Antoine D. Pittman, etc. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
ANTOINE D. PITTMAN, S/K/A
ANTOINE DAUNTE PITTMAN
MEMORANDUM OPINION *
v. Record No. 1666-96-1 BY JUDGE WILLIAM H. HODGES
JUNE 24, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Norman Olitsky, Judge
Brenda C. Spry, Deputy Public Defender, for
appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Antoine D. Pittman (appellant) was convicted by a jury of
robbery and using a firearm in the commission of robbery.
Appellant contends that the evidence was insufficient to sustain
his convictions. For the reasons that follow, we affirm.
In determining the sufficiency of the evidence to support a
conviction where a witness' identification is challenged, we look
to the reliability factors enunciated in Neil v. Biggers, 409
U.S. 188 (1972), as significant circumstances that may be
considered, along with other evidence. See Smallwood v.
Commonwealth, 14 Va. App. 527, 530, 418 S.E.2d 567, 568 (1992)
(applying the Biggers analysis even though the accused did not
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appeal trial court's denial of his motion to suppress the
identifications). These factors include
the opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy of
the witness' prior description of the
criminal, the level of certainty demonstrated
by the witness at the confrontation, and the
length of time between the crime and the
confrontation.
Biggers, 409 U.S. at 199-200.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the
evidence proved that around 2:20 p.m. on October 23, 1995, Ladrew
Dennis was robbed at gunpoint after he returned to his delivery
truck. Dennis testified that he clearly saw the robber, who was
less than a foot away from him. Twenty to thirty minutes after
the robbery, Detective David Dempsey showed Dennis loose
photographs and a book containing mugshots. At the time, Dennis
was "nervous" and "excited," and, although some of the photos
"were close," he did not identify anyone because he was "[n]ot
absolutely" "100 percent sure at that time." Dennis described
the robber as having short hair, however, he could not say
whether the robber's hair was braided. He initially described
the robber as weighing between 150 and 170 pounds. On November
1, 1995, nine days after the robbery, Dennis viewed a six-man
photo array containing appellant's photograph from the mugshot
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book, and he positively identified appellant as the robber. The
other five photos in the array had not previously been viewed by
Dennis. Dennis unequivocally identified appellant at trial as
the man who robbed him.
Detective Dempsey testified that Dennis described the robber
"as a black male, approximately 18 years of age, 5'10" to 6 foot,
150 pounds, brown eyes, black hair, and the hair was short and
curly." According to Dempsey, appellant was "about 5'9", [and he
weighed] something like, 200 pounds" on November 1, 1995, the day
of his arrest. Dempsey also stated that at the time of arrest,
appellant's hair was not the same as it was in court. Dempsey
testified that, on November 1, 1995, appellant had "corn-row type
hair." Dempsey elaborated, "I wouldn't call it braided. No. I
wouldn't call it braided. Well, braided close to the head
maybe."
The Commonwealth's evidence showed that Dennis had an
adequate opportunity to view the robber at close range, that he
paid a great deal of attention to the robber and that he
unequivocally identified appellant's photograph in a photo array
nine days after the crime. Moreover, Dennis positively
identified appellant in court as the robber. The fact that
Dennis failed to identify appellant's photo just after the
robbery or that he erred in estimating appellant's weight went to
the weight of the evidence and were for the fact finder to
resolve. Moreover, the description of the robber's hair style at
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the time of the crime was not so incongruous with Dempsey's
description as to render it unreliable or incredible. The fact
finder is capable of "measuring intelligently the weight of
identification testimony that has some questionable feature
. . . . The defect, if there be one, goes to weight and not to
substance." Manson v. Brathwaite, 432 U.S. 98, 116-17 (1977).
The fact finder believed the Commonwealth's evidence and
rejected the alibi evidence presented by appellant. "It is
fundamental that 'the credibility of witnesses and the weight
accorded their testimony are matters solely for the fact finder
who has the opportunity of seeing and hearing the witnesses.'"
Collins v. Commonwealth, 13 Va. App. 177, 179, 409 S.E.2d 175,
176 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382,
337 S.E.2d 735, 736-37 (1985)). The Commonwealth's evidence was
competent, was reliable, was not inherently incredible, and was
sufficient to prove beyond a reasonable doubt that appellant was
guilty of robbery and use of a firearm. Accordingly, appellant's
convictions are affirmed.
Affirmed.
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