J-S13023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHAUN LEATHERBERY
Appellant No. 572 EDA 2016
Appeal from the Judgment of Sentence January 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013503-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 10, 2017
Rashaun Leatherbery appeals from the judgment of sentence, entered
in the Court of Common Pleas of Philadelphia County, after he was convicted
of aggravated assault,1 simple assault2 and conspiracy.3 After careful
review, we affirm.
The trial court aptly summarizes the underlying facts of the case as
follows:
Jimmie Grant, the victim in this matter, and Kuwsh Muhammad
were friends, occasionally recording music together. On March
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2702(a)(1).
2
18 Pa.C.S. § 2701(a).
3
18 Pa.C.S. § 903.
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14, 2014, Muhammad picked Grant up to drive to a recording
studio. On their way, Muhammad stopped at 60th and Master
Streets in Philadelphia, exited the car, and entered a store while
Grant remained in the passenger seat. Moments later, Grant
saw Muhammad walking out of the store and two men, later
identified as defendants Rashaun Leatherbery and Imir Glover,
walking behind Muhammad. Grant, sensing trouble, stepped out
of the passenger side of the car, at which time the three men
approached Grant, with Leatherbery inquiring about another
man, Mike Glover. After a brief dispute, Leatherbery punched
Grant and continued to strike him. Suddenly other men joined
in, and at least one slammed Grant to the ground. Grant was
repeatedly punched and kicked, testifying that he fell in and out
of consciousness. Security footage obtained from a nearby store
showed a total of five men in the area around Grant for about
three minutes.4
At trial, Grant recalled that Muhammad pulled him off the
ground, brought him home, then eventually to the hospital.
Grant was released from the hospital two days later after
suffering two broken ribs, losing multiple teeth, and receiving
stitches in his head and mouth. He also testified that his phone
and about $70 were taken from his pockets and never
recovered.
Trial Court Opinion, 7/14/16, at 3 (citations to record omitted). On October
30, 2014, Leatherbery, Glover and Muhammad were arrested and charged
with aggravated assault and simple assault as well as criminal conspiracy.
After a preliminary hearing, the three men were bound over for trial on all
charges.
Leatherbery filed a pre-trial motion to suppress the victim’s out-of-
court and in-court identifications based on the allegation that the
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4
The video footage, however, did not provide an independent basis for
identifying any of the perpetrators other than Muhammad. N.T. Non-Jury
Trial, 10/26/15, at 46.
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identifications were suggestive and that there had been no reliable
identification made because the witness was tainted. N.T. Suppression
Motion, 10/24/15, at 4-5. The court held a hearing on the motion where
Detective Greg Holman was the sole witness. Detective Holman testified
that the victim described his assailant as “being six-foot-one, 180 to 200
pounds, light complexion, Sunni beard, with short wavy hair.” Id. at 12.
Four days after the assault, the victim was interviewed by Detective Holman.
Holman testified that the victim told him he knew one of his assailants by
the nickname, “Shaun T,” and that he was a relative of Mike Glover, but had
never personally met him prior to the incident. At that point, Holman looked
up information on Mike Glover that indicated he had been a co-defendant of
Leatherbery on several occasions. When the detective pulled up a photo of
Leatherbery, the victim immediately identified him as “Shaun T,” one of his
assailants. The court found the detective’s testimony credible and denied
the motion.
Leatherbery waived a jury trial. Trial took place on October 26, 2015,
before the Honorable J. Scott O’Keefe. The Commonwealth did not present
the victim’s out-of-court identification at trial. Leatherbery was convicted of
the above-stated offenses; his co-defendants were acquitted. On January 8,
2016, Leatherbery was sentenced to 2-3 years in prison, followed by 5 years
of probation. This timely appeal follows.
On appeal, Leatherbery raises the following issues for our
consideration:
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(1) Was the evidence insufficient to convict [Leatherbery] of
all the offenses because there was no evidence of showing
beyond a reasonable doubt that [Leatherbery] was the
perpetrator of the offense?
(2) Did the trial court err in denying the defense[’s] motion to
suppress the identification of [Leatherbery] by the
complainant because of [the] police[’s] unduly suggestive
identification procedures at a photo display when the
Commonwealth did not meet its burden of establishing by
clear and convincing evidence . . . that the complainant’s
trial testimony was reliably based on the complainant’s
observation at the time of the crime?
Appellant’s Brief at 2.
Leatherbery asserts that the complainant’s identification testimony is
insufficient to sustain his convictions where the attack occurred at night, the
complainant lost consciousness at some point during the attack, the victim
had never met Leatherbery before and was under the influence of drugs at
the time of the crime, there was no motive for Leatherbery’ s actions, and
there was no physical or circumstantial evidence linking Leatherbery to the
crime.
The identity of a defendant must be proven beyond a reasonable
doubt, the same as any other essential element in a criminal prosecution.
Commonwealth v. Shelbert, 171 A.2d 574, 576 (Pa. Super. 1961).
However, a weak identification, together with other evidence in a case, may
be sufficient to convince a jury of the defendant’s guilt beyond a reasonable
doubt. Id. Evidence of identification need not be positive and certain to
sustain a conviction. Commonwealth v. Woodbury, 477 A.2d 890, 893
(Pa. Super. 1984). Moreover, any indefiniteness and uncertainty in
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identification testimony goes to the weight and credibility of his or her
testimony. Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007).
Although the victim may never have personally met Leatherbery
before the assault, the victim knew Leatherbery was Mike Glover’s cousin
and knew of him by the nickname, “Shaun T.” Moreover, evidence showed
that the victim knew the entire incident was instigated by Mike Glover.
Following the attack, the victim gave the police Leatherbery’s nickname and
an accurate physical description of his assailant, including height, weight,
hair and facial hair. Under such circumstances, we cannot find that the
identification was against the weight of the evidence.
Leatherbery next contends that the trial court erred in failing to
suppress the victim’s in-court identification where the victim’s out-of-court
photo identification four days after the incident was unduly suggestive and
violated his due process rights. Specifically, he claims that because the
victim’s in-court identification did not have any independent origin, the
identification was not convincingly established.
“In reviewing the propriety of identification evidence, the central
inquiry is whether, under the totality of the circumstances, the identification
was reliable. Suggestiveness in the identification process is but one factor to
be considered in determining the admissibility of such evidence and will not
warrant exclusion absent other factors.” McElrath v. Commonwealth, 592
A.2d 740, 742 (Pa. Super. 1991), citing Commonwealth v. Sample, 468
A.2d 799, 801 (Pa. Super. 1983). The following factors are to be considered
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when determining the admissibility of identification evidence: (1)
opportunity of witness to observe perpetrator at time of crime, (2) witness’s
degree of attention; (3) accuracy of witness’s prior description of
perpetrator; (4) level of certainty witness demonstrates at confrontation;
and (5) time between crime and confrontation. Commonwealth v. Carter,
643 A.2d 61, 71 (Pa. 1994).
At the suppression hearing, the defense relied upon Commonwealth
v. Fowler, 352 A.2d 17 (Pa. 1976), to argue that the identification
procedure used by Detective Holman was unfair, particularly in light of the
fact that the victim had never met Leatherbery before. In Fowler, our
Supreme Court found that the trial court erred in suppressing identification
evidence “that was the result of an impermissible suggestion arising from
pre-lineup displays of photographs of the [defendant] and the line-up itself.”
Id. at 18. Specifically, the victim’s daughter, who was present when her
father’s assailants shot him at point-blank range in their house, told the
police what had happened at the scene of the crime and described one of the
assailants as being “of slender build, nineteen to twenty-one years old,
approximately six feet tall, clean shaven, with medium brown skin, wearing
a dark suit, white shirt, small dark tie, dark straw hat and sunglasses.” Id.
at 23. During the following three months, the victim’s daughter was
repeatedly shown groups of photographs to determine whether she could
identify anyone that was in her father’s home at the time of the murder.
She was shown hundreds of photographs, generally in groups of ten to
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twenty. She identified the defendant several times, “h[olding] his
photograph out” because although the defendant looked much older, he
resembled the man she had seen on the day in question. Id. However, she
never positively identified any of the photographs as being the man who was
involved in the crime.
The victim’s daughter was interviewed several more times over a
three-month period, during which time she had a chance encounter with the
defendant at a restaurant in New Jersey where she had gone with her
mother and husband. The daughter heard the defendant say “that is the
wife and daughter, and she doesn’t recognize me.” Id. at 24. The daughter
wrote down the defendant’s license plate number; however, she said nothing
to her husband and mother about what she had heard in the restaurant until
they later arrived in New York where she called the police and gave them the
defendant’s license plate number. Several weeks later, police showed the
daughter another group of photographs, one of which was of the defendant.
Again, the daughter failed to identify the defendant, stating that she could
not give a positive identification unless she saw him in person. The following
day, the police arrested the defendant and placed him in a line-up where the
daughter said the defendant “looked like the same person I had seen but I
would like to hear him speak.” Id. All of the men in the line-up were asked
to speak; after which, she positively identified the defendant as her father’s
assailant. Id.
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On appeal, the Court considered the totality of the circumstances
affecting the identification in the case, concluding that the process used was
unnecessarily suggestive and that the prosecution failed to establish by clear
and convincing evidence that the in-court identification had an “independent
origin” in the daughter’s observations at the time of the crime. Not only was
the suggestiveness a result of the repeated display of the defendant’s
photograph, but it was also suggestive because his photograph stood out as
a significantly different type of photo (full frontal view versus a mug shot).
Id. at 24-25. The Court concluded that each of these factors “increases the
danger, inherent in all photographic identification procedures, that the
identification process will lead to a misidentification.” Id. at 25.
The facts of Fowler are clearly distinguishable from the instant case.
Here, the victim was able to view his assailants at the crime scene.
Although it was dark and he was ultimately knocked unconscious as a result
of the assault, the victim knew that the attack involved an issue involving
Mike Glover, the defendant’s cousin. The victim was able to give a rather
detailed description of his assailants and also knew the nickname of the
defendant. The police did not suggestively and repeatedly show the victim
pictures of possible suspects. Rather, at the moment the officer pulled up
Leatherbery’s photo, the victim positively identified him as “Shaun T.”
Under these circumstances, we do not find that Detective Holman’s
identification process was such that the “likelihood of [such] misidentification
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. . . violate[d the] defendant’s right to due process[.] Fowler, 352 A.2d at
25, citing Neil v. Biggers, 409 U.S. 188, 198 (1972).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
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