Com. v. Dyer, L. ( 2016 )


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  • J. S35011/16
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
    :            PENNSYLVANIA
    v.                     :
    :
    LORENZO DYER,                               :         No. 1544 EDA 2015
    :
    Appellant         :
    Appeal from the Judgment of Sentence, April 17, 2015,
    in the Court of Common Pleas of Lehigh County
    Criminal Division at No. CP-39-CR-0002639-2014
    BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MAY 06, 2016
    Lorenzo Dyer appeals from the judgment of sentence entered by the
    Court of Common Pleas of Lehigh County on April 17, 2015, following his
    conviction in a jury trial of robbery and criminal conspiracy to commit
    robbery.1 The trial court sentenced appellant to a term of imprisonment of
    10 to 20 years on each count to be served concurrently. We affirm.
    The trial court set forth the following:
    [O]n May 22, 2014, at approximately 11:45 P.M.,
    twenty-five    (25)   year    old   Kenneth     Hunt,
    Jr.[Footnote 3] was crossing the Eighth Street Bridge
    in Allentown, Lehigh County, Pennsylvania, on his
    way to his residence located on the south side of
    Allentown.    When the victim reached about the
    halfway mark across the bridge, he was approached
    by four (4) younger black males. The four (4) men
    formed a semi-circle around Mr. Hunt and effectively
    1
    18 Pa.C.S.A. § 3701(a)(1)(ii) and 18 Pa.C.S.A. § 903(a)(1), respectively.
    J. S35011/16
    surrounded him.[Footnote 4] Mr. Hunt noted that
    there was an actor, who stood approximately 5’6” to
    5’7” in height who had his hair cut close to his head,
    to his left who brandished a silver barreled handgun
    and pointed it at his head. This male actor, later
    identified as [appellant], stood approximately two
    (2) feet from Mr. Hunt. In addition, the three (3)
    other males stood to Mr. Hunt’s right-hand side.
    [Footnote 3] Kenneth Hunt moved to the
    Allentown area from the Poconos a
    couple of years ago in search of different
    employment.      Mr. Hunt works as a
    manager at Men’s [Wearhouse].
    [Footnote 4] The tallest male was
    approximately 6’1” to 6’2” and he put his
    hands on the victim. This tall male was
    not the actor who possessed the firearm.
    One of the perpetrators demanded that
    Mr. Hunt “give him all his things.”         Mr. Hunt
    complied.    The actors took his HTC-One cellular
    phone, headphones and his wallet containing such
    items as his bank cards, identification, and his social
    security card. One of the males then punched him in
    the face, splitting his lip. When the victim’s head
    turned, he saw sneakers with lime green eyelets on
    them. The four (4) black males then left the scene,
    heading north on Eighth Street.         As they were
    leaving, one of the males stated something along the
    lines of, “Don’t snitch because we know where you
    live.”
    Immediately following this incident, Mr. Hunt
    went to his friend’s house that was located close to
    the scene. Upon his arrival at his friend’s residence,
    Mr. Hunt’s friend called 911 to report the incident,
    and also immediately began to track his cellular
    phone through a GPS tracker on his Google
    account.[Footnote 5]
    [Footnote 5] The victim’s cellular
    telephone was locked and could not be
    -2-
    J. S35011/16
    turned off. Consequently, it was able to
    be tracked through a GPS tracker.
    Officer Nicholas Lerch of the Allentown Police
    Department received a call from the communication
    center at approximately 11:45 P.M. with regard to an
    armed robbery of a pedestrian on the Eighth Street
    Bridge. The communication center indicated that
    they were looking for a group of four (4) to five (5)
    black males wearing dark clothing.          One was
    reported to have a handgun.               Additionally,
    Officer Lerch was informed that the victim’s cell
    phone was being traced to the area of 13th and
    Turner      Streets,    Allentown,  Lehigh    County,
    Pennsylvania.      Officer Lerch responded to said
    location at about 12:00 midnight.
    Officer Robert Carbaugh and Officer Andrew
    Moll of the Allentown Police Department were the
    first to arrive in the area of 13th and Turner Streets.
    They noted four (4) black males who matched the
    description provided by the communication center of
    the perpetrators of the earlier armed robbery. The
    males were huddled together with their heads down
    behind a red pick-up truck parked in the parking lot
    of the repair garage located at the corner of 13th and
    Turner Streets.[Footnote 6]             Upon viewing
    Officer Moll exit his police cruiser and approach
    them, the group of four (4) black males dispersed in
    different directions. Officer Moll grabbed the closest
    of the four (4) males (later identified as Daiquan
    Tracy) and immediately checked him for weapons.
    He then radioed the other officers to inform them of
    the situation.
    [Footnote 6] The vehicle was parked
    facing northbound, not in an allotted
    parking spot. The parking lot was very
    full at the time that night.
    In addition, both Officer Moll and
    Officer Carbaugh identified [appellant] as
    one of the four men that they observed
    that evening.
    -3-
    J. S35011/16
    One of the black males, later identified as
    [appellant], and who was wearing a black Champion
    hoody, a pair of navy blue Adidas wind pants and
    light grey Nike Air Max sneakers with reflective
    fluorescent green on them, crossed Turner Street
    and proceeded south on 13th Street.[Footnote 7]
    Officer Lerch approached [appellant] cautiously at
    the northeast corner of 13th and Turner Streets, as
    [appellant] had his left hand in his hoody.
    Officer Lerch instructed [appellant] to remove his
    hands and informed him that he was being stopped
    because he matched the description of a perpetrator
    in an armed robbery that took place minutes earlier.
    Officer Lerch patted [appellant] down for officer
    safety and inquired if he was involved with the other
    males across the street. [Appellant] stated that he
    did not know the other men. While Officer Lerch was
    speaking with [appellant], he received a radio
    transmission from Officer Steven James that the
    victim’s stolen cell phone was located in one (1) of
    the [males’] pockets.[Footnote 8]      Consequently,
    [appellant] was placed in investigative detention.
    Officer Lerch remained with [appellant].
    [Footnote 7] The victim explicitly
    remembered       the    reflective  green
    sneakers that night as being worn by one
    of the actors on the Eighth Street Bridge.
    [Footnote 8] In addition, Officer Moll
    radioed that he had found a handgun and
    the victim’s possessions.
    Ultimately,    all   four   (4)    males   were
    apprehended within a half block of each other.
    Specifically, Alomar Wee-Ellis was detained by
    Officer Steven James; and Javard Lane was detained
    by Officer Robert Carbaugh.            Of note, the
    apprehension      of    these   individuals   occurred
    approximately fifteen (15) to twenty (20) minutes
    after the robbery and was approximately 1.1 miles
    from the initial crime scene on the Eighth Street
    Bridge.
    -4-
    J. S35011/16
    Officer Moll searched the premises of the
    garage repair lot in the area of where he observed
    the four (4) suspects huddled together by the red
    pick-up truck. In the bed of the red pick-up truck,
    Officer Moll located, inter alia, the victim’s bank
    cards, his identification card, and his social security
    card. In addition, Officer Carbaugh located a silver
    .380 handgun with five (5) rounds in it under the red
    pick-up truck.
    Meanwhile, Officer Yamil Castillo arrived at the
    residence of the victim’s friend located in the
    800 block of South Hall Street. At that time, the
    victim provided Officer Castillo with a description of
    the suspects.      Soon thereafter, Officer Castillo
    requested that the victim accompany him to a
    location to potentially identify suspects that were
    being detained by the Allentown Police.              He
    th
    transported Mr. Hunt to the area of 13 and Turner
    Streets, Allentown, Lehigh County, Pennsylvania.
    While being transported to the area, Officer Castillo
    informed Mr. Hunt that there were males being
    detained by the Allentown Police Department who
    were found with his cell phone[Footnote 9] and his
    personal effects in their possession.
    [Footnote 9] While the four (4) suspects
    were being detained, Officer Castillo had
    the victim call his cell phone and the
    telephone that was in the possession of
    these individuals began to ring.
    At approximately 12:05 A.M., when the victim
    arrived at the location where the police officers were
    detaining the subjects, he was able to confidently
    identify the black male who pointed a gun at him
    about twenty (20) minutes earlier that evening. This
    male was [appellant].           Mr. Hunt based his
    identification on the [appellant’s] height and short
    haircut. All four (4) men were separated from each
    other, handcuffed, and in the presence of the police
    at the time of the identification.
    -5-
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    At the time of trial, the victim was unable to
    provide an in-court identification, due to the passage
    of approximately ten (10) months.
    Trial court opinion, 6/18/15 at 3-7 (trial exhibit citations omitted).
    The record reflects that prior to trial, appellant filed an omnibus
    pretrial motion seeking to suppress the victim’s on-scene identification as
    unduly suggestive. A suppression hearing took place on October 14, 2014.
    During the hearing, the victim testified as to the circumstances surrounding
    his on-scene identification but was unable to positively identify the suspect
    at the hearing due to the passage of time. (Notes of testimony, 10/14/14 at
    12-13.) Subsequently, the trial court found that based on the totality of the
    circumstances, the victim’s identification was reliable and, therefore, denied
    the motion to suppress.
    Appellant presents the following issue for our review:
    Whether the lower court abused its discretion, erred
    as a matter of law and violated [a]ppellant’s due
    process rights under the constitutions of the United
    States and the Commonwealth of Pennsylvania in
    denying his motion to suppress the victim’s out-of-
    court identification where the initial confrontation
    was brief and at night, the identification was badly
    flawed because, inter alia, the police told the victim
    prior to the identification that they believed that the
    individuals who had been detained were, in fact, the
    individuals involved in the crime and he had to
    identify him; and there was no independent basis to
    ameliorate the tainted identification?
    Appellant’s brief at 4.
    -6-
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    Our standard of review for challenges to the denial of a suppression
    motion is as follows:
    [We are] limited to determining whether the
    suppression court’s factual findings are supported by
    the record and whether the legal conclusions drawn
    from those facts are correct.           Because the
    Commonwealth prevailed before the suppression
    court, we may consider only the evidence of the
    Commonwealth and so much of the evidence for the
    defense as remains uncontradicted when read in the
    context of the record as a whole.          Where the
    suppression court’s factual findings are supported by
    the record, we are bound by these findings and may
    reverse only if the court’s legal conclusions are
    erroneous.     Where . . . the appeal of the
    determination of the suppression court turns on
    allegations of legal error, the suppression court’s
    legal conclusions are not binding on an appellate
    court, whose duty it is to determine if the
    suppression court properly applied the law to the
    facts. Thus, the conclusions of law of the courts
    below are subject to our plenary review.
    Commonwealth v. McAdoo, 
    46 A.3d 781
    , 783-784 (Pa.Super. 2012),
    appeal denied, 
    65 A.3d 413
     (Pa. 2013) (citations omitted).
    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
    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’ [sic] to view the perpetrator at the time
    -7-
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    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.
    Commonwealth v. Brown, 
    23 A.3d 544
    , 558 (Pa.Super. 2011) (en banc)
    (internal citations and quotation marks omitted).
    Here, appellant complains that the trial court erred in denying his
    motion to suppress because, based on the totality of the circumstances, the
    victim’s on-scene identification was unreliable for the following reasons:
    (1) the identification was unduly suggestive because (a) the victim was
    informed by police prior to the identification that they had detained the
    individuals who were involved in the crime, and (b) the victim identified
    appellant while appellant was under visible police detention; (2) the crime
    was committed when it was dark; and (3) the victim was unable to identify
    appellant in subsequent court proceedings.
    Following a careful review of the record, and contrary to appellant’s
    assertions, we find that the record supports the trial court’s factual findings
    and the legal conclusions drawn from those facts. The trial court found:
    [T]he on-the-scene identification increased the
    reliability of the identification as a result of the short
    duration between the commission of the alleged
    crimes and the identification.         According to the
    evidence, the incident occurred at approximately
    -8-
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    11:45 P.M. The victim made the identification at
    approximately 12:05 A.M. Consequently, clearly less
    than a half hour had elapsed between the occurrence
    of the event and the on-the-scene identification.
    Additionally, the victim had sufficient time to view
    [appellant’s] face that was not covered, as he stood
    approximately two (2) feet from [appellant] while he
    brandished a handgun on the Eighth Street Bridge.
    The victim testified that the incident took
    approximately five (5) to ten (10) minutes to unfold.
    Furthermore, the victim was confident and certain
    that [appellant] was the culprit who wielded the
    handgun at his face. The record was void of any
    special element of unfairness that would give rise to
    an irreparable likelihood of misidentification by the
    victim.    To the contrary, the totality of the
    circumstances surrounding the victim’s identification
    led this Court to find that the identification was
    completely reliable.
    Trial court opinion, 6/18/15 at 13-14.
    Indeed, the linchpin in assessing the admissibility of an identification is
    reliability.   McElrath v. Commonwealth, 
    592 A.2d 740
    , 743 (Pa.Super.
    1991) (citations omitted). Here, the record reflects that the victim identified
    appellant approximately 20 minutes after appellant stood 2 feet in front of
    the victim for 5 to 10 minutes. Additionally, the victim testified that he was
    “confident” that he had identified the correct person that held a gun to his
    head. (Notes of testimony, 10/14/14 at 12.) Despite appellant’s claim, the
    reliability of the victim’s identification is not outweighed by undue suggestion
    based on police remarks made to the victim about the appellant prior to the
    identification and when the victim identified appellant while appellant was
    under visible police detention.     See Commonwealth v. Moye, 836 A.2d
    -9-
    J. S35011/16
    973, 977-978 (Pa.Super. 2003), appeal denied, 
    851 A.2d 142
     (Pa. 2004)
    (holding that the reliability of the victim’s identification of defendant made
    after the victim observed defendant and unhesitatingly identified him in very
    close temporal proximity to the commission of the crime was not outweighed
    by police remarks made to the victim about defendant prior to the
    identification and when the victim identified defendant while defendant sat in
    a police van). Consequently, no special element of unfairness exists so as to
    give rise to an irreparable likelihood of misidentification.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/6/2016
    - 10 -
    

Document Info

Docket Number: 1544 EDA 2015

Filed Date: 5/6/2016

Precedential Status: Precedential

Modified Date: 5/7/2016