91 A.3d 165
Pa. Super. Ct.
2014

COMMONWEALTH OF PENNSYLVANIA, Appellant v. BASIR LARK, Appellee

No. 3429 EDA 2012

IN THE SUPERIOR COURT OF PENNSYLVANIA

APRIL 09, 2014

2014 PA Super 70

BEFORE: GANTMAN, DONOHUE and PLATT*, JJ.

Appeal from the Order entered November 13, 2012, Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0008139-2010

DISSENTING OPINION BY DONOHUE, J.: FILED APRIL 09, 2014

I respectfully disagree with the learned Majority‘s conclusion that the record does not support the trial court‘s factual findings. See Maj. Op. at 10. Our scope and standard of review clearly state that we are bound to accept the trial court‘s factual findings that are supported by the record. Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011), appeal denied, 613 Pa. 662, 34 A.3d 827 (2011). As such, the Majority runs afoul of our well settled scope and standard of review by making its own contrary factual findings and credibility determinations based upon a de novo review of the cold record. For this reason, I dissent.

In ruling on Lark‘s suppression motion, the trial court found that (1) S.B. was inside the house when the victim was shot; (2) S.B. was permitted to speak with her mother, Frances McNeill (“McNeill“), prior to giving a statement to the police on the day of the murder; and (3) McNeill was present during S.B.‘s interview the following day, during which she identified Lark as the shooter in a photo array. Trial Court Opinion, 1/17/13, at 2. These finding are supported by the following evidence of record: McNeil testified that S.B. was not on the porch before the shooting and that it was only after the shooting that S.B. attempted to come outside, N.T., 11/9/12, at 68; S.B. testified that her mother was with her at the police station on the day of the murder and that they reviewed the statement S.B. gave to the police together, N.T., 11/13/12, at 16-17; and S.B. testified that her mother was present while the detective was showing S.B. the photo array, and that she spoke with her mother about the pictures. Id. at 12. Because this testimony supports the trial court‘s findings, we are bound by them. Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008), appeal denied, 598 Pa. 787, 959 A.2d 928 (2008) (“Our scope of review over the suppression court‘s factual findings is limited in that if these findings are supported by the record we are bound by them.“).

The Majority does not abide by this standard, choosing instead to weigh the evidence and make its own findings of facts. For instance, the Majority concludes that “when S.B. heard the first shot she ran to the doorway and came outside of the house.” Maj. Op. at 2. This statement directly contradicts the trial court‘s finding, supported by competent evidence as cited above, that S.B. was in the house during the shooting. Moreover, this finding was essential to the trial court‘s ruling, as its decision to grant Lark‘s suppression motion was based in part on its finding that S.B. did not observe the shooter. Trial Court Opinion, 1/17/13, at 2. By impermissibly reweighing the evidence and making a different factual finding, the Majority undermines the basis for the trial court‘s ruling.

To bolster its conclusion that the trial court‘s findings are not supported by the record, the Majority points to testimony that contradicts the trial court‘s factual findings. For example, the Majority excerpts a portion of S.B.‘s testimony during cross-examination by Lark‘s counsel regarding whether she and McNeill conferred about the photo array in support of its determination. Maj. Op. at 8-9. I do not dispute that there is evidence that would have supported a contrary decision by the trial court; however, the trial court rejected this evidence, as is its prerogative. See Commonwealth v. Forbes, 867 A.2d 1268, 1272-73 (Pa. Super. 2005) (“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.“). That is to say, although in one instance S.B. testified that she did not speak to McNeill about the images in the photo array, the trial court rejected that testimony as incredible. By pointing to such evidence in support of its conclusion, the Majority is reweighing the evidence and making its own factual findings.

In sum, because the record supports the trial court‘s key findings regarding S.B. conferring with McNeil about the identification and S.B.‘s location inside the house at the time of the shooting, we must uphold them. Fulmore, 25 A.3d at 346. I accordingly dissent.

*Retired Senior Judge assigned to the Superior Court.