Com. v. Hall, V. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR HALL :
:
Appellant : No. 396 WDA 2020
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012763-2017
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY DUBOW, J.: FILED DECEMBER 14, 2020
Appellant, Victor Hall, appeals from the Judgment of Sentence entered
on November 26, 2019, after the court found him guilty after a bench trial of
Robbery, Terroristic Threats, and Possession of an Instrument of Crime
(“PIC”).1 Appellant challenges the weight of the evidence. After careful review,
we affirm.
We derive the following factual and procedural history from the trial
court Opinion and certified record. At around 11:45 P.M. on September 28,
2017, Danielle Rothka was walking along 17th Street in Pittsburgh’s South Side
when Appellant stepped into her path. He pointed a handgun at Rothka and
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3701(a)(1)(ii), 2706(a)(1), and 907(b), respectively.
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told her, “give me your fucking money or I will fucking kill you.” He took her
cell phone and wallet, then fled.
Rothka immediately called the police from a neighbor’s phone. She
described the perpetrator as an African American male in his early-to-mid 20s,
over six feet tall, skinny, and wearing a red Nike sweatshirt, light jeans, and
white shoes. Shortly after, police found Appellant, who matched Rothka’s
description except that he was wearing dark jeans and dark shoes. He was
standing with two other men nearby on 18th street. Police detained all three
men and, at around 1:00 A.M., took Rothka to 18th street for a “show up”
identification. Rothka identified Appellant as the man who robbed her.
Appellant’s trial began on August 27, 2019. Rothka testified and again
identified Appellant as the perpetrator of the crimes. She explained that, in
addition to the description she gave police, she identified Appellant based on
his distinctive nose and lips. The Commonwealth also presented the testimony
of Pittsburgh Police Officer Craig Genser, who confirmed that Rothka identified
Appellant at the “show up.”
At the conclusion of trial, the court convicted Appellant of the above
charges, indicating that it found Rothka to be “absolutely credible” and
“beyond a reasonable doubt that she has identified the perpetrator in this
case.” N.T. Trial, 8/29/19, at 305. On November 26, 2019, the court
sentenced Appellant to an aggregate term of three to six years’ incarceration
followed by two years’ probation. Appellant filed a timely Post-Sentence
Motion, which the trial court denied on February 26, 2020. Appellant then filed
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a timely Notice of Appeal, and both he and the trial court complied with
Pa.R.A.P. 1925.
In his sole issue on appeal, Appellant challenges the weight that the
court, sitting as factfinder, gave to Rothka’s “show up” identification of
Appellant. Appellant’s Br. at 9. He focuses solely on Rothka’s “show up”
identification, alleging that it was the “only one piece of evidence that tied
[Appellant] to incident (sic) at issue” Id. In support of his challenge, Appellant
argues that the “show up” was suggestive, and Rothka’s identification based
on his facial features was inadequate because “[t]hese attributes are
consistent with those of many African Americans.” Id. at 12. He also
emphasizes that, at the time of his arrest, he did not run from the police, was
not wearing the exact clothing Rothka described, and was not in possession
of the stolen items. Id. at 10-11.
Appellate review of a weight claim is a review of the trial court’s exercise
of discretion in determining whether the verdict is against the weight of the
evidence. Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super.
2015). The weight of the evidence itself, however, is a matter exclusively for
the factfinder, who is free believe all, part, or none of it and to determine the
credibility of witnesses. Commonwealth v. Gonzalez, 109 A.3d 711, 723
(Pa. Super. 2015). In order for a defendant to prevail on a challenge to the
weight of the evidence, “the evidence must be so tenuous, vague[,] and
uncertain that the verdict shocks the conscience of the court.” Talbert, 129
A.3d at 546 (citation omitted).
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In denying Appellant’s weight challenge, the trial court noted that
Appellant made the same arguments in his closing statement at trial. N.T.,
Trial, 4/22/20, at 24-25. It explained that, as factfinder, it assessed Rothka’s
credibility and weighed her testimony against Appellant’s arguments before
finding Rothka credible and her identification reliable. Id. The court then
reviewed the evidence admitted at trial, discussed supra, and concluded that
it had properly weighed the evidence. Id. at 26.
Appellant essentially asks this court to reweigh the evidence and
reassess Rothka’s credibility. It is well-settled, however, that this Court cannot
substitute its judgment for that of the factfinder. The factfinder weighed the
evidence and found that Rothka credibly and reliably identified Appellant as
the perpetrator of the crimes, notwithstanding Appellant’s arguments to the
contrary. Id. at 24-25. See N.T. Trial, 8/29/19, at 305-07. Moreover, the
evidence demonstrates that, in addition to the “show up” identification, Rothka
directly identified Appellant at trial as the person who robbed her. N.T. Trial,
8/27/19, at 37-38. Thus, contrary to Appellant’s assertion, the
Commonwealth did not rely solely on Rothka’s “show up” identification to tie
Appellant to the incident at issue.
After review, we conclude that the verdict is not contrary to the evidence
so as to shock the conscience. We, therefore, conclude that the court did not
abuse its discretion in denying Appellant’s weight of the evidence challenge.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2020
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