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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JABBAR ODELL JAMES, : No. 1223 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, February 27, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0011806-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 03, 2016
Jabbar Odell James appeals from the judgment of sentence entered on
February 27, 2014, following his conviction of theft by unlawful taking.1
The trial court provided the following facts:
On August 8, 2012, Juana Saunders hosted a
cookout in her backyard at 216 Amanda Avenue in
Mount Oliver Borough, Allegheny County. Saunders
invited approximately thirty people to the party,
including Appellant. Saunders and Appellant had
been married for three years as of that date, but
were separated and no longer living together in
August of 2012. During the party, Saunders locked
her bedroom door because she had approximately
three thousand dollars for her son’s college tuition,
bills, and cookout incidentals in her nightstand.
Saunders was the only person with a key to her
bedroom, which she used a few times during the
party to retrieve money for ice and other items.
1
18 Pa.C.S.A. § 3921(a).
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The cookout ended at approximately
11:00 P.M. Appellant remained at Saunders’s house,
along with Saunders and her six children. Saunders
unlocked her bedroom door, checked on the money
in her nightstand, and let Appellant into her bedroom
to spend the night while she went downstairs to
sleep. Shortly thereafter Saunders returned
upstairs, and she and Appellant began to argue. The
argument progressed from her bedroom down to the
first floor. The argument ended at approximately
5:30 A.M. when Appellant went back upstairs and
Saunders fell asleep on the couch.
Saunders woke up at 7:30 A.M. and noticed
that Appellant was no longer in her home. She
immediately checked on the money in her nightstand
and found that it was missing. Saunders called
Appellant inquiring about the missing money, to
which Appellant responded, “It’s not so funny now, is
it?” When Saunders stated that she would give
Appellant thirty minutes to return the money before
calling the police, he did not respond. Saunders
subsequently called the police to report the theft.
Appellant was arrested and charged as noted
hereinabove. The trial was postponed several times.
Prior to one of Appellant’s rescheduled trial dates, he
attempted to contact Saunders’s current paramour,
Lakesha Harris, to resolve the case outside of the
court system. Appellant sent Harris a Facebook
message indicating that he wanted the case to be
over and he would compromise about taking the
money. Harris and Appellant conversed through
their Facebook accounts. At the conclusion of one of
the conversations Appellant stated, “I was wrong,
but we both done things to each other.” Appellant
then called Harris at Saunders’s home and told her,
“Listen, I’m trying to work something out. I want
this shit to be over. I’ll give her the money. I’ll give
her half now and half before she go in the
courtroom.” There was no indication at trial that
Appellant ever returned any of the money to
Saunders.
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Trial court opinion, 3/27/15 at 4-6 (footnote and citations omitted).
Following a non-jury trial, appellant was convicted of theft by unlawful
taking on November 4, 2013. On November 21, 2013, appellant filed a
motion to vacate the verdict on the grounds that defense counsel was not
provided with the opportunity to present a closing argument. The trial court
granted the motion and on January 2, 2014, found appellant guilty following
closing arguments from both defense counsel and the Commonwealth.
Appellant was sentenced to two years’ probation and ordered to pay $3,000
in restitution by the trial court on February 27, 2014.
On March 7, 2014, appellant filed post-sentence motions which were
denied by the trial court on July 10, 2014. Appellant filed a notice of appeal
on July 30, 2014. On August 27, 2014, the trial court ordered appellant to
produce a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant complied with the trial court’s order, and the
trial court has issued an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issue on appeal:
Whether the trial court abused its discretion in not
granting [appellant’s] Post-Sentence Motion
requesting a new trial when the verdict of guilty was
contrary to the weight of the evidence?
Appellant’s brief at 4.
Our standard of review for determining whether a verdict is compatible
with the weight of the evidence is well settled:
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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.
Commonwealth v. Brown, 648 A.2d
1177, 1189 (Pa. 1994). 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. Commonwealth v.
Farquharson, 354 A.2d 545 (Pa. 1976).
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. Widmer, 744 A.2d 745, 753
(Pa. 2000).
This does not mean that the exercise of discretion by
the trial court in granting or denying the motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained:
The term “discretion” imports the
exercise of judgment, wisdom and skill
so as to reach a dispassionate conclusion
within the framework of the law, and is
not exercised for the purpose of giving
effect to the will of the judge. Discretion
must be exercised on the foundation of
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reason, as opposed to prejudice,
personal motivations, caprice or arbitrary
actions. Discretion is abused where the
course pursued represents not merely an
error of judgment, but where the
judgment is manifestly unreasonable or
where the law is not applied or where the
record shows that the action is a result of
partiality, prejudice, bias or ill-will.
Widmer, 744 A.2d at 753 (citation omitted).
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in
orginal.)
A fact-finder is free to believe all, part, or none of the evidence
presented. Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa.Super.
2015) (citations omitted). This court cannot assume the task of assessing
the credibility of the witnesses or evidence presented at trial, as that task is
within the exclusive purview of the fact-finder. Commonwealth v.
Hankerson, 118 A.3d 415, 420 (Pa.Super. 2015) (citations omitted).
Appellant’s weight of the evidence claim is grounded in the theory that
the testimony presented by the Commonwealth from Saunders and Harris
was “clearly unreliable, fantastic, and inconsistent, both internally and with
other, more credible evidence.” (Appellant’s brief at 10.) The trial court,
functioning as the fact-finder in this case, made the following determination
of credibility:
The Trial Court clearly found the Commonwealth
witnesses credible, and that the combination of
direct and circumstantial evidence presented during
the trial established Appellant’s guilt beyond a
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reasonable doubt. The Trial Court properly denied
the motion for new trial as the verdict was not
against the weight of the evidence.
Trial court opinion, 3/27/15 at 7-8 (citations omitted).
As noted by the Hankerson court, the fact-finder, and only the
fact-finder, may determine credibility. An appellate court cannot, on a
weight of the evidence review, replace the fact-finder’s determination of
credibility with its own determination. See Commonwealth v. Blackham,
909 A.2d 315, 320 (Pa.Super. 2006), appeal denied, 919 A.2d 954 (Pa.
2007) (“It is not for this Court to overturn the credibility determinations of
the fact-finder”) (citations omitted). Therefore, we are bound by the trial
court’s credibility determination. We find that based on its credibility
determination at trial, the trial court’s denial of appellant’s post-sentence
motion was not an abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2016
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