Com. v. Dews, D. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DARRYL DEWS, : No. 918 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, November 8, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0001366-2012,
CP-51-CR-0001772-2012, CP-51-CR-0014064-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 28, 2015
Appellant, Darryl Dews, robbed three barbershops at gunpoint.
Following a jury trial, he was convicted of 12 counts of robbery, three counts
of conspiracy, and three counts of possessing an instrument of crime. On
November 8, 2013, the Honorable Glenn Bronson sentenced appellant to an
aggregate term of 50 to 100 years’ imprisonment. We affirm.
The facts and procedural history, as summarized by the trial court, are
as follows.
On November 18, 2011, Stevie Bright was at
the N the Kuts barbershop, located at 2514 South
71st Street in West Philadelphia, repairing the
bathroom floor. N.T. 9/21/13 at 49. Also present in
the shop were Bright’s friend, Stephen Green, the
barber Jaladeen Fleming, a Mr. McGlone, and an
unidentified juvenile. N.T. 9/20/13 at 154-155;
9/21/13 at 50. Defendant and Michael Lewis entered
* Former Justice specially assigned to the Superior Court.
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the barbershop wearing ski masks that left their
faces exposed and with firearms extended. N.T.
9/21/13 at 50-52. Defendant stated, “[t]his is a
robbery, everybody get on the ground.” N.T.
9/21/13 at 29. Defendant and Lewis took cell
phones, cash, and other items from the occupants of
the barbershop before leaving. N.T. 9/21/13 at 51.
Officers were not able to locate defendant or Lewis
that night. N.T. 9/20/13 at 156.
On November 23, 2011, Kali Avans,
Dwight Lee, and Tonya Lee-Phillips were getting their
hair cut at the Stay Focused barbershop, located at
6031 Vine Street in West Philadelphia, by barbers
Quimon Broady and Khalil Avans. N.T. 9/21/13 at
119. Also present was Ms. Lee-Phillips’s three-year-
old child. N.T. 9/21/13 at 119. At approximately
8:30 p.m., Corey Petty entered the barbershop in
order to “scope it out” for defendant and Lewis, who
were waiting outside the barbershop. N.T. 9/21/13
at 185. Petty asked for the price of a haircut for
himself and his younger brother and then left the
barbershop. N.T. 9/21/13 at 184. Defendant and
Lewis then entered. N.T. 9/21/13 at 187. Upon
entering the barbershop, defendant, wearing, a black
skull hat, black jacket, and blue jeans, and Lewis
announced a robbery and ordered everyone to the
floor. N.T. 9/21/13 at 128. Defendant approached
Dwight Lee and, holding a gun to Lee’s head, said
‘‘[y]’all know what it is.” N.T. 9/21/13 at 150.
Turning to Ms. Lee-Phillips, defendant demanded
“[b]itch, where is your pocketbook?” N.T. 9/21/13
at 153. Defendant subsequently took multiple items
from the occupants of the barbershop, including cell
phones and Ms. Lee-Phillips’ purse, before leaving.
N.T. 9/21/13 at 129-131. After defendant left,
Avans dialed 911 and alerted the police of the
robbery. Philadelphia Police Officer Anthony Jones
responded to the scene but was unable to locate
defendant. N.T. 9/20/13 at 145.
On November 25, 2011, William Lovett and
Officer Anthony Jackson, then off-duty, were getting
their hair cut at Brothers Barbershop, located at the
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corner of 53rd and Sansom streets in
West Philadelphia. N.T. 9/19/13 at 56, 172. Also
present in the barbershop were Candace Rahemtulla,
an employee of the barbershop, as well as barbers
Jamal Edwards and Corey Ellis. N.T. 9/19/13 at 105,
173. While Officer Jackson was getting his hair cut,
defendant and two other individuals,
McDaniel Walker and Danny Matthews, entered the
barbershop with firearms extended and defendant
announced “[y]ou know what this is,” ordering
everyone to the floor. N.T. 9/19/13 at 60, 106, 174.
Defendant was wearing a gray sweatshirt and gray
sweatpants. N.T. 9/19/13 at 177. Defendant
directed Walker and Matthews as they collected
wallets, cell phones, and other items from the
occupants of the barbershop. N.T. 9/21/13 at 191;
9/19/13 at 182. Officer Jackson, in an attempt to
prevent the assailants from finding his firearm,
moved his gun from his right hip to his stomach
before lying down on the ground. N.T. 9/19/13 at
175-176. After Officer Jackson laid down on the
ground, defendant stated “[y]o, check that mother
fucker, he doing a lot of moving,” whereupon the
other two men patted down Officer Jackson and
found his firearm. N.T. 9/19/13 at 178-179. After
all occupants were searched and items seized,
defendant Walker, and Matthews left the barbershop,
having left victim Candace Rahemtulla in possession
of her cell phone, from which she dialed 911. N.T.
9/19/13 at 108. After the assailants left the
barbershop, Officer Jackson followed them until they
entered into a white Chevy vehicle, parked on the
north side of Sansom Street. N.T. 9/19/13 at 184.
Officer Jackson then used the cell phone of a
concerned citizen in the area and called 911,
identifying himself as an off-duty police officer, and
gave a description of the three individuals, as well as
the vehicle in which they had left the area. N.T.
9/19/13 at 189.
Philadelphia Police Officer Eric Girill was the
first Philadelphia Police Officer to arrive at the
Brothers Barbershop, having been flagged down by
Officer Jackson. N.T. 9/19/13 at 117.
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William Lovett informed Officer Girill that his iPhone
had been taken, and that he had installed the “Find
My iPhone” app on the phone, which permits the
remote activation of an iPhone’s built in GPS locator
in order to determine the phone’s location. N.T.
9/19/13 at 70. Officer Girill inputted Lovett’s
identifying information into his own iPhone, which
located Lovett’s phone in the area of 57th and Walnut
Streets. N.T. 9/19/13 at 121. Officer Girill relayed
this information over police radio, refreshing the
location information every 15 seconds. N.T. 9/19/13
at 122.
Officer Christina Mellett and her partner,
Officer Jessie, responded to the relayed iPhone
information and arrived at 57th and Walnut Street.
N.T. 9/19/13 at 141. There they noticed
Corey Petty, rapidly knocking on a door yelling “[l]et
me in, let me in.” N.T. 9/19/13 at 144.
Officer Mellett stopped Petty and did a search for
officer safety, locating Lovett’s iPhone on Petty’s
person, which Petty later claimed he had bought
from a “smoker.” N.T. 9/19/13 at 145, 154. A white
Chevy vehicle was parked directly across the street.
N.T. 9/20/13 at 84. Lovett later identified his iPhone
at the scene. N.T. 9/19/13 at 73.
Soon after Officer Mellett detained Petty,
Officer Joseph Keys arrived at the scene and went to
the property that Petty had been attempting to
enter. Petty’s mother, Nichole Petty, answered the
door while defendant was standing behind her. N.T.
9/20/13 at 42. Defendant was wearing the same
gray sweat suit he had worn during the robbery.
N.T. 9/20/13 at 44. Defendant was detained for
further investigation, as were the co-defendants who
were found at the home. N.T. 9/20/13 at 44.
Approximately fifteen minutes after the robbery
occurred, Officer Jackson and Lovett were
th
transported to 57 and Sansom Streets, where they
positively identified all individuals who had entered
the barbershop. N.T. 9/19/13 at 73-76, 193.
Defendant was subsequently taken into custody.
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After transporting Petty to the police station for
processing, Officer Mellett found keys to a Chevy
Impala on the back floor of her police vehicle where
she had placed Petty. N.T. 9/19/13 at 150. These
keys matched the white Chevy vehicle parked
outside the 57th Street residence. N.T. 9/19/13 at
151. Petty subsequently gave a statement to police
implicating himself in the Brothers Barbershop
robbery, as well as the robbery at the Stay Focused
barbershop. N.T. 9/21/13 at 204. N.T. 9/21/13 at
131. Using the statements given by Petty, police
obtained a search warrant for Petty’s girlfriend’s
home on North 63rd Street, where they recovered the
cell phone belonging to Quimon Broady, a victim of
the Stay Focused robbery.
Later that evening, Detective Craig Fife
obtained a search warrant for the 57th Street
residence, as well as the white Chevy vehicle parked
outside. N.T. 9/20/13 at 84. Recovered from the
residence were a black iPhone, later identified as
belonging to Officer Jackson, and a snub nose
.38 caliber Smith & Wesson revolver. N.T. 9/20/13
at 96-97. Recovered from the vehicle was a
.40 caliber Glock semi-automatic handgun, later
identified as belonging to Officer Jackson, and two
AAA cards with the name Tonya Lee-Phillips. N.T.
9/20/13 at 88-89. Detective Fife ran Ms. Lee-Phillips
name through the police database and determined
that she was a victim of the robbery at the Stay
Focused barbershop. N.T. 9/20/13 at 91. Detective
Fife then did a search to determine if any other
similar robberies had occurred in the area,
identifying the robbery of the N the Kuts barbershop.
N.T. 9/20/13 at 107.
On November 27, 2011, Kali Avans, from the
Stay Focused robbery, was asked to view a photo
array containing defendant’s photo. Avans picked
defendant out of the photo array, circling defendant’s
photo and stating he was 85% certain that
defendant was the individual who had robbed him.
N.T. 9/21/13 at 136. On January 11, 2012,
Detective Bill Urban conducted a court-ordered
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lineup for Avans and Ms. Lee-Phillips. N.T. 9/21/13
at 107. Avans did not hesitate in picking defendant
out of the lineup. N.T. 9/21/13 at 110. Ms. Lee-
Phillips did not correctly identify defendant at the
lineup, instead identifying another participant in the
lineup. N.T. 9/21/13 at 110.
On November 29, 2011, Detective Fife
contacted Stevie Bright, a victim of the N the Kuts
barbershop robbery, in order to show him a photo
array containing defendant’s photograph. N.T.
9/20/13 at 110. Bright identified defendant as a
person involved in the robbery. N.T. 9/20/13 at 110,
N.T. 9/21/13 at 64.
Trial court opinion, 6/10 14 at 2-6 (footnote omitted).
Prior to the beginning of the jury trial, appellant raised a motion to
suppress. The purpose of the motion to suppress was that the identification
made of appellant was highly suggestive and improper such that it deprived
him of a fair trial. Hearings were held on September 17 and 18, 2013. The
Commonwealth presented the testimony of Detectives Fife and Maurizio,
Officers Butler and Jackson, and a victim, Lovett. Their testimony regarding
the identification of appellant as the perpetrator of the robberies was
consistent with the evidence presented at trial. The court denied the
motion.
Appellant presents two issues for our review.
A. DID THE TRIAL COURT ERR WHEN IT DENIED
THE MOTION TO SUPPRESS THE IN-COURT
IDENTIFICATION OF THE APPELLANT WHERE
THE ON-SCENE IDENTIFICATION OF THE
APPELLANT WAS HIGHLY SUGGESTIVE?
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B. WAS THE EVIDENCE PRESENTED
INSUFFICIENT AND/OR AGAINST THE WEIGHT
OF THE EVIDENCE TO SUPPORT THE VERDICT
WHERE IT FAILED TO SHOW THAT THE
APPELLANT COMMITTED THE ROBBERIES FOR
WHICH HE WAS ACCUSED?
Appellant’s brief at 6.
Appellant first argues that the on-scene identifications of
Officer Jackson and Mr. Levitt should have been suppressed as the
circumstances were highly suggestive. No relief is due.
Our standard and scope of review in evaluating a suppression issue are
settled.
We are limited to determining whether the lower
court’s factual findings are supported by the record
and whether the legal conclusions drawn therefrom
are correct. We may consider the evidence of the
witnesses offered by the Commonwealth, as verdict
winner, and only so much of the evidence presented
by [the] defense that is not contradicted when
examined in the context of the record as a whole.
We are bound by facts supported by the record and
may reverse only if the legal conclusions reached by
the court were erroneous.
Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa.Super. 2010)
(en banc).
In reviewing the propriety of identification evidence,
the central inquiry is whether, under the totality of
the circumstances, the identification was reliable.
The purpose of a “one on one” identification is to
enhance reliability by reducing the time elapsed after
the commission of the crime. 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
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factors. As this Court has explained, the following
factors are to be considered in determining the
propriety of admitting identification evidence: the
opportunity of the witness to view the perpetrator at
the time of the crime, the witness’ degree of
attention, the accuracy of his prior description of the
perpetrator, the level of certainty demonstrated at
the confrontation, and the time between the crime
and confrontation. The corrupting effect of the
suggestive identification, if any, must be weighed
against these factors. Absent some special element
of unfairness, a prompt “one on one” identification is
not so suggestive as to give rise to an irreparable
likelihood of misidentification.
Id., quoting Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.Super.
2003), appeal denied, 851 A.2d 142 (Pa. 2004).
Appellant’s argument focuses on the fact that, when identified, he was
in police custody and in handcuffs. (Appellant’s brief at 14-15.) As the
Commonwealth states, appellant’s argument has been repeatedly rejected.
While both Officer Jackson and Mr. Lovett identified appellant while in
handcuffs, this fact alone does not constitute grounds for reversing the
suppression court. Commonwealth v. Armstrong, 74 A.3d 228, 238
(Pa.Super. 2013), appeal granted on other grounds, 83 A.3d 411 (Pa.
2014) (finding that “on-scene, one-on-one identifications, even where an
appellant is handcuffed and officers ask a victim to identify him as the
perpetrator, are ‘not so suggestive as to give rise to an irreparable likelihood
of misidentification’”); Commonwealth v. Donley, 455 A.2d 159, 161-162
(Pa.Super. 1983) (holding that witness identification two hours after robbery
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while defendant was handcuffed and seated in the back of a police car did
not violate due process).
A review of the testimony presented at the suppression hearing
reveals that Jackson, an off-duty police officer, testified that the barbershop
was well-lit. Jackson positively identified appellant 15 minutes after the
crime occurred. The officer stated he was 100% certain appellant was the
perpetrator because “it happened just approximately 15 minutes before,”
and “appellant was wearing the same identical clothes.” (Notes of
testimony, 9/17/13 at 31.) Officer Jackson testified that nothing covered
appellant’s face during the robbery, and he observed appellant for
approximately three to five minutes.
Separately, Mr. Lovett positively identified appellant after the police
brought him to the scene of appellant’s arrest soon after the robbery. Lovett
testified that during the robbery, appellant stood no more than ten feet
away with nothing covering his face. Appellant was wearing a gray hooded
sweatshirt and gray pants. Lovett stated the lighting in the barbershop was
“extremely bright.” (Id. at 15.) No relief is due.
Appellant’s second issue combines two legally distinct arguments --
the sufficiency and the weight of the evidence. (Appellant’s brief at 16.)
Appellant’s claim is waived pursuant to Commonwealth v. Lemon, 804
A.2d 34 (Pa.Super. 2002). In Lemon, we held that although the appellant
raised some specific challenges in his appellate brief, the vagueness of his
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Rule 1925(b) statement,1 which prevented the trial court from analyzing his
claims of trial court error, precluded effective appellate review. We held that
under Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), and its progeny,
the appellant waived his claims on appeal. Id. at 37-38; see also
Commonwealth v. Seibert, 799 a.2d 64, 62 (Pa.Super. 2002) (appellant’s
weight of the evidence issue waived for having filed a vague Rule 1925(b)
statement, to wit, “[t]he verdict of the jury was against the weight of the
credible evidence as to all charges.”)
In this case, appellant’s court-ordered Rule 1925(b) statement
provided:
the verdict is against the weight of the evidence
and/or the evidence is insufficient to support the
verdict because: a. the evidence presented at trial by
the Commonwealth failed to support a conviction for
the crime of robbery and conspiracy. Specifically,
that the evidence introduced at trial was not
sufficient enough to cause a reasonable juror to
convict the appellant of said crimes.
Docket #11. Appellant was convicted of twelve counts of robbery and three
counts of conspiracy in relation to three separate robberies with numerous
victims. Appellant left the trial court to speculate as to the specific elements
not met with regard to each robbery and conspiracy or how the verdict was
against the weight of the evidence. In point of fact, the argument presented
1
The appellant in Lemon stated in his Rule 1925(b) statement that “[t]he
verdict of the jury was against the evidence,” “[t]he verdict of the jury was
against the weight of the evidence,” and “[t]he verdict was against the law.”
Lemon, 804 A.2d at 37.
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in appellant’s brief challenges the credibility of the testimony and
identifications of a number of eyewitnesses, neither of which the trial court
addressed in its Rule 1925(a) opinion, which summarily disposed of
appellant’s second issue. Thus, we find this issue has not been preserved
for appellate review.2
Judgment of sentence affirmed.
Stabile, J. joins the Memorandum.
Fitzgerald, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
2
We are cognizant of the supreme court’s decision in Commonwealth v.
Laboy, 936 A.2d 1058 (Pa. 2007), cited by the trial court. In Laboy, the
court determined we erred in deciding appellant had failed to adequately
develop his claim of insufficient evidence to support his conviction in his
Rule 1925(b) statement, noting that the case was a “relatively
straightforward drug case” though “in more complex criminal matters the
common pleas court may require a more detailed statement to address the
basis of the sufficiency challenge.” Id. at 1060. We find the instant matter
is distinguishable as it is more complex and requires at least some specificity
concerning whether appellant is taking issue with one or all of the robberies
and conspiracies.
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