J-A13022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. CODY ANTHONY CATERINO, Appellant No. 383 WDA 2014

Appeal from the Judgment of Sentence Entered Septem ber 17, 2013

In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008487-2012

BEFORE: PANELLA, SHOGAN, and OTT, JJ. MEMORANDUM BY SHOGAN, J.: FILED JUNE 5, 2015 Appellant, Cody Anthony Caterino, appeals from the judgment of sentence entered following his convictions of burgl ary, robbery, and criminal conspiracy. We affirm. The trial court summarized the history of this cas e as follows: On April 25, 2012, [Victim, a female,] resided . . . in Squirrel Hill with her mother and her boyfriend. There are three floors on this residence; when you enter the home there is a living room, dining room and kitchen; upstairs there is a bathro om and two bedrooms; and on the third floor there is a third b edroom in the attic. [Victim] was home alone in the third floor bedroom at approximately 7:30 P.M. on April 25, 2012. As [Vic tim] was watching a movie she heard two male voices downstai rs. She assumed that the voices were coming from her boyfri end and his friend. Then the voices lowered to a whisper as sh e heard them come up the stairs to the third floor. [Victim] wa s sitting on her bed when she saw two males dressed in black at the top of the steps, wearing knit hats and something covering par t of their face. [Victim] could see the area around the bridg e of [Appellant’s] nose, his eyes and part of his forehe ad.J-A13022-15

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[Appellant] then approached [Victim and] asked wher e her boyfriend’s stuff was. [Appellant] was standing ri ght in front of [Victim] and the other man was beside her when [App ellant] pulled out a gun. At this time [Victim] realized t hat the man was [Appellant]. [Appellant] was less than five (5) feet away from [Victim] when he told her to get down. According to [Victim ] she said “No” and [Appellant] proceeded to push her onto her bed and put the gun to her head. [Victim] was facing him a nd told [Appellant] she knew who he was, and asked him to s top. Again, [Victim] testified that as they were face to face she realized he was [Appellant]. [Victim] stated she recognized [Appellant] because of her knowledge of him from High School with his distinct crooked nose and voice. [Appellant] testified that he had surgery on his nose a few weeks after graduation, approximately a year before this Robbery. However, in her closing, Assistant D istrict Attorney, Carroll pointed out that the photo-array admitted into evidence exhibits a pretty distinctive bend in [App ellant’s] nose. During the assault, the other man was grabbing mon ey and marijuana that they were stealing. This entire event occurred within approximately fifteen (15) minutes. As this assault and robbery was occurring, [Victim] repeate dly told [Appellant] that she knew who he was and to stop. [Appellant] pulled the cover over her face and pushed the gun h arder to her head. At that time, [Victim] was afraid to tell [A ppellant] that she knew [his name], because she thought he may kil l her. [Victim] heard the other man state that he got it, and then [Appellant] got off of [Victim]. She ripped the bl anket from over her head and [Appellant] and the other man were alr eady down the steps. When the Police arrived to take the report, she to ld them that she was 110% sure that the one man was [Appell ant]. The day after the Robbery, [Victim] spoke with Police a nd again stated that she knew the one male to be [Appellant] . On a separate occasion, [Victim] spoke with Officer Gray , and again stated that she knew [Appellant] from High School. [Victim] told Officer Gray that as events went on during the Robb ery, she was positive that it was [Appellant]. Subsequently, [V ictim] pickedJ-A13022-15

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[Appellant] out of an array and she was very adaman t that it was him. Confronted, [Victim] told the Officers that [Victi m] had a class with a girlfriend of [Appellant’s] in [Victim ’s] junior year of High School. She stated [Appellant] never spoke to her in High School, however, [Victim] overheard conversations b etween [Appellant] and his girlfriend, and could hear his voice. [Victim] admitted that she smoked a very tiny amou nt of marijuana prior to the Robbery, but denied any othe r use of drugs or alcohol. [Victim] also admitted that her boyfriend was selling marijuana. Officer Mertel testified that [Victim] stated that there were a couple of the mason jars with weed inside, two pa irs of earrings, and approximately four thousand dollars i n cash stolen by the two males. [Victim] testified she told the Officers that the males went through her jewelry, but wasn’t sure if anything was missing. [Victim] testified that she spoke with her boyfrie nd immediately after this incident and he told [Victim ] he was calling the Police. [Victim] testified that it was her decision to take the remaining marijuana, etc., to the car beca use two people had just broken into her home, and she was a fraid that they would return. Subsequently, the Police went i nto the vehicle and found the items in the car. Officer Me rtel testified she was instructed by her boyfriend to remove the d rugs, some scales and baggies and to place them in the trunk o f the car before the Police arrived. Both [Victim] and boyfr iend were criminally charged. However, prior to the Hearing all charges were dismissed. [Victim] stated she was never told [that] if she testifie[d] against [Appellant] that the charges fi led against her would be withdrawn. Indeed, at the Preliminary Hea ring, the Officers failed to appear. Trial Court Opinion, 9/29/14, at 3-6 (citations omi tted). Appellant was charged with burglary, robbery, and two counts of criminal conspiracy. Appellant proceeded to a nonj ury trial, and the trial judge convicted Appellant of all charges.J-A13022-15

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The trial court offered the following additional p rocedural history, which is relevant to this appeal: Prior to commencement of the Non-Jury Trial on May 13, 2013, [the trial court] called Counsel to sidebar. The [trial court] inquired if there is a Police Officer in thi s case by the name of Rodney Steele. ADA Carroll informed the Ju dge that he is a character witness for the defense. Defense Co unsel stated: “A character witness. That’s all.” The Judge disc losed to Counsel that his secretary just informed him she wa s related to Mr. Steele. Defense Counsel Wymard said he was goi ng to call him, but if that creates a problem, he doesn’t have to. ADA Carroll indicated she did not have an issue with it

. The [trial court] then stated to ADA Carroll and D efense Counsel Wymard it would not affect him one way or t he other if the witness was related to his secretary. “It’s up to you.” Defense Counsel elected to proceed with the Jury Tr ial waiver colloquy without discussing the sidebar matter with [Appellant]. The [trial court] next conducted an extensive on t he record colloquy, including the essential elements of a Tri al. [Appellant] further signed a written waiver of his right to a J ury Trial Form dated May 13, 2013. At the Sentencing Hearing on September 17, 2013, a n oral Motion for Extraordinary Relief was sought by new D efense Counsel, Lee Rothman. He called previous Defense C ounsel, James Wymard to testify. Attorney Wymard testified that there was a sidebar immediately prior to the beginning of the Bench Trial. The Judge disclosed to both Defense Counsel and Counsel for the Commonwealth that it came to his attention that a possible character witness being called by the Defe nse, Rodney Steele was somehow related to his secretary. The J udge further indicated that if either side wanted to say or do a nything they had that option. Attorney Wymard indicated he had no problem proceeding. The Judge stated that the relationship between Rodney Steele, a possible character witness for the Defense, and his secretary would not affect his ruling one way o r another. Attorney Wymard admitted that he did not relay this information to [Appellant], nor did [Appellant] inquire about t he sidebar conversation. [Appellant] testified that if he wou ld have known that information, he would have changed his mind be cause heJ-A13022-15

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would not want the Judge to make a decision in an uncomfortable situation, regardless of whether it w as in his favor or the Commonwealth’s favor. Knowing that informat ion, [Appellant] indicated he would have requested a Jur y Trial. The Judge advised both parties of the relationship. Fu rther, the [trial court] stated that this knowledge of the relationsh ip would not impede the [trial court’s] ability to render a verd ict and just verdict in this case. Trial Court Opinion, 9/29/14, at 6-8 (citations omi tted).

The trial court denied the oral motion and then se ntenced Appellant to a term of incarceration of two years and nine month s to six years followed by five years of probation for the conviction of bu rglary, and a consecutive term of incarceration of two years and nine months to six years followed by five years of probation for the conviction of robbe ry. No further penalty was imposed for the conspiracy convictions. Appellant filed post-sentence motions, which the trial court denied. This appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 19 25. Appellant presents the following issues for our re view: I. Did the trial court abuse its discretion in deny ing [A]ppellant a new trial where [A]ppellant did not make a knowing and voluntary waiver of his constitutional right to a j ury trial due to trial counsel’s ineffectiveness; and is counsel’s i neffectiveness apparent on the record?

II. Did the trial court abuse its discretion in den ying [A]ppellant’s post sentence motion that the verdict was against t he weight of the evidence insofar as the identification testimon y of the alleged victim, who was the only eyewitness, was unreliable due to the effects of stress, the short period of exposure, an d focus on the weapon, and the fact that she had a motive for fabr icating her testimony? Appellant’s Brief at 5.J-A13022-15

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Appellant first argues that trial counsel’s allege d ineffectiveness regarding the side-bar discussion resulted in Appel lant making an unknowing and involuntary waiver of his right to a jury trial . Appellant avers that trial counsel’s ineffectiveness was apparent on the recor d and meritorious and

immediate consideration best serves the interests o f justice. Litigation of ineffectiveness claims are not a prop er component of an appellant’s direct appeal, and are presumptively de ferred for collateral attack

under the PCRA. See Commonwealth v. Holmes , 79 A.3d 562, 578 (Pa. 2013) (establishing a deferral rule for ineffective ness claims litigated after

the decision in Commonwealth v. Grant , 813 A.2d 726 (Pa. 2002)). The

Holmes Court also recognized two limited exceptions to th e deferral rule, both falling within the discretion of the trial cou rt. Id . at 563-564. First, the Court held that trial courts retain discretion, in extraordinary circumstances,

to entertain a discrete claim of trial counsel inef fectiveness if the claim is both apparent from the record and meritorious. Id . at 563. Second, the

Court held that trial courts also have discretion t o entertain prolix claims of ineffectiveness if there is good cause shown and th e unitary review permitted is preceded by a knowing and express waiv er by the defendant of the right to seek review under the PCRA. Id . at 564.

The facts of this case do not fall within the limi ted exceptions to the deferral rule carved out by the Holmes Court. Our review of the record reflects that, immediately prior to Appellant’s sen tencing, counsel presentedJ-A13022-15

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an oral motion for extraordinary relief claiming th at Appellant was entitled to

a new trial based on the fact that the waiver of hi s jury trial was not knowing and intelligent. N.T., 9/17/13, at 4-5. The recor d does not reflect that Appellant presented the claim as a challenge to the effective assistance of counsel. To the contrary, defense counsel stated t hat he was not presenting a claim of ineffective assistance of counsel. Spec ifically, Appellant’s counsel stated the following: [The Assistant District Attorney] had indicated tha t we’re not allowed to ask for ineffective assistance of counse l, and I’m not doing so here today. N.T., 9/17/13, at 23.

The record further reflects that the trial court d enied Appellant’s oral motion for extraordinary relief. In doing so, the trial court stated the following: [W]ith regard to [Appellant’s] oral motion, the Cou rt will not grant the relief requested by counsel. I’ve listen ed to the evidence. I think it at best – and I’m not saying it does, but at best it creates an argument of ineffective assistan ce of counsel which Commonwealth v. Grant precludes such an argument at this point in time. N.T., 9/17/13, at 36-37. Subsequently, Appellant filed post-sentence motion s wherein he specifically raised a challenge to the effective as sistance of counsel and alleged that his claim of ineffective assistance wa s meritorious and apparent from the record. Supplemental Post Sentence Motion s, 2/4/14, at ¶ 10A.J-A13022-15

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However, on February 7, 2014, the trial court issue d an order denying Appellant’s post-sentence motion. 1 Accordingly, the trial court did not find the clai m to be meritorious and apparent from the record so as to require immediate review. Additionally, Appellant did not allege any “good cause” for seeki ng unitary review of his

ineffectiveness claim and did not state he intended to waive collateral review. Thus, neither of the two exceptions outlin ed in Holmes has been met here. Therefore, Appellant cannot seek review of his ineffectiveness claim on direct appeal. Holmes , 79 A.3d 563-564; see also

Commonwealth v. Britt , 83 A.3d 198, 204 (Pa. Super. 2013) (ineffective

assistance of counsel claim not reviewable on direc t appeal because claim was not apparent from record and the appellant did not waive PCRA review). Hence, we dismiss Appellant’s ineffective assistanc e of counsel issue without prejudice to raise this claim in a timely PCRA peti tion. See Commonwealth

v. Stollar , 84 A.3d 635, 652 (Pa. 2014) (dismissing, pursuant to Holmes , the appellant’s ineffective assistance of counsel c laims raised on direct appeal without prejudice to pursue them on collater al review).

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1 The full text of the trial court’s order denying A ppellant’s post sentence motion provides as follows: AND NOW, to wit, this 7 th day of February, 2014, it is hereby ORDERED, ADJUDGED, and DECREED that the post sentence motion filed by [Appellant], is Denied. Order, 2/7/14, at 1.J-A13022-15

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Appellant’s second issue is a challenge to the wei ght of the evidence. Specifically, Appellant argues that the trial court abused its discretion in denying his post-sentence motion challenging the we ight of the evidence because the Commonwealth’s sole eyewitness had a mo tive to fabricate her testimony. Appellant also contends that Victim’s t estimony was not trustworthy because she was under the influence of marijuana during the incident, was stressed, and was fixated on the pres ence of a weapon.

In Commonwealth v. Clay , 64 A.3d 1049 (Pa. 2013), our Supreme Court set forth the following standards to be emplo yed 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 bec ause 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 igno re them or to give them equal weight with all the facts is to den y 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 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 presen ted with a weight of the evidence claim is distinct fro m the standard of review applied by the trial court:J-A13022-15

- 10 - Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying quest ion 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 giv e the gravest consideration to the findings and reaso ns advanced by the trial judge when reviewing a trial court’s determination that the verdict is against t he 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 n ew trial based on a challenge to the weight of the evidence is unf ettered. 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 th e law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must b e exercised on the foundation of reason, as opposed t o prejudice, personal motivations, caprice or arbitra ry 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. 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)).J-A13022-15

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Clay , 64 A.3d at 1054-1055. “Thus, the trial court’s d enial of a motion for a new trial based on a weight of the evidence claim i s the least assailable of its rulings.” Commonwealth v. Diggs , 949 A.2d 873, 879-880 (Pa. 2008).

Our review of the record reflects that the trial c ourt addressed Appellant’s challenge to the weight of the evidence and determined that it lacked merit. Specifically, the trial court stated the following: [The trial court] was the finder of facts. It jud ged the credibility of [Victim’s] testimony and found her c redible. [Victim] testified that when [Appellant] and her we re [face] to face [Victim] realized it was [Appellant]. T.T. at p. 15. [Victim] did not have classes with [Appellant], however, he would visit a classmate of [Victim’s] in her homeroom. T.T. at p. 37. [Victim] overheard conversations they had in their homeroom. T.T. at p. 50. Detective Gray corroborated that [Victim] told him she had homeroom with [Appellant’s] girlfriend, as [Victim] had explained in Court. T.T. at p. 76. [Victim] told numerous Officers involved in the investigation she was posi tive that one of the perpetrators was [Appellant]. [Victim] indicat ed that she recognized not only his voice, but his crooked nose . [Victim] stated that she was more than 100% sure of her iden tification of [Appellant]. Moreover, [Victim] picked [Appellant] out of a photo array and continued to be adamant that the pe rpetrator was [Appellant]. Therefore, the [trial court] concludes that the ve rdict is not against the weight of the evidence.

The claim is without merit. Trial Court Opinion, 9/29/14, at 25-26 (emphasis in original). The trial court, sitting as the finder of fact, wa s free to believe all, part, or none of the evidence against Appellant. T he trial judge weighed the evidence and concluded Appellant perpetrated the cr imes in question. This determination is not so contrary to the evidence so as to shock one’s senseJ-A13022-15

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of justice. We decline Appellant’s invitation to a ssume the role of fact finder and to reweigh the evidence. Accordingly, we concl ude that the trial court did not abuse its discretion in determining that Ap pellant’s weight of the evidence claim lacked merit. Thus, this claim fail s to provide Appellant

relief. Appellant’s ineffective assistance of counsel clai m is dismissed without prejudice. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/5/2015