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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J-A30033-18


     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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J-A30033-18


      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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J-A30033-18


      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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J-A30033-18


     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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J-A30033-18


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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