J-A08022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KHALILAH STAFFORD

                            Appellant                   No. 2860 EDA 2015


            Appeal from the Judgment of Sentence August 19, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014292-2014


BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                                FILED MAY 19, 2017

        Khalilah Stafford appeals from her judgment of sentence, entered in

the Court of Common Pleas of Philadelphia County, following her convictions

for aggravated assault, a felony of the second-degree,1 possession of an

instrument of crime (PIC)2, simple assault3 and recklessly endangering

another person (REAP).4         Stafford challenges the sufficiency and weight of

the evidence. After careful review, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2702.
2
    18 Pa.C.S.A. § 907.
3
    18 Pa.C.S.A. § 2701.
4
    18 Pa.C.S.A. § 2705.
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     The trial court set forth the relevant factual history as follows:

     The [c]omplainant, [Kendra Edmunds], testified that on
     November 8, 2014 at around 2:20 a.m., she was asleep at a
     friend’s house located on the 3100 block of North 28 th Street in
     Philadelphia, Pennsylvania.        [Edmunds] stated that she
     awakened by being “sliced four times.” [Edmunds] explained
     that at first she did not notice, but then became aware of her
     injuries and went to the hospital. [Edmunds] stated, “I got cut
     on my arm, my shoulder, my arm on the one side, and my
     buttocks.” She clarified that this was on her right side.

     On cross-examination, [Edmunds] testified that she did not see
     the person who sliced her, but knew . . . it was [Stafford]. She
     stated that there was a party at the house and that she went to
     bed when the party was over, around 1:30 a.m., but that there
     were still people in the house. [Edmunds] further stated that
     she did not see [Stafford] at the house before she went to bed.

                                     ...

     [Robert Harvin] affirmed that [Stafford] was his girlfriend on
     November 8, 2014. He testified that he spoke to detectives
     around 6 a.m., but that he was still intoxicated. When asked if
     he recognized the statement he made to detectives . . . [Robert
     Harvin] verified that it was his signature, but that he did not
     want to sign it. [Robert Harvin] affirmed the following statement.

           Q:    What can you tell me about [Stafford]?

           A:    She is my ex-girlfriend.

     However, [Robert Harvin] clarified that he never told detectives
     that [Stafford] was his ex-girlfriend. [Robert Harvin] explained
     that he could not remember what time it was when the
     statement was taken and that he was too intoxicated to
     remember giving and signing the statement.

     [Robert Harvin] testified that he did not see [Stafford] after the
     party ended, but said he saw her leave in a cab . . . around 1:30
     a.m. and then changed the time to [12:00 a.m.]. [Robert
     Harvin] affirmed that he did not see [Stafford] at the party
     between [12:00] a.m. and 1:30 a.m.

                                     ...


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     [Eloris Harvin] testified that she lives at 3131 North 28 th Street
     with her sons Andre and Robert. [Eloris Harvin] stated that she
     knows [Stafford] through Robert Harvin. On November 8, 2014,
     [Eloris Harvin] saw [Stafford] around 2:30 a.m. in the morning,
     but could not recall the exact time. [She stated]:

           What happened was we had a birthday party.
           Anyway things happened, then after that, you know,
           we were getting ready to go to bed, [Andre Harvin]
           and I, and we heard a knock on the door. So we
           thought it was a straggler who left the party. In the
           meantime, just as [Andre Harvin] was getting ready
           to close the door [Stafford] barges right upstairs. I
           thought she was coming to use the bathroom and
           she runs into the front bedroom where . . . [Robert
           Harvin] and [Edmunds] were asleep.         And as I
           turned around and looked[,] [Stafford] was running
           out the door. I remember because I know what
           [Stafford] had on.

     [Eloris Harvin] testified that “it didn’t even take ten minutes.”
     [Eloris Harvin] stated that [Edmunds], came downstairs to go to
     the hospital because she was bleeding.

     On cross-examination, [Eloris Harvin] affirmed that she was
     scheduled to go to cataract surgery a few days after the
     incident. When prompted about her identification of [Stafford],
     [Eloris Harvin] repeatedly stated that she knew what [Stafford]
     looked like and that her eyesight was not that bad that she could
     not see.     [Eloris Harvin] affirmed that detectives read her
     statement because she was not able to read it on her own.
     [Eloris Harvin] testified that she was in the living room when she
     saw [Stafford] come in through the door, run up the stairs[] and
     later come down the stairs. [Eloris Harvin] stated that she did
     not see [Stafford] with anything [in] her hands but
     acknowledged that there was a knife in front of her door.

     [Eloris Harvin] testified repeatedly that [Stafford] never left the
     party. She stated that [Stafford] was getting things together for
     the party with her earlier during the day and that she never saw
     [Stafford] leave the party. [Eloris Harvin] further stated that
     [Stafford] was wearing a black and gold jumpsuit with shoes to
     match. [Eloris Harvin] did not know if [Stafford] got into a fight
     with anyone that day. She testified that [Edmunds] and Robert
     Harvin were sleeping upstairs at the time of the incident. [Eloris


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J-A08022-17


      Harvin] stated that they went to sleep at about [11:00] p.m. and
      added, “[Edmunds] was already asleep[,] [a]nd [Robert Harvin]
      didn’t know she was in there. I have two bedrooms. He did not
      know she was in there until it happened.”

      [Eloris Harvin] testified that she did not see anything in
      [Stafford’s] hands when she came in and later ran down the
      steps, but affirmed that police recovered a knife from the top of
      the television. When prompted further about whether [Stafford]
      was carrying anything, [Eloris Harvin] stated, “[w]ell how did it
      get there?” and then stated that she did see [Stafford] carrying
      the knife. When approached with her previous statement . . . to
      detectives on November 8, 2014 at 4:40 a.m., [Eloris Harvin]
      affirmed that she remembered speaking with detectives at that
      time. [Eloris Harvin] verified the following portion of her
      statement and affirmed her signature on the statement:

            Q: Did you see [Stafford] with a knife or cutting
            instrument?

            A: No[.]

      [R]ecords from Temple University Hospital for [Edmunds],
      [were] marked and moved into evidence. A stipulation was
      entered as to the admissibility that [Edmunds] presented on
      November 8, 2014 at 3:28 a.m. for multiple stab wounds. She
      was treated with stitches and a tetanus shot. The wounds were
      a [two-inch] wound, laceration to her right arm[,] a [1.2-inch]
      laceration to her right shoulder[,] [and] a [1.2-inch] laceration
      to her right hip.

Trial Court Opinion, 5/18/16, at 2-6 (citations omitted).

      On June 18, 2015, following a bench trial, the trial court found Stafford

guilty of aggravated assault, PIC, simple assault and REAP. On August 28,

2015, Stafford filed a timely post-sentence motion claiming that the

evidence was insufficient and the verdict was against the weight of the

evidence. Stafford filed a timely notice of appeal, and pursuant to Pa.R.A.P.

1925(b), she filed a court-ordered concise statement of errors complained of



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on appeal on December 23, 2015. Stafford raises the following issues for

our review:

      1. Was not the evidence insufficient as a matter of law to sustain
         a conviction for aggravated assault, [PIC], simple assault[]
         and [REAP], where the Commonwealth failed to establish who
         caused the complaining witness to be cut, whether [Stafford]
         was present at the time of the incident[] and whether a knife
         was recovered from the scene?

      2. Was not the verdict so contrary to the weight of the evidence
         as to shock one’s sense of justice, therefore requiring a new
         trial, where the only witness to put appellant at the scene of
         the incident was visually impaired, made her identification by
         clothing alone[] and gave completely inconsistent testimony?

Brief of Appellant, at 3.

      Stafford first claims that the unreliable testimony of Eloris and Robert

Harvin is insufficient to sustain a conviction for the above charges.                In

reviewing a challenge to the sufficiency of the evidence, we must determine

whether,   viewing   the    evidence   in   the   light    most    favorable   to   the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that each and every element of

the   crimes   charged      was   established     beyond    a     reasonable   doubt.

Commonwealth v. Randall, 758 A.2d 669 (Pa. Super. 2000).

      A person commits aggravated assault, a felony of the second degree, if

he attempts to cause or knowingly causes bodily injury to another with a

deadly weapon. 18 Pa.C.S.A. § 2702. A person commits possession of an

instrument of crime, a misdemeanor of the first degree, if he possesses any

instrument of crime with the intent to employ it criminally. 18 Pa.C.S.A. §


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907.   An instrument of crime is: (1) anything specially made or specially

adapted for criminal use, or (2) anything used for criminal purposes and

possessed by the actor under circumstances not manifestly appropriate for

lawful uses it may have.      Id.   A person is guilty of simple assault, a

misdemeanor of the second degree, if he (1) attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another; (2)

negligently causes bodily injury to another with a deadly weapon; or (3)

attempts by physical menace to put another in fear of imminent serious

bodily injury.    18 Pa.C.S.A. § 2701.         A person commits REAP, a

misdemeanor of the second degree, if he recklessly engages in conduct

which places or may place another person in danger of death or serious

bodily injury. 18 Pa.C.S.A. § 2705.

       Stafford’s argument rests on her assertion that Eloris Harvin’s

“opportunity to observe the assailant was minimal, her vision was severely

compromised, she was not paying full attention to the assailant and she had

no other basis to make an identification.” Brief of Appellant, at 16.

       Generally, in reviewing the propriety of identification evidence, the

central inquiry is whether, “under the totality of the circumstances, the

identification was reliable.” Commonwealth v. Brown, 23 A.3d 544, 558

(Pa. Super. 2011) (citing Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.

Super. 2003); see also Commonwealth v. Jones, 954 A.2d 1194 (Pa.

Super. 2008) (evidence of identification need not be positive and certain to

sustain conviction). In determining the reliability of identification testimony,

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the finder of fact should evaluate the witness’ opportunity to view the

perpetrator at the time of the crime, the witness’ degree of attention, the

accuracy   of   description     provided,    the   level   of    certainty    when    the

identification takes place, and the time between the crime and confrontation.

See Commonwealth v. Sanders, 42 A.3d 325 (Pa. Super. 2012). “Given

additional evidentiary circumstances, any indefiniteness and uncertainty in

the identification testimony goes to its weight.” Commonwealth v. Orr, 38

A.3d 868, 874 (Pa. Super. 2011).

     Eloris Harvin had an opportunity to observe Stafford before, during

and after Robert Harvin’s birthday party, and stated she knew Stafford

“[t]hrough [Robert Harvin].”         N.T. Waiver Trial, 6/18/15, at 22.             Eloris

Harvin was also able to identify Stafford by her unique “black and gold jump

suit” and matching shoes, which she was wearing when, at approximately

2:30 a.m., she entered the front bedroom in which Edmunds was sleeping.

N.T. Waiver Trial, 6/18/15, at 27-28.           These observations served as an

independent     basis    for   her   in-court   identification   of     Stafford.    See

Commonwealth            v.   Johnson,    615    A.2d    1322     (Pa.     Super.    1992)

(independent basis for in-court identification existed where witness had

previously seen defendant on several occasions and positively identified

defendant at preliminary hearing).          Moreover, Eloris Harvin reiterated her

certainty when she stated, “[m]y eyesight was not that bad – excuse me –

my eyesight was not that bad that I couldn’t see.”                    N.T. Waiver Trial,

5/18/17, at 25.

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     Edmunds suffered four knife wounds, one each on her two arms,

shoulder and buttocks. Edmunds’ medical records, indicating she received

stitches and a tetanus shot, corroborate the extent of her wounds.      See

Commonwealth v. Gray, 867 A.2d 560, 569 (Pa. Super. 2005) (stipulated

admission of victim’s hospital records corroborated evidence of aggravated

assault, simple assault and PIC). Moreover, Eloris Harvin’s testimony placed

Stafford at the scene moments before Edmunds was stabbed. Eloris Harvin

witnessed Stafford enter her home, run upstairs – where the front bedroom

Edmunds was sleeping in is located – and then run back down the stairs and

out of her home.    Only Eloris Harvin, Andre Harvin, Robert Harvin and

Edmunds were present in the home when Stafford entered.             Shortly

thereafter, Eloris Harvin witnessed Edmunds emerge from the front bedroom

with stab wounds.    Police later recovered a knife from the top of Eloris

Harvin’s television near the front door, which Eloris Harvin discovered “in

front of [her home’s] door”. N.T. Waiver Trial, 6/18/15, at 26. Moreover, it

is uncontested that Stafford attended the party and was either currently

dating or had previously dated Robert Harvin, who was in bed with Edmunds

when she was stabbed.

     The Commonwealth presented abundant of Stafford’s culpability for

Edmunds’ stabbing. See Commonwealth v. Hopkins, 747 A.2d 910 (Pa.

Super 2000) (Commonwealth may sustain burden of proving every crime

beyond reasonable doubt by means of wholly circumstantial evidence).




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Therefore, the evidence was sufficient to establish all of the above offenses.

Randall, supra.

      Stafford’s final claim is that the verdict was against the weight of the

evidence. We disagree.     When a defendant challenges the weight of the

evidence, relief in the form of a new trial may only be granted where the

verdict shocks one’s sense of justice. Commonwealth v. Champney, 832

A.2d 403, 408 (Pa. 2003). This Court reviews the trial court’s exercise of

discretion in ruling on the weight claim, not the underlying question of

whether the verdict was against the weight of the evidence. Id.

      Based on Eloris Harvin’s testimony detailing Stafford’s presence at her

home when Edmunds was stabbed, Stafford’s relationship with Robert Harvin

and Edmunds’ medical records, it was reasonable for the trial court to

conclude that Stafford’s conviction does not shock one’s sense of justice.

Therefore, the trial court did not abuse its discretion. Id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2017




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