J-S45012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : SAGE NATHANIEL LEE KENT : : Appellant : No. 2480 EDA 2016
Appeal from the Judgment of Sentence July 11, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0008036-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 06, 2017
Appellant, Sage Nathaniel Lee Kent, appeals from the judgment of
sentence entered in the Montgomery County Court of Common Pleas,
following his bench trial convictions of two counts each of robbery and
aggravated assault, and one count each of recklessly endangering another
person (“REAP”), firearms not to be carried without a license, and possessing
instruments of crime (“PIC”).1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them. ____________________________________________
1 18 Pa.C.S.A. §§ 3701(a)(1), 2702(a), 2705, 6106(a)(2), and 907(b), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court. J-S45012-17
Appellant raises the following issue for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION IN DETERMINING THAT APPELLANT’S CONVICTION WAS NOT CONTRARY TO THE WEIGHT OF THE EVIDENCE, WHERE IT WAS MANIFESTLY UNREASONABLE FOR THE TRIAL COURT TO BASE APPELLANT’S CONVICTION UPON CONTRADICTORY, SELF-SERVING TESTIMONY OF ONE IDENTIFICATION WITNESS?
(Appellant’s Brief at 5).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Gail A.
Weilheimer, we conclude Appellant’s issue on appeal merits no relief. The
trial court opinion comprehensively discusses and properly disposes of the
question presented. (See Trial Court Opinion, filed January 11, 2017, at 6-
13) (finding: Victim and Detective Leeds credibly explained reason for
Victim’s delayed identification of Appellant as shooter; Victim testified he did
not initially identify Appellant for fear of being labeled “snitch” in community
and alerting police to his involvement in drug activity; Victim explained he
eventually chose to identify Appellant as shooter because Victim feared for
his safety and safety of his family; Corporal Gergel also testified for
Commonwealth at trial; specifically, Corporal Gergel stated Victim’s initial
description of shooter was consistent with Victim’s later identification of
Appellant as shooter; additionally, Danielle Hawkins’ description of men
fleeing crime scene was consistent with Victim’s initial description of shooter
and subsequent identification of Appellant as shooter; further, Victim’s
-2- J-S45012-17
identification of Appellant in photo array, recognition of Appellant’s accent,
and recollection of Appellant’s gold teeth, lent credibility to Victim’s
implication of Appellant as shooter; in light of this evidence, court
determined Victim’s identification of Appellant as shooter was highly
credible; in contrast, court found Appellant’s testimony about incriminating
text messages highly incredible; as finder of fact, court was free to
disbelieve Appellant’s explanation; under these circumstances, Appellant’s
conviction was not against weight of evidence, and court properly denied
Appellant’s post-sentence motion challenge to weight of evidence). The
record supports the trial court’s reasoning, and we see no reason to disturb
its decision to deny relief on Appellant’s challenge to the weight of the
evidence. See Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d
403, 408 (2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d
816 (2004) (stating where trial court has ruled on weight claim, appellate
court’s review is limited to whether trial court palpably abused its discretion
in ruling on weight claim). Accordingly, we affirm on the basis of the trial
court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/6/2017
-3- Circulated 08/17/2017 03:49 PM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CRIMINAL DIVISION
0,) COMMONWEALTH OF PENNSYLVANIA Common Pleas Court No.: CR-8036-2015 I@ v. ""~,, Superior Court No.: ~ . SAGE KENT 2480 EDA 2016 ..... ,,. N ~ ~""' OPINION ·..J WEILHEIMER, J. January ) \";-2017
Appellant, Sage Kent (Defendant in the underlying matter), has appealed his conviction after he
was found guilty by the undersigned beyond a reasonable doubt. Appellant argues the trial court abused
its discretion in denying him either a new trial or a finding of not guilty. Specifically,Appellant alleged
his guilty verdict was against the weight of the evidence, as minor victim, J.M. ( ')
- ("Victim"), failed to identify the Appellant immediately after the incident. For the reasons t1'!): follow, -.... -"· a n the trial court was within its discretion in finding Appellant's guilty verdict was not against thl'iweigh~f z: ""'CJ S;? C1 ::~ S ~;:;:i:;:; evidence and its subsequent denial of a new trial should be affirmed. ~:;-I i:-=i;; 0
-0 . c,r-1'2 :JI: 0 ·- FACTUAL HISTORY N c ::o •• -- -"'! - ~ {J)
The relevant facts of this case, as found by the trial court, are as follows: On October'S, 2015,
around 9:00 P.M. in Norristown, Pennsylvania, Appellant and another person followed Victim as he was
walking home down Jacoby Street after selling marijuana to a friend. See Trial Ct. Tr. at 35-38, 45, 51,
April 20, 2016. Shortly after Victim noticed he was being followed, Appellant said to Victim, "Run your
pockets," indicating to Victim to empty his pockets. Id. at 35, 38-39. Victim turned around, recognized
Appellant's face and bottom gold teeth, saw Appellant pull out a gun from his waistband, and began to
run toward Arch Street. See id. at 34-35, 38-39, 40:6-10, 41:2-4, 42:2-13, 45:21-25. See also id. at 107
(Appellant admitted he had his gold teeth at time of the incident.) Appellant then shot Victim in the back
while he was running away. See id. at 38, 44. Victim made his way back to 819 Green Street, where his
girlfriend's family lived, and laid down in the street upon realizing he was, in fact, shot. Id. at 47. Corporal Eric Gergel arrived at the scene shortly thereafter, and spoke with Appellant. 1 See id. at 14, 16-
17, 57. At that time, Appellant was not initially asked for an identification of any persons, but Appellant
offered that he was shot and gave a limited description of Appellant and the other person. See id. at 17, ~ ~ ,, 20, 24:14-16. Specifically, Victim told Corporal Gergel the two men were young black males wearing
~.... dark clothing and that one of them had a fur hat on. See id. at 18:2-5. An ambulance was called, and '\. r,,J ~'1' Victim was transported to Penn Presbyterian Medical Center for treatment. Id. at 47-48. Victim
.....J underwent surgery and was released four days later, on October 8, 2015. Id. at 48-49.
On October 4, 2015, the day after the shooting, Victim gave his first statement to a Detective
Crawford and a Corporal Dumas while in the hospital, but did not identify Appellant as the person who
shot him at that time. Id. at 51, 57. Victim, however, indicated one person had a dark hoodie and the
other had a tan hoodie. Id. at 59-60. At that time, Victim was afraid of being labeled a "snitch," which
according to Victim, as well as Detective Charles Leeds, is an undesirable label for Victim for a couple of
reasons. See id. at 52, 64-65 (Victim), 93 (Detective Leeds). Firstly, a snitch in Norristown is generally
someone who cannot be trusted. Id. at 52. Secondly, it would be bad for Victim's marijuana business.
Id. at 51, 65. Thirdly, in Norristown, it is a "bad thing" to speak with police. Id. at 65. And fourthly, the
label of snitch "has affected previous investigations and ongoing investigations." Id. at 93 (Detective
Leeds).
On October 15, 2015, Victim, then out of the hospital, gave his second statement, this time to
Detective Leeds, and made the first direct identification of Appellant as the shooter out of a sequential
photographic array ("photo array"). Id. at 53, 60-61, 73-74. Between the time of Victim's first and
second statement to the police, his fear of being labeled a snitch was transcended by the fear of Appellant
further endangering him or his family if he remained at large. Id. at 53-54. Victim picked Appellant out
of the carefully crafted photo array of eight (8) similar-looking individuals, including Appellant, which
I Patrol officer, Bryan Nawoschik, another first responder to the scene, eventually collected Victim's clothing, which contained a bullet hole and the Victim's blood on it. See id. at 26-31, 47. 2 i:ll O! was prepared by Detective Leeds. Id. at 74-75, 78. Before being presented the photo array, Victim was JU ~ given the instruction, inter alia, that even if he recognized anyone he was "to continue to look at every
e single photo in that photographic array." Id. at 77. i,.,o, ",. On October 20, 2015, Appellant was arrested as a suspect after Victim's first identification of q.....
....,. Appellant. Id. at 79: 10-12, 80: 13-16. Upon arrest, Appellant gave the police consent to search his cell "'""~- lf\,;J e phone. Id at 79: 19-21, 80:2-12. In reviewing Appellant's September 24, 2015, text message conversation it,,11
,-.J between him and his girlfriend, Satin Williams, which occurred approximately one week prior to the
shooting, the police found "text messages of substance" evincing Appellant's involvement in the
shooting. See id. at 81-84. The text messages regarded a "strizzy," and the purchase of a "new clip," and
"2 box [sicJ of bullets," which referred to a .40 caliber handgun and a magazine. Id. at 85-91. Appellant
gave highly incredible evidence regarding these text messages, such that he never texted his girlfriend
about bullets or a gun, that it was someone else that used his phone and texted another person that was
labeled as his girlfriend, though not actually her. Id. at 107.
Victim's testimony at trial that Appellant and the other person were wearing hoodies and one was
wearing a hat paralleled what he originally told Corporal Gergel right after the shooting, and was also
corroborated by the witness, Danielle Hawkins, who saw Appellant and the other person running down
Jacoby Street after the shooting. See id. at 54-55 (Victim), 68-70 (Danielle Hawkins). Victim also
testified he was familiar with Appellant because he met him previously through a friend, and encountered
him previously, "Over 20 times," including in the area of the shooting. Id. at 39: 14-25, 40:24-25, 41 :2-4,
51. Victim was familiar with the way in which Appellant spoke to him, as it was not a typical Norristown
accent. Id. at 40:14-23. Detective Leeds corroborated that Appellant spoke with almost a "southern
drawl," peculiar to Norristown. Id. at 92: 18-20. Detective Leeds' testimony regarding Appellant's
physical characteristics, including his bottom gold teeth likewise matched the descriptions given by both
Victim and witness, Danielle Hawkins. See id. at 18, 34, 40, (Victim), 70 (Danielle Hawkins), 92, 101
(Detective Leeds). 3 PROCEDURAL HISTORY
On November 5, 2015, a Criminal Complaint and Affidavit of Probable Cause was filed, which
included investigatory details regarding the shooting incident that occurred on October 3, 2015, and ITTP..l
'\, Victim's identification of Appellant out of a sequential photographic array. On January 19, 2016, the Bill ...~ ~ of Information was filed, charging Appellant with eight (8) different counts: two (2) counts of Aggravated
~Ii Assault, one (1) count of Recklessly Endangering Another Person, one (1) count of Firearms Not to be
-.J Carried Without a License, three (3) counts of Robbery, and one (1) count of Possession of a Firearm with
Intent to Employ Criminally. On April 6, 2016, a two (2) day jury trial was scheduled to commence on
April 20, 2016.
On April 20, 2016, Appellant was informed prior to the start of jury selection, inter alia, that a
jury would be chosen from members of the community thereby producing a jury of peers, a verdict
rendered by a jury must be unanimous, and Appellant would be permitted to participate in the selection of
the jury panel. (See Waiver of Jury Trial, April 20, 2016.) Thereafter, Appellant knowingly and
intelligently waived his right to a jury trial and elected to be tried by the undersigned. (Id.) On the same
day, Appellant was tried and found guilty beyond a reasonable doubt of Counts 1, 2, 3, 5, 6, and 7~
namely, both counts of Aggravated Assault, Reckless Endangerment of Another Person, two (2) counts of
Robbery (Robbery by Threats and Robbery by Fear of Bodily Injury), and Possession of a Firearm with
the Intent to Employ Criminally. (See Disposition - Deferred Sentence, April 20, 2016.) On the same
day, the trial court granted the Commonwealth's motion to nol pros the remaining counts against
Appellant. (Id.) On July 11, 2016, Appellant was sentenced on Count I -Aggravated Assault to undergo
imprisonment for not less than two-and-a-half (2 1h) years nor more than five (5) years in a State
Correctional Institution, commitment to date from October 20, 2015, and to pay costs of prosecution; and
was given no further penalty on the remaining counts of which he was found guilty. (See Disposition -
Corrected, July 11, 2016.) Appellant was also ordered to have no contact with Victim or his family. (Id.)
4 fl.I n On July 15, 2016, Appellant filed a Post-Sentence Motion, alleging his guilty conviction was m ~ against the weight of evidence', the two identifications made by Victim were insufficient to prove beyond
a reasonable doubt that Appellant was guilty of shooting Victim, and there was not any other e,.....,
·-,~ ,.,.
~,mi,. corroborating identification evidence. (See Appellant's Post-Sentence Motion.) On July 27, 2016, upon
consideration of said Post-Sentence Motion, the trial court denied relief, as the weight of evidence proved ~ ~ ., Appellant was guilty of shooting Victim beyond a reasonable doubt, including the supporting evidence l,o'I,
,....;i from the witness, Danielle Hawkins, and by Detective Leeds, as stated in the Factual History section,
supra. (See Trial Ct. Order, July 27, 2016.)
On August 2, 2016, Appellant filed his Notice of Appeal,pro se, despite being still represented by
counsel. (Notice of Appeal.) On October 6, 2016, the trial court ordered Appellant to file his Concise
Statement of Matters Complained of On Appeal ("Concise Statement") pursuant to Pennsylvania Rules of
Appellate Procedure (Pa. R.A.P.), Rule 1925(b). (Trial Ct. Order, October 6, 2016.) On October 20,
2016, Assistant Public Defender, Seth Grant, Esquire, asked the trial court for a thirty (30) day extension
to file Appellant's Concise Statement, which the trial court granted on October 24, 2016.
On November 23, 2016, Appellant's Concise Statement was filed, alleging the following:
1. THE VERDICT OF GUILT WAS AGAINST THE WEIGHT OF THE EVIDENCE INSOFAR AS IMMEDIATELY AFTER THE INCIDENT THE VICTIM FAILED TO IDENTIFY THE DEFENDANT. THE VICTIMS [SIC] SUBSEQUENT IDENTIFICATION OF THE DEFENDANT FROM A PHOTO ARRAY AND IN OPEN COURT WERE INSUFFICIENT TO ESTABLISH THE APPELLANT'S GUILT BEYOND A REASONABLE DOUBT TO THESE OFFENSES BECAUSE OF THE AFOREMENTIONED FAILURE TO IDENTIFICATION OF THE APPELLANT BY THE VICTIM.
(Concise Statement, November 23, 2016.)
2 Thus, preserving this issue for appeal. See Pa. R. Crim. P., Rule 607(A); see also Commonwealth v. Lofton, 57 A.3d 1270, (Pa. Super. 2012), appeal denied 69 A.3d 601, appeal after new sentencing hearing 131 A.3d 98, appeal denied 130 A.3d 1288. ("A weight-of-the-evidenceclaim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing.") 5 DISCUSSION
I. STANDARD OF REVIEW
In the instant matter, the Superior Court of Pennsylvania ("Superior Court") "may only reverse the II-'" <, [trial] court's verdict if it is so contrary to the evidence as to shock one's sense of justice." ...... •••A. Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012). Yet, "[a)ppellate review of a weight <, 1ri~ e claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is
""'11 against the weight of the evidence." Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citing
Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994).) Thus, "[a]ppellate review is limited to
whether the trial court palpably abused its discretion in ruling on the weight claim." Commonwealth v.
Hunzer, 868 A.2d 498 (Pa. Super. 2005), reargument denied, appeal denied 880 A.2d 1237 (Pa. 2005);
see also Commonwealth v. Cousar, 928 A.2d 1025 (Pa. _ : 2007), certiorari denied, 171 L.Ed.2d 235
(2008) ("relief will only be granted where the facts and inferences of record disclose a palpable abuse of
di sere ti on.")
More specifically, '[t]he test is not whether the [appellate] court would have decided the case in
the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial
imperative so that right may be given another opportunity to prevail." Commonwealth v. Taylor, 471
A.2d 1228, 1230 (Pa. Super. 1984) (citations omitted); see also Commonwealth v. Lofton, 57 A.3d 1270,
1273 (Pa. 2012) ("so contrary to the evidence as to shock one's sense of justice"), In analyzing the verdict
in this way, the Superior Court must consider the fact finder, whether it is a jury or a judge, "is free to
believe all, part, or none of the evidence and to determine the credibility of the witnesses." See Cousar,
928 A.2d at 1036. Therefore, "[t)he trial court's denial of a motion for a new trial based on a weight of
the evidence claim is the least assailable of its rulings." Id. (citing Commonwealth v. Keaton, 729 A.2d
529, 540-41 (Pa. 1999).)
6 II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING DEFENDANT'S POST-TRIAL MOTION FOR A NEW TRIAL BECAUSE DEFENDANT'S GUILTY VERDICT WAS NOT CONTRARY TO THE WEIGHT OF EVIDENCE.
"A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence,
•""· concedes that there is sufficient evidence to sustain the verdict." Widmer, 744 A.2d at 751 (citing -, r,~; Commonwealth v. Whiteman, 485 A.2d 459 (Pa. 1984).) The Appellant is therefore limited on appeal in
""'"" his argument that the guilty verdict in this matter was against the weight of evidence; the only issue on
appeal is "whether the verdict is so contrary to the evidence as to make the award of a new trial
imperative so that right may be given another opportunity to prevail." See Taylor, 471 A.2d at 1230.
"An allegation that the verdict is against the weight of the evidence is addressed to the discretion
of the trial court." Widmer, 744 A.2d 751-52 (citing Commonwealth v. Brown, 648 A.2d 1177 (Pa.
1994).) "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." Id. (citation omitted). This is true
because "[tJhe trier of fact, while passing upon the credibility of witnesses and the weight to be afforded
the evidence produced, is free to believe all, part or none of the evidence." Commonwealth v. Hunter,
768 A.2d 1136 (Pa. Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2001). Thus, a trial judge must
determine "notwithstanding all the facts, [whether] 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.
In Lofton, the Superior Court employed the above standard of review when it analyzed, inter alia,
the trial court's denial of the defendant's motion for a new trial, based upon his claim the verdict was "not
supported by the greater weight of the evidence." See Lofton, supra. Specifically, the Superior Court
analyzed discrepancies among the out-of-court statements and in-court testimony regarding identification
of the defendant, which were the gravamen of the defendant's weight-of-evidenceclaim. See id. at 1272.
The one witness in Lofton, Terrance Farley, was under arrest when he identified the defendant as the
shooter to police, and later at trial denied ever implicating the defendant. Id. Another witness, J.D.,
7 resided in a juvenile facility when he identified the defendant, and admitted his own presence at the scene
of the crime. Id. J.D., too, denied ever implicating the defendant at trial. Id. The Lofton court opined as
follows:
Assuming arguendo that [the] [a]ppellant preserved the issue, we agree with the Commonwealth that it does not entitle him to relief. The jury was clearly apprised of the discrepancies between the out-of-court statements and the in-court testimony both of J.D. and Mr. Farley. [The] [a]ppellant thoroughly explored the police tactics in securing the statements and attempted to highlight, via questioning of police, the possibility that the investigators did not actually transcribe verbatim the statements provided by the witnesses. The jury, nevertheless, was free to reject the in-court testimony of J .D. and Mr. Farley and accept the testimony of police that they accurately transcribed the statements that they were provided as well as the veracity of the out-of-court statements.
Moreover, while the additional witnesses could not conclusively identify [the appellant) or his co-defendants, their testimony was consistent with other information provided by J.D. [ ... ]
Lofton, 57 A.3d at 1275 (emphasis in original). Thus, the Superior Court ultimately determined the trial
court did not abuse its discretion in ruling that the guilty verdict was not against the weight of evidence.
Id.
In the instant matter, the Superior Court will employ the same standard of review as in Lofton, as
there is a similar weight-of-evidence issue raised by Appellant that depends on the progression of
Victim's out-of-court statements and in-court testimony. (See Appellant's Post-Sentence Motion, July 15,
2016; Concise Statement, November 23, 2016.) Specifically, Appellant takes issue with the fact that
Victim did not immediately identify Appellant as the perpetrator when first responders arrived at the
scene or when Victim was first questioned by police, but later identified Appellant from the photo array
and in open court. See id. However, Appellant, as well as Detective Leeds, credibly explained this
"inconsistency" of identification. See Trial Ct. Tr. at 51-52, 64-65 (Victim), 93 (Detective Leeds).
The inconsistency of identification in the instant matter was credibly explained, such that Victim
risked being labeled a "snitch" by identifying Appellant, which is "a bad thing" in Norristown, and as
such would also have hurt Victim's marijuana business in the area. See Trial Ct. Tr. at 51~52, 64-65 8 (Victim), 93 (Detective Leeds). Victim was also understandably fearful of explaining to police his
familiarity with the area of Norristown where the shooting occurred and Appellant's identity, as both
related to Victim's drug business. See id. at 60. Victim testified that he ultimately identified Appellant in r* "" the subsequent photo array because the risk of not identifying Appellant outweighed that of being labeled "'""' ii-" a "snitch," such that Appellant remained at-large and could be a danger to Victim or his family. See id. at -, !'\l ~,;'?I 53-54. Corporal Gergel testified he did not remember asking Victim directly for an identification of the °"'"' ,.,,;J perpetrator at the scene of the shooting, but rather asked other preliminary questions, e.g., what had
occurred, with the goal of controlling the scene and directing other officers. See id. at 17, 20, 23: 16-23,
24: 14-16. In fact, Victim nevertheless gave a limited description of Appellant when first questioned by
Corporal Gergel at the scene. Id. at 17. Thus, Victim's testimony, as well as Detective Leeds' and
Corporal Gergel's, credibly provided legitimate reasons for Victim's failure to affirmatively identify
Appellant initially to the police.
In Lofton, there were completely contradictory statements as to the defendant's identification that
undermined the witnesses' credibility; whereas, in the instant matter, the inconsistency as to Appellant's
identification was an omission, not a direct contradiction. See Lofton, 57 AJd at 1275. Victim's initial
omission of Appellant's identification does not undermine credibility to as great of an extent as did the
direct contradictions of the witnesses' identifications in Lofton. See id. at 1272 (witnesses reneged initial
identification of defendant.) Here, there were legitimate explanations for Victim's omission, and his later
identification of Appellant was not contradictory to his initial limited description to police. See Trial Ct.
Tr. at 17-18 (Corporal Gergel), 51-54, 64-65 (Victim). Specifically, while Victim did not originally
identify Appellant, he was not necessarily asked for a direct identification by Corporal Gergel, and
subsequently did not identify Appellant during his first questioning by police so as not to be labeled a
snitch. See id. at 17, 20, 23:16-23, 24:14-16, 51-52, 64-65. Further, here Victim was not under arrest or
incarcerated at the time he identified Appellant, unlike in Lofton, where both identifying witnesses were
being held and may have cooperated with law enforcement in order to get favorable treatment. See 9 Lofton, 57 A.3d at 1275. In fact, Victim risked being arrested by identifying Appellant because it
necessarily required him to reveal his marijuana business. See Trial Ct. Tr. at 60. The undersigned in the
instant matter was clearly apprised of the inconsistency of identification and much like the jury in Lofton
"""' ,, was ultimately free to make credibility determinations. See Lofton at 1275. Victim's explanation for the
inconsistency of identification in the present matter was credible, and the trial court was within its
discretion as the fact finder to believe such testimony. See, e.g., Cousar, Hunter, supra.
"'J As in Lofton, here there was also corroborating testimony regarding the limited description of the
perpetrator, which ultimately matched the actual perpetrator's identity. See Lofton, supra. Compare
Trial Ct. Tr. at 54-55 (Victim) and 68-70 (Danielle Hawkins) (Victim's and Daniel Hawkins' testimony is
not contradictory). Namely, Danielle Hawkins saw two men running down her street around the time and
in the area of the shooting, and stated they were both wearing hoodies and one, a hat. See Trial Ct. Tr. at
68-70. Victim initially told Corporal Gergel the two men were young black males wearing hoodies and
one had a fur hat. Id. at 18. Victim's direct identification of Appellant does not contradict these initial,
limited statements of identification. Additionally, Danielle Hawkins' and Victim's initial, limited
physical description of the men, namely the height, weight, and clothing descriptions, matched that of
Appellant. See id. at 54-55, 60 (Victim) 68-70 (Danielle Hawkins). Thus, the trial court is well within its
discretion to believe certain testimony and assign it a certain weight, as the jury did in Lofton.'
3 The Supreme Court of Pennsylvania "presumes judges of this Commonwealth are honorable, fair, and competent and, when confronted with recusal demand, have ability to determine whether they can rule impartially and without prejudice." Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004) (internal quotation and citation omitted). Specifically, "[w]here a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overturned on appeal but for an abuse of discretion." Commonwealth v. Tedford, 960 A.2d 1, 55 (Pa. 2008)). While the discretionary question of recusal is not an issue in the instant case, the undersigned was likewise "honorable, fair, and competent" to determine the discretionary questions of credibility and weight of evidence at a bench trial, especially given "a trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings." See Cousar, 928 A.2d at 1036 (emphasis added). 10 The additional evidence, including the sequential photographic array prepared by Detective Leeds
from which Victim identified Appellant; Victim's recognition of Appellant's particular accent; and
Victim's recollection of Appellant's bottom gold teeth, was compelling in its implication of Appellant as ;;ZI t..,, <, the shooter. The photo array was carefully crafted and presented to Victim, after which his second
-, ~· ~:i statement to police and his first direct identification of Appellant followed. See Trial Ct. Tr. at 53, 74-75.
m Detective Leeds created the eight (8)-person array by using a database of photos from offenders
•..J throughout the Commonwealth of Pennsylvania, specifically searching persons with similar physical
features, age, and race as that of Appellant. Id. at 74. The trial court noted the photo array's particular
reliability on the record, as follows:
THE COURT: [ ... ] [O]ne of the things I find most compelling in this case is Commonwealth Exhibit 6, which was the photo array. It was a particularly good photo array in that the individuals in each of the photographs looked very similar. And if this was a matter in which the [V]ictim [ ... ] didn't know the [Appellant] and didn't know him from before this incident, it would have been very easy to confuse the picture of [Appellant], which is indicated by a four at the bottom, with the picture that is indicated with a three at the bottom. They look incredibly similar. But that's not what he did. [ ... ]
[T]he fact that he picked out the [Appellant] from this photo array gives his testimony additional credibility.
Id. at 120. Prior to presenting this photo array to Victim, Detective Leeds read an instruction form to
Victim and had him sign it, which set forth the parameters and procedure of the photo array. Id. at 74.
The photo array was then handed upside-down to Victim, who was further instructed to look at each
photo, even if he saw someone he recognized, before making any identification. Id. at 76-77. Victim
chose Appellant's picture as the person who shot him. Id. at 77. Victim had recognized Appellant since
the day of the incident, in part, by his bottom gold teeth. Id. at 34, 40. Detective Leeds confirmed
Appellant had bottom gold teeth at the time of arrest, and Appellant admitted to having such at the time of
11 i:i~ ~ the shooting. See id. at 92:12-15, 101 (Detective Leeds), 107 (Appellant). Victim also testified he ::, recognized Appellant at the time of the incident by his voice, describing it as not deriving from the
Norristown area. Id. at 40: 14-23. Detective Leeds testified Appellant indeed spoke with an accent ~ ~ "- unfamiliar to Norristown that resembled a "southern drawl." Id. at 92: 18-20. Thus, the trial court was I..J> " within its discretion as the fact finder to give more weight to this additional identification evidence, and N ~, ultimately determine Appellant's guilty verdict was not against the weight of all the evidence.
Appellant's testimony, on the contrary, was highly incredible, specifically that regarding the cell
phone messages between him and his girlfriend, Satin Williams, which implicated Appellant as the
shooter. See id. at 107. The text messages referred to a "strizzy," that is, a .40 caliber handgun, and the
purchase of a "new clip" or magazine, and "2 box [sic] of bullets." Id. at 85-91. When asked about these
text messages on direct examination, Appellant gave the following testimony:
A: That was my phone, but that wasn't me texting and that wasn't Satin that was being texted. Satin's phone number is saved in my phone.
Q: So someone else took your phone and texted --
A: Somebody else --
Q: -- someone else about guns?
A I allowed someone to use my phone. They didn't have a phone.
Id. at 107: 10-20. The trial court was within its discretion to disbelieve Appellant's explanation for the
texts, to infer from this circumstantial evidence that Appellant had the handgun described in the texts
during the shooting of Victim on October 3, 2015, and ultimately to find Appellant's guilty conviction
was not against the weight of all the evidence.
Given there was ample testimony that credibly explained Victim's hesitation to initially identify
Appellant directly to police; matching descriptions given by Victim and the witness, Danielle Hawkins,
both in- and out-of-court; and strong corroborating evidence identifying Appellant as the shooter, the trial
court was within its discretion in finding that Appellant's guilty verdict was not against the weight of all 12 ti)
r1 the evidence. Victim testified he did not want to be labeled a snitch. Both Victim and Detective Leeds I~ testified that being labeled a snitch is undesirable in Norristown. Common sense tells one that the label of
~1, snitch typically has a negative connotation anywhere, much like the specific verbiage of elementary
',. school days: "tattletale". See Merriam Webster Dictionary (2017), available at https://www.merriam- ''"' ' "~' webster.com/dictionary/tattletale. -....~ r,,;,i r~ Victim's initial, limited description of Appellant to Corporal Gergel and eventual direct
"'..J identification of Appellant in a photo array are corroborated by Danielle Hawkins' description of the
clothing and approximate height and weight of the Appellant. Moreover, Victim's initial, limited
descriptions are not contradictory to the direct identification of Appellant, and they match Appellant's
actual identity, i.e., race, height, weight, gold bottom teeth, and accent.
Victim was credible because his testimony was logical, corroborated by Detective Leeds and
Danielle Hawkins, and included an admission of a crime, i.e., selling marijuana. Danielle Hawkins was
credible because she did not give more than what she remembered or witnessed, either initially to police
out-of-court or during her in-court testimony; she simply described clothing and physical characteristics.
See Trial Ct. Tr. at 68-70 (Danielle Hawkins testified that at the time she was questioned by police she
was not aware of the actual identities of the men or their relative ages). Detective Leeds and Corporal
Gergel were credible because each has experience in their respective fields, and their testimony was
logical and consistent throughout direct- and cross-examination. See, e.g., id. at 13 (Corporal Gergel's
qualifications), 71-72 (Detective Leeds' qualifications).
Finally, Victim ultimately made two good identifications of Appellant, once on October 15, 2015,
a couple weeks after the incident in the carefully crafted photo array and a second time in-court during the
April 20, 2016, bench trial. See id. at 39:2-10, 66, 74-75, 78. Therefore, the weight of evidence indicated
Appellant was guilty beyond a reasonable doubt, and the trial court did not abuse its discretion or deny
Appellant justice when it declined to hold him a new trial. Appellant is merely unsatisfied with the
outcome of the case. 13 CONCLUSION
Wherefore, the reasons stated above, the trial court's final decision was proper and should be
affirmed, BY THE COURT:
GAIL A. WEILHEIMER, J.
Copy mailed on January Ii , 2017 to: Superior Court Prothonotary Seth E. Grant, Esq. (PD's Office) Raymond Roberts, Esq. (DA's Office) Defendant, Sag~t, SCI-BrennerTwnshp., # MQ-2237
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