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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,1simple assault2and 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-ofcourt 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