Com. v. Vernon, T. ( 2017 )

J. S25036/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TYRIK VERNON, : No. 2170 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, October 19, 2004,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0206571-2004
BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 21, 2017
Tyrik Vernon appeals the judgment of sentence in which the Court of
Common Pleas of Philadelphia County sentenced1 him to serve a sentence of
7½ to 15 years’ imprisonment for robbery along with concurrent sentences
of 2 to 4 years for attempted murder, 2-4 years for aggravated assault, and
1-2 years for firearms not to be carried without a license.2 After careful
review, we affirm.
The pertinent procedural and factual history, as recounted by the trial
court, is as follows:
1
Originally, appellant was sentenced to an aggregate term of 10½ to
21 years’ imprisonment with all sentences consecutive to one another. The
trial court subsequently amended the sentences to run concurrently.
2
18 Pa.C.S.A. §§ 3701, 2502, 2702, and 6106, respectively.
J. S25036/17
After [appellant’s] sentencing, his counsel filed
a timely notice of appeal to the Superior Court.
Direct appeal was initially dismissed on August 10,
2006 because counsel failed to file a brief.
[Appellant] then filed a pro se PCRA petition on
August 21, 2006. This was never addressed by the
court and no attorney was ever appointed.
On March 28, 2011 [appellant] filed another
PCRA petition. This one incorporated his 2006
petition. Peter A. Levin, Esquire was appointed and
he filed an amended PCRA petition on November 9,
2012. One of his allegations is that trial counsel had
been ineffective for failing to file Petitioner’s brief.
Initially, Mr. Levin’s petition was dismissed for
untimeliness without an evidentiary hearing but after
appeal and remand, an evidentiary hearing took
place and an appeal nunc pro tunc was granted
after finding that court interference had prevented
[appellant’s] 2006 PCRA timely pro se petition from
being heard.
[Appellant] has filed a Rule 1925 Statement of
Matters Complained Of and claims his conviction
should be reversed because of unreliable and/or
tainted identification. He also claims the verdict is
against the weight of evidence. . . .
....
Complainant Kenneth Crosby testified that on
October 3, 2003 he was walking on Diamond Street
in North Philadelphia on his way to a friend’s house.
At approximately 1:50 [p.m.], he saw [appellant] at
the corner of 18th and Diamond in broad daylight
and approached him on the street. Crosby asked
[appellant] if he knew “where they sell weed.” They
were approximately 10 inches apart from each other.
[Appellant] told Crosby to follow him and the two
walked together for about 5 minutes, spanning two
blocks. [Appellant] walked on Crosby’s right side,
approximately 6 inches from him. At about
2:00 [p.m.], [appellant] stopped on nearby
Page Street to make a phone call which lasted
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approximately 2 minutes. Crosby stood and waited
for [appellant] from about 2 to 3 feet away during
the phone call.
Crosby and [appellant] were standing together
on the 1500 block of Page Street when [appellant]
pushed Crosby up against a car and pressed a silver
gun against his stomach. Crosby testified he was
able to see [appellant] close-up and unobstructed.
[Appellant] demanded Crosby’s money. At first,
Crosby said that he could not give him any because
it was not his. [Appellant] then threatened to shoot
Crosby in the stomach. Crosby then gave up $100.
[Appellant] instructed Crosby to stand still and then
told him to walk away. Crosby began to run away
but several seconds later, [appellant] shot Crosby in
the back. As [appellant] fled, the victim saw him run
up Page Street and make a right.
Crosby talked to detectives at the hospital and
was later shown a photo array at a police station.
Based on his description, detectives showed Crosby
approximately 30 pictures of men on a computer.
The victim spent 10 minutes looking at pictures and
identified [appellant]. Crosby remembered a black
mark on the man’s head and [appellant’s] face.
Crosby told a detective he was sure he identified the
right person and the detective printed out a picture
of [appellant] which Crosby signed. At trial, Crosby
testified he was still sure.
Eyewitness Natasha Jenkins testified that on
October 3, 2003, she also saw and heard [appellant]
shoot Crosby on the 1500 block of Page Street.
Jenkins was in the passenger seat of a car with her
neighbor, Diane Washington returning from grocery
shopping. The car was parked on the opposite side
of the street approximately 15 feet from [appellant]
and they were about to unload the car. Jenkins
testified that she saw two men “tussling” and saw
[appellant] demanding money. She saw [appellant]
hit Crosby in the head with a gun. Seeing that a gun
was involved, Jenkins told her neighbor to close the
car door, and forget unpacking the groceries. Two
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shots were fired and Jenkins saw [appellant] run
west on Page Street. Jenkins testified that she saw
[appellant’s] face.
Jenkins talked to the police approximately an
hour after the shooting and gave a statement. She
identified [appellant] as “about 5’6”, 5’7”, braids
hanging from the back. He had on a red baseball
cap, 76’ers jacket red and blue.” Police asked her to
come to a police station to look at pictures and she
was shown approximately 50 photos but could not
make an identification that night.
On October 14, 2003[,] a detective visited
Jenkins at her home. She was shown sixteen photos
and identified a photo of [appellant] but said she
wasn’t 100% sure. At trial she testified to being
“85%-95%” sure. She testified she wasn’t certain
because the man who committed the crime had
braided hair at the time, while the man in the picture
and [appellant] at trial did not. Nevertheless,
Jenkins testified that the man in the picture had the
same face as the man whom she saw shoot Crosby.
Jenkins’ neighbor and the driver of the car,
Diana [sic] Washington, told the jury she had a clear
view of what happened and who was involved. From
about ten feet away, Washington saw two men
struggling. She told [appellant] to “get off of him.”
While Washington did not see a gun, she testified
she heard two shots go off. After the first shot,
Washington began to drive west on Page Street.
She then heard another shot. She drove around the
block, from Norris to 16th Street, and returned to
Page Street where she saw Crosby had fallen on the
street.
On the night of the shooting, Washington did
not talk to police and was not forthcoming the next
day when detectives visited her house. But ten days
later, on October 14, 2003, detectives returned to
her house and this time she took time and viewed a
group of 8 photographs. She described Crosby’s
assailant as a young man with braids, wearing a red
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hat and a red shirt with number 3. She testified his
braids hung out of his baseball cap. Washington
identified a picture of [appellant] as the doer, and
she signed the photo.
At trial, Washington testified police had not
said anything to her when they showed her the
pictures other than whether she could identify the
guy she saw.
Trial court opinion, 8/22/16 at 1-4.
On October 19, 2004, the trial court conducted a sentencing hearing.
At the commencement of the hearing, appellant’s attorney,
Jeffrey Muldawer, Esq., brought to the attention of the trial court a pro se
motion for extraordinary relief prepared by appellant in which appellant
argued that the evidence was insufficient to support a conviction and that
the verdict was against the weight of the evidence. The trial court denied
the motion.
Although the trial court imposed a sentence at the hearing with
consecutive rather than concurrent terms, the docket indicates that
sentencing was deferred until January 20, 2005. On that date, the trial
court imposed the sentence from which appellant appeals.
Before this court, appellant contends that the verdict was against the
weight of the evidence.
[T]he 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. An appellate court
cannot substitute its judgment for that of
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the finder of fact . . . thus, we may only
reverse the lower court’s verdict if it is so
contrary to the evidence as to shock
one’s sense of justice. Moreover, where
the trial court has ruled on the weight
claim below, an appellate court’s role is
not to consider the underlying question
of whether the verdict is against the
weight of the evidence, . . . rather,
appellate review is limited to whether the
trial court palpably abused its discretion
in ruling on the weight claim.
Commonwealth v. Kim, 888 A.2d 847, 851
(Pa.Super. 2005) (citations and quotations omitted).
A motion for a new trial based on a challenge to the
weight of the evidence concedes the evidence was
sufficient to support the verdict. Commonwealth v.
Davis, 799 A.2d 860, 865 (Pa.Super. 2002).
Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).
Before addressing the merits of appellant’s argument, we must
address the Commonwealth’s contention that appellant waived this issue.
The Commonwealth asserts that the issue is waived because appellant did
not file a post-sentence motion or motion for reconsideration until many
years after his sentence became final. However, appellant made the claim
concerning the weight of the evidence in his motion for extraordinary relief
before the trial court on October 19, 2004. This court is satisfied that
appellant preserved his claim. See Pa.R.Crim.P. 607(A).
Turning to the merits of the argument, appellant claims the verdict
was against the weight of the evidence because the identification evidence
was unreliable and conflicting, the witnesses made no identifications when
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they were shown photographs but later identified appellant; no lineup as to
identification was ever held, even though one was ordered at the preliminary
hearing; there was conflicting testimony by the Commonwealth witnesses as
to whether the assailant had braids; and defense witnesses testified as to
never seeing appellant with braids.
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
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).
Initially, appellant contends that the testimony of Kenneth Crosby
(“Crosby”), the victim, was unreliable for multiple reasons and the accuracy
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of his prior descriptions of his assailant is dubious. When Crosby initially
described his assailant to the police, he stated that the assailant had braided
hair that stuck out the back of his cap down his neck. (Notes of testimony,
8/25/04 at 44.) However, during trial, Crosby testified that his assailant did
not have braided hair and that he said that he did because he was “nervous;
I was in pain.” (Id. at 45.) Appellant asserts that Crosby gave an initial
description of his assailant and then recanted that description at trial to
better describe the person that he subsequently identified as his assailant,
appellant.
Appellant further charges that Crosby was able to identify appellant in
a photo array due to “a black mark on his head.” (Id. at 38.) However,
Crosby did not include the black mark in his initial description made to the
police. (Notes of testimony, 8/27/04 at 47.) Appellant asserts that Crosby
would not have been able to see this alleged black mark at the time of the
incident because it would have been covered by a cap. Appellant argues
that Crosby attempted to untruthfully rehabilitate his earlier inconsistent
description by trying to refer to another identifying characteristic of
appellant.
Appellant points out other inconsistencies in Crosby’s testimony in that
he testified that he had never seen appellant before (notes of testimony,
8/25/04 at 50), but also stated that he had seen him once or twice. (Id. at
51.) Additionally, appellant asserts that Crosby’s testimony was unreliable
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and conflicting because he was a drug-selling and drug-using runaway who
repeatedly changed his story regarding the description of appellant.
Regarding the reliability of Crosby’s identification of appellant based on
the factors set forth in Brown, Crosby certainly had the opportunity to see
his assailant as he testified that he talked to him and walked with him before
the attack, and it stands to reason that he would take note of someone who
robbed and shot him. Furthermore, Crosby testified that he was
“101 percent sure” that appellant was his assailant. (Id. at 52.) While it is
true that Crosby did describe appellant as having his hair in braids at the
time of the attack, and he did not have braids in the photograph where
Crosby identified appellant, this fact alone does not render the identification
unreliable, even though a defense witness testified he had never seen
appellant wear braids. See Commonwealth v. Maute, 485 A.2d 1138,
1144 (Pa.Super. 1984) (Evidence of a conflict in evidence is not fatal to the
Commonwealth’s case because the Commonwealth if not bound by
everything its witnesses say, and the jury can believe, all, part, or none of
the testimony.) Further, Diane Washington (“Washington”) also described
the assailant with braids. Id. at 105. Given the totality of the
circumstances, Crosby’s identification was sufficiently reliable to support the
determination that appellant was the assailant.
Appellant next contends that the identification made by another
witness, Natasha Jenkins (“Jenkins”), was also conflicting and unreliable.
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First, on the day of the incident, Jenkins could not identify the assailant
when asked to look at pictures on a computer of possible perpetrators.
However, she later identified appellant as the assailant when the police
showed her two cards that contained 16 photographs on October 14, 2003.
(Notes of testimony, 8/25/04 at 74-75.) Appellant characterizes it as
“puzzling” that Jenkins could not initially make an identification but could
11 days later. Further, Jenkins testified that she was only 85-95% sure of
her identification of appellant as the assailant. Jenkins changed her
description of the assailant from light to dark skinned. (Id. at 63, 80.)
Jenkins also initially identified the assailant as shorter than the 5’11” that
the parties stipulated was appellant’s height. (Id. at 80; 8/27/04 at 75.)
Appellant argues that Jenkins’s identification was the product of
suggestiveness, and her testimony was unreliable and conflicting.
With respect to Jenkins’s identification of appellant, she was able to
view the perpetrator at the time of the crime and at fairly close range.
Jenkins was not totally accurate in her description of appellant in terms of
his height. Though not totally certain of her identification of appellant, she
was approximately 90% certain. Although appellant asserts that the
inconsistencies in her testimony were the result of suggestiveness by the
police department, there is nothing in the record to support such a
conclusion. Once again, despite some inconsistencies, a jury could find
appellant guilty based on this testimony.
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Appellant also argues that the testimony of the third Commonwealth
witness, Washington was also unreliable and conflicting in that she did not
identify appellant until 11 days after the incident took place. She gave a
description of the assailant as having braids hanging out the back of his
baseball cap and a medium complexion. (Notes of testimony, 8/25/04 at
105.) Despite that description, Washington identified appellant from a list of
photographs even though the photo did not depict any braids. (Id. at 106.)
Appellant also argues that this identification is the product of
suggestiveness. Appellant asserts that the court in the preliminary hearing
ordered another lineup which might have alleviated these reliability and
consistency problems.
Similarly, with respect to Washington’s testimony, she witnessed the
crime or at least some of the crimes as they occurred. She testified that she
observed the incident from a close vantage point. As with Crosby’s initial
description, Washington believed that braids were hanging out from under
appellant’s cap. (Id. at 106.) Washington testified that she never told
anyone she was not completely sure of the identification of appellant. (Id.
at 107.) As with the other witnesses, the inconsistencies in the descriptions
were left to the jury to render its credibility determinations. Once again,
appellant raises the issue of suggestiveness, but there is nothing in the
record to support that conclusion. Similarly, it is unclear what a lineup
would establish.
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As the identification testimony was sufficiently reliable and was found
credible by the jury, the verdict is not so contrary to the evidence as to
shock the conscience. Based on the record before this court, we do not find
that the trial court abused its discretion when it declined to grant appellant’s
post-trial motion concerning the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2017
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