J-S28029-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENNETH ROBERT DANIELS II : : Appellant : No. 270 WDA 2023 Appeal from the Judgment of Sentence Entered October 14, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003893-2019

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.* MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 19, 2023 Appellant, Kenneth Robert Daniels II, appeals from the judgment of sentence entered October 14, 2022, as made final by the denial of his post-sentence motion on February 13, 2023. We affirm.

In July 2019, the Commonwealth charged Appellant with various offenses relating to the sexual abuse of his two minor daughters, C.J.D. and A.J.D. Appellant proceeded to a jury trial, which culminated on July 20, 2022.

That day, the jury found Appellant guilty of rape by forcible compulsion; involuntary deviate sexual intercourse - threat of forcible compulsion; aggravated indecent assault - threat of forcible compulsion; aggravated indecent assault – complainant less than 16-years-old; incest of minor – complainant 13-18; indecent assault - complainant less than 13-years-old; ____________________________________________

* Former Justice specially assigned to the Superior Court.

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indecent assault – complainant less than 16-years-old; indecent assault – forcible compulsion; and two counts of corruption of minors.1 Thereafter, the trial court deferred sentencing to facilitate the preparation of a presentence investigation report and to allow the Pennsylvania Sexual Offenders Assessment Board to determine whether Appellant met the criteria of a Sexually Violent Predator (“SVP”). On October 14, 2022, the trial court conducted a joint SVP and sentencing hearing. Ultimately, the trial court determined that, while Appellant did not meet the SVP criteria, he was subject to designation as a Tier III offender under the Sexual Offender’s Registration and Notification Act (“SORNA”).2 The trial court also sentenced Appellant to an aggregate term of 22 to 50 years’ imprisonment, followed by three years’ probation. Appellant filed a post-sentence motion on October 21, 2022, which the trial court denied on February 13, 2023. This timely appeal followed.

Appellant raises the following issue on appeal: Whether the trial court erred in determining that [] Appellant’s conviction was supported by the weight of the evidence when the testimonial evidence of both alleged victims was biased, disparate, inconsistent, contradictory and unsupported by any physical evidence to such a degree that [] Appellant’s conviction should be shocking to the conscience of the court?

Appellant’s Brief at 2 (superfluous capitalization omitted). ____________________________________________

1 18 Pa.C.S.A. §§ 3121(a)(2); 3123(a)(2); 3125(a)(3); 3125(a)(8); 4302(b)(2); 3126(a)(7); 3126(a)(8); 3126(a)(3); and 6301(a)(1)(ii), respectively.

2 42 Pa.C.S.A. §§ 9799.10 to 9799.41.

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Appellant’s claim challenges the weight of the evidence. Our standard of review is well-settled: 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. 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. 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. It has often been stated that a new trial should be awarded when the [] 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.

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: 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.

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.

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 -3- J-S28029-23

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. Soto, 202 A.3d 80, 97 (Pa. Super. 2018) (citation and some quotations omitted).

We have reviewed the briefs of the parties, the relevant law, the certified record, the notes of testimony, and the opinion of the able trial court judge, the Honorable J. Scott O. Mears. We conclude that Appellant is not entitled to relief in this case, for the reasons expressed in Judge Mears’s February 13, 2023 opinion. Therefore, we affirm on the basis of Judge Mears’ thorough opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Mears’ February 13, 2023 opinion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/19/2023

-4- Circulated 08/31/2023 10:03 AM