Com. v. Dixon, R.

J-S44027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT WILLIAM DIXON
Appellant No. 88 WDA 2014
Appeal from the Judgment of Sentence December 9, 2013
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000239-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 22, 2014
Robert William Dixon appeals from the judgment of sentence entered
in the Court of Common Pleas of Erie County following his conviction by a
jury for armed robbery,1 theft by unlawful taking,2 receiving stolen
property,3 4
After
review, we affirm.
The trial court summarized the relevant factual background as follows:
On October 25, 2012, at approximately 10:15 p.m., [Dixon] and
an unknown female lured the victim, Jason Baney, to 818 East
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1
18 Pa.C.S. § 3701(a).
2
18 Pa.C.S. § 3921(a).
3
18 Pa.C.S. §3925(a).
4
18 Pa.C.S. § 907(b).
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Avenue in the City of Erie. [Dixon] and/or the female placed a
food delivery order from a cell phone with the Fortune Garden
Chinese restaurant. When Baney, the delivery driver, arrived at
the address given to the restaurant, he discovered the address
of 818 East Avenue [did] not exist.
Baney then called the contact cell phone number given to the
restaurant. A . . . female answered the phone and waved Baney
down as she was standing across the street between 819 and
821 East Avenue. Baney drove his car to the other side of the
street where the female was standing. The female asked the
victim how much were the delivery charges. She indicated to
Baney she needed to get change to pay for the order. She then
motioned to [Dixon] who had been pacing behind her in the
shadows.
[Dixon] pulled out a black handgun, approached Baney, stuck
reviated).
pocket.
vehicle. Baney kept a spare cell phone solely to play music on.
Baney kept his activated cell phone in his rig
While Baney was retrieving the spare cell phone from his vehicle,
[Dixon] kept the gun pointed at Baney through an open car
the female fled the scene.
Trial Court Opinion, 3/11/14, at 1-2.
Baney reported the incident to the police, and described his assailant
tall, wearing a puffy stocking cap from which cornrow braids protruded, a
dark hoodie and a Id. at 2. The police were able to trace the
mobile phone used to place the food order, and found that it belonged to a
Mr. Steele. After locating him, Steele told the police that someone named
blic bus. Steele also told
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the police that he believed Rob had recently been arrested. Dixon had in
fact just been arrested for the armed robbery of a pizza delivery driver.
man who stole his mobile phone, the police suspected Dixon may have
along with those of seven other similar looking men. Baney identified Dixon
on the photo array as the person who robbed him.
Dixon filed an omnibus pre-trial motion to suppress the photo array,
which the trial court denied. On September 17, 2013, a jury convicted
Dixon of armed robbery, theft by unlawful taking, receiving stolen property,
and PIC. The convictions for theft by unlawful taking and receiving stolen
property merged with the armed robbery conviction for purposes of
sentencing. Because of his prior felony convictions, Dixon was subject to a
mandatory minimum sentence of ten to twenty years in prison for the armed
robbery.5 The trial court sentenced Dixon to the mandatory minimum for
court imposed these sentences consecutively to each other and to the
sentence Dixon was serving at the time of trial for convictions in Allegheny
County. This appeal followed.
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5
42 Pa.C.S. § 9714(a).
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Dixon raises three issues on appeal. He argues: (1) the photo array
used to identify him was too suggestive, such that the police lacked probable
cause to arrest him; (2) the verdict was against the weight of the evidence;
and (3) the sentence imposed was unreasonably harsh because the trial
court set his terms of incarceration to run consecutively. Each of these
arguments is without merit.
Dixon first argues that because the photo array was unduly
suggestive, its use violated his right to due process, the police lacked
probable cause for his arrest, and therefore the trial court erred in denying
his motion to suppress. When reviewing a denial of a motion to suppress,
our
Commonwealth v. Gray, 896 A.2d 601, 603 (Pa. Super. 2006). We
employ the following standard when determining whether a photo lineup is
unduly suggestive:
Whether an out of court identification is to be suppressed as
unreliable, and therefore violative of due process, is determined
from the totality of the circumstances. Suggestiveness in the
identification process is a factor to be considered in determining
the admissibility of such evidence, but suggestiveness alone
does not warrant exclusion. Identification evidence will not be
suppressed unless the facts demonstrate that the identification
procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.
Photographs used in line-ups are not unduly suggestive if the
the people depicted all exhibit similar facial characteristics.
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Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011)
(quotation marks and citations omitted).
In Commonwealth v. Fisher, 769 A.2d 1116 (Pa. 2001), the
appellant argued that the photo array was unduly
witnesses described the suspect as a light-skinned African-American male
with freckles and a goatee, while only six of the eight pictures in the line-up
showed men with goatees, and only one, the picture of [the] [a]ppellant,
showe Id. at 1126. Despite the fact that all of the
men in the photographs did not have goatees or freckles, this Court held
that the photographs were substantially similar, such that the trial court did
not abuse its discretion in admitting them. Id. at 1127.
Here, Dixon has pointed out that his photograph was not identical to
the others used in the array, but has failed to demonstrate how it was
unduly suggestive.6 The fact that his haircut was not identical to those of
the men in the other photographs is insufficient to make the array overly
suggestive. See id.was compromised because the photograph of Dixon was taken more than
one month after the robbery. Roughly six weeks passed between the crime
____________________________________________
6
We have reviewed the photographic array, and conclude that nothing about
it is unduly suggestive such that the trial court abused its discretion in
n to suppress.
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in any appreciable way during that time so as to render the photo array
claims, we
motion to suppress and that there was no legal error. See Gray, 896 A.2d
at 603.
Next, Dixon challenges the weight of the evidence. Pennsylvania Rule
of Civil Procedure 607 mandates, in pertinent part:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for a
new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(a).
A failure to raise a weight of the evidence claim with the trial judge at
one of the enumerated junctures constitutes waiver of that claim. See
Commonwealth v. Widmer, 689 A.2d 211, 212 (Pa. 1997). A careful
review of the record reveals that Dixon did not raise his weight of the
evidence claim until after he filed his notice of appeal, in his concise
statement of matters complained of pursuant to Pa.R.A.P. 1925(b).
Accordingly, Dixon has waived this issue.
Finally, Dixon argues that we must vacate his sentence and remand
for resentencing because his sentence was extreme and unreasonable,
particularly because the trial court imposed consecutive, rather than
concurrent terms. Dixon argues that his consecutive sentence was
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argues that the application of the second strike mandatory minimum was
improper, because he did not have sufficient time for rehabilitation between
his crimes.
When an appellant challenges the discretionary aspects of a sentence,
an appeal is not guaranteed as of right. Commonwealth v. Moore, 617
A.2d 8, 11 (Pa. Super. 1992). 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, 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. §
9781(b). Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).
only where an aggrieved party can articulate clear reasons why the sentence
imposed by the trial court compromises the sentencing scheme as a whole.
Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (Pa. 1987).
Our standard of review when a defendant challenges the discretionary
aspects of his sentence is very narrow; we will reverse only where an
appellant has demonstrated a manifest abuse of discretion by the sentencing
judge. Commonwealth v. Hammanson, 674 A.2d 281, 283 (Pa. Super.
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consecutive sentences within the guideline ranges if the case involves
circumstances where the application of the guidelines would be clearly
unreasonable, resulting in an excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a sentence will not raise a
Commonwealth v. Dodge, 77 A.2d 1263, 1270 (Pa.
Super. 2013). Further, this Court is not in the business of ensuring
crimes. Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super.
2008).
In Dodge, this Court held that the appellant raised a substantial
non-
position. 77 A.2d at 1271. In contrast, this Court in Johnson held that the
appellant did not raise a substantial question where he argued consecutive
sentences were excessive, and could only elaborate on that assertion by
alleging the trial court abused its discretion in failing to consider certain
mitigating factors. 961 A.2d at 880.
without further elaboration, is insufficient to raise a substantial question for
our review. See id. In fact, a simple reading of the sentencing hearing
transcr
circumstances quite extensively before imposing sentence, and crafted his
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sentence accordingly. N.T. Sentencing Hearing, 11/26/13, at 17-21.
r rehabilitation is equally
meritless. When Dixon robbed Baney, he was a fugitive from supervision
resulting from his previous convictions. Trial Court Opinion, 3/11/14, at 13.
rehabilitation, when he committed this crime when he was a fugitive from a
rehabilitative program. Accordingly, Dixon has raised no substantial
question worthy of review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
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