J-S60041-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   Appellee              :
                                         :
                     v.                  :
                                         :
VINCENT ANTHONY CATRONE,                 :
                                         :
                   Appellant             :     No. 1371 MDA 2017

           Appeal from the Judgment of Sentence April 11, 2014
             in the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0004713-2008

BEFORE:    SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED: JANUARY 10, 2019

     Vincent Anthony Catrone (Appellant) appeals from the April 11, 2014

judgment of sentence imposed after a jury convicted him of, inter alia, three

counts of involuntary deviate sexual intercourse (IDSI) for acts committed

against his stepdaughter, A.M. Upon review, we remand with instructions.

     We discern the following factual and procedural history from the

record. When A.M. was 10 years old, Appellant began to digitally fondle and

penetrate A.M.’s vagina during her bathtime.     This continued on a near-

monthly basis.   When she was 12 years old, Appellant additionally began

attempting to insert small objects, such as a cucumber, into A.M.’s vagina

during bathtime.     When she was 14 years old, these bathtime assaults

escalated further, with Appellant groping A.M.’s breasts, having vaginal

intercourse with A.M., and having A.M. perform oral sex on Appellant.


*Retired Senior Judge assigned to the Superior Court.
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Following the vaginal intercourse and oral sex, Appellant would ejaculate

onto A.M.’s face or chest. Appellant threatened A.M. with harm to her, her

mother (Mother), and her half-brother, V.C.,1 if she reported these assaults.

        When A.M. was approximately 15 years old, Appellant temporarily

moved out of the house and the monthly assaults ceased. However, on one

occasion when A.M. was visiting her stepfather at his new residence with

V.C., Appellant subjected A.M. to vaginal intercourse in his bedroom while he

simultaneously watched a pornographic video. Appellant thereafter moved

back in with Mother. A.M. moved out of her Mother’s house when she was

17 years old.     Following that, only two incidents with Appellant occurred,

both when A.M. was 18 years old.               On the first occasion, Appellant

attempted to have A.M. perform oral sex on him when she visited Mother’s

home, but she was able to leave the residence without doing so. The next

time she went to Mother’s home, A.M. was subjected to performing oral sex

on Appellant.

        Following the last incident, A.M., realizing that the abuse would not

stop, confided the years of abuse to Mother and filed a report with the state

police in Hazelton a few days later, in October 2008. Appellant was charged

with two counts of rape, four counts of IDSI, one count of unlawful contact

with a minor, two counts of aggravated indecent assault, one count of



1   V.C. is the son of Appellant and Mother.


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statutory sexual assault, one count of indecent assault, and one count of

corruption of minors.

      Appellant proceeded to a jury trial on October 13-15, 2009. Prior to

trial, Appellant made an oral motion in limine to preclude the Commonwealth

from asking Mother about Appellant’s sexual activity preferences, including

that he watched pornographic videos and used objects during intercourse,

and preferred to ejaculate on Mother’s face and chest following intercourse

or oral sex. Finding that testimony to be more prejudicial than probative,

and   protected   by    marital   privilege,   the   trial   court   prohibited   the

Commonwealth from pursuing that line of testimony. N.T., 10/14/2009, at

16-17. The next day, the jury found Appellant not guilty of the two charges

of rape, but was unable to reach a unanimous verdict on the remaining

charges.   N.T., 10/13-15/2009, at 333-34.            Ultimately, the trial court

declared a mistrial on the deadlocked charges. Id. at 336.

      Thereafter, the Commonwealth timely appealed the trial court’s ruling

on Appellant’s motion in limine because it handicapped the Commonwealth’s

re-prosecution of Appellant. On appeal, this Court reversed the trial court’s

ruling, finding that the evidence was relevant, highly probative, and not

protected by marital privilege. Commonwealth v. Catrone (Catrone I),

24 A.3d 451 (Pa. Super. 2011) (unpublished memorandum at 19).

      Appellant appeared for a second jury trial on the deadlocked charges

on September 24, 2012.       Prior to this second trial, Appellant argued that


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because Appellant was found not guilty of rape by forcible compulsion, trying

him again as to the remaining ten charges would “twice put him in jeopardy

from similar or the same offenses[.]” N.T., 9/24/2012, at 7. The trial court

denied Appellant’s motion, and he proceeded to trial.        Id. at 9.   The

aforementioned facts were developed, along with testimony from Mother

about Appellant’s sexual preferences, as well as character witnesses

regarding A.M. and Appellant. Additionally, Appellant presented evidence in

support of his defense that A.M. fabricated the sexual assault claims because

she believed that Appellant was attempting to take part of her settlement

proceeds resulting from a car accident involving Appellant, A.M., and V.C.

      At the conclusion of the trial, Appellant was found guilty of three

counts of IDSI, two counts of aggravated indecent assault, and one count

each of unlawful contact with a minor, statutory sexual assault, and indecent

assault.   On April 11, 2014,2 Appellant was found to be a sexually violent

predator (SVP) and was sentenced to an aggregate term of incarceration of

23 years and 5 months to 46 years and 10 months. Due to Appellant’s IDSI

conviction and SVP designation, he is required to register as a sex offender

for his lifetime.




2 The reason for this delay was due in part to a sexual offender assessment
and a motion for extraordinary relief filed by Appellant that was
subsequently withdrawn.


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        Appellant timely filed a post-sentence motion.3 The trial court denied

the motion on August 14, 2017, and this timely-filed appeal followed.4 On

appeal, Appellant presents seven issues for our consideration.         Appellant’s

Brief at 11-12.

        We first address Appellant’s claim that because he was found not

guilty of rape at his first trial, his double jeopardy rights were violated when

he was retried on the first jury’s deadlocked sexual assault charges.

Appellant’s Brief at 33.

        We begin with our standard of review. “An appeal grounded in double

jeopardy raises a question of constitutional law. This [C]ourt’s scope of


3 Initially, Appellant did not file a post-sentence motion or direct appeal.
Appellant twice petitioned the trial court to file a direct appeal nunc pro tunc,
which the trial court denied. On appeal from the second denial, this Court
treated Appellant’s petition as one filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546, reversed the trial court order, and
remanded for the reinstatement of Appellant’s post-sentence and direct
appeal rights. Commonwealth v. Catrone (Catrone II), 153 A.3d 1114
(Pa. Super. 2016) (unpublished memorandum at 3).

      Thereafter, on September 29, 2016, Appellant filed a post-sentence
motion alleging, inter alia, that his mandatory minimum sentences for IDSI
were illegal. The trial court set a briefing schedule and Appellant complied;
the Commonwealth did not. Over 120 days passed; the trial court failed to
rule on the motion and the clerk of courts failed to deny the motion by
operation of law. The trial court purported to schedule a resentencing
hearing on the IDSI counts for May 23, 2017, but subsequently directed the
clerk of courts on May 25, 2017 to enter an order reflecting that the motion
had been denied by operation of law. The clerk of courts failed to do so. On
June 7, 2017, Appellant again sought reinstatement of his post-sentence
rights, which the trial court granted on June 9, 2017.
4   Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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review in making a determination on a question of law is, as always,

plenary. As with all questions of law, the appellate standard of review is de

novo.” Commonwealth v. Adams, 177 A.3d 359, 370 (Pa. Super. 2017)

(citation omitted).    “Under the Double Jeopardy Clauses of both the United

States   and    Pennsylvania     Constitutions,   as   well   as   under   the

Pennsylvania Crimes Code, a second prosecution for the same offense

after acquittal is prohibited.” Commonwealth v. Gibbons, 784 A.2d 776,

777 (Pa. 2001) (citation omitted).

      Appellant’s double jeopardy claim is premised on the principle of

collateral estoppel. Thus, we also keep the following in mind.

      [A] jury’s verdict may, in certain circumstances, be viewed as a
      finding that forecloses consideration of an issue of fact in a
      subsequent prosecution. In order for this to occur, the jury’s
      verdict must be of such a character that it reflects a definitive
      finding respecting a material element of the prosecution’s
      subsequent case.... The party seeking to invoke preclusion
      principles… bears the burden of establishing that the issue he
      seeks to foreclose from consideration in a subsequent
      prosecution was necessarily resolved in his favor in the prior
      proceeding.

Commonwealth v. Buffington, 828 A.2d 1024, 1032-33 (Pa. 2003)

(citations omitted).

      On appeal, in a three-sentence argument, Appellant references his

post-sentence motion to demonstrate that he has met the Buffington

burden. Appellant’s Brief at 33. However, Appellant’s post-sentence motion

is even sparser: “[Appellant’s] retrial was prohibited by [the] double



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jeopardy clause, which was raised by [Appellant], through [c]ounsel, at the

commencement of the [t]rial[.]”        Post-Sentence Motion, 6/15/2017, at

¶ 29(c). Contrary to Appellant’s assertion, Appellant offered nothing at the

time of his oral motion to establish how the deadlocked charges were

necessarily resolved in his favor due to the jury’s finding of not guilty of rape

by forcible compulsion.     Instead, the Commonwealth presented the trial

court with an explanation of how the elements of rape by forcible compulsion

were distinct from IDSI, statutory sexual assault, corruption of minors, and

indecent assault, because all of those charges lack any “force” element.

N.T., 9/24/2012, at 7-8.     Appellant did not contest the Commonwealth’s

analysis, and the trial court denied the motion. Id. at 8-9.

      Based upon our review, we find that Appellant has failed to meet his

burden to establish collateral estoppel. See Buffington, 828 A.2d at 1032-

33. Even if he had made any effort to meet this burden, because none of

the deadlocked charges contained an element of forcible compulsion, those

charges were not resolved in Appellant’s favor at his first trial. Therefore,

double jeopardy did not preclude Appellant’s retrial.     Accordingly, the trial

court did nor err in denying Appellant’s motion to bar retrial.

      We next turn to Appellant’s claim that the trial court erred in denying

his post-sentence motion where he asserted that the verdict was against the

weight of the evidence.    Appellant’s Brief at 29.   “A verdict is against the

weight of the evidence ‘where certain facts are so clearly of greater weight


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that to ignore them or to give them equal weight with all the facts is to deny

justice.’”   Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super.

2017) (quoting Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super.

2003)). We examine challenges to the weight of the evidence according to

the following standard.

      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. 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. When a trial
      court considers a motion for a new trial based upon a weight of
      the evidence claim, the trial court may award relief only 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. The
      inquiry is not the same for an appellate court. Rather, when an
      appellate court reviews a weight claim, the court is reviewing the
      exercise of discretion by the trial court, not the underlying
      question of whether the verdict was against the weight of the
      evidence. The appellate court reviews a weight claim using an
      abuse of discretion standard.

Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and

quotation marks omitted).

      On appeal, Appellant contends that the trial court, in its Pa.R.A.P.

1925(a) opinion, applied the incorrect standard of review in addressing

Appellant’s claim that the verdict is against the weight of the evidence.

Appellant’s Brief at 29-30. Upon review of the record, we agree.

      In response to Appellant’s claim that the trial court erred in denying

his post-sentence motion that the verdict was against the weight of the



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evidence, the trial court applied the sufficiency-of-the-evidence standard of

review, and concluded that “[t]he evidence at trial clearly support[ed] the

jury’s verdict.”   See Trial Court Opinion, 3/29/2018, at 11-12.      Thus, the

trial court applied the wrong standard of review and failed to provide this

Court with an explicit determination on the weight of the evidence.

      “Our role, as noted above, is to review the trial court’s exercise of

discretion in ruling on a weight of the evidence challenge. We do not review

the underlying question of whether the verdict is against the weight of the

evidence.”   Commonwealth v. Sullivan, 820 A.2d 795, 807 (Pa. Super.

2003) (citation omitted). Because the trial court applied the wrong standard

in its analysis of Appellant’s weight-of-the-evidence claim, “we are unable to

conduct our limited review as to whether the trial court abused its discretion

in concluding that its conscience or sense of justice was not shocked by the

guilty verdict.” Id. (footnote omitted). Accordingly, we remand to the trial

court with directions to rule on Appellant’s weight-of-the-evidence claim

under the appropriate standard, and to write a supplemental opinion, within

30 days of the filing of this memorandum, detailing its ruling and findings.

See Commonwealth v. Ragan, 653 A.2d 1286, 1288 (Pa. Super. 1995)

(remanding for supplemental opinion where trial court addressed sufficiency

of the evidence but not weight of the evidence). In light of our disposition,

we need not address Appellant’s remaining claims at this time.

      Remanded with instructions. Panel jurisdiction retained.


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