J-S78028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

MICHAEL T. DURDEN

                            Appellant                     No. 58 MDA 2014


           Appeal from the Judgment of Sentence December 16, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001702-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                             FILED JANUARY 21, 2015

        Appellant Michael Durden appeals from the judgment of sentence

entered by the York County Court of Common Pleas following his jury trial

convictions for robbery,1 person not to possess a firearm,2 and firearms not

to be carried without a license.3 We affirm.

        The trial court found the following facts.4

           On the night of October 26, 2012, the Dollar General in the
           North York Shopping Plaza was robbed at gunpoint by a
____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    18 Pa.C.S. § 6105(a)(1).
3
    18 Pa.C.S. § 6106(a)(1).
4
  The trial court found the facts before a copy of the transcript was made
available. It based the facts upon its notes. The citations to the record have
been supplied by this Court.
J-S78028-14


       black male. Two employees, Christie Clark and Terrance
       Generate, were working at the Dollar General that night
       around 8:30 p.m. [N.T., 11/13-14/2013, at 68-69.] Ms.
       Clark explained that not many customers were in the store
       at that hour because the store closed at 9 p.m. [Id., at
       69.] Both Ms. Clark and Mr. Generate testified that one
       customer caught [their] attention as he entered the store
       because he was wearing sunglasses when it was
       completely dark outside. [Id., at 70, 103-04].

       When the man wearing the sunglasses was the only one
       left in the store, he approached Mr. Generate and showed
       him a gun in his waistband. [N.T., 11/13-14/2013, at 75-
       76, 104-05.] He and Mr. Generate then headed to the
       front of the store, and the perpetrator made contact with
       Ms. Clark. [Id., at 71, 75-76, 107.] The perpetrator then
       took both employees to the back of the store, and he had
       Ms. Clark tie up Mr. Generate with a shoelace. [Id. at 71-
       72, 75-76, 107.] The man then put Mr. Generate in the
       bathroom and took Ms. Clark back to the register and safe
       at the front of the store. [Id., at 72, 75-76, 108.] The
       man told Mr. Generate to stay in the bathroom or things
       would not be good for either one of the employees. [Id.,
       at 75-76, 108.] Both employees took this as a threat.
       [Id., at 76, 108.] At the front of the store, Ms. Clark
       emptied the register and the safe, and she gave the
       money to the armed robber. [Id., at 76]. After getting
       the money, the man tied up Ms. Clark in the back
       bathroom with Mr. Generate, and he told them to stay
       there for five minutes.      [Id., 76-77, 108.] The two
       employees complied with this request, and when they
       exited the bathroom, the armed robber was gone. [Id.,
       77, 108-09.]

       On December 22, 2012, the manager of the Dollar General
       recognized a similar man entering the store. [N.T., 11/13-
       14/2013, at 113-15.] The manager had reviewed the
       security footage multiple times. [Id., at 113-15.] The
       manager approached Mr. Generate, who happened to be
       working that night as well, and asked him if the man who
       just entered was the same man who robbed the store in
       October. [Id., at 114.] This man also wore sunglasses
       into the store when it was completely dark outside, and he
       had the same skin tone as the man who robbed the store.
       [Id., at 113-16.]      Once Mr. Generate informed the

                                 -2-
J-S78028-14


          manager that he was very positive the man was the armed
          robber, the manager got the man's license plate, and Mr.
          Generate contacted the police. [Id., at 117.]

          Detective Haller, the case investigator, traced the license
          plate to a residence near the Dollar General. [N.T., 11/13-
          14/2013, at 124, 132-34.] The vehicle was registered to
          Paula Butler, who is [Appellant’s] girlfriend. The residence
          also belonged to Paula Butler. [Id., at 134.] Mr. Haller
          went to the address and made contact with a person on
          the second floor. [Id.] After shown a still shot of the
          security footage, that person identified [Appellant] as one
          of the two men who entered the store on December 22,
          2012. [Id.] Mr. Haller then contacted Ms. Clark and put
          together a photo lineup for her to review. [Id., at 85,
          135.] On January 8, 2013, she identified [Appellant] in
          that lineup as the man who robbed the store in October.
          [Id., at 86, 135.]

          When Detective Haller finally made contact with
          [Appellant], Mr. Haller asked him why he was wearing
          sunglasses in the store when it was completely dark
          outside. [N.T., 11/13-14/2013, at 137.]       [Appellant]
          explained that he had problems with his eyes.        [Id.]
          When talking with [Appellant], Mr. Haller noticed
          [Appellant’s] mouth and how he spoke. [Id., at 137-38.]
          [Appellant’s] mouth, teeth and speech matched Ms. Clark’s
          observations during the robbery. [Id., at 137-38.] Ms.
          Clark had told Detective Haller that the armed robber’s
          teeth were very distinctive because one of his teeth was
          chipped. [Id., at 137-38.5] After executing a search
          warrant on the residence of Paula Butler, Detective Haller
          found gloves that were very similar to those used in the
          robbery. [Id., at 139.] No other evidence of the crime
          was found at the residence. [Id., at 141.] Detective
          Haller then filed charges against [Appellant]. [Id., at
          142.]


____________________________________________


5
   Detective Haller testified that “[Appellant] actually has – it’s not a cracked
tooth, but the way he holds his mouth, the incisor is pretty much shown and
it looks like a cracked tooth.” N.T., 11/13/2014, at 137-38.



                                           -3-
J-S78028-14


        At the preliminary hearing in March of 2013, Ms. Clark
        testified that she was not 100% certain that [Appellant]
        was the person who robbed the Dollar General. [N.T.,
        11/13-14/2013, at 87.] She testified that she was fairly
        certain that the man she identified in the photo lineup was
        the armed robber.      [Id.] Ms. Clark testified that she
        needed to see the teeth to be more confident. [Id.]
        Detective Haller obtained a search warrant to obtain
        [Appellant’s] DNA and photos of his mouth/teeth. [Id., at
        143.] Ms. Clark then explained that she was shown what
        Detective Haller described as the suspect’s teeth. [Id., at
        88.] The photo only depicted [Appellant’s] teeth, and Ms.
        Clark was shown multiple pictures. [Id., at 143.] Ms.
        Clark informed Mr. Haller that the mouth/teeth in the
        picture was the same mouth of the man who robbed the
        Dollar General. [Id., at 88, 143.] Ms. Clark further
        testified that she was positive it was the same mouth.
        [Id., at 88-89.] She had focused on the armed robber’s
        mouth because he was wearing sunglasses and her focus
        was on his mouth. [Id., at 87.]

        Paula Butler, [Appellant’s] girlfriend, also testified during
        trial. [N.T., 11/13-14/2013, at 163.] She explained that
        [Appellant] had been with her all night on October 26,
        2012, and he could not have robbed the Dollar General.
        [Id., at 163-65.] She testified that she had previously
        pled guilty to a retail theft charge. [Id., at 163.] She
        testified that she and [Appellant] had gone shopping that
        night and did not return home until around 9:10 p.m.
        [Id., at 164-65, 167.] She told the Jury that they went to
        Ross (in East York), 5 Below, and Dicks Sporting Goods.
        [Id., at 165.] Detective Haller testified that Ms. Butler told
        him they had gone to Wal-Mart in the west York area that
        night. [Id., at 182.]

Opinion in Support of Order Pursuant to Rule 1925(a) of the Rules of

Appellate Procedure, 3/27/2014, at 2-4.

     On November 14, 2013, a jury convicted Appellant of robbery, person

not to possess a firearm, and firearms not to be carried without a license.

On December 16, 2013, the court sentenced Appellant to an aggregate term

                                    -4-
J-S78028-14



of 11 to 22 years’ imprisonment.     Appellant filed post-sentence motions,

which the court denied on December 23, 2013.        On December 31, 2013,

Appellant filed a timely notice of appeal. Both Appellant and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant raises the following issues on appeal:

         [1.] Was the evidence presented at Appellant’s trial
         sufficient to convict him of robbery and related charges
         when he was never sufficiently identified at trial by the
         victims in his case?

         [2.] Was the jury’s verdict against the weight of the
         evidence submitted by the Commonwealth in Appellant’s
         case?

Appellant’s Brief at 3.

      We apply the following standard when reviewing a sufficiency of the

evidence claim: “[W]hether viewing all the evidence admitted at trial in the

light most favorable to the verdict winner, there is sufficient evidence to

enable the fact-finder to find every element of the crime beyond a

reasonable doubt.”        Commonwealth v. Lehman, 820 A.2d 766, 772

(Pa.Super.2003), affirmed, 582 Pa. 200, 870 A.2d 818 (2005) (quoting

Commonwealth v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we

apply this standard, “we may not weigh the evidence and substitute our

judgment for the fact-finder.” Id.

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.”       Id.   Moreover, “[a]ny

doubts regarding a defendant’s guilt may be resolved by the fact-finder


                                     -5-
J-S78028-14



unless the evidence is so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined circumstances.”            Id.

“The Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.”

      In applying the above test, we must evaluate the entire record and we

must consider all evidence actually received. DiStefano, 782 A.2d at 582.

Further, “the trier of fact while passing upon the credibility of witnesses and

the weight of the evidence produced, is free to believe all, part or none of

the evidence.” Id.

      Regarding evidence of identification, this Court recently reiterated:

         [E]vidence of identification need not be positive and
         certain to sustain a conviction. Although common items of
         clothing and general physical characteristics are usually
         insufficient to support a conviction, such evidence can be
         used as other circumstances to establish the identity of a
         perpetrator. Out-of-court identifications are relevant to our
         review of sufficiency of the evidence claims, particularly
         when they are given without hesitation shortly after the
         crime while memories were fresh. Given additional
         evidentiary    circumstances,    any    indefiniteness   and
         uncertainty in the identification testimony goes to its
         weight.

Commonwealth v. Valentine, 101 A.3d 801, 806 (Pa.Super.2014)

(quoting Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super.2011)).

      Whether a verdict is against the weight of the evidence is “addressed

to the discretion of the trial court.” Commonwealth v. Clay, 64 A.3d 1049,

1054-55 (citing Commonwealth v. Widmer, 744 A.2d 745, 751–52

                                     -6-
J-S78028-14



(2000)). “A new trial should not be granted because of a mere conflict in

the testimony or because the judge on the same facts would have arrived at

a different conclusion.   Rather, ‘the role of the trial judge is to determine

that notwithstanding all the facts, certain facts are so clearly of greater

weight that to ignore them or to give them equal weight with all the facts is

to deny justice.’” Id., at 1055 (quoting Widmer, 744 A.2d at 752). Courts

should award “a new trial . . . when 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.” Id.

(quoting Commonwealth v. Brown, 648 A.2d 1077, 1189 (Pa.1994)).

      Further, “[a]ppellate 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.”     Clay, 64 A.3d at 1055 (quoting

Widmer, 744 A.2d at 753). “Because the trial judge 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.” Id. (quoting Widmer, 744 A.2d at 753).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Michael E.

Bortner, we conclude Appellant’s issues merit no relief. The 1925(a) Opinion

comprehensively    discusses   and   properly   disposes   of   the   questions

presented. See 1925(a) Opinion, pp. 4-8 (finding (1) identification evidence

                                     -7-
J-S78028-14



presented was sufficient to identify Appellant as armed robber where: (a)

victim identified Appellant at photographic lineup, (b) although victim was

unable to identify Appellant with 100% certainty at preliminary hearing

without observing his teeth and mouth, she positively identified photographs

of Appellant’s mouth as that of assailant, (c) second victim identified

Appellant from video surveillance as robber, and (d) jury compared

surveillance footage of Appellant to surveillance footage of robber;6 and (2)

verdict was not against weight of evidence where jury found Ms. Clark, Mr.

Generate, and Detective Haller credible and their testimony provided enough

evidence to find Appellant guilty beyond a reasonable doubt and noting jury

was not required to believe testimony of Appellant’s girlfriend). Accordingly,

we affirm on the basis of the trial court’s opinion.

       Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2015



____________________________________________


6
  In addition, the jury had an opportunity to compare the two surveillance
videos to Appellant, who was present at trial.



                                           -8-
                                                                                Circulated 01/05/2015 01:42 PM



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                                                                        2DI~ liAR      27 A!1fQ: 34

    IN THE COURT OF COMMON PLEAS OF YORK COUN'fii~k~!iyl!JVAlNIA
                        CRIMINAL DIVISION

COMMONWEALTH

        v.                                                 NO. CP-67-CR-1702-2013

MICHAEL DURDEN
         Defendant!Appellant
COUNSEL OF RECORD:

                Jeff Rigby, Esquire                        Seamus D. Dubbs, Esquire Jr,
                Counsel for the Commonwealth               Counsel for Defendant


     OPINION IN SUPPORT OF ORDER PURSUANT TO RULE 1925(a) OF THE
                   RULES OF APPELLATE PROCEDURE
        The Court received a Notice of Appeal, filed on January 7, 2014, that the Defendant appeals to the

Superior Court of Pennsylvania this Court's Order denying the Defendant's post-sentence motion on

December 23, 2013. The Court has reviewed the record, and the Defendant's Statement of Matters

Complained of on Appeal, docketed on February 25,2014, The Court now issues this Opinion in support

of its Order, dated December 23,2013.

L       Procedural History

        On November 14,2013, this Court held ajury trial for the Defendant in this case, On that same

date, the Jury found the Defendant guilty of the following crimes: Robbery under 18 Pa C.SA §

3701(a)(J)(ii); Person not to Possess a Firearmunder 18 Pa. eSA § 6105(aX1); and Firearms not to be

Carried Without a License under 18 Pa, C,S.A. § 6106(a)(1). This Court sentenced the Defendant on

December 16, 2013, to an aggregate term of 11-22 years in a state correctional institution. This Court

denied the Defendant's post-sentence motions generally on December 23,2013.
                                                                                         Circulated 01/05/2015 01:42 PM




              The Defendant now challenges two issues on appeal. First, the Defendant argues that the

    Commonwealth presented insufficient evidence for the Jury to return a verdict of guilt beyond a reasonable

    doubt. Second, the Defendant argues that the Jury's verdict went against the weight of the evidence.

    II.      ~

             The oiurt avers the following relevant facts that it has taken from the testimony presented at the

    jury trial held on November 14, 2013.' On the night of October 26, 2012, the Dollar General in the North

    York Shopping Plaza was robbed at gunpoint by a black male. Two employees, Christie Clark and

    Terrance Generate, were working at the Dollar General that night around 8:30 p.m. Ms. Clark explained

    that not many customers were in the store at that hour because the store closed at 9 p.m. Both Ms. Clark

    and Mr. Generate testified that one customer caught there attention as he entered the store because he was

    wearing sunglasses when it was completely dark outside.

             When the man wearing the sunglasses was the only one left in the store, he approached Mr.

    Generate and showed him a gun in his waistband. He and Mr. Generate then headed to the front of the

    store, and the perpetrator made contact with Ms. Clark. The perpetrator then took both employees to the

    back of the store, and he had Ms. Clark tie up Mr. Generate with a shoelace. The man then put Mr.

    Generate in the bathroom and took Ms. Clark back to the register and safe at the front of the store. The

    man told Mr. Generate to stay in the bathroom or things would not be good for either one of the
I
    employees. Both employees took this as a threat. At the front of the store, Ms. Clark emptied the register

    and the safe, and she gave the money to the armed robber. After getting the money, the man tied up Ms,

    Clark in the back bathroom with Mr. Generate, and he told them to stay there for five minutes. The two


    , The notes of testimony were not yet made available to the Court for purposes of this appeal. The Court relies
    on its own notes taken during the testimony throughout trial.
                                                            2
                                                                                Circulated 01/05/2015 01:42 PM




employees complied with this request, and when they exited the bathroom, the armed robber was gone.

         On December 22, 20 12, the manager of the Dollar General recognized a similar man entering the

store. The manager had reviewed the security footage multiple times. The manager approached Mr.

Generate, who happened to be working that night as well, and asked him if the man who just entered was

the same man who robbed the store in October. This man also wore sunglasses into the store when it was

completely dark outside, and he had the same skin tone as the man who robbed the store. Once Mr.

Generate informed the manager that he was very positive the man was the armed robber, the manager got

the man's license plate, and Mr. Generate contacted the police.

        Detective Haller, the case investigator, traced the license plate to a residence near the Dollar

General. The vehicle was registered to PaulaButler, who is the Defendant's girlfriend. The residence also

belonged to Paula Butler. Mr. Haller went to the address and made contact with a person on the second

floor. After shown a still shot of the security footage, that person identified the Defendant as one of the

two men who entered the store on December 22, 2012. Mr. Haller then contacted Ms. Clark and put

together a photo lineup for her to review. On January 8,2013, she identified the Defendant in that lineup

as the man who robbed the store in October.

        When Detective Haller finally made contact with the Defendant, Mr. Haller asked him why he was

wearing sunglasses in the store when it was completely dark outside. The Defendaot explained iliat he had

problems with his eyes. When talking with the Defendant, Mr. Hallernoticed the Defendant's mouth and

how he spoke. The Defendant's mouth, teeth and speech matched Ms. Clark's observations during the

robbery. Ms. Clark had told Detective Haller that the armed robber's teeth were very distinctive because

one of his teeth was chipped. After executing a search warrant on the residence of Paula Butler, Detective

HaUer found gloves that were very similar to those used in the robbery. No other evidence of the crime
                                                     3
                                                                                    Circulated 01/05/2015 01:42 PM




 was found at the residence. Detective Haller then filed charges against the Defendant.

         At the preliminary hearing in March of2013, Ms. Clark testified that she was not 100% certain

 that the Defendant was the perSOn who robbed the Dollar General. She testified that she was fairly certain

that the man she identified in the photo lineup was the armed robber. Ms. Clark testified that she needed

to see the teeth to be more confident. Detective Haller obtained a search warrant to obtain the Defendant's

DNA and photos of his mouth/teeth. Ms. Clark then explained that she was shown what Detective Haller

described as the suspect's teeth. The photo only depicted the Defendant's teeth, and Ms. Clark was shown

mUltiple pictures. Ms. Clark informed Mr. Haller that the mouth/teeth in the picture was the same mouth

of the man who robbed the Dollar General. Ms. Clark further testified that she was positive it was the

same mouth. She had focused on the anned robber's mouth because he was wearing sunglasses and her

focus was on his mouth.

         Paula Butler, the Defendant's girlfriend, also testified during trial. She explained that the

Defendant had been with her all night on October 26, 2012, and he could not have robbed the Dollar

General. She testified that she had previously pled guilty to a retail theft charge. She testified that she and

the Defendant had gone shopping that night and did not return home until around 9: 10 p.m. She told the

Jury that they went to Ross (in East York), 5 Below, and Dicks Sporting Goods. Detective Haller testified

that Ms. ButIertold him they had gone to Wal-Mart in the west YOrk area that night.



III.    Matters Complained of on Appeal

        A.       Sufficiency of the Evidence

        The Defendant first argues that the evidence presented during trial is not sufficient for a jury to

return a verdict of guilty for robbery and the gun related offenses. The Defendant contends that the
                                                       4
                                                                                   Circulated 01/05/2015 01:42 PM




 evidence presented at mal lacked any identification that linked him to the crime committed and charged.

 We respectfully disagree with the Defendant's interpretation of the testimony and evidence, and we

 conclude that the evidence is sufficient to establish each crime charged beyond a reasonable doubt.

         Where the challenge is to sufficiency of evidence, the evidence must be reviewed "in the light

most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be

drawn from the evidence."        Commonwealth      l'.   Widmer, 744 A.2d 745, 751 (Pa. 2000).            See

ComllU)rtWealth l'. Hutchinson, 947 A.2d 800, 805 (Pa. Super. Ct. 2008). For the conviction to be upheld,

the evidence must be sufficient to allow the fact-fmder to find every element of the crime beyond a

reasonable doubt. Id      In proving the crime, the Commonwealth may rely solely on circumstantial

evidence, and the fact-finder is permitted to believe all, part, or none ofthe evidence. Id at 806. Any

doubts abont the defendant's guilt are to be resolved by ilie fact-finder unless the evidence was so weak

and inconclusive that no probability offact could be drawn from the evidence. Commonwealth v. Habay,

732, 735 (Pa. Super. Ct. 2007). The credibility,    Of   lack iliereof, of the witnesses is not an appropriate

argument for why the verdict was against the sufficiency of the evidence since "credibility determinations

are within the sole province of the jury." Martin l'. Evans, 711 A.2d 458, 463 (pa. 1998).

        As mentioned previously, the Defendant contends that the Commonwealth's case presented during

trial lacks any evidence identifYing the Defendant as the perpetrator of the robbery. In other words, the

Defendant does not challenge that a robbery at gunpoint in fact occurred, but the Defendant does challenge

the Commonwealth's position~and the Jury's verdict-that the Defendant is the onewho committed the

robbery in question. The question for this Court to consider is whether sufficient evidence exists to

identifY the Defendant as the perpetrator of the robbery. This Court concludes that sufficient evidence

exists to identifY and link the Defendant to the commission of the robbery at the Dollar General on October
                                                     5
                                                                                  Circulated 01/05/2015 01:42 PM




 26,2012.

         Ms. Clark identified the Defendant in a photo lineup, and Detective Haller reaffmned this positive

identification. At the preliminary hearing, Ms. Clark could not identifY the Defendant in the courtroom

with 100% accuracy because she needed to see his mouth and teeth. Ms. Clark testified that her focus on

.the night ofthe robbery was on the armed robber's mouth and teeth because his sunglasses and hat covered

everything else. Ms. Clark and Mr. Generate explained that the armed robber had a chipped tooth, which

made his mouth memorable to them. After the preliminary hearing, Detective Haller showed Ms. Clark a

picture of the suspect's mouth and teeth. When she viewed these photos, she informed Detective Haller

that she was positive that mouth matched the armed robber's mouth. The mouth and teeth in the picture

belonged to the Defundant.

         Mr. Generate, the male victim, also identified the Defendant as the armed robber. Mr. Generate.

saw the perpetrator on the night of the robbery, and he identified the Defendant to his manager when the

Defendant entered the Dollar General a second time on December 22, 2012. In the eyes of Detective

Haller, this served as a positive identification for purposes of his investigation.

        The Jury was also able to compare the surveillance footage from the night of the robbery to the

surveillance footage taken on December 22, 2012, when the Defendant entered the Dollar General with

another man. The Jury could compare the known individual on December 22 with the unknown armed

robber. The two individuals had the same skin tone, body build, both wore a hat, and both wore

sunglasses when it was completely dark outside.

        The Court finds this evidence ofidentification sufficient for a Jury to identifY the Defendant as the

armed robber on October 26,2012. The Commonweaith is entitled to all reasonable inferences from the

evidence at this stage. See Widmer, supra. An in-court identification of the Defendant as the perpetrator
                                                      6
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of the crime is not an essential element for the Commonwealth to show at trial. The identity of the

Defendant as the perpetrator of the crime can be established by circumstantial evidence, as well as by

showing an independent basis for identification outside of court. See generally Commonwealth v. Fisher,

769 A.2d 1116 (Pa.2001). The Defendant does not challenge the lineup or photos of the Defendant's

mouthlteetb as being overly suggestive in this case, and in fact, the Defundant makes no challenge to the

out-of-conrt identifications at all. The similarities in the surveillance footage combined with Ms. Clark's

and Mr. Generate's identifications provide snfficient evidence for a jury to ideutiJY the Defundant as the

anned robber. We conclude that the Commonwealth presented sufficient evidence to identiJY the

Defendant., and as such, we further conclude that the evidence is sufficient to prove all thecbarges beyond

a reasonable doubt.


        B.       Weight of the Evidence

        The Defendant next argues that the jury's verdict goes against the weight of the evidence

presented during trial. We disagree and conclude that the Jury's verdictin this case does not go against the

weight of the evidence presented for any crime charged.

        "The weight of the evidence is exclusively for the finder offact who is free to believe ail, part, or

none of the evidence and to determine the credibility ofthe witnesses." Commonwealth v. Champney, 832

A.2d 403, 408 (Pa. 2003) (citing Commonwealth v. Johnson, 668 A.2d 97,101 (pa. 1995), cert. denied,

519 U.S. 827 (1996». "The trial court shonld grant a new trial only where the verdict is socontrarytothe

evidence as to shock one's sense of justice and not where the evidence is conflicting orwhere the trial

judge would have reached a different conclusion on the same facts." Lombardo v. DeLeon, 828 A.2d 372,

374 (Fa. Super. Ct. 2003) (citing Davis v. Mullen, 773 A.2d 764, 766 (Pa. 2001».

                                                     7
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             The Jury found as credible the testimony of Ms. Clark, Mr. Generate and Detective Haller. This

    testimony taken as a 'whole provides enough evidence to find the Defendant guilty beyond a reasonable

    doubt. Although the Defendant's girlfriend testified attrial, the Jury was free to believe all, part or none of

    her testimony. See Champney, supra. In this case, the Jury did not find the girlfriend's testimony credible,

    and mere conflicting evidence is not enough to sustain a challenge to the weight of the evidence. See

    Lombardo, supra. We find that the Jury's detenninations do not shock one's sense of justice, and we

    conclude that the Jury's verdict does not go against the weight of the evidence presented at trial.



    IV.     Conclusion

            Based upon the reasons stated above, this Court respectfully urges affinnance of the Jury's

    verdict and this Court's Order denying the Defendant's post-sentence motion.




                                                         BY THE COURT,




    DATED: March       ')',2014
                                                ~e/:ZA-'
                                                  ICHAELE. BORTNER, JUDGE




                                                           8
