Carry That Weight

Carry That Weight

Challenging evidence on appeal
By Barbara S. Magen Special to the Law Weekly
In presenting a case, attorneys, with spirit and vigor, seek to convince a court, as they themselves have become convinced, that the evidence is so overwhelmingly in their client's favor that any adverse result is unthinkable. With this optimistic view of the world, an advocate proceeds forward, with the conviction and belief that based on the strength of the evidence, a positive result is destined to be reached.
Just as rules are made to be broken, however, convincing a tribunal that the "evidence speaks for itself" is not always a sure bet. Advocates, therefore, proceed to the appellate level, frequently maintaining that the finding of the lower tribunal was in gross opposition with the "weight of the evidence."
These claims seem to be made with such regularity that they have almost become boilerplate in nature. As Pennsylvania's Supreme Court has recently documented in Armbruster v. Horowitz, PICS Case No. 02-2044 (Pa. Dec. 31, 2002) Castille, J. (17 pages), weight of the evidence claims are "common in trial practice and are often articulated by rote and in the sketchiest of terms."
Therefore, if you're going to use this sword as your weapon of choice on appeal, you'd better know how best to wield it.
An understanding of a weight of the evidence argument on appeal is critically important if you're going to try to convince a reviewing tribunal that the lower court's result was so unjust as to shock one's sense of justice. Waving a flag of mere alleged inequity is insufficient. In order to successfully make this argument, an advocate must understand the limited role of an appellate tribunal and keep an eye on that ball.
It is initially important to determine the type of relief that you wish to seek on appeal. As the Superior Court noted in Hohns v. Gain, 806 A.2d 16 (Pa. Super. 2002), when challenging the very sufficiency of the evidence, a party is seeking relief in the nature of a judgment notwithstanding the verdict. In evaluating the adequacy of the evidence, with respect to a request for the entry of judgment as a matter of law, an appellate tribunal will review the record, scrutinizing the evidence "and all reasonable inferences therefrom...in the light most favorable to the verdict winner." Hohns [(quoting Zeffiro v. Gillen, 788 A.2d 1009 (Pa. Super. 2001)].
Distinct from an argument rooted in the sufficiency of the evidence is a weight of the evidence claim which, when successful, results in the award of a new trial. When passing on the inquiry of whether a verdict is against the weight of the evidence, an appellate court is not required to only consider the evidence in a light most favorable to the verdict winner; instead, when evaluating a weight of the evidence claim, an appellate tribunal is authorized to, and will, view all of the evidence submitted.
In this latter circumstance, the complaining party concedes that there was enough evidence to sustain the verdict. However, with this scenario, the moving party, on appeal, faces the challenge of proving that the finding of the lower court was actually in opposition with the evidence elicited during the proceeding. As the Superior Court reiterated in Katz v. St. Mary Hospital, PICS Case No. 03-0109 (Pa. Super. Jan. 28, 2003) Tamilia, J. (8 pages), a new trial will be granted on the basis of a weight of the evidence claim only where the verdict is deemed so contrary to the evidence that it is shocking to our notions of justice. Correspondingly, a moving party, on appeal, is not entitled to a new trial when the evidence is conflicting or where the fact-finder could have decided either way.
Significantly, as was reasserted in Cummins v. Atlas Railroad Construction Co., PICS Case No. 02-2022 (Pa. Super. Dec. 30, 2002) Graci, J. (15 pages), appellate courts have consistently underscored that they are not "empowered to merely substitute [their] opinion concerning the weight of the evidence for that of the trial judge...." The role of an appellate court is restricted to determining whether the trial court "palpably abused" its discretion.
In this vein, it must be recognized that an "abuse of discretion" is not just an error in judgment, nor may an appellate court find an abuse merely because it might have reached a different conclusion. A finding of an abuse of discretion, by an appellate tribunal, requires a showing of manifest unreasonableness, partiality, prejudice, bias, ill will or such a lack of support as to be clearly erroneous.
As such, an appellate tribunal will generally respect a trial court's conclusions with reference to the weight of the evidence "unless it can be shown that the lower court's determination was manifestly erroneous, arbitrary and capricious or flagrantly contrary to the evidence." Cummins [quoting Gemini Equipment Co. v. Pennsy Supply, Inc., 595 A.2d 1211 (1991)].
The deference give to a trial judge is logical (although often hard to swallow when on the losing end of a lower court decision). Difficult though it may be to accept at times, an appellate tribunal will accord great reverence to the finding of a trial judge who, after all, had the chance to hear and view the evidence as it was being presented. Whereas a trial judge sees all, an appellate court is confined to review a cold record.
As such, appellate tribunals have concluded that trial courts are in the "best position both to find the facts, and also to determine their weight and credibility." Cummins [quoting West Conshohocken Restaurant Associates, Inc. v. Flanigan, 737 A.2d 1245 (Pa. Super. 1999)]. Even though an appellate court might see fit to agree with the version of the facts espoused by a moving party on appeal, it may not substitute its opinion, concerning the weight of the evidence, for that of a trial court.
One recent exception to this rule was delineated by the Supreme Court in Armbruster. In that appeal, the question focused upon was whether an appellate court may review a properly preserved weight of the evidence claim when the trial judge resigned from the bench without ruling on the allegation of error. Upon review, the Supreme Court held that in such a circumstance, the Superior Court properly reviewed, and denied, the weight claim on its merits.
In so finding, although the Court acknowledged the general rule that a review of a weight of the evidence claim is chiefly reserved for the trial judge who presided over the proceedings in the lower court, interests of justice require that the claim be reviewed by an appellate tribunal rather than consequentially vacating the judgment and remanding the case for a new trial. "To automatically require a new trial in all instances where the trial judge becomes unavailable to rule upon a post-verdict challenge to the weight of the evidence reverses the presumption that credibility is for the fact-finder, makes the extraordinary the ordinary, and wrongly intrudes upon the jury function." The court therefore agreed that where such a claim is properly preserved, but the judge who failed to rule on the allegation is permanently unavailable to do so, the claim must be reviewed by the appellate tribunal in the first instance.
Setting aside the Armbruster exception, when challenging the evidence on appeal, specifically target the relief that you desire and always be cognizant of the appellate courts' limited latitude. By being familiar with the burdens which accompany a weight of the evidence claim, you will place yourself in the best position to defy the odds and to obtain the appellate relief you seek.