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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

knife 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 half-

empty 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 post-

verdict 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 post-

verdict 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,1 and (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-record-
          based 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




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