right to present a defense may be

violated, but that does not shift the burden to the defendant. Devlin, 333

A.2d at 891 (stating, “[t]he State Constitution is violated where the defendant 

is substantially denied an opportunity to present a defense.”) (citation 

omitted); see also Holmes v. South Carolina, 547 U.S. 319, 324 (2006) 

(stating, “[w]hether rooted directly in the Due Process Clause of the 

Fourteenth Amendment or in the Compulsory Process or Confrontation 

Clauses of the Sixth Amendment, the Constitution guarantees criminal 

defendants ‘a meaningful opportunity to present a complete defense.’”) 

(citation omitted). The trial court’s belief that the Commonwealth “shifted 

tactics” midtrial is more accurately described as a potential due process 

violation relating to the validity of “variances” between the information and 

the evidence presented at trial. See, e.g., Berger v. United States, 295 

U.S. 78, 82 (1935) (stating, “[t]he true inquiry ... is not whether there has 
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been a variance in proof, but whether there has been such a variance as to 

‘affect the substantial rights’ of the accused.”).

Instantly, we agree with the Commonwealth that the issues raised by 

Appellee in his post-sentence motion cannot be interpreted as a claim that he 

was denied an opportunity to present a defense. Moreover, our assessment 

that the legal theory explored in Devlin and its progeny is a distinct due 

process claim is corroborated by the fact those cases suggested that a 

defendant must preserve and raise that specific issue. The Devlin opinion 

makes clear that the appellant therein explicitly cited the inability to raise a 

defense, not that the evidence was insufficient to convict: “At the close of the 

Commonwealth’s case, the defense demurred to the prosecution’s evidence 

on the ground that the Commonwealth had not fixed the date of the crime 

with sufficient particularity, and thus the charge was impossible to defend.” 

Devlin, 333 A.2d at 890. 

Likewise, in Jette, the appellant therein clearly raised that specific 

theory: “Jette does not argue that the Commonwealth failed to prove any 

element of the crimes of which he was convicted. Instead, [the a]ppellant

argues that the evidence was insufficient to support his conviction because

the victim’s testimony was not sufficiently specific regarding the dates of the

incidents of abuse.” Jette, 818 A.2d at 534. It also bears noting that the

Devlin Court emphasized that the due process inquiry must be analyzed with

reference to the specific facts of the case. Devlin, 333 A.2d at 892 (stating, 
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“[h]ere, as elsewhere, ‘[t]he pattern of due process is picked out in the facts 

and circumstances of each case.’” (citation omitted)). The Commonwealth’s 

contention that the trial court exceeded its authority thus has substantial 

force, as the trial court determined sua sponte that Appellee’s due process 

rights were violated under the facts of the case without the benefit of 

adversarial positions by the parties.

 The trial court attempted to answer whether the convictions for two 

counts could stand, accepting that J.K.’s testimony was sufficient to meet the 

elements of the charged crimes for a subset of the entire timeframe charged. 

We need only determine that Appellee did not make that claim. Instead, he 

claimed that J.K. was not credible in total. Thus, whether a “variance” was 

justifiable under these circumstances or whether Appellee’s ability to offer a 

defense was hampered were issues not raised by Appellee. Accordingly, we 

agree with the Commonwealth’s first argument that the trial court improperly 

addressed issues that were not raised in Appellee’s post-sentence motions.

II.

The Commonwealth next contends that the trial court erred in granting 

Appellee’s post-sentence motions on the basis that the Commonwealth failed 

to present sufficient evidence to support Appellee’s convictions for IDSI and 

indecent assault. Commonwealth’s brief at 12, 25.

In reviewing the sufficiency of the evidence, we must 

determine whether the evidence admitted at trial and 

all reasonable inferences drawn therefrom, viewed in 

the light most favorable to the Commonwealth as 
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verdict winner, is sufficient to prove every element of 

the offense beyond a reasonable doubt. As an 

appellate court, we may not re-weigh the evidence 

and substitute our judgment for that of the factfinder. Any question of doubt is for 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. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations 

omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).

A person will be found guilty of IDSI “when the person engages in 

deviate sexual intercourse with a complainant who is less than 13 years of

age.” 18 Pa.C.S.A. § 3123(b). “Deviate sexual intercourse” is defined as

“[s]exual intercourse per os or per anus.... The term also includes penetration,

however slight, of the genitals or anus of another person with a foreign object

for any purpose other than good faith medical, hygienic or law enforcement

procedures.” 18 Pa.C.S.A. § 3101. 

Additionally, “[a] person is guilty of indecent assault if the person has 

indecent contact with the complainant ... for the purpose of arousing sexual 

desire in the person or the complainant and ... the complainant is less than 13 

years of age[.]” 18 Pa.C.S.A. § 3126(a)(7). Indecent contact is defined as 

“[a]ny touching of the sexual or other intimate parts of the person for the

purpose of arousing or gratifying sexual desire, in any person.” 18 Pa.C.S.A.

§ 3101.

Viewing the evidence in the light most favorable to the Commonwealth, 

the verdict winner, we find there was ample evidence to sustain Appellee’s
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convictions for IDSI and indecent assault of a person less than thirteen years 

of age. At trial, the Commonwealth called three witnesses: J.K.; J.K.’s

mother, E.A.; and Detective David Rush. The record reflects that J.K., who 

was fifteen-years old at the time of trial, testified that Appellee would make 

her perform oral sex on him, “[u]sually in the computer room.” Notes of 

testimony, 8/31/21 at 72-75. J.K. testified that Appellee began sexually 

abusing her “a couple days into it in the first week” after she and her family 

moved into his home during the 2013 school year. Id. J.K. was between 

seven and eight-years old when these incidents took place. Id. at 25, 91. 

J.K. further testified that no one else was present in the room when these 

incidents took place, but the other residents of the household would 

“[s]ometimes ... be upstairs and sometimes they would be in the outside of 

the house in the back yard.” Id. at 73, 75. J.K. also stated that the incidents 

“would usually be in the daytime.” Id. at 76. 

On cross-examination, J.K. agreed that in a videotaped statement she 

said that the abuse happened every day, but clarified that “[i]t happened 

every other day because sometimes it would be like breaks.” Id. at 114. J.K. 

testified that the abuse continued until she “said ‘no’ the one time and then 

we moved out shortly after.” Id. at 74. J.K. further testified that she disclosed 

the abuse to her two sisters a few years after leaving Appellee’s residence. 

Id. at 123. J.K. and her sisters then told E.A., who subsequently contacted 

the authorities and an investigation commenced. Id. at 81.
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This Court has long recognized that the testimony of the complainant 

standing alone is sufficient to convict. “[A] solitary witness’s testimony may

establish every element of a crime, assuming that it speaks to each element, 

directly and/or by rational inference.” Commonwealth v. Johnson, 180 

A.3d 474, 479 (Pa.Super. 2018) (emphasis in original), appeal denied, 205 

A.3d 315 (Pa. 2019). Here, the record reflects that J.K.’s testimony that 

Appellee’s genitals made contact with her mouth is sufficient to meet the 

elements of IDSI. See, e.g., Commonwealth v. Wilson, 825 A.2d 710, 714 

(Pa.Super. 2003) (stating, “[b]ecause there was oral contact with the 

[a]ppellant’s genitalia and the victim’s mouth, we find the evidence is 

sufficient to establish penetration however slight.”). Likewise, the same

testimony meets the definition of indecent assault under Section 3126(a)(7), 

as it was undisputed that J.K. was under 13 at the time of these crimes. 

Accordingly, J.K.’s testimony that she and Appellee had oral sex on multiple 

occasions, if believed by the jury, was sufficient to establish both crimes.

The trial court concluded that J.K.’s testimony presented a “conundrum”

because she stated, when confronted with a prior statement, that the abuse 

occurred every day, that it occurred every other day. Trial court opinion, 

5/13/22 at 23-26. The trial court determined that this was extremely unlikely 

when measured against Appellee’s stipulated work records. Id. The core 

problem with the trial court’s analysis is that it appeared to consider the jury’s 

ability to weigh evidence as constituting an all-or-nothing proposition. The 
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“conundrum” presented by J.K.’s testimony that the abuse occurred every 

other day and the stipulation to Appellee’s work records is resolvable by 

concluding that a rational fact-finder could reject parts of J.K.’s testimony 

while accepting others. The jury could credit J.K.’s testimony that Appellee 

serially abused her, but not at the frequency claimed. The jury was not 

required to fully credit J.K.’s testimony in all respects for the conviction to be 

valid. The jury could have, for example, rationally concluded that J.K. was so 

traumatized by multiple incidents of abuse that she recalled it happening more 

often than it did.

The jury was not required to fully credit that aspect of J.K.’s testimony 

to uphold this conviction. A rational fact-finder could conclude that Appellee 

repeatedly abused J.K. while simultaneously concluding that it did not occur 

as often as J.K. stated.

The United States Supreme Court has held that “[s]ufficiency review 

essentially addresses whether the government’s case was so lacking that it 

should not have even been submitted to the jury.” Musacchio v. United 

States, 577 U.S. 237, 243 (2016) (citation and internal quotation marks 

omitted). If a jury “was convinced, ... the only question under Jackson is 

whether that finding was so insupportable as to fall below the threshold of 

bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656 (2012). We 

conclude that it does not in the case sub judice, and therefore reverse the 
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trial court’s order discharging Appellee on the basis there was insufficient 

evidence to sustain the jury’s verdict.

III.

In its final claim, the Commonwealth argues that the trial court abused 

its discretion in granting Appellee’s post-sentence motion on the basis that 

the jury’s verdict was not supported by the weight of the evidence. 

Commonwealth’s brief at 30. The Commonwealth contends that the trial 

court’s analysis indicates that it improperly attempted to function as the 

thirteenth juror in this case by disregarding the jury’s judgment and 

substituting its own for that of the fact-finder. Id. at 32. For the following 

reasons, we agree.

This Court has recognized that “[a]n allegation that the verdict is against 

the weight of the evidence is addressed to the discretion of the trial court.” 

Commonwealth v. Galvin, 985 A.2d 783, 793 (Pa. 2009) (citation omitted), 

cert. denied, 559 U.S. 1051 (2010). 

[W]here the trial court has ruled on the weight claim 

below, an appellate court’s role is not to consider the 

underlying question of whether the verdict is against 

the weight of the evidence. Rather, appellate review 

is limited to whether the trial court palpably abused 

its discretion in ruling on the weight claim.

Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation 

omitted). 

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 
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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. 

. . . .

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]he 

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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and 

emphasis omitted).

Upon review, we disagree with the trial court’s assessment that this 

matter was one of the exceedingly rare cases in which a jury’s verdict should 

be vacated on weight-of-the-evidence grounds. As discussed, our Supreme 

Court has recognized that “[o]ne 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....” Id. (citation omitted). “[A]

true weight of the evidence challenge concedes that sufficient evidence exists 
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to sustain the verdict but questions which evidence is to be believed.” 

Commonwealth v. Miller, 172 A.3d 632, 643 (Pa.Super. 2017) (citation 

omitted), appeal denied, 183 A.3d 970 (Pa. 2018). The primary focus of 

such a challenge is whether “the evidence was so one-sided or so weighted in 

favor of acquittal that a guilty verdict shocks one’s sense of justice.” 

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citation omitted), 

cert. denied, 572 U.S. 1048 (2014).

Here, the jury heard testimony from multiple Commonwealth witnesses 

that Appellee sexually abused J.K. The jury clearly found the testimony and 

evidence presented at trial credible and elected not to believe Appellee’s 

version of the events. The trial court’s opinion vigorously discusses alternative 

theories to explain J.K.’s inconsistent testimony, in an attempt to explain why 

it believes the verdict in this matter was a “shock to the conscience.” See

trial court opinion, 5/13/22, at 35, 38-44. In doing so, we find that the trial 

court plainly exceeded the limits of judicial discretion and invaded the 

exclusive domain of the jury by substituting its own credibility determination 

for that of the fact-finder. See Clay, supra. 

Based on the foregoing, we reverse the trial court’s May 13, 2022 order 

granting Appellee’s post-sentence motions and discharging him from custody, 

and remand this case to the trial court with instructions to enter an order 

reinstating the jury’s guilty verdict and re-committing Appellee to serve the 

balance of his sentence.
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Order reversed. Case remanded with instructions. Jurisdiction 

relinquished.

Judge McLaughlin joins the Opinion. 

P.J.E. Bender files a Concurring and Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/2023