J-A08001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STEPHEN R. RANDALL

                            Appellant                  No. 473 EDA 2016


            Appeal from the Judgment of Sentence February 3, 2016
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004208-2012


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

MEMORANDUM BY PANELLA, J.                               FILED JUNE 29, 2017

        The Philadelphia Police Department charged Appellant, Stephen R.

Randall, with assorted crimes arising from an attempted carjacking of

Monica Kelly and Earl Stanton. The primary factual issue at Randall’s bench

trial was Kelly and Stanton’s identification of Randall as one of the three

males who accosted them. Despite significant evidence of suggestive taint

by police procedures, the trial court found Kelly and Stanton’s in-court

identification of Randall credible, and therefore found him guilty on all

charges.




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      On appeal, Randall contends that the trial court erred in failing to

grant him a new trial as the weight of the evidence at trial was against its

verdict.

      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 lower court’s verdict if it is so
      contrary to the evidence as to shock one’s sense of justice.
      Moreover, 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 claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal

citations omitted).

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotes and citations omitted).

      A review of the trial transcript reveals the following testimony. Stanton

testified that at approximately 8:00 p.m. on March 18, 2012, he was a

passenger in a vehicle driven by Kelly. At the intersection of 15th Street and

70th Avenue, three       armed men approached the           vehicle. One       man

approached Stanton on the passenger side of the vehicle; the other two

menaced Kelly through the driver’s side window.

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      Neither Stanton or Kelly recognized any of the males. One of the

males directed Kelly to disembark from the vehicle. However, another car

approached the intersection and its headlights distracted the assailants,

allowing Kelly to quickly drive away from the intersection. The incident

lasted less than a minute.

      Once safely away from the scene of the crime, Stanton called 911. He

told the dispatcher that the assailants were “three black males … I think one

… guy had white sneakers [and] I think a blue sweat suit jacket on [and] I

think blue jeans.” He could not provide a description of the other two

assailants to the dispatcher.

      The information Kelly provided to the dispatcher was, if anything, even

sparser. She informed the dispatcher that she could not describe the

assailants’ clothing except that one of them had a hoodie on.

      When police arrived to interview Stanton, he provided the following

description:

      Black male, 160 pounds approximately, brown skin, mustache,
      early 20s. He had a hoodie. His clothes were not as dark as the
      other males. He was closer to the vehicle. His clothes were not
      dark, but not bright that would stand out. … [T]hey all had
      hoodies and hats on.

He could not describe the hats worn by the assailants, because the hoodies

covered them.

      Police drove Kelly and Stanton around the neighborhood in an effort to

locate their assailants. This effort was unsuccessful, and Kelly and Stanton


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were driven to the police station. At the police station, officers received a

report of a gunshot victim, Randall, at a local hospital claiming that he had

been shot while being robbed at the intersection of 15th Street and 70th

Avenue. Randall informed hospital personnel that he had driven himself to

the hospital after being shot during a robbery.

      Police quickly surmised that the two incidents were related. Kelly and

Stanton were informed that the gunshot victim at the hospital was suspected

to be one of their assailants, and they were driven to the hospital to make

an identification. Both Stanton and Kelly positively identified Randall as one

of their assailants.

      Over a year later, after Randall had been charged, a line-up

identification was held. Six men were in the lineup; Stanton immediately

identified Randall.

      Randall testified in his own defense. He stated that he lived at the

intersection of 15th Street and 70th Avenue. He was sitting in his car texting

when an assailant approached his passenger side window and demanded

that he “give it up.” Randall drove away, but suffered a gunshot wound to

his arm as the assailant fired at him. When Stanton and Kelly were brought

to the hospital to identify him, his hat was lying next to him on the bed.

      Randall contends that under these circumstances, Stanton’s and

Kelly’s identifications were unreliable. He highlights: (a) the short amount of

time the victims had to observe their assailants, (b) the sparse descriptions


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given by the victims to the police dispatcher, (c) the taint caused by the

police informing the victims that Randall was a suspect before they saw him,

and (d) the presence of his hat and boots in his hospital room when Stanton

and Kelly first identified him.

      In rejecting these arguments, the trial court provided the following

reasoning:

      [T]his [c]ourt submits that it correctly concluded that the verdict
      does not shock the conscience. The complainants identified
      [Randall] shortly after the incident occurred as one of the three
      persons involved in the incident. They identified [Randall]
      immediately upon seeing him and Stanton again identified him at
      a lineup that occurred months after the incident happened. Both
      complainants were absolutely certain in the reliability of their
      identifications.

      Support for the reliability of the identifications is found in the
      fact that both complainants placed defendant on the driver’s side
      of the car and did not identify any other person shown to them
      the night of the incident. They were also consistent in their
      testimony with respect to many of the other details of the crime.
      In addition, [Randall] turned away from both complainants when
      they were asked to identify him.

      In addition, this [c]ourt did not find [Randall’s] testimony
      credible. According to [Randall,] despite being shot, he did not
      call police and instead drove himself to a hospital using a route
      that took longer than necessary. In this [c]ourt’s opinion, a
      person that had been shot during a robbery would not have
      acted as defendant did that evening. Instead, such a victim
      would have done what the complainants herein did and
      immediately contact[ed] the police.

      Finally, while the police should not have advised the
      complainants that a possible suspect was at the hospital before
      transporting them there, this [c]ourt did not find that the police’s
      actions so tainted the complainants’ identifications such that the
      verdict shocks the conscience because the complainants: 1.)
      were certain in identifying [Randall]; 2.) were consistent in their

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      recall of the incident; and 3.) identified [Randall] shortly after
      the incident occurred. Moreover, [Randall’s] testimony about his
      actions the night of the incident was preposterous.

Trial Court Opinion, 5/12/16, at 10-11 (citation omitted).

      After reviewing the certified record, we cannot conclude that the

reasoning quoted above constitutes an abuse of the trial court’s discretion

on this issue. The trial court acknowledges the weaknesses in the case

presented by the Commonwealth, but provides cogent reasons for finding

Stanton’s and Kelly’s identification of Randall credible. As such, Randall’s

sole issue on appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2017




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