Com. v. Woodson, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
STEVEN WOODSON, :
:
Appellant. : No. 2419 EDA 2017
Appeal from the Judgment of Sentence, June 15, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0001287-2015.
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 10, 2019
Steven Woodson appeals from an aggregate judgment of sentence of
40 to 80 years’ incarceration, after a jury convicted him of attempted rape, 1
aggravated assault,2 involuntary deviate sexual intercourse,3 robbery,4
aggravated indecent assault,5 and sexual assault.6 Woodson asserts that (1)
the Philadelphia Police Department violated his rights of privacy under both
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1 18 Pa.C.S.A. § 901; 18 Pa.C.S.A. § 3121.
2 18 Pa.C.S.A. § 2705.
3 18 Pa.C.S.A. § 3123.
4 18 Pa.C.S.A. § 3701.
5 18 Pa.C.S.A. § 3125.
6 18 Pa.C.S.A. § 3124.1.
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the Constitution of the United States and the Constitution of the
Commonwealth of Pennsylvania, (2) the trial court improperly instructed the
jury regarding identity testimony, and (3) his sentence is excessive. For the
reasons below, we affirm.
On New Year’s Day 2015, a woman was walking through an open-air
parking garage at around 11:00 am. Upon exiting an elevator on one of its
higher levels, she encountered Woodson, a total stranger, who greeted her
with a hello.
Once her back was turned, Woodson attacked. He covered her mouth
and pressed into her back something that felt like a gun. Woodson choked
and beat her, to the point that she feared he was going to kill her. She passed
out but survived.
The woman regained consciousness while Woodson was still robbing
her. Unsurprisingly, she suffered severe pain. She testified, “I remember a
gust of air filling my lungs, and I remember feeling vomit and blood at the top
of my throat,” describing it as a dreamlike state. N.T., 3/2/17, at 12-13.
The woman found herself facedown, between parked cars. She looked
over and saw Woodson rummaging through her purse. When she looked up
at Woodson’s face, he became enraged and resumed savagely beating her.
He grabbed her, dragged the woman in front of the parked cars, and pulled
clumps of hair from her scalp. He threatened “that he was going to make sure
she couldn’t see.” Trial Court Opinion, 10/2/17, at 2.
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Next, Woodson told her to strip. She begged him not to rape her. He
sexually assaulted her, vaginally and anally.
Fortunately, Angela and Eric Wilson, a married couple, happened to be
driving through that parking garage. As their car passed, the woman escaped
Woodson’s grasp and ran, naked, into their car.
Woodson fled, and Mr. Wilson gave chase. Mrs. Wilson and the woman
waited in the car and called 911.
Dispatch radioed for all officers to be on the lookout for a six-foot-tall,
black male, wearing blue jeans, white sneakers, a black jacket, and a black
hat with an orange stripe, who was heading northbound on 17 th Street. Two
or three minutes later, Officer Frank Binns saw Woodson, a six-foot-tall,
African-American, walking north on 17th Street, wearing blue jeans and white
sneakers. But he had no coat or hat, which was particularly odd, given that
it was a chilly January morning.
Suspicious, Officer Binns stopped Woodson for questioning. The suspect
couldn’t get his story straight. First, he said he was coming from a nearby
hospital. Then, he changed his story; he was going to it. Plus, Woodson had
no identification and provided the police with two fake names. While searching
their database for his aliases, the officers received additional information by
radio that the assailant had a “scruffy beard.” N.T., 3/1/17, at 12. Woodson
had matching facial hair. Moreover, investigators soon recovered the black
jacket and black-and-orange hat, both abandoned behind some shrubbery,
about 25 feet away.
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Next, police brought Eric Wilson to see if he could identify Woodson as
the attacker. Mr. Wilson was “not sure.” N.T., 3/1/17, 14, 24. They also
brought the woman, now riding in a squad car, down and asked her to identify
Woodson. She refused to look at him, because of her physical and emotional
pain. Instead, the woman insisted the officers take her to the hospital. They
obliged.
Officer Binns arrested Woodson on suspicion of the assault, attempted
rape, and robbery and to identify him accurately. Before leaving the scene,
the policeman searched Woodson’s person and removed two credit cards. He
placed them into an opaque, plastic bag.
After Woodson arrived at the police station, investigators determined
his true name. Also, Special Victims’ Unit (“SVU”) Detective Brian Meissler
opened the plastic bag to see who owned the credit cards. One of them bore
the woman’s name.
About a month later, after she was out of the hospital, the woman went
to the jail for a line-up. She immediately identified Woodson as her attacker.
Before trial, Woodson moved to suppress the woman’s credit card. A
suppression hearing occurred; the court, finding no constitutional violation,
admitted the woman’s credit card into evidence; and the jury convicted.
The trial court imposed an aggregate sentence of 40 to 80 years of
incarceration and denied a post-sentence motion. Woodson timely appealed.
He raises three issues in his brief. First, he claims the trial court abused
its discretion by not giving a jury instruction on eyewitness identification under
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Commonwealth v. Kloiber, 106 A.2d 850 (Pa. 1954). See Woodson’s Brief
at 6. Second, Woodson asserts Detective Meissler violated his constitutional
rights when he opened the opaque, plastic bag to read the names on the credit
cards that the police had taken at the time of arrest. Id. Third, he asks this
Court to review the discretionary aspects of the sentence that the trial judge
imposed; he believes that sentence is excessive. Id. at 7. We shall address
his second issue first, which will render his first issue moot. We will deny the
request to review the discretionary aspects of his sentence.
Woodson believes the Philadelphia Police Department lacked probable
cause to take him into custody, and, therefore, Detective Meissler had no
constitutional authority to open the opaque, plastic bag and read the names
on the two credit cards. Id. at 48. He claims that he was in a custody from
the moment Officer Binns first approached him on 17th Street, but the trial
court only found reasonable suspicion at that juncture – a constitutionally
insufficient quantum of suspicion to justify a custodial detention. Id. In the
alternative, he argues that, if we find the initial interaction between Officer
Binns and him to have been an investigative stop, then subsequent events
dispelled any prior reasonable suspicion that he was the attempted rapist. Id.
Thus, under both scenarios, Woodson asserts that the police had no grounds
to take him to their station house, seize the two credit cards, and read the
names on them.
The Commonwealth thoroughly rebuts Woodson’s theory in its brief:
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Following the denial of a suppression motion, a reviewing
court must consider the prosecution evidence at the
suppression hearing, and so much the evidence for the
defense, as when fairly read in the context of the record as
a whole, remains uncontradicted. Commonwealth v.
Smith, 836 A.2d 5, 10 (Pa. 2003). The record must be
viewed in the light most favorable to the Commonwealth as
the prevailing party. Commonwealth v. Rickabaugh, 706
A.2d 826, 833 (Pa. Super. 1997). Where the suppression
court’s factual findings are supported by the record, a
reviewing court may reverse only if the suppression court’s
legal conclusions are erroneous and there is no other
legitimate basis for admitting the challenged evidence.
Commonwealth v. Laatsch, 661 A.2d 1365, 1367 (Pa.
1995). Under this standard, [Woodson] cannot prevail.
. . . After [Woodson] was taken into custody, officers placed
credit cards that were recovered from his person inside a
storage bag for safekeeping. That bag was later opened by
a detective after [Woodson] was identified as wanted on an
outstanding bench warrant. Obviously, [Woodson] had no
privacy interest in a bag that the police themselves had
supplied. Thus, [his] challenge to the detective’s act of
removing the bag is fundamentally misguided. Cf.
Commonwealth v. Hall, 554 A.2d 919, 921-22 (Pa. Super.
1989) (no warrant is necessary when, at the police station,
officers inspect items that were previously seized at the time
of arrest) . . .
Seizures are classified as investigative detentions (which
require only a reasonable suspicion that criminal activity is
afoot) and custodial detentions (which require probable
cause). E.g., Commonwealth v. Bennett, 827 A.2d 469,
477 (Pa. Super. 2003). Here, upon initially encountering
[Woodson], the police acted appropriately by detaining him
for a brief period in order to conduct an investigation.
Moreover, prior to taking him into custody, they obtained
additional information that supplied the requisite probable
cause to arrest him.
Officer Frank Binns received a radio bulletin based on
information from a named civilian witness. It reported a
rape by a six foot tall black male in blue jeans and white
sneakers with a black jacket and a black hat with an orange
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stripe. It also specified that the perpetrator was fleeing
northbound from Callowhill Street, on 17th Street.
Within three minutes, Officer Binns observed [Woodson]
proceeding northbound a short distance away on 17th
Street. He was the only person on the street and fit the
broadcast description – except that he was not wearing a
coat or hat. The absence of outer clothing was particularly
noteworthy given that it was a very cold day in January.
Thus, the officers could not ignore that defendant may have
abandoned his outer wear while on the run in an effort to
avoid detection. See In the Interest of D.M., 727 A.2d
556, 558 (Pa. 1999) (upholding stop based on general
description close to time and place of crime reported by
civilian witness); Commonwealth v. Sheridan, 437 A.2d
44, 46 (Pa. Super. 1981) (upholding stop although suspect
was not wearing a hat or the same type of coat reported in
a radio bulletin).
What happened next only increased the officer's concern.
[Woodson] first told the police that he was coming from
Hahnemann Hospital. Then he switched gears and said he
was going to Hahnemann Hopital. When asked for
identification, [Woodson] (who was in his thirties) claimed
that he had “never had an ID as an adult” and provided two
different inconsistent names. Meanwhile, police received a
supplemental radio report that the perpetrator had a
“scruffy beard;” sure enough, defendant had a scruffy beard
as well. Additionally, they learned that the missing black
jacket and black hat with an orange stripe had been
recovered approximately 25 feet from where defendant had
been sighted.
“[R]esponses by the suspect which the officer knows to
be false, or which are implausible, conflicting, evasive, or
unresponsive may well constitute probable cause when
considered together with [the officer’s] prior suspicions.” 3
W. LaFave, Search and Seizure, § 3.6(f) at 449-50 (5th ed.
2012) (footnotes with case citations omitted). That was the
case here. See Commonwealth v. Norris, 499 A.2d 644,
646 (Pa. Super. 1985) (combination of furtive conduct and
resemblance to description of perpetrator triggered
probable cause). See generally Commonwealth v.
Thompson, 985 A.2d 928, 940-41 (Pa. 2009) (probable
cause deals with the factual and practical considerations of
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everyday life upon which reasonable and prudent men act);
Commonwealth v. Quiles, 619 A.2d 291, 298 (Pa. Super.
1993) (en banc) (“Probable cause exists when criminality is
one reasonable inference; it need not be the only, or even
the most likely, inference”).
[Woodson] emphasizes that an eyewitness – apparently,
Good Samaritan, Eric Wilson – failed to identify him upon
being brought to the scene. That witness simply stated,
however, that he was “not sure” whether or not defendant
was the person who had fled after assaulting [the survivor].
This remark was in no way exculpatory; it did not negate
the probable cause that had arisen from other factors.
[Woodson] also notes that Officer Binns referred to
taking him into custody to find out “who he was.” The officer
clarified, however, that he believed he could be “the doer
for the rape in progress.” In any event, the legality of a
search or seizure is measured by an objective test and does
not depend on the officer's subjective motivations or state
of mind. Commonwealth v. Foglia, 979 A.2d 357, 362
(Pa. Super. 2009) (en banc).
In sum, the totality of the circumstances supplied
probable cause to believe that defendant was implicated in
the assault. Therefore, he could be arrested and searched
incident to arrest. Commonwealth v. Rickabaugh, 706
A.2d at 836. It follows that the credit cards on his person –
one of which bore the [survivor’s] name – were lawfully
recovered.7
Commonwealth’s Brief at 10-14 (emphasis and footnote in original; citations
to the record omitted).
We agree with the Commonwealth’s well-reasoned arguments above
and adopt them as the analysis of this Court. Thus, we affirm the trial court’s
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7 Moreover, after apprehending [Woodson], police learned that he had an
outstanding bench warrant for indecent exposure. N.T., 3/1/17, 30. See
Utah v. Strieff, ___ U.S. ___, 136 S.Ct. 2056 (2016) (taint from illegal
seizure was too attenuated to support the exclusion of evidence once police
learned that the suspect had an outstanding arrest warrant) . . . .
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order denying suppression of the survivor’s credit card, which Woodson had
in his possession only a few minutes after the crimes were committed.
Because the Commonwealth showed that damning evidence to the jury
on the last day of trial, we need not reach the merits of Woodson’s first
appellate issue – i.e., whether the trial court should have given the Koilber
instruction he requested. Even if we were to agree with Woodson, the error
was harmless, because his possession of the survivor’s credit card, standing
alone, clearly identified him as the perpetrator.
The only explanation for him having the survivor’s credit card is obvious:
he is guilty beyond any reasonable doubt. The Commonwealth could have
tried and won this case without the survivor identifying Woodson. Therefore,
we decline to decide his first claim of error, because it would not merit a new
trial, regardless of how we might rule. We thus dismiss Woodson’s first issue
as moot.
Lastly, we deny Woodson’s application for allowance of appellate review
of the discretionary aspects of sentencing, because he has failed to raise a
substantial question.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth
v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An
appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying
a four-part test: (1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant's brief has a fatal defect,
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Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006).
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). In this
instance, there is no question that Woodson has satisfied prongs one through
three of the test for invoking our appellate jurisdiction. We therefore proceed
directly to the fourth prong: whether Woodson has presented a substantial
question.
Woodson argues that the trial court imposed a “de facto life sentence”
that “is excessive under the circumstances. The sentence imposed in this
matter is thus contrary to the fundamental norms which underlie the
sentencing process, and inconsistent with the Sentencing Code.” Woodson’s
Brief at 55. However, Woodson’s statements in this regard are conclusory and
fail to explain what portion of the Sentencing Code with which the sentence
was inconsistent or how it ran contrary to sentencing norms.
He goes on to say that the “failure to consider mitigating factors, failure
to address the rehabilitative needs of Mr. Woodson, and fact that the
sentences are ordered to be served consecutively despite the fact that they
occurred simultaneously, raises a substantial question that this sentence
which will incarcerate Mr. Woodson for a the remainder of this natural life (i.e.,
until age 135) is a deviation from sentencing norms.” Id. He cites no case
law to support those statements.
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This Court has previously held that such unsubstantiated protestations
are not substantial questions:
It is settled that this Court does not accept bald
assertions of sentencing errors. See Commonwealth v.
Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). When
we examine an appellant’s Rule 2119(f) statement to
determine whether a substantial question exists, “[o]ur
inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which
are necessary only to decide the appeal on the merits.”
Commonwealth v. Ahmad, 961 A.2d 884, 886–87 (Pa.
Super. 2008) (quoting Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005)). A Rule 2119(f) statement
is inadequate when it “contains incantations of statutory
provisions and pronouncements of conclusions of law[.]”
Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa.
Super. 2005) (citation omitted).
Here, Appellant asserts in his Rule 2119(f) statement:
[T]he [trial] court imposed both aggravated range
sentences and standard guideline range sentences. It
ordered that each sentence, twelve in total, run
consecutive to one another. As a result, the aggregate
minimum judgment of sentence was over eleven
years. At the time the trial court imposed its amended
sentencing order, [Appellant] was seventy years of
age. The trial court's sentence is in effect a de facto
life sentence on an individual who cannot pose any
threat to society due to both the loss of his license and
his age.
Appellant’s Brief at 27. Based on Appellant’s 2119(f)
statement, we conclude that he has failed to raise a
substantial question.
Appellant’s excessiveness claim is premised on his
argument that the trial court imposed consecutive
sentences and failed to consider his mitigating
circumstances, such as his age and loss of license.
Specifically, Appellant claims that, because the trial court
ordered his sentences to run consecutively, his aggregate
sentence of 133 to 266 months in prison was excessive. We
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consistently have recognized that excessiveness claims
premised on imposition of consecutive sentences do not
raise a substantial question for our review. See
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa.
Super. 2015) (en banc) (stating, “[a] court’s exercise of
discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial
question[.]”), appeal denied, 633 Pa. 774, 126 A.3d 1282(2015); see also Commonwealth v. Ahmad, 961 A.2d
884, 887 n.7 (Pa. Super. 2008); Commonwealth v. Pass,
914 A.2d 442, 446–47 (Pa. Super. 2006). Additionally,
Appellant claims that the trial court failed to consider his
mitigating circumstances, specifically his “advanced” age of
over seventy years. Appellant’s Brief at 50. In
Commonwealth v. Eline, 940 A.2d 421 (Pa. Super. 2007),
we concluded that an appellant’s argument that “the trial
court failed to give adequate consideration to [his] poor
health and advanced age” in fashioning his sentence does
not raise a substantial question. Eline, 940 A.2d at 435. In
so concluding, we explained that “[t]his court has held on
numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a
substantial question for our review.” Id. (citation omitted);
see Commonwealth v. Disalvo, 70 A.3d 900 (Pa. Super.
2013) (citations omitted) (“This Court has held on numerous
occasions that a claim of inadequate consideration of
mitigating factors does not raise a substantial question for
our review.”); see also Commonwealth v. Berry, 785
A.2d 994 (Pa. Super. 2001) (explaining allegation that
sentencing court failed to consider certain mitigating factor
generally does not raise a substantial question);
Commonwealth v. Cruz–Centeno, 447 Pa.Super. 98, 668
A.2d 536, 545 (1995) (“[a]n allegation that a sentencing
[judge] ‘failed to consider’ or ‘did not adequately consider’
certain factors does not raise a substantial question that the
sentence was inappropriate,”), appeal denied, 544 Pa.
653, 676 A.2d 1195 (1996); Commonwealth v. Bershad,
693 A.2d 1303, 1309 (Pa. Super. 1997) (finding absence of
substantial question where appellant argued the trial court
failed to adequately consider mitigating factors and to
impose an individualized sentence). Consistent with the
foregoing cases, we conclude that Appellant failed to raise a
substantial question with respect to his excessiveness claim
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premised on the imposition of consecutive sentences and
inadequate consideration of mitigating factors.
Commonwealth v. Radecki, 180 A.3d 441, 468-469 (Pa. Super. 2018).
Applying Radecki, we decline to assert appellate jurisdiction over the
discretionary aspects of the sentence, because Woodson’s Pa.R.A.P. 2119(f)
statement does not demonstrate a substantial question for our review. Thus,
we will not address the merits of this third and final claim of error.
Judgment of sentence affirmed.
Judge Bowes concurs in the result.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/19
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