J-S63022-18

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ELWOOD C. BRASWELL

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 324 WDA 2018

Appeal from the Judgment of Sentence September 13, 2013

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

No(s): CP-27-CR-0000037-2013

BEFORE: OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED OCTOBER 29, 2018

Elwood C. Braswell (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of criminal homicide and related offenses. 

We affirm.1

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1 As we discuss infra, this is Appellant’s second direct appeal. In his first 

counseled appeal, this Court held that the sole issue was waived for failure to 

preserve it, and subsequently Appellant’s post-sentence and direct appeal 

rights were reinstated nunc pro tunc. See Commonwealth v. Rosado, 150 

A.3d 425, 434 (Pa. 2016) (holding that “the filing of an appellate brief which 

abandons all preserved issues in favor of unpreserved ones constitutes 

ineffective assistance of counsel per se”); Commonwealth v. Braswell, 86 

WDA 2017 (unpublished memorandum) (Aug. 8, 2017).

Further, we note that in this appeal, Appellant purported to appeal from the 

February 6, 2018 order denying his post-sentence motion. “However, ‘[i]n a 

criminal action, an appeal properly lies from the judgment of sentence made 

final by the denial of post-sentence motions.’ Therefore, we have corrected 

the caption accordingly.” Commonwealth v. Beeman, 847 A.2d 87 n.1 (Pa. 

Super. 2004) (citation omitted). 
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Sometime in the early morning hours of August 22, 2012, Appellant, 

who was an inmate at SCI Forest, killed his cellmate, Frederick Kirkland (the 

victim). Appellant admitted to the killing. As a result, the Commonwealth 

charged Appellant with criminal homicide, aggravated assault, aggravated 

harassment by a prisoner, and abuse of a corpse.2

The case proceeded to a jury trial on August 26, 2013. The 

Commonwealth presented evidence that at 5:25 a.m. on August 22, 2012, 

Corrections Officer (CO) Curt Klawuhn and Nurse Eileen Summers went to

Appellant and the victim’s cell to administer medication to the victim. N.T. 

Trial, 8/26/13, at 53, 67-68. The victim was lying on the bottom bunkbed, 

covered with a sheet. Id. at 54-55, 68-70. In an “upbeat” manner, Appellant 

told the CO and Nurse Summers that the victim could not take his medication 

because Appellant killed him. Id. at 54, 68. Appellant further stated that 

Appellant “was god” and “wanted his power,” and thus killed the victim, and 

now possessed the victim’s powers. Id. at 54, 69. Appellant’s tone was 

“conversational” and he appeared “happy” and was “laughing.” Id. at 56, 70.

Later that morning, Pennsylvania State Police Trooper Jason Wagner

and Corporal Charles Dominic conducted a videotaped interview of Appellant. 

N.T. Trial, 8/26/13, at 219. When Appellant was informed that the victim 

died, he “got to his feet[,] jumped in the air and [said] I did it.” Id. at 221. 

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2 18 Pa.C.S.A. §§ 2502(a), 2702(a)(1), 2703.1, 5510.
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Appellant told the officers that he woke at 1:40 a.m. and “decided he was 

going to kill his cell mate.” Id. at 222-223. Appellant then woke the victim

and told him that the nurse was there with his medication, and the victim got 

up. Id. at 224. “[C]oncerned that someone in the neighboring cell may hear 

some noise,” Appellant flushed the toilet and then punched the victim in the 

head. Id. at 224-225. The victim asked Appellant why he punched him, and

Appellant punched him four more times. When the victim fell, Appellant 

“stomp[ed on] him.” Id. at 226-227. Appellant placed a pillow over the 

victim’s face and sat on the pillow for approximately 20 minutes until the 

victim stopped breathing and moving. Id. at 228-230. Appellant then 

punched the victim’s face “multiple” times, before putting a sheet around the 

victim’s neck and attempting to strangle him. Id. at 230.

Appellant further told the officers that he “moved [the victim’s] body 

around a couple times” and ultimately placed the victim in the bottom bunk. 

N.T. Trial, 8/26/13, at 233. Appellant urinated and defecated on the victim, 

and used a sock filled with bars of soap to strike the victim’s head five times. 

Id. at 234. Appellant also removed the victim’s “drawers and diaper,” put a 

chicken bone and a pen in the victim’s anus, and attempted to bite off the 

victim’s penis. Id. at 236, 245. Appellant covered the victim with a blanket 

because he knew that prison “staff members would be making the rounds.” 

Id. at 235, 237. Finally, Appellant “attempted to clean up the corner of the 

cell.” Id. at 235.
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As to why Appellant attacked the victim, Appellant told the officers that 

“he was tired of carrying his cellie’s weight” and that he “believed he was god 

and he wanted [the victim’s] powers.” N.T. Trial, 8/26/13, at 238. Appellant 

“indicated that he was happy that he did it.” Id. at 239. He did not seem 

confused or disoriented, and although “[a]t times he spoke very rapidly,” his 

explanation of the details was “very clear.” Id. at 240. Following an autopsy, 

a forensic pathologist determined that the victim died of asphyxiation, with 

“blunt force trauma to the head also play[ing] a role.” Id. at 187.

Appellant presented an insanity defense. He did not testify, but 

presented an expert witness, Dr. Safdar Chaudhary, a psychiatrist. Dr. 

Chaudhary interviewed Appellant approximately six months after the incident, 

and reviewed his criminal record, the videotape of his statement to Trooper 

Wagner and Corporal Dominic, and the police report. N.T. Trial, 8/26/13, at

268, 277, 338. Dr. Chaudhary also obtained Appellant’s medical records 

several days before trial, but stated that the records did not factor into his 

report. Id. at 269, 332. Appellant initially told Dr. Chaudhary that he did not 

hear voices, but later stated that he heard “voices all the time.” Id. at 311. 

Dr. Chaudhary diagnosed Appellant with schizophrenia/paranoid type, which 

the doctor characterized as having “delusions of persecution or grandeur,” or 

a “feeling that a person has some kind of supernatural power.” Id. at 271, 

273-274. Dr. Chaudhary opined that at the time of the offense, Appellant was 

legally insane, “was suffering from an acute psychotic behavior,” and was 
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unable “to tell the difference between right and wrong” due to his mental 

illness. Id. at 309, 330, 355. Dr. Chaudhary further opined that Appellant 

did not have a rational mind or a rational motive when he killed the victim. 

Id. at 330.

On cross-examination, Dr. Chaudhary acknowledged that by flushing 

the toilet so that others could not hear him, and cleaning up the cell and 

covering the victim with a blanket, Appellant “planned” and knew he needed 

to hide or cover up what he was doing. N.T. Trial, 8/26/13, at 335-336. Dr. 

Chaudhary also testified that if someone were attempting to “fake . . . a 

disease [or] disorder,” he would ask that person many questions about his 

symptoms. Id. at 340-341. Dr. Chaudhary then acknowledged that when he 

asked Appellant about hearing voices, Appellant “said that he didn’t know”

and that Appellant “wasn’t quite committed to even responding to that 

question.” Id. at 341.

The jury returned a verdict of guilty but mentally ill on the counts of

criminal homicide, aggravated assault, and abuse of a corpse, but found 

Appellant not guilty of aggravated harassment by a prisoner. On September 

13, 2013, the trial court sentenced Appellant to life imprisonment without 

parole for homicide, a consecutive 10 to 20 years of imprisonment for 

aggravated assault, and a consecutive 1 to 2 years of imprisonment for abuse 

of a corpse.

Appellant did not file a post-sentence motion or direct appeal. On April 
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30, 2014, he filed a timely petition under the Post Conviction Relief Act 

(PCRA).3 Raymond Rockwell, Esquire, was appointed to represent Appellant. 

Attorney Rockwell filed an amended PCRA petition seeking reinstatement of 

Appellant’s direct appeal rights nunc pro tunc. The PCRA court4 granted relief, 

and Appellant appealed, raising a single claim: whether the jury’s verdict of 

guilty but mentally ill was against the weight of the evidence. Noting that 

Appellant had not sought, and was not granted, reinstatement of his postsentence rights nunc pro tunc, this Court concluded that Appellant’s weight 

claim was waived for failure to raise it before the trial court. Thus, on August 

8, 2017, this Court affirmed the judgment of sentence. Braswell, supra.

On September 1, 2017, Appellant filed a timely “first” pro se PCRA 

petition, averring that Attorney Rockwell provided ineffective assistance of 

counsel. See Commonwealth v. Karanicolas, 836 A.2d 940, 944 (Pa. 

Super. 2003) (“When a petitioner is granted a direct appeal nunc pro tunc in 

his first PCRA petition, a subsequent PCRA petition is considered a first PCRA 

petition for timeliness purposes.”). The PCRA court appointed present 

counsel, Pamela Logsdon Sibley, Esquire, to represent Appellant, and she filed 

a motion to reinstate Appellant’s post-sentence and appellate rights nunc pro 

tunc. The PCRA court granted relief.

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3 42 Pa.C.S.A. §§ 9541-9545.

4 The PCRA judge also presided at Appellant’s trial.
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On October 27, 2017, Appellant filed a motion for a new trial, again 

challenging the weight of the evidence. After hearing argument on January 

30, 2018, the court on February 6, 2018, issued an order and opinion denying

the motion. Appellant timely appealed. Appellant complied with Pa.R.A.P. 

1925(b), and the trial court issued an additional opinion on April 30, 2018.

Appellant raises two related issues:

Whether the verdict of guilty but mentally ill is against the weight 

of the evidence when a qualified psychiatric expert testified that 

[Appellant] is legally insane, the Commonwealth does not rebut 

said expert testimony, and numerous Commonwealth witnesses 

testify to behavior demonstrating [Appellant’s] insanity.

Whether the judge abuses her discretion by failing to order a new 

trial when [Appellant] has been found guilty but mentally ill after 

proving by a preponderance of the evidence that he was insane at 

the time the offense was committed.

Appellant’s Brief at 6.

Appellant first alleges that he proved by a preponderance of the 

evidence — “‘the lowest of standards’ of proof” — that he was insane at the 

time of the incident, and thus the jury’s verdicts of guilty but mentally ill are 

against the weight of the evidence. Id. at 14. Appellant avers that the jury 

“completely disregard[ed] the overwhelming evidence of insanity,” including 

Dr. Chaudhary’s unequivocal testimony that Appellant suffered from 

schizophrenia/paranoid type, exhibited “an extremely bizarre delusional 

system,” and “there was no indication that [Appellant] was malingering or 

falsely portraying himself as insane.” Id. at 14-15. Appellant also cites trial 

testimony that after the incident, he stated he was god and wanted the 
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victim’s powers, he did not demonstrate any feelings of guilt, but instead “he 

acted as if he did not know that what he had done was wrong.” Id. at 17-22. 

Appellant concludes the trial court abused its discretion in denying his motion 

for a new trial.

We note our standard of review:

[T]he weight of the evidence is “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.” An appellate court 

“cannot substitute its judgment for that of the finder of fact . . . 

thus, we may only reverse the lower court’s verdict if it is so 

contrary to the evidence as to shock one’s sense of justice.”

Moreover, “where 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. Kim, 888 A.2d 847, 851 (Pa. Super. 2005) (citations 

omitted). “Furthermore, when expert opinion evidence is admitted, the 

factfinder is free to reject it, accept it, or give it some weight between the 

two.” Commonwealth v. Stephens, 74 A.3d 1034, 1041 (Pa. Super. 2013) 

(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 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. 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.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation 
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omitted).

Our Supreme Court has explained:

[A] verdict of guilty but mentally ill is authorized by Section 314 

of the Crimes Code, as follows:

(a) General rule.—A person who timely offers a defense 

of insanity in accordance with the Rules of Criminal 

Procedure may be found “guilty but mentally ill” at trial if 

the trier of facts finds, beyond a reasonable doubt, that the 

person is guilty of an offense, was mentally ill at the time of 

the commission of the offense and was not legally insane at 

the time of the commission of the offense.

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(c) Definitions.—For the purposes of this section . . . :

(1) “Mentally ill.” One who as a result of mental 

disease or defect, lacks substantial capacity either to 

appreciate the wrongfulness of his conduct or to conform 

his conduct to the requirements of the law.

(2) “Legal insanity.” At the time of the commission of 

the act, the defendant was laboring under such a defect 

of reason, from disease of the mind, as not to know the 

nature and quality of the act he was doing or, if he did 

know it, that he did not know he was doing what was 

wrong.

18 Pa.C.S. § 314. [T]his Court determined that Section 314(a) 

does not impose a burden of proof concerning a defendant’s 

mental illness on either party, but rather, is implicated where an 

insanity defense fails but evidence of the defendant’s mental 

illness nevertheless “preponderates.” The insanity defense is 

provided for in Section 315 of the Crimes Code, as follows:

(a) General Rule.—The mental soundness of an actor 

engaged in conduct charged to constitute an offense shall only 

be a defense to the charged offense when the actor proves by 

a preponderance of the evidence that the actor was legally 

insane at the time of the commission of the offense. . . .
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18 Pa.C.S. § 315.

Commonwealth v. Rabold, 951 A.2d 329, 330-331 (Pa. 2008) (some 

citations omitted).

Instantly, the trial court noted that at argument on Appellant’s post-trial 

motion, he requested that the court “review specific testimony.” Trial Court 

Opinion, 2/6/18, at 3. The court thus considered the testimony of prison 

officials and Nurse Summers that “after the victim was discovered,” Appellant 

“was gleeful, upbeat and pleasant,” and “told them he killed the victim to get 

his power and now he was god.” Id. The court further acknowledged Dr. 

Chaudhary’s expert testimony that Appellant “met the definition of legal 

insanity at the time of the crime.” Id. However, the court also referenced 

Dr. Chaudhary’s testimony that Appellant “indicated that he planned to kill the 

victim”; “flushed the toilet to cover the noise when he began the assault”; and 

covered the victim’s body “to conceal his actions.” Id. at 3-4. The court aptly 

pointed out that “[t]he same evidence which is relevant to [Appellant’s] 

proffered defense of insanity was relevant to the jury’s finding of mental 

illness.” Trial Court Opinion, 4/30/18, at 4. The court also recognized that 

the jury was free to believe all, part, or none of the evidence, and to determine 

the witnesses’ credibility. See Stephens, 74 A.3d at 1041; Kim, 888 A.2d 

at 851. Ultimately, the trial court concluded that the jury’s verdicts were “in 

no way . . . contrary to the evidence” and did not shock its sense of justice. 

Trial Court Opinion, 4/30/18, at 4; Trial Court Opinion, 2/6/18, at 4.
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Upon review, we conclude that the trial court did not abuse its discretion. 

Although Dr. Chaudhary offered his opinion that Appellant met the legal 

definition of “insane” at the time of the killing, the jury was free to “reject it, 

accept it, or give it some weight between the two,” and this Court may not 

reweigh the trial evidence or credibility of the witnesses. See Stephens, 74 

A.3d at 1041; Kim, 888 A.2d at 851. Where both the Commonwealth’s 

witnesses and Dr. Chaudhary testified that some of Appellant’s actions 

indicated that he planned the assault and knew he should “cover [it] up”, the 

jury was free to reject Appellant’s insanity defense and find that “evidence of 

[Appellant’s] mental illness nevertheless ‘preponderate[d].’” See Rabold, 

951 A.2d at 331, citing 18 Pa.C.S.A. § 314(c)(1). It is well-settled law that 

this Court may not reweigh evidence. See Widmer, 744 A.2d at 753; Kim, 

888 A.2d at 851. Accordingly, we find no merit to Appellant’s weight claim.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/29/2018