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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
JABBAR ODELL JAMES,                        :            No. 1223 WDA 2014
                                           :
                          Appellant        :


          Appeal from the Judgment of Sentence, February 27, 2014,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0011806-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED FEBRUARY 03, 2016

        Jabbar Odell James appeals from the judgment of sentence entered on

February 27, 2014, following his conviction of theft by unlawful taking.1

        The trial court provided the following facts:

                     On August 8, 2012, Juana Saunders hosted a
              cookout in her backyard at 216 Amanda Avenue in
              Mount Oliver Borough, Allegheny County. Saunders
              invited approximately thirty people to the party,
              including Appellant. Saunders and Appellant had
              been married for three years as of that date, but
              were separated and no longer living together in
              August of 2012. During the party, Saunders locked
              her bedroom door because she had approximately
              three thousand dollars for her son’s college tuition,
              bills, and cookout incidentals in her nightstand.
              Saunders was the only person with a key to her
              bedroom, which she used a few times during the
              party to retrieve money for ice and other items.


1
    18 Pa.C.S.A. § 3921(a).
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                 The    cookout    ended    at    approximately
          11:00 P.M. Appellant remained at Saunders’s house,
          along with Saunders and her six children. Saunders
          unlocked her bedroom door, checked on the money
          in her nightstand, and let Appellant into her bedroom
          to spend the night while she went downstairs to
          sleep.      Shortly thereafter Saunders returned
          upstairs, and she and Appellant began to argue. The
          argument progressed from her bedroom down to the
          first floor. The argument ended at approximately
          5:30 A.M. when Appellant went back upstairs and
          Saunders fell asleep on the couch.

                 Saunders woke up at 7:30 A.M. and noticed
          that Appellant was no longer in her home. She
          immediately checked on the money in her nightstand
          and found that it was missing. Saunders called
          Appellant inquiring about the missing money, to
          which Appellant responded, “It’s not so funny now, is
          it?” When Saunders stated that she would give
          Appellant thirty minutes to return the money before
          calling the police, he did not respond. Saunders
          subsequently called the police to report the theft.

                 Appellant was arrested and charged as noted
          hereinabove. The trial was postponed several times.
          Prior to one of Appellant’s rescheduled trial dates, he
          attempted to contact Saunders’s current paramour,
          Lakesha Harris, to resolve the case outside of the
          court system.      Appellant sent Harris a Facebook
          message indicating that he wanted the case to be
          over and he would compromise about taking the
          money.      Harris and Appellant conversed through
          their Facebook accounts. At the conclusion of one of
          the conversations Appellant stated, “I was wrong,
          but we both done things to each other.” Appellant
          then called Harris at Saunders’s home and told her,
          “Listen, I’m trying to work something out. I want
          this shit to be over. I’ll give her the money. I’ll give
          her half now and half before she go in the
          courtroom.” There was no indication at trial that
          Appellant ever returned any of the money to
          Saunders.



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Trial court opinion, 3/27/15 at 4-6 (footnote and citations omitted).

      Following a non-jury trial, appellant was convicted of theft by unlawful

taking on November 4, 2013.       On November 21, 2013, appellant filed a

motion to vacate the verdict on the grounds that defense counsel was not

provided with the opportunity to present a closing argument. The trial court

granted the motion and on January 2, 2014, found appellant guilty following

closing arguments from both defense counsel and the Commonwealth.

Appellant was sentenced to two years’ probation and ordered to pay $3,000

in restitution by the trial court on February 27, 2014.

      On March 7, 2014, appellant filed post-sentence motions which were

denied by the trial court on July 10, 2014. Appellant filed a notice of appeal

on July 30, 2014. On August 27, 2014, the trial court ordered appellant to

produce a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Appellant complied with the trial court’s order, and the

trial court has issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue on appeal:

            Whether the trial court abused its discretion in not
            granting     [appellant’s]   Post-Sentence     Motion
            requesting a new trial when the verdict of guilty was
            contrary to the weight of the evidence?

Appellant’s brief at 4.

      Our standard of review for determining whether a verdict is compatible

with the weight of the evidence is well settled:




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                 An appellate court’s standard of review when
          presented with a weight of the evidence claim is
          distinct from the standard of review applied by the
          trial court:

                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.
                Commonwealth v. Brown, 648 A.2d
                1177, 1189 (Pa. 1994). 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.       Commonwealth v.
                Farquharson, 354 A.2d 545 (Pa. 1976).
                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. Widmer, 744 A.2d 745, 753
          (Pa. 2000).

          This does not mean that the exercise of discretion by
          the trial court in granting or denying the motion for a
          new trial based on a challenge to the weight of the
          evidence is unfettered. In describing the limits of a
          trial court’s discretion, we have explained:

                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


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                  reason, as opposed to prejudice,
                  personal motivations, caprice or arbitrary
                  actions. Discretion is abused where 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.

             Widmer, 744 A.2d at 753 (citation omitted).

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in

orginal.)

      A fact-finder is free to believe all, part, or none of the evidence

presented.    Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa.Super.

2015) (citations omitted). This court cannot assume the task of assessing

the credibility of the witnesses or evidence presented at trial, as that task is

within the exclusive purview of the fact-finder.          Commonwealth v.

Hankerson, 118 A.3d 415, 420 (Pa.Super. 2015) (citations omitted).

      Appellant’s weight of the evidence claim is grounded in the theory that

the testimony presented by the Commonwealth from Saunders and Harris

was “clearly unreliable, fantastic, and inconsistent, both internally and with

other, more credible evidence.”    (Appellant’s brief at 10.)   The trial court,

functioning as the fact-finder in this case, made the following determination

of credibility:

             The Trial Court clearly found the Commonwealth
             witnesses credible, and that the combination of
             direct and circumstantial evidence presented during
             the trial established Appellant’s guilt beyond a


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            reasonable doubt. The Trial Court properly denied
            the motion for new trial as the verdict was not
            against the weight of the evidence.

Trial court opinion, 3/27/15 at 7-8 (citations omitted).

      As noted by the Hankerson court, the fact-finder, and only the

fact-finder, may determine credibility.       An appellate court cannot, on a

weight of the evidence review, replace the fact-finder’s determination of

credibility with its own determination. See Commonwealth v. Blackham,

909 A.2d 315, 320 (Pa.Super. 2006), appeal denied, 919 A.2d 954 (Pa.

2007) (“It is not for this Court to overturn the credibility determinations of

the fact-finder”) (citations omitted).    Therefore, we are bound by the trial

court’s credibility determination.       We find that based on its credibility

determination at trial, the trial court’s denial of appellant’s post-sentence

motion was not an abuse of discretion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/3/2016




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