J-S62020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

MIGUEL ANGEL LANDRAU-MELENDEZ

Appellant No. 661 MDA 2017

Appeal from the PCRA Order March 28, 2017

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0002086-2014

BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 22, 2017

Miguel Angel Landrau-Melendez appeals from the March 28, 2017 order 

entered in the Lebanon County Court of Common Pleas denying his petition 

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. 

We affirm.

The opinion prepared for direct appeal by the Honorable Bradford H. 

Charles set forth a detailed factual history, which we adopt and incorporate 

herein. See Opinion, 10/21/15, at 2-5. On May 7, 2015, a jury convicted 

Landrau-Melendez of aggravated harassment by a prisoner, 18 Pa.C.S. § 

2703.1,1 based on evidence that he threw a cup of urine on another inmate. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The trial court convicted Landrau-Melendez of harassment, 18 Pa.C.S. 

§ 2709, which, for sentencing purposes, merged with the other conviction.
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On June 17, 2015, the trial court sentenced Landrau-Melendez to 21 to 72 

months’ incarceration on the conviction for aggravated harassment by a 

prisoner. On November 18, 2015, Landrau-Melendez timely appealed to this 

Court. On September 16, 2016, we affirmed his judgment of sentence.

On June 20, 2016, Landrau-Melendez, acting pro se, filed the instant 

PCRA petition. On August 5, 2016, Landrau-Melendez, through appointed 

counsel, filed an amended PCRA petition. On March 23, 2017, the trial court 

held a hearing on the petition. On March 29, 2017, the trial court denied the 

petition. On April 13, 2017, Landrau-Melendez timely filed an appeal.

Landrau-Melendez raises seven issues on appeal:

1. Whether Trial Counsel was ineffective for failing to 

take into account [Landrau-Melendez]’s comments on 

selecting the Jury and who Landrau-Melendez wanted 

and did not want on the Jury?

2. Whether Trial Counsel was ineffective for failing to 

allow [Landrau-Melendez] to testify at trial after he 

stated his desire to do so?

3. Whether Trial Counsel was ineffective for failing to call 

the cellmate of the victim . . . as a witness. Said 

witness would have aided in [Landrau-Melendez]’s 

defense?

4. Whether Trial Counsel was ineffective for failing to 

request and use [Landrau-Melendez]’s misconduct 

report. Said report would have aided in [LandrauMelendez]’s defense?

5. Whether Trial Counsel was ineffective for failing to 

adequately cross-examine . . . Captain [Ott] during 

cross-examination. [Landrau-Melendez] had 

requested Trial Counsel to question him on where and 

how the interview took place and also how he obtained 

the letter that [Landrau-Melendez] allegedly wrote?
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6. Whether Trial Counsel was ineffective for failing to 

subpoena a handwriting expert to prove that 

[Landrau-Melendez] did not write the confession 

letter?

7. Whether the Trial Court erred when it appointed 

Attorney Elizabeth Judd, after she was found to be 

ineffective in another case where she represented 

[Landrau-Melendez.]

Landrau-Melendez’s Br. at 4-5.

Our standard of review from the denial of PCRA relief “is limited to 

examining whether the PCRA court’s determination is supported by the 

evidence of record and whether it is free of legal error.” Commonwealth v. 

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). We will not disturb the PCRA 

court’s factual findings “unless there is no support for [those] findings in the 

certified record.” Commonwealth v. Melendez-Negron, 123 A.3d 1087, 

1090 (Pa.Super. 2015).

All but the last of Landrau-Melendez’s claims asserts trial counsel 

ineffectiveness. To prevail on ineffective assistance of counsel claims, “[the 

PCRA petitioner] must plead and prove, by a preponderance of the evidence, 

three elements: (1) the underlying legal claim has arguable merit; (2) counsel 

had no reasonable basis for his action or inaction; and (3) [the petitioner] 

suffered prejudice because of counsel’s action or inaction.” Commonwealth 

v. Spotz, 18 A.3d 244, 260 (Pa. 2011). “The law presumes counsel was 

effective.” Commonwealth v. Miner, 44 A.3d 684, 687 (Pa.Super. 2012). 

“A claim of ineffectiveness will be denied if the petitioner’s evidence fails to 
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meet any of these prongs.” Commonwealth v. Williams, 980 A.2d 510, 

520 (Pa. 2009).

First, Landrau-Melendez argues that his counsel at jury selection, 

Nicholas J. Sidelnick, Esquire,

2 “was ineffective for failing to listen to [his] 

requests and direction regarding the selection of his jury.” LandrauMelendez’s Br. at 10. Landrau-Melendez claims that he expressed concerns 

to counsel about the racial makeup of his jury and that counsel said there was 

little he could do because “almost all the jury that come[s] over here is like 

white, in the middle, old persons.” Id. at 9 (quoting N.T., 3/23/17, at 9).

The trial court concluded that Landrau-Melendez’s claim lacked merit 

chiefly because the court found that Landrau-Melendez never raised an issue

regarding jury composition with trial counsel. Opinion, 6/2/17, at 6 (“1925(a) 

Op.”). The trial court also observed that “it is not unusual for Lebanon County 

juries to be predominantly Caucasian” based on the county’s demographics. 

Id.

To the extent that Landrau-Melendez is claiming that counsel should 

have objected on the basis that the jury panel was not a fair cross-section of 

____________________________________________

2 Landrau-Melendez was represented by the public defender through his 

direct appeal. While Landrau-Melendez was primarily represented by 

Elizabeth Judd, Esquire, he was counseled at jury selection by Attorney 

Sidelnick, another member of the public defender’s office. N.T., 3/23/17, at 

28. 
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the community,3 Landrau-Melendez presented no evidence that would support 

such a claim. Further, counsel did not recall Landrau-Melendez raising any 

discussions or concerns during the jury selection process and recalled telling 

other defendants that there is little he could do to change the racial makeup 

of the jury pool other than tell clients to “write down any particular people 

that they don’t want in the jury.” N.T., 3/23/17, at 30. Counsel also testified 

that if there had been an issue with the racial makeup of the jury, he would 

have objected to preserve that issue. See id. at 32-33. Under these 

circumstances, Landrau-Melendez failed to demonstrate that trial counsel

lacked a reasonable basis for not objecting during jury selection. Accordingly, 

the trial court did not err in dismissing this claim.

Next, Landrau-Melendez argues that his trial counsel, Elizabeth Judd,

Esquire, was ineffective for failing to allow him to testify on his own behalf. 

According to Landrau-Melendez, he told trial counsel that he wanted to testify. 

Landrau-Melendez asserts that he told the trial court he did not want to testify 

in his own defense “[b]ecause [he] thought [he] was doing the right thing at 

the moment” by following trial counsel’s advice not to testify. LandrauMelendez’s Br. at 15.

____________________________________________

3 To prevail on such a challenge, a defendant must show that “1) the 

group allegedly excluded is a distinctive group in the community; 2) 

representation of this group in the pool from which juries are selected is unfair 

and unreasonable in relation to the number of such persons in the community; 

and 3) the under-representation is due to the systematic exclusion of the 

group in the jury selection process.” Commonwealth v. Lopez, 739 A.2d 

485, 495 (Pa. 1999) (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)).
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Our Court has stated:

[T]he decision to testify on one’s own behalf:

is ultimately to be made by the accused after full 

consultation with counsel. In order to support a claim 

that counsel was ineffective for “failing to call the 

appellant to the stand,” [the appellant] must 

demonstrate either that (1) counsel interfered with his 

client’s freedom to testify, or (2) counsel gave specific 

advice so unreasonable as to vitiate a knowing and 

intelligent decision by the client not to testify in his 

own behalf. 

[Commonwealth v. Thomas, 783 A.2d 328,] 334 

[Pa.Super. 2001)]. “Counsel is not ineffective where 

counsel’s decision to not call the defendant was reasonable.” 

Commonwealth v. Breisch, 719 A.3d 352, 355 (Pa.Super. 

1998).

Commonwealth v. Todd, 820 A.2d 707, 711 (Pa.Super. 2003).

Here, the trial court colloquied Landrau-Melendez on his right to testify 

and ensured his decision not to do so was voluntary. N.T., 5/7/15, at 48-49. 

Under these circumstances, we agree with the trial court’s conclusion that trial 

counsel did not interfere with Landrau-Melendez’s right to testify in his own.

Next, Landrau-Melendez argues that trial counsel was ineffective for 

failing to call the victim’s cellmate, Bryan Bennett, as a witness at trial. 

According to Landrau-Melendez, “Bennett’s testimony would have been very 

crucial as to what occurred at the time of alleged incident. . . . [and h]ad [t]rial 

[c]ounsel called [] Bennett to testify at trial, the [j]ury would have been able 

to determine that [Landrau-Melendez] did not commit such acts.” LandrauMelendez’s Br. at 21. 
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To establish counsel’s ineffectiveness for failing to call a potential 

witness, a petitioner must show that:

(1) the witness existed; (2) the witness was available to 

testify for the defense; (3) counsel knew of, or should have 

known of, the existence of the witness; (4) the witness was 

willing to testify for the defense; and (5) the absence of the 

testimony of the witness was so prejudicial as to have 

denied the defendant a fair trial. To demonstrate . . .

prejudice, a petitioner “must show how the uncalled 

witnesses’ testimony would have been beneficial under the 

circumstances of the case.” Thus, counsel will not be found 

ineffective for failing to call a witness unless the petitioner 

can show that the witness’s testimony would have been 

helpful to the defense. A failure to call a witness is not per 

se ineffective assistance of counsel for such decision usually 

involves matters of trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (internal 

citations and some quotations marks omitted).

The trial court dismissed this claim because Attorney Judd testified that 

Landrau-Melendez had admitted his guilt to her and, had Bennett witnessed 

the incident, Attorney Judd “could have legitimately believed that [] Bennett 

would tell the truth and describe what [Landrau-Melendez] himself admitted 

doing.” 1925(a) Op. at 10. 

We conclude that Landrau-Melendez’s claim is meritless. Trial counsel 

testified that she and Landrau-Melendez had discussed Bennett passing the 

note to the victim, but that Landrau-Melendez “did not bring to [her] 

attention] a witness that he wanted subpoenaed and brought to trial.” N.T., 

3/23/17, at 37. Further, Landrau-Melendez did not establish that Bennett was 

available or willing to testify.
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Next, Landrau-Melendez argues that trial counsel was ineffective for 

failing to introduce a misconduct report4from the Lebanon County 

Correctional Facility regarding the incident. According to Landrau-Melendez, 

because the report did not disclose that Landrau-Melendez admitted to the 

offense or that there was any direct evidence linking Landrau-Melendez to the 

offense, the report would have supported his defense.

The trial court concluded that counsel had a reasonable basis for not 

introducing the misconduct report because, even though the report lacked any 

confession, “[t]here were many more things negative than positive in the 

report.” 1925(a) Op. at 11. We agree.

At the PCRA hearing, Attorney Judd testified that while misconduct 

reports may sometimes help a defendant, she did not believe that this report 

was helpful because it portrayed Landrau-Melendez as uncooperative and 

combative. N.T., 3/23/17, at 37. Attorney Judd further stated that the report 

was unhelpful because it disclosed that when corrections officers confronted 

Landrau-Melendez, he told them “you would have to test the urine, you have 

my DNA.” Id. at 38. Attorney Judd stated that she was “relieved when the 

report wasn’t brought up because there were more things that were negative 

for him than positive.” Id. at 38. Given these issues with the misconduct 

report, we agree with the trial court that Attorney Judd had a reasonable basis 

for not introducing it at trial. 

____________________________________________

4 Landrau-Melendez did not attach a copy of the report to his PCRA 

petition or his brief, nor did he introduce the report at his PCRA hearing.
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Next, Landrau-Melendez argues that trial counsel was ineffective 

because she inadequately cross-examined Captain Michael Lee Ott of the 

Lebanon County Correctional Facility. According to Landrau-Melendez, he 

asked Attorney Judd to cross-examine Captain Ott about (1) “being how that 

chain command that the letter got to the victim,” and (2) who was at the 

interview, “to try to poke hole in the interview.” Landrau-Melendez’s Br at 28 

(quoting N.T., 3/23/17, at 22). Landrau-Melendez asserts that Attorney Judd 

had no reasonable basis not to cross-examine Captain Ott.

The trial court rejected this claim, concluding not only that it “did not 

understand what it was [Landrau-Melendez] wanted to ask Captain Ott,” but 

also that Landrau-Melendez presented “no evidence . . . that any answers that 

Captain Ott could have offered would somehow have been helpful.” 1925(a) 

Op. at 12. Further, the trial court noted that Attorney Judd was aware that 

Captain Ott held information damaging to Landrau-Melendez’s case and, as a 

result, Attorney Judd “believed that the best strategy in dealing with Captain 

Ott was to ask as few questions as possible.” Id. Thus, Attorney Judd elected 

not to cross-examine Captain Ott more extensively to avoid the release of 

damaging information which, under the circumstances, was not ineffective 

assistance. Cf. Commonwealth v. Showers, 681 A.2d 746, 753-54 

(Pa.Super. 1996) (concluding that decision to limit cross-examination of 

Commonwealth’s forensic psychiatrist was reasonable because “an extended 

cross-examination might have allowed [the expert] to restate his opinion 
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regarding the deceased’s risk of suicide”). Under these circumstances, we 

conclude that the trial court correctly dismissed this claim.

Next, Landrau-Melendez argues that trial counsel was ineffective for 

failing to subpoena a handwriting expert witness to prove that he did not write 

the note the victim received. 

The trial court dismissed found this claim meritless, largely because 

Landrau-Melendez told Attorney Judd that he had written the letter. At the 

PCRA hearing, trial counsel testified that Landrau-Melendez told her that he 

had written the note that was given to the victim. N.T., 3/23/17, at 40. Trial 

counsel also testified that this informed her decision not to subpoena a 

handwriting expert because she “believed it would be unethical to get an 

expert” after learning that information. Id. at 41. Because Landrau-Melendez 

admitted to trial counsel that he wrote the letter, the trial court did not err in 

concluding that this claim was meritless.

Finally, Landrau-Melendez argues that the trial court erred in appointing 

Attorney Judd as trial counsel because Attorney Judd had provided ineffective 

assistance to Landrau-Melendez in a different case. According to LandrauMelendez, because “Attorney Judd was previously found to be ineffective on 

[his] behalf, [he] believes that it was not judicially fit to have that same 

ineffective counsel appointed to another one of [his] cases.”

The trial court concluded that this claim was meritless because LandrauMelendez “never filed a motion with the Court to remove Attorney Judd. . . . 

[and] failed to express any concern verbally about Attorney Judd’s 
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representation of him.” 1925(a) Op. at 13. In addition, the trial court found 

that Attorney Judd acknowledged that she had missed a filing deadline for a 

petition for allowance of appeal in Landrau-Melendez’s other case. Id. The 

trial court also found that when Attorney Judd disclosed this mistake to 

Landrau-Melendez and informed him that he could obtain another attorney in 

this case, Landrau-Melendez expressed confidence and satisfaction with her 

representation. Id.

Despite being told that he could obtain another attorney, LandrauMelendez never filed a motion to remove Attorney Judd. He raised this issue 

for the first time in his PCRA petition. Because Landrau-Melendez could have 

raised this issue before the trial court, we conclude that Landrau-Melendez 

has waived this claim. See 42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the 

petitioner could have raised it but failed to do so before trial, at trial, during 

unitary review, on appeal or in a prior state postconviction proceeding.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2017
evidence. We write this Opinion to affirm our judgment of sentence. 

facility, the Defendant challenged his conviction by alleging that the jury's 

verdict was against the weight of evidence and was not based on. sufficient 

sentenced the Defendant to 21 months to 6 years in a state correctional 

Defendant guilty of Aggravated Harassment by a Prisoner. After we 

with my time." Based upon the above evidence and more, a jury found the 

victim stating: "Don't press charges. Please don't be a bitch. Don't f*** 

threw a cup of urine at and onto another inmate. He then sent a note to the 

While incarcerated in the Lebanon County Prison, the Defendant 

OPINION BY CHARLES1 J., October 21, 2015 

Elizabeth Judd, Esquire For Miguel Landrau-Melendez 

PUBLIC DEFENDER'S OFFICE 

Megan Ryland-Tanner, Esquire For Commonwealth of Pennsylvania 

DISTRICT ATTORNEY'S 

OFFICE 

APPEARANCES 

f--·· 

.:".:· .:: ...,_ MIGUEL LANDRAU~MELENDEZ 

v. 

COMMONWEAL TH OF 

PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY 

PENNSYLVANIA 

CRIMINAL DIVISION 

Circulated 10/23/2017 10:05 AM Circulated 09/01/2016 12:58 PM
2 

L FACTS 

On March 16, 2014, Marq Garloff (hereafter "GARLOFF") was an 

inmate housed in Cell Block 3 of the Lebanon County Correctional Facility 

located in the City of Lebanon. (N.T. 5). During the morning hours of March 

16, 2014, GARLOFF was lying on his bed which was the bottom of the bunk 

bed. (N.T. 6). He heard the doors to the cells opening. He then observed 

Miguel Landrau-Melendez (hereafter "DEFENDANT') standing in front of his 

cell gates. (N.T. 6). DEFENDANT was holding a white Styrofoam cup. 

DEFENDANT threw the contents of the white Styrofoam cup at GARLOFF. 

(N.T. 10). 

GARLOFF testified that the contents of the cup contained urine. He 

stated that when DEFENDANT threw the urine at him, it landed on him, his 

towel, his bed, his lip and his hair. (N.T. 6). When questioned how he 

knew the liquid was urine, GARLOFF testified that some of the urine landed 

on his lip and he was able to taste it. In addition, when it landed on his 

blanket, it turned the blanket yellow at the wet spots. (N.T. 6). GARLOFF 

stated that his towel was hanging on top of the bottom front of his bunk. 

At some point either the day of or the day after the incident with the 

urine, GARLOFF received a note from DEFENDANT. (N.T. 5). GARLOFF 

stated that the note had been delivered to him by someone other than 

DEFENDANT. (N.T. 9). 

GARLOFF testified that when someone is in prison and is labeled a 

snitch, it becomes problematic for the inmate to function through the prison 
3 

system. In addition there is always the potential that the inmate could be 

physically harmed. (N.T. 24). Because of the above, and because 

GARLOFF was being threatened by DEFENDANT and half the block and 

because of fear and intimidation, GARLOFF wrote a handwritten statement 

stating that he did not want to press charges against DEFENDANT. 

GARLOFF provided the handwritten statement to DEFENDANT. (N.T. 16- 

18). DEFENDANT specifically told GARLOFF to write that the urine did 

not get on him and that he would not be pressing charges. (N.T. 19). 

GARLOFF did testify under subpoena. However, throughout the 

investigation, he cooperated with the Pennsylvania State Police and never 

once asked that the charges be withdrawn. (N.T. 25). When introduced as 

evidence, GARLOFF was able to identify the towel as the one he had used 

for many months. He also indicated that his towel had a rip in it and had 

some drawings on it. (N. T. 7 "8; Exh. 4 ). 

Bradley Starry (hereafter "STARRY0) also testified at trial. He is 

employed as a supervisor of the inmates at the Lebanon County 

Correctional Facility. On March 16, 2014, STARRY was assigned to the 

block three control station. (N.T. 25). 

At some point in time, STARRY was approached by an inmate who 

told him about urine being thrown. (N.T. 25). STARRY entered GARLOFF'S 

cell and questioned him about the liquid on GARLOFF's prison issue. (N.T. 

26, 30). At the time GARLOFF and another inmate were present inside the 

cell. (N.T. 30). 
4 

After questioning GARLOFF, STARRY left the cell block and went to 

central control to view the video surveillance tape. (N.T. 26). STARRY 

testified that each cell block has their own video surveillance. The video 

equipment is set up so that if it is not downloaded and copied, it overrides 

itself several days later. (N.T. 30-31). STARRY stated that he did not 

burn a copy of the video footage and ultimately the video footage was 

overridden and no longer existed. (N. T. 31). 

STARRY testified that when he viewed the video, he started from a 

· point where the inmate approached him. and reported the incident and 

backtracked from there. In so doing, STARRY was able to observe 

DEFENDANT in front of GARLOFF's cell. (N.T. 32). Upon observing this, 

STARRY returned to GARLOFF's cell and collected various items including 

GARLOFF's prison uniform, sheets, towel, and anything else that appeared 

tobewet. (N.T.32). 

STARRY then pulled DEFENDANT out of the block at which time he 

said to DEFENDANT that he already knows why he is out here. 

DEFENDANT's response was "you have my DNA on file, you're going to 

have to send it to the lab to verify it." (N .T. 34). STARRY did not tell 

DEFENDANT about the liquid substance or any of the observations he had 

made. (N.T. 34). 

Captain Michael Ott who is employed as Captain of Security at the 

Lebanon County Correctional Facility also testified at trial. Captain Ott 

testified that as part of his investigation, he learned that GARLOFF had 
5 

been provided with a note that said "Don't press charges. Please don't be 

a bitch. Don't f with my time. Please, I'm trying to go home. Thank 

you, Miguel." (Exh. 5; N.T. 38). When Captain Ott spoke with DEFENDANT, 

DEFENDANT acknowledged that he wrote the note. (N.T. 38). 

During trial, a Stipulation of Facts was entered by counsel. Among 

other things, this stipulation indicated the following: 

(1) Forensic scientists were able to detect no urine on the red prison 

uniform; however urine was present on the white towel. The sheets 

were not analyzed. 

(2) All items were collected by Lebanon County Correctional Facility 

Officers on March 16, 2014. · 

(3) All items were turned over to the Pennsylvania State Police on April 

6, 2014 and Troopers from the Pennsylvania State Police transported 

the red uniform worn by GARLOFF to the Pennsylvania State Police 

Crimes Laboratory on April 30, 2014. 

(4) On August 28, 2014, Pennsylvania State Troopers transported the 

linens to the Pennsylvania State Police Crimes Laboratory for testing. 

The linens included the white sheets and the towel. (Exh. 1; N.T. 39- 

42). 

II. DISCUSSION 

A. WEIGHT AND SUFFICIENCY OF EVIDENCE 

Because DEFENDANT's sufficiency and weight of the evidence 

arguments are related, we will address them together. That being said, we 
6 

evidence, along with all reasonable inferences to be drawn therefrom, was 

874 A.2d 667, 677 (Pa.Super. 2005). Second, we must ask whether that 

the fact-finder could have based the verdict. Commonwealth v. Walker, 

step inquiry. First, we consider all of the evidence in the light most 

favorable to the Commonwealth, accepting as true all evidence upon which 

When reviewing a sufficiency of the evidence .claim, we apply a two1981 )) . On the other hand, "a new trial is a proper remedy when the verdict 

is found to be against the weight of the evidence." Id. at 461. 

supra, (citing Hudson v. Louisiana, 450 U.S. 40, 67 L.Ed.2d 30 (S.Ct. 

States Constitution precludes retrial. See Commonwealth v. Whiteman, 

Id. at 462, citing Commonwealth v. Taylor, 4 71 A.2d 1228, 1229-1230 

(Pa.Super. 1984). If there is insufficient evidence to support a jury's 

verdict, the double jeopardy clause of the Fifth Amendment to the United 

A motion for new trial on grounds that the verdict is contrary to 

the weight of the evidence concedes that there is sufficient 

evidence to sustain the verdict but contends, nevertheless, that 

the verdict is against the weight of the evidence. Whether a 

new trial should be granted on the grounds that the verdict is 

against the weight of the evidence is addressed to the sound 

discretion of the trial judge .... The test is not whether the court 

would have decided the case in the same way but whether the 

verdict is so contrary to the evidence as to make the award of a 

new trial imperative so that right may be given another 

opportunity to prevail. 

v. Whiteman, 485 A.2d 459 (Pa.Super. 1984}: 

lack of weight of evidence. That distinction was laid out in Commonwealth 

recognize that there is a distinction between challenges to sufficiency and 
7 

sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. 

Azim, 459 A.2d 1244, 1246 (Pa.Super. 1983). 

In passing upon the credibility of wltnesses and the· weight to be 

afforded the evidence produced, the jury is at liberty to believe all, part, or 

none of the evidence. Commonwealth v. Price, 610 A.2d 488 (Pa.Super. 

1992). We are not to engage in post-verdict credibility discussions, nor are 

we permitted to substitute our opinion regarding the facts for that of the 

jury. Commonwealth v. Brown, 486 A.2d 441 (Pa.Super. 1984). If the 

fact-finder could have reasonably determined from the evidence that all of 

the necessary elements of the crime were established, then that evidence 

will be deemed sufficient to support the verdict. Commonwealth v. 

Hopkins, 747 A.2d 910, 913-14 (Pa.Super. 2000). 

The standard to be applied when assessing a challenge to the weight 

of evidence imposes a "heavy burden" upon the defendant. 

Commonwealth v. Staton, 1998 WL 1297080 (C.P. Philadelphia 1998). A 

jury's verdict will be overturned only when it is "so contrary to the evidence 

as to shock one's sense of justice." Commonwealth v. Schwartz, 615 A.2d 

350, 361 (Pa.Super. 1992). This standard has been described as follows: 

"When the figure of Justice totters on her pedestal, or when the jury's 

verdict, at the time of its rendition, causes the trial judge to lose his breath, 

temporarily, and causes him to almost fall from the bench then it is truly 

shocking to the judicial conscience." Commonwealth v. Davidson, 860 

A.2d 575, 581 (Pa.Super. 2004) (citations of7?itted). 
8 

The 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. Commonwealth v. Simmons, 662 A.2d 621, 

630 (Pa. 1995). The function of the fact finder is to pass on the credibility 

of witnesses and determine the weight to be accorded to a particular piece 

of evidence. Id. 

In this case, the Commonwealth established the following inculpatory 

information: 

(1) The video surveillance tape observed by STARRY showed 

DEFENDANT standing in front of GARLOFF's cell block prior to the 

incident. 

(2) GARLOFF identified DEFENDANT as the person who threw the cup of 

urine on him. 

(3) As indicated by the Stipulation of facts, GARLOFF's towel tested 

positive for urine. 

(4) DEFENDANT threatened and intimidated GARLOFF into writing a 

statement that the urine did not get on him. What purpose would 

DEFENDANT have to threaten GARLOFF and have GARLOFF write 

such a statement if DEFENDANT was not even involved in this 

incident? 

(4) DEFENDANT acknowledged to Captain Ott that he provided 

GARLOFF with a note that read "Don't press charges. Please don't 

be a bitch. Don't f with my time. Please, I'm trying to go home. 
9 

Thank you, Miguel." Once again, why would DEFENDANT have even 

written this note to GARLOFF if he was innocent of any wrongdoing? 

Based on the above information and more, we believe that the jury 

possessed more than enough evidence to find DEFENDANT guilty of the 

crimes charged. Moreover, we cannot say that the jury's verdict was so 

"shocking" as to be against the weight of evidence. Accordingly, the PostSentence Motions filed by DEFENDANT based upon weight and sufficiency 

of evidence will be denied.