J-S83017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSEPH PAUL MCKENZIE,

Appellant No. 225 WDA 2016

Appeal from the Judgment of Sentence November 5, 2015

In the Court of Common Pleas of Greene County

Criminal Division at No(s): CP-30-CR-0000127-2015

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 2, 2016

Appellant, Joseph Paul McKenzie, appeals from the judgment of 

sentence entered following his conviction of possession of a weapon on 

school property, and the summary offenses of trespass and public 

drunkenness. We affirm.

We summarize the history of this case as follows. On the evening of 

April 7, 2015, Appellant, then thirty years old, was discovered by a custodian 

in the hallways of Carmichaels Junior-Senior High School, which was 

undergoing a construction project. The custodian noticed that Appellant was 

carrying a bottle of vodka. The custodian directed Appellant to the exit, but 

the custodian later noticed that Appellant had re-entered the building. As a 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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result, the custodian contacted police. When Appellant was finally 

apprehended, he had accessed the roof in the auditorium portion of the 

building. At that time, the police discovered a bottle of vodka and a penknife on Appellant’s person.

In an information filed on May 21, 2015, Appellant was charged with 

the crimes stated above. On September 16, 2015, a jury convicted 

Appellant of the misdemeanor of possession of a weapon on school property. 

Also on that date, the trial court convicted Appellant of the summary 

offenses of trespass and public drunkenness. On September 28, 2015, new 

counsel entered a praecipe for appearance on behalf of Appellant and filed a 

motion for judgment of acquittal and/or new trial, which challenged the 

verdict on the basis of the weight of the evidence and also presented 

allegations of trial counsel ineffective assistance. The Commonwealth filed a 

motion to strike Appellant’s motion on October 1, 2015. On November 2, 

2015, the trial court filed an order indicating that Appellant’s motion would 

be treated as a post-sentence motion. On November 5, 2015, the trial court 

sentenced Appellant to a term of incarceration of time served to eighteen 

months with immediate parole, plus a fine of $200.00 for the conviction of 

possession of a weapon on school property. Appellant was also sentenced to 

pay a $50.00 fine for each of the two summary offense convictions.

In an order entered on November 6, 2015, the trial court scheduled a 

hearing on Appellant’s outstanding motion, which stated the following:
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The post-verdict motions which we deferred . . . shall be 

heard by the Court on January 12, 2016 to the extent that they 

involve issues other than those available under the Post 

Conviction Relief Act [(“PCRA”), 42 Pa.C.S. §§ 9541-9546]. 

Remedies under [the PCRA] are not available until after any 

appellate relief is no longer available/concluded.

Accordingly, any matter sending [sic] in post-conviction 

relief, such as ineffective assistance of counsel, shall not be 

heard on January 12, 2016.

Order, 11/6/15, at 1.

In its opinion and order filed on January 15, 2016, the trial court 

denied Appellant’s motion and indicated that it limited its review to 

Appellant’s challenge to the weight of the evidence. This timely appeal 

followed. Both Appellant and the trial court have complied with Pa.R.A.P. 

1925.

Appellant presents the following issues for our review:

A. Was the evidence insufficient as a matter of law to convict 

[Appellant] of intentionally carrying a knife onto school property 

in violation of 18 Pa.C.S. § 912(b)?

B. Was the verdict against the weight of the evidence in that the 

Court erred and abused its discretion by holding that “...the 

verdict was not so contrary to the evidence presented as to 

shock one’s sense of justice to the extent required to grant a 

new trial on that evidence alone”?

C. Was defense counsel at the time of trial incompetent as a 

matter of law to such a degree that the trial court should have 

recognized the level of incompetence as the trial was 

proceeding?

Appellant’s Brief at 5.
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Appellant first argues that there was insufficient evidence to support 

his conviction of possession of a weapon on school property. Appellant’s 

Brief at 9-10. In essense, Appellant asserts that he did not enter the school 

building with the conscious object of possession of a weapon. Id. at 9. To 

justify his possession of the weapon, Appellant notes that he “did not even 

think of the fact that he had a knife in his pocket because it’s a habit; he 

always has the knife on his person.” Id. Thus, Appellant claims that the 

Commonwealth failed to establish the necessary mens rea for conviction.

We analyze arguments challenging the sufficiency of the evidence 

under the following parameters:

Our standard when reviewing the sufficiency of the 

evidence is whether the evidence at trial, and all reasonable 

inferences derived therefrom, when viewed in the light most 

favorable to the Commonwealth as verdict-winner, are sufficient 

to establish all elements of the offense beyond a reasonable 

doubt. We may not weigh the evidence or substitute our 

judgment for that of the fact-finder. Additionally, the evidence 

at trial need not preclude every possibility of innocence, and the 

fact-finder is free to resolve any doubts regarding a defendant’s 

guilt unless the evidence is so weak and inconclusive that as a 

matter of law no probability of fact may be drawn from the 

combined circumstances. When evaluating the credibility and 

weight of the evidence, the fact-finder is free to believe all, part 

or none of the evidence. For purposes of our review under these 

principles, we must review the entire record and consider all of 

the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) 

(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super. 

2006)).
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The crime of possession of a weapon on school property is set forth at 

18 Pa.C.S. § 912 and is defined as follows:

(b) Offense defined. — A person commits a misdemeanor of 

the first degree if he possesses a weapon in the buildings of, on 

the grounds of, or in any conveyance providing transportation to 

or from any elementary or secondary publicly-funded educational 

institution, any elementary or secondary private school licensed 

by the Department of Education or any elementary or secondary 

parochial school.

18 Pa.C.S. § 912(b). Section 912 sets forth the applicable definition of 

weapon as follows:

(a) Definition. — Notwithstanding the definition of “weapon” in 

section 907 (relating to possessing instruments of crime), 

“weapon” for purposes of this section shall include but not be 

limited to any knife, cutting instrument, cutting tool, nun-chuck 

stick, firearm, shotgun, rifle and any other tool, instrument or 

implement capable of inflicting serious bodily injury.

18 Pa.C.S. 912(a). In addition, the statute expresses the following defense 

to the crime:

(c) Defense. — It shall be a defense that the weapon is 

possessed and used in conjunction with a lawful supervised 

school activity or course or is possessed for other lawful 

purpose.

18 Pa.C.S. § 912(c).

In Commonwealth v. Giordano, 121 A.3d 998 (Pa. Super. 2015), 

we addressed a challenge to the sufficiency of the evidence in the context of 

section 912 and determined that “[section 912] does not include a specific 

scienter requirement.” Id. at 1005. In addressing the appellant’s claim 

therein, we concluded that the statute is not a strict liability crime. Id. at 
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1006. The Court in Giordano explained the following prior to analyzing the 

merits of the sufficiency issue:

Because section 912 is not a strict liability crime, the 

Commonwealth must prove that [the defendant] acted 

intentionally, knowingly, or recklessly. See 18 Pa.C.S.A. § 

302(b).

Id. See also 18 Pa.C.S. § 302(c) (stating that “[w]hen the culpability 

sufficient to establish a material element of an offense is not prescribed by 

law, such element is established if a person acts intentionally, knowingly or 

recklessly with respect thereto”).

The various levels of culpability are defined in section 302(b), which

provides in relevant part as follows:

(b) Kinds of culpability defined.

(1) A person acts intentionally with respect to a material 

element of an offense when:

(i) if the element involves the nature of his conduct 

or a result thereof, it is his conscious object to 

engage in conduct of that nature or to cause such a 

result; and

(ii) if the element involves the attendant 

circumstances, he is aware of the existence of such 

circumstances or he believes or hopes that they 

exist.

(2) A person acts knowingly with respect to a material 

element of an offense when:

(i) if the element involves the nature of his conduct 

or the attendant circumstances, he is aware that his 

conduct is of that nature or that such circumstances 

exist; and
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(ii) if the element involves a result of his conduct, 

he is aware that it is practically certain that his 

conduct will cause such a result.

(3) A person acts recklessly with respect to a material 

element of an offense when he consciously disregards a 

substantial and unjustifiable risk that the material element exists 

or will result from his conduct. The risk must be of such a 

nature and degree that, considering the nature and intent of the 

actor’s conduct and the circumstances known to him, its 

disregard involves a gross deviation from the standard of 

conduct that a reasonable person would observe in the actor’s 

situation.

18 Pa.C.S. § 302(b)(1)-(3) (emphases added).

Our review of the record reflects that Officer Bryan Smith of the 

Cumberland Police Department testified at trial. N.T., 9/16/15, at 52-70. 

Officer Smith explained that on the evening of April 7, 2015, he was 

dispatched to the Carmichaels School to respond to a report of an unknown 

individual on the property. Id. at 53-54. Officer Smith testified that the 

auditorium area of the building was undergoing construction and was fenced 

off with signs warning against trespassing after dark. Id. at 56. Officer 

Smith also indicated that the fence was ten-feet high. Id. at 57. The officer 

further testified that the police discovered Appellant on the roof above the 

projection area of the auditorium. Id. at 58. The officer also stated that 

when Appellant was apprehended, he had a knife in his pocket. Id. at 59.

Appellant testified on his own behalf at trial. N.T., 9/16/15, at 81-92. 

Appellant stated that he entered the building at approximately 7:30 or 8:00 

p.m. in order to “check out” the progress of the building’s construction 
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project. Id. at 81-82. Appellant explained that he was carrying a halfempty bottle of vodka that he had purchased at approximately 3:00 p.m., 

but he indicated he did not consume the vodka by himself. Id. at 82-83. 

Appellant admitted that when the police discovered him on the roof above 

the auditorium portion of the building, he descended a ladder. Id. at 84. 

Appellant also admitted that he had a knife in his pants pocket. Id. On 

cross-examination, Appellant indicated that he carries the knife every day. 

Id. at 89. Appellant also stated that he carries the knife “all the time.” Id. 

at 90. In addition, Appellant testified as follows:

Q. Do you ever leave home without that knife?

A. No.

Q. So it is safe to say, that if you knew that you had that knife 

on you, in case you would have needed it?

A. Yeah.

* * *

Q. And what is so special about that knife being on [your] right 

[pants pocket] side?

A. Because I’m right handed and that’s where it’s easy to get.

Id.

Under the totality of the circumstances, this evidence, viewed in the 

light most favorable to the Commonwealth, is sufficient to sustain 

Appellant’s conviction of possession of a weapon on school property. 

Indeed, Appellant’s own testimony that he consciously carries the knife on 
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his person every day is sufficient to prove that he acted knowingly in taking 

the weapon onto school property. Therefore, Appellant’s contrary argument 

lacks merit.

Appellant next argues that the jury’s verdict was against the weight of 

the evidence. Appellant’s Brief at 10-11. Beyond citation of appropriate 

legal authority, Appellant’s argument consists of the following two 

sentences:

The evidence which the Commonwealth presented of 

[Appellant] on the property of Carmichaels High School isn’t 

enough to support a conviction of possessing a weapon on 

school property. Allowing the jury to rely solely on that fact, 

shocks the conscience.

Id. at 11.

In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme 

Court set forth the following standards to be employed in addressing 

challenges to the weight of the evidence:

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. Commonwealth v. Widmer, 560 

Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000); 

Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 

1189 (1994). 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. Widmer, 560 

A.2d at 319-20, 744 A.2d at 752. 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.’” Id. 

at 320, 744 A.2d at 752 (citation omitted). It has often been 

stated that “a new trial should be awarded when the jury’s 

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 
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may be given another opportunity to prevail.” Brown, 538 Pa. 

at 435, 648 A.2d at 1189.

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. Brown, 648 A.2d at 1189. 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. Commonwealth v. 

Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). 

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.

Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis 

added).

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 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 
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shows that the action is a result of partiality, 

prejudice, bias or ill-will.

Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v. 

S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-

[11]85 (1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a 

new trial based on a weight of the evidence claim is the least assailable of its 

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

As the trial court aptly stated:

In deciding this issue, we are restricted in our inquiry to 

what we actually saw occur and the evidence presented at trial. 

Acknowledging that limitation, we conclude the verdict was not 

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

justice to the extent required to grant a new trial on that 

evidence alone.

Trial Court Opinion, 1/15/26, at 2.

Based upon our complete review of the record, we are compelled to 

agree with the trial court. Here, the jury was free to believe all, part, or 

none of the evidence against Appellant. The jury weighed the evidence and 

concluded Appellant perpetrated the crime of possession of a weapon on 

school property. This determination is not so contrary to the evidence so as 

to shock one’s sense of justice. We decline Appellant’s invitation to assume 

the role of fact-finder and to reweigh the evidence. Accordingly, we 

conclude that the trial court did not abuse its discretion in refusing to grant 

relief on Appellant’s challenge to the weight of the evidence.
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Appellant last argues that his trial counsel was ineffective. Appellant’s 

Brief at 11-13. Appellant contends that his trial counsel was unprepared by 

failing to meet with Appellant prior to trial and adequately prepare a 

defense. Id. at 12. Appellant alleges that counsel failed to contact potential 

witnesses Appellant had identified to counsel at the time of his preliminary 

hearing. Id. In addition, Appellant claims that trial counsel was ineffective 

for failing to present to the Commonwealth an alternative plea offer 

proffered by Appellant after the Commonwealth had rendered its plea offer. 

Id.

These allegations of ineffectiveness were raised in Appellant’s postverdict motion, which was treated by the trial court as a post-sentence 

motion. Motion, 9/28/15, at 3. However, as we previously observed in this 

memorandum, in scheduling the January 12, 2016 hearing to address 

Appellant’s motion, the trial court expressed that it would not entertain 

Appellant’s allegations of ineffective assistance of counsel. Order 11/6/15, 

at 1. In its decision disposing of Appellant’s motion, the trial court stated 

the following:

As we discussed with [c]ounsel at our oral argument of 

January 12, 2016 much of [Appellant’s] motion . . . involves 

matters which are appropriately determined under the [PCRA]. 

... At our January 12, 2016 proceeding [d]efense counsel 

suggested to the [c]ourt that one issue is appropriate for present 

resolution. That issue is the challenge to the weight of the 

evidence.

* * *
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This ruling is without prejudice to the other issues relating 

to [trial c]ounsel’s effectiveness raised throughout [Appellant’s] 

Motion for Judgment of Acquittal and/or New Trial. . . . We 

preserve the [ineffective assistance of counsel] issues to be 

raised in a [PCRA p]etition at which time [Appellant] may raise 

these and any other claims invoking the [PCRA].

Trial Court Opinion, 1/15/15, at 1-2. Thus, the trial court solely addressed 

the merits of Appellant’s challenge to the weight of the evidence.

Likewise, we decline to address Appellant’s claims of ineffective 

assistance on direct appeal. Our Supreme Court in Commonwealth v. 

Holmes, 79 A.3d 562, 576 (Pa. 2013), reaffirmed the general rule that 

“claims of ineffective assistance of counsel are to be deferred to PCRA 

review; trial courts should not entertain claims of ineffectiveness upon postverdict motions; and such claims should not be reviewed upon direct 

appeal.” In Holmes, the Supreme Court “specifically disapproved of 

expansions of the exception [of] general rule recognized in Commonwealth 

v. Bomar, 826 A.2d 831 (Pa. 2003),” which held that if a claim of 

ineffectiveness of trial counsel had been fully developed at a hearing devoted 

to the question of ineffectiveness, such claim could be reviewed on direct 

appeal. Commonwealth v. Burno, 94 A.3d 956, 970 (Pa. 2014) (citing 

Holmes).

Our Supreme Court recognized only two exceptions to the general rule 

requiring deferral of ineffectiveness claims to PCRA review, both of which fall 

within the discretion of the trial judge. Specifically, the Supreme Court 

explained the following:
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First, we appreciate that there may be extraordinary 

circumstances where a discrete claim (or claims) of trial counsel 

ineffectiveness is apparent from the record and meritorious to 

the extent that immediate consideration best serves the 

interests of justice; and we hold that trial courts retain their 

discretion to entertain such claims.

Second, with respect to other cases and claims, including 

cases such as Bomar ..., where the defendant seeks to litigate 

multiple or prolix claims of counsel ineffectiveness, including 

non-record-based claims, on post-verdict motions and direct 

appeal, we repose discretion in the trial courts to entertain such 

claims, but only if (1) there is good cause shown,1and (2) the 

unitary review so indulged is preceded by the defendant’s 

knowing and express waiver of his entitlement to seek PCRA 

review from his conviction and sentence, including an express 

recognition that the waiver subjects further collateral review to 

the time and serial petition restrictions of the PCRA.2 In other 

words, we adopt a paradigm whereby unitary review may be 

available in such cases only to the extent that it advances (and 

exhausts) PCRA review in time; unlike the so-called Bomar

exception, unitary review would not be made available as an 

accelerated, extra round of collateral attack as of right. This 

exception follows from the suggestions of prior Court majorities 

respecting review of prolix claims, if accompanied by a waiver of 

PCRA review.

1

[I]n short sentence cases the trial court’s 

assessment of good cause should pay particular 

attention to the length of the sentence imposed and 

the effect of the length of the sentence will have on 

the defendant’s realistic prospect to be able to avail 

himself of collateral review under the PCRA.

2 Unitary review describes the defendant’s ability to 

pursue both preserved direct review claims and 

collateral claims of trial counsel ineffectiveness on 

post-sentence motions and direct appeal, and could 

aptly describe both exceptions we recognize today. 

However, for purposes of this appeal, we intend the 

term only to describe the second exception, i.e., that 

hybrid review which would encompass full-blown 

litigation of collateral claims (including non-recordbased claims).
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Holmes, 79 A.3d at 563–564 (citations omitted).

Here, Appellant’s claims of ineffective assistance of trial counsel were 

neither developed at the January 12, 2016 hearing nor ruled upon by the 

trial court. Furthermore, the claims do not fall into either of the Holmes

exceptions which would permit this Court to address them on direct appeal. 

Appellant does not argue, nor do we conclude, that his ineffectiveness claims 

are of such extraordinary magnitude warranting immediate consideration as 

to fall within the first exception. The second exception likewise does not 

apply, as Appellant made no express waiver of future PCRA review. 

Accordingly, we deny relief without prejudice for Appellant to raise any 

cognizable ineffectiveness claims in a timely PCRA petition.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2016