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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KARIMA MONTGOMERY

                            Appellant                No. 1428 EDA 2015


               Appeal from the Judgment of Sentence May 1, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010953-2013


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                              FILED MARCH 29, 2016

        Karima Montgomery appeals the judgment of sentence entered May 1,

2015, in the Philadelphia County Court of Common Pleas. Montgomery was

sentenced to a period of time served to 23 months’ imprisonment, followed

by three years’ probation, after the trial court, sitting without a jury, found

her guilty of burglary, conspiracy, criminal trespass, theft and receiving

stolen property.1      On appeal, Montgomery challenges the weight of the

evidence supporting her convictions. For the reasons below, we affirm.

        The facts underlying Montgomery’s arrest, as summarized by the trial

court, are as follows:


____________________________________________


1
    18 Pa.C.S. §§ 3502, 903, 3503(a)(1)(ii), 3921, and 3925, respectively.
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            On August 7, 2013, at or about 12:15 a.m., complainant,
       Wajeeha Sharif, accompanied by her six year old son, returned
       home from work and discovered [Montgomery], along with
       Rahneshia Harold Ellis and two other persons inside her home.
       She began screaming at which time the individuals fled her
       home exiting from the basement. She immediately contacted
       the police and advised them that there were people inside her
       house.

              When the complainant entered her home she discovered
       that it had been ransacked. The contents of each drawer were
       emptied and strewn about, objects were scattered about in each
       room, and pictures slashed. She also noted that several items
       were missing including her pocketbook, a laptop computer,
       jewelry, and a gym bag. Complainant estimated that the value
       of the missing items was over $2,000.00.

             The complainant was interviewed at police headquarters
       where she told police that she recognized some of the
       perpetrators because they attended school with her daughter.
       However, she did not know their last names. When police asked
       if she had any photographs of the perpetrators, complainant
       produced her daughter’s school year book. Police retrieved the
       year book and upon paging through it the complainant identified
       three of the perpetrators she saw inside her residence.[2]

             The complainant did not give permission to any of the
       persons she saw the night of the incident to be inside her
       residence or to take any items therefrom. She also stated that
       she was 100% [] sure that [Montgomery] and Rahneshia Harold
       Ellis were two of the four persons she saw the night of the
       incident.

Trial Court Opinion, 9/9/2015, at 2-3 (record citations omitted).




____________________________________________


2
  The complainant subsequently identified the fourth co-conspirator, Raydine
Stanley, at Montgomery and Harold Ellis’s preliminary hearing. She stated
Stanley “was sitting behind me.” N.T., 12/15/2014, at 13. Stanley later
pled guilty for her role in the burglary.



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       Montgomery and Harold Ellis were subsequently arrested and charged

with the above-stated crimes. They proceeded to a joint, nonjury trial, and,

on December 15, 2014, were convicted of all charges.3

       Prior to the start of the sentencing hearing on May 1, 2015,

Montgomery’s counsel made an oral motion for extraordinary relief,

asserting the verdict was against the weight of the evidence.    In support,

counsel presented the testimony of Emily Smith, an investigator for the

Defender Association of Philadelphia. Smith testified that she spoke with the

complainant’s daughter, Fatima, who told Smith her mother admitted to her

that she made a mistake and that Montgomery “had nothing to do with this.”

N.T., 5/1/2015, at 14. When the trial court observed that the testimony was

double hearsay, and the only way to introduce it as impeachment evidence

was through Fatima herself, Montgomery’s counsel stated Fatima was

unwilling to cooperate. Id. at 17. The trial court denied the motion, and

sentenced Montgomery to three concurrent terms of time served to 23

months’ imprisonment, followed by three years’ probation for the charges of

burglary, conspiracy and criminal trespass. No further penalty was imposed

on the remaining convictions.4 This timely appeal followed.5
____________________________________________


3
  Stanley testified at trial that she committed the burglary with two other
individuals, neither of whom was Montgomery, and specifically stated Harold
Ellis was not involved. See N.T., 12/15/2014, at 31-40.
4
  Harold Ellis received the same sentence as Montgomery.          See N.T.,
5/1/2015, at 57-58.



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      Montgomery raises one issue on appeal:

      Did not the trial court abuse its discretion by denying []
      Montgomery’s post-trial motion for a new trial, as the verdict
      was so contrary to the weight of the evidence as to shock one’s
      sense of justice, where the Commonwealth presented the
      testimony of only one uncorroborated and inconsistent witness,
      and [] Montgomery completely refuted the witness’s
      identification testimony, such that a new trial is necessary in the
      interests of justice?

Montgomery’s Brief at 3.

      When considering a challenge to the weight of the evidence, we must

bear in mind:

      A weight of the evidence claim concedes that the evidence is
      sufficient to sustain the verdict, but seeks a new trial on the
      ground that the evidence was so one-sided or so weighted in
      favor of acquittal that a guilty verdict shocks one’s sense of
      justice.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations

omitted), cert. denied, 134 S.Ct. 1792 (U.S. 2014). Our review of a weight

claim is well-established:6

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
                       _______________________
(Footnote Continued)
5
  On May 11, 2015, the trial court ordered Montgomery to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Montgomery complied with the court’s directive, and filed an initial concise
statement on June 1, 2015.      After receiving an extension of time to
supplement the statement, Montgomery filed a supplemental concise
statement on July 9, 2015.
6
  We note Montgomery properly preserved her weight of the evidence
challenge by presenting an oral motion to the trial court prior to sentencing.
See Pa.R.Crim.P. 607(A)(1).



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      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.

      However, the exercise of discretion by the trial court in granting
      or denying a motion for a new trial based on a challenge to the
      weight of the evidence is not unfettered. The propriety of the
      exercise of discretion in such an instance may be assessed by
      the appellate process when it is apparent that there was an
      abuse of that discretion. This court summarized the limits of
      discretion as follows:

         The term ‘discretion’ imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion,
         within the framework of the law, and is not exercised for
         the purpose of giving effect to the will of the judge.
         Discretion must be exercised on the foundation of reason,
         as opposed to prejudice, personal motivations, caprice or
         arbitrary actions. Discretion is abused when the course
         pursued represents not merely an error of judgment, but
         where the judgment is manifestly unreasonable or where
         the law is not applied or where the record shows that the
         action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal

citations omitted).

      Montgomery asserts “the weight of the evidence was overwhelmingly

in favor of acquittal.”   Montgomery’s Brief at 12.       She emphasizes the

Commonwealth’s case rested upon the testimony of a single witness, the

complainant, “who testified to an incredible story that was uncorroborated




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by any physical evidence” and that her identification was “completely

refuted” by the defense. Id.

         Specifically, Montgomery argues the complainant had a reason to lie

about Montgomery’s involvement because she (Montgomery) was friends

with the complainant’s daughter, the complainant did not like her daughter’s

friends - whom she described as “females wanting to be males” - and

Montgomery was involved in an altercation with the complainant’s daughter

at school.     Id. at 14.     Further, Montgomery emphasizes the complainant

described Montgomery’s hair on the night of the burglary as “twisted, little

twisty    braids.”     Id.,   quoting    N.T.,   12/15/2014,   at   16.     However,

Montgomery’s grandmother testified that Montgomery’s hair was never in

twisted braids, but rather, had always looked as it did on the day of trial,

which she described as “a mess.” Id. at 14-15. Additionally, Montgomery

cites the testimony of Stanley, who admitted her involvement and named

two other females, not Montgomery or Harold Ellis, as her co-conspirators.

Montgomery also points out that Stanley testified she and Montgomery were

not friends, so Stanley had no reason to lie for her.          Lastly, Montgomery

claims the complainant’s testimony regarding the number of people involved

in the burglary was “inconsistent and contradictory.”7                    Id. at 15.
____________________________________________


7
  Montgomery refers to the complainant’s testimony that, as she approached
her home the night of the incident, she saw “a figure in [her] window.” N.T.,
12/15/2014, at 9. However, she never identified which of the four culprits
that was. Id. at 21. Further, Montgomery asserts the complainant testified
(Footnote Continued Next Page)


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Accordingly, she argues “[t]he evidence in this matter, the testimony of

[one] self-contradictory … witness, cannot support the verdict in the face of

conflicting evidence.” Id. at 16.

      However, the trial court, which sat as fact-finder, concluded “the

verdict does not shock the conscience.” Trial Court Opinion, 9/9/2015, at 4.

The court explained:

      The complainant identified [Montgomery] immediately after the
      incident as one of the four persons she observed in her
      residence.    Complainant was certain of that identification
      because she knew [Montgomery], who was a friend of the
      complainant’s daughter. This Court, sitting as fact-finder was
      free to believe her testimony, and frankly the prior relationship
      between [Montgomery] and the complainant’s daughter was not
      only conceded but admitted.

             Moreover, the fact that the guilty verdict herein was based
      solely on the testimony provided by the complainant does not
      render the verdict against the weight of the evidence. It is well-
      established that the uncorroborated testimony of a single person
      is sufficient to support a conviction. E.g. Commonwealth v.
      Trippett, 932 A.2d 188 (Pa. Super. 2007) (if believed by the
      factfinder, uncorroborated testimony of a victim is sufficient to
      sustain a conviction); Commonwealth v. Lamb, 455 A.2d 678,
      686 (Pa. Super. 1983) (“It is clear that the uncorroborated
      testimony of a co-conspirator, if believed, is sufficient to support
      a conviction in       a criminal conspiracy prosecution.”);
      Commonwealth v. Budd, 140 A.2d 346 (Pa. Super. 1958)
      (testimony of drug-addict witness was sufficient to sustain
      conviction even absent corroboration).

                       _______________________
(Footnote Continued)

on direct that she saw only three people in her home, but later, on cross-
examination stated there were four people. See Montgomery’s Brief at 16.
Our review of the record, however, reveals that the complainant consistently
maintained there were four people involved in the burglary. See N.T.,
12/15/2014, at 9-10.



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             In addition, this Court did not find credible the testimony
      given by Raydine Stanley, who admitted her role in the incident
      and testified that [Montgomery] was not a participant. (N.T.
      12/15/14, 31).       Ms. Stanley was previously convicted and
      sentenced when she testified and thus, had nothing to lose by
      testifying in favor of [Montgomery]. Her credibility was also
      undermined by her inability to identify the third person who
      allegedly participated in the burglary. (N.T. 12/15/14, 35).

            Finally, while the defense did present testimony
      questioning the description given by the complainant and good
      character evidence, this Court discounted the testimony because
      of the complainant’s certitude in her identification and the fact
      that the complainant got a good look at [Montgomery] the night
      of the incident.

Trial Court Opinion, 9/9/2015, at 4-5.

      Our review of the notes of testimony from Montgomery’s trial reveals

no abuse of discretion on the part of the trial court. The court determined

the complainant’s testimony was credible, as was its prerogative. The fact

that Stanley refuted the complainant’s identification of Montgomery was

immaterial once the court determined Stanley’s testimony was not credible.

Furthermore, as the Commonwealth notes in its brief, the testimony

regarding Montgomery’s hair at the time of the burglary was provided by

Montgomery’s grandmother, who “was obviously biased.” Commonwealth’s

Brief at 7. The facts of this case turn solely on the credibility determinations

of the fact-finder. Under these circumstances, and bound by our standard of

review, we cannot say the court abused its discretion in finding the

complainant credible, and Montgomery’s evidence incredible. See Widmer,

supra. Accordingly, no relief is warranted.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2016




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