Com. v. Brown, G.

J-S39006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GENE BROWN,
Appellant No. 788 WDA 2016
Appeal from the Judgment of Sentence Entered February 17, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000981-2015
BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 1, 2017
Appellant, Gene Brown, appeals from the judgment of sentence of 3½
to 7 years’ incarceration, followed by 5 years’ probation, imposed after he
was convicted, following a non-jury trial, of robbery (threat of serious bodily
injury), 18 Pa.C.S. § 3701(a)(1)(ii), and conspiracy to commit robbery, 18
Pa.C.S. § 903(a)(1). After careful review, we affirm.
The facts of this case can be summarized as follows. At approximately
10 p.m. on December 14, 2014, Andrew Latterner, a white male, was
smoking a cigarette at the intersection of Iowa and Bryn Mawr Streets in the
Hill District Section of the City of Pittsburgh. N.T. Trial, 11/16/15, at 8. As
he smoked, Latterner was approached by a group of two men and one
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*
Retired Senior Judge assigned to the Superior Court.
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female, all African-American, who encircled Latterner. Id. at 9, 12. One of
the men, identified at trial by Latterner as Appellant, stood in front of
Latterner and pulled out a rifle-type gun, which he pointed at Latterner’s
chest. Id. at 12, 14, 14. When Latterner raised his arms, Appellant
directed the other male to check Latterner’s pockets. Id. at 12. Appellant
then asked Latterner if he had a car, and Latterner replied that he did not.
Id. at 14. Appellant also asked if Latterner listened to music, and Latterner
told him that his cell phone - on which he would have listened to music -
was at his home. Id. Ultimately, Appellant and his cohorts took $40 from
Latterner’s wallet and fled. Id. at 15.
Latterner testified that during the two-minute robbery, he was looking
at Appellant’s face as Appellant talked to him. Id. at 16, 17. Latterner
explained that Appellant was not wearing a mask, and he could see
Appellant’s face, even though Appellant had the hood of his sweatshirt up.
Id. at 16. He also stated that the street was lit by a street light and
“ambient light from the houses around [him].” Id. at 17.
After the robbery, Latterner called the police, who responded to the
scene and searched the area, but were unable to locate Appellant and his
cohorts. Id. at 18, 32. Latterner then traveled to Minnesota for several
weeks. Id. at 18-19. When he returned, he met with police officers on
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January 6, 2015. Id. at 19, 20.1 The officers showed Latterner a
photographic array, and told him it “might contain a suspect, [or] it might
not.” Id. at 19. After examining the photographs in the array for
approximately one minute so he could “recall the details in [his] brain” and
not “make any mistakes[,]” id. at 27, Latterner circled Appellant’s picture
because he remembered Appellant’s face, id. at 21, 28. Latterner also
identified Appellant as one of the robbers at Appellant’s preliminary hearing,
and he again identified him as the gun-wielding robber at trial. Id. at 11,
22.
The Commonwealth also introduced into evidence a prison telephone
recording of a January 16, 2015 conversation between Appellant and his
grandmother. Id. at 43. That conversation, in its entirety, was as follows:
[Appellant]: I need Naya’s alibi, but the phone had hung up on
me.
[Grandmother]: What Naya’s alibi Gene?
[Appellant]: So that she could say I was with her on the 14th.
[Grandmother]: Was you with her?
[Appellant]: No.
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1
Appellant’s picture was included in that photographic array because he was
stopped by police in the area of another robbery on December 27, 2014, and
officers observed that he “fit the description of the [perpetrator of the]
robbery that occurred to Andrew Latterner on December 14 of 2014. And
[Appellant] lives near where [the Latterner] robbery occurred.” Id. at 36,
37. Appellant was not arrested or charged in relation to the December 27,
2014 robbery. Id. at 37.
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[Grandmother]: He don’t know that they listen to every damn
thing he says. Gene, whatever you talk about they can [YOU
HAVE THIRTY SECONDS REMAINING]
[Appellant]: Alright, Grandma.
See Supplemental Transcript (filed with this Court on 3/20/17).
After the Commonwealth rested its case, Appellant called one witness,
Dr. Jonathan Vallano, who testified as an expert on the reliability of
eyewitness identification. N.T. Trial at 49, 51. Dr. Vallano testified that
there are certain variables that can decrease the accuracy of eyewitness
identification. In this case, some of the variables discussed by the doctor
were present, such as the “low levels of illumination” because the robbery
occurred at night, id. at 54; the presence of a weapon, which may have
drawn Latterner’s attention away from the robber’s face and caused him fear
or stress that impacted his focus, id. at 54-55, 56; Latterner’s making a
cross-racial identification, id. at 55; and the fact that Latterner’s first
identification of the robbery from a photographic array was made three
weeks after the robbery, id. at 55-56.
At the close of the trial, the court found Appellant guilty of robbery and
conspiracy. On February 17, 2016, the court sentenced him to the
aggregate term stated supra. Appellant filed a timely post-sentence motion,
which the court denied on May 4, 2016. Appellant then filed a timely notice
of appeal, and he also timely complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) statement. The court subsequently filed a Rule 1925(a)
opinion. Herein, Appellant presents two issues for our review:
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I. Did the trial court err in taking “judicial notice” of facts not of
record; in essence, inferring details not in evidence by “reading
between the lines” to create improper inferences that do not
reasonably flow from the evidence presented?
II. Was the evidence presented at trial sufficient to support
[Appellant’s] convictions for robbery and conspiracy, in that the
trial court, sitting as the fact-finder, based the guilty verdict on
speculation, considered facts not in evidence, argued with the
expert when the scientific evidence on eyewitness identification
did not comport with [the court’s] previously held beliefs, and
speculated about certain inferences because he could hear things
in the African-American grandmother’s voice that others could
not hear?
Appellant’s Brief at 5.
Appellant divides his initial issue into two separate claims. First, he
avers that the court improperly took ‘judicial notice’ of certain facts that
were not supported by the evidence. Second, Appellant maintains that the
court erred in questioning Dr. Vallano. Preliminarily, we note that Appellant
does not point to where he objected to either of these purported trial court
errors. However, we recognize that in Commonwealth v. Hammer, 494
A.2d 1054 (Pa. 1985), abrogated on other grounds by Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), our Supreme Court relaxed “the waiver
doctrine in the case of judicial intemperance[,] for counsel cannot veto
actions viewed by the judge to be wholly permissible.” Id. at 1060. The
Hammer Court concluded that, because the record in that case evinced
“that objection would [have been] meaningless to satisfy the reasons for
raising objection and … indeed intensified judicial animosity, justice [would]
not [be] served by the strict application of the waiver doctrine.” Id.Accordingly, the Court held “that the failure of trial counsel to object to the
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questioning by the judge, who is charged with a function of self-regulation,
will not under all circumstances render the allegation of judicial impropriety
unavailable for appellate review.” Id.In this case, we will apply the relaxed waiver doctrine of Hammer,
and we will not deem the claims that Appellant proffers within his first issue
waived. Accordingly, we will address those claims in turn.
Appellant begins by arguing that the trial court improperly took
‘judicial notice’ of certain facts when the court was interpreting the prison
phone conversation between Appellant and his grandmother. Specifically,
during defense counsel’s closing argument, the court stated that there was a
“cultural component” to its interpretation of Appellant’s conversation with his
grandmother.2 N.T. Trial at 71. The court then explained that it understood
Appellant’s remarks during the conversation as Appellant’s “telling [his
grandmother to], ‘Find [him] a way to get out of here. Find someone who
will lie to get [him] out of here.’” Id. at 72. The court also interpreted the
call as including a question from Appellant’s grandmother about whether
Appellant was caught with a gun. Id. (the trial court’s stating, “She was
asking him some questions. ‘Did they catch you with the gun?’ That means
something.”). Appellant complains that the court’s application of a ‘cultural
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2
Appellant interprets the court’s remark about a “cultural component” as
referring to the fact that Appellant, his grandmother, and the trial judge are
all African-American. See Appellant’s Brief at 28 n.5.
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component’ was improper, and that it led to the court’s taking ‘judicial
notice’ of facts not supported by the actual content of the phone call, or by
any other evidence at trial.
Preliminarily, we note that the trial court never stated that it was
taking ‘judicial notice’ of any fact(s). Rather, the court explained that it was
drawing inferences from the statements made by Appellant and his
grandmother during the phone call. Therefore, we must assess whether
those inferences were reasonable. In regard to the court’s inferring that
Appellant was asking his grandmother to find someone to lie for him, we do
not consider the court’s interpretation to be off mark. Notably, Appellant
told his grandmother that he needed ‘Naya’ to say he was with her on the
‘14th.’ When his grandmother asked him if he had actually been with ‘Naya,’
Appellant said no. It was reasonable for the court to infer, from those
remarks, that Appellant was attempting to fabricate an alibi for the robbery
that occurred on December 14, 2014, and that he was seeking assistance
from his grandmother in that endeavor. Therefore, we see no error in
regard to the court’s inference that Appellant was trying to find someone to
lie for him.
Next, Appellant avers that it was unreasonable for the court to
conclude that his grandmother asked him whether he was caught with the
gun. We are compelled to agree. Nothing in Appellant’s grandmother’s
statements could be interpreted as her asking, or even implying, such a
question. In fact, it seems the court may have simply been
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misremembering the content of the call. In any event, we must agree with
Appellant that no evidence supported that inference and, therefore, it was
unreasonable.
Nevertheless, we agree with the Commonwealth that the court’s
erroneous interpretation of this fact was harmless error that did not
contribute to the court’s verdict. Our Supreme Court has declared:
It is well settled that “an appellate court has the ability to affirm
a valid judgment or verdict for any reason appearing as of
record.” Commonwealth v. Parker, 591 Pa. 526, 534–35, 919
A.2d 943, 948 (2007) (citing Commonwealth v. Katze, 540
Pa. 416, 658 A.2d 345 (1995) (Opinion in Support of
Affirmance)). As we explained in Commonwealth v. Thornton,
[t]he doctrine of harmless error is a technique of appellate
review designed to advance judicial economy by obviating
the necessity for a retrial where the appellate court is
convinced that a trial error was harmless beyond a
reasonable doubt. Its purpose is premised on the well-
settled proposition that “[a] defendant is entitled to a fair
trial but not a perfect one.”
494 Pa. 260, 266, 431 A.2d 248, 251 (1981). This Court may
affirm a judgment based on harmless error even if such an
argument is not raised by the parties.
Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (footnote
omitted).
Here, it is apparent that the trial court’s improper conclusion that
Appellant’s grandmother asked him if he was caught with the gun did not
impact the court’s verdict and, therefore, the error was harmless beyond a
reasonable doubt. Just before the court rendered its verdict of guilt, it
repeatedly stressed that it found Andrew Latterner’s testimony and
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identification of Appellant to be “perfectly credible.” N.T. Trial at 88, 89.
While the court mentioned “[t]hat the phone call affected it[,]” the court did
not elaborate on that remark in any way; instead, the court immediately
returned to its discussion of why it found Latterner to be credible. Id. at 88.
At no point did the court refer to its erroneous interpretation of the prison
phone call as including a question from the grandmother about whether
Appellant was caught with the gun.
We also note that in its opinion and order denying Appellant’s post-
sentence motion for a new trial, the court again indicated that its verdict
rested solely on the Latterner’s identification of Appellant as the gun-
wielding robber. Specifically, the court stated: “Evidence from a single
witness - if believed - can sustain a verdict. This is one of those cases.”
Memorandum Opinion and Order, 5/4/16, at 2 (emphasis added).
Additionally, in its Rule 1925(a) opinion, the court reiterates that Latterner’s
credibility was the basis for its convicting Appellant. See Trial Court
Opinion, 9/19/16, at 2 (“[T]he [c]ourt believed the victim. The [c]ourt
found Mr. Andrew Latterner from Minnesota to be a very credible witness.”).
Based on this record, it is clear that the court’s verdict did not rest - in whole
or even in part - on the fact that the court believed Appellant’s grandmother
asked him if he was caught with the gun. Thus, the court’s error in drawing
this erroneous inference from the phone conversation was harmless.
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The second claim Appellant presents within his first issue is that the
court erred by questioning the defense’s expert witness, Dr. Vallano.
Appellant explains his claim, as follows:
[B]efore the expert witness, Dr. Vallano, began a
presentation on the science surrounding the field of eyewitness
testimony, [the trial court] interjected [its] own thoughts and
understanding about the subject. Then, after examination by
defense counsel, the court conducted its own examination of the
expert.
A large portion of the court’s questioning revolved around
the idea of cross-racial identification. Specifically, the court
inquired, “What if on this [cross-]racial identification, what if the
party that was identifying, although may be of a different race,
what if he grew up with the race he was identifying? Would that
make a difference?” NT at 60. “For instance, what if I grew up
in China. Would I be better at identifying Chinese than my
brother who grew up in Manchester?” Id. Dr. Vallano replied,
“[A]t this point in the literature, we’re not really sure if [that]
exists.” [Id.] at 60-61.
Continuing in that vein, the court asked, “What about this.
What about a Chinese guy who grew up in Harlem? Would he be
better if he went to China at identifying a Chinese guy than a
black guy?” [Id. at] 62. Dr. Vallano’s response was, “[T]he
research is inconclusive.” Id. To this, the court replied, “The
point I’m making is that the research is really shabby. The point
that you’re getting to, that you’re making this definitive answer
about, around … [cross-]racial identification, there is very little
reliable information at all other than --.” Id. The examination
by the court extends for several pages in the transcript. [Id. at]
60-66.
Appellant’s Brief at 34-35.
While Appellant recognizes that “a trial court may, at times, question a
testifying witness to clarify a witness’s testimony[,]” id. (citing
Commonwealth v. Hogentogler, 53 A.3d 866, 880 (Pa. Super. 2012), he
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nevertheless argues that the court’s “extensive examination” of Dr. Vallano
amounted to the court’s “enter[ing] the case as an advocate.” Appellant’s
Brief at 37. Appellant also avers that the court was predisposed to
disbelieving the defense’s expert, as the court held a “pre-conceived notion
that the Caucasian victim in this case, who lived in a primarily African-
American neighborhood, would not have the same difficulties with identifying
his attacker as every other Caucasian.” Id. at 36. According to Appellant,
“[t]he court seemed to ignore the expert witness when his testimony
conflicted with the [court’s] pre-conceived notions relating to the accuracy of
eyewitness testimony[,]” and, thus, the court failed to “remain an impartial
arbiter of the facts of this case.” Id. at 37.
We begin by recognizing that,
[i]t is always the right and sometimes the duty of a trial judge to
interrogate witnesses, although, of course, questioning from the
bench should not show bias or feeling nor be unduly protracted.
A major reason for the restrictions on a trial judge's questioning
is the concern that his conduct may lead the jury to conclude
that the court has made up its mind on the question of the
defendant's guilt, and that the jury should follow the judge's
opinion. That consideration, of course, is not present in a bench
trial or a suppression hearing. Nevertheless, even in those
situations, “questioning from the bench should not show bias or
feeling nor be unduly protracted[.]” This is not because of what
might be intimated to a non-existent jury but because the
parties are entitled to a fair fact-finder who, while not allowing
himself to be put in a straightjacket by the adversary system,
does not attempt to banish the restraints of that system from
the courtroom.
Commonwealth v. Seabrook, 379 A.2d 564, 567–68 (Pa. 1977) (citations
and quotation marks omitted).
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Here, while we acknowledge the court’s questioning of Dr. Vallano was
needlessly lengthy, we agree with the Commonwealth that nothing in the
court’s questioning indicated any bias against the defense, or that the court
had made a predetermined decision not to believe the doctor’s testimony.
Rather, it is apparent from the record that the court asked questions to
clarify Dr. Vallano’s opinion about the scientific findings in the area of cross-
racial identification, and how those findings should impact the court’s
credibility determination regarding Latterner’s identification in this case. The
trial court’s explanation in its opinion supports this interpretation of the
record:
A detached reading of the expert’s testimony will show [that] the
[c]ourt, fueled by its fascination of how the law and science
evolve, posed questions which furthered the inquiry and allowed
the expert to demonstrate his expertise on the topic. The
[c]ourt understood what the expert was saying. The [c]ourt
understands the underlying social science and its current
limitations. But, that understanding does not equal a defense
verdict. The [c]ourt found the single witness identification to
triumph over the defense[-]generated expert evidence.
TCO at 3-4. Given our review of the record, and the court’s discussion in its
opinion, we ascertain no reversible error in the court’s questioning of Dr.
Vallano. Thus, Appellant’s first issue is meritless.
In Appellant’s second issue, he challenges the sufficiency of the
evidence to support his convictions for robbery and conspiracy.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
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133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
To prove Appellant committed robbery in this case, the Commonwealth
was required to demonstrate that he “threaten[ed] another with or
intentionally put[] him in fear of immediate serious bodily injury[.]” 18
Pa.C.S. § 3701(a)(1)(ii). Additionally, “[a] conviction for criminal
conspiracy, 18 Pa.C.S. § 903, is sustained where the Commonwealth
establishes that the defendant entered an agreement to commit or aid in an
unlawful act with another person or persons with a shared criminal intent
and an overt act was done in furtherance of the conspiracy.”
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)
(citations omitted).
Here, Appellant solely argues that the evidence was insufficient to
sustain either of these convictions because “the Commonwealth failed to
prove his identity as the culprit beyond a reasonable doubt.” Appellant’s
Brief at 42. As Appellant recognizes,
[i]n determining whether a particular identification was reliable,
the court “should consider the opportunity of the witness to view
the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of [his or her] prior description of the
criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the
confrontation. The opportunity of the witness to view the actor at
the time of the crime is the key factor in the totality of the
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circumstances analysis.” Commonwealth v. Bruce, 717 A.2d
1033, 1037 (Pa. Super. 1998) (citations omitted).
[E]vidence of identification need not be positive and
certain to sustain a conviction. Although common items of
clothing and general physical characteristics are usually
insufficient to support a conviction, such evidence can be
used as other circumstances to establish the identity of a
perpetrator. Out-of-court identifications are relevant to our
review of sufficiency of the evidence claims, particularly
when they are given without hesitation shortly after the
crime while memories were fresh. Given additional
evidentiary circumstances, any indefiniteness and
uncertainty in the identification testimony goes to its
weight.
Commonwealth v. Valentine, 101 A.3d 801, 806 (Pa. Super. 20014)
(quoting Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011)).
Appellant claims that in this case, the court should have found
Latterner’s identification unreliable because three weeks had passed before
Latterner picked Appellant from the photographic array, the presence of a
gun during the robbery likely drew Latterner’s focus away from the face of
the robber, and cross-racial identifications are necessarily less reliable.
Appellant also notes that Latterner did not give a specific description of his
assailants to police, only stating that the gun-wielding robber was a black
man who was taller than 5’5”, and who was wearing black sweatpants and a
dark blue hooded sweatshirt. See Appellant’s Brief at 44.
Additionally, Appellant avers that Latterner’s identification of him at
the preliminary hearing was not compelling, where Appellant “was the only
person in the room other than the attorneys,” and Latterner “may have
identified [Appellant] at the preliminary hearing because he remembered
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seeing the photo (not the gunman) before….” Id. at 45. Appellant presents
a similar argument in challenging the credibility of Latterner’s identification
of him at trial, claiming that Latterner “may have identified [Appellant] at
trial because he remembered him from the preliminary hearing, not because
he remembered [Appellant] as the gunman.” Id. at 45-46.
Finally, Appellant reiterates the arguments presented in his first issue,
claiming that the trial court “bas[ed] the guilty verdict on evidence that
simply was[ not] there -- evidence that the court inferred from the call to
[Appellant’s] grandmother.” Id. at 48. Therefore, in Appellant’s view, “the
verdict herein [was] largely based upon speculation and surmise” and, thus,
it must be reversed. Id. at 49.
Appellant’s arguments are unconvincing. Initially, we will not rehash
our discussion of his claim that the trial court relied on a fact not supported
by the evidence in reaching its verdict, as it is clear the court focused on
Latterner’s identification in convicting Appellant, not its interpretation of the
prison phone call between him and his grandmother. Moreover, in our view,
the totality of the circumstances surrounding Latterner’s identification of
Appellant permitted the court to find it credible. Latterner testified that,
while Appellant had the hood of his sweatshirt pulled up, Latterner was able
to see his face during the two-minute robbery. The street was lit by a
streetlight, and by lights from the houses on the street. Appellant asked
Latterner questions during the robbery, and Latterner testified that he “was
looking at [Appellant’s] face” as Appellant spoke to him. N.T. Trial at 16.
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Latterner later testified on redirect examination that he was not looking at
the gun when speaking with Appellant, but he was instead looking at
Appellant’s face. Id. at 28.
Moreover, while Latterner did not identify Appellant in the
photographic array until three weeks after the robbery, his identification at
that point was certain. Specifically, Latterner testified that he examined the
photographs for approximately one minute as he “recalled the details” of the
robbery “so [he] didn’t make any mistakes.” Id. at 27. He then selected
Appellant’s photograph because he recognized Appellant’s face. Id. The
officers who presented the array informed Latterner that the array might, or
might not, contain a suspect, and Latterner did not feel that he “had to
select a photo[.]” Id. at 19. Latterner also testified that he identified
Appellant at the preliminary hearing, and he did not waiver when identifying
Appellant at trial as the gun-wielding robber. Id. at 10-11, 22.
The totality of the circumstances surrounding Latterner’s out-of-court
identification of Appellant were sufficient to permit the court to find it
credible, especially considering that Latterner remained consistent in
identifying Appellant at the preliminary hearing and at trial. While Dr.
Vallano testified that certain factors in this case could have impacted the
accuracy of Latterner’s identification, the trial court was free to reject that
testimony and believe Latterner’s claim that Appellant was one of the people
who robbed him. Based on Latterner’s identification of Appellant and his
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testimony about the robbery, the evidence was sufficient to support
Appellant’s convictions.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2017
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