J-A06002-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVE CZAKO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 618 WDA 2021

Appeal from the Judgment of Sentence Entered June 15, 2018

In the Court of Common 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 relevant to this decision.1 Upon careful review, we 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

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* 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 assault of a person under 

the age of 16. 18 Pa.C.S.A. §§ 3121(a)(1), 3125(a)(7), 3125(a)(8).
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* * *

The Commonwealth’s evidence relied solely upon testimony, 

uncorroborated by direct or physical evidence.

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. 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 PCRA petition asserting that 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 court 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 the Commonwealth vs. 
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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 conclusion 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 testimony, 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. The trial court ordered 

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

appeal, and Appellant complied. He asserted:

[Appellant] contends that the court erred in denying his motion in 

arrest of judgment, which was advanced 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 

motion in arrest of judgment and at Argument, 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 court 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 this 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.

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2 The appellant in Ramtahal challenged both sufficiency and weight of the 

evidence. Ramtahal, 33 A.3d at 607-09.
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Motions in arrest of judgment are evaluated under a 

sufficiency of the evidence standard, not a weight of the 

evidence standard as Appellant argues [in his Rule 1925(b) 

statement]. See Commonwealth v. Robinson, 33 A.3d 89, 94 

(Pa. Super. 2011) (stating “in passing upon a motion in arrest of 

judgment, the sufficiency 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 true motion in arrest of

judgment, it would have been more appropriately entitled a 

motion for judgment of acquittal. Id. However, as Appellant 

has conflated one evidentiary standard with a mismatched 

motion, this court is left to inquire as to what were 

Appellant’s true intentions.

* * *

[F]inally, to the extent that 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 conjunction 

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 judgment 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.
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Although Appellant does reference 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 court erred and abused its 

discretion in not so finding,” he 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 court. 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 conjunction 

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 orally 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, 

[Appellant’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] 3:19-20) 

(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 court. Not only was this court 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 evidence 
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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 review is de

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

(citation omitted). Our 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, the Commonwealth advised 

this Court it would not be filing an appellate brief.
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involves a review 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. Instead, 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-sentence 

motions which stated: “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 of justice.” Id. at 28 (quoting Pa.R.A.P. 1925(b) 

Statement, 6/16/21, at 2-3 (unnumbered)). Appellant asks 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 prepare 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 after 
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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 to 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 decision 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 his 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 characterized his 

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

(citation omitted). In finding waiver, we explained 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 reasoned: 
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The 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 

weight of the evidence.

Id. at 1027-28. Accordingly, we held appellant waived his weight claim for 

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

Commonwealth 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, stating: “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, although Appellant is correct that in Kirkman, supra, this Court 

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

Brief at 33, n.3, unlike this 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: 3/29/2022