J-S45018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. GEORGE LUDWIG

Appellant No. 1011 EDA 2013

Appeal from the Judgment of Sentence of August 17, 2011, In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0005747-2010

BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.* MEMORANDUM BY WECHT, J.: FILED OCTOBER 15, 2014

George Ludwig (“Ludwig”) appeals nunc pro tunc from the judgment of sentence entered on August 17, 2011, and from the court’s denial of his petition to reinstate his right to file post-sentence motions pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm the judgment of sentence and the PCRA court order.

At a bench trial, the Commonwealth adduced the following:

The victim, Endard R. Engle [(“Engle”)], age 73, also called Micky, testified that on April 8, 2010, he was in his home at 608 Gaul Street watching television when at about 11 or 12 o’clock at night there was a knock on his front door and someone called out “Mick . . . It is Sonny”, noting that his brother-in-law and a couple of other people he knew were called Sonny. When he opened the door, a white male with his face partially covered ____________________________________________

* Former Justice specially assigned to the Superior Court. J-S45018-14

thrust his hand with an object he could not identify in it towards him and demanded money. When he said he didn’t have any, the man came in pushing him back, told him to lay down, which he did, took about $400 out of [Engle’s] pocket and left, taking [Engle]’s keys which were in the door on the way out. The keys were found and returned to him the next day. The only additional description he could provide was that the man was tall and thin. On cross examination, defense counsel had [Engle] confirm that he could not see the man very well because it was dark and [the man’s] face, except for his eyes, was covered by something, and that when [Engle] opened the door there was no one else there . . . . Trial Court Opinion (“T.C.O.”), 7/22/13, at 2-3. Sharon Smutnik (“Smutnik”), Engle’s niece and a childhood acquaintance of Ludwig, testified that, around 11:00 p.m. that same evening, she stood at Engle’s door and spoke to him for about ten minutes. She then began to walk home, and ran into Ludwig on the street corner. She testified as follows:

Q. And what conversation, if any, did you have with [Ludwig] at that time?

A. [Ludwig] asked me whose house I just came from. I said, my uncle Sonny’s—my uncle Sonny’s brother-in-law actually.

Q. That would be Mr. Engle’s house, right?

A. Yes. He said, [d]oes he have any money? I said, [n]o. He is 72 years old. He is an old man. He doesn’t have any money.

Q. Mr. Ludwig asked you that?

A. Yes.

Q. What else did he say?

A. He said, I am sick. I need some money. I said, [l]ook do me a favor, don’t hurt the man. Don’t go near the house. He doesn’t have any money. He is an old man. He doesn’t keep money.

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* * *

Q. After that conversation, what, if anything, did you do?

A. I went home.

Q. [T]he next day, do you recall seeing Mr. Ludwig again?

A. Yes, I did, at 11:00 a.m.

Q. Where did you see him at that point?

* * *

A. The apartment building I live in. I was in the yard and had just came out. He had just came in behind me. He had come over to me and said, I scored. I said, [w]hat do you mean you scored? He said, I got the old man last night for a couple hundred dollars. I said, [n]o you did not rob him. No you did not go over there.

Q. What did you mean when you said, no you did not rob him?

A. I meant no you didn’t go in there and rob that man.

Q. When you were talking about the man, were you talking about Mr. Engle?

A. Mr. Engle, yes. Id. at 4-5 (quoting Notes of Testimony (“N.T.”), 12/07/2010, at 20-21). Smutnick then testified that Ludwig told her that he had taken Engle’s keys and thrown them into the yard on his way out. She stated that, shortly after she spoke to Ludwig, the police arrived and she “had to go with the police. Then later on they took me to East Detectives to talk to the detectives.” N.T. at 24.

Based upon Engle and Smutnick’s testimony, the trial court convicted Ludwig of robbery, burglary, criminal trespass, possession of an instrument

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of crime, and simple assault.^[1] On August 17, 2011, Ludwig was sentenced to an aggregate term of not less than five nor more than ten years’ incarceration. Trial counsel did not file post-sentence motions or a direct appeal. On July 10, 2012, new retained counsel filed a “Motion to File Post-Sentence Motions Nunc Pro Tunc,” which the trial court treated as a timely first petition pursuant to the PCRA. On February 22, 2013, the court reinstated Ludwig’s right to appeal nunc pro tunc, but denied his motion to file post- sentence motions. Ludwig timely appealed the PCRA court’s order pro se on March 21, 2013. Counsel was appointed. Following a per curiam order by this Court granting Ludwig’s “Application to Amend Notice of Appeal,” on May 6, 2013, Ludwig, through counsel, timely modified his notice of appeal nunc pro tunc to indicate that it was an appeal of his judgment of sentence of August 17, 2011, rather than from the PCRA court’s order of March 21, 2013.2 Ludwig raises the following two issues for our review: J-S45018-14 evidence where the evidence of identity was so tenuous, [vague], and uncertain as to shock one’s sense of justice?

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Present counsel discovered this error during review of the Quarter Sessions file.

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sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. In this regard, [t]he evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court. Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004).

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:

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. 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. 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. Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014) (emphasis omitted).

Here, Ludwig contends that Engle and Smutnik were not credible witnesses. Ludwig’s Brief at 14. Specifically, he asserts that their testimony was inconsistent because Engle stated that he had no visitors on the night of the incident, whereas Smutnik testified that she spoke to Engle from his front door, and calls into question Smutnik’s motives for failing to warn Engle or call the police. Id. at 15-17.

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The PCRA court, however, observed that this “weight” claim was previously argued by Ludwig in his closing argument at the bench trial. T.C.O. at 13. Since [Ludwig] did not offer any additional evidence and the trial court has already made the determination of the credibility of the witness that he challenges, and since the argument he presented in his PCRA petition is exactly the same as the closing argument defense counsel made at trial, granting him the right to file a post sentence motion before the same trial judge without citing any additional reasons to support his claimed lack of credibility would have been senseless. Id. Thus, the PCRA court concluded that Ludwig had not proven that his weight claim had underlying merit simply by attacking the witnesses’ credibility. It is well-settled that we, as an appellate court, may not second- guess the court’s credibility determinations. Commonwealth v. O’Bryon, 820 A.2d 1287, 1290 (Pa. Super. 2003) (“[I]t is axiomatic that appellate courts must defer to the credibility determinations of the trial court as fact finder, as the trial judge observes the witnesses’ demeanor first-hand.”). Proceeding directly to the third prong of the test for ineffective assistance of counsel, Jones, 942 A.2d at 906, we conclude that Ludwig was not prejudiced by counsel’s failure to preserve a weight claim by filing post- sentence motions. The court weighed the evidence and concluded that Smutnik was credible and that Ludwig had committed the crimes in question. T.C.O. at 13. This determination is not so contrary to the evidence as to shock one’s sense of justice, and thus, the trial court did not abuse its discretion. Horne, 89 A.3d at 285; Ross, 856 A.2d at 99. We - 10 - J-S45018-14 decline Ludwig’s invitation to assume the role of fact-finder and to reweigh the evidence. O’Bryon, 820 A.2d at 1290. Accordingly, Ludwig cannot sustain his claim for ineffective assistance of counsel for failure to preserve a challenge to the weight of the evidence where he has not shown that, “but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.” Jones, 942 A.2d at 906. Ludwig having failed to do so, his challenge to the PCRA court’s denial of reinstatement of his post- sentence motion lacks merit.^[4] We now turn to Ludwig’s challenge to his judgment of sentence. Ludwig contends that “the evidence under each charge was insufficient to establish that [he] assailed Mr. Engle.” Ludwig’s Brief at 19. Specifically, he argues that “there is no evidence to show that [he] was the assailant in this matter” because “the identification of [Ludwig] rests solely on the testimony of a woman who could not testify consistently with the [eyewitness] to the ____________________________________________