Com. v. Gannaway, S.

J. S34033/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SHAKUR D. GANNAWAY, : No. 1000 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered August 4, 2010,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0003906-2009
BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 09, 2020
Shakur D. Gannaway appeals from the August 4, 2010 judgment of
sentence, entered in the Court of Common Pleas of Berks County, after a jury
convicted him of robbery, theft, receiving stolen property, terroristic threats,
conspiracy to commit robbery, conspiracy to commit theft, conspiracy to
commit receiving stolen property, and conspiracy to commit terroristic
threats.1 Appellant was sentenced to an aggregate term of 15 to 30 years’
incarceration. After careful review, we affirm the judgment of sentence.
The trial court summarized the facts of this case as follows:
On May 25, 2009, at approximately 1:15 a.m.,
Peter Manicioto was working as a cashier at the Lukoil
mini-market at 315 Penn Avenue, West Reading,
Pennsylvanian [sic], when he witnessed two
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 3925(a), 2706(a)(1), and four
violations of 18 Pa.C.S.A. § 903(a)(1), respectively.
J. S34033/20
individuals enter the store together. The first
individual, later identified as Rashad Bair, was wearing
a red[ ]shirt and a wig that had shoulder length hair.
The second individual, later identified as appellant,
was wearing a camouflage shirt and camouflage hat
with a black wig. They were carrying a black plastic
bag. Both men approached the cashier counter, and
appellant told Bair “do it, do it.” Bair then pulled out
a gun from the black plastic bag and said “it’s a
stick-up.” Manicioto placed the cash drawer on the
counter and gave them the cash drawer. At that time,
Manicioto did not know whether the gun was real or
fake and feared getting shot. Appellant then took the
money from the cash drawer and placed it in the black
bag. Manicioto testified that around $150 was stolen,
and that the cash drawer did not contain any
twenty-dollar bills. During the commission of the
crime, Manicioto stared at the two men. The two men
then fled the store. Once they left the Lukoil
mini-market, Manicioto pushed a silent alarm and
called the police. The West Reading Police arrived
approximately thirty seconds after Manicioto pushed
the silent alarm, and he told them what had occurred.
On the night of May 25, 2009, Oswald Herbert resided
at 314 Reading Avenue, West Reading, Pennsylvania,
a corner property half a block from the Lukoil
mini-market. At approximately 1:15 a.m., Herbert
saw a pair of individuals running at a high rate past
his window on 4th Avenue towards Reading Avenue,
meaning they were running away from the nearby
Lukoil mini-market. After they crossed Reading
Avenue, they got into a black SUV which then sped
off. Herbert went to the Lukoil and learned that it had
been robbed. While walking towards the Lukoil, he
found a camouflage hat on the ground which he later
gave to the police. He also reported what he saw to
the police.
On May 25, 2009, at approximately 1:20 a.m., Officer
Christopher Dinger of the Reading Police Department
received a report about a robbery that had occurred
at the Lukoil in West Reading, and a lookout call went
out for a black SUV that had just fled the scene of the
-2-
J. S34033/20
crime. At the time, Officer Dinger was on patrol in
Reading. Around fifteen seconds after he heard the
dispatch, he observed a black Ford Explorer (a[n]
SUV) traveling away from West Reading at a high rate
of speed. Officer Dinger traveled behind the Ford
Explorer, which started to increase its speed and ran
through stop signs and red lights without stopping.
Officer Dinger activated his emergency lights and
siren, but the Ford Explorer continued to flee, only
stopping when it crashed into two parked cars after
about ten to twelve blocks of pursuit. At that moment,
Officer Dinger witnessed the driver and the front seat
passenger exit the vehicle and flee the scene.
Officer Dinger gave chase on foot and apprehended
the front seat passenger, Kemar Williams.
Officer Justin Uczynski of the Reading Police
Department assisted Officer Dinger in his vehicle
pursuit of the black Ford Explorer. Officer Uczynski
observed the vehicle crash into two park[ed] cars and
a passenger exiting the Ford Explorer and fleeing on
foot. Officer Uczynski apprehended that person,
whom he identified at trial as appellant. At the time
of appellant’s apprehension by Officer Uczynski,
appellant was wearing a camouflage t-shirt.
Officer Uczynski searched appellant, and found
various amounts of currency on him, a total of $158
in one, five, and ten dollar bills. Significantly,
appellant did not have any twenty[-]dollar bills.
Officer Nick Karetas of the West Reading Police
Department was on patrol on May 25, 2009. At
1:18 a.m., he was dispatched to the Lukoil
mini-market on Penn Avenue. Officer Karetas was
only two blocks away from the Lukoil when he
received the call, so he arrived at the Lukoil within
seconds after receiving the report of the robbery.
Officer Karetas spoke to Manicioto, the clerk, and
Mr. Herbert, the neighbor, and learned that two men
robbed the store and then were seen running from the
Lukoil and getting into a black SUV. Officer Karetas
broadcasted this information to other officers within a
minute or two of arriving at the Lukoil. Sometime
later, Officer Karetas received a request from the
-3-
J. S34033/20
Reading Police Department to take Manicioto into the
city to see if Manicioto could identify the two persons
the police had in custody. At the first location . . . the
police had Kemar Williams in custody, who Manicioto
was not able to identify. However, at the second
location a few blocks away from the first location, the
police had appellant in custody, who Manicioto
identified as one of the persons who robbed the Lukoil.
Officer Karetas later obtained a search warrant for the
black Ford Explorer, wherein he found a black wig.
Trial court Rule 1925(a) opinion, 2/19/20 at 6-8 (citations to the record,
footnotes, and extraneous capitalization omitted).
Procedurally, as noted by the trial court, “[a]ppellant filed a series of
documents before trial[,] challenging [Manicioto’s] show-up identification [of
appellant].” (Id. at 11.) On April 9, 2010, after a hearing, the trial court
denied appellant’s motion to suppress. The case proceeded to trial by jury.
On May 26, 2010, the jury convicted appellant of the aforementioned offenses.
Appellant was sentenced on August 4, 2010.
For our purposes, the relevant procedural history begins with the
reinstatement of appellant’s post-sentence and direct appeal rights on
January 14, 2019.
[T]he [trial] court appointed Christopher Connard,
Esquire, as counsel for appellant. Attorney Connard
filed post-sentence motions on February 26, 2019.[2]
A hearing was held on appellant’s post-sentence
motions on April 11, 2019. Following this hearing, the
[trial] court denied appellant’s post-sentence motions
on June 11, 2019.
2The certified record reflects that on February 8, 2019, Attorney Connard filed
a post-sentence motion on appellant’s behalf. On February 26, 2019, he filed
an amended post-sentence motion.
-4-
J. S34033/20
Attorney Connard filed a [timely] appeal from
appellant’s August 4, 2010 judgment of sentence on
behalf of appellant and, on June 25, 2019, the [trial]
court ordered Attorney Connard to file a concise
statement. However, before Attorney Connard filed a
concise statement, he filed a petition to withdraw on
August 28, 2019, because communications between
Attorney Connard and appellant had broken down. A
hearing on Attorney Connard’s petition to withdraw
was held on November 18, 2019, and the [trial] court
granted Attorney Connard’s petition to withdraw on
that day. On December 12, 2019, the Court
appointed David Long, Esquire, as counsel for
appellant. However, on December 17, 2019, Attorney
Long filed a motion to withdraw as counsel. The [trial]
court granted Attorney Long’s motion to withdraw as
counsel and appointed John Fielding, Esquire, as new
counsel for appellant on December 18, 2019.
Attorney Fielding filed a concise statement on
January 21, 2020.[3]
Id. at 4-5. The trial court filed its Rule 1925(a) opinion on February 19, 2020.
Appellant raises the following issues for our review:
[1.] Whether the court failed to suppress and/or
exclude the questionable identification of the
appellant because appellant was forced to
3 On December 18, 2019, appellant’s present counsel was appointed and
granted 30 days to file a Rule 1925(b) concise statement of errors complained
of on appeal. “A failure to comply with such direction may be considered by
the [a]ppellate court as a waiver of all objections to the [o]rder, rule, or other
matters complained of.” (Trial court order, 12/18/19.) The 30th day was
January 17, 2020. Appellant’s Rule 1925(b) statement was filed on
January 21, 2020, and was, therefore, untimely. Nevertheless, because the
trial court addressed the issues raised by appellant in its Rule 1925(a) opinion,
we will overlook the untimeliness of appellant’s concise statement and address
the merits of the issues contained therein. See Commonwealth v.
Thompson, 39 A.2d 335, 340 (Pa.Super. 2012) (holding when counsel files
untimely Rule 1925(b) statement and trial court addresses issues we need not
remand and may address the merits of the issues presented).
-5-
J. S34033/20
participate in a “show-up”4 in which the alleged
victim identified the appellant as being involved
in the alleged crime under circumstances under
which the identifications were made were
inherently suggestive and that at that time the
identifications were made, the appellant was
clearly in police custody and handcuffed, all in
violation of appellant’s rights under the United
States and Pennsylvania Constitutions?
[2.] Whether the court should have granted a new
trial because the verdict was against the
sufficiency and/or the weight of the evidence?
Appellant’s brief at 6 (bolding and full capitalization omitted).5
Appellant argues that the suppression court erred in denying his
suppression motion where the out-of-court identification procedure was
unduly suggestive because, when Manicioto identified appellant, the police
“had [a]ppellant in custody, in handcuffs[,] and [appellant] had been
identified by the police as a suspect.” (Appellant’s brief at 16 (quotation marks
omitted).) For the following reasons, we disagree.
4 A “show-up” is a one-on-one confrontation between the victim and a single
suspect. (See McElrath v. Commonwealth, 592 A.2d 740, 742-743
(Pa.Super. 1991); Commonwealth v. Carter, 414 A.2d 369, 372
(Pa.Super. 1979).
5 We note that the trial court reinstated appellant’s post-sentence motion and
direct appeal rights nunc pro tunc on January 14, 2019. Counsel timely filed
a post-sentence motion on February 8, 2019. The run-date for purposes of
Pa.R.Crim.P. 720(B)(3)(a) was June 10, 2019, 120 days from the filing of
appellant’s post-sentence motion. (See 1 Pa.C.S.A. § 1908.) Appellant’s
post-sentence motion was denied by the trial court on June 11, 2020, after
the 120-day time limitation expired. However, because appellant filed his
appeal on June 20, 2019, well within the 30-day time limit to appeal from a
post-sentence motion that is denied by operation of law, we have jurisdiction
to entertain this appeal. (See Pa.R.Crim.P. 720(A)(2)(b).)
-6-
J. S34033/20
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
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 within the suppression court’s sole province as factfinder to pass on the
credibility of witnesses and the weight to be given their testimony.”
Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa.Super. 2019) (citation
omitted). Further,
[i]n 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
-7-
J. S34033/20
opportunity of the witness 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. Kearney, 92 A.3d 51, 65 (Pa.Super. 2014) (citation
omitted), appeal denied, 101 A.3d 102 (Pa. 2014); see also
Commonwealth v. Hale, 85 A.3d 570, 575 (Pa.Super. 2014) (finding fact
that defendant was handcuffed and police indicated that they wanted victim
to see if she could identify defendant were not facts that gave rise to an
impermissibly suggestive identification), affirmed, 128 A.3d 781 (Pa. 2015);
Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.Super.2003) (affirming
conviction based on victim’s one-on-one crime-scene identification of
defendant viewed alone in police van, wearing handcuffs, where police said
they had someone for victim to identify and had found him running down the
street sweaty and tired), appeal denied, 851 A.2d 142 (Pa. 2004).
Applying the factors to be considered in determining the propriety of
admitting identification evidence, the trial court found that:
Manicioto had a clear opportunity to witness appellant
because appellant stood in front of him up-close at the
time of the crime and Manicioto had an unobstructed
opportunity to view appellant’s face at that time;
Manicioto had a high degree of attention at that time
because he was held at gunpoint and feared for his
-8-
J. S34033/20
life; Manicioto provided an accurate description of
what appellant looked like and what he was wearing
at the time of the crime to the police; Manicioto was
able to clearly identify appellant at the “show-up”
identification; and, significantly, only around five
minutes had passed since the time of the crime and
when the identification was made.
While Manicioto saw appellant in handcuffs[6] and in
police custody when he identified appellant, our
Superior Court has consistently held that the fact that
an appellant was in handcuffs and in police custody at
the time the identification was made is not a “special
element of unfairness” that makes the identification
so suggestive as to give rise to an irreparable
likelihood of misconduct.
Trial court Rule 1925(a) opinion, 2/19/20 at 12 (extraneous capitalization
omitted). See also notes of testimony, 4/9/10 at 93-95.7
6 We note that the trial court acknowledged there was conflicting testimony
as to whether appellant was in handcuffs at the time of the identification.
“Because Manicioto testified that he viewed appellant in handcuffs, and
because the court, in its findings of fact, stated that appellant was in handcuffs
at the time of identification, the court will consider appellant to have been in
handcuffs at the time the identification was made.” (Rule 1925(a) opinion,
2/19/20 at 12 n.12 (extraneous capitalization omitted).)
7 Additionally, the suppression court made findings of fact and further found
that:
Mr. Manicioto testified that no one in any way
persuaded him or suggested to him to identify the
defendant, and he testified that the fact that the
defendant was in handcuffs and apparently or
obviously in police custody, those facts did not in any
way influence his identification or recognition of the
defendant. Rather, he was simply able to recognize
the defendant’s facial features.
Notes of testimony, 4/9/10 at 94-95.
-9-
J. S34033/20
After a thorough review of the record, we concur with the trial court’s
analysis. The trial court’s factual findings are supported by the record and its
legal conclusions drawn from those facts are correct. Appellant has failed to
demonstrate that Manicioto’s out-of-court identification was unreliable or that
the procedure was impermissibly suggestive.8
Appellant’s second issue combines two separate issues; i.e., whether
“the verdict was against the sufficiency and/or weight of the evidence.”
(Appellant’s brief at 6.) Appellant asserts the same argument in support of
both claims. Specifically, appellant maintains that because “the prejudicial
and unduly suggestive identification of the [a]ppellant, combined with the trial
court’s failure to give a Kloiber instruction, is the central issue in the case,”
that the evidence was insufficient as a matter of law and against the weight
of the evidence. (Id. at 23-24, 25-26.)
Claims challenging the weight of the evidence and sufficiency of the
evidence differ.
8 With regard to his identification issue, appellant also asserts that the trial
court failed to give a Kloiber instruction to the jury. (Appellant’s brief at 18,
21-22; see Commonwealth v. Kloiber, 106 A.2d 820, 826 (1954) (holding
that where identification of defendant is doubtful, court should warn jury that
identification testimony must be received with caution).) Having found that
the identification was not unduly suggestive, this issue is moot. Further,
appellant does not allege that trial counsel requested a Kloiber instruction.
Thus, to the extent that appellant is challenging the trial court’s failure to give
the instruction, the issue is waived as it cannot be raised for the first time on
direct appeal. See Commonwealth v. Cousar, 928 A.2d 1025, 1043 (Pa.
2007); Pa.R.A.P. 302. The Kloiber instruction issue is also waived because
appellant failed to raise the issue in either his Rule 1925(b) statement or his
statement of questions presented.
- 10 -
J. S34033/20
[A] challenge to the weight of the evidence is distinct
from a challenge to the sufficiency of the evidence in
that the former concedes that the Commonwealth has
produced sufficient evidence of each element of the
crime, but questions which evidence is to be believed.
Commonwealth v. Richard, 150 A.3d 504, 516 (Pa.Super. 2016) (citation
and quotation marks omitted).
A reading of appellant’s arguments, in support of his challenges, and a
review of his testimony at trial reveals that appellant is, in essence,
challenging the credibility of the Commonwealth’s witnesses while attempting
to bolster his own. Appellant does not dispute the general facts of the case.9
Rather, appellant contends he was not one of the participants in the robbery
but, rather, an innocent passenger in the vehicle used in the robbery. (See
notes of testimony, 5/26/10 at 264-267, 270, 273, 287-288.) Such an
argument goes to the weight, not the sufficiency, of the evidence.10 See
Commonwealth v. Smyser, 105 A.3d 912, 916 (Pa.Super. 2018) (noting
credibility determinations made by finder-of-fact and challenges go to the
weight, not the sufficiency of the evidence); Commonwealth v. W.H.M., Jr.,
932 A.2d 155, 160 (Pa.Super. 2007) (finding claim that jury should have
9 Appellant’s recitation of the factual history of the case is a reiteration of the
facts set forth in the trial court’s Rule 1925(a) opinion and quoted herein.
(See appellant’s brief at 12-17.)
10 Even had appellant raised a proper sufficiency of the evidence claim, the
trial court’s Rule 1925(a) opinion thoroughly addresses the sufficiency of the
evidence regarding each offense of which appellant was convicted, and found
that the Commonwealth had proven every element beyond a reasonable
doubt. (See trial court Rule 1925(a) opinion, 2/19/20 at 13-24.) We concur.
- 11 -
J. S34033/20
believed appellant’s version of event rather than victim’s goes to weight, not
sufficiency of evidence). Accordingly, we construe appellant’s argument as a
weight claim.
In reviewing the trial court’s exercise of discretion in ruling on the weight
claim, we review “the underlying question of whether the verdict was against
the weight of the evidence.” Commonwealth v. Trippett, 932 A.2d 188,
189 (Pa.Super. 2007) (citation omitted). It is not our role, as a reviewing
court, to reweigh the evidence and substitute our judgment for that of the
fact-finder. See Commonwealth v. Mitchell, 902 A.2d 430, 449 (Pa. 2006).
Further, “[r]esolving contradictory testimony and questions of credibility are
matters for the factfinder.” Commonwealth v. Mikitiuk, 213 A.3d 290, 305
(Pa.Super. 2019) (citation omitted). “The essence of appellate review for a
weight claim [lies] in ensuring that the trial court’s decision has record
support. Where the record adequately supports the trial court, the trial court
has acted within the limits of its discretion.” Commonwealth v. Clay, 64
A.3d 1049, 1054 (Pa. 2013) (citations and quotations omitted). To warrant a
new trial on weight of the evidence grounds, “the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Commonwealth v. Mucci, 143 A.3d 399, 411 (Pa.Super. 2016)
(citation omitted), appeal denied, 168 A.3d 1252 (Pa. 2017).
In his brief, appellant invites this court to do nothing more than assess
the credibility of the Commonwealth’s witnesses and reweigh the evidence in
- 12 -
J. S34033/20
an attempt to convince us to reach a different result than the jury reached;
to-wit, that he was not involved in the robbery and was the victim of an
impermissibly suggestive identification. We decline appellant’s invitation. The
jury, as fact-finder, had the duty to determine the credibility of the testimony
and evidence presented at trial. Appellate courts cannot and do not substitute
their judgment for that of the fact-finder. Here, the trial court did not abuse
its discretion in concluding that “in light of all the evidence at trial which
identifie[d] [a]ppellant as one of the men who entered and robbed the Lukoil
mini-market, the jury’s verdict on all counts does not shock the [trial c]ourt’s
sense of justice.” (Trial court Rule 1925(a) opinion, 2/19/20 at 24.)
Appellant’s weight of the evidence claim is, therefore, without merit.
Insofar as the verdict was based on reason and not conjecture, we find
no ground for granting appellant’s motion for a new trial.
Judgment of sentence affirmed. Appellant’s application for substitution
of appointed counsel is denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/09/2020
- 13 -