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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                            :
SAM WALKER,                                 :         No. 2052 EDA 2018
                                            :
                          Appellant         :


         Appeal from the Judgment of Sentence Entered March 9, 2018,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0006309-2017


BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED FEBRUARY 11, 2019

        Sam Walker appeals from the March 9, 2018 judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after a jury

convicted him of second-degree murder, robbery, and conspiracy to commit

robbery.1     The trial court imposed the mandatory life sentence for the

murder conviction and imposed no further penalty on the robbery and

conspiracy convictions. We affirm.

        The trial court set forth the following:

              On May 14, 2017, around 2:00 p.m. or 3:00 p.m.,
              Deborah Leatherberry and her boyfriend, the victim,
              James Bolden,[Footnote 2] arrived at the home of
              Leatherberry’s mother at 51st and Arch Streets in
              Philadelphia to celebrate Mother’s Day.         Shortly
              thereafter, several of Leatherberry’s sisters and their
              children arrived, including Leatherberry’s sister

1   18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), and 903.
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          Starkeisha, and her boyfriend, [appellant]. A few
          hours later, while Leatherberry, Bolden, [appellant],
          and Leatherberry’s nephew were sitting on the
          porch, Bolden took money from his pocket and asked
          Leatherberry to go to the store and buy him beer.
          Bolden had recently acquired several hundred dollars
          after his father died. Leatherberry went to the store
          on the next block, bought beer, and returned to her
          mother’s house.

                [Footnote 2]   James Bolden was also
                known by the name “Storm.”

          A few hours later, Leatherberry, her nephew, her
          sister Priscilla, Bolden and [appellant] were sitting on
          the porch. While on the porch, [appellant] said
          something to Bolden, and Bolden took offense,
          asking [appellant]: “are you talking to me?” In
          order to diffuse the situation and prevent an
          altercation, Leatherberry suggested that they go
          back inside her mother’s house. However, after
          everyone went inside, [appellant] punched Bolden
          while they were in the living room. In response,
          Bolden attempted to punch [appellant] but missed,
          and [appellant] again punched Bolden, causing him
          to fall to the ground. Bolden moved underneath a
          table in the living room, but [appellant] continued to
          hit and stomp on him. Eventually, Leatherberry
          threatened to call the police, but [appellant] stopped
          beating Bolden. Leatherberry still called the police,
          but [appellant] was gone before the police arrived at
          the house.

          Sometime after the police left, around 9:45 p.m.,
          Leatherberry and Bolden walked to 52nd and Market
          Streets so that they could take the Market-Frankford
          Line (“the El”) to their home in Germantown. While
          the couple was standing in front of a pillar waiting for
          the El to arrive, [appellant] sprang out from behind
          the pillar and punched Bolden in the head,
          immediately causing Bolden and Leatherberry to fall
          to the ground. Meanwhile, another man who was
          with [appellant] approached the couple, now on the
          ground, from the other side of the pillar and reached


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            into Bolden’s pocket to take the money that Bolden
            had recently acquired after his father’s death. As the
            man stole Bolden’s money, [appellant] continued to
            strike Bolden in the head. Then, [appellant] and the
            other man, who had a hoodie pulled over his face,
            ran away. While all of this occurred, Leatherberry
            was attempting to help her boyfriend and screaming
            for someone to call the police.

            Shortly thereafter, Officers [Ashiq] Damani and
            [Kevin] Tilghman were the first officers to arrive on
            the scene.     Leatherberry told the officers that
            [appellant] and another man[,] whom she could not
            recognize because of the hoodie obscuring his face,
            attacked Bolden.    Bolden was bleeding from his
            mouth and face and had a difficult time standing. An
            ambulance arrived and transported Bolden to
            Lankenau Hospital. The next day, May 15, 2017,
            Bolden was pronounced dead. The medical examiner
            determined that Bolden’s cause of death was head
            trauma.

Trial court opinion, 10/3/18 at 2-4 (record citations omitted).

      The record reflects appellant filed a timely post-sentence motion which

the trial court denied. Appellant then filed a timely notice of appeal. The

trial court ordered appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b).            Following the grant of an

extension of time, appellant timely complied. The trial court thereafter filed

its Rule 1925(a) opinion.

      Appellant raises the following issue for our review: “Was the verdict

against the weight of the evidence, and did the trial court abuse its

discretion in so finding?” (Appellant’s brief at 2.)

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question


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            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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations

omitted; emphasis omitted).

            The weight of the evidence is exclusively for the
            finder of fact who is free to believe all, part, or none
            of the evidence and to determine the credibility of
            the witnesses. An appellate court cannot substitute
            its judgment for that of the finder of fact. Thus, we
            may only reverse the . . . verdict if it is so contrary
            to the evidence as to shock one’s sense of justice.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).

      Here, to bolster his weight challenge, appellant points out various

instances of what he deems as evidentiary “inconsistencies.”            (Appellant’s

brief at 5-6.) For example, appellant contends that the verdict was against

the weight of the evidence because the poor quality of the surveillance

videotape   from    which    a   witness     identified   appellant   rendered   the

identification unreliable.   (Id. at 8-9.)    In so contending, appellant claims

that “[a]ll that can be determined from the testimony is that the height,

build, facial hair and type of clothing were consistent with [appellant],” but




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that      [in   no   way,    however,   amounts   to   a   reliable   identification,

notwithstanding [the witness’s] firm belief.” (Id. at 9.)

          Appellant further contends that a statement made by Ms. Leatherberry

was inconsistent with a statement made by the victim which “gives rise to

questions regarding Ms. Leatherberry’s motive to perhaps protect [her

ex-boyfriend] at [appellant’s] expense.” (Id. at 10-11.) Appellant further

attacks Ms. Leatherberry’s credibility by pointing out that she had been

drinking alcohol and smoking marijuana prior to the attack on the victim;

that portions of her testimony were inconsistent with the testimony of her

mother; and that Ms. Leatherberry contradicted herself. (Id. at 10-13.)

          In so doing, appellant invites this court to assess witness credibility

and reweigh the evidence.          “The jury, as fact-finder[, however,] had the

duty to determine the credibility of the testimony and evidence presented at

trial.”    Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2016)

(citation omitted).         Appellate courts cannot and do not substitute their

judgment for that of the fact-finder.       See id.    Here, a jury of appellant’s

peers weighed the evidence and assessed the credibility of the witnesses

and determined that the Commonwealth’s evidence proved beyond a

reasonable doubt that appellant committed second-degree murder, robbery,

and conspiracy to commit robbery. After carefully reviewing the record, we

conclude that the jury’s verdict was not so contrary to the evidence so as to

shock one’s sense of justice. Rather, our review of the record supports our



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conclusion that the trial court properly exercised its discretion in denying

appellant’s weight of the evidence claim.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/11/19




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