Com. v. Dickerson, V.

J. S53033/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
VICTOR DICKERSON, : No. 734 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, November 19, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012554-2014
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 06, 2018
Victor Dickerson appeals from the November 19, 2015 aggregate
judgment of sentence of 2½ to 5 years’ imprisonment, to be followed by
36 months’ probation, imposed after the trial court found him guilty of
receiving stolen property and unauthorized use of an automobile.1 After
careful review, we affirm the judgment of sentence.
The trial court summarized the relevant facts of this case as follows:
Ms. Pamela Hill testified that on September 14,
201[4] at approximately 12:00 p.m., she observed a
white Subaru crash into a utility pole in the area of
200 E. Johnson Street, Philadelphia, Pennsylvania.
The vehicle was driven by [appellant] at the time of
the crash. Ms. Hill initially stated that she pulled into
a parking lot in a vehicle to take out packages.
Shortly thereafter she observed the vehicle drive
down the street and crash into the pole. Ms. Hill
1 18 Pa.C.S.A. §§ 3925(a) and 3928(a), respectively.
J. S53033/17
testified that she ran to the end of the parking lot
and saw [appellant] exit the vehicle shortly after he
crashed. Ms. Hill observed [appellant] retrieve an
object from the passenger’s seat of the vehicle.
Ms. Hill then observed [appellant] lift the driver’s
seat of the vehicle up and retrieve a duffle bag.
[Appellant] retrieved four bags in total from the
vehicle: “a green bag, two black bags out of the
passenger’s seat and one out of the trunk.” Ms. Hill
then called 911 to inform the authorities of
[appellant]’s actions. [Appellant] then walked up the
opposite side of the street and passed by Ms. Hill,
proceeding to turn left down Ross Street.
Thereafter, Ms. Hill observed a young woman exit
her home on E. Johnson Street and enter
[appellant]’s vehicle to retrieve paperwork from the
glove compartment.
Ms. Hill testified that [appellant] returned not
long after from Ross Street to the scene of the crash.
The young woman who entered the vehicle to
retrieve paperwork exited the vehicle as [appellant]
returned to the scene. [Appellant] reentered the
vehicle to retrieve a cell phone and then walked back
down Ross Street. Ms. Hill explained that [appellant]
did not have any of the bags he originally retrieved
from the vehicle on his person when he returned to
the scene of the accident. Ms. Hill provided that she
was approximately fifteen (15) feet away from
[appellant] when she initially observed him exit the
crashed vehicle. When he walked by her on the
street, she then observed him from an even closer
distance.
After [appellant] fled the scene of the incident
for a second time, a police officer came up and
briefly spoke to Ms. Hill. The police officer explained
that Ms. Hill’s presence was required to identify an
individual believed to be [appellant]. Thereafter, two
police officers returned to the scene with [appellant]
for identification. Ms. Hill observed [appellant] exit
the police officers’ vehicle wearing a different set of
clothes from during [sic] the time of the accident.
Ms. Hill proceeded to make a positive identification of
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[appellant] despite his changed clothes. Ms. Hill
testified that she based her identification on
[appellant]’s face.
Ms. Hill further testified that she was a
passenger in a vehicle when she travelled to the area
of 200 E. Johnson Street on September 14, 201[4],
where she observed [appellant]. After [appellant]
crashed into the pole, Ms. Hill described the vehicle
as tipped sideways on the street. Ms. Hill explained
that [appellant]’s back was facing her when he
initially exited the vehicle from the driver’s side.
[Appellant] exited the vehicle with several bags in
his possession and then walked in her direction on
the opposite side of the street. Ms. Hill stated that
the car accident occurred on the opposite side of the
street from where she was originally located. There
were no other vehicles between Ms. Hill and
[appellant] when he crashed and initially exited the
vehicle, providing her with an unobstructed view.
Ms. Hill specified that she was initially located
behind a tree in the parking lot when the car driven
by [appellant] crashed into the pole. After the
accident, she walked out of the parking lot to
approach the scene and see if [appellant] was safe.
Ms. Hill then observed [appellant] retrieve several
bags and exit the vehicle. Ms. Hill explained that
while she is far-sighted, she was wearing her
corrective lenses on the date in question. She
immediately thereafter called the police and gave a
description of an individual wearing a white t-shirt,
blue jeans, a jacket, and white sneakers. Ms. Hill
acknowledged that she did not include height,
weight, or whether the individual had facial hair or
glasses in her description to the police over the
phone.
Ms. Hill testified that [appellant] was still
wearing a white t-shirt, blue jeans, a jacket, and
white sneakers when he returned to the vehicle
approximately five minutes after the initial crash.
She also heard [appellant] say to a young lady at the
scene that he was retrieving a cell phone. Ms. Hill
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stated that [appellant] then fled for a second time
toward Ross Street and passed by her again as she
awaited the arrival of police. A police officer then
arrived at the scene and asked Ms. Hill if she could
identify [appellant]. Thereafter, a marked police
sports utility vehicle (SUV) drove up to the scene
with two police officers in the front of the vehicle and
[appellant] in the back seat. Ms. Hill testified that
the two police officers then escorted [appellant] in
handcuffs out of the police SUV for identification. At
that time she was roughly thirty (30) to forty (40)
feet away from [appellant]. Ms. Hill stated that
[appellant] was now wearing a green t-shirt when he
exited the police SUV instead of the white t-shirt
from earlier.
Philadelphia Police Officer Dora Crenshaw
testified that she was on duty on September 14,
2014 at approximately 12:40 p.m. when she
received a radio call regarding an automobile
accident on the 200 block of E. Johnson Street,
Philadelphia. Officer Crenshaw received flash
information describing [appellant] as a black male
wearing a white t-shirt, blue jeans, and a white hat.
The flash informed Officer Crenshaw that [appellant]
had fled the scene with several bags in his
possession.[2] Officer Crenshaw observed a male
matching the description of [appellant] on the
800 block of E. Washington Lane and proceeded to
stop him. Officer Crenshaw approached and asked
him for “his name and everything, where he was
coming from.” [Appellant] failed to initially
acknowledge Officer Crenshaw’s questions which led
her to call for back-up. Officer Crenshaw testified
that as her back-up arrived and apprehended
[appellant] on the 800 block of E. Washington Lane,
she then went to the scene of the crash. At the
scene she observed that a white Subaru had crashed
2 On cross-examination, Officer Crenshaw clarified that the radio flash was
for a black male with a white t-shirt and blue jeans heading in a southerly
direction. (Notes of testimony, 7/8/15 at 30-31; Defense Exhibit D-3.) The
additional information that he was wearing a white hat and carrying bags
was obtained from Hill at the scene, after appellant had been stopped. (Id.)
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against a utility pole. As Officer Crenshaw looked
inside the vehicle and located registration and
insurance paperwork on the driver’s seat, Ms. Hill
approached Officer Crenshaw and stated that she
was the eyewitness that had called the authorities.
Officer Crenshaw asked Ms. Hill to describe
[appellant] to her. Ms. Hill described [appellant] as
wearing a white bucket hat. Recognizing that the
individual she had stopped moments earlier was
wearing a white bucket hat, Officer Crenshaw
proceeded to radio her back-up to bring [appellant]
to her location in order to obtain a positive
identification from Ms. Hill.
Officer Crenshaw testified that only a few
minutes passed between the time she initially
received the radio call of the accident to when she
directly observed [appellant] on the 800 block of
E. Washington Lane. She stated that this location
was approximately half a mile to a mile away from
the scene of the crash. On cross-examination,
Officer Crenshaw further testified that she was in a
marked police vehicle on the day of the accident,
alone on patrol, and learned of the auto accident at
200 E. Johnson Street through the flash.
Officer Crenshaw initially testified that the flash
described a black male wearing a white hat, white
t-shirt, and blue jeans, as well as carrying bags and
fleeing westbound on E. Johnson Street towards
Magnolia Street. However, the flash from the radio
call for the accident actually stated that the black
male was fleeing south from the scene of the crash.
Officer Crenshaw conceded that the information she
included in her initial testimony was not identical to
the description given in the radio call containing the
flash.
On redirect, Officer Crenshaw also clarified that
the flash did not contain any information pertaining
to [appellant] wearing a hat or having bags in his
possession. However, Officer Crenshaw explained
that she later obtained information pertaining to
[appellant]’s hat and bags from Ms. Hill at the scene
of the crash. Officer Crenshaw ultimately discovered
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[appellant] northeast of the scene of the crash. She
explained that the initial radio call she received was
mistaken in regards to the direction that [appellant]
had fled. Officer Crenshaw explained that the flash
stated [appellant] was heading west due to the fact
[appellant] “ran from the vehicle and went west on
Johnson from the vehicle.” Upon apprehending
[appellant], she described him as wearing a tan
shirt, a black jacket, a black long sleeve shirt, and
blue jeans.
Officer Crenshaw testified that a 75-229 was
completed for this case. On the 229 there was no
mention of a hat on [appellant]’s person nor any
bags in his possession. Officer Crenshaw did not
complete a property receipt for either the hat or any
of the bags. Officer Crenshaw explained that she
only created a property receipt for the vehicle
involved in the accident. She stated that the police
paperwork noted [appellant]’s facial hair, height of
five (5) feet eleven (11) inches, weight of
one-hundred and fifty-five (155) pounds, and
medium complexion.
Officer Crenshaw commanded [appellant] to
stop and asked for his name when she first
encountered him. Officer Crenshaw testified that she
frisked [appellant] for her safety but did not find
anything on his person. She then observed two bags
in his possession and conducted a search of the bags
before she reported to the scene of the accident.
She discovered another bag inside [appellant]’s
green duffel bag. Overall, [appellant] solely had
clothing and beer in the bags. Officer Crenshaw also
testified that she was not informed by Ms. Hill
whether or not [appellant] was intoxicated.
Officer Crenshaw testified that she made no notes on
[appellant] being intoxicated and did not arrest him
for Driving Under the Influence. [Appellant] was in
the backseat of the police SUV and in handcuffs
when he was taken to scene of the accident and
taken out of the vehicle for identification.
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When questioned about Commonwealth
Exhibit 1 (C-1), the 75-48, Officer Crenshaw
confirmed that she completed the Philadelphia
non-reportable accident report for the accident in
question. She stated that it contained the VIN
number for the vehicle that was involved in the
accident. On cross-examination, Officer Crenshaw
testified that there were no signs of forced entry into
the vehicle, damage to the steering column, or
damage to the VIN when she approached and
examined the vehicle on the day of the incident.
[Appellant] did not attempt to flee or resist arrest.
Officer Crenshaw stated that [appellant] was solely
arrested for the circumstances surrounding the
automobile accident, not for any other warrants or
causes.
A stipulation was entered by and between
counsel that if called to testify, Ms. Barbara
Baumbach, the owner of a white 2004 Subaru
Forester with VIN ending in 473668, would state that
she last saw her vehicle on September 2, 2014 when
she left to go on vacation. Further, upon her return
from vacation on September 10, 2014, the vehicle
was gone and Mrs. Baumbach reported it stolen.
Pursuant to this stipulation, a vehicle theft report
containing a full VIN number and the vehicle owner’s
signature was marked and moved into evidence as
Commonwealth Exhibit 2 (C-2). The Defense
marked and moved Defense Exhibits D-1 through
D-5, referring to the Motion to Suppress, into the
record.
Trial court opinion, 10/6/16 at 2-9 (citations to notes of testimony and
footnote omitted).
On September 14, 2014, appellant was arrested and charged with,
inter alia, receiving stolen property and unauthorized use of an automobile
in connection with this incident. On December 19, 2014, appellant filed an
omnibus pre-trial motion to suppress all physical evidence obtained from
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the stop of his person, as well as Hill’s out-of-court identification. (See
“Omnibus Pre-Trial Motion to Suppress Evidence,” 12/19/14 at 1-2.)
Appellant filed a second omnibus pre-trial suppression motion on
February 2, 2015. Following a hearing, the trial court denied appellant’s
suppression motions on July 8, 2015. Appellant waived his right to a jury
and proceeded to a bench trial that same day. Following the waiver trial,
appellant was found guilty of one count each of receiving stolen property
and unauthorized use of a motor vehicle.3 As noted, the trial court
sentenced appellant to an aggregate term of 2½ to 5 years’ imprisonment,
to be followed by 36 months’ probation, on November 19, 2015.
Subsequently, on February 23, 2016, appellant’s direct appeal rights were
reinstated nunc pro tunc, and appellant filed a timely notice of appeal on
March 3, 2016.4
On appeal, appellant raises the following issues for our review:
1. Was not the evidence insufficient to prove
appellant guilty of receiving stolen property or
unauthorized use of an automobile where the
Commonwealth did not prove beyond a
reasonable doubt that appellant was the
perpetrator as the sole evidence was that
appellant possessed a vehicle that had been
3 The record reflects that appellant was also found guilty of one count of
accidents involving damage to attended vehicle or property, 75 Pa.C.S.A.
§ 3743(a); however, the trial court granted appellant’s oral motion for
extraordinary relief in the nature of a motion for judgment of acquittal as to
that charge. (See motion for extraordinary relief, 11/16/15, certified record
at no. 81; trial court order, 11/19/15, certified record at no. 84.)
4 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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stolen two weeks earlier, there were no signs
of forced entry or other indicia of a stolen car,
the car was operated with keys, and appellant
was cooperative with police?
2. Did not the trial court err in denying
appellant’s motion to suppress the out-of-court
identification evidence and physical evidence
as direct fruits of a seizure of appellant made
without reasonable suspicion or probable
cause?
3. Did not the trial court err in denying
appellant’s motion to suppress out-of-court
and in-court identification evidence, where the
circumstances of the out-of-court identification
by the complainant were unduly suggestive,
the identification itself was unreliable and
where the Commonwealth did not prove by
clear and convincing evidence that the in-court
identification had an independent basis
sufficient to purge the taint of the out-of-court
identification?
Appellant’s brief at 4.
Appellant first argues that there was insufficient evidence to sustain
his convictions for receiving stolen property and unauthorized use of an
automobile. (Id. at 13.) We disagree.
Whether the evidence was sufficient to support the
conviction presents a matter of law; our standard of
review is de novo and our scope of review is
plenary. In conducting our inquiry, we
examine whether the evidence admitted
at trial, and all reasonable inferences
drawn therefrom, viewed in the light
most favorable to the Commonwealth as
verdict winner, support the jury’s finding
of all the elements of the offense beyond
a reasonable doubt. The Commonwealth
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may sustain its burden by means of
wholly circumstantial evidence.
Commonwealth v. Biesecker, 161 A.3d 321, 326 (Pa.Super. 2017)
(internal citations omitted).
A person will be found guilty of the crime of receiving stolen property
“if he intentionally receives, retains, or disposes of movable property of
another knowing that it has been stolen, or believing that it has probably
been stolen, unless the property is received, retained, or disposed with
intent to restore it to the owner.” 18 Pa.C.S.A. § 3925(a). For purposes of
this section, “receiving” is defined as “acquiring possession, control or title,
or lending on the security of the property.” Id. at § 3925(b). The
Commonwealth may sustain its burden of proof under Section 3925 by
means of circumstantial evidence. See Commonwealth v. Robinson, 128
A.3d 261, 265 (Pa.Super. 2015) (finding that the guilty knowledge required
to convict a defendant of receiving stolen property, like all culpable mental
states, may be inferred from circumstantial evidence).
The crime of unauthorized use of a motor vehicle is defined as follows:
(a) Offense defined.--A person is guilty of a
misdemeanor of the second degree if he
operates the automobile, airplane, motorcycle,
motorboat, or other motor-propelled vehicle of
another without consent of the owner.
18 Pa.C.S.A. § 3928(a).
[A] conviction for unauthorized use of a vehicle must
be predicated on proof that the defendant operated
the vehicle without the owner’s consent and that the
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defendant knew or had reason to know that he
lacked the owner’s permission to operate the vehicle.
Commonwealth v. Carson, 592 A.2d 1318, 1321 (Pa.Super. 1991)
(citations omitted), appeal denied, 600 A.2d 533 (Pa. 1991)
Instantly, appellant contends that the Commonwealth failed to prove
he was the driver of the vehicle in question. (Appellant’s brief at 14.)
Appellant also argues that there were no physical manifestations of theft,
e.g., a broken steering column or obliterated VIN number, and that there
was no evidence of consciousness of guilt. (Id. at 15-17.) Appellant further
maintains that he cooperated with police and did not attempt to flee. (Id. at
17.)
Viewing the evidence in the light most favorable to the
Commonwealth, the verdict winner, we find that there was ample evidence
for the trial court to conclude that appellant was guilty of receiving stolen
property and unauthorized use of an automobile. As noted above, Hill
identified appellant as the driver of the stolen vehicle. While there were no
signs of forced entry into the vehicle or damage to the steering column,
appellant’s behavior was indicative of a guilty conscience. Appellant left the
keys, registration, and insurance paperwork inside the crashed vehicle,
retrieved his bags, and left the scene. (Notes of testimony, 7/8/15 at 25,
52.) A short time later, appellant returned to the vehicle to get his cell
phone. (Id. at 9.) Officer Crenshaw located appellant across from a train
station, and when confronted, appellant initially failed to acknowledge
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Officer Crenshaw’s questions. (Id. at 24-25, 36.) In addition, there was
sufficient circumstantial evidence that appellant changed his clothes
immediately after the crash. The driver was described as a black male
wearing a white t-shirt, blue jeans, and a white hat, and carrying bags. (Id.
at 24.) When Officer Crenshaw encountered appellant, he was wearing a tan
shirt, a black long-sleeved shirt, and a black jacket. (Id. at 33.) The trial
court, sitting as fact-finder, made the reasonable inference that appellant
abandoned the vehicle, retrieved all of his belongings, and changed his
clothes in an attempt to conceal his identity. (Id. at 60-63.) Based on the
foregoing, we discern no abuse of discretion in reaching these conclusions.
Accordingly, appellant’s claim that there was insufficient evidence to sustain
his convictions must fail.
Appellant next argues that the trial court abused its discretion in
denying his motion to suppress both the physical evidence obtained from
Officer Crenshaw’s stop of his person, as well as Hill’s subsequent
out-of-court identification. (Appellant’s brief at 17.)
Our standard of review when addressing a challenge to a trial court’s
denial of a suppression motion is well settled.
[An appellate court’s] standard of review in
addressing a challenge to the denial of a suppression
motion is 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
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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, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
It is well settled that “[t]he Fourth Amendment to the [United States]
Constitution and Article I, Section 8 of [the Pennsylvania] Constitution
protect citizens from unreasonable searches and seizures.”
Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa.Super. 2012), appeal
denied, 65 A.3d 413 (Pa. 2013). “To secure the right of citizens to be free
from such intrusions, courts in Pennsylvania require law enforcement officers
to demonstrate ascending levels of suspicion to justify their interactions with
citizens to the extent those interactions compromise individual liberty.”
Commonwealth v. Reppert, 814 A.2d 1196, 1201 (Pa.Super. 2002)
(citation omitted). Courts in this Commonwealth have recognized three
types of interactions between members of the public and the police: a mere
encounter, an investigative detention, and a custodial detention.
A mere encounter between police and a citizen need
not be supported by any level of suspicion, and
carr[ies] no official compulsion on the part of the
citizen to stop or to respond. An investigatory stop,
which subjects a suspect to a stop and a period of
detention, but does not involve such coercive
conditions as to constitute an arrest, requires a
reasonable suspicion that criminal activity is afoot. A
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custodial search is an arrest and must be supported
by probable cause.
Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa.Super. 2007) (citations
and internal quotation marks omitted).
In evaluating whether an interaction rises to the level of an
investigative detention, “the court must examine all the circumstances and
determine whether police action would have made a reasonable person
believe he was not free to go and was subject to the officer’s orders.”
Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.Super. 2003)
(citation omitted). Courts in this Commonwealth have mandated that law
enforcement officers, prior to subjecting a citizen to an investigatory
detention, “must harbor at least a reasonable suspicion that the person
seized is then engaged in unlawful activity.” Commonwealth v. Barber,
889 A.2d 587, 593 (Pa.Super. 2005) (citation omitted). “Reasonable
suspicion is a less stringent standard than probable cause necessary to
effectuate a warrantless arrest, and depends on the information possessed
by police and its degree of reliability in the totality of the circumstances.”
Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010). An appellate
court must give weight “to the specific, reasonable inferences drawn from
the facts in light of the officer’s experience and acknowledge that innocent
facts, when considered collectively, may permit the investigative detention.”
Id. (citation omitted). Police officers, however, “need not personally
observe the illegal or suspicious conduct, but may rely upon the information
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of third parties, including tips from citizens.” Commonwealth v. Smith,
904 A.2d 30, 36 (Pa.Super. 2006) (citation and internal quotation marks
omitted).
We are mindful of the fact that,
the totality of the circumstances test does not limit
our inquiry to an examination of only those facts that
clearly indicate criminal conduct. Rather, even a
combination of innocent facts, when taken together,
may warrant further investigation by the police
officer.
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006) (citations
and internal quotations omitted).
Instantly, appellant contends that Officer Crenshaw lacked reasonable
suspicion to stop him on the day in question. (Appellant’s brief at 17.) In
support of this contention, appellant avers that when he was stopped, he
was not engaged in any suspicious activity and was wearing different
clothing than the individual described in the radio flash. (Id. at 19.)
Appellant further contends that if the detention was unlawful, then all
physical evidence as well as Hill’s out-of-court identification must be
suppressed as fruit of the poisonous tree.5 (Id. at 21-22.)
Preliminarily, we agree with appellant that Officer Crenshaw lacked the
requisite reasonable suspicion of criminal activity to justify an investigative
5We note that, “[t]he ‘fruit of the poisonous tree’ doctrine excludes evidence
obtained from, or acquired as a consequence of, lawless official acts.”
Commonwealth v. Johnson, 68 A.3d 930, 946 (Pa.Super. 2013) (citations
omitted).
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stop or detention. Specifically, the record reveals that on the afternoon of
September 14, 2014, Officer Crenshaw responded to a radio call of an auto
accident on the 200 block of East Johnson Street. (Notes of testimony,
7/8/15 at 23-24.) Officer Crenshaw testified that the radio flash in question
described a black male heading southbound carrying three bags and wearing
a white t-shirt, blue jeans, and white hat. (Id. at 24, 31.) Shortly
thereafter, Officer Crenshaw encountered appellant approximately one-half
mile to one mile from the accident scene, stopped him, and seized the bags
he was carrying. (Id. at 24, 26, 37.) Despite Officer Crenshaw’s initial
testimony to the contrary, however, at no point did the radio flash indicate
that the individual who fled the scene was carrying any bags. (Id. at 24,
31.) Officer Crenshaw acknowledged on cross-examination that the
additional information that appellant was wearing a white hat and carrying
bags was obtained from Hill at the scene of the accident, after appellant had
already been stopped and refused to answer her questions. (Id. at 24-25,
29-31.) Moreover, the record reflects that appellant was stopped north of
the accident scene, not south, and was wearing a tan shirt, a long-sleeved
black shirt, and a black jacket. (Id. at 30-31.)
Despite our agreement with appellant that Officer Crenshaw lacked
reasonable suspicion to detain him, we do not find that the physical evidence
and Hill’s subsequent out-of-court identification is suppressible as fruit of the
poisonous tree. In reaching this conclusion, we acknowledge our recent
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decision in Commonwealth v. Santiago, 160 A.3d 814 (Pa.Super. 2017),
appeal granted in part, 179 A.3d 455 (Pa. 2018). Santiago, however, is
distinguishable from the instant matter. Santiago involved a
Commonwealth appeal from an order granting a defendant’s motion to
suppress the in-court and out-of-court identification testimony of a police
officer who, in violation of the Fourth Amendment, conducted a warrantless
search of defendant’s cell phone. Id. at 816. Later, the police officer
ascertained appellant’s identity based upon information he learned during
the illegal search of the cellular telephone. Id.
Under that factual scenario, the Santiago court affirmed the order of
the trial court, in part, concluding that the officer’s out-of-court identification
of defendant was fruit of the poisonous tree, and thus, inadmissible, due to
the fact that the officer conducted a warrantless search of defendant’s cell
phone in order to ascertain his identity. Id. at 827-828. The Santiago
court did so, however, only because the person who made the out-of-court
identification was the police officer who conducted the illegal search. See
id. at 828. The Santiago court recognized that previous decisions by this
court and our supreme court have held that out-of-court identifications by
individuals that are not making the unconstitutional search or seizure cannot
be suppressed as fruit of the poisonous tree. See id. On the contrary,
courts in this Commonwealth have always allowed out-of-court
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identifications that are only tangentially connected with unlawful searches
and seizures; particularly, out-of-court identifications made by third parties.
The facts of the instant matter are more closely aligned to that of
Commonwealth v. Garvin, 293 A.2d 33 (Pa. 1972).6 Garvin involved a
police officer who illegally stopped a defendant and then transported him to
the scene of the robbery, where the victim identified him. Id. at 35. The
defendant moved to suppress the out-of-court identification as fruit of the
poisonous tree, and our supreme court rejected this argument. Id. at 37-
38. The Garvin court held that the unlawful arrest “merely provided the
6 We recognize that on January 22, 2018, our supreme court granted
allowance of appeal, in part, in Santiago to determine the following issue as
stated by the petitioner in Santiago:
Is not the Superior Court's published opinion
applying the fruit of the poisonous tree doctrine to
in-court identification testimony inconsistent with
controlling Fourth Amendment United States
Supreme Court precedent and Article I, § 8, and
does not its reliance on overly broad language in
Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d
33 (Pa. 1972), necessitate this Court's guidance and
explicit rejection of Garvin and its progeny?
Santiago, 179 A.3d 455.
Until our supreme court determines that our application of the fruit of
the poisonous tree doctrine with respect to in-court identification testimony
as set forth in Santiago is inconsistent with the United States and
Pennsylvania constitutions, it remains the law of this Commonwealth. See
Commonwealth v. Forbes, 867 A.2d 1268, 1279 (Pa.Super. 2005)
(reiterating that “[i]t is well settled . . . that until the Supreme Court
overrules a decision of this Court, our decision is the law of this
Commonwealth” (citation omitted)).
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means for the confrontation with [the victim] more promptly than would
otherwise have been the case.” Id. at 38.
Likewise, in the case sub judice, Officer Crenshaw detained appellant
without reasonable suspicion and then transported him to the scene of the
accident, where Hill identified him as the individual who fled the scene.
Thus, the illegal detention merely hastened Hill’s identification of appellant.
A hastened identification does not connect unlawful police activity to
ordinary eyewitness observations, much less subject eyewitness testimony
to suppression as fruit of the poisonous tree.
As a panel of this court noted in Santiago, we have consistently
applied Garvin’s holding in similar cases. For example, in Commonwealth
v. Howard, 659 A.2d 1018 (Pa.Super. 1995), this court addressed a
scenario where a defendant was illegally detained and fingerprinted, and as
a result of this illegal detention, the police were able to learn his true
identity and showed his picture to the victim. Id. at 1020-1021. The victim
positively identified the defendant as the perpetrator, and the defendant
moved to suppress this out-of-court identification as fruit of the poisonous
tree. Id. at 1021-1022. The Howard court concluded that, “no law abiding
society could tolerate a presumption that but for the illegal arrest the
suspect would never have been required to face his [or her] accusers.” Id.
at 1022 (citations omitted). As in Garvin, the individual who made the
out-of-court identification was not responsible for the illegal detention.
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Accordingly, the Howard court held that the trial court properly denied the
defendant’s suppression motion. Id. at 1023.
Here, it is apparent that Garvin and Howard, rather than Santiago,
control in this matter. Hill witnessed the accident and ensuing events before
Officer Crenshaw detained appellant at least one-half mile away from where
the stop occurred. Hill was not involved with appellant’s detention in any
way, had no prior communication with Officer Crenshaw, and her
observations arose independently from Officer Crenshaw’s police activity.
Eventually, appellant would have confronted Hill as the witness to the events
in question. Based on the foregoing, we find that the trial court did not
abuse its discretion in denying appellant’s motion to suppress the physical
evidence and Hill’s out-of-court identification as fruit of the poisonous tree.
In his final claim, appellant contends that the out-of-court
identification procedure was unduly suggestive because the police
transported him to the accident scene in handcuffs in the back of a police
SUV. (Appellant’s brief at 23-24.) According to appellant, the police
informed Hill that they had someone in custody and asked her to identify
him. (Id.) Appellant also argues that the out-of-court identification was
unreliable given discrepancies in the description of the perpetrator and Hill’s
distance from appellant at the time of her identification. (Id. at 24-25.) For
the following reasons, we disagree.
As both the Pennsylvania Supreme Court and this
Court have recognized, the suggestiveness of police
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tactics in the identification process is one factor to
consider in determining whether to admit
identification evidence, but suggestiveness alone will
not necessarily cause the evidence to be excluded.
Instead [i]t is the likelihood of misidentification
which violates a defendant’s right to due process,
and it is this which [is] the basis of the exclusion of
evidence. The United States Supreme Court has
stated that a pre-trial identification will not be
suppressed unless it can be shown that the
identification procedure was so impermissibly
suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.
Commonwealth v. Vanderlin, 580 A.2d 820, 824 (Pa.Super. 1990)
(citations and internal quotation marks omitted). “[T]he reliability of an
identification is the linch pin [sic] in determining whether the identification
testimony is admissible. Courts must look to the totality of the
circumstances to determine whether an identification is reliable.”
Id. (citation omitted).
Instantly, Hill testified that she saw appellant from less than 15 feet
away and could clearly see his face. (Notes of testimony, 7/8/15 at 9-10.)
Hill further testified that although appellant had changed his shirt, she was
able to identify him from his face, and she “looked at him dead in his eyes
like he’s looking at me now.” (Id. at 11, 22.) The record further reflects
that Hill made the on-scene identification just 20 to 25 minutes after the
incident. (Id. at 11.)
Upon review, we find that appellant has failed to demonstrate that
Hill’s out-of-court identification was unreliable or that the procedure was
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impermissibly suggestive. Appellant complains that he was handcuffed in
the back of a police SUV and that the police asked Hill to make an
identification. (Id. at 20-21, 38.) However, the fact that appellant was
handcuffed and the officers asked Hill whether or not she could identify him
as the perpetrator is not unduly suggestive. See Commonwealth v. Hale,
85 A.3d 570, 575 (Pa.Super. 2014) (stating, “[t]he fact that [a]ppellant was
handcuffed and police indicated that they wanted her to see if she could
identify [a]ppellant are not facts that give rise to an impermissibly
suggestive identification.” (citations omitted)), affirmed, 128 A.3d 781 (Pa.
2015). “Indeed, we have regularly held that a prompt one-on-one
identification enhances the reliability of the identification.” Id. at 574
(citations omitted). Since we find that the out-of-court identification was not
unduly suggestive, it is not necessary to determine whether Hill’s
subsequent in-court identification had an independent basis.
Accordingly, for all the foregoing reasons, we affirm appellant’s
November 19, 2015 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/18
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