Com. v. Muhammad, M. ( 2017 )

J-S93046-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MALIK MUHAMMAD
Appellant No. 724 EDA 2017
Appeal from the Judgment of Sentence dated March 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005336-2010
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED APRIL 13, 2017
Appellant, Malik Muhammad, appeals from the judgment of sentence
following a bench trial and convictions for first-degree murder, possession of
an instrument of crime, and multiple violations of the Uniform Firearms Act.1
Appellant challenges the sufficiency and weight of the evidence. We affirm.
We state the facts as set forth in the trial court’s opinion.
On October 2, 2008, just before midnight, Brian Duran,
who went by the nickname “Pacman,” went to the area of
34th and Wallace Streets after receiving a call from a
friend named Rasheed Harrod. Upon arrival at that
location, Duran saw Harrod exit Sam’s Deli Chinese store
and begin walking in his direction. Duran then saw
[Appellant], who had the hood of his sweatshirt drawn
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502(a), 907, 6106, and 6108.
J-S93046-16
tight around his face, come from inside the store, run up
to Harrod, and shoot him after which [Appellant] fled.
Harrod eventually died from his injuries. An autopsy of
his body revealed that he died [from] a single gunshot
wound to the back of his head. The manner of death was
deemed to be homicide.
Duran did not speak to police the night of the incident
or tell them what he had witnessed because he, himself,
was a criminal. Sometime after the incident, Duran was
arrested on federal charges and during a proffer session he
related that he witnessed [Appellant] shoot Harrod. Duran
thereafter gave Philadelphia Homicide detectives a
statement wherein he stated that he had witnessed the
murder of Harrod.
Subsequent thereto, both Duran and [Appellant]
encountered one another when they were being
transported to the Criminal Justice Center in Philadelphia
for [Appellant]’s preliminary hearing. [Appellant]
threatened to kill Duran and harm his family if Duran
continued to cooperate with authorities. During this
incident, two apparent associates of [Appellant] assaulted
Duran, which required that he receive medical treatment.
As a result of the incident, [Appellant]’s preliminary
hearing had to be postponed.
In 2009, Mr. Frank Herbert and [Appellant] were
incarcerated together. According to Herbert, he and
[Appellant] were standing with other inmates when
[Appellant] stated that he had been jailed because of a
homicide he committed that had been witnessed by a
couple of people after he exited a Chinese store.
[Appellant] stated that he had a hood pulled tight on his
face when he committed the crime and that he had to get
out of custody to take care of somebody. He further
stated that associates of his had approached family
members of a person nicknamed “Pacman” for the purpose
of having them convince Pacman not to testify against
him.
[Appellant] testified in his defense and denied having
shot Harrod. [Appellant] indicated that Duran accused him
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of committing the crime because [Appellant] refused to sell
drugs for Duran. He further stated that he confronted
Duran when they were incarcerated because he was angry
that Duran was falsely accusing him of the murder.
Finally, he stated that he had never seen Mr. Herbert
before Herbert testified.
Trial Ct. Op., 2/10/16, at 1-3. After a bench trial, the court found Appellant
guilty and he was sentenced to life imprisonment plus two-and-a-half to five
years’ incarceration. Appellant did not challenge the weight of the evidence
with the trial court. Appellant timely appealed, and timely filed a court-
ordered Pa.R.A.P. 1925(b) statement.2
Appellant raises the following issues:
Whether the evidence is insufficient for Appellant’s
Convictions stemming from the incidents of October 2,
2008, where the only evidence against him came from a
convicted felon who was testifying as part of a plea deal,
and only saw part of the shooter’s face, at night, while
looking through a rear view mirror, and another felon who
did not know Appellant?
Whether the weight of the evidence is against Appellant’s
Convictions stemming from the incidents of October 2,
2008, where the only tangible evidence produced at trial
came from two convicted felons, Bryan Durant and Frank
Herbert. Durant who testified under a favorable plea
agreement, stated he could only see part of the shooter’s
face from his rear view mirror as he drove away at night,
which was contradicted by his preliminary hearing
testimony. Additionally Herbert incredibly testified
____________________________________________
2
Due to an apparent breakdown in the trial court’s operations, Appellant’s
Rule 1925(b) statement for this docket number was improperly filed at cases
docketed at Nos. 7944, 7945, and 7946 of 2010. These cases also involve
Appellant but are completely unrelated to the instant case.
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J-S93046-16
[Appellant] confessed to the crime even though he was
never in the same cell block with him.
Appellant’s Brief at 5 (reordered to facilitate disposition).3
The standard of review for a challenge to the sufficiency of the
evidence follows:
When reviewing a sufficiency of the evidence claim, this
Court must review the evidence and all reasonable
inferences in the light most favorable to the
Commonwealth as the verdict winner, and we must
determine if the evidence, thus viewed, is sufficient to
enable the fact-finder to find every element of the offense
beyond a reasonable doubt.
Commonwealth v. Goins, 867 A.2d 526, 527 (Pa. Super. 2004). While a
challenge to the sufficiency of the evidence may be raised for the first time
on appeal, a challenge to the weight of the evidence must be properly
preserved. Rule 607(A) of the Rules of Criminal Procedure states:
A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
____________________________________________
3
In his brief, Appellant also raised five issues for a wholly unrelated case.
This Court sua sponte split Appellant’s appeal into two cases, see Order,
3/2/17, and has addressed those five issues in the appeal docketed at No.
1157 EDA 2015. See Commonwealth v. Muhammad, 2017 WL 1205087
(Mar. 31, 2017).
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J-S93046-16
In challenging both sufficiency and the weight of the evidence
supporting all of his convictions, Appellant contends that the sole eyewitness
was motivated to testify against him because of a plea agreement and that
this witness’ testimony was not credible. Appellant similarly contends that
the witness who testified as to Appellant’s confession to the crimes in
question was also not credible. We conclude Appellant is due no relief.
Initially, we observe that Appellant failed to preserve his weight claim
with the trial court and thus has waived it. See Pa.R.Crim.P. 607(A). Even if
Appellant had not waived that claim, both his weight and sufficiency claims
lack merit for the reasons stated in the decision by the Honorable Jeffrey P.
Mineheart, and, after carefully reviewing the record, the parties’ briefs, and
Judge Mineheart’s opinion, we affirm on the basis of that opinion. See Trial
Ct. Op., 2/10/16, at 3-9 (holding (1) Appellant’s sufficiency claim, premised
on the credibility of the Commonwealth’s witnesses, is actually a weight
claim and thus lacks merit; (2) regardless, Appellant’s Rule 1925(b)
statement failed to identify the particular element of the specific crime or
crimes he was challenging and thus he waived it; (3) and in any event, the
evidence was sufficient for his convictions).4 Having discerned no error of
____________________________________________
4
The trial court cited Commonwealth v. Jarowecki, 923 A.2d 425 (Pa.
Super. 2007), in addressing Appellant’s weight claim. See Trial Ct. Op. at 9.
Our Supreme Court reversed this Court in that case on other grounds.
Commonwealth v. Jarowecki, 985 A.2d 955, 969 (Pa. 2009). The reversal
has no bearing on the correctness of the trial court’s disposition. With
(Footnote Continued Next Page)
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J-S93046-16
law or abuse of discretion, we affirm the judgment of sentence below. The
parties are instructed to attach a copy of the trial court’s opinion of February
10, 2016, to all future filings that reference this Court’s decision.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2017
_______________________
(Footnote Continued)
respect to the sufficiency claim relating to Appellant’s convictions under the
Uniform Firearms Act, the trial court held that although the Commonwealth
failed to submit evidence showing that Appellant was not licensed to carry a
gun, the record established that Appellant was not eligible for a license
because he was not yet 21 years old. Trial Ct. Op. at 11-12 & n.5.
Appellant makes no argument on appeal regarding proof of licensure, and
we therefore do not address that issue because it is waived. We note that,
as the trial court points out, id., Appellant received no further penalty
regarding that violation.
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03/20/2017 12:39-~. PM
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CP~S l-CR-0005336-201 O
MALIK MUHAfv1MAD
FILED·
FEB 1. 0 201~
OPINION .. PastTrial Unit ·
PROCEDURAL HISTORY
The above-named defendant was· charged as of the above Bill and Term number 'With,
inter alia, murder, generally; carrying a firearm without a license, carrying a firearm on a public
street, and possessing an instnunent of crime, generally. These charges stemmed from- an.
incident that occurred on October 2,. 2.008, during which appellant shot and killed Rasheed
.; Harrod in the area of 341" and Wallace Streets in Philadelphia.
Defendant's trial commenced before this Co"91i on January 3, 2013, on which date
defendant waived his right to a jury trial. The matter w~s continued "until July 19, 2013, on
which date this Court, found defendant guilty .of first-degree murder, and the offenses set forth
above. On this Court imposed an aggregate sentence of life imprisonment plus five years>
incarceration, which sentence was ordered to run consecutive to a life sentence plus thirty-five to
seventy years' incarceration imposed on- defend.ant ·in an unrelated matter. 1 Following the·
. . . .
I
The delay in sentencing resulted from negotiations between the Commonwealth "and defendant aimed at working
out a plea deal in the instant matter given that appellant had been convicted of second-degree murder and related
offenses in a matter unrelated to the instant matter.
e-
imposition of sentence,
. appellant filed a.notice of appeal and a requested
. Pa.R.A.P. J925(b)
FACTUAL IDSTORY
On October 2, 2008, Just before.midnight, Brian Duran, who went by the nick.name
"Pacman," went-to the area of34th_ and Wallace Streets after receiving a callfroma friend named
Rasheed Harrod. Upon arrival at that location, Duran saw Harrod exit Sam's Deli Chinese store
and begin walking in his direction. Duran then saw defendant, who had the hood of his
sweatshirt drawn tight around his face, come from inside the store, run up to Harrod; and shoot
him after which defendant fled.
Harrod eventually died from his injuries. An autopsy of his body revealed that he died as
a single gunshot wound to the back of bis head. The manner of death was deemed to be
homicide.
Duran did not speak to police the night of the incident or tell them what he had witnessed
because he, himself was a criminal. Sometimeafter.the incident, Duran was arrested on federal
charges and during a proffer session he related that he witnessed defendant shoot Harrod, Dwan
thereafter gave Philadelphia Homicide detectives a statement wherein. he stated that he had
witnessed the murder of Harrod.
Subsequent thereto, both Duran and defendant encountered one another when they were
. .
being transported to the Criminal Justice Center in Philadelphia for defendant's preliminary .
hearing. Defendant threatened to kill Duran and harm-his family if Duran continued to cooperate
with authorities. During this incident, two apparent associates of defendant assaulted Duran,
which required that he receive medical treatment. As a result of the incident, defendant's
'preliminary hearing had to be postponed.
2
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• _1 __
In 2009, Mr. Frank Herbert and defendant were incarcerated· together.f According to
Herbert, he and defendant were standing with other inmates when defendant stated that he had
been jailed because of a homicide he committed that had been witnessed by a couple of people
after he exited a Chinese store. _Defendant stated that he had a hood pulled tight on h.is face when
he committed the crime and that he· had to get· out of custody to take care of somebody. He
further stated that associates of his had approached family members of a person nicknamed
"Pacman" for the purpose of having them convince Pacrnan not to testify against him.
Defendant testified in his defense-and denied having .shot Harrod. Defendant indicated
that Duran accused him of committing the crime because defendant refused to sell drugs for
· Duran. He further stated that he. confronted Duran when they were incarcerated. because he was
angry that Duran was falsely accusing him of the murder. Finally, he stated that he had never
seen Mr. Herbert before Herbert testified.
DISCUSSION
In his 1925(b)" statement, defendant first asserts that the evidence was insufficient to
support the charges because the evidence of guilt came from 'only two. witnesses, whose
testimony, defendant contends, failed to prove each element of the crimes defendant was
.convicted of committing, 3 In essence, defendant is arguing· that the testimony presented by the
two witnesses was not credible and thus, incapable of supporting the verdict.
The Pennsylvania Supreme and Superior Courts have repeatedly held, sufficiency review
does not include an assessment of the credibility of witness testimony or other evidence.
Commonwealth v. Brown, 648 A.2d 1177, 1191 (Pa 1994); Commonwealth v. Wilson. 825
2
Herbert revealed what defendant told him during a proffer session with federal authorities. ·
3
Defendant indicates that defendant wasconvicted of robbery. Defendant is mistaken because thatcharge was
dismissed prior to the trial and was not one of'the charges upon which a verdict was rendered;
,-
3
A.2d 710, 713 (Pa. Super. 2003), and that testimonial conflicts will not render evidence
insufficient. Commonwealth v. Hargrave, 745 A.2d 20, 22 (Pa. Super. 2000); Commonwealth v.
Mechalski, 707 A.2d 528, 530 (Pa. Super. 1998). The courts have thus repeatedly rejected
"sufficiency" arguments that are directed at the weight and credibility of the evidence. See e.g.,
Commonwealth v. Small, 741 A.2d' 666, 672 (Pa. 1999) (rejecting ·argument that evidence
supporting. his murder conviction was insufficient due to inconsistencies between various
witnesses' testimony because "[although appellant phrases this as a sufficiency argument, the
challenge goes to the weight of the evidence"), cert. denied, 531 U.S. 829 (2000);
Commonwealth v. Sullivan, 864 A.2d 1246, 1249-50 (Pa. Super. 2004) (finding credibility
arguments inappropriate for sufficiency claim); Commonwealth v. Hodge, 658 A.2d 386, 389
(Pa. Super. 1995) ("Unlike the challenge of legal sufficiency of the evidence, the complaint that
the verdict was against the weight of the evidence requires an assessment of the credibility of the
· testimony offered by the Commonwealth.") (internal quotations and citation omitted).
Appellant's credibility-based sufficiency arguments are therefore unavailing especially because
the uncorroborated testimony of single witness may alone be sufficient to convict a defendant.
Commonwealth v. Keaniey, 601 A.2d 346, 349 n.6 (Pa. Super. 1992).
Accordingly, because this Court, sitting as fact-finder, found the testimony presented by
the Commonwealth credible, it is suggested that if this claim is deemed not to have been waived,
the Honorable Court find that the evidence was sufficient to sustain the verclicts and grant no
relief with respect to this claim.
The claim should also be deemed waived because defendant failed to articulate which
elements of the crimes he was convicted of committing the Commonwealth failed to establish.
"[WJhen challenging the sufficiency of the evidence on appeal, the [a]ppellant's [Rule] 1925
j:
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statement must 'specify the element or elements upon which the evidence was insufficient' in
order to preserve the issue for appeal_:' Commonwealth v. Gibbs. 981 A.2d 274, 281 (Pa. Super.
2009), appeal denied, 3 A.3d 670 (Pa. 2010) (quoting Commonwealth v. Williams, 959 A.2d
1252, 1257 (Pa. Super. 2008)). "Such specificity is of particular importance in ceses here ... the
[ajppellant was convicted of multiple crimes each of which contains numerous elements that the
Commonwealth must prove beyond .a reasonable doubt." Gibbs, supra (holding appellant waived
challenge to sufficiency of evidence where appellant failed to specify in Rule l 925(b) statement
which convictions, and. which elements of those crimes, he was challenging on appeal; fact that
trial court addressed appellant's sufficiency claim in its opinion was of no moment to waiver
analysis).
In any event, if it is determined that defendant preserved his sufficiency challenge, it is
suggested that no relief be accorded defendant because the evidence was sufficient to support the
charges. A review of a sufficiency claim requires that the evidence presented by the
Commonwealth be assessed to ascertain if it establishes each material element of the crime
beyond a reasonable doubt. Commonwealth v. Pag~ 950 A.2d 270, 278 (Pa. 2008). The
evidence and all reasonable inferences are viewed in the light most favorable to the
Commonwealth as verdict winner. Commonwealth v. Watkins, 843 A.2d 1203, 1211 (Pa. 2003);
Commonwealth v. Collins, 703 A.2d 418, 420 (Pa. 1997).
The elements of first-degree murder are that; (1) a human being was unlawfully killed;
(2) the person accused is responsible for the murder; and (3) the accused acted maliciously and
with a specific intent to kill. 18 Pa.C.S. § 2502(a); ~ also Commonwealth v. Chimel, 889 A.2d
501, 517 (Pa. 2005). A "specific intent to kill" is "the state of mind ... which accompanies a killing
which was willful) deliberate and premeditated:' Commonwealth v. Ragan, 743 A.2d 390, 400
5
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. (Pa..-1999); see also 18 Pa.C.S. § 2502(d). The requisite specific intent to kill may be established
Ii .: by evidence showing the knowing application of deadly force to the person 'of another,
l
Commonwealth v. Hall. 701 A.2~ 190,.196 (Pa. 1997),.and may be inferred by the use of.a
weapon on a vital part of the victim's body. Commonwealth v. McCrae, 832 A.2d_i026, 1030 ·.
(Pa. 2003).
Here, the evidence, viewed in the light most favorable. to the Commonwealth,
. .
overwhelmingly supports defendant's first-degree murder conviction. The evidence established
that defendant walked up behind the victim and shot him in thehead, a vital.part of the body, In
addition, defendant admitted having killed the victim. This evidence was mere than sufficient to
support the conviction. It is well-settled that '.'[a] defendant can be convicted on the positive
. .
identification of one witness." Conunonwealth v. Saldutte~7 A.2d·l21, 123 (Pa. Super. 1939).
See also Commonwealth v. King, 959 A.2d 405, 411 (Pa. Super. 2008) (identification testimony
of eyewitnesses sufficient, without physical evidence.jo support first-degree murder conviction}.
The ·evidence was sufficient to support the other crimes as well. The crime of Possessing
an instrument of crime is set forth in 18 Pa.C.S. § 907 as follows:
(a) Criminal instruments generally.v-A .person
commits a misdemeanor of the first degree. if he
possesses any instrument · of crime with intent to
employ it criminally.
18 Pa.C.S. § 907.
It is the Commonwealth's burden to prove that the defendant possessed an object-that is
an instrument of crime with the intent to use the object for a criminal purpose. In the Interest of
A.C., 763 A.2d-889, 890 (Pa.Super. 2000).
A person.commits the crime of carrying a firearm without a license, 18. Pa. C.S. § 6106, if
-he or she carries a concealed firearm without a license. A person violates 18. Pa. c.s. § 6108,
6
,~~------ . ..:.:........: :;i.··~.:..·· ... ·.··. .. . . -~2-· ...• :· '•'"'·-·~·-·· •. , ·· .•
which defines the crime of carrying a firearm without a license if he or she carries a "firearm,
rifle or shotgun at any time upon the public streets or upon any public property" in Philadelphia
unless licensed to do so or exempt from the license requirement. For purposes of these sections,
a "firearm" is "[a]ny pistol or revolver with a barrel length less than 15 inches, any shotgun with
a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any
pistol, revolver, rifle or shotgun with an overall length of less than 26 inches." 18 Pa. C.S. §
6102.
Instantly, the evidence established that defendant possessed a firearm with the intent to
employ it criminally. It also established that defendant carried a firearm on a public street in
Philadelphia. Finally, because defendant was under the age of twenty-one when the crimes
herein were committed he was incapable of obtaining a gun license. Therefore, the evidence was
sufficient to support these three charges and, therefore, it is suggested that defendant's claim
with respect to this issue be denied in the event that it is not deemed to have been waived.4
In his second claim, Appellant argues that the verdict was against .the weight of the
evidence because he testified credibly. Said claim should be deemed waived because it was not
raised before this Court either orally or in a post-sentence motion. In order to preserve a weight
of the evidence claim for appellate review said claim must be presented to the trial court or else it
is waived.
Regarding Appellant's weight of the evidence claim we
note that Appellant did not make a motion raising a weight of the
evidence claim before the trial court as the Pennsylvania Rules of
4It appears that the Commorlwealth failed to present direct evidence of non-licensure. However, as noted, defendant
was under the age of twenty-one when he committed the crime and was ineligible to obtain a firearms license. In the
event the Honorable Court determines that the evidence was insufficient to support the charge of carrying a firearm
without a license a remand would be unnecessary because a verdict without further penalty was entered on that
charge.
7
Criminal Procedure require. See Pa.R.Crim.P. 607(A).22 The fact
that Appellant included an issue challenging the verdict on weight
of the evidence grounds in his 1925(b) statement and the trial court
addressed Appellant's weight claim in its Pa.R.A.P 1925(a) opinion
did not preserve his weight of the evidence claim for appellate
review in the absence of an earlier motion. Pa.R.Crim.P. 607(A);
Steiner v. Markel, 600 Pa. 515, 968 A.2d 1253, 1257 (2009)
(holding that inclusion of an issue in a 1925(b) statement that has
not been previously preserved does not entitle litigant to appellate
review of the unpreserved claim); Mack, 850 A.2d at 694 (holding
weight claim waived by noncompliance with Pa.R.Crim.P. 607,
even if the trial court addresses it on the merits); Commonwealth v.
Burkett, 830 A.2d 1034, 1037 (Pa.Super.2003) (same). See also
Commonwealth v. Little, 879 A.2d 293, 300-301 (Pa.Super.2005),
appeal denied, 586 Pa. 724, 890 A.2d 1057 (2005);
Commonwealth v. Washington, 825 A.2d 1264, 1265
(Pa.Super.2003). Appellant's failure to challenge the weight of the
evidence before the trial court deprived that court of an opportunity
to exercise discretion on the question of whether to grant a new
trial. Because "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,"
. I Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 753
. I
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(2000), this Court has nothing to review on appeal. We .thus hold
that Appellant waived his weight of the evidence claim because it
was not raised before the trial court as required by Pa.R.Crim.P.
607.
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).
In accordance with the holding of Sherwood, it is respectfully suggested that defendant's
weight claim be deemed waived.
In the event that the claim is considered not to have been waived, it is suggested that it be
denied. The standard in reviewing a weight of the evidence claim is well-settled:
Appellate review of a weight claim is a review of the exercise of
. !
discretioh, 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 grayest 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
8
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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) (emphasis and citations omitted);~
also Commonwealth v. Sanchez, 36 .3d 24, 27 (Pa. 2011) (stating that "[rjelief on a weight of the
evidence claim is reserved for extraordinary circumstances, when 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 right may be given another opportunity to prevail." (citation omittedj).
The initial determination regarding the · weight of the evidence is for the fact-finder.
Commonwealth v. Jarowecld, 923 A.2d 425, 433 (Pa. Super. 2007). The trier of fact is free to
believe all, some or none of the evidence. Id. A reviewing court is not permitted to substitute its
judgment for that of the fact-finder. Commonwealth v. Small, 741. A.2d 666, 672 (Pa. 1999).
When the challenge ta the weight of the evidence is predicated on the credibility of trial
testimony, appellate review of a trial court's decision is extremely limited. Unless the evidence is
so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, weight
of evidence claims shall be rejected. Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa.
Super. 2004).
Defendant asserts that this claim has merit based on alleged inconsistencies between
Duran's testimony at trial and that which he gave at appellant's preliminary hearing as well as
the fact that Duran observed the incident by watching it in the rear view mirror of his car.
Defendant also states that verdict was against the weight of the evidence because Frank Herbert
did not witness the incident and did not know defendant at the time the crime occurred.
Defendant claims that these factors render the testimony incredible.
9
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Assessing the credibility of a witness and according that testimony appropriate weight is
within the province of the trier of fact, here the trial judge. 523 A.2d 1140 (Pa. Super. 1987),
alloc. denied 5533 A.2d 712 (Pa. 1987). This Court found the testimony presented by the
witnesses credible and also that the verdict did not shock the conscience. While there were
inconsistencies in the testimony presented by J?uran and Herbert, this Court credited their
testimony and was convinced beyond. a reasonable doubt by it that defendant killed the victim
herein. Accordingly, it is suggested that if the instant claim is not deemed waived, defendant not
be granted relief thereon for the reasons stated.
CONCLUSION
For the foregoing reasons, the defendant's assertions of error should be dismissed for lack
of merit and the judgment of sentence entered in this matter should be affirmed.
By the Court,
DATE: d:I« { l6
10