J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVE CZAKO

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 618 WDA 2021
Appeal from the Judgment of Sentence Entered June 15, 2018 In the Court of Co mmon Pleas of Washington County Criminal Division at CP

- 63

- CR

- 0002749

- 2016

BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J. *
MEMORANDUM BY MURRAY, J.: FILED: MARCH 29, 2022

Steve Czako (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of multiple sex offenses , the details of

which are not relev ant to t his decision. 1 Upon careful review, w e affirm.

Appellant was tried and convicted in March 2018. On June 15, 2018,

the trial court sentenced Appellant to an aggregate 25

– 60 years of

imprisonment. Appellant timely filed post

- sentence motions , arguing , in

relevant part :

COUNT ONE: MOTION IN ARREST OF JUDGMENT

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 Appellant’s twelve convictions include two counts of rape by forcible compulsion; one count of aggravated indecent assault of a person under the age of 13; and two counts of aggravated indecent assau lt of a person under the age of 16. 18 Pa.C.S.A. §§ 3121(a)(1), 3125(a)(7), 3125(a)(8).J

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- 2

- * * *

The Commonwealth’s evidence relied solely upon testimony, uncorroborated by direct or physical evidence.

The victim’s [ sic ] and other Commonwealth witnesses’ testimony were inconsi stent and incredible to the degree that the jury’s verdict was so contrary to the weight of the evidence so as to shock one’s sense of justice. Commonwealth v. Ramtahal , 33 A.3d 602 (Pa. 2011).

WHEREFORE, [Appellant] respectfully requests that the Court enter[] an order in arrest of judgment and reverse[] the jury’s verdicts.

Post

- Sentence Motions, 7/6/18, at 1

- 2 (paragraph numbering omitted).

By order entered November 7, 2018 , the trial court denied Appellant’s

post

- sentence motions . Appellant did not file a direct appeal.

On June 17, 2019, Appellant timely filed a pro se petition pursuant to

the Post Conviction Relief Act (PCRA) , 42 Pa.C. S.A. §§ 9541

- 9546. Appellant

obtained counsel , who filed an amended P CRA petition asserting t hat trial

counsel was ineffective for failing to file a requested direct appeal , and seeking

an evidentiary hearing . The trial court granted the petition on April 27, 2021,

and reinstated Appellant’s direct appeal rights

. Three days later, the trial cour t held a hearing on the aforementioned

post

- sentence motions. Appellant’s counsel argued:

The first is a Motion in Arrest of Judgment, Your Honor, and the only authority that [Appellant’s trial counsel who had filed the post

- sentence motions] raised was t he Commonwealth vs.J

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- 3

-

Ramtahal case, [ 2 ] which indicates that the evidence doesn’t

– outweighs the verdict. In other words, the evidence isn’t sufficient. [Appellant] argues that the evidence presented in the trial was not enough to reach a logical conclusi on by the jury of guilt beyond a reasonable doubt, and, in particular, [Appellant] has instructed previous counsel, through written correspondence, that he indicates that all of the evidence was circumstantial in nature, not physical or eye

- witness testimo ny, and there was no diagrams of the scene or any other investigation done with regards to preserving evidence.

N.T., 4/30/21, at 3

- 4 (footnote added). The trial court denied Appellant’s

post

- sentence motions. Id. at 5.

Appellant timely appealed, nunc pro tunc

. T he trial court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal , and Appellant complied

. He assert ed :
[Appellant] contends that the c ourt erred in denying his m otion i n
a rrest o f j udgment, which was adv anced in his post

- sentence motion and during oral argument on the same (the “Argument”). For the reasons advanced by [Appellant’s] prior counsel in the

m otion i n a rrest o f j udgment and at Argument, the jury’s verdict in the above

- captioned matter is so co ntrary to the evidence as to shock one’s sense of justice, and this c ourt erred and abused its discretion in not so finding.

Pa.R.A.P. 1925(b) Statement, 6/16/21, at 2

- 3 (unnumbered ; unnecessary
capitalization omitted ).

The trial court concluded Appellant waived th is issue. The court detailed

its reasoning as follows :

Appellant ’ s first misstep occurs in asserting an improper standard in conjunction with his Motion in Arrest of Judgment.

_________________ __________ ______ ____ _______

2 The appellant in Ramtahal challenged both sufficiency and weight of the evidence. Ramtahal , 33 A.3d at 607

- 09.J

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Motions in arrest of judgment are evaluated under a suffici ency of the evidence standard, not a weight of the evidence standard as Appellant argues [in his Rule 1925(b) statement]

. See Commonwea l th v. Robinson , 33 A.3d 89, 94 (Pa. Super. 2011) (stating “i n passing upon a motion in arrest of judgment, the sufficie ncy of the evidence must be evaluated upon the entire trial record; all of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. ” ); Commonwealth v. Kirkman , 399 A.2d 720 , 722 (Pa. Super. 1979); Commonwealth v. Nelson , 369 A.2d 279, 280 (Pa. Super. 1976).

Further, it should be noted that a 1993 amendment to Pennsylvania Rule of Criminal Procedure 606 changed the terminology to “ motion for judgment of acquittal ” for challenges to the sufficiency of the evidence, retiring the use of “ motion in arrest of judgment ” for the same. Pa.R.Crim

. P. 606, cmt. 1. As such, if Appellant ’ s desire was to file a t r ue motion in arrest of judgment, it would have been more appropr iately entitled a motion f o r judgment of acquittal. Id. However, as Appellant has conflated one evidentiary standard with a mismatched motion, this c ourt is left to inquire as to what were Appellant ’ s true intentions

.

* * *

[F] inally, t o the extent tha t Appellant wishes to argue weight of the evidence on appeal, he has waived the right to do so as he chose the wrong vehicle to make such a challenge . The Pennsylvania Superior Court has previously refused to entertain motions in arrest of judgment in con junction with a weight of the evidence standard, holding that sufficiency of the evidence is the only appropriate course upon which an Appellant may seek relief. Kirkman , 399 A.2d at 722

... (“ the assertion that the verdict is against the weight of the evidence is not a proper consideration in passing on a motion in arrest of judgment ” [(emphasis added)] ). Further, it should be noted that according to the 1993 amendment of Pennsylvania Rule of Criminal Procedure 606, comment 1, motions in arrest of judg ment are more appropriate for raising a challenge “based on the court’s jurisdiction, on double jeopardy, or on the statute of limitations,” rather than raising any type of evidentiary challenges. Pa.R.Crim.P. 606, cmt. 1.J

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- Although Appellant does referen ce weight of the evidence language in his 1925(b) statement by stating “the jury’s verdict in the above

- captioned matter is so contrary to the evidence as to shock one’s sense of justice, and this c ourt erred and abused its discretion in not so finding,” h e does so in reference to his Motion in Arrest of Judgment, which as stated previously, requires a sufficiency of the evidence standard. See Robinson , 33 A.3d at 94 (Pa. Super. 2011). Because of this, Appellant not only confuses the issues, but also the c ourt. Had Appellant actually wished to raise weight of the evidence on this appeal, the proper method to do so would have been in the form of a motion for new trial in his post

- sentence motions, pursuant to Rule 607 of the Pennsylvania Rules of Criminal Procedure. Pa.R.Crim.P. 607 (“a claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial ... in a post

- sentence motion.”). Appellant’s inability to assert the proper standard in conjunct ion with the proper motion in order to seek the relief he desires should result in an automatic waiver of this issue on appeal.

In the alternative, should the Superior Court determine that Appellant has properly raised the issue of weight of the evidence, the issue should still be deemed waived because it was not properly preserved at the trial court level. According to Pennsylvania Rule of Criminal Procedure 607, weight of the evidence must be preserved in a post

- sentence motion or prior to sentencing or ally or through a written motion. Pa.R.Crim.P. 607. However, here Appellant failed to preserve his right to raise weight of the evidence on appeal by arguing sufficiency of the evidence during his Post

- Sentence Motion Hearing. During oral argument, [App ellant’s counsel] stated “the only authority that [Appellant’s trial counsel who filed the post

- sentence motions] raised was the Commonwealth v. Ramtahal case, which indicates that the evidence doesn’t

— outweighs the verdict [ sic ]. In, other words, the evidence isn ’ t sufficient .” ( [ N.T., 4/30/21, at ] 3:19

- 2 0 ) (emphasis added). Despite [ trial counsel’s] attempt to raise a weight of the evidence standard within his Motion in Arrest of Judgment, even though improper, [Appellant’s current counsel] redefined the argument to raise sufficiency of the evidence as the focal issue facing this c ourt. Not only was this c ourt faced with a motion traditionally associated with a sufficiency of the evidence standard, but it was also presented with argument on the same. Because of this, weight of the evidenceJ

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was not properly preserved and thus, Appellant has forfeited the right to raise any such challenge here.

Trial Court Opinion, 7/14/21, at 6

- 9 (emphasis added)

. On appeal, Appellant presents a single issue for our consideration:

WHETHER THE TRIAL COURT ERRED IN FINDING [APPELLANT’S] WEIGHT OF THE EVIDENCE CLAIM WAS WAIVED WHERE SAID CLAIM WAS ADVANCED IN A POSTSENTENCE MOTION, RAISED AT ORAL ARGUMENT ON THAT POST

- SENTENCE MOTION, AND INCLUDED IN A TIMELY FILED Pa.R .A.P. 1925(b) STATEMENT; AND THE TRIAL COURT SHOULD THUS BE REQUIRED TO PREPARE A SUPPLEMENTAL Pa.R.A.P. 1925(a) OPINION ADDRESSING THE MERITS OF [APPELLANT’S] WEIGHT OF THE EVIDENCE CLAIM AND [] PERMITTED [ APPELLANT ] TO FILE A SUPPLEMENTAL APPELLATE BRIEF ADDRESSING THE TRIAL COURT’S EXERCISE OF DISCRETION IN DENYING HIS WEIGHT OF THE EVIDENCE CLAIM?

Appellant’s Brief at 8. 3

Our Supreme Court has instructed: “ The applicability of waiver

principles presents a question of law, over which our standard of re view is de

novo .” Temple v. Providence Care Ctr., LLC , 233 A.3d 750, 760 (Pa. 2020)

(citation omitted). O ur scope of review is plenary. Id.

In challenging the trial court ’s conclusion that he waived his weight

claim, Appellant concedes that trial counsel, in post

- sentence motions , improperly used the term

“arrest of judgment ”

– an outdated label/term

– [which] applies to sufficiency of the evidence claims. That said, the actual content of [counsel’s] argument pertained to weight of the evidence, not sufficiency. Indeed, a sufficiency of the evidence challenge

_________________ __________ ______ ____ _______

3 By correspondence dated November 30, 2021, t he Com monwealth advised this Court it would not be filing an appellate brief.J

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involves a revi ew of the record to determine whether the Commonwealth presented proof of each material element of the crimes charged. [Appellant’s counsel], however, did not identify any element(s) of the offenses lodged against [Appellant] lacking sufficient proof. In stead, he challenged the quality of the Commonwealth’s testimony, asserting that the same was uncorroborated, inconsistent, and incredible.

Appellant’s Brief at 30

- 31 (citations omitted)

. Nonetheless, Appellant emphasizes the language in his post

- sentenc e

motion s which stat ed : “The victim’s [ sic ] and other Commonwealth witnesses’

testimony were inconsistent and incredible to the degree that the jury’s verdict

was so contrary to the weight of the evidence so as to shock one’s sense of

justice.” Appellant’s Brief at 27 (citing Post

- Sentence Motions, 7/6/18, at 2 )

. Appellant further references his Rule 1925(b) statement, in which he asserts ,

“ the jury’s verdict in the above

- captioned matter is so contrary to the evidence

as to shock one’s sense o f justice.” Id. at 28 ( quo ting Pa.R.A.P. 1925(b)

Statement, 6/16/21, at 2

- 3 (unnumbered) )

. Appellant ask s that we “not find

waiver based on the name of a motion when the content of the motion

preserved the claim now being advanced.” Id. at 33 (footnote omitted).

Appellant requests remand for the trial court to prepar e a supplemental

Pa.R.A.P. 1925(a) opinion addressing his weight claim ( and for Appellant to

file a responsive appellate brief )

. Id. at 29

- 30.

Upon review, we are constrained to agree with the trial court . Rule of

Criminal Procedure 607 requires a defendant to raise a weight claim in a

motion for a new trial on the record, either before, during, or afterJ

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sentence. Pa.R.Crim.P. 607(A). Failure to do so constitutes waiver. See

Commonwealth v. Sherwood , 982 A.2d 483, 494 (Pa. 2009)

(appellant waived weight claim for failure to raise it before the trial court as

required by Rule 607) ; see also Trial Court Opinion, 7/14/21, at 8 (same)

. Here, as in Sherwood , “ Appellant’s failure t o challenge the weight of the

evidence before the trial court deprived that court of an opportunity to

exercise discretion on the question of whether to grant a new trial.”

Sherwood , 982 A.2d at 494 ; see also In re F.C., III , 2 A.3d 1201, 1212

(Pa. 2010) (jurisprudential mandate of waiver is “grounded upon the principle

that a trial court ... must be given the opportunity to correct its errors as early

as possible,” which “advances the orderly and efficient use of our judicial

resources.”).

This Court’s dec ision in Commonwealth v. Smith , 853 A.2d 1020 (Pa.

Super. 2004) , is instructive

. In Smith , we addressed whether the defendant

waived his challenge to the weight of the evidence where hi s counsel , at

sentencing, stated: “ Your Honor, first off, under Rule 607, I am going to make

a motion for judgment of acquittal,” but then “specifically characterize d his

complaint as being that there ‘was insufficient evidence.’” Id. at 1027

(citation omitted). In finding waiver, we explain ed the “critical” distinction

between weight and sufficiency challenges. Id. at 1028 ; see also id. at 1027

(noting defendant’s counsel stated he moved for judgment of acquittal, which

is associated with a sufficiency challenge, not weight). We reason ed :J

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T he only suggestion that [defendant’s] counsel argued against the weight of the evidence was that he cited [R]ule 607. A mere mention of the rule number under which challenges to the weight of the evidence are made does not constitute a challenge to the

we ight of the evidence.

Id. at 1027

- 28. Accordingly, w e held a ppellant waived his weight claim for

failure to raise it before the trial court. Id. at 1028; s ee also

C ommonwealth v. Platts , 226 A.3d 646, at **7

- 8 (Pa. Super. 2020)

(unpublished memorandum) (appellant waived weight claim where he moved

for “judgment of acquittal” at sentencing , stat ing : “He did not move for a new

trial. Because Appellant never moved for a new trial as required under Rule

607 , he has waived his weight of the evidence challenges.”)

. Finally, alt hough Appellant is correct that in Kirkman , supra , this Court

remanded for the trial court to address a weight challenge , s ee Appellant’s

Brief at 33, n.3 , u nlike th is case, the defendant in Kirkman , in addition to

filing a motion in arrest of judgment, “ filed a motion for a new trial which

was not acted upon by the court below.” Kirkman , 399 A.2d at 722

(emphasis added)

. Thus, Kirkman is not on point.

Judgment of sentence affirmed

. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3 /2 9 /202 2