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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CEASAR TRICE
Appellant No. 1321 WDA 2014
Appeal from the PCRA Order July 28, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0018839-2006
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 2, 2015
Appellant, Ceasar Trice, appeals from the order entered in the Court of
Common Pleas of Allegheny County that denied his petition pursuant to the
Post Conviction Relief Act (“PCRA”). Trice contends that the PCRA court
erred in concluding that neither his trial counsel nor his appellate counsel
rendered ineffective assistance of counsel. We conclude that Trice has failed
to establish that the PCRA court erred, and therefore affirm.
The factual background of this case arises from a dispute between a
drug dealer and his customers. Trice, who was a juvenile at the time, was a
regular supplier of drugs to the residents of a home in West Mifflin Borough
(“the Cardamone home”). Dominic Cardamone resided in a third floor, attic
apartment with his significant other, Heidi Stipetich. Their son, John
Cardamone, then 27, lived on the second floor with his girlfriend, Kimmerly
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Messenger. John’s brother, Aaron Cardamone, then 25, lived in a separate
room on the same floor, while a friend of the family, Heidi Schindler, slept in
the living room on the first floor.
In the early morning of November 25, 2006, Trice made a sales call to
the Cardamone home. However, instead of consummating the transaction,
John Cardamone and Kimmerly Messenger took him to the second floor and
severely beat him, taking $150 in cash as well as his narcotics. Trice left the
Cardamone home and was eventually transported to a nearby hospital to
have the wound in his head closed with nine staples.
While Trice was being treated, a colleague, Dejuan Mitchell, took a gun
and shot at the second and third story windows of the Cardamone home. No
one was injured in the shooting, and Mitchell left the scene.
Shortly thereafter, police arrived on the scene, responding to a “shots
fired” report. Officers observed bullet holes in the Cardamone home, and
knocked on the door. None of the residents answered immediately, as they
were all in the third floor apartment, with at least a few getting high on
narcotics stolen from Trice. Eventually, Stipetich went to the door and told
police that she had not contacted police because she couldn’t find her phone,
and furthermore, that she had no idea regarding the identity of the shooter.
The police left the scene, and the residents of the Cardamone home
eventually fell asleep. However, at some time after 9 a.m., Heidi Schindler,
who was sleeping in the first floor living room, was woken by three
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intruders. One of the intruders, Anthony Nelson, held a rifle to Schindler’s
mouth and ordered her to sit up. Another intruder, Mitchell, told Nelson
leave Schindler alone, as “she had nothing to do with this.” After Mitchell
and Nelson went upstairs, Schindler heard approximately twelve shots fired,
and then saw Mitchell and Nelson run back down the stairs. She was unsure
if the third intruder, whom she could not identify, had gone upstairs with
Nelson and Mitchell, or whether he had remained downstairs.
Mitchell testified that after Trice returned from the hospital, he asked
Nelson and Mitchell to accompany him to the Cardamone home to retrieve
his property. After the three broke into the house and confronted Schindler,
Nelson passed the gun to Trice, and Mitchell and Trice proceeded upstairs.
Mitchell stated that while he was searching Aaron Cardamone’s room, Trice
came in and shot Aaron several times. Mitchell fled down the stairs, hearing
more gun shots as he fled.
Kimmerly Messenger and John Cardamone also suffered significant
gunshot injuries but survived the assault. Aaron Cardamone was
pronounced dead at the hospital from the gunshot wounds he received.
Trice was subsequently arrested and charged with one count of
homicide and various other crimes arising from the incident. Trice moved to
transfer the case to juvenile court. After a decertification hearing, the trial
court denied the motion.
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Thereafter, a jury convicted Trice of one count of third degree murder,
two counts of aggravated assault, and one count of criminal trespass. On
October 16, 2008, the trial court sentenced Trice to an aggregate sentence
of imprisonment of 32 to 64 years. Trice did not file any post-sentence
motions, but did file a timely direct appeal. This Court affirmed the
judgment of sentence on July 8, 2011.
Trice filed a pro se PCRA petition on June 11, 2012. Counsel was
appointed to represent Trice, and an amended petition was filed on
December 6, 2013. After a hearing, the PCRA court dismissed the amended
petition by order entered July 28, 2014. This timely appeal followed.
On appeal, Trice claims to raise three issues for our review. However,
his final issue is merely a repeat of his first two claims recast under a
different section of the PCRA. We address Trice’s claims in order.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,
Edmiston v. Pennsylvania, 134 S. Ct. 639 (U.S. 2013). We review the
PCRA court’s legal conclusions de novo. See Commonwealth v. Spotz, 18
A.3d 244, 259 (Pa. 2011).
To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
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resulted from one of the errors listed in 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii).
See Commonwealth v. Albrecht, 720 A.2d 693, 698 (Pa. 1998).
Trice’s first two issues are premised upon claims of ineffectiveness of
counsel under 42 Pa.C.S.A. § 9543(a)(2)(ii). To address Trice’s claims of
counsels’ ineffectiveness, we turn to the following principles of law:
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place … Appellant must
demonstrate: (1) the underlying claim is of arguable merit; (2)
that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of
the proceedings would have been different.
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)
(citations omitted). Moreover, “[w]e presume counsel is effective and place
upon Appellant the burden of proving otherwise.” Commonwealth v.
Springer, 961 A.2d 1262, 1267-1268 (Pa. Super. 2008) (citation omitted).
This Court will grant relief only if Appellant satisfies each of the three prongs
necessary to prove counsel ineffective. See Commonwealth v. Natividad,
938 A.2d 310, 322 (Pa. 2007). Thus, we may deny any ineffectiveness
claim if “the evidence fails to meet a single one of these prongs.” Id., at
321 (citation omitted).
First, Trice argues that trial counsel was ineffective for failing to file a
post-sentence motion raising a weight of the evidence claim. Trice is correct
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in noting that trial counsel’s failure to raise a weight claim in a post-sentence
motion caused that issue to be waived on direct appeal. See Pa.R.Crim.P.,
Rule 607(a). Thus, we begin our analysis of whether trial counsel was
ineffective for failing to do so by determining whether Trice’s underlying
weight claim has arguable merit. Our standard of review applicable to a
challenge to the weight of the evidence is as follows.
[A] verdict is against the weight of the evidence only when the
jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice. It is well established that a weight of the
evidence claim is addressed to the discretion of the trial court. …
The role of the trial court is to determine that notwithstanding all
the evidence, 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. A motion for a new trial on the grounds that the
verdict is contrary to the weight of the evidence concedes that
there is sufficient evidence to sustain the verdict; thus the trial
court is under no obligation to view the evidence in the light
most favorable to the verdict winner.
Significantly, in a challenge to the weight of the evidence, the
function of an appellate court … is to review the trial court's
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight
of the evidence. In determining whether this standard has been
met, appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion. It is for this reason that 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. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal
citations and quotation marks omitted). In the context of a claim for
ineffectiveness of trial counsel for failing to properly raise the claim before
the trial court, we review the PCRA court’s exercise of discretion based upon
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the record. See Commonwealth v. Luster, 71 A.3d 1029, 1049 (Pa.
Super. 2013).
It is extraordinarily difficult to establish arguable merit for a claim that
counsel was ineffective for failing to raise a weight of the evidence claim. “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
breath, temporarily, and causes him to almost fall from the bench, then it is
truly shocking to the judicial conscience.” Commonwealth v. Boyd, 73
A.3d 1269, 1274-1275 (Pa. Super. 2013) (citation and internal quotation
marks omitted).
Trice cogently points out the many issues of credibility inherent in the
Commonwealth’s witnesses, including but not limited to the criminal
backgrounds of all of the eyewitnesses to the crimes. However, upon review
of the transcripts and certified record, we cannot conclude that the PCRA
court abused its discretion in finding that Trice had not proved that any
reasonable jurist would have been shocked. This was admittedly a difficult
case for the Commonwealth to prove, but there is no doubt that the victims
were shot, and that their credibility would have been an issue in any trial
regarding the shooting. To categorically rule that they have no credibility
would effectively bar the Commonwealth from prosecuting this crime. We
therefore conclude that Trice’s first issue on appeal merits no relief.
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In his second issue, Trice makes two distinct arguments regarding his
claim that appellate counsel was ineffective. First, he argues that appellate
counsel was ineffective for failing to raise a challenge based upon an
evidentiary objection at trial, and instead raising a claim that was not
preserved at trial.
During the trial, the Commonwealth presented a recorded statement
from Mitchell as rebuttal evidence to rehabilitate Mitchell’s credibility. Trial
counsel objected to the recorded statement on the grounds that it was
outside the scope of the direct and re-direct examination of Mitchell. Trice’s
trial counsel argued that the Commonwealth was “trying to bring out
additional information that is in here that he [Mitchell] did not testify to that
they had the opportunity to bring out and they had him on the stand either
on direct or redirect.” N.T., Trial, 7/9-18/08, at 933. The trial court
overruled counsel’s objection, and the statement was presented to the jury.
In contrast, appellate counsel argued that Mitchell’s recorded
statement constituted unnecessary cumulative evidence. See
Commonwealth v. Trice, 1932 WDA 2008, at *9 (Pa. Super. 2011)
(unpublished memorandum). Since this argument had not been presented
and therefore preserved before the trial court, this Court found it waived for
purposes of appeal. See id., at *9-10.
Trice contends that appellate counsel’s failure to raise the preserved
claim constitutes ineffective assistance of counsel. However, in his brief in
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this appeal, Trice does not provide any argument, factual or legal, in support
of his contention that the preserved objection, regarding scope, would have
merited reversal if it had been argued on appeal. In light of this omission,
Trice fails to establish that this claim had arguable merit, and therefore
cannot establish the first prong of the standard identified in Johnson. Thus,
Trice’s first claim of appellate counsel ineffectiveness merits no relief.
Next, Trice contends that appellate counsel was ineffective for failing
to ensure that the decertification hearing had been transcribed and that the
transcripts were lodged in the record. The trial court, in its 1925(A) opinion
on appeal, concluded that the absence of the transcripts rendered Trice’s
decertification claim waived. Trice did not pursue the issue on direct appeal.
However, Trice again fails to provide any factual or legal argument in
his appellate brief in this matter to support his contention that the
underlying issue, the trial court’s refusal to decertify this case, had any
merit. As such, Trice has not established the first prong of the test identified
in Johnson, and his claim on appeal merits no relief.
In his final issue, Trice argues that the ineffectiveness of trial and
appellate counsel in this case “so undermined the truth-determining process
such that there could not have been a reliable adjudication of guilt … in this
case[.]” Appellant’s Brief, at 29-30. This argument simply constitutes an
attempt to re-cast Trice’s ineffectiveness from claims under the PCRA’s
section 9543(a)(2)(ii), into a claim under section 9543(a)(2)(i). As we have
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concluded that Trice has not established counsels’ ineffectiveness, this claim
also fails.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2015
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