Com. v. Banks, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TONY BANKS :
:
Appellant : No. 1858 WDA 2017
Appeal from the Judgment of Sentence November 16, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002492-2017,
CP-02-CR-0007772-2016
BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 1, 2019
Appellant, Tony Banks, challenges the judgment of sentence entered in
the Allegheny County Court of Common Pleas, following his convictions for
aggravated assault and related offenses. On appeal, Appellant argues the
Commonwealth failed to present any evidence to sustain his conviction for
criminal mischief. He also maintains the court erred in denying his motion to
suppress witness identification evidence. After careful review, we vacate
Appellant’s conviction for criminal mischief, and affirm the remainder of his
judgment of sentence.
On May 12, 2016, at around 11 p.m., a group of nine men loitered in an
abandoned lot in the Homewood neighborhood of Pittsburgh. The men,
including Paris Minard and Brandon Murray, were playing cards, drinking, and
idly chatting.
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Minard watched as a white Mercedes sport utility vehicle drove past the
lot three times. He recognized the driver as Appellant, a man Minard knew
from around the neighborhood by the nickname “Tone Jigga.” Murray had seen
Appellant in passing before, but did not know his real name.
Minard was wary of Appellant, and cautioned the other men in the yard
that Appellant was dangerous. This animus stemmed from an incident where
a former friend of Minard’s allegedly shot Appellant after the men got into an
altercation several years before. However, Minard had seen Appellant several
times on the street since that incident, and Minard did not believe Appellant
harbored any ill-will toward him.
After circling the block several times, Appellant exited his vehicle and
approached the yard. He shook hands and spoke with the men there, including
Minard. Minard observed that Appellant appeared to be intoxicated. Appellant
placed his cell phone in his pocket, at which time Minard could see the handle
of a semi-automatic gun sticking out of Appellant’s waistband. The sight of
the gun unnerved Minard, who excused himself from the group to go to the
corner store.
On his way back from the store, Minard saw several members of the
group had left, including Appellant. Murray was still playing cards as Minard
approached the lot. Appellant suddenly walked out from behind another
building and pointed the gun at Minard. Appellant said, “This is for getting me
shot by your boy,” and began firing several shots at Minard. Minard ran, but
was struck by a bullet in the ankle and fell. Appellant fled the scene.
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The next morning, police received a call from Murray. Murray told
officers that he had spotted Appellant in the Homewood neighborhood again,
this time driving a red Pontiac convertible. Murray told officers where he was
standing, and the direction in which he saw Appellant heading.
Several officers responded to the scene. Police conducted a traffic stop
of Appellant’s vehicle, and detained him. Murray was picked up by an officer
driving a marked patrol car, and driven past Appellant’s stopped vehicle and
the other cars. Murray identified Appellant as the shooter from the previous
night, and Appellant was arrested. Appellant was charged with attempted
murder, aggravated assault, possession of a firearm by a person prohibited,
carrying a firearm without a license, criminal mischief, and four counts of
recklessly endangering another person (“REAP”).1
At Appellant’s preliminary hearing, Minard identified Appellant as his
assailant. Appellant sought to suppress Minard and Murray’s identifications of
Appellant as the shooter, as well as evidence recovered from Appellant’s
vehicle following the traffic stop. After a hearing, the court denied the
suppression motions.
Appellant proceeded to a jury trial on all charges except possession of a
firearm by a person prohibited, which was severed from the jury case and
presented solely to the bench, and criminal mischief, a summary offense. At
the close of the Commonwealth’s case, the court entered a judgment of
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1The Commonwealth also charged Appellant with drug-possession offenses,
which were withdrawn before trial.
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acquittal on three of the REAP charges, as the Commonwealth conceded it
failed to present any evidence regarding these charges. Appellant was
convicted of aggravated assault, carrying a firearm without a license, the
remaining REAP count, possession of a firearm by a person prohibited, and
criminal mischief.2
The court ordered a pre-sentence investigation report, and ultimately
sentenced Appellant to an aggregate eight years and six months to seventeen
years’ incarceration, followed by five years of probation. Appellant filed a
timely notice of appeal, and this case is now properly before us.3
On appeal, Appellant raises two challenges to his judgment of sentence.
In the first, he argues the court erred in denying his motion to suppress Paris
Minard’s identification of Appellant as the shooter.
We review an order denying a motion to suppress by determining
whether the findings of fact are supported by the record, and whether the
legal conclusions drawn from those facts are without error. See
Commonwealth v. Freeman, 128 A.3d 1231, 1240 (Pa. Super. 2015). “In
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2 18 Pa.C.S.A. §§ 2702(a)(1); 6106(a)(1); 2705; 6105(a)(1); and
3304(a)(5), respectively.
3 Appellant filed a single notice of appeal from his two criminal docket
numbers. This practice was prohibited by our Supreme Court’s ruling in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Walker held that
where a single order resolves issues on more than one lower court docket, an
appellant must file separate notices of appeal at each docket number. See
id., at 977. Failure to do so requires quashal. See id. However, Walker was
decided on June 1, 2018, and applied prospectively. See id. As Appellant filed
his single notice of appeal on December 14, 2017, before Walker was
decided, we need not quash.
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making this determination, this Court may only consider the evidence of the
Commonwealth’s witnesses, and so much of the witnesses for the defendant,
as fairly read in the context of the record as a whole, which remains
uncontradicted.” Id. (citation omitted). “Where the record supports the factual
findings of the suppression court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom are in error.”
Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011) (citation
omitted).
The critical factor in determining the propriety of identification evidence
is whether, under the totality of the circumstances, the identification was
reliable. See Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super. 2011).
While suggestiveness in the identification process is a factor to be considered
when determining the admissibility of identification testimony, suggestiveness
alone does not require exclusion. See Commonwealth v. Lark, 91 A.3d 165,
168 (Pa. Super. 2014). “Suggestiveness arises when the police employ an
identification procedure that emphasizes or singles-out a suspect.” Davis, 17
A.3d at 394 (citation omitted). “A pretrial identification will not be suppressed
as violative of due process rights unless the facts demonstrate that the
identification procedure was so infected by the suggestiveness as to give rise
to a substantial likelihood of irreparable misidentification.” Commonwealth
v. Jaynes, 135 A.3d 606, 610 (Pa. Super. 2016) (citation omitted).
Here, Appellant indicates Detective Garrett Spory informed Paris Minard
that his assailant had been arrested. Spory also told Minard Appellant’s legal
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name; Minard had only known Appellant by his street name, “Tone-Jigga.”
Appellant believes that this information caused Minard to wrongly identify
Appellant as the perpetrator.
While Minard did not testify at the suppression hearing, Detective Spory
did. He stated he visited Minard in the hospital after the shooting, and Minard
told him that a man named Tone-Jigga was responsible. See N.T. Hearing,
12/14/16, at 56. Though Minard did not know Tone-Jigga’s real name, Minard
told Spory that he had been acquainted with Tone-Jigga for over twelve years
and had spoken with him many times before. See id., at 51. After Brandon
Murray identified Appellant as the shooter during the police traffic stop, Spory
went to Minard’s home to inform him of Appellant’s arrest. See id., at 57.
Spory also notified Minard of the date set for Appellant’s preliminary hearing
at that time. See id. Spory stated he did not show Minard a picture of
Appellant. See id. Spory affirmed that Minard thereafter testified at the
preliminary hearing and identified Appellant in court as the man who shot him.
See id., at 53.
Based on the foregoing, we do not believe Appellant has established that
Minard’s pretrial identification was the result of suggestiveness that would
render the identification unreliable. On the contrary, Spory testified that
Minard claimed to have had a relationship with his assailant for over twelve
years before the crime. While Spory conceded Minard only knew Appellant by
his street name, Tone-Jigga, Appellant can point to nothing in the record that
suggests Minard identified him in court based on Spory’s information. We do
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not believe Appellant has demonstrated Spory’s visit to Minard influenced his
testimony in any way, given the evidence that clearly establishes Appellant
and Minard had an acquaintanceship for many years before the incident. Thus,
we find no grounds for reversing the suppression court’s order denying
Appellant’s motion.4
In Appellant’s remaining issue, he argues the Commonwealth failed to
present sufficient evidence to sustain his conviction for criminal mischief. The
Commonwealth concedes that Appellant is entitled to relief on this claim, and
we agree.
When reviewing a challenge to the sufficiency of the evidence, we
consider whether, when viewing the evidence admitted at trial in the light
most favorable to the verdict winner, the evidence was sufficient to enable the
factfinder to find all elements of the offense established beyond a reasonable
doubt. See Commonwealth v. Herman, 924 A.2d 1231, 1233 (Pa. Super.
2007). “Any doubt about the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined circumstances.”
Commonwealth v. Sebolka, 205 A.3d 329, 337 (Pa. Super. 2019) (citation
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4 In his Pa.R.A.P. 1925(b) statement, Appellant also challenged the denial of
his motion to suppress the evidence recovered from his vehicle and cell phone,
and the pretrial identification by Murray. As his brief specifically contests the
denial of the suppression motion with regard to Minard’s identification, we find
he has abandoned the other issues on appeal. See Commonwealth v.
Heggins, 809 A.2d 908, 912 n. 2 (Pa. Super. 2002) (holding that issues
identified on appeal but not developed in appellant’s brief are waived).
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omitted). “The Commonwealth may sustain its burden by means of wholly
circumstantial evidence.” Id. (citation omitted).
“A person is guilty of criminal mischief if he intentionally damages real
or personal property of another[.]” 18 Pa.C.S.A. § 3304(a)(5).
Instantly, Appellant was charged with criminal mischief as a summary
offense. Following trial, the court deemed Appellant guilty of the offense, and
sentenced him to guilt without further punishment. In the court’s Rule 1925(a)
opinion, it states that it “may reach its finding of guilt by relying on the
combined circumstances of a particular event.” Trial Court Opinion, filed
8/21/18, at 12. However, the court declined to specify precisely which
circumstances it believes support Appellant’s conviction for criminal mischief.
Our own review of the record reveals the criminal complaint charged
Appellant with criminal mischief based on allegations that Appellant caused
damage to another victim’s vehicle as Appellant shot at Minard. See Criminal
Complaint, filed 5/13/16, at 4. During the preliminary hearing, Detective
Spory testified that this other victim claimed Appellant had shot his
windshield. See N.T. Hearing, 6/28/16, at 20.
However, at no point during trial did the Commonwealth present
evidence of a crime committed against a victim other than Minard, or evidence
of any damage to real or personal property caused by Appellant. See N.T.
Trial, 2/28/17–3/2/17. In fact, the Commonwealth conceded at the close of
trial that it failed to present any such evidence, and the court entered a
judgment of acquittal on the REAP counts related to the other, unspecified
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victims. See N.T. Trial, 3/2/17, at 198. The Commonwealth continues to
concede that it failed to present any evidence to sustain Appellant’s conviction
for criminal mischief. See Appellee’s Brief, at 9.
As we can find no evidence presented at trial to sustain Appellant’s
conviction for criminal mischief, we hold the conviction must be vacated. We
affirm Appellant’s remaining judgment of sentence.5
Judgment of sentence affirmed in part and vacated in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2019
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5 Because the court imposed a sentence of guilt without further punishment
on this conviction, vacating this conviction does not upset the sentencing
scheme, and we are not required to remand. See Commonwealth v. Lomax,
8 A.3d 1264, 1268-1269 (Pa. Super. 2010) (holding that when our disposition
does not upset overall sentencing scheme, there is no need for remand).
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