Com. v. Walker, S. ( 2019 )

J. S84045/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SAM WALKER, : No. 2052 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered March 9, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006309-2017
BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 11, 2019
Sam Walker appeals from the March 9, 2018 judgment of sentence
entered in the Court of Common Pleas of Philadelphia County after a jury
convicted him of second-degree murder, robbery, and conspiracy to commit
robbery.1 The trial court imposed the mandatory life sentence for the
murder conviction and imposed no further penalty on the robbery and
conspiracy convictions. We affirm.
The trial court set forth the following:
On May 14, 2017, around 2:00 p.m. or 3:00 p.m.,
Deborah Leatherberry and her boyfriend, the victim,
James Bolden,[Footnote 2] arrived at the home of
Leatherberry’s mother at 51st and Arch Streets in
Philadelphia to celebrate Mother’s Day. Shortly
thereafter, several of Leatherberry’s sisters and their
children arrived, including Leatherberry’s sister
1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), and 903.
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Starkeisha, and her boyfriend, [appellant]. A few
hours later, while Leatherberry, Bolden, [appellant],
and Leatherberry’s nephew were sitting on the
porch, Bolden took money from his pocket and asked
Leatherberry to go to the store and buy him beer.
Bolden had recently acquired several hundred dollars
after his father died. Leatherberry went to the store
on the next block, bought beer, and returned to her
mother’s house.
[Footnote 2] James Bolden was also
known by the name “Storm.”
A few hours later, Leatherberry, her nephew, her
sister Priscilla, Bolden and [appellant] were sitting on
the porch. While on the porch, [appellant] said
something to Bolden, and Bolden took offense,
asking [appellant]: “are you talking to me?” In
order to diffuse the situation and prevent an
altercation, Leatherberry suggested that they go
back inside her mother’s house. However, after
everyone went inside, [appellant] punched Bolden
while they were in the living room. In response,
Bolden attempted to punch [appellant] but missed,
and [appellant] again punched Bolden, causing him
to fall to the ground. Bolden moved underneath a
table in the living room, but [appellant] continued to
hit and stomp on him. Eventually, Leatherberry
threatened to call the police, but [appellant] stopped
beating Bolden. Leatherberry still called the police,
but [appellant] was gone before the police arrived at
the house.
Sometime after the police left, around 9:45 p.m.,
Leatherberry and Bolden walked to 52nd and Market
Streets so that they could take the Market-Frankford
Line (“the El”) to their home in Germantown. While
the couple was standing in front of a pillar waiting for
the El to arrive, [appellant] sprang out from behind
the pillar and punched Bolden in the head,
immediately causing Bolden and Leatherberry to fall
to the ground. Meanwhile, another man who was
with [appellant] approached the couple, now on the
ground, from the other side of the pillar and reached
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into Bolden’s pocket to take the money that Bolden
had recently acquired after his father’s death. As the
man stole Bolden’s money, [appellant] continued to
strike Bolden in the head. Then, [appellant] and the
other man, who had a hoodie pulled over his face,
ran away. While all of this occurred, Leatherberry
was attempting to help her boyfriend and screaming
for someone to call the police.
Shortly thereafter, Officers [Ashiq] Damani and
[Kevin] Tilghman were the first officers to arrive on
the scene. Leatherberry told the officers that
[appellant] and another man[,] whom she could not
recognize because of the hoodie obscuring his face,
attacked Bolden. Bolden was bleeding from his
mouth and face and had a difficult time standing. An
ambulance arrived and transported Bolden to
Lankenau Hospital. The next day, May 15, 2017,
Bolden was pronounced dead. The medical examiner
determined that Bolden’s cause of death was head
trauma.
Trial court opinion, 10/3/18 at 2-4 (record citations omitted).
The record reflects appellant filed a timely post-sentence motion which
the trial court denied. Appellant then filed a timely notice of appeal. The
trial court ordered appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Following the grant of an
extension of time, appellant timely complied. The trial court thereafter filed
its Rule 1925(a) opinion.
Appellant raises the following issue for our review: “Was the verdict
against the weight of the evidence, and did the trial court abuse its
discretion in so finding?” (Appellant’s brief at 2.)
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
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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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations
omitted; emphasis omitted).
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the . . . verdict if it is so contrary
to the evidence as to shock one’s sense of justice.
Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011).
Here, to bolster his weight challenge, appellant points out various
instances of what he deems as evidentiary “inconsistencies.” (Appellant’s
brief at 5-6.) For example, appellant contends that the verdict was against
the weight of the evidence because the poor quality of the surveillance
videotape from which a witness identified appellant rendered the
identification unreliable. (Id. at 8-9.) In so contending, appellant claims
that “[a]ll that can be determined from the testimony is that the height,
build, facial hair and type of clothing were consistent with [appellant],” but
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that [in no way, however, amounts to a reliable identification,
notwithstanding [the witness’s] firm belief.” (Id. at 9.)
Appellant further contends that a statement made by Ms. Leatherberry
was inconsistent with a statement made by the victim which “gives rise to
questions regarding Ms. Leatherberry’s motive to perhaps protect [her
ex-boyfriend] at [appellant’s] expense.” (Id. at 10-11.) Appellant further
attacks Ms. Leatherberry’s credibility by pointing out that she had been
drinking alcohol and smoking marijuana prior to the attack on the victim;
that portions of her testimony were inconsistent with the testimony of her
mother; and that Ms. Leatherberry contradicted herself. (Id. at 10-13.)
In so doing, appellant invites this court to assess witness credibility
and reweigh the evidence. “The jury, as fact-finder[, however,] had the
duty to determine the credibility of the testimony and evidence presented at
trial.” Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2016)
(citation omitted). Appellate courts cannot and do not substitute their
judgment for that of the fact-finder. See id. Here, a jury of appellant’s
peers weighed the evidence and assessed the credibility of the witnesses
and determined that the Commonwealth’s evidence proved beyond a
reasonable doubt that appellant committed second-degree murder, robbery,
and conspiracy to commit robbery. After carefully reviewing the record, we
conclude that the jury’s verdict was not so contrary to the evidence so as to
shock one’s sense of justice. Rather, our review of the record supports our
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conclusion that the trial court properly exercised its discretion in denying
appellant’s weight of the evidence claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/19
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