J-A30033-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSEPH MARION, :
:
Appellant : No. 341 WDA 2018
Appeal from the Judgment of Sentence January 22, 2018
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007232-2016
BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER,* J.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 7, 2019
Joseph Marion (Appellant) appeals from the judgment of sentence
entered January 22, 2018, after he was found guilty of robbery, theft by
unlawful taking, and simple assault. We affirm.
The Commonwealth charged Appellant with the above-referenced
crimes following a robbery in the City of Pittsburgh on June 5, 2016.
Appellant eventually proceeded to a non-jury trial. We begin with the trial
court’s summary of the facts established by the Commonwealth at
Appellant’s trial.
The Commonwealth presented the testimony of the victim,
[] who testified that she was walking on Forbes Avenue in
Pittsburgh when a man approached her from behind, grabbed
her, ripped her purse from her shoulder, threw her to the ground
and ran from the scene. As a result she sustained injuries to the
left side of her face, her shoulder and knees. The victim’s purse
was worth approximately $250.00 and contained a small amount
*Retired Senior Judge assigned to the Superior Court.
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of cash and her cell phone. The victim testified that a passerby
assisted her and the police were called. She described the
attacker as wearing dark clothing and a blue bandanna wrapped
around his head. On cross[-]examination the victim
acknowledged that she had been drinking and that the assault
happened “very fast.” She also testified that after speaking to
the police at the scene she was taken to where [Appellant] had
been apprehended and she immediately identified him as the
assailant.
The Commonwealth called Officer Josh Anderson of the
City of Pittsburgh police who testified that he was on patrol and
received a call of a robbery in the 1900 block of Forbes Avenue.
He testified that he received a description of the suspect who
was later located by other officers at the corner of Pride and Fifth
Avenue, which was approximately five blocks away from the
assault. Officer Anderson testified that when [Appellant] was
taken into custody he matched the description of what the
assailant was wearing “exactly.” Officer Anderson testified that
the victim’s purse was located in the 1800 block of Forbes
Avenue in a parking lot and the phone was located at the corner
of Tustin and Gist Streets, approximately a half block from the
assault. On cross[-]examination Officer Anderson testified that
in his police report he noted the victim had “indications of
alcohol,” but did not believe that she was incoherent or that any
of the information she provided was inaccurate.
The Commonwealth also called Officer James Aker who
testified that he was on patrol when he received the call and
description of the actor. He testified that as a result he was
driving in the area between Fifth and Forbes Avenues and on the
adjacent side streets and while stopped at a traffic light at the
intersection of Fifth Avenue and Pride streets, approximately 10
minutes after receiving the call, [Appellant], who matched the
description of the actor, walked in front of his vehicle. He
testified that [Appellant] was alone and there was no one else in
the general area that matched the description of the actor.
[Appellant] was taken into custody and the victim was brought
to the location and she identified [Appellant] as her attacker. On
cross[-]examination Officer Aker testified that they did not find
any property of the victim on [Appellant] when he was arrested.
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Trial Court Opinion, 7/16/2018, at 2-3 (citations omitted). The
Commonwealth rested after the foregoing testimony. Appellant did not
testify nor did the defense present any witnesses.
On October 23, 2017, Appellant was found guilty of the
aforementioned crimes. On January 22, 2018, Appellant was sentenced to
24 to 48 months’ incarceration followed by three years’ probation. On
January 29, 2018, Appellant filed a post-sentence motion, which the trial
court denied the next day. This timely-filed appeal followed.1 On appeal,
Appellant challenges the sufficiency of the evidence supporting his
convictions. Appellant’s Brief at 5. He also contends the trial court abused
its discretion by denying his post-sentence motion challenging the weight of
the evidence. Id.
Appellant’s sufficiency and weight challenges rest upon similar
arguments; so we shall address them together. The crux of Appellant’s
arguments on both issues is that the victim’s identification of Appellant as
the assailant who robbed her and her testimony as to the same is so
unreliable such that the “identification falls patently below proof beyond a
reasonable doubt” and therefore Appellant’s convictions “were shocking to
the judicial conscience[.]” Id. at 9-10.
1
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant specifically points to the victim’s lack of “sufficient
opportunity to observe her assailant because the incident lasted only a
matter of seconds, occurred late at night, and there was no testimony that
the street was illuminated.” Id. at 11. Appellant argues that because the
victim was only able to provide the police with a “general description” and
because there was no corroborating evidence to show Appellant was
“involved in the incident,” the evidence proffered by the Commonwealth at
trial was insufficient to establish guilt. Id. at 11, 15-16 (citing
Commonwealth v. Crews, 260 A.2d 771 (Pa. 1970) and Commonwealth
v. Wiley, 432 A.2d 220 (Pa. Super. 1981)). In the alternative, based on
the circumstances that existed at the time of the victim’s identification, as
detailed supra, Appellant argues “the identification was highly circumspect”
and thus the trial court’s finding of guilt was against the weight of the
evidence. Id. at 18.
Our standard of review in challenges to the sufficiency of the evidence
is to determine
whether, viewing all the evidence admitted at trial in the light
most favorable to the [Commonwealth as the] verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
[the above] test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
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proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)
(citation omitted).
The trial court responded to Appellant’s sufficiency claim as follows.
[T]he victim credibly described her attacker as a black male
wearing dark clothing and that he specifically had a blue
bandana wrapped around his head. The description of the
attacker was broadcast to the police and [Appellant] was found
within minutes only five blocks from the attack and the clothes
he was wearing matched the description of those worn by the
attacker exactly. Shortly after [Appellant was] apprehended, the
victim identified [Appellant] as the attacker. While there was
evidence that the victim may have consumed alcohol, there was
absolutely no evidence that she was intoxicated to the extent
that she was unable to [perceive adequately] the events during
the attack or subsequently identify [Appellant]. While it is
acknowledged that the attacker approached the victim from
behind and the assault took place very quickly, the evidence
establishes that the victim had sufficient opportunity to observe
her attacker and identify him as a black male along with his
clothing and a blue bandana, which she specifically observed.
It is recognized that in a jury trial an instruction pursuant
to Commonwealth v. Kloiber, 106 A.2d 820 [(Pa. 1954)]
should be given to jurors that they should receive evidence of
eyewitness identification with caution where the witness is not in
a position to clearly observe the assailant; the witness is not
positive as to identity; positive statements made by the witness
as to identity are weakened by qualification; or, by the failure to
identify a defendant on one or more prior occasions. Although
not applicable in this case, the Kloiber instruction identifies
factors or other evidence that may be considered regarding the
reliability of eyewitness testimony. In this case, although the
opportunity to observe [Appellant] was brief, there is no
evidence that the victim did not have sufficient opportunity or
ability to perceive her assailant. There is no evidence she was
unable to give any description of the attacker or that she was
less than positive in identifying [Appellant] shortly after the
attack. Although [Appellant] argues that the identification the
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night of the attack was unduly suggestive, there is no specific
evidence that the victim’s identification was made solely based
on the circumstances surrounding the identification process.
Finally, there is no evidence that her identification was weakened
or qualified or that she ever failed to identify [Appellant]. In
addition, the testimony of Officers Anderson and Aker
established that [Appellant], who matched the description of the
attacker, was located within blocks of the attack within minutes
of the attack. Considering all of the evidence, and the reasonable
inferences therefrom, it is clear that the Commonwealth
established sufficient evidence to support the verdict.
Trial Court Opinion, 7/16/2018, at 4-5.
Reviewing the evidence in light most favorable to the verdict winner,
we conclude the trial court’s findings and conclusions are supported by the
record. See Commonwealth v. Minnis, 458 A.2d 231, 233 (Pa. Super.
1983) (concluding there was sufficient evidence to sustain Minnis’s
adjudication of delinquency when, inter alia, “the victim’s boyfriend [who
witnessed the robbery], although he qualified his identification by reference
to [Minnis’s] jacket, did not shy away from identifying appellant himself and
not just his clothing).”
Additionally, we find Appellant’s reliance upon Crews and Wiley
misplaced. As summarized by a prior panel of this Court in
Commonwealth v. Atkins, in Crews, supra,
identification of [Crews] was made by a witness on the basis of a
gold colored sweater the witness observed [the assailant]
wearing at the time of the crime. The sweater was found in
[Crew’s] home, but the witness could not positively testify that it
was the same sweater, although she did indicate that the color
appeared to be the same. Other witnesses also testified to
[Crew’s] similar height and clothing, and further evidence placed
[Crews] in proximity to the location of the crime and
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substantiated his association with a co-defendant. The [Supreme
C]ourt, in granting a motion in arrest of judgment, noted that:
(T)he Commonwealth’s sole identification evidence
was based on similar height and coloration, plus the
clothing. In light of the myriads of people who fit the
height and coloration description, and in light of the
commonness of a gold sweater . . . the evidence
failed to point with sufficient certitude to Crews as
the perpetrator of the crime. The jury was forced to
[g]uess [whether it was Crews or another man who
committed the crime]. Our system recoils at sending
a man to prison for the rest of his life on a [g]uess.
Atkins, 335 A.2d 375, 377 (Pa. Super. 1975).
In Wiley, supra, this Court found that the evidence of Wiley’s
identification was insufficient to support a finding of guilt beyond a
reasonable doubt to sustain Wiley’s convictions for burglary and theft.
Wiley, 432 A.2d at 220. In that case, the victim, Barbara Carino, was
working at a restaurant she owned, when she was informed that someone
was in her apartment, which was located above the restaurant. Id. at 221.
Carino asked Philip Craig to accompany her upstairs to investigate. Id.
After entering the apartment and “[w]hile examining the scene, a black male
of medium build ran through her kitchen, down the hall, down the stairway,
and out the front door.” Id. She only saw him for a few seconds but
“believed, however, that he was [] Butchy Deas, a black male whom she had
employed in the past to clean her apartment, and who had access to it.”
Id. However, Craig told police that it might have been Wiley. At trial, Craig
first testified that he was “about 50 percent” sure that Wiley was the
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individual he saw running out of the apartment. Id. at 222. Later, Craig
stated he was “70 percent’” sure. Id. This Court reversed Wiley’s
conviction, concluding the identification of Wiley was insufficient based upon
Craig’s uncertainty in his identification, Carino’s identification of another
man, and that fact there was no additional corroborating evidence.
In this case, unlike in Crews and Wiley, the victim’s identification was
unequivocal. She testified that despite the entire incident happening “very
fast,” she was able to see Appellant as he robbed her of her belongings. She
provided a description to police and was able to identify Appellant, who was
found in close proximity to where the robbery took place, shortly after the
incident occurred. N.T., 10/23/2017, at 11-14, 23. Clearly, the evidence
presented at Appellant’s non-jury trial supporting the identification of
Appellant was much stronger than what was presented in Crews and Wiley.
“As such, the present case is controlled by the more general rule that any
uncertainty in an eyewitness’s identification of a defendant is a question of
the weight of the evidence, not its sufficiency. We therefore conclude that
[Appellant’s] argument that the evidence at trial was insufficient to sustain
his convictions fails.” Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa.
Super. 2006).
Furthermore, we conclude the trial court did not abuse its discretion in
determining the verdict was not against the weight of the evidence. Trial
Court Opinion, 7/16/2018, at 6.
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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.
In reviewing the propriety of identification evidence, the
central inquiry is whether, under the totality of the
circumstances, the identification was reliable....
As this Court has explained, the following factors are to be
considered in determining the propriety of admitting
identification evidence: the opportunity of the witness[ ] to view
the perpetrator at the time of the crime, the witness’[s] degree
of attention, the accuracy of [her] prior description of the
perpetrator, the level of certainty demonstrated at the
confrontation, and the time between the crime and
confrontation.
Commonwealth v. Brown, 23 A.3d 544, 557–58 (Pa. Super. 2011)
(citations and quotation marks omitted).
In light of the testimony provided at trial and considering the totality
of the circumstances, we conclude that the trial court did not abuse its
discretion in determining that the victim’s identification of Appellant was
reliable. Despite the brief encounter, the victim saw Appellant as he
wrestled for her purse, described him to police shortly after the incident
occurred, and unequivocally identified Appellant as her assailant after
Appellant was apprehended by police a short distance from the crime scene,
matching the victim’s description “exactly.” N.T., 10/23/2017, at 11-14, 24.
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The trial court found the victim’s testimony related to her identification of
Appellant credible. Based on the foregoing, it was not an abuse of discretion
for the trial court to hold that Appellant’s conviction for robbery and related
crimes based on the victim’s identification was not so contrary to the
evidence as to shock his sense of justice. See Commonwealth v. Lewis,
911 A.2d 558, 566 (Pa. Super. 2006) (pointing out that in “criminal
proceedings, the credibility of witnesses and weight of evidence are
determinations that lie solely with the trier of fact, [which] is free to believe
all, part, or none of the evidence.”) (citation and quotation marks omitted).
Accordingly, after a thorough review of the record and briefs, we find
Appellant has presented no issue on appeal which would convince us to
disturb his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2019
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