J-A30033-18

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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JOSEPH MARION,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 341 WDA 2018

Appeal from the Judgment of Sentence January 22, 2018

in the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0007232-2016

BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER,* J.

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 7, 2019

Joseph Marion (Appellant) appeals from the judgment of sentence 

entered January 22, 2018, after he was found guilty of robbery, theft by 

unlawful taking, and simple assault. We affirm. 

The Commonwealth charged Appellant with the above-referenced 

crimes following a robbery in the City of Pittsburgh on June 5, 2016. 

Appellant eventually proceeded to a non-jury trial. We begin with the trial 

court’s summary of the facts established by the Commonwealth at 

Appellant’s trial.

The Commonwealth presented the testimony of the victim, 

[] who testified that she was walking on Forbes Avenue in 

Pittsburgh when a man approached her from behind, grabbed 

her, ripped her purse from her shoulder, threw her to the ground 

and ran from the scene. As a result she sustained injuries to the 

left side of her face, her shoulder and knees. The victim’s purse 

was worth approximately $250.00 and contained a small amount 
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of cash and her cell phone. The victim testified that a passerby 

assisted her and the police were called. She described the 

attacker as wearing dark clothing and a blue bandanna wrapped 

around his head. On cross[-]examination the victim

acknowledged that she had been drinking and that the assault 

happened “very fast.” She also testified that after speaking to 

the police at the scene she was taken to where [Appellant] had 

been apprehended and she immediately identified him as the 

assailant.

The Commonwealth called Officer Josh Anderson of the 

City of Pittsburgh police who testified that he was on patrol and 

received a call of a robbery in the 1900 block of Forbes Avenue. 

He testified that he received a description of the suspect who 

was later located by other officers at the corner of Pride and Fifth 

Avenue, which was approximately five blocks away from the 

assault. Officer Anderson testified that when [Appellant] was 

taken into custody he matched the description of what the 

assailant was wearing “exactly.” Officer Anderson testified that 

the victim’s purse was located in the 1800 block of Forbes 

Avenue in a parking lot and the phone was located at the corner 

of Tustin and Gist Streets, approximately a half block from the 

assault. On cross[-]examination Officer Anderson testified that 

in his police report he noted the victim had “indications of 

alcohol,” but did not believe that she was incoherent or that any 

of the information she provided was inaccurate. 

The Commonwealth also called Officer James Aker who 

testified that he was on patrol when he received the call and 

description of the actor. He testified that as a result he was 

driving in the area between Fifth and Forbes Avenues and on the 

adjacent side streets and while stopped at a traffic light at the 

intersection of Fifth Avenue and Pride streets, approximately 10 

minutes after receiving the call, [Appellant], who matched the 

description of the actor, walked in front of his vehicle. He 

testified that [Appellant] was alone and there was no one else in 

the general area that matched the description of the actor. 

[Appellant] was taken into custody and the victim was brought 

to the location and she identified [Appellant] as her attacker. On 

cross[-]examination Officer Aker testified that they did not find 

any property of the victim on [Appellant] when he was arrested.
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Trial Court Opinion, 7/16/2018, at 2-3 (citations omitted). The 

Commonwealth rested after the foregoing testimony. Appellant did not 

testify nor did the defense present any witnesses. 

On October 23, 2017, Appellant was found guilty of the 

aforementioned crimes. On January 22, 2018, Appellant was sentenced to 

24 to 48 months’ incarceration followed by three years’ probation. On 

January 29, 2018, Appellant filed a post-sentence motion, which the trial 

court denied the next day. This timely-filed appeal followed.1 On appeal, 

Appellant challenges the sufficiency of the evidence supporting his 

convictions. Appellant’s Brief at 5. He also contends the trial court abused 

its discretion by denying his post-sentence motion challenging the weight of 

the evidence. Id. 

Appellant’s sufficiency and weight challenges rest upon similar 

arguments; so we shall address them together. The crux of Appellant’s 

arguments on both issues is that the victim’s identification of Appellant as 

the assailant who robbed her and her testimony as to the same is so 

unreliable such that the “identification falls patently below proof beyond a 

reasonable doubt” and therefore Appellant’s convictions “were shocking to 

the judicial conscience[.]” Id. at 9-10.

 

1 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant specifically points to the victim’s lack of “sufficient 

opportunity to observe her assailant because the incident lasted only a 

matter of seconds, occurred late at night, and there was no testimony that 

the street was illuminated.” Id. at 11. Appellant argues that because the

victim was only able to provide the police with a “general description” and 

because there was no corroborating evidence to show Appellant was 

“involved in the incident,” the evidence proffered by the Commonwealth at 

trial was insufficient to establish guilt. Id. at 11, 15-16 (citing 

Commonwealth v. Crews, 260 A.2d 771 (Pa. 1970) and Commonwealth 

v. Wiley, 432 A.2d 220 (Pa. Super. 1981)). In the alternative, based on 

the circumstances that existed at the time of the victim’s identification, as 

detailed supra, Appellant argues “the identification was highly circumspect” 

and thus the trial court’s finding of guilt was against the weight of the 

evidence. Id. at 18.

Our standard of review in challenges to the sufficiency of the evidence 

is to determine

whether, viewing all the evidence admitted at trial in the light 

most favorable to the [Commonwealth as the] verdict winner, 

there is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In applying 

[the above] test, we may not weigh the evidence and substitute 

our judgment for the fact-finder. In addition, we note that the 

facts and circumstances established by the Commonwealth need 

not preclude every possibility of innocence. Any doubts regarding 

a defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of 
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proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015) 

(citation omitted).

The trial court responded to Appellant’s sufficiency claim as follows.

[T]he victim credibly described her attacker as a black male 

wearing dark clothing and that he specifically had a blue 

bandana wrapped around his head. The description of the 

attacker was broadcast to the police and [Appellant] was found 

within minutes only five blocks from the attack and the clothes 

he was wearing matched the description of those worn by the 

attacker exactly. Shortly after [Appellant was] apprehended, the 

victim identified [Appellant] as the attacker. While there was 

evidence that the victim may have consumed alcohol, there was 

absolutely no evidence that she was intoxicated to the extent 

that she was unable to [perceive adequately] the events during 

the attack or subsequently identify [Appellant]. While it is 

acknowledged that the attacker approached the victim from 

behind and the assault took place very quickly, the evidence 

establishes that the victim had sufficient opportunity to observe 

her attacker and identify him as a black male along with his 

clothing and a blue bandana, which she specifically observed.

It is recognized that in a jury trial an instruction pursuant 

to Commonwealth v. Kloiber, 106 A.2d 820 [(Pa. 1954)]

should be given to jurors that they should receive evidence of 

eyewitness identification with caution where the witness is not in 

a position to clearly observe the assailant; the witness is not 

positive as to identity; positive statements made by the witness 

as to identity are weakened by qualification; or, by the failure to 

identify a defendant on one or more prior occasions. Although 

not applicable in this case, the Kloiber instruction identifies 

factors or other evidence that may be considered regarding the 

reliability of eyewitness testimony. In this case, although the 

opportunity to observe [Appellant] was brief, there is no 

evidence that the victim did not have sufficient opportunity or 

ability to perceive her assailant. There is no evidence she was 

unable to give any description of the attacker or that she was 

less than positive in identifying [Appellant] shortly after the 

attack. Although [Appellant] argues that the identification the 
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night of the attack was unduly suggestive, there is no specific 

evidence that the victim’s identification was made solely based 

on the circumstances surrounding the identification process. 

Finally, there is no evidence that her identification was weakened 

or qualified or that she ever failed to identify [Appellant]. In 

addition, the testimony of Officers Anderson and Aker 

established that [Appellant], who matched the description of the 

attacker, was located within blocks of the attack within minutes 

of the attack. Considering all of the evidence, and the reasonable 

inferences therefrom, it is clear that the Commonwealth 

established sufficient evidence to support the verdict.

Trial Court Opinion, 7/16/2018, at 4-5.

Reviewing the evidence in light most favorable to the verdict winner, 

we conclude the trial court’s findings and conclusions are supported by the 

record. See Commonwealth v. Minnis, 458 A.2d 231, 233 (Pa. Super. 

1983) (concluding there was sufficient evidence to sustain Minnis’s 

adjudication of delinquency when, inter alia, “the victim’s boyfriend [who 

witnessed the robbery], although he qualified his identification by reference 

to [Minnis’s] jacket, did not shy away from identifying appellant himself and 

not just his clothing).”

Additionally, we find Appellant’s reliance upon Crews and Wiley 

misplaced. As summarized by a prior panel of this Court in 

Commonwealth v. Atkins, in Crews, supra, 

identification of [Crews] was made by a witness on the basis of a 

gold colored sweater the witness observed [the assailant]

wearing at the time of the crime. The sweater was found in 

[Crew’s] home, but the witness could not positively testify that it 

was the same sweater, although she did indicate that the color 

appeared to be the same. Other witnesses also testified to 

[Crew’s] similar height and clothing, and further evidence placed 

[Crews] in proximity to the location of the crime and 
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substantiated his association with a co-defendant. The [Supreme 

C]ourt, in granting a motion in arrest of judgment, noted that:

(T)he Commonwealth’s sole identification evidence 

was based on similar height and coloration, plus the 

clothing. In light of the myriads of people who fit the 

height and coloration description, and in light of the 

commonness of a gold sweater . . . the evidence 

failed to point with sufficient certitude to Crews as 

the perpetrator of the crime. The jury was forced to 

[g]uess [whether it was Crews or another man who 

committed the crime]. Our system recoils at sending 

a man to prison for the rest of his life on a [g]uess.

Atkins, 335 A.2d 375, 377 (Pa. Super. 1975).

In Wiley, supra, this Court found that the evidence of Wiley’s 

identification was insufficient to support a finding of guilt beyond a 

reasonable doubt to sustain Wiley’s convictions for burglary and theft. 

Wiley, 432 A.2d at 220. In that case, the victim, Barbara Carino, was

working at a restaurant she owned, when she was informed that someone 

was in her apartment, which was located above the restaurant. Id. at 221. 

Carino asked Philip Craig to accompany her upstairs to investigate. Id. 

After entering the apartment and “[w]hile examining the scene, a black male 

of medium build ran through her kitchen, down the hall, down the stairway, 

and out the front door.” Id. She only saw him for a few seconds but 

“believed, however, that he was [] Butchy Deas, a black male whom she had 

employed in the past to clean her apartment, and who had access to it.” 

Id. However, Craig told police that it might have been Wiley. At trial, Craig 

first testified that he was “about 50 percent” sure that Wiley was the 
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individual he saw running out of the apartment. Id. at 222. Later, Craig

stated he was “70 percent’” sure. Id. This Court reversed Wiley’s 

conviction, concluding the identification of Wiley was insufficient based upon 

Craig’s uncertainty in his identification, Carino’s identification of another 

man, and that fact there was no additional corroborating evidence.

In this case, unlike in Crews and Wiley, the victim’s identification was 

unequivocal. She testified that despite the entire incident happening “very 

fast,” she was able to see Appellant as he robbed her of her belongings. She

provided a description to police and was able to identify Appellant, who was 

found in close proximity to where the robbery took place, shortly after the 

incident occurred. N.T., 10/23/2017, at 11-14, 23. Clearly, the evidence 

presented at Appellant’s non-jury trial supporting the identification of 

Appellant was much stronger than what was presented in Crews and Wiley. 

“As such, the present case is controlled by the more general rule that any 

uncertainty in an eyewitness’s identification of a defendant is a question of 

the weight of the evidence, not its sufficiency. We therefore conclude that 

[Appellant’s] argument that the evidence at trial was insufficient to sustain 

his convictions fails.” Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. 

Super. 2006).

Furthermore, we conclude the trial court did not abuse its discretion in 

determining the verdict was not against the weight of the evidence. Trial 

Court Opinion, 7/16/2018, at 6.
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Appellate 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. Because the trial judge has 

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. One of the least assailable reasons for granting or 

denying a new trial is the lower court’s conviction that the 

verdict was or was not against the weight of the evidence and 

that a new trial should be granted in the interest of justice.

In reviewing the propriety of identification evidence, the 

central inquiry is whether, under the totality of the 

circumstances, the identification was reliable....

As this Court has explained, the following factors are to be 

considered in determining the propriety of admitting 

identification evidence: the opportunity of the witness[ ] to view 

the perpetrator at the time of the crime, the witness’[s] degree 

of attention, the accuracy of [her] prior description of the 

perpetrator, the level of certainty demonstrated at the 

confrontation, and the time between the crime and 

confrontation.

Commonwealth v. Brown, 23 A.3d 544, 557–58 (Pa. Super. 2011) 

(citations and quotation marks omitted).

In light of the testimony provided at trial and considering the totality 

of the circumstances, we conclude that the trial court did not abuse its 

discretion in determining that the victim’s identification of Appellant was 

reliable. Despite the brief encounter, the victim saw Appellant as he 

wrestled for her purse, described him to police shortly after the incident 

occurred, and unequivocally identified Appellant as her assailant after 

Appellant was apprehended by police a short distance from the crime scene, 

matching the victim’s description “exactly.” N.T., 10/23/2017, at 11-14, 24. 
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The trial court found the victim’s testimony related to her identification of 

Appellant credible. Based on the foregoing, it was not an abuse of discretion 

for the trial court to hold that Appellant’s conviction for robbery and related 

crimes based on the victim’s identification was not so contrary to the 

evidence as to shock his sense of justice. See Commonwealth v. Lewis, 

911 A.2d 558, 566 (Pa. Super. 2006) (pointing out that in “criminal 

proceedings, the credibility of witnesses and weight of evidence are 

determinations that lie solely with the trier of fact, [which] is free to believe 

all, part, or none of the evidence.”) (citation and quotation marks omitted). 

Accordingly, after a thorough review of the record and briefs, we find 

Appellant has presented no issue on appeal which would convince us to 

disturb his judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2019
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