J-S48012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MARK ANTHONY MARTIN

                        Appellant                  No. 1326 WDA 2014


         Appeal from the Judgment of Sentence January 29, 2014
           In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0013843-2011


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                       FILED OCTOBER 26, 2015

     Appellant, Mark Anthony Martin, appeals from the judgment of

sentence entered January 29, 2014, in the Court of Common Pleas of

Allegheny County. We affirm.

     The trial court summarized the facts of this matter as follows.

            On September 18, 2011, Sonya Smith was watching
     television inside the second floor bedroom of her residence at
     9811 Glendale Road, in the Penn Hills section of Allegheny
     County. Smith and Appellant had been involved in an intimate
     relationship since 2006, but became estranged in May 2011.
     Appellant was familiar with Smith’s residence from visiting and
     staying there throughout their relationship. Smith had locked all
     of the doors to her house before retiring to her bedroom that
     evening. At approximately 3:45 A.M. Smith was awakened by
     voices outside of her bedroom window. Smith called the police
     when she heard prying noises at the kitchen window, which was
     directly below her bedroom. Appellant and John Sloan, who
     were unable to gain entry through the locked doors, broke
     through a [windowpane] in the kitchen door to gain entry to
     Smith’s home through that door.
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           Shortly thereafter, Sloan, wearing black sweatpants, a
     black sweatshirt, gloves, a Halloween mask and a paintball
     mask, entered Smith’s bedroom holding a 9mm firearm. Sloan
     ordered Smith to lie on her bed facedown and struck Smith in
     the head and arms multiple times with the firearm. Appellant,
     who was wearing a light colored t-shirt, grey sweatpants, and a
     ski mask entered Smith’s bedroom[] shortly after Sloan.
     Appellant and Sloan straddled Smith and struck her multiple
     times in the arms and head; Sloan with the firearm and
     Appellant with a heavy object, most likely a crowbar.

           Following the assault, the two men fled the residence.
     Appellant left first, exiting through the sliding glass door in the
     dining room, a door that because of its “stickiness” could only be
     opened by someone familiar with the premises. At the same
     time Penn Hills police officers arrived on scene in response to
     Smith’s 911 call. Officer Ronald Como, with the assistance of his
     vehicle spotlight, observed Appellant jog across Glendale Road
     away from Smith’s home. Officer Como exited his vehicle to
     approach Appellant, who immediately encountered dogs in a
     neighbor’s yard. Officer Como’s in-vehicle camera captured
     Appellant’s image as he ran across Glendale Road away from
     Smith’s home.

            Officer Richard Pine approached from the opposite
     direction and observed Sloan exiting out the side kitchen door of
     Smith’s residence and running towards the wooded area behind
     Smith’s home. Sloan was able to escape the immediate area but
     was stopped by a Penn Hills officer responding to the scene
     approximately one-half mile away on Frankstown Road. Sloan
     was taken to the Penn Hills police station to be identified
     because he had no identification with him, and presented to the
     officer that he had been out jogging, “blowing off steam,” after a
     domestic argument. He was later charged with the incident once
     Smith was able to be interviewed and identif[ied] him as one of
     the assailants.

           At approximately 4:30 A.M. Jerome Landrum was
     awakened by Appellant knocking on his door. Landrum lived at
     441 Hochberg Road, approximately one half mile from Smith’s
     residence. Landrum had known Appellant for over ten years, but
     could not see Appellant’s face when he looked outside so he
     called the police and gave a general description of the individual
     knocking on his door. Unable to gain entry to Landrum’s home,
     Appellant went next door (442 Hochberg Road) and knocked on

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     the door of the home of Glenn Dillard, who was Landrum’s uncle.
     Appellant knew and called out Dillard’s name and Dillard
     admitted him into his residence. Police responded to the area
     based on Landrum’s call and that his description of the person at
     his door matched that provided by Officer Como. The police did
     not encounter anyone on Hochberg Road at that time. Landrum
     entered Dillard’s home and encountered Appellant, who told him
     that he had gotten into an altercation and needed a ride home.
     Appellant appeared scared and repeatedly looked out the
     windows of Dillard’s home until police vacated the area.
     Landrum refused to provide a ride to Appellant, and after
     approximately fifteen minutes Appellant left Dillard’s home.

            Penn Hills officers responding to Smith’s home entered the
     residence and encountered Smith, severely injured, in her
     bedroom.      She notified officers that she immediately had
     recognized Appellant as the second assailant based on his build,
     height, weight, and distinctive smell. Smith was immediately
     transported to the hospital for her injuries; [she] sustained a
     total of nine broken bones in her arms, bruising on her arms and
     back, and a concussion. As a result of the attack Smith spent
     several days in the hospital and one month in a nursing facility
     for rehabilitation.

             On September 23, 2011, en route from the rehabilitation
     facility to attend a funeral, Smith returned home briefly and
     discovered a book[ ]bag belonging to [Appellant] in the dining
     room near the sliding glass door that Appellant had exited. She
     also found a ski mask on a table near the book[ ]bag. Smith
     contacted the police, who collected the ski mask and the book[
     ]bag which contained, among other items, a crowbar. The ski
     mask was submitted to the crime lab, and a DNA mixture
     obtained from a tape lift and suspected saliva stain from the
     mask were compared to the DNA profiles of Appellant and Sloan.
     Appellant and Sloan could not be excluded as contributors to the
     sample taken from the tape lift, and Appellant could not be
     excluded as a contributor to the suspected saliva stain on the ski
     mask. Smith viewed the video from Officer Como’s vehicle and
     identified Appellant based on his build, height, weight, and skin
     color. Kimberly Carson and Beatrice Berry, individuals who had
     lengthy relationships with Appellant were shown a still
     photograph from this video and also identified Appellant. Dillard
     and Landrum were interviewed at a later date and identified
     Martin as the individual who entered Dillard’s residence in the
     early morning hours on September 18, 2011.

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Trial Court Opinion, 1/5/15 at 6-10 (citations and footnote omitted).

        Appellant was charged with robbery, burglary, aggravated assault, and

criminal conspiracy.1      A first jury trial resulted in a mistrial when the jury

was unable to reach a verdict. The second resulted in the jury convicting

Appellant of all charges, with the exception of robbery.          The trial court

sentenced Appellant to an aggregate term of 17 to 34 years in prison. The

trial court denied Appellant’s post sentence motions.         This timely appeal

followed.

        In his first issue, Appellant alleges the ineffective assistance of trial

counsel.    Apart from two limited exceptions not pertinent here, claims of

ineffective assistance of counsel cannot be raised on direct review.           See

Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).                 Accordingly,

Appellant cannot raise this claim on direct review.           Therefore, we find

Appellant’s claim of ineffectiveness of trial counsel must await collateral

review.

        Appellant additionally argues that his convictions were against the

weight of the evidence presented. We note that

        [t]he finder of fact is the exclusive judge of the weight of the
        evidence as the fact finder is free to believe all, part, or none of
        the evidence presented and determines the credibility of the
        witnesses.


____________________________________________


1
    18 Pa.C.S. §§ 3701(a)(1)(i), 2702(a)(1), 3502, and 903(c), respectively.



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            As an appellate court we cannot substitute our judgment
      for that of the finder of fact. Therefore, we will reverse a jury’s
      verdict and grant a new trial only where the verdict is so
      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when “the figure of Justice totters on her
      pedestal,” or when “the jury’s verdict, at the time of its
      rendition, causes the trial judge to lose his breach, temporarily
      and causes him to almost fall from the bench, then it is truly
      shocking to the judicial conscience.”

            Furthermore, where the trial court has ruled on the weight
      claim below, an appellate court’s role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the
      weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)

(quoting Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super.

2007)) (citations omitted).

      Appellant’s argument on appeal fixes largely upon the credibility of the

victim’s identification testimony, as well as nature of the Commonwealth’s

evidence.   In rejecting Appellant’s weight of the evidence claim, the trial

court observed that

            [h]ere, the jury heard testimony from and assessed the
      credibility of several witnesses, as well as Appellant. Additionally,
      the jury viewed and considered video captured by Officer Como’s
      vehicle, as well as hearing Smith’s 911 call and Appellant’s calls
      while incarcerated to Jade Marin, his daughter. Briefly stated,
      the evidence presented established that: (1) Appellant broke
      into Smith’s home with John Sloan and assaulted Smith with a
      crowbar; (2) Smith identified [Appellant] as the second assailant
      to police immediately following the assault; (3) Smith
      consistently identified [Appellant] as the second assailant based
      on her familiarity with his height, weight, and distinctive odor, as
      well as his familiarity with her home from their five-year intimate

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      relationship; (4) Appellant fled as the police approached, leaving
      his ski mask, book[ ]bag, and crowbar near the sliding glass
      door through which he exited; (5) Appellant crossed paths with
      Officer Como on Glendale Road but was able to escape
      apprehension by running through the neighbor’s yard; (6)
      Appellant hid inside Dillard’s home until the police left the area;
      (7) Smith, Berry, and Cameron identified the individual in the
      video as Appellant; and (8) the ski mask contained a DNA
      mixture from which the Appellant could not be excluded as a
      contributor.

            The jury clearly found the Commonwealth witnesses
      credible, and Appellant not so. Given the nature and quality of
      eyewitness and physical evidence in this matter, the [t]rial
      [c]ourt properly denied the motion for new trial as the verdict
      was not against the weight of the evidence.

Trial Court Opinion, 1/5/15 at 16-18 (citations omitted).

      Upon review, we find no abuse of discretion by the trial court in

determining that the verdicts were not against the weight of the evidence.

Appellant’s challenge amounts largely to a veiled attack on the credibility of

the victim, Sonya Smith. Appellant assails the victim’s ability to identify her

attackers during the home invasion, attributes the victim’s consistent

identification testimony to “a desire to get back at a former lover,” suggests

that the evidence could have been tampered with, and insists that he was

home sick on the evening the burglary occurred.

      The defense presented all of these theories to the jury at trial, and the

jury ultimately found them to be unavailing.      The jury clearly acted well-

within its discretion to credit the testimony of the Commonwealth’s

witnesses and not Appellant.    See Commonwealth v. Bullick, 830 A.2d

998, 1000 (Pa. Super. 2003) (“[T]he trier of fact while passing upon the


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credibility of witnesses and the weight of the evidence produced, is free to

believe all, part or none of the evidence.”).

      In light of the overwhelming evidence of Appellant’s guilt, not least of

all the victim’s immediate and unwavering identification of Appellant as her

assailant, we discern no abuse of the trial court’s discretion in denying

Appellant’s challenge to the weight of the evidence. Accordingly, his claim is

without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2015




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