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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-A13022-15


     [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


                                   -2-
J-A13022-15


      [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.

                                      -3-
J-A13022-15


      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

                                    -4-
J-A13022-15


      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.

                                      -5-
J-A13022-15


      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


                                      -6-
J-A13022-15


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.




                                     -7-
J-A13022-15


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.



                                           -8-
J-A13022-15


     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:




                                    -9-
J-A13022-15


          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)).



                                  - 10 -
J-A13022-15


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

                                     - 11 -
J-A13022-15


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




                                        - 12 -
