J-S61021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. OLAHJUWAN DUANE BURTON Appellant No. 1879 WDA 2015

Appeal from the Judgment of Sentence October 1, 201 5 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003132-2015
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J.: FILED AUGUST 24, 2016 Olahjuwan Burton appeals from the judgment of sent ence entered in the Court of Common Pleas of Allegheny County on Oc tober 1, 2015, following his non-jury trial conviction for robbery (bodily injury of the victim), 1 theft by unlawful taking, 2 simple assault, 3 reckless endangerment, 4
harassment. 5
The trial court summarized the facts of this matte r as follows:

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1 18 Pa.C.S.A. § 3701(a)(1)(iv).

2 18 Pa.C.S.A. § 3921(a).

3 18 Pa.C.S.A. § 2701(a)(1).

4 18 Pa.C.S.A. § 2705.

5 18 Pa.C.S.A. § 2709(a)(1),(2),(3).J-S61021-16

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Ms. Knauer testified she had just completed her shi ft at work and had stopped at a Giant Eagle supermarket on Ja nuary 21, 2015 in Homestead, Pennsylvania at approximately 9: 00 p.m. After she completed shopping, Ms. Knauer waited at a bus stop near the Giant Eagle. She got on the bus and arriv ed in Duquesne, Pennsylvania at approximately 10:00 p.m. She began to walk to her residence. She was wearing a backpack and carrying her purse. She was also carrying a re usable tote that held the items she purchased from Giant Eagle. She was alone. She described the lighting as average. The re were streetlights operating but they were not close to t he area. She had walked less than a block when she was approache d by Burton who began grabbing at the strap of her purse . The purse, however, got stuck under the backpack and Bu rton was unable to pull it from Ms. Knauer’s shoulder. Duri ng the tussle, Ms. Knauer ended up on the ground. Burton continue d to forcefully attempt to take her purse. While Ms. Kn auer was on the ground, Burton punched her three times in the f ace. One punch landed on her mouth. The other two landed ne ar her right eye. The punches caused her tooth to break a nd she was bleeding. She continued to scream for help. Burto n then reached to the ground, picked something up and fled the scene. Later, Ms. Knauer learned that her wallet had falle n out of her purse. She believed that Burton picked it up as he fled the scene. She then went to a nearby fire station to r eport the attack and to seek help. Ms. Knauer saw Burton’s face during the attack. Sh e described Burton in detail to the police officers who investi gated the attack. She described the assailant as being young, medium skinned black male and being slightly shorter than 5”8 wit h a medium build. At the time of the attack, he was wearing g ray sweatpants, sneakers and a blue hoodie. He had a g oatee. Ms. Knauer identified Burton in a photo array provided by the police about one week after the incident. Ms. Knauer also identified Burton as her assailant at trial. Officer Thiem from the Duquesne Police Department t estified that he had observed the defendant in the area of t he attack approximately 30 minutes before the attack occurred . Burton was known to Officer Thiem from prior interactions. At the time, Burton was wearing gray sweatpants and a blue hoodi e. Trial Court Opinion, 4/19/2016, at 1-3 (citations o mitted).J-S61021-16

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Following trial, the court sentenced Burton to a t erm of incarceration of no less than four years to no more than eight years , followed by a two-year term of probation. On November 2, 2015, Burton fil ed post-sentence motions, which were denied. On appeal, Burton rais es one issue:
1. Did the trial court abuse its discretion by finding that a guilty verdict was not against the weight of the evidence when the unreliable testimony of the only eyewitness was so untrustworthy that basing a verdict on this evidenc e was manifestly unreasonable? Burton argues that the trial court abused its disc retion in finding Burton guilty based on the victim’s/eyewitness’ ide ntification of Burton as a perpetrator because the identification “was highly unreliable since her opportunity to witness the perpetrator was not good .” Appellant’s Brief, at 11-12. He further argues that her “tenuous identif ication” was the only piece of evidence tying Burton to the crime in ques tion. Id. This court, when reviewing a challenge to the weig ht of the evidence, must examine the record in order to determine if th e trial court abused its discretion. Commonwealth v. Rivera , 983 A.2d 1211, 1225 (Pa. 2009). The focus of the review is the trial court’s exerci se of discretion, and not whether the trial court’s verdict is in fact agains t the weight of the evidence. Commonwealth v. Rossetti , 863 A.2d 1185, 1191 (Pa. Super. 2004). Where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying ques tion of whether the verdict is against the weight of the evidence. Rather, app ellate review is limited to whether the trial court palpably abused its discret ion in ruling on the weightJ-S61021-16

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claim. Commonwealth v. Rabold , 920 A.2d 857, 860-61 (Pa. Super. 2007) (citations omitted). Discretion is an exercise of judgment, wisdom and s kill, an ability to reach a neutral decision within the boundaries dict ated by the law. Commonwealth v. Widmer , 744 A.2d 745 (Pa. 2000). Review of the trial court’s decision is extremely limited where the par ty challenges the weight of the evidence based on the credibility of trial t estimony. Rossetti , supra at 1191. This Court shall reject a weight of the e vidence claim, “unless the evidence is so unreliable and/or contradictory as t o make any verdict based thereupon pure conjunction.” Id

. When reviewing the decision of the trial court, th is Court cannot substitute its judgment for that of the fact-finder

. Commonwealth v. Small , 741 A.2d 666, 672 (Pa. 1999). A fact-finder is f ree to believe all, part, or none of the evidence. Commonwealth v. Jaroweski , 923 A.2d 425, 433 (Pa. Super. 2007). Awarding a new trial i s warranted if “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 righ t may be given another opportunity to prevail.” Commonwealth v. Clay , 64 A.3d 1049, 1055 (Pa. 2013). However, the reviewing court should not awa rd a new trial “because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion.” Widmer , supra at 751. The reliability of a challenged identification is to be judged under a test employing the totality of circumstances and the fac tors that are relevant toJ-S61021-16

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that determination. These factors include: the op portunity of the witness to view the criminal at the time of the crime, the wit ness’s degree of attention, the accuracy of his prior description of the crimin al, the level of certainty demonstrated at the confrontation, and the time bet ween the crime and the confrontation. Commonwealth v. Ransome , 402 A.2d 1379, 1381 (Pa. 1979). The trial court did not abuse its discretion in fi nding that the eyewitness’s testimony linked Burton to the charged crimes. It is clear from the record that the victim’s ability to observe the physical features of the assailant’s physique was good. The fact that it wa s dark at the corner where the assailant attacked the victim did not prevent t he victim from noting major characteristics of his appearance. The victi m gave a detailed identification despite the fact that the assailant possessed an averagelooking appearance. Although the event occurred in a short amount of time, the victim’s description of the assailant’s clothin g matched what he wore thirty minutes before he attacked the victim. The victim did not hesitate when she chose Burton’s picture out of eight pictur es from a photo array where all the individuals in the array were similar -looking. Prior to the trial and during the trial the witness’s identification w as consistent, convincing and clear. We discern no abuse of discretion by th e trial court in rejecting Burton’s weight of the evidence claim. Rabold , supra . Judgment of sentence affirmed.J-S61021-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/24/2016