J-S61021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

OLAHJUWAN DUANE BURTON

                            Appellant                 No. 1879 WDA 2015


            Appeal from the Judgment of Sentence October 1, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003132-2015


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                           FILED AUGUST 24, 2016

        Olahjuwan Burton appeals from the judgment of sentence entered in

the Court of Common Pleas of Allegheny County on October 1, 2015,

following his non-jury trial conviction for robbery (bodily injury of the

victim),1 theft by unlawful taking,2 simple assault,3 reckless endangerment,4

harassment.5

        The trial court summarized the facts of this matter as follows:

____________________________________________


1
    18 Pa.C.S.A. § 3701(a)(1)(iv).
2
    18 Pa.C.S.A. § 3921(a).
3
    18 Pa.C.S.A. § 2701(a)(1).
4
    18 Pa.C.S.A. § 2705.
5
    18 Pa.C.S.A. § 2709(a)(1),(2),(3).
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      Ms. Knauer testified she had just completed her shift at work
      and had stopped at a Giant Eagle supermarket on January 21,
      2015 in Homestead, Pennsylvania at approximately 9:00 p.m.
      After she completed shopping, Ms. Knauer waited at a bus stop
      near the Giant Eagle. She got on the bus and arrived in
      Duquesne, Pennsylvania at approximately 10:00 p.m.          She
      began to walk to her residence. She was wearing a backpack
      and carrying her purse. She was also carrying a reusable tote
      that held the items she purchased from Giant Eagle. She was
      alone. She described the lighting as average. There were
      streetlights operating but they were not close to the area. She
      had walked less than a block when she was approached by
      Burton who began grabbing at the strap of her purse. The
      purse, however, got stuck under the backpack and Burton was
      unable to pull it from Ms. Knauer’s shoulder. During the tussle,
      Ms. Knauer ended up on the ground. Burton continued to
      forcefully attempt to take her purse. While Ms. Knauer was on
      the ground, Burton punched her three times in the face. One
      punch landed on her mouth. The other two landed near her
      right eye. The punches caused her tooth to break and she was
      bleeding. She continued to scream for help. Burton then
      reached to the ground, picked something up and fled the scene.
      Later, Ms. Knauer learned that her wallet had fallen out of her
      purse. She believed that Burton picked it up as he fled the
      scene. She then went to a nearby fire station to report the
      attack and to seek help.

      Ms. Knauer saw Burton’s face during the attack. She described
      Burton in detail to the police officers who investigated the attack.
      She described the assailant as being young, medium skinned
      black male and being slightly shorter than 5”8 with a medium
      build.   At the time of the attack, he was wearing gray
      sweatpants, sneakers and a blue hoodie. He had a goatee. Ms.
      Knauer identified Burton in a photo array provided by the police
      about one week after the incident. Ms. Knauer also identified
      Burton as her assailant at trial.

      Officer Thiem from the Duquesne Police Department testified
      that he had observed the defendant in the area of the attack
      approximately 30 minutes before the attack occurred. Burton
      was known to Officer Thiem from prior interactions. At the time,
      Burton was wearing gray sweatpants and a blue hoodie.

Trial Court Opinion, 4/19/2016, at 1-3 (citations omitted).


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      Following trial, the court sentenced Burton to a term of incarceration of

no less than four years to no more than eight years, followed by a two-year

term of probation.     On November 2, 2015, Burton filed post-sentence

motions, which were denied. On appeal, Burton raises one issue:

      1. Did the trial court abuse its   discretion by finding that a guilty
         verdict was not against the     weight of the evidence when the
         unreliable testimony of         the only eyewitness was so
         untrustworthy that basing       a verdict on this evidence was
         manifestly unreasonable?

      Burton argues that the trial court abused its discretion in finding

Burton guilty based on the victim’s/eyewitness’ identification of Burton as a

perpetrator because the identification “was highly unreliable since her

opportunity to witness the perpetrator was not good.” Appellant’s Brief, at

11-12.   He further argues that her “tenuous identification” was the only

piece of evidence tying Burton to the crime in question. Id.

      This court, when reviewing a challenge to the weight of the evidence,

must examine the record in order to determine if the trial court abused its

discretion. Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).

The focus of the review is the trial court’s exercise of discretion, and not

whether the trial court’s verdict is in fact against the weight of the evidence.

Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004).

Where the trial court has ruled on the weight claim below, an appellate

court’s role is not to consider the underlying question of whether the verdict

is against the weight of the evidence. Rather, appellate review is limited to

whether the trial court palpably abused its discretion in ruling on the weight

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claim.   Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super.

2007) (citations omitted).

     Discretion is an exercise of judgment, wisdom and skill, an ability to

reach a neutral decision within the boundaries dictated by the law.

Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). Review of the trial

court’s decision is extremely limited where the party challenges the weight

of the evidence based on the credibility of trial testimony. Rossetti, supra

at 1191. This Court shall reject a weight of the evidence claim, “unless the

evidence is so unreliable and/or contradictory as to make any verdict based

thereupon pure conjunction.” Id.

     When reviewing the decision of the trial court, this Court cannot

substitute its judgment for that of the fact-finder.      Commonwealth v.

Small, 741 A.2d 666, 672 (Pa. 1999). A fact-finder is free to believe all,

part, or none of the evidence. Commonwealth v. Jaroweski, 923 A.2d

425, 433 (Pa. Super. 2007). Awarding a new trial is warranted if “the jury’s

verdict is so contrary to the evidence as to shock one’s sense of justice and

the award of a new trial is imperative so that right may be given another

opportunity to prevail.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.

2013). However, the reviewing court should not award a new trial “because

of a mere conflict in the testimony or because the judge on the same facts

would have arrived at a different conclusion.” Widmer, supra at 751.

     The reliability of a challenged identification is to be judged under a test

employing the totality of circumstances and the factors that are relevant to

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that determination. These factors include: the opportunity of the witness to

view the criminal at the time of the crime, the witness’s degree of attention,

the accuracy of his prior description of the criminal, the level of certainty

demonstrated at the confrontation, and the time between the crime and the

confrontation.   Commonwealth v. Ransome, 402 A.2d 1379, 1381 (Pa.

1979).

      The trial court did not abuse its discretion in finding that the

eyewitness’s testimony linked Burton to the charged crimes. It is clear from

the record that the victim’s ability to observe the physical features of the

assailant’s physique was good. The fact that it was dark at the corner where

the assailant attacked the victim did not prevent the victim from noting

major characteristics of his appearance.        The victim gave a detailed

identification despite the fact that the assailant possessed an average-

looking appearance. Although the event occurred in a short amount of time,

the victim’s description of the assailant’s clothing matched what he wore

thirty minutes before he attacked the victim.     The victim did not hesitate

when she chose Burton’s picture out of eight pictures from a photo array

where all the individuals in the array were similar-looking. Prior to the trial

and during the trial the witness’s identification was consistent, convincing

and clear. We discern no abuse of discretion by the trial court in rejecting

Burton’s weight of the evidence claim. Rabold, supra.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




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