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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 September 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 burglary, robbery, and criminal 

conspiracy. We affirm. 

 The trial court summarized the history of this case 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 bathroom and two 

bedrooms; and on the third floor there is a third bedroom in the 

attic. [Victim] was home alone in the third floor bedroom at 

approximately 7:30 P.M. on April 25, 2012. As [Victim] was 

watching a movie she heard two male voices downstairs. She 

assumed that the voices were coming from her boyfriend and his 

friend. Then the voices lowered to a whisper as she heard them 

come up the stairs to the third floor. [Victim] was sitting on her 

bed when she saw two males dressed in black at the top of the 

steps, wearing knit hats and something covering part of their 

face. [Victim] could see the area around the bridge of 

[Appellant’s] nose, his eyes and part of his forehead. 
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[Appellant] then approached [Victim and] asked where her 

boyfriend’s stuff was. [Appellant] was standing right in front of 

[Victim] and the other man was beside her when [Appellant] 

pulled out a gun. At this time [Victim] realized that 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 and told 

[Appellant] she knew who he was, and asked him to stop. 

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 District 

Attorney, Carroll pointed out that the photo-array admitted into 

evidence exhibits a pretty distinctive bend in [Appellant’s] nose. 

 During the assault, the other man was grabbing money 

and marijuana that they were stealing. This entire event 

occurred within approximately fifteen (15) minutes. As this 

assault and robbery was occurring, [Victim] repeatedly told 

[Appellant] that she knew who he was and to stop. [Appellant] 

pulled the cover over her face and pushed the gun harder to her 

head. At that time, [Victim] was afraid to tell [Appellant] that 

she knew [his name], because she thought he may kill her. 

[Victim] heard the other man state that he got it, and then 

[Appellant] got off of [Victim]. She ripped the blanket from over 

her head and [Appellant] and the other man were already down 

the steps. 

 When the Police arrived to take the report, she told them 

that she was 110% sure that the one man was [Appellant]. The 

day after the Robbery, [Victim] spoke with Police and 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 Robbery, she was 

positive that it was [Appellant]. Subsequently, [Victim] picked 
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[Appellant] out of an array and she was very adamant that it 

was him. 

 Confronted, [Victim] told the Officers that [Victim] 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 between 

[Appellant] and his girlfriend, and could hear his voice. 

 [Victim] admitted that she smoked a very tiny amount of 

marijuana prior to the Robbery, but denied any other 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 pairs of 

earrings, and approximately four thousand dollars in 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 boyfriend 

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 because two 

people had just broken into her home, and she was afraid that 

they would return. Subsequently, the Police went into the 

vehicle and found the items in the car. Officer Mertel testified 

she was instructed by her boyfriend to remove the drugs, some 

scales and baggies and to place them in the trunk of the car 

before the Police arrived. Both [Victim] and boyfriend 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 filed against her 

would be withdrawn. Indeed, at the Preliminary Hearing, the 

Officers failed to appear. 

Trial Court Opinion, 9/29/14, at 3-6 (citations omitted). 

 Appellant was charged with burglary, robbery, and two counts of 

criminal conspiracy. Appellant proceeded to a nonjury trial, and the trial 

judge convicted Appellant of all charges. 
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 The trial court offered the following additional procedural 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 this case by the 

name of Rodney Steele. ADA Carroll informed the Judge that he 

is a character witness for the defense. Defense Counsel stated: 

“A character witness. That’s all.” The Judge disclosed to 

Counsel that his secretary just informed him she was related to 

Mr. Steele. Defense Counsel Wymard said he was going 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 Defense 

Counsel Wymard it would not affect him one way or the other if 

the witness was related to his secretary. “It’s up to you.” 

Defense Counsel elected to proceed with the Jury Trial waiver 

colloquy without discussing the sidebar matter with [Appellant]. 

 The [trial court] next conducted an extensive on the record 

colloquy, including the essential elements of a Trial. [Appellant] 

further signed a written waiver of his right to a Jury Trial Form 

dated May 13, 2013. 

 At the Sentencing Hearing on September 17, 2013, an oral 

Motion for Extraordinary Relief was sought by new Defense 

Counsel, Lee Rothman. He called previous Defense Counsel, 

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 Defense, Rodney 

Steele was somehow related to his secretary. The Judge further 

indicated that if either side wanted to say or do anything 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 or another. 

Attorney Wymard admitted that he did not relay this information 

to [Appellant], nor did [Appellant] inquire about the sidebar 

conversation. [Appellant] testified that if he would have known 

that information, he would have changed his mind because he 
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would not want the Judge to make a decision in an 

uncomfortable situation, regardless of whether it was in his favor 

or the Commonwealth’s favor. Knowing that information, 

[Appellant] indicated he would have requested a Jury Trial. The 

Judge advised both parties of the relationship. Further, the [trial 

court] stated that this knowledge of the relationship would not 

impede the [trial court’s] ability to render a verdict and just 

verdict in this case. 

Trial Court Opinion, 9/29/14, at 6-8 (citations omitted). 

 The trial court denied the oral motion and then sentenced Appellant to 

a term of incarceration of two years and nine months to six years followed 

by five years of probation for the conviction of burglary, 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 robbery. 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. 1925. 

 Appellant presents the following issues for our review: 

I. Did the trial court abuse its discretion in denying [A]ppellant a 

new trial where [A]ppellant did not make a knowing and 

voluntary waiver of his constitutional right to a jury trial due to 

trial counsel’s ineffectiveness; and is counsel’s ineffectiveness 

apparent on the record? 

II. Did the trial court abuse its discretion in denying [A]ppellant’s 

post sentence motion that the verdict was against the weight of 

the evidence insofar as the identification testimony of the alleged 

victim, who was the only eyewitness, was unreliable due to the 

effects of stress, the short period of exposure, and focus on the 

weapon, and the fact that she had a motive for fabricating her 

testimony? 

Appellant’s Brief at 5. 
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 Appellant first argues that trial counsel’s alleged ineffectiveness 

regarding the side-bar discussion resulted in Appellant making an unknowing 

and involuntary waiver of his right to a jury trial. Appellant avers that trial 

counsel’s ineffectiveness was apparent on the record and meritorious and 

immediate consideration best serves the interests of justice. 

Litigation of ineffectiveness claims are not a proper component of an 

appellant’s direct appeal, and are presumptively deferred for collateral attack 

under the PCRA. See Commonwealth v. Holmes, 79 A.3d 562, 578 (Pa. 

2013) (establishing a deferral rule for ineffectiveness claims litigated after 

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

Holmes Court also recognized two limited exceptions to the deferral rule, 

both falling within the discretion of the trial court. Id. at 563-564. First, the 

Court held that trial courts retain discretion, in extraordinary circumstances, 

to entertain a discrete claim of trial counsel ineffectiveness if the claim is 

both apparent from the record and meritorious. Id. at 563. Second, the 

Court held that trial courts also have discretion to entertain prolix claims of 

ineffectiveness if there is good cause shown and the unitary review 

permitted is preceded by a knowing and express waiver 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 limited exceptions to the 

deferral rule carved out by the Holmes Court. Our review of the record 

reflects that, immediately prior to Appellant’s sentencing, counsel presented 
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an oral motion for extraordinary relief claiming that Appellant was entitled to 

a new trial based on the fact that the waiver of his jury trial was not knowing 

and intelligent. N.T., 9/17/13, at 4-5. The record does not reflect that 

Appellant presented the claim as a challenge to the effective assistance of 

counsel. To the contrary, defense counsel stated that he was not presenting 

a claim of ineffective assistance of counsel. Specifically, Appellant’s counsel 

stated the following: 

[The Assistant District Attorney] had indicated that we’re not 

allowed to ask for ineffective assistance of counsel, and I’m not 

doing so here today. 

N.T., 9/17/13, at 23. 

 The record further reflects that the trial court denied 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 Court will not 

grant the relief requested by counsel. I’ve listened to the 

evidence. I think it at best – and I’m not saying it does, but at 

best it creates an argument of ineffective assistance 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 motions wherein he 

specifically raised a challenge to the effective assistance of counsel and 

alleged that his claim of ineffective assistance was meritorious and apparent 

from the record. Supplemental Post Sentence Motions, 2/4/14, at ¶ 10A. 
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However, on February 7, 2014, the trial court issued an order denying 

Appellant’s post-sentence motion.1

 Accordingly, the trial court did not find the claim to be meritorious and 

apparent from the record so as to require immediate review. Additionally, 

Appellant did not allege any “good cause” for seeking unitary review of his 

ineffectiveness claim and did not state he intended to waive collateral 

review. Thus, neither of the two exceptions outlined 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 direct appeal because claim 

was not apparent from record and the appellant did not waive PCRA review). 

Hence, we dismiss Appellant’s ineffective assistance of counsel issue without 

prejudice to raise this claim in a timely PCRA petition. See Commonwealth 

v. Stollar, 84 A.3d 635, 652 (Pa. 2014) (dismissing, pursuant to Holmes, 

the appellant’s ineffective assistance of counsel claims raised on direct 

appeal without prejudice to pursue them on collateral review). 

____________________________________________ 

1

 The full text of the trial court’s order denying Appellant’s post sentence 

motion provides as follows: 

 AND NOW, to wit, this 7th 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. 
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 Appellant’s second issue is a challenge to the weight of the evidence. 

Specifically, Appellant argues that the trial court abused its discretion in 

denying his post-sentence motion challenging the weight of the evidence 

because the Commonwealth’s sole eyewitness had a motive to fabricate her 

testimony. Appellant also contends that Victim’s testimony was not 

trustworthy because she was under the influence of marijuana during the 

incident, was stressed, and was fixated on the presence of a weapon. 

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 

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: 
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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

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)). 
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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). 

 Our review of the record reflects that the trial court 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 judged the 

credibility of [Victim’s] testimony and found her credible. 

[Victim] testified that when [Appellant] and her were [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 positive that one of 

the perpetrators was [Appellant]. [Victim] indicated that she 

recognized not only his voice, but his crooked nose. [Victim] 

stated that she was more than 100% sure of her identification of 

[Appellant]. Moreover, [Victim] picked [Appellant] out of a 

photo array and continued to be adamant that the perpetrator 

was [Appellant]. 

 Therefore, the [trial court] concludes that the verdict 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, was free to believe all, 

part, or none of the evidence against Appellant. The trial judge weighed the 

evidence and concluded Appellant perpetrated the crimes in question. This 

determination is not so contrary to the evidence so as to shock one’s sense 
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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 determining that Appellant’s weight of the 

evidence claim lacked merit. Thus, this claim fails to provide Appellant 

relief. 

 Appellant’s ineffective assistance of counsel claim is dismissed without 

prejudice. Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 6/5/2015