J-A09005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

STANLEY EDWARD KRALIK

                            Appellant                No. 1412 MDA 2016


            Appeal from the Judgment of Sentence August 12, 2016
              In the Court of Common Pleas of Schuylkill County
             Criminal Division at No(s): CP-54-CR-0000586-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                              FILED MARCH 24, 2017

        Stanley Edward Kralik appeals from the judgment of sentence imposed

August 12, 2016, in the Schuylkill County Court of Common Pleas. The trial

court sentenced Kralik to an aggregate term of 20 to 40 years’ imprisonment

following his jury conviction of, inter alia, third-degree murder1 for the 2014

beating death of Cory Samuels. On appeal, Kralik challenges the weight and

sufficiency of the evidence supporting his conviction, as well as the

discretionary aspects of his sentence. Because we find all of his issues are

waived for our review, we affirm the judgment of sentence.

        The facts underlying Kralik’s conviction are summarized by the trial

court as follows:
____________________________________________


1
    See 18 Pa.C.S. §§ 2502(c).
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     [O]n January 20-21, 2014[,] the victim [Samuels], [Kralik], a
     female friend, and the Co-Defendant, Oliver Trizzari, were
     “hanging out together” at [Kralik’s] place of residence. [Kralik]
     was angry at [the victim] because he had been told that [the
     victim] sexually assaulted a former girlfriend of [Kralik’s].
     [Kralik] had announced a plan to kill [the victim]. Because
     Trizzari was [Kralik’s] friend he offered his help in killing [the
     victim] and he and [Kralik] planned how to do it at least one (1)
     week prior to the killing. They planned how to lure the victim
     into the woods where they would murder him and discard his
     body.

           On the evening in question [Kralik], Trizzari, the victim
     and a girlfriend drank alcohol and smoked “weed” at [Kralik’s]
     place of residence. At that time and place [Kralik] informed
     Trizzari “we are doing it today”. They then escorted the female
     to her home. [Kralik, Trizzari,] and the victim walked into the
     forest for a “guy’s night out party”. [Kralik] took a shovel for the
     specific purpose of using it to kill [the victim]. After walking for
     some distance into the woods the victim was told to gather
     sticks for a bonfire. [Kralik] then gave a pre-arranged signal
     after which he struck the victim in the back of the head with the
     shovel. [Kralik] and Trizzari then took turns striking him with
     the shovel, kicking and choking him. The victim died as a result
     of the attack. Trizzari and [Kralik] then dragged the victim’s
     body to a place where they covered it with branches and snow.
     They also covered the victim’s blood with snow. [Kralik] then
     took the victim’s wallet, cross pendant, cell phone and lanyard.
     [Kralik] then returned to his home in the wee hours of the
     morning, where he burned the victim’s food stamp card and
     other identification. He kept the cross pendant to give to the
     female he believed was raped by the victim.

          The victim’s body was not found until September 6, 2014
     when a Coaldale resident was in the woods searching for
     mushrooms.     The victim’s body parts were scattered over
     approximately 100 yards. It appeared that his skull had been
     chewed by a bear or other large animal.

Trial Court Opinion, 9/29/2016, at unnumbered 3-4.

     Kralik and Trizzari were later arrested and charged with the victim’s

murder.   Although Kralik was 16 years old at the time of the murder, the


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Commonwealth charged him as an adult.2 He subsequently filed a motion

for decertification to the Juvenile Court, which the trial court denied following

a hearing. Prior to trial, Trizzari entered a negotiated guilty plea to charges

of third-degree murder and conspiracy, and was sentenced to a term of 15

to 30 years’ imprisonment in exchange for his testimony against Kralik.

Kralik’s case proceeded to a jury trial.

       On June 22, 2016, a jury returned a verdict of guilty on charges of

third-degree murder, criminal conspiracy, aggravated assault, robbery, and

theft.3 The trial court sentenced Kralik, on August 12, 2016, to a term of 20

to 40 years’ imprisonment for third-degree murder, a concurrent term of 20

to 40 years’ imprisonment for conspiracy to commit murder, and a

concurrent term of 66 months to 20 years’ imprisonment for robbery. The

remaining charges merged for sentencing purposes.          Kralik did not file a

post-sentence motion, but did file this timely direct appeal.4


____________________________________________


2
 At the time of the murder, Trizzari was 20 years old, and the victim was 24
years old.
3
  See 18 Pa.C.S. §§ 2502(c), 903, 2702(a)(1), 3701(a)(1)(i), and 3921(a),
respectively. The jury found Kralik not guilty of first and second-degree
murder.
4
   On August 26, 2016, the trial court ordered Kralik to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After being granted an extension of time, Kralik complied with the court’s
directive and filed a concise statement on September 23, 2016.




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      In his first issue, Kralik purports to challenge both the sufficiency and

weight of the evidence supporting his convictions. He argues the testimony

of his co-conspirator, Trizzari, was “totally contradicted by the physical

evidence and the report of the Commonwealth’s expert pathologist.” Kralik’s

Brief at 4.

      Preliminarily, we note a challenge to the sufficiency of the evidence is

distinct from a challenge to the weight of the evidence. When reviewing a

sufficiency claim,

      we consider whether the evidence presented at trial, and all
      reasonable inferences drawn therefrom, viewed in a light most
      favorable to the Commonwealth as the verdict winner, support
      the jury’s verdict beyond a reasonable doubt. Whether sufficient
      evidence exists to support the verdict is a question of law; thus,
      our standard of review is de novo and our scope of review is
      plenary.

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted), cert. denied, 135 S.Ct. 1400 (2015).         Moreover, because the

credibility of the witnesses is within the sole province of the jury, who is free

to believe all, some or none of the evidence presented at trial, we are not

permitted to reweigh the evidence or substitute our judgment for the jury’s

credibility determinations.   See Commonwealth v. Spotti, 94 A.3d 367,

374 (Pa. Super. 2014) (quotation omitted).

      However, a challenge to the weight of the evidence involves a different

standard and scope of review.

      A weight of the evidence claim concedes that the evidence is
      sufficient to sustain the verdict, but seeks a new trial on the
      ground that the evidence was so one-sided or so weighted in

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     favor of acquittal that a guilty verdict shocks one’s sense of
     justice. On review, an appellate court does not substitute its
     judgment for the finder of fact and consider the underlying
     question of whether the verdict is against the weight of the
     evidence, but, rather, determines only whether the trial court
     abused its discretion in making its determination.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (2013) (internal citations

omitted).

     Based on our review of Kralik’s argument, we determine he is only

challenging the weight of the evidence. His claim focuses solely on Trizzari’s

account of the assault, which he maintains is “totally inconsistent” with the

findings of the Commonwealth’s expert forensic anthropologist regarding the

“manner and cause of death.” Kralik’s Brief at 6. “Directed entirely to the

credibility of the Commonwealth’s chief witness, [Kralik’s] claim challenges

the weight, not the sufficiency, of the evidence.” Commonwealth v. Palo,

24 A.3d 1050, 1055 (Pa. Super. 2011), appeal denied, 34 A.3d 828 (Pa.

2011).

     Furthermore, the case law Kralik cites in his brief refers only to weight

of the evidence claims, and he does not even discuss the elements

necessary for a third-degree murder conviction. Accordingly, we find Kralik’s

sufficiency claim is waived.   See Commonwealth v. Bullock, 948 A.2d

818, 823 (Pa. Super. 2008) (finding claim abandoned when appellant did not

develop claim in his brief), appeal denied, 968 A.2d 1280 (Pa. 2009). See

also Pa.R.A.P. 2119(a).

     Furthermore, we also find Kralik’s weight of the evidence claim is

waived for appellate review.

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       It is well settled that a defendant must present his challenge to
       the weight of the evidence to the trial court for a review in the
       first instance. Thereafter, 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.

Commonwealth v. Stiles, 143 A.3d 968, 980 (Pa. Super. 2016) (quotation

omitted), appeal denied, ___ A.3d ___, 2016 WL 7106404 (Pa. Dec. 6,

2016). Consequently, “[a] weight of the evidence claim must be preserved

either in a post-sentence motion, by a written motion before sentencing, or

orally prior to sentencing.” Commonwealth v. Lofton, 57 A.3d 1270, 1273

(Pa. Super. 2012), appeal denied, 69 A.3d 601 (Pa. 2013) (citations

omitted). See Pa.R.Crim.P. 607.

       Here, Kralik did not file a post-sentence motion, nor did he challenge

the weight of the evidence either prior to or during his sentencing hearing.

See generally, N.T., 8/12/2016, at 1-16. Therefore, the trial court did not

consider whether the verdict was against the weight of the evidence, and,

this claim is waived for our review.5

       Next, Kralik challenges the discretionary aspects of his sentence.

Specifically, he contends the trial court failed to consider certain mitigating

factors, including his age at the time of the offense, his lack of a significant

____________________________________________


5
  We note the fact that Kralik included this claim in his Pa.R.A.P. 1925(b)
statement did not preserve the issue for our review absent the filing of an
earlier motion. See Commonwealth v. Sherwood, 982 A.2d 483, 494
(Pa. 2009), cert denied, 559 U.S. 1111 (2010).




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prior criminal history, and psychological reports presented during the

decertification hearing that found he was amenable to rehabilitation.     See

Kralik’s Brief at 8.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citation omitted).    In order to reach the merits of such a

claim, this Court must determine:

      (1) whether the appeal is timely; (2) whether Appellant
      preserved his issue; (3) whether Appellant’s brief includes a
      concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(quotation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      In the present case, although Kralik filed a timely appeal, he failed to

preserve his objection to his sentence in a post-sentence motion, or include

in his brief a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f). This Court has explained:

      [W]hen the appellant has not included a Rule 2119(f) statement
      and the [Commonwealth] has not objected, this Court may
      ignore the omission and determine if there is a substantial
      question that the sentence imposed was not appropriate, or
      enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e.,
      deny allowance of appeal. However, this option is lost if the
      [Commonwealth] objects to a [Rule] 2119(f) omission. In such
      circumstances, this Court is precluded from reviewing the merits
      of the claim and the appeal must be denied.


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Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (internal

citations omitted).

        As noted above, Kralik failed to include the requisite Rule 2119(f)

statement in his brief.      Moreover, the Commonwealth has objected to this

omission.     See Commonwealth’s Brief at 14-15.        Accordingly, we are

precluded from considering this claim on appeal.6 Kiesel, supra.

        Therefore, because we conclude all of the claims Kralik raises on

appeal are waived, we affirm the judgment of sentence.       At this juncture,

Kralik’s only avenue for relief is a timely filed post-conviction collateral

petition challenging trial counsel’s ineffectiveness. See 42 Pa.C.S. §§ 9541-

9546.

        Judgment of sentence affirmed.

    Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2017

____________________________________________


6
  Even if we were to find his sentencing challenge preserved, “an allegation
that the sentencing court failed to consider mitigating factors generally does
not raise a substantial question for our review,” particularly where, as here
the trial court had the benefit of a pre-sentence investigation report.
Commonwealth v. Rhoades, 8 A.3d 912, 918–919 (Pa. Super. 2010).
See N.T., 8/12/2016, at 1.



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