J-S13023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

RASHAUN LEATHERBERY

                             Appellant                 No. 572 EDA 2016


            Appeal from the Judgment of Sentence January 8, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013503-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED MARCH 10, 2017

        Rashaun Leatherbery appeals from the judgment of sentence, entered

in the Court of Common Pleas of Philadelphia County, after he was convicted

of aggravated assault,1 simple assault2 and conspiracy.3        After careful

review, we affirm.

        The trial court aptly summarizes the underlying facts of the case as

follows:

        Jimmie Grant, the victim in this matter, and Kuwsh Muhammad
        were friends, occasionally recording music together. On March
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(1).
2
    18 Pa.C.S. § 2701(a).
3
    18 Pa.C.S. § 903.
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        14, 2014, Muhammad picked Grant up to drive to a recording
        studio. On their way, Muhammad stopped at 60th and Master
        Streets in Philadelphia, exited the car, and entered a store while
        Grant remained in the passenger seat. Moments later, Grant
        saw Muhammad walking out of the store and two men, later
        identified as defendants Rashaun Leatherbery and Imir Glover,
        walking behind Muhammad. Grant, sensing trouble, stepped out
        of the passenger side of the car, at which time the three men
        approached Grant, with Leatherbery inquiring about another
        man, Mike Glover. After a brief dispute, Leatherbery punched
        Grant and continued to strike him. Suddenly other men joined
        in, and at least one slammed Grant to the ground. Grant was
        repeatedly punched and kicked, testifying that he fell in and out
        of consciousness. Security footage obtained from a nearby store
        showed a total of five men in the area around Grant for about
        three minutes.4

        At trial, Grant recalled that Muhammad pulled him off the
        ground, brought him home, then eventually to the hospital.
        Grant was released from the hospital two days later after
        suffering two broken ribs, losing multiple teeth, and receiving
        stitches in his head and mouth. He also testified that his phone
        and about $70 were taken from his pockets and never
        recovered.

Trial Court Opinion, 7/14/16, at 3 (citations to record omitted).          On October

30, 2014, Leatherbery, Glover and Muhammad were arrested and charged

with aggravated assault and simple assault as well as criminal conspiracy.

After a preliminary hearing, the three men were bound over for trial on all

charges.

        Leatherbery filed a pre-trial motion to suppress the victim’s out-of-

court    and   in-court    identifications     based   on   the   allegation   that   the

____________________________________________


4
  The video footage, however, did not provide an independent basis for
identifying any of the perpetrators other than Muhammad. N.T. Non-Jury
Trial, 10/26/15, at 46.



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identifications were suggestive and that there had been no reliable

identification made because the witness was tainted.             N.T. Suppression

Motion, 10/24/15, at 4-5.      The court held a hearing on the motion where

Detective Greg Holman was the sole witness.          Detective Holman testified

that the victim described his assailant as “being six-foot-one, 180 to 200

pounds, light complexion, Sunni beard, with short wavy hair.”             Id. at 12.

Four days after the assault, the victim was interviewed by Detective Holman.

Holman testified that the victim told him he knew one of his assailants by

the nickname, “Shaun T,” and that he was a relative of Mike Glover, but had

never personally met him prior to the incident. At that point, Holman looked

up information on Mike Glover that indicated he had been a co-defendant of

Leatherbery on several occasions. When the detective pulled up a photo of

Leatherbery, the victim immediately identified him as “Shaun T,” one of his

assailants.     The court found the detective’s testimony credible and denied

the motion.

      Leatherbery waived a jury trial. Trial took place on October 26, 2015,

before the Honorable J. Scott O’Keefe. The Commonwealth did not present

the victim’s out-of-court identification at trial. Leatherbery was convicted of

the above-stated offenses; his co-defendants were acquitted. On January 8,

2016, Leatherbery was sentenced to 2-3 years in prison, followed by 5 years

of probation. This timely appeal follows.

      On      appeal,   Leatherbery   raises   the   following   issues    for   our

consideration:

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      (1)      Was the evidence insufficient to convict [Leatherbery] of
               all the offenses because there was no evidence of showing
               beyond a reasonable doubt that [Leatherbery] was the
               perpetrator of the offense?

      (2)      Did the trial court err in denying the defense[’s] motion to
               suppress the identification of [Leatherbery] by the
               complainant because of [the] police[’s] unduly suggestive
               identification procedures at a photo display when the
               Commonwealth did not meet its burden of establishing by
               clear and convincing evidence . . . that the complainant’s
               trial testimony was reliably based on the complainant’s
               observation at the time of the crime?

Appellant’s Brief at 2.

      Leatherbery asserts that the complainant’s identification testimony is

insufficient to sustain his convictions where the attack occurred at night, the

complainant lost consciousness at some point during the attack, the victim

had never met Leatherbery before and was under the influence of drugs at

the time of the crime, there was no motive for Leatherbery’ s actions, and

there was no physical or circumstantial evidence linking Leatherbery to the

crime.

      The identity of a defendant must be proven beyond a reasonable

doubt, the same as any other essential element in a criminal prosecution.

Commonwealth v. Shelbert, 171 A.2d 574, 576 (Pa. Super. 1961).

However, a weak identification, together with other evidence in a case, may

be sufficient to convince a jury of the defendant’s guilt beyond a reasonable

doubt.   Id.    Evidence of identification need not be positive and certain to

sustain a conviction.     Commonwealth v. Woodbury, 477 A.2d 890, 893

(Pa. Super. 1984).         Moreover, any indefiniteness and uncertainty in


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identification testimony goes to the weight and credibility of his or her

testimony. Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007).

      Although the victim may never have personally met Leatherbery

before the assault, the victim knew Leatherbery was Mike Glover’s cousin

and knew of him by the nickname, “Shaun T.” Moreover, evidence showed

that the victim knew the entire incident was instigated by Mike Glover.

Following the attack, the victim gave the police Leatherbery’s nickname and

an accurate physical description of his assailant, including height, weight,

hair and facial hair.   Under such circumstances, we cannot find that the

identification was against the weight of the evidence.

      Leatherbery next contends that the trial court erred in failing to

suppress the victim’s in-court identification where the victim’s out-of-court

photo identification four days after the incident was unduly suggestive and

violated his due process rights.    Specifically, he claims that because the

victim’s in-court identification did not have any independent origin, the

identification was not convincingly established.

      “In reviewing the propriety of identification evidence, the central

inquiry is whether, under the totality of the circumstances, the identification

was reliable. Suggestiveness in the identification process is but one factor to

be considered in determining the admissibility of such evidence and will not

warrant exclusion absent other factors.” McElrath v. Commonwealth, 592

A.2d 740, 742 (Pa. Super. 1991), citing Commonwealth v. Sample, 468

A.2d 799, 801 (Pa. Super. 1983). The following factors are to be considered

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when     determining   the     admissibility   of   identification   evidence:         (1)

opportunity of witness to observe perpetrator at time of crime, (2) witness’s

degree    of   attention;    (3)   accuracy    of   witness’s   prior    description    of

perpetrator; (4) level of certainty witness demonstrates at confrontation;

and (5) time between crime and confrontation. Commonwealth v. Carter,

643 A.2d 61, 71 (Pa. 1994).

       At the suppression hearing, the defense relied upon Commonwealth

v. Fowler, 352 A.2d 17 (Pa. 1976), to argue that the identification

procedure used by Detective Holman was unfair, particularly in light of the

fact that the victim had never met Leatherbery before.                  In Fowler, our

Supreme Court found that the trial court erred in suppressing identification

evidence “that was the result of an impermissible suggestion arising from

pre-lineup displays of photographs of the [defendant] and the line-up itself.”

Id. at 18.     Specifically, the victim’s daughter, who was present when her

father’s assailants shot him at point-blank range in their house, told the

police what had happened at the scene of the crime and described one of the

assailants as being “of slender build, nineteen to twenty-one years old,

approximately six feet tall, clean shaven, with medium brown skin, wearing

a dark suit, white shirt, small dark tie, dark straw hat and sunglasses.” Id.

at 23.     During the following three months, the victim’s daughter was

repeatedly shown groups of photographs to determine whether she could

identify anyone that was in her father’s home at the time of the murder.

She was shown hundreds of photographs, generally in groups of ten to

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twenty.    She identified the defendant several times, “h[olding] his

photograph out” because although the defendant looked much older, he

resembled the man she had seen on the day in question. Id.      However, she

never positively identified any of the photographs as being the man who was

involved in the crime.

      The victim’s daughter was interviewed several more times over a

three-month period, during which time she had a chance encounter with the

defendant at a restaurant in New Jersey where she had gone with her

mother and husband.      The daughter heard the defendant say “that is the

wife and daughter, and she doesn’t recognize me.” Id. at 24. The daughter

wrote down the defendant’s license plate number; however, she said nothing

to her husband and mother about what she had heard in the restaurant until

they later arrived in New York where she called the police and gave them the

defendant’s license plate number.    Several weeks later, police showed the

daughter another group of photographs, one of which was of the defendant.

Again, the daughter failed to identify the defendant, stating that she could

not give a positive identification unless she saw him in person. The following

day, the police arrested the defendant and placed him in a line-up where the

daughter said the defendant “looked like the same person I had seen but I

would like to hear him speak.” Id.   All of the men in the line-up were asked

to speak; after which, she positively identified the defendant as her father’s

assailant. Id.




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      On appeal, the Court considered the totality of the circumstances

affecting the identification in the case, concluding that the process used was

unnecessarily suggestive and that the prosecution failed to establish by clear

and convincing evidence that the in-court identification had an “independent

origin” in the daughter’s observations at the time of the crime. Not only was

the suggestiveness a result of the repeated display of the defendant’s

photograph, but it was also suggestive because his photograph stood out as

a significantly different type of photo (full frontal view versus a mug shot).

Id. at 24-25. The Court concluded that each of these factors “increases the

danger, inherent in all photographic identification procedures, that the

identification process will lead to a misidentification.” Id. at 25.

      The facts of Fowler are clearly distinguishable from the instant case.

Here, the victim was able to view his assailants at the crime scene.

Although it was dark and he was ultimately knocked unconscious as a result

of the assault, the victim knew that the attack involved an issue involving

Mike Glover, the defendant’s cousin. The victim was able to give a rather

detailed description of his assailants and also knew the nickname of the

defendant. The police did not suggestively and repeatedly show the victim

pictures of possible suspects. Rather, at the moment the officer pulled up

Leatherbery’s photo, the victim positively identified him as “Shaun T.”

Under these circumstances, we do not find that Detective Holman’s

identification process was such that the “likelihood of [such] misidentification




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. . . violate[d the] defendant’s right to due process[.] Fowler, 352 A.2d at

25, citing Neil v. Biggers, 409 U.S. 188, 198 (1972).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2017




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